Attachment VI
Issuance of Administrative Orders for Immediate
Removal Actions
2/21/R4
-------
a trxviKUNMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
F£5 2 I
SOLID MA5TI AND (M(HCCNC> »tS»CN$r
MEMORANDUM
SUBJECT: Issuance of Administrative Orders for Immediate Removal
'Actions
FROM: '\tee M. ThdWas
Assistant Administrator
TO: Regional Administrators, Regions I-x
Air & Waste Management Division Directors
Regions III, IV, VI, viz, VIII, X
Waste Management Division Directors, Regions I, v
Director, Office of Emergency and Remedial Response, Reg;on
Toxics and Waste Management Division Director, Region ix
Environmental Services Division Directors, Regions I-x
Regional Counsel, Regions I-x
i
This memorandum sets forth guidance on issuing Administrative
Orders for immediate removal actions under CERCLA. This guidance
should be.used in conjunction with the recently issued Guidance
Memorandum on Use and Issuance of Administrative Orders under
Section 106(a) of CERCLA dated September 8, 1983.
Since becoming the Assistant Administrator, OSWER, I have
sought to implement a "balanced" CERCLA program which uses both
the administrative and civil judicial enforcement provisions of
the Act--as well as the Fund—to secure clean up of hazardous
waste sites. One of my primary enforcement goals is to increase
the use of Administrative orders for immediate removals. Orders
are particularly useful in immediate removal situations, since
they can be issued quickly, can require discrete segments of wor<.
(e.g., surface cleanup) and carry the threat of additional damages
and penalties in the event of non-compliance.
We estimate that Administrative Orders may be appropriate for
a significant percentage of immediate removal situations. Increase:
resources will be provided to the Regions, and I expect the Regir-s
to devote resources to accomplishing this goal of increased
Administrative Orders for removals.
In addition, the Regions must develop a satisfactory
organizational structure if the Administrative Order program is t:
succeed. The organization of enforcement personnel varies among
the Regions. The"majority of the Regions keep their "remedial"
and "removal" personnel in different divisions. Since CERCLA
enforcement has (until now) concentrated heavily on remedial
sites, most regional technical enforcement personnel have been
assigned to the remedial response units (generally, the Air and
-------
-2-
Hazardous-Material Divisions). Personnel responsible for immediate
and planned removals have usually been assigned to the Environmental
Services Division which, as a general rule, has not been assigned
enforcement personnel.
Obviously, the ability of a Region to implement this new
policy requires both close coordination among the immediate
response staff and their colleagues in the technical enforcement
and regional counsel offices and an organizational structure
capable of developing and issuing quality orders. Regions that
do not currently dedicate technical enforcement staff to their
immediate removal program should assure that appropriate personnel
are in place in the technical enforcement office to implement this
policy and to handle the workload.
I. BACKGROUND
CERCLA identifies two types of response actions for which the
Fund can be used: removal actions and remedial actions. The
National Contingency Plan (NCP) further refines the former category
into "immediate" and "planned" removals and describes the process
and procedures for proceeding with these forms of response. (See
Federal Register 31180; July 16, 1982). Please refer to the attached
append:x for an outline of the relevant CERCLA and NCP provisions
regarding removal activity, Administrative Orders and enforcement.
Because of the large number of sites which pose a health hazard,
the Office of Emergency and Remedial Response (OERR) defines the
category of immediate removals according to the immediacy and
severity of the hazard to the public health or environment. These
categories establish a guide for the purpose of assessing the
length of time within which the Agency must respond to the event.
Agency response to situations which require immediate response
(e.g., threats of fire, explosion or spills) normally takes place
in a matter of hours or one or two days at the most; Agency response
to other situations (e.g., rusting barrels that have not yet
begun to leak, holding ponds that may overflow with the advent of
the rainy season) normally takes place during a period which may
range from a week to a month.
This guidance is most applicable to the latter situation; i.e.,
the Regions should consider issuing Administrative Orders in situations
when there is at least one week between the time the On-Scene
Coordinator (OSC) determines that an immediate removal is warranted
and the time that actual on-site response must begin.
Administrative Orders are a useful enforcement tool in these
types of immediate removals situations, for the following reasons.
