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


MEMORANDUM

SUBJECT:  RCRA Enforcement Policy  Compendium Distribution
FROM:    usvisan Bromm, Director
      /   RCRA Enforcement Divis

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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                       PB92-963624
                       OWPE92RE001C
                       September 1992
RCRA ENFORCEMENT
POLICY COMPENDIUM

        Volume
      Office of Waste Programs Enforcement
      U.S. Environmental Protection Agency
         Washington, DC 20460

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                  INTRODUCTION - VOLUME  III  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 n includes Sections 4 through 8, and Sections 9 through 15 are in
Volume ffl. 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          CiviVCriminal Actions
             Section 3          Corrective Action
             Section 4          Federal Facilities
             Section 5          Federal/State Relations
             Section 6          Financial Responsibility :
             Section 7          Ground Water
             Section 8          Interim Status
             Section 9          Off-Site Policy
             Section  10         Permitting
             Section  11         Referrals
             Section  12         Settlement
             Section  13         Violation Classification

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

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

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

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   Section 9
Off-Site Policy

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                                                          CO
                                                          w
                                                          n
                                                          t-3
                                                          M
                                                          o
                                                          a

                                                          ID
OFF-SITE  POLLCY

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     Section 9 - Off-Site Policy - 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
Revised Procedures for Implementing Off-Site Response Actions

9834.11

11/13/87
TITLE

DIRECTIVE NO.
DATE EFFECTIVE/
ISSUED

SOURCE

OTHER
RELEVANT
SECTIONS
Off-Site Policy Implementation Issues


08/29/88

OWPE

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Nov. 13, 1987                                          9834.11
   REVISED  PROCEDURES  FOR IMPLEMENTING  OFF-SITE RESPONSE ACTIONS
I.  INTRODUCTION

    The off-site policy describes procedures that should be
observed when a response action under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) or
Section 7003 of RCRA involves off-site storage, treatment or
disposal of CERCLA waste.  The procedures also apply to actions
taken jointly under CERCLA and another statute.

    The purpose of the off-site policy is to avoid having CERCLA
wastes contribute to present or future environmental problems by
directing these wastes to facilities determined to be
environmentally sound.  It is EPA's responsibility to ensure that
the criteria for governing off-site transfer of CERCLA waste
result in decisions that are environmentally sensible and that
reflect sound public policy.  Therefore, in developing
acceptability criteria, the Agency has applied environmental
standards and other sound management practices to ensure that
CERCLA waste will be appropriately managed.

    EPA issued the original off-site policy in May 1985.   See
"Procedures for Planning and Implementing off-Site Response
Actions", memorandum from Jack W. McGraw to the Regional
Administrators.  That policy was published in the Federal Register
on November 5, 1985.  The 1986 amendments to CERCLA, the Superfund
Amendments and Reauthorization Act (SARA), adopted EPA's policy
for off-site transfer of CERCLA wastes, with some modifications.
CERCLA 121(d)(3) requires that hazardous substances, pollutant's
or contaminants transferred off-site for treatment, storage or
disposal during a CERCLA response action be transferred to a
facility operating in compliance with 3004 and 3005 of RCRA and
other applicable laws or regulations.  The statute also requires
that receiving units at land disposal facilities have no releases
of hazardous wastes or hazardous constituents.  Any releases from
other units at a land disposal facility must also be controlled by
a RCRA or equivalent corrective action program.  While the
original policy required compliance with RCRA and other applicable
laws, SARA goes beyond the original policy, primarily by
prohibiting disposal at units at a land disposal facility with
releases, rather than allowing the Agency to judge whether the
releases constituted environmental conditions that affected the
satisfactory operation of a facility.

    The off-site policy has been revised in light of the mandates
of SARA.  This revised policy also extends the SARA concepts to
certain situations not specifically covered by the statute.  These
requirements apply to CERCLA decision documents signed, and RCRA
7003 actions taken, after enactment of SARA.  Specifically, this
policy covers:
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                                 2                      9834.11

        Extending SARA's "no release" requirement to all RCRA
        units receiving CERCLA waste, not just units at RCRA land
        disposal facilities;

        Expanding SARA's release prohibition to include releases
        of CERCLA hazardous substances, in addition to releases of
        RCRA hazardous waste and hazardous constituents;

       Addressing releases from other units at RCRA treatment and
        storage facilities; and

        Addressing off-site transfer to non-RCRA facilities.

The revised policy also reinterprets the May 1985 policy as it now
applies to CERCLA decision documents signed, and RCRA 7003
actions taken, prior to the enactment of SARA.

    The revised off-site policy is effective immediately upon
issuance.  It is considered to be an interim policy as key
elements of the policy will be incorporated in a proposed rule to
be published in the Federal Register.  As part of that rulemaking,
the policy will be subject to public comment.  Comments received
during that period may cause additional revisions to the policy.
The final rule will reflect the final policy under CERCLA
121(d)(3) and EPA will issue a revised implementation policy
memorandum if necessary.


II.  APPLICABILITY

    There are a number of variables which will determine
whether and how the off-site policy applies:  waste type,
authority, funding source,  and whether the decision document or
order supporting the clean-up was signed before or after the
enactment of SARA (i.e., before or after October 17, 1986).  In
order to determine which elements of the policy apply to a
specific CERCLA cleanup each factor must be considered.

    The first factor to consider is the type of waste to be
transferred.  The revised policy applies to the off-site
treatment, storage or disposal of all CERCLA waste.  CERCLA wastes
include RCRA hazardous wastes and other CERCLA hazardous
substances, pollutants and contaminants.  RCRA hazardous wastes
are either listed or defined by characteristic in 40 CFR Part 261.
CERCLA hazardous substances are defined in 40 CFR 300.6.

    Because RCRA permits and interim status apply to specific
wastes and specific storage, treatment or disposal processes, the
Remedial Project Manager (RPM)  or on-Scene Coordinator (OSC) must
determine that the facility's permit or interim status authorizes
receipt of the wastes that would be transported to the facility
and the type of process contemplated for the wastes.  Therefore,
it is important that facility selection be coordinated with RCRA
personnel.

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                               - 3 -                    9834.11

     A CERCLA hazardous  substance  that  is not a RCRA hazardous
waste or hazardous  constituent  (i.e.,  non-RCRA waste) may be taken
to  a RCRA facility  if it  is  not otherwise  incompatible  with the
RCRA waste,  even  though receipt of that waste is not expressly
authorized under  interim  status or in  the  permit.  Non-RCRA wastes
can also be  managed at  non-RCRA facilities.  Criteria applicable
to  CERCLA wastes  that can be disposed  of at non-Subtitle C
facilities are  discussed  later in this revised policy.

     The  second  factor to  consider in determining whether this
revised  policy  applies  is the statutory authority  for the action.
This revised off-site policy applies to any remedial or removal
action involving  the off-site transfer of  any hazardous substance,
pollutant, or contaminant under any CERCLA authority or under RCRA
7003.   This policy also  applies  to response actions taken under
311 of  the  Clean Water Act, except for cleanups of petroleum
products.  The  policy also covers cleanups at Federal facilities
under 120 of SARA.

     The  third factor to assess is the  source of funding.  The
revised  policy  applies  to all Fund-financed response actions,
whether  EPA  or  the  State  is  the lead agency.  The  policy does not
apply to State-lead enforcement actions (even at NPL sites) if no
CERCLA funds are  involved.   It does apply  to State-lead
enforcement  actions where EPA provides any site-specific funding
through  a Cooperative Agreement or Multi-Site Cooperative
Agreement, even though  the State  may be using its  own enforcement
authorities  to  compel the cleanup.  Similarly, non-NPL  sites are
covered  by this policy  only  where there is an expenditure of Fund
money or where  the  cleanup is undertaken under CERCLA authority.

     The  final factor that affects how  this revised policy applies
is  the date  of  the  decision  document.  As  noted earlier, there are
two classes  of  actions  subject to slightly different procedures
governing off-site  transfer:  first, those actions resulting from
pre-SARA decision documents  or RCRA 7003  orders issued prior to
October  17,  1986, are subject to  the May 1985 policy as updated by
this  revised policy; and  second,  those actions resulting from
post-SARA decision  documents or RCRA 7003 orders  issued after
October  17,  1986, are subject to  the requirements  of SARA as
interpreted  and expanded  by  this  revised policy.   Although the
procedures in this  policy are similar  for  these two classes of
actions,  there  are  important differences (e.g., the requirements
pertaining to releases  from  other units at a facility)   that will
be  highlighted  throughout this document.

     Compliance  with  the revised procedures is mandatory for
removal  and  remedial actions.  However, there is an emergency
exemption  for removals  if the OSC determines that  the exigencies
of  the situation  require  off-site treatment, storage or disposal
without  following the requirements.   This  exception may be used
when the OSC believes that the threat  posed by the substances
makes it  imperative  to remove the substances immediately and there
is  insufficient time to observe these  procedures without

                    -RETYPED  FROM  THE ORIGINAL-

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                               -  4  -                    9834.11

endangering public health, welfare or the environment.  In such
cases, the OSC should consider temporary solutions (e.g., interim
storage) to allow time to locate an acceptable facility.  The OSC
must provide a written explanation of his or her decision to use
this emergency exemption to the Regional Administrator within 60
days of taking the action.  In Regions in which authority to make
removal decisions has not been fully delegated by the Regional
Administrator to the OSC, the decisions discussed above must be
made by the Regional official to whom removal authority has been
delegated.  This emergency exemption is also available to OSC's
taking response actions under 311 of the Clean Water Act.


III.  DEFINITIONS

A.  Release

    For the purposes of this policy,  the term "release" is defined
here as it is defined by 101(22) of CERCLA, which is repeated in
40 CFR 300.6 of the NCP, and the RCRA 3008(h) guidance
("Interpretation of Section 3008(h) of the Solid Waste Disposal
Act", memorandum from J. Winston Porter and Courtney M. Price to
the Regional Administrators, et al.,  December 16, 1985).  To
summarize, a release is any spilling, leaking, pumping, pouring,
emitting, emptying, discharging,  injection, escaping, leaching,
dumping or disposing to the environment.  This includes releases
to surface water, ground water, land surface, soil and air.

    A release also includes a substantial threat of a release. In
determining whether a substantial threat of release exists, both
the imminence of the threat and the potential magnitude of the
release should be considered.  Examples of situations where a
substantial threat of a release may exist include a weakened or
inadequately engineered dike wall at a surface impoundment, or a
severely rusted treatment or storage tank.

    De minimis releases from receiving units are exempt; that is,
they are not considered to be releases under the off-site policy.
De minimis releases are those that do not adversely affect public
health or the environment, such as releases to the air from
temporary opening and closing of bungs, releases between landfill
liners of 1 gallon/acre/day or less,  or stack emissions from
incinerators not otherwise subject to Clean Air Act permits.
Releases that need to be addressed by implementing a contingency
plan would not normally be considered de minimis releases.

    Federally-permitted releases, as defined by CERCLA 101(10)
and 40 CFR 300.6, are also exempt.   These include discharges or
releases in compliance with applicable permits under RCRA, the
Clean Water Act, Clean Air Act, Safe Drinking Water Act, Marine
Protection, Research and Sanctuaries Act, and Atomic Energy Act or
analogous State authorities.
                   -RETYPED  FROM THE ORIGINAL-

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                               -  5  -                    9834.11

    For purposes of this policy,  an interim status unit in RCRA
ground-water assessment monitoring (under 40 CFR 265.93)  or a
permitted unit in compliance monitoring (under 40 CFR 264.99) is
not presumed to have a release.  EPA will evaluate available
information, including the data which led to a determination of
the need for assessment or compliance monitoring, data gathered
during assessment monitoring, and any other relevant data,
including that gathered from applicable compliance inspections.  A
determination of unacceptability should be made when information
will support the conclusion that there is a probable release to
ground water from the receiving unit.  Finding a release can
happen at any time before, during or after an assessment or
compliance monitoring program.

    On the other hand, it is not necessary to have actual sampling
data to determine that there is a release.  An inspector may find
other evidence that a release has occurred, such as a broken dike
or feed line at a surface impoundment.  Less obvious indications
of a release might also be adequate to make the determination.
For example, EPA could have sufficient information on the contents
of a land disposal unit, the design and operating characteristics
of the unit, or the hydrogeology of the area in which the unit is
located to conclude that there is or has been a release to the
environment.

B.  Receiving Unit

    The receiving unit is any unit that receives off-site CERCLA  ,
waste:

    (1) for treatment using BOAT, including any pretreatment or
        storage units used prior to treatment;

    (2) for treatment to substantially reduce its mobility,
        toxicity or persistence in the absence of a defined BOAT;
        or

    (3) for storage or ultimate disposal of waste not treated to
        the previous criteria.

Note that the acceptability criteria may vary from unit to unit,
and that the receiving unit may vary from transfer to transfer.

C.  Other Units

    Other units are all other regulated units and solid waste
management units (SWMU's) at a facility that are not receiving
units.

D.  Controlled Release

    In order to be considered a controlled release, the release
must be addressed by a RCRA corrective action program
(incorporated in a permit or order) or a corrective action program

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                               -  6  -                    9834.11

approved and enforceable under another applicable Federal or
delegated State authority.

E.  Relevant Violations

    Relevant violations include Class I violations as defined by
the RCRA Enforcement Response Policy (December 21, 1984, and
subsequent revisions) at or affecting a receiving unit.  A Class I
violation is a significant deviation from regulations, compliance
order provisions or permit conditions designed to:

        Ensure that hazardous waste is destined for and delivered
        to authorized facilities;

        Prevent releases of hazardous waste or constituents to the
        environment;

        Ensure early detection of such releases; or

        Compel corrective action for releases.

Recordkeeping and reporting requirements (such as failure to
submit the biennial report or failure to maintain a copy of the
closure plan at the facility)  are generally not considered to be
Class I violations.

    Violations affecting a receiving unit include all ground-water
monitoring violations unless the receiving unit is outside the
waste management area which the ground-water monitoring system was
designed to monitor.  Facility-wide Class I violations (such as
failure to comply with financial responsibility requirements,
inadequate closure plan, inadequate waste analysis plan,
inadequate inspection plan, etc.) that affect the receiving unit
are also relevant violations.

    Violations of State or other Federal laws should also be
examined for relevance, considering the significance of the
requirement that is being violated; the extent of deviation from
the requirement; and the potential or actual threat to human
health or the environment.

F.  Relevant Release

    A relevant release under this revised policy includes:

       Any release or significant threat of release of a
        hazardous substance (defined in 40 CFR 300.6)  not
        previously excluded (i.e.,  de minimis releases or
        permitted releases) at all units of a RCRA Subtitle C land
        disposal facility and at receiving units of a RCRA
        Subtitle C treatment or storage facility; and

        Environmentally significant releases of any hazardous
        substance not previously excluded at non-receiving units

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                               - 7 -                   9834.11

        at RCRA Subtitle C treatment and storage facilities and at
        all units at other facilities.

G.  Relevant Conditions

    Relevant conditions include any environmental conditions
(besides a relevant violation) at a facility that pose a
significant threat to public health, welfare or the environment or
that otherwise affect the satisfactory operation of the facility.

H.  Responsible Agency

    Determinations of acceptability to receive an off-site
transfer of CERCLA waste will be made by EPA or by States
authorized for corrective action under 3004(u) of RCRA.
References in this document to the "responsible Agency" refer only
to EPA Regions or to States with this authority.

I.  Responsible Government Official

    The responsible government official is that person authorized
in the responsible Agency to make acceptability determinations
under this revised policy.
IV.  ACCEPTABILITY CRITERIA

A.  Acceptability Criteria for Wastes Generated Under Pre-SARA
    Decision Documents

    CERCLA wastes from actions resulting from pre-SARA decision
documents and pre-SARA RCRA 7003 orders may go to a facility
meeting the following criteria:

        There are no relevant violations at or affecting the
        receiving unit; and

        There are no relevant conditions at the facility (i.e.,
        other environmental conditions that pose a significant
        threat to public health, welfare or the environment or
        otherwise affect the satisfactory operation of the
        facility).

In order to determine if there is a relevant violation, an
appropriate compliance inspection must be conducted no more than
six months before the expected date of receipt of CERCLA waste.
This inspection, at a minimum, must address all regulated units.
This inspection may be conducted by EPA, a State or an authorized
representative.  When a State conducts the inspection, it should
determine the facility's compliance status.  Where a violation or
potential violation comes to EPA's attention (e.g., through a
citizen complaint or a facility visit by permit staff), the Region
or State is expected to investigate whether a violation occurred
as soon as is reasonably possible.

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                               -  8  -                    9834.11

    The May 1985 policy does not refer specifically to releases.
Rather, a corrective action plan is required for relevant
conditions.  Therefore, in some cases, a facility receiving CERCLA
wastes from an action subject to a pre-SARA decision document may
not need to institute a program to control releases.  Releases
will be evaluated by the responsible Agency to determine whether
such releases constitute relevant conditions under this policy.

    The activities related to determining acceptability, providing
notice to facilities, regaining acceptability and implementation
procedures are discussed in the "Implementation" section of this
document, and apply to off-site transfers of waste generated under
pre-SARA and post-SARA decision documents.

B.  Acceptability Criteria for Wastes Generated Under Post-SARA
    Decision Documents

    Under this revised policy, there are three basic criteria that
are used to determine the acceptability of a facility to receive
off-site transfers of CERCLA waste generated under a post-SARA
decision document or post-SARA RCRA 7003 cleanup.  The criteria
are:

        There must be no relevant violations at or affecting the
        receiving unit;

        There must be no releases from receiving units and
       . contamination from prior releases at receiving units must
        be addressed as appropriate; and

       Releases at other units must be addressed as appropriate.

The last two criteria are applied somewhat differently, depending
on the type of facility.  These differences are described below.

    1.  Criteria Applicable to All RCRA Subtitle C Treatment.
Storage and Disposal Facilities.   The first criterion that applies
to all Subtitle C facilities is that there can be no relevant
violations at or affecting the receiving unit.  As discussed
earlier, this determination must be based on an inspection
conducted no more than six months prior to receipt of CERCLA
waste.

    A second element that applies to all Subtitle C facilities is
that there must be no releases at receiving units.  Releases from
receiving units, except for de minimis releases and State- and
Federally-permitted releases, must be eliminated and any prior
contamination from the release must be controlled by a corrective
action permit or order under Subtitle C, as described in the next
section.

    The final criterion that applies to all Subtitle C facilities,
is that the facility must have undergone a RCRA Facility
Assessment (RFA) or equivalent facility-wide investigation.  This

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                               -  9  -                    9834.11

investigation addresses EPA's affirmative duty under CERCLA
121(d)(3) to determine that there are no releases at the
facility.

    Releases of RCRA hazardous waste or hazardous constituents and
CERCLA hazardous substances are all included under the policy.
While the RFA need not focus on identifying releases of hazardous
substances that are not RCRA hazardous wastes or hazardous
constituents, to the extent such releases are discovered in an RFA
or through other means, they will be considered the same as a
release of hazardous waste or hazardous constituents.

      Additional Criteria Applicable to RCRA Subtitle C Land
Disposal Facilities.  Land disposal facilities must meet
additional requirements imposed by SARA and this policy.  The term
"land disposal facility" means any RCRA facility at which a land
disposal unit is located, regardless of whether the land disposal
unit is the receiving unit.  Land disposal units include surface
impoundments, landfills, land treatment units and waste piles.

    As stated earlier, there must be no releases at or from
receiving units.  In addition, releases from other units at a land
disposal facility must be controlled under a corrective action
program.  The RFA will help determine whether there is a release.
In addition, land disposal facilities must have received a
comprehensive ground-water monitoring evaluation (CME) or an
operation and maintenance (O&M) inspection within the last year.

    Units at RCRA Subtitle C land disposal facilities receiving
CERCLA waste that is also RCRA hazardous waste must meet the RCRA
minimum technology requirements of RCRA 3004(o) .  Only where a
facility has been granted a waiver can a land disposal unit not
meeting the minimum technology requirements be considered
acceptable for off-site disposal of CERCLA waste that is RCRA
hazardous waste.

      Criteria Applicable to Subtitle C Treatment and Storage
Facilities.  The criterion for controlling releases from other
units does not apply to all releases at treatment and storage
facilities, as it does at land disposal facilities.  Releases from
other units at treatment and storage facilities must be evaluated
for environmental significance and their effect on the
satisfactory operation of the facility.  If determined by the
responsible Agency to be environmentally significant, releases
must be controlled by a corrective action program under an
applicable authority.  Releases from other units at treatment and
storage facilities determined not to be environmentally
significant do not affect the acceptability of the facility for
receipt of CERCLA waste.

    2.  Criteria Applicable to RCRA Permit-byRule Facilities.
This revised policy is also applicable to facilities subject to
the RCRA permit-by-rule provisions in 40 CFR 270.60. These include
ocean disposal barges or vessels, injection wells and publicly

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                              - 10 -                   9834.11

owned treatment works  (POTWs).  Permit-by-rule facilities
receiving RCRA hazardous waste must have a RCRA permit or RCRA
interim status.  RCRA  permit-by-rule facilities must also receive
an inspection for compliance with applicable RCRA permit or
interim status requirements.  In addition, these facilities  (and
other non-RCRA facilities) should be inspected by the appropriate
inspectors for other applicable laws.

    In general, except for POTWS (discussed below), these
facilities will be subject to the same requirements as RCRA
treatment and storage  facilities.  That is, there can be no
releases of hazardous  waste, hazardous constituents or hazardous
substances from receiving units.  There also can be no relevant
violations at or affecting the receiving unit, as confirmed by an
inspection conducted no more than six months prior to the receipt
of CERCLA waste.  Releases from other units determined by the
responsible Agency to  be environmentally significant must be
controlled by an enforceable agreement under the applicable
authority.

    Criteria for discharge of wastewater from CERCLA sites to
POTWs can be found in  a memorandum titled, "Discharge of
Wastewater from CERCLA Sites into POTWS," dated April 15, 1986.
That memorandum requires an evaluation during the RI/FS process
for the CERCLA site to consider such points as:

        the quantity and quality of the CERCLA wastewater and its
        compatibility  with the POTW;

        the ability of the POTW to ensure compliance with
        applicable pretreatment standards;

        the POTWs record of compliance with its NPDES permit; and

       the potential  for ground-water contamination from
        transport to or impoundment of CERCLA wastewater at the
        POTW.

Based on a consideration of these and other points listed in the
memorandum, the POTW may be deemed appropriate or inappropriate
for receipt of CERCLA  waste.

    3.  Criteria Applicable to Non-Subtitle C Facilities.  In some
instances, it may be appropriate to use a non-Subtitle C facility
for off-site transfer: for example,  PCB disposal is regulated
under the Toxic Substances Control Act (TSCA); nonhazardous waste
disposal is regulated  under Subtitle D of RCRA and applicable
State laws; and disposal of radionuclides is regulated under the
Atomic Energy Act.  At such facilities, all releases are treated
in the same manner as  releases from other units at Subtitle C
treatment and storage  facilities.   That is, the responsible Agency
should Make a determination as to whether the release is
environmentally significant and, if so, the release should be
                   -RETYPED  FROM  THE  ORIGINAL-

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                              - 11 -                   9834.11

controlled by a corrective action program under the applicable
Federal or State authority.

    Requirements for the disposal of PCBs are established in 40
CFR 761.60. Generally, these regulations require that whenever
disposal of PCBs is undertaken, they must be incinerated, unless
the concentrations are less than 50 ppm.  If the concentrations
are between 50 and 500 ppm, the rule provides for certain
exceptions that provide alternatives to the incineration
requirements.  The principal alternative is disposal in a
TSCA-permitted landfill for PCBS.  If a TSCA landfill is the
receiving unit for PCBS, then that facility is subject to the same
criteria applicable if a RCRA land disposal unit is the receiving
unit; i.e., no relevant violations, no releases at the receiving
unit and controlled releases at other units.  PCBs at levels less
than 50 ppm may be transported to acceptable Subtitle D facilities
as discussed previously.


V.  IMPLEMENTATION

A.  Determining Acceptability

    Acceptability determinations under the off-site policy will be
made by EPA or by States authorized for corrective action under
3004(u) of RCRA.  Where States have such authority, the State may
make acceptability determinations for facilities in the State in
consultation with EPA.  Regardless of a State's authorization
status, the Region and States should establish, in the Superfund
Memorandum of Agreement, mechanisms to ensure timely exchange of
information, notification of facilities and coordination of
activities related to the acceptability of facilities and
potential selection of facilities for off-site transfer.  The
Regions and States also need to establish or enhance coordination
mechanisms with their respective RCRA program staffs in order to
ensure timely receipt of information on inspections, violations
and releases.  These agreements can be embodied in state
authorization Memoranda of Agreement, State grant agreements, or
State-EPA enforcement agreements.

    The responsible government official in the Region or State in
which a hazardous waste facility is located will determine whether
the facility has relevant violations or releases which may
preclude its use for off-site transfer of CERCLA wastes.  Each
Region and State should have a designated off-site coordinator
responsible for ensuring effective communication between CERCLA
response program staff and RCRA enforcement staff within the
Regional Offices, with States, and with other Regions and States.

    The off-site coordinator should maintain a file of all
information on the compliance and release status of each
commercial facility in the Region or State.  This information
should be updated based on the results of State- or EPA-conducted
compliance inspections or other information on these facilities.

                   -RETYPED FROM THE ORIGINAL-

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                              - 12 -                   9834.11

    CERCLA response program staff should identify potential
off-site facilities early in the removal action or the remedial
design process and check with the appropriate Regional and/or
State off-site coordinator(s) regarding the acceptability status
of the facilities.  If one or more facilities is identified that
has not received an inspection within the last six months, the
Regional off-site coordinator(s) should arrange to have such
inspection(s) conducted within a timeframe dictated by the project
schedule.  The CERCLA REM/FIT contractor may conduct the
inspection under the direction of the Deputy Project Officer.  If
contractor personnel are used,  the Region should ensure that such
personnel are adequately trained to conduct the inspections.

    Responsible Agencies should base their acceptability
determinations on an evaluation of a facility's compliance status
and, as appropriate, whether the facility has releases or other
environmental conditions that affect the satisfactory operation of
the facility.  States not authorized for HSWA corrective action
may assist EPA in making the acceptability determination by
determining a facility's compliance status (based on a State
inspection)  and providing this information to EPA.  Regions and
States should use the following types of information to make
acceptability determinations:

       State- or EPA-conducted inspections.   EPA will continue to
        assign high priority to conducting inspections at
        commercial land disposal, treatment and storage
       .facilities.  Facilities designated to receive CERCLA waste
        must be inspected within six months of the planned receipt
        of the waste.  In addition, land disposal facilities must
        have received a comprehensive ground-water monitoring
        inspection (CME) or an operation and maintenance  (O&M)
        inspection within the last year, in accordance with the
        timeframes specified in the RCRA Implementation Plan
        (RIP).

       RCRA Facility Assessments (RFAs).  To be eligible under
        this policy, a RCRA Subtitle C facility must have had an
        RFA or equivalent facility-wide investigation.  The RFA or
        its equivalent must be designed to identify existing and
        potential releases of hazardous waste and hazardous
        constituents from solid waste management units at the
        facility.

       Other data sources.  Other documents such as the facility's
        permit application,  permit, Ground Water Task Force
        report, ground-water monitoring data or ground-water
        assessment report can contain information on violations,
        releases or other conditions.  Relevant information from
        these documents should also be used to determine a
        facility's acceptability to receive waste under the
        off-site policy.
                   -RETYPED  FROM THE ORIGINAL-

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                              - 13 -                   9834.11

B.  Notice Procedures

    EPA expects that Regions and States will take timely and
appropriate enforcement action on determining that a violation has
occurred.  Where a responsible Agency performs an inspection that
identifies a relevant violation at a commercial facility likely to
accept CERCLA wastes, within five working days of the violation
determination, the responsible Agency must provide written notice
to the facility of the violation and the effects of applying this
policy.  States not authorized for HSWA corrective action should
inform EPA of the violation so that EPA can notify the facility of
the effect of the violation under this policy. (See RCRA
Enforcement Response Policy for a discussion of appropriate
enforcement responses and timeframes for Class I violations.)

    When the responsible Agency determines that a relevant release
has occurred, or that relevant conditions exist, the responsible
Agency must notify the facility in writing within five working
days of that determination.  The notice must also state the effect
of the determination under this policy.  A copy of any notice must
also be provided to the non-issuing Region or State in which the
facility is located.  States not authorized for HSWA corrective
action should provide EPA with information on releases so that EPA
can determine whether a relevant release has occurred.

    Private parties conducting a response action subject to this
policy will need to obtain information on the acceptability of
commercial facilities.  The responsible Agency must respond with
respect to both pre-SARA and post-SARA wastes.  In addition, the
responsible Agency should indicate whether the facility is
currently undergoing a review of acceptability and the date the
review is expected to be completed.  No enforcement sensitive or
predecisional information should be released.

     A facility may submit a bid for receipt of CERCLA waste
during a period of unacceptability.  However, a facility must be
acceptable in order to be awarded a contract for receipt of CERCLA
waste.

     Scope and Contents of the Notice.  The responsible Agency
must send the notice to the facility owner/operator by certified
and first-class mail, return receipt requested.  The certified
notice, if not acknowledged by the receipt return card, will be
considered to have been received by the addressee if properly sent
by first-class mail to the last address known to the responsible
Agency.  The notice should contain the following:

          A finding that the facility may have conditions that
          render it unacceptable for receipt of off-site waste,
          based upon available information from an RFA, an
          inspection, or other data sources;

         A description of the specific acts, omissions or
          conditions that form the basis of the findings;

                    -RETYPED FROM THE ORIGINAL-

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                               -  14 -                   9834.11

          Notice that the  facility owner/operator has the
          opportunity to request an informal conference with the
          responsible government official to discuss the basis for
          the  facility's unacceptability determination under this
          revised policy,  provided that such a request is made
          within 10 calendar days from the date of the notice.
          The  owner/operator may submit written comments within 30
          calendar days from the date of the notice in lieu of
          holding the conference.

          Notice that failure  to request an informal meeting or
          submit written comments will result in no further
          consideration of the determination by the responsible
          Agency during the 60 calendar days after issuance of the
          notice.  The responsible Agency will cease any transport
          of CERCLA waste  to the facility on the 60th calendar day
          after issuance of the  notice.

          Notice that the  owner/operator may request, within 10
          calendar days of hearing from the responsible government
          official after the informal conference or the submittal
          of written comments, a reconsideration of the
          determination by the Regional Administrator or
          appropriate State official.  The Regional Administrator
          or State official may  agree to review the determination
          at his or her discretion; and

          Notice that such a review by the Regional Administrator
          or appropriate State official, if agreed to, will be
          conducted within 60  calendar days of the initial notice,
          if possible, but that  the review will not stay the
          determination.

     The facility may continue to receive CERCLA waste for 60
calendar days after issuance of  the initial notice.  As indicated
above, facility owners or  operators may request an informal
conference with the responsible  government official within 10
calendar days from the date of issuance of the notice, to discuss
the basis for a violation  or release determination and its
relevance to the facility's acceptability to receive CERCLA
wastes.  Any such meeting  should take place within 30 calendar
days of the date the initial notice is issued.   If unacceptability
is based on a State inspection or enforcement action,  a
representative of the State should attend the meeting.  If the
State does not attend, EPA will notify the State of the outcome of
the meeting.  The owner/operator may submit written comments
within 30 calendar days from the date of the notice in lieu of
holding the conference.   If the responsible Agency does not find
that the information submitted at the informal  conference or in
comments is sufficient to support a finding of acceptability to
receive CERCLA wastes, it should so inform the facility orally or
in writing.
                   -RETYPED  FROM THE ORIGINAL-

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                               -  15  -                   9834.11

     Within  10  calendar days of  hearing  from the responsible
government official  after  the  informal conference or the submittal
of written comments,  the facility owner  or operator may request a
reconsideration of the determination by  the Regional Administrator
or appropriate  State official.   The Regional Administrator or
appropriate  State official may use  his or her discretion in
deciding whether to  conduct a  review of  the determination.  Such a
review, if granted,  should be  conducted  within the 60 day period
 (originating with the notice)  to the extent possible.  The review
will not stay the determination.

     The RPM, OSC or equivalent  site manager must stop transfer of
waste to a facility  on the 60th  calendar day after issuance of a
notice.  The facility then remains  unacceptable until such time as
the responsible Agency notifies  the owner or operator otherwise.
The off-site coordinator and the OSC/RPM should maintain close
coordination throughout the 60-day  period.

     In limited cases, the responsible Agency may use its
discretion to extend the 60 day  period if it requires more time to
review a submission.  The  facility  should be notified of any
extension, and  it remains  acceptable during any extension.

     The responsible Agency may  also use its discretion to
determine that  a facility's unacceptability is immediately
effective upon  receipt of  a notice  to that effect.  This may occur
in situations such as, but not limited to, emergencies (e.g., fire
or explosion) or egregious violations (e.g., criminal violations
or chronic recalcitrance)  or other  situations that render the
facility incapable of safely handling CERCLA waste.

     Implementation  of this notice  provision does not relieve the
Regions or States from taking appropriate enforcement action under
RCRA or CERCLA.

C.   Procedures  for  Facilities with Outstanding Unacceptability
     Determinations

     Under the  original May 1985 off-site policy, -facilities
determined to be unacceptable to receive CERCLA wastes were
provided with written notice and were generally afforded informal
opportunities to comment on the determination (the latter step was
not required by the policy).  Although the Agency believes that
these steps represented adequate procedural safeguards for
facilities seeking to receive CERCLA wastes, EPA has decided to
provide an additional opportunity for review, in light of this
revised policy,  for  facilities with unacceptability determinations
already in place on the effective date of the revised policy.

     Any such facility that wishes to meet with the responsible
Agency to discuss the basis for a violation or release
determination and its relevance to the facility's ability to
receive CERCLA wastes, may request an informal conference with or
submit written comments to the responsible Agency at any point up

                   -RETYPED FROM THE ORIGINAL-

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                              - 16 -                   9834.11

to the 60th day after the publication of the proposed rule on the
off-site policy in the Federal Register.  Such a meeting should
take place within 30 calendar days of the request.  If the
responsible government Agency does not find the information
presented to be sufficient to support a finding of acceptability
to receive CERCLA wastes, then it should inform the facility
orally or in writing that the unacceptability determination will
continue to be in force.  The facility may, within 10 calendar
days of hearing from the responsible government official after the
informal conference or submittal of written comments, petition the
EPA Regional Administrator or appropriate State official for
reconsideration.  The Regional Administrator or State official may
use his or her discretion in deciding whether to grant
reconsideration.

     These procedures for review of unacceptability determinations
that were already in place on the effective date of this revised
policy will not act to stay the effect of the underlying
unacceptability determinations during the period of review.

D.   Re-evaluating Unacceptability

     An unacceptable facility can be reconsidered for management
of CERCLA wastes whenever the responsible-Agency finds that the
facility meets the criteria described in the "Acceptability
Criteria" section of this policy.

     For the purposes of this policy, releases will be considered .
controlled upon issuance of an order or permit that initiates and
requires completion of one or more of the following:  a
facility-wide RCRA Facility Investigation (RFI); a Corrective
Measures Study (CMS); or Corrective Measures Implementation (CMI).
The facility must comply with the permit or order to remain
acceptable to receive CERCLA waste.  At the completion of any such
phase of the corrective action process, the responsible Agency
should again review the facility for acceptability under the
off-site policy using the criteria listed in this document, and as
necessary and appropriate, make new acceptability determinations,
and issue additional orders or modify permit conditions to control
identified releases.  Releases that require a determination of
environmental significance will be considered controlled upon
issuance of an order or permit to conduct an RFI, CMS or CMI, or
upon completion of an RFI which concludes that the release is not
environmentally significant.  Again, the facility must comply with
the permit or order to remain acceptable to receive CERCLA waste.

     If the facility is determined to be unacceptable as a result
of relevant violations at or affecting the receiving unit, the
State (if it made the initial determination) or EPA must determine
that the receiving unit is in full physical compliance with all
applicable requirements.  Where a State not authorized for HSWA
corrective action makes this determination, it should notify EPA
immediately of the facility's return to compliance, so that the
                   -RETYPED  FROM THE ORIGINAL-

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                              - 17 -                   9834.11

Agency can expeditiously inform the facility that it is once again
acceptable to receive CERCLA wastes.

     The responsible Agency will notify the facility of its return
to acceptability by certified and first-class mail,  return receipt
requested.

E.   Implementation Procedures

     All remedial decision documents must discuss compliance with
this policy for alternatives involving off-site management of
CERCLA wastes.  Decision documents for removal actions also should
include such a discussion.

     Provisions requiring compliance with this policy should be
included in all contracts for response action, Cooperative
Agreements with States undertaking Superfund response actions, and
enforcement agreements.  For ongoing projects, these provisions
will be implemented as follows, taking into consideration the
differences in applicable requirements for pre- and post-SARA
decision documents:

        RI/FS:  The Regions shall immediately notify Agency
        contractors and States that alternatives for off-site
        management of wastes must be evaluated against the
        provisions of this policy.

       Remedial Design:  The Regions shall immediately notify
        Agency contractors, the States, and the U.S. Army Corps of
        Engineers that all remedies that include off-site disposal
        of CERCLA waste must comply with the provisions of this
        policy.

       Remedial Action;  The Regions shall immediately assess the
        status of compliance, releases and other environmental
        conditions at facilities receiving CERCLA waste from
        ongoing projects.  If a facility is found not to be
        acceptable, the responsible Agency should notify the
        facility of its unacceptability.

       Enforcement;  Cleanups by responsible parties under
        enforcement actions currently under negotiation and all
        future actions must comply with this policy.  Existing
        agreements need not be amended.  However, EPA reserves the
        right to apply these procedures to existing agreements, to
        the extent it is consistent with the release and reopener
        clauses in the settlement agreement.

    If the response action is proceeding under a Federal lead, the
Regions should work with the Corps of Engineers or EPA Contracts
Officer to negotiate a contracts modification to an existing
contract, if necessary.  If the response action is proceeding
under a State lead, the Regions should amend the Cooperative
Agreement.

                    -RETYPED FROM THE ORIGINAL-

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MEMORANDUM                                        Aug. 29, 1988

SUBJECT:  Off-site Policy Implementation Issues

FROM:     Bruce M. Diamond, Director
          Office of Waste Programs Enforcement

TO:       Waste Management Division Directors
          Regions I-X


     This memorandum addresses two situations that may arise when
implementing the revised CERCLA off-site policy:  deciding
whether a relevant violation is egregious under the policy such
that it makes the unit immediately unacceptable for CERCLA waste;
and determining whether a unit can return to acceptability when a
violation cannot be physically "remedied."  In addition, I am
including recently developed guidelines for use by the Regional
Off-site Contacts in responding to inquiries on the off-site
acceptability status of facilities.

     The November 13, 1987 Off-site Policy provides that a
facility generally may continue to receive wastes for sixty (60)
days from the time the facility is notified of an unacceptability
determination.  However, in limited cases, the Agency responsible
for making the off-site determination

     "...may use its discretion to determine that a
     facility's unacceptability is immediately
     effective...This may occur in situations such as, but
     not limited to, emergencies (e.g., fire or explosion)
     or egregious violations (e.g., criminal violations or
     chronic recalcitrance) or other situations that render
     the facility incapable of safely handling CERCLA
     waste."  (November 13, 1987 "Revised Procedures for
     Planning and Implementing Off-site Response Actions,"
     OSWER Directive No. 9834.11, at p. 16.)

Examples of egregious violations include, but are not limited to,
criminal violations (where a criminal indictment has been
issued), repeated violations of statutory or regulatory
requirements indicating that a facility is unable to safely
manage wastes, refusal to comply with outstanding orders or
decrees calling for compliance or corrective action, and
violations which result in an immediate threat to human health or
the environment.  A Class I violation of RCRA in and of itself
generally will not trigger immediate unacceptability unless it
meets the criteria for egregiousness or otherwise renders the
unit incapable of safely managing wastes.

     The off-site policy requires the receiving unit, once it has
been determined to be unacceptable due to a relevant violation,
to return to full physical compliance in order to return to
acceptability.  Occasionally, it will not be possible to
physically "un-do" the results of a violation.  For example,  a
                   -RETYPED FROM THE ORIGINAL-

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facility that takes waste for which it is not permitted and
treats it in a surface impoundment, incinerates it, or disposes
of it in a landfill in such a way that its removal would cause a
greater danger than leaving it in place,  will not be able to
retrieve the waste.  We interpret the off-site policy to mean
that such units may be determined to be in full physical
compliance and hence acceptable under the off-site policy if the
following conditions are met:

        the violation does not render the unit unsafe or
        incapable of properly managing wastes,
        the violation does not pose a threat to human health or
        the environment, and
       the facility has completed all actions that EPA
        determines are necessary to rectify the violation and
        prevent it from recurring.

In most cases this will mean that: 1) all legal proceedings,
punitive actions and other obligations related to that violation
are resolved, and 2) the facility has implemented a system
approved by the responsible Agency that will assure the violation
does not recur.  We will be asking for comment on this issue in
the proposed off-site rule.

     Finally, I am attaching some guidelines for the Regional
RCRA Off-site Contacts  (RROCs) to use when responding to
inquiries about the acceptability status of commercial facilities
in their Region.  This guidance is important to ensure consistent
application of the off-site policy, and to provide clear and
unambiguous responses.  If you have any questions or comments on
these guidelines or any part of this memorandum, please contact
Steve Heare, Acting Director, RCRA  Enforcement Division (FTS
382-4808).

cc:  RCRA Branch Chiefs, Regions I-X :
     Regional RCRA Off-site Contacts, Regions I-X
     Office of Regional Counsel, Regions I-X

Attachment
                   -RETYPED FROM THE ORIGINAL-

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   GUIDELINES FOR REGIONAL RCRA OFF-SITE CONTACTS  (RROCs)
IN RESPONDING TO INQUIRIES RE:   OFF-SITE ACCEPTABILITY STATUS

 Wait for the formal notice of unacceptability to be signed and
 sent before declaring that a facility has been issued such a
 notice.

 Specify if the notice (/finding)  of unacceptability is for
 pre-SARA wastes, post-SARA wastes,  or both.

 Specify if a determination of unacceptability is effective on
 the date of the inquiry, or state the date of expected
 effectiveness (60th day).

 Clearly state the unit or units to which the
 notice/determination applies (e.g., although one cell at a
 landfill is unacceptable, other units at the facility may
 remain acceptable to receive CERCLA wastes).

 Keep a list of inquiries concerning a facility's acceptability
 status.  In the event that the facility's status changes from
 acceptable to unacceptable or vice-versa,  past inquirers,
 especially if they are State or Federal program employees,
 should be notified.
                 -RETYPED FROM THE ORIGINAL-

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Section 10
Permitting

-------
                                                  ra
                                                  o
PERMITTING

-------
          Section 10 - Permitting - 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
Guidance on Developing Compliance Orders Under Section 3008 of RCRA; Failure to
Submit and Submittal of Incomplete Part B Permit Applications
9936.1

09/09/83

OECM

Administrative Orders/Administrative Authorities
Interim Status

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               Section 10 - Permitting - Cross  References
            (Documents that are referenced under Permitting but appear in the
            Primary Section indicated)


TITLE            Applicability of Interim Status Standards, 40 CFR Part 265, to Small Quantity Generators
                 Who Have Notified and Filed a Part A Permit Application


DIRECTIVE  NO.

SOURCE         Office of Enforcement Counsel

PRIMARY        Interim Status
SECTION
TITLE            Enforcement Actions Under RCRA and CERCLA at Federal Facilities



DIRECTIVE  NO.  9992.0

SOURCE         OSWER

PRIMARY        Federal Facilities
SECTION
TITLE            Enforcement of Applicable RCRA Regulations at Facilities With Pending Delisting Petitions



DIRECTIVE  NO.

SOURCE         OWPE/OSW

PRIMARY        Financial Responsibility
SECTION
TITLE            Enforcement of Authorized State Laws Pursuant to 40 CFR Section 271.19 - Formal
                  Comments on State Requirements Applicable to Facility Permits


DIRECTIVE  NO.   9936.3

SOURCE         OWPE

PRIMARY         Federal/State Relations
SECTION

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              Section 10 -  Permitting - Cross References
            (Documents that are referenced under Permitting but appear in the
            Primary Section indicated)
            ^^^^^^^^^^^^^^^^^^^^^
TITLE            Enforcing Ground Water Monitoring Requirements in RCRA Part B Permit Applications

DIRECTIVE  NO.   9504.01-84
SOURCE         OECM/OSWER
PRIMARY         Ground Water
SECTION
TITLE            Guidance Concerning Corrective Action for Prior and Continuing Releases, Underground
                 Injection Control Program Guidance #45 (Interim)

DIRECTIVE NO.
SOURCE         ODW
PRIMARY         Corrective Action
SECTION
TITLE            Interim Status Under Section 3005(e) of RCRA

DIRECTIVE NO.   9935.0
SOURCE         OSW
PRIMARY         \rtterim Status
SECTION
TITLE            RCRA Corrective Action Plan

DIRECTIVE NO.   9902.3
SOURCE         OWPE/OSW
PRIMARY         Corrective Action
SECTION

-------
               Section  10 - Permitting - Cross References
            (Documents that are referenced under Permitting 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 Loss of Interim Status Enforcement Strategy



DIRECTIVE  NO.  9930.0-1

SOURCE         OWPE

PRIMARY         Interim Status
SECTION
TITLE            RCRA Regulatory Status of Contaminated Ground Water



DIRECTIVE  NO.  9481.00-6

SOURCE         OSW

PRIMARY         Ground Water
SECTION
TITLE            RCRA Section 3005(e): Continued Operation of Hazardous Waste Facilities by Owners or
                 Operators Who Have Failed to Achieve Interim Status


DIRECTIVE  NO.  9935.1

SOURCE         OWPE

PRIMARY         interim Status
SECTION

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              Section  10 - Permitting  - Cross References
            (Documents that are referenced under Permitting but appear in the
            Primary Section indicated)
TITLE
Use of Section 3008(h) Orders or Post-Closure Permits at Closing Facilities
DIRECTIVE NO.  9502.00-7

SOURCE        OSWER

PRIMARY        Corrective Action
SECTION

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

              '          WASHINGTON D C 20460
                           SEP   9 1983
MEMORANDUM
SUBJECT:  Guidance on Developing Compliance Orders Under Section
          3008 of the Resource Conservation and Recovery Act;
          Failure to Submit and Submittal of Incomplete Part B
          Jrmit,Ap|>li cat ions
FROM:     Lee M. Thomas
          Assistant Administrator
          Courtney M. Price  l^_
          Special Counsel forThforcemertt

TO:       Regional Administrators, Regions I-X
          Regional Counsels, Regions I-X
          Air and Hazardous Materials Division
            Directors, Regions I-X


BACKGROUND

     Six months after the promulgation of regulations identifying
and listing a waste as hazardous (40 CFR Part 261), the treatment,
storage, or disposal of that waste by any person who has not
received a RCRA permit is prohibited (40 CFR S 270.Kb)).

     However, an owner or operator of an existing facility
(a facility which was in operation or for which construction was
commenced on or before November 19, 1980 (40 CFR $270.2)) is
allowed to continue to conduct hazardous waste management (HWM)
activities without having received a permit provided that he:
1) submitted Part A of the permit application within six months of
promulgation of the regulations in Part 261, and 2) sent EPA
notification of his HWM activities within 90 days of promulgation
of the regulations in Part 261.  An owner or operator who complied
with these requirements qualified for "interim status."  The
owner or operator of a facility with interim status is treated
as if he has been issued a permit until EPA makes a final decision
concerning issuance of the permit.

     An owner or operator must submit Part B of the permit appli-
cation when required to do so by the Regional Administrator (R.A.).
The R.A. is required under 40 CFR $270.Kb) to allow an applicant
six months to submit a Part B application; he may allow additional
time for submission at his discretion*  Failure to furnish a
Part B application by the date specified by the R.A. or failure to
furnish in full the information required in Part B is grounds

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                               -2-


 for  denial  of  a  RCRA permit  (40 CFR  124.3(d)) and termination
 of interim  status  (40 CFR S270.10(e)(5)).

     Last year,  the Regions  began to "call-in" (require submission
 of)  Part B  of  the permit applications  from existing hazardous
 waste management facilities.  Some of  the Part B applications
 have not been  submitted by the deadline  specified in the call-in.
 Others, though submitted on  time, did  not contain all of the
 information required under 40 CFR 55270.14-21.  This memorandum
 sets forth  the procedures to be followed when an applicant fails
 to submit a timely Part B application  or submits a timely but
 incomplete  Part  B applicatiojp.

 I.   FAILURE TO SUBMIT A TIMELY OR COMPLETE PART B APPLICATION BY
    THE DATE SPECIFIED WHEN  THE PART B APPLICATION WAS CALLED-IN

     When an owner or operator 1) has  not submitted a Part B
 application or a closure and post-closure plan V by the date
 specified when the application was called-in, or 2) has submitted
 a timely but incomplete Part B application, the R.A. should take
 the following  actions:

     1) Issue  a Notice of Deficiency  (40  CFR 5124.3(c))

        a)  detailing the deficiencies  in  the Part B application,
            and

        b).  requiring submission of a complete Part B application
            by  a  specific date, (the  date  should generally be
            within 30 days from the date  of issuance of the notice
            of  deficiency), AND

     2) Issue  a Warning Letter

        a)  stating that failure to submit a complete Part B
            application is a violation  of  40 CFR $270.10(a),
V 40 CFR $265.112(c) requires an owner or operator of any HWM
~"  facility to submit a closure plan 180 days before he expects
   to begin closure but in no event later than 15 days after
   1) termination of interim status or 2) issuance of a judicial
   decree or RCRA 53008 compliance order to cease handling hazardous
   waste.  40 CFR 5265.118(c) requires owners and operators of hazardous
   waste disposal facilities to submit a post-closure plan within the
   same timeframe.  An owner or operator may also submit a closure plan
   (and, where required, a post-closure plan) with a statement
   of his intent to cease handling hazardous waste in lieu of a
   Part B application.  If- an owner or operator submits the plan(s)
   with such a statement, the Agency will not take enforcement action
   against the owner or operator for failing to submit a Part B
   application, but rather will proceed to review the closure or
   post-closure plan under Part 265.

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                              -3-


         b)  requiring  submission of a complete Part B application
            by  a  date  generally not to exceed 30 days after date
            of  issuance of  the warning letter, and

         c)  stating that failure to submit a complete Part B
            application by  the date specified in the warning
            letter may result in i) the assessment of a civil
            penalty against the applicant pursuant to RCRA $3008
            and ii) initiation of procedures to terminate the
            facility's interim status, and

         d)  stating that a  closure* plan (and post-closure plan,
            where required) and a statement of the owner or
            operator's intent to cease handling hazardous waste
            may be submitted in lieu of a complete Part B
            application.,

     If  the owner or  operator submits a complete Part B applica-
tion by  the date specified.in the warning letter, the R.A. should
begin to process the  permit application.

     If  the owner or  operator submits closure and post-closure
plans along with a statement of his intent to cease handling
hazardous wastes, the R.A. should review the plan(s) and require
closure  in  compliance with 40 CFR Part 265.

