United States
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
EPA
DIRECTIVE NUMBER: 9902.5A
TITLE: Final RCRA Section 3008 (h) Model Consent Order
APPROVAL DATE: December 15, 1993
EFFECTIVE DATE: December 15, 1993
ORIGINATING OFFICE: OWPE
LI FINAL
D DRAFT
LEVEL OF DRAFT
n A Signed by AA or DAA
[] B Signed by Office Director
O C Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
-------
^\ M f* m United States Environmental Protection Agency
^Kr t r f\ Washington. D.C. 20460
OSWER Directive Initiation Request
1. Directive Number
9902.5A
2. Originator Information
Name of Contact Person
Ellen Kendall
Mail Code
5503
Office
OWPE/RED
Telephone Code
260-9315
3- Tltl9 RCRA Section 3008 (h) Model Consent Order
4. Summary of Directive (include brief statement of purpose) This directive/model order contains
new provisions definitions, stabilization, document certification, termination
and satisfaction, alternative dispute resolution, and waste munimization information
I.t also, includes specific guidance information on stipulated penalities, dispute
resolution and force majeure.
5. Keywords RCRA, Administrative Order on Consent, Section 3008(h)
6a. Does This Directive Supersede Previous Directive(s)?
"Section 3008(h) Model Order on Consent
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title) 9902.5
dated Jan. 1$, 1988
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
fcjLojjtjUvOL. ^J^iA-^m^J
1 0. Name and Title of Approving Official
Date /
/ lid /
-------
a EPA
U.S. Environmental Protection Agency
OWPE Directive Initiation Slip
Name of Program Contact Person:
Ellen Kendall
Mail Code:
5503
Office:
OWPE/RED
Telephone:
260-9315
Document Number:
9902.5A
Does document supersede a previous one? Q No
Does document supplement a previous one? Q No
Yes Doc. No. 9902.5
Yes Doc. No. _
RCRA Section 3008(h) Model Consent Order
Document Abstract: xhis directive is a model consent order which contains new provisions
definitions, stablization, document certification, termination and satifaction,
alternative depute resolution, and waste munimization information. It also, includes
specific guidance information on stipulated penalities, dispute resolution and
force majeure.
Keywords: RCRAj Administrative Order on Consent, Section 3008(h)
Number of document pages (excluding OSWER
Initiation Request sheets):
Target audience(s):
Regions and States
Special requirements:
Planned issue date:
January 1994
Document Number Assigned (date):
November 1993
Document Status:
Final
Date on Title Page:
December 15, 1993
Transmittal Memo signed by:
Bruce M. Diamond
Final Distribution to:
E
G
Waste Mgt. Div. Dirs. Regs. I-X
Superfund Branch Chiefs
EDRS: Q Hard copy Q Diskette
OSWER Directive Coordinator
Other ____ ' :
13 RCRA Branch Chiefs
(2 RAs, Regions I-X
Q Depository libraries
Fl Regional paralegals
ElNTIS
EPA Library
States by HQ
Will final document be releasable to the public? [XI Yes
If not, cite appropriate FOIA exemption(s):
No
Will document be publicly available at a later date'QYes QNo
If yes, enter approximate time frame:
Comments:
-------
$ £* \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
DEC151993
MEMORANDUM
SUBJECT: Final RCRA §3008(h) Model Consen
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
FROM: Bruce M. Diamond, Director_
Office of Waste Programs Ertf6V8ement
TO: Waste Management Division Directors, Regions I-X
Regional Counsel, Regions I-X
I am pleased to distribute to you the Final RCRA §3008(h)
Model Consent Order. The National RCRA Model Order Workgroup has
worked very hard to revise and update the Model Consent Order
which was previously issued in January 1988.
The Order contains numerous revisions and clarifications of
the standard consent order provisions. New provisions on
definitions, stabilization, document certification, termination
and satisfaction, alternative dispute resolution, and waste
minimization have been developed. The revised Order also
includes specific guidance for many of the sections including
work to be performed, stipulated penalties, dispute resolution
and force majeure. The Order should prove to be an effective
enforcement document and a useful resource for corrective
actions. Furthermore, I believe it is fair to the regulated
community.
I would like to thank those of you who reviewed and
commented on each of the earlier drafts of the Order. The
Regional comments were carefully reviewed and have been
incorporated or addressed in conference calls.
If you would like a copy of this Order on disk or if you
have any questions about the Order, please contact Ellen Kandell,
the workgroup, chair at- (.202)- 260-9315.
Attachment
cc: RCRA Enforcement Branch Chiefs, Regions I-X
RCRA Enforcement Section Chiefs, Regions I-X
Susan O'Keefe, OE, RCRA
Model §3008(h) Order Workgroup Members
Recycled/Recyclable
Printed with Soy/Canola Ink on paper that
contain* at least 50% recycled liber
-------
MODEL RCRA §3008(h) CONSENT ORDER
U.S. Environmental Protection Agency
December 15, 1993
-------
TABLE OF CONTENTS
Section Page
I. JURISDICTION 1
II. DEFINITIONS ....." 2
III. STATEMENT OF PURPOSE 5
IV. PARTIES BOUND 6
V. FINDINGS OF FACT 6
VI. CONCLUSIONS OF LAW AND DETERMINATIONS 9
VII. PROJECT COORDINATOR . 10
VIII. WORK TO BE PERFORMED 10
IX. PUBLIC PARTICIPATION AND COMMENT IN 18
CORRECTIVE MEASURE(S) SELECTION
X. AGENCY APPROVALS/PROPOSED 19
CONTRACTOR/ADDITIONAL WORK
XI. QUALITY ASSURANCE 21
XII. SAMPLING AND DATA/DOCUMENT AVAILABILITY .... 22
XIII. ACCESS 23
XIV. RECORD PRESERVATION 24
XV. REPORTING AND DOCUMENT CERTIFICATION 24
XVI. DELAY IN PERFORMANCE/STIPULATED PENALTIES ... 26
XVII. DISPUTE RESOLUTION . . . 32
XVIII. FORCE MAJEURE AND EXCUSABLE DELAY 38
XIX. RESERVATION OF RIGHTS 40
XX. OTHER CLAIMS 41
XXI. OTHER APPLICABLE LAWS 42
XXII. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT 42
Consent Order December 15, 1993
-------
XXIII. FINANCIAL RESPONSIBILITY 42
XXIV. REIMBURSEMENT OF OVERSIGHT COSTS 43
XXV. MODIFICATION 43
XXVI. SEVERABILITY 43
XXVII. TERMINATION AND SATISFACTION ......... 43
XXVIII. SURVIVABILITY/PERMIT INTEGRATION 44
XXIX. SUBMITTAL SUMMARY 45
XXX. EFFECTIVE DATE 46
Attachments
A. REFERENCES A-l
Consent Order
December 15, 1993
-------
9902.5A
* CONFIDENTIAL *
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION [Number]
IN THE MATTER OF:
[Name of Owner/Operator]
[Name, Address and
EPA I.D. # of Facility],
RESPONDENT
ADMINISTRATIVE ORDER ON
CONSENT
U.S. EPA Docket No.
[Number]
Proceeding under Section
3008(h) of the Resource
Conservation and Recovery
Act, as amended, 42
U.S.C. §6928(h).
[NOTE: All Orders must include provisions dealing with Jurisdiction, Findings of Fact,
Conclusions of Law and Determinations, and the requirements of the Order itself. Each of
these provisions will vary from Order to Order as discussed below. It is of utmost
importance that you develop an Administrative Record that will support the facts alleged in
the Order.1
See 'Guidance on Administrative Records for RCRA 3008(h) Actions," Bruce M. Diamond,
Glenn L Unterberger, OSWER Directive 9940.4, July 6, 1989
All model order language is in plain type. Guidance and optional language, including
notes and examples, are presented in bold type. Optional paragraphs appearing in the text
of the Order are preceded by a "#" symbol.}
*
I. JURISDICTION
1. This Administrative Order on Consent ("Order") is issued
pursuant to the authority vested in the Administrator of the
United States Environmental Protection Agency ("EPA") by section
3008(h) of the Solid Waste Disposal Act, commonly referred to as
the Resource Conservation and Recovery Act of 1976 ("RCRA"), as
:This Order is intended solely for the guidance of U.S. EPA
enforcement personnel. It is not intended and cannot be relied on
to create rights, substantive or procedural, enforceable by any
party in litigation with the United States government. EPA
officials may decide to follow the guidance provided in this
document or to act at variance with the guidance. EPA may change
this guidance at any time without public notice.
Consent Order
December 15, 1993
-------
amended by the Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. §6928(h). The authority vested in the Administrator to
issue orders under §3008(h) of RCRA has been delegated to the
Regional Administrators by EPA Delegation Nos. 8-31 and 8-32
dated April 16, 1985, and has been further delegated by the
Regional Administrator for Region [Number] to [Title].
[NOTE: Where possible add information in the paragraph below regarding legal
description of the Facility, i.e., lot, block, or other streets bordering the Facility.]
2. This Order is issued to [corporate/individual name]
Respondent, the owner/operator of [Name and address of Facility],
("the Facility").
3. Respondent consents to and agrees not to contest EPA's
jurisdiction to issue this Order or to enforce its terms.
Further, Respondent will not contest EPA's jurisdiction to:
compel compliance with this Order in any subsequent enforcement
proceedings, either administrative or judicial; require
Respondent's full or interim compliance with the terms of this
Order; or impose sanctions for violations of this Order.
II. DEFINITIONS
Unless otherwise expressly provided herein, terms used in this
Order which are defined in RCRA or in regulations promulgated
under RCRA shall have the definitions given to them in RCRA or in
such regulations.
1. Acceptable, in the phrase "In a manner acceptable to EPA..."
shall mean that submittals or completed work meet the terms
and conditions of this Order, attachments, scopes of work,
approved workplans and/or EPA's written comments and
guidance documents.
2. Additional work shall mean any activity or requirement that
is not expressly covered by this Order or its attachments
but is determined by EPA to be necessary to fulfill the
purposes of this Order as presented in Section : Statement
of Purpose.
3. Administrative Record shall mean the record compiled and
maintained by EPA supporting this Order. For information on
the contents of the Administrative Record see "Guidance on
Administrative Records for RCRA 3008(h) Actions," OSWER
Directive 9940.4, July 6, 1989.
4. Area of Concern shall mean any area of the Facility under
the control or ownership of the owner or operator where a
release to the environment of hazardous waste(s) or
hazardous constituents has occurred, is suspected to have
occurred, or may occur, regardless of the frequency or
duration of the release.
Consent Order 2 December 15, 1993
-------
5. CERCLA shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended,
42 U.S.C. §§9601, et sea.
6. Comply or compliance may be used interchangeably and shall
mean completion of work required by this Order of a quality
approvable by EPA and in the manner and time specified in
this Order or any modification thereof, its attachments or
any modification thereof, or written EPA directives.
Respondent must meet both the quality and timeliness
components of a particular requirement to be considered in
compliance with the terms and conditions of this Order.
7. Contractor shall include any subcontractor, consultant or
laboratory retained to conduct or monitor any portion of the
work performed pursuant to this Order.
8. Corrective measures shall mean those measures or actions
necessary to control, prevent, or mitigate the release or
potential release of hazardous waste or hazardous
constituents into the environment.
9. Corrective Measures Implementation or CMI shall mean those
activities necessary to initiate, complete, monitor, and
maintain the remedies EPA has selected or may select to
protect human health and/or the environment from the release
or potential release of hazardous wastes, or hazardous
constituents, into the environment from the Facility. [The
CMI requirements are detailed in the CMI Scope of Work
included as Attachment [X].]
10. Corrective Measures Study or CMS shall mean the
investigation and evaluation of potential remedies which
will protect human health and/or the environment from the
release or potential release of hazardous wastes, or
hazardous constituents, into the environment from the
Facility. [The CMS requirements are detailed in the CMS
Scope of Work included as Attachment [X].]
11. Data Quality Objectives shall mean the qualitative or
quantitative statements, the application of which is
designed to ensure that data of known and appropriate
quality are obtained.
12. Day shall mean a calendar day unless expressly stated to be
a business day. Business day shall mean a day other than a
Saturday, Sunday, or Federal Holiday. In computing any
period of time under this Order, where the last day would
fall on a Saturday, Sunday, or Federal Holiday, the period
shall run until the end of the next business day.
13. EPA or U.S. EPA shall mean the United States Environmental
Protection Agency, and any successor Departments or Agencies
of the United States.
Consent Order 3 December 15, 1993
-------
14. Facility shall mean all contiguous property under the
control of the owner and/or operator.
15. Hazardous Constituents shall mean those constituents listed
in Appendix VIII to 40 C.F.R. Part 261 or any constituent
identified in Appendix IX to 40 C.F.R. Part 264.
16. Hazardous Waste shall mean hazardous waste as defined in
§1004(5) of RCRA or 40 C.F.R 260.10. This term includes
hazardous constituents as defined above.
17. Innovative Treatment Technologies shall mean those
technologies for treatment of soil, sediment, sludge, and
debris other than incineration or solidification/
stabilization and those technologies for treatment of
groundwater contamination that are alternatives to pump and
treat. Pump and treat in this instance refers to pumping
with conventional treatments like air stripping and UV
oxidation.
18. Interim measures or IM shall mean those actions, which can
be initiated in advance of implementation of the final
corrective action for a facility, to achieve the goal of
stabilization. Interim Measures initiate cleanup at a
facility and control or eliminate the release or potential
release of hazardous wastes or hazardous constituents at or
from the Facility.
19. Receptors shall mean those humans, animals, or plants and
their habitats which are or may be affected by releases of
hazardous waste or hazardous constituents from or at the
Facility.
20. RCRA Facility Investigation or RFI shall mean the
investigation and characterization of the source(s) of
contamination and the nature, extent, direction, rate,
movement, and concentration of the source(s) of
contamination and releases of hazardous waste, including
hazardous constituents, that have been or are likely to be
released into the environment from the Facility. [The
activities required for the RFI are detailed in the RFI
Scope of Work included as Attachment [X].]
21. Solid Waste Management Unit or SWMU shall mean any
discernible unit at which solid wastes have been placed at
any time irrespective of whether the unit was intended for
the management of solid or hazardous waste. Such units
include any area at a Facility where solid wastes have been
routinely and systematically released.
22. Scope of Work or SOW shall mean the outline of work
Respondent must use to develop all workplans and reports
required by this Order as set forth in this Order and its
Attachments [specify name(s) and number(s)]. All SOW
Attachments and modifications or amendments thereto, are
Consent Order 4 December 15, 1993
-------
incorporated into this Order and are an enforceable part of
this Order.
