PA
United States
Environmental Protection
Agency
OH.ce of
Solid Waste and
Emergency
DIRECTIVE NUMBER. 9992. oia
Elevation Process for Achieving Federal Facility
Compliance under RCRA
APPROVAL DATE: 3/24/88
EFFECTIVE DATE: 3/24/88
ORIGINATING OFFICE: OWPE/FFHWCO
D FINAL
D DRAFT
LEVEL OF DRAFT
C A — Signed by AA or DAA
D B — Signed by Office Director
l_J C — Review 8» Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Resoonse
&EPA
DIRECTIVE NUMBER: 9992. Ola
Elevation Process for Achieving Federal Facility
Compliance under RCRA
APPROVAL DATE: 3/24/88
EFFECTIVE DATE: 3/24/88
ORIGINATING OFFICE. OWPE/FFHWCO
D FINAL
D DRAFT
LEVEL OF DRAFT
Q A — Signed by AA or DAA
G B — Signed by Office Director
DC — Review & Comment
REFERENCE (other documents):
S WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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Washington, DC 20460
OSWER Directive initiation Request
1. Directive Number
9992.Ola
2. Originator Information
Name of Contact Person
JacquelineJThiell
1. 1 ;:.;.•
Mail Code
WH527
Office
OWPE
Telephone Code
475-8727
Elevation Process for Achieving Federal Facility Compliance under RCRA.
4. Summary of Directive (include brief statement of purpose) __.. , u,,,^,.-i -^or.™
Sets for an elevation process for settling disputes between EPA and a Federal agency
to assure that compliance agreements are settled in a timely fashion.
5. Keywords federal facility, RCRA, dispute resolution, Federal ^-—i^fty compliance agree-
f .
6a. Doe's This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
8 - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
Yes
X
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
10. Name and Title of Approving Official
Date
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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9992
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 4 1988 -«:.= -
SCi : A.ASV iv; 5V;- ;.:•,; •
MEMORANDUM
SUBJECT: Elevation Process for Achieving Federal Facility
Compliance JjfKter RCRA
FROM: J. Winston Porter, Assistant Administrator
Office of Solid Waste and Emergency Response
TO: Regional Administrators
Regions I-X
In my memorandum of January 25, 1988 I outlined the various
enforcement mechanisms that EPA is able to use at Federal
facilities under RCRA and CERCLA. i'he purpose of this memorandum
is to set forth an elevation process x'or settling disputes
between EPA and a Federal agency to assure that compliance
agreements are settled in a timely fashion.
BACKGROUND
The Federal Facilities Compliance Task Force recently
collected RCRA compliance information from the Regional offices
in preparation for a Congressional Hearing before the
Subcommittee on Transportation, Tourism, and Hazardous Materials.
This information consistently showed that in cases where EPA had
the enforcement lead at a Federal facility, negotiations between
EPA and the Federal facility on the terms of a FFCA had been
ongoing for extended periods of time. In some cases,
negotiations between EPA and the Federal facility had exceeded
the two year mark. Many Regions have expressed frustration in
their apparent inability to compel the conclusion of these
negotiations.
At the Hearing I expressed concern over the length of time
it was taking to conclude settlement negotiations for compliance
agreements at Federal facilities. I also described a process
that the agency was developing fci *. i^vating disputes between EPA
and Federal facilities to Headquarters for resolution. This
elevation process for resolving disputes between EPA and a
Federal facility when negotiations for a Federal Facility
Compliance Agreement are not concluded in a timely fashion is
described below. This process clearly would not apply if the
initial enforcement action was taken against the contract-
operator of a government-owned facility (GOCO).
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9992 Ola
NEGOTIATION AND ELEVATION PROCESS
As described in the January 25, 1988 memorandum, EPA will
issue a Notice of Noncompliance (NON) to a Federal facility as
the initial notification of RCRA class l violation(s) that are
classified as high priority. The NON should be consistent with a
RCRA 3008(a) complaint in format and content. The timeframes for
the issuance of the NON should be in accordance with the RCRA
Enforcement Response Policy for timely and appropriate
enforcement actions.
