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

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                      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

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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:

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.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

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                                         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

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