&EPA
            United States
            Environmental Protection
            Agency
          Office of
          Solid Waste and
          Emergency Response
DIRECTIVE NUMBER: 9900.0

TITLE: Enforcement Response Policy


APPROVAL DATE:

EFFECTIVE DATE: 12/21/84

ORIGINATING OFFICE: OWPE

H FINAL

D DRAFT

 STATUS:



REFERENCE (other documents):
 OS WER     OS WER      OS WER
'E   DIRECTIVE    DIRECTIVE   Dl

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wEPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Reauest
Interim Directive Number
9900.0
                                           Originator Information
Name of Contact Person
Ginny Steiner
Lead Office I — I
LJ OUST
D OERR Q3 owpe
D OSW D AA-OSWER
Mail Code ^^
Telephone Number
475-9229
Approved for Review
Signature of Office Director
Date
j-_ 70 - K
Title
          Enforcement Response Policy
Summary of Directive
     Provides guidance on classifying violations,  selecting  the appropriate
     enforcement action  in response to various  categories of RCRA violators
     and federal enforcement in  authorized states.
timely and appropriate enforcement actions
Definitions  for violation  categories (
                                                         priority  class I  or II)
Type of Directive (Manual. Policy Directive. Announcement, etc.)
Guidance

Status
D Draft
0 Final
O 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
   O AA-OSWER   D OUST
   D OERR       D OWPE
   LJ OSW       O Regions
                             LJ OECM
                             D OGC
                             D OPPE
D
Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Office pirectivesADfficer
-w r //i ^
/"'' d- iVs^^^
Signature of OSWER Directives Officer
Date
Date
EPA Form 1315-17 (10-85)

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         UN|TED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON, D.C. 20460
                         DEC2Ur:;4
                                                 '.VAST£ AND £vERC-:-.C"
MEMORANDUM
SUBJECT:  (Enforcement Response Policy
               w -*r«*' <
               .  Tnomas,
                         •
FROM:     £e& n. Tnomas, Assistant Administrator

TO:      ''Regional Administrators - Regions I-X


     I am enclosing the final Enforcement Response Policy for your
implementation.  The policy provides guidance on classifying
violations, selecting the appropriate enforcement action in response
to various categories of RCRA violators, and taking federal
enforcement action in States with authorized programs.

     The Enforcement Response Policy sets out an approach for
strengthening the RCRA enforcement program by concentrating its
efforts on the most serious violators and by ensuring that these
violators receive timely and appropriate responses.  Many of the
concepts in this guidance were developed and agreed to in principle
by the Regional Offices and many States in March 1984_as a result
of a series of meetings prompted by high level concern with
significant noncompliance under the RCRA program.  Much of this
guidance has been operational since that time and this document
merely formalizes the principles that were established then.

     I urge you to implement this guidance to the extent possible
in FY 1985 within the constraints of your Enforcement Agreements
and Grants.  However, there is no need for you to reopen FY 1985
negotiations with the States.  The Enforcement Response Policy
should be implemented fully in FY 1986.  Its principles, therefore,
should be embodied in the FY 1986 Enforcement Agreements and Grants.

     It is my hope that this guidance, along with the recently
issued RCRA Implementation Plan, Interim National Criteria for a
Quality Hazardous Waste Management Program under RCRA, and RCRA
Civil Penalty Policy will lead to significant improvements in the
rate of compliance with the RCRA program.

     I appreciate the assistance that your staffs have provided us
in the development of this guidance.

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ENFORCEMENT RESPONSE POLICY




      DECEMBER, 1984

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                         TABLE OF CONTEXTS
      SECTION                                          PAGE
I.    INTRODUCTION
II.   RELATIONSHIP TO OTHER AGENCY
      POLICY AND GUDIANCE
III.  ENFORCEMENT RESPONSES AND DEFINITIONS             6


IV.   ESTABLISHING PRIORITIES                          14


V.    EPA ACTION IN AUTHORIZED STATES                  15


VI.   APPENDIX - EXAMPLES OF CLASSIFICATIONS           17

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SECTION I

INTRODUCTION

     The goal of the RCRA Compliance Monitoring and Enforcement
Program is to attain and maintain a high rate of compliance
within the regulated community.  In order to accomplish this,
the Agency and the States must take frequent, visible, and
effective enforcement actions against serious violators.   This
means that the Agency and the States must exercise penalty
authorities against serious violators and act against them in
an expeditious manner.

