3EPA
United State*
Environmental Protection
Agency
Off ic« of
Solid Wast* and
Em*rg*ncy R**pon*
DIRECTIVE NUMBER: 9930. 0-lA
Implementation of EPA Criminal Enforcement Strategy
for RCRA Interim Status Facilities
APPROVAL DATE: 11/15|?5
EFFECTIVE DATE: MI/5/&5
ORIGINATING OFFICE: OWPE
S FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
Supplement to 9930.0-lA
OS WER OS WE Ft OS WER
VE DIRECTIVE DIRECTIVE Dl
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fl — _
V>EPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Reauest
Interim Directive Number
Originator Information
Name of Contact Person
T ,1 nr? (7i
Mail Code
WH S27
Telephone Number
382-4808
Lead Onice
U OERR
D OSW
1 — 1
LJ OUST
0 OWPE
Q AA-OSWER
Approved for Review
Signature of Office Director
Date
NOV 1 5 1985
Title
Memorandum: Implementation of EPA Criminal Enforcement Strategy for RCRA
Interim Status Facilities
Summary of Directive
Criminal enforcement priorities and procedures related to the RCRA 3007 (e) (2)
Loss of Interim Status provision: (1) Identifying/targeting facilities with
violations; (2) verifying receipt of RCRA 3007 letters; (3) inspections of facilities
Type of Directive (Manual. Policy Directive. Announcement, etc.)
Implementation memorandum
Status
O Draft
12LI Final
LXl New
1 _ 1 Revision
ij"Yes [J No
o. \
Does this Directive Supersede Previous Directive(s)? | | Yes K 1 No Doe's It Supplement Previous Directive(s)? [}
f "Yes" to Either Question. What Directive (number, title)
RCRA Loss of Interim Status Enforcement Strategy (Oct. 16, 1985)—^13
Review Plan
O AA-OSWER
EH OERR
OSW
CD OUST
d OWPE
CH Regions
OECM
G3
d OGC
O OPPE
WASTE
CRIMINAL
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives OHicer
Date
Date
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MOV 151985
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
.,SUBJECT: Implementation of EPA Criminal Enforcement Strategy
for RCRA Interim Status Facilities—
FROM: Gene A. Lucero, Director _
Office of Waste Programs Enforcement
Thomas P. Gallagher, Director ~7~HL
National Enforcement Investigations Ce'nter
TO: Waste Management Division Directors,
Regions I-X
Introduction
EPA has designated RCRA enforcement, including compliance
with the November 8, 1985 interim status certification dead-
line, as a high priority enforcement initiative. As you
know, several guidance documents have been issued which
emphasize the importance of criminal enforcement in cases
involving interim status facilities that fail to comply
with RCRA certification/closure requirements. [These
include the Loss of Interim Status Enforcement Strategy
(October 16, 1985); Interim Status ... Notice of
Implementation and Enforcement Policy, 50 Fed. Reg. 38946
(September 25, 1985); RCRA Enforcement Division (OWPE-OSWER)
Guidance - Loss of Interim Status Provision for Land Disposal
Facilities (September 10, 1985); EPA-OSWER FY 1986 RCRA
Implementation Plan (July 1, 1985)]. These policies clearly
state that the Agency intends to vigorously prosecute
those facilities with clear criminal violations.
For EPA's criminal enforcement strategy to succeed, close
coordination by NEIC/OCI Special Agents in Charge with the Regional
Waste Management Division is essential. We understand that your
office will be identifying those facilities with clear violations
based upon inventories of known facilities, responses to
RCRA Section 3007 letters mailed in or about late October, 1985
pursuant to the Loss of Interim Status Enforcement Strategy
and inspection results. To ensure national consistency
in the conduct of criminal investigations of interim status
facilities, NEIC and OWPE will focus on the investigation of
obvious, egregious violators.
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OWPE-NEIC/OCI Implementation of EPA Criminal Enforcement Strategy
OWPE-NEIC/OCI's implementation of the Agency's strategy
consists of three elements: identifying and targeting facilities
with potential criminal violations; verifying that targeted facili-
ties have received their RCRA Section 3007 letters and that
their responses, if any, have been accounted for; and conducting
on-site inspections of targeted facilities.
