oEPA
United St
Environmental Protection
Agency
Office of
Solid Waste and
DIRECTIVE NUMBER: 994o.2
TITLE: Issuance of Final Revised Guidance on the Use and
Issuance of Administrative Orders under §7003 of
RCRA
APPROVAL DATE:
EFFECTIVE DATE: 9/21/84
ORIGINATING OFFICE: OWPE
m FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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3EPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
Interim Directive Number
9940.2
Originator Information
Name of Contact Person
Virginia Steiner
Lead Office j-j ^
- CJOERR DoWPE
D OSW Q AA.OSWER
Mail Code m_52J
TelephpneNumter
*4 / ~) s~j£fj
Approved for Review
Signature of Office Director - /
I^A. /cC^y
Date
f'ZO'K*
Title
l
Issuance of Final Revised Guidance t>nt:the use and Issuance of Administrative Orders
under §7003 of RCRA.
Summary of Directive
Guidance on the use and issuance of Administrative Orders under §7003 of RCRA
where there is an muninent and substantial endangerment to public health
and the environment.
Administrative Order, Eminent and substantial endangerment, negotiations and
state notification letter..
Type of Directive (Manual. Policy Directive, Announcement, etc.)
Guidance
Status
D Draft
ED Final
D New
1 — 1 Revision
Does this Directive Supersede Previous Directive(s)? | ( Yes | ( No Does It Supplement Previous Directive(s)? | | Yes | | No
If "Yes" to Either Question, What Directive (number, title)
Review Plan
D AA-OSWER D OUST
D OERR D OWPE
Q OSW D Regions
D OECM
D OGC
D OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Signature of OSWER Directives Officer
Date
Date
EPA Form 1315-17(10-85)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SEP 2 11964
MEMORANDUM
SUBJECT;
FROM:
TO:
Issuance of Final Revised Guidance on the Use and
Issuance of Administrative Orders Under Section 7003
of the Resource Conservation and Recovery Act (RCRA)
Courtney M. PricefVaZT »\ . fVt—L
Assistant Administrator'for Enforcement
and Compliance Mentoring
Lee M. Thomas
Assistant Administrator for Solid Waste
and Emergency Response
See Attached List
Attached is the Final Revised Guidance on the Use and
Issuance of Administrative Orders Under Section 7003 of RCRA.
The responses to the drafts of this guidance were very
positive. A considerable effort has been made to incorporate
the comments received where appropriate. We greatly appreciate
your involvement in the development of this important policy.
If you have any questions, please contact Susan Conti, of
OECM-Waste, at FTS-382-3103.
Attachment
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Regional Counsels, Regions I-X
Regional Administrators, Regions I-X
Hazardous Waste Coordinators, Regions I-X
RCRA Branch Chiefs, Regions I-X1
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FINAL REVISED GUIDANCE MEMORANDUM ON THE
USE AND ISSUANCE OF ADMINISTRATIVE ORDERS
DER SECTION 7003 OF THE RESOURCE CONSERVATION
AND RECOVERY ACT (RCRA)
September 26, 1984
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TABLE OF CONTENTS
I. INTRODUCTION 1
II. SCOPE OF RCRA §7003 2
t
A. Evidence 2
B. What Constitutes Handling, Storage,
Treatment or Disposal 3
C. Necessity of Existence of Imminent and
Substantial Endangerment 3
D. Persons 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 S7003 Order 9
1. Respondent's Financial Status 9
2. Number 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 ADMINISTRATIVE ORDERS 15
VIII. DELEGATIONS OF AUTHORITY 16
APPENDlTT"" STATE NOTIFICATION LETTER 17
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I. INTRODUCTION
RCRA's administrative enforcement authority is an
important component of the Agency's overall hazardous waste
enforcement program. The effectiveness of EPA's enforcement
program will be demonstrated as respondents implement site
remedies in compliance with administrative orders, the Agency
pursues enforcement actions vigorously against respondents
who fail to comply 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 enforcement
tool that may be used to abate imminent hazards that are caused
by the handling, storage, treatment, transportation or disposal
of solid waste or hazardous waste. Under. §7003, the Adminis-
trator may seek injunctive relief in the appropriate United
States District Court or, after notice to the affected State,
take appropriate action "including, but not limited to, issuing
such orders as may be necessary to protect public health or the
environment."