     The Enforcement Response Policy thus sets forth an approach for
strengthening the RCRA Enforcement Program.  First, recognizing
the fact that there are not sufficient resources to address all
instances of noncompliance with the same level of effort, the
policy calls for concentration of effort on the most serious
violators, those called high priority violators.  These violators
represent the vast majority of violators with Class I violations.
High priority violators are to receive penalties, either by issuing
an order with a penalty, referring the case to a judicial authority,
or utilizing the Agency's penalty authority.

     Second, the policy espouses the concept of expeditiously
escalating an action when compliance is not achieved.  All too
often in the past, the RCRA enforcement program has relTed heavily
on "low level" anforcement actions (e.g.  warning letters and
notices of violation (NOV), often issuing more than one such action
over a long period of time with no success.  In order to achieve
compliance, stronger actions must be used in conjunction with the
warning letters and NOVs.  The Enforcement Response Policy thus
sets forth a timeline that indicates at what point a stronaer
action must be taken.

     Third, the policy lays out instances when the Agency will take
direct action in authorized States.  Finally, the policy revises
the violation classification system, essentially eliminating the
middle classification (previously Class II) and renumbering Class
III as Class II.

     The RCRA Enforcement Response Policy supersedes the guidance
set out previously in the following throe memoranda:

     1) July 7, 1981 from Douglas MacMillan to Regional
        Administrators and Enforcement Division Directors,
        the subject of which was "Guidance on Developing Compliance
        Orders Under Section 3008 of the Resource Conservation and
        Recovery Act,"

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                                -2-

     2) January 22, 1982 from Douglas MacMillan, through Christopher
        Capper and William A. Sullivan,  to Regional Administrators,
        Regional Counsels, and Air and Waste Division Directors,
        the subject of which was "Guidance on Developing Compliance
        Orders Under Section 3003 of the RCRA; Enforcement of
        Ground-Water Monitoring Requirements at Interim Status
        Facilities," and

     3) October 6, 1982 from Robert M. Perry and Rita M. Lavelle
        to Regional Administrators, Regional Counsels, and Air and
        Hazardous Materials Division Directors, the subject of
        which was "Guidance on Developing Compliance Orders Under
        Section 3008 of the Resource Conservation and Recovery
        Act; Enforcement of the Financial Responsibility Require-
        ments Under Subpart H of 40 CFR  Parts 264 and 265."

     All three memoranda provide guidance on the classification of
violations and on the enforcement response appropriate for the
various classes of violations.

     The Enforcement Response Policy provides guidance only on
civil actions - both administrative and  judicial.  Further, it
addresses only responses to violations,  those responses authorized
under §3008 of RCRA.  Use of the authorities set out in §3013
and §7003 for addressing situations that may present imminent
hazards to human health or the environment is set out in the
.policies on "Issuance of Administrative  Orders under Section 3013
of the Resource Conservation and Recovery Act" and "Issuance of "   ^
Administrative Orders Under Section 7003 of the Resource            4
Conservation and Recovery Act".                         ---     -"'  ^' '

     The policy and procedures set forth in this document and       *••
internal office procedures adopted pursuant to this document are
intended solely for the guidance of employees of the Environmental
Protection Agency and State Enforcement  Agencies.  They are not
intended to nor do they constitute rulemaking by the Agency, and
may not be relied upon to create a right or a benefit, substantive
or procedural, enforceable at law or in  equity, by any person.
Agency officials may take any action that is at variance with
the policy or procedures contained in this document or with
internal office procedures that may be adopted pursuant to this
document if determined to be appropriate in a specific case.

