&EPA
United State*
Environmental Protection
Agency
Off ic« of
Solid W»«t* and
Emergency Re*pon*e
DIRECTIVE NUMBER: 9901.1
TITLE: _RCRA SECTION 3008(h)
THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY
APPROVAL DATE: 12/16/85
EFFECTIVE DATE: 12/16/85
ORIGINATING OFFICEflWPE
Q FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS \NER OS WER
VE DIRECTIVE DIRECTIVE Dl
-------
SEPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
Interim Directive Numbar
llffl. \
Originator Information
Name of Contact Person
r"^T^T\rj\r Q-t-oi nPT"
Lead Office "* ( — i t
LJ OUST /
LJ OERR 0 OWPE . -7
D OSW fj M.QSW^
Mail Code
WH-527
Telephone Number •
475-9329
^ • Approved for Review
^Signature of Office Director
JA££- — •
Date
Title
RCRA Section 3008(h)
The Interim Status Corrective Action Authority
Summary of Directive
The purpose of.the document is to provide the Agency's initial
interpretation of the terms used in Section 3008(h), one of the new
corrective action authorities added to Subtitle C .of RCRA by the
Hazardous and Solid Waste Amendments of 1984. The'guidance also
discusses current delegations of authority and requirements and
procedures for taking administrative enforcement actions, suggests
-— s-i-tua-t-ions-in which civil judicial action may be appropriate and
describes the relationship between Section 3008(h) actions and other
enforcement and permitting authorities relevant to corrective action.
Type of Directive (Manual. Policy Directive. Announcement, etc.)
Guidance Document
Status
D Draft
B Final
New
LJ Revision
Docs this Directive Supersede Previous Directive(s)?
No Does It Supplement Previous Directive!!)?
If "Yes" to Either Question, What Directive (number, title!
Review Plan
,E. AA-OSWER D OUST
D OERR D OWPE
E3 OSW D Regions
IXJ OECM
BOGC
D OPPE
D
Other (Specify! SJ2.
C. cor.
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives OUicer
OSWER Directives Officer
Date
Oate
EPA Form 1315-17 (10-851
-------
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t WASHINGTON, D.C. 20460
DEC I 6 1985
MEMORANDUM
SUBJECT: Interpretation of Section 3008(h) of the Solid
Waste. Disposal Act
/jvLrjfc — f/<^^
FROM: J.^winston Porter, Assistant Administrator
Office of Solid Wfffcte and Emergency Response
-
i cfe / As si s t an t Administrator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators
Regional Counsels
Regional Waste Management Division Directors
Director, National Enforcement Investigation Center
As part of our effort to support case development activities
undertaken by United States Environmental Protection Agency
personnel, we are transmitting to you guidance on the use of
Section 3008(h), one of the corrective action authorities added
to the Solid Waste Disposal Act by the Hazardous and Solid Waste
Amendments of 1984-. As you are aware, Section 3008 (h) allows the
Agency ~to take enforcement action to require corrective action or
any other response necessary to protect human health or the
environment when a release is identified at an interim status
hazardous waste treatment, storage or disposal facility. Because
the authority is broad, both with respect to the kinds of environ-
mental problems that can be addressed and the actions that the
Agency may /compel, we have produced the attached document to
provide initial guidance on the interpretation of the terms of
the provision and to describe administrative requirements. The
document will be revised as case law and Agency policy develop.
In addition, the Office of Solid Waste and Emergency Response
intends to develop technical guidance on various types of response
measures and the circumstances in which they might be appropriate.
In view of the need to issue RCRA permits and to ensure that
the substantial number of interim status facilities expected to
cease operation in the near future are closed in an environmentally
sound manner, we encourage you to use the interim status corrective
action authority as appropriate to supplement the closure and
permitting processes. Questions or comments on this document or
the use of Section 3008(h) authority in general can be addressed to
Gene A. Lucero, Director of the Office of Waste Programs Enforcement
(FTS 382-4814, WH-527) or Fred Stiehl, Associate Enforcement
Counsel for Waste (FTS 382-3050, LE-134S).
Attachment
-------
RCRA SECTION 3008(h)
THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY
DECEMBER 16, 1985
-------
I. INTRODUCTION
The Hazardous and Solid Waste Amendments of 1984 have substantially
expanded the scope of the RCRA hazardous waste management program. One of
the most significant provisions is the interim status corrective action
authority, which allows EPA to take enforcement action to compel response
measures when the Agency determines that there is or has been a release of
hazardous waste at a RCPA interim status facility. Prior to the 1984
Amendments, EPA could require remedial action at interim status facilities
by, inter alia, (1) using RCRA §7003 or GERCLA §106 authorities if an imminent
and substantial endangerment may have been presented, or (2) when significant
ground-water contamination was detected, calling in Part B of the RCRA permit
application and requiring corrective action as a condition of the permit. The
Amendments added Section 3008(h) to deal directly with environmental problems
by requiring clean-up at facilities that have operated or are operating subject
to RCRA interim status requirements.
