v: tun •••u •«ir,' r^uunm. trnininK. .imj «Hhr>r I ' ind -l«ffiiMiji(ri. •»V7 Aucnuriunon V i 42 a 42 u 4J- U 14 RCRA Compliance/EaforceaenC Guidance Manual 1984
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 Chapter  One
The Resource  Conservation  and Recovery  Act
                           NOT!

  Tb« mi aaModuMfiU u> Public U» 94-iM are shown as fol-
love Luro*** M *• omitted i* encloaed in black brackets: new
laaguagv i* «nnu«l in italic laafuag* in which inert is no chant*
i* (town in roma*.
  TSt 1N« aanndmenta (PuWk U* M-482). are shown u fofc
toem Umact oeMUasJ is struck through: new language it shown
i* ba>Mfac«. Ajawmlmenta m*eto by Public U* M-4«3. in* l'«d
OH Recycling Act of I Mo. ar» showsj M follow* New language ii
(town ia beldfact i/atfc. Language to be omitted i* shown in lntM-
fac* anal struck through.
AN ACT T«
               uvflnoJ «•* flnaan*!
            M* tualtum la* tlw
     :( tnaettd fr* .'A« S»«a(» a/ia Hniut ••/
    td Slau* of Amenta in C'«VT*« 'Uu
             TITLE II-SOUD W,\sTE UICPOSAI.

                Sutalillr A—<»«n«!ral Pm»i»uin!(
                       rnulting frem :ht indiutnal.  commercial, domtsuc.
                and othtr aetiviuai earned on in iucA anu:
                  Mi thai  while ch«  collection and  aupoul  of  wiid  waites
                ihould eenunu* to bt  pnmanlv :h« function of Suet. rt^:duvf<
                  .vr -^-..n - M. :,-.i  .•-"tiu.irtv  :i:ui«nju.tif  iiM ••iivirnnini-ntj.lv
                              AL flNIHHCJI
            a< Souo W*jrt.— The
                                         :"inu> »ith n-.p»vt to
  -tc.  .'
••ma «a
       !i  that ifwt continuing MehnnluKicjl nnvn-w .mil  .mprnvr-
    ment in mvihoa: ui manuloitunt. uavkuxmK. jnd mjr««un< .11
    Consumer proaucu has reiulurd m jn -M-r-imjununK  :M>.
    jna in J  chunice  in the characttnutm. l our .Vjtmn.
    tnd the impruvvmenu m  the >unOara 01  iivin* i-njor«l b« "ur
    aoouluuon.  nave  raiuired incr«u»ed industrial pmduvnun  in
    mee< our  needa. and have made innmjiji the ilemulicon »< nin
    of  highway*  and  u> mud  wane. >prci.ii  i.inK*n  tu
                nculih jnu rvuuire* J k'Draicr degree ol  revulatiun  than  dum
                nunnaznnloux -olid waste: and
                 • »i jaemativvii to «iistmg nwthods ol land duiwyeal must be
                developed 
                used are needlessly buried each year
                 •i) methods are avaiUnle to separate usable matertab from
                solid waste: and
                 •.I)  the recovery  and conser/stion of iuch materials can
                reduce the dependence of  the  L'mud Sum on foreiKn re-
                sources jnd reduce the deficit in its  balance of payments.
              •di CNKIU;Y.— The Congress linos with rnpvvt  to enrnry.  that-
                 'll solid wa>te repments  a potential  •aiun.K m' tulid :url. .nl.
                or gas that can be converted into *n«nry:
                  J! the need v«ists to develop  jlternative enirrvy xiun.-'-* fnr
                puolic and private  -onsumpnon m omer :ii rvauce 'iur  it-wnu-
                tnce on »ucn  >ources as pvtrolcum uruouits. natural cxv nuulv-
                ar and hydroelectric generation: ana
 RCRA Compliance/Enforcement
          1-13
Guidance  Manual  1984

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         texhnoiofjr ****** w P">duc* u»*bl* enerfy  from solid
  SK. 1003. Th* obj*wiv»a of tht* Act art to promoc* th* protae-
nan of health. and th* «nvinmm*nt and to conaerve vaiiubl* mat*>
naJ and tower ratoureai by—
      (1) ptwidiac tachiucaJ and flnancuJ aaantance to State and
    load govvnuMuia and inwnut* aftnciaa for the development
    of aoiid •>•***  nanafroent pians (including resource  raeowy
    aad  rtaouree  oaaaenraaon  syiutna)  which will  promot* inv
    urmejU aeiid WMU maaa«m*nt technique* (including  more ef-
    feetiv* omaixjaeoful am0c«tn*nti>.  n«w and improved m*th-
    oda of aoluction. separation. and recovery of solid wuu. and
    •JM environmeniaJJy safe diapoaaJ of nonreeoyerael* residue*:
      '2) providing training grania in occupation*  involving th*
    dawfn. oeomtiao. and mauiunanea of soiid waat* diapoaal sys-
    tem*:
      i3) prohibiting futun opao diunpinc on th* land and requir-
    ing the conversion of exiaung optn dumpa to facilities which do
    not poa* a danger (a tha environment  or to health:
      ••>' -*«ulating tht treatment.  storage. transoonanon. and di.«-
    -awl of haiardoua wa»l«a wnich h»»»  odvtrM vir«vu on h«uith
     •i ::uidrliniM  .>r  -./mi
                on, '.ranxport.  «piir.iin>n. -~<.-IIVITV.  .,mi  i:-oi>«.ii
                •ystcnui.
                 ic .» :iut:unal 'ifwurvh jnd  Ii'vi-ini^in-iii  ,i"»;»nn.
          ••* ino -
       •->'•' ';  inn rccyciinc ut «olia  waat^n  .intl <*nvir>r  >olid  «ru!t» manaavnwnl. rcnourc* m-owry. .mo  -e-
    Murc* >.-onMrv«iion tyiicma  onich prvorvt jnf nvw
•tructum .ind acuui^ition  tructurw
iinciudin»  trucks and  other  motor v«hic!es. and tractors, ennaa.
aod otfttr maemntryi necesaary ;'or tn* proocr utniiation and oper-
ation of th*  facility arttr completion 01  tne project: and includes
pralijBiaarr planniaf to determine the economic and engineering
tanbiiity and tha public health and sai'aty aapacta of the project.
tha enaiBeennf, architactunl. I*?ai. fucaJ. and economic mvtttiga-
tiona  aad itudiea. and any survey*, deaifna, plana. woricmr draw-
ind. tpaa/icauona. and other action nensaary for th* carryinf out
of th* project, and lO tha intwction and supernaion of th* pracaaa
of cairying out th* project to completion.
  !2A) Th* t*rm 'demonjtration ' maana th* initial exhibition of a
n*w technology proceu or pnetic* or a ugnuicanUy new conoina-
tion or ua* of tacnnolofio. processes or practice*, jubaequent to th*
d***iopm*nt  Mac*, for th* purpoa* of  aronnf tachnoloftcal feaai-
bility and coat etT*cti**n*aa.
  (3) Th* term  'dupoaaJ" mean*  th* diaeharf*.  dapoait. iojection.
dumping, spilling, leaking, or placing of any solid wait* or hazard-
ou* waat* into or on any land or water so that such solid  wute or
haxardoua wuu or any constituent thereof may enter th* -nvi.
ranment or 0* emitted :nto th* air or diacharged into any waun.
including ground watan.
  • 4i Th* term  'Federal agencv"  means  any department, agency.
or other inairumentality of the r"ea*rai Government, anv :ndrpend-
mt agency or estualiinment of :n» Fedenl Government including
jn» iJovernment curoor.itnm. und  :ne oovrnment ?nnt:.-if OfTic*
   '" The term 'hazarooua -vo.tr*   .-nraru a who.  «aste. >r .omojaa-
::nn uiXilia wnst*. whicn ivi'jusc "l'it.< tuuntity. .-onct-ntration. or
;nx«icji. ,nprnn.-ni. jr miixtiuua charactvrstics may—
      A/ '.3u.tr  :-r  The irrm  'haia.-dom  *a«ie generation"  means the act ur
proc*» 01 producing Hazardous wa>t*.
  <*> Th* term 'hazardcua wute management"  meuni the w*tem-
juc control uf the collection, jource separation, storao. transpurta-
lion, procnamc. trentment.  recovery,  und  diapoul of haurduuj
wnxtas.
  '^i For purposes -ji  Federal financial amiihinc* 'other than rurnl
communiuen  aaai*untt». tne  term 'implementutmn ' due* .im in-
clude  th* ocnuimlion. leaning, conntructiun. or modillcanon <>t ijcili-
ties or equipment  ur the .iciiuimtion. ieuainK ur imt>r»v«mt>nt r uian-
nmg or administration of solid waste.
  ilui Th*  term  "interstate  Jicenry ' mennx jn jK-ncv n( ;wn or
mor* municipulitm m ililTvrrnt -Si.iit- or :in :ik'«ncv i~i.inli>h»i nv
two ur mor*  3tatr!<.  with .luthuruy to  yrnvidi-  Mr :hu C'lispiMal]
manaftmnti of solid woitn .md servmi.' twn ur mnn- municiruintie
-------
 Chapter  One
                                                      The  Resource Cooseryatlon and  Recovery  Ace
  Sac, 1007. fa) ST*n*Brr.—Each officer or employee of the Ad-
      (U
      (2)
        i for or i
                 tar toastion or duty under thai Act: aad
             aay known financial inter*** in  toy
                                            • thi* Act
                                                    WOO 1C-
    piioBl	
sa*U, >~f»««i-f oa February 1. 19T7, annually file with the Admin-
       1 » ehiiau srarannnr •"~i*-ii'"t al] such inter set*  held by
          • or nindojee dwiaf the pfavtjilini calendar year. Such
         i thail be available to ttepubUe.
  (h) ACTION IT AaiamoTftATDa.—The Administrator shall—
      (1) act within ninety day* after the date of enartment of thi*
         (A) to dofiae the term "known *"--"•'  interest" for
        purpose* of tuboaction (a) of thia section: and
         iB) to eatthlith the methods by which the requirement to
        (He written  tutemenia nocified  ia nibsscucn >*) of this
        section will be monitored aad enforced, includine; appropn-
        au prevuBm for the filial by suca liZctn tad lapioyeet
        of such statement* aad the review by the Admiaittrator of
        such statement*: and
      (2) report  to the Cuncrsss oa June  1. 1978. aad of each sue-
    ceodiae. calendar year with respect to *uch disctoniret tnd the
    tenon* taken ia refmrd thereto dunaf the preceoinf calendar
    year.
  (c> EmtrnoH.—In the  rule* prescribed under ninsertion ^b) of
this  secoen. the Admiatatreior  oiay identify ieoaTic position*
within the Environmental Protection Acency wnicn are of a non-
poiicymakiaf nature and provide that officer* or employee* occuoy-
j>« such posinont ihall be exempt from the  requirement* of thi*
  'd> PWALTT.— i\ay  officer or employee vho i> rubject to.  end
kaawiacJy noioiei. taia eeeuoo «hell be flaed DOC more taaa 12^00
or Unpneaoed not owre taea one Tear, or both.
  Sec. 1008. (a) GutMUxet— Withia one year of enactment of tail
•ninn. aad from aatt to time t hereafter  the Admuuitntor ihall.
ia cnanemiuu with approonau Federal. SUM. muaiopmi. and in*
termuaiopeJ afenciea, aad ia ooneuJtaoon  «nth other interacted
pereooe, aad arter puMk IteennQ  deveioe aad pubiiah Mifieated
tuideiinm far eolid *«eu manafimeat Such inueiiiil cuioeiinee

                                                 of the level
     (1) provide a teehaical aad
    of perfbrmeaee that can oe attained by vanoua available toiid
    •reete  majiacement pracoeae liacludinf opermunf pracuceel
    which  provide for the protection of puftik health aad the envt.
    roament;
     '2) not later than two yean after the enactment of thia BBC-
    tion.  deecnbe  lr*»U af  performance, jiciudinj tpprepnau
    methode aad 'lignee of control, that provide at a minimum for
    (A) protection of public health aod welfare: >Bl protection of
    the quality of frouad  wmten  aad eurtace water* from l»a-
                              10

    chatoa; (O protection of the quality of turfaca waten  from
    niaoiT throufA compliance with tfTlutnt limitation! under the
    Federal Water Pollution Control Act. u amended: .0) protec-
    tion of  amaient  air quality throufh compliance  »nth  new
    aeuree penomaace tundardi or requiremena  of iir quality
    implemeatauon plant under the Cean Air AiX at amendeo:
    (E) diaeaee aad vector control: if) safety; and iC) eKheticx aad
      (3) lainnie minimum cnteru  to  be oaed by  the Statee to
    define tba» eoiid weete suaaftment practice*  wrucn COMB-
    tuu the open dumpiaf of totid waate or haanimu wmdo aad
    are to be prohibited under [title IV] wtttti* D of 'Ji* Act.
 Where tpprepnate. nch MU*ned ruidelinee ilao  ihail laclude
 muuarom information for nee in **—'-lire the t*^"*** location.
 deaifn.  aad  eonatructioo of f*nliTm aaeooated with wlid wane
.manatement precocea. iadudinf the canaidermiion of renonal. fe»
 (rapcuc, armocnptuc. aad climatic factor*.
  'bl  NOTTCB.—The Adminutnter ihall notify the Committee on
 Public Work*' of the Senate aad -Ji« Committee oa Interstate aad
 Foreign Com me rye of the Homo of Repreaencativei  a rvatonable
 time aetor* puaiiihinf any fuaeetea (uioeiinee Cpunuaot u> tma
 tecrion] or pnspourd refutation* undtr :ftu Aet if the content of
 «uch  prapoeed luoaud (Uidelinee  £.]  or prepaid nrjiuoxion*
 under tnu Aft.

 Subtitle B—Office of Solid Waete: Authohtiet of the Admiaiavmtor
           aad lauraccocy Coordlaatlnc Commiuee
  Sec 2001.  ia) OrrtCS  or SOUO WASTT.—The Admiruaxrator
jhall  cMabliah  ithia the Environmental  Protection  Afency an
Office of Solid Watte ihereiaaiter referred to at the  Office'^ to be
heeded by • BIM" -WMWM aa Aaeiatant' Admiaiatrator of the En-
vironmental Protection Afency.  The duties and retpontibiliue*
(other than duties and reeponaieilitiee relatinf to reeaarcn and do-
vehement) of the Adauaietruor under thia Act 'a* modified by ap-
plicable raoffaauauon planet  thai! be carried out through  the
Office.
  lb)  DrrtBAGlNCT  COOMMNATING  COHHITTU.-41) There  M
hertey oMaMithed aa Inttraftncy Coordinatinf Committee on
Federal ffitanrn Contervatio*)  and Recovery Acuvitit* which
theU  have the rneonsibilily for eoordlnatinf all activttiet dealinr
•itfe retwurrt contervation and ietu»ery from solid veete cmmed
o« by the Environmental Protection Afftncy, the Dtoartment of
Eaerfy. UM  Department of Coma*ern. and all other  FewrreJ '
trrnoes  which conduct tuch activiiie* purtuaat to :hit or any
other ACL  For  yuipoeet  of  thia subsection, the  term "mourn
eonesnaiien  aad recovery actmiiea"  thail include,  but not be.
limited to. all natarch. developmeni and demonsiration projects
on  riteuni eoneerrauon or tnertjy. or maunaL rvvnvvry from
solid  wmtle, and ail  technical or financial sssisrence for Slat* or
 RCBA  Compliaace/Eoforceaent
                                                               1-17
                       Guidance Manual  1984

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  Chapter One
The Resource  Conservation  and  Recovery Act
                             11

local planning for. or ImavstnentaUon of. projects related to re-
sou** iiHM*r»adon or energy or material. ie«o««ry  from solid
VMM.  The CosBmiuee shall  be chaired by the Administrator of
UM Environmental ProuctiMt Afeaey or such penea at the Ad-
miaMtrator may designate. Members  of the Coauuoee shall in-
dade reftvaeaiativas of the  Deaaniwenl of Energy. UM Depart-
oM*t of Coeataerce. the Department  of the Treasury, and each
other Federal agency whkh the Adawaistratnc determines to ha**
          or  resaoaeiaUteiee affecting resource eoasmaxjon or
  (2) Tho latarmiSBty Coordinating CoessaiHee shall Include ever-
sits* of Ite iMBiemetttaUoe) oT
      (A)  UM May  m»  MesaaraadM  of  Understanding  on
    limp BetBMry from Municipal SoJM  Waste betwm the
    EartroasBeatal Prataetiaa Agency  and  UM  Department of
       UM Mar 3*. IfTt lattncrwr AfrwflMnl bM*«*n iho
    Department of Commtrc* in4 UM En*tnMim«iiui Prowction
           oa UM ImpUnMnfit'nn of UM RMOUTM ConMrruioa
        tlttn'trj ACG ui4
      (C) t»7 jvbMqutnt afTMiatnu bftwtvn ih«M tftn«i*s or
    otiMr F«d«r>i «««nei«9 which tdrfrn* F«drr»i rnoum rcco«>
    try or eonMrruion
  (3) Th« laurmnncr Caordlnaiint Commitu* ihail submit to
UM C««CT«M by March I. 1981. u*  for rnoum racoMry and
iunaanatton activlUoj for UM En*ironiM«taJ Protoction Artncy.
UM Dtpartnxin of EntriT. UM Department of Conmwrc*. and ail
otter federal aftnoe* vtuch eoaduct inch acti*itiee.
  Sac. 2001 (a) Airrrnxurna.—(a earryiaf out thia Act. UM Adaia-
iatrator ta authonaad to
     (1) prvaenbe, IB cooaultatioa with Federal. SUte. and reffioa-
    al autteriiiaa, audt rvfulatiooa ae ar* neoeaary to carry out
    tut Aiaetioaa under thja Aec
     12) oonauit with or eachanf* in/ornunon  with other Federal
    aftaciea uadertaktnv maairh.  cirrtlopnMnt. denonatration
    ptiMetu. mirtiaa or invwetifationa relating to aolid waaci;
     (3) provide technical and financial aaanranra la Statei or r»-
    fMfial a«wnciea  la the  dewetopoMnt  aad  implementation of
    aoiid  waate planet aad  haaardoua  waate  naaaawnent  pro-
     (4) eonault with npnaiKafnea of (hence, induetry, airricuJ-
    ture. labor, environmental protection and consumer orfanua-
    tiona. and other poupa. aa he deem* advuabte; M*
                                         12

                  igl utilise the information, facilities, personnel and other re-
                sources of Federal agencies, including the National Bureau of
                Standards and the National Bureau of :he Census, on s reim-
                bursable basis, to perform research aad analyses and conduct
                stadia* and investigations related to resource recovery and con-
                srrreaoo aad to otherwise carry out UM Administrator s rune-
                dons under this Act; and
                  «) ta delegate la  the Secretary of Transportation the per-
                fofwatac*  of any inspection or eneorcefaent  function under
                tfcas Acs relating ta UM tranaportatioa of haxardoas wast*
                where each delegation would  avoid  mnsissssij duplication
                of activity aad would carry out the objectives of this Act and
                of UM Hazardous Materials Transportation Act.
              Cb)  RrrtBON or  RCGUIATON*.—Each  regulation promulgated
            under this Ait shall be nvieweil and. where accessary, revised not
            lea* frequently than every three yean.

                      aojowcs] aaujvaar AJTD  ooMnavATDst PAJYB^J

              Sac 3003. The Administrator shall provide  seams of personnel.
            including Federal. State,  aad local  employee* or contractor! 'here-
            inafter  referred  to a*  'Resource Conservation  and Recovery
            Panels") ta provide Fttbral agtncva. States, and local governments,
            upon  request,  with technical assistance on solid  waste  manage-
            ment, resource ieee»ery  and resource  conservation.  Such uaos
            shall include technical, marketing,  financial, and institutional spe-
            cialists, and the services  of such teams ihail be provided  without
            charge to States or local governments.

                          oaAjrr* roa DUTMHUD nu ooroaxL

              Sac 2004. (a) Gaujvr*.—The Administrator shall make svailable
            grants equal to S  percent of the purchase price of tire shredders
            lincluding  portable  shredders attached to tin  collection trucks) to
            those eligible applicants  beet meetins; criteria promulgated under
            this section. An eligible applicant  may be any private purchaser.
            public body, or public-private joint venture. Criteria for receiving
            gnat* shall be promulgated under this  section  and shall include
            UM policy to offer any private purchaser the fin* option ta receive
            a grant, the policy to develop widespread geographic distribution of
            tire sareddinc  facilities, the need for such facilities within a geo-
            graphic area, and the projected nak aad  viability of any such  v*n-
            tura. la the case of an application under this section from a public
            body.  UM  Administrator shall  first make a  determination  that •
            there are no private purchaser! interested in  •"'""g an applica-
            tion before approving a grant to a public body.
              fb) AimtoaoATiON.—There is authorised  to be  appropriated .
            1750.000 for each of the fiacal years i978 and 1979 to carry out this


                              UMMUHG Of CttTAIN OIL

              SK. MML ftr turftm »f 0/1* prseiue* of tan (thick rvam'rv*
            lie M*w/tef s/ nmmodittn, tutnartnf til >Ae// A» fnroMd as  laif-
                          ' r i/ it Avert 
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 Chapter  One
                                                    The Resource  Cooaeryatloo  and  Recovery Act
                            13

  •DONT POUtm-CONStRYX fUSOUKCK RSTVXH VSfD
              OIL n coujcnoN cc,mMS-
    	.<•*«  Th* Adauaaftrator shall traaatait to th* Coo-
    i aad ta* Prandaat. aot later than ninety day* after th* tad of
each fecal rear, a oomprah*a«r«e and detailed report oa all actm-
tic* of the Oflko dariaf the prenodlaf fecal year. Each «uch report

                   of epocuV aad detail uai*cu»«* for la* i
                     edacud aad aan*ud under thia Ace
                  "* **" *•*-'-•^~«"»'- /~W.I.K_^>. .. ,	
              of  mch  activities aad  proariBM ia ineennc.  th*
          _.>,Tim  aad tho purpooat  of tail Act  maoanrsrt
    	__i rj^ •*•* of ouch fecaj year;
     (j) i jBgaaury of —np*nr*li"C solid wojc* pruhlsm* eon/root-
    in* the Adaaiawtraior. IB order of priority;
     (4)  iwriminieixlirim* with reopoct to such  ieajalaaca which
    ta* *•'—•-——"- dooaw  aecaoaary or ricairahl* w aaiiat ia
     (S) «U ota*r iAfenuuioa raauind to b* fubmitud to th* Coo-
    cm* p>ji*u«nt to any othor provwoa of thi* Acs and
      j) to* Aduuaiitntor'i piuu for aetrritu* aed srofraau r»
    tpocxaa^ oaiid wacto duriaf ca* aa*t fiaeaj jraar.
  Sac. MM> /MX (a> Cawvui, AoatOfVtmATWN.—Thor* an au-
cfaonavd to b* aopropnaMd w ea* AdauniMnior for tft* aurpoa* of
ea/ryiaf out ta*  ptoruioa* «f Uti* An. Ci.000.000 for Uui nacaJ
                      30. 1977. t3J.000.000 for  ta*  n*c*J  jr*«r
                                                                                            14

                                                                           Subtttk C-HaartaM Wa«o MaaafwiMat
                                                                                      AND ufRNO or •^t-'riHwt W
eadiaf September JO.  1978. •* $42.000.000  for the fieeaJ
       •         30. 1979. I7HM4M for th* flocal rear «
                                            tndinf de
Sipteojatr M. 1IM. SM.OM.OM for th* fiacal year i
ber M. 1M1. aad tM.OMJO* for ta* flacal year eadiaf :
M.1M1
  (D) RBBOVBCI  RaoovnT AN* CowejajvATioi*  PANBJ.—Not lea*
taaa 20 parent of th* aawunt appropriated uader inhoemnn lax
or UMt.Ot» par flacal year, whichever la leaa. ihail bo uaod oaiy
          i of Beaourni Ftecnr«n aad Coneervaboo PBTM!* onab-
Uahad uador aaeuoa 2001 'iirrtitfliPt timvai npanaai iaeumd by
ouca paaoto ia emnruif out thaw Atacaoa* uador thi* AcU
  (c) RiOAjBom W**T«,— Not lost taaa 30 pmnt of th* amount
apprapnatod uador iuh»*rtiiMi (a> thaU b* uoad only for aurpoaoi of
                                        to tumiliiiii »a*m
carryvM out wbatlo C of thi* Act (raiatiaf
othor thaa soenoo 3011.
  id) STATI AND LOCAL Suwotr.— Not loa* ttaa a POT
of ta* total amount appropriated uador  thi* utl*. up  10  th*
iCKMUC autaoriiod in i«cuo«  «u*4(«NI). >>all b* uo*d only for
purpooai of lupport ta Stau. fttionai. loc*L tn4 inimiau «««•>
CM* i> aecordaiic* vtUi MibtiUo D u/ IAM Act jibar taan MCUOOJ
400WaX2) or 400P.
                                                                  Safe 300L (a) CkmBu KOS laomncAnoN M Ltfimo.— Not l«wr
                                                                 tha« ojajitatn OMB^I aA«r ta* data of ta* tnaetaoat of taw Art,
                                                                 ta* Adatiaioomiar jaaiL irUf aoae* aad oppormaity Cor public
                                                                 h»nnc aad after ceapujmioa with appropnat* Fodaral aad Stato •
                                                                 I»OHI i^ dovitop tad craouJo char-
                                                                 arm MM of haBBrdou*  VMM. aad for Uctiac hacwdou* vaaw.
                                                                 whioJl oaouid b* *ut|*ft  to tho piwioiuiio of tan wotaia, cakiar
                                                                 into oaoaont eaaxity, ytmmtim. aad dotTBdaeilitr in oatur*. po> *
                                                                 lanial for amtmuiapoa ia ciawo. aad other rtiattd £actor» racfa M
                                                                 flammaaUity, corra*iv*aam  aad othor hmrtmi* eaaracwrutica.
                                                                 Suea eruono aball  b* («*wod Araoa  tiaw  to ttaw a* ouy b*
  ibxl)  iMXTVKunoM  AWB LamiM.—Not  later taaa eighteen
swath* after the daw of eaactaeat of vaia tectioa. aad a/Ur aotic*
aad opportunity for public ^oanaf.  th* Adaiuietraior thai! pro-
•ulfBte reavlatiooa idena/ruif th* duraciemtica of haiarooue
watca. and lunnf parbcolar hatardou* waetes (within th* eaeaniaf
of wetion 100*Sa which shall be mbject to ihe provuwa* of thi*
suhetla. Such refulaaaaa  shall be baaed oa the criteria profflui-
fated under luhoecuon >*J and thall  b* rrrioad from tin* to urn*
thereafter a* may b* appropnato.
  (SNA) Norwithftandlnr t«* pr»»iakma of pancnph 'D of thai
mbosctlon. drilllaf fluida. produced  waters, aad other wmoBH a*.
nciated with the  txptoration. *e«eiopmetit  or production  of
crude  oil or natural r** or reothermal eaerfr shall be lohject
only la esialinf Stale or Federal renlaiary arofrmma in lieu at
luotitle C until at Icaet 24 month* after the dale of *nacutwi of
the Solid Waate Disposal Act A«ara«aiinu of I»M and after pro»
mnlrailoe  of (he r«f«Jations in accordajic* with lubparufnpha
(B) aad (C) of this parafrapa. It is the senee of the Contrast that
tach State or Federal proeraaM should lacluda. for wast* disposal
site* which are to be elossd. prorisiaaa reqauriaf at least the foi>
                                                                     (i) Tho idemifksUwa laroatft oirreyiat. plattlnc. or other
                                                                    •oamraa. lotdhar with f«cord*U*o) of Mkth information oti
                                                                    th* puWk rmrd. to a* la aooare that th* (oration where inch
                                                                    waate* are diapoaod of eaa b* locand in th* future: esrept
                                                                    however, that no Mich  tawwyinf. p4atUn(. or other meaaure
                                                                    Mtnttffiitf the location of a dlipoaaJ ill* for dnlllnr Haidi
                                                                    aad aatiniiiiil wa«m (hall be r**uir*d if th* dlatane*  (mm•
                                                                    the dtaawaa! ute  I* the Mrroyed or planed location to the •*-
                                                                    Mriaiid well i* lea* ihM two hundred lineal feet; and
                                                                     (II) A theamal and phytical aaalytia of a produced water
                                                                    aad a cwmpeoitlen of a drilllnr, fluid  luapocted  to contain  a'
                                                                    haiardau*  matenal.  with inch information to  b* acquired
                                                                    prior to clooure and to be plartd on the public record.
                                                                  (B) .Not later than  til month* after completion and iubmia*ion
                                                                of the MUdy required by tectioo MOOirmi of thi* Act the Admint*.
                                                                iraiar ihalL after public heannc* and opportunity for comment.
                                                                deurmiae tiiher to promulote reralation* under thu lubtiile for
                                                                drilling fluida. produced waien. and other wane* annriated with
 RCRA Compliance/Enrorcemeot
                                                              1-19
                                                                                      Guidance Manual  1984

-------
 Chapter One
                                                The  Resource  Conservation  and Recovery Act
                            u

the nptoraUoe, J*MMpm«nt or praduetkM of cr«d* oil or natu-
ral fa* or feethermai eaern or that toch refuiauoa* an unwar*
ranted. The Admiajetraiar thail pohUah hi* decoMMi ia the Feder.
           	apanied by aa apiaaatioa aad jujtiflcaUoa of
          i tor it Ia makinc UM deciwoa oader Uii* paratrapa,
          mmm *haU utlUae the iaformatieai developed or acca-
               11*> the *tady required under *ecUaa untmk
                       umll  traaamit hia derate*, alone wHh
                          (•  bath Have** of Coarresa. Such
                   i effect'eaiy  waea aathartud by Act of Coa-
  OKA) N*«lrwkh»taadJaf UM afvwmioa* of aaracraph (I) of Uu*
                     Uaied bat** (hall, except M provided i*
            i IB) of thai paraenpa. be tubiect only w rerulatioa
                     preriiiuae of Federal or Stale law in lieu
of (Mi MMtltie uatll at Icait us moatiM after ttM date of Mtbmi*.
••MI of UM appllraili *t»dy rewiree" to to eaadacted under MI«-
       (fl. (ax (ok  or (a)  of tecttaa SOU of Uu* Act aad  after
            of refuiauea* ia accerdaac* with MOoaninii* (C)
     (i) Fly *aa waata. bwttam **h »a«u. ii*i wmu*. and flu* raa
    0RM**9Oat CBfl^afOf WqaaWat ^VtMt^CatfJ pl^letlemnl^ la^9^*l tlM COfRvUaV
    Uaa of coal or other foaail fuel*.
     (U)  Solid  wa*t« from  UM  arOFBCtlaa. beneflciaiion. aad
    procaeunf of  oral aad mineral*,  iaeludinf phoiphat* rock
    aad or«rbard«a free* themjajiif of eraaium or*.

  fBXI) Owen aad) oaeraion of dtopoaal *Ha* for *a*te* listed
                (A) may b*  required by  the  Aomiauirattr.
                 i pimnih»d aader authority of *ocUoa OU of

     (I)  a* M dmaaeal  tttea far *BCB waata*  which an ta  b*
          l*> ideatiry th* (ecaattoaa of MMh (tie* (hrverh (urvey.
        •mtriaif. or iithar m*a»urm. lo«eth*r with reeordaiioa of
        iaformatioa oa  the pabiie record, ia aatun that the le»
                                                                                             16

                                                                 U nwdo of Men ample*, or noniiorinr and tntinr porformod. a
                                                                 copy of too rctulu «o«JI b* furnuhrd promptly to UM ovntr. op.
                                                                 mar. or aftat in enarft.
                                                                  (II) Any record*, rtporta.  or information okulntd  from any
                                                                 I if MB oador lubciaoo* if) (hall b* availablo to Ut* puMle. nctft
                                                                 taat •aoaj a  inewiaf laiiafaoory to UM  Adaiiaiatrat«r by any
                                                                                    rapona. or iaformaUoA. or particular part
                                                            thereof, to which the Adminiatrator ha* acecM under thu iiibpar-
                                                            a«raa« it awdo p«Mlc, vooM dlrulft iafarautloa «aUUod to pro-
                                                            lortMoi mdw toctiea I»M of ttUo II of UM Uarud SUMO Cod*.
                                                            UM AdaUniatratar ihall foatidtf  nich informaUon or pankniar
                                                            poitlta  ihoreef eon/Idem!*! ia actordanet  •ich UM purpowt of
 (O) to pi • i Mi f*ttrfr»l «ad
too: of
                                              *"d eoatooci-
                                         i»/uii«oii<>ii. 10 b*
  (UMI) !• cwMhMitef »r «OM)T ttMter inbocUoa (f). (•). (ok or
(»). of iittm MM of tM* Act. MT offlerr. tmmiaftm, or tulAor.
iiori rvfrwoMMJT* of UM birirMUMnui Protoctie* Acmcr. dulr
>• «nd eondwl moaitonnf md toiUnc end M
K«T» >eci» to «nd covy r»*ord» rttetinf to such VMU. Each «oeh
          
                                                                thorrty of Uii* Act. to prevent radiation  tiporar* •hich preaeaia
                                                                aa unriainiiabli  m« to human health from UM UM in roaetnn
                                                                Uon or  land  reciamaUoa iwith or without re*errutioa) of  (I)
                                                                Mild vaau from the rxtractioa. beaefleiadoa. and proeaaatnf of
                                                                phoeahaie roc* or (II) overhvrdea from UM mininf of oraaiom
                                                                or*.
                                                                  i IT* Wheaerer oa the ba*w of any information the Admiaiatra-.
                                                                tor eeterminei that any piraoa i* ia rioMtioa of any requirem
                                                                of Una labparvraph. the Adminiatntar ihail r*»« notice to
                                                                delator of  Ma failure to comply wttfi n»en requirement.  It rach
                                                                *ioube« atenda beyond the thirtieth day after the  Admintftre-
                                                                tar*i aeuHcaKon. the Adminiatrator may iaeae an order requirinf
                                                                compliant* within a ipecifled Ume period or the Adminiatrator
                                                                may commeace a ciril aedoa ia the United Stale* dlatrict court in
                                                                UM district  la which the rtolatioa occurred for appropriau relief.
                                                                InetadlBf a temporary or permanent injunction.
                                                                  (C) Not later than ita month* after th* date of iuhmi»»ion of
                                                                the appliraali  itudy reaoired to be conducted under luoaeetion
                                                                (0. (a), (o). or (p). of lectioa «OM of thi* Act. the Adminiatrator
                                                                laaiL after public neannn aad opportunity for comment, tilher
                                                                determine ut promaitaia reeulaUoaa under thi* wbtiUe for each
                                                                vaete lined in lubparafraph (A) of thia parafraph or determine
                                                                that MM* refulalion* are unwarranted.  The Adminiatntor thall
                                                                puMlaa  hi* deurminaUoa.  which (hall b* baaed oa  informatioa
                                                                developed or accumulated  punuant to (uch dudy. public  hear. •
                                                                Inga. aad comment, ia the F«deral  RrfiMer accompanied by aa
                                                                txplaaatioa and juiUfkatioa of the reaaon* for it
                                                                  let PtrmoN  rr STAT* Govwwoa.—At  any time irter the date
                                                                eicbteen month* after th* *nacunent of thi* title, the Governor at
                                                                aay Slate may  petition en* Administrator cp identUy or li*t a m»t«-
                                                                hal •• a haaardou* <*a*te. Th* Administrator (hall act upon such
                                                                peoboa  within ninety day* followinf hi* receipt thireof aad (hall
                                                                notify the Governor of (uch action. If the Adminunrator dame*
 RCRA  Coopliaace/Enforceaent
                                                          1-20
                                                                                       Guidance  Manual  198A

-------
 Chapter One
The Resource  Conserve  ion  and  Recovery  Act
                             17

such peatioa because of financial flsoaJderanone. ia providing such
notice  to the Governor he  shall include t statement cooceniing
sucht
    fTAjrataaa Amjbuu TO CDOBAToa o* m>i«inrn»

  Sac. 3001 Net later thaa etfhteee moeths after the data of the
enactment  of COM  secooo.  sad  tAer aouce and opportunity for
pualie hearing tad  tAer eoosultauoa  «nih  appropriate Federal
tad Stan agauuea. the Administrator thall pronul«aia refuiaoone
—..1*1..^.-^ fe^ ttaadarda, applicable to taaerateri of hazardous
• eats i^~»«fl~< or listed uador Out subdue, as may be oaeosaary
to protect  huaaaa  health  aad (ho environment. Such standards
shall estthtiah requirement* raepeetins;--
     (1) raoardfceepias; pracocae that accurately ideatir* the quaa-
    ritie* of such  hazardous waste generated,  th*  coastituents
    thereof, which tr» "!«•">••<« ia quantity or ia pocoauai harm
    to human  health  or the »nnroaa««n.  tad Lho dijptaiuoo at
      12) labeling pranicee for aay containers uaed for the i
    traaaoort.  or -I'T~-1  of tuca hazardous waste lucn aa w\il
    identify eorurateiy such waste:
      (3) uae of sppropnaie coatainen for such  hazardous waste-.
      141 funuaning of information oo the general chemical cempo-
    noon  of such Hazardous waste \a persona transporting, treat-
    ing, stonag, or disposing of sucn wasiea:
      ij) visa of a maauest system  and  any  other  reasonable
    taeaas neceseary  ta assure that all such hazardous waste gen-
    erated is designated 'or treatment,  storao. or diipoaal in. aad
    entree at treatment, storage, or  disposed facilities i otter thaa
    faalifiee oa the  riminewj where the  waste  ia  geaerated) for
    which  a  permit has been iaaued is provided ia this subtitle
    C; sad], oraunuant to taU I of tag  Mannt fnueaon,  Ae-
    *oa*rA and Sancruana Act itl Slat lOiit and
      16) subauBBon of report* ta (he Administrator (or the State
    agvocy ia aay case ia which such  agency cames out aa author-
    izad permit program  pursuant to  this subtitle) at such times at
    (he Administrator tor the State  agency if appropriate* deems
           . toranf out—
         (A) tho quaaunot of haxardout waato idoauAod or liatad
        nador tha auautla that bo ha* (•aoratad dunaf t particu-
        lar tuBO ponod: tad
         iB) tho diapDtitioa of til haawdouo vaato reportad uador
        auaparafrapa IAX
             AWUCABU TO TtAM
                                      or icaAaaoui w
  Sac. 3003. it) 9r*j«BAaja.— Not laur than tifhttoa rnootht tftor
(ho date  of enactment  of (hit  tocuon. aad tAer opportunity for
puaiic hoanno. the Adraiautraior. after coniuitauoa «nth the Sec-
retary of Traaiportauoa and the SUfaav thail promulfate recuit-
tiant oMabuahmc luch itandarda. applicable to trantporwn of has-
ardout wane idenuTied or iuted under (hit tuautle. ae may be nee-
eaamry ta protect human health aad tho eaviroameac Such naad-
            srds shall include b<
                  (1) reeerdkoe-.
                ponad. tad the-.
                  lOtraaaooru
                  (3) mmpiiaiy
                boa 30Klt>. ae
                  (4) tnaaaort
                the chipper dr
                holding t pen
                tiOt I of lAe i
                        10»]
                             18

                        I not be limited to requirements respect-

                    4  concerning such hazardous  wests  trans-
                    aurce aad delivery points:
                    n of such waste only if property labeled:
                    nth the itinnifesi ijnum reterrea to in see-

                    an  of all  such hazardous waste only to the
                    nacmenc storage, or disposal faculties  which
                   nates oa  the me ni feet form to be t facility
                    issued under this subtitle (1, or pitnuoni to
                   •vie yVoucriOJV AesearcA, ana Sanctuanes Act
WSTAtTOH.—In  C
under this  subut
Traasportttioa A
the reirulauons p*
title] section shs
and the regulttu
make recommen
ing the regulatb
Materials Trans
                               Wrm  RaouiAnoM or SecuTAaT  or TBANB-
                                of any haxardoua weece ideaufed or liatad
                               which  it *UD)e« ia the Haaraoua  Matenaia
                               .88 Slit 2116;  49  U-S.C  1801  and  foilowuir.
                              lulcawd bT the Administrator uader thit (tub*
                              * eoniiatent with the reqiureaMatt of nich Act
                              thereunder. The Adainawrator ia authorized ta
                              ions to the Secretary of Traiuportation reepect-
                              of nich  hazardous waste uader the  Hazardous
                             -tauon Act tad for addition of material* to be
            covered by such   -

              rrAMOASM **:  .-AtLI TO OWNOS *NV OrtBATOBf Of HAiAaeOtM
                   WASTB T  VTMBfT. STOtACC. *NV PBCTOtAt

              Sac.  3004. N.
            actment of chi:
            and ailer canai
            the Admiaiatr
            performance >
            ibes for  the*
            identified or !
            tact  human
            tiaadardt th*
            la Mica  itai
            facillUe*  ane
            Uo«i  of Mich
            aot be limit*
                 il)  ma
                liatad w
                at  (ha e
                treated.
                 (2)  at
                eomplit
                30025);
                 (31  tr
                by  tho
                aad or:
                 (41  (.'
                ater ^ian tifhteea moaths after the date of m-
                icuon. ana after opponumty  for public heannp
                uoo with appropriate Federal aad Slate agenda*.
                r shall promuifaM refuiauon* ontbliahinf tucn
                dards, tpplicaale ta ownen tad openton of facil-
               itmtnu  iurt|«.  or  dupoael  of  hazardous waste
               •d jnder this subtitle, as may be  neeeaaary to pro-
               with the  manifest ryitem referred  to in  section.
             ment. noraf*. or diipoaal of all such waste  received
            Uity pursuant to such operating method*, cechniques.
            ices aa mav be satiafacury to me Administrator
            location, desifn.  and construction of such hazardous
            atmenl. diipoaai. or suraf* facilitie*;
 RCRA  Conpliance/Enforcemeat
          1-21
                       Guidance  Manual  1984

-------
 Chapcer  One
~rne  resource
                             ZT

   shall take effect.aa ibe dat* *is month* arter
th* data of promulgation thereof 'or ni nontM aiUr in* data of
revunon ia the CM* of *ay refutation which ia revised  aft*r  th*
data required for pramula> shall b* allocated among tn* Stale* on tn* Mti* of
regulation* promulgated or th* Administrator,  alter consultation
with th* States, which take into account, the extent  to which has-
araou* wait* i* (*n*raced. transported,  treated, wond. and  dii-
poaed of within men state,  tn* ntent of npoeur* 01 human beine?
and the tnvtronment within  lucft  State  :o such watta. and such
otAer facton as the Administrator deems appropriate
  id ACTrvmtS l.^CLLUtO.— Slat* haiardous wast* provruns for
which tnnta mar b* mad* under at mar include 'bui
thall not be limned io> planninf for  hatardnut VMI* tr**im«i«u
itorM* *o»ided
                with respect to Slate programs under subsection >*r.
                  12) the funds allocated under subsection (c) for  grant* to
                State* under this section may be used br '-he Administrator
                for carrying out such program in such Stair and
                  13) no further expenditure mar be made for grant* to such
                State under this section  until such time a* the Administrator
                determine* that such Slate is carryint out or will carry  out.
                an inventory program which meets  the requirements  of  this
              Ic) GaUKTS.—<1) Upon receipt of an application submitted br
            anr Slat* to carry out a program under this section, the Adminis-
            trator may make pants to the State* for purposes of carrying out
            such a  program. Grant*  under this section  shall be  allocated
            among the several State* by the Administrator based upon tuch
            regulations a* he prescribes 10 carry out the purposes of this sec-
            tion. Th* Administrator may make rranta to any State which has
            conducted an inventory prnrram which «ff«ti»ely earned out the
            purpose* of  this section before  the date of the enactment  of the
            Solid Waste  Disposal Act Amendments of 1980 to reimburse such
            Stale for all. or anr portion of. the costs incurred br such State
            in conducting such program.
              <}) There  are  authorised to be  appropriated to carry out this
            section S20.000.000.
 RCSA Coopliaoce/Eaforcenenc
           1-26
Guidance  Manual  1984

-------
  Chapter One
    The Resource  Conservation  and  Recovery Act
      (C) aaaeu oraaicipaiitiaa within tht Stale  in  developing
    plane. profTvam. tot project* u> conserve resource* or reeov-
    v eaerrj and maienala fro* municipal waste: and
      (O) coordinate the mown eooaervatian  aad  recovery
    ptanainf ander ra»**ra«T*ph  ih* rraiwuloii and otaMUhRwnt of prieriUa amonf
    vajrt at eomorviBi rawer or ma«naJa which contnbuu to
    •Ju w«au itrvmm:
      ' E) eomparuon  of th4 tyiaiirt total eeita b*twt«4inw. ..iciuaint  auiinni prmcima. umniponaUon  rtquira-
     ••ii«. r)f .(onrt aiffleulUn.
 :-.iv.-.   -uyirt ana  i«aJ»«« ihaJI aoo includ* nudic* of other
  •Ten «l stiu ttfM tttmtttrl ui4tr MIJ imttitlf m»i ine(*4*. at
,11 tyutu af tin StfU. fr»*iti»»i t» ftrrj »»t nek if Hif f*U»*inf
      ' It £»n*r*tfm*mt. tt Uu mfjimtm tittnt ftttiU* «/U nit-
    tiittin MIM Ott fntntlmu •/ tkt ?
til it
      / J> /«/«rauAf (te ^Mir •/ /A* un «/ rvcftM fit
      lit IttaMuAnwiU «/W imf4*mt*uti»* •/
    i«f any /MrvaM/f Ucttuu* tf ftntiu tu4
    i»A»r» «»»r»»n«f«. a/* muufntti t» tumrt tltui
    /A* MVI/M
. I/ID ptaN f««Jni//fd under rAi* MM* «*/•>* /A* date •' '/U
u/ tlu (/wd 6»i/ Httftlinf Act tt /*M M«V *• •a«A datt tt iueludt aa§
rtftmi tt in tMit l«*MCtl«l.'

              SK. 4004. (a) CVTBUA roa SANTTAST LANOPIUA—Not later '.Kan
            one year aftar th* date af enactment of thu section, after consults-
            boa with tha States, and after none* aad public hearings, th* Ad-
            ministrator shall promuigsi* rrgulatxm* containing criteria for de-
            caramiag  whkn facilities shall be classified aa sanitary  land/111*
            aad which shall be claaaiflarl aa open dump* within the "««•"'"* of
            thia Acs. At a minimum, such  criteria shall provide that a facility
            mar be Haaaifl«rt aa a sanitary landfill aad not an open dump ooJy
            if there ia no raaaooabl* probability of advene effects on health or
            tha environment from disposal of soiid wa*ta at such faoiity. Such
            raguiationa may provide for th* rlaasiflrannn of th* type* of sani-
            tary landfills,
              ibl OavoaAL Rcqunun To Ba at SAXTTAST Ltmntu. ETC.—For
            piirpoaaa of complying with section 4003(2) each State piaa shall
            prohibit the establishment  of open dump* and contain a reouire-
            m*nt that diapoaal of ail solid wan*  within th* State shall be in
            ramplianr* with such section 400X2.
              (O E*»aui»i DATS,—Th* prohibition contained ia aubaactioo 
            shall cak* effect oa th* date su month* aftar th* data of promulga-
            tion of regulation* under subsection ia* or on th* data or approval
            of tha Stata piaa. whichever ia later.

                             UTCBAWMO or or*N OVUM
         i» Imfai le>*w»e»w ft I _
  i*» Sax. 4MS.  (a) CXoauto oa UTCBAMNO or Ewsrmo Orvj*
BUMF*.   >•»  Upon  promulgation  of criteria  ander  sec*Jon
IflOKaXJ), any  aoiid  waste management pracuc* or diapoaal  of
aoiid watt* or hazardous watt* which constitutes tha open dumping
of solid waata or hatardou* waata ia prohibited, except ia the eaae
of any practiea  or  diapoaal of solid w*jt*  under a  tiawtabl*  or
schedul*  for compliance  aetabiiahed under  thia  section. For pur-
poaaa of complving with asction 4003(2), and 404K3) each State
piaa shall contain a requinflMat that all esiaong diipoaal facilitiea
or niaa for solid waata ia such State which are open  dumpa listed
ia th* inventory under subsection (b) shall comply with such coeaa-
ures aa  may  be  promuigstad by th*  Adminiatrsior  to  eliminate
health nasards and minimise potential health hasards. Each tuch
plan shall eataMiah. for any entity which demonstrate* that it has
i unaiilarail other public or private alternative* for solid waata man-
agement to comply with  the  prohibition on open dumping and  i*
unable to utilise such alternative*  to  so comply,  a  timetable or
schodul* for compliance for such  practice or disposal of solid waste
which spacifl** a schedule of remedial measure*, including an en-
forceable sequence of  action*  or operation*,  leading to compliance
with th* prombition on open dumping of solid waste  within a  ree-
sonable time < not to exceed 5  yean from the date of publication  of
tee *****>» «*» m*«MM*M criteria under .tection
 RCRA Compliance/Eaforceaenc
             1-29
                           Guidance  Manual  1984

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  Chapter  One
The  Resource Conservation  and  Recovery  Act
                              3S

   IwvefToav.—Jfc» To assist the Suits in complying with we-
ilo« 4003.'3). not laur than on* year after promulgation of regula-
tions uaoer MCUOO «00«t. the Administrator, with KM cooperation
of the  Bureau of Census shall publish aa inventory of all disposal
facilities or sitaa in the United States which are opea flumps within
tha assuuag of taia Act,

 MOCBUBB ros) OCVBATMIMT AND tMnanmATioN or STATB ruu«

  Sac.  4008. (a> IMXTOTCATIOK  or  RSJOIONS.—Within  on* hundred
aad eighty daya after  puhlirarinn of  fiudeiinoa under  Mction
4002aj ireiaoag to idmuttaaiioa of regional Uia Government of
each State, after ooaaulutioa with  local elected officials, shall pro.
Bulgaie regulations  baaed  on  suca guideiinea  identifying the
boundaries  of taeh ana within the State which, aa a  result of
urbaa  concentrations. Mographic conditions, markata, and other
factors, if aopropnata tor carrying out regional solid wait*  man-
ageoeab Such regulations may be modified from uma  u>  tima
i :daatifyiag  addi&oaal or duTereat regions) pursuant to such guide-
     IMMTOTCATIO* or STATT AKD LOCAL ACIKCIBS AND RBFONSI-
       .— 1) '-ViOun ana nuadnd AOd eighty aayi aiur *.ht Govtr-
nor promulfat** r«
v*lop tha atata plan and idanafjr ona or tnor» aavaciaa to unpl*>
mtnt such  plan, and 18) idwntify which  solid waaia (MMM* mma.
aavmani aetiTititi  vrilL undtr juch Stata plan, b* plannid for and
camad out by tha  Stata and which such IMMM manafcnwat ac-
UrlOaa will, undar  such Stata plan, ba  plannad for and camad out
by a rational or local authority or a  eomotnation  of rtfional  or
local and Stata authoritiaa. If a multi-functional rafional agency
authorised  by Stata law to conduct solid  waata planmnc and man-
afanaat itha OMmbtn el which a/a apputniad by tha Cowmen la
in tsaatatica oa tha data o/ tnactmant of :hia Act. tha Gartner
shall identify such authority  for purpoaaa of carryinc out within
such rtpon dauaa  (A) of thia paraaraph, Whera faaaibla. daaupia-
tioo  at the agency  for the affected ana  detifnaud under section
208 of the Federal  Water Pollution Control Act 186 Stat. 339) shall
be eonaiderod. A Stata agency identified under thia paraanph snail
be establiahed or deaifnaiad  by the Governor of such  State. Local
or regional  agencies loenufied under thia paragraph shall be  com-
poaed of individuala at leaat  a majority of whom are tlecttd  local
offlnala.
  12) If planning and implementation  agenciae are not identified
and designated  or established aa required undar paragraph ill for
any affected area, the governor shall, before the data t«o hundred
and seventy daya after promulgation of  regulatwna under luheir
uon ' a), establish or designate a Staw agancy to develop and unpie-
ment the State plan for such area.
  •ft IfrrtBSTATi RtciON*.— i) in tha caae at anv re«ion which, pur-
suant to  the guidelines suoluhed by the  Administrator under MI--
tion ••OOttai' relating to idanuricauon of  regional, would be located
                                      36

        in two or more States, the Governors of the respective States, after
        consultation with local  tlectad aificiala. shall  consult,  cooperate.
        and  taiar  into  agreements identifying the boundaries  of iuch
        region pursuant to subsection iat.
          121  within one hundred aad  tighry daya  after an  interstate
        region i* identified by agreement under paragraph il). appropriate
        tiectad  offioais  of gonenl purpoaa  jmts of local  government
        within such region shall jointly establish or designate an agency to
        develop a plan for such  region. If no such agency is established or
        daaignatad  within such  penod  by such officials, the Governors of
        the respective Statse may, by agreement, establish or designate for
        such purpose a single representative organization  including elected
        officials of general purpose units of local government within iuch
        region.
          ,J) Implementation  of interstate  regional solid waste manage-
        ment piana shall be conducted by unila of local government for any
        portion  of a region  within their junidiction. or  by multijunadiC'
        tional agenciae or authorities designated in accordance with State
        law. including those designated by agreement by such units of local
        jovemment ibr such purpoae. If no  such unit, agancy. or authority
        :» so desumated. the respective Governors shall  designate or estab-
        lish a  single interstate agency to implement such plan.
          <4> For purposes of this subtitle, so much of an interstate  regional
        plan aa is earned out within a particular State  shall  be  aeemad
        part 04' the State plan for such Stata.

                  «movAL or STATB PLAN; moAi. jjgart.nct

          Sac. •UK/7. iai PLAN A*»aovAU—The  Administrator shall, within
        lu months  after a State pun has been submitted  for approval, ap-
        prove  or disapprove the plan. Tha  Administrator shall approve a
        plan if he determines that—
              11) it  meets the requirements of paragraphs 111. .2).  >3). and
           iS) of section 4003: and
              '21 it contains  prevision for revision of such plan, after  notice
           and public hearing, whenever  tha Administrator, by regula-
           tion, determines -
                 i A) that  reviaad regulations respecting minimum   re-
                quirenenta have been  promulgated under paragraphs >H
                r
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 Chapter  One
                                                      The  Resource Conservation  and  Recovery  Act
                             JT
rial aaeastanee under thia subtitle, and make grants to such Suu.
if such SUM and local and regional authorities within  such Suit
have complied with th* requirement* of section 4006  within :h«
period  required under men section ud if nidi Suu ha* * Suu
plan which  ha*  been  approved .by the Admiaocrator  uad*r  thii
       -
     Tha Administrator snail appprov* • SUM application for fV-
    ul •Trr*-— under uu§ cuoml*. and make gnaw to such
SUM.  far ilacal vaan 19T8 and 1979 if  th* Administrator deter-
mine*  that th* Slat* plan continue* to b* eligible  for a
               d t20.000.OM
for fiscal rear 1182 for purposes of financial aaaiaunce to Jutes
and tocmt refional. aad iauntate authonuea for the development
aaid  implemefiiaitos)  of plaits approved br  the  Adsninistrator
under  thia MiatiUe (other  lhaa the  aroviatoaa of svch  plans re-
ferred  to  ia section  WOKb). rttalinc  to reaaiaillly planaia« for
municipal watte cnern aad maunais eonaervatioa and recovery*
  'iJAi The Admmiatrator  ia suthoned to provide rmancial janav
ance to Suua.  couniiaa. nuAicipaiitiea. and iaMimunicipal acen-
eiee and SUM aad local public solid warn maaaajeraent authontiaa
for impletBenuuea of proarama to  provide solid waste manafo-
neat,  leauuna  ieio»eiy. and roaouree eonMrvation services and
haaardoua WOJM manapnenu Such aaaiauno* shall include sanat-
anea for facility planning and feanbtliry nudiea: expert eonaultav
tioa: survey* and analyea* of market need*: marketing of reeo»ered
raaourna;   technolofy aaaaeamentK  legal  Maenaea; conatruction
feaaibility itudier source teparauon protectK and fiacal or econom-
ic  mveatigauon* or studies: but such laautenc* shall not 'include
any other element of  construction, or any acquisition of land or in-
terest m land, or any subsidy for the price of locovered reaounca.
Agencia* assisted under this subsection shall consider euattng smid
waau managmenl and hazardoua  waaM management atrvicea .ind
facilities a* well a* facilities proposed  for construction.
   Bl An applicant for financial assistance under thia paraariPh
must agree to comply with  reaped to  the project or program assist-
ed with the applicable requirements of section 400S and Subtitle C
of taia Act aad apply applicable solid waste manag*m*ot practices.
method*, and level* cf control constsunt with aay rudeiioes pub-
lished  punuaat to sscnoo 1008 of thia Act. Assistance under thit
paragraph shall  b* available only  for program* certified by the
Suu to ba conaiaunt with any applicable auu or araawio* solid
waau cnaaageoeai plan or program. Applicmata for lechnwal and
fln*anal aaaiaunr* ander this section shall not preclude or fore-
doe* coasidcraxioa of programa for the recovery  of recyclable
iwaishals  thrwagh sow** Mparalio*) or other neeurts recovery
Ucaaiawav
  (O There an authorised to be appropriaud S13.000.000 for each
of th* flacal yean 1978 and 1979 for purpose* of this section. Then
are authorised u be appropriated tll.MO.9M for flacal year 1*90,
tIO.OM.MO far flaeal rear  1981. u* tIO.000.OM for Oacal year
I98S for purpoee* of this paragraph.
  (3XA) There ia authorised  to be appropriated for the fiscal year
beginning October 1. 1981.  and for  each fUeal year thereafter
befon  October 1. 1984. t4.0M.OM for purpoesi of making crania
u SUM* u carry out section 40031 b). No aaaonni aaay be appro-
priated for inch purpoee* for the fiscal year beginning M October
1. 1984. or for any fiscal year thereafter.
  (B) Aseiaunce provided by the Administrator under thia para-
graph  shall  be used only for (he  purposes specified  ia section
I003(b). Such assistance may not be used for purposes of land ac-
quisition, final facility  design, equipment purchase, cooatructtoa.
startup or operation activities.
  (C) When  appropriate, aay Suu receiving aatistanre  under
thit paragraph may make all or aay pan of rach assistance avail-
able ia municipalitiei within (he Stale u carry out th* activitiee
specified la section 400* bMI) (A) aad (B).
  'bl STATX ALLOTMCNT.—The sum* appropriated in any fiscal year
under  subsection 
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  Chapter  One
The Resource Conservation  and  Recovery Act
bt beted upon tbt rttpoaaibilitiai at the rttptetn* parnat u deter-
omed pursuant to teeuoo 4006AL
  id) T*E»nau AjanTAUcm.—<1) Th« tdminittrator may provide
..-fc.i^i MBauaeo w Suu cad local govwremena for purpatat of
deweiopuig tad implementing SUM plan*. Technical aarbKanct re-
(parang naeuret  i«ui»«u  aad  aonewrration  0*7 bt  provided
lAnufB retourct recovery aad conoerrmnon paaafe. etubluhed ia
(to Environmental Proucoaa Agwacy under tubatle a co taut*
cat Stau tad local govtrnmeatt with reepoet to particular rcaource
recovery ud  eooMrrauan  project under  Hnaadenfinn  4ad to
evaluaM their eflecs oa the SUM plaa.
  (2) la carrying o«» tabi lahtartlon. tat Adawaiatraur it author-
bad to provide technical *t*iiftare ta Suua, moaiateJlUe*. re-
gjooal authoriilea, aad latanawaicipal ageoec* iiooa  request, w
•MM ia the removal or nMjdl/lcatioa of legal lattiwiional. aad
OCMMOU* uafwdlBMnu whiea have UM effect of inpeding ihe de-
tetoftteat of rr«MiM >»d faciJltl«i lo racartr tflcrfT «ad m«un-
tfc (r«ai  amaicifaJ  »•»!  or  to  maMrri OMTI* or BMUhiJ*
vhka coatnaiiu to ta« WMU  MTUA.  Soeh iapodlnunu  mar
     (A) law. nfvlatioas. «ad peUcic*. indudlnc SUM Md loemJ
                policNi. which era  not  fsvorkM* to  rnoarr*
               and r*co*trr pollcic*. irtttim. and faetlitim:
     (B) iaipodlaMnu to UM flnmnciof of faeUiUa la cotiMrrt or
    rwaxw i»«tp *«d —-—--'- fro* miiaieiaal wicu through
    th* tztrn** of SlaM  «ad locmi •utlMTttr la IBHM nvtniM
    •aadi tad tfeo UM at SUM and local ertdlt uitotmarr and
     (C) laiaodlaiinii to i»Mlciirluii«i arrmaftfwnu iMcoaan to
    nartimirt pre)«ci> for  (bo tuiiaii mlu« or iwnMiy tct aad to ••dor-
              octtrttta.
nwooi «nMid« tftkiuemi *mUJ
                               tf SaUM » auu/ ta (A*
(ted*
                       o/ aavd M& 5ocA
                   ,
       v/UcA «/» »•/ /•••>•*<» M (a* fttftUaf •/ aW ««i«
  (•) It anil CoMMVNmm-4 1) Tho Admiaiocraur. ia eaopwmtioa
with SUM aad loeal offieiaia. ihail <**»* MMMMM idoatiJr local
            withia UM Uaitad SUiai hW WM^ •
                        , >« (A)
                                      a (olid WMM dbpoial
facilltr (I) whien it owned br in* unit of local fwvormMM. (ii> for
which aa order hai b»n iamed by UM Suu U ccaat receiving
wiid WIM« for treauneni. ttoracv. or dUpoaat and (ill) which  it
rabiect to a 3uio>aae*o»ed cnd^ite reervMioii plaa. and *» (B)
MM* kwj* which art locsud o*er aa aquifer which it UM tonrce nf
drinking water for anr penoa or p*Mk water ijnteai and whKh
                                    40

        KM athout tnviromaoaui probltm* resulting from the dispoaaJ of
        men ttiid WMU, including pottiblc methane migntlon:
          12) There U aiuhacuod to be appropriated  to the Adouaixrator
        C.500.000 for teeft W ia> MM *«* *>4 Ms» the fitcal rev 1*80
        and IIJO*.00« for rarn of the rteeal rean IMI and 1M2 W Bake
        fimaa to bt ueed for *• (eeveiewM mftt'imim, «» .
        containment aad M
        .____... _ ^^.......^ of *olid watu located at the dispot.
        al sius referred u ia paragraph (1). Not more (baa oat "~"•"••-•-
        ty ia any Suu shall be eligible for graatt under tbu paragraph
        aad not more thaa one project ia any Suu shall bo eligible tor
        such graau. No unit of local government thaU be eligible  for
        grmnu under this  paragraph  with respect to  any uu which  ex-
        ceedt M acre* ia sisa.
          lO ASSISTANCE TO MfNIClPAimCS FOR E.VUCY AMD AUTCBI-
        ALS COMbtKVATION  AND RlCOVKHT PLAMNING ACTIvmBS.—' 1)
        The Adrnmiiirator i* authoriaed to make rrantt to municipalitin.
        recionaJ auihurttici. and iniermunicipai agenciet to carrv out •«•
        iiviiiei dnrnlxd  in tubparamoht   «hith »t>
        aiicadon ha* Men jpprpved 'i» ^he State jnd determined  V/ (be
        scat* to be rnnaisieni with onr State plan approved or «iibmiited
        jnder Uu* «uotiUe or any utiier appropriate planning earned out
        ff» -he Sut*.
          i'i\ There i* luithnrised to  be appropriated for the fi*col rear be-
        tinning October I. l»8t. and for each focal year thereafter Before
        'Mooer 1. ;>?«. M.lMW.Ooe for purpa*** of making gnuiu  to .nu-
        nieipajliief under this lubiection. No. amount may be ipprcfiri.
        ated for such purpoMi for (he fiscal year beginning on Oetuoer I.
        UM. or for any n*cal rear theret/Ur.
          13) AaMttaac* provided by the Adminittrator under thia lubtec-
        lion iball be uaod only for the purutni ipeciHed  in oaragraph
        11). Such aaaiatance may not be uaed for purpotu of land acnuui-
        Uon. final facility design. *«|uipmeni purchate. eoattruction. n*n-
        up or operation aciiviiiee.
          if)'  /tswrrocr TO ST4Ta nit Dnc*jmo*4*r PMO&UM nit
        RXCYCUO Oil.-*II n* .•le'auauftwter «•• mutt rruUt t»  Stttn.
        ultiek  Ittft i jitact ftt* •tfnti* tuteVr MCtiM 4097, *r i»Aic* Aac*
        imtmittHl e Slut* fi*M ftr entree*/ wulrr «*wA ttttifm. if imeh flan
        MrtM** (A* durrvtitMr* fnoaifJU dtttnbr* i»  ttrttt* 40UIH.
        Gr**tt m*4tr Out MOMrfion ikaU oe ftr pmrfftn »f euuMnf (Ae
        Sift* IM nrryutr imt lueM ditcntim*rt tnvitinu. .Ve frvU ivtdtr
        Uu» Mteerftee mmf to tuH  for etMCncfi'M er f»r (Ae ecfeuito/i
        e/ (aad er ffaiawewt
          <2> Crvttt Moer Otis ia*e*rfie« *Attf *e »Uxt*4 tm*i* Me 5ai
  RCRA Compliance/Enforcement
                                  Guidance  Manual  L98A

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  Chapter  One
                                                    The Resource  Conaeryatioo and  Recovery  Act
                          41

11) ,Ve trtmt MV it atealf aaaVr flUf letaii'rtM aoiau aa
       '   i teeeuft**1 <*. aae1 Moresee1 *»
                                                                                           42

                                                               Subtitle E—Dutiaa of the Secretary at Commerce .a Raeource and
              retain.
  (4> Araar»im*/eMa»ae-fraafli aaatr Out laiaaffisa, tAereer*
          m *• tffftfrmtti M,M*.0M tor Httul gmr  l»U aW
                                                              Sac.  SOOL The Secretary of Commerce shall tncourafa ptatar
                                                                      "      of  prawn  iseourea  retumj  tachaolocy by
     4009.
                            — The Admiaiicraior shall  make
                                 to mimnpalitiea with a pop-
                                counoaa vith • pepuUtion of
            or !•§ or !••• thma twwty pmofM per *qv*ra mil*
aod oat wnhia • in»iiii|»ilinii »r««. far tolid wwu aunafrBwat
        (iaduoinf oquipnwU otcmmrj to OMM ih* nqumownu
         4005 o/ thi* Act or [•uiiTiijui on opu taurmaf of OUMT
             annn«  uador UM CUon Air Act or  ch> F*d«nJ
Waur  Poiluaoa Caocral  Ao.  Such   ««iir»nr» ahoil  ooir b*
     (1) to aar — -rr*"T « county which oouid not faaiihlj b*
            in a aoiid wu man«crm«nt frnm or facility *tr*-
        a& urtaAiHO*  oi^tijttnaoUcuonal arva bacauM  of iti  *iif*
         trm «uch
      l2> wbart *»"*"c or piaaacd aolid waau aaaaftacnt MTV-
    ioaa or facililiai an uaavmilabt* or iniuAcint to comply with
    £• nqavmaaa of »enon 4005 of thu Ace aad
      i3> for ij»iim which art certified by tha SUM to b« eonaiav
    aat wtth aay plaoa orprofrmaM oiubiuhod uadtr any Suu or

  !b) AUOTMIXT.— Th* A-ITI™ !«**•»«• shall allot th« nuna appro-
pnaiad to carry out  thia lacuoa to  any Aaeal  r«ar anonf  the
Stata* IB anmrnanra with rafulauooa promulfaud by him  on  tb>
bo« of th« a««ra|* of the  ratio which th« population of rural
araai of tach Stela bean to  the total fmp^ilatiin  of rural ana* of
all the State*, the ntio which the popuiacoo of eountiaa ia «ach
State hannf leal than twenty penona par (quart  oule been to  tht
total population of ntch oououat ia  all the  State*, aad  the ratio
which the population  of wch low-deaaity eouatiei in aech SUM
aa*inf 33 per centum or  Lour.— The annual of aay frmai under thia aeeuoa  ihall  not
eacead TS per ceawal of the eoeta of the  project. No aaaiMnce
oader thia tecnon  shell be a*ailaMe lor the acquMiiioa of land or
iatereM in land.
  •d) AmormiATiowa.— There an authoriaed to be appropriated
CS.000.000 for tech of the flacal yean 1971 aad 1979 to carry  out
thia Mcuoa. Thtr* are anthemed te  be aperofnaied I10.000.0M
for the fecal rmr  1*80 aed tIa.000.OM for tach of the fecal r«en
IMI and 198] to carry out thia tecoee.
      (1) amtreta fpadflcatiom (or ieui»»ml materialc
      (2) ariiniilatinn of development of marketa for leujiaieil no-
    teriala;
      (3) prometiofi of proven technology; aad
      (4) a forum for the enhance of technical aad eoonomic data
    raiaonf to rejource ratn»en fr-ilt*1-*

    uvmanatrt or franCAnoM roa acomtft KAmuAU

  Sec. 5002. The, Secretary of Commerce, acfiaf :aroueh the Na-
tional Bureau of  Standard*, and  in eoajoncooa with  oatunal
•anrtaniaeirtim orcaaaauona in reaource latmai/, ahall. after
public heannp. aad aot  later than rwo  yean after <*» ••» • 4>»
iMneiii •*..*>, Stptember 1.1179 pueliah fuideiiaa for the d*>
oeiopmeat of ipeafication* for the ciaanfication of matehala reco*.
trad from  waau which were dattined for dlapoaai. The  T*"lfl~-
eona shall pertain  to  the phyncal aad  rhemiral properuea aad
charactenatic* of such matenala with retard to their uae in rtpiec-
iaf nrfia  oiateriala ia  vanoua iaduatnaL commercial, aad iortm-
mental uae*. Ia enahliahiac such puoeUne*  the Secretary shall
alao. to  the eiteat  faaaihla provide men iaformation at may be
necaaaary to eauat Federal afeaae* with procurement of item* coe-
taiamf i«tu»ei*d outeriala. The Secretary *haU coaonue to coep>
trate with "-~«—' iiiiiiliiilmiinn orfanaaoona. a* may be nee-
    y, la encDurefe the publkanoo. promulfaooa and updating of
                                                            itandard* for iecu»iiid materiala and for the u*e of ieco»ti»d me-
                                                            tenala in wioua iaduethal. eommercial. aad tverameoul uae*.
                                                              Sac. 5001 The Secretary of Commerce shall within  two yean
                                                            after *• MMMBM* •« •*• AM Seatsmaer 1, lfT9 take auch ecuooa aa
                                                            may be nacaaaary to-
                                                                 ll) identify the ronnprucal location of ttafOnf or potential
                                                                marheta far reeo»»n»i material*
                                                                 (2) identi/y the eceaoouc and technical banian to the uae of
                                                                         oalenalc aad
                                                                              the liatalopuiaiit of new uae* for letomeil ma-
                                                              Sac. 5004. The Secretary of Commerce ia authorised to •veluate
                                                            the commercial ftaaibility of rtaourc*  recovery facilities and  to
                                                            publiah the rauita of tuch tvaJuation. and to develop a data beet
                                                            for purpcea* of iminna; ptnona in chooainf such a lyttam.
 RCRA Compliance/Enforcement
                                                             1-33
                          Guidance  Manual  1984

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   Chapter  One
The Resource  Conservation  and  Recovery Act
                               43
                                                                                               M
                                   uqumsnirrr

    StX. Mt4.  In enaMUhing any policies which mar »ff«« <«• »>
  Tetoaaaem of new market*  for reco»ered material* and in making
  aay determination tone truing whether or not to impose monitor*
  int or other control* on aay marketing or transfer of recovered
  material*. the Secretary of Commerce mar consider whether u»
  enaall*k the mm* or similar  policies or impose (no same or simi-
  lar maeitlorUtg or other control* oej virgin i
   SCC. MM. There are aatherUed to to aaatQUial**! M the Secre-
  tary of Commerce li.OM.OM for each  of fiscal year* l»M. 1MI.
  tut l*n t» carry out the awraaiss of that subtitle.

               Subtitle F— Federal Raepoiunbilitiee

                   moAt. STATI, AN» LOCAL LAW TO fTo
   Sac WOl. Each department, agency, and instrumentality of the
 executive, legislative, and judicial branche* of th« Federal Govern-
 meat •!) having jurisdiction over any solid watte management fa-
 cility or diipoaai siu. or i2) engaged in any  activity resulting or.
 which may reeult, in the diapoeal or •nananmrni  of (Aw aerdon.
         contnttinf ofTicer* shall require  that vendor*: <
         *• m+ mtitimi w«tie>4 lee *• fiiin mil it rile .