The Enforcement Response Policy is organized along the following
lines:

0 Relationship of the Policy to ether Agency Documents

0 Enforcement Responses and Definitions

0 Establishment of Priorities

0 FPA Action in Authorized States

0 Examples of Class I and II violations.

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It
                                -3-
SECTION II

RELATIONSHIP TO OTHER AGENCY POLICY AND GUIDANCE

     The RCRA Enforcement Response Policy does not stand alone.
   should be used in conjunction with the following:

     0 Agency Operating Plan - Sets the policy and planning
       directions of the Agency.  (Issued annually)

     0 Implementing the State/Federal Partnership  in Enforcement:
       State/Federal Enforcement Agreements (Issued June 26, 1984,
       referred to as Policy Framework!.  Calls for enforcement
       agreements with the States and provides general guidance
       in the following areas:

         — oversight criteria and measures for assessing good
            compliance and enforcement program performance
         — criteria for direct federal enforcement
         — notification and consultation protocols
         — State reporting requirements.

     0 RCRA Implementation Plan (RIP) - Supplements the Agency
       Operating Plan by outlining RCRA directions.  Sets
       reporting and tracking requirements for Class I violations
       and significant noriccmpliers .   (Issued annually)

     0 Interim National Criteria for a Quality Hazardous Waste
       Management Program Under RCRA (Issued May 15, 1984) -
       Defines "timely enforcement action:i by setting out
       t ine.f-r5-aas for taking enforcement action against two
       types of violators — ni.Qh priority and Class I.  (These
       timefrarnes are minimally acceptable times for action.  The
       Regions and States are urged to agree upon  mere stringent
       timeframes in their grants or enforcement agreements.)
       Describes, in general, appropriate responses.

     The latter two RCRA-specif ic documents, as well as this
Enforcement Response Policy, provide direction for -implementing
the Agency Operating Plan and Policy Framework.  The diagram on
the following page illustrates the interaction between the various
RCRA-specif ic guidance documents and .the cross-media Policy Framework.
The diagram shows, across the ton of the page, each of the five
areas covered oy the Policy Framework.  It then lists the RCRA
documents that address each of the five areas.

     The relationship between the Enforcement Response Policy and
the RCRA Implementation Plan and Interim National  Criteria for a
Quality Hazardous Waste Management Program Under RCRA (Program Quality
Document) is as follows.  First, the Enforcement Response Policy
establishes a classification system that is fundamental to both
the reporting procedures and the enforcement response procedures
set out in the other documents.  The RIP requires  that the Regional

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RELATIONSHIPS AMONG RCRA ENFORCEMENT POLICY AND GUIDANCE DOCUMENTS
J
Policy Framework for State/EFA- Enforcement "Agreements"
Oversight Oversight ' Criteria for Advance State
Criteria and Procedures Direct Federal Notification Reporting
Measures: and Protocols Enforcement in and Consultation
Defining Good Delegated States
Performance


Program Quality I
Enf. Reap. Policy f

RIP Enf. Resp
•rograra Quality KII>
Inf. Resp. Policy

Policy




Knf. Resp.


Policy






RIP
Enf. Reap. Policy



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                                -D-
Offices and the States report  "Class  I"  violations  ir. the Hazardous
Waste Data Management System  (HWDMS)  and the  Strategic  Planning
and Management System (SPMS).  Also,  for Agency  tracking  purposes,
the RIP defines a category of  violators  called  "significant
noncompliers." "Significant noncornpliers"  are facilities  with
Class I violations of the ground-water monitoring,  closure,
post-closure or financial responsibility requirements.  The
compliance status of these violations will  be tracked throughout
the year in the SPMS.  The Enforcement Response  Policy  defines
"Class I violation", but does  not  focus  on  response to  "significant
noncompliers."