23. Stabilization shall mean the goal or philosophy of
controlling or abating immediate threats to human health
and/or the environment from releases and/or preventing or
minimizing the spread of contaminants while long-term
corrective measures alternatives are being evaluated.
24. Submittal shall include any workplan, report, progress
report, or any other written document Respondent is required
by this Order to send to EPA.
25. Violations of this Order shall mean those actions or
omissions, failures or refusals to act by Respondent that
result in a failure to meet the terms and conditions of this
Order or its attachments.
26. Work or Obligation shall mean any activity Respondent must
perform to comply with the requirements of this Order and
its attachments.
27. Workplan shall mean the detailed plans prepared by
Respondent to satisfy the requirements of the corresponding
Scope of Work. The requirements for each workplan are
presented in Section : Work to be Performed and/or the
Attachment(s) [X].
III. STATEMENT OF PURPOSE
[NOTE: EPA's policy is to encourage early stabilization at those facilities where it is
possible. Therefore, most initial orders will cover stabilization only, not final remedy
selection. However, the Model Order serves two purposes. It can be used for imposing
only stabilization or for full, final remedy selection. Thus, the statement of purpose should
tailor the objectives of the Order depending on its purpose.]
In entering into this Order, the mutual objectives of EPA
and [Corporate/individual name] are: [Describe objectives of
Order, e.g., (1) to perform Interim Measures ("IM") at the
Facility to relieve threats to human health and/or the
environment, (2) to perform a RCRA Facility Investigation ("RFI")
to determine fully the nature and extent of any release of
hazardous waste and/or hazardous constituents at or from the
Facility; (3) to perform a Corrective Measures Study ("CMS") to
identify and evaluate alternatives for the corrective measures
necessary to prevent, mitigate, and/or remediate any releases of
hazardous wastes or hazardous constituents at or from the
Facility; (4) to implement the corrective measure or measures
selected by EPA at the Facility; and (5) to perform any other
activities necessary to correct or evaluate actual or potential
threats to human health and/or the environment resulting from the
Consent Order 5 December 15, 1993
-------
release or potential release of hazardous waste or hazardous
constituents at or from the Facility.]
IV. PARTIES BOUND
1. This Order shall apply to and be binding upon EPA,
Respondent and its officers, directors, employees, agents,
successors and assigns, heirs, trustees, receivers, and upon all
persons, including but not limited to contractors and
consultants, acting on behalf of Respondent.
2. No change in ownership or corporate or partnership
status relating to the Facility will in any way alter
Respondent's responsibility under this Order. Any conveyance of
title, easement, or other interest in the Facility, or a portion
of the Facility, shall not affect Respondent's obligations under
this Order. Respondent will be responsible for and liable for
any failure to carry out all activities required of Respondent by
the terms and conditions of the Order, regardless of Respondent's
use of employees, agents, contractors, or consultants to perform
any such tasks.
3. Respondent shall provide a copy of this Order to all
contractors, laboratories, and consultants retained to conduct or
monitor any portion of the work performed pursuant to this Order
within 14 days of the issuance of this Order or the retention of
such person(s), whichever occurs later, and shall condition all
such contracts on compliance with the terms of this Order.
4. Respondent shall give written notice of this Order to
any successor in interest prior to transfer of ownership or
operation of the Facility or a portion thereof and shall notify
EPA in writing within [X] days prior to such transfer.
5. Respondent agrees to undertake all actions required by
the terms and conditions of this Order, including any portions of
this Order incorporated by reference. Respondent waives any
rights to request a hearing on this matter pursuant to §3008(b)
of RCRA and 40 C.F.R. Part 24, and consents to the issuance of
this Order without a hearing pursuant to §3008(b) of RCRA as a
Consent Order issued pursuant to §3008(h) of RCRA.
V. FINDINGS OF FACT
1. Respondent is a person doing business in the State of
[State].
2. Respondent is [a generator of hazardous waste and] an
owner and/or operator of a hazardous waste management facility
located at [location]. Respondent engaged in [treatment, storage,
or disposal] of hazardous waste at the Facility subject to
interim status requirements [40 C.F.R. Part 265] and [cite
appropriate state statute or regulation if the State has been
authorized pursuant to RCRA section 3006.] [Specify type of
operation(s)landfill, incinerator, etc.].
Consent Order 6 December 15, 1993
-------
3. Respondent owned and/or operated the Facility as a
hazardous waste management facility on or after November 19, 1980
(or the date of any statutory or regulatory change rendering the
facility subject to the requirement to obtain a RCRA permit), the
applicable date which renders facilities subject to interim
status requirements or the requirement to have a permit under
§§3004 and 3005 of RCRA.
4. Pursuant to §3010 of RCRA, Respondent notified EPA of
its hazardous waste activity. In its notification dated [date],
Respondent identified itself as a [generator of hazardous waste
and/or an owner/operator of a treatment, storage, and/or disposal
facility for hazardous waste].
5. In its [Name of Facility submission/notification or Part
A permit application] dated [date], Respondent identified itself
as handling the following hazardous wastes at the Facility:
[NOTE: The Order should identify the hazardous waste handled at the Facility, as well as
the hazardous waste management units and solid waste management units. This
information should l\elp to establish a connection between the Respondent's activity and
the release of hazardous waste and/or hazardous constituents. Where possible, specify
waste codes that are contributing directly to the releases documented in the Findings of
Fact. Examples of where this information might be obtained are: a Part A or Part B
Application, Exposure Information Report, Inspection Report, RFA, or PA/SI.]
[Examples of Wastes Handled:
(a) Hazardous wastes exhibiting the characteristics of ignitability, corrosivity, reactivity, or
EP or TC toxicity identified at 40 C.F.R. §§261.20-261.24, (D001-D042);
(b) Hazardous wastes from non-specific sources identified at 40 C.F.R. §261.31,
(F001-F028);
(c) Hazardous wastes from specific sources identified at 40 C.F.R. §261.32, (K001-K136);
(d) Commercial chemical products, manufacturing chemical intermediates,
off-specification commercial chemical products, or manufacturing chemical intermediates
identified at 40 C.F.R. §261.33(e), (P001-P123), or at 40 C.F.R. §261.33(f), (U001-U249).]
6. Respondent's Facility includes:
[NOTE: Describe location and units regulated under RCRA Subtitle C and other solid
waste management units generally. All units at the facility should be identified, even if the
Order only addresses a portion of the Facility. Note lack of liners on land disposal units.
Attach a copy of a facility map from permit application, if available. Focus on and provide
more detail on the unit(s) or area(s) where releases have occurred and which are the
specific subject(s) of this Order. Include material relating to:
Size of Facility
Facility layout - legible map/schematic may be appropriate with groundwater
monitoring wells indicated
Number and type of units and operating status
Specific current and past uses of different units
Consent Order 7 December 15, 1993
-------
Spill areas
Specific wastes received or handled at specific units
Geological conditions (keep brief)
Groundwater flow conditions]
7. Documentation of Release
[NOTE: After having described the Facility, it is necessary to establish and document that
a release of hazardous wastes or hazardous constituents from the Facility into the
environment is occurring or has occurred. If you have identified action levels, you may
wish to reference them to support the finding that ambient concentration levels have
exceeded them. In addition, there needs to be a discussion thai supports the premise of
the Order that the response is necessary to protect human health and/or the environment.]
Sources of release information can be:
Results of an inspection (RFA, CME, CEI)
Respondent submittal of a groundwater assessment report
*
Other data/information submitted by Respondent (e.g., Part B submittal, exposure
information report) or developed by EPA (e.g., sampling analyses, §3007 letters,
results of CERCLA PA/SI, responses to CERCLA §104(e))
Knowledge of disposal into units not designed, constructed, or operated to prevent
releases
Data collected by Respondent pursuant to prior EPA or State enforcement action
[NOTE: Be sure to cite your references properly.]
[Example:
Groundwater monitoring wells have been installed at the Facility. Respondent has
identified wells [number/identification code] as being up-gradient from [describe disposal
unit(s)]. The location of the wells is shown in Figure [X] of Attachment [X]. Respondent
has identified wells [number/identification code] as being down-gradient from [describe
disposal unft(s)]. Samples of groundwater from these wells have been analyzed to
determine contamination of groundwater. Samples were collected by EPA personnel from
groundwater monitoring wells #8, #16, #24, #32. The results were as follows:
Well#
8
16 .
24
32
Sampling Date
August 14, 1985
August 17, 1985
September 9, 1985
September 9, 1985
Organics
Phenol
Phenol
Phenol
Phenol
Concentration
4,000 ppm
2,000 ppm
3,200 ppm
1,000 ppm
[NOTE: The chart should be concise, although multiple charts can be used if sufficient
information is available. Only applicable data needed to support the Order should be
included. Information such as chain of custody sheets, log analysis reports, and QA/QC
reports should not be attached to the Order or referenced. However, these forms should be
identified and maintained in the Administrative Record.
Consent Order
8
December 15, 1993
-------
A facility map showing the location of wells, known spills, SWMUs, etc., will clarify
allegations considerably. The map needs to be clear and appropriately dated. A legend to
the map should make clear that in the event of a discrepancy, the definition of Facility will
prevail over the description given by the map. Data other than groundwater data (e.g., soil
and surface water) should be used If available. Such data should provide information
comparable to that provided in the above table, i.e., medium sampled, location and dates
of sampling, the substances found, and their concentrations. Further, Respondent's
results can be used in lieu of or in addition to EPA's if they are deemed reliable.
Circumstantial evidence may also be used to provide additional support for the finding that
there is or has been a release. Such evidence includes historical treatment, storage, or
disposal practices; the nature and design of storage or disposal areas; and/or company
admissions. Findings ordinarily will be more convincing if they are based on a
combination of circumstantial and direct evidence.]
8. Hazardous wastes or hazardous constituents may further
migrate from the Facility into the environment in the following
pathways:
[NOTE: Often, little hydrogeologic data is available prior to the RFI/CMS study. If this
information is available, you may want to link the release of hazardous wastes and/or
hazardous constituents to human and/or environmental concerns.lt is important to define
migration pathways, noting and distinguishing between actual and potential receptors -
human, wildlife, vegetation, etc. Wherever possible, cite documents in the Administrative
Record.]
9. The hazardous wastes or hazardous constituents
identified in paragraph seven above (may) pose(s) a threat to
human health or the environment. [Describe carcinogenic/toxic
properties.]
[NOTE: The Order is further strengthened by, and should include, a description of the
toxic, carcinogenic, and hazardous properties of the contaminants. The Order should
include health and environmental effects documentation and identify sources of
information for the data described above, if available. An endangerment assessment is not
needed to support the issuance of this Order.]
10. The Facility is located [describe residences, aquifers,
domestic water supplies, surface water bodies (to include
rivers/lakes and type of use), wells (include number and type of
use), and fragile environment.]
11. Releases from the Facility (have/may/may have)
migrate(d) toward [describe present and future potential and
actual receptors].
VI. CONCLUSIONS OF LAW AND DETERMINATIONS
Based on the foregoing findings of fact and after
consideration of the Administrative Record, the Regional
Administrator [or Division Director, if delegated] of EPA Region
[Number], has made the following conclusions of law and
determinations:
Consent Order 9 December 15, 1993
-------
1. Respondent is a "person" within the meaning of Section
1004(15) of RCRA.
2. Respondent is (was) the owner or operator of a Facility
that has operated, is operating, should be, or should have been
operating under interim status subject to §3005(e) of RCRA.
3. Certain wastes and constituents found at the Facility
are hazardous wastes and/or hazardous constituents pursuant to
§§1004(5), 3001 of'RCRA; 40 C.F.R. Part 261; and, Subpart S,
§264.501, 55 Fed. Reg. 30874, July 27, 1990.
4. There is or has been a release of hazardous wastes or
hazardous constituents into the environment from the Facility.
5. The actions required by this Order are necessary to
protect human health and/or the environment.
VII. PROJECT COORDINATOR
1. Within [X] days of the effective date of this Order, EPA
and Respondent shall each designate a Project Coordinator and
shall notify each other in writing of the Project Coordinator it
has selected. Each Project Coordinator shall be responsible for
overseeing the implementation of this Order and for designating a
person to act in his/her absence. The EPA Project Coordinator
will be EPA's designated representative for the Facility. To
the maximum extent practicable, all communications between
Respondent and EPA, and all documents, reports, approvals, and
other correspondence concerning the activities performed pursuant
to this Order shall be directed through the Project Coordinators.
2. The parties may change their Project Coordinator but
agree to provide at least [X] days written notice prior to
changing a Project Coordinator.
3. The absence of the EPA Project Coordinator from the
Facility shall not be cause for the stoppage of work.
VIII. WORK TO BE PERFORMED
[NOTE: If this Order imposes only interim measures/stabilization upon Respondent, use
only the language in Subsection A of Section VIII. If in addition to interim
measures/stabilization this Order will address a RCRA Facility Investigation, Corrective
Measures Study, and Corrective Measures Implementation, you should use Subsections A,
B, C, and D of this Section.]
Guidance
The purpose of the 'Work to be Performed' section of the Order is to provide the
requirements and objectives for Interim Measures, RCRA Facility Investigation, Corrective
Measures Study, and/or Cor/ective Measures Implementation. Facility-specific scope(s) of work
should be referenced in and appended to the Order. The scope(s) of work should clearly describe
Consent Order 10 December 15, 1993
-------
the tasks Respondent must implement. The Order should contain a detailed compliance schedule
with milestones so disputes are minimized.
See the "RCRA Corrective Action Interim Measures,' Interim Final, EPA/530/SW-88/029,
OSWER Directive 9902.4, June 10,1987; and "RCRA Corrective Action Plan (CAP)/ Interim Final,
EPA/530/SW-88/028, OSWER Directive 9902.3, June 1988; and any updated versions of these
guidance documents or other relevant EPA guidance for detailed guidance and model language
for developing these scope(s) of work. The CAP scopes of work should not be considered
'boilerplate." The scopes of.work in the CAP are models and should be modified based on facility
specific situations.
EPA encourages the use of innovative technologies for interim measures and subsequent
corrective measures. See "Furthering the Use of Innovative Treatment Technologies in OSWER
Programs," OSWER Directive 9380.0-17, June 10,1991. The use of these technologies may require
treatability and pilot studies which should be described in applicable workplans.
EPA guidance that is relevant to the performance of the activities specified in this Section,
should be identified by name, number or author, and date in Attachment [X] to the Order.