The S7003 administrative order authority provides strong
incentives for respondents to expeditiously 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 unilateral RCRA §7003 orders in appropriate
cases wherever it is necessary to compel response action. It
is essential that the RCRA enforcement program combines both
administrative and judicial enforcement 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 §7003. It supersedes the earlier Agency
guidance issued on September 11, 1981, by Douglas MacMillan,
Acting Director, Office of Waste Programs Enforcement, entitled
"Issuance of Administrative Orders Under §7003 of the Resource
Conservation and Recovery Act."
SJ.ji.ce §7003 is similar in scope to §106 o,f 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 §106(a) of
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CERCLA." A fuller treatment of the following areas, common to
both 7003 and 106, is found in the (1983) 106 Guidance:
Necessity for Determination Based on Evidence; Necessity for
Actual or Threatened Release; Necessity that Release or Threat
of Release be from a facility (applicable in the case of joint
7003 & 106.orders); and Necessity for Existence of Imminent
ajid Substantial Endangerraent. Where joint orders under S§7003
and 106 are issued, the Regions should adhere to the require-
ments set out in both guidance memoranda. The reader should
also consult the CERCLA §106 guidance, "Issuance of Administra-
tive Orders for Immediate Removal Actions" (Lee Thomas, OSWER,
February 21, 1984).
It should be noted that the reauthorization of RCRA by
Congress may affect some aspects of §7003, regarding the
participation of the public in the settlement of administrative
orders and liability for past activities. If RCRA is amended,
supplemental guidance will be provided as appropriate.
II. SCOPE OF RCRA §7003 *J
In order to issue a §7003 order, the Administrator must
possess evidence "that the handling, storage, treatment, trans-
portation or disposal of any solid waste or hazardous waste
may present an imminent and substantial endangerment to health
or the environment" (42 U.S.C. §6973). Additionally, §7003
requires that the Administrator provide notice to the affected
State prior to issuance of the order. Each of these require-
ments is discussed in further detail below.
A. Evidence
Because the recipient of a §7003 order may seek
administrative or judicial review of the order, the Region
must have all the evidence necessary to demonstrate that the
^J Note; the terms "hazardous waste" and "solid waste"
jjL RCRA §7003 refer to the statutory definitions,
§§1004(5) and 1004(27), of RCRA and not to the regulatory
provisions promulgated pursuant to §3001 and codified at 40 CFR
Part 261. These regulatory provisions are meant for application
only in the Subtitle C regulatory program. As long as a waste
meets the §1004 definition of solid or hazardous waste, it need
not be listed in Part 261 or satisfy one of the characteristics
specified in Part 261.
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statutory criteria have been satisfied at the tine the order
is issued. The evidence must establish that the respondent
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 and substantial
endangerment "to- health or the environment. Necessary evidence
nay be documentary, testimonial, or physical and may be
obtained from a variety of sources including inspections,
investigations, or requests for production of documents or
other data pursuant to RCRA SS3007, 3013 or CERCLA S104. The
evidence must be sufficiently probative and reliable to
enable a reasonable person to conclude that issuance of an
order is appropriate. For example, an unsubstantiated citizen's
complaint would normally not be sufficient to justify issuance
of an order. If that complaint were supported by corroborating
evidence, however, such as laboratory analyses, the complaint
and corroboration could normally be considered a sufficient
basis for issuance of the order.