II. FAILURE TO SUBMIT A COMPLETE PART B APPLICATION BY THE DATE
    SPECIFIED IN THE WARNING LETTER

    A. FAILURE TO SUBMIT THE PART B APPLICATION BY THE DATE
       SPECIFIED IN THE WARNING LETTER
               *

     If  the owner or  operator does not submit a Part B application
(or closure and^post-closure plans with a statement of his intent
to cease handling" hazardous waste by the date specified in the
warning  letter), the R.A.  should:

     1)  Issue a Compliance Order under RCRA $3008(a)(1):

         a).assessing a $15,000 penalty for failure to submit
            information required by 40 CFR $270.10(a),

         b) requiring submission of a complete Part B application
            by a date generally not to exceed 30 days from the
            date of issuance of the compliance order, and

         c)  stating that failure to submit a complete Part B applica-
            tion by the date specified in the compliance order may
            result in  the initiation of procedures to terminate
            interim status.

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                               -4-


     If the owner or operator submits a complete Part B application
by the date specified in the compliance order, the R.A. should
begin to process the permit application.

     If the owner or operator does not submit a complete Part B
application by the date specified in the compliance order, the
R.A. should:

     Initiate procedures to terminate interim status by issuing
     a Notice of Intent to Deny Permit under 40 CFR $124.6(b).

Issuance of a Notice of Intent to Grant or Deny Permit is the
appropriate mechanism for initiating procedures to terminate
interim status under the RCRA regulations.  Under 40 CFR $124.3(d),
a permit may be denied for failure to correct deficiencies in
the permit application.

    B.  SUBMISSION OF A PART B APPLICATION WHICH IS MISSING
        MAJOR ITEMS OF REQUIRED INFORMATION

     Ifr by the date specified in the warning letter, a facility's
Part B application is still missing major items of information
required under 40 CFR Part 270.14-21 */ or the information provided
to meet these requirements is insufficient, the R.A. should:

     1) Issue a Compliance Order under RCRA S3008(a)(l):

        a) assessing a penalty in an amount equal to

           i)  $1000 for each major item of information which is -
               missing or clearly insufficient, plus

          ii)  $500 for each non-major item of information which
               is missing or insufficient; and

        b) requiring submission of a complete Part B application
           by a date generally not to exceed 30 days from the
           date of issuance of the compliance order, and

        c) stating that failure to submit a complete Part B
           application by the date specified in the compliance
           order may result in the initiation of procedures to
           terminate interim status.

     If the owner or operator submits a complete Part B application
by the date specified in the compliance order, the R.A. should
begin to process the permit application.

     If the owner or operator does not submit a complete
Part B application by the date specified in the compliance
order, the R.A. should:
    A list of "major items" is contained in the appendix to this
   policy*

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                               -5-


     Initiate procedures to terminate interim status by issuing
     a Notice of Intent to Deny Permit under 40 CFR 124.6(b).


  C. INCOMPLETE PART B APPLICATIONS WHICH CONTAIN ALL MAJOR ITEMS
     OF REQUIRED INFORMATION

     When an owner or operator submits an incomplete Part B
application by the date specified in the warning letter which
contains all major items of information required under
40 CFR Part 270.14-21, the RA should:

        Issue a Compliance Order under 53008 of RCRA:

        a) assessing a penalty in an amount equal to $500 per
           missing item of information for failure to submit
           information required under 40 CFR $270.10(a), and

        b) requiring submission of a complete Part B application
           by a date generally not to exceed 30 days from date
           of issuance of the compliance order, and

        c) stating that failure to submit a complete Part B
           application by the date specified in compliance order
           may result in the initiation of procedures to terminate
           interim status.

     If the owner or operator submits a complete Part B application.
by the date specified in the compliance .order, the R.A. should
begin to process the application.

     If the owner or operator does not submit a complete Part B
application by the date specified in the compliance order, the
RA should:

     Initiate procedures to terminate interim status by issuing
     a Notice of Intent to Deny Permit under 40 CFR $124.6(b).

III. INITIAL PENALTY ASSESSMENT AND PENALTY REDUCTION DURING
     NEGOTIATIONS

     The penalties set forth in this policy are based on the
1) the type of information which is missing or insufficient (a
higher penalty is proposed for information designated as "major"
than for other missing or insufficient information), and 2) the
number of items of information which are missing or insufficient.
During initial penalty assessment under this policy, the type
and amount of missing or insufficient information in the Part B
application are the only factors which should be considered in
determining the amount of the penalty.

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                               -6-


     The following factors should be considered during settlement
negotiations in deciding whether to lower the penalty which was
initially assessed: 1) good faith efforts by the owner or operator
to develop the information/ and 2) history of non-compliance
(when this information is available).  No penalty assessed under
this policy should be reduced by more than 40% during settlement
negotiations.


               PURPOSES AND USE OF THIS MEMORANDUM

     The policy and procedures set forth in this memorandum and
internal office procedures adopted pursuant to this memorandum  are
intended solely for the guidance of attorneys and other employees
of the United States Environmental Protection Agency.  They
are not intended to nor do they constitute rule-making 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 any action which is at variance
with the policy or procedures contained in this memorandum or
with internal office procedures that may be adopted pursuant to
this memorandum.

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                             -7-
                           APPENDIX


Major items of information include the following (where required
for the type of facility being permitted):

  1) waste analysis plan,
  2) inspection plan,
  3) contingency plan,
  4) location information,
  5) closure plan,
  6) post-closure plan,
  7) documentation of financial responsibility mechanisms,
  8) cost estimates for closure and post-closure,
  9) principal design plans for the facility (40 CFR $270.15(a),
     S270.16(a-e), S270.17(b), S270.18(c), and 270.2Kb)),
 10) results of trial burn, plan for trial burn, or information
     indicating that the facility will meet the 40  CFR 5264.343
     performance standards,
 11) land treatment demonstration,
 12) description of land treatment program,
 13) summary of any groundwater monitoring data collected during
     the interim status period,
 14) description of the groundwater monitoring system to be
     installed at the facility (40 CFR 270.14(c)(5)),  and
 15) hydrogeologic information (40 CFR $270.14(c)(2)-(3)).

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Section 11
Referrals

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REFERRALS
                                              O
                                              O
                                              z

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       Section  11 - Referrals -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
TOSMS^
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE

 OTHER
 RELEVANT
 SECTIONS
SMS^S
 TITLE
 DIRECTIVE  NO.
 DATE EFFECTIVE/
 ISSUED
 SOURCE

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

 OTHER
 RELEVANT
 SECTIONS
 Implementation of Direct Referrals for Civil Cases Beginning December 1,1983
 9891.5
 11/28/83
 OECM

 Civil/Criminal Actions
 Settlement
mmmmmm
 Expanded Civil Judicial Referral Procedures
 9891.1
 08/28/86
 OECM

 Civil/Criminal Actions
 Expansion of Direct Referral of Cases to the Department of Justice
 9891.5A
 01/14/88
 OECM

 Civil/Criminal Actions
 Use of Stipulated Penalties in EPA Settlement Agreements

 01/24/90


 Settlement

               f. %      % "" ^\ s"^

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   Section 11  - Referrals  -  Cross References
(Documents that are referenced under Referrals but appear in the
Primary Section indicated)
TITLE
                 Elevation Process for Achieving Federal Facility Compliance Under RCRA
 DIRECTIVE  NO.  9992.013

 SOURCE        OSWER

 PRIMARY        Federal Facilities
 SECTION
TITLE
                 Enforcement Response Policy
DIRECTIVE  NO.  9900.0-1 A

SOURCE        OWPE

                 Violation Classification
PRIMARY
SECTION
TITLE
                 Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees
DIRECTIVE  NO.

SOURCE         OECM

                 Civil/Criminal Actions
PRIMARY
SECTION
TITLE
                 Policy on Enforcing Information Requests in Hazardous Waste Cases
DIRECTIVE  NO.  9834.4

SOURCE         OECM

PRIMARY         Civil/Criminal Actions
SECTION

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                                                       9891.5
MEMORANDUM                                        Nov. 28, 1983

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

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

TO:       Regional Administrators, Regions I-X
          Regional Counsels, Regions I-X
          Associate Enforcement Counsels
          OECM Office Directors

I.  BACKGROUND

     On September 29, 1983, the Environmental Protection Agency
(EPA) and the Land and Natural Resources Division of the
Department of Justice (DOJ) entered into an agreement which,
beginning on December 1, 1983, allows certain categories of cases
to be referred directly to DOJ from EPA Regional offices without
my prior concurrence.  A copy of that agreement is attached to
this memorandum.

     This memorandum provides guidance to EPA Headquarters and
Regional personnel regarding procedures to follow in implementing
this direct referral agreement.  Additional guidance will be
issued as required.

II.  PROCEDURES FOR CASES SUBJECT TO DIRECT REFERRAL

     The attached agreement lists those categories of cases which
can be referred directly by the Regional Administrator to DOJ.
All other cases must continue to be reviewed by Headquarters OECM
and will be referred by me to DOJ.  Cases which contain counts
which could be directly referred and counts which require
Headquarters concurrence should be referred to EPA. Headquarters.
If you are uncertain whether a particular case may be directly
referred, you should contact the appropriate Associate Enforcement
Counsel for guidance.
                   -RETYPED  FROM THE ORIGINAL-

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                               -  2  -                    9891.5
     Many of the procedures for direct referral cases are
adequately explained In the September 29th agreement.  However,
there are some points I want to emphasize.

     Referral packages should be addressed to Mr. F. Henry
Habicht, II, Assistant Attorney General, Land and Natural
Resources Division, U.S. Department of Justice, Washington, D.C.
20530, Attention: Stephen D. Ramsey.  The time limitations set
forth in the agreement for review and initial disposition of the
package will commence upon receipt of the package in the Land and
Natural Resources Division, and not at the DOJ mailroom.  Delivery
of referral packages to the Land and Natural Resources Division
will be expedited by use of express mail, which is not commingled
with regular mail in DOJ's mailroom.

     The contents of a referral package  (either direct to DOJ or
to EPA Headquarters) should contain three primary divisions: (1) a
cover letter; (2) the litigation report;  (3) the documentary file
supporting the litigation report.

     The cover letter should contain a summary of the following
elements:

     (a)  identification of the proposed defendant(s);

     (b)  the statutes and regulations which are the basis for the
          proposed action against the defendant(s);

     (c)  a brief statement of the facts upon which the proposed
          action is based;

     (d)  proposed relief to be sought against the defendant(s);

     (e)  significant or precedential legal or factual issues;

     (f)  contacts with the defendant(s), including any previous
          administrative enforcement actions taken;

     (g)  lead Regional legal and technical personnel;

     (h)  any other aspect of the case which is significant and
          should be highlighted, including any extraordinary
          resource demands .which the case may require.

     A referral to DOJ or to Headquarters EPA is tantamount to a
certification by the Region that it believes the case is
sufficiently developed for the filing of a complaint, and that the
Region is ready, willing and able to provide such legal and
technical support as might be reasonably required to pursue the
case through litigation.
                    -RETYPED FROM THE  ORIGINAL-

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                               -  3  -                    9891.5


     As provided in the September 29, 1983, agreement, information
copies of the referral package may be provided to the U.S.
Attorney for the appropriate judicial district in which the
proposed case may be flied.  These information packages should be
clearly labelled or stamped with the following words: "Advance
Copy - No Action Required At This Time".  Also, information copies
should be simultaneously provided to the appropriate OECM division
at Headquarters.  It is important that the directly referred cases
be tracked in our case docket system and Headquarters oversight
initiated.  Copies of the referral cover letter will be provided
to OECM's Office of Management Operations for inclusion in the
automated case docket system when Headquarters informational copy
is received at OECM's Correspondence Control Unit.

Department of Justice Responsibilities

     DOJ shares our desire to handle these cases as expeditiously
as possible.  To that end, DOJ has agreed that, within thirty days
of receipt of the package in the Land and Natural Resources
Division at DOJ Headquarters, it will determine whether
Headquarters DOJ or the U.S. Attorney will have the lead
litigation responsibilities on a specific case.  DOJ will notify
the Regional offices directly of its determination in this regard,
with a copy to the appropriate OECM division.  Although USA
offices will have lead responsibilities in many cases, the Land
and Natural Resources Division will continue to have oversight and
management responsibility for all cases.  All complaints and
consent decrees will continue to require the approval of the
Assistant Attorney General for the division before the case can -be
filed or settled.

     DOJ has reaffirmed the time frame of the Memorandum of
Understanding, dated June 15, 1977, for the filing of cases within
60 days after receipt of the referral package, where possible.
Where it is not possible, DOJ will advise the Region and
Headquarters of any reasons for delays in filing of the case.
However, when DOJ determines that the USA should have the lead
responsibilities in a case, DOJ will forward the case to the USA
within thirty days of referral to the extent feasible.

     DOJ can request additional information from a Region on a
case or return a case to a Region for further development.  In
order to avoid these delays, referral packages should be as
complete as possible and the Regions should work closely with DOJ
to develop referral packages.
                    -RETYPED FROM THE  ORIGINAL-

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                               - 4 -                   9891.5


     The Deputy Administrator has expressed concern in the past on
the number of cases returned to the Regions or declined by EPA or
DOJ.  I have assured the Deputy Administrator that I will closely
track the number of cases defined by DOJ or returned to the
Regions and the reasons for the declination or return as
indications of whether direct referrals are a feasible method of
handling EPA's judicial enforcement program.

Headquarters OECM Responsibilities

     Although OECM will not formally concur on cases directly
referred to DOJ, OECM will still review these packages and may
offer comments to the Regions and DOJ.  DOJ is free to request EPA
Headquarters assistance on cases,, as DOJ believes necessary.  EPA
Headquarters review will help to point out potential issues and
pinpoint areas where future guidance should be developed.  OECM
will also be available as a consultant to both DOJ and the Regions
on these cases.  OECM will be available to address policy issues
as they arise and, as resources permit, may be able to assist in
case development or negotiation of these cases.  Any request from
a Regional office for Headquarters legal assistance should be in
writing from the Regional Administrator to me, setting forth the
reasons for the request and the type of assistance needed.

     OECM also maintains an oversight responsibility for these
cases.  Therefore, Regional attorneys must report the status of
these cases on a regular basis through use of the automated case
docket.  All information for the case required by the case docket
system must appear in the docket and be updated in accordance with
current guidance concerning the automated docket system.

Settlements in Cases Subject to Direct Referral

     I will continue to approve and execute all settlements in
enforcement cases, including those in cases subject to direct
referral and amendments to consent decrees in these cases.  This
is necessary to ensure that Agency policies and enforcement
activities are being uniformly and consistently applied
nationwide.  After the defendants have signed the settlement, the
Regional Administrator should forward a copy of the settlement to
me (or my designee)  with a written analysis of the settlement and
a request that the settlement be signed and referred for approval
by the Assistant Attorney General for the Land and Natural
Resources Division and for entry.  The settlement will be reviewed
by the appropriate OECM Enforcement Division for consistency with
law and Agency policy.
                   -RETYPED  FROM THE ORIGINAL-

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                               - 5 -                   9891.5
     Within twenty-one days from the date of receipt of the
settlement by the appropriate OECM division, I will either sign
the settlement and transmit it to DOJ with a request that the
settlement be entered, or transmit a memorandum to the Regional
Office explaining factors which justify postponement of referral
of the package to DOJ, or return the package to the Region for
changes necessary before the agreement can be signed.

     Obviously, we want to avoid the necessity of communicating
changes in Agency settlement positions to defendants, especially
after they have signed a negotiated agreement.  To avoid this, the
Regional office should coordinate with Headquarters OECM and DOJ
in development of settlement proposals.  A copy of all draft
settlement agreements should be transmitted by the Regional
Counsel to the appropriate Associate Enforcement Counsel for
review before it is presented to the defendant.  The Associate
Enforcement Counsel will coordinate review of the settlement with
the Headquarters program office and respond to the Regional
office, generally, within ten days of receipt of the draft.  The
Regional office should remain in contact with the Headquarters
liaison staff attorney as negotiations progress.  Failure to
coordinate settlement development with appropriate Headquarters
offices may result in rejection of a proposed settlement which has
been approved by the defendant(s) and the Regional office.

     I will also continue to concur in and forward to DOJ all
requests for withdrawal of cases after referral.  In addition, I
will review and concur in any delay in the filing or prosecution
of a case after referral.  This is appropriate because cases which
are referred to DOJ should be expeditiously litigated to
conclusion, unless a settlement or some other extraordinary event
justifies suspending court proceedings.  The review of reasons for
withdrawal or delay of cases after expenditure of Agency and DOJ
resources is an important function of OECM oversight.  Therefore,
should the Regional offices desire to request withdrawal or delay
of a case which has been referred to DOJ, a memorandum setting
forth the reasons for such a request should be forwarded to the
appropriate OECM division, where it will be reviewed and
appropriate action recommended to us.

III.  CASES NOT SUBJECT TO DIRECT REFERRAL

     Those cases not subject to direct referral will be
forwarded by the Regional Administrator to the Office of
Enforcement and Compliance Monitoring for review prior to referral
to DOJ.  OECM has committed to a twenty-one day turn-around time
for these cases.   The twenty-one day review period starts when the
referral is received by the appropriate OECM division.
                   -RETYPED  FROM THE ORIGINAL-

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                               -  6  -                    9891.5


     Within this twenty-one day period, OECM will decide whether
to refer the case to DOJ (OECM then has fourteen additional days
to formally refer the case), to return the case to the Region for
further development, or to require additional information from the
Region.

     Because of this short OECM review period, emphasis should be
placed on developing complete referral packages so that delay
occasioned by requests for additional information from the Region
will be rare.  OECM may refer a case to DOJ which lacks some
information only if the referral can be supplemented with a
minimum of time and effort by information available to the
Regional office which can immediately be gathered and transmitted
to DOJ.  However, this practice is discouraged.  In the few
instances in which a case is referred to DOJ without all
information attached, the information should, at a minimum, be
centrally organized in the Regional office and the litigation
report should analyze the completeness and substantive content of
the information.

     A referral will be returned to the Region, with an
explanatory memorandum, if substantial information or further
development is needed to complete the package.  Therefore, the
Regions should work closely with OECM attorneys to be certain
referral packages contain all necessary information.

IV.  MEASURING THE EFFICACY OF THE DIRECT REFERRAL AGREEMENT

     I will use EPA's case docket system, OECM's quarterly
Management Accountability reports and DOJ's responses to the
referral packages to review the success of tho direct referral
agreement.  OECM will review the quality of the litigation reports
accompanying directly referred cases and discuss the general
quality of referrals from each Regional office at case status
meetings hold periodically with DOJ's Environmental Enforcement
Section.

     If you have any questions concerning the procedures set out
in this memorandum, please contact Richard Mays, Senior
Enforcement Counsel, at FTS 382-4137.


Attachment
                    -RETYPED FROM THE  ORIGINAL-

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                                 1             9891.5

Honorable F. Henry Habicht, II
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C.  20530

Dear Hank:

     As a result of our meeting on Thursday, September 8, 1983 and
the subsequent discussions of respective staffs, we are in
agreement that, subject to the conditions set forth below, the
classes of cases listed herein will be referred directly from
EPA's Regional Offices to the Land and Natural Resources Division
of the Department of Justice in Washington, D.C.

     The terms, conditions and procedures to be followed in
implementing this agreement are:

1.   The Assistant Administrator for Enforcement and Compliance
     Monitoring will waive for a period of one year the
     requirement of the Assistant Administrator's prior
     concurrence for referral to the Department of Justice for the
     following classes of judicial enforcement cases:

     (a)  Cases under Section 1414(b) of the Safe Drinking Water
          Act which involve violations of the National Interim
          Primary Drinking Water Regulations, such as reporting or
          monitoring violations, or maximum contaminant
          violations;

     (b)  The following cases under the Clean Water Act:

          (i)    cases involving discharges without a permit by
                 industrial dischargers;

          (ii)   all cases against minor industrial dischargers;

           iii)  cases involving failure to monitor or report by
                 industrial dischargers;
                   -RETYPED FROM THE  ORIGINAL-

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                               -  2  -                    9891.5


          (iv)   referrals to collect stipulated penalties from
                 industrials under consent decrees;

          (v)    referrals to collect administrative spill
                 penalties under Section 311(j) of the CWA;

     (c)  All cases under the Clean Air Act except the following:


          (i)    cases involving the steel industry;

          (ii)   cases involving non-ferrous smelters;

          (iii)  cases involving National Emissions Standards for
                 Hazardous Air Pollutants;

          (iv)   cases involving the post-1982 enforcement policy.

2.   Cases described In Section 1,  above, shall be referred
    . directly from the Regional Administrator to the Land and
     Natural Resources Division of DOJ in the following manner:

     (a)  The referral package shall be forwarded to the Assistant
          Attorney General for Land and Natural Resources, U.S.
          Department of Justice (DOJ), with copies of the package
          being simultaneously forwarded to the U.S. Attorney
          (USA) for the appropriate judicial district in which the
          proposed case is to be filed (marked "advance copyno
          action required at this time"), and the Assistant
          Administrator for Enforcement and Compliance Monitoring
          (OECM) at EPA Headquarters.   OECM shall have the
          following functions with regard to said referral
          package:

          (i)    OECM shall have no responsibility for review of
                 such referral packages and the referral shall be
                 effective as of the date of receipt of the
                 package by DOJ;  however, OECM shall comment to
                 the Region upon any apparent shortcomings or
                 defects which it may observe in the package.  DOJ
                 may,  of course,  continue to consult with OECM on
                 such referrals.   Otherwise,  OECM shall be
                 responsible only for routine oversight of the
                 progress and management of the case consistent
                 with applicable present and future guidance.
                 OECM shall,  however,  retain final authority to
                 approve settlements on behalf of EPA for these
                 cases,  as in other cases.

          (ii)    The referral package shall be in the format and
                 contain information provided by guidance
                 memoranda as may be promulgated from time to time
                   -RETYPED FROM THE ORIGINAL-

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                               - 3  -                   9891.5

                 by OECM in consultation with DOJ and Regional
                 representatives.

           (iii)  DOJ shall, within 30 days from receipt of the
                 referral package, determine (1) whether the Lands
                 Division of DOJ will have lead responsibility for
                 the case; or  (2) whether the USA will have
                 responsibility for the case.

                 While it is agreed that to the extent feasible,
                 cases in which the USA will have the lead will be
                 transmitted to the USA for filing and handling
                 within this 30-day period, if DOJ determines that
                 the case requires additional legal or factual
                 development at DOJ prior to referring the matter
                 to the USA, the case may be returned to the
                 Regional Office, or may be retained at the Lands
                 Division of DOJ for further development,
                 including requesting additional information from
                 the Regional Office.  In any event, DOJ will
                 notify the Regional Office, OECM and the USA of
                 its determination of the lead role within the
                 above-mentioned 30-day period.

           (iv)   Regardless of whether DOJ or the USA is
                 determined to have lead responsibility for
                 management of the case, the procedures and time
                 limitations set forth in the MOU and 26 CFR 0.65
                 et seq. shall remain in effect and shall run
                 concurrently with the management determinations
                 made pursuant to this agreement.

3.   (a)   All other cases not specifically described in paragraph
          1, above, which the Regional Offices propose for
          judicial enforcement shall first be forwarded to OECM
          and the appropriate Headquarters program office for
          review.  A copy of the referral package shall be
          forwarded simultaneously by the Regional Office to the
          Lands Division of DOJ and to the USA for the appropriate
          judicial district, the USA's copy being marked "advance
          copyno action required at this time."

     (b)   OECM shall review the referral package within twenty-one
          (21) calendar days of the date of receipt of said
          package from the Regional Administrator and shall,
          within said time period,  make a determination of whether
          the case should be (a) formally referred to DOJ,  (b)
          returned to the Regional  Administrator for any
          additional development which may be required,  or (c)
          whether the Regional Administrator should be requested
          to provide any additional material or  information which
          may be required to satisfy the necessary and essential
          legal and factual requirements for that type of case.
                   -RETYPED FROM THE ORIGINAL-

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                               -  4  -                   '9891.5
      (c)  Any request for information, or return of the case to
          the Region shall be transmitted by appropriate letter or
          memorandum signed by the AA for OECM (or her designee)
          within the aforementioned twenty-one day period.  Should
          OECM concur in the proposed referral of the case to DOJ,
          the actual referral shall be by letter from the AA for
          OECM (or her designee) signed within fourteen days of
          the termination of the aforementioned twenty-one day
          review period.  Copies of tho letters referred to herein
          shall be sent to the Assistant Attorney General for the
          Lands Division of DOJ.

      (d)  Upon receipt of the referral package by DOJ, the
          procedures and time deadlines set forth in paragraph No.
          8 of the MOU shall apply.

     In order to allow sufficient time prior to implementation of
this agreement to make the U.S. Attorneys, the Regional Offices
and our staffs aware of these provisions, it is agreed that this
agreement shall become effective December 1, 1983.  Courtney Price
will distribute a memorandum within EPA explaining this agreement
and how it will be implemented within the Agency. (You will
receive a copy.)

     I believe that this agreement will eliminate the necessity of
formally amending the Memorandum of Understanding between our
respective agencies, and will provide necessary experience to
ascertain whether these procedures will result in significant
savings of time and resources.  In that regard, I have asked
Courtney to establish criteria for measuring the efficacy of this
agreement during the one year trial period, and I ask that you
cooperate with her in providing such reasonable and necessary
information as she may request of you in making that
determination.  At the end of the trial period-or at any time in
the interval we may propose such adjustments in the procedures set
forth herein as may be appropriate based on experience of all
parties.

     It is further understood that it is the mutual desire of the
Agency and DOJ that cases be referred to the USA for filing as
expeditiously as possible.
                   -RETYPED  FROM THE  ORIGINAL-

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                               -  5 -                    9891.5
     I appreciate your cooperation in arriving at this agreement.
If this meets with your approval, please sign the enclosed copy in
the space indicated below and return the copy to me for our files.


                                        Sincerely yours,
                                        Alvin L. Aim
                                        Deputy Administrator
Approved:
F. Henry Habicht, II
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
                    -RETYPED FROM THE ORIGINAL-

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                                               OSWER Directive No. 9891
                            August 28,  1986
MEMORANDUM

SUBJECT:   Expanded Civil Judicial Referral Procedures

FROM:     . Thomas L. Adams, Jr.
           Assistant Administrator for Enforcement and Compliance
                 Monitoring

TO:        Regional Administrators'
           Program Office Enforcement Division Directors


Purpose

      The purpose of this memorandum is to provide guidance on several
issues regarding the procedures by which  the Agency refers civil
judicial  referrals to the Department of Justice  (DOJ).  They  are as
follows:  1) expansion of the current direct referral program, 2) pre-
referral  negotiations, 3) hold action requests to DOJ for referred
cases, and 4) filing proofs of claim in bankruptcy by regional
attorneys.
                                                                   ^' 

Expansion of Direct Referral Program

      Last summer the Direct Referral  ProgramV was expanded to
include,  in the second year of operation, alf TSCA and FIFRA
collection actions and all non-governmental mobile source- tampering
and fuels cases.  That expansion has been successful in helping to
expedite  the judicial referral process.  Effective for cases  referred
on or after September 2, 1986, OECM with DOJ encouragement is further
expanding the categories of direct referrals by adding, .the following 8
     V As used here the term "direct referral" denotes case referrals
sent directly from the Regional Administrators to the Assistant
Attorney General for Land and Natural Resources of the Department of
Justice, with simultaneous review by OECM and DOJ.  The current DOJ
address for direct referrals is:  U.S. Department of Justice,
Environmental Enforcement Section, Box 7415, Ben Franklin Station,
Washington, D.C. 20044, or, if express delivery is used, U.S.
Department of Justice, Land and Natural Resources Division,
Environmental Enforcement Section, Room 1521, 9th St. and Pennsylvania
Ave., N.W., Washington, D.C. 20530.

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                                  -2-


classes of cases (see attached copy of my letter of August 28,  1986,
to F. Henry Habicht, Assistant Attorney General for Land and Natural
Resources):

      1.    All collection actions in which the relief requested is
           solely for unpaid administratively or judicially assessed
           penalties under any statute, except for actions to assess
           penalties under CERCLA and cases where there is little prior
           experience in civil judicial enforcement (i.e., the Ocean
           Dumping Act, underground injection control regulation under
           RCRA/SDWA, Clean Air Act NESHAPs other than vinyl chloride
           and asbestos).

      2.    All actions in which the only relief sought is contempt for
           violation of any consent decree or other enforceable order,
           and/or to enforce the terms of any consent decree or other
           enforceable order.V   The  preceding types  of  actions
           against governmental entities shall continue to be referred
           to OECM.

      3.    Clean Air Act cases involving asbestos and vinyl chloride
           National Emissions Standards for Hazardous Air Pollutants.

      4.    All Clean Air Act post-1982 date cases except those
           involving steel producers, smelters and lead sources.V

      5.    All Clean Water Act cases involving NPDES permit violations
           by industrial dischargers, except those involving violations
           relating to or determined by biological methods or
           techniques measuring effluent toxicity.

      6.    All judicial actions alleging interim status violations
           under RCRA 3008(a) except cases involving loss of interim
           status or closure.  This authority will take effect in each
           Region upon the successful referral by the Region of two
           cases in order to demonstrate the requisite experience.
           This authority does not include corrective action cases
           under 3008(h).

      7.    All RCRA judicial actions seeking penalties only, except for
           underground injection control regulation cases.

      8.    All actions to enforce final federal orders issued under
           RCRA 3008(a).   This authority will take effect in each
     V  All  modifications  of  consent  decrees  which result  from any
action  (direct referral) in this paragraph shall continue to require
OECM approval and program office approval, where appropriate, prior to
submission to DOJ for entry by the court.

     V  OECM approval  will also  be required when major changes are made
to SIPs due to a future change in the related NAAQS.

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                                  -3-


           Region upon the successful referral by the Region of two
           cases in order to demonstrate the requisite experience.

     We will add  these expansion cases  to the  5  classes of cases
currently included in the direct referral program listed below:

     1.    Cases under Section 1414(b)  of the Safe Drinking Water Act
           which involve violations of the National Interim Primary
           Drinking Water Regulations,  such  as reporting or monitoring
           violations or maximum contaminant violations.   (Note:   This
           category does not include any causes of action under Section
           1414(b) established by the SDWA Amendments of 1986.)

     2.    The following cases under the Clean Water Act:

           a.    cases involving discharges without a permit by
                industrial  dischargers;

           b.    all cases against minor  industrial dischargers;

           c.    cases involving failure  to monitor or report by
                industrial  dischargers;

           d.    referrals to  collect stipulated  penalties from
                industrials under consent decrees;

           e.    referrals to  collect administrative spill penalties
                under Section 311(j) of  the CWA.

     3.    All stationary source cases under the Clean Air Act except
           the following:

           a.    cases involving the  steel industry;

           b.    cases involving non-ferrous smelters;

           c.    cases involving NESHAPs;

           d.    post-1982 date cases.

     4.    All TSCA & FIFRA collection actions for unpaid
           administratively assessed penalties//

     5.    All mobile source tampering and fuels cases (except
           governmental entity cases) arising under the Clean Air Act,
           sections 203 and 211 respectively.
     V  This  class is now included in actions for unpaid
administratively or judicially assessed penalties arising under any
statute.  See expansion category number 1 above.

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                                  -4-


Attached  for your convenience  in Appendix A is a list of all cases now
covered under the direct referral program.

      OECM will  continue to play a substantive role in these cases,
especially  in view of the  increased size of the Agency's case load and
the need  to ensure that our cases reflect the Agency's priorities.
The Regions should continue to send copies of the case referral
reports directly to OECM,  and  where appropriate, to the program office
for review.  OECM and DOJ  will concurrently review these referrals.
Within 35 days  of receipt  of a copy of the direct referral package,
the appropriate AEC will comment on the merits of the referral to DOJ
and to the  originating regional office.  He may ask the Assistant
Administrator of OECM to recommend to DOJ that the case be further
developed.before filing or returned to the regional office.  OECM will
also continue to oversee the progress and development of these direct
referral  cases.  It should be  noted that in all direct referral cases,
as with all other enforcement  cases, the Regions still must coordinate
settlement  terms with Headquarters and submit consent decrees to OECM
for review  and  approval.   (See memorandum of November 28, 1983,
entitled, "Implementation  of Direct Referrals for Civil Cases
Beginning December 1, 1983" at page 5  (GM-18).)  All other existing
policies  and procedures regarding direct referrals and case management
will remain in  effect.


Pre-referral Negotiations

      OECM has concluded that Headquarters  should not  establish
mandatory requirements for pre-referral negotiations.  Nevertheless,
use by the  Regions of pre-referral negotiations, when and where
appropriate, is to be encouraged by the Regional Counsels.  Also note
that the  Regions should continue to follow current applicable guidance
set forth in Frederick F.  Stiehl's July 30, 1985,  memorandum entitled
"Preparation of Hazardous  Waste Referrals" wherein pre-referral
negotiations for hazardous waste cases are discussed.  In addition,
refer to  the memorandum entitled "Enforcement Settlement
Negotiations," GM-39, dated May 22, 1985, which requires AEC review of
draft consent decrees before they are sent to the defendant.  Draft
consent decrees must be reviewed by an Assistant Chief or senior
lawyer in the DOJ Environmental Enforcement Section before they are
sent to the defendant.
"Hold Action" Recruests

     With a  more  decentralized management  of  the Agency's  enforcement
program, greater responsibility is placed on the regional offices to
develop and manage cases, particularly in the pre-referral stage.  The
Regions are called upon to sufficiently investigate, prepare and
develop civil cases so that DOJ can file them without delay.  When EPA
refers a case, the referral results in the expenditure of time and
resources by OECM and DOJ. -A request from the Region to hold action
on the filing of a case that results from inadequate case preparation


                                              Retyped From The Original

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                                  -5-
or from the desire to conduct negotiations that could have been
conducted prior to referral severely undercuts our enforcement efforts
and results in inefficient use of valuable time and resources in the
Regions, in OECM and at DOJ.

      Therefore,  it  is  OECM policy that  hold  action  requests  should be
used only for strategic or tactical reasons,  such as where the
defendant has made a significant settlement offer after referral, or
where settlement prior to filing will be advantageous to the
government.  A hold action request should be in the form of a
memorandum from the Regional Counsel to the Assistant Administrator
for OECM requesting and explaining its use and the length of delay
requested.  The Assistant Administrator, OECM, will determine whether
the request is justified, and if so, will ask DOJ to delay the filing
of the suit for a specif ied ..period of time.

      OECM will  grant hold action  requests  only where  there is  a  clear
benefit to the Agency resulting from the delay.  In those cases where
there is no reasonable justification for the requested delay, OECM
will ask DOJ to proceed with filing or consider recommending that the
case be withdrawn from DOJ and possibly will disallow credit for the
referral.


Filing Proofs of Claim in Bankruptcy

      EPA's  judicial bankruptcy docket has  grown  enormously in  the  last
two years.  OECM and DOJ are very concerned about the handling of
these cases and future bankruptcy matters.   The law in this vital area
is not well developed;  little favorable precedent exists on the issues
of concern to us.  Moreover,  we must be very careful to avoid risking
large resource expenditures in bankruptcy cases where there may be
little realistic chance of obtaining material recoveries, even if we
prevail on legal issues.  These concerns make it imperative that
bankruptcy cases be especially well prepared and that management
review time be adequate at both OECM and DOJ prior to filing.  See,
e.g., OECM (Draft) Revised Hazardous Waste Bankruptcy Guidance, May
23, 1986, at 1-4.  In the past,  numerous cases have been referred with
very little or no lead time for review and without litigation reports.
Although we appreciate the difficulties of obtaining notice that
bankruptcy proceedings have been initiated by a regulated entity, it
is still important that EPA claims be forwarded for OECM review and
referral to DOJ at the earliest possible time.   These claims will be
referred by the Assistant Administrator, OECM and approved in writing
by the Assistant Attorney General, Land and Natural Resources,  prior
to filing.
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                                  -b-
     . If you  have  any  questions  regarding  these procedures, please
contact Jonathan Libber who can be reached at FTS 475-8777.

Attachments

cc:   Administrator
      Deputy  Administrator
      Assistant Administrators
      Senior  Enforcement Counsel
      General Counsel
      Associate Enforcement Counsels
      Regional Counsels
      Regional Enforcement Contacts
      Regional Program Division  Directors
      F. Henry Habicht II, Assistant Attorney General
        for Land and Natural Resources,  Department of Justice
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                              Appendix A


Categories of Direct Referral Cases As of September 2, 1986


General

      1.    All collection actions in which the relief requested is
           solely for unpaid administratively or judicially assessed
           penalties under any statute,  except for actions to assess
           penalties under CERCLA and cases where there is little prior
           experience in civil judicial enforcement (i.e., the Ocean
           Dumping Act, underground injection control regulation under
           RCRA/SDWA, Clean Air Act NESHAPs other than vinyl chloride
           and asbestos).

      2.    All actions in which the only relief sought is contempt for
           violation of any consent decree or other enforceable order,
           and/or to enforce the terms of any consent decree or other
           enforceable order.V   The preceding types  of actions
           against governmental entities shall continue to be referred
           to OECM.


Clean Air Act

      1.    All stationary source cases under the Clean Air Act except
           the following:

           a.    cases  involving  the steel  industry;

           b.    cases  involving  non-ferrous  smelters;

           c.    NESHAPs cases other than asbestos  and vinyl  chloride;..
                 and

           d.    lead sources.            :

      2.    All mobile source tampering and fuels cases (except
           governmental entity cases) arising under the Clean Air Act,
           sections 203 and-211 respectively.
     V  All  modifications of consent decrees which result from any
action  (direct referral) in this paragraph shall continue to require
OECM approval and program office approval, where appropriate, prior to
submission to DOJ for entry by the court.

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                                  -2-
Clear Water Act

      1.    All cases involving discharges without a permit by
           industrial dischargers.

      2.    All cases against minor industrial dischargers.

      3.    All cases involving failure to monitor or report by
           industrial dischargers.

      4.    Referrals to collect stipulated penalties from industrials
           under court decrees.

      5.    Referrals to collect administrative spill penalties under
           Section 311 (j) of the CWA.

      6.    All Clean Water Act cases involving NPDES permit violations
           by industrial dischargers, except those involving violations
           relating to or determined by biological methods or
           techniques measuring effluent toxicity.


Safe Drinking Water Act

           Cases under Section 1414(b)  of the Safe Drinking Water Act
           which involve violations of the National Interim Primary
           Drinking Water Regulations,  such as reporting or monitoring
           violations or maximum contaminant violations.  (Note:  This
           category does not include any causes of action under Section
           1414(b) established by the SDWA Amendments of 1986.)
RCRA
      1.    All judicial actions alleging interim status violations
           under RCRA 3008(a)  except cases involving loss of interim
           status or closure.  This authority will take effect in each
           Region upon the successful referral by the Region of two
           cases in order to demonstrate the requisite experience.
           This authority does  not include corrective action cases
           under 3008(h).

      2.    All RCRA judicial actions seeking penalties only, except for
           underground injection control regulation cases.
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                                  -3-
      3.    All actions to enforce final federal orders issued under
           RCRA 3008(a).  This authority will take effect in each
           Region upon the successful referral by the Region of two
           cases in order to demonstrate the requisite experience.
TSCA & FIFRA
           All TSCA & FIFRA collection actions for unpaid
           administratively assessed penalties.V
     V  This  class  is  now included in actions  for  unpaid
administratively or judicially assessed penalties arising under any
statute.  See General category number 1 above.

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                            August 28,  1986
Honorable F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C.  20530

                         Re:  Direct Referrals

Dear Hank:

     During the past year  OECM has  been holding discussions with the
Headquarters program offices and with the 10 Regional Counsels on how
to improve and expand the direct referral program, wherein certain
cases are referred directly from the Regional .Administrator to your
office.  Because the program is working well, the consensus of the
Associate Enforcement Counsels,  the program compliance division
directors and the Regional Counsels is to expand the classes of cases
subject to direct referral.  We have also consulted with members of
your staff and understand that they acquiesce in this concept insofar
as the classes of cases set forth herein are concerned.

     This  letter, when  signed by you, will  serve  as  an amendment to
our September 29,  1983,  agreement which set forth the conditions of
the initial direct referral pilot project.  It will also amend the
June 15, 1977, Memorandum of Understanding between our respective
Agencies.

     The  following  8 classes of cases will  be added  to the direct
referral program:

     1.    All collection actions in which the relief requested is
           solely for unpaid administratively or judicially assessed
           penalties under any statute,  except for actions to assess
           penalties under CERCLA and cases where there is little prior
           experience in civil judicial enforcement  (i.e., the Ocean
           Dumping Act,  underground injection control regulation under
           RCRA/SDWA,  Clean Air Act NESHAPs other than vinyl chloride
           and asbestos).
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                                  -2-


      2.    All actions in which the only relief sought is contempt for
           violation of any consent decree or other enforceable order,
           and/or to enforce the terms of any consent decree or other
           enforceable order.V  The preceding types of actions
           against governmental entities shall continue to be referred
           to OECM.

      3.    Clean Air Act cases involving asbestos and vinyl chloride
           National Emissions Standards for Hazardous Air Pollutants.

      4.    All Clean Air Act post-1982 date cases except those
           involving steel producers, smelters, and lead sources.V

      5.    All Clean Water Act cases involving NPDES permit violations
           by industrial dischargers, except those involving violations
           relating to or determined by biological methods or
           techniques measuring effluent toxicity.

      6.    All judicial actions alleging interim status violations
           under RCRA 3008(a) except cases involving loss of interim
           status or closure.  This authority will take effect in each
           Region upon the successful referral by the Region of two
           cases in order to demonstrate the requisite experience.
           This authority does not include corrective action cases
           under 3008(h).

      7.    All RCRA judicial actions seeking penalties only, except for
           underground injection control regulation cases.

      8.    All actions to enforce final federal orders issued under
           RCRA 3008(a).  This authority will take effect in each
           Region upon the successful referral by the Region of two
           cases in order to demonstrate the requisite experience.

      We  will  add  these expansion  cases to the  5 classes of  cases
currently included in the direct referral program listed below:

      1.    Cases under Section 1414(b)  of the Safe Drinking Water Act
           which involve violations of the National Interim Primary
           Drinking Water Regulations,  such as reporting or monitoring
           violations or maximum contaminant violations.   (Note:   This
           category does not include any causes of action under section
           1414(b) established by the SDWA Amendments of 1986.)
     \J  All  modifications of consent  decrees  which result  from any
action  (direct referral) in this paragraph shall continue to require
OECM approval and program Office approval, where appropriate, prior to
submission to DOJ for entry by the court.

     f/  OECM approval  will also be  required when major  changes are made
to SIPs due to a future change in the related NAAQS.

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                                  -3-


      2.    The following cases under the Clean Water Act:

           a.    cases involving discharges  without  a permit  by
                 industrial dischargers;

           b.    all cases  against minor  industrial  dischargers;

           c.    cases involving failure  to  monitor  or  report by
                 industrial dischargers;

           d.    referrals  to collect  stipulated penalties  from
                 industrials under consent decrees;

           e.    referrals  to collect  administrative spill  penalties
                 under Section 311 (j)  of  the CWA.

      3.    All stationary  source cases under the Clean Air Act except
           the following:

           a.    cases involving the steel industry;

           b.    cases involving nonferrous  smelters;

           c.    cases involving NESHAPs;

           d.    post-1982  date cases.

      4.    All TSCA & FIFRA-collection actions for unpaid
           administratively assessed penalties.

      5.    All mobile source tampering and fuels cases (except
           governmental entity cases)  arising under the Clean Air Act,
           Sections 203 and 211 respectively.

      OECM will continue to play a substantive  role  in  these  cases,
especially in view of the  increased size of the Agency's case load and
the need to ensure that our cases reflect the Agency's priorities.
OECM and DOJ will simultaneously review these referrals.

      Within  35 days of  receipt of a copy of the direct referral
package,  the appropriate AEC will comment on the merits of the
referral to DOJ and to the originating regional office.  He may ask
the Assistant Administrator of OECM to recommend to DOJ that the case
be further developed before filing or returned to the regional office.
OECM will also continue to oversee the progress and development of
these direct referral cases and will continue to approve all judicial
settlements on behalf of EPA.  All other agreed-upon conditions and
procedures regarding direct referrals and case management will remain
in effect.

      In  order to allow  sufficient time prior to implementation of the
expansion and to make the U.S. Attorneys, the regional offices and our
staffs aware of its provisions, it is agreed that this agreement shall
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                                  -4-


become effective for cases referred from a Region on or after
September 2, 1986.  I will distribute a memorandum to the Regions,  the
Headquarters program offices and within OECM explaining the expansion
and how it will be implemented.

      I appreciate your  cooperation  in  arriving at this amendment to
our agreement.  If this direct referral case expansion meets with your
approval, please sign in the space provided below and return a copy of
the letter to me for our files.

                                 Sincerely,


                                 Thomas L.  Adams,  Jr.
                                 Assistant  Administrator
Approved:
F. Henry Habicht, II
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice

cc:  Richard H.  Mays
     Senior Enforcement Counsel
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                                            OSWER Directive No.  9891. 5A
                            January  14,  1988
MEMORANDUM

SUBJECT:   Expansion of Direct Referral of Cases to the Department of
           Justice

FROM:      Thomas L. Adams, Jr.
           Assistant Administrator

TO:        Regional Administrators, Regions I - X
           Deputy Regional Administrators, Regions I - X
           Regional Counsels, Regions I - X
           Assistant Administrators
           Associate Enforcement Counsels
           OECM Office Directors

I.    BACKGROUND

      During  the past year, my office  has  worked closely with  the
Regions, the Headquarters program offices, and the Land and Natural
Resources Division of the U.S. Department of Justice  (DOJ) to expand
the use of direct referral of cases.  On January 5, 1988,  EPA and DOJ
entered into an agreement which expanded the categories of civil,
judicial cases to be referred directly to DOJ Headquarters from the
EPA Regional offices without my prior concurrence.  In entering into
this agreement, EPA has taken a major step towards streamlining the
enforcement process and more fully utilizing our Regional enforcement
capabilities.

      On January 13, 1988,  the Administrator  signed an interim
delegations package which will allow the Agency to immediately
implement expanded direct referrals to DOJ.  A final delegations
package is now being prepared for Green Border review.

      This memorandum provides guidance  to EPA  Headquarters  and
Regional personnel regarding procedures to follow in implementing the
expanded direct referral agreement.  Prior guidance on direct
referrals appears in a November 28, 1983, memorandum from Courtney
Price entitled  "Implementation of Direct Referrals for Civil Cases
Beginning December 1,  1983."  That guidance is superseded to the
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extent that the current guidance replaces or changes procedures set
forth therein; otherwise the 1983 document remains in effect.

II.   SUMMARY

      Effective immediately,  for  non-CERCLA cases,  and  effective April
1, 1988, for CERCLA cases, the Regions will directly refer to the
Department of Justice all civil cases other than those listed in the
attachment to this memorandum entitled "Cases Which Will Continue to
be Referred Through Headquarters."  This attachment lists cases in new
and emerging programs and a few,  highly-selected additional categories
of cases where continued referral through EPA Headquarters has been
determined to be appropriate.  EPA Headquarters will have 35 days to
review the case simultaneously with DOJ.  EPA Headquarters will focus
its review primarily on significant legal or policy issues.  If major
legal or policy issues are raised during this review, EPA Headquarters
will work with the Region to expedite resolution.

      Attached is  a  copy  of  the agreement between EPA and DOJ, which  is
incorporated into this guidance.   Many of the procedures for direct
referral of cases are adequately explained in the agreement.  However,
there are some points I would like to emphasize.

III.  PROCEDURES

      A.    CASES SUBJECT TO DIRECT REFERRAL

      The attached agreement  lists those categories of  cases  which must
continue to be referred through the Office of Enforcement and
Compliance Monitoring (OECM).  All other cases should be referred
directly by the Regional Office to DOJ Headquarters,  with the
following two exceptions:

      (1)   cases which contain counts which could be directly referred
           and counts which require prior EPA Headquarters review
           should be referred through EPA Headquarters, and

      (2)   any referral which transmits a consent decree should be
           referred through EPA Headquarters,  except where existing
           delegations provide otherwise.

If you are uncertain whether a particular case may be directly
referred,  you should contact the appropriate Associate Enforcement
Counsel for guidance.

      B.    PREPARATION AND DISTRIBUTION OF REFERRAL PACKAGES

      The contents of a referral package  (either  direct to DOJ or to
EPA Headquarters)  should contain three primary divisions: (1) a cover
letter; (2)  the litigation report;  (3) the documentary file supporting
the litigation report.
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      The cover letter should contain a summary of the following
elements:

      (a)   identification of the proposed defendant(s);

      (b)   the statutes and regulations which are the basis for the
           proposed action against the defendant(s);

      (c)   the essential facts upon which the proposed action is based,
           including identification of any significant factual issues;

      (d)   proposed relief to be sought against defendant(s);

      (e)   significant or precedential legal or policy issues;

      (f)   contacts with the defendant(s), including any previous
           administrative enforcement actions taken;

      (g)   lead Regional legal and technical personnel;

      (h)   any other aspect of the case which is significant and should
           be highlighted, including any extraordinary resource demands
           which the case may require.

      A direct  referral to DOJ is  tantamount  to a certification  by  the
Region that it believes the case is sufficiently developed for filing
of a complaint, and that the Region is ready, willing and able to
provide such legal and technical support as might be reasonably
repaired to pursue the case through litigation.

      Referral  packages should be  addressed to  the Assistant  Attorney
General, Land and Natural Resources Division, U.S. Department of
Justice, Washington, D.C. 20530.  Attention:  Chief, Environmental
Enforcement Section.  Copies of all referral packages should also be
sent to the Assistant Administrator for OECM and the appropriate
Headquarters program .office.

      DOJ has reaffirmed the time  frame of the  Memorandum of
Understanding,  dated June 15, 1977, for the filing of cases within 60
days after receipt of the referral package,  where possible.  DOJ can
request additional information from a Region on a case .or return a
case to a Region for further development.  In order to avoid these
delays, referral packages should be as complete as possible and the
Regions should work closely with DOJ to develop referral packages.

      C.    IDENTIFICATION AND RESOLUTION OF SIGNIFICANT LEGAL AND
           POLICY ISSUES

      A major element  in assuring  the  success of the expanded direct
referral program is an efficient process to identify and resolve
significant legal and policy issues.  This should be done as early as
possible to assure that unresolved issues not delay a referral.   Early
identification and resolution will also help the Agency to avoid


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devoting significant Regional resources to preparing a litigation
report for a case which will ultimately be considered inappropriate
for referral.

      The procedures  make  clear  that  the Regional  office  has  the
initial responsibility for identification of significant legal and
policy issues.  Such issues should be identified to OECM and the
appropriate Headquarters program office as soon as a decision is made
to proceed with litigation.  All parties should then work to address
the issues as quickly as possible, preferably before the referral
package is sent to Headquarters.