Pursuant to §3008(h) of RCRA, Respondent agrees to and is
hereby ordered to perform the acts specified in this section, in
the manner and by the dates specified herein. All work
undertaken pursuant to this Order shall be performed in a manner
consistent with, at a minimum: the attached Scope[s] of Work; the
EPA-approved [Interim Measures Workplan, RCRA Facility
Investigation Workplan, Corrective Measures Study Workplan,
Corrective Measures Implementation Workplan,] and all other
Workplans; RCRA and other applicable Federal laws and their
implementing regulations; and applicable EPA guidance documents.
Guidance may include, but is not limited to, documents listed in
Attachment [X] to ^his Order, which are incorporated by reference
as if fully set forth herein.
A. INTERIM MEASURES (IM) / STABILIZATION
1. Respondent shall evaluate available data and assess the
need for interim measures, in addition to those specifically
required by this Order. Interim measures shall be used whenever
possible to achieve the initial goal of stabilization.
2. Respondent shall submit a Current Conditions Report to
EPA in accordance with Section : Work to be Performed, RCRA
Facility Investigation. The Current Conditions Report shall
contain an assessment of previously implemented interim measures.
The assessment must evaluate other Interim Measures alternatives
that could be implemented at-the Facility and identify any new
data needed for making decisions on stabilization. EPA will
review the Current Conditions Report and notify Respondent in
writing of EPA's approval/disapproval or modification in
accordance with Section : Agency Approvals/Proposed
Contractor/Additional Work. EPA shall determine if additional
data or information shall be collected. EPA will review
Respondent's data and assessment and other information available
to EPA, and if appropriate will select (an) interim measure(s)
which Respondent shall perform. If deemed appropriate by EPA,
Consent Order 11 December 15, 1993
-------
such selection may be deferred until additional data is
collected.
#a. [Optional: include if IM workplan is required] Within [X] days of the effective date of
this Order, Respondent shall submit to EPA a workplan for the implementation of interim measures
["IM Workplan*]. The IM Workplan is subject to approval by EPA and shall provide for the
performance of all interim measures necessary to achieve stabilization at the facility in accordance
with the Interim Measures Scope of Work appended as Attachment [X].
#b. [Optional: include if specific interim measures are required in the workplan] The
following interim measures shall be included in the IM Workplan: (e.g., place a temporary cover
(specify material) over the containers in the areas (identify areas) to prevent precipitation
infiltration, control water running off the container area, prevent air emissions and isolate and
contain contaminated wastes and volatiles. Respondent shall inspect the cover on a (specify
period) basis, and shall maintain the cover until otherwise notified by EPA.)
3. In the event Respondent identifies an immediate or
potential threat to human health and/or the environment,
discovers new releases of hazardous waste and/or hazardous
constituents, or discovers new solid waste management units not
previously identified, Respondent shall notify the EPA Project
Coordinator, orally within 48 hours of discovery and notify EPA
in writing within [X] days of such discovery summarizing the
immediacy and magnitude of the potential threat(s) to human
health and/or the environment. Upon written request of EPA,
Respondent shall submit to EPA an IM Workplan in accordance with
the IM Scope of Work, appended as Attachment [X]. If EPA
determines that immediate action is required, the EPA Project
Coordinator may orally authorize Respondent to act prior to EPA's
receipt of the IM Workplan.
4. If EPA identifies an immediate or potential threat to
human health and/or the environment, discovers new releases of
hazardous waste and/or hazardous constituents, or discovers new
solid waste management units not previously identified, EPA will
notify Respondent in writing. Within [X] days of receiving EPA's
written notification, Respondent shall submit to EPA an IM
Workplan in accordance with the IM Scope of Work, that identifies
interim measures which will mitigate the threat. If EPA
determines that immediate action is required, the EPA Project
Coordinator may orally require Respondent to act prior to
Respondent's receipt of EPA's written notification.
5. All IM Workplans shall ensure that the interim measures
are designed to mitigate immediate or potential threat(s) to
human health and/or the environment, and should be consistent
with the objectives of, and contribute to the performance of any
long-term remedy which may be required at the Facility.
6. [Note: The Regions should determine which sections shall be required for submittal
by Respondent.] In accordance with Attachment [X] herein, the IM
Workplan shall include the following sections:
Interim Measures Objectives
Consent Order 12 December 15, 1993
-------
Public Involvement Plan
Data Collection Quality Assurance
Data Management
Design Plans and Specifications
Operation and Maintenance
Project Schedule
Interim Measure Construction Quality Assurance
Reporting-Requirements.
7. Concurrent with the submission of an IM Workplan,
Respondent shall submit to EPA a Health and Safety Plan in
accordance with Attachment [X] of this Order.
B. RCRA FACILITY INVESTIGATION (RFI)
Guidance
The model RFI Scope of Work provided in the RCRA Corrective Action Plan should be
modified based on Facility-specific conditions to foster timely, concise, and accurate submissions
by Respondent.
Regions have the discretion to require that the RFI Workplan, Current Conditions Report,
and the Preliminary Evaluation of Corrective Measure Technologies by Laboratory or Bench-Scale
Studies be submitted separately or together.
Current Conditions Reports should supply EPA with information regarding the Facility
background, nature and extent of contamination as currently defined, and the status of any interim
measures implementation. In addition, the report should include an assessment of the
applicability of any interim measures to stabilize any contaminants at the Facility.
The RFI and Corrective Measures Study (CMS) should not be viewed as totally distinct
processes. Information from the RFI will form the bulk of the data and analyses used to support
the CMS. Although it may not be possible to identify all data needed to support the CMS before
or during the RFI, the EPA Project Coordinator should attempt to anticipate (and encourage
Respondent to anticipate) CMS data needs.
1. Within [X] days of the effective date of this Order,
Respondent shall submit to EPA a workplan for a RCRA Facility
Investigation ("RFI Workplan") [a Current Conditions Report, and a Preliminary
Evaluation of Corrective Measure Technologies by Laboratory or Bench-Scale Studies]. The
RFI Workplan, [Current Conditions Report, and the Preliminary Evaluation of Corrective
Measure Technologies by Laboratory or Bench-Scale Studies] is [are] subject to
approval by EPA in accordance with Section : Agency
Approvals/Proposed Contractor/Additional Work and shall be
developed in a manner consistent with the RFI Scope of Work
contained in Attachment [X].
[NOTE: Regions may either include within the body of the Order those technical
requirements in the next paragraph that are applicable along with a more detailed
discussion in the attached scopes of work, or include the applicable technical components
in the attached scopes of work only.]
#. The RFI Workplan shall document the procedures and provide a specific schedule that
the Respondent shall use to conduct those investigations necessary to:
Consent Order 13 December 15, 1993
-------
Characterize the environmental setting
Characterize sources and nature of hazardous wastes and/or constituents
Identify and characterize any contaminant plumes (e.g., LNAPL, DNAPL, dissolved)
Characterize concentration, rate, and extent of contamination released from the
facility
Identify any additional SWMUs [AOCs]
Collect data necessary to conduct a Risk Assessment
2. The RFI Workplan shall detail the methodology Respondent
shall use to: (1) gather data needed to make decisions on
stabilization during the early phase of the RFI; (2) identify and
characterize all sources of contamination; (3) define the degree
and extent of contamination; (4) characterize the potential
pathways of contaminant migration; (5) identify actual or
potential human and/or ecological receptors; and (6) support the
development of alternatives from which a corrective measure will
be selected by EPA. A specific schedule for implementation of
all activities shall be included in the RFI Workplan.
3. [Note: The Regions should determine which sections shall be required for subm'rttal
by the Respondent.] In accordance with the provisions of Attachment
[X] herein, the RFI Workplan shall include the following
sections:
Project Management
Data Collection Quality Assurance
Data Management
Public Involvement Plan
4. Concurrent with the submission of an RFI Workplan,
Respondent shall submit to EPA a Health and Safety Plan in
accordance with Attachment [X] of this Order. If workplans for
both an IM and RFI are required by this Order, Respondent may
submit a single Health and Safety Plan that addresses the
combined IM and RFI activities.
*
5. Respondent shall submit a RFI report to EPA for approval
in accordance with the EPA approved RFI Workplan schedule. EPA
will review the RFI report and notify Respondent in writing of
EPA's approval/disapproval, or modification in accordance with
Section : Agency Approvals/Proposed Contractor/Additional
Work.
[NOTE: The following paragraph may be appropriate for complex corrective actions where
there is an anticipated need for expanded public participation (e.g., organized public opposition to
the Facility or the remediation plan). EPA should tailor this language to meet the specific needs of
the concerned citizens. Other requirements besides the example in the paragraph below may be
imposed on Respondent.]
#. The Public Involvement Plan shall, at a minimum, include (e.g., an assessment of
community concerns, development of a fact sheet, and development of a mailing list.)
Guidance
Consent Order 14 December 15, 1993
-------
EPA may require Respondent to keep the public informed of the corrective action
activities. All Public Involvement Plans prepared by Respondent should be submitted to EPA for
comment and approval prior to use. It is strongly recommended that EPA oversee Respondent's
public involvement activities. Respondents must never appear to represent or appear to speak for
EPA before the public, other government officials, or the media.
Activities that may be required of the Respondent include:
Conducting an open house or informal meeting in a public location where people
can talk to Agency officials and Respondent on a one-to-one basis.
Preparing fact sheets summarizing current and/or proposed corrective action
activities. All fact sheets should be reviewed by EPA prior to public distribution.
Conducting scheduled site tours of the facility for media representatives, local
officials, and citizens. It is recommended that an EPA representative accompany
each site tour.
Providing information in a foreign language to a predominantly non-English-
speaking community.
Maintaining an easily accessible repository (such as a town hall or public library) of
information on the corrective action program, including the Order, approved
workplan, and reports.
C. CORRECTIVE MEASURES STUDY (CMS)
1. Within [X] days of EPA's approval of the final RFI
Report [or Respondent's receipt of a written request from EPA],
Respondent shall submit a CMS Workplan to EPA in accordance with
Section : Agency Approvals/Proposed Contractor/Additional
Work. The CMS Workplan is subject to approval by EPA and shall
be developed in a manner consistent with the CMS Scope of Work
contained in Attachment [X] to this Order.
[NOTE: The following two paragraphs are optional. With paragraph "a" Regions may either
include within the body of the Order those technical requirements in the next paragraph
that are applicable along with a more detailed discussion in the attached scopes of work,
or include the applicable technical components in the attached scopes of work only.]
#a. The CMS Workplan shall provide, at a minimum, the following information:
A description of the general approach to the CMS and potential remedies;
A statement of the overall objectives of the study;
The specific plans for evaluating remedies to ensure compliance with Media
Cleanup Standards(s) (MCS(s)) at the point(s) of compliance;
The proposed format for the presentation of information; and
A justification for each corrective measure that Respondent proposes to study to
achieve the MCS(s).
#b. Respondent shall prepare treatability studies for all potential corrective measures
that involve treatment except where Respondent can demonstrate to EPA's satisfaction that they
are not needed. The CMS Workplan shall include, at a minimum, a summary of the proposed
treatability study and conceptual design, and a schedule for submitting the treatability study
workplan or Respondent's justification for not proposing a treatability study.
Consent Order 15 December 15, 1993
-------
2. The CMS shall detail the methodology for developing and
evaluating potential corrective measures to remedy any
contamination at the facility. The CMS shall identify the
potential corrective measures, including any innovative
technologies, that may be used for the containment, treatment,
and/or disposal of contamination.
3. Respondent shall submit a CMS Report to EPA for approval
in accordance with the EPA approved CMS Workplan schedule. EPA
will review the CMS Report and notify Respondent in writing of
EPA's approval, disapproval or modification in accordance with
Section : Agency Approvals/Proposed Contractor/Additional
Work.
[NOTE: The following paragraph is optional. Regions can either include this language in
the body of the Order and in the attached scopes of work, or include these technical
requirements only in the attached scopes of work.]
#. The CMS Report shall contain, at a minimum, the following information for each
corrective measure studied:
An evaluation of any treatability studies performed
An evaluation of the overall protectiveness of human health and of the environment
Ability to attain the MCS(s) at the point(s) of compliance
Ability to control the source(s) of release(s)
An estimate and analysis of quantity, volume, and/or toxicity of the waste
generated, including, but not limited to, contaminated soil, sludge, and
groundwater
Methods to minimize the volume, toxicity, and/or mobility of waste to be generated
An assessment of how institutional and legal requirements including federal, State,
or local environmental or public health standards, regulations, and/or ordinances
will affect the design, operation, and timing of each corrective action alternative
and how those legal requirements will be met
An assessment of short-term and of long-term reliability and effectiveness,
including, but not limited to, the methodology used to estimate the short-term and
long-term reduction of toxicity, mobility, or volume of waste and the resulting
estimate
An evaluation of ease of implementation
An estimate of the cost, including capital and annual operation and maintenance
costs
A recommendation as to which corrective measure(s), in Respondent's opinion, is
[are] the most appropriate, and the rationale for such recommendation
4. In accordance with Section : Public Participation, EPA
will provide the public with an opportunity to submit written
Consent Order 16 December 15, 1993
-------
and/or oral comments and an opportunity for a public meeting
regarding EPA's proposed cleanup standards and remedy for the
facility.
D. CORRECTIVE MEASURES IMPLEMENTATION (CMI)
[NOTE: If CMI is not covered in this Order, you should use the language in paragraph 1a.
If the CMI is covered in this Order, paragraphs 1b, 2, 3, 4 and 5 should be used.]
la. After selection by EPA of the corrective measure(s),
EPA may provide Respondent with an opportunity to negotiate an
Administrative Order on Consent for implementation of such
corrective measure(s). Nothing in this provision shall limit
EPA's authority to require that the selected corrective measures
be implemented or to take any other appropriate action under
RCRA, CERCLA, or any other legal authority, -including issuance of
a Unilateral Administrative Order or the filing of a civil action
seeking a judicial order directing Respondent to implement the
selected corrective measure(s).
Ib. " Within [X] days of Respondent's receipt of notification
of EPA's selection of the corrective measure(s), Respondent shall
submit to EPA a Corrective Measures Implementation Workplan ["CMI
Workplan"]. The CMI Workplan is subject to approval by EPA *in
accordance with Section : Agency Approvals/Proposed
Contractor/Additional Work and shall be developed in a manner
consistent with the CMI Scope of Work incorporated herein and
contained in Attachment [X].
2 . [Note: The Regions should determine which sections shall be required for submittal
by the Respondent.] The CMI Workplan shall be designed to facilitate
the design, construction, operation, maintenance, and monitoring
of corrective measures at the facility. In accordance with
Attachment [X] herein, the CMI Workplan shall also include the
following sections:
Program Management
* Public Involvement Plan
Design Plans and Specifications
Operation and Maintenance
Cost Estimate
Project Schedule
Construction Quality Assurance
Data Collection Quality Assurance
Data Management.