     The Program Quality Document  sets out  timeframes in  which  two
categories of violators, high  priority violators and Class I
violators, should be addressed.   It also describes  the  types  of
enforcement actions appropriate  in response to  such violators.
However, it does not provide  the  Regiona1 Offices and States  with
guidance on how to determine  which of the  se.veral....appropriALe
actions to choose in~5r"sj5ecj._fic  situa_t_ijon.... The  Enforcement  Response
FoTicy a~ddr~ess~es"that issue.  Tu'rtKer, while  the Program  Quality
Document describes generally  what  type of  enforcement response
would be considered timely and appropriate  for  various  situations,
it does not describe how EPA  would respond  if an authorized  State.
failed to take_ action in <:• timely  and appropriate manner.  This
docure"nT~s"ets o'u^T a presumption  that  EPA will immediately begin
case development worx wnen it  fines _tha_t State' act ion is  not
proceeding expeditiously or that  tre  State  nas  made a response
that is not aooronriate to the situation.   •          —-

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                                -6-
III.  ENFORCEMENT RESPONSES AND DEFINITIONS

     The range of enforcement responses  that could  be considered
timely and appropriate action are described in  the  Program Quality
Document and diagrammed on the following two pages.  Each Regional
Office will negotiate with each State an "Agreement" chat will
specify, among other things, what consititutes  timely and
appropriate enforcement action in response to two categories of
violators, high-priority violators and Class I  violators  (See
page 11 for definitions of "high-priority violators" and  "Class I
violators".) Although the Regions and States are encouraged to
negotiate more stringent timeframes  in their Agreements,  the
timeframes set out in the Program Quality Document  will be used
for purposes of example in the remainder of this document.  To
emphasize that they are only examples, time limits  are set in
parentheses.

High-Priority Violators - The Regions or States should respond to
"high-priority" violators by issuing Adminis_t_ratiye__0rde_rs_
(CQmp.la_i_n.t_sj. or referring judicial actions "within (90) days of..
the discovery _V of the violations.  (See page 11 for the definition
of "high-prio~rity"violator". ) In addition to requiring compliance
on an expeditious schedule, the Regions or States should assess
penalties against high-priority violators.  States  that do not
trave administrative penalty authority .will need to  address high-
priority violators by taking judicial action or by  asking EPA to
isaue ddminiscrative Complaints.

                                                         ,»-^
Class I Violators - The appropriate  response to a "Class  I
violator" is the issuance of a Notice of Violation  (NOV), warning
letter, or 'Other similar notification within (30) days of violation
discovery, or the issuance of an Administrative Order or  referral
of a judicial complaint within (90)  days.  (See page 11 for
definition of "Class I violator".)   If the initial  action
is an NOV, warning letter, or other  similar notification and it
does not result in either final compliance or in an enforceable
compliance schedule within (90) days, a decision should be made
to issue an Order or refer a judicial complaint.  The Region or
State would have an additional (60)  days to issue the Order or
(90) days to refer the judicial complaint.  Th-ese procedures and
the procedures described for addressing high-priority violators
are diagrammed on timelines on the following two pages.

\/ A violation is discovered as..Qf the date when the case
development staff determines through review of  the  inspection
report and/or data (e.g., laboratory reports),  that a violation has
occurred.  For purposes of tracking  national progress against the
timeline, the violation discovery date mentioned in the Program
Quality Criteria was 45 days after the inspection.  However., the
Program Quality Criteria did not officially designate a time from
date of inspection to discovery of violation.   The  Agency will
designate a violation discovery date in  the next revision of the
Criteria scheduled for late FY 1985.  It is expected to be much
less than 45 days.  Forty-five days  between an  inspection and
violation discovery date should only be used in extreme circumstances,
usually when sampling and analysis is involved.

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2 I
..MELItsJE  FOR  EWFORUtMENT  ACTIONS
       HIGH  PRIORITY  VIOLATORS
                  »0
                      44«lnl»ll*ll*«
                  Mllfc
                                         to
                                         Authority
                                               (0
•  IUo4l«r« ••
           T|M
• c*«plf«nc« *ck*dul« «ll
•cllon* will fc« t»k«n If
            b« •oa
                      ltxcJ le «a«u(« c*nf«(*«ac« with lk«
                       I* aat Is 
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II.E II
TIMELINE  FOR   ENFORCEMENT  ACTIONS
                       CLASS  I   VIOLATORS
                                                                            I
                                                                            00
                                                                            I
 If l>w ••!!•• *r

 •f MkU| !«««
                          I* !•••• ao A4ainl«n« tlv« Or44 r (M» or r«f«r It*