               (A)  certify thai the percentage of recovered materials to to
             used  in  the performance of the contract will be at least the
             amount  required by applicable ipeeifleejliona or other con-
             tractual  requirement* and
               IB)  estimate the percentage of the total material utilized for
             the performance of the contract which in recovered materials.
   RCRA  Compliance/Enforcement
          1-34
Guidance  Manual  1984

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  Chapter  One
The Resource  Conservation and  F  covery  Act
  Id) SPECT1CAT1ONS.—All Federal agencies that have the rnaosv
siMUty for drafting or reviewing lawcifkstiowa for procuremetit
iuta* procured by Federal agencin shall—
     (I) at  ezacdltioosly at pottibl* but in atiy  event no later
    than five r**n after the date of enactment of this ACL elimi-
    nate from such specifications—
         (A) any exclusion of recovered materials and
          any requirement that items b* manufactured from
        Ttrfin msxterialK and
     (2) within one rear after th* date of publication of applica-
    ble guidelines under subsection  'ti. or as otherwise specified
    in such guideline*, assure that tuch specification* require th*
    uat  of recovered materials to the maximum extent sensible
    without jeopardising the intended end use of the item.
  *' Gutotuoat.—The Adramirtntor. uter  consultation with  the
Administrator  af  General  Semen, tht secretary of Commerce
 acting (.'.rough the Surttu •>! Standards), ind the  Public Printer.
shall prepare, and from tun* to time revise,  guidelines for th*  uat
af procuring  igencin in  complying with th* requirements  of this
section. *•
                         4 mam Such piiddincf i hall—
      ' 1) daifnau thoaa item* which art or can bt produced wuh
    rtto»«ftd mauhaii and whoa* procurement by  procwrinf
    aftncMi will carry oat th« oomti*M at thu ^ctioa: and
      12) act forth recommended practicn with rnawct to the ero-
    nrwawiit of rtcovcrtd material* and  iltmi eontaininf  tuch
    naunaii and with iitptm  to certification by >*iidon of th*
    prrcmiaft of rt«o»ertd maunaii uard.
and >hal> provide infonaation at to  tht »»aila*illiy. rtlativt prict
and ptrformaact of inch mauriati and ittma ant! where appro*
priau ihail rvcomatend the ler*l at  recovered material  to b* con-
tained in the procured  product. The Administrator shall prepare
final guideline* for  at  lean three product cairaoriet. in*4udin(
paper, by May I. IJ»1. and for two additional product eatetonea.
including  eon«iruction  matenala.  by  Septemher  10.  U«2.  In
maatnf  the  denotation under  paratraph  11).  the Adminittrator
ihail coiuider. but it not limited in hit contidtratioaa. to—
      i At th* availaoility af tuch ilema:
      tB) th* impact of tht procurement of inch item* b* procur-
    ing  tcmcia on th* «olunM  of »aiid  watu  which muat  b*
    treated, stored or dltpottd of:
                                                                                                      •aiibillly of producing
                                     4<

              1C) th* economic and technological
            awd wanif turt iuwac and
              (IHplmii am for iwrfnnnifiJ rr
          if) PncuuMBrr or Snnrr*— * prvev
        ».^i»i.» axtmt pracucabf*. inaoaft or
        m*ot of asiid vast* managtmtnt »*rvic*t
        niiva *n*TUr and rtaourc* recovwry.
          igj Eucvmrt Oner—Th* Ofllc* of F
        Exacuotw Offle* of th* Prattdvnt in coor
        traur. ahail implement in* poiiey uprar i ta thu atcuoo. It inail
        b* th* in(Miniiliilii/ af th* Offk* of Prc   rtment Policy to cooraj-
        nau toil policy with  other ooiiciai  foi  •'•daTml procurement, in
        tueh a way a* to maiimit* th* uat of .  avtred rtaoureea. and ta
        annually report w th* Congrats on actr  i taken by Federal  agen-
        cies ana  th* program mad* in th* imp  nenuuon of tueh policy.
                                                                                                     if agrmrr inail. w th*
                                                                                                     •rang* for tnv procure-
                                                                                                     a manner which maxt-

                                                                                                    xrurement Policy in th*
                                                                                                    ttion with th* Adminis-
                                                                             WTTM TMI nrviaoNMB<  i. PIUIU.IION ACCKCT
  sec uox :ai GE.NCJUL HULL—All
th* Administrator in carrying  out  f
and shall promptly make available a
cerning past or present Agency wati
past  or pment Agency owned. lea»
ardout wast* facilities. This informs
format at may  be determined by th*
  ib)  iMrOKtUTlOM RlLATING TO E
S»VATION  AND  Rtcoviir.—The
maintain, and disseminate informal
tential of energy and  matenala re
eluding materials obtained  throvgf
maiion concerning the saving! poi
coninawting to the watte stream, T
th* regions  ta which th* increased
energy derived from fossil fuels a.-
to be  feasible, and pro'ide inform.
nomi* aspects  of developing  inlet
ftcoetry sytum* which provide f
rated  materials to b* recycled  or
Th* Administrator shall uullst th>
carrying out thit subsection.
                                           -derml agencies thall assitl
                                            function!  under this Act
                                           tquetted information con-
                                           nanagtmtnl practicn and
                                            or operated solid or ha»
                                           n shall be providvd in suck
                                           :minittrawr.
                                           •XT AND MATTP.IALS  Cow.
                                           iministrator shall collen.
                                          i concerning th* market pa»
                                          *er*d from tnlid waste, iiw
                                          aurc* separation, and infor-
                                          tial  of conserving  retourcn
                                          Administrator shall identify
                                          attitution  of tuch tnergy for
                                          other souren it moat likely
                                         on on the  technical and eco-
                                         -*d retource conservation or
                                          the recovery  of MMirr*-tepa>
                                         i* conatrvation of resources.
                                         uthontm of subawtion iat in
                      or sous WASTI ou
                                 ACt>
                                        -tAt cutocuNa TO cxmmvc
          Stc. 6004. (a) ConruANCi.— (1) .  -
             iA) an Exacutiv* agency it-  :eflned in section 105 af till* 5.
            United SUM* Codei or any   ill of th* les^slauve branch of
            th*  Federal Government ha   unsdiction over any real  prop-
             ny or facility th* operatic   or administration 01  which  m-
 RCRA  Conpliaace/Eaforceaeat
         1-35
                                                                                        Guidance Manual  1984

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   Chapter  One
The  Resource  Conservation and  Recovery Act
                              49

 modify or withdraw any standard, limitation, or any other require-
 nnt of tha Act or HIT applicable inplMMauuoa plan.
   i n OCCUPATIONAL 3A/mr AMD HCAITM.—In order 10 aaaist the
 Secretary of Uftor and the Director o/ the National  lastitata for
 Oenaational  Safety  and Health ia  carrying  om  their duties
        UM Oratsuioaal Safety tad  Health Act o/ ItTO. ttM  Ad-
      .mar shall—
       ID provide the  foUowtag inforaatMA. M saxh iaformatloe)
      •cawMs available, to Om Secretary and UM Director:
         . (A)  UM  ideality  of tar hawdotat  VMM  generaUoa.
         treatment storage, disposal facility or site where cleanup
         i§ eiaaaod or uaderweyi
          (8)  information identifying the haaard* to which per-
         •MM working  at a haxardoua weate generatM*. treatment
         storage, disposal facility  or  site or otherwne handling
         haxardowa waste may be npoiid.  tiM nature and ixtem
         o/ UM  siBoawt. and mnAods to  prouct workers from
          iO iacidema of vorktr injury or ham at a haiardoua
         weate  fneratloM, treatment. storage or dtoeoeaJ facility
         or site: and
        in CattMjkL.— Cwept aa provided in subMetion 'b>
 or ie> of thia tanioo. aoy penen may commence a civil action on
 ha ovn behalf—
      <1)  afaimn  aav penon lincJudinf  the '.fnitad Sutat.  and
     fbt any otner rawnunentai innrumenulity or *c*ncy. to the
     tztaat pernuttad by  the eleventh amendment to the Connitu-
     tioai  who K alJefed to be ia violation of any permit. Mandard.
     rw/uiauoo. condiuon. requirement, or order which hat become
     effective punuaat to Uue Ace or
      1 2)  afjuaat  the Adramutraior where there ia aJleted a failure
     of the Admmiftraior to perform any act or duty under tlua Act
     wtuch M not diacreuonary with the AdmioiKraior.
   Aay  aetioa uader para«raph (all) of  thia iiihmiiuii anall be
 brought in  the diauict court for the  diatnct ia which the aUet«d
 notation  occurred.  Any  action brought under paramph iai2) of
 thia mhaaction may bo broufht in the diatnct  court for the diatnct
• in which  the alleged vioUtioa occurred or in  the Diatnct Court of
 the Diatnct 01 Columbia. The diatnct court snail have junadicuon.
 without r«fard to the amout IB controveny or the atisenahip of
 the parttea. to enforce tuch rtfulation or order, or to order the Ad-
 ffluuatntor M perform nich act or duty aa the  eaae may be.
   ibi AjCTTONt  PnoMiimn — No action may be commenced under
 paragraph lai 1) 01 thia afcaon—
      ' 1)  pnor to iixty day* after the plaintiff H v  Ai to the Admtniauator •&!  10 aav allemd violator of
             wot!
             Unit
                             SO

    luch permit ftaadard. refuJation. condition, requirement, or
    order or
      '2) if the Administrator or State ha* commenced and ia dili-
     , Btly piuaecunnf a civil or criminal action in a court of the
     Jnitad Stataa  or a State to require compliance  with  tuch
    permit, standard, refutation,  condition, requirement or order
    rtonoM, tiowtwr. That ia any such  action ia a court of the
    United Stataa. any person may intervene aa a matter of nfht.
  (c) None*.—No action may be commenced uader panaraph ia«2)
of tail section prior to  airy day* after the plaiauff hat given
notice to the Admin aerator that  he  will oummeina tuch action.
except that such action may be broufht immediately after such no-
tification in the eaae of an action under thia section reapoctinf a
violation of [sectwa 212] tuontt* C of thia Act. Notice under thia
mhaemnn snail  be  given  ia such maaaar aa  the Adouniatrator
shall preaenbe by  regulation.  Any action reapactina; a  vwiation
under thia Act may be broufht under thia section only ia the judi-
cial diatnct in which such alleged violation -xcun.
  id) IxravomoN.—la any aetioa under thia section the Adaunia-
traior. if not aparty. may intervene aa a matter of right.
  let COST*.—The court,  ia  issuing any flnal  order in aay action
breurnt pursuant to thia section, may award coata of litigation 'in-
cluding reasonable attorney and expert wanes* feeai to any party.
whenever tha court determines such aa award ia appropriate. The
court may. if a temporary restraining order or preliminary lajuac-
Uon  is sought, [requiring]  nqum the fUintj  of a bond or equrea-
lent  security  in  accordance with the  Federal Rules  of  CM1
Procedure.
  iO OTMSB RlCim Pusxnvn.—Nothing  ia this section  shall re-
strict any right «hich any  person tor class of persona' may  have
under any  statute  or common law  to  seek  enforcement of any
standard or requirement relating to the management of solid waaM
or haiardoua waste, or to  seek any other relief (including relief
against the Administrator or a State agency).
           Sac. T003. (a) AVTHOUTT or ADMINISTBATOI.—Notwithstanding
         any other provision of this Act. upon receipt of evidence that '.he
         handling, storage, treatment,  transportation  or disposal of any
         solid waate or hazardous waste • pnMMf may present an immi-
         nent and substantial tndangerment to health or the environment.
         the Administrator may bring suit on behalf of the United States m
         the appropriate diatnct court to  immediately  restrain any  person
         [for] contributing  to *• nlnn si nnl such  handling, storage.
         treatment, tnuuportatio*. or disposal to stop  such  handling, stor-
         age, treatment, transportation, or disposal or to take  such other
         action aa may be necessary. The Administrator shall provide notice
         to the affected State of any such suiL The Administrator may also.
         after notice to the affected State, take other action under thia we-
         lion including, but not limited in. issuing  such orders as may be
         necessary to protect public health and the tnviroameni.
           'bl VIOLATIONS.—Any penon who  willfully  nolates. or fails or
         refuses to comply with, an* order of the Administrator under lub-
         sectioa (at may.  ia an action  brought  in the appropriate United
  RCRA Compliance/Enforcement
          1-37
                           Guidance  Manual  1984

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 Chapcer  One
The  Resource  Conservation  and  Recovery Act
                             51

 Slates dUtrtet court to enforce such order, be fin»d not more than
 S3.MO for tach day in which such violation occur* or such failure
 to comply continue*.

         mrrioM rot UOULATWHK rvaue-pArnnr*TioM

  Sac. '004. ia) Pin I ion.—Any person may petition  tho Adminis-
 cmar for the  promulgation, amendment,  or repeal of any regula-
 tioa under this Act within • reaaonaal* tio» following receipt of
 such  petition,  the Adauasttraiar  shall ufc* Action  with  respect to
 wen petition and shall puoiish notice  of such action in (a* federal
 Register, together with cho reaenns therefor.
  • 01  Puauc PAatWATio*.— (1)  Public part-ctpuuoa in  the devei-
              o. implementation, and *nfom-:nent of any reyula-
               ia/ormauon. or profram under this  Act shall be
         for. encouraged, and  •**-*'~< by the Administrator and
 too Stum. The Administrator, in  cooperation *ith the Slat**, shall
 develop and publish minimum guidelines for puhlic  participation in
 such processes.
  12)  Bcfon the issuing of a permit  to any  ptnon  with any  re-
 spect u aay facility for in* treaiancnt. sfora**. or disaoial of has-
 ardoea waste*  under section 3005. the Admim»tr*tor shall—
      (A) catiat to  be publish** in major lorul newspaper* of i«n.
    tral circulation and broadcast over local radio stations notict
    of tlM agency's intention to i«*u«  such permit, and
      ifl) transmit in writing noun  of the .igency's inUntion to
    issue such permit  to each unil of  local (i»ernment ha'inf ju-
    risdiction or*r the arta in which such facility i* proooMd to
    ba located  and to racn Stau actncy ha«m» any  authority
    under SUM lav with  rnpwt  to ih*  eofincructio*  or  otwraunn
    of such facility.
 If within 43 dan tail Administrator r*c*rr« whtlrn  notict of op-
 pnailtmi to IB* trmcy's inttntinn to  i«»u« r determine* on  hi*
ow*> inttiatife. he shall hold an informal public hearinc i includ-
 ing an opportunity for pmentaiiun of written and oral  >iev*i on
whether he should  iatue a permit for  the pnipuwtd facility. When-
ever poaiible the Administrmtor shall schedule such  heannt at *
location convenient to the nearrst population renter to  such pro*
posted facility and  five notice in the aforementioned manner of
the date. time, and subject matter of  such hnnnc. No Slate pro.
gnm whkh jrondea  for the isaiiance of permits referred  to in
this paiwraps) may  ba  authonied by  the  Administrator under
section IOM unleaa such profrasa providn for the notice and
hearinf rtejuired by the parafraph.
                                                                                             52
          _3>c. TOub. .si ftiyitw or FINAL Rcr.uuTiONs  AMD CCKTAIM
         PfTtTMWsj,— Any judicial review 01' final refutation* promulfated
         punuaat hi this Act and the Administrator'* denial of any peti-
         tion far the promulgation,  amendment, or repeal of any  refula-
         Uon under  this Act  ihall  be  -n  iccordaAca  with sections "01
         througa T06 of titlo i of the United State* Coda, except that—
               (1) a petition for  renew of action at  the Administrator in
             promuicaung any  refulatioo, or requirement uader this Act or
             denying any petitioei for the promulgation, amendment, or
             ftpsal at* any regoiatioa under this Act may be filed  only m
             tho United States  Court of Appeals for the District ai fil<«un
             Ae» ColosaMa. and such petition  shall ba filed  within uinety
             day*  from cho  data  of such promulgation or denial, or  a/tar
             such date of such petition for review is baaed solely on grciuid*
             arunag after such  nineceth  day; iWne* action of the Aoaueia-
             trator with respect to which review could have  been obtained
             under this subsection shall not bo subject to judicial review in
             cml or criminal proceedings  for eaioreemeat; and
               (2)  ta any judicial proceeding brought under this secnoo ia
             which review is sought  of a determination under 'Jus  Act re-
             quired to be made on the record after notice and opportunity
             for hearing, if a party seeking review under this act sppiias 10
             tho court for leave to adduce additional evidence, aad show* to
             tho satisfaction of tho court that tho information ia material
             aad that there wore reasonable  grouads .'or the failure to
             adduce such evidence in tho  proceeding before the Administra-
             tor. the court  may  order such addJuoaal evidence land evi-
             dence ia rebuttal  thereof) to be taken before tho AdauaMUa-
             tor. aad to ba adduced upon tho hearing ia such manner and
             upon such terms aad conditions aa the court may deem pmssn
             Ae proper, the Administrator Buy modify his  findings  a* Jo
             the facts, or make new findings,  by reaacn  of the snrlifinnal
             evidence so taxen. aad he shall file with the court such modi-
             fled or new finding* and his recommendation, i/ aay.  for the
             •n««n>«um or setting  aside of his original order,  with the
             return of such additional evidence.
           (b)  Rrrtcw  or CiBTAjN  AcnoNi UNOII Stcnora 30W AND
              -Review of the Administrator's action 11) ia  issuing, deny-
  See. TOOS.  (f any provision of this Act. or tho spoliation of sny
provision of this Act to any person or circunxiance. is held invalid.
the application of such prevision ta other pviions or circumstance*.
and the remainder of this Act. Jhall not be affected thereby.
         ing. modifying, or revoking aay permit under section 3003. or (2)
         ia granting, denying, or withdrawing authorisation or interim 10-
         thwrimioii under  section 100*.  may  be had by aay interested
         person ia the Circuit Court of Appeal* of the United State* for
         tho Federal judicial district in which such person resides or trans-
         act* sejch busiswts upon application by such person. Any such aa-
         pHraitOB shall b* made within ninety days from the date of such
         issuance, denial, modification, revocation, grant, or withdrawal.
         or after  such  datt  only  if sucn eppliraiion  is based solely wn
         grounds which sroee s/ter such mneiuin day. Such review liiail
         be in  accordance with sections 701 through TIM of till* 5  at the
         United SUM* Cod*.
 RCRA  Compliance/Enforcement
         1-38
Guidance  Manual  1984

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 Chapter  One
The  Resource Conservation  and  Recover?  Act
                             si

          OUMTC 0« CONTtACn rOB TKAOtlNC rtOJBCTl

  Sex. TOOT, (a) GtwOAt AUTHOSJTT -TH* Administrator is au-
tbernad to oats fnaa (a and contract*, with aar eligible orgaai-
•BOB. Por purposes of this section th* tarm "etigibl* organuauoir
msan* * Stau or iauncau agency. » municipality, educational ia-
tutuooB. aad *ny other orgaaaanoa which « capable of effectively
carrying out • project which our b* funded by gnat uadar aubaac-
tfaBfolofthaiaacboa.
  (bl  Powcam-*!) Subject  to th* uiuilaiuua of paragraph (2.
fnaa or contract* may b* nada to par ill or • pan of th* cost*,
M may ba dotarmiaod by th* Administrator, of any project operat-
ed  or  to b* operated by an eligible  organisation,  which ia dv-
                                      54

           'bl PitomtrnON.— No grant may b* mad* under this Act to any
         private prontmakinf orgaauauon.
      (A) ta develop, expand, or carry out a program (which may
        •DC training, education, and employment) for training per-
         for occupations  involving th*  raanagwnetib supervision.
            perauoo. or maintenance of solid •eats (disposal]
            atu aad  Craaourea*]  recant*  recovery equipment
    sad facilities: or
      'Bl ta train instructors and supervisory personnel ta train or
    supervise persona ia occupations involving th* dongn. oper-
    ation, and maintenance of solid wait* [disposal] managmwit
    and resource recovery equipment and facilities.
  '21 A grant or contract auchomad by peragniph ill of this subsec-
tion  may b* made  only upon application to the Administrator at
such urn* or timea and containing such information a* he may pr*»
scribe, except that no such application shall b* approved unleaa  it
provide* for th* same procedure* sad reporta land access to such
report* and ta other records) a* required by section 207(b) (4) and
 5) (a* ia effect  before th* dau of th* enactment of Resource Con-
servation aad Recovery Act of 19781 with respect ta applications
mad* under tuch section is* ia effect before th* dau of th* enact-
ment of Rasourc* Conservation and Recovery Act of 19761.
  '« STVDT —The Administrator shall max* a complete investiga-
tion and study to determine—
      ID th* aead for additional trained Stau and local personnel
    to carry out plan* assisted under thi* Act and other solid wast*
    aad lasnnir* recovery program*;
      (2) meens of  using — j-«-«g training program* ta train such
    personnel; aad
      (3) th* ezunt and nature of i Jamie* ta employment and oc-
    cupational advancement ia th* solid  waau (disposal] /nouiof*-
    ftwnf and lesuime reui»eiy field which  may limit either avail*
    able manpower or the advancement  of personnel ia such field.
He shall report  th* result* of such investigation and study, includ-
ing hi* recommendations to th* President and th* Congress..
  Sac, "008. >al CtMtmAL RULC.—Payment* of (raaU under thia
Act may be mad*   Adminiatraior finds that the ap-
         plication contain* or ia supporad  by raaaonabl* aasurance that all
         laboisii and meehaaiei empioved  by contractor* or subcontractors
         oa protect* of th* type covered by the Oavxa-Baoaa Act. a* amended
         (40 Ui-CZTta-tfoa-SX will b* paid waaa* at ratal not leas than
         those prevailing oa limilar work  ia th* locality a* determined by
         th* Secretary o? Labor in aceordanc* with that Ace and the  Secre-
         tary of Labor shall Kave with respect ta th* labor standards ipeci-
         (led in thia section th* authonty aad funcuoaa set forth ia Reorga-
         mxation Plan Numbered 14 of I960 U5 FK. 31T6-.  S U.S.C. 133t-jl
         aad section 2 of th* Act of June  13. 1934. a* amended (40  U.S.C.
         278el.
                i

              SubtiUe H— Reaearch. Dewlepmrat. Demonstration, and
                                  Information

            uaoacx. ptMONfnunoNS. roi.xtNC. AMO OTMn Acnvrnn

           Sec. 8001. 'al GLIOIAL AuTHO«rrr — The Administrator, alone or
         after consultation  with  the Administrator of :he  Federal Energy
         Administration, th* Administrator of the Energy Reamren and De-
         velopment Administration, or the Chairman at th* Federal  Power
         Commission, shall  conduct, and  tncourag*.  cooperate  with, and
         render  financial and other assistance to appropriate public 'wheth-
         er Federal. Stale, interstate, or local) authorities, agenc:**. and in-
         stitution*. private  agencies and institutions, aad individuals  in th*
         conduct of. and promot*  th* coordination of.  iiasaich.  investiga-
         tions. experiments, training, demonstrations, surveys, public  educa-
         tion programs, and itudic* relating :o—
              ll) any advene health and welfare effects of the release into
             th* environment of material oreeent in solid waau. and meth-
             od* ta eliminate such effectr
              i2>  th* operation and  financing of  aoiid warn [dispoaal]
             ma/ioft/twnl programs:
              <3>  th* planning,  implementation, and  operation of resource
             recover* and  resource conservation syium* and  hasardoua
             waau management system*, including th* marketing of recov-
             ered resources:
              14)  th* production of usable form* of recovered mourcea. in-
             cluding fuel, from aoiid WMU:
              (5)  th* reduction of the  amount of  such wasu and un-
             aalvageabl* waau materials;
              (6)  th* drrelopment and application of new and improved
             method* of collecting  and diapoamg of  solid wasu and process-
             ing and recovering maunals and energy from solid wastes;
              i?)  th* identification of solid waste components and potential
             maunala aad energy  recoverable from such waste components:
 RCRA  Conrpliance/Enforcemeac
          1-39
Guidance  Manual   1984

-------
  Chapter  One
The  Resource Conservation  and  Recovery Act
                              48

      (81 small scale tad low techaoJory solid watte management
    syetema, t'rl'HJ-'g but °°* l»*i«*d *• ra»ourc* recovery source
    ssperauon system*;
      .S) method* co improve the performance chanctarianci of re-
    source* recuveiea firm solid waate ana the relationship o( such
    performance charactenatta co available aad pixemiiily availa-
    ble market* Cor such resources;
      HOI improvement* in bud iliicmiil practical for solid waeta
    I including iludge) which may reduce tho advert* eaviroaaien-
    tal effect* of such djaaojal and otter aspect* of solid watte die-
    ptjtal oa land, '—<"""«t means for reducing eh* harmful eavv-
    roameatal effects of earlier aad mating landfill*, meaa* for
    mmiin area* damaged by inch earlier  or exiatiaf Landfills.
    aoaa*  for rendering 'v'PI'f laf* for purpoMa of construction
    aad .other uses, and cacaaio.ua* of recovering material* aad
    energy from landfill*:
      (111 method* for the sound disposal of. or reeonery of re-
    source*, including saerfy, from, sludge liaciudinf sludge from
    pollution control aad treatment fsnlinas coal slurry pipelines,
    aad other *Burce**
      (12)  methods of haaardou* »a*u laanaftmMt. iacludinf
    matnodi at rvndcnnf jucft waaM tnvironnwntajljr saic ana
      113) ior  *dv«rs* tfTicu  on air auality  panieularlv  with
    regard  to Ui* tauatioa of h«avy mataUJ wnien rttuit :rom toiid
    W«SM wlucn  4 buraad  imthtr aJon*  or  in conjunction  with
    oth«r iubstaacaaJ (or purpoaai of tfntaunt Hisnnaal. dr *nargy
  'b) MAMACIMCMT PiocaxM—(IMA) tn carryinc out hif functions
purtuant co cnu Act. aad any other Fadtrml kfulauon ratpactin«
solid vaata or diacardad maunal rtaamrch. dr»«lopm«nt. and dam-
onatraacou. cha Adouniatrmtor shall aaualiah a maaafxnaflt pro-
(raa or syium to iaaura cn» oaordiaauoa of all such actintia* and
to faolitata aad acniarata. cho procaas ot' drxiopmatu of sound
off tathimlcajy  IOT other  ilianmariasi from tho  naMrch phaaa.
taroufh drvtlopmonc aad iato tha demonat ration pnaaa.
  (fl) Tha Administrator shall (i) asmift.  oa the bast* of any re-
search projeeu which ara developed with ataiaunce under this Act
or witaout ftderml '**'*»*r^r. the construction of pilot plant facili-
tiae for; the purpose of inwufatiaf or taetinf che technological
feaaibtlity of any promiaiaf new fuel enercy, or neouree recovery
or resource ooneervation method or techaoloaT  and iii) demoa-
straia tach such method aad teehnotacf chat apoaers ju*u/ied by
aa evaluation at such pilot plant stafe or at a pilot plant state de-
veloped witaout Federal aanstane*. each such demonstration shall
incorporate  new or innovative technical  advance* or snail spply
such advances co different  circumstance* and  condition*, for che
purpose of  tvaluaunv datum coneepta or  co tact che performance.
•fncieocy, and economic ftaeiaiiily of a particular method or tech-
nolofy under actual operatinf conditiona. Each such demonstration
shall b* so  planned and desiffned  that, if successful, it can be ex-
panded or uuloed  directly as a full-eeale operational fuel, enerfy.
or resource recovery or nauuin conservation facility.
  12) Any enerty-related research, development, or demonstration
protect for  che conversion inciudina; byconversion, of solid waata
earned out  by  the Environmental Protection  Afency or  by the
                                       56

         Enerfy Research aad  Development Administration  pursuant co
         this or any other Act thail be administered in accordance with the
         May 7. 1776. (alarafency Agreement between che  Environmental
         Protection Afncr and  che Enerfy ftaacareh aad Deveioomenc Ad-
         minnrnnon oa the Oevelopmeat of Energy from Solid Waata* aad
         specifically, chat ia accordance  with chia afreemeat IA) for those
         energy-related projecia  of mutual  iaterast.  planainf  will be con-
         ducted jointly by the Environmental Protection Afancy and the
         Enerty Rsaearch  aad  Development  Admimsrrtnnn.  followtna;
         which  project raipoaaibility will  be seai(Bed  to on*  aftncy: 'B)
         tnercy-reuited portion* of projeeu for leuouij of syntheoc fuel* or
         other form* of tnerry from solid watte shall be the reepoosibUiry of
         the Enerfy Reeearca aad Oevelopmeat Adaiaiatration; (O the En-
         viroameatal Protection A(eaey  shall retain responsibility for the
         environmental, economic, and institutional  aspect* of solid wast*
         projeeu aad for aasurance that «uch projects are coosutent  with
         any applicable suajeated niideiine* published pursuant to section
         1008. aad aay applicable Slate or regional solid waste maaafement
         plaa; aad (0> any activitiea uadertaltaa  under proviaioaa of sectwa
         4002 and 4008 a* related to enerfy: a* related to enerfy or rynthet-
         ic fuel* »etn»«iy from waste:  or at related to enerfy conservation
         ihall be accomplished through coordination  and consultation  with
         che Enerfy Research and Development Administration.
           (cj AtTxoamo.— 1) la carrying out subatctioa acM. otvtiorMCNT. AND
                                OOtOHTnUkTlOH*

           Sue.  8002. laf Gu*a* AND  PLAJTTC.—The Administrator shall un-
         dertake a study and publish  a  report  on resource recovery  from
         flat* and plastic watte, including a scientific,  technological,  and
  RCRA Compliance/Enforcement
           1-40
Guidance  Manual  1984

-------
Chapcer One
                                                        The  Resource  Conservation and  Recovery  Act
economic investigation of potenrisl solution* to implement such re-

  ibi GoMfoamoN or WASTI STUAM.—Th* Administrator shall un-
dertake a systematic study of th* composition of th* solid waste
stream aad of  anticipated future Changs* in th* composition  of
such stream aad  saaU puauah a report containing th* results  of
suea study and quantitatively evaluating th* potential utility  of

  to Puutmai SrvBt.—For purposa* of determining pnontie* for
raaaarch oa isuiieij  of m*tensls aad energy from solid wast* aad
ils»elii|»m  material* and energy reiu»ei i  research, development.
aad  Isiamisiieiiiin serateajaa, th* Administrator shall review, and
make a study of. the venous existing and 'promising techniques of
energy recovery from solid wast* (including, but not limited to. wa-
terway! furnace incinerators, dry shreodea  fuel tyetems. pyrotysis.
dean/led nAuerlenveri  fuel synea, anerobic digestion,  aad fuel
aad feeditoft preparatioa ryitaouu. la carrying out such study the
Administrator  snail  laveangat* with reaped to each  such -   '
      (1) th* degree of pobiJe need far the potential results of such
    rataarca. development, or demonstraCon.
      (2) th*  potential for research, development,  aad demonstra-
    tion  without Federal actioa.  including the degree of restraint
    oa such potential posed by the naka involved, and
      <3> th*  magnitude of erfort and period of time  necessary to
    develop the technology to th* point  where Federal assistance
    can be ended.
  'd> S«Aii-ScAit AND Low TKMKOUMT STUDY.—The Administra-
tor ihaiJ undertake a comprehensive study aad analysis of. and
publish a report on. system* of tmall-ecaJe and low  technology solid
waat* management, including household  lesouice recovery and re-
source recovery syneoie which have special application to multiple
dwelling un:u and  high density housing and office complexes. Such
study aad analyst* shall include an investigation of th* degree to
which such ivstema could contribute to energy eonaervauon.
  le) Faoirr-ENB Soutci SCPASVATION.—The Administrator shall un-
dertake research and studies  concerning th* compatibility of front-
end source Mparatioo ivstems with high technology resource recov-
ery ryst*ma and shall publish  t report  containing th* results of
such neaaiLh and studiea.
  if) MINING WASTI,—The Administrator, in comultation with th*
Secretary of th*  Interior, shall  conduct a detailed aad comprehen-
sive  study on th* adverse effect* of solid waste* from active and
abandoned surface  aad underground mine* on th* environment, in-
cluding, but not  limited  to. th* effects of such waatea on human*.
water,  air. health,  welfare, and natural resources, aad on the ade-
quacy of mean* and measures  currently employed by  th* mining
industry, government agencies,  and others to dispose of aad utilise
such solid waste* and to prevent or substantially mitigate such ad-
vers* effects. *••• «•*• «*  '
                                                                Not later lhaa
                                                                                            UM after the date of the enactment
              tairty-eis mat
of UM 4olkd Waat* Dtsaoaal Act Amendments of 1»M the Admin-
                     a report of such study and ihall include
                                                                           fladl*j
                                                                                        _______            _______________
                                                                Federal actioa* cwacenuaf saca eflecta. Suea report shaU be sub-
                                                                      la the Commit!** oa Ea«tr*am*«i aad Publk Work* of
                                                                ta* Unhed Stales 9men and  UM Committee oa Interstate  aad
                                                                Foreifa Conuewre* of th* United 3lat*a House of Representative*.
                                                                la furtherance of thu study, the Administrator shall, a* he deems
                                                                appropriate  i»'ie»  studiea aad  other actioa* of other Federal
                                                                acencMS conetrainf suea  wanas with a new toward ivotoinf du-
                                                                plication of effort aad th*  need to expedite such study. The Admin-
                                                                istrator snail publish a report of such study aad shall include ap-
                                                                MOQCeat&e) fl&wiUlaB 4M)wi fVCOiflXiBwUe^wieawUOQsl fOT fOdeftfeVa eUlwi OOO*FwKt"
                                                                ereTecuone aoncernuif such effecta.
                                                                 ifj  Sumes>—The Adminaoraior shall undertake  a  o»iiipiehe»-
                                                                uvt study and pualwh a report on sludf*. Such study shall include
                                                                an analyna of—
                                                                     (1) what type* of solid wast* 'i««''""-f but not limited to
                                                                   M»asje and  pollution treatment residue*  and other leeiiluas
                                                                   from industrial operations tueh-a* extraction of oil from shale.
                                                                   liquefaction aad gaaulcatioa of coal and coal slurry pipeline op-
                                                                   eratiOM) shall be classified a* sludav:
                                                                     (2) th* etTaca of air and  water pollution legislation oa th*
                                                                   eieaciun of larg* volume* of sludfr.
                                                                     (3) th* ttnounts of slucfe onciaaUnc ia each Sute tod in
                                                                   each industry produeuu) sludfr
                                                                     i4) methods of disposal of such sludf*. including the coat, effi-
                                                                   ciency, aad effectiveness of such methodc
                                                                     (S) alternative method* for the uas of sludffe. including agri-
                                                                   cultural  application*  of  sludge aad  energy  recovery  from
                                                                   sludge: and
                                                                     (() nuthnds  to reclaim  area* which  have been used for the
                                                                   disposal of sludge or which hav* been damaged by sludge.
                                                                 ih)  Turn— The Administrator shall undertake a study and pub-
                                                                lish a report respecting  discarded motor vehicle tire* which shall'
                                                                include an aaalysia of the problems involved in the collection, re-
                                                                covery of resmjii'se including energy, and use of such tire*.
                                                                 li) uaouaci Racovnr F*CTLmta.—The Administrator shall con-
                                                                duet research and  report on the economies of. and impedimenta, to
                                                                the effective functioning of respource  i*ce»ery facilities,
                                                                 ij) rUaousd CONSCBVATION CoMMirm.—

  • -------
      ^aapcer  One
    The Resource Conservation  and  Recovery Act
    social, aad  eoTiroruaentaJ oenwquncw of reaourc* «o**rv«uoo
    with re*p*ct to—
         (Ai ta* sepropnateo*** of reeomnwjded lacMtivea aad da>
        iaoauve* to fo*t*Y rasuure* imuervauoa;
         (B) tat effort of enciag public polio** liaduding tabadim
        •ad *r"»i*inr a»L»iu»ea tad diaaaonav**. percentage depl*-
        ben allowance*, capital (aia* Creatment aad otter tax. iaote-
        ITHJI tad daaacaativwj) upon mumr* mam-ration, and ch*
        Uxaty *fl*et of co* tnoriifkatvM or duainarion of such ioeatv
                            upon i
         *^sW MM*} tsiaiVlWUiBHM w^sB M|*»*B*) * «JSIM*«M WSV M**»aiBWB *«*MB*«ia,
         (O tat *poropnai*o*e* aad fe**bflity of rasnirting to* maa-
         laccar* or uw of cauforia* of OOMUACT product* as * re-
         (0) to* ainmi|»iaiarn«« *«d feasibility of raptorial at a re-
        aoure* caaswrvaooa strategy t** iaipoaitioa of solid wa*u man-
        agement charges oa consumer products. which charge* would
        reflect cat eon of solid VMM management semcea,  litur
        acton, th* valu* of msrtrmtl* compontati of nicft product.
        na«i ^tr~\', «od «ay Mewl vaiu* innnif«r) with th* ooor*-
        eyciiaf or uaeoatroilod dispoui of tueft product «od
         iB  (A* M«d far AiOMr rMnrch. dcvvlopoMnt. ud dcraoa-
        ftraeion in th« am of r«*oum eonMr*acu>n.
      (2) Th*  ftudy nqumd un p*r*«r»pi> D2«Dl] C//Z)/ m*r include
    pilot K&U pra)*cu. aad ih*J  eoaudcr  ud «valu«M aiunutiv*
    >tnufi« with rtapKt w—
         uch ca*rj»:
         'O appropnat* cnwrui lor tMaDliihinf  such  charfti for
        ••ch mnninur product e»mi)i;;
         <0> ratted* for ch* «dju*uo*nt of such charpi 10 rtflcct ac-
        tioiu such M racyclinf which would raduc* UM ownU qu«nu-
        Ci«a of »Ud wot* raquiriaf duaoMJ; and
         i£) proeadurai for amending-,  modifying, or rrruuac such
        chirfw (o rti1«et ch*ntnnf conditiofu.
      <3) Th* d**i
    at thi* aubMCtioo ih*Jl includ* cimcutol** for  ch* conplction of th*
    study. A prtlimuury report putunc forth ch* nudy omen mall b*
    s*ni to ch* Pr*nd*ai «nd th* Confnm within su month* followirtf
    *n«ctiB*al of thi« MctiM and foilowwp rvport* jhjjl b* *«it six
    raoath* th*r**A*r. Each rnomaMfidclioa r«nillio«; from en* study
    shall iaciud* al Itwt two •lutnati*** M ch* piapuaoj ncomawnd*-
    cion.
      '4) Th* mult* of such inwnifition and  study, including rvconv
    TMnoauon*, *h*ll b* r*oor»d to th*  Pr*aid*nt and th* Conerwa
    not Iat*r than rwo y««n a/Uf tiuctnwnt of thi* subHCtion.
      >5) Then  art  authoraid  to  b* appropriated  not to *xc**d
    J2.000.000 to carry out thi* subasction.
      'k) AJCMCT L»wonuJ.— Th*  Adminiatrator shall undertake  a
    compr*h*fuiv*  study and analyst* of and publiah a report on tyi-
    tem* to alleviac* the hatard* to aviation  from Dirts eonfrtfatinc
    and feeding on landfill* in th* vicinity of airporta.
      'I) CoMfixnoM or RcKAftCM ANO Srvoits.— Th*  Administrator
    shall eomplct* th* reaearert and studies, aad submit th* report*, re-
                                         SO
    
             ouired uad*r mlmviiiins (bt, let, id), n). if), 'g). and ikJ not later
             caaa Octooar 1. 1978. Th*  Adauuftrawr shall complete  Jie  .•*•
             narch and studi**. aad submit th* report*, requjred under subawc-
             oon £(•!. (hi (iX aad 0)3 'ox itu. onaf >U not later COM Octocwr 1.
             1979. Upon rmnf4*nnn, *aeh study sa*a/i*d  ia  mlaeiTinns  i«J
             through tit) of taw aeetioe. th* AdaiaiaomMr shall prtpar* • plaa
             for rwj*arca. d*v«topmant. aad d*tooa*tratioa rrfr^rnj ch* find-
             ia*B of ta* scudy *ad shall aubout aay !*sji*iaQw pf^mni^rTfitr?'**
             usiilliiii from such tnidy to aopropnata ooouainat* of Coafreaa.
              <•> OUUUM Funn. noovcsa WATI
                                                I B. AND orau
             AMOCUTKO wra nu  £zno*unoM. Otnuaftum.  o« P«o»
             Di/cnoN or Cxuot oa  o« NATVBAL  GAJ  ot  GIOTHUULAI.
             Enter.— (I) Th* AdmnrMrnor jtuWl  conduct a detailed aad
             
             sources and oa th* adequacy of meaas aad neuum  eurreatly
             tmpl«**d by the ail ead ft* and ceothermal drillint and produc-
             tion industry, Government artncic*. aad others to dispoae of and
             utilise such  w*aia* and to prevent or suottanciaJly miiirate such
             adverse effects. Such study taall  iacluda aa aaalxsu of—
                  (AI th* source* and volume of discarded material rcntrmtad
                per year from such wastes:
                  (8) present disposal practical:
                   potential daager 10 humaa health and the environ****!
                from ch* surface runo/T or leachatc
                  > Oi doea*Mni*d CUM* which prove or have caused dancer
                t* honua health aad th* environment from surface  runoff or
                leachatr:
                  i C) aJtemaUvea ta current  diaaoeal ntethoda:
                  ( F) th* coat of such alternatives: aa*)
                  (G) th* impact of ihoe* alternatives on che exploration for.
                and development and production of. crude oil aad natural fi*
                or reochirmal enerfy.
             la furtherance of thia study, th*  Administrator shall, a*  he deems
             appropriate, review studies and other action*. of other Federal
             •fenciea concerninc >uch WBM** with • view toward avoiding du-
             plication of  effort jnd th* need  to eipedit* such study. The Ad-
             miaietrator shall publish a report of such study ana shall include
             appropriate  finding* and recommendation*  for Federal  aad non-
             Fewer*! action* conceminf such  effect*.
              (I) Th* Administraior thall complete (he research and  study
             and submit che report required under paragraph 1 1) not later than
             twenty-four  month* from  the dale  of enactment of the Solid
             Waste Oinpuaal Act Amendments of  KM. L'pon completion of the
             itudy. the Administrator 'hall prepare • summary of the flndinn
             of the study, a plan fnr research, development, and demonstration
             respectina; the findings 01 the *tudv. and ihall suomit the I'mdino
             and  the  Jtudy, along with any recnmmendaiiona  rnultint from
             such study, to the Committee on Environment and Public Works
             of the United states Senate and  the Commute* on Interstate and
             Foreign Commerce of the L'nited State* House of Representatives,
     RCRA Compliance/Enforcement
              1-42
    Guidance Manual   1984
    

    -------
      Chapter One
    The Resource  Conservation  and Recovery Act
      (1) Thm  art aathorrud  t»  bo  appropriated not to neeed
    J1.M«.«M to carry out iiw provwion* af HIM suboection,
      (•i MATSUAU GKNIKATID FtoM TNI COMIUSTIOM or Coxt
    AND OTMB  Foaa Pun*—Th* Administrator shall conduct a
    detailed and eompr*h*n*iv* study and submit • report on the *d-
    vow* effects a* human (Milk and UM environment, if any. of UM
    Hiin-1 and utilisation of fly **h VMM. bouatB **k  WMU. sltf
    WMM. fmo CM «mi**ion control WM**. and other byproduct mate-
    rial* cvMraud primarily fro* UM  nm*aitla* of coal or OUMT
    fop*! ten. Sock *»dy shall Indod* an snaly*** of—
         (1) ttesourn and votmmM of such material cesMrated per
         (I) prevent disposal uid utilisation pfattk«ai
         (3) potential dancer, i/ any. to Human health and UM envi.
        ronsBont from UM dl*po*al and rauM of Me* naunalK
         (4) ioniMtiurf e>Mi ii vhkli •aacvr u bvawa bmUk or
                                   k dancer to human heal
                                   runoff or  leark«u hat
         (J) alternatives to t*mnt <  .
         (I) tho ewt* of such alternatives:
         (7) the impact  of thco* alternative* on UM UM of coal and
        other natural resoumc and
         iS) UM current and potential utilisation of sock material*.
    In tanheranc* of this study. UM Administrator shall, a* he deem*
    appropriate, review nadirs and other action* of other Federal and
    State afincie* concerning such material snd invite participation
    by other concerned panie*.  including industry and other Federal
    and State agencm. with a  VM* toward avoiding duplication of
    effort. Th* Administrator shall publish a report on such study.
    which shall include appropriate findings, not later than twenty.
    four month* sfUr th* enactment of UM Solid Waste Disposal Act
    Amendment* of l»M. Such study and finding* shall be submitted
    to the  Committee on  environment and Public Works  of tho
    United  SUMS Senate *nd th* Committee  on Interstate and For-
    «cn Commerce of th* United Slate* HOUM of Representatives.
      lo) CtmXT KILN DUST WASTS.—Th* Administrator shall con.
    duct a detailed and eomprthmsiv* study of UM advene effect* on
    human health and th* environment, if any, of UM disposal of
    cement kiln dust waste. Such study shall include in analysis of—
         (1 > th* toure* and voiuoM* of such material* generated per
        y*»r.
         12) priMM disposal prattksai
         (3) potential dancer, if any. to human health and UM  rnvi-
        ronment from th* disposal of such materials:
         (4) documented case*  ia which danger to human health or
        UM environment ha* been proved:
         (5) alternatives to current disposal nulhoati
         If) th* costs of such alternative*:
         (7) the impact of those alternative* on th* UM as* natural
         (SI th* rurrent and potential utilisation of tack material*.
    In furtneranc* of tht* ttudr. the Adminiitnior thalL a* he deem*
    appropriate, review itudle* and other action* of other Federal and
    State acencie* conceminf luch  w**t« or material* and invite par-
    ticipation br  other  concerned panie*. includinc induMrr *nd
                                       82
    
            other Federal and State atencie*. with a »iew toward avoidinc du-
            plication of tffon. The Adminiitrator ihall publuh  a report of
            stick study, which shall include appropriate Hndiafs. not  later
            than ihinr-tix month* after the date of enactment of the Solid
            Waate OUpoasl Act amendmenu af t»M. Such report shall  be
            submitted to UM Committee on Environment and Pubilc Work* of
            UM  United State* Senate and the  Committee  on Interstate and
            Forttfn Commerce of th* United Suu* HOUM o« Representative*.
             i pi MATMIAU CINMUTSD FIOM THE Errt ACTION. BCNCficu-
            TMW. AMD PBOCMINC or 0«u AND MINCSUL*. INCLUDINC PHOS>
            PHATS Ron AND OVIMUBOCN FMM URANIUM  MmiNC.— The
            Admiabaraior shall conduct a detailed and comprehensive study
            on UM adrtrM effect* on human health and th* environment, if
            any, of UM dUpcaal and utilisation of solid won* from UM titrme-
            ucw. beneflciation. *nd proce**in( of ore* *nd nuneraU. includinf
            photphate  rock  and overburden from uranium  miatnf. Such
            study shall be conducted in conjunction with UM study of mining
            wMU* reejuind by tubotnion 1 0 of Uii* section and shall include
            an analyii* of--
                 (I ) Us* nurt* and volume* of sock material* iwneraud per
               year
                 12) present disposal and utilisation practices:
                 (3) potential dancer, if any. to human health and the envi-
               ronment from th* di*po*al and reuse of *uch material*:
                 (41 documented cases in which  dancer to human health or
               the environment ha* been proved:
                 i*w toward avoidinc du-
            plication of tffon. The Administrator shall publish • report of
            such S4itdy, which shall include appropriate findinc*. in conjunc-
            tion  with UM publication  of the report of the study  of mmmc
            waste* required to be conducted under subsection i O  of thin sec-
            lion. Such report and findinn shall be submitted to the Commit-
            Wo on  Environment  and Pubilc Work*  of the United  States
            9enal« and th* Committee on Interstate and Foreign Commerce
            of the United State* HOUM of R*pr**eniauv«.
                 .1 AuTNoaiXAnow or ArraomiiATioNa.— • Th*r* *r* authorised
           to bo •perophaMd not to escotd 48.000 000 for th* fiscal yean 1978
           and 1979 to carry out this section other than
                                                                                                      subMcuon i
             OOOaOfMATMM. OOUaTTION. AND OUBIMINATION Or IHfOKMATIOH
    
             Sac.  8003.  (a) IHPO»M*TIO» — The Adminutrator shall develop.
           coiled, evaluate, and coordinate information on—
                1 1) method* and COM* of in* collection of solid *a*w.
      RCRA  Compliaace/EaforceoeaC
                                      Guidance  Manual  1984
    

    -------
      Chapter  One
    The  Resource Conservation  and  Recovery  Act
                                 <3
    
          '2l solid weat* management practice*, including data on the
        different management method*  and the cost, operation, and
        maintenance of such method*:
          (3i the amounta and  percentage*  of reeource* (including
             y> that can  be ieu>»eied from solid weate by use of var-
                 ied material*] lotid watte management  pracnca*
        aod vanooa techaologjaafi
          (4) method* availaM* to reduce the amount of solid weate
        that • generated:
          <5> eating aad devatoeing tachnolngia* for the recovery of
        eaargy or material* froai solid wojta and the cost*. retiaftUity.
        aod f**f rsika aasociatad with *uch tachnologjea:
          (O luaaiiliius solid waata. including incident* of damage re-
        suiting ftvoi (to dJepoeiJ of haaardou* aolid wait**; inherently
        aad potentially haaardou* solid waaie*: method* of neutralising
        or property dctpeauig of1 aaaarooua solid waetea: facilities chat
        properly dispose of ha*ardou* weater.
          (ft method* of financing resource recovery faoJitMt or. ianf
        tary IIH«II^ or  luiardoiM  toUd -«aau traaunant faolitit*.
        • hidM»»f » aporaoruM for th« mtity a*vwootii« ««ch faaliiy
        or laadflll 'UUunf into aeeounc (h« amount of solid wan* rta-
        fonaelr t*pict«d to o» avaiiaoi* to lueh tntityi:
          •8) th« ivatiaeilitr of market! for :hc purciias* of resource*.
        •itiwr mawriaJa or «n«rfy. raeovcry from solid wasu: and
          '9> nMarcn and do««ioom«ni pro.iKta r««o«ctin«; iMid WMM
        manaftoxnt.
       LII»*«T-—U Tha Adminutrator shall «*tabli*h and maintain
    a central rtftrvnn library for  the
    extent practicable, be collated, analyzed, verified, and published
    and shall be  made available to State and local government* and
    other penona at reasonable time* and subject  to such  reaaonable
    charfta at may be neeeaaary to defray expenaaa of making such in-
    formauoo available.
                                          S4
    
              'O  Moon. ACCOUNTING Srrrtx.—fn order :o aaaiat State and
             local  fovernmenu m detarouotnc :he co*t and revenue* aasoeiaiad
             with  vhe eoUeetion and dispcaal of solid  wa*u and  with  resource
             recovery operation*, the Admiawtraiar shall develop aad publish a
             rammmaddad modal COBS and revenue accoununa; syttan applica-
             ble 10 tite solid waata manaaemeflt function* of State and local gov-
             enuBaaa. Such  syatacg shall be ia accordaace with generally ac-
             cepted aeeounung pnnople*. The Adouniatracor shall periodically.
             but aot leas freouenUy than once every five vears, review  «uch ac-
             counting syatam  and renaf it as nacaaaary.
              (d)  MOOCL Cooea.—The Adminacrator it autaoraed, ia  coopera-
             tion  with aoaroprute Sate and local ageoaae. to recooupend
             model codas, ordiaattcaa, aad statuu*. pnmding for sound  solid
             waete managetnenL
              ni l*reaaunoN Pmc.nm-<1) The Adminutrator shall imple-
             ment  a program  for the rapid rliiaeminatinn of information on  solid
             wane management. ha*arooua  watte management,  resource con-
             servation, and method* of resource recovery from solid wa*ta. io-
             cluamf the mult* of any relevant reaearca. investtgation*. aspen-
             meou. survey*, atudiea. or other lA/ormauon which may be uaaful
             :n th» implementation of new or improved solid waata management
             practice* and method* and  information  on  any other lechnical
             managerul.  financial, or .Ttarket aspect of resource conaervauon
             and recover/ facilities.
               i The .Adninutratar ihall develop and implement educatiaoal
             program* to promote cituen understanding of the need for  environ.
             mentallr sound solid waalo management practice*.
              •ft CooaoiNAnoN —In collecting and duaeminatine; information
             under this section, the-Adminutrator shall coordinate hi* action*
             and cooperate te  the maximum extent pceaibie with State and  local
            authontiea.
               Sftcua RomcnoM.—Upon raqueat the full range  of alter-
             native technologic* proarim* or precemea deemed feasible to  meet
             the resource recovery or resource conservation need* of a  junadic-
             tion shall be de sen bed in such a manner a* to provide a sufficient
            evaluative beau from wnich the jurisdiction can make it* decision*.
             but no officer or  employee of the Environmental Protection Agency
            shall,  ia an  official capacity, lobby for or otherwie* reprewnt an
            agency position in favor of resource recovery or resource conaerva-
             uon. a* a policy alternative for adoption into ordinances, code*, reg-
             ulationa. or law by any State or political subdivision thereof.
                         rvL
              Sac  8004. (a)  Ai/ntoarrv.—The Administrator may enter into
            contract* with public agenciea or authoritiea or pnvate persona for
            the construction and operation of a full-eeaie demonstration facility
            under this Act. or provide financial aaaiatance in the form of (rant*
            to a full<«eale demonstration facility under thi* Act only if the Ad-
            minutrator find* that—
                  il) such  facility or propoatd facility will demonstrate at full
                scale a new or significantly improved technology or process, a
                practical and significant improvement in Cdiscarded maianai]
                mild watt* management practice, or the technological feasibil-
                ity aad coat efTectivenea* of an existing, but unproven tecnnol-
      RCRA  Compiiaace/Eaforceoient
              1-44
    Guidance  Manual   1984
    

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            WASHINGTON DC  2C46C
    
    
                               SEP 28 1984
     MEMORANDUM
    
     SUBJECT:    RCRA Compliance/Enforcement Guidance Manual
    
     FROM:       Courtney M. Price
                                   	
                Assistant Administrator fo>
                  Enforcement and Compliance Monitoring
                Lee M. Thomas
                Assistant Administrator for
                  Solid Waste and Emergency Response
     TO:         Addressees
          Attached is a copy of the RCRA Compliance/Enforcement
     Guidance Manual.  The Manual represents a joint effort by
     the  Office of Enforcement and Compliance Monitoring and
     the  Office of Solid Waste and Emergency Response to develop
     a  comprehensive document that provides essential information
     to program personnel and enforcement attorneys on the substa *ive
     and  procedural requirements necessary to ensure compliance
     and  prepare enforcement cases arising under the Resource
     Consfrrya.tipn<.an4 Recovery Act (RCRA).  The Manual not only
     containsafpecz^£c guidance "6n developing enfo^rcejniwi^ cases,
     but  alsolreferences all RCRA enforcement poli«y»«nd gui'danc .
     In particular, the Manual-complements the •fouthjOf^her basic
     cojnpiiance/ehforcenent hazardous waste managemtfltj tools:
                                                '-...• V«*T.
               0  The RCRA .Compliance/Enforcement Guidance
                  Manua.1. Policy Compendium — which contains or
                  references the operative RCRA policies;        ..
                                                    • * v >-
               •  The RCRA/CERCLA Case Management Handbook —
                  which provides detailed guidance relating to
                  hazardous waste judicial case procedures;
    •                                               •••»-.
               0  The CERCLA Compliance/Enforcement Policy
                  Compendium — which contains or references th. *
                  operative CERCLA enforcement policies; and
    

    -------
                                 -2-
              •^ The Superfund Guidance Manual  — which contains
                 program guidances relating  to  CERCLA.
    
         The RCRA Compliance/Enforcement Guidance Manual  is
    a dynamic document that will be supplemented or modified
    periodically as policies and procedures  change.  TO facilitate
    the process of communicating supplemental material to Manual
    users, a return form is attached to this memorandum to be
    filled out and returned to Headquarters  by  the ultimate
    Manual recipient.  Headquarters staff will  maintain a mailing
    list of Manual users so that any revisions  that need to be
    made, or any new enforcement policies that  are subsequently
    issued, may easily be transmitted to the proper individual.
    
         Although it is difficult to make a manual of this sort
    entirely satisfactory to all potential users, it is hoped
    that with the Manual's usage, any problems  that do arise or
    any revisions that should be made will be brought to our
    attention.
    
         If you have any questions about matters contained in
    this memorandum, please contact Ted Piretog of the Office
    of Enforcement and Compliance Monitoring (FTS-475-8782) or
    Marcie Kleban of the Office of Solid Waste  and Emergency
    Response (FTS-475-8235).
    
    Addressees:
    
    General Counsel
    Assistant Administrator for Policy, Planning
      and Evaluation
    Senior Enforcement Counsel
    Regional Counsels
    Regional Waste Management Division Directors
    Associate Enforcement Counsel for Waste  Enforcement
    Director, Office of Waste Programs Enforcement
    Director, National Enforcement Investigations Center
    Assistant Attorney General for Land and Natural Resources
    
    Attachments
    
    cc:  Regional Administrators (w/o attachments)
    

    -------
                               RETURN FORM
                            I-M-P-0-R-T-A-N-T
    
    To keep abreast  of  the latest revisions  in  the current RCRA
    Manual, and to ensure  receiving  notification  of  any new en-
    forcement policies, this form must be filled out and returned
    to Headquarters by the ultimate Manual recipient.
    
    
         Please return this form (and any changes of address) to:
    
             The Office  of  Legal Enforcement  Policy  (LE-130A)
                     Environmental Protection Agency
                            401 M Street, S.W.
                         Washington,  D.C.   20460
    First Name                (Please Print)           Last Name
    Title                                              Division
                               Street Address
    City                           State               Zip Code
    Date Manual Received
    

    -------
    v>EPA    Resource Conservation
               and Recovery Act
               Compliance/Enforcement
               Guidance Manual
               U.S. Environmental Protection Agency
               Washington DC  20460
    

    -------
    Table of Contents
    Chapter One  Overview
    
    
    
    
    1  Purpose of Che Manual                                          1-1
    
    
    
    
    2  Overview  of Che Ace                                            1-3
    
    
    
    
    3  The Resource Conservation and Recovery Ace (as amended)           1-L1
    
    
    
    
    4  RCRA Regulacory Elemencs                                        1-51
    
    
    
    
    
    
    Chapter Two  General Operating Procedures
    
    
    
    
    
    
    Chapter Three  Compliance Monitoring Procedures
    
    
    
    
    1  Incroduccion                                                   3-1
    
    
    
    
    2  Inspections                                                    3-3
    
    
    
    
    3  Warrancs                                                       3-9
    
    
    
    
    4  Subpoenas                                                     3-21
    
    
    
    
    5  Seccion 3013(a) Orders                                          3-23
    
    
    
    
    
    
    Chapter Four Documentation of Evidence
    
    
    
    
    1  Incroduccion                                                   4-1
    
    
    
    
    2  Inspection File Review                                          4-3
    
    
    
    
    3  Review of Adequacy of Evidence                                  4-5
    RCRA Coapllance/Eaforceaene               i            Guidance Manual  1984
    

    -------
                                                              Table of Contents
    Chapter Five  Determination of Appropriate Enforcement Response
    
    1  Introduceion                                                      5-1
    
    2  Level of Action Policy                                            5-3
    
    
    Chapter Six  Administrative Enforcement Actions:
      Notices of Violation and Administrative Orders
    
    1  Introduction                                                      6-1
    
    2 -Administrative Enforcement Proceedings                            6-3
    
    
    Chapter Seven  Administration Enforcement Actions:
    Civil Penalty Proceedings
    
    1  Introduction                                                      7-1
    
    2  Elements of a Violation:  Administrative                          7-5
    
    3  Complaint Preparation and Filing                                  7-7
    
    4  Prehearing Stage                                                  7-2.1
    
    5  Hearing Stage                                                     7-41
    
    6  Post-Hearing Stage                                                7-57
    
    
    Chapter Eight  Judicial Enforcement;   Civil Actions
    
    1  Introduction                                                      8-1
    
    2  Elements of a Violation:  Civil                                   8-3
    
    3  Procedures for Filing Actions                                     8-7
    
    4  Injunctive Actions                                                8-19
    
    5  Settlement Agreements                                             8-39
    
    
    Chapter Nine  Judicial Enforcement;  Criminal Actions
    
    
    Chapter Ten  Post-Settlement Enforcement
    
    
    Chapter Eleven  Special Considerations
    RCKA Compliance/Enforcement              ii            Guidance Manual 1984
    

    -------
      Chapter  One
                                                            The  Resource  Conservation  and  Recovery  Act
                                 «8
        off, aura**  or practice, and will       .
        tnL SUM. local or commercial facility which haa bMn con-
                               and will nee duplicate aay other Fed-
               	nmeraal  facility which haa been eon-
               I or «uh respect  to which construction ha* b«fun ide-
               d at of the data  action a takao by tha Administrator
             rtoaiAcU                             	  _,
          (2) aach contract or laiaiiinr awat* tha requirements of sec-
        tion 8001 tad meeta other appikmaJe requirementa of tha Ad.
           Twt UWTATIOW.—No obligation may ba made by  tha Admin-
    istrator  for financial  aamaunct  under  thia lubcitlt for any full-
    scale demonstration facility after tha data tan yaan aftar tha en-
    acunaat of thu tacuon. No tapanoutura of funda for any tuch full-
    aeala damonitration facility undar thia subutla may ba mada by tha
    Adminiatraur aftar tha data fourtaan ynn aftar tuch data  of in-
      to Coar SMAAIMC.—Wnaravvr practicable, ia conitrucua«. oparat-
    ing. or prov^inf finaaoal aaautanca undar thia subtitle to a full-
    icmle danwnatrmtion facUiry. :he Admiaiatrator »hall endea««r to
    enter into afreementa and make other arrangementa for maumua
    pracacaele  coat thannc with other federal State, and local afeo-
    ciaa. private penoaa. or any coffloiaation themf.
      i2) Tha Admiaiatrator mail eater into irranftmenu.  wherever
    practkaole  and oaairaala. ta proride monitonnc of full-ecale solid
    waau faolitiaa I whether or not canatructeri or operated under thia
    Act) for purpoaaa at obtajnuif informauon concamin( the perform-
    ance, and other atpecta, of such facilitiaa. Where the Administrator
    pnmdea only ntoaitonac and evmluauon inatrumenis or penonnel
    (or botaj or fuada for such  inatrunenia or penonnel and providaa
    no other financial -tii-ir- to a facility, notwithstandins; section
    8001(el3). title ta any invention  made or conceived of in  the course
    of de*elopiaf. coaatrucunc. or oprratint such  facility shall net ba
    required ta vest ia the United States and patania reepactinf such
    invention shall not be required to be iaaued to the United Stataa.
      .d) PwOHramoN.—AAar the date of enactment of thia section, the
    Administrator shall not construct or operate any full-scale facility
    lescept by contract with  puolic afencies or authorities  or private
       IPKUL truor AND ontONvnunoN Mttutcn ON accovnr or
                     USIFUL CMISOT AMO MATUUAU
    
      Sac  8006. 'at Sruona.—Th« Administrator shall conduct ftudis
    and  aavrlop recommendations  for administrative or  leyisiativ
    acuoa on—
                                  66
    
          (1) means of recovehnf  materials and energy from  solid
        waau. recommended uses of such materials and energy for na-
        tional or international  welfare, inciuainf .denti/icauon of po-
        tential markets for such recovered risotucss. the impact of dis-
        tribution of such resources on esjstiaf markets, and potentials
        for eneriy eonaarvmtioa through reeourts coneerrauoa and re-
    
                                      generation which have  been
        taken voluntarily or ia raaponaa to governmental action, and
        those which  practically could be taken in the future, and tha
        economic, social  aad  environmental consequences of  rach
          '3) methods  of collection,  separation,  and cantainerixation
        which will encourage efficient uoliamtion of facilltiae and con-
        tribute ta more effective prognma of reducuoo. reuse, or dis-
        posal of waataa*
          14) tha  use  of federal  procurement  ta develop market
        demand for recovered resources:
          i a) recommended incentives i including Federal graata. loaaa.
        aad other assistance) anc! disincentives to accelerau the recla-
        mation or recycling of matenala from solid wastes, with special
        emphasis oa motor vehicle hulk*;
          ••61 the effect of Misting public  policies,  including subsidies
        and economic  incentives and disincentives, percentage  deple-
        tion allowance*, capital rams treatment  and outer tax  incan-
        tivt» and disincentive*, upon  the recycling and reuse 01 materi-
        als, and the likely tiTect of the modification or elimination of
        «uch incentive* and disincentive* upon the .-ruse, recycling and
        conservation of such  materials:
          17) the neeaasity and  method of imposing disposal or other
        charges oa packaging, container*, vehicles, and other manufac-
        tured gooda. which charge* would reflect the cost of final dis-
        posal, (he  velue of  recoverable components of the item,  snd
        any social  coata associated with nonrecycling or uncontrolled
        disposal of of such items: and
          181 the legal  constraints aad irjotuuonal barriers to  the ac-
        quisition of land needed for wlid waste management, including
        land for facilities and disposal sitaa:
          19) in consultation  with the Secretary of Agnculrurt. agricul-
        tural waste management problems and practice*, the eneni of
        reuaa aad  recovery of resources  in such waste*, the prospects
        for improvement. Federal. State, and local regulations govern-
        ing such practices, aad  the economic social and environmen-
        tal consequence* of such practice*: *nd
          HO)  in consultation  with the  Secretary  of the Interior.
        mining waste management problem*, and practice*,  including
        an aasaaament of Misting  authentic*, technologies, and eco-
        nomic*, and the environmental and public health consequences
        of such practices.
      ib)  OtMON9nurtON.—The  Administrator is  also  authorised to
    carry out demonstration  projects to test and demonstrate methods
    aad techniques developed pursuant to subsection ia'.
      
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                                                          ioe Resource  Conservation  and  Recovery  Act
                   IOOVBCI ueovar jrmaa *w» ixrtovo MUD
                                      Mcasna
      Sac 8001 iai Atmeaarrr.— The Adniniatmor ia authorised co
    ma*a graata pursuant to JIM aocuoa to any Stau. municipal. or
    iatantat* or lacarauaiapeJ ageacy for the detBoaawauoa of re-
    source recovery tyataoj* or for the conatnictioB of new or unproved
    f^H weata dijpoeal faolioe*.
      IB) CoNMTiom.— 41) Any grmot under thie Mctiaa for the deenoa-
    iBicioa a/ • leauurca iwuivtrr »»•«*» my b* made only if it ( A) ia
    oasaaatant with lay plane which meat the requirementi of subtitle
    0 of this  Act  (B) » coainunc with the fjidtiiitai recommended
                                        (Q ia designed  to provide
                                            t with the purpaee* of
      pursuant  to section  1008 of thia  Act (
      thii Act M itoiiiiniiMil by to* Adminuincor, punuwit to
      (MM praaalfiMd und«r nihMi nmi id) of thu Metian: and (0) pn>
      nd« u «qiuuM« *yn*oi for diKnbucinf th« COM* uaociaud with
      OOBBCTUCUOO. operation, cod ouiawnaiM of any i Minim neo*«ry
      ryuna taont titt u«tn of web tytum.
       (2) The F«o*raJ shar* for «ny project to which pananph (1) *p-
      fUm thai] not b* aior* thaa 75 pcmnc.
       ict LOUTATIO**.— il> A (not uad«r thw tvetioa Tor th« eoiutrue-
      tioo of • nrv or improvvd Miid VMM OMpwoJ f*oJi«y may b» mad*
      onJy if—
           (A) a Stow or inunuta piaa for tojid »a»u ditpoaai haa
          bara adoptad which appiiaa to th« ar*a mvolvod. and tht faeili-
          ty to b* oooatrueMd (i) if eoaaiauat vith tueh plan, -ii) ia in-
         cludad  ia a eoapr«haa«i*« piaa for th« art* invoiwd vhich ia
             fctory to th« Adainiasntor for the  purpoea* of thu  Act.
             (iii) ia mniiarant with (he niideiiAoa ?eoDiiuBeaded uAder
                1008. and
          iB) the project advances the state of the art by applying new
        and  improved terhnxniae  ia  reducing  the  nvironmtntai
        impact of solid weate diiaeaai ia achieving recovery of energy
        or resource*, or in recycling uaerul matanala.
      (2) The Fedarml share for aay project in which paragraph (1) ap-
    plies shall be not more thaa $0 percent ia the caae of a project
    serving aa area which includea only one municipality, and  not
    more than 75 percent ia any other can*.
      (d) Racuuinoia.—11) The Admiaiatraior shall promugate regula-
    tion* estanliahing a procedure for awarding grant* under thia sec-
    tion which—
          (A) provide* that project*  will be carried out in communities
        of varying SUM.  uaoer such condition* aa will aseiat in solving
        the community  weate problem* of urban-uiduatnai centers.
        metropolitan region*, and rural area*, under repreaentauve ge-
        ograpaic and environmental condition*; and
           to
    the uae by the applicant of cofflpreoenaive rtgiooal ar metropolitan
    area planning.
      (ei AAomOMAii LuoTATtOM.—A graat under thu ascoort—
          (1) may be made onlr ia the aaiouat of the federal share of
        (AJ the tttim>'"f iota/ deaiga and coaatructioa coata, plua >B)
        ia the caae of a grant to which subetetioa ib«l) appliaa,  the
        flm-year operation aad maiaiananc* eotta:
          (2) may not be provided for land acquiaition or lexcep* a* oth-
        
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      Chapter  One
    The Resource  Conservation  and Recovery  Act
                                 61
     	,	.._..,	.              i el ike Ma*
      Sue. 4.  provide technical and financial
    •esutaaes far • research program CD control leachata from  the
    UaagoUen t.«in4Hii in New Cod* County, Delaware.
      (b) The leseenh program authoraed by thai section shall be de-
    signed by-the New Castle County area wide waste treatment man-
    •gement program, ia couparaben with the Environmental Protec-
    tion Agency, to develop method* for controlling leachata contami-
    nauoo from abandoned and other landfills thai may be applied »t
    the Uangoilen Landfill  end  at  other  :«~)f!ii«  throughout  the
    Nation.  Such  research program shall investigate all alternative so-
    lutions or corrtctv* actioea, iadudinf—
          il) hydrenolofie ijeOauon ol J» laodflll eembiiMd with  toa
        collection and trMtimoi of laaehaic
          12) ne*r»Ooa of the rafuaa. foilomd by MOM cyp* of incinar-
        auoa;
          i3> ticawboa  and trmnsporution  of tha rtftua to  another
        landJUl. and
          <4> coliaeooa  and  iraaiimint of contiminiiarl laaehau or
        ground waiar.
    Such roatareh pracrma shall conoder the aeoaomic, maaal. and «n-
    vmmmntaJ conatqueneai of «ach tueh altarnati**.
      ie) Th* Adouniftrmcor  of tha Ennrenmental Protection Aavney
    inall make available panonoel of the Afoney, indudinc tho*e of
    the Solid and  Haardoui  Waau  Raaaareb  Laboratory iCineuuiau.
    Ohiok and ihatl arrant* for other Federal penonnel to b* made
    available, to provide technical  eenetino and aid in tueh reoeareh.
    The AdBiiniftratar may provide up to CSO.OOO, of the luma appro-
    pnaud  under the Solid  WMU Dwpoaal Act. to the New Caule
    County araawide wane treatment manafvraent profran to conduct
    fuch raamreh. inciudinc obuuninf coneuitani Hrvtcaa,
      id) In  order  to prevent further daaaf* to public water (uppliee
    dunnf the period of thia (tudy. the Administrator of the Environ-
    mental  Protection A««ncy «haU provide  up w fiOO.OW  in eexh of
    ftacal  vean 19TT and 17T8.  of the MM appropriated  under  the
    Solid Wane Diipoeal Act for the operatinc coau of a counter-pump-
    ing program to contain the laachau from the Uanfollen LandfilL
    
      (NOTt TNI rOLLOwrnc PMVISIOHS Of Pt/BUC LAW «4-M DO WIT
                 AKC.ND TNI souo WASTB oisroaAi. ACTI
    
          DHaCT AND MATBUMJ OOHS0VATIOH AMB ICOOVCST
    
      Sac. 32. ia) The Confraa finds that-
          ill lifnificant  lamnpi could be realised by constrvinf tnateh-
        ali  in order to  reduce  the  volume or quantity of material
        which ultimately becomes '
    iac
    vol
                                         TO
    
                  (21  solid wane contains  valuable tnerty and  material re-
                sources which can be recovered and  used  thereby consamnt
                iaceaaufty scarce and expensive foaul fuels and virfin matan-
                ale:
                  (3)  the lOOBiiry of eneror and  materials from  municipal
                   te, sad the conservation of enerfy and materials rontnbut-
                   to such waste itreama, can have the effect of reduanf the
                  ume of the municipal  waste dream and the burden of dis-
                      of ineraasinc volumes of wlid waste;
                  14)  the  wchnoloor  to coneem  leauuius exists  and is coo>
                menially feasible to apply;
                  (S) the tet'hnolop to retem enerfy and materials from solid
                waste is of demonstrated commercial feasibility; and
                  i$)  various communities throughout the  nation  nave differ-
                ent needs and different potentials for eoneemnf resources and
                for utilising techniques for the recovery of  enerfy and maun-
                als from waste, and Federal — — •--~ in planning and imple-
                menting such energy and materials conservation and reeo»ery
                pmfrema ihouid be available to  ail such communities on SB
                equitable basts in relation to their needs and potential.
    
             MATtONAL AflVOOaT COMMISSION ON tOOVICS COMSOVATIOM AMD
                                     MCOVUT
    
             Sec. 33. '«IH There is hereby ensbliiried in the executive brand)
            of ch* Coited States  the National Advisory Commission on Re-
            jourct Conservation and  Recovery, hereinafter in this section re-
            ferred to as the "Commission".
             •2) The Commission shall be composed 01' nine memben u> be ap-
            pointed by  the  President.  Such memben shall  M qualified by
            reason -of their education, training, or experience  to represent the
            view of consumer groups, industry associations,  and environmental
            and  other groups concerned with resource conservation and recov-
            try  and at least two shall be elected or appointed State or locai of-
            ficials. Memben shall be  appointed for the life  of the Commission.
              A vacancy in the Commission shall be filled in the manner in
            which the original appointment was made.
             < 4) Five memden of  the Commission  shall constitute a quorum
            for transacting business of the Commission except that a lesser
            number  may hold  hearings  and conduct  information-fathering
            meetings.
             1 5) The Chairperson of the Commission shall be designated by the
            President from among the memben.
             '6) Upon the expiration of the two-year period beginning  on iA)
            the date when all initial memben of the Commission have been ap-
            pointed or when lB> the date  when initial funds become available
            to carry out true section,  whichever is Ister.  the Commission snail
            transmit U> the  President, and to each House  of the  Congress, a
            final report containing a detailed statement of the ftndmo  and
            conclusions  of the Commission, together with  such recommenda-
            tions as it deems advisable.
             (7) The Commission shall  submit an interim report on February
            IS. 1982, and the Commission may also  tuomn. for ietislative  and
            administrative actions  reiatinc  to the Send  Wa»te Disposal  Act.
            other interim reports pnor u> tne submission 01 its  final report.
      RCRA Compliance/Enforcement
              1-47
                            Guidance Manual  1984
    

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      Chapter  One
                                                           The Resource  Conservation  and Eecovery  Act
                                71
    
      ig) -«•« '•ftmmiffr— shall eease to exist 30 days after submission
    of ia ..aai report.
      ibl The Commiasioa shall**
         ill after consultation with the auyiupriafs Federal atvnoss.
        review budawtary pnontios relating ta rssoures conservation
        aad isaoisn. oetarmiaa to what assent program foals relating
        ta lassuica eonservauon sad isuiisry  «r» being realised, and
                                         the appropriate profram
                    say
        sad ISUHSIJ imrieilnes or
                      the
    or  niuppsij
    rw/ulaoons:
                                              or SBVUWJS potential
                              aad isuivsiy. including the availabil-
        ity of msrkaa for ismiaied totrp sad materials. for eeoaom-
        ie materials sanaa* ihrouct coaatrvauoa.  sad maks  recom-
        msndsnnns eoacerniaf the uolisauoa of such potential:
          (4) identify. aad make recommendations addreuinf. institu-
        tional nsjpTsrlss impediaf the development of resource conssr»
        ration aad rtMure* raeowy; ud
          (5) •••iiMM tM MMU* of lauuiw cwMMvatioa «nd r»eo»iry
                  ud fjntra* iadudin« both tnaMrUU and ttxror
                Mehnoiofui. r*eyeiia( oMthod*. and other  innovstiv*
        mnhodi for both eonorvuif ntrfy and OMUhai* nmcubli
        from (olid wait*.
    TH« r»m» rvftnvd to in o«rat actual per-
    formaac* of Coramoatoo duuoa. iadudinc trt*«4 timt: and whil* *o
    wnriac awgjr from thnr hoOMa or rafular piaca* of bu*in«M. ail
    oMmton of the Comaianoa nay b« allowed travel Mpenaea. in-
    eiudiat per dien ia  lieu of iuaatctenee.  « autherued  by faction
    5703 of title 5. United Sutaa Cod*, for penoai in Corvmavtat *erv-
    iot enpioyed iatemuiMatly.
       Subject to tuch rule* aa may adapted by the Commianon. the
    Quurpenon. without regird to the prorunona of title  5, United
    Sucae Code, fovenunf appoiatmenw ia the competitive tervice and
    without rmrd to the provtaioaa of chapter 51 and lubchapter UI of
    chapter S3 of inch  title reiatiaf te rlaeaifinnna  aad Cenerml
    Schedule pay ratea. shall have the power to~
          (A) appoint a  Director, who thail be paid at a rate  not to
        toaed the race of baaic pay for level I OS- 1 6 of the General
        Schedule: and
          iB> appoint and flx the compenaatioa of no* mare  than 5 ad-
        ditional staff personnel.
      (3) This Commission a authoraed ta procure temporary aad in-
    termittent services of txperta and consultant* a* are neceesary to
    to the extent authorised by section 3109 of title S. United Sutei
    Code,  but at rales not to eiceed the  rale specified at the time of
    such service for frmde OS- 16 in section JXU of such title. Experts
                                                                                                72
    
                                                                   sad oonaultaod may be employed without compensation  if they
                                                                   aajFss) la do so ia sdraacav
                                                                     (4) Upaa raqueax of the Cocmuanon. the heed of any Federal
                                                                   anoey • authorised ta detail oe a reimbursable or aoareunauna-
                                                                   bfc beasa say of the psi»iiinl jf such sajeacy to the CoounasBoo to
                                                                   aa*a» (be Pimm •inn ia earryusf oat ia duties uader this section.
                                                                     (5) The rpBimissinii is eawmpt from the requirvmeais of' sections
                                                                   4301 throusii 4308 of title S. Unitad Stales Coda,
                                                                     (A Too rnmmsainsi m authonsad to  eater iaia caatnets  with
                                                                   PedaraJ sad Stats anaoes prrvmte Anns. insritntioM. sad individ-
                                                                   uals tar the ooaduct of research or
                                                                                                   surveys,
                                                                                                   r to the
                 the preparatioa of re.
                discaam of id duoas
                                                                     (7) la order ta •
                                                                   aad wwk at the
     m psrtaiaiat to the riming for.
      the Cnmmisiinn  is authorised  to
                                                                                i aad coatrmcu without rsfmrd lo ssctioa 252 of title
                                                                   41 of the Unitad Staua Coda, psruiainf to advertisiaf aad compet-
                                                                   itive btddins^ aad may arraofe  for the praiiaf of aay material
                                                                   penaiainc to the want of the Commission without regard  to the
                                                                   Government Pnatiaf aad  "••«'•-§ Bsnilstinns aad say related
                                                                   laws or rsculatMRS.
                                                                     iS) The Commission may use the United Ststas mail ia the same
                                                                   meaner and under  the same conditions as other departments aad
                                                                   anneies of the United Staiss.
                                                                     19) Toe (Vimmitsion may secure directly bom say department or
                                                                   afency of the Unitad  States informstion necessary to enable it to
                                                                   carry out ia duties sad functions. Upon  rsinsssi  of the Chairper-
                                                                   son, the head of say such Federal afency shall furnish such infor-
                                                                   mation 10 the CommiBMon subject to spplieaaie law.
                                                                     110) Financial  and admuustrative ssrvxas I including those relat-
                                                                   ed to budfet  sad aceountimr.  ftnaneal reportiaf. personnel, sad
                                                                   procurement) shall be provided to the Commssnon by the General
                                                                   Services Administration for which psrnent shall be made in ad-
                                                                   vance, or by reimbursement, from hinds of the Commisswn. in such
                                                                   amounu as may be aarsed upon by the Chairperson of the Commis-
                                                                   sion f T^ the Admiaistrsior of Goosral Services*
                                                                    Id) (a earryinc out its duties uader this section the Commission.
                                                                   or any duly authorized committee thereof, is authorised  to hold
                                                                   such heahnas and tane testimony, with respect to matters to which
                                                                   it has s responsibility under this sscuoa ss the Commission may
                                                                         advisable.  The  Chairperson  of  the Commission  or  any
                                                                           authorised by him may  administer oaths or affirmations
                                                                   to witnesses sppeanna; before the Commission or before any com-
                                                                   mittee thereof.
                                                                    (ei From the amounta authorised to be spprophsied under the
                                                                   Solid Wssu Disposal Act  for the fiscal years 1981 and 1982. not
                                                                   more than 11.000.000  may be used to carry out the provisions of
                                                                   than
                                                                    iNOTVi TNI FOLLOWING MW1VI8IOW9 or ruBUC LAW M-iSl Ofl .NOT
                                                                               AMEND THI SOLJO WASTC OISPUSAL .«CT)
                                                                     Sac. 2. The Confrsss finds and declares that—
      RCRA  Conpliaace/Eaforcemeoc
                                                                    1-48
    Guidance Manual  1984
    

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      Chapter One
    The Resource  Conservation  and  Recovery Act
                                73"
    
          ID used oil ia • valuable soura of imnasingly scan* energy
        tad material*
          (29 technology waa to rereAae, upreraai. reclaim, and oth-
        erww recycle uaad oil:
          t3) uaed oil lennimta* • threat 10 public hMlth tad the envi-
        reonMat won reused or disposed of improperly, and
    that, therefor*, it ia in the naaaaal inureet to recycle uaed oil in •
    meaner which doe* 00* rnnennirs a threat ta public health and the
    environment aad which ojuaer»*» energy «"* maianala.
      Sac. 4. (U • •'
           «.      •      •       •      •       •       •
      ICJ Before the effective date of th« labtiinf Mndvdf nquirtd ta
    IM pnaenbtd uador MCUOO 383rdXUA) of th* Euro Policy and
    Coratrviuon Act. no nquiiwBMnt at >ar nU* or ort«r of th« Ftd-
    crml Tmd* Commijnon  m*r  apply, or mnain  aoplieaol*. ta any
    container of raercln od IM dttlncd ui Mcuon 38Ab< of tueh Act) if
    •uch raquirtoMnt prondoi that th« containtr muft b**r any lab*i
    r*f«rhii« ta the  fact that it haa OMD d«nv«d from pnvioudy uMd
    oU. Nothinf ui tha tuoaiKUen thail b» eonatrucd ta uTcct any  la-
    baliac r*qiur>n«nt applieabl* la rvcyelod  oil undtr any  authority
    of law co th« trunt men raqumtiMBt raiata co uinoa I'or mwna-
    td UM or any other pcrformanei ehaneunitie of such oil or ta my
    characunatic of nich oil other thaa that raferrtd ta Jt the prtcvo-
    in| atnunn.
    
                    UflB OU. *J * HAXAJUOU* WAIT!
    
      Sac. 3. Not laur than  ninety day* aAer the  data of the  tnact-
    ment  of thia  Act. the Adounuumtar of the Environmental Protec-
    tion Afeney inall—
          11) make a determination at to the applicability ta 
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                                                                                     Act
    RCl
    "u>mpiiance/En"i
                        orcement
                                            1-f
                                                             wiidance Manual  1984
    

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    Chapter One
    4     RCRA Regulatory Elements
    Pursuant to Subtitle C of RCRA, EPA is required  to  issue regulations
    establishing a national system to control all  aspects of hazardous waste
    management from the time a vaste is generated  until the else the waste is
    properly disposed.  This "cradle-to-grave" hazardous waste management
    system is implemented primarily through six major .sets of regulations:
    
         •  Identification and listing of hazardous  wastes that are to be
            regulated  (40 C.F.R. Part 261);
    
         •  Standards  for generators of hazardous  waste (40 C.F.R. Part 262);
    
         •  Standards  for transporters of hazardous  waste (40 C.F.R. Part 263);
    
         •  Standards  for owners and operators of  hazardous waste treatment,
            storage, and disposal facilities (40 C.F.R. Parts 264 through 267);
    
         •  Requirements for the issuance of permits to hazardous was to
            facilities  (40 C.F.R. Parts 270 and 124); and
    
         •  Guidelines  for authorizing State hazardous waste programs to be
            operated in lieu of the Federal program  (40 C.F.R. Part 271).
    
    A requirement of RCRA, though not a part of the  regulations required under
    Subtitle C, is that all persons handling hazardous waste must notify EPA of
    their activities within 90 days of promulgation  or  revision of the
    regulations that identify hazardous waste [see 45 Fed. Reg. 12,746
    (February 26, 1981)].  Notification data include the handler's name and
    address, type of activity, and the type of hazardous waste involved.
    
    Since aid-1980,  over 60,000 generators, transporters, and owners and
    operators of hazardous waste facilities have notified EPA and have been
    assigned identification numbers.  This EPA identification number is us-id on
    the manifest shipping form to track, hazardous  waste ind on all
    administrative reports that are required under the system.  The data
    provided are also  a principal source of Information on the extent of
    hazardous waste activities nationwide.
    RCBA Compliance/Enforcement            1-51            Guidance Manual 1984
    

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    Chapter One	RCRA Regulatory Elements
    
    
    EPA chose to issue Che final RCRA regulations in two stages because of the
    enormous size and complexity of this major new national program, which the
    Agency believes will take several years to implement.
    
    The first group of regulations was promulgated in May 1980 and established
    standards that will ensure continuity in the cradle-to-grave system for
    controlling hazardous waste.  They require, among other things, that
    generators identify the hazardous wastes that are produced and that they
    comply with specific requirements, particularly when shipping their waste
    offsite for treatment, storage, or disposal.  The rules also require that
    transporters comply with the waste manifest requirements,  and that owners
    and operators of existing facilities that treat, store, or dispose of
    hazardous waste comply with certain administrative and operating
    requirements for interim status, pending issuance of a final hazardous
    waste facility permit.
    
    On the effective date of this first group of regulations (November 19,
    1980), EPA also began the process of authorizing states to implement and
    operate their own hazardous waste management programs in lieu of the
    federal program.  The intent of Congress, and EPA's objective, is to
    encourage and assist states in developing and implementing their own
    hazardous waste programs.
    
    The second group of final regulations contains the technical requirements
    for issuing hazardous waste facility permits.  These requirements set
    specific standards for particular types of facilities to ensure the safe
    treatment, storage, and disposal of hazardous waste by methods that will
    protect human health and the environment.  These standards will allow EPA
    or authorized states to issue final permits to environmentally acceptable
    facilities on a case-by-case basis.  This approach to evaluating facilities
    for permitting purposes takes into consideration both site-specific factors
    and the nature of the waste handled at a particular facility.
    Identification and Listing of Hazardous Waste
    The identification regulation is the cornerstone of the hazardous w.iste
    management program.  It enables generators and handlers of waste to deter-
    mine whether their waste falls within the definition of hazardous waste and
    is thus subject to RCRA's regulatory control.
    Identifying a Hazardous Waste
    
    In analyzing a waste to determine whether it is hazardous, it is important
    to note that RCRA's hazardous waste regulations only apply co hazardous
    s-olid waste.  Solid waste is broadly defined in RCRA to include garbage,
    refuse, sludge, or any other waste material that is not specifically
    excluded.  The term "any other waste material" includes solids, semisolids,
    liquids, and contained gaseous materials from industrial, commercial,
    alining, and other accivities.
    RCRA Compliance/Enforcement            1-52            Guidance Manual 1984
    

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    Chapter One	RCBA Regulatory Eleaents
    
    
    If a solid wasce is involved,  Che generator or handler is provided with Che
    following cvo mechods for decermining whether the vasce is hazardous.
    
    Hazardous Waste Characceriscics.   Hazardous wasce can be idencified on che
    basis of measurable Characceriscics for which standardized tests are
    available.  The idencificacion regulacion provides decailed technical
    specifications for four Characceriscics adopted by EPA (40 C.F.R.  §§261.20
    Chrough 261.24):
    
         •  Ignitability.  Posing a fire hazard during routine management.
    
         •  Corrosivicy.  Having che ability Co corrode scandard containers or
            co dissolve coxic components of ocher wastes.
    
         •  Reaccivicy.  Having Che cendency Co explode under normal managemenc
            condicions, Co react violently when mixed wich water,  or Co
            generate coxic gases.
    
         •  EP Toxiciry.  As determined by a specific extraccton procedure
            (EP), having che presence of cercain coxic materials at levels
            greater than those specified in the regulacion.
    
    Hazardous Wasce Lists.  The idencificacion regulacion conCains liscs of
    solid wasces chac EPA has idencified as hazardous (40 C.F.R. §§261.31,
    261.32, 261.33).  Included in che liscs are wasces chac possess any of che
    four hazardous wasce Characceriscics, wasces from cercain manufacturing
    processes, commercial produces Chac are hazardous wasces if discarded,  and
    wasces meeting che criteria for acute hazardousness or Coxicicy.  A waste
    is acutely hazardous if it has been found co be facal co humans in small
    amounts or has been shown Co be acutely coxic in cercain animal studies.
    
    A waste is considered coxic if it contains one or more of che constituents
    chac have been found Co have coxic effects on humans or ocher life forms,
    unless EPA determines that che wasce may not cause or potentially cause a
    subscancial hazard Co human health or che environment.
    Exempting or Delisting a Wasce
    
    Ic is possible for generacors of hazardous wasce co obcain an exemption
    from regulacion even when their wasces are lisced in the regulacion.
    Generacors must show chac wasce from cheir parcicular facilicy is
    fundamentally differenc from che wasce Listed in the regulation.   The
    deliscing procedure involves demonstrating, or referencing tesc data that
    demonstrate, Chac Che specific wasce does not meet the criteria chat caused
    Che Agency to lisc ic.  This provision reflects recognition that individual
    wasce streams vary, depending upon raw materials, industrial processes, and
    other factors.
    Small Quantities of Hazardous Waste
    
    In general, facilities producing or'accumulating less than a total of 1,000
    kilograms (2,200 pounds) per month of an identified hazardous waste are
    RCRA Compliance/Enforcement            1-53            Guidance Manual 1984
    

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                                                                            ncs
    considered Co be small-quancicy ^sneracors and are conditionally exempted
    from Che regulatory syscem.  EPA has, however, specified Chat certain
    acucely hazardous wastes generated or scored in amounts greater Chan 1
    kilogram (for commercial produces) and 100 kilograms (for residue or
    contaminated soil, water, or other debris) per month are subject to full
    regulation, even when produced by small-quantity generators.
                •
    The quantity determination does not include hazardous vasce that is used,
    reused, recycled, or reclaimed.
    
    To qualify for an exemption from regulation, small-quantity generators must
    dispose of their hazardous waste in EPA- or state-approved hazardous waste
    management facilities (or in facilities approved by a state to manage
    municipal or industrial solid waste), or must send their waste co *
    recycling facility, and must comply with testing and storage requirements.
    
    
    Hazardous Waste Excluded From the System
    
    Generally, the following wastes are not subject to RCRA hazardous waste
    controls (but may be controlled under other laws):
    
         •  Domestic sewage;
    
         •  Industrial wastewater discharges regulated under the Clean Water
            Act;
    
         •  Nuclear waste regulated under the Atomic Energy Act;
    
         •  Irrigation return flows;
    
         •  Household waste;
    
         •  Mining extraction, beneficiation, and processing waste;
    
         •  Coal combustion waste (fly ash, bottom ash, slag, and flue gas
            emission control waste); "
    
         •  Oil, gas, and geothermal drilling muds and brines;
    
         •  Soil fertilizers that come from growing and harvesting agricultural
            crops and raising animals (including animal manures);
    
         •  Cement kiln dust; and
    
         •  Some reused, recycled, or reclaimed waste.
    Scandards for Generators of Hazardous Waste
    The standards for generators of hazardous wasce (40 C.F.R.  Part 262)
    require generators to do the following:
    RCRA Compliance/Enforcement            1-54            Guidance Manual 1984
    

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    Chapter One	RC2A Regulatory Elements
    
    
         •  Determine whether their waste is hazardous by consulting the list
            of hazardous wastes contained in the regulation.  If the waste is
            not listed, the generator must determine whether the waste
            possesses any one of four characteristics specified in the
            regulation (e.g., ignitability, corrosivity, reactivity, or EP
            toxicity).  In addition, the generator may declare the waste to be
            hazardous based upon knowledge of the materials or processes used
            in producing the waste;
    
         •  Obtain an EPA identification number;
    
         •  Obtain a T/S/D facility permit if waste is accumulated on the
            generator's property for more than 90 days;
    
         •  Use appropriate containers and label them properly for shipment;
    
         •  Prepare a manifest for tracking the waste; and
    
         •  Ensure, through the manifest system, that the waste arrives at the
            designated facility.
    
    
    Notification and EPA Identification System
    
    Generators of hazardous waste are required by RCRA to notify EPA of their
    activities; and following notification, the generator receives an EPA
    identification number.
    
    
    Waste Leaving the Generator's Property
    
    For hazardous waste leaving the site of generation,  the generator must:
    
         •  Use only transporters with EPA identification numbers;
    
         •  Prepare a manifest for all regulated hazardous waste sent to
            offsite treatment, storage, or disposal facilities;
    
         •  Keep records of these shipments; and
    
         •  Report any shipment that does not reach the designated facility.
    
    The Manifest*  A generator of hazardous waste is responsible for preparing
    a manifest for tracking hazardous waste from the time of generation until
    disposal.  The manifest contains:
    
         •  Name, address,  and telephone number of the generator;
    
         •  Names of all transporters;
    
         •  Name and address of an acceptable hazardous waste facility
            designated to receive the waste (i.e., a facility under interim
    RCRA Compliance/Enforcement            1-55            Guidance Manual 1984
    

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                                                       R.GLA Regulatory Elements
            scacus or having a facility peraic).   However,  an alcernace
            facility may be designated if an emergency prevents use of the
            first facility;
    
         •  EPA identification numbers of all who handle the waste;
                *
         •  U.S. Department of Transportation proper shipping description of
            the waste;
    
         •  Quantity of waste and type and number of containers;  and
    
         •  The generator's signature certifying  that the waste has been
            properly labeled, marked, and packaged according to DOT and EPA
            regulations.
    
    The generator signs the certification on the  manifest,  including one copy
    of the manifest for each person handling the  waste.   The transpocter then
    signs and dates the manifest and returns one  copy to the generator, who
    retains it until a copy is received from the  designated facility following
    delivery of the waste by the transporter.  A  generator  must keep a copy of
    the manifest for at least three years.
    
    
    Hazardous Waste Accumulating on the Generator's Property
    
    Generators who accumulate hazardous waste on  their property for more than
    90 days are considered to be storing waste and must comply with the interim
    status standards applicable to T/S/D facilities;  these  generators are also
    subject to the permit requirements.
    Exemption for Small-Quantity Generators
    
    In order for generators to qualify for the small-quantity generator
    exclusion, they must determine:
    
         •  Whether they generate a  total of less than 1,000 kilograms (2,200
            pounds) of hazardous waste in any one calendar month;  or
    
         •  Whether the waste is beneficially used or reused, or legitimately
            recycled or reclaimed.
    
    It is important to note that acutely hazardous waste [listed in 40 C.F.R.
    §261.33(e)] in excess of 1 kilogram per month is fully regulated even when
    it is produced by a small-quantity generator.
    
    Generators of hazardous waste vho qualify for the small-quantity exemption
    may either treat or dispose of the waste -it an onsite facility or ensure
    that it is delivered to an offsite facility.   Both the onsite  and offsice
    facilities oust be:
    
         •  Permitted to manage hazardous waste by EPA or by a state with a
            hazardous waste management program that is authorized  by EPA:
    RCRA Compliance/Enforcement            1-56            Guidance Manual 1984
    

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    Chapter One      	RCRA Regulatory Elements
    
    
         •  In lateria status under the federal hazardous waste program;
    
         •  Permitted, licensed, or registered by a state to manage municipal
            or industrial solid waste; or
    
         •  A facility Chat uses, reuses, recycles, or reclaims the waste.
    