The purpose of this document is to provide preliminary guidelines on the
scope of Section 3008(h) and to summarize appropriate procedures. The document
will be revised as case law and Agency policy develop. Other relevant RCRA
guidances that may be consulted include:
0 Final Revised Guidance on the Use and Issuance of Administrative Orders
under Section 7003 of RCRA, Office of Enforcement and Compliance Monitoring
and Office of Solid Waste and Emergency Response - September, 1984.
0 Issuance of Administrative Orders under Section 3013 of RCRA, Office of
Enforcement and Compliance Monitoring and Office of Solid Waste'and
Emergency Response - September, 1984.
0 Draft Guidance on Corrective Action for Continuing Releases, Office
of Solid Waste and Emergency Response - February, 1985.
0 Final RCRA Ground-Water Monitoring Compliance Order Guidance, Office
of Solid Waste and Emergency Response - August, 1985.
-------
-2-
0 Draft RCRA Ground-Water Monitoring Technical Enforcement Guidance
Document, Office of Solid Waste -and Emergency Response - August, 1985.
0 Draft RCRA Preliminary Assessment/Site Investigation Guidance, Office
of Solid Waste and Emergency Response - August, 1985.
II. DELEGATIONS OF AUTHORITY
On April 16, 1985, the Administrator signed delegations enabling the Regional
Administrators, the Assistant Administrator for Solid Waste and Emergency Response
and the Assistant Administrator for Enforcement and Compliance Monitoring to
exercise Section 3008(h) authority. There are three new delegations, 8-31, 32
and 33. The first enables the Regional Administrator or the Assistant Administrator
for Solid Waste and Emergency Response to determine that there is or has been a
release of hazardous waste at or from a RCRA interim status facility. The second
and third delegate the authority to issue orders and sign consent agreements.
The authority to refer civil judicial actions is found in Delegation 8-10.
Because Section 3008(h) is quite broad, both with respect to the types of
environmental problems that may be addressed and the actions that EPA may compel,
delegation of Section 3008(h) authority is subject to limitations. To issue an
administrative order or sign a consent agreement, the Regions must obtain advance
concurrence from the Director, Office of Waste Programs Enforcement, Office of
Solid Waste and Emergency Response and must notify the Associate Enforcement
Counsel for Waste, Office of Enforcement and Compliance Monitoring. Until the
Agency as a whole gains experience in using the new authority, this requirement
is necessary to ensure that sound precedent is established and national program
priorities are addressed. The Office of Waste Programs Enforcement intends to
waive advance concurrence, however, for those Regions that demonstrate sufficient
experience in using Section 3008(h) as indicated by the number and quality of
S3008(h) orders submitted for review in the next six months. Civil judicial
actions will be handled in accordance with existing procedures for referrals.
-------
-3-
To expedite §3008(h) actions, the Regions should establish procedures for
drafting and reviewing orders and referrals and clearly delineate the roles
and responsibilities of Regional RCRA enforcement and program personnel (including
CERCLA personnel as necessary) and the Office of Regional Counsel in those
processes. Draft orders should be sent to the Chief, Compliance and Implementation
Branch, RCRA Enforcement Division, Office of Waste Programs Enforcement.
Headquarters is committed to conducting timely review of S3008(h) orders.
To avoid the delays associated with discussion and review of rough drafts, we
ask that orders be in "near final" form when they are submitted. Generally,
the orders will be examined to determine whether (1) the elements of proof are
adequately defined and documented, (2) the response to be compelled is practicable
and environmentally sound, and (3) the action supports national RCRA program goals.
Written comments or concurrence will be provided to the Regions within ten working
days of receipt.
III. SCOEE OF SECTION 3008(h)
Section 3008(h) provides:
" (1) Whenever on the basis of any information the Administrator
determines that there is or has been a release of hazardous
waste into the environment from a facility authorized to
operate under Section 3005(e) of this subtitle, the Administrator
may issue an order requiring corrective action or such other
response measure as he deems necessary to protect human health
or the environment, or the Administrator may commence a civil
action in the United States district court in the district in
which the facility is located for appropriate relief, including
a temporary or permanent injunction.
