OWPE
RCRA CORRECTIVE ACTION
     HANDBOOK
CORRECTIVE ACTION
   D D

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                   TABLE OF CONTENTS               TAB


 CORRECTIVE ACTION PROCESS                            A

 NATIONAL RCRA CORRECTIVE ACTION STRATEGY               B

 CORRECTIVE ACTION AUTHORITIES                          C

 INf ERPRETATION OF SECTION 3008(h) OF THE
 SGllD WASTE DISPOSAL ACT, DECEMBER 1985                 D

 ISSUANCE OF ADMINISTRATIVE ORDERS UNDER
 SECTION 3013 OF RCRA, SEPTEMBER 1984                     E

 FINAL REVISED GUIDANCE MEMORANDUM ON THE
 USE AND ISSUANCE OF ADMINISTRATIVE ORDERS
 UNDER SECTION 7003 OF RCRA, SEPTEMBER 1984              F

 GUIDANCE MEMORANDUM ON USE AND ISSUANCE
 OF ADMINISTRATIVE ORDERS UNDER SECTION
 106 (a) OF CERCLA                                       G

 ADMINISTRATIVE PROCEDURES FOR RCRA SECTION
 9(jftd(hj ORDERS, FEBRUARY 1987                           H
                                      ''
 PUBLIC PARTICIPATION                                   I

;3pp8,(|gj^j|P(^EIg|v:^:;,            ••.'/'-'"•             J
                  CORRECTIVE ACTION MODEL            u
     ^FEBRUARY 1987
     RCBAaVIL PENALTY POLICY                          M

J$QBA SECTION 3008(h) CORRECTIVE AQTION INTERIM
                                                     N

     CORRECTIVE ACTION PLAN, NOVEMBER 1935             ^O
 	,	_ __ CFR PART 1910, HAZARDOUS VVASTE
'OreRATiONS & EMERGENCY RESPONSE^ INTERIM FINAL RULE

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            TABLE OF CONTENTS (2)                  TAB
CORRECTIVE ACTION GUIDANCE SUMMARY                   Q

TECHNICAL ASSISTANCE DIRECTORY, ENVIRONMENTAL
PROTECTION AGENCY, OFFICE OF RESEARCH AND
DEVELOPMENT, MAY 1986                                R

TREATMENT TECHNOLOGY BRIEFS: ALTERNATIVES
TO HAZARDOUS WASTE LANDFILLS, JULY 1986                 S

OVERSIGHT OF ORDER IMPLEMENTATION                     T

RCRA CONSENT ORDER SUMMARIES                        U

CERCLA RECORD OF DECISION (ROD) SUMMARIES              V

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             COMPARISON OF RCRA CORRECTIVE ACTION
                AND CERCLA REMEDIAL PROCESSES*
ESTIMATED
DURATION
OF TASKS
3J6
MONTHS
I
12-24
MONTHS
6-9
MONTHS
>6
MONTHS/YEARS
RCRA
RCRA FACILITY
ASSESSMENT
RFA
1
RCRA FACILITY
INVESTIGATION
RFI
1
CORRECTIVE
MEASURES
STUDY
CMS
I
CORRECTIVE
MEASURES
IMPLEMENTATION
CMI

VS.
CERCLA

PRELIMINARY
ASSESSMENT/
SITE
INVESTIGATION
PA/SI
1
REMEDIAL
INVESTIGATION
Rl
1
FEASIBILITY
STUDY
FS
1
REMEDIAL DESIGN/
REMEDIAL ACTION
RD/RA

Identify releases needing
further investigation.
• Characterize nature, extent,
and rate of contaminant
releases.
• Evaluate/select remedy.
• Design and implementation
of chosen remedy.
'Interim Measures may be performed at any point in the corrective action process.

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          CORRECTIVE ACTION PROCESS
      AGENCY

• §3008(h) order may be issued
  before, during, or after RFA
• Oversight
   RCRA
   Facility
 Assessment

   RFA
                 OWNER/OPERATOR
• Interim measures
•  Permit may be issued
   before, during, or after RFI
   (public participation)
•  RFI Report approved
•  Clean-up requirements
   established
• Oversight
• Corrective measures "\
  selected            1
• §3008(h) order issued/ V
  amended           f
• Permit issued/modified I
• Public participation    )

• Oversight
   RCRA
   Facility
 Investigation

   RFI
  Corrective
  Measure
   Study

   CMS
  Corrective
  Measure
Implementation

   CMI
•  RFI Workplan
•  Facility Investigation
•  RFI Report
•  Interim measures
   Identify and evaluate
   alternatives
   Recommend corrective
   measure(s)
   CMS Report
   Interim measures
  CMI Plans
  CM design & Construction
  CMI Report
  Operations/maintenance
  Monitoring

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  COMPREHENSIVE ENVIRONMENTAL  RESPONSE COMPENSATION  AND  LIABILITY ACT
                    (CERCLA) COMMONLY-USED  ACRONYMS
 ADR       - Alternate Dispute Resolution
 ARAR       - Applicable or Relevant and Appropriate  Requirement
 ATSDR      - Agency  for Toxic Substances and Disease Registry

 CAG       - Carcinogen Assessment Group
 CEPP       - Chemical Emergency Preparedness and Prevention
 CERCLIS    - CERCLA  Information System
 CLP       - Contract Laboratory Program
 CR        - Community Relations

 DQO   .    - Data Quality Objectives

 EDD       - Enforcement Decision Document
 ERA       - Expedited Response Action
 ERGS       - Emergency Response Clean-Up Services

 FIT       - Field Investigation Team
 FS        - Feasibility Study

 HEA       - Health  Effects Assessment
 HRS       - Hazard  Ranking System

 IRP       - Installation and Restoration Program  (Department of Defense)

 NC        - Noncarcinogen
 NCP       - National Oil and Hazardous Substances Pollution Contingency Plan
 NOAEL      - No  Observed Adverse Effect Level
 NPL       - National Priorities List
•NRG       - National Response Center

 OSC       - On-Scene Coordinator

 PA        - Preliminary Assessment
 PC        - Potential Carcinogen
 PHE       - Public  Health Evaluation
 PRP       - Potential Responsible Party

 QA/QC      - Quality Assurance/Quality Control
 QAPP       - Quality Assurance Project Plan

 RA        - Remedial Action
 RAS       - Routine Analytical Services
 RD        - Remedial Design
 REM       - Remedial Contractor
 RI        - Remedial Investigation
 ROD       - Record  of Decision
 RP        - Responsible Party
 RQ        - Reportable Quantity
 RRT       - Regional Response Team

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                           CERCLA  ACRONYMS (CONT.)
SARA      -  Superfund Amendments Reauthorization Act
SCAP      -  Superfund Comprehensive Accomplishments Plans
SI        -  Site  Investigation
SMP       -  Site  Management Plan
SOP       -  Standard Operating Procedure

TAT       -  Technical Assistance Team

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                  RESOURCE CONSERVATION  &  RECOVERY ACT (RCRA)
                            COMMONLY-USED ACRONYMS
ACL  •     - Alternate  Concentration Limit
AO        - Administrative Order

C/PC      - Closure/Post-Closure
CA        - Corrective Action
CAP       - Corrective Action Plan
CEI       - Compliance Evaluation Inspection
CME       - Comprehensive Monitoring Evaluation
CMI       - Corrective Measures Implementation
CMS       - Corrective Measures Study

EIR       - Exposure  Information Report

FMP       - Facility Management Plan

GWM       - Ground-Water Monitoring
GWPS      - Ground-Water Protection Standard

HSWA      - Hazardous  and Solid Waste Amendments of 1984
HWDMS     - Hazardous  Waste  Data Management System

LCRS      - Leachate Collection and Removal System
LOIS   '   - Loss of Interim  Status

MCL       - Maximum Concentration Limit
MCLG      - Maximum Concentration Limit Goal

NTS       - National  Permit  Strategy

0/0       - Owner/Operator

PIP       - Public Involvement Plan
PR        - Preliminary Review

RFA       - RCRA Facility Assessment
RFI       - RCRA Facility Investigation
RIP       - RCRA Implementation Plan
RU        - Regulated  Unit

SNC       - Significant Non-Complier
SOSG      - Standard Operating Safety Guidance
SPA       - State Program Advisory
SV        - Sampling Visit
SWMU      - Solid Waste Management Unit

T/A       - Timely and Appropriate
TEGD      - Technical  Enforcement Guidance Document
TSDF      - Treatment, Storage, Disposal  Facility

VSI       - Visual Site Inspection

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 NATIONAL RCRA CORRECTIVE ACTION STRATEGY
             October 3, 1986
   U.S. Environmental Protection Agency



Office of Solid Waste and Emergency Response

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           NATIONAL RCRA CORRECTIVE ACTION STRATEGY






I. INTRODUCTION






     The Hazardous and Solid Waste Amendments of  1984  (HSWA)




greatly expanded authorities under the Resource Conservation




and Recovery Act (RCRA) for requiring corrective  action  for




releases of hazardous wastes and constituents at  facilities that



manage hazardous wastes.   Section 3004(u) of HSWA requires




corrective action for releases of hazardous wastes or constituents




from any solid waste management unit at a storage, treatment or




disposal facility that is seeking or otherwise subject to a RCRA



permit.  Section 3004(u) also requires that these permits contain



assurances of financial responsibility for complying with corrective




action.  Moreover,  section 3004(v) authorizes EPA to require



corrective action beyond the facility boundary.  Section 3008(h)




of HSWA authorizes the Environmental Protection Agency(EPA) to




require corrective action or other necessary response measures



whenever it is determined on the basis of any information that




there is or has been a release of hazardous wastes or constituents




from a facility authorized to operate under Section 3005(e) of RCRA.



     This strategy is intended to inform Regions, States, the




regulated community and the public how the Agency plans  to approach



implementation of the corrective action program.  This section



introduces the HSWA corrective action authorities and discusses



the universe of RCRA facilities subject to these requirements.



Section II discusses the basic technical process  that applies



generally to any corrective action.  Section III discusses how the




Agency will approach the corrective action program, including

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                               -2-






establishing  priorities,  and  factors  influencing  ranagenent  of




corrective  action.   Section  IV discusses  the  EPA-State partnership




in achieving  corrective  action goals.   At  the  end  of  each  section




or subsection there  are  lists of guidance  documents  for the  RCRA




corrective  action program that have been issued to date and




planned documents and the current  target dates for their issue.




Also included are the training courses  that are planned for  each




component of  the program.  Under each  item a  contact  person  is -




provided who  can answer  inquiries  about the topic.  Appendix 1




lists guidance issued by  other programs that may be useful in




implementing  the corrective action program.




     The success of  the  RCRA  corrective action program depends




on the cooperation between the States,  EPA, regulated  community




and the public.  Of  critical  importance is early  involvement




of the affected public in the  corrective action process.   EFA




intends to  develop a corrective action  public  participation




program that  provides information on the facility to the public,




gives them an opportunity to  make  their views  known to EPA or



the State and that provides for consideration  of their views




in the decision making process.



     These new corrective action authorities greatly expand



EPA's ability to ensure that RCRA  facility owners and  operators




correct releases at their facilities that may  pose a threat  to



human health and the environment.  The new 3004(u) authority




applies to facilities subject  to RCRA permits.  This includes



operating permits for new and  existing  facilities and  post closure




permits for land disposal facilities.  At  facilities that  received



RCRA permits prior to November 8,  1984, corrective action require-

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                               -3-
ments will be imposed upon issuance of a new permit once the




current permit expires or is reopened.




     The scope of the 3004(u) authority is  largely defined




by its key terms.  It requires that permits impose corrective



action for releases of hazardous wastes or constituents which




pose a threat to human health and the environment, from any



solid waste management unit(SWMU) at a storage, treatment or



disposal facility seeking a RCRA permit.  To understand the




scope of this authority it is necessary to understand the key



terms of the statutory provision.




     The term "release" is defined in the Final Codification




Rule (July 15, 1985) to include any spilling, leaking, pouring,



emitting, emptying, discharging, injecting, escaping, leaching,




dumping or disposing into the environment.  While similar to the



CERCLA definition, it excludes discharges of hazardous wastes or




constituents to the injection zone of a UIC permitted Class I




injection well.   It can also include releases that are authorized



or otherwise permitted under other environmental statutes.



     The term "solid waste management unit" is also explained




in the Final Codification Rule (July 15, 1985).  It includes



any discernable waste management unit from which hazardous



constituents may migrate,  irrespective of whether the unit was




intended for the management of solid or hazardous wastes.  The




following types of units are therefore included in the definition



of SWMUs: landfills, surface impoundments,  waste piles, land



treatment units,  incinerators,  injection wells, tanks (including

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                                -4-




90 day accumulation tanks),  container  storage  areas  and transfer




stations.  In addition  to  these types  of  units,  certain areas




associated with production processes at  facilities which  have



become contaminated as  a result of  routine,  systematic  and




deliberate releases of  wastes,  or hazardous  constituents  from




wastes, are also considered  to  be solid waste  management  units.




A product may become a  waste if it  is  abandoned  or discarded.




     Some questions have been raised regarding the application  of




the concept of "solid waste  management unit" to  other types  of"




contamination at facilities,  such as spills, leakage  from product



storage, and releases from production  processes  that are  not




routine, systematic and deliberate.  Such  releases are  not  con-




sidered to be solid waste management units.  As  explained in the




Final Codification Rule (50 FR  28712), one-time  spills  of wastes




or constituents are considered  subject to  §30'04(u) corrective




action only if the spill occurred from a  solid waste management



unit.  A spill which cannot be  linked  to a discernible  solid



waste managment unit is not of  itself  a solid waste management



unit.  Likewise,  leakage from product storage and other types of



releases associated with production processes would not be considered




solid waste management  units, unless those releases were  routine,




systematic and deliberate.



     The term "facility" includes all  contiguous property under




the control of an owner or operator at which the units  subject




ta permitting are located .



     Section 3008(h),  the enforcement corrective action authority,




also vests broad  discretion with the Agency to compel corrective



action.  This authority has been interpreted to  authorize the

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                               -5-
Agency to compel corrective measures or other actions necessary




to protect human health or the environment whenever the Administrator



determines, based on any information, that there is or has been a




release of hazardous wastes or constituents from an interim status




RCRA facility.  The key terms in this provision are interpreted



in a December 16, 1985 EPA memorandum entitled  "Interpretation




of Section 3008(h) of the Solid Waste Disposal Act."  The terms




release and facility are interpreted as they are for Section



3004(u).  Appropriate information upon which to conclude there




may have been a release for purposes of section 3008(h) include,




but are not limited to the following: data from laboratory analyses




(from soil, air, surface water or ground water  samples), observations



recorded during inspections,  photographs and information obtained




from facility records.  '



     It should be noted that the §3008(h) authority is not con-



fined to addressing releases from solid waste management units.




It is the Agency's position that the coverage of the types of



releases which can be addressed under §3008(h) is somewhat different




in scope than that of §3004(u).  In situations where a §3008(h)




action has been initiated at a facility to address releases that




are not from solid waste management units, and where a permit is



subsequently issued to the facility, the Agency intends that




those actions will be continued under the permit,  under the



authority of RCRA section 3005(c)(3).  Comment is requested on




this proposed approach.



     Not only are these RCRA corrective action authorities broad,



but the universe of RCRA facilities to which they potentially




apply is diverse.  Among the types of RCRA facilities that can

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                                -6-
present environmental  problems are  land  disposal,  treatment




and storage  facilities.  Corrective  action  requirements  apply  to




these  facilities regardless of whether they are continuing waste




management operations  or closing these operations.  Moreover,




these  requirements apply regardless  of whether a facility or part




of it  is subject to an action under  the  Comprehensive  Environmental




Response Compensation  and Liability  Act  of  1980  (CERCLA  or Superfund)




     The RCRA facilites subject to corrective action are also




diverse in that there  are varying amounts of existing  information



available on them.  For example, in  some cases there will be




extensive information  available on the regulated unit  (and




possibly the solid waste management  units)  from previous enforcement



actions, the Part A and B applications,  inspection reports, etc.




In others,  very little information may be available, thus increasing




the initial information gathering burden.   At some facilites



there will be extensive and complex  corrective action  required,




while at others little or no action  may be  necessary.




     Federal facilities are subject  to RCRA corrective action



requirements.  At this time EPA is working  with other  Federal




agencies to determine  how best to manage the corrective  action



program for the Federal establishment.  This effort is dealing




with several- issues,  including how to define facility ownership



in light of the structure of many agencies, and how to coordinate




the RCRA and CERCLA corrective action programs.



     In developing the corrective action program it is EPA's



intent to recognize the diversity of the universe subject to



corrective  action and  to adopt a system  for managing the program

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                                -7-
which provides sufficient  flexibility  to ensure that corrective




measures necessary to protect human health  and the  environment




are taken expeditiously.



     In order to establish a consistent and well-defined program



for implementing the new RCRA corrective action mandate, the



Agency intends to develop  a comprehensive regulatory framework to




define both procedural and substantive requirements for the



program.  This major rulemaking will provide the  regulated community




and other parties the opportunity to participate  in the decision




making process for setting standards for the program.  Regulations



will also provide a solid  legal foundation  to enforce these




standards.  Proposed regulations are tentatively  expected to be



issued in the Fall of 1987.




     Among the most important decisions which must  be made in



implementing corrective actions at actual facilities is the




determination of when corrective action is  required, and when it




is completed.  Standards for these "how clean is  clean" decisions



will be a major component of the rulemaking effort  described



above.  The Agency intends to develop guidelines  for determining




when corrective actions will be "triggered".  "Target" levels



will be established to define the objectives to be  reached by




corrective actions.   It is the Agency's current intention to set




these target levels  using health and environmental  based goals,



within the limits of feasible technology.



     The fundamental objectives of the RCRA corrective action




program are essentially similar to those of CERCLA.  Because



some RCRA facilities can be expected to ultimately become Superfund




sites (some RCRA facilities actually have CERCLA-mandated  actions

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                                -8-
already underway), there is need  to  maintain consistency between

the two programs  in making response  decisions.  Whenever feasible,

the Agency will design corrective action  policies and  guidelines

so as to foster consistency.   It must be  recognized, however,

that there are statutory and programmatic differences  between

the RCRA and CERCLA programs which the Agency must  consider  in

formulating the RCRA corrective action program.  As the RCRA

program is developed through policy, guidance and regulation,

one of the Agency's primary objectives will be to maintain consistency

with CERCLA, while tailoring the program to meet the specific

needs and objectives of RCRA.

GUIDANCE:

Guidance on use of Section 3008(h);  December 16, 1985;
Contact: Ginny Steiner (202)475-9329

Agency Interpretation of 3004(u): Corrective Action for Continuing
Releases; draft issued 1/30/85; Contact: Dave Fagan (202) 382-4740

TRAINING;

Seminars on use of 3008(h) and soon  to be issued procedures
are tentatively planned for FY 87 for EPA Regional personnel.



II.   THE CORRECTIVE ACTION PROCESS

    This section outlines the basic  technical steps that will be

taken to identify potential releases, characterize them and

select and undertake appropriate response actions.   Understanding

these basic steps is central to implementing the corrective

action process outlined in section III of this strategy.  These

steps apply to corrective action secured through a permit or

completed through an enforcement order.

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                             -9-
     Specific policies, guidelines and regulations on various




aspects of this process will be issued over the next several




years.  This section provides the basic framework against which



these guidances will be developed.  It should be understood,




however, that these steps nay vary in detail or be eliminated



altogether depending on the individual facility situation.




Examples of situations i-n which this may occur are outlined in




section III below.  The stages of a corrective action are



illustrated in Figure 1.  Figure 1 shows the steps of the



corrective action process and also identifies the appropriate




roles of the regulatory agency and the facility owner/operator



in the various steps.




     A. RCRA Facility Assessment (RFA):



     The first step in any corrective action is the assessment




of the facility to identify actual and potential releases from



RCRA regulated units and other solid waste management units.




The objective of this assessment is to determine whether there



is sufficient evidence of a release to require the owner/operator




to undertake additional investigations (a RCRA facility invest-




igation) to characterize the nature,  extent and rate of migration




of contaminant releases of concern.  For cases of likely releases,



the RCRA Facility Investigation will include release verification



procedures.  Information gathered in the RFA should be used in




developing a sound scope of work for a full remedial investigation.



The RFA is intended to focus on investigating releases and potential



releases from identifiable solid waste management units.   It is




not the Agency's intention that RFAs  routinely examine facilities'




entire production,  handling and storage areas, and activities.

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                      FIGURE 1




RCRA CONTINUING RELEASES CORRECTIVE  ACTION PROCESS
Regulatory Agency performs RCRj
o/o cooperation where appropri<
0 Identify solid waste manager
collect existing informatio
0 Identify releases needing fv


\ facility assessment ( RFA) with
ate to:
nent. units ( SWMUs ) and
i on contaminant releases.
arther investigation.

Regulatory Agency specifies permit conditions or issues
i
enforcement order to facility owner or operator to:
0 Perform investigations on releases of concern;
and/ or
0 Implement interim corrective measures.


Facility Owner .or Operator performs RCRA facility
investigation ( RFI ) to characterize the nature, extent
and rate of migration for releases of concern and/or
implements interim corrective measures.

Regulatory Agency evalu
determines need for coi


lates results of RFI and
rrective measures. (CM)

Owner or Operator proposes appropriate CM when
required by regulatory agency.



Regulatory Agency evaluates CM proposal and
specifies appropriate CM.



Owner or Operator demonstrates financial assurance,
and designs, constructs, operates, maintains and
monitors the CM.

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                               -10-




However, when conducting RFAs investigators  may become  aware  of




other types of releases (e.g./ product  releases) or  sources of



contamination not related to solid waste management  units, but




which merit further investigation and characterization  by  the




owner/operator.  Likewise, certain areas at  facilities  that are




not solid waste management units nay be identified as likely  to




be causing serious environmental problems, but about which little




or no actual evidence of contamination  is available; such  situations



may merit preliminary, RFA-type investigations to be conducted by




owner/operators to verify releases.




     As explained previously, releases  which are not linked to




solid waste management units may be addressed using  §3008(h)  or




other enforcement authorities.  It is the Agency's intention



that when issuing a permit to a facility,  the permit schedule of



compliance may also,  as necessary, require owner/operators to




address releases that are not linked to solid waste  management



units,  under the authority provided in  RCRA section  3005(c)(3).



EPA specifically invites comment on this proposed approach.




     The scope of an RFA may vary from  facility to facilijty.



In most cases  it is preferable to address  all the solid waste



management units at the facility in the RFA.  This is especially




true when dealing with a facility in which units are closely




related and subsequent investigations will be more efficiently




performed by addressing the entire facility.  However,  it  may be




permissible to perform an RFA for a particular unit  or  units  in



advance of the rest of the facility.  This could occur, for



example, when there is an immediate threat that needs to be



addressed.  The RFA is performed by EPA or the State and can

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                                -11-
inciude use of  sampling  data  gathered  by  the  owner/operator  of




the  facility. However, if  there  is  any problem with  owner/operator



participation in the RFA (timeliness,  reliability etc.)  EPA  or




the  State will perform the entire RFA.




     E. Interim Measures:




     These are corrective  measures  that may be taken at  any  point




in the corrective measures process  to  abate threats.  These




actions are generally short term actions  responding  to immediate




threats, such as actual  or potential exposure to hazardous wastes




or constituents, drinking  water  contamination, threats of fire




and  explosion, and other situations posing similar threats.




Normally,  minimum study  and planning is necessary for interim




measures.   Interim measures can be quite  effective in abating




immediate problems and in  keeping existing problems  from worsening




while studies are being  completed.  Interim measures can be



particularly useful in dealing with facilities that  are  economically




marginal and which may only be able to complete part of their



RCRA corrective action obligations.



     C. RCPA Facility Investigation (RFI):




     The purpose of a RCRA Facility Investigation is to  gather




data sufficient to fully characterize the nature, extent and rate



of migration of contaminant releases identified in the RFA.   Of




paramount  importance to the RFI is that it provide sufficient




data to determine appropriate response actions (i.e.  appropriate



corrective measures or document that no action is needed).  The



RFI is perfomed by the facility owner/operator pursuant  to an




enforcement order or a permit schedule of compliance.  EPA or



the State  oversees this  activity.

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                               -12-
     D. Corrective Measures Study and Selection of the Appropriate
        Measures

     After the RCRA Facility Investigation is completed the

owner/operator must identify the appropriate corrective measures

and recommend them to EPA or the State.  EPA or the State will

then review the recommendation, provide the public an opportunity

to review and comment on the proposed action and select the

final measures.

     The owner/operator must conduct a corrective measures study

to assure that the proposed measures will be effective in correcting

threats posed by releases.  Depending on the facility situation,

this study may include actions to control the source of the

contamination (by preventing or mitigating the continued migration

of contamination, by removing, stabilizing and or containing the

contaminants) and/or actions to abate problems posed by the migration

of substances from their original source into the environment.

     In some cases it will be possible for the owner/operator to

analyze and present to the Agency or State only a single alternative

that meets public health and environmental requirements.  This

should be done when EPA or the State agree that the alternative

the owner/operator is proposing to analyze is likely to effectively

achieve corrective action goals, including health and environmental

requirements and is technically sound.  In other cases,  however,

it may be necessary to analyze more than one alternative to

determine the appropriate response measure.  For example,  offsite

or onsite alternatives may be considered or there may be a difference

of opinion as to whether a particular alternative the owner/operator

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                                -13-
 proposes to analyze would be reliable or effective in abating




 threats expedition sly.  In such cases,  EPA or the State should




 require the analysis of several alternatives to ensure that




 appropriate response measures are completed on a timely basis




 and that response is not delayed by a sequential analysis of




 a series of alternatives.




      The owner/operator must demonstrate that the response




 action proposed  effectively abates the  threats to human health




•and the environment posed by the release(s).  This requires




 the owner/operator to analyze the alternative or alternatives




 in detail sufficient to show that the recommended measures are




 effective in abating the threats posed  by the release.  To do so




 the owner/operator must assess the alternative or alternatives




'in terms of its  technical  feasibility (including reliability




 and requirements for long  term operation and maintenance), its



 ability to  meet  public health protection requirements,  its




 ability to  protect the environment and  any  adverse environmental




 effects of  the  measures.   The owner/operator also should consider



 any institutional  constraints to implementation of the measures,




 such as offsite  capacity problems and potential public opposition.



      EPA has  not yet completed guidelines on this phase  of the




 RCRA corrective  action program.   RCRA final remedies  will, however,




be required to  meet  applicable health and environmental  standards




pr6mulgated under  RCRA and other laws.   At  regulated  units,



 groundwater releases are subject to  the  groundwater  protection



 standards.   The  groundwater protection  standard consists of  the



 following:  (1)  for any constituents  listed  in Table  1 of 40- CFR

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                               -14-






264.94, the respective value given in that table  (MCL) if the




background level of the constituent  is below that given  in Table




1;  (2) the background level of that constituent in the groundwater;




or  (3) an approved Alternate Concentration Limit  (ACL) where




approval will be based on criteria set forth in 40 CFR 264.94(b).




The Agency plans to issue guidance on ACLs during FY  1987.  The.




Agency is currently assessing the appropriate technical  approach



to take to problems that cannot be addressed by existing standards.



One alternative is to establish appropriate health based standards




on a case by case basis.




     EPA or the State will evaluate the owner/operator's recom-



mendation and approve or disapprove it.  The financial assurance




demonstration will also be reviewed at this time.  The views of



the public on the proposed measures will be considered by the




State and EPA in making these decisions.




     E.  Corrective Measures Implementation




    After EPA or the State selects the remedy, the owner/operator



will design and construct the selected response action.   After




construction the appropriate measures needed to operate,  maintain



and monitor the remedy will be taken by the owner/operator.  These



activities will be required by permit condition or order, and will be



performed by the owner/ope rator with oversight by EPA or the State.



     Effecting remedies (or interim measures) at facilities that



do not have RCRA permits will,  in some cases,  involve creation of



new treatment, storage or disposal units.  Rather than going




through the actual process of issuing RCRA permits to such new



units,  which could substantially delay implementation of the




remedy, the Agency is considering using enforcement authorities

-------
                               -15-
and closure plan regulatory authorities  to  allow those  units to

be constructed and operated without a  formal  RCRA permit.  EPA

may need to amend existing regulations to provide  for this

proposed approach.  Such new units would nevertheless generally

be required to comply with applicable  Part  264 technical standards,

and appropriate public review and comment would be provided for.

If such new units are created at a permitted  facility, the normal

permit modification process would be followed.  Comment is specif-

ically solicited on this proposed approach.


GUIDANCE;

RCRA Facility Assessment Guidance; Draft: 8/5/85 Final: Target--
10/86.For further information contact: Dave Fagan (202) 382-4740

RCRA Facility Investigation Guidance; Draft: Target—December, 1986
For further information Contact: Art Day-(202) 382-4680

Corrective Action Plan (model scope of work for CA):  Target-- •
September,  1986.   For further information contact:   Mark
Gilbertson (202)  382-4849

Interim Measures Guidance; Final: Target--September,  1986
For further information contact: Jackie Moya  (202) 382-3122

Corrective Measures Guidance; Target--Draft-Spring, 1987
For further information contact:  Art Day (202) 382-4680

Guidance on Alternate Concentration Limits;  Target:  November, 1936
For further information contact:  Vernon Myers (202)  382-4495

Implementation of RCRA Facility Assessments; From: J.  Winston Porter
To: Hazardous Uaste Division Directors, Regions I-X,  August 21,  1986

TRAINING:  RFA training was delivered to EPA Regions and States
during April-September 1986.

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                               -16-






III. MANAGING THE CORRECTIVE ACTION PROGRAM




     EPA and the States are responsible for management of the



corrective action program.  The steps in a corrective action



will be imposed through permit conditions or through enforcement



orders.  In general, a permit may be issued with a schedule of



compliance for an RFI and Corrective Measures study.  After



EPA or State approval of the appropriate corrective measures,



the permit will be modified to provide a schedule of compliance



for design, implementation and operation and maintenence. This



modification will be considered a major modification to the permit,



and will, therefore, provide for additional public involvement.



Likewise, enforcement orders should be phased with one order



being issued for the RCRA. facility investigation and corrective



measures studies and another for the implementati.on steps after



approval of the corrective measures.  The Agency is. currently



developing a policy on involvement of the public in Enforcement



corrective actions.  Owner/operators of facilities at which the



corrective action process will-be implemented over time will



also be encouraged to develop their own community involvement and



education programs.



     In the case of both permits and enforcement, negotiations



with the owner/operator on the scope of the initial studies and



remedy implementation will be necessary.  Depending on the status



of a particular facility, Regions and States may choose to use



permit schedules of compliance to secure some stages of corrective



action and enforcement action for other stages.   Where orders



are used in advance of permit conditions, the schedule of compliance



may later be incorporated into the permit.   Subsections A. and B.

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                               -17-
below give some examples of how Regions and States can use



enforcement and permitting corrective action authorities in a



complementary fashion.  These management choices are shown in



Figure 2.  In general, permitting authorities should be used



when the owner/operator is cooperative.  When the owner/opera tor



is recalcitrant, enforcement actions should be pursued.



     Priorities for corrective action are established in the



annual RCRA Implementation Plan (RIP).  The Agency's general



approach to assigning priorities for corrective action is to



focus the resources available to the program on those facilities



which pose the greatest overall threat to human health and the



environment.  In order to implement this general policy, the



Agency has tentatively decided to target a limited number of



facilities to be dealt with intensively, rather than attempting



to implement the process simultaneously at all facilities subject



to corrective action requirements.  Regions, in conjunction with



the States will, through the Facility Management Planning process,



identify a limited number of facilities in the Region for priority



attention in initiating and following through in the corrective



action process.   These priority facilities will be targeted to



receive intensive EPA/State oversight, with sufficient resources



allocated for the technical,  administrative and enforcement



support necessary to effectively and expeditiously effect corrective



action for those facilities.   EPA recognizes that focusing the



program's resources on a limited number of higher priority



facilities will  require that lower priority facilities which



nevertheless may have substantial environmental concerns will be



dealt with less  aggressively in following through the corrective

-------
                               -18-






action process.  For such facilities, compliance schedules may be



drawn over longer time frames, and/or less intensive review




given of owner/operator generated reports and data.  Likewise,



at some facilities with multiple sources of contamination, the




releases which pose the greatest immediate threat to human health




and the environment may be given priority attention, with the




remainder of the facility dealt with as a lower priority.  EPA




invites comnent on this proposed method of prioritizing  for -the



corrective action program.




     As discussed above, the progression of any particular facility



through the corrective action process may vary due to the status




of the facility.  The following subsections describe consider-



ations that may be relevant when managing a corrective action



at facilities seeking operating permits and at facilities that




are closing waste management operations.



A. Facilities seeking operating permits.



     Prior to issuance of an operating permit the EPA or State




should undertake a RCRA Facility Assessment covering the entire



facility to determine whether there may be releases from units




at the facility.  RFAs on units being addressed by the permit




should be completed prior to permit issuance.



     At land disposal facilities,  current regulations require



that corrective action for groundwater releases at regulated




units be identified and designed prior to permit issuance.  This is



not a requirement for regulated treatment units, such as in-




cinerators and storage units.  EPA is examining the land disposal



regulations at this time to determine whether modification should



be made to allow permitting following the determination that a

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                                -19-
 release  exists,  but  in  advance  of  design  of  the  corrective




 action.




     At  a  facility seeking an operating permit,  all  corrective




 action steps subsequent to the  RFA. should be compelled  through



 a  schedule of compliance  in an  operating permit  when feasible




 and appropriate.  EPA's ultimate goal is  to  ensure that  all




 permits  have enforceable  schedules of compliance for corrective




 action activities.   If necessary,  enforcement orders can be  used




 in advance of permit  issuance to compel corrective action in




 response to immediate threats or to get corrective action




 investigation activities  underway  at a facility  that is  not  near




 enough to permit issuance to use a schedule  of compliance in the




 permit to secure corrective action.  The use of  the  order ensures




 that there are enforceable requirements in place.  This  approach




 can be useful as the  1988 deadline for land  disposal permit



 issuance approaches.  Not all land disposal  permits,  will be  at




 the same stage at the same time.   In order to keep the  land




 disposal facilities moving toward  1988 permit issuance Regions



 and States should consider supplementing permit  activities by



 using enforcement orders to support corrective action needs



 during permit processing.




     The choice of using an order or permit  to secure various




 steps of corrective action at facilities seeking permits should




be made a part of the Facility Management Planning Process.   In



 this process Regions and States should consider  whether it is




 likely that the facility will remain in the  operating universe




or is Likely not to receive an operating permit.  If  the facility

-------
                                -20-




is not likely to receive an operating  permit  it  may be  appropriate




to initially consider the use of an  enforcement  order  to  secure




initial steps of corrective action in  advance  of  permit denial




and closure.




B. Closing Facilities




     Facilities that are closing their waste man ace merit operations




present a somewhat more complicated  corrective action  management




problem than those that are seeking  operating permits.  Some



closing facilities which are subject to post-closure permit require-




ments (i.e., land disposal facilities which received wastes after




July 26,  1982) may investigate and complete all corrective measures




under the post-closure permit.  Other  facility owner/operators



will be unwilling or unable to undertake required closure and



corrective measures and will ultimately become facilities that



must be dealt with under CERCLA or other authorities.



     As with the operating universe,  the first step in  taking a




corrective action at a closing facility is for EPA or the State



to perform a RCRA facility assessment to identify actual or




potential releases from the facility.  While the RFA provides an




idea on the scope of investigation that mav be necessary at a



facility, it does not give EPA or the State any  idea of whether



a facility will have the financial ability to perform the necessary




investigations or take appropriate response actions.  One option




is to assess the financial status of the facility early in the




corrective action process to determine the ability of  the owner/op-




era tor to take necessary response actions.  During FY  1987 the



Agency will be examining how to treat economically marginal faci-



lities and whether financial assessments can be a useful tool in

-------
                               -21-


this process.  Such an assessment can assist in determining the

best approach to take to secure corrective action by the owner/op-

erator including use of CERCLA authorities.  EPA is currently

examining tools that could be used in making these determinations.

Using the results of the RFA, the financial assessment (if appropriate

and other available information on the facility, a decision on

the best approach to corrective action can be made.  The facility

management planning process should be used to determine the

appropriate management approach to the closing facility.

     Several approaches can be taken to securing corrective

action depending on the situation at the individual facility.

The following authorities can be used individually or in

combination with each other:
                                                                    i
       1.  Post closure permit call in and/or issuance;  The post

          closure permit application can be called in to secure

          additional information (part 270) from the owner/operator

          on the physical situation at the facility.* A 3008(a)

          order can be used to compel submission of any information

          that is missing or deficient in the post closure permit

          application.  Once secured, this information can be

          used to support issuance of a 3008(h) order to compel

          corrective measures or to support post closure permit
1 A separate post closure permit call in is not necessary at a
facility that submitted a permit application (in response to
call) and then decided to close before receiving an operating
permit.  Since the post closure permit application requirements
are a subset of those required for an operating permit, it is not
necessary to initiate a separate call and experience the resulting
six months delay before enforcing Part 270 requirements.

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                     -22-




issuance.  The RCRA program  is  focusing  upon  closure  of




regulated units via the closure plan  approval process




and the issuance of enforcement orders or  post-closure




permits to secure corrective action at environmentally




significant  facilities.  Enforcement  orders can  later be




incorporated into post closure permits when appropriate




to do so.




2.  3008(h) orders; Many facilities in the closing



universe requiring corrective measures should be




addressed through 3008(h) orders.  This  is particularly




true for those facilities that are likely  to  cease




operations before fulfilling post closure  obligations.



Environmentally significant closing facilities are



priority candidates for 3008(h) orders in  FY  87.    Use



of a 3008(h) order to address closing facilities has




several advantages.  When an order is used at a  facility




that is in an uncertain financial state, it provides




an opportunity to document whether the facility owner



is able to fulfill obligations under the order or




whether it is likely to become a site that must be



dealt with under CERCLA authorities.  In this  respect



it acts as a bridge to CERCLA.  Moreover,  if  it becomes




apparent that the facility can complete  its obligations



under RCRA,  the -provisions of the order  can later be



incorporated into the post-closure permit  along with




any additional requirements necessary to complete



corrective action obligations.

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                        -23-




        At many facilities in the closing universe  it



   will be difficult to determin-3 initially whether the



   company will have sufficient financial resources to



   take all the appropriate corrective measures.  In such



   situations emphasis should be placed initially on



   compelling interim measures at the facility to abate-



   the most immediate problems and RCRA facility investigations



   to the extent feasible.  V.here it is apparent that the



   owner/operator is not financially viable and nay be a



   candidate for CERCLA. act ion, corrective action requirements



   should be tailored to achieved as much as possible



   before the o/o is no longer able to pay for the  clean-



   up or other associated costs.   I.f an owner/operator



   has the financial resources to take appropriate  actions



   and refuses to do so, judicial action should be  pursued.



3.  CERCLA response;  When a facility is clearly not able



   to fulfill its corrective action obligations,  action



   should be taken as soon as possible to determine whether



   it should be managed under the CERCLA program.  For



   example, a facility that is bankrupt is a prime candidate



   for referral to the CERCLA program.  Several options



   are available under CERCLA for dealing with the  facilities.



   In the majority of cases where the owner is insolvent,



   or efforts to secure action under RCRA have been



   unsuccessful, CERCLA section 104 action may be no re



   appropriate due tc the lack of viable responsible



   parties.   Under section 104 a  fund-financed removal



   may be pursued if the criteria outlined in the National

-------
                           -24-
          Contingency Plan are met (see 40 CFR 300).  In general




          these criteria encompass more serious threats.  Fund-




          financed remedial action can be pursued at facilities




          that are listed on the National Priorities List.  The




          EPA has recently issued final criteria for listing




          RCRA facilities on the NPL and has proposed additional




          criteria for listing these facilities (see 51 FR 21054



          and 51 FR 21109, June 10, 1986).



     In addition to the authorities outlined above, the closure



plan can also be a valuable tool to secure corrective action at



closing facilities.   Many of the activities taken to close a



regulated unit are steps toward completion of a corrective measure.




Accordingly, closure plan development,  approval and implementation



should be closely coordinated with corrective action activities




at closing facilities.  Further detail on how to coordinate these



activities is included in Section IV below.










IV. FEDERAL STATE PARTNERSHIP IN THE CORRECTIVE ACTION PROGRAM




     As a program delegated in phases,  RCRA has always required



close coordination between EPA and the States.  With the advent



of broad-based corrective action authorities, an effective



Federal/State partnership is even more important.   Because the



Agency's new corrective action responsibilities derive from the



HSWA amendments,  the Federal government has responsibility for



implementing the new authorities until states are  specifically




authorized for corrective action.  Consequently,  until states



are authorized for the new §3004(u) authority, all permits

-------
                                -25-






incorporating corrective action will have  to  be  issued  jointly




by EPA and the State.  Likewise, only  the  Federal  government  is




expressly authorized to issue  §3008(h) orders  requiring  investi-




gation and clean up at interim  status  facilities.   States, however,




may have similar authorities under their own  laws.




     EPA intends to give States a considerable opportunity to



participate in the corrective action process  prior  to official




authorization.  Through their closure  regulations,  for example,




States can compel facilities to undertake  various activities  to




mitigate or eliminate threats to public health or the environment




(e.g., waste removal, soil decontamination, capping).  Many States




also have authority to compel investigation or clean up  through




non-RCP.A enforcement authorities such as public  nuisance  law,




state water laws,  or state Superfunds.  Use of.-these authorities




is encouraged at RCRA facilities provided  that states use their




own authorities to achieve equivalent response as required by  RCRA.



     Given the varying authorities and responsibilities  of Federal




and state governments prior to  full authorization,  joint Federal/state



planning will be particularly crucial to program implementation.




Regions and states should use the Facility Management Planning



process to decide  on a facility-specific basis the timing of



various corrective action initiatives,  which authority (ies )




should be used to  compel  the initiative, and which  agency will



take responsibility for implementing and overseeing the action.




Where non-RCRA state authorities are used  to compel corrective




action activities,  EPA will have ultimate  respons ibilty  for



ensuring that the  activities mandated are consistent with and




equivalent to the  standards imposed by HSWA.

-------
                              -26-

GUIDANCE: RCRA Reauthorization and Joint Permitting In
          Authorized States, July 1, 1985
V.  REQUEST FOR COMMENT

     EPA invites comments on the general features of this draft

strategy, as v/ell as on the specific issues and policies which

are expressed as part of the strategy.  Comments should be

directed to:
                Matt Hale
                Chief,  Permits Branch (WH-563)
                Office of Solid Waste
                U.S. Environmental Protection Agency
                Washington, D.C.  20460

-------
           APPLICATIONS OF RCRA AND CERCLA
             CORRECTIVE ACTION AUTHORITIES
         TRIGGER
        SITUATIONS

POTENTIALS
LIABLE PERSONS^
Non-Compliance
    with
  Subtitle C
Substantial
  Hazard
Imminent and
 Substantial
Endangerment
Release of
Hazardous
Waste or
Hazardous
Constituents
  Present generators,
  transporters, and
  owners/operators
   §3008(a)
  Present
  owners/operators
                                         §§3008(h)
                                           3004(u)
                                           3004(v)
  Past or present
  owners/operators
                 §3013
  Past or present
  generators,
  transporters, and
  owners/operators
                          CERCLA §§104,
                                   106
                          RCRA §7003

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            RCRA SECTION 7003
Any person who is handling or has handled solid waste or hazardous waste

     including past or present generator, transporter, or o/o
Substance handled, stored, treated, transported or disposed of is a solid waste
or hazardous waste.
Handling, storage, treatment, transportation or disposal may present an
imminent and substantial endangerment to health or the environment.

-------
           RCRA SECTION 3013
Present o/o or most recent previous o/o of a facility or site
Presence or release
Of hazardous waste
From a facility or site
Which may present a substantial hazard to human health or the environment.

-------
        RCRA SECTION 3008(a)
Any person subject to RCRA Subtitle C
Who has violated or is in violation of any requirement under RCRA Subtitle C.

-------
         RCRA SECTION 3008(h)
There is or has been a release
Off hazardous waste or hazardous constituents
Into the environment
From a facility subject to interim status under Section 3005(e)
Corrective action or other response measure is necessary to protect human
health or the environment

-------
        RCRA SECTION 3004(u)
 Releases
Of hazardous waste or hazardous constituents
From solid waste management units
At a permitted TSDF

-------
          RCRA SECTION 3004(v)
Corrective action is required beyond the facility boundary of a TSDF for
 releases
 Of a hazardous waste
 Where necessary to protect human health and the environment.
 The owner/ operator is able to obtain the permission of the owner of the
 affected property.

-------
          CERCLA SECTION 104
In the event of a release or substantial threat of release of:


     a hazardous substance, or
     any pollutant or contaminant which may present an imminent and
     substantial danger to public health or welfare
Into the environment,
EPA may take response actions consistent with the NCP as necessary to
protect public health or welfare or the environment.
EPA may seek cost recovery from generators, transporters or o/o's of facilities
pursuant to Section 107.

-------
          CERCLA SECTION 106
In the event of a release or threatened release of
A hazardous substance
From a facility
Into the environment
Which release or threatened release may present an imminent and substantial
endangerment to the public health or welfare or the environment,
EPA may initiate an abatement action, or take other action or issue orders to
generators, transporters, or o/o's as may be necessary to protect public health
and welfare and the environment.

-------
§7003
 COMPARISON OK RCRA AND CERCLA CORRECTIVE ACTION AUTHORITIES




§3008(a)        §3013        §3008(h)      §3004(u)      §3004(v)
                                                                            5104
§106
Trigger:








Substances
Covered :






Those
Potentially
1 iaKltk
I_ldDie





Actions
That Can
Be Required:










Handling, stor-
age, treatment.
transportation
or disposal nay
present an imrai-
nent and substan-
tial endangernent
to health or the
environment.
Sol id waste or
hazardous waste.






Any person who is
or has handled
sol id waste or
hazardous waste.
including present
generators, trans-
porters or o/o's.


Action to re-
strain party 1 Sa-
ble Iron hand-
ling, storage.
treatment, trans-
portation or dis-
posal of waste.
or other action
as may be neces-
sary, or both.




Violation of any
RCRA Subtitle C
requirement.














Any person subject
to Subtitle C, in-
cluding genera-
tors, transporters
and o/o's of RCRA
TSDFs.



Immediate con-
pi iance or con-
pi iance within a
specified tine
period; suspen-
sion or revoca-
tion of permit.







Presence or re-
lease fron a
facility or site
may present a
substantial
hazard to hunan
health or the
environment.

Hazardous waste.







Present o/o of a
facility or site,
or in certain
cases the most re-
cent previous o/o
expected to have
sufficient knowl-
edge to carry out
actions required.
Such oonitorinq.
testing, analysis
and reporting as
deemed reasonable
to ascertain the
the nature and ex-
tent of the
hazard. Hay, un-
der certain cir-
cumstances, re-
cover costs in-
curred by EPA for
monitoring, test-
ing, etc.
Information that Release from a
there is or has solid waste man-
been a release. agenent unit at a
facility seeking
a permit.




Hazardous waste Hazardous waste
and hazardous con- and hazardous con-
stituents, stituents.





o/o's of facili- o/o's of RCRA per-
ties subject to nit ted TSDFs.
interinTstatus
under Sec. 3005(e).





Corrective action Corrective action.
or such other re-
sponse measure as
deemed necessary to
protect human
health or the en-
vironment. Orders
can include a sus-
pension or revoca-
tion of authoriza-
tion to operate
under Sec. 3005(e).


Release beyond
the facility
boundary.






Hazardous waste.







o/o's of RCRA
permitted TSDFs.






Corrective action
beyond the facil i-
ity boundary, if
o/o can obtain
permission of
owner of affected
property.







Release or sub-
stantial threat
of release into
the environment.





Hazardous sub-
stances, or any
pollutant or con-
taminant which may
present an inminent
and substantial
danger to publ ic
health or wel fare.
Generators, trans-
porters, o/o's
of facilities.






Removal or remed-
ial action or
other response
measures consis-
tent with the NCR
deemed necessary
to protect public
health or welfare
or the environ-
ment. EPA can
seek reimbursement
of response costs
under Sec. 107.

Release or threat
of release fron a
facility which may
present an immi-
nent and substan-
tial endangernent
to public health
or welfare or the
environment.
Hazardous sub-
stances.






Generators.
transporters,
o/o's of facili-
ties.





Abatement or other
actions as may be
necessary to pro-
tect publ ic
health, welfare
and the environ-
ment. EPA can
seek reimburse-
ment of response
costs under Sec.
107.



