&EPA
Unittd State*
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9837.0
TITLE: RCRA/CERCLA CASE MANAGEMENT HANDBOOK
" * *
APPROVAL DATE: AUGUST 8, 1984
EFFECTIVE DATE: AUGUST 8, 1984
ORIGINATING OFFICE: OWPE
E FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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•PA
United States Environmental Protection Agency &&&$£%
•,-•' Washington. DC 20480 QjP%7 C
OSWER Directive initiation Reauesty
Originator Information
SSr&Sfexlde
9
ERR
SW
D OUST
13 OWPE
D AA-OSWER
Mail Code
WH-527 1 — K
Interim Directive Number
9837.0
Telephone- Number
382-4819
Approved for Review
Signature of Office Director *
Date
tA/CERCLA Case Management Handbook
)f Directive
he RCRA/CERCLA Case Management Handbook provides guidance
o enforcement personnel in EPA Headquarters and Regional
ffices, as well as the Department of Justice on the
evelopment and management of RCRA and CERCIA judicial
ctions. The manual addresses identifying cases for
eferral, pre-referral case development, preparation of
eferrals, case management and technical support for
itigation.
manual, handbook, case management referrals,
litigation, case development, technical support,
enforcement action, judicial
ective (Manual. Policy Directive. Announcement, etc.l
dnual
*
Status
Di PTrl
Draft
0 Final
l/J New
LJ Revision
iirective Supersede Previous Oirectivels)? | | Yes [j^No Does It Supplement Previous Directives)? | | Yes | \ No
• V
Either Question. What Directive (number, title!
n
^-OSWER
ERR
SW
D OUST
[D OWPE
LJ Regions
:st Meets OSWER Directives System
of Lead Of)
3f OSWER
jce Qite'ctiweft-Officer
Directives Officer
LJ OECM B Other (Specify)
D OGC
LJ OPPE
Format
-*
Date__ ~
Date
1315-17(10-85)
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OSWER # 9837.0
The LiJUbook is Intended to be a living document. It
presently edfcBSlsts of six chapters In loose-leaf fora to allow
for periodfe additions and revisions. The first planned revision
vill be the faidance and operating procedures for cost recovery
actions. By separate memorandum, Gene Lucero will provide detailed
instructions on the maintenance of this Handbook consistent with
EPA procedures.
Two workshops on this Handbook are planned for regional
supervisors in both the technical enforcement and Regional
Counsel areas. The first session is tentatively scheduled for
Washington, D.C. in early October. It will involve personnel
from Regions I-V. A second session for Regions VI-X, and those
who were not able to attend the first session, will be held in
Denver. Each of our organizations will be Involved in presenting
these workshops. Further information will be forthcoming on the
workshops from OVPE in the near future.
Both EPA and DOJ have provided valuable Input into the
deve'cpnent of the RCRA/CERCLA Case Management Handbook. It
is, however, a document which must be continually reviewed and
updated. We look forward to hearing your comments on its use-
fulness and applicability to -the continuing task of preparing
quality enforcement cases. W-lth recent delegations from EPA
Headquarters to the Regions and with the rapid growth in both
RCRA and CERCLA enforcement, it is absolutely essential that «e
manage our work in such a way as to assure cases are developed
which can be referred and filed in a timely and efficient way.
We hope this Handbook helps achieve that goal.
Addressees: ;
•Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
Departmen* of Justice, Land and Natural Resources Division
Office of Enforcement and Compliance Monitoring
Vaate Management Division Directors, Regions I and V
(v/o attachment)
Air and Waste Management Division Directors, Regions II, III, IV,
VI, VII, VIII, and X
(w/o attachment)
Toxics and Waste Management Division Director, Region IX
(w/o attachment) • -
Management and Organization Division
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TABLE OF CONTENTS
OSWER * 9837.0
CHAPTER I
IDENTIFICATION OF ENFORCEMENT CASES TO BE REFERRED
FOR POSSIBLE JUDICIAL ACTION 1-1
A. Judicial Referral Defined 1-1
B. Types of Relief Available as a Result
of a Judicial Referral 1-2
C. Khen to Recommend Judicial Instead of
Administrative Action 1-3
D. Roles and Responsibilities in Making
Enforcement Option Decisions. ........ 1-4
E. Roles and Responsibilities Regarding
Enforcement Management Accountability . . . . 1-6
1. RCRA 1-6
2. CERCLA 1-7
CHAPTER II
PRE-REFERRAL CASE DEVELOPMENT PROCESS II-l
A. Background for Case Development II-l
B. Initiation of Judicial Referral 11-11
C. Preparation of a Referral Package 11-12
D. Referral to Headquarters 11-14
CHAPTER III
DESCRIPTION OF EPA HAZARDOUS WASTE CIVIL REFERRAL PACKAGE. III-l
A. Cover Letter. . III-l
B. Referral Package Contents III-l
i
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usWER * 983".0
CHAPTER IV
CASE MANAGEMENT AFTER REFERRAL .............. IV- 1
A. General Principles: The Case Litigation
Teair. .............. ....... IV- 1
B. Document Organization ............ IV- 5
C. Analysis of Referral ............. IV- 5
D. Requests to withdraw Referral or Delay
Filing. . .' ......... ........ IV- 5
E. Pleadings, Dispositive Motions, and Other
Substantive Motions . ............ IV- 5
F. Preparation of the Government-Initiated
Discovery .................. IV- 5
-
G. Response to Defendant's Discovery ...... IV-
K. Requests for Additional Support During
Litigation .................. IV- 7
I. Outside Contacts ..... .......... IV- 7
J. Negotiations and Settlement ......... . IV- 7
K. Updates on Evidence ............. IV- 6
L. Pretrial Order ............. ... IV-8
K. -Trial ..... .............. .. IV-6
CHAPTER V
TECHNICAL SUPPORT FOR LITIGATION ............. V-l
A. Endangerment Assessment ........... V-l
B. Feasibility Study for Enforcement . ..... V-6
C. Expert Witnesses ........ ... 1 ... V-7
D. Case Budgets For Imminent Hazard Cases
(CERCLA: RCRA 3013 and 7003) ........ V-9
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OSVJER f' 9837.0
CHAPTER VI
POST-JUDGMENT FOLLOK-U? VI-1
A. Action Requiring Tracking or Follow-up. . . . VI-1
B. Preferred Roles for Tracking Enforcement
Actions VI-1
C. Constraints and Obstacles to Post Judgement
Follow-up VI-3
LIST OF ABBREVIATIONS AND ACRONYMS
111
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EXHIBITS OSWER 2 9837.0
Exhibit 1-1
Roles and Responsibilities in Making Enforcement
Option Decisions 1-5
Exhibit II-l
Regional Program's Initial Responsibilities in Case
Development II-2
Exhibit II-2
Meetings with Responsible Parties After Notice
Letter Issuance in Presumed Class I and II Cases . . II-6
rf
Exhibit II-3
Choice of Enforcement Response II-8
Exhibit II-4
Follow Up on Administrative Enforcement II-9
(continued) . . . 11-10
Exhibit II-5
Litigation Tear. 11-13
Exhibit II-6
Headquarters Review Process . 11-16
(continued). ....... . 11-17
Exhibit III-l
Elements of the Case Referral Cover Letter III-2
Exhibit IV-1-
General Steps of Case Management IV-2
(continued) IV-3
Exhibit IV-2
Preparation of Pleadings and Motions IV-6
Exhibit V-l
Preparation of an Endangerment Assessment:
Outline of Contents V-4
(continued) V-5
Exhibit VI-1
Post Judgment Responsibilities . VI-2
v
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OSvvER r 9837.C
APPENDICES
Appendix 1
Prima Facie Case — §107 (CERCLA) A-l
thru A-5
Documentation for SIC7 (CERCLA). .......... A-6
thru A-15
Appendix 2
Prima Facie Case — §106 (CERCLA) A-16
thru A-18
Appendix 3
Prima Facie Case — §70C3 (RCRA) .............. A-19
thru A-23
Appendix 4
Prima Facie Case — §303 (Clean'Air Act) .......... A-24
thru A-27
Appendix 5
Prima Facie Case — §504 (Clean Water Act) A-2 6 .
thru A-35
Appendix 6
Prima Facie Case — Safe Drinking Water Act. ........ A-36
thru A-39
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OSVER f 9837.0
I. IDENTIFICATION OF ENFORCEMENT CASES TO BE
REFERRED FOP. POSSIBLE JUDICIAL ACTION
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OSVER t 983
I. IDENTIFICATION OF ENFORCEMENT CASES TO BE
REFERRED FOR POSSIBLE JUDICIAL ACTION
This chapter describes general background information and roles and re-
sponsibilities with regard to enforcement case referrals. It defines judicial
referral, specifies the types of judicial relief available, describes various
referral indicators, enumerates the responsibilities for identification and
timely referral of candidate cases, and discusses enforcement management
accountability.
A. Judicial Referral Defined
Before a suit can be filed in any court to enforce the environmental
statutes EPA has been charged to uphold, EPA must deliver a written pro-
posal to the Department of Justice (DOJ). Such a proposal formally re-
quests that a suit be filed by DOJ or. behalf of the Agency. This written
proposal and delivery is an EPA "judicial referral." Once the referred
case has beer, filed, it becomes a "judicial action."
Judicial actions should be carefully distinguished from adtr.ir.istra-
tive actions. Any action that a statute or regulation authorizes EPA to
take, but does not involve filing papers with a court and is not part cf
of the process of prosecuting a case already filed in court, is an admini-
strative action.
Examples of administrative actions include:
Issuance of notices of violation under Section .113 of the Clean
Air Act and other Acts providing for such notices;
Issuance of Administrative Complaints and Orders (usually called
"compliance" or "administrative" orders) under Section 309 of
the Clean Water Act, Sections 3008 and 3013 of the Resource Con-
versation and Recovery Act (RCRA) and various other Acts author-
izing such orders;
Issuance of "emergency" or "imminent and substantial" orders
under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) Section 106, RCRA Section 7003, Clean Air
Act (CAA) Section 303, Clean Water Act (CKA) Section 504, Toxic
Substances Control Act (TSCA) Section 7, and Safe Drinking Water
Act (SDWA) Section 1431;
Issuance of formal requests for information under Section 308 of
the Clean Water Act and various other Acts authorizing such
requests;
Issuance of subpoenas under Section 11 of the Toxic Substances
Control Act;
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OSWER * 9S37.0
Issuance of any "extra statutory" notice document such as let-
ters to potentially responsible parties under CERCLA;
Issuance of complaints for civil penalties under Section 16 of
the Tcxic Substances Control Act or other Acts authorizing such
complaints (either issued separately or combined with a compli-
ance order) .
This list is fairly complete, but should not be considered all-
encompassing.
B. Types of Relief Available as a Result of a Judicial Referral
Once a referred case has beer, filed, courts have a c.-est variety of
remedies within their power. Trie five major categories of judicial relief
are:
Money judgments
Ir.jar.ctive or similar forr of specific relief
In reir. relief
Declaratory judgments
Criminal redress.
Not all categories of relief are specifically set forth ir. each ststutr
for redress of particular violations. Each statute E?A is charged witr.
enforcing differs in its provisions relating to judicial relief. Vari-
ous combinations of these remedies may be appropriate and available under
_titlfe 2 6 or other -federal statutory provisions. These five categories of
relief are discussed below.
A judgment for the recovery of money may be for (a) the recovery of
civil penalties specified by statute, (b) the recovery of out of pocket
costs and expenses cf EPA or those EPA represents, or (c) the recovery of
damages (e.g., harm caused to natural resources as provided in CERCL.A).
Injunctive or other specific relief that is available for enforcement
of most EPA statutes includes mandatory and prohibitory temporary re-
straining orders, mandatory and prohibitory preliminary or final injunc-
tions, and any other order of a court that directs the performance of an
act or prohibits the commission of en act. A court order that directs a
person to spend money to accomplish a specified result has traditionally
been considered "specific" equitable relief and not a money judgment.
In rem relief.involves the seizure of specific articles or any other
legally authorized remedy directed to property rather than persons. In
rem relief involves the arrest, seizure and/or condemnation of specific
real or personal property and other forms of relief directed to property
rather than persons, such as foreclosure of a lien. Examples include con-
demnations of land under powers of eminent domain, judicial seizures and
condemnations under federal food and drug laws, and various actions in-
admiralty against vessels or contraband.
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1-2
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OSKER f 9E37.
A declaratory judgment is a court decision or. e pcir.t of law that is
a focus of dispute between the litigants. Such a judgment merely declares
the law but does not direct specific relief. However, actions seeking a
declaratory judgment often include a request for specific relief. Subse-
quent actions for specific relief may also follow the issuance of a
declaratory judgment.
Criminal judgments impose fines or imprisonment, or various forms of
probation based upon specified conditions. Some combination of these
punitive judgments is also possible.
C. When to Recommend Judicial Instead of Adrinistrative Action
EPA has a number of enforcement tools to use in implementing environ-
mental laws and regulations. These include both administrative and judi-
cial actions. The type of enforcement action chosen in each case should:
Procure coir.piiar.ce in the most timely manner
Halt further violations as soon as possible
Rapidly cure the consequences of violations
Use the least amount of EPA and other governmental resources.
The facts of each case will largely determine whether a judicial remedy or
an administrative remedy will be sought.
Agency experiences to date have pointed out certain types of cases or
situations that usually warrant judicial relief. Typically, those situa-
tions a~e where:
A party fails to comply with an administrative order
Immediate relief in the form of an injunction is needed to pro-
tect the public from imminent hazards
•
Penalties are important for deterrence purposes and cannot be
imposed for the violation in question except by judicial order
Penalties imposed through the administrative process, or costs
recoverable under the liability provisions or various statutes .
(e.g., CERCLA §107, CKA $311) must be judicially collected
Long-term specific conduct by a violator is to be compelled.
These five situations may be used as guidance in attempting to identify
potential judicial referrals.
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OSWER * 9837.0
Not every case that falls into one of ttfese categories is a candidate
for referral, however. CERCLA Section 106 administrative orders may be an
important exception to the general rule that judicial decrees (or, consent
or after litigation) are the most readily enforceable devices in cases of
compelling long-terir. specific conduct. On the other hand, judicial re-
ferral is particularly appropriate when attempting to deter others simi-
larly situated, giver, the greater notoriety associated with judicial
proceedings.
D. Roles and Responsibilities in Making Enforcement Option Decisions
Enforcement option decisions are made in the first instance by three
different groups: EPA Regional Administrators, EPA Regional Counsels and
the EPA Criminal Enforcement Division.* The roles and responsibilities of
each are displayed in Exhibit 1-1 and discussed below.
The Regional Administrator (RA) is responsible for identifying non-
complying sources and potential enforcement targets and, after consulting
with Regional Counsel, making the final decision on appropriate Agency
response to violations. Ke or she must also ensure that the option selec-
tee is properly initiated in a timely manner. If one type of formal en-
forcement action is not sufficient, it is the RA's responsibility, in con-
sultation with the Regional Counsel (RC), tc initiate a more stringent
enforcement action in a timely manner.
For judicial referrals in particular, Regional Counsel must be con-
sulted; however, it is the Regional Administrator's responsibility to de-
cide whether to refer a case. It should be noted that declining to refer
a matter as a civil judicial action does not preclude administrative en-
forcement or referral as a criminal matter.
Throughout the process, Regional Counsel is the attorney to the Re-
gional Administrator and program clier.t. All judicial referrals should be
accompanied by a concurrence from the Regional Counsel. Once a referred
case has been filed, the Regional Counsel is specifically responsible for
providing timely and effective legal support. The Regional Administrator
is responsible for ensuring that the regional technical office provides
adequate technical support. In addition, whenever the -Regional Admini-
strator (or his/her program designee) must make decisions and take actions
with legal consequences, he or she must ensure that the Regional Counsel
is consulted; this includes but is not limited to, the issuance of any
formal administrative notices of violation, orders or complaints.
With respect to both civil and criminal judicial referrals, they must be
reviewed by and have the concurrence of the Assistant Administrator for
the Office of Enforcement and Compliance Monitoring (OECK). The AA for
OECM must notify the AA for OSWER and the appropriate RA when a case is
referred to the DOJ and when an appeal is formally initiated.
1-4
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EXHIBIT 1-1
ROLES AND RESPONSIBILITIES IN MAKING
ENFORCEMENT OPTION DECISIONS
Regional Administrator
i
in
Identifies non-complying sources
and potential enforcement targets
Consults with Regional Counsel
or enforcement options
Hakes final decision on appropriate
Agency response to violations.
Such responses may include:
- Requests for information
- Information discussions with
the source
- Warning letters or notices of
violation
- Administrative orders or
complaints
- Civil judicial referrals
Coordinates enforcement actions with
states
Ensures follow-up on all enforcement
actions and initiates more stringent
actions where necessary
Participates in a client's role in
administrative or judicial settlement
discussions
Ensured that technical litigation
support is being adequately provided
by regional personnel
Regional Counsel
Advises RA on
enforcement optionr
Assists in preparation
of and concurs on
judicial referrals
Ensures that legal
litigation support
is being.adequately
provided hy regional
personnel
Refers criminal cases,
usually with the con-
currence of the special
agent in charge, to
Headquarters
EPA Criminal Enforcement
Division
Special agent in Charge
may refer criminal
cases
Coordinates with
Regional Counsel and
apprises RA of criminal
case referrals
PO
-n.
vo
CO
OJ
o
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OSWER £ 9837.0
In criminal matters, cases can only be referred for criminal prosecu-
tion by the Regional Counsel or the Special Agent In Charge. The Regional
Administrator is not involved directly in criminal referrals although he
or she should ordinarily be made aware of them. It should also be noted,
that EPA's Criminal Enforcement Division has independent investigative
authority for potential criminal violations. To the extent feasible, that
Division should coordinate its activities with the appropriate EPA re-
gional program and legal offices.
E. Roles ana Responsibilities Regarding Enforcement Management
Accou.-.tat-ility
In. the rapidly chancing area of hazardous waste enforcement, proper
management of•enforcement activities is critical to the success of the
program. To ensure that enforcement efforts are proceeding satisfactor-
ily, each Regional Administrator is specifically accountable to the Admin-
istrator of the Agency for meeting specified enforcement accountability
targets within the Region. Achievement of these targets is generally a
performance standard in each Regional Administrator's performance
agreement.
OSWEP. has initiated management, tracking and reporting systems fcr
the RCRA and CERCLA hazardous waste enforcement program activities. These
systems facilitate headquarters and regional management of the hazardous
waste program and in addition to the Strategic Planning and Management
System (SPMS) and the Action Tracking System (ATS), ensure that Agency
statutory, regulatory, and policy objectives are met. .These systems
include the RCRA Enforcement Management System (REKS) and the Superfund
Consolidated Accomplishments Plan (SCAF). In FY 1985, the SCAP process
will be inclusive of the Remedial Accomplishments Plan (RAP) and the
Regional Enforcement Accomplishments Plan (REAP) to ensure that planning
and other activities concerning all categories of National Priorities List
sites are managed effectively. The SCAP process requires the
'identification of N?L sites targeted for action in the current fiscal
year. Similarly, the REMS process combines targeting, projections and
enforcement strategy to ensure that RCRA program objectives are met.
1. RCRA
Several general principles should be key considerations in de-
veloping an enforcement management strategy in the RCRA area. In the
early stages of a program, when new and complex requirements apply,
vigorous enforcement is critical for promoting information exchange '
and to ensure that the regulated community understands both what-is
necessary to attain compliance and that it is in their best interest
to comply. In imminent hazard situations, and in cases of particu-
larly egregious violations, rapid and decisive enforcement action is
needed to protect health and the environment.