(2) Any order issued under this subsection may include a suspension
or revocation of authorization to operate under Section 3005(e)
of this subtitle, shall state with reasonable specificity the
nature of the required corrective action or other response
measure, and shall specify a time for compliance. If any
person named in an order fails to comply with the order, the
Administrator may assess, and such a person shall be liable to
the United States for, a civil penalty in an amount not to exceed
$25,000 for each day of noncompliance with the order."
-------
_4- - \
To exercise the interim status corrective action authority, the Agency
9 ,
must first have information that there is or has been a release of hazardous
waste to the environment at or from an interim status facility. Second, the
corrective action or other response measure, in the judgment of the Agency,
must be necessary to protect human health or the environment. Key terms are
discussed below in greater detail.
"Whenever on the basis of any information the Administrator determines ..."
The opening clause of Section 3008(h) authorizes the Agency to make the
determination that there is or has been a release of hazardous waste into the
environment on the basis of 'any information1. Appropriate information can be
obtained from a variety of sources, including data from laboratory analyses of
soil, air, surface water or ground water samples, observations recorded during
inspections, photographs, and facts obtained from facility records.
The reference to a determination by the Administrator should be considered
in the context of the term 'any information'. To satisfy any requirement
imposed by the statute, an order should contain a specific determination. A
civil referral should also .be. based on a written determination that there is
or has been a release.
88 ...that there is or has been a release... into the environment..."
The trigger for issuing §3008(h) orders and initiating civil referrals
is the existence of information that there is or has been a release, which is
a lower threshold than the showing of 'substantial hazard1 under RCRA Section
3013 or 'imminent and substantial endangerment1 under RCRA Section 7003 or CEPCLA
Section 106. While the statute does not define the term 'release1, the Agency
believes that, given the broad remedial purpose of Section 3008(h), the term
should encompass at least as much as the definition of release under CERCLA.
See 42 U.S.C. $9601(22). Therefore a release is any spilling, leaking, pumping,
-------
' -5-
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment, The exemptions described in the CERCLA definition
are considered inapplicable or inappropriate for RCRA-purposes, however, and are not
included in the RCRA definition.
The term 'environment* is also broad. The legislative history for
Section 3008(h), which discusses use of the authority to respond to releases
to various environmental media, makes it clear that Section 3008(h) is not
limited to a particular medium. H. Rep. No. 1133, 98th Cong., 2d Sess. 111-112
(1984). The Agency will use Section 3008(h) to address releases to surface
waters, groundwater, land surface or subsurface strata and air.
It is not necessary to have actual sampling data to show a release. An
inspector may find other evidence that a release has occurred, such as a broken
dike at a surface impoundment. Less obvious indications of release might also
be adequate to make the determination. For example, the Agency could have
sufficient information on the contents of a land disposal unit, the design and
operating characteristics of the unit, and the hydrogeology of the area in
which the unit is located to conclude that there has been a release to groundwater.
In addition to on-site information gathering undertaken specifically to
support a §3008(h) action, other sources that may provide information on
releases include:
0 Inspection Reports.
0 RCRA Part A and Part B permit applications.
0 Responses to RCRA §3007 information requests.
0 Information obtained through RCRA $3013 orders.
0 Notifications required by CERCLA S103.
0 Information-gathering activities conducted under CERCLA §104.
0 Informants' tips or citizens' complaints corroborated by supporting
information.
-------
-6-
A determination that there is or has been a release does not require that
specific amounts of hazardous waste or hazardous constituents be found in
the environment. Quantities or concentrations of hazardous wastes or hazardous
constituents should be considered when ordering interim or complete corrective
actions, however, because response actions ccmpelled by the Agency must be
necessary to protect human health or the environment.
"...of hazardous waste..."
In contrast to many Subtitle C provisions, the language of Section 3008(h)
refers to "hazardous waste" rather than "hazardous waste identified or listed
under Subtitle C". The Agency believes that the omission of a reference to
wastes listed or. identified at 40 CFR Part 261 was deliberate, and Congress
did not intend to limit Section 3008(h) only to materials meeting the regulatory
definition of hazardous waste. The Conference Report specifically endorses the
use of corrective action orders to respond to releases of hazardous constituents.
H. Rep. No. 1133, 98th Cong., 2d Sess. Ill (1984). The legislative history also
indicates that the new authority should be at least as broad as the corrective
action authority in the federal RCRA permit program. Id. at 111-112. Those
regulations address both hazardous waste and hazardous constituents. Moreover,
Section 3004(u), the 'Continuing Releases' provision requiring clean-up of
releases from any solid waste management unit at a treatment, storage or
disposal facility seeking a RCRA permit, applies to releases of hazardous
constituents as well as releases of listed and characteristic wastes. H. Rep.