First, they encourage private party response, particularly since it
-------
-3-
is OSWER policy to meet, if at all possible, with responsible parties
after the Order is issued if a meeting is requested. The results
of an OWPE analysis of 49 completed immediate removals indicate
that the elapsed time between the request for funds and the start
of site response ranged from eight days to more than three weeks
for 24 of the sites. This clearly indicates that there is time to
issue Administrative Orders in appropriate situations, and the
process described in this memorandum can be implemented in as
little time as a week, if necessary. Second, removals require
discrete units of work (e.g., barrel or contaminated soil removal)
which makes responsible party compliance and Agency compliance
monitoring easier. Third, the costs of immediate removals are
generally moderate; this increases the probability of private
party compliance.
In the event of non-compliance with an Administrative Order,
the Agency is prepared to quickly initiate a Fund-financed response
and seek fines/treble damages from the responsible parties. Since
the treble damages will be based on the Fund dollars expended, these
situations are particularly amenable to establishing treble damage
claims, whi.c-h, the Agency will seek to recover in its $107
cost recovery actions. (The average obligation for 110 prior
immediate removals undertaken by the Agency was approximately
$275,000). Issuance of Administrative Orders for these situations
also may improve the equitable position of the Agency in subsequent
cost recovery cases.
XI. CRITERIA FOR ISSUING ADMINISTRATIVE ORDERS
First, of course, the Agency must meet the legal threshold
that an imminent and substantial endangerment to public health or the
environment may exist.* Information which can be used and evaluated
by the OSC or his supervisor to make this determination include:
1. Notification in accordance with CERCLA S103 (a), (b) or (c)
2. Investigations by government authorities conducted
pursuant to CERCLA 5104 (e) or other statutory authority.
*The Agency must be able to properly document and justify both its
assertion that an immediate and significant risk of harm to human
life or health or to the environment exists and its choice of the
ultimate response action at a site in order to be able to oppose a
challenge to the Order and to successfully litigate any subsequent
cost recovery action. Adequate documentation consists of photographs,
samples, monitoring or other documented site analysis. The Agency
should follow chain of custody procedures to maintain the integrity
of samples taken at the s:te. Please refer to the Cost Recovery
Guidance, issued August 26, 1983 for more detailed guidance. The
Revised Superfund Removal Guidance to be issued in late February
1984 will also provide additional guidance on immediate removal
assessments.
-------
-4-
3. .Notification of a release by a federal or state permit
holder when required by the permit.
4. Inventory efforts or random/incidental observation by
government agencies or the public.
If the facts reach the legal thresholds of CERCLA §106,
several policy criteria for deciding whether to issue an Order
for an immediate removal should be considered. The first of
these is the amount of time available before site response must
begin. This determination will usually be made by the OSC. An
Order may be appropriate if there is a minimum of one week available
for issuing the Order and meeting with the recipients (see
further below) between the time of the decision to seek funds
for the immediate removal and the initiation of on-site response.
(Of course if an order can be issued-in less than a week the
Regions are not bound by the "one week minimum". However, the
Regions should always attempt to have 48 - 72 hours available
for the recipients to request and conduct a conference.)
A second policy criterion is the number of potential reci-
pients of the Order and their financial viability. There should
be a 'manageable" number of responsible parties and they should
be collectively capable of undertaking site response. The Regions
will use their best judgement to decide what constitutes a
"manageable" number of responsible parties and assess the capabUi;
of the parties to undertake the response for any individual
immediate removal situation. (For a more lengthy discussion of
criteria to consider when issuing an Administrative Order, please
refer to the Administrative Order guidance.) When there is a
large number of potentially responsible parties, Orders need not
be issued to all of the parties. * In this type of situation the
Region should issue the Orders only to those parties most likely
to comply. The Region, however, is hot precluded from issuing
Orders to all the parties if it so desires.
These criteria are to be used as general guidelines for deter-
mining whether an Administrative Order should be issued for an
immediate removal. The varying factual circumstances presented
in any potential removal action mandate that each Region conduct
this necessary factual analysis to decide the appropriateness of
an Order.
III. PROCESS FOR ISSUING ADMINISTRATIVE ORDERS
The timely development and issuance of Administrative Orders
for immediate removals will require effective coordination among
the OSC, technical enforcement personnel and the legal counsel
in both the Regions and Headquarters. OSWER will not dictate how
the Regions must organize or adjust personnel in order to
accomplish this task, but it will expect the Regions to have a
system in place which is capable of implementing an administrative^
order program for immediate removals.