These general principles should be applied in the RCRA program
through a focus on three types of activities:
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1-6
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OSWER £ 9837.0
In criminal matters, cases car. only be referred for criminal prosecu-
tion by the Regional Counsel or the Special Agent In Charge. The Regional
Administrator is not involved directly in criminal referrals although he
or she should ordinarily be made aware of their.. It should also be noted,
that EPA's Criminal Enforcement Division has independent investigative
authority for potential criminal violations. To the extent feasible, that
Division should coordinate its activities with the appropriate EPA re-
gional program and legal offices.
E. Roles and Responsibilities Regarding Enforcement Management
Accountability
In the rapidly chancing area of hazardous waste enforcement, proper
management of enforcement activities is critical to the success of the
program. To ensure that enforcement efforts are proceeding satisfactor-
ily, each Regional Administrator is specifically accountable to the Admin-
istrator of the Agency for meeting specified enforcement accountability
targets within the Region. Achievement of these targets is generally a
performance standard in each Regional Administrator's performance
agreement.
OSKEP. has initiated management, tracking and reporting systems fcr
the RCRA and CERCLA hazardous waste enforcement program activities. These
systems facilitate headquarters and regional management of the hazardous
waste program and in addition to the Strategic Planning and Management
System (SPMS) and the Action Tracking System (ATS), ensure that Agency
statutory, regulatory, and policy objectives are met. These systems
include the RCRA Enforcement Management System (RSMS) and the Superfund
Consolidated Accomplishments Plan (SCAP). In FY 1985, the SCAP process
will be inclusive of the Remedial Accomplishments Plan (RAP) and the
Regional Enforcement Accomplishments Plan (REAP) to ensure that planning
and other activities concerning all categories of National Priorities List
sites are managed effectively. The SCAP process requires the
identification of K?L sites targeted for action in the current fiscal
year. Similarly, the REMS process combines targeting, projections and
enforcement strategy to ensure that RCRA program objectives are met.
1. RCRA
Several general principles should be key considerations in de-
veloping an enforcement management strategy in the RCRA,area. In the
early stages of a program, when new and complex requirements apply,
vigorous enforcement is critical for promoting information exchange '
and to ensure that the regulated community: understands both what-is
necessary to attain compliance and that it is in their best interest
to comply, in imminent hazard situations, and in cases of particu-
larly egregious violations, rapid and decisive enforcement action is
needed to protect health and the environment.
These general principles should be applied in the RCRA program
through a focus on three types of activities:
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OSWEP # 9837.0
More effective tracking of regulated community compliance,
including the requirement for more frequent reports by
states and more effective use of the hazardous waste data
management system.
More second-level enforcement actions, including admini-
strative orders and civil actions, where needed to ensure
compliance.
More detailed oversight of state activities to track the
progress of enforcement actions at particular facilities.
A management system (REMS) has been established for tracking
RCRA enforcement activities. This system includes reporting require-
ments and a process for tracking this information. The activities
reported include oversight and non-oversight inspections, of major
handlers and other treatment, storage, disposal facilities as well as
generators and transporters. Inspection categories reported include
compliance evaluation and compliance sampling of major and non-major
handlers. Record reviews of closure plans, financial responsibility
reports, groundwater monitoring data, and exception/discrepancy re-
ports are included in the enforcement activities reported. Informa-
tion is also required on enforcement followup to inspections which
result in documentation of Class I RCRA violations. Activities
tracked include warning letters/notice of violation, $3008 refer-
rals. Warning letters/notices of violation and compliance compliants
issued to federal facilities are also tracked in the REMS process.
State reports of analogous enforcement activities are required on a
monthly basis. The REMS process should be employed by regional of-
fice staffs to assist in. defining cases for referral consistent with
the case management manual.
2. CEECLA
Under CERCLA, administrative and/or judicial enforcement author-
ities are used to secure privately financed cleanup (as an alterna-
tive to using other Superfund Trust Fund) whenever the private party
cleanup can be satisfactorily performed in a timely manner. In at-
tempting to secure this up-front private party response action the
Agency has emphasized a balanced use of administrative and judicial
authorities.
When private party cleanup is not a viable option, however,
Superfund trust fund monies will be spent to effect site cleanup and
cost recovery actions will be instituted. Cost recovery activities
seeking reimbursement and Superfund expenditures for response will be
initiated in every appropriate case where there are viable potenti-
ally responsible parties (see CERCLA $107 guidance for further infor-
mation concerning cost recovery actions!. Cost recovery actions will
be initiated on a prioritized basis consistent with annual Superfund
Consolidated Accomplishments Plan guidance. . .
-•?•*•
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II. PRE-RETEKRAL CASE OZVESMMBMT FKOCBS8
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OSWER # 9837.0
Whether pursuing private party cleanup or attempting to recoup
Superfund response expenses, tracking enforcement activities is cri-
tical to an effective enforcement management system.
Among the activities tracked, a number^ take place before the
formal enforcement process begins. These include remedial investiga-
tions and feasibility studies at enforcement lead sites, site classi-
fication, responsible party searches, financial assessments, respon-
sible party notifications and negotiations.
The CERCLA enforcement program is also composed of numerous ac-
tivities, that occur during the formal enforcement process. The fol-
lowing activities are also tracked in the SCAP process:
Supporting on-going litigation to ensure success in secur-
ing site clean-up and establishing legal precedent.
Developing new cases under §106 for site cleanup in the
enforcemer.t-ieac category of sites on the K?L.
Focusing cr. use of ad-ir.istrative orders to secure private
party clean-up removal and remedial actions.
Initiating cost recovery actions under SIC" for prioritized
completed removal actions, and all completed remedial
actions.
Follow-up on instances of non-compliance with administra-
tive orders (unilateral or on-consent) or with civil ac-
tions for enforcement. Pursue consent decree or judicial
decree non-compliance with contempt actions.
Enforcement management measures have beer, established taking
these activities into account. That system will also include track-
ing of the total numbers of administrative and civil actions under
the £ zr.ority of CERCiA.
1-6
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0£T,vE3 * 9337.0
II. PRZ-REFERRAL CASE DEVELOPMENT PROCESS
This chapter describes a recommended process for EPA's internal develop-
ment of hazardous waste cases in advance of their formal referral to the De-
partment of Justice. In this chapter, ease development background, judicial
referral initiation, referral package preparation, and referral to EPA Head-
quarters are discussed. Because of the wide range of activities and roles in
the pre=referral phase, this chapter relies heavily on exhibits to simplify
and clearly delineate exact responsibilities, products, and timeframes. The
descriptive text guides the reader to highlights of each exhibit.
Hazardous waste cases that are referred may cite RCRA, CERCLA, or both, as
well as RCRA and/or CERCLA in combination with TSCA, F2FRA, SDKA, CAA, CWA or
Refuse Act counts (see attached list of abbreviations and acronyms). This
chapter focuses on the RCRA and CERCLA- components of those cases.
A. Backero'jr.c f;r Case Developr.er.t
A number of important steps precede the designation.of a case for
judicial referral. This section, shows how RCRA and CERCLA case identifi-
cation responsibilities differ, describes the choice of enforcement re-
sponse types, and outlines administrative enforcement options.
1. Case Developrer.t Respsr.sibilities
The Regional Program Office is charged with a number of case
development responsibilities for RCRA and CERCLA actions, the scope
of which may vary depending on the type of site or incident. These
responsibilities are summarized in Exhibit II-l. For RCRA cases, the
Regional Program Office's initial primary responsibility is incident
identification. For CERCLA cases, responsible party searches and
notice are added to site identification responsibility, as are reme-
dial investigations at both CERCLA and RCRA sites. The Regional Pro-
gram Office also has responsibilities for consulting with the Office
of Regional Counsel (ORC) and for information transfer, as outlined
in the Exhibit.
Early in the case development process (prior to, or during the
development of the referral package), the lead regional legal and
technical staff members for the case should be identified and desig-
nated in writing. In the sections that follow, the key responsibili-
ties for individual case support personnel, and for offices are
described.
a. Lead Technical Representative (LTR)
The lead program contact serves as the case's technical
representative and is charged with the following responsibili-
ties:
-•**• .
II-l
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......inn1 n-i
i
REGIONAL PROGRAM'S INITIAL RESPONSIDI LITIKS
IN CASE DEVELOPMENT
RCRA
CEKCLA
HCHA AND CEKCLA
V1OIATION
REMOVAL
M
I
Inc ident
Identif icat ion
and Analysis
IMMINENT HAZARD
. Incident
Identification
and Analysis
Site Identil ic.ition
Search for Potentially
Responsible Parties
Notice to Potentially
Responsible Parties
ALLS1TBS/INCIDENTS
REMEDIAL
. Site Identification
Search for Potentially
Responsible Parties
RI/FS or Endanyerment
Assessment
. Notice to Potentially
Responsible P.irties
Inform and Consult with
Regional Counsel, UWI'K,
and UK(X as Appropr iate.
For Exiimple, as Conc<>M>s:
Response to Notice
Letters
Proposed Meetings
with Potentially
Responsible Parties
Each box shows a RCRA and/or CERCLA event. Regional responsibilities are listed in each box.
vo
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OSWER £ 9837.C
Represents Agency program office on the litigation tear.
• Marshalls prograir. resources as required, including
technical input and development
Ensures compilation and maintenance of all program-
generated case documents
Compiles factual responses to written requests daring
discovery
Ensures that lead attorneys (EPA and DOJ) are fully
briefed on all relevant policy, program and technical
issues as they arise or are anticipated
Provides technical and organizational assistance dur-
ing negotiations, discovery sessions, hearings, trial,
and similar proceedings during the course of the case.
Further responsibilities of technical personnel are describee
throughout this chapter.
b. Lead Agency Attorney (LAA)
The Lead Agency Attorney is responsible for representing
the Agency regarding the case or proposed case in dealings' with
DOJ; other federal, state, or local agencies; and defendants or
potential defendants (usually through their counsel). In
?==ition, the Lead Agency Attorney:
Represents EPA in acjudicatory administrative hearings
Ensures adequate legal input to the referral process
Ensures that all factual and technical issues raised
by the referral have been adequately addressed
Assists the Lead Trial Attorney to prepare the case
Ensures that factual responses to written requests
during discovery are properly and expeditiously
prepared
Monitors the Agency's follow-through in its resource
commitments to the case.
The Lead Agency Attorney's responsibilities are distinct from
the Lead Trial Attorney's, as shown below.
XI-3
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OSKER * 9837.0
c. Lead Trial Attorney (LTA)
The Lead Trial Attorney is normally an employee cf DOJ, and
represents the United States, including the Agency, in court.
Further, the Lead Trial Attorney represents the United States in
any proceedings or negotiations relating to a court action, or
with defendants or potential defendants.
c. Other Agency Personnel
Although many other Agency personnel may participate in the
development of a referral or preparation of a case, it is very
important that all extra-agency contacts concerning the case be
made through or with the concurrence of the Lead Agency Attor-
ney. Similarly, the Lead Trial Attorney should deal directly
with persons in the Agency on matters relating to the case in
coordination with the Lead Agency Attorney and Lead Technical
Representative.
Two special instances in which other Agency personnel have
special case development responsibilities are shown below.
These are consultation with management during case development
and post-notice letter meetings.
(1) Consultation
Consultation with the appropriate level of Agency manage-
ment during case development is also an Agency responsibility.
Since some cases can be handled fully in the Region, it may not
be incumbent upon regional personnel to seek further authority.
However, in some circumstances, described below, regional staff
need to seek additional authority.
The extent of Headquarters involvement in specific cases
corresponds directly to case-classification. • The Office of
Enforcement and Compliance Monitoring (OECX) has established
guidelines for classification of enforcement cases into four
major types:
Class I — Nationally managed cases
Class II — Nationally significant cases
Class III — Regional cases
Class IV — Direct referrals from the Regions.
For example, in complex cases with multiple parties, or cases
with precedential or rrational significance, consultation with
Headquarters legal and technical staff should be implemented
early in the process. Cases which fall within Class IV are set
forth specifically in the letter agreement between Alvin Aim and
F. Henry Habicht, II dated September 29, 1963.
II-4
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OSKEP * 9837.;
(2) Post-notice letter meetings
Affirmative responses to notice letters that require meet-
ings with responsible parties introduce a further dimension of
case development responsibility for regional staff. Exhibit
II-2 describes the relevant activities,.the personnel responsi-
bilities, and when applicable, the timeframe in which the activ-
ity must be accomplished. Regional technical case staff shall
contact the appropriate level of EPA to affirm the appropriate
extent of Headquarters technical involvement. Regional legal
case staff shall contact the appropriate level of EPA and DOJ to
affirm the appropriate extent of Headquarters and OCJ legal
involvement. Ultimate decisions regarding case management
authority and legal or technical settlement terms are made by
the AA for OE2* and the AA for OSWER. The technical staff
ensures that the feasibility study (FS) or endangerment
assessment (EA) is complete, to provide a basis for meeting and
negotiation. Within 60 days of completing the FS or EA the
meeting takes place, attended by Regional program, and legal
staff, with Headquarters and DCC as indicated. Finally, the
results of any meeting with responsible parties must be
memorialized, and copies must be sent to DECK and the Office of
Waste Programs Enforcement (OWPE) at Headquarters.
2 . Chsice of Er.f orcement Response
A number of enforcement response types may be initiated subse-
quent to RCRA violations or imminent hazards, or. CERCLA site identi-
fication. Such options include:
• A warning letter (RCRA)
An administrative order (AO) (RCRA 3006, 3013, 7003 and
'CERCLA 106)
A Fund-financed response and judicial referral for cost
recovery (CERCLA)
Requests for information (RCRA 30C7, CERCLA 1C4)
A judicial referral for
Injunctive action and/or
Non-compliance with an AO (RCRA and CERCLA).
No action (RCRA and CERCLA).
The Agency does not encourage the use of a written "no action"
response. To condone a "no action" response requires the ex-
press written approval of the AA for OECM or his/her designee.
.•?-*•
II-5
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11
M
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EXHIBIT I1-2
MEETINGS WITH RESPONSIBLE PARTIES AFTER NOTICE LETTER ISSUANCE
IN PRESUMED CIJ\r?S I AND II CASES
ACTIVITY RESPONSIBILITY
Contact Headquarters to
affirm extent of Head-
quarters and DOJ
participation in meeting
Make final decisions on
extent of Headquarters or
DO.1 involvement or other
significant issues
Conduct meetings with
responsible parties to
obtain voluntary
compliance
Memorialize outcome of
meeting in written
document
Regional Counsel Case Attorney
contacts*
. . OECM Regional Coordinator,
or
. OECM Branch Chief.
Regional Program Cane Specialist
contacts:
OWPE Regional Coordinator, or
. OWPK Branch Chief.
AA for OECM and AA for OSWER
Regional Program Office Staff,
Regional Counsel Case Attorney
Headquarters, DO.7 as indicated
Regional Program Office staff,
Regional Counsel Case Attorney
with copies to:
. OECM
. OWPE
O
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OSWEP. * 9837.0
Exhibit II-2 shows response choice activities, assignments for their
comp~lw&ie>n, and the types of products that are required.
Responses are selected by the Regional Program Office consistent
with existing delegations, and in consultation with the Regional
Counsel (especially for AOs and referrals). The choice of response
should occur before meetings with the responsible party. In the
second step, the Regional Program office develops the response, and
its supporting documents (AO, Warning Letter, in consultation with
the Regional Counsel. The Regional Program Office also ass-^snes
responsibility for initiating the chosen response, immediately on
termination of the meetings.
It should be noted that the issuance of an AO, with an appro-
priate record of decision (ROD) may make a subsequent judicial case
stronger and more easily proven. Thus, an AO is recommended whenever
practicable, as a predecessor to judicial referral.
•Regardless of the choice of enforcement response, the potential
for judicial action exists from the discovery of RCRA violations or
imminent hazards, or CERCLA site identification, until final
resolution of the violation, the hazard, or the site. Until such
resolution, all persons working on such matters should anticipate the
potential for litigation and act accordingly.
3. Fcllov-U? On AOs and Other Administrative Enforcement
After Administrative.Orders are issued, the Regional Program
Office continues to have the primary responsibility for some follow-
up activities. Regional Program Office staff will, as in other parts
of the referral process, consult with Headquarters, and often with
DOJ. This consultation is especially important-lor the resolution of
significant or precedential issues.. Exhibit 21-4 summarizes these
responsibilities, with reference to the specific actions and products
of this phase of case development.
a. RCRA 3008 ORDERS
The Regional Program Office must immediately inform the
Regional Counsel of any responses to RCRA 3008 Complaint AOs.
The program office, with advice from Regional Counsel, may
conduct informal settlement conferences. A written record of
the results of the conference must be produced. A consent order
and agreement is necessary if there is resolution of all issues
by the parties. When a hearing is requested, the Regional
Counsel's office will represent the program office and plan the
lead role in negotiations.
II-7
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EXHIBIT II-3
CHOICE OF ENFORCEMENT RESPONSE
ACTIVITY
RESPONSIBILITY
PRODUCT
TIMING
1. Select response
Regional Program Office
(consistent with existing
delegations). The Region.il
Counsel should be consulted as
required:
Especially important for AOs
and referrals
Record of decision (ROD),
Especially important
for AOn and Fund-
flnanced response
Choice of response before any
action, or at latest, prior
to final meeting.
2. Develop response
3. Initiate response
Regional Program Office.
The Regional Counsel should be
consulted for advice as
required
Regional Program Office
Appropriate administrative
enforcement documents,
consistent with existing
guidance:
. AO
. Warning Letter
Initiate response
immediately on termination
of meetings.
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EXHIBIT I1-4
FOLLOW UP ON ADMINISTRATIVE BNIURCIMKNT
ACTIVITY
RESPONSIBILITY
PRODUCT
TIMING
1. Track responses to complaint AOs
(RCRA 3008)
2. Conduct informal settlement
conferences (RCRA 3008)
Regional Program Office informs
Regional Counsel
Regional Program Office
Immediately, when
hearing is requested
record of
conference results
with advice from Regional
Counsel
3. Hearing pursuant to RCRA 3006
complaint AO
Regional Counsel's Office,
with assistance of Program
Office, plays lead role
If settlement, a
consent order and
agreement
•o
4. Track response to RCRA 3013,
7003, CERCLA 106 AOs.
5. Meeting or conference pursuant
to RCRA 3013, 7003,
CERCLA 106 AOs
Regional Program Office
informs
. Regional Counsel
. OECM-W
. OWPE
Team consisting oft
. Regional Program Office
. Regional Counsel
Class I or II cases
should also include!
. Headquarters legal
representat ive
Headquarters technical
representative
. DOJ if'necessary
Immediately when
response received
50
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EXHIBIT 11-4, continued
FOLIOW UP UN ADMINISTRATIVE ENFORCEMENT
ACTIVITY
RESPONSIBILITY
PRODUCT
Meeting or conference for
nationally sigificant case
(RCRA .1013, 7003, CERLCA
106 AOs)
7. Memorialize outcome of meeting
OR CONFERENCE (RCRA 3013,
7003, CERCLA 106 AOs)
Regional Counsel case attorney
contacts:
OECM Regional Coordinator,
or
Branch Chief
Regional Program case staff
contacts:
. OWPE Regional Coordinator, or
. Branch Chief
Regional Program Office
sends copies to:
. OECM
. OWPE
Written document
TIMING
Should not last
longer than 60 days
8. Follow up, inspections and
determinations of compliance
or non-compliance
9. Choice of enforcement .
response for non-compliance
Regional Program Office
Regional Program Off ice
Written report on
compliance
Choice will lead to
eventual:
Warning letter
. AO
Fund expenditure
. Judicial referral, or
No action.
