United States
           Environmental Protection
           Agancy
            Office of
            Solid Waste and
            Emergency Response
 &EPA
DIRECTIVE NUMBER:   9940.3
TITLE: Criteria for Eliminating Headquarter's
Concurrence on RCRA 3008 (h) Orders
           APPROVAL DATE: June 26, 1987
           EFFECTIVE DATE: June 26' 1987
           ORIGINATING OFFICE:   OWPB/CIB
           13 FINAL
           D DRAFT
             LEVEL OF DRAFT
              DA  Signed by AA or OAA
              D B  Signed by Office Director
              DC  Review & Comment
           REFERENCE (other documents):
S WER      OS WER       OS WER
  DIRECTIVE    DIRECTIVE   Dl

-------

-------
                          unucu wioica
                                Washington. DC 20460
                 OSWER Directive Initiation Request
                                 1. Directive Number
                                    9940.3
                                2. Originator Information
      Name of Contact Person
        Cindy Bvron
     Mail Code
     WH-527
Office
OWPE/CIB
Telephone Code
  475-8728
      3. Title
           Criteria for Eliminating Headquarter's Concurrence  on  RCRA
           Section 3008 (h) Orders
      4. Summary of Directive (include brief statement of purpose)
           Memorandum describes the criteria developed  for  eliminating
           Headquarter's concurrence on  3008  (h) Orders.
      5. Keywords
               RCRA Section 3008  (h) Order
       I. Does This Directive Supersede Previous Oirective(s)'
      b. Does It Supplement Previous Directive(s)?
                                         No
                                         No
                    Yes   What directive (number, title)
                    Yes   What directive (number, title)
      7. Draft Level
          A - Signed by AA/DAA
8 - Signed by Office Director
      C - For Review & Comment
         i - In IHV
eTopment
8. Document to be distributed to States by Headquarters?


Yes
^^^^wa
X

No
This Request Meats OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
faJ^isuuky "X JfY-^-^-t
10. Name and Title of Approving Official    
Date
-7/fe/6-7.
Date
     EPA Form 1315-17 (Rev. S-B7) Previous editions are obsolete.
   OSWER          OSWER              OSWER
VE     DIRECTIVE         DIRECTIVE       DIRECTIVI

-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460                994 Q  3



                               JUN 261987


                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Criteria for Elimination of Headquarters'  Concurrence
          on Selected/*C*A.3008(h)  Orders
           '. WfnStc
FROM:     J. Winstort Porter
          Assistant Administrator

TO:       Regional Administrators
          Regions I - X                                   ,

     Regional Administrators may issue Administrative Orders
(both consent and unilateral) under RCRA  3008(h) pursuant to     -*
Delegation 8-32, dated March 6, 1986, "Administrative Enforcement |  ,
Corrective Action Authority:  Issuance of Orders and Signing      *=
of Corrective Consent Agreements".  However/ under the current
delegation for 3008(h), Regional Administrators must obtain
the advance concurrence of the Assistant Administrator for
Solid Waste and Emergency Response [which has been redelegated
to the Director, Office of Waste Programs Enforcement (OWPE)]
before exercising the authority to issue  3008(h) orders.

     In order to complete full delegation, we have developed
criteria for eliminating the Headquarters' concurrence requirement
for individual Regions.  In developing the criteria, we  incorporated
the key elements outlined in the 3008(h) .model order, the
Corrective Action Plan and the Interim Measures Guidance document.
We have also reviewed past criteria used to determine delegation
of the authority for RCRA 3008(a), consulted with the Office
of Enforcement and Compliance Monitoring, and considered Regional
comment on draft criteria.

     For waiver of Headquarters' concurrence on consent  orders,
the Region must have issued four consent orders of acceptable
technical and legal quality.  Waiver of Headquarters' concurrence
for unilateral orders will require the issuance of four  quality
orders (consent plus unilateral) of which at least two must
have been unilaterals.  The specific quality criteria are
attached.

-------
                                                       9940,3


     Once concurrence has been waived, Headquarters will still
maintain a 21 day consultation role for the 3008(h) orders
which involve cases of national significance (high visibility or
precedent setting cases), federal facilities,  commercial land
disposal facilities, commercial incinerators,  and the corrective
measures decision.  We are retaining this consultation role on__
the federal facilities to ensure national consistency in light
of recent congressional and agency concerns and on the commercials
to assure consistent implementation of the off-site disposal
requirements of 121 of SARA.

     In order to ensure consistency with Superfund's selection"""
of remedy decisions, I would also like to maintain the consulta-
tion role on all corrective measures decisions regardless of
whether the decision comes at some point during the existing
order requiring the RFI/CMS or is embodied in a separate, new
order.  Please submit these decisions to the RCRA Enforcement
Division Director for review prior to notifying the owner/operator
of the final decision.  We will be issuing guidance on the
selection of corrective measures in the future.

     When the 21 day consultation is in effect, the Region should
submit the order or corrective measures decision to Headquarters
for review.  If Headquarters does not raise issues during the
consultation period, then agreement can be assumed and the Region
may issue the order or decision.  Should there be a disagree-
ment and Headquarters and Regional staff cannot come to resolu-
tion,  then I will discuss the outstanding issues directly with
you.

     I anticipate waiving Headquarters' consultation for the
categories mentioned above as further program experience is
gained.

Attachment

-------
                                                        9940^3


         CRITERIA FOR ELIMINATING HQ's CONCURRENCE ON RCRA
                        3008(h) ORDERS
 The  factors  to be considered in making the determination to
 eliminate HQ's concurrence oh Section 3008(h) orders
 will be related to quantity and quality of the orders submitted
 to Headquarters for concurrence.  Regarding quantity, Regions
 must develop, obtain Headquarter's concurrence, and issue four
 (4) quality  consent orders.  Waiver of Headquarter's concurrence
 on unilaterals will require the preparation and issuance of
 four quality orders (consent plus unilateral) of which at
 least two must be unilaterals.  Regarding quality. Headquarters
 will consider the underlying technical development,  findings
 of fact, the general procedural and legal provisions and the
 relief being sought (particularly the scopes of work).  The
 Corrective Action Plan (CAP), the .3008(h) model order and the
 Interim Measures Guidance provide the points of reference for
 these criteria.

 Specifically, as shown in the model order, the findings of fact
 should clearly define the release and identify the potential
 threat to human health or the environment.  Also, as shown in
 the model order, the general procedural and legal provisions
 should: provide for record keeping and reporting; identify
 points at which EPA will review and approve/disapprove plans,
 activities,  etc.; specify conflict resolution procedures for
 plan approval, or modification; provide for EPA's access to the
 facility while activity is being conducted;  specify penalties
 for failure  to comply with the 3008(h) order; and address
 public involvement.

As discussed in the Corrective Action Plan,  the scopes of work
 for the relief should: ensure that any interim measures identify
 all tasks necessary to mitigate any immediate threat to human
health and the environment; set forth clearly and in detail
 the scope and elements of the RCRA Facility Investigation (RPI)
work plans,  site investigations, data (including sampling)
 collection and analysis,  reports, etc.; ensure that the
 Corrective Measures Study (CMS) provides for an initial screening
 and evaluation of alternative(s), draft CMS, etc; and ensure that
 Corrective Measures Implementation (CMI) provides for the
 implementation of the selected corrective actions in sufficient
detail.

-------