                        . lh*a |M |U«IU« for Hick rrl«tlir VIoUl  «ho»l< k« foll*4ut4. r*c«Ul«4
                           If • UoJUf la BOI IB
                                      to
      ••(•(Ut|«n«
                          ••» (•••tally «»n»lnu« Infant 10 
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                                 -9-
 Class II Violator3 - '.vhile EPA and most authorized States have
 the autnority to respond to any Subtitle C violation with an
 order or referral, a violator with only Class II violations will
 normally receive a warning letter as the initial response.  If
 the warning letter does "hot result in expeditious compliance,
 normally within 30-60 days of issuance, the Regional Office
 or authorized State should consider whether the violation warrants
 issuing an order.  In cases involving large numbers of Class II
 violations, repeated Class II violations, or any other case the
 enforcement authority considers serious, it may be preferable  to
 issue an orde_r_ d_irectly, without a r^rec^ding warning letter.

 Flexibility - Within the- rrainework set out above, the Region or
 State: 1) must determine what type of action is appropriate as
 the initial response to a Class I violator, and 2)  muse decide
 between administrative and judicial action in response to a
 high-priority violator or to a Class I violator if an NOV or
 warning letter is either not issued or is not successful.  In
 deciding which enforcement tools to use, a number of factors must
 be considered.

      With regard to initial response to Class I violators,
 as indicated by the timeline in Table II (page ?), it is acceptable
 for a State to initially address a Class I violator with an NOV
 or similar response or to attempt to negotiate an enforceable
 agreement with the violator.  In fact, it is expected that such
 action will frequently result in ccmpliance or in the negotiation
 of an enforceable agreement that incorporates a compi-vance schedule.
 If, however, such an action does not result in .ccmpl iance or in
 the negotiation of an enforceable compliance schedule within
 (90)  days following its issuance, an administrative order or
 judicial referral must be initiated.  The timeline allows an
 additional (60) days for the development and issuance of an
 Administrative Order.  It unintentionally fails to allow additional
 time  for the development and referral of a judicial complaint,
 however it is recognized that additional time must be allowed
 for such activities.  It is expected that Administrative Orders, .
 rather than judicial referrals, will be the usual response .to
 non high-priority Class I violators.

      Many States have the authority to issue NOV's and warning
 letters but are not required to do so before issuing an order.
 Those States must decide in each case of a Class I violator whether
 to begin with an Order or with an NOV or similar notice.  In general,
 the use of NOV's and warning letters by such States is recommended
 only  in cases where the State believes that the NOV or warning
 letter will itself lead to compliance within the required timeframe.
•''if a  warning letter or NOV	is not expected to result in compliance
 and is not required, the State should go directly to an administra-
tive _order.  Other States are required to precede orders and
'"referrals with NOVs, warning letters, or some other type of
 notification.

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                               -10-


      It should be noted that  the Regions  and  States should seek
 compliance on as expeditious  a  schedule  as  possible.   If the
 full time period allowed by the  timelines  is  not  necessary in a
 particular case, a more timely  action  should  be taken.

      In deciding whether to respond  with  an Administrative Order
 or with a judicial referral,  the first consideration  is whether
 the State has administrat_iye_4xajialty au.t-ho.rit\u.  States that do
 not have administrative penalty  authority will  need to  refer high-
 priority violators to  their Attorneys  General  for action or request
 that EPA issue an Administrative Order with penalties.   In making
 making this decision,  the Region or  State should  consider the handler's
 compliance history and culpability.  Wh_ile  administrative actions
 _g_ej3.er-aJr-1-y— pj:.oceed-_mQ_re_.g.u_i_ck_ly  than._j.ud.fci.al ~act:;ro'rrsr^  FKeTIIlJFe
 many instances in which 1udicial-a.c.tian_i.s.-m.ore_ appropriate.  If
 the handler is a chronic violator  and  administrative  action has
 not been successful  in deterging repeated violations  or if there
 are other reasons to believe  that  compliance  with an  administrative
 order is unlikely, the Region or State may  choose to  seek relief
 in the courts.  Similarly, court action  nay be  appropriate in the
 case of a handler that is in  violation of a compliance  schedule in
 an order, agreement  or decree.   Judicial  referrals may  also be
. appropriate when a handler is believed to have  intentionally
'committed violations and a,_civi 1 /  rather  than crimTn~a3i, action
 is planned.  Judicial  action  in  such cases  is  likely  to serve as
 a more effective deterrent to other  would-be  violators  than an
 administratively issued Order.