No later than 30 days
following compliance
date specified in AO
Within 2 weeks of non-
compliance determination
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OSWER # 9837.0
b. RCRA 3013 OR ?003 ORDERS, CERCLA 106 ORDE7.S
The Regional Program Office must immediately inform the
Regional Counsel, OECM-K and OWFE of responses to RCRA 3013,
RCRA 7003 or CERCLA 106 AOs. Meetings or conferences pursuant ~
to AOs require attendance of Regional Program and Regional .Coun-
sel's Offices. With Class 12 eases, attendance by Headquarters
legal and technical representatives, as well as DOJ representa-
tives, may be necessary„ The Regional Case Attorney and techni-
cal staff must contact Headquarters, as detailed in Element six
of the Exhibit, to determine the extent of Headquarters
participation.
If a meeting or conference with an outside party is
required for a nationally significant case, the resulting series
of negotiations should not ordinarily last more than 60 days.
The Regional Program Office is responsible for memorializing the
outcome of such meetings. If there is resolution of all issues
by the parties, a consent AO may result. If there is incomplete
resolution of all issues, the Agency's unilaterial RCRA 3013(c)
order, RCRA 70C3 or CERCLA 106 order will be effective as speci-
fied in the order.
c. All AOs
When there is a compliance order schedule or conditions in
the effective consent or unilaterial order, the Regions perform
follow-up compliance determinations and provide a written report
on noncomplianee no later than 30 days after the specified Com-
pliance date. The choice of an appropriate enforcement response
for noncomplianee with the AO is made by the Regional Program
Office within 2 weeks of the noncomplianee determination.
B. Initiation of Judicial Referral
The case referral process formally begins at the point when:
Either a significant violation (e.g., Class I violation under
RCRA guidance) or an imminent hazard has been discovered, or a
site requiring CERCLA action is identified; and
The administrative enforcement process is deemed to be
inadequate or inappropriate to resolve the dispute; and
The Regional Program Office, in consultation-with the Regional
Counsel, decides to pursue judicial referral.
Case referral, therefore, does not normally begin until administrative
remedies have been completed, abandoned, or determined to be fruitless or
unnecessary.
11-11
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OSWER £ 9837.0
Regardless of when case development and referral begin formally, the
Regional Program Office should consult with, and involve the Regional
Counsel from the earliest stages of the process. This indicates the need
for early designation of the Lead Technical Staff member and Lead Case
Attorney, as described in the beginning of this chapter.
In order to proceed in a timely fashion, the possibility of case re-
ferral should be anticipated at the time negotiations are initiated. In
instances of Fund-financed cleanup, referral of the case to Headquarters
should normally be made within six months after the completion of the
final cleanup activity. The CERCLA §107 Cost Recovery Guidance (August
23, 1983) further clarifies responsibilities for Fund-financed action and
subsequent enforcement.
C. Preparation of a Referral Package
In the third phase of case development, a litigation team is estab- .
lished, and a referral package for EPA Headquarters is assembled. It is
the litigation team's job to prepare the referral package; both the estab-
lishment of the team, and their effort to develop the package are de-
scribed in the following sections.
1. Litigation Team
The composition of the litigation team depends on the classifi-
cation of the case, and its potential for national significance, pre-
cedence, or issue resolution. Exhibit II-5 describes the composition
and function of the litigation team in detail.
The team is convened within six weeks of the decision to pursue
judi- al referral or final cleanup activity. The Regional Counsel
lead; the group, whose composition varies depending on the case
classification. Regional legal and technical personnel are always
involved; Headquarters legal and technical staff are added to the
team for Class I or II cases. Possible members are shown on Exhibit
II-5.
\>thin a month of its first meeting, the litigation team should
develop three crucial documents:
A Case Negotiation Strategy-; and
A Case Litigation Strategy; and
A Draft Referral Package for Headquarters.
In so doing, the remaining legal and technical issues must be re-
solved. Any additional meetings with responsible parties should also
be concluded within 60 days of the first meeting of the litigation
team, so that referral can proceed.
11-12
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EXHIBIT I1-5
LITBOATION TEAM
ACTIVITY
WESPONSiniLITY
PRODUCT
TIMING
Convene first meeting of the
litigation team
Involve appropriate Headquarters
Staff for Class I or II case
u»
Identify and resolve remaining
legal and technical issues
Conduct additional meetings
with potentially responsible
parties
Regional Counsel convenes group
consisting of:
Regional Counsel staff
attorney
. Regional Program Office
technical staff
Headquarters legal and
technical staff as
appropriate, based on case
classification (see below).
Regional Counsel case attorney
contacts:
. OECM Regional Coordinator, or
. Branch Chief
Regional Program case staff
contacts:
. OWPE Regional Coordinator,
or
. Branch Chief
Litigation team
Within six weeks of
decision to pursue
judicial referral or
six weeks of final
cleanup activity
Case Negotiation
Strategy
Case Litigation Strategy
Draft Referral Package
for' Headquarters
Litigation team
Within one month
of first meeting
Should not extend
longer than 60 days
from first meeting
of the litigation
team
it
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OSVER * 9837.0
2. Referral Packaoe for Headquarters
When it has been determined that judicial case referral is ap-
propriate, the litigation team prepares, and transmits to EPA Head-
quarters, a referral package. Chapter III of this handbook, "De-
scription of EPA Hazardous Waste Civil Referral Package" lists in
great detail, the required contents of the package. Among the
important types of documents are the following:
Copies of inspection reports
Work plans
Sampling and analyis reports
Other relevant technical data
Summaries and, generally, copies of cost document action
Records of decisions
Copies of administrative orders
•
Draft complaint (optional)
Case history memoranda, including EPA administrative action
summaries
Recommended case budget.
In addition, the package should clearly identify the Lead Regional
trial Attorney and the Lead Regional Technical Representative. In
most cases, the Regional lead staff will also be the Agency lead
staff responsible for assuring that all necessary case development is
conducted vigorously and in a timely fashion.
JD. Referral to Headquarters
After completion of the referral package, the final phase in pre-
referral case development is executed. In this phase, the Region sends
the referral package to Headquarters, where a final assessment of the
national and program-wide issues that would recommend or discourage re-
ferral to the Department of Justice for litigation is made. This section
describes special referral procedures, and the Headquarters review pro-
cess, in order to effect consistent transmittal and review efforts.
Transmittal of the referral package to OEQt (with copies to OWPE
Headquarters and DOJ) is the Regional Administrator's responsibility.
OWPE will review the package, and within 21 days of receipt will provide
to OECM a written certification of the Regional determination of the
endangerment or that the cost documentation is complete. If OWPE cannot
11-14
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OSWER * 9837.0
certify it, they will notify CEO*. OECK will review the package within
the same 21 days and then determine whether to refer the case to DOJ, to
return the case to the Region for further development, or to request
additional information frcre the Region. In cases where more information
is required, the Regional Administrator provides a modified referral
package within 30 days.
1. Headquarters Review Process
Except for the special eases described below, Headquarters will
follow a standard process for timely review and decision on case
referrals. The review process is not expected to include insistence
on redrafting for simple differences in style, or minor differences
in approach. It may however, include ratification or adjustment to
the proposed contract budget for experts, based on the Headquarters'
perspective of available resources. Exhibit II-6 describes the Head-
quarters review process in terms of roles, activities, products, and
timing. The latter element is particularly important in this
procedure.
When Headquarters determines that the package is in order, OECM
car. make the formal referral to DOJ, sending copies to the AA-OSWER
and the Regional Administrator. The referral package includes a
memorandum to the Assistant Administrator, Office of Enforcement and
Compliance Monitoring, OKPE's determination, where needed, and a
letter for the signature of the Assistant Administrator, OECM, to the
Assistant Attorney General, transmitting the ease for filing. The
letter must be submitted and signed within two weeks of OECK and
OWPE's concurrence. Details are provided on Exhibit XI-6.
2. Referral Decisions in Special Circumstances
Referral decision procedures may occasionally need to reflect
special circumstances such as emergency cases in which ordinary time
limits are too long. This section describes procedures for such
inste* es, and for ease withdrawal or post-referral settlement.
a. Emergency Cases
The standard referral process must be followed in emergency
situations, except that telephoned referral requests should be
used to expedite the process. Written confirmation and neces-
sary documentation must follow any telephoned requests. The
authority to accept and further convey such referrals at Head-
quarters is shared by the following designees.
Associate Enforcement Counsel For Waste
OWPE - Appropriate Division Director
DOJ - Appropriate Assistant Section Chief
.-»•*•
11-15
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EXHIBIT II-6
HEADQUARTERS REVIEW PROCESS
ACTIVITY
RESPONSIBILITY
PRODUCT
TIMING
1. Transmit referral package
to:
. OECM
. OWPE (copy)
. DOJ (copy)
Regional Administrator
2. Review referra^ package
3. Submit determination
to OECM on cases where
required
4. Request additional informa-
tion of Regional
Administrator
OECM and OWPE
OWPE
Associate Enforcement Counsel
- Waste, and/or Director,
OWPE
Written certification for
inclusion in judicial
referral package
Memorandum setting forth
determination that more
information is required
Within six months of
Regional Program Office
decision to pursue
referral, or six months
of final cleanup
activity. Where
additional meetings
with potentially
resonsible parties are
required, transmittal
no later than one month
after final meeting
(but not later than
period for completion
of the referral package
set forth above).
Within 21 days of
receipt
Within 71 days of
roceipt
Within three weeks of
receipt.
S. Comply with information
request, and return modified
referral package to OECM and
OWPE
Regional Administrator
Modified referral package
Within in days
of receipt
VO
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ACtlVttf
RKRPONSlbltltY
!!-•» continued
REVIEW PROCESS
PfeODUCt
ttMlNG
8. tletertdi to bttt
tJKCM
7. -Transmit copied of tetfetrai
letter to 8
Arfmittlstratof
to Ah
ORCM iticludinqs
o i-l>ttiri.rAtlon of
of
tetter Submitted and ahfned
within two Weelte of drttfe of
by
Ity OWI'K
Letter to the ;
Asaifltdnt Attorney QeHetdi
t/at land dnd Natural . .
case tot
»
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OSWER £ 9837.0
t. Access to Sites
Where access to a site is sought through & judicial peti-
tion for entry, or tnrough a warrant, direct referral from the
EPA Regional Office to DOJ is allowed. Telephone referral
requests may be used to expedite the process. Written
confirmation and necessary documentation must follow any .
telephone request. OECM-Waste must oe advised of any such di-
rect referrals.
c. Requests for Case Withdrawal or Filing Delay
Requests to DOJ for withdrawal of a case or for delay in
filing roust originate with the Regional Administrator or the AA
for DECK. The AA for OECK should consult with the Regional
Administrator and the AA for OSWER, if appropriate, before orig-
inating such a request. Such requests will be posed in writ-
ing. The letter will explain the reasons for tne request, and
copies will be ser.t to:
OEC.M or the Regional Administrator
OWPE
DCJ
U.S. Attorney's Office, if appropriate.
If, within two weens of receipt of the copy by OECM, the AA for
OECK does not object to the withdrawal request, it is to be
treated as final. DOJ normally will not file an action while
such a request is pending.
Case referral and its preliminary steps demonstrate the need for close
EPA-DOJ, and Headquarters-Regional coordination. Responsiveness to time con-
straints and information provision requests will also ensure achievement of
referral oojectives.
11-18
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OSWER £ 9837.0
DESCRIPTION OP EPA HAZARDOUS HASTE CIVIL REFERRAL PACKAGE
-------
OSIER £ 9837.0
III. DESCRIPTION" OF EPA HAZARDOUS WASTE CIVIL REFERSAl PACKA3E
Prompt, effective litigation requires attention to the development of the
referral package, the settlement and the litigation strategies. This document
requires a greater investment in these activities than in the past. In this
chapter, the exact contents of an EPA hazardous waste civil referral package
are defined. The package contains three primary parts:
The cover letter
The referral package contents defining the case
The documentary file.
Each of these parts has a number of very specific documents associated with
it, as detailed below.
A. Cover Letter
The cover letter transmits the case referral package frorr, EPA to
DOJ. It is addressee to the Assistant Attorney General for Lar.d and
Natural Resources, and is signed by the EPA AA for OECM. All case
references in the letter must be identical to EPA's computer docket. The
elements of the cover letter are listed in Exhibit III-l. They are
descriptive of the incident; the legal remedies and theories; and
personnel and resources required for completion of the case.
The cover letter provides' a brief synopsis of the request for litigation.
The'following section details the exact contents of the referral package.
B. Referral Package Contents
The referral package demonstrates the need for litigation in a
particular case, and transmits EPA's technical and legal knowledge to
DOJ. One copy of the referral package should be prepared and delivered to
DOJ. A courtesy copy may be furnished to the U.S. Attorney's Office
(USAO) by the Region. The transir.ittal letter to the USAO shall state: "I
understand that current Department of Justice regulations and the United
States Attorney's manual provide that this action may not be commenced
without the express prior approval of the Assistant Attorney General of
the Lane and Natural Resources Division." The remainder of this chapter is
composed of ten lists, each corresponding to a section of the referral
package, and citing the specific elements to be included in that section.
The lists may be used as a checklist for the completeness of the referral
package.
III-l
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OSWER * 9837.0
EXHIBIT III-l
ELEMENTS OF THE CASE REFERRAL COVER LETTER
1. Brief description of the problem necessitating litigation
2. Specific objectives of the litigation
3. Proposed defendants
4. Statutory claims
5. Members of litigation tear
Legal members
Technical members
Lead EPA spokesperson
6. Any need for special urgency-
Confirmed by telephone to Chief or Assistant Chief of ESS,
DGJ (FTS 623-5271)
7. Any important or precedential legal issues
8. The resource comir.itment of the Agency
Full time equivalents (FTE) (litigation tear.)
PTE (witnesses)
Contract dollars.
IXI-2
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OSWER £ 9837.0
Section 1. Factual Description of the Probler and Government Response
This descriptive section outlines the events at the site, and
recounts the procedural activities of governmental response.
Documents to be included are:
.a. Site, history and description of:
Location and ownerrh:'- of site
Results of title search
Sufficient information to establish venue
Location map if possible
Historical activities at site
Environmental and health concerns
Pollutants, their toxicity, exposure pathways
- Data analyses such as site map with plotted data
Proximity tc water supplies, population centers,
natural resources, etc.
b. Procedural history and description of:
. All Superfund (Headquarters and Region) activities at
site ' '
Documents contemplated by NCP (see Appendix II-l,
Exhibit 1}.
State and local activities.
Administrative Orders if appropriate (include copies).
•
Contracts or negotiations with private parties
(include copies of all correspondence with defendants
or their counsel).
Notice letters (include sample copies), demand letters
(include sample copies), information requests
including any problematical 5104(e) responses.
Historical and anticipated coordination with state and
local governments (include names, addresses and phone
numbers of attorneys and key technical staff).
Copies of any specifically required statutory
determinations, e.g., imminent and substantial
endangerment for $106.
•••*• .
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OSKER * 9837.0
Section 2. Objectives of Litigation
This section requires a description of the relief and monetary
penalties sought in the litigation, including:
A particularized statement of the relief sought — should
include draft (perhaps outline) of final order sought by
Agency.
If penalties are sought, a calculation of penalties owing.
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OSWER t 9637.0
Section 3. Legal theory of ease
The third section highlights the statutory provisions or. which
.the case will be built.
Statutes upon which the Agency wants to proceed. (Note
case support, whether established or novel theory.)
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-OSK'R # 9837.0
Section 4. Legal History of Case
All prior legal documents are identified and attached in this
section of the referral package.
Copies of all filed, legal pleadings relevant to case, such
as:
Bankruptcy papers
Prior acti:
Related state cases
Warrants.
- Dates and parties to whoir notice and/or demand letters have
been sent.
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OSWER ? 9837.0
Section 5. Elements cf the Case
The prima facie elements of the case must be accurately
described in this section, of the referral package. They refer to any
of the statutory citations upon which the case is based, and are
summarized in the following 6 appendices to this manual:
Appendix One: 107 CERCL*. (Has/Facility)
Appendix Two: 10 i ."I...-A
Appendix Three: 7003 RCRA
Appendix Pour: 303 CAA
Appendix Five: 50< CKA
Appendix Six: SDKA
The prime facie elements for cases related to CERCLA Access (Sample),
CERCLA Access (Response), 106 AO CERCLA, Bankruptcy Claims, CERCLA
misc., RCRA 3006 original, RCRA 3006 AO will be developed at a future
date. For each cf the elements, the proposed evidence and method of
proof must be identified. The following categories (or others) may
be used:
Stipulation or admission
Documentary
Fact witness
Expert wi tness .
The Elements section may also need to be responsive to one or more of
the following instances, each with special information needs.
a. Consistency with fetional Contingency Plan (NCP)
If NCP consistency may be an issue, include all records of
decision and other documentation required as precondition to
action, such as record of decision under §106 (a).
b. Cost Recovery
For a case under CERCLA $107 for cost recovery, a statement
of account must be prepared, with a description of documentary
backup. Original documents must also be available.
c. witnesses
If witnesses are identified in this part, the following
information must be indicated:
II1-
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9837.0
Present place of employment
Home and business phone
. Substance of testimony
Whether statement is on file.
For expert witnesses, the following are required in addition:
Field of expertise (include C.V. and reports)
Whether inci\idual is under EPA contract
For ht• ong?
Under wr.at financial arrangements?
Other cases where retained in past or present.
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OSWER * 9837.0
Section 6. Recommended Defendants
This section of the referral package describes the complete
information required in identifying proposed defendants for each
case. It should include:
The name of each proposed defendant
Address and agenz zor service
General description of assets, if known
A description cf earr. defendant's contact vith the site/
including:
Volume and type of waste for each defendant, if
relevant
The legal theory of liability
A description of the relief sought frorr, each defendant
A list of other possible defendants and reasons considered
and rejected.
A copy of each of the following applicable documents for
each defendant:
Information letter
Notice letter
Demand letter
§104(e) letter and characterization of response.
A complete defendant section contains the applicable documents
described above.
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OSKER f 983">.C
Section 7. Identification of Potential Problems
It is important that the referral package identify and begin to
respond to potential problems that might be met during litigation.
Therefore, an analysis of problems should include the following
elements:
Anticipated deferses, including a summary of defendant's
contentions and factual underpinnings
Any internal criticism of cost figures, including IG audit
All problems with consistency with National Contingency
Plan.
Identification of any needs for special urgency:
Statute of limitations
Environmental threats
Whether preliminary injunction should be sought
Identification of witnesses having or claiming to have
information harmful to EPA's case
Notation of any governmental involvement at site.
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OSWEJ, £ 9837.0
8. Description of the Documentary File
A file of all documents in the possession of EPA that will
support the case should be consolidated before referral. The
Department of Justice will not and is not expected to file a civil
action for cost recovery until complete, original documentation is in
the possession of the litigation team. (Original documents should be
in the file.) In addition, the locatio:. of the file, its caretaker,
and size should be clearly defi.-.c- in the referral package.
A docket sheet summarizing the contents of the file should be
enclosed with the referral. The docket sheet assigns a unique number
to each document as the file is compiled, identifying the document
and its length. All docket sheets should be designed for public
disclosure.
