oEPA
United Stat**
Environmental Protection
Agency
Off ic« of
Solid Wast* and
Em*rg*ncy R**pon*
DIRECTIVE NUMBER:
990i.0
TITLE: Enforcement of Liability Requirements for
Operating RCRA Treatment* Storage, and
Disposal Facilities
APPROVAL DATE: October 29, 1986
EFFECTIVE DATE: October 29, 1986
ORIGINATING OFFICE: OWPE/OECM
C3 FINAL
D DRAFT
LEVEL OF DRAFT
Signed by AA or OAA
OB Signed by Office Director
, DC Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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United States
Environmental Protection
Agency
Office of .
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER:
9901,O
TITLE: Enforcement of Liability Requirements for
Operating RCRA Treatment, Storage, and
Disposal Facilities
APPROVAL DATE: October 29, 1986
EFFECTIVE DATE: October 29, 1986
ORIGINATING OFFICE: OWPE/OECM
Q FINAL
D DRAFT
LEVEL OF DRAFT
CJ A Signed by AA or DAA
D 8 Signed by Office Director
DC Review & Comment
REFERENCE (other documents):
S WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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United Slates Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
1. Directive Number
9901,0
2. Originator Information
Name of Contact Person
Jackie Tenusak
Office,
'OWPE
Telephone Code
475-8729
3. Title
ENFORCMENT OF LIABILITY REQUIREMENTS FOR OPERATING RCRA TREATMENT, STORAGE,
AND DISPOSAL FACILITIES.
4. S
approach to. enforcing regulatory
requirements for financial responsibility under RCRA at operating treatment,
storage, and disposal facilities. This memorandum addresses enforcement against
facilities that did not lost interim status for failure to make the required
certifications on November 8, 1985.
5. Keywords
RCRA. LOIS, Disposal Facilities
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
X No
No
Yes What directive (number, title)
Yes What directive (number, title)
7. Draft Level
A-SignedbyAA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
This Request Meats OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Date
10. Name and TiUaof Approving Offici,
Date
EPA Form 1315-17 (Rev. 5-87) Previous ecitions are obsolete.
I/
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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990 1.C
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT29
MEMORANDUM
Enforcement of Liability Requirements for Operating
CRA Treatent, /torage, and Disposal Facilities
^
Winston Porjter, Assistant Administrator
ffice of Solixl Waste and Emergency Response
- _ _
Thomas L.- Adams Jr., Ass^Xtant Administrator
Office of Enforcement and1 Compliance Monitoring
TO: Waste Management Division Directors
Regional Counsels
Regions I - X
This memorandum clarifies the Environmental Protection Agency's
(EPA's) approach to enforcing regulatory requirements for financial
responsibility under the Resource Conservation and Recovery Act
(RCRA) at operating treatment,, storage, and disposal facilities.
This memorandum addresses enforcement against facilities that did
not lose interim status for failure to make the required
certifications on November 8, 1985.
Under the RCRA regulations, an owner or operator of a hazardous
waste treatment, storage, or disposal facility, or a group of such.
facilities, must demonstrate financial responsibility for bodily
injury and property damage to third parties caused by sudden
accidental occurrences arising from operations of the facility.
An owner or operator of a surface impoundment, landfill, or land
treatment facility, or group of such facilities, must also demon-
strate financial responsibility for bodily injury and property
damages to third parties caused by nonsudden accidental occurrences
(40 CFR §§264.147 and 265.147).
EPA regions and states have requested guidance on how to
enforce these regulations at land disposal facilities that continued
operating after November 8, 1985. EPA will continue to enforce
these regulations. There is no exception to, or broad waiver by
EPA or authorized state programs of, the liability insurance
requirement.
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9901-0
-2-
Therefore, operating land disposal facilities as well as
other hazardous waste treatment, storage, or disposal facilities
that have lost their insurance coverage and/or cannot demonstrate
financial responsibility for the liability requirement are subject
to enforcement for violations of this regulation. 1
Regions and authorized states should initiate formal enforce-
ment against significant noncompliers, defined in the Strategic
Planning and Management System as those owners or operators of a
land disposal facility with major violations of ground-water
monitoring, closure, post-closure, and financial responsibility.
The FY 1987 RCRA Implementation Plan (RIP) should be used to
determine the order in which enforcement action should be taken
against facilities that have no liability insurance. The RIP
establishes a framework consisting of two components: a set of
high priority activities and a scheme for categorizing other
handlers into relative priority groups. Enforcement personnel
are encouraged to consider various site specific factors while
focusing on significant noncompliers and high priority activities.
Further guidance about how individual facilities should be
addressed under our priority system can be found in the Enforce-
ment Response Policy.
The terms of the final order developed when enforcement
action is taken.will depend upon the current situation of the
operating facility and its overall compliance status. Generally,
the facility may be given from one to six months to come into
compliance with the financial responsibility requirements. The
time should vary depending upon individual circumstances. For
example, if a facility has an application pending with an
insurance underwriter, we could give the facility enough time
to have the application processed. Conversely, a facility with
a poor compliance history could be an appropriate candidate for
a limited period of time (one to three months). If the facility
owner or operator does not obtain insurance in the timeframe
prescribed in the order, the facility should be compelled to
close. Of course, other violations at the facility must be
addressed, and necessary time periods and appropriate penalties
for lack of liability coverage as well as other violations
considered.
We encourage enforcement personnel to require the facility
to have an alternative mechanism (i.e., a letter of credit) to
assure payment of liability judgments or settlements on a case-
by-case basis for this interim period of time prior to compliance
1 The regulations do provide, however, for adjustments in the
required level of financial responsibility, on risk-based consider-
ations. 40 CFR §§264.147(d), 265.147(d). The unavailability
of insurance may not be cited as a reason to adjust financial
responsibility levels.
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9901-c
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or closure. We stress that this is an interim action only. The
Agency may amend the liability regulations within the next year
to include the use of alternate mechanisms, which would offer a
more permanent solution to some companies. The ultimate decision
regarding the remedy depends upon the status of the facility and
the judgment of the enforcement personnel.
The regulatory change that allows a corporate guarantee to
be used became effective September 11, 1986. If a State has a
corporate guarantee under an authorized program it can be used
at this time. The corporate guarantee will not be effective in
the authorized States that have not adopted this mechanism by
legislation or regulation until they revise their programs accord-
ingly. If an authorized state is in the process of amending its
regulation to allow the use of the corporate guarantee, it may
allow a firm to use that mechanism as an interim remedy in an
order for a period not to exceed one year. Thereafter, unless
the State has made substantial progress toward adoption of a
final rule allowing the corporate guarantee and submission of it
to EPA for authorizaton, the facility should be closed.
The states can also consider the regulatory authority that
allows them to assume responsibility for the liability requirement
(§264.150) for the facility whose capacity is critically needed,
or a situation where the state views the risk as minimal and wishes
to assume this responsibility.
It is also imperative that closure and post-closure plans
and cost estimates be carefully reviewed at this time. Even if
the facility is not compelled to close, it will still be necessary
to include additional requirements in the final order if the
owner/operator has not adequately addressed closure and post-closure
activities and/or cost estimates of closure and post-closure care.
If you have any questions about this policy, or wish additional
information or assistance, please call Jackie Tenusak, Office
of Waste Programs Enforcement (OWPE) (475-8729) or Pamela Sbar,
Office of Enforcement and Compliance Monitoring (OECM) (382-3096).
We are also planning to have another conference call for Subpart
H contacts and Regional and State enforcement personnel to discuss
this policy,. . .
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