, No. 198, 98th Cong., 1st Sess. 60 (1983). Therefore, Section 3008(h) may also
be used to compel response measures for releases of hazardous constituents
from hazardous or solid waste.
-------
"Hazardous constituents" are the substances listed in Appendix VIII to
40 CFR Part 261. H. Rep. No. 198, 98th Cong., 1st Sess. 60-61 (1983).
According to the legislative history for Section 3004(u), which is read in con-
junction with Section 3008(h), the term also includes Appendix VIII hazardous
constituents released from solid waste and hazardous constituents that are reaction
by-products. S. Rep. No. 284, 98th Gong., 1st Sess. 32 (1983). It should be
noted that the legislative history for the new underground storage tank provisions
states that Section 3008 is not applicable to underground storage tanks regulated
under Subtitle I. Such releases may be addressed by Section 7002 and Section
7003 authorities, however. H. Rep. No. 1133, 98th Cong., 2d Sess. 127 (1984).
Section 3008(h) remains applicable to releases from underground tanks containing
hazardous or solid waste subject to Subtitle C provisions.
"...from a facility..."
For interim status corrective action purposes, EPA intends to employ the
definition of -'facility' adopted by the Agency in the corrective action
program for releases from permitted facilities. The preamble to the permitting
requirements for land disposal facilities indicates that the term 'facility'
refers to ..."the broadest extent of EPA's area jurisdiction under Section
3004 of RCRA...[meaning] the entire site that is under the control of the
owner or operator engaged in hazardous waste management." 47 FR 32288-89
(July 26, 1982). See also the Final Codification Rule. 50 FR 28712 (July 15,
1985). Therefore, the definition of facility encompasses all contiguous property
under the owner or operator's control.
The permit program, as amended by Section 3004(u), requires corrective action
for releases of hazardous waste and hazardous constituents from solid waste
management units at a facility. EPA interprets 'solid waste management unit'
-------
-8-
to include any discernable unit used for waste management. See 50 FR 28712
(July 15, 1985). Since the legislative history describes the interim status
corrective action authority as a "supplement" to permitting authority and
indicates that the interim status authority should be at least as broad as
the permit authority, Section 3008(h) clearly authorizes EPA to require corrective
action for any release of hazardous waste from discernable waste management
units. The Agency's authority to use Section 3008(h) to address releases from
solid waste management units as well as hazardous waste management units is
discussed in the Final Codification Rule. 50 FR 28716 (July 15, 1985).
The language of Section 3008(h), however, suggests that Congress did not
intend to limit EPA's authority to releases from discernable units. Unlike
Section 3004(u), Section 30Q8(h) broadly authorizes corrective action for
any release from a "facility". It does not require the Agency to find that
a release originated in a discernable waste management "unit".
The legislative history supports this interpretation. Prior to enactment
of Section 3008(h), the RCRA regulations required corrective action for releases
to groundwater from permitted 'regulated units' (surface impoundments, waste
piles, landfills and land treatment areas that received Subtitle C hazardous
waste after a specified date). 40 CFR 264.100 and 40 CFR 264.90. Congress
criticized this approach as too slow and too limited, however, and created
the interim status corrective action authority to "deal directly with an
ongoing environmental problem at interim status facilities." H. Rep. No. 1133,
98th Cong., 2d Sess. 110-112 (1984). Moreover, Congress clearly did not intend
the authority to be limited to the scope of the existing permit program. For
instance, the legislative history lists several examples of releases outside
the regulatory program for which a S3008(h) action is appropriate, including
-------
-9-
releases from waste management units not required.to undertake corrective
action or otherwise exempt from RCPA regulations and releases, such as air
emissions, to environmental media other than groundwater. Id. at 112.
The text of the statute, the broad remedial purpose, and the clear intent
to authorize action beyond the scope of the permit regulations support the
position that Section 3008(h) authorizes EPA to address all types of releases
of hazardous waste within a facility. As discussed previously, the term
'hazardous waste' encompasses 'hazardous constituents' from both hazardous and
solid waste.
Section 3008(h) will also be used to address releases that have migrated
from the facility. New Section 3004(v), which provides that EPA may issue
orders requiring corrective action for releases that have crossed the facility
boundary if the permission of the owner of the affected property can be obtained,
supports the Agency's interpretation that such releases are subject to action
under Section 3008(h). See also the Final Codification Rule. 50 FR 28716
(July 15, 1985).
In a §3008(h) order or judicial referral, Agency personnel should describe
hazardous and solid waste management units within the boundary of the facility
and hazardous and solid wastes (and associated hazardous constituents) managed by
the facility in addition to information indicating that a release has occurred.