The documentary file should be completely consolidated and
include: ,
Records of adr.inistrative decisions, evaluations, and
recommendations
Cost accounting - broken out by spending offices
Technical files
Assessment of site
Assessment of threat
Assessment of remedy . •
Correspondence
Pleadings
Defendant files
Other evidentiary documents
Minutes of negotiations
Documents required by appropriate Appendices to this section
Two parallel files may be maintained. The first is a public,
discoverable file, from which Freedom of Information Act (FOIA)
requests may be answered. The second is a privileged file,
containing attorney/client privileged information, work products, and
other sensitive documents. The nature of privilege should be noted
on the docket sheet.
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OFWE-R * 9837.n
Section 9. Settlement
The referral package should indicate with specificity the nature
of any previous settlement discussion and include proposals made by
any party. The package should also recommend a bottom line
settlement position and, if desired, suggest a negotiation strategy.
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' OSKER £ 9837.0
Section 10. Agency Resource COTjr.it.?ent
In the final portion of the referral package the Region shall
describe EPA's resource commitment to the case. The success of
judicial enforcement often depends on the amount of technical and
legal resources that can be applied to the case. These resource
conrcitments should be taken seriously, but can be adjusted by-
agreement cf all offices, as circumstances warrant. The Region'
should ensure that time or resourc-:. :-_.-.er than those of the Regional
Office, are available. In addition, the resource estimates should
attempt to predict the resources needed through trial of the case.
An estimate of the probability of a particular case going to trial
should also be made.
The following specific resource commitment information is
required:
Mer.bers cf litigation tear and estimated F7E
Estimated F7E for Agency witnesses (or other governmental
witnesses whc may testify). Sufficient time need be
included for:
Preparation of testimony
Consultation with litigation team
Deposition • . •
- . Trial testimony.
Contract dollars and current contract status for expert
witnesses. This estimate should reflect:
Entire contract dollars needed for all outside
testimony
Time for preparation of testimony
Consultation with litigation tear.
Deposition
Trial testimony
Travel
Estimated costs of other litigation support such as
computerized support, travel, exhibits, etc.
When the resource commitment estimates are complete, the referral
package may be transmitted to DOJ.
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OSV:EK ?
ZV. CASE KANAG&EXT ATTSt
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OPKER * 9837.0
IV. CASE MANAGEMENT AFTER REFEF.RA.l
Once the case has been referred to DOJ, a number of important
responsibilities fall to both Agency and Department staff. This chapter
outlines these case management actions, and the roles of all team members.
The subsections of this chapter are organized by the type of activity
(substantive motions, discovery, response to discovery, etc. undertaken during
this phase.)
A. General Principles; The Case Litigation Tearr
As in other phases of the referral process, the general principles
guiding post referral steps specify distinct roles for all members of the
litigation team. The litigation teair. is composed of the following members:
Department of Justice attorney(s)
Including Assistant United States Attorney(s)
EPA attorney(s)
EFA technical representatives.
Key to the success of the team is early and consistent identification of
objectives supported by a .strategy for achieving those objectives. The
team should operate.recognizing that success in litigation often depends
on the best.marshalling of evidence, including but not limited to
compelling experts, more complete data and evidence, and by better and
harder work throughout the process.
The litigation of a hazardous waste case by the government is truly a
team effort. Each member of the teair. must carry her/his part of the load,
and careful coordination among the team is crucial. While the structure
and responsibilities of the team may change from one case to the next
depending on the nature of the case and the interests and strengths of the
team members, coordination and consultation among the team is imperative.
Usually, the litigation team will have three central figures: The Lead
Trial Attorney, the Lead Agency Attorney, and the Lead Technical
Representative. Arrangements must be established and maintained which
assure that each central member of the team is kept abreast of and is
consulted about all significant activities and decisions occurring in the
case. Generally speaking, each central member is jointly and severally
liable for assuring coordination and consultation with the other two
central members.
Exhibit iv-l lists the activities and reponsibilities that support
the accomplishments described above, noting specified roles for the
different agencies and team members. Managers at all levels are expected
to instill a cooperative spirit in their staff members, recognizing the
iv-l
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EXHIBIT IV-1
GENERAL STEPS OP CASE MANAGEMENT
ACTIVITY
RESPONSIBILITY
1. Determine Lead
Trial Attorney
2. Establish case strategy
DO.I
DOJ, In consultation with Agency
personnel on case
\
K)
3. Resolve litigation decisions:
. Case strategy
. Case management
. Resource needs
. Expert needs.
4. Determine Technical Issues
* and Settlement Position
5. Resolve other issues
jj . Identify relief sought
. Provide internal coordination
. Identify policy concerns
6. Convene a, conference of the
litigation team to develop case
strategy and make assignments
and establish deadlines
for case development
• 7. Prepare and distribute
memorandum describing the
discussions and resulting
assignments
DO.I
Resource coirnnit-wont disputes
handled by manaqement
EPA, in consultation with DOJ
EPA
Load Trial Attorney
Lead Trial Attorney,
or designer
o
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F.XIIiniT JV-1 Continued
GENERAL. STBPS OF CASE MANAGEMENT
ACTIVITY
RESPONSIBILITY
I
LJ
8. Resolve differences of
opinion for routine car«
strategy
9. Resolve substantial
policy questions
10. Appoint staff person to act
as case manager for:
. Technical Issues
. Policy Issues
. Witness support
. Legal coordination
11. Develop contracting and
jj administrative procedures
to obtain:
. Expert witnesses
. Other technical support
12. Identify expert witness needs
within case budget
13. Design comprehensive plan
" for discovery
14. Adopt ad hoc procedures
to ensure complete coordi-
nation among offices. Lead
Trial Attorney may deal
directly with all team
members
Trial Attorney
Managers - Appropriate
docislonmakors in
supervisory c.li.iln
EPA
EPA
I*»ad Trial Attorney,
in close consultation with
staff technical person
Lead Trial Attorney
I.pad Trl.il Attorney with
litigation tonm
VD
05
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OSV7EP # 9837.0
variable roles of case personnel. The Lead Trial Attorney is determined
by DOJ as soon as reasonably possible, but not later thar. 60 days after
referral. Responsibilities of the Lead Trial Attorney are described in
Chapter II of this document.
One of the most important steps in this phase is the development of
the case strategy. The process :'r initiated by the Lead Trial Attorney,
in conference with all case pers.r.riel. The conference should be held as
soon as possible after referral, and not more than 30 days after
designation of the Lead Trial Attorney. The conferees must, at this time,
resolve a nunber of issues. Among the issues that should be discussed and
resolved, insofar as possible, at the case strategy conference are:
Whether the case is appropriate for government application for a
preliminary injunction or other form of extraordinary relief;
All legal issues expected to be raised in the case proceedings;
Evidence that will be necessary to sustain the government's case;
Witnesses who will or ir.ay be necessary to introduce evidence on
behalf of the government;
Further litigation tear, member assignments.
A post conference memorandum developed within five days of the conference
conclusion memorializes resolution of these issues, and the assignments
that may result from this effort. Resolution of other issues (relief
sought, internal coordination, policy identification) is EPA's
responsibility.
The Lead Trial Attorney has the authority to resolve routine case
strategy differences: however, substantial policy questions must be
brought to management for resolution. The Lead Trial Attorney, in close
consultation with the team's technical' staff, identifies expert witness
needs within the specified case budget. Moreover, he or she designs the
comprehensive discovery plan.
EPA's role in case management requires the appointment of technical
staff (usually two or three technical staff members for each attorney) to
manage technical and policy issues, witness support, and legal
coordination. EPA also must develop contracting and administrative
procedures for expert witness and other technical support as needed.
The litigation team may then adopt ad hoc procedures to ensure
complete coordination between EPA and DOJ. The Lead Trial Attorney nay
deal directly with all team members.
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OSWER $ 9837.0
6. Document Organization
Chapter III of this document described in detail, the required
documentation for effective case development. Herein, the importance of
such documents is reiterated, since document organization is so vital to
case management procedures.
EPA is responsible for maintaining a consolidated file of all
documents. Evidentiary documents ordinalixy should be original
documents. A docket sheet summarizing the contents of the document file
will also be developed by EPA and provided to DOJ.
C. Analysis of Referral
After reviewing the referral package, DOJ should promptly arrange an
initial meeting of the litigation team. At this time, the team can
identify further information that may be required for case filing or
subsequent to filing. EPA will promptly respond to these information
requests.
D. Requests tc Withdraw Referral or Delay Filing
In some circumstances, EPA may wish to withdraw its referral, or
delay filing. The requirements for doing so are detailed in Chapter II,
Part (D)(2)(c)
E. Pleadings, Dispositive Motions, and Other Substantive Motions
The preparation of pleadings, motions, and briefs is the primary
responsibility of DOJ, although EPA views will be sought on any
significant pleadings. A fuTther description of the events and
responsibilities of this phase of litigation is provided in Exhibit .IV-2.
DOJ will ordinarily have responsibility for nearly all of the motion
drafting activities, with EPA playing a review and technical support role
during this process. If demand letters have not been sent, DOJ will do so
for cost recovery complaints. The Lead Trial Attorney will assign
responsibility for preparation of morion responses, as shown in the
Exhibit, and will respond to minor motions and minor discovery motions.
F. Preparation of the Government-Initiated Discovery
Government-initiated discovery activities are the result of
development and implementation of a comprehensive discovery plan. As
described in Chapter III, this plan is the responsibility of the Lead
Trial Attorney, as is assignment of discovery responsibilities. Since
discovery matters generally do not invoke policy, extensive coordination
is not usually required. However, EPA technical and legal personnel
should be consulted. If Agency input is not received in a timely manner,
the Lead Trial Attorney will serve the discovery. The Lead Trial Attorney
will also provide copies of discovery answers to Agency legal
representatives.
IV-5
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ACTIVITY
EXHIBIT IV-2
PREPARATION OF PLEADINGS AND MOTIONS
RESPONSIBILITY
1. Prepare pleadings, motions,
and briefs
2. Prepare complaint
3. Review complaint
4. Send demand letters,
when they have not been
sent in a cost recovery
complaint
%. Assign responsibility for
preparation oft
. Responses to motions to dismiss
. Responses to motions for
summary judgment
. Responses to other motions
6. Respond to minor motions
(e.g. for extension of time)
. and to minor discovery motions
DO.I
Consultation with EPA will be
sought for major products
DOJ, with necessary technical
allegations provided l>y EPA
technical representative
EPA technical an<1 legal
reprfsentatiVPS
DO.J
Lead Trial Attorney
Lead Trial Attorney
^o
*»=
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uswEP. $ 9837.0
When discovery includes depositions, each deposition will ordinarily
be taken by one attorney. The Lead Trial Attorney will decide which
attorney will take the deposition and whether experts should be provided
to assist in the deposition.
G. Response to Defendant Discovery
The Agency normally is responsible for preparing craft responses to
discovery initiated by defendant (s). . •• _?A legal representative
generally will coordinate obtaining and preparing complete answers -for the
entire Agency and subirit their, to the Lead Trial Attorney with ample time
for his or her review.
H. Requests for Additional Support During Litigation
During the course of the litigation, any member of the litigation
team may spot possible weaknesses in the government's case that might be
remedied fcy further case development. These will be communicated to the
Lead Trial Attorney, who, after consultation, will assign responsibility
for the additional work.
In cases where new OKPE or OECM resources requirements significantly
exceed those contemplated in the referral package, OKPE/OECK concurrence
will be required.
I. Outside Contacts
For every case, there are identifiable groups which can be seen to be
outsiders. These outsiders include opposing parties, their counsel, and
their contractors and witnesses. Outsiders also include more neutral
persons such as the press, intervenors, the legislative and judicial
branches of the Federal Government, and, in some instances, state and
local governments. All inquiries from outsiders pertaining to the case
should be forwarded to the Lead Trial Attorney and all contacts or
d'iscussions with outsiders must go through the Lead Trial Attorney or
his/her designee.
J. Negotiations and Settlement
Negotiations and settlement are part cf litigation, and should be
handled as such. Therefore, the progress of litigation should not be
impeded by settlement negotiation efforts.
The Lead Trial Attorney should participate in all negotiations and
she/he should be the recipient of all inquiries from the opposing side.
In all significant negotiations, the Lead Trial Attorney will normally be
the government spokesperson, and the Lead Agency Attorney and Lead
Technical Representative (if technical issues are to be discussed) should
be present. It is the responsibility of each member of this litigation
team to keep his/her management advised of all significant developments in
IV-7
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OSIER f 9837.0
settlement negotiations and to communicate any feedback received froir.
her/his management to the litigation team. All settlements must be
approved by DECK and DOJ. Before DECK will approve a settlement, it must
be approved by the Regional Administrator and OSWER.
K. Updates on Evidence
EPA will periodically update addresses of witnesses, field and lab
contractor personnel, and other evidence during the course of the
litigation.
L. Pretrial Order
Preparation of the pretrial order in accordance with local rules and
practices is extremely resource intensive. All members of the litigation
team should devote extra efforts during this period.
K. Trial
The culmination of the case development process, should settlement
not be reached, is the trial. The Lead Trial Attorney determines the
trial strategy. He or she is supported at trial, by Agency personnel and
contractors as needed. Adherence tc the rules of evidence may make trials
resource-intensive and may require many witnesses. Often the exact dates
of testimony will not be known, so availability and flexibility are
critical.
In this chapter, the progression of activities from case team development
through trial has been detailed. Observation of these procedures is key to
interagency coordination and the success of subsequent efforts.
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OSWER £ 9837.0
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OSWER £ 9837.0
V. TECHNICAL SUPPORT FOR LITIGATION
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OSKER £ 9837.0
V. TECHNICAL SUPPORT FOR LITIGATION
Case development ana support activities rely a crest ceil en expert
technical assistance. The litigation tear, determines the need for expert
input at each phase of case development. In some instances, it ,may be
difficult to ascertain when experts need to be involved, especially if case
progression toward actual litigation is uncertain. This chapter adcresses
technical support only in the litigation components of case development. It
assumes that certain early technical assessments are complete. Tnese include:
Preliminary responsible party determination (for detailed
description, see National Enforcement Investigations Center (NEIC),
Procedures for Identifying Responsible Parties: Uncontrolled
Hazardous Waste Sites - Superfund, February 19E2.)
Site inspection
Site ownership (including title search)
Articles of incorporation
Si04(e) CtnCLA information request letter or equivalent
Site records
Financial assessment oi responsible parties
Preliminary site assessment (i.e. nature of endangermer.t; for
detailed description, see National Contingency Flan £300.64;.
Continuing technical support is required, in the later litigation-phases.
This chapter contains four sections, of which three describe continued
technical support, and the fourth describes case budgets:
Endangerment Assessment
Feasibility Study for Enforcement
Expert Witnesses
. Case Budget
•
These sections, and their implications for technical assistance needs apply
only to enforcement-lead sites. In cost recovery (Fund-lead) efforts, the two
assessments will have Deer, completed as part of the remedial
investigation/feasibility study for the site response action and normally will
be available when a $107 case is initiated.
A. Endanqerment Assessment
1. Purpose
An endangerment assessment serves two purposes in appropriate
injunctive actions. First, it provides the basis for the 'imminent
and substantial endangerment" count of the Complaint. Second, in
actions under Section 106 of CERCLA, it fulfills the requirement of
the National Contingency Plan.
- ••-*• .
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2. Scope OSWER £ 9837.1
An endangerment assessment evaluates the actual or potential
health and welfare hazards to populations or the environment exposed
to contaminants from a hazardous waste site. The assessment itself
oust include the following information:
Qualitative and quantitative data describing predicted or
actual hazards, exposures and risks
Supportable conclusions regarding the potential for
endangeraent to the public health, welfare or the
environment.
Adequate documentation of all facts anc suppositions cited
must be provided.
An endangerment assessment is a pert of the remedial
investigation/feasibility study (RI/FS). When ar. RI/FS is not done
(e.g., at a non-NPL site), it is a separate determination. Ar.
endangerment assessment must also be included in a $106, 3013, or
7003 administrative order. If an RI/FS was done, the order should
surjr.arize the endangerment assessment that was done in the RI/FS. If
the order calls for an RI/FS to be done, such as on consent, the
order must contain a preliminary endangerment assessment. The final
endangerment assessment that is done by the respondent in the RI/FS
should then include this preliminary endangerment assessment and
expand upon it. The assessment takes existing data and evaluates its
significance, using, for example, partial or inconclusive data tc
make educated and reasonable predictions. It then uses exposure and
risk evaluations to define the extent of endangerment. The
endangerment assessment ties together the important information fror.
the remedial investigation, a toxicological evaluation, an exposure
assessment and a risk assessment to define the magnitude of the
hazard at a site. The approaches to the exposure and risk
assessments nay be qualitative or quantitative depending on the needs
of the litigation team.
3. Conducting an Endangerment Assessment
An endangerment assessment takes data from the remedial
investigation and the feasibility study. In general, it consists of
two partSo The first is a site evaluation taken from the remedial
investigation. This evaluation determines the nature and the extent.
of the contamination from the site. The evaluation predicts the
extent of future contamination should the pollution continue
unabated. The second part assesses, as quantitatively as possible,
human and environmental exposure, and their likely consequences.
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03WLR # 9837.0
Remedial Invest!getions/Feasibility Studies are done et all
National Priorities Ld - - sites before remedial actions are taker..
After a site is designated as a Federal enforcement lead site, an
RI/FS will be conducted by the Office of finergency and Remedial
Response (OERR) according to a schedule mutually acceptable to OWPE
and OERR. The RI/FS will be conducted at Federal enforcement lead
sites and can take froir. 3 to 18 months depending upon the
complexities of the site.
OKPE will review the scope of work of the RI/FS to determine if
it is comprehensive .enough to provide information on endangerment.
Exhibit xv-1 outlines the contents of an endangerment assessment that
will be needed in the review. OKPE staff or consultants with the
appropriate expertise (TES contract) will conduct these reviews.
OWPE and OERR are currently working together to publish a joint
policy on endangerment assessment as pert of the remedial
investigation and feasibility study guidances. This guidance will
discuss the statutory basis for wt-.y an endangerment assessment is
done, when one is done, what an endangerment assessment is, how it is
put together, and who does their.. The guidance is expected out at the
end of July 1964.
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* 9837.0
EXHIBIT V-l
ENDANGERKEN7 ASSESSMENT OUTLINE
I SITE CHARACTERIZATION
A. Physical description of the site
B. Geographical location
C. Demographic surroundings
D. Type of facility (landfill, incinerator, impoundment)
E. Management practices
II CONTAMINANTS POUND AT TEE SITE
A. Identity/type
B. Quantity
C. For ir.
C. Manner of disposal
E. Concentration in environmental media
F. Ancient levels
i:. FACTO?^ AFFECTING.MIORATION
. A. Topography
B. Soil parameters
C. Geological parameters
D. Hydrological characteristics
E. Climate
IV. ENVIRONMENTAL FATE OF CONTAMINANTS
A. Physical and chen.icsl degradation characteristics
E. Movement between environmental media
C. Hydrogeological/geocheir.icel characteristics
D. Evidence of emigration
V. RISK EVALUATION
A. Risk assessment
1. Hazard identification
2. Dose-response assessment
3. Exposure assessment
4. Risk characterization
B. Risk management
1. Process of evaluating and selecting options
2. Risk assessment as one basis
-•••*•
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9837.0
VI. IMPACT EVALUATION
A. Health assessment
1. Multi-disciplinary review
2. Evidence of effects on target population
B. Human health studies
1. Long terir. epideiriolosical studies
2. Clinical studies
C. Health advisory
1. Short and lone terir. risks
2. Medical panel consensus
3. Description of precautionary measures
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OSWER # 9837.0
B. Feasibility Study Fcr Er.foreeiT'er.t
1. Purpose
Similar to the endangerment assessment, a feasibility study (FS)
for enforcement serves two purposes. The feasibility study for •
enforcement determines the relief that should be sought fror. the
defendants at trial. Past experience shows that courts axe not
inclined to order responsible parties to do mitigative assessment
studies, but want the plaintiff to delineate the remedy. The second
purpose of the assessment is to fulfill the requirement of the
National Contingency Plan that an enforcement sought remedy considers
the same factors as Fund financed remedy (See KCP $300.66 (c)).
