3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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                             JUN - 5 1987
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MEMORANDUM


SUBJECT:  Entry and Continued Access Under  CERCLA
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FROM:     Thomas L. Adams, Jr.
          Assistant Administrator

TO:       Regional Administrators  l-K
          Regional Counsels  I-X


I.  INTRODUCTION

 '--   This memorandum sets forth EPA's policy on entry and
continued access to facilities by  EPA officers, employees, and
representatives for the purposes of response and civil enforce-
ment activities under CERCLA. _!_/   In short, the policy recommends
that EPA should, in the first instance, seek to obtain access
through consent.  Entry on consent is preferable across the full
range of onsite activities.  If consent is denied, EPA should
use judicial process or an administrative order to gain access.
The appropriate type of judicial process varies depending on
the nature of the onsite activity.  When entry is needed for
short-term and non-intrusive activities, an ex parte, judicial
warrant should be sought.  In situations invoTving long-term or
intrusive access, EPA should generally file suit to obtain a
court order.

     The memorandum's first section addresses the recently amended
access provision in CERCLA.  The memorandum then sets forth EPA
policy on obtaining entry and the procedures which should be
used to implement this policy, including separate discussions on
consent, warrants,  court orders, and administrative orders.
I/  This policy does not address information requests under
    Section 104(e)(2).

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II.   STATUTORY AUTHORITY

     EPA needs access Co private  property Co  conduce  investiga-
cions,  studies, and cleanups.   The  Superfund  Amendments  and
Reauchorizacion Ace of 1986  (SARA)  explicicLy grants  EPA 2/ the
authority to enter property  for each  of  these purposes.   Section
104(e)(1) provides that entry  is  permitted  for "determining the
need for response, or choosing  or taking  any  response  action
under chis title,  or otherwise  enforcing  the  provisions  of this
title."

     SARA also establishes  a standard for when access  may be
sought  and defines what property  may  be  entered.   EPA  may exercise
its  entry authority "if there  is  a  reasonable basis  to believe
there may be a release or threat  of a release of  a hazardous
substance or pollutant or contaminant."   §  104(e)(1).   SARA,
however, does not  require chat  there  be  a release or  threatened
release on the property co  be  entered. ^/  Places and  properties
subject to entry under Section  104(e)  include any place  any
hazardous substance may be  or  has been generated, stored, treated,
disposed of, or transported  from; any place a hazardous  substance
has  or  may have been released;  any  place  which is or may be
threacened by Che  release of a  hazardous  substance; or any place
where entry is needed to determine  Che need for response or the
appropriate response, or to  effectuate a  response action under
CERCLA.  § 104(e)(3).  EPA  is  also  authorized to  enter any place
or property adjacent to the  places  and properties described in
Che  previous sentence.  § 104(e)(1).

     EPA is granted explicit power  to enforce its entry  authority
in Section 104(e)(5).  Under that provision EPA may either issue
an administrative  order directing compliance  with an entry request
or proceed immediately to federal district  court  for  injunctive
relief.  Orders may be issued  where consent to entry  is  denied.
Prior to the effective date  of  the  order, EPA must provide such
notice  and opportunity for  consultation  as  is reasonably appro-
priate under the circumstances.  If EPA  issues an order, the
order can be enforced in court.  Where there  is a "reasonable
basis to believe there may  be  a release  or  threat of  a release of
a hazardous substance or pollutant  or contaminant," courts are
instructed to enforce an EPA request  or  order unless  the EPA
2_/  Although CERCLA and SARA confer  authority  upon  the  President
    that authority has been  delegated  to  the EPA  Administrator.
Exec. Order No. 12580, § 2(g)  and  (i),  52 Fed.  Reg.  1923  (1987).

3_/  The House Energy and Commerce  bill  at one  point  contained
    this limitation.  H.R.  Rep.  No.  99-253  Part 1,  99th Cong,.  1st
Sess., 158 (1985).  This limitation, however,  was dropped  prior  to
introduction of the bill for floor debate.  See H.R.  2817,  99th
Cong., 1st Sess., 131  Cong.  Rec. H10857 (December 4,  1985).