      The agreement with DOJ  also  outlines procedures  for Headquarters
review of referral packages to determine whether any significant legal
or policy issues exist which would impact filing and the process for
resolution of such issues.  If an issue surfaces during the 35-day
Headquarters review period, OECM will work for quick resolution of the
issue, with escalation as necessary to top Agency management.  This
should serve primarily as a "safety valve" for those few issues not
previously identified, rather than as the point at which issues are
first raised.

      Finally,  if DOJ raises  a significant legal or policy  issue  during
its review, OECM will work with the Region and the Headquarters
programs office to expedite resolution of the.issue.   If DOJ makes a
tentative determination to return a referral, DOJ will consult with
OECM and the Regional Office in advance of returning the referral.

      D.    CASE QUALITY/STRATEGIC VALUE

      OECM  will  evaluate Regional  performance as to the quality and
strategic value of cases on a generic basis.  While OECM will not
request withdrawal of an individual referral based on concerns about
quality or strategic value, it will consider these factors during the
annual audits of the Offices of Regional Counsel and the annual
Regional program office reviews.  Concerns relative to issues of
quality or strategic value will also be raised informally as soon as
they are identified.

      E.    WITHDRAWAL OF CASES PRIOR TO FILING

      Cases should be fully developed and ready for filing  at  the time
they are referred to DOJ Headquarters.   Thus, case withdrawal should
be necessary only under the most unusual circumstances.   If, after
consultation with OECM, withdrawal is determined to be appropriate,
the Regions may request that DOJ withdraw any directly referred case
prior to filing.  Copies of the Region's request should be sent to the
Assistant Administrator for OECM and the appropriate program office.

      F.    MAINTENANCE OF AGENCY-WIDE CASE TRACKING SYSTEM

      In order  to assure effective management of the Agency's
enforcement program,  it is important to maintain an accurate, up-to-


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date docket and case tracking system.  Regional attorneys must
continue to report the status of all cases, including directly
referred cases, on a regular basis through use of the national
Enforcement Docket System.  All information for the case required by
the case docket system must appear in the docket and be updated in
accordance with current guidance concerning the automated docket
system.

      If you have  any questions  concerning  the procedures  set  forth  in
this memorandum, please contact Jonathan Cannon, Deputy Assistant
Administrator for Civil Enforcement, at FTS 382-4137.

Attachment

cc:   Hon.  Roger J. Marzulla
      David Buente
      Nancy Firestone
      Assistant  Section Chiefs
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Honorable Roger J. Marzulla
Acting Assistant Attorney General
Land and Natural Resources Division
Washington, D.C.  20530

Dear Roger:

     As  you know,  the Agency has been considering changes in existing
procedures  to increase the effectiveness of its enforcement program.
One change, which we discussed at our recent meeting with you, is a
major expansion of the direct referral program for civil judicial
enforcement actions, whereby such cases are referred directly from the
Regional Administrators to your  office.

     We  believe the past  successes  of this  program and the increased
maturity of Regional staff warrant adopting direct referrals as the
basic mode  of operation.  Thus,  with your acceptance, we intend to
utilize direct referrals to your office for virtually all civil cases
other than  those relating to certain new statutory authorities or
emerging programs where judicial enforcement experience is limited.
As such programs mature, we will expand the scope of direct referrals
to cover them.  In addition, as  new programs are implemented under new
statutory or regulatory requirements, we contemplate an initial period
of referrals through Headquarters for these cases prior to their
incorporation into the direct referral process.

     Based on discussions within the Agency and with your staff, we
would propose the direct referrals cover all civil cases but those
listed in Attachment A.  This list includes cases in new and emerging
programs and a few, highly-selected additional categories of cases
where continued referral through Headquarters has been determined to
be appropriate.   This would allow direct referral of the vast majority
of civil cases,  including those which would still require significant
national coordination to assure  a consistent approach  (such as auto
coating VOC air cases).  For this reason,  the procedures applicable to
this small  subset of cases as outlined in the memorandum entitled
"Implementing Nationally Managed or Coordinated Enforcement Actions:
Addendum to Policy Framework for State/EPA Enforcement Agreements"
dated January 4, 1985 will remain in effect.

     For all but CERCLA cases, this  expansion would  be effective on
January I,  1988.  For CERCLA cases,  direct referrals would take effect
on April 1, 1988.  We anticipate joint issuance by our offices of the
model CERCLA litigation report prior to that date.

     Also  attached  (Attachment B) is  the outline of  the direct civil
referral process as the Agency intends to implement it.  This outline
refines current  direct referral procedures by more clearly focusing
authority and accountability within the Agency.


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                                  -2-


      Under these modified procedures,  the  Regional Office has  the  lead
on direct referrals.  The Region will be solely responsible for the
quality of the referral.  In this context,  quality encompasses both
the completeness and accuracy of the litigation report and the
strategic value of the case.  Any problems involving case quality
should be raised directly with the Region.

      OECM will  evaluate Regional performance  as  to the quality and
strategic value of cases on a generic basis.  While OECM will not
request withdrawal of an individual referral on the basis of concerns
about quality or strategic value,  we are committed to working with the
Regional Offices to assure that current standards are maintained or
even exceeded in future referrals.   We welcome your input on Agency
performance to assist us in this regard.

      As  the procedures  detail, OECM  (as well  as  the  appropriate
Headquarters office) will continue to be actively involved in
identification and resolution of significant legal and policy issues.
Such issues normally should be raised and resolved prior to the actual
referral.  If such an issue surfaces during the 35-day Headquarters
review period, we will work for quick resolution of the issue, with
escalation as necessary to top Agency management.  During the period
required for resolution, DOJ will treat the referral as "on hold".   In
the unusual circumstance where an issue is still unresolved after 60
days from the date of referral, we would contemplate withdrawal of the
referral by the Agency pending resolution unless a formal "hold"
letter has been submitted in accordance with the procedures contained
in the memorandum entitled "Expanded Civil Judicial Referral
Procedures" dated August 28, 1986.

      If  a significant policy or legal  issue is raised by DOJ  during
its review, OECM remains committed to work with the Regional and
program offices to assure expedited resolution of the issue.
Obviously, these procedures are not intended to inhibit discussions
between our offices to facilitate a resolution.   In addition,  if DOJ
makes a tentative determination to return a referral, we understand
that you will consult with OECM and the Regional Office in advance of
returning the referral.

      We  believe  this expansion in use  of direct  referrals represents  a
major advance in streamlining the Agency's enforcement process and
appreciate your support in its implementation.  This letter, upon your
acceptance, will supersede the letters of September 29,  1983,  October
28, 1985, and August 28, 1986 on this subject  and constitute an
amendment to the June 15, 1977 Memorandum of Understanding between our
respective agencies.
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                                  -3-


      I  appreciate your  continuing cooperation and  support  in our
mutual efforts to make our enforcement process more effective.   I hope
this letter meets your approval.  If so, please sign in the space
provided below and return a copy of the letter to me for distribution
throughout the Agency.

                               Sincerely,
                              Thomas L. Adams, Jr.
                              Assistant Administrator


Attachments

Approved:




	                January 5, 1988
Roger J. Marzulla                                           Date
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
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        RESPONSIBILITIES AND PROCEDURES FOR DIRECT REFERRALS OF
    CIVIL JUDICIAL ENFORCEMENT ACTIONS TO THE DEPARTMENT OF JUSTICE

      (1)   Regional Offices have the lead on direct referrals to the
Assistant Attorney General, Land and Natural Resources Division,
Department of Justice  (DOJ); Regions will be responsible for the
quality of referrals.

      (2)   Regions will identify any significant legal/policy issues as
soon as the decision is made to proceed with litigation.  Such issues
will be raised in writing  for consideration by OECM and the
appropriate Headquarters program office.  All parties will attempt to
resolve such issues as early as possible, preferably before the
referral package is sent to Headquarters.  Regions will also flag such
issues in the cover memo transmitting the referral.

      (3)  . At the same time the referral is sent to DOJ, it will be
sent to OECM and the appropriate Headquarters program office for a
simultaneous and independent review to determine whether any other
significant policy/legal issues exist which would impact filing.

      (4)   Headquarters offices will complete their reviews within 35
days of receipt of the referral.  Each Headquarters office will notify
the Region in writing of any significant issues identified or that no
such issues have been identified.  A copy of this memorandum will be
sent to DOJ.  The Headquarters offices will coordinate their reviews
and, to the extent possible, provide a consolidated response.

      (5)   If significant  issues are identified and not readily
resolved, Headquarters (the Assistant Administrator for OECM), after
consultation with the program office Assistant Administrator, may
request the Regional Administrator to withdraw the case.  If the
Regional Administrator and the Assistant Administrator for OECM (and,
as applicable, the program office Assistant Administrator) are unable
to agree on the appropriate resolution of the issue, the issue would
be escalated to the Deputy Administrator.

      (6)   If a significant issue is not resolved within 60 days of the
date of referral, the case will normally be withdrawn pending
resolution unless an appropriate "hold" letter is sent to DOJ in
accordance with the procedures contained in the memorandum entitled
"Expanded Civil Judicial Referral Procedures" dated August 28, 1986
(document GM-50 in the General Enforcement Policy Compendium.)

      (7)   Headquarters will NOT request withdrawal of a referral
package for any of the following reasons:

           -- overall quality of referral package
           -- strategic value of case
           -- adequacy of documentation

      (8)   If DOJ makes a tentative decision to return a referral to
EPA, it will consult with  the Regional Office and OECM. prior to making
a final decision to return the case.
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                                  -2-
      (9)   Headquarters will evaluate on a generic basis (e.g., trends
or repeated concerns) the quality/strategic value of a Region's
referrals.  Concerns relative to issues of quality or strategic value
will be raised informally as soon as they are identified.

      (10)  Headquarters oversight will be accomplished primarily
through annual program and OGC/OECM reviews, or ad hoc reviews as
problems are identified in a given Region.

Note:      Where a referral also transmits a signed consent decree for
           Headquarters approval, the procedures applicable to
           processing settlements shall apply in lieu of these
           procedures.
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     CASES WHICH WILL CONTINUE TO BE REFERRED THROUGH HEADQUARTERS

ALL MEDIA;       Parallel  Proceedings  -- Federal civil enforcement
                 matters where a criminal  investigation of the same
                 violations  is pending
RCRA/CERCLA;
TSCA/FIFRA;
WATER:
UST enforcement

Enforcement of RCRA land ban and minimum technology
regulations

Enforcement of administrative orders for access and
penalty cases for failure to comply with requests for
access  (Section 104)

Referrals to enforce Title III of SARA, the Community
Right-to-Know provisions

Referrals to compel compliance with or restrain
violations of suspension orders under FIFRA Section
6(c)

FIFRA actions for stop sales, use, removal, and
seizure under Section 13

Referrals to enforce Title III of SARA, the Community
Right-to-Know provisions

Injunctive actions under Section 7 of TSCA (actions
for injunctive relief to enforce the regulations
promulgated under Section 17 or Section 6 could be
directly referred)

Clean Water Act pretreatment violationsfailure of a
POTW to implement an approved local pretreatment
program

Clean Water Act permit violations relating to or
determined by biological methods or techniques
measuring whole effluent toxicity

PWSS cases to enforce against violations of
administrative orders which were not issued using an
adjudicatory hearing process
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                                  . 2
WATER           Cases brought under the Marine Protection, Research
(contd.):        and  Sanctuaries Act  (MPRSA)

                UIC  cases1

AIR:            Smelter cases
     1   The ten cases  referred to  date  indicate  that  the  regulations
raise interpretive issues of continuing national significance.  There
also appears to be a need for greater experience at gathering the
facts necessary to prove violations and support appropriate relief.
For this reason, the first '3 UIC cases from each Region shall be
referred through Headquarters.  Once the Associate Enforcement Counsel
for OECM determines that the Region has completed three successful
referrals, the Region may proceed to refer these cases directly to
DOJ.

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                                           OSWER Directive # 9832.21


                         January 24,  1990
MEMORANDUM
SUBJECT:  Use of Stipulated Penalties in EPA Settlement
          Agreements

FROM:     James M. Strock
          Assistant Administrator

TO:       Addressees
                       ?               .

     Attached is final guidance on the use of stipulated
penalties in EPA settlement agreements.  This guidance was
developed with help of a workgroup, which consisted of
representatives from other Headquarters offices, Regional Counsel
offices, and the Department of Justice.  It also reflects
comments made on a draft of the guidance which was circulated for
review on August 16, 1989.

     Several commenters made procedural suggestions such as
recommending an expedited referral process for referring cases
for collection of stipulated penalties to DOJ, requesting more
specifics on the role of OECM, ORC, and DOJ in decisions to
compromise stipulated penalties, and requesting specific regional
procedures for demanding and compromising stipulated penalties.
All these issues will be addressed in the Manual on Monitoring
and Enforcing Administrative and Judicial Orders, to issued in
final form soon.

     Several commenters objected to the language in section I of
the guidance cautioning against attaching stipulated penalties to
violations of the consent agreement which are also violations of
a statute or regulation.  This language has been modified in the
final version.  The guidance now states that agency attorneys
should consider the advantages and disadvantages of attaching
stipulated penalties to a requirement for which the agency could
get statutory maximum penalties.

     Several commenters also disagreed with the language in
section IV discouraging caps.  This language has been revised to
reflect these comments.  Only caps on the amount of penalties are
now discourage.  Caps on the number of days for which stipulated
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                               -2-        OSWER Directive # 9832.21

penalties can accrue combined with a reservation of all
enforcement responses available to the government for violation
of the consent agreement eliminate the problems associated with
caps on penalty amounts and are now mentioned as an option to
consider.

     One commenter asked that the guidance address the practice
of forgiving stipulated penalties for violation of interim
milestones where the final deadline for compliance is met.  It is
now address in section VI of the guidance and allowed in
situations where minimal environmental degradation results from
missing the interim milestones and accrued penalties are kept in
escrow until compliance is achieved.

     Two commenters objected to the language in the first
paragraph regarding the applicability of the guidance to
administrative cases.  This language has not been changed because
in fact the agency does not have legal authority to assess
stipulated penalties in a given administrative case is a
threshold issue to be determined by ORC, OECM, and DOJ based on
their legal expertise concerning the particular statute involved.

     Finally, one commenter suggested that the language in
section VI restricting compromise of stipulated penalties to
"rare, unforeseen circumstances" was too strong.  The intent of
this section and the guidance in general is that stipulated
penalties should be set at levels and attached to provisions that
the government is ready to vigorously enforce dollar for dollar
except in "rare, unforeseen circumstances."  Stipulated penalties
should never be set at levels higher than we intend to enforce or
attached to provisions we are not prepared to enforce.  This
practice sends the regulated community the wrong message, namely
that accrued stipulated penalties are only a starting point or
opening offer and are subject to negotiation.

     If you have any questions concerning this guidance, please
contact Elise Hoerath of the Air Enforcement Division of OECM,
FTS 382-4577.

Attachment
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                               -3-         OSWER Directive # 9832.21
Addressees:
     Regional Administrators
     Regions I-X

     Deputy Regional Administrators
     Regions I-X

     Regional Counsels
     Regions I-X

     Associate Enforcement Counsels

     Headquarters Enforcement Office Directors

     Mary T. Smith, Acting Director
     Field Operations and Support Division
     Office of Mobile Sources

     E. Donald Elliott
     General Counsel

     David Buente, Chief
     Environmental Enforcement Section
     U.S. Department of Justice

     Workgroup Members
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                                           OSWER Directive # 9832.21


                         January 24, 1990


MEMORANDUM
SUBJECT:  Use of  Stipulated Penalties in EPA Settlement
          Agreements

FROM:     James M. Strock
          Assistant Administrator

TO:       Addressees


     This memorandum provides guidance on the use of stipulated
penalties in settlement of enforcement actions.  For each issue
discussed, a preferred approach is stated along with its
rationale.  These preferred approaches should be followed absent
unusual circumstances dictating an alternative approach.  The
guidance applies  to judicial settlements except that it does not
supersede the September 21, 1987 Guidance on the Use of
Stipulated Penalties in Hazardous Waste Consent Decrees.  It also
applies to administrative cases where EPA has legal authority to
assess stipulated penalties.

     Stipulated penalties are penalties agreed to by the parties
to a settlement agreement for violation of the agreement's
provisions.  These penalties are then made a part of the
agreement, and are enforceable if it is violated.  In EPA
settlement agreements, the primary goal of a stipulated penalty
is to act as an effective deterrent to violating the settlement
agreement.

     I.   Types of Requirements to Which Stipulated Penalties
          Should Apply

     Any clearly definable event in a settlement agreement may be
appropriate for stipulated penalties in a given case.  Such
events include testing and reporting requirements, interim and
final milestones  in compliance schedules, and final demonstration
of compliance.  The government litigation team assigned to a case
should carefully consider which consent agreement provisions are
appropriate for stipulated penalties and be prepared to
vigorously enforce them.  Stipulated penalties can even be
attached to consent agreement provisions requiring payment of up-
front penalties so long as the stipulated penalties are higher
than the interest, computed at the statutory interest rate, on


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                               -2-        OSWER Directive # 9832.21

the underlying amount.  Every consent agreement requirement to
which stipulated penalties be attached should be drafted to
ensure that the standards for determining compliance are clear
and objective, and that any information required to be submitted
to EPA is clear and unequivocal.

     In general, stipulated penalties are particularly important
for requirements of the consent agreement which do not represent
regulatory or statutory violations for which the agency could
potentially get statutory maximum penalties.  Such provisions may
include a requirement to install specific control equipment where
the regulations and statute involved require only compliance with
a discharge or emissions standard, or environmental auditing or
management requirements designed to ensure future compliance.
Without stipulated penalty provisions, penalties for violation of
such provisions in judicial cases are only available at the
judge's discretion in a contempt action under the court's
inherent authority to enforce its own order.

     Attaching stipulated penalties to violations of consent
agreement provisions which are also violations of a statute or
regulation with a specified statutory maximum penalty has
advantages and disadvantages which Agency attorneys should
consider carefully in the context of a particular case.  The
Advantage is ease of enforcement.  The Agency can pursue
violations without having to bring a new enforcement action or,
in the judicial context, a contempt action.  The disadvantage is
where stipulated penalties for such violations are set at less
than the statutory maximum, parties may argue that the government
has bargained away some of its enforcement discretion.

     If a particularly egregious statutory or regulatory
violation occurs for which the government feels the applicable
stipulated penalties are not adequate, sources may claim the
government is equitably estopped from pursuing other enforcement
responses.  Sources may argue in the context of a contempt action
or new enforcement action that the government has already
conceded in the consent agreement that a fair penalty for this
type of violation is the stipulated penalty, and therefore, the
court should not require any additional penalty.  Sources may
make this argument even if the government has reserved all rights
to pursue various enforcement responses for consent agreement
violations.l
     1  In considering whether  to  attach  penalties to violations
uncovered by an  environmental audit,  the  November 14, 1986 Final
EPA Policy on the Inclusion of Environmental Auditing Provisions in
Enforcement Settlements (GM-52)  should be consulted.

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                               -3-        OSWER Directive # 9832.21

     II.  Level of Stipulated Penalties

     Because the statutes EPA is charged with enforcing vary so
widely, penalty schedules for all media or types of violations
are not practical.  There are, however, several important
criteria which should always be considered in setting stipulated
penalty amounts.  Each program office, in concert with the
appropriate OECM Associate Enforcement Counsel, may want to
consider providing further, more specific guidance on appropriate
levels or ranges for stipulated penalties based on the criteria
below.

     One key element which applies to setting the levels of all
stipulated penalties for violation of a consent agreement
provision is that the defendant is by definition a repeat
offender when the provision is violated.  For this reason, such
stipulated penalties should be higher on a per day basis than the
initial civil penalties imposed.  See Guidelines for Enforcing
Federal District Court Orders in Environmental Cases (GM-27).

     The economic benefit accruing to a source due to violation
should be recovered in order for the stipulated penalty to be
effective deterrent.  For some types of violations, such as
notice provisions, the economic benefit of noncompliance may be
minimal, though significant stipulated penalties may be
appropriate based on other criteria as discussed below.  For
these types of violation of provisions which involve quantifiable
delayed or avoided costs, such as installation of control
equipment as part of a compliance schedule, the minimum
stipulated penalty should be the economic benefit of
noncompliance.  However, the recidivism factor will nearly always
justify a penalty well above this minimum, which often serves as
the point of departure for minimum initial penalty.

     The source's ability to pay can be another important
criterion to consider.  How much of a deterrent a stipulated
penalty is will depend on how financially significant it is to
the source.  The same stipulated penalty may be financially
crippling to one source, while merely a routine business expense
for another.  However, the burden is always on the defendant to
raise such issues during negotiations and to justify lower
stipulated penalties than the government has proposed.  Financial
ability to pay a penalty can be determined using the ABEL
computer program for corporate violators and the MABEL computer
program for municipal violators.
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                                -4-         OSWER Directive # 9832.21

      It  should  be  emphasized that this factor should not be
considered  a  reason  for  lowering the level of stipulated
penalties below the  level equal to the economic benefit.  It
would mainly  affect  the  degree  to which this base minimum amount
is increased  to account  for the recidivist nature of the
violation.  The key  concern is  that stipulated penalties should
be set at levels which are significant enough to deter violations
rather than resulting in a "pay-to-pollute" scheme.

      Another  criterion which should be considered in setting
stipulated  penalty amounts is the gravity of the violation, i.e.,
how critical  is the  requirement to the overall regulatory scheme
and how  environmentally  significant is the violation.  The
environmental significance factor should include consideration of
potential and actual harm to human health and the environment.
In general, consent  agreement provisions which are central to a
particular  regulatory scheme should have higher stipulated
penalties than  provisions that  are considered less significant.
It is up to each enforcement program to make judgments about the
relative importance  of respective requirements.  As previously
noted, some consent  agreement requirements such as notice
provisions  may  have  little or no associated economic benefit, but
my nevertheless be critical to  the regulatory program in question
and would warrant  high stipulated penalties.

      Another  consideration related to the gravity component is
the source's  history of  compliance.  If the source has a record
of previous violations,  a higher stipulated penalty may be
necessary because  earlier enforcement responses were ineffective
in deterring  subsequent  violations.

      Another  option  to consider whenever setting stipulated
penalty  levels  is  an escalating schedule, in which the stipulated
penalty  increases  with the length of the violation.  For example,
violations  of up to  two  weeks might have stipulated penalties of
$1000 per day while  violations  of two to four weeks might have
stipulated  penalties of  $2000 per day,  and so on.

      III. Method of  Collection

      Settlement agreements should state the method by which
stipulated penalties will be collected.  Two options are for the
settlement agreement to  provide that the penalty is automatically
due upon the occurrence  or non-occurrence of a specified event,
or it may make  the penalty payable only on demand by the
government.

     Automatic  payment is the preferred approach.  It saves
resources which would otherwise be devoted to making demands for


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                                -5-         OSWER Directive # 9832.21

payment  and may  put  the  government in a more advantageous
position should  the  source declare bankruptcy.   If payment is
made  on  demand,  the  consent agreement should make it clear that
the legal liability  of the source for the  stipulated penalty
attaches immediately upon violation, and it is only payment of
the penalty to the Agency which is not due until demand is made.

      Settlement  agreements should always state where and how the
penalty  should be paid and how  the check should be drafted.  See
EPA Manual on Monitoring and Enforcing Administrative and
Judicial Orders  for  additional  guidance.   In addition, settlement
agreements should not agree to  preenforcement review of accrued
stipulated penalties.

      IV.   Timing of  Enforcement Responses

      Prompt action to collect stipulated penalties due under any
consent  agreement is crucial.   If stipulated penalties are due on
demand,  it is very important such demands  be timely.  The
government encounters significant difficulty collecting
stipulated penalties if  it sits on its rights.  Delay allows
penalties to increase to levels parties may argue are
inequitable.  Sources may also  raise equitable defenses such as
laches or estoppel,  arguing that the government cannot fail to
exercise its rights  for  extended periods of time allowing
stipulated penalties to  continue to accrue and then move to
collect  unreasonably high penalties.  The  government, of course,
can and  should always rebut such claims by arguing it is simply
enforcing the decree or  agreement as agreed to by defendant, and
it not subject to such equitable defenses.  However, this
unnecessary complication should be avoided.

     A cap on the amount of stipulated penalties which can accrue
is generally not a preferred solution to this problem.  The
stipulated penalty would lose its deterrent value once the cap is
reached.   Also,  the  main goal of any enforcement action must be
compliance with  the  law  so that public health and welfare is
protected.  If consent agreement provisions are allowed to be
violated  long enough for a cap  to be reached, serious
environmental consequences may  have occurred.

     Providing that  stipulated  penalties only apply for a
specific,  reasonably short period of time in conjunction with
reserving  to the government all available enforcement responses
for violation of the consent agreement, however, solves many of
the problems mentioned above.   By its own terms, stipulated
penalties  will not accrue to levels defendants can argue are
inequitable.  The government will be in a strong position when it
pursues other enforcement options, such as contempt actions or a


                     "Retyped From The Original"

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                               -6-        OSWER Directive # 9832.21

new enforcement action to get additional penalties, because it
can argue that penalties in the original consent agreement were
not enough to deter the defendant from further violations and the
possibility of additional penalties was clearly contemplated.

     V.   Reservation of Rights

     All consent agreements must contain a provision which
reserves to the government the right to pursue any legally
available enforcement response for violation of any consent
agreement provision.  These enforcement responses would include
civil contempt proceedings and injunctive relief, and criminal
contempt proceedings for particularly egregious violations.
However, for provisions mandated by statute or regulation and
which have stipulated penalties attached, a reservation to pursue
statutory penalties is suggested but not required.  For model
language, see the October 19, 1983 Guidance for Drafting Judicial
Consent Decrees (GM-17).

     VI.  Collection of Stipulated Penalties

     The government should be prepared to collect the full amount
of stipulated penalties due under a consent agreement.  No
agreement should ever anticipate compromise by specifying
instances where it will be allowed, aside from a standard force
majeure clause.  In rare, unforeseeable circumstances, however,
the equities of a case may indicate that the government may
compromise the amount it agrees to collect.  For penalties
payable on demand, the government may also exercise prosecutorial
discretion by declining to proffer a demand for stipulated
penalties for minor violations of a consent agreement.

     It may also be appropriate to provide that stipulated
penalties for violation of interim milestones in a compliance
schedule will be forgiven if the final deadline for achieving
compliance is met.  This is clearly inappropriate where there is
significant environmental harm cause by the defendant missing the
interim deadlines.  If such a provision is used, the defendant
should generally be required to place the defendant should
generally be required to place accrued penalties in an escrow
account until compliance by the final deadline is achieved.
                     "Retyped From The Original"

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                               -7-        OSWER Directive # 9832.21

     In judicial cases, the Attorney General and his delegatees
in the Department of Justice (DOJ) have plenary prosecutorial
discretion to compromise stipulated penalties.  This authority
stems from 25 U.S.C.  516, which reserves to DOJ authority to
conduct the litigation of the United States, including cases in
which an agency of the United States is a party, and cases and
regulations broadly interpreting this authority.

     In administrative cases handled solely by EPA, stipulated
penalties should be collected pursuant tot he enforcement
authority granted to EPA under the statute governing the case.
This authority to collect and compromise stipulated penalties
varies from statute to statute.

     Separate from the process for collecting stipulated
penalties, EPA must keep track of money owed the federal
government (accounts receivable) resulting out of the activities
of the Agency, including administrative penalty assessments.  A
stipulated penalty becomes an account receivable when the
appropriate Agency official determines that a violation of a
consent agreement provision with an attached penalty has
occurred.  Under Agency financial regulations and policies for
monitoring accounts receivable, stipulated penalties due and
owing must be reported within three days to the Regional
Financial Management Office (FMO).  The FMO is responsible for
entering the stipulated penalty as an accounts receivable into
the Agency's Integrated Financial Management System (IFMS).  The
"appropriate agency official" who determines the existence of a
stipulated penalty account receivable is responsible for keeping
the FMO updated on the status of enforcement penalty collection
efforts.  A more detailed account of these procedures is included
in the Manual on Monitoring and Enforcing Administrative and
Judicial Orders.

Addressees:
     Regional Administrators
     Regions I-X

     Deputy Regional Administrators
     Regions I-X

     Regional Counsels
     Regions I-X

     E. Donald Elliott
     General Counsel
                     "Retyped From The Original"

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                               -8-         OSWER Directive #  9832.21

Headquarters Compliance Program Divisions  Directors

     Mary T. Smith, Acting Director
     Field Operations and Support Division
     Office of Mobile Sources

     David Buente, Chief
     Environmental Enforcement Section
     U.S. Department of Justice

     Associate Enforcement Counsels

     Workgroup Members
                     "Retyped From The Original"

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Section 12
Settlement

-------
SETTLEMENT
                                                 to
                                                 w
                                                 O
                                                 O
                                                 z

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            Section 12 -  Settlement - 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
mwsssss

 TITLE
 DIRECTIVE    NO.
 DATE EFFECTIVE/
 ISSUED

 SOURCE

 OTHER
 RELEVANT
 SECTIONS
                         Guidance for Drafting Judicial Consent Decrees
10/19/83

Office of Legal and Enforcement
Counsel
Civil/Criminal Actions
Guidance on Use of Alternative Dispute Resolution Techniques in Enforcement
Actions
9834.12
08/14/87

Office of the Administrator
Policy on the Use of Supplemental Enforcement Projects in EPA Settlements


02/12/91

OE

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   Section 12 - Settlement  -  Cross  References
 (Documents that are referenced under Settlement but appear in the
 Primary Category Section indicated)

 TITLE           Elevation Process for Achieving Federal Facility Compliance Under RCRA

 DIRECTIVE  NO.  9992.013
 SOURCE        OSWER
 PRIMARY        Federal Facilities
 SECTION                            	

 TITLE           Enforcement Actions Under RCRA and CERCLA at Federal Facilities

 DIRECTIVE  NO.  9992.0
 SOURCE        OSWER
 PRIMARY        Federal Facilities
 SECTION
^^gggS^ggfS^S
 TITLE           Federal Facilities Negotiations Policy

 DIRECTIVE  NO.  9992.3
 SOURCE        OSWER
 PRIMARY        Federal Facilities
 SECTION
 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 the Use of Stipulated Penalties in Hazardous Waste Consent Decrees

DIRECTIVE  NO.
SOURCE        OECM
PRIMARY        Civil/Criminal Actions
SECTION

-------
   Section 12 - Settlement -  Cross References
(Documents that are referenced under Settlement but appear in the
Primary Category Section indicated)
TITLE
Implementation of Direct Referrals for Civil Cases Beginning December 1,1983
DIRECTIVE  NO.  9891.5

SOURCE        OECM

PRIMARY        Referrals
SECTION
TITLE
Use of Stipulated Penalties in EPA Settlement Agreements
DIRECTIVE  NO.

SOURCE

PRIMARY        Referrals
SECTION

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MEMORANDUM                                        Oct. 19, 1983

SUBJECT:  Guidance for Drafting Judicial Consent Decrees

FROM:     Courtney Price
          Special Counsel for Enforcement

TO:       Assistant Administrators
          Associate Administrators for Policy
             and Resource Management
          Associate Administrator for Regional Operations
          General Counsel
          Associate Enforcement Counsels
          Regional Administrators, Regions I-X
          Regional Counsels, Regions I-X


     I am forwarding to you enforcement guidance entitled
"Guidance for Drafting Judicial Consent Decrees" for use by you
and your staff.

     This guidance was circulated in draft form to the program
AAs for review and concurrence.  I believe the guidance will be
useful to those at EPA responsible for negotiating enforcement
actions and drafting consent decrees.

     Obviously, the general guidance provided by this document
cannot deal with any one program specifically.  Therefore, the
program offices may wish to work with their respective Associate
Enforcement Counsel to develop media-specific guidance to deal
with unique issues or to provide more specific examples of
certain consent decree provisions.

     This document should be added to your copy of the General
Enforcement Policy Compendium which was distributed in March of
1983.  A revised table of contents and index for the Compendium
are also attached.

     If you have questions concerning this guidance, please
contact Janet Clark of my staff at 426-7503.

Attachments
                   -RETYPED FROM THE ORIGINAL-

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GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES
   EPA GENERAL ENFORCEMENT POLICY  # GM -17
                      UNITED STATES
                      ENVIRONMENTAL PROTECTION AGENCY

                      EFFECTIVE DATE:  	
          -RETYPED FROM THE ORIGINjj-

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THE POLICIES AND PROCEDURES ESTABLISHED IN THIS DOCUMENT ARE
INTENDED SOLELY FOR THE GUIDANCE OF GOVERNMENT PERSONNEL.  THEY
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 AGENCY RESERVES THE RIGHT TO ACT AT
VARIANCE WITH THESE POLICIES AND PROCEDURES AND TO CHANGE THEM AT
ANY TIME WITHOUT PUBLIC NOTICE.
                   -RETYPED FROM THE ORIGINAL-

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                         TABLE OF CONTENTS


 TOPIC                                                        PAGE

  I.  Introduction 	  1

 II.  "Front  End"  Standard Provisions  -  Providing  the  Factual
      and  Legal  Background for the Consent Decree   	  2

      A.   Parties  and  Cause of Action	    2
            Plaintiffs - example   	  3
            Defendants - example   	  4
            Intervenors - example  	  4

      B.   Procedural History 	  5
            Examples	  5

III.  "Transitional" Clause -  Providing  a  Lead
      into the Court's Order	6
       Example	6

 IV.  Provisions of the Court's Order   	  6

      A.   Jurisdiction and Statement of  the Claim   	  6
            Jurisdiction - example   	  ...  7
            Statement  of the Claim - example    	  7

      B.   Applicability Clause 	  7
            Example  	  7

      C.   Public Interest  Provision  	  8
            Example  	  8

      D.   Definitions  Section   	  8
            Example  	  9

      E.   Compliance Provisions  	  9

          1.  Generally   	9
                Example	:	11
                Example -  Sinter Plant   	   12

          2.  Compliance Provisions for Repeat Violators  ...   13

          3.  Performance Bonds   	14
                Example	14

      F.   Provisions Defining  Other Responsibilities
          of the Parties to  the Decree	14

          1.  Notification Provision  	   14
                Example	15

          2.  Penalties   	15
                   -RETYPED  FROM  THE  ORIGINAL-

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             a.   Generally  	15
                   Examples	15

             b.   Other Obligations  Assumed
                   by Defendants	16
                   Example	17

         3.   Dispute  Resolution Provisions   	  18

         4.   Nonwaiver Provision   	  19
               Example	19

         5.   Stipulated Penalties	20
               Example	21

         6.   Force Majeure  	23
               Example	25

         7.   Public Comment  on  the  Decree	25
               Example  .	26

         8.   Retention of  Jurisdiction   	  26
               Example	26

         9.   Confidentiality of Documents  	  26
               Example	-	27

        10.   Modification  of the Consent Decree	  .  27
               Example	27

        11.   Termination of  the Decree  and Satisfaction ...  27
               Examples   	28

        12.   Costs of the  Action   .	29
               Example	29

        13.   Execution of  the Decree    	29


APPENDIX A - Consent Decree Checklist  	  30

APPENDIX B - Sample Consent Decrees 	
                   -RETYPED FROM THE ORIGINAL-

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I.    Introduction
     The purpose of this document is to provide guidance on
provisions which EPA should include when drafting a settlement
agreement covering a civil enforcement action for which the
Federal government has decided that judicial remedies are
appropriate.  The document explains the appropriate use of
various standard provisions and provides sample language for
these provisions.
     Each judicial consent decree negotiated by EPA differs,
because each deals with a different noncompliance problem and
embodies the results of a separate negotiating process.
Provisions contained in decrees must differ to reflect the
agreement resulting from these negotiations.  Most consent
decrees, however, also must contain certain relatively standard
provisions to address matters which are relevant in virtually all
enforcement actions.  Use of this standard language will lessen
the review necessary of the resulting draft consent decree.  Of
course, local court rules may also mandate specific forms which
must be followed or provisions which must be included in
settlement agreements.
     The settlement of a potential civil judicial action should
almost always result in a negotiated consent decree.
Occasionally, in the past, EPA has entered into voluntary
agreements to settle some enforcement actions.  Those EPA
officials negotiating settlements in EPA enforcement actions are
not encouraged to use such voluntary agreements and they should
be limited to unique situations, for example, in cases in which
no prospective action is required from the defendant.

                   -RETYPED FROM THE ORIGINAL-

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                               -2-

     A consent decree may operate as a release from liability for

the defendant for the violations addressed by the decree.  For

this reason, the decree must be narrowly drawn and address only

the allegations made in the complaint.  The consent decree should

release the defendant from liability only after the defendant has

complied with all the terms of the decree.  In all cases,

settlements must be carefully drafted.  Many parties may be

involved as defendants or potential defendants, particularly in

hazardous wastes cases; therefore, you should be certain that

non-settling defendants or potential defendants are not released

from liability because EPA has settled with one or some of the

defendants.  (See, Nonwaiver Provision, page 20).

     The guidance is meant to apply generally to all EPA media

areas and does not attempt to discuss unique issues limited to a

specific media.  Therefore, EPA attorneys drafting consent

decrees should consult any applicable media-specific policies for

guidance in dealing with these issues.  You should follow

separately issued guidance for procedures to sue in conducting

negotiations and for the review and approval of proposed consent

decrees.



II.  "Front End" Standard Provisions - Providing the Factual and
     Legal Background for the Consent Decree

     A.   Parties and Cause of Action

     It is obvious that each consent decree must identify the

parties and the cause of action.   The plaintiff in every action

is the United States of America,  on behalf of the United States

Environmental Protection Agency.   Identify the cause of action by

                   -RETYPED FROM THE ORIGINAL-

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                               -3-

 specifying  the  legal  authorities allegedly violated by the

 defendant and by briefly describing those actions by the

 defendant which led to the  filing of the complaint.  The decree

 should make some reference  to the complaint which has been or

 will be  filed to demonstrate the decree's relationship to pending

 litigation.

                             EXAMPLES

         1.  Plaintiff, United States of America, on behalf of the
             United States Environmental Protection Agency (EPA),
             has filed the complaint herein on    (date)     This
             complaint alleges that the defendant violated the
             Clean Air Act,  42 U.S.C. 7401 et sea,  and the
             	 State Implementation Plan (the SIP) adopted
             under the Clean Air Act by the following actions:

         2.  Plaintiff, United States of America, on behalf of the
             United States Environmental Protection Agency (EPA),
             filed the complaint herein on   (date)     This
             complaint alleges that the defendant violated the
             Clean Water Act, 33 U.S.C. 1251 et seq.  and
             National  Pollutant Discharge Elimination System
             (NPDES) Permit  No.  	 by the following actions:


     Every  consent decree should identify the defendant in terms

 of the defendant's status as an individual, corporate entity,

 partnership, etc.  This section should give enough factual

 information  to  establish the court's personal jurisdiction over

 the defendant and to  establish venue.  In some situations, the

 defendant will  own or operate several facilities.  Facilities

 covered by this decree should be specified with particularity.

 If the decree fails to identify precisely those facilities or

 sources which are in  violation of the relevant statute(s) and for

which relief is provided in the decree, there may be some

question as to the scope of the decree.



                   -RETYPED FROM THE ORIGINAL-

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                               -4-

                             EXAMPLE

         Defendant,  XYZ Steel Corporation (Defendant),  is  a
         Delaware corporation,  registered to do business in the
         Commonwealth of Virginia with its principal  place of
         business at 6004 Main Street,  Alexandria,  Virginia.


         Defendant owns and operates an integrated  steel-making
         facility known as the "Karefull Works",  in Karefull
         Hills,  Smith County, in the Southern District  of
         Virginia.  Defendant owns and operates various
         facilities at the Karefull Works,  including  among
         others,  a sinter plant, comprised of two sintering
         lines;  an open hearth furnace; three blast furnaces; an
         electric arc fan shop,  comprised of two electric  arc
         furnaces; and two coke oven batteries.   All  of the above
         facilities are alleged by the Plaintiff to be  sources of
         air pollution operating in violation of the  State
         Implementation Plan and are covered by this  decree.


     In addition to the plaintiff and defendant(s), any

intervenors in the suit  (often affected States) should be

identified as parties to the decree.  Making the intervenors

parties to the decree is necessary for full settlement and can

give them the ability to enforce the decree's provisions.

Binding intervenors to the decree's provision also provides the

defendant with complete information as to the extent  of its

liability.  If motions to intervene are pending, those, as well

as any other outstanding motions, should be resolved  by the

decree.

                             EXAMPLE

         The State of Ohio has moved to intervene as  Plaintiff.
         The Commonwealth of Pennsylvania has also  moved to
         intervene as Plaintiff to protect its interest insofar
         as resolution of the allegations of the complaint affect
         water quality in the Mahoning River at the Ohio-
         Pennsylvania State line.   The motions to intervene are
         hereby granted.
                   -RETYPED FROM THE ORIGINAL-

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                               -5-

     B.  Procedural History

         The decree should include provisions  regarding

procedural history if the defendant in the case at bar has been

involved in prior relevant enforcement proceedings.  It is

helpful, in these cases, to specify the relationship between this

decree and previous decrees and orders in effect with regard to

this defendant.  The decree you are drafting may abrogate or add

to the provisions of a previous decree or order.  If so,  you

should detail these facts in the decree.  In some instances, the

previous decree or order may have resolved violations at the same

facility which are so similar to those presently being addressed

that the existence of two decrees would be confusing.  A new

decree which incorporates those provisions of the prior decree

still in effect may clarify the obligations of the defendant.

Finally, if the violation of an administrative order preceded

this judicial action, you should note that fact in this section

of the decree.

                            EXAMPLES

         1.   Plaintiff and Defendant entered into a Consent
             Decree to resolve a prior case, Civil Action No.
             	,  and the Defendant has fully and
             satisfactorily complied with that prior Decree.

         2.   Plaintiff and Defendant entered into a Consent
             Decree,  to resolve violations of  the Clean Air Act
             at defendant's 	 facility.   That Decree
             retains full  force and effect.

         3.   Plaintiff issued  an administrative order pursuant to
             309  of the Clean Water Act to the Defendant on
             (date).   The  Defendant has failed to comply  with the
             terms of this administrative order.
                   -RETYPED FROM THE ORIGINAL-

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                               -6-

III. "Transitional" Clause - Providing a Lead into the Court's


     Traditionally, every consent decree contains a transitional

clause which signals the end of the introductory portions of the

decree and the beginning of the Court's order.

     You will most likely draft and execute a consent decree

which is the result of a settlement before the introduction of

any evidence or the finding of any facts.  In these instances, it

is inappropriate to recite that these events took place.

     In some instances, settlement may be reached without the

defendant admitting any facts or points of law and refusing to

admit any liability.  It is appropriate to use this clause to

indicate this fact.

                             EXAMPLE

         There has not been a trial on any issue of fact or law
         in this case.   However,  the parties wish to settle the
         dispute described above.   Accordingly,  they have agreed
         to the following order through their attorneys and
         authorized officials.

         THEREFORE, it is ORDERED as follows:

     However, if the defendant has admitted certain facts, these

should be explicitly noted in the decree.

IV.  Provisions of the Court's Order

     A.  Jurisdiction and Statement of the Claim

         Every decree must contain a provision reciting that the

court has subject matter, and personal jurisdiction.  The decree

should recite the statutory authority for the court's

jurisdiction.  This is particularly important if the defendant

disputed the court's jurisdiction.  The following example states



                   -RETYPED FROM THE ORIGINAL-

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                               ..._*7

sthe fact of the court's jurisdiction and provides a waiver by

the defendant of any objection to the court's jurisdiction.

                             EXAMPLE

         This Court has jurisdiction over the subject matter and
         over the parties pursuant to 28 U.S.C.  1345; 42 U.S.C.
         7603 and 42 U.S.C. 6973.   The Defendant waives any
         objections it may have to the jurisdiction of the Court.

     Additionally, Federal Rule of Civil Procedure 8(a) requires

that a complaint state a claim for which relief can be granted.

Obviously, courts cannot grant relief where no cause of action

will lie.  It is essential to state in the decree that the

complaint met this requirement, e.g., "The Complaint filed herein

states a claim for which relief can be granted."  Such a

statement does not constitute an admission of liability by the

defendant, but only that the allegations of the complaint, if

proved, would support the judgment.

     B.  Applicability Clause

         The applicability clause defines those  to whom the

decree applies.  It binds the successors in interest to both the

plaintiff and the defendant, thus providing for those instances

when ownership of facilities or sources may change after entry of

the decree.  The language used parallels the language of Federal

Rule of Civil Procedure 65(d) since that rule sets out the scope

of injunctions.

                             EXAMPLE

         The provisions of this  consent  decree shall  apply to and
         be binding upon the parties  to  this  action,  their
         officers,  agents,  servants,  employees and successors.
         Defendant  shall give notice  of  this  consent  decree to
         any successors in interest prior to  transfer of
         ownership  and  shall simultaneously verify to plaintiff
         that defendant has  given such notice.

                   -RETYPED FROM THE ORIGINAL-

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                               -8-


     In some cases, particularly hazardous waste site cases, the

decree may include a further provision which will ensure that

subsequent purchasers of the property have notice that the site

was or is a hazardous waste site and that a consent decree exists

which affects the property.  For example, the decree could

provide that it be recorded with the local office having

responsibility for the recording of deeds and other such

instruments.  Alternatively, the defendant could agree to note

the decree on the deed to the property.

     C.  Public Interest Provision

         All consent decrees should contain a provision that the

parties agree and the Court has found that the decree is in the

public interest.  Such a statement by the parties and a finding

by the Court makes it more difficult for others to later attack

the decree's terms.  (This is especially true for those decrees

which are subject to public comment.  See the discussion at

page 27.)

                             EXAMPLE   .

             The parties agree and the Court finds that
             settlement of these matters without further
             litigation is in the public interest and that the
             entry of this decree is the most appropriate means
             of resolving these matters.

     D.  Definitions Section

         Consent decrees which contain many technical or

potentially ambiguous terms, or define terms according to

agreement reached between the parties should contain a separate

section listing those definitions.  This section can also give

definitions for potentially misleading terms.

                   -RETYPED FROM THE ORIGINAL-

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                               -9-

     Of course, definitions given must conform with definitions

given in statutes and regulations.  Do not attempt to redefine

terms that have specific legal definitions; however, examples or

illustrations of these terms may be appropriate.

     For consent decrees that are very short and limited in scope

a separate section devoted to definitions may be unnecessary.

Terms defined in specific decrees will, of course, vary.  The

following example demonstrates one form of such a section.

                             EXAMPLE

             The following terms used in this consent decree
             shall  be defined as follows:

             a.   The term "days" as used herein shall mean
                 calendar days.

             b.   The term "permanently cease operation",  when
                 used in such phrases as "permanently cease
                 operation of the six (6)  open hearth furnaces",
                 shall mean the  complete cessation of production
                 at the relevant source and the termination of
                 all power or fuel to the source.


     E.  Compliance Provisions

         1.   Generally

         Consent decrees must require compliance with applicable

statutes or regulations and commit the defendant to a particular

remedial course of action by a date certain.  Consent decrees

negotiated by EPA contain compliance provisions whenever it is

necessary for defendant to take remedial action to cure or

prevent violations unless no injunctive relief is necessary to

obtain compliance with applicable law  (i.e., penalties only

case).
                   -RETYPED FROM THE ORIGINAL-

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                               -10-
     Compliance provisions set out what steps the defendant must
take to remedy violations of various environmental statutes and
usually define methods EPA can use to determine the defendant's
success in meeting these provisions.  The specific compliance
provisions of each decree will vary depending on the facts of the
specific case and the media involved.  Drafters should consult
media-specific policies for guidance.
     Compliance provisions should specify the standard or level
of performance which a source ultimately must demonstrate it has
met.  Other than interim standards to be attained until final
compliance is achieved, a decree should not set a standard less
stringent than that required by applicable law because a decree
is not a substitute for regulatory or statutory change.
     You should avoid including compliance provisions which
require the defendant to comply solely by installing certain
equipment, unless specific technical standards are required by
applicable regulations.  Such provisions should require
compliance with the appropriate standard as well.  Such a
provision may allow the defendant to argue that installation of
the equipment fulfills the requirements of the consent decree
even if the equipment fails to achieve compliance with statutes
and regulations.  You may include provisions which require the
installation of necessary control technology.  However, the
provisions must be clear that installation of specific equipment
does not relieve the defendant from the responsibility for
                   -RETYPED FROM THE ORIGINAL-

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                               -11-

 achieving  and maintaining  compliance with the applicable laws and

 regulations.17

     An  important part of  the compliance section of a decree is

 the  inclusion of provisions which provide a means of monitoring

 the  defendant's performance.  Depending upon the performance

 standard required by the decree, monitoring provisions might, for

 example, require periodic  tests or reports by the defendant.

 Test protocols may be set  out in technical appendices to the

 decree.  Generally, in choosing monitoring provisions you should

 consider such factors as the impact on Agency resources of

 different  monitoring requirements and the ease with which the

 Agency can proceed with monitoring, as well as the need for some

 type of  Federal oversight  to ensure that the defendant is

 addressing noncompliance problems adequately.  For example, you

 will want  to provide for site entry and access and document

 review by  the Agency in the decree.  You should not waive the

 Agency's right to assert or utilize its statutory authorities,

 such as  right of entry or  document production.

                             EXAMPLE

             Any authorized representative or contractor of U.S.
             EPA or Intervenors,  upon presentation of his
             credentials,  may enter upon the premises of the
             Karefull Works at any time for the  purpose of
             monitoring compliance with the provisions of the
             Consent Decree.
-' Under some statutes, CERCLA, for example, standards for
clean-up are rarely available.  When the decree involves future
clean-up activities rather than cash settlements, the decree may
usefully specify continuing State/EPA responsibilities for
determining future clean-up activity.

                   -RETYPED FROM THE ORIGINAL-

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                              -12-

     The decree should specify timetables or schedules for

achieving compliance requiring the greatest degree of remedial

action as quickly as possible.  Such timetables are particularly

relevant in decrees which mandate construction the defendant must

undertake or cleanup the defendant must accomplish.  These

schedules should include interim dates so that the Agency can

monitor the defendant's progress toward compliance.