-------
-5-
The procedures for developing and issuing orders follow:
The decision by the OSC or his superior to request funds for
•n immediate removal also triggers the process for deciding whether
to issue an Administrative Order.
The OSC will inform the technical enforcement branch (or other
appropriate enforcement personnel if no separate branch exists)
and the Regional Counsel that a request for a Fund-financed immedi-
ate removal is being developed. Appropriate personnel in OERR and
OWPE should also be informed of this action. While the OSC and his
staff prepare the 10-point document,2 technical enforcement personnel
and the Regional Counsel should begin to identify responsible
parties and assess their financial ability to conduct site cleanup.
The OSC or the Regional Counsel will attempt to orally contact
(with written follow-up) potentially responsible parties in order
to secure private-party response in lieu of the Fund. While previous
Agency policy was to proceed with Fund-financed response if the
responsible parties refused to act, the Agency will now issue
administrative orders in appropriate circumstances before initiating
Fund action, so long as the site does not pose an unreasonable
risk of harm to the public health, welfare or the environment.
Regardless of whether a responsible party agrees or not to
undertake the removal, development of the 10-point document should
proceed as usual. However, the OSC and technical enforcement staff
(in consultation with the Regional Counsel) shall apply the criteria
outlined in Part A (above) to recommend to the Regional Administrator
whether to issue an Administrative Order. The decision to issue
the order rests with the Regional*Administrator, subject to the
current delegations.
If the Regional Administrator decides to issue an Administra-
tive Order, the Order will be drafted by technical enforcement
personnel with the advice of the Regional Counsel. The technical
information contained in the 10-point document will normally
provide the basis for the Order's 'Findings of Fact" while the
Agency's intended response actions will serve as the remedy the
recipient is required to implement.
^Requests for less than 5250,000 can be approved by the Regional
Administrator while requests for more than $250,000 require the
approval of OERR. (It is anticipated that within the month, the
Regional Administrators will be delegated the authority to obligat
up to $1 million for removal actions.) The ten point document
itself must justify its cost estimates and be consistent with the
NCP. With the issuance of the Revised Superfund Removal Guidance
the 10 point document will become an Action Memorandum.
-------
-6-
Since-Administrative Orders will normally be issued in situa-
tions in which site response is not required for at least one
week, OSWER policy is to provide recipients when possible an
opportunity to meet with Agency personnel to discuss the terms of
the Order and the means for compliance. Therefore, the Order
should include the following provisions:3
1. A statement of the imminent and substantial danger
pursuant to $106 of CERCLA and the risk of harm under
$300.65 of the NCP.
2. A statement of the authority of the issuing official
(normally the Regional Administrator) to issue the
Order and why the recipient is liable urtder $107.
3. The steps the recipient must take to comply with the
order, (following the provisions of the
ten-point document in order to be as specific as
possible) .
4. A mandatory timetable for performing and completing
the response. (The timetable should include at least
one short term interim deadline so the Agency will have
the aoility if necessary, to demonstrate non-compliance
• ** before the project completion date.)
5.-A provision informing the recipient that his duty to o&e
the terms of the order takes effect 72 hours after he
receives the order.
6. A provision informing the recipient that he may oralj
contact the Agency to request a conference on the
Order. The recipient must follow up his oral request
in wr it ing .
7. A provision specifying a date certain by which responses
(either oral or written) to the Order must be received.
8. A provision which states that EPA reserves the right
to undertake the action if emergency circumstances
dictate such action and that such action in no way
relieves the parties of responsibility for the costs
of such actions.
9. A provision which requires: proper chain of custody
procedures to be followed for any testing and sampl:-;
adequate recordkeeping of activities (so records ma. :-
used as evidence in any future enforcement case),
cooperation from employees of any contractor who e-.;3;-?
. in site activity, and availability of such employees
to the U.S. in preparation and trial of a subsequent
enforcement case.
•iRefer to the general Administrative Order Guidance for examples
of model orders and conference procedures.
-------
-7-
Under a separate delegations memorandum to the Regions, the
concurrence requirement will be waived for all Administrative
Orders for immediate removals with obligations of $1,000,000 or
less. Within two weeks of issuance of the Order, the Regions are
to send a copy of the final Order to OWPE.
As a matter of policy, in order to increase the likelihood of
compliance, the Agency encourages the convening of a conference
with the recipients of an Administrative Order. Since
Administrative Orders will generally be issued for immediate removal
situations which do not require response in less than one week,
the Agency will normally attempt to hold a meeting with the recipient,
if requested by the recipient. The conference should be
convened on an expedited basis (e.g., within 72 hours after the
Order is issued) if the recipient orally requests the conference.