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                                                           9829.2

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"demand for entry or inspection is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law."
§ 104(e)(5).  The legislative history makes clear that courts
should enforce an EPA demand or order for entry if EPA's finding
that there  is a reasonable basis to believe there may be a release
or threat of release is not arbitrary and capricious.  132 Cong.
Rec. S14929 (October 3, 1986) (Statement of Sen. Thurmond);  132
Cong. Rec. H9582 (October 8, 1986) (Statement of Rep. Glickman).
See United States v. Standard Equipment, Inc.,  No.  C83-252M (W.D.
Wash"! November 3, 1986) .  In addition, a penalty not to exceed
$25,000/day may be assessed by the court for failure to comply
with an EPA order or the provisions of subsection (e).

     Finally, Section 104(e)(6)  contains a savings  provision
which preserves EPA's power to secure access in "any lawful
manner."  This broad savings provision is significant coming
in the wake of the Supreme Court's holding that:

          When Congress invests  an agency with  enforce-
          ment and investigatory authority, it  is not
          necessary to identify explicitly each and every
          technique that may be used in the course of
          executing the statutory mission.

          . . . Regulatory or enforcement authority
          generally carries with it all the modes of
          inquiry and investigation traditionally employed
          or useful to execute the authority granted.

Dow Chemical Co. v. United States, 90 L.Ed. 2d  226, 234 (1986). 4/
One lawful means of gaining access covered by this  paragraph is
use of judicially-issued warrants.  See S. Rep. No. 99-11, 99th
Cong. 1st Sess. 26 (1985).

     In numerous instances prior to the passage of SARA,  EPA
obtained court rulings affirming its authority  to enter property
to conduct  CERCLA activities. 5/  Following enactment of SARA,
4/ See also. Mobil Oil Corp. v. EPA, 716 F.2d 1187,  1189 (7th
   CTr. 1983), cert, denied, 466 U.S. 980 (1984)  (EPA authority
to sample effluent under Section 308 of the Clean Water Act
broadly construed); CEDs,  Inc. v. EPA, 745 F.2d 1092 (7th Cir.
1984), cert, denied. 471 U.S. 1015"TT985).

5_/ United States v. Pepper Steel and Alloy. Inc.. No. 83-1717-
   CIV-EPS  (S.D. Fla. October 10. 1986); Bunker Limited Partnership
v. United States, No. 85-3133 (D. Idaho October 21,  1985);  United
States v. Coiemin Evans Wood Preserving Co., No.  85-211-CIV-J-16
(M.D. Fla.  June  10. 1985); United States v. Baird &  McGuire
Co.  No. 83-3002-Y (U. Mass. May 2,  1985); United States v. United
Nuclear Corp.. 22 ERC 1791, 15 ELR 20443 (D.N.M.  April 18,  1985) .

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several courts have ordered  siteowners  Co permit EPA access.
United States v.  Long.  No.  C-1-37-L67  (S.D.  Ohio May 13, 1987);
United States v.  Dickerson,  No.  34-76-VAL (M.D.  Ga.  May 4.  1987);
United States v.  Standard~Equipment,  Inc.,  No.  C83-252M (W.D.
Wash.  Nov. 3~7 19867".   Further,  the one  adverse  ruling on EPA's
right of access has been vacated by  the Supreme Court.   Outboard
Marine Corp.  v.  Thomas,  773  F.2d 883  (7th Cir.  1985), vacated,
93 L.  Ed. 2d  695  (1986).

III.   EPA ACCESS  POLICY

     EPA needs access to sites  for  several  types of  activities,
including:

      0 preliminary site investigations;

      0 removal actions;

      0 RI/FSs;  and

      0 remedial  actions.

Within each of these categories, the  scope  of the work and  the
time needed to complete that work may .vary  substantially.   This
memorandum sets Agency policy on what means  should be used  to
gain access over  the range  of these  various  activities.

     EPA may  seek access through consent, warrant, administrative
order, or court order.   Consent  is  the  preferred means  of gaining
access for all activities  because it  is consistent with EPA policy
of seeking voluntary cooperation from responsible parties and
the public.  In certain circumstances,  however,  the  Region  should
consider obtaining judicial  authorization or issuing an admini-
strative order in addition to obtaining consent.  For example,
where uncertainty exists whether a  siteowner will continue  to
permit access over an extended  period,  reliance on consent  alone
may result in a substantial  delay if  that consent is withdrawn.