3. Concurrent with the submission of a CMI Workplan,
Respondent shall submit to EPA a CMI Health and Safety Plan in
accordance with Attachment [X].
4. EPA will review the CMI Workplan and notify Respondent
in writing of EPA's approval/disapproval, or modification in
accordance with Section : Agency Approvals/Proposed
Contractor/Additional Work.
Consent Order 17 December 15, 1993
-------
5. Respondent shall submit a CMI report to EPA in
accordance with the EPA approved CMI workplan schedule. EPA will
review the CMI report and notify Respondent of EPA's approval
disapproval or modification in accordance with Section :
Agency Approvals/Proposed Contractor/Additional Work.
E. WASTE MINIMIZATION PLAN (OPTIONAL)
Guidance
EPA advocates the use of waste minimization. However, any provision for waste
minimization should be included as an addition to the required corrective action at the Facility.
Inclusion of waste minimization requirements in a §3008(h) order does not allow for a reduction in
the scope of a facility's corrective action investigation and remediation activities nor a mitigation
of any penalty. Information on the use of waste minimization can be found in the Office of
Enforcement's "Interim Policy on the Inclusion of Pollution Prevention and Recycling Provisions in
Enforcement Settlements," James M. Strock, February 25,1991.
Moreover, it is important to include language requiring the Respondent to assess and
revise the effectiveness of the Plan any time there is a process change in the Respondent's
operation.
1. Within [X] days of the effective date of this Order, Respondent shall submit to EPA for
review and comment a plan to minimize the generation of hazardous waste at the Facility (the
"Waste Minimization Plan" or "Plan"). This Plan shall be developed consistent with the scope of
work for a Waste Minimization Plan contained in Attachment [X] and shall describe procedures to
minimize the volume, mobility and/or toxicity of hazardous waste generated at the facility.
2. Within [X] days after receipt of EPA comments on the draft Waste Minimization Plan, to
the extent practicable Respondent shall submit to EPA a revised Plan addressing EPA's
comments. Concurrent with such submission, Respondent shall implement the Waste
Minimization Plan, as revised, in accordance with the requirements and schedule contained
therein.
3. Respondent shall review, assess the effectiveness of, and revise the Waste Minimization
Plan, to the extent reasonable and appropriate, on an annual basis in order to further reduce the
volume, mobility, and/or toxicity of the hazardous waste generated at the Facility. During the
effective life of this Order, Respondent shall submit an annual Waste Minimization Report to EPA.
Such Waste Minimization Report shall be prepared and submitted to EPA by March 1 of each year
and shall include: an assessment of the effectiveness of Respondent's existing Plan; a description
of the changes in volume, mobility, and toxicity of waste actually achieved during the year in
comparison to previous years; a description of areas where potential improvements in waste
minimization at the Facility may be achieved; a copy of all revisions to the Waste Minimization
Plan; an explanation and description of how such revision(s) have enabled the Respondent to
further minimize the volume, mobility, and/or toxicity of the hazardous waste generated at the
Facility; and any anticipated revisions to the Plan along with the projected changes in volume,
mobility, and/or toxicity of the waste generated as a result of implementing such revision(s).
IX. PUBLIC PARTICIPATION AND COMMENT IN CORRECTIVE
MEASURE(S) SELECTION
1. EPA will provide the public with an opportunity to
review and comment on the final draft of the Corrective Measures
Study Report and a description of EPA's proposed corrective
Consent Order 18 December 15, 1993
-------
measure(s), including EPA's justification for proposing such
corrective measure(s) (the "Statement of Basis").
2. Following the public comment period, EPA may approve the
Corrective Measures Study Report and select a final corrective
measure(s) or require Respondent to revise the Report and/or
perform additional^corrective measures studies.
3. EPA will notify Respondent of the final corrective
measure selected by EPA in the Final Decision and Response to
Comments ("RTC"). The notification will include EPA's reasons
for selecting the corrective measure.
Guidance
After the CMS has been performed by the Respondent and EPA has proposed in the
Statement of Basis ("SB") that a particular corrective measure(s) be implemented, it is EPA's policy
to request public comment on the Administrative Record and the proposed corrective measure.
Changes to the proposed corrective measure(s) may be made after consideration of public
comment. EPA may also require that Respondent perform additional corrective measures studies.
If the public is interested, a public meeting may be held. After consideration of the public's
comments on the proposed corrective measure, the Agency develops the Final Decision and
Response to Comments (RTC) to document the selected corrective measure, EPA's justification
for such selection, and EPA's response to the public's comments. Additional public involvement
activities may be advisable, based on facility specific circumstances. See "Guidance for Public
Involvement In RCRA Section 3008(h) Actions," OSWER Directive 9901.3, May 5, 1987, and "RCRA
Corrective Action Decision Documents: The Statement of Basis and Response to Comments,"
OSWER Directive 9902.6, April 1991.
This section of the Order retains EPA's commitment to provide the public with the
opportunity to review and comment on EPA's proposed selection of a corrective measure and the
Respondent's duty to undertake additional corrective measures studies should EPA determine it
necessary. A time frame of 30 to 45 days is recommended for public comment and review of a
proposed corrective measure. Regions are not required to specify the time period for the public
review and comment in the agreements negotiated with the Respondent. If Respondent is
concerned that it will not have an opportunity to comment on the proposed corrective measure,
negotiators may point out that, at a minimum, as a member of the public, Respondent will have an
opportunity to review and comment on EPA's proposed corrective measure.
Generally, a second corrective action order is negotiated and issued to implement the
selected corrective measure.
X. AGENCY APPROVALS/PROPOSED CONTRACTOR/
ADDITIONAL WORK
[NOTE: Paragraphs Hhrough 6 cover the submission by Respondent and approval by
EPA of workplans and reports, and the Agency's right to approve or disapprove of work
that is performed. Regions may wish to ask for data, reports, and maps in hard copy and
on diskette.]
A. EPA APPROVALS
*
1. EPA will provide Respondent with its written approval,
approval with conditions and/or modifications, disapproval, or
Consent Order 19 December 15, 1993
-------
disapproval with comments, for any workplan, report (except
progress reports), specification, or schedule submitted pursuant
to or required by this Order. EPA will provide a statement of
reasons for any approval with conditions and/or modifications,
disapproval or disapproval with comments.
2. Respondent shall revise any workplan, report,
specification, or schedule in accordance with EPA's written
comments. Respondent shall submit to EPA any revised submittals
in accordance with the due date specified by EPA. Revised
submittals are subject to EPA approval, approval with conditions
and/or modifications, disapproval, or disapproval with comments.
3. Upon receipt of EPA's written approval, Respondent shall
commence work and implement any approved workplan in accordance
with the schedule and provisions contained therein.
4. Any EPA approved report, workplan, specification, or
schedule shall be deemed incorporated into this Order. Prior to
this written approval, no workplan, report, specification, or
schedule shall be construed as approved and final. Oral advice,
suggestions, or comments given by EPA representatives will not
constitute an official approval, nor shall any oral approval or
oral assurance of approval be considered binding.
B. PROPOSED CONTRACTOR/CONSULTANT
5. All work performed pursuant to this Order shall be under
the direction and supervision of a professional engineer,
hydrologist, geologist, or environmental scientist, with
expertise in hazardous waste cleanup. Respondent's contractor or
consultant shall have the technical expertise sufficient to
adequately perform.all aspects of the work for which it is
responsible. Within 14 days of the effective date of this
Order, Respondent shall notify the EPA Project Coordinator in
writing of the name, title, and qualifications of the engineer,
hydrologist, geologist, or environmental scientist and of any
contractors or consultants and their personnel to be used in
carrying out the terms of this Order. Respondent shall identify
whether any contractor is on the List of Parties Excluded from
Federal Procurement or Non-Procurement Programs. EPA reserves
the right to disapprove Respondent's contractor and/or consultant
at any time during the period that this Order is effective. If
EPA disapproves a contractor or consultant, then Respondent must,
within [X].days of receipt from EPA of written notice of
disapproval/ notify EPA, in writing, of the name, title, and
qualifications of any replacement. EPA's disapproval shall not
be subject to review under Section : Dispute Resolution.
[NOTE: The list referred to in the paragraph above is updated monthly and is available
from the Superintendent of Documents, U.S. General Services Administration. Call 202-
783-3238 or to access the list electronically call Natalie Jones at 202-501-3566 or Priscilla
Owens at 202-501-4740. Therefore, Respondent should make sure they consult the current
list.]
Consent Order 20 December 15, 1993
-------
C. ADDITIONAL WORK
[NOTE: Under certain circumstances, new findings may indicate that additional work must
be done to protect human health and/or the environment.]
6. EPA may determine or Respondent may propose that certain
tasks, including investigatory work, engineering evaluation, or
procedure/methodology modifications, are necessary in addition to
or in lieu of the tasks included in any EPA-apprpved workplan,
when such additional work is necessary to meet the purposes set
forth in Section : Statement of Purpose. If EPA determines
that Respondent shall perform additional work, EPA will notify
Respondent in writing and specify the basis for its determination
that the additional work is necessary. Within [X] days after the
receipt of such determination, Respondent shall have the
opportunity to meet or confer with EPA to discuss the additional
work. If required by EPA, Respondent shall submit for EPA
approval a workplan for the additional work. EPA will specify
the contents of such workplan. Such workplan shall be submitted
within [X] days of receipt of EPA's determination that additional
work is necessary, or according to an alternative schedule
established by EPA. Upon approval of a workplan by EPA,
Respondent shall implement it in accordance with the schedule and
provisions contained therein.
XI. QUALITY ASSURANCE
1. Respondent shall follow EPA guidance for sampling and
analysis. Workplans shall contain quality assurance/quality
control ("QA/QC") and chain of custody procedures for all
sampling, monitoring, and analytical activities. Any deviations
from the QA/QC and chain of custody procedures in approved
workplans must be approved by EPA prior to implementation; must
be documented, including reasons for the deviations; and must be
reported in the applicable report (e.g., RFI).
2. The name(s), addresses, and telephone numbers of the
analytical laboratories Respondent proposes to use must be
specified in the applicable workplan(s).
3. All workplans required under this Order shall include
data quality objectives for each data collection activity to
ensure that data of known and appropriate quality are obtained
and that data are sufficient to support their intended use(s).
4. Respondent shall monitor to ensure that high quality
data is obtained by its consultant or contract laboratories.
Respondent shall ensure that laboratories used by Respondent for
analysis perform such analysis according to the latest approved
edition of "Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods" (SW-846 Third Edition as amended by
Update One, July 1992)," or other methods deemed satisfactory to
Consent Order 21 December 15, 1993
-------
EPA. If methods other than EPA methods are to be used,
Respondent shall specify all such protocols in the applicable
workplan (e.g., RFI). EPA may reject any data that does not meet
the requirements of the approved workplan or EPA analytical
methods and may require resampling and additional analysis.
5. Respondent shall ensure that laboratories it uses for
analyses participate in a QA/QC program equivalent to that which
is followed by EPA. EPA may conduct a performance and QA/QC
audit of the laboratories chosen by Respondent before, during, or
after sample analyses. Upon request by EPA, Respondent shall
have its laboratory perform analyses of samples provided by EPA
to demonstrate laboratory performance. If the audit reveals
deficiencies in a laboratory's performance or QA/QC, resampling
and additional analysis may be required.
XII. SAMPLING AND DATA/DOCUMENT AVAILABILITY
[NOTE: Facility-specific sampling and analysis requirements must be included in the
Order.]
1. Respondent shall submit to EPA upon request the results
of all sampling and/or tests or other data generated by
divisions, agents, consultants, or contractors pursuant to this
Order.
2. Notwithstanding any other provisions of this Order, the
United States retains all of its information gathering and
inspection authorities and rights, including the right to bring
enforcement actions related thereto, under RCRA, CERCLA, and any
other applicable statutes or regulations.
3. Respondent shall notify EPA in writing at least [X] days
prior to beginning each separate phase of field work approved
under any workplan required by this Order. If Respondent
believes it must commence emergency field activities without
delay, Respondent may seek emergency telephone authorization from
the EPA Project Coordinator or, if the EPA Project Coordinator is
unavailable, his/her Section Chief, to commence such activities
immediately. At the request of EPA, Respondent shall provide or
allow EPA or its authorized representative to take split or
duplicate samples of all samples collected by Respondent pursuant
to this Order. Similarly, at the request of Respondent, EPA
shall allow Respondent or its authorized representative(s) to
take split-or-duplicate-samples of all-samples collected by EPA
under this Order.
4. Respondent may assert a business confidentiality claim
covering all or part of any information submitted to EPA pursuant
to this Order. Any assertion of confidentiality must be
accompanied by information that satisfies the items listed in 40
C.F.R. §2.204(e)(4) or such claim shall be deemed waived.
Information determined by EPA to be confidential shall be
disclosed only to the extent permitted by 40 C.F.R. Part 2. If
Consent Order 22 December 15, 1993
-------
no such confidentiality claim.accompanies the information when it
is submitted to EPA, the information may be made available to the
public by EPA without further notice to Respondent. Respondent
agrees not to assert any confidentiality claim with regard to any
physical or analytical data.
XIII. ACCESS
[NOTE: Provisions requiring the Respondent to give EPA and its designated
representatives access to the facility and to relevant records should be included in the
Order. Such provisions should also set forth, as deemed necessary, the Respondent's
responsibilities with respect to gaining access to third party property. Documentation of
efforts to obtain access to any properties should be included as a task in the workplan if
off-site activities are necessary for completion of any tasks required pursuant to the
Order.]
1. EPA, its contractors, employees, and/or any duly
designated EPA representatives are authorized to enter and freely
move about the Facility pursuant to this Order for the purposes
of, inter alia; interviewing Facility personnel and contractors;
inspecting records, operating logs, and contracts related to the
facility; reviewing the progress of Respondent in carrying out
the terms of this Order; conducting such tests, sampling, or
monitoring as EPA deems necessary; using a camera, sound
recording, or other documentary type equipment; and verifying the
reports and data submitted to EPA by Respondent. Respondent
agrees to provide EPA and its representatives access at all
reasonable times to the Facility and subject to paragraph 2
below, to any other property to which access is required for
implementation of this Order. Respondent shall permit such
persons to inspect and copy all records, files, photographs,
documents, including all sampling and monitoring data, that
pertain to work undertaken pursuant to this Order and that are
within the possession or under the control of Respondent or its
contractors or consultants.
