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
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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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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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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
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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.
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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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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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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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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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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-by°Rule 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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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
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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.
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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.
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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;
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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.
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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
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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
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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.
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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
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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
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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.
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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
-------
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
-------
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
-------
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
J€rmit,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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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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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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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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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.
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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.
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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.
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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.
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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;
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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 copy—no
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
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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
copy—no 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.
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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.
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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
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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.
Retyped From The Original
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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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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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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
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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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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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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 violations—failure 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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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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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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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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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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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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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
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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.
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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
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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
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Section 12
Settlement
-------
SETTLEMENT
to
w
O
O
z
-------
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
-------
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
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GUIDANCE FOR DRAFTING JUDICIAL CONSENT DECREES
EPA GENERAL ENFORCEMENT POLICY # GM -17
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
EFFECTIVE DATE:
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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.
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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
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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
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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.
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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
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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.
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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.
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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.
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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
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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.
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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.
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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).
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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
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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.
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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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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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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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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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- 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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.
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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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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.
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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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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
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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.
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(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
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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
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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.
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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
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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.
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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
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(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.
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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].
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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
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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
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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
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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.
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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]
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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
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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)].
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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,
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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.
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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.]
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(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.
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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.
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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
-------
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
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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
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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
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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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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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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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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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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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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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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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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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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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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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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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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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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.
-------
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
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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".]
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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
S»SMW««MWWKWM«««tf«MW««WI
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;wAsw«swiw;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''-<<«rt'<'Xrtv*-