Since Section 3008(h) unequivocally authorizes EPA to address releases from
units, the order or conplaint should establish sane link between the hazardous
constituents in a release and the hazardous or solid wastes in waste management
units where possible. For example, the findings of fact might state that the
facility treats, stores or disposes of certain listed Subtitle C wastes, that
those wastes were listed because they contain the hazardous constituents cited
in Appendix VII to 40 CFR Part 261 and that some or all of those constituents
have been found in the environment, thereby indicating a release.
-------
-10-
"...authorized to operate under Section 3005(e)..."
This clause encompasses several classes of hazardous waste treatment,
storage and disposal facilities. First, facilities that have met each
requirement for obtaining interim status in a timely manner are subject to
Section 3008(h). With respect to those facilities brought into the hazardous
waste management system when the Phase I RCRA rules went into effect, to establish
interim status EPA must demonstrate that: (1) the facility was in existence on
November 19, 1980, and; (2) the owner or operator complied with the requirements
of Section 3010(a), regarding notification of hazardous waste activity, and;
(3) the owner or operator submitted a Part A application in accordance with 40
CFR 270.10. As to those facilities in existence on the date of regulatory or
statutory changes that render the facility subject to the requirement to obtain
a permit under Section 3005, to establish interim status the Agency must demonstrate
(1) that the facility was in existence on the appropriate date and (2) submitted
a Part A permit application in accordance with the requirements of 40 CFR 270.10.
If a statutory or regulatory change requires notification under Section 3010,
EPA must also establish that the facility submitted the notification.
Second, Section 3008(h) applies to facilities that treat, store, or dispose
of hazardous waste, but have not actually obtained interim status because the
owner or operator did not fully comply with the requirements to submit a Section
3010 notification and/or a Part A. Such facilities have been allowed to operate
in accordance with a formal enforcement action or an Interim Status Compliance
Letter requiring compliance with Part 265 standards. Furthermore, the owners
or operators are not relieved of the duty to apply for and obtain a final RCRA
permit. See e.g., the notice'of implementation and enforcement policy for loss
of interim status under Section 3005(e), 50 FR 38947-48 (September 25, 1985).
-------
The Agency believes that Congress intended the interim status corrective action
authority to apply to such facilities. The legislative history for Section
3008(h) supports this position by making it clear that the authority can be
used to address releases from units that do not have interim status, such as
wastewater treatment tanks. H. Rep. No. 1133, 98th Cong., 2d Sess. 112 (1984).
Third, EPA considers Section 3008(h) to be applicable not only to owners
or operators of facilities in the above two categories but also to units or
facilities at which active operations have ceased and interim status has been
terminated pursuant to 40 CFR Part 124 or Sections 3005(c) and 3005(e)(2) of
RCRA. Section 3008(h) specifically provides that the interim status corrective
action orders may include a suspension or revocation of the authority to operate
under interim status, as well as any other response necessary to protect human
health or the environment. Consequently, a corrective measures program can
be imposed under Section 3008(h), even if a facility's interim status has been
taken away as a result of an interim status corrective action order. ' The
Agency also believes that Section 3008(.h^_carLJae_usejlJto compel responses to
releases at facilities that lost interim status prior to a §3008(h) action.
This approach is consistent with Congressional intent to assure that
significant environmental problems are addressed at facilities that treat,
store or dispose of hazardous waste but do not have a final RCRA operating or
post-closure permit. H. Rep. No. 1133, 98th Cong., 2d Sess. 110-112 (1984).
Where a State is authorized to administer the RCRA program, the require-
ments for obtaining the State's equivalent to interim status may differ from
those of the federal program. In authorized States that do not duplicate the
federal procedures, hazardous waste treatment, storage and disposal facilities
that have not been granted or denied a final RCRA permit are generally considered
interim status facilities. Land disposal facilities that were issued State permits
-------
-12- - ' '
after November 8, 1984 but have not yet received the federal portion of the
permit applicable to continuing releases under Section 3004(u) are treated for
purposes of this guidance in the same manner as interim status facilities.
Similarly, hazardous waste underground injection wells that did not receive a
UIC permit prior to that date will also be treated in the same manner as interim
status facilities. See the notice of implementation and enforcement policy for
loss of interim status under Section 3005(e). 50 FR 38947 (September 25, 1985).
"...Corrective action or such other response measure as he deems necessary
to protect human health or the environment ..."
Prior to the Hazardous and Solid Waste Amendments of 1984, the term
"corrective action", in the RCRA regulatory context, referred to removal or
treatment in place of Appendix VIII hazardous constituents in groundwater.