                                 DRAFT

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                                    COMPARISON  OF  RCRA AND CERCLA CORRECTIVE ACTION  AUTHORITIES
                    §7003
   §3008( a)
                                                       §3013
   §3008(h)
§300-11 u)
Procedures:
Penalties:
Administrator
nust notify af-
fected State
prior to issuing
notice.
0/0 has right to
an adjudicatory
hearing. Admini-
strator must
notify affected
authorized State.
Opportunity for
proposal confer-
ence with Agency.
Opportunity for
administrative
hearing nust be
provided.
Permitting pro-
cedures.
§3004(v)
                                                                                                          Permitting pro-
                                                                                                          cedures or orders.
                                                                                                 §104
§106
                Civil penalty
                not to exceed
                $5.000/day for
                violation of
                Sec.  7003
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                      SECTION  7003
                       IMMINENT HAZABO

  SBC. 7003. [6973] (a) AUTHORITY OF ADMINIBTRATOR.—Notwith-
standing any other provision of this Act, upon receipt of evidence
that the past or present handling, storage, treatment, transporta-
tion or disposal of any solid waste or hazardous waste may present
an imminent and substantial endangerment to health or the* envi-
ronment, the Administrator may bring suit on behalf of the United
States in the appropriate district court against any person (includ-
ing any past or present generator, past or present transporter, or
past or present owner or operator of  a treatment, storage, or dis-
posal facility) who has contributed or who is contributing to the al-
leged disposal to restrain such person  from such handling, storage,
treatment, transportation, or disposal, to order such person to take
such other action as may be necessary, or both. A transporter shall
not be deemed to have contributed or to be contributing to such
handling, storage, treatment, or disposal taking place after such
solid waste or hazardous waste has left the possession or control of
such transporter  if the  transportation of such waste was under a
sole contractual arrangement arising from a published tariff and
acceptance for carriage by common  carrier by rail and such trans-
porter has exercised due care in the past or present handling, stor-
age, treatment, transportation and disposal of such waste. The Ad-
ministrator shall  provide notice to the affected State of any such
suit The Administrator may also, after notice to the affected State,
take other action under this section including, but not limited to,
issuing such orders as may be necessary  to protect  public health
and the environment.
  (b) VIOLATIONS.—Any person who willfully violates, or fails or re-
fuses to comply with, any order of the Administrator under subsec-
tion (a) may, in an action brought in the appropriate United States
district court to enforce such order, be fined not more than $5,000
for  each day in  which such violation occurs or such  failure to
comply continues.
  (c) IMMEDIATE NOTICE.—Upon receipt of information that there is
hazardous waste at any site which has presented an imminent and
substantial endangerment to human  health or the  environment,
the Administrator shall provide immediate notice to the appropri-
ate local government agencies. In addition, the Administrator shall
require notice of such endangerment to be promptly posted at the
site where the waste is located.
  (d)  PUBLIC  PABTICIPATIPN m   SETTLEMENTS.—Whenever  the
United States or the Administrator proposes to covenant not to sue
or to forbear from suit or to settle any claim arising under this sec-
tion, notice, and opportunity for a  public meeting in the affected
area, and a reasonable  opportunity to comment on the proposed
settlement prior to its final entry shall be afforded to the public.
The decision of the United States  or the Administrator to enter
into or not to enter into such Consent Decree, covenant or agree-
ment shall not constitute a final  agency action subject  to judicial
review under this Act or the Administrative Procedure Act.

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                    SECTION  3008(a)
  SK. 3008. [6928] (a) COMPLIANCE ORDERS.—(1) Except as provid-
ed in paragraph (2), whenever on the basis of any information the
Administrator determines that any person has violated or is in vio-
lation of any requirement of this subtitle, the Administrator may
issue an order assessing a civil penalty for any past or current vio-
lation, requiring compliance immediately or within a specified time
period, or both, or the Administrator may commence a civil action
in the United States district court in the district in which the vio-
lation occurred for appropriate relief, including a temporary or per-
manent injunction.
  (2) In the case of a violation of any requirement of this subtitle
where such violation occurs in a State which is authorized to carry
out a hazardous waste program under section 3006,  the Adminis-
trator snail give notice to the State in which such violation has oc-
curred thirty days prior to issuing an order or commencing a civil
action under this section.
  (3) Any order  issued pursuant to  this subsection may include  a
suspension or revocation of any permit issued by the Administrator
or a State under this subtitle and shall state with reasonable speci-
ficity the nature of the violation. Any penalty assessed in the order
shall not exceed $25,000  per day of noncompliance for each viola-
tion of a requirement of this  subtitle. In assessing such  a penalty,
the Administrator shall  take into account the seriousness of the
violation  and any good faith  efforts to comply with applicable re-
quirements.
  (b) PUBLIC HEARING.—Any order issued  under this section  shall
become final unless, no  later than  thirty days after the  order is
served, the person or persons  named therein request a public hear-
ing. Upon such request the Administrator shall promptly conduct a
public hearing. In connection with any proceeding under this sec-
tion the Administrator may issue subpenas for the attendance and
testimony of witnesses   and  the production of relevant papers,
books, and documents, and may promulgate rules for discovery pro-
cedures.
  (c) VIOLATION OP COMPLIANCE ORDKBS.—If a violator fails to take
corrective action within the time specified in a compliance order,
the Administrator may  assess a civil penalty of not more  than
$25,000 for each day of  continued noncompliance  with  the order
and the Administrator may suspend or  revoke any permit issued to
the violator (whether issued by the Administrator or the State).

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                     SECTION  3013
              MONITORING, ANALYSIS, AND TESTING

  SEC. 3013. [6934] (a) AUTHORITY OP ADMINISTRATOR.—If the Ad-
ministrator determines, upon receipt of any information, that—
     (1) the presence of any hazardous waste at a facility or site
    at which hazardous waste is, or has been, stored, treated, or
    disposed of, or
     (2) the release of anv such waste from such facility or site
may present a substantial hazard to human health or the environ-
ment, he may issue an order requiring the owner or operator of
such facility or site to conduct  such monitoring, testing,  analysis,
and reporting with respect to such facility or site as the Adminis-
trator deems reasonable to ascertain the nature and extent of such
hazard.
  (b) PREVIOUS OWNERS AND OPERATORS.—In the case of any facili-
ty or site not in operation at the time a determination is  made
under subsection (a) with respect to the facility or site, if the Ad-
ministrator finds that the owner of such facility or  site could not
reasonably be expected to have actual knowledge of the presence of
hazardous waste at such  facility or site and of its potential for re-
lease, he may issue an order requiring the most recent previous
owner or operator of such facility or site who could  reasonably be
expected to have such actual knowledge to carry out the actions re-
ferred to in subsection (a).
  (c) PROPOSAL.—An order under subsection (a) or (b) shall require
the person to whom such order is issued to submit to the Adminis-
trator within 30 days from the issuance  of such order a  proposal
for carrying out  the required monitoring, testing, analysis, and re-
porting. The Administrator may, after providing such person with
an opportunity to confer with the Administrator respecting such
proposal, require such person to carry out such monitoring, testing,
analysis, and reporting in accordance with such proposal, and such
modifications in such proposal as the Administrator deems reason-
able to ascertain the nature and extent of the hazard.

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                SECTION  3013(d)
  (d) MONITORING, ETC., CARRIED Our BY ADMINISTRATOR.—(1) If the
Administrator determines that no owner or operator referred to in
subsection (a) or (b) is able to conduct monitoring, testing, analysis,
or reporting satisfactory to the Administrator, if the Administrator
deems any such action carried out by an owner or operator to be
unsatisfactory, or if the Administrator  cannot  initially determine
that there is an owner or operator referred to  in subsection (a) or
(b) who is able to conduct such monitoring, testing, analysis, or re-
porting, he may—
      (A) conduct monitoring, testing, or analysis (or any combina-
    tion  thereof) which  he  deems  reasonable to  ascertain the
    nature and extent of the hazard associated with the site  con-
    cerned, or
      (B) authorize a State or  local authority  or  other person to
    carry out any such action,
and require, by order, the owner or operator referred to in subsec-
tion (a) or (b) to reimburse the Administrator or other authority or
person for the costs of such activity.
  (2) No  order may be issued under this subsection requiring reim-
bursement of the costs of any action carried out by the Administra-
tor which confirms  the results of an order issued under subsection
(a) or (b).
  (3) For purposes of carrying out this subsection,  the Administra-
tor or any authority or other person authorized under paragraph
(1), may exercise the authorities set forth in section 3007.
  (e)  ENFORCEMENT.—The Administrator may  commence  a  civil
action against  any person who fails or refuses to comply with any
order issued under this section. Such action shall be brought in the
United States  district court in which the defendant  is located, re-
sides, or  is doing business. Such  court shall have jurisdiction to re-
quire compliance with such order and to assess a civil penalty of
not to exceed $5,000 for each day during which such failure or re-
fusal occurs.

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                 SECTION 3008(h)
  (h) INTERIM STATUS CORRECTIVE ACTION ORDERS.—(1)  Whenever
on the basis of any information the Administrator determines that
there is or has been a release of hazardous waste into the environ-
ment from a facility authorized to operate under section 3005(e) of
this subtitle, the Administrator may issue an order requiring cor-
rective action or such other response measure as he deems neces-
sary to protect human health or the environment or the Adminis-
trator  may commence a civil action in the  United States district
court in the district in which the  facility is located for appropriate
relief, including a temporary or permanent injunction.
  (2) Any order issued under this  subsection  may include a suspen-
sion or revocation of authorization to operate under section 3005(e)
of this subtitle, shall state with reasonable specificity the nature of
the required corrective action or other response measure, and shall
specify a  time for compliance. If any person  named in an order
fails to comply with the order, the Administrator may assess, and
such person shall be liable to the  United States for, a civil penalty
in an amount not to exceed $25,000 for each day of noncompliance
with the order.

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                  SECTION  3004(u)
  (u) CONTINUING RELEASES AT PERMITTED FACILITIES.—Standards
promulgated under this section shall require, and a permit issued
after the  date  of enactment of the Hazardous and Solid Waste
Amendments of 1984 by the Administrator or a State shall require,
corrective action for all releases of hazardous waste or constituents
from any solid waste management unit at a treatment, storage, or
disposal facility seeking a permit under this subtitle, regardless of
the time at which waste was placed in such unit. Permits issued
under section 3005 shall contain schedules of compliance for such
corrective action (where such corrective action cannot be completed
prior to issuance of the permit) and  assurances of financial respon-
sibility for completing such corrective action.

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                  SECTION 3004(v)
  (v)  CoKBicnvK  ACTIONS  BEYOND  FACILITY  BOUNDARY.—As
promptly as practicable after the date of the enactment of the Haz-
ardous and  Solid Waste  Amendments  of 1984, the  Administrator
shall amend the standards under this section regarding corrective
action required at facilities for the treatment,  storage, or disposal,
of hazardous waste listed or identified under section 3001  to re-
quire that corrective action be taken beyond the facility  boundary
where necessary  to protect human  health and the environment
unless the owner or operator of the facility concerned demonstrates
to the satisfaction of the Administrator that, despite the owner or
operator's best efforts, the owner or operator was unable to obtain
the necessary permission to undertake such  action. Such regula-
tions shall take effect immediately  upon  promulgation, notwith-
standing section 3010(b), and shall apply to—
     (1) all facilities operating under permits issued under subsec-
    tion (c),  and
     (2) all landfills, surface impoundments, and waste pile units
    (including any new units, replacements of existing units,  or lat-
    eral  expansions of existing  units) which receive hazardous
    waste after July 26, 1982.
Pending promulgation of such regulations, the Administrator shall
issue corrective action  orders for facilities referred to in para-
graphs (1) and (2), on a case-by-case basis, consistent with the pur-
poses of this subsection.

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                              CERCLA  SECTION  104

(As amended  by  SARA.   Words  in  italics  represent  additions  made  by
SARA;  bracketed  items have been deleted by  SARA.)
                 SEC. 104. (aXl) Whenever (A) any hazardous substance is released
                or there is a substantial threat of such a release into the environ-
                ment, or (B) there is a release or substantial threat of release into
                the  environment  of  any  pollutant or contaminant  which may
                present an imminent and substantial danger to the public health
                or welfare, the President is authorized to act, consistent with the
                national contingency plan, to remove or arrange for the removal of.
                and provide, for remedial action relating to such hazardous sub-
                stance,  pollutant, or contaminant at any time (including its remov-
                al from any contaminated natural resource), or take any other  re-
                sponse  measure  consistent with the  national  contingency plan
                which the President deems necessary to protect the public health
                or welfare or the  environment [, unless the President determines
                that such removal and remedial action  will be done properly by the
                owner or operator of the vessel  or  facility from which the release
                or threat of release emanates, or by any other responsible party].
                When the President determines that  such action will be done proper-
                ly and promptly by the owner or operator of the facility or vessel or
                by any other responsible party, the President may allow such person
                to carry out the action,  conduct  the remedial investigation, or con-
                duct the feasibility study in accordance  with section 122. No remedi-
                al  investigation or feasibility study (RI/FS) shall be authorized
                except on a determination by the President that  the party is quali-
                fied to conduct the RI/FS and only if the President contracts with
                or arranges for a qualified person to assist the President in oversee-
                ing and reviewing the conduct of such RI/FS and if the responsible
                party agrees  to reimburse the Fund for  any cost  incurred by the
                President under, or in connection  with,  the oversight contract or ar-
                rangement. In no event shall a potentially responsible party be sub-
                ject to a lesser standard of liability, receive preferential treatment.
                or in any other way,  whether direct or indirect, benefit  from any
                such  arrangements as a  response action contractor,  or  as  a person
                hired or retained by such a response action contractor, with respect
                to the release or facility in question. The President shall give pri-
                mary attention to those releases which the President  deems ma\
                present  a public health threat.

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                             CERCLA  SECTION  106

(As amended  by  SARA.   Words  in  italics  represent additions made  by
SARA;  bracketed  items  have been  deleted by SARA.)
                                  ABATEMENT ACTION

                      SBC. 106.  (a) In addition to any other action taken by a
             State or  local  government, when the President determines that
             there may be an imminent and substantial endangerment to  the
             public health or welfare or the environment because of an actual
             or threatened release of a hazardous substance from a facility, he
             may require the Attorney General of the United States to secure
             such relief as may be necessary to abate such danger or threat,  and
             the district court of the United States in.the district in which the
             threat occurs shall have jurisdiction to  grant such relief as  the
             public interest and the equities of the case may require. The Presi-
             dent may also, after notice to the affected State, take other action
             under this section including, but not  limited to, issuing such orders
             as may be necessary to protect public health and welfare and the
             environment.                            :

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TRIGGER
                Imminent and
                 Substantial
                Endangerment
                     Substantial
                       Threat
                 Release
                   Statutory and
                   Regulatory
                   Violation
7003
106
   3013
   104
104
3004(u,v)
3008(h)
3008(a)
7002
[Subtitle C]
                 Solid
                 Waste
                      Hazardous
                      Substances
                Hazardous Waste
                (Statutory Def.)
                   Hazardous Const.
                   Hazardous Waste
                   (Regulatory Def.)
SUBSTANCES
 COVERED
 7003
   104
   106
   7003
7003
3013
104
106
3008(h)
3004(u,v)
7003
3013
106
104
                Present
                 Owner/
               Operator
                   Generator/
                  Transporter
                   Past
                   Owner/
                 Operator
LIABILITY
 7003
 3013
 3008(a)
 3008(h)
 3004(u,v)
 104
 106
7003
3008(a)
104
106
 7003
 3013
 104
 106
                                                              [most recent]

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CORRECTIVE
ACTIONS
                  Any and All
                 Facility Wide
                Corrective Actn
                    Any and All
                   Unit Specific
                  Corrective Actn
                   Emergency
                   Removals
 7003
 106
 3008(h)
 7003
 106
 3008(h)
 3004(u,v)
      104
      106
      7003
      3008(h)
      3004(u,v)
                         Study
                3013
                106
                7003
                3008(h)
                3004(u,v)
PROCEDURES
                Adjudicatory
                  Hearing
 3008(a)
                Streamlined
                  Hearing
             Notify
             States
          Permit
          Procedures
              Notice
              to PRPs
         Conference
          With EPA
3008(h)
7003
106
3004(u,v)
104
106
3013
PENALTIES
$5000/day
7003
3013
§25000/day
3008(a)
3008(h)
Treble
Damages
104 [under 107]
106 [under 107]
                                    104 [under 122]
                                    106 [under 122]
PUBLIC
INVOLVEMENT
REQUIRED
                None
                    Some to
                   Substantial
7003 [unilateral]
3008(a)
3013
104
  7003 [consent] [notice]
  3004(u,v) [notice/comment/hearing]
  3008(h)  [notice/comment/meeting]
  106 [notice/comment/meeting]

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                           DEFINITIONS
RELEASE OF HAZARDOUS WASTE
           Any  spilling, leaking, pumping, pouring,  emitting,
           emptying,  discharging,  injecting, escaping,  leaching,
           dumping, or disposing...
           From:
           To:
                Hazardous  Waste  Management Units
                Solid Waste  Management Units with hazardous
                constituents
                Hazardous  waste  management activities
                Groundwater
                Surface  water
                Air
                Land surface and subsurface  strata

FROM A FACILITY

      •     All contiguous  property,  not limited to solid and/or
           hazardous  waste management areas,  under  the  control of
          . an owner or operator at which units subject to RCRA
           permitting  are  located.

AUTHORIZED TO OPERATE UNDER SECTION 3005(e)

      •     Facilities that  have interim  status
      •     Facilities that  should  have interim  status
      •     Facilities that  had interim  status

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          SCOPE OF CORRECTIVE ACTION
OFF-SITE PLUME
               HAZARDOUS
                WASTE
               MANAGEMENT
                AREA
                               PRODUCT STORAGE

                                  PRE-RCRA UNIT
                              MANUFACTURING AREA
                         RCRA FACILITY
                                SOLID WAS
                               MANAGEME
                                            OFF-SITE PLUME

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     I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     f                 WASHINGTON. D.C. 20460


                         DEC I 6 1985
MEMORANDUM

SUBJECT:  Interpretation of Section 3008(h) of the Solid
          Waste,Disposal Act
FROM:     J.^winston Porter, Assistant Administrator
           ffice of Solid Wfftte and Emergency Response

          CoITrrfie9~~M\ Fride/'kssistant Administrator
          Office of Enforcement and Compliance Monitoring

TO:       Regional Administrators
          Regional Counsels
          Regional Waste Management Division Directors
          Director, National Enforcement Investigation Center

     As part of our effort to support case development activities
undertaken by United States Environmental Protection Agency
personnel, we are transmitting to you guidance on the use of
Section 3008(h), one of the corrective action authorities added
to the Solid Waste Disposal Act by the Hazardous and Solid Waste
Amendments of 1984.  As you are aware, Section 3008(h) allows the
Agency to take enforcement action to require corrective action or
any other response necessary to protect human health or the
environment when a release is identified at an interim status
hazardous waste treatment, storage or disposal facility.  Because
the authority is broad, both with respect to the kinds of environ-
mental problems that can be addressed and the actions that the
Agency may compel, we have produced the attached document to
provide initial guidance on the interpretation of the terms of
the provision and to describe administrative requirements.  The
document will be revised as case law and Agency policy develop.
In addition, the Office of Solid Waste and Emergency Response
intends to develop technical guidance on various types of response
measures and the circumstances in which they might be appropriate.

     In view of the need to issue RCRA permits and to ensure that
the substantial number of interim status facilities expected to
cease operation in the near future are closed in an environmentally
sound manner, we encourage you to use the interim status corrective
action authority as appropriate to supplement the closure and
permitting processes.  Questions or comments on this document or
the use of Section 3008(h) authority in general can be addressed to
Gene A. Lucero, Director of the Office of Waste Programs Enforcement
(PTS 382-4814, WH-527) or Fred Stiehl, Associate Enforcement
Counsel for Waste (FTS 382-3050, LE-134S).

Attachment

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             RCRA SECTION 3008(h)



THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY




              DECEMBER 16, 1985

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I.  INTRODUCTION

     The Hazardous and Solid Waste Amendments of 1984 have substantially

expanded the scope of the RCRA hazardous waste management program.   One of

the most significant provisions is the interim status corrective action

authority, which allows EPA to take enforcement action to compel response

measures when the Agency determines that there is or has been a release of

hazardous waste at a RCRA interim status facility.  Prior to the 1984

Amendments, EPA could require remedial action at interim status facilities

by, inter alia, (1) using RCRA §7003 or O2RCLA S106 authorities if  an imminent

and substantial endangerment may have been presented, or (2) when significant

ground-water contamination was detected, calling in Part B of the RCRA permit

application and requiring corrective action as a condition of the permit. The

Amendments added Section 3008(h) to deal directly with environmental problems

by requiring clean-up at facilities that have operated or are operating subject

to RCRA interim status requirements.

     The purpose of this document is to provide preliminary guidelines on the

scope of Section 3008(h) and to summarize appropriate procedures.  The document

will be revised as case law and Agency policy develop.  Other relevant RCRA

guidances that may be consulted include:

     0 Final Revised Guidance on the Use and Issuance of Administrative Orders
       under Section 7003 of RCRA, Office of Enforcement and Compliance Monitoring
       and Office of Solid Waste and Emergency Response - September, 1984.

     0 Issuance of Administrative Orders under Section 3013 of RCRA, Office  of
       Enforcement and Compliance Monitoring and Office of Solid Waste and
       Emergency Response - September, 1984.

     0 Draft Guidance on Corrective Action for Continuing Releases, Office
       of Solid Waste and Emergency Response - February, 1985.

     0 Final RCRA Ground-Water Monitoring Compliance Order Guidance, Office
       of Solid Waste and Emergency Response - August, 1985.

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                                     -2-


      0 Draft RCRA Ground-Water Monitoring Technical Enforcement Guidance
       Document, Office of Solid Waste  and Emergency Response - August, 1985.

      0 Draft RCRA Prelijninary Assessment/Site Investigation Guidance,  Office
       of  Solid Waste and Emergency Response - August, 1985.


II.   DELEGATIONS OF AUTHORITY

      On April  16, 1985, the Administrator signed delegations enabling the Regional

Administrators, the Assistant Administrator for Solid Waste and Emergency Response

and  the Assistant Administrator for Enforcement and Compliance Monitoring to

exercise Section 3008(h) authority.  There are three new delegations, 8-31, 32

and  33.  The first enables the Regional Administrator or the Assistant Administrator

for  Solid  Waste and Emergency Response  to determine that there is or has been a

release of hazardous waste at or from a RGRA interim status facility.  The second

and  third  delegate the authority to issue orders and sign consent agreements.

The  authority  to refer civil judicial actions is found in Delegation 8-10.

      Because Section 3008(h) is quite broad, both with respect to the types of

environmental  problems that may be addressed and the actions that EPA may compel,

delegation of  Section 3008(h) authority is subject to limitations.  To issue an

administrative order or sign a consent  agreement, the Regions must obtain advance

concurrence from the Director, Office of Waste Programs Enforcement, Office of

Solid Waste and Emergency Response and  must notify the Associate Enforcement

Counsel for Waste, Office of Enforcement and Compliance Monitoring.  Until the

Agency as  a whole gains experience in using the new authority, this requirement

is necessary to ensure that sound precedent is established and national program

priorities are-addressed.  The Office of waste Programs Enforcement intends to

waive advance  concurrence, however, for those Regions that demonstrate sufficient

experience in  using Section 3008(h) as  indicated by the number and quality of

S3008(h) orders submitted for review in the next six months.  Civil judicial

actions will be handled in accordance with existing procedures for referrals.

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     To expedite S3008(h) actions, the Regions should establish procedures for

drafting and reviewing orders and referrals and clearly delineate the roles

and responsibilities of Regional RCRA enforcement and program personnel (including

02RCLA personnel as necessary) and the Office of Regional Counsel in those

processes.  Draft orders should be sent to the Chief, Compliance and Implementation

Branch, RCRA Enforcement Division, Office of Waste Programs Enforcement.

     Headquarters is committed to conducting timely review of S3008(h) orders.

To avoid the delays associated with discussion and review of rough drafts, we

ask that orders be in "near final" form when they are submitted.  Generally,

the orders will be examined to determine whether (1) the elements of proof are

adequately defined and documented, (2) the response to be compelled is practicable

and environmentally sound, and (3) the action supports national RCRA program goals.

Written comments or concurrence will be provided to the Regions within ten working

days of receipt.


III.  SCOPE OF SECTION 3008(h)

Section 3008(h) provides:

     " (1)  Whenever on the basis of any information the Administrator
            determines that there is or has been a release of hazardous
            waste into the environment from a facility authorized to
            operate under Section 3005(e) of this subtitle, the Administrator
            may issue an order requiring corrective action or such other
            response measure as he deems necessary to protect human health
            or the environment, or the Administrator may commence a civil
            action in the United States district court in the district in
            which the facility is located for appropriate relief, including
            a temporary or permanent injunction.

       (2)  Any order issued under this subsection may include a suspension
            or revocation of authorization to operate under Section 3005(e)
            of this subtitle, shall state with reasonable specificity the
            nature of the required corrective action or other response
            measure, and shall specify a time for compliance.  If any
            person named in an order fails to comply with the order, the
            Administrator may assess, and such a person shall be liable to
            the United States for, a civil penalty in an amount not to exceed
            $25,000 for each day of noncompliance with the order."

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                                     -4-

     To exercise the interim status corrective action authority, the Agency
must first have information that there is or has been a release of hazardous
waste to the environment at or from an interim status facility.  Second, the
corrective action or other response measure, in the judgment of the Agency,
must be necessary to protect human health or the environment.  Key terms are
discussed below in greater detail.

"Whenever on the basis of any information the Administrator determines ..."
     The opening clause of Section 3008(h) authorizes the Agency to make the
determination that there is or has been a release of hazardous waste into the
environment on the basis of 'any information'.  Appropriate information can be
obtained from a variety of sources, including data from laboratory analyses of
soil, air, surface water or ground water samples, observations recorded during
inspections, photographs, and facts obtained from facility records.
     The reference to a determination by the Administrator should be considered
in the context of the term 'any information1.  To satisfy any requirement
imposed by the statute, an order should contain a specific determination.  A
civil referral should also .be based on a written determination that there is
or has been a release.

 " ...that there is or has been a release...into the environment..."
     The trigger for issuing §3008(h) orders and initiating civil referrals
is the existence of information that there is or has been a release, which is
a lower threshold than the showing of 'substantial hazard1 under RCRA Section
3013 or ' imminent and substantial endangerment' under RCRA Section 7003 or CERCLA
Section 106.  While the statute does not define the term 'release', the Agency
believes that, given the broad remedial purpose of Section 3008{h), the term
should encompass at least as much as the definition of release under CERCIA.
See 42 U.S.C. §9601(22).  Therefore a release is any spilling, leaking, pumping,

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pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping

or disposing into the environment.  The exemptions described in the CERCLA definition

are considered inapplicable or inappropriate for RCRA purposes, however, and are not

included in the RCRA definition.

     The term 'environment' is also broad.  The legislative history for

Section 3008(h), which discusses use of the authority to respond to releases

to various environmental media, makes it clear that Section 3008(h) is not

limited to a particular medium.  H. Rep. No. 1133, 98th Cong., 2d Sess. 111-112

(1984).  The Agency will use Section 3008(h) to address releases to surface

waters, groundwater, land surface or subsurface strata and air.

     It is not necessary to have actual sampling data to show a release.  An

inspector may find other evidence that a release has occurred, such as a broken

dike at a surface impoundment.  Less obvious indications of release might also

be adequate to make the determination.  For example, the Agency could have

sufficient information on the contents of a land disposal unit, the design and

operating characteristics of the unit, and the hydrogeology of the area in

which the unit is located to conclude that there has been a release to groundwater.

     In addition to on-site information gathering undertaken specifically to

support a §3008(h) action, other sources that may provide information on

releases include:

       0 Inspection Reports.

       0 RCRA Part A and Part B permit applications.

       0 Responses to RCRA §3007 information requests.

       0 Information obtained through RCRA S3013 orders.

       • Notifications required by CERCLA S103.

       0 Information-gathering activities conducted under CERCLA $104.

       0 Informants' tips or citizens' complaints corroborated by supporting
         information.

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                                       -6-
      A determination  that there is or has been a release does not require  that
  specific  amounts  of hazardous waste or hazardous constituents be  found  in
  the environment.  Quantities or concentrations of hazardous wastes or hazardous
  constituents  should be  considered  when ordering interim or complete corrective
  actions,  however, because response actions compelled by the Agency must be
  necessary to  protect  human health  or the  environment.

  "...of hazardous  waste..."
      In contrast  to many  Subtitle  C provisions, the language  of Section 3008(h)
  refers to "hazardous  waste"  rather than "hazardous waste identified or  listed
  under  Subtitle C".  The Agency  believes that  the omission of  a reference to
  wastes listed or  identified  at  40  CFR Part 261 was deliberate, and Congress
  did not intend to limit Section 3008(h) only  to materials meeting the regulatory
  definition of hazardous waste.   The Conference Report specifically endorses the
  use of corrective action  orders to respond to releases  of hazardous constituents.
  H.  Rep. No. 1133, 98th  Cong., 2d Sess.  Ill (1984).  The legislative history also
  indicates that the new  authority should be at least as  broad  as the corrective
  action authority  in the federal RCRA permit program.  Id. at  111-112.   Those
  regulations address both  hazardous waste  and  hazardous  constituents.  Moreover,
  Section 3004(u),  the  'Continuing Releases'  provision requiring clean-up of
  releases  from any solid waste management  unit at a treatment,  storage or
  disposal  facility seeking a  RCRA permit,  applies to releases  of hazardous
  constituents  as well  as releases of listed and characteristic wastes.   H.  Rep.
. No.  198,  98th Cong.,  1st  Sess.  60  (1983).   Therefore, Section 3008(h) may  also
  be  used to compel response measures for releases of hazardous constituents
  from hazardous or solid waste.

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                                     -7-
     "Hazardous constituents" are the substances listed in Appendix VIII to

40 CFR Part 261.  H. Rep. No. 198, 98th Cong., 1st Sess. 60-61 (1983).

According to the legislative history for Section 3004(u), which is read in con-

junction with Section 3008(h), the term also includes Appendix VIII hazardous

constituents released from solid waste and hazardous constituents that are reaction

by-products.  S. Rep. No. 284, 98th Cong., 1st Sess. 32 (1983).  It should be

noted that the legislative history for the new underground storage tank provisions

states that Section 3008 is not applicable to underground storage tanks regulated

under Subtitle I.  Such releases may be addressed by Section 7002 and Section

7003 authorities, however.  H. Rep. No. 1133, 98th Cong., 2d Sess. 127 (1984).

Section 3008(h) remains applicable to releases from underground tanks containing

hazardous or solid waste subject to Subtitle C provisions.



"...fron a facility..."

     For interim status corrective action purposes, EPA intends to employ the

definition of 'facility1 adopted by the Agency in the corrective action

program for releases from permitted facilities.  The preamble to the permitting

requirements for land disposal facilities indicates that the term 'facility'

refers to ..."the broadest extent of EPA's area jurisdiction under Section

3004 of RCRA...[meaning] the entire site that is under the control of the

owner or operator engaged in hazardous waste management." 47 FR 32288-89

(July 26, 1982).  See also the Final Codification Rule.  50 FR 28712 (July 15,

1985).  Therefore, the definition of facility encompasses all contiguous property

under the owner or operator's control.
 i
     The permit program, as amended by Section 3004(u), requires corrective action

for releases of hazardous waste and hazardous constituents from solid waste

management units at a facility.  EPA interprets 'solid waste management unit1

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                                      -8-
 to include any discernable unit used for waste management.  See 50 PR 28712

 (July 15, 1985).  Since the legislative history describes the interim status

 corrective action authority as a "supplement" to permitting authority and

 indicates that the interim status authority should be at least as broad as

 the permit authority, Section 3008(h) clearly authorizes EPA to require corrective

 action for any release of hazardous waste from discernable waste management

 units.  The Agency's authority to use Section 3008(h) .to address releases from

 solid waste management units as well as hazardous waste management units is
•
 discussed in the Final Codification Rule.  50 PR 28716  (July 15, 1985).

      The language of Section 3008(h), however, suggests that Congress did not

 intend to limit EPA's authority to releases from discernable units.  Unlike

 Section 3004(u), Section 3008(h) broadly authorizes corrective action for

 any release from a "facility".  It does not require the Agency to find that

 a release originated in a discernable waste management "unit".

      The legislative history supports this interpretation.  Prior to enactment

 of Section 3008(h), the RCRA regulations required corrective action for releases

 to groundwater from permitted 'regulated units'  (surface impoundments, waste

 piles, landfills and land treatment areas that received Subtitle C hazardous

 waste after a specified date).  40 CFR 264.100 and 40 CFR 264.90.  Congress

 criticized this approach as too slow and too limited, however, and created

 the interim status corrective action authority to "deal directly with an

 ongoing environmental problem at interim status facilities."  H. Rep. No. 1133,

 98th Cong., 2d Sess. 110-112 (1984).  Moreover,  Congress clearly did not intend

 the authority to be limited to the scope of the existing permit program.  For

 instance, the legislative history lists several examples of releases outside

 the regulatory program for which a $3008(h) action is appropriate, including

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                                     -9-

releases from waste management units not required to undertake corrective
action or otherwise exempt from RdRA regulations and releases, such as air
emissions, to environmental media other than groundwater.  Id. at 112.
     The text of the statute, the broad remedial purpose, and the clear intent
to authorize action beyond the scope of the permit regulations support the
position that Section 3008(h) authorizes EPA to address all types of releases
of hazardous waste within a facility.  As discussed previously, the term
'hazardous waste1 encompasses 'hazardous constituents' from both hazardous and
solid waste.
     Section 3008(h) will also be used to address releases that have migrated
from the facility.  New Section 3004(v), which provides that EPA may issue
orders requiring corrective action for releases that have crossed the facility
boundary if the permission of the owner of the affected property can be obtained,
supports the Agency's interpretation that such releases are subject to action
under Section 3008(h).  See also the Final Codification Rule. 50 FR 23716
(July 15, 1985).
     In a §3008(h) order or judicial referral, Agency personnel should describe
hazardous and solid waste management units within the boundary of the facility
and hazardous and solid wastes (and associated hazardous constituents) managed by
the facility in addition to information indicating that a release has occurred.
Since Section 3008(h) unequivocally authorizes EPA to address releases from
units, the order or complaint should establish some link between the hazardous
constituents in a release and the hazardous or solid wastes in waste management
units where possible.  For example, the findings of fact might state that the
facility treats, stores or disposes of certain listed Subtitle C wastes, that
those wastes were listed because they contain the hazardous constituents cited
in Appendix VII to 40 CFR Part 261 and that some or all of those constituents
have been found in the environment, thereby indicating a release.

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                                     -10-
"...authorized  to operate under Section 3005(e)..."



     This clause encompasses several classes of hazardous waste treatment,



storage and disposal facilities.  First, facilities that have met each



requirement for obtaining interim status in a timely manner.are subject to



Section 3008(h).  With respect to those facilities brought into the hazardous



waste management system when the Phase I RCRA rules went into effect, to establish



interim status  EPA must demonstrate that:  (1) the facility was in existence on



November 19, 1980, and; (2) the owner or operator complied with the requirements



of Section 3010(a), regarding notification of hazardous waste activity, and;



(3) the owner or operator submitted a Part A application in accordance with 40



CFR 270.10.  As to those facilities in existence on the date of regulatory or



statutory changes that render the facility subject to the requirement to obtain



a permit under  Section 3005, to establish interim status the Agency must demonstrate



(1) that the facility was in existence on the appropriate date and (2) submitted



a Part A permit application in accordance with the requirements of 40 CFR 270.10.



If a statutory  or regulatory change requires notification under Section 3010,



EPA must also establish that' the facility submitted the notification.



     Second, Section 3008(h) applies to facilities that treat, store, or dispose



of hazardous waste, but have not actually obtained interim status because the



owner or operator did not fully comply with the requirements to submit a Section



3010 notification and/or a Part A.  Such facilities have been allowed to operate



in accordance with a formal enforcement action or an Interim Status Compliance



Letter requiring compliance with Part 265 standards.  Furthermore, the owners



or operators are not relieved of the duty to apply for and obtain a final RCRA



permit.  See e.g., the notice of implementation and enforcement policy for loss



of interim status under Section 3005(e), 50 FR 38947-48 (September 25, 1985).

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                                     -11-
The Agency believes that Congress intended the interim status corrective action
authority to apply to such facilities.  The legislative history for Section
3008(h) supports this position by making it clear that the authority can be
used to address releases from units that do not have interim status, such as
wastewater treatment tanks.  H. Rep. No. 1133, 98th Cong., 2d Sess. 112 (1984).
   •  Third, EPA considers Section 3008(h) to be applicable not only to owners
or operators of facilities in the above two categories but also to units or
facilities at which active operations have ceased and interim status has been
terminated pursuant to 40 CFR Part 124 or Sections 3005(c) and 3005(e)(2) of
RCRA.  Section 3008(h) specifically provides that the interim status corrective
action orders may include a suspension or revocation of the authority to operate
under interim status, as well as any other response necessary to protect human
health or the environment.  Consequently, a corrective measures program can
be inposed under Section 3008(h), even if a facility's interim status has been
taken away as a result of an interim status corrective action order.  The
Agency also believes that Section 3008(h) can be used to compel responses to
releases at facilities that lost interim status prior to a §3008(h) action.
This approach is consistent with Congressional intent to assure that
significant environmental problems are addressed at facilities that treat,
store or dispose of hazardous waste but do not have a final RCRA operating or
post-closure permit.  H. Rep. No. 1133, 98th Cong., 2d Sess.  110-112 (1984).
     Where a State is authorized to administer the RCRA program, the require-
ments for obtaining the State's equivalent to interim status may differ from
those of the federal program.  In authorized States that do not duplicate the
federal procedures, hazardous waste treatment, storage and disposal facilities
that have not been granted or denied a final RCRA permit are generally considered
interim status facilities.  Land disposal facilities that were issued State permits

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                                     -12-
after November 8, 1984 but have not yet received the federal portion of the

permit applicable to continuing releases under Section 3004(u) are treated for

purposes of this guidance in the same manner as interim status facilities.

Similarly, hazardous waste underground injection wells that did not receive a

UIC permit prior to that date will also be treated in the same manner as interim

status facilities.  See the notice of implementation and enforcement policy for

loss of interim status under Section 3005(e).  50 PR 38947 (September 25, 1985).


"...Corrective action or such other response measure as he deems necessary
to protect human health or the environment ..."

     Prior to the Hazardous and Solid Waste Amendments of 1984, the term

"corrective action", in the RCRA regulatory context, referred to removal or

treatment in place of Appendix VIII hazardous constituents in groundwater.

40 CFR 264.100.  Section 3008(h) is not restricted to remedial action for

ground-water contamination, however.  The statutory language and the legislative

history indicate that a wide range of responses to releases to all media from

waste management activities may be compelled.  Financial assurance for any

response measure may also be required.

     The authority can be used to require implementation of one or more stages

of a clean-up program, such as:

     0 Containment, stabilization or removal of the source of contamination,

     0 Studies to characterize the nature and extent of contamination and to
       assess exposure, and health and environmental effects,

     0 Identification and evaluation of remedies,

     0 Design and construction of the chosen remedy,

     0 Implementation of the remedy, and

     0 Monitoring to determine the effectiveness of the remedy.

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                                      -13-

     For example, a §3008(h) order might require that the owner or operator
conduct a study to characterize the nature and extent of contamination, then
select a remedy and submit a corrective action plan to EPA.  The Agency and the
owner or operator would then confer on the plan and amend the order to reflect any
modifications.  H. Rep. No. 1133, 98th Cong., 2d Sess., Ill (1984).  Because a
study on the nature and extent of contamination and the selection and design of
a remedy may require a significant amount of time, Section 3008(h) should be
employed to require interim measures as necessary to protect human health and
the environment prior to completion of the study and selection of a remedy.
Examples of interim remedies that could be compelled include removal of the
waste or containment of the source of the contamination by lining a unit or
erecting dikes.  In some instances, preliminary pumping and treating of affected
groundwater may be appropriate.
     While the information needed to make a determination that there is or has
been a release is minimal, more information may be needed to justify a specific
interim or full remedy.  The Administrator can require "corrective action or
such other response measures as he deems necessary to protect human health or
the environment."  To show that a response may be necessary to protect human
health or the environment, the present or potential threat posed by the release
should be described.  The Agency may consider a variety of factors, including
the quantity of hazardous waste; the nature and concentration of hazardous
constituents or other hazardous properties exhibited by the waste; the facility's
waste management practices; potential exposure pathways; transport and environmental
fate of hazardous constituents; humans or environmental receptors that might be
exposed; the effects of exposure, and; any other appropriate factors.  To compel
corrective action investigations or studies, only a general threat to human
health or the environment needs to be identified.

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                                      -14-
IV.  ADMINISTRATIVE ACTICNS



     Under Section 3008(h), the Agency can issue administrative orders or



commence a civil judicial action.  The decision to pursue an administrative



or judicial remedy must be made on a case-by-case basis since each approach



has advantages and disadvantages.  An administrative order, for instance, can



usually be issued quickly, while preparation for a judicial action may be more



time-consuming and must be referred to the Department of Justice.  On the



other hand, a judicial order or consent decree can be enforced readily since



the court already has jurisdiction of the matter.



     EPA may issue a §3008(h) administrative order to require corrective



action or any response necessary to protect human health or the environment.



The order may include a suspension or revocation of authorization to operate.



If any person named in the order fails to comply with the order, the Agency



may impose a civil penalty not to exceed $25,000 for each day of noncompliance.





Notice to States



     Section 3008(h) does not require that States be given notice of an impending



action.  To ensure that the Agency is fully informed of relevant facts and, in



view of the Federal/State relationship, consultation with the State should



usually precede an EPA action.  To avoid misunderstandings, reasonable notice



should be given to the State when an action is taken.  The notice should include



the location and a description of the facility, the names and addresses of the



owners and operators, the conditions requiring a response and a description of



the action that EPA will require.

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                                      -15-


Elements of Orders

     Because it is the focal point in all proceedings subsequent to its issuance,

the initial order must be as complete as possible.  Failure to develop an

adequate document may have adverse consequences if the Agency seeks judicial

enforcement.  All §3008(h) orders should contain the following general elements:

     0 A statement of the statutory basis for the order.

     0 Factual allegations showing that there is or has been (1) a release (2)
       of hazardous waste or hazardous constituents (3) into the environment
       (4) at or from an interim status facility.  Facts indicating that the
       response is necessary to protect human health or the environment should
       also be presented.

     0 A determination, based on the factual allegations, that there is or
       has been a release of hazardous waste or hazardous constituents to
       the environment from an interim status facility.

     0 An order that clearly identifies the tasks to be performed, and a schedule
       of compliance accompanied by appropriate reporting and approval requirements.

     0 A statement informing the respondent that he has a right to request
       a hearing within 30 days of issuance concerning any material fact in
       the order or the terms of the order.

     8 A notice of opportunity for an informal settlement conference.  It
       is the Agency's policy to encourage settlement of §3008(h) actions
       through informal discussions.  The respondent should be cautioned, however,
       that a request for a conference does not affect the 30 day period for
       requesting a hearing.

    0  A statement that EPA may assess penalties not to exceed $25,000 per
       day of non-compliance with the order.

     It may be appropriate to include a provision for stipulated penalties in

orders on consent.  Such a provision, however, should be drafted to make it

clear that the stipulated penalty is not EPA's sole remedy and that Agency has

not waived its statutory authority to assess penalties under Section 3008(h)(2).

It is recommended that the Regions pursue judicial referrals to impose penalties

for noncompliance with a $3008(h) administrative order rather than issuing

a subsequent order for penalties.

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                                      -16-
     Releases fron liability and covenants not to sue may be sought by parties



negotiating S3008(h) orders.  These.provisions terminate or seriously impair



the Federal Government's right of action against a party.  In general, the



interim CERCLA Settlement Policy (December 5, 1984) may be followed.  Releases



generally will not be appropriate, however, where the extent of contamination,



the reliability of the remedy or long-term operation and maintenance requirements



are uncertain.  If provided, they should be narrowly drawn.  In addition, EPA



personnel should exercise particular care in drafting such provisions to ensure



that they do not restrict the operation and enforcement of the on-going RCRA



regulatory program.  Moreover, the order should also contain a provision reserving



the Agency's right to take additional action under RCRA and other laws.  For



example, EPA should reserve the right to expend and recover funds under CERCLA;



to bring imminent and substantial endangerment actions under RCRA §7003 and



CERCLA §106; to assess penalties for violations of and require compliance with



RCRA requirements under §3008(a); to address releases other than those identified



in the order; to require further action as necessary to respond to the releases



addressed in the order, and;'to take action against nonparties if appropriate.





Hearing Requirement



     To issue a unilateral §3008(h) order, EPA must comply with the requirements



of Section 3008(b) with respect to an opportunity for a hearing.  130 Cong. Rec.



S9175 (daily ed. July 25, 1984).  Although procedures for §3008(a) administrative



actions have been established by regulation (See 40 CFR Part 22), those regulations



are not legally applicable to §3008(h) actions.  Hearing procedures for §3008(h)



actions are under development.  Until formal guidance is available, a Region



that intends to issue a unilateral order should contact the Office of Waste



Programs Enforcement, Office of Solid Waste and Emergency Response.

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                                      -17-


Developnent and Preservation of the Administrative Record

     §3008(h) orders might be reviewed in administrative or judicial proceedings.

Therefore, it is essential that information required by the statute and all

other relevant information or documents obtained by the Agency be compiled in

an administrative record, preserved and readily retrievable.  The EPA official

initiating the action should maintain a file that contains the following:

     0 EPA investigative records, such as inspection reports, sampling and
       analytical data, copies of business records, photographs, etc.;

     0 Reports and internal Agency documents used in generating or supporting
       the enforcement action, including expert witness statements;

     0 Copies of all documents filed with the Regional Hearing Clerk or the
       Presiding Officer;

     0 Copies of all relevant correspondence between EPA and the respondent;

     0 Written records of conferences and telephone conversations between
       EPA and the respondents, and;

     0 Copies of all correspondence between EPA and State or other federal
       agencies pertaining to the enforcement action.

V. CIVIL JUDICIAL ACTIONS

     Under Section 3008(h), EPA may initiate civil judicial action to compel

appropriate relief, including a temporary or permanent injunction, or to

enforce a §3008(h) administrative order.  As noted previously, the decision

to pursue administrative or judicial remedies will be made on a case-by-

case basis.  Generally, however, a civil judicial action may be preferable

to issuance of an administrative order in the following types of situations:

       0 A person is not likely to comply with an order or has failed to
         comply with a §3008(h) order.

       0 A person's conduct must be stopped immediately to prevent irreparable
         injury, loss or damage to human health or the environment.

       0 Long-term, complex and costly response measures will be required.
         (Because compliance problems are more likely to arise during
         implementation of these actions than while carrying out a simple,
         short-term action, it may be better to have the matter already
         before the court for ease of enforcement.)

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                                    -18-
Other factors that could be considered include the value of a favorable decision

as precedent and the need to deter noncompliance by other potential targets for

EPA enforcement action under Section 3008(h).

     A request to file a civil judicial action mast be referred by the Assistant

Administrator for Enforcement and Compliance Monitoring to the Department of

of Justice.  The procedures that Agency personnel should follow to develop a

referral and support litigation are described in the RCRA/CERCIA Case Management

Handbook (August, 1984) and the RCRA Compliance/Enforcement Guidance Manual

(September, 1984).



VI. USE OF SECTION 3008(h) IN RELATION TO PERMITTING, CLOSURE AND OTHER AUTHORITIES

RCRA Permits

     The pre-HSWA regulations applicable to corrective action at permitted facilities

deal only with a remedial program for treatment in place or removal of groundwater

contaminated by a release from a 'regulated unit1.  (Prior to HSWA, the term
                    f
'regulated unit' meant a surface impoundment, landfill, land treatment unit or

waste pile that operated after January 26, 1983.  Enactment of new Section 3005(i),

which provides that the Part 264 groundwater monitoring, unsaturated zone monitoring

and corrective action requirements are applicable at the time of permitting to

landfills, surface impoundments, waste piles and land treatment units that received

Subtitle C hazardous wastes after July 26, 1982, necessitated a corresponding change

in the definition of regulated unit).  Enactment of Section 3004(u) enlarged the

universe of units subject to corrective action at RCRA facilities by requiring

that a facility seeking a RCRA permit address all releases of hazardous waste

and hazardous constituents at any hazardous or solid waste management unit.

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                                      -19-
In addition to increasing the number and kinds of units subject to corrective
action, EPA will use the Section 3004(u) authority to address releases to air,
land and surface waters as well as to groundwater.  Furthermore, Section 3004(v)
allows EPA to require corrective action beyond the facility boundary where
necessary to protect human health and the environment unless the facility
owner or operator is unable to obtain permission from the owner of the affected
property.
     Permitting can be a lengthy process.  Therefore, the interim status
corrective action authority should be used to address significant environ-
mental problems prior to issuance of the permit.  With respect to 'regulated
units', which cannot be permitted until the facility is in compliance with
Part 270 requirements to assess ground-water contamination and develop a
corrective action plan if necessary, Section 3008(h) may be particularly useful
for compelling activities not addressed by the Part 265 and Part 270 regulations.
For instance, interim corrective action measures could be required prior to
permit issuance.  For releases from solid waste management units and hazardous
waste management units other than 'regulated units', Section 3008(h) may be
used to compel interim measures, studies to characterize the nature and extent
of contamination and the threat posed by the release, selection of remedy and
design, construction and implementation of the remedy.
     If an interim status facility is seeking an operating permit or will be
required to obtain a post-closure permit, any §3008(h) action at that facility
should be designed to meet the needs of the permitting process to the extent
possible.  If all necessary steps in a corrective measures program will not be
completed prior to issuance of a permit, compliance schedules in the order
should be developed so that they can be readily incorporated in the permit.

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                                      -20-
RCRA Closures
     EPA believes that the interim status corrective action authority will
be useful in assuring environmentally sound closures of RCRA hazardous waste
management units.  Section 3008(h) may be used to supplement the interim status
closure regulations.  Approval of a closure plan does not limit the Agency's
ability to use Section 3008(h), as well as other applicable corrective action  •
authorities, to deal with releases of hazardous waste or hazardous constituents.
In view of the number of interim status closures anticipated as a result of
new statutory and regulatory requirements, the Regions are encouraged to
employ the interim status corrective action authority to assure that RCRA
hazardous waste management units are closed in a manner that properly protects
human health and the environment.

