United Stales
Environmental Protection
Agency
Ofl.ce of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9 9 C 2 - 5
7ITLE'Interim Final Model Section 3008(h)
Administrative Order on Consent
APPROVAL DATE. 1/19/88
EFFECTIVE DATE: 1/19/88
ORIGINATING OFFICE: OWPE
D FINAL Interim Final
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or OAA
D B — Signed by Office Director
D C — Review & Comment
REFERENCE (other documents):
S WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
> EPA
DIRECTIVE NUMBER: 9902,5
TITLE'Interim Final Model Section 3008(h)
' Administrative Order on Consent
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE: OWPE
D FINAL Interim Final
D DRAFT
LEVEL OF DRAFT
DA — Signed by AA or DAA
D B — Signed by Office Director
D C — Review & Comment
REFERENCE (other documents):
WER OS WER OS WER
DIRECTIVE DIRECTIVE Dl
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&EPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
1. Directive Number
9902.5
2. Originator Information
^lame of Contact Person
Jackie Tenusak
Mail Code
WH-527
Office
OWPE
Telephone Code
202-475-8729
3. Title
Interim Final Model Section 3008(h) Administrative Order on Consent
4. Summary of Directive (include brief statement of purpose) .. .
This $3008 (h) administrative order on consent contains general language
to assist regional personnel with drafting of $3008 (h) consent orders.
Among provisions included are those dealing with Jurisdiction, Findings
of Fact, and conclusions of Law & Determinations.
5. Keywords „ , . . , . . .
Administrative Order on Consent, Respondent, Jurisdiction
6a. Does 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
B - Signed by Office Director
C -- For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature-of Lead Office Directives Coordinator
Date
10. Name and Title of Approving Official
Date
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER 0
VE DIRECTIVE DIRECTIVE DIRECTIVE
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0 C.
-'< i 9 I9cc
C '-' ^
30LIO WAS7C i\.O t
MEMORANDUM
SUBJECT: Interim Fi"..il 9CPA Section 300S(h
Model Consent Orrier
' /•• A
FROM: Gene A. Lucero, Di rec tor(j?<^4t/ fl '
Office Of Waste Programs Enforcement
TO: Waste Management Division Directors
RCRA Enforcement Branch Chiefs
CERCLA. Enforcement Branch Chiefs
RCRA Enforcement Section Chiefs
Office Of Regional Counsel
Regions I-X
Attached is the Interim Final RCRA Section 3Q08(h) Model
Consent Order. This order contains general language that should
be included in consent orders. Please refer -.o other guidance
documents, such as the Interim Final Correct-. '9 Action Plan,
OSWER Directive 9902, or the RCRA Corrective '-ction Interim
Measures Guidance, OSWER Directive 9902.4, f- model technical
language and assistance with the specific wor . an owner or operator
must perform as part of a corrective action program.
I would like to thank those of you who commented and offered
suggestions on the draft model order, with special thanks to OECM
for their assistance and concurrence. Your comments have been
extremely helpful. You may direct any questions you have regarding
the model consent order and how it should be used in specific
situations to your Regional Coordinator or members of the
Headquarters $3008(h) review team.
Please contact Jackie Tenusak at FTS 475-8729, if you would
like a copy of this order on disk.
Attachment
cc: Gene Lucero
Marcia Williams
Henry Longest
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'//J-
9902.5
CONFIDENTIAL
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION [Number] •
IN THE MATTER OF:
[Name of Owner/Operator]
[Name, Address and
EPA I.D.# of Facility],
RESPONDENT.
ADMINISTRATIVE ORDER ON CONSENT
U.S. EPA Docket No.
[Number]
Proceeding under Section
3008(h) of the Resource
Conservation and Recovery
Act, as amended, 42 U.S.C.
§6928(h).
[All Orders should include provisions dealing with Jurisdiction, Findings of
Fact, Conclusions of Law and Determinations, and the requirements of the
Order itself. It is of utmost importance that you develop an administrative
record that will support the facts alleged in the Order. Each of these
provisions will vary from Order to Order as discussed below.]
I. JURISDICTION
This Administrative Order on Consent ("Consent Order") is issued pursuant
to the authority vested in the Administrator of the United States Environmental
Protection Agency ("EPA") by Section 3008(h) of the Solid Vfeste Disposal Act,
commonly referred to as the Resource Conservation and Recovery Act of 1976
("RCRA"), as amended by the Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. §6928(h). The authority vested in the Administrator has been delegated
to the Regional Administrators by EPA Delegation Nos. 8-31 and 8-32 dated
April 16, 1985, and has been further delegated by the Regional Administrator for
Region [Number] to [Title].
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9902.5
This Consent Order is issued to [corporate/individual name] ["Respondent"]/
the owner/operator of [Name and address of Facility] ["Facility"]. Respondent
consents to and agrees not to contest EPA's jurisdiction to issue this Consent
Order and to enforce its terms. Further, Respondent will not contest EPA's
jurisdiction to: compel compliance with this Order in any subsequent enforcement
proceedings, either administrative or judicial; regaire Respondent's full or
interim compliance with the terms of this Consent Order; or impose sanctions
for violations of this Consent Order.
II. PARTIES BOUND
1. This Consent Order shall apply to and be binding upon Respondent and
its officers, directors, employees, agents, successors and assigns, and upon
all persons, independent contractors, contractors, and consultants acting under
or for Respondent.
2. No change in ownership or corporate or partnership status relating to
the Facility will in any way alter Respondent's responsibility under this
Consent Order.
3. Respondent shall provide a copy of this Consent Order to all contractors,
subcontractors, laboratories, and consultants retained to conduct or monitor any
portion of the work performed pursuant to this Consent Order within one (1) week
of-the effective date of this Consent Order or date of such retention, and shall
condition all such contracts on compliance with the terms of this Consent Order.
4. Respondent shall give notice of this Consent Order to any successor in
interest prior to transfer of ownership or operation of the Facility and shall
notify EPA within [number] days prior to such transfer.
III. STATEMENT OF PURPOSE
[NOTE: This section should clearly state the objectives of this Consent
Order.]