2. To the extent that work being performed pursuant to this
Order must be done beyond the Facility property boundary,
Respondent shall use its best efforts to obtain access agreements
necessary to complete work required by this Order from the
present owner(s) of such property within [30] days of the date
that the need for access becomes known to Respondent. Best
efforts as used in this paragraph shall include, at a minimum, a
certified letter from Respondent to the present owner(s) of such
property requesting access agreement(s) to permit Respondent and
its authorized representatives to access such property, and the
payment of reasonable compensation in consideration of granting
access. Any such access agreement shall provide for access by
EPA and its representatives. Respondent shall insure that EPA's
Project Coordinator has a copy of any access agreement(s). In
the event that agreements for access are not obtained within [30]
days of approval of any workplan for which access is required, or
of the date that the need for access became known to Respondent,
Respondent shall notify EPA in writing within [14] days
thereafter of both the efforts undertaken to obtain access and
Consent Order 23 December 15, 1993
-------
the failure to obtain access agreements. EPA may, at its
discretion, assist Respondent in obtaining access. In the event
EPA obtains access, Respondent shall undertake EPA-approved work
on such property.
3. The Respondent agrees to indemnify the United States as
provided in Section : Indemnification, for any and all claims
arising from activities on such property.
4. Nothing in this section limits or otherwise affects
EPA's right of access and entry pursuant to applicable law,
including RCRA and CERCLA.
5. Nothing in this section shall be construed to limit or
otherwise affect Respondent's liability and obligation to perform
corrective action including corrective action beyond the facility
boundary, notwithstanding the lack of access.
XIV. RECORD PRESERVATION
1. Respondent shall retain, during the pendency of this
Order and for a minimum of 6 years after its termination, all
data, records, and documents now in its possession or control or
which come into its possession or control which relate in any way
to this Order or to hazardous waste management and/or disposal at
the facility. Respondent shall notify EPA in writing 90 days
prior to the destruction of any such records, and shall provide
EPA with the opportunity to take possession of any such records.
Such written notification shall reference the effective date,
caption, and docket number of this Order and shall be addressed
to:
[Name], Director
Waste Management Division
US EPA, Region [Number]
Address
2. Respondent further agrees that within 30 days of
retaining or employing any agent, consultant, or contractor for
the purpose of carrying out the terms of this Order, Respondent
will enter into an agreement with any such agents, consultants,
or contractors whereby such agents, consultants, and/or
contractors will be required to provide Respondent a copy of all
documents produced pursuant to this Order.
*
3. All documents pertaining to-this Order shall be stored
by the Respondent in a centralized location at the Facility to
afford ease of access by EPA or its representatives.
XV. REPORTING AND DOCUMENT CERTIFICATION
1. Beginning with the first full month following the
effective date of this Order, and throughout the period that this
Consent Order 24 December 15, 1993
-------
Order is effective, Respondent shall provide EPA with [specify
frequency, i.e., monthly, bi-monthly or quarterly] progress
reports. Progress reports are due [specify day when submittals
are due]. The progress reports shall conform to requirements in
the relevant scope of work contained in Attachment [X]. EPA may
adjust the frequency of progress reports to be consistent with
site-specific activities.
2. [Number] copies of all documents submitted pursuant to
this Order shall be in writing and shall be hand delivered, sent
by certified mail, return receipt requested, or by overnight
express mail to:
A. Documents to be B. Documents to be submitted
submitted to the EPA to the Respondent should
should be sent to: be sent to:
EPA Project Facility Project
Coordinator, US EPA, Coordinator
Region [Number] Address
Address
Other addresses can also be designated by the Project
Coordinator. All documents submitted pursuant to this Order
shall be printed on recycled paper and shall be copied double-
sided whenever practicable.
3. Any report or other document submitted by Respondent
pursuant to this Order which makes any representation concerning
Respondent's compliance or noncompliance with any requirement of
this Order shall be certified by a responsible corporate officer
of Respondent or a duly authorized representative. A responsible
corporate officer means: a president, secretary, treasurer, or
vice-president of the corporation in charge of a principal
business function, or any other person who performs similar
policy or decision-making functions for the corporation.
4. The certification required by paragraph three (3) above,
shall be in the following form:
"I certify that this document and all attachments were
prepared under my direction or supervision in accordance
with a system designed to evaluate the information
submitted. I certify that the information contained in or
accompanying this submittal is true, accurate, and complete.
As to those identified portion(s) of this submittal for
which.I cannot personally verify the accuracy, I certify
that this-submittal-and all-attachments were prepared in
accordance with procedures designed to assure that qualified
personnel properly gathered and evaluated the information
submitted. Based on my inquiry of the person or persons who
manage the system, or those directly responsible for
gathering the information, or the immediate supervisor of
such person(s), the information submitted is, to the best of
my knowledge and belief, true, accurate, and complete. I am
aware that there are significant penalties for submitting
Consent Order 25 December 15, 1993
-------
false information, including the possibility of fine and
imprisonment for knowing violations."
Signature;
Name:
Title:
Date:
XVI. DELAY IN PERFORMANCE/STIPULATED PENALTIES
1. Unless there has been a written modification by EPA of a
compliance date, a written modification by EPA of an approved
workplan condition, or excusable delay as defined in Section :
Force Majeure and Excusable Delay, if Respondent fails to comply
with any term or condition set forth in this Order in the time or
manner specified herein, Respondent shall pay stipulated
penalties as set forth below upon written demand from EPA.
a. For failure to commence, perform, and/or complete field work
in a manner acceptable to EPA or at the time required
pursuant to this Order: [$] per day for the first seven days
of such violation, [$] per day for the eighth through
twenty-first day of such violation, and [$] per day for each
day of such violation thereafter;
b. For failure to complete and submit any workplans or reports
(other than progress reports) in a manner acceptable to EPA
or at the time required pursuant to this Order, or for
failure to notify EPA of immediate or potential threats to
human health and/or the environment, new releases of
hazardous waste and/or hazardous constituents and/or new
solid waste management units not previously identified, as
required by this Order: [$] per day for the first seven days
of such violation, [$] per day for the eighth through
twenty-first day of such violation, and [$] per day for each
day of such violation thereafter;
c. For failure to complete and submit, other written submittals
not included in paragraph 1.b. of this section in a manner
acceptable to EPA or at the time required pursuant to this
Order: [$] per day for the first seven days of such
violation, [$] per day for the eighth through twenty-first
day of such-violation, and [$] per day for each day of such
violation thereafter;
d. For failure to comply with any other provisions of this
Order in a manner acceptable to EPA: [$] per day for the
first seven days of such violation, [$] per day for the
eighth through twenty-first day of such violation, and [$]
per day for each day of such violation thereafter.
Consent Order 26 December 15, 1993
-------
2. Penalties shall begin to accrue on the day after the
complete performance is due or the day a violation occurs, and
shall continue to accrue through the day of correction of the
violation. Nothing herein shall prevent the simultaneous accrual
of separate stipulated penalties for separate violations of this
Order. Penalties shall continue to accrue regardless of whether
EPA has notified the Respondent of a violation.
3. All penalties owed to the United States under this
Section shall be due and payable within 30 days of the
Respondent's receipt from EPA of a written demand for payment of
the penalties, unless Respondent invokes the dispute resolution
procedures under Section : Dispute Resolution. Such a written
demand will describe the violation and will indicate the amount
of penalties due.
4. Interest shall begin to accrue on any unpaid stipulated
penalty balance beginning on the thirty-first day after
Respondent's receipt of EPA's demand letter. Interest shall
accrue at the Current Value of Funds Rate established by the
Secretary of the Treasury. Pursuant to 31 U.S.C. § 3717, an
additional penalty of 6% per annum on any unpaid principal shall
be assessed for any stipulated penalty payment which is overdue
for 90 or more days.
5. All penalties shall be made payable by certified or
cashier's check to the United States of America and shall be
remitted to:
U.S. Department of the Treasury
Attention: EPA Region [Number], Office of the Comptroller
[Insert appropriate lockbox depository address for RCRA
payments]
Pittsburgh, PA 15251
All such checks shall reference the name of the Facility, the
Respondent's name and address, and the EPA docket number of this
action. Copies of all such checks and letters forwarding the
checks shall be sent simultaneously to the EPA Project
Coordinator.
6. Respondent may dispute EPA's assessment of stipulated
penalties by invoking the dispute resolution procedures under
Section : Dispute Resolution. The stipulated penalties in
dispute shall continue to accrue, but need not be paid, during
the dispute resolution period, - Respondent shall-pay stipulated
penalties and interest, if any, in accordance with the dispute
resolution decision and/or agreement. Respondent shall submit
such payment to EPA within 7 days of receipt of such resolution
in accordance with Paragraph 5 of this Section.
7. Neither the invocation of dispute resolution nor the
payment of penalties shall alter in any way Respondent's
obligation to comply with the terms and conditions of this Order.
Consent Order 27 December 15, 1993
-------
8. The stipulated penalties set forth in this section do
not preclude EPA from pursuing any other remedies or sanctions
which may be available to EPA by reason of Respondent's failure
to comply with any of the terms and conditions of this Order.
9. No payments under this section shall be tax deductible
for federal tax purposes.
Guidance
It is EPA policy to require stipulated penalties in all RCRA §3008(h) Consent Orders to
ensure that Respondent complies with all terms and conditions of the Order. Stipulated penalties
are penalties that Respondent agrees to pay for violating any Order provision.
To achieve the objective of compliance with Consent Orders, Regions should closely
monitor the Orders and immediately assess stipulated penalties when violations occur.
Compliance is achieved when all requirements of the Order are satisfied.
The stipulated penalty guidance presented below is intended to aid those involved with
drafting and negotiating RCRA §3008(h) Orders. This guidance does not alter the discretion each
Region may exercise in negotiating Orders. '
1. Alternative Stipulated Penalty Language
(a) Single Penalty Approach
The stipulated penalty language included in the Order categorizes potential penalties
based on the type of violation. For example, there is one penalty amount for failure to
submit an acceptable workplan to EPA on schedule and another amount for failure to
commence, perform, and/or complete field work as required in the Order. Regions
preferring to have a single penalty schedule for any violation of the Order should consider
the following language instead of paragraphs 1.a. through 1.d in the Order.
Penalty Per
Period of Violation Violation Per Day
First 7 days [$]
8th day through 21st day [$]
Each day thereafter [$]
(b) Identification of Field Work Tasks
Paragraph 1.a. of this section of the Order addresses the failure to 'commence, perform,
and/or complete field work* in a manner acceptable to EPA or at the time required by the
Order. For those Regions that would prefer to list and schedule the individual field work
tasks that must be completed, the following language may be substituted for paragraph
La.:
a. For failure to commence, perform, and/or complete the field work tasks listed
below in a manner acceptable to EPA or at the time required pursuant to this
Order: [$] per day for the first seven days of such violation, [$] per day for the
eighth through twenty-first day of such violation, and [$] per day for each day of
such violation thereafter;
Consent Order 28 December 15, 1993
-------
Regions should list major milestones and field work tasks. Examples include, but are not
limited to, the following:
Begin RFI field work.
Conduct surface soil sampling. /
Install groundwater monitoring wells. *
Begin pump tests of monitoring well network.
Conduct monitoring well sampling.
Begin installation of a pump and treat system as an interim measure.
2. Negotiating Stipulated Penalties
The penalty amounts Regions negotiate should be sufficient to deter violations of the
Order. The following principles should be considered when negotiating stipulated penalty
time frames and amounts:
a. Higher stipulated penalties are favored because of their deterrent effect. These
higher amounts are considered reasonable because there are provisions in the
Order for force maieure events which may excuse unforeseen events. Additionally,
compliance is under the Respondent's control and if delays are anticipated, the
Respondent may seek modifications of the deadlines pursuant to Sectionjj
Modification.
Consider the facility's compliance history when negotiating penalty amounts. If
Respondent has a record of previous violations, a higher stipulated penalty may be
necessary to deter future violations. According to §3008(h)(2) of RCRA, EPA can
assess and Respondent is liable to the United States for up to $25,000 per day in
civil penalties for violating an Order.
b. The burden is always on Respondent to justify lower stipulated penalties than what
EPA has proposed in the initial draft Order.
c. There should be higher stipulated penalty amounts set for the most important
requirements, of the Order. For example, workplans and reports are more important
than some other submittals and should have higher stipulated penalties.
d. Stipulated penalties should have an escalating schedule in which the stipulated
penalty increases with the length of the violation. For example, violations of up to
seven days might have stipulated penalties of $5,000 per day while violations from
the eighth to twenty-first days might have stipulated penalties of $8,000 per day,
and so on.
3. Setting Stipulated Penalty Amounts
The following range of time frames and penalty amounts are given as a guide to
negotiators. Each Region has the discretion to set whatever time frames and stipulated
penalty amounts deemed applicable to deter violations of the Order.
a. For failure to commence, perform, and/or complete field work in a manner
acceptable to EPA or at the time required pursuant to this Order: [$] per day for the
first seven days of such violation, [$] per day for the eighth through twenty-first day
of such violation, and [$] per day for each day of such violation thereafter;
Time Frame Suggested Range
Consent Order ' 29 December 15, 1993
-------
1 - 7 'days: $2,000 - $5,000 per day
8-21 days: $5,000 - $8,000 per day
Each day
Thereafter: $8,000 - $12,000 per day
b. For failure to complete and submit any workplans or reports (other than progress
reports) in a manner acceptable to EPA or at the time required pursuant to this
Order or for failure to notify EPA of immediate or potential threats to human health
and/or the environment, new releases of hazardous waste and/or hazardous
constituents and/or new solid waste management units not previously identified as
required by this Order: [$] per day for the first seven days of such violation, [$] per
day for the eighth through twenty-first day of such violation, and [$] per day for
each day of such violation thereafter;
Time Frame Suggested Range
1 - 7 days: $2,000 - $5,000 per day
8 - 21 days: $5,000 - $8,000 per day
Each day
Thereafter: $8,000 - $12,000 per day .
c. For failure to>complete and submit other written submfttals not included in
paragraph 1.b. of this section in a manner acceptable to EPA or at the time
required pursuant to this Order: [$] per day for the first seven days of such
violation, [$] per day for the eighth through twenty-first day of such violation, and
[$] per day for each day of such violation thereafter;
Time Frame Suggested Range
1 - 7 days: $1,000 - $2,500 per day
8 - 21 days: $2,500 - $3,500 per day
Each day
Thereafter: $3,500 - $5,000 per day
Examples of paragraph c. violations include, but are not limited to, the following:
Failure to submit progress reports on schedule.
Failure to notify EPA of Project Coordinator selection.
Failure to notify EPA of selected consultant in a timely manner.