2. Scope
A feasibility study is conducted prior to any Fund-financed
remedial action. It considers the range of remedial options and
recommends the one thet is:
"the lowest cost alternative that is
technologically feasible and mitigates and
minimizes damage to and provides adequate
protection of putlic health, welfare, or the
environment." (NCF $300.66 (j)}
Feasibility studies will be initiated at several federal enforcement
lead sites. If the feasibility study is done in conjunction with the
remedial investigation it will be done, by the Remedial/Field
Investigation Team (REX/FIT) contractor. If not, either the REX/FIT
I or II contract or the CVPE Technical Enforcement Support (TS£)
contract will do the FS, and'it will be called an alternatives
assessment.
A feasibility study for enforcement can differ from a program
initiated feasibility study in some ways that reflect special needs
of the enforcement program. These are described below.
a. Temporal Aspects of Investigation
The feasibility study may not initially .include all
aspects of the site, since 0ERR may take an incremental
approach. For example, the immediate problem of drinking
water contamination nay be addressed first. At some later
time, OERR might examine the residual pollution in a
receiving water body, if the later threat does not present
an immediate danger to humans. The scope of the
enforcement action, however, should be as comprehensive as
possible to avoid having to amend the Complaint or risk
bringing new counts after the case has been resolved.
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OSWER # 9837.0
b. Fund Balancing
Enforcement sought remedies do not have to consider
the Fund balancing provisions of the NCP (5 300.66 (k)), as
do Fund-financed activities.
c. NCP Interpretation
Enforcement considerations may lead to different
interpretations of the NCP. For instance, two alternatives
may remedy a problem; one has primarily initial capital
costs and the other primarily future annual costs.
Although an evaluation of present worth may show that the '
second alternative is cheaper, enforcement needs may
.require the more expensive capital costs if the responsible
party is unlikely to continue to pay the annual expenses.
Therefore, the scope of a feasibility study for enforcement
could be broader or narrower than that of a prograir. initiated
feasibility study, depending upon the nature of the particular
site. The Regional technical enforcement personnel will review
the scope of each enforcement feasibility study or alternatives
assessment to ensure that enforcement considerations are
included. C*f?E is currently drafting guidance on this topic,
which will be included in the OERP. RJ/FS guidance. As
envisioned, the OERR RI/FS Guidance will accept the basic
methodology of Fund-financed feasibility studies and incorporate
the enforcement factors discussed above.
C. Expert Witnesses
Expert witnesses can be one of the crucial factors in success of a case.
As an integral part of the case development plan, identification and strategy
for use of experts is required prior to case referral. This section describes
the types of expert witnesses that may be required, witness selection, and
procurement procedures.
1. Fields of Specialization.
The complexity of hazardous waste cases introduces a demand for
a broad spectruir. of expertise. The following list describes some
(but not all) of the fields of specialization to be considered:
. Human Health
Toxicology
Epidemiology
Medical opinion
Public health
Biostatistics
V-7
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OSVER # 9837.0
Environmental Effe:ts
Aquatic and ir.ar-.aliar. toxicology
Ecology
Entomology
Botany and plant pathology
Environmental fate
Physical Sciences
Geology
Hydrology
Sail Science
Geological engineering
- Environmental engineering
Chemical engineering
= Analytical chemistry.
The specific facts of the case should dictate the nature of expertise
required.
2. Witness Selertior.
Historically, experts have beer, selectee in two ways. In on*,
the litigatior. tearr agrees to hire a specific person in a field of
expertise. In the second, an appropriate expert is unknown to the
tearr. and, therefore, a search for the best candidates is conducted.
OW?I is now developing a computerized data base of experts which can
be accessed by the litigation tear through a request to
Headquarters. Expert searches car. also be conducted by the National
Enforcement Investigations Center (KEIC) but these requests should
still w-e made through Headquarters. Once a number of highly
qualified experts in a given field have been identified, the
litigation team then interviews the nominees and selects the case
expert. In some instances the search for experts in a field is done
for a specific case. In others the demand for expertise of a certain
kind is great enough to demand a general search, with the nominees
prese-tc-d to any litigation team requesting that expertise. The
lattt. R€thod is also used when an exhaustive search on a particular
ease turns up several highly qualified experts and subsequent cases
ean benefit from this earlier search.
3» Procurement of Witnesses
In the past, a variety of mechanisms have been used to hire
experts. EPA or other federal or state government employees have
been used as experts. In addition, experts have been procured
through contracts such as the REM/FIT contract, Office of Research
and Development (ORD) contracts, a water enforcement contract, and
DCJ contract mechanisms.
v-e
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OSWEK # 9837.0
Consideration should be given to use of government (particularly
EPA) employees as witnesses, for a number of reasons. First, there
can be a considerable cost savings. EPA and the federal government
employ many experts of national and international renown. In
addition, the government can help the prosecution of future difficult
cases if it now trains capable experts in the area of court
testimony. The U.S. Geological Survey (CSGS), Ariry Corps of
Engineers (ODE), and U.S. Fish and Wildlife Service (FKS) are
examples of other federal agencies that can provide expert opinions.
tften outside consultants are required, procurement can be
accomplished through the TES contract. The use of TES is prohibited
when a firm other than the one awarded the contrtct, is needed. In
this case a sole source procurement, a buy-in to an existing contract
or a subcontract through REX/TIT should be usec. Advanced planning
is needed when a sole source procurement is necessary, since the
process can take several months. In the situation where a named
expert is needed immediately, that person can be hired within a few
days under TES. If the expert must be hired mere quickly, this ir.icht
be done by the Department of Justice. However, due to the shortage
of funds, the expert should be hired by TES as soon as possible.
CWPE and OECK-K are working with the EPA Contracts Office to quicker.
the pro'curerer.t of experts. Ob'FE is currently preparing & guidance
document on the selection and use of experts.
D. Case Budgets for Imminent Hazard Cases (CERCLA; RCRA 3013 and 70C3)
The availability of resources to support the Agency's enforcement efforts
is a continuing concern. In nearly every enforcement action taken on
hazardous waste sites it was desirable to add more government personnel to the
.case effort. Lacking this, contractor support has been relied upon. To date
these extramural resources have been given mainly on a first come, first
served basis and in a few instances or. a planned basis. Fortunately, the
overall support needs so far have been met within the extramural resources
budgeted. This has been helped by a bias on the part of the technical offices
advocating the use of in-house experts where possible.
However, as the number of active cases increases, it is inevitable that
the availability of resources will become a real issue and that trade-offs
will have to be considered. Rather than facing this issue sometime during the
fiscal year and being confronted with a crisis decision, it would be desirable
to plan for the enforcement required resources as early as possible, thereby
allowing the trade-offs to be decided before there is conflict. DOJ and EPA
officials can then decide how many new cases can be supported, how many and
what cases should be expedited and which should proceed on a slower track.
This will be accomplished by the case budget system^
V-9
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OSWER * 9837.0
Although the case budget process is still under development, the following
are the principles upon which it will be built. It is based on the prejr.ise
that OWPE is the principal source of extramural funds to support enforcement
efforts. OWPE has a mix of contractors and interagency agreements that can be
used. Based on projected workloads, the Regions will be assignee an amount of
credit upon which they can draw fror. any of the OWPE contracts or ir.teragency
agreements.
&iforcement costs can be divided into three categories: overhead,
prelitigation expenses and post referral expenses. For the first category,
OVPE would first subtract fror. its budget those costs necessary to support the
enforcement prograrr. as a whole, such as contractor support to perform policy
analysis.
Prelitigation expenses include those items that are necessary to conduct
site classification, such as responsible party searches, and other activities
that are necessary to develop a number of potential enforcement cases, such as
negotiation support and records compilation. These prelitigation expenses are '
planned for in the Superfund Comprehensive Accomplishments Plan (SCAP; and e
budget for each Region can be established by multiplying the totals for each
category by a cost factor, which is an average of each category's costs to
date. The Regional Program Offices would then manage their SCAP targets
against trie resources allocated. Tr.t Regions wculc have the flexibility tc.
shift resources from a site task that costs less than the average to another
that costs more. OK PI will manage a contingency fund consisting either of the
funds that have not been allocated to overhead, prelitigation or post referral
costs, or, if the demand exceeds the budget, a percentage of the budget, e.c.
5 to 10 percent. The contingency fund can be accessed in the event that, for
good cause, the actual total prelitigation expenses for a Region exceed the
budget. OK PC will establish an appeals system before implementation of the
case budget system in fiscal year 1985.
The post referral expenses include additional technical studies beyond the
RI/FS, technical review of documents, expert witnesses, interrogatory
responses, evidence audits, compliance monitoring and costs related to
recovery actions. In addition, there are existing cases, future cases, and
Class I, II and III cases (see chapter II). In brief, the Regions will
prepare cost estimates for each existing case and each new case on the next
year's SCAP. For Class III cases which will cost less than the average case,
approximately 3300,000, a budget will be established for and administered by
each Region as for prelitigation expenses. For Class I and II cases OWPE will
participate in the formulation and/or review of the individual case budgets.
Where Class III cases are expected to exceed the average case cost, OWPE will
be involved to an extent proportional to the amount that the case exceeds the
average. As for prelitigation expenses a contingency .fund will be established.
OECM and DOJ will review the overall case budget at the time it is
formulated prior to the start of each fiscal year. Any budget disputes
between DOJ and the Region which cannot be quickly resolved by the Region
should be brought to OWPE. The case budget system will be initiated in the FY
1985 SCAP guidance to the Regions, which asks the Region to assess FY 1985 '
extramural needs.
V-10
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SUMMARY OSWER * 9837.0
Evolving case support needs rcust be handled quickly and judiciously. In
some instances, competing resource demands, and a growing case load in general
require conscientious use and administration of support activities. This
chapter has pointed out ways in which support can be achieved for maxiirur.
effectiveness.
-•:•-*•
V-ll
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OSWER £ 9837.0
VI. POST-JUDGMENT FOLLOW-UP
-------
VI p^9~.-r^a,^- rcT-ou--".? OPWER * 9837.0
* * • Xw- » » ^ ^ •» JTa^-. * » * w ^_ ^*-Fn *, .
The final phase of case management requires careful atter.tio-. tc post-
judgment follow-up. These follow-up actions ensure that the fruits of case
development labor are instituted in a timely fashion, and accor.plish the.
necessary environmental goals. The types of action requiring follow-up,
personnel responsibilities, and the constraints to post-judgment follow-up are
detailed in this chapter.
A. Action Requiring Tracking or Follow-up
Two categories of activities should result.in a conscientious
tracking effort: judicial consent decrees and court judgments. Follow up
for administrative decrees is discussed in the RCRA and CERCLA
Administrative Order Guidance.
The obligations for consent decree and court judgment follow-ups are
identical. They should ensure:
Submission, review and approval cf plans, or scopes of work for
investigations or feasibility studies
"Submission, review and approval of plans and specifications for
technical components of remedial activities
Payment of fees, penalties, reimbursements or other monies
Maintenance of schedules and deadlines for submission of plans
and data, corr.pletior. of reredisl components, and coir.pletior. of
consent decree requirements
Resolution or disputes that arise during implementation cf the
. consent decree.
These tracking functions require substantial coordination between the
government bodies charged with RCRA and CERCLA functions. The next
section describes the roles and responsibilities that best serve a
coordinated follow-up effort.
B. Preferred Rcles for Tracking Enforcement Actions
The EPA, DOJ, and states are charged with specific responsibilities
in ensuring the accoir.plishment of court-imposed actions by defendants. In
roles parallel to their pre-judgment efforts, EPA and DOJ perform
complimentary, yet separate functions. In addition, the states have
potential functions related to their position and ability to perform
monitoring activities. Since states may be party to the enforcement
decree or judgment, they must assume responsibility fo'r its relevant
sections. Exhibit VI-1 shows EPA, DOJ and state roles.
VI-1
-------
EPA
EXHIBIT VI-1
POST JUOCMKNT RESPONSIBILITIES
DOJ (or US. Attorney)
RFCTON
States
I
to
Han lead role In tracking
implementation of compliance
for consent decrees and
court judgments. Include!
- Designation of lead attorney
for tracking
- Designation of lead technical
staff for tracking
Lead tracking attorney:
- Ensures timely agency
review, approval or other
decision is communicated
to responsible party.
tpad tracking technical staff
- Coordinates required technical
support
- Arranges necessary contract
support.
- Ensures adequate Implementation
Identifies violations or disputes
2. HEAJJOUARTERS
. Maintains manual or automated
follow-up tracking sysem for all
enforcement actions
. Maintains contract capability for
' technical support, to ensure
compliance . .
„ Ordinarily oversees the
identification of violations or
disputes.
Takes any necessary action
required for follow-up to
violations or disputes.
May be able to provide
compliance assurance nupport
at request of EPA regional
office, including!
- Site visits
- Maintenance insepctlons
- Review of reports and
proposals.
Mny be responsible for
specific sections of decree or
•judgment wh«»r»»:
- State Is a party to
pnforcement action
- State renourcps are most
- effectively employed.
O
»
fi
»
1h
10
CD
UJ
-^j
•
o
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OSi-JER $ 9837.0
EPA's role, especially in the Region, is a major factor ir.
post-judgment monitoring. As in previous case development steps, lea =
technical and legal staff menoers are appointee in the Regions. T.-.eir
jobs, as shown in Exhibit VI-1, represent leadership positions in Agency
communication with the responsible party, Agency technical review, anc
arrangement for contract support. EPA Headquarters maintains contract
capability for follow-up through its TES contract and its Interagency
Agreement vith the Army Corps of Engineers. These can be used to review
remedial design and remedial implementation, as well as, in appropriate
circumstances, for compliance monitoring. >
Headquarters is also responsible, for maintenance of tracking systems,
used for management information at the national level. The automated or
manual system should be capable of tracking all enforcement actions
requiring follow-up. The National Enforcement Investigations Center
(NEIC) currently uses a tracking system for. judicial consent decrees in
all EPA programs. Future expanded use of this systeir. by EPA Headquarters
and Regions is under consideration.
Final follow-up responsibilities belong to DC', typically in response
to a new referral which must take any action needed to respond to
violations of decrees, or to disputes.
C. Cr-?gtra:-.ts anf Obstacles tc Post Jufcrr.ent Fcllov—-j-
Lack of designation of responsibility and shortfalls in resource
commitment may hinder post-judgment efforts, effectively thwarting the
result of otherwise successful enforcement actions. Tnerefore, the roles
discussed abo*ve must be clearly delineated and communicated to the- .
appropriate offices. In addition, the importance of post-jucgr-er.t
follow-up must be emphasized.
Effective tracking of enforcement actions requires sufficient
resource availability, especially in the Regions. Thus, as staff
responsibilities are determined, staff must be made available to fill the
positions. Further, contract support should be specifically available for
technical enforcement reviews. These reviews may be of investigation
plans, remedial actions and designs, and remedial analytical results. Tc
be effective, contract support is needed in a timely fashion in response
to short Agency review schedules.
The results of strong enforcement efforts by EPA and DOJ must be supported
by equally strong post enforcement tracking. In this way, the Agency and the
Department can best ensure that judicial decisions are realized.
-•*»•
VI-3
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OSWER * 9837.
LIST OF ABBRTVIATIONS AND ACROKYKS
-------
LIST OF AEEKZVIATIOKS AND ACRONYMS
OSWER $ 9337.C
AA Assistant Administrator
AO Administrative Order
ATS Action Tracking System
CAA Clean Air Act
CERCLA Comprehensive Environmental Response, Compensation and Liability Act
CFR Code of Federal Regulations
COE Corps of Engineers
CWA Clean Water Act
DOJ Department of Justice
EA Endangerment Assessment
FEMA Federal Emergency Management Administration
FIFRA Federal Insecticide, Fungicide I Rodenticide Act
FOIA Freedom of Information Act
FS Feasibilty Study
FTE Full Time Equivalent
FKS . Fish and Wildlife Service
HHS Department of Health and Humar. Services
LAA Lead Agency Attorney
LTA Leac Trial Attorney
LTR Lead Technical Representative
NC? National Contingency Plan
NIIC National Enforcement Investigations Center
NFL National Priorities List
DECK '• Office of Enforcement and Compliance Monitoring
OSCM-K Office of Enforcement and Compliance Monitoring, Associate
Enforcement Counsel for Waste Enforcement
OER5, Office of Emergency and Remedial Response
ORC Office of Regional Counsel
OR2 C ice of Research and Development
OSC C.-.-Scene Coordinator
OSKIE Office of Solid Waste and Emergency Response
OW?E Office of Waste Programs Enforcement
POLREF Pollution Report
RA Regional Administrator
RAP I necial Accomplishments Plan
RC K-.-gional Counsel
RCRA Resource Conservation and Recovery Act
REAP Regional Enforcement Activities Plan
REMS RCRA Enforcement Management System
REM/FIT Remedial/Field Investigation Team
RI Remedial Investigation
ROD Re'cord of Decision
RRT Regional Response Team
SAIC Special Agent in Charge
SCAP Superfund Consolidated Accomplishments Plan
SDWA Safe Drinking Water Act
SPMS Strategic Planning and Management System
TES Technical Enforcement Support
TSCA Toxic Substances Control Act
USAO U.S. Attorney's Office
'-4*° i
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£ 9837. i.
APPENDICES
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One
Page _1_ of 5
STwlX ONI
A FACE CASZ
$107 CERCA
HA2 SB/FACILITY
OSKER * 9837.0
FA*. TO Bi FRC7vi_- ISTATLTGr.1: BASii IQ>tS»TS
I. A. Release or threatened
release
B. of hazardous substance
C. fror a facility
"
D. Release or threatened
release of a hazardous
subs tance caused . incrrence
of response costs
*
107 (a) (4) enc
101 (22)
107 (a) (4)
101(14)
107 (a)
101 (9) (15)
107 (a) (4) end
A witness capable at describing site
conditions and/or history is necessary.
NOTE: definition of release is very broad
and "threat" of release greatly expanos
notion.
Sufficient analysis of waste tc identify
at least one of the substances contained
in definition. Definition should be read
in alternative.
Analysis of waste should be done during si:
investigation or during response action.
Unless admitted, description of site using
key words of definition should be adequate .
NOTE: defir.itior.al exclusion of "consumer
product in consumer use". Alsc note
exclusion at 107 (j) for "feder&Ilv penitte
release" 101(10).
Location of facility establishes probable
venue "under SiD(b) (Exception: bankruptcy;
NOTE: Vhile release or threatenec release
a particular generator's or transporter's
waste is not recuirec, it should be
established wherever possible.
An administrative record of. decision .
should exist which documents "release or
threatenec release of hazardous substance"
leading to "incurrence of response costs".
The ROD will presumably be executed by the
individual authorized to spend fund money,
and will be backed by administrative record
Witness should be available.