In entering into this Consent Order, the mutual objectives of EPA and
[Corporate/individual name] are: [Describe objective of Order, e.g., (1) to
perform Interim Measures (IM) at ["Facility"] to relieve threats to human
health or the environment, (2) to perform a RCRA Facility Investigation (RFI)
to determine fully the nature and extent of any release of hazardous waste and
hazardous constituents at or from the hazardous waste management facility in
[location]; (3) to perform a Corrective Measure Study (CMS) to identify and
evaluate alternatives for the corrective action necessary to prevent or mitigate
any migration or releases of hazardous wastes or hazardous constituents at or
from the Facility; and (4) to implement the corrective measure or measures
selected by EPA at ["Facility"]].
IV. FINDINGS OF FACT
1. Respondent is a company doing business in the State of [State] and is
a person as defined in section 1004(15) of RCRA, 42 U.S.C. §6903(15), and
[cite appropriate State statute and/or regulation if the State
has been authorized pursuant to RCRA Section 3006].
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9902.5
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2. Respondent is [a generator and] an owner and/or operator of a hazardous
waste management facility located at [location]. Respondent engaged in [treatment,
storage, or disposal] of hazardous waste at the Facility subject to interim
status requirements [40 CFR Part 265] [and, if the State has been authorized
pursuant to RCRA Section 3006, as those terms are defined in appropriate state
regulations]. [Specify type of operation—landfill, incinerator etc.].
3. Respondent owned and/or operated its Facility as a hazardous waste
management facility on and after November 19, 1980 (or the date of any statutory
or regulatory change rendering the facility subject to the requirement to
obtain a RCRA permit), the applicable date which renders facilities subject to
interim status requirements or the requirement to have a permit under §§ 3004
and 3005 of RCRA, 42 U.S.C. §§6924, 6925.
4. Pursuant to Section 3010 of RCRA, 42 U.S.C. §6930, Respondent notified
EPA of its hazardous waste activity. In its notification dated [date], Respondent
identified itself as a [generator of hazardous waste and/ or an owner/operator
of a treatjnent, storage, and/or disposal facility for hazardous waste],
5. In its [Name of Facility submission/notification or Part A permit
application] dated [date], Respondent identified itself as handling the following
hazardous wastes at the Facility:
[Note: The Order should identify the hazardous waste handled at the
facility, as well as the hazardous waste management units and solid waste
management units. This information should help to establish a connection
between the Respondent's activity and the release of hazardous waste/
constituents, vftiere possible, specify waste codes that are contributing
directly to the releases documented in the Findings of Fact. Examples of
where this information might be obtained are: a Part A, Part B, Exposure
Information Report, Inspection Report, RFA, etc.]
Example
(a) Hazardous wastes exhibiting the characteristics of ignitability,
corrosivity, reactivity or EP toxicity identified at 40 CFR §261.20-§261.24;
(D001-D017)
(b) Hazardous wastes from non-specific sources identified at 40 CFR
§261.31; (F001-F028)
(c) Hazardous wastes from specific sources identified at 40 CFR §261.32;
(K001-K106)
(d) Commercial chemical products, manufacturing chemical intermediates,
off-specification commercial chemical products, or manufacturing chemical
intermediates identified at 40 CFR §261.33(e); (PCO1-P123); and
(e) Commercial chemical products, manufacturing chemical intermediates,
off-specification commercial chemical products, or manufacturing chemical
intermediates identified at 40 CFR §261.33(f) (U001.U249).
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9902.5
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6. Respondent's Facility includes:
[Note: Describe location and units regulated 'under RCRA Subtitle C
and other Solid Waste Management Units generally. Note lack of liners
on land disposal units. Attach a copy of a facility map from Permit
application if available. Focus on and provide more detail on the
unit(s) where a release has occurred and which are the specific subjects
of this Consent Order. Include material relating to:
0 Size of facility
8 Facility layout - legible map/schematic may be appropriate
with ground-water monitoring wells indicated
0 Number and type of units and operating status
0 Specific current and past uses of different
units
0 Specific wastes received or handled at specific units
0 Geological conditions
0 Ground-water flow conditions.]
7. Documentation of Release
(NOTE: After having described the facility, it is necessary
to establish and document that a release of hazardous wastes
or hazardous constituents into the environment has occurred.
In addition, there needs to be a discussion that supports the
premise of the Order that the response as described and
required in Section IV below, is necessary to protect human
health or the environment.)
Sources of release information can be:
[NOTE: Be sure to cite your references properly]
8 Results of an inspection (RFA, CME, CEI);
0 Company submittal of a ground-water assessment
report;
0 Other data/information submitted by Respondent
(e.g., Part B submittal, exposure information report)
or developed by EPA'(e.g., sampling analyses);
0 Knowledge of disposal into units not designed,
constructed or operated to prevent releases; and
0 Data collected by company pursuant to prior EPA or State
enforcement action.
Example
Ground-water monitoring wells have been installed at Respondent's Facility.
Respondent has identified wells [number/identification code] as being up-gradient
from [describe disposal unit/s]. Respondent has identified wells [number/
identification code] as being down-gradient from [describe disposal unit].
Samples of ground water from these wells have been analyzed to determine
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9902.5
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contamination of ground water. Samples were collected by EPA personnel from
ground-water monitoring wells, #8, 416, #24, #32. The results were as follows:
Well # Sampling Date Organics Concentration
8 • Aug. 14, 1985 Phenol 4,000 ppn
16 Aug. 17, 1985 Phenol 2,000 ppn
24 Sept. 9, 1985 Phenol 3,200 ppn
32 Sept. 9, 1985 Phenol • 1,000 ppn
[NOTE: The chart should be concise, although multiple charts
can be used if sufficient information is available. Only
applicable data needed to support the Order should be included,
seme of which could be an attachment to the Order. Information
such as chain of custody sheets, log analysis reports, QA/QC
reports should not be attached to the Order or referenced.
However, these forms should be identified and maintained in
the administrative record.
Data other than ground-water data, e.g., soil and surface water
should be used if available. Such data should provide information
comparable to that provided in the above table, i.e., medium sampled,
location and dates of sampling, the substances found, and their
concentrations. Further, Respondent's results can be used in lieu
of or in addition to EPA's if they support the Agency's case and are
deemed reliable.
Circumstantial evidence may also be used to support the finding
that there is a release. Such evidence includes historical treatment,
storage or disposal practices, the nature and design of storage or
disposal areas, and/or company admissions.]