    Although the standards for generators who are in the system are in one part
    of Che regulations (40 C.F.R. Part 262), the qualifying factors for the
    small-quantity generator exclusion are in another (40 C.F.R.  §261.5—the
    regulation Chat Identifies hazardous waste).
    Standards for Transporters of Hazardous Waste
    The hazardous waste management system regulates approximately 14,000
    transporters of hazardous waste.  Regulations applicable Co such
    transporters were developed jointly by EPA and DOT.   EPA's regulation
    incorporates, by reference, pertinent parts of DOT's rules on labeling,
    marking, packaging, placarding, and reporting hazardous waste discharges
    (40 C.F.R. Part 263).  DOT, in turn, amended its regulations on the
    transportation of hazardous materials to include EPA's manifest
    requirements (49 C.F.R. Parts 171 through 177).
    EPA Notification and Identification System
    
    Transporters of hazardous waste must notify EPA of their activities so that
    an EPA identification number can be assigned.   Without this EPA
    identification number, generators of hazardous waste are prohibited from
    using the transporter's services.
    Operation of the Manifest System
    
    The generator initiates the manifest by filling in the data concerning the
    waste and indicating the name and address of the hazardous waste facility
    that is to receive it.  After signing the certification,  the generator
    gives the appropriate number of copies of the manifest to the transporter.
    The transporter Chen signs and dates the manifest and returns one copy to
    the generator, who retains it until a copy is received from the designated
    facility following delivery of the waste.
    
    The transporter must ensure that the manifest accompanies the shipment at
    all times and that it is delivered to the designated hazardous waste
    facility.  An agent for the facility signs and dates each copy and retains
    one.  One copy is given to the transporter, who must retain it for three
    years.
    RCRA Compliance/Enforcement            1-57            Guidance Manual 1984
    

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    Chapter One     	     .	      RCEA Regulatory Elements
    If more Chan one transporter is involved, the initial transporter oust
    obtain the subsequent transporter's dated signature on the manifest.   The
    remaining -copies accompany the waste until it reaches the designated
    facility.
    Rail Shipment and Bulk Shipment by Water
    
    For shipments within the United States solely by rail or water (bulk
    shipment), the manifest need not accompany the waste.  In these instances,
    the generator must forward three copies of the manifest to the designated
    facility, and the rail or water transporter must carry with the shipment a
    shipping paper that contains all the information required on the manifest
    except the EPA identification numbers, generator certification, and
    signatures.
    
    The initial rail or water transporter signs the manifest (or shipping
    paper) acknowledging receipt of the waste (signatures of intermediate rail
    or water transporters are not required).  The final rail or water trans-
    porter obtains the signature of the agent for the designated facility on
    either the shipping paper or the manifest acknowledging delivery of the
    waste.
    
    If the shipment is not solely by rail, the initial rail transporter signs
    and dates the manifest and returns a copy to the previous nonrail
    transporter and forwards at least three copies to the next nonrail
    transporter, the designated facility, or the last rail transporter.
    
    If the shipment is not solely by water, the manifest must accompany the
    waste, and signatures of all transporters are required.
    Hazardous Waste Discharge
    
    A discharge is defined as the accidental or intentional spilling,  leaking,.
    pumping, emptying, or dumping of hazardous waste onto or into the  land or
    water.
    
    If a discharge occurs during transportation, the transporter is required to
    take immediate action to protect human health and the environment.
    Transporters are also responsible for cleaning up any discharge of
    hazardous waste that occurs during transportation or for taking other
    action that nay be required or approved by federal,  state,  or local
    officials so that the discharge no longer presents a hazard to human health
    or the environment.  When a government official on die .scene determines
    that immediate removal of the waste is necessary, that official may
    authorize removal by a transporter who does not have an EPA identification
    number or a manifest.
    
    Under certain conditions, DOT requires that the transporter telephone the
    National Response Center to report a discharge.  A written report  on all
    discharges must, however, be submitted to DOT, and DOT will forward a copy
    of the written report to EPA.
    RCRA Compliance/Enforcementl-TSGuidance Manual 1984
    

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    Chapter One	RCBA Regulatory Eleaents
    If a person should become a hazardous waste transporter as a result of a
    spill and the identification number and manifest waiver provision do not
    apply, the transporter aust telephone the appropriate Regional Office to
    obtain a provisional identification number before transporting the waste
    away from the site.
    Storage Requirements
    
    A transporter may delay shipments of hazardous waste at one site for up to
    10 days without complying with all of the regulations for treatment,
    storage, and disposal facilities and without having a RCRA permit.   These
    shipments must be accompanied by a manifest and must remain in containers
    that meet DOT requirements for packaging.  The generator must be notified
    of complete transit within 35 days.
                                                                    *
    Should transit of the waste be delayed for more than 10 days, the trans-
    porter must have interia status or a RCRA permit for the site.
    Hazardous waste Management Facility Standards
    EPA's records indicate that there are about 5,400 hazardous waste T/S/0
    facilities.  Owners and operators of these facilities must comply with
    administrative and operating standards specified in the regulation (40
    C.F.R. Parts 264 and 265).  These standards .serve a threefold purpose:
    
         •  To establish proper treatment, storage, and disposal practices that
            will protect human health and the environment;
    
         •  To provide states with minimum standards for their hazardous waste
            programs; and
    
         •  To provide the technical basis for EPA-issued facility permits in
            states that fall to seek or do not qualify for author L/.at ion of
            their program.
    Interim Status Standards and General (Permitting) Standards
    
    Hazardous waste facilities are covered by two types of standards:
    
         •  Interim Status Standards (40 C.F.R.  Part 265), which must  be
            complied with by all facilities in interim status;  and
    
         •  General (permitting) Standards (40 C.F.R. Part 264), which are the
            basis for the issuance of permits over time to both existing
            (interim status) and new facilities.
    
    Interim status givas hazardous waste facilities temporary authority to
    continue operations, as long as they comply with the requirements  specified
    RCRA Compliance/Enforcement            1-^9            Guidance Manual 1984
    

    -------
    Chapter One	 RCRA Regulatory Eleaents
    
    
    la Che Incerim Status Standards.  Facilicies may not operate without
    incerim status or a final RCRA permit.
    
    EPA has promulgated the General (permitting) Standards for hazardous waste
    facilities in^cwo stages.  The first set of regulations, most of which were
    issued on May" 19, 1980, includes largely administrative and general
    requirements.  Many of these requirements are also part of the Interim
    Status Standards, and facilities in interim status must comply with the
    requirements pending final administrative action on formal penult
    applications.  The technical operation, design, and construction standards
    necessary to issue final permits to new or existing facilities were issued
    in a second set of regulations.
    
    Major areas covered by the Interim Status Standards and the General
    (Permitting) Standards are:
    
         •  Waste analyses to identify the hazardous waste and the appropriate
            method for handling the waste;
    
         •  Security precautions to prevent unauthorized entry;
    
         •  Inspections of the facility to identify or prevent environmental or
            human health hazards;
    
         •  Plans to deal with emergency situations;
    
         •  Personnel training for regular duties and emergency situations;
    
         •  Special precautions to prevent accidents resulting from mishandling
            of ignitable, reactive, or incompatible waste;
    
         •  Restrictions on locating facilities near faults or flood plains;
    
         •  Preparedness and prevention mechanisms to minimize the possibility
            of fires, explosions, or unplanned releases of hazardous waste;
    
         •  Recordkeeping and reporting requirements;
    
         •  Groundwater protection requirements;
    
         •  Closure and post-closure requirements;
    
         •  Financial requirements; and
    
         •  Provisions that apply to specific types of facilities.
    Hazardous Waste Management Facility Permits
    Owners and operators of T/S/D facilities are required to obtain permits for
    their hazardous waste operations (unless the operation is exempt) either
    RCRA Compliance/Enforcement            1-60            Guidance Manual 1984
    

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    Chapter One	RCRA Regulatory Elements
    from EPA or from a state that has received EPA approval Co operate its own
    hazardous waste permit program.  Information that is required on the
    application for a permit is set forth in 40 C.F.R. Part 270.  The general
    and technical-standards for facilities form the basis upon which permits
    are issued (40 C.F.R. Part 264).
    Permits by Rule
    
    Certain facilities are treated as though they have a RCRA permit for their
    hazardous waste operations.  These include barges or vessels that dispose
    of hazardous waste in the ocean, underground injection wells that manage
    hazardous waste, and publicly owned treatment works.  To be eligible for a
    permit by rule, certain conditions (such as compliance with the manifest
    system and recordkeeping requirements) that are specified in the
    regulations must be met.  Upon meeting these conditions, the facility will
    be considered to have a RCRA permit.  If, for example, an owner or operator
    of an ocean disposal vessel has a permit under the Marine Protection,
    Research, and Sanctuaries Act and complies with the appropriate conditions
    under RCRA, he or she will be considered to have a RCRA permit.
    
    
    Interim Status and Final Permits
    
    When Congress enacted RCRA, it recognized that all hazardous waste facili-
    ties could not be permitted simultaneously.  Consequently, the Act provides
    that any facility that applies for a permit may continue to operate under
    interim status while administrative action is being taken on the final
    permit.
    Applying for a Permit
    
    Owners and operators of hazardous waste facilities apply for their permit
    in two parts:
    
         •  Part A, which provides EPA data such as design capacities, types
            and quantities of hazardous waste handled, and proximity to drink-
            ing water wells; and
    
         •  Part B, which includes more detailed technical information.
    
    The purpose of Part A is to qualify facilities to continue operations under
    interim status, while at the same time provide EPA with information that
    would be useful in the final stage of the permitting process (submission of
    Part B).
    
    Certain facilities that handle hazardous waste are not required to obtain a
    RCRA permit because they are explicitly excluded from the system.   Among
    these are generators that accumulate hazardous waste onsite for less than
    RCRA Compliance/Enforcement            1-61            Guidance Manual 1984
    

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         or reused or legitimately  recycled  or  reclaimed  (a  perait  is  required
    for storage of hazardous waste  at  these  facilities),  and totally enclosed
    treatment facilities.*
    
    To qualify for interim status,  facilities must  have been in existence  on
    November' 19, 1980, have notified EPA of  their activities,  and have submit-
    ted Part A of the permit application to  EPA by  November  19, 1980.   Facility
    owners and operators who have taken these actions  may operate as long  as
    they continue to meet the  requirements for  interim status,  or until final
    administrative disposition of the  permit application.
    
    However, existing facilities (those in interim  status) need not  submit Part
    B until it is requested by EPA.  The information submitted  in Part B is
    Intended to demonstrate compliance with  the general facility standards (40
    C.F.&. Part 264).  It should be noted that  not  all states will employ  the
    two-part permitting approach of the federal system.   State  agencies operat-
    ing approved hazardous waste perait programs will  require  their  own type of
    permit applications.  EPA will  request Part B applications  when  it is  ready
    to process them.
    
    In states where EPA Is operating the RCRA hazardous waste  permit program,
    the EPA Regional Administrator  reviews an application for  completeness.  If
    the Regional Administrator decides to issue a permit,  a  draft permit is
    prepared.  It is subject to public notice,  public  comment,  and  (when war-
    ranted) public hearings.  After the comment period, EPA  issues a final
    decision on the permit, along with a response to all  significant comments.
    This response to comments, plus any additional  supporting  material, becomes
    part of the administrative record  for the final permit-decision.   Appeals
    to the final decision of the Regional Administrator may  be  made  within 30
    days.
    
    In the event of an immediate hazard to human health or the  environment, the
    permit regulation provides- for  the issuance of  an  emergency permit. Tem-
    porary authorization may be issued for not  more than  90  days, and  the  pub-
    lic must be notified of the emergency authorization.
    State Hazardous Waste Programs
    
    
    Believing that hazardous waste could be controlled best at  the state  level,
    Congress (through RCRA) provided the mechanism for states to obtain
    approval from EPA to administer and enforce their state hazardous waste
       As defined in the regulations, a "totally enclosed treatment  facility"
       is a "facility for the treatment of hazardous waste which  is  directly
       connected to an industrial production process and which is constructed
       and operated in a manner which prevents  the  release of hazardous waste
       or any constituent thereof into the environment."
    RCRA Compliance/Enforcement             1-62            Guidance Manual  1984
    

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     —>...w.  w-s.                 	 RCBA Regulatory Rleaeota
    
    
    management program-  These  state  programs  are  to  be operated in lieu of the
    federal  program; however, EPA  must  administer  the  federal  program in those
    states  that have not been granted such  authority.
    
    
    Interim  Authorization
    
    RCRA provides for  two  types of  state  authorization—interim and final.
    Interim  authorization  is granted  to a state  once  it demonstrates that its
    program  is "substantially equivalent" to the federal program.   Interim
    authorization may  occur in  two  phases.
    
    Phase I  allows states  to administer the portion of the  program  that deals
    with identification and listing of  hazardous waste.   It  establishes regula-
    tory standards for generators  and transporters and also  establishes prelim-
    inary (i.e., interim status) standards for hazardous  waste  treatment,
    storage, and disposal  facilities.
    
    Phase II allows the state to administer the  permit program.   RCRA sees  an
    additional requirement for  Phase  II (and final) authorization,  however,  by
    mandating compliance with certain public participation  procedures
    established in Section 7004(b)(2).
                                                                               t
    Phase II is further subdivided  into three components  that  cover the varioiM
    aspects of hazardous waste  management:
                                                                               •
    
         •  Component  A — Storage  and  treatment facilities;
    
         •  Component  B — Incinerators;  and
    
         *  Component  C — Disposal facilities.
    
    A state  may receive Phase II interim  authorization for one  component, for
    any combination of components,  or for all components  at  once.   A state  may
    also elect to skip any or all of  Phase II and go directly  to final
    authorization.
    
    Interim  authorization  expires on  January 26, 1985  (unless  Congress extends
    the date).  Those  states that are granted Interim  authorization but fall to
    achieve  final authorization prior to  January 26, 1985, will  have  their
    programs reverted  to EPA for administration  and enforcement  under the
    federal  program.
    
    
    Final Authorization
    
    Prior to obtaining final authorization, a state must  meet  the more
    difficult statutory test of demonstrating that its  program  is fully
    "equivalent to and consistent with  the federal program"  and  that  its
    program provides for "adequate enforcement." To be  "consistent with  the
    federal program,"  among other requirements,  a state's provisions  must not
    impede free interstate movement of  hazardous waste.   Although a state's
    standards may be more  stringent than  those of the  federal  program,  states
    RCRA Compllance/Eaforceoent             1-63            Guidance Manual  1984
    

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                                                       RCBA Regulatory Eleaents
    are prohibited from enacting less stringent standards.*  States must also
    comply with certain public participation procedures established in Section
    7004(b)(2) of RCRA.
    
    EPA has translated the statutory tests for authorization iiM regulations
    (40 C.F.R. Pmrt 271) that specify the minimum requirements for state
    authorization in greater detail.  [Requirements for state compliance and
    enforcement authorities for final authorization may be found at 40 C.F.R.
    §§271.15 and 271.16 and requirements for interim authorization may be found
    at 40 C.F.R. §§271.128(f) and 271.128(g).J
    
    The major features of interim and final authorization are provided in Table
    1-1, which illustrates the differences between interim and final
    authorization.
    
    A state need not have had interim authorization to be eligible for final
    authorization.  States may apply for final authorization at any time, and
    final authorization is permanent, unless withdrawn by EPA for cause.
    Exhibits 1-1 through 1-3 list the currently (July 1984) authorized states.
    Because this list is subject to change, an updated list can be obtained
    from the State Programs Branch, Office of Solid Waste.
    Revisions
    
    Revisions to the state program must be implemented as the federal program
    is upgraded or expanded so that the state program continues to meet the
    requirements of final authorization.  In addition, EPA must approve revi-
    sions that are made at the state's own initiative chat may affect the
    state's ability to continue to meet final authorization requirements.  (See
    40 C.F.R. §271.21.)
    Withdrawal and Transfer
    
    Withdrawal of authorization and voluntary transfer of the program can also
    occur.  Criteria and procedures for withdrawal and procedures for transfer
    of program responsibility are specified in the regulations.   (See 40
    C.F.R. §§271.22 and 271.23.)
       It is important to note that some state programs may be broader in scope
       than the federal program.  However, the elements of the state program
       that go beyond the scope of t'i« federal program are neither authorized
       nor enforced by EPA.  The distinction between state program provisions
       that are "broader in scope" versus "more stringent" is an important
       one.  EPA enforcement personnel, therefore,  are strongly advised to
       refer to Program Implementation Guidance memoranda #82-1, 182-3, #82-4,
       and #84-1.  (Also note that the pending RCRA reauthorization may provide
       for direct EPA enforcement of certain federal requirement* la authorized
       states.)
    RCRA Compliance/Enforcement1-64Guidance Manual 1984
    

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                                   Table 1-1
    
                Major Features of Interim and Final Authorization
           Interim Authorization
             Final Authorization
    STATUTORY TESTS:
             i
    
      Substantial equivalence—RCRA
        §3006(c)
      Public participation in
        permit ting—RCRA S7004(b)(2)
    STATE PROGRAM REQUIREMENTS:
    (40 C.F.R. Part 271, Subpart B)
    
    Control a universe of hazardous
    waste that is nearly identical to
    EPA's (Part 261) (i.e.. control all
    waste being generated in the state
    by the time of authorization)
    
    Require all generators and trans-
    porters that exist at the time of
    authorization to comply with state
    standards that are substantially
    equivalent to EPA's (Parts 262 and
    263)
    
    Use a manifest system that ensures
    wastes are sent to and received by
    authorized facilities (manifest
    tracking procedures are specified
    in detail)
    
    For Phase I, by the date of confer*
    ral of authorization, require all
    facilities that exist at the time
    of authorization that would be eli-
    gible for federal interim status to
    comply with state standards that
    are substantially equivalent to
    EPA's interim status regulations
    (Part 265)
    STATUTORY TESTS:
    
      Fully equivalent—RCRA §3006(b)
      Consistent—RCRA §3006(b)
      Adequate enforcement—RCRA
        53006(b)
      No less stringent—RCRA §3009
      May be more stringent—RCRA §3009
      Public participation in
        permitting—RCRA §7004(b)(2)
    STATE PROGRAM REQUIREMENTS:
    (40 C.F.R. Part 271, Subpart A)
    
    Control all wastes EPA would—
    regardless of whether they are actu-
    ally generated in the state at the
    time of conferral of final author-
    ization—via state characteristics
    and lists that are fully equivalent
    to, no less stringent than, and con-
    sistent with EPA's (Part 261)
    
    Require all generators and trans-
    porters to comply with state stan-
    dards that are fully equivalent to,
    no less stringent than, and consis-
    tent with EPA's, including manifest
    system/manifest tracking procedures
    (Parts 262 and 263)
    
    As of the date of conferral of final
    authorization, require all facili-
    ties that would be eligible for
    federal interim status to comply
    with state standards that are fully
    equivalent to, etc., EPA's interiia
    status regulations (Part 265)
    RCRA Conpliance/Enforceoent
    1-65
    Guidance Manual 1984
    

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                                     Table  1-1
                                     (continued)
           Interim Authorization
             Final Authorization
    For Phase II, require all
    facilities  that exist at the  time
    of authorization and all new
    facilities  to comply vith state
    standards that are substantially
    equivalent  co EPA's permitting
    standards (Part 264)
    
    Contain substantially equivalent
    permitting  procedures and
    demonstrate full compliance vith
    public participation procedures of
    RCRA §7004(b)(2)
    Require all facilities that vould be
    eligible for federal interim status
    and all new facilities to comply
    vith state standards that are fully
    equivalent to, etc., EPA's
    permitting standards (Part 264)
    
    Contain fully equivalent permitting
    procedures and demonstrate full
    compliance vith public participation
    procedures of RCRA §7004(b)(2)
    RCRA Compliance/Enforcement
    1-66
    Guidance Manual 1984
    

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    Chapter One	RC8A Regulatory Eleaents
    State/EPA- Cooperative Arrangements and Cooperative Agreements	
    
                 *
    Under RCRA Section 3011, EPA is authorized to make "grants" to states for
    the purposes of assisting them in developing and implementing authorized
    state hazardous waste programs.  However, the RCRA "grant" is actually a
    Cooperative Agreement (as prescribed under the Federal Grant Agreement Act
    of 1977).
    
    Cooperative Agreements are the annually negotiated funding mechanisms for
    state hazardous waste program support grants.
    
    Cooperative Arrangements are the arrangements made between EPA and states
    in which the states:
    
         •  Demonstrate their Intent to receive authorization;
    
         •  Agree Co perform tasks to implement the required federal program in
            that state; and
    
         •  Are funded by EPA to perform those tasks and to pursue those
            activities necessary to achieve authorization.
    
    The arrangement also stipulates that EPA can indicate the tasks it will
    perform to Implement the federal program in the state.and to assist the
    state in the performance of its tasks.
    
    The Cooperative Arrangement consists of four elements:
    
         •  A Cooperative Agreement;
    
         •  A Memorandum of Understanding outlining each party's
            responsibilities;
    
         •  A Development Plan describing the steps the state will take to
            complete its authorization application and qualify for authoriza-
            tion; and
    
         •  A Certification of Authority that the state has the requisite legal
            authority to carry out its tasks.
    
    It is important to note that EPA retains the basic legal responsibility for
    administering the federal program; however, the state may be carrying out
    certain inspection, enforcement, and compliance monitoring tasks for EPA
    under the Cooperative Arrangement.  Also, it is important to note that
    State employees may enter and inspect hazardous waste handlers'  premises
    either using their own independent authority or the authority of RCRA
    Section 3007(a) as duly designated representatives of EPA.
    
    Copies of EPA guidance and related materials concerning Cooperative
    Arrangements may be obtained from the State Programs Branch, Office of
    Solid Waste.
    RCEA Compliance/Enforcement            1-67            Guidance Manual 1984
    

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    Chapter  One
                                                                  Exhibit 1-1
                   States Granted  Interim Authorization for Phase  I
                                  (As of July 11, 1984)
                 State
    
                 Arkansas—
                 Utah	—
                 North Dakota———
                 North Carolina-	
                 Louisiana————
                 Te xa s .-————
     1.
     2.
     3,
     4.
     5.
     6.
     7. •Mississippi——
     8.  Oklahoma—-——
     9.  Ve raon t———
    10.  I owa———
    11.  Georgia————
    12.  Alabama———
    13. •Delaware———
    14.  Massachusetts——
    15.  South Carolina——
          Datt Authorized
    
    —19 November 1980—
       — 12  December 1980—-
      FR Papa Number
    
        —76144(Nov.  18)
          •81757
            16.  •Montana———
            17.
            18.
            19.
            20.
            21.
            22.
            23.
            24.
            25.
            26.
            27.
            28.
            29.
            30.
            31.
            32.
            33.
            34.
            35.
            36.
            37.
            38.
            39.
            40.
            41.
            42.
            43.
            44.
            45.
         Kentucky———
         Pennsylvania——
         Rhode Island—	
         California———-
         Maryland——
         Oregon—-
         Tennessee————•
         Kansas————
         New Hampshire——
         Virginia	
         Wisconsin——
         Connecticut——
         Neb r as ka———
         Illinois———
        •12  December 1980(Partial>—81758
        •18  December 1980————— 83229
        •19  December 1980——	83498
        •24  December 1980	85016
        —7  January 1981————1727
        •14  January 1981————	3207
        •15  January 1981——	3517
        •30  January 1981—————9948
        —3  February 1981———10487
        •25  February 1981——14008
        •25  Feoruary 1981————14009
        •25  February 1981———14010
         25  February 1981—	14012
         26  February 1981(Partial)	14123
         17  February 1982—	6831
         18  March  1981—————	-17194
         -1  April  1981——	—— -19819
         26  May  1981—	28161
         29  May  1981——	28850
         -4  June 1981—	29938
          8  July 1981	35259
        •1«  July  1981—
        •16  July  1981	
        -21  September  1981 —
        — 3  November 1981 —
        — 3  November 1981—
        •IS  January 1982—
        •21  April  1982—
      	36844
    	.—36846
    .....—46576
    	54544
        	54545
          --2314
         — 17055
         Florida———
         Arizona-
         Indiana——
         Puerto Rico-
         New Jersey-
         Guam———
         Oh i c————«
         Nevada———
         Hash i ng ton-———
         New Mexico———
         Missouri———
         District  of  Columbia-
         New yerk————
         west Virginia—
        •14 May  1982	20773
        •17 May  1982	—21043
         19 May  1982—	19698(May  7)
        •18 August  1982	35967
        •18 August  1982—	—	35970
        •14 October 1982	45880
         •2 February  1983	4661
        •16 May  1983	— •-	—2195-3
        •15 July 1983	32345
        •19 July 1983—	32778
        —2 August  1983	34954
        •30 September 1983———44783
        —8 November  1983	—	51298
        •22 November  1983————52720
        • 27 December  1983	56952
        -28 March 1984	11836
               • States  with Final Authorization
    RCEA Compliance/Enforcement
                                       1-68
                                 Guidance  Manual  1984
    

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    Chapter  One
                                                              Exhibit 1-2
                   Stitts Granted  Interia Authorization for Phase II
                                 (As  of July  11,  1984)
               State  (Component)
                          Date Authorized
                            FR Pace Number
           1.
    
           2.
    
           3.
    
           4.
    
           5.
    
           6.
    
           7.
    
           8.
           9.
    
          10.
          11.
          12.
          13.
          14.
          IS.
          16.
          17.
    
          18.
    
          19.
    
          20.
          21.
          22.
          23.
          24.
          (A * B)— — •
          (C)— —
    North Carolina (A i B)
    Arkansas
    Georgia (A t B>-
    
    Mississippi (A 4 B)
                (C)
    South Carolina (A 4 B) —
                   (O —
    Oklahoma (A t B)——
             (O-
    California (A) —
    Kentucky (A 4 B) —
    
    New Hampshire (A 4
    Connecticut (A, B 4 O-
    Nevada (A 4 B)-	
    Washington (A 4 B) —
    Virginia (A 4 B) —
    Maine (A, B & O —
    New Mexico (A i B)—
    District of Columbia
     
    -------
                          States Granted Final Authorization
                                (As  of July 11,  1984)
                Stat*                Dat« Authorial         fit  Paq« Numo«r
    
    
            1.  D«lawar»——	22 Jun« 1984-	—•	—23837(Junt 8)
            2.  Mississippi	—27 J«n« 1984	-24377(Jun« 13)
            3.  Montana——-	25 July 1984—	28245(July 11)
    BCRA Compliance/Enforcement             1-70            Guidance Manual 1984
    

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    Chapter Two
    General Operating  Procedures
    Chapter Contents	       	     Page
    Primary Office Responsibilities                             2-1
    Concurrence Procedures                                    2-4
    State and Federal Interagency Cooperation                      2-4
    Organizational Charts                                     2-6
    RCRA Compliance/EnforceM>nt          2-i         Guidance Manual 1984
    

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    Chapter Two	                       Concents
    RCRA Compliance/Enforcement             2-ii           Guidance Manual  1984
    

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    Chapter Two
    General Operating  Procedures
    Priaary Office Responsibilities
    The basic framework setting  forth  the responsibilities of each  EPA office
    participating in enforcement  activities was established by the  Administra-
    tor's memorandum of July 6,  1982,  entitled "General Operating Procedures
    for the Civil Enforcement Program" (GOP), and memorandum of October 27,
    1982, entitled "General Operating  Procedures for the Criminal Enforcement
    Program."  (See EPA's  General Enforcement Policy Compendium.)   This chapter
    describes the respective roles and relationships of the various EPA offices
    that are involved with RCRA  administrative/civil enforcement.   For
    procedures relating to criminal enforcement, consult Chapter Nine.
    
    EPA's administrative/civil enforcement program includes both compliance-
    oriented and legal-oriented  activities.  The compliance-oriented activities
    are primarily the responsibility of EPA's program offices, and  the legal-
    oriented activities are principally charged to OECM and the Regional Coun-
    sel's office.  Because many  enforcement activities involve several aspects,
    these activities cannot be defined as strictly "compliance" or  "legal."
    Where both elements are present, the EPA attorney must be especially dili-
    gent in coordinating the legal aspects with Che functions of the other par-
    ticipating offices. The basic relationship between the attorney and the
    program office is that of attorney-client.
    
    The basic administrative/civil enforcement functions are divided among the
    participating offices  as follows:
    
    
    Regional Administrator
    
         Program Office
    
         •  Identifies instances  of noncompliance;
    
         •  Establishes priorities for handling instances of noncompliance;
    
         •  Evaluates the  technical sufficiency of actions designed to remedy
            violations;
    RCRA Compliance/Enforcement             2-1            Guidance  Manual 1984
    

    -------
    Chapter Tvo	General Operating Procedures
    
    
         •  Identifies for formal action those cases that cannot be resolved
            less formally;
    
         •  Provides technical support necessary for developing cases and con-
            ducting litigation;
    
         •  Issues warning letters;
    
         •  Issues routine civil administrative complaints and compliance
            orders;*
    
         •  Evaluates the appropriateness of civil penalties;
    
         •  Negotiates and prepares consent agreements memorializing settle-
            ments beeveen the Agency and respondents prior to the alleged vio-
            lator's filing of an answer or failing to file an answer to an
            administrative complaint;* and
    
         •  Monitors those conditions in consent decrees and orders that
            require further reporting, compliance, etc.
    
         Regional Counsel
    
         •  Acts as attorney for "client" program offices;
    
         •  Assists program office in drafting or reviewing notices of non-
            compliance, administrative orders, or administrative complaints;
    
         •  Ensures consistency of action with OCCM guidance;
    
         •  Attends negotiations whenever outside parties are represented by
            counsel;
    
         •  Serves as lead attorney for the Agency in administrative proceed-
            ings originating in the Region; and
    
         •  Refers requests for equitable relief through the Regional Adminis-
            trator to Headquarters for review and further referral to the
            Department of Justice and the appropriate United States Attorneys
            Office.*
    Headquarters
    
         Office of Waste Programs Enforcement
    
         •  Manages the national program for compliance and enforcement under
            RCRA;
    *  Consultation with other offices is required.
    RCRA Compliance/Eaforcenenc             2-2            Guidance Manual
    

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    Chapter Two                                    General Operating Procedures
    
    
         •  Provides policy direction to the Regions and  the  scaces;
    
         •  Provides cechnlcal support to compliance and  enforcement activi-
            ties ;
    
         •  Identifies, assesses, and recommends action on general and  specific
            RCRA compliance and enforcement issues;
    
         •  Assumes responsibility for direct management  of RCRA enforcement
           • actions that are multi-regional or of national significance;
    
         t  Formulates strategies, and plans and develops program guidance for
            issuance to the Regional Offices and the states;
    
         •  Concurs in settlements of enforcement cases;*
    
         •  Develops accountability measures for the enforcement/compliance
            program; and
    
         •  Works with OECM to prepare joint guidance in  areas where compliance
            and legal issues overlap.
    
         OECM
    
         •  Provides legal advice regarding RCRA enforcement  matters to  the
            Assistant Administrator for Solid Waste and Emergency Response,
            Regional Program Offices, and Regional Counsel Offices;
    
         •  Acts as lead counsel on cases of national significance;
    
         •  Develops enforcement policies and guidances in conjunction with the
            Office of Waste Programs Enforcement;
    
         •  Confers with the Department of Justice on the potential impact of
            enforcement policy on litigation matters;
    
         •  Approves all settlements of enforcement cases;*
    
         •  Evaluates and analyzes strategies and program accomplishments as
            national manager of EPA's enforcement and compliance monitoring
            functions;
    
         •  Reviews all case referral packages, litigation reports, and
            supporting documentation prior to referral by OECM to the
            Department of Justice; and
    
         •  Assists and supports the Regional Counsel lead attorneys and
            Department of Justice attorneys by coordinating legal activity and
            contributing case information to the development  process.  •
    * Consultation with other offices is required.
    RCRA Compliaoce/Enforceaent             2^3Guidance Manual  1984
    

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    Chapter Two	General Operating Procedures
    
    
         Office of General Counsel
    
         •  Provides legal interpretation of applicable statutes and
            regulations to support the RCRA enforcement programs; and
    
         •  Has lead responsibility, in consultation with OECM, for defensive
            litigation arising out of enforcement actions (e.g., federal court
            challenges to EPA's civil penalty proceedings).
    
    
    National Enforcement Investigations Center (NEIC)
    
    NEIC is located in Denver, Colorado, and functions as a national technical
    resource and Investigative unit.  NEIC'a expertise in investigation and
    evidence discovery can assist case development and provide litigation sup-
    port.  The OECM establishes NEIC's priorities and its availability.  Re-
    gional Administrators and the Assistant Administrator for Solid Waste and
    Emergency Response should involve NEIC on a priority basis in cases that
    have precedential implications, national significance, or are
    multi-regional in nature.
    
    
    
    Concurrence Procedures
    
    
    Generally, Headquarters has waived concurrences in routine'administrative
    civil cases.  However, consultation is required in the following instances:
    
      >  •  Cases of first Impression;
    
         •  Cases of unusual national significance; and
    
         •  Civil penalty appeals to the Administrator.
    
    The consultation procedures relating to each of the above actions are dis-
    cussed in the section of the manual pertaining to the individual subject
    matter.
    State and Federal Interagency Cooperation
    RCRA charges EPA with the responsibility of protecting human health and the
    environment by ensuring that hazardous wastes are properly managed.  To
    fulfill this responsibility, EPA seeks cooperation with appropriate state
    and federal agencies.
    RCRA Compliance/Enforcement             2-4            Guidance Manual 1984
    

    -------
     Chaocer Two	General Operating  Procedures
     Scate Cooperation
    
     State Hazardous  Waste  Programs.   Section  3006  of  RCRA  provides  the
     mechanism far states  to  be  approved  by EPA (i.e.,  "authorized")  so  that
     they may administer and  enforce  their  own hazardous waste  management
     programs in lieu of the  federal  program.   See  Chapter  One  for a  description
     of the state authorization  process.
     State Grants  and  Cooperative  Agreements.   Under  Section  3011  of RCRA, EPA
     is  authorized to  make  grants  to  states  for purposes  of assisting  the states
     in  the development  and implementation of  authorized  hazardous waste
     programs.   These  grants are negotiated  annually  and  embodied  in cooperative
     agreements.  Such agreements  may also include  state  planning  for  hazardous
     waste treatment,  storage,  and disposal  facilities, and the development and
     execution  of  programs  to protect health and the  environment from  inactive
     facilities that nay contain hazardous waste.
     Federal Interagency  Cooperation
    
     United  States  Departaent  of  Justice  (DOJ).   EPA's working  relationship with
     the  Departaent of  Justice and  the  United  States Attorney's Office continues
     to be governed by  the  June 1977 Memorandum of  Understanding between  the  DOJ
     and  EPA.   All  criminal cases,  collection  and seizure actions, and warrants
     for  inspections under  RCRA must be filed  by  the DOJ or  the United States
     Attorneys  Office.  EPA Headquarters  and regional components are expected to
     use  their  best efforts to ensure that  a constructive working  relationship
     is maintained  with DOJ and to  provide  assistance to DOJ  in the preparation
     of those actions.  (For the  procedures for referring actions  involving
     criminal cases,  collection,  seizure, or warrants, see the  individual  topics
     in this manual.)
     United  States  Department  of Transportation  (DOT).  The development and
     implementation of  RCRA's  hazardous waste management  rules  (especially those
     applicable  to  transportation) were, and continue to  be, the concern of both
     EPA and  DOT, with  both  agencies working together to  minimize duplication
     and improve  consistency.   For example, to avoid duplicative regulations
    •regarding containers  for  hazardous waste in transit, EPA has adopted, by
     reference,  DOT's container standards.  The  two agencies have also
     cooperated  in  the  enforcement area by establishing a Memorandum of
     Understanding  (MOU).  Signed in 1980, the MOU recognizes the potential for
     overlap  in  jurisdiction and, thus, establishes each  agency's responsibility
     for compliance monitoring and enforcement.   Among other requirements, the
     MOU stipulates that each  agency will work together in coordinating
     enforcement  actions,  investigating reports  of violations,  and providing
     information  on regulations, reports, andd investigations.  This
     coordination continues  on a regular basis at EPA Headquarters and in the
     Regional Offices.
     RCRA Compliance/Enforcement              2-5            Guidance Manual  L98A
    

    -------
          Chapter  Tvo
                                                                                 Organizational  Charts
                           CUM llpX-l
    
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          RCRA  Coapliance/Enforcement
                                                          2-6
     Guidance  Manual  1984
    

    -------
    Chapter Two
                                         Organizational  Charta
                               cmaor i
                        Of Me* of
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                                           oma OP
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    RCKA Compliance/Enforcement
                         2-7
    Guidance Manual  1984
    

    -------
    Chapter Tvo_
                     Organizational Charts
                          oma or
                                 AUUTANT
                                         roi
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                                     Otfle* of
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                                                                    Offlc* of
    RC8A Compliance/Eatorcement
    2-8
    Guidance Manual 1984
    

    -------
      Chapter  Two
                                                           Organisational Charts
                                 or MUD un ue
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    RCSA Coopliance/EnforcemeoC
                                                           Gaidance Manual 1984
    

    -------
    Chaocer  Two
                                                      Organizational  Charts
                                                   UCIM I
                                                                                           RRPORTS  TO
                                                                                      HQ OPTICE OF LEGAL AND
                                                                                       EKTMCCWNT COUNSEL
                                                                                               A
                                             REGIONAL ADMINISTRATOR
                                                    DEPUTY
                                             IECIOMAL ADMINISTRATOR
                          OPTICS Of
                       INTUCOVUXKENTAL
                           LLAISON
                                                (•drliory to)
           ADMINISTRATIVE
          SERVICES OCVISION
    AU NANACTMEXT
       DIVISION
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                           DIVISION
                                                                          otw.rro*
      ENVHtONHKHTAL
    SEIVICES DIVISION
             EZO omcw
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             PUNNING AND
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               IRANTX
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                                                                              or
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                           FACILITIES
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                                                                      HATER SUPPLT
                                                                      HATER O.UALITT
    RCBA Compliance/Enforcement
                                 2-10
                                      Guidance Manual  1984
    

    -------
     Chapter Two
                                                Organizational  Charts
                                                             ucioa ii
                                                                                                           IEWRTS TO
                                                                                                        omcr or UCAL AMO
                                                                                                                   counci.
                                                       REGIONAL ADMINISTRATOR
                                                         OtPVTT UCIONAL
                                                          AJMINISTltATOI
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                           rot roitcr AID
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            EEO OFFICE*
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    PVJUmiNC t EVAUATIOM
           IKAMO4
                     AIR AMD WASTS
                      iuNACtMZ
    -------
     Chaocer  Tvo
                                                                                 Organizational  Charts
                                                   UCtOB (II
                       ASSISTANT REGIONAL
                         ADMINISTRATOR
                         rot POLICY AND
                           NAJUCBONT
                                              REGIONAL ADMINISTRATOR
                                                     OEPVTT
                                              REGIONAL ADMINISTRATOR
                            no omen
                            NANAC0CNT
                          ABHINISTIATTON
                              IRANCH
                           COMPTROLLER
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                                  IIANCH
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                             COMPIIANCS
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                                                                                                 TO
                                                                                    HO OFFICE Of LEGAL  AND
                                                                                     ENFORCEMENT COUNSEL
                                                                                              A
                               OFFICE OF
                           CONCXESSIONAL AND
                           INTERCOVCRNMIKTAL
                                LIAISON
                                                                           omct OF
                                                                         PUILIC AFFAIRS
    HATC1 PMCRAM
      DtTISION
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                                                    PA/W»
                                                    MANCH
                                                 WATER SUPPLT
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                                                    UAAC3
      ENVIRONMENTAL
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                                                                   DEPUTY DIRECTOR
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     4   ENVIRONMENTAL
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                         CEKDUL REGIONAL
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                                                                    MONITORING IRANCH
                                                                      WATER QUALITY
                                                                     MONITORING STAFF
    RCRA Compliance/Enforcement
              "2=12
                   Guidance  Manual  198?
    

    -------
    Chapter  Two
                                    Organizational Charts
                                                UCIOI IT
                                                                                REPORTS TO
                                                                           HO orricE or LEGAL AND
                                                                            ENFORCEMENT COUNSEL
                                                                                     A
                                            REGIONAL ADMINISTRATOR
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                                            REClONAt ADMINISTRATOR
    
    ASSISTANT RECIONAL
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    R.CRA Coapliance/Enrorceaeat
                2-13
                Guidance Manual 1984
    

    -------
    Chapter  Tvo
    Organizational  Charts
                                            tictoN »
                                                                         REPORTS TO
                                                                    HQ OFFICE OF LEGAL AND
                                                                     ENrORCEKEIfT COUNSEL
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    D
    
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    OCPVTT DIRECTOR
    
    RCRA Compliance/Enforcement
     Coidance Manual 1984
    

    -------
    Chanter Tvo
                                            Organizational Charts
                                                    Tl
                                                                              RCMXTS TO
                                                                         HQ srricz or LKCAL mo
                                                                                    COUNSEL
                                                                                 A
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    RCKA  Coopliance/Enforcement
                                              Guidance  Manual 1984
    

    -------
     Chapter  Tvo
                                                    Organizational Charts
                                                        ni
                                             UCTODAL ADMINISTRATOR
                                                    OETOTT
                                             RICIONAL AOHINISTMTOR
                     ASSISTANT UCIOMAL
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                                                                                       A
                                                                    (Mvltorr  eo)
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                                      tRniCOVEXNKENTAL
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    BCRA  Conpllance/Enforcement
                                                     Guidance  Manual  f95?
    

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    Chapter Two
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    RCEA CompllaQce/Eaforceaeat
                            2-17
              Guidance Manual  1984
    

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     Chapter Tvo
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                                                 CIO* IX
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    uo 
    -------
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    RCRA CoBpllance/Eaforceaent
    2-L9
    Guidance Manual  1984
    

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    Chapter Tvo	Organizational Charts
    RCRA Compliance/Enforcement            2*20            Guidance Manual 1984
    

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    Chapter Three
    Compliance Monitoring  Procedures
    Chapter Contents	    Page
    
    
    1  Introduction                                          3-1
    
    
    2  Inspections                                           3-3
    
       Authority                                             3-4
       Scope                                  .              3-5
       Purpose                                              3-5
       Elements of an Inspection                               3-5
       Confidentiality                                       3-8
    
    
    3  Warrants '                                            3-9
    
       Policy                    .                           3-9
       Exceptions to the Warrant Requirement                    3-10
       Securing and Serving an Administrative Warrant            3-11
       Exhibit 3-1:  Model Application for an Administrative
                   Warrant                                  3-14
       Exhibit 3-2:  Model Affidavit in Support of Application
                   for an Administrative Warrant               3-15
       Exhibit 3-3:  Model Administrative Warrant                3-17
    
    
    4  Subpoenas                                             3-21
    
    
    5  Section 3013(a) Orders                                 3-23
    
       Authority                                             3-23
       Scope                                                3-24
       Enforcement                                           3-24
    RCRA Compliaoce/Enforceneat          3-i           Guidance Manual 1984
    

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    Chapter Three	                    Contents
    RCRA Compliance/Enforcement            3-ii            Guidance Manual 1984
    

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    Chapter  Three
    1     Introduction
    Compliance monitoring is a Cera used  Co describe che means by which EPA
    verifies conforraance wich statutory and regulatory requirements.   In the
    context of RCRA, this involves  the use of compliance inspections,
    information requests under Section 3007(a), and Section 3013(a) orders.
    
    In the event that an owner or operator of a regulated establishment denies
    an inspector entry to perform an inspection, an administrative warrant  can
    be used to gain entry into the  establishment.  Furthermore, Section 3013(a)
    authorizes, under certain circumstances, the use of an administrative  '
    order.  The administrative order would require that reasonable testing,
    analysis, and monitoring be conducted by che owner or operato-r of  a
    hazardous waste facility or site to ascertain the nature and extent of  a
    situation that may present a substantial hazard to human health or the
    environment.
    
    This chapter briefly outlines the procedures associated with these RCRA
    compliance monitoring activities.  For detailed procedures relating to
    inspections, refer to the RCRA  Inspection Manual.
    RCRA Compliance/Enforcement            3-1            Guidance Manual 1984
    

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    Chapter Three	Introduction
    RCRA Compliance/Enforcement              3-2  '         Guidance Manual 1984
    

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    Chapter Three
    2     Inspections
    A compliance inspection is Che primary  enforcement mechanism used to detect
    and verify violations of RCRA.  Establishments are selected for inspection
    either under a neutral administrative inspection scheme or "for cause"
    (i.e., where probable violations of the Act are observed or brought to Che
    attention of the Agency through, for example, an employee's complaint or a
    competitor's tip).  Selection of an inspection site may be made, depending
    on the circumstances, by Headquarters or Regional Offices.
    
    Evidence obtained during an inspection  may result in the Agency taking any
    of the following actions:
    
         •  Issuance of a warning letter;
    
         •  Issuance of an administrative order;
    
         •  Assessment of an administrative civil penalty;
    
         •  A permit action;
    
         •  Institution of a civil court action; and
    
         •  Institution of a criminal court investigation.*
    
    Compliance inspections conducted by EPA personnel under the authority of
    RCRA generally will not Involve the need to warn individuals of their
    rights under the fifth amendment of the United States Constitution.  The
    fifth amendment provides that "No person * * * shall be compelled in any
    criminal case to be a witness against himself."  Issues concerning this
    right arise whenever a person is taken  into custody or otherwise has his or
    her freedom restricted by law enforcement officers.  Since inspections
    under RCRA are generally not conducted  by law enforcement officers and do
    not involve custodial situations, fifth amendment rights are not
    implicated.
    *  See Agency guidelines entitled  "The  Use of Administrative Discovery
       Devices in the Development  of Potential Criminal Cases," which may be
       obtained from the Criminal  Enforcement Division.
    RCRA Coapliance/Enforceaent              3-3           Guidance Manual 1984
    

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    Cnapcer Three	                   Inspections
    All individuals who conduce inspections should be aware of what constitutes
    a custodial situation.  When an individual is under arrest, he or she is
    clearly in-custody.  However, a custodial situation may also be created
    when, as a result of the demeanor and authority of the questioner and the
    physical situation, the person being questioned reasonably believes that he
    or she is being restrained against their will.  Such custodial situations
    should be avoided during an administrative inspection.
    Authority
    The authority to conduct inspections is contained in Section 3007(a) of
    RCRA.  The section specifically states:
    
         * * * [A]ny person who generates, stores, treats, transports,'
         disposes of, or has handled hazardous wastes shall, upon request
         of any officer, employee, or representative of the Environmental
         Protection Agency, duly designated by the Administrator, or upon
         request of any duly designated officer, employee, or representa-
         tive of a State having an authorized hazardous waste program,
         furnish information relating to such wastes and permit such
         person at all reasonable times to have access to, and to copy all
         records relating to such wastes.  * * * [SJuch officers,
         employees, or representatives are authorized —
    
         (1) to enter at reasonable times any establishment or other place
             where hazardous wastes are, or have been, generated, stored,
             treated, or disposed of, or transported from;
    
         (2) to inspect and obtain samples from any person of any such
             wastes and samples of any containers or labeling for such wastes.
    
    Inspections must be conducted in a prescribed manner, which Includes the
    following:
    
         •  Presenting appropriate credentials to the owner, operator, or agent
            in charge of the premises to be inspected;
    
         •  Entering the establishment at a reasonable time and completing the
            inspection with reasonable promptness;
    
         •  Issuing a receipt for samples;
    
         •  Providing a duplicate sample (split sample), if requested; and
    
         •  Furnishing to the owner, operator, or agent in charge a copy of any
            sample analysis, if conducted.
    RCRA Compliance/Enforcement              3-4           Guidance Manual 1984
    

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    Chapter Three	Inspections
    Scope
    The scope of a RCRA inspection extends Co any establishment or other place
    where hazardous wastes are (or have been) generated, stored, treated,
    disposed of, or transported from.  In addition, inspectors have access to
    and may copy all records relating to the hazardous waste of any person who
    generates, treats, stores, disposes of, or transports any hazardous waste
    or who has handled such waste in the past.  An inspection may include
    caking samples of hazardous waste or obtaining samples of any containers or
    labeling for such waste.
    Purpose
    Section 3007(a) of RCRA authorizes the use of an inspection either to
    gather data for developing or assisting in the development of any RCRA
    regulation or perait or to ensure compliance with the provisions or
    regulations promulgated under the Act.  In the context of a compliance
    inspection, the inspector's role is:
    
         •  To inform che regulated industry of the requirements of the law;
            and •
    
         •  To document suspected violations.
    Elements of an Inspection
    The elements of a RCRA compliance inspection can be grouped into the
    following categories:  (1) pre-inspection preparation;  (2) entry;  (3)
    opening conference; (4) sampling and documentation; (5) closing conference;
    and (6) report preparation.  These elements are common Co all inspections,
    but the emphasis given Co che separate elements will vary with Che needs of
    Che individual inspection.
    Pre-inspection Preparacion
    
    To ensure effective use of the inspector's time, the following procedures
    are undertaken before beginning an inspection:
    
         •  Establishing inspection objectives;
    
         •  Establishing the scope of Che inspection;
    RCRA Compliance/Enforceaent              3-5           Guidance Manual 1984
    

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    Chapter Three	s	Inspections
    
    
         •  Conducting a review of Agency and state records;
    
         •  Preparing necessary documents; and
                  *
         •  Preparing sampling equipment and safety equipment.
    
    
    Entry
    
    Entry procedures are followed to obtain entry into the premises.  Entry
    involves the following steps:
    
         •  Introduction;
    
         •  Presentation of official credentials; and
    
         •  Management of denial of entry, when necessary (see Section 3 of
            this chapter).
    
    
    Opening Conference .
    
    After entry, the inspector conducts an opening conference with the
    establishment's management.  During the opening conference, the inspector
    is responsible for the following activities:
    
         •  Discussing the objectives and scope of the inspection;
    
         •  Advising management of the availability of duplicate samples (split
            samples);
    
         •  Providing management with information on RCRA and its rules; and
    
         •  Planning meetings with personnel.
    
    
    Sampling and Documentation
    
    Reviewing facility records, taking official samples, and preparing
    documentation are the basic inspection activities.  It is these activities
    that provide the evidentiary support that the Agency uses in enforcement
    actions.  The inspector's responsibilities include the following:
    
         •  Targeting and locating establishment records;
    
         •  Inspecting establishment records;
    
         •  Preparing documentation of all Inspection activities;
    
         •  Examining equipment and operations;
    
         •  Inspecting conditions and taking photographs, if necessary;
    RCRA Compliance/Enforcement              3-6           Guidance Manual 1984
    

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    Chapter Three	        	                       Inspections
         •  Taking necessary samples, splitting samples if requested, sealing
            samples, and establishing chain of custody; and
    
         •  Operating in a safe and efficient manner.
    Closing Conference
    
    The closing conference with establishment officials enables the inspector
    to prepare receipts, answer questions, and provide information about RCRA.
    At the closing conference, the inspector concludes the inspection by:
    
         •  Ensuring that necessary sample receipts have been issued;
    
         •  Advising that results of analysis of an official sample will be
            furnished if and when analysis is made; and
    
         •  Discussing inspection findings.
    Report Preparation
    
    All evidence must be organized and coordinated in a comprehensive,  rele-
    vant, and accurate report that includes the following:
    
         •  Inspection report forms;
    
         •  Narrative report; and
    
         •  Other documentary support.
    
    Suspected violations are to be documented in the above  reports.   Compliance
    enforcement personnel will review the report file to determine the  adequacy
    of the evidence.  Any information needing clarification should be reviewed
    with the inspector.
    Confidentiality
    Pursuant to Section 3007(b) of RCRA, any records,  reports,  or other
    information that is obtained as a result of an inspection is available to
    the public, unless a claim of confidentiality is asserted under EPA's
    business confidentiality regulations, 40 C.F.R.  Part 2.   (See Chapter
    Eleven for a discussion on confidential business information.)
    RCRA Compliance/Enforcenent              3-7           Guidance Manual 1984
    

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    Chapter Three	                         Inspections
    RCRA Compliance/Enforcement              J-o           Guidance Manual
    

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    Chapter Three
    3    Warrants
    An administrative warrant can be  used  to gain entry into an establishment
    when establishment officials have denied entry  to an inspector or have
    withdrawn their consent to inspect during  an inspection.  In certain
    circumstances, it may be necessary to  obtain a  warrant prior Co an
    inspection.   A warrant is a judicial authorization for an appropriate
    official (EPA inspector, U.S. Marshal,  or  other authorized officer) to
    enter a specifically described location and perform clearly defined
    inspection functions.
    Policy
    It is the policy of EPA to obtain  a warrant when all other efforts to gain
    lawful entry have been exhausted.  This  policy, of course, does not apply
    to pre-inspection warrants,  which  may  be obtained under circumstances
    described later in this chapter.
    Marshall v.  Barlow's,  Inc.
    
    In Marshall  v. Barlow's.  Inc..  436  U.S.  307  (1978), the Supreme Court
    addressed the need for an administrative warrant when an Occupational
    Health and Safety Administration inspector sought entry into a workplace
    where consent for Che  inspection was  not voluntarily given by the owner.
    The Court concluded that  an administrative warrant was required to conduct
    such regulatory inspections unless  the  industry is one with a history of
    extensive regulation,  such as  liquor  or firearms.
    
    As a matter  of policy, the Agency will  apply the requirements of Barlow's
    to all RCRA inspections.
    
    According to Barlow's, a  warrant may  be obtained where there is a specific
    reason to think that a violation has  been committed (i.e., where there is
    probable cause, such as an employee's complaint or a competitor's tip).  A
    warrant may  also be issued if  the Agency can show that the establishment to
    be inspected has been  selected  pursuant to a neutral inspection scheme.
    RCRA Compliance/Enforcement              3-9           Guidance Manual 1984
    

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                                                                      Warrants
    Seeking a Warrant Before Inspection
    
    In certain circumstances, a warrant nay be obtained before an inspection
    begins.  Such a pre-inspection warrant may be sought if any of the
    following co«dltions is met:
    
         •  A violation is suspected and could be covered up within the time
            needed to secure a warrant;
    
         •  Prior correspondence or other contact with the establishment to be
            inspected provides reason to believe that entry will be denied when
            the inspector arrives; or
    
         •  The establishment la unusually remote from a magistrate or a
            district court, and thus obtaining a warrant would require
            excessive travel time.
    Civil Versus Criminal Warrants
    
    If the purpose of the inspection is to discover and correct, through civil
    procedures, noncompliance with regulatory requirements, a civil warrant
    should be secured if entry is refused.
    
    If the primary purpose of the inspection is to gather evidence for a
    criminal prosecution and there is. sufficient evidence available to
    establish probable cause for a criminal warrant, a civil warrant should not
    be used to gain entry.  Rather, a criminal search warrant must be obtained
    pursuant to Rule 41 of the Federal Rules of Criminal Procedure (Fed. R.
    Grim. P.).  (See Agency guidelines entitled "The Use of Administrative
    Discovery Devices in the Development of Potential Criminal Cases.")
    
    Evidence obtained during a valid civil inspection is generally admissible
    in criminal proceedings.
    Exceptions to the Warrant Requirement
    
    
    The law recognizes the right of warrantless entry under the following
    circumstances:
    
         •  Consent.  Consent by the owner, his or her agent, or the person in
            charge of the property or premises will validate an entry and
            subsequent Inspection.  Consent, however, must be given freely and
            voluntarily and not as the result of duress, misrepresentation, or
            coercion, either expressed or implied.  While the law does not
            absolutely require that an individual be informed of his or her
            right to refuse entry, such knowledge may be helpful in validating
            the consent and in overcoming any taint of implied coercion, such
            as the presentation of credentials.
    RCRA Compliance/Enforcement              3-10          Guidance Manual 1984
    

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    Chapter Three	Warrants
    
    
            la Che case of repeated inspections or inspections that involve
            multiple instances of entry or sampling, it is necessary that
            consent be gained at each entry or sampling unless prior consent
            has been obtained to cover all such inspections.   Accordingly,  at
            the onset of an inspection, the inspector should  seek to gain
            consent sufficient to authorize all entry and sampling activities
            that he or she contemplates will be necessary to  complete the
            inspection.
    
         •  Exigent Circumstances.  In an emergency in which  there is no time
            to get a warrant, a warrantless inspection is permissible.   Exigent
            circumstances would include potential imminent hazard situations,
            as well as situations in which chere is potential for destruction
            of evidence or in which evidence of a suspected violation may
            disappear during the time that a warrant is being obtained.
            Because of the heavy burden imposed upon the Agency to show that
            its entry without authority was justified,  this exception to the
            warrant requirement should be used only in rare and emergency
            situations.  Also, if entry is refused during an  emergency,  the
            Agency would need the assistance of a U.S.  Marshal to gain entry,
            and a warrant could probably be obtained during the time necessary
            to ensure the marshal's assistance.
    
         •  Plain View/Open Fields.  The doctrine of plain view applies  in
            those instances in which an inspector has lawfully entered private
            property or premises (such as to conduct monitoring) and
            subsequently encounters a violation in his or her "plain view."
            The Inspector's observations of such violations are admissible.
    
            The open field doctrine states that an inspector  may observe and
            document a violation occurring in an open area within his or her
            view so long as the inspector does not enter the  property on which
            the violation is occurring.  For example, an inspector on a  country
            road can observe and prepare evidence on a violation occurring  in a
            field adjacent to that road.
    Securing and Serving an Administrative Warrant
    The following procedures for obtaining and serving an administrative
    warrant have been developed in accordance with the Barlow's  decision.
    Important Procedural Considerations
    
         •  The application for a warrant should be made as soon as  possible
            after the denial of entry or withdrawal of consent.
    RCRA Compliance/Enforcement              3-11          Guidance Manual 1984
    

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    Chapter Three	Warrants
            To satisfy the requirements of the Barlow's decision, the affidavit
            in support of the warrant must include a description of the reasons
            why the establishment has been chosen for inspection.
            The only acceptable reasons are specific probable cause or
            selection of the establishment for inspection pursuant to a neutral
            administrative inspection scheme.
    
            A warrant must be served without undue delay and within the number
            of days stated on the document (standard is 10 days).  The warrant
            will usually direct that it be served during daylight hours.
    
            Because the Inspection is limited by the terms of the warrant,  it
            is very Important to specify to the greatest extent possible the
            areas intended for inspection, records to be inspected, samples to
            be taken, etc.  A vague, overly broad warrant, probably will not be
            signed by the magistrate.
    
            If the owner refuses entry to an inspector holding a warrant but
            not accompanied by a U.S. Marshal, the inspector should leave the
            establishment and inform the U.S. Attorney.
    Procedures for Obtaining a Warrant
    
         1.  Contact the Regional Counsel's Office.  The inspector should
             discuss with the Regional Counsel's Office the facts regarding the
             denial or withdrawal of consent or the circumstances that gave
             rise to the need for a pre-inspection warrant.  A joint deter-
             mination will then be made whether to seek a warrant.
    
         2.  Contact Headquarters.  The Regional Office should notify
             Headquarters OWPE prior to obtaining a warrant.
    
         3.  Contact the United States Attorneys Office.  After a decision has
             been made to obtain a warrant, the designated regional official
             should contact the U.S. Attorney for the district in which the
             property is located.  The Agency should assist the United States
             Attorneys Office in the preparation of the warrant and necessary
             affidavits.
    
         4.  Apply for the Warrant.  The application for a warrant should iden-
             tify the statutes and regulations under which the Agency is
             seeking the warrant.  The name and location of the site or estab-
             lishment to be inspected should be clearly identified, and, if
             possible, the owner and/or operator should be named.  The applica-
             tion can be a one- or two-page document if all factual require-
             ments for seeking the warrant are stated in the affidavit, and the
             application so states.  The application is to be signed by the
             U.S. Attorney.  (See Exhibit 3-1.)
    RCRA Compliance/Enforcement              3-12          Guidance Manual 1984
    

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    Chapter Three	Warrants
    
    
         5.  Prepare the Affidavit.  The affidavit in support of the warrant
             application is a crucial document.  It is a statement reduced to
             writing, and sworn to or affirmed before a notary public, that
             describes in consecutively numbered paragraphs all of the facts in
             support of warrant issuance; and it should be prepared by a person
             with firsthand knowledge of those facts, most likely the
             inspector.  (See Exhibit 3-2.)
    
         6.  Prepare the Warrant for Signature.  A proposed warrant should be
             prepared for the magistrate's signature.  Once signed, the warrant
             is an enforceable document.  The warrant should .contain a "return
             of service" or "certificate of service" that will indicate upon
             whom the warrant was served.  This part of the warrant is to be
             dated and signed by the inspector after the warrant is served.
             (See Exhibit 3-3.)
    
         7.  Serve the Warrant.  The warrant is served on the establishment's
             operator, owner, or agent in charge, and the inspection will
             normally commence or continue.  Where there is probability that
             entry will still be refused or where there are threats of
             violence, the inspector should be accompanied by a U.S. Marshal.
             In this case, the marshal is principally charged with executing
             the warrant, and the inspector should abide by the marshal's
             decisions.
    
         8.  Perform the Inspection.  The inspection should be conducted
             strictly in accordance with the warrant.  If sampling is
             authorized, all procedures must be followed carefully, including
             presentation of receipts for all samples taken.  If records or
             other property is authorized to be taken, the inspector must issue
             a receipt for the property and maintain an inventory of anything
             removed from the premises.  This inventory will be examined by the
             magistrate to ensure that the warrant's authority has not been
             exceeded.
    
         9.  Return the Warrant.  After the inspection has been completed, the
             warrant must be returned to the magistrate.  Whoever executes the
             warrant (i.e.. the U.S. Marshal or whoever performs the inspec-
            • tion) must sign the return of service fora indicating to whom the
             warrant was served and the date of service.  The executed warrant
             is then returned to the U.S. Attorney who will formally return it
             to the issuing magistrate or judge.  If anything has been physi-
             cally taken from the premises, such as records or samples, an
             inventory of such items must be submitted to the court, and the
             inspector must be present to certify that the inventory is accu-
             rate and complete.
    RCRA Compliance/Enforcement              3-13          Guidance Manual 1984
    

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    Chapter Three                                       	ggh-tfalt 3-1
    
    
                    Model Application for Administrative Warrant
                            UNITED STATES DISTRICT COURT
    
                                     DISTRICT OF
      IN THE MATTER OF:         )          Docket No.
                                )
                                )          Case No.
                                )          Application for an
                                )          Administrative Warrant
           NOW COMES a duly designated representative of the Administrator of
      the United States Environmental Protection Agency, by and through
      	(name)	,  United States Attorney for the	District of
      	 and applies  for an administrative warrant of entry,  inspection,
      reproduction of records, and sampling to determine compliance with the
      Resource Conservation and Recovery Act,  as amended, 42 U.S.C.  §6901,
      and as authorized by Section 3007 of the Act,  42 U.S.C.  §6927 of the
      premises at   (description of the premises)  in the possession,
      custody, or control  of the   (name of company or owner).   In support of
      this application, the duly designated representative of the
      Administrator respectfully submits an affidavit and a proposed warrant.
    
                                            Respectfully submitted,
                                             (Signature of U.S.  Attorney)
                                            United States Attorney for the
                                                     District  of
           (Date)
    RCRA Compliance/Enforcement              3-14          Guidance Manual 1984
    

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    Chapter Three
                             Exhibit 3-2
                           Model Affidavit in Support of
                     Application for an Administrative Warrant
                            UNITED STATES DISTRICT COURT
                                               •
    
                                     DISTRICT OF
      IN THE MATTER OF:
    Docket No.
    
    Case No.
                                           Affidavit In Support of
                                           Application for an
                                           Administrative Warrant
      State of
      County of
      (Name of affiant)
      his(her) oath, according to law, deposes and says:
    
          1.  I am a compliance/enforcement officer with the
      United States Environmental Protection Agency, Region
                being duly sworn upon
                         (division)
                              ,  and
      have been duly designated by the Administrator of the United States
      Environmental Protection Agency for the purpose of conducting inspections
      pursuant to Section 3007 of the Resource Conservation and Recovery Act,
      as amended, 42 U.S.C. §6901 et seq.  I hereby apply for an administrative
      warrant of entry, inspection, reproduction of records, and sampling of
      premises in the possession, custody, or control of the (name of company
      or owner).
    
             2.  (Name of establishment or premises) is a (describe business)
      that the undersigned compliance officer of the United States
      Environmental Protection Agency has reason to believe is in violation
      of the Resource Conservation and Recovery Act.  This belief Is based upon
      the following facts and information:  (Describe with particularity the
      reasons why a violation is suspected and the specific facts that give
      rise to probable cause or su"""arize the neutral administrative inspec-
      tion scheme used to select the premises for inspection.)
    RCRA Compliance/Enforceaent
      3-15
    Guidance Manual 1984
    

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    Cnapcer Three	Exhibit 3-2
          3.  The entry,  inspection,  reproduction of records,  and sampling will
      be carried out with reasonable promptness, and a copy of the results of
      analyses peffonned on any samples or material collected will be
      furnished to the owner,  operator, or agent in charge of the subject
      premises.  If requested,  a portion of each sample will  be provided.
    
          4.   The compliance/enforcement officer may be accompanied by one or
      more compliance/enforcement officers of the United States Environmental
      Protection Agency.
    
          5.   A return will be made  to the court at the completion of the
      inspection, reproduction of records, and sampling.
                                         (Signature  of affiant)
                                         (Title)
                                         (Division)
                                         Region (  )
                                         United States  Environmental
                                         Protection  Agency
         Before me,  a notary public of the State  of
      County of                     .  on this ____^__ day of
      19 _ ,  personally appeared                    .  and upon oath stated
      that the facts set forth in this  application are  true  to his(her)
      knowledge and belief.
    
                                         (Signature of  Notary) _
                                         A Notary Public  of
                                         My Commission  Expires
    RCRA Compliance/Enforcement              3-16          Guidance Manual 1984
    

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    Chapter Three	  Exhibit 3-3
    
    
                           Model Administrative Warrant
                            UNITED STATES DISTRICT COURT
    
                                     DISTRICT OF
      IN THE MATTER OF:         )          Docket No.
                                )
                                )          Case No.
                                )          Warrant of Entry,  Inspection,
                                )          Reproduction of Records,
                                )          Photography, and Sampling
         To 	(name)	,  	(title)	,  United States
      Environmental Protection Agency, Region 	,  and  any other duly desig-
      nated officer, employee,  or representative of the Administrator of the
      United States Environmental Protection Agency:
    
         Application having been made by the United States Attorney on behalf
      of the United States Environmental Protection Agency (EPA) for a warrant
      of entry, inspection, reproduction of records,  and  sampling to determine
      compliance with the Resource Conservation and Recovery Act, as amended,
      42 U.S.C. $6901 et seq.;  and, the court being satisfied that there has
      been a sufficient showing that reasonable legislative or administrative
      standards for conducting an inspection and investigation have been
      satisfied;
    
         IT IS HEREBY ORDERED that EPA through its duly designated officers,
      employees, or representatives      (names of officers, employees, or
      representatives)	 is hereby entitled and  authorized to have entry
    
      upon the following described premises:
    
                                [Describe premises.]
    
         IT IS FURTHER ORDERED that entry,  inspection,  reproduction of
      records, and sampling shall be conducted during regular working
      hours or at other reasonable times, within reasonable limits, and
      in a reasonable manner.
    RCRA Compliance/Enforcement              3-17          Guidance Manual 1984
    

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    Chapter Three       	                        Exhibit 3-3
         IT IS FURTHER ORDERED that the warrant shall be for the purpose of
      conducting an entry, inspection, reproduction of records, and sampling
      pursuant to*42 U.S.C. S6927 consisting of the following activities:
    
                   (Describe specific activities.   For example:
    
                      (•  Entry to, upon, or through the above-described
                          premises including all buildings,  structures,
                          and sites where hazardous wastes are, or have
                          been, generated, stored,  treated,  or disposed  of,
                          or transported from.
    
                      (•  Inspection, sampling, and investigation of the
                          premises.
    
                      (•  Access to and reproduction of all  records
                          pertaining to or relating to hazardous wastes.)
          IT IS FURTHER ORDERED that,  if any property is seized,  the duly
      designated representative or representatives shall leave a  receipt for
      the property taken and prepare a written inventory of the property
      seized and return this warrant with the written inventory before me
      within 10 days from the date of the inspection.
    
         IT IS FURTHER ORDERED that this warrant shall be valid for a period
      of 10 days from the date of this warrant.
    
         IT IS FURTHER ORDERED that the United States Marshal is  hereby
      authorized and directed to assist the representatives of the United
      States Environmental Protection Agency in such manner as may be reason-
      able, necessary, and required.
    
                                            (Signature of Magistrate)	
    
           (Date)
    RCRA Compliance/Enforcement              3-18          Guidance Manual 1984
    

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     Chapter  Three 	.   	              Exhibit 3-3
                                 RETURN OF SERVICE
    
      I  hereby  certify  that a copy of the within warrant was served by present-
      ing  a  copy  of  same  to (establishment owner or agent) on    (date)     at
          (location of establishment or place)	.
      (Signature  of  person making service)
      (Official  title)
    
                                       RETURN
      Inspection of  the establishment described in this warrant was completed
      on 	(date)   .
      (Signature of person conducting the inspection)
    'RCRA Compliance/Enforcement              3-19          Guidance Manual 1984
    

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    Chapter Three
                          —		Exhibits
    RCRA Compliaace/EnforceMnt~T ^n	  . .
                         ceBenc             3_20           Guidance Manual  1984
    

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    Chapter Three
    4    Subpoenas
    RCRA does not provide for subpoena authority except in the context of a
    hearing held pursuant to a Section 3008 compliance order (see Section 5 of
    Chapter Seven).
    RCRA Compliance/Enforcement            3-21          Guidance Manual 1984
    

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     Chapter Three
    RCRA Compliance/EnforcementT^TlGuidance Manual  198A
    

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    Chapter Three
    5    Section 3013(a)  Orders
    In addition Co compliance  inspections, RCRA compliance monitoring activi-
    ties may also Involve,  under  certain circumstances, the use of Section
    3013(a) administrative  orders.  Such orders, which are issued to owners or
    operators of hazardous  waste  facilities or sites, require that reasonable
    testing, analysis,  and  monitoring be conducted with respect to a facility
    or site to ascertain the nature and extent of a situation that may present
    a substantial hazard to human health or the environment.
    Authority
    Pursuant to Section 3013(a)  of RCRA, the Administrator may issue an
    administrative order requiring the owner or operator of a facility or site
    (at which hazardous waste is, or has been, stored, treated,  or disposed of)
    to conduct such monitoring,  testing, analysis, and reporting with respect
    to the facility or site as the Administrator deems reasonable.  The  Admin-
    istrator, however, must first determine, upon the receipt of any informa-
    tion, that the presence of any hazardous waste at the facility or site or
    the release of any such waste may present a substantial hazard to human
    health or the environment.
    
    If the facility or site is no longer in operation and the present owner or
    operator could not reasonably be expected to have actual knowledge of the
    presence of any hazardous waste and of its potential for release, the
    Administrator is authorized  under Section 3013(b) to issue a Section
    3013(a) order to the most recent previous owner or operator of the site who
    could reasonably be expected to have such actual knowledge.
    
    The Administrator is also authorized under Section 3013(d) of RCRA to
    conduct the required monitoring, testing, or analysis (or he or she  may
    authorize a state or local authority or other person to carry out such
    activities) if the Administrator:
    
         •  Determines that the  appropriate owner or operator would not  be able
            to conduct the monitoring, testing, analysis, or reporting to the
            satisfaction of the  Administrator;
    RCRA Compliance/Enforcement            3-23           Guidance Manual  1984
    

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    Chapter Three	Section 3013(a) Orders
            Deems any such activities carried out by an owner or operator would
            be unsatisfactory; or
    
            Fails-to determine initially that there is an owner or operator who
            could reasonably be expected to have actual knowledge of the
            presence of hazardous waste at the facility or site and of its
            potential for release.
    Scope
    A Section 3013(a) order requires the person to whom the order was issued to
    submit to the Agency within 30 days from the issuance of the order a
    proposal for carrying out the required monitoring,  testing,  analysis,  and
    reporting.   The Administrator may,  after providing  the person an
    opportunity to confer with the Agency, require that the person carry out
    the proposal, as well as make any modifications in  the proposal as the
    Administrator deems reasonable to ascertain the nature and extent of the
    hazard.
    Enforcement
    The Agency may commence a civil judicial action against any person who
    fails or refuses to comply with a Section 3013(a) order.   Such an action is
    brought in the United States district court in which the defendant is
    located, resides, or is doing business.  The court may not only require
    compliance with the order but may also assess a civil penalty of not more
    than $5,000 for each day during which such failure or refusal occurs.  (See
    Chapter Eight for the procedures .relating to civil judicial actions.)
    RCRA Compliance/Enforcement              3-24          Guidance Manual 1984
    

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    Chapter Four
    Documentation of Evidence
    Chapter Contents	Page
    
    
    1   Introduction                                            4-1
    
    
    2   Inspection File Review                                    4-3
    
        Controlled Identification of Samples and  Documents            4-3
    
    
    3   Review of Adequacy of Evidence                             4-5
    
        Inspection File Documentation                              4-5
        Additional Sources of Documentation                         4-8
        Further Processing of the Inspection File—
         Enforcement Case Review                                 4-8
        Exhibit 4-1: Custody Seal                                4-10
        Exhibit 4-2: Chain of Custody Record                       4-11
    RCRA Compliance/Enforcement         4-i             Guidance Manual 1984
    

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     Chapter Four	'        Contents
    RCRA Compliance/Enforcement4^iiGuidance Manual 1984
    

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    Chapter Four
    1     Introduction
     Upon completion of a RCRA inspection,  enforcement  inspectors are .required
     to organize the documentary evidence that they have  collected  into an
     inspection file.  An inspection file may actually  consist of two separate
     files—a nonconfidential file and a confidential business information (CBI)
     file.
    
     Information gathered during a RCRA inspection that has  not been declared
     RCRA CBI is organized by the inspector into a package  referred to as the
     nonconfidential inspection file.  This file contains the inspector's report
     and all forms and nonconfidential documentary evidence  secured by the
     inspector that relate to the inspection.  Once compiled, the file is sent
     to the Regional Case Development Officer (RdDO) whose  responsibility it is
     to review the inspection results for possible enforcement action. •
    
     Information gathered during a RCRA inspection that has  been declared CBI is
     organized by the inspector into a package referred to as the CBI inspection
     file.  When an inspector returns from an inspection  with information that
     has been declared confidential, the information is immediately given to the
     Document Control Officer (DCO), who then assigns a document control number
     to the confidential material.  In addition, the inspector informs the DCO
     of any physical samples that vere declared confidential.  Physical samples
     are also assigned a document control number by the DCO  who, in turn, noti-
     fies the laboratory of this number.  (The document control number is used
     by laboratory personnel in completing the sample chain  of custody and
     laboratory analysis forms.)  Once CBI material has been logged in by the
     DCO, review of the information by the RCDO must be in accordance with RCRA
     CBI control and security procedures.  (See Chapter Eleven for  a discussion
     of CBI procedures.)
    RCRA Compliance/Enforcement          4-1.Guidance Manual  1984
    

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    Chapcer Four	Introduction
    RCRA Compliance/Enforceaent5^2•Guidance Manual 1984
    

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    Chapter Four
    2     Inspection  File  Review
    Once the RCDO has received  Che inspection file,  the  file  oust be reviewed
    for the following:
    
         •  Proper identification of inspection samples  and documents (see
            below);
    
         •  Adequacy of  the documentation (see Section 3 of this chapter);
    
         •  Significance of the violation (see Chapter Five for level of action
            policy); and
    
         •  Violative history of the generator, transporter,  or TSD facility
            (see Chapter Five for level of action policy).  Violative history
            may be obtained from the Compliance Data System (CDS) and the
            regional case files.
    
    In some instances,  the RCDO will need to forward the file to Headquarters
    for an enforcement case review, which may include interpretation of
    laboratory test results.  In all cases, the RCDO must verify that all
    procedural safeguards were  implemented so as not to  prejudice a possible
    enforcement action.
    Controlled Identification  of Samples and Documents
    
    
    An important aspect of  any review by the RCDO is the  determination that
    inspection samples and  documents were properly collected and accurately and
    completely identified.
    
    Whenever a sample is taken,  the inspector should prepare a receipt for the
    sample.  Information that  should appear on the receipt  includes:
    
         •  Name, office address, and signature of the  inspector (sampler);
    
         •  Name and location  of the establishment;
    
         •  Sample number or station number;
    RCRA Compliance/Enforcement         4-3                Guidance Manual 1984
    

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    Chapter Four	Inspection 711e Review
    
    
         •  Station description;
    
         •  Niimber of containers;
    
         •  Date and time of collection;
    
         •  Description or type of sample;
    
         •  Duplicate samples, if provided;
    
         •  Custody tag numbers; and
    
         •  Name, title, and signature of individual who is given the receipt.
    
    If a sample or document is claimed as confidential,  a declaration of confi-
    dential business information should be completed and the .naterial must be
    handled in accordance with RCRA CBI control and security procedures.
    Information contained on the declaration includes:
    
         •  Name, office address, and signature of the  inspector;
    
         •  Name and address of the establishment;
    
         •  Name, title, and signature of the individual making the
            declaration; and
    
         •  List, by title or description,  of all information claimed as being
            RCRA CRI.
    
    A sample that is to be used as evidence may be sealed with an EPA custody
    seal (Exhibit 4-1), which is placed on a sample container by the inspec-
    tor.  Since the use of a seal is not required, it may not be present in the
    inspection file.  However, an accurate written record must be maintained to
    trace the possession of the sample from the moment  of collection through
    its introduction as evidence.  Therefore, the transfer of the sample from
    the inspector to other authorized persons must be recorded on an EPA Chain
    of Custody Record, which contains the following information (Exhibit 4-2):
    
         •  Name, office address, and signature of the  inspector;
    
         •  Sampling location;
    
         •  Sample and Inspection number;
    
         •  Date and time of collection;
    
         •  Sample analysis required;
    
         •  Remarks; and
    
         •  Names and dates of individuals involved in sample acceptance/
            relinquishment.
    RCRA Compliance/Enforcement4-4•Guidance Manual 1984
    

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    Chapter Four
    3    Review  of Adequacy of  Evidence
    In mosc cases,  a RCRA violation will  be documented through a  combination of
    evidential sources.  These sources may include, for example,  the contents
    of an inspection file, correspondence between EPA and an alleged violator,
    or information  contained in a permit  application.  The RCDO's review of
    this information must seek to substantiate each element of a  possible
    violation.*  Any such review should focus on the adequacy of  the evidence
    by ensuring the following:
    
         •  The validity and quality of the evidence;
    
         •  That all necessary documentation has been provided; and
                                                                         •
    
         •  That such documentation is adequate to substantiate the substance
            of the  violation.
    
    The purpose of  the review is to develop a recommendation for  action on the
    violation; either to proceed with an  enforcement action or to dismiss the
    violation as not worthy of prosecution.
    
    In some instances, review will indicate possible violations not documented
    by the inspection.  In these cases, the RCDO should seek to secure the
    additional documentation for the new  violation.  This may require further
    consultation with the inspector or forwarding the file to Headquarters for
    an enforcement  case review.  When a violation is discovered that is unre-
    lated to the initial suspected violation, the new violation should be
    pursued as a new action.
    Inspection File Documentation
    The following  items, which are normally contained in an Inspection file,
    should be reviewed  to ensure the adequacy of Che documentation.
       Elements  of  a violation are discussed  in Section 2 of Chapter Seven.
    RCRA Compliance/Enforcement4-3Guidance Manual 1984
    

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    -..io^.er rour                                 Revieg of Adequacy of Evidence
    
    
    Inspection Report.  The report should be reviewed for factual information,
    professional judgments, objectivity, and comprehensiveness.
            • •                           <
    Custody Records.  There should exist a complete inventory of sample tags/
    seals (Exhibit 4-1), chain of custody records (Exhibit 4-2), and related
    aaterial that demonstrates the traceability and proper identification of
    all samples taken during an inspection.
    
    Laboratory Analyses.  Laboratory analyses made in connection with the
    inspection may be included in the inspection file.   Any such analyses
    should be reviewed for custody, methods, quality control, and proper
    identification.
    
    Declaration of Confidential Business Information.*  The declaration should
    be examined for signatures, dates, and a complete listing of all documents
    and data for which CBI was claimed.
    
    Other Evidential Documentation.  The following items should  also be
    reviewed, if included in Che inspection file:
    
         •  Affidavits.  Affidavits are sworn statements taken by the inspector
            that relate to personal, firsthand knowledge of a potential viola-
            tion.  Affidavits may be used to substantiate a violation or to set
            the circumstances surrounding a violation.   Careful  review of an
            affidavit should be made for evidence in support of  an enforcement
            action.  The person making the affidavit must sign it and be able
            to verify personally the facts contained in the statement.
    
            The objective of an affidavit is to obtain a clear and concise
            written record of factual information relating to a  suspected vio-
            lation.  The oath taken by the person making the affidavit serves
            to substantiate the truth of the statement.  Affidavits, for
            example, may be used to verify the dates obtained from an
            establishment's records.  Review should emphasize the admissibility
            of the affidavit in court.  This includes determining whether the
            affidavit was properly executed and whether it contributes valid
            evidence to any contemplated proceeding.  The affidavit itself
            should contain the following:
    
            — Identity of the affiant (i.e.. the person providing the sworn
               statement),
    
            — The reason why the affidavit was taken,
    
            — The pertinent facts in a simple narrative style,  arranged in
               chronological order,
       The Declaration of Confidential Business Information is contained in the
       inspection file when materials have been claimed as confidential.
    RCRA Compliance/Enforcement         4-6                Guidance Manual 1984
    

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    Chapcer Four	Review of Adequacy of Evidence
            —  A concluding paragraph indicating that the affiant read and -
                understood the statement,' and
    
            —  The notarized signature of the affiant.
    
            In addition, any corrections made to the final copy must be
            initialed by the affiant.
    
         •  Statements.  Statements are similar in most respects to affidavits
            except that statements are not taken under oath and, therefore, do
            not have as much evidentiary weight as do affidavits.   Statements
            can be used to verify data collected during an inspection.   They
            can also be used as admissions by the source as to who owns,
            operates, or controls the facility.  Review should verify the per-
            son's identity and the truth of the statement through a signature
            or some other written or verbal acknowledgment.
    
         •  Waivers and Other Establishment Records.  Requirements for  ground-
            water monitoring may be waived if the owner or operator demon-
            strates that there is a low potential for hazardous waste migration
            via the upper aquifer to water supply wells.  If the waiver was
            granted, the facility must have a written document, certified by a
            geologist or geotechnical engineer, on the premises.  Other docu-
            ments that an establishment may maintain and that may be included
            in an inspection file should also be reviewed.  Such documents
            include copies of manifests, waste analyses plans, general  inspec-
            tion records, employee training records, contingency plans, ground-
            water monitoring system, laboratory analyses of environmental
            samples, and closure and post-closure plans.
    
         •  Printed Matter.  Brochures, literature,  labels, and other printed
            matter may provide important information regarding a firm's condi-
            tions and operations.  These materials may be collected as  documen-
            tation if, in the inspector's judgment,  they are relevant.   All
            printed matter should be identified with the date, the inspection
            name, and related sample numbers.
    
         •  Photographs.  The documentary value of photographs ranks high as
            admissible evidence.  Clear photographs  of a relevant  subject,
            taken in proper light and at proper lens setting provide an objec-
            tive record of conditions at the time of inspection.  Review must
            ensure that the photographs are clear, objective,  and  properly
            identified.  The photographs should be identified by location,
            purpose, date, time, inspector's name, and related sample number.
            This information should be recorded on the photographs and  in the
            inspector's field notebook.
    