Other Enforcement Authorities
     Because of the broad scope of Section 3008(h) and the variety of activities
that can be compelled, the interim status corrective action authority may be
employed in conjunction with other enforcement authorities, although it may be
appropriate to issue separate,concurrent orders due to differing hearing
requirements.  For example, where a violation is associated with a release of
hazardous waste or hazardous constituents, a Section 3008(a) action should be
used to. require compliance with the regulation and assess penalties while a
Section 3008(h) action could be employed to compel response actions that go
beyond regulatory requirements.  Section 3013, which allows the Agency to
compel owners or operators of treatment, storage or disposal facilities to
conduct certain types of studies, may be used when the presence of hazardous
waste may present a substantial threat but EPA does not have sufficient
information to make a determination that there is or has been a release.

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                                      -21-
     With regard to imminent and substantial endangerment actions, the legis-
lative history makes it clear that enactment of Section 3008(h) does not
alter the Agency's interpretation of Section 7003.  H. Rep. No. 1133, 98th Cong.,
2d Sess. Ill (1984).  RCRA $7003 or CERCLA $106 actions are appropriate if
conditions at an interim status facility may present an imminent and substantial
endangerment and the Agency needs to move quickly to address the problem.   The
'inminent hazard1 provisions of RCRA and CERCLA may be especially helpful  if
the Agency wishes to take action against responsible parties other than or in
addition to the current owner or operator.

VII.  RESERVATION
     The policies and procedures set forth herein and the internal office
procedures adopted pursuant hereto are intended solely for the guidance
of United States Environmental Protection Agency personnel.  These policies and
procedures are not intended tor do not, and may not be relied upon to create a
right or benefit, substantive or procedural, enforceable at law by a party to
litigation with the United States.  The Agency reserves the right to take  any
action alleged to be at variance with these policies and procedures or that is
not in compliance with internal office procedures that may be adopted pursuant
to these materials.

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          UNITED 5TA7E5 ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON, O.C.  20450
                         3EF2S!S84
MEMORANDUM

SUBJECT:


FROM:
Issuance of Administrative Orders Under Section 3013
of the Resource Conservation and Recovery Act
                            fo.i
                                 3,e ca^ve r y
TO:
Courtney M. ? r i ce v_j^-A-^ /-;.(),
Assistant Adm i n i s trSto r for'Enforcement
  and ComDliance Monito/eThg
                       r—'  '
Lee M. Thomas,  AssisEaScAdminTscrator
Office of Solid Waste and Emergency Response

Addressees
     Section 17 of the Solid Waste Disposal Act Amendments of
1980 (P.L. 96-482) added Section 3013 to the Resource
Conservation and Recovery Act of 1975 (RCRA).   This memorandum
.provides guidance on the use of chat saccion and replaces
earlier guidance issued September 11, 1981.

DELEGATION

     Under current delegation authority Section 3013
Administrative Orders (Orders) are issued by Regional Adminis-
trators (RAs) with the advance concurrence of the Director,
Office of Waste Programs Enforcement (OWPE), except in cases
of national significance or in multi-regional cases, when
the Director, OWPE, issues the Orders.  The Assistant Adminis-
trator for Enforcement and Compliance Monitoring (OECM) ,  consults
as requeste-d on Orders,  refers Section 3013 judicial actions
to the Department of Justice,  and sends notices of such action
to the appropriate RA and to the Director, QW?E.  Further
rede legation is currently under raviaw.

FINDINGS REQUIRED FOR ISSUANCE

Section 3013 fa) .  AUTHORITY OF ADMINISTRATOR.

          "If the Administrator determines, upon receipt
          of any information,  that -

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               (1) the presence of any hazardous waste at
          a facility or site ac which hazardous waste  is,
          or has been, stored, treated, or disposed of, or

               (2) the release of any such waste
          from such facility or site may present a
          substantial hazard to human health or the
          environment, he may issue an order requiring
          the owner or operator of such facility or
          site to conduct such monitoring, testing, •
          analysis, and reporting with respect to
          such facility or site as the Administrator
          deems reasonable to ascertain the nature
          and.extent of such hazard."

     Under subsection (a), before an .Order may be issued, the
RA or, in cases of national significance or multi-regional
cases, Che Director, OWPE, muse find that sufficient information
has been received to determine that:

          (a)   the presence of hazardous waste]/at a site may
present a substantial hazard to human health or the environment,
21;

          (b)   the release of any such waste from the site may
present a substantial hazard to human health or the environment.

     The requirement for "information" means that some reliable
information upon which a reasonable person would base a decision
or take action has been gathered or presented before issuance
of the Order.   Such information may include laboratory analysis
of samples,  observations recorded in the course of an inspection,
and citizens complaints corroborated by supporting information.
Some background information regarding the type and quantity of
waste likely to be found on the site can be located in EPA and
State agency records,  as well as by the use of site specific
requests under Section 3007 of RCRA and/or Section 10^- of the
 U  Note that the exclusion of gasoline from the definition
     of hazardous substances under CSRCLA is not applicable
to the hazardous wastes as defined in RCRA.   Accordingly, §2013
Orders may be useful enforcement tools in some situations
involving leaking underground storage tanks  (LiJSTs) .  tfote,
too, that the statutory definition of hazardous waste (RCRA
§1004(5)) is applicable in §3013 Orders,  not the Subtitle C
regulatory definition.

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                             - 3 -
Comprehensive Environmental Response, Compensacion, and
Liability Ace of 1980 (CERCLA)."  Section 3013 Orders may be
used in situations where information required under Subtitle C
has not been submitted if other factors support the determina-
tion that a substantial hazard may exist.  In cases where
information required to be submitted under Subtitle C has not
been submitted, and no indication of substantial hazard is
presented, enforcement action under Section 3008 may be
appropriate. £/

     It .should be noted that the mere presence of hazardous
waste at a site or facility is. sufficient to cause the issuance
of an order, provided that the information indicates that the
presence of the waste may present a substantial hazard.  This
is true even in the absence of definite evidence of an actual
release of waste, and covers the cases where there is a threat
of release, or where it is difficult, if not impossible,  to
ascertain, without extensive sampling, analysis and monitoring,
whether a release has actually occurred or will occur.

     Finally, a determination as to whether known and detectable
or potential releases from the site may present a substantial
hazard requires gathering of sufficient information to make a
determination of two essential prerequisites:
2/   Section 106 of CERCLA also may be used to issue an order
     to prior owners/operators under circumstances where the
"imminent and substantial endangerment" standard can be met.
In such situations, it may be advantageous to issue a §3013
Order in conjunction with a §106 Order under CERCLA.  In
deciding whether to issue a §106 Order under CERCLA or a §3013
Order under RCRA, the main consideration should be whether
available information can support a. finding that there may be
an "imminent and substantial endangerment."  If such a finding
can be supported, then a §106 Order or a §106 Order in conjunc-
tion with a §3013 Order is appropriate.  The RI/FS policy
regarding, circumstances under which a potentially responsible
party may be required to perform an RI/FS should be consulted.
Section 3013 Orders should not be used to evade the RI/FS
policy.  Remedial investigations may be performed pursuant
to a §3013 Order, but feasibility studies are beyond the
jurisdictional scope of §3013.

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     (I) That there is a known or potential release of hazardous
waste from the site.

     (2) That the release "may present a substantial hazard"
to human health or the environment.

     Number (1)  above may be determined in a variety of ways,
including actual observation of escape from the site of a
substance known to be hazardous, by governmental sampling or
analysis, or through information supplied by the owner/operator.
(See discussion of "information" above.)  It is significant
that Congress used the words "may present" rather than "is
presenting",  such as had been used in Section 7003 prior to
the 1980 amendments.  As in Section 7003, the effect of the
words "may present" is to require that the information
presented to the RA or Director, OWPE, show only that there is
a possibility or potential of a substantial hazard to
human health or the environment, rather than to show that the
hazard actually exists.

     Whether a "substantial hazard" may exist involves
consideration of some of the same factors as those used to
determine whether an "endangerment" exists under Section 7003.
The standard itself, however,  is a lesser standard'than that
under Section 7003 •  Again, actual ham to human health or the
environment need not be shown, but only that the potential for
harm may exist through a release or threat of release of
hazardous waste from a site. " Whether a release or threat
thereof may present a "substantial hazard" essentially depends
upon a number of factors, such as the likelihood of a release
of hazardous wastes, the manner of release of the hazardous
waste from the site (i.e.,  ground or surface water, air, etc.),
the characteristics and amount of the waste discharged,  current
or potential use of the portion of the environment affected,
potential for exposure to humans and the environment,  and
other related factors.  If the site has been investigated and
prioritized by the Federal government as to hazard presented,
as required by Section 105 of CZRCIA, chat determination will
be useful in assessing the risk.

TO WHOM THE ORDER MAY 3E ISSUED

     Section 3013(a) authorizes issuance of an order against
the present owner or operator.  Under the circumstances set
forth in subsection (b),  issuance of an order may also be
appropriate against a prior owner or operator.

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Section 3013 (b).   PREVIOUS OWNERS AND OPERATORS.

         "In Che case of any facility or sice no c in
          operacion at Che time a determination is made
          under subsection (a)  wich respect to the
          facility or site, if the Administrator finds
          that the owner of such facility or site could
          not reasonably be expected to have actual
          knowledge of the presence of hazardous waste
          at such facility or site and of its potential
          for release, he may issue an order requiring
          the most recent previous owner or operator of
          such facility or site who could reasonably be
          expected to have such actual knowledge to carry
          ouc the actions referred' to in subsection (a)."

     Subsection (b) entitles the Agency -- under certain
circumstances -- to go back in time in the chain of title to a
previous owner or operator of the site.  The conditions which
must be met for issuance of a Se.ccion 3013 Order to a previous
owner or operator of a site are:

          (1)  The facility or site must be one which is not
"in operation" at the time a determination is made under sub-
section (a) and (2) the present owner'of the facility or site
"could not reasonably be expected co have actual knowledge of
the presence of hazardous waste at such facility or site and
of its potential for release."   While in many cases there will
be little question as to whether a facility is "in operation"
(e.g.,  a closed landfill), in other cases that determination
wi11 no t be as clear.  We believe that it was the  intent of
Congress to place an interpretation on the words "in operation"
which would enable EPA to gather information concerning potent-
ially hazardous sices from those in the best position to provide
that information - the previous owners or operators.  We there-
fore believe that a facility is not "in operation" if it has
been abandoned or is not otherwise being actively operated as
a hazardous waste facilicy by "he current owner or operator.

     It should be no ced chac if che present owner of che site
could reasonably be expected co have actual knowledge of both
tne presence of the waste and ics pocencial for release (even
chough che wasce had been placed in or on che sice by a previous
owner or operator), this subsection *ould appear to prohibit
the issuance of an Order to the previous owner or operator.

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                             - 6 -
     Assuming che two conditions discussed above are mec,  the
Order may be issued only to the "most recent previous owner or
operator of such facility or site who could reasonably be
expected to have such actual'knowledge.  ..."  Whether an
owner or a previous owner or operator of a site could "reason-
ably" be expected to have actual knowledge of the presence of
the waste or its potential for release can best be determined
through evidence showing the use of the facility during the
period of ownership by the previous owners.  For example,  if a
previous owner dumped uncontainerized waste into an unlined
pit and then covered it with dirt, he can reasonably be expected
to have the actual knowledge of both the presence and potential
for release of the waste.  The same determination could be
made for an owner who stored waste in leaky containers on the
bare ground without benefit of a pad or base and containment
walls.

ELEMENTS OF AN ORDER

Section 3013 (e).  PROPOSAL.

         "An order under subsection (a)  or (b)  shall
          require the person to whom such order is
          issued to submit to the Administrator within
          30 days from the issuance of such order a
          proposal for carrying out the required
          monitoring,  testing,  analysis,  and reporting.
          The Administrator may,  after providing such
          person with an opportunity to confer with
          the Administrator respecting such proposal,
          require such person to carry out such moni-
          toring,  testing,  analysis,  and reporting in
          accordance with such proposal,  and such
          modifications in such proposal as the
          Administrator deems reasonable to ascertain
          the nature and extent of the hazard."

     Unless EPA and the respondent have agreed in advance en a
work plan to be incorporated in the Order,  the Order must
require the respondent to prepare and sufamic a proposal for
the monitoring,  testing,  analysis,  and reporting Program for
the site from which the waste is or may be escaping.  Such
proposal must be submitted within 30  days from the date of
issuance of the Order.  The Order should recite (1)  the informa-
tion and facts upon which it is based;  (2)  the threat or
potential threat to human health and/or the environment;  and,
(3) outline with some degree of specificity the general areas

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of concern which should be addressed in che proposal to be
submitted by che respondent.  Attached to this memorandum is
an example of an Order (Appendix A) outlining the general
areas of concern to be addressed in the requested sampling,
analysis and monitoring program.  3/

     The Order shall direct the respondent to conduct the
monitoring,  testing, analysis,  and reporting program and
should be specific as co details of the program.  For example,
the Order may require the proposal to set forth the number,
location and depth of monitoring wells,  the number and
frequency of samples to • be taken,  the parameters of the
analysis, reporting requirements and ocher related details,
including dates by which each element should be commenced and
completed and,  where appropriate,  requirements for submission
of status reports to EPA as work on the program progresses.

     The Order, if issued unilaterally,  must advise the
respondent of his right to submit in writing any legal or
technical defenses,  objections or contentions which he may
desire to make, and that he is entitled to confer in person
and/or by attorney with EPA regarding the proposal.  The Order
must also specify the name, ' address and telephone number of
the appropriate official of EPA whom the respondent may contact
to arrange a conference.   Th-e Order should be.sent to the
respondent by certified mail,  return receipt requested.

     In some instances;  contacts with the owner/opera tor may
result in issuance of a §3013 Order on a consensual basis.  An
example of an Order issued after conferring with the owner/
operator ("Consent Order") is attached (Appendix 3).  In such
cases, the Order should note that the respondent has already
conferred with EPA and consents to issuance of the Order.

    In addition,  when a plan already has met with the approval
of the parties, it is advisable to include in the Order a pro-
vision such as:

       Respondent agrees to implement the requirements
       of the work plan set forth below for carrying out
       investigative activities including monitoring,
3/   The appendices are attached as examples only.  They are
     not intended to dictate how Orders should, be written.  The
unique circunstances of each case necessitates some latitude in
the form of such Orders.

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                             - 3 -
       testing, analysis and reporting  at  the  facility.
       This work plan has been developed jointly by EPA
       and Respondent.  EPA and Respondent agree that
       incorporation of this work plan  in the  instant
       Order satisfies the requirement  under Section
       3013(c) that Respondent submit a proposal and
       that EPA provide an opportunity  for Respondent
       to confer regarding such proposal.

     An Order is "final" in that it requires the preparation
and submission of a plan.  However, no actual  sampling, analysis
or monitoring should be conducted until after  approval of a
satisfactory plan submitted by the .respondent  (except in cases
delineated in"subsection (d)(l) of §3013).

REVIEW OF THE PROPOSAL

     The proposal submitted by the respondent  is noc required
to be in any particular form.  It must be critically -reviewed
by EPA to ensure that it covers the areas addressed by the
Order, both from a legal and technical standpoint.  The proposal
should be as specific as the circumstances and knowledge of
the site will allow, setting forth, for example, the number and
location of monitoring wells, the frequency of samples from
the wells, the location, of soil samples,• parameters and proto-'
cols for analysis, and so forth.  In some cases the extent of
the work required will be such that submission of a detailed
plan may be difficult to accomplish in a 30 .day period.  In
such cases, it may be sensible to require submission of a
broader,  less detailed plan within the 30 day  period and a
lengthier, detailed plan after the respondent  has had an oppor-
tunity to confer with EPA.  In cases in which  the sampling,
analysis, testing and monitoring program is to be carried out
in stages, or over a significant period of time, the proposal
should include a statement that EPA shall be furnished periodic
status reports from the respondent regarding progress being
made in implementation of the program.  The Order should always
state that EPA has a right to approve any proposed changes or
modifications after initial approval has been  given to the
proposal.

     In reviewing a proposal, EPA personnel should examine two
areas:  first, the adequacy of the proposal to achieve the
goals of the sampling, analysis and monitoring programs; and
second, the competence of the persons or firms who will be
implementing the proposal to conduct the sampling,  analysis,
monitoring and reporting activities in a. technically acceptable
manner, so that the information oroduced thereby will be

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                             - 9  -
reliable.  The second area --  the  competence _of  the_ contractor
or consultant who will implement the" 'program  -"-"Ts "de'llcate
because EPA should not place  itself  in  the  position of formally
appjroving or disapproving, the  professional  qualifications  of
particular^ contractors and it  should .. be.,made__clear  to the
jjes^onlienrc~'"cHa¥'"ch"e respondent, not  EPAL_.is__res_p_onsible for
?he__cofflpetencle "~d£. tEe --co.ritract.or .  However,  the  design and
implementation of the type of  program which will be conducted
under a §3013 Order requires engineers  and  other persons who
are knowledgable in a variety  of areas  such as hydrology,
geology and chemistry, among others.

     While an owner or operator of a site should be at liberty
to hire a contractor of his own choice,  EPA should  always
require the technical aspects  of the proposal to be very
detailed and. specific so as to avoid misunderstandings during
the implementation of the program and should also require
frequent status reports while  the work  is in progress.

     In the event a conference results  in a modified proposal,
the respondent should either resubmit the entire proposal,
as modified, or if the modifications are not extensive,  the
respondent may submit a separate amendment  to the proposal.
In all cases, the .proposal, and any  amendments or modifications,
should be signed by the respondent.

PROPOSAL CONFERENCE

     The Order must give 'the respondent  an  opportunity to
confer on the proposal submitted for the monitoring plan.
This conference will also afford the respondent  the opportunity
to indicate why the respondent should not be  subject to the
Order.  A record in the fonn of a tape  recording or steno-
grapher's notes should be made and included in the  case file.
In the event of subsequent litigation over  the Order,  the
recording or notes can then be transcribed  for use,  if necessary.

     While the proposal must be submitted to EPA within 30 days
after the date of the Order, we interpret §3013(c)  to allow  a
conference requested by che respondent  to be held either before
or after the proposal is submitted.  However, the holding  of a
conference cannot vary or extend _tiie 30  day period  jo r submission
of the proposal , so that i± a  conference is requested for  a
time before the proposal is submitted,  the  conference must be
held and the proposal submitted within  the  30 day period.
Conferences to be held after submission  of  the proposal should
be scheduled as soon as possible aftar  submission (i.e., not
more than 30 days thereafter) , so as to  avoid delay in finalizing
the proposal.

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                             - 10 -
     Under che statute, chare is no requirement for public
notice of the conference or any requirement that third parties
be admitted to the conference.  However, nothing precludes  the
admittance of a non-party to the conference, if the Region
determines that such' participation would be beneficial or
desirable.  In certain cases, the Department of Justice, the
State or local pollution control agency and others may be
appropriate attendees or participants.

     Pursuant to information developed at the conference, EPA
may modify the proposed sampling,  analysis and monitoring
requirements contained in the Order as may be reasonably
required to ascertain the nature and extent of the hazard.
This may include modifications making the requirements more
strict or extensive, as well as less extensive.

APPROVAL OF PROPOSAL

     An acknowledgement letter must be issued under §3013 after
review of the respondent's proposal has been completed.  The
purpose of the letter is to acknowledge in writing the decision
EPA has reached after review of the respondent's proposal.
It should be signed, if possible,  by the person who signed  the
Order.  Section 3013(c) permits EPA to modify the proposal
submitted by the respondent or to develop its own program of.
sampling, analysis and monitoring in .order to determine the
nature and extent of the hazard.  The letter should state
whether the proposal has been accepted and should specify what
modifications, if any, have been made to the proposal.  This
can be accomplished by attaching a copy of the proposal, as
modified, to the acknowledgement letter.  In the unlikely
event that EPA plans to incorporate any major changes in the
Order that were not discussed at the conference, EPA should
notify the respondent of such changes before issuing the
acknowledgement letter and provide reasonable opportunity to
the respondent to comment upon such modifications.

MONITORING•PROGRAM BY EPA. STATS.  OR OTHER PERSONS

Section 3013(d).  MONITORING, ETC., CARRIED OUT BY ADMINIST3UTOR

         "(1)  If Che Administrator determines that no
          owner or operator referred to in subsection
          (a)  or (b) is able to conduct monitoring,
          testing, analysis, or reporting satisfactory
          to the Administrator, if the Administrator
          deems any  such action carried out by an owner

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                             - LI -
          or operator co be unsatisfactory, or  if  the
          Administrator cannot initially determine  that
          there is an owner or operator referred to in
          subsection (a) or (b) who is able to  conduct
          such monitoring, testing, analysis, or reporting,
          he may—

               (A)  conduct monitoring, testing, or
               analysis (or any combination thereof)
               which he deems reasonable to ascertain
               the nature and extent of the hazard
               associated with the site concerned,  or

               (B)  authorize a State or local  authority
               or other person to carry out any such
               action,

          and require,  by order, the owner or operator
          referred to in subsection (a) or (b)  to
          reimburse the Administrator or other
          authority or person for the costs of  such
          activity.

          (2)  j^o order may be issued under this
    :      subagction .requiring reimbursement of
          the~cos't¥ or any~acci.oji carried out "By the
          AdmTnTsTrator which confirms the results
          of an order issued under subsection•(a)
          or (b) .

          (3)  For purposes of carrying out this
          subsection, the Administrator or any
          authority or other person authorized
          under paragraph (1), may exercise the
          authorities set forth in Section 3007."

     The provisions of this subsection provide  for  three
situations where the Agency may carry out the monitoring
activities or authorize others to do so-.

          (1)  Where no owner or operator is able  to conduct
these activities satisfactorily;

          (2)  Where the tes^tin^ conducted by the  owner/ooerator
is determined to be unsatisfactory; of

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                              -  12  -
           (3)  Where  Ic  cannot be  determined  initially whether
 there  is  an  owner  or  operator able to  conduct the required
 monitoring and testing.

     Numbers  (1) and  (3)  are similar;  the  distinction is
 that in number (3) no owner/operator can be identified or
 located initially, whereas  in number (1) the  owner/operator is
 identified but unable or unwilling to  conduct the required
 activities.

     In numbers  (1),  (2)  and (3) the important consideration
 is whether the owner/operator will conduct the required activi-
 ties in a manner satisfactory to EPA,  i.e.,  in a  timely manner
 and in a  manner  technically consistent with EPA requirements.
•Subsection (d) is  intended  to allow EPA to conduct the monitoring,
 testing,  analysis  or  reporting  itself  or to authorize the State
 or other  third parties to perform  the  required activities if
 delay or•inadequate performance will result from  relying  on the
 owner/operator.

     Once EPA or some other authorized person has performed
 monitoring,  testing,  analysis or reporting pursuant to §3013(d),
 an Order  may  be  issued to require  reimbursement of the costs.
 The Order for Reimbursement should be  issued  to th.e present
 owner or  operator  or  the most recent previous owner or operator  ••
 who could reasonably  be  expected to have actual knowledge of
 the hazardous waste.   An example of an Order  for  Reimbursement
 is attached  as Appendix  C.

     Note that subsection (d)(2) prohibits an Order for
 Reimbursement if the  results obtained  confirm the results of
 an Order  issued under subsection (a) and (b).  Our interpre-
 tation is that this provision prohibits seeking reimbursement
 in circumstance  (2) above, where the Agency acted because of
 information  leading to the  belief  that the results from the
 owner/operator tests  were inaccurate or unreliable,  and our
 subsequent tests,  in  fact,  confirm the owner/operator test
•results.

 ENFORCEMENT  OF THE ORDE3.

 Section 3013  (e).  ENFORCEMENT.

          "The Administrator may commence a civil
          action against any person who fails or
          refuses  to  comply with any order issued
          under  this  section.   Such action shall  be

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                             - 13 -
          brought in the Uniced States district
          court in which the defendant is located,
          resides, or is doing business.  Such court
          shall have jurisdiction to require compliance
          with such order and to assess a civil penalty
          not to exceed $5,000 for each day during
          which such failure or refusal occurs."

     This subsection authorizes bringing a civil action to
require compliance with any Order issued under Section 3013 and
to assess a civil penalty of not to exceed $5,000 for each day
of. noncompliance with the Order.  This authority includes
commencement of a civil action to enforce an Order issued under
Section 3013(d)(l) for reimbursement of costs incurred by EPA
or other authorized person who conducts the monitoring, testing,
or analysis in lieu of an owner/operator.

     Any referral of a civil action under Section 3013(e)
should follow the format used for other civil actions.

DEVELOPMENT AND PRESERVATION OF THE ADMINISTRATIVE RECORD

     We attempt to emphasize throughout this memorandum the
importance of obtaining the information required by the statute
prior to the issuance of the Order.  Equally important is the
establishment and preservation of a record where the information
and all documents relevant to the reimbursement or enforcement
proceedings described herein should be kept, since the Order
may eventually be reviewed by a court, and EPA must have a
complete record of the information which formed the basis for
its decisions and documentation of the opportunity afforded
the respondents to confer.  The acknowledgement letter is an
important part of the documentation.

     The Region should encourage communications with the
respondent and his representatives to be in writing insofar
as possible.  Written records of communication should be made
of all telephone conservations with the respondent and a record
should be made of any conference held with respondents in
accordance with this guidance.

     In the event EPA should reject any objections, defenses
or contentions of the respondent, or modify the respondent's
proposal for monitoring, testing, analysis and reporting
without the respondent's agreement, EPA should set forth the
reasons for such rejection or modification and furnish those
reasons in writing to the respondent..

Attachments

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                                                      APPZTOIX A
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              UNITED  STATES  ENVIRONMENTAL PROTECTION  AGENCY
IN THE .MATTER OF:
Environmental  Protection Agency,
                   Complainant,
) •    RCRA Docket !
     FINDINGS OF FACT,  DETERMINATION,
     AND ORDER REQUIRING SUBMISSION
     AND IMPLEMENTATION OF PROPOSAL
     FOR SAMPLING,  ANALYSIS.
     MONITORING AND REPORTING
                   V.
                   Respondent.
Proceedings under § 3013 of
the Resource Conservation and
Recover/ Act, *2 U.S.C. § 6934.
                            PRELIMINARY  STATEMENT
    1.  This is an administrative action instituted pursuant to Section 3013
of the Resource Conservation and Recovery Act [42  U.S.C. Section 5534],
hereinafter referred to as "the Act" or "RCRA".   The Complainant is
Region    of the United States Environmental  Protection Agency (EPA).
FINDINGS OF FACT,  DETERMINATION AND ORDER PAGE 1  of 3

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         2.   The  Regional Acrrinlstrator of EPA Region   , by and through
                *
 2     author!ty-duly delegated  from the Administrator of EPA, having bean

 3    'presented with information concerning the presence of hazardous wastes that

 4     are being stored, treated or disposed at the facility described below, with

 5     information  concerning  potential releases of hazardous wastes  fron  this


 6     facility, and with  information  that these circumstances may present a-

 7     substantial  hazard  to human heal.th or the environment, hereby  issues  the

 8     following Findings  of Fact, Determination and Order Requiring  Submission,

 9     pursuant to  Section 3013  of the Act [42 U.S.C. Section S.934] that are set

10     forth  below.

11                                  FINDINGS CF FACT
                                                                           ^
12        1.   *            '      ;  •• .                          .' '  ,,  submitted a

13     Notification of  Hazardous Wasts Activity (EPA Fora 8700-12) for its facilit:

14     at                . which was received by Complainant on  August 15, 1330.

15     This' notification  satisfied Section 3010 of the Act.  This notification  •

16     indicated that            .                  ., was a generator, and  treater,

17     storer and/or  disposer  of hazardous waste.  The facility  is located

18                       .  .    •


19         2.  *           '                ., submitted a Part  A application (EPA

20    Forms 3510-1 and 3510-3)  '                 .     , which was received by

211    Complainant on  November 13,  1580,  as  required by 40 C"R  Section
                      *

22    270.10(e)(i).   This application stated that '

23    was a starsr,  trsatar and disposer of hazardous waste  at the  facility.

24        3.  '                             , has operated a  facility at
 ^e
      since at least                    (from  Respondent's  Part A application),

 25    and including a period  of tine  November  13, 1580, the  effective  date of

      regulations promulgated pursuant to RCRA.

 281   FINOIMGS OF FACT, DETERMINATION AND ORDER  PAGE  2  of 3

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 1        4.   Respondent's facility Included a landfill of approximately 55



 2     acre-feet  1n  size consisting of at least 12 trenches, each of which was



 3     approximately 10- feet wide, '20" feet 'long, and 4  feet 'deep.  Wastes,  •



 4     including  hazardous wasta and hazardous waste constituents, generated  by



 5     Respondent's  facility were  periodically placed on and into the landfill



 6     prior to and  after November 19, 1980.  Respondent thus owns and operates a



 7     hazardous  waste  management  facility       •        ' for the treatment,



 8     storage, and/or  disposal of hazardous wastes,



 ^         5.   Respondent, in  correspondence dated                 '.t advised



10     Complainant that Respondent was discontinuing the landfill ing of hazardous



11     wastes  and requestad withdrawal of the Part A application.



          6.   Complainant issued  a letter to Respondent on             ,  formally



13     requesting the  submission of the Part B application.  The letter required



14     Respondent to submit the Part B application to the Complainant within  six



15     (5) months of receipt of the request. '
                                         '


16j        7.   Respondent, in  correspondence dated             ,, advised


17'
  ;    Complainant that it would not submit a Part 8 application.  Respondent

«Q

      stated that effective >                . Respondent was storing all  hazardous


19
      wasta in drums  and storing  such waste on-sita for less than ninety (90) days.



20         8.   Complainant  issued  a lettsr to Respondent on              .,



21     requesting Respondent to provide documentation that the landfill.units at

•yy

      the facility  were  properly  closed and that the units would be properly


23
      maintained after closure, if necessary.   Complainant specifically  requested,



      in part, that Respondent, demonstrate closure occurred in  a manner  that



      "controls, minimizes or eliminates  to the extant necessary to protact huTian



      health and the environment, any  post closure escape of hazardous wasta



      constituents  to the  ground, groundwater,  surface waters,  or to  the


23     «.    .     ,                       •
      atnosohere.

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    9.   Respondent,  in correspondence  datad                ,  and
                ., stated Its contention that'the  landfill ing activity at
the facility was properly closed.   Said correspondence Included laboratory
analyses of samples of landfilled  material  from the facility.
These laboratory analyses show the presence of  hazardous constituents, as
defined in 40 CFR Part 261, in the landfilled material as summarized below:
                                            Range  of levels
Hazardous Constituents                       detected, pom
Toluene                                     3.1 to 58.7
Lead         '                               2.6 to 22.6 '
Chromium                  •                  13.5 to 49.5'
Other Constituents
Xylene  .                           \.1.5 to 25.8
Methyl  Isobutyl Ketone         .           .  1.2 to 9.3

A'dditionally, all of the samples of landfilled materials exhibited the
17   hazardous waste characteristic of ignitability  by  having a flash point less
than- 60*F, indicating the hazardous waste had not been rendered
non-fgm'table prior to landffVling.
    10.  Respondent's correspondence dated                 stated that no
analysis of groundwater quality has been performed.  Consequently, no
22   evidence exists to determine whether hazardous waste or hazardous waste
     constituents have migrated to groundwater.
         11.  The continued presence of hazardous waste constituents in the
        jo'ndent's landfilled material could result in release of hazardous >
     constituents by leachate production and migration off-site by means of
 FINDINGS OF FACT,  DETERMINATION  AND  ORDER PAGE 4 of S

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surface run-off or groundwater flow.   Respondent  has  not  submitted to
Complainant*documentation that Respondent's  facility  is not OP may not be
releasing hazardous wasta or hazardous w'asts constituents to ground or
surface water.
                               DETERMINATION
Based upon the  aforementioned data and information,  ft is hereby determined
pursuant ta Section 3013 of the Act that:
    1.   The                         facility,  as described hereinabove,
owned and operated by Respondent, .is a facility at which  hazardous wastes
are present and at which hazardous wastes  have  been  stored, treated, and
disposed.
                                                         •            ^
    Z.   The methods and practices employed  at  the facility for treating and
disposing of hazardous wastes are aVid were such Wat the  presence of
anc
hazardous wastes at the facility may present a  substantial  hazard to Hunan
health or the environment.
    3.   Hazardous wastes and/or hazardous waste constituents released at
the facility may have migrated to surface or ground waters.  The release of
hazardous wastes at and/or from the facility may present a  substantial
hazard to human health or the environment,
          ORDER REQUIRING SUBMISSION AMD  IMPLEMENTATION  OF  PROPOSAL
              FOR SAMPLING, ANALYSIS. MONITORING AND SPORTING
Pursuant to Section 3013 of the Act [42 U.S.C.  § 6934],  and in order to
ascertain the nature and extent of the hazard at the
facility as described hereinabove, Respondent is hereby  ordered to  submit 3
written proposal to_EPA for the. sampling, analysis, monitoring and  rs:
of the hazardous wastes and hazardous waste constituents that are present  at

FINDINGS  OF  FACT, DETERMINATION AND ORDER PAGE 5 of 3

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or that ;nay have been released frsra the  facility, and  Is herebv  ordered to
implement such proposal, once approved by  c?A.  Such written  proposal  shall
                                                             • *           •
contain, but is not limited to,  the following:
    1.   A plan and timetable for the determination of the  horizontal  and
vertical permeabilities of the uppermost aquifer  and the nature  of the
aquitards, or barriers, including a determination of the direction and
velocity of grcundwater flow in  .the uppermost water-bearing zones in the
area likely to be affected by migration  of hazardous wastes from the
Facility.  The plan shall consider means to determine  areas of  discharge and
recharge of groundwater in the areas Tilcely to  be affectad  by migration of
hazardous wastes from the facility.
    2.   -A plan for determining  whether  hazardous wastes or hazardous waste
constituents have leaked or are  leaking  from the  landfill.  This shall
include a plan and timetable for the installation of a groundwater
monitoring program, including proposals  as to locations, depth,  and
construction thereof, designed to monitor  groundwater  elevation  and water
quality.
    3.   A sampling and analysis plan for  monitoring groundwatsr at or near
the landfill which describes analysis parameters, frequency of sampling, and
procedures and quality assurance measures  for sampling and  analyzing for
hazardous waste and hazardous waste constituents.  The plan shall provide
that  groundwater be sampled and analyzed at least quarterly for one year.
The plan shall also provide for analysis of all priority  pollutants
contained in Appendix VIII of 40 C?R Part 261 for at least one of the
      quarterly sampling periods.
 26
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 ">         4.    A plan  and  timetable  ta  collect and analyze  soil samples of
                *
 2     appropriate size,  depth,  and location  ta. determine the nature  and extant of. •
 3     contamination  of the-surface and  of "the" soil column above the  groundwatar
 *     table  at the facility.
 5       .  S.    A proposal, including timeframes,  for  determining  the extent of any
 6     hazard presented by  hazardous  waste  or hazardous waste constituents that may
 7     have been released to  drainage ditches,  surface waters,  or  sediments
 8     therein.  This proposal  shall  specifically  include sampling of water,
 9     sediment, and  soils, both on and  off-site.,  sufficient to document  the extent
10     of contamination by  hazardous  waste  or hazardous waste constituents that may
11     have, resulted  from past events such  as rainfall and resulting  run-off.
12         6.   A'provision for site  access-for employees, agents, and contractor?
13     of Complainant at all  reasonable  times for  purposes of inspecting  and
14     verifying, compliance with the  provisions of this Order in accordance with
15    and pursuant ta  the  authority  of  §3007 of the Act, 42 U.S.C.  §6927.
16        7.   A description of the  means  of implementation of the items  set forth
17    above, a proposal  for reporting ta  EPA on the progress of these items, and
18    for reporting the results of  the  sampling,  analysis and  monitoring  program.
19                               OPPORTUNITY TO  CONFER
20    Under the provisions of the Act,  Respondent say confer with EPA at any time
21    prior ta subnrittal of the proposal.   The proposal  submitted by Respondent
22    shall  be subject to  review, modification and approval_by EPA.   After
23    submittal of the proposal, Respondent shall be  afforded  an  opportunity to
24    confer with EPA on a date specified by EPA  ta discuss the terms of the
25    proposal.  Following this conference and after  review, modification  (if
      any), and approval of the proposal  by EPA,  Respondent shall forthwith
 27
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 1    conduct,  carry out and implement the sampling,  analysis,  monitoring  and
 2    reporting, program according to Its approved'terns and schedules.
 3    The  written proposal-ordered herein must be submitted by Respondent to the
 4    Contact Person,                   .    •, at the address listed below.jyithin
 5    thirty (30) days of Respondent's receipt of this Order.
 6         '                              LIABILITY
 7     If. EPA determines that Respondent is not able to conduct the activities
          >
 8     required by this Order in a satisfactory manner, is not able to conduct the
                                                                           •
 9     activities contained in-the approved proposal, or if actions carried out are
10     deemed unsatisfactory, then EPA may conduct such actions deemed reasonable
11     by EPA to ascertain the nature and extent of the hazard at the  facility.
12     Respondent may then be ordered to reimburse EPA for the costs of such"
13     activity pursuant to §3013(d) of the Act.  In the event Respondent  fails  or
1-*     refuses to comply with the tarns and provisions of this Order,  EPA  may
15    coraiencs a civil action ta require compliance with such order and to assess
16    a civil penalty of not to exceed $S-,QCQ for each day during which such
17    failure or refusal occurs.
18                                •  •  •
19    WITNESS MY HAND as Regional Administrator  pursuant to  the authority of  the
                                   *
20    Administrator of the  United States  Environmental Protection Agency, on
 21    this 	day of _(_	, 1984.
22
 23
                                          By:     ..	  .	
 24                                           -           '
                                              Regional  Administrator
 25
 26    Contact  Person:
 27                                                         ..
 23      .'
      FINDINGS OF  FACT,  DETERMINATION AND ORDER PAGt 8 of  3

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*»SID1X 3
•



f.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
,
IN THE MATTER OF: )
Environmental Protection Agency, }
Complainant, )
v' )
Respondent. )
Proceedings under §§ 3008 and 3013)
of the Resource Conservation and )
Recovery Act, 42 U.S.C. §§ 6928 )
and 6934. )

• I
RCRA Docket XS3-11-OS-300P 3013 J
FINDINGS OF FACT, AGREED
COMPLIANCE ORDER, AND AGREED
ORDER REQUIRING SUBMISSION
AND IMPLEMENTATION OF
PROPOSAL FOR SAMPLING,
ANALYSIS, MONITORING AND
REPORTING
•
PRELIMINARY STATEMENT
1. This is -an administrative action
instituted pursuant to Sections
3008(a) and 3013 of the Resource Conservation and Recovery Act [42 U.S.C
Sections 6923(a) and 6934], hereinafter
"RCRA". The Complainant is Region of
Protection Agency (EPA).


referred' to as "the Act" or
the United States Environmental



FINDINGS OF FACT, DETERMINATION AND AGREED ORDER PAGE 1 of 26
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    2.  Complainant has reason to believe that
           , ('Respondent") has violated Section 3005 of the Act [42  ' •
              •
U.S.C §6925] as set forth below.  Additionally, the Regional
Administrator of EPA Region   ,, by and through authority duly delegated
from the Administrator of'EPA, having been presented with information
concerning the presence of. hazardous wastes that are being stared,  •
treated, and disposed at the facility described below, with Information
concerning potential releases of hazardous wastes from this facility, and
with Information that these circumstances may present a substantial
hazard to human health or the environment, hereby Issues the following
Findings of Fact, Determination, Compliance Order, and Order Requiring
            *
Submission, pursuant to Sections 3008 and 3013 of the Act [42 U.S.C.
Sections 6928 and 6934] that are sat forth below.
    3.  Respondent consents to comply with the penalty assessment,
Compliance Order and Order Requiring Submission as described below.

                             FINDINGS OF  FACT
    1.                      "     ..           submitted a Notification of
Hazardous Waste Activity  (EPA Form 8700-12) for its facility near
                 which was received by Complainant on
This notification satisfied Section 3Q10(a) of the Act.  This
 *
notification indicated that                was a generator, transporter,
and treatar, storer, and/or disposer of hazardous wasta.  The facility is
located at i'
                    and. was then and is now known as   .     (hereafter
"the facility").
>rm 030-133
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FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER'
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                2.        -          submitted a Part A application (EPA Forms 3510-1
            and 3510-3) dated                 ,, whidt was received by Complainant on
            November 18, 1980, as required by 40 CFR Part 270.10(e)(l).  This
            application stated that             ., was a storer and disposer of
                                             *
            hazardous waste at the facility.                   >..
                3.               • had operated a facility at        since .
               ., and including a period of time prior to and after November 19,
            1980.  At the facility, .              accepted waste including hazardous
            waste for storage and/or disposal as indicated on its  notification and
            Part A permit application.  Therefore, the             .  facility known
            as        qualified for Interim Status pursuant to Section 3005(e) of the^
            Act.
                4.   40 CFR Part 255 establishes and sets forth standards, known as
            the Interim Status Standards (ISS),  which were prcmulgated pursuant to
            Section 3C04 of the Act, and which are applicable to all  hazardous waste
            treatment, storage, and disposal facilities that qualify for Interim
            Status.  These standards apply to such facilities until final
            administrative disposition has been  made of permit applications submitted
            by owners and operators of such facilities.  No such disposition has been
            made with respect to the        facility.  Thus, the standards of 40 CFR
            Parts 270, 124, _and-255 apply to the        facility.
                5.   In correspondence frcm                            , dated
                        , Complainant was notified that Respondent intended to
            acquire all of the capital stock of                and to liquidate the
            assets of             . into ~               '                            ,
            .  •
            "          The letter further stated that      would continue the
            FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                                       PAGE 3 of 25

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   030-183
2-3-76 DOJ
            operations of              at the facility.  The notification was
            submitted pursuant to 40 C?R Part 122.23 (now 270.72).
                6.   In correspondence dated             .., Respondent notified
            Complainant that the operating name. of Respondent's facility would be
                                                       .'..'• the date that
            formal closing of the ownership transaction would occur.  .After that
            date, Respondent has owned and operated the facility, known as
                7.   Respondent on                                , submitted a
                                         «             .
            revised Part A permit application and requested approval to add treatment
            as a hazardous waste management process to be conducted at the facility.
            Complainant approved the request on .
                8.   Respondent thus owns and operates a hazardous waste management  *
            facility (100          } for the treatment, storage, and/or disposal of
            hazardous wastes, which is subject to the Interim Status provisions of
            Section 3005(e) of the Act and regulations promulgated under the Act.
                9.   Complainant issued a letter to Respondent on
            formally requesting the submission of the Part & permit application.  The
            letter required Respondent to submit the Part 8 application to the
            Complainant within six (6) months of receipt of the request.
                10.  Respondent requested, in correspondence dated                , a
            four (4) month extension for submittal of the Part 3 application.
            Complainant approved the request and extended the submittal date to

                n..  Complainant has conducted and/or participated in several
            inspections of Respondent's .      facility to determine compliance with
            the Interim Status Standards.  An inspection was conducted by Complainant
            on                .  Several violations of the ISS were noted during the
            inspection.  Respondent was advised of these findings, which were

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7JJ.78 OOJ
attached to correspondence dated                  .  Corrective action
was required as a part of the Part 3 permit application but, 1n any
event, within six (5) months of Respondent's receipt of the letter.
    12.  Complainant again Inspected the facility on                .,
1983, to determine compliance with the ISS.  Copies-.of several documents
required to be developed and maintained by the facility were collected
and were reviewed in detail after on-site Inspection.  Several violations
of Interim Status Standards were noted and made known to Respondent 1n a
                             t
Notice of Violation and Warning (NOYW) dated '            "      Among
those noted were.violations of requirements for the Wasta Analysis Plan
(40 CFR §265.13), General Inspections (40 CFR §255.15), Personnel
Training (40 CFR §255.15), Contingency Plan (40 CFR §265.52), Groundwater
Monitoring .(40 CFR Part 255 Subpart F), and Closure and Post-Closure (40
CFR Part 255 Subpart G).  In the NOVW, Respondent was required to submit'
a plan and schedule for compliance.
    13.  Respondent submitted a plan and schedule dated             .,
1983 for compliance with the items noted in the                  , NOVW,
and requested an extension of the 30 day sufcmittal requirement for 40 CFR
265 Subpart F violations, until .          .      .  Complainant granted
the extension, 1n correspondence datad                 , to allow
completion of ge_etachnical work then underway at the site.  Respondent
subsequently submitted the plan and schedule, in correspondence datad
               ., in which Respondent proposed installation of a
groundwater monitoring program.  Complainant accepted Respondent's plan
and schedule, with some revisions, in correspondence datad       ••   ,
1983, and advisad Respondent that full compliance with ISS groundwatar
monitoring requirements was required to be achieved by           .,
            FINDINGS OF FACT,  DETERMINATION AND AGREED  ORDER
                                                              PAGE 5 of 25

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    .  A ground water waiver demonstration was developed by Respondent.
Based on an Inspection in            *nd subsequent review of the waiver
demonstration Complainant advised Respondent 1n the NOVW dated
        that the waiver demonstration was Inadequate.  Respondent
therefore has not Implemented a groundwater monitoring program (or
developed a complete waiver demonstration) capable of determining the
facility's impact on the quality of groundwater In the uppermost aquifer
underlying the facility as required by 40 CFR Part 255 Subpart F".
    14.  A storm and flash flood occurred at Respondent's '_   :  facility
on the night and/or morning of .'           .     .„, which may have
exceeded a 25-year storm event.  Complainant conducted an Inspection of
the facility on                 during which erosion and other signs of
runoff from the site were noted at two arsas of the facility.  The
erosion noted was due to runoff from the storm.  Inspectors noted liquid
In an active hazardous waste disposal trench (Trench   ).  This liquid
had flowed into the disposal trench 'from surrounding areas during the
                   storm.  After the storm, facility personnel
constructed a berm at the end of Trench    to deflect future storm
run-off into that trench.  Failure to prevent flow of surface water into
an active hazardous waste, disposal trench constitutes a violation of 40
CFR §265.302(a). .   .
    15~  Complainant was advised on or about                 " by the
       County Prosecutor that violations of the Interim Status Standards
had allegedly occurred at Respondent's        facility during the
approximate period of           through  '       ...  Respondent was
alleged to have disposed of large quantities of drums of improperly
solidified and unsolidified liquid waste in Respondent's disposal trench
FINDINGS OF FACT,.DETERMINATION AND AGREED ORDER
PAGE 6 of 26

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used for disposal of hazardous wasta (Trench   ].
    16.  On OP about                 , Respondent voluntarily began
excavating and exhuming drums of waste previously disposed 1n Trench
Complainant has continually observed excavation activities since
               ...  Excavation of drums continues 'to. data by Respondent.
As drums have been recovered from the disposal trench they have been
individually opened and examined by representatives of Respondent and
Complainant.                                      '              •
                             •                                         •
  .  17.  During the period of                    , Respondent removed
1412 drums from the disposal trench (Trench   ).  Of these, 528 drums
were determined to contain liquid in whole or in part as follows:
    a.   145 drums full or containing greater than approximately 75S
liquid
    b.
    c.
    d.
    e.
          33 drums containing between approximately 50i and 75i liquid
          44 drums containing between approximately 25S and SOS liquid
         225 drums containing between approximately 52 and 25J liquid
          80 drums containing less than approximately 55 liquid
    18.  At the request of Complainant, Respondent provided control
records that document the dates that some of the above-mentioned 528
drums containing liquids were placed in the disposal trench.  These
records disclosed that drums found to contain liquids were placed  in
Trench  .  on at least the following occasions:
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER .
                                                              PAGE 7 of 25
irm 090-t 81
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^ O.TC  *srt
1 ' Dats • Control No.
2 5/27/83 " 2252
3 2358
4 2231
5 5/20/33 ' 2323
6 6/10 and 3/9/33 2330
7 8/3/83 2343
8 2361
9 2392
10 6/3/83 2370
.11 2374
12 6/10/83 2381
13 5/21/83 ' 2386
14 23S4
IS 6/18/83 2443
16 Such placement of liquids 1n Trench
No. of Drums
21
7
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9
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4
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5
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13
was in violation of 40 CFR
17 §265.314. Some of the control documents provided to Complainant fail to
!8 clearly account for all containers In each
19 manifested to the facility.
20 19. Qn 'and
21 Respondent's . • facility. The purpose
shipment of hazardous waste

', Complainant again inspected
of the inspection, in part.
22 was to determine compliance with RC3A Interim Status Standards. More
23 specifically, the inspection was to examine facility operations and
24 physical conditions at the facility. The
25 following:
26
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28 FINDINGS OF FACT, DETERMINATION AND AGREED
3-183
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inspection disclosed the

.