40 CFR 264.100. Section 3008(h) is not restricted to remedial action for
ground-water contamination, however. • The statutory language and the legislative
history indicate that a wide range of responses to releases to all media from
waste management activities may be compelled. Financial assurance for any
response measure may also be required.
The authority can be used to require implementation of one or more stages
of a clean-up program, such as:
0 Containment, stabilization or removal of the source of contamination,
0 Studies to characterize the nature and extent of contamination and to
assess exposure and health and environmental effects,
0 Identification and evaluation of remedies,
0 Design and construction of the chosen remedy,
0 Implementation of the remedy, and
0 Monitoring to determine the effectiveness of the remedy.
-------
11
For example, a §3008(h) order might require that the owner or operator
conduct a study to characterize the nature and extent of contamination, then
select a remedy and submit a corrective action plan to EPA. The Agency and the
owner or operator would then confer on the plan and amend the order to reflect any
modifications. H. Rep. No. 1133, 98th Cong., 2d Sess., 111 (1984). Because a
study on the nature and extent of contamination and the selection and design of
a remedy may require a significant amount of time, Section 3008(h) should be
employed to require interim measures as necessary to protect human health and
the environment prior to completion of the study and selection of a remedy.
Examples of interim remedies that could be compelled include removal of the
waste or containment of the source of the contamination by lining a unit or
erecting dikes. In some instances, preliminary pumping and treating of affected
groundwater may be appropriate.
While the information needed to make a determination that there is or has
been a release is~minima±7~Tnore—information may be needed to justify a specific
interim .or full remedy. The Administrator can require "corrective action or
such other response measures as he deems necessary to protect human health or
the environment." To show that a response may be necessary to protect human
health or the environment, the present or potential threat posed by the release
should be described. The Agency may consider a variety of factors, including
the quantity of hazardous waste; the nature and concentration of hazardous
constituents or other hazardous properties exhibited by the waste; the facility's
waste management practices; potential exposure pathways; transport and environmental
fate of hazardous constituents; humans or environmental receptors that might be
exposed; the effects of exposure, and; any other appropriate factors. To compel
corrective action investigations or studies, only a general threat to human
health or the environment needs to be identified.
-------
-14-
IV. AEMINISTRATIVE ACTIONS
Under Section 3008(h), the Agency can issue administrative orders or
conroence a civil judicial action. The decision to pursue an administrative
or judicial remedy must be made on a case-by-case basis since each approach
has advantages and disadvantages. An administrative order, for instance, can
usually be issued quickly, while preparation for a judicial action may be more
time-consuming and must be referred to the Department of Justice. Oi the
other hand, a judicial order or consent decree can be enforced readily since
the court already has jurisdiction of the matter.
EPA may issue a §3008(h) administrative order to require corrective
action or any response necessary to protect human health or the environment.
The order may include a suspension or revocation of authorization to operate.
If any person named in the order fails to comply with the order, the Agency
may impose a civil penalty not to exceed $25,000 for each day of noncompliance.
Notice to States
Section 3008(h) does not require that States be given notice of an impending
action. To ensure that the Agency is fully informed of relevant facts and, in
view of the Federal/State relationship, consultation with the State should
usually precede an EPA action. To avoid misunderstandings, reasonable notice
should be given to the State when an action is taken. The notice should include
the location and a description of the facility, the names and addresses of the
owners and operators, the conditions requiring a response and a description of
the action that EPA will require.
-------
-15-
Elements of Orders
r
Because it is the focal point in all proceedings subsequent to its issuance,
the initial order must be as complete as possible. Failure to develop an
adequate document may have adverse consequences if the Agency seeks judicial
enforcement. All §3008(h) orders should contain the following general elements:
0 A statement of the statutory basis for the order.
0 Factual allegations showing that there is or has been (1) a release (2)
of hazardous waste or hazardous constituents (3) into the environment
(4) at or fron an interim status facility. Facts indicating that the
response is necessary to protect human health or the environment should
also be presented.
0 A determination, based on the factual allegations, that there is or
has been a release of hazardous waste or hazardous constituents to
the environment from an interim status facility.
0 An order that clearly identifies the tasks to be performed, and a schedule
of compliance accompanied by appropriate reporting and approval requirements.
0 A statement informing- the respondent that he has a right to request
a hearing within 30 days of issuance concerning any material fact in
the order or the terms of the order.
0 A notice of opportunity for an informal settlement conference. It
is the Agency's policy to encourage settlement of §3008(h) actions
through informal discussions. The respondent should be cautioned, however,
that a request for a conference does not affect the 30 day period for
requesting a hearing.
0 A statement that EPA may assess penalties not to exceed $25,000 per
day of non-compliance with the order.