8. Hazardous wastes and/or hazardous constituents may further
migrate from the Facility into the environment in the following pathways:
[NOTE: Often, little hydrogeologic data is available prior to
the RFI/CMS study. If this information is available, you may want
to link the release of hazardous wastes or hazardous constituents
to human or environmental concerns. It is important to define
migration pathways, noting and distinguishing between actual and
potential receptors - human, wildlife, vegetation, etc.]
9. The hazardous wastes and/or hazardous constituents identified in
paragraph seven above (may) pose(s) a threat to human health and the
environment, [describe carcinogenic/toxic characteristics].
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[NCTE: The Order is further strengthened by, and should include,
a description of the toxic, carcinogenic, and hazardous properties
of the contaminants. The Order should include health effects
documentation, if available. In particular, if the Order reguires
extensive activities (e.g., removal of materials or closure of units),
then the documentation of health effects and migration pathways must
support the more extensive activity required. An endangerment
assessment is not needed to support the issuance of this Order].
10. Respondent's Facility is located [Describe residences, aquifers,
domestic water supplies, river/lake used for recreational purposes, wells
[including number and type of use], fragile environment, etc. and their distance
and location with respect to the facility].
[NOTE: Health and environmental concerns are very broad and include
aquifers that may be used in the future.]
11. Releases from Respondent's Facility (are likely to/have) migrate(d)
toward [Describe present and future potential and actual receptors].
V. CONCLUSIONS OF LAW AND DETERMINATIONS
Based on the Findings of Fact set out above, and after consideration of the
administrative record, the Regional Administrator [or Division Director, if
delegated] EPA Region [Number], has made the following conclusions of law and
determinations:
1. Respondent is a "person" within the meaning of Section
1004(15) of RCRA, 42 U.S.C. $6903(15);
2. Respondent is/was the owner or operator of a facility that has
operated or is operating subject to § 3005(e) of RCRA, 42 U.S.C. §6925(e).
3. Certain wastes and constituents thereof found at the Facility are
hazardous wastes or hazardous constituents thereof as defined by §1004(5) of
RCRA, 42 U.S.C. §6903(5). These are also hazardous wastes or hazardous
constituents within the meaning of §3001 of RCRA, 42 U.S.C. §6921 and 40
C.F.R. Part 261.
4. There is or has been a release of hazardous wastes and/or hazardous
'constituents into the environment fron Respondent's Facility.
5. The actions required by this Consent Order are necessary to protect
human health or the environment.
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VI. WORK TO BE PERFORMED
[NOTE: This is an example which should be modified as appropriate
depending upon the situation at the facility. The suggested method
for organizing and developing the "Work To Be Performed" section of
the Order is to provide a scope of work or a series of scopes of work
describing the requirements for the Interim Measures, RCRA Facility
Investigation, Corrective Measures Study and/or Corrective Measures
Implementation. These scope(s) of work should be referenced in the
Consent Order and appended to same. If sufficient resources and
information about the facility exists, an alternative and preferable
approach is to negotiate detailed, facility-specific workplan(s) with
the respondent and to attach the workplan(s) rather than the scope(s)
of work to the Order.
See the RCRA Corrective Action Interim Measures, Interim Final, OSWER
Directive Number 9902.4, June 10, 1987 and RCRA Corrective Action Plan
(CAP), Interim Final, OSWER Directive Number 9902.3, November 14, 1986
for detailed guidance and model language for developing these scope(s) of
work.
It is important to clearly describe what the Respondent must
do? have a detailed compliance schedule (specify calendar or working days)'
with milestones so that there are no unnecessary disputes.]
Pursuant to §3008(h) of RCRA, 42 U.S.C. §6928(h), Respondent agrees and
is hereby ordered to perform the following acts in the manner and by the dates
specified herein. All work undertaken pursuant to this Consent Order shall be
performed in a manner consistent with, at a minimum: the attached Scope[s] of
Work; the [EPA-approved Interim Measures Wbrkplan, RCRA Facility Investigation
Workplan, Corrective Measures Implementation Program Plan, and all other Wbrk-
plans]; RCRA and its implementing regulations; and applicable EPA guidance
documents. Relevant EPA guidance should be identified by name, number and
date in the Consent Order. Relevant guidance may include, but is not limited
to, the "RCRA Facility Investigation (RFI) Guidance" (EPA 530/SW-87-001),
"RCRA Ground-water Monitoring Technical Enforcement Guidance Document" (OSWER
Directive 9950.1, September 1986), "Test Methods For Evaluating Solid Waste"
(SW-846, November 1986) and "Construction Quality Assurance for Hazardous
Waste Land Disposal Facilities" (EPA 530/SW-85-031, July 1986).]
INTERIM MEASURES (IM)
[Note: There are three basic strategies that can be used to develop Interim
Measures provisions for the Consent Order:
a. compel the Respondent to immediately implement specific actions (use
paragraph 1); or
b. reguire the submission of plan(s) to be implemented upon EPA approval
or modification (use paragraphs 2, 3 and 4); and
c. reguire the Respondent to notify EPA when any situation occurs which
may reguire Interim Measures and reserve EPA's rights to compel the
implementation of Interim Measures (use paragraphs 5, 3 and 4).
One or more of the strategies will be appropriate at a facility depending
on the immediacy and magnitude of the threat to human health and the
environment, the nature of the appropriate corrective action, the impli-
cation of deferring the corrective action, and the ability of the
Respondent to perform the work.
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1. The Respondent shall perform the Interim Measures in a manner consistent
with the IM Scope of Work and schedule contained in Attachment [number] to this
Consent Order, which is incorporated by reference as if fully set forth herein.
The Interim Measures to be undertaken by the Respondent at the facility shall
include: [e.g. As of the effective date of this Consent Order the Respondent
shall cease to place any material in surface impoundment Z. The Respondent
shall close surface impoundment Z in accordance with the schedules and provisions
contained in the EPA approved closure plan for surface impoundment Z.] The
Interim Measures shall be implemented in accordance with, at a minimum, RCRA,
its implementing regulations, and relevant EPA guidance documents. Relevant
guidance may include, but is not limited to: [Relevant EPA guidance should be
identified by name, number and date in the Order],
2. within [number] days of the effective date of this Consent Order,
Respondent shall submit to EPA an IM Wbrkplan for the implementation of Interim
Measures ["IM Wbrkplan"]. The IM Wbrkplan is subject to approval by EPA and
shall be performed in a manner consistent with the IM Scope of Work in Attachment
[number] to this Consent Order, which is incorporated as if fully set forth
herein. The IM Wbrkplan shall be developed in accordance with, at a minimum,
RCRA, its implementing regulations, and relevant EPA guidance documents.