                             EXAMPLE

   III.   Sinter Plant

     A.   Applicable Emissions Limitations

         1.   Emissions from the  sinter plant at Defendant's
             Karefull Works shall comply with the emission
             limitations in 25 Pa.   Code 123.41,  123.3  and
             123.1  as follows:

             a.   Visible emissions from any sinter plant  stack
                 shall not  equal or  exceed 20% opacity for a
                 period or  periods,aggregating more than  three
                 (3)  minutes in  any  sixty (60)  minute period and
                 shall not  equal or  exceed 60% at any time,  as
                 set forth  in 25 Pa.   Code 123.41.

             b.   Visible emissions from any part of sinter plant
                 operations shall not  equal or exceed 20% opacity
                 for a period of periods aggregating more than
                 three (3)  minutes in  any sixty (60)  minute
                 period and shall not  equal or exceed 60%,  as set
                 forth in 25 Pa.   Code 123.41.

             c.   Mass emissions  from the sinter plant windboxes
                 and from all gas cleaning devices installed to
                 control emissions at  the sinter plant shall not
                 exceed 	 grains (filterable)  per dry
                 standard cubic  foot (the applicable emission
                 limitation).

             d.   Fugitive emissions  from any source of such
                 emissions  at the sinter plant shall not  exceed
                 the emissions limitation set forth in 25 Pa.
                 Code 123.1

         2.   The air pollution control equipment described below
             shall  be installed  in accordance with the following
             schedule:

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                               -13-

             Submit permit application November 1,  1980 to DER
             and to EPA for approval

            Issue purchase orders          May 1,  1981

            Commence installation          November 1,  1981

            Complete installation          September 1,  1982
            and start up

            Achieve and demonstrate        November 1,  1982
            compliance

     B. Sinter Plant Compliance Program

        1.  In order to bring Defendant's sinter plant into
            compliance with the requirements  specified in
            paragraph III.A.I.e.  above, Defendant shall install
            the following air pollution control equipment on
            sintering line #1.:

            a.  Defendant shall install an air pollution control
                device, which complies with the emission
                limitation of paragraph IIT.A.l.c.   on #1 sinter
                plant windbox to control sinter plant windbox
                stack emissions.

            b.  Defendant shall install a scrubber or a baghouse
                (or separate baghouse, as appropriate) on #1
                sinter line and appropriate ductwork to replace
                the existing cyclone for control of emissions
                from the discharge end.of #1  sinter line.

            c.  Installation of this equipment in no way relieves
                the defendant of the requirement of achieving and
                maintaining compliance with the emission
                limitations set out in paragraph III.A.I.

        2.  Compliance Provisions for Repeat  Violators

     When negotiating with a source with a long history of

repeated violations negotiators should consider including more

stringent, compliance monitoring provisions in resulting consent

decrees.  The decree could include provisions for more frequent

monitoring and testing by the source to ensure continued future

compliance or opportunities for more EPA monitoring and testing

in addition to self-monitoring by the source.


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                               -14-

         2.   Performance Bonds

     EPA may require performance bonds from a defendant to ensure

that actions required by the decree  (i.e., clean-up of a site,

installation of pollution control equipment) are actually com-

pleted.  The amount of any such bond will vary from case to case.

The provision should state those circumstances under which the

bond becomes payable.  The bond itself is a separate instrument

which sets out more fully those circumstances under which the

bond is  forfeited and those conditions under which the bond is

released, as well as any sureties guaranteeing the bond.

Therefore, the bond instrument itself should be closely reviewed

for adequacy.

                             EXAMPLE

             The defendant shall comply with the following
             provisions at Blast Furnaces 1, 2,  3 and 4.

             a.  Defendant shall install an emission suppression
                system on furnaces 1 and 4.

                  

             c.  Defendant has posted a bond payable to United
                States Treasury in the amount of $1,000,000 for
                each of blast furnaces 1 and 4  payable
                immediately and in full if defendant fails to
                certify installation of an emission suppression
                system by December 31,  1982,  and demonstration of
                compliance with the above emission limitation by
                December 31,  1982.


     F. Provisions Defining Other Responsibilities of the Parties
        to the Decree

        1. Notification Provision

           Various provisions in consent decrees may require

notification of different events to the plaintiff,  defendant -

and/or the court.  When this is the case, it is appropriate to

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                               -15-

 include a provision setting out to whom such notices should be

 given.

                             EXAMPLE

           Whenever, under the terms of this decree, notice is
           required to be given by one party to another party
           and/or  the court, such notice shall be directed to
           the  individuals specified below at the addresses
           given,  unless those individuals or their successors
           give notice in writing to the other parties that
           another individual has been designated to receive
           such communications.

                (appropriate names and addresses)


        2.  Penalties

           a. Generally

     Often, the defendant will be liable for a civil penalty for

 its violation of the statute.  Some decrees may contain only

 penalty provisions in situations in which some sanctions are

 appropriate to  respond to past violations and to deter future

 misconduct, yet compliance provisions are unnecessary because the

 defendant has achieved compliance before the execution of the

 decree.  The decree should state that the payment is a penalty so

 the defendant does not obtain a tax advantage from its payment.

                             EXAMPLE

           Defendant shall pay a civil penalty in the amount of
           	 as a result of the defendant's violation
           of 	 with regard to facilities which are the
           subject of this decree.

     The decree should also state terms for payment of any

penalty.  Normally, payment should be in a lump sum within a

short time from the entry of the decree.   Installment payments

may be allowed  in  the following circumstances:



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                              -16-

     -  if the defendant can demonstrate an inability both to pay

        the lump sum penalty and to finance remedial action or

        continue in operations;  and,

        if there is no reason to believe that further payments

        will not be forthcoming.

If the defendant agrees to pay by installments,  the decree can

provide for interest at the appropriate judgment interest rate.

     Patient provisions should recite the amount of the payment,

to whom paid, how payment is made and when payment is due.

Normally, the provisions should require defendants to submit a

cashier's check payable to "Treasurer, United States of America"

to the appropriate Regional Counsel.

                             EXAMPLE

           Defendants agree to pay a civil penalty in the total
           sum of ONE MILLION, THREE HUNDRED AND FIFTY THOUSAND
           DOLLARS ($1,350,000).  The terms of this paragraph do
           not limit remedies available for violation of this
           decree.  Payment of ONE MILLION DOLLARS ($1,000,000)
           of such penalty shall be made within five days of the
           entry of this decree, by cashiers check payable to
           "Treasurer, United States of America", delivered to
           the Regional Counsel, USEPA, Region V, 230 South
           Dearborn Street, Chicago, Illinois 60640.

           The remaining THREE HUNDRED AND FIFTY THOUSAND
           DOLLARS ($350,000) of such penalty shall be paid in
           the same manner, either by December 31, 1982, in
           which event there will be no interest charge, or by
           June 30, 1984, in which event interest shall be
           charged at the rate provided in 28 U.S.C.A.  1961,
           for the time period between the date of entry of this
           decree and the date of payment.

              b.  Other Obligations Assumed by Defendants

     During negotiations, defendants may offer to take certain

action in order to offset or in lieu of a cash penalty.  For

example, the defendant may offer to install extra pollution


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                               -17-

control equipment which is not necessary to meet legal

requirements.

     If EPA has agreed to accept lesser amounts in settlement

because of extra pollution control activity by the defendant,

drafters of consent decrees must be sure that this agreement is

explicitly noted in the decree, and that the decree requires the

defendant to operate and maintain any "extra" equipment.  Consent

decrees have precedential value, and any such trade-off between

the Federal government and defendants must be readily apparent to

readers of the decree.  This provision will also ensure that the

defendant is bound by its agreement to undertake these actions.

You should refer to applicable civil penalty policies for

guidance in evaluating credit-worthy activities and their

appropriate use.

     An effective means of ensuring the defendant's performance -

of these actions is to include a provision which defers

collection of some or all of a penalty amount until performance

is completed, so long as the amount ultimately paid is acceptable

under any applicable penalty policy.  The provision could then

excuse payment of the deferred portion of the penalty entirely

when performance has been satisfactorily completed.

                             EXAMPLE

        The payment of the penalty amount due on (date) shall be
        excused by the plaintiff if the plaintiff finds that the
        following conditions have been met.

        a)  By   (date) . defendant shall install and operate a
        coke-side shed (as described in paragraph I.B.l.b.) on
        each battery to control pushing emissions.  Each shed
        shall be evacuated contiguously to capture and clean
        emissions from both the pushing operation and all door
        leaks.

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                               -18-

        b) Defendant shall achieve, maintain and demonstrate
        compliance with the emission limitation set forth in
        paragraph I.A.l.d.  with respect to mass emissions
        attributable to coke oven pushing operations by  (date) .
        Defendant shall achieve and demonstrate compliance with
        the emissions limitation set forth in 25 Pa.  Code
        123.44(a)(3) with respect to door emissions under the
        shed by   (date) .

        c) Defendant shall certify completion of the conditions
        listed in subparagraphs (a) and (b) above to the
        plaintiff by certified letter.  This notification should
        be sent by U.S.  Mail, return receipt requested to (name.
        title and address) by  ( date ).


        3.  Dispute Resolution Provision

     Disputes may arise between EPA and the defendant after

execution of the decree as to the defendant's compliance with the

terms of the decree.  The decree can provide its own mechnism for

resolving some or all of these potential disputes by the parties

before resorting to the court for resolution of the dispute.

Dispute resolution by the parties should be limited to a specific

amount of time.  Such a dispute resolution provision will allow

EPA to avoid resolution of each dispute by the court.  Advantages

of such a provision include:

     a) speedier resolution of disputes because resort to the

        court may not be necessary; and

     b) technical disputes can be resolved by those with the

        requisite expertise, thus avoiding the need to educate

        the court before evidence can be evaluated.

     A number of dispute resolution devices can be used in

decrees.  For example:
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                               -19-

     a)  EPA  and the defendant  could agree to negotiate for a

         limited period of time any such dispute or specified

         disputes which arise.

     b)  The  parties could agree to submit the matter to

         arbitration.  Again, a limited time period should be

         specified during which the parties could submit the

         matter to arbitration.  A specific time limit would be

         appropriate for the arbitration process as well.

     c)  Failing resolution by  the parties, the decree should

         provide for application to the court to resolve

         disputes.  If the matter is submitted to the court for

         resolution, the decree should provide that the defendant

         bears the burden of proof.



         4.  Nonwaiver Provision

     At times a set of actions by a defendant may violate

separate statutory requirements.   One violation may be settled

while other claims are litigated.   In all decrees,  it is proper

to state that the decree does not affect the defendant's

liability with regard to other statutes or regulations.   The

following sample is acceptable.

                             EXAMPLE

            This consent decree in no way affects or relieves
            defendant of.responsibility to comply with any other
            State,  Federal or local law or regulation.

     If a consent decree settles a portion of a dispute under a

statute, the consent decree should clearly indicate that other

aspects of the case have not been settled.  For example,  in some


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                              -20-
hazardous waste cases an agreement may be reached dealing with
surface clean-up of a site but issues on ground water
contamination may be reserved for later resolution.  These
partial consent decrees should clearly state that the defendant
is not fully released from liability.
     Various statutes grant EPA specific powers to deal with
emergency situations.  The decree may specify that the Agency
retains the power to act in these situations.
                             EXAMPLE
            This decree in no way affects the ability of EPA to
            bring an action pursuant to Section 303 of the Act,
            42 U.S.C.  7603.
     Additionally, you may want to include a provision to
preserve the government's cause of action against third parties
who are not parties to the suit and who may be responsible along
with the named defendant(s).
                             EXAMPLE
            This decree does not limit or affect the rights of
            the defendants or of the United States as against any
            third parties.
        5.  Stipulated Penalties
     Most decrees should contain provisions for stipulated
penalties.  These provisions encourage compliance and simplify
enforcement by providing a significant, clearly defined sanction
in the event the defendant violates a provision of the decree.
Stipulated penalties are appropriate for violation of the
following types of provisions:
              a)  final and  interim compliance requirements,
              b)  reporting, testing or monitoring requirements,

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                              -21-

              c)  any other performance requirements (including

                  requirements to pay civil penalties).

     Provisions for stipulated penalties should include the

amount of the penalty, how the penalty should be paid,  and to

whom the penalty should be paid.  To set the amount of  a proposed

stipulated penalty,  you should be guided by applicable  statutes,

regulations and EPA policies.  Normally, defendants should pay

stipulated penalties by delivering a cashiers check made payable

to "Treasurer United States of America" to the appropriate

Regional Counsel.

     The decree may also provide that the court issuing the

decree will resolve disputes between the parties as to  liability

for and the amount of an assessed stipulated penalty.  The

provision should also make clear that stipulated penalties are

not the plaintiff's exclusive remedy for the defendant's

violation of the decree and that the plaintiff reserves its right

to seek injunctive relief.

                             EXAMPLE

        Failure by the defendant to achieve full compliance as
        required by Paragraphs IV.A.I through 9, except as
        excused pursuant to Paragraph V herein  (force majeure),
        shall require defendant to pay a stipulated penalty of
        $7,500 per day for each day that such failure continues.

        Stipulated penalties are payable upon demand as follows:

        Cashiers check payable to:  Treasurer, United States of
                                    America

        Address for payment:        USEPA,  Region III
                                    Curtis Building, Second Floor
                                    6th and Walnut Streets
                                    Philadelphia, PA 19106
                                    Attn:   Regional Counsel



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                               -22-

        Any dispute with respect to defendant's liability for a
        stipulated penalty shall be resolved by this court.  The
        provisions of this paragraph shall not be construed to
        limit any other remedies, including but not limited to
        institution of proceedings for civil or criminal
        contempt, available to plaintiff or intervenors for
        violations of this consent decree or any other provision
        of law.

     You may want to provide for stipulated penalties which

escalate based on the number of days the source is not in

compliance or on the amount of excess emissions or effluents

discharged by the source in violation of the decree.  For

example, for days 1 through 30 of violation the stipulated

penalty could be $1000 per day.  This could increase to $2000 per

day for days 30 through 60 and so on.  Similarly,  excess

discharges or emissions could be expressed as a percentage over

the daily limitation and a scale could be devised for these as

well.  For example, discharges are less than 10% over the daily

discharge limitation would be subject to a stipulated penalty of

$500, from 10% to 25%, $100 and so forth.

     Another approach which may aid the negotiation process is to

use a stipulated penalties provision which allows the payment of

penalties for interim violations into some kind of escrow

account.  The clause could provide for the return of these

payments to the defendant if timely final compliance is achieved

and the terms of the consent decree are satisfied.   If such an

escrow account arrangement is used, EPA staff should review the

escrow agreement itself.   The agreement should clearly give the

escrow agent the authority to turn the fund over to EPA in the

event of noncompliance.



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                               -23-
     6.  Force Majeure
     The purpose of a force majeure clause is to excuse the
defendant's performance pursuant.to the decree because of
circumstances beyond the defendant's control (e.g., acts of God).
Therefore, such a clause should not be included in a decree -
unless the defendant insists on its inclusion.
     Although a force majeure clause is something the defendant -
may want in the decree, it normally will be to EPA's negotiating
advantage if Agency representatives draft the clause.  Generally,
the following elements should be included in drafting such a
clause.
     a)  The clause must clearly limit excused delays in
performance to those events which are beyond the control of the
defendant.  The decree may define specifically which circum-
stances would trigger the force majeure clause.  Arriving at a
list of such circumstances, however, may consume a good deal of
negotiating time.  For this reason, the term "circumstances
beyond the control of the defendant" is acceptable.  The language
in the example (circumstances entirely beyond the control of the
defendant) is better.
     The clause should not allow the defendant to claim economic
hardship or increased costs as circumstances beyond defendant's
control which trigger the force majeure clause.
     b)  The clause should clearly place the burden on the
defendant to prove that the events causing the delay are based on
circumstances beyond its control.  The burden should be one
satisfied by clear and convincing evidence,  if possible.

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                              -24-
     c)  The clause should include a provision requiring
notification within a time certain by the defendant to the
plaintiff and the court of any delay or anticipated delay the
defendant claims triggers the force majeure clause.  This
notification should include the cause of the delay and the ex-
pected duration of the delay.  Failure to give notice of a
particular problem should preclude the defendant from invoking
the force majeure provision based on that problem.
     d)  The clause should provide that the defendant take
measures to prevent or minimize the delay to the maximum extent
reasonable and to propose a time when the preventive measures
will be fully implemented.
     e)  The clause should state that events triggering the fore
majeure clause do not automatically excuse the defendant from
complying with the terms of the decree.  Ultimate compliance
should occur as quickly as possible, consistent with the decree's
terms and any extensions granted because of the force majeure
clause.
     f)  Finally,  the clause should provide some mechanism for
dispute resolution, since there may be instances in which EPA and
the defendant cannot agree that a specific delay is caused by
circumstances beyond the defendant's control.  (See the
discussion of dispute resolution provisions on page 19.)  It is
acceptable to allow the defendant to submit such disputes to the
court for resolution if agreement cannot be reached between the
parties.
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                              -25-

                             EXAMPLE

         a)  If any event occurs which causes or may cause delays
            in the achievement of compliance at Defendant's
            facilities as provided in this decree, Defendant
            shall notify the Court, the Plaintiff and
            Intervenors, in writing within 20 days of the delay
            or anticipated delay, as applicable.  The notice
            shall describe in detail the anticipated length of
            the delay, the precise cause or causes of the delay,
            the measures taken and to be taken by Defendant to
            prevent or minimize the delay, and the timetable by
            which those measures will be implemented.  The
            Defendant shall adopt all reasonable measures to
            avoid or minimize any such delay.  Failure by
            Defendant to comply with the notice requirements of
            this paragraph shall render this paragraph void and
            of no effect as to the particular incident involved
            and constitute a waiver of the defendant's right to
            request an extension of its obligation under this
            Decree based on this incident.

         b)  If the parties agree that the delay or anticipated
            delay in compliance with this decree has been or
            will be caused by circumstances entirely beyond the
            control of Defendant, the time for performance
            hereunder may be extended for a period no longer
            than the delay resulting from such circumstances.
            In such event, the parties shall stipulate to such
            extension of time and so inform the Court,  in the
            event the parties cannot agree, any party may submit
            the matter to this court for resolution.

         c)  The burden of proving that any delay is caused by
            circumstances entirely beyond the control of the
            Defendant shall rest with the Defendant.  Increased
            costs or expenses associated with the implementation
            of actions called for by this Decree shall not, in
            any event, be a basis for changes in this decree or
            extensions of time under paragraph b.  Delay in
            achievement of one interim step shall not
            necessarily justify or excuse delay in achievement
            of subsequent steps.

     7.  Public Comment on the Decree

     A Department of Justice regulation calls for a thirty day

public comment period on consent decrees which enjoin the dis-

charge of pollutants.   (See,  28 CFR 50.7)   A provision should be

included in these decrees which acknowledges this requirement.
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                               -26-

                             EXAMPLE

             The parties  agree  and  acknowledge that  final
             approval  and entry of  this proposed  decree  is
             subject to the  requirements  of  28 CFR 50.7.  That
             regulation provides that  notice of the  proposed
             consent decree  be  given to the  public and that the
             public shall have  at least thirty days  to make any
             comments.


     In the  usual  case,  the proposed consent decree is executed .

by the parties  and forwarded to the court with a cover letter

advising the court that  the decree should not be signed by the

Judge or entered until the thirty day comment period has passed.

When the comment period  has passed, the court is advised either

that no adverse comments were received or is advised of comments

received and the EPA/DOJ responses to the comments.   The court is

then requested to  sign and enter the decree.

     8.  Retention of Jurisdiction

     The decree should include a provision which recites that the

court will retain  jurisdiction of the case in order to enforce

the decree and resolve disputes under the decree not specifically

provided for elsewhere.

                             EXAMPLE

             The Court  shall retain jurisdiction  to modify and
             enforce the  terms and conditions of  this decree and
             to  resolve disputes arising hereunder as may be
             necessary  or appropriate for the construction or
             execution  of this decree.


     9.   Confidentiality  of  Documents

     In some actions,  defendant will claim that documents

provided by  it are confidential in nature.   In these cases,  the
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                               -27-

decree should provide that EPA regulations will control with

regard to such documents.

                             EXAMPLE

             All  information  and documents submitted by
             defendants  to EPA/State pursuant to this decree
             shall  be subject to public  inspection unless
             identified  and deemed  confidential by defendants  in
             conformance with 40 CFR Part 2.  The information  and
             documents so identified as  confidential will be
             disclosed only in  accordance with EPA and State
             regulations.

     10.  Modification of the  Consent Decree

     Consent decrees entered by the court are court orders and as

such may not be modified without the court's approval.

Currently, consent decrees are executed on EPA's behalf by the

Special Counsel for Enforcement or her delegatee.   Therefore,

modifications of decrees should be similarly executed.   A

provision in the decree reciting these principles will help to

make clear to defendants what they must do in order to modify the

decree.

                             EXAMPLE

              Any modification of this consent decree must be in
              writing and approved by the Court.   Any such
              written modification must be executed on EPA's
              behalf by the Special Counsel for Enforcement or
              her delegatee or successor.

    11.  Termination of  the Decree  and Satisfaction

     Since the defendant has agreed to settle the case and avoid

trial,  it is appropriate that EPA agree to a termination of the

consent decree after the defendant has complied with all consent

decree provisions.   This provision is most appropriately placed

at the conclusion of the decree or in the introductory 'front

end' provisions of the decree.

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                              -28-

     This termination may be automatic upon completion of the

terms of the decree.  However, a provision calling for a motion

for termination by the plaintiff is preferred.   This required

action by EPA would aid in eliminating disputes as to whether

compliance was achieved or not and as to when the consent decree

terminated.  The decree may provide for a time lag between the

time the defendant comes into compliance with the decree and the

termination of the decree.  This time lag ensures that the

defendant continues to comply for a specified period of time.

When termination is delayed in this manner, the time period

specified is at least 180 days in most instances.

                             EXAMPLE

              The defendant must demonstrate to the plaintiff's
              satisfaction that the defendant has complied with
              all of the terms of the decree.  One hundred and
              eighty days (180)  after such a showing by the
              defendant, the plaintiff agrees to move the court
              to terminate the decree.

     Additionally, during negotiations the defendant may insist

on a provision which recites that the decree constitutes a full

settlement of the action contained in the complaint and that this

settlement bars the plaintiff from any other action against the

defendant based on those violations.  Such a clause should not be

included in a decree unless the defendant specifically insists on

its inclusion.  These clauses should be narrowly drawn so that it

is clear that only the specific action in the complaint is

covered.  Also, cases with multiple defendants or potential

defendants require extra care so that these other parties are not

released from liability when that is not intended.



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                              -29-

                             EXAMPLE

              Plaintiff and Intervening Plaintiff will refrain
              from initiating any other civil enforcement action
              pursuant to Section 113(b) of the Act,  42 U.S.C.
              7413, Section 304 of the Act, 42 U.S.C.  7604, or
              applicable state law,  with respect to the
              limitations contained in this Decree for the
              emission of particulate matter and visible
              emissions from the bark boiler while Defendant is
              in compliance with this Decree.

    12.  Costs of the Action

    A consent decree should contain a provision which allocates

responsibility for payment of court costs incurred in the action

up to the date of settlement.  In most negotiated settlements,

each party bears its own costs.

                             EXAMPLE

              Each party in this action shall bear its own costs.

    13.  Execution of the Decree

    The decree should include signature lines for those who will

execute the decree on behalf of the parties and for the court.

The authority to settle judicial actions is currently delegated

to the Associate Administrator for Legal and Enforcement Counsel.

Therefore, consent decrees must be signed by the AA for OLEC or

his delegatee.  Additionally, in keeping with EPA's Memorandum of

Understanding with the Department of Justice, settlements of

cases in which DOJ represents the Agency require the consultation

and concurrence of the Attorney General.  Therefore,  the decree

should be signed by the Attorney General or his delegatee.
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                               -30-

                            APPENDIX  A
                     CONSENT DECREE CHECKLIST
     (This checklist can be used as a guide for inclusion of
            consent decree provisions.)
NAME OF CASE:
   U.S.  V.
   Civil Action No.
PROVISION
INCLUDED
YES   NO
COMMENTS
Identification of  Parties
and cause of action

  Plaintiff & initiation
  of the action

  Defendant - where defendant
  does business or is incorporated,
  facilities covered by decree

  Intervenors

Procedural history - prior
consent decrees and status
prior administrative action

Transitional Clause

Jurisdiction

Statement of claim - complaint
states claim for relief

Applicability clause - to
whom decree applies

Public Interest - decree is
in the public interest

Definitions

Compliance Provisions

  Test method for demonstration
  of compliance

  Monitoring provisions

  Entry and access

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                               -31-
PROVISION
INCLUDED
YES   NO
COMMENTS
  Standards defendant must meet
  Schedules - final deadline and
  interim schedules construction
  schedules
  Operation & maintenance
  procedures
  Performance bonds
  Notification provision
Civil penalties
  Amount and form of payment
  (lump sum or installment)
  Penalty payment to State
  Credits
Dispute Resolution
Nonwaiver provision
Stipulated penalties
  Items covered
  How paid
  Dispute resolution
  Escrow arrangements
Force Majeure
  Events covered
  Burden of proof on
  defendant
  Defendant's duties
  (notification requirement)
  Dispute resolution
Public comment on decree
(28 CFR 50.7)
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                              -32-
PROVISION
INCLUDED
YES   NO
COMMENTS
Retention of jurisdiction
(by the Court)

Confidentiality of
documents.

Modification of decree

Termination & satisfaction

Costs of the action

Execution of decree
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                                                        9834.12
MEMORANDUM                                          Aug.  14,  1987

SUBJECT:  Final Guidance on Use of Alternative Dispute
          Resolution Techniques in Enforcement Actions

TO:       Assistant Administrators
          Regional Administrators

I.  Purpose

     Attached is the final guidance on the use of alternative
dispute resolution (ADR) techniques in enforcement actions.   This
guidance has been reviewed by EPA Headquarters and Regional
offices, the Department of Justice, as well as by representatives
of the regulated community.  We have also sought the advice  of
leading ADR professionals, including many of the renowned
participants at a recent Colloquium on ADR sponsored by the
Administrative Conference of the United States.

     The reaction to the draft guidance has been overwhelmingly
favorable and helpful.  In response to comments, the guidance more
clearly distinguishes the uses of binding-and non-binding
techniques, emphasizes the need to protect the confidentiality of
conversations before a neutral, and includes model agreements and
procedures for the use of each ADR technique.

II.  Use of ADR

     As the guidance explains, ADR involves the use of third-party
neutrals to aid in the resolution of disputes through arbitration,
mediation, mini-trials and fact-finding.  ADR is being used
increasingly to resolve private commercial disputes.  EPA is
likewise applying forms of ADR in various contexts:  negotiated
rulemaking, RCRA citing, and Superfund remedial actions.   ADR
holds the promise of lowering the transaction costs to both the
Agency and the regulated community of resolving applicable
enforcement disputes.

     I view ADR as a new, innovative and potentially more
effective way to accomplish the results we have sought for years
using conventional enforcement techniques.  We retain our strict
adherence to the principle that the regulated community must
comply with the environmental laws.  The following tasks will be
undertaken to enable the Agency to utilize ADR to more effectively
and efficiently foster compliance:

     Training.  Some within the Agency may fear that using less
adversarial techniques to resolve enforcement actions implies that
the agency will be seeking less rigorous settlements.  This is not
the case.  We must train our own people in what ADR is, what it is
not, and how it can help us meet our own compliance objectives.
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                               -2-                      9834.12


We plan to accomplish this by making presentations at national
program and regional counsel meetings, and by consulting on
particular cases.

     Outreach.  We must also make an affirmative effort to
demonstrate to the regulated community that EPA is receptive to
suggestions from them about using ADR in a given case.  Nominating.
a case for ADR need not be viewed as a sign of weakness in either
party.  After we have gained experience, we plan to conduct a
national conference to broaden willingness to apply ADR in the
enforcement context.

     Pilot Cases.  Ultimately, the value of ADR must be proven by
its successful application in a few pilot cases.  ADR is being
used to resolve an important municipal water supply problem
involving the city of Sheridan, Wyoming.  Two recent TSCA
settlements also utilized ADR to resolve disputes which may arise
in conducting environmental audits required under the consent
agreements.  Beyond these, however, we need to explore the
applicability of ADR to additional cases.

III.  Action and Follow-Up

     I challenge each of you to help in our efforts to apply ADR
to the enforcement process.  I ask the Assistant Administrators to
include criteria for using ADR in future program guidance, and to
include discussions of ADR at upcoming national meetings.  I ask
the Regional Administrators to review the enforcement actions now
under development and those cases which have already been filed to
find cases which could be resolved by ADR.  I expect each Region
to nominate at least one case for ADR this fiscal year.  Cases
should be identified and nominated using the procedure set forth
in the guidance by September 4, 1987.
                              Lee M. Thomas

Attachment

cc:  Regional Enforcement Contacts
     Regional Counsels
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GUIDANCE ON THE USE OF ALTERNATIVE DISPUTE RESOLUTION




               IN  EPA  ENFORCEMENT  CASES
    United States Environmental Protection Agency
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                         TABLE  OF  CONTENTS

    Guidance  on  the  Use  of  Alternative  Dispute  Resolution (ADR)
                     in EPA Enforcement Cases     \ ,.

                                                             Pages

I.   INTRODUCTION 	    1

II.  ALTERNATIVE DISPUTE RESOLUTION METHODS .  .........    2

III. CHARACTERISTICS OF ENFORCEMENT CASES             -/'
     SUITABLE FOR ADR	    4

     A.  Impasse or Potential for Impasse 	    5
     B.  Resource Considerations  	    5
     C.  Remedies Affecting Parties Not Subject to an
         Enforcement Action 	    6

IV.  PROCEDURES FOR APPROVAL OF CASES FOR ADR	    6

     A.  Decisionmakers  	    7
     B.  Case Selection Procedures  	    7

          1.   Non Binding ADR	    8
          2.   Binding ADR	    8

V.   SELECTION OF A THIRD-PARTY NEUTRAL 	    8

     A,  Procedures for Selection 	    8
     B.  Qualifications for Third-Party Neutrals  	    9

          1.   Qualifications for Individuals   ........   10
          2.   Qualifications for Corporations  and Other
               Organizations	   11

VI.  OTHER ISSUES	   12

     A.  Memorialization of Agreements  	   12
     B.  Fees for Third-Party Neutrals	   12
     C.  Confidentiality	   12
     D.  Relationship of ADR to Timely and Appropriate and
         Significant Noncompliance Requirements 	   14

VII. PROCEDURES FOR MANAGEMENT OF ADR CASES	   14

     A.  Arbitration	   14
     B.  Mediation	   15
     C.  Mini-trial	   17
     D.  Fact-finding	   18
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                               -5-                      9834.12
VIII. ATTACHMENTS

     A.  Attachment A:  Letter of Nomination of Case for Mediation
     B.  Attachment B:  Letter of Nomination of Case for Binding
                        Resolution

     C.  Attachment C:  Arbitration Procedures
     D.  Attachment D:  Mediation Protocols
     E.  Attachment E:  Agreement to Institute Mini-Trial
                        Proceeding
     F.  Attachment F:  Agreement to Institute Fact-Finding
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                                                        9834.12

       GUIDANCE OF THE USE OF ALTERNATIVE DISPUTE RESOLUTION

                      IN EPA ENFORCEMENT CASES
I.  INTRODUCTION

     To effect compliance with the nation's environmental laws,
the United States Environmental Protection Agency  (EPA) has
developed and maintained a vigorous judicial and administrative
enforcement program.  Cases instituted under the program must be
resolved, either through settlement or decision by the appropriate
authority, as rapidly as possible in order to maintain the
integrity and credibility of the program, and to reduce the
backlog of cases.

     Traditionally, the Agency's enforcement cases have been
settled through negotiations solely between representatives of the
Government and the alleged violator.  With a 95 percent success
rate, this negotiation process has proved effective, and will
continue to be used in most of the Agency's cases.  Nevertheless,
other means of reaching resolution, known collectively as
alternative dispute resolution (ADR), have evolved.  Long accepted
and used in commercial, domestic, and labor disputes, ADR
techniques, such as arbitration and mediation, are adaptable to
environmental enforcement disputes.  These ADR procedures hold the
promise for resolution of some of EPA's enforcement cases more
efficiently than, but just as effectively as, those used in
traditional enforcement.  Furthermore, ADR provisions can also be
incorporated into judicial consent decrees and agreements ordered
by administrative law judges to address future disputes.

     EPA does not mean to indicate that by endorsing the use of
ADR in its enforcement actions, it is backing away from a strong
enforcement position.  On the contrary, the Agency views ADR as
merely another tool in its arsenal for achieving environmental
compliance.  EPA intends to use the ADR process, where
appropriate, to resolve enforcement actions with outcomes similar
to those the Agency reaches trough litigation and negotiation.
Since ADR addresses only the process (and not the substance) of
case resolution, its use will not necessarily lead to more lenient
results for violators; rather, ADR should take EPA to its desired
ends by more efficient means.

     ADR is increasingly becoming accepted by many federal
agencies, private citizens, and organizations as a method of
handling disputes.  The Administrative Conference of the United
States has repeatedly called for federal agencies to make greater
use of ADR techniques, and has sponsored numerous studies to
further their use by the federal government.  The Attorney General
of the United States has stated that it is the policy of the
United States to use ADR in appropriate cases.  By memorandum,
dated February 2, 1987, the Administrator of EPA endorsed the
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                               -2-                      9834.12


concept in enforcement disputes, and urged senior Agency officials
to nominate appropriate cases.

     This guidance seeks to:

     (1)  Establish Policy  establish that it is EPA policy to
          utilize ADR in the resolution of appropriate civil
          enforcement cases.

     (2)  Describe Methods  describe some of the applicable types
          of ADR, and the characteristics of cases which might
          call for the use of ADR;

     (3)  Formulate Case Selection Procedures  formulate
          procedures for determining whether to use ADR in
          particular cases, and for selection and procurement of a
          "third-party neutral" (i.e., mediators, arbitrators, or
          others employed in the use of ADR);

     (4)  Establish Qualifications  establish qualifications for
          third-party neutrals; and

     (5)  Formulate Case Management Procedures  formulate
          procedures for management of cases in which some or all
          issues are submitted for ADR.
II.  ALTERNATIVE DISPUTE RESOLUTION METHODS

     ADR mechanisms which are potentially useful in environmental
enforcement cases will primarily be mediation and nonbinding
arbitration.  Fact-finding and mini-trials may also be helpful in
a number of cases.  A general description of these mechanisms
follows.  (See also Section VIII, below, which describes in
greater detail how each of these techniques works.)  Many other
forms of ADR exist, none of which are precluded by this guidance.
Regardless of the technique employed, ADR can be used to resolve
any or all of the issues presented by a case.

     A.  Mediation  is the  facilitation  of negotiations  by  a
person not a party to the dispute (herein "third-party neutral")
who has no power to decide the issues, but whose function is to
assist the parties in reaching settlement.  The mediator serves to
schedule and structure negotiations, acts as a catalyst between
the parties, focuses the discussions, facilitates exchange between
   For further information on the mediation role of Clean Sites
   Inc., see guidance from the Assistant Administrator, Office of
   Solid Waste and Emergency Response and Assistant Administrator,
   Office of Enforcement and Compliance Monitoring on the "Role of
   Clean Sites Inc. at Superfund Sites," dated April 24, 1987.
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                               -3-                      9834.12


the parties, and serves as an assessor  but not a judge  of the
positions taken by the parties during the course of negotiations.
With the parties' consent, the mediator may take on additional
functions such as proposing solutions to the problem.   Neverthe-
less, as in traditional negotiation,  the parties retain the power
to resolve the issues through an informal,  voluntary process, in
order to reach a mutually acceptable agreement.   Having agreed to
a mediated settlement, parties can then make the results binding.

     B.  Arbitration involves the use of a person  not a party
to the dispute  to hear stipulated issues pursuant to procedures
specified by the parties.  Depending upon the agreement of the
parties and any legal constraints against entering into binding
arbitration, the decision of the arbitrator may or may not be
binding.  All or a portion of the issues  whether factual, legal
or remedial  may be submitted to the arbitrator.  Because
arbitration is less formal than a courtroom proceeding, parties
can agree to relax rules of evidence and utilize other time-saving
devices.  For the present, EPA appears to be restricted by law to
use binding arbitration only for small CERCLA cost recovery cases.
We are conducting further research regarding its use to decide
factual issues.

     C.  Fact-finding entails the investigation of specified
issues by a neutral with subject matter expertise, and selected by
the parties to the dispute.  The process may be binding or
nonbinding, but if the parties agree, the material presented by
the fact-finder may be admissible as an established fact in a
subsequent judicial or administrative hearing, or determinative- of
the issues presented.  As an essentially investigatory process,
fact-finding employs informal procedures.  Because this ADR
mechanism seeks to narrow factual or technical issues in dispute,
fact-finding usually results in a report, testimony, or
established fact which may be admitted as evidence, or in a
binding or advisory opinion.

     D.  Mini-trials permit the parties to present their case, or
an agreed upon portion of it, to principals who have authority to
settle the dispute (e.g., vice-president of a company and a senior
EPA official) and, in some cases as agreed by the parties, to a
neutral third-party advisor.  Limited discovery may precede the
case presentation.  The presentation itself may be summary or an
abbreviated hearing with testimony and cross-examination as the
parties agree.  Following the presentation, the principals
reinstitute negotiations, possibly with the aid of the neutral as
mediator.  The principals are the decisionmakers while the third-
party neutral, who usually has specialized subject matter
expertise in trial procedures and evidence, acts as an advisor on
potential rulings on issues if the dispute were to proceed to
trial.  This ADR mechanism is useful in narrowing factual issues
or mixed questions of law and fact, and in giving the principals a
realistic view of the strengths and weaknesses of their cases.
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                               -4-                      9834.12
III.  CHARACTERISTICS OF ENFORCEMENT CASES SUITABLE FOR ADR

     This section suggests characteristics of cases which may be
most suitable for use of ADR.  These characteristics are
necessarily broad, as ADR may theoretically be used in any type of
dispute.  Enforcement personnel can use these characteristics to
make a preliminary assessment of whether ADR should be considered .
for use in a particular case, including a discrete portion or
issue in a case.

     ADR procedures may be introduced into a case at any point in
its development or while pending in court.  However, it is
preferable that ADR be considered as early as possible in the
progress of the case to avoid the polarizing effect which
frequently results from long and intense negotiations or the
filing of a lawsuit.  ADR should, therefore, be considered prior
to referral of a case to DOJ.  Indeed, the threat of a referral
may be used as an incentive to convince the other parties to
utilize an appropriate ADR technique.

     Notwithstanding the preference for consideration and use of
ADR at an early stage in the progress of a case, there are
occasions when ADR should be considered after a case has been
referred and filed in court.  This is particularly true when the
parties have reached an apparent impasse in negotiations, or the
court does not appear to be willing to expeditiously move the case
to conclusion through establishing discovery deadlines, conducting
motions hearings or scheduling trial dates.  In such cases,
introduction of a mediator into the case, or submission of some
contested facts to an arbitrator may help to break the impasse.
Cases which have been filed and pending in court for a number of
years without significant movement toward resolution should be
scrutinized for prospective use of ADR.

     In addition to those circumstances, the complexity of legal
and technical issues in environmental cases have resulted in a
recent trend of courts to appoint special masters with increasing
frequency.  Those masters greatly increase the cost of the
litigation and, while they may speed the progress of the case, the
parties have little direct control over the selection or authority
of the masters.  The government should give careful consideration
to anticipating a court's desire to refer complex issues to a
master by proposing that the parties themselves select a mediator
to assist in negotiations or an arbitrator to determine some
factual issues.

     The following characteristics of cases which may be
candidates for use of some form of ADR are not intended to be
exhaustive.   Agency personnel must rely upon their own judgment
and experience to evaluate their cases for potential applications
of ADR.   In all instances where the other parties demonstrate
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                               -5-                      9834.12


their willingness to use ADR, EPA should consider its use.  Sample
characteristics of cases for ADR :

A.  Impasse of Potential for Impasse

     When the resolution of a case is prevented through impasse,
EPA is prevented from carrying out its mission to protect and
enhance the environment, and is required to continue to commit
resources to the case which could otherwise be utilized to address
other problems.  It is highly desirable to anticipate and avoid,
if possible, the occurrence of an impasse.

     Impasse, or the possibility for impasse, is commonly created
by the following conditions, among others:

     (1) Personality conflicts or poor communication among
negotiators;

     (2) Multiple parties with conflicting interests;

     (3) Difficult technical issues which may benefit from
independent analysis;

     (4) Apparent unwillingness of a court to rule on matters
which would advance the case toward resolution; or

     (5) High visibility concerns making it difficult for the
parties to settle such as cases involving particularly sensitive
environmental concerns such as national parks or wild and scenic
rivers, issues of national significance, or significant adverse
employment implications.

     In such cases, the involvement of a neutral to structure,
stimulate and focus negotiations and, if necessary, to serve as an
intermediary between personally conflicting negotiators should be
considered as early as possible.

B.  Resource Considerations

     All enforcement cases are important in that all have, or
should have, some deterrent effect upon the violator and other
members of the regulated community who hear of the case.  It is,
therefore, important that EPA's cases be supported with the level
of resources necessary to achieve the desired result.
Nevertheless, because of the size of EPA's enforcement effort, it
is recognized that resource efficiencies must be achieved whenever
possible to enable EPA to address as many violations as possible.
   ADR is not considered appropriate in cases where the Agency is
   contemplating criminal action.
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                               -6-                      9834.12


     There are many cases in which utilizing some form of ADR
would achieve resource efficiencies for EPA.  Generally, those
cases contain the following characteristics:

     (1) Those brought in a program area with which EPA has had
considerable experience, and in which the procedures,  case law and
remedies are relatively well-settled and routine; or

     (2) Those having a large number of parties or issues where
ADR can be a valuable case management tool.


C.   Remedies Affecting Parties not Subject to an Enforcement
     Action

     Sometimes, the resolution of an underlying environmental
problem would benefit from the involvement of persons,
organizations or entities not a party to an impending enforcement
action.  This is becoming more common as EPA and the Congress
place greater emphasis on public participation in major decisions
affecting remedies in enforcement actions.  Such cases might
include those in which:

     (1) A state or local governmental unit have expressed an
interest, but are not a party;

     (2) A citizens group has expressed, or is likely to express 
an interest; or

     (3) The remedy is likely to affect not only the violator but
the community in which the violator is located as well  (e.g..
those cases in which the contamination is wide-spread, leading to
a portion of the remedy being conducted off-site).

     In such cases, EPA should consider the use of a neutral very
early in the enforcement process in order to establish
communication with those interested persons who are not parties to
the act but whose understanding and acceptance of the remedy will
be important to an expeditious resolution of the case.


IV.  PROCEDURES FOR APPROVAL OF CASES FOR ADR

     This section describes procedures for the nomination of cases
for ADR.  These procedures are designed to eliminate confusion
regarding the selection of cases for ADR by: (1) integrating the
selection of cases for ADR into the existing enforcement case
selection process; and (2) creating decision points and contacts
in the regions, headquarters, and DOJ to determine whether to use
ADR in particular actions.
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                               -7-                      9834.12
     A.  Decisionmakers

     To facilitate decisions whether to use ADR in a particular
action, decision points in headquarters, the regions and DOJ must
be established.  At headquarters, the decisionmaker will be the
appropriate Associate Enforcement Counsel (AEC).   The AEC should
consult on this decision with his/her corresponding headquarters
compliance division director.  AT DOJ, the decisionmaker will be
the Chief, Environmental Enforcement Section.  In the regions, the
decisionmakers will be the Regional Counsel in consultation with
the appropriate regional program division director.  If the two
Regional authorities disagree on whether to use ADR in a
particular case, then the Regional Administrator (RA) or the
Deputy Regional Administrator (DRA), will decide the matter.  This
decisionmaking process guarantees consultation with and
concurrence of all relevant interests.

     B.  Case Selection Procedures

     Anyone in the regions, headquarters, or DOJ who is
participating in the development or management of an enforcement .
action, or any defendant or PRP not yet named as a defendant, may
suggest a case or selected issues in a case for ADR.   Any
suggestion, however, must be communicated to and discussed with
the appropriate regional office for its consent.   The respective
roles of the AECs and DOJ are discussed below.  After a decision
by the Region or litigation team to use ADR in a particular case, 
the nomination should be forwarded to headquarters and, if it is a
referred case, to DOJ.  The nominations must be in writing, and"
must enumerate why the case is appropriate for ADR.  (See Section
III of this document which describes the characteristics for
selection of cases for ADR.)  Attachments A and B are sample case
nomination communications.  Attachment A pertains to nonbinding
ADR, and Attachment B pertains to binding ADR.

     Upon a determination by the Government to use ADR, Government
enforcement personnel assigned to the case (case team) must
approach the PRP(s) or other defendant(s) with the suggestion.
The case team should indicate to the PRP(s) or defendant(s) the
factors which have led to the Agency's recommendation to use ADR,
and the potential benefits to all parties from its use.  The
PRP(s) or other defendant(s) should understand, nevertheless, that
the Government is prepared to proceed with vigorous litigation in
the case.if the use of a third-party neutral fails to resolve the
matter.  Further, for cases which are referable,  the defendant(s)
should be advised that EPA will not hesitate to refer the matter
to DOJ for prosecution.
   Nomination papers should always be deemed attorney work product
   so that they are discovery free.
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                                -8-                      9834.12


      1.  Nonbinding ADR

      For mediation, mini-trials, nonbinding arbitration, and other
ADR mechanisms  involving use of a third-party neutral as a
nonbinding decisionmaker, regions should notify the appropriate
AEC and, if the case  is referred, DOJ of:  (1) its intent to use
ADR in a particular case, and  (2) the opportunity to consult with
the Region on its decision.  Such notification should be in
writing and by  telephone call.  The AEC will consult with the
appropriate headquarters program division director.  The Region
may presume that the  AEC and DOJ agree with the selection of the
case  for ADR unless the AEC or  DOJ object within fifteen (15)
calendar days of receipt of the nomination of the case.  If either
the AEC or DOJ  object, however, the Region should not proceed to
use ADR in the  case until consensus is reached.

      2.  Binding ADR

      For binding arbitration and fact-finding, and other ADR
mechanisms involving  the use of third-party neutrals as binding
decisionmakers, the appropriate AEC must concur in the nomination
of the case by  the Region.  In  addition, DOJ must also concur in
the use of binding ADR in referred cases.  Finally, in non-CERCLA
cases which may involve compromise of claims in excess of $20,000
or where the neutral's decision will be embodied in a court order,
DOJ must also concur.  Without  the concurrence of headquarters and
DOJ under these circumstances,  the Region may not proceed with
ADR.  OECM and  DOJ should attempt to concur in the nomination
within fifteen  (15) days of receipt of the nomination.

     Under the  Superfund Amendments and Reauthorization Act
(SARA), Pub. L. No. 99-499, 122(h)(2)(1986), EPA may enter into
binding arbitration for cost recovery claims under Section 107 of
CERCLA, provided the  claims are not in excess of $500,000,
exclusive of interest.  Until regulations are promulgated under
this section, EPA is  precluded  from entering into binding
arbitration in  cost recovery actions.  Accordingly, Attachment C
is not yet appropriate for use  in cases brought under this
section.  It is, however, available for use in nonbinding
arbitration.

V.  SELECTION OF A THIRD-PARTY  NEUTRAL

     A.   Procedures  for Selection

     Both the Government and all defendants must agree on the need
for a neutral in order to proceed with ADR.  In some situations
(e.g., in a Superfund case), however, the parties may proceed with
ADR with consensus of only some of the parties depending on the
issue and the parties.  Once agreed,  the method for selecting the
neutral and the actual selection in both Superfund and other cases
will be determined by all parties involved with the exception of
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                               -9-                      9834.12
cases governed by 107 of CERCLA.  To help narrow the search for a
third-party neutral, it is useful, although not required, for the
parties to agree preliminarily on one or more ADR mechanisms.
OECM is available to help at this point in the process, including
the procurement of in-house or outside persons to aid the parties
in selecting an appropriate ADR mechanism.

     In Section VIII below, we have indicated some of the
situations where each ADR mechanism may be most appropriate.  Of
course, the parties are free to employ whichever technique they
deem appropriate for the case.  Because the ADR mechanisms are
flexible, they are adaptable to meet the needs and desires of the
parties.

     The parties can select a third-party neutral in many ways.
Each party may offer names of proposed neutrals until all parties
agree on one person or organization.  Alternatively, each party
may propose a list of candidates, and allow the other parties to
strike unacceptable names from the list until agreement is
reached.  For additional methods, see Attachments C, D, and E.
Regardless of how the parties decide to proceed, the Government
may obtain names of qualified neutrals from the Chief, Legal
Enforcement Policy Branch (LEPB) (FTS 475-8777, LE-130A, E-Mail
box EPA 2261), by written or telephone request.  With the help of
the Administrative Conference of the U.S. and the Federal
Mediation and Conciliation Service, OECM is working to establish a
national list of candidates from which the case team may select
neutrals.  In selecting neutrals, however, the case team is not
limited to such a list.

     It is important to apply the qualifications enumerated below
in section V.B. in evaluating the appropriateness of a proposed
third-party neutral for each case.  Only the case team can decide
whether a particular neutral is acceptable in its case.  The
qualifications described below provide guidance in this area.

     At any point in the process of selecting an ADR mechanism or
third-party neutral, the case team may consult with the Chief,
LEPB, for guidance.

     B.  Qualifications for Third-Party Neutrals

     The following qualifications are to be applied in the
selection of all third-party neutrals who may be considered for
service in ADR procedures to which EPA is a party.  While a third-
party neutral should meet as many of the qualifications as
possible, it may be difficult to identify candidates who possess
all the qualifications for selection of a third-party neutral.
Failure to meet one or more of these qualifications should not
necessarily preclude a neutral who all the parties agree would be
satisfactory to serve in a particular case.  The qualifications
are,  therefore, intended only as guidance rather than as
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prerequisites to the use of ADR.  Further, one should apply a
greater degree of flexibility regarding the qualifications of
neutrals involved in nonbinding activities such as mediation, and
a stricter adherence to the qualifications for neutrals making
binding decisions such as arbitrators.

          1-  Qualifications for Individuals

               a.  Demonstrated Experience.  The candidate should
have experience as a third-party neutral in arbitration, mediation
or other relevant forms of ADR.  However, other actual and active
participation in negotiations, judicial or administrative hearings
or other forms of dispute resolution, service as an administrative
law judge, judicial officer or judge, or formal training as a
neutral may be considered.  The candidate should have experience
in negotiating, resolving or otherwise managing cases of similar
complexity to the dispute in question, e.g., cases involving
multiple issues, multiple parties,  and mixed technical and legal
issues where applicable.

               b.  Independence.  The candidate must disclose any
interest or relationship which may give rise to bias or the
appearance of bias toward or against any party.  These interests
or relationships include:

     (a)  past, present or prospective positions with or financial
          interests in any of the parties;

     (b)  any existing or past financial, business, professional,
          family or social relationships with any of the parties
          to the dispute or their attorneys;

     (c)  previous or current involvement in the specific dispute;

     (d)  past or prospective employment, including employment as
          a neutral in previous disputes, by any of the parties;

     (e)  past or present receipt of a significant portion of the
          neutral's general operating funds or grants from one or
          more of the parties to the dispute.

     The existence of such an interest or relationship does not
necessarily preclude the candidate from serving as a neutral,
particularly if the candidate has demonstrated sufficient
independence by reputation and performance.  The neutrals with the
most experience are most likely to have past or current
relationships with some parties to the dispute, including the
Government.  Nevertheless, the candidate must disclose all
interests, and the parties should then determine whether the
interests create actual or apparent bias.
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               c.  Subject Matter Expertise.   The candidate should
have sufficient general knowledge of the subject matter of the
dispute to understand and follow the issues,  assist the parties in
recognizing and establishing priorities and the order of
consideration of those issues, ensure that all possible avenues
and alternatives to settlement are explored,  and otherwise serve
in the most effective manner as a third-party neutral.   Depending
on the case, it may also be helpful if the candidate has specific
expertise in the issues under consideration.

               d.  Single Role.   The candidate should not be
serving in any other capacity in the enforcement process for that
particular case that would create actual or apparent bias.  The
case team should consider any prior involvement in the dispute
which may prevent the candidate from acting with objectivity.  For
example, involvement in developing a settlement proposal,
particularly when the proposal is developed on behalf of certain
parties, may preclude the prospective neutral from being objective
during binding arbitration or other ADR activities between EPA and
the parties concerning that particular proposal.