Failure to notify EPA prior to initiating field work.
d. For failure to comply with any other provisions of this Order in a manner
acceptable to EPA: [$] per day for the first seven days of such violation, [$] per
day for the eighth through twenty-first day of such violation, and [$] per day for
each day of such violation thereafter.
Time Frame Suggested Range
1 - 7 days: $1,000 - $2,500 per day
8 - 21 days: $2,500 - $3,500 per day
Each day
Thereafter: $3,500 - $5,000 per day
Examples of paragraph d. violations include, but are not limited to, the following:
Consent Order 30 December 15, 1993
-------
Failure to preserve records as required in the order. I
Failure to provide a copy of the Order to all contractors, laboratories, and
consultants.
Failure to provide written notice to any successor in interest prior to
transfer of ownership or operation of the facility.
If using the alternative stipulated penalty language in paragraph l(a) of this guidance
section, use the following suggested range for setting penalties:
Penalty Per
Period of Violation Violation Per Day
First 7 days $2,000 - $5,000
8th day through 21st day $5,000 - $8,000
Each day thereafter $8,000 - $12,000
4. Legal Issues
a. Right to Judicial Review
The right to judicial review of EPA actions in the implementation of RCRA §3008(h) Orders
is routinely a concern of Respondents. It is EPA's position that no right to judicial review exists
until such time as the Agency commences a judicial action against Respondent. This concept
applies to the accrual and demand for payment of stipulated penalties.
b. Double Payment
A common concern of Respondents is that EPA may collect stipulated penalties and then
pursue a separate judicial action to collect further penalties for the same violation. EPA has the
right to pursue any and all actions necessary to enforce the Order. If justified by Respondent this
issue may be addressed by adding the following penalty offset language to paragraph eight:
However, all stipulated penalties which are paid by Respondent may be off-set against any
and all penalties for the same violation which EPA may be entitled to collect as a result of
other enforcement action.
c. Excused Stipulated Penalties
In general, stipulated penalties should never be excused unless there is an excusable
delay as defined in Section : Force Majeure and Excusable Delay. In rare unforeseeable
circumstances, however, the equities of a case may indicate that EPA should recalculate the
amount it agrees to assess or exercise prosecutorial discretion by declining to proffer a demand
for stipulated penalties for minor violations of an Order.
d. Acceptability of Submittals
«
Paragraph 1 of the model stipulated penalty language states that stipulated penalties apply
to work that is "not completed in a manner acceptable to EPA or is not submitted within the
specified time schedules approved under this Order.* Not completed in a manner acceptable to
EPA means that Respondent has not produced a submittal or completed work that meets the
terms and conditions of the Order, attachments, scopes of work, approved workplans and/or
EPA's written comments and applicable guidance documents. It is understood that major
submittals (except progress reports) required by the Order will probably need some revision prior
to approval. However, if Respondent provides unacceptable submittals and fails to adequately
address EPA comments, stipulated penalties should be assessed.
Consent Order 31 December 15, 1993
-------
e. Interest on Delinquent Stipulated Penalty Payments
An unpaid stipulated penalty is considered an out-standing debt to the U.S. Government.
Pursuant to 31 U.S.C. §37l7(a), EPA is entitled and obligated to collect interest on any outstanding
debts such as unpaid stipulated penalties. The rate of interest is established by the Secretary of
Treasury and is known as the Current Value of Funds Rate. Each EPA Region has a Financial
Management Officer that can provide the existing Current Value of Funds Rate.
EPA is also entitled to collect additional interest as a penalty amount for payments which
are greater than 90 days delinquent. The authority for delinquent payments is found in 37 U.S.C.
§3717(6), 4 C.F.R. §§101.1,102.l2(d), (e) and 40 C.F.R. 13.11(b) and (c). EPA has established the
additional penalty at the maximum allowed rate of 6% per annum.
5. Regional Financial Management
If the Region issues a demand letter for stipulated penalties, copies of the demand letter
and the Order should be sent to the Regional Financial Management Officer so that an accounts
receivable may be established for the expected penalty payment.
6. Dispute Resolution Decisions
Dispute resolution decisions that require payment of stipulated penalties and interest
should be clearly written. The decision should indicate the exact amount of the penalty, how the
penalty was calculated, and when the payment is due.
7. Other Guidance
a. "Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent
Decrees," Thomas L. Adams, Jr., September 21, 1987.
b. 'Use of Stipulated Penalties in EPA Settlement Agreements," James M. Strock,
January 24, 1990.
XVII. DISPUTE RESOLUTION
1. The parties shall use their best efforts to informally
and in good faith resolve all disputes or differences of opinion.
The parties agree that the procedures contained in this section
are the sole procedures for resolving disputes arising under this
Order. If Respondent fails to follow any of the requirements
contained in this section then it shall have waived its right to
further consideration of the disputed issue.
2. If Respondent disagrees, in whole or in part, with any
written decision ("Initial Written Decision") by EPA pursuant to
this Order, Respondent's Project Coordinator shall notify the EPA
Project Coordinator of the dispute. The Project Coordinators
shall attempt to resolve the dispute informally.
3. If the Project Coordinators cannot resolve the dispute
informally, Respondent may pursue the matter formally by placing
its objections in writing. .Respondent's written objections must
be directed to the EPA Project Coordinator [and may be copied to
Consent Order 32 December 15, 1993
-------
(specify appropriate management level)]. This written notice
must be mailed to such person(s) within [X] days [suggest 14
days] of Respondent's receipt of the Initial Written Decision.
Respondent's written objection must set forth the specific points
of the dispute, the position Respondent claims should be adopted
as consistent with the requirements of this Order, the basis for
Respondent's position, and any matters which it considers
necessary for EPA's determination.
4. EPA and Respondent shall have [X] days [suggest 14 days]
from EPA's receipt of Respondent's written objections to attempt
to resolve the dispute through formal negotiations. This time
period may be extended by EPA for good cause. During such time
period, ("Negotiation Period") Respondent may request a
conference with (specify appropriate management title) to discuss
the dispute and Respondent's objections. EPA agrees to confer in
person or by telephone to resolve any such disagreement with the
Respondent as long as Respondent's request for a conference will
not extend the Negotiation Period.
5. If the parties are unable to reach an agreement within
the Negotiation Period, Respondent has the right to submit any
additional written arguments and evidence, not previously
submitted, to the decision maker (the official who has delegated
authority to make final decisions on Orders). Based on the
record, EPA shall provide to Respondent its written decision on
the dispute ("EPA Dispute Decision") which shall include a
response to Respondent's arguments and evidence. Such decision
shall be incorporated into and become an enforceable element of
this Order, but will not be considered final Agency action for
purposes of judicial review.
6. Except as provided in Section __: Delay in
Performance/Stipulated Penalties, the existence of a dispute as
defined in this section and EPA's consideration of matters placed
into dispute shall not excuse, toll, or suspend any compliance
obligation or deadline required pursuant to this Order during the
pendency of the dispute resolution process.
Guidance
U.S. EPA strongly encourages its Project Coordinators to resolve disputes with
Respondents informally since the informal process saves resources, expedites implementation of
the corrective action program, and resolves issues at the level where knowledge of the facility and
of the site specific impact of the resolution is the greatest. Consequently, the Order places
primary emphasis on informal dispute resolution between the Project Coordinators.
U.S. EPA recognizes) however, that not all issues may be resolved by informal discussions
between the Project Coordinators. Consequently, the Order outlines a process for formal dispute
resolution. This process involves formal negotiation of the dispute and an opportunity for review
and discussion of a dispute with a designated EPA management official. It is important to note
that the EPA Dispute Decision must be signed by the official who has delegated authority to sign
the initial Order.
Consent Order 33 December 15, 1993
-------
The EPA Dispute Decision and any written agreement reached by the parties to resolve the
dispute shall be incorporated into this Order. It shall be attached to the Order as an appendix.
4
In addition, Regions in their own discretion may decide that use of Alternative Dispute
Resolution (ADR) is suitable for certain issues in a particular RCRA §3008(h) order. If the Region
so decides, then the following language should be considered.
Sample ADR language;
[NOTE: When appropriate, this provision should be inserted after paragraph six (6) above
and the second sentence of paragraph five (5) should be deleted.]
7. Respondent may request mediation within 5 days of issuance of the EPA Dispute
Decision if such decision involves a mediated matter as defined in paragraph 8. In the event of
such a request, the parties agree to follow the procedures in paragraphs 8 through 15 below.
Alternatively, EPA and Respondent may agree in writing to waive formal negotiations as outlined
above and initiate mediation as outlined below. [NOTE: In this event the references to mediation
request should be changed to "the initiation of mediation'.]
8. For purposes of this section, Mediated Matters include: (1) the need for additional work
beyond that required in Section : Work to be Performed, costing an additional [$] ($250,000
recommended); (2) approval of the final RFI report or CMS workplan; or (3) the existence of a
force maieure event pursuant to Section : Force Majeure. Respondent may invoke the
mediation process no more than [number] times during the pendency of this Order.
9. The parties agree that they will share equitably the costs of mediation. The EPA Project
Coordinator shall notify Respondent as to the extent of EPA's ability to share equitably the costs
of mediation within 5 days of EPA's receipt of Respondent's request for mediation or within 5 days
of the date of the parties' agreement to mediate pursuant to paragraph 7 above. This time period
may be extended by the EPA Project Coordinator if necessary to determine the availability of EPA
funds to share the costs of mediation. EPA's ability to share the costs of mediation will be
determined by EPA in its sole discretion and shall not be subject to dispute resolution or judicial
review. Upon written notice by the EPA Project Coordinator to Respondent that EPA cannot
equitably share the costs of mediation, the EPA Dispute Decision shall be incorporated into and
become an enforceable element of this Order, but will not be considered final Agency action for
purposes of judicial review. If EPA notifies Respondent that it can equitably share the expenses of
mediation then the Parties shall follow the procedures below.
10. If the parties use the Dispute Resolution Support Services contract they agree to
select a mediator(s) in accordance with the following procedures:
(a) Upon receipt of Respondent's request for mediation or the written agreement to
mediate pursuant to paragraph 7 above, and following EPA's notification that it can share
the expenses of mediation, the parties will be forwarded a list of mediators ("Mediator
Selection List") available through the Dispute Resolution Support Services Contract
managed by EPA.
(b) Within 5 days of Respondent's receipt of the Mediator Selection List, the parties shall
simultaneously provide each other with a letter ("Mediator Nomination Letter") which shall
contain the names of 5 persons from the Mediator Selection List nominated to serve as
mediators for the Mediated Matter in dispute.
(c) The mediators nominated by each party must not have any past, present, or planned
future business relationships with the parties, other than for mediation activities. They
Consent Order 34 December 15, 1993
-------
must also agree to the terms and conditions for mediation contained in this Order and
enter into an agreement for the provision of ADR services with the parties. Ail persons
nominated shall be provided with a copy of the Order by the nominating party. Any
conflicts of interest or refusal to comply with paragraphs 13 and 14 of this section shall
automatically result in rejection of said nominee.
(d) Within 5 days of the receipt of the Mediation Nomination Letters, each party shall
advise the other in writing of acceptable nominees. All acceptable nominees who are not
automatically rejected pursuant to subparagraph (c) above, shall comprise the Mediator
Nomination List. The parties shall select a mediator from the Mediator Nomination List and
enter into an agreement for mediation services with such mediator through negotiation and
by mutual consent within 20 days of the receipt of the Mediation Nomination Letters.
Alternatively, the parties may select a mediator from any other source of mediators. In this
event, the provisions of paragraph I0(c) shall continue in effect.
11. The parties agree that the time period for mediation of the matter in dispute is limited
to 30 days from the date the parties sign an agreement with a Mediator. This time period may be
extended by EPA.
12. If for any reason the parties are unable to select a mediator, or are unable to approve
and execute an agreement for mediation services, or are unable to complete mediation, within the
time periods for those activities specified in paragraphs 10 and 11 above, EPA's Dispute Decision
shall be incorporated into and shall become an enforceable element of this Order upon the
conclusion of such time period, but will not be considered final Agency action for purposes of
judicial review.
13. Unless the parties agree otherwise in writing, the mediator's role shall be limited to
facilitating negotiation between the parties. Mediation sessions shall not be recorded verbatim
and no forma! minutes or transcripts shall be maintained. Unless the parties agree otherwise, the
mediator shall make no written findings or recommendations.
14. Meetings or conferences with the mediator shall be treated as confidential settlement
negotiations. Statements made by any person during any such meetings or conferences shall be
deemed to have been made in compromise negotiations within the meaning of Rule 408 of the
Federal Rules of Evidence and applicable state rules of evidence, and shall not be offered in
evidence in any proceeding by any person. The mediator will be disqualified as a witness,
consultant or expert in any pending or future action relating to the subject matter of the mediation,
including those between persons not a party to the mediation. If Respondent fails to comply with
the mediation confidentiality requirements of this section, then it will forfeit its rights, if any
remain, under this Order to request future mediation and may be responsible for stipulated
penalties for such breach as provided in Section : Delay in Performance/Stipulated Penalties,
Paragraph 1 (d).
15. Any agreement to resolve the dispute reached by the parties pursuant to this section
shall be in writing and shall be signed by both parties. The written agreement shall specify which
provisions of the EPA Dispute Decision are superseded and/or modified. If the written agreement
is not signed by Respondent within 7 days after the resolution of the dispute it shall be null and
void and the EPA Dispute Decision shall be incorporated into and become an enforceable element
of this Order, but will not be considered final Agency action for purposes of judicial review.
Guidance
Alternative Dispute Resolution
Consent Order 35 December 15, 1993
-------
The use of ADR in enforcement actions has been encouraged by the Agency since
issuance of guidance on this subject on August 14,1987 by Administrator Lee Thomas. That
guidance identified characteristics of suitable cases for ADR, approval procedures for ADR cases
and procedures for selection of a third party neutral. On June 19, 1990 Deputy Administrator Hank
Habicht issued a policy statement strongly supporting the use of ADR techniques. Then, in
November 1990, Congress passed the Administrative Dispute Resolution Act, 5 U.S.C. § 581
(Supp. 1990) which fosters the use of ADR in federal litigation. Finally, the Executive Order on
Civil Justice Reform, No. 12778, 56 Fed. Reg. 55,195 (October 23, 1991) encourages the use of
ADR techniques in. inter alia, all federal disputes. In August 1992 the Department of Justice
issued 'Guidance on the Use of Alternative Dispute Resolution for Litigation in the Federal Courts'.
It is important to note that the ADR Act and the Executive Order limit the Agency's ability
to enter binding arbitration because the Agency can not delegate its decision making authority.