ORDER ' PAGE 8 of 25


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         a.  Approximately 8,500 drums were in storage at the facility.
         The number of drums In storage 1s Increasing.
         b.  Several drums containing hazardous waste in storage on-site
         Were corroded or badly deteriorated; specifically, drums of
         hazardous waste designated as 0007 were bulging and had not been
        'managed in accordance with 40 CFR §255.171.  .
         c.  Several drums containing hazardous waste in storage on-site
         were leaking either from the top seals or openings or through
         the drum; specifically, drums of hazardous waste designated by
         waste codes on the labels as containing F003, FOOS, 0001, 0006,
         and phosphoric acid, were leaking, and had not been managed in
         accordance with 40 CFR §265.171.
         d.  Several drums containing hazardous waste were stored with
         open tops; specifically, drums designated by wasta codes on the
         labels as containing 0002/0007 and F003/FQOS had open tops, in
         violation of 40 CFR §255.173(a).
         e.  Drums containing hazardous waste were stored in a manner
         which may cause them to leak; specifically, drums were stored
         directly on the ground surface and in areas of poor drainage
         which may cause or accelerate drum deterioration or rusting, in
         violation.of 40 CFS §265.172(b).
         f.  Run-off from active portions of the facility was not
         collected in a collection system.  Prevailing grade determines
         the course of run-off and natural ponding.  Ponds formed by
                                                                     ••
         run-off or run-on were allowed to evaporate or percolate into
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
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         the son, 1n violation of 40 CFR §255.302(6).
         g.  The diversion structure (a berm)  which had been constructed
         to cause run-on into Trench 11 was still in place, in violation
         of 40 CFR §2S5.302(a).
         h.  Inspections by Respondent of containers in storage had not
         been adequate to detect deterioration and releases of hazardous
         waste constituents to the environment, in violation of 40 CFR
         §2S5.15(a).  Remedial action had not  been initiated to correct
         such drum management problems in violation of 40 CFR §255.171.
         1.  Respondent's facility was not then currently maintained and
         operated to minimize the possibility  of unplanned sudden or
         non-sudden releases of hazardous waste or hazardous waste
         constituents to air, soil, or surface water; specifically, any
         spill during use of the stabilization pad could result in
         hazardous waste flow to surrounding soil, and failure of any
         container of hazardous waste in storage would result in
         discharge to the soil or surface.water, in violation of 40 CFR
         §265.31.  Additionally, Respondent's  facility is not equipped
         with a facility or system to prevent  the release of hazardous
         waste or hazardous waste constituents from truclcs or other
         vehicles 1-eaving the site.
    20.  At Respondent's        facility there are '
                underground structures '                        .
                                                These structures were
filled with liquid and solid hazardous waste and hazardous waste
constituents prior to November 19, 1980.  The  integrity of the
FINDINGS OF FACT,.DETERMINATION AND AGREED ORDER
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underground structures 1s u."known.  Respondent, in correspondence dated
                ,, advised Complainant that grcundwater had been
encountered beneath the site near a,depth of 200 feet.   ..

    21.  A-well reaching a deep artasian aquifer was constructed as part
of the original facility.  An integral part of that well is Its steel
casing.  The water produced by this well contains natural chemical
compounds which may be destructive  to metals such as the steel well
                             •  *
casing.  The well and construction materials are approximately 25 years
old.  The condition and integrity of the casing and well head are
unknown.  The well head is situated in an underground structure (the
power house) which is connected by a series of tunnels, structures, and
access doors to .                 '            •• underground structures
containing hazardous wasta.  The potential of a well casing failure
exists.  Such a failure could result in the release of a large volume of
water to the soil and to hazardous waste disposal  units, which might
result 1n the release of hazardous waste by leachate production and
migration off-site by means of surface run-off or groundwater flow.  The
well presents a potential risk of unplanned sudden and non-sudden release
of hazardous waste or hazardous wasta constituents.
                ™                         i
                              CIVIL PENALTY
    In view of the violations noted in the Findings  of Fact above,
Complainant hereby assesses a civil penalty of ONE HUNDRED FIFTY THOUSAND
DOLLARS [5150,000].
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 11 of 26
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2-3-75 DO;
                              DETERMINATION
              *                ™^™^^H^^HB


    Based upon the above information, it is hereby determined  pursuant to



Section 3013 of the Act that:



    1.   The        facility as described hereinabove, owned and operated



by the Respondent, is a facility at which hazardous wastes  are  present



and at which hazardous wastes have been treated, stored, and disposed.



    2.   The methods and practices employed at the facility for treating,



storing, and disposing of hazardous wastes are such that the presence of
                             »
                                                            •

the hazardous wastes at the facility may present a substantial hazard to



human health or the environment.



    3.   The releases of hazardous wastes and/or hazardous waste



constituents at the facility may have migrated to surface or



groundwatar.  Several off-site wells on adjacent or nearby property exist



which could be or could become contaminated as a result of such



releases.  Therefore, the release of hazardous wastes at the facility may



present a substantial hazard to human health or the environment.







                             COMPLIANCE  ORDER



    Based upon the foregoing and pursuant to Section 3008 of the Act, it



is hereby ordered that the Respondent take the following corrective



actions within the time periods specified:







    1.   Respondent shall upon its receipt of this Order initiate



telephone contact with all known generators and transporters of hazardous



waste' who ship or transport hazardous waste to Respondent's  '  •



facility and advise each:
            FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                             PAGE  12 of 25

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                      a.  to immediately cease shipping any containerized  hazardous
                          •
                      waste or bulk hazardous waste which contains free  liquids  to the
                             facility until further notice; and
                      b.  to allow shipments of -hazardous waste already  in transit to
                      the        facility to continue to the facility; and
                      c.  that any. shipments of containerized hazardous  waste  or bulk
                      hazardous waste which contain frae liquids will not  be accepted
                      at the facility if shipped after the telephone notice. •
                                          •
                 The telephone notifications shall be completed as soon  as possible
             but in any event all such generators and transporters must  be so  notified
             within three (3) working days of Respondent's receipt of this Order.
                                                                                      ^
                 2.   Respondent shall follow the above telephone notification with
             written confirmation to each such generator and transporter -and shall
             provide' a written summary to Cc~.pl ai/iant within five '(5) working  days of
             Respondent's receipt of this Order, which" includes:
                      a.  a copy of each written notification (a single  copy of  the
                      notification will suffice if the text of all such  notifications
                      is identical).
                      b.  a list of the companies to which the notification is sent,
                      including company name, company EPA ID number, mailing addrsss
                      of the company, company contact, and company telephone number.
                      c.  a' record of the datss the telephone contacts were made.
                 3.  Respondent shall, upon its receipt of this Order, immediately
             cease and thereafter desist from accepting at the facility  any
             containerized hazardous waste or bulk hazardous waste which contains free
             liquid and which was shipped from any generator after the aforementioned
             telephone notification to that generator.  In no event shall  Respondent
             FINDINGS OF FACT, DETERMINATION AND AGSEE-D ORDER
                                                                    PAGE 13 of 25

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accept at tha-fteility any containerized hazardous wasta or bulk
hazardous wasta which contains free liquids shipped Tatar than three (3)
working days after Respondent's receipt of this Order; with respect to
hazardous waste containing free liquid that is unknowingly accepted at
the facility, such waste shall not remain on the facility for a period
longer than 24 hours.  This prohibition shall  remain in effect until
Respondent has complied with Paragraph 4 below and further, until
                         *
Complainant by its Contact designated hereinbelow has notified the
                             •            .
Respondent, orally or in writing, that this prohibition has been removed.
    4.   Respondent shall immediately upon its receipt of this Order
implement procedures which assure that no container containing fres
liquids is placed in a landfill.  These and/or alternative procedures
shall.be documented in writing and submitted to Complainant for review
and approval.  Until Complainant has advised the.Respondent, orally or in
writing, that the procedures are approved, Respondent shall open and
inspect all containers of hazardous waste prior to placement in 'a
•landfill and shall verify that no free liquids exist 1n any such
container.  Following Complainant's approval,  orally or in writing,
Respondent shall immediately implement the- approved procedures.
    5.  Respondent shall remove from Trench    all liquids disposed
therein in vloUtion of 40 C5R §255.314.  In order to accomplish this,
Respondent sha^l continue to excavate, exhume, and examine, for liquids,
drums and/or containers disposed in Trench    at the        facility.
This activity shall continue until Complainant notifies Respondent in
writing that such activity may cease.  Respondent shall remove for
solidification drums containing free liquid in accordance with EPA
guidance and Complainant's on-site representative when such is present.
FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                                         PAGE 14 of  26

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    5.   Respondent  shall within  fifteen  (15) working days of its receipt
              •
of  this Order create  and maintain a  current written  record of the total
Inventory of containers of  hazardous waste in storage on-site.  This
inventory'shall  include all  containers which are  or  have  been exhumed
from  the landfill and which  contained free liquids when exhumed.
Respondent shall not  allow  the  storage inventory  of  containers  to exceed
the design capacity of the  facility which is currently defined  by the
Part  A application on file with Complainant.
                                                                    \
    7.   Respondent shall develop, Install, and put  into  operation
equipment and/or procedures  to  remove hazardous waste or  hazardous  waste
constituents from exterior  surfaces of vehicles which leave the site.
                                                                         ^
Respondent shall. Within fifteen  (15) working days of its receipt of this
Order, submit to Complainant for  approval a written  plan  and proposal  for
this  purpose, including a proposed schedule for installation and
implementation.  This plan  and  proposal must assure  that  no'vehicle
leaving the facility  is visibly contaminated with hazardous waste and
must  assure that any  dirt, soil,  or other material which  has become
adhered to the exterior of  the  vehicle, is removed prior  to.leaving  the
site.  The plan and proposal shall provide that all  such materials
removed, including any washing  solutions or wastewater, shall be treated
as  hazardous waste unless it can  be  demonstrated  otherwise.  Upon
approval of the  plan  by Complainant, Respondent shall immediately
•implement the plan.
FINDINGS OF FACT, DETERMINATION ANG AGREED ORDER
PAGE 15 of 26

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     8.    Respondent  shall,  within  fifteen  (15)  working  days  of  Us
 receipt  of  this  Order,  develop  a written plan and  schedule to divert
 run-on away frcm active portions of  the facility and  to collect and
 manage,  a's  hazardous  waste,  run-off  from active portions  of  the facility
 in  accordance  with 40 CFR §255.302.   The plan and  schedule shall  be
 submitted to Complainant for review  and approval.  The  plan  and schedule
 as  approved by Complainant  shall be  implemented by Respondent Immediately
•upon receipt of  written approval by  Complainant.
                              •             .
     9.    To the  extent  Respondent  has not  already  done  so, Respondent
 shall, by  ..              ., attempt to enter into arrangements or
 agreements  with  local  authorities  such as  police and  firs deparbnents,
 emergency response teams, contractors and  equipment suppliers,  and local
 hospitals,  in  compliance with 40 CFR §255.37(a).   Whers such arrangements
 or  agreements  have not  been reached  by    '        -    ., Respondent
 shall  document the refusal  of such State,  County,  or  other local
 authorities to enter  into such  arrangements, in compliance with 40 CPU
 §265.37(b).
     10.   To the  extent  Respondent  has not  already  done  so, Respondent
 shall, within  fifteen (15)  working days of  its  receipt  of this  Order,
 maintain a  written operating record  at the  .       facility,  including
 records  of  the dates  of disposal and location and  quantities of hazardous
 waste, in compliance  with 40 C?R §265.73(b).
     11.   Respondent  shall,  within  fifteen  (15)  working  days  of  its
 receipt  of  this  Order,  cease and thereafter  desist from the  storage of
 drums- of hazardous waste in a manner which may  causa  them to deteriorate
 and/or leak,  including  the  closing of all  drums in storage and  removal  of
 drums  frcm  storage on the ground surface and/or 1n areas  of  poor
 drainage, in  compliance with 40 CFR  §255.173.

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    12.  Respondent shall upon Us receipt of this Order implement
procedures to inspect daily all containers of hazardous wasta on-site.
Respondent shall further, within fifteen (15) working days of its receipt
of this Order, transfer any hazardous waste contained in corroded,
deteriorated, leaking, or bulging drums, or drums not in-good condition,
Into sound drums in good condition or shall otherwise comply with 40 CF3
§255.171.  Thereafter, Respondent shall comply with 40 CFR §255.171.
    13.  To the extent Respondent has not already done so, Respondent
                             *
shall, within thirty (30) days of its receipt of this Order, equip its
       facility with a continuously operable and operating internal
communications or alarm system in compliance with 40 CFR §255.32(a)  and
(b).
    14.  Respondent shall, within thirty (30). working days of its receipt
of this Order, prepare and subint to Complainant a written plan and
schedule to maintain and operate Respondent's *••.:-   facility so as  to
minimize the possibility of unplanned sudden or non-sudden releases  of
hazardous waste to soil or surface, water.  The plan shall  provide for at
least the following specific measures:
         a.   such measures as are necessary to eliminate  the threat of
         failure of the well casing in 'the on-site artesian well. The
         plan shall contain provisions to permanently plug the well.  The
         plan,' as approved by Complainant, shall be implemented
         immediately upon approval.
         b.   such measures as are necessary to minimize,  contain, or
         prevent the release of hazardous waste to the soil or surface
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER.
PAGE 17 of 25

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         water, upon the failure of any container or tank.
         C.   such measures as are necessary to minimize, contain, or
         prevent:
              (1)  any release due to spillage during off-loading of
              hazardous, waste into the stabilization pond, and
              (2)  any release due to failure of the bera surrounding the
              stabilization pond during use and/or treatment of hazardous
              waste for stabilization or solidification.
                             •             .
    15.  Respondent shall Implement and comply with the groundwatar
monitoring proposal and schedule submitted to Complainant 1n
correspondence dated                    Respondent shall also, within
seven (7) working days of its receipt of this Order, provide a written
response to Complainant's letter of .            '     which provided
consents on- the Respondent's proposal.  The written response shall
document the actions Respondent has taken or intends to take with respect
to the fourteen (14) comments in Complainant's letter, except for item
twelve (12), which 1s covered under the Section 3013 Order, infra.
Additionally, Respondent shall include in the Part 3 application for the
       facility (due  -  ..             ) a plan and proposal, including
timeframes, for installation and implementation of a groundwater
monitoring system ar.d program that fully complies with 40 C?R Parts 254
and 265, Subparts F.
    16.  Respondent shall immediately upon its receipt of this Order
provide access to  •'••    to employees, agents, and contractors of
Compl-ainant at all reasonable times, for the purposes of inspecting and
verifying the status of Respondent's compliance with this Order,.in
irm 030-183
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FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                                         PAGE 18 of 26

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accordance with and pursuant to the authority of §2007 of the Act, 42


U.S.C. §6927.




 ORDER REQUIRING SUBMISSION AND IMPLEMENTATION OF PROPOSAL FOR SAMPLING,


                   ANALYSIS, MONITORING  AND  REPORTTNG


    Pursuant to Section 3013 of the Act [42 U.S.C. §5934], and in order


to ascertain the nature and extent of the hazard at the      facility as


described hereinabove, Respondent is hereby ordered to submit a written
                             •                 •

proposal to' EPA for the sampling, analysis, monitoring and reporting of


the hazardous wastes and hazardous waste constituents that ars present at


or that may have been released from the facility, and is hereby ordered
            »                                                             -•
to implement, such proposal, once approved by EPA.  Such written proposal


shall contain, but is not limited to, the following:


    1.  A determination of whether hazardous wasta cr hazardous waste


constituents have leaked or are leaking from the


underground structures.  This shall  Include a plan and timetable for the


installation of a groundwater monitoring program, including


recommendations as to locations, depth, and construction thereof,


designed to monitor groundwatsr elevation and water quality.


    2.  A sampling and analysis plan for groundwatar at or near the


          underground structures containing wasta which describes


frequency of sampling, and procedures and quality assurance measures for


sampling and analyzing for hazardous wasta and hazardous wasta


constituents.  The plan shall  provide that g'roundwatar be sampled and


analyzed at least quarterly for one year.  The plan shall also provica
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAG£ 19"of 25
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for analysis-of all priority pollutants contained 1n Appendix VIII of 40
             «
CFR'Part 261 for at least two of the sampling periods.
    3.  A proposal, Including timeframes, for determining the chemical
composition of the contents of any-container which has been exhumed frcm
••••<•   and which contained free liquid at the time of exhumation.  Such
determination shall include, as a minimum, sampling and analysis of a
representative number of such containers.  Such proposal shall be
sufficient to determine whether Respondent'.s records and record-keeping
                             t             .
procedures accurately reflect drum contents and the chemical composition
of liquid hazardous wastes disposed by Respondent.  Nothing in this
paragraph shall limit the exhumation, processing, and disposal activities
required by this Order prior to approval and implementation of this
proposal.
    4.  A proposal, including timeframes, for detamining the extant of
any hazard presented by hazardous waste or hazardous waste constituents
that have leaked or otherwise been released to the environment from
tanks, containers, vehicles, or other containment devices, or that have
otherwise orginatad from active treatment, storage, or disposal units at
the site.  This proposal shall specifically include sampling of soils,
both on and off-site (assuming access can be obtained), sufficient to
document the extent of contamination by hazardous wasta or hazardous
waste constituents that may have resulted from past events, including:
         a.  rainfall and resulting run-on and run-off;
         b.  liquid wasta solidification activities;
         c.  wasta transfer between process units at the facility;
FINDINGS OF FACT, DETERMINATION ANO AGREED ORDER
PAGE 20 of 25
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         d.  vehicle entry, vehicle unloading, and vehicle exit  from  the
         facility;
         e.  other on-sita waste management practices  including,
         Inter alia, container storage, tanlc storage,  treatment,  and
         disposal of hazardous waste*.             \.
    5.  A provision for site access for employees, agents, and
contractors of Complainant at aU reasonable times for purposes of
inspecting and verifying compliance with the approved proposal in
                             «
accordance with and pursuant to the authority of §3007 of the Act, 42
U.S.C. §6927.
    6.  A description of the means of implementation of the items set
                                                                        *
forth above, a proposal for reporting to EPA on the progress of  these
items, and for reporting the results of the sampling, analysis and
monitoring program.

                          OPPORTUNITY TO CCNFiR
    Under the provisions of the Act, Respondent may confer with EPA at
any time prior to submittal of the §3013 proposal.  The proposal
submitted by Respondent shall be subject to review, modification and
approval by EPA.  After submittal of the proposal, Respondent shall be
afforded an opportunity to confer with EPA on a data specified by EPA to
discuss the terms of the proposal.  Following this conference and after
review, modification (if any), and approval of the proposal by E?A,
Respondent shal'l forthwith conduct, carry out and implement the sampling,
analysis, monitoring and reporting program according to its approved
tarms and schedules.
             FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                             PAGE 21 of 25

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                                 CONTACT

    The written proposal ordered herein must be submitted by Respondent

to                        at the address listed above, within thirty  (30)

days of Respondent's receipt of this Order.  Sufcnrittals required by the

Section 30C8 Compliance Order, supra, as well as any questions, shall

likewise be addressed to



                                LIABILITY
                             •   ^™^^H•» ^

    If EPA determines that Respondent 1s not able to conduct the

activities required by this §3013 Order in a satisfactory manner, 1s not

able to conduct the activities contained in the approved proposal, or 1f
                                                                         *•

actions carried out are deemed unsatisfactory, then EPA may conduct such

actions deemed reasonable by EPA to ascertain the nature and extent of

the hazard at the facility.  Respondent may then be ordered to reimburse

EPA for the costs of such activity pursuant to §3013(d) of the Act.   In

the event Respondent fails to comply with the terms and provisions of

this §3013 order, EPA may commence a civil action to require compliance

with such order and to assess a civil penalty of not to exceed 53COO  for

each day during which such failure or refusal occurs.



                                 CONSENT

    1.  In connection with this matter, the Respondent consents to the

followi ng:

         a.  To pay the assessed civil penalty of 5150,000, on the terms

         described below.
3rm C9O-I81
2-8-78 DOT
FINDINGS OF FACT,. DETERMINATION AND AGREED ORDER
                                                                          PAGE  22  of  25

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         b.  To comply  1n  full with  the  Compliance Order  issued  pursuant
         to Section 3008 of the Act.
         c.  To comply  in  full with  the  Order Requiring Submission  and
         Implementation of Proposal  for  Sampling, Analysis, Monitoring-
         and Reporting.                            >..
    2.  .The consent of  both Respondent and Complainant to settle  this
matter on the terms and conditions sat forth in the penalty assessment
and order provisions of this document (hereafter collectively referred to
                             •
as the "Order") is based upon  the following:

         a.   Respondent neither admits  nor denies any factual or legal
         allegations contained in this Order.  Nevertheless, In full and
         complete settlement of this matter, Respondent agrees to be
         bound by the terms of this Order, consents to the assessment of
         the civil penalty set forth herein, and explicitly waives  its
         right to request a hearing regarding any provision of this Order.
         b.  The provisions of this Order imposing duties (other than the
         payment of penalties) upon Respondent shall apply to and be
         binding upon not only Respondent, but also its officers, agents,
         servants and employees, and upon all those in active concert or
FINDINGS OF FACT, DETERMINATION AND AGREES ORDER
PAGE 23 of 25
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participation with them who receive actual  notice of this Order
by personal service or otherwise.
c.  It 1s the Intention of this Order to bring Respondent and
all operations at the facility in compliance with the provisions
of RC3A and applicable RCRA regulations.  It is not
Complainant's intention by this Order to impose standards or
conditions more stringent than those specified in the
aforementioned provisions except to the extent that it may be
necessary to remedy existing alleged violations at the facility.
d.  This Order shall in no way relieve the  Respondent of its
obligation to comply with any other local,  State or Federal law^
in any way related to the substance of this Order.
e.  This Order is not and shall not be interpreted to be a
permit for treatment, storage or disposal  of hazardous waste
under Section 3005 of RCRA (or under the terms of a State
program operating in lieu of the Federal program under Section
3006 of RCRA), nor shall this Order in any way affect the
Respondent's obligation, if any, to secure  such a permit, nor
shall this Order be interpreted in any way to affect or waive
any of the conditions or requirements that may be validly
imposed as conditions for the issuance of such permit nor of
Respondent's right to appeal any conditions of such permit.
f.  This Order is being entered into between Complainant and
Respondent in full settlement of all civil  penalties for the
                                                          *
alleged violations identified herein.  Nothing in this Order
             FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
                                                    PAGE 24 of 25

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         Shall restrict the right of Complainant to initiate further
         enforcement action for penalties or otherwise only 1n the event
         additional facts are uncovered which ar« unknown to Complainant
         at the time this Order is entered and which justify such action.
         g.  Notwithstanding compliance with the terms of this-Order,
         Respondent is not released from liability, If any, for abatement
         of any imminent and substantial endangerment to the public
         health, welfare or the environment posed by this facility.
                             •
         h.  Within 60 days of the date hereof, Respondent shall pay by
         cashier's or certified check, a civil penalty in the amount of
         $150,000.00 in full and complete settlement of all violations
         alleged herein.  Such check shall be payable to the Treasurer,
         United States of America, and shall be remitted to
                          , Regional Administrator.
         i.  Complainant shall expeditiously review all plans and
         proposals submitted pursuant hereto and shall not unreasonably
         withhold its approval.
         j.  The terms of the Order may be modified by written mutual
         agreement of the parties.
         k.  This Order shall terminate two years from the date it is
         entered^ or. on the data of issuance of the Part 3 permit,
         whichever is earlier.
FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGc 25 of 25

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    3.  3y the*following signatures, the Complainant and Respondent

hereby consent to the entry of the Order on the tarns and conditions

herein stated:
DATED-
                                       Respondent
                                       Secretary
DATED:
                                                     ,  Regional Counsel
                                       EPA, Region
                                       Attorney for Complainant
                                       Assistant Regio'naT Counsel
                                       EPA, Region
                                       Attorney for Complainant
                        ENTRY OF  FINAL CONSENT OR PER
It is so Ordered as set forth above.  This ORDER, including each and every
portion hereof', shall become effective immediately.
                                            Regional Administrator
                                            EPA, Region 10
DATED'this .

FINDINGS OF FACT, DETERMINATION AND AGREED ORDER
PAGE 25 of 25

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           MODIFICATION OF AGREED ORDER ...
           ENTERED INTO f..           "     . BETWEEN ENVIRONMENTAL
           PROTECTION AGENCY REGION    AND
         Upon the mutual agreement of the parties  to  the  above-referenced
Agreed Order as evidenced by the signatures below, and  pursuant  to Paragraph
2.J. of the "CONSENT" section thereof (p. 25 of  26),. the  Agreed  Order is
hereby modified as follows:
         1.   Page 13 of the Agrsed Order shall  be amended  as  follows:
              a.   On line 11 thereof, omit "three (3)",  and insert  "ten (10)"
              in place thereof;
              fa.   On line 14 thereof, omit "five  (5)", and  insert "twelve
              (12)" in place thereof.          '..
         2.   Page 14 of the Agreed Order sha'll  be amended  as  follows:   On
line 2 thereof, emit "three (3)", and insert "tan  (10)" in  place thereof.
         3.   Noncomplianca with Paragraph 4 on  Page  V^of  the Agreed Order
prior to                 % shall, in the sole discretion of  the Complainant by
its Contact designated on Page 22 of the Agrssd  Order,  and  without further
notice* or opportunity for a hearing, effect a further unilateral modification
of any of the three provisions modified above, but such modification shall
maintain the existing date relationship of Paragraphs 1,  2  and 3 on  Pages
12-14'of the Agreed Ordetvcf .
   DATE
                             for tnviror.ir.entai  Protection  Agency Region
                     ENTRY OF ORDER AMENDING  AGREED ORDER
IT IS SO ORDERED.
         """DATE
            MODIFICATION OF AGREED  ORDER  - -page  1  of .1
                                                         Regional  Administrator

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•76 DOJ
                                                          APPENDIX C
                BEFORE  THE  UNITED  STATES
            ENVIRONMENTAL  PROTECTION AGENCY
IN THE MATTER OF:
                                        RCRA Docket
                                                  ORDER
                 Respondents.

Proceedings under  §3013  of  the
Resource Conservation  and
Recovery Act,  42 U.S.C.  6934
                 'ORDER FOR REIMBURSEMENT OF

           MONITORING,  TESTING,  AND  ANALYSIS COSTS

     This Order  is  issued  pursuant  to  Section 3013(d) of the Resource

Conservation and Recovery  Act  [42 'J.S.C.6934 (d) ,  hereinafter

referred to as "the Act"],  by  the undersigned,  the Assistant

Administrator for the  Office of  Solid  Waste and Emergency Response,

a duly authorized designee  of  the Administrator of the United States

Environmental Protection Agency  (EPA), to

                                                       Rescor.de nts.
       ORDER -  Page  1 of 7

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                    DETERMINATIONS AS'D FINDINGS OF  -ACT


      The undersigned makes the following determinations  and  findings


 of  fact:



      1.    The                  "   Facility (hereinafter  referred  to


 as,  "the Facility"]  is located at                         , near the


 junction of             Road                 Street  in          .  The


 Facility is owned and operated by


      2.                         is managing owner, operator and


 Chairman of the Board of Directors of                    Company, Inc.


      3.                         was,  until          , the President of


                                •


      4.                         and                      each have


 personally  participated  in each and  every operation conducted at


 the  Facility.   Together' they exercise, or have exercised control


 over  all activities  occurring at  the Facility.




 hereinafter referred  to  as "Respondents".


      5.   -The  EPA Administrator determined, on  or before August   ,


 198  , that  the  presence  of hazardous waste at the Western Processing


 facility  and  the  release of  hazardous waste  from  the facility may be


 presenting  a  substantial hazard to human health or the environment

 and that  determination  required monitoring, sampling, analysis and


 reporting.  The basis  for  that  determination  is documented in an


Order issued  to Respondents  signed by        Administrator


         ~ on August    ,  198,:,  pursuant  to  the authority of




ORDER -  Page  2  of  7

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Section  3013  of  the  Act.
     6.    The S3013  Order was  served  on  the  Respondents on
August 17,  1982.
     7.    The §3013  Order required  the Respondents to submit to EPA a
proposal  for  monitoring,  testing, analysis,  and  reporting of hazardous
waste and  hazardous  waste constituents that  are  present at or that
have been  released from  the  facility, and  to implement such proposal,
once approved by EPA.  The Respondents were  required  to submit the
proposal  to EPA within thirty  (30)  days  of receipt of the Order.
     8.    Notwithstanding such Order, Respondents  failed  to submit any
proposal  and  on September   ,  198 , notified EPA that the Respondents
were unable to develop the proposal and  to implement  monitoring,  test-
ing, analysis, and reporting.
     9.    Based upon the  Respondents' failure  to submit the required
proposal  and  the notification  cy the  Respondents of  their, inability to
develop  the proposal  and  implement  the required  investigation,  the
Assistant Administrator  for  the Office of Solid  Waste' and Emergency
Response determined  that  no  owner or  operator  was  able  to conduct the
required monitoring,  testing,  analysis,  and  reporting  .
    10.  Accordingly, and  pursuant  to the authority contained  in
§3013(d)  of the Act,  the  Assistant Administrator for  the  Office of
Solid Waste and Emergency Response, acting through the  Regional
Administrator of Region 10 EPA, undertook to conduct  monitoring,
sampling, and analysis of  the  site  to ascertain  the nature and
extent of the hazard  associated with  the site.   Such  activity  was
initiated on  September    , 1982.

ORDER - Page  3 of 7

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      11.    Monitoring, testing,  and analysis conducted through

 November    ,  198 ,  have resulted in expenditures of funds in the

 sum of  $134,450.  This sum has been expended for conducting monitoring

 testing,  and  analysis on or in the vicinity of the Western Processing

 site deemed necessary and reasonable to ascertain the extent of the

 hazard  associated with the site.

      12.   The 5184,450 has been  expended as follows:

 Prime Contractor Personnel Costs.

      Field Invesigation Team     1,953 hrs  9 $35.00

                                     395 hrs     35.00
      Technical Assistance Team

          Prime Contractor Total

Sub-Contractor Costs

      South Seattle Asphalt                     S1467.98

      RJ3 Wholesale          .                    2729.27

      TUB Wholesale                   .           513.82

      Sanikan                                    209.34

      National Barricade                         463.77

      Rental Mart-submersible pump               332.23

      Analytical Services Center (Buffalo)       2400.00

      Burns Security                             1542.30

      Brooks Truck Line-forklift, flatbed        339.99

      Story and Dodge (well driller)            20444.50

      Crosby and Overton- barrel storage         360.00

      City of Kent - Water                        45.00

           Sub-Contractor Total
$68,530".00

 13,825.00

 $82,355.00
                                                            $30,358.25
ORDER - Page 4 of 7

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•76 DOJ
Equipment and Supplies

     Sears- fencing  gate                          S 324.39

     Sears- come-along hand  wrench                   85.18

     Burdic Feed and Hardware -'wire stretcher        56.90

     N.w. Stationers - stencil and paint- for drums    68.05

     Cascade Bag - sample  bags         .              79.32

     Seattle Barrel Company                         1427.10

     Lone Star Industries                .            223.66

     Glacier Sand and Gravel                         275.84

     J.C. Penny's - lantern                           45.78

     MSA - supplies, cartridges, respirator          896.53
     supplies

     check valve, hydrant wrench                      35.52

     pipe without gasket            .                 152.61

     drive caps     '                    •              46.86

     disposable gloves                               114.60

     diesel, gas, ice, small  equipment              156.59

     personal mileage, supplies, maintenance         172.35

     film development and purchase                    54.00

     Seattle Skin Diving - refill air  bottles         38.07

     Andrews Machinery - pressure release  valve       17.34

     Sears paint for drums                            28.46       . •

     Label Master Labels                              27.96

             Equipment and Supplies Total                   S4323.ll
       ORDER - Page 5 of 7

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i-76 .DOJ
 Car Rental

      3  vehicles §  So.10 per day  (  157 days)

      1  vehicle   3   5.50 per day  (  5 days)

      Mileage

      Gasoline

            Car  Rental  Total
                S 957.70

                   32.50

                  391 .00

                  645.00
                        S 2525.20
Analytical  Support  (Laboratory)  (includes 10%  Mgmt. overhead)
      Soil  samples  -  inorganics

                   -  organics

      Water samples - inorganics

                   -  organics

      Special  services

                 high hazard samples  1  9  S398

                 Filter  samples     35  9     8

                 %  moisture         124  9     5

                   - Analytical Support  total

      Sample  Transportation and  Packaging

              Grand Total  to November 29,  1982
122 samples @5 93   511,346.00

124 samples 9S 305  ' 37,820.00

 25 samples 9   93    2,325.00

 25 samples 9  305    7,625.00
                   398.00

                   230 .00

                   620.00

                        S 60,414.00

                 3,963.58
                        S 184,450.24
The above sum covers only activities  which  were  carried  out under

contract to EPA.  Activities  carried  out  by EPA  personnel are not

included in the  above  sura.

                            ORDER


      Based upon  the deterainations and findings  of  fact above,  the

Respondents are  hereby  ordered to pay a sum of ONE HUNDRED EIGHTY FOUR

THOUSAND FOUR HUNDRED FIFTY dollars (5134,450) to reimburse the  United


ORDER - Page 6 Of 7

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•76 DOJ
States  for  incurred costs  of  the monitoring,  testing  and analysis

conducted through November   ,  198  .   This  sun shall  be paid within

15 days of  the date of  this Order  by  a certified  check payable to

"Treasurer, United States  of  America."  This  payment  must be remitted
                                                           *
to the  contact person a"t the  address  below.

      Failure to comply with  the terms of  this Order  raay subject

Respondents to a civil action by EPA  for assessment of a penalty of

an amount not to exceed 5  5,000.00  for each day of  such failure to

ccmply.

             The contact person shall  be:
Witness my hand as Assistant Administrator  for  the  Office of Solid

Waste and Emergency Response'pursuant to  the Authority of the

Administrator of the United States Environmental  Protection Agecy.
Dated this
day of ._
,  198.'
ORDER - page 1 of 1

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C.  20460
                          SEP 21 1984
MEMORANDUM
SUBJECT:
FROM:
TO:
Issuance of Final Revised Guidance on the Use and
Issuance of Administrative Orders Under Section 7003
of the Resource Conservation and Recovery Act (RCRA)

Courtney M. Pricef^
Assistant Administrator *for Enforcement
  and Compliance Monitoring
                  ^^^^^^  *
Lee M. Thomas    C^^—
Assistant Administrator for Solid Waste
  and Emergency Response

See Attached List
     Attached is the Final Revised Guidance on the Use and
Issuance of Administrative Orders Under Section 7003 of RCRA.

     The responses to the1 drafts of this guidance were very
positive.  A considerable effort has been made to incorporate
the comments received where appropriate.  We greatly appreciate
your involvement in ther development of this important policy.

     If you have any questions,  please contact Susan Conti,  of
OECM-Waste, at FTS-382-3103.

Attachment

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Regional Counsels,  Regions  1-X
Regional Administrators,  Regions  1-X
Hazardous Waste Coordinators, Regions I-X
RCRA Branch Chiefs,  Regions I-X1

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    FINAL REVISED GUIDANCE MEMORANDUM ON THE



    USE AND ISSUANCE OF ADMINISTRATIVE ORDERS



UNDER SECTION 7003 OF THE RESOURCE CONSERVATION




            AND RECOVERY ACT (RCRA)
               September 26,  1984

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                       TABLE OF CONTENTS


I.    INTRODUCTION  	  1

II.   SCOPE OF RCRA §7003  	  2

      A. Evidence 	  2
      B. What Constitutes Handling,  Storage,
           Treatment or Disposal 	  3
      C. Necessity of Existence of Imminent and
           Substantial Endangerment 	  3
      D. Persons to Whom an Order May be Issued	  5
     . E. Notice to Affected States	6

III.  SELECTING ENFORCEMENT OPTION 	  6

      A. Administrative Order or Civil Referral 	  7

      B. Use of RCRA or CERCLA 	  7

      C. Deciding to Use a §7003 Order 	  9

         1'. Respondent's Financial Status	  9
         2. Number of Respondents Subject to  the Order..  10

             i) Coordination of Response Action	  10
            ii) Supervision	  11
         3. Specificity of the Necessary Response
              Action	  11

IV. .  ELEMENTS OF AN ORDER 	  12

V.    CONFERENCE PROCEDURES 	  14

VI.   MODIFICATION,  REVOCATION,  OR STAY OF THE ORDER....  15

VII.  NEGOTIATION OF ADMINISTRATIVE ORDERS 	  15
VIII. DELEGATIONS OF AUTHORITY 	  16

APPENDIX.  STATE NOTIFICATION LETTER	  17

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 I.  INTRODUCTION

      RCRA's  administrative  enforcement  authority  is an
 important component  of  the  Agency's overall hazardous waste
 enforcement  program.  The effectiveness of EPA's  enforcement
 program wiTl be  demonstrated  as  respondents implement site
 remedies in  compliance  with administrative orders,  the Agency
 pursues enforcement  actions vigorously  against  respondents
 who fail to  comply with such  orders, and  the Agency defends
 aggressively judicial challenges  to orders.

      Section 7003  of the Resource Conservation  and Recovery
 Act (RCRA) provides  EPA with  a broad and  powerful enforcement
 tool that may be used to abate imminent hazards that are caused
 by the  handling, storage, treatment, transportation or disposal
.of solid waste or  hazardous waste.  Under §7003,  the Adminis-
 trator  may seek  injunctive  relief in the  appropriate United
 States  District  Court or, after  notice  to the affected State,
 take appropriate action "including, but not limited to, issuing
 such orders  as may be necessary  to protect public health or  the
 environment."

      The §7003 administrative order authority provides strong
 incentives for respondents  to expeditiously undertake response
 actions deemed necessary by EPA  to ensure protection to public
 health  or the environment.  Therefore,  the Regions are urged to
 consider the use of  unilateral RCRA §7003 orders  in appropriate
 cases wherever it  is necessary to compel  response action.  It
 is essential that  the RCRA  enforcement  program  combines both
 administrative and judi/cial enforcement authorities to ensure
 protection of health and the  environment  frop the improper
 handling of  hazardous waste.

      The following guidance has  been prepared to  assist the
 Regional offices in  developing and issuing administrative
 orders  pursuant  to §7003.   It supersedes  the earlier Agency
 guidance issued  on September  11,  1981,  by Douglas MacMillan,
 Acting  Director, Office of  Waste Programs Enforcement, entitled
 "Issuance of Administrative Orders Under  §7003  of the Resource
 Conservation and Recovery Act."

      Since §7003 is  similar in scope to §106 of the
 Comprehensive Environmental Response, Compensation, and
 Liability Act, the reader should  consult  the guidance
 issued  on September  8,  1983,  entitled "Guidance Memorandum on
 Use or  Issuance  of Administrative Orders  Under  §106 (a) of

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                             - 2 -
 CERCLA."  A fuller treatment of the following areas, common to
 both 7003 and 106, is found in the (1983) 106 Guidance:
 Necessity for Determination Based on Evidence; Necessity for
 Actual or Threatened Release; Necessity that Release or Threat
 of Release be from a facility (applicable in the case of joint
 7003 & 106 orders); and Necessity for Existence of Imminent
 and Substantial Endangerraent.  Where joint orders under §§7003
 and 106 are issued, the Regions should adhere to the require-
 ments set out in both guidance memoranda.  The reader should
 also consult the CERCLA §106 guidance, "Issuance of Administra-
 tive Orders for Immediate Removal Actions" (Lee Thomas, OSWER,
 February 21, 1984).

     It should be noted that the reauthorization of RCRA by
 Congress may affect some aspects of §7003, regarding the
 participation of the public in the settlement of administrative
 orders and liability for past activities.  If RCRA is amenaed,
 supplemental guidance will be provided as appropriate.

 II. SCOPE OF RCRA §7003 *J

     In order to issue a §7003 order, the Administrator must
 possess evidence "that the handling,  storage, treatment, trans-
 portation or disposal of any solid waste or hazardous waste
may present an-imminent and substantial endangerment to health
 or the environment" (42 U.S.C. §6973).  Additionally, §7003
 requires that the Administrator provide notice to the affected
 State prior to issuance of the order.  Each of these require-
ments is discussed in further detail below.

     A. Evidence

     Because the recipient of a §7003 order may seek
 administrative or judicial review of the order, the Region
must have all the evidence necessary to demonstrate that the
*J     Note; the terras "hazardous waste" and "solid waste"
       in RCRA §7003 refer to the statutory definitions,
       §§1004(5) and 1004(27), of RCRA and not to the regulatory
provisions promulgated pursuant to §3001 and codified at 40 CFR
Part 261.  These regulatory provisions are meant for application
only in the Subtitle C regulatory program.  As long as a waste
meets the §1004 definition of solid or hazardous waste, it need
not be listed in Part 261 or satisfy one of the characteristics
specified in Part 261.

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statutory criteria have been satisfied at the time the order
is issued.  The evidence must establish that the respondent
has handled, treated, stored, transported or disposed of a
solid or hazardous waste, and that such activity has resulted
in a condition that may present an imminent and substantial
endangermert to health or the environment.  Necessary evidence
may be documentary, testimonial, or physical and may be
obtained from a variety of sources including inspections,
investigations, or requests for production of documents or
other data pursuant to RCRA §§3007, 3013 or CERCLA §104.  The
evidence must be sufficiently probative and reliable to
enable a reasonable person to conclude that issuance of an
order is appropriate.  For example, an unsubstantiated citizen's
complaint would normally not be sufficient to justify issuance
of an order.  If that complaint were supported by corroborating
evidence, however, such as laboratory analyses, the complaint
and corroboration could normally be considered a sufficient
basis for issuance of the order.

     B.  What Constitutes Handling, Storage, Treatment,
Transportation or Disposal.

     It is undisputed that §7003 may be utilized to enjoin
present conduct.  Thus, persons who are presently handling,
storing, treating, transporting or disposing of solid or
hazardous wastes are potential recipients of a §7003 order.
Whether §7003 may be used to abate present imminent hazards
caused by past disposal practices is an issue that has been
litigated repeatedly,  the Agency has consistently maintained
that §7003 applies to such past disposal.  Although there has
been some disagreement by courts considering this question,
the prevailing view as expressed in U.S. v. Waste Industries,
et al., No. 83-1320 (4th Cir., May 8, 1984) clearly supports
the Agency's position.  Thus, Regional Offices should consider
the issuance of §7003 orders at presently inactive facilities,
provided such issuance is consistent with this guidance.

     C.  Necessity for Existence of Imminent and Substantial
         Endangerment.

     Evidence possessed to support the issuance of a RCRA
§7003 order must show that the "handling, storage, treatment,
transportation or disposal of any solid or hazardous waste may
present an imminent and substantial endangerment to health or
the environment."  The words "may present" indicate that
Congress established a standard of proof that does not require
a certainty.  The evidence need not demonstrate that an immi-

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nent  and  substantial  endangennent to public health or the'
environment  definitely exists.   Instead, an order may be issued
"if  there-is  sound reason to believe that such an endangennent
may exist.

      Evidence of actual harm  is  not required.  As the Court
stated  in Ethyl Corp. v. EPA, construing an endangerment
provision in the Clean Air Act:

          The meaning of "endanger" is not disputed.
          Case law and dictionary definition agree that
          endanger means something less than actual harm.
          When one is endangered, harm is threatened; no
          actual injury need  ever occur.  541 F.2d 1 at
          13, footnotes omitted, original emphasis, D.C.
          Cir., cert, denied  426 U.S. 941 (1976).

      It should also be noted  that while the risk of harm must
be  imminent  in order for the  Agency to act under §7003, the
harm  itself  need not be.  (See the legislative history to the
"imminent and substantial endangerment" provision of §1431 of
the Safe Drinking Water Act,  H.  Rpt. 93-1185 at 3536.)  For
example, EPA could act if there  exists a likelihood that
contaminants might be introduced into a water supply which
could cause  damage after a period of latency.•  One must judge
the risk or  likelihood of the harm by examining the factual
circumstances, including, but not limited to:  1) nature and
amount of the hazardous substance; 2) the potential for
exposure of  humans or the environment to the substance; and
3)  the known, or suspectefd effect of the substance on humans
or  that part of the environment  subject to exposure to the
substance.

     Legal analyses of the concept of imminent  and substantial
endangerment can also be found in Reserve Mining Co. v. EPA,
546 F.2d 492 (8th Cir. 1975); U.S. v. Vertac Chemical Co..  et
al., 489 F.Supp. 870 (E.D. Ark.  1980);  U.S. v.  Solvents
Recovery Service,  496 F.Supp. 1127 (D.  Conn. 1980); UTS, v.
Midwest Solvent~Recovery, 484 F.Supp. 138 (N.D. Ind. 1980);
U.S. v. Diamond Shamrock Corp.,  17 E.R. 1329, (N.D. Ohio
T98T); U.S.  v. Price, 688 F.2d 204 (3rd Cir. 1982); and, U.S.
v. Reilly Tar and Chemical Corp., 546 F.Supp. 1100 (D. Minn.
19 sir:

     The nature of the endangerment and the basis for the
finding of an imminent and substantial endangerment must be set
forth in the order.   If sampling and analysis data are being
relied upon, a summary of such data should ordinarily be set

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forth in the order.  At any rate, all evidence supporting the
finding'of any imminent and substantial endangerment in the
order must be compiled into a single, concise document consti-
tuting the endangerment assessment.  [An Endangerment Assessment
Guidance is presently being prepared by the Office of Solid
Waste and Emergency Response.]

     D.  Persons to Whom an Order May be Issued.

     Section 7003 provides that an order may be issued to "any
person" who contributed to conduct or lack of conduct that may
present an imminent hazard.  The terra encompasses, if applicable,
the present owners and operators of a site, including an inactive
site.  Similarly, the term includes persons whose ongoing
conduct may result in the risk of an imminent hazard.  Whether
previous owners of a site or past non-negligent off-site
generators are also covered by §7003 is an issue that has
received much judicial attention.

     Although the case law is unsettled, two courts have upheld
EPA's position that previous owners of a site may be held
liable under §7003.  U.S. v. Price. 688 F.2d 204; U.S. v.
Reilly Tar and Chemical Co., 546 F. Supp. 1100.  Thus, if
otherwise appropriate, Regions should consider issuing §7003
orders to previous owners of a site, even an inactive one, in
cases where the previous owner's conduct may have caused or
contributed to conditions at the site which may present an
imminent hazard and substantial endangerment.

     To date, the courts have been unwilling to include past,
non-negligent, off-site generators within the scope of §7003.
See,  U.S. v. Wade. 546 F. Supp. 785 (E.D. Pa., 1982); U.S. v.
NEPACCO. 579 F. Supp. 823 (W.D. Mo., 1984) [U.S. filed cross-
appeal June 29, 1984; decision pending].  It is recommended,
therefore, that the Regional Offices utilize CERCLA §106 to
order such generators to perform necessary cleanup work.  While
an early decision was unfavorable, the majority and all recent
decisions have held that §106 does apply: U.S. v. Wade, 546 F.
Supp. 785 [held §106 is not applicable to past, non-negligent
generators]; U.S. v. Price. 577 F. Supp. 1103 (D. N.J., 1983)
[held §106 does apply to past, non-negligent generators]; U.S.
v. NEPACCO. 579 F. Supp. 823 [held §106 does apply to past,
non-negligent generators]; U.S. v. Conservation Chemical Company,
No. 82-0983-CV-W-5, Order (W.D. Mo., Feb. 3, 1984) [held §106
does apply to past, non-negligent generators]; and U.S. v.
A&F Materials, et al. . No. 83-3123 (S.D. 111., Jan.  Z0~, 1984)
[held §106 does apply to past, non-negligent generators].  The
Agency's position is that §106 does apply to past, non-negligent,
off-site generators.

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                             - 6 -


     E.  Notice to Affected States

     Finally, before an Order may be issued, the "affected
state" must be given notice of the Agency's intention to issue
the Order.

     The Agency is not held to a statutory period of time for
notice.  Normally, written notification to the state should
precede federal action by at least one week.  Circumstances
may arise, however, where a more rapid response at a site is
necessary.  In such cases, issuance of an order may follow an
abbreviated notice period or even a telephone call made by EPA
to the director of the agency responsible for environmental
protection in the affected state.  Written confirmation must
follo.w such telephone notice.  In some cases,  the draft order
may be subject to a State's Freedom of Information Act prior to
issuance of the order by EPA.  If this situation arises, the
Agency may delay notice to the affected state(s) until (no
later than) one week before issuance of the final order.
11 is unlikely that a state FOIA request would result in early
disclosure of the draft order during that short period of
time.

     As indicated above,  the notification should be directed to
the director of the state agency having jurisdiction over
hazardous waste matters.   A suggested form for a notification
letter is attached to this memorandum as the Appendix.  This
form also provides the format for oral notice.
                       t
     An "affected state"  is -a state in which the conduct or
condition which may present an imminent and substantial
endangerment is occurring or is located,  and in which the
response activity required by the proposed order will be taken.
In some cases,  this may involve more than one state,  such as
where a facility is located near the border of a state and the
hazardous wastes have migrated from the facility into another
state(s).  In those cases, all of the states in which the
hazardous wastes are found and in which response activity may
be performed pursuant to  the order should be notified.  (Note:
Consult the following guidance for more information on the
State/Federal relationship: "Implementing the State/Federal
Relationship in Enforcement:   State/Federal Enforcement
Agreements",  OECM, June 6, 1984.)

III.   SELECTING ENFORCEMENT OPTION

     Although §7003 administrative orders are a potent
enforcement tool,  there will be instances when it will be more
appropriate for the Agency to use other enforcement options,
including a RCRA §7003 judicial action, a CERCLA §106 adminis-

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                              - 7 -
 trative  or  judicial  action, or  a Superfund financed cleanup of
 a  hazardous waste  site. . The Regions should examine each of
'these  options  and  select the option which will result in the
 most efficient use of  limited enforcement resources and
 Superfund monies while  still quickly abating the threat.
 (See also,  the memorandum on "Issuance of Administrative Orders
 for  Immediate  Removal Action",  supra, for additional guidance
 on selecting enforcement options.; •

     A.  Administrative  Order or Civil Referral

     Initially,  the  Agency must determine whether it is more
 appropriate to use administrative or judicial enforcement
 action;  each has definite advantages and drawbacks.  An admin-
 istrative order has  the benefit of being'a relatively speedy
 method of enforcement.  The Agency can issue an order that
 establishes a  timetable for compliance, unilaterally or on
 consent, in a  short  period of time.  A judicial action,  on the
 other  hand,  is usually  a more time-consuming process.  The
 referral of a  case to  the Department of Justice and filing of
 a  complaint may delay  the initiation of remedial activities.
 Even though a  judicial  action can be time-consuming, any
 resulting judicial order or consent decree can be more quickly
 enforced in the event of noncompliance since the Court already
 has  jurisdiction of  the matte_r, and an additional referral
 to DOJ generally is  not needed.