         •  Drawings and Maps.  Schematic drawings,  maps, charts,  and other
            graphic records can be useful in supporting violation documenta-
            tion.  They can provide graphic clarification of site location
            relative to height and size of objects,  and other information that,
            in combination with samples, photographs, and other documentation,
            can produce an accurate, complete evidence package.  Review should
    RCRA Compliance/Enforcement          4-7Guidance Manual 1984
    

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    Chapter Four	Review of Adequacy of Evidence
    
    
            ensure chat drawings and maps are simple and free of extraneous
            details.  Basic measurements and compass points should be included
            to provide a scale for interpretation.
                •
         •  Mechanical Recordings.  Records produced by an electronic or
            mechanical apparatus can be entered as evidence.  Review of charts,
            graphs, and other hard copy should ensure relevance and identity.
            The data collected should be identified by date of collection,
            Inspector's name, and related sample matter.
    Additional Sources of Documentation
    Frequently, additional information will be needed in order to complete the
    review of the inspection file.  In some cases,  this information will be
    provided by subsequent reports.  If not, che RCDO should seek to obtain the
    additional information or elaboration from the most knowledgeable source.
    Additional sources of documentation include:
    
         •  Inspector's Narrative Report;
    
         •  Inspector's Field Notebook;
    
         •  Records relating to an establishment's financial and internal
            management structure that may be used to establish the "owner or
            operator" or financial status of the facility or site.  Such
            records include:
    
            — State and local records showing name of corporation, state of
               incorporation, and tax records showing payment of taxes for the
               facility,
    
            — Financial service records; excerpts from publications such as
               Moody ' s and Standard and Poor's, which often list assets, and
    
            — SEC Forms 10K and 10Q;
    
         •  Permit applications; and
    
         •  Correspondence between EPA and the establishment.
    Further Processing of the Inspection File—Enforcement Case Review
    Once the investigative file and other documentation have been initially
    reviewed, further case development may be necessary at Headquarters.   If
    so, the case file should be sent to the appropriate Headquarters Case
    RCRA Compliance/Enforcement          4-8               Guidance Manual 1984
    

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    Chapter Four	Review of Adequacy of Evidence
    
    
    Development Officer (HQCDO).  Aspects of the case that could require
    further processing include:
                 •
         •  Failure to comply with recordkeeping and reporting requirements;
    
         •  Scientific reviev to determine the significance of any discrepancy
            in chemical composition, toxicity, or risk assessment;
    
         •  Relationship of suspected RCRA violation to other federal laws;
    
         •  New program elements for which policy interpretations  must be
            established; and
    
         •  New or existing programs In which information is normally kept  on
            file at Headquarters.
    RCKA Compliance/Enforcement          4-9               Guidance Manual 1984
    

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    Chapter Four
                                                                    Exhibit 4-1
                                    Custody Seal
                                    LU
                                    CO
                                    0
                                    o
    
                                    CO
    
                                    o
     a
                                            I
                                            CO
                                   1
                                    LU
                                    CO
    
    
                                    O
                                    o
    
                                    CO
                                            CO
    
                                            O
                                            o
                                            m
                                             9
                                            CO
                                   tfl
    
                                   9
    RCRA Compliance/Eoforceaent
    4-10
                                                          Guidance Manual 1984
    

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    Chapter Four
                                Exhibit 4-2
                              Chain of Custody  Record
                 Gain of Cu«DCy Record
                                                                     (••.IK
     RCRA Compliaace/Eoforceoeot
    TTT
    Guidance Manual 1984
    

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         Chapter  Four
                                                                            Exhibits
    RCRA Compliance/Eoforcea
                             5Qt
                                                           Guidance Manual  1987
    

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    Chapter Five
              •
    
    Determination  of Appropriate Enforcement
    Response
    Chapter Contents	Page
    
    
    1   Introduction                                       5-1
    
    
    2   Level of Action Policy                               5-3
    
        Warning Letters                                    5-3
        Administrative Orders                                5-3
        Permit Actions                                     5-6
        Civil Proceedings                                   5-7
        Injunctive Actions                                  5-7
        Criminal Proceedings                                 5-10
    RCRA Compliance/Enforcement5-i         Guidance Manual 1984
    

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    Chapter Five	                        Contents
    RCRA Conpliance/Enforceaent              5-ii            Guidance Manual 1984
    

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    Chapter Five
    1     Introduction
     Once  che  documentation of a violation is complete and EPA personnel have
     determined  that an enforcement action is warranted,  EPA must decide upon
     the appropriate level of action that is justified by the severity of the
     violation.  EPA authorizes two categories of action—administrative and
     judicial.   The Agency generally will respond to violations of RCRA or its
     implementing  regulations through-the use of administrative actions.  Judi-
     cial  actions  are reserved usually for the following cases:
    
          •  Where a violator has failed to comply with an administrative order;
    
          •  Where long-term conduct needs to be compelled;
    
          •  Where violations are repeated or willful; or
    
          •  Where violations may result or have resulted in serious harm to
            human health or the environment.
    
     Administrative levels of action include the following:
    
          •  Warning letters;
    
          •  Section 3008 compliance orders;
    
          •  Civil administrative penalties;
    
          •  Section 3013 orders;
    
          •  Section 7003 orders; and
    
          •  Permit actions.
    
     The criteria  for using each of the above actions are discussed later in
     this  chapter.  Specific procedures for preparing and issuing these actions
     are found in  Chapter Six, "Administrative Enforcement Actions:  Notices of
     Violation and Administrative Orders," and Chapter Seven, "Administrative
     Enforcement Actions:  Civil Penalty Proceedings."
     RCRA Compliance/Enforcement             5-1            Guidance Manual 1984
    

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    Chapter Five	    Introduction
    
    
    Judicial actions aay involve either civil or criminal proceedings.  The
    criteria for Che use of judicial actions are also discussed later in this
    chapter.  Civil proceedings include the following:
    
         •  Section 3008(a) injunctions;
    
         •  Section 3013(e) injunctions;
    
         •  Section 7003(a) injunctions; and
    
         •  Section 7003(b) injunctions.
    
    Criminal proceedings are authorized under Sections 3008(d) and 3008(e).
    Chapter Eight, "Judicial Enforcement:  Civil Actions," and Chapter Mine,
    "Judicial Enforcement:  Criminal Actions," discuss procedures for
    initiating civil and criminal judicial proceedings.
    RCRA  Compliance/Enforcement              5-2             Guidance Manual  1934
    

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     Chapter Five
    2     Level  of  Action  Policy
     Warning Letters
     A warning letter is a letter  tsued by EPA that advises a company or other
     person  chat a violation of R.  .-. ha-s been detected.  Although issuance of a
     varning  letter is not specif:  illy authorized  by RCRA, the letter can be a
     useful  enforcement tool and r / be considered  as being an appropriate res-
     ponse to minor violations of RCRA.
    
     A varning letter should include a deadline for achieving full compliance
     with the appropriate regulatory requirements of RCRA.  If any person fails
     to adhere to che schedule outlined in the warning letter, the Agency should
     consider a Section 3008 compliance order or other enforcement action.
    
     Because  the Agency is not required to issue a  warning letter before issuing
     an administrative order or commencing a judicial action, a warning letter
     should  be used only when the Agency believes that such a letter will be
     sufficient to compel compliance within a short time period.
     Administrative Orders
     Section  3008 Compliance Orders and Civil Administrative Penalties
    
     Under  Section 3008(a) of RCRA, EPA may issue  an administrative order to any
     person who violates any requirement of Subtitle C of RCRA.  Such orders are
     considered the appropriate enforcement response to most RCRA violations.
    
    *A Section 3008(a) order may require compliance either immediately or within
     a specified time period.  Section 3008(c) provides that any order issued
     may  assess a penalty, and Section 3008(g) authorizes the assessment of
     civil  penalties of up to $25,000 per day of violation.  In general, Section
     3008 compliance orders will include civil administrative penalties.
    
     Pursuant to Section 3008(a)(2) of RCRA, EPA must give notice (to the state
     in which the violation occurred) prior to issuing an order.  Such notice is
     required only if the state has interim or final authorization granted
     pursuant to Section 3006 of RCRA.  The Memorandum of Understanding, grant
    
     RCRA Compliance/Enforcement5r3Guidance Manual 1984
    

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    Chapter Five	               LeT«l of Action Policy
    agreement, or any other agreement  chat is negotiated  between  each
    authorized 'state and EPA should include, specific provisions for  such
    notifications.
    Section 3013 Orders
    
    Pursuant to Section 30L3(a) of RCRA, the Administrator may  issue  an  admin-
    istrative order requiring the owner or operator of a  facility or  site  (at
    which hazardous waste is, or has been, stored, treated, or  disposed  of)  to
    conduct such monitoring, testing, analysis, and reporting with  respect  to
    the facility or site as the Administrator deems reasonable.  The  owner or
    operator has 30 days from the issuance of the order to submit to  the Agency
    a proposal for carrying out the required monitoring,  testing, analysis,  and
    reporting.  The Administrator may, after providing the person with an
    opportunity to confer with the Agency, require that the person  carry out
    the proposal, as well as make any modifications in the proposal that the
    Administrator deems reasonable to ascertain the nature and  extent of the
    hazard.  Before a Section 3013(a) order can be issued, however,  the  Admin-
    istrator must first determine, upon the receipt of any information,  that
    the presence of any hazardous waste at the facility or site or  that  the
    release of any such waste may present a subsu rial hazard  to human  health
    or the environment.
    
    If the facility or site Is no longer in operation and the present owner  or
    operator could not reasonably be expected to have actual knowledge of  the
    presence of hazardous waste and of its the potential  for release, the
    Administrator is authorized under Section 3013(b) to  issue  a Section
    3013(a) order to the most recent previous owner or operator of  the site  who
    could reasonably be expected to have such knowledge.  Furthermore, under
    Section 3013(d) of RCRA, the required monitoring, testing,  or analyzing
    activity may be carried out by the Agency (or a state or local  authority or
    other person authorized by the Administrator) if the  Administrator:
    
         •  Determines that the appropriate owner or operator is not  able  to
            conduct monitoring, testing, analysis, or reporting satisfactory to
            the Administrator;
    
         •  Deems any such activities carried out by an owner or operator  to be
            unsatisfactory; or
    
         •  Fails to determine initially that there is an owner or  operator  who
            could reasonably be expected to have actual knowledge of  the pres-
            ence of hazardous waste at the facility or site or  of its potential
            for release.
    
    The Administrator, however, is authorized to issue an order requiring  the
    owner or operator (or previous owner or operator) to  reimburse  the Adminis-
    trator or other authority or person for the costs of  the activity.
    
    Section 3013 orders can be used to provide Information  to support enforce-
    ment action under Section 3008 or Section 7003.
    RCRA Compliance/Enforcement              5-4             Guidance Manual 1984
    

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    Chapter Six
                                  Exhibit 6-2
                                            - 9 -
               reliable.  The second area -- the competence of the contractor
               or consultant who will implement th* program -- ij delicate
               becauae EPA should not place itself in the position of formally
               approving or disapproving the professional qualifications of
               particular contractors and it should be made clear to the
               respondent that the respondent, not EPA, is responsible for
               the competence of the contractor.  However, the design and
               iapleaentation of the type of program which will be conducted
               under a 13013 Order requires engineers and ocher persons who
               are taovledgable in a variety of areas such as hydrology,
               geology and chemistry, aaong others.
    
                    While an owner or operator of a site should be at liberty
               to hire a contractor of his own choice, EPA should always
               require the technical aspects of the proposal to be very
               detailed and specific so as to avoid misunderstandings during
               the implementation of the program and should also require
               frequent status reports while the work is in progress.
    
                    In the event a conference results in a modified proposal.
               the respondent should either resubmit the entire proposal.
               as modified,  or if the modifications are not extensive,  the
               respondent may submit a separate amendment to the proposal.
               In all cases,  the proposal, and any amendments or modifications.
               should be signed by the respondent.
    
               PROPOSAL CONFERENCE
    
                    The Order must give the respondent an opportunity to
               confer on the proposal submitted for the monitoring plan.
               This conference will also afford the respondent the opportunity
               to indicate why the respondent should not be subject to  the
               Order.  A record in the fora of a tape recording or steno-
               grapher's notes should be made and included in the case  file.
               In the event  of subsequent litigation over the Order,  the
               recording or notes can then be transcribed for use. if necessary.
    
                    While the proposal aust be subsisted to EPA within  30 days
               after the date of tha Order,  we interpret !3013(c) to allow a'
               conference requested by the respondent to be held either before
               or after the  proposal is sufecitted.  Ksvever.  the holding of a
               conference eanr.ot vary or extend the 30 day period for submission
               of the proposal, so that if a conference is requested for a
               tiae before the proposal is submitted, the conference  Bust be
               held and the  proposal submitted within the 30 day period.
               Conferences to be held after submission of the proposal  should
               be scheduled  as soon as possible after submission (i.e..  not
               more than 30  days thereafter),  so as to avoid delay in finalizing
               the proposal.
    RCRA CoBjpliance/Enforcement
    6-17
    Guidance Manual I984
    

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    Chanter Six
                                  Exhibit  6-2
                                            - 10
                    Undtr the statute, chtrt is no requirement for public
               notice of cht conftrtnct or any requirement chac chird parties
               be adoitted to the conference.  However, nothing precludes the
               adaittance of a non-party to the conference, if the Region
               determines that such participation would be beneficial or
               desirable.  In certain cases, the Department of Justice,  the
               State or local pollution control agency and others may be
               appropriate attendees or participants.
    
                    Pursuant to information developed at the conference, EPA
               may modify the proposed sampling,  analysis and monitoring
               requirements contained in the Order as may be reasonably
               required to ascertain the nature and extent of the hazard.
               This may include modifications making the requirements more
               strict or extensive, as well as less extensive.
    
               A??SOVA1 07 PROPOSAL
    
                    An acknowledgement letter must be Issued under 53013 after
               review of the respondent's proposal has been completed.  The
               purpose of the letter is to acknowledge in writing the decision
               EPA has reached after review of the respondent's proposal.
               It should be signed, if possible,  by the person who signed the
               Order.  Section 3013(c) permits EPA to modify the proposal
               submitted by the respondent or to develop its own program of
               sampling, analysis and monitoring in order to determine the
               nature and extent of the hazard.  The letter should state
               whether the proposal has been accepted aod should specify what
               modifications, if any, have been made to the proposal.  This
               can be accomplished by attaching a copy of the proposal,  as
               modified, to the acknowledgement letter.  In the unlikely
               event that EPA plans to incorporate any major changes in the
               Order that were not discussed at the conference, EPA should
               notify the respondent of such changes before issuing the
               acknowledgement letter and provide reasonable opportunity to
               the respondent to comment upon such modifications.
    
               MONITORING PROGRAM BY EPA. STATE.  OR OTHER PERSONS
    
               Section 3013(d).  MONITORING. ETC., CARRIED OUT BY ADMINISTRATOR
    
                        "(1) If the Administrator determines that no
                         owner or operator referred to in subsection
                         (a) or (b) is able to conduct monitoring,
                         testing, analysis, or reporting satisfactory
                         to the Administrator, if the Administrator
                         deems any such action carried out by an owner
    RCRA  Conpliance/Enforcement
    6-18
    Guidance Manual  1984
    

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    Chapter Six
                                  Exhibit 6-2
                                             - 11 -
                          or- operator co be unsatisfactory,  or If cht
                          Administrator cannot initially  determine  that
                          there is an owner or optracor rtfarrid  to in
                          •ubiection (a)  or (b)  who  is  able  to conduct
                          •uch monitoring,  testing,  analysis,  or  rtporting.
                          ha may—
    
                               (A)  conduct monitoring,  ttstlng.  or
                               analysis (or any  combination  thereof)
                               which he deems  reasonable  to  ascertain
                               the nature and  extent of the  hazard
                               associated with the site concerned,  or
    
                               (B)  authorise  a  State or  local authority
                               or  other person to carry out  any such
                               action,
    
                          and  require,  by order, the owner or  operator
                          referred to in  subsection  (a) or (b)  to
                          reimburse the Administrator or  other
                          authority or  person  for the costs  of  such
                          activity.
    
                          (2)   No  order may  be issued under  this
                          subsection requiring reimbursement of
                          the  costs  of  any  action carried out by the
                          Administrator which  confirms the results
                          of an order issued under subsection  (a)
                          or (b).
    
                          (3)   For purposes  of carrying out this
                          subsection, the Administrator or any
                          authority  or  other person  authorised
                          under paragraph (1). may exercise the
                          authorities set forth in Section 3007."
    
                    The provisions  of  this  subsection provide  for  three
               situations where the  Agency may carry out the monitoring
               activities or  authorize others to do  so:
    
                          (1)   Where  no owner  or operator is able to conduct
               these activities satisfactorily;
    
                          (2)   Where  the testing conducted by the owner/operator
               is determined  to be  unsatisfactory;   or
    RC&A  CoBpliance/EnforceaenC
    6-19
    Guidance Manual 1984
    

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    Chapter Six
                                  Exhibit 6-2
                                            - 12 -
                         (3)  Where it cannot be determined initially whtchtr
               there it an owner or operator Able co conduce rhe required
               aonicoring and testing.
    
                    Nuabers (1) and (3) are similar; che discinccion Is
               that in number (3) no owner/operator can be identified or
               located initially, whereas in nuaber (1) the owner/operator is
               identified but unable or unwilling to conduce the required
               activities.
    
                    In nuabers (1),  (2) and (3) the important consideration
               is whether Che owner/operator will conduct the required activi-
               ties in a aanner satisfactory to £?A, i.e..  in a timely aanner
               and in a aanner technical17 consistent with EPA requirements.
               Subsection (d)  is intended to allow EPA to conduc: the aor.itoriig,
               testing, analysis or reporting itself or to authorize the State
               or other third parties to. p«rfom the required activities if
               delay or inadequate performance will result frco relying on the
               owner/operator.
    
                    Once EPA or some other authorized person has performed
               •onitoring. testing,  analysis or reporting pursuant to S3013(d),
               an Order nay be issued to require reimbursement of the costs.
               The Order for Reimbursement should be issued to the pres.ent
               owner or operator or the most recent previous owner or operator
               who could reasonably be expectej to have actual knowledge of
               the hazardous waste.   An example of an Order for Reimbursement
               is attached as Appendix C.
    
                    Note that subsection (d)(2) prohibits an Order for
               Reimbursement if the results obtained confirm the results of
               an Order issued under subsection (a) and (b).  Our interpre-
               tation is that this provision prohibits seeking reimbursement
               in circumstance (2) above, where the Agency acted because of
               information leading to the belief that the results from the
               owner/operator tests were inaccurate or unreliable, and our
               subsequent tests, in fact, confirm the owner/operator test
               results.
    
               ENFORCEMENT OF THE ORDER
    
               Section 3013 (e).  ENFORCEMENT.
    
                        "The Administrator may commence a civil
                         action against any person who fails or            v
                         refuses to comply with any order issued
                         under this section.  Such action shall be
    RCRA  Compliance/Enforcement
    6-20
    Guidance Manual 1984
    

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    Chapter Six	                       Exhibit  6-2
                                            - 13 -
    
    
                         brought in the United States district
                         court in which the defendant it located,
                         resides, or is doing business.   Such court
                         shall have Jurisdiction to require compliance
                         with such order and to assess a civil penalty
                         cot to exceed S5.000 for each day during
                         which such failure or refusal occurs."
    
                    This subsection authorizes bringing  a civil action to
               require compliance with any Order issued  under Section 3013 and
               to assess a civil penalty of not to exceed $5.000 for each day
               of noncoapliance with the Order.  This authority includes
               commencement of a civil action to enforce an Order issued under
               Section 3013(d)(l) for reimbursement of costs incurred by EPA
               or other authorized person who conducts the aonitoring, testing,
               or analysis in lieu of an owner/operator.
    
                    Any referral of a civil action under Section 3013(e)
               should follow the format used for other civil actions.
    
               DEVELOPMENT AMD PRESERVATION OF THE ADMINISTRATIVE RECORD
    
                    We attempt to emphasize throughout this memorandum the
               importance of obtaining the information required by the statute
               prior to the issuance of the Order.  Equally important is the
               establishment and preservation of a record where the information
               and all documents relevant to the reimbursement or enforcement
               proceedings described herein should be kept,  since the Order
               may eventually be reviewed by a court, and EPA must have a
               complete record of the information which  formed the basij for
               its decisions and documentation of the opportunity afforded
               the respondents to confer.  The acknowledgement letter is an
               important part of the documentation.
    
                    The Region should encourage communications with the
               respondent and his representatives to be  in writing insofar
               as possible.  Written records of communication should be made
               of all telephone conservations with rhe respondent and a record
               should be made of any conference •eld with respondents in
               accordance with this guidance.
    
                    In the event EPA should reject any objections,  defenses
               or contentions of the respondent,  or modify the respondent's
               proposal for monitoring,  testing,  analysis and reporting
               without the respondent's agreement. E?A should set forth the'
               reasons for such rejection or modification and furnish those
               reasons in writing to the respondent.
    
               Attachments
    RCRA Compliance/Enforcement            6-21                Guidance Manual  1984
    

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    Chapter  Six	Exhibit  6-3
    
    
                  Issuance of Final Revised  Guidance on the Use and
                           Issuance  of Administrative Orders
                               Under Section  7003 of RCRA
                         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    
                                    WAJMINOTON, O.C. Z04«0
                                        SEP 2 1 S64
               SUBJECT:  Issuance  of  Final Revised Guidance on the Us*  and
                         Issuance  of  Adainiscracivt Orders Under Section  7003
                         of Che Resource Conservation and Recovery Ace  (3C&A)
    
               FROM:     Courtney  M.  Priced ^TlTO-i .-f-XX.
                         Assistant AdministTa*tor^for Enforcement
                           and Coapliance Monitaring
                         Lee M.  Thomas    
    -------
    Chapter  Six	_____                    Exhibit  6-3
               Regional Counsels.  Regions I-X
               Regional Administrators. Regions I-X.
               Hazardous Waste Coordinators, Regions  I-X
               RCftA Branch Chiefs,  Regions I-X'
    RCRA CoBpliance/Enforceaent          6*23               Guidance Manual  1984
    

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    Chapter  Six	                 Exhibit 6-3
                       FINAL REVISES GUIDANCE .".EIIORANDUM ON THE
                       USE AND ISSUANCE OF ASMNISTRATIVE ORDERS
                   UNDER SECTION 7302 0? THE RESOURCE CONSERVATION
                               AND RECOVERY A£7  (RCRA)
                                  SepeitDbcr  26,  1984
    RCRA Compliance/Enforcement           6*24               Guidance Manual  198A
    

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    Chapter Six	                  Exhibit 6-3
                                     TABLE OF CONTENTS
    
               1.     INTRODUCTION   	  1
               II.    SCOPE  OF RCRA  $7003  	  2
                     A.  Evidence  	  2
                     B.  What Conscicutis Handling. Storage,
                         Treaosent or Disposal 	  3
                     C.  Necessity of Existence of laointnc and
                         Substantial Endangernent	  3
                     D.  Persona to  Whom an Order May be Issued	  5
                     E.  Notice  to Affected States	6
               III.   SELECTING  ENFORCEMENT OPTION 	  6
                     A.  Administrative Order or Civil Referral 	  7
                     B.  Use of RCRA or CERCLA 	  7
                     C.  Deciding  to Use a (7003 Order 	  9
                        1.  Respondent's Financial Status	  9
                        2.  Nxnber of Respondents Subject to  the  Order..  10
                            i) Coordination of Response Action 	  10
                           ii) Supervision 	  11
                        3.  Specificity of the Necessary Response
                             Action 	  11
               IV.    ELEMENTS OF AN ORDER 	  12
               V.     CONFERENCE PROCEDURES 	  14
               VI.    MODIFICATION.  REVOCATION. OR STAY OF THE ORDER	  15
               VII.   NEGOTIATION OF ADWNI STRATIVE ORDERS 	  15
               VIII.  DELEGATIONS OF AUTHORITY 	  15
               APPENDIX.  STATE NOTIFICATION LETTER 	  17
    RCRA Conpllance/Enforceaent           6-25               Guidance Manual 1984
    

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    Chapter Six	              Exhibit 6-3
               I.  INTRODUCTION
    
                    RCRA'i administrative  tnforccment  authority  Is an
               important component of the  Agency's  overall  hazardous waste
               enforcement program.  The effectiveness of EPA's  enforcesenc
               program will be demonstrated aa respondents  imp lenient sice
               remedies in compliance with administrative orders,  the Agency
               pursues enforceaent action* vigorously  against  respondents
               who fail to osply with such orders,  and  the Agency defends
               aggressively Judicial challenges to  orders.
    
                    Section 7003 of the Resource Conservation  and  Recovery
               Act (RCRA)  provides EPA with a broad and  powerful enforceaent
               tool that may be used to abate imminent hazards that are  caused
               by the handling, storage, treasent,  transportation or disposal
               of solid waste or hazardous waste.   Under S7G03.  the Ac'ainis-
               trator aay seek iajunctive  relief in tne  appropriate United
               States District Court or. after notice  to the affected State,
               take appropriate action "including,  but not  liaited to.  issuing
               such orders as aay be necessary to  protect public health  or  the
               environment."
    
                    The $7003 administrative order  authority provides strong
               incentives for respondents  to expeditioualy  undertake response
               actions deemed necessary by EPA to  ensure protection  to  public
               health or the environment.   Therefore,  the Regions  are urged  to
               consider the use of unilaterat-RCRA  17003 orders  in appropriate
               caaes wherever it is necessary to compel  response action.  It
               is essential that the RCRA enforceaent  program  combines  both
               administrative and judicial enforceaent authorities to ensure
               protection of health and the environment  from  the improper
               handling of hazardous waste.
    
                    The following guidance has been prepared  to  assist  the
               Regional offices in developing and Issuing administrative
               orders pursuant to J7003.  It supersedes  the earlier Agency
               guidance issued on September 11, 1981,  by Douglas Mad-til Ian.
               Acting Director, Office of Waste Programs Enforcement, entitled
               "Issuance of Administrative Orders Under  17003  of the Resource
               Conservation and Recovery Act."
    
                    Since $7003 is similar in scope to S106 of the
               Comprehensive Environmental Response. Compensation, and
               Liability Act.  the  reader should consult the guidance
               issued on September 8. 1983. entitled "Guidance Memorandum on
               Use or Issuance of Administrative Orders  Under  S106(a) of
    RCRA Compliance/Enforcement           6-26                Guidance Manual 1984
    

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    Chapter Six
                                            - 2 -
    
    
               CERCIA."  A  fuller ereacmene of thi following areas, comaon co
               boch 7003 and  106, 1> found In ehe (1983) 106 Guidance:
               Necessity for  Determination Based on Evidence; Necessity for
               Accual or Threatened Release; Necasaicy chac Release or Thriac
               of Ralaaat be  from a facility (applicable in the caae of joinc
               7003 * 106 ordera); and Necessity for Existence of Imminent
               and Subacancial Endangerment.  Where joinc ordera under $$7003
               and 106 are  iaaued. the Regions ahould adhere to the require-
               ments aec out  In boch guidance aeaoranda.  The reader ahould
               alao conault Che CERCLA 1106 guidance, "Issuance of Administra-
               eive Ordera  for Immediate Removal Acciona" (Lee Thomaa, OSWER,
               February 21, 1984).
    
                    It ahould be noted chat the ^authorization of RCRA by
               Congrcaa may affect acme aspects of $7003, regarding the
               parcicipaeion of the public in the settlement of administrative
               orders and liability for paac activiciea.  If KCRA is amenoed,
               aupplemental guidance will be provided aa appropriate.
    
               II. SCOPE OF RCRA $7003 */
    
                    In order Co iasue a $7003 order, the Administrator muse
               possess evidence "that the handling, storage, treatment, trans-
               portation or disposal of any solid waste or hazardous waste
               may present  an imminent and substantial cndangermenc co health
               or che environment" (42 U.S.C. 16973).  Additionally, $7003
               requires that the Administrator provide notice to the affected
               Scace prior  to issuance of the order.  Each of these require-
               ments is discussed in furcher decail below.
    
                    A. Evidence
    
                    Because Che recipient of a $7003 order may seek
               administrative or judicial review of the order, the Region
               muse have all Che evidence necessary co demonstrate chac che
               */     Note: che terms "hazardous waste" and "solid waste"
               ~      TrTRCRA $7003 refer co che statutory definitions,
                      $$1004(5) and 1004(27). of RCiU and noc co Che regulatory
               provisions promulgated pursuane to $3001 and codified ac  40 CFR
               Pare 261.  These regulatory provisions are meant for application
               only in the Subtitle C regulatory program.  As long aa a  waste
               meets che $1004 definition of solid or hazardous waste,  it  neec
               not be listed in Part 261 or satisfy one of the characteristics
               specified in Pare 261.
    RCRA Cospllance/Enforcement           6-27               Guidance Manual 1984
    

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    inapcer  aix	              Ex HI 0 It  tr-3
                                            - 3 -
    
    
               statutory criteria havt bten satisfied at the time the  order
               is issued.   The evidence must establish that  the  responaent
               has handled,  treated,  stored, transported or  disposed of  a
               solid or hazardous waste,  and that such activity  has resulted
               in a condition that may present an imminent ana substantial
               endangerment  co health or the environment.  Necessary evidence
               may be documentary, testimonial, or physical  and  may be
               obtained from a variety of sources including  inspections,
               investigations, or requests for production ox documents or
               other data  pursuant to 3C3A 553007, 3013 or CERCLA 1104.  The
               evidence oust be sufficiently probative and reliable to
               enable a reasonable person to conclude that issuance of an
               order is appropriate.   For example, an unsubstantiateo  citizen's
               coaplaint would nonsally not be sufficient to justify issuance
               of an order.   If that  complaint were supported by corroborating
               evidence, however, such as laboratory analyses, the conplaint
               and corroboration couio normally be considered a  suiiicient
               basis for issuance of  the'order.
    
                    3.  What Constitutes Handling. Storage,  Treatment.
               Transportation or Disposal.
    
                    It is  undisputed  that $7003 may be utilized  to enjoin
               present conduct.  Thus, persons who are presently handling,
               storing, treating, transporting or disposing  of solid or
               hazardous wastes arc potential recipients of  a 17003 order.
               Whether S7003 may be used to abate present imminent hazards
               caused by past disposal practices is an issue chat has  been
               litigated repeatedly.   The Agency has consistently maintained
               that 57003  applies to  such past disposal.  Although there has
               been some disagreement by courts considering  this question,
               the prevailing view as expressed in U.S. v. Waste Industries,
               etal.. No.  83-1320 (4th Cir..  May »7~I?84) clearly supports
               the Agency's  position.  Thus, Regional Offices should consider
               the issuance  of S7003  orders at presently inactive facilities,
               provided such issuance is consistent with this guidance.
    
                    C.  Necessity for Existence of Imminent  and  Substantial
                        Endangerment.
    
                    Evidence possessed to support the issuance of a RCRA
               S7003 order  must show  that the "handling,  storage.,  treatment,
               transportation or disposal of any solid or hazardous waste may
               present an  imminent and substantial endangerment  to health or
               the environment."  The words "may present" indicate that
               Congress established a standard of proof that does not  require
               a certainty.   The evidence need not demonstrate that an imrai-
    RCRA Compliance/Enforcement            6-28                Guidance Manual 1984
    

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    Chapter Six.	Exhibit 6-3
                                            - 4 -
                ntnc  and  substantial  endangerment to public health or thi
                environment dtfinittly txists.  Instead, an order nay be issued
                if  there  is sound  reason to believe that such an endangernitnt
                may exist.
    
                     Evidence of actual hara is not required.  As the Court
                stated  in Ethyl Corp. v. EPA, construing an endangerment
                provision in the Clean Air Act:
    
                         The meaning of "endanger" is not disputed.
                         Case Law and dictionary definition agree that
                         endanger scans sonething less than actual hara.
                         When one is endangered, hara is threatened; no
                         actual injury need ever occur.  541 F.2d 1 at
                         13, footnotes ooitted, original eaphasis, D.C.
                         Cir.. cert, denied 426 U.S. 941 (1976).
    
                     It should also be noted that while the risk of harm must
                be  imminent in order  for the Agency to act under 17003, the
                harm  itself need not be.  (See the legislative history to the
                "imminent and substantial endangerment" provision of $1431 of
                the Safe Drinking Water Act, H. Rpt. 93*1183 at 3536.)  For
                example, EPA could act if there exists a likelihood that
                contaminants might be introduced into a water supply which
                could cause damage after a p«rioo of latency.  One must juage
                the risk or likelihood of the Kara by examining the factual
                circuastances, including, but not limited to:  1) nature and
                amount of the hazardous substance; 2) the potential for
                exposure of humans or the environment to the substance; and
                3) the known or suspected effect of the substance on humans
                or that part of the environment subject to exposure to the
                substance.
    
                     Legal analyses of the concept of imminent and substantial
                endangeroent can also be found in Reserve Mining Co. v. EPA.
                546 F.2d 492 (8th Cir. 1975);' U.S. v. Vertae Chesieal Co..  ec
                al.,  489 F.Supp. 870  (E.D. ArkT"T780): U.S. v. Solvents
                Recovery Service. 496 F.Supp. 1127 (D. Conn. 19»0); Uf5. v.
                Miowest Soivent~Recevery. 484 F.Supp. 138 (N.D. Ind. i960);
                U.S.  v. Diamond ShaarocK Corp.. 17 E.R. 1329. (N.D. Ohio
                TUTTC); U.S. v. Price. 668 F.-d 204 (3rd Cir. 1982); and. U.S.
                v. ReilTyTar and Cheaical Corp.. 546 F.Supp. 1100 (D. Minn.
                19817!
    
                     The nature of the endangeratent and the basis for the
                finding of an imminent and substantial endangerment must b« sec
                forth in  the order.   It' sampling and analysis data are being
                relied upon, a suamary of such aata should ordinarily b« sec
    RCRA  Compliance/Enforcement            6-29               Guidance Manual  1984.
    

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    Chapter Six	   	                    Exhibit 6-3
                                            - 5 -
    
    
               forth in the ord«r.  Ac any rate, all evidence supporting the
               finding of any imminent and substantial endangeraent in the
               order nust be compiled into a single, concise document consti-
               tuting the endangeraent assessment.  [An tndangerment Assessnent
               Guidance is presently being prepared by the Office of Solid
               Waste and Emergency Response.]
    
                    D.  Persons to Vhon an Order May be Issued.
    
                    Section 7003 provides that an order may be Issued to "any
               person" who contributed to conduct or lack of conduct that may
               present ar. i==inenc hasari.  The ter: encaspasses, if applicable,
               the present owners end operators of a site, including an inactive
               site.  Similarly, the Cera includes persons whose ongoing
               conduct Day result in the risk of an iiamvnenc hazard.  Whether
               previous owners of a sice or past non-negligent off-site
               5*r.*rscoTS are also severed by $7003 is an issue  that has
               received much judicial attention.
    
                    Although the ease law is unsettled, two courts have upheld
               E?A's position that previous owners of a site oay be held
               liable under 17003.  U.S. v. Price. 688 F.2d 204;  U.S.  v.
               Rei 1 Iv Tar and CheaicITTo.. 3tT7. Supp. 1100.  TKuTT if
               otherwise appropriate, Regions should consider issuing 17003
               orders to previous owners of a—site, even an inactive one, in
               cases where the previous owner's conduce may have caused or
               contributed to conditions at Che sice which oay present an
               imminent hazard and substantial endangeraent.
    
                    To date, che courts have been unwilling eo Include past,
               non-negligenc. off-site generators within che scope of 17003.
               See,  U.S. v. Wade. 546 F. Supp. 785 (E.D. Pa., 1982);  U.S. v.
               fEPACCOTT79 FTTupp. 821 (W.D. Mo., 1984) [U.S.  filed cross-
               appeal June 29, 1984; decision pending).  Ic Is recommended,
               therefore, that Che Regional Offices utilize CERCLA J106 to
               order such generators co perform necessary cleanup work.  While
               an early decision was unfavorable, che majority and all recent
               decisions have held that $106 does apply: U.S. v.  Wade. 546 F.
               Supp. 785 [held J106 is not applicable CO pasc, non-negligent
               generators]; U.S. v. Price. 577 F. Supp. 1103 (D.  N.J., 1983)
               [held 1106 does apply co pasc, non-negligenc generators); U.S.
               v. NEPACCO. 579 F. Supp. 823 [held J106 does apply co pascT
               non-negligenc generators]; U.S. v. Conservation Chemical Company.
               Ho. 82-0983-CV-W-5, Order (WTIT Mo.. Feb. 3, 1984) iheld S106
               doea apply to past, non-negligent generators]; and U.S. v.
               A&F Materials, et al.. No. 83-3122 (S.D. 111., Jan.~Tff, 1984)
               [held 5106 does apply to past, non-negligent generators].  The
               Agency's position is that $106 does apply to past, non-negligent,
               off-site generators.
    RCRA Compliance/Enforcement            6-30                Guidance Manual  1984
    

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    Chapter Six	          Exhibit  6-3
                                            - 6 -
    
    
                    1.  Hotiee  to Affected States
    
                    Finally. be.fore an Order may bt Issued,  cht "afftcttd
               state" must bt givtn nocici of Cht Agency's intention co issue
               Cht Ordtr.
    
                    Tht Agency  la not held to a statutory period of eiat for
               notice.  Normally, written notification to the state should
               prtctdt fedtral  action by at least one week.   Circunstances
               may arise, however, where a acre rapid response at a site is
               necessary.  In such cases,  issuance of an order may follow an
               abbreviated notice period or even a telephone call madt by EPA
               to the director  of the agency responsible for environmental
               protection in the affected state.  Written confirmation must
               follow such telephone notice.   In some cases,  the draft order
               may be subject to a State's Freedom of Inforaation Act prior to
               issuance of the  order by tPA.   If this situation ariaes,  the
               Agency may delay notice to the affected statt(s) until (no
               lattr than) one  week before issuance of the final order.
               11 is unlikely that a state FOIA request would result in early
               disclosure of the draft order during that short period of
               time.
    
                    As indicated above,- the notification should be directed to
               the director of  the state agency having Jurisdiction over
               hazardous waste  matters.   A suggested form for a notification
               letter is attached to this memorandum n the  Appendix.  This
               form also provides the format for oral notice.
    
                    An "affected state"  is a state in which  the conduct or
               condition which say present an imminent and substantial
               cndangeroenc is occurring or is located,  and  in which the
               response activity required by the proposed order will be  taken.
               In some cases,  this may involve core than one state,  such as
               where a facility is located near the border of a state and the
               hazardous wastes have migrated from the facility into another
               state(s).  In those cases,  all of the states  in which the
               hazardous wastes are found and in which response activity m..y
               be performed pursuant to  the order should be  notified.  CNr;«:
               Consult the following guidance for more information on t  a
               State/Federal relationship: "Implementing the State/Fecieral
               Relationship in  Enforcement:  State/Federal Enforcement
               Agreements",  OECM, June 6,  1984.)
    
               III.   SELECTING  ENFORCEMENT OPTION
    
                    Although 17003 administrative orders are a potent
               enforcement tool, there will be instances when it will be more
               appropriate for  the Agency to  use other enforcement options,
               including a RCRA S7003 judicial action, a CERC.A S106 adminis-
    RCRA Compliance/Enforcement           6-31               Guidance Manual 1984
    

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    Chapter Six	     	        Exhibit 6-3
                                            - 7  -
               trative  or  judicial  action, or  a  Superfund financed cleanup of
               a hazardous wasee  lite.  Tht Regions should examine each of
               these  options  and  select the option which will result in the
               most efficient use of  limited enforcement resources and
               Superfund monies while  still quickly abating the threat.
               (See also,  the memorandum on "Issuance of Administrative Orders
               for  Immediate  Removal Action",  supra, for additional guidance
               on selecting enforcement options.)
    
                   A.  Ada inistrarive  Order or Civil Referral
    
                   Initially,  the  Agency must determine whether it is more
               appropriate to use adainistrative or judicial enforcement
               action;  each has definite advantages and drawbacks.  An admin-
               istrative orier has  the benefit of being a relatively speedy
               method of enforcement.  The Agency can issue an order that
               establishes a  timetable 'for compliance,  unilaterally or on
               consent,  in a  short  period of time.  A judicial action,  on the
               other  hand,  is usually  a more time-consuming process.  The
               referral of i  case to  the Ocparcnent of Justice and filing of
               a complaint may delay  the initiation of remedial activities.
               Even though a  judicial  action can be time-consuming,  any
               resulting judicial order or consent decree can be more quickly
               enforced in the event of noncompliance since the Court already
               has  jurisdiction of  the matter, and an additional referral
               to DOJ generally is  not needed..
    
                    Because AO's  can be issued quickly, the general rule is
               that an  administrative order, whether issued unilaterally or
               on consent,  is appropriate absent some indication that the
               respondent  will not  comply with its terms.  Where •noncompliance
               is anticipated, Regions should  prepare a civil referral.
               Should immediate remedial action  be necessary. EPA should
               consider requesting  a preliminary injunction or temporary
               restraining order.
    
                     B. Use of RCRA or CEECLA
    
                   Once a decision has been made to proceed administratively.
               the  Region  must  then decide whether an order ur .er RCRA J7003
               or CERC.A S106 is  more  appropriate.  Upon examination, both
               statutory provisions appear quite similar.  When faced with
               the  need to abate  an imminent hazard, the Agency can often use
               a joint  order  if the RCRA "hazardous waste" is also a CERCLA
               "hazardous  substance."   [Consult  the CERCLA $106 (1983) guidance
               for  a  discussion of  the issuance  of joint orders.)
    RCRA Compliance/Enforcement           6-32                Guidance Manual  1984
    

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    Chapter Six	•	Exhibit  6-3
                                            - 8 •
    
    
                    There art chrte situations where a joint order is  not
               available, more specifically,  where a RCRA S7003 order  can be
               used but a CERCLA $106 order cannot.
    
                    The first situation would result when the Imminent hazard
               is caused by a RCRA "solid waste" but not a "hazardous  waste."
               RCRA 17003 orders can be used  to abate Imminent hazards pre-
               sented by "solid wastes" (RCRA 11004(27)) as well as "hazardous
               wastes" (RCRA S1004(5)).  By contrast, CERCLA 1106  orders  are
               United to abating imminent hazards presented by "hazardous
               substances" (CERCLA i 101(14),  CERCLA J101(U)(c) defines
               "hazardous substances" as including "hazardous wastes"  under
               RCRA $3001, but not RCRA "solid wastes" under $1004(27).
               Therefore, when an imainent hazard is caused by a RCRA  "solid
               waste", which is not a RCRA "hazardous wastes" (or CERCLA
               hazardous substance) RCRA $7003 orders can be issued, whereas
               CERCLA 1106>orders cannot.
    
                    The second situation would result when a waste meets  the
               definition of "hazardous wastes" under $1004(5) of RCRA but does
               not qualify as a "hazardous waste" under 40 CFR Part 261.   The
               tern "hazardous waste" in $7003 refers to the broad statutory
               definition ($1004 (5)) of RCRA and not to the more narrow
               regulatory provisions promulgated pursuant to $3001 and codi-
               fied at 40 CFR Part 261,  These regulatory provisions are
               aeant  to be applied only in tKe Subtitle C regulatory program.
               Because the CERCLA definition  of "hazardous substances" ($101
               (14))  includes "hazardous wastes" under RCRA $3001 but  not
               under RCRA $1004(5). a CERCLA  $106 order could not be
               used in the above situation.
    
                    The third situation would result when the waste involved
               is excluded from regulation under CERCLA because it is  a petro-
               leum product.  [See. CERCLA $101(14) for the definition of
               "hazardous substances").  Gasoline is not a listed "hazardous
               waste" or commercial chemical  product under RCRA regulations
               (uO CrR 261 Subpart D).  Residues of a spill or a. release  of
               gasoline are not automatically listed as hazardous.  Even  so.
               gasoline leaking from underground sto. 
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    Chapter Six	  	                       Exhibit 6-3
                                            •  9  -
                    C.   Deciding to  Use  a  57003  Order
    
                    This section discusses  factors  co  consider when deciding
               whether  or not to use *  17003  order.  These  factors include:
    
                    - financial status of  Che respondents
                    - number of potential  respondents
                    • specificity of the necessary  response action
    
                    As  a general proposition,  a  {7003  order should be  issued
               only in  those situations  in  which compliance with  the terras of
               the  order is  feasible,  i.e., where the  respondents are  in a
               position co per fora the oraered response actions -nthin speci-
               fied tin* periods.  This  does  not aean  that  EPA must sake a
               pre-issuance  determination  that respondents  will comply with
               an order,  but ?a:her  that compliance  is practicable.  If the
               Agency anticipates  non-cpnpliance with  an order it is
               considering issuing,  the  use of the  order mechanism nay serve
               only to  delay initiation  of  an injunctive action under  S70C3
               or,  if appropriate, a Fund-Financed  response.  In addition,
               it Is an inefficient  use  of  resources.
    
                    1)  Respondent's  Financial Status
    
                    Before an administrative -order  requiring remedial work
               is issued,  the Agency should assess,  to the extent possible,
               whether  the responsible party  has sufficient financial resources
               to comply with the  order.  This assessment is only a factor to
               be considered in the  decision  to  issue  an order when the neces-
               sary information is available.  Financial information may be
               available from several sources:
    
                    *   Agency files  may. contain  financial information
                       collected as  part of the  identification of
                       parties responsible  for the  hazards  posed
                       by sites on the National  Priorities List.
    
                    *   The Securities and  Ex^-nge  Commission (SEC)
                       requires publicly tra .cd  companies to submit
                       detailed financial  statements.  This information
                       is publicly available.  (Consult NFIC's manual
                       entitled "Identifying  Responsible Parties" for
                       additional  information on obtaining SEC
                       files.)
    RCRA Compliance/Enforcement           6-34                Guidance Manual  1984
    

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    Chapter Six	           Exhibit 6-3
                                            - 10 -
    
    
                    *  Responsible parties may submit financial
                       information to the Agency during discussions
                       or negotiations held prior to the issuance  of
                       an Order.
    
                    *  The Agency collects financial data as part  of
                       the RCRA permitting process.
    
                    In addition. NEIC can provide further financial  information
               on respondents who are publicly held  companies or companies
               previously the subject of EPA action(s).
    
                    2) Number of Respondents Subject to the  Order
    
                    The Agency's position that $7003 provides for  Joint  and
               several liability has been challenged by U.S. v.  Stringfellew,
               No. 83-2501 - MM. (C.O. Cal..  April 5.  19ffI7T  That decision
               held that neither RCRA $7003 nor CERO.A $106  provides  for joint
               and several liability.  In the case of a multiple party adminis-
               trative order, the Stringfellow Court stated  that "...such
               would have to state with specificity  the steps to be  taken and
               the party to take them.  If steps were ordered taken jointly,
               the Court would have to prescribe the participation of each
               defendant".  (Slip.  op. at 12.)
    
                    At present,  the Agency has* not changed its position  on
               $7003 and joint and several liability.   Even  so,  the Stringfellow
               decision may affect future $7003 orders issued to multiple
               respondents without an allocation of  individual responsibilities.
    
                    Some factors to consider before  issuing  a RCRA $7003 order
               tc multiple parties are as follows:
    
                         i)   Coordination of Response  Action
    
                         An order issued to  multiple respondents who are
               jointly and severally liable  generally^will not allocate
               individual clean  up responsibilities. *J  Instead,  the order
               will require the  sao*  .esponse action "to be conducted by  each
               responsible party.   Multiple  parties  must organize  and coordi-
               nate their response to ensure compliance with the order's
               requirements.   Thus,  compliance  with  orders may depend upon
               group agreement on each member's share of the response cose.
               In a large group  of responsible  parties,  it may be  difficult
               for the group to  develop a consensus  on individual  liability
               and perform response activities  as quickly as necessary to
                  •/ However,  the Agency may issue  an  order  to  a  respondent
                    requiring a response to a discrete,  separable  aspect of the
               hazard at a site,  notwithstanding the existence  of  other
               responsibile parties or other less divisible  problem  areas.
    RCRA  Compliance/Enforcement           6-35                Guidance .Manual 1984
    

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    Chapter Six	       Exhibit 6-3
                                            - 11 -
               abate imminent hazard conditions at a site.   Accordingly,
               issuing Orders to all responsible parties  may noc  be  appro-
               priate where there are a large number of parties  who  are
               unlikely to agree on a concerted response.   Instead,  the Agency
               will pursue Judicial reaedies or consider  issuing  Orders  to  a
               selected subset of responsible parties.
    
                    Even in situations where Orders are issued to a  large
               number of parties. Agency policy,  which  should be  reflected  in
               the cera s of the Order, is that each Respondent is individually
               liable for coopliance with the Orcer's requirements.
    
                         it)
                         After an order is issued,  the Agency conducts
               compliance monitoring at- the site to  ensure  that responsible
               parties cssply vi:h the 'tens of :he  oriar.   Al"cu;^  r.o
               specific number of responsible parties can be considered  ideal,
               it is clear that the Agency's oversight responsibility is most
               effective when there are a liaited nusber of responsible  parties
               or a single contractor (hired by the  responsible parties) doing
               the work at the sice.
    
                    3) Specificity of the Necessary  Response Action
    
                         In order to minimize" the potential for confusion
               between Respondents and the Agency concerning the required
               response action,  orders should be used in situations where  the
               nature of the reauired response  action is relatively precise.
               Orders are particularly useful to require chat respondents
               cease any ongoing activity that  is causing the ianinent hazard.
               When remedial work is required,  an order may best be used  to
               mandate discrete casks such as the erecting  of fences  to  secure
               the site and the removal of drummed wastes.   Orders  can be
               inappropriate in cases where the abatement will be very complex,
               cost more than several million dollars, or take more than  a few
               years to complete.  These are offered as factors to  consider
               and not criteria to be rigidly followed.
    
                    A RCRA 17003 order, or succession of orders,  may  be  used
               to require response action throughout the entire cleanup  pro-
               cess.  It is entirely appropriate to  use S7003 to order
               immediate saapling or testing programs as part of a  broader
               set of proposed response activities.   For example, where  it
               is important to respond immediately to an imminent hazard,  a
               S7003 order may be used to determine  the full extent of site
               contamination and to require immediate security and  clean  up
               action in response to hazards that have already been established,
    RCRA Compliance/Enforcement           6-36               Guidance Manual 1984
    

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    Chapter Six	Exhibit 6*3
                                            - 12 -
    
    
               Monitoring, sampling,  analysis end reporting can, of  course.
               also b« required through us* of a RCRA 13013 order.   A  13013
               order may b« issued absent a finding of an imainent hazard
               although it does require a finding that the  presence  of. or
               release from a site of,  hazardous waste "nay present  a  substan-
               tial hazard to human health or the environment."  RCRA  S3013(a)
               (1)4(2).  [See. Issuance of Administrative Orders Under Section
               3013 of RCRJT~issued September 1984.]
    
               IV.  ELEMENTS OF AN ORDER
    
                    All 17003 orders  should contain the following elements:
    
                    ' a statement of  the statutory basis for the order.
    
                    * a statement of  the agency's authority to  issue
                      the order and the liability that may  be incurred
                      if the respondent fails to comply.
    
                    * a specific determination supported by findings
                      or reference to a separate endangerment assessment
                      that states that che Agency has determined  that  an
                      imminent and substantial endangerment may exist.
                      Such an explicit finding is necessary even  if  the
                      Respondent is willing to consent to the issuance
                      of the order.  Should SPA need to seek judicial
                      enforcement of  the order,  even one issued on
                      consent, it should be able to demonstrate that it
                      acted within its statutory authority  in issuing  the
                      order.
    
                    ' the company is  a facility as defined  under CERCLA
                      1101(9).  (Note:  required only when the A.O. is  also
                      based on CERCd t!06).
    
                    * a finding that  the substances are solid or
                      hazardous wastes.
    
                    * statements as to the liability of the
                      respondents, i.e..  that the responsible party
                      is or has been  engaged in the activities
                      described in $7003.
    
                    * a compliance schedule that clearly sets forth
                      the tasks to be performed, the time frames  for
                      performance, and quality and performance  stan-
                      dards for tasks.   Such specificity enhances  the
    RCRA Compliance/Enforcement           6-37               Guidance Manual 1984
    

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    Chapter Six	                  	'                     Exhibit  6-3
                    operator't tbllicy to comply and the Agency'i
                    ability co enforce che order judicially should
                    ehe respondent violate its terns.  A specific
                    order provides the court with Agency articulated
                    standards by which to judge the respondent's
                    noncompliance.
    
                  * EPA authority to be on site during work, obtain
                    split saaples and other information generated,
                    and stop work if an emergency arises.
    
                  * sampling and analytical procedures.
    
                  * health and safety procedures.
    
                  * notice to affected States.  A statement should
                    be included, where possible, that notice to the
                    affected sta:e(s) Ira been given.
    
                  ' an opportunity to confer if the order is
                    unilateral.  Agency policy is to offer
                    recipients of $7003 orders an opportunity to
                    confer with the Agency concerning the appro-
                    priateness of its terns and its applicability
                    to the recipient.  (Noe«: The administrative record
                    containing CFA's evidence should be available for che
                    recipient to examine.) The conference will help EPA
                    ensure that it has based its order on complete
                    and accurate infornation and ensure that both
                    sides have a common understanding of the work
                    to be performed.  Another benefit to such a
                    conference is that it may reveal the unwilling-
                    ness of the respondents co cake necessary action.
                    In this case, EPA can be better prepared co
                    cake necessary remedial action itself or seek
                    judicial remedies. (See also. Conference Procedures,
                    infra p. 14).
    
                  * an effective date of the order.  Each order
                    should specify the date on which it becomes
                    effective.  Because a J7003 order by definition
                    addresses an imminent hazard, it should ordinarily
                    become effective within 10-14 days of receipt by
                    che respondenc.  In emergency slcuacions che
                    effective dace may be shortened to as little as
                    48 hours.  Any situation that requires an
    RCRA Compliance/Enforcement            6-38                Guidance Manual  1984
    

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    Chapter Six	Exhibit 6-3
                                            - 14 -
    
    
                      affirmative response In less chin 48 hours should
                      be addressed undir $104 of CERCLA •• 4 fund-
                      financed emergency removal.  [Set: Issuance of
                      Administrative Ordtrs for Immediate Removal Actions,
                      suprs. p. 2 (discussion of tht timing of A.O.'s).]
    
                    * indemnification of EPA.  Tht order should exempt tht
                      Agency froa liability for damages, even if the damages
                      occurred pursuant to an EPA enforced order.
    
                    * a public comment period for consent orders.
    
                    * a civil penalties section for unilateral orders
                      and a stipulated penalties section for consent
                      orders.
    
                    * EPA authority to'take additional enforcement
                      action if the respondent does not comply with
                      the terms of this order.
    
               V. CONFERENCE PROCEDURES
    
                    The conference will normally be held at the appropriate
               •EPA Regional office and will be. presided over by the Regional
               Administrator's deslgnee.  However,  other arrangements mey be
               agreed to for the sake of convenience to the parties.  At any
               time after the issuance of the order and particularly at the
               conference, EPA should be prepared to provide the Respondent
               with information sufficient to explain the basis for the
               Order and to promote constructive discussions.  (NOTE; The
               admini.'.tratlve record containing EPA's evidence must be avail-
               able for the recipient to examine.)   The Respondent will have
               the opportunity to ask questions and present its views through
               legal counsel or technical advisors.  The schedule and agenda
               for the conference will be lerft to the discretion of the £?A
               official leading the conference, as  long as the Respondent
               receives a reasonable opportunity to address relevant issues.
    
                    Following the conference, a written summary of the
               proceeding must be prepared and signed by the Agency official
               who presided over the conference.  The written statement should
               contain:
    
                    * A stattmtnt of the date(s) and attendees of any
                      conference(s) held; and
    
                    * A description of the major inquiries made and
                      views offered by the Respondent contesting the
                      terms of the order.
    RCRA Compliance/Enforcement            6-39                Guidance Manual 1984
    

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    Chapter Six	          Exhibit 6-3
                                            - 15 -
    
    
                    Thi presiding official oust prepare a statement  which
               addresses Che significant argxnencs raised by ehe  respondent,
               recommends how ehe order should be modified,  if  at all,
               and contains the reasons for the changes or revisions.
    
               VI. MOCinCATIONS. REVOCATION. OR STAY OF THE ORDER
    
                    Based on a review of the file (on which the oroer  was
               based) any probative information or arg'jnent made  by  the
               respondent (following receipt of the order)  or by  recommen-
               dation of :ha presiding official, the issuing official  say
               sodify or revoke she order.  Any modification to the  order
               ausc be coranur.icated co the respondent as pare of  a copy of  a
               written statement containing the elements listed in Section  V
               above.  The original should be kept in the Agency  files along
               with the evidence suaporsir.jt :he order,  copies of  -.Tirran
               documents offered in re'nuttal by the respondent  during  the
               conference,  and a copy of the request for a conference.
    
                    The issuing official .nay also stay ehe effective date of
               the order if the conference process could not be completed
               within the specified tiae period.
    
               VII. NEGOTIATION OF ADMINISTRATIVE ORDERS
    
                    Although EPA recognizes that recipients of  unilateral*
               17003 orders should be given an opportunity to confer,  the
               Agency will not engage in lengthy negotiations with recipients
               after an order is Issued.  Limited negotiations, before or
               after issuance of an order, are useful in that they give EPA-
               an opportunity eo assess ehe likelihood chat the respondents
               will perform ehe tasks sec forth in ehe order.  If negotiations
               look unpromising EPA mus't decide whether eo issue  an  order
               unilaterally, refer a S7003 civil action or iniciace  a  Fund-
               Financed response (if ehis opeion exiscs).   EPA  should  noc
               compromise ics auehorley to secure necessary aceion simply to
               oocain an order on consent.
    
                    Should negotiations result in an agreement, ehe  resulting
               order must contain all of the requirements set forth  above;
               these requirements are necessary eo ensure chat  ehe order is
               enforceable should ehe respondent decide noc co  comply.  The
               sane requirements apply even if ehe respondent has voluntarily
               begun cleanup efforts.   In general, Che negotiated order
               should set out specifically what each respondent must do to
               comply.
    RCRA Compliance/Enforcement           6-40               Guidance Manual 1984
    

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    Chapter Six
                                  Exhibit 6-3
                                            - 16
               VIII.  DELEGATIONS OF AUTHORITY
    
                    At chc present tint,  the authority to  Issue RCRA  17003
               administrative orders Is delegated to the Assistant Adminis-
               trator for Solid Waste and Emergency Response  and  the  Regional
               Adainistrators.  The Regional Administrator aust consult with
               the Assistant Adainistrator for Enforcement and Coapliance
               Monitoring or the designee and aust obtain  the advance
               concurrence of the Assistant Administrator  for Solid Waste
               and Emergency Response or delegatee.  The Assistant Adainls-
               trator for the Office of Solid Waste and Emergency Response's
               authority to Issue J7003 orders and to give advance concurrence
               has been redelegated to the Director,  Office of Waste  Programs
               Enforcement.
    
                    The RCRA Delegations of Authority are  being revised and
               should be Issued in the near future.  The draft S7003  delegations
               which are found in Chapter 8. Section 22 of the draft  delegations
               manual are divided into three parts:  determination of imminent
               and substantial endangerment; abatement through a  unilateral
               order; and, abatement through an order on consent.
    
                    According to the draft delegations,  the Regional
               Administrator (RA) must -consult with the Office of Regional
               Counsel before issuance of either a RORA  $7003 unilateral
               order or order on consent.  Regarding Headquarters, the RA
               must consult with the Office of Solid Waste and Emergency
               Response (OSUER) prior to issuing RCRA $7003 orders tc deter-
               mine an Imminent and substantial endangerment  and  to abate
               such an endangerment through a unilateral order.   The  RA is
               not required to consult with the Offices cf Enforcement and
               Compliance Monitoring (OECH) or che Office  of  General  Counsel
               (OCC) to issue the above.   For orders on  consent under {7003,
               the RA must obtain advance concurrence of OSWER or a waiver of
               such concurrence by advance raemoranduro,  before issuance of
               such an order.  The RA does not have to consult with or procure
               concurrence from OECM or OCC prior to issuance of  $7003 Orders
               on consent.  Consultation with OECM and OCC is recommended  in
               relatively new areas such as the use of a RCRA $7003 order  for
               ur.-^rground gas tanks and where there are other novel  legal
               issues involved.
    RCRA  Compliance/Enforcement
    6-41
    Guidance Manual 1984
    

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    Chapter Six	Exhibit 6-3
                                            -  17  -
    
    
                                           Appendix
    
                                  STATE HOT: n CAT: ON LETTER
                  .--
               RETURN RECEIPT REQUESTED
    
               Mr. S. Jones
               Seaee Agency
               Division of Er.vironaental Control
    
               Dear Mr. Jones:
    
                    Enclosed for your information  is  a  copy of an order
               [scamped "DP-A-I"  ar.d "CONFIDENTIAL" ]  that  tne Agency  incends
               to issue on or after   Jdate]       to  the XYZ Corcpar.y, pur-
               suant to Section  7003 oi~ ;r.e  Resource  Conservation and Recovery
               Act (42 U.S.C.  $6973} .   The  order  requires certain activities
               to be taken at the company's  site  located  at  [location] .
               Please refer to  the enclosed  copy of  the proposed order for
               the specific actions required of  the  company and the  tiae
               within which «uch actions oust  be  taken.   If you have any
               coaoents or questions concerning  the order, please contact
               f.EPA official) at  [office]  .
    
                                         Sincerely yours,
                                         Assistant Administrator for
                                           Solid Waste  and  Emergency Response
    
                                                    [or]
    
                                         Regional  Administrator
    
                                              (or  their designees]
    
    
               Enclosure
    
               ec:  Honorable J.  Smith,  Governor
    RCRA Compliance/Enforcement           6-42                Guidance Manual  1984
    

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    Chapter Six	   Exhibit 6-4
    
    
                            Staple Botice of Deficiency
                                   UNITED STATES
                          ENVIRONMENTAL PROTECTION AGENCY
                                    Region III
                              6th and Walnut Streets
                         Philadelphia, Pennsylvania  19106.
    
      CERTIFIED MAIL
      RETURN RECEIPT REQUESTED
    
      Ms. K. L. Volk
      Plant Manager
      Firetog Industries, Inc.
      36 Sunshine Drive
      Clark, VA  24077
    
      RE:  Notice of Deficiency
           EPA Identification No.:  -PAD TWF 93-071-3232
           Firetog Industries, Inc.
    
      Dear Ms. Volk:
    
      The Environmental Protection Agency (EPA) has conducted  an  initial
      review of your permit application submitted on December  22,  1982, for
      the hazardous waste management facility referenced above.   This  phase
      of our review was conducted to determine whether information submitted
      in your application was complete in accordance with the  requirements of
      40 C.F.R. Parts 122 and 264.   Upon determining that the  application is
      complete, EPA will conduct a thorough technical review.
    
      After reviewing the submitted -material, we have determined  that  the ap-
      plication is deficient and have specified additional information needed
      to make it complete.  A copy of our connents Is enclosed.   It is our
      intent that these comments assist you in the preparation of a complete
      Part B application.
    
      If you have any questions regarding the review of your application or
      if you desire a meeting with EPA, please contact Bill  Dunn  of my staff
      at the above address or at (215) 771-3232.  All correspondence should
      reference the EPA Identification Number.
      Sincerely,
      Jane Doe
      Director, Hazardous Waste Management Division
    
      Enclosure
    RCRA Compliance/Enforcement          6-43              Guidance Manual 1984
    

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    Chapter Six	Exhibits
    RCRA Conroliance/Enforcerent6-44Guid-ace Manual 1984
    

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    Chapter .Seven
    
    Administrative Enforcement Actions:
    Civil  Penalty  Proceedings
    Chapter Contents	Page
    
    
    1  Introduction                                                7-1
    
       Authority              . •'                                  7-1
       Consolidated Rules  of Practice (CROP)                     .     7-2
    
    
    2  Elements of a Violation: Administrative                       7-5
    
       Exhibit 7-1:  Sample Regulatory Elements                       7-6
    
    
    3  Complaint Preparation and Filing                              7-7
    
       Civil Penalty Complaint Criteria                              7-7
       Delegated Authority                                         7-7
       RCRA Penalty Assessment Considerations                         7-9
       Complaint Preparation                                        7-9
       Elements of the Complaint                                    7-11
       Service of the Complaint                                     7-13'
       Filing the Complaint                                         7-15
       Exhibit 7-2:  Sample Complaint                                7-16
       Exhibit 7-3:  Sample Cover Letter                             7-21
       Exhibit 7-4:  Model Affidavit of Service                       7-22
    
    
    4  Prehearing Stage                                            7-23
    
       Intervenors and Amici Curiae       .                           7-23
       Agency Files                                                7-24
       Prohibition of Ex_ Parte Discussion                             7-26
       Answer to the Complaint                                      7-27
       Prehearing Motions                                           7-29
       Default Orders                                              7~31
       Settlement                                                 7-33
       Prehearing Conference                                        7-35
       Motion for Accelerated Decision and Dismissal                   7-38
    RCRA Compliance/Enforcement            7-i          Guidance Manual 1984
    

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     Chapter  Seven	Contents
    
    
     5  Hearing Stage                                                       7-41
    
       Notice of Hearing  and Venue                                         7-41
       Presentation of Evidence                                            7-42
       Preponderance of Evidence                                           7-42
       Default Orders and Accelerated  Decisions                            7-43
       Hearing Rules of Evidence                                           7-43
       Subpoenas and Summoning Witnesses                                   7-46
       Objections and Rulings                                              7-47
       Offers of Proof                                                     7-48
       Transcript of Hearing                                               7-48
       Proposed Findings, Conclusions, and Orders                          7-49
       Motion To Reopen Hearing                                            7-50
       Appeals of Interlocutory Orders or Rulings                          7-51
       Exhibit 7-5:  Model Default Order                                   7-53
       Exhibit 7-6:  Model Consent Agreenent  and Final Order               7-55
    
    
     6  Post-Hearing Stage                                                  7-57
    
       Appeal of Initial Decision                                          7-57
       Final Order                                                         7-59
       Payment of Penalty                                                  7-60
    RCRA Compliance/Enforcement              7-ii          Guidance Manual 1984
    

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    Chapter Seven
    1     Introduction
    This chapter discusses the procedures for issuing compliance orders  and  for
    litigating administratively assessed civil penalties under Section 3008  of
    RCRA.  Both actions are discussed together because the Agency normally
    issues such compliance orders in conjunction with the initiation  of  Section
    3008 civil penalty proceedings, and because both actions  are governed by
    the Consolidated Rules of Practice (see below).   (For a discussion on the
    procedures for issuing other types of administrative orders,  see  Chapter
    Six, "Administrative /Actions:  Notices of Violations and  Administrative
    Orders.")
    Authority
    Under Section 3008(a) of RCRA, EPA may issue an administrative  order  to any
    person who violates any requirement of Subtitle C of  RCRA.   Such  an order
    may require compliance either immediately or within a specified time
    period.*  Furthermore, pursuant to Section 3008(a)(3) of  the Act,  the
    Agency may assess an administrative civil penalty of  not  more than $25,000
    for each day of continued noncompliance with such an  order.   As an
    alternative to issuing an administrative order, the Agency may  commence a
    civil judicial action in a U.S. district court for appropriate  injunctive
    relief (see Chapter Eight, "Judicial Enforcement:   Civil  Actions," for a
    discussion on the use of injunctions).
    
    In addition to issuing an administrative order or seeking injunctive
    relief, the Agency may impose [pursuant to Section 3008(g) of RCRA] a civil
    penalty of up to $25,000 per day of violation on any  person  who fails to
    comply with any requirement of Subtitle C of the Act-  Such  penalty may be
    imposed regardless of whether a notice of violation or a  compliance order
       As originally written, Section 3008(a) of RCRA required  that  a  notice of
       violation be issued and that a 30-day grace period for complying  be
       given before the EPA could issue an administrative order-   The  1980 RCRA
       amendments eliminated the notice and grace period requirements.
    RCRA Compliance/Enforcement              7-1           Guidance Manual 1984
    

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    Chapter Seven	Introduction
    previously had been served on the violator.*  Therefore,  if  a  violation  is
    ongoing, the Agency may pursue simultaneously a  Section  3008(g)  civil
    penalty action and a Section 3008(a) compliance  order, which if  violated
    would subject the violator to additional civil penalties  under Section
    3008(a)(3).
    Consolidated Rules of Practice
    All adjudicatory proceedings relating to the issuance of RCRA Section  3008
    compliance orders and administrative assessment of civil penalties are
    governed by the Consolidated Rules of Practice Governing the Administrative
    Assessment of Civil Penalties and the Revocation or Suspension  of Permits
    [CROP, promulgated on April 9, 1980, 45 Fed. Reg. 24,360, amend. 45 Fed.
    Reg. 79,808 (December 2, 1980), codified at 40 C.F.R. §22.01 et seq.].
    Proceedings relating to the suspension or revocation of RCRA permits,  how-
    ever, arc not governed by the CROP but rather by EPA's consolidated permit
    regulations, 40 C.F.R. Part 124.  Such proceedings, therefore, are not dis-
    cussed in this chapter.
    Regional Versus National Actions
    
    The preappellate stage of most administrative proceedings generally occurs
    at the regional level.  Therefore, the CROP discuss  these stages only  in
    the context of regional actions.  However, if the violation is not Region-
    specific, the entire administrative proceeding may take place at the
    national level.
    
    In order to apply to national actions, the CROP require the following  sub-
    stitutions to Agency officials:
    
           	Regional	         	National	
    
           Regional Hearing Cleric          Hearing Clerk
    
           Regional Administrator          Administrator
    
           Regional Judicial               Judicial Officer
           Officer
       Prior to the 1980 RCRA amendments, EPA could impose a civil penalty only
       for violations of the terms of a compliance order.  The 1980 RCRA amend-
       ments, however, created the additional civil penalty authority contained
       in Section 3008(g).
    RCRA Compliance/Enforcement              7-2           Guidance Manual  1984
    

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    Chapter Seven 	                Introduction
    Substitutions between  regional  and  national  officials  may also occur if an
    official is disqualified  pursuant  to  the  CROP.   22.04(d)*  Certain filing
    and service requirements  specified  by the CROP  are  also altered if the
    actions are conducted  at  the  national level.  For example,  the Regional
    Hearing Clerk must  forward a  record of  the proceeding  to the Hearing Clerk
    when an initial decision  is issued  in a regional proceeding.  Such a
    transfer is unnecessary if the  proceeding was conducted at  the national
    level.  22.27(a)
       Note:  Bold type citations in  the  text correspond  to  the  sections  of  the
       CROP found at Part 22 Title 40 of  the U.S. Code  of Federal Regulations.
    RCRA Compliance/Enforcement              7-3           Guidance  Manual  1984
    

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     Chapter Seven	Introduction
    RCRA Compliance/Enforcement              7-4           Guidance Manual 1984
    

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    Chapter Seven
    2    Elements  of  a  Violation:   Administrative
     In order to establish a prima facie administrative case  relating to the
     issuance of a compliance order or assessment of a civil  penalty under
     Section 3008 of RCRA, the Agency must  establish in the adjudicatory hearing
     (and by proper evidence) each element  of  the violation charged.  In RCRA
     this involves establishing that the person charged with  the violation is
     subject to a requirement of the. Act and that the person  violated such
     requirement.  Since  there are many statutory and regulatory requirements
     imposed by RCRA,*  the evidence that the Agency must introduce during the
     hearing will depend  on those statutory and regulatory provisions that were
     violated.   Exhibit 7-1, for example, lists a RCRA regulatory requirement,
     the elements that  constitute a violation  of that requirement, and the means
     by which the elements are established.
       See Chapter One,  "Overview," for a brief description of RCRA's statutory
       and regulatory requirements.
     RCRA Compliance/Enforcement              7-5           Guidance Manual 1984
    

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    Chapter Seven
                                                              Exhibit  7-1
                             Sople Regulatory Elements
                                 Section 265.90(a)
    
      The owner or operator of a surface impoundment, landfill, or  land-
      treatment facility that is used to manage hazardous waste must  implement
      a groundwater monitoring program.
          ELEMENTS OF THE VIOLATION
                                          ESTABLISHING THE VIOLATION
       1. Respondent is an owner or
          operator of a surface
          impoundment, landfill, or
          land-treatment facility for
          management of hazardous
          waste.
      2.
      3.
      4.
      6.
    Respondent has achieved
    interim status;
    
               ££.
    
    Respondent's facility is one
    to which the Agency has
    determined that the interim
    status standards apply.
    
    Respondent's facility is not
    a surface impoundment
    qualifying for a waiver under
    Section 265.90(e).
    Respondent has not made
    demonstrations adequate  for a
    waiver under Section
    265.90(c).
          Respondent has not  installed,
          operated, or maintained an
          alternate groundwater moni-
          toring system pursuant to
          Section 265.90(d).
    Respondent has not  implemented
    a capable groundwater  monitor-
    ing program, meeting the
    requirements of  Section 265.91.
                                     1.  Review Section  3010
                                         notifications,  information
                                         received in Part A, or other
                                         sources to determine  status.
    2.  Determine whether interim
        status has been achieved after
        a search of regional files.
        Make determination after
        consideration of appropriate
        factors (e.g.,  public
        interest)•
    3.  Review respondent's submis-
        sions to determine whether
        respondent has made
        demonstrations adequate to
        qualify for a waiver.
    
    4.  Review respondent's submis-
        sions to determine whether
        respondent has made
        demonstrations adequate to
        qualify for a waiver.
    
    5.  Review respondent's submis-
        sions and applicable
        inspection reports to
        determine whether the
        alternate system meets the
        requirements of Section
        265.90(d).
    
    6.  Consult inspection reports
        for documentation of
        inadequacy.
    RCRA Compliance/Enforcement
                                    7-6
                    Guidance Manual  1984
    

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    Chapter Seven
    3    Complaint  Preparation  and Filing
    Civil Penalty Complaint  Criteria
    As was previously discussed in Chapcer Five,  a Section 3008 compliance
    order should be considered as the appropriate enforcement response to most
    RCRA violations.   In  general, such orders will include civil administrative
    penalties•
    Delegated Authority
    Regional Administrator
    
    The Regional Administrator  is to exercise all  powers and duties as pre-
    scribed or delegated under  the Act and the CROP.   In addition, the Regional
    Administrator* has  been delegated the authority  to:
    
         •  Issue administrative complaints [an administrative complaint is
            equivalent  to a RCRA Section 3008 compliance order; see CROP
            §22.37(e)(2), 22.01(a)(4)];
    
         •  Evaluate the appropriateness of civil  penalties; and
    
         •  Negotiate and sign  consent agreements  memorializing settlements
            between the Agency  and respondent prior  to the alleged violator's
            filing of an answer or failure to file an  answer to a complaint-
    *  The Assistant Administrator for Solid Waste  and Emergency Response may
       also exercise these  authorities in multi-regional  cases or cases of
       national significance.  However, he or she must consult in advance with
       the Assistant Administrator for OECM or his  or her designee and must
       notify any affected  Regional Administrators  or their designees when
       exercising any of  the above authorities.  These authorizations have been
       redelegated to the Division Director level.
    
    
    RCRA Compliance/Enforcement7^7Guidance Manual 1984
    

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    Chapter Seven	Coatplaint Preparation and Filing
    The Regional Administrator, however, must  consult  with  the  Regional
    Counsel's offj.ce before exercising  any  of  the  above  authorities.
    
    In every proceeding, the Regional Administrator  will  rule on all  motions
    filed or made before an answer  to the complaint  is filed.   22.16(c)
    Regional Judicial Officer
    
    A Regional Administrator may delegate  all  or  part  of  his  or  her  authority
    to act in a given proceeding to a Regional Judicial Officer.   Any  such
    delegation is to be performed in accordance with  the  CROP.
    
    A Regional Judicial Officer may exercise any  authority delegated to  him or
    her by the Regional Administrator, or  the  Regional Judicial  Officer  may
    refer any case or motion to the Regional Administrator when  such referral
    is appropriate.  22.04(b)(3)
    Presiding Officer
    
    The Presiding Officer is to conduct a  fair and impartial proceeding,  ensure
    that the facts are fully elicited, adjudicate all  issues,  and  avoid delay.
    The Presiding Officer has  the authority, under 22.04(c),  to:
    
         •  Conduct administrative hearings under these  rules  cf  practice;
    
         •  Rule upon motions, requests, and offers of proof;  dispose  of  proce-
            dural requests; and issue all  necessary orders;
    
         •  Administer oaths and affirmations and take affidavits;
    
         •  Examine witnesses  and receive  documentary  or  other evidence;
    
         •  For good cause, upon motion by a party or  sua sponte  (i.e., upon
            his own motion), order a party or an officer  or agent  thereof  to
            produce testimony, documents,  or other nonprivileged  evidence  and,
            failing the production thereof without good  cause  being  shown,  draw
            adverse inferences against that party;
    
         •  Admit or exclude evidence;
    
         •  Hear and decide questions of facts, law, or  discretion;
    
         •  Require parties to attend conferences for  the settlement or simpli-
            fication of the issues, or the expedition  of  the proceedings;
    
         •  Issue subpoenas authorized by  the Act; and
    
         •  Do all other acts  and take all measures necessary  for  the  main-
            tenance of order and for the efficient, fair, and  impartial adjudi-
            cation of issues arising in proceedings governed by the  CROP.
    RCRA Compliance/Enforcement             7-8            Guidance .Manual  1984
    

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    Chapter Seven	Coaplaint Preparation and Filing
    RCRA Penalty Assessment Considerations	
    
    
    Guidelines for Determining Penalty Amount
    
    Section 3008(g) of RCRA provides EPA with the authority to assess a civil
    penalty of up to $25,000 per day of violation.  Furthermore,  Section
    3008(c) of RCRA indicates that the Agency, in assessing a penalty, should
    take into account the following:
    
         • • The seriousness of the violation; and
    
         •  Any good faith efforts to comply with the applicable  requirements.
    
    Pursuant to the statutory provisions, EPA has established a RCRA civil
    penalty policy for assessing administrative penalties (see Appendix).   The
    penalty calculation system consists of:
    
         •  Determining a base penalty for a particular violation;
    
         •  Adjusting the base penalty for special circumstances;  and
    
         •  Considering the economic benefit of noncompliance where appro-
            priate.
    
    
    Independently Assessible Violations
    
    A separate civil penalty should be assessed for each violation chat results
    from an independent act (or failure to act) by the respondent  and that is
    substantially distinguishable from, any other violation when  it requires  an
    element of proof not needed by the others.  (See, Elements of  a Violation;
    Administrative in Section 2 of this chapter.)  Not every violation that
    appears in a complaint can be separately assessed.  Where a violation
    derives primarily from or merely restates another violation,  a separate
    assessment is not warranted.
    Complaint Preparation
    Because the complaint initiates the administrative adjudicatory hearing
    process and is the focal point for all subsequent proceedings,  the
    complaint must be as complete as possible.  Failure to file a complaint
    that meets the standards and procedures outlined in this chapter may:
    
         •  Cause a delay in the proceedings;
    
         •  Prevent the complainant from being granted a motion for default
            under Section 22.17 of the CROP;
    RCRA Compliance/Enforcement             7-9            Guidance Manual 1984
    

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    Chapter Seven	Complaint Preparation and Filing
         •  Hake"the complainant subject  to adverse  actions  by  other  parties  to
            the proceedings; and
    
         •  Negatively affect the complainant's ability  to carry  the  burden of
            proof.
    
    
    Checklist of Complaint Requirements 22.14(a)*
    
    The following elements are considered necessary  to establish  the  legal
    sufficiency of a civil penalty complaint:
    
         I.  Statesent reciting the section(s) of  the Act authorizing the
             issuance of the complaint  [e.g., RCRA Sections  3008(a)(l);
             3008(g)];
    
         2.  Concise stateaent of the factual basis  for  alleging  the  violation;
    
         3.  Specific reference to .each provision  of the Act  and  to the
             regulations that the respondent is alleged  to have violated;
    
         4.  Statement explaining the proposed penalty;
    
         5.  Proposed amount of civil penalty to be  assessed;
    
         6.  Compliance order requiring corrective actions immediately or
             within a specified period of time;
    
         7.  Notice of respondent's right to request a hearing  on any material
             fact contained in the complaint, on the appropriateness  of  the
             amount of the proposed, penalty, or on the terns  of the compliance
             order;
    
         8.  An attached copy of the Consolidated  Rules  of Practice (CROP);
    
         9.  Notice of opportunity for an informal settlement conference; and
                                   f
        10.  Date and signature with notation of title of a  duly  authorized
             official of the Agency.
    *  The numbers to the left of each of the  following items correspond  to
       numbers in Exhibit 7-2, which shows a sample complaint.  The  numbers  in
       the exhibit identify examples of each kind of information.
    RCRA Compliance/Enforcement             7-10            Guidance  Manual  1984
    

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    Chapter Seven	Complaint  Preparation and Piling
    Elements of the Complaint	'    	
                  •
    
    The discussion under  each  element of  the  complaint gives  the purpose of the
    element and in some cases  the reason  for  its  particular place in the com-
    plaint .
    
    
    Caption
    
         •  Identification of  Respondents  (A).*   Respondents  (i.e.,  those
            against whom  the complaint  is  filed)  are  to  be accurately and
            individually  identified on  the  left side  of  the caption.
    
         •  Docket Number and  Subjects  of  the Complaint  (B).  The docket number
            and matters addressed in the  complaint  are to  be  properly identi-
            fied on the right  side of the  caption.  Docket numbers  are assigned
            by the Regional Hearing Clerk.  The docket number designates the
            Region involved (in Roman numerals),  the  year, and  the  case number
            (e.g., Docket Number:  .RCRA-VI-83-9).   The docket number must be
            accurately reflected in the caption,  because it is  the  identifying
            number for all subsequent documents filed in the  proceedings.
    
    
    Jurisdictional Authority (C)
    
    The complaint must contain a statement  of Jurisdictional  authority that
    informs the Presiding Officer and the  respondent  of  the statutory authority
    under which the complaint  is issued.  This statement should be  in the
    beginning of the complaint and should  be  as specific and  precise as
    possible.
    22.14(a)(l)
    Factual Allegations (D)
    
    In this section of the complaint,  the specific  facts of  a  particular  viola-
    tion are tied to the statute, rule, regulation,  permit condition,  and/or
    order that allegedly has been violated.
    
    The goal of this section is to  infora the Presiding Officer  adequately  of
    the alleged violations and to inform the respondent of the charges  so that
    an adequate response can be prepared.
       The letters in parentheses  to  the  right of  each  element  correspond  to
       the letters in Exhibit 7-2.
    RCKA Compliance/Enforcement             7-11            Guidance  Manual  1984
    

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    Chapter Seven	Complaint Preparation and Filing
    In the event chat a complaint contains multiple  violations,  the  discussion
    of each separate count should contain an enumeration  of  the  facts  and  cir-
    cumstances related to that violation.  The  proposed penalty  assessment
    should include an enumeration of the dollar  amount proposed  for  each count
    charged or an indication that a particular  charge bears  no penalty assess-
    ment.  The factual allegations of the complaint, including multiple counts,
    should be separated into paragraphs.
    
    In making factual allegations, the key word  is "concise."  "Conciseness"
    means that all material facts necessary to  establish  the  factual basis for
    each violation are specified, while extraneous or irrelevant information  is
    omitted.  Although the purpose of this section is only to inform the re-
    spondent and Presiding Officer of the facts  upon which the alleged viola-
    tion is based, all relevant facts should be  included  rather  than risk  fail-
    ure to meet the requirements set forth in the CROP.   For  instance,  even
    though the respondent aay have been present  when certain  facts were ascer-
    tained, those facts rust still be included  to infora  the  respondent and the
    Presiding Officer that the complainant's allegations  are  based on  such
    facts.
    22.14(a)(3)
    Citation of Legal Requirements Violated (E)
    
    The citation of the particular provision of  the  statute,  regulation,  rule,
    permit condition, or order that allegedly has been violated must  be  as
    specific as possible.  For example, if the complaint alleges a violation  of
    40 C.F.R. Part 265, the specific subsection  under Part  265 that is  the
    basis of the violation must be cited  [e.g-.  failure  to  maintain a copy of
    the contingency plan at the facility, §265.53(a)J.
    22.14(a)<2)
    Amount of Civil Penalty and Rationale (F, G)
    
    This section of the complaint is intended to:
    
         •  Explain the reason for the proposed penalty  (F) in  a manner  that
            reflects the fact that the Agency has considered  the penalty
            assessment factors specified by Section 3008(c) of  RCRA.  Every de-
            tail of the Agency's reasoning process need  not be  reflected;  how-
            ever, the section should state that the RCRA criteria were con-
            sidered in assessing the penalty; and
    
         •  Identify specifically the proposed penalty amount (G).
            22.14(a)<4)
    RCRA Compliance/Enforcement             7-12           Guidance  Manual  1984
    

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    Chapter Seven	Complaint Preparation and Filing
    Compliance Order  (H)
                                            *
    
    This section of the complaint contains  the  Section 3008(a)  compliance
    order, which sets  forth  the corrective  actions  that the respondent must
    take to come into  compliance with  the Act and  the  time period for achieving
    such compliance.
    
    
    Right To Request a Hearing (I)
    
    The respondent must be informed  of  the  right  to  request a hearing con-
    cerning any material  fact contained in  the  complaint,  the appropriateness
    of the amount of  the  proposed penalty,  or the  terms of the  compliance
    order1.  The respondent should be referred to a  copy of the  CROP,  which is
    attached to the complaint, for information  concerning  the request for a
    hearing and the consequences of  failing to  request a hearing.
    22.U(a)(6)
    Notice of Opportunity for an Informal  Settlement  Conference  (J)
    
    The Agency encourages all parties against whom  a  civil  penalty proceeding
    has been initiated to pursue the possibility of settlement through  informal
    conferences with the Agency.  Therefore, the respondent should be informed
    that, regardless of whether a hearing  is requested, a request for informal
    settlement conference may be made.  The respondent  should be cautioned,
    however, that a request for an informal conference  does not  stay the
    running of the statutory 30-day -time period for requesting a hearing  and
    filing an answer.
    Signature Block (K)
    
    The complaint must be dated and signed  (with notation  of  title)  by  a duly
    authorized official of  the Agency.
    Service of the Complaint
    The respondent  is served with a copy of  the  complaint  in  either  of  the
    following manners:
    22.05(b)
    
         •  Personal Service.  The complaint and accompanying documents  are
            left with the respondent or an authorized  representative; or
    
         •  Service by Certified Mail, Return Receipt  Requested.  The complaint
            and accompanying documents are mailed  to the respondent  or  an
            authorized representative.
    RCRA Compliance/Enforcement             7-13           Guidance  Manual 1984
    

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    Chapter Seven	Complaint  Preparation and Filing
    Personal Service
                                          t
    For personal service on an individual ac  a  business  address,  the  complaint
    should be left with the respondent or a person who is  in  charge of  the
    office, such as an office manager, or a person who is  responsible for  the
    respondent's administrative affairs,  such as a personal secretary.
    