II. Each defendant is liable as
either:
A. Owner
(1) At time of release
or threatened
release leading to
response or at time
of response
•
or
107 (a Kl)
101 (20) (A)
-•?»•
A-l
103 (c) Reports may be useful evidence for
owners /opera tors /transporters. Nonexistenc
of report may help eliminate 107 (b) defense
Owner (s ) at tine of release /threatened
release leading to response action
established by title investigation. NOTE:
Security holders are not owners unless chey
participate in management of facilitv.
101 (20) (A) Req. for Ada. should establish
easily.
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Prisa Facie Case: S1C
KA2 SV3/FACILITY
OSWER * 9837.0
FACT It 5i fS3V-£
(2) Disrtng disposal of
hazastieus s\±>stanee
8. Operamr
(1) At eiae of release or
threatened release
leading to response
or a: taoe of response
or
(2) IXs-ing disposal of
hazardous substance
C. Generator
(l)(a) Arranged for disposal
or tree'. .«-.t. . .
KAT\?£T..:' aAilS , OfS-T;
107 (a) (2)
101 (20) (A)
lD7(a)(l)
107 (a) i2)
107 (a X3)
lOO- RCXA
Owner(s) during disposal established by
evidence of dates of disposal of hazardous
tastes (which lea: to incurrence of
response costs) coupled with title
investigation. Rec. for Adrission should
establish ownership dates.
In most instances the operator will be
easily identified, usually a corporate erjsir
To reach individuals working under corporate
either (1) pierce corporate veil (not ear-')
or (2) establish that the individual
"controlled activities at facility" or
"oerticipated in manaeenent" of facility.
The "ccr.rrolled activities" test will be DOS:
easily sustained if it occurred ianeciately
srior to "abandoment" of facilir--. Se=
iCl(20)CA)(iii). The "participetec in
mariafierr.ent" test is sustainable by analogy
to 101(20) (A) [second sentence]. 'Also
note 101(20) (B) & (C) for inclusion/
exclusion of cacrror. or contrac: carriers • fra*
this class.
.Evidence of dates of "disposal" [See
100*. of RCSA] of hazardous wastes (which
lead to incurrence cf response' costs) vill
be necessary inder 107 (b) (2).
"Disposal" & "Treamer.t" definitions ver>'
important. Arrangener.t car. be shown sirply
by' practice, although contract is preferable.
(b) Arranged with trans-
porter for disposal or
treanoent
(2) of hazardous substances
(3) owned or possessed by such!
persor
101(26)
101
Evidence that a particular generator's
waste is hazardous. If documentary
evidence does not establish, site samples of
waste identified to a generator should be
obtained. A whole host of possible evidence
could be used: generator, operator, or
owner information obtained under IQ^(e)
is good source.
A-2
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Prisa Facie Case: SIC7
HAZ SL3/FACILITY
OSWER * 9837.0
disposal or treacner.t
by any other
person or entity
(5) disposal or creamer.:
at faciiicy owned _or
operated by another parry
or entity
(6) facility cor.:air.ing such
hazardous substances
107 (a) (3)
I
Disposal or treatment arranged by defender.:
be done by another party. This phrase ("by
any other" person or entity") may be read
to modify "owned or possessed by" rather
thar. "disposal or treatment", thus reaching
parties tho never owned or possessed the
waste (such as brokers).
Transporter
(i) acce?:ed hazardous j lCT(a)(-)
substances for transport I 101(26)
or disposal
(2) to treamen: facilities |
selected by transporter !
Show :ha: hacardous substance generated
by defendant was a: site. Best
evidence would be on-site analysis or
! ider.tificatior.. Acceptable e\-idence wc--ld
• be dispatch, delivery- and lack of e/ider.:e
! renoval, particalarly if chat type of
i s-jbs:ar.ce is 'documented to be or. site.
Although statute does no: explicitly require
a shoving that waste was actually
transported to site arc present, such a
showing should be nade.
KDTE: A transporter who does not select the
sice may, in same circumstances, be consider
an owner, 101 (20) (b) & (C), and ir. most
circumstances will be included in 107(a) (2;.
See 101(20(5) which contacplates possible
transporter liabilirv inoer lD7(a)(3).
£. Insurers
• Guarantor providing
evidence or responsibility
under Sill
Joint anc Severa- Liability
106(0
101 (13)
A-
1. Guarantor has sacie affirmative defenses
as owner/operator who it insurers ; or
a defense of wilfull misconduct of
owner /operator .
2. No insurance for facilities under 108
until, a: the earliest, Decaroer,
1985. See lOB(s)U) & (3).
Indivisibility or injury
t
•5
-------
>endix One
rage £ of
Prisa Facie Case: 110?
HA2 SS/FACIUTif
OSi-ER * 9837.C
o v
Cos £s eid Dsaages
epsts of reuoval or
rsnedial action incurred
by U.S. Cov'c.
107(a)(4)(A)
1.
2.
3,
15.
Administrative & enforce
cent costs
included fxiid and non-fund (i.e., DDL),
FS1A) aonies
RasoN-el: See 101(23): remedial:
$101(2-)
See east and time limitations on
response actions at 10A(c)(l)— HDD
sid A/R required for exceptions. Se«
also, cost limitations of 107(c)(l),
particularly 107(c)(1)(D). Note lS7(c)
limitations not available ir. aone
eirersstances. 107 (c) (2), 103 (c).
Costs of reaoval & reoecial actions e-os
be docsaented. Tie to release or
threatened release.
Response actions are net autrcrized
"xsiless the.Presicer.: oeterrines that
such action will not be done properly...
[by a] responsible parry." 10-(a) (1)
STC. Vherever possible there
should be ar ROD or other evidence
es this effect.
10-Cb) end also
1CK2-) & (23;
Administrative and eTifcrceaer.t costs are
part of "response costs." Tne>- are
authorized by 10-(b), and thereby,included
specifically" in definition of "rencval",
101(23), and thereby into 107(a) (i)(A).
A-4
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pendix One
Page _5_ of 5
Priaa Facie Case: 51D7
HAZ SIS/FACILITY
OSVJER £ 9837.0
fALi TU
C. Natural resource damage
D. Punitive damages
1. Presidential order issued
& served
2. Defendant failed to
provide response action
without sufficient cause.
107 (i) (C)
101(16)
107 (c) (2)
1. See 40 C.F.R. 300.72 - 300.74
2. See also: 107(f), lll(b), lll(d)(l)
lll(h), lll(i)
NOTE: These damages cannot be released
except by appropriate trustee ince-
I
(Good practice requires a/c's pricr to
[expenciture. Ups ante and helps 10-(a]
ideterr.instioT..
"V. Wot .Inconsistent with
National Contingency Piar.
l07(£).;i)(A)
Words "n;-. inconsistent with" are faurder.
shiftinr tewever, U.S. 'should be
prepared :o- establish, through the use
of R'JD's n'R's, and other e/idence
prinic facie consistency'. Docuner.ts
establishing delegations of
authority shc-uid be available for each
decision' required b>- NC? and/or CEZZ^..
See Attached listings of necessary
documentation.
,
.V. Aizimative Deienses
A. The 107 (b) Defenses:
Release or threat of release
and damages were caused solelv
by ;
(1) Act of God
(2) Act of War
(3) Act or mission of a
third parry and defendant
exercised due care and
cook precautions against
foreseeable acts
1C7 (b)
101(1)
.•••?•
A- 5
1. These are clearly affirmative defense
Thus, causation is irrpliec unless
defendant carries burden to the
contrary.
NCTE: Defenses eliminated for failure
.to notify: 103 (c).
1. Third party camot be agent or erpicy
or ;.ave dirsct or indirect contracts
relation with defendant.
i
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Draft
September 6 QSWER #
DOCUMENTATION FOR RECOUPMENT OF
CERCLA EXPENDITURES
ECP CONSISTENCY
1. OSC documentation -in log book and site file
- collection of pertinent facts (S300.33(b)(2))
- reports to RRT (5300.33(b)(A))
• notification to State (S300.33(b)(5))
- notifications to FD'*A or HHS (5300.33(b) (6) & (7))
- POLREPs (§300.33(b)(ll)) (See Superfund Removal Guidance
Revision #1, 12/2/82, pp. 27-28 ("Superfund Removal
Guidance")
2. General documentation under Subpart F for all fund expenditures -
1300.61
a. $300.61(a) - Documentation that there is a release or
threat of release into the environment of a hazardous
substance or a pollutant or contaminant which may
present an endangerment.
b. 5300.61(b) - Docur.entatipn that it has not been determined
that response action will be done properly by responsible
party. (Use CERCLA 104(a)(l) and 5300.61(b) language).
c. S300.61(c) - Documentation that specified factors (state
participation; private party cleanup; local community
concerns; use established technology; industry and expert
involvement) have been considered in determining need
for or undertaking Fund-financed acitiyity.
3. Preliminary assessment - S300.64 (See Superfund Removal Guidance,
P. 9).
a. 1300.64(a) Documentation of preliminary assessment
should summarize readily-available information and
should include, vhere available, evaluation of magnitude
of hazard; identification of source and nature of
release; existence of private parties ready, willing,
and able to undertake a proper response; and identi-
fication of factors which make immediate response
necessary. .
A-6
-------
b. §300.64(b) - Documentation should suai-.aiize data OSWER £ 983^.
collected and reviewed (e.g.. site information,
photographs, interviews, site inspection).
c. 1300.64(c) - OSG should indicate reason for termination
of assessment (e.g., no release, no hazardous substance;
no pollutant or contaminant which nay present an endanger-
ttent, amount of release does not warrant federal response;
private party will do work).
4. Immediate removals - $300.65 (See Superfund Removal Guidance,
pp. 10-13 and Appendices 1 (Decision Rationale) and 2 (Ten
Point Document).
* a. 5300.65(a) - Determination (Ten Point Document or
Action Kerio) that "initiation of immediate removal
action will prevent or mitigate immediate and significant
risk of hanr. to human life or health or to the" environment" .
1) Supported by documentation that statutory and NCP
criteria have been met.CSee Superfund Removal
Guidance, Appendix 1 (Decision Rationale).
Supporting evidence should be in site file.
(a) Immediate removal is necessary.. (See Superfund
Removal Guidance, p.10)
(b) No alternatives to CERCLA removal action.
(See Superfund Removal Guidance, p.10)
(c) OSC's selection of response action is directly
related to mitigation of the release threat
or threats. (See Superfund Removal Guidance,
p.11)
2) Ten Point Document (See Superfund Removal
•Guidance, Appendix 2 (Ten Point Document)
(a) Regional Administrator (RA) has approval
authority for immediate removals up to 8250,000
(not including dioxin).
*/ Indicates CERCLA or NCP requirement for formal determination
"~ by EPA official.
A-7
-------
•3- OSWER * 9837.0
(b) Should contain "determination" language
(See 4a above) and signature of RA.
* 3) Action Meco (See Superfund Removal Guidance,
pTTTi
(a) Approval by AA, OSWER et his designee
for immediate removals above $250,000 and all
dioxin sites;
(b) Should contain "determination" language
(See 4a above) and signature of AA with
concurrence by Offices of Safe Drinking
Water, Radiation, Enforcement, (if site is
©n NPL);
(e) Forwarded from Director, Emergency Response
Division (ERD) to Director, Office of Emergency
and Remedial Response (OERR) to AA, OSWER;
(d) Based on Ten Point Document or sarse information
vhich OSC communicates by TV.'X or Hagnafax or
phone to ERD, (If request vas cade by phone,
conf inning POLREP should be prepared).
bo 300c65(b) Documentation of action taken at site
including POLRErs, Tinal OSC Report, It3jnediate
ReDoval Contract, and Invoices. Witness should be
available to explain action taken at site and to
it to release or threatened release.
S300«65(d) - Documentation (OSC's Final Report or
Final POLREP) should indicate that iBiaediate removal
eorcplete: (1) criteria of §300.65 are no longer B»et
and (2) wastes transported off-site have been treated
c disposed of properly.
*/ Indicates CERCLA or NCP requirenent for foroal determination
" by EPA official.
-•**•
A-8
-------
* d. S300.65(d) - Deter?ir.stion that, if over SI cillion OSWER * 983"
obligated or 6 contr.s elapsed from initial response,
"(1) Continued response actions are iazeciately
required to prevent, licit, or nitigate an emergency;
(2) There is it-.ediate risk to public health or
welfare or the environment; and (3) Such assistance
will not otherwise be provided on a ticely basis."
Keyed to CERCU S104(c)(l).
(1) Supported by documentation that statutory end SCP
criteria have teen ir.et (See Surerfund Removal
Guidance, pp.20-22 and Appendices 9 and 10).
Supporting evidence should be in site file.
(2) Action >'e~p (Sec Superfund Removal Guidance,
Appendix 9).
(a) Approval by AA, OSWER
(b) Should contain "determination" language
(See Ad above) and signature of AA
5. Evaluation ar.d dc-terrrinaticn of appropriate response - planned
removal and re-edial action - $300.66
a. $300.66(a) - purpose: to provide for further
evaluation when (1) assessment indicates further
response cay be necessary or OSC requests and (2)
lead agency concurs that further response should
follow immediate removal. (See Superfund Removal
Guidance p.14)
b. Documentation of further inspection (S300.66(b);
additional monitoring or investigation (5300.66(c) (1) ;
or assessment of risk (J300.66(c) (2)).
6. Planned recoval - S300.67
* a. $300.67(a) - Determination (Planned Removal Action
Keao) that (1) "There would be substantial cost
savings by continuing inrr.ediate removal; or (2)
The public and/or environment will be at risk if
response is delayed at a release not on NPL."
1) Supported by documentation that NCP criteria
have been met (See Superfund Removal Guidance
p.14) and planned removal is appropriate (See
*/ Indicates CERCLA or NCP requireoent for formal determination
" by EPA official.
A-9
-------
-5- •
factors noted at §300.6?(c) (nearby population OSt-ZR * 9837.0
threatened by hazardous substances; contaminated
drinking water; hazardous substances which
present a serious threat to health or the
environment; highly contaminated soils at surface;
threat of fire or explosion; weather);
2) Planned Removal Action Ker:o (See Superfund Removal
Guidance, Appendix 3)
(a) Approval by AA. OSWER.
(b) Should contain "determination" language
(See 6a above) and signature of AA;
(c) Prepared in draft by CSC or re-edial
project officer (RPO) and forwarded
with cover letter.explaining action
requested;
(d) Forwarded by Director, ERD to Director,
OERR, to AA, OSWER, with concurrence of
Offices of SDWA, Radiation, OGC, OEC,
OS WE.
b. $300.67(b) - request froc Governor or designee
c. Copy of contract or"cooperative agreement
required by §300.67(a)
d. Docureritation (OSC's Final Report or Final POLKEP)
should reflect that risk to public health has
been abated (considering factors listed in S300.66(c)).
e. 1300.66(d) - Deterrination that if over 6
months elapsed or $1 Billion obligated, procedures
and documentation identified in Ad above should be
followed.
f. . Documentation of action taken at site including
POLREPs, Final OSC Report, Planned Removal
Contract, Invoices, etc. Witness should be
available to explain action taken at site and to
relate it to release or threatened release.
*/ Indicates CERCLA or NCP requirement for formal determination
"~ by EPA official.
.-»*•
A-10
-------
-6- . OSWER * 9837.0
Remedial Action - S300.68
a. General Documentation
1) Site oust be on KPL (include public file, nitre
scene, public consents under S300.66(e)(A) and
Agency response, etc.)
2) Copy of contract or cooperative agreement with
state $300.62(c) & (d). Keyed to CERCL*
104(c)(3).
3) Evidence of consultation with State required
under $300.62(f). Keyed to CERCL& 104(c)(2).
5300.68(d)(1) - Documentation of scoping (i .e. ,
scope of remedial action) tased on $300.68(g)
factors.
Initial remedial measures (IRXs) - S3D0.68 (e) (1)
(See Draft Revised Guidance., State Participation in
the Superfund Remedial Prograc, Vol. 1, 6/28/83,
p. Vlll-3 ("State Remedial Guidance") and Mercoranduc,
preparation of RODs for Remedial Actions, frott Kedezan,
8/25/82.)
1) Determination - (ROD or other Action Hezo)
based upon 5300.68(e)(1) factors, that initial
remedial neasures should begin before selection
of final remedy as (a) "Such measures are
deternined to be feasible and necessary to
Unit exposure or threat of exposure to a
significant health or environmental hazard";
(b) "Such measures are cost-effective"
and (c) Remedy is appropriate when balanced
against the need to use Trust Fund Money at
other sites S300.68(k)l.
(a) Approval by AA, OSWER
(b) Supported by documentation that Statutory
and NCP criteria have been net. Supporting
evidence should accocpany ROD or Action
Heno.
*/ Indicates CERCLA or NCP requirement for foncal determination
" by EPA official.
A-ll
-------
OSIER * 983~.0
* c) R?D or other Act ior. Hero for I KM (See State
Remedial Guidance, pp. VIII - j-4)
(a) Approval by AA.
(b) Should contain "determination" language
(see 7e°l) above); declaration that state
has been consulted before detemination
of proper resedy; and signature of AA.
d) Final reredial actions - source control (S300.6E(e) (2)
and offsite ($300.66(0 (3)
1) DocuTrer.tation (rerediel investigation/feasibility
study) (Ri/FS) as first step in deterr.ining
nature and extent of problez (and copy of
contracts) - S300.65(f).
(a) Evaluation whether source control or offsite
action is appropriate based upon
consideration of factors identified in
$300.6S(OC2) and $300. 6S (e) (3) respectively.
(b) Develop-ent of alternatives - S300.68(g)
(c) Initial screening of alternatives to narrow
list of potential remedial actions •
. S300.-6-S(n) - considering cost, effects of
alternative, and acceptable engineering
practices.
(d) Detailed analysis of alternatives to
evaluate alternatives in depth - S300.66U) -
considering for each alternative specification
of alternative; detailed cost estimated;
engineering implementation; extent to which
alternative vill effectively usitigate and
sininize dasage to, and protect public
health, welfare, and environcent; adverse
environcental impacts.
* 2. S300.68(j) and (k) - PetcrruLnation (ROD) -
selection of retr.edy which agency determines
is (a) "cost-effective" (I.e.. the lowest cost
*/ Indicates CEKCLA or NCP requireaent for forcal detentination
~ by EPA official.
A-12
-------
-8-
alternative which is technologically feasible" and*
reliable which effectively citigates and
rcinirizes darages and provides adequate protection
of public health, welfare or the environment)"
and (b) appropriate when balanced aganist
the need to use Trust Fund itoney at other sites.
a) Supported by documentation that statutory
and NCP criteria have been Get. (See
State Resedial Guidance, pp. VIII 3-6 and
Appendix J). Supporting evidence should
be part of ROD.
* b) ROD
(1) Approval by AA, OVSER for final remedial
actions.
"
(2) Should contain "determination
language (See 7d-2) above,
declaration that state has been
consulted, and signature of AA.
For actions Involving -off-site
disposal, there should be
declarations that the action is
cost-effective, will create
new capacity to nanage hazardous
substances, or is necessary
to safeguard the public health,
welfare, or the environment.
(3) Document, which is sent froc RA
to AA, recoirrcends a remedial option
or no action alternative for the •
site
(4) Included in ROD are:
-- background data on site
-- summary of selected remedial options
and costs
*/ Indicates CERCLA or NCP requirement for formal determination
" by EPA official.
A-13
-------
-9-
OSl-EP * 9837.0
(5) Attachments to ROD should provide
sufficient inforsation to justify
the reaedy:
-- summary sheet on proposed reredy
•- detailed narrative sussary
describing site, enforcement
status, and rationale for
. reecsrsendir.g action
•° other supporting doeusentation
(Rl/FS, public eossents, etc.)