     Because AO's  can be issued quickly,  the general rule is
 that an  administrative"order, whether issued unilaterally or
 on consent,  is appropriate absent some indication that the
 respondent  will not  comply with its terms.  Where noncompliance
 is anticipated, Regions should .prepare a civil referral.
 Should immediate remedial action be necessary,  EPA should
 consider requesting  a preliminary injunction or temporary
 restraining order.

       B. Use of RCRA or CERCLA

     Once a decision has been made to proceed administratively,
 the  Region  must then decide whether an order under RCRA §7003
 or CERCLA §106  is more  appropriate.  Upon examination, both
 statutory provisions appear quite similar.  When faced with
 the  need to abate  an imminent hazard, the Agency can often use
 a  joint  order  if the RCRA "hazardous waste" is also a CERCLA
 "hazardous  substance."  [Consult the CERCLA §106 (1983)  guidance
 for  a  discussion of  the issuance of joint orders,]

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                              -  8  -
      There  are  three  situations  where  a joint  order  is not
.available,  more  specifically,  where  a  RCRA  §7003 order can be
 used  but a  CERCLA §106  order  cannot.

      The first  situation  would result  when  the imminent hazard
 is  caused by a RCRA Irsolid  waste"  but  not a "hazardous waste."
 RCRA  §7003  orders can be  used  to  abate imminent hazards pre-
 sented  by "solid wastes"  (RCRA §1004(27)) as well  as  "hazardous
 wastes"  (RCRA §1004(5)).  By  contrast,  CERCLA  §106 orders are
 limited  to  abating imminent hazards  presented  by "hazardous
 substances"  (CERCLA §101(14),  CERCLA S101(14)(c) defines
 "hazardous  substances"  as including  "hazardous wastes" under
 RCRA  §3001,  but  not RCRA  "solid  wastes"  under  §1004(27).
 Therefore,  when  an imminent hazard is  caused by a  RCRA "solid
 waste",  which is not  a  RCRA "hazardous wastes"  (or CERCLA
 hazardous substance)  RCRA §7003  orders can  be  issued, whereas
 CERCLA  §106  orders cannot.

      The second  situation would  result when a  waste meets the
 definition  of "hazardous  wastes"  under §1004(5) of RCRA but does
 not qualify as a "hazardous waste" under 40 CFR Part  261.  The
 term  "hazardous  waste"  in §7003  refers to the  broad statutory
 definition  (§1004 (5))  of RCRA and not to the  more narrow
 regulatory  provisions promulgated  pursuant  to  §3001 and codi-
 fied  at  40  CFR Part 261.  These  regulatory  provisions are
 meant to be  applied only  in the  Subtitle C  regulatory program.
 Because  the  CERCLA definition  of "hazardous substances" (§101
 (14)) includes "hazardous wastes"  under RCRA'§3001 but not
 under RCRA  §1004(5),  a" CERCLA  §106 order could not be
 used  in  the  above situation.

      The third situation  would result  when  the waste  involved
 is  excluded  from regulation under  CERCLA because it is a petro-
 leum  product.   [See,  CERCLA §101(14) for the definition of
 "hazardous  substances"].  Gasoline is  not a listed "hazardous
 waste" or commercial  chemical  product  under RCRA regulations
 (40 CFR  261  Subpart D).   Residues  of a spill or a.  release of
 gasoline are not automatically listed  as hazardous.   Even so,
 gasoline leaking from underground  storage tanks can be control-
 led under RCRA as a "solid  waste".  As stated  earlier, §7003
 can be  used  to address  wastes  that satisfy  the  statutory defin-
 ition of "hazardous waste"  under RCRA  §1004(5) even if they
 are not  listed or do  not  exhibit  a RCRA hazardous  waste charac-
 teristic under 40 CFR Subpart  C.   Orders have  been issued
 under RCRA  §7003 to owners  of  underground storage  tanks that
 were  leaking gasoline or  other petroleum products.

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                             - 9 -
     C.  Deciding to Use a §7003 Order

     This section discusses factors to consider when deciding
whether or not to use a §7003 order.  These factors include:

     - financial status of the respondents
     .- number of potential respondents
     - specificity of the necessary response action

     As a general proposition, a §7003 order should be issued
only in those situations in which compliance with the terms of
the order is feasible, i.e.,  where the respondents are in a
position to perform the ordered response actions within speci-
fied time periods.  This does not mean that EPA must make a
pre-issuance determination that respondents will comply with
an order,  but rather that compliance is practicable.  If the
Agency anticipates non-compliance with an order it is
considering issuing, the use of the order mechanism may serve
only to delay initiation of an injunctive action under §7003
or, if appropriate,  a Fund-Financed response.   In addition,
it is an inefficient use of resources.

     1) Respondent's Financial Status

     Before an administrative order requiring  remedial work
is issued,  the Agency should assess, to the extent possible,
whether the responsible party has sufficient financial resources
to comply with the order.  This assessment is  only a factor to
be considered in the decision to issue an order when the neces-
sary information is available.  Financial information may be
available from several sources:

     0  Agency files may contain financial information
        collected as part of the identification of
        parties responsible for the hazards posed
        by sites on the National Priorities List.

     0  The Securities and Exchange Commission (SEC)
        requires publicly traded companies to  submit
        detailed financial statements.  This information
        is publicly available.  (Consult NEIC's manual
        entitled "Identifying Responsible Parties" for
        additional information on obtaining SEC
        files.)

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                             - 10 -
      0  Responsible parties may submit financial
        information to the Agency during discussions
        'or negotiations held prior to the issuance of
        an Order.

      0  The Agency collects financial data as part of
        the RCRA permitting process.

     In addition, NEIC can provide further financial information
on respondents who are publicly held companies or companies
previously the subject of EPA action(s).

     2) Number of Respondents Subject to  the Order

     The Agency's position that §7003 provides for joint and
several liability has been challenged by U.S. v. Stringfellow,
No. 83-2501 - MML (C.D. Cal.,  April 5,  198~4j7  That decision
held that neither RCRA §7003 nor CERCLA §106 provides for joint-
and several liability.  In the case of a  multiple party adminis-
trative order, the Stringfellow Court stated that "...such
would have to state with specificity the  steps to be taken and
the party to take them.  If steps were ordered taken jointly,
the Court would have to prescribe the participation of each
defendant".  (Slip. op. at 12.)

     At present,  the Agency has not changed its position on
§7003 and joint and several liability.   Even so,  the Stringfellow
decision may affect future §7003 orders  issued to multiple
respondents without an- allocation of individual responsibilities.

     Some factors LC consider before  issuing a RCRA §7003 order
to multiple parties are as follows:

          i)   Coordination of Response Action

          An order issued to  multiple respondents who are
jointly and severally liable  generally will not allocate
individual clean up responsibilities. *_]   Instead,  the order
will require the same response action, to  be conducted by each
responsible party.  Multiple  parties  must organize and coordi-
nate their response to ensure compliance  with the order's
requirements.   Thus,  compliance with orders may depend upon
group agreement on each member's share of the response cost.
In a large group of responsible parties,  it may be difficult
for the group to develop a consensus  on  individual liability
and perform response activities as quickly as necessary to
   */ However,  the Agency may issue an order to a respondent
     requiring a response to a discrete,  separable aspect of the
hazard at a site,  notwithstanding the existence of other
responsibile parties or other less divisible problem areas.

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                             - 11 -
abate imminent hazard conditions at a site.  Accordingly,
issuing Orders to all responsible parties may not be appro-
priate where  there are a  large number of parties who are .
unlikely  to agree on a concerted response.  Instead, the Agency
will pursue" judicial remedies or consider issuing Orders to a
selected  subset of responsible parties.

     Even  in  situations where Orders are issued to a large
number of  parties, Agency policy, which should be reflected in  .
the terms  of  the Order, is that each Respondent is individually
liable for compliance with the Order's requirements.

           ii) Supervision

           After an order  is issued,  the Agency conducts
compliance monitoring at  the site to ensure that responsible
parties comply with the terms of the order.  Although no
specific number of responsible parties can be considered ideal,
it is clear that the Agency's oversight responsibility is most
effective  when there are a limited number of responsible parties
or a single contractor (hired by the responsible parties) doing
the work at the site.

     3) Specificity of the Necessary Response Action

           In order to minimize the potential for confusion
between Respondents and the Agency concerning the required
response action,  orders should be used in situations where the
nature of  the required response action is relatively precise.
Orders are  particularly useful to require that respondents
cease any  ongoing activity that is causing the imminent hazard.
When remedial work is required, an order may best be used to
mandate discrete tasks such as the erecting of fences to secure
the site and  the removal of drummed wastes.  Orders can be
inappropriate in cases where the abatement will be very complex,
cost more  than several million dollars, or take more than a few
years to  complete.  These are offered as factors to consider
and not criteria to be rigidly followed.

     A RCRA. §7003^ order,  or succession of orders,  may be used
to require  respon'se action throughout the entire cleanup pro-
cess.  11  is entirely appropriate to use §7003 to order
immediate  sampling or testing programs as part of a broader
set of proposed response activities.  For example, where it
is important  to respond immediately to an imminent hazard,  a
§7003 order may be used to determine the full extent of site
contamination and to require immediate security and clean up
action in  response to hazards that have already been established,

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                             - 12 -
Monitoring,  sampling,  analysis and reporting can,  of course,
also be required through use of a RCRA §3013 order.   A §3013
order may be issued absent a finding of an imminent hazard
although it does require a finding that the presence of,  or
release from a site of,  hazardous waste "may present a substan-
tial hazard* to human health or the environment."   RCRA §3013(a)
(1)&(2).  [See,  Issuance of Administrative Orders  Under Section
3013 of RCRA,  issued September 1984.]

IV.  ELEMENTS OF AN ORDER

     All §7003 orders  should contain the following elements:

     0 a statement of  the statutory basis for the  order.

     0 a statement of  the agency's authority to  issue
       the order and the liability that may be incurred
       if the respondent fails to comply.

     0 a specific determination supported by findings
       or reference to a separate endangerment assessment
       that states that the Agency has determined  that an
       imminent and substantial endangerment may exist.
       Such an explicit finding is necessary even  if the
       Respondent is willing to consent to the issuance
       of the order.  Should EPA need to seek judicial
       enforcement of  the order,  even one issued on
       consent,  it should be able to demonstrate  that it
       acted within its  statutory authority in issuing the
       order.          '

     c the company is  a facility as defined under  CERCLA
       §101(9).   (Note:  required only when the A.O.  is also
       based on CERCLA §106).

     0 a finding that  the substances are solid or
       hazardous wastes.

     0 statements as to  the liability of the
       respondents,  i.e.,  that the responsible party  •
       is or has been  engaged  in the activities
       described in §7003.
     o
       a compliance schedule that clearly sets forth
       the tasks to be performed,  the time frames for
       performance,  and quality and performance stan-
       dards for tasks.  Such specificity enhances the

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                        - 13 -


  operator's ability to comply and the Agency's
  ability to enforce the order judicially should
  the respondent violate its terms.  A specific
  order provides the court with Agency articulated
  standards by which to judge the respondent's
  noncompliance.

0 EPA authority to be on site during work, obtain
  split samples and other information generated,
  and stop work if an emergency arises.

0 sampling and analytical procedures.

0 health and safety procedures.

0 notice to affected States.  A statement should
  be included, where possible, that notice to the
  affected state(s) has been given.

0 an opportunity to confer if the order is
  unilateral.  Agency policy is to offer
  recipients of §7003 orders an opportunity to
  confer with the Agency concerning the appro-
  priateness of its terms and its applicability
  to the recipient.  (Note; The administrative record
  containing EPA's evidence should be available for the
  recipient to examine.) The conference will help EPA
  ensure that it has based its order on complete
  and accurate information and ensure that both
  sides have a common understanding of the work
  to be performed.  Another benefit to such a
  conference is that it may reveal the unwilling-
  ness of the respondents to take necessary action.
  In this case, EPA can be better prepared to
  take necessary remedial action itself or seek
  judicial remedies. (See also, Conference Procedures,
  infra p. 14).

0 an effective date of the order.  Each order
  should specify the date on which it becomes
  effective.  Because a §7003 order by definition
  addresses an imminent hazard, it should ordinarily
  become effective within 10-14 days of receipt by
  the respondent.  In emergency situations the
  effective date may be shortened to as little as
  48 hours.  Any situation that requires an

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o
                        - 14 -
       affirmative response in less than 48 hours should
       be addressed under §104 of CERCLA as a fund-
       financed emergency removal.  [S££: Issuance of
       Administrative Orders for Immediate Removal Actions,
       supra, p. 2 (discussion of the timing of A.O.'s).]

       indemnification of EPA.  The order should exempt the
       Agency from liability for damages, even if the damages
       occurred pursuant to an EPA enforced order.

     0 a public comment period for consent orders.

     0 a civil penalties section for unilateral orders
       and a stipulated penalties section for consent
       orders.

     0 EPA authority to take additional enforcement
       action if the respondent does not comply with
       the terms of this order.

V. CONFERENCE PROCEDURES

     The conference will normally be held at the appropriate
EPA Regional office and will be presided over by the Regional
Administrator's designee.  However,  other arrangements may be
agreed to for the sake of convenience to the parties.  At any
time after the issuance of the order and particularly at the
conference, EPA should be prepared to provide the Respondent
with information sufficient to explain the basis for the
Order and to promote constructive discussions.  (NOTE: The
administrative record containing EPA's evidence must be avail-
able for the recipient to examine.)   The Respondent will have
the opportunity to ask questions and present its views through
legal counsel or technical advisors.  The schedule and agenda
for the conference will be left to the discretion of the EPA
official leading the conference, as  long as the Respondent
receives a reasonable opportunity to address relevant issues.

     Following the conference, a written summary of the
proceeding must be prepared and signed by the Agency official
who presided over the conference.  The written statement should
contain:

     0 A statement of the date(s) and attendees of any
       conference(s)  held; and

     0 A description of the major inquiries made and
       views offered by the Respondent contesting the
       terms of the order.

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                             - 1.5 -
     The presiding official must prepare a statement which
addresses the significant arguments raised by the respondent,
recommends how the order should be modified,  if at all,
and contains the reasons for the changes or revisions.

VI. MODIFICATIONS, REVOCATION,  OR STAY OF THE ORDER

     Based on a review of the file (on which the order  was
based) any probative information or argument made by the
respondent (following receipt of the order) or by recommen-
dation of the presiding official, the issuing official  may
modify or revoke the order.  Any modification to the order
must be communicated to the respondent as part of a copy o'f a
written statement containing the elements listed in Section V
above.  The original should be kept in the Agency files along
with the evidence supporting the order,  copies of written
documents offered in rebuttal by the respondent during  the
conference,  and a copy of the request for a conference.

     The issuing official may also stay the effective date of
the order if the conference process could not be completed
within-the specified time period.

VII. NEGOTIATION OF ADMINISTRATIVE ORDERS

     Although EPA recogriizes that recipients of unilateral
§7003 orders should be given an opportunity to confer,  the
Agency will not engage in lengthy negotiations with recipients
after an order is issued.  Limited negotiations,  before or
after issuance of an order, are useful in that they give EPA
an opportunity to assess the likelihood that the respondents
will perform the tasks set forth in the order.  If negotiations
look unpromising EPA must decide whether to issue an order
unilaterally, refer a §7003 civil action or initiate a  Fund-
Financed response (if this option exists).  EPA should  not
compromise its authority to secure necessary action simply to
obtain an order on consent.

     Should negotiations result in an agreement,  the resulting
order must contain all of the requirements set forth above;
these requirements are necessary to ensure that the order is
enforceable should the respondent decide not to comply.   The
same requirements apply even if the respondent has voluntarily
begun cleanup efforts.   In general, the negotiated order
should set out specifically what each respondent must do to
comply.

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                             - 16 -
VIII.  DELEGATIONS OF AUTHORITY

     At  the present time, the authority to issue RCRA §7003
administrative orders is delegated to the Assistant Adminis-
trator for Solid Waste and Emergency Response and the Regional
Administrators.  The Regional Administrator must consult with
the Assistant Administrator for Enforcement and Compliance
Monitoring or the designee and must obtain the advance
concurrence of the Assistant Administrator for Solid Waste
and Emergency Response or delegatee.   The Assistant Adminis-
trator for the Office of Solid Waste  and Emergency Response's
authority to issue §7003 orders and to give advance concurrence
has been redelegated to the Director,  Office of Waste .Programs
Enforcement.

     The RCRA Delegations of Authority are being revised and
should be issued in the near future.   The draft §7003 delegations
which are found in Chapter 8,  Section 22 of the draft delegations
manual are divided into three parts:   determination of imminent
and substantial endangerment;  abatement through a unilateral
order; and,  abatement through an order on consent.

     According to the draft delegations,  the Regional
Administrator (RA) must consult with  the Office of Regional
Counsel before issuance of either a RCRA §7003 unilateral
order or order on consent.  Regarding Headquarters,  the RA
must consult with the Office of Solid Waste and Emergency
Response (OSWER)  prior to issuing RCRA §7003 orders to deter-
mine an imminent and substantial endangerment and to abate
such an endangerment through a unilateral order.  The RA is
not required to consult with the Offices of Enforcement and
Compliance Monitoring (OECM) or the Office of General Counsel
(OGC) to issue the above.  For orders on consent under §7003,
the RA must obtain advance concurrence of OSWER or a waiver of
such concurrence  by advance memorandum,  before issuance of
such an order.   The RA does not have  to consult with or procure
concurrence  from  OECM or OGC prior to  issuance of §7003 Orders
on consent.   Consultation with OECM and OGC is recommended in
relatively new areas such as the use  of a RCRA §7003 order for
underground  gas tanks and where there are other novel legal
issues involved.

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                             - 17 -


                            Appendix

                   STATE NOTIHCATION LETTER

CERTIFIED MAIL
RETURN RECEIPT REQUESTED

Mr. R. Jones
State Agency
Division of Environmental Control

Dear Mr. Jones:

     Enclosed for your information is a copy of an order
[stamped "DRAFT" and "CONFIDENTIAL"] that the Agency intends
to issue on or after    [date]    ,  to the XYZ Company,  pur-
suant to Section 7003 of the Resource Conservation .and Recovery
Act (42 U.S.C.  §6973).  The order requires certain activities
to be taken at the company's site located at [location]  .
Please refer to the enclosed copy of the proposed order for
the specific actions required of the company and the time
within which such actions must be taken.  If you have any
comments or questions concerning the order,  please contact
[EPA official] at  [office] .

                          Sincerely yours,
                          Assistant Administrator for
                            Solid Waste and Emergency Response

                                     [or]

                          Regional Administrator

                               [or their designees]


Enclosure

cc:  Honorable J. Smith,  Governor

-------
           GUIDANCE MEMORANDUM




                    ON




USE AND ISSUANCE OF ADMINISTRATIVE ORDERS




                  UNDER




              SECTION 106(a)




                OF CERCLA

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                                   '
 I.      Ir.crocucticn   .......... ' ......... 1

 II.     Requirements  for  Issuance and Scope
        of  §1 06 (a) Administrative Orders .......... 4

        A.  Necessity  for "Determination"  ......... 5

        B.  Necessity  for Actual or Threatened
           Release of Hazardous Substance  ........ 6

        C.  Necessity  that Release or Threat
           of Release be From a Facility  ......... 7

        D.  Necessity  for Existence of Imminent
           and Substantial Endangerment   ......... 8

        E.  Notice to Affected States ........... .9

 III.    Persons to Whom an Order May Be  Issued ....... 10

 IV.     Criteria for Issuance of $106 Orders ........ 11

        A.  Responsible Parties' Financial Status ..... 12

       •B.  Number of Responsible Parties Subject to
           the Order  ................... 13

        C.  Specificity of the Necessary Response Action. . 14

        D.  Agency's Readiness to Litigate the Merits
           of the Order .......... . ........ 16

        E.  Competing Considerations ............ 16

V.      Orders Relating to Removals and Remedial Actions. . 17

        A.  Immediate Removals ............... 17

        B.  Planned Removals and Remedial Actions ..... 19

VI.     Procedures for Issuance of $106 Orders ....... 20

        A.  Planned Removals and Remedial Actions ..... 21

        B.  Immediate Removals ............... 21
        *

VII.    Opportunity to Confer ............... 22

        A.  Planned Removals and Remedial Actions ..... 22

        B.  Emergency Situations .............. 23

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       C.  Conference Procedures  	 23

       D.  .Vodif icatior> , Revocation, rr Stay of
           the Order	24

VIII.  Procedure if Order Not Obeyed	25

IX.    Note on Purpose and Use of This Memorandum	26
Appendix A:  Notification Letter
Appendix 3:  Sa.-ple §106 (a) Administrative Order

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON. DC Z04SO
MEMORANDUM
SUBJECT:  Guidance Memorandum on Use and Issuance of
          Administrative Orders-sCJnder 5106 (a) of CERCLA

FROM:     Lee M. Thomas
          Acting Assistant Administrator for Solid
            Waste and Emergency Response
                            	_^T--,  •-)
          Courtney M. Price   ^^"^ti_^  (/ ^
          Special Counsel for Enforcement:'

TO:       Regional Administrators, Regions I-X
          Regional Counsels, Regions I-X
          Air and Waste Management Division Directors
            Regions  I-X
          Regional Superfund Coordinators
          Director,  Office of Waste Programs Enforcement
          Director,  Office of Emergency and Remedial Response
          Associate  Enforcement Counsel, Waste Division
I.   Introduction

     The administrative order authority which the Environmental

Protection Agency (EPA) exercises under $106(a) of the Compre-

hensive Environmental Response, Compensation, and Liability Act

of 1980 (CERCLA) and Executive Order 12316 is one of the most

potent administrative remedies available to the Agency under any

existing environmental statute.

     Section 106(a) of CERCLA authorizes the issuance of "such
        V
orders as may be necessary to protect public health and welfare

and the environment," after notice to the affected state, upon

a determination that "there may be an imminent and substantial

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                                -2-

 endar.cs—er.t  to  the public  health or velfars  or  the  environrer.t
 t-scause  af  an actual  or  threatened  release  of a  hazardous
 substance from a  facility."  A  fine  not exceeding  S5,000 per
 day may  be  imposed for willful  violation, failure  or refusal
 to comply with a  $106(a) Order  (Order)/ and punitive damages
 of up  to three times  the cost of clean-up of  the site may be
 imposed  under S107(c)(3) for  failure, without sufficient cause,
 to properly provide removal or  remedial action pursuant to  such
 an Order.   In view of the magnitude  of these  penalties, the
 Agency expects that the regulated community will comply with
 administrative Orders.  At  the  same  time, the Agency's obliga-
 tion is  to  ensure that Orders are properly  issued.
     It  is  the current policy of EPA that,  whenever  possible,
 parties  who have  caused or  contributed to a release  or a threat
 of a release  of hazardous substances  at a site should
 rectify  the problems at the site.  This action is  necessary
 to ensure that the Agency efficiently manages  the  limited funds
available under CERCLA and  to ensure  that the maximum number of
sites are addressed.
     Accordingly, after the Agency discovers  a site  and in advance
of completing a Remedial Investigation and Feasibility Study (RI/FS),
 (and has conducted an endangennent assessment, or  their equiva-
 lent),  responsible parties  normally will be sent a notice letter
requesting them to clean up the site.  Following completion of the
 feasibility study, the Agency normally engages in  discussions with

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                                -3-
r.esoonsible parties  in  an  atter.pt to  obtain  promptly  the  acree-
ner.t cf  suc.u. parties  tc vcluntarilv undertake  the  recesssrv
raspcr.se actions.  If tns  iiscussicns  are  successful,  the  teras
of  the agreement will be embodied in  a judicial  consent decree
or  a $106 administrative consent Order.
     In  circumstances where  the Agency wishes  to compel a  responsible
party to undertake the  response actions, including  instances  where
no  settlement can be  reached, the Agency will  consider issuing  a
unilateral S106 Order in accordance with this  guidance.
     The administrative enforcement authority  is an important
component of the Agency's  enforcement  program  authorized under
CERCLA.  This guidance  is  being issued to  assist the  regional
offices  in developing and  maintaining  an effective CERCLA  admini-
strative enforcement program.  The effectiveness of the program
will be enhanced as site remedies are  implemented by Respondents
in  compliance with administrative orders,  and  as enforcement  of
Orders with '••hich Respondents are not  in compliance is success-
fully and expeditiously pursued by EPA.  The Agency will
aggressively defend judicial challenges to Orders and enforce
instances of non-compliance  to validate the CERCLA administrative
enforcement program.  Regional offices  should  issue Orders consistent
with the criteria and procedures contained in  'this guidance to  ensure
the legal sufficiency of the program.
     iTh« $106 administrative order authority provides strong  incen-
tives for Respondents to undertake expeditiously response actions
deemed necessary by EPA to ensure protection of public health or

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                                -4-

weifare or  the environment.   Therefore/  Regional  offices  are ufce'

to  consider -he  use  of  unilateral CI5.CLA acr.ir.istrative  orders
in  2**sr"  ~iss vhsrc  ccspsl-ing  sri^orcc«c.~;  authority  is  necss~

sary.  Criteria  are  .provided  herein  to  assist  regional offices

in  determining whether Orders are  appropriate  ir.  any  case.   It

is  essential that  a  balanced  CERCLA  enforcement program  is

implemented by EPA,  combining administrative and  judicial enforce

ment authorites, to  ensure protection of  health and the  environ-

ment from the hazards of  releases  or threats of releases of

hazardous substances.


II.  Requirements  for Issuance  and Scope  of Section 106  CSRCLA
     Orders

     A comparison  of 5106(a) and $7003  of the  Resource Conser-

vation and Recovery Act  (RCRA)  reveals  similarities in -the two

sections, and therefore many of the  criteria for  issuance of  a

$7003 Order also apply to 5106  Orders.^/  In many situations,

either Order would be appropriate.   Where the  hazardous  sub-

stances are also "hazardous waste" under RCRA, the Order should

cite the authority of both sections.


     Section 106 (a) of CERCLA provides  as follows:

     In addition to any other action taken by  a State
     or local government, when  the President determines
     that there may be an imminent and  substantial
     endangennent  to the public health  or welfare or
     the environment because of an actual or threatened
I/  Guidance on the use of RCRA $7003 administrative orders
may be found in a memorandum entitled, "Issuance of Admini-
strative Orders under Section 7003 of the Resource Conser-
vation and Recovery Act" dated September 11, 1981.

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                                -5-

      release  of a hazardous  substance  from  a  facility,
      he r.sy require  the Attorney General  of the United
      Ststes tc «ecure such relief ss pay  be necessary
      to abate such danger or threat...  The President
      may  also, after notice  to  the  affected State, take
      such  action ur.cer this  section inciuc.i.ic, but not
      limited  to, issuing such orders as may be r.ecessary
      to protect public health and welfare and the environ-
      ment. 2/

      In order for an Order to be issued,  the  following

legal pre-requisites must be met:

      A.  Necessity for a Determination Based Upon.Evidence

      A determination must be made that/ because of a release

or threat  of  a release, an imminent and substantial endangerment

may exist.  This determination  will depend upon documentary, testi-

monial, and physical evidence obtained through investigations

and inspections.  Other information concerning the-nature of the

threat posed by a site may already be  contained in Agency files,

such  as data generated pursuant to  5103 of CERCLA or the permit

and notification sections of RCRA.  The Order, therefore, must

include a  finding that an imminent and substantial endangerment

may exist, in order to. ensure that  this statutory requirement is

met.  (See sample order, Appendix B, Finding No. ?).
^/  The President has delegated his authority under this Section
to the Administrator of EPA and the U.S. Coast Guard by Executive
Order No. 12316 dated August 24, 1981.  EPA and the Coast Guard
have entered into a Memorandum of Agreement dated October 9,
1981, that all site-related releases  in the Coast Guard's juris-
dictional areas (coastal zones, Great Lakes, ports and harbors)
shall be the responsibility of EPA.

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      Section  106  requires  that t.u.e irr.r.ir.sr.t and substantial

encangsr.-ent  be caused by  "an actual or threatened release 2''

of  a  hazardous substance"  from a facility.  A "hazardous

substance"  is  defined in  Section 101(14)  of CERCLA, and is

generally any  substance,  waste or pollutant designated pur-

suant  to  Sections  307(a^  and  311(b)(2)(A)  of the Clean Water

Act,  Section  3001  of  RCRA,  Section 112 of  the Clean Air Act,

Section 7 of TSCA,  or Section 102 of CESCLA.   (Crude oil,

fractions tnereof,  natural  gas,  and  liquefied natural gas

are exempted  from  statutory coverage.)

     Whether  a release from a facility is  "actual" or "threatened"

primarily depends  upon temporal  considerations.   Actual releases

should be observable  in some  form, either  visually or through

analysis  showing contaminants present in samples of soil,  water

or air.   A "threat" of a release,  on the other hand,  involves

releases  which have yet to  occur or  have yet  to find their way into

the environment.   A bulging tank containing a hazardous substance

in which  pressure  has  built up/  and  a surface impoundment
I/   A "Release" is defined  in CERCLA  §101(22)  as  "any  spilling,
leaking, pumping, pouring, emitting, emptying,  discharging,
ejecting, escaping, leaching, dumping  or  disposing  into the
environment," with certain specific exemptions  (e.g.  release
solely in work place; engine exhaust;  release of certain  nuclear
material; and normal application of fertilizer).

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                               -7-
which is about  to overflow because  of heavy rainfall,  present

ctvi;us thrsats cf a release.  A  chreat  is also presented  by

csrrccinc. or leaking drur.s containing incompatible wastes  jr.i.-.cled

in a conur.cn area.  Accordingly, the determination of whether a

"threat" of a release warrants issuance  cf an Order is  a jurfgr.ent

decision to be made on a case-by-case basis.

     The nature of both the hazardous substances present at the

site and the release or threat cf release should be set forth as

findings in the order, together with the bases for such findings.

     C.  Necessity That Release or Threat of Release be
         Fr'am a Facility

     The release or threat of release must be from a "facility,"

which is defined in CERCLA $101(9) as:

   .  (A) -any building, -structure, installation, equipment,
     pipe or pipeline (including any pipe into a sewer or
     publically owned treatment works), well, pit, pond,
     lagoon, impoundment, ditch, landfill, storage container,
     motor vehicle, rolling stock, or aircraft, or (B) any
     site or area where, a hazardous substance has been
     deposited, stored, disposed of or placed, or otherwise
     come to be located; but does not include any consumer
     product in consumer use or any vessel (a watercraft or
     other contrivance used, or capable of being used, as a
     means of transportation on water).

     This definition of "facility" includes on-shore or off-shore

sites,  including land transportation facilities, from which

releases or threats might originate.  The Order must specify

the physical location that is the source of the release.

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                               -8-
     D.  Necessity for Existence of  Imminent and Substantial-
     Irider.cs presented  to support  the issuance of a SlCSCa)
order must show  "that there may be  an imminent and substantial
endangerr.ent" ro public  health or welfare or the environment.
     The words "may be"  indicate that Congress established a
                            *
standard of proof that does not require a certainty.  The evidence
need not demonstrate .that an imminent and substantial endangemsnt
to public health or the  environment definitely exists.  Instead,
an Order may be issued if there is  sound reason to believe that
such an endangerment may exist.
     Evidence of actual  harm is not required.  As the Court stated
in Ethyl Cor?, v. EPA, construing an endangerment provision in the
Clean Air Act:
          The meaning of "endanger" is not disputed.  Case
          law and dictionary definition agree that endanger
          means something less than actual harm.  When one
          is endangered, harm is threatened; no actual injury
          need over occur.  (541 F.2d 1 at 13,  footnotes omitted,
          original emphasis, D.C.  Cir., cert. den.  426 U.S. 941
        .  (1976).)
     It should also be noted while  the risk of harm must be
imminent in order for the Agency to act under 5106, the harm
itself need not be.   (See the legislative history to the
"imminent and substantial endangerment" provision of $1431 of the
Safe Drinking Water Act, H. Rpt. 93-1185 at 35-36.)  for example,
EPA could act if there exists a likelihood that contaminants
might be introduced into a water supply which could cause
damage after a period of latency.   One must judge the risk or

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                               -9-
 likelihocc  of  the  harm  by  examining the  factual  circumstances,.
 including/  but not limited to:  1)  nature and  amount  of  the
 hazardous substance  involves;  2)  trve  potential  for exposure  of
 humans or the  environment  to  the  substance, and  2> the  known
 or suspected effect  of  the substance  on  humans or that  part
 of the environment subject to  exposure to the substance.
     Legal  analyses  of  the concept  of imminent and substantial
 endangermer.t can also be found  in  Reserve Mining Co.  v.  EPA,
 514 F.2d 492 (8th  Cir.  1975); U.S.  v. Vertac  Chemical Co. et  al,
 489 F.Supp. 870  (E.D. Ark.  1980); U.S. v.  Solvents  Recover1/
 Service, 496 F.  Supp.  1127 (D. Conn.  1980);  U.S. v.  Midwest
 Solvent Recovery,  484 F. Supp.  138  (N.D.  Ind.  1980); U.S. v.
 Diamond Shamrock Cor?., 17 E.R. 1329,  (N.D. Ohio 1981);  U.S.  v.
 Price, 688  F.  2d 204  (3rd  Cir.  1982-) ; U.S. v.  Reilly Tar and
 Chemical Corp., 546  F.  Supp 1100  (D.  Minn. 1982).
     The nature of the  eftdangerment and  the basis for the finding
 of an imminent and substantial  endangerment must be  set  forth
 in the Order.  The link between the endangerment and the relief
 mandated by the Order should also be  evident.
     E.  Notice to Affected States
     Finally,  before an Order may be  issued,  the "affected state"
must be given  notice of the Agency's  intention to issue  the,
Order.
     fhe Agency is not held to  a  statutory period of time for
 notice.  Normally, written  notification  to the state should
 precede federal action  by  at least  one week.   Circumstances

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                               -10-
may arise, however, where  rapid  response  at  a  site  is  necessary.
I- s-jch  czrss,  izz'.zr.zz  of  ar.  Criar say folio-- an abbreviated
notice juried or  even a  telephone call made  by EPA  to  the
Director of  the agency responsible for environmental protection
in the affected state.   Written  confirmation must follow such
telephone notice.
     As  indicated above, the notification should be directed to
the Director of the state agency having jurisdiction, over
hazardous waste matters.  A suggested fora for a notification
letter is attached to this memorandum as Appendix A. "This
form also provides the format  for oral notice.
     An  "affected state" is interpreted to be  the state where
the facility is located  from which the discharge is being
released or threatens to be released, and in which the response
activity required by the proposed order will be taken.  In some
cases/ this may involve  more than one state, such as where the
facility is located near the border of a state and the
hazardous substances have migrated from the facility located
in one state into another state(s).   In those  cases, all of
the states in which the hazardous substances are found and in
which response activity may be performed pursuant to the order
should be notified.
III.^Persons To Whom an Order May Be Issued
     Section 106 does not specify any person or persons to whom
an Order may be issued, but permits the issuance of "such orders

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                              -li-
as say be necarsar?..."  Section lC4(a), however, refers to  the
•owner or operator" or "other responsible party" as the persons
co whom the A<5eiicy coulu look to determine whether clean-up  of
a site will be dene properly before expending CE2CLA funds.
Section 107{a), designating those who shall be liable for
response costs, specifies present owners and operators of i
facility, persons who were owners and operators at the time
of disposal of a hazardous substance, and generators and certain
transporters vhc, according to available evidence, contributed
hazardous substances to the facility.  It follows' that those
sane persons could be recipients of an Order issued under
Section 106(a), {see U.S. v. Outboard Marine Corp., 556 F. Sup?.
54, 57 (N.D. 111. 19621.  In addition, in appropriate cases,
it may be possible to issue orders to parties other than
those listed in Section 107(a), if actions by such parties are
necessary to protect the public or the environment.
IV.  Criteria for Issuance of SI06 Orders
     Other parts of this guidance document examine the legal
requirements for issuing an Order.  This section's purpose is
to list specific factors which favor the use of Orders
over other possible enforcement responses.  These factors include:
     •  Responsible parties' financial status
     •  Number of potentially responsible parties
     •  Certainty of the necessary response action
      \
     •  Agency's readiness to litigate the merits
        of the Order

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                               -12-



      Th e  theme  common  to  these factors  is  that  Orders  should


 be  iss-jad  in  these  situations  in  which  crrpliar.ce  with the


 terrrs  of  the  Order  is  feasible,  i.e., vher*  the P.espcr.isr.ts  •


 are  in a  position to perform the  oraered response  actions


 within specified time  periods.  This  does  not evean EPA must


 make  a pre-issuance determination that  Respondents will com-


 ply with an Order, but  rather  that compliance is practicable.


 If the Agency does not  anticipate compliance with  an Order it


 is considering  issuing, the use of the  Order nay serve only  to


 delay  direct  injunctive action under  $106  or the initiation  of


 Fund-financed response.   On the other hand, the Agency may wish


 to issue an Order in any  situation where the needed response action


 and the liability therefor are clear and straight-forward, so


 that refusal  to comply with the terms of the Order would not, in


 all probability, be with  "sufficient cause"  (CERCLA $107(C)(3)).


Such refusal would render the  Respondent liable for civil penalties

                        f
or punitive damages in the event  of federal cleanup.


     A.  Responsible Parties'  Financial Status


     Before an administrative  order requiring remedial  work


is issued, the Agency should assess, to the extent possible,


whether the responsible party has  sufficient financial  resources


to comply with the Order.  Financial information is available


from several sources:


     •  Agency files contain financial  information
     »

        collected as part of the  identification of


        parties responsible for the hazards posed

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                              -13-
        by sites on the National Priorities List.
      •  The Securities and Exchange Cemission  (SEC) recuires
        publicly traded ccr.rsr.iss to submit detailed financial
        statements.  This  information  is publicly available.
        (Consult NEIC'S manual entitled "Identifying Responsible
        Parties" for additional information on  obtaining SEC files.)
      0  Responsible parties may submit financial information
        to the Agency during discussions or negotiations held
        prior to the issuance of an Order.
     In addition, NEIC can provide further information on
Respondents' financial status.
     B.  Number of Responsible Parties Subject  to the Order
     For two primary reasons, the success cf Orders for
remedial action is enhanced where there are relatively few
responsible parties.
     1) Coordination of Response Action
                      T
     An Order issued to multiple Respondents who are jointly
and severally liable generally will not allocate individual
clean up responsibilities._£/  Instead, the Order will require
the same response action to be conducted by each responsible
party.  Multiple parties must organize and coordinate their
response to ensure compliance with the Order's  requirements.
Thus, compliance with Orders may depend upon group agreement
V  However, the Agency may issue an Order to a Respondent
"requiring a response to a discrete, separable aspect of the
hazard at a site, notwithstanding the existence of other
responsible parties or other less divisible problem areas.

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                              -14-



 on  each meter's share  of  the response  cost.   In  a  large  group



 or  responsiole  parties,  it may  be  difficult  for  the  group to



 develop A  consensus on  individual  liability  and  perform respor.se



 activities  as quickly as necessary  to £.iol?  ijaminent harard



 conditions  at a site.  Accordingly,  issuing  Orders  to all respon-



 sible parties may not be appropriate where there  are a large



 number of parties who are  unlikely  to agree  on a  concerted response.



 Instead, the Agency will pursue  judicial  remedies or consider



 issuing Orders  to a selected  subset  of  responsible parties.



     Even  in situations where Orders are  issued  to-a large number



 of parties, Agency policy, which should be reflected in the



 terms of the Order, is that each Respondent  is individually



 liable for  compliance with the Order's  requirements.   Individual



 liability also  extends to  penalties  and punitive' damages  imposed



 by CERCLA for failure to comply with the Order.



     2) Supervision     '



     After  an Order is issued, the Agency conducts compliance



monitoring  at the site to ensure that responsible parties comply



with the terms of the Order.  Although  no maximum number  of



responsible parties can be specified as optimum,  it  is clear that



the Agency's oversight responsibility is most effectively accom-



plished where there are a  limited number of  responsible parties.



     C.  Specificity of the Necessary Response Action



     Jn order to minimize the potential for  confusion  between



Respondents and the Agency concerning the required response



action, Orders should be used in situations where the  nature



of the required response action has been relatively  precisely

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                                -15-


icentified.  Orders are  normally better suited to mandating

discrete  tasks  such as drur.  Tsr.cvals  rsther than less exact

, .*. .•_-,- -.. —u . — —i,__-•—_  r•• ea  i ^ — -.. u _ J : cc .' ... t b e._ «•»- =
a-... —..5 5 —».. C5 ^ _c..j.^ ..3.  «r_..e_".ac  _. —ij —c w.---— — — _ --- --.c

Agency to supervise compliance  activities,  and for responsible

parties to reach  agreement on  a  compliance  plan.   In  most cases,

information sufficient to describe  the  required response actions

will be generated by the RI/FS.

     An Order should contain the following  elements (see

Appendix 3):

     •  The steps the Respondent must take  to comply  with

        the Order;

     8  The effective date of  the Order;

     0  A mandatory time-table  for  completion

        of remedial work; and, where  appropriate,

     0  A statement to the effect that  other actions  or  orders

        may follow.
                       '  r
     Specific remedial action Orders  benefit both the Agency and

responsible parties.  Responsible parties are provided clearly

defined compliance standards which  will facilitate agreement

among the responsible parties on a  remedial plan.   If the

responsible parties then determine  that the remedial  work is

best accomplished by a third party  contractor, the Order provides

a basis for their contract negotiations.

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      Specific  Orders  benefit  the  Agency  by  red'jcing  the  difficulty
 of supervision and  judicial enforcement.  In  noncompliance  situa-
 tions,  the Agency r.sy seek  to  enforce  an  Crcer  in  ccurt.  A
 specific Order provides  the court with Agency-articulate- stan-
 dards by which to judge  the responsible party's  non-compliance
 with  its terms.  Therefore, EPA should make every  effort to
 clearly articulate  the response activities  rsquired  by an Order.
    . E.  Agency's Readiness to Litigate  the Merits of the Order
     After the Agency issues an Order, the  respondent may seek
 judicial review to  stay  the Order.  Respondents  may  challenge
 their liability or  the appropriateness of the remedy specified
 in the Order.   On the other hand, the  Agency may promptly seek
 to enforce, the Order  in  court.  In  light  of these-possibilities,
 the Agency must be  ready to defend  the Order in  court at the time
 it is issued.   This means that the  site problem, the reasonable-
 ness of the required  response, evidence of  liability, and the
Agency's response to  issues raised  by  the recipient  must be
 thoroughly documented, and that the documentation be organized
 and easily retrievable.  The documentation will  constitute  the
 administrative  record for any litigation.
     E.   Competing Considerations
     The absence of the  factors listed above may argue in favor
 of pursuing a  judicial or Fund-financed,  rather  than an adminis-
 trative, remedy.  For example, EPA  should not normally issue an

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                               -17-

order  if the necessary  response  actions have not -been clearly

identified.  Ir.  addition,  Acer.cy er.fcrcsTranr personnel should

g ^ ^ *•„ *-* i* 1 y C*"*r^S ^ ^*S **  ^ ^ o  •*n/'**f»*«2. CC'J 2T3 3  C^ »"**i^** * * J

     8  the responsible parties  have violated provisions

        in several environmental statutes;

     0  the opportunity for  public comment  on the terms

        of a settlement agreement warrants  the use of a

        judicial consent decree,  (where there is a 30-day

        comment  period  before  the decree is finalized)  _5/;

        and

     0  there is a need for  long term  court oversight of

        a settlement agreement,  (such  as in cases where an

        agreement  calls for  separately enforceable response

        milestones prior to  completion of the cleanup).


V.   Orders Relating to Removals and Remedial Actions

     Guidance on conducting  removal actions issued by the

Office of Emergency and Remedial Response (OERR)  divides the

statutory concept  of removals  into "immediate" and "planned"

removals.

     A.  Immediate Removals

     Immediate removal  actions are to  be taken only  if a

response is needed within  a  relatively short time frame to

prevent or mitigate significant  harm to human health or the
£/  However, it should  be  noted  that  the  Agency is exploring
mechanisms which provide for public comment  on  both unilateral
and consent administrative Orders.  Guidance on this matter will
be provided at a later  date.

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                              -18-
environraent, and such action will not otherwise  be  provided
or. a tirreiy basis.
     Orders T.2" be used tc cc^rpsl various  i~r.2ii.2t5  rs—cval.
measures,  including:
          1.   Suspension of activities which aggravate  an
               existing release or substancial threat of a
               release (e.g., active use of a storage tank
               judged by the OSC to be in .imminent danger cf
               failure).
          2.   Suspension of activities which interfere with
               Federal removal actions (e.g., plant  traffic in
               area of cleanup).
          3.   Movement or non-movement of a transport vehicle
               (railway tank car, tank truck,: tank vessel)
               which is the source of a release or substantial
               threat of a release.
                      r
          4.   Measures to limit access,  such as fencing.
          5.   Use of readily available equipment, owned by the
               responsible party, to contain or remove a release
               during the initial stages of a response before
            •-  the OSC is able to obtain comparable  equipment
               from other sources.
          6.   Dikings;  construction of berms; or removal of
               the hazardous substance to an approved facility.

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                               -19-

 (This  list  illustrates  various uses  for  an  Order;  it  is  not  an
     Section 1-^5 'a) Orders, both  in  iirunediate  and  non-iirjaediate
situations, zust  contain  a  stateaent notifying the party  of
EPA's authority and the liability that may be  incurred  by
failure to comply.  As specifically  as possible  the Order
prescribes the response activity  and sets the  date for  its
completion.  To ensure enforceacility of  the Order, EPA should
not undertake its own CERCLA-funded  response activity during
the period of time given  to the party to  respond,  unless  (i)
such CERCLA-funded response activity becomes necessary  due to
the immediacy of the release or  threat of release or (ii) the
Respondent formally and unequivocally states an  unwillingness
to comply with the Order.  In the event the party  undertakes
response activity, the OSC should remain on-site to ensure
that the work is being conducted  in  accordance with the Order.
                              f
     B.  Planned Removals and Remedial Actions
     Planned removal situations are  those that allow several
days or weeks to execute  the response.  Remedial actions, on
the other hand, are generally those  intended to provide a
permanent resolution to the release  and require a  longer  time
and more expensive efforts to implement.
     As in the case of immediate  removals, an  Order is  available
to compel response measures routinely taken during planned removal
and remedial actions. "Removal activity* includes  assessment
programs to evaluate the  nature of the problem, and removal of

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                              -20-

material from the site.   "Remedial actions" are  those consistent

•-.•it.", s. psrr.cr.£-t rs-s-y,  ar.i  ir.clu'c sue!-, activity as cappi,-.;-  th

ai-ea, trenching, and provision of an alternate water supply.£/

EPA's position  is that any activity that the Government might

undertake at a  site - from planning and studies  to complete

cleanup-could be ordered  pursuant to §106(a).  Of course, the

issuance of more than one Order may be necessary if the cleanup

is performed in stages, or if additional responsible parties

become known to EPA who should participate in the cleanup.


VI. Procedures  for Issuance of S106(a) Orders.

     CERCLA designates the President as the primary official

responsible for taking response and enforcement  action under

the Act.  The authority to issue administrative  orders under

S106(a) has been delegated to the Administrator  of EPA by

Executive Order No.  12316, and redelegated by the Administrator
                       " r
to the Regional Administrators and the Assistant Administrator

for Solid Waste and Emergency Response (AA-OSWER).  The RAs and

the AA-OSWER must consult with the Associate Administrator for

Legal and Enforcement Counsel (AA-OLEC) prior to exercising

this authority, and the RAs must obtain advance  concurrence from

the AA-OSWER. (See Delegations Manual: 14-14.)  The AA-OLEC has
6/  See $101(23) of CERCLA for definition of "remove" or "removal",
and 5101(24) of CERCLA for definition of "remedy" or "remedial
action".  Those definitions contain detailed examples of the
types of activities that fall within these categories.

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                              -21-


redelegated the consultation  authority  to  the Associate  Enforce-


ment Counsel-Waste and the Recional Counsels.  The AA OSWE?  has


TS-ele^ated his advance 7"^c-rr?r.c9 a'jtnorit" tc  the Dir^ctrr,
Waste Programs Enforcement will develop and issue criteria  in


separate guidance which will be used to evaluate circumstances


uncer which this advance concurrence requirement will be waived


on a Region by Region basis.  Regional offices are expected to


develop strong administrative enforcement programs, on an expedi


tious schedule, which will permit their, to initiate .and issue


legally and technically adequate administrative orders with


only prior notice to Headquarters.


     A. Planned Removals and Remedial Actions


   For planned removals and remedial actions, Orders are


drafted oy the Regional program office with the cooperation of


the Regional Counsel's office.  The draft Order is forwarded


to the Office of Waste Programs Enforcement for review and con-
                           f
currence.  The Regional Administrators will usually . issue the


Order and provide prior notice of the action to the state.


     B.  Immediate Removals


     For those Orders which require emergency or quick handling,


usually in response to situations warranting an immediate


removal, the following approval sequence will be used:


     The Regional Administrator first must determine whether


to issue an Order based on communication with the OSC and
        V

consultation with Regional Counsel.  The Region then prepares


an order with any supporting information and electronically

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                               -22-
 tra.~3~.ii3  c.u.o  -.ctcrial  to  the  Office  of  Waste  Programs  Enforce-
 sc.-i  for review  arc  concurrence.  Notification to  the State
 of our  inter.':  to  issue  the Order  should  be  accomplished orally,
 and followed up  by fcrr.al written notice.