Relevant guidance may include, but is not limited to: [Relevant EPA guidance
should be identified by name, number and date in the Order].
3. The IM Wbrkplan shall ensure that the Interim Measures are designed to
mitigate a current or potential threat(s) to human health or the environment
and are consistent with and integrated into any long term solution at the
facility. The IM Wbrkplan shall document the procedures to be used by the
Respondent for the implementation of Interim Measures and shall include, but
not be limited to: the objectives of the Interim Measures; design, construction,
operation, monitoring and maintenance requirements; and detailed schedules.
[Note: The model IM Scopes of Wbrk provided as appendices to the RCRA
Corrective Action Interim Measures guidance should be modified based
on facility-specific information so as to foster timely action by
the Respondent.]
4. In accordance with Attachment [number] herein, the IM Wbrkplan shall
include: Interim Measures Objectives; a Health and Safety Plan; a Public Invol-
vement Plan [Note this is referenced as the "Community Relations Plan" in the
RCRA Corrective Action Interim Measures guidance] ; a Data Collection Quality
Assurance Plan; a Data Management Plan; Design Plans and Specifications; a
Operation and Maintenance Plan; a Project Schedule; an Interim Measure Construction
Quality Assurance Plan; and Reporting Requirements.
5. In the event the Respondent identifies a current or potential threat to
human health or the environment, the Respondent shall immediately notify EPA
orally and in writing within [number] days, summarizing the immediacy and
magnitude of the potential threat to human health or the environment. Within
[number] days of notifying EPA, the Respondent shall submit to EPA an IM Wbrkplan
for approval that identifies Interim Measures which mitigate this threat and are
consistent with and integrated into any long term solution at the Facility.
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RCRA FACILITY INVESTIGATION (RFI)
[Note: The model RFI Scope of Work provided in the RCRA
Corrective Action Plan should be modified based on facility
specific-conditions so as to foster timely, concise and
accurate submissions by the Respondent.)
6. Within [number] days of the effective date of this Consent Order,
Respondent shall submit to EPA an RFI Wbrkplan for a RCRA Facility Investi-
gation ("RFI Wbrkplan"]. The RFI workplan is -subject to approval by EPA and
shall be performed in a manner consistent with the RFI Scope of Work contained
in Attachment [number]. Attachment [number] to this Consent Order is incorpor-
ated by reference as if fully set forth herein. The RFI Wbrkplan shall be
developed in accordance with, at a minimum, RCRA, its implementing regulations,
and relevant EPA guidance documents. Relevant EPA guidance may include, but
is not limited to: [Relevant guidance should be identified by name, date and
number in the Order.]
7. The RFI Workplan shall be designed to define the presence, magnitude, • •
extent, direction, and rate of movement of any hazardous wastes or hazardous
constituents within and beyond the Facility boundary. The RFI Wbrkplan shall
document the procedures the Respondent shall use to conduct those investivations
necessary to: (1) characterize the potential pathways of contaminant migration;
(2) characterize the source(s) of contamination; (3) define the degree and
extent of contamination; (4) identify actual or potential receptors; and (5)
support the development of alternatives from which a corrective measure
will be selected by EPA. A specific schedule for implementation of all activities
shall be included in the RFI Wbrkplan.
8. In accordance with the provisions of Attachment [number] herein, the
RFI Wbrkplan shall include: (1) a Project Management Plan; (2) a Data Collection
Quality Assurance Plan; (3) a Data Management Plan; (4) a Health and Safety
Plan; and (5) a Public Involvement Plan [Note: This is referenced as the
"Comrunity Relations Plan" in the RCRA Corrective Action Plan].
CORRECTIVE MEASURES STUDY (CMS)
9. Upon completion of the RCRA Facility Investigation, the Respondent shall
conduct a Corrective Measure Study in accordance with the CMS Scope of Work in
Attachment [number]. Attachment [number] to this Consent Order is incorportated
by reference as if fully set forth herein.
[NOTE: In certain stituations, it may be appropriate to require the
Respondent to submit a CMS Wbrkplan prior to performing the Corrective
Measure Study, to assure that the work will progress in a timely,
efficient manner. This provision was not included in the RCRA
Corrective Action Plan.]
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CORRECTTVE MEASURES IMPLEMENTATION (Oil)
[NOTE: If CMI is covered in this Consent Order, you should use
the following paragraphs, numbers 10 and 11. If, however,
corrective measures implementation is not covered in this
Consent Order, you should include this as a separate section
and use.the following language: Upon EPA's selection of
the corrective measure, if Respondent has complied with the
terms of this Consent Order, EPA shall provide a [number]
day period for negotiation of an administrative order on
consent (or a judicial consent decree) for implementation of
the selected corrective measure.]
10. Within [number] days of Respondent's receipt of notification of
EPA's selection of the corrective measure, Respondent shall submit to
EPA a Corrective Measures Implementation Program Plan ["CMI Program Plan"].
The CMI Program Plan is subject to approval by EPA and shall be performed
in a manner consistent with the CMI Scope of Work contained in Attachment
[number]. Attachment [number] to this Consent Order is incorporated by
reference as if fully set forth herein. The CMI Program Plan shall be
developed in accordance with, at a minimum, RCRA, its implementing regul-
ati9ns, and relevant EPA guidance documents. Relevant EPA guidance may
include, but is not limited to: [Relevant guidance should be identified
'by name, date and number in the Order).
11. The CMI Program Plan shall be designed to facilitate the design,
construction, operation, maintenance and monitoring of corrective measure
at the at the Facility. In accordance with Attachment [number] herein,
the CMI Program Plan shall also include: (1) a Program Management
Plan; (2) a Community Relations Plan (3) Design Plans and Specifications;
(4) an Operation and Maintenance Plan; (5) a Cost Estimate; (6) a Project
Schedule; (7) a Health and Safety Plan; and (8) a Construction Quality
Assurance Plan.