However, the Agency retains the right to "waive" a conference
if immediate response is warranted because of deteriorating conditions
at the site. The Regional Administrator shall have the authority
to decide whether to eliminate the conference prior to or following
the issuance of the Administrative Order. If the Regional Administrat;
waives the opportunity for a personal conference, a regional
representative, must at least give the parties an opportunity to
be heard by telephone before the effective date of the Order. In
general, conferences concerning removal actions should be used to
clarify the requirements of the Order rather than as an opportunity
to negotiate the requirements.
The Agency must create a good administrative record of its
meetings with the recipient of an Order for either enforcement of
the Order or cost recovery after a Fund-financed cleanup. The
Agency participants should prepare a written summary of the
conference containing:
1. The date and participants.
2. A summary of the significant issues raised and arguments/
data used by the recipient to contest the Order.
3. The result of the conference (e.g. agreements reached
with the recipient, indication from the recipient of
an unwillingness to comply with the Order)
The presiding official, (designated by the Regional
Administrator) must also prepare a statement which addresses any
significant arguments raised by the recipient and recommends whether
any nodifications to the Order are warranted. (See the September
8, 1983 Administrative Order Guidance for a complete discussion of
the procedures and "ground rules" for conducting the conference
and the time frames for holding them.)
-------
-8-
If the recipient agrees to undertake the stipulated response
measures,_the agreement may be in the form of a Consent Order. The
OSC will monitor compliance with the Order and recommend additional
enforcement action if the terms of the Consent Order are breachei.
If the recipient does not agree to undertake the measures contained
in the Order, the Agency will generally not refer a case to the
Department of Justice to force compliance because of the time
constraints presented by the emergency. Rather, the Fund will be
used for site response and the recipient(s) will be sued for cost
recovery—including punitive damages in appropriate cases.
IV. USE OF THE FUND WHILE THE ADMINISTRATIVE ORDER IS BEING ISSUED
Normally, once an Order has been deemed appropriate for an
immediate removal situation, the CERCLA Fund shall not be.used to
undertake a federally-funded immediate removal during the time
period in which the Agency develops the Order, issues it to the
responsible party, and conducts the conference.
However, if site conditions deteriorate-- presenting a corre-
sponding increase in the threat that the site presents-- the Fund can
be used for response while the Administrative Order process continues
In such instances, the Regional Administrator can approve the use
of Funds below S250K and request the Assistant Administrator, OSWER,
to release funds if the response work will be greater than S250K.4
The Administrative Order process should continue since the parties
may undertake site response at the next convenient break in activity
Thus, if there are deteriorating conditions at the site, the
OSC should continue all steps necessary for undertaking a Fund-
financed response while the Order is being developed. The 10-point
document should be prepared and receive the concurrence of all
officials up through the Regional Administrator or the Director,
OERR.
However, no actual obligation of Funds for site response will
normally occur until after the Order has been issued and the con-
ference has been held. Since the Order will only be issued in
situations where an immediate response can be delayed, there will
normally be time to see the Administrative Order process through
to conclusion. The conference must be held within the time perioi
•pecified in the Order (which will correspond to the time the
Agency has before the response activity needs to begin), since
''if deteriorating conditions require the Fund to respond while
the Order is still being issued, OSWER assumes that the Fund wii
take all response actions necessary at the site (e.g., remove a.
barrels, not merely those that may be about to leak).
-------
the timing of the obligation will vary according to the •stimated
time needed to mobilize equipment and personnel, the "OSC should
work closely with the technical enforcement and Regional Counsel
staff during the drafting of the Order to assure that the time
period established for issuing the Order is synchronized with the
time requirements for site response.
If the conference does not result in private party response—or
if changing conditions at the site require accelerated response—the
Fund-financed immediate removal will take place. If Fund-financed
activity does begin, the Order may be written to require the potential
responsible parties to undertake site activity at the next convenient
break point in activity. If the parties still fail to undertake
the site response activity, enforcement efforts will emphasize cost
recovery with the additional imposition of fines/penalties as
appropriate.