     Of course, rejection of a candidate for a particular ADR
activity, such as arbitration, does not necessarily preclude any
role for the candidate in that case.  The candidate may continue
to serve in other capacities by, for example, relaying information
among parties and presenting offers on behalf of particular
parties.

          2.  Qualifications for Corporations and Other
Organizations.   Corporations  or other entities  or organizations
which propose to act as third-party neutrals, through their
officer employees or other agents, in disputes involving EPA,
must:

     (a) like unaffiliated individuals, make the disclosures
         listed above; and

     (b) submit to the parties a list of all persons who, on
         behalf of the corporation, entity or organization, are or
         may be significantly involved in the ADR procedure.
         These representatives should also make the disclosure
         listed above.

     In selecting a third-party neutral to resolve or aid in the
resolution of a dispute to which EPA is a party, Agency personnel
   For further guidance regarding Clean Sites Inc., see guidance
   from the Assistant Administrator, Office of Solid Waste and
   Emergency Response and Assistant Administrator, Office of
   Enforcement and Compliance Monitoring on the "Role of Clean
   Sites Inc. at Superfund Sites," dated April 24, 1987.
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                               -12-                     9834.12


 should  remain  at  all times aware that the Agency must not only
 uphold  its obligation to protect public health, welfare and the
 environment, but  also develop and maintain public confidence that
 the Agency is  performing its mission.  Care should be taken in the
 application of these qualifications to avoid the selection of
 third-party neutrals whose involvement in the resolution of the
 case might undermine the integrity of that resolution and the
 enforcement efforts of the Agency.


 VII. OTHER ISSUES;

     A.  Memorialization of Agreements

     Just as it would in cases where ADR has not been used, the
 case team should  memorialize agreements reached through ADR in
 orders  and settlement documents and obtain DOJ and headquarters
 approval  (as appropriate) of the terms of any agreement reached
 through ADR.

     B.  Fees  For Third-Party Neutrals

     The Government's share of ADR costs will be paid by
 Headquarters.  Contact LEPB to initiate payment mechanisms.
 Because such mechanisms require lead time, contact with LEPB
 should  be made as early as possible after approval of a case for
 ADR.

     It is EPA policy that PRPs and defendants bear a share of
 these costs equal to EPA except in unusual circumstances.  This
 policy  ensures that these parties "buy in" to the process.  It is
 important that the exact financial terms with these parties be
 settled and set forth in writing before the initiation of ADR in
 the case.

     C.  Confidentialitv

     Unless otherwise discoverable, records and communications
 arising from ADR  shall be confidential and cannot be used in
 litigation or  disclosed to the opposing party without permission.
 This policy does  not include issues where the Agency is required
 to make decisions on the basis of an administrative record such as
 the selection  of  a remedy in CERCLA cases.  Public policy
 interests in fostering settlement compel the confidentiality of
ADR negotiations  and documents.  These interests are reflected in
 a number of measures which seek to guarantee confidentiality and
 are recognized by a growing body of legal authority.

     Most indicative of the support for non-litigious settlement
of disputes is Rule 408 of the Federal Rules of Evidence which
renders offers of compromise or settlement or statements made
during discussions inadmissable in subsequent litigation between
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                               -13-                     9834.12


the parties to prove liability.  Noting the underlying policy
behind the rule, courts have construed the rule to preclude
admission of evidence regarding the defendant's settlement of
similar cases.

     Exemption protection under the Freedom of Information Act
(FOIA), 15 U.S.C. 552, could also accommodate the interest in
confidentiality.  While some courts have failed to recognize the
"settlement negotiations privilege,"  other courts  have
recognized the privilege.

     In addition to these legal authorities and policy arguments,
confidentiality can be ensured by professional ethical codes.
Recognizing that promoting candor on the parties' part and
impartiality on the neutral's part is critical to the success of
ADR, confidentiality provisions are incorporated into codes of
conduct as well as written ADR agreements  (See Attachment D).  The
attachment provides liquidated damages where a neutral reveals
confidential information except under court order.

     Furthermore, confidentiality can be effected by court order,
if ADR is court supervised.  Finally, as many states have done
statutorily, EPA is considering the promulgation of regulations
which further ensure the confidentiality of ADR proceedings.
   See Scaramuzzo v. Glenmore Distilleries Co..  501 F.Supp. 727
   (N.D. 111. 1980), and to bar discovery, see Branch v. Phillips
   Petroleum Co.. 638 F.2d 873 (5th Cir. 1981).   Courts have also
   construed labor laws to favor mediation or arbitration and have
   therefore prevented third-party neutrals from being compelled
   to testify.  See, e.g..  N.L.R.B. v. Joseph Macaluso. Inc.,  618
   F.2d 51 (9th Cir. 1980)  (upholding N.L.R.B.'s revocation of
   subpoena issued to mediator to avoid breach of impartiality).

   See, e.g.. Center for Auto Safety v. Department of Justice. 576
   F.Supp. 739, 749 (D.D.C. 1983).

   See Bottaro v. Hatton Associates. 96 F.R.D. 158-160 (E.D.N.Y
   1982) (noting "strong public policy of favoring settlements"
   and public interest in "insulating the bargaining table from
   unnecessary intrusions").   In interpreting Exemption 5 of the
   FOIA, the Supreme Court asserted that the "contention that [a
   requester could] obtain through the FOIA ma'terial that is
   normally privileged would  create an anomaly in that the FOIA
   could be used to supplement civil discovery.   ...We do not
   think that Congress could  have intended that  the weighty
   policies underlying discovery privileges could be so easily
   circumvented."  United States v. Weber Aircraft,  104 S.Ct.
   1488, 1494 (1984).
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                               -14-                      9834.12


     D.  Relationship of ADR to Timely and Appropriate and
         Significant Noncompliance Requirements

     The decision to use ADR would have no particular impact under
the "timely and appropriate" (T&A) criteria in a case where there
is already an administrative order or a civil referral since the
"timely and appropriate" criteria would have been met by the
initiation of the formal enforcement action.  In the case of a
civil referral, the 60-day period by which DOJ is to review and
file an action may be extended if ADR is used during this time.

     The decision to use ADR to resolve a violation prior to the
initiation of a formal enforcement action, however, would be
affected by applicable "timely and appropriate" criteria (e.g., if
the violation fell under a program's Significant Noncompliance
(SNC) definition, the specific timeframes in which compliance must
be achieved or a formal enforcement action taken would apply).
The use of ADR would not exempt applicable "T&A" requirements and
the ADR process would normally have to proceed to resolve the case
or "escalate" the enforcement response.  However, since, "T&A" is
not an immutable deadline, that ADR is being used for a particular
violation would be of central significance to any program
management review of that case (e.g., the. Deputy Administrator's
discussion of "timely and appropriate" enforcement during a
regional review would identify the cases in which ADR is being
used).
VIII.  PROCEDURES FOR MANAGEMENT OF ADR CASES

     This section elaborates on the various ADR techniques:  How
they work, some problems that may be encountered in their use, and
their relationship to negotiation and litigation.  For each ADR
technique, we have provided, as an attachment to this guidance, an
example of procedures reflecting its use.  These attachments are
for illustrative purposes only, and do not represent required
procedures.  The specific provisions of the attachments should be
adapted to the circumstances of the case or eliminated if not
applicable.

     A.  Arbitration

         1.  Scope and Nature

     As stated in Section II, above, arbitration involves the
selection by the parties of a neutral decisionmaker to hear
selected issues and render an opinion.  Depending on the parties'
agreement, the arbitrator's decision may or may not be binding.
For the present, EPA appears to be restricted by law to use
binding arbitration only for small CERCLA cost recovery cases.  We
are conducting further research regarding its use to decide
factual issues.  Included as Attachment C are draft generic
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                              -15-                      9834.12


arbitration procedures for formal arbitration.   To conduct less
formal proceedings, the parties may modify the procedures.

         2.  Use

     Arbitration is most appropriate in resolving routine cases
that do not merit the resources required to generate and process a
civil judicial referral.  It may aid in resolving technical
disputes that are usually submitted to the courts or
administrative law judges (ALJs), which disputes require subject-
matter expertise which federal district court judges and ALJs may
lack.

     B.  Mediation

         1.  Scope and Nature

     Mediation, an informal process, is entered into voluntarily
by the parties to a dispute and in no way binds them beyond their
own agreement.  More than the other ADR processes, mediation is
best viewed as an extension of the direct negotiation process
begun by the parties. . As in direct negotiation, the parties
continue to control the substance of discussions and any agreement
reached.  In mediation, however, the mediator directs and
structures the course of discussions.

     The mediation format varies with the individual style of the
mediator and the needs of the parties.  Initially, the mediator is
likely to call a joint meeting with the parties to work out ground
rules such as how and when meetings will be scheduled.  Included
as Attachment D are generic mediation protocols for use and
adaptation in all EPA mediations.  Most of the items covered in
the attachment would be useful as ground rules for most EPA
enforcement negotiations.  Ordinarily, mediators will hold a
series of meetings with the parties in joint session, as well as
with each party.  In joint meetings, the mediator facilitates
discussion.  In separate caucuses, the mediator may ask questions
or pose hypothetical terms to a party in order to clarify its
position and identify possible areas for exchange and agreement
with the opposing party.  Some mediators will be more aggressive
than others in this role; they may even suggest possible
settlement alternatives to resolve deadlocks between the parties.
In general, however, the mediator serves as a facilitator of
discussions and abstains from taking positions on substantive
points.
   Arbitration is specifically authorized under Section 107 of
   CERCLA for cost recovery claims not in excess of $500,000,
   exclusive of interest.
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                               -16-                     9834.12


     There are no external time limits on mediation other than
those imposed by the parties or by external pressures from the
courts, the community or public interest groups.  In all cases,
the Government should insist on a time limit for the mediation to
ensure that the defendants do not use mediation as a stalling
device.  The Government should also insist on establishing points
in the process to evaluate progress of the mediation.  As the
parties approach settlement terms through mediation, final
authority for decisionmaking remains the same as during direct
negotiations, i.e., requirements for approval or concurrence from
senior managers are applicable.

         2.  Use of Mediation

     Mediation is appropriate for disputes in which the parties
have reached or anticipate a negotiation impasse based on, among
other things, personality conflicts, poor communication, multiple
parties, or inflexible negotiating postures.  Additionally,
mediation is useful in those cases where all necessary parties are
not before the court (e.g., a state which can help with the
funding for a municipality's violation).  Mediation is the most
flexible ADR mechanism, and should be the most widely used in
Agency disputes.

         3.  Withdrawal from Mediation

     As a voluntary and unstructured process, mediation proceeds
entirely at the will of the parties and, therefore, may be
concluded by the parties prior to settlement.  A determination to
withdraw from mediation should be considered only when compelling
factors militate against proceeding.  If the mediation has
extended beyond a reasonable time period (or the period agreed
upon by the parties) without significant progress toward
agreement, it may be best to withdraw and proceed with direct
negotiations or litigation.  Withdrawing from mediation might also
be considered in the unlikely event that prospects for settlement
appear more remote than at the outset of the mediation.   Finally,
inappropriate conduct by the mediator would warrant concluding the
mediation effort or changing mediators.

         4.  Relation to Litigation

     In the ordinary case, prior to referral or the filing of an
administrative complaint,  the time limits for mediation could be
the same as those for negotiation.   In contrast to normal
negotiations, however,  the parties may agree that during the time
period specified for mediation, litigation activities such as
serving interrogatories, taking depositions, or filing motions may
be suspended.  In filed civil judicial cases, where the court
imposes deadlines,  it will be necessary to apprise the court of
the parties'  activities and to build ADR into the court's
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                               -17-                     9834.12
timetable.   For agreements relating ADR activities to ongoing
litigation,  see paragraph 17 of Attachment E.

     C.  Mini-Trial

         1.  Scope and Nature

     Like other ADR techniques, the mini-trial is also voluntary
and nonbinding on the parties.  In the mini-trial, authority for
resolution of one or more issues rests with senior managers who,
representing each party  in the dispute, act as decisionmakers.  .In
some cases a neutral referee is appointed to supervise the
proceedings  and assist the decisionmakers in resolving an issue by
providing the parties with a more realistic view of their case.
In addition, the neutral's presence can enhance public
acceptability of a resolution by effectively balancing the
interests of the Government and the defendant.

     The scope and format of the mini-trial are determined solely
by the parties to the dispute and are outlined in an initiating
agreement.   Because the  agreement will govern the proceedings, the
parties should carefully consider and define issues in advance of
the mini-trial.  Points  that could be covered include the option
of and role  for a neutral, issues to be considered, and procedural
matters such as order and schedule of proceedings and time limits.
Attachment E is a sample mini-trial agreement.

     The mini-trial proceeds before a panel of decisionmakers
representing the parties and, in some cases, a neutral referee.
Preferably,  the decisionmakers will not have participated directly
in the case  prior to the mini-trial.  The defendant's
representative should be a principal or executive of the entity
with decisionmaking authority.  EPA's representative should be a
senior Agency official comparable in authority to the defendant's
representative.  In some cases, each side may want to use a panel
consisting of several decisionmakers as its representatives.  The
neutral referee is selected by both parties and should have
expertise in the issues  under consideration.

     At the mini-trial,  counsel for each side presents his or her
strongest and most persuasive case to the decisionmakers in an
informal, trial-like proceeding.  In light of this structure,
strict rules of evidence do not apply, and the format for the
presentation is unrestricted.  Each decisionmaker is then afforded
the unique opportunity to proceed, as agreed,  with open and direct
questioning of the other side.  This information exchange allows
the decisionmakers to adjust their perspectives and positions in
light of a preview of the case.  Following this phase of the mini-
trial,  the decisionmakers meet, with or without counsel or the
neutral referee,  to resolve the issue(s)  or case presented,
through negotiation.
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                               -18-                      9834.12
         2.  Role of the Neutral

     The neutral referee may serve in more than one capacity in
this process, and should be selected with a clearly defined
concept of his or her role.  The most common role is to act as an
advisor to the decisionmakers during the information exchange.
The neutral may offer opinions on points made or on adjudication
of the case in litigation, and offer assistance to the decision-
makers in seeing the relative merits of their positions.  The
neutral's second role can be to mediate the negotiation between
the decisionmakers should they reach an impasse or seek assistance
in forming an agreement.  Unless otherwise agreed by the parties,
no evidence used in the mini-trial is admissible in litigation.

         3.  Use

     As with mediation, prior to referral or the filing of an
administrative complaint, the time limits for a mini-trial would
be the same as those for negotiation.  The parties usually agree,
however,  that during the time period specified for a mini-trial,
litigation activities such as serving interrogatories, taking
depositions, or filing motions may be suspended except as
otherwise agreed.  In general, mini-trial-s are appropriate in
cases involving only a small number of parties, and are most
useful in four kinds of disputes:

     1.  Where the parties have reached or anticipate reaching a  .
negotiation impasse due to one party's overestimation, in the view
of the other party, of the strength of its position;

     2.  Where significant policy issues exist which would benefit
from a face-to-face presentation to decisionmakers (without use of
a neutral);

     3.  Where the issues are technical, and the decisionmakers
and neutral referee have subject-matter expertise; or

     4.  Where the imprimatur of a neutral's expertise would aid
in the resolution of the case.

     D.  Fact-Finding

         1.  Scope and Nature

     Binding or nonbinding fact-finding may be adopted voluntarily
by parties to a dispute, or imposed by a court.  It is most
appropriate for issues involving technical or factual disputes.
The primary purpose of this process is to reduce or eliminate
conflict over facts at issue in a case.  The fact-finder's role is
to act as an independent investigator, within the scope of the
authority delegated by the parties.  The findings may be used in
reaching settlement, as "facts" by a judge or ALJ in litigation,
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                              -19-                      9834.12


or as binding determinations.  Like other ADR processes involving
a neutral, a resolution based on a fact-finder's report will have
greater credibility with the public.

     The neutral's role in fact-finding is clearly defined by an
initial agreement of the parties on the issue(s) to be referred to
the fact-finder and the use to be made of the findings or
recommendations, e.g., whether they will be binding or advisory.
Once this agreement is framed, the role of the parties in the
process is limited and the fact-finder proceeds independently.
The fact-finder may hold joint or separate meetings or both with
the parties in which the parties offer documents, statements, or
testimony in support of their positions.  The fact-finder is also
free to pursue other sources of information relevant to the
issue(s).  The initial agreement of the parties should include a
deadline for receipt of the fact-finder's report.  Attachment F is
a sample fact-finding agreement.

     The fact-finder issues a formal report of findings, and
recommendations, if appropriate, to the parties, ALJ or the court.
If the report is advisory, the findings and recommendations are
used to influence the parties' positions and give impetus to
further settlement negotiations.  If the report is binding, the
parties adopt the findings and recommendations as provisions of
the settlement agreement.  In case of litigation, the.findings
will be adopted by the judge or ALJ as "facts" in the case.

         2.  Relation to Litigation

     Decisions regarding pursuit of litigation when fact-finding
is instituted are contingent upon the circumstances of the case
and the issues to be referred to the fact-finder.  If fact-finding
is undertaken in connection with an ongoing settlement
negotiation, in most cases it is recommended that the parties
suspend negotiations on the issues requiring fact-finding until
the fact-finder's report is received.  If fact-finding is part of
the litigation process, a decision must be made whether to proceed
with litigation of the rest of the case or to suspend litigation
while awaiting the fact-finder's report.
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                           ATTACHMENT A
MEMORANDUM

SUBJECT: Nomination of U.S. v. XYZ Co. for Non-binding Alternative
         for Dispute Resolution

FROM:    Deputy Regional Administrator

TO:      Associate Enforcement Counsel for Hazardous Waste
            Enforcement

         Chief, Environmental Enforcement Section
         Department of Justice

     This memorandum is to nominate U.S. v. XYZ Co. for
alternative dispute resolution (ADR).  The case is a CERCLA
enforcement action involving multiple PRPs as well as a number of
complex technical and legal issues.  The RI/FS and the record of
decision have both been completed.  We anticipate that the PRPs
are interested in settling this matter and, we believe, a trained
mediator will greatly aid negotiations.  The members of the
litigation team concur in this judgment.

     We understand that if you object within 15 days of the date
of this letter, we will not proceed with ADR in this case without
your approval.  We do believe, however, that ADR is appropriate in
this action.  We look forward to working with your offices in this
matter.
                   -RETYPED FROM THE ORIGINAI/-

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                           ATTACHMENT B
MEMORANDUM

SUBJECT: Nomination of United States v. ABC Co. for Binding
         Alternative Dispute Resolution

FROM:    Deputy Regional Administrator

TO:      Associate Enforcement Counsel for Water Enforcement

         Chief, Environmental Enforcement Section
         Department of Justice

     This memorandum requests concurrence in the use of a binding
fact-finding procedure in United States v. ABC Co.  The case
involves the following facts:

     ABC Co. owns and operates a specialty chemical production and
formulation facility.  Wastewater streams come from a variety of
production areas which change with product demand.  Because of
these diverse processes, the company's permit to discharge
wastewater must be based on the best professional judgment of the
permit writer as to the level of pollution control achievable.

     The company was issued an NPDES permit in 1986.  The permit
authorizes four (4) outfalls and contains limits for both
conventional and toxic organic pollutants.  The effluent
limitations of the permit incorporate the Best Available
Technology requirements of the Clean Water Act (CWA).

     EPA filed a civil lawsuit against the company for violating
effluent limits of the 1986 permit.  As part of the settlement of
the action, the company was required to submit a compliance plan
which would provide for modification of its existing equipment,
including institution of efficient operation and maintenance
procedures to obtain compliance with the new permit.  The
settlement agreement provides for Agency concurrence in the
company's compliance plan.

     The company submitted a compliance plan, designed by in-house
engineers, which proposed to slightly upgrade their existing
activated sludge treatment system.  The company has claimed that
this upgraded system provides for treatment adequate to meet the
permit limits.  EPA has refused to concur in the plan because EPA
experts believe that additional treatment modifications to enhance
pollutant removals are required to meet permit limits on a
continuous basis.   This enhancement, EPA believes, is possible
with moderate additional capital expenditures.

     A fact-finding panel, consisting of experts in utility,
sanitation and chemical engineering, is needed to assess the
adequacy of the treatment system improvements in the compliance
plan in satisfying permit requirements.  Resolution of this issue
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                               -2-                      9834.12


by binding, neutral fact-finding will obviate the expenditure of
resources needed to litigate the issue.

     We request your concurrence in the nomination of this case
for fact-finding within fifteen (15) days.  We look forward to
hearing from you.
                   -RETYPED FROM THE ORIGINAL-

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                           ATTACHMENT C

                     ARBITRATION PROCEDURES*

SUBPART A - GENERAL

1.  Purpose

         This document establishes  and governs procedures for the
         arbitration of EPA disputes arising under [insert
         applicable statutory citations].

2.  Scope and Applicability

         The procedures enunciated  in this document may be used to
         arbitrate claims or disputes of the EPA regarding [insert
         applicable statutory citations and limitations on scope,
         if any].

SUBPART B -  JURISDICTION OF ARBITRATOR.  REFERRAL OF CLAIMS.  AND
             ARBITRATOR SELECTION

1.  Jurisdiction of Arbitrator

     (a)  In accordance with the procedures set forth in this
          document, the Arbitrator  is authorized to arbitrate
          [insert applicable categories of claims or disputes].

     (b)  The Arbitrator is authorized to resolve disputes and
          award claims within the scope of the issues presented in
          the joint request for arbitration.

2.  Referral of Disputes

     (a)  EPA [insert reference to  mechanism by which EPA has
          entered into dispute, e.g.. after EPA has issued demand
          letters or an administrative order], and one or more
          parties to the case may submit a joint request for
          arbitration of [EPA's claim, or one or more issues in
          dispute among the parties] 	 [a group
          authorized to arbitrate such matters, e.g., the National
          Arbitration Association (NAA)]  if [restate any general
          limitations on scope].  The joint request shall include:
          A statement of the matter in dispute; a statement of the
          issues to be submitted for resolution; a statement that
          the signatories consent to arbitration of the dispute in
          accordance with the procedures established by this
          document; and the appropriate filing fee.

     (b)  Within thirty days after submission of the joint request
          for arbitration,  each signatory to the joint request
   Regulations applicable to section 112 of SARA are currently
   being prepared.
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                               -2-                      9834.12


          shall individually submit to the National Arbitration
          Association two copies of a written statement which
          shall include:

         (1) An assertion of the parties' positions in the matter
             in dispute;

         (2) The amount of money in dispute, if appropriate;

         (3) The remedy sought;

         (4) Any documentation which the party deems necessary to
             support its position;

        [(5) A statement of the legal standard applicable to the
             claim and any other applicable principles of law
             relating to the claim;]

         (6) The identity of any known parties who are not
             signatories to the joint request for arbitration; and

         (7) A recommendation for the locale for the arbitral
             hearing.

     A copy of the statement shall be sent to all parties.

3.  Selection of Arbitrator

     (a)  The NAA has established and maintains a National Panel of
         Environmental Arbitrators.

     (b)  After the filing of the joint request for arbitration,
         NAA shall submit simultaneously to all parties to the
         dispute an identical list of ten [five]  names of persons
         chosen from the National Panel of Environmental
         Arbitration.  Each party to the dispute shall have seven
         days from the date of receipt to strike any names
         objected to, number the remaining names to indicate order
         of preference,  and return the list to the NAA.  If a
         party does not return the list within the time specified,
         all persons named shall be deemed acceptable.  From among
         the persons who have been approved on all lists,  and if
         possible,  in accordance with the designated order of
         mutual preference,  the NAA shall invite an Arbitrator to
         serve.  If the parties fail to agree upon any of the
         persons named,  or if acceptable Arbitrators are unable to
         serve, or if for any other reason the appointment cannot
         be made from the submitted lists,  the NAA shall make the
         appointment from among other members of the Panel without
         the submission of any additional lists.   Once the NAA
         makes the appointment,  it shall immediately notify the
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         parties of the identity of the Arbitrator and the date of
         the appointment.

     (c) The dispute shall be heard and determined by one
         Arbitrator, unless the NAA decides that three Arbitrators
         should be approved based on the complexity of the issues
         or the number of parties.

     (d) The NAA shall notify the parties of the appointment of
         the Arbitrator and send a coy of these rules to each
         party.  A signed acceptance of the case by the Arbitrator
         shall be filed with the NAA prior to the opening of the
         hearing.  After the Arbitrator is appointed, all
         communications from the parties shall be directed to the
         Arbitrator.

     (e) If any Arbitrator should resign, die, withdraw, or be
         disqualified, unable or refuse to perform the duties of
         the office, the NAA may declare the office vacant.
         Vacancies shall be filled in accordance with the
         applicable provisions of this Section, and unless the
         parties agree otherwise, the matter .shall be reheard.

4.  Disclosure

     (a) A person appointed as an Arbitrator under the above
         section shall, within five days of receipt of his or her
         notice of appointment disclose to the NAA any
         circumstances likely to affect impartiality, including
         [those factors listed in section V.B. of the accompanying
         guidance].

     (b) Upon receipt of such information from an appointed
         Arbitrator or other source, the NAA shall on the same day
         communicate such information to the parties and, if it
         deems it appropriate, to the Arbitrator and others.

     (c) The parties may request within seven days of receipt of
         such information from the NAA that an Arbitrator be
         disqualified.

     (d) The NAA shall make a determination on any request for
         disqualification of an Arbitrator within seven days after
         the NAA receives any such request.  This determination
         shall be within the sole discretion of the NAA, and its
         decision shall be final.

5.  Intervention and Withdrawal

     (a) Subject to the approval of the parties and the
         Arbitrator, any person [insert applicable limitations, if
         any,  e.g., any person with a substantial interest in the
                   -RETYPED FROM THE ORIGINAL-

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                               -4-                      9834.12


         subject of the referred dispute] may move to intervene in
         the arbitral proceeding.  Intervening parties shall be
         bound by rules that the Arbitrator may establish.

     (b) Any party may for good cause shown move to withdraw from
         the arbitral proceeding.  The Arbitrator may approve such
         withdrawal, with or without prejudice to the moving
         party, and may assess administrative fees or expenses
         against the withdrawing party as the Arbitrator deems
         appropriate.

SUBPART C - HEARINGS BEFORE THE ARBITRATOR

1.  Filing of Pleadings

     (a) Any party may file an answering statement with the NAA no
         later than seven days from the date of receipt of an
         opposing party's written statement.  A copy of any
         answering statement shall be served upon all parties.

     (b) Any party may file an amended written statement with the
         NAA prior to the appointment of the Arbitrator.  A copy
         of the amended written statement -shall be served upon all
         parties.  After the Arbitrator is appointed, however, no
         amended written statement may be submitted except with
         the Arbitrator's consent.

    [(c) Any party may file an answering statement to the amended
         written statement with the NAA no later than seven days,
         from the date of receipt of an opposing party's amended
         written statement.  A copy of any answering statement
         shall be served upon all parties.]

2.  Pre-hearing Conference

     At the request of one or more of the parties or at the
discretion of the Arbitrator, a pre-hearing conference with the
Arbitrator and the parties and their counsel will be scheduled in
appropriate cases to arrange for an exchange of information,
including witness statements, documents, and the stipulation of
uncontested facts to expedite the arbitration proceedings.  The
Arbitrator may encourage further settlement discussions during the
pre-hearing conference to expedite the arbitration proceedings.
Any pre-hearing conference must be held within sixty days of the
appointment of the Arbitrator.

3.  Arbitral Hearing

     (a) The Arbitrator shall select the locale for the arbitral
         hearing, giving due consideration to any recommendations
         by the parties.
                   -RETYPED FROM THE ORIGINAL-

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                          -5-                       9834.12
(b)  The Arbitrator shall  fix the time  and place  for  the
    hearing.

(c)  The hearing shall commence within  thirty  days  of the  pre-
    hearing conference,  if such conference is held,  or within
    sixty [thirty] days  of the appointment of the  Arbitrator,
    if no pre-hearing conference is  held.   The Arbitrator
    shall notify each party by mail  of the hearing at least
    thirty days in advance,  unless the parties by  mutual
    agreement waive such notice or modify the terms  thereof.

(d)  Any party may be represented by  counsel.   A  party who
    intends to be represented shall  notify the other parties
    and the Arbitrator of the name and address of  counsel at
    least three days prior to the date set for the hearing at
    which counsel is to  appear.   When  an  arbitration is
    initiated by counsel,  or where an  attorney replies for
    the other parties, such notice is  deemed  to  have been
    given.

(e)  The Arbitrator shall  make the necessary arrangements  for
    making a record of the arbitral  hearing.

(f)  The Arbitrator shall  make the necessary arrangements  for
    the services of an interpreter upon the request  of one or
    more of the parties,  and the requesting parties  shall
    assume the cost of such service.

(g)  The Arbitrator may halt the proceedings upon the request
    of any party or upon the Arbitrator's own initiative.

(h)  The Arbitrator shall  administer  oaths to  all witnesses
    before they testify  at the arbitral hearing.

(i)  (1)  A hearing shall  be opened by the  recording of the
        place,  time,  and date of the hearing,  the  presence of
        the Arbitrator and parties,  and counsel, if  any,  and
        by the receipt by the Arbitrator  of the  written
        statements,  amended written  statements,  if any, and
        answering statements,  if any.   The Arbitrator may,  at
        the beginning of  the hearing,  ask for oral statements
        clarifying the issues involved.

    (2)  The EPA shall then present its case,  information  and
        witnesses, if any,  who shall answer questions posed
        by both parties.   The Arbitrator  has  discretion to
        vary this procedure but shall  afford  full  and equal
        opportunity to all parties for the presentation of
        any material or  relevant information.

    (3)  Exhibits,  when offered by any  party,  may be  received
        by the Arbitrator.   The names  and addresses  of all
              -RETYPED FROM THE ORIGINAL-

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                          -6-                      9834.12
        witnesses, and exhibits in the order received,  shall
        be part of the record.

(j) The arbitration may proceed in the absence of any party
    which, after notification, fails to be present or fails
    to obtain a stay of proceedings.  If a party, after
    notification, fails to be present, fails to obtain a
    stay, or fails to present information, the party will be
    in default and will have waived the right to be present
    at the arbitration.  A decision shall not be made solely
    on the default of a party.  The Arbitrator shall require
    the parties who are present to submit such information as
    the Arbitrator may require for the making of a decision.

(k) Information and Evidence

    (1) The parties may offer information as they desire,
    subject to reasonable limitations as the Arbitrator deems
    appropriate, and shall produce additional information as
    the Arbitrator may deem necessary to an understanding and
    determination of the dispute.   The Arbitrator shall be
    the judge of the relevancy and materiality of the
    information offered, and conformity to legal rules of
    evidence shall not be necessary.

    (2) All information shall be introduced in the presence
    of the Arbitrator and all parties, except where any of
    the parties has waived the right to be present pursuant
    to paragraph (j)  of this section.  All information
    pertinent to the issues presented to the Arbitrator for
    decision, whether in oral or written form, shall be made
    a part of the record.

(1) The Arbitrator may receive and consider the evidence of
    witnesses by affidavit,  interrogatory or deposition,  but
    shall give the information only such weight as the
    Arbitrator deems appropriate after consideration of any
    objections made to its admission.

(m) After the presentation of all  information, the Arbitrator
    shall specifically inquire of  all parties whether they
    have any further information to offer or witnesses  to be
    heard.  Upon receiving negative replies,  the Arbitrator
    shall declare the hearing closed and minutes thereof
    shall be recorded.

(n) The parties may provide,  by written agreement,  for  the
    waiver of the oral hearing.

(o) All documents not submitted to the Arbitrator at the
    hearing,  but arranged for at the hearing or by subsequent
    agreement of the parties,  shall be filed with the
              -RETYPED FROM THE  ORIGINAL-

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                               -7-                      9834.12


         Arbitrator.  All parties shall be given an opportunity to
         examine documents.

4.   Arbitral Decision

     (a) The Arbitrator shall render a decision within thirty
         [five] days after the hearing is declared closed except
         if:

             (1) All parties agree in writing to an extension; or

             (2) The Arbitrator determines that an extension of
                 the time limit is necessary.

     (b) The decision of the Arbitrator shall be signed and in
         writing.  It shall contain a brief statement of the basis
         and rationale for the Arbitrator's determination.   At the
         close of the hearing, the Arbitrator may issue an oral
         opinion which shall be incorporated into a subsequent
         written opinion.

     (c) The Arbitrator may grant any remedy or relief within the
         scope of the issues presented in the joint request for
         arbitration.

     (d) The Arbitrator shall assess arbitration fees and expenses
         in favor of any party, and, in the event any
         administrative fees or expenses are due the NAA, in favor
         of the NAA.

     (e) If the dispute has been heard by three Arbitrators, and
         decisions and awards must be made by at least a majority,
         unless the parties agree in writing otherwise.

     (f) If the parties settle their dispute during the course of
         the arbitration, the Arbitrator, upon the parties1
         request, may set forth the terms of the agreed
         settlement.

     (g) The Arbitrator shall mail to or serve the decision on the
         parties.

     (h) The Arbitrator shall, upon written request of any party
         furnish certified facsimiles of any papers in the
         Arbitrator's possession that may be required in judicial
         proceedings relating to the arbitration.
                   -RETYPED FROM THE ORIGINAL-

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                               -8-                      9834.12
SUBPART D - APPEALS, FEES AND OTHER PROVISIONS

1.  Appeals Procedures

     (a)  Any party may appeal the award or decision within thirty
         days of notification of the decision.  Any such appeal
         shall be made to the [insert "Federal district court for
         the district in which the arbitral hearing took place" or
         "Chief Judicial Officer, U.S.  Environmental Protection
         Agency"].

     (b)  The award or decision of the Arbitrator shall be binding
         and conclusive, and shall not be overturned unless
         achieved through fraud, misrepresentation, abuse of
         discretion, other misconduct by any of the parties, or
         mutual mistake of fact.  [Insert "No court shall" or "The
         Chief Judicial Officer shall not"] have jurisdiction to
         review the award or decision unless there is a verified
         complaint with supporting affidavits attesting to
         specific instances of such fraud, misrepresentation,
         abuse of discretion, other misconduct, or mutual mistake
         of fact.

     (c)  Judgment upon the arbitration award may be entered in any
         Federal district court having jurisdiction.  The award
         may be enforced in any Federal district court having
       .  jurisdiction.

     (d)  Except as provided in paragraph (c), no award or decision
         shall be admissible as evidence of any issue of fact or
         law in any proceeding brought under any other provision
         of [insert applicable statutory acronyms] or any other
         provision of law, nor shall any prearbitral settlement be
         admissible as evidence in any such proceeding.
         Arbitration decisions shall have no precedential value
         for future arbitration, administrative or judicial
         proceedings.

2.  Administrative Fees. Expenses, and Arbitrator's Fee

     (a)  The NAA shall prescribe an Administrative Fee Schedule
         and a Refund Schedule.  The schedules in effect at the
         time of filing or the time of refund shall be applicable.
         The filing fee shall be advanced by the parties to the
         NAA as part of the joint request for arbitration, subject
         to apportionment of the total administrative fees by the
         Arbitrator in the award.  If a matter is withdrawn or
         settled, a refund shall be made in accordance with the
         Refund Schedule.

     (b)  Expenses of witnesses shall be borne by the party
         presenting such witnesses.  The expense of the
                   -RETYPED FROM THE ORIGINAL-

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                               -9-                      9834.12
         stenographic record and all transcripts thereof shall be
         prorated equally among all parties ordering copies,
         unless otherwise agreed by the parties, or unless the
         Arbitrator assesses such expenses or any part thereof
         against any specified party in the award.

     (c)  The per diem fee for the Arbitrator shall be agreed  upon
         by the parties and the NAA prior to the commencement of
         any activities by the Arbitrator.  Arrangements for
         compensation of the Arbitrator shall be made by the  NAA.

     (d)  The NAA may require an advance deposit from the parties
         to defray the Arbitrator's Fee and the Administrative
         Fee, but shall render an accounting to the parties and
         return any balance of such deposit in accordance with the
         Arbitrator's award.

3.   Miscellaneous Provisions

     (a)  Any party who proceeds with the arbitration after
         knowledge that any provision or requirement of this  Part
         has not been complied with, and who fails to object
         either orally or in writing, shall be deemed to have
         waived the right to object.  An objection, whether oral
         or written, must be made at the earliest possible
         opportunity.

     (b)  Before the selection of the Arbitrator, all oral or
         written communications from the parties for the
         Arbitrator's consideration shall be directed to the  NAA
         for eventual transmittal to the Arbitrator.

     (c)  Neither a party nor any other interested person shall
         engage in ex parte communication with the Arbitrator.

     (d)  All papers connected with the arbitration shall be served
         on an opposing party either by personal service or United
         States mail, First Class, addressed to the party's
         attorney, or if the party is not represented by an
         attorney or the attorney cannot be located, to the last
         known address of the party.
                   -RETYPED FROM THE ORIGINAL-

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                           ATTACHMENT D

                       MEDIATION PROTOCOLS

I.   PARTICIPANTS

     A.  Interests Represented.  Any interest that would be
         substantially affected by EPA's action in
         [specify case] may be represented.   Parties may group
         together into caucuses to represent allied interests.

     B.  Additional Parties.  After negotiations have begun,
         additional parties may join the negotiations only with
         the concurrence of all parties already represented.

     C.  Representatives.   A representative  of each party or
         alternate must attend each full negotiating session.   The
         designated representative may be accompanied by such
         other individuals as the representative believes is
         appropriate to represent his/her interest, but only the
         designated representative will have the privilege of
         sitting at the negotiating table and of speaking during
         the negotiations, except that any representative may call
         upon a technical  or legal adviser to elaborate on a
         relevant point.

II.   DECISIONMAKING

     A.  Agendas.  Meeting agendas will be developed by consensus.
         Agendas will be provided before every negotiating
         session.

     B.  Caucus.  A caucus can be declared by any participant at
         any time.  The participant calling  the caucus will inform
         the others of the expected length of the caucus.

III.   SAFEGUARDS FOR THE PARTIES

     A.  Good Faith.  All  participants must  act in good faith in
         all aspects of these negotiations.   Specific offers,
         positions, or statements made during the negotiations may
         not be used by other parties for any other purpose or as
         a basis for pending or future litigation.   Personal
         attacks and prejudiced statements are unacceptable.

     B.  Right to Withdraw.  Parties may withdraw from the
         negotiations at any time without prejudice.   Withdrawing
         parties remain bound by protocol provisions on public
         comment and confidentiality.

     C.  Minutes.  Sessions shall not be recorded verbatim.
         Formal minutes of the proceedings shall not be kept.

     D.  Confidentiality and the Use of Information
                   -RETYPED FROM THE ORIGINAL-

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                               -2-                      9834.12
          (1)  [All parties agree not to withhold relevant
              information.  If a party believes it cannot or should
              not release such information, it will provide the
              substance of the information in some form  (such as by
              aggregating data, by deleting non-relevant
              confidential information, by providing summaries, or
              by furnishing it to a neutral consultant to use or
              abstract) or a general description of it and the
              reason for not providing it directly.]

          (2)  [Parties will provide information called for by this
              paragraph as much in advance of the meetings as
              possible.]

          (3)  The entire process is confidential.  The parties and
              the mediator will not disclose information regarding
              the process, including settlement terms, to third
              parties, unless the participants otherwise agree.
              The process shall be treated as compromise
              negotiation for purposes of the Federal Rules of
              Evidence and state rules of evidence.  The mediator
              will be disqualified as a witness, consultant or
              expert in any pending or future action relating to
              the subject matter of the mediation, including those
              between persons not parties to the mediation.
              Failure to meet the confidentiality or press
              requirements of these protocols is a basis for
              exclusion from the negotiations.

          (4)  The mediator agrees that if he/she discloses
              information regarding the process, including
              settlement terms, to third parties without the
              participants' agreement,  except as ordered by a court
             with appropriate jurisdiction,  he/she agrees to the
              following as liquidated damages to the parties:

              (a)  Removal from the case;

              (b)  Removal from any EPA list of approved neutrals;
                 and

              (c)  Payment of an amount equal  to 	 [at a
                 minimum, the amount of the  mediator's fee].
IV.  SCHEDULE
         Time and location.  Negotiating sessions will initially
         be held 	 [insert how often].  The first
         negotiating session is scheduled for 	.
         Unless otherwise agreed upon, a deadline of 	 months
         for the negotiations will be established.  The location
         of the meetings will be decided by the participants.
                   -RETYPED FROM THE ORIGINAL-

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                               -3-                      9834.12
     B.  Discontinue if unproductive.   The participants may
         discontinue negotiations at any time if they do not
         appear productive.
V.  Press
     A.  [Joint Statements.  A joint press statement shall be
         agreed to by the participants at the conclusion of each
         session.  A joint concluding statement shall be agreed to
         by the participants and issued by the mediator at the
         conclusion of the process.  Participants and the mediator
         shall respond to press inquiries within the spirit of the
         press statement agreed to at the conclusion of each
         session.]

     B.  [Meetings with the Press.  Participants and the mediator
         will strictly observe the protocols regarding
         confidentiality in all contacts with the press and in
         other public forums.  The mediator shall be available to
         discuss with the press any questions on the process and
         progress of the negotiations.  No party will hold
         discussions with the press concerning specific offers,
         positions, or statements made during the negotiations by
         any other party.]

VI.   MEDIATOR

         A neutral mediator will work with all the parties to
         ensure that the process runs smoothly.

VII.  APPROVAL OF PROPOSALS

     A.  Partial Approval.  It is recognized that unqualified
         acceptance of individual provisions is not possible out
         of context of a full and final agreement.  However,
         tentative agreement of individual provisions or portions
         thereof will be signed by initialing of the agreed upon
         items by the representatives of all interests
         represented.  This shall not preclude the parties from
         considering or revising the agreed upon items by mutual
         consent.

     B.  Final Approval.  Upon final agreement, all
         representatives shall sign and date the appropriate
         document.  It is explicitly recognized that the
         representatives of the U.S. EPA do not have the final
         authority to agree to any terms in this case.  Final
         approval must be obtained from 	 [insert names
         of proper officials].
                   -RETYPED FROM THE ORIGINAL-

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                               -4-                      9834.12


VIII.  EFFECTIVE DATE

     These protocols shall be effective upon the signature of the
representatives.


For the U.S. Environmental Protection Agency
          Signature                                     Date


For 	 [Name of violator]
          Signature                                     Date
                   -RETYPED FROM THE ORIGINAL-

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                           Attachment E

           AGREEMENT TO INSTITUTE MINI-TRIAL PROCEEDINGS


     The United States Environmental Protection Agency  (EPA) and
XYZ Corporation,  complainant and respondent, respectively,  in the
matter of  XYZ Corp.. Docket No.	, agree to the alternative
dispute resolution  procedure set forth in this document for the
purpose of fostering the potential settlement of this case.  This
agreement,  and all  of the actions that are taken pursuant to this
agreement,  are confidential.  They are considered to be part of
the settlement process and subject to the same privileges that
apply to settlement negotiations.

     1.  The parties agree to hold a mini-trial to inform their
management representatives of the theories, strengths, and
weaknesses of the parties' respective positions.  At the mini-
trial, each side  will have the opportunity and responsibility to
present its "best case" on all of the issues involved in this
proceeding.

     2.  Management Representatives of both parties, including an
EPA official and  an XYZ official at the Division Vice President
level or higher,  will attend the mini-trial.  The representatives
have authority to settle the dispute.

     3.  A mutually selected "Neutral Advisor" will attend the
mini-trial.  The  Neutral Advisor will be Chosen in the following
manner.  By 	, [insert date] the parties shall exchange a
list of five potential Neutral Advisors selected from the list of
candidates  offered  by 	 [insert neutral
organization].  The potential candidates shall be numbered in
order of preference.  The candidate who appears on both lists and
who has the lowest  total score shall be selected as the Neutral
Advisor.   If no candidate appears on both lists, the parties shall
negotiate  and shall select and agree upon a Neutral Advisor by
	__ [insert date].

     4.  The fees and expenses of the Neutral Advisor will be
borne equally by both parties.  [However, if the Neutral Advisor
provides an opinion as to how the case should be resolved, and a
party does  not follow the recommended disposition of the Neutral
Advisor, that party shall bear the Advisor's entire fees and
expenses.]

     5.  Neither party, nor anyone on behalf of either party,
shall unilaterally  approach,  contact or communicate with the
Advisor.  The parties and their attorneys represent and warrant
that they will make a diligent effort to ascertain all prior
contact between themselves and the Neutral Advisor,  and that all
such contacts will be disclosed to counsel for the opposing party.

     6.  Within 10 days after the appointment of the Neutral
Advisor, mutually agreed upon basic source material will be
                   -RETYPED FROM THE ORIGINAL-

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                               -2-                      9834.12
jointly sent to the Neutral Advisor to assist him or her in
familiarizing himself or herself with the basic issues of the
case.  This material will consist of neutral matter including this
agreement, the complaint and answer, the statute, any relevant
Agency guidance, a statement of interpretation and enforcement
policy, the applicable civil penalty policy, and any
correspondence between the parties prior to the filing of the
complaint.

     7.  All discovery will be completed in the 	 [insert
number] working days following the execution of this agreement.
Neither party shall propound more than 25 interrogatories or
requests for admissions, including subparts; nor shall either
party take more than five depositions and no deposition shall last
more than three hours.  Discovery taken during the period prior to
the mini-trial shall be admissible for all purposes in this
litigation, including any subsequent hearing before [a federal
judge or administrative law judge] in the event this mini-trial
does not result in a resolution of this dispute.  It is agreed
that the pursuit of discovery during the period prior to the mini-
trial shall not restrict either party's ability to take additional
discovery at a later date.  In particular, it is understood and
agreed that partial depositions may be necessary to prepare for
the mini-trial.  If this matter is not resolved informally as a
result of this procedure, more complete depositions of the same
individuals may be necessary.  In that event, the partial
depositions taken during this interim period shall in no way
foreclose additional depositions of the same individual regarding
the same or additional subject matter for a later hearing.

     8.  By 	, [insert date] the parties shall exchange
all exhibits they plan to use at the mini-trial, and send copies
at the same time to the Neutral Advisor.  On the same date the
parties also shall exchange and submit to the Neutral Advisor and
to the designated trial attorney for the opposing side:  (a)
introductory statements no longer than 25 double-spaced pages (not
including exhibits), (b) the names of witnesses planned for the
mini-trial, and (c) all documentary evidence proposed for
utilization at the mini-trial.

     9.  Two weeks before the mini-trial, if he or she so desires
and if the parties agree, the Neutral Advisor may confer jointly
with counsel for both parties to resolve any outstanding
procedural questions.

     10.   The mini-trial proceeding shall be held on 	,
and shall take 	 day(s).   The morning proceedings shall begin
at      a.m.  and shall continue until      a.m.   The afternoon's
                   -RETYPED FROM THE ORIGINAL/-

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                               -3-
                          9834.12
proceedings shall begin at 	 p.m.  and continue until
A sample two day schedule follows:
                                p.m.
     Day 1

 8:30 a.m. - 12:00 Noon

12:00 Noon - 1:00 p.m.

 1:00 p.m. - 2:30 p.m.

 2:30 p.m. - 4:00 p.m.

 4:00 p.m. - 5:00 p.m.
EPA's position and case presentation

Lunch*

XYZ's cross-examination

EPA's re-examination

Open question and answer period
 8:30 a.m. - 12:00 Noon

12:00 Noon - 1:00 p.m.

 1:00 p.m. - 2:30 p.m.

 2:30 p.m. - 3:00 p.m.

 3:00 p.m. - 4:30 p.m.

 4:30 p.m. - 4:45 p.m.

 4:45 p.m. - 5:00 p.m.
XYZ's position and case presentation

Lunch*

EPA's cross-examination

XYZ's re-examination

Open question and answer period

EPA's closing argument

XYZ's closing argument
*Flexible time period for lunch of a stated duration.

     11.  The presentations at the mini-trial will be informal.
Formal rules of evidence will not apply, and witnesses may provide
testimony in the narrative.  The management representatives may
question a witness at the conclusion of the witness1  testimony for
a period not exceeding ten minutes per witness.   In addition, at
the conclusion of each day's presentation,  the management
representatives may ask any further questions that they deem
appropriate, subject to the time limitations specified in
paragraph 10.  Cross-examination will occur at the conclusion of
each party's direct case presentation.

     12.  At the mini-trial proceeding, the trial attorneys will
have complete discretion to structure their presentations as
desired.  Forms of presentations include, but are not limited to,
expert witnesses, lay witnesses, audio visual aids, demonstrative
evidence, and oral argument.  The parties agree that there will be
no objection by either party to the form or content of the other
party's presentation.
                   -RETYPED FROM THE ORIGINAL-

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                               -4-                      9834.12
     13.  In addition to asking clarifying questions,  the Neutral
Advisor may act as a moderator.  However,  the Neutral  Advisor will
not preside like a judge or arbitrator,  nor have the power to
limit, modify or enlarge the scope or substance of the parties'
presentations.  The presentations will not be recorded,  but either
party may take notes of the proceedings.

     14.  In addition to counsel, each management representative
may have advisors in attendance at the mini-trial, provided that
all parties and the Neutral Advisor shall  have been notified of
the identity of such advisors at least ten days before
commencement of the mini-trial.

     15.  At the conclusion of the mini-trial, the management
representatives shall meet, by themselves, and shall attempt to
agree on a resolution of the dispute.  By  agreement, other members
of their teams may be invited to participate in the meetings.

     16.  At the request of any management representative, the
Neutral Advisor will render an oral opinion as to the  likely
outcome at trial of each issue raised during the mini-trial.
Following that opinion^ the management representatives will again
attempt to resolve the dispute.  If all management representatives
agree to request a written opinion on such matters, the Neutral
Advisor shall render a written opinion within 14 days.  Following
issuance of any such written opinion, the  management
representatives will again attempt to resolve the dispute.

     17.  If the parties agree, the [administrative law judge or'
federal district court judge] may be informed in a confidential
communication that an alternative dispute  resolution procedure is
being employed, but neither party shall inform the  [administrative
law judge or federal district court judge] at any time as to any
aspect of the mini-trial or of the Advisor.  Furthermore, the
parties may file a joint motion to suspend proceedings in the
	 [appropriate court] in this case.  The motion shall
advise the court that the suspension is for the purpose of
conducting a mini-trial.  The court will be advised as to the time
schedule established for completing the mini-trial proceedings.
Written and oral statements made by one party in the course of the
mini-trial proceedings cannot be utilized by the other party and
shall be inadmissible at the hearing of this matter before the
[administrative law judge or federal district court judge] for any
purpose, including impeachment.  However,  documentary evidence
that is otherwise admissible shall not be rendered inadmissible as
a result of its use at the mini-trial.