SUBMISSIONS/AGENCY APPROvAI/ADDITIONAL WORK
[NOTE: Paragraphs 12 through 18 cover the submission to and approval
by the Agency of workplans and preliminary and final reports,
submission of progress reports, standards the Respondent must meet
in the performance of work, and the Agency's right to approve/
disapprove of work that is performed. It is important to clearly
describe what the Respondent must do; have a detailed compliance
schedule with milestones so that there are no unnecessary disputes.]
12. Within [number] days of approval/disapproval or modification
by EPA of any [Wbrkplan(s) or Program] Plan, Respondent shall commence
work and implement the tasks required by the Wbrkplan(s) or Program Plan
submitted pursuant to the Scope(s) of Wbrk contained in Attachment [number],
in accordance with the standards, specifications and schedule stated in the
Wbrkplan(s) or Program Plan as approved or modified by EPA.
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13. Beginning with the month following the effective date of this
Consent Order, Respondent shall provide EPA with progress reports for
[specify frequency, i.e., each month on the tenth day of the following
month,]. The progress reports shall conform to requirements in relevant
Scope(s) of Work contained in Attachment [number]. [Note: Model language
for this provision is included in the RCRA Corrective Action Plan.]
14. Respondent shall provide draft and final [insert, as appropriate:
Interim Measures, RCRA Facility Investigation, Corrective Measure Study
and Corrective Measure Implementation] reports to EPA in accordance with
the schedule contained in this Consent Order and its attachments.
15. EPA will review all draft or final' reports, and notify
Respondent in writing of EPA's approval/disapproval or modification
of the report or any part thereof. In the event of any disapproval, EPA
shall specify in writing the deficiencies and reasons for such disapproval.
Within [number] days of the receipt of EPA's disapproval of any report,
Respondent shall amend and submit a revised report. EPA approved reports
shall be deemed incorporated into and part of this Consent Order.
16. [Number] copies of all documents, including Wbrkplan(s), Program
Plan(s), preliminary and final reports, progress reports, and other
correspondence to be submitted pursuant to this Consent Order shall be
hand delivered or sent by certified mail, return receipt requested, to
the Project Coordinator designated pursuant to Section [Number] of this
Consent Order.
17. All work performed pursuant to this Consent Order shall be under
the direction and supervision of a professional engineer or geologist with
expertise in hazardous waste site cleanup. On or before the effective date
of this Consent Order, Respondent shall notify EPA in writing of the name,
title, and qualifications of the engineer or geologist, and of any contractors
or subcontractors and their personnel to be used in carrying out the terms of
this Consent Order.
[NOTE: Under certain circumstances, new findings may indicate
that additional work must be done to protect human health and
the environment.]
18. EPA may determine that certain tasks, including investigatory
work or engineering evaluation, are'necessary in addition to the tasks
and deliverables included in the [Insert appropriate plan: e.g., IM
Wbrkplan, the RFI Wbrkplan, the CMI Program Plan] when new findings
indicate that such additional work is necessary. EPA shall request in
writing that Respondent perform the additional work in this situation
and shall specify the basis and reasons for EPA's determination that the
additional work is necessary. Within [Numbers] days after the receipt
of such request, Respondent shall have the opportunity to meet with EPA
to discuss the additional work EPA has requested. Thereafter, Respondent
shall perform the additional work EPA has requested according to an EPA
approved Workplan. All additional work performed by Respondent under
this paragraph shall be performed in a manner consistent with this Consent
Order.
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VII. QUALITY ASSURANCE
Throughout all sample collections and analysis activities, Respondent
shall use EPA-approved quality assurance, quality control, and chain-of-
custody procedures as specified in the approved [insert, as appropriate,
Workplans and Program Plans, Scope(s) of work]. In addition, Respondent •
shall:
1. Ensure that laboratories used by Respondent for analyses perform
such analyses according to the EPA methods included in "Test Methods for
Evaluating Solid Vfeste (SW-846, November 1986) or other methods deemed
satisfactory to EPA. If methods other than EPA methods are to be used,
Respondent shall submit all protocols to be used for analyses to EPA for
approval within [Number] days prior to the commencement of analyses.
2. Ensure that laboratories used by Respondent for analyses
participate in a quality assurance/quality control program equivalent to
that which is followed by EPA. As part of such a program, and upon
request by EPA, such laboratories shall perform analyses of samples
provided by EPA to demonstrate the quality of the analytical data.
VIII. PUBLIC COMMENT AND PARTICIPATION
[NOTE: Public participation is required after the CMS has been
submitted and the Agency has proposed that a particular corrective
measure be implemented. At that time, before implementation of
the corrective measure, the public shall be given an opportunity
to comment on what the Agency has proposed. Changes in the
corrective measure may be made after consideration of public
comment. The Agency must issue a responsiveness summary. If the
public is interested, a public meeting may be held. Additional
public involvement activities may be necessary, based on site-
specific circumstances. See Directive 9901.3 "Guidance for Public
Involvement In RCRA Section 3008(h) Actions."]
1. Upon approval by EPA of a Corrective Measure Study Final Report,
EPA shall make both the RCRA Facility Investigation Final Report (or
summary of report) and the Corrective Measure Study Final Report (or
summary of report) and a summary of EPA's proposed corrective measure
and EPA's justification for proposing selection of that corrective measure
available to the public for review'and comment for at least twenty-one
(21) days.
2. Following the public review and comment period, EPA shall
notify Respondent of the corrective measure selected by EPA. If the
corrective measure recommended in the Corrective Measure Study Final
Report is not the corrective measure selected by EPA after consideration
of public comments, EPA shall inform Respondent in writing of the
reasons for such decision, and the Respondent shall modify the RFI/CMS
based upon public comment if directed to do so by EPA.
3. The Administrative Record supporting the selection of the corrective
measure will be available for public review at [place] from [time].
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IX. ON-SITE AND OFF-SITE ACCESS
[NOTE: Provisions requiring the Respondent to give EPA
and its designated representatives access to the site
and to relevant records must be included in the Order.