* (6) Operation and Maintenance (OiK)
Decision Document should accompany
ROD (See State Remedial Guidance,
p. VI1I-5)
•- for AA's signature
-- suosaries available information
about OiK needs
So cur, en tat ion of action taken at site including
POLREPS, contract for remedial wcrk, invoices,
checks, etc. Witness should be able to explain
action taken at site and to relate it to release
or threatened release.
OTHER DOCUMENTATION
10 Waste analysis-site: sufficient to show release or
threat of release of hazardous substance.
2. Waste analysis - by generator: sufficient to show
presence of hazardous substance linked to each generator,
3. Documents supporting release or threat of release &
photographs, maps and charts, fire reports, etc.
4. Title check for period coasencing with beginning
of disposal activities to presene
S. Documentation of dates of disposal
60 Generator contract*
*/ Indicates CERCLA or NC? requirement for formal determination
~ by EPA official.
-•*»•
A-14
-------
-10-
OSWFR £ 9837.0
7. Operator contracts
8. Transporter contracts
9. Leases
10. Notice letters
11. Demand letters
12. Administrative Orders
13. 104(e) letters & responses
A-15
-------
Appendix Two
Page_l of _j_
PS :*. FA::- CASE
5106 GR:iA. 42 U.S.C. 59636
I»tCNEsT H.CA-C
Tr.is cc-CMT^rt was presarec
j as rj££esticr. ar.c guidance ^
• cr.lv. I: does 3&;E3rqpc?g37
accurately cffi
'
;tc reflect accur
!cial ager.cv vievs cr'pelicies
i » T « Mf"? T » »'
I. President dete:
nines that:
5106(a)
(Evidence of a detenrir.aticr. is required.
JNoce: President's functions have been
!transferred t? the Aczinistrator of E?A.
J46 Fee. Tieg. ^2237; E.O. 12316. Alie-
Igations of specific Presider.tal a-jthcri-
'zarior. are not required. .See U.S. v.
iPelllv Tar. 5-6 F." Su-pp. 1100 C. Kirr,.
Arr^_ hirr neec net be estsr-
"larire-.t" - refers -to ircinerce cf
the risV: not harr. "Irrtiner.re cf s
rii£rc sc>es net defend on the rrrxirir^
!cf the final effect but say be prrver. b
'•the setting ir. ractior. of. a c.*.s.ir. cf
:evgr.ts vr.icr. wo-jlc ca-^se serious ir.y~>
".'r.ite: rtstes v. Kardase. Civ. !\r; 51-
:iJ51-.-' .»VI. 0>:la.. December 2, lr:I.'
:slit rt. st 2—. See alsc .--rosrrd^v
•Six or. J33Ci S>C-k
"L-.ii.vsr" --ears srr.etr.irj less thar
a:r^£l r.arr.. "Lncs.-.j=rr,er.t is not orcr.s
' tr farrual orocf alone but r-ust be ce-
;cic"ec b" assessmer.t of risk. ?.is< is to
|be assessed "free suspected b-^t net csz-
rletel- rubstantiatec relationships
'ber.-eer. fact?, trends cf aaons facts,
'free theoretical projections *1irit cr frcrt
• rroaative preiir^ina—.- aata.
'Verta: g-.e-iealCerr'.
A-16'
-------
Appendix Two
Page_2 of _3_
OSIJER S 9837.0
X- BE ??.7.1I
D. TO PUBLIC
HEALTH OR
WELFARE
5106(a)
E. OR EWISOS-
5106(a)
!§101(S)
! $101(12)
F. BECAUSE:
1. OF AN' AC7JAL <§106xai
OK THHIATIN-D !§ 101(22}
Toxicologist and other experts c-ust
be able tc ider.tify potential effect
or. husans of exposure to ccr.tar.inants
and to testify regarding population at
risk and degree of risk, of hart;.
Note: If NC? is followed evidence cay
be available in Preliminary As-
sessment. CERCLA S10i(b) authorizes
ar investigation to determine, ir,
part, extent of- hazard.
[5101(8} of CZSCLA defines envirorper.t
'broadly to include: "the navigable wate:
I the waters of the contiguc-us water, grs~.
'and water, drinking water supply, lar.d
surface or subsurface strata, cr atrie.-.:
sir within the 'Jr.itec States cr under
the Jurisdiction of the United States."
Expert evidence of acrual effects on
environment or risk cf hart: will be
.art :''-•''=-"'
health hazard.
necessary particularly if there is nc
r. witness trust be able tc testify as to
"release" or potential for "release,"
i.e. testimony re: the leaking cr
iescarine cf wastes into the environment.
iCESCLA §101(22) 'defines "release" broadly
•to near, "any spilling, leaking, purring.
ipour, emitting, ezrrring. discharging,
i injecting, e scar ing, leaching, dirking,
jor disposing, into the en\-.roment."
i
[Note: Section 101(22^ sets out certain
I exceptions. In addition there
i are federally pemitted releases.
'Note: Evidence needed to support this
I element should be available free
the work prepared under NC? -
40 C.F.R. §300 62; et sec.
A-17
-------
Faee 3 cf 3
OSWER * 9837.0
2. OF A HA-
ZARDOUS
SUBSTANCE
3. ROM A
FACILITY
11101(14)
TI06
5101(9)(8)
j
Sufficient analysis of waste to identify
at least one of the s-jbstances contained
in che definition. Analysis should be
done during site investigation.
Unless admitted, description of site
using key words of definition should be
adequate.
Note: There is an exception for any
cons-jner product in consvaer use.
II. PE?^^;5 TO BE RE-
STRAINED
B. OPERATORS
C. GSJrESATORS '3S3N1P.S ;
D. TRANSPORTERS i
E. INSURERS
[Section-106 does not identify any
'responsible parties. Liability has beer
'held to extend to those persons liable
:under S107 for cost recovery, i.e.,
! owners, operators, generators, ar.c
jtrar.s porters. See Ur.itec States v.
!Price, No. 80-4104 (D.N.J. July 25,
-------
7r.: s cccurer.t -as prepare: as
suggestion ar;; g-jicar.ce cr.ly..
It cces net -urpcrt tc- reflec-
accurately c-fficial agency
OSWER $ 9837.0j.?Tv;-.:y T—cr
PRIX.!' FACli"CASE
17003 RCRA; 42 U.S.C. 56973
views or policies.
FACT TO ££
Administrator oust
Receive Evidence that:
A. 1 . Handling,
2. Storage,
3. Treatment,
4. Transportation, or
5. Disposal
100~(33)2/
1004(3*.)""
1/3/
Administrative Reccrc
Should be available
These terss cover a
bread range,
arguably the universe,
of activities involving
solid or hazardous waste.
Statute is not lirtitec
to restraint or cessaticr
of ongoing buran ccncuct,
but also to srelicreticT.
of harmful conciticr.s,
(e.g. leachir-g) ever.
encangeraents a-d/or
ccncuct cccurring r"^~
er.act~ent. U.S. v. >eil!
Tar er.c Chezici. Ccrr.,
5-c r. Suzt <: ;c •;:. I.::
1982). Evidence zay be
available thrcuih rtcrr;
keeping recuirfe~er.ts.cr
frcz S5D07 'crcer cr
§.2C"3 order.
B. Of either:
Sclid V&ste. or
Very Ircac csfir.
of soiic Waste,
rut nets
cr.s.
-C C.F.R.
The cefi-iti"
t r. £ t
if it "tav
a waste is hc.rarcrus
. causfe, c-r
si Er.if icar.t lv ccr.tribute
tc an increase ir. i.*r.ess
cr acrtality, or if it
"r.ay . „ . pose a substsnti.
present or potential
hazard to huran health
(continued)
I/ Not deiinec by the Statute.
7/ 42 U.S.C. §6903 is'the definitions section of RCRA.
5V See-also Hazardous Materials Transportation Act, 49 U.S.C.
SS1801, 1802(6), 1809, 1810.
£/ Note, disposal includes leaking, which arguably includes actions
Che resulc of inaction or past action, rather than affirmative hucan
conduct, U.S. v. Charles Price. Civ. No. 80-4104 (D.N.J., Sept. 23. 1981
1-19
-------
FACT TO BE PP.CVED
STATUTORY BASIS
COMXZNTS
B. (Continued)
C. May present
D. Ar. Irzir.ert end
Subst-rtial Zr.cir.gerz.er/
cr the environEent"
when car.aged. These terzs
ineicate a stancard
less thsr. the strict,
conventional "causation."
There Bust be sufficient .
analysis of waste to ider.ti:
hazardous wastes. Zvieer.ee
say be available fros reeor:
keeping recuiresents .
$2002 - 3CO<..
The stancard of prccf was
relaxed in the in the
15§0 Solid Vaste Sistcsal
Act Anencaents. Previous
chis read "is present ir.g .
Issinence applies tc
nature of threat rather
than the icentif icatisr.
o'f the tine wher. the
endangeraer.t initially
arose. 5_/ Isci-erce cces
not dep"end on the prcxl=i
of the final effect ,"bui
say be proven by the
setting in action of a
clais of events which
could cause serious
injury. U.S. v. Rcysl
N. Kardage. Kc. Civ.
6C = i Oil -'•« (.U.D. Cttia,
Dee. 2, 1980).
When one is endangered,
bars is threatened; ~o
actual injury neec ever.
occur. Evidence sust
show only risK. of hars.
See Zthyl Corr. v. EPA,
561 ,~TT7c~T~nrrc. Cir.
1976). Cert. oer.. 426
U.S. 941 (1976); L'r.ited
States v. Reserve
(6th Cir., 1975); I'r.itee
States v. Vertac. ZfiTTT
Supp. 870, 865 <,£•£.
Ark. 1980).
I/ Not defined by the Statute. ..^
5/ H.R. Conniittee Print (96-IFC 31, 96th Cong. 1st Sess. 32 (1979))
A-20
-------
OSWER
See also legislative histc:
and case lav ir.terrretine
other "encaneerT.ent"
frrvisions cf federal lav,
inclueint Sections 5~'*(a)
and 311 (e) of the Clean
Water Act. Section 1^2.
of the Safe Drinking vrster
Act, Section 302(a)"cf the
Clean Air Act. Section 7
of the Toxic Substances
Control Act; Section f'c^
cf the Federal Insecticide
Fungicide ar.d Sodenticide
Act" 2601 of the Crr.su-er
Product Sgfetv Act; «rf2
Sarety anc .-.e£it*. .-.c~;
§'6":C(b) cf the Hazardous
Materials Transportation
Act: § * 5' 1 ' b / cf t - e
§1^5 cf the^Marine"
Protection Kesesr:*, and
Sanctuaries Act. e-d
§255'e) of f-e F^dersl
Fnoc, Drus ann Ccsretic Act
Health, or
T'r.r er.virrr.-er.t
.-e terr rresursr.y
incrrrorates surface
«cter.. err-unrwater,
sril. .anr air, and ^rrrably
i-cl-.:r:es fish. r.£--als ,
biota, and riant life. ?rr?:
of t'-rest to these elerents
oresuToT.v reets statutor}r
rrocf recuiresent. There
~ust be sufficient evidence
t? est&hlish (V» the
fubstances aresent, (2)
that sucu wastes ray csuse
sienificant adve.rse effects
on h-jrar. health or the
environment, and (3) such
vastes cause threat to tvat
healthjOr the environment
in the area at issue.
I/ Not defined by the Statute.
A-21
-------
OSVER $ 983
See also A-pencix 2;
CZRC1A SI 06'.
See Appendix I s.rsrs . re:
coc'-rentatior. o3
CISC1A ex-er.citures f:r
rei-'r-jrse-er t. Alsc.
see Secticn 3I-'V sr.d
31 ' «'f " arc (*" , CV:A.
A rit'r.t to recover federa
fur.cs ~ust be i-tli-ed,
because Section 7j03
does net ccntair. a-r.y
extress authority to seek
cost recovery. See
Vyan-dctte Trans. Co. v.
U.S. 2 6 y U.S. *f' (. " 5 c 7 ) ;f
U . S . v. Mcran roving'
arc Transocrtet ion Cr . .
-C'? ~.2c ?c: ;-tr. Cir.
•=r = ; ; "nitec States v.
"rice, ?.es t s:*-e- t ,
FACi TO si PROVED
B. Take Such other action
as cav be necessar?
C. Recovery of U.S.
Expenditures
1. Resoval/F.erecial/
Cleaiur Costs
2. IT. for cere-t Costs
-------
OSWER £ 983~.0
• 4. •
YAC1 TC- 5i ??>"'•'£!
II. Person cc be 10C-i(15) Such sersers ray include
restrained cvr.ers _or creratcrs of the
sice, fcrrer evners or
operators, landowners/
lessors, independent
cc-ntractcrs , corporate
officers and directors
(ir. the official and
individual capacities;waste
generators, waste trans-
porters. See e.e. U.S. v.
Heillv Tar; D.N.J., Nc.
SC--1C"-. U.S. v. Charles '
rriee fV.e-. Or., TuT7^ "
26. 19?2); But see U.S.
v. Vace: U.S. v. '»££Te
ettacr.ec evicer.ce cr.ecf. . is t.
Relief:
A. Scop such
1. Handling I/ • Included ir. relief granted
2. Stcraee 'TOGi'22? by courts ir. 7IC2 actirns
2. Treatment 1COi(3-> are restraint cf c:nti-.uef
*•. Transyortatior. - •' T' leakir.e ("rice' , investir-
5. Disfcsal 6/ ~ T:c^(3) ative activities (65* F.Id
2D- 3rd Cir. '?E:v; r>re-£rc-
tion and i-rlere-.tat icn
cf olsns for rencval cf
wastes (X:dvest Sclvents
?.ecsver"T! in;un c 11 en
ecainst further activities
on site, fcrrulati.cn of
plans fsr security end
removal of plans fcr
security and reaoval
of wastes (Ottati end
Gess ) . See Also U'.5." v.
Tiaronc Shar.rocV Ccrr.
C:".D. Ohic, Civil No.
. ' CSO-1S5T, terror an cur.
Opinion cf May 2?. 19£V,;
I/ Nor defined by the Statute.
£/ The government need^ not allege the acts of disposal which gave
rise to the condition. The focus of Section 7003 is rather on
amelioration and prevention. L'ni;»ed States v. Sclyents ^e = °Yf^"
Services. 496 F.Supp. 1127, 1125, 1132, 1139-41 (D. Conn. 195C)
A-22
-------
OSKER « 9837.0
Appendix Four
'ef
PRL^V- FACIE CASE
$3:3 C.ear. Air Act, 42 U.S.C. 76C-3
.as suggestion an gu:s«
!cr.ly. I: does not purport
>r reflect accurately effi-
.:cial agency v:e--s or pclicie
I i » « »* • '. » * »
T
I.
RECEIVES EVI3EN
IHAT:
'There =-ust be scrae administrative reccri
jshcvirsz what evidence the Acrinistracer
Ireeeivec. This iriforzstior. oust be
icc-.firsec by State arc local authorities.
:: See S-ur^arts F sic G belov).
A. A POLLLTION
SC'.-r- Or. -75M
•riVTlON 07
§513,a;
Scte:
:T!-.ere is nc specific cefir.itir-. rf pcl-
luticr ss'urce ir. the CAA. "Mrvir^
'srurses" ir.cl-oces those sources covered
'xr>cer S-jbchaster II cf the CA.-., -1 'J.S.C.
•§°55I tc i2 U.S.C. S-;'-. 'T^jrr sta-
so-urces" is defined ir. -2 '.'.5.C.
I
E. is ?Ris?rr:s3
r AN" •»*>'--rr- —
W « A> > »>..*-1*M*B
' i^.e threaterir.g condition a-ust _be ir.
•eister-ce.
'Nrt«: 'rwer Si.^03 ef SC?A; S10* cf
= CZ?.r-r. e:s 51^31 cf S?:-. the startar:
'has beer, relaxed to "=ay present."
i
i
'"Irriner.t" refers to iarin-ence cf risV. n:
:hart. Aor-erydix six of SVCA.
•^.s legislative histtr-- or. the CAA's
'eririnal iTninent and s-obstar.tial hatard
orr.-i5ier. provides that it is "not in-
iteDd*d as a substirjte prpced-^re for
:chrc-.ic or generally recurring pcl-
!l'jti-?r. problems v-.ich should be caalt
:vith \r«der other provisions cf the
'Art." H.?.. Rep. No. 72S, 90th Cor.p.,
list Sess. 11? (1%7). See United States
|v. Reillv Tar. 5^6 F. Sup?. UDC>, 1110
!C. Xinr.. 1552).
A-24
-------
Appendix Four
Paee 2 of *
OPV7FR * 9837.0
E. TO THE HEALTH |$303(«)
OF PERSONS !
Expert and technical witnesses will have
to' establish (1) the types of pollutier.
jesanating frac the subject sources; (2:
that the pollutants say cause significant
I health effects on husan beings, and (3)
'that under facts of this case the popu-
llatior. s-urrounding the pollution source
'are er aav be affected bv the source.
F. EPA HAS CDS-
FIRXED TVZ CD?.-
REC7MLS3 OF ITS
!Agency aust have doc-jser.tatior. or other
!proof that it first atcrisec itself of the
Iccrrecm'ess of its infcrnsticr. frsc state
:and local authorities.
G. S^IATE A.'C LOCAL
Ncr:".Acrb"TO""v"
ABATE SUG- SO'JRS
OR SOLACES
'Agency rust have docurientaticT. or ether
!proof that state or local authorities have
Inot acted to abate the source. .And
'presumably that State and local f-r^re
I action will not be adecuate.
i
.
T?ATOR MAY 3Ri:
S-;iT IN THE A?-
PROPHLATE D1S-
T3ICT OOL-RT'TD
r- v
RESTRAIN
B. ANY PERSON
i 2S U.S.C.
;§13?l(b),(c)
15303(a)
03(c)
U.S.C. 7602
'Verroe is appropriate in the district where
id) the erissior: is occurring; (2) the
(defendants reside, or (3; if"a corporstior
I is being s-jec, where it is licensee tc
Ico business.
Person" is defined broadly to include in-
dividual, corporations, -partnerships.
'associations [govemaent authorities],
land officers agents and employees thereof."
.-*»•
A-25
-------
Arpendix Four
Face 3 cf <:
OSV.TR £ 9837.0
c. CAUSING OR
COST?,: BITING
TO ~-Z AL-
LOGS POLLLTI 3N
i$303(a)
!UnJ< between person and to the source eust
!be established.
D. 7C S7D? THE
BCSSICN OF AIR
POILITA'JTS
CAIJS-NG OR
>»^- . * - "— w-. . .. «v
rros-ises crigir.&l j-uriscictior. to dis-
'trist eo»urt. Frier A/0 is net reruirec<
MAY
V^ere hacardr-us sir p
at; iss-je, i2 I'.S.C. S
States zay be able tc
r __utar.ts ar
ts.--.£ acticr
cf Part I i-.ers rust S= s-jrst=.-.ti,al evistnce
:cf izr-etiste health en-er|£r.cy.
I-ZAITK OF ?E?30r:S ;
vv:r ASI OR VAY i
BE A?TECTiD aY •
SUC-: FO-LLTION
'Abatater.t orders, as nctec belov, are
: available for c-.l- 2- hr-urs -ur.less =?•.
iartisr. is filed. See C below
A-2 6
-------
Appendix Four
Paee £ of £
OSWER * 9S37.0
C. IF ACTION IS
FILED WITHIN 2^
HD'JRS A2KINIS-
TRATIVE OFOEH
WILL BXT2.T) FOR
&8 HOURS. TSS?£-
AJTER COSC >fJST
EXISC ORDE?..