     18.  Any violation of these rules by either party will
seriously prejudice the opposing party and be prima facie grounds
for a motion for a new hearing; and to the extent that the
violation results in the communication of information to the
[administrative law judge or federal district court judge]
                   -RETYPED FROM THE ORIGINAL-

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                               -5-                      9834.12


contrary to the terms of this agreement, it shall be prima facie
grounds for refusal of the [administrative law judge or federal
district court judge].  Moreover, notwithstanding the provisions
of Paragraph 4 above, any violation of these rules by either party
will entitle the opposing party to full compensation for its share
of the Neutral Advisor's fees and expenses, irrespective of the
outcome of any administrative or court proceeding.

     19.  The Neutral Advisor will be disqualified as a hearing
witness, consultant, or expert for either party, and his or her
advisory response will be inadmissible for all purposes in this or
any other dispute involving the parties.  The Neutral Advisor will
treat the subject matter of the presentations as confidential and
will refrain from disclosing any trade secret information
disclosed by the parties.  After the Advisor renders his or her
opinion to the parties, he or she shall return all materials
provided by the parties (including any copies) and destroy all
notes concerning this matter.


Dated:                             Dated:
By:  	     By:
    Attorney for United States         Attorney for XYZ
    Environmental Protection Agency    Corporation
Affirmation of Neutral Advisor:

     I agree to the foregoing provisions of this Alternative
Dispute Resolution Agreement.
Dated:


Signed:
             Neutral Advisor
                   -RETYPED FROM THE ORIGINAL-

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                           ATTACHMENT F

                           UNITED STATES
                  ENVIRONMENTAL PROTECTION AGENCY
In the Matter of                   )
                                   )
XYZ Corporation,                   )    Docket No.
                                   )
      Respondent                   )


          AGREEMENT TO INSTITUTE FACT-FINDING PROCEDURES


A.  General Provisions

    1.   Purpose

    2.   Definitions

B.  Guidelines for Conduct of Neutral Fact-finding

    1.   Scope and Applicability

    2.   Jurisdiction of Neutral Fact-finder

    3.   Selection of Neutral Fact-finder

    4.   Information Regarding Dispute

    5.   Determination of Neutral Fact-finder

    6.   Confidentiality

    7.   Appeals Procedures

    8.   Administrative Fees, Expenses, and Neutral Fact-finder's
         Fee

    9.   Miscellaneous Provisions


A.  GENERAL PROVISIONS

1.  Purpose

    This agreement contains the procedures to be followed for
    disputes which arise over 	 [state issue(s)].

2.  Definitions

    Terms not defined in this section have the meaning given by
    	 [state applicable statute(s) and section(s)].


                   -RETYPED FROM THE ORIGINAL-

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                               -2-                      9834.12


    All time deadlines in these alternative dispute resolution
    (ADR)  procedures are specified in calendar days.   Except when
    otherwise specified:

    (a)  "Act" means [state applicable statute(s)  and citation in
         U.S. Code].

    (b)  "NAO" means any neutral administrative organization
         selected by the parties to administer the requirements of
         the ADR procedures.

    (c)  "Neutral Fact-finder" means any person selected in
         accordance with and governed by the provisions of these
         ADR procedures.

    (d)  "Party" means EPA and the XYZ Corporation.


B.  GUIDELINES FOR CONDUCT OF NEUTRAL FACT-FINDING

1.  Scope and Applicability

    The ADR procedures established by this document are for
    disputes arising over	 [state issue(s)].

2.  Jurisdiction of Neutral Fact-finder

    In accordance with the ADR procedures set forth in this
    document, the Neutral Fact-finder is authorized to issue
    determinations of fact regarding disputes over [state
    	 issue(s)], and any other issues authorized by
    the parties.

3.  Selection of Neutral Fact-finder

    The Neutral Fact-finder will be chosen by the parties in the
    following manner.

    (a)  The parties shall agree upon a neutral administrative
         organization (NAO) to provide services to the parties as
         specified in these ADR procedures.

         The parties shall jointly request the NAO to provide them
         with a list of three to five (3-5) potential Neutral
         Fact-finders.   Either party may make recommendations to
         the NAO of qualified individuals.  Within ten (10) days
         after the receipt of the list of potential Neutral Fact-
         finders, the parties shall numerically rank the listed
         individuals in order of preference and simultaneously
         exchange such rankings.  The individuals with the three
         (3) lowest combined total scores shall be selected as
         finalists.  Within ten (10) days after such selection,
                   -RETYPED FROM THE ORIGINAL-

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                               -3-                      9834.12
         the parties shall arrange to meet with and interview the
         finalists.  Within ten (10)  days after such meetings,  the
         parties shall rank the finalists in order of preference
         and exchange rankings.  The individual with the lowest
         combined total score shall be selected as the Neutral
         Fact-finder.

    (b)   The NAO shall give notice of the appointment of the
         Neutral Fact-finder to each of the parties.  A signed
         acceptance by the Neutral Fact-finder shall be filed with
         the NAO prior to the initiation of fact-finding
         proceedings.

    (c)   If the Neutral Fact-finder should resign, die, withdraw,
         or be disqualified, unable,  or refuse to perform the
         duties of the office, the NAO may, on proof satisfactory
         to it, declare the office vacant.  Vacancies shall be
         filled in accordance with the applicable provisions of
         this section, and the dispute shall be reinitiated,
         unless the parties agree otherwise.

4.   Information Regarding Dispute

    (a)   Within ten (10)  days after the selection of the Neutral
         Fact-finder, basic source material shall be jointly
         submitted to the Neutral Fact-finder by the parties.
         Such basic source material shall consist of:

         1) an agreed upon statement of the precise nature of the
            dispute,

         2) the position of each party and the rationale for it,

         3) all information and documents which support each
            party's position, and

         4) 	 [describe additional material].

    (b)   Thereafter, for a period of    '	 days, the Neutral
         Fact-finder shall conduct an investigation of the issues
         in dispute.  As part of such investigation, the Neutral
         Fact-finder may interview witnesses, request additional
         documents, request- additional information by written
         questions, and generally use all means at his or her
         disposal to gather the facts relevant to the disputes  as
         he or she determines.  The Neutral Fact-finder shall be
         the sole determiner of the relevancy of information.
         Conformity to formal rules of evidence shall not be
         necessary.
                   -RETYPED FROM THE ORIGINAL-

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                               -4-                      9834.12
5.  Determination of Neutral Fact-finder

    (a)   The Neutral Fact-finder shall render a determination
         within 	 days of the time limitation specified in
         Section B.4(b)  above,  unless:

            (1)  Both parties agree in writing to an extension;
                 [or

            (2)  The Neutral Fact-finder determines that an
                 extension of the time limit is necessary.]

    (b)   The determination of the Neutral Fact-finder shall be
         signed and in writing.  It shall contain a full statement
         of the basis and rationale for the Neutral Fact-finder's
         determination.

    (c)   If the parties settle their dispute prior to the
         determination of the Neutral Fact-finder, the Neutral
         Fact-finder shall cease all further activities in regard
         to the dispute upon receipt of joint notice of such
         settlement from the parties.

    (d)   The parties shall accept as legal delivery of the
         determination the placing of a true copy of the decision
         in the mail by the Neutral Fact-finder, addressed to the
         parties' last known addresses or their attorneys, or by
         personal service.

    (e)   After the Neutral Fact-finder forwards his or her
         determination to the parties, he or she shall return all
         dispute-specific information provided by the parties
         (including any copies) and destroy notes concerning this
         matter.

6.  Confidentiality

    (a)   The determination of the Neutral Fact-finder, and all of
         the actions taken pursuant to these ADR procedures, shall
         be confidential and shall be entitled to the same
         privileges that apply generally to settlement
         negotiations.

    (b)   The Neutral Fact-finder shall treat the subject matter of
         all submitted information as confidential, and shall
         refrain from disclosing any trade secret or confidential
         business information disclosed as such by the parties.
         [If XYZ has previously formally claimed information as
         confidential business information (CBI), XYZ shall
         specifically exclude the information from such CBI
         classification for the limited purpose of review by the
         Neutral Fact-finder.]
                   -RETYPED FROM THE ORIGINAL-

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                               -5-                      9834.12
    (c)  No determination of the Neutral Fact-finder shall be
         admissible as evidence of any issue of fact or law in any
         proceeding brought under any provision of [state statute]
         or any other provision of law.

7.  Appeals Procedures'                              

    (a)  Any party may appeal the determination of the Neutral
         Fact-finder within thirty days of notification of such
         determination.   Any such appeal shall be made to the
         [Chief Judicial Officer, U.S. Environmental Protection .
         Agency, or district court judge].

    (b)  The determination of ithe .Neutral' Fact-finder shall be
         binding and conclusive, and shall not be overturned
         unless achieved through fraud, misrepresentation, other
         misconduct by the Neutral Fact-finder or by any of the
         parties, or mutual mistake of fact.  The [administrative
         law judge or federal.district court judge]  shall not have
         jurisdiction to review the determination unless there is
         a verified complaint with supporting affidavits filed by
         one of the parties attesting to specific instances of
         such fraud, misrepresentation, other misconduct, or
         mutual mistake of fact.

8.  Administrative Fees. Expenses, and Neutral Fact-finder's Fee

    (a)  The fees and expenses of the Neutral Fact-finder, and of
         the NAO, shall be borne equally by the parties.  The
         parties may employ additional neutral organizations to
         administer these ADR procedures as mutually deemed
         necessary, with the fees and expenses of such
         organizations borne equally by the parties.

    (b)  The NAO shall prescribe an Administrative Fee Schedule
         and a Refund Schedule.  The schedules in effect at the
         time of the joint request for fact-finding shall be
         applicable.  The filing fee, if required/-shall be
         advanced by the parties to the NAO as part of the joint
         request for fact-finding.  If a matter is settled,  a
         refund shall be made in accordance with the Refund
         Schedule.

    (c)  Expenses of providing information to the Neutral Fact-
         finder shall be borne by the party producing such
         information.

    (d)  The per diem fee for the Neutral Fact-finder shall be
         agreed upon by  the parties and the NAO prior to the
         commencement of any activities by the Neutral Fact-
         finder.  Arrangements for compensation of the Neutral
         Fact-finder shall be made by the NAO.
                   -RETYPED FROM THE ORIGINAL-:

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                               -6-                      9834.12


9.  Miscellaneous Provisions

    (a)  Before the selection of the Neutral Fact-finder, all oral
         or written communications from the parties for the
         Neutral Fact-finder's consideration shall be directed to
         the NAO for eventual transmittal to the Neutral Fact-
         finder.

    (b)  All papers connected with the fact-finding shall be
         served on the opposing party either by personal service
         or United States nail, First Class.

    (c)  The Neutral Fact-finder shall be disqualified from acting
         on behalf of either party, and his or her determination
         pursuant to these ADR procedures shall be inadmissible
         for all purposes, in any other dispute involving the
         parties.

    (d)  Any notification or communication between the parties, or
         with and by the Neutral Fact-finder shall be confidential
         and entitled to the same privileges that apply generally
         to settlement negotiations.
                   -RETYPED FROM THE ORIGINAL-

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                                         OSWER Directive No.  9832.20-la
                           February 12, 1991
MEMORANDUM

SUBJECT:   Policy on the Use of Supplemental Enforcement Projects in
           EPA Settlements

FROM:      James M. Strock
           Assistant Administrator

TO:        Regional Administrators
           Deputy Regional Administrators
           Regional Counsels
           Regional Program Division Directors
           Assistant Administrators
           General Counsel
           Program Compliance Directors
           Associate Enforcement Counsels

      This memorandum transmits  the new Agency policy  on the  use of
"supplemental environmental projects" in Agency consent orders and
decrees.  It amends GM-22, "A Framework for Statute-Specific
Approaches to Penalty Assessments:  Implementing EPA's Policy on Civil
Penalties" (issued February 16, 1984), by replacing and superseding
the section on "Alternative Payments" on pages 24-27 of that document.
Please note that this policy amends only the section on "alternative
payments" and that all-other sections of GM-22 remain in effect.

      In the past,  the Agency  has  used several terms to  describe
substantive settlement conditions  (usually projects or activities),
other than those required as inlunctive relief to correct the
underlying violation, which the defendant/respondent may undertake in
exchange  for a reduction in the amount of the assessed civil penalty.
In GM-22, these conditions are called "alternative payments."  They
also have periodically been referred to as  "mitigation projects" or
"environmentally beneficial expenditures."  The Agency's past
experience with these projects has  sometimes been problematic, in part
because GM-22 did not fully describe the kinds of projects that are
appropriate for penalty reduction,  the situations under which they
should be considered, and the amount by which the penalty demand can
be reduced.

      The Agency  believes  that these projects,  if  carefully crafted  and
executed, provide useful environmental benefits beyond what can be
secured solely through injunctive relief.  We particularly believe.
they can be a useful vehicle in promoting pollution prevention.  Last
year, the Office of Enforcement explored with the Environmental
Management Counsel major issues relating to the use of  "alternative
payments," and since then has worked closely with the Environment and


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Natural Resources Division of the Department of Justice to develop
this new policy on the systematic use of these projects.  This policy
applies to both administrative and judicial settlements.

      In order to  provide  a  common term of  reference,  this policy
replaces the term "alternative payment" with the general term
"supplemental environmental project."  The policy describes five
specific categories of projects which the Agency will consider as
supplemental environmental projects in a settlement:  pollution
prevention; pollution reduction; environmental restoration;
environmental auditing; and public awareness.  It also provides a
number of specific examples of supplemental projects.

      I  am  confident  that  this new policy on  "supplemental
environmental projects" will enable the Agency to secure additional
protection of human health and the environment while avoiding the
difficulties which occasionally characterized their past use.  This
policy takes effect immediately, and media-specific policies will be
modified to conform to this policy as quickly as possible.   Any
questions you have regarding its implementation should be addressed to
Ed Reich, the Deputy Assistant Administrator for Enforcement or to
Scott Fulton, Senior Enforcement Counsel.

Attachment

cc:   Deputy  Administrator
      Associate Deputy Administrator
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      EPA POLICY ON THE USE OF SUPPLEMENTAL
ENVIRONMENTAL PROJECTS IN ENFORCEMENT SETTLEMENTS
                                           February 12, 1991
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                  Supplemental Environmental Projects

A.    Introduction

      In settlement  of environmental  enforcement  cases,  the  United
States will insist upon terms which require defendants to achieve and
maintain compliance with Federal environmental laws and regulations.
In certain instances, additional relief in the form of projects
remediating the adverse public health or environmental consequences of
the violations at issue may be included in the settlement to offset
the effects of the particular violation which prompted the suit.  As
part of the settlement, the size of the final assessed penalty may
reflect the commitment of the defendant/respondent to undertake
environmentally beneficial expenditures ("Supplemental Environmental
Projects").

      Even when such conditions  serve as a  basis  for  considering a
Supplemental Environmental Project, the Agency's penalty policies will
still require the assessment of a substantial monetary penalty
according to criteria described in A Framework for Statute-Specific
Approaches to Penalty Assessments: Implementing EPA's Policy on Civil
Penalties (GM-22), generally at a level which captures the
defendant/respondent's economic benefit of noncompliance plus some
appreciable portion of the gravity component of the penalty.  Each
administrative settlement in which a "horizontal" Supplemental
Environmental Project or substitute performance is proposed  (see
below) must be approved by the Assistant Administrator for
Enforcement, and, where required by the Agency's delegations policy,
the media Assistant Administrator.  Judicial settlements, including
any of the projects described herein, will continue to require the
approval' of the Assistant Administrator for Enforcement and also be
approved by the Assistant Attorney General for the Environment and
Natural Resources Division.

      EPA will  expand its approach to Supplemental  Environmental
Projects while also maintaining a nexus (relationship) between the
original violation and the supplemental project.  EPA may approve a
supplemental project so long as that project furthers the Agency's
statutory mandates to clean up the environment and deter violations of
the law.1 Accordingly,  supplemental  projects may be  considered if:
(1) violations are corrected through actions to ensure future
compliance;  (2) deterrence objectives are served by payment of a
substantial monetary penalty as discussed above; and  (3) there is an
appropriate "nexus" or relationship between the nature of the
     1 A supplemental project cannot be used to resolve violations at a
facility other than the facility or facilities which are the subject
of the enforcement action.  This would run counter to deterrence
objectives, since it would effectively give a company a penalty
"break" for violations at one facility for undertaking what amounts to
legally required compliance efforts at another facility.  Such a
scenario would operate to reward recalcitrance, poor-management
practices, and non-compliance.

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violation  and  the  environmental benefits to be derived from the
supplemental project.

      All supplemental projects must improve the injured environment or
reduce  the total risk burden posed  to public health or the environment
by  the  identified  violations.  The  five categories of permissible
supplemental activities are pollution prevention, pollution reduction,
environmental  restoration, environmental auditing projects, and public
awareness  projects which are directly related to addressing compliance
problems within the  industry within which the violation took place.
EPA negotiators should make it clear to a defendant/respondent
interested in  proposing a supplemental project that the Agency is
looking only for these types of projects  (cf. section F, below).

      Under no  circumstances will  a  defendant/respondent  be given
additional time to correct the violation and return to compliance in
exchange for the conduct of a supplemental project.

B.    Categories  of Supplemental Environmental  Projects

      Five  categories of projects  will  be  considered  as potential
Supplemental Environmental Projects, subject to meeting the additional
criteria described in succeeding  sections.

      1.    Pollution Prevention Projects

      Consistent  with the Agency's forthcoming  Pollution  Prevention
Policy  Statement and  Pollution Prevention Strategy, a pollution
prevention project substantially  reduces or prevents the generation or
creation of pollutants through use  reduction (i.e., by changing
industrial  processes, or by substituting different fuels or materials)
or  through application of closed-loop processes.  A project which
substantially  reduces the discharge of generated pollutants through
innovative  recycling technologies may be considered a pollution
prevention project if the pollutants are kept out of the environment
in  perpetuity.

      2. .   Pollution Reduction Projects

      A  pollution reduction project  is  defined  as a project which goes
substantially beyond compliance with discharge limitations to further
reduce  the amount of pollution that would otherwise be.discharged into
the environment.   Examples include a project that reduces the
discharge of pollutants through more effective end-of-pipe or stack
removal technologies; through improved operation and maintenance;  or
recycling of residuals at the end of the pipe.2
     2  Where the obligation to reduce the pollution is  already
effective, or is subject to an "as soon as practicable" or comparable
standard, a proposal to further reduce pollution would not fulfill the
definition of a pollution reduction project, and would not be
appropriate.

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      Sometimes an acceptable pollution reduction project may encompass
an  "accelerated compliance project."   For instance, assuming there is
a statutory or regulatory schedule for pollution phaseout or reduction
 (or is  likely to be proposed  in the foreseeable future,  e.g., an
upcoming rulemaking),  if a defendant/respondent proposes to complete a
phaseout or reduction  at least 24 months ahead of time,  and such
proposal for accelerated compliance can be demonstrated  to result in
significant pollution  reduction  (i.e., one can objectively quantify a
substantial amount of  pollution reduction due to the accelerated
compliance) then such  a proposal may proceed to be evaluated according
to the  rest of the appropriateness criteria below.  In addition, if
the defendant/respondent substitutes another substance for the one
being phased out, he has the  burden to demonstrate that  the substance .
is non-polluting, otherwise no supplemental environmental project will
be allowed and, indeed, additional liability may accrue.

      3.   Projects Remediating Adverse Public Health or Environmental
           Consequences (Environmental Restoration Projects)

      An environmental  restoration project  is  defined  as  a project  that
not only repairs the damage done to the environment because of the
violation, but which goes beyond repair to enhance the environment in
the vicinity of the violating facility.

      4.   Environmental Auditing Projects

      Environmental Auditing  that  represents general good business
practices are not acceptable  supplemental projects under this policy
 (cf. Section E) .3  However,  such a project  may be considered  by the
Agency  if the defendant/respondent undertakes additional auditing
practices designed to  seek corrections to existing management and/or
environmental practices whose deficiencies appear to be contributing
to recurring or potential violations.  These other potential
violations may encompass not  only the violating facility, but other
facilities owned and operated by the defendant/respondent, in order to
identify, and correct  as necessary, management or environmental
practices that could lead to  recurring or future violations of the
type which are the basis for  the enforcement action.4

     Audit projects  which fall within  the  scope  of this  policy  can be
justified as furthering the Agency's legitimate goal of encouraging
compliance with and avoiding, as well as detecting,  violation of
federal environmental  laws and regulations.  Such audits will not,
however, be approved as a supplemental project in order to deal with
similar, obvious violations at other facilities.
     3  It  should be noted that the Agency has  the authority to require
an environmental audit as an element of injunctive relief when it
deems it appropriate given the fact pattern surrounding the violation
subject to the usual limits on the scope of injunctive relief.

     4  Of  course,  this  requirement is  subject  to the  qualifications  of
footnote 1.

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      5.    Enforcement-Related Environmental Public Awareness Projects

      These projects  are defined as publications, broadcasts, or
seminars which underscore for the regulated community the importance
of complying with environmental laws or disseminate technical
information about the means of complying with environmental laws.
Permissible public awareness projects may include sponsoring industry-
wide seminars directly related to correcting widespread or prevalent
violations within an industry, e.g.,  a media campaign funded by the
violator to discourage fuel switching and tampering with automobile
pollution control equipment or one which calls for the
defendant/respondent to organize a conference or sponsor a series  of
public service announcements describing how violations were corrected
at a facility through the use of innovative technology and how similar
facilities could also implement these production changes.

      Public Awareness  Projects directly  serve Agency deterrence
objectives and contribute indirectly to Agency enforcement efforts.
Though they are not subject to the nexus requirement applicable to
other supplemental environmental projects, they must be related to the
type of violations which are/were the subject of the underlying
lawsuit.  Defendants/respondents who fund or implement a public
awareness project must also agree to publicly state in a prominent
manner that the project was undertaken as part of the settlement of a
lawsuit brought by the Agency or a State.  These projects will be
closely scrutinized to ensure that they fulfill the legitimate
objectives of this policy in all respects.

      6.    Projects Not Allowed as Supplemental Projects

      Several  types of  projects, which  have  been proposed in  the past,
would no longer be approvable Supplemental Environmental Projects.
Examples of projects that would not be eligible include:

           1.    general educational  or environmental awareness-raising
                projects  (e.g., sponsoring  public  seminars about,  or
                inviting  local schools to tour, the environmental
                controls  at a facility;  promoting  recycling  in a
                community);

           2.    contribution  to research at a college or university
                concerning the environmental area  of noncompliance or
                concerning any other area of.environmental study;

           3.    a project unrelated  to the  enforcement  action, but
                otherwise beneficial to  the community e.g.,  contribute
                to local  charity).

C.    "Nexus"  (Relationship) of Supplemental Environmental Project  to
      the Violation

      The categories  of Supplemental  Environmental  Projects described
above (except for Public Awareness Projects) may be considered if
there is an appropriate "nexus" or relationship between the nature of


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the violation and the environmental benefits to be derived from the
type of supplemental project.  For example,  the "nexus" between the
violation and an environmental restoration project exists when it
remediates injury caused by the same pollutant at the same facility
giving rise to the violation.  Such projects must further the Agency's
mission as defined by appropriate statutory mandates, including the
purpose sections of the various statutes under which EPA operates.
The Agency will evaluate whether the required "nexus" between the
pollutant discharge violation and the project exists.

      1.    Recruirements for Remediation Projects

      Examples  of  circumstances presenting an  appropriate nexus
include:

      a.    A project requiring the purchase of wetlands which then act
           to purge pollutants unlawfully discharged in receiving
           waters.  In this example, EPA will evaluate whether the
           required "nexus" between the pollutant discharge violations
           and the wetlands to be purchased can be established.  EPA
           will evaluate the nexus between the project and the
           violation in terms of both geography and the pollution
           treatment benefits of the wetlands.

      b.    A project which calls for the acquisition and preservation
           of wetlands in the immediate vicinity of wetlands injured by
           unlawful discharges, in order to replace the environmental
           services lost by reason of such injury.

      c.    A "restoration" project, such as a stream sediment
           characterization or remediation program to determine the
           extent and nature of pollution caused by the violation and
           to formulate and implement a plan for remediating sediment
           near the facility.  Such a stream sediment characterization
           or restoration project, if obtainable as injunctive relief
           pursuant to the statutory provisions of the Clean Water Act
           in the particular case, would not be approvable as a
           supplemental project.

      2.    Nexus for Pollution Prevention/Pollution Reduction/
           Environmental Restoration/Environmental Auditing Projects

      The  "nexus"  for  pollution prevention,  pollution reduction,
environmental restoration and environmental auditing projects may
either be vertical or horizontal, as described below.

      a.    Vertical "Nexus"

      A  "vertical"  nexus  exists when the supplemental project  operates
to reduce pollutant loadings to a given environmental medium to offset
earlier excess loadings of the same pollutant in the same medium which
were created by the violation in question.  Even if the violations are
corrected by reducing pollutant loadings to the levels required by
law, further reductions may be warranted in order to alleviate the


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risk to the environment or public health caused by past excess
loadings.  Typically, such projects follow a violation back into the
manufacturing process to address the root cause of the pollution.
Such reductions may be obtained from the source responsible for the
violation or, in appropriate cases, may be obtained from another
source, either upstream, upgradient or upwind of the responsible
source.

      For  example,  if pollutants were discharged in violation  of  the
Clean Water Act from a facility at a certain point along a river, an
acceptable pollution reduction project would be to reduce discharges
of that same pollutant at an upstream facility on the same river.
Another classic example of a "vertical" pollution prevention activity
is the alteration of a production process at a facility which handles
a portion of the manufacturing process antecedent to that which caused
the violation of the regulatory requirement in a way that yields
reductions or total elimination of the residual pollutant discharges
to the environmental media assaulted by the violation.  Both of these
examples present the necessary nexus between the violation and the
supplemental project.

      b.    Horizontal "Nexus"

      A "horizontal"  nexus  exists when  the  supplemental project
involves either (a) relief for different media at a given facility or
(b) relief for the same medium at different facilities.  The nexus
between supplemental projects in this category and the violation must
be carefully scrutinized.  The nexus will be met only if the
supplemental project would reduce the overall public health or
environmental risk posed by the facility responsible for the violation
or enhances the prospects for reducing or eliminating the likelihood
of future violations substantially similar to those which are the
basis for the enforcement action.   Approval of such projects is
appropriate only where the terms of the settlement insure that the
defendant/respondent will be subject to required injunctive relief
prescribed by the compliance and deterrence policies stated in the
various Acts and their implementing regulations.  In those
circumstances, the Agency believes the required nexus to the statutory
goals has been met.

      Following are examples  of approvable projects demonstrating a
"horizontal" nexus to the violation:

1.    Violations of the Resource Conservation and Recovery Act  (RCRA)
      or the Clean Water Act  may have exposed the neighboring  community
      to increased health risks because of drinking water
      contamination.   In addition to correcting these violations, it
     may be appropriate to reduce  toxic air emissions from the same
      facility in order to  compensate for the excess health risk  to the
      community which resulted from the RCRA or CWA violations.

2.   A supplemental  project  is proposed which reduces pollutant
     discharges at a defendant/respondent's other facilities within
      the same air quality basin or watershed as at the facility  which


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     violated legal  requirements  applicable  to releases of the same
     pollutant.   In  this  case,  the  overall supplemental project would
     be  designed  to  reduce  the  overall health or environmental risk
     posed by related operations  to the  environment or to the health
     of  residents in the  same geographic vicinity by reducing
     pollutant discharges to the  air basin or watershed and to
     compensate for  past  excess discharges.

3.   A supplemental  project is  proposed  which reduces pollutant
     discharges at a defendant/respondent's  other  (non-violating)
     facility(ies).   Such a project would be approvable where the
     violating and non-violating  facilities  are engaged in the same
     production activities  and  use  the same  production processes,
     where appreciable risks of violations and legal requirements
     applicable to releases of  that same pollutant substantially
     similar  to those at  the violating facility are posed by the non-
     violating facility(ies), and where  the  defendant/respondent can
     establish that  significant economies of scale would be achieved
     by  incorporating pollution prevention process changes at both the
     violating and non-violating  facilities.  Alternatively, the
     settlement could call  for  the  defendant/respondent to substitute
     input chemicals across all such facilities  (e.g., replace higher
   .  toxic solvents  with  lower  toxic solvents at all paint
     manufacturing plants)  or to  reduce  the  emissions loadings of
     particular emissions at all  such facilities .as part of a NESHAPs
     settlement.   Such projects would, therefore, reduce the overall
     health or environmental risk posed  by such operations to the
     environment  or  to the  health of residents in the same geographic
     vicinity.

4.   In  settlement of a Toxic Substances Control Act (TSCA) PMN
     (premanufacture notification)  violation for manufacturing a
     polymer  without providing  formal advance notice at a facility,
     the defendant/respondent could establish a closed loop recycling
     system to reduce the amount  of that facility's product
     manufacturing waste  which  must be sent  to a RCRA Subtitle C
     landfill.  Operating the facility in violation of TSCA created a
     risk of  unwarranted  health or  environmental injury.  If TSCA
     penalty  and  injunction, requirements have been met, then the
     supplemental project could be  justified on the grounds that it
     would compensate for this  unwarranted risk by reducing the
     overall  health  or environmental risk presented by. the facility.

     After the project category and "nexus"  criteria have been met, a
     potential supplemental project must also meet the criteria
     described in the following sections, below.  Most of the
     conditions below applied in  the past, but some are new.  All of
     these conditions must  be met before a supplemental project may be
     accepted.
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                                   8

D.    Status  of  the  Enforcement Action/Compliance History of
      Defendant/Respondent

      Any  defendant/respondent against whom the Agency has taken an
enforcement action may propose to undertake a supplemental project at
any time prior to resolution of the action,  although the Agency should
consider both the status of the litigation/administrative action and
the resources that have been committed to it before deciding whether
to accept it.  In addition, the respondent's enforcement history and
capability to successfully complete the project must be examined
during evaluation of a supplemental project proposal.

      The  Agency negotiators must  also consider whether  the
defendant/respondent has the technical and economic resources needed
to successfully implement the supplemental project.  In addition,  a
respondent who is a repeat offender may be a less appropriate
respondent from which to receive and evaluate a supplemental project
proposal than a first-time violator.

E.    Main Beneficiary  of a Supplemental  Environmental Project

      The  Federal  Government's sole  interest  in considering
supplemental projects is to ameliorate the adverse public health
and/or environmental impacts of violations.   Projects are not intended .
to reward the defendant/respondent for undertaking activities which
are obviously in his economic self-interest  (e.g.,  update or modernize
a plant to become more competitive).  Therefore,  as a general rule,
these projects will usually not be approved when they represent a
"sound business practice," i.e.,  capital expenditures or management
improvements for which the Federal negotiators may reasonably conclude
that the regulated entity,  rather than the public,  is likely to
receive the substantial share of the benefits which accrue from it.

      The  only  exception to the prohibition against acceptance  of  a
supplemental project which represents a  "sound business practice" is
for a pollution prevention project.   Although a pollution prevention
project can be viewed as a "sound business practice" since (by
definition) it is designed both to make production more efficient and
reduce the likelihood of noncompliance,  it also has the advantage of
potentially providing significant long-term environmental and health
benefits to the public.  Therefore,  the  "sound business practice"
limitation will be waived only for pollution prevention projects if
the Federal negotiators decide,  after due consideration and upon a
clear demonstration by the defendant/respondent as to what the public
health and/or environmental benefits would be, that those benefits are
so substantial that the public interest would be best served by
providing additional incentives to undertake the project.

F.    Extent  to  Which the Final Assessed  Penalty  Can  Reflect  a
      Supplemental Environmental  Project

      Although  supplemental projects may  directly fulfill EPA's goal  of
protecting and restoring the environment, there is an important
countervailing enforcement goal that penalties should have the


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strongest possible deterrent effect upon the regulated community.
Moreover, the Agency's penalty policies require the assessment of a
substantial monetary penalty according to criteria described in
"Implementing EPA's Policy on Civil Penalties" (GM-22), generally at a
level which captures the defendant/respondent's economic benefit5  of
noncompliance plus some appreciable portion of the gravity component
of the penalty.6

      In  addition,  EPA  must not  lower  the amount  it decides to  accept
in penalties by more than the after-tax amount the violator spends on
the project.  EPA should calculate the net present after tax value of
the supplemental project at the time that the assessed penalty is
being calculated.  If a supplemental project is approved, a portion of
the gravity component of the penalty may be mitigated by an amount up
to the net present after-tax cost of the supplemental project,
depending on the level of environmental benefits to the public.

G.    Supplemental  Environmental Projects for  Studies

      Supplemental  Environmental Projects for  studies will not  be
allowed without an accompanying commitment to implement the results.
First, little or no environmental benefit may result in the absence of
implementation.  Second, it is also quite possible that this type of
project is one which the violator could reasonably be expected to do
as a  "sound business practice."

      Pollution prevention, pollution  reduction and environmental
restoration studies, as well as environmental audits, are defined
narrowly for purposes of meeting Supplemental Environmental Project
policy guidelines.  They will only be eligible as supplemental
projects if they are a part of an Agency-approved set of actions to
reduce, prevent, or ameliorate the effects of pollution at the
respondent's facility  (e.g., a comprehensive waste minimization or
emissions reduction program).  The amount attributable to a
supplemental project may include the costs of necessary studies.
Nonetheless, a respondent's offer to conduct a study, without an
accompanying commitment to implement the results, will not be eligible
for penalty reduction.  In considering the applicability of a proposed
study, the Agency negotiators will consider the likelihood of success,
i.e., substantial pollution reduction or prevention,  in making a
det ermi na t i on.
     5  Where a violation is found which did not confer a significant
economic benefit, e.g. a failure to notify, the settlement must still
include payment of a penalty which at least captures a portion of the
proposed gravity component.

     6  If a defendant/respondent can establish through use of documents
and affidavits sworn under penalty of perjury that ts cannot afford to
pay the civil penalty derived from use of the appropriate civil
penalty policy, the Agency will consider entering into an "ability to
pay settlement" for less than the economic benefit of non-compliance.

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                                   10

      While studies are not by themselves eligible supplemental
 environmental projects,  to encourage pollution prevention, EPA will
 make  a  limited  exception to this  general  approach  for pollution
 prevention studies.   Such studies will be eligible for a penalty
 offset  when they  are  part of an Agency-approved  set of pollution
 prevention activities at a facility  and are designed to correct the
 violation  (e.g.,  a recycling feasibility  study,  waste minimization
 opportunity assessment,  or waste  reduction audit).

      The size of the penalty offset  may include the costs of the
 studies.   The commitment to conduct  the study also must be tangible
 (e.g.,  the project completed on schedule, etc.).   The U.S. must have
 the authority to  review  the completed study to decide whether  it  is
 technologically and/or economically  feasible to  implement the  results.
 Should  the U.S. decide that the results can be implemented but the
 defendant/respondent  is  unwilling to do so, the  "offset" for the
 pollution  prevention  study will be rescinded and the final assessed
 penalty must be paid  in  full (cf. Section J on payment assurance).

 H.    Substitute Performance of Supplemental  Environmental Projects

      A supplemental environmental project which meets  the other
 criteria of this  policy  may consist  in part or whole of substitute
 performance by  an entity or entities other than  the violator.  Such a
 substitute must bear  a reasonable geographical or  media-specific
 relationship to the underlying violation.  This  substitute performance
 must  be assured through  agreements which  are enforceable by EPA,   and
 may consist of  agreements  for emissions limits, process design or
 input changes, natural resource preservation or  conservation
 easements,  or other means  of achieving compliance  with the terms  of
 the proposed supplemental  environmental project.   In the event a
 violator proposes  acceptable substitute performance, EPA will credit
 the violator with an  amount  up to the net after  tax cost of the
 project as  if it  were  being performed by  the violator.  The violator,
 will, however, remain  responsible for the performance of the project
 or the payment of  the  penalty offset if substitute performance is not
 completed.

 I.    Level of Concurrence

      There may  be practical problems in administering cross-media
 and/or  cross-regional  projects.   Staff allocations for.oversight
 requirements will necessarily increase,  as will the level of resources
 needed  for  tracking purposes since tracking a supplemental project is
more complex than  tracking whether a payment is made.   In addition,
 the likelihood of new  issues emerging due to noncompliance with the
 conditions of the project  is significant.

      The extent of coordination/concurrence for  a  supplemental project
which involved more than one Region will vary according to the nature
and complexity of the proposal.  All affected Regions must be notified
about a supplemental project which would have only a modest impact on
 facilities  in those Regions  (e.g., a commitment to undertake an
environmental audit at all of the defendant/respondent's facilities


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                                   11

 across  the  country).   However,  all  affected Regions would have to
 concur  in a proposed  supplemental project which would involve
 significant oversight  resources or  activities  (e.g., a pollution
 prevention  activity which  required  major construction or process
 changes).   Also,  all  affected  EPA parties must be consulted on their
 respective  oversight  responsibilities.  As stated previously, judicial
 settlements,  including any of  the projects described herein, will
 continue to require the approval of the Assistant Administrator for
 Enforcement and also  be approved by the Assistant Attorney General for
 the  Environment and Natural Resources Division.

      Each proposed administrative settlement  which has  a "horizontal"
 nexus to the  violation or  which involves substitute performance also
 must be approved  by the Assistant Administrator for Enforcement and,
 where required by the  Agency's  delegations policy, the media Assistant
 Administrator.

 J.    Overs ight/Tracking

      Supplemental Environmental Projects may  require  third-party
 oversight.  In such cases,  these oversight costs should be borne by
 the  respondent, and it must agree as a part of the settlement to pay
 for  an  independent, third-party auditor to monitor the status of the
 supplemental  project.   The auditor  will be required by the settlement
 to submit specific periodic reports, including a final report
 evaluating  the success or  failure of the supplemental project, and the
 degree  to which the project satisfied these guidelines.  All reports
 must be submitted to  EPA.  Upon request, EPA may provide copies of the
 reports, or copies of  portions  of the reports, to the respondent.   The
 timing  and  amount  of reports released to the defendant/respondent
 shall be at EPA's  sole discretion.

      Obviously,  a certain  amount of government  oversight will be
 required to monitor compliance  with the terms of an agreement that
 contains a  supplemental  project.  "Horizontal" pollution prevention or
 pollution reduction supplemental projects which involve more than one
 Region  (e.g., production changes at more than one facility)  may
 require additional oversight, and the estimated amount of time and
 resources required for effective oversight is another criteria which
 the  negotiators should use to determine whether to include the project
 in the  settlement agreement.

     The consent  order or  decree shall  specify  overall  timeliness and
milestones  to be met in  implementing the supplemental project.  If the
defendant/respondent does  not comply satisfactorily with the terms of
the  supplemental project,  he shall be liable for the amount by which
the  assessed penalty was reduced (with applicable interest).  The
consent order or decree  should  contain a mechanism for assuring prompt
payment, e.g., through stipulated penalties consistent with the other
 sections of this policy  or, if  appropriate,  the posting of a bond (in
the  amount by which the  assessed penalty was reduced)  to be forfeited
if the supplemental project is not  fully implemented.
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                                   12

K.    Documenting  Approval  of  Supplemental  Environmental  Project
      Proposals

      In all  cases where  supplemental projects are  approved as part of
the settlement,  the case file should contain documentation showing
that each of the appropriateness criteria listed above have been met
in that particular case.   A copy of the evaluation and approval
document shall be sent to the Office of Enforcement and the National
Compliance Officer concurrent with the approval of the Regional
Administrator, or other authorized approving official, and to the
Assistant Attorney General for the Environment and Natural Resources
Division.

L.    Coverage of  This  Policy

      This document revises and  supersedes  the appropriate sections of
the Agency's general civil penalty policy  (GM-22),  and constitutes
Agency policy relating to supplemental environmental projects.   Media-
specific penalty policies will be revised as soon as possible to be
consistent with it.  During this interim period, in the event of any
conflict between this general policy and a media-specific policy, this
policy is controlling.
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      Section 13
Violation Classification

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VIOLATION CLASSIFICATION
                                                         CO
                                                         w
                                                         O
                                                         O
                                                         2!

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     Section  13 - Violation  Classification  -  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
Enforcement Response Policy
9900.0-13
10/01/88
OWPE

Administrative Orders/Administrative Authorities
Civil/Criminal Actions
Federal Facilities
Federal/State Relations
Referrals

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    Section 13  -  Violation  Classification - Cross References
(Documents that are referenced under Violation Classification but appear in the
Primary Section indicated)
  TITLE



  DIRECTIVE NO.

  SOURCE

  PRIMARY
  SECTION
  is^sssssss
  TITLE



  DIRECTIVE NO.

  SOURCE

  PRIMARY
  SECTION
  &$$$$&
  TITLE
 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
 OSWER

 Financial Responsibility
 Guidance on Developing Compliance Orders Under Section 3008 of RCRA:
 Enforcement of Ground Water Monitoring Requirements at Interim Status Facilities
 OWPE

 Ground Water

SsisSssiSS^Ssig^SgSSS
 RCRA Ground Water Monitoring Compliance Order Guidance
  DIRECTIVE NO.

  SOURCE

  PRIMARY
  SECTION
9931.1

OWPE

Ground Water

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                                   9900.0-1A
ENFORCEMENT RESPONSE POLICY



       December, 1987

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                                                  9900.0-1A




                        TABLE OF CONTENTS

                                                           Page

I.    INTRODUCTION

II.   RELATIONSHIP TO OTHER AGENCY  POLICY  AND  GUIDANCE       2

III.  APPROPRIATE ENFORCEMENT RESPONSE CONSIDERATIONS        3

      A.  VIOLATION DEFINITIONS                              4

      B.  VIOLATOR DEFINITIONS AND  ENFORCEMENT RESPONSES     5

          1.  HIGH PRIORITY VIOLATORS                        5

          2.  MEDIUM PRIORITY VIOLATORS                      6

          3.  LOW PRIORITY VIOLATORS                         7

          CHARACTERISTICS OF HIGH PRIORITY VIOLATORS        7

          HPV ENFORCEMENT RESPONSE                           9

      C.  TIMEFRAMES                                        12

           1.  VIOLATION DISCOVERY  TIMEFRAME                13

           2.  HPV FORMAL ENFORCEMENT TIMEFRAME            14

           3.  CIVIL REFERRAL TO FILING  TIMEFRAME    .      15

IV.   ESTABLISHING PRIORITIES                               15

V.    EPA ACTION IN AUTHORIZED STATES                       16

          STATE REFERRALS TO REGIONS                        17

VI.  EPA ACTION AT FEDERAL FACILITIES                       18
      ENFORCEMENT RESPONSE TIMELINES
                          - HIGH  PRIORITY VIOLATORS
                          - MEDIUM  PRIORITY VIOLATORS

      APPENDIX.  EXAMPLES OF  VIOLATION CLASSIFICATION

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                                                       9900.0-1A


 I.   INTRODUCTION

      In December of 1984, the Office of Solid Waste and Emergency
 Response issued the first RCRA Enforcement Response Policy  (ERP).
 The  ERP strengthened the RCRA enforcement program by establishing
 a scheme for classifying RCRA violations and violators, providing
 guidance on timely and appropriate enforcement response, and
 delineating conditions for EPA enforcement action in authorized
 States.  The policy espoused the concept of quickly escalating
 an action when compliance was not achieved.

      The policy was intended to establish an approach for
 strengthening the RCRA enforcement program by concentrating
 efforts on the most serious violators.  The State/EPA was required
 to subject High Priority Violators (HPV) to formal enforcement
 action and penalty assessment.

      After almost three years of policy implementation, it  is clear
 that  the program has made significant strides in enforcing  against
 the more serious violations, particularly in the areas of ground-
 water monitoring, closure/post-closure, and financial responsibility.
 This  period of policy implementation has also provided the
 opportunity to evaluate this policy.

      Since the development of the original ERP, new program
 initiatives have developed as provisions of the 1984 HSWA Amendments
 have  become effective.  The December, 1984 ERP placed priority on
 enforcement against interim status land disposal facilities which
 were  out of compliance with ground-water monitoring, closure/post-
 closure or financial responsibility requirements.   HSWA and
 overall development of the RCRA program has mandated closer
 scrutiny of additional segments of the regulated community  and other
 types of violations.  This expansion of focus requires a broadening
 of programmatic emphasis.  For example, corrective action require-
 ments and land disposal restrictions direct more attention  to
hazardous waste treaters, storers and generators,  as well as to
 land disposal facilities.

     These and other program changes will cause a .major shift
 in the nature of the compliance monitoring and enforcement program
over the next few years.  The majority of the RCRA land disposal
 facilities are closing as the 1988 permitting deadline approaches.
Many of these, as well as facilities being permitted, will be
under schedules of compliance to perform corrective action.
Facilities seeking permits will be subject to permit conditions
specifically tailored to operations at each individual facility.
The land disposal of many wastes will no longer be permitted -
generators will have greater responsibility regarding the dispo-
sition of their wastes.  These and other major changes occurring
in the RCRA-regulated universe demand new inspection strategies
and the redefinition and expansion of some of our "serious
violation" definitions.

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                                                     9900.0-1A

                               -2-

     As before, the goal of the RCRA compliance monitoring and
enforcement program is the attainment and maintenance of a high
rate of compliance within the regulated community by establishing
a comprehensive inspection program and by taking timely, visible,
and effective enforcement actions against serious violators.
The goal of the enforcement action against the violator is to
return the facility to compliance as quickly as possible and
deter potential violators through high visibility enforcement
actions which impose economic sanctions to penalize violators.
The removal of any economic advantage or savings accrued by
noncompliance through the use of economic sanctions is also
part of the goal of any enforcement action against the most
serious violators.  (The RCRA Penalty Policy provides guidance
on calculating the appropriate penalty.)  The revised ERP emphasizes
the need, not only to take timely enforcement action, but more
importantly,  to assure that the action results in a return to
compliance.

     The Enforcement Response Policy provides response guidance .
on civil actions - both administrative and judicial - pursuant
to Federal and State enforcement efforts.  It addresses only
responses to violations of RCRA requirements.  Use of 3013 to
compel monitoring, testing and analysis and 7003 for addressing
situations that may present imminent hazards to human health or
the environment is set out in the policies on "Issuance of  .
Administrative Orders under Section 3013 of the Resource Conserva-
tion and Recovery Act" (9/26/84) and "Issuance of Administrative
Orders Under Section 7003 of the Resource Conservation and Recovery
Act" (9/21/84).  The use of 3008(h) for addressing releases at
interim status facilities is discussed in "RCRA Section 3008(h):-
The Interim Status Corrective Action Authority" (12/16/85).
While not initially applicable to 3013, 7003, or 3008(h)
actions, ERP guidance does apply when RCRA orders, decrees, or
judgments issued under any RCRA provision are violated.

     The policy and procedures set forth in this document are
intended solely for the guidance of employees of the Environmental
Protection Agency and State Enforcement Agencies.  They are not
intended to,  nor do they, 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 revised RCRA Enforcement Response Policy will be
effective in FY 1989.
II. THE ERP's RELATIONSHIP TO OTHER AGENCY POLICIES AND GUIDANCES

     The RCRA Enforcement Response Policy is one of several
documents that, together, define the national RCRA Enforcement
Program.  The ERP provides a general framework for identifying
violations and violators of concern and describing timely and

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                                                        9900.0-1A
                               -3-

appropriate enforcement responses to noncompliance.   It should
be read in conjunction with the RCRA Implementation Plan (RIP),
which establishes annual priorities for compliance monitoring
and enforcement actions based on the Agency's past experience
in implementing the program and its assessment of future program
directions.  The RIP contains reporting measures that focus on
hazardous waste handler activities which are of particular
concern in a given year.  Of these, the handlers tracked most
carefully are the Significant Non-Compliers (SNC).  The SNCs are
those types of handlers whose violations, the Agency believes,
warrant national enforcement program attention.  SNCs will be a
subset of the High Priority Violators (HPV).  [HPVs are the
handlers who because of a variety of considerations, including
the nature of their violations, compliance history,  and other
factors, are to be addressed most expeditiously and most
aggressively.] Handler categories designated as SNCs may change
from year to year, depending on programmatic needs and areas of
emphasis.  It should be emphasized, however, that the SNC category
does not encompass all violators who should be addressed as
described in the Enforcement Response Policy.

     Other basic guidances of importance to the RCRA Enforcement
Program are the Policy Framework for State/Federal Enforcement
Agreements (revised August, 1986) and the National Criteria for
a Quality Hazardous Waste Management Program Under RCRA (July,
1986).  The Policy Framework is an Agency-wide guidance that
calls for enforcement agreements between EPA and the States and
describes what those agreements should address, including oversight
criteria and measures, information needs, procedures for notifi-
cation and consultation, and criteria for direct Federal enforce-
ment.  The requirements of the RIP and other RCRA directives are
made applicable to the States through the State/Federal enforcement
agreements.  The National Quality Criteria document establishes
basic goals, objectives and general performance expectations to
assure that EPA and the States have a common understanding of
what must be done to effectively implement the RCRA program.
The Quality Criteria document also outlines how performance is
to be measured and describes how EPA and the States should respond
when criteria are not met.
III.  APPROPRIATE ENFORCEMENT RESPONSE CONSIDERATIONS

     The RCRA Enforcement Program has established a system to
define enforcement response priorities which support the Program
goals.  The definitions were established to assist the Regions
and States in directing enforcement resources against the violators
who pose the greatest threat to human health or the environment.

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                                                  9900.0-1A

                                -4-

 In addition  to  the  protection  of human health and  the  environment
 is the  goal  of  penalizing  noncompliant behavior and  removal of
 the unfair economic advantage  non-compliant  facilities may enjoy
 over their competitors, by aggressive use of economic  sanctions.

      The  RCRA Enforcement  Program classifies individual
 "violations" into one of two categories  - Class I  and  Class II -
 with Class I violations being  the more serious of  the  two.
 The ERP then considers the owner/operator as a whole to .determine,
 not only  appropriate enforcement response, but prioritization of
 the handlers to receive enforcement response.

      To accomplish  this, violators are classified  into one of
 three "violator" types - High  Priority,  Medium Priority, or
 Low Priority.   Classification  of a "violator" into one of these
 three categories takes into account a handler's "violation(s)"
 as  well as a number of other considerations, as noted  in the
 examples  outlined below.   Finally, the ERP designates  the appropriate
 enforcement response for the "violator"  based upon whether the
 violator  is classified as  High  Priority, Medium Priority, or
 Low Priority.

      This section establishes  the RCRA Enforcement Program's
 definition of classes of violations, violators, and defines timely
 and  appropriate enforcement response.  These guidelines will be
 used  by Regional Offices to negotiate an agreement with each
 State that will specify, among  other things, what constitutes
 timely  and appropriate enforcement action.  The timeframes set
 forth in  this document are  minimum program goals.  More stringent
 timeframes and  enforcement  responses may be negotiated and should
 be  encouraged,  where appropriate.  However,  timeframe  flexibility,
 as provided for in  Section  III.C.,  may also be appropriate in
 these agreements.