It may be appropriate to include a provision for stipulated penalties in
orders on consent. Such a provision, however, should be drafted to make it
clear that the stipulated penalty is not EPA's sole remedy and that Agency has
not waived its statutory authority to assess penalties under Section 3008(h)(2).
It is recommended that the Regions pursue judicial referrals to impose penalties
for nonccmpliance with a S3008(h) administrative order rather than issuing
a subsequent order for penalties.
-------
-16-
Releases from liability and covenants not to sue may be sought by parties
negotiating §3008(h) orders. These provisions terminate or seriously impair
the Federal Government's right of action against a party. In general, the
interim CERCLA Settlement Policy (December 5, 1984) may be followed. Releases
generally will not be appropriate, however, where the extent of contamination,
the reliability of the remedy or long-term operation and maintenance requirements
are uncertain. If provided, they should be narrowly drawn. In addition, EPA
personnel should exercise particular care in drafting such provisions to ensure
that they do not restrict the operation and enforcement of the on-going RORA
regulatory program. Moreover, the order should also contain a provision reserving
the Agency's right to take additional action under RCRA and other laws. For
example, EPA should reserve the right to expend and recover funds under CERCLA;
to bring imminent and substantial endangerment actions under RCRA §7003 and
CERCLA'§106; to assess penalties for violations of and require compliance with
RCRA requirements under §3008(a); to address releases other than those identified
in the order; to require further action as necessary to respond to the releases
addressed in' the order, and;'to take action against nonpar-ties if appropriate.
Hearing Requirement
To issue a unilateral §3008(h) order, EPA must comply with the requirements
of Section 3008(b) with respect to an opportunity for a hearing. 130 Cong. Rec.
S9175 (daily ed. July 25, 1984). Although procedures for §3008(a) administrative
actions have been established by regulation (See 40 CFR Part 22), those regulations
are not legally applicable to S3008(h) actions. Hearing procedures for §3008(h)
actions are under development. Until formal guidance is available, a Region
that intends to issue a unilateral order should contact the Office of Waste
Programs Enforcement, Office of Solid Waste and Emergency Response.
-------
-17-
Development and Preservation of the Administrative Record
§3008(h) orders might be reviewed in administrative or judicial proceedings.
Therefore, it is essential that information required by the statute and all
other relevant information or documents obtained by the Agency be compiled in
an administrative record, preserved and readily retrievable. The EPA official
initiating the action should maintain a file that contains the following:
0 EPA investigative records, such as inspection reports, sampling and
analytical data, copies of business records, photographs, etc.;
0 Reports and internal Agency documents used in generating or supporting
the enforcement.action, including expert witness statements;
0 Copies of all documents filed with the Regional Hearing Clerk or the
Presiding Officer;
0 Copies of all relevant correspondence between EPA and the respondent;
0 Written records of conferences and telephone conversations between
EPA and the respondents, and;
0 Copies of all correspondence between EPA and State or other federal.
agencies pertaining to the enforcement action.
V. CIVIL JUDICIAL ACTIONS
Under Section 3008(h), EPA may initiate civil judicial action to compel
appropriate relief/ including a temporary or permanent injunction, or to
enforce a §3008(h) administrative order. As noted previously, the decision
to pursue administrative or judicial remedies will be made on a case-by-
case basis. Generally, however, a civil judicial action may be preferable
to issuance of an administrative order in the following types of situations:
0 A person is not likely to comply with an order or has failed to
comply with a §3008(h) order.
e A person's conduct must be stopped immediately to prevent irreparable
injury, loss or damage to human health or the environment.
0 Long-term, complex and costly response measures will be required.
(Because compliance problems are more likely to arise during
implementation of these actions than while carrying out a simple,
short-term action, it may be better to have the matter already
before the court for ease of enforcement.)
-------
-18-
Other factors that could be considered include the value of a favorable decision
as precedent and the need to deter noncompliance by other potential targets for
EPA enforcement action under Section 3008(h).
A request to file a civil judicial action must be referred by the Assistant
Administrator for Enforcement and Compliance Monitoring to the Department of
of Justice. The procedures that Agency personnel should follow to develop a
referral and support litigation are described in the RCRA/CERCLA Case Management
Handbook (August, 1984) and the RCRA Compliance/Enforcement Guidance Manual
(September, 1984).