A. Identifying/Targeting Facilities with Violations:
All Special/Resident Agents in Charge will be initiating
immediate communications with regional program offices
so that land disposal facilities/units in the following
categories can be identified and targeted for enforcement:
(1) Those that have not certified compliance and/or have
not submitted a part B permit application yet continued
to introduce (treat, store or dispose of) hazardous
waste into land disposal facilities after November 8,
1985;
(2) Those that falsely certified compliance because they
have not complied with either ground-water monitoring
or financial responsibility requirements'(e.g., have
made no effort to comply);
(3) Those that have falsely certified compliance because
they made only cosmetic efforts to comply (e.g., have
installed ground-water monitoring wells that appear
to be operational but in fact are inoperative).
Facilities that are targeted for enforcement should include,
to the extent possible, a mix of large and small owner/
operators, including both on-site and commercial facilities.
We will attempt one/two investigations per Region. Since these
categories are also the most appropriate for civil enforcement,
seeking to enjoin immediately introduction of hazardous waste
into such units, close coordination with the Regional Counsels
is necessary where there is a potential for civil or parallel
proceedings.
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NEIC/OCI will focus on investigating facilities which failed
to certify but continued operations regardless. These
facilities will be distinguished from facilities that partially
certified (e.g., as to some land disposal units but not
all). Similar emphasis will be given to cases which involve
false certifications, where the owner/operator did not
approach achieving compliance.
Potential targets of criminal investigations and prosecutions
may attempt to mitigate their liability and the apparent
willfulness of their conduct. Defenses that rely upon
correspondence with EPA or a State or the presence of monitoring
wells that fail to meet technical requirements may complicate
criminal prosecutions. In such cases, legal advice should be
sought from the criminal enforcement attorney in your Office
of Regional Counsel or from the HQ Office of Criminal Enforcement
B. Verifying Receipt of RCRA Section 3007 Letters:
In all cases, we will need to verify that the RCRA Section 3007
letter described above was received by the facility in question
without contacting the facility. Any response to the Section
3007 letter by a targeted facility will be reviewed carefully.
These letters will enable us to more readily establish that the
facility operator had actual knowledge of the regulatory
requirements and the responses to the letters also will be
instrumental in cases involving false certifications. If receipt
.of the Section 3007 letter cannot be demonstrated, the facility
will not be included in our initial investigative effort, unless
there are false certifications of compliance that can be
documented independently.
C. Inspection of Interim Status Facilities:
Commencing in early December, NEIC will provide resources
for technical inspections at facilities that have been
targeted. These inspections will be closely coordinated with
the NEIC Special Agents so that once on-site inspections
reveal evidence of criminal activity, the agents will be
prepared to respond immediately, to obtain search warrants,
and to otherwise fully investigate the matter.
Although the criminal remedy may be selected in a particular
case, if that facility has failed to certify compliance and/or
submit a part B permit application and is continuing to operate,
. a parallel civil injunction against continued introduction of
hazardous waste into land disposal units may be sought. Such
parallel actions should be coordinated through the Office of
Regional Counsel, and must receive the concurrence of the HO
Office of Criminal Enforcement.
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We anticipate establishing an effective liaison with your office
to ensure that the Agency can rely upon our joint efforts in initiating
these criminal investigations. You can expect to be contacted in
the near future by the Special Resident Agent in Charge regarding
this initiative. We look forward to a productive relationship
in enforcing these crucial RCRA provisions.
cc: Richard H. Mays, Senior Enforcement Counsel, OECM (LE-133)
Frederick Stiehl, Associate Enforcement Counsel for Hazardous
Waste Enforcement (LE-134S)
Terrell E. Hunt, Director, Office of
Criminal Enforcement and Special Litigation (LE-134E)
Randall Lutz, Director, Office of Criminal Enforcement (LE-134C)
Regional Counsel, Regions I-X
Special Agent in Charge, Regions I-X
Jim Prange, Director of Criminal Investigations, NEIC
David Buente, DOJ
Judson Starr, DOJ
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