     When consent is denied, EPA should seek judicial authori-
zation or should  issue an  administrative order.   If  the judicial
route is chosen,  EPA may seek an ejc  parte warrant or a court
order.  Warrants  are traditionally  granted  for  short-term entries.
Generally, warrants should  not  be used  when the EPA  access  will
involve long-term occupation or  highly  intrusive activities.
Clearly, warrants are appropriate for  preliminary site investiga-
tions.  On the other hand,  because  of  the long,  involved nature
of remedial actions, access  for  such  projects should be sought
through a request for a court order.   Neither removals  nor  RI/FSs,
however, can be rigidly matched  with  a  given judicial access
procedure.  Depending on che activities to  be undertaken and the
circumstances at the site,  either a  warrant or  a court order may
be appropriate.

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      In deciding whether Co use a warrant or a court order when
 access is needed for a removal or to conduct a RI/FS,  the follow-
 ing general principles should be considered.  First, if the
 activity will take longer than 60 days a court order normally is
 appropriate.   Second,  even if the activity will take less than 60
 days,  when the entry involves removal of large quantities of  soil
 or  destruction of permanent fixtures, a court order  may again be
 appropriate.   Finally, warrants should not be used  if  EPA action
 will substantially interfere with the operation of onsite business
 activities.   These issues must be resolved on a case-by-case  basis.

     If EPA needs to gain access for a responsible party who has
 agreed to undertake cleanup activities under an administrative
 order  or judicial decree, EPA may,  in appropriate circumstances,
 designate the responsible party as  EPA's authorized  representative
 solely for the purpose of access,  and exercise the authorities
 contained in  Section 104(e) on behalf of the responsible party.
 Such a procedure may only be used where the responsible party
 demonstrates  to EPA's  satisfaction  that it has made  best efforts
 to  obtain access.   A further condition on the use of this procedure
 is  that  the  responsible  party agree to indemnify and hold harmless
 EPA and  the  United States for all claims related to  injuries  and
"damages  caused by acts or omissions of the responsible  party.
 The responsible party  should also be advised that the expenses
 incurred by  the government  in gaining access  for the responsible
 party  are response costs  for which  the responsible party is liable.
 Before designating any responsible  party as  an authorized repre-
 sentative,  the Region  should consult with the Office of  Enforcement
 and Compliance Monitoring.

 IV.  ACCESS PROCEDURES

     A.   Entry on Consent

           1.  General Procedures

     The following procedures  should be observed in  seeking
 consent:

     Initial Contact.   Prior to  visiting a site, EPA  personnel £/
     should consider  contacting  the  siteowner  to determine  if
     consent will be  forthcoming.  EPA personnel should use  this
     opportunity to explain  EPA's  access authority, the  purpose
     for  which entry  is needed,  and  the activities which  will be
     conducted.
 6/   As used  in  this guidance,  the terra "EPA personnel" includes
     contractors  acting as  EPA's authorized representatives.

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    Arrival.  EPA personnel should arrive at  the site at a
    reasonable time of day  under the circumstances.   In most
    instances this will mean during  normal working hours.   When
    there is a demonstrable need to  enter a site at other times,
    however, arrival need not be limited  to this timeframe.
    Entry must be reasonable given the exigencies of the situation.

    Identification.  EPA personnel should show proper identifi-
    cation upon arrival.

    Request for Entry.   In  asking for consent,  EPA personnel
    should statethe purpose for which entry  is sought and
    describe the activities to be conducted.   EPA personnel
    should also present a date-stamped written request to the
    owner or person-in-charge.   A copy of this  request should
    be retained by EPA.  Consent to  entry must  be sought
    from the owner _7/  or the person-in-charge  at that time.

     If practicable under the circumstances,  consent to entry
should be memorialized in writing.   A sample  consent form is
attached.  Although oral consents are routinely approved by  the
courts, a signed consent form protects the Agency by serving as
a permanent record of  a transaction  which may  be raised as a
defense or in a claim  for damages many years  later.   If a site-
owner is unwilling to  sign-a consent form but  nonetheless  orally
agrees to allow access, EPA should document this oral consent by
a follow-up letter confirming the consent.

     Since EPA contractors  often are involved  in gaining access
in the first instance,  the  Regions should ensure that their
contractors are acquainted  with  these procedures.