B. 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 are potential recipients of a §7003 order.
Whether §7003 may be used to abate present imminent hazards
caused by past disposal practices is an issue that has been
litigated repeatedly. The Agency has consistently maintained
that §7003 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 8, 1984) clearly supports
the Agency"s position. Thus, Regional Offices should consider
the issuance of §7003 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
§7003 otjjer 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-
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nent and substantial endangerment to public health or the
environment definitely exists. Instead, an order may be issued
if there is sound reason to believe that such an endangerment
may exist.
Evidence of actual harm 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 means something less than actual harm.
When one is endangered, harm is threatened; no
actual injury need ever occur. 541 F.2d 1 at
13, footnotes omitted, original emphasis, 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 §7003, 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. 93-1185 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 period of latency. One must judge
the risk or likelihood of the harm by examining the factual
circumstances, 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
endangerment can also be found in Reserve Mining Co. v. EPA,
546 F.2d 492 (8th Cir. 1975); U.S. v. Vertac Chemical Co.. et
al.. 489 F.Supp. 870 (E.D. ArkT~l980); U.S. v. Solvents'
Recovery Service, 496 F.Supp. 1127 (D. Conn. 1980); UTS, v.
Midwest Solvent Recovery, 484 F.Supp. 138 (N.D. Ind.~T?80);
U.S. v. Diamond Shamrock Corp., 17 E.R. 1329, (N.D. Ohio
T9TJT); U.S. v. Price, 688 TT2H 204 (3rd Cir. 1982-); and, U.S.
v. ReiL4y Tar and Chemical Corp., 546 F.Supp. .1100 (D. Minn.
19817:
The nature of the endangerment and the basis for the
finding of an imminent and substantial endangerment must be set
forth in the order. If sampling and analysis data are being
relied upon, a summary of such data should ordinarily be set
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forth in the order. At any rate, all evidence supporting the
finding of any imminent and substantial endangertnent in the
order must be compiled into a single, concise document consti-
tuting the .endangerment assessment. [An Endangertnent Assessment
Guidance is presently being prepared by the Office of Solid
Waste and Emergency Response.]
D. Persons to Whom 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 an imminent hazard. The term encompasses', if applicable,
the present owners and operators of a site, including an inactive
site. Similarly, the term includes persons whose ongoing
conduct may result in the risk of an imminent hazard. Whether
previous owners of a site or past non-negligent off-site
generators are also covered by §7003 is an issue that has
received much judicial attention.
Although the case law is unsettled, two courts have upheld
EPA's position that previous owners of a site may be held
liable under S7003. U.S. v. Price. 688 F.2d 204; U.S. v.
Reilly Tar and Chemical Co., 546 F. Supp. 1100. Thus, if
otherwise appropriate, Regions should consider issuing S7003
orders to previous owners of a site, even an inactive one, in
cases where the previous owner's conduct may have caused or
contributed to conditions at the site which may present an
imminent hazard and substantial endangerment.
TO date, the courts have been unwilling to include past,
non-negligent, off-site generators within the scope of §7003.
See, U.S. v. Wade. 546 F. Supp. 785 (E.D. Pa., 1982); U.S. v.
NEPACC07T79 F. Supp. 823 (W.D. Mo., 1984) [U.S. filed cross-
appeal June 29, 1984; decision pending]. It is recommended,
therefore, that the Regional Offices utilize CERCLA §106 to
order such generators to perform necessary cleanup work. While
an early decision was unfavorable, the majority and all recent
decisions have held,that §106 does apply: U.S. v. Wade, 546 F.
Supp. 785 [held §106 is not applicable to past, non-negligent
generators]; U.S. v. Price. 577 F. Supp. 1103 (p.'N.J., 1983)
[held SJ.06 does apply to past, non-negligent generators]; U.S.
v. NEPACCO. 579 F. Supp. 823 [held §106 does apply to past,
non-negligent generators]; U.S. v. Conservation Chemical Company,
No. 82-0983-CV-W-5, Order (W.D. Mo., Feb. 3, 1984) [held §106
does apply to past, non-negligent generators]; and U.S. v.