    For personal service on a corporation, company,  or association, the
    complaint should be left with an officer, partner, managing  or general
    agent, or any other person authorized by  appointment or by federal  or  state
    law to receive service of process.
    
    For personal service on a named individual  at a  residential  address, the
    complaint should be left with any person  of suitable age  and  discretion who
    resides there.
    Service by Mail
    
    If the complaint is addressed to an individual  person,  it  should  be mailed
    to the last known business address by certified  mail,  return  receipt
    requested.
    
    If the complaint is addressed to a corporation,  company, or association,  it
    should be mailed, return receipt requested,  to  the  last known address of  an
    officer, partner, managing or general agent, or  any other  person  authorized
    by appointment or by federal or state law  to receive  service  of process.
    
    The return receipt establishes that the complaint was  received on a
    particular date.
    
    The receipt should be attached to the original  complaint,  which is retained
    by the Agency.  If no return receipt is obtained, another  letter  should  be
    sent.  If no receipt is again obtained, personal service may  be necessary.
    
    
    Service Upon U.S. Government Officials or  Agencies
    
    Service upon an officer or agency of the United  States must be made by
    delivering a copy of the complaint to the  officer or  agency,  or in the
    manner prescribed by applicable regulations.  If the  agency is a  corpora-
    tion, service may be either personal or by certified  mail  directed to an
    officer, partner, managing or general agent, or  any other  person  authorized
    by appointment or law to receive service of process.
    Service on State or Local Government Entities or Officials
    
    Service upon a state or local unit of government, or a  state  or  local
    officer, agency, department, corporation, or other  instrumentality must
    RCRA Compliance/Enforcement             7-14           Guidance Manual  1984
    

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    Chapter Seven	''	Complaint Preparation and Filing
    either be made In the manner prescribed,by state  law or upon  the chief
    executive officjer of the governmental unit or the state or local officer,
    22.05(b)(l)(iv)
    Certificates of Service
    
    Proof of service must be made either by a properly executed affidavit of
    service (Exhibit 7-4) for personal service, or by a properly executed
    return receipt, for service by mail.  A certificate of service must be
    filed with the original complaint.
    22.05(b)(l)(v)
    Filing the Complaint
    The original and one copy of the complaint (with proof of service) must be
    filed with the Regional Hearing Clerk.
    22.05(a)(l)
    RCRA Compliance/Enforceaent             7-15           Guidance Manual 1984
    

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    Chapter Seven	Exhibit 7-2
    
    
                                  Sample Complaint
                                   UNITED STATES
                          ENVIRONMENTAL PROTECTION AGENCY
                              BEFORE THE ADMINISTRATOR
       In re:.      (A)              )       Docket No.  RCRA-VII-84-19      (B)
                                    )
                                    )
       Firetog Industries, Inc.     )                COMPLAINT,
       36 Sunshine Drive            )            COMPLIANCE ORDER,
       Clark, MO  64117             )                   AND
                                    )          NOTICE '.)f OPPORTUNITY
               Respondent           )               FOR HEARING
     (1)                             COMPLAINT
                                                                          (C)
    
       This complaint, compliance order, and notice of opportunity for
       hearing is issued pursuant to the authority vested in the Adninistra-
       tor of the United States Environmental Protection Agency by Sections
       3008(a)(l) and 3008(g) of the Solid Waste Disposal Act as amended by
       the Resource Conservation and Recovery Act of 1976,  as amended, 42
       U.S.C. §6901 et seq. (hereinafter referred to as "the Act" or
       "RCRA").  The complainant in this action is the Regional Administra-
       tor, United States Environmental Protection Agency (EPA), Region
       VII.  The respondent in this action is Firetog Industries, Inc.
    
     (2)                        Allegations or Counts                     (D)
    
       This is to notify you that there is reason to believe respondent is
       in violation of Section 3005(a) of RCRA, 42 U.S.C. §6924(a) and the
       regulations found at 40 C.F.R. §265.90.  The complainant alleges that
       the violations occurred in the following manner:
    
                                       Count I
       1.  Respondent owns and operates a hazardous waste management facility
           located in Clark, Missouri.
    
       2.  On or about September 5,  1980, respondent notified EPA,  pursuant
           to Section 3010(a) of RCRA that it generated hazardous waste
           identified by the numbers F003, K044, P081,  U002,  U013,  U069,
           U105, U106, U122, U123,  and U154, as listed  in 40 C.F.R.
           §261.32.  The Notification of Hazardous Waste Activity was
           amended on August 7, 1981 to indicate that respondent treated,
           stored, or disposal of hazardous wastes at its facility.
    RCRA Compliance/Enforcement          7-1fi              Guidance Manual 1984
    

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    Chapter Seven 	Exhibit 7-2
       3.  On or about December  5, 1980,  respondent  submitted to EPA Fart A
           of the EPA Hazardous  Waste Permit  Application.   The Part  A appli-
           cation indicated  that respondent treated,  stored,  or disposed of
           hazardous waste at  the facility.   Section III,  line number 10 of
           the Part A indicated  that Heather  Pond was a surface impoundment
           used for the disposal of hazardous waste.   Section IV,  line num-
           bers 6 and 7 of the Part A indicated  that 9,000 pounds  per year
           of 0002 hazardous waste was  treated by surface  impoundment and
           disposed of by land application.
    
       4;  On or about August 31, 1981, respondent submitted  to EPA  a letter
           requesting various changes be  made to their Part A application.
           One requested change  was to  delete Section III,  line number 10,
           Heather Pond, as  a hazardous waste disposal facility.   Another
           requested change was,  Section  IV,  lines 6 and 7, which stated the
           acid tank mud (D002)  was neutralized  as it was  washed out of the
           tanks and, if hazardous, was stored for off-site disposal.
    
       5.  A letter dated Hay 5,  1983,  from respondent to  the Missouri
           Department of Natural Resources (MDKR) stated,  among other items,
           that the acid tank mud (D002)  was  treated by placing soda ash on
           the ground and pouring the waste on it.   This letter also stated
           that insufficiently treated  acid would be diverted from the acid
           line ditch into Heather Pond where additional chemicals for neu-
           tralization could be  added.
    
       6.  During the EPA and MDNR inspection of September 1,  1983,  Firetog
           representatives stated that  acid tank mud (sludge)  (D002) is
           treated by placing soda ash  on the ground under the acid  tank and
           dumping acid tank mud onto the ground.  Any material leaving the
           treatment site is washed to  the acid  line ditch where it  is dis-
           charged to waters of  the state or  diverted to Heather Pond for
           additional treatment.
    
       7.  Since November 19, 1980, to  date,  respondent has operated a sur-
           face impoundment  for  the treatment, storage,  and disposal of
           hazardous waste.
    
     (3)                                                                    (E)
       8.  Respondent is in  violation of  40 C.F.R. §265.90, which  requires
           that on or before November 19, 1981,  the  owner  or  operator of a
           surface impoundment that is  used to manage hazardous waste must
           have:
    
           (a) implemented a groundwater  monitoring  program capable  of
           determining the facility's impact  on  the  quality of groundwater
           in the uppermost  aquifer underlying the facility,
    
           (b) installed and be  operating and maintaining  a groundwater moni-
           toring system that meets the requirements of 40 C.F.R.  §265.91
           (standards for design and operation of an acceptable monitoring
           system); and
    RCRA Compliance/Enforcement        7-17                 Guidance Manual 1984
    

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    Chapter Seven	                  Exhibit 7-2
           (c) complied with 40 C.F.R. §265.92 (sampling and analysis),
           §265.93 (preparation, evaluation, and response), and §265.94
           (recordkeeping and reporting.)
    
                                      Count 2
      9.   The allegations of paragraphs 1 through 6 are realleged and incor-
           porated herein.
    
     10.   Respondent chemically treated hazardous waste, acid tank mud
           (D002), on the ground in such a manner as to cause a high poten-
           tial for contamination and endangerment of the environment, in-
           cluding the groundwater.
    
     11.   From August 31, 1981, to date, respondent has treated acid tank
           aud (D002) without having a proper permit for that treatment pro-
           cess.
    
     (3)                                                                   (E)
     12.   Respondent is in violation of Section 300S(a) of RCRA, 42 U.S.C.
           §6924(a), in that it operated a hazardous waste treatment system
           without having a proper permit.
    
     (4)                        Proposed Civil Penalty                     (P)
    
       Pursuant to Sections 3008(g) and 3008(c), 42 U.S.C. §§6928(g) and
       6928(c), of RCRA, and based upon the seriousness or the violations
       referred to in paragraphs 8 and 12, the threat of ham to public
       health and the environment, the good faith efforts of the respondent
       to comply with applicable requirements, and in accordance with EPA's
       RCRA penalty policy (attached),"EPA proposes to assess against Flretog
       Industries, Inc., the following annunt:
    
     (5)                               Count 1                             (G)
    
           Failure to implement
           a groundwater
           monitoring program                                   $25,000
    
                                       Count 2
    
           Operation of a hazardous
           waste treatment system
           without a proper permit                              $20,000
    
                Total Proposed Penalty Assessment               $45,000
     (6)                         COMPLIANCE ORDER                          (H)
    
       IT IS HEREBY ORDERED, pursuant to Section 3008(a) of RCRA, 42 U.S.C.
       §6928(2) that Firetog Industries, Inc., take the following corrective
       actions within the time periods specified:
    RCRA Compliance/Enforcement             7-18           Guidance Manual 1984
    

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    Chapter Seven   	    	                Exhibit 7-2
           (a)  Within thirty (30) days of receipt of this order, respondent
           shall implement a groundwater monitoring program for Heather Pond
           that meets all the requirements of 40 C.F.R. Part 265, Subpart F,
           and specifically §265.90, §265.91, and §265.92 and shall submit a
           copy of that program to EPA.
    
           (b)  Within sixty (60) days of receipt of this order, respondent
           shall submit to S?\ the first quarterly report as required by 40
           C.F.R. §265.92(c) and shall submit such reports each quarter
           thereafter.
    
           (c)  Within thirty (30) days of receipt of this order, submit to
           EPA complete closure plan for Heather Pond, and if applicable a
           post-closure plan, both developed in accordance with 40 C.F.R.
           §265, Subpart G.
    
           (d)  Immediately, upon receipt of this order, cease treating acid
           tank mud (D002) on the ground in the manner currently employed and
           further shall not treat the acid tank mud until such time as a
           proper permit is in effect.
    
           (e)  Within thirty (30) days of receipt of this order, submit to
           EPA a complete closure plan for each area utilized, to treat the
           acid tank mud (D002), and if applicable -a post-closure plan, both
           developed in accordance with 40 C.F.R. §265, Subpart G.
    
           (f)  Upon approval by EPA and MDNR, respondent shall proceed to
           implement fully the closure and post-closure (if applicable) plans
           for the acid tank mud treatment areas in accordance with the
           schedules contained therein.
    
      In accordance with Section 3008(a)(3) of RCRA, 42 U.S.C. §6928(a)(3),
      respondent shall be liable for a civil penalty of not more than $25,000
      for dach .lay of noncorapliance with the time frames established in this
      order.
      Notwithstanding any other provision of this order, an
      action may be brought pursuant to Section 7003 of RCRA, 42 U.S.C.
      §69/3, if the EPA finds that the handling, storage, treatment,
      c transportation, or disposal of solid waste or hazardous wastu ai; i:'\e
      facility may present an imminent and substantial endangemusnt to human
      health or the environment.
     (7)                  NOTICE OP OPPORTUNITY FOR HEARING                (I)
    
      In accordance with Section 3008(b) of RCRA, 42 U.S.C. §692S(b), the
      above compliance order shall become final unless respondent files an
      answer and requests a public hearing in writing no later than thirty
      (30) days aft«r service of this complaint, compliance order, and notice
      of opportunity for hearing.
         o	-n=.n-0/?.trforcenent             7-19           Guidance Manual 1984
    

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    Chapter Seveo       .      	______	         Exhibit 7-2
     (8)
    
      A written answer to this complaint,  compliance order,  and notice of
      opportunity for hearing must satisfy the requirements  of the Consoli-
      dated Rules of Practice [(CROP) 40 C.F.R. §22.01 et seq.j a copy of
      which accompanies this complaint.   The answer and request for hearing
      must be filed with the Regional Hearing Clerk, United  States Environ-
      mental Protection Agency,  Region VII,  324 East Eleventh Street,  Kansas
      City, -Missouri 64106.
    
      Respondent's failure to file a written answer and request a hearing
      within thirty (30) days of the filing  of this complaint, compliance
      order, and notice of opportunity for hearing will constitute* binding
      adaission of all allegations contained in the complaint and awaiver of
      respondent's right to  a hearing.  Furthermore, the above- proposed
      penalty will be assessed without further proceedings,  and the respon-
      dent will be so notified.
     (9)                       Settlement Conference                       (J)
    
      The Environmental Protection Agency encourages all parties  against whom
      a civil penalty is proposed to pursue the possibility of settlement as
      a result of informal conferences.   Therefore,  whether or not  a  hearing
      is requested,  respondent may confer informally with the  Agency  to dis-
      cuss the facts of this case and to arrive at settlement. The request
      for an informal conference does not extend the thirty (30)  day  period
      during which a written answer and  request for  a hearing  must  be sub-
      mitted.  To explore the possibility of settlement in this matter, con-
      tact Ms. Lynn Smith, Office of Regional Counsel,  United  States  Environ-
      mental Protection Agency, 324 East Eleventh Street, Kansas  City,
      Missouri 64106; (816) 989-9876.
    
     (10)                                                                  (K)
                                            Jane Doe
                                            Regional Administrator
    
                                            Date:           At:
      Enclosures:   Consolidated Rules of Practice Governing the Administra-
                   tive Assessment of Civil Penalties and Revocation  or  Sus-
                   pension of Permits, 40 C.F.R.  Part 22 (CROP)
    
                   RCRA Civil Penalty Policy (May 8,  1984)
    

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    Chapter Seven
                            Exhibit 7-3
                                Sample Cover Letter
                                   UNITED  STATES
                          ENVIRONMENTAL  PROTECTION  AGENCY
                                     REGION VII
                              324 East Eleventh Street
                            Kansas City, Missouri   64106
      T.K.H. Firetog, President
      Firetog Industries, Inc.
      36 Sunshine Drive
      Clark, Missouri  64117
    
      Dear Mr. Firetog:
    
      As the enclosed complaint, compliance  order,  and  notice  of  opportunity
      for hearing indicates, the United States Environmental Protection
      Agency has initiated an administrative enforcement  proceeding  against
      Firetog Industries, Inc., for violations of  the Resource  Conservation
      and Recovery Act, as amended (RCRA), 42 U.S.C. §6901 et seq.
    
      It is suggested that you carefully  read and  analyze  the complaint,
      compliance order, and notice of opportunity  for hearing and the
      enclosed Consolidated Rules of Practice (40  C.F.R.  §22.01 et seq.).
      This will ensure that you are fully apprised  of the  alternatives
      offered to you in considering the alleged  violations, proposed penalty,
      compliance order, and opportunity for  a hearing.  You will  note  that
      pursuant to 40 C.F.R. §22.37 you have  only thirty (30) days after  the
      filing of the complaint within which to file  an answer to the  enclosed
      complaint, compliance order, -and notice of opportunity for  hearing.
      The answer and request for hearing  must be filed with the Regional
      Hearing Clerk, United States Environmental Protection Agency,  Region
      VII, 324 East Eleventh Street, Kansas  City,  Missouri 64106.  Failure to
      file a timely answer, in writing, will result in a  default  order being
      entered against you for the full amount of the proposed penalty.
    
      The Agency encourages all parties against  whom an administrative
      enforcement proceeding has been initiated  to  pursue  the possibility of
      settlement through informal conferences with  the Agency.  Therefore,
      regardless of whether you request a hearing,  you  are extended  the
      opportunity to request a conference, please write to Ms.  Lynn  Smith,
      Office of Regional Counsel, United  States  Environmental Protection
      Agency, 324 East Eleventh Street, Kansas City, Missouri 64106, or
      telephone Ms. Smith at (816) 989-9876.  Any  discussion you  may have
      with Ms. Smith will not affect the  time period in which you are
      permitted to request a hearing or file an  answer.
    
                                                 Sincerely,
      Enclosures
                                                 Jane Doe
                                                 Regional Administrator
    RCRA Compliance/Enforcement
    7-21
    Guidance Manual 1984
    

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    Chapter Seven	Exhibit  7-4
    
    
                            Model Affidavit of Service
                                AFFIDAVIT OF SERVICE
                              UNITED STATES OF AMERICA
                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      I hereby certify that being a person over 18 years of age,  I served  a
      copy of the within complaint
    
      (check one)  (  ) in person
                   (  ) by registered mail, return receipt requested
                   (  ) by leaving the copy at principal place  of business,
                        which is
                   (  ) (write in other method, such as leaving it at	
                        dwelling, serving registered agent of corporation,
                        etc.)	
    
      on the person named in the complaint on (month, day, and year).
    
    
                                          (Signature of person making service)
    
    
    
                                          (Name of person making service)	
    
    
    
                                          (Title, if any)	
    RCRA Compliance/Enforcement             7-22           Guidance  Manual 1984
    

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    Chapter Seven
    4    Prehearing  Stage
    Incervenors and Amid Curiae
    An individual may make a motion to  become  an  intervenor in any proceeding
    conducted under the CROP.  To intervene,  the  individual's motion must
    reflect the following:
    
         •  The individual has a certain  interest  in the proceeding that is not
            adequately represented by the original parties;
    
         •  The individual's presence will not unduly prolong or otherwise
            prejudice the adjudication  of original parties' rights; and
    
         •  The individual will be affected adversely by a final order.
    
    A motion to become an intervenor is ordinarily made before the first
    prehearing conference.  However, the  motion may be made after that time if
    good cause is shown for the failure to file in a timely manner.  A party
    objecting to the intervention may make an  answer to the motion to intervene
    within 10 days following service of the motion.  Once an individual is
    permitted to intervene, that individual becomes a full party to the
    proceeding.
                                  22.03(a)
    An individual may make a motion to  file  an amicus curiae brief.  The motion
    must identify the interest of the applicant  and the desirability of the
    proposed amicus brief.  If the motion  is granted, the Agency official
    granting the motion specifies the time for filing the brief.  Once the
    motion is granted, the individual,  while not considered a. full party, is
    permitted to file amicus briefs in  all subsequent briefings during the
    proceeding and is served with copies of  all  documents relating to such
    briefings.
    22.11(d)
    RCRA Compliance/Eaforceaent              7-23          Guidance Manual 1984
    

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    Chapter Seven	Prehearing Stage
    Agency Files*
    The Agency must maintain at least  two  files—one  that  is  initiated  by  Che
    Regional Hearing Clerk and one that is initiated  by  the Presiding Officer
    upon assignment to a case.  In addition,  the enforcement  official bringing
    the action should maintain a separate  file, which contains  duplicates  of
    all documents relating to the enforcement proceeding.
    22.05(a)(l), 22.05(a)(2)
    
    Any -file that contains RCRA confidential business information must  be
    maintained in accordance with the  procedures set  forth in the RCRA
    Confidential Business Information  Security Manual.   (See  discussion in
    Chapter Eleven.)
    Files of Regional Hearing Clerk and Presiding Officer
    
    All docuner.ts served in the proceeding must  be  filed with  the  Regional
    Hearing Clerk.  The Regional Hearing Clerk initiates this  file after
    receiving the original and one copy of the complaint and the accompanying
    certificate of service.  All original copies of  filings and communications
    from Agency officials, including those from  the  Presiding  Officer, are  to
    be maintained in the Regional Hearing Clerk's file.
    
    The documents that are filed with  the Regional Hearing Clerk include:
    22.05(a)
    
         •  Original and one copy of the complaint;
    
         •  Originals and copies of certificates of  service;
    
         •  Original filings of any intervenors;
    
         •  Original answer received from the respondent;
    
         •  Original and one copy of rulings, orders, decisions, and  other
            documents that are issued  by the Regional Administrator,  Regional
            Judicial Officer, or Presiding Officer;
            22.06
    
         •  Originals of direct correspondence from  the Presiding  Officer to
            the parties; and
    
         •  Copies of direct correspondence from the parties to the Presiding
            Officer.
       Note:  If the action is initiated at  the  national  instead  of  the
       regional level, certain terms should  be substituted  for  the  terms  set
       forth below.  (See "Regional Versus National Actions"  in Section 1 of
       this chapter.)
    

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    Chapter Seven	   Preheating Stage
    Copies of  the above documents must  be- maintained  in  the  Presiding  Officer's
    file, except.correspondence  from  the  parties jtp_ the  Presiding  Officer.   The
    originals of such correspondence  are  kept by the  Presiding  Officer.
    
    
    Regional Enforcement Case File
    
    The Agency enforcement official initiating a complaint should  maintain  a
    separate file containing duplicates of  all documents  filed  in  the
    proceeding, as well as other enforcement documents relating to the case.
    Documents  in this file include:
    
         •  Copies of all documents filed with the  Regional  Hearing  Clerk or
            Presiding Officer;
    
         •  Any internal EPA documents used in generating the enforcement
            action (e.g., concurrence documents, checklists, etc.);
    
         •  EPA investigative records such  as laboratory reports and copies  of
            business records;
    
         •  Original Penalty Assessment Worksheet(s);
    
         •  All correspondence between the  respondent and other EPA  parties;
            and
    
         •  All correspondence between EPA and other  federal or state  agencies
            (e.g., the Department of Justice).
    
    This file should be retained in the Region for  a  minimum of five years
    after termination of the case, after  which time  it should be transferred  to
    Records Control Center.
    Filing Requirements
    
    A document is considered sufficient for filing if:
    
         •  It contains, on the first page of  the document, a caption  that
            identifies the respondent and the docket number assigned for  the
            proceeding;
            22.05(c)(2)
    
         •  It bears the signature of the filing party, counsel, or other
            representative (except for exhibits); and
            22.05(c)(3)
    
         •  It bears the name, address, and telephone number of the person
            filing the document if it is the initial document filed by  that
            person.  Any changes in this information must be sent  to the
            Hearing Clerk, Presiding Officer, and all other parties to  the
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    Chapter Seven         	Prehearlng Stage
            proceeding.  If  a  party  fails  to  provide  or,  when appropriate,
            amend this information,  the  right  to  notice  and service is waived.
            22.05(c)(4)
    
    The Agency official with jurisdiction  over  the  proceeding may prescribe
    additional requirements  for  the  form of documents.
    22.05(c)(l)
    
    If the applicable requirements are not met, the Agency official receiving
    the filing may refuse  to accept  it until  it is  properly amended.   Permis-
    sion .to amend is granted only upon motion  to  the  Administrator, Regional
    Administrator, or Presiding  Officer  who refused to file the  defective
    document.
    22.05(c)(5)
    
    Also,  any party filing a document after the complaint  has been issued must
    certify that copies of the document  have  been sent to  other  parties,
    appropriate Agency officials, and any  amici curiae.  While the CROP do not
    give explicit sanctions  for  failure  to provide  an appropriate certificate
    of service, failure to serve copies  of documents  on  individuals who have a
    right to notice may delay  the proceeding and, in  some  cases,  may  result in
    an otherwise entirely correct proceeding being  dismissed  by  the Presiding
    Officer or being overturned  on appeal.
    22.05(a)(2)
    Public Access to Documents Filed
    
    Subject to any confidentiality requirements  specified  by  law,  the  documents
    filed in the proceeding must be made available  by  the  Regional Hearing
    Clerk for public inspection during  business  hours.
    22.09(a)
    Prohibition of Ex Parte Discussion
    After a complaint has been issued, certain Agency officials  are  prohibited
    from discussing ex parte (i.e., without notice  to all  parties)  the  merits
    of the proceeding with individuals or  their  representatives  who  have  an
    interest in the proceeding.
    22.08
    
    Although e?c parte discussion about the merits of a proceeding is
    prohibited, if such communication occurs, it is regarded as  argument,  and a
    copy of the £21 parte communication is  served on all other  parties in  the
    proceeding.  Those other parties are then afforded an  opportunity to  reply.
    Failure to comply with these provisions of the  CROP can taint an otherwise
    entirely correct proceeding and may result in its dismissal  by  the
    Presiding Officer or in the action being overturned on appeal.
    

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    Chapter Seven	Preheating Stage
    
    
    The Agency officials  subject  to  ex .parte  prohibitions  are:
                  •
        •   Administrator;
    
        •   Regional Administrator;
    
        •   Judicial Officer;
    
        •   Regional Judicial Officer;
    
        •   Presiding Officer; and
    
        •   Any other person who  is  likely  to advise  these  officials  (e.g.,  the
            Assistant Administrator  for OECM  and the  Assistant  Administrator
            for Solid Waste and Emergency Response).
    
    The Agency officials  listed above are prohibited  from participating  in e*
    parte discussions with the following individuals:
    
         •  An Agency official who performs a prosecutorial or  investigative
            function in the proceeding or a factually related proceeding;
    
         •  Any person outside the Agency who has an  interest in  the  proceed-
            ing ; and
    
         •  Any representative of the persons identified above.
    Answer to the Complaint
    The respondent must respond to-the allegations  in  the  complaint within  30
    days after the filing of  the complaint.  Z2.37(e)(4)   The  response  is ir.
    the form of an answer.  In the answer,  the  respondent  roust adnit, deny, or
    explain each of the factual allegations contained  in the complaint.  Where
    the respondent has no knowledge of the  allegations and makes a statement  to
    that effect, the allegations are considered  denied.  22.15(b)  Failure  to
    adait, deny, or explain any material factual allegation contained in rhe
    complaint constitutes an  admission of that  allegation.
    22.15(d)
    Procedural Considerations
    
    Before the answer is filed, all motions are made  to  the Administrator  or
    Regional Administrator, or  the Judicial Officer or Regional Judicial
    Officer, as appropriate.  After the answer is  filed,  a Presiding  Officer  is
    designated, and all motions are made  to that official.
    22.16(c)
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    Chapter Seven      	Preheating Stage
                                         i
    
    Filing a time*ly answer precludes  the complainant  from seeking a motion for
    default based on the failure  to file a  timely  answer.
    22.17(a)(l)
    
    Filing a timely answer lessens complainant's opportunity  to amend  since,  as
    a matter of right, the complainant may  amend the  complaint  once before the
    answer is filed.  Otherwise,  a motion must  be  made  to  and approved by the
    Presiding Officer.
    22.14(d)
    
    The complainant may withdraw  the  complaint, all or  in  part,  without
    prejudice one time before the answer has been  filed.   After one withdrawal
    before the filing of an answer or after the filing  of  an  answer, the
    complaint may be withdrawn only upon motion granted by the  Presiding
    Officer or Regional Administrator.
    22.14(e)
    Sufficiency of Answer
    
    The answer must xeet the following  requirements:
    
         •  Filing the original of  the  answer with  the Regional  Hearing  Clerk;
            and
    
         •  Complying with the general  filing, service,  and  content  require-
            ments specified by the  CROP.
            22.05
    
    The contents 'of the answer must include the  following:
    
         •  Clear and direct admissions, denials, or explanations  of  each
            factual allegation contained in the  complaint of  which the
            respondent has any knowledge.  If the respondent  has no  knowledge
            of a particular factual allegation and  makes a statement  to  that
            effect, the allegations are considered  denied.   All  allegations
            should be addressed in  some manner;
    
         •  Grounds for defense;
    
         •  Facts that the respondent will put in issue; and
    
         •  Any request for a hearing.
            22.15(b)
    
    
    Evaluation of Answer
    
    Upon receiving a copy of the answer, the complainant should  immediately
    review it for any deficiencies  and  also check with the Regional  Hearing
    Clerk to ensure that the requirements concerning timely  filing and the
    general filing requirements have been met.   Review of the  answer  might also
    

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    Chapter Seven	Prehearing Stage
    
    
    Indicate  that  a motion  to  amend  the  complaint  is  warranted  (e.g..  if
    proposed  penalties  should  be  reduced or  increased).
    
    
    Consequences of an  Insufficient  Answer
    
    If the form requirements specified by Section  22.0S(c)  of  the  CROP are not
    complied  with, the  Regional Hearing  Clerk can  refuse  to file the answer.
    22.05(c)(5)
    
    If the requirements specified  by Section 22.15(b)  of  the CROP  are  not
    complied  with, the  insufficient  answer may be  regarded  as an admission of
    the matter(s)  not sufficiently discussed.
    22.15(d)
    
    If the answer  is not  filed within the time requirement  (30  days),  the
    complainant can seek  a  default order.
    22.l7(a)(l)
    
    
    Assignment of a Presiding  Officer
    
    When an answer is filed, the Regional Hearing  Clerk forwards the complaint,
    the answer, and any other  documents  filed thus far in the proceeding to the
    Chief Administrative  Law Judge who assigns either himself (or  herself)  or
    another Administrative  Law Judge as  Presiding  Officer.   The Presiding
    Officer then obtains  the case  file from  the' Chief Administrative Law Judge
    and notifies the parties of the  assignment.
    22.2l(a)
    Prehearing Motions
    Motions may be made by the parties before  a hearing is convened.  Some
    motions must be made during  the prehearing stage, but most may be made  at
    other stages of the proceeding as well.  Before  the filing of an answer,
    motions are filed with the Regional Administrator.  After the filing of an
    answer, motions are filed with the Presiding Officer.
    22.16(c)
    Written Motions
    
    All motions made during the proceeding, except  those made orally on  the
    record during a hearing must:
    22.05(a)(2), 22.05(b)(2), 22.16(a)
    
         •  Be in writing;
    
         •  Specifically state the grounds or basis  for the motion;
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    Chapter Seven	               Prehearlng Stage
         •  Specifically identify  the action(s)  that  the  motion  seeks;
    
         •  Be accompanied by any  evidence  that  is  being  relied  upon by the
            move at (e.g., affidavits and  legal memoranda);, and
    
         •  Be served upon the parties.
    
    A written motion must also comply with  the general  filing and  service  pro-
    visions of Section 22.05 of  the CROP  (i.e.,  it  must be  properly  signed, be
    accompanied by appropriate certificates of service, and  bear an  appropriate
    docket number).
    
    Because a transcript is required only in a hearing  (although a transcript
    may be used in prehearing conferences at the discretion  of the Presiding
    Officer), most motions made  before  the  hearing  will probably have  to  be in
    writing and coafora with the requirements specified by  Section 22.16(a) of
    the CROP.
    22.15(c)
    Reply to Motion
    
    A party's response to any written motion must be  filed with  the  Regional
    Hearing Clerk within 10 days after service of such motion, except  in  the
    case of a motion for a default order, which specifies a 20-day period  for
    replias.  Like all documents filed in the proceeding, replies to motions
    must bear the docket number and. comply with the filing and service  require-
    ments specified by Section 22.05 of  Che CROP.
    22.16(b), 22.17(a)
    
    If a response is not filed within the time specified by Section  22.07  of
    the CROP, any objection to the motion is considered waived;  and  the motion
    may be granted without further argument.
    22.16(b)
    
    The Administrator, Regional Administrator, and Presiding Officer,  as  appro-
    priate, may set a shorter time than  10 days for the response, and  may  also
    permit oral argument concerning motions.
    22.16(b)
    Examples of Prehearing Motions
    
    The following types of motions may be made during the prehearing stage  of
    the proceeding:
    
         •  Motion for default for failure to file a timely answer;
            22.17(a)(l)
    
         •  Motion to intervene;
            22.11(a)
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    Chapter Seven	Prehearing Stage
    
    
         •  Motion to file an amicus curiae brief;
            22.11W)
    
         •  Motion for default for  failure to comply with a  prehearing  order  of
            the Presiding Officer;
            22.17(a)(2)
    
         •  Motion for default for  failure to appear at a conference  or hearing
            convened by the Presiding Officer pursuant  to Section 22.19 of the
            CROP;
            22.17(a)(3)
    
         •  Motion for consolidation or severance; and
            22.12(a), 22.12(b)
    
         •  Motion for postponement of hearing.
            22.21(c)
    Default Orders
    Default orders may be issued under three circumstances:
    
         •  Against the respondent for failure to file a  timely answer  to  the
            complaint;
            22.17(a)(l)
    
         •  Against a complainant or respondent for failure  to obey a pre-
            hearing or hearing order that has been issued by  the Presiding
            Officer; and
            22.17(a)(2)
    
         •  Against a complainant or respondent for failure  to attend a con-
            ference or hearing without good cause being shown.
            22.17(a)(3)
    
    Motions for default are made either to the Regional Administrator or
    Regional Judicial Officer in the first circumstance, or  to the Presiding
    Officer in the second and third circumstances.
    
    A motion for default may be made by any person who is a  party to the pro-
    ceeding [as defined by Section 22.03(a) of the CROP] at  the time the motion
    is made.  ("Any person" apparently includes intervenors.)  In addition, the
    Presiding Officer is permitted to issue a default order  sua sponte in  the
    latter two default circumstances.
    22.17(a)
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    Chapter Seven	Prehearlng Stage
    
    
    Procedures
    
    The party making a motion  for  default' oust  include  with  the motion a pro-
    posed default* order (see Exhibit  7-5).  The motion  for default  must  be
    served on all parties and  otherwise conform with  the  filing and service
    requirements specified by  Section 22.05 of  the  CROP.
    
    The alleged defaulting party has  20 days  from service of  the motion  for
    default to reply to the motion.   This  time  period is  10  days longer  than
    that generally specified for replies  to motions [Section  22.16(b)  of the
    CROP].
    
    
    Default Order as Initial Decision
    
    A default order constitutes an initial decision of  the proceeding  at the
    time it is issued by the Presiding Officer  (Regional  Administrator or the
    Regional Judicial Officer, if a tiaely answer is not  filed).  As such,  it
    nust aeet the following requiresents:
    22.17(b)
    
         •  Contain findings of fact, conclusions regarding material issues  of
            law or discretion, a recommended  penalty, and a compliance order;
            and
            22.17(c)
    
         •  Be filed with the  Regional Hearing Clerk.
            22.17(b)
    
    The Regional Hearing Clerk must serve copies of the initial decision on all
    parties to the proceeding  and otherwise comply  with Section 22.27  of the
    CROP, which addresses transfer of the proceeding's  record  to the Hearing
    Clerk.  The default order  becomes the final order of  the Administrator
    within 45 days after its service  upon the parties unless  (1)  the default
    order is appealed or (2) the Administrator elects,  sua sponce,  to  review
    the default order.
    Appeal
    
    A default order may first be appealed by a motion to set aside  the default
    order.  Such a motion is made to the Agency official who issued  the  order.
    Any further appeal of the default order must be made directly to  the
    Administrator pursuant to Section 22.30 of the CROP.
    22.17(d), 22.29(a)
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    Chapter Seven	      Prehearing Stage
    Consequences of Final Default Order
                   *
    When the Administrator issues a final order upon default against the
    respondent, the respondent is subject to the following consequences:
    
         •  The respondent has essentially "admitted" to all facts alleged in
            the complaint and the right to a hearing is waived;
    
         •  The compliance order becomes final; and
    
         •  The penalty proposed in the complaint will become due and payable
            within 60 days after the final order is issued.
    
    The admission of factual allegations and waiver of hearing apply only to
    the immediate administrative enforcement proceeding and does not affect any
    other proceedings.  In addition, the 60-day period for payment of the
    penalty begins only after the Administrator has issued a final order upon
    default, not after the Presiding Officer issues the initial default order.
    
    When the Administrator issues a .final order upon default against the
    complainant, the complaint is dismissed with prejudice.  This means that
    the complainant cannot reinstitute an administrative proceeding that is
    based on the allegations contained in the dismissed complaint.
    Settlement
    EPA encourages settlement of an administrative proceeding, if the settle-
    ment is consistent with the provisions and objectives of RCRA and its
    applicable regulations.
    22.18(a)
    Procedures
    
    A settlement conference can be requested at any time. . The parties may con-
    fer on settlement whether or not the respondent has requested a hearing.
    Before an answer is filed and a Presiding Officer is appointed, settlement
    conferences can be convened by consent of the parties.  After a Presiding
    Officer has been appointed, settlement conferences are subject to the
    jurisdiction of the Presiding Officer who may order a prehearing settle-
    ment conference.  As an alternative, the parties may be directed to corres-
    pond with the Presiding Officer concerning settlement.
    22.18, 22.19
    Consent Agreement and Proposed Consent Order
    
    If a settlement is reached by the parties, they must forward a written con-
    sent agreement (see Exhibit 7-6) and a proposed consent order to the
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    Chapter Seven	Prehoring Stage
    Regional Administrator.  In addition,'they must  serve  copies  of  these  docu-
    ments on the Presiding Officer if one  has been appointed.   The  consent
    agreement must contain the following  information before  it  can  be  approved
    by the Regional Administrator:
    22.18(b)
    
         •  The signature of all parties  or their representatives in the  pro-
            ceeding (e.g., complainant, respondent,  and  any  intervenors);
    
         •  A statement in which the respondent  admits  that  the Agency has
            jurisdictional authority to bring the complaint;
    
         •  A statement in which the respondent  admits  facts stipulated in the
            consent agreement or neither  admits  nor  denies facts  alleged  in the
            complaint;
    
         •  A statement in which the respondent  consents to  the assessment of
            the stated civil penalty that  is reflected  in  the consent  agreement
            and proposed consent order;
    
         •  A statement that the respondent has  come  into  compliance with  all
            applicable requirements, or a schedule that  respondent  agrees  to
            implement to come into full compliance;  and/or
    
         •  A statement that respondent agrees to suspension or revocation of
            the permit.
    
    Also, the consent agreement must include any and  all terms  of the  agreement
    among the parties.  Consequently, any  terms  to which the parties have
    agreed in reaching a settlement must  be reflected in the consent agreement
    (e.g. , agreement by intervenor not to  pursue private damage remedies,
    agreement by the respondent to take actions  that minimize the effect  of the
    violation,  etc.).
    
    Partial settlement of the proceedings  is permitted  and,  in  many  cases,  is
    likely.  Settlement agreements and proposed  consent  orders  must  be very
    carefully drawn and completely understood before  signatures are  obtained  so
    that the parties understand precisely  what elements  of the  matter  are  not
    disposed of by the consent agreement  and consent  order.
    
    The consent agreement becomes final and binding  on  the parties  only after
    the Regional Administrator has signed  the consent order.  The consent  order
    disposes of only those elements of the proceeding that are  specifically
    addressed by that order and the consent agreement.
    
    The proposed consent order must be prepared  for  the  Regional  Administra-
    tor's signature.  It need not restate  all the terms  of the  consent  agree-
    ment, but it must at least explicitly  incorporate by reference  the consent
    agreement as being the basis for the  consent order.
    22.18(c)
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    Chapter Seven	Prehearing  Stage
    The Regional Administrator,  in  deciding whether  to  issue  a  final  consent
    order, nay require parties to the  settlement  to  appear  in person  to  answer
    questions relating to the proposed  consent  agreement or order.
    
    
    Filing of Consent Agreement  and Order
    
    The consent agreemeent and the  final consent  order  constitute important
    documents that affect the substantive and procedural rights of  the
    parties.  Consequently, the  originals of these documents  must be  placed in
    the Regional Hearing Clerk's file,  and copies must  be served as required  by
    Section 22.06 of the CROP.
    Prehearing Conference
    When a hearing is ordered, the Presiding Officer also convenes a prehearing
    conference, unless it appears to be unnecessary.  Prehearing conferences
    are intended to facilitate and expedite a hearing proceeding.  These con-
    ferences encourage informal, frank discussions among the parties on any
    matter that could expedite the hearing.  Any anticipated problems should be
    discussed at this time.  The prehearing conference may involve:
    22.19(a)
    
         •  Settling the case;
    
         •  Attempting to simplify the proceeding through consolidation of
            issues and stipulation by the parties;
    
         •  Amending the pleadings;
    
         •  Exchanging information concerning evidence to be presented (e.g.,
            identities of expert witnesses and summaries of their testimony and
            exchange of exhibits, documents, and prepared testimony);
    
         •  Limiting the number of witnesses;
    
         •  Setting a time and place for the hearing; and
    
         •  Attending to any matter that may expedite the disposition of the
            proceeding.
    Exchange of Information
    
    The CROP generally require that the parties exchange witness lists, brief
    descriptions of witness testimony, and copies of all documents and physical
    evidence that will be introduced into evidence.  This requirement supports
    the accepted manner of hearings—one that is forthright and avoids sur-
    prise .
    22.19(b)
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    Chapter Seven       	Prehearlng Stage
    Failure To Exchange Information
    
    A party must request the permission of  the Presiding Officer  to  introduce  a
    witness or a docuaent during a hearing  if that party did  not  exchange,
    prior to the hearing, the witness lists and documents  referred  to  in
    Section 22.19(b) of the CROP.  Additionally, if such permission  is granted,
    the Presiding Officer must first allow  other parties a reasonable  time  to
    review the newly introduced evidence.
    Protection of Evidence Sources
    
    Certain unusual circumstances may justify not  following  the  policy  of  early
    information exchange.  One such example is a reasonable  belief  that  wit-
    nesses might be subject to physical or economic intimidation.   Another cir-
    cumscance is a reasonable belief chat the nature of  the  documentary  or
    physical evidence would penile the respondent  to intimidate  witnesses,
    destroy evidence, or otherwise improperly interfere  with  the enforcement
    efforts of the Agency.  In such situations, the Presiding Officer should  be
    fully informed of the reasons for withholding  evidence or the identity of  a
    particular witness.
    Role of Discovery
    
    The CROP state that evidence that is not subject  to  the mandatory  exchange
    of witness lists and documents in the prehearing  conference  shall  be  sub-
    ject to discovery only upon determination by the  Presiding Officer  chat:
    22.19(f)
    
         •  The proceeding will not. be unreasonably delayed by such discovery;
    
         •  The information sought cannot be obtained through alternative
            means; and
    
         •  The information sought is of significant  probative value.
            22.19(f)(l)
    
    This provision of the CROP is primarily intended  to  address  discovery by
    deposition.  If the discovery involves oral depositions, the Presiding
    Officer must also find that the evidence will not be preserved for  presen-
    tation by a witness.
    22.19(f)(2)
    
    To obtain discovery, a party must make a motion for  discovery to the  Pre-
    siding Officer that sets forth the following:
    
         •  The circumstances warranting the taking of discovery;
    

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    Chapter Seven	Prehearing Stage
    
    
         •  The nature of  the  information,expected  to  be  discovered;  and
    
         •  The ptoposed time  and  place  where  it  will  be  taken.
    
    If the Presiding Officer determines  that  the  motion should  be  granted,  he
    or she will issue an order of  discovery together with the conditions  and
    terms for the  taking of such discovery.
    22.l9(f)(3)
    
    The difference between evidence  that  is subject to mandatory exchange
    requirements and evidence  that may be discovered must be carefully
    understood.  If the evidence being sought  should normally be exchanged
    under Section 22.19(b) and for some  reason is being withheld,  then  a  motion
    to the Presiding Officer to enforce  the requirements  of the CROP  must be
    made, not a motion for discovery.
    
    If an order for discovery  issued by  the Presiding Officer is not  obeyed,
    the inference may be drawn that  revealing  the withheld information  would
    adversely affect the party withholding it.  Also, an  order  for default  may
    be issued based on a failure to  comply with a prehearing or hearing order.
    22.19(f)(4), 22.17(«)
    
    An order for discovery is an important document that  affects the  procedural
    rights of the parties.  It must, therefore, be  included in  the Regional
    Hearing Clerk's file, and copies must be served in accordance  with
    requirements of Section 22.06  of the  CROP.
    
    
    Record of Prehearing Conference
    
    The record of a prehearing conference generally consists of a  summary
    prepared by the Presiding Officer that incorporates all rulings or  orders
    containing directions to parties and  any written stipulations  or  agreements
    of the parties.  Except for those portions  of a prehearing  conference that
    relate to settlements, a transcript  of the  prehearing conference  may  be
    made.  The transcript is ordered by  the Presiding Officer upon motion of a
    party or sua sponte.
    22.19(c)
    
    Settlement conferences, however, are  not recorded in  order  to  ensure  that
    the parties are able to negotiate freely and  compromise without fear  that
    such agreements will be subsequently  revealed.
    
    The transcript or written summary of  the prehearing conference must be
    filed with the Regional Hearing  Clerk for  inclusion in the Regional Hearing
    Clerk's file.
    22.06
    
    If a transcript is taken,  motions made during the hearing may  be  oral.
    However, if no transcript  is taken,  any motions made  must be in writing and
    must otherwise conform with the  requirements  of Section 22.16  of  the  CROP
    and the filing, service, and consent  requirements specified by Section
    22.05.
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    Chapter Seven    	Prehearing Stage
    Motion for Accelerated Decision and Dismissal
    Motion for Accelerated Decision
    
    The Presiding Officer may issue an accelerated  decision  either  sua  sponte
    or upon motion by the respondent or complainant.  The  accelerated decision
    may involve a particular issue or the entire case,  and may  be  issued  at  any
    time during the proceeding if the Presiding Officer finds  that:
    22.20
    
         •  No genuine issue of material fact  exists  between  respondent and
            complainant; and
    
         •  The complainant or respondent is entitled to a judgment  as  a  matter
            of law.
    
    "Entitled to a judgment as a matter of  law" means that the  movent has
    established by undisputed or undisputable  (not  reasonably  challenged) evi-
    dence that all technical and legal elements in  a  violation  did  occur  and
    that, consequently, the Presiding Officer  must  decide  a  particular  issue or
    the entire case in the movent's favor at that  time.  Because  there  is
    nothing to adjudicate, there is no need for a  hearing.
    
    A discussion of all of the relevant precedents  and  considerations that
    apply to a motion for an accelerated decision  is  not feasible  in the  space
    allowed.  However, some general principles can  be discussed.
    
    Nature of Motion.  A motion for an accelerated  decision  challenges  the
    essential position of the other party's case.   The  motion asserts that,
    under the facts and law of the case, the adverse  party's  position is  en-
    tirely without merit.  In this sense, it is not merely a  technical
    motion—that is, one which seeks to establish  that  the manner  or form of
    the other party's pleadings is technically insufficient  to  establish  a
    defense or a claim.  It would not, for  example, seek to  establish that the
    respondent's defense pleadings lack discussion  of an essential  element of
    the defense.  Instead, the motion seeks to undermine the  adverse party's
    pleadings by demonstrating that, irrespective of  those pleadings, the facts
    and law of the case require a judgment  in  favor of  the moving party.
    
    Facts.  By requiring that no genuine material  issue of fact exists between
    the parties, the standard for an accelerated decision  does  not mean that
    the parties must agree on all material  facts.   Instead,  the material  facts
    may be either undisputed or undisputable,  that  is,  cannot reasonably  be
    challenged.
    
    Affirmative Defenses.  The complainant  must demonstrate  entitlement to a
    judgment as a matter of law.  The complainant  is  required not only  to prove
    the elements of the violation by .undisputed or  undisputable evidence, but
    also to address any affirmative defenses raised by  the respondent with
    undisputed or undisputable evidence (e.g., an  argument that the  respondent
    relied on Agency advice in violating applicable regulations).
    RCRA Compliance/Enforcement              7-18            Guidance Manual 1984
    

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    Chapter Seven	Prehearing Stage
    Evidence and Burden.  The Presiding Officer will probably  rely  on  affi-
    davits and counteraffidavits in reaching a decision on  the motion  for  an
    accelerated decision.  However, the Presiding Officer may  consider any
    admissible evidence, including stipulations, admissions, deposition testi-
    mony, and officially noticed evidence.
    22.20(a)
    
    In deciding whether to grant the motion for an accelerated decision, the
    Presiding Officer generally considers every allegation  in  a  light  most
    favorable to the party against whom the motion is made.
    Motion To Dismiss
    
    In addition to a motion for an  accelerated  decision,  the  respondent can
    make a motion to dismiss for:
    
         •  Failure of the complainant  to  establish  a  prima facie  case*, and
    
         •  Other grounds that show that the complainant  has  no  right  to
            relief.
            22.20(a)
    
    To find useful precedent and argument  for these  standards, the following
    sources may be helpful:
    
         •  For the first standard, Rule 41(b)'of  the  Federal Rules of Civil
            Procedure (Fed. R. Civ. P.), Involuntary Dismissals, and any
            federal decisions on this rule; and
    
         •  For the second standard:
    
            — Agency decisions—in which  RCRA  standards  for  an  accelerated
               decision were applied—that relate  to failure  to  state  adequate
               claim £r_ in which the  result was required  by justice,  and
    
            — Federal decisions [involving Fed. R.  Civ.  P. 12(b), which
               relate to motions to dismiss] that  were based  on  lack of  juris-
               diction, insufficient  process, or failure  to state  a claim upon
               which relief can be  granted.
    Partial Decision
    
    A decision  that grants  a motion  for  an accelerated decision.or a motion to
    dismiss need not  dispose of  all  issues in  the  proceeding.   If  such a par-
    tial order  is  issued,  the  Presiding  Officer must also determine which
    issues remain  in  controversy between the parties.   To do so,  the Presiding
    Officer must issue  an  interlocutory  order  that specifies the issues dis-
    posed of by the accelerated  decision or dismissal  order  and those issues
    that remain in controversy.
    22.20(b)(2)
    RCRA Compliance/Enforcement              7-39           Guidance Manual 1984
    

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    Chapter Seven	Prehearing Stage
    
    
    Initial Decision •
    
    If an accelerated decision  or  dismissal  order  is  issued  that  disposes of
    all issues in the proceeding,  such a decision  or  order is  treated as  an
    initial decision and,  therefore, may be  appealed  to  the  Administrator under
    Section 22.30 of the CROP.
    22.20(b)(l)
    
    If a partial decision  is rendered, the objecting  party,  before  appealing,
    must await the issuance of  a final initial  decision  or obtain certification
    to appeal an interlocutory  decision.
    22.20(b)(2), 22.29
    
    An initial decision must comply with the  requirements of Section  22.27(a)
    on content, filing, service, and transfer requirements.
    RCRA Compliance/Enforcement7^40Guidance Manual  1984
    

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    Chapter Seven
    5     Hearing  Stage
    The Presiding Officer convenes a hearing  on  request by the respondent or,
    if appropriate, sua sponte—if the  matter has  not yet been disposed of by a
    default order, accelerated decision,  dismissal order, or consent order.
    The Chief Administrative Law Judge  appoints  a  Presiding Officer as soon as
    the respondent files an answer.
    22.21
    Notice of Hearing and Venue
    If the respondent requests a hearing  or  if a hearing is ordered by the
    Presiding Officer, the Presiding Officer must issue to all parties a notice
    of hearing, which identifies the time, date, and place for the hearing.
    Such notice must be issued at least 20 days before the date set for the
    hearing.  22.21(b)  The hearing may be held:
    
         •  In the county where the respondent resides or conducts the business
            for which the hearing concerns;
    
         •  In the city in which the relevant EPA Regional Office is located;
            or
    
         •  In Washington, D.C.
    
    However, the Presiding Officer may determine that there is good cause to
    hold the hearing either at another location in a Region or by telephone.
    22.21(d), 22.19(d)
    
    Any party may make a motion for postponement of the hearing but the movent
    must demonstrate good cause for the request.
    22.21(c)
    RCRA Compliance/Enforcement              7-41          Guidance Manual 1984
    

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    Chapter Seven          	                    Bearing Stage
    Presentation of Evidence
    As is true for all Agency administrative  proceedings,  the  complainant  is
    the first to present evidence.  The complainant must  establish  a  prima
    facie case; that is, the complainant must  submit  evidence  that  the  events
    alleged 'in the complaint did occur, that  the  events constitute  a  violation
    of the Act and the regulations, and that  the  proposed  civil  penalty is
    appropriate.  After the complainant has established a  prima  facie case,  the
    respondent must then present any defense  to Che allegations  that  are con-
    tained in the complaint and any affirmative defenses  that  are raised by  the
    answer.
    22.24
    
    "Burden of Presentation" and "Burden of Persuasion" are  used in the CROP to
    describe the burden of proof that  is placed on  the parties in the hearing.
    22.24  The definitions are as  follows:
    
         •  Burden of Presentation (Burden of  Going Forward  With the
            Evidence)—A party must introduce  evidence on  the  claims  or
            defenses raised in the complaint  or answer.
    
         •  Burden of Persuasion—Each party  must convince the Presiding
            Officer of the affirmative allegations  in his  or her pleading.
    
    The complainant is alleging that a violation  has  in fact occurred and,
    therefore, has the burden of presentation.  The complainant  also  has the
    burden of persuasion.  Once the complainant has established  a prima facie
    case, the burden of presentation shifts to the  respondent, who  must then
    introduce sufficient evidence  to rebut or  outweigh the evidence presented
    by the complainant.  The burden of persuasion never shifts,  but remains
    with the complainant throughout the proceeding; that  is, the complainant
    always has the obligation of convincing the Presiding  Officer,  by a pre-
    ponderance of the evidence, of the allegations  contained in  the complaint.
    
    The respondent has the burden  of persuasion with  respect to  any affirmative
    defenses raised in the answer—for example, a reliance argument based  on
    Agency advice.  The burden of  presentation initially  rests with the respon-
    dent but shifts, once the respondent has  introduced sufficient  evidence  to
    support a favorable finding.
    Preponderance of Evidence
    Each matter that is contested in the hearing and  that must  be  adjudicated
    to decide the case is determined by  the Presiding Officer on  the  basis  of  a
    preponderance of the evidence.  To prevail, a  party must convince  the
    Presiding Officer that, on balance,  his or her allegations  appear  tnore
    likely or probable than the other party's allegations.  This  standard  is
    

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    Chapter Seven	Hearing Stage
    different from^that of a criminal case, which requires a decision based on
    "evidence beyond a reasonable doubt" or "evidence excluding a reasonable
    doubt."
    22.24
    Default Orders and Accelerated Decisions
    During the hearing, the complainant should keep in mind that a motion for
    default order (except one based on failure to file a timely answer) or a
    motion for an accelerated decision may be appropriate despite the advanced
    stage of the proceeding.
    Hearing Rules of Evidence	
    
    
    Under the CROP, the Presiding Officer must admit evidence unless it falls
    in one of the following categories:
    
         •  Irrelevant;
    
         •  Immaterial;
    
         •  Unduly repetitious;
    
         •  Unreliable; and
    
         •  Of little probative value.
            22.22(a)
    
    When in doubt, the Presiding Officer will most likely admit, not exclude,
    evidence.
    
    
    Confidential Information
    
    The CROP state that, from the outset, confidential information can be
    introduced as evidence.  The Presiding Officer may make such orders as may
    be necessary to consider such evidence in camera, including the preparation
    of a supplemental initial decision to address questions of law, fact, or
    discretion arising out of that portion of the evidence that is confidential
    or includes trade secrets.
    22.22(a)
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    Chapter Seven  	.	        	Hearing Stage
    Unless otherwise permitted by the Presiding Officer,  such  a  supplemental
    decision, if-issued before the final initial decision,  is  to  be  treated
    like a partial decision and is not appealable until  the final initial
    decision is issued or certification to appeal an  interlocutory decision  is
    obtained.
    22.29(a)
    
    For confidential commercial information, the complainant should  be  aware
    that 5 U.S.C. Section 1901 prohibits the disclosure  of  such  information  by
    a government official.  (See also, Chapter Eleven.)
    Materiality and Relevancy
    
    Two standards described in the CROP concern materiality  and  relevancy.
    Materiality and relevancy are legal terms of art, and  previous  cases  should
    be consulted to determine how they have been treated by  the  Agency.
    Federal case law should also be consulted.
    22.22(a)
    
         •  Materiality.  Material-evidence is evidence that  is  pertinent  to  or
            has a legitimate and effective bearing on the  case.   For  example,
            the evidence relating to the status of an officer within  a
            corporation may be material to proving that he or she knowingly
            violated RCRA by improperly storing hazardous  waste.  The officer's
            status within the local church, however, is not  likely  to be
            material.
    
         •  Relevancy.  Evidence that is material may or may  not  be relevant.
            Relevant evidence is evidence chat has a tendency to  make a fact  in
            issue more probable or less probable.  The emphasis  here  is on  the
            probative value of the evidence.  The probative  value of  offered
            evidence must be assessed in light of the facts  in issue.  For
            example, to prove that a reporting violation has  occurred, evidence
            demonstrating that a particular EPA report was prepared but not
            sent would surely be relevant.  In contrast, evidence that the  firm
            generally failed to maintain good business records might  still  be
            considered material but is less likely to be considered relevant  or
            probative.
    
    Although materiality and relevancy have technical distinctions, in general,
    both standards can be viewed in terms of probative value  of  evidence.   If
    an item of evidence has probative value to the issue for  which  it is
    introduced (i.e., tends to prove or disprove a particular proposition),
    then both criteria are satisfied.
    Evidence Relating to Settlement
    
    Any evidence relating to settlement  that would  be  excluded  under  Rule  408
    of the Federal Rules of Evidence  (Fed. R. Evid.)  is  also  excluded under
    the CROP.  Rule 408 of the Fed. R. Evid. generally excludes evidence of
    settlement or attempted settlement when it  is offered  as  proof  of an
    RCRA Compliance/Eoforcenent               7-44           Guidance Manual 1984
    

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    Chapter Seven	Hearing Stage
    admission of liability.  This  evidence,  however, may  be  admitted for
    another purpose, such as proving bias of  a witness  or disproving a
    contention of undue delay.  When such evidence  is offered  for  these
    purposes, it may still be excluded  if the Presiding Officer  determines  that
    its probative value is outweighed by confusion  of issues,  undue  delay,  etc.
    Testimony of Witnesses
    
    Witnesses are generally examined  orally upon oath  or  affirmation.  The
    Presiding Officer, however, may allow certain  exceptions  to  this rule
    (e.g., an affidavit from a dying  witness).  Any witness appearing  at the
    hearing may be cross-examined if  the cross-examination is not  unduly
    repetitious.
    22.22(b), 22.22(d)
    Verified Statements in Lieu of Direct Testimony
    
    In lieu of direct testimony, a party may desire  that  a witness  admit  into
    the record previously prepared statements of  fact or  opinion.   Such a
    request may be appropriate when the testimony is technical  or academic  and
    does not lend itself to a clear, cohesive presentation through  direct
    questions.  This type of evidence can be admitted only upon the approval of
    the Presiding Officer.
    
    A copy of the written statement must be submitted to  the Presiding Officer,
    reporter, and opposing counsel before it is delivered.  The evidence
    contained in the statement is subject to the  sane rules of  testimonial
    evidence that apply to oral testimony (e.g.,  the witness must swear to  or
    affirm the statement and is subject to oral cross-examination concerning
    the statement).
    22.22(c)
    Affidavits in Lieu of Direct Testimony
    
    When a witness is "unavailable," as defined by Rule 804(a),  of  the Fed.  R.
    Evid., an affidavit may be admitted into evidence in  lieu of oral
    testimony.  Under Rule 804(a), witnesses are deemed unavailable  if  they  are
    exempt by a court order, refuse to testify in spite of a court order, claim
    lack of memory, are dying or physically impaired, or  are absent  despite
    efforts to secure their attendance.
    22.22(d)
    Exhibits and Physical Evidence
    
    If exhibits are introduced, the original and one copy must be  filed with
    the Presiding Officer where practicable.  A true copy of  any exhibit may  be
    substituted for the original if submitting the original is not possible.
    Copies must also be furnished to each party.
    22.22(e)
    RCRA C-mpliance/Enforceaent              7-45          Guidance  Manual
    

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    Chapter Seven	__	Hearing Stage
    Official Notice
    
    The Presiding. Officer may  take  official notice  of  any  natter  judicially
    noticed in the federal courts,  of matters  permitted  under  Rule  201  of  the
    Fed. R. Evid., and of other facts that are within  the  specialized knowledge
    and experience of the Agency.   Official notice  may be  sua  sponte or upon
    motion by one of  the parties.
    22.22(f)
    
    Official notice under Rule 201  of the Fed. R. Evid.  is  limited  to adjudica-
    tive facts that are not subject  to  reasonable dispute  and  that  are:
    
         •  Generally known within  the  territorial  jurisdiction of  the
            proceeding; or
    
         •  Capable of accurate and  ready determination.
    
    "Adjudicative facts" directly concern the  immediate  parties in  the
    proceeding—who did what, when;  where, how, and with what  motive or
    intent.  These facts relate to  the  occurrence(s) alleged by the pleadings,
    which must be adjudicated to decide  the case.
    
    The official notice that the Presiding Officer  may employ  as  a  result  of
    the special expertise of the Agency  is broader  than  that permitted  by  Rule
    201 of the Fed. R. Evid.  Consequently, official notice extends to  all
    matters about which the Agency  is presumed to be expert.   For example,  the
    experience and knowledge of the  Agency in  an environmental area might
    justify official notice that, statistically, a  physical event always occurs
    under a certain set of environmental circumstances.
    Subpoenas and Summoning Witnesses
    Issuance of Subpoenas
    
    The Presiding Officer may issue a subpoena  to require  the attendance  of
    witnesses or the production of documentary  evidence.   The Presiding Officer
    may also grant a request for a subpoena upon a showing by the movent  of:
    
         •  The grounds and necessity of the evidence or witness; and
    
         •  The materiality and relevancy of the evidence  or witness sought.
            22.37(f)(l)
    
    In addition, a request for the production of documents must  describe  the
    evidence sought as specifically as practicable.
    22.37(f)(l)
    
    Subpoenas are served in accordance with Section  22.05(b)(l)  of  the CROP.
    22.37(f)(2)
    RCRA Comol 1anrp/F.nforremonr               7-46           Guidance  Manual  1984
    

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    Chapter Seven	Hearing Stage
    Witness Fees
                •
    Witnesses summoned by  subpoena  before  the Presiding  Officer  are  to be paid
    the same fees and mileage  that  are  paid witnesses  in the  courts  of the
    United States.  The fees are  to be  paid by  the  party who  requested the
    witness's appearance.  If, however,  the witness  appears pursuant  to a
    request initiated by the Presiding  Officer,  then the fees are  to  be paid by
    the Agency.
    22.37(f)(3)
    Objections and Rulings
    Objections about the conduct of  the hearing,  such  as  evidentiary  and
    procedural objections, may be stated orally or  in  writing.   The  form  of  the
    objection depends on the circumstances.   In general,  however,  if  the
    objection involves a relatively.complicated argument  and  if  time  permits,
    it should be written.  If it is  written,  it must comply with the  service,
    filing, and content requirements specified by Section 22.05  of the  CROP.
    22.23(a)
    Rulings and Exceptions to Rulings
    
    The Presiding Officer must rule on all objections  and  provide  reasons  for
    the rulings, which will become part of the  record.  Copies  of  the  ruling
    must be served on the parties by the Presiding Officer and  the original
    entered into the Regional Hearing Clerk's file in  accordance with  Section
    22.06 of the CROP..  The CROP also state  that  to  take specific  exception  to
    each overruled objection is not necessary.  The  exception to an  overruled
    objection is automatic and is not waived by further participation  in  the
    hearing.
    22.23(a)
    Appeal of Ruling
    
    A ruling on an objection  is not  subject  to  an  automatic  interlocutory
    appeal to the Administrator.  A  party wishing  to appeal  the  ruling
    immediately, must make a motion  in writing  within six  days of  notice of  the
    ruling to the Presiding Officer  to certify  such a ruling to  the
    Administrator.  (See also, "Appeals of Interlocutory Orders  or Rulings"  in
    this section.)
    
    Unlike other motions made during a hearing, a  request  for certification  may
    not be made orally, but must be  in writing.
    22.29(a)
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    Chapter Seven	Hearing Stage
    Offers of Proof	
    
    
    If evidence is found immaterial, irrelevant, etc.  and  cannot  be  introduced,
    the party seeking to introduce it may not only object  to  its  exclusion,  but
    may also make an offer of proof*  An offer  of proof  places  the  evidence
    into the official record, and the Administrator on appeal can use  such
    evidence to reopen the hearing.  This offer consists of:
    
         •  One copy of the documentary or physical evidence; or
    
         •  A brief written summary, if the evidence  is  testamentary.
    
    Such offers of proof are not mandatory, and the right  to  appeal  the
    exclusion of evidence is preserved under Section  22.23(a).  Nonetheless,
    offers of proof should generally be made whenever  evidence  is excluded.
    22.23(b)
    Transcript of Hearing
    A hearing must be transcribed verbatim, and  the  reporter must  send  the
    original and copies of the transcript to the Regional Hearing  Clerk for
    filing.  A copy must also be sent to the Presiding Officer.  The  Regional
    Hearing Clerk must notify all parties of the availability  of the  transcript
    and permit them to obtain a copy upon payment of  a reproduction fee.
    Payment may be waived if a party can show that the cost is unduly
    burdensome.  A certificate of service should accompany each copy  of the
    transcript.  Persons not a party to the proceeding may receive a  copy of
    the transcript (except for confidential portions  of  the transcript) upon
    payment of a reproduction fee.
    22.25
    
    The transcript of the hearing is an important document because:
    
         •  Many objections and motions made during  the  hearing are oral and
            are thus reflected only in the transcript; and
    
         •  The transcript is used by the parties to  draft the proposed
            findings of fact, conclusions of law, and orders,  which are then
            submitted to the Presiding Officer for consideration in issuing the
            initial decision.
    RCRA Compliance/Enforcement               7-48           Guidance Manual
    

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    Chapter Seven	      Hearing Stage
    Proposed Fitulings, Conclusions, and Orders
    At the conclusion of  Che hearing,  parties  may  submit  proposed  findings  of
    face, conclusions of  law. and orders  to  the  Presiding Officer  for
    consideration  in issuing the initial  decision.
    
    The purpose of  the proposals and supporting  briefs  is to  advocate  positions
    of the submitting party and to  persuade  the  Presiding Officer  to adopt  that
    party's proposals-
    Procedures
    
    The proposed findings of  fact, conclusions  of  law, and  orders,  together
    with supporting briefs, may be submitted  to the Presiding  Officer  for
    consideration within 20 days of notice of the  transcript's  availability.
    The proposals and briefs  must be served on  the other  parties.   Although  the
    Presiding Officer must permit reply briefs,  the timing  of  such  briefs  can
    be specified.  The proposals and all  briefs must be in  writing  and  must
    contain adequate references to the record and  authorities  relied on.
    22.26
    Preparation
    
    In preparing the proposals, the focus  should  be  on  issues  that  the
    Presiding Officer must address in the  initial decision.
    
    The importance of the proposals and briefs cannot be overemphasized.
    Through these materials, the position  of  the  submitting party can be
    detailed, and the Presiding Officer can view  in  dspth  the  aerits of  the
    party's position.
    Initial Decision
    
    The Presiding Officer must issue an initial decision as  soon  as  is
    "practicable" after the period specified for filing reply briefs  to  the
    proposed findings, conclusions of law, and orders.
    
    The initial decision should contain the Presiding Officer's:
    
         •  Findings of fact and conclusions for all material issues  of  law  or
            discretion;
    
         •  Reasons for those findings and conclusions;
    
         •  Recommended civil penalty; and
    
         •  Proposed final order.
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    Chapter Seven	Hearing Stage
    In determining the dollar amount of  the  recommended  civil  penalcy assessed
    in the initial decision, the Presiding Officer must  consider:
    
         •  The seriousness of the violation; and
    
         •  Any good faith efforts by the respondent  to  comply with  the
            applicable requirements.
    
    Specific reasons must be set forth in the initial  decision if  Che Presiding
    Officer increases or decreases the amount of penalty  from  that originally
    proposed in the complaint.  The Presiding Officer, however,  cannot increase
    the amount of penalty from that which was recommended in the complaint  if
    the respondent has defaulted.
    
    
    Challenge to Initial Decision
    
    The initial decision becomes a final order within  45  days  after  it is
    served unless:
    
         •  A party files a motion to reopen the hearing,  which stops the
            45-day period until the motion is denied or  the reopened hearing  is
            concluded; or
            22.28
    
         •  A party makes an appeal to the Administrator,  or the Administrator
            determines sua sponte that a review of the initial decision is
            appropriate.
            22.27
    Motion To Reopen a Hearing
    If a party believes that additional evidence  should  be  introduced  into  the
    record, that party may make a motion to reopen  the hearing.   Such  a  motion
    must be made no later than 20 days after service of  the  initial  decision  on
    the parties.  The motion to reopen the hearing  must  state  the  specific
    grounds upon which relief is sought, state  the  nature and  purpose  of the
    evidence to be adduced, and show that the evidence is not  merely
    cumulative.  The party must also demonstrate  why the evidence  was  not
    introduced at the hearing.  The motion must be  written and must  comply  with
    the requirements specified for such motions and the  filing,  service, and
    content requirements for submitting documents.
    22.28(a)
    Replies from other parties must be made within  10  days  after  the motion  is
    served.  The Presiding Officer must render a decision on  the  motion  as soon
    as is practicable after the filing of replies.
    22.28(b)
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    Chapter Seven	Hearing Stage
    Filing a notion  to  reopen  a  hearing  shall  automatically stay the running of
    all time perio'ds  (e.g., appeals)  until  such  time  as  the notion is denied or
    the reopened hearing  is concluded.
    22.28(b)
    Appeals of Interlocutory Orders  or Rulings
    Immediately Appealable Orders
    
    The only orders or  rulings  that may  be  appealed  to  the  Administrator  as  a
    matter of right are:
    
         •  Accelerated decisions  that decide  the  entire  case;
            22.20, 22.29
    
         •  Dismissal orders;
            22.20, 22.29
    
         •  Default orders; and
            22.17, 22.29
    
         •  Initial decisions rendered after an  evidentiary hearing.
            22.27. 22.29
    
    All other orders or rulings issued by an Agency  official during  the
    prehearing and hearing proceedings are  considered interlocutory.   As  such,
    they must await the issuance of an initial decision before  they  can be
    appealed, unless the Agency official issuing such orders or rulings
    certifies them to the Administrator  on  appeal.
    22.29
    Procedures and Standards for Interlocutory Orders
    
    A motion for interlocutory appeal  of  an  order  or  ruling  must  be  filed  in
    writing within six days of notice  of  such ruling or  order.
    22.29
    
    Besides stating the grounds for appeal,  the moving party must  demonstrate,
    to the appropriate Agency official, that:
    
         •  The order or ruling involves  important legal or  policy issues
            concerning which there is  substantial  grounds  for  difference of
            opinion; and
    
         •  Immediate appeal will materially advance  the proceeding  or  that
            waiting for normal review  will be ineffective  or inadequate.
            22.29(b)
    RCRA Compliance/Enforcement               7-51           Guidance Manual 1984
    

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    Chapter Seven	     Hearing  Stage
    The notion oust also comply with requirements for  filing,  service,  and
    content specified in the CROP.
    
    If the Presiding Officer does not certify the interlocutory  appeal, a party
    may make a motion to the Administrator within six  days of  service  to
    reverse that decision on the grounds that it is contrary  to  the  public
    interest.  This motion must also comply with the requirements of Section
    22.16 and 22.05 of the CROP, except that the appropriate Agency  officials
    receiving the motion are the Regional Hearing Cleric and the  Administrator.
    Actions by the Administrator
    
    If the Presiding Officer certifies the interlocutory appeal,  the
    Administrator may:
    
         •  Deny the certification as improvidently granted;
    
         •  Take no action within 30 days and thereby dismiss  the
            certification; or
    
         •  Grant the certification, review the interlocutory  appeal, and grant
            or deny the appeal on its merits.  22.29(c)
    
    Ordinarily, the interlocutory appeal will be decided on the basis of  the
    submissions made by the Presiding Officer.  The Administrator may, however,
    allow further briefs and oral argument.
    22.29(c)
    Request for Stay
    
    The motion for interlocutory appeal may include a request  for stay of  the
    proceeding pending the Administrator's decision on the certification and
    interlocutory appeal.  The request must demonstrate  that extraordinary
    circumstances exist to justify granting the stay.  If the  Presiding Officer
    grants a request for stay of over 30 days, it must be separately approved
    by the Administrator.
    22.29(d)
    RCRA Compliance/Enforcement              7-52          Guidance  Manual  1984
    

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     Chapter  Seven	'     	Exhibit 7-5
    
    
                                 Model Default Order
                                    UNITED STATES
                           ENVIRONMENTAL PROTECTION AGENCY
                                      REGION 	
                                      (Address)
      In re:                           )            Docket No. RCRA -
    
      (Name of  the  Respondent)         )
      (Address)                        )            DEFAULT ORDER
                Respondent
                                 Preliminary Statement
      This administrative  proceeding  was  initiated pursuant to Section
      3008(a)(l) and  (g) of  the  Solid Waste  Disposal Act as amended by the
      Resource Conservation  and  Recovery  Act of 1976, as amended, 42 U.S.C.
      §6901 e_t se£. (hereinafter referred to as "the Act" or "RCRA").
      Respondent is charged  with violating (cite specific sections of the Act
      and regulations).  It  is hereby determined that an appropriate default
      order shall be  issued  based on  the  findings of fact and conclusions of
      lav as set forth below.
                                    Findings  of  Fact
    
      {The "Findings of Fact"  section  should state with particularity all
      findings of  fact with  respect  to each  material  allegation noted in the
      cotaplaint.)
    
                                  Conclusions of Law
    
      1.  By reason of the facts  as  set  out  in  the Findings  of Facts,
          respondent violated  (cite  specific sections of the Act and
          regulations).
    
      2.  By failing to file a timely  answer to the complaint, compliance
          order, and opportunity  for hearing,  respondent is  in default [60
          C.F.R. §22.17].  Default  by  respondent constitutes an admission of
          all facts alleged  in the  complaint and a waiver of respondent's
          right to a hearing on such factual allegations.
    RCRA Compliaoce/Eoforceaent               7-53          Guidance Manual 1984
    

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    Chapter Seven
                           Exhibit 7-5
      3.  It is further concluded  that  the  amount  of  the civil penalty
          proposed in the complaint  is  appropriate pursuant to Section
          3008(c) of RCRA in  that  it  takes  into  account  the seriousness of
          the violation and any  good  faith  efforts of the respondent to
          comply with the applicable  requirements.
    
                                    Order
    
      IT IS HEREBY ORDERED that  the respondent shall, within sixty (60) days
      of receipt of this default order,  pay by cashier's or certified check a
      civil penalty in the amount  of  (amount  of  penalty) to the Treasurer,
      United States of America.  Such remittance may  be  sent by messenger or
      certified mail to the Hearing Clerk,  United  States Environmental
      Protection Agency, Region 	, (address).  In  the event of failure of
      respondent to make said payment within  sixty (60)  days of receipt of
      this default order, the matter  shall  be referred to the appropriate
      United States Attorney  for recovery by  appropriate action in a United
      States district court.
    
      IT IS FURTHER ORDERED that the  compliance  order contained in the
      complaint, compliance order, and  opportunity for hearing shall become
      final on the date of issuance of  this  default order.'
    
      AND NOW,  THIS DAY OF (date)  the foregoing  default  order is hereby issued
      under the authority of  RCRA  and the Consolidated Rules of Practice
      adopted pursuant thereto.
                                       	(Signature)	
                                               Regional  Administrator
    
      Respondent shall comply with the  terms  of  the compliance order as
      contained in the complaint,  compliance  order, and  opportunity for
      hearing [as modified as follows:   (state modifications)].
    
                                       	(Signature  of respondent)	
                                              (Signature  of  complainant)
                                        Date:
                   At:
      IT IS SO ORDERED.  This order shall become  effective  immediately.
                                         (Signature of Regional  Administrator)
                                         Regional Administrator,  EPA Region
                                        Date:
                   At:
    RCRA Compliance/Enforcement
    7-54
    Guidance Manual 1984
    

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    Chapter Seven	Exhibit 7-6
    
    
                      Model  Consent Agreement and Final Order
                                    UNITED STATES
                         ENVIRONMENTAL PROTECTION AGENCY
                                 REGION _
                                      (Address)
                                            )       Docket No.  RCRA - _ - _ -__
    
      In re:                                )
                                            )
      (Name of Respondent)                  )       CONSENT AGREEMENT
      (Address)                             )        AND FINAL ORDER
                                            )
                  Respondent                )
    
                                 Preliminary Statement
    
      1.  This administrative  proceeding was initiated pursuant to Sections
          3008(a)(l) and  3008(g) of  the  Solid Waste Disposal Act as amended
          by the Resource Conservation and  Recovery Act of 1976, as amended,
          42 U.S.C. §6901 et_ sec^.  (hereinafter referred to as "the Act" or
          "RCRA").  Respondent  is  charged with violating (cite specific
          sections of the Act  and  regulations).
    
      2.  Respondent filed 'an  answer  admitting the jurisdictional allega-
          tions of the complaint and  admits (facts admitted)  , or explains
          (neither admits nor  denies) (facts explained) _ .
    
      3.  Respondent hereby explicitly waives the  right to « request a hearing
           on any issue consented  to  herein.
    
      4.  Respondent consents  to the  issuance of  the order hereinafter
          recited, with the stipulations and admission of facts and conclu-
          sions of law for  the  purposes  of  this  proceeding only.  Respondent
          consents to the payment  of  a civil penalty of the amount set out in
          the order and to  the  terms  for compliance.
    
                                   Findings  of Fact
    
      [The "Findings of Fact"  section should state with particularity all
      findings of fact with respect  to each material allegation noted in the
      complaint. ]
    
                                  Conclusions of  Law
    
      By reason of the facts set forth in the "Findings of Fact," it is con-
      cluded that respondent has violated (cite  specific sections of the Act
      and regulations.
    
      Respondent hereby consents to  the  issuance of the following order.  The
      (title of the Regional Office)  EPA Region  _     hereby recommends that
      the Regional Administrator issue the  following order:
    RCRA Compliance/Enforcement               7-55          Guidance Manual 1984
    

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    Chanter Seven	Exhibit 7-5
                                       Order
    
      Respondent shall within sixty  (60)  days  of  receipt  of this order pay by
      cashier's or certified check a civil  penalty  in  the amount of (amount
      of penalty) to the Treasurer,  United  States of America.   Such
      reaittance may be sent by messenger or certified  mail to the Hearing
      Clerk, United States Environmental  Protection Agency, Region _ ,
      (address) .  In the event of failure of respondent to make said payment
      within sixty (60) days of receipt of  this default order,  the matter
      shall be referred to the appropriate  United States  Attorney for
      recovery by appropriate action in a United  States district court.
    
      IT IS FURTHER ORDERED that the compliance order  contained in the
      coaplair.c, compliance order, and opportunity  for  hearing shall become
      final or. the date of issuance  of this default order.
          MOV, THIS DAY OF (date)    the  foregoing  default  order is hereby
      issued under the authority of  RCRA and  the Consolidated  Rules of
      Practice adopted pursuant thereto.
                                                         (Signature)
                                                      Regional  Administrator
    RCRA Compliance/Enforcement               7-56           Guidance Manual 1984
    

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    Chapter Seven
    6    Post-Hearing Stage
    Appeal of Inicial Decision
    Jurisdiction of Administrator
    
    The Administrator assumes full jurisdiction of  the case immediately after
    the Presiding Officer issues  an initial decision.  The Administrator
    assumes jurisdiction regardless of  whether or not a party appeals the
    initial decision.  If, however, a party files a motion to reopen a hearing,
    the Presiding Officer may rule en that motion.
    22.27(c)
    
    Once the initial decision is  issued,  the Regional Hearing Clerk's file,
    which now includes the original initial decision, is forwarded to the
    Hearing Clerk.  Consequently, the appellant must send any notice of appeal
    and accompanying appellate brief to the Hearing Clerk.  A motion to reopen
    a hearing, however, is to be  filed  with the Regional Hearing Clerk.
    22.27(a), 22.30(a)
    Notice of Appeal and Appellate Brief
    
    The notice of appeal and appellate  brief must comply with the general
    filing, service, and form requirements of the CROP where appropriate.  The
    notice of appeal and the appellate  brief must be filed with the Hearing
    Clerk within 20 days after the initial decision is served on the parties.
    22.30(a)(l)
    
    The notice of appeal must address the disputed findings of fact and
    conclusions of law contained in the initial decision.  Specifically,  it
    must contain:
    
         •  Alternative findings of fact;
    
         •  Alternative conclusions regarding issues of law or discretion;
    
         •  A proposed order that reflects the conclusions and findings desired
            by the appellant; and
    t. IA Compliance/Enforcement             7-57          Guidance Manual 1984
    

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    Chapter Seven	Post-Hearing Stage
         •  Relevant references  to  the  record  and  the  initial  decision.
            22.30^X1)
    
    The appellate brief is intended  to  present  the  appellant's  arguments  as  to
    why the appeal should be granted.   As  such,  it  must  include:
    
         •  A statement of issues presented  for  review;
    
         •  A statement of the nature of  the case;
    
         •  Identification of the facts that are relevant  to  the  issues pre-
            sented for review;
    
         •  Specific arguments on the issues presented;
    
         •  A short conclusion that  includes the precise  relief being  sought;
            and
    
         •  Appropriate references  to the  record and the  initial  decision.
    
    
    Party's Reply
    
    Any other party or amicus curiae may  file  a  reply  brief with  the Hearing
    Clerk, within 15 days of service  of  a  notice  of  appeal  and  appellate brief.
    The reply brief is specifically  intended to  address only  the  appellate
    brief and should be so limited.  Therefore,  it  should  respond to the  argu-
    ment raised by the appellant, together with  references  to  the relevant  por-
    tions of the record, initial decision, or  appellate brief.  The  reply brief
    must also comply with service, filing, and content requirements  specified
    by the CROP.
    22.30(a)(2)
    Administrator's Actions
    
    Even if the Initial decision  is not  formally  appealed,  the  Administrator
    may determine sua sponte that a review of  the  initial decision  is  neces-
    sary.  The Administrator, however, has only 45 days  after service  of  the
    initial decision to review  the initial decision sua  sponte.   Otherwise,  the
    initial decision of the Presiding Officer  becomes  the final  order  of  the
    Administrator.
    22.27(c), 22.30(b)
    
    If the Administrator determines to review  the  initial decision  sua sponte,
    the Hearing Clerk shall serve notice  of  such  intention  upon  the parties.
    The notice will include a statement  of issues  to be  briefed  by  the parties
    and a time schedule for the service  and  filing of  briefs.
    22.30(b)
    RCRA Compliance/Enforcement               7-58           Guidance Manual 1984
    

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    Chapter Seven   	                     Post-Bearing Stage
    Scope of Review
    
    The appeal  of  the  initial  decision oust  concern only those issues raised by
    the parties  in the  previous  proceeding.
    22.30(e)
    Oral Argument on Appeal
    
    Oral argument on appeal  is  not  automatic  and  may be granted only if a party
    makes a request to  the Administrator  or the Administrator  orders it sua
    sponte.  In assigning a  time  and  place for oral  argument,  the Administrator
    must consider the convenience of  the  parties.  There are no standards
    specified in the CROP for deciding whether oral  argument should be heard.
    22.30(d)
    Final Order
    Timing and Content
    
    The Administrator is required  to  issue  a  final  order  as  soon as  is
    practicable after the  final action  of the appeal  process—either after
    filing of appellate briefs, filing  of subsequent  briefs  if ordered by the
    Administrator, or oral argument,  whichever occurs last.
    22.31
    
    The Administrator may, in  the  final order:
    
         •  Adopt, modify, or  set  aside all or some of  the  findings  and
            conclusions contained  in  the initial  decision or order;  and
    
         •  Increase or decrease the  recommended  penalty  unless the  initial
            decision is a  default  order (in which case  the Administrator  may
            not increase the recommended penalty).
    