           2.  Denial  of Entry

     If consent is denied,  EPA personnel  or contractors,  before
leaving, should attempt to  determine the  grounds for the denial.
EPA personnel, however, should not threaten the siteowner  with
penalties or other monetary liability or  make  any other remarks
which could be construed as threatening.   EPA  personnel may
explain EPA's statutory access authority,  the  grounds upon which
this authority may be  exercised,  and that the  authority may  be
enforced in court.
TV  If EPA's planned  site  activities will not have  a  physical
    effect on the property,  EPA  generally need  not  seek  consent
from the owner of leased property where  the  lessee  is in pos-
session.  The proper  person  in those circumstances  is the lessee.
But where EPA entry will have a  substantial  physical  effect  on
the property, both the lessee and the  property-owner  should  be
contacted since in this  instance  interests of both  will  be
involved.

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          3.  Condicions Upon Entry

     Persons on whose property EPA wishes to enter often attempt
to place conditions upon encry.  EPA personnel should not agree
to conditions which restrict or impede the manner or extent of an
inspection or response action, impose indemnity or compensatory
obligations on EPA, or operate as a release of liability.  The
imposition of conditions of this nature on entry snould be treated
as denial of consent and a warrant or order should be obtained.
See U.S. EPA, General Counsel Opinions, "Visitors' Release and
Hold Harmless Agreements as a Condition to Entry of EPA Employees
on Industrial Facilities," Gen'l and.Admin, at 125 (11/8/72).
If persons are concerned about confidentiality, they should be
made aware that business secrets are protected by the statute
and Agency regulations.  42 U.S.C. § 9604(e);  40 C.F.R. § 2.203(b).
h!PA personnel should enter into no further agreements regarding
confidentiality.

     B.  Warrants

          1. General Procedures

     To secure a warrant, the following procedures should be
observed:

     Contact Regional Counsel.  EPA personnel  should discuss
     with Regional Counsel the facts regarding the denial of
     consent or other factors justifying a warrant and the
     circumstances which give rise to the need for entry.

     Contact Department of Justice.  If after  consultation with
     Regional Counsel a decision is made to seek a warrant, the
     Regional Counsel must contact directly the Environmental
     Enforcement Section in the Land and Natural Resources Division
     at the Department of Justice. 8/  The person to call at
     the Department is the Assistant Chief in  the Environmental
     Enforcement Section assigned to the Region.  The Assistant
     Chief will then arrange, in a timely manner, for the matter
     to be handled by either an Environmental  Enforcement Section
     attorney or a U.S. Attorney.   The Region  must send to the
     Environmental Enforcement Section, by Magnafax or other
8y  This procedure is necessary to comply with internal
~   Department of Justice delegations of authority.   Referral
to a local U.S. Attorney's office is not sufficient for CERCLA
warrants.  The Environmental Enforcement Section of the Department
of Justice must approve all warrant applications.  (See Memorandum
from David T.  Buente, Jr. to All Environmental Enforcement
Attorneys, "Procedures for Authorizing Applications for Civil
Search Warrants Under CERCLA" (4/3/87) attached).

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                              - 8  -
     expedited  means,  a. drafc warrant applicacion  and a  short
     memorandum concisely  stating why the warrant  is needed.

     Prepare  Warrant Application.  The warrant application must
     containthe following:

          1)  a  statement of EPA's authority  to inspect;
             (see § II, supra)

          2)  a  clear  identification of the name  and location
             of the site and, if known,  the  name(s) of the
             owner and operator of the site;

          3)  a  statement explaining the  grounds  for a finding
             of a reasonable basis for entry (i.e., a reasonable
             basis to  believe that there may be  a  release or
             threatened release of a hazardous substance or
             pollutant or  contaminant) and the purpose for entry
             (i.e., determining the need for response, or choosing
             or taking any response action,  or otherwise enforcing
             CERCLA);

          4)  affidavits supporting the asserted  reasonable basis
             for entry and describing any attempts  to gain access
             on consent,  if applicable;  and

          5)  a  specific description of the extent,  nature, and
             timing of the inspection;

     Following  preparation of the warrant application, the
     Justice  Department attorney will file the application with
     the local  U.S. Magistrate.

     EPA may  ask the  Justice Department  attorney to seek the
assistance of the United  States Marshals Service in executing the
warrant where EPA perceives a danger  to  the  personnel executing
the warrant or  where  there is the possibility that  evidence will
be destroyed.

          2.  Reasonable  Basis for Entry

     A warrant  for access  on a civil matter  may  be  obtained upon
a showing of  a reasonable  basis  for entry.   This reasonable
basis may be  established  either by presenting specific evidence
relating to the facility  to be entered or by demonstrating that
the entry is  part of  a neutral administrative inspection plan.

