-------
Chapter Tvo
Organizational Charts
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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.)
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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.
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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.
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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
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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
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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
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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."
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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
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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
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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
-------
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
-------
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
-------
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.
-------
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
-------
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)
-------
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)
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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
RCRA Compliance/Enforcement 7-25 Guidance Manual 1984
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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.
-------
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)
RCRA Compliance/Enforcement7-27Guidance Manual 1984
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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).
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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)
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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.
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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)
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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
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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)
RCRA CoBpliance/Enforceaent 7-47 Guidance Manual
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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.
RCRA Compliance/Enforcement 7-49 Guidance Manual 1984
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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)
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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)
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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
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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
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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
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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.).
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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
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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
-------
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
-------
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
-------
Chapter Nine Contents
RCRA Compliance/Enforcement 9-ii Guidance Manual 1984
-------
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«
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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.
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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
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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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
. 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
-------
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
-------
(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
-------
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
-------
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
-------
• 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
-------
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
-------
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
-------
Appendix
Contents
A-ii
Guidance Manual 1984
-------
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
-------
(*•»
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.
-------
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
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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
A-5
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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
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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
- 8 -
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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Appendix RCRA Civil Penalty Policy
• 9 -
* 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.
RCRA Compliance/Enforcement A-10 Guidance Manual 1984
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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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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.
RCRA Compliance/Enforcement A-12 Guidance Manual 1984
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Appendix __ &CRA Civil Penalty Policr
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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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.T-.
•" Appendix RCRA Civil Penalty Policy
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* 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
. 14 -
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
RCRA Compliance/ 'aforcenent ' A-l 5 c,.-(^-r,,-«. «,„,,-,! ToTT
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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
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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
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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 "?
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Appendix . RCRA Civil Penalty Policy
RCRA Compliance/Enforcement A-36 Guidance Manual 1984
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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
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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
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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
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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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