A&F Materials, et al.. No. 83-3123 (S.D. 111., Jan.2U, 1984)
[held §106 does apply to past, non-negligent generators]. The
Agency's position is that §106 does apply to past, non-negligent,
off-site generators.
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E. Notice to Affected States
Finally, before an Order may be issued, the "affected
state" must be given notice of the Agency's intention to issue
the Order. .
The Agency is not held to a statutory period of time for
notice. Normally, written notification to the state should
precede federal action by at least one week. Circumstances
may arise, however, where a more 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 made 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 Information Act prior to
issuance of the order by EPA. If this situation arises, the
Agency may delay notice to the affected state(s) until (no
later 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 as the Appendix. This
form also provides the format for oral notice.
An "affected state" is a state in which the conduct or
condition which may present an imminent and substantial
endangerment 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 more 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 may
be performed pursuant to the order should be notified. (Note:
Consult the following guidance for more information on the
State/Federal relationship: "Implementing the .State/Federal
RelatfBtrship in Enforcement: State/Federal Enforcement
Agreements", OECM, June 6, 1984.)
III. SELECTING ENFORCEMENT OPTION
Although S7003 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 CERCLA §106 adminis-
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trative or judicial action, or a Superfund financed cleanup of
a hazardous waste site. The 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 optionsT)
A. Administrative Order or Civil Referral
Initially, the Agency must determine whether it is more
appropriate to use administrative or judicial enforcement
action; each has definite advantages and drawbacks. An admin-
istrative order 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 a case to the Department 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 CERCLA
Once a decision has been made to proceed administratively,
the Region must then decide whether an order under RCRA §7003
or CER6feA"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 S106 (1983) guidance
for a discussion of the issuance of joint orders.]
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There are three situations where a joint order is not
available, more specifically, where a RCRA S7003 order can be
used but a CERCLA S106 order cannot.
The first situation would result when the imminent hazard
is caused by a RCRA "solid waste" but not a "hazardous waste."
RCRA S7003 orders can be used to abate imminent hazards pre-
sented by "solid wastes" (RCRA §1004(27)) as well as "hazardous
wastes" (RCRA §1004(5)). By contrast, CERCLA §106 orders are
limited to abating imminent hazards presented by "hazardous
substances" (CERCLA §101(14), CERCLA §101(14)(c) defines
"hazardous substances" as including "hazardous wastes" under
RCRA §3001, but not RCRA "solid wastes" under §1004(27).
Therefore, when an imminent 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 §106 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
term "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
meant to be applied only in the 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
(40 CFR 261 Subpart D). Residues of a spill or a release of
gasoline are not automatically listed as hazardous. Even so,
gasoline leaking from underground storage tanks can be control-
led under RCRA as a "solid waste". As stated earlier, §7003
can be-used to address wastes that satisfy the statutory defin-
ition of "hazardous waste" under RCRA §1004(5) even if they
are not listed or do not, exhibit a RCRA hazardous waste charac-
teristic under 40 CFR Subpart C. Orders have been issued
under RCRA §7003 to owners of underground storage tanks that
were leaking gasoline or other petroleum products.
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C. Deciding to Use a §7003 Order
This section discusser factors to consider when deciding
whether or not to use a $7003 order. These factors include:
- financial status of the 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 terms of
the order is feasible, i.e., where the respondents are in a
position to perform the ordered response actions within speci-
fied time periods. This does not mean that EPA must make a
pre-issuance determination that respondents will comply with
an order, but rather that compliance is practicable. If the
Agency anticipates non-compliance with an order it is
considering issuing, the use of the order mechanism may serve
only to delay initiation of an injunctive action under S7003
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:
0 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.