     A specific evidence  standard  is  incorporated  in SARA as  a
condition on  EPA's exercise of its access authority:  EPA must
have "a reasonable basis  to believe there may be a release or

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chreat of a release of a hazardous substance or pollutant or
contaminant."  § 104(e)(1).  SARA's express specific evidence
standard is consistent with how courts have formulated the
specific evidence test in the absence of statutory guidance.
E.g.  West Point-Pepperell, Inc. v. Donovan,  689 F. 2d 950,  958
(1fth Cir.1982)(there must be a "showing of specific evidence
sufficient to support a reasonable suspicion  of a violation").

     In drafting a warrant application, conclusory allegations
regarding the specific evidence standard under subsection 104(e)
will not suffice.  Courts generally have refused to approve
warrants where the application contains mere  boilerplate asser-
tions of statutory violations.  Warrant applications have been
granted, on the other hand, where the application contained
detailed attestations by government officials or third-party
complaints which have some indicia of reliability.   Ideally,
EPA warrant applications should contain an affidavit of a person
who has personally observed conditions which  indicate that there
may be a release or threat of a release of a hazardous substance.
If they are available, sampling results, although not required,
should also be attached.  Warrant applications based on citizen,
employee, or competitor complaints should include details that
establish the complainant's credibility. 9_/

     C.  Court Orders

     The provisions in CERCLA authorizing EPA access may be
enforced by court order.  To obtain a court order for entry, the
Region should follow the normal referral process.  If only access
is required, the referral package can obviously be much abbrev-
iated.  If ciraing is critical, EPA HQ will move expeditiously
and will refer the case orally if necessary.   The Regions, how-
ever, should attempt to anticipate the sites  at which access may
prove problematic and should allow sufficient lead time for  the
referral process and the operation of the courts.  The Regions
should also not enter lengthy negotiations with landowners over
access.  EPA and DOJ are prepared to litigate aggressively to
establish EPA's right of access.
9_/  If information gathered in a civil investigation suggests
~   that a criminal violation may have occurred, EPA personnel
should consult  the guidance on parallel proceedings.  (Memorandum
from Courtney Price to Assistant Administrators et al.,  "Policy
and Procedures  on Parallel Proceedings at the Environmental
Protection Agency" (1/23/84)).  Use of CERCLA's information-
gathering authority in criminal investigations is addressed in
separate guidance.  (Memorandum from Courtney M. Price  to Assistant
Administrators  et al., "The Use of Administrative Discovery
Devices in the  Development of Cases Assigned to the Office of
Criminal Investigations" (2/16/84)).

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     Prior to seeking a court  order, EPA should request access,
generally in writing, and assemble the record related to access.
The showing necessary to obtain a court order is the same as for
obtaining a warrant:   EPA must show a reasonable basis to believe
that there may be a release or a threat of a release of a hazardous
substance or pollutant or contaminant.  An EPA finding on whether
there is reason to believe a release has occurred or is about to
occur must be reviewed on the  arbitrary and capricious standard.
§ 104(e)(5) (B)(i).  If the matter is not already in court, EPA
must file a complaint seeking  injunctive and declaratory relief.
Simultaneous to filing the complaint, EPA may,  if necessary,
file a motion, supported by affidavits documenting the release
or threatened release, requesting an immediate order in aid of
access.  If the matter is already in litigation, EPA may proceed
by motion to seek an  order granting access. j_0/

     In a memorandum  supporting EPA's request for relief it
should be made clear  that by invoking judicial process, EPA is
not inviting judicial review of its decision to undertake response
action or of any administrative dete rninations  with regard to the
response action.  Section 113(h)  of SARA bars judicial review
of removal or remedial action  except in five enumerated circum-
stances.  A judicial  action to compel access is not one of the
exceptions.  Statements on the floor of the House and the Senate
confirm that EPA enforcement of its access authority does not
provide an opportunity for judicial review of response decisions.
Senator Thurmond, chairman of  the Judiciary Committee, remarked
that when EPA requests a court to compel access "there is no
jurisdiction at that  time to review any response action . . .
1O/  Parenthetically, it should be noted  that the broad equitable
     power granted to courts  in Section 106  can also  be relied
on to obtain a court order.   An additional source of  authority
for courts in this regard is  the All Writs Act, 28 U.S.C.  §  1651.
The Act authorizes federal courts to "issue  all writs necessary
or appropriate in aid of their respective jurisdictions .  .  .  ."
28 U.S.C. S 1651.  This authority "extends under appropriate
circumstances, to persons who, though not parties to  the original
action or engaged in wrongdoing are in a  position to  frustrate
the implementation of a court order .  .  .  ." -United States v.  New
York Telephone Co.,  434 U.S.  159, 174 (1977).Thus,  the All WtTEs
Act may prove useful as a means of compelling persons not  a  party
to a consent decree to cooperate with EPA and other settling
parties in execution of the  decree.   The  use of the All Writs
Act, however, may be limited  in light of  the Supreme  Court's
interpretation of the Act in  Pennsylvania Bureau of Correction v.
United States Marshal Service,  88 L.  Ed.  2d 189  (1985).
rr