Thus, binding arbitration is permissible as long as all parties consent and the Agency is permitted
to review and reject the decision.
The sample language included in this guidance provides for the use of non-binding
mediation, one of several dispute resolution techniques of non-binding assisted negotiation. Non-
binding third-party mediation (NBTPM) was chosen for the model order because of its relative
simplicity, its administrative expediency, and its non-binding nature. In mediation, a third party
neutral is used to facilitate settlement negotiations between the parties. He/she acts as a catalyst
and facilitator of communications between the parties, but not a judge of the position taken by the
parties during the course of negotiations. Regions may choose a different non-binding ADR
technique for facility specific reasons.
Fact-finding, a technique which entails the investigation of specified issues by a neutral
with subject matter expertise, is another ADR mechanism which may be useful in corrective action
orders to narrow factual or technical issues in dispute.
ADR has been used in a few RCRA §3008(h) Consent Orders, such as: Kimberly-Clark
(Reg. 4, April 1989). Safetv-Kleen (Reg. 5, October 1988) and Texaco Refining and Marketing (Reg.
8, September 1989).
In NBTPM, as it pertains to RCRA §3008(h) actions, certain principles should be followed.
These are:
(a) The third-party must be neutral;
(b) The proceedings, discussions and third-party recommendations should be kept
confidential;
(c) The third-party may not issue a binding decision;
(d) The Agency should retain the authority to make the ultimate decision on disputed
matters;
(e) There should, be a time limit on the length of the ADR process;
(f) The use of the alternate technique must be conditioned on availability of funds for
EPA to pay an equitable share of the costs of the ADR process;
The rationale for many of these principles in the Order are discussed below.
Subject Matter and Frequency of Mediation
Consent Order 36 December 15, 1993
-------
EPA is concerned that use of any formal dispute resolution technique, even ADR
techniques, may impede progress with implementation of corrective measures If ft is invoked too
frequently. Consequently, tne Order encourages informal negotiations, limits the frequency and
subject matter of issues potentially subject to NBTPM, and sets a limit on the period of time for
selection of a mediator and actual mediation.
The limited subject matters which may be subject to ADR were chosen based on
experience with concerns raised by Respondents when negotiating Orders, the frequency with
which these subjects are raised as a major issue in negotiations, and the potential these subjects
have to significantly increase the costs incurred by a Respondent. Other subject matter areas may
be substituted for these by each Region based on facility-specific considerations.
As important as the subject matter limitations is a numeric limitation. The Order allows the
Region discretion to set the number of times NBTPM may be requested during the life of the
Order. Three times would allow a Respondent to invoke ADR once for each identified Mediated
Matter subject to ADR; it is not so frequent as to significantly impede progress with
implementation of the corrective measures; and it is likely to be within the Agency's ADR budget
and thus likely to be used. Regions may alter this guideline if experience suggests that corrective
measures are likely to be significantly impeded or expedited by the use of ADR.
Cost of Mediation
The distribution of costs for NBTPM must be shared equitably between EPA and
Respondent so as to ensure neutrality of the mediator, avoid the appearance of bias; and ensure
compliance with the Miscellaneous Receipts Act. Since the need for a mediator in many instances
may not occur until years after the Order is signed, and the Agency cannot commit to reserving
money in the future for a mediator, it is also important that the use of any ADR technique be
contingent on the availability of funds for ADR. To address these issues, the Order preconditions
use of NBTPM on the availability of federal money for the mediation at the time the need for the
mediation arises and requires an equitable sharing of the costs of mediation between EPA and
Respondent. If these conditions are not met then the dispute would proceed as all other formal
disputes. Moreover, the Agency's decision on the availability of funds for ADR is not subject to
dispute resolution.
Selection of Mediator
The Agency presently has a Dispute Resolution Support Services contract (#68-W1-0014)
through which parties can have access to a large pool of qualified environmental mediators. To
facilitate implementation the mediator chosen may be selected from the universe of mediators who
are available under the EPA contract. Alternatively, the parties may select a mediator from any
other source. Any mediator selected will be required to enter into a short and simple agreement
with Respondent and EPA. Such agreement will govern the terms of his/her engagement, the
mediator's role and responsibilities, confidentiality, and any other provisions agreed to by the
parties. The lead attorney for EPA has the authority to sign this agreement with Respondent and
the mediator.
Confidentiality
To foster open communications between the parties during mediation it is important that
the discussions not be used by either party or a third party at a later time. Consequently, the
Order explicitly states that the proceedings will not be recorded and shall be treated as
confidential. The ADR Act, 5 U.S.C. §584, contains strict prohibitions on disclosure of any
confidential information. Communications arising from ADR proceedings should not be disclosed
to third parties or a court without the consent of the parties. Furthermore, the mediator is also
disqualified to act as a witness, consultant, expert, or mediator in any pending or future action
Consent Order 37 December 15, 1993
-------
related to the subject matter of the mediation. The agreement with the mediator should confirm
these same restrictions.
For further information on implementation of ADR mechanisms and the availability of
dispute resolution services, EPA personnel should call David C. Batson, EPA's ADR Liaison, Office
of Enforcement, 202-260-8173, Deborah Dalton, Consensus and Dispute Resolution Program,
Office of Regulatory Management and Evaluation, Office of Policy, Planning and Evaluation, 202-
260-5495, or Ellen Kandell, RGRA Enforcement Division, Office of Waste Programs Enforcement,
202-260-9315. Decisions on the use of ADR in specific orders will be left to the Regions.
XVIII. FORCE MAJEURE AND EXCUSABLE DELAY
1. Force maieure. for purposes of this Order, is defined as
any event arising f.rom causes not foreseen and beyond the control
of Respondent or any person or entity controlled by Respondent,
including but not limited to Respondent's contractors, that
delays or prevents the timely performance of any obligation under
this Order despite Respondent's best efforts to fulfill such
obligation. The requirement that Respondent exercise "best
efforts to fulfill such obligation" shall include, but not be
limited to, best efforts to anticipate any potential force
maieure event and address it before, during, and after its
occurrence, such that any delay or prevention of performance is
minimized to the greatest extent possible. Force majeure does
not include increased costs of the work to be performed under
this Order, financial inability to complete the work, work
stoppages or other labor disputes.
2. If any event occurs or has occurred that may delay the
performance of any obligation under this Order, whether or not
caused by a force maieure event, Respondent shall contact by
telephone and communicate orally with EPA's Project Coordinator
or, in his or her absence, EPA's alternative Project Coordinator
or, in the event both of EPA's designated representatives are
unavailable, the Director of the Hazardous Waste Management
Division, EPA Region [Number], within [48] hours of when
Respondent first knew or should have known that the event might
cause a delay. If Respondent wishes to claim a force majeure
event, then within [5] days thereafter, Respondent shall provide
to EPA in writing the anticipated duration of the delay; all ---
actions taken or to be taken to prevent or.minimize the delay;
all other obligations affected by the event, and what measures,
if any, taken or to be taken to minimize the effect of the event
on those obligations; a schedule for implementation of any
measures to be taken to prevent or mitigate the delay or the
effect of the delay; Respondent's rationale for attributing such
delay to a force maieure event if it intends to assert such a
claim; and a statement as to whether, in the opinion of
Respondent, such event may cause or contribute to an endangerment
to public health or the environment. Respondent shall include
with any notice all available documentation supporting its claim,
if any, that the delay was attributable to a force maieure.
Failure to comply with the above requirements shall preclude
Respondent from asserting any claim of force maieure for that
Consent Order 38 December 15, 1993
-------
event. Respondent shall be deemed to have notice of any
circumstances of which its contractors had or should have had
notice.
3. If EPA determines that the delay or anticipated delay is
attributable to a force majeure event, the time for performance
of such obligation under this Order that is affected by the force
majeure event will be extended by EPA for such time as EPA
determines is necessary to complete such obligation. An
extension of the time for performance of such obligation affected
by the force majeure event shall not, of itself, extend the time
for performance of any other obligation, unless Respondent can
demonstrate that more than one obligation was affected by the
force majeure event. If EPA determines that the delay or
anticipated delay has been or will be caused by a force majeure
event, EPA will notify Respondent in writing of the length of the
extension, if any, for performance of such obligations affected
by the force majeure event.
4. If EPA disagrees with Respondent's assertion of a force
maneure event, EPA will notify Respondent in writing and
Respondent may elect to invoke the dispute resolution provision,
and shall follow the time frames set forth in Section : Dispute
Resolution. In any such proceeding, Respondent shall have the
burden of demonstrating by a preponderance of the evidence that
the delay or anticipated delay has been or will be caused by a
force majeure event, that the duration of the delay or the
extension sought was or will be warranted under the
circumstances, that best efforts were exercised to avoid and
mitigate the effects of the delay, and that Respondent complied
with the requirements of this Section. If Respondent satisfies
this burden, the time for performance of such obligation will be
extended by EPA for such time as is necessary to complete such
obligation.
Guidance
The force maieure language contained herein is derived largely from the mode! CERCLA
RD/RA decree {June 21, 1991). The revised model language adopts the concept of "best efforts"
from the CERCLA decree to define force maieure. "Best efforts" is meant to require Respondent to
meet a high standard of performance before it may be excused from complying with certain
schedules or tasks set forth in the Order. In Re Heard. 6 B.R. 876 (U.S. Bkrtcy Ct., W.D. Ky. 1980)
the Court stated "best efforts' imposes a legal duty of performance more demanding than mere
competence or due diligence.... If the duty of best efforts is owed, it must be performed even at a
loss and it involves a stricter standard of performance than good faith." The term "best efforts" has
been interpreted in various court decisions, and commonly it has been used in contractual
documents and consent decrees. In the context of the Order, the definition of "best efforts"
enumerates certain specific actions that Respondent must take to meet the Order's requirements:
(1) anticipate any potential force maieure event before, during, and after its occurrence and (2)
minimize any delay or prevention of performance.
The phrase "causes not foreseen" used in defining force maieure events under the Order
places the burden on Respondent to take reasonable steps to identify and anticipate situations
which could cause a delay in the performance of work. It also places a burden on Respondent to
exercise due care to avoid such situations or mitigate their consequences so as to ensure all work
Consent Order 39 December 15, 1993
-------
is performed in a timely and adequate manner. The Agency expects events that fall under the
definition of force maieure to be extremely rare.
To avoid time-consuming arguments during negotiations regarding specific examples of
what does and does not constitute force maieure events, the model order lists only four examples.
In those circumstances where the Agency finds it necessary to provide additional specific
examples, these should be limited to the following: extraordinary weather events; natural
disasters, national emergencies; delays in obtaining access to property not owned or controlled by
Respondent despite timely, best efforts to obtain such access; and delays in obtaining any
required approval or permit from EPA or other entities that result despite Respondent's complete,
timely, and appropriate submission of all information and documentation required for approval or
applications for permits within a time frame that would permit the work to proceed in a manner
contemplated by the schedule in the Order.
'XIX. RESERVATION OF RIGHTS
[NOTE: To ensure abatement of the threats posed by facility conditions, EPA's right to
take action in the future or to require Respondent to take appropriate future action must be
preserved. For example, the Respondent may satisfactorily perform the actions required of
it by the Order, but these actions may prove ultimately to be insufficient to remedy the
problem. To address such instances, the Agency must reserve its right to institute legal
action.]
1. EPA reserves all of its statutory and regulatory powers,
authorities, rights, and remedies, both legal and equitable,
which may pertain to Respondent's failure to comply with any of
the requirements of this Order, including without limitation the
assessment of penalties under §3008(h)(2) of RCRA, 42 U.S.C.
§6928(h)(2). This Order shall not be construed as a covenant not
to sue, release, waiver, or limitation of any rights, remedies,
powers, and/or authorities, civil or criminal, which EPA has
under RCRA, CERCLA, or any other statutory, regulatory, or common
law authority of the United States.
2. EPA reserves the right to disapprove of work performed
by Respondent pursuant to this Order and to order that Respondent
perform additional .tasks.
3. EPA reserves the right to perform any portion of the
work consented to herein or any additional site characterization,
feasibility study, and remedial work as it deems necessary to
protect human health and/or the environment. EPA may exercise
its authority under CERCLA to undertake response actions at any
time. In any event, EPA reserves its right to seek reimbursement
from Respondent for costs incurred by the United States.
Notwithstanding compliance with the terms of this Order,
Respondent is not released from liability, if any, for the costs
of any response actions taken or authorized by EPA.
4. If EPA determines that activities in compliance or
noncompliance with this Order have caused or may cause a release
of hazardous waste or hazardous constituent(s), or a threat to
human health and/or the environment, or that Respondent is not
capable of undertaking any of the work ordered, EPA may order
Consent Order 40 December 15, 1993
-------
Respondent to stop further implementation of this Order for such
period of time as EPA determines may be needed to abate any such
release or threat and/or to undertake any action which EPA
determines is necessary to abate such release or threat.
5. This Order is not intended to be nor shall it be
construed to be a permit. Further, the parties acknowledge and
agree that EPA's approval of the SOW or any final workplan does
not constitute a warranty or representation that the SOW or
workplans will achieve the required cleanup or performance
standards. Compliance by Respondent with the terms of this Order
shall not relieve Respondent of its obligations to comply with
RCRA or any other applicable local, State, or federal laws and
regulations.
[NOTE: The following paragraph should be considered in appropriate cases to supplement
the other paragraphs in this section.]
#. Respondent does not admit any of the factual or legal determinations made by the EPA
and reserves all rights and defenses H may have regarding liability or responsibility for conditions
at the facility, with the exception of its right to contest EPA's jurisdiction to issue or enforce this
Order and its right to contest the terms of this Order. Respondent has entered into this Order in
good faith without trial or adjudication of any issue of fact or law.
6. Notwithstanding any other provision of this Order, no
action or decision by EPA pursuant to this Order, including
without limitation, decisions of the Regional Administrator, the
Director of the Waste Management Division, or any authorized
representative of EPA, shall constitute final agency action
giving rise to any right of judicial review prior to EPA's
initiation of a judicial action to enforce this Order, including
an action for penalties or an action to compel Respondent's
compliance with the terms and conditions of this Order.
7. In any action brought by EPA for a violation of this
Order, Respondent shall bear the burden of proving that EPA's
actions were arbitrary and capricious and not in accordance with
law.
.8. In any subsequent administrative or judicial proceeding
initiated by the United States for injunctive or other
appropriate relief relating to the facility, Respondent shall not
assert, and may not maintain, any defense or claim based upon the
principles of waiver, res judicata, collateral estoppel, issue
preclusion, claim-splitting, or other defenses based upon any
contention that the claims raised by the United States in the
subsequent proceeding were or should have been raised in the
present matter.
