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
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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
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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.
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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
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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.
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