 VII.  Crrortur.ity to Confer
     Agency policy is to offer parties to whom EPA  has  issued  a
 unilateral S106 Order an opportunity  to  confer with  the Agency con-
 cerning the appropriateness of its  terms and its applicability to  the
 recipient.  The conference will help  EPA ensure that it has
 based its Order on complete and accurate information and help
 EPA and Respondents reach a common  understanding of  how the
 Order should be  implemented of modified.  The  procedures for
 exercising this option  are communicated  to  respondents  through
 the text of the Order itself.  (See sample  Order, page  4 of
Appendix B. )             •  ,
     A.   Planned Removals and  Remedial Actions
     Each Order will specify a date when the Order becomes
effective.  For actions other  than  immediate removals,  the
effective date should ordinarily  be twenty  calendar  days from
the day the Order is received  by  the  Respondent.  Certain Orders,
such as those requiring that long term remedial actions be taken,
may warrant a more extensive examination of the facts.   In such
cases, the Order may specify an effective date more  than twenty
days removed to permit  the Respondent an opportunity to discuss  the
Order with the Agency beyond that accorded  by  th« procedures set
forth in Subpart C below.

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                               -23-
      If  the Respondent  seeks  to  confer  with  the  Agency about
 t.w.e Order, the  Respondent must provide  written notification
 to tne EPA official  listed  in  the Order within ten  calendar
 cays  cf  the da-te  of  receipt.   T.ne ccr-fer^ce  shrulc be scheduled
 and held as scon  thereafter as practicable, but  prior  to  twenty
 cays  frcr. the data the  Order was received  by  the Respondent.
      B.  Emergency Situations
      The applicable  time periods for  the effective  date and
 for requesting  a  conference nay  be shortened,  (e.g.,  to ~2
 and 48 hours respectively), or the conference procedures  may
 be eliminated entirely, if the immediacy of the  hazard posed
 by a  site and other  surrounding  circumstances so warrant.
 In the former situation, the Order should  permit the Respondent
 to request a conference orally,  later followed by written
 notification. .
      C.  Conference  Procedures
      The conference  will normally be  held  at  the appropriate
 c.PA Regional office  and will be  presided over by the. Regional
Administrator's designee.  However, other  arrangements may be
 agreed to for the sake  of convenience to the parties.  At the
 conference, EPA should  be prepared to provide the Respondent
with  information  sufficient to explain  the basis for the  Order
 and to promote  constructive discussions.   The Respondent  will
have  the opportunity to ask questions and  present its  views
 through legal counsel or technical advisors.  The schedule and
 agenda for the  conference will be left  to  the discretion  of
 the EPA official  leading the conference, as long as the Respondent

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                               -24-
 rereives  a  reasonable  opportunity to address  relevant  issues.
      Following  the  conference,  a  written suanary of  the proceeding
 r.usf be prepared, signed  by  the Agency official  who  presided over

           0   A  statement  of  the date(s!  arc attendees
              of any  cc-ference(s)  helc;  and
           0   A  description of  the major  inquiries made  and
              views offered by  the Respondent  contesting
              the terms  of  the Order.
 In  addition,  the presiding official  must prepare a statement
 which  addresses the  significant arguments  raised by  the Respon-
 dent  and  which  recommends  whether and  how  the Order  should  be
.modified, together with the  reasons  therefor.
    D.  Modification, Revocation,  or Stay  of  the Order
      Based upon a review  of  the file upon  which  the  Order
 initially was based, any  probative  information or argument
 proffered by  the Respondent  following  receipt of the Order,
 and the recommendation  of .the presiding  official,  the issuing
 official  may  modify  or  revoke the  Order.   Any modification  to  the
 Order must be communicated to the  Respondent  as  part of a copy of
 a written statement  containing  the elements listed in Subpart  C
 above.  The original should  be  kept  in the Agency files along
 with the  evidence supporting the  order,  copies of  written
 documents offered in rebuttal by  the Respondent  during  the
        V
 conference, and a copy  of the request  for  a conference.
     The  issuing official may also stay  the effective date  of
 the Order if  the conference  process  could  not be completed

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                                -25-
vithin  the specified  time  period. . Befr-re  substantially  modifying-
cr  revoking  an Crcer,  the  issuing official  must  consult  wit.1".'
the appropriate Headquarters or Regional course!  zr\t  ?u»-2i?  --*?•
advance  cr-.cjrrer.ci cf  the Z;rector, C'^rE.

VTII.  Procedure _If_Order  Is Not Obeyed
       In the event the party  to whom  the  Order  is  issued  does
not comply with its terms, the  Agency  must  quickly  decide
whe-her  to attempt to  enforce  the Order by  referring  the case.
to the Department of Justice for filing of  a  suit to  force
compliance, or whether  to  undertake cleanup of the  site  by
use of CERCLA funds, and then  file suit against  the party  for
reimbursement of the costs expended plus statutory  penalties
for failure to comply with the  Order.
     The determination of which action to pursue  depends
on the type of response action  to be taken.   Obviously,  if an
immediate removal action is, required by the hazard  at  the
site, EPA will clean up the site and attempt  recovery  of costs
and penalties in a subsequent  recovery action.  The same course
of action applies to a planned  removal where  the  removal action
must be quickly undertaken and  cannot  await the  filing of  a
suit.   However,  planned removal or remedial responses  which
require an extended period of  time to  perform, and  in  which
initiation of action may be delayed for a brief period without
jeopardising human health and  the environment, may  allow sufficient
time for the filing of a suit  to enforce the  Order, or at  least
that portion of the Order which calls  for  the planned  removal or

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                               -26-

 remedial  action  to  be  taken.
                     .          .      .     ..     -.

ciucs  the  strength  of  evidence end  the  financial  ability  cf  the

party  to perform £.-.= -ssired  response activity.   The decision  c:

which  option  to pursue is  initially  to  be made by the Regional

Administrator/ in the  sane manner and using the same procedures

as previously prescribed for  any other  enforcement action.   The

Regional Administrator's recommendation is then forwarded  to

Headquarters  for action.


IX.  Note  on Purpose and Use  of This Memorandum

     The policy and procedures set  forth herein,  and internal

office procedures adopted pursuant  hereto, are intended solely

for the guidance of attorneys and other employees of the U.S.

Environmental Protection Agency.  They  are not intended to nor

do they constitute  rule-making b> the Agency, and nay not be

relied upon to create  a right or benefit, substantive or pro-

cedural, enforceable at law or in equity, by any  person.  The

Agency nay take any action which is  at  variance with the

policies or procedures contained in  this memorandum, or which

is not in  compliance with internal office procedures that may

be adopted pursuant to these materials.

     Attached to this memorandum as Appendices A  and B are

     •  A  sample letter to a state providing notification
        »
        of the Agency's intent to issue  a $106 Order; and

     •  A  sample Order.

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                              -27-





     If you have any questions or problems concerning any
(382-4314), or Russell 3. Selman (426-7503) or Steve Leifs



(j32--iS43) =f t~e Office of Legal and Enforcement Policy.





Attachments

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                          Appendix A

                  STATE NOTIFICATION  LETTER
CERTIFIED MAIL
Mr. R. Jones
State Agency
Division of Environmental Control

Dear Mr. Jones:

     Enclosed for your information is a copy of an order
[stamped "DRAFT" and "CONFIDENTIAL"] that the Agency intends
to issue on or .after   [date]   , to the XYZ Company, pursuant
to Section 106(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, (42 USC 9606).  The
order requires certain activities to be taken at the company's
site located at  [location] .  Please refer to the enclosed
copy of the proposed order for the specific actions required
of the company and the time within which such actions must
be taken.  If you have any comments or questions concerning
the order,  please contact [EPA official] at [office].

                          Sincerely yours,
                          Assistant Administrator for
                            Solid Waste and Emergency Response

                                         [or]

                          Regional Administrator

                                 [or their designees]


Enclosure

cc:  Honorable J. Smith, Governor.

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                             Appendix B

                            SAMPLE ORDER


          MAIL        __


               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In The Matter Of                       )
(Name of Person,                       )
 Finn or Corporation)                  )
                                       )   Docket No._
Proceeding Under Section 106(a) of the )
Comprehensive Environmental Response,  )
Compensation and Liability Act of 1980 )
(42 USC Section 9606(a) )	)
                               ORDE?.


     The following Order is issued on this date to (insert name
and address of person, firra or corporation, along with facility
name or place of business if the Respondent is not the owner
or operator) ('Respondent(s)"), pursuant to $106(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA)  (42 USC 9606(a)), by authority delegated to
the undersigned by the'Administrator of the United States Envi-
ronmental Protection Agency (EPA).   Notice of the issuance of
this Order has heretofore been given to the State of __^^___ .

     There is an imminent and substantial endangerment to the
public health and welfare and the environment due to a (threat
of a release)(release) of (a) hazardous substance(s) as defined
in 5101(14) of CERCLA (42 USC 9601(14)), from the following
location (the "Facility"):

                (insert legal description, if known;
              otherwise, use street or route address)

This order directs you to undertake action to protect the public
and the environment from this endangerment.

    %               FINDINGS AND CONCLUSIONS

1.   (Choose one or more of 1A through IE, as appropriate under
      the factual situation of the case.  Do not include headings.)

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                                -2-

 1A.   [(Present G^ner)- Respondent is  now,  and  has  been  since
 	  ,  19	,  tne  (owner)(and)(operator) .of the Facility,  as
 determined from  (source  of  information)].

 IB.  I(??mer owner/operator) -  Respondent  was,  fro?. 	,
 1?	, until 	. IT-	,  the  (cwnsr){and5{3?erat:rJ
 of  the Facility,  as determined  from  (source of information).
 During thst t ir:e, hazardous substances, irrl'Jding  those  described
 herein,  were disposed of  at the facility.  Respondent sold  or
 otherwise  transferred and conveyed the Facility  to ________^
 on 	, 19	, according to  (property records )T"I

 1C.   [(Generator) - Respondent  (disposed of) (arranged,  by  con-
 tract or agreement, for  the disposal  or transport  for disposal)
 of hazardous substances  at  the  Facility as determined from
 (source)).                                     •

 ID.   [(Transporter) - Respondent chose to  accept hazardous
 substances for transport  to, and disposal  at,  the  Facility  as
 determined from  (source)].

 IE.   [(Other Party) (Insert reasons why ordered actions  are
 necessary  to facilitate  the abatement of the hazard, prevent  the
 aggravation of the hazard, or otherwise protect the public  health'
 and welfare" and/or the environment.)]

 2.    (Describe the nature of the facility.)

 3.   On  or about the 	 day of 	, 19	, an
 inspection of the Facility was conducted by     (names)	 ,
 (a) duly authorized representative(s) of (EPA,  State agency).
At the time of .that inspection,  the inspectors observed  the
 following conditions existing at the Facility:

     A.   Approximately 1000 drums of liquid,  semi-solid
          and solid material,  which were leaking,  without
          covers and in various stages of  corrosion,
          rusting and other deterioration, located directly
          on the ground.   Material leaking from said drums
          was observed running approximately 25 yards
          across the site into Crystal Creek,  which adjoins
          the Facility,  and which is a tributary of Pristine
          River, a navigable water.   According to  records at
          the Facility,  materials contained in the drums
          include:

     i               (describe hazardous substances)


     B.    An area in the  Facility (the "Landfill area")
          of approximately four (4)  acres  in size,
          without vegetation,  from which leachate  was

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                               -3-

           ocserved  flowing  approximately  forty  (40)  yards
           ir.to  Crystal  Cree.k.   Vegetation  had been  killed
                 '
                                                            ,
          it  the  Facilit"/  ths  follc'''ir!''  h2Z2r---s  su^stsr.zss
          r.2d beer:  piac=c  in  the  Landfill area:

                     flist  hazardous  substances-
                     trsen  continue  with  the following)

     Ac  the time  of  the inspection,  _ samples of  the  drummed
waste, samples  of the  leachate  from  the Landfill area,  and _
samples  of  (soil, surface  water,  groundvater,  air,  etc.  ) were
obtained by the inspector ( s ).

4.   An  analysis  of  the samples taken at  the  tin*? of. the  inspec-
tion disclosed  whe  presence at  the Facility of the  following
substances  in the concentrations  set forth:

            (list  hazardous  substances and concentrations
           confirmed fcy analysis  - then continue with
           following sentence)

     These substances  are  "hazardous suostances" as defined in
5101(14) of CERCLA, and are subject  to the terms and  provisions
of that Act.           .

5.   The hazardous  substances described above  are treated or
disposed of at  the  Facility in  such  manner that they  (are being)
(threaten to  be ) released 'and  discharged from the  Facility into
the  (soil, groundwater,, surf ace water, air, etc.) and other
parts of the  environment.

6.   (Describe  population  or environment  at risk and  route of
exposure).  Exposure to said hazardous substances may cause
illness, disease, death or  other  harmful  effects to plant and
animal life and humans.

7.   The (release)  (and/or) (threat  of release) of  said hazardous
substances may  present an  imminent and substantial  endangerment
to public health  and welfare and  the environment.

8.   In order to protect human health and welfare and the environ-
ment, it is necessary  that  action  be taken to  contain and terminate
the  (release)  (and/or)  (threat  of  release)  of hazardous substances
from the Facility into the  environment.

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                                -4-

                               OP.D r?.

     S2Sci -jtrn  the  foregoing  ceismir.stic.-.s  ar.i  Fir.dir.js  of
face,  it  is nereoy urcareo and Directed  tnat:

     f.N'OTI -  the Respondent nay be criered  to undertake
     any  resr^se •erivity tr»t may  b*» reTv.re?. tt
     protect  p'jslic  health, welfare  and  the environment,
     including,  but  not  limited to,  those actions which
     the  government  is authorized to  carry out under
     CERCLA.)

     (Insert  he.re the response actions which  EPA  directs
     the  Respondent  to take at the site.  Each activity,
     (i.e., red ramming cf waste, construction of  fencing,-
     levees,  submission  of plans  for  installation of
     monitoring welis, etc.),  and the date for compliance
     with each activity, should be listed separately.)

     (Insert  a statement to the effect that other orders
     or action may follow.}

           EFFECTIVE DATE - OPPORTUNITY TO CONFER

     This Order  is effective on the  twentieth  calendar day
following receipt thereof by Respondent, and  all  times for
performance of .response activities shall be calculated from
that date.  (Note: For immediate removal situations,  the
effective date will  be considerably abbreviated.)

     You may,  within ten calendar days after  receipt  of this
Order,  request in writing a conference with (Official) to
iisjuss this Order and its applicability to you.  (Note:  For
immediate removal situations,  the time for requesting a hearing
will be abbreviated.  In addition, the Respondent should be
informed  that he or  she may make an oral request for  a con-
ference,  to be followed up by  written notice  within two to
three days.)

     At any conference held pursuant  to your  request, you may
appear in person and by attorney or other representatives  for
the purpose of presenting any  objections, defenses or contentions
which you may have regarding this Order.  If  you desire such a
conference, please contact ( name, title, address and telephone
number of EPA contact) within  the time set forth above for
requesting a conference.

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     Respondent  is  advised  that  willful  violation or failure or


civil per.slty of r.ct n:crs sr.a.n  53000  for each  dsy ir. which sue."
violation occurs or such failure to  ccnply  continues.   Failure
to comply with this Order,  or any  portion  thereof,  withou-t
sufficient cause, may subject you  under  §lC?(c)(3)  of  C."?.C!A,
U2 U.S.C. $9607(c)(3)), to  liability  for  punitive  damages in an
amount up to three  times the amount  of any  costs  incurred
by the government as a  result of your  failure  to  take  proper
action.

     WITNESS my hand in the City of                     ,  Stats or
	/  as (title of  authorized  EPA issuing official),
on this 	 day of 	,  19
                    UNITED STATES ENVIRONMENTAL  PROTECTION AGENCY

                    By:	'	

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  ADMINISTRATIVE PROCEDURES
 FOR §3008(h) UNILATERAL ORDERS
§3008(b) provides for hearing on request
§3008(h) procedures streamlined

-------
 §3008(a) PROCEDURES APPLY WHEN
Joint §3008(a)/ §3008(h) order
§3008(h) orders seeking to revoke/suspend authority to
operate under §3005(e)
§3008(h) (2) orders seeking penalties for noncompliance
with §3008(h) order

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      ADMINISTRATIVE RECORD
Prepare prior to issuance of order
Exclude confidential business information
Exclude deliberative documents
Index and make available
Order should state when and where available

-------
PHASED APPROACH TO ORDERS
    Studies
    Remedies
    Interim Remedies

-------
 GENERAL PROVISIONS
Issued by designee of RA
Service effective upon receipt

-  Personal service
-  Certified mail
Evidentiary hearing not required
Ex parte contacts allowed

-------
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, O.C. 20460

*>*i**S&

                          FEB I  9 1987
MEMORANDUM

SUBJECT:  Final Administrative Hearing Procedures for RCRA
          Section 3008(h) Orders

FROM:     Thomas L. Adams, Jr.  ^^^^-c. K-^S*-^  \
          Assistant Administrator                 . \
            for Enforcement and Compliance MonitortngN
             ,• *^»_  y^-x^j
          J. Winston Porter
          Assistant Administrator
            for Solid Waste and Emergency Response

TO:       Regional Administrators
          Regional Counsels
          Regional Waste Management
            Division Directors
          Office of General Counsel
     We are hereby transmitting to you the final version of the
Administrative Hearing Procedures for RCRA Section 3008(h)
Orders (and related General Guidance).  These procedures reflect
the input of a number of commenters from the Regions and other
Headquarters offices to whom we extend our thanks.

     In response to suggestions made on the draft procedures
circulated for comment on November 21  , 1986,  we have made several
changes in the procedures.  These include: (1) allowing the
Presiding Officer and Regional Administrator to engage in ex
parte contacts, while insuring that any new and relevant inTorraa-
tion gleanwfr from such contacts is served on opposing parties,
who will hov« an opportunity to respond to sane;' (2) adopting
alternative language in the draft of the "study order" procedures
which will permit respondents  to ask questions during the hearing
only when the Presiding Officer in his discretion deems it appro-
priate; (3) returning to earlier "remedy order" procedure language
which requires that the Agency respond to written questions in 14
(rather than 30) days, so as to insure that Agency responses are
available before the hearing;  (4) allowing use of the study order
procedures for orders directing that  limited  interim measures  in
conjunction with studies be undertaken; and (5) restricting

-------
                             -2-
respondent's ability  to make major  evidentiary  submissions  at  the
hearing rattatr  than during  prehearing  procedures  while  insuring
that  the Agency may seek  leave  to respond after the  hearing  to
late  submissions.  We have  also  included  in  the "General Guidance"
which accompanies the Administrative Hearing Procedures a require-
ment  that the public  be afforded an opportunity to comment on  the
Agency's proposed remedy  and be given  notice of the  final remedy
before it is implemented.

      please also note that  these procedures  reguire  that initial
corrective action orders  be issued  by  a Regional  official other
than  the Regional Administrator.  This requirement insures  that
the Regional Administrator, who will issue the final Agency
decision affirming, modifying, or withdrawing the initial order,
is not "tainted" as a decisionmaker by reason of  having earlier
performed a prosecutorial function  in  the same proceeding.
Accordingly, it will  be necessary for  Regional Administrators,
who have not already done so, to redelegate  authority to issue
initial (and final) ^-corrective action orders.

     Several commenters have asked whether a request for a  hear-
ing under these procedures would prevent an order from becoming
effective, or, stated differently, whether an initial corrective
action order may be enforced after a request for  hearing, but
before issuance of the Regional Administrator's final decision.
The Office of General Counsel has determined that, in light  of
the language of RCRA Section 3008(b) which indicates that an
order becomes final unless  the respondent requests a hearing,  the
order may not be enforced once a hearing is  requested until  a
final Agency decision on  the matter is issued.

     In developing these  administrative hearing procedures  it  has
become clear that the regulations in 40 CFR Part  22  governing
adjudicatory hearings on  RCRA Section  3008(a) orders for injunctive
relief and/or penalties, may in certain respects  exceed minimum
due process requirements.  Accordingly, we have decided to  re-
evaluate these regulations  to determine whether,  as  they apply to
certain RCRA Section-  3008(a) and similar proceedings, they are
unnecessarily cumbersome or burdensome.  Your thoughts on these
questioM>~vill be invited at a later date.

Attachment

cc:  Lisa Friedman
     Bruce Meddle
     RCRA Enforcement Branch Chiefs, Regions I-X
1  The procedures contemplate that final orders would be signed
by the same official who issued the initial order.

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                                                           FEE  I 9 !9?~

GENERAL. GUIDANCE ON ISSUANCE OF RCRA SECTION 3008(h) ORDERS

     1.  To satisfy the public hearing requirement of Section
3008(b) , unilateral RCRA administrative orders issued pursuant to
Section 3008(h) must provide the named person or persons with the
opportunity for a hearing.  This guidance document and the
attached hearing procedures set forth the procedures for issuing
an administrative order for corrective action and conducting a
hearing, except for hearings for the following types of orders:
(1)  Section 3008(h) orders that are combined in one order with
claims under Section 3008(a);  (2)  Section 3008(h) orders that
include a suspension or revocation of authorization to operate
under Section 3005 (e);  and (3)  orders issued under Section
3008(h) seeking penalties under Section 3008(h)(2) for noncorapli-
ance with a Section 3008(h) order.   Hearings for the three above-
outlined categories of orders must be held under 40 CFR Part 22.
The procedures in 40 CFR Part 22 do not apply to other orders
issued under Section 3008(h).

     2.  Except in unusual circumstances, for orders not  issued
on consent, separate orders will be issued for distinct phases of
work rather than a single, multiple phase order.  Consent orders
may also be issued in a similar fashion.
     Accordingly, when a  particular corrective action  is  likelv
ultimately to involve studies, interim measures, and remedy, the
first order should address the studies (including both the RCRA
Facility Investigation, during which the nature and extent of
any releases are characterized, and the Corrective Measures

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                             -2-
Study, during which proposals for remediation are developed) and
any known  interim measures.  A subsequent order(s) should address
additional actions to be undertaken.  A copy of the "Administra-
tive Hearing Procedures for RCRA Section 3008(h) Orders" (not to
include the "General Guidance on Issuance of RCRA Section 3008(h)
Orders") should accompany each initial administrative order.  A
hearing under these procedures may be requested by a respondent
whenever a new order is issued.
     3.  Prior to the issuance of an initial administrative order
or a final administrative order on consent,  the EPA office issuing
the order shall prepare an administrative record supporting the
findings of fact, determinations of law and relief in the initial
order or final order on consent.  The administrative record must
have an index and be available for review during normal business
hours, after issuance of an order.  The order must state when and
where the record is available for review.
     4.  The record shall include, subject to applicable law
restricting the public disclosure of confidential information and
deliberative material,  all relevant documents and oral  informa c ion
(which has been reduced to writing) which the Agency considered
in the process of issuing the order, including: (1) EPA records
on conditions at the facility, such as  inspection reports, sampl-
ing and analytical data, business records, and photographs;
(2) other reports and internal Agency documents used in generating
or supporting the enforcement action; (3) copies of all relevant
correspondence between EPA and the respondent; (4) written records

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                             -3-

of relevant conferences and telephone conversations between EPA
and the respondent; (5) copies of correspondence between EPA and
State or other federal agencies pertaining to the enforcement
action; and (6) comments submitted by the public during the public
comment period on the RCRA Facility Investigation/Corrective
Measures Study results and proposed remedy,  EPA's responses to
significant comments,  and any statement of the basis and purpose
of the proposed corrective measures prepared by EPA.
     5.  Following the respondent's submission of its report on
the RCRA Facility Investigation and Corrective Measures Study the
Agency shall develop a proposed plan for corrective measures.  The
Agency shall prepare a document that summarizes the data relating
to releases, outlines the -recommendations contained in the
Corrective Measures Study, and indicates briefly why EPA has
adopted the proposed plan for corrective measures.
     The Agency shall then (1) publish a notice and brief analvsis
of the proposed plan for corrective measures and make such olan
available to the public, and (2) provide a reasonable opportunity
(ordinarily 30-45 days) for submission of written comments and
(in the event the Regional Administrator deems it appropriate) a
public meeting on the plan.  If the Regional Administrator denies
a request for a public meeting, he shall explain his decision in
writing.
     The Agency shall, as necessary, modify  its proposed plan for
corrective measures on the basis of written and oral comments
received.  Prior to issuance of the initial  order for corrective

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                             -4-
measures the Agency shall prepare a responsiveness summary



indicating whether and why it has accepted or rejected any sig-



nificant comments.  Following finalization of the order tor



corrective measures but before implementation of corrective



measures, notice of the final plan for corrective measures shall



be published and the plan shall be made available to the public.



     Where, in the interest of protecting human health and the



environment, it is important that interim corrective measures be



implemented quickly, no advance opportunity for written or oral



comments will have to be afforded to the public.  Here, EPA will



simply provide substantially contemporaneous notice to the public



of interim measures implemented.  It is further contemplated



that, where the Agency has directed the owner/operator to under-



take certain remedial investigations but later determines that no



corrective measures are required, the public shall have an oppor-



tunity to comment on this determination to the same extent as it



may comment on a proposed plan for corrective measures.



     Public involvement beyond that provided for herein is



allowable at the discretion of the Regional Administrator.  It a



facility is on the National Priorities List, those additional



procedures for public participation contained in the National



Contingency Plan at 40 C.F.R. 300 et_ s eq. must be followed.



     6.  A flow chart of the 3008(h) corrective action process



indicating the points at which opportunities for public involve-



ment or notice will normally occur is attached.

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§3008(h) ADMINISTRATIVE HEARING PROCEDURES
      Procedures to develop Orders for Studies/Investigations
PREPARE
ADMIN.
RECORD


ISSUE
INITIAL
ORDER


RESPONDENT
REQUESTS
A HEARING
^-

HEARING
HELD
k.

FINAL
ORDER
V „


RFI/CMS
INITIATED



RFI/CMS
COMPLETED



EPA
DEVELOPS
JUSTIFICATION



PUBLIC
NOTICE
AND
COMMENT

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§3008(h) ADMINISTRATIVE HEARING PROCEDURES
        Procedures to develop Orders for Full Remedies
PREPARE
RESPONSIVENESS
SUMMARY FOR
ADMIN. RECORD
^

ISSUE INITIAL
ORDER FOR
CORRECTIVE
MEASURES
^

RESPONDENT
REQUESTS
A HEARING
^

RESPONDENT
SUBMITS
INTERROG-
ATORIES


HEARING
HELD
^

FINAL
ORDER
^

PUBLIC
NOTICE
fe

INITIATE
CORRECTIVE
MEASURES

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ADMINISTRATIVE HEARING PROCEDURES FOR RCRA SECTION 3008(h) ORDERS
                               I.
     1.  An administrative action under Section 3008(h) of the
Resource Conservation and Recovery Act (RCRA) shall be commenced
by issuance of an administrative order.  When the order is issued
unilaterally, the order shall be referred to as an initial admin-
istrative order and may be referenced as a proceeding under
Section 3008(h).  When the order has become effective, either
after  issuance of a final order following a final decision by the
Regional Administrator or after thirty days from issuance it no
hearing is requested, the order shall be referred to as a final
administrative order.  Where the order is agreed to by the parties,
the order shall be denominated as a final administrative order on
consent.
     2.  The initial administrative order shall be executed by
an authorized official of EPA (petitioner) , other than the Regional
Administrator or the Assistant Administrator for the Office of
Solid Waste and Emergency Response.  For orders issued by EPA
Headquarters, rather than by a Regional office, all references
in these procedures to the Regional Administrator shall be under-
stood  to be to the Assistant Administrator for the Office of
Solid Waste and Emergency Response or his delegatee.
     3.  A Clerk shall be designated by the Regional Administra-
tor to receive all initial orders, final orders, responses,
memoranda, and documents regarding the order and to maintain the
official record and docket.

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                            -2-
     4.  The original and one copy of the initial administrative
order, the final decision and the final administrative order,  and
one copy of the administrative record and an index thereto must
be filed with the Clerk designated for Section 3008(h) orders.
In addition, all memoranda and documents submitted in the proceed-
ing shall be filed with the Clerk.
     5.  The Clerk (or some other designated EPA employee) shall
arrange for the effectuation of service of the initial administra-
tive order, the final decision, and final administrative order.
Service of a copy of the initial administrative order together
with a copy of these procedures, the final decision,  or a final
administrative order, shall be made personally or by certified
mail,  return receipt requested, or, if personal service can not
be effectuated or certified mail is returned refused or unsigned,
by regular mail, on  the respondent or his representative.   The
Clerk  shall serve other documents from the Presiding Officer by
regular mail.
     6.  Service of  all documents, filed by the parties, shall
be made by the parties or their representatives on other parties
or their representatives and may be made by regular mail,  with
the original filed with the Clerk.
     7.  Service of  the initial administrative order and final
administrative order is complete upon receipt by respondent
(or the respondent's agent, attorney, representative or other
person employed by respondent and receiving such service),
personally or by certified mail, or upon mailing by regular
mail if personal service or certified mail can not be accom-
plished, in accordance with Paragraph 5.  Service of all other

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                              -3-
 pleadings  and documents  is  complete  upon  mailing,  except as
 provided in Paragraphs 15  and 25.
      8.   The initial administrative  order becomes  a final  admin-
 istrative  order  thirty (30)  days after  service  of  the order,
 unless the respondent files  with  the Clerk  within  thirty (30)
 days  after service  of the order, a response  to  the  initial order
 order and requests  a hearing.
      9.   The response to the initial order  and  request  for a hear-
 ing  must be in writing and  mailed  to, or  personally  served on,
 the  Clerk  of the Region  which issued the  order.
      10.  The response to the  initial order  shall  specify each
 factual, or legal determination, or  relief  provision in the
 initial  order the respondent disputes.
      11.  Upon receipt of  a.  request  for a hearing,  the  Regional
 Administrator shall designate  a Presiding Officer  to conduct the
.hearing  and preside over the proceedings.
      12.  The respondent may request an informal settlement con-
 ference  at any time by contacting  the appropriate  EPA employee,
 as specified in  the initial  administrative order.   A request for
 an  informal conference will  not affect  the  respondent's obligation
 to timely  request a hearing.
      Whether or  not the  respondent requests  a hearing,  the parties
 may  confer informally concerning any aspect  of  the  order.  The
 respondent and respondent's  representatives  shall  generally be
 allowed  the opportunity  at an  informal  conference  to discuss with
 the  appropriate  Agency technical  and legal  personnel all aspects

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                               -4-
of the order, in particular the basis for the determination that
a release has occurred and the appropriateness of the ordered
corrective action.
     13.  If the  initial order directs the respondent (a)  to
undertake only a RCRA Facility Investigation and/or Corrective
Measures Study,  which may include monitoring, surveys,  testing,
information gathering, analyses,  and/or studies (including studies
designed to develop recommendations for appropriate corrective
measures), or (b) to undertake such investigations and/or  studies
and interim measures, which are neither costly nor technically
complex and are necessary to protect human health and the  environ-
ment prior to development of a permanent  remedy,  the hearing
procedures set forth in Section II, A., Paragraphs 14 through 19,
shall be employed for any requested hearing.   If  the respondent
seeks a hearing on an order directing that corrective measures or
such corrective measures  together with studies be undertaken,  the
hearing procedures set forth in Section II,  B., Paragraphs 20
through 30,  shall be employed.  The procedures contained in
Section I, Paragraphs 1  through 13 and Section III,  Paragraphs 31
through 33 shall be followed regardless of whether the  initial
order directs respondent to undertake an investigation or  imple-
ment corrective measures.
                            II.
A. Hearings on Orders Requiring Investigations or Studies
     14.  The Presiding Officer shall be any employee of  the Agency
designated by the Regional Administrator  other than a person

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                              -5-

who drafted or participated in drafting the order in question.
     If, after issuance of the initial order and prior to issuance
of the final order, the Regional Administrator, Presiding Officer,
or any person who will advise these officials  in the decision on
the case receives from or on behalf of any party in an e_x parte
communication information which is relevant to the decision on
the case and to which other parties have not had an opportunity
to respond, a summary of such information shall be served on all
other parties, who shall have an opportunity to reply to  same
within ten (10) days of service of t"he summary.
     15.  The Presiding Officer shall establish the date  and time
for the requested public hearing.  Subject to Paragraph 16, the
hearing shall be scheduled and held within thirty (30) days of
the Agency's receipt of the request for a public hearing.
     At any time up to five (5) business days before the  hearing
respondent may, but is not required to, submit for inclusion in
the administrative record information and argument supporting
respondent's positions on the facts,  law, and relief, as each
relates to the order in question.  All factual reoresentations
made by respondent must be in writing by affidavit.  A copy of
any Information or argument submitted by respondent shall be
served such that the Clerk and petitioner receive sane at least
five (5) business days before hearing.
     16.  The Presiding Officer may grant an extension of tune
for the conduct of the hearing, upon written request of either
party, for good cause shown, and after consideration of any

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                              -6-

prejudice to other parties.  The Presiding Officer may not
extend the date by which the request for hearing is due under
paragraph 8.
     17.  The hearing shall be held in the city in which the
relevant EPA Regional Office is located, unless the Presiding
Officer determines that there is good cause to hold it in another
location.
     18.  The Presiding Officer shall establish the agenda for
the hearing and conduct the hearing in a fair and impartial way,
taking action as needed to avoid unnecessary delay, exclude
redundant material, and maintain order during the proceedings.
Representatives of EPA shall introduce the administrative record
and be prepared to summarize the basis for the order.   The
respondent shall have a reasonable opportunity to address relevant
issues and present its views through legal counsel or  technical
advisors.  The Presiding Officer may also allow technical and
legal discussions and interchanges between the parties, inducing
responses to questions to the extent deemed appropriate.  It is
not the Agency's intent to provide EPA or respondent an oppor-
tunity to engage in direct or cross examination of witnesses.
Where respondent can demonstrate that, through no fault of its
own, certain documents supportive of its position could not have
been submitted before hearing in accordance with the requirements
of Paragraph 15, it may submit such documents at hearing.  Other-
wise no new documentary support may be submitted at hearing.
Unless otherwise directed by the Presiding Officer, factual

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                             -7-

representacions made by respondent shall be in writing by
affidavit.  The Presiding Officer may upon request grant petitioner
leave to respond to submissions made by respondent pursuant  to
this paragraph or Paragraph 15.
     1.9.  As soon as practicable after the conclusion of the
hearing a written summary of the proceeding shall be prepared.
This summary shall, at a minimum, identify (a) the dates of  and
known attendees at the hearing, and (b) the bases upon which the
respondent contested the terms of the order.   The sunraary muse
be signed by the Presiding Officer.
     The Presiding Officer will evaluate the entire administrative
record and, on the basis of that review and the representations
of EPA and respondent at the hearing, shall prepare and file a
statement recommending to the Regional Administrator that the
initial order be modified,  withdrawn, or issued without modifica-
tion.  The statement must address all significant arguments
raised by respondent and provide support,  through citation to
material contained in the record or adduced at the hearing,  for
any decision to modify a term of the order, withdraw the order,
or issue the order without change.
    The statement shall be based on the administrative record,
including the hearing and supplemental submissions.  If the
Presiding Officer finds that there is not adequate support in
the record for the initial order, the Presiding Officer may
recommend that the order be modified and issued on terras that are
supported by the record, or withdrawn.

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                              -8-
B.  Hearings on Orders Requiring Corrective Measures
    20.  The Presiding Officer shall be either the Regional
Judicial Officer, or another attorney employed by the Agency who
has had no prior connection to the Section 3008(h) initial order
that is the subject of the proceeding.
     If, after issuance of the initial  order and prior to issuance
of the final order, the Regional Administrator, Presiding Officer,
or any person who will advise these officials in the decision on
the case receives from or on behalf of  any party in an ex parte
communication information which is relevant to the decision on the
case and to which other parties have not had an opportunity to
respond, a summary of such information  shall be served on all other
parties, who shall have an opportunity  to reply to same within
ten' (10) days of service of the summary..
     21.  The Presiding Officer shall establish an expeditious
schedule for:  (a) the submission by respondent of a memorandum,
with appropriate affidavits and exhibits, stating and supporting
respondent's position on the facts, law and relief, specifying
the bases upon and manner in which such determinations or relief
provisions, if erroneous, require modification or withdrawal of
the order;  (b) submission of a response by E?A;  and (c) a public
hearing.  Subject to paragraph 22., a hearing shall be scheduled
within 45 days of the order setting the schedule.
     22.  The Presiding Officer,  as appropriate, may grant an exten
sion of time for the filing of any document, other than a request
for a hearing under paragraph 8,  or may grant an extension of

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                            -9-
time for the conduct of the hearing, upon written request of



either party, for good cause shown and after consideration of any



prejudice to other parties.



     23.  In accordance with the schedule set by the Presiding



Officer, the respondent shall file a memorandum stating and



supporting respondent's position on the facts,  law and relief.



The memorandum must identify each factual allegation and all



issues regarding appropriateness of the terms of the relief in



the initial order that respondent contests and for which



respondent requests a hearing.  The memorandum must clearly state



respondent's position with respect to each such issue.  Respondent



must also include any proposals for modification of the order.



Respondent must submit affidavits and exhibits which support anv



of its factual contentions on relief and defenses.   The merfiorandutfi



shall also present any arguments on the legal conclusions con-



tained in the order.



     24.  The respondent may file a request with the Presiding



Officer for permission to submit written questions  to the EPA



Regional Office issuing the order concerning issues of material



fact in the order.  Requests shall be accompanied by the proposed



questions.  In most instances, no more than twenty-five (25)



questions, including subquestions and subparts, may be posed.



The request and questions must be submitted to the Presiding



Officer at least twenty-one (21) days before the hearing.



     The Presiding Officer may direct EPA to respond to such



questions as he designates, if he determines that such questions

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                             -10-
are required for full disclosure and adequate resolution of the
facts.  No questions shall be allowed regarding natters of poLicv
or privileged internal communications relating to the deliberative
process.  The Presiding Officer shall grant,  deny, or modify such
requests expeditiously.  If a request is granted, the Presiding
Officer may revise questions and may limit the number and scope of
questions.  Questions may be deleted or revised in the discretion
of the Presiding Officer for reasons, which may include the fact
that he finds the questions to be irrelevant, redundant,  un-
neccessary, or an undue burden on the Agency.  The Presiding
Officer shall transmit the questions as submitted or as modified
to EPA.  EPA shall respond to the questions within fourteen (14)
calendar days of service of the questions by  the Presiding
Officer, unless an extension is granted.
     25.  The Presiding Officer shall have the discretion to order
either party to submit additional information in whatever form he
deems appropriate.  The Presiding Officer may issue subpoenas for
the attendance and testimony of persons and the production of
relevant papers, books, and documents.   Since these hearing
procedures provide elsewhere that the parties are not to engage
in director cross examination of witnesses and must make any
factual representations in writing by affidavit, the subpoena
power is to serve only as an adjunct to the Presiding Officer's
authority to ask questions and otherwise take steps to clarify
factual matters which are in dispute.  Upon request of the
respondent, the Presiding Officer may,  in his discretion, allow

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                             -11 -
submittal by the respondent of additional information in support



of its claim, if it is received by the Clerk and petitioner at



least five (5) business days before the hearing.



     26.  The hearing shall be held in the city in which the



relevant EPA Regional Office is located, unless the Presiding



Officer determines that there is good cause to hold it in



another location.



     27.  The Presiding Officer shall conduct the hearing.  The



Presiding Officer shall conduct a fair and impartial hearing,



take action to avoid unnecessary delay in the disposition of the



proceedings,  and maintain order.  The Presiding Officer shall



permit oral statements on behalf of the respondent and EPA.  The



Presiding Officer may address questions to the respondent or the



EPA representative^ during the hearing.  Although oral statements



will be permitted at the hearing, unless otherwise directed by



the Presiding Officer, all factual matters to be presented by



respondent must be in writing by affidavit.  Apart from questions



by the Presiding Officer, no direct examination or cross-examina-



tion shall be allowed.



     Upon commencement of the hearing, a representative of EPA



shall introduce the order and the record supporting issuance of



the order, and summarize the basis for the order.  The respondent



may respond to the administrative record and offer any facts,



statements, explanations or documents which bear on any issue tor



which the hearing has been requested.  Any such presentation by



respondent may include new documents only to the extent that

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                               -12-
respondent can demonstrate that, through no fault of its own,
such documents could not have been submitted before hearing in
accordance with the requirements of Paragraphs 23 and 25.  The
Agency may then present matters solely in rebuttal to matters
previously presented by the respondent.  The Presiding Officer
may allow the respondent to respond to any such rebuttal submitted.
The Presiding Officer may exclude repetitive or irrelevant matter.
The Presiding Officer may upon request grant petitioner leave to
respond to submissions made by respondent pursuant to this paragraph
or Paragraph 25.
     28.  The hearing shall be either transcribed stenographic-
ically or tape recorded.  Upon written request, such transcript
or tape recording shall be made available for inspection or
copying.
     29.  The transcript or recording of the hearing and all
written submittals filed with the Clerk by the parties subsequent
to initial issuance of the order including post-hearing sub-
missions will become part of the administrative record for the
proceeding,  for consideration by the Presiding Officer and Regional
Administrator.
     30.  The Presiding Officer will, as soon as practicable after
the conclusion of the hearing, evaluate the entire administrative
record and,  on the basis of the administrative record, prepare
and file a recommended decision with the Regional Administrator.
     The recommended decision must address all material issues of
fact or law properly raised by respondent, and must recommend that
the order be modified, withdrawn or issued without modification.

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                               -13-






The recommended decision must provide an explanation, with



citation to material contained in the record, for any decision to



modify a term of the order, to issue the order without change or



to withdraw the order.



     The recommended decision shall be based on the administrative



record.  If the Presiding Officer finds that there is not adequate



support in the record for any contested required action,  the



Presiding Officer may recommend that the order be modified and



issued on terms that are supported by the record, or withdrawn.






                             Ill





     31.  As soon as practicable after receipt of either the



summary and statement or the recommended decision, the Regional



Administrator will either sign, or modify such statement or



recommended decision; and issue it as a final decision.  The



Regional Administrator's decision shall be based on the admin-



istrative record.



     32.  If the Regional Administrator does not adopt portions



of the initial order, or finds that modification of the order is



necessary, the signatory official on the initial administrative



order shall modify the order in accordance with the terms of the



final decision and file and serve a copy of the final administra-



tive order.  If the Regional Administrator finds the initial



order appropriate as originally issued, the final decision shall



declare the initial administrative order to be a final order,



effective upon service of the final decision.  If the Regional



Administrator declares that the initial order must be withdrawn,

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                                -14-
the signatory official on the initial administrative order will
file and serve a withdrawal of the initial administrative order.
This may be done without-prejudice.
     33.  The final decision and the final administrative order
are final agency actions that are effective on filing and service.
These actions are not appealable to the Administrator.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460               990 1 . 3
                             MAY   5 1987
                                                          OFFICE OF
                                                 SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:   Guidance for Public Involvement In RCRA
           Section 300,8 Qi) Actions
                '      '
                    .
FROM:      J. Winstc-'n Porter
           Assistant Administrator

TO:        ADDRESSEES


     EPA is committed to providing meaningful opportunity to the
public to be informed of and participate in decisions that affect
them and their communities.  This memorandum provides guidance
on public involvement actions taken under Section 3008 (h) of the
Resource Conservation and Recovery Act (RCRA).

     It is highly likely that corrective action activities, which
differ from normal operations at a facility, will generate
public concern.  The nature of the problem and the visibility of
corrective action activities are two reasons for EPA to involve
the public during the corrective action process.  If the public
is informed early, and allowed to be involved in the decision-
making, it is less likely that there will be opposition to the
decisions that are made.  Also, valuable information can be
obtained from concerned citizens who may know the site and facility's
history.

     Section 3008(h), the interim status corrective action authority,
allows EPA to take enforcement action to require clean-up at a
RCRA interim status facility when the Agency has information
that there has been a release of hazardous waste or hazardous
constituents.  We anticipate that the cleanup program under
Section 3008 (h) will frequently be implemented with two orders.
The first order would require the owner or operator to conduct a
study to characterize the nature and extent of contamination,
and to develop a remedy or alternative remedies as needed.  Once
a remedy has been selected, a second order would require design,
construction, and implementation of that remedy.

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                               -2-                        9901.3


MINIMUM PUBLIC INVOLVEMENT REQUIREMENTS

     Although there will be many situations where much additional
public involvement will be necessary, I would like to emphasize
that there are minimun requirements for all 3008(h) orders,
whether on consent or unilateral.  Following the respondent's
submission of its report on the RCRA Facility Investigation and
Corrective Measures Study, the Agency will develop a proposed plan
for corrective measures,  or make the decision that no corrective
measures are necessary.  The Agency shall then (1) publish a
notice and brief analysis of the proposed plan for corrective
measures, or of its decision that no corrective measures
are necessary, and make such information available to the public,
and (2) provide a reasonable opportunity (ordinarily 30-45 days)
for submission of written comments and,  if the Regional Administrator
deems it appropriate, a public meeting on the plan.  If the
Regional Administrator denies a request for a public meeting, he
shall explain his decision in writing.

     The Agency shall, as necessary,  modify its proposed plan for
corrective measures on the basis of written and oral comments
received.  Prior to issuance of the initial order for corrective
measures the Agency shall prepare a responsiveness summary indicating
whether and why it has accepted or rejected any significant
comments.  Following finalization of the order for corrective
measures but before implementation of corrective measures, notice
of the final plan for corrective measures shall be published and
the plan shall be made available to the public.

     Where, in the interest of protecting human health and the
environment,  it is important that interim corrective measures be
implemented quickly,  the  public will have no advance opportunity
for written or oral comments.   Here,  EPA will simply provide
substantially contemporaneous notice to the public of interim
measures being implemented.

EXPANDED PUBLIC INVOLVEMENT MAY BE NECESSARY

     The degree of public involvement in a corrective action program
will be determined by the amount of public interest in the site,
the actual or potential hazard to human health or the environment
and the type of clean-up  action that will be undertaken.   In
general,  if the Agency has identified releases and determined
that they require investigation,  the public should be informed
that studies are underway.   The Region may also want to hold
additional public meetings if there is a lot of interest in the
facility.  The public should be made  aware of significant technical
issues at the site.   There will be occasions where affected
citizens can make valuable contributions to remedy selection
through participation in  technical discussions with owners or
operators and government  representatives.

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                                                           9901.3
     We strongly urge the use of a public involvement plan for
sites in which there is likely to be significant public interest.
At appropriate points during the process, fact sheets can be
developed that should both inform the public and allay fears
that could surface if no substantive knowledge were made available.
A public involvement plan tailored to each site can also be very
helpful.  You may refer to Community Relations in Superfund;
A Handbook March 1936, and Public Involvement Guidance in the
Permitting Program, March 1986,Directive 9500.01,for further
information on public involvement techniques and process.  The
regional RCRA public involvement coordinator can also offer
valuable information and assistance.

     There are limitations on the release or discussion of certain
information during the §3008(h) enforcement process.   This is
especially true during negotiations.   The confidentiality of
statements made during the course of negotiations must be maintained.
Our goal during negotiations is to encourage frank discussion of
all issues,  and try to resolve differences.   Public disclosure
of this information would jeopardize the success of the negotiations.
Disclosures of strengths and weaknesses of a case, information
that is privileged and protected under the law, enforcement
strategy and timing would also jeopardize the government's enforce-
ment position.  If a case is referred to the Department of Justice
to initiate litigation,  further constraints may be placed upon
public involvement.  In this situation, the scope of public
involvement .should be discussed with the lead DOJ attorney.

     Coordination among EPA and/or State personnel is very important.
At some sites, RCRA Permits and Enforcement Personnel and Superfund
will be involved, and a coordinated approach will serve the
Agency and the public best.   In order to establish a network
whereby information can be exchanged, I would like each region
to appoint a coordinator for public involvement in §3008(h)
orders.  This person may be from either your public involvement
or enforcement staffs.  Please call Jackie Tenusak of my staff
at FTS 475-8729 with the name of your contact.

     Thank you for your attention to this matter.   Please do not
hesitate to call me,  or any of our public involvement staff,  if
you have questions.

