United States Environmental Protection Agency Off ice of Solid Waste and Emergency Response EPA DIRECTIVE NUMBER: OSWER Directive 9900.02 TITLE; Procedures for Consulting with Headquarters Before Waiving Mandatory Multiday Penalties in "Highly Unusual" RCRA Administrative Actions APPROVAL DATE: January 9, 1992 EFFECTIVE DATE: January 9, 1992 ORIGINATING OFFICE: OWPE & OE H FINAL D DRAFT LEVEL OF DRAFT [] A — Signed by AA or DAA [jj B — Signed by Office Director O C — Review & Comment REFERENCE (other documents): OSWER OSWER OSWER DIRECTIVE DIRECTIVE ------- United States Environmental Protection Agency Washington, D.C. 20460 OSWER Directive Initiation Request 1. Directive Number 9900.02 2. Originator Information Name of Contact Person Karin Leff Mail Code OS-520 Office OWPE & OE Telephone Code 260-5618 3. Title Procedures for Consulting with Headquarters Before Waiving Mandatory Multiday Penalities in "Highly Unusual" RCRA Adminstrative Actions 4. Summary of Directive (include brief statement of purpose) _,. ,. . , , , , , , _, ' v r r~ / This directive should be used by the Regions when they need to consult with Headquarters before waiving a mandatory multiday penalty in a "highly unusual" RCRA administrative action. 5. Keywords Penalties, Multiday 6a. Does This Directive Supersede Previous Directive(s)? b. Does It Supplement Previous Directive(s)? No No Yes What directive (number, title) Yes What directive (number, title) 7. Draft Level A - Signed by AA/DAA B - Signed by Office Director C - For Review & Comment D • In Development 8. Document to be distributed to States by Headquarters? Yes No This Request Meets OSWER Directives System Format Standards 9. Signature of Lead Office Directives Coordinator y^J QAM. to^ VjJ J^_A. v O^r>\xo 10. Name and Title of Approving Official Bruce M. Diamond, Director, OWPE and Karen A. Stein, Enforcement Counsel for RCRA Date Date Jan. 9, 1992 EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete. OSWER OSWER OSWER OSWER DIRECTIVE DIRECTIVE DIRECTIVE ------- a EPA U.S. Environmental Protection Agency OWPE Directive Initiation Slip Name of Program Contact Person: Mail Code: Karin Leff OS-520 Document Number: Q^S document super Does document suppk Office: Telephone: OWPE & OE 260-5618 sede a previous one? Q No Q Yes Doc. No. ament a previous one? |xl No |~| Yes Doc. No. Title: Procedure for Consulting with Headquarters Before Waiving Mandatory Multiday Penalities in "Highly Unusual" RCRA Administrative Actions ' This directive should be used by the Regions when they need to consult with Headquarters before waiving a mandtory multiday penalty in a "highly unusual" RCRA administrative action. Keywords: Penalties, Multiday Number of document pages (excluding OSWER T; Initiation Request sheets): Regi Special requirements: Planned issue date: Document Document Status: Date on Title Page: Final January 9, 1992 arget audience(s): 3ns Number Assigned (date): Transmittal Memo signed by: Bruce Diamond & Kathie Stein Final Distribution to: Oi Waste Mgt. Div. Dirs. Regs. I-X C Superfund Branch Chiefs g EDRS: Q Hard copy Q Diskette £ OSWER Directive Coordinator C Other Will final document be releasable to the public? E] Yes Q No If not, cite appropriate FOIA exemption(s): Will document be publicly available at a later date'Q Yes Q No If yes, enter approximate time frame: 63 RCRA Branch Chiefs Q NTIS 0 RAs. Regions I-X Q GPO Q Depository libraries Q EPA Library [vl Regional paralegals Q States by HQ Comments: ------- .o, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OSWER Directive 9900.02 JAN 91992 MEMORANDUM SUBJECT: FROM: TO: Procedure for Consulting With Headquarters Before Waiving Mandatory Multiday Penalties in "Highly Unusual" RCRA Administrative Actions Bruce M. Diamond, Director' Office of Waste Programs En (OS-500) Kathie A. Stein Enforcement Counsel for RCRA Office of Enforcement (LE-134S) Regional Counsel, Regions l-x Regional Waste Management Division Directors, Regions I-X The RCRA Civil Penalty Policy (October, 1990) (RCPP) permits a Region to waive multiday penalties, when mandatory for a violation, in a "highly unusual case." The Policy provides for such a waiver to be exercised only with prior Headquarters consultation, and states that because EPA has determined that almost all continuing "major" violations warrant multiday penalties, it is anticipated that such waivers will be sought very infrequently. RCPP at 25. A Region wishing to consult with Headquarters before waiving a mandatory multiday penalty in a "highly unusual" RCRA administrative action should follow these procedures. The Regional RCRA program office Branch Chief should consult by memorandum with the OSWER-OWPE-RED Policy and Regional Operations Branch (PROB) Chief (currently Steve Heare) , with cc:'s to the ORC RCRA Branch Chief and the appropriate OE RCRA Division Branch Chief (currently Gary Jonesi or David Nielsen) . The memorandum should include a justification for the waiver, and the penalty calculation worksheets for all counts should be attached. V 1/ The purpose of attaching the worksheets for all counts is to permit the reviewers to consider whether, given the facts of the case as a whole, the total penalty would be sufficient to achieve the goals of the RCPP and deter future violations if mandatory multiday penalties are waived. Printed on Recycled Paper ------- OSWER Directive 9900.02 -2- Upon notice of consultation, the PROB Chief will inform the appropriate OE RCRA Division Branch Chief and coordinate review of the issues. The PROB Chief will respond to the Region in writing, including a brief explanation of the basis for Headquarters' agreement or disagreement with the Region's rationale for waiving multiday penalties, no later than 10 working days after a complete waiver package has been received. Where litigation-related time constraints exist, a telephone response may be provided, followed by a written response. If in the course of reviewing the waiver request a consensus cannot be reached, the parties may elect to elevate issues up the management chain for resolution. As discussed above, the recovery of multiday penalties for "major" continuing violations is a key goal of the RCPP. We therefore anticipate that Regions will seek waivers in such cases very infrequently. Please address any questions on this memorandum to Karin Leff, Office of Waste Programs Enforcement (FTS 260-5618) , or Jon Silberman, Office of Enforcement-RCRA Division (FTS 260-3082) . Thank you in advance for your cooperation. cc: Regional Counsel RCRA Branch Chiefs, Regions I-X ------- |