IF ACTIOt; IS
NOT FILED A'O
2t HO'JRS
I
!S303Cb)
rt will obviousl7 require 730
jane irceciate nozificacion to DCJ if
! order is i
Drier ar.d prccf cf ser/i
;azzir.isrrs:ive reccrd rj
jiss-jance, i.e. evidence i
i presentee. Ksnc deliver^.
I receipt will be recuirec.
e, trsetrier witr.
acrriri irs
n rari I. ~^st be
•Evidence cf affirmative crr.durt co~
1tc order Tj£t be introduced.
3. Failure cr
Kefusal tc
Cccrlv
: Evidence thct defendar.t has r.e
i corriy b»^t does net.
A-27
-------
•SWER t 9837.0
NCT£
his docurer.t was preparees
s-gges:icr. and guidance cr.lv.
It cces net purport to refle:
accurately official agency
accuratey ocia agency
views or policies.
APPENDIX F'.VS
Appendix Five
Page 1 of 6 Pages
fACT TO 5£ FROVEI
Conditions rr&cecent
A. The Administrator *04(a) Higher degree of proof and certainty
(ef ErA; rust than "ir.forsaticr.." Recorc cf ir.-s'r-
receive evidence satior. receivec anc steps taker, te
ccr.fin its accuracy shculc be
presentee.
£ . Tr. at =
source
binatic
scur^es
r 7 1 1 u t : c n
or cc=-
n cf
„>. — •. a ,
5C:;19)
5C2(12)
5C2(6)
c - - . — ••.
:> c t e :
Although not specifically defined, u
of tern "pollution source" rather' tr.
"cischarge cf cf pollutant" apparent
allows the Administrator tr act
C ;
eT
«. ]•
been a
K2v9; cischarge cf pcllutant.s, but also
•502(10) if a discharge is serely _threater,e
It is possible the use cf the ter^
"pollution source or cossinaticn o=
sources" (pollution is cefinec in
502(19)') also can be used to allow
the Aerinistrator to act when the
recuiregents of a discharge or
. threatened cischarge cf pollutants
are not cet (i.e. the cefiniticr. of
point source is not net). Pollution
source is a broaaer ter= anc say
induce sore entities than point
source. (See S306(a)(3) "sourct"/
However, when reac in conjunction
with the later phrase "to stop the
cischarge of pollutants", it see=s
that the Acitinistrator probably should
be presented with evidence that there
has been, is, or threatens to be a
"ciscr.arge of pollutants".
Discharge or threatenec discharge cf a
pollutant (502(12;) '•
Sufficient analysis of the waters fror
eocusentary evicence or sasples
.-?*• (S308, record ,and reporting require-
aents is useful source), to identify;
A-28
-------
Appendix Five
Page 2 of 8 Pages
OSWER * 9537.0
FACT 1C EE PROVE:,
STAT'.TCRY BASIS
(1;the accition of at least one of
the substances contained ir. the terr
pollutant anc/or testiaony that such
adcition is threatened. Pollutant
defined in 502(6). Note: exclusion
free definition of (a) sewage fre=
vessels as defined in §212(6;; (b;
water, gas, or other rsterial which
is injected into a well tc facilitate
wcter production derive; ir. asscci=;i:
with oil or gas ar.c cispesec of ir. a
well, if well is apprcvec by State-
and State ceterr.ir.es su:h ir.jecticr.
cr disposal will ret result ir. the
degradation of grcunc cr surface
water resources.
o navigable waters
C) To na
"navigable waters is rot rer.t;--.ec
in §50*., nonetheless it is very
broadly defined and coes net recuire
"navigability i- fact." It ir.cluces ,
creeks, tributaries, anc sewers.
See e.g. U .S . v. Velsiccl Cher;:al
Tenr. . 1976).
"grcundwater . "
It cces net ir.cluce
) ~ro- ar.y pcir.t
source (5C2 •; l-.v! Note: exclusion :r:z
"pcint source" of return flews tr^t,
•irrigated agriculture cr car-incuofec
pollution. (*.; The acciticn or
threatened addition of any pcllutar.t
to the waters of tr.e contiguous zcr.e
(502(9)) or the ocean C5G2-;1C;; frs=
any point source other than an vessel
cr other floating crart.
Note:
The tern; "discharge" extencs. to the
incirect, accioental or unintentional
such as eight result by an act cf Goc
upon an enclcsec processing facility,
the structure of which woulc appear" tc
•**• preclude the possibility of the
addition of pollutants to navigable
waters.
A-29
-------
Appendix Five
Page 3 of S Pages
OSVER r 9837.0
FACT TO BE F?.CV£j
'.TORY BASIS CC.'IMISTS
C.
is presenting
-(a)
Lor. of "pcirt source"
brcac anc does not require a showin
intent or unreasonableness of exist
collecting systes; for exarple, sur
runoff of polluted waters, ever, if
resulting fros rainfall or gravity,
once ecllectec or channelled,
constitutes cischarge fro= a "rcir.t
seurce". "See United States v.
Earth Sciences. Ire. , 5rr F.2c
s
g of
ing
gee
.: e 6 ClGth Cir. i 5 7 9; .
•
The threatening conciticr. rust b(
existence.
Ncte: Uncer 51-21 SDWA, SICfc of
CE?.CLA and S70C2 F.:?-A. the star.card
cf proof is related to "=ay
D. An imainer.t
and substantial
endsr.gement to
(1) the health
of persons
(2) to the welfare
of persons where
such encar.geraent
is to the
livelihood of
such persons,
such as inability
to aarket she
11*--
ish.
Best evidence would be actual har= to
health or welfare (as liaitec;^/.
However, tent "encangenaent" ~
interpreted broadly and only proof cf
risk of hers, not actual hart: reruires.
L'r.itec Stares v. Feserve .hininc,
51*. F. 2c ^92 (5th Cir. 1&75; ."
L'r.itec States v. Vertae. *.££ F.Supp.
670 66: ;'£. D. ArkT IT5T}.
Two elesents ir. "risk of harr"
analysis: (1) probability of harr
(risk); (2) har= in event of exposure
(cor.secuences). Evicence regarcing the
"risk"'would be the level of pollutants
present in the water. Evidence as ts
the "harz" or "consequences" could be
expert testimony that under an
acceptable,.even if as yet unproved
medical theory, the threatened release
say be injurious to the public health
or'causes a "reasonable concern over
the public health." Even a low level
/ However, even actual harm nay not be a sufficient showing if the relief
requested (e.g. shutting down plant) is-«-s ignif icant and ithe pollutants could
De reaoved fairly easily.
A-30
-------
OSV7ER ¥. 9337.0
Appendix Five
Page 6 of 6 Pages
ACT 70 £1 FRCVSD ' STAT
g'g
cf pollutants say be an "encar.§errer.:
if the testimony raises a "reascr.able
concern" over the public health froc
such discharge (see list below}.
Whether there Bust be a shoving
of "ir-ninent and substantial" as
independent factors fron the
er.car.gen.ent element is unclear. Tc
the extent "irriner.t" is given ar.
independent reaning, it probably
-reifies the risk of harr rather -.':.-.-.
the han itself -- i.e. the risk cf
harr, not 'the harr itself, rust be
near rather than rer-cte in tire.
(Discharge of pollutant that ray
cause harr t: health after a peric-c
cf latency, presents ar. irriner.t
encangement).
"Icrinent" does not refer tc the
tire when the encangerrent occurrec -•
the events cay have occurrec in the
past but be presenting a threat tc
public health or welfare.
"Substantial" probably oocifies
the ham elerent only, although it is
possible that the terr applies either
tc the risk or the hars, but net both.
Tsost persuasive, in descencing oreer:
a. Actual hars to health causec by a
di scharge.
b. Acverse effects on the welfare cf
persons affecting livelihooo - e.g. th
FDA cay prohibit fishing because of th
high concentrations of pollutants in
the fish and the pollutants are the
result of Discharge from a particular
source. The prohibition on fishing
cay destroy the fishing industry, with
consequent loss of jobs by cany
employees.
A-31
-------
Appendix Five
rage 5 of 8 Pages
OSWER * 9837.0
.°«w.
1C BTF?.:V£-
CC)-J".£N7S
ar.d that findings o the
pollutant at the levels being
e. Scientific experiaental evidence
that husar. contact with the type of
pollutant being dischargee adversely
affects the health of persons.
d. Scientific experisental evicence
that ccr.tact with the type of pcllutar.t
being discharged has caused adverse
effects in life for=s other than
hu=sr.s. Expert should be used to
testify regarding the soundness of the
sethcc'usec in the experiment , its
consistency with scientific principles,
he
dischargee cay cause surstantia.
endar.gersent to the health of persons.
e. Experioental scientific evicence
regarding adverse health effects in
life for=s other than hu=ans, M^
introduced for purpose of shoving tha^F
such adverse health effects will
probably ir.pact life for=s in a body
of water and consequently endanger the
welfare of persons affecting
livelihooc, i.e. experimental evicer.ce
showing that a pollutant causes shell-
fish to cie within several oonths cf
contact and that the continued
discharge will ruin the shellfish
industry and place a substantial
nusber of persons out of work.
Note: The stanoard in 504(a)'dofe£
not allow proof of general hart: to
the environment only.
Note:
Whether or not the "iaainent and
substantial endangencent" is only an
aeoinistrative standard — i.e.
authorizing the Administrator to go to
court ->- or is a judicial standard
A-32
-------
Appendix five
Page 6 of 8 Pages
OSVJER ? 9837.0
CON.MNT;
which applies tor botr. a permanent
and preiicinary injunction is uncles:
If seekinc a prelieinary injur.cticr.,
the traciticnal (and core stringer.t;
equitable standards governing prel.i~:
nary injunctions should be
demonstrated: . (1) irreparable ir.jur;
ir. the absence of relief; (2) the
possible of harp to the non-noving
party is not substantial or is
outweighed by irreparable injury; (2
the likelihood of success or the
oerits; (4) the public interest
recuires relief.
i w
11
conciticr.s are ie:
set:
i. The Ac'Ttinistra:
cay bri-g suit
ir." the
appropriate
district court
to isr.eciatelv
Parties Subject
to Suit by
Acsirsistr'atcr
(1) ar.y person
>r 50-(a);
25 U.S.C.
S1391(b). (c)
•estrair..
Venue appropriate ir the district
(1) where the cischargfe or threatened
discharge of pollutants occurred, is
occurring or threatens to occur. «[2) ir.
the district where all the cefencar.ts
reside, or (3) if a corporation is
being sued, in ar.y district ir which
the corporation is licensee to oc or i£
doing business.
The term person is broadly defined to
include corporations, partnerships,
gcvernsent authorities, e'c.
5C2C5)
(2) causing or
contributing to
Che alleged
pollution
502(19)
Note:
Although "causing" Bay be
restrictive, "contributing to" has
been interpreted in a broad fashion.
Includes contribution of a sicall
amount of pollution. Induces past
acts which coulo presently be
contributing to the alleged pollution
(502(19)). See RCRA $7003; Appencix
Three.
A-33
-------
Appendix Five
Page 7 of 8 Pages
OSIER * 9837.0
FACT
IV. Power of
the Court
(1) to immediately
restrain any person
causing or
contributing to the
pollution
5C-'a).
502(5).,
5C2-C19)
Evicence t.-.a: a particular perse
inducing generator, transporter,
owner cr operator of a .point source,
is contributing (or is threatening tc
contribute) tc the alleged pollution.
If documentary evidence coes not
establish, samples froo the water
should be obtained. Evicence from
cv—er cr operator cf a point scurse
obtained under S2C6 is a gccc scurse,
Again, to the extent the action is
combined with an action ur.cer CEP.CLA
the investigations under CIP.C1A, the
investigations under CEP.ClA may be
Aroendices Or.e anc TWO.
See above
(a) to stop
the discharge
of ocll-jtants
'
See p.1 fcr cef:
cf pollutants."
(b) or to take 5Ci(a)
such other action
as nay be necessary
Gives the court broad authority tc
order affirmative injunctive relief
against tne polluter"to abate.and
rezecy the effects of encangeraent.
In ccnsioering affirrrative injunctive
relief, th'e court cay weigh several
factors: (1) the nature of the
anticipated hanc; (2) the buroen on
the coapany and its employees froz
the issuance of the injunction; (3)
the financial ability of the corpany
A-34
-------
QSWER £ 9337.0
Appendix Five
Page 8 of 8 Pages
FACT TC SI FROVI~ STATJTOr.V BASIS
to adopt new methods; (A) a margin of
safety to the public. See United
States v. Reserve fining Cc., 51-
F"7Tc"~£92 (Btr. Cir. 1975;
The court also oay consider
whether the cocpar.y is proceecir.z in
gc-oc faith to abate the encangener.:.
Additionally, the court ssy ccnsicer
whether ordering the cefencants to cc
certain acts would be the most
practical and effective solution or
whether a better is=eciate solution is
for the government to undertake the
preventative action and then recover
against those parties ultiratelv frur.c
responsible. See CERCLA. See also
United States v. Reserve y.ir.ir.E Cc.,
F. Supp 1212 (D. Minn. _-7c..
A-35
-------
Six
ag e
of
AP-3CLX SIX
PRIXA FACIE CASE
$1431 SSWi, 42 U.S.C. §300:
OSIER * 9837.0
.-•.s crcu->er.t was rrepar-
'as suggestion and guidance
only. It does not purport
ttc reflect accurately offi-
cial agency views or'pclisi
: » » » ly"*7 * » »
RECEIPT OF F.'IDDid J42 U.S.C. 5300i(a) !?here oust be evidence to support
BY EPA A»CN1S- ! Initiation of the action. (See also
?. THAT: ; |che rec^irenieits for state arid local
'cTT.sulistiofi K & I below.)
/•. . Oo1.. «.-. . .. V. > »
S^:Ci;£ and
The terr is brsadly defined t: ir.z
•--Irr^slly ar^d fcreigr. substance ir.
'wsrer, i.e. "ary physical, chertica
"riclceical, or rscicloeical subs:
:cr r.stter ir. water." S30Cf C6; .
r.ce
B. 1. Present ir. er
'Sufficient chtsiical analysis of the
'subject oublic water svsten tc prr.*e
Izhat the contartinarit is there. .
2. Lively
er.ter
5 .•.-.•:, a;
; Expert and .'or technical vitresses tr
•testir-- as to the ncvenent or livelihood
^cf TacA'srent of the substance tc'-'src the
isu'r-ect sub-lie water suoolv.
..
Tne water syste: rr^st be for "hunar.
!c5r.s\C5tion" with at least 15 service
iconnections or servicing at least 25
!individuals. Note that the definition
;includes facilities such as collection,
itrearsent'and storage facilities under
ithe control of ihe operatbr of the systen
land used "in connection with the system;"
'as veil as, collection and pretrearaent
(storage facilities not under control
jof the operator but used in connection
Iwith the syten.
!•*»•
-------
Appendix Six
?age_2 of u
OSV.TR £ 9837.0
FA
E. AN IVKLNENT
AND
F. SUSSTA'ITLAl.
D. MAY PRESET ! 53001 (a)
!530Ci(a) I/
"May present" includes "risk of harr."
Ar. actual encangeraent need not exist.
'laciner.r" refers to ininence or risk
!nct har=. Legislative histr-ry reccsr.izes
(latency periods.
'"Subs tar. rial endar.gerser.t" is defined ir.
ithe legislative history to sear. likelihood
(of adverse health effects, statistical
"probabiliry of disease or thrsst of serir-^3
lhars. See'K.R. Rep. Sc. ?:--ll-5, r.-ra .
G. TD THE H-^-lTH
OF F-3SON5
A??:C?R1A7I
SIAH AND LO-
CAL AiT-K)RITl££
RAVI NOT ACTED
TO PSOTICT T-Z
HEALTH OF S'Jffi
PE3SOMS
EPA CONSULTED
WITH STATE ANT
LOCAL AUTHORI-
TIES REGARDING
CDRSECTNESS OF
ACEMCY'S INFOR-
MATION 'vvHEPZ
PRACTICABLE.
I Technical and expert vimesses will ha
| to show that contaminants =a" zs-^se
!significant averse health effects or.
!iT.r;ar. beines and chat -xicer facts cf the
lease such bars sight be inflicted or. the
n which uses the vater s
(Aeency —^st have doc:r>ents*icr. cr ether
•proof that EPA first apprised itself cf .
!state or local inaction or agency ceter-
!T.ined that State and local action is
'insufficient.
should doc^aent or have other procf
iof (1) impracticability of conrjltation
'with state and local authorities or (2"
I correctness of information free local
land state authorities. Taken together,
it appears that unless the case presents
a demonstratable "eneraency" chat the
Agency should consult with State and local
'officials to confira its findings and
to assure itself that state and local actions
will not be sufficient.
I/ See Legislative History - K. Res. No. 93-1185, 93rd Cong. 2d Sess. at
36, reprinted in 197* U.S. Code & Ad. News at 6
-------
Appendix Six
Page_2 of u
OSl.T? * 983".^'
F. INTOS
OS STATE 0?.
LOCAL ACTION
• TAXES, IT
ANY
S300i(a)
[Agency should establish why State and
[local action, if proposed will not be
II. CIVIL ACTION
FOR LSJUNCTIVE
P-ELIET
'Note: As distinguished froc RC?A $7002
! and C*i 550^., SZX4r. is silent as
: tr whr are responsible parties
s\ib'.ect to ar. in^vnctior. \r;cer
; the"Act.
A. "A???C?RlAri
cLTii^ A" RI-
ess
ie tests arp.y. 5e<
; Weinberger v. Sseero-aercelo, ±55 U.S.
!3C5 (19s2.>. Nonetheless, oriza facie
'case should present overv^eLting jus.ti-
'fication for protective action, regard.
iof cost. See United States v. Price.
'63S F.2d -r- C3rd Cir. I?!:: , lar.r^ge
jof SDlv* is sufficiently broad to suthcrise
ipreliminary injunction to rec-ire r^di.r4
!cf dignostic srud-.* of threat posed to
jwaterVvipply free, toxic cure. Evidence
iof what relief is appropriate shc-^ld
'be presented.
M-.Y ISSUE sue:-:
OPIOS "AS MAY
HEALTH OF PER- i
SONS WHO A?£ OR i
^AY BE USERS !
OF THE
SYSTEM."
Based on the Agency record, containing
Ithe elements specified in Part 1, Azer.c
irnav issue an administrative order soeci
Ifying appropriate relief necessary to
(protect health. Basis for order and
'orcpriery of order should be set forth
!in an Administrative Record.
A-38
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Appendix Six
Page_A of £
OSWER t 9837.0
B. PENALTIES
S300i(b)
1. Order issued lS300i(b)
xnder §300i
jEach day is a separate violation, carrying
fa saxirruc S50D- a-cay penalty.
Order and proof of service of order to-
gether with che adzinisrative record s-ut
porting its issuance Bust be presentee.
'Returned receipt or hand delivery with
''evidence of receipt should be available.
2. Wilfull Vio- !530:-i;b,
3. Failure or
Sefusal to
Cccplv
:Evidence of affirmative ccnduct ic-.trs.ry
!ts order =ust be ir.rrocuce:.
'Evidence to establish that defendant choose
'not to cctrply.. Proof that defendant
'had aeans to cocply but nonetheless did
'not. This sav invcive discover^'.
Action tr enforce will in all l:
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