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                              -11-
[T]he court may only review whether the Agency's conclusion that
there is a release or threatened release of hazardous substances
is arbitrary or capricious."  132 Cong. Rec. S14929 (October 3,
1986) (Statement of Sen. Thurmond); 132 Cong. Rec. 119582
(October 8, 1986)  (Statement of Rep. Glickman);  see United States
v. Standard Equipment, Inc.. No. C83-252M (W.D.  ftalh. Nov. 3,  1986)

     D.  Administrative Orders

     If a siteowner denies an EPA request for access, EPA may
issue an adminstrative order directing compliance with the
request.  § 104(e)(5)(A).  Each administrative order must include
a finding by the Regional Administrator that there exists a
reasonable belief that there may be a release or threat of release
of a hazardous substance and a description of the purpose for  the
entry and of the activities to be conducted and  their probable
duration.  The order should indicate the nature  of the prior
request for access.  Further, the order should advise the re-
spondent that the administrative record upon which the order was
issued is available for review and that an EPA officer or employee
will be available to confer with respondent prior to the effective
date of the order.  The length of the time period during which
such a conferences may be requested should be reasonable under
the circumstances.  In deciding what is a reasonable time period,
consideration should be given to the interference access will  cause
with onsite operations, the threat to human health and the environ-
ment posed by the site, and the extent of prior  contacts with  the
respondent.  The order should advise the respondent that penalties
of up to $25,000 per day may be assessed by a court against any
party who unreasonably fails to comply with an order.  § 104(e)(5).
Following the time period for the conference and any conference,
the issuing official should send a document to the respondent
summarizing any conference, EPA's resolution of  any objections,
and stating the effective date of the order.

     If, following issuance of an administrative order, the site-
owner continues to refuse access to EPA, the order may be enforced
in federal court.   EPA should not use self-help  to execute orders.
Courts are required to enforce administrative orders where there
is a reasonable basis to believe that there may  be a release or
threat of a release of a hazardous substance.  EPA's determination
in this regard must be upheld unless it is arbitrary and capricious,
§ 1 04(e)(5)(B)(i).  EPA will seek penalties from those parties who
unreasonably fail to comply with orders.

     All administrative orders for access must be concurred on by
the Office of Enforcement and Compliance Monitoring prior to
issuance.

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DISCLAIMER
     The policies  and  procedures established in this document are
intended solely  for  the  guidance of government 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 time without public  notice.


Attachments

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Memorandum
                                                9829,2
Subjiet
     Procedures for Authorizing Application
     for Civil Search Warrants Under CERCLA
               April 3, 1987
To
     All EES Attorneys
From
                                                  Er vironmental
                                                    ment Section
             Under § 104(e)  of CERCLA,  as amended by SARA,  the
   United  States may seek access by warrant,  administrative  order,
   or court order.  If access is obtained by administrative order,
   the appropriate documents are issued by relevant client  agencies.
   If access is to be obtained by court order,  then the  Assistant
   Attorney General of the Land and Natural Resources Division must
   approve the complaint,  upon referral from the relevant client
   agency according to ordinary procedures.  For access  to  be sought
   through application on a civil CERCLA warrant,1 the instant
   memorandum will confirm the procedures to be used by  the
   Department of Justice.

             Under 15.320-A-2 of the U.S. Attorney's Manual,
   application for warrant under CERCLA may not be handled
   unilaterally by the U.S.  Attorneys.   Applications for such
   warrants must be coordinated through the Environmental
   Enforcement Section.