      For a Class I violator that is  not  in  the  high-priority
 category, an Administrative Order  is generally  the most effective
 response.  Where EPA is the primary  enforcement agency, the initial
 enforcement response to a Class  I  violator  should generally be an
 order with penalties.  At their  discretion, this  response is
 also recommended for authorized  States that have  the  statutory
 authority to assess  administrative penalties  and  to issue Adminis-
 trative Orders directly, without any.prior  NOV  or warning letter.
 However, many authorized States  are  without authority  to assess
 administrative penalties and  many  are  required  to precede Orders
 and referrals with NOV's, warning  letters,  or some other type of
 notification.

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                             -11-
Priority Classification Scheme; Key  Definitions

     The RCRA program employs several  terms  for  defining priori-
ties for enforcement response/ used  within  this  document 2-3  weUi as
the Program Quality Document and  the RCRA  Implementation Plan.

     First, the program classifies individual  violations ini-o-
one of two Classes:

         Class I Violation - a violation that  results in a
         release or serious threat of  release  of hazardous wa-^te to
         t*he elTvironment, or involves  the  failure to assure:  tftat
         groundwater will be protected, that proper clc
         post-closure activities  will  he undertaken, or l
         hazardous wastes will be destined  for and deliver erf do
         permitted or interim status facilities.

         Class II Violation - any violation  of RCRA recaf.remifi.nts
         that does not meet the criteria listed  above for Clasps  1
         violations.
The distinction between Class  I and Class  II  violations
clearly understood; examples of Class  I  and  II  violations
provided in the Appendix.  Mote that  the two-Class  systecr  r
the previous • three-Class system.

     Further, a RCRA handler is classified  based  upon trie  n^ii'ira of
its collection of violations and , various additional factCTo  su..^ as
compliance history.  The designations  of handlers are as fa- 1 lews:

         High-Priority Violator - a handler  who

                 - has one or  more Class I  violations at the-
                   groundwater, closure/post  closure, arwS
                   financial responsibility  requirementsr  «M

                 - poses a substantial  likelihood of -eiposu.r*.
                   to hazardous waste  or has  caused act^-alL
                   exposure, or

                 - has realized a substantial economic &erw£it
                   as a result of noncompliance,  or

                 - is a recalcitrant or chronic violatar G ii.nc. lard Ing
                   a handler who is violating schedules irv an
                   Order or decree) .

          Class I Violator  -  a handler with  one  or more CLas-s, I
          violations who is not a "high-priority  violate"..

          Class II Violator -  a handler who  has only Class- ET
          violations.

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Hich Priority

     The identification of high-priority violators is somewhat sub-
jective and will require judgment on the part of the Regions or
States.  The high-priority criteria do not place any burden of
proof on the Regions or States.  The criteria are set out only to
assist the Agencies in setting priorities for enforcement response
and determining when penalty assessments are essential.

     The likelihood of exposure in a situation created by a violator
should be evaluated on the basis of the case-specific information
and might consider the following, among other, questions^/:

      - What is the quantity of waste?

      - Is human life or health potentially threatened by the
        situation?

      - Are animals potentially threatened by the situation?

      - Are any environmental media potentially threatened by
        the situation?

In examining whether there is a substantial likelihood of exposure
posed by a violator, the focus should be on the potential for harn,
rather than whether harm actually occurred.

     One example of a violator that could be considered as posing
a substantial likelihood of exposure is an owner/operator who
installed an inadequate ground-wat'oc monitor.tr.g cyctcm at a faciiily
that overlies a. nearby town's drinking water supply.   Another
example is an owner/operator who failed to prevent the entry of
people onto the active portion of a surface impoundment fardlity.