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                               -4-
ADDRESSEES

Regional Hazardous Waste Management Division Directors,
Regions I-X

RCRA Enforcement Section Chiefs
Regions I-X

RCRA Enforcement Branch  Chiefs
Regions I-X

Public Involvement/Community Relations Coordinators
Regions I-X

cc:  Pamela Garrow, OWPE
     Olga Corey,  OWPE
     Vanessa Musgrave, OSW
     Melissa Friedland,  OERR
9901.3

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                      PUBLIC INVOLVEMENT IN CORRECTIVE ACTION
         RCRA
      PERMITTING
                        RCRA
                   ENFORCEMENT
                                          CERCLA
     Conduct Field
     Assessment

     Public
     Involvement Plan
        Mailing List
     Public Notice

     Public Comment
     Period

     Public Hearing, if
     requested

     Fact Sheet
  RCRA FACILITY
  ASSESSMENT

    RFA
» DRAFT PERMIT!
Conduct Field
Assessment

Public Involvement
Plan

Public Meetings
                     PRELIMINARY
                    ASSESSMENT/
                       SITE
                    INVESTIGATION

                       PA/SI
* Public Comment
  Period on the
  Proposed NPL

* Community Interviews

* Community Relations
  Plan

* Information Repository

. Fact Sheets

. Public Meetings
*   Required
    Suggested
-^  Refers to Permits only

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               PUBLIC INVOLVEMENT IN CORRECTIVE ACTION
    RCRA
 PERMITTING
    RCRA
ENFORCEMENT
   CERCLA
  Fact Sheets

  Public Meetings
                 RCRA FACILITY
                 INVESTIGATION


                    RFI
   Fact Sheets

   Public Meetings
                     REMEDIAL
                   INVESTIGATION
                       Rl
Progress meetings

Fact sheets
Suggested

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                  PUBLIC INVOLVEMENT IN CORRECTIVE ACTION
     RCRA
  PERMITTING
     RCRA
ENFORCEMENT
                      CERCLA
Public Notice

Public Comment
Period

Public Hearing, if
requested
Notice of Decision

Response to
Comments
                     CORRECTIVE
                     MEASURES
                      STUDY

                      CMS
;  Draft Permit  J
j  Modification  J
                     CORRECTIVE
                     MEASURES
                   IMPLEMENTATION
                       CMI
 Required
 Suggested
 Refers to Permits only
Agency Issue
Notice/Analysis of
Proposed Corrective
Measures Plan

Public Comment
Period

Responsiveness
Summary

Notice Final Plan for
Corrective Measure
Fact Sheets

Public Meetings
                      FEASIBILITY
                       STUDY

                         FS
   1
 REMEDY
SELECTION
                    REMEDIAL DESIGN/
                    REMEDIAL ACTION
 RD/RA
                                                          Public Comment Period
                                                           - On the RI/FS Report
                                                           - On Consent Decrees

                                                          Public Meeting
                                                          Revised Community
                                                          Relations Plan

                                                           -  Fact Sheets
                                                           -  Meetings

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          PUBLIC INVOLVEMENT IN RCRA §3008(h)
         RCRA FACILITY
         ASSESSMENT

            RFA
         RCRA FACILITY
         INVESTIGATION

             RFI
             I
          CORRECTIVE
          MEASURES
            STUDY

            CMS
              1
          CORRECTIVE
          MEASURES
        IMPLEMENTATION
             CMI
Required
Suggested
                                          Conduct  Field
                                          Assessment

                                          Public Involvement
                                          Plan

                                          Public Meetings
  Fact Sheets

  Public Meetings
* Agency Issue
  Notice/Analysis of
  Proposed Corrective
  Measures Plan

* Public Comment
  Period

* Responsiveness
  Summary

* Notice Final Plan for
  Corrective Measure
.  Fact Sheets

.  Public Meetings

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                              ovc.N
                             500 . DO - \
GUIDANCE ON PUBLIC  INVOLVEMENT IN  THE

       RCRA PERMITTING PROGRAM
         Office of Solid Waste

  U.S.  Environmental Protection Agency
             January 1986

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                            CONTENTS



Chapter                                                               Page

   1.  Introduction	   1

   2.  Policy and Guidelines for Public  Involvement	   2

   3.  Key Activities During the Permitting Process	  12

   4.  Techniques for Conducting Public  Involvement Activities	  19

   5 .  Special Issues	  47

       5.1  Public Involvement in Exposure Assessments [reserved]

       5.2  Public Involvement in Incinerator Certification
            [reserved]

       5.3  Public Involvement in Corrective Action [reserved]

       5.4  Public Involvement in.Siting New Facilities [reserved]



   Appendix A:  Format for Public Involvement Work Plans

   Appendix B:  Samples of Written Materials and Publications

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                                 PREFACE
    This guidance document was developed by the Office of Solid Waste with
support from IGF Incorporated under Contract No. 68-01-6861.   It is intended
to assist the EPA regional offices and state agencies in expanding public
involvement in RCRA permitting, as suggested in EPA's National Permits
Strategy.

    This guidance document incorporates strategies and techniques previously
developed for and already used by EPA.  It includes excerpts  or adaptations
from the following documents:

Community Relations in Superfund:  A Handbook.   Prepared by IGF Incorporated
for the U.S. EPA.  September 1983.

EPA and the Public:  A Handbook on Public Participation Concepts and Skills.
    Barry Lawson Associates, Inc.  1981.

"Responsiveness Summary and Preamble on Public Participation  Policy,"
    Vol. 46, Federal Register, No. 12.  1981.

How to Write a Public Notice:  A Collection of Examples.  Barry H. Jordan.
    U.S. EPA Water Programs Operations.  December 1979.

Implementation of the Resource Conservation and Recovery Act,  U.S. EPA,
    No. EPA/530-SW-84-007.  1984.

Citizen Participation Handbook for Public Officials and Other Professionals
    Serving the Public.  Annemarie and Hans Bleiker.   1981.

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                         1.   INTRODUCTION
    This guidance has been prepared for staff in U.S. Environmental Protection
Agency (EPA) regional offices and in authorized states to facilitate public
involvement in the permitting of hazardous waste management facilities under
the Resource Conservation and Recovery Act (RCRA).   It outlines a basic
approach to involving the local community in decision-making on a facility's
permit, and identifies a series of key activities that should be conducted
during the permitting process.  The emphasis is on explaining how to plan and
organize public involvement efforts.  Suggested techniques for issuing public
notices, holding meetings, responding to comments,  and performing similar
activities are also explained.

    This guidance reflects EPA policy as stated in the National Permits
Strategy (August 1984).  It incorporates public participation requirements in
RCRA section 7004(b)(l) and in EPA regulations on procedures for decision-
making in 40 CFR Part 124, Subpart A.

    The organization of this guidance is as follows.  Chapter 2 presents EPA's
policy and general guidelines for public involvement in RCRA permitting.
Chapter 3 suggests activities for particular points in the permitting process
to aid in planning, designing, and organizing a public involvement effort for
a facility.  Chapter 4 is a "how to" presentation.   It consists of discussions
of typical public involvement activities, with explanations of techniques for
preparing and conducting these activities in the context of hazardous waste
management facility permitting.  Chapter 5 (reserved) addresses special issues
that may require particular attention in planning a public involvement
effort.  There are two appendices.  Appendix A provides a format for the plans
to be used to help prepare public involvement efforts, and Appendix B provides
samples of materials for public distribution.

    For further information on this guidance, contact Vanessa Musgrave in the
Office of Solid Waste at (202) 382-4751.

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                                   -2-
          2.  POLICY AND  GUIDELINES  FOR  PUBLIC INVOLVEMENT
    Public involvement in the permitting of hazardous waste treatment,
storage, and disposal facilities provides an opportunity for all  potentially
affected and interested parties to become informed about and involved in the
permitting process.  Whether the final determination is to issue  or deny a
permit, public involvement ensures that decision-makers are better informed.
Early public involvement can provide decision-makers with advance notice of
citizens' concerns.  It can also provide valuable information and ideas  for
consideration in developing environmentally protective permit conditions.   The
result will be permits better matched to particular facilities and their
respective communities, and which will ultimately serve more effectively as a
basis for sound hazardous waste management practices.  Indeed, an active and
early public involvement program may reduce delays in the permit  process by
decreasing the likelihood of time-consuming and expensive litigation by
parties whose concerns have not been heard or addressed.

    Accordingly, EPA's National Permits Strategy assigns high priority to
early and expanded public involvement in facility permitting under RCRA.  This
guidance has been developed by the Permits Branch of EPA's Office of Solid
Waste to support the implementation of an early and expanded public
involvement program.  The guidelines' it offers are presented pursuant to the
National Permits Strategy and to the public participation provisions of  RCRA
section 7004 and EPA regulations in 40 CFR Part 124.  It has been prepared for
use both by the EPA regional offices and by states authorized to  issue RCRA
permits.

    This chapter of the guidance document is a policy statement that outlines
the objectives of public involvement in the permitting program and offers
basic guidelines for ensuring opportunities for the public to participate.
Chapter 3 explains how to integrate public involvement with decision-making on
a facility permit.

2.1  OBJECTIVES  AND RATIONALE

    The objectives of encouraging public involvement in RCRA permitting  are as
follows:

        •   Create early and continuing opportunities for public
            participation in RCRA permitting activities.

        •   Ensure public understanding of the RCRA program and of the
            implications of not awarding a final RCRA permit to a
            facility.

        •   Obtain the public's input to assist in evaluating a
            permit's environmental soundness.

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                                   -3-
        •   Create equal and open access to the permitting process.

        •   Ensure agency understanding of and responsiveness  to
            public concerns.

        •   Anticipate conflicts and provide early means  for
            resolution.

        •   Foster trust and openness between EPA or the  state and the
            public.

        •   Emphasize the responsibilities of agency and  program
            management for promoting effective public involvement in
            decis ion-making.

2.2  SCOPE OF APPLICABILITY  OF PUBLIC  INVOLVEMENT PROGRAM

    The National Permits Strategy establishes as a key priority of the  RCRA
program the focusing of permitting and enforcement resources on
environmentally significant facilities.   While some of these facilities may
also be significant  in terms of public interest and concern, others  may not.
Because resources for expanded public involvement activities should  be
concentrated on the  facilities that generate the most public concern, all
environmentally significant facilities should be seriously considered,  but not
automatically targetted, for expanded public involvement.

    The National Permits Strategy specifies the following criteria,  in
summary, for an environmentally significant facility:

        •   The facility is a recipient of wastes from a  Superfund
            site;

        •   The facility has caused environmental damage,  violated
            environmental standards, or disregarded RCRA  regulations;

        •   The facility is a suspected source of ground  or
            surface  water contamination; or

        •   The facility poses significant environmental  risk,
            based on proximity to population centers or ground or
            surface  water; size;  amount, nature, or complexity of
            wastes;  and age.

    The highest-priority environmentally significant facilities for  expanded
public involvement -- which will be referred to as "targetted  facilities"
throughout this guidance manual -- are further clarified  as the following:

        (1) All existing, environmentally significant, commercial
            hazardous waste treatment/storage/disposal/incineration
            facilities.

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                                   -4-
        (2) All existing hazardous waste treatment/storage/disposal
            facilities about which significant public interest or
            concern has already been expressed, or about which
            significant public interest can reasonably be
            anticipated.

Predicting which facilities will generate significant public interest is not
always possible.  However, a number of factors have been shown to be typically
associated with significant public interest or concern.  In order to target
facilities for public involvement efforts, an attempt should be made to
discover if any of the following situations exist for a facility:

        •   The owner or operator lacks credibility with, or the
            trust of, the public or local officials;

        •   The permit allows the transportation of Superfund
            hazardous wastes to or from the facility;

        •   The public perceives.that the facility poses major'
            health risks;

        •   The type of technology proposed in the permit (e.g.,
            incineration, underground injection, landfill, etc.) has
            a negative reputation in that particular area;

        •   Facility non-compliance or violations have been highly
            publicized or will be made known by the permit process
            (in general, the more serious the continuing
            non-compliance, the more public interest likely to be
            generated);

        •   The facility has been or will likely become an
            election issue; or

        •   Major hazardous substance releases or accidents have
            been recently publicized in the area.

Public involvement efforts are also very important in the siting of new
facilities or the expansion of existing facilities.  The local public may have
special concerns about proposals for a new waste management facility in the
community.  Moreover, new incineration and treatment facilities offer
alternatives to land disposal of hazardous wastes.  Thus, a third type of
targetted facility for public involvement efforts is the following:

        (3) All proposed (not yet sited, constructed, or permitted)
            treatment or incineration facilities, both at new sites
            and as additions to existing sites.

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2.3  GUIDELINES

    The following guidelines should be considered in planning for public
involvement in the RCRA permitting program and in conducting the activities
described in Section 2.6 and Chapter 3:

        •   Public involvement efforts should be tailored to the
            distinctive issues and individual features of the facility
            and the surrounding community.

        •   The applicant and other responsible government agencies
            should have a role in public involvement efforts, especially
            to help .clarify or resolve issues that may be related to the
            permit but are not or cannot be appropriately addressed by
            the RCRA permit process.

        •   Small-scale, low-profile, informal communications
            techniques are preferred.  Public meetings may be held in
            informal settings, before small audiences, without elaborate
            presentations (e.g., in living rooms).  They need not be
            conducted by high-level staff.

        •   In general, public involvement actions should extend
            beyond providing information to the public; they should
            actively reach out to the public, encourage participation,
            and provide an opportunity for public input on. permit
            decisions made by EPA or the state.

2.4  KEY AREAS OF PUBLIC  INTEREST

    Because of certain provisions in the 1984 RCRA amendments, and the debate
over enactment of those amendments, public interest in the RCRA permitting
program has broadened and public involvement in the program will become more
complex.  The following issues, in particular, are likely to be of special
concern.

    1.  Groundwater protection.  There have been reports of widespread
failure to comply with RCRA's groundwater protection requirements.  The
removal of wastes from Superfund sites to RCRA facilities has intensified
concern over the possibility of groundwater contamination and its effects on
human health.

    2.  Protective standards and enforcement for operating units.  Public
interest is already strong on the question of whether RCRA's design standards
and operating specifications (e.g., landfill liner requirements) are strong
enough and are being met.  Citizens may not be aware of new RCRA standards.
They may also question the federal or state agency's ability to adequately
monitor permit requirements.

    3.  Exposure assessments and ATSDR referrals.  Section 247 of the 1984
RCRA amendments requires each final permit application for a landfill or

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                                   -6-
surface impoundment to be accompanied by information on the potential for the
public to be exposed to hazardous constituents through releases from the
facility.   There may be considerable local interest in this information.  It
is anticipated that referrals to the Agency for Toxic Substances and Disease
Registry (ATSDR) will also be of concern to the public.

    4.  Corrective action.  Significant public interest can be expected in
all facets of corrective action requirements.   Have releases occurred from a
facility?   Have any releases been cleaned up?   Will corrective action be
sufficient to prevent future releases?  What kinds of investigations will be
conducted to determine the need for corrective action?

    5.  Permit process itself.  The length of  time involved in issuing a
permit as  well as the adequacy of public involvement opportunities are
examples of issues related to the permit process (as opposed to the contents
of permits) that may be of public concern.  When joint EPA/state RCRA
permitting is conducted, the public may also have difficulty understanding the
coordination process and the differences between federal and state
requirements.

    6.  Transportation of hazardous wastes.  Many times the public's
strongest  concern centers on hazardous wastes  being transported to or from a
facility.   The common nature of traffic accidents and the proximity of
transportation routes to homes and schools heighten the public's concern over
releases during transportation.  Often, though, the sheer volume of traffic
and the associated noise and congestion are of even greater concern.

    7.  Evacuation plans.  The very existence  of evacuation plans implies
that accidents can and will occur.  Beyond the concern raised by that
implication, the public has shown interest in  the adequacy of evacuation
plans.  Who will be evacuated?  How will they  be notified?  Who pays for
alternative living arrangements?

    8.  Fire and explosion emergency plans.  Like evacuation plans, these
contingency plans acknowledge the potential for threats to the public's safety
and undercut assurances that such occurrences  are unlikely.  The public is
interested in the probability that fire and explosions will occur and the
precautions being taken to prevent or reduce their danger.  If local police
and fire units are involved, the public may also be concerned over who pays
for emergency responses, and whether or not local fire departments are
adequately equipped or trained to respond.

    9.  Omnibus provision.  Section 212 of the 1984 RCRA amendments states  •
that "each permit...shall contain such terms and conditions as the
Administrator (or the State) determines necessary to protect human health and
the environment."  The public may be inclined to read great flexibility into
this provision.

    10.  Consequences of permit denial.  Whether an operating permit is
approved or denied, the conse.quences will be of interest to the public.
Economic impacts on employment, property values, and the local tax base are

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all likely to generate concern.  Denial may lead to special concerns because
the public may not at first appreciate its environmental implications.
Denying a permit for incineration, for example, might mean that the applicant
has to continue to landfill wastes.

    To derive full benefit from expanded public involvement, it is important
to ensure the members of the community in which the facility is located the
opportunity to provide input on permit conditions as early as possible
before the draft permit has been  written.  For example, the  local public
should be enabled to comment on conditions requiring corrective action.  If
there is no opportunity for public input before the draft permit has been
prepared, it may be impossible to provide the local public a meaningful voice
in decision-making on the permit.   While the public may comment on and provide
input to the development of permit conditions, however, the final decision on
permit conditions and on whether to issue or deny a permit rests with EPA or
authorized states.

2.5  ROLES AND  RESPONSIBILITIES

    Each EPA regional office, and each state authorized to issue final
permits, should designate someone on its staff as the RCRA permitting program
public involvement coordinator.  The coordinator will work with permit
writers, enforcement personnel (both EPA and state), facility owner/operators,
and other appropriate individuals or groups to implement public involvement
activities, and will also serve as liaison to the Office of Solid Waste and
the Administrator's office in the event of a permit appeal.

    The RCRA public involvement effort should be viewed as a team effort.  In
certain instances, particularly during the field assessment (as explained in
Sections 2.6 and 3.1) and development of the public involvement work plan for
specific facilities, a contractor may also become part of the team.

    It is anticipated that the roles and responsibilities of the various
members of the public involvement team will vary depending on the region or
state and individual permit circumstances.  While it is not necessary that the
following functions and activities be carried out in all cases by the
individuals indicated, in general the responsibilities of each team member
include (but'are not necessarily limited to) the following:

    Public Involvement Coordinator

        (a) Identify potentially affected, concerned, or interested members of
            the community, including local and state officials and the local
            media.
        (b) Develop public involvement plan and evaluate progress of public
            involvement activities.  Update plan upon final determination of
            permit.
        (c) Initiate and maintain lines of communication between the agency
            and the public.
        (d) Identify the need for and develop educational and informational
            materials; take lead in other outreach activities regarding the
            RCRA permit process in general.

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        (e) Depending on the level of technical detail involved, lead or
            participate in dialogue activities regarding development of permit
            conditions to address citizen concerns.
        (f) Coordinate public involvement activities with other programs and
            agencies.
        (g) Provide feedback and reporting within the agency on public
            involvement.

    Permit Writer and Other  Technical  Staff

        (a) Participate in or take the lead in dialogue activities with public
            and owner/operator, including detailed discussion or negotiations
            on specific permit conditions on facility operations.
        (b) Respond to, or provide the public involvement coordinator with
            information sufficient to respond to, the public's or
            owner/operator's specific technical questions related to the
            facility and its operation.
        (c) Establish and maintain close communication with the public
            involvement coordinator relative to all aspects of permit
            development to ensure coordinated and consistent communications
            with the public.

    Enforcement Personnel

        (a) Participate in or take the lead in dialogue activities with the
            public and owner/operator regarding enforcement/compliance
            activities being developed for the facility.
        (b) Respond to, or provide the public involvement coordinator with
            information sufficient to respond to, public and owner/operator
            questions and concerns regarding the facility's past and present
            compliance record.
        (c) Establish and maintain close communications with the public
            involvement coordinator relative to all aspects of enforcement and
            compliance and corrective actions activities developed for the
            facility.

    If a state is authorized or operates under a cooperative agreement with
EPA, the above responsibilities can be assumed by state personnel.  In
unauthorized states, state agencies can still serve a supportive role by
providing the regional public involvement coordinator with information, such
as names for inclusion on a mailing list or background information on a
facility's history and community attitudes towards the facility, and by
coordinating state requirements on~permits, public involvement, and
administrative procedures.  Regardless of the level of authorization, states
should be encouraged to play an active role in expanded public involvement
efforts.

    During the same time that EPA or an authorized state is conducting public
involvement activities at a facility, it is not uncommon for the
owner/operator to initiate public outreach efforts of his own.  Attempts by
the owner/operator to inform and involve the public should be encouraged by

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                                   -9-
the public involvement coordinator.  For example, the owner Operator could
conduct facility tours or hold public meetings.   Owners or operators who do
not initiate public involvement activities should be made aware of their
responsibility to inform the public.

    It is appropriate, in some instances, for EPA or state staff to
participate in activities in which the owner/operator has taken the lead.   At
a public meeting held by the owner/operator, for instance, EPA or state staff
could deliver a presentation on design and operating standards for that type
of facility.  In so doing, however, it is essential to distinguish EPA's (or
the state's) cooperation with owner/operator educational efforts from support
for public relations efforts aimed at gaining community support for the
facility's permit.  The regulatory role of EPA (or the state) must be clearly
defined for the public and distinguished from the owner/operator's interests,
regardless of whether the agency's involvement in owner/operator activities is
to observe, participate, mediate, or simply to receive a report.

    There may also be instances in which the owner or operator may contribute
to public involvement efforts conducted by EPA or the state (although state
requirements may preclude owner/operator participation in some activities.)
For example, the owner/operator could be invited to provide panelists for
discussion forums or participate in dialogue activities sponsored by the
agency.  Care should be taken, however, to ensure that the owner/operator's
participation is constructive, coordinated with EPA's efforts, and supportive
of EPA's policy for the RCRA permitting program as much as possible.  The
public, as well as the owner/operator, should recognize that decisions on
permitting a wasce management facility are made by EPA (or authorized states)
on the basis of RCRA's mandate to protect human health and the environment,
not on the basis of the owner/operator's interests.

    There will be times when the owner/operator conducts public involvement
activities separately from EPA or the state.  The public involvement
coordinator will need to be cognizant of these activities, because they will
provide the public with information that may influence opinions.  Conversely,
the public involvement coordinator should inform the owner/operator of the
public involvement program that the agency intends to conduct during the
facility's permit process.  Optimally, the efforts of the owner/operator and
EPA (or the state) should complement each other without compromising the
integrity of the agency's regulatory role.

2.6  CRITICAL ELEMENTS

    The specific suggestions for public involvement in the RCRA permitting
program have been kept to a minimum to provide the flexibility to adjust
public involvement efforts to the extent of public interest, the environmental
significance of the facility, and the status of the permit application.
Because the intended result of this policy is for public involvement to
facilitate the ability of EPA or the state to process permit applications, the
activities included in each specific public involvement effort should be
tailored to the particular needs of the community and facility.

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                                   -10-
    Th e following, however, are three critical elements for public involvement
in the RCRA permitting program for targetted facilities (as defined in Section
2.2 above).

    (1) Field Assessment.  A field assessment should be conducted for each
targetted facility by the public involvement coordinator (or other appropriate
EPA or state staff, or a contractor) for the following purposes:

        •   To identify major community concerns regarding the
            facility;

        •   To identify the citizens, officials, and groups in the
            area who are especially interested in the facility and
            should be kept apprised of developments;

        •   To identify the best means to provide information to
            the public and, in return, to obtain public comment and
            input.

As explained in Chapters 3 and 4 below, the field assessment consists
primarily of interviews in the local community with key citizens, officials,
and other interested parties.

    (2) Public Involvement Plan.  Based on the field assessment, a public
involvement plan detailing appropriate 'public involvement activities keyed to •
milestones in the RCRA permit process should be developed.  This plan
indicates the actions EPA or the state will take to facilitate public
involvement in the decision-making process for the permit based on the
interests and concerns of the public and the best channels for communicating
with the local public, as identified in the field assessment.  The plan should
be a concise document that identifies the distinctive features of a facility
and a community relevant to public involvement efforts and the key public
involvement activities that need to be undertaken.

    (3) Public Involvement Activities.  Public involvement activities will
vary by facility and by the stage in the permitting process at which public
involvement efforts are initiated.  The following types of activities,
however, will be necessary in each instance:

        (a) Outreach activities, such as informal informational
            briefings and meetings, including the public notice of
            the draft permit and attendant requirements under RCRA
            section 7004 and 40 CFR 124 Subpart A;

        (b) Dialogue and assimilation activities, such as work
            sessions, public meetings, and public hearings (if
            appropriate);

        (c) Response activities, including informal responses to
            questions, concerns, and requests from the public during
            the permit process as well as formal, final
            responsiveness summaries.

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                                   -11-
    Th e next chapter of this guidance document explains how such activities
may be scheduled and integrated with technical milestones in the typical
permitting process for a facility.

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                                   -12-
          3.  KEY ACTIVITIES  DURING THE PERMITTING  PROCESS
    This chapter explains how to structure and schedule  a  public  involvement
effort for a typical targetted facility in accordance  with the  policy outlined
in Chapter 2.  It recommends key public involvement  activities  and  indicates
when, in relation to technical milestones  in the  permitting process, such
activities could be conducted.  Also discussed are the first two  critical
elements in the public involvement effort  -- the  field assessment and the
preparation of a public involvement plan -- and the  time at which these
actions should be conducted.

    It should be emphasized that public involvement  efforts should  be tailored
to the specific circumstances of a facility and the  specific needs  of a
community.  Thus, the sequence of activities described here is  solely
illustrative.  Public involvement coordinators have  the  flexibility to choose
whichever activities are best in each instance, varying  the sequence of
activities outlined in this chapter, or adding other activities,  depending on
circumstances.  If the draft permit has already been prepared,  public
involvement efforts will of necessity be more limited.   Even when there  is
insufficient time to conduct a formal field assessment,  however,  an attempt
should be made to identify key members of  the community  and their concerns
through telephone calls or some other means.

    It should also be noted, however, that some of the activities discussed in
this chapter are regulatory requirements.   These  requirements are indicated in
the text.

    In general, preference should be given to small-scale,  low-profile,
informal activities rather than large-scale, formal  activities.   For example,
face-to-face discussions with a small group of community members  in someone's
living room are preferred to a public meeting with presentations  before  a
large audience.  The more personal the activity,  the greater the  likelihood of
mutual communication between government staff and the  community.

    The four subsequent sections of this chapter  correspond to  four milestones
in the typical permitting process.  Exhibit 3-1 summarizes these  milestones
and the activities recommended in the text.

3.1  PUBLIC  INVOLVEMENT FOLLOWING SUBMISSION  OF  THE
     PERMIT  APPLICATION

    (a) One of the first actions to be taken to facilitate public involvement
is to conduct a field assessment.   If possible, in fact, the  field
assessment should be conducted prior to the submission of  the permit
application.  The field assessment is a critical  element under  EPA's policy
for public involvement in the RCRA permitting program.   It consists of
interviews by the public involvement coordinator  (or other appropriate EPA or
state staff, or a contractor) with several local  citizens,  members  of
community organizations, and officials for the following purposes:

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                                   -13-
                               EXHIBIT 3-1

       SUMMARY OF MILESTONES AND PUBLIC  INVOLVEMENT  ACTIVITIES
   Permit Milestone

Submission of permit
application
   Required Activities-

• Mailing list
 Suggested Activities

Field assessment

Public involvement  plan

Introductory notice

Repository

Informal meetings

Fact sheet on facility
Completion of draft
permit (or intent to
deny)
• Fact sheet/statement
  of basis

• Public notice

• Public comment  period

• Public hearing  (if
  requested)
Informal meetings
Permit issued (or
denied)
• Notice of decision

• Response to comments
Final determination
of permit
                            •  Update public involve-
                              ment plan

                            •  Update repository

                            •  Informal meetings

                            •  Publications as needed
                              (fact sheets, press
                              releases, etc.)
••'•• Requirements under RCRA section  7004  and 40 CFR  124 Subpart A.

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                                   -14-
        •   To identify major community concerns regarding the
            facility;

        •   To identify the citizens, community leaders, and
            officials in the area who are especially interested in
            the facility and should be kept apprised of developments;

        •   To identify the best means to provide information to
            the public and, in return, to obtain public comment and
            input.

    The information collected during the field assessment is the basis for the
public involvement work plan and enables the public involvement effort to be
structured to meet tRe needs of a specific community.

    The field assessment may involve one or two days of interviews in the
community, as appropriate.  Efficiency in the use of travel resources, as well
as optimal timing considerations, may lead to the field assessment being
conducted at the same time as the site visit made by permit writers and
enforcement personnel, that is, within 90 days after the permit application
request (unless the permit application has already been submitted).  Even if
the permit writer is well-acquainted with the facility, in most cases the
field assessment will be necessary at targetted facilities to update and
expand knowledge of the parties and issues involved and to make public .
involvement efforts visible and documentable.

    (b) A public, involvement plan is the second 'critical element of EPA's
policy for targetted facilities.  This plan indicates the actions EPA or the
state will take to facilitate public involvement in the decision-making
process for the permit.  Public involvement plans are flexible documents that
reflect the dynamic nature of the public involvement process.  As the public
involvement team becomes more involved in the community, and as the community
learns more about the facility and the permitting process, new (and more
effective) public involvement activities and additional concerns may suggest
themselves.  The initial plan should, therefore, be a brief document --
concise and to the point -- that:

        •   Identifies major community concerns and leaders;

        •   Outlines the minimum actions EPA or the state will use
            to facilitate public involvement; and

        •   Identifies the timing of these activities.

    Public involvement plans prepared by states and regions should be retained
in the facility files and repositories.  These plans will be reviewed at the
time of the mid-year and end-of-year reviews of the state, and during regional
program reviews.  Plans prepared by the regional offices will be appraised by
EPA headquarters during annual reviews of the region's RCRA permitting program.

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                                   -15-
    (c) At the same time as this plan is prepared, EPA or the state should
assemble a mailing list for  the community in which the facility is
located.  The individuals or organizations identified during the field
assessment can be the core for the mailing list.  If a mailing list is already
available, it should be updated based on the field assessment.  Chapter 4
provides additional techniques for developing a comprehensive mailing list.

    (d) An introductory notice should be provided to  the  community  as  soon
as possible after the submission of the permit application.  If enough is
known about the community in advance to identify adequate means of providing
the notice, the introductory notice may precede the field assessment.   The
purpose of this notice is to explain EPA's permit application review process
and the opportunities for public involvement in that process.  It should
include some mechanism (e.g., a telephone number for a contact person, a
return slip to request additional information) to allow the public to express
its interest in opening and continuing dialogue with the agency.

    The notice should take whatever form is most useful in a particular
community.  Options include a fact sheet or newsletter sent to residents on
the mailing list, a radio or television public service announcement, or a
newspaper advertisement.

    (e) Regulations require that the administrative record for a RCRA draft
permit, including the permit application, be placed into a file for public
inspection.  Information  repositories, however, should contain more than
the administrative record to aid the public's understanding 'of the facility
and the -permit under consideration.  Non-technical descriptions of the
facility and its operation, brochures explaining the permit process and public
involvement, and generic fact sheets describing the meaning of exposure
assessments are examples of materials that could be included in a repository.
More examples are given in Chapter 4.

    Selection of a repository site should take into account the convenience
and ease of access for the general public.  A location that does not allow
access after normal work hours will have limited usefulness.  More than one
repository may be necessary.

    (f) If public interest or response to the introductory notice is
sufficiently great, in the judgment of the public involvement coordinator, an
informal  meeting (or series of meetings) may be held to review more fully
the permitting process and to provide opportunities for public comment.
Informal meetings at this stage allow the public to understand and to
contribute information to the development of a draft permit, although state
requirements prohibiting ex parte communication should be taken into
consideration.

    (g) In addition to generic fact sheets and brochures being developed by
headquarters and in the regions, facility-specific fact sheets should  be
considered when a significant number of citizens appear to be interested or
concerned about a facility's permit.  This fact sheet should be sent to
persons on the mailing list, included in repositories, and distributed by any

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                                   -16-
other means suitable for the specific community.   The fact sheet could include
background information on the facility,  provide a timeframe for permitting
activities at the facility, identify opportunities for the public to provide
information and input, address specific  concerns  of the public about the
facility, and identify repository locations.

    As explained in Chapter 2, for public involvement in the permitting
p'rocess to be meaningful, the public must have access to the decision-making
process early enough to understand and provide input to that process.   In the
case of permit issuance, the actions described above should be conducted as
soon as possible following the submission of the  permit application to enable
the public to provide input to permit conditions  before the draft permit is
written.  When an application has not yet been submitted for a facility,
actions intended to anticipate and facilitate public involvement, such as the
field assessment and the public involvement plan, can gain additional
effectiveness by being completed before  submission of the permit
application.

    Early public involvement can introduce the problem of contacting the
public before having answers to facility-specific questions the public might
raise.  It will be necessary to explain  clearly to the public the purpose of
early contacts and the limits on the information  available at early stages of
the permitting process.  A clear explanation can  prevent false expectations
from being formed and reduce any negative impact  on the agency's credibility
that could result from not being able to answer the public's questions.

    Under the 1984 RCRA amendments, each land disposal facility owner/operator
must provide EPA (or the state) information on the potential for exposure of
the public to hazardous constituents through releases from the facility.  The
public may also contribute such exposure information.  Since this information
is expected to be of significant interest to the  public, the exposure
assessment should be considered an agenda item for any contact with the
public, including public notices.

3.2  PUBLIC  INVOLVEMENT UPON COMPLETION  OF  THE  DRAFT PERMIT

    Most public involvement actions to be taken at this point are required
under 40 CFR Part 124.

    (a) EPA or the state must provide public notice  that a draft  permit  has
been prepared.  The public notice must be published in a major local newspaper
and broadcast over local radio stations.

    (b) At least 45 days must be allowed for public comment on the draft
permit.

    (c) If there is written notice of opposition  to the draft permit, EPA or
the state must hold an informal public hearing with 30 days prior notice.
A written transcript or tape recording of the hearing must be made part of the
repository's files.

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                                   -17-
    (d) A fact  sheet  must be prepared for every draft permit for a major
hazardous waste management  facility.  The  fact  sheet  must  include  the
significant factual,  legal,  methodological,  and policy  questions considered  in
preparing the draft permit.

    (e) Despite earlier public involvement  efforts,  some members of  the  public
may not take an active interest in the  permit  process until  a  draft  permit has
been completed and announced.   Informal  meetings  should be held with
members of the public to discuss  elements  of the  draft  permit  that are poorly
understood or are of interest  or  concern to them.   These opportunities for
dialogue confirm to the public that the  draft  permit  is indeed a draft and
still open for additional modifications  to  address  issues  that might not have
surfaced to that point.

3.3  PUBLIC INVOLVEMENT UPON A DECISION ON THE PERMIT

    EPA regulations require  two actions  at  this time.

    (a) When a final decision  is  reached on whether to  issue,  deny,  or modify
a permit, notice  of the decision must  be  given  to  each person who submitted
written comments or who requested such  notice.

    (b) In addition,  EPA or  the state must  issue  a  response to comments.

    The response to comments should include a  summary of significant comments
received and an explanation  of either how  they  were incorporated or  addressed
in permit conditions or why  they  were rejected.   Comments  that are referred  to
other agencies should also be  indicated.   The  response  document should be sent
to those who submitted comments,  attended  the  public  hearing,  or who requested
to receive it.   Any documents  cited in  the  response to  comments should be
included in the administrative record for  the  final permit decision  and  placed
in the information repositories.

3.4  PUBLIC INVOLVEMENT UPON FINAL  DETERMINATION OF A  PERMIT

    Whether a facility is ultimately  denied or  granted  a permit, public
concern does not necessarily end  at that stage  of the permitting process.
Continuing long-term issues  of public interest  may  require additional public
involvement efforts.   Public involvement after  a  permit denial, for  instance,
could address the public's interest in  these issues:

        •   Corrective actions;

        •   Release of ongoing monitoring data;

        •   Release of additional exposure  information; or

        •   Closure plans.

    If a permit is issued, continuing public involvement can address these
same issues and also accomplish several  other  objectives,  including:

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                                   -18-
        •   Provide information to the public regarding changes in
            transportation or emergency evacuation plans;

        •   Receive information from the public on adherence to
            permit conditions (both construction and operation
            phases);

        •   Provide a mechanism to address new or continuing
            concerns  resulting from facility operations;

        •   Facilitate permit appeals, renewals, and revisions; and

        •   Increase  overall agency credibility.

    The type and level of public involvement effort needed at this stage
should be decided on  a case-by-case basis.  If, at the time of final
determination, the level of interest or the types of concerns that the public
has differ substantially from those described in the public involvement plan,
or continuing public  involvement activities are anticipated, the plan may need
to be updated to coordinate continuing public involvement efforts.  Updating
the repository may also be necessary to keep the public informed as additional
information is obtained, changes to the permit or facility are made, or
subsequent agency actions are taken.

    When significant  issues- will continue to be of concern or can be
anticipated to arise  after the final determination on a permit, additional
informal meetings or  publications may be necessary to accomplish the
aforementioned objectives.  Press releases, fact sheets, continuation of
newsletters, and other types of written public information (as described in
the next chapter) should be considered.  Informal meetings with the public may
also be needed when public concern continues to be substantial or the public
desires to play a role in monitoring a facility to ensure adherence to permit
conditions.

    Chapter 4 of this manual explains how to conduct the activities noted in
this chapter.  Chapter 5 discusses certain issues and circumstances that merit
special attention in  designing and organizing a public involvement effort.

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                                   -19-
     4.  TECHNIQUES  FOR  CONDUCTING PUBLIC INVOLVEMENT ACTIVITIES
    The following discussions  have  been  selected  from various sources  (see the
preface) and are provided as  a reference in  planning and  implementing  a
sensible and sensitive public  involvement program.  The discussion of  each
activity focuses on general techniques  for conducting the  activity; these are
"how to" discussions.

    As previously noted,  the  recommendations for  this program have been kept
to a minimum to allow for maximum flexibility for each facility-specific work
plan and public involvement effort.   It  must be noted, however, that simple
adherence to the recommendations  will not, in most  instances, produce  a
successful public involvement  process, nor will it  necessarily speed issuance
of the permit.

    A skillfully selected blend of  both  specifically recommended activities,
and activities  appropriately  tailored to the needs  and concerns of the
community and the owner/operator, will produce far  preferable results.

    This chapter is divided into  eight  sections,  as follows:  4.1  -
Identifying Potential Participants  and  Building Mailing Lists; 4.2 - Field
Assessment; 4.3 - Public  Information Programs and Publications; 4.4 -
Information Repositories; 4.5  - Public Notices; 4.6 - Public Meetings; 4.7 -
Public Hearings; and 4.8  - Responsiveness Summaries.

4.1  IDENTIFYING POTENTIAL PARTICIPANTS AND BUILDING MAILING LISTS

    4.1.1  Focus

    A mailing list is an  important  communications tool which allows an agency
or organization to reach  broad or targetted  audiences with its messages.  The
better the mailing list,  the  better the  public outreach and delivery of
information.  A well-developed mailing  list  will  reach a  group of  potentially
active participants -- people  who want  to be involved in  an agency program or
plan, or those who wish to be  involved  simply by  staying  informed.   The
process of developing a mailing list begins  early in the  public involvement
effort.

    The mailing list is used  to send announcements  of meetings, hearings,
events, and available reports  and documents  to the  public.  In addition, it is
used to identify members  of the public who may be considered for work  groups
or attendance at meetings and briefings.  A  wide  variety  of approaches are
available to collect names for the  list.  Several,  but not all, of these
approaches should be employed.

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                               -20-
4.1.2  Techniques

A.  The names of people interviewed during the field assessment, as well
    as other names these people recommend, should be placed on the mailing
    list.

B.  All nearby residents and owners of land adjacent to the facility
    should be included on a mailing list.

C.  Seek out existing lists.  Other EPA and federal programs, as well as
    state and local programs, may have developed mailinq lists which can
    be used in whole or in part.  Sometimes, lists are exchanged or traded
    among agencies.  Prepared lists should be carefully scrutinized,
    however, to make sure they are applicable.

    Borrowed lists may be out of date.  Verify some of the names and
    addresses on the list to test its current validity.

D.  Organizations with a potential interest in an agency program or action
    may have mailing lists of members important to the agency, although
    some organizations may be reluctant to give these lists.  Each agency
    or program with a mission must consider different types of groups.
    Representative groups include:

    1.  Outdoor recreation organizations such as hiking
        associations, rod and gun clubs, cross country skiing
        groups, sports fisheries' associations, and recreational
        boaters and sailors.

    2.  Commerce and business groups such as manufacturer
        associations, associated industries, Chambers of
        Commerce, and the Jaycees.

    3.  Labor leaders and unions.

    4.  Environmental leaders and groups.

    5.  State and district farmers' associations, including the
        farm bureau, dairyman's cooperatives, conservation
        districts, and water districts.

    6.  Health organizations such as the American Lung
        Association.

    7.  University extension and county agricultural extension
        agents.

E.  Many civic and social organizations, such as the League of Women
    Voters or the Chambers of Commerce, have their own newsletters. For
    applicable groups consider requesting a copy of the group's newsletter
    mailing list, and ask if they would run notices in their paper.

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                               -21-
F.  Specialized directories of organizations and businesses can provide
    additional names and addresses of potential participants.   Examples
    include state directories of manufacturers, environmental  groups and
    chemical society members.

    The business and reference section of the library is a good starting
    point for reviewing various directories.

G.  Any individual who attends a public meeting of the agency, or one with
    a related mission, or calls or writes to the agency seeking
    information, should be added to the mailing list.  Careful attention
    to the affiliations of various individuals or groups attending
    meetings or corresponding with the agency can yield entire categories
    of people to be added to the list.

H.  The applicant should be included on the mailing list.

I.  According to Executive Order 12372, the state may designate a single
    point of contact (SPOC) or delegate intergovernmental review
    responsibility to an agency or organization for the purpose of
    reviewing proposed RCRA permit actions.  At the very least, the SPOC
    or delegated entity should be sent a copy of the draft permit and '
    notified of the public comment period.

J.  Local newspaper stories often contain substantial information of use
    to public involvement specialists, including the names of people with
    a potential interest in the agency.

K.  The names of local reporters and editors, and appropriate newsletter
    editors, should be added to the mailing list.  If time permits,
    interview reporters and editors with knowledge of an area or subject.
    Placing their names on the mailing list is one way of assuring that
    these "gate keepers" have direct access and accurate information about
    a program.

L.  Elected and appointed officials with a potential interest (substantive
    or political interest) should be placed on the list.

M.  Consider placing the names of local educators (primary, secondary,
    high school, and college and university) on the list.   Aside from
    their personal interest, these people can use project information to
    develop classroom learning packages and programs, and tell their
    students about the project and underlying issues.  Often,  children
    will communicate information and ideas on class projects and current
    events to their parents, thus affecting a secondary communication.

N.  State agency technical, enforcement, public affairs, and public staff
    should be contacted.

0.  Public notices for draft permits, public comment periods,  and intended
    denials are required to be sent to state agencies that have authority

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    under state law with respect to the construction or operation of a
    RCRA facility and to any unit of local government having jurisdiction
    over an area where a facility is located.

P.   Secondary or miscellaneous sources of names for mailing lists include:

    1.   State revenue departments which'maintain lists of
        non-profit organizations in the state.

    2.   For states, the Secretary of State or offices of the
        legislative leadership maintain lists of legal
        lobbyists.  In Washington, lobbyists register with the
        Senate Office of Public Records and the House Office of
        Records and Registration.

    3.   Local, regional, and state League of Women Voters,
        environmental, planning commissions, and land use
        chairpeople may have lists of potential participants.
        The national League maintains other lists.

    4.   University scientists, senior administrators, and
        technical experts (such as soil scientists,
        hydrologists,  and law and political science faculty who
        specialize in land use and environmental law) might be
        placed on mailing lists.  They may recommend the names
        of others who should be added to the list.

    5.   The public affairs or environmental control directors  of
        major industries might be consulted for additional names
        and addresses.

    6.   Local neighborhood associations -- formal and informal
        -- may prove helpful.

    7.   Churches and church organizations.

    8.   Telephone directories, especially the yellow pages,
        provide lists of associations.  Zip code directories may
        be useful when trying to reach one small part of a city
        or state.  Consider developing a list of all landowners
        within one mile of the facility in question.

    9.   Multi-service centers, community development
        corporations,  community centers, and health centers
        might prove helpful in attempts to reach senior citizens
        organizations.

   10.   Local fire, police, and disaster agency officials should
        be located and listed.

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                                   -23-
    4.1.3  Evaluation

    A.  Is the mailing list comprehensive, encompassing all of the key
        categories or target publics?

    B.  Is the mailing list updated regularly?

    C.  Has an easy to access system been devised for adding and subtracting
        names easily and efficiently?

    D.  Has the list been broken down by zip codes if bulk mailing is
        anticipated?

    E.  Have adequate funds been allocated in the budget to cover the costs of
        maintaining the list and the cost of printing and postage?


4.2  FIELD ASSESSMENT

    4.2.1  Focus

    On-site interviews with local residents, government officials, community
groups, and media representatives are extremely useful techniques to help gain
an understanding of the facility's history, the community issues connected
with the facility, the level of citizen concern, and the political climate.
Community interviews are also useful to identify credible sources and
disseminators of information.

    4.2.2  Techniques

    A.  Arranging the interviews:

        At this stage of the permit process, the names and phone numbers of
        the people involved with the facility may already be known or have
        been obtained.  Ideally, the meeting place should be at the
        interviewee's office or home, whichever may be most conducive to
        candid discussions.  While government and media representatives are
        likely to prefer meeting in their offices during business hours, local
        residents and community groups may be available only after-hours.

    B.  Planning the interviews:

        Prior to or during the interview, time may be spent reviewing files at
        EPA, the state agency, or a local library or Chamber of Commerce that
        contain news clippings, documents, letters, and other sources of
        information relevant to the facility.  Ideally, only people with a
        thorough understanding of the RCRA program, the facility itself, and
        interview techniques should conduct the interviews.

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                               -24-
C.  Telephone interviews:

    Some information may be efficiently obtained over the telephone.  In
    telephone interviews, explain how the interviewee's name was acquired,
    the type of information needed, the reason the information is needed,
    and how it will be used.  Be brief.

D.  Interviewing residents and community groups:

    Interviews involving local residents or community groups are likely to
    require more time.  Be prepared with a set of questions in mind;
    questionnaires may seem too formal and are likely to elicit curt
    responses. ,Be sensitive to the residents' needs and concerns, but
    remind them that the purpose of the interview is to gather preliminary
    information to be used in planning an appropriate public involvement
    effort.  In this way, unrealistic expectations are not raised.

    In many cases, the interviewee will ask questions and express concerns
    about the facility.  The field assessment, in some cases, can be a .
    useful technique for providing interested citizens with timely
    information on the RCRA permitting process and on facility and Agency
    activities prior to development of the draft permit conditions. With
    adequate preparation, the interviewer can thus acquire information
    useful for later planning, as well as respond to initial citizen
    concern with accurate information and allay unwarranted concerns.

E..  Interviewing government officials:

    Interviews with government officials should include a brief
    introduction explaining why they are being interviewed and what kind
    of information is needed (facility history, government activity at the
    site, a political perspective on citizen's expectations, etc.).

F.  Confidentiality:

    At the beginning of each interview, explain that the field assessment
    will be used to prepare a public involvement work plan.  If the
    interviewee would like to remain anonymous, explain that the
    information will be used to understand community concerns and that a
    record of the contact will be made, but EPA or the state will not
    attribute any specific statements or information to the interviewee.

G.  Other possible contacts:

    During the field assessment interviews, ask for names and phone
    numbers of persons who could provide additional information on the
    facility and community views and concerns.

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                                   -25-
    H.  Information on public involvement activities:

        Ask whether the interviewee would like to receive any fact sheets or
        other printed information as the permitting process continues.   Also,
        'for future reference, keep a list of persons interested in attending
        public meetings.


4.3  PUBLIC  INFORMATION  PROGRAMS AND  PUBLICATIONS

    4.3.1  Focus

    The outreach activities which this guidance recommends should include the
development of accurate and timely written information for distribution to the
public, for example, fact sheets and newsletters.

    Overall, such materials should promote understanding and highlight  and
summarize critical issues.  The environmental consequences of potential
actions, options, or decisions should be clearly stated in materials
distributed to the public.  The public should also have access to complete
reports and documents in information repositories.

    At a minimum, site-specific materials should include:

        •   Background information
        •   Legal justification for the action
        •  -Timetable of proposed actions or planning phase
        •   Summaries of lengthy or technical material
        •   Delineation of issues
        •   Alternatives or tentative determinations made by the
            agency
        •   Ways to encourage public involvement
        •   Names of people to contact for further information
        •   Opportunities for public involvement

The public may also be provided with general descriptions of the RCRA
permitting process, hazardous waste management techniques, or similar topics.

    4.3.2  Techniques and Methods

    The first step in developing an effective information program is to plan
for a publication effort that is integrated with the overall public
involvement plan for a facility.  The public involvement plan must
realistically balance the cost, timing, quality, scope, variety of
publications, and identify target audiences for various publications.  Using
the plan for guidance, work can proceed on individual publications with
knowledge of how each publication will contribute to the total public
involvement effort.

    Written communication should meet the five criteria embodied in the
acronym ANSVA:  ATTENTION, NEED, SATISFACTION, VISUALIZATION, ACTION

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                               -26-
    (a) Attention:  Each information product should capture the attention
        of its intended audience by using a theme or issue important to
        that audience.

    (b) Need:  Each publication should demonstrate that the reader has a
        need or problem.

    (c) Satisfaction: The written piece should show how the government's
        program can meet or satisfy the readers'  need or problem.

    (d) Visualization:  People often comprehend and retain complex ideas
        and material better if they can see the material visualized.
        Materials should make liberal use of charts, diagrams,
        illustrations, photographs, or mathematical displays.  The adage
        "a picture is worth a thousand words" has proved true in many
        studies of reader/audience comprehension and retention rates.

    r(e) Action:  Each piece of public information should invite action.
        Attending a public meeting or placing a name on a mailing list are
        examples of action steps.  Public information is effective only if
        it provides the basis for potential change. The action step
        reinforces learning.

4.3.3  General Guidelines for Developing Public Information Products

A.  Begin each writing project by developing a detailed outline of the
    purpose and content of the material to be covered.   The audience for
    whom the material is intended should also be clearly stated.

B.  Every information program must operate on at least two levels -- the
    publics that are already interested and involved, and those that are
    not.  The information directed toward the involved group may include
    more complex or detailed information or progress reports.  Fact sheets
    and lengthy information pieces fall under this category.  The
    information directed to the less involved group might be considered
    preliminary to participation.  These materials should be attractive
    and brief, and appeal to the needs and concerns of laypeople.

C.  In headlines and initial paragraphs, attract attention and interest
    with thought-provoking statements or questions.  Link problems and
    issues with the reader's life and experience.  Personalize messages;
    demonstrate how the agency's programs affect people's lives.