    The CROP requires the  final order to contain  the  reasons for any decision
    that the Administrator makes.
    Motion To Reconsider and Stay Request
    
    A party may file a motion  to reconsider  a  final  order  within  10  days  after
    service of the final order.  A motion  to reconsider must  set  forth  the
    matters claimed to have been erroneously decided and the  nature  of  the
    alleged errors.  The motion may also include  a request that the  final order
    be stayed pending a resolution of  the  motion  to  reconsider.   Unless such a
    request for stay is granted, however,  the  effective date  of the  final order
    is the date on which it was issued, unless otherwise ordered  by  the
    Administrator.
    22.32
    RCRA Conpliance/Enforcesent               7-59           Guidance Manual 1984
    

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    Chapter Seven
                    Post-Hearing Stage
    Appeal From Sinai Order
    
    A party may appeal the findings of  the  final  order  to  a  United  States  court
    of appeals.  The obligation to pay  the  civil  penalty does  not become due
    until Che party has exhausted all appeals.
    Payment of Penalty
    The.payment of the civil penalty specified in a  final  order  of  the
    Administrator is due and payable in full within  60  days  after  the
    respondent receives the final order, unless otherwise  agreed by the
    parties•
    RCRA Compliance/Enforcement
    7-60
    Guidance Manual 1984
    

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    Chapter Eight
    Judicial  Enforcement:   Civil  Actions
    Chanter Concents
                                Page
     1   Introduction
        Statutory Authority
                                 8-1
    
                                 8-1
        Elements  of a Violation;  Civil
    
        Evidence  in Support of Civil Actions
        Use of Expert Witnesses
                                 8-3
    
                                 8-3
                                 8-5
        Procedures for Filing Actions
    
        Exhibit  8-1:  Model Civil Litigation Report
                     Outline and Guide
                                 8-7
                                8-10
        Injunetive Actions
    
        Section 3008(a) Injunctions
        Section 3013(e) Injunctions
        Section 7003(a) Injunctions
        Section 7003(b) Injunctions
        Procedures for Seeking  Injunetive  Relief
        Court Actions on Motions for Injunetive Relief
        Exhibit 8-2:  Model Motion for Temporary
                     Restraining Order
        Exhibit 8-3:  Model Motion for Preliminary Injunction
        Exhibit 8-4:  Model Affidavit in Support of Motion
                     for Preliminary Injunction
        Exhibit 8-5:  Model Motion for Permanent Injunction
        Exhibit 8-6:  Guidelines for Enforcing Federal  District
                     Court Orders
                                 8-19
    
                                 8-19
                                 8-20
                                 8-21
                                 8-22
                                 8-23
                                 8-26
    
                                 8-27
                                 8-28
    
                                 8-29
                                 8-30
    
                                 8-31
     5   Settlement Agreements
    
        Contents of the Settlement Agreement
                                 8-39
    
                                 8-39
     RCRA Compliance/Enforcement
    8-i
    Guidance Manual- 1984
    

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    Chapter Eight      	                            Contents
    RCRA Compliance/Enforcement          8-ii                Guidance  Manual  1984
    

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    Chapter Eight
    1     Introduction
     In addition  to administrative enforcement responses, the Administrator may
     initiate  civil Judicial actions under RCRA's federal enforcement and
     imminent  hazard provisions*  Such civil judicial actions may be used to
     compel  compliance with the Act's statutory and regulatory requirements as
     well as to assess civil judicial penalties in cases of noncompliance.  As
     was previously discussed in Chapter Five, the choice of whether to pursue
     an administrative vis-a-vis judicial remedy must be made on a case-by-case
     basis.  Generally, however, where one or more of the following factors are
     present,  a civil Judicial action is preferrad to the issuance of an
     administrative order:
    
         •  Where a person has failed to comply with an administrative order;
    
         •  Where a person's conduct must be immediately stopped to prevent
            irreparable  injury, loss, or damage to the environment;
    
         •  Where long-term conduct by a person needs to be compelled; and
    
         •  Where notoriety of the 'action is necessary to deter others
            similarly situated from violating the requirements of the Act.
     Statutory Authority
     The  use  of  RCRA  civil  judicial actions is authorized by the following
     sections of the  Act.
    
     Section  3008(a)  provides  that, as an alternative to the issuance of an
     administrative order,  the Agency may commence a civil judicial action in a
     United States district court  for appropriate relief, including a temporary
     or permanent injunction,  if the Administrator determines that any person is
     in violation of  any requirement of Subtitle C of the Act.  Such an action
     must be  filed in the United States district court for the judicial district
     in which the violation occurred.
    
     Section  3013(e)  authorizes the Administrator to commence a civil judicial
     action against any person who fails or refuses to comply with any order
     issued under Section 3013.  A Section 3013(e) action must be brought in the
     RC','A Compliance/Enforcement           8-1               Guidance Manual 1984
    

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    Chapter Eight	Introduction
    United States district court in vhich the defendant is .located,  resides, or
    is doing business.  The court has  the jurisdiction  to compel  compliance
    vith the Section 3013 order and to assess a civil penalty  not  to exceed
    $5,000 for each day during which such failure or refusal occurs.
    
    Section 7003(a) gives the Administrator the authority to bring suit  in an
    appropriate district court for injunctive relief upon receipt  of evidence
    chat any person's handling, storage, treatment, transportation,  or disposal
    of any solid vaste or hazardous waste may present an immiment  and
    substantial endangerment to health or the environment.*
    
    Section 7003(b) provides that any  person who willfully violates, or  fails
    or refuses to comply with, any Section 7003(a) administrative  order  may, in
    an action brought in an appropriate district court  to enforce  such order,
    be fined not more than 35,000 for each day in which such violation occurs
    or such failure to comply continues.
       Note that under Section 7003(a)  the Administrator  may,  in  addition  to
       instituting a judicial action, issue  such  administrative orders  as  may
       be necessary to protect public health and  the  environment.
    RCRA Compliance/Enforcement          8-2                 Guidance Manual 1984
    

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    Chapter Eigrtf
    2    Elements of  a  Violation
    Evidence in Support of Civil Actions
    Competent evidence is necessary  to support each element of a civil  cause of
    action.  Such evidence is that which can be presented to a court  in
    accordance with the Federal Hales of Evidence.  Therefore, before a civil
    action is filed, each element of the offense should be reviewed,  and  there
    should be sufficient competent evidence to support each element of  the
    violation.*
    
    Below follows a list of general  evidentiary showings that should  be met
    before undertaking a civil judicial action under RCRA.**
    General Requirements for Civil Actions (Injunctive Actions***)
    
    Traditionally, courts have required  the petitioner or plaintiff  to make the
    following showings before permanent  injunctive relief would be
            There is no adequate  remedy at law (e.g. , money damages  arvl ot'vsr
            penalties are not adequate to "right the wrong" because  they will
            not mitigate the environmental hazard caused by the  defendant's
            conduct);
     *    In addition, care must be  taken to avoid the assumption that  certain
         obvious matters can be easily established at trial.  Examples of  these
         mat tar3 are the existence  of a corporation, the ownership of  a  piece
         of property, the hazardousness or flammability of a chemical, And  the
         concentration or toxicity  level at which a chemical is dangerous.
    
     **   Consult the RCRA/CERCLA Case Management Handbook for detailed
         elements-of-proof checklists for hazardous waste cases.
    
     ***  These actions may consist  of permanent injunctions, preliminary
         injunctions, or temporary  restraining orders.  These types of injunc-
         tions are discussed In -nore detail in Section 4 of this chapter.
    RCRA Compliance/Enforcement           8-3             Guidance Manual 1984
    

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    Chapter Eight   	Elements of « Violation:  Civil
         •  The applicable administrative remedies have been exhausted*;  and
    
         •  Irreparable injury,  loss,  or damage will result if the relief is
            not granted.
    
    Issuance of a preliminary injunction or temporary restraining order would
    require the following additional showings:
    
         •  Immediate and irreparable  injury,  loss,  or damage will result if
            the relief is not granted; and
    
         •  There is a likelihood of success at trial, based on facts  before
            the court.
    
    The above criteria have not, however, been uniformly applied by the various
    judicial districts.  While some jurisdictions have emphasized different
    aspects of the criteria, other courts have developed alternative tests that
    use some, but not all, of the elements listed above.  For example,  recent
    court decisions have indicated 'a relaxation in the requirement of  irrepar-
    able injury.  In particular, where a statute prohibits certain conduct,
    oany courts will presume the conduct to be injurious, thus warranting an
    injunction without the need  to show irreparable injury [see Bradford  v.
    SEC, 278 F.2d 566 (9th Cir.  I960)].  For this reason, an attorney  should
    research recent trends in the Jurisdiction in which the injunctive action
    is being sought to determine the appropriate criteria.
    
    The general requirements mentioned above for obtaining injunctive  relief
    apply primarily to civil actions sought under authority of Section 3008(a)
    of RCRA.  Notwithstanding the above criteria, civil judicial actions  based
    on Sections 3013(e), 7003(a), and  7003(b) require the following evidentiary
    showings.
    
    Section 3013(e);
    
         •  A compliance or reimbursement order has been properly issued  under
            Section 3013; and
    
        • •  The defendant has failed or refused to comply with the terms  of  the
            Section 3013 order.
       Note that in some situations this general requirement may not be appli-
       cable.  For example, RCRA Section 3008(a) states that, if the Adminis-
       trator determines that any person is in violation of any requirement  of
       Subtitle C of the Act, the Administrator may issue an administrative
       order ££ commence a civil Judicial action.  Therefore, exhaustion of
       administrative remedies need not be shown.
    RCRA Compliance/EnforcementIF3Guidance Manual 1984
    

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    Chanter Eight         	Kleaenta of a Violation;  Civil
    Section 7003(a):
    
         •  The Administrator has received evidence that the handling,  storage,
            treatment, transportation, or disposal of a solid or hazardous
            waste may present an Laainent and substantial endangertaent  to
            health or the environment; and
    
         •  The defendant is contributing to such handling, storage, treatment,
            transportation, or disposal of the solid or hazardous waste.
    
    Section 7003
    -------
    Chapter Bight	t      Elements of a Violation:  Civil
    RCRA Compliance/Enforcement          8-6               Guidance Manual  1984
    

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    Chapter Eight
    3    Procedures for Filing  Actions
     Requests for RCRA civil judicial  actions are referred to the Department of
     Justice or the appropriate United States Attorney's Office by the Assistant
     Adainistracor for OECM (or the Assistant Administrator's delegatee).*  In
     most  instances, the Regional Office will initiate the request for the
     action and will designate the lead Agency attorney.**  To request a civil
     action, the Regional Office prepares a referral package, which,  upon
     completion, is forwarded to OECM.***
    
     A referral package contains a referral memorandum and a civil litigation
     report:
    
     Referral Memorandum.  A referral  memorandum identifies the primary elements
     of the proposed litigation.  Specifically, the memorandum, at a  minimum,
     should include:
    
          •  Identification of the potential defendants;
    
          •  Brief factual summary of  the case;
    
          •  Identification of the major issues (including potential  problems
            that may exist with the case);
    
          •  Status of past Agency enforcement efforts; and
       *  The Regional Office has independent authority to refer requests for
         emergency temporary restraining orders under RCRA to the Department of
         Justice and the appropriate United States Attorney's Office.  When
         exercising this authority,  however, the Regional Administrator must
         notify the Assistant Administrator for OECM (or the Assistant
         Administrator's designee).
    
      **  Headquarters program and Enforcement Counsel staff may participate
         more actively in the case development process if precedential or
         nationally significant-issues  are involved.
    
     ***  For additional discussion of RCRA/CERCLA referrals, consult the
         RCRA/CERCLA Case Management Handbook.
     • CRA Compliance/Enforcement         8-7                Guidance Manual  1984
    

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    Chapter Eight	Procedures for Filing Actions
         •  Names.of Agencj and Department of Justice attorneys who are
            involved in the case, including the lead attorney.
    
    Civil Litigation Report.  In addition to the referral memorandum, the
    referral package must contain a litigation report, prepared by the
    designated lead EPA attorney.  (See Exhibit 8-1 for a complete outline and
    guide to preparing the report.)  The report must include a synopsis of the
    facts and history of the violation, including past violations by the
    potential defendant.  The report must cite the specific sections of RCRA
    and its regulations that have been violated.
    
    The report must show that all elements of the violation have been
    satisfied.  For each element, the report should indicate the available
    supporting evidence.  A copy of the necessary documentary evidence and a
    summary of the expected expert testimony should be attached to the
    litigation report.
    
    The lead attorney should include a statement regarding the specific relief
    to be sought (a.;., injur.ctive or civil penalty action).  The report should
    also include a list of any equities that may weigh against granting the
    relief sought by EPA; any expected defenses by the violator (and how they
    will be countered); and any past, anticipated, or pending state or federal
    actions (administrative or judicial) against the violator.  Where an
    injunction is requested, the report should discuss the likelihood that the
    violator would comply without the imposition of an injunction.
    
    Once the referral package is received by Headquarters, OECM attorneys will
    conduct a limited final legal review to ensure completeness and consistency
    in application of enforcement policy.  The case will then be transmitted to
    the Department of Justice or the appropriate United States Attorney's
    Office.  OECM will notify the Regional Administrator and the Assistant
    Administrator for Solid Waste and Emergency Response (or their designees)
    upon the transmittal of the civil referral.
    
    Following the referral of a case, the lead EPA attorney will be responsible
    for coordinating responses to all requests for supplemental information by
    the Department of Justice or the United States Attorney's Office.  The lead
    Agency attorney also will be responsible for keeping program officials and
    other previously involved Agency attorneys apprised of case developments
    after referral.
    
    Agency employees who are involved in the investigation and referral to the
    Department of Justice of RCRA civil judicial actions should familiarize
    themselves with the Agency documents listed below.  These documents are
    contained in EPA's General Enforcement Policy Compendium;
    
         •  Memorandum of Understanding Between the Department of Justice and
            the Environmental Protection Agency (6/15/77);
    
         •  Quantico Guidelines for Enforcement Litigation (4/8/82);
    
         •  General Operating Procedures for EPA's Civil Enforcement Program
            (7/6/82)
    RCRA Compliance/Enforcement              8-8           Guidance Manual 1984
    

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    Chapter
         .  case Re'ferrals for Civil Litigation (9/7/82); and
    
    
    
         .  Headquarters Review and Tr«*in, of Civil Referrals  (3/8/W);
        RCRA Compliance/Enforcement
                                                 8-9
                                                               Guidance Manual 1984
    

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    Chapter Eight
                             Exhibit 8-1
                  Model Civil Litigation Report Outline and Guide
      Title Page
    
      A.   Identify the facility by name and location and indicate  the parent
          company if different from the facility name.
    
      B.   Identify who prepared the report (both legal and technical
          personnel) indicating addresses and telephone numbers.
    
      C.   Show the date of completion/submission of the report.
      Table of Contents (Standardized Example;
    
      I.    Information Identifying -the Defendant(s)
    
      II.   Synopsis of the Case
    
      III.  Statutory Authority
    
      IV.   Description of Defendant's Business and
            Technical Description of the Pollution Source
    
            A.  Facility Description
    
            B.  Source of Pollution
    
            C.  Pollutants Involved;- Environmental Kara
                (Where Appropriate)
    
            D.  Available Control Technology and/or
                Remedial Action
                            Page
    
                            Page
    
                            Page
    
    
                            Page
    
                            Page
    
                            Page
    
    
                            Page
    
    
                            Page
    RCRA Compliance/Enforcement
    8-10
    Guidance Manual 1984
    

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    Chapter Eighc	Exhibit 8-1
      V.     Administrative and Enforcement History                 Page
    
      VI.   Required Elements of Proof and Evidence                Page
    
            A.  Elements of Proof                                  Page
    
            3.  Evidence of Violation                              Page
    
            C.  Evidence of Environmental Hara
                (Where Appropriate)                                Page
    
            D.  Discovery                                          Page
    
            E.  Evidence Favorable to Violator                     Page
    
            F.  Goverr.csnt Witnesses                               Page
    
            G.  Defense Witnesses                                  Page
    
            H.  Resource Needs                                     Page
    
      VII.  Relief Requested                                       Page
    
            A.  Preliminary Injunction                             Page
    
            B.  Standards To Be Met                                Page
    
            C.  Compliance Schedule                                Page
    
            D.  Stipulated Contempt Fines                          Page
    
            E.  Civil Penalties                                    Page
    
            F.  Necessary Bonds                                    Page
    
      VIII. Anticipated Issues                                     Page
    
            A.  Possible Defenses                                  Page
    
            B.  Equitable Arguments             .                   Page
    
            C.  Pending Related Administrative or  Court Action     Page
    
            D.  Other Issues                                       Page
    
            E.  Discussion of Any  Potential Practical
                Problem With the Case    .                          Page
    
      IX.   Litigation Strategy                                    Page
    
            A.  Need  for Preliminary Injunction                    Page
    RCRA Compliance/Enforcement              8-11            Guidance Manual 1984
    

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    Chapter Eight       	                                  Exhibit 8-1
            B.  Pocencial for Summary Judgment                      Page _____
    
            C.  Settlement Potential                                Page _^
    
            D.  Other Potential Defendants                          Page _____
    
    
      X.     Index of Attachments                                    Page _____
    
    
      XI.   Attachments                                             Page 	
    
            •  Copies of correspondence
            •  Copies of relevant regulated submissions
            •  Copies of relevant policy aiemos, regulations,  interpretations
    
    
      Body of the Report
    
      I.     Information Identifying the Defendant(s)
    
            A.  Legal name of company
    
            B.  Address:  Corporate headquarters
    
            C.  Name of facility (if different from  "A")
    
            D.  Address of facility (if different  from  "B")
    
            E.  SIC code
    
            F.  State of incorporation
    
            G.  Registered agent for service
    
            H.  Legal counsel (name, address, telephone number)
    
            I.  Judicial district in which violator  is  located
    
    
      II.   Synopsis of the Case
    
            This section should be a one- or  two-page articulation  of  the
            heart of the case.  It should describe both the violation  and  the
            proposed relief.  It should not describe statutory authority or
            intricate legal issues in detail.
    
            This succinct statement of  the case will provide  the  reader a
            framework in which to fit the details  developed and presented  in
            the body of the litigation  report.
    RCRA Compliance/Enforcement              8-12            Guidance Manual 1984
    

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    Chapter Eight     	Exhibit 8-1
            The factual basis of the case should  be  touched  upon.   Purely
            conclusory characterization of  the case  is  not as  useful  as
            showing the facts of a violation and  requested relief.  For
            example, it is better to say a  violator  discharged or  emitted X
            quantity of Y pollutant for Z days, than to  siaply say  that  the
            violator did not comply with the terms of a  permit,  State Imple-
            mentation Plan (SIP), or statute.
    
            The environmental seriousness of the  violation,  its  ongoing
            nature, and a violator's recalcitrance may be touched upon in
            this section (but will also be  developed later in  paragraph
      III.  Statutory Authority
    
            A.  Present the substantive  requirements  of  the  law and
                applicable regulations.  Reference  all  federal  statutes  by
                U.S.C. citation as well  as by  the section  of  the pertinent
                Act.  Summarize the enforcement  authority, jurisdiction,  and
                venue.  Specific elements of proof  are  to  be  addressed  in
                paragraph VI.
    
            B.  Lengthy dissertation on  the law  is  unnecessary.   However,  in
                the instance of State Implementation  Plans under the  Clean
                Air Act, or Water Quality Standards under  the Clean Water Act,
                or involvement of any other state law or regulation,  a  more
                extensive* explanation of the law or regulation  may be
                necessary.  Pertinent excerpts from any  applicable state
                laws or regulations.should be  identified and  attached to the
                litigation report.
    
            C.  Any prior interpretation of pertinent state  laws or
                regulations that are germane to  the case should be
                referenced when identifying the  law violated.  If a state's'
                interpretation of the law has been  different  from ours,  the
                issue should be discussed with the  state and  fully explained
                in this section of the litigation report.  (This section may
                then be referenced when  discussing  potential  defenses,  etc.,
                in paragraph VIII.)
    
            D.  List any other possible  theories of violation under  federal,
                state, or common law.
      IV.   Description of  the Defendant's  Business  and  Technical Description
            of the Pollution Source
    
            A.  Describe  the violating  corporation and  the particular
                division  or facility  in question.  Any  interesting corporate
                interrelationships or subsidiaries should be noted.
    R RA Compliance/Enforcement              8-13            Guidance Manual 1984
    

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    Chapter Eight      	                        Exhibit 8-1
            B.  Discuss the business of the corporation and/or  division,
                providing details about the facility  in question,  what  is
                produced, and what causes the pollution.  Emphasis should  be
                on the particular process that is causing the problem.   Plant
                and process should be thoroughly explained,  including  those
                outfalls or emission points not subject to  this  enforcement
                action.  Diagrams should be referenced and  attached  to,  or
                included in, the litigation report.   Photographs of  the
                source may be helpful.
    
            C.  Discuss the types of pollutants being discharged,  and
                potential health and environmental effects.  Although  the
                seriousness of the violation is not technically  a  requirement
                of proof in enforcement of certain statutes, it  is sometimes
                relevant to the assessment of penalties and  equitable
                relief.  For this reason, it should be discussed in  the  report
                although it will not-be the sole determinant of  whether  a
                case has prosecutorial merit.  The Department of Justice has
                suggested the following considerations in assessing  the
                seriousness of the violation:
    
                •  The discharge of  toxics or mutagens or carcinogens  is more
                   serious than the discharge of conventional pollutants;
    
                •  The discharge of  large quantities  of pollutants
                   is more important than the discharge of  small quantities;
    
                •  Bioaccumulative wastes posing long-term  threats are  more
                   serious than biodegradable wastes;
    
                •  The discharge of  pollutants in an  area not attaining
                   primary ambient air quality standards  is  more important
                   than discharges in an area not meeting secondary
                   standards;
    
                •  The discharge of  pollutants that directly and demonstrably
                   affect health or  the environment is more  than those  that
                   have no direct or obvious effect;
    
                •  Ongoing present violations that the government  seeks  to
                   stop are more important than episodic  violations  which
                   have ceased; and
    
                •  A defendant with  a history of violations  is  more  worthy
                   of attention than a first offender.
    
                If a case does not present obvious "serious" health  effects
                or environmental harm, but is compelling  for some  other
                reason (e.g., deterrence of continued, blatant  violations  of
                the law), this should be indicated.
    RCRA Compliance/Enforcement              8-14            Guidance Manual 1984
    

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    Chapter Eight          _____	         E*hlbit 8-1
                Discuss available methods of controlling the problem.
                Specify technology(ies) that will achieve the  imposed  limits,
                and indicate the time requirements for a schedule of
                compliance that considers time necessary for design,
                contracting, construction, and startup.  (This  is not
                inconsistent with EPA policy of not prescribing specific
                compliance technologies.  This information may be necessary
                in court to illustrate technical feasibility if requested  by
                the Judge.)
    
                Cost estimates should be included, to the extent known.
                Indicate the reliability of the estimates.  (Reference
                paragraph VII(E) as appropriate.)
      V.     Chronological Administrative History and/or Earlier Enforcement
            Actions (State and Federal)
    
            A.  Show all attempts to exact compliance or  impose sanctions
                administratively or judicially that have  been considered or
                taken.  A full historical chronology should be presented.
    
            B.  Indicate whether necessary notice pursuant to the  statutory
                requirements has been given to the violator prior  to
                initiation of court action.
     VI.   Required Elements of Proof and Evidence
    
            A.  List the necessary elements of proof  to establish  the
                violation under each statute involved.
    
            B.  Present a detailed, objective, factual analysis of  all  real,
                documentary, and testimonial evidence corresponding to  each
                necessary element of proof in paragraph VI(A) above.
    
                Indicate the location of all real evidence.
    
                Reference each item of documentary evidence as an  attachment,
                except where it is too voluminous (In which case indicate  Its
                present location).
    
                Identify all witnesses by name (indicating whether  lay  or
                expert), when indicating the import and substance  of  their
                testimony.  Complete addresses and phone  numbers of witnesses
                will be listed In paragraph VII(E) below.
    
            C.  Discovery.  Where evidence may be made available by
                discovery,  indicate:
    
                I.  The type of evidence anticipated;
    RCRA Compliance/Enforcement              8-15            Guidance  Manual 1984
    

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    Chapter Eight
                            Exhibit 8-1
                2.  The person or organization currently having  the
                    evidence; and
    
                3.  The type of discovery co be used.
    
                Assess the quality of the evidence.  Be objective.  Any  facts
                or circumstances that affect the strength of  the Agency's
                proof should be explicitly set forth.  The newness or oldness
                of evidence is relevant; the dependability of  testing
                techniques is important.  Any assumptions, and the reasons
                for them,  should be spelled out.
    
            D.  If establishing environmental ham is important  to the case,
                set forth the evidence of hann (as done in paragraph VI(B)
                for elements of substantive violation).
    
            E.  List all evidence favorable to the violator,  including test
                results that differ from EPA's.  Any relevant  fact that  may
                bear adversely on the government's contentions should be
                highlighted.  Defense witnesses, to the extent they can  be
                anticipated, should be listed in paragraph VI(G).
    
            F.  List all government witnesses alphabetically  with business
                address, and telephone number and home telephone number.
                Qualifications of experts should be given.
    
                All witnesses listed should have been consulted  and
                thoroughly Interviewed.  Paragraph VI(B) should  set out  in
                succinct fashion the actual facts and opinions to be included
                in the testimony.
    
            G.  List all defense witnesses anticipated, identifying their
                employment, expertise, etc.  The likely content  of their
                testimony should be set out in paragraph VI(E).
            H.  Indicate projected resource needs  (e.j
                etc.).
                 experts,  money,
      VII.  Relief Requested
    
            This paragraph should  include a comprehensive  "bottom-line"
            settlement position on all items of  relief  necessary,  including
            those set forth below.  If there are policy questions  or  conflicts
            associated with any requested relief, discuss  them.  This  section
            should be carefully detailed.  It will  be  relied upon  in
            determining the acceptability of any settlement offers/proposed
            consent decrees.
    
            A.  Preliminary injunction.
    
            B.  Standards  to  be met (interim and  final).
    RCRA Compliance/Enforcement
    8-16
    Guidance Manual 1984
    

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    Chapter Eight     	               Exhibit 8-1
            C.  Compliance schedule  for available  technology  with phasing,
                duration, etc. (Reference  paragraph  IV(D),  as  appropriate.)
    
            0.  Stipulated contempt  fines  in  conjunction  with  compliance
                schedule.
    
            E.  Civil Penalties.
    
                1.  Economic savings realized by the  violator  should  be
                    analyzed.  The EPA Civil  Penalty  Evaluation  form  should
                    be completed, discussed,  and attached.  Calculations
                    should be included as  Attachments.  This  section  should
                    include discussion of  all elements developed  under  EPA's
                    civil penalty policy,  including  ability of the company
                    to pay and recalcitrance.
    
                2.  Cocnenc on types of credits possible  (or  proposed by  the
                    violator), as well as  credits  considered  and/or allowed
                    for other similar violators (Including  municipal  POTWs).
    
                3.  If economic savings is not a relevant measure of  penalty
                    assessment, explain what  basis should be  used.
    
            F.  Necessary bonds.
    
                Witnesses necessary  to establish the  relief requested should
                be identified by name, address and telephone  number,  with a
                brief summary of the subject  of their testimony.
      VIII. Anticipated Issues
    
            A.  Possible defenses.
    
                (Analyze only defenses  that are  likely  to  be  presented;
                fanciful theories can be  ignored.)
    
                1.  Outline legal issues.  Attach legal memoranda  on  threshold
                    legal issues (e.g., Chapter  11 Reorganization)  or  col-
                    lateral legal action  asserted as a  bar  to  enforcement
                    litigation.
    
                2.  Outline factual issues.
    
            B.  Equitable arguments by  the violator  (e.g.,  EPA delay  in
                promulgating guidelines;  installation of  equipment  that  did
                not work; in compliance at its other facilities; emission
                standard to be revised; inability to finance; -economic
                constraints, etc.).  Any  past action, or  inaction,  or
                inaction, (not necessarily judicial  or  administrative) by a
                state or any EPA office that  the company  may  use as an excuse,
                or cite for reliance,   (e.g., promises  of  less stringent
                limits; agreement not to  sue, etc.).
    RCRA Compliance/Enforcement            t.8-17            Guidance  Manual 1984
    

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    Chaoter Eight	          Exhibit  8-1
            C.  Pendency of any action involving the violator or EPA on
                related issues in any court or administrative forum.
                (Reference paragraph V(A), as necessary.)
    
            D.  Other possible issues that might arise at trial.
    
            £.  Discuss any potential practical problems with the case.
    
    
      IX.   Litigation Strategy
    
            A.  Need for preliminary injunction.
    
            B.  Potential for summary judgment.
    
            C.  Settlement potential.
    
                 1.  Past contacts by EPA, the Department of Justice or the
                     United States -Attorney's Office.
    
                 2.  Present negotiating posture and assessment of potential
                     for settlement.  Include comparison of posture with
                     "bottom-line" settlement position from paragraph VII.
    
             D.  Other potential defendants.
    
             E.  Other pending actions against violator.
    
    
      X.    Index of Attachments
    
    
      XI.   Attachments
    RCRA Compliance/Enforcement             8-18           Guidance Manual  1984
    

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    Chapter Eigrtt
    4     Injunctive Actions
     Injunccive actions may be initiated under Che  authority of Sections
     3008(a), 3013Ce), 7003(a), and 7003(b)  of RCRA.
     Section 3008(a) Injunctions
     Criteria for Use
    
     Injunctive relief authorized by Section 3008(a)  of RCRA should be consid-
     ered when the Agency determines that a person is in violation of any
    •requirement of Subtitle C of RCRA and that either a Section 3008(a)
     administrative order would be ineffective in bringing about compliance or
     that an administrative order has been issued but noncompliance continues.
    
    
     Use of Section 3008(a) Injunctive Actions
    
     Injunctive relief authorized by Section 3008(a)  will generally be sought in
     those instances where administrative remedies are (or will be) ineffective
     because of the nature of the violation or the nature of the violator.
     Specifically, a permanent injunction should be considered when:
    
         •  The violator is recalcitrant and has demonstrated a history of
            noncompliance with administrative orders and, therefore, should be
            made subject to the contempt powers of a district court; and
    
         •  Irreparable injury, loss, or damage will result if relief is not
            granted.  "Irreparable" means that the damage cannot be undone once
            it takes place.
    
     A preliminary injunction or temporary restraining order should be
     considered when the following additional elements are present:
    
         •  Immediate and irreparable injury, loss,  or damage will result if
            relief is not granted.  "Immediate" is self-explanatory and is
            interpreted strictly; and
     •tCRA Compliance/Enforcement              8-19         Guidance Manual 1984
    

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    Chapter Eight	Injunetlve Actions
    
    
         •  There is likelihood of success at trial based on facts before the
            court (i.e.,  more than a 50-percent chance of winning at a trial
            based on facts before the court at the time of application).
    
    Pursuant to Section 3008(a)(2) of RCRA, notice must be given (prior to
    commencing a civil action for injunctive relief) to the state in which the
    violation occurred.  Such notice is required,  however, only if the state
    has interim or final authorization granted pursuant to Section 3006 of
    RCRA.
    Section 3013(e) Injunctions	
    
    
    Criteria for Use
    
    Injunctive relief authorized by Section 3013(e) should be considered  when-
    ever any person fails or refuses to comply with an administrative order
    issued under Section 3013(a), 30l3(b), or 3013(d).
    
    
    Use of Section 3013(e) In Junerive Actions
    
    Pursuant to Section 3013(a) of RCRA, the Administrator may issue an admin-
    istrative order requiring the owner or operator of a facility or site (at
    which hazardous waste is, or has been, scored,  treated, or disposed of)  to
    conduct such monitoring, testing, analysis, and reporting with respect to
    the facility or site as the Administrator deems reasonable.  The Adminis-
    trator, however, must first determine, upon the receipt of any information,
    that the presence of any hazardous waste at the facility or site or the
    release of any such waste may present a substantial hazard to human health
    or the environment.
    
    If the facility or site is no longer in operation and the present owner  or
    operator could not reasonably be expected to have actual knowledge of the
    presence of hazardous waste and of its potential for release, the Adminis-
    trator is authorized under Section 3013(b) to issue a Section 3013(a) order
    to the most recent previous owner or operator, of the site who could reason-
    ably be expected to have such actual knowledge.
    
    The Administrator is also authorized under Section 3013(d) of RCRA to:
    
         •  Conduct the required monitoring, testing, or analysis (or the
            Administrator may authorize a state or local authority or other
            person to carry out such activities) if the Administrator:
    
            —  Determines that the appropriate owner or operator would not  be
                able to conduct the monitoring, testing, analysis, or reporting
                to the satisfaction of the Administrator,
    
                Deems any such activities carried out by an owner or operator
                to be unsatisfactory, or
    RCRA Compliance/Enforcement          8-20              Guidance Manual 1984
    

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    Chapter Eight        	Injmctive Actions
            —  Fails to determine initially that there is an owner or operator
                who could reasonably be expected to have actual knowledge of
                presence of hazardous waste at the facility or site and of its
                potential for release; and
    
         •  Require, by order, the owner or operator referred to in Section
            3013(a) or 3013(b) to reimburse the Administrator or other
            authority or person for the costs of such monitoring, testing, or
            analysis.  However, no order may be issued for reimbursement of the
            costs of any action carried out by the Administrator that confirms
            the results of an order issued under Section 3013(a) or 3013(b).
    
    In addition to requiring compliance, a district court has jurisdiction
    under Section 3013(e) to assess civil penalties of up to $5,000 for each
    day during which the defendant fails or refuses to comply with a Section
    3013 order.
    Section 7Q03(a) Injunctions	
    
    
    Criteria for Use
    
    Injunctive relief authorized by Section 7003(a) of RCRA should be con-
    sidered when, notwithstanding any other provision of the Act,  there is
    evidence that the handling, storage, treatment, transportation, or disposal
    of any solid waste or hazardous waste may present an imminent  and substan-
    tial endangenaent to human health or the environment.
    
    
    Use of Section 7003(a) Injunctive Actions
    
    Where there is evidence that the handling, storage, treatment, transporta-
    tion, or disposal of any solid waste or hazardous waste may present an
    imminent and substantial endangerment to human health or the environment,
    the Agency may, pursuant to RCRA Section 7003(a), bring suit for injunctive
    relief against any person contributing to such handling, storage, treat-
    ment, transportation, or disposal to stop such activities or to take other
    action as may be necessary.  Such other action may include:
    
         •  Waste segregation and staging;
    
         •  Drum or bulk waste removal;
    
         •  Fencing and posting of signs;
    
         •  Soil excavation and removal;
    
         •  Groundwater and surface water monitoring;
    
         •  Purging and treating the groundwater;
    RCRA Compliance/Enforcement          8-21              Guidance Manual 1984
    

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    Chapter Eight   	    •	Injunctive Actions
    
    
         •  Waste encapsulizacion;
    
         •  Slurry wall installation;  or
    
         •  Any combination of the  above.
    
    There is, however, no statutory definition of  what constitutes  an "imminent
    and substantial endangerraent" to human health  or the environment.
    Nevertheless, case law has arisen in the area  and provides  a  good idea  of
    how courts view the phrase:
    
         •  The icminent and substantial endangeraent provision need  not be
            restricted to emergency situations. The authority  to act under
            such an endangenaent provision must occur early enough  to prevent
            the potential harm from materializing.  The risk of harm  must be
            imminent;  the harm itself need not be. [United States v.  Reilly
            Tar, 546 F. Supp.  1100, 1109-1110 (D.C.  Minn. 1982);  United States
            v. Prica.  683 F.2d 204, 211 (3rd Cir.  1982).]
    
         •  There must be a threat  or risk of harm;  no actual injury  need ever
            occur.  [United States  v .  Vertae Chemical Corp., 489  F. Supp. 870,
            835 (E.D.  Ark. 1980); Ethyl Corp. v. EPA. 541 F.2d  1, 18  (D.C.
            Cir. 1976).]
    
    Section 7003 has been used against owners and  operators of  both active  and
    inactive hazardous waste facilities, as veil as  against transporters and
    generators.  There is case law  indicating that past, off-site generators
    may not be liable under Section 7003 [see United States v.  A&F  Materials,
    et al., Civ. Act.'No. 83-3123 (So. D.  111. January 20, 1984)];  therefore,
    it would be advisable to add a  Section 106 CERCLA count to  all  complaints
    for injunctive relief using Section 7003 against generators.
    Section 7003(b) Injunctions
    Criteria for Use
    Injunctive relief authorized by Section 7003(b) of RCRA should  be  con-
    sidered when any person willfully violates,  or fails or refuses to comply
    with, any administrative order issued under  Section 7003(a)  of  the Act.
    Use of Section 7003(b) Injunctive Actions
    
    Under the Section 7003(a) imminent hazard provision of the  Act,  the
    Administrator is authorized to:
    
         •  Seek appropriate civil judicial relief;  and
    RCRA Compliance/Enforcement          8-22              Guidance Manual 1984
    

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    Chapter Eight       	Injunetive Actions
                                            i
    
         •  Issue (after notice to the affected state) such administrative
            orders as may be necessary to protect, public health and the
            environment.
    
    If any person willfully violates,  or fails or refuses to comply with a
    Section 7003(a) administrative order, the  Administrator may seek [pursuant
    to RCRA Section 7003(b)] injunctive relief to enforce the order.  In addi-
    tion, the violator may be fined not more than $5,000 for each day in which
    such violation occurs or such failure to comply continues.
    Procedures for Seeking Injunctive Relief	
    
    
    1.  Determine the Necessity for Injunctive Relief
    
         •  Regional Initiation.  The Regions generally make the initial deter-
            mination that an Injunction is necessary to restrain violations of
            RCRA or to prevent harm to humans or the environment.  The regional
            determination must be based on a careful weighing of the facts  of
            the violation, of the evidence available to document the severity
            of the violation, and of the criteria discussed above.
    
         •  Headquarters Initiation.  In some instances, Headquarters may be
            the initiating party when noncompliance with the terms  of the
            statute exists on a national level,' or the hazard to human health
            or the environment is of national significance (e.g., a Section
            7003(a) injunction).
    2.  Determine Type of Injunction To Be Sought
    
         •  Temporary Restraining Order (Exhibit 8-2).   A temporary restraining
            order (TRO), sometimes known as a provisional injunction,  is  used
            for immediate temporary relief prior to issuance of a preliminary
            injunction, or unless otherwise permitted by statute.
    
            The purpose of the TRO Is to preserve the status quo until a  motion
            for a preliminary injunction can be heard.   Its advantage  is  that
            it is the most expediently obtained form of injunctive relief.
            However, a TRO is limited in duration to only 10 days (although it
            can be extended an additional 10 days by the court).
    
            Rule 6S(b) of the Federal Rules of Civil Procedure  (Ted. R. Civ.
            P.) controls the procedural steps for obtaining a TRO.  Generally
            the attorney for the adverse party, if known (or if not known,  the
            adverse party itself), must be given oral or written notice of  the
            request for a TRO.  This requirement, however, is suspended if  (1)
            it is shown by specific facts that immediate and Irreparable  harm
            will occur before the adverse party can be  heard and (2) if the
            government attorney certifies in writing the efforts, if any, taken
    RCRA Compliance/Enforcement          8-23              Guidance Manual 1984
    

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    Chapter Eight 	Injunctive Actions
            to provide notice to the adverse party and the reasons supporting
            the claim that notice should not be required.  The facts demon-
            strating immediate and irreparable injury, loss,  or damage may
            appear either in a verified complaint or in a separate affidavit
            signed by an EPA employee other than the attorney for the case.
            Along with the motion for a TRO, a copy of the suggested TRO should
            be filed.
    
            When a TRO is granted without notice (i.e.,  ex parte), the motion
            for a preliminary injunction must be set for hearing at the
            earliest possible time.  The party who obtained the TRO must then
            proceed with the application for a preliminary injunction and if
            the party does not do so, the TRO will be dissolved by the court.
            If a defendant aoves to modify or dissolve a TRO, there must be a
            hearing and the Agency must be informed at least  two days before
            the hearing.
    
            Preliminary Injunction (Exhibit 8-3).  A preliminary injunction by
            its very nature is interlocutory, provisional, or temporary.  It is
            intended to preserve the status quo pending final determination of
            the action after a full hearing on the merits.  It is different
            from a TRO in that a preliminary injunction requires advance notice
            to the adverse party, and it can last longer than 10 days.
    
            Notice presumes a hearing and an opportunity to contest the motion
            for an injunction.  The applicant has the burden of establishing
            the right to injunctive relief.  To do so, it is  advisable to rely
            on more than affidavits (Exhibit 8-4) whenever possible.  Oral
            testimony should be available when and if necessary co substantiate
            the Agency's contentions.
    
            The court may order the advancement and consolidation of the trial
            on the merits with the hearing on the application for preliminary
            injunction.  Consequently, the government attorney should be
            prepared to go forward with the prosecution of the case when
            seeking a preliminary injunction.
    
            Permanent Injunction (Exhibit 8-5).  A permanent  injunction, also
            called a final or perpetual injunction, is generally unlimited in
            duration.  It is usually granted only after a full trial on the
            merits.  Consequently, the judgment granting a permanent injunction
            constitutes final disposition of the suit, although the judgment
            may be appealed to a circuit court.
    
            Mere passage of time will not dissolve a permanent injunction,
            unless the judgment itself so provides.  However, the prospective
            features of a final injunctive decree are subject to termination or
            modification by the court when warranted by changed conditions.
    RCRA Compliance/Enforcement          8-24              Guidance Manual 1984
    

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    Chapter Eight	Injunctive Actions
                                          i
    
    3.  Determine the Appropriate District Court Having Jurisdiction
    
        The Regional Office must determine which is the appropriate district
        court having jurisdiction over the violator.  An injunction operates
        in personam (meaning "against the particular person"),  so that the
        district court in which the motion is filed must have in personara
        jurisdiction over the party against whom the injunction is sought.
        Usually this means that the person or corporation who is the defendant
        must live or have a place of business within the state.  Furthermore,
        service of process, or the delivery of written notice,  is subject to
        the territorial limits of the state in which the district court is
        located unless otherwise provided for in a statute.
    
        In some instances, an injunction aay have an in rem  ("against the world
        at large") effect on property or items that are the  subject of the suit
        or that are within the court's in rea jurisdiction.   In ren jurisdic-
        tion may have a broader reach for serving process than  docs in
        personaa—it is easier to get "the thing" than it is "the person."
        These possibilities should be explored informally with  the appropriate
        U.S. Attorney before formal referral of the case file.
    
        The following specific jurisdictional requirements apply to injunctions
        sought under Sections 300S(a), 30L3(e), 7003(a), and 7003(b) of RCRA.
    
         •  Section 3008(a) Injunctions.  Injunctive actions that are based on
            Section 3008(a) of RCRA must be filed in the United States district
            court for the judicial district .in which the violation occurred.
    
         •  Section 3013(e) Injunctions.  Injunctive actions that are based on
            Section 3013 of RCRA may be filed in the district court in which
            the defendant is located, resides, or is doing business.
    
         •  Section 7003(a) and 7003(b) Injunctions.  Injunctive actions that
            are based on Section 7003 of RCRA may be filed in:
    
            —  The United States district court for the district where the
                handling, storage, treatment, transportation, or disposal of
                solid waste or hazardous waste that is the subject of the
                lawsuit occurred.
    
            —  The United States district court for the district in which the
                person who handled, stored, treated, transported, or disposed
                of solid waste or hazardous waste that is the subject of the
                lawsuit is found, resides, or transacts business.
    4.  Prepare the Referral Package
    
        See discussion in "Procedures for Filing Actions"  (Section 3)  in  this
        chapter.
    RCRA Compliance/Enforcement          8-25              Guidance Manual  1984
    

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    Chapter Eight      	Injunctive Actions
        Enter the* Referral in the Enforcement Docket System
    
        All civil judicial cases must be entered and tracked in the EPA
        Enforcement Docket System.  Guidance on docket procedures is contained
        in che March 8,  1984, memorandum entitled "Headquarters Review and
        Tracking of Civil Referrals," which is contained in EPA's General
        Policv Compendium.
    Court Actions on Motions for lajunctive Relief	
    
    
    If an injunction is granted, the following actions should ensue:
    
         •  Preparation for the Next Stage of the Proceeding.  If the court
            grants a motion for a preliminary injunction or TRO,  the  regional
            attorney in conjunction with the U.S. Attorney must begin prepara-
            tion for the next stage-in the proceeding, whether that be a  full
            trial on the merits or a more extensive and permanent type of
            injunction.
    
         •  Monitoring the Injunction.  Although it is the court's responsi-
            bility to monitor any equitable decree, including an injunction,
            the courts have limited resources and often encounter practical
            difficulties in monitoring compliance.  If the court does not ask
            the Agency to monitor the injunction, the Region should offer to
            assist the court in monitoring compliance with the injunction and-
            to report any violations of the injunction.  A violation  of an
            injunction may subject the party to a charge of contempt  of court
            or other remedies authorized by law.*
    
    If an injunction is denied, the Agency may either:
    
         •  Appeal the denial; or
    
         •  Accept the denial and pursue other legal remedies.
    
    In both instances, the Headquarters Case Development Officer (HQCDO)  should
    be consulted by the Regional Office to determine which course of  action to
    take.
    *  See EPA's April 18, 1984, "Guidelines for Enforcing Federal District
       Court Orders" (Exhibit 8-6).
    RCRA Compliance/Enforcement8-26              Guidance Manual 1984
    

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    Chapter Eight	Inhibit  8-2
                                            t
    
                    Model Motion for Temporary Restraining Order
                           United States District Court
    
                                     District of
      (Title of Action)                   Civil Action No.
                                          Motion for Temporary Restraining
                                          Order [With or Without Notice)
    
    
      Plaintiff, the Uniced States of America, herewith moves this court  to
      grant [*(!) forthwith and without notice to defendant or his or  her
      attorney] a temporary restraining order restraining defendant, his  or  her
      agents and employees from (set forth acts sought to be enjoined)
      pending a hearing and disposition of plaintiff's motion for a
      preliminary injunction on Che'grounds that immediate and irreparable
      injury, loss, or damage will result to (*(2) the plaintiff, the  public,
      the environment] as set forth in the attached affidavit of (name of
      affiant)  (*(3) before notice can be given and before defendant or his
      or her attorney can be heard in opposition, as certified to by the
      undersigned].
    
                                   (Signature of U.S. Attorney)	
                                 United States Attorney  for  the
    
    
                                               District  of
      Date
      * (l)iO)    — These statements are optional  depending upon  whether  or
                      not  the defendant or his  or her  attorney  receives
                      advance notice of the  request  for  a TRO.
    
      * (2)        — The  victim of  the alleged injury can .be best  determined
                      from the actual  facts  of  the case  at hand.
    RCRA Compliance/Enforcement              8-27            Guidance Manual 1984
    

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    Chapter Eight
                              Exhibit 8-3
                       Model Motion for Preliminary Injunction
                            United States District Court
    
                                      District of
       (Title of Action)
    Civil Action No.
                                          Motion for Preliminary Injunction
      Plaintiff,  the United States of America, herewith moves this court for a
      preliminary injunction enjoining the defendant (name of defendant), his
      or her agents, servants, employees, and attorneys and all persons in
      active concert and participation with the defendant pending the final
      hearing and determination of this action, from (set forth act or acts
      sought to be enjoined) on the' grounds that:
    
         (1)  Unless restrained by this court, defendant will perform the acts
              referred to;
    
         (2)  Such action by the defendant will result in immediate and
              irreparable injury,  loss, or damage to (the plaintiff, the
              public interest, or the environment), as appears in the
              verified complaint and the affidavit of (name of affiant),
              attached hereto; and
    
         (3)  The issuance of a preliminary injunction herein will not cause
              undue inconvenience or loss to defendant, but will prevent
              immediate and irreparable injury to the plaintiff.
                                           (Signature of U.S. Attorney)
                                          United States Attorney for the
                                                      District of
      Date
    RCRA Compliance/Enforcement
       8-28
    Guidance Manual 1984
    

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    Chapter Eight	_	Kafaiblt  8-*
                                            i
    
          Model Affidavit in Support of Motion for Preliminary Injunction
                           United States District Court
    
                                     District of
      (Title of Action)                   Civil Action No.
                                          Affidavit in Support of Motion  for
                                          Preliminary Injunction
    
      (Naae of Affiant), being duly sworn, deposes and says:
    
      (1)  The United States of America, plaintiff in the above-entitled
           action, mak.es this affidavit in support of plaintiff's motion
           for a preliminary injunction.
    
      (2)  This is an action [to enjoin defendant from engaging in any
           violation of the Resource Conservation and Recovery Act, 42 U.S.C.
           §6901 et seq., or an action otherwise authorized by the Act].
    
      (3)  [Statement of facts to support the motion].
                                                 (Signature of affiant
                                                 other than EPA attorney)
           Subscribed and sworn to and before me at (City and State)
           	this 	day of 	, 19
                                           (Signature of attesting official
                                           other than EPA attorney)	
    RCRA Compliance/Enforcement               8-29           Guidance Manual  1984
    

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    Chapter Eight	      Exhibit 8-5
    
                                          i
                       Model Motion for Permanent Injunction
                           United States District Court
    
                                     District of
      (Title of Action)                   Civil Action No.
                                          Motion for  Permanent  Injunction
      Plaintiff,  the United States  of America,  herewith moves  this  court  to
      make permanent the preliminary injunction issued  herein  on  (date).   In
      support,  plaintiff submits (the opinion of the  court)  which is  conclu-
      sive to the effect that the (behavior or activity of  the defendant)
      is unlawful and no additional evidence could  alter that  result.
        [Optional:   (I)  Counsel may also  want  to  include  a  paragraph  moving
                         the court to enter the mandate  of a higher  court,
                         if the grant of  injunction has  been unsuccessfully
                         appealed.]
    
        [Optional:   (2)  Counsel may also  find  it  necessary  to  include a
                         motion either for the  dismissal of  defendant's
                         counterclaim or  for the grant of  summary  judgment
                         as to the counterclaim.]
                                            (Signature  of  U.S.  Attorney)
                                          United States Attorney  for  the
                                                    District  of
      Date
    RCRA Compliance/Enforcement         8-30               Guidance Manual  1984
    

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    Chapter  Eight           	     .	Zathibit  8-6
                            Guidelines  for Enforcing Federal
                                  District Court Orders
                   j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                    WASHINGTON. O.C. 204*0
                                      APR 18 S34
            MKMORANDfM
            SUBJECT:  Guidelines tor Enforcing Federal District Court Orders
            FROM:     Courtney «. Price (_|t_n"Z..-"  /'"jTg'U^.
                      Assistant Administrator Cor enforcement
                        and Compliance Monitoring
            TOi       Assistant Aduiniatrators
                      General Counsel
                      Inspector General
                      Regional Administrators
                      Regional Counsels
                 Attached please Cind the most, recent addition to the General
            enforcement Policy Compendium entitled 'Guidelines for Enforcing
            Federal District Court Orders In environmental Cases.*  The
            document emphasises the very high priority we- attach to preserving
            the  integrity of court order* to enable the Agency to maintain its
            credibility with the courts, the public, and the regulated community
            so as to achieve environmental objectives.  If you have any
            questions concerning this guidance, please contact Glenn Unterberger.
            Director of the Office of Legal and Enforcement Policy.  He may
            be reached at (FTS) 382-4541.
            Attachment
            cc:  Assistant Attorney General for Land and Natural Resources
                 Chief, Environmental enforcement Section, DOJ
    RCRA Compliance/Enforcement          8-31                 Guidance Manual  1984
    

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    Chapter Eight	Exhibit  8-6
                   GUIDELINES FOR ENFORCING FEDERAL DISTRICT COURT ORDERS
                                   IN ENVIRONMENTAL CASES
                 This guidance emphasizes the importance of enforcement of
             Federal district court orders that embody either consensual or
             nonconsensual resolutions of environmental enforcement  litigation.
             It establishes uniform Agency objectives in preparing for and  in
             responding to violations of court orders.  The goal of  this
             initiative i» to minimize the number of  violations  of court
             orders and to facilitate enforcement efforts when such  violations
             are detected.  Recently, the Agency developed the Consent Decree
             Tracking System which will provide a centralised data ba«e and
             reporting systen to upgrade consent decree enforcement.   Ultimately,
             the lists of 'significant violators* maintained in  each  program
             area should indue* all significant violations of court  orders.
                 EPA places a very  high  priority on enforcement  of  court  orders.
             This policy ensures  that defendants meet the requirements  of each
             court order in order to achieve  the objectives  of the  underlying
             civil action.   Moreover, vigorous  enforcement of court orders is
             essential  to enable  the Agency to  maintain its  credibility with
             the courts, the public, and the  regulated community, and to  achieve
             the desired environmental objective.
                 This  guidance  specifically  applies  to the  enforcement  of  consent
             decrees and noneonsensual  orders  entered in Federal  district  court
             that remedy violations  of  any of  EPA's  laws or regulations.   It
             also covers the following  areas:
    
                   — Drafting court orders to  ensure enforceability.1
    
                   — Selecting responses to  violations of consent  decrees
                       and  other court  orders.
    
                   — Considering other  procedures  in implementing  an
                       enforcement response.
             I/ Additional  guidance on  drafting  enforceable  consent  decrees
                can be found in Agency  policy  entitled,  'Guidance  for  Drafting
                Judicial  Consent Decrees*  (General  Enforcement  Policy  Compendium,
                GH-17, dated 10/19/83).
    RCRA  Compliance/Enforcement          8-32                 Guidance Manual 1984
    

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    Chapter Eight                .	        Exhibit 8-6
             Drifting  Orders  to  Ensure Enfareeability
    
                  EPA  should  obtain  terms  that  are  legally  enforceable  tn
             negotiating a  consent decree  or writing an order at  the request
             of  the  court.  The  order should provide for reasonable  methoda
             for aonitoring compliance with the order's requirement* and should
             establish adequate  incentives for  compliance.
    
                  Careful  elimination of  areas for future  dispute can
             facilitate enforceabxlity.  Requirements in the  order should
             be  clear, understandable, and should avoid any possible
             ambiguities.   The order should both clearly require  compliance
             with the  applicable regulations and establish  the method or
             procedure that will be  used to determine compliance.  In some
             cases,  it aay  be appropriate  to specify the pollution control
             technology to  be vised.   In no event, however,  should the order
             deea compliance  to  sean anything but compliance  with the
             applicable legal requirement.
    
                  In every  case, the obligation to  comply must rest  solely
             with the  defendant.  Provisions that operate to  'excuse* non-
             compliance,  e.g., a force majeure  clause,  should be  narrowly  and
             explicitly drawn.*   The order should avoid any ambiguities
             regarding the  defendant's compliance obligations associated with
             revisions to the underlying requirements.   If  the litigants
             expect  future  legislative or  regulatory changes  to the  underlying
             requirements,  the court order must clearly establish the procedures.
             that would change the order's compliance obligations.   The order
             should  provide that revision  to the underlying requirement does
             not excuse noncompllance with the  terms of the order unless and
             until the court  amends  the order.
    
                  The  order should establish explicit compliance  verification
             procedures.  Because Inspections are likely to be more  objective
             thart self-monitoring, the order should provide authority for  EPA
             to  conduct Inspections'  at 'reasonable times.  Zf  resources will
             not permit detailed inspections, by EPA or State  or local
             authorities, some alternative font of  compliance verification
             (e.g.,  self-monitoring, self-reporting, third-party  verification)
             should  be required.  In such  cases, the order  should require  the
             defendant to conduct compliance tests  at its own expense on the
             basis of  the test method* established  in the order.  In addition.
                Economic hardship  should  not  be  established as  a  force ma jeure
                event..  Instead, the  defendant suffering  the hardship should
                petition the  court for  a  modification  of  the order.  See,
                Federal Rules of Civil  Procedure Kule  60.   EPA  should oppose
                such petitions unless the defendant convincingly  demonstrate*
                extreme circumstances that justify  modifications  to  the  order.
    RCRA Compliance/Enforcement          8-33                 Guidance Manual  1984
    

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    Chapter Eight
                                                                            Exhibit  8-6
                                           -3-
            the order should provide for prior notice to EPA to enable the
            Agency to observe the test or other critical event.  However,
            the order should always preserve EPA's authority to inspect? or
            otherwise obtain information on its own, and should also provide
            for inspections by EPA contractors.
    
                 Compliance verification requirements should not be more
            burdensome to the defendant than is necessary to determine
            compliance.  EPA should carefully review each report that the
            defendant submits to verify that it includes all of the information
            that the order requires.  The order should provide that the
            information used iy defendants to generate seli-rtjarts aust te
            retained for a reasonable period of time, and tnat SPA must have
            access to such information during that period a/! tiae.  A provision
            which establishes that self-monitoring and third party verification
            information is admissible in proceedings to enforce the order is
            highly desirable.
    
                 To facilitate verification of compliance with penalty payment
            provisions, the Regional Office must ensure that, at a minimum,
            it receives notice when penalties that are due have been paid.
            The Regional Office should maintain organised record* indicating
            penalty collection dates.
    
                 tt is essential to include in court order* the mechanisms
            necessary to assure compliance with the terms of those orders.
            Such mechanisms may include stipulated penalties, posting and
            forfeiture of performance bonds or letters of credit, suspension
            of operation, increased reporting requirements, and advance
            approval from EPA for certain activities.  Regional Offices
            should determine appropriate mechanisms on a case-by-case basis
            taking into account the factors described below.
    
                 The compliance mechanism* should be strong enough to deter
            noncompliance by, for example, removing the economic incentives
            for noncompliance, yet flexible enough to deal equitably with
            the possible range of future violations.  The force maleure
            clause and prudent exercise of prosecutorial discretion are the
            proper mechanism* for providing flexibility.  In addition, the
            compliance incentive provision* should not be excessive although
            stipulated penalties should permit assessments which are large
            enough to take into account that the violator of a court order
            is, by definition, a recividist or a recalcitrant and, therefore,
            in ne*d of more serious Incentive to comply.
    
                 The order should expressly provide that the compliance
            mechanism* therein are not the exclusive remedies available to
            the government.  This type of provision preserves the government's
            ability to seek civil or criminal contempt penalties, specific
            performance of compliance provisions, and such other relief
            as the government may deem appropriate tc obtain final compliance
            or to provide adequate deterrence against future violations.
     RCRA Compliance/Enforcement
    8-34
    Guidance Manual 1984
    

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    Chapter Eight           	         Exhibit 8-6
                                            -4-
    
    
                  Court  orders  should generally require the  defendant to
             maintain and be  able  to demonstrate compliance  tor a specified
             period of time after  the initial demonstration  of compliance.
             This requirement ensures that the defendant is  likely to remain
             in compliance.   This  provision should be  consistent with the
             order's termination clause.
    
                  Finally• the  order should explicitly state that it  is  binding
             on subsequent owners,  operators,  assignees, and other successors
             in interest in the facility.   The order should  require that these
             successors,  etc.,  receive notification of the existence  of  the
             court order. The  order should also require notification to SPA
             of any transfer  of interest.
    
             Selecting Keapenaes to Violations of Court Orders
    
                  The primary objective.* of enforcement of court orders  are to
             correct the violation expeditiously,  deter future violations  by
             the defendant and  by  the regulated community, and preserve  the
             Integrity of court ordered remedies so as to achieve the desired
             environmental protection objective.  Response*  to violations
             must be prompt and firm to reflect the importance which  EPA
             attaches to the  court, ordered requirements.
    
                  The government may pursue a range of remedies to address
             violations  of court orders.   These remedies include specific
             performance of the order's requirements (e.g.,  through a motion
             to enforce  the order),  additional specific performance requirements.
             stipulated  monetary penalties, civil and  criminal contempts,
             contractor  suspension and debarment proceedings in appropriate
             eases involving  the Clean Mr Act or the  Clean  Hater Xct, and
             revised or  extended compliance schedules  (in the limited circumstances
             described below).   These remedies may be  used individually  or  in
             combination.
    
                  The government must weigh several factors  in deciding  upon
             the type and extent of relief to pursue.   The chief factors are
             the environmental  harm or risk caused by  the violation,  the
             degree of willfulness or negligence displayed by the defendant,
             the degree  of economic benefit accruing to the  defendant from  the
             noncomplying behavior,  any attempts to mitigate the violation, the
             deterrence  value of the response, and the likelihood that the
             response will remedy  the violation.  It is also appropriate to
             consider the defendant's history of noncompllance and any
             extraordinary costs borne by  the public.   In addition, and
             as a secondary consideration, the government must assess the
             resource implications of the  enforcement  response.
    RCRA Compliance/Enforcement          8-35                 Guidance Manual  1984
    

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    Chapter Eight      	    •	Exhibit  8-6
                                           -5-
    
    
                 All responses oust require compliance with the order's
            terns as quickly as possible.  This requirement includes initiation
            of postjudgment proceedings to collect civil penalties originally
            imposed in the decree for the underlying violation if the defendant
            has failed to pay such penalties.  Collection should be for the
            full penalty amount.
    
                 Responses to violations of court orders typically should be
            •ere severe than those which the government normally would seek
            for a comparable initial violation of a statute, regulation, or
            administrative order.  Absent a convincing demonstration by the
            defendant of situating circumstances, the government typically
            snould pursue significant monetary penalties unless the violations
            are clearly de mininla.  Penalties must remove any appreciable
            economic benefit accruing to the violator.  In addition to recouping
            economic benefit, the penalties should reflect the recidivistic
            or recalcitrant behavior of- .the defendant.  The case file must
            include an explanation of why the case managers have decided to
            pursue a particular penalty figure or no penalty.
    
                 The government should seek imposition of specific relief
            beyond that already required in the. court order when necessary to
            provide adequate assurances of future coepliance.   Factors to
            consider in determining the need for such assurances are the like-
            lihood of future violations, the environmental harm or risk which
            a  future violation would be likely to pose, and the government
            resources involved in monitoring compliance with the additional
            requirements,   examples of further specific relief include more
            stringent reporting requirements, advance EPA approval of relevant
            activities by the defendant, temporary or permanent shutdown of
            violating facilities, more stringent operation and maintenance
            obligations,  and posting of revocable or irrevocable letters of
            credit or performance bonds.
    
                 Normally,  the government should avoid agreeing to extensions
            of compliance schedules without pursuing significant monetary
            penalties.   Extensions without penalties typically should be
            limited to cases in which the defendant can prove  that the violation
            was caused by circumstances falling squarely within the force
            maieure clause  of the order.  Moreover, an extension without
            penalties is  permissible only if the extension poses limited
            environmental harm or risk, and a substantial public Interest
            basis exists  for extending the deadline.  Extensions of compliance
            schedules must  set realistic timetables for compliance aimed at
            securing compliance as quickly as possible.  In any event,  the
            defendant must  continue to otherwise comply with the order.
    
                 The government should also consider the possibility of
            criminal contempt under the provisions of 18 U.S.C. S 401(3)
            In situations  of aggravated noncompliance with consent decrees
            for which punishment is a legitmate objective of an enforcement
    RCEA  Compliance/Enforcement          8-36                 Guidance Manual 1984
    

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    Chapter Eight            	,	Sihibit 8-6
             response,   factors to be considered in determing the appropriate-
             ness of  criminal  sanctions includes  (1)  the scope and duration
             of  the noncoitpliance involved in the violation of the consent
             decreei  (2)  the environmental contamination or human health
             hazard resulting  from that noncompliance; (3) tne willfulness of
             the violation (in a criminal  contempt action the government mutt
             show that  the violation was willful and deliberate)] (4)  any
             falsification activity involved in the noncompliance (i.e.,
             misrepresentation by the party subject to the consent decree
             concerning compliance with that consent decree): (S) the  ability
             of  the party that is subject  to the consent decree to achieve
             compliance)  and (() the evidence of motivation for the noncompliance.
    
                  Hhen  dealing with deliberate nonconpliance with a civil
             consent  decree, one is by definition dealing with a corporation
             or  individual that has already gone through less severe enforcement
             actions  which have proven -ineffective.  The potential for using
             criminal contempt should, therefore, be considered in all
             significant  esses of noncompllsnce with judicial consent  decrees.
    
             Other Hatters To  Consider In  Implementing An Enforcement  Response
    
                  The government should make every effort to coordinate enforcement
             responses  with any governmental co-plaintiff.  If no satisfactory
             agreement  is possible, EPA must still fulfill its mandate to enforce
             environmental laws.  Similarly, the government should give careful
             consideration to  the enforcement concerns of private co-plaintiffs',
             particularly regarding final  settlements.  Even if the private
             party's  role is limited to commenting on the settlement,  the
             government should carefully consider such comments.
    
                  The government should establish a timetable for responding
             to  a violation which reflects the high priority E?A places on
             enforcement  of court orders.   The timetable should take into
             consideration the nature of the violation, the need, if any, to
             take immediate action, the sufficiency of the available proof,
             and the  complexity of the potential enforcement litigation.  In
             uncomplicated cases that do not present an emergency to the public
             health or  environment snd. absent time requirements specifically
             imposed  by the court order, the Regional Office should attempt
             to  develop and refer the case to Headquarters within 45 days from
             the date the violation was detected.  Headquarters and the Justice
             Department should process cases according to .the timetable
             established  In the September  29, 1913, agreement between  the E?K
             Deputy Administrator and the  Assistant Attorney General for
             Land and Natural  Resources.
    
                  Any consent  decrees and  modifications to consent decrees must
             be  in writing and signed by the Assistsnt Administrator for the
             Office of  Enforcement and Compliance Monitoring and the Assistant
             Attorney General  for Land and Natural Resources.  Attorneys must
     Rf A Compliance/Enforcement          8-37                 Guidance Manual 1984
    

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    Chapter Eight	'                 	Exhibit 8-6
                                           -7-
    
    
            •ake clear to the defendant that the government requires such
            signatures to legally bind the Onited States notwithstanding
            recosnendations of acceptance of the tents ot the document by
            the government negotiators.
    
                 The policies and procedures set forth in this document are
            intended solely for the guidance of governaent personnel.
            They are not intended and cannot be relied upon to create  any
            rights, substantive or procedural, enforceable by any party in
            litigation with the United States.  The Agency reserves  the
            right to act at variance with these policies and procedures and
            to change them at any tine without public notice.
                                              Courtney M.  Price
                                         Assistant Administrator for
                                     Enforcement and Compliance Monitoring
    RCRA  Compliance/Enforcement          8-38                 Guidance Manual  1984
    

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    Chapter Eigbt
    5    Settlement Agreements
    Civil judicial actions are often settled prior to  trial by consent of the
    parties.  Such settlements normally take the form  of negotiated consent
    decrees.*
    Contents of the Settlement Agreement
    The contents of any consent decree, are a critical  factor*for ensuring that
    the goals of the Agency  in initiating the litigation have been met.  A
    well-structured agreement will provide clarity regarding the future rights
    and obligations of  the parties, will address reasonably foreseeable issues
    that may arise in the decree's implementation," and  will ensure the prompt
    and effective enforcement of the decree by EPA,  the Department of Justice,
    and the court.
    Outline of the Elements  of a Settlement Agreement
    
    Every consent decree negotiated by the Agency differs  in content because
    each decree embodies the results of a separate negotiating process and each
    deals with a different set of facts surrounding a given violation.
    Nevertheless, there are  elements common to most settlement agreements.  The
    following is a brief outline of elements that should be considered when
    drafting • consent decree.**
    *   Note that the following policies are being drafted  to provide further
        guidance on hazardous waste settlement agreements—"Interim CERCLA
        Settlement Policy"  and "Drafting Consent Decrees in Hazardous Waste
        Imminent Hazard Cases."
    
    **  For further discussion on consent decrees, consult  EPA's October 19,
        1983, "Guidance for Drafting Judicial Consent Decrees," which is
        contained in EPA's  General Policy Compendium, and EPA's April 18, 1984,
        "Guidelines for Enforcing Federal District Court Orders" (Exhibit 8-6),
        which addresses the drafting of proposed decrees to ensure
        enforceability.
    RCU Compliance/Enforcement         8-39               Guidance Manual 1984
    

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    Chapter Eight	Settlement Agreements
    I.  Prelimlnfry Statements.  Preliminary statements serve to establish a
    background for the agreement.  These statements illuminate the general
    intentions and purposes of the parties regarding settlement.  Although
    preliminary statements do not set forth the specific, substantive
    liabilities and rights of the parties, they are very useful if the
    substantive provisions of the agreement need clarification.
    
    Preliminary statements often include one or more paragraphs that provide:
    
         •  When the complaint and amendments to the complaint were filed;
    
       '  •  The statutory authority for the action;
    
         •  The parties to the agreement;
    
         •  The gravamen or alleged gravamen of the action.   To the extent that
            the parties can agree, important facts concerning the case should
            be stated.  These facts should include the conduct that constitutes
            violations of Subtitle C of RCRA or conditions that constitute *n
            endangernent to public health or the environment.  If a defendant
            will not agree to such facts, they should then be characterized as
            allegations by the United States; and
    
         •  A statement of reasons why the parties believe the settlement is in
            the public interest.  Such reasons may include the avoidance of
            prolonged litigation or an expeditious and desirable environmental
            remedy.
    
    II.  Jurisdiction.  The agreement should always contain a stipulation that
    the court has jurisdiction over both the subject matter and the parties.
    It is desirable to cite the statutory basis for such jurisdiction.
    
    III.   Parties Subject to the Terms of the Consent Decree.  The settlement
    document should state that the parties and their successors, assigns,  and
    heirs (if a person) agree to be bound by the document; and the agreement
    should also state what terms are applicable to individual parties.  For
    example, a decree may have a separate paragraph referencing the paragraphs
    applicable to each party or may identify a specific party's
    responsibilities in specific paragraphs.
    
    IV.  Injunctive Relief.  The heart of a settlement agreement is the  means
    by which compliance with regulatory requirements will be achieved or an
    endangerment abated.  Th» settlement document should reference each  speci-
    fic RCRA regulation with which the violator must comply.  The terras  should
    be more than a restatement of a regulation.  For instance, a statement  such
    as "the defendant shall prepare a contingency plan pursuant to 40 C.F.R.
    §265.51(3)" leaves too much latitude for misunderstanding between the
    parties.  Specific elements of such a plan should be set forth.
    RCRA Compliance/Enforcement          8-40              Guidance Manual 1984
    

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        a
    Chapter Eight       	Settlement Agreements
    7.  Schedule for Compliance.  An agreement must provide a practical and
    expeditious schedule for completion of its terms.  In some instances a
    specified date will not be practical.  In such a case the decree should
    provide for the fulfillment of specific requirements upon performance of
    condition precedent (e.g.. entry of the decree).
    
    VI.  Stipulated Penalties.  Stipulated penalties are often provided in
    decrees to ensure compliance with its terms.  Such penalties are advisable
    when corrective action or work by defendants is likely to take a
    substantial period of time.
    
    VII.  Penalties for Past Violations.  Penalties for past violations are a
    common pare of a RCRA settlement.  The decree should clearly specify how,
    by whom, and to whom the penalty should be paid.  If a penalty is to be
    paid in installments, the decree should provide for a clear schedule of
    payment.  Delinquent payments should accelerate payment of the entire
    penalty sum.
    
    VIII.  Approval of Complete Work.  For the orderly management of a consent
    decree's implementation, a procedure for EPA's approving the activities of
    the defendant is necessary.
    
    IX.  Force Majeure.  A force majeure should be narrowly and explicitly
    drawn.  Note that economic hardship should not be established as a force
    majeure event.
    
    X.  Reporting and Record Preservation Terms.  To assist EPA in monitoring
    the performance of the agreement's terms, it may be necessary to require
    periodic reports.  These reports may include a monthly accomplishments
    report and submission of manifest, logs, or other documents generated
    during a remedial action.
    
    XI.  Access Agreements.  When a settlement agreement requires substantial
    remedial work at a facility, EPA's rights to access should be explicit.
    EPA must have prompt, immediate access to the facility at all reasonable
    times to ensure compliance with the terms of the agreement.
    
    XII.  Preservation of Evidence.  When an agreement does not resolve all
    claim* that the government may have against either a settling party or
    other persons, the decree should provide for the proper retention of
    evidence gathered during a cleanup (e.g., soil samples).
    
    XIII.  Compliance With Other Laws.  A settlement agreement should declare
    that a defendant is required to comply with other federal, state, or local
    laws not addressed by the consent decree.  EPA does not want the decree
    used as an excuse for violation of other laws.
    
    XIV.  Extent of the Release Given Under the Decree.  Any release from
    liability must be explicit to the extent known.  Also, a statement must be
    made that declares that nonsettling parties are not released by the
    agreement.
    RCRA Compliance/Enforcement5^71Guidance Manual 1984
    

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    Chapter Eight _                                        Settlement Agreeaenta
    XV.  Good Faith Negotiation Clauses.   This paragraph has been found
    desirable in* multi-party cases where  the Agency has not settled with all
    parties.  The paragraph commonly declares that all parties negotiated and
    entered the decree in good faith, and they believe the settlement Co be
    fair and equitable.  This language may be considered self-serving by
    nonsettling parties.  However, it may be useful in defending contribution
    actions by nonsettling parties.
    
    XVI.  Termination and Effective Dates Clauses.  Each agreement should
    establish specific dates by which action under its terms is required and
    when defendant's obligations end.
    RCRA Compliance/Eaforcenent          8-42              Guidance Manual  1984
    

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    Chapter" Nine
    Judicial Enforcement:  Criminal  Actions
    Chapter Contents	^	Page
    Statutory Authority                                          9-1
    Basic Enforcement Policy                                      9-1
    Criteria for Identifying a Potential Criminal Action              9-2
    Procedures for the Investigation and Referral of a Criminal Case    9-5
    Exhibit 9-1:  Office of Criminal Investigations:  Area Offices
                and Sub-Offices                                  9-9
    Exhibit 9-2:  Referral Procedure for Criminal Cases         .      9-11
    Exhibit 9-3:  Uniform Criminal Referral Package Format             9-16
    RCRA Compliance/Enforcement            9-i         Guidance Manual 1984
    

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    Chapter Nine	                          Contents
    RCRA Compliance/Enforcement               9-ii           Guidance Manual 1984
    

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           Chapter Nine^
           Judicial  Enforcement:   Criminal  Actions
           Statutory Authority
           Sections 3008(d) and 3008(e)  of RCRA set forth the activities  for which
           criminal penalties may be  imposed.  These include, among others:
    
                •  The knowing transportation of any hazardous waste  to an unperaitted
                   facility;
    
                •  The knowing treatment, storage, or disposal of  any hazardous waste
                   without a permit;  and
    
                •  The knowing violation of material conditions of a  permit.
    
           Section 3008(e) contains separate penalties for a person who knowingly
           places another person in "imminent danger of death or serious  bodily
           injury" as a result of the violations listed above.  This  provision, which
           is called the "knowing endangerment" provision, currently  provides the
           strictest criminal penalties  contained in any environmental statute.
            Basic Enforcement Policy
    
    
            The  objective of the hazardous waste enforcement program is  to ensure com-
            pliance with the terms and  provisions of RCRA.  The Act  provides the Agency
            with a variety of administrative, civil, and criminal enforcement options
            to accomplish this goal. Potential overlap exists among these various
            options, but the Agency is  free  to pursue criminal sanctions whenever
            sufficient evidence is available  to support the requisite elements of
            proof.
    
            As a matter of enforcement  policy and resource allocation,  such an unre-
            strained use of criminal sanctions is neither warranted  nor  practical.  The
            commitment of investigative and  technical resources necessary  for the suc-
    -/r      cessful prosecution of a criminal case is high.  More importantly, a crimi-
            nal  referral for investigation or prosecution can entail profound
            RC1 V Compliance/Enforcement9-1           Guidance  Manual 1984
    

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    Chapter Nine	Judicial Enforcement:   Criminal Actions
    consequences for the subject of the referral.   Accordingly,  criminal refer-
    rals will be confined to situations that—when measured by the nature of
    the conduct, the compliance history of the subject(s),  or the gravity of
    the environmental consequences—reflect the most serious cases of environ-
    mental misconduct.
    Criteria for Identifying a Potential Criminal Action
    This, section discusses the considerations  that  should  be  examined  in deter-
    mining whether to proceed with a criminal  vis-a-vis administrative/civil
    action.
    The Scienter Requirement
    
    An individual who engages in conduct prohibited by statute or regulation
    can be prosecuted civilly or administratively without regard  to  the  mental
    state that accompanied the conduct.   Criminal sanctions,  on the  other hand,
    will ordinarily be limited to cases  in which the prohibited conduct  is
    accompanied by evidence of a "guilty knowledge" or intent on the part of
    the prospective defendant.  Referred to as the scienter  requirement,  this
    element of proof exists under virtually every environmental statute
    enforced by the Agency.*  The requirement  to prove a culpable mental state,
    as well as a prohibited act, is certainly  the clearest distinction between
    criminal and administrative/civil enforcement actions.
    
    Section 3008(d) of RCRA imposes criminal penalties only  for violations of
    the Act that are done "knowingly."  Although there is, as yet, no case law
    interpreting the meaning of this term under RCRA,  the term is used in a
    number of other criminal provisions.  As such, it has been interpreted to
    mean that the violative act must have been done intentionally and not as a
    result of accident or mistake.  Section 3008(e) of RCRA,  the  knowing endan-
    ger men t provision, also uses the term "knowingly."  The  meaning  of the term
    as used in this provision is defined by Section 3008(f)  of RCRA; however,
    the meaning is not the same as the case law definition of "knowingly."
    
    
    The Nature and Seriousness of the Offense
    
    As a matter of enforcement policy and resource allocation, EPA will  inves-
    tigate and refer only the most serious forms of environmental misconduct
    for criminal prosecution.
       One exception to this general rule is the Refuse Act,  33  U.S.C.  §407,
       which has generally been interpreted as a "strict liability"  statute.
       [See, e.g., United States v. White Fuel Corporation,  498  F.2d 619 (1st
       Cir. 1974).]  In addition, a prosecution for illegal  discharges  under
       the Clean Water Act can be based on negligent o£ willful  conduct, 33
       U.S.C. §1319(c)(l).  "Negligence" is not, strictly speaking,  a form of
       scienter.
    RCRA Compliance/Enforcement              9-2           Guidance Manual 1984
    

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    Chaoter Nine	Judicial Enforcement;   Original Actions
    Of primary importance to this assessment is the extent of environmental
    contamination or human health hazard that has resulted from,  or was
    threatened by, the prohibited conduct.   In general,  this determination will
    depend upon considerations such as the  following:
    
         •  The duration of the conduct;
    
         •  The toxicity of the pollutants  involved;
    
         •  The proximity of population centers;
    
         •  The quality of the receiving land, air, or water;
    
         •  The amount of federal, state, or local clean-up expenditures;  and
    
         •  The public sentiment supporting strong enforcement action in
            response to a specific situation.
    
    Also of significance in assessing the seriousness  of the illegal conduct  is
    the impact—real or potential—on EPA's regulatory functions.   This factor
    is of particular importance in cases involving the falsification or con-
    cealment of records, reports, or other  information.   For example, even if  a
    technical falsification case can be made, criminal sanctions  may not  be
    appropriate if the distorted information could not reasonably have been
    expected to have a significant Impact on EPA's regulatory or  decisionmaking
    process.  Where the materiality of the  falsification is clear,  however,
    criminal sanctions should be considered.
    
    
    The Need for Deterrence
    
    Deterrence of criminal conduct by a specific individual (individual deter-
    rence) or by the community at large (general deterrence) has  always been
    one of the primary goals of criminal law.  Where the offense  is deliberate
    and results in serious environmental contamination or human health hazard,
    the need to achieve deterrence through  the application of strong punitive
    sanctions will almost always exist.
    
    The goal of deterrence may, on occasion, justify a criminal referral  for an
    offense that appears relatively minor.   This would be true, for example,
    for offenses that—while of limited importance by themselves—would have a
    substantial cumulative impact if commonly committed.  This night also be
    true when addressing violations by an individual with an extended history
    of recalcitrance and noncompliance.
    
    
    Compliance History of the Subject(s)
    
    The compliance history of the subject(s) of a potential criminal referral
    also should be considered in determining the appropriateness  of criminal
    sanctions.  As a general rule, criminal sanctions become more appropriate
    as the incidents of noncompliance increase.  The occurrence of past
    enforcement actions against a company or the failure of past
    

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    Chapter Nine     	Judicial Enforcement:  Criminal Actions
    administrative/civil enforcement to achieve compliance,  is certainly noc a
    prerequisite to a criminal referral.  However,  a history of environmental
    noncompliance will often indicate the need for  criminal  sanctions to
    achieve effective individual deterrence.
    The Meed for Simultaneous Civil or Administrative Enforcenenc  Action
    
    Simultaneous administrative/civil and criminal enforcement proceedings  are
    legally permissible [United States v. Kordel.  397 U.S.  1,  11 (1970)] and  on
    occasion clearly warranted.  However, separate litigation  staffs  must be
    appointed on initiation of a grand Jury investigation,  if  not  before.
    Furthermore, the pursuit of simultaneous proceedings would provide fertile
    grounds for legal challenges to one or both proceedings that,  even if
    unsuccessful, would consurae additional time and resources.  Thus,  parallel
    proceedings should be avoided except where clearly justified.
    
    In this regard, it should be noted that some of the goals  of a criminal
    prosecution, including deterrence, can be achieved through an  administra-
    tive or civil action that secures substancial  civil penalties  in  addition
    to injunctive relief.  Moreover, recent experience indicates that, while
    some cases may result in periods of incarceration, criminal sentences will
    often be limited to monetary fines and a probationary period.   In light of
    this reality, the use .of the additional time and resources necessary to
    pursue a criminal investigation is often not justified.
    
    
    Criminal Enforcement Priorities
    
    The Criminal Enforcement Division, in conjunction with  the Agency program
    offices, has developed investigative priorities in each of the Agency's
    program areas.  The purpose of this effort is  to focus  the limited
    investigative resources of the Agency on the most serious  cases of
    environmental misconduct.  These priorities are fluid and  will be modified
    to reflect additional regulatory programs in the Agency as they develop.
    In addition, the creation of these priorities  does not  preclude the
    possibility of criminal referral for conduct not falling within these
    investigative priorities.
    
    The order of listing is random.  It is not intended to  create  a ranking
    within the priorities for RCRA; nor is any section of the  Act  given higher
    priority than another.  The priorities for RCRA are listed below.
    
    Knowing Endangennent.  Section 3008(e) of RCRA, 1*2 U.S.C.  §6928(e), estab-
    lishes the crime of "knowing endangerment." The provision carries maximum
    penalties of up to five years of imprisonment  and a $1  million fine and
    reflects a congressional mandate to pursue strong criminal sanctions for
    knowing, life-threatening conduct that violates RCRA statutory prohibitions
    or interim status standards and regulations.  RCRA and  its legislative  his-
    tory indicate that the "knowing endangerraent"  provision is Intended to
    apply only in the most serious instances of environmental  rUsconduct.
    Where the elements of proof can be met, however, EPA will  give a  high
    

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    Chapter Nine	Judicial Enforcement;  Criminal Actions
    
    
    
    priority to the Investigation, referral,  and prosecution of "knowing
    endangerment" cases.
    
    Illegal Transportation and Disposal of Hazardous Waste.   Section 3008(d)
    (1-2) of RCRA, 42 U.S.C. 56928(d)(l-2), carries felony penalties of two
    years of imprisonment and a $50,000 fine for the knowing transportation of
    any hazardous waste to an unperoitted facility [Section  3008(d)(l)] and the
    knowing disposal of any hazardous waste without obtaining a permit [Section
    3008(d)(2)].  Both provisions are potentially applicable to "midnight  dump-
    ing" in its various forms (e.g..  in abandoned sites,  company yards, open
    fields or waterways, or unpermitted waste disposal facilities).   A high
    investigative priority will be placed on illegal transportation  or disposal
    activities that result in, or threaten, serious environmental contamination
    or human health hazard.
    
    Falsification of RCRA Records.  Section 3008(d)(3) of RCRA, 42 U.S.C.
    |6928(d)(3), carries misdemeanor  penalties of one year of imprisonment and
    a $25,000 fine for the knowing falsification of material information in
    records "maintained or used for purposes of compliance"  with RCRA.  Empha-
    sis will be placed on falsification activity that has—or could  reasonably
    be expected to have—a significant impact on EPA's regulatory or decision-
    making process.
    
    Destruction, Concealment, or Alteration of RCRA Records.  Section 3008(d)
    (4) of RCRA, 42 U.S.C. §6928(d)(4), carries misdemeanor  penalties of one
    year of imprisonment and a $25,000 fine for incidents of knowing destruc-
    tion, concealment, or alteration  of records maintained under RCRA regula-
    tions.  As in falsification cases, emphasis will be placed on conduct  that
    has—or could reasonably be expected to have—a significant impact on  EPA's
    regulatory or decisionmaking process.
    Procedures for the Investigation and Referral of a Criminal Case
    Investigation
    
    The Office of Criminal Investigations maintains the primary role  of  inves-
    tigating and referring to the Department of Justice all allegations  of
    criminal misconduct.  The office Is staffed by experienced criminal  inves-
    tigators located in each of six area offices.   (Exhibit 9-1 contains a  list
    of the area offices and their scope of responsibility.)
    
    An initial "lead" or allegation of potential criminal activity may come to
    the Agency from any of several sources, including state agencies, routine
    compliance inspections, disgruntled plant employees, or citizen groups.
    Regardless of its source, the lead should be transmitted immediately CD the
    Special-Agent-In-Charge or Resldent-Agent-In-Charge of the responsible
                                                                           1984
    

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    Chapcer Nine	Judicial Enforcement;  Criainal Actions
    area office-or sub-office, who will open a case file* and assign a criminal
    investigator (known as a Special Agent) Co the lead for follow-up.
    
    If the reliability of the lead is unclear, the Special Agent vill conduct a
    preliminary inquiry solely to determine the credibility of the allegation
    and to make an initial assessment of the need for more thorough investiga-
    tion.  This initial inquiry will be brief and will not involve extensive
    commitment of resources or time.  Its sole purpose is to reach an initial
    determination on the need for a complete investigation.
    