XX. OTHER CLAIMS
*
Nothing in this Order shall constitute or be construed as a
release from any claim, cause of action, demand, or defense in
law or equity, against any person, firm, partnership, or
corporation for any liability it may have arising out of or
Consent Order 41 December 15, 1993
-------
relating in any way to the generation, storage, treatment,
handling, transportation, release, or disposal of any hazardous
constituents, hazardous substances, hazardous wastes, pollutants,
or contaminants found at, taken to, or taken or migrating from
the Facility. The Respondent waives any claims or demands for
compensation or payment under §§106(b), 111, and 112 of CERCLA
against the United states or the Hazardous Substance Superfund
established by 26 U.S.C. §9507 for, or arising out of, any
activity performed or expense incurred pursuant to this Order.
Additionally, this Order does not constitute any decision on
preauthorization of funds under §111(a)(2) of CERCLA.
XXI. OTHER APPLICABLE LAWS
All actions required to be taken pursuant to this Order
shall be undertaken in accordance with the requirements of all
applicable local, state, and Federal laws and regulations.
Respondent shall obtain or cause its representatives to obtain
all permits and approvals necessary under such laws and
regulations.
XXII. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT
[NOTE: Some companies have raised concerns regarding the scope of the indemnification
clause. The language in brackets, which should be considered in appropriate cases, is
intended to address this concern.]
Respondent agrees to indemnify and save and hold harmless
the United States Government, its agencies, departments, agents,
and employees, from any and all claims or causes of action
arising [solely] from or on account of acts or omissions of
Respondent or its officers, employees, agents, independent
contractors, receivers, trustees, and assigns in carrying out
activities required by this Order. This indemnification shall
not be construed in any way as affecting or limiting the rights
or obligations of Respondent or the United States under their
various contracts. [Respondent shall not be responsible for indemnifying the EPA for
claims or causes of action solely from or on account of acts or omissions of EPA.]
XXIII. FINANCIAL RESPONSIBILITY
[NOTE: To ensure that required corrective measures are successfully completed by
Respondent, EPA may require the establishment of some form of financial assurance. If
Respondent proves unable or unwilling to undertake the actions prescribed in the Order,
the Agency will then have access to funds with which to undertake the required action.
The financial assurance may take one or more of several forms depending on a number of
factors, including the reliability and the financial security of Respondent. These forms of
financial assurance may include, but are not limited to, a performance or surety bond,
liability insurance, an escrow performance guarantee account, letter of credit or a trust
fund. Regions may use the proposed 1986 regulations, 51 Fed. Reg. 37854, October 24,
1986 as guidance.]
Consent Order 42 December 15, 1993
-------
XXIV. REIMBURSEMENT OF OVERSIGHT COSTS
(RESERVED)
XXV. MODIFICATION
1. This Order may only be modified by mutual agreement of
EPA and Respondent.' Any agreed modifications shall be in
writing, be signed by both parties, shall have as their effective
date the date on which they are signed by EPA, arid shall be
incorporated into this Order.
2. Any requests for a compliance date modification or
revision of an approved workplan requirement must be made in
writing. Such requests must be timely and provide justification
for any proposed compliance date modification or workplan
revision. EPA has no obligation to approve such requests, but if
it does so, such approval must be in writing. Any approved
compliance date or workplan modification shall be incorporated by
reference into the Order.
i
3. This section shall not apply to any EPA dispute
decision, EPA approved report, workplan, specification and
schedule which are deemed to be incorporated into this Order.
*
XXVI. SEVERABILITY
If any provision or authority of this Order or the
application of this Order to any party or circumstances is held
by any judicial or administrative authority to be invalid, the
application of such provisions to other parties or circumstances
and the remainder of the Order shall remain in force and shall
not be affected thereby.
XXVII. TERMINATION AND SATISFACTION
The provisions of this Order shall be deemed satisfied upon
Respondent's and EPA's execution of an "Acknowledgment of
Termination and Agreement to Record Preservation and Reservation
of Rights" ("Acknowledgment"). EPA will prepare the
Acknowledgment for Respondent's signature. The Acknowledgment
will specify that Respondent has demonstrated to the satisfaction
of EPA that the terms of this Order, including any additional
tasks determined by EPA to be required pursuant to this Order,
have been satisfactorily completed. Respondent's execution of
the Acknowledgement will affirm Respondent's continuing
obligation (1) to preserve all records as required in Section :
Record Preservation and (2) to recognize EPA's reservation of
rights as required in Section : Reservation of Rights, after all
other requirements of the Order are satisfied.
Consent Order 43 December 15, 1993
-------
Guidance
The acknowledgment document given below must first be sent to Respondent for signature
and then returned to EPA. EPA should then sign the Acknowledgement and return a completed
copy to Respondent.
ACKNOWLEDGMENT OF TERMINATION and
AGREEMENT TO RECORD PRESERVATION AND RESERVATION OF RIGHTS
1. The United States Environmental Protection Agency ("EPA") agrees and
acknowledges that the terms of Order RCRA- entered into by Respondent and EPA
on , 19 ("the Order*), including any additional tasks determined by EPA to
have been required pursuant to the Order, but excluding Section : Record Preservation, have
been satisfactorily completed based upon the information presently available to EPA.
2. Respondent agrees and acknowledges that the terms of Section : Record
Preservation remain in effect until . [Insert date 6 years after termination of
Order.]
3. Respondent agrees and acknowledges that Respondent's completion of the terms
of the Order does not limit or otherwise preclude EPA from taking additional enforcement action
pursuant to §3008(h) of the Solid Waste Disposal Act, commonly referred to as the Resource
Conservation and Recovery Act of 1976 ("RCRA'), as amended by the Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. §6928(h), or other available legal authorities, should EPA
determine that such actions are warranted.
4. Respondent agrees and acknowledges that Respondent's completion of the terms
of the Order does not relieve Respondent of its obligations to comply with RCRA or any other
applicable local, State, or federal laws and regulations.
IT IS SO AGREED AND ACKNOWLEDGED:
Date: By:_
[NAME]
[TITLE]
[RESPONDENT]
Date: By:_
[NAME]
[REGIONAL ADMINISTRATOR OR DELEGATEE]
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION [NUMBER]
XXVIII.. SURVIVABILITY/PERMIT INTEGRATION
Except as otherwise expressly provided in this section, this
Order shall survive the issuance or denial of a RCRA permit for
the Facility, and this Order shall continue in full force and
effect after either the issuance or denial of such permit.
Accordingly, Respondent shall continue to be liable for the
performance of obligations under this Order notwithstanding the
issuance or denial of such permit. If the Facility is issued a
Consent Order 44 December 15, 1993
-------
RCRA permit and that permit expressly incorporates all or a part
of the requirements of this Order, or expressly states that its
requirements are intended to replace some or all of the
requirements of this Order, Respondent may request a modification
of this Order and shall, with EPA approval, be relieved of
liability under this Order for those specific obligations.
XXIX. SUBMITTAL SUMMARY
The following is a summary of the major deadlines required
by this Order. To the extent that this section is inconsistent
with any other section of the Order, such other section and not
this summary shall apply.
Section
VII
VIII
VIII
VIII
VIII
VIII
X
Action
Designate a Project
Coordinator, and notify
EPA in writing of the
Project Coordinator it
has selected.
Submit Interim Measures
Workplan and Health and
Safety Plan.
Submit Current Conditions
Report, Pre-Investigation
Evaluation of Corrective
Measure Technologies
Report, RFI Workplan.
Submit CMS Workplan
Notify EPA orally and in
writing of any new or
additional information
concerning a current or
potential threat.
Provide [insert, as
appropriate: RFI, CMS,
or other] report(s) to
EPA.
Submit progress reports.
Implement approved
workplans.
Due Date
Within [X] days of
the effective date
of this Order.
[X] days from
effective date of
Order.
[X] days from
effective date of
Order.
[X] days from
approval of final
RFI report.
Orally within 48
hours of discovery
and in writing,
within [X] days.
According to the
schedule contained
in the workplan
approved by EPA.
Specify frequency
and due date of
first report.
Upon receipt of
approval according
to schedule
Consent Order
45
December 15, 1993
-------
Notify EPA in writing of
any contractor(s) or
consultant(s).
contained in
workplan.
Within [X] days of
the effective date
of this Order.
XI
XII
Inform EPA Project
Coordinator which
laboratories will be
used.
Notify EPA in writing
before engaging in any
field activities.
Identify in
applicable workplan.
At least [X] days
before activities
commence.
XXX. EFFECTIVE DATE
The effective date of this Order shall be [X] days after
Respondent has received notice from EPA that EPA has signed the
Order.
IT IS SO AGREED:
DATE:
IT IS SO ORDERED:
DATE:
BY:
NAME]
[TITLE]
[RESPONDENT]
BY:
[NAME]
[REGIONAL ADMINISTRATOR OR
DELEGATEE]
U. S. ENVIRONMENTAL PROTECTION
AGENCY REGION [NUMBER]
Consent Order
46
December 15, 1993
-------
A. REFERENCES
The following list comprises additional guidance documents
and other information which may be useful in implementing a RCRA
§3008(h) Order. This list does not include every guidance
document pertaining to work performed under a §3008(h) Order.
Documents are organized according to the relevant section of the
Order. Contacts for additional information are included at the
end of this list.
MODEL ORDER:
Section VIII. Work to be Performed
"Handbook: Stabilization Technologies for RCRA Corrective
Actions," EPA/625/6-91/026, August 1991.
"RCRA Ground-Water Monitoring: Draft Technical Guidance,"
EPA/530-R-93-001, November 1992.
"Interim Final RCRA Facility Investigation (RFI) Guidance,"
Volumes I - IV, EPA/530/SW-89-031, May 1989.
"RCRA Ground-water Monitoring Technical Enforcement Guidance
Document (TEGD)," OSWER Directive 9950.1, September 1986.
Ground-Water Monitoring: Draft Technical Guidance, EPA/530-R-93-
001, November 1992.
"Handbook: Ground Water," Volumes I and II, EPA/625/6-90/016
(a&b), September 1990 and July 1991.
"Ground-Water Modeling: An Overview and Status Report,"
EPA/600/2-89/028, December 1988.
"Statistical Analysis of Ground-Water Monitoring Data at RCRA
Facilities," Addendum to Interim Final Guidance, EPA/530-R-93-
003, July 1992; Interim Final EPA/530/SW-89/026, April 1989.
"Data Quality Objectives for Remedial Response Activities,"
EPA/540/G-87/003 & 004, OSWER Directive 9335.0-7B, March 1987.
"Human Health Evaluation Manual, Supplemental Guidance: Standard
Default Exposure Factors/1 -OSWER Directive 9285.6-03, March 25,
1991.
"Risk Assessment Guidance for Superfund, Volume I: Human Health
Evaluation Manual (Part A)," Interim Final, EPA/540/1-89/002,
December 1989.
Consent Order A-l December 15, 1993
-------
"Risk Assessment Guidance for Superfund, Volume II:
Environmental Evaluation Manual," Interim Final, EPA/540/1-
89/001, March 1989.
"Final Guidance for Data Useability in Risk Assessment," (Parts A
& B), OSWER Directive 9285.7-09A, April 1992.
"Ecological Assessment of Hazardous Waste Sites: A Field and
Laboratory Reference Document," EPA 600/3-89/013, March 1989.
"A Compendium of Superfund Field Operations Methods," Two
Volumes, EPA/540/P-87/001a&b, OSWER Directive 9355.0-14, August
1987.
"Technical Guidance Document: Construction Quality Assurance for
Hazardous Waste Land Disposal Facilities," EPA 530/SW-86/031,
OSWER Directive 9472.003, October 1986.
"Corrective Measures for Releases to Ground Water from SWMUs,"
Draft Final, EPA/530-SW-88-020, March 1985.
"Technical Guidance for Corrective MeasuresDetermining
Appropriate Technology and Response for Air Releases," Draft
Final, EPA/530-SW-88-021, March 1985.
"Air/Superfund National Technical Guidance Study Series," Volumes
I-IV, EPA 450/1-89-001,002,003,004 (1989 and 1990).
"Corrective Measures for Releases to Soil from SWMUs," Draft F
EPA/530-SW-88-022, March 1985.
"Technical Guidance for Corrective Measures Subsurface Gas,"
EPA/530-SW-88-023, March 1985.
"Guide for Conducting Treatability Studies under CERCLA," Interim
Final, EPA/540/2-89/058.
"Selected Alternative and Innovative Treatment Technologies for
Corrective Action and Site Remediation," EPA/540/8-91/092, 1991.
"Synopses of Federal Demonstrations of Innovative Site
Remediation Technologies," EPA/540/8-91/009, May 1991.
"Bibliography of Federal Reports and Publications Describing
Alternative and Innovative Treatment Technologies for Corrective
Action and Site Remediation," EPA/540/8-91/007, May 1991.
Technical Guidance Document: Final Covers on Hazardous Waste
Landfills and Surface Impoundments," EPA/530/SW-89/047, July
1989.
"Handbook on In-Situ Treatment of Hazardous Waste-Contaminated
Soils," EPA/540/2-90/002, January 1990.
Consent Order A-2 December 15, 1993
-------
"Stabilization/Solidification for CERCLA and RCRA Wastes,"
EPA/625/6-89/022, May 1989.
"Health and Safety Requirements of Employees Employed in Field
Activities," EPA Order 1440.2, July 12, 1981.
Section XI. Quality Assurance
"Interim Guidelines and Specifications for Preparing Quality
Assurance Project Plans,11 QAMS-005/80, December 29, 1980.
GENERAL INFORMATION:
"OSWER Directives - System Catalog," OSWER Directive 9013.15-3D,
March 1992. (Provides a list of OSWER Directives published
through March 1991.)
"Technical Support Services for Superfund Site Remediation and
RCRA Corrective Action" (third edition), EPA/540/8-91/091, March
1992.
"Accessing Federal Data Bases for Contaminated Site Clean-Up
Technologies," EPA/540/8-91/008, May 1991.
"Memorandum on the Use of Supplemental Environmental Projects,
Amendment to GM 22," James M. Strock, February 12, 1991.
USEFUL TELEPHONE NUMBERS:
<_
RCRA/CERCLA/UST Hotline (800) 424-9346
EPA's Office of Research and Development publishes occasional
ground water and engineering issue papers. For information
contact:
ORD Publications Office, Center for Environmental Research
Information (CERI), (513) 569-7562
National Technical Information Services (NTIS) (703) 487-4650
(800) 553-6847
Consent Order A-3 December 15, 1993
------- |