The followup to a Notice of Noncompliance is the development
of a Federal Facility Compliance Agreement (FFCA). The FFCA at a
Federal facility is parallel to a final order at a private
facility. It should contain a schedule of discrete actions for
returning the facility to compliance. In addition to the
provisions usually found in a final order under RCRA Section
3008(a), the FFCA must include an enforceability clause that is
identical to the model language found in the January 25, 1983
memorandum and the model dispute resolution language for
settling disputes within the context of implementing the
compliance agreement.
After the issuance of a Notice of Noncompliance. the period '
for negotiating a Federal Facility Compliance Agreement should
not exceed one hundred twenty (120) davs. At day ninety (90),
the Region should evaluate whether negotiations will be concluded
within the next thirty days. If it appears that negotiations are
close to settlement, the Region should aggressively pursue the
finalization of the agreement within that thirty day period.
If it does not appear at day ninety (90) that negotiations
for the FFCA will be completed within the following thirty days,
the Region should refer the dispute to Headquarters for final
resolution. The dispute should be formally referred to the
Assistant Administrator for the Office of Solid Waste and
Emergency Response within thirty (30) days of the expiration of
the ninety day negotiation period. A notification of the
elevation to Headquarters should also be sent to the Assistant
Administrator for the Office of External Affairs and the
Assistant Administrator for the Office of Enforcement and
Compliance Monitoring. At the time of referral, the Region
should consider issuing a press release on the compliance status
of the facility.
When a dispute is elevated to Headquarters for resolution,
the referral package should consist of a chronology which details
the correspondence between the regional office and the Federal
facility regarding the compliance status of the facility. The
chronology should highlight the Region's efforts at reaching
agreement with the facility. The referral package must also
include a description of the specific issues in the FFCA that
remain unresolved and the position of both the regional office
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9992
and the Federal facility on these issues. Any background
documents that substantiate the dispute(s) should also be
included in the package.
My discussions and/or meetings with the equivalent
representative from the Headquarter's office of the affected
Federal agency to resolve the dispute shall take place for a
period not to exceed thirty (30) days. Regional representatives
may be asked to participate in these discussions. In any case,
Headquarters will keep the Region apprised of the status of
discussions. If the dispute is not resolved within the thirty
(30) day period, the dispute will be elevated to the EPA
Administrator and his Federal agency counterpart for resolution.
CONCLUSIONS
I would like to reiterate my request in the January 25, 198a-
enforcement guidance to send copies of all Federal Facility
Notices of Noncompliance and draft and final Federal Facility
Compliance Agreements co \.he Federal Facility Compliance Task
Force. The Task Force is reviewing the draft FFCAs to ensure
that EPA's enforcement approach at Federal facilities is
nationally consistent. Collection and review of this information
will keep the Task Force up-to-date on Federal facility
compliance issues. Copies of correspondence that indicate the
lack of progress in negotiations between EPA and the Federal
facility for an FFCA should also be forwarded to Headquarters.
This information will allow the Task Force to anticipate the
elevation of a case to Headquarters for resolution.
Let me close by noting that timely escalation of disputes is
importa-rit to ensure compliance at Federal facilities. I urge you
to apply these timeframes seriously and to communicate them to
the Federal agency during the early stages of the negotiation of
an FFCA. Federal facility compliance with the hazardous waste
laws and regulations is one of my highest priorities. I would
appreciate your full support in implementing this elevation
process. If you or your staff have any questions, please contact
Christopher Grundler, Director, Federal Facilities Compliance
Task Force, Office of Waste Programs Enforcement, or Jacqueline
Thiell of his staff.
cc: Hazardous Waste Management Division Directors, Regions I-x
Regional Counsels, regions I-x
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