09/25/81 47429 46 186
11/17/81 565582 46 221
11/22/82 2506
48 225
261
261
261
Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
^^^^^^^^^^to^^K^^^^^«l^«lft^^^^^^
Hazardous Waste Management
System Identification and Listing
of Hazardous Waste
Interim Final Rule
Interim Final Rule
Hazardous Waste Management
System; Standards for Owners
and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; Hazardous
Waste PerrnilI Programs
Final Rule
01/20/83 2530
48 13
2 61 Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste
Interim Final Rule
and Request for
Comments
04/01/83 14146 48 64
261
260
262
263
164
165
Environmental Permit
Regulations: RCRA Hazardous
Waste
Final Rule
04/08/83 15256 48
06/30/83 30113
48
69
127
261
261
264
265
124
Hazardous Waste Management
System - General
Technical
Amendment to Final
Rule
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
vwwwwwwwwvvvmfwv^w^^
02/10/84 5312
49 29
261
Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste
Interim Final Rule
and Request for
Comments
05/10/84 19923 49 92
261
Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste
Final Rule
06/05/84 23287 49 109
261
Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste
Final Rule
11/13/84 44980 49 220
261 Hazardous Waste Management
System; Identification and Listing
of Hazardous Waste
Final Rule and
Denial of
Rulemaking Petitiori
-------
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
-------
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
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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
-------
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
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Hazardous Waste Management
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Hazardous Waste Management
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Hazardous Waste Management
System: Identification and Listing
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Hazardous Waste Management
System: Identification and Listing
of Hazardous Waste
Hazardous Waste Management
System: Identification and Listing
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System: Identification and Listing
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11/17/86 41483 51
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11/17/86 41486 51
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11/17/86 41493 51
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System: Identification and Listing
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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
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06/05/87 21306 52 108 261
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Hazardous Waste Management
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08/03/87 28697 52 148 261
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08/12/87 29849 52 155 261
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02/18/88 4850
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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
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Technical
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Denial
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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
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Hazardous Waste/Land Disposal
Restrictions
Administrative Stay
02/01/89 5081
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System: Identification and Listing
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Final Exclusion
03/22/89 11706 54
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System: Identification and Listing
of Hazardous Waste
Final Exclusion Rule
04/20/89 15938 54
75
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System: Identification and Listing
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05/01/89 18503 54
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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
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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
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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
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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
-------
FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
• (Part 261)
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05/02/90 18496 55 85
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System: Identification and Listing
of Hazardous Waste and CERCLA
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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
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Exclusion
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06/13/90 23935
07/17/90 29017
55 114
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System: Identification and Listing
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Rule
Final Rule
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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
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265
270
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12/17/90 51707 55 242 261
Hazardous Waste Management Final Rule
System; Identification and Listing
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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
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01/26/81 8395 46 16 262
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10/12/82 44938 47 197 262
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-------
FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
(Part 262)
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FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
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07/19/88 27165
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Expiration Date
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Hazardous Waste
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Hazardous Waste; Wood
Preserving
-------
FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
12/31/80 86970 45 252
263
262
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Transportation of Hazardous Interim Final
Waste By Rail Amendment
04/01/83 14146 48 64
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03/24/86 10146 51 56
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07/14/86 25422 51 134
263
261
260
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System: Standards for Hazardous
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Tank Systems
Final Rule
08/08/86 28664 51 153
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262
261
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Hazardous Waste Management
System; Exports of Hazardous
Waste
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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
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Final Rule
11/17/80 76074 45 223
264
254
260
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General Standards Applicable to
Owners and Operators of
Hazardous Waste Treatment,
Storage, and Disposal Facilities
and EPA Administered Permit
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Final Amendments
to Rule
11/19/80 76626 45 235
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12/31/80 86968 45 252
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12/31/80 86970 45 252
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01/12/81 2802
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01/23/81 7666
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165 and Operators of Hazardous
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and Final Rule
01/26/81 8395
46 16 264 Standards Applicable to Owners Suspension of
262 and Operators of Hazardous Annual Report
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Disposal Facilities
05/21/81 27473 46 97
264
261
260
265
Hazardous Waste Management
Systems
Corrections to
Interim Final and
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-------
FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
(Part 264)
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07/07/81 35246 46 129
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260
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Hazardous Waste Management Revision to Interim
System: Identification and Listing; Final and Final
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and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; EPA
Administered Permit Programs
11/06/81 55112 46 215
264
260
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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
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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
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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
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04/16/82 16554
47 74 264 Standards Applicable to Owners
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06/25/82 27520
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07/13/82 30446
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Waste Treatment, Storage, and
Disposal Facilities; Liability
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Final Rule and
Notice of Extension
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-------
FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
07/26/82 32274
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264
260
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Hazardous Waste Management
System: Standards Applicable to
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07/26/82 32384
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07/26/82 32356 47 143
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08/18/82 36097 47 160
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10/12/82 44938 47 197 264
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Owners and Operators of
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FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
(Part 264)
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07/15/85 28702 50 264
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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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Permit Regulations; Revision in Final
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Hazardous Waste Management pjnal
System - General - Standards for
Generators of Hazardous Waste;
State Hazardous Waste Program
Requirements
Rule
Rule
07/15/85 28702 50
271
270
266
265
264
262
261
260
280
Hazardous Waste Management
System: Final Codification Rule
Final Rule
10/23/85 42936 50 205
271 Hazardous Waste Management
261 System; Identification and Listing
of Hazardous Waste
Final Rule
12/31/85 53315 50 251
271 Hazardous Waste Management
261 System: Identification and Listing
of Hazardous Waste
Final Rule
03/24/86 10146 51 56
271
270
263
262
261
260
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
;te Programs
Final Rule
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FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
(Part 271]
07/14/86 25422
134
271
270
265
264
263
261
260
Hazardous Waste Management Final Rule
System: Standards for Hazardous
Waste Storage and Treatment
Tank Systems
07/15/86 29430 51 158
271
270
265
264
262
161
260
Hazardous Waste Management Correction • Final
System: Standards for Hazardous Rule
Waste Storage and Treatment
Tank Systems
08/08/86 28664 51 153
271
263
262
261
260
Hazardous Waste Management
System; Exports of Hazardous
Waste
Final Rule
10/24/86 37725 51 206
2 71 Hazardous Waste Management
261 System: Identification and Listing
of Hazardous Waste
Final Rule
11/07/86 40572 51 216
271
270
268
265
Hazardous Waste Management
System: Land Disposal
Restrictions
Final Rule
06/04/87 21010
52
107
271
270
268
265
264
262
261
260
Hazardous Waste Management
System: Land Disposal
Restrictions
Corrections - Final
Rule
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FEDERAL REGISTER NOTICES WITH RCRA ENFORCEMENT RELEVANCE
(Part271)
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261
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12/01/87 45748 52 230
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10/06/89 41402 54 193
11/29/89 49164 50 230
12/11/89 50968 54 236
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Land Disposal Restrictions for Final Rule
Certain "California List" Hazardous
Wastes and Modifications to the
Framework
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)
tt*;«wr
05/02/90 18496 55 85 271
261
302
08/02/90 31387 55 149 271
268
265
264
261
302
09/27/90 39409 55 188 271
268
265
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
of Hazardous Waste and CERCLA
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
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