Such provisions should also set forth, as deemed neces-
sary, the Respondent's responsibilities with respect to
gaining access to third party property. Documentation of
efforts to obtain access to adjoining properties should
be included as a task in the Wbrkplan if off-site activities
are necessary for completion of any tasks required pursuant
to the Order. Failure to obtain access will change the
scope of the Wbrkplan. The following composite provision
incorporates most of the relevant requirements.)
1. EPA and/or any EPA representative are authorized to enter and freely
move about all property at the Facility during the effective dates of this
Consent Order for the purposes of, inter alia; interviewing Facility personnel
and contractors; inspecting records, operating logs, and contracts related to
the Facility; reviewing the progress of the Respondent in carrying out the
terms of this Consent Order; conducting such tests, sampling or monitoring as . .
EPA or its Project Coordinator deem necessary; using a camera, sound recording,-
or other documentary type equipment; and verifying the reports and data submitted
to EPA by the Respondent. The Respondent shall permit such persons to inspect
and copy all records, files, photographs, documents, and other writings, including
all sampling and monitoring data, that pertain to work undertaken pursuant to
this Consent Order. The respondent shall comply with all approved health and
safety plans.
2. To the extent that work required by this Consent Order, or by any approved
[insert as appropriate: Scope(s) of work, Program Plan, Workplan] prepared
pursuant hereto, must be done on property not owned or controlled by Respondent,
Respondent shall use its best efforts to obtain site access agreements from
the present owner(s) of such property within [number] days of approval of any
[Wbrkplan] for which site access is required. Best efforts as used in this
paragraph shall include, at a minimum, a certified letter from Respondent to
the present owners of such property requesting access agreements to permit
Respondent and EPA and its authorized representitives to access such property.
Any such access agreement shall be incorporated by reference into this Consent
Order. In the event that agreements for access are not obtained within [number]
days of the effective date of this Consent Order, Respondent shall notify EPA
in writing within [number] days thereafter regarding both the efforts 'undertaken
to obtain access and its failure to obtain such agreements.
3. Nothing in this section limits or otherwise affects EPA's right of
access and entry pursuant to applicable law, including RCRA and CERCLA.
X. SAMPLING AND DATA/DOCUMENT AVAILABILITY
[Site-specific sampling and analysis requirements must be
included in the Order. The following is a sample provision.]
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1. The Respondent shall submit to EPA the results of all sampling •
and/or tests or other data generated by, or on behalf of the Respondent,
in accordance with the requirements of this Consent Order and its attachments.
2. Respondent shall notify EPA at least (Number) days before engaging
in any field activities, such as well drilling, installation of equipment, or
sampling. At the request of EPA, Respondent shall provide or allow EPA or
its authorized, representative to take split samples of all samples collected
by Respondent pursuant to this Consent Order. Similarly, at the request of
Respondent, EPA shall allow Respondent or its authorized representatives
to take split or duplicate samples of all samples collected by EPA under this
Consent Order. EPA will notify Respondent at least (Number) days before
conducting any sampling 'under this Consent Order.
i
3. Respondent may assert a business confidentiality claim covering all
or part of any information submitted to EPA pursuant to this Consent Order. Any
assertion of confidentiality shall be adequately substantiated by Respondent
when the assertion is made. Information determined to be confidential by EPA
shall be disclosed only to the extent permitted by 40 CFR Part 2. If no such
confidentiality claim accompanies the information when it is submitted to EPA,
it may be made available to the public by EPA without further notice to the
Respondent. Respondent agrees not to assert any confidentiality claim with
regard to any physical or analytical data.
XI. RECORD PRESERVATION
Respondent agrees that it shall preserve, during the pendency of this
Consent Order and for a minimum of (at least 6 years) years after its termin-
ation, all data, records and documents in its possession or in the possession
of its divisions, officers, directors, employees, agents, contractors, successors
and assigns which relate in any way to this Consent Order or to hazardous waste
management and/or disposal at the Facility. After [number] years, Respondent
shall make such records available to EPA for inspection or shall provide copies
of any such records to EPA. Respondent shall notify EPA 30 days prior to the
destruction of any such records, and shall provide EPA with the opportunity to
take possession of any such records.
XII. PROJECT COORDINATOR
1. On or before the effective date of this Consent Order, EPA and
Respondent shall each designate a Project Coordinator. Respondent shall'notify
EPA in writing of the Project Coordinator it has selected. Each Project
Coordinator shall be responsible for overseeing the implementation of this
Consent Order. The EPA Project Coordinator will be EPA's designated repre-
sentative at the Facility. All communications between Respondent and EPA,
and all documents, reports, approvals, and other correspondence concerning the
activities performed pursuant to the terms and conditions of this Consent
Order, shall be directed through the Project Coordinators.
2. The parties agree to provide at least (Number) days written notice
prior to changing Project Coordinators.
3. If EPA determines that activities in compliance or noncompliance
with this Consent Order, have caused or may cause a release of hazardous
waste, hazardous constituent, or a pollutant or contaminant, or a threat to
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the public health or to the environment, EPA may order Respondent to stop
further implementation of this Consent Order for such period of time as may be
needed to abate any such release or threat and/or to undertake any action
which EPA determines is necessary to abate such release or threat.
4. The .absence of the EPA Project Coordinator from the Facility shall
not be cause for the stoppage of work.
XIII. NOTIFICATION
Unless otherwise specified, reports, correspondence, approvals,
disapprovals, notices or other submissions relating to or required under
this Consent Order shall be in writing and shall be sent to:
1. [Number] copies of all
documents to be submitted
to the U.S. EPA should be
sent to:
[EPA Project Coordinator]
US EPA, Region (Number)
Address
2. Documents to be submitted
to the Respondent should be
sent to:
[Facility Project Officer]
Address
XIV. DELAY IN PERFORMANCE/STIPULATED PENALTIES
[NOTE: This provision includes both stipulated and.statutory penalties.
Provisions covering stipulated penalties may vary in dollar amounts
and time frame depending upon the circumstances. Different stipulated
penalty amounts may be set for different types of requirements under
the Order, with the amount related to the importance of the task.
Stipulated amounts should include escalators as the length of non-
compliance time continues. The following is a sample provision.]