VI. USE OF SECTION 3008(h) IN RELATION TO PERMITTING, CLOSURE AND OTHER AUTHORITIES
RCRA Permits
The pre-HSWA regulations applicable to corrective action at permitted facilities
deal only with a remedial program for treatment in place or removal of groundwater
contaminated by a release from a 'regulated unit1. (Prior to HSWA, the term
'regulated unit' meant a surface impoundment, landfill, land treatment unit or
waste pile that operated after January 26, 1983. Enactment of new Section 3005(i),
which provides that the Part 264 groundwater monitoring, unsaturated zone monitoring
and corrective action requirements are applicable at the time of permitting to
landfills, surface impoundments, waste piles and land treatment units that received
Subtitle C hazardous wastes after July 26, 1982, necessitated a corresponding change
in the definition of regulated unit). Enactment of Section 3004(u) enlarged the
universe of units subject to corrective action at RCRA facilities by requiring
that a facility seeking a RCRA permit address all releases of hazardous waste
and hazardous constituents at any hazardous or solid waste management unit.
-------
-19-
In addition to increasing the number-and kinds of units subject to corrective
action, EPA will use the Section 3004(u) authority to address releases to air,
land and surface waters as well as to groundwater. Furthermore, Section 3004(v)
allows EPA to require corrective action beyond the facility boundary where
necessary to protect human health and the environment unless the facility
owner or operator is unable to obtain permission from the owner of the affected
property.
Permitting can be a lengthy process. Therefore, the interim status
corrective action authority should be used to address significant environ-
mental problems prior to issuance of the permit. With respect to 'regulated
units', which cannot be permitted until the facility is in compliance with
Part 270 requirements to assess ground-water contamination and develop a
corrective action plan if necessary, Section 3008(h) may be particularly useful
for compelling activities not addressed by the Part 265 and Part 270 regulations.
For instance, interim corrective action measures could be required prior to
permit issuance. For releases from solid waste management units and hazardous
waste management units other than 'regulated units', Section 3008(h) may be
used to compel interim measures, studies to characterize the nature and extent
of contamination and the threat posed by the release; selection of remedy and
design, construction and implementation of the remedy.
If an interim status facility is seeking an operating permit or will be
required to obtain a post-closure permit, any §3!)08(h) action at that facility
should be designed to meet the needs of the permitting process to the extent
possible. If all necessary steps in a corrective measures program will not be
completed prior to issuance of a permit, compliance schedules in the order
should be developed so that they can be readily incorporated in the permit.
-------
-20-
RCRA Closures
EPA believes that the interim status corrective action authority will
be useful in assuring environmentally sound closures of RCRA hazardous waste
management units. Section 3008(h) may be used to supplement the interim status
closure regulations. Approval of a closure plan does not limit the Agency's
ability to use Section 3008(hj, as well as other applicable corrective action
authorities, to deal with releases of hazardous waste or hazardous constituents.
In view of the number of interim status closures anticipated as a result of
new statutory and regulatory requirements, the Regions are encouraged to
employ the interim status corrective action authority to assure that RCRA
hazardous waste management units are closed in a manner that properly protects
human health and the environment.
Other Enforcement Authorities
Because of the broad scope of Section 3008(h) and the variety of activities
that can be compelled, the interim status corrective action authority may be
employed in conjunction with other enforcement authorities, although it may be
appropriate to issue separate,concurrent orders due to differing hearing
requirements. For example, where a violation is associated with a release of
hazardous waste or hazardous constituents, a Section 3008(a) action should be
used to1 require compliance with the regulation and assess penalties while a
Section 3008(h) action could be employed to compel response actions that go '
beyond regulatory requirements. Section 3013, which allows the Agency to
compel owners or operators of treataent, storage or disposal facilities to
conduct certain types of studies, may be used when the presence of hazardous
waste may present a substantial threat but EPA does not have sufficient
information to make a determination that there is or has been a release.
-------
-21-
With regard to imminent and substantial endangerment actions, the legis-
lative history makes it clear that enactment of Section 3008(h) does not
alter the Agency's interpretation of Section 7003. H. Rep. No. 1133, 98th Cong.,
2d Sess. Ill (1984). RCRA §7003 or CERCLA §106 actions are appropriate if
conditions at an interim status facility may present an imminent and substantial
endangerment and the Agency needs to move quickly to address the problem. The
'imminent hazard1 provisions of RCRA and CERCLA may be especially helpful if
*
the Agency wishes to take action against responsible parties other than or in
addition to the current owner or operator.
VII. EESERVATION
The policies and procedures set forth herein and the internal office
procedures adopted pursuant hereto are intended solely for the guidance
of United States Environmental Protection Agency personnel. These policies and
procedures are not intended to, do not, and may "hot be relied upon to create a
right or benefit, substantive or procedural, enforceable at law by a party to
litigation with the United States. The Agency reserves the right to take any
action alleged to be at variance with these policies and procedures or that is
not in compliance with internal office procedures that may be adopted pursuant
to these materials.
------- |