    Once a determination has been made by the Office of Criminal Investigations
    that a thorough investigation is warranted, the Special Agent will imedi-
    ately contact the Regional Counsel in the Region where the investigation  is
    to be conducted.  The Regional Counsel will ensure that no civil enforce-
    ment action is pending or contemplated against the investigative car»ec and
    will assign an attorney to work with the investigator during the case
    development process.  The regional attorney and Special Agent will also
    contact the appropriate regional program office to ensure that -no adminis-
    trative enforcement action is pending or contemplated.  In addition, where
    the need for technical support during the investigation is contemplated,
    the regional program office will be asked to assess the availability of
    technical resources and, when appropriate, to designate a specific indivi-
    dual to work with the Special Agent during the course of the investigation.
    
    Management of the investigation will.be the primary responsibility of  the
    Special Agent, acting under the supervision of the area office Special-
    Agent-In-Charge or sub-office Resident-Agent-In-Charge.  The Special Agent
    will be responsible for determining the basic investigation approach and
    will take the lead in conducting interviews; assembling and reviewing
    records; planning and executing surveillances; coordinating with state,
    federal, and local law enforcement agencies; planning and executing
    searches; developing informants; and performing other Investigative
    matters.  A technical person will work with the Special Agent during  chose
    portions of an investigation requiring technical expertise.
    Referral
    
    A referral recommendation will be developed when the independent field
    investigation has been exhausted, or when it can or should  proceed  no
    further without the Initiation of a grand jury investigation by Che
       The opening of a case file does not commit Che Agency Co proceed wich  a
       criminal referral ac the culmination of che invescigacion;  nor does  it
       reflect an Agency decision chac criminal conduce has occurred.  All
       enforcement options remain open and should be considered uncil referral
       Co che Department of Justice.
    

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    Chapter Nine            	Judicial Enforcement:  Criminal Actions
    Department of Justice.*   At this point, the results of the investigation
    will be assembled io a referral package.  The preparation of the overall
    referral package will be the responsibility of the regional attorney
    assigned to the investigation, working in conjunction wich the Special
    Agent.**
    
    Once the package is prepared, it will be reviewed by the Special
    (Resident)-Agene-In-Charge and the Regional Counsel, who will act as joint
    signatories.  Technical portions of the package will also be reviewed by
    the regional or Headquarters program office, or NEIC—depending on che
    source of technical support.  During this technical review, the
    availability of technical resources to support litigation should also be
    reviewed and specifically confirmed by che appropriate technical office.
    
    Following completion of the referral package and concurrence in the refer-
    ral recommendation by the Special (Resident)-Agent-In-Charg3 and the
    Regional Counsel, three copies of the referral package and all exhibits
    should be directed to the Director, Office of Criminal Enforcement
    (LE-134E), U.S. Environmental Protection Agency, 401 M Street, S.W.,
    Washington O.C. 20460.  No copies of the referral package will be sent to
    the local United States Attorney or the Department of Justice until
    Headquarters has reviewed and approved the referral.
    
    If either the Special (Resident)-Agent-In-Charge or the Regional Counsel
    believes the referral should not be made, that official will include a
    statement of the reasons underlying this position and make an alternative
    recommendation (e.g., close out investigation, change to civil referral,
    change to administrative action, etc.).  The package nevertheless will be
    directed to the Office of Criminal Investigations for review; a final
    referral decision will be made by the Assistant Administrator for OECM (or
    the Assistant Administrator's delegatee).
    
    The Headquarters review will focus on the adequacy of case development,
    adherence to the criminal enforcement priorities of the Agency, legal
    issues of first impression, consistency with related program office policy,
    and general prosecutorial merit.  In cases Involving particularly complex
    issues of law, the Office of General Counsel will also be consulted.  If,
    following this review process, the referral recommendation is accepted,
    referral packages will be directed simultaneously to the Department of
    *   Where a referral is made for further investigation by grand jury, che
        task of creating a complete referral package is difficult because che
        case has not yet been completely developed.  A BO re streamlined
        referral process has been developed for these cases to eliminate
        inefficiency and to provide for the more natural development of
        criminal cases.  A copy of these procedures is attached as Exhibit 9-2.
    
    **  Where a referral is made for further investigation by grand jury, che
        package will be prepared by the Special Agent in coordination wich che
        regional legal and cechnical staffs assigned co che case.
    

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    Chapter .Nine	Judicial Enforcement:  Criminal Actions
    Justice and the appropriate United States Attorney's Office.  Appropriate
    cover letters will be drafted by the Office of Criminal Enforcement.
    
    
    Referral Package Format
    
    Referral packages should be prepared in accordance with the Uniform Crimi-
    nal Referral Package Format effective on January 1, 1982.  A copy is
    included in this chapter as Exhibit 9-3.  However, referral packages
    prepared for those cases referred for further investigation by a grand jury
    should be prepared in accordance with the May 9, 1983,  guidelines (see
    Exhibit 9-2).
    References
    Agency employees who are involved in the investigation and referral to the
    Department of Justice of allegations of criminal violations of RCRA should
    faailiarlze themselves with the Agency documents listed below.  Although a
    digested form of some of this material is contained in this section, most
    of the items are not covered in detail.  The documents are contained in the
    General Enforcement Policy Compendium, or copies of the documents may be
    obtained by contacting the Office of Criminal Enforcement, EPA
    Headquarters.
    
         •  Agency Guidelines for Participation in Grand Jury Investigations
            (April 30, 1982);
    
         •  Criminal Enforcement Priorities for the EPA (October 12, 1982);
    
         •  General Operating Procedures for the Criminal Enforcement Program
            (October 27, 1982);
    
         •  Overflights Initiated by the Criminal Enforcement Division (June
            17, 1983);
    
         •  Policy and Procedures on Parallel Proceedings at the EPA (January
            23, L984);
    
         •  Agency Guidelines for the Use of Administrative Discovery Devices
            in the Development of Potential Criminal Cases (February 15,  1984);
    
         •  Guidance Concerning Compliance with the Jencks Act (March 8,  1984);
    
         •  Press Relations on Matters Pertaining co EPA's Criminal Enforcement
            Program (Draft); and
    
         •  Policy on Sampling, Preservation, and Disposal of Technical
            Evidence in Criminal Enforcement Matters (Draft).
    

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    Chapter Nine
                              Exhibit 9-1
          Of£lea of Criminal Investigations:   Area Offices and Sub-Offices
                                   Area Offices
      EPA Headquarters Office
    
      Sp«cial-Agent-In-Charge
      Office of Criminal Investigations
      EPA - Headquarters (LE-134E)
      401 H Street, S.W.
      Washington, D.C.  20460
      FTS 557-7410
      Philadelphia Area Office
      (Regions I.  II.  and III)
    
      Special-Agent-In-Charge
      Office of Criminal Investigations
      EPA - Region III
      Curtis Building
      6th & Walnut Streets
      Philadelphia, PA  19106
      FTS 597-1949
      Atlanta Area Office
      (Regions IV and VI)
    
      Special-Agent-In-Charge
      Office of Criminal Investigations
      EPA - Region IV
      345 Courtland Street, N.E.
      Atlanta, GA  30365
      FTS 257-4885
    Chicago Area Office
    (Regions V and VII)
    Special-Agent-In-Charge
    Office of Criminal Investigations
    EPA - Region V
    230 South Dearborn Street
    Chicago, IL  60604
    FTS 386-9874
    Denver Area Office
    (Region VIII)*
    
    Special-Agent-In-Charge
    Office of Criminal Investigations
    National Enforcement Investigations
      Center
    Box 25227
    Denver Federal Center
    Denver, CO  80225
    FTS 776-5128
    
    Seattle Area Office
    (Regions IX and X)
    
    Special-Agent-In-Charge
    Office of Criminal Investigations
    EPA - Region X
    1200 6th Avenue
    Seattle, WA  98101
    FTS 399-9874
        *  In addition to Region VIII-cases,  the Denver  Field  Office's
           responsibilities include cases that overlap the  jurisdiction
           of one or more field offices.
    

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    Chapter Nine
                              Exhibit 9-1
                                 Area Sub-Offices
      Boacon Area Sub-Office
      (proposed)
    
      Resident-Agent-In-Charge
      Office of Criminal Investigations
      EPA - Region I
      John F. Kenned7 Federal Building
      Boston, Massachusetts  02203
      New York Area Sub-Office
    
      Resident-Agent-In-Charge
      Office of Criminal Investigations
      EPA - Region II
      26 Federal Plaza
      New York, New York  10278
      FTS 264-8917
      Dallas Area Sub-Office
      (proposed)
    
      Resident-Agent-In-Charge
      Office of Criminal Investigations
      EPA - Region VI
      1201 Elm Street
      Dallas, Texas  75270
    Kansas City Area Sub-Office
    (proposed)
    
    Resident-Agent-In-Charge
    Office of Criminal Investigations
    EPA - Region VII
    324 East llth Street
    Kansas City, Missouri  64106
    San Francisco Area Sub-Office
    (proposed)
    
    Resident-Agent-In-Charge
    Office of Criminal Investigations
    EPA - Region IX
    215 Fremont Street
    San Francisco, California  94105
    ROM
    

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    Chapter. Mine	Eachlbit 9-2
    
    
                         Referral Procedures  for Criminal Cases
                      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           •4,   ^f                   «A»NIMOTON. oe <•««•
    
    
    
                                            9 JSS3
                                                                     orrtt a*
            MEMORANDUM
    
            SOBJECTi  Referral Procedure for Criminal Cases
    
            FROMj     Courtney M. Price (*C*J2L, OTv <<-<-U.
                      Acting Associate Administrator
                         and General Counsel
    
            TOi       Regional Counsels. Regions l-x
                      All SAICs, Criminal Enforcement Division
    
    
                 Under the current General Operating Procedures, a
            criminal referral to the Justice Department may be made for
            one of tvo reasons:  for prosecution (where the investigative
            effort is complete and we believe the crime is capable of
            being proved); and for further investigation in conjunction
            with the Justice Department.
    
                 In the latter situation—'referrals for further
            investigation*—the scope'of the ultimate prosecution, and
            even the identity of defendants, nay well not be known.  The
            purpose of the referral is to facilitate further development
            of the case rather than to incorporate final Agency decisions
            on the viability or advisability of a prosecution.  As such,
            it can and often does occur at an early stage in the case
            development process.
    
                 In these situations, the task of creating a complete
            referral package is difficult—in light of the fact chat the
            ease has not yet been completely developed.  It is also cine
            consuming, and thus can prejudice the investigation.  The
            tiM spent in attempting to prepare a complete referral
            package, and in processing che package through the Regional
            and the Headquarters review system, can cause delays in the
            development of the case while not providing the countervailing
            benefits normally realized in she referral process, i.e.
            close scrutiny of the evidence prior to filing or a final
            assessment of che merits of criminal prosecution.
    

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    Chapter  Nine	Exhibit 9-2
                                         -2-
    
                 To eliminate this inefficiency, and provide far the acre
            natural development of criminal cases, a shortened referral
            package will be used wnere tne purpose of the rsferral is
            for furtner investigation in. conjunction with the Justice
            Department, rather than to incorporate a complete investigative
            package.  (The format appears as Attachment A.)
    
                 This package will provide a basis on which to make the
            beet possible assessment both at the Regional level and at EPA
            Headquarters on the merits of the potential case.  At the
            same time, it will provide a vehicle for the more rapid
            transmission of our investigative work product to prosecutors
            with the Justice Ceeartae.T:, who will then become part of the
            criainal case development team.
    
                 The modified referral package will normally be prepared
            by the Special Agent assigned ta the investigation, who will
            be most faailiar with investigative activity to date.  The
            package must be prepared in close coordination with Regional
            legal and technical personnel assigned to the investigation.
            As under existing procedures, the referral will be approved by
            both the Special-Agent-in-Charge and the Regional Counsel
            before transmission to SPA Headquarters for approval.  Cover
            letters to the appropriate United States Attorney and to the
            Land and Satural Resources Division will be drafted at SPA
            Headquarters for the signature of the Associate Administrator.
    
                 Questions on this procedure should be directed to
            Peter Beeson (382-4343).  It is our hope that these modified
            procedures will ensure the most efficient possible development
            of our criminal cases.
    
            Attachments                            '.
    

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    Chapter  Nine	'             P.Thibit 9-2
                                     ATTACHMENT A
            SOBJECT:  Criminal Referral
                      Special-Agent- la-Charge
                                            Field Office
                      Criminal Enforcement Division
                               Counsel
                        5 isn
            THRO:
                      Associate £n:3r:aaent Counsel
                      Criminal £nfor:«rc«nc Division
                      Eniorcem«nt Counsel
            T0»
                                Adainiseracoc «nd c«n*ril Counsel
                 Attached for your consideration «re materials assembled
    
            by this Agency in a criminal investigation against
                                          It is the opinion o£ our o££ices
            that further development .of this case should proceed in
    
            close coordination with the Justice Department.  An overview
                     •
            of the nature of this investigation is provided selow for
    
            your indorsation.  We recommend immediate referral to the
    
            (O.S. Attorney/Federal District) and to the Land and Natural
    
            Resources Division for further development.
    

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    Chapter Nine
                                                                         Exhibit  9-2
                                             PACKAGE
                                      (Name  at Cast)
                                    (Naae of 3istr:.etl
              I.   Identity  of  Subleet(s) of  Investigation;
    
                   Indtvidual(s);
    
                        1.  'Mane
                        2.  Title
                        3.  Age
                        4.  Sone/worfc address
                        5.  Current employment
                        6.  Criminal record, ii any
                        7.  Prior 2?A enforcement action
                        8.  Other pertinent  information
    
    
                   Corporation)s);
    
                        1.  Nan* and nature  o£ business
                        2.  Parent company
                        3.  Susidiarxes
                        4.  Address of iacilityties) associated
                           with o££enses
                        5.  State at incorporation
                        6.  Size oC company
                        7.  Prior ZS\ enforcement action
                        8.  Otfcer pertinent  indorsation
                      •
    
              IX.   Mature ot Activity under  Investigation
    
                        1.  Location and duration
                        2.  Venue
                        3.  Significance of  Activity (A brief statement
                           of reasons underlying t.le need to address
                           the misconduct wit.1 criminal sanctions.)
    RCRA
    

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    Chapter  Nine	___	Sxhibit
                                         -2-
            III.  Statutory Offenses
                          Applicable  Statutes;   (A summary at federal
                          environmental  and  related laws potentially
                          violated by :h«  activity,  aecampanitd by
                          p«rtin«nc citation*  to t.1« Onitid Statis
                          Cod* and th« Cod*  of  Federal  a«
    -------
    Chapter Mine	,	Exhibit 9-3
    
                 •
                      Uniform Criminal Referral Package  Format
       Effective January 1, 1982, the following format should  be  used  by all
       EPA offices in preparing criminal cases for referral  to  che  Department
       of Justice.  Obviously, organizational changes should be made where
       considered necessary to achieve an effective presentation  of che  facts
       or issues of an individual case.  However, this format  and the
       accompanying instructions reflect the subject matter  that  should  be
       included in the package.  If changes are made in  the  foraac, please
       be sure that required subject xatter is not omitted  in  the process.
       INTRODUCTORY SECTIONS    	
    
    
       Title Page
    
       Each referral package should carry a  title  page or  cover  sheet  that
       includes:
    
            •  Identity of the company and/or primary  Individual  subject(s)
               of the investigation;
    
            •  Federal district of the proposed  referral;
    
            •  Identity, occupation, and telephone  number  of  che  Agency
               personnel who assisted in preparing  the referral  package;  and
    
            •  Date of submittal of the report from the  regional  office.
    
    
       Table of Contents
    
       Each referral package should have a table of contents  that includes
       the following sections:
             I.  Introduction  	
            II.  Statutory Authority  	
           III.  Subject(s) of the  Investigation  ...
            IV.  Enforcement and Regulatory History
             V.  Description of the Evidence  	
            VI.  Legal Issues  	
           VII.  Environmental Impact  	
          VIII.  Recommendation	
       Appendix A.  List of Witnesses	,
       Appendix B.  List of Exhibits	
       Appendix C.  Exhibits 	
    

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    Chapter Mine     	'	,	             Exhibit 9-3
       A discussion of each individual section  follows.
    
    
       Body of the Report
    
       .Section I—Introduction.  The  Introduction  will  provide  a synopsis  of
       the investigation to orient  the reader.   It  should  be  brief.   A
       detailed discussion of the evidence will  be  provided  in  a subsequent
       section of the report.
    
       Within the introduction, the following areas  should be addressed:
    
            •  The identity of the  corporate and individual  subject(s) of
               the investigation;
    
            •  A brief description  of the nature and duration of the
               criminal activity under investigation;
    
            •  Venue (i.e., the federal district(s)  in  which  the offense
               occurred).  If venue lies in more than one  district,  an
               explanation should be  included for  the Region's  choice of
               one federal district over another for referral;  and
    
            •  The regional recommendation underlying the  referral.
    
       Section II—Statutory Authority.  This section should  Include  Che
       statutory provisions that provide the basis  for  the referral.
       Pertinent portions of each statute should be  quoted in full,  followed
       by a listing of the elements of each offense  that must be provided  In
       a subsequent prosecution.
    
       Section III—Subjects of the Investigation.   This section will be
       used to provide pertinent background data on  the subjects of  the
       referral.  For each individual subject,  the  following  minimum
       information should be included:
    
            •  Name and title;
    
            •  Approximate age;
    
            •  Home and work addresses;
    
            •  Nature of current employment; and
    
            •  Criminal record, if  known.
    
       For each corporate subject,  Include:
    
            •  Name of company and  parent corporation,  if  appropriate;
    
            •  Complete address of  company;
    

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    Chapter Wine	Exhibit 9-3
            •  Complete address of facility associated  with  offenses;
    
            •  State of incorporation of corporate  subjects;
    
            •  Registered agent for service; and
    
            •  A brief statement of the business, profits, and  size  of Che
               company.
    
       Section rv—Enforcement and Regulatory History.  This  section should
       include a description of all known enforcement activity  (state  and
       federal) relating to environmental matters taken against the  subject
       in the past.  In addition, any previous efforts  by  ~?A to remedy the
       present problem through informal, administrative,  -r  civil nieans
       should be discussed.*
    
       Finally, if the Region is recommending that  the  criminal referral be
       pursued simultaneously with a parallel civil/regulatory  proceeding
       against the subject(s), this fact should be  highlighted.  The steps
       taken in the Region to ensure proper coordination  and  separation of
       the parallel proceedings should also be described.
    
       Section 7—Description of the Evidence.  This  section will constitute
       the major portion of the report.  Its function  is  to  present  the
       results of the Region's investigative activity  and  to  demonstrate how
       the criminal conduct uncovered in that investigation  will be  proved
       ac trial.
    
       Background.  There is no one proper way to present  the evidence.  Any
       method that is clear and organized is acceptable.   A  chronological
       approach is recommended, however, both because  it  is  simple to  follow
       and because prosecutors often present their  evidence  before the grand
       jury and at trial within a chronological framework.
    
       Regardless of the organization chosen, all substantial facts  detailed
       in this section should b« supported by some  item of evidence—a
       witness interview, a letter from EPA correspondence  files, an JJPDES
       permit, results from a compliance inspection,  technical  analysis of  a
       pollutant sample, a photograph, etc.  Copies of  these  items of
       evidence should be included, in turn, as exhibits  to  the litigation
          Care should be  taken while  writing  this  report co avoid duplication.
          If facts relating  to past  regulatory  or  enforcement activity are
          discussed  in subsequent  sections  (e.g.,  as  evidence of a "willful"
          or "knowing" violation), only  a  brief summary should be included in
          this section.
    RCRA Compliance/Enforcement               9-18         Guidance Manual 1
    

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    Chapter Nine	,	                 Exhibit 9-3
       Section VIII—Recommendation.  The report  should  conclude  with a
       specific recommendation for the appropriate  future  course  of  the
       case.  Normally, one of two recommendations  will  be made:
    
            •  Further Investigation.  Where  the  use of  an investigative
               grand Jury is contemplated (for example when witnesses are
               not talking and compulsory process is required),  the  referral
               will recommend further investigation.  In this  situation, an
               additional recommendation for  prosecution may or may  not be
               appropriate.  If the evidence  in hand provides  an  adequate
               basis on which to base such a  Judgment, a recommendation for
               prosecution under specific statutory provisions should be
               included.  If the available evidence is not sufficient,  a
               prosecutorial recommendation should  be withheld pending
               completion of the grand jury work  and consideration of the
               results.
    
            •  Prosecution.  If the field investigation  is complete,  the
               conduct has been documented, and grand Jury work  is
               required—if at all—only to present the  evidence  and  secure
               an indictment, the referral should include  a recommendation
               for prosecution under specific statutory  provisions.
    
       Following the specific recommendation, the report should  include the
       best available projection of resources necessary  to bring  the  case  to
       resolution.  This projection should discuss  investigative,  technical,
       and legal resources and should indicate the  Regional Office's
       ability to provide these resources.
    
       Appendix A—List of Witnesses.  This section is particularly  useful
       to prosecutors supervising the case and will frequently be  used  in
       issuing subpoenas, planning a grand jury presentation,  and  estimating
       the scope of the prosecution.  For each witness,  the writer should
       provide all available background data  (e.g., name,  residence,  work
       address, telephone numbers, etc.) and  a brief summary (one  paragraph)
       of the matters on which testimony is anticipated.   This section
       should include not only the key substantive  witnesses,  but  also  those
       who will establish the appropriate foundation for documentary  or
       physical evidence (e.g., photographers, chain of  custody  record
       custodians, etc.).  Confidential Informants  should  not  be  Identified
       in this list.
    
       Appendices B and C—List of Exhibits and Exhibits.   Copies  of  every
       substantial piece of documentary evidence  in the  case should  be
       included as an exhibit to the report*  and  should  be Indexed  to allow
          Exceptions will be made  If  the exhibit  Is  too  bulky  or otherwise
          inappropriate for Inclusion  In the report.   Pollution samples,  for
          example, will remain with Che Regional  Offices;  however,  copies of
          reports reflecting their analysis should be  Included where possible.
    

    -------
    Chapter Nine	      .	Exhibit 9-3
       for easy reference in the main  body  of  the  report.   Original exhibits
       •or documents should not be  included  in  the  referral package if this
       can be avoided.  They will  normally  be  used as  evidence in trial, and
       should be retained in the Regional Office until other arrangements are
       made with the Justice Departaent prosecutor supervising the case.
    

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    Chapter Ten
    Post-Settlement Enforcement
    Chapter Contents	                 Page
    Monitoring Consent and Settlement Agreements                 10-1
    Enforcing Consent Orders and Consent Decrees                 10-3
    Exhibit 10-1:  Consent Decree Tracking System Guidance          10-5
    '*CKA Compliance/Enforcement       10-i           Guidance Manual 1984
    

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    Chapter Tea	_	•	Contents
    

    -------
    V"'        	
                Chapter Ten
                Post-Settlement Enforcement
                The Agency often settles an administrative or civil judicial  action with a
                violator prior  to the actual hearing or  trial, thus obviating the need for
                costly litigation.  Such settlements under RCRA take the form of either
                consent agreements and consent orders (for administrative cases) or settle-
                ment agreements and consent decrees  (for civil judicial cases).*  This
                chapter briefly explains how EPA. monitors compliance with such orders and
                decrees and discusses the various responses available to the  Agency should
                noncompllance with negotiated settlements occur.  For additional discussion
                of post-settlement enforcement in hazardous waste cases, see  EPA's
                RCRA/CERCLA Case Management Handbook.**
                Monitoring Consent and Settlement Agreements
                Development of  an effective post-settlement monitoring program should begin
                at the time a consent or settlement agreement is negotiated  and drafted.  A
                well-drafted agreement should include  provisions for self-monitoring and
                self-reporting  by the defendant.*** Although such provisions  do not
                obviate the need for periodic post-settlement monitoring by  the Agency,
                they enable EPA to utilize its limited resources In the most efficacious
                manner.
                *    A consent  order is a final Agency order, entered by consent of the
                     parties, that executes a consent  agreement.  A consent  decree is a
                     judicial decree, entered by consent of the parties, that  executes a
                     settlement agreement.
    
                **   Note also  that the following policies are being drafted to provide
                     further guidance on hazardous waste agreements—"Interim CSR.CLA
                     Settlement Policy" and "Drafting  Consent Decrees in Hazardous Waste
                     Imminent Hazard Cases."
    
                ***  See EPA's  "Guidance for Drafting  Judicial Consent Decrees," which is
                     contained  in EPA's General Enforcement Policv Comoendium.
    

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    Chapter-Ten	•_	Post-Set tleaent goforceaent
    To ensure continued compliance with RCRA as veil as wich the terns of a
    consent or settlement agreement, the Agency perfonns such monitoring
    activities as:
    
         •  Follow-up inspections as part of routine assignments under a
            neutral inspection scheme;
    
         •  Follow-up inspections as part of the terms of a settlement;  and
    
         •  Assurance that the violator has paid any assessed civil penalty.
    
    
    Consent Order and Consent Decree Tracking
    
    To implement a post-settlement enforcement program effectively, the Agency
    oust be able to track carefully a violator's compliance wich the teras of a
    consent order or consent decree.  Such tracking ensures that all compli-
    ance milestones are met and that any instances of noncompliance are quickly
    identified.
    
    NEIC is currently developing, and will soon implement, a uniform national
    tracking system that will include information on all court-entered consent
    decrees to which EPA is a party.  However, federal facility compliance
    agreements, which are always developed out of court, and administrative
    consent orders will not be tracked by the system.
    
    
    Operation of the NEIC Tracking System
    
    At the beginning of each quarter, the Office of Management Operations (OMO)
    will send to each Regional Administrator two computer print-outs containing
    consent decree monitoring information.  The computer print- outs will list:
    
         •  All consent decree milestones in each Region that are scheduled to
            come due during the present quarter (prospective); and
    
         •  All consent decree milestones in each Region for which che Region
            was responsible for ensuring compliance during the preceding
            quarter (retrospective).
    
    The prospective print-out is intended as a tool to be used by the Regional
    and OECM management.  It may be used, for example, as a device to alerc che
    Regional Administrators to those consent decree milestones chat will be
    coming due during the quarter.
    
    The retrospective print-out contains instructions for che Regional Admini-
    strators to respond to OMO within ten working days of che cransmission dace
    of the print-out with the following summary informacion:
         •  Whether each consent decree milestone that came due duri.i^ did pra-
            ceding quarter was achieved;
    
         •  Which consent decree milestones were not nee;
    

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    Chapter Ten                            •         Post-Settleaent Enforceaent
    
    
         •  Whether any consent decree milestones were renegotiated; and
    
         •  If any milestone was not achieved or renegotiated,  the enforcement
            response the Region intends to take.
    
    The Associate Enforcement Counsel will review the information provided by
    the Regional Administrator for use in tracking the Agency's overall consent
    decree enforcement efforts.  OHO will send the raw data to  NEIC to be used
    to- update the information in the automated uianageraent information system.
    Enforcing Consent Orders and Consent Decrees
    A carefully designed program for the enforcement of consent orders or con-
    sent decrees should begin at the settlement negotiation and document draft-
    ing stages.  The final negotiated agreement must state the tenns of any
    such settlement clearly and precisely.  This will eliminate potential areas
    of dispute aftar an order or decree is issued and will facilitate enforce-
    ment of a settlement should noncompliance occur.
    
    The Agency may use a variety of remedies to address violations of consent
    orders and decrees.  However, any such response must be prompt and firm to
    reflect the importance that the Agency attaches to such agreements.
    
    Enforcement of administrative consent orders is accomplished either by
    assessing additional civil penalties or by filing for Lnjunctive relief.
    The procedures for initiating such actions are set forth in Chapters Seven
    and Eight.
    
    Enforcement of judicial consent decrees involves the use of stipulated
    penalties, motions to enforce the decree, and civil and criminal contempt
    of court motions.*
    Stipulated Penalties
    
    Most consent decrees should contain provisions for stipulated penalties
    (i.e.. penalties that are agreed upon by the parties,  at the tine of enter-
    ing into the settlement, as being payable in the event that the defendant
    violates a provision of the decree).  Such provisions  usually serve as in-
    centive for ensuring that the terms of a settlement agreement are nee.
    
    Generally, EPA should demand payment of a stipulated penalty when a defend-
    ant's noncompliance with a portion of a consent decree threatens timely
    final compliance.  However, such a demand for payment  may not always be
       For a discussion on enforcing federal district court orders generally,
       see EPA's "Guidelines for Enforcing Federal District Court Orders"
       (April 18, 1984).
    

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    Chapter Ten    	Poat-Settleaent Enforcement
    appropriate'  For example, if the amount of the penalty is small and final
    compliance is achieved on schedule, then payment for violations of sched-
    uled increments of progress may not be required.  On the other hand, if
    noncompliance with the consent decree is of a serious nature, then Che
    Agency should not only demand payment but should also consider invoking the
    power of the court to enforce the decree.
    
    
    Motions To Enforce the Consent Decree and Contempt of Court Motions
    
    For serious violations of a settlement agreement, the Agency may seek to
    enforce the terns of the agreement by filing a "Motion To Enforce the Judg-
    ment."  Such a motion is filed with the same court that had originally
    issued the consent decree and requests the court to exercise its authority
    to ansure compliance.
    
    A motion to enforce the judgment may assert that the defendant has failed
    to comply with the consent decree provisions that relate to the agreed-upon
    compliance schedule or operation and maintenance requirements and that no
    provision of the decree for excusing noncompliance (e.g., a force majeure
    clause) is applicable.  The motion may also request that the court compel
    payment of any uncollected, stipulated penalties.
    
    A motion to enforce the judgment may be accompanied by a "Motion To  Show
    Cause Why Defendant Should Not Be Held in Contempt."  Such a contempt
    motion is usually reserved for the most serious violation of a consent
    decree (e.g., willful and knowing violations).  If found in contempt, a
    defendant may be subject to substantial civil penalties or imprisonment, or
    both.
    

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    Chapter  Ten	   Exhibit 10-1
    
    
                        Consent Decree Tracking System Guidance
                     CONSENT DECREE TRACKING SYSTEM GUIDANCE
                     EPA GENERAL ENFORCEMENT POLICY t CM - 19
                                          UNITED STATES ENVIRONMENTAL
                                               PROTECTION AGENCY
    
                                          EFFECTIVE OATS:  0^201983
    

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    Chapter Ten
    Exhibit 10-1
                                  TABLE OP CONTENTS
                                                                  PACE
                                                      	 i
            Seep* and Exclusions	 2
            TRACKING SYSTEM	 . 4
            Tracking System Objectives	 4
            Key Tracking System Components	 4
               1. Tfce Repository	 5
               2. Th« Consent D«cr«« library	 S
               3. Compliance Monitoring	 6
               4. Compliance Tracking	 7
            Tracking System Operation	 3
            OFFICE RESPONSIBILITIES	 10
               1. National Enforcement Investigations Center	 11
               2. Regional Administrator's office	 12
               3. Office of Enforcement and Compliance Monitoring.. 13
    

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    Chapter. Ten	   Exhibit  10-1
             INTRODUCTION
    
                 The  Environmental  Protection  Agency  (EPA) places  *  high
             priority  on cement  decree  compliance.  Thi*  is  consistent
             with the  Agency's Congressional mandate to  enforce  the nation's
             environmental  lav*.   It is  also consistent  with  E?A's  legal
             responsibility  to the Courts  of ensuring  that the teras  of
             each consent decree  are net properly.
                 A  uniform  national approach to consent decree  caapliance
             tracking  can enhance the Agency's  consent decree enforcement
             efforts.  This  uniform  approach should incorporate  an
             automated Management information system intended primarily
             for consent decree compliance  tracking.  This will  enabl*
             Agency  managers tot
    
                      • Address  consent decree compliance problems quickly
                        and effectively.
                      • Assess overall  national trends  in EPA's consent
                        decree enforcement efforts.
                      • Respond  quickly and accurately  to Congressional
                        and public  inquiries concerning the compliance
                        status of the Agency's consent  decrees.
    

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    Chapter Ten
    Exhibit  10-1
                                          -2-
    
                  Until  netncly,  EPA  had  no unliars  automated  information
             system intended  primarily Cor consent  decree  compliance
             cracking.   Some  Agency offices do use  automated  information
             systems  to  track source compliance  generally.    However,  the
             us* of  these  systems  varies throughout the  Agency,  making it
             difficult to  Integrate compliance data.   Moreover,  some
             offices  track consent decree  compliance  by  hand, resulting
             in lengthy  information retrieval times.
                  On  August 4,  1982, EPA managers met  to discuss establijaing
             a uniform national  approach to consent decree  compliance
             tracking which incorporates the use of an automated information
             system intended  primarily for tracking consent decree
             compliance.  They  agreed  that this  tracking system should
             build upon, rather  than replace, existing information  systems
             maintained  by various Agency  enforcement  offices.
                  Subsequent  to  that meeting, the National  Enforcement
             Investigations Center (NBIC), working  closely  with the Office
             of Legal and  Enforcement  Policy (OLEP),  developed  ideas  for
             such  a  tracking  system.   This document describes the proposed
             tracking system  and Agency office roles  in  implementing  and
             maintaining it.
             Scope  and  Exclusions
                  This  tracking  system will  include  information on  all
             court entered  judicial  consent  decrees  in enforcement  cases  to
    

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    Chapter Nln«	«	             Exhibit 9-3
       report, for easy reference by the reviewing  personnel  at  EPA
       Headquarters, the Justice Department, and  the  United States  Attorney's
       Office.*  The existence of evidentiary support  for  the factual
       allegations contained in the referral is crucial.   The end goal  of
       the referral process is a successful prosecution.   The question  is
       not, ultimately, what happened but whether it  can be proved  at  trial.
    
       Required Information.  In completing Section V,  the following  items
       should be included (although not necessarily in  separate  portions of
       the section):
    
            •  A detailed review of all facts constituting the alleged
               criminal behavior.  Speculation should  be avoided.   If  the
               evidence currently available does not  support  one or more
               elements of the offense(s) under investigation, this should
               be highlighted, since this will assist  In focusing future
               investigation by grand jury or otherwise;
    
            •  Any statements by the subject(s) of  the  investigation
               pertaining to the subject matter of  the  investigation.
               Written as well as oral statements should be included;
    
            •  Evidence indicating willful or knowing  behavior by the
               investigative targets;
          The following paragraph is an example of the chronological
          presentation of evidence supported by exhibits:
    
              On May 1, an NPDES permit was issued to Company X
              that contained the following provisions...(see
              Exhibit I, NPDES permit).  On May 5, the plant's
              waste treatment system ceased operation.   (See
              Exhibit 2, Interview Report of Informant A.)  At that
              time, Company X faced several imminent production
              deadlines.  (See Exhibit 3, Sales Contract Between
              Company X and Company Y.)  Production continued,
              resulting in the discharge of raw sewage between May
              5 and July 5.  (See Exhibit 4, Analytical  Reports
              Provided by Former Chemist of Company X.)  Discharge
              monitoring reports submitted by Company X  for this
              period nevertheless falsely reported compliance.
              (See Exhibit 5, Company X DMRs.)  Moreover,  In
              response to an EPA inquiry, Company X reported  the
              successful operation of Its waste treatment  system  on
              July 1, almost two months after the breakdown.   (See
              Exhibit 6, Letter, Company X to EPA.)
    

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    Chapter Nine         	;	Exhibit 9-3
            •  Any facts that bear on the reliability of  the  available
               evidence.  This might include, for example,  equipment
               breakdowns during technical sampling, or prior inconsistent
               statements of a government witness.  Ultimate  conclusions
               should not be made on the reliability of a  particular  wlcness
               or piece of evidence in the report; rather,  simply  include
               all facts relevant in assessing the reliability; and
    
            •  A complete chronology of contacts between EPA  and  the
               subject(s) concerning the environmental problem  underlying
               the referral.
    
       Section VI—Legal Issues.  In preparing a case for  trial,  the  Justice
       Department's prosecutor will want to consider both  the weaknesses  in
       the government's case and the affirmative defenses  available to  the
       defendants.  In completing this portion of the referral  package,
       consider:
    
            •  Legal Defenses.  This might include, for example,  arguments
               that a discharge of pollution was not into  a navigable water
               of the United States and therefore not regulated under the
               Clean Water Act; or that dumping activity did  not  involve  a
               "hazardous waste" identified or listed under the Resource
               Conservation and Recovery Act.
    
            •  Evidentiary Challenges.  This might Include, for example,
               challenges to the methods used to obtain evidence,  or  co  the
               government's ability to authenticate evidence  due  to a break
               in the chain of custody.
    
            •  Equitable Defenses.  This might include, for example,  EPA's
               vascillation of regulatory standards, the cost of  compliance,
               labor difficulties at the facility, etc.
    
       In completing this section, speculation should be avoided.   Potential
       defenses should not be included unless :iere is some basis  for their
       assertion under the facts of the case.
    
       Section VII—Environmental Impact.  This section should  provide  an
       assessment of the significance of the environmental harm or human
       health hazard resulting from the conduct under investigation.
       Precise statements in this area are not essential  elements  of  most
       criminal offenses and will often be difficult to support scientifi-
       cally.  When the  investigation focuses on historical rather than
       ongoing conduct,  or involves falsified technical documents, the
       task becomes even more difficult.  Normally, however,  an educated
       estimate—based on the type of pollutant involved,  the location,  and
       nornal operating  capacity of the facility—can be  made.   Where chis
       is possible, the  information will provide one significant  basis  for
       assessing the gravity of  the misconduct.
    

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    Chapter Ten
    Exhibit 10-1
                                          -3-
    
             which EPA is • party,  «• well »» the status of compliancs
             efforts required by these decrees.   It will not includet
                       • State consent decrees to which EPA is net a party.
                         This includes cases in  which SPA may have a
                         continuing interest in  the compliance status  o£
                         th« d«cr«« «v«n tAougft, for «xampl«, EPA originally
                         dcftrrtd th« underlying enforcement action to
                         appropriate State authorities.  This topic will Se
                         discussed  generally in  guidance entitled,
                         •Coordinating ?ederal and State Enforcement Actions*.
                       • federal facilities Compliance Agreements.  These
                         agreements are negotiated with Federal facilities
                         to bring them into compliance with applicable
                         environmental statutes.  Executive Order 12088
                         provides a non-judicial mechanism for negotiating
                         these agreements,  within EPA, the Office of
                         Federal Activities (OPA) has the lead responsibility
                         for tracking compliance with these compliance
                         agreements.  OPA is developing guidance on this
                         area entitled, 'Federal Facilities Compliance
                         Program -  Resolution of Compliance Problems*.
                  Also, considerations in selecting an appropriate enforcement
             response to a consent  decree violation are discussed generally
             in forthcoming guidance entitled, 'Enforcing Consent Decree
             Requirements".
    

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    Chapter Ten
    Exhibit 10-1
                                          -4-
             TRACKXNG SYSTEM
             Trie*ing System Objectives
    
                 TM« uniform national  approach  to  consent  decree  compliance
             tracking seeks  to achieve the  following objectives:
    
                       •  Facilitate  consent  decree enforcement  by uniformly
                         tracking  the compliance  status  of all  S7A  consent
                         decrees.
                       •  Keep senior Agency  manageneaent  inforaetf of  tne
                         compliance  status of  all EPA consent decrees.
                       *  Provide timely,  accurate information upon  request
                         to  Congress and  the public  concerning  the  compliance
                         status of EPA consent decrees.
             Key  Tracking  Syatea Components
                 To  achieve  theae objectives,  the  tracking  system  relies
             on four  key componentst
                       1.  The Repository
                       2.  The Consent  Decree  Library
                       3.  Compliance Monitoring
                       4.  Compliance Tracking
             These  components are described below.
    

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    Chapter T«n
    Exhibit 10-1
                                          -5-
             1.  The Repository
                  Th« Repository is a collection of physical copies of over
             425 EPA consent decrees NEIC has on file.  NEIC assembled
             this collection with th* assistance of the Regional Offices, c.ie
             Department of Justice (DOJ), and the Federal Courts.  SEIC
             is  continuing its efforts to complete the collection of consent
             decrees to be filed in the Repository.  To facilitate this
             effort, the Regional Counsels should forward copies of all
             new coneent decrees to SEXC for inclusion in the depository.
                  HEZC maintains the Repository and, upon request, can
             provide a copy of any EPA consent decree on file to requesting
             Agency offices.
             2.  The  Consent Decree Library
    
                  NIXC developed,  and will maintain,  the consent decree
             library as an automated management information system to
             store summaries of each EPA consent decree on file in the
             Repository.  Each consent decree summary will include the
             following information!
                       • Case naaw.
                       • Date the  consent decree was  entered and,  if
                         applicable, the date the decree was modified.
                       • Consent decree requirements, Including due dates.
                       • Information indicating when- these requirements
                         were met.
    

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    Chapter Ten	                      Exhibit  10-1
             SEIC  will  develop  these summaries *nd send them to the Regional
             Counsels'  Office*  to review and confirm their accuracy.  The
             information  in the  library can Be updated by NEIC, based upon
             information  tent to N2XC ay the Office of Enforcement and
             Compliance Monitoring  (CECM), to reflect the current compliance
             status of  BPA consent  decrees.
                  The library contains summaries of most SPA consent
             decrees on file.  Csaputer terminals will link EPA Head-
             quarters and the Regional Offices electronically with the
             library.   "~:c will provide CSCM and Regional Office personnel
             training on  now to  use the library.
                  Direct  access  to  the library will provide the Agency's
             attorneys  and onforcement staff with information on active
             or  terminated consent  decrees which may be useful in drafting
             and negotiating new consent decrees.  Direct access to the
             library will also provide Regional managers with information
             on upcoming  requirements which may be useful in targeting
             source inspections  and in projecting resource needs.
             3. Compliance Monitoring
    
                 Consent decree compliance monitoring is presently
             conducted  to determine whether individual consent decree
             requirements are properly net.  Compliance monitoring activities
             often  include source reporting and on-site inspections.
    RCBA Compliance/Enforr
    

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    Chapter Tea
                                  Exhibit  10-1
                                         -7-
    
                  Onder  the national consent decree tracking system, the
             Regional Program Offices are primarily responsible for con-
             ducting monitoring activities in accordance with national
             guidance ia«ued by EPA Headquarters.  The Regional Program
             Offices will continue to conduct compliance monitoring using
             whatever automated information system (e.g., PCS for Water
             Enforcement) t.ley choose to use to assist them in their
             monitoring  efforts.
             4. Compliance TracKing
    
                 Compliance tracking is the gathering and compiling of
             compliance  information which Agency management can use to
             determine and assess general trends in the Agency's consent
             decree enforcement efforts.  Compliance tracking will be
             based upon  the information gathered by the Regional Program
             Offices  in  the course of conducting their compliance monitoring
             activities.
                 OCCM is responsible for tracking EPA'i enforcement efforts
             on a national level, including whether the Agency is meeting its
             legal responsibility to the Courts for ensuring that consent
             decree requirements are met.  Consequently, OCCM will be
             principally responsible for compliance tracking, through use
             of the automated Consent Decree Library operated by MCXC, to
             ensure that Agency consent decree enforcement efforts are
             adequate.
    RC   Compliance/Enforcement
    LO-13
    Guidance Manual 1984
    

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    Chapter Ten
    Exhibit 10-1
                                          -8-
    
                  To facilitate OCCM compliance cracking activities,
             The Office at Management operation* (OHO)  will send each
             Regional Administrator periodic information requests concerning
             the compliance ataeua at each consent decree in the Region.
             These information requests  will serve as  a tool to ensure
             that Regional Offices focus on source coapliance with individual
             milestones in each consent  decree.
             Traemnq  System Operation
    
                  The  operation of  the  tracking syste* will draw from the
             information stored in  the  consent  decree  library.   At the
             beginning of each quarter.  OHO will send  to each Regional
             Administrator two computer  print-outs  (see attachments)
             containing conaent decree  information  from the consent decree
             library.   The computer print-outs  will listi
    
                       a. All consent decree milestones in  each  Region
                          which are scheduled to come  due during the
                          present quarter (prospective).
                       b. All consent decree milestones in  each  Region
                          for which the  Region  was  responsible for
                          ensuring  compliance during the preceding
                          quarter  (retrospective).
    

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    r ^
                Chapter Ten
                                   Exhibit  10-1
                                                      -9-
    
                              The  prospective print-out  is  intended as • tool for use
                         by  the  Regional  and OCCM management generally.  It My be
                         used* Cor example* as an alert  device to assist each Regional
                         Administrator  in advance preparations for ensuring that
                         consent decree mileetones coming due during the quarter are
                         met properly.
                              The  retrospective print-out will contain instructions
                         asking  each  Regional Administrator to respond to OHO> within
                         ten working  days of the transmission date ot the print-out,
                         with the  following summary  information:
                                   •  Whether each consent decree milestone which came
                                     due  during the  preceding quarter was achieved.
                                   •  The  consent decree  milestones which were not
                                     in compliance.    :-
                                   •  Whether any consent decree milestones were
                                     renegotiated.
                                   *  If any milestone  is not achieved or renegotiated,
                                     the  enforcement response the Region intends to
                                     take to ensure  that the milestone is achieved.
                              The  Associate enforcement  Counsels in OECM will review
                         the information  provided by the Regional Administrator for
                         use in  tracking  the Agency's  overall consent decree enforce-
                         ment efforts.  OHO will send  the raw data to NCIC to be
                         used to update the Information  in  the consent decree library.
                RCSA Compliance/Enforcement
    10-15
    Guidance Manual 1984
    

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    Chapter Ten	_____	Exhibit 10-1
                                      -10-
    
              It will be important for the Regional Administrator to
         oak* sure that th« response la properly coordinated  between
         the various offices in the Region (e.g.,  the Regional
         Program Offices and the Regional Counsels'  Offices).   This
         will better ensure that the Information in the tracking  system
         is accurate and complete.
    
         OfPICE R£SPCNSI3:t.IT:SS
    
              Three Agency components will share responsibilities in
         implementing and maintaining the consent  decree tracking
         system.  These three offices aret
    
                   1. NEIC
                   2. Regional Administrators
                   3. OECM Headquarters
         The respective'responsibilities of these  offices are specified
         below.
    RCSA Compliance/Enforcement          10-16                Guidance Manual 1984
    

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    Chapter Ten
    Exhibit 1.0-1
                                          -11-
                  NKIC's  responsibilities generally will  involve  the
             •tare-up operation*  and  the maintenance of the  Repository  and
             the Consent  Decree Library.  This will include  the following:
                       •  Completing the collection of physical copies of
                         SPA consent  decrees  to be filed  in  the Repository.
                       •  Maintaining  the Repository and aaking available  to
                         Agency personnel upon request copies of  consent
                         decrees  filed in the Repository.
                       •  ensuring that suoaaries of all EPA  consent decrees
                         filed in the Repository are fed  into the Consent
                         Decree Library.  NCIC will send  copies of the
                         sussuries to the Regional Counsels' Offices for
                         review to ensure the accuracy of  the summaries.
                       •  Maintaining  the Consent Decree Library and ensuring
                         the ssMoth technical operstion of the library.
                       •  Providing OCCN and Regional Office  personnel with
                         training on  hew to use the library  and establishing
                         a contact point in NKIC to respond  to Agency
                         inquiries on proper  library use.
                       •  Updating the Consent Decree Library with compliance
                         intonation  sent to  NBIC quarterly  by OHO.
                                              "!_ 1 7
                                                                  Guidance  Manual  1984
    

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    Chapter-Ten
    Exhibit 10-1
                                          -12-
             2.  aeoional  Administrators
    
                  The Regional Administrator*  are  ultimately  responsible
             for keeping  informed of  the  compliance  status  of the  consent
             decrees  in their Regions, so thac they  can act promptly to
             remedy any identified instances of  noncompliance.   It will be
             iaportant for  the Regional Administrator  to sake sure that
             the Region's consent decree  compliance  efforts are  properly
             coordinated  between  the  Regional  Program  Offices,  the Regional
             Counsel's Office, and other  appropriate offices  in  the Region.
             With regard  to the consent decree tracking system,  these
             compliance efforts will  includei
    
                       •  Reviewing the consent decree  summaries  prepared
                         by NBIC  for  accuracy  prior  to final  entry into
                         the Consent  Mere* Library.
                       •  Forwarding to NCIC copies of  all future EPA
                         consent  decrees  that  have been entered  in Court,
                         including any renegotiated  consent decrees.
                       •  Conducting compliance monitoring in  accordance with
                         policy issued by the  national program offices  to
                         determine if the terms  of each consent  decree
                         are met.   Regional Offices  may use whatever
                         automated information system  they  choose  to
                         assist them  in monitoring.
    

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    Chapter Teo
    Exhibit 10-1
                                          -13-
    
                       •  Responding to OHO requests for Information
                         concerning consent decree compliance status.
                       •  Using the Consent Decree Library as may be
                         necessary to ensure the compliance at
                         existing consent  decrees and in drafting and
                         negotiating new consent decrees.
             3.  JJE'C'.M
                  Under tne  cracking system.  OCCM's general responsibilities
             of  tracking consent decree  compliance will be shared by CHO
             and the  Associate  Enforcement Counsels.   These responsibilities
             will includes
    
                            • Sending quarterly information requests
                             inquiring  about the compliance status of the
                             consent decrees in each Region to each
                             Regional Administrator.
                            • Forwarding summary information from
                             the Regional Administrator to NEIC to use
                             in updating the Consent Decree Library.
                            • Forwarding to NEIC copies of all  future  EPA
                             consent decrees in nationally managed cases,
                             Including  any renegotiated consent decree in
                             which the  Associate Enforcement Counsel  took
                             the lead in the renegotiation.
         "Vimnl
    

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    Chapter Ten	        '	Exhibit  10-1
                                         -14-
    
                            • Tracking the overall SPA consent decree
                             enforcement effort using information
                             contained in the Regional Adainaerator's
                             responses to OECM'a quarterly conaent
                             decree compliance information requests.
                            • Evaluating each Region's accomplishments
                             in monitoring conaent decree compliance and
                             responding to noncorepliance problems.
    
                 The success of this uniJora national system for tracking
            consent decrees depends upon how well Agency offices work
            together in implementing and maintaining the system.  If
            properly implemented and maintained, the cracking system can
            enhance SPA'S consent decree enforcement efforts.
                 If you have any questions concerning the system, please
            contact Michael Randall of OLE? at rtS 382-2931 or
            Gerald Bryan of OHO at PTS 382-4134.
            Attachments
    

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     Chapter Ten
                                    Exhibit  10-1
             Attachment A
               3AMPU PHOSPCCTIVt RETORT FOR THE QUARTER BEGINNING 7/1/83
             Listed below are the consent  decree ailestones which will
             coa« due during the present quarter.
                1. Republic Steel
    Chicago,  111
                      Mileatonei  Place  purchase order
                      Due date:  9/15/83
                2. Great Lakes Steel
    Zug Island,  HI
                      Milestonei  Coaaence  construction
                      Due date:  8/1/83
                3. Pord Motor Co.
    Dearborn,  Ml
                      Milestone: Demonstrate  compliance
                      Due datet  9/30/S3
    RCRA Coapliance/Eaforcement
      10-21
    Guidance Manual  1984
    

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    Chapter Ten
                                       Exhibit  10-1
             Attachment 3
    
               SAMPLE RETROSPECTIVE REPORT FOR THE  QUARTER  ENDED  6/30/83
    
             Please provide the requested information  for the
             consent decrees milestones  listed below.
             A.  Milestones  due  in  quarter  dated  4/1/83  to  6/30/33i
    
                1.  Repuolie Steel     Chicago,  111
    
                      Mileetonei Submit  engineering plan
                      Due date:  6/30/83
    
                   a.  Mas Milestone  Achieved?
                      (yes  or no)
    
                   a.  If not achieved, was milestone  renegotiated?
                      fyes  sr no)
    
                   c.  If renegotiated, please  Indicate  new milestone.
                      (e.g., new Milestone date  due is  9/30/83:
    
                   d.  If not achieved or renegotiated,  what action  is
                      contemplated to bring source back into  compliance?
                      (e.g., referral to OLEC  HQ)
             B.  Milestones  due  in  previous  quarters which were  not met
                in those  quarters  and  had not  been  renegotiated or
                achieved  as of  3/31/83?
                1.  Great  Lakes  Steel
    Jug Island,  MI
                      Milestonei  Place  purchase order
                      Due  datet   1/1/83
    
                   a.  Has  milestone  been  achieved  since  the  previous update?
                      (yes or no)
    
                   b.  If not  achieved,  has milestone been  renegotiated since
                      the  previous update?
                      (yes or no)
    
                   c.  (Repeat above)
    
                   d.  (Repeat above)
             C.  Total number of  consent  decrees wieh milestones not
                met or renegotiated  by 6/30/83.                          (number)
    
             D.  Total number of  consent  decrees this quarter
                brought back into  compliance  *it.i milestone
                requirements due to  action  (including
                renegotiation)  taken by  the Region?                      (number)
    RCRA Compllance/Eaforceaent
         10-22
    Guidance Manual 1984
    

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    Chapter Eleven
    Special  Considerations
    RCRA Confidancial Business  Information
    Introduction
    
    Compliance/enforcement personnel may need, on occasion,  co review  and use
    information that is entitled  to confidential treatment under Section 3007
    of RCRA.  RCRA Confidential Business Information (CBI) is any form of
    information that Is submitted to EPA or an EPA contractor by a person;
    business; partnership; corporation; association; local,  state,  or  federal
    agency; or foreign government and  that contains trade secrets or commercial
    or financial information that has  been claimed as confidential by  the sub-
    mitter and has not been determined to be nonconfidential in accordance vith
    Che procedures in 40 C.F.R. Part 2.
    
    EPA recognizes that all reasonable measures must be taken to prevent the
    unauthorized disclosure of RCRA CBI.  EPA employees are  prohibited from
    disclosing, in any manner or  to any extent not authorized by lav or EPA
    regulations, any RCRA CBI to  which they have access in the course  of their
    employment or official duties.  Employees of other federal agencies are
    also prohibited from disclosing, in any manner or to any extent not author-
    ized by law or the terms of an agreement between EPA and the other agency,
    any RCRA CBI released to them by EPA.  In addition, RCRA CBI is to be
    managed by EPA contractors and subcontractors In accordance with the proce-
    dures outlined below.
    
    The following federal statutes and regulations are applicable to the
    management of RCRA CBI:
    
         •  42 U.S.C. S6927(b), Disclosure of Data (RCRA);
    
         •  5 U.S.C. $552, Freedom of  Information Act;
    
         •  40 C.F.R. Part 2, Confidentiality of Business Information;
    
         •  41 C.F.R. Chapter 15,  Public Contracts and Property Management; and
    
         •  18 U.S.C. §1905, Disclosure of Confidential Business Information.
    RCRA Compliance/Enforcement          11-1               rL.-i^-~.-<» Man.,:.!  I
    

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     Chapter Eleven	Special Considerations
     Penalties
    
     Violation of  the regulations in 40 C.F.R. Part 2 constitutes grounds for
     dismissal,  suspension,  fine, or other adverse personnel action.   In addi-
     tion, willful violation of  the regulations may subject the violator to
     criminal prosecution under  18 U.S.C. §1905, which provides fines  up to
     $1,000  or imprisonment  up to one year, or both.
     Document Control
    
     Procedures  for gaining access  to RCRA C3I and procedures relating to the
     use  of RCRA CBI in case preparation, administrative hearings, and civil and
     criminal actions are briefly outlined below.  However, the RCRA Confiden-
     tial Business Information Security Manual and Contractor Requirements for
     the  Control and Security of RCRA Confidential Business Information should
     be consulted in all matters pertaining to document control.
    
     Access of EPA Employees to CBI Documents.  Only Agency employes whose names
     appear on the RCRA Authorized  Access List may have access to RCRA CBI.  The
     following steps must be taken  for an employee to be placed on the list:
    
         •  The employee must sign Section III (Confidentiality Agreement for
            EPA Employees) of EPA  Form 8710-U (Exhibit 11-1);
    
         •  The appropriate authorizing official must complete and sign Section
            I (Authorization far Access to RCRA Confidential Business Informa-
            tion) of the form.  An authorizing official must be equivalent to a
            supervising Division Director, or above, and the official may only
            authorize those employees under his or her supervision;
    
         •  The Authorization Form must be taken to the local Document Control
            Officer (DCO) or Document Control Assistant (DCA), who will certify
            (by signing and dating 'Section IV) that all necessary forms have
            been completed and forwarded to the RCRA CBI DCO, Office of Program
            Management and Support, OSV, EPA Headquarters.  For all employees
            with permanent appointments or those with temporary appointments of
            700 hours or more per  annum, and those employees who require full
            field investigation, the local DCO or DCA may assume that the
            proper forms were completed at the time of employment.  Summer
            employees of 4 months  or less and temporary employees of 3 months
            or  less are not to be  processed for access to RCRA CBI without
            written authorization  by the appropriate Division Director; and
    
         •  The DCO or DCA will place the employee's name on the RCRA Author-
            ized Access List and notify the employee, the authorizing Division
            Director, and the employee's Branch Chief.
    
     When an employee who is authorized to handle RCRA CBI terminates or trans-
     fers to a position not requiring access to RCRA CBI, he or she muse .sign
    .the  Confidentiality Agreement  for United States Employees Upon Tenninacion
     or Transfer (EPA Form 8710-10; Exhibit 11-2) and submit the form co che
     RCRA Compliance/Enforcement          11-2               Guidance Manual  1984
    

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    Chapter Eleven	Special Conaideratiooa
    
    
    local DCO or T)CA, who will ensure that all CBl documents have been re-
    turned.  The DCO will immediately delete the employee's name from the
    Authorized Access List and will notify the authorizing Division Director or
    the employee's Branch Chief.
    
    Access of EPA Contractors and Subcontractors to CBI Documents.   EPA con-
    tractors and subcontractors may be furnished RCRA CBI or allowed to collect
    RCRA CBI only when such disclosure or collection is necessary for the
    performance of the work specified in an existing contract.   The following
    steps must be taken before a contractor is allowed to handle RCRA CBI:
    
         •  An authorizing official [i.e.. a Division Director  (or  equivalent)
            or above] must request approval for contractor access from the
            Office Director (EPA Form 8710-5;  Exhibit 11-3);
    
         •  EPA's contract with that contractor must contain clauses applicable
            to management of CBI.  Such clauses include:
    
            —  Treatment of Confidential Business Information,
    
            —  Security Requirements for Handling Confidential  Business
                Information,
    
            —  Computer Security Requirements, and
    
            —  Screening Business Information for Claims of Confidentiality;
    
         •  The contractor must prepare a security plan for Agency  review.  The
            plan should address access to RCRA CBI (including detailed proce-
            dures for handling RCRA CBI), facility security, and employee
            training;
    
         •  Upon receipt of the plan, EPA will inspect the contractor's
            facility for compliance with security requirements;  and
    
         •  EPA will notify the affected businesses of the impending disclosure
            and give an adequate time for a response.
    
    Before an employee of a contractor can be authorized for access to RCRA
    CBI, the employee must:
    
         •  Be screened by a designated official of the contractor  to ensure
            the honesty and trustworthiness of the employee;
    
         •  Be given a written authorization for access to RCRA  CBI by the
            designated official of the contractor;
    
         •  Be given training on his or her responsibilities for the security
            and control of RCRA C3I; and
    
         •  Sign a Confidentiality Agreement with EPA (Note, upon termination
            or transfer, a contractor's employee must sign EPA  Form 8710-14;
            Exhibit 11-4).
                                                                    Manual 1984
    

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    . C          Chapter Eleven	Special Conaideratioaa
    
      "
               When  Che above conditions have been met,  Che contractor employee's name
               will  be placed on  the RCRA CBI Authorized Access List.
    
               Obtaining R'CKA CBI.  To obtain a docuoenc containing RCRA CBI,  the author-
               ized  person muse request Che document  from  the DCO or OCA, who  will verify
               that  the requester is on the Authorized Access List.
    
               If the requester has access to an acceptable storage cabinet, he or she may
               check the document out for a maximum of 30  days, renewable at the discre-
               tion  of the DCO or DCA; otherwise, the document must be returned Co the DCO
               or Che DCA by close of business che same  day ic is logged out.  An accept-
               able  storage  cabinet is, at a minimum, a  metal cabinet with a bar and an
               EPA-approved, three-way changeable combination padlock.
    
               The DCO or DCA will enter the appropriate information in the user sign-out
               log and will  ensure that Che document  has a document control number, a
               cover sheet,  and,  at a minimum, a CBI  stamp on the first page and on the
               back  of the last page.  The requester  must  sign the cover sheet of the
               document.
    
               The requester is at all times responsible for handling RCRA CBI in accord-
               ance  with RCRA CBI control and security procedures.
    
    
               Use of CBI in Case Preparation
    
               In reviewing  an inspection file and in the  course of case preparation,
               compliance/enforcement personnel may require access to RCRA CBI.
    
               An inspection file may contain a CBI inspection file, which includes
               information chat was gathered during a RCRA inspection and was  claimed as
               being confidential.  When an inspector reCurns from an inspection with
               information chat has been declared confidential, the information is given
               immediately to the DCO or DCA, who assigns  a document control number to the
               confidential  material.  In addition, the  inspector informs the  DCO or the
               DCA of any physical samples that have  been  claimed confidential.  Such
               samples are also assigned a document control number, which is given to
               laboratory personnel for use in completing  chain of custody and laboratory
               analysis forms.  The CBI file may also contain che inspection report if the
               inspector has included CBI in che report.   Once the CBI has been logged in
               by the DCO or DCA, review of che file  must  be conducted in accordance with
               RCRA  CBI control and security procedures.
    
               When  preparing a report based on review of  the inspection file, compliance/
               enforcement personnel should eicher:
    
                    •  Reference  RCRA CBI material in a  nonconfidential manner or by
                      document control numbers; or
    
                    •  Include the CBI material in che report and treat the entire repor:
                      as a  confidential document.
               RCRA Compliance/Enforcement          11-4                Guidance Manual  1984
    

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    Chaocer Eleven       	Special Conaideratlona
    In preparing"a complaint or other pleading that is based in total, or in
    part, on RCRA CBI material, compliance/enforcement personnel should prepare
    the pleading so that it consists of a confidential and a nonconfidential
    document.  The nonconfidential document should be drafted so as to state
    the charge or substance of the pleading without disclosing confidential
    information.  The confidential document should contain the CBI material and
    must be treated in accordance with RCRA CBI security and control
    procedures.
    
    Special procedures oust be used when filing a complaint or other pleading
    that contains CBI.  For example, when filing a CBI complaint,  both the CBI
    document and the non-CBI document must be hand-delivered to the Hearing
    Clerk for simultaneous filing.  Copies of the complaint may be made after
    the original pleading has been staaped in by the Hearing Clerk.  This
    ensures that the date and time of filing appear on each subsequent copy.
    The DCO or DCA mutt then give the original pleading and each copy contain-
    ing CBI, except the respondent's copy, a document control number and a
    cover sheet.  The original CBI complaint remains with tha Hearing Clerk,
    who executes a RCRA CBI loan receipt.
    
    EPA delivers a copy of the CBI complaint to the respondent by first placing
    the document in an envelope bearing the respondent's name and mailing
    address and the statement "RCRA Confidential Business Information—To Be
    Opened by Addressee Only."  This envelope, plus a copy of the non-CBI coo-
    plaint, is then placed in another envelope bearing the respondent's name
    and mailing address, but without the statement.  Finally, the entire pack-
    age is sent by registered mail, return receipt requested.
    Use of CBI in Administrative Hearings
    
    Section 3007(b)(l) of RCRA and 40 C.F.R.  S2.305(g) provide that confi-
    dential information may be disclosed when it is relevant to any proceeding
    under the Act provided that such disclosure is made in a manner that will
    protect, to the extent practicable, the confidentiality of the information
    without impairing the proceeding.  In addition, Section 22.22(a) of the
    Consolidated Rules of Practice (CROP), which govern RCRA administrative
    hearing proceedings, provides that the confidentiality of trade secrets and
    other commercial and financial Information shall not preclude such
    information from being introduced Into evidence.  Under the CROP,  the
    Presiding Officer may make such orders as may be necessary to consider such
    evidence in camera (I.e.. in chambers; in private), including the
    preparation of a supplemental initial decision to address questions of law,
    fact, or discretion arising out of that portion of the evidence that is
    confidential.
    Use of CBI in Civil and Criminal Proceedings
    
    Department of Justice employees may be furnished RCRA CBI when prosecuting
    cases under the Act or providing legal assistance to EPA.  The Department
    of Justice, including the FBI, shall be presumed to meet EPA's security
    requirements.  However, any transfer of RCRA CBI documents from EPA co the
    

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    (n           Chapter Eleven	Special Cooaideratioas
    \\
    
                 Department af  Justice  must  be  accomplished through an EPA DCO or DCA,  and
                 all requirements  for security  of CBI  must be  met.   Authorized EPA
                 employees, when necessary and  with the  permission  of  a Division  Director or
                 above,  may discuss  RCRA CBI vith appropriate  Department of Justice
                 employees, either in person or on the telephone.   Any RCRA CBI discussed
                 must be clearly identified  as  such.
                 Release of Confidential  Information
                 Determining  Confidentiality
    
                 EPA's  Freedom of  Information  Act  (FOIA)  regulations  (40 C.F.R.  Part  2,
                 Subpart  B) contain a procedure  for  determining whether or  not  information
                 is  confidential.
    
                 Under  this procedure,  if  information  submitted to EPA has  been  claimed RCRA
                 CBI,  the information aay  not  be disclosed  to  the public until  a determina-
                 tion  has been made that the information  is not confidential, and  the
                 affected business has been given  30 days'  notice of  the determination and
                 an  opportunity to challenge the decision.   Final determinations are made by
                 the Office of General Counsel;  however,  initial determinations  may be made
                 by  the program offices (see 40  C.F.R.  §2.204).  If the program office
                 determines that the information may be entitled to confidential treatment,
                 the office must:
    
                      •  Deny any  FOIA request for information;
    
                      •  Write to  the affected business requesting substantiation  of  its
                         claim;  and
    
                      •  Refer the matter  to EPA's General  Counsel's  Office for  a  final
                         confidentiality determination.
    
                 If  the program office determines  that  the  information in question is
                 clearly  not  entitled to confidential  treatment, the  program office must
                 give  notice  of the decision to  the  affected business and,  after the notice
                 period ends, disclose the information  to the  requester.
                 Disclosure of RCRA CBI
    
                 Under certain circumstances,  EPA  may  disclose  RCRA  CBI  co specific persoas
                 outside  the Agency.   These  include  disclosures to Congress or  the Comptrol-
                 ler General [RCRA §3007(b)(4)  and 40  C./.R.  §2.209(b)], disclosures  to
                 other federal agencies  (40  C.F.R. §2.209(c)],  disclosures to federal courts
                 (40 C.F.R.  §2.209(d)J,  and  disclosures  to  contractors  [RCRA  §3007(b)(l) and
                 40 C.F.R.  §2.305(h)J.
                 RCRA
    

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    Chapter Eleven
                                                                   Exhibit 11-1
                    Authorization for Access to RCBA Confidential
                            Business Information (CBI)
    1. AUTHORIZATION FOR ACCESS TO RCftA CONFIDENTIAL BUSINESS INFORMATION IC8II
    • MWh *•**••
    it it tut rwoanvMitv ol MOt Autnonnnt Qnat RCRA CBI raouirad to Mrtorm 9»>t official dutiat.
    
    aOMva accni to RCRA CBI:
    " 	 ™ 	 "
    TITk* 1 LOCATIO*!
    II. A*fOiNTMtNT OF OCO AND OCAS
    II DDOJOvtl '» onnf lOHintH DCS or SCA. «u:!iorii:nf onion (Cixbon 9ir*etor or tBOvtl mgit uon :nu wevon.
    llOMATUHt *MO T1TV4
    o«rt
    III- CONPIOENT1ALITY AGREEMENT FOR E*A EMPVOVEES
    1 unowttand tltat 1 «>U San xxtti 10 orum Coniidtntial Butintu mlartnation Mom>ntd undtr tnt Atwurei Conicyaiion and
    RtcoMrv AalRCRAl. 1*3 U.S.C. 8901 «t wa.l. Thit team nat o*tn grantad >n Kcoroanc* «nu< my ollieai autwt u an tmoiovat
    ol tn« f mironmtntai arotietion Agancv.
    i undamand mat RCRA CBI mav not ea ditciowd tsctoi u authontad 9v RCRA and Aoa*cv 'tvuiationt. I undantand that U/MMT
    IB U.S.C 1909 1 am UaOM lor i ootuoM Ima ol up to $1.000 and/or mornonirnri for go to < vaar •« wiiiiuiiv aueoit BCBA
    CBI to any Btnox not luatariiid to itenit ai 1 win toHoo ow orocaou'ai ut loan m ma RCRA
    Contiganiui luttntu m«vmaiion Sacwity Manual.
    I KM raad and undantand tna orocadurai.
    SlOMATuMI Ttkl»««Nt MO
    o*ri
    'V- 1 aomty Otat all naenury .<*»«t^a« ottn comoiataa •"« torwaroad to tna HtHouanari Sacuntv Sranen.
    nOM*Tw*a LOCAL OCO/OCA riLa»«ONa to.
    OATI
    'Uuii 6a Oimisn Oirtctar lo> toui«aiantl or lOo*.
    "» •"Hoym oncnotfl in taction i.G wndat ' iietotiont" tna ttowwno raouf* aominitiritiM luii-daid mvmnaaiioni.
    &CBA Compliance/EnforceaenC
    11-7
    Guidance Manual 1984
    

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    Chapter  Eleven
                                                                                           Exhibit   11-2
                              Confidentiality  Agreeaent for United  States
                               Eaployees  Upon  Termination or  Transfer
                                            CONFIDENTIALITY AGREEMENT FOR
                                 UNITED STATES EMPIOVEES UPON TERMINATION OR TRANSFER
           in accordant* witn my official duiio *i m emMov** of tn* United Sutn I lav* Fad acctu to Confidtntiai Buunni information
           under OW Rnewrc* Canttnration ina Recovery Act (RCRAI 142 U.S.C. 6901 «t tag.).  I undirnand that RCRA  Confidential
           Buwwu information may net o* ditdotao ocaei u aulrwiMd by RCRA or Aajncy regulation*.
    
           I  certify mat I ft*** r*turn*d all COCMI of any RCRA Confiotnuai Buuneu information m my oou*uion to tn* Oocuiwnt Control
           Or»io*r u iMolxg m in* proetaum HI fertn in RCRA Conliatntm 8u«in«u Information Stcurity Manual.
    
           I  ao/H mat I will not r*mo>* any coawi of RCRA Canfiotntui 3uiintu lntormji;on 'rgm :f.i orcmiMi 3' rnt A;«ncv JOon ^v
           ttmiinition or •-•inrttr. I !urut*r lorn  tnat  I will not siictoH «ny RCRA Confiotntiai 3uiin*u Information :o my 30wn Jtttr
           my tarmmttion or tranitir.
    
           I  jnatnund '.rut u *n tmciov** 3' tn* United Suns «no rial had acrtu  to RCRA  Confidential Susmni Information, unoer
           IB U.S.C. <9CS i am '«0n for i oowBia fin* of uo :e SI.COO tnd/or .moritonment for ue to I  year if i wilfully aiieou RCRA
           Confidential 3unmu inlormation :o any person.
            if I *m mil *m«iov*d By tit* UnitN Suui. I Me urvMrtund uui I m«y e* lubwct to diKiplmwv taion lor «ioi»ion of tnu ««ri»
                                                                     if I lav* mad* my iut*m*nt of mttiriX r*eti k
    I t« iio-€U
    RCRA  Compliance/Enforcement
                                                  11-8
    Guidance Manual  1984
    

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    • r.
                 Chapter  Eleven
                                                                                                  Exhibit  11-3
                                      Bequest for Approval  of  Contractor  Access  To
                                        RCBA Coofidentlal Business Information
                                          REQUEST FOR APPROVAL OF CONTRACTOR ACCESS
                                           TO RCRA CONFIDENTIAL BUSINESS INFORMATION
                                                                              Otn
                      Tin* «M o**—
                                                                              TtMpnont No.
                             •"• c*»«f»n »um*»f hi
                      I. tn«f dncneii** o< conwtri. >*«Mi"t purpOM. iceet. i«n«m. «<• amtf i
                             dbi latm il n«cnunr.)
                                                                                  tContinv* an aw
                       II  4(h*t MCRA Cil will a* rwuirtd. KM »«v' (Continut on BKk it n*en>KY-l
                       in  (V,n can «CCM to MCNA Cll M r«guirw By UK centfKl? It to. ««(»«•« «nv «M :e «n«t •ntni on
                       il yaw M*ntOT mit '•autii. im oldc*  
                                                                   OHM* 0»«cnc lo
                        If* >v« 1710-1 I14-OI
                  RCRA Coapliance/Enforcement
    11-9
    Guidance Haaual  1984
    

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     Chapter  Eleven
                                            Exhibit  11-4
                      Confidentiality  Agreement for Contractor's  Employees
                                      Upon  Termination or  Transfer
                                 CONHOENTIAUTY AGREEMENT «OR COMPACTOR'S EMPLOYEES
                                             UPON TERMINATION OR •
            AI ut fnoiovf* o».
                                                                       . < contractor oaf forming work 'or tna Unitao Siaiat
            Emnro»im»»it« Prowction Agtnev. I "t»t KM aeota to ctrum Confioamiai Suiintu information tuommM unot' tn«
            ConMrvttton ut 9' in* comMny joon "iy
            ttmirutien or trtniftr.  I 'urtntr *0/M Itiit I will net aneow my RCRA CanfidtntKi Suiirwu intorminan (a «f I riam)  mada any ttatamam ol malarial 'K:I
                     t men itaiamant .1 laiaa or.(I wiiKuiiy concaai any matanai 'act.
    RCRA Compliance/EnforceaenC
    11-10
    Guidance Manual  1984
    

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    Appendix
    Contents                                                     Page
    
    
    1  RCRA Civil Penaicv Policv                                    A-I
    2  Additional Sources of Compliance/Enforcement
       Information                                                A-37
    RCRA Compliance/Enforcement            A-i          Guidance Manual 19S4
    

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    Appendix
                                                                       Contents
                                           A-ii
                                                         Guidance Manual 1984
    

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    r
             Appendix
             1      RCRA  Civil  Penalty  Policy
                                                TABLE OF CONTENTS
                                                                              Page
                            I.  Introduction 	1
                           II.  Relationship Co  Agency Penalty Policy  	3
                          III.  Sunaary of the Policy  	3
                           IV.  Adainistrative Record  	5
                            V.  Determination of Gravity-Baaed Penalty  	5
                               A. Pocenelal for Han	6
                               B. Extent of Deviation from Requirement  	3
                               C. Penalty Assessment Matrix 	10
                           VI.  Multiple and Multi-Day Penalties 	11
                               A. Assessing Multiple Penalties	11
                               B. Afsealing Multi-Day Penalties 	.'	12
                          VII.  Effect of Econoalc Benefit of Noncoapliance 	12
                               A. Types of Economic Benefit	14
                               B. Calculation of Econoaic Benefit  	14
                         7III.  Adjustment Factors and Effect of Settlement 	16
                               A. Adjustment Factors  	16
                                 (1) Good faith efforts to comply/lack of good
                                       faith (Degree of Cooperation/noncooperacion).17
                                 (2) Degree of willfulness and/or negligence 	17
                                 (3) History of noncotapliance 	13
                                 (4) Ability to pay  	20
                                 (3) Other unique factors 	20
                               B. Effect of Settlement 	2'
                           IX.  Appendix: Penalty Computation Worksheet  	22
                            X.  Hypothetical Applications of the Penalty Policy	24
             RCRA Compliance/Enforcement              A-l           Guidance Manual 1984
    

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    (*•»
                                                                      RCSA Civil Penalty Policy
                                              XCRA CIVIl PENALTY POLICY
    
                          i.    lyraopucrioH
    
                               To  rispond  co  the  sroblea of iaproper aar.ageaent of hazardous
                          waste, Congress  aaended the Solid Waste Disposal Ac: with :.-.«
                          Resource Conservation and Xacovery Act (3CRA)  of 1976.   Although
                          the  Act  has  several objectives,  Congress'  overriding purpose ir.
                          enacting RCilA  was  :o establish the statutory frasevork  for a
                          rational system  that would ensure the  proper management of
                          hazardous  waste.
    
                               Section 3008(a) of 3C3A.  i2 C.S.C. ic?23Ca).  provides that
                          if any person  is  in violation  of a retirement of Subtitle C.
                          the  Administrator  of the Environmental Protection Agency (i?A)
                          aa7.  aaong ocher options,  issue J" ;riar racuirini ccapliance
                          isaediately  or within a soecifiec tiae period.  Section 30C8(c),
                          42 L'.s.C.  J6923(c),  provides that any  order issued aay  assess a
                          penalty,  taking  into acccunt:
    
                                    *    the  seriousness of the  violation, and
    
                                    *    any  good faith  efforts  to comply with the applicable
                                        requirements.
    
                          Section  300A(g)  further provides E?A with  the  authority :o assess
                          civil penalties  of  up to 525,000 per day of violation.
    
                               This  docuraent  sees forth  the Agency's policy for assessing
                          administrative penalties under 3CRA. 42 U.S.C. 56901  et seq.'/
                          The  purpose  of the  policy is to  assure that RCSA civil~penai?ies
                          are  assessed in  a  fair  and. consistent  manner;  that penalties are
                          aoprooriate  for  the gravity of the violation committed;  that
                          economic incentives for noncompliance  with RC3A are eliminated;
                          that persons are deterred from committing  RCSA violations;  and
                          that compliance  is  achieved.
    
                               The oolicy  provides internal guidelines to aid I?A
                          comDlianee/enfcrcement  personnel in assessing  appropriate
                          Densities.   It also provides a mechanism whereby coaoliance/
                          enforcement  personnel may.  within soecified boundaries,  exercise
                          discretion in  negotiating administrative consent agreements  and
                          orders,  and  otherwise modify the oroposed  penalty when  special
                          circumstances  warrant it.   The policy  will be  supplemented as
                          necessary.
                          */    Because  there  is  no  SCRA  judicial  civil  penalty  policy,
                               comoliance/enforceaent  personnel aay  rely  on  this
                          administrative  civil  senalty policy in  assessing  penalties  in
                          judicial  cases.
    

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    Appendix	RCRA Civil  Penalty Policy
                 This docuaent dot* net discus* whether assessment of an
            adainistrative civil penalty Is the comes enforcement
            response eo 4 particular violaeion.  Rather, this document
            focuses on determining what the proper civil penal:? should be
            one* a decision has been aade ehae a civil penalty is the proper
            enforcement remedy to pursue,  for guidance an when to assess
            adnlnistrative penalties, consult the following:
    
                 *    Guidance on Developing Covpliar.ee Orders Cr.de; Section
                      3008 of RCSA. July 7. 1981 ;'/
    
                 *    RC3A. Section 3COJ(t); Continued Operation of Hazardous
                      Waste Facilities by Owners  or Operators Who Have
                      railed :o Achieve Interia Status. July 31. 1931;
    
                 *    Guidance on Developing Compliance Orders "r.der Section
                      3008 of RCXA: Enforcement of Ground-Water Monitoring
                      Requirements at Interim Status Facilities. January 22.
                      1982;!'
    
                 '    Guidance or. Developing Compliance Orders Under Section
                      3008 of RC3A: Snforcemer.t of the Financial Responsibility
                      Requirements Under Subpart H of 40 CTS. Parts 254 and 253.
                    .  October 6.  1982 ;V
                                            e»
                 *    Guidance on Developing Compliance Orders Under Section
                      3008 of RCRA: Failure to Submit and Submittai of
                      Incomplete Part 8 Permit Applications,  September 9. 1983.
    
            The discussions of specific penalty assessments set out in the
            second and fifth guidances, above, are superseded by this docu-
            ment.  The portions of these guidances which do not address
            specific penalty assessments remain operative.
    
                 The RC2A Civil Penalty Policy is immediately applicable and
            should be used to calculate penalties for all RCRA administrative
            actions instituted after the date of the policy,  regardless of
            the date of violaeion.
            */   These three guidances classify RC9A violations as either
                 Claas I. II. or III. and state that Section 3008 compliance
            orders should generally be Issued to address Class I. Class I!.
            and continued or flagrant Class III violations.  The Agency is in
            the process of developing a RCRA enforcement response policy which
            could change the current scheme for classifying and responding :o
            violations.  Compliance/enforcement personnel should continue to
            rely on the existing guidance until the new enforcement response
            policy is issued.
    RCRA Compliance/EnforcementAr3Guidance Manual
    

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    AppendixRCBA Civil Penalty Policy
                                           - 3 -
    
    
                   The procedures ice out In this document are intended solely
              for the guidance of government personnel.  They art not intended
              aad cannot b« relied upon eo create rigbej, substantive or proce-
              dural. enforceable by any party in litigation with the United
              States.  Tht Agency reserves che right :o act ae variance with
              ehij policy and eo change ie ae any eiae without public notice.
    
              II.  8JELATIONSHIP T0_ ACOCY PStAL?? POLICY
    
                   The RC3A Civil Penalty Policy sees forth a system of penalty
              assessment cans is test with the established ;cals if the Agency's
              new civil penalty policy which was issued on February 16, 1984.
              These goals consist of:
    
                        '    Deterrence;
    
                        *    ?air and equitable treaeaene of :he regulated
                             coomuaity; and
    
                        *    Swift resolution of environmental problems.
    
              The RC3A penalty policy also adheres to the Agency policy's
              fraaevork for assessing civil penalties by:
    
                        *    Calculating a preliminary deterrence amount
                             consisting of a ^ravicy component;
                        *    Determining any economic benefit of noncompliance;
                             and
    
                        *    Applying adjustment faceors to account for
                             differences betveen cases.
    
              III. SUKMAHY OF THE PQLICT
    
                   The penalty calculation system consists of (1) determining a
              gravity-based penalty for a particular violation, (2) considering
              economic benefit of noncompliance where appropriaee.  and
              (•2) adjusting the penalty for special circumstances.   Two
              factors are considered tn determining the gravity-based penalty:
    
                        *    poeeneial for harm; and
    
                        *    extent of deviation from a statutory or regulatory
                             requirement.
    
                   These tvo faceors constitute the seriousness of  a violation
              under RCRA. and have been incorporated into the following penalty
              matrix from which the gravity-based penalty will be chosen:
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    Appendix
              &CSA Civil Penalty Policy
                                           - 4 -
    
    
    
                                           MATRIX
    
                            Extent of Deviation from Requirement
            Potential
              for
             Han
    •
    MAJOR
    MOOERAT*
    MINOR
    MAJOR
    S23.000
    cs
    20.000
    S10.999
    eo
    3.000
    S2.999
    CO
    1 .500
    MOOESATI
    S19.999
    eo
    15.000
    37,999
    CO
    5.000
    $1 .499
    CO
    500
    MINOR
    1
    :
    Sli.999
    CO
    tl .000
    S4.999
    CO
    3.000
    S-99
    CO
    100
                   Where a company has derived significant savings by lea
              failure co comply with RCRA requirements,  ehe amount of economic
              beneflc from noncompliance gained by che violacor will be
              caleulaced and added co che graviry-baaad penalcy.  A foraula
              for eonpueing economic benefit ia included.
    
                   Afcer determining che aperopriace penalcy baaed on gravicy
              and. where appropriate, economic benefit,  che penalcy aay be
              adjuaced upvarda or dovnvarda co reflecc particular circuoscancea
              surroundiog che violation.  The factors chat should be considered
              are:
    
                        *    Coed faith effort-  co comply/lack of good faich:
    
                        *    Degree of willfulness and/or negligence;
    
                        *    Hiscory of ncncomp.li.ance:
    
                        '    Ability to pay; or
    
                        *    Other unique factors.
    
              These factors (wich the exception of faccors which increase che
              penalcy such as hiscory of noneomplianee)  generally will be
    RCSA Compliance/Enforceaent
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    Guidance Manual  1984
    

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    Appendix		RCBA Civil Penalty Policy
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              considtrtd after proposing tht ptnaley in tht coaplainc. i.e.,
              during tht stteltatnt state.  However. tht Stgions havt tEe
              diserteion to apply eht adjuseatne factors when dtctni.ni.ig tht
              ialeial ptnalcy, if eht inforaacion supporting adjuscatne is
              available.
    
                   Tht policy also discusses the appropriaet assessment of
              multiple and mulci-day penalties.
    
                   A detailed discussion of the policy follows.  In addition.
              this docuaant include* a few hypothetical cases wntrt the seep-
              by-steo asstssstn: of penalties is illustrated,  the steps
              included art choosing tite correct penalty cell on the aatr-.x,
              calculating the econoaic benefit s: noncoopliance . where aopro-
              pr'.att. and adjusting the penalty assessment atfare ana after
              issuasct of the complaint.
    