     While there is no firm threshold for determining whether a
violator has triggered the second high-priority criterion, the
substantial economic benefit of noncompliance, it is suggested that
55,000 be used as a guideline.£/  While it is difficult to identify
£/ The Penalty Policy requires that the likelihood of exposure for
each individual regulatory violation be evaluated separately.  How-
ever, for the purposes of identifying high-priority violators, this
policy recommends that in evaluating the likelihood for exposure,
the Region cr State look at the handler's collection of violations
as a whole.
_£/ The Penalty Policy defines a substantial economic benefit as a
benefit _> 52,500.  It is appropriate to set a higher dollar value
as the threshold in this policy because the purpose is to set out a
category of violators that demand response on an expedited schedule
and a penalty assessment regardless of whether the enforcement authority
has administrative penalty authority.  The Penalty Policy, on the
other hand, establishes a threshold to ensure that if a penalty
is assessed it at least offsets any economic benefit that may have
accrued, but not to determine whether action should be taken or
which violators should be addressed first.  Again, the Penalty
Policy considers eacn regulatory violation separately whereas
this policy looks collectively at all of a handler's violations.

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                           -13-
specific sections of the regulations whose violation wcu.ld reap
substantial economic benefit,  the following general areas are
likely candidates for consideration:

          0 failure to properly install ground-water monitoring
            wells

          0 failure to initiate assessment monitoring

          0 failure of a land  treatment facility owner/operator
            to monitor the unsaturated zone

          0 failure of an owner/operator to close a facility
            properly or to develop closure or post-closure plans

          0 failure of an owner/operator to establish and maintain
            a financial assurance instrument

          0 failure of an owner/operator to submit a timely and
            com-plete Part B permit application

          0 failure of a storage facility to install a secondary
            containment system

          0 failure of a facility to begin ground-water corrective
            action

          0 disposal at an unpernittied facility

          0 ship-ent of hazardous waste, by a generator, to an
            UP.permitted facility

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SECTION IV

ESTABLISHING PRIORITIES

     The Regions'  and States' priority targets should be, first,
high-priority violators, then Class I violators, and then Class II
violators.  Enforcement actions need not be taken for all high-
priority violators before any action is initiated against Class
I violators.  Because the different categories of violators
merit different levels of response with varying resource require-
ments, most Regions and States will want to respond to a nix of
the various categories of violators.  This is an acceptable
approach although the Regions and Sta-tes should keep in mind that
oversight activities will focus first on high-priority violators.
Therefore, the emphasis must be on those handlers.

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                               -15-
SECTION V

EPA ACTION IN AUTHORIZED STATES

     States with authorized programs have the primary responsibility
for ensuring compliance with the RCRA program requirements.
Nevertheless, Section 3008 of RCRA specifically provides SPA with
the authority to take enforcement action in authorized States.
     As discussed in a November 23, 1983 nemo from Lee Thomas and
Courtney Price to the Regional Administrators, it is EPA's policy
to take enforcement actions in authorized States when:

          0 the State asks EPA to do so, or

          8 the State fails to take timely and appropriate
            act ionV

     The previous section described what is considered timely and
appropriate action in response to various categories of violators.
The timelines set out in that chapter establish trigger points at
which EPA should initiate action if an authorized State has failed
to do so or has initiated an action that is not considered appro-
priate for the situation involved.  If the State has failed to
issue an order or complete a referral within (90) days after
discov-ry-of a high-priority violator (or (60) days after deciding
to issue an Order to a Class I violator), the Regional Office
should notify the State that EPA will take action.  The Regional
Office may also choose to assess a penalty against a high-priority
violator if the State's action failed to include one. 3/  The
Memorandum of Agreement (MOA) or Grant Agreement between EPA and
each State should set out the mechanism by which notice will be
provided.  Either written or telephone notice could be considered
acceptable.  The Regional Office may need to conduct its own case
development inspection, and prepare additional documentation
before proceeding to initiate an action.  Only if the State has
made reasonable progress in returning the facility to compliance
or in processing an enforcement action should the Region hold
off federal response when the timeline is not met by an authorized
State.
;V The Policy Framework identifies an additional circumstance under
which EPA will take action in an authorized State - a case that
would establish a legal precedent - although such cases are expected
to arise infrequently.
_V EPA may also consider assessing a penalty if it feels that the
penalty assessed by the State was egregiously small, as judged
according to the State's penalty policy or procedures established
by the State for determining penalty amounts.  Before initiating
any penalty-only action, EPA must weigh the benefit of that action
with the need to take action against handlers that are out
of compliance with applicable requirements.