1. Unless there has been a written modification of a compliance date by
EPA, or excusable delay as defined under the "Force Majeure and Excusable
Delay," provision, in the event Respondent fails to meet any requirement set
forth in the Consent Order, Respondent shall pay stipulated penalties as set
forth below. Compliance by Respondent shall include completion of an activity
under this Order or a plan approved under this Order or any matter under this
Order in an acceptable manner and within the specified time schedules in and
approved under this Order.
a. For failure to camence work as prescribed in this Consent Order:
[$] per day for one to seven days of delay, and [$] per day for
each day of delay, thereafter?
b. For failure to submit any preliminary and final reports, at the
time required pursuant to this Consent Order: [SI per day for the first
one to seven days of delay, and [$] per day for each day of delay,
thereafter;
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c. For failure to submit progress reports, at the time required pursuant to
this Consent Order: [$] per day for the first one to seven days of delay,
and [$) per day for each day of delay, thereafter;
d. For failure to submit other deliverables required by this Consent
Order: [SJ for the first one to seven days, and [$] for each seven-
day delay, or part thereof, thereafter;
e. For other failure to comply with provisions of this Consent Order
after notice by EPA of non-compliance: ($) for the first one
to seven days, and (S) for each seven-day delay, or part thereof,
thereof.
2. All penalties shall begin to accrue on the date that complete
performance is due or a violation occurs, and shall continue to accrue through
the final day or correction of the noncompliance. Nothing herein shall prevent
the simultaneous accrual of separate penalties for separate vilations of this
Order.
3. All penalties owed to EPA under this Section shall be due within
thirty (30) days of receipt of a notification of noncompliance. Such
notification shall describe the noncompliance and shall indicate the amount
of penalties due. Interest shall begin to accrue on the unpaid balance at
the end of the thirty-day period.
4. All penalties shall be made payable by certified or cashier's check to
the Treasurer of the United States of America and shall be remitted to:
Regional Hearing Clerk
U. S. Environmental Protection Agency,
[Insert appropriate lockbox depository address
for RCRA payments]
All payments shall reference the name of the Facility, the Respondent's
name and address, and the EPA docket number of this action. Copies of the
transmittal of payment shall be sent simultaneously to the EPA Project
Coordinator.
5. Respondent may dispute EPA's right to the stated amount of penalties
by invoking the dispute resolution procedures under Section [Number] of this
Consent Order. If Respondent does not prevail upon resolution of the dispute,
EPA has the right to collect all penalties which accrued prior to and during
the period of dispute. If Respondent prevails upon resolution of the dispute,
no penalties shall be payable.
6. Neither the filing of a petition to resolve a dispute nor the payment
of penalties shall alter in any way Respondent's obligation to complete the
performance required hereunder.
7. Ttie stipulated penalties set forth in this Section do not preclude
EPA from pursuing any other remedies or sanctions which may be available to
EPA by reason of Respondent's failure to comply with any of the requirements
of this Consent Order.
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XV. DISPl/TE RESOLUTION
1. If Respondent disagrees, in whole or in part, with any EPA disapproval
or modification or other decision or directive made by EPA pursuant to this
Consent Order, .Respondent shall notify EPA in writing of its objections and
the basis therefor within [Number] calendar days of receipt of EPA's disapproval,
decision or directive. Said notice shall set forth the specific points of the
dispute, the position Respondent is maintaining should be adopted as consistent
with the requirements of this Consent Order, the basis for Respondent's position,
and any matters which it considers necessary for EPA's determination. Within
ten (10) business days of EPA's receipt of such written notice, EPA shall
provide to Respondent its decision on the pending dispute which shall be binding
upon both parties to this Consent Order.
2. The existence of a dispute as defined herein, and EPA's consideration
of such matters as placed into dispute shall not excuse, toll or suspend any
compliance obligation or deadline required pursuant to this Consent Order
during the pendency of the dispute resolution process.
3. Notwithstanding any other provisions of this Consent Order, no
action or decision by EPA, including without limitation decisions of the Regional
Administrator or [his/her designate], Region [ ], pursuant to this Consent
Order shall constitute final agency action giving rise to any rights to judicial
review prior to EPA's initiation of judicial action to compel Respondent's
compliance with the mandate(s) of this order.
XVI. FORCE MAJEURE AND EXCUSABLE DELAY
[NOTE: Provisions excusing the Respondent from compliance
with the performance schedule upon occurrence of events
beyond the Respondent's control (force majeure) are common
and may be included in the Order to facilitate negotiations.
The following paragraph is an example of such a provision.]
1. Respondent shall perform the requirements of this Consent Order within
the time limits set forth herein, unless the performance is prevented or delayed
by events which constitute a force majeure. Respondent shall have the burden
of proving such a force majeure. A force majeure is defined as any event
arising from causes not foreseeable and beyond the control of Respondent which
could not be overcome by due diligence and which delays or prevents performance
by a date required by this Consent Order. Such events do not include increased
costs of performance, changed economic circumstances, normal precipitation
events, or failure to obtain federal, state or local permits.
2. Respondent shall notify EPA in writing within [Number] days after
it becomes aware of events which Respondent knows or should know constitute
a force majeure. Such notice shall estimate the anticipated length of
delay, including necessary demobilization and reroobilization, its cause,
measures taken or to be taken to minimize the delay, and an estimated
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time table for implementation of these measures. Failure to comply with
the notice provision of this section shall constitute a waiver of Respondent's
right to assert a force majeure.
3. If EPA. determines that the delay has been or will be caused by
circumstances not foreseeable and beyond Respondent's control, which
could not have been overcome by due diligence, the time for performance
for that element of the relevant [insert as appropriate: Program Plan, Scope(s)
of Work, Work Plan] may be extended, upon EPA approval, for a period equal
to the delay resulting from such circumstances. This shall be accomplished
through an amendment to this Consent Order pursuant to Section [Number].
Such an extension does not alter the schedule for performance or completion
of other tasks required by any [Work Plan] unless these are also specifically
altered by amendment of the Consent Order. In the event that EPA and
Respondent cannot agree that any delay or failure has been or will be
caused by circumstances not reasonably foreseeable and beyond the control
of Respondent, which could not have been overcome by due diligence, or if
there is no agreement on the length of the extension, the dispute shall be
resolved in accordance with the Dispute Resolution provisions of Section
[Number] of this Consent Order. . .