             Clearance through the Environmental Enforcement  Section
   is important for a variety of reasons.  First,  the nature  of the
   governmental activities involved under CERCLA civil warrants may
   be much broader and last considerably longer than an  inspection
   under the other federal environmental regulatory statutes.
   Typically the latter require only a  few days or weeks to conduct
   routine environmental sampling.  Under CERCLA,  access may  be
   sought under a warrant for not only  sampling, but even simple
        1  The memorandum does not cover procedures  for seeking a
   criminal search warrant where a CERCLA violation  may be
   involved.  All such matters are to be referred to the Director,
   Environmental Crimes Unit,  EES.

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                                                     9829,2
                              - 2 -
removal-type activity, e.g., security/fencing, limited drum
removal.  The greater relative complexity of,the governmental
activity involved can be expected to provoke more challenges to
CERCLA civil warrants than those under other statutes and the
issues raised by CERCLA warrants may be much more complex.
Second, this is a relatively new and vital area of the law.  We
must ensure that maximum efforts are made to develop this
critical area of the law in an excellent manner.  EES lawyers
must make all reasonable efforts to ensure that exercises of the
civil warrant authority under CERCLA will be vindicated by the
federal courts, through proper presentation of facts and legal
arguments by Departmental attorneys with experience in this area.
Finally, since our experience has shown that judicial challenges
to civil CERCLA warrants tend to move very rapidly, sometimes on
an emergency motion basis,  EES needs to work closely with client
agencies on these matters so that the Division's Appellate
Section is advised and prepared with sufficient lead time to
expeditiously address appellate proceedings.

          Coordinating these warrant applications through EES
must be done on an expedited basis so that client agencies'
program objectives are achieved.   Moreover,  our resources must
not be consumed by duplicative work.  Balancing the needs for
careful warrant application preparations with  that for
expeditious handling of these matters,  we will use the following
procedures:

          1.  The client agency will telephonically notify the
relevant EES Assistant Chief or Senior Lawyer  when the Agency
plans to seek a civil warrant.

          2.  The client agency will follow-up the request by
expeditiously transmitting a short memorandum  concisely
explaining why the warrant is needed with a  draft copy of the
warrant application and supporting affidavits.

          3.  Upon receipt of the telephonic notification or
written request, whichever first occurs,  the EES Assistant Chief
or Sr. Lawyer will arrange for either an EES staff attorney or an
AUSA to handle the review and prosecution of the application.
Unless a dispute develops between EES/AUSA personnel  and  the
client agency,  the EES Assistant Chief or Sr.  Lawyer  may  approve
the application.  If such a dispute develops,  it must be  brought
to the attention of the Chief or Deputy Chief,  EES for
resolution.

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                                                     9829,2

                              - 3 -


          4.  Handling of these matters is to be afforded
priority on our docket.  Moreover, the Chief or Assistant Chief
of the Appellate Section shall be advised of each application
request by the EES Assistant Chief or Sr. Lawyer as soon as
possible after notification by the client agency,  so that
Appellate can be prepared to handle expeditiously appeal matters.

          5. All civil actions to enforce civil CERCLA warrants,
by way of application for civil contempt or other judicial
orders, shall be authorized in writing by the Assistant Attorney
General. Such actions shall be afforded highest priority on the
docket.

          For general advice/guidance on handling CERCLA civil
warrant matters, contact John Fleuchaus,  ORCM-Waste,  382-3109.
Attachment

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                                                        9829,2
                CONSENT FOR ACCESS TO PROPERTY
Name:
Address of Property:
     I consent to officers,  employees,  and authorized
representatives of the United  States  Environmental Protection
Agency (EPA)  entering and  having  continued access  to my
property for  the following purposes:

     [the taking of such soil,  water,  and  air samples as  may
      be determined to be  necessary;]

     [the sampling of any  solids  or  liquids  stored or disposed
      of on site;]

     [the drilling of holes  and installation of  monitoring wells
      for subsurface investigation;]

     [other actions related  to  the  investigation of surface or
      subsurface contamination;]

     [the taking of a response  action  including  .  . . .]

I realize that these actions by EPA are undertaken pursuant
to its response and enforcement responsibilities under the
Comprehensive Environmental  Response,  Compensation and Liability
Act (Superfund), 42 U.S.C. § 9601 et  seq.

     This written permission is given  by me  voluntarily with
knowlege of my right to refuse  and without threats or promises
of any kind.
    Date                                 Signature

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