 A.  Violation Definitions

     The  RCRA Enforcement  Response Policy classifies individual
 facility  violations into one of two categories.
 Examples of violation classifications are provided in the Appendix.

    1. Class I  Violation

     Deviations from regulations, or provisions of compliance
orders,  consent agreements, consent decrees, or permit conditions
which could result  in a failure to:

     a)  Assure  that hazardous waste is destined for and delivered
        to authorized treatment, storage, or disposal facilities
        (TSDFs); or

     b)  Prevent releases of hazardous waste  or constituents,
        both  during the active and any applicable post-closure
        periods of the facility operation where appropriate;  or

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                                                 9900.0-1A

                                -5-

      c)  Assure early detection  of such releases; or

      d)  Perform emergency clean-up operation or other
         corrective action for releases.

      2.  Class II Violation

      Any violation of a RCRA requirement that does not meet the
criteria listed above for Class  I violations.

      Class  II violations are defined in the negative, i.e., they
include  all violations that are  not considered Class I, and
therefore are those violations which do not involve deviations
from  requirements which could result in failure to: 1) assure
that  wastes are destined for only authorized TSDFs, 2) prevent
releases, 3) assure detection or 4) perform corrective action
for such releases.

 B.   Violator Definitions and Enforcement Responses

      A RCRA handler is classified as a violator based upon the
nature of his or her violation(s) along with a number of other
factors  (e.g., compliance history, previous recalcitrant behavior,
etc.).   The Enforcement Response Policy establishes three categories
of violators - High Priority, Medium Priority,, and Low Priority -
and define timely and appropriate enforcement response.

      1.  High Priority Violator

      Definition:  A High Priority Violator is a handler who:

   o  Has caused actual exposure  or a substantial likelihood of
      exposure to hazardous waste or hazardous constituents; or

   o  Is  a chronic or recalcitrant violator (This may include
      some handlers who are regularly found to have many Class I
     or  Class II violations.); or

   o  Deviates from terms of a permit, order or decree by not
     meeting the requirements in a timely manner and/or by failing
     to perform work as required by terms of permits, orders, or
     decrees; or

   o Substantially deviates from RCRA statutory or regulatory
     requirements.

     High Priority Violators (HPV) represent the category of
violators that merit the most stringent and immediate enforcement
response.  These violators should be the highest priorities for
enforcement action in conjunction with those program priorities
set out annually in the RIP.

     The response timeframes allow 45 days from the day an
inspection is completed to identify or "discover" the violations.

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                                                  9900.0-1A

                               -6-

Once violation discovery is made,  it is expected that,  for
HPVs, within 90 days a formal administrative enforcement action
will be taken, or a referral will  be made for judicial  or EPA
action.  If a judicial referral is made,  it is expected that
the case will be filed within 60 days of referral.   These time-
frames are discussed in greater detail on page 12.

     The goal of any enforcement action against a High  Priority
 violator is to impose sanctions which will:

     o Compel a rapid return to compliance;

     o Penalize the violator and recover economic savings the
       violator may have accrued;  and

     o Deter members of the regulated community from violating
       the law.

     2.  Medium Priority Violators

     Definition: A Medium Priority Violator is a handler with
one or more Class I violations who does not meet the criteria
for a High Priority Violator.  Handlers with only Class II
may also be Medium Priority Violators when the compliance
official believes an administrative order, is the appropriate
response to a facility with only Class II violations.

     The appropriate response to the Medium Priority Violator
is either the issuance of an administrative order or a  less
formal response which results in compliance within 90 days of
violation discovery.  The issuance of an administrative order
with penalties is the preferred response to a Medium Priority
Violator.  If the decision is made to issue an order, the order
should be issued within 120 days of violation discovery.  A
penalty is not required.

     Where there is reason to believe a Notice of Violation
(NOV) or Warning Letter (WL) will  bring about a timely return-to
-compliance, this less formal action may be used in response
to Medium Priority Violators.  If  the initial NOV or WL does not
result in final compliance or a compliance schedule incorporated
in an enforceable order within 90  days of violation discovery, a
decision must be made to escalate.  Escalation entails  either
development of a judicial referral or development and issuance
of an administrative order.  For generators with no violations
of land disposal restriction requirements, up to 120 days may be
allowed to return the facility to compliance before escalation
is required.

     If an administrative order is chosen as the escalated
response, the State/Region has 60 days to develop and issue the
order.  If a judicial referral is  selected, the State has 90
days to develop and refer the case to the Attorney General, or
appropriate State official.  The case should then be filed within
60 days of referral.

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                                                      9900.0-1A

                               -7-

     While it is acceptable for a State/Region to initially
address a Medium Priority Violator with an NOV or Warning Letter,
no more than one WL or NOV should be issued.  If compliance does
not result, escalation should immediately follow.

     3.  Low Priority Violators

     Definition: A handler who has only Class II violations who
is not a Medium or High Priority Violator.

     While EPA and most authorized States have the authority to
respond to any Subtitle C violation with an order or referral,  a
Low Priority Violator will normally receive an NOV or Warning
Letter as the initial response within 60 days of violation
discovery.  If this response does not result in expeditious
compliance, normally within 30-60 days of issuance, the Regional
Office or authorized State should consider whether the violation
warrants issuing an order.  In cases involving large numbers of
Class II violations, repeated Class II violations, or any other
case the enforcement authority considers serious, the handler
should be carefully evaluated to determine whether the handler
meets any of the High Priority Violator criteria, or may be
better addressed as a Medium Priority Violator therefore
requiring an enforcement action as described under the
appropriate section. .

     Characteristics of High Priority Violators

     The following criteria are set out to assist the agencies
in determining the category of violators that must consistently
receive the highest priority for enforcement.

  a) A handler who has caused actual exposure, or substantial
     likelihood of exposure to hazardous waste or hazardous
     constituents.

          Handlers that have caused actual exposure or a threat
     of exposure are always considered High Priority Violators.

          Evaluating when a handler "...caused a substantial likeli-
     hood of exposure to hazardous waste..." should be done on
     the basis of the case-specific information.   All violations
     at a site should be considered in making this determination.
     Additional factors such as the quantity of waste involved,
     toxicity, environmental persistence, or other hazard posed
     by the waste, waste management practices, proximity of
     human and environmental receptors (including employees),
     exposure pathways, etc. should be considered.

          In examining whether there is a substantial likelihood
     of exposure caused by a violator, the focus should be on
     the potential of a situation to cause exposure.  Examples
     of violators who cause a substantial likelihood of exposure
     include, but are not limited to, handlers that:

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                                                    9900.0-1A


                               -8-

          o  Fail to install or maintain an adequate ground-water
             monitoring system at a facility (i.e. one capable
             of producing samples indicating all releases to the
             groundwater);

          o  Fail to prevent unauthorized entry into the hazardous
             waste management area (by livestock or humans);

          o  Systematically, or substantially deviate from manifest
             requirements (especially any violation which could
             result in a failure to deliver hazardous waste to an
             authorized TSDF or failure to file a discrepancy
             report); or

          o  Fail to clean up spills.

  b) Chronic or recalcitrant handlers (this may include some
     handlers who are regularly found to have many Class I or
     Class II violations)

          Repeated violations (even if minor in themselves) or
     failure of a handler to quickly correct violations in the
     past may characterize a handler as a High Priority Violator.


     Again, this criterion should be evaluated based on case-
specific information, and should consider the following:

          o  Does the handler have a history of repeated Class I
             and/or Class II violations that indicate a general
             unwillingness or inability to comply with applicable
             requirements?

          o  Is the facility regularly found to have Class I
             violations,  or Class II violations which are not
             quickly resolved,  or is regularly found with the
             same type of violations?

     Where a person or corporation owns several facilities it
should be routine to consider all such facilities in answering
the above questions,  whenever possible.

  c) A handler who deviates from the terms of a permit,  order
     or decree by not meeting requirements in a timely manner
     and/or by failing to perform work as required by terms of
     permits, orders,  or decrees.

     The following should be considered:

         o  Failure to perform work of the minimum quality, as
            stipulated in orders, decrees or permits should
            indicate HPV status.

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                                                  9900.0-1A

                               -9-

         o   Does the  facility have any violations of the permit,
             order, or decree that may interfere with the facility's
             ability to timely and fully comply with the terms of
             the document?

         o   Where compliance schedules in orders are missed HPV
             designation is indicated unless circumstances delaying
             compliance are beyond the facility's control, and
             where the responsible government entity (EPA or the
             State) was promptly notified of the problem and
             agreed to, and documented, the necessary schedule
             changes.

  d)  A handler who substantially ,devia,te_s_frqm RCRA statutory
      or regulatory requirements.

      The following should be considered:

         o   Does the facility have any violations listed as
             examples in the Appendix as indicating HPV status?
             These have been determined to be essential to the
             integrity of the RCRA program or to create a potential
             threat to human health or the environment.

         o   Does the facility have any serious violations?
             Taken together these may represent a substantial
             deviation from program requirements.

     The Enforcement Response For High Priority Violators

     Facilties designated as Significant Won-Compliers (SNC)
should be the first violators subject to enforcement action in
the Regions  and States, followed by other High Priority Violators.
High Priority Violators represent the most serious RCRA violators
and consequently should receive the swiftest and most stringent
enforcement  response available.  Every HPV should be the object
of a formal  enforcement action as well as penalized with an
economic sanction or penalty.  Terms of final agreements will be
documented through an enforceable order or decree.

     The appropriate enforcement response against a High Priority
Violator is one which achieves compliance with RCRA or the
authorized State equivalent,  achieves a final or enforceable
order or remedy within an expeditious timeframe and incorporates
the compliance terms and/or schedule into an enforceable order or
decree.   This response is selected and implemented based on
consideration of the following factors:

     1)  Compliance should be achieved as quickly as possible;

     2)  The violator should be penalized in as short a timeframe
        as possible (see the EPA Penalty Policy for ability-to-pay
        considerations for final settlements); and

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                                                9900.0-1A


                                -10-


     3) The target violator, as well as other generators, facility
        owners/operators and transporters, should be deterred or
        prevented from causing or allowing future violations.

     Therefore, the enforcement response is not defined by the type
of legal action (i.e. administrative, civil,..or criminal) which
must be taken, but is defined by whether or not the particular
action is designed to a) achieve the desired result, and b)  achieve
that result in a timely fashion.  Compliance must be achieved in
accordance with RCRA or the authorized State equivalent.  Criminal
prosecution of a handler is encouraged where criminal conduct
may have occured.   Timeframes are generally much longer for  such
cases,  however, violations should not be allowed to continue
which pose a threat to human health or the environment.  Civil
action to compel a return to compliance should be taken in such
a case.  A parallel process may be possible for continued pursuit
of criminal charges.!/

     Examples of appropriate High Priority Violator enforcement
     response actions are those that will result in cessation of'
     violating activity, an enforceable compliance order or decree
     and economic sanctions against the violator by;

     o Judicial or administrative imposition of civil penalties
       against the corporation as well as, where appropriate,
       responsible corporate officials;

     o Temporary or permanent shut-down of the hazardous waste
       management activities at the facility;
          -by administrative order
          -by seeking injunctive relief in the courts
          -by permit or license revocation or suspension;

     o Seeking to have a violator held in contempt - when violation
       is of a court decree (or any administrative order (AO) in
       those states which punish the violator of an AO by contempt);
L/ Agency guidelines on parallel proceedings were issued on
January 23,  1984. (See memorandum "Policy and Procedures on Parallel
Proceedings at EPA",  AA OECM to AAs, RAs,  Regional Counsels, and
Director, NEIC, January 23, 1984).  Also see memorandum from Courtney
Price "Functions and General Operating Procedures for the Criminal
Enforcement Program" (January 7, 1985).

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                                                     9900.0-1A

                               -11-
     o Denial of any pending or future permits to operate any
       facility in the State, as well as denial or revocation of
       the violating facility permit, i.e. "permit bars";Z/

     o Some other permit actions;!/

     [Any non-monetary economic sanction must have a quantifiable
     economic impact at least as great as the monetary penalty
     which would have been sought.   EPA will compare the economic
     impact with the EPA Penalty Policy.]

     Enforcement actions should be publicized to serve notice
on the regulated community as well as the general public that
violators are caught and punished.   A stipulation that the
violator place a public notice in local newspapers admitting
guilt is often an effective addition to a final settlement.
"Ll The term "permit bar" as used in this document is a statutory
requirement which authorizes or mandates the automatic and immediate
denial or withholding of a permit (including a permit amendment,
modification, or renewal) based upon the present existence of a
violation of any program requirement at any facility in the State.
The "permit bar" shall be deemed an economic sanction only within
those States which do not require a prior hearing or "finding"
of violation before the permit bar becomes effective.  Further,
the "permit bar" shall not be deemed an appropriate economic
sanction unless (1) the permit action, if granted, will provide
a significant economic benefit to the applicant, and (2) the
right or privilege to operate which would be granted by the
permit will be immediately terminated.or operation otherwise
prevented, if the permit is denied or withheld.

2./ Any State may petition a Region to request that certain types
of permit actions be deemed "appropriate, economic sanctions" for
addressing High Priority Violators.  The petition shall demonstrate
to the Region that all objectives, purposes, and results which
can be achieved by an order/civil penalty action, will be achieved
by use of the proposed permit action.  If the Region, with concurrence
of the Office of Waste Programs Enforcement, finds the proposed
permit action equivalent to or more stringent than an order/civil
penalty action for purposes of this policy, the petition may be
granted.

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                                                   9900.0-1A

                                -12-


     The actions  specified above are designed to achieve the
 results specified in this section.  For  all actions specified
 above,  formal enforcement action must be  issued, referred,!./
 and/or  effective  within 90 days of the discovery of the
 violation(s).

     In addition  to the above  list of economic sanctions, two
 other possible situations need  to be noted where an action
 (enforceable administrative order) may result in an economic
 sanction and correct the compliance problem at a facility.
 One such example  may be a CERCLA type action which results in
 significant economic sanctions  in addition to clean-up costs
 (e.g. CERCLA 106 action with  economic sanctions at a RCRA HPV
 facility).  A second example may be where a State has EPA-
 authorized corrective action authority which carries a penalty
 (where a release  is a violation under State law).  While these
 two situations provide the economic sanction (penalty) necessary
 to be considered  an appropriate response to a High Priority
 Violator, the Federal corrective action order authority under
 RCRA does not.  For a Federal  corrective action under 3008(h),
 a separate action would be necessary to impose an economic sanc-
 tion.  Generally,  even where the 3008(h) order returns a
 facility to full  compliance, another action would be expected
 to impose the economic sanction, in order to satisfy ERP
 requirements.

     C.  Timeframes

     In the majority of cases  ERP timeframes should be met.
 In this revision  to the ERP a  ceiling of 10% per year is being
 established as the number of cases allowed to exceed standard
 ERP timeframes.   Only those reasons specifically permitted by
 the policy will justify extensions to ERP timeframes.  Should a
 State or Region exceed standard ERP timeframes on more than 10%
 of its cases during a given fiscal year, the Region or Headquarters
 EPA will need to  evaluate the  reasons for all timeframe exceedances,
 The evaluation will help determine what changes may be needed to
 the Region's/State's procedures, or whether,  in fact, case load
 or other circumstances justify allowing a greater .percentage of
 the cases to exceed ERP timeframes.  This limit to exceeding ERP
 timeframes will be reevaluated each year, and appropriate changes
will be noted in  the RIP.
I/ States that do not have administrative penalty authority,
or other administrative means of imposing economic sanctions,
should refer High Priority Violators to the Attorney General
(AG), or other appropriate legal official, for judicial action
or reach agreement with EPA regarding Federal action.

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                                                 9900.0-1A

                               -13-


     Th e Agency recognizes that circumstances may arise where
the enforcement response timeframes. specified may be insufficient
to prepare and initiate the appropriate enforcement responses
specified in this policy.  It is also recognized that instances
may occur where immediate action is appropriate.  The Agency
expects that the Region or the State will take appropriate
enforcement action much more expeditiously than provided for by
the ERP established timeframes in the following cases:

      o  Where a release or other violation poses an immediate
         threat to human health and the environment; or

      o  Where activities of the owner/operator must be
         stopped or redirected, such as cases in which the
         Agency or the State seeks to immediately halt improper
         construction or installation.

     Within the framework of this guidance, flexibility may be
necessary regarding the timeliness of an enforcement response,
particularly regarding the following timeframes:

     o  The timeframe from inspection to violation discovery;

     o  The timeframe for formal enforcement action in the
        case of High Priority Violators; and

     o  The timeframe from referral to filing, in the case
        of civil referrals, both to the AG and to DOJ.

     In cases where these timeframes will be exceeded due to the
case-specific circumstances described below, the States and
Regions must monitor case development.  In cases where timely
enforcement action (as defined by this policy) will not be
feasible, the Regions and States must be prepared to justify the
delay and develop an alternative schedule for case resolution.

     In all cases in which the State or Region deviates from ERP
timeframes,  the States and Regions must closely track case progress
and adhere to their alternative case resolution schedule. In
addition, in the event that the Region does not find the State's
reasons for the delay within ERP guidelines, the Region may decide
to take Federal action.

     1.  Violation Discovery Timeframe

     A violation is discovered as of the date when the case
development staff determines,  through review of the inspection
report, record review,  and/or data (e.g. laboratory reports),
that a violation has occurred.  The violation discovery date
for evaluation purposes,  assumed in the National Quality Criteria
and restated here,  is 45 days from the date of inspection.

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                                                     9900.0-1A

                               -14-
     Cases in which circumstances may require more than 45 days
from inspection to violation discovery are cases in which:

     o  The laboratory analyzing samples taken during an
        inspection can not return the results to the Region or
        State within 45 days from the day of inspection;!/

     o  Analytical results of samples taken during an inspection
        are inconclusive, thus requiring additional sampling and
        analysis to confirm the discovery of the violation(s);

     o  Contractor inspection report is not received by the
        State or Region in a timely manner.r./

     2.   HPV Formal Enforcement Timeframe

     In the case of High Priority Violators, 90 days from viola-
tion discovery is the established timeframe for issuing,  referring,
and/or initiating formal enforcement action.  Because formal
enforcement action is required,  unissued drafts and informal
discussions within 90 days of violation discovery are not
considered timely and appropriate actions.

      Where a violation may pose a potential threat to human
health or the environment, the correction of that violation is
of paramount importance.  If a State has administrative order
authority and no administrative penalty authority, the State
may us.e the administrative process to force the facility into
compliance on a fast-track,  while pursuing a penalty by referral
to the AG, or other appropriate authority on a somewhat longer
timeframe.

     Cases in which circumstances may require greater than 90 days
from violation discovery to formal enforcement are cases involving:

     o  Site abandonment;

     o  Potential criminal conduct which is under investigation; or

     o  Need for outside technical experts.
L/ The regulating agency is responsible for assuring that contracts
stipulate that reports and other deliverables are made available
in a timely manner so that ERP timeframes may be met.

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                                                  9900.0-1A

                               -15-
      3.  Referral to Filing Timeframe

      In all cases involving either State referral to the AG or
other appropriate legal authority or referral of a case by EPA
to the Department of Justice, the established timeframe is 60
days  from case referral to filing.  However, some complicated
cases may require more than 60 days. *L/

      Circumstances which may require more than 60 days from civil
referral to case filing are cases in which:

     o  Additional data or information collection is requested by
        the Attorney General's office or DOJ for case development;

     o  The Attorney General or DOJ is investigating to determine
        if criminal prosecution is appropriate;

     o  Cases involving other media (e.g. air pollution violations
        were also involved at the facility); or

     o  Novel legal issues or defenses.

IV. ESTABLISHING PRIORITIES

     The Regions and States should prioritize their enforcement
efforts in the following order: 1) Significant Non-Compliers,
2) High Priority Violators, 3) Medium Priority Violators, and
4, Low Priority Violators.  However, enforcement actions need
not be taken against all High Priority Violators before any
actions are initiated against Medium Priority Violators.  Because
the different categories of violators merit different levels of
response with varying resource requirements, most Regions and
States will want to respond to a mix o.f the various categories
of violators.  This is an acceptable approach, although the Regions
and States should keep in mind that oversight activities will
focus first on Significant Non-Compliers.  Therefore, the emphasis
must be on these and other High Priority Violators.
/ In order to assist the State Attorney General  (AG) or other
appropriate legal authority, in meeting established timeframes,
the State should provide both technical and funding support to
that authority.  It is the responsibility of the program office
to fully prepare a case so that it is complete when referred  for
judicial filing.  This preparation includes conferring with the
legal staff in advance of referral in order to know and develop
what the legal staff need to support the anticipated enforcement
action.  After referral, the program office must be prepared  to
provide further case development support.

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                                              9900.0-1A
                                -16-
 V.   EPA ACTION IN AUTHORIZED  STATES'

      States  with  authorized programs have  the primary  responsibility
 for  ensuring compliance  with  the  RCRA  program requirements.
 Nevertheless,  EPA has  the  authority to take  independent enforcement
 action  in  authorized States.

      It is EPA's  policy  to take enforcement  actions  in authorized
 States  when:

      o  The State  asks  EPA  to  do so  and provides  justification
        based on unique case specific circumstances;

      o  The State  fails to  take timely  and  appropriate  action;

      o  The State  is not  authorized  to  take the action; or

      o  A case  could establish a legal  precedent  -
        (such cases are expected to  arise infrequently.)

      The previous  section  described what is  considered timely
 and  appropriate action in  response  to  various categories of
 violators.   The timelines  set out in that  section establish
 trigger  points  at which  EPA should  initiate  action if  the State
 response is  not considered adequate.   Where  alternative schedules
 have  been  agreed  to by EPA and the  State,  these will define
 timely  action  on  a case  specific basis.  If  the  State  has failed
 to take  formal  enforcement action within the appropriate timeframe,
 the  Regional Office should notify the  State  that EPA will take
 action.  The  Regional  Office  may also  choose to  take an enforce-
 ment  action  to  impose  a  penalty against a  High Priority Violator
 if the  State's  action  failed  to include a  penalty at least equal
 to that  which  could have been obtained through the administrative
 process.Z/

      The Memorandum of Agreement  (MOA) or  Understanding (MOU)
 or Grant Agreement between EPA and  each State should set out the
 process  for providing  notice  to the State.  The  Regional Office
 may need to conduct its  own case development inspection, and
 prepare  additional documentation before proceeding to  initiate
 an action.  Only  if the  Region feels the State has made reasonable
 progress in approprately addressing the facility should the
 Region hold off federal  response when the  timeframe or alternative
 schedule agreed to by  EPA  is  not met by an authorized  State.
Z/ EPA may also consider taking enforcement actions seeking
penalties if it feels that the economic sanction imposed by a
State was inadequate, particularly when non-compliance continues.
Before initiating any penalty-only action, EPA must weigh the
benefit of that action against the need to take action against
other handlers that are out of compliance with RCRA.

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                               -17-


     In order to facilitate achievement of  "timely and appropriate"
enforcement responses against noncompliant  facility owners and
operators State/EPA coordination is essential.  Regular case
status meetings, written and telephone contacts should supplement
use of monthly Compliance Monitoring and Enforcement Log (CMEL)
sheets.  Status updates on specific cases are especially important
when alternative schedules are being followed.

     State Referrals to EPA

     In carrying out the responsibilities for the enforcement
of RCRA, authorized States sometimes find it necessary and
desirable to refer certain cases to the Region for Federal
enforcement.  As with other responses, if the State decides to
refer an HPV to EPA, this must be done within 90 days of Violation
Discovery.  In such cases it is not expected that the Regions
would start the timeframe "clock" all over  again; nor is it
anticipated that the Region will need as much time to develop
a complaint or DOJ referral.

     For HPV cases a complaint should be issued, or referral
made to DOJ, within 90 days of receipt of the referral package.
The State should provide any case development information
available to the Region as part of the referral package.  This
should provide a reduction in the time needed for Regional
case development, allowing the Region to address the situation
more expeditiously.  There is some flexibility in the timeframes,
however, so that where necessary, a Region  may verify the
nature of the violations through a case development inspection.
Where a referral arises from a joint inspection, familiarity
with the case should expedite Regional handling of the case.
If a Region finds more time is necessary in dealing with a
State's referrals, the Region should work out an agreement
with the State to provide early notice of referrals in advance
of the "timely" referral date indicated by  the policy (i.e.
where the State's "appropriate" response must be a referral to
EPA because it cannot otherwise appropriately address a violator).

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                                                   9900.0-1 A

                            -1 8-


     VI.  EPA ACTION AT FEDERAL FACILITIES I/

     EPA and the States are responsible for implementing the
timely and appropriate enforcement criteria at Federal
facilities in the same manner that the criteria are applied
to non-Federal facilities.  However, due to certain limitations
on EPA's enforcement authorities at Federal facilities there
will be some differences  in EPA's response to these facilities
which are HPVs.

     The Agency remains committed to supporting Federal Facilities
in their efforts to comply with RCRA.  While the appropriate
response to a High or Medium Priority Violator is a formal
enforcement action, where a Federal Facility is determined to
fit into one of these violator categories, EPA will issue a Notice
of Noncompliance (NON) as the initial enforcement action.  Since
the issuance of a NON is  parallel to the issuance of a RCRA
3008(a) administrative complaint, the NON must specify the
violations, remedy, and timeframes for implementing the remedy
in the same manner that an administrative complaint would.
This action will be taken against High Priority Violator facilties
within 90 days of violation discovery.  After the NON has been
issued, EPA will work with the Federal Facility to develop a
Federal Facility Compliance Agreement (FFCA) which will describe
actions the Federal Facility will take in order to return to
compliance.  The terms and conditions of the final FFCA will be
enforceable through citizens suits, and State actions under
citizens suit provisions.  The requirement for economic sanctions
against High Priority Violators will not apply when EPA is the
lead enforcement agency.

     EPA should encourage the States to take the enforcement
lead and pursue appropriate action against Federal Facilities.
States, at a minimum, should issue administrative orders against
Federal Facilities which  are HPVs.  States may also be able to
pursue other actions under their own authorities.  States are
expected to take appropriate enforcement actions within the
timeframes set forth in this document.
H./ This Section does not apply to Government-Owned Contractor-
Operated (GOCO) facilities.  GOCOs should be treated the same
as private facilities.

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Enforcement Response Timeline
High Priority Violators
                                     90
                                     Days
                              Develop
                       Administrative Enforcement
                               Action

INSPECTION/
RECORD REVIEW

45
Days

VIOLATION
DISCOVERY



                           Develop Judicial
                              Referral
                                     90
                                    Days
ADMIN. ACTION
   TAKEN
H
Admin.
Process
    CASE
  REFERRED
  TO JUDICIAL
  AUTHORITY
       60
      Days
                                                                             COMPLIANCE
                                   NOT IN
                                COMPLIANCE
                    CASE
                    FILED

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                                                                 9900.0-1A
Enforcement Response Timeline
Medium  Priority Violators

INSPECTION/ 45
RECORD REVIEW Days

Develop Ac
Enforcer
VIOLATION
DISCOVERY
Waminc
NOV"
120 FORMAL A
Days TAKE
ministrative
snt Action
Dev
A.
6
Da
I Letter / IN
Issued V
CTION 1 Admin. 1
N "~| Process!
elop
O.
o
ys
A 90 Days ^
J Develop
r Judicial Referral

INCOMPLIANCE ^
90 OR ON ^/y
Days* COMPLIANCE ^V^
SCHEDULE?
IN COMPLIANCE /
OR ON -M>
SCHEDULE? V
(NO)

REFER 60 CASE
CASE Days FILED
ES)
                                                                       YES
                           ' 120 Days lor Non-Land Disposal Restriction Generator Violations

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                                                    9900.0-1A
                             APPENDIX
 Violation Classification Examples and How to Classify Violators


     Violation Classification examples are presented to help
guide compliance officials in making case-specific -decisions
necessary in determining violation classification as well as
classification of the violator for purposes of determining
appropriate enforcement response.

     The Violator characteristics are briefly restated here.
The Medium Priority Violator is a handler with one or more Class
I violations not meeting criteria to be designated a High Priority
Violator.  The High Priority Violator is a handler who caused or
poses substantial likelihood of exposure to waste or constituents;
is a chronic or recalcitrant violator; or substantially deviates
from the program requirements or terms of a permit, order or decree
by failing to perform work as required or in a timely manner.
Violations of certain program requirements (such as examples
provided in this appendix) will be considered to be "substantial
deviations", requiring HPV status.  Examples of these violations
are listed in this appendix as "HPV".  In looking at handlers
which do not have these particular violations, the compliance
official should consider the combined effect of violations, the
results of previous inspections at the facility, as well as the
violator's responsiveness in rectifying previous violations, in
determining whether the violator is an HPV.

     The Class I violation is defined as a deviation from
regulations, Compliance Orders, or permits which could result in
a failure to: assure hazardous waste is destined for and delivered
to authorized TSDFs; prevent releases; assure early detection of
releases; or perform corrective action for releases.  The Class
II violation is defined in the negative; violations not meeting
criteria for Class I designation are classified as Class II.

     As indicated in the ERP text, classification of the handler
violator category is made using information about the likilihood
of exposure, the violations (extent of deviation from requirements)
violation history (have the same requirements been a compliance
issue in the past?), and past experience in dealing with handler
(in the past has enforcement escalation been necessary, or has
the initial WL/NOV been sufficient to obtain compliance?).

     If in past dealings with a facility informal actions have not
been successful in addressing violations, resulting in a delay
in returning the facility to compliance, the compliance official
should consider whether an informal action is likely to obtain
compliance in this case.  Where formal action is taken an economic
sanction may well be appropriate, even though not required  in

-------
                                                    9900.0-1A

                               -2-

response to Medium Priority Violators.  If a handler has in the
past not responded to formal actions  (orders) issued in response
to violations, this should indicate a handler needs to be
treated as a High Priority Violator.  If past orders against a
handler have not been taken seriously, with the facility not
carrying out terms in good faith or have resulted in drawn-out
disputes, HPV status is indicated.

     Just as the violator classification is a case-specific
decision, the classification of a violation as a Class I or II
often must consider site specific information as well.  While
some violations are easily categorized as being a Class I,  or a
Class I requiring HPV response; others must take into account
conditions at the facility and extent of deviation from the
requirements.  An example of the former is operating a treatment,
storage, or disposal facility without a permit or interim status.
In every case this should be classified as a Class I violation,
and HPV response is required, as indicated on page 5 of this
appendix.   On the other hand, while a "systematic failure ...or
substantial deviation from manifest requirements" requires an
HPV response, lesser deviations from the manifest requirements
may be considered Class I violations requiring only a Medium
Priority Violator status; the most minor violations (e.g.,
omission of generator ID number) may be a Class II.

     The examples presented are a small sample of violations
fitting each category.  Those dealing with ground-water monitoring
violations are most detailed, following the thought process
which is used to make the violator classification.  The other
examples briefly describe a situation or type of violation, then  
note the appropiate designation.

Ground-Water Monitoring Requirement Violations/Violator Classification


Example 1.

Inadequate well number or placement

     In evaluating violations of subpart F for classification,
the compliance official must realize that a system may trigger
assessment monitoring and still be grossly inadequate.  In
order for the appropriate assessment plan to be designed and
implemented, all releases,  and extent of releases (including
rate and chemistry!must be detected.  Thus, a system which
fails to cover a significant pathway due to insufficient numbers
or inappropriate location of wells, or inadequate understanding
of the subsurface geology,  is a Class I violation.  [It involves
a deviation from a regulation or permit requirement "which could
result in a failure to assure early detection of such releases".]

-------
                                                 9900.0-1A
                               -3-
     Such a handler should be considered a High Priority Violator
 (HPV) because the system inadequacies may allow a plume or part
 of a plume to migrate unaddressed, or postpone detection until a
 large volume of waste or leachate has been released.  [This
 violation has caused a  "substantial likelihood of exposure".]

 Example 2.

     Ground-water monitoring well screens are too long, dilution
 causes low indicator readings.  While corrective action is
 indicated (i.e. samples indicate need for further investigation
 of possible release), levels are too low to trigger assessment
 monitoring (or compliance monitoring).  This is a violation
 of the ground-water monitoring system performance standard and
 is a Class I violation because the ground-water monitoring system
 was inadequate to trigger the appropriate monitoring system
 response.

     As long as the corrective action process proceeds to
 provide the necessary characterization to allow the release to
 be appropriately addressed, this handler does not have to be
 characterized as an HPV.  However, if o/o delays response, HPV
 designation may be indicated.

 Example 3.

     Damage to a well may impede follow-up sampling critical to
 a site evaluation or other inspection.  A case in point is where  
 an initial sampling indicates need for further sampling from a
 specific well to further evaluate a possible release.  Upon
 returning to the well at a later date, the well is found to be
 damaged so as to prevent the taking of reliable samples.  This
 is a Class I, and the handler must be considered to be an HPV
 due to the nature of the violation and the suspicious circumstances

 Example 4.

 Sampling and analysis

     Regulations require that sampling and analysis of ground
water be performed at certain intervals.  Failure to sample at
proper intervals or for all required parameters could result in
 the failure to detect changes in ground-water quality... Class I
 violation - HPV may be indicated depending on extent of deviation
 from requirements.   Class I violation and HPV status would be
required where a facility fails to perform sampling or analysis
when required or uses poor techniques or procedures which
 invalidate results.

-------
                                                 9900.0-1A


                               -4-


Example 5.

     40 CFR 265.93  (b) thru (e) requires owner/operator of
facility to make comparison between upgradient and downgradient
ground-water monitoring wells.  If significant increases (or pH
decreases) are confirmed, a ground-water assessment program must
be implemented.  Failure to comply with these requirements
for comparing well data or implementing a ground-water assessment
program is a Class I violation, HPV response is indicated.

Example 6.

     Records of data and analyses from facilities GWM systems are
to be kept for specified periods of time.  Minor deviations
from these requirements which do not impede compliance monitoring
or enforcement efforts may be Class II violations.

Example 7.

     Analyses from GWM systems must be submitted to the appropriate
State or Federal authority.  Parameters exceeding maximum contaminant
levels and/or significant differences from background concentrations
must be identified, failure to submit analysis of GWM data or to
notify appropriate State or Federal official of increases in
indicator parameters is a Class I violation.  Where violation
results in delay to further investigation of possible release,
HPV designation is indicated.

-------
                                                  9900.0-1A


                                -5-

     Examples  of Violation and Violator  Classification


 o  Failure to carry out waste analysis  for  a  waste  stream.      HPV
    (unless o/o is  properly applying  "knowledge-of-process")

 o  Operating  without a permit or  interim status.                HPV

 o  Failure to comply with 90  day  storage limit by generator.  Class I
    (Gross  deviation from requirement or failure to  rectify
    upon notice elevates this  to HPV.)

 o  Commencing construction prior  to  permit  approval at a new    HPV
    facility or new part of a  facility where permit  is
    required before such construction is commenced.

 o  Complete failure to respond to a  3007 request.              HPV

 o  Systematic failure of a generator or transporter to          HPV
    comply  with the manifest system or substantial deviation
    from manifest requirements.  [More routine manifest
    violations of a limited nature may not require HPV
    designation,  such as where one manifest  out of a large
    number  was not  signed (and the waste was properly handled
    and  disposed of anyway).   In such a  case,  a Class I violation
    is appropriate,  however HPV designation  is not required.
    The  most minor  manifest violation (e.g.  omission of a
    generator  ID number)  may be a  Class  II.

 o  Failure to satisfy manifest discrepancy  reporting            HPV
    requirements.

 o  Failure to prevent the  unknown entry or  prevent  the          HPV
    possibility of  the unauthorized entry of persons or
    livestock  into  the waste management  area of the  facility.

o   Failure  to properly handle ignitable,  reactive,  or           HPV
    incompatible  wastes as  required by 264 and 265.17(b)(1),
    (2),(3),(4),  and (5).

o   Disposal of hazardous waste  in a  regulated quantity          HPV
    at a non-regulated TSDF.

o   Improper disposal  of waste in  violation  of the land          HPV
    disposal restrictions.

o   Mixing,   solidifying, or  otherwise diluting waste to          HPV
    circumvent  land  disposal restrictions.

o   Incorrectly certifying  a waste for disposal/treatment        HPV
    in violation  of  the  land disposal restrictions.

o   Failure to  submit  notifications/certifications               HPV
   as required by  land disposal restrictions.

-------
                                                 9900.0-1A
                               -6-

o  Deficient waste determination (land ban).                  Class I

o  Failure of an o/o of a TSDF to have a closure or post       HPV
   post-closure plan or cost estimates.

o  Failure to maintain a copy of the closure plan or          Class II
   financial assurance documentation at the facility
   when it is maintained when it is maintained at the
   corporate headquarters and/or regional corporate office.
   (Failure to supply documentation upon request is a
   Class I violation.)

o  Minor deviations from timeframes set out for facility      Class II
   closure.
   (except as related to requirement that o/o submit closure
   plan at least 180 days before begining closure - Class I,
   possibly HPV depending upon deviation and potential impact).

o  Failure to submit professional engineer's certification    Class I
   of closing to proper State or Federal official.

o  Failure of o/o to retain professional engineer to oversee   HPV
   closure activities and certify conformance with closure
   plan.

o  Failure to establish or maintain financial assurance        HPV
   for closure and/or post closure care.

o  Failure of o/o to provide updated documentation for        Class-I
   financial test for closure, post-closure, and/or
   liability insurance, within 90 days of the close of
   the company's fiscal year.

o  Failure to submit an originally signed duplicate of the    Class I
   trust agreement to the FA.

o  Failure to submit biennial report    ,                      Class II

o  Failure to meet general inspection requirements (265.15)   Class I
   for developing a written inspection plan.
   If inspections are not conducted or hazardous conditions
   are not corrected.                                          HPV
o  Failure to designate the facility emergency coordinator.   Class I

-------
                                                        9900.0-1A


                               -7-
o  Failure to follow emergency procedures contained            HPV
   in the response plaYi which could result in serious harm.
   Therefore failure to carry out the following types of
   activities during an emergency would be considered a
   Class I violation and indicate a HPV;
   Response activities include:  activating alarm and/or
   notify appropriate emergency officials; assessing extent
   and seriousness of release; reporting findings of spills
   outside a facility; containing hazardous waste; monitoring
   any shut-down operations; properly treating,  storing and
   disposing of the spill; and cleaning up completely after
   the accident.

o  Storage of waste in a container that is not in good        Class I
   condition.
   - General use of containers which are in poor condition.    HPV

o  Failure to give police, fire department, and hospitals     Class I
   information that will be needed if there is an emergency
   at the facility.  [NOTE: HPV is indicated if fire department
   is not made aware of risks and special equipment needed to
   respond to emergencies at facility or lack of preparedness
   poses potential threat to human health.]

o  Failure to label a H.W. drum with required information.    Class I
  - If this incorrect labeling could cause an inappropriate
   response to a spill or leak and subsequent release or       HPV
   potential harm to human health or the environment.
  - a general failure to follow drum labeling requirements     HPV
   or lack of knowledge of drum contents.

o  Failure to date containers/tanks with accumulation date.    HPV

o  Failure to placard or incorrectly placarding a             Class I
   vehicle carrying hazardous waste.
  - Multiple placard violations, past similar problems         HPV
   or if there is a spill or accident during transportation
   and this results in inappropriate response.

o  Failure to conduct adequate personnel training.            Class I
  - Failure to maintain complete records.                     Class II

o  Deviations from export rule requirements.                  Class I
  - Systematic failure to- comply with export rule
   or .substantial deviation from requirements.                 HPV

-------
        Section 14
  Relevant Documents Not
Included In The Compendium

-------
                                                                 en
                                                                 w
                                                                 n
                                                                 1-3
                                                                 *>.
RELEVANT DOCUMENTS  NOT INCLUDED IN THE COMPENDIUM

-------
        RCRA Enforcement-Related Policy Documents  That Do Not
                           Appear In  This Compendium
5 sat!"           v  ,            .     '<            *  v
        TITLE            Land Disposal Restriction Handbook

        DIRECTIVE  NO.

        DATE EFFECTIVE/
        ISSUED
  '  
        SOURCE

                  V.  , ., S''
        TITLE            Referral Procedures for Criminal Cases

        DIRECTIVE  NO.

        DATE EFFECTIVE/   05/09/83
        ISSUED

        SOURCE          OECM
       TITLE            Redelegatton/Designation of Enforcement Related Delegation of Authority Under
                        RCRA and CERCLA

       DIRECTIVE  NO.

       DATE EFFECTIVE/   05/10/83
       ISSUED

       SOURCE         OSWER
                 ^ i' ................. " .........   ^ ^ s s s
                                                -iw 0 S s X^SSw AV^*s.sv \^   .-,%. ssvXvXv.-. " % s vw  V sss
       TITLE           Accepting Nonhazardous Waste After Losing Interim Status

       DIRECTIVE  NO.   9930. 0-2A

       DATE EFFECTIVE/  12/20/86
       ISSUED

       SOURCE         OWPE
        ............. """       -- ...................      "                       ''
     * These  documents  are FOIA exempt  and not available to the  public

-------
        RCRA Enforcement-Related Policy Documents That Do Not
                           Appear In  This  Compendium


        TITLE            Waste Oil Interim Guidance
        DIRECTIVE  NO.   9951.1
        DATE EFFECTIVE/  12/30/86
        ISSUED
        SOURCEOSWER

        TITLE            Ground Water Technical Enforcement Guidance Document (TEGD)
        DIRECTIVE  NO.   9950.1-a
        DATE EFFECTIVE/  07/01/87
        ISSUED
        SOURCE         OSWER

        TITLE            RCRA Inspection Manual
        DIRECTIVE  NO.   9938.2A
        DATE EFFECTIVE/  04/22/88
        ISSUED
        SOURCE         OSWER                          '

        TITLE            RCRA Technical Case Development Guidance
        DIRECTIVE  NO.   9938.3
        DATE EFFECTIVE/  07/13/88
        ISSUED
        SOURCE         OSWER
H\;-; x  ;  ,'    ---         : -,  \'                   ,,, -   *  ^---'    , o

        T|TLE            Hazardous Waste Incinerator Inspection Manual
        DIRECTIVE  NO.   9938.6
        DATE EFFECTIVE/  09/01/88
        ISSUED
        SOURCE         OSWER
^  X""  "    %   %%       :: f       <..  \ :                 ^    \^   '*''.'..
s >...:.''              ""    j--.                  ^  ..''  f     .*''
        TITLE            RCRA Ground Water Monitoring Laboratory Audit Inspection (LAI) Guidance (Draft Final)
        DIRECTIVE  NO.   9950.4
        DATE EFFECTIVE/  09/01/88
        ISSUED
        SOURCE         OSWER
      * These documents are  FOIA exempt and not available to  the public*

-------
  RCRA  Enforcement-Related  Policy  Documents  That Do Not
                    Appear In This  Compendium
  TITLE           Hazardous Waste Tank System Inspection Manual
  DIRECTIVE  NO.   9938.4
  DATE EFFECTIVE/  10/06/88
  ISSUED
  SOURCE         OSWER

  TITLE           Enforcement Strategy for the Land Disposal Restrictions First Third Rule
  DIRECTIVE  NO.   9938.5
  DATE EFFECTIVE/  01/23/89
  ISSUED
  SOURCE         OWPE
  TITLE            Land Disposal Restrictions Inspection Manual
  DIRECTIVE  NO.    9938.1 A
  DATE EFFECTIVE/   02/01/89
  ISSUED
  SOURCE          OSWER

  TITLE            Civil Penalty Assessment Under RCRA
  DIRECTIVE  NO.
  DATE EFFECTIVE/   05/03/89
  ISSUED
  SOURCE          OECM
                          \                     s "" % ^ ?,; -.\$xvv. """..  *.\
  TITLE            Federal Facilities Hazardous Waste Compliance Manual
  DIRECTIVE  NO.    9992.4
  DATE EFFECTIVE/   01/09/90
  ISSUED
  SOURCE          OWPE
            " -    -"""  ~s,  ~  %\           s-    % ^:T
  TITLE            Federal Facilities Hazardous Waste Compliance Manual
  DIRECTIVE  NO.    9992.4
  DATE EFFECTIVE/   01/18/90
  ISSUED
  SOURCE          OFFE
* These documents  are  FOIA exempt and not available to  the public

-------
   RCRA Enforcement-Related Policy Documents That  Do Not
                   Appear In This Compendium
TITLE           Mining Waste Guidance
DIRECTIVE NO.
DATE EFFECTIVE/  03/26/90
ISSUED
SOURCE
TITLE           Hazardous Waste Incineration Enforcement Strategy
DIRECTIVE NO.   9938.8
DATE EFFECTIVE/  04/01/90
ISSUED
SOURCE
OSWER
  * These documents are FOIA exempt and not available to the public

-------
        Section 15
  List Of Relevant Federal
Register Notices By CFR Part

-------
                                                               CO
                                                               n
                                                               n
LIST OF RELEVANT FEDERAL REGISTER NOTICES BY CFR PART

-------
                                NOTE TO USERS
       This Section of the Compendium contains a list of Federal Register final rules, interim final
rules, and corrections to final rules that were published between 1980 and 1990 and are relevant to
enforcement of RCRA Subtitle C. This list is current through December 31.1990. It is anticipated
that subsequent relevant Federal Register notices will appear in updates to the Compendium.

       The notices are grouped by relevant Code of Federal Regulations (CFR) part and, within
that grouping, appear in chronological order.  Each notice is listed under every CFR pan for which
it is relevant.