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                          -16-
     To track State progress against the. "timely" and "appropriate"
criteria, the Regional Offices should .depend on the Compliance and
Enforcement Logs that are submitted monthly and on conversations
with appropriate State personnel.   The Regional Offices should review
the Logs each month and determine  not only which cases have failed
to meet the (30), (60), and (90)  day triggers but also which cases
that are in earlier stages are not proceeding expeditiously.

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                                     -17-
                    EXAMPLES 0? VIOLATION CLASSIFICATION
	Violation	Classification

Failure of a handler to meet a compliance                I
schedule In an Order, decree, agreement
or cermit
Construction of a new facility without a
permit
Failure of the generator to comply with
requirements relating to the manifest
system.
Failure of a generator to meet the packaging,
labeling^narking or placarding requirements
Failure to conply with the "small quantity
generator reauirements"
I
I
I
I
Failure of a transporter to comply with
the requirements for immediate action and
c 1 ean up of discharges	;	
Failure of the transporter to comply with
requirements relating to the manifest
svstea	
Failure of a facility owner/operator to
co.T.clv with manifest rsauirements
Failure of an owner/operator to conduct required
waste analyses	

Failure of an owner/operator to properly handle
l^nitaole, reactive or Incompatible wastes	

Failure to Install operate and maintain an
adequate ground-water monitoring system,
Inducing failure to begin assessment
'monitoring when required under the Interim
status regulations	

Self-granting, by an owner or operator,
"f an unjustifiable waiver, from
 ^round-water monitoring  requirements.	

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                                -18-
	Violation	Classification

Failure to iceet the closure performance              I
standard	

Failure to develop a complete and adequate           I
closure plan.	

Failure to-meet specified'standards Tor post-        I
closure care :	

Failure to develop a complete and adequate           I
post-closure clan

Failure to develop an adequate estimate of           I
closure and post-closure costs	

Failure to establish and maintain a financial        I
assurance mechanism for closure and post-closure
COSTS.	.	;	

Discrepancies In wording such that the financial     I
instrument is ineffective	        _     	

Improper cancellation of a bond by the surety.	T~"

Cancellation or reduction of value, without          I
R.A.'s consent, of surety bond or insurance
policy  	________________________________________

Failure to-include information regarding all         I
facilities that are covered by the sane
instrument

Failure to obtain or maintain coverage for           I
sudden accidental occurrences

Failure to obtain or maintain coverage for           I
nonsudden accidental occurrences.

Failure of owner/operator to submit                  I
a. timely and complete Part B appli-
cation                                                  •	

Storage of wastes in containers that                 I
are not in good condition or have
begun to leak	          	

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                                 -19-
	Violation    	Classification

Failure of an owner/operator to meet the        I
requirements regarding storage of
ignitable, reactive or incc-spatiale
wastes.	

Failure to provide for proper contain-          I
ment of leachate or runoff from a waste
pile	

Failure of an owner/operator to meet           I
applicable general operating requirements.	

Failure of a land treataent owner/              I
operator to meet the requirements
regarding food chain crops.	

Failure of a land treataent owner/              I
operator to prepare and plan for
monitoring of the unsaturated zone
or to monitor the unsaturated zone.
Failure of landfill owner/ operator
to properly dispose of containers.
Failure of a thermal treatment
facility to aeet the requirements
regarding open burning and waste
explosives .
Failure to submit the biennial reccrt
Failure of an owner/operator to
provide notice regarding interna-
tional shipments of hazardous wastes
Failure to provide required notices
regarding transfers of ownership or
foreign shioraents of waste
Failure 'to make emergency arrangements
with local 'authorities
•
Failure to maintain copy of
closure olan at the facilitv
Failure to meet the timeframes
set out for facility closure
, I
I "
TT
II
II
II
II
II

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