              17.   AflMiyiSTSATITE RSCORD
                   In order to support eht penalty proposed in the cooplaint,
              coaplianct/tnforctatne personnel aost include in the case file an
              explanation of how the proposed penalty amount was calculated.
              The cast file Bust also includt a Justification of any adjust-
              atnes aadt after issuance of tht complaint.  In ongoing casts,
              tht assessment rationalt would "it extape froa tht aandaeory
              diselosurt rtquirements of tht Freedom of Information Act,
              5 U.S.C. S32, btcauat producing such records would interfere
              with enforceaent proctedings, 40 C7R $2.118(a) (7) .  Ntvtrthtltss ,
              tht Aitncy may tltec eo release penalty information after a com-
              plaint has bttn issued.  Once an tnforctatnt action has been
              coapltetd. tht Justification of tht ptnalty aastssatnt would
              no longtr bt exempt froa- disclosure.
    
                   A penalty coaputation worfeshtet eo bt includtd in tht case
              file is attachtd.  (Set: Appendix.)
    
              V.   DETERMINATION Of GRAVITY- 8ASE3 PENALTY
    
                   RCSA Stceion 3008 (c)  seaeta that eht seriousness of tht
              violation must bt taken iaco account in assessing penalties.  The
              gravity-based ptnalty ia determined according to the seriousness
              of eht violation.  Tht striousntss of a violation is based on two
              factors which art uatd to aaataa tht appropriaet gravity-based
              penalty-
    
                        *    poceneial for hars; and
    
                        *    extent of deviation froa a statutory or regulatory
                             rtquirtatne.
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                Aooendix           	RCRA Civil Penalty Policy
                                                       . 6 -
    
                               A.    Potential for Hara
    
                               The RCRA requireaents were proaulgated in order to prevent
                          ham eo  human health and the environaent.   Thus,  noncoapliance with
                          any RCRA requirement could risule In a situation  where there is a
                          poctncial for hara.  The potential far hara resulting from a viola-
                          cion may be determined by:
    
                                    *    ch« likelihood of exposure  eo hazardous want posed
                                         by noncoapliance. or
    
                                    *    the adverse effeee noncoaplianee has  on :he scacu-
                                         eory or regulacory purposes or procedures for
                                         implementing the RCJU prograa.
    
                               By  answering quescions Like ehe following, compliance/
                          enforcement personnel can determine the likelihood of exposure
                          in a particular situation:
    
                                    *    What is the quantity of waste?
    
                                    *    Is human life or health potentially  threatened
                                         by the violation?
    
                                    *    Are aniaals potentially threatened by the
                                         violation?
    
                                    *    Are any environmental aedia potentially threatened
                                         by the violation?
    
                               There may be violations where the likelihood of exposure
                          resulting from the violation is small,  difficult  to  quantify,  or
                          nonexistent,  but which nevertheless aay disrupt the  RCRA prograa
                          (e.j^.,  failure to coaply with financial requireaents).   This
                          disruption aay also present a potential for hara  to  human health
                          or the  cnvironacnt. due to the adverse effect noncoapliance  can
                          have on  the statutory or regulatory purposes or procedures for
                          iaolcaenting the RCRA prograa.
    
                               For each of the above considerations  -- likelihood  of exposure
                          and adverse effect on iapleaenting the RC3A prograa  --  the eaohasis
                          is placed on the potential hara posed by a violation rather  than on
                          whether  hara actually occurred.  The presence or  absence of  direct
                          hara in  a noncoapliance situation is something over  which the vio-
                          lator aay have no control.  Such violators should noc be rewarded
                          by assessing lower penalties when the violations  do  not  result in
                          actual  hara.
    
                               Compliance/enforcement personnel should evaluate whether the
                          potential for hara is aajor. aoderate.  or  ainor in a particular
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    Appendix	RCRA  Civil Penalty Policy
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              situation.  The degree of potential harm represented by each
              category is defined as:
    
                   *    MAJOR    (1)   violation 'poses a subscancial likelihood
                        of exposure co hazardous vasce; and/or
    
                                 (2)   the actions havt or aay have a substantial
                        adverse effect on the statutory or regulatory purposes
                        or procedures far implementing cht RCRA program.
    
                        MODERATE (!)   the violation ?os«s a significant likeii-
                        hood of exposure eo hazardous vas:e; and/or
    
                                 (2)   che actions havt or aay have a sigrificar.t
                        advtrse efface on chc statutory or regulatory purposes
                        or procedures far iapleaenting cht RC3A prograa.
    
                   *    MINOR    (1)   eht vtolacion poses a relatively Isw like-
                        TTKood of exposure to hazardous waste; and/or
    
                                 (2)   the actions have or aay have an adverse
                        effect on the statutory or regulatory purposts or
                        proctdurts for implementing the RCRA program.
    
                   The following exaoples illustrate the difference beeveen
              major, Moderate,  and sinor potential for harm.
    
              Example 1 - Major Potential for Ham
    
                   40 CFR 1265.143 requires that owners or operators of hazardous
              waste facilities establish financial assurance for closure of their
              facilities.  The purpose, of this requirement is to assure that
              funds will be available for proper closure of facilities,  '.'nder
              1283.143(a)(2), the wording of a trust agreement establishing
              financial assurance for closure aust be identical to the wording
              specified in 40 CFR $264.151(a)(1).  Failure to word the trust
              agreement as required may appear inconsequential.  However, ever, a
              slight alteration of the language could change the legal effect of
              the financial instrument so that it would no longer satisfy the
              intent of the regulation.  When the language of the agreement
              differs from che requirement such that funds would not be available
              to close the facility properly, the lack of identical wording
              would have a substantial adverse effect on the regulatory schene.
              This violation would be assigned to the aajor potential for hara
              category.
    
              Lxaaole 2 - Moderate Potential for Hara
    
                   Under <*Q CFR 1262.3^. a generator nay accumulate hazardous
              waste on-site for 90 days or less without having interim status
              or a perait provided that among other requirements, each container
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    Appendix                       	.	   RCRA Civil Penalty Policy
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              or tank of waste is labeled or marked clearly with the word*,
              "Hazardous Waste."  In a situation where a generator la searing
              compatible wasct, haa labeled half of tea containers, and has
              clearly identified its icorage area aa a hazardous wasct storage
              area, there is some indication that the unlabeled containers
              hold hazardous waste.  However, because there is a chance that
              the uslabeled containers could be removed frsa the itarage area.
              and that without labels the Agency would not icnow if the wisce
              had been stored for aore than 90 days, this situation poses a
              significant likelihood of exposure to hazardous waste (although
              the likelihood is not as great as it would be if neither t.k.e
              storage area nor any or the containers were aarked).  The
              acde_rat_e potential for hara category would be appropriate ir.
              cala"case.
    
              Example 3 - Minor Potential for Hara
    
                   Owners or operators of hazardous waste facilities aust. under
              40 CFR 1265.33. submit a copy of their contingency plans to all
              local police departments, fire departments, hospitals, and State
              and local emergency response teams that may be called upon to
              provide emergency services.  If a facility has a complete contin-
              gency plan, including a description of arrangements agreed to by
              local entities to coordinate emergency services ('$265.52), but
              failed to submit copies to all of the local entities, there is a
              potential for harm.  However, because a complete plan exists and
              arrangements with all of the local entities have been agreed to,
              the likelihood of exposure and adverse effect on the iaplementa-
              tion of RCRA would be relatively low.  The ainor potential for
              harm category would be appropriate in this situation.
    
                   B.   Extent of Deviation from Requirement
    
                   The "extent of deviation" from RCRA or its regulatory
              requirements relates to the degree to which the violation renders
              inoperative the requirement violated.  In any violative situation.
              a range of potential noncompliance with the subject requirement
              exists.  In other words, a violator may be substantially in com-
              pliance with the provisions of the requirement or it aay have
              totally disregarded the requirement (or a point in between).  As
              with potential for harm, extent of deviation aay be cither major.
              moderate, or minor.  In determining the extent of deviation. :he
              following definition! should be used:
    
                   *    MAJOR    the violator deviates from the requirements of
                        t"h~e regulation or statute to such an extent that there is
                        substantial noncompliance.
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                   *    MOOE&ATE  eh* violator significantly deviates froa
                        ehe Yeauireaenes of cht regulation or statute buc
                        soa* of the requirements art iapleaenced as intended.
    
                   *    MINOR     eh* violacor deviates somewhat from the
                        FiguTacory or ieacucory requireaents buc aost of the
                        r*quirea«nes art m«c.
    
                   A few exaaples will help deaonstrate how eh* evaluation
              procedure described above is used to seleec a category:
    
              Ixanole 1 - Closure Plan
    
                   40 CFS 5265.112 requires that owners or operators of
              treatment, storage, and disposal facilities have a written
              closure plan.  This plan must identify the steps necessary :o
              comoletely or partially close the facility at any point during
              Its incendcd operating life and to completely close the facility
              at the end of its ineended operating life.  Possible violations
              of the requirements of this regulation range from having no
              closure plan at all to having a plan which is somewhat inadequate
              (e.g.. failure to include a schedule for final closure, while
              complying with the other requirements).-  These violations might
              be assigned to eh* "aajor" and "minor" categories respectively.
              A violation between these extremes night involve failure to
              aodify a plan for increased deconcaaination activities as a
              result of a spill on-site.
    
            .  Example ,2.^, Failure to Maintain Adequate Security
    
                   40 CFR 5263.14 requires that owners or operators of
              treacaent. storage and disposal facilities take reasonable care
              to keep unauthorized persons from entering the active portion of
              a facility where injury could occur.  Generally, a physical bar-
              rier ausc be installed and any access routes conscientiously
              controlled.
    
                   The rang* of potential noncomoliance with the security
              requirements is quiee broad.  In a particular situation, c.ne
              violator aay prove to have totally failed to supoly any security
              systems.  Toeal noncoapliance with regulatory requirements such
              as this would resule in classification into the major category.
              In conerast. the violation may consist of a small oversight such
              aa failing to lock an access route on a single occasion.  Obvious I;/.
              the degree of noncoapliance in the latter situation is less Signi-
              ficant.  With all other factors being equal, the less significant
              noncoapliance should draw a smaller penalty assessment.  I.-. :?.e
              matrix system this is achieved by choosing the minor category.
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    Appendix
              RCHA Civil  Penalty Policy
                                              10 -
                   C.   Penalty Assessment Matrix
    
                   Etch of the abov* factors--potential for hara and extent
              of dtviacion froa a requirement — forms on* of the axes of the
              penalty assessment matrix.  Tht aaerix has ntn« cells, aach
              containing a penalty rangt.  The specific cell is chosen after
              determining which category (major, moderate, or sinor) Is appro-
              priaee for the potential for harm factor, and which category is
              appropriate for the extent of deviation factor.  The ccap'.ete
              matrix Is illustrated below:
    
                             Extent of Deviation froa Requirement
            Potential
              for
             Han
    
    MAJOR
    MODERATE
    MINOR
    MAJOR
    $22.000
    to
    20,000
    $10.999
    to
    8.000
    $2.999
    to
    1 .300
    MODERATE
    $19.999
    to
    IS. 000
    S7.999
    to
    5.000
    $1 .499
    to
    500
    MINOR
    $14.999
    to
    11 ,000
    $4.999
    to
    3.000
    $499
    to
    100
                   The lowest cell (ainor potential for hara/minor extent of
              deviation)  contains a penalty range from $100 to S499.   Provi-
              sion for this low range of penalties has been made because the
              assessment  of low penalties has proven to be an effective com-
              pliance tool.  The highest cell (major potential for harm/major
              extent of deviation) is limited by the maximum statutory penalty
              allowance of $23.000 per day of violation.
    
                   The selection of the exact penalty amount within each cell
              is left to the discretion of compliance/enforcement personnel in
              any given case.  Compliance/enforcement personnel should be
              careful to consider the seriousness of the violation only in
              selecting the penalty amount within the range.  The reasons the
              violation was comaitted. the intent of the violator, and other
              factors related to the violator are not considered at this point:
              they will be considered at the adjustment stage.
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    Appendix	RCRA Civil Penalty Policy
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              71.  Min.TIPl.£ AMD MULTI-PA? PESALTIZS
    
                   A.   Assessing Kultiole Penalties
    
                   In certain situations, EPA may find ehac a particular firs
              ha« violated several RCRA regulations.  A separata penalty snould
              be assessed for each violation chat results from an independent
              act (or failure to act) by the violator and is substantially
              distinguishable froa any other charge in the complaint for which
              a penalty is to be assessed.  A given charge is independent of.
              and substantially distinguishable froa. any other charge when  i:
              requires an eleaent of proof r.ot needed by the others.  In aany
              cases,  violations of different sections of the regulations consti-
              tute independent and substantially distinguishable violations.
              For example, failure :o iaplesent a groundwater aonicoring program,
              40 CTS. 5255.90, and failure to have a written closure plan. 40 C73
              5265.112.  are violations which result from different sets of
              circumstances and which pose separate risks.  In the case of a
              fira which has violated both of these sections of the regulations.
              a separate count should be charged for each violation.  For senalzy
              purposes,  each of the violitions should be assessed separately and'
              the amounts totalled.
    
                   It is also possible that different violations of the sane
              section of the regulations could constitute independent and sub-
              stantially distinguishable violations.  For example, in the
              case of a firm which has open containers of hazardous waste in
              its storage area, 40 CFH !265.173(a), anrl which also ruptured
              different hazardous waste containers while aoving chea on site,
              40 CFR J265.173(b). there are two independent acts.  The viola-
              tions resulc from tvo sets of circumstances (improper storage
              and iaproper handling) and pose distinct risks.  I.-. :his situa-
              tion, tvo counts with two separate penalties would be appropriate.
              For penalty purposes, each of the violations should be assessed
              separately and the amounts totalled.
    
                   Multiple penalties also should be assessed where one company
              has violated the same requirement in substantially different
              locations.  An example of this type of violation is failure co
              clean up discharged hazardous waste during transportation. 40 CF3
              1263.31.  A transporter who did not clean up waste discharged in
              two separate locations during the same trip should be charged with
              tvo counts.  In these situations,  the separate locations present
              separate and distinct risks to public health and the environment.
              Thus, separate penalty assessments are justified.
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                   In general, sultiple penalties are noc appropriate where the
              violations are noc independent or substantially distinguishable.
              Where a charge derives from or aerely restates another charge,  a
              separate penalty is not warranted.  If an ovner/operator of a
              storage facility failed to specify in his waste analysis plan the
              paraaeters for which each hazardous waste will be analyzed, -0  C?3
              5263.13(b)(1),  and failed to specify the frequency with which, the
              initial analysis of the waste will be repeated. 40 C7? !2S5.13(b)
              (4), he has violated the requirement that he develop an adequate
              waste analysis plan.  The violations result fron the saae factual
              event (failure to develop an adequate plan), and pose one risk
              (storing waste iaproperly due to inadequate analysis).  In this
              situation, both sections violated should be cited in the eooplaint.
              but one penalty, rather than two. should be assessed.  The fact
              that two separate sections were violated will be taken into account
              in choosing higher "potential for hara" and "extent of deviation"
              categories on the penalty aatrix.
    
                   B.   Assessing Mulct-Cav Violations
    
                   RC3A provides EPA with the authority to assess civil penalties
              of up to S25.000 per violation per day. with each day that non-
              coapliance continues to be assessed as a separate violation.
              Multi-day penalties should generally be calculated in the case  of
              continuing egregious violations.  However, per day assessment aay
              be appropriate in other cases.
    
                   In the case of continuing violations, the Agency has the
              authority to calculate penalties based on the number of days  of
              violation since the effective date of the requirement and up  to
              the dace of coning into.compliance.  The gravity-based penalty
              derived from the penalty aatrix should be multiplied by the number
              of days of violation.
    
              VII. EFTSCT OF ECONOMIC BENEFIT OF SONCOMPUANCS
    
                   The new Agency civil penalty policy aandates the consideration
              of the economic benefit of noncompliance to a violator when penal-
              ties are assessed.  In accordance with the goals of the Agency
              policy, the RCRA Civil Penalty Policy sets forth a system for
              calculating the economic benefit of noncompliance with 3C3A
              requirements.
    
                   An "economic benefit component" should be calculated and
              added to the gravity-based penalty when a violation results in
              significant economic benefit to the violator.  The following  are
              exaaples of regulatory areas which should undergo an econoai:
              benefit analysis:
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      •"         Appendix	 RCRA Civil Penalty Policy
                                                       - 13 -
    
    
    
                                    *    Groundwater monitoring
    
                                    *    financial' requirements
    
                                    *    Closure/post-cloaure
    
                                    *    Waste determination
    
                                    *   . Vasts analysis
    
                                    *    Clean-up of discharge
    
                                    *    Pare 8 submittals
    
                               For many XC3A requirements, ehe economic benefit of
                          noncompliance may be difficult to quantify or relatively insig-
                          nificant.  Examples of these types of violations  are failure
                          :s submit a reoort or failure to maintain records.   In general.
                          compliance/enforcement personnel need not calculate the benefit
                          component where ie appears that the amount of that  component is
                          likely to be less than $2,500.  This figure is sore appropriate
                          for the RC3A program than the $10,000 cut-off in  the Agency
                          policy because of the amount of economic benefit  associated with
                          many RCRA violations.
    
                               It is generally the Agency's policy not to settle cases
                          (i.e., the penalty amount) for an amount less than  the economic
                          benefit of noncompliance.  However,  the new Agency  civil penally
                          policy does set out three general areas where settling the total
                          penalty amount for less than the economic benefit nay be appro-
                          priate.  The RCRA policy has added a fourth exception for bases
                          where ability to pay is a factor.  The four exceptions are as
                          follows:
    
                                    *    the economic benefit component consists of an
                                         insignificant amount (i.e.. less than 32.500);
    
                                    *    there are compelling public concerns that would
                                         not be served by taking a case to  trial;
    
                                    *    it is highly unlikely that EPA will  be able to
                                         recover the economic benefit in litigation;
    
                                    *    the company has documented an inability to pay  ?h
                                         total proposed penalty.
    
                               If a case is settled for less than the economic benefit
                          component, a justification muse be included in :he  case file.
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    Appendix	'  	   RCSA Cirll Penalty  Policy
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                   A.   Types of Economic Benefie
    
                   Coapiiince/enforceatne personnel should exaaine cvo types of
              economic btntfle from noncompliance in determining ehe economic
              benezic component:
    
                        *    Benefit from delayed coses; and
    
                        *    Benefit frsa avoided coses.
    
                   Delayed coses are expendicures which have been deferred by
              ehe violator's failure to'csaply with ehe requirements.  the
              violaeor eventually vill have eo spend ehe aoney in order co
              achieve compliance',  delayed costs are the equivalent cf capital
              coses.   Examples of violations which resule in savings from
              delayed coses are:
    
                        *    Failure co inscall ground-water monitoring
                             equipment;
    
                        *    Failure eo submie a Pare B peraic application;
                             and
    
                        *    Failure eo develop a waste analysis plan.
    
                   Avoided coses are expenditures which are nullified by the
              violaeor's failure eo comply.  These coses will never be incurred.
              Avoided coses are ehe equivalent of operating and Maintenance
              coses.   Exaaples of violacions which resule in savings from avoided
              coses are:
    
                        '    Failure to perform annual and semi-annual
                             ground-water Monitoring sampling and analysis;
    
                        *    Failuri eo follow ehe approved closure plan in
                             removing wasee from a facility, where reremovai
                             is noe possible;  and
    
                        *    Failure eo perform wast* analysis before adding
                             wasee eo tanks, wasce piles, incineracors.  etc*.
    
                   B.   Calculation of Economic Benefit
    
                   Because the savings that are derived from delayed costs differ
              from chose derived from avoided coses, ehe economic benefit from
              delayed and avoided coses are calculated in a different manner.
              For avoided costs, the economic benefit equals the cost of coraol/i-g
              with the requirement, adjusced co reflecc income tax effects on the
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    Appendix   	RCBA Civil Penalty Policy
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              company.  For delayed coses, che economic benefi: does noc equal
              ehe cost of complying with :tia requirements,  since che violator
              will eventually have co spend ehe money co achieve compliance.
              The economic benefie for delayed coses consises of che amounc
              of Interest on che ur.spene aoney chac reasonably could have
              been earned by ehe violacor during noncompliance.  If noncompli-
              ance has coneinued far acre Chan a year,  compliance/enforceaenc
              personnel should calculate ehe economic benefie of boch che
              delayed and avoided coses far each year.
    
                   The following formula is provided co help calculate che
              economic benefi: component:
                                    />
              Economic
              Benefit  • Avoided Coses (1-T)  * (Delayed Coses x Interest Race)
    
                   In ehe above formula, T represents che firs'a marginal cax
              race.  In ehe absence of specific information regarding che
              violator's cax status, compliance/enforcement personnel should
              assume that che company's marginal cax race is *65,  che Federal
              corporate cax rate for firms whose before-tax profits are
              greacer than $100,000.  Thus, compliance/enforcement personnel
              should assume chac T  •  .46.
    
                   Compliance/enforcement personnel should  calculate interest by
              using ehe interest race charged by che Internal Revenue Service
              (IRS) for delinqucnc accounts.   The IRS inceresc races for 1980
              through 1984 are as follows:
    
                        2/1/80  -    1/31/82    I2S
                        2/1/82  •   12/31/82    20X
                        1/1/83  -    6/30/83    16X
                        7/1/83  -    6/30/84    lit
    
              Ineeresc raees for years other than ehose lisced above are
              available from your local IRS office.
    
                   The economic benefie formula provides a  reasonable estimate
              of ehe economic benefie of noncompliance.  If a respondent
              believes chac ehe economic benefit ie derived from noncompliance
              differs from ehe estimated amounc, ic should  present infsrmaeion
              documenting ies actual savings eo compliance/ enforcement person-
              nel ac ehe seeclemene stage.
    
                   See Seccion X of this document for hypothetical applications
              of che economic benefie formula.  The Agency  plans co develop
              additional guidance on calculating ehe economic benefit of
              noncomoliance, including identifying sources  of cose information
     RCRA Compliance/Enforcement               A-16           Guidance Manual  1984
    

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    Appendix	RCEA Civil  Penalty Policy
                                            - 16 -
    
    
              for various regulatory areas, and providing an Agency methodology
              for eoapueing econcaic benefit.  Tor this reason, the economic
              benefit foraula sac ouc in this document is for interim us*
              on 17.
    
              VIII.  ADJOSTMarr FACTORS AND £?~C? OF SgmatSIT
    
                   A.   Adjustment Factors
    
                   As mentioned in Section V of chis docuaenc.  che seriousness
              of cht violation is considered in deceraining che gravity-based
              penalty.  The reasons cht violation was committed, che incenc 31
              cht violator, and other factors rtlattd to cht violator art not
              considered in choosing cht appropriatt penalty from cht matrix.
              However, any syscea for calculating penalties nusc have enough
              fltzibility to make adjustatnts chat rtfltct Itgitiaatt dif-
              ftrtncts btcvttn siailar violations.  RCiU J3008(c) states thac
              in assessing penal-.ies. EPA aust cake into account any good
              faich efforts to comply with the applicable rtquirtatncs.  Tht
              new Agency civil penalty policy sets out several  other adjust-
              ment factors to consider.  These include the degree of willful-
              ness and/or negligence, history of noncompliance. ability co
              pay, and other unique factors.
    
                   The adjuscaent faccors can increase, decrease or have no
              effect on the penalty amount co be paid by che violator.  Noce,
              however, thac no upward adjustment can resulc in  a penalcy greaccr
              Chan the statutory maximum of S25.000 per day of  violation.  Adjusc-
              aent of a penalty-may cake place before issuing che proposed penal:?
              in the complaint, or after asstssatnc of cht proposed penalcy (as
              part of Cht settlement process).  Most factors,  in practice, will
              be considered at the sectleaent stage with che burden of proof far
              aicigation on che respondent.  However, penalties may be adjusted
              before determining the proposed assessment if the necessary
              information is available.  Compliance/enforcement personnel should
              use whatever information on the violator (and violacion) is avail-
              able at the tiae of initial assessment.  Issuance of a complainc
              should not be delayed in order co collect addicional adjuscaenc
              inforaacion.  The history of noncorapliance 'factor should be used
              only co increase a penalty; the ability to pay factor should
              be used only to decrease a penalcy.  Justification for adjustaencs
              aust be included in the case file.
    
                   In general, these adjuscaent faceors will apply only to che
              gravity-based penalty derived froa the matrix, and not co che
              economic benefit componenc if calculated.  (See Section VII of ch.Ls
              docuaenc for exceptions.)
    
                   Application of the adjuscaenc faccors is cumulative, i.e..
              aore than one factor aay apply in a case.  For example, if the
              base penalcy derived froa Che sacrix is $9.500.  and upward
    RCRA Compliance/EnforcementA-17Guidance Manual 198A
    

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    Appendix	RCRA Civil Penalty Policy
                                            - 17 -
    
    
              adjustaents of 10? will b« aade for both history of noncompliance
              and degree of willfulness and/or negligence,  chit cocal adjusted
              penalcy would be S11.400 ($9.500 «• 205).
    
                   The following discussion of ehe factors  co consider is
              consistent with the r.ew Agency civil penalty  policy.  For the
              purposes of simplification,  the percentage ranges for the adjust-
              aen't factors in the Agency policy have been altered slightly -for
              use in the RCRA Civil Penalty Policy.
    
                   At this stage of the RCRA program it is  difficult to
              deteraine what types of non-monetary alternatives or alternative
              payments would foster the goals of the program.  AS eoopliar.ee,
              enforceaen: personnel gain sore experience in enforcing XC3A,
              ust of these alternatives say prove to be advantageous to the
              public interese.  I'neil such tiae, these alternatives, as set
              forth in the new Agency civil penalty policy, are noc an option
              under the ROU Civil Penalty Policy.
    
                        (1)  Good faith efforts co comply/lack of good faith
                             (Degree or coeeeration/noncooperation)
    
                   Under !300P(a) of RCRA, good faith efforts to comply with
              the requirements oust be considered in assessing a penalty.
              Good faith can be manifested by the violator  promptly reporting
              its noncompliance.  Assuming such self-reporting is not required
              by law. this behavior can result in mitigation of the penalty.
              Prompt correction of environmental problems also can constitute
              good fai'th.  Lack of good faith, on the other hand, can result
              in an increased penalty.  Compliance/enforcement personnel have
              discretion to make adjustments up or down by  as auch as 255 of
              the gravity-based penalty.  Adjustments aay be aade in the 265-iOS
              range of the gravity-based penalty, but only  in unusual circus-
              stances.  No downward adjustment should be aade if the good
              faith efforts to comply primarily consist of  coming into
              compliance.
    
                        (2)  Degree of willfulness and/or negligence
    
                   Section 3008(d) of RCRA provides  for criainal penalties
              for "knowing" violations.  However, there may be instances of
              culpability which do not aeet the criteria for criainal action.
              In cases where administrative civil penalties are sought for
              actions of this type, the penalty aay  be adjusted upward for
              willfulness and/or negligence.  Conversely, although RCRA is a
              strict liability statute, there aay be instances where penalty
              mitigation aay be justified based on the lack of willfulness
              and/or negligence.
    RCRA Compliance/Enforcement               A-18           Guidance Manual 1984
    

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    Appendix	RCEA ClTil  Penalty Policy
                                            • la-
    
    
                   in assessing eh* degree of willfulness and/or negligence.
              che following factors should be considered, as well as an? others
              deeaed apropriaee:
    
                        *    how such control the violator had over the events
                             constituting the violation;
    
                        *    the forseeabilicy of che events constituting the
                             violation;
    
                        *    whether the violator took reasonable precautions
                             against the events constituting the violaticr.;
    
                        *    whether che vtblaeor knew or should Have kr.own  of
                             the hazards associated with che conduct;
    
                        *    whether the violator knew of ehe legal rec.uireaent
                             which was violated.
    
                   Ic should be noted that ehis lase factor, lack of knowledge
              of ehe legal requireaent. should never be used as a basis to
              reduce che penalty.  To do so would encourage ignorance of che
              law.   Rather, knowledge of che law should serve only to enhance
              che penalty.
    
                   The aaounc of control which ehe violator had over how quick!?
              che violation was reaedied also is relevant in certain circum-
              stances.  Specifically, if correction of the environaental problea
              was delayed by factors which the violator can clearly show were
              not reasonably foreseeable and out of his control,  che penalty
              aay be reduced.
    
                   Subject co ehe above guidance, coapilance/enforceaent
              personnel have discretion in all cases co aake adjuscaencs up  or
              down  by as ouch as 23Z of ehe gravity-based penalty.   Adjuscaencs
              in che 26-401 range aay be aade. buc only in unusual circumstances.
    
                        (3)  History of noneoaplianee (upward adjustment onl?)
    
                   Where a party previously has violated RCRA or State hazardous
              waste law at ehe saae or a differene siee. this is  usually clear
              evidence that che party was not deterred by che previous enforce-
              aenc  response.  Unless che previous violacion was caused by
              faccors encirely ouc of ehe concrol of ehe violator,  this is an
              indication that the penalty should be adjusted upwards.
    
                   Sone of the factors the coapliance/enforceaent personnel
              should consider are the following:
    RCRA Compliaacr/EnforcenentA-19Guidance Manual 1984
    

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    Appendix	_	RCSA  Civil Penalty  Policy
                                            • 19 -
    
    
                        *    how siailar eh* previous violation was;
    
                        *    how recent the previous violation was;
    
                        *    the number of previous violations:
    
                        '    violator's response to previous vioiation(s)
                             in regard to correction of problem.
    
                   A violation generally should be considered "siailar"
              Agency's or State's previous enforcement response should have
              alerted the party to a particular type of compliance problen.  A
              prior violation of the saoe or a different 3C3A or State requireaer.t
              would constitute a similar violation.
    
                   For purposes of the section, a "prior violation" includes
              any act or omission for which a foraal enforcement response has
              occurred (e.g.. E?A or State notice of violation, warning letter,
              complaint,  consent agreement, final order, or consent decree).
              It also includes any act or omission for which the violator has
              previously been given written notification, however inforaal,
              that the Agency believes a violation exists.
    
                   In the case of large corporations with aany divisions or
              wholly-owned subsidiaries,  it is sometimes difficult to deter-
              mine whether a previous instance of noncoopliance should trigger
              the adjustments described in this section.  New ownership often
              raises siailar problems.  In making this determination, compliance/
              enforcement personnel should ascertain who in the organization had
              control and oversight responsibility for compliance with 3C3U or
             .other environmental laws.  In those cases the violation will be
              considered part of the compliance history of that regulated party.
    
                   In general, compliance/enforcement personnel should begin
              with the assumption that if the same corporation was involved, the
              adjustaents for history of noncompliance should apply.  In addi-
              tion, compliance/enforcement personnel should be wary of a party
              changing operators or shifting responsibility for compliance to
              different persons or entities as a way of avoiding increased
              penalties.   The Agency may find a consistent pattern of noncom-
              pliance by many divisions or .subsidiaries of a corporation even
              though the facilities are at different geographic locations.
              This often reflects, at best, a corporate-wide indifference to
              environmental protection.  Consequently, the adjustment for
              history of noncompliance probably should apoly unless the violator
              can demonstrate that the other violating corporate facilities are
              independent.
    
                   Subject to the above guidance, compliance/enforcement
              personnel have discretion to make upward adjustaents by as aucn
              as 25* of the gravity-based penalty.  Adjustaents for this factor
              in the 26-«02 range aay be aade. but only in unusual circumstances.
     RCRA Compliance/Enforcement               A-20           Guidance Manual  1984
    

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    Appendix    	.	RCEA Civil Penalty Policy
                                            - 20 -
    
    
                        (4)   Abilltr co O«T (downward adjustment on IT)
    
                   The Agency generally will noc request penalties that arc
              clearly beyond che means of the violacor.  therefore £?A should
              consider che abilicy of a violator eo pay a penalty.  A: che
              same else.  1:  is important ehac che regulaced csnnounicy noc see
              ehe violation  of environmental requirements as a way of aiding a
              financially troubled business.  EPA reserves the option, in
              appropriate circuascances,  to seek penalties that sight out a
              company out of business.  It is unlikely, far example,  that £?A
              would reduce a penalty wher* a facility refuses to correct a
              serious violation.  The same could be said for a violator with a
              lor.g history of previous violations.  That long history would
              deaonserate that less severe measures are ineffective.
    
                   The burden to demonstrate inability to pay rests on the
              respondent, as it does with any mitigating circumstances.  Thus.
              a company's inabiliey eo pay usually will be considered at the
              sectlement  seage, and then only if ehe issue is raised  by the
              respondent.  If the respondent fails to provide sufficient infor-
              mation, then compliance/enforcement personnel should disregard
              this factor in adjusting ehe penalty.  The National Enforcement
              Investigations Center (ME1C) has developed the capability to
              assist the  Regions in determining a firm's ability co pay.
    
                   When it Is determined that a violator cannot afford the
              penalty prescribed by this policy, or that payment of all or a
              portion of  the penalty will preclude the violator from  achieving
              compliance  or  from carrying out remedial measures which che
              Agency deems to be more- important than the deterrence effect of
              the penalty (e.g.. payment of penalty would preclude proper
              closure/post-closure), the following options may be considered:
    
                        *    Consider a delayed payment schedule.  Such a
                             schedule might even be contingent upon an increase
                             in sales or some other indicator of improved
                             business.
    
                        *    Consider an installment payment plan with interest.
    
                        *    Consider straight penaley reductions as  a last
                             recourse.
    
                   The aaeune of any downward adjustment of che penalty is
              dependent on the individual financial facts of che case.
    
                        (3)   Other unique factors
    
                   This policy allow* an adjustment for unantieisated factors
              which may arise on a case-by-case basis.  Compliance/ enforcement
              personnel have discretion co sake adjustaencs by as auch as 251 of
    RCRA  Compliance  Enforcement               A-21            Guidance Manual 1984
    

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    Append!*	i	RCRA Civil Penalty Policy
                                            - 21 -
    
    
              the gravity-based penalty for «uch reasons.  Adjustments for
              chest factors in the 26-40X rang* aay b« aade. but only in unusual
              circuastances.
    
                   3.   Effect of Settlement
    
                   The Consolidated Rules of Practice for ch« assessment of
              civil penalties incorporates Che Agency policy of encouraging
              settlement of a proceeding at any time as long as the settlement
              is consistent with the provisions and objectives of RC3A and its
              regulations, 40 CT3. S22.18(a).  If the respondent believes that
              i: i.i not liable or that the circuastances'of its case justify
              mitigation of the penalty proposed in the coaplaint.  the Rules
              of Practice allow it to request a settlement conference.
    
                   In aany cases, the face of a violation will be less of in
              issue than the aaount of the penalty assessed.  The burden always
              is on the violator to justify any aitigation of the assessed
              penalty.  The aitigation, if any, of the penalty assessed in the
              coaplaint should follow the guidelines in the Adjustment Factors
              section of this document.  The consent agreement aust include a
              general statement of the reasons for mitigating the proposed
              penalty.  Specific percentage reductions for individual factors
              need not be included.
    

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    Appendix
             ECRA Civil Penalty Policy
                                            - 22 -
    
                                      U.  APPENDIX
    
                              PENALTY  COMPUTATION WORKSHEET
                Company  Maa«:
                Regulation  Violated
                Asessaents  for  each violation should be determined
                on  separate  worksheets and totalled.
    
                     (If aort space ia needed, atsach separate sheet.)
    
                       Pare  I   -  Seriousness of Violation Penalty
    
                1.  Potential for Hara:             __________^^_^^
    
                2.  Exctnc of Deviation:            _______^____^^_
    
                3.  Mmcrix C«ll  Range:              	
    
                      Ptnalcy Aaount Chosen:       .^__^^_^^^_^_^___
                     Justification for Penalty
                        Aaount  Chosen:
    
                   Ptr-D*y Assessment:
    
                          Pare  II - Penalty Adjuseaenes
                                      Percentage Change*   Dollar Aaount
                1.  Good  faith  efforts
                     eo  comply/lack of
                     good  faith:
    
                2.  Degree)  of willfulness
                     and/or negligence:
    
                3.  History of
                     noncompliance:
    
                4.  Other unique  factors:
    
                S.  Justification for
                     Adjustaencs:
                •  Percentage  adjustaencs are applied to the dollar
                  aaount  calculated on  line 4. Part I.	
    RCRA Compliance/Enforcement
    A-23 -
    Gui
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    Appendix
    RCBA Civil Penalty Policy
                                           - 23  -
    
                           PENALTY  COMPUTATION WORKSH2ZT (cone.)
                6.  Adjusted  Per-day
                     Penalty (Lin* 4.
                     Part  I  * Lines
                     1-4.  Part II):
    
                7.  Number  of Days of
                     Violation:
    
                8.  Mulci-day Penalty
                    (Si=i3ar  of days x
                    Line 6.  Part  II):
    
                9.  Economic  Benefit of
                     Noncompliance:
    
                     Justification:
               10.  Total  (Lines  8*9. Part  II)
    
               11.  Ability  to  Pay Adjustment:
    
                     Justification  for
                     Adjustaent;
               12.  Total  Penalty Amount
                     (oust not  exceed S2S.OOO
                     per  day  of violation):
    RCRA Compliance/Enforcement
    

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    Appendix	I	RCSA Civil Penalty Policy
                                        - 24 -
    
    
              X.  HYPOTHETICAL APPLICATIONS OF THE  PENALTY  POLIC7
    
          (1)(A) Viol*cion:  By notification dated  August 15.  L980, Company
                 A  informed SPA ch«c  it conduces activities  at  its  facility
                 involving hazardous  vast*,  in its notification. Ccnpany A
                 indicated that ie only generated hazardous  waste.  A  1933
                 inspection revealed  that Company A vas also staring
                 hazardous waste, and had been since  1979.   Company A  had
                 not filed a Part A Persic Application and was  thus operating
                 without a aerait or  interia status,  in violation of $3005
                 of RCRA.  In addition. Company A was is violation of  53010
                 of RCU by failing to notify 5?A that ic was  storing
                 hazardous waste.  Failure to notify  and operating without a
                 penit or  interia status constitute independent and substan-
                 tially distinguishable violations.   Each violation should
                 be assessed separately and the amounts totalled.  The
                 inspectors indicated that Company  A's storage  aria was
                 secure and that, in  general, the facility was  well aanaged.
                 However,  there were  a number of violations  of  the  interia
                 status standards.  The complaint issued to  Company A
                 assessed penalties for the Part 265  violations'as well as
                 the statutory violations.  This example will  discuss  the
                 J3005 and $3010 violations only.
    
             (B) Seriousness:  (i) Failure to Notify: Potential for Hara.
                 Moderate - EPA was prevented from  knowing  that hazardous
                 waste was being stored at the facility.  However, because
                 Company A notified EPA that it was a generator, EPA did
                 know that hazardous  waste was handled at the  facility.
                 The violation aay have a'significant adverse effect on the
                 statutory purposes or procedures for implementing the RCRA
                 program.  Extent of  Deviation.  Moderate -  although
                 Company A did not notify EPA that  it stored hazardous waste.
                 it did notify the Agency that is was a generator.  Company A
                 significantly deviated from the requirement, but part of
                 the requirement was  implemented as intended,   (it) Operating
                 without a permit.  Potential for Harm.  Moderate - although
                 Company A was operating without a  permit or interim status.
                 its facility generally was well aanaged.  However, there
                 were a number of Part 265 violations.  This situation aay
                 pose a significant likelihood of exposure which may have a
                 significant adverse  effect on the  statutory purposes  for
                 implementing the RCRA program.  Extent of Deviation.
                 Major - substantial  noncompliance  with the  requirement
                 because Company A did not notify EPA that  it  stored
                 hazardous waste, and did not submit  a Part  A.
     T?CRA
    

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    Appendix   	;	  RCRA Civil Penalty Policy
                                         - 25 -
             (C) Gravity-based Penalty: (i) Failurt Co notify.  Moderate
                 potential for harn and aoderace exctnc of deviation lead
                 one co ehe cell wtch ehe range of $5,000 co $7,999.  The
                 aid.poi.nc is 56,500.  (ii) Operating without a perait.
                 Moderate pocenciai for Kara and aajor extent of deviation
                 lead one to the cell with she range of S3. COO to S 10, 999.
                 The midpoint is $9,500.  (iii) Total penalty: 36,500 -
                 $9,500 - $16,000.
             (D) Settlement adjustment:  Coapany A raised and deepen red
                 that it had cash flow probleas.  It did not convince £PA
                 that ehe penalty should be aicigated.  An installment plan
                 vas accepted by both parties as a aeans of payment.  Per.aity
                 reaained at $16.000.
    
          (2) (A) Violation:  Coapany 3 failed to prevent unknowing entry of
                 persons onco the active portion of its surface iapoundaent
                 facility.  The fence surrounding the area had several holes.
                 40 CFR $265.14.
    
             (3) Seriousness:  Potential for Kara.  Major - some children
                 already have entered the area: potential for hara due :o
                 exposure co waste aay be substantial because of the lack of
                 adequate security around the site.  Extent of Deviation'.
                 Moderate - chtre is a fence, but it has holes.  Significant
                 degree of deviation, but part of the requirement was imple-
                 aented.
    
             (C) Gravicy-based Penalty:  Major potential for hara and
                 moderate extenc of deviation yield the penalty range of
                 $15.000 to $19.999.  The Midpoint is $17,500.
    
             (0) Pre-complaint Adjustment:  During ehe inspection of the
                 facility, EPA discovered that the operator of Coapany 3
                 had been made aware of the above occurrence aore than
                 three aonchs earlier, but had failed eo repair the fence
                 or increase security in chat area.  The penalty is
                 adjusted upwards 251 for willfulness and/or negligence.
                 $17,500 * $4.375 • $21,875. [Penalcy calculation using
                 the Penalty Coaputation Worksheet follows this hypothetical.]
    
             (£} Seetleaent Adjustment:  Coapany B gave evidence at
                 setcleaent of labor probleas with security officers and
                 reordering and delivery delays for a new fence.  Coapany
                 B was very cooperative and stated that a new fence
                 had been installed after issuance of the comolai.ic and that
    

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    Appendix	RCRA Civil Penalty Policy
                                    - 26 -
              security would be providtd for by another coapany in the
              near future.  Even chough the company w«< very cooperative,
              iti aceions wcri only ehoaa rtquirtd undtr.ch* regulacions.
              No justification for aitigation for good faith tfforts  :o
              comply txiscs.  No change in 521,375 penalty.
                                                                                i oo/
    

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    Appendix
                 RCBA Civil Penalty Policy
                                            27  -
                              PENALTY COMPUTATION WORKSHEET
               C««p*ny 5aae:
               Regulation Violated
               Ajesstnents  for each violation should be determined
               on separate worksheets and  totalled.
                     (If acre apace ia needed, aeeach separace sheet.)
                      Part I  -  Seriousness of Vtolaeion ?ena1:T
                1. Potential for Hara.-
                2. Extent of Deviation:
                3. Matrix Cell Range:
                     Penalty Aaount Chosen:
                     Justification for Penalty
                       Aaount Chosen .-
                4. Per-Oajr Aaaessaent:
            '^TCOD - •*
          U ftfi
                          Part  II - Penalty Adjuscaents
                                      Percentage Change*
                  Dollar  Aaount
    AJ/A
    W/A
                1. Good faith efforts "
                     to coopI?/Lack of
                     good faith:
                2. Degree of willfulness
                     and/or negligence:
                3. History of
                     noncompliance:
                4. Other unique factors:
                S. Justification  for
                     Adjusraents:
                  Percentage adjustaents are apolied to the dollar
                 _amount  calculated on  line a. Par; I.	
                      AJ/A
    RC8A  Coorpiiance/Enforcemfiac
       A-28
    Guidance  Manual  I 984
    

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    Appendix-                               	RCRA Civil Penalty Policy
                                       - 29 -
    
    
          (3)(A) Violation:  A  1934  inspection of Company C's  land disposal
                 facility revealed that Company C had failed to implement a
                 ground-water aonitoring system by November 1981 as required
                 under 40 CF3 $255.90.  The facility had taken no steps :o
                 iaplement a system:   It failed to install aonitoring'wells
                 (1265.91). and to obtain and analyze samples  (5255.92); no
                 outline of a ground-water quality assessment  program had
                 been prepared  ($255.93): and no records were '
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    Appendix
              RCBA Civil  Penalty PolicT
                                          - 28 -
                          PENALTY COMPUTATION WORKSHEET (cone.)
               6. Adjusted Ptr-day
                    Penalty (Lin* 4.
                    Pare I * Lints
                    1-4. Part II):
    
               7. Nuaber of Days of
                    Vlolacion:
    
               8. Mulct-day Pinaley
                    (Number of days x
                    Line 6. Pare II):
    
               9. Ceonoaie Benefit of
                    Moncoaplianer .-
    
                    Justification:
               10. Tocal (Lines 8*9. Pare II)
    
               11. Abiliey eo Pay Adjuscacnc:
    
                    JuacifIcaeion for
                    Adjustment:
               12. Tocal Ptnaley Aaoune
                    (oust noe txct«d S23.000
                    p«r day of violation).-
                    X/A
                    N/A
    RCRA Compliance/Enforcement
    A-29
    Guidance Manual 1984
    

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    Appendix  	RCTA Civil Penalty Policy
                                          -  30  -
    
    
                    Co«e  of  analyaia  (COA)                          $11,360
    
                    Coae  of  report  (COR),  reporc  for                 53,200
                    determining  ayacem  needa. noe rtporc
                    required under  $265.94
    
                    TOTAL                                          S27.200
    
                                   Second Year Coata
    
                    Coat  of  saaplir.g  and  cost of  analysia            SI .900
                    (COS,  COA),  aasuaing  no  contamination
                    found
    
                    Assumptions:  geology  ia unconaolidaced sacerial;  hcllcw-
                    acan  auger drilling;  PVC conaeruecion macarial;  gr.ound-
                    wac«r aaapling  by hand bailing; wtlla dug  50  ft. d««p;
                    •aeiaaetd eoaca rtoaincd conaeaac ov«r cia*.
    
                    COP,  COV, COR,  and  firac y«ar COS and 
    -------
    Appendix            	'	  RCRA Civil Penalty Policy
                                        - 31 -
                  1982:  Conpaay C scill had not implemented  its ground-
                         water monitoring system.  In addition, ic had not
                         obcaintd and analyzed samples ac  leajc annually or
                         sent -annually, depending on cht indicator parameter.
                                 costs • 327,200
                         Avoided costs - SI .900
                         IRS inc«resc race • 20Z
                         Assume 7 • .46
    
                         Economic Benefit • SI .900 (1-.46) «• (S27.:00 x 205)
                                          - 36.466
    
                  1933:  Coop any C scill had noe implemented its ground-
                         water aonicoring system.  In addicion, i: had not
                         obtained and analyzed samples ae lease ar.r.ually or
                         semi-annually. depending on che  indicator parameter.
    
                         Delayed cost* • S27.200
                         Avoided costs • SI .900
                         IRS interest rate • 13.5S (the average of 162 and  Mt
                         Aasuae T • .46
    
                         Economic Benefit - SI .900 (1-.46) + ($27.200 x 13.5!)
                                          - $4.698
    
                  Total Economic Benefit - $3.264 * $6,466 * $4.648
                                         - 514.428
    
                  Penalty proposed in complaint • gravity-based penalty -
                                                  economic benefit component
                                                - S22.500 * 514,423
                                                • 536.928
    
                  Because noncompliance continued over a  three year period,
                  the proposed penalty does not exceed $25.000 per day of
                  violation.
    
              (£} Settlement Adjustment.  Company C did not request a
                  settlement conference but did comply with the Compliance
                  Order and paid the proposed penalty.
    
           (4) (A) Violation:  Pursuant to «3007(a) of RCRA. E?A sent a
                  letter to Company D requesting that it  furnish informa-
                  tion relating to hazardous waste .  Specifically, five
                  separate records were requested.  The letter required a
                  resoonse to £?A within 14 calendar days of Company O's
                  receipt of the letter.  One aonth after Company 3
                  received EPA's information request, it  submitted three
                  of the five documents requested.  EPA sent a second
                  letter requesting the two remaining docuaents.  Company
                  0 failed to. respond to the request.
    

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    Appendix	RCRA Civil Penalty Policy
                                       -  32  -
    
    
              (B)  Seriousness:   Potential for  Kara.   Moderate  -  Based  on
                  the  naeure  of  IKe  intoraaeion  requeseed,  EPA decerained
                  eh«e Coapany D'a failure to  aubnie  iafonaelon relacing
                  eo hazardous wasea eo EPA  aa raquaaeed aay havt a  signi-
                  ficant  adverse tffacc on ehe purpoaes and procedures
                  for  iapleaencin* ch«  acSA  prograa.   Extenc or  Deviation.
                  Moderate  •  Coapany 0  did suaaie  soae or  the  indorsation
                  requeseed.  Ic significanely daviaead froa eha reouire-
                  ••ae. bue pare of  cha requireaenc waa iapleaenced  aa
                  ineandad.
    
              (C)  Gravity-based  Penaley:   Modaraca -  pocaneial for hare
                  and  aodaraca extent of  daviacion fiald cha panalrv ranga
                  of S3.000 eo $7.999.  Tha  aidpoine  ia $6.300.
    
              (D)  Pra«Aaaaaaaane Adjuacaanea •  On evo pravioua  occasions
                  ac diffaranc facilieiaa. Caapany 0  failad eo raspond
                  coaplaeal?  eo  $3007 raquaaei for diffaranc inforaacion.
                  In eboaa  casts.  EPA iaauad adainiaeraeiv* eoapiaines wich
                  propoaad  panaleiaa of $6,500 and $8.123  raapaceivaly.
                  Boeh casas  raaulead in  Conaane Agraaaanes and  Final
                  Ordars  which wara  ancarad  inco bafora EPA raquasead  che
                  inforaacion in eha praaane caaa.  Tha panalcy  is adjusted
                  upvarda SOX for history of noncoaplianca. $6,300  *
                  $3.230  •  $9,730.  Coaplianca/anforcaaanc  personnel
                  daearainad  ehae ehe penaleiaa  aaaaaaed in cha  previous
                  caaaa had failed eo decar  Campany 0 froa  repeaced
                  noncoapliance  wich RCRA.   For  chis  reason, a aulci-day
                  panalcy of  $9.730  per day  froa ehe  dace  che  inforaacion
                  waa  due eo  EPA waa aaaaaaed.
    
              (E)  Seeeleaenc  Adjustment:   Company 0 failad  co  convince £?A
                  ehae any  pcnaley aieigacion  waa justified.   Seecleoenc
                  negociaciona broke dovn and  ehe case wane eo an
                  adainistrative hearing.
    
           (3)(A)  Violation:  Conpany E's Pare B Perait Application  was called
                  in by EPA in 1983. Coapany  E. a Land disposal facility.
                  failed  eo subaic lea  Pare  B  by the  date  specified  when the
                  application waa called-in.  EPA  issued a  Nocice of Deficiency
                  requiring subaission  of a  coaplese  Pare  B within 30  days.
                  EPA  also  issued a  warning  letter stating  that  failure to
                  subaic  a  conplece  Pare  B applicacion ia  a violation  of
                  40 CFR  S270.10(a)  which aay  result  in ehe aasessaenc of
                  civil penalties and cha inieiacion  of procedures to  terai-
                  nate che  facility's interia  status.  Coapany £ sent  £?& a
                  one-page  response  several  weeks after the date stipulaceo
                  in the  Notice  of Deficiency.  The response was seriously
                  incoaplete. Thus. Coapany E failed co subait  a complete
                  Part B  in violation of  40  C7S  S270.!0(a).
    RCRA Compliance/:   orcemencA-33Guidance Manual 1984
    

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    Appendix	RCRA Civil Penalty  Policy
                                         - 33 -
    
    
             (B) Seriousness:  Potential far Hara.  Moderate - inspections of
                 Company E's facility hay« revealed a generally well-managed
                 operation.  However, failure Co carry ouc the applicable
                 requirements of 40 CFR 1270.14-270.29 could pose a significant
                 likelihood of exposure in this situation.  The violation could
                 have a significant adverse effect on the procedures for
                 implementing ch« RCRA program.  Extent of Devtaeion.  Major -
                 Part 3 application was seriously incomplete.
    
             (C) Gravity-based Penalty:  Moderate potential for hara and
                 aajor extent of deviation lead one to the cell vith the
                 range of $8,000 to $10.999.  The aid-point is $9.500.
    
             (0) economic Benefit of Moncompliance:  Failure to submit or
                 submittal of an inccaplete Part 3 application has been
                 identified as an area for which an economic benefit component
                 may be significant.  In a document prepared by EPA's Office
                 of Solid Waste requesting clearance from the Office of
                 Management and Budget to call in Part 3 applications, i: was
                 estimated that the cost of preparing a Par: B for a land
                 disposal facility was approximately SI SO.000.  The document.
                 entitled. FY 1984 Burden'Hours for RCRA Land Disoosal
                 Permitting Standards a dated Soveaoer Id. 1983.]
    
                 The economic benefit component should be calculated using
                 the foraula set out in Section VII:
    
           Economic
           Benefit  •  Avoided Costs (1-T)  * (Delayed Costs x Interest Rate)
    
                 Failure to submit a complete Part B is a delayed cost.
                 Company Z eventually will spend the aoney in order to
                 achieve comoliance. 'No avoided costs are associated with
                 this violation.  The economic benefit should be calculated
                 for a one year period.  The IRS interest rate for 1983 is
                 13.55 (the average of 16Z and IIS).
    
                 Economic Benefit - SO * ($150.000 x 13.5X)
                                  - $20.250
    
                 Penalty proposed in complaint » gravity-based penalty *•
                                                 economic benefit component
                                               - $9,500 * $20.250
                                               • $29.750
    
                 Because noncompliance continued over a period of several
                 months, the proposed penalty does not exceed $25,COO per
                 day of violation.
     RCRA Compliance/Enforcement                A-34           Guidance  Manual 1984
    

    -------
    Appendix  	     <	RCRA Civil Penalty Policy
                                         .  34 -
    
    
             (E) Settlement Adjuscaent:   Ac cht  stecltatne  conference,
                 Company E raised and documented chat  1C  was  in  a  poor
                 finanetal staca and would  be unable  eo pay the  full  penalty.
                 Company E also cold th«  Agtncy  :hae  ic inctndtd eo etas*
                 handling hazardous waao.   3«caus« of :h«  company's
                 inabiliry co pay.  and because of th«  Agency's desire ehac
                 Coapany £ puc whae aoney ic has iaca  proper  closure  and
                 pose-closure care  ac lea facilicy, ehe penalcy was reduced
                 eo S3..000.  A Compliance Order  vas issued  puccing Coapany £
                 on a schedule for  closing  ics facility in  accordance wich
                 its approved closure plan.
    RCRA Compliance/Enforcement               A-35           Guidance Manual  I "?
    

    -------
    Appendix	.	RCRA Civil Penalty Policy
    RCRA Compliance/Enforcement              A-36          Guidance Manual  1984
    

    -------
    Appendix
    2    Additional  Sources  of Compliance/
          Enforcement Information
    The following is a listing of all RCRA compliance/enforcement-related
    policies and guidances that are currently in effect.
    
    Copies  of these documents may be obtained from OECM or the Office of Waste
    Programs Enforcement.
    TITLZ OF DOCUMENT
        DATE OF DOCUMEKT
                                 Compendium
    RCRA Compliance/Enforcement
      Guidance Manual  Policy Compendium                          12/15/83
    
    Titles  Contained Within Compendium;
    R-l   Consolidated Rules of Practice Governing Administrative   12/2/80
          Assessment of Civil Penalties and Revocation ofPermits:
          Suspension of Portion of Final Rule
    
    R-2   Interim Status Under Section 3005(e) of RCRA             3/14/81
    
    R-3   Guidance on Developing Compliance Orders Under §3008     7/7/81
          of RCRA
    
    R-4   Use of RCRA §3008(g) Independently of $3008(a)           7/28/81
    
    R-5   RCRA §3005(e); Continued Operation of Hazardous Waste     7/31/81
          Facilities by Owners and Operators Who Have Failed to
          Achieve Interim Status
    
    R-6   Guidance Memorandum on the Use and Issuance of           9/11/81
          Administrative Orders Under §7003 and §3013 of RCRA*
    *  This  guidance has been revised; the  current version is contained in
       Chapter Six of this manual.
    RCRA Compliance/Enforcement
                                         A-37
    Guidance Manual 1984
    

    -------
    Appendix
    Additional Sources, of Compliance/Enforceaent Information
    R-7   Guidance on Implemencing Settlement Agreement on the       11/20/81
          RCRA-Related Issues in NRDC v. EPA and Consolidated
          Cases
    
    R-8   Guidance on Che Application of the Interim Status          12/21/31
          Standards (40 C.F.R. Part 265) to Facilities Which Rave
          Failed to Qualify for Interim Status
    
    R-9   Guidance on Developing Compliance Orders Under $3008 of    1/22/82
          RCRA; Enforcement of Groundwater Monitoring
          Requirements at Interim Status Facilities
    
    R-10  Groundwater Monitoring Requirements During Interim         1/77/82
          Status
    
    R-ll  EPA Enforcement of RCRA-Authorized State Hazardous         3/15/82
          Waste Laws and Regulations
    
    R-12  Definition of "Major" Hazardous Waste Generators,          5/14/82
          Transporters and Facilities                                (Revised
                                                                     7/11/83)
    
    R-13  Status of State Permits Issued Before a State Receives     8/9/82
          RCRA Phase II Authorization
    
    R-14  Applicability of Interim Status Standards, 40 C.F.R.       10/4/82
          Part 265, to Small Quantity Generators Who Have
          Notified and Filed a Part A Permit Application
    
    R-15  Guidance on Developing Compliance Orders Under §3008       10/6/82
          of RCRA; Enforcement of the Financial Responsibility
          Requirements Under Subpart H of 40 C.F.R. Parts 264 and
          265
    
    R-16  Enforcement of Groundwater Monitoring Requirements         3/21/83
    
    R-17  Delegation/Designation of Enforcement Related              5/10/83
          Delegation of Authority Under RCRA and CERCLA
    
    R-18  RCRA Regulation of Wastes Handled by DOE Facilities        6/22/83
    
    R-19  Guidance on Developing Compliance Orders Under             9/9/33
          Under Section 3008 of RCRA; Failure to Submit and
          Submitcal of Incomplete Part B Permit Applications
    
    R-20  A List of Program Implementation Guidances Issued to       10/31/83
          Date
    
    R-21  A List of Regulatory Interpretation Memoranda Issued       10/31/83
          to Date
    RCKA Compliance/Enforcement
                          A-38
    Guidance Manual 1984
    

    -------
    Appendix
    Additional Sources of Compliance/Enforcement Information
    General Enforcement Policy Compendium                           3/3/83
    
    Titles Contained Within Compendium:
    
    "Visitor's Releases and Hold Harmless Agreements as a           11/8/72
    Condition to Entry to EPA Employees on Industrial
    Facilities"
    
    "Professional Obligations of Government Attorneys"              4/19/76
    
    "Memorandum of, Understanding Between the Department of          6/15/77
    Justice and the Environmental Protection Agency"
    
    "'Ex Parce' Contacts In EPA Rulemaking"                         8/4/77
    
    "Conduct of Inspections After the Barlow's Decision"            kl11119
    
    "Contacts with Defendants and Potential Defendants in           10/7/81
    Enforcement Litigation"
    
    "'Ex Parte' Rules Covering Communication which are the          12/10/81
    Subject of Formal Adjudicatory Hearings"
    
    "Quantlco Guidelines for Participation Litigation"              4/8/82
    
    "Agency Guidelines for Participation in Grand Jury              4/30/82
    Investigations"
    
    "Reorganization of the Office of Regional Counsel               5/7/82
    (includes Administrator's Memorandum of September 15,
    1981)"
    
    "Coordination of Policy Development and Review"                 6/23/82
    
    "General Operating Procedures for EPA's Civil Enforcement       7/6/82
    Program"
    
    "Case Referrals for Civil Litigation"                           9/7/82
    
    "Criminal Enforcement Priorities for the Environmental          10/12/82
    Protection Agency"
    
    "General Operating Procedures for the Criminal Enforcement      10/27/82
    Program"
    
    "Regional Counsel Reporting Relationship"                       8/3/83
    
    "Guidance for Drafting Judicial Consent Decrees"                10/19/83
    
    "Implementation of Direct Referrals for Civil Cases"            11/28/83
    RCRA Compliance/Enforcement
                          A-39
    Guidance Manual 1984
    

    -------
    Appendix           Additional Sources of Compliance/Enforcement laforaetloa
    
    
    
    "Consent Decree Tracking Guidance"                              12/16/83
    
    "Guidance on Evidence Audit of Case Files"                      12/30/83
    
    
           Additional Sources of RCRA Compliance/Enforcement Information
    
    EFA Delegations of Authority Manual
    
    NEIC Policies and Procedures Manual (Multi-Media)
    
    RCRA Confidential Business Information Security Manual
    
    RCRA Civil Penalty Policy                                       5/8/84
    
    RCRA/CERCLA Case Management Handbook                            8/8/84
    
    Implementing the State/Federal Relationship in                  6/6/84
    Enforcement:  State/Federal Enforcement Agreements
    
    Interia National Criteria for a Quality Hazardous Waste         5/84
    Management Program
    
    Enforcing Groundwacer Monitoring Requirements in RCRA           8/16/84
    Part B Permit Applications
    RC8A Compliaace/Enforceaent              A-40          Guidance Manual 1984
    

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  • 
    f *SJLi *-      U-NITED STATES ENVIRONMENTAL PROTECTION AGENCY
           '                    WASHINGTON DC 2046C
     t.
                                    SEP 2 8 1984
         MEMORANDUM
    
         SUBJECT:   RCRA Compliance/Enforcement  Guidance  Manual
    
         PROM:      Courtney M. Price  C  i^..7"_
                    Assistant Administrator fo>
                      Enforcement and  Compliance Monitoring
               Lee M. Thomas ^^^^^--^^Xy^V-^
               Assistant Administrator  for
                 Solid.Waste and Emergency Response
    
    TO:        Addressees
    
    
         Attached is a copy of the RCRA Compliance/Enforcement
    Guidance Manual.  The Manual represents a  joint effort by
    the Office of Enforcement and Compliance Monitoring and
    the Office of Solid Waste and Emergency Response to develop
    a comprehensive document that provides essential information
    to program personnel and enforcement attorneys on the substantive
    and procedural requirements necessary to ensure compliance
    and prepare enforcement cases arising under the Resource
    Conservation^and. Recovery Act (RCRA).  The Manual not only
    containSafpecifJTc guidance 6n developing enforcajoojit ca«,«s,
    but aIsolreferences all RCRA enforcement. poli^oy^ajM) guidance,
    In particular,'the Manual-complements the s^her basijc
    complianc'e/ehforcement hazardous waste managem*jM> tool*: *
    
              •  The RCRA Compliance/Enforcement Guidance "
                 ManuaX Policy Compendium — which contains or
                 references the operative RCRA
                                                                    ,
                      The RCRA/CERCLA Case Management Handbook —
                      which provides detailed guidance  relating  to
                      hazardpus waste judicial case procedures;
                                                         * ' * ** ^
                      The CERCLA Compliance/Enforcement Policy
                      Compendium — which contains or references th%
                      operative CERCLA enforcement polici*s;  and
    

    -------
                                  -2-
               •  The Superfund Guidance  Manual  — which  contains
                 program guidances  relating  to  CERCLA.
    
         The RCRA Compliance/Enforcement Guidance Manual  is
    a dynamic  document  that will be supplemented or modified
    periodically as policies and procedures  change.  TO  facilitate
    the process of communicating supplemental material to Manual
    users, a return form is attached to  this memorandum  to be
    filled out and returned to Headquarters  by  the ultimate
    Manual recipient.   Headquarters staff will  maintain a mailing
    list of Manual users so that any revisions  that need  to be
    made, or any new enforcement policies that  are subsequently
    issued, may easily  be transmitted to the proper individual.
    
         Although it is difficult to make a manual of this sort
    entirely satisfactory to all potential users, it is hoped
    that with  the Manual's usage, any problems  that do arise or
    any revisions that  should be made will be brought to  our
    attention.
    
         If you have any questions  about matters contained in
    this memorandum, please contact Ted  Firetog of the Office
    of Enforcement and  Compliance Monitoring (FTS-475-8782) or
    Marcie Kleban of the Office of  Solid Waste  and Emergency
    Response (FTS-475-8235).
    
    Addressees:
    
    General Counsel
    Assistant Administrator for Policy,  Planning
      and Evaluation
    Senior Enforcement  Counsel
    Regional Counsels
    Regional Waste Management Division Directors
    Associate  Enforcement Counsel for Waste  Enforcement
    Director, Office of Waste Programs Enforcement
    Director, National  Enforcement  Investigations Center
    Assistant Attorney General for  Land  and Natural Resources
    
    Attachments
    
    cc:  Regional Administrators (w/o attachments)
    

    -------
    <>EPA    Resource Conservation
               and Recovery Act
               Compliance/Enforcement
               Guidance Manual
               U.S. Environmental Protection Agency
               Washington DC  20460
    

    -------
    Table of Contents
    Chapter One  Overview
    
    
    
    
    1  Purpose of Che Manual                                           1-1
    
    
    
    
    2  Overview  of Che Ace                                            1-3
    
    
    
    3  The Resource Conservation and Recovery AcC (as amended)           1-11
    
    
    
    
    4  RCRA Regulacory Elemencs                                        1-51
    
    
    
    
    
    
    Chapter Two  General Operating Procedures
    
    
    
    
    
    
    Chapcar Three  Compliance Monitoring Procedures
    
    
    
    
    1  IncroducCion                                                   3-1
    
    
    
    
    2  Inspections                                                    3-3
    
    
    
    
    3  Warrancs                                                       3-9
    
    
    
    
    4  Subpoenas                                                     3-21
    
    
    
    
    5  Seccion 3013(a) Orders                                          3-23
    
    
    
    
    
    
    Chapter Pour Documentation of Evidence
    
    
    
    
    1  IncroducCion                                                   4-1
    
    
    
    
    2  Inspeccion File Review                                          4-3
    
    
    
    
    3  Review of Adequacy of Evidence                                  4-5
    RCRA Compliance/Enforcement               i            Guidance Manual  1984
    

    -------
                                                              Table of Contents
    Chapter Five  Determination of Appropriate Enforcement Response
    
    1  Introduction                                                      5-1
    
    2  Level of Action Policy                                            5-3
    
    
    Chapter Six  Administrative Enforcement Actions;
      Notices of Violation and Administrative Orders
    
    1  Introduction                                                      6-1
    
    2 • Administrative Enforcement Proceedings                            6-3
    
    
    Chapter Seven  Administration Enforcement Actions;
    Civil Penalty Proceedings
    
    1  Introduction                                                      7-1
    
    2  Elements of a Violation:  Administrative                          7-5
    
    3  Complaint Preparation and Filing                                  7-7
    
    4  Prehearing Stage                                                  7-2.1
    
    5  Hearing Stage                                                     7-41
    
    6  Post-Hearing Stage                                                7-57
    
    
    Chapter Eight  Judicial Enforcement;  Civil Actions
    
    1  Introduction                                                      8-1
    
    2  Elements of a Violation:  Civil                                   8-3
    
    3  Procedures for Filing Actions                                     8-7
    
    4  Injunctive Actions                                                8-19
    
    5  Settlement Agreements                                             8-39
    
    
    Chapter Nine  Judicial Enforcement;  Criminal Actions
    
    
    Chapter Ten  Post-Settlement Enforcement
    
    
    Chapter Eleven  Special Considerations
    RCBA Compliance/Enforcement              ii            Guidance Manual 1984
    

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                                                              Table of Concents
    Appendix
    
    
    
    1  RCRA Civil Penalty Policy                                         A-l
    
    
    
    2  Additional Sources of Compliance/Enforcement la formation          A-2
    RCRA CoBpliance/Enforceaent              iii           Guidance Manual 1984
    

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                                                              Table of Concents
    RCRA Compllance/Bnforceaent             iv             Guidance Manual 1984
    

    -------
    Chapter One
    Overview
    Chapcer Concenes	Page
     I  Purpose of  :he Manual                                          1-1
    
       Reservation                                                   1-1
       The Updace  System                                              1-1
       Common Acronyms and Abbreviations Used  in This Manual             1-2
    2  Overview of  che Act                                            1-3
    
       Purpose and  Scope                                              1-3
       Synopsis of  the Act                                            1-4
    3  The Resource Conservation  and Recovery  Act                       l-ll
    4  RCRA Regulatory Elements                                        1-51
    
       Identification and Listing of Hazardous Wastes                   1-52
       Standards  for Generators  of Hazardous  Waste                      1-55
       Standards  for Transporters of Hazardous Waste                    1-57
       Standards  for Hazardous Waste T/S/D Facilities                   1-59
       Hazardous  Waste T/S/D Facility Permits                          1-63
       State Hazardous Waste Program Authorization                      1-65
    RCRA Conpliance/Enforcement            1-i            Guidance Manual 1984
    

    -------
        Chapter One
                                                                           Contents
    RCRA Compliance/Enforcement
                                                           Guidance Manual  1984
    

    -------
                                                              Table of Concents
    Appendix
    
    
    
    1  RCRA Civil Penalty Policy                                         A-l
    
    
    
    2  Additional Sources of Compliance/Enforcement Information          A-2
    RCRA Compliance/Enforcement              ill           Guidance Manual 1984
    

    -------
                                                              Table of Contents
    RCRA Compliance/Enforcement             iv             Guidance Manual 1984
    

    -------
    Chapter One
    1     Purpose  of the  Manual
    The purpose of chis  manual  is Co provide guidance co  compliance/enforcement
    personnel on Che substancive and procedural requirements necessary for
    ensuring compliance  and  preparing enforcement cases under  the Resource
    Conservacion and Recovery Ace (RCRA).
    
    The manual describes Che processes of case development  and judicial pro-
    ceedings including:
    
         •  Analyzing evidence  collected during a compliance inspection to
            determine its  sufficiency in documenting a suspected violation;
    
         •  Issuing an enforcement action;
    
         •  Presenting evidence in an adjudicatory hearing; and
    
         •  Monitoring compliance with consent orders and decrees and orders.
    Reservation
    The policies and  procedures sec forth herein and  the  internal office proce-
    dures adopced pursuanc  hereco are intended solely for the guidance of
    United States Environmental Proceccion Agency (EPA) personnel.  These poli-
    cies and procedures  are not intended co be relied upon Co create a right or
    benefic (subscancive or procedural) enforceable ac law by a party co liti-
    gation with che  United  States Environmental Proceccion Agency.  The Agency
    reserves Che right  to take any action alleged to  be at variance with these
    policies and procedures or that is not in compliance  with internal office
    procedures.
    The Update System
    As revised or additional material is developed for the  manual,  it will be
    distributed co all  manual holders.  A transaittal  form  will accompany and
    RCRA Compliance/Enforcement             1-1            Guidance Manual 1984
    

    -------
    Chapter One	Purpose of  the Manual
    
    
    explain chese changes.  The revised or additional pages will be  identical
    Co Che original page, buc wich added idencificacion ac she botcom of  Che
    page.
                                        ?»g«        Ca<
    -------
    Chapter One
    2    Overview of  the Act
    The'Resource Conservation and Recovery Ace  (RCRA)* was passed by Congress
    in  1976 as Che primary statute for the regulation of solid and hazardous
    vasce.  Regulations promulgated pursuant  to  the Act are found at 40 C.F.R.
    Parts 240 to 271, and Part 124.
    Purpose and Scope
    RCRA and its amendments nre designed  to  provide for the safe disposal of
    discarded materials and to regulate the  management of hazardous waste.
    RCRA was created to accomplish four specific goals:
    
         •  To create a "cradle-to-grave" system for regulating hazardous waste
            (i.e., a system of controlling all aspects of hazardous waste
            management from the time a waste Ls generated until the time the
            waste is properly disposed).   This system is to be administered by
            the federal government except where a state has chosen to operate
            an "equivalent" program;
    
         •  To encourage states to establish solid waste control plans, which
            would include provisions for  closing open dumps;
    
         •  To encourage research and development in the field of recycling
            recovered materials; and
    
         •  To establish an Office of Solid  Waste within EPA.
       Resource Conservation and Recovery  Act of  1976, Pub. L. No. 94-530,  90
       Stat. 2797, 42 U.S.C. §§6901-6987  (1976) (hereinafter referred to as
       "RCRA" or "Act").  RCRA completely  replaced  the Solid Waste Disposal Act
       of  1965, Pub. L. No. 89-272,  79 Stat. 997  (1965), and supplemented Che
       Resource Recovery Act of 1970,  Pub.  L. No. 91-512, 84 Stat. 1227 (1970).
       RCRA was amended by the Quiet Communities  Act of  1978, Pub. L. No.
       95-609, the Used Oil Recycling Act  of  1980,  Pub.  L. No. 96-463, and the
       Solid Waste Disposal Ac: Amendments of  1980, Pub. L. No. 96-482.
    RCRA Compliance/Enforcement            1-3             Guidance Manual 1984
    

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    Chapter One	Overview of the Act
    Synopsis of Che Act
    Although all sections of the Act are important, this chapter focuses only
    on those pro-.-3ions of RCRA that regulate hazardous waste.  Under Section
    1004(5) of RCRA, the term "hazardous waste" is defined as:
    
            [A] solid waste, or combination of solid waste, which
            because of its quantity, concentration, or physical,
            chemical, or infectious characteristics may—
    
              (A) cause, or significantly contribute to an increase
              in mortality or an increase in serious irreversible,
              or incapacitating reversible, illness; or
    
              (B) pose a substantial present or potential hazard to
              human health or the environment when improperly
              treated, stored, transported, or disposed of, or
              otherwise managed.
    
    The major provisions of the Act that are applicable to hazardous waste
    management are contained in Subtitle C of RCRA (Sections 3001 through
    3013).  The pertinent sections of Subtitle C as well as those provisions
    relating to citizen suits and imminent hazards are briefly reviewed below.
    
    
    Identification and Listing of Hazardous Waste (Section 3001)
    
    The Agency is required to develop criteria to be used for identifying Che
    charact-riscics of hazardous waste and for listing hazardous waste chat
    will be subject to regulation.  Factors that EPA must take into account
    include coxicicy, persistence, degradabilicy, potential for accumulation in
    tissue, flammability, and corrosiveness.  The Agency is then required to
    promulgate regulations based upon the criteria chat identify the
    characteristics of hazardous waste and that list particular hazardous
    wastes.  These listed wastes and any other wastes exhibiting the
    characceriscics defined in Che regulations will be subject to the
    provisions of the Act.
    
    
    Standards Applicable to Generators of Hazardous Waste (Section 3002)
    
    EPA must promulgate regulations for generators of hazardous waste that
    establish such standards as may be necessary to protect human health and
    the environment.  These regulations must include:
    
         •  A recordkeeping system chac cracks the quantity of hazardous waste
            generated, che significant constituents of such waste,  and the
            disposition of the waste;
    
         •  A labeling procedure for containers used in storing, transporting,
            or disposing of hazardous waste;
    RCRA Compliance/Enforceaent            1-4             Guidance Manual 1984
    

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    Chapter One	Orervlev of the Act
         •  A standard for use of appropriate containers;
    
         •  A- procedure for furnishing information concerning the general
            chemical composition of the hazardous waste to persons that will be
            transporting, treating, storing,  or disposing of the waste;
    
         •  A procedure for using a manifest  system (or any other reasonable
            means necessary) to ensure that all hazardous waste generated is
            destined for and arrives at a permitted T/S/D facility;  and
    
         •  A procedure for submitting reports to EPA or an authorized state
            regarding the quantity of hazardous waste generated during a
            particular time period and the disposition of that waste.
    Standards Applicable to Transporters of Hazardous Waste (Section 3003)
    
    The Agency must promulgate regulations for transporters of hazardous waste
    that establish such standards as may be necessary to protect human health
    and the environment.  Such standards must contain at least the following
    requirements:
    
         •  A recordkeeping system that tracks the hazardous waste transported,
            and its source and delivery point;
    
         •  A prohibition against the transportation of waste that is not
            properly labeled;
    
         •  A provision for compliance with a manifest system; and
    
         •  A restriction for transportation to only a permitted T/S/D
            facility.
    Standards Applicable to Owners and Operators of Hazardous  Waste Treatment,
    Storage, and Disposal Facilities (Section 3004)
    
    EPA must promulgate regulations establishing such performance standards,
    applicable to owners and operators of hazardous waste treatment,  storage,
    and disposal (T/S/D) facilities, as may be necessary to protect human
    health and the environment.  In establishing these standards the Agency
    must, where appropriate, distinguish between requirements  appropriate for
    new T/S/D facilities and requirements that would apply to  existing T/S/D
    facilities.  The regulations must include, at a minimum,  the following
    requirements:
    
         •  A recordkeeping system chat tracks the type of waste and the method
            of treatment, storage, or disposal;
    
         •  Reporting, monitoring, and inspection requirements;
    
         •  A provision for compliance with the manifest system;
    RCRA Compliance/Enforcement1-5Guidance Manual 1984
    

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    Chapter One                                             Overview of the Act
    
    
         •  A provision for treatment, storage, or disposal of hazardous waste
            according to SPA-approved methods and practices;
    
         •  Requirements for Che location, design, and construction of T/S/D
            facilities;
    
         •  A contingency plan for effective action to minimize unanticipated
            damage as a result of the treatment, storage, or disposal of
            hazardous waste; and
    
         •  A provision for the maintenance and continuity of operation,
            qualifications of ownership, personnel training, financial
            responsibility, and compliance with permit requirements.
    Permits for the Treatment, Storage, or Disposal of Hazardous Waste (Section
    3005)
    
    The treatment, storage, or disposal of hazardous waste is prohibited except
    in accordance with a permit issued pursuant to this section.  An applica-
    tion for a permit must contain such information as required by the regula-
    tions including:
    
         •  Estimates regarding the composition, quantity, and concentration of
            hazardous waste proposed to be treated, transported, stored, or
            disposed of;
    
         •  The time, frequency, or rate at which the waste is proposed to be
            treated, transported,  stored, or disposed of;  and
    
         •  The site of treatment, storage, or disposal.
    
    A permit will be issued once a determination is itade  that che applicant is
    in compliance with the requirements of tills section and the regulations
    applicable to owners and operators of T/S/D facilities.  A permit may be
    revoked if the facility fails to comply with this section or with Section
    3004.
    
    A person atay be entitled to interim status (i.e., may be treated as having
    been issued a permit until final disposition of the application is made) if
    that person:
    
         •  Owns or operates a facility that is required  to have a permit and
            that was in existence on November 19, 1980;
    
         •  Has complied with the preliminary notification requirement of RCRA
            Section 30lO(a); and
    
         •  Has applied for a permit.
    RCRA Compliance/Enforcement            1-6             Guidance Manual 1984
    

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    Chapter One	               Overview of che Act
    Authorized State Hazardous Waste Programs ^Section 3006)
    
    Under this section, EPA is Co promulgate guidelines to assist states la
    developing hazardous waste management programs and procedures by which
    states '.;wy be* authorized Co carry out their hazardous waste program in lieu
    of che federal program.  A state program may not be authorized if EPA finds
    that it:
    
         «  Is not equivalent Co che federal program;
    
         •  Is not consistent with che federal or state programs applicable in
            other states;
    
         •  Does not provide for adequate enforcement.
    
    
    Inspections (Section 3007)
    
    For purposes of enforcing or developing regulations,  this section
    authorizes duly designated officers, employees, or other representatives of
    EPA or a state (with an authorized program) to:
    
         •  Request information from any person who generates.,  scores,  treats,
            transports, disposes of, or has handled hazardous waste;
    
         •  Have access Co and be permitted to make copies of all records
            relating to such waste; and
    
         •  Conduct inspections and take samples of any hazardous waste (or
            samples of any containers or labeling for  such waste) at any
            establishment or other place where such vasces are,  or have been,
            generated, scored, treated, disposed of, or transported from.
    
    Any Information, records, or reports obtained pursuant to this section must
    be made available to the public,-unless a claim of confidentiality  is
    asserted under Section 1905 of Title 18 of the United States Code.
    Federal Enforcement (Section 3008)
    
    Whenever SPA determines that any person is violating Subtitle C  of RCRA,
    the Agency may issue an order requiring compliance immediately or within  a
    specified time period.  Any such order may include suspension or revocation
    of a permit issued under che Ace.  Alternatively,  EPA may seek injunccive
    relief against che violator through a civil action in an appropriate  United
    States discricc court.  A civil penalcy (up to $25,000 for each  day of
    continued noncompliance) may be imposed if che violator fails Co cake
    corrective accion within the time specified in che order.
    
    In addition, under Section 3003(g), any person who violates any  requirement
    of Subcicle C of RCRA is liable for a civil penalty of up to $25,000  for
    each such violation, with each day of noncompliance conscitucing a separace
    violacion.
    RCRA Compliance/Enforcement1-7Guidance Manual 1984
    

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    Chapter One	 ';	Overvlev of the Act
    
    
    Under Section 3008(d), criminal penalties nay be imposed on any person who
    knowingly^
    
         •  Tranapo'•'-.:'• ->• Uizardous waste to an unpermitted facility;
    
         •  Treats, stores, or disposes of a hazardous waste without a permit
            or in knowing violation of any material condition or requirement
            of a permit;
    
         •  Makes a false material statement or representation in any appli-
            cation, label, manifest, record, report, permit, or other docu-
            ment filed, maintained, or used for the purpose of compliance with
            Subtitle C of RCRA; or
    
         •  Generates, stores, treats, transports, disposes of, or otherwise
            handles any hazardous waste and who knowingly destroys, alters,
            or conceals any record required to be maintained.
    
    Section 3008(e) contains separate criminal penalties for "knowing endanger-
    ment"~vhen a person knowingly places another person in "imminent danger of
    death or serious bodily injury" as a result of the violations listed above.
    
    
    Retention of State Authority (Section 3009)
    
    States are prohibited from imposing requirements less stringent than those
    authorized by Subtitle C; however, states are permitted to establish more
    stringent requirements than those imposed by the federal regulations.
    
    
    Notification of Hazardous Waste Management Activities (Section 3010)
    
    Any person who generates or transports a hazardous waste or who owns or
    operates a T/S/D facility must notify EPA concerning their hazardous waste
    management activities within 90 days of the date EPA promulgates regula-
    tions identifying hazardous wastes.  No hazardous waste identified or list-
    ed in the regulation may be transported, treated, stored, or disposed of
    unless notification is provided.
    
    
    Monitoring. Analysis, and Testing (Section 3013)
    
    Pursuant to Section 3013 of RCRA, the Administrator may issue an admin-
    istrative order requiring the owner or operator of a facility or site (at
    which hazardous waste is, or has been, stored, treated, or disposed of) to
    conduct such monitoring, casting, analyzing, and reporting with respect to
    the facility or site as the Administrator deems reasonable.  The Adminis-
    trator, however, must first determine, upon the receipt of any information,
    that the presence of any hazardous waste at the facility or site or the re-
    lease of any such waste may present a substantial hazard to human health or
    the environment.
    RCBA Compliance/EnforcementPSGuidance Manual 1984
    

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    Chapter One
                       Overview of the Act
    If the facility or site is no longer in  Deration and the present owner or
    operator could not reasonably be expect  i to have actual knowledge of the
    presence of hazardous vastes or che poc  ntial for release, the Administra-
    tor is authorized under this section tc  issue an order to the most recent
    previous owner or operator of the site  no could reasonably be expected to
    have such actual knowledge.
    
    In addition to requiring compliance, a  .istrict court has jurisdiction m-
    der Section 3013 to assess civil penal  .es of up to $5,000 for each day
    during vhich the defendant fails or re ises to comply with a Section 3013
    order.
    Citizen Suits (Section 7002)
    Any person may commence a civil actio
    other person alleged to be in violati
    regulation, condition, or requirement
    an action against EPA alleging that t 3 Agency has failed to perform a
    nondiscretionary duty under RCTIA.
      on his or her own behalf against any
     i of any permit,  standard,
     )f the Act.  A person can also bring
    laminent Hazard (Section 7003)
    
    Upon the receipt of evidence that th
    portation, or disposal of any solid
    imminent and substantial enaangermer
    Administrator may bring suit for in;
    including issuing such orders as ma
    and the environment.  Any person wh
    order may be fined, in an appropria
    more than $5,000 per day of violati
     handling, storage,  treatment,  trans-
    is te or hazardous waste may present an
     to health or the environment,  the
    nctive relief or take other accion
    be necessary to protect public  health
    fails to obey any imminent hazard
     United States district court,  not
    RCRA Compliance/Enforcement
      1-9
    Guidance Manual 1984
    

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     Chapter  One	Overview of the Act
    RCRA Compliance/EaforceaeneT  35Guidance Manual 1984
    

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    Chapter One
    3   The Resource Conservation and
         Recovery Act [As Amended]
                        THE SOLID WASTE DISPOSAL ACT
                       (P.L 94-580) SHOWING CHANGES MADE
                       BY  THE 1978 AND 1980 AMENDMENTS
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     RCRA Conpliance/Enforcement
    1-11
    Guidance Manual  1984
    

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     Chapter  One
                                                       The  Resource  Conservation  and  Recovery Act
                          CONTENTS
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