0 The Securities and Exchange Commission (SEC)
requires publicly traded companies to submit
.Detailed financial statements. This information
is publicly available. (Consult NEIC's manual
entitled "Identifying Responsible Parties" for
additional information on obtaining SEC
files.)
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0 Responsible parties nay submit financial
information to the Agency during discussions
or negotiations held prior to the issuance of
an Order.
0 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 S7003 provides for joint and
several liability has been challenged by U.S. v. Stringfellow,
No. 83-2501 - MML (C.D. Cal., April 5, 198577 That decision
held that neither RCRA §7003 nor CERCLA S106 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: be fore issuing a RCRA §7003 order
to 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. _' Instead, the order
will require the same response 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 cost.
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.
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abate imminent hazard conditions at a site. Accordingly,
issuing Orders to all responsible parties may not 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 remedies 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 terms of the Order, is that each Respondent is individually
liable for compliance with the Order's requirements.
ii) Supervision
After an order is issued, the Agency conducts
compliance monitoring at the site to ensure that responsible
parties comply with the terms of the order. Although no
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 limited number of responsible parties
or a single contractor (hired by the responsible parties) doing
the work at the site.
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 required response action is relatively precise.
Orders are particularly useful to require that, respondents
cease any ongoing activity that is causing the imminent hazard.
When remedial work is required, an order may best be used to
mandate discrete tasks 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 S7003 order, or succession of orders, may be used
to require response action throughout the entire "cleanup pro-
cess. «**t^is entirely appropriate to use §7003 to order
immediate sampling 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,
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Monitoring, sampling, analysis and reporting can, of course,
also be required through use of a RCRA S3013 order. A $3013
order may be issued absent a finding of an imminent hazard
although it does require a finding that the presence of, or .
release from a site of, hazardous waste "may present a substan-
tial hazard- to human health or the environment." RCRA S3013(a)
(1)&(2). [See, Issuance of Administrative Orders Under Section
3013 of RCRA, issued September 1984.]
t
"IV. ELEMENTS OF AN ORDER
All 57003 orders should contain the following elements:
0 a statement of the statutory basis for the order.
0 a statement of the agency's authority to issue
the order and the liability that may be incurred
if the respondent fails to comply.
0 a specific determination supported by findings
or reference to a separate endangerment assessment
that states that the 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 EPA 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.
0 the company is a facility as defined under CERCLA
§101(9). (Note: required only when the A.O. is also
based on CERCLA S106).
0 a finding that the substances are solid or
hazardous wastes.
0 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.
0 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
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operator's ability to comply and the Agency's
ability to enforce the order judicially should
the respondent violate its terns. A specific
order provides the court with Agency articulated
standards by which to judge the respondent's
noncompliance.
0 EPA authority to be on site during work, obtain
split samples and other information generated,
and stop work if an emergency arises.
0 sampling and analytical procedures.
0 health and safety procedures.
0 notice to affected States. A statement should
be included, where possible, that notice to the
affected state(s) has been given.
0 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 terms and its applicability
to the recipient. (Note; The administrative record
containing EPA's evidence should be available for the
recipient to examine.) The conference will help EPA
ensure that it has based its order on complete
and accurate information 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 to take necessary action.
In this case, EPA can be better prepared to
take necessary remedial action itself or seek
judicial remedies. (See also, Conference Procedures,
infra p. 14).
0 an effective date of the order. Each order
should specify the date on which it becomes
j^ff.ective. Because a S7003 order by definition
addresses an imminent hazard, it should ordinarily
become effective within 10-14 days of receipt by
the respondent. In emergency situations the
effective date may be shortened to as little as
48 hours. Any situation that requires an
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affirmative response in less than 48 hours should
be addressed under $104 of CERCLA as a fund-
financed emergency removal. [See: Issuance of
Administrative Orders for Immediate Removal Actions,
supra,' p. 2 (discussion .of the timing of A.O.'s).]