XVII. RESERVATION OF RIGHTS
[NOTE: To ensure abatement of the threats posed by site conditions,
EPA's right to take action in the future or to require the
Respondent to take appropriate future action should be preserved
as much as possible. For example, the Respondent may satisfactorily
perform the actions required of it by the Order, but those actions
may prove ultijnately to be insufficient to remedy the problem.
To address such instances, the Agency must reserve its right to
institute legal action. The following is a sample provision.]
1. EPA expressly reserves all rights and defenses that it may have,
including the right both to disapprove of work performed by Respondent pursuant
to this Order and to request that Respondent perform tasks in addition to
those stated in the [Insert as appropriate: Wbrk Plan, Scope(s) of Work,
Program Plan].
»
2. EPA hereby reserves all of its statutory and regulatory powers, authorities,
rights, remedies, both legal and equitable, which may pertain to Respondent's
failure to comply with any of the requirements of this Consent Order, including
without limitation the assessment of penalties under §3008{h)(2) of RCRA, 42
U.S.C. 6928(h)(2). This Consent Order shall not be construed as a covenant
not to sue, release, waiver or limitation of any rights, remedies, powers and/
or authorities, civil or criminal, which EPA has under RCRA, CERCLA, or any
other statutory, regulatory or common law enforcement authority of the United
States.
3. Compliance by Respondent with the terms of this Consent Order shall
not relieve Respondent of its obligations to comply with RCRA or any other
applicable local, State or federal laws and regulations.
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4. The entry of this Consent Order and Respondent's consent to comply
shall not limit or otherwise preclude the Agency from taking additional
enforcement action pursuant to §3008(h) should the Agency determine that such
actions are warranted.
5. This Consent Order is not intended to be nor shall it be construed
as a permit. This Consent Order does not relieve Respondent of any obligation
to obtain and comply with any local, state or federal permits.
6. EPA reserves the right to perform any portion of the work consented
to herein or any additional site characterization, feasibility study, and
response/corrective actions as it deems necessary to protect public health
and the environment. EPA may exercise its authority under CERCLA
to undertake removal actions or remedial actions at any time. In any
event, EPA reserves its right to seek reimbursement from Respondent
for such additional costs incurred by the United States. Notwithstanding
compliance with the terms of this Consent Order, Respondent is not
released from liability, if any, for the costs of any response actions
taken by EPA.
XVIII. OTHER CLAIMS
Nothing in this Consent Order shall constitute or be construed as
a release from any claim, cause of action or demand in law or equity
against any person, firm, partnership, or corporation for any liability it
may have arising out of or relating in any way to the generation, storage,
treatment, handling, transportation, release, or disposal of any hazardous
constituents, hazardous substances, hazardous wastes, pollutants, or
contaminants found at, taken to, or taken from the Facility.
XIX. OTHER APPLICABLE LAWS
All actions required to be taken pursuant to this Consent Order shall
be undertaken in accordance with the requirements of all applicable local,
state, and federal laws and regulations. Respondent shall obtain or cause its
representatives to obtain all permits and approvals necessary under such laws
and regulations.
XX. INDEMNIFICATION OF THE UNITED STATES GOVERNMENT
Respondent agrees to indemnify and save and hold harmless the
United States Government, its agencies, departments, agents, and employees,
from any and all claims or causes of action arising from or on account
of acts or omissions of Respondent or its agents, independent contractors,
receivers, trustees, and assigns in carrying out activities required by
this Consent Order. This indemnification shall not be construed in any
way as affecting or limiting the rights or obligations of Respondent
or the United States under their various contracts.
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XXI. FINANCIAL RESPONSIBILITY
[NOTE: To ensure that required corrective actions are successfully
completed by the Respondent, EPA may reguire the establishment of
some form of financial assurance. If the respondent proves unable
or unwilling to undertake the actions prescribed in the Order, the
Agency will then have access to funds with which to undertake the
required action. The financial assurance may take one or more of
several forms depending on a number of factors, including the
reliability and the financial security of the Respondent. These
forms of financial assurance may include a performance or surety
bond, liability insurance, an escrow performance guarantee
account, letter of credit or a trust fund.]
XXII. SUBSEQUENT MODIFICATION
1. This Consent Order may only be amended by mutual agreement of EPA and
Respondent. Such amendments shall be in writing, shall be signed by both
parties, shall have as their effective date the date on which they are signed
by EPA, and shall be incorporated into this Consent Order.
2. Any reports, plans, specifications, schedules, and attachments
required by this Consent Order are, upon written approval by EPA, incorporated
into this Consent Order. Any non-compliance with such EPA-approved reports,
plans, specifications, schedules, and attachments shall be considered a
violation of this Consent Order and shall subject Respondent to the stipulated
penalty provisions included in Section [Number] of this Consent Order.
3. No informal advice, guidance, suggestions, or comments by EPA
regarding reports, plans, specifications, schedules, and any other writing
submitted by Respondent will be construed as relieving Respondent of
its obligation to obtain written approval, if and when reguired by this
Consent Order.
XXIII. SEVERABILITY
If any provision or authority of this Consent Order or the application
of this Consent Order to any party or circumstances is held by any judicial
or administrative authority to be invalid, the application.of such provisions
to other parties or circumstances and the remainder of the Consent Order shall
remain in force and shall not be affected thereby.
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XXIV. TERMINATION AND SATISFACTION
The provisions of this Consent Order shall be deemed satisfied upon
Respondent's receipt of written notice from EPA that Respondent has
demonstrated, td the satisfaction of EPA, that the terms of this Consent
Order, including any additional tasks determined by EPA to be required
pursuant to this Consent Order, or any continuing obligation or premises
[e.g., Record Retention, Reservation of Rights] have been satisfactorily
completed.
XXV. EFFECTIVE DATE
The effective date of this Consent Order shall be the date on which it
is signed by EPA. Because this Order was entered with the consent of both
parties, Respondent waives its right to request a public hearing pursuant to
Section 3008(b) of RCRA, 42 U.S.C. § 6928(b).
IT IS SO AGREED AND ORDERED:
DATE: BY:
[RESPONDENT]
DATE: BY:
[NAME AND TITLE OF REGIONAL
ADMINISTRATOR OR DELEGATES]
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, REGION [NUMBER]
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