V. COST RECOVERY
The Agency will normally not initiate a civil action in the
event of non*c.gropliance with an Order but instead will seek to
recover costs and damages after a Fund-financed response. Therefore,
while enforcement personnel are carrying out the Administrative
Order process, they should also be aware of the requirements for a
successful cost recovery action. They must be able to document
the following factors (some of which are the same ones necessary
for the issuance of the Administrative Order itself).
1. The need for the immediate removal (evidence of an imminent
and substantial endangerment or threat of endangerment
to public health, welfare or the environment)
2. Liability of the responsible parties (evidence to support
the contention that the parties meet the liability standard
of 5107)
3. Proof that the Fund-financed response activity was "not
inconsistent" with the requirements of the NCP.
4. Documentation of all eligible costs for site-specific Fund
expenditures.
Enforcement personnel must assure sufficient documentation of
these factors from the period in which the 10-point document is
developed and Funds are obligated through the actual clean up of
the cite. These cost recovery requirements must be net regardless
of whether there will be a simple cost recovery action (if no
Administrative Order is issued) or an action for response costs plus
damages (if the Order is not complied with). The Agency must
assure that evidence is preserved for any subsequent enforcement
action. Proper chain of custody procedures must be used for any
-------
-10-
•ampling or testing, and adequate records of site activity must £>e
kept. Employees of any contractor used for site activity must
cooperate with and be made available to the U.S. in preparation
and trial of any subsequent enforcement action. Enforcement,
program and legal offices should work together throughout the
case development.
VI. FOLLOW-UP
This guidance represents a substantial departure from prior
practice, and I expect that it will take some time to implement.
For these reasons, I will be reviewing all immediate removals
referred to Headquarters for compliance with this guidance. In
addition, for immediate removals under 5250,000, I will ask the
Directors, OWPE and OERR to review the compliance with this guidance
quarterly, and to advise me accordingly.
Appendix
cc: Gene Lucero, OWPE
William Hedenan, OERR
Kirk Sniff, OECM •
Dan Berry, OGC
-------
APPENDIX
Authority/Requirements/Enforcement of Administrative Orders
for Removal Actions under CERCLA
Under 5l06(a) of CERCLA:
If, EPA, acting on behalf of the President:
determines that there may be an imminent and substantial •
endangerment to the public health or welfare or the
environment because of
an actual or threatened release of a hazardous substance
from a facility
may, after notice to the affected state,
issue such orders as may be necessary to protect
public health and welfare and the environment.
Under $'l06(b) of CERCLA:
EPA may take action in the appropriate U.S. district
court, against any person who willfully violates or
fails or refuses to comply with any Order issued under •
S106(a), to enforce such order and
may fine such person not more than $5,000 for each day
such violations occur or such failure to comply continues.
Under $107(c)(3) of CERCLA:
Any person who is liable for4.a release or threat of release
of a hazardous substance that:
fails without sufficient cause to properly provide
removal action upon order of the president pursuant to
$106
nay be liable to the United States for punitive damages in
an amount at least equal to and not more than three times,
the amount of any costs incurred by the Fund as a result
of such failure to take proper action.
Civil action may be commenced against any such person to
recover the punitive damages. These punitive damages shall
be in addition to any costs recovered from such person
pursuant to §112(c) .
Any monies received in punitive damages shalL be deposited
in the Fund.
-------
APPENDIX PAGE 2
National Contingency Plan Requirements for Immediate Removals
Under $300.65 of the NCP:
Immediate Removal action is appropriate when the lead agency
determines that:
• the initiation of the removal action will prevent or
mitigate immediate and significant risk of harm to
human life or health or to the environment from such
situations as:
1. Human, animal, or food chain exposure to «
acutely toxic substances
2. Contamination of drinking water supply
3. Fire and/or explosion
4. Similarly acute situations
Immediate removal action may include but are not limited to:
' ' ••;•*
1. Collecting and analyzing samples to determine
the source and dispersion of the hazardous
substance
2. Providing alternative water supplies
3. Installing security fencing or other measures
to limit access
4. Controlling the source of the release
5. Measuring and sampling
6. Moving hazardous substances off-site for storage,
destruction, treatment or disposal
<*
7. Placing physical barriers to deter the spread
of the release
8. Controlling the water discharge from an upstream
impoundment
9. Recommending to the appropriate authorities
the evacuation of threatened individuals
10. Using chemicals and other materials in accordance
with Supart H to restrain the spread of the
substance and mitigate its effects
11. Executing damage control or salvage operations
------- |