0 indemnification of EPA. The order should exempt the
Agency from liability for damages, even if the damages
occurred pursuant to an EPA enforced order.
0 a public comment period for consent orders.
0 a civil penalties section for unilateral orders
and a stipulated penalties section for consent
orders.
0 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 designee. However, other arrangements may 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
administrative 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 left to the discretion of the EPA
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:
0 A statement of the date(s) and attendees of any
conference(s) held; and
0 A description of the major inquiries made and
views offered by the Respondent contesting the
terms of the order.
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The presiding official must prepare a statement which
addresses the significant arguments raised by the respondent,
recommends how the order should be modified, if at all,
and contains the reasons for the changes or revisions.
«.
VI. MODI FI CATIONS. REVOCATION, OR STAY OF THE ORDER
Based on a review of the file (on which the order was
based) any probative information or argument made by the
respondent (following receipt of the order) or by "recommen-
dation of the presiding official, the issuing official may
modify or revoke the order. Any modification to the order
must be communicated to the respondent as part 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 supporting the order, copies of written
documents offered in rebuttal by the respondent during the
conference, and a copy of the request for a conference.
The issuing official may also stay the effective date of
the order if the conference process could not be completed
within the specified time period.
VII. NEGOTIATION OF ADMINISTRATIVE ORDERS
Although EPA recognizes that recipients of unilateral
S7003 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 to assess the likelihood that the respondents
will perform the tasks set forth in the order. If negotiations
look unpromising EPA must decide whether to issue an order
unilaterally, refer a 57003 civil action or initiate a Fund-
Financed response (if this option exists). EPA should not
compromise its authority to secure necessary action simply to
obtain an order on consent.
Should negotiations result in an agreement, the resulting
order must contain all of the requirements set forth above;
these requirements are necessary to ensure that the order is
enforceable should the respondent decide not to comply. The
same requirements apply even if the respondent has voluntarily
begun cleanup efforts. In general, the negotiated order
should set out specifically what each respondent must do to
comply.
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VIII. DELEGATIONS OF AUTHORITY
At the present time, the authority to issue RCRA S7003
administrative orders is delegated to the Assistant Adminis-
trator for Solid Waste and Emergency Response and the Regional
Administrators. The Regional Administrator must consult with
.the Assistant Administrator for Enforcement and Compliance
Monitoring or the designee and must obtain the advance
concurrence of the Assistant Administrator for Solid Waste
and Emergency Response or delegatee. The Assistant Adminis-
trator for the Office of Solid Waste and Emergency Response's
authority to issue S7003 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 §7003 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 RCRA §7003 unilateral
order or order on consent. Regarding Headquarters, the RA
must consult with the Office of Solid Waste and Emergency
Response (OSWER) prior to issuing RCRA §7003 orders to 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 of Enforcement and
Compliance Monitoring (OECM) or the Office of General Counsel
(OGC) 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 memorandum, before issuance of
such an order. The RA does not have to consult with or procure
concurrence from OECM or OGC prior to issuance of §7003 Orders
on consent. Consultation with OECM and OGC is recommended in
relatively new areas such as the use of a RCRA §7003 order for
underground gas tanks and where there are other novel legal
issues Involved.
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Appendix
STATE NOTIFICATION LETTER
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. R. Jones
State Agency
Division of Environmental Control
Dear Mr. Jones:
Enclosed for your information is a copy of an-order
[stamped "DRAFT" and "CONFIDENTIAL"] that the Agency intends
to issue on or after [date] to the XYZ Company, pur-
suant to Section 7003 of the Resource Conservation and Recovery
Act (42 U.S.C. S6973). 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 time
within which such actions must be taken. If you have any
comments or questions concerning the order, please contact
[EPA official] at [office] .
Sincerely yours,
Assistant Administrator for
Solid Waste and Emergency Response
[or]
Regional Administrator
[or their designees]
Enclosure
cc: Honorable J. Smith, Governor
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