-------
        FEDERAL REGISTER NOTICES  WITH   RCRA  ENFORCEMENT  RELEVANCE
                                            (Part 2601
      02/26/80  12724      45     39
                 260       Hazardous Waste Management -
                           Overview: Definition Part 260
                           Subpart A Definitions, Subpart B
                           Overview
      06/19/80  33140      45     98
                 260
                 262
                 271
           Final Rule for Standards for
           Generators of Hazardous Waste
Final Rule
      06/19/80  33151       45     98
                 260
                 262
                 271
           Standards for Generators of
           Hazardous Waste
Final Rule
      06/19/80  33221       45     98

                 260       Standards for Transporters and
                 264       Owners and Operators of
                 265       Hazardous Waste Treatment,
                       ,,,.,,.,,v..,,!9.!igj.^MB^pQMlZ^BI?^.-.-
      10/30/80  72024      45     212
tVASVWVtWtnWVMVWHVllWM*)
                 260       General Identification and Listing   Interim Final
                 261       of Hazardous Waste             Amendment
      11/17/80  76074      45     223
 260       General Standards Applicable to
 254       Owners and Operators of
 264       Hazardous Waste Treatment,
 122       Storage, and Disposal Facilities
           and EPA Administered Permit
Tm.,^,,mm^
                                                        Final Amendments
                                                        to Rule
      11/19/80  76626      45     235
                 260
                 264
                 265
                 122
           General and EPA Administered
           Permit Programs: Hazardous
           Waste Permit Programs
                                                                                   Interim Final Rule
      01/09/81  2344
46     6
 260       Hazardous Waste Permit Program  interim Final
 122                                    Amendment to Rule
      05/21/81  27473      46     97
260
261
264
265
                           Hazardous Waste Management
                           Systems
                                                                                   Corrections to
                                                                                   Interim Final and
                                                                                   Final Rules
      07/07/81  35246      46     129
                 260
                 261
                 264
                 265
                 122
           Hazardous Waste Management    Revision to Interim
           System: Identification and Listing;  Final and Rnal
           Standards Applicable to Owners    Rules
           and Operators of Hazardous
           Waste Treatment, Storage, and
           Disposal Facilities; EPA
           Administered Permit Programs
      11/06/81  55112      46     215
                 260       Container/Waste File Standards
                 264       for Owners and Operators of
                 265       Hazardous Waste Facilities
                                                                                   Amendments to
                                                                                   Interim Final Rule

-------
   FEDERAL  REGISTER NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                      (Part 260
                                     .-., Vsjs swrn
07/26/82  32274      47     143
                 260
                 264
                 265
                 122
          Hazardous Waste Management
          System: Standards Applicable to
          Owners and Operators of
          Hazardous Waste Treatment,
          Storage, and Disposal Facilities:
          EPA Administered Permit
         jProgirams     .^^^^^_^^ri,
                             Interim Final Rule
                             with Request for
                             Comments
08/19/82  36162      47     161
                260       Hazardous Waste Management
                           System; Summary of Rulemaking
                           Petitions
04/01/83  14146      48     64
                 260
                 261
                 262
                 263
                 164
                 165
          Environmental Permit
          Regulations: RCRA Hazardous
          Waste
                             Final Rule
03/20/84  10490      49     55
                 260
                 262
                 271
          Hazardous Waste Management
          System - General - Standards for
          Generators of Hazardous Waste;
          State Hazardous Waste Program
          Requirements
                             Final Rule
01/04/85  614
50     3
260
261
264
265
255
Hazardous Waste Management
System; Definition of Solid Waste
04/11/85  14216      50     70
                260
                261
                266
          Hazardous Waste Management    Corrections
          System - Definition of Solid Waste  Technical
07/15/85  28702      50
                260
                261
                262
                264
                265
                266
                270
                271
                280
          Hazardous Waste Management    Final Rule
          System: Final Codification Rule
03/24/86   10146      51    56
                260
                261
                262
                263
                270
                271
          Hazardous Waste Management
          System; Identification and Listing
          of Hazardous Waste; Standards for
          Generators of Hazardous Waste;
          Standards for Transporters of
          Hazardous Waste; EPA
          Administered Permit Programs;
          Authorization of State Hazardous
          Waste
                                                                             Final Rule

-------
        FEDERAL  REGISTER NOTICES WITH   RCRA  ENFORCEMENT  RELEVANCE
                                           (Part 260)

05/02/86 16422 51 85 260
264
265
270

07/14/86 25422 51 134 260
261
263
264
265
270
271
07/15/86 29430 51 158 260
161
262
264
265
270
271
08/08/86 28664 51 153 260
261
262
263
271

Standards Applicable to Owners Final Rule
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; Closure/Post
Closure and Financial
Responsibility Requirements
Hazardous Waste Management Final Rule
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems



Hazardous Waste Management Correction - Final
System: Standards for Hazardous pu|e
Waste Storage and Treatment
Tank Systems



Hazardous Waste Management Final Rule
System; Exports of Hazardous
Waste


      11/14/86  41313      51    220
AKOW&ttAKttWWV
                      SSMWMWWKWMtfMWWI
      06/04/87  21010      52     107
      07/08/87  25760      52    130
     10/27/87  41295      52    207
260
 260
 261
 262
 264
 265
 268
 270
JZL
 260
 261
 264
 265
 268
 270
211,
 260
 268
 Hazardous Waste Management
 System: Identification and Listing
 of Hazardous Waste - Final Denials
tt6M6MMMMM^%SttS%^AMS^^
 Hazardous Waste Management
 System: Land Disposal
 Restrictions
                                                                                Final Rule
                                      Corrections - Final
                                      Rule
          Land Disposal Restrictions for
          Certain "California List" Hazardous
          Wastes and Modifications to the
          Framework
                                                                                Final Rule
          Test Methods for Hazardous
          Waste Covered by the Land
          Disposal Restrictions
                                                                                Final Rule:
                                                                                Incorporation by
                                                                                Reference

-------
  FEDERAL REGISTER  NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                 ^ JPartjeg^	wjiw^(,	
                                 f CF8 #AHf' -:^ CC TlTLEi
12/10/87  46946      52    237
260
264
270
144
                                               Hazardous Waste Miscellaneous
                                               Units: Standards Applicable to
                                               Owners and Operators
                                                                            Final Rule

07/19/88  27290      53    138
                                     260       Hazardous Waste Management
                                     261       System: Identification and Listing
                                               of Hazardous Waste - Final
                                               Exclusion
                                                                            Final Rule
09/02/88  34086      53    171
260
264
265
270
                                               Hazardous Waste Management
                                               System: Standards for Hazardous
                                               Waste Storage and Treatment
                                               Tank Systems
                                                                            Final Rule
09/02/88  34087      53    171
                                     260       Hazardous Waste Management
                                     264       System: Standards for Hazardous
                                     255       Waste Storage and Treatment
                                     270       Tank Systems
                                                                            Final Rule
06/22/89  26198      54    119
                                     260
                                     264
                                     270
                                     144
                                               Hazardous Waste Miscellaneous
                                               Units Standards Applicable to
                                               Owners and Operators
                                                                            Corrections - Final
                                                                            Rule
09/29/89  40260      54    188
                                     260       Hazardous Waste Management
                                     261       System: Testing and Monitoring
                                               Activities
                                                                            Final Rule
01/23/90  2322
                     55    15
                                     260       Mining Waste Exclusion; Section
                                     261       3010 Notification for Mineral
                                     262       Processing Facilities Designated
                                               Facility Definition, Standards
                                               Applicable to Generators of
                                               Hazardous Waste
                                                                            Final Rule
03/09/90  2948
                     55    47
                                     260       Hazardous Waste Management    Technical
                                     261       System: Testing and Monitoring    Corrections
                                               Activities
12/06/90  50450      55    235
260
261
262
.264
265
270
271
                                               Identification and Listing of
                                               Hazardous Waste; Wood
                                               Preserving
                                                                            Final Rule

-------
FEDERAL REGISTER

06/19/80
07/16/80
<^V^V^ANSMAy*SVAS^V'.SV*NW*V
10/30/80
10/30/80
10/30/80
11/12/80
11/19/80
11/25/80
11/25/80
12/04/80
12/04/80
01/16/81
05/21/81
07/07/81
09/08/81
#Al^^|
33119 45
47833 45
72024 45
72037 45
72040 45
74884 45
76618 45
78530 45
78529 45
80267 45
78532 45
4614 46
27473 46
35246 46
44970 46
NOTICES
w$&?
98
138
212
212
212
220
Av.vAs*ssvw;wAswswiw;v
225
^<^XsWsX^>X*>WX.,VS,sX^
229
229
235
235
11
97
129
173
WITH
(Part 261
" Vay--- "*y^s^|
261
261
261
260
261
261
261
261
261
WrtWiv.NSssswrtsswswf
261
262
265
261
261
RCRA ENFORCEMENT RELEVANCE
^Pf^^Pil^^S
Part 261 - Identification and Listing
of Hazardous Waste
Identification and Listing of
Hazardous Waste
General Identification and Listing
of Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
Identification and Listing of
Hazardous Waste
261 Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste
2 6 1 Hazardous Waste Management
260 Systems
264
265
261
260
264
265
122
261
Hazardous Waste Management
System: Identification and Listing;
Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; EPA
Administered Permit Programs
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste


Interim Rnal Rule
Interim Final
Amendment
Final Action
Amending Interim
Final Regulation
Technical
Amendment to Final
Rule
Final Rule and
Interim Rnal Rule
Interim Final
Amendment
Interim Final
Amendment to Rule
Final Amendment/
Interim Final
Amendment
Interim Final
Amendment to Rule
Final Rule - Lists
Interim Final Rule
and Temporary
Suspension of
Interim Rnal Rule
Corrections to
Interim Rnal and
Final Rules
Revision to Interim
Final and Rnal
Rules
Interim Rnal Rule

-------
   FEDERAL  REGISTER NOTICES  WITH   RCRA  ENFORCEMENT  RELEVANCE
                                       (Part 261!
                                       ^^AXrt,-rt''-<
-------
FEDERAL  REGISTER  NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                  (Part 261)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^!1

01/04/85 614 50 3 261
264
260
265
255
01/14/85 1999 50 9 261
264
265
270
775
04/11/85 14216 50 70 261
260
266
07/15/85 28702 50 261
260
262
264
265
266
270
271
280
07/25/85 30274 50 143 261
08/20/85 33543 50 161 261
266
09/13/85 37370 50 178 261
10/23/85 42936 50 205 261
271
^^^^^^^W^^SI^^^^^^^^^^^^^^^m^^^^^^^

Hazardous Waste Management
System; Definition of Solid Waste
Hazardous Waste Management Final Rule
System - Oioxin Containing Waste
Hazardous Waste Management Corrections -
System - Definition of Solid Waste Technical
Hazardous Waste Management Final Rule
System: Final Codification Rule
Identification and Listing of Final Rule
Hazardous Waste - Mobile
Incineration System
Hazardous Waste Management Technical
System; Definition of Solid Waste Corrections
Hazardous Waste Management Final Rule
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management Final Rule
System; Identification .and Listing
of Hazardous Waste
11/27/85  48886      50     229
                                  261       Hazardous Waste Management
                                            System; Identification and Listing
                                            of Hazardous Waste Final
                                            Exclusions and Final Vertical and
                                            Horizontal Spread (VHS) Model
                                                                          Final Rule
12/12/85  50789      50     239
                                  261       Hazardous Waste Management
                                            System; Identification and Listing
                                            of Hazardous Waste; Final
                                            Exclusions and Final VHS Model
12/31/85  53315      50     251
                                  261       Hazardous Waste Management
                                  271       System: Identification and Listing
                                            of Hazardous Waste
                                                                          Correction to Final
                                                                          Rule
                                                                          Final Rule

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FEDERAL REGISTER
NOTICES  WITH
            Part 261
                                                RCRA ENFORCEMENT RELEVANCE
03/24/86  10146      51
56
                                    261
                                    260
                                    262
                                    263
                                    270
                                    271
 Hazardous Waste Management
 System; Identification and Listing
 of Hazardous Waste; Standards for
 Generators of Hazardous Waste;
 Standards for Transporters of
 Hazardous Waste; EPA
 Administered Permit Programs;
 Authorization of State Hazardous
 Waste Programs      	
ttMMAWmMMMMMvWK^^
Final Rule
04/09/86  12148       51
68        261       Hazardous Waste Management
                     System: Identification and Listing
                     of Hazardous Waste
                                                                             Final Rule
04/29/86  15887       51
82        261       Hazardous Waste Management
                     System: Identification and Listing
                     of Hazardous Waste
                                                                             Final Rule
07/03/86  24496       51
 126       261       Regulatory Determination for      Regulatory
                     Wastes from the Extraction and     Determination
                     Beneficiation of Ores and Minerals
07/14/86 25422 51 134 261
260
263
264
265
270
271
Hazardous Waste Management Final Rule
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems



07/16/86  25701       51
 136       261       Hazardous Waste Management
                     System; Identification and Listing
                     of Hazardous Waste
                                                                             Final Rule
07/18/86  26008       51
 136       261       Hazardous Waste Disposal
	Facilities: Availabilityof Information
07/29/86  27038       51
 145       261       Hazardous Waste Management
                     System: Identification and Listing
                     of Hazardous Waste
                                                                             Correction - Final
                                                                             Rule
07/29/86  27039       51
 145
                                    261
 Identification and Listing of
 Hazardous Waste Mobile
 Incineration System
Correction - Final
Rule
08/06/86  28296       51
 151
                                    261
 Hazardous Waste Management
 System: Identification and Listing
 of Hazardous Waste
Final Rule
08/08/86  28664       51
 153
                                    261
                                    260
                                    262
                                    263
                                    271
 Hazardous Waste Management
 System; Exports of Hazardous
 Waste
                                                                               Final Rule

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  FEDERAL  REGISTER  NOTICES  WITH   RCRA  ENFORCEMENT  RELEVANCE
                                     (Part2611

08/15/86
08/15/86
09/12/86
09/22/86
10/17/86
10/24/86
11/14/86
11/14/86
11/14/86

29217 51 158 261
29219 51 158 261
32458 51 177 261
33612 51 183 261
37019 51 201 261
37725 51 206 261
271
41308 51 220 261
41327 51 220 261
41306 51 221 261

Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste

Final Rule
Final Rule
Final Rule
Correction - Final
Rule
Final Rule
Final Rule
Final Rule .
Final Rule
Final Rule
11/17/86  41483       51
221       261       Hazardous Waste Management
                    System: Identification and Listing
                    of Hazardous Waste - Final
                    Exclusions
                                                 Final Rule
11/17/86  41486      51
221       261       Hazardous Waste Management
                    System; Identification and Listing
                    of Hazardous Waste - Final
                    Exclusions
                                                 Final Rule
11/17/86  41493       51
221       261       Hazardous Waste Management
                    System: Identification and Listing
                    of Hazardous Waste - Rnal Denials
                                                 Final Rule
11/17/86  41499       51
221       261       Hazardous Waste Management
                    System: Identification and Listing
                    of Hazardous Waste - Final
                    Exclusions
                                                 Final Rule
12/2/86   43350      51
231       261       Hazardous Waste Management
                    System: Identification and Listing
                    of Hazardous Waste
                                                                            Interpretative Rule

-------
  FEDERAL REGISTER NOTICES  WITH   RCRA  ENFORCEMENT  RELEVANCE


04/13/87 11821 52 70 261
266
04/13/87 11822 52 70 261
266
06/04/87 21010 52 107 261
260
262
264
265
268
270
271
06/05/87 21306 52 108 261
266
07/08/87 25760 52 130 261
260
264
265
268
270
271
07/10/87 26012 52 132 261
IS^^^^^^TW'Efe^ ; < ^^^^
Sl^^v' ^^'^'I-'^A'^
Hazardous Waste Management
System: Burning of Waste Fuel
and Used Oil Fuel in Boilers and
Industrial Furnaces
Hazardous Waste Management
System: Burning of Waste Fuel
and Used Oil Fuel in Boilers and
Industrial Furnaces
Hazardous Waste Management
System: Land Disposal
Restrictions
Hazardous Waste Management
System: Definition of Solid Waste
Land Disposal Restrictions for
Certain "California List" Hazardous
Wastes and Modifications to the
Framework
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
^mi^naifi'^
^^y^^i^.1:0.*
Technical
Corrections
Technical
Corrections
Corrections - Final
Rule
Technical
Corrections
Final Rule
Technical
Corrections
08/03/87  28696      52     148
                 2 61       Hazardous Waste Management
                           System: Identification and Listing
                           of Hazardous Waste - Rnal Denials
                                       Final Rule
08/03/87  28697      52     148       261
                           Identification and Listing of
                           Hazardous Waste: Spent Pickle
                           Liquor from Steel Finishing
                           Operations  	
                                       Final Rule
08/12/87  29849      52     155       261
                           Hazardous Waste Management
                           System: Identification and Listing
                           of Hazardous Waste
                                       Final Exclusion Rule
02/18/88   4850
53     32
2 61       Hazardous Waste Management
          System: Identification and Listing
          of Hazardous Waste
Correction - Final
Rule
02/25/88  5573
53     037       261       Hazardous Waste Management
                           System: Identification and Listing
                           of Hazardous Waste
                                       Correction and
                                       Clarification - Final
                                       Rule

-------
FEDERAL REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
                        (Part 261!


03/11/88
03/11/88
04/22/88
04/27/88
06/09/88
06/22/88
07/19/88
07/19/88
08/02/88
08/10/88
08/18/88
09/13/88
09/28/88
09/30/88

^S^^SSr^^gS^SiS^^gsi-??* & v$s^piS&:5iR&W^^SwS's5
7903 53 48 261
7913 53 48 261
13382 53 78 261
15170 53 81 261
21639 53 138 261
20117 53 81 261
27162 53 138 261
27290 53 138 261
260
29038 53 148 261
30055 53 154 261
31330 53 160 261
35421 53 177 261
302
37761 53 188 261
38291 53 190 261
i liliiiilix^ ^C'reli-i' ** J* >!** ^Jsls^^^Tlsslsfllslli
^^^^^^^sK^iw.^'r^^'.i^^w^^^^^^^s
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Identification and Listing of
Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste - Final
Exclusion
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste - Final
Exclusion
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste - Rnal Denials
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste and
Designation of Reportable
Quantities and Notification
Identification and Listing of
Hazardous Wastes Excluded from
Non-Specific Sources
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste


Final Exclusion Rule
Final Rule
Technical
Correction
Correction - Final
Exclusion Rule
Withdrawal of Rnal
Rule
Final Exclusion Rule
Technical
Correction
Final Rule
Final Rule
Final Rule
Final Exclusion Rule
Final Rule
Final Exclusion and
Denial
Withdrawal of Final
Rule

-------
  FEDERAL  REGISTER  NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                       (Part 26if
                                           	
11/25/88  47692       53
       227       261        Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste
                                                   Final Exclusion Rulep
01/27/89 4021 54 17
261
268
Identification and Listing of
Hazardous Waste/Land Disposal
Restrictions
Administrative Stay
02/01/89  5081
54     20        261        Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste
                                                   Final Exclusion
03/22/89  11706       54
       54        261        Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste
                                                   Final Exclusion Rule
04/20/89  15938       54
       75
          261
          Hazardous Waste Management
          System: Identification and Listing
          of Hazardous Waste - Final
          Exclusion
Final Rule
05/01/89  18503       54
       82
          261
          Hazardous Waste Management
          System: Identification and Listing
          of Hazardous Waste - Final Denial
Final Rule
05/22/89  20580       54
       91
          261        Hazardous Waste Management
                     System: Identification and Listing
                     of Hazardous Waste - Final
                     Exclusion
                                         Final Rule
05/22/89  21941       54
       97
          261
          Hazardous Waste Management
          System: Identification and Listing
          of Hazardous Waste - Final
          Exclusion
Final Rule
06/28/89  27167       54
       123       261       Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste - Final
                            Exclusion
                                                   Final Rule
08/01/89  31675
54     146       261       Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste - Final
                            Exclusion
                                                   Final Rule
08/18/89  34175
54     159       261       Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste - Final
                            Exclusion
                                                   Final Rule
09/01/89  36592
54
          261        Hazardous Waste Management
                     System: Identification and Listing
                     of Hazardous Waste - Final Denial
                                                                                Final Rule
09/09/89  37333
54
173
2 61        Hazardous Waste Management
           System: Identification and Listing
           of Hazardous Waste - Final Denial
                                                                                Final Rule

-------
  FEDERAL  REGISTER  NOTICES WITH   RCRA ENFORCEMENT RELEVANCE
                                       (Part 261]
09/19/89  38519      54
       180       261       Hazardous Waste Management
                           System: Identification and Listing
                           of Hazardous Waste - Final
                           Exclusion
                                                  Final Rule
09/26/89  39359       54
       185       261       Hazardous Waste Management
                           System: Identification and Listing
                           of Hazardous Waste
                                                  Correction - Final
                                                  Rule
09/29/89  40239       54
       188       261       Hazardous Waste Management
                           System: Identification and Listing
                           of Hazardous Waste - Final Listing
                                                  Final Rule
09/29/89  40260       54
       188       261       Hazardous Waste Management
                 260       System: Testing and Monitoring
                           Activities
                                                  Final Rule
10/06/89  41402       54
       193
          261
          271
          302
          Hazardous Waste Management
          System: Identification and Listing
          of Hazardous Waste and CERCLA
          Hazardous Substances
          Designation; Reportable Quantity
          Adjustment Methyl Bromide
          Production Wastes
                              Final Rule
10/27/89  43818
54     207       261        Hazardous Waste Management
                            System: Identification and Listing
                            of Hazardous Waste - Final
                            Exclusion
                                                   Final Rule
11/08/89  45089
53     216       261        Hazardous Waste Management
                            System: Standards for Generators
                            of Hazardous Waste
11/29/89  49164
50
230
261
264
265
266
271
Hazardous Waste Management
System; Burning of Waste Fuel
and Used Oil Fuel in Boilers and
Industrial Furnaces
Final Rule
12/11/89  50968
54     236       261        Hazardous Waste Management
                 271        System: Identification and Listing
                 302        of Hazardous Waste; CERCLA
                            Hazardous Substance
                            Designation, Reportable Quantity
                            Adjustment
                                                                               Final Rule
01/23/90  2322
55     15        261        Mining Waste Exclusion; Section
                 260        3010 Notification for M ineral
                 262        Processing Facilities Designated
                            Facility Definition, Standards
                            Applicable to Generators of
                            Hazardous Waste
                                                                                Final Rule
03/09/90  2948
55     47        261        Hazardous Waste Management     Technical
                 260       System: Testing and Monitoring    Corrections
                            Activities

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   FEDERAL  REGISTER  NOTICES  WITH   RCRA ENFORCEMENT RELEVANCE
  	            	(Part 261)      	
                                                     T^F'^WV^TW^ '>?,-s. -*1'i..1^>'.* V?'W"v " ^ V- J* s
03/27/90  11188       55    59
2 61       Hazardous Waste Management
           System: Identification and Listing
           of Hazardous Waste; Reportable
	Quantity Adjustment     	
                               Final Rule
05/02/90  18496       55    85
261
271
302
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste and CERCLA
Hazardous Substance
Designation and Reportable
Quantity Adjustment -1,1
Dimethyl Hydrazine Production
Wastes
Final Rule
05/04/90  18726       55    87
261
Hazardous Waste Management     Technical
System; Identification and Listing   Amendment
of Hazardous Waste
06/11/90  23634       55     112
261
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste, Final
Exclusion
                                                                              Correction
06/13/90 23935
07/17/90 29017
55 114
55 137
261
261
Land Disposal Restrictions
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste; Final
Exclusion
Correction -
Rule
Final Rule
Final

07/17/90  29020      55    137
2 61        Hazardous Waste Management
           System: Identification and Listing
           of Hazardous Waste, Final
           Exclusion
                                                                              Final Rule
07/19/90  29359      55    139
08/02/90  31387      55    149
261
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Amendment - Final
Rule
261
264
265
268
271
302
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste; Toxicity
Characteristics Revision
Correction - Final
Rule
09/27/90   39409      55     188
261
264
265
268
271
302
Hazardous Waste Management  
System: Identification and Listing
of Hazardous Waste; Toxicity
Characteristics Clarification
                                                                              Clarification - Final
                                                                              Rule

-------
  FEDERAL  REGISTER NOTICES WITH   RCRA ENFORCEMENT  RELEVANCE
                                  (Part 261]
10/05/90 40834      55    194
261      Hazardous Waste Management    Interim Rnal Rule
         System; Identification and Listing
         of Hazardous Waste; Toxicity
         Characteristic; Hydrocarbon
         Recovery Operations
10/26/90 43128 55 208 261
11/02/90 46354 55 213 261
271
11/13/90 47328 55 219 261
11/13/90 47330 55 219 261
12/06/90 50450 55 235 261
262
264
265
270
271
260
12/17/90 51707 55 242 261
Hazardous Waste Management Final Rule
System; Identification and Listing
of Hazardous Waste; Final
Exclusion
Hazardous Waste Management Final Rule
Systems; Identification and Listing
of Hazardous Waste; CERCLA
Hazardous Substance
Designation
Hazardous Waste Management Final Rule
System; Identification and Listing
of Hazardous Waste; Final
Exclusion
Hazardous Waste Management Final Rule
System; Identification and Listing
of Hazardous Waste; Final
Exclusion
Identification and Listing of Final Rule
Hazardous Waste; Wood
Preserving
Petroleum Refinery Primary and Final Rule;
Secondary Oil; Water; Solids Correction
Separation Sludge Listings;
Correction

-------
FEDERAL REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
                         (Part 262)
06/19/80 33140 45 98 262
260
271
06/19/80 33151 45 98 262
260
271
11/19/80 76624 45 235 262
11/25/80 78529 45 229 262
261
265
12/31/80 86968 45 252 262
264
265
12/31/80 86970 45 252 262
263
264
265
01/26/81 8395 46 16 262
264
265
10/12/82 44938 47 197 262
264
265
01/28/83 3977 48 20 262
264
265
04/01/83 14146 48 64 262
261
260
263
164
165
Final Rule for Standards for
Generators of Hazardous Waste
Standards for Generators of
Hazardous Waste
Standards Applicable to
Generators of Hazardous Waste
Identification and Listing of
Hazardous Waste
Standards for Generators of
Hazardous Waste and Interim
Status Standards for Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities
Transportation of Hazardous
Waste By Rail
Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities
Hazardous Waste Management
System: Standards Applicable to
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
Hazardous Waste Management
System; Standards Applicable to
Generators of Hazardous Waste
and Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
Environmental Permit
Regulations: RCRA Hazardous
Waste
Final Rule
Final Rule
Interim Rnal Rule
Final Amendment/
Interim Final
Amendment
Interim Rnal Rule
Interim Final
Amendment
Suspension of
Annual Report
Requirements
Notice Concerning
Compliance Dates
Final Rule
Final Rule

-------
FEDERAL REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
                         (Part 262)
                      . v, rt * A ff f"> ..%*.
$l
-------
FEDERAL  REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
                         (Part 262)
                         . ^ -.f ss.-.-x^v, -tsW

06/04/87 21010
09/23/87 35894
07/19/88 27165
02/16/89 7036
02/26/89 12732
01/23/90 2322
12/06/90 50450
ffl^ill^R.I*fr^Ji
52 107 262
261
260
264
265
268
270
271
52 184 262
271
53 138 262
264
265
268
138
54 31 262
45 39 262
55 15 262
261
260
55 235 262
264
265
270
271
260
261
ife^^AP^;S^^B^^^^l
Hazardous Waste Management Corrections - Final
System: Land Disposal RU|e
Restrictions
Exception Reporting for Small Final Rule
Quantity Generators of Hazardous
Waste
Farmer Exemptions Technical
Corrections
Hazardous Waste Management Notification of
System: Standards for Generators Extension of
Expiration Date
Part 262 - Standards Applicable to
Hazardous Waste Generators
Mining Waste Exclusion; Section Final Rule
3010 Notification for Mineral
Processing Facilities Designated
Facility Definition, Standards
Applicable to Generators of
Hazardous Waste
Identification and Listing of Final Rule
Hazardous Waste; Wood
Preserving

-------
  FEDERAL REGISTER NOTICES WITH   RCRA ENFORCEMENT RELEVANCE
12/31/80  86970      45     252
263
262
264
265
Transportation of Hazardous      Interim Final
Waste By Rail                  Amendment
04/01/83  14146      48     64
263
262
261
260
164
165
Environmental Permit
Regulations: RCRA Hazardous
Waste
Final Rule
03/24/86  10146     51     56
263
262
261
260
270
271
Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste; Standards for
Generators of Hazardous Waste;
Standards for Transporters of
Hazardous Waste; EPA
Administered Permit Programs;
Authorization of State Hazardous
Final Rule
07/14/86  25422      51     134
263
261
260
264
265
270
271
Hazardous Waste Management
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems
Final Rule
08/08/86  28664      51     153
263
262
261
260
271
Hazardous Waste Management
System; Exports of Hazardous
Waste
Final Rule
06/19/89  33073      45     98
263       Part 263 - Hazardous Waste
          Management System: .General

-------
  FEDERAL  REGISTER  NOTICES WITH   RCRA ENFORCEMENT RELEVANCE
                                       (Part 264)
06/19/80  33221      45    98
                 264       Standards for Transporters and
                 260       Owners and Operators of
                 255       Hazardous Waste Treatment,
                           Storage, and Disposal Facilities
06/21/80  34255      45    100
                 264       Standards Applicable to Owners
                 265       arid Operators of Hazardous
                           Waste Treatment, Storage, and
                           Disposal Facilities     	
                                        Final and Interim
                                        Final Rule
11/17/80  76074      45    223
                 264
                 254
                 260
                 122
          General Standards Applicable to
          Owners and Operators of
          Hazardous Waste Treatment,
          Storage, and Disposal Facilities
          and EPA Administered Permit
          Programs           _____
Final Amendments
to Rule
11/19/80  76626       45    235
                 264
                 260
                 265
                 122
          General and EPA Administered
          Permit Programs: Hazardous
          Waste Permit Programs
Interim Final Rule
12/31/80  86968       45    252
                 264
                 262
                 265
          Standards for Generators of
          Hazardous Waste and .Interim
          Status Standards for Owners and
          Operators of Hazardous Waste
          Treatment, Storage, and Disposal
          Facilities
Interim Final Rule
12/31/80  86970       45    252
                 264
                 263
                 262
                 265
          Transportation of Hazardous        Interim Final
          Waste By Rail                    Amendment
01/12/81   2802
46     7
264       Consolidated Permit
265       Requirement; Standards
122       Applicable to Owners and
          Operators of Hazardous Waste
          Treatment, Storage, and Disposal
          Facilities
                                                                               Interim Final Rule
01/23/81   7666
46     15
264        Incinerator Standards for Owners
165        and Operators of Hazardous
\ 22        Waste Management Facilities;
           Consolidated Permit Regulations
Interim Final Rule
and Final Rule
01/26/81   8395
46     16        264       Standards Applicable to Owners    Suspension of
                 262       and Operators of Hazardous        Annual Report
                 265       Waste Treatment, Storage, and     Requirements
                            Disposal Facilities
05/21/81   27473       46    97
                 264
                 261
                 260
                 265
           Hazardous Waste Management
           Systems
                                                                               Corrections to
                                                                               Interim Final and
                                                                               Final Rules

-------
  FEDERAL  REGISTER NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                       (Part 264)
                                       v*1 '
07/07/81   35246       46     129
                  264
                  261
                  260
                  265
                  122
                     Hazardous Waste Management     Revision to Interim
                     System: Identification and Listing;  Final and Final
                     Standards Applicable to Owners    Rules
                     and Operators of Hazardous
                     Waste Treatment, Storage, and
                     Disposal Facilities; EPA
                     Administered Permit Programs	
11/06/81   55112       46     215
                  264
                  260
                  265
                     Container/Waste File Standards
                     for Owners and Operators of
                     Hazardous Waste Facilities
                                         Amendments to
                                         Interim Rnal Rule
11/23/81   57284       46     221
                  264       Standards Applicable to Owners
                            and Operators of Hazardous
                            Waste Treatment, Storage, and
                            Disposal Facilities
01/08/82  953
 47     5
          264       Standards Applicable to Owners
                     and Operators of Hazardous
                     Waste Treatment, Storage, and
                     Disposal Facilities
                                         Corrections - Interim
                                         Final Rule
01/11/82  1255
 47     6
          264       Standards for Owners and
                     Operators of Hazardous Waste
                     Disposal Facilities
                                         Interim Final
                                         Amendments to
                                         Rule
02/25/82  8304
 47     38        264        Hazardous Waste Management
                  265        System; Standards for Owners
                  122        ar|d Operators of Hazardous
                             Waste Treatment, Storage, and
                             Disposal Facilities and EPA
                             Administered Permit Programs;
                             Hazardous Waste Permit Programs
                                                                                Interim Rnal Rule
04/07/82  15032
 47     67        264        Standards Applicable to Owners
                  265        and Operators of Hazardous
                             Waste Treatment, Storage, and
                             Disposal Facilities; Financial
	                    Requirements
                                                   Revised Interim
                                                   Final Rule
04/16/82  16554
 47     74        264        Standards Applicable to Owners
                  265        and Operators of Hazardous
                  123        Waste Treatment, Storage, and
                             Disposal Facilities; Liability
	                Requirements
                                                   Revised Interim
                                                   Final Rule
06/25/82  27520
 47
122
264
265
122
The Hazardous Waste
Management System
Interim Final
Amendments to
Interim Rnal and
Final Rules
07/13/82  30446
 47     134       264       Standards Applicable to Owners
                  265       and Operators of Hazardous
                             Waste Treatment, Storage, and
                             Disposal Facilities; Liability
                             Coverage Requirements
                                                                                Final Rule and
                                                                                Notice of Extension
                                                                                Dates

-------
  FEDERAL REGISTER  NOTICES WITH   RCRA ENFORCEMENT  RELEVANCE
07/26/82  32274
 47    143
264
260
265
122
Hazardous Waste Management
System: Standards Applicable to
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities:
EPA Administered Permit
Programs
Interim Final Rule
with Request for
Comments
07/26/82  32384
 47    143       264      Hazardous Waste Management
                           System; Standards for Owners
                           and Operators of Hazardous
                           Waste Treatment, Storage, and
	PbposalFacHftjes
                                       Interim Rnal Rule
07/26/82  32356      47     143
                 264      Hazardous Waste Management
                           System; Standards for Owners
                           and Operators of Hazardous
                           Waste Treatment, Storage, and
                           Disposal Facilities
                                       Interim Rnal Rule
08/18/82  36097      47     160
                 264      Hazardous Waste Management
                           System; Standards for Owners
                           and Operators of Hazardous
                           Waste Treatment, Storage, and
                           Disposal Facilities
                                       Interim Rnal Rule
10/12/82 44938 47 197 264
262
265
01/21/83 2773 48 15 264
01/28/83 3977 48 20 264
262
265
06/30/83 30113 48 127 264
261
265
124
01/04/85 614 50 3 264
261
260
265
255
Hazardous Waste Management Notice Concerning
System: Standards Applicable to Compliance Dates
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
Regulatory Flexibility Analysis of RUie Related to
Land Disposal Restrictions Notice
Hazardous Waste Management Final Rule
System; Standards Applicable to
Generators of Hazardous Waste
and Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
Hazardous Waste Management Correction Final
System; Permit Program, RUie
Identification and Listing of
Hazardous Waste; Standards and
Interim Status Standards for
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
Hazardous Waste Management
System; Definition of Solid Waste

-------
FEDERAL  REGISTER NOTICES WITH  RCRA ENFORCEMENT  RELEVANCE
                          (Part 264)
4|0^|
01/14/85 1999 50 9 264
261
265
270
775
07/15/85 28702 50 264
262
261
260
265
266
270
271
280
05/02/86 16422 51 85 264
260
265
270

07/11/86 25350 51 133 264
265
07/14/86 25422 51 134 264
263
261
260
265
270
271
07/15/86 29430 51 158 264
262
161
260
265
270
271
08/08/86 28556 51 153 264
265
*fi'&'' ' TITHED: iHjjg
S88&-W, A \^,^< v.' s -S' s ',"'*' 3W *
Hazardous Waste Management
System - Dioxin Containing Waste



Hazardous Waste Management
System: Final Codification Rule







Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; Closure/Post
Closure and Financial
Responsibility Requirements
Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; Liability
Coverage
Hazardous Waste Management
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems



Hazardous Waste Management
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems



Hazardous Waste Management
System
&*^ 3U8s&iI
Final Rule



Final Rule







Final Rule

Interim Final Rule
Final Rule



Correction - Final
Rule



Final Codification
Rule; Technical
                                                     Correction

-------
  FEDERAL  REGISTER  NOTICES  WITH   RCRA ENFORCEMENT RELEVANCE
                                    (Part 264)
                                  cFfTp&nr  ^   7'tn*t T
06/04/87  21010
                    52
107
264
262
261
260
265
268
270
271
          Hazardous Waste Management
          System: Land Disposal
          Restrictions
Corrections - Final
Ru|e
07/08/87  25760      52    130
07/09/87  25942      52    131
09/23/87  44314      52    222
 264
 261
 260
 265
 268
 270
 271
!*
 264
 270


 264
 265
                                              Land Disposal Restrictions for
                                              Certain "California List" Hazardous
                                              Wastes and Modifications to the
                                              Framework
                                               Final Rule
                                              List (Phase 1 ) of Hazardous        Final Rule
                                              Constituents for Ground Water
                                              Monitorin
                                              Liability Requirements for         Final Rule
                                              Hazardous Waste Facilities:
                                              Corporate Guarantee
12/01/87 45748 52 230 264
265
270
271
144
12/10/87 46946 52 237 264
260
270
144
03/10/88 7740 53 47 264
265
270
07/19/88 27165 53 138 264
262
265
268
138
Hazardous Waste Codification Codification Rule
Rule for the 1984 RCRA
Amendments
Hazardous Waste Miscellaneous Final Rule
Units: Standards Applicable to
Owners and Operators
Standards Applicable to Owners Corrections - Final
and Operators of Hazardous RU|e
Waste Treatment, Storage, and
Disposal Facilities - Closure/Post
Closure and Financial
Responsibility Requirements
Farmer Exemptions Technical
Corrections
08/17/88  31336      53     159       264
                                              Land Disposal Restrictions for First  Final Rule
                                              Third Scheduled Wastes

-------
  FEDERAL  REGISTER NOTICES WITH   RCRA  ENFORCEMENT RELEVANCE
                                  (Part 264)

09/01/88 33938 53 170 264
265
09/02/88 34086 53 171 264
260
265
270
09/02/88 34087 53 171 264
260
265
270
09/28/88 379312 53 188 264
265
270
124
10/11/88 39720 53 196 264
06/22/89 26198 54 119 264
260
270
144
06/23/89 26594 54 120 264
265
266
268
271
148
08/14/89 33376 54 155 264
265
270
11/29/89 49164 50 230 264
261
265
266
271
^ fV ' -^ 	 ,T. .1 	 \ . . XT?
Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities - Liability
Coverage
Hazardous Waste Management
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems
Hazardous Waste Management
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems
EPA Administered Hazardous
Waste Permit Programs and Permit
Modifications for Hazardous Waste
Management Facilities
Statistical Methods for Evaluating
Ground Water Monitoring Data
Hazardous Waste Miscellaneous
Units Standards Applicable to
Owners and Operators
Land Disposal Restrictions for
Second Third Scheduled Wastes
Delay of Closure Period for
Hazardous Waste Management
Facilities
Hazardous Waste Management
System; Burning of Waste Fuel
and Used Oil Fuel in Boilers and
Industrial Furnaces
IV^^.^r..^;. ?,..** 	 1
Final Rule
Final Rule
Final Rule
Final Rule
Final Rule
Corrections - Final
Rule
Final Rule
Final Rule
Final Rule
05/18/90 20678      55
97
264      Standards for Owners and
         Operators of Hazardous Waste,
         Incineration and Burning of
         Hazardous Waste in Boilers and
         Industrial Furnaces
                                                                    Correction

-------
  FEDERAL REGISTER NOTICES WITH   RCRA  ENFORCEMENT RELEVANCE
06/26/90  25976      55     123
 264       Standards Applicable to Owners
 265       and Operators of Hazardous
           Waste Treatment, Storage, and
           Disposal Facilities
                             Correction - Final
                             Rule
08/02/90  31387      55     149
 264
 261
 265
 268
 271
 302
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste; Toxicity
Characteristics Revision
Correction - Final
Rule
09/27/90  39409      55     188
12/06/90  50450      55    235
 264
 261
 265
 268
 271
 302
W.%%SSKAW;SSS
 264
 265
 270
 271
 260
 261
 262
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste; Toxicity
Characteristics Clarification
                                                                             Clarification - Final
                                                                             Rule
Identification and Listing of
Hazardous Waste; Wood
Preserving
Final Rule

-------
   FEDERAL  REGISTER NOTICES  WITH   RCRA  ENFORCEMENT  RELEVANCE
                                       (Part 265)
06/19/80  33232
45     98        265       Interim Status Standards for
                            Owners and Operators of
                            Hazardous Waste Treatment,
                            Storage, and Disposal Facilities
                            fflWWWWWNWW^MWKWW^
06/19/80 33221 45 98
265
260
264
Standards for Transporters and
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
06/21/80  34255       45     100
                 265       Standards Applicable to Owners
                 264       arid Operators of Hazardous
                            Waste Treatment, Storage, and
                	Disposal Facilities	
                                         Final and Interim
                                         Final Rule
10/30/80  72039       45     212
                 265       Interim Status Standards for
                            Owners and Operators of
                            Hazardous Waste Treatment,
                            Storage, and Disposal Facilities
                                         Revisions to Final
                                         Rule and Interim
                                         Final Rule
11/19/80  76626       45     235
                 265
                 260
                 264
                 122
           General and EPA Administered
           Permit Programs: Hazardous
           Waste Permit Programs
                              Interim Rnal Rule
11/25/80  78529       45     229
                 265
                 262
                 261
           Identification and Listing of
           Hazardous Waste
                                                                               Final Amendment/
                                                                               Interim Final
                                                                               Amendment
12/31/80  86968       45     252
                 265
                 264
                 262
12/31/80  86970       45     252
                 265
                 264
                 263
                 262
           Standards for Generators of
           Hazardous Waste and Interim
           Status Standards for Owners and
           Operators of Hazardous Waste
           Treatment, Storage, and Disposal
           Facilities
                                                                               Interim Rnal Rule
           Transportation of Hazardous        Interim Final
           Waste By Rail                    Amendment
01/12/81   2802
46     7
01/26/81   8395
46     16
265
264
122
265
264
262
Consolidated Permit
Requirement; Standards
Applicable to Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities
                                                                               Interim Final Rule
Standards Applicable to Owners    Suspension of
and Operators of Hazardous       Annual Report
Waste Treatment, Storage, and     Requirements
Disposal Facilities

-------
  FEDERAL  REGISTER  NOTICES WITH   RCRA  ENFORCEMENT  RELEVANCE
                                       (Part 265)
                                      - v* -   %%sv -rtv-wv -. <-"^xv. rtx^v. f f,f  w V   * 
                                                          BTtE
S^vl^t,  > " s WWWW<<^
                                                                               Revised Interim
                                                                               Final Rule

-------
  FEDERAL  REGISTER  NOTICES  WITH   RCRA ENFORCEMENT  RELEVANCE
                                       (Part 265)
04/16/82  16554
47
74
265
264
1 23
          Standards Applicable to Owners
          and Operators of Hazardous
          Waste Treatment, Storage, and
          Disposal Facilities; Liability
Revised Interim
Final Rule
06/25/82  27520
47
122
265
264
122
          The Hazardous Waste
          Management System
Interim Final
Amendments to
Interim Final and
Final Rules
07/13/82  30446       47     134
          265
          264
                            Standards Applicable to Owners
                            and Operators of Hazardous
                            Waste Treatment, Storage, and
                            Disposal Facilities; Liability
                                     Recrements
                                         Final Rule and
                                         Notice of Extension
                                         Dates
07/26/82  32274       47     143
                 265
                 264
                 260
                 122
                     Hazardous Waste Management
                     System: Standards Applicable to
                     Owners and Operators of
                     Hazardous Waste Treatment,
                     Storage, and Disposal Facilities:
                     EPA Administered Permit
                     Programs
                                         Interim Final Rule
                                         with Request for
                                         Comments
10/12/82  44938       47     197
                 265       Hazardous Waste Management
                 264       System: Standards Applicable to
                 262       Owners and Operators of
                            Hazardous Waste Treatment,
                            Storage,.andI Disposal Facilities
                                                   Notice Concerning
                                                   Compliance Dates
01/28/83  3977
48     20
          265
          264
          262
           Hazardous Waste Management
           System; Standards Applicable to
           Generators of Hazardous Waste
           and Owners and Operators of
           Hazardous Waste Treatment,
           Storage, and Disposal Facilities
                                         Final Rule
06/30/83  30113       48     127
                 265
                 264
                 261
                 124
                     Hazardous Waste Management
                     System; Permit Program,
                     Identification and Listing of
                     Hazardous Waste; Standards and
                     Interim Status Standards for
                     Owners and Operators of
                     Hazardous Waste Treatment,
                     Storage, and Disposal Facilities
                                         Correction Final
                                         Rule
11/22/83  52722       48     226
                 265       Hazardous Waste Management
                            System;  Interim Status Standards
                            for Owners and Operators of
                            Hazardous Waste Treatment,
                            Storage, and Disposal Facilities
                                                   Final Amendments
11/21/84  46095       49     226
                 265       Interim Status for Owners and
                            Operators of Hazardous Waste
                            Treatment, Storage, and Disposal
                            Facilities
                                                                                Technical
                                                                                Amendments

-------
  FEDERAL  REGISTER  NOTICES  WITH  RCRA ENFORCEMENT RELEVANCE
                                      (Part 265)
01/04/85   614
                     50
                                      265
                                      264
                                      261
                                      260
                                      255
          Hazardous Waste Management
          System; Definition of Solid Waste
01/14/85   1999
                     50
                                      265
                                      264
                                      261
                                      270
                                      775
          Hazardous Waste Management     Final Rule
          System - Dioxin Containing Waste
04/23/85   16044
                     50
                            78
265       Hazardous Waste Management
          System; Interim Status Standards
          for Owners and Operators of
          Hazardous Waste Treatment,
          Storage.and Disposal Facilities
Final Rule
04/30/85   18370
                     50
                            78
265       Hazardous Waste Management
          System: Standards for Owners
          and Operators of Hazardous
          Waste Treatment, Storage, and
          Disposal Facilities
                                                                              Final Rule
07/15/85 28702 50 265
264
262
261
260
266
270
271
280
09/25/85 38946 50 178 265
270
Hazardous Waste Management Final Rule
System: Final Codification Rule
Interim Status Standards for Notice of
Owners and Operators of Implementation and
                                                Hazardous Waste Treatment,
                                                Storage, and Disposal Facilities;
                                                EPA Administered Permit
                                                Programs; The Hazardous Waste
                                                Permit Program
                                                                              Enforcement Policy
05/02/86  16422      51
                            85
                                      265
                                      264
                                      260
                                      270
          Standards Applicable to Owners
          and Operators of Hazardous
          Waste Treatment, Storage, and
          Disposal Facilities; Closure/Post
          Closure and Financial
          Responsibility Requirements
                                                                              Final Rule
05/28/86   19176      51
                            102
                                      265
          Hazardous Waste Management
          Systems: Final Codification Rule
                                                                              Correction - Final
                                                                              Rule

-------
  FEDERAL REGISTER NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                      (Part 265)
07/11/86  25350      51     133
                                      265       Standards Applicable to Owners
                                      264       and Operators of Hazardous
                                                Waste Treatment, Storage, and
                                                Disposal Facilities; Liability
                                                Coverage
                                                                             Interim Rnal Rule
07/14/86  25422      51     134
                                      265
                                      264
                                      263
                                      261
                                      260
                                      270
                                      271
                                                Hazardous Waste Management
                                                System: Standards for Hazardous
                                                Waste Storage and Treatment
                                                Tank Systems
                             Final Rule
07/15/86  29430      51     158
                                      265
                                      264
                                      262
                                      161
                                      260
                                      270
                                      271
                                                Hazardous Waste Management
                                                System: Standards for Hazardous
                                                Waste Storage and Treatment
                                                Tank Systems
                                                                             Correction - Final
                                                                             Rule
08/08/86  28556      51     153
11/07/86   40572      51     216
                                      265
                                      264
                                      265
                                      268
                                      270
                                      271
                                                Hazardous Waste Management
                                                System
                             Final Codification
                             Rule; Technical
                             Correction
                                                Hazardous Waste Management
                                                System: Land Disposal
                                                Restrictions
                             Final Rule
03/19/87  8708
                     52     53
06/04/87  21010      52     107
                                      265
                                     265
                                     264
                                     262
                                     261
                                     260
                                     268
                                     270
                                     271
07/08/87   25760      52     130
                                     265
                                     264
                                     261
                                     260
                                     268
                                     270
                                     271
Interim Status Standards for
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities

Hazardous Waste Management
System: Land Disposal
Restrictions
                                                Land Disposal Restrictions for
                                                Certain "California List" Hazardous
                                                Wastes and Modifications to the
                                                Framework
                                                                             Final Rule
                                                                             Corrections - Final
                                                                             Rule
                                                                             Final Rule

-------
  FEDERAL REGISTER  NOTICES  WITH   RCRA  ENFORCEMENT RELEVANCE
                                     (Part 265)
                                   K w.v? v..%\ .  -N  ^  ,vvy s
                                                       .wTtjr ^a$^*siiW
                                                          ^^ . ^    .-   ^    fff..": T.ffiffiri:';r..^..':....^...':^ ..*:.
09/23/87 44314 52 222 265
264
Liability Requirements for
Hazardous Waste Facilities:
Corporate Guarantee
Final Rule
12/01/87 45748 52 230 265
264
270
271
144
03/10/88 7740 53 47 265
264
270
Hazardous Waste Codification
Rule for the 1984 RCRA
Amendments
Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities - Closure/Post
Closure and Financial
Responsibility Requirements
Codification Rule
Corrections - Final
Rule
03/28/88  9944
53
07/19/88  27165       53
                           59
                           138
265
                265
                264
                262
                268
                138
09/01/88  33938       53
                           170
09/02/88  34086      53
                           171
                265
                264
                265
                264
                260
                270
09/02/88  34087      53    171
                                     265
                                     264
                                     260
                                     270
Interim Status Standards for
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
Clarification
          Farmer Exemptions
                                                                            Technical
                                                                            Corrections
          Standards Applicable to Owners
          and Operators of Hazardous
          Waste Treatment, Storage, and
          Disposal Facilities - Liability
          Coverage
                             Final Rule
          Hazardous Waste Management
          System: Standards for Hazardous
          Waste Storage and Treatment
          Tank Systems
                                                                            Final Rule
                          Hazardous Waste Management
                          System: Standards for Hazardous
                          Waste Storage and Treatment
                          Tank Systems
                                       Final Rule
09/28/88  379312
                     53
       188
265
264
270
124
EPA Administered Hazardous      Final Rule
Waste Permit Programs and Permit
Modifications for Hazardous Waste
Management Facilities

-------
FEDERAL REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE

                          (Part 265)
                         % \ ""v .,%s %~- o\5 sssVs ;s s
06/23/89 26594 54 120 265
264
266
268
271
148
08/14/89 33376 54 155 265
264
270
11/29/89 49164 50 230 265
264
261
266
271
06/26/90 25976 55 123 265
264
08/02/90 31387 55 149 265
264
261
268
271
302
09/27/90 39409 55 188 265
264
261
268
271
302
12/06/90 50450 55 235 265
270
271
260
261
262
264
Land Disposal Restrictions for
Second Third Scheduled Wastes
Delay of Closure Period for
Hazardous Waste Management
Facilities
Hazardous Waste Management
System; Burning of Waste Fuel
and Used Oil Fuel in Boilers and
Industrial Furnaces
Standards Applicable to Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste; Toxicity
Characteristics Revision
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste; Toxicity
Characteristics Clarification
Identification and Listing of
Hazardous Waste; Wood
Preserving
Final Rule
Final Rule
Final Rule
Correction - Final
Rule
Correction - Final
Rule
Clarification - Final
Rule
Final Rule

-------
   FEDERAL  REGISTER  NOTICES  WITH   RCRA ENFORCEMENT  RELEVANCE
                                      {Pan 266)"
04/11/85  14216      50     70
266
261
260
Hazardous Waste Management    Corrections
System - Definition of Solid Waste  Technical



07/15/85  28702      50
08/20/85  33543      50     161
266
265
264
262
261
260
270
271
280
Hazardous Waste Management
System: Final Codification Rule
Final Rule
266       Hazardous Waste Management    Technical
261       System; Definition of Solid Waste  Corrections
04/13/87  11821      52     70
      ^x^^>^cctt4N
04/13/87  11822      52     70
06/05/87  21306      52     108
266
261
266
261
266
261
Hazardous Waste Management    Technical
System: Burning of Waste Fuel    Corrections
and Used Oil Fuel in Boilers and
Industrial Furnaces
Hazardous Waste Management    Technical
System: Burning of Waste Fuel    Corrections
and Used Oil Fuel in Boilers and
Industrial Furnaces
Hazardous Waste Management    Technical
System: Definition of Solid Waste   Corrections
06/23/89   26594      54     120
266
265
264
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Final Rule
Hazardous Waste Management
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Industrial Furnaces
                                                                             Final Rule

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  FEDERAL  REGISTER  NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
02/13/81  12414
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 267      Interim Standards for Owners and
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  FEDERAL REGISTER  NOTICES WITH  RCRA  ENFORCEMENT RELEVANCE
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FEDERAL REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
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FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE


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06/22/89  26198      54    119
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08/14/89  33376      54    155
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                                                 Delay of Closure Period for
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                                                                               Final Rule

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  FEDERAL REGISTER NOTICES WITH   RCRA ENFORCEMENT RELEVANCE
12/06/90  50450
55   235
270
271
260
261
262
264
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Identification and Listing of
Hazardous Waste; Wood
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   FEDERAL REGISTER NOTICES WITH   RCRA  ENFORCEMENT  RELEVANCE
                                      (Part 271;
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  FEDERAL  REGISTER NOTICES WITH   RCRA  ENFORCEMENT  RELEVANCE
                                     (Part 271]
07/14/86  25422
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10/24/86  37725      51     206
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                                               Final Rule
11/07/86  40572      51     216
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                   Restrictions
                                      Final Rule

06/04/87  21010
52
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271
270
268
265
264
262
261
260
Hazardous Waste Management
System: Land Disposal
Restrictions
Corrections - Final
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FEDERAL  REGISTER NOTICES WITH  RCRA  ENFORCEMENT RELEVANCE
                             (Part271)
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Certain "California List" Hazardous
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Exception Reporting for Small Final Rule
Quantity Generators of Hazardous
Waste
Hazardous Waste Codification Codif icatton Rule
Rule for the 1984 RCRA
Amendments
Land Disposal Restrictions for Final Rule
Second Third Scheduled Wastes
Hazardous Waste Management Final Rule
System: Identification and Listing
of Hazardous Waste and CERCLA
Hazardous Substances
Designation; Reportable Quantity
Adjustment Methyl Bromide
Production Wastes
Hazardous Waste Management Final Rule
System; Burning of Waste Fuel
and Used Oil Fuel in Boilers and
Industrial Furnaces
Hazardous Waste Management Final Rule
System: Identification and Listing
of Hazardous Waste; CERCLA
                                     Hazardous Substance
                                     Designation, Reportable Quantity
                                     Adjustment

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FEDERAL REGISTER NOTICES WITH  RCRA ENFORCEMENT RELEVANCE
                         (Part 271)
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05/02/90 18496 55 85 271
261
302
08/02/90 31387 55 149 271
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265
264
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09/27/90 39409 55 188 271
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264
261
302
11/02/90 46354 55 213 271
261
12/06/90 50450 55 235 271
260
261
262
264
265
270
' s TITLE xv- f^t^ftSWl
Hazardous Waste Management Final Rule
System: Identification and Listing
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Hazardous Substance
Designation and Reportable
Quantity Adjustment -1 , 1
Dimethyl Hydrazine Production
Wastes
Hazardous Waste Management Correction - Final
System: Identification and Listing Rule
of Hazardous Waste; Toxicity
Characteristics Revision
Hazardous Waste Management Clarification - Final
System: Identification and Listing RU|e
of Hazardous Waste; Toxicity
Characteristics Clarification
Hazardous Waste Management Final Rule
Systems; Identification and Listing
of Hazardous Waste; CERCLA
Hazardous Substance
Designation
Identification and Listing of Final Rule
Hazardous Waste; Wood
Preserving

-------