D.  Early in the text introduce the content of the publication.

E.  Write clearly, simply, and directly, avoiding technical terminology,
    acronyms and professional jargon.  Translate technical language into
    terms the public can understand, or define technical terms the first
    time they are used in a publication.  Write general purpose materials
    at the same reading level as the local paper is written.

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                               -27-
F.  Use short declarative sentences with active verbs to make key points.
    Avoid the use of long and complex sentences.  Say it simply.

G.  Use conversational English.  For example, use "do" for "accomplish"
    and "because" for "in view of the fact that."

H.  Consider using human scale comparisons, rather than technical terms,
    to communicate a point.   For example, "the facility will generate
    noise approximately equal to that of a typical city street," or "the
    cost per family will be about $100 per year."

I.  Limit the length of the material.  Five double-spaced pages (about
    1,500 words) is all the general interest citizen will typically take
    the time to read.  If the material requires greater length, prepare a
    one-page summary for readers with limited time.  Another approach is
    to design a longer piece so that someone with limited time can read
    highlights in five minutes, more in-depth material in 15 minutes, and
    complete the entire piece in 30 minutes.  By telling the reader how a
    piece is structured on the first page, the reader can choose how much
    time to invest in the piece.

J.  Don't lose sight of broad perspectives and goals when developing
    materials.  For example, in technical documents, provide a summary
    that stresses concepts,  not just facts.  Organize materials
    conceptually with facts and data providing the-foundation for basic
    themes.

K.  Each individual element in an information and education program should
    be easily linked to the overall program.  The reader should easily see
    the relationship between a particular topic or product and the total
    project.

L.  Pre-test all public information products by asking several lay
    citizens or officials to read and evaluate drafts for clarity, order,
    comprehensiveness, and detail.  This final review can help ensure high
    quality publications that meet their intended goals.

M.  Use graphics and illustrations to support the written content of a
    publication.  Photographs, charts, and drawings can communicate ideas
    quickly, directly using few words.  Using several type faces, such as
    a standard and an italic type, can lend emphasis and clarity.
    Capitalization and underlining add emphasis, too.

N.  Always make full reports and technical information available to the
    public for review, in addition to providing summaries.  Materials
    should be available at easily accessible repositories.  Let the public
    know where and when the materials are available.

0.  For general purpose publications, such as brochures and newsletters,
    distribute copies to people whose names are on the mailing list,
    including elected and appointed officials.  Mail copies of

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    publications co media outlets in the project area.  Make publications
    readily available to the general public at libraries, government
    buildings, shopping centers, and other public places.  Include
    publications as a part of a project display.

4.3.4  Types/Uses of Specific  Publications

    A.  Brochures

    1.  A general pamphlet or brochure is a useful tool to explain the
        background and mandate of a program, the role of the public in the
        planning process, and the expected outcomes of the project.  A
        brochure should be an easy-to-read, quick summary of agency and
        program goals and objectives.  It should provide answers to common
        questions.

    2.  A brochure should include a brief background on the program, the
        planning process, schedules for upcoming events, and the points
        where public involvement is most important.

    3.  The publication should give the reader a sense of the scope of the
        issue, how planning will proceed, possible alternatives, potential
        impacts on the area's growth and development, and possible effects
        on taxes and quality of life.

    4.  The brochure should be written with a long-term perspective in
        mind,' so the publication remains timely throughout the process or
        is useful in a number of cases.

    5.  Distribute the brochure widely in the early stages of a project.
        Timing is important for establishing credibility and for informing
        the public early.

        Mail copies of the brochure to all media outlets in the planning
        area, accompanied by a cover letter offering a name and address to
        contact for further information.  The letter should explain why
        the project is important and how it might affect the community and
        region.

    6.  Include a pre-addressed mail-in form as a part of the brochure so
        that people with an interest in the program can be added to the
        mailing list.  Let the public know that other materials will
        follow as the program develops (i.e., newsletters, report
        summaries, etc.).

    7.  Include a name, address, and phone number in the brochure  for the
        public to contact for additional information.

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                           -29-
B.  Newsletters

1.  Newsletters facilitate a regular flow of information to the
    primary audiences of a public involvement effort.   They provide
    timely and useful information to citizens.   They are an
    inexpensive way to regularly promote understanding, dialogue,  and
    public involvement.

2.  Newsletters should inform without bias.   They should not be used
    as an advocacy tool.  Newsletter editors must maintain credibility
    if the newsletter is to remain effective over time.

    (a) Separate opinion from objective or historical  material, and
        label it as such.

    (b) Sometimes credibility can be enhanced by printing statements'
        developed by representatives of opposing points of view.

3.  Link key issues to subjects and ideas the general  public can
    understand and appreciate.

4.  Newsletters can provide timely information such as:

    a.  Articles on new developments.

   .b.  Reports on public involvement activities, and  how to join them.

    c.  People stories are particularly good for reader interest,  but
        should not be over used.  Describe the activities of citizens
        and officials working on various aspects of a project.  Use
        people stories to encourage citizens to participate.  Avoid
        long lists of names.

    d.  Feature articles on major issues in a project, the most common
        questions asked by the public, or the primary concerns of
        officials or other professionals.  Also, consider reprinting
        relevant articles from other publications.

    e.  Calendar of upcoming meetings.

    f.  Summaries of meeting comments and responses.  If used as an
        informal responsiveness summary, newsletters reach the most
        important audience with timely and useful information
        documenting the value, history, and impact of public
        involvement.

    g.  A regular column written by a citizen (an option).  If stories
        are invited from guest authors, detail editing ground rules in
        advance.

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                           -30-
    h.  The names and addresses of people to contact for further
        information.

    i.  Maps and other forms of graphic information.

    j.  Lists of information and audio-visual materials available to
        the public, and the locations of resource material.

5.  More than any other information tool, newsletters can be used
    imaginatively.   Maps for citizens to evaluate, mark-up, and
    return, and attitude and opinion questionnaires are just a few
    unusual suggestions for newsletters.  These techniques make
    newsletters an enjoyable and interesting experience for readers.

6.  Newsletters should be mailed to local and regional media
    representatives as another way of keeping them informed of
    progress.

7.  The editors of other newsletters with a potential interest in the
    subject of your newsletter should receive copies as well.  They
    may find information of importance they would like to pass on to
    their readers.

8.  Many citizens will keep all issues of a newsletter as a historical
    record of their involvement in a project.  Number and date all
    newsletters.

C.  Fact Sheets

1.  Fact sheets are an adjunct to newsletters and other publications.
    They are most useful for providing an in-depth analysis of
    specific, complex issues of public concern.  They may be longer
    than newsletters  and contain more detail.

2.  Some fact sheet topics will be chosen in advance; others will
    evolve from questions and concerns raised during the public
    involvement process.

3.  Fact sheets can be distributed as a part of a newsletter or as a
    separate publication.  They can be mailed to the entire mailing
    list or to selected groups.  They should be available to anyone
    for the asking.

4.  They are most useful for presenting key information at crucial
    decision points in a project.

5.  They provide excellent background for citizen activities at public
    meetings and conferences.

6.  Fact sheets can be produced inexpensively, and are easily up-dated
    as projects mature and become more refined.

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                               -31-
    D.  Length of time it usually takes to prepare a typical public
        information product

        1.  Scheduling adequate writing, review, and production time is an
            important element of information planning.  Plenty of lead
            time is required to produce a high quality document.  For
            example, for a state government to produce a twelve-page
            newspaper tabloid that serves as an executive summary and
            public hearing notice, the following time schedule is
            suggested (in person days):

            a.  Writing first draft 	 10 days

            b.  Typing the first draft 	  2 days

            c.  Agency staff reviews/citizen reviews
                of first draft 	  5 days

            d.  Consolidation of reviews and rewrite  	  5 days

            e.  Retyping 	  2 days

            f.  Graphic design, typesetting, paste-up 	  3 days
                (If portions are copied this time may be reduced)

            g.  Printing	 4-7 days

            h.  Preparation for mailing (100-500 copies) 	  3 days

            i.  In the mails 	  5 days

            j .  Date in citizen' s hands	  14 days
                                                      before public meeting
                                                      or hearing

4.3.5  Evaluation

    A.  Information Planning

        1.  Have information needs been identified in the public
            involvement plan?

        2.  Do the program elements in the information plan work together
            to support one another?

        3.  Do information products precede public meetings and public
            hearings in the plan?  Has the schedule been maintained?

        4.  Are the goals of the information program and each program
            element clearly stated?

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                           -32-
5.   Does each information piece have a definite goal and targetted
    audience?

6.   What types of information products are anticipated?  Are a variety
    of methods used to communicate with various target publics? From
    the list below check, the information products anticipated in the
    public involvement plan.

        Brochures
        Fact Sheets
        Direct Mail Letters
        Flyers
        Posters
        Articles in Other Community or Agency newsletters
        Issue Papers and Option Documents
        Executive Summaries
        Speakers Bureau
        Weekly Newspapers
        Daily Newspapers
        Radio and Television Talk and Public Affairs Programs
        Radio and Television News Programs
        Slide Program
        Slide Tape Program
        Films
        Other Media

B.   Information Products

    1.  For each public information product, are the issues and
        alternatives defined in an accurate, realistic, and
        understandable manner?  Are the decisions requiring public
        involvement clearly stated?

    2.  Are the environmental impacts and consequences clearly defined
        and stated for each alternative?

    3.  Do explanatory materials contain clear, concise, and factual
        information?

    4.  Are technical and professional terms and government acronyms
        defined and explained?  Has a glossary of term's been prepared?

    5.  Have individual information products been pre-tested with
        citizens and officials prior to printing and distribution?

    6.  Are information products provided free of charge to the
        public?  If there is a cost, is the cost nominal?

    7.  Do all information materials contain the name, address, and
        phone number of a contact person within the agency who can
        answer questions and provide information?

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                                   -33-
4.4  INFORMATION REPOSITORIES

    4.4.1  Focus

    Information repositories should allow free and convenient access to
information either required or deemed useful to be made available to the
public.  An information repository is a central file where citizens  can review
all permit-related documents approved by EPA or a state for public
disclosure.  Information in the repositories should be updated as necessary.

    4.4.2  Techniques

    Select one or more locations early in the permit process.  Locations
should be easily accessible to members of the community, and should  be open
after work hours.  Possible repository sites might include libraries,
government buildings, and shopping centers.   Contact individuals at  the
selected repository locations in order to:

        •   Identify special needs of the repositories to keep
            contents together (e.g., in a 3-ring binder).

        •   Discuss how additions will be handled.

        •   Learn where information will be  located.

        •   Discuss possible special displays at the repositories
            to highlight information.

        •   Discuss methods to have a sign-up sheet for mailing
            list development.

        •   Receive approval from the repositories.

    Select and deposit the materials to be included in the repository file.
Potential materials for the file include:

        •   Permit application;

        •   Draft permit;

        •   News releases about the permit and facility;

        •   A facility description;

        •   Technical data concerning the facility and relevant
            permit issues;

        •   Non-technical descriptions of the facility and
            relevant permit issues;;

        •   RCRA fact sheets;

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                                   -34-



        •   Pertinent Federal Register notices;

        •   Copies of orders and decrees;

        •   Information concerning the RCRA permit process and
            opportunities for public involvement;

        •   Any reference materials relevant to the facility
            (e.g., maps, chemical references, etc.);

        •   Announcements of all public involvement activities;

        •   Transcript of public hearing, agendas, handouts;

        •   Responsiveness summary;

        •   A list of agency personnel (with addresses and
            telephone numbers) from whom further information can be
            requested;

        •   Any other documents that are part of the
            administrative record.

Combine .these materials in a 3-ring binder or any similar format.  Deliver to
repositories wit-h instructions on how to add future information.  Display
materials should also be developed and delivered as part of the repository.
Publicize the existence of the repository.  Notify local government officials,
citizens groups, the local media, and individuals on the mailing list of the
repository files' locations and hours of access.

    4.4.3  Evaluation

        A.  Have information repositories been established?  In central
            locations?  Are there convenient access hours?

        B.  Are the appropriate documents available at the repositories?

        C.  Are the files kept current?

        D.  Have the existence and location of the repositories been
            adequately publicized?


4.5  PUBLIC  NOTICES

    4.5.1  Focus

    Public notices are intended to stimulate interest in and increase
attendance at upcoming meetings and hearings.  Other communication devices,
discussed in the public meeting and public information sections, should also
be used.   Just publishing a public notice in a local newspaper, however, does

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                                   -35-
not guarantee that the public will be adequately notified of public events.
Direct mail and one-to-one telephone contact,  for example,  work effectively if
the goal is to generate attendance at public meetings.

    4.5.2  Techniques

        A.   Public notices must be seen to be effective.   They may be in the
            form of letters,  newspaper advertisements,  posters, or other
            graphic formats.   They should entice readers  so that they are
            read.  Using  eye-catching headlines or photographs, or
            personalizing issues,  helps to do this.   Notices should explain
            why it is important to attend the meeting or  hearing and what
            influence or responsibility attendees will have.  The notice
            should highlight  issues to be covered at the  event, decisions to
            be made,  and the  potential impact of decisions.  Avoid the use of
            a strict  legal notice  format, such as those in the legal notices
            section of newspapers; these notices are rarely seen or read by
            the primary audiences  of public involvement programs.  Public
            notices should be distributed so that they are highly visible to
            the targetted audiences.

        B.   Distribution should occur at least 30, but preferably 45, days in
            advance of the meeting or hearing.  Respect the requirement for 45
            days notice when  a public hearing on a draft  permit or tentative
            denial is to be held.   This length of time allows busy people to
            schedule  the event in  their calendars, and to prepare comments and
            testimony.  A reminder notice five to seven days in advance is
            also helpful.

        C.   Keep public notices brief and to the point.  Conceptualize issues
            from the  public's point of view.  Present the information in
            language  familiar to lay people; avoid the use of jargon,
            government acronyms, and complex technical terms.

        D.   Notices should highlight the environmental and health issues of
            concern,  the implications of the issues, and  the decisions to be
            made.

        E.   The notice should indicate how participation  in the event will
            relate to subsequent decisions and the resolution of issues.

        F.   Where possible, use graphics to capture the attention of the
            audience, to tell a story, and to increase recall.

        G.   If possible, have public information specialists and graphic
            designers prepare the  notice.  If this is not possible, have an
            information specialist review the notice.

        H.   Whenever possible, pre-test public notices with the public before
            their distribution.  Make sure the public receives the message
            intended by the agency.

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                               -36-
    I.  Distribute the notice through direct mail to organizations and
        individuals with a potential.interest in the meeting or hearing.

        1.  In one major survey of how people who attended meetings and
            hearings heard about the event, the largest number said they
            received something in the mail that told them about the
            gathering.  The second most common response was that someone
            told them about the event.  Word-of-mouth proved to be an
            effective communications channel.  Less than five percent of
            those surveyed said they saw a notice in the newspaper or
            heard about it on radio or television.

        2.  Consider the use of a telephone network to initiate the
            word-of-mouth communications system.  This is especially
            effective in small communities and in neighborhood organizing.

    J.  Distribute the notice widely to the print and broadcast med'ia.

        1.  Provide a camera ready copy, to newspapers for placement as a
            display advertisement or as a free calendar announcement.
            "Run-of-paper" or display advertising rates are higher than
            classified rates applied to legal matters.  Display
            advertising is generally more expensive, but is more visible
            and effective.  If budgetary constraints make display ads
            prohibitively expensive, legal notices can be used.

        2.  Provide a slide of the notice to television stations for them
            to use as a background image when announcing the event.

        3.  For radio and television, include a public service spot
            announcement or press release, along with the notice, to
            increase the likelihood of the notice getting "air time."

4.5.3  Evaluation

    A.  Was the public notice part of an overall plan of notification and
        information?  Were the elements of the plan, such as the use of
        advertisements, public service spots, and public speaking events,
        well coordinated?

    B.  Did the public notice appear 30-45 days before the event, allowing
        adequate time for the public to prepare?

    C.  Was the public notice attractively designed?  Did it capture the
        reader's eye, and quickly communicate the intent of the event?

    D.  Was the method of distribution relevant to the community?  Did it
        build upon existing communication channels?

    E.  Did notices reach all of the potentially affected individuals and
        organizations?  How was distribution coordinated?  Were both
        opponents and proponents included in the distribution?

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                                   -37-
        F.  Was the notice displayed prominently in the media and posted in
            visible locations at least 30-45 days in advance of the event?

        G.  Did a press release accompany the notice?  Were other media events
            organized, such as briefing reporters or preparing feature
            articles?

        H.  Did the notice emphasize why the event was to be held?  Did it
            identify the important decisions, issues, and program impacts?

        I.  Did the notice stress the importance of citizen attendance and
            participation?  Did it explain how participation would affect
            decisions and choices?

        J.  Did the written notice include:

            1.  An identification of issues under consideration?

            2.  A description of alternative courses of action?

            3.  A brief listing of applicable laws and regulations?

            4.  An identification of locations where relevant documents were
                obtainable?

            5.  The names of individuals to contact for additional information?


4.6  PUBLIC  MEETINGS

    4.6.1  Focus

    Public meetings are one means of establishing a dialogue with a
community.  The goal in any form of dialogue, such as meetings and workshops,
is to encourage an exchange of views and open exploration of issues,
alternatives, and consequences.

    Public meetings must be preceded by the timely distribution of
information.  They should occur sufficiently in advance of decision-making to
make certain that the public's opinions are considered and to permit response
to public views prior to agency actions.

    Meetings should be held at times and places that encourage attendance and
participation.  Whenever possible, they should be held during non-work hours,
such as evenings and weekends, and at locations accessible by public
transportation.

    4.6.2  Techniques

    Public meetings are agency-sponsored gatherings, open to the general
public, and held to inform or involve the public in planning and

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                                   -38-
decision-making.   If a quescion-and-answer period is included, they allow for
two-way communication, and generate interest and participation in a project.
They should be used selectively, integrated with other public involvement
techniques, and designed to meet specific objectives.

        A.   Planning

            1.  Identify the agency's objectives, expectations, and desired
                results for the meeting.

            2.  Identify the audience's objectives, expectations, and desired
                results.

            3.  Match the composition and size of the group invited to attend
                a meeting with agency objectives.

            4.  Decide on the level of participation and involvement expected,
                and choose the meeting structure and format that can best meet
                agency objectives for dialogue.

                Then, choose the specific methods and techniques for
                discussion, planning, problem-solving, and decision-making.

            5.  Choose a meeting location, keeping in mind necessary room
                arrangements, equipment and supply requirements, and
                accessibility by public transportation-.

            6.  Identify the-roles and responsibilities of various staff
                members and of local officials or citizens who will
                participate in the meeting.

            7.  Make sure that everyone who wants to speak has an opportunity
                to do so.

        B.   When to Use

            1.  When the agency wants to inform people, clear up
                misunderstandings on agency actions or plans, or generate
                public discussion on proposals, plans, or recommendations.

            2.  When the agency wants to reach a large number of people at
                once, both directly (at the meeting) and indirectly through
                follow-up media coverage in local and regional newspapers, and
                on radio and television.

            3.  When the agency wants to encourage comment and debate among
                various groups interested in the facility's permit and to
                encourage more community dialogue.

            4.  When community interest on an issue is high.

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                               -39-
        5.  When participants in a project feel the need to share
            information and ideas with the rest of the community.

        6.  When an agency seeks' to communicate with an audience larger
            and more diverse than can be included in workshops.

        7.  If the sole purpose of conducting a public meeting is to
            educate the public, consider whether the public meeting is the
            most effective technique.  The use of newsletters, fact
            sheets, slide programs, or sending public speakers to the
            regularly scheduled meetings of organized groups, may prove
            more successful.

4.6.3  Evaluation

    A.  Did the staff or participants have a good reason for holding this
        meeting?  What was the goal of the meeting?  Was the goal clearly
        stated?  Did the goal of the agency match that of the audience?
        Was the goal of the meeting attained?

    B.  Did the meeting precede and relate to a key decision point?  Was
        the audience aware of this fact?

    C.  Was attendance at the meeting consistent with the meeting's goals?

    D.  Did the staff provide written background material?  What products
        were provided to attendees?  Examples:

        •   Executive Summary
        •   Technical Summary
        •   Fact Sheet
        •   Newsletter
        •   Technical Report
        •   Maps and Graphs
        •   Other

    E.  How long was the program?  Was the agenda followed closely?  Was
        the program just right in length, too long, or too short?  Did the
        audience remain attentive for the entire program?

    F.  Were the moderator, speakers, and supporting staff appropriate for
        meeting the session's goals?

    G.  Was the informational program well presented?  Was the speaker(s)
        well informed?  Did audio-visual materials contribute to the
        informational aspects of the program?  Was the informational
        program well balanced, too technical, or not detailed enough?

    H.  Did the sponsoring agency ask attendees to evaluate the meeting?

        1.  If so, were the attendees representative of the affected
            community?

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                                   -40-
            2.  If so, did the attendees seem to understand the purpose of the
                meeting?  Plan?  Project?  Timetable?  The public's role?  The
                timing of the key decision points?  How the public's comments
                would influence decisions?  The government agencies involved?
                Costs?  The source of funds?

        I.  Did the public receive complete answers to their questions?

        J.  Did a staff member take notes at the meeting for use in permit
            development and in a responsiveness summary?

        K.  Was formal public notice sent 30-45 days prior to the meeting?
            Did the notice clearly state:  (check)

            •   Purpose
            •   Date and Place
            • .  Time
            •   Directions to the meeting site
            •   Parking, transportation, and other supporting information


4.7  PUBLIC  HEARINGS

    4.7.1  Focus

    While hearings are the most familiar form of dialogue, they should not
serve as the only forum for citizen input.  When used, they should occur at
the end of a process that has given the public earlier access to information
and opportunities for involvement.

    4.7.2  Techniques

        A.  Information

    At the beginning of the hearing, the agency must inform the audience of:

        •   The issues involved in the decisions to be made;

        •   The considerations the agency will take into account
            under laws and regulations;

        •   The agency's tentative conclusions, if any; and

        •   The information the agency solicits from the public.

    Certain regulations require the preparation of a formal hearing record,
such as a verbatim transcript or an audio tape recording.  Hearing records
must be left open for at least 10 days to receive additional public comment,
and be available for inspection and copying.

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                                   -41-
    Public hearings provide highly structured opportunities for hearing and
collecting public testimony on projects and issues.   Public hearings are most
likely to be held during the public comment period on the draft permit, at
which time they often serve to encourage the preparation of written comments
by the public.

    Holding a public hearing does not mean that an agency has conducted a full
public involvement program.  Under normal circumstances, many other public
participation events must occur prior to a hearing so that the public has had
an opportunity to gain considerable knowledge and understanding of the issues
in advance and thereby be able to offer informed comments at the hearing.

    While public hearings are formal events, a variety of hearing formats
exist.  A format should be chosen that meets the needs and conditions of the
project.

        B.   Procedures

            1.  Begin with an opening statement that includes a summary of
                major recommendations or conclusions, a description of the
                public involvement effort, and explanation of the hearing
                rules.

            2.  Consider having a question-and-answer period so that issues
                are clarified and proposals explained.  Questions can be taken
                in the hearing room or in an adjacent room.

            3.  Accept public testimony scheduled in advance, but avoid giving
                one category of testimony the "best" time periods, which may
                alienate general citizens who may also want to speak.  Set a
                time limit for oral testimony (such as five or ten minutes)
                and encourage participants to submit longer written testimony.

            4.  Have an additional period of testimony for those who did not
                schedule their remarks in advance.  Consider taking them in
                the order in which they signed up at the hearing, or schedule
                blocks of time for particular points of view.  When many
                people sign up at once, names can be drawn at random.

            5.  End with a closing statement in which the schedule for
                additional hearings, the length of the comment period,
                procedures for providing additional testimony, and a statement
                on how to view or obtain copies of the complete hearing record
                (if one has been prepared), are described.
    Note:  A public hearing is a type of public meeting.  Consequently, much
of the material in the preceding section on effective meetings applies here.
Please see that section for further information.

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                               -42--
        6.  Attempt to hold to a set schedule for those participants who
            have signed up in advance to speak at the hearing.

        7.  Have some type of registration card available at the hearing
            for people who wish to speak but did not pre-register.

4.7.3  Evaluation

    A.  Was the purpose of the hearing stated to the public in
        attendance?  Were the issues clearly stated to the public?   Was
        the purpose of the hearing fulfilled?

    B.  Were hearing notices sent out 30-45 days in advance?  Did
        participants indicate that they were notified well in advance?
        Did they receive reminders a week or two before the hearing?

    C.  Were notices sent to a cross section of the population?  To whom?

        •   Officials
        •   Organized Groups
        •   Affected Citizens
        •   Others

    D.  Were any significant groups omitted?  If so, which ones?

    E.  Were communication efforts beyond public notices used to reach
        people?  Which techniques were used?

        •   Direct mail letters
        •   Posters in prominent places
        •   Phone calls to opinion leaders
        •   Media or publicity events
        •   Other

    F.  Were background information documents available to the public at
        least 30 days before the hearing?  What was provided?

        •   Executive summary
        •   Fact sheets
        •  ...Copies of full technical reports
        •   Newsletters
        •   Other

    G.  Did participants at the hearing seem to have a sufficient
        knowledge of the issues discussed?  Had the public read the
        educational materials prepared in advance of the hearing?
        According to the participants, were the materials helpful in
        clarifying issues or explaining proposals?

    H.  How many hearings were conducted?  Were some hearings held after
        working hours?  Were hearings conducted at one location or at

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                                   -43-
            several?  Would hearing participants prefer to have hearings
            scheduled at a different time,  place, or location,  in the future?

        I.  Was the hearing organized so that there was advance scheduling of
            speakers?  Did all those who wished to speak have an opportunity
            to do so?  Did the speakers seem to represent a balance of
            perspectives?

        J.  Were the hearing examiners attentive to the various speakers
            throughout the length of the hearing?  Did they just receive
            testimony silently, or did they respond to points raised by the
            various people presenting testimony?  What was their appropriate
            role for this hearing?

        K.  Was a hearing transcript prepared?  Was it an accurate reflection
            of the hearing's events?  Did citizens know in advance that their
            comments would be part of a formal hearing transcript?

        L.  Was an "open record period" announced and explained to the
            public?  Was additional testimony submitted to the agency during
            the open period?

        M.  Was the hearing record made available to the public?  Was a
            summary of the hearing record made available to the  public?  To
            the media?  How did citizens and officials request copies of the
            transcript, if they desired one?

        N.  Did the agency prepare a responsiveness summary following the
            hearing?  Did the summary fairly reflect the points of view stated
            in written and oral testimony?


4.8  RESPONSIVENESS  SUMMARIES

    4.8.1  Focus

    A responsiveness summary is a document that summarizes the comments made
by the public and states specific agency responses to the comments.  A
responsiveness summary is used to inform citizens of how their comments
affected agency decisions.  It keeps the public informed about the status of
the permitting process.  It provides decision-makers and reviewers with an
overview of public reaction and concern.  It provides the public with a device
to track the consequences of involvement.

    Responsiveness summaries should be brief and concise documents summarizing
the comments and responses of various publics and government agencies.
Complex issues and comments should be broken, down into component elements.
Similar comments from several groups or individuals should be re-phrased into
a single comment with a single response, unless this would obscure important
variations.  Comments should be rephrased where necessary for clarity or
conciseness.  Organize the responsiveness summary so that participants can

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                                   -44-
find their comments easily and logically.  Do not avoid negative points of
view; the responsiveness summary should contain an honest assessment of public
comments.

    Some of the benefits derived through preparing responsiveness summaries
include the following:

            A.  Responsiveness summaries aid in determining if program and
                public participation objectives are being met.

            B.  They provide feedback to citizens on their comments and
                interpretation.

            C.  They help to determine if public information products are
                being read, understood, and used in a timely and meaningful
                manner.

            D.  They provide insight into the degree of success of public
                hearings and meetings.

            E.  They provide a check on the ability of innovative
                participation and information techniques to inform and elicit
                meaningful comments.

            F.  They can be used in a mid-course assessment of the public
                involvement effort; this review may suggest changes for the
                remaining phases:

            G.  The final responsiveness summary gives the participating
                public a chance to provide the agency with an evaluation of
                the public involvement effort.

            H.  They provide opportunities to organize the issues raised by
                the public and to view them from a new perspective.

            I.  They help to document the decision-making process.

    4.8.2  Techniques

            A.  The responsiveness summary (or similar report) must explain
                the type of participation activity conducted, identify
                participants and their affiliation, describe matters on which
                the public was consulted, summarize viewpoints, comments,
                criticisms and suggestions, disclose the agency's process in
                reaching a decision, set forth the agency's specific responses
                in  modifying proposed actions or rejecting public proposals,
                and the reasons for such actions.

            B.  The final responsiveness summary should describe:

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                               -45-
            1.  The number and effectiveness of meetings,
                mailings, public notices, and hearings at which
                the public was informed or consulted about the
                project.

            2.  The numbers and kinds of diverse interests which
                were involved in the project (e.g., What
                organizations and special interest groups
                provided advice?).

            3.  The extent to which citizen's views were taken
                into account in decision-making (eg., Were
                comments used or rejected?  Why?)
                                      •

            4.  The specific changes, if any, in project design
                or scope (e.g., What changes in permit
                conditions occurred as a result of citizen
                input?)
4.8.3  Evaluation
        A.  Did the responsiveness summary provide a reasonable
            description of the events, a summary of comments and points of
            view represented, and a summary of the responses of the agency?

        B.  Did the responsiveness summary provide adequate depth'to the
            comments and responses?  Would someone not present at the
            event(s) have a clear idea of what transpired?

        C.  Is there an indication that the public had an impact on the
            permit?  If so, how is this impact expressed in the
            responsiveness summary?

        D.  Who are the organizations and individuals cited in the
            summary?  Do they represent a good mix of community leaders,
            business interests, government agencies, potentially impacted
            neighbors, and the other major targetted publics?  Are any key
            groups or individuals unrepresented, and if so, why?

        E.  Do the comments suggest a strong and coordinated opinion from
            a particular perspective, such as abutters to a facility's
            site?  Should these organized and vocal views receive more
            attention than some others?

        F.  Did the comments suggest a sound understanding of the issues?
            Did the public education program contribute to a better
            understanding of the issues?

        G.  Does the summary suggest that citizens and officials had ample
            opportunity to express their views and perspectives?

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H.  Does the summary indicate that citizens and officials had
    adequate notice of meetings and hearings?

I.  Do the responses to comments seem complete and reasonable?  Do
    they make a strong and convincing argument for decisions or
    directions taken?  Are they responsive to the difficult issues
    raised by the public?

J.  Did the preparers of the summary use a design and format that
    makes it easy for the reader to find key issues, and
    differentiate between comments and responses?

K.  Did the preparers of the summary include aids such as an
    introductory description of the purpose of the summary, a
    brief description of the facility as a part of the
    introduction, and an outline of the organization of the
    summary?

L.  Did the summary include copies of sign-in sheets,
    notifications, handout material, agendas, and questionnaires
    and evaluations?  Were they helpful, or just extraneous
    material in the summary?  Would a brief description of the
    materials have proved more useful to the reader?

M.  How was the responsiveness summary distributed?  Was it sent
    to affected decision-makers?  To those people who made
    comments? . To the people who attended hearings or meetings?
    To potentially impacted groups and individuals?  To
    information repositories and libraries?

N.  Was notice of its availability sent to the news media and the
    editors of newletters with a potential interest in the project?

0.  Was the length of the summary short enough so that people
    might, in fact, read it?  On the other hand, did it seem like
    a long and weighty government report destined to be placed on
    a shelf and not read?

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                             -47-
                     5.  SPECIAL ISSUES








                             [Reserved]






5.1  PUBLIC INVOLVEMENT IN EXPOSURE ASSESSMENTS




5.2  PUBLIC INVOLVEMENT IN INCINERATOR CERTIFICATION




5.3  PUBLIC INVOLVEMENT IN CORRECTIVE ACTIONS



5.4  PUBLIC INVOLVEMENT IN SITING NEW  FACILITIES

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                                APPENDICES
     Appendix A provides a suggested format for public involvement plans.
While this format is intended to provide direction, strict adherence is not
required.  As is the case with public involvement in general,  the format
should be used flexibly, allowing for adaptation and creativity.

     Appendix B contains samples of both required and suggested RCRA permit
public involvement materials.  Here again, the format and content of these
samples is intended to be illustrative,  not prescriptive.  The reader may  use
any ideas or language contained within the samples, either verbatim or
paraphrased.  These samples have not, however, been reviewed for content,  and
are intended solely to familiarize the reader with these types of public
involvement materials.

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                                APPENDIX  A

                FORMAT FOR PUBLIC INVOLVEMENT PLANS
A.  Overview of Public  Involvement Plan

     Purpose:   This section should provide  a  general  introduction to the
     document  by briefly stating the  purpose  of  the public  involvement plan
     and the distinctive or central features  of  the public  involvement effort
    • planned for this specific facility.  It  should also  note  any special
     circumstances of the community and  the facility  that the  plan has been
     designed  to address.   This statement should not  be a repetition of
     general program goals (e.g.,  "Keep  the community informed").

     Length:  One paragraph.

B.  Capsule Facility Description

     Purpose:   This section should provide  a  reader unfamiliar with the
     facility  with the historical, geographical,  and  technical details
     necessary to understand why the  facility has been targetted for expanded
     public involvement.

     Suggested topics:  Facility location and proximity to  other landmarks;
     history of facility use and ownership; date and-type of any releases;
     public's  perception of any threat to public health or  environment, posed
     by the facility; the permitting  process  to  date;  and responsibility for
     developing permit (e.g.,  state or federal).

     Length:  One page.

C.  Community  Background

     Purpose:   This section should provide  an understanding of the community
     and its involvement with the facility.  It  should be divided into three
     parts:

     1.   Community Profile:   a discussion  of the economic  and political
          structure of the community, and key community issues and interests.

     2.   Chronology of Community Involvement:   a discussion of how the
          community has reacted to the facility  and its owners or operators in
          the past, actions taken by  citizens, and attitudes toward government
          roles and responsibilities.

     3.   Key Community Concerns:   an analysis of the major concerns of the
          community regarding the perceived risks or  problems  posed by the
          facility.

     In all three sections, but particularly  in  the last, the  focus should be
     on 'the community's perceptions of the  facility and its effects on the
     community.

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                                   A-2
     Length:  May vary between three to seven pages, depending on the history
     and level of community involvement and concern regarding the facility.

D.   Highlights of Public Involvement Program for the Facility

     Purpose:  This section should provide concrete details on public
     involvement approaches to be taken at the facility.  These approaches
     should follow directly and logically from Section C's discussion of the
     community and its perceptions of the problems posed by the facility.
     This section should not restate the goals or objectives of public
     involvement in RCRA permitting in general.  Instead, it should develop a
     strategy for communicating with a specific community.  The most effective
     avenues for communicating with the public that were identified in the
     field assessment should be emphasized.

     Suggested topics:

          •   Resources to be used in the public involvement program (e.g.,
              local organizations, meeting places);

          •   Key individuals or organizations which will play a role in
              public involvement activities;

          •   Areas of sensitivity that must be considered in conducting
              public involvement efforts.

E.   Publi'c Involvement  Techniques and  Timing                   .

     Purpose:  This section should state what public involvement activities
     will be conducted at the facility, and when they should be implemented.
     This section should also suggest additional techniques that might be
     conducted at the facility, depending on circumstances as the permit
     process proceeds, and when in the process they are likely to be most
     effective.

     Length:  Two to three pages.   Matrix format may be suitable for this
     section.

Appendices

          •   Mailing List of Interested Parties and Key Contacts

          •   Suggested Locations for Meetings and Information Repositories

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                APPENDIX B



SAMPLES OF WRITTEN MATERIALS AND PUBLICATIONS

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                          Statement Of Basis
                           STATEMENT OF BASIS

                         Columbus Steel Drum Co.

                            OHD 000-723-676
This is a statement of basis for the Draft Hazardous Waste Permit for the
subject facility.  It briefly describes the derivation of the conditions
of the draft permit and the reasons for them.  Under 40 CFR 124.7 (Title
40 of the Code of Federal Regulations, Section 124.7), the Statement of
Basis is sent to the applicant and to any other person Mho requests it.

A.  FACILITY DESCRIPTION

   1.  RCRA Activities

       Columbus Steel Drum is located in Blacklick, Ohio at 1385 Blatt Blvd.
       Columbus Steel Drum is primarily a reconditioner of used steel drums,
       but operates, as an extension of its business, a small hazardous
       waste storage facility.  The hazardous waste that is stored originates
       either from (1) residues found at the bottoms of incoming "empty"  drums,
       or (2) spent solvents used to clean out the drums.  Hazardous waste
       storage occurs only in closed drums in a specially-designated drum
       storage area, or in one underground storage tank.  The wast.es involved
       are considered "hazardous" under Federal law because they are either
       "Ignitable" (a regulatory term roughly meaning " very flammable")  or
       because they contain lead and/or cadmium.  Lead and cadmium are elements
       found in some of the paints used on the incoming barrels, and these
       elements can be toxic if ingested at sufficiently high concentrations.
       This draft permit includes all of the necessary Federal requirements to
       ensure that the wastes handled will pose no threat to public health or
       the environment.  No burial, or disposal of wastes in any manner,  occurs
       on-site.

    2.  Permit Actions Other Than RCRA

        a. Water

        Columbus Ste.el Drum does not require a National Pollutant Discharge
        Elimination System (NPDES) permit as all of their process and sani-
        tary wastewater is discharged to the public sewer owned and operated
        by the City of Gahanna.

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                                    -2-
b.  Air

    Columbus Steel Drum has applied for and received Ohio air permits  from
    the Central District Air Pollution Control  Agency limiting the
    discharge of air emissions from four point  sources.   These are:

    1)  drum lining line;
    2)  drum exterior coating line;
    3)  lid coating line; and
    4)  oxidizer.

c.  Other Federal Acts Considered

    Columbus Steel Drum will not require other  permits to satisfy any
    other Federal Acts.  The facility will  not  have an adverse effect
    on the historical, architectural, archeologlcal or cultural
    characteristics of the properties either listed or eligible for listing
    on the National Register for Historical Places.

B.  PERMIT APPLICATION

    The permit application cited herein 1s  the  August 29, 1983, permit
    application as amended on November 22,  1983, January 4,  1984, January 10,
    1984, January 23, 1984, February 1, 1984, February 22, 1984, and March  30,
    1984.

C.  PURPOSE OF THE PERMITTING PROCESS

    The purpose of the permitting process is to afford the United States
    Environmental Protection Agency (U.S. EPA), interested citizens and
    other governmental agencies the opportunity to evaluate the ability
    of the applicant to comply with the applicable hazardous wa.ste  manage-
    ment requirements under the Resource Conservation and Recovery  Act
    (RCRA).  The U.S. EPA is required to prepare a draft permit which
    sets forth all the applicable requirements  which the Agency intends
    to require the Permittee to comply during the ten year duration of
    the permit.

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                                 -3-
D.  PROCEDURES FOR REACHING A FINAL DECISION

    Under Section 7004(b) of RCRA and 40 CFR §124.10,  the  public  is  given
    forty-five days to review the application and comment  on  the  draft
    permit conditions prior to EPA taking any final  permitting  action  on
    the application for a hazardous waste management permit.  The comment
    period will begin on the date of publication of  the public  notice  in a
    major local newspaper of general  circulation. When the Regional Admini-
    strator of the U.S. EPA makes his final  permit decision,  notice  will be
    given to the applicant and each person who has submitted  written comments
    or requested notice of the final  permit decision.   If  none  of the  comments
    received requested a change in the draft permit  conditions,  the  permit will
    become effective immediately upon issuance of the permit.  If comments
    received during comment period requested changes in the draft permit
    conditions, then the final permit will become effective thirty (30) days
    after service of notice of the decision or at a  later  date  if review is
    under 40 CFR §124.19.

    The issuance of a Hazardous Waste Permit will be coordinated  by  both U.S.
    EPA and the Ohio Environmental Protection Agency (OEPA).  At  this  time,
    each Agency has regulations which require a permit to  be  issued  for all
    facilities which treat, store, or dispose of hazardous waste.  If  the
    state receives final authorization for the hazardous waste  program, the
    the state will assume the administration of the  Federal hazardous  permitting
    program and this permit.

E.  BRIEF SUMMARY OF THE PERMIT CONDITIONS

    The attached Section provides a brief summary of the permit conditions
    in the draft permit.  The column titled "Regulation" provides
    the regulatory authority for the permit condition specified in
    the column titled "Permit Condition."

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Permit
Condition       Subject

I.  STANDARD CONDITIONS

I.A.          Effect of Permit

I.B.          Permit Actions
                                             Regulation
                                              (*0
I.C.

I.D.I.

I.D.2.


1.0.3.

I.D.4.


I.D.5.

1.0.6.


1.0.7.
I.0.8.
1.0.9.
I.0.10.
I.D.ll.
1.0.12.
1.0.13.
1.0.14.


1.0.15.
SeverabHUy

Duty to Comply

Duty to Reapply


Permit Expiration

Need to Halt or Reduce
Activity not a Defense

Duty to Mitigate

Proper Operation and
Maintenance

Duty to Provide Information
Inspection and Entry
Monitoring and Records
Reporting Planned Changes
(Not Used)
Anticipated NoncompHance
Transfer of Permits
Compliance Schedules
Twenty-Four Hour Reporting
§270.4 & 270-.30(g)

§270.30(f), 270.41,
§270.42, 270.43,
§264.112 &
§264.343(d)

Standard Practice

§270.30(a)

§270.30(b) &
270.10(h)

§270.51

§270.30(c)


§270.30(d)

§270.30(e)
§270.30(h) &
§264.74(a)

§270.30(1)
§270.30(J)
§270.30(1)(1)

§270.30(1)(2)
§270.30(1)(3),
270.40 &
264.12(C)

§270.30(1)(5) i
270.33

§270.30(1)(6) &
264.56(d)(1)U)

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PermU                                                     Regulation
Condition       Subject                                     (40  CFR)

1.0.16.        Other Noncompllance                          §270.30(1)(10)

1.0.17.        Other Information                            §270.30(1)01)

I.E.           Signatory Requirement                        §270.11  &  270.30(k)

I.F.           Confidential Information                     §270.12

I.G.           Not Used

I.H.           Documents to be Maintained at                §264.13(b),
              Facility Site                                264.16(d),
                                                           §264.53(a),
                                                           264.122(3),
                                                           §264.142(a),
                                                           264.73,  §264.15(b)

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Permit
Condition
II. GENERAL
II. A.
II. 8.
II. C.
II. 0.
II. E.
II. F.
II. 6.
II. H.
II. I.I.
II. I. 2.
II. I. 3.
II. I. 4.
II. I. 5.
II. J.I.
II. 3. 2.
II. 3. 3.
II. 3. 4.
U.K.
II. L.I.
ILL. 2.
Subject
FACILITY CONDITIONS
Design and Operation of Facility
Required Notice (Not Applicable)
General Waste Analysis
Security
General Inspection Requirements
Personnel Training
General Requirements for Ignltable,
Reactive and Incompatible Waste
Location Standards (not applicable)
Required Equipment
Testing and Maintenance of Equipment
Access to Communications or Alarm System
Required Aisle Space
Local Authorities
Implementation of Contingency Plan
Copies of the Contingency Plan
Amendments to the Contingency Plan
Emergency Coordinator
Manifest System
Operating Record
Biennial Report
Regulation
(40 CFR)

§264.31

§264.13
§264.14
§264.15
§264.16
§264.17

§264.32
§264.33
§264.34
§264.35
§264.37
§264.51
§264.53
§264.54
§264.55
§264.71, §264.72,
§264.76,
§270.30(1)(7),
§270.30(1)(8)
§264.73
§264.75,
5270.30(1)
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Permit                                                     Regulation
Condition       Subject                                     (40 CFR)
II.M.I.       Closure Performance Standard                 §264.111
II.M.2.       Amendment to Closure Plan                    §264.112(b)
II.M.3.       Notification of Closure                      §264.112(c)
II.M.4.       Time Allowed for Closure                     §264.113
II.M.S.       Disposal or Decontamination of Equipment     §264.114
II.M.6.       Certification of Closure                     §264.115
II.N.         Closure Cost Estimate                        §264.142
II.0.         Financial Assurance for Facility Closure     §264.143
II.P.         Liability Requirements                       §264.147
II.Q.         Incapacity of Owners or Operators,           §264.148
              Generators or Financial -Institutions

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Permit                                                     Regulation
Condition       Subject                                     (40 CFR)
III.  STORAGE IN CONTAINERS
III.A.        Waste Identification                         §270.13(1)
III.B.        Condition of Containers               .       §264.171
III.C.        Compatibility of Wastes with Containers       §264.172
III.D.        Management of Containers                     §264.173
III.E.        Containment                                  §264.175
III.F.        Special  Requirements for Ignltable or        §264.176
              Reactive Waste
III.6.        Special  Requirements for Incompatible        §264.177
              Waste

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Permit                                                     Regulation
Condition       Subject                                     (40 CFR)
IV.  STORAGE IN TANKS
IV.A.         Waste Identification                    .     §270.13(1)
IV.B.         Design of Tanks                              §264.191
IV.C.         General Operating Requirements               §264.192
IV.0.         Special Requirements for Ignltable           §264.198
              or Reactive Waste
IV.E.         Special Requirements for Incompatible        §264.199
              Waste

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                      Letter To Library To Set Up Repository
Ms. Ruth Berman
Head Librarian
New London Public Library
406 South Pearl Street
New London, Wisconsin  54961

Dear Ms. Berman:

Per my telephone conversation on June 3,  1985,  with  Ms. Vicki Crznarich,
the United States Environmental  Protection  Agency  (U.S. EPA), Region V,
will receive comments on the permit application and  U.S. EPA's draft
permit for Curwood, Incorporated which is located  in New London.
Please make the items listed below available  for public review at the
New London Public Library as soon as they are received.  I am requesting
that you complete the enclosed verification form in  order for our Agency
to be assured that these materials were received.

  - A copy of the Curwood Incorporated permit application
  - A copy of the U.S. EPA, Region V, draft permit for Curwood
  - A copy of the U.S. EPA, Region V, Fact  Sheet for Curwood
  - A copy of the Public Notice  to be published in the New London
    Star-Press and Appleton Post Cresent  on June 27, 1985,
    advising the availability of these materials at  the Library
  - A copy of the U.S. EPA, Region V, pertinent Public Participation
    Regulations

Please retain the materials on file for public  access until further
notice.  Enclosed are self-addressed, stamped labels and envelopes
to be used for the return of these materials  upon  notice.

Thank you very much for your cooperation  in assisting our effort to
serve the public.  Please contact me at (312) 886-3715, if you have
any questions.

Sincerely,
Christine Klemme
Environmental Protection Assistant

Enclosures

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              Public Notice (Without Corrective Action)
            NOTICE OP DRAFT PERMIT AND PUBLIC HEARING


          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            REGION III
                      6TH  AND WALNUT STREETS
                 PHILADELPHIA, PENNSYLVANIA 19106 .


Date of this Notice: December 26, 1982 Public Notice No:  RCRA 2002


    The United States Environmental Protection Agency  (EPA) proposes
to issue a permit  for the  storage and incineration of  hazardous
waste to the Union Carbide Corporation for  its facility which is
located on 437 MacCorkle Avenue, SW,  South  Charleston, WV 25303.
The EPA permit is  to be issued under  the authority of  the Resource
Conservation and Recovery  Act.  This  facility has been assigned EPA
identification Number WVD  98  055  4885.

    A draft permit which contains conditions for the operation of  a
hazardous waste storage and  incineration facility has  been proposed
by EPA.  The permit  conditions are  proposed and are  open to comment
from the public.

    •Persons wishing  to comment on the draft permit must submit such
comments in writing  or provide comments at  the public  hearing
described below.   Written  comments  must be  sent to the Environmental
Protection Agency, 6th & Walnut Streets, Philadelphia, PA 19106,
Attention:  Joan Henry (3AW32) and  must be  received  by EPA on or
before February 11,  1983.

    This- is to notify the  public  that a hearing to receive comments
on the permit will be held by EPA.on  January 27, 1983  in the  South
Charleston High School located at  1 Eagle  Way, South Charleston,  WV
at 7:00 p.m.

    All comments  should address  the appropriateness  of the decision
to prepare a draft permit  or  the  appropriateness af  any condition of
the draft permit.  All comments must  raise  reasonably  ascertainable
issues and should  be accompanied  by all  reasonably available
arguments, factual grounds and supporting  material.   It is EPA's
present intent to  limit comments  at the hearing to a maximum  of  five
minutes per speaker  so persons wishing  to  participate  in the  hearing
are encouraged to  prepare  written material  to be submitted along
with  any oral comments.

    All written  comments  received by  the above date  and all comments
received at the  hearing will be  considered  in the  formulation of
final  determination  regarding the permit.   After considering  all
co^-aents and  the  requirements and policies  in RCRA and its
implementing  regulations,  the. EPA Regional  Administrator will make a
decision regarding permit  issuance.

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    The administrative record, including the application, all
data submitted by the applicant, the fact sheet, the draft
permit, naps showing the exact facility location, and comments
received, may be reviewed and copied at EPA Region III, 6th &
Walnut Streets, Philadelphia, PA 19106, between the hours of 8:30
a.m. and 4:30 p.m. Monday through Friday.  A copying machine will
be provided for public use at a charge per page.  Any person
desiring further information, copies of portions of the
administrative record, or an appointment to review the record
should contact Joan Henry at the above address or call (215)
597-8751.

    An additional copy of the application, draft permit and fact
sheet will be available for review at the West Virginia
Department of Natural Resources, Division of Water Resources,
1201 Greenbrier Street, Charleston, WV 25311.

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                   Public Notice For Corrective Action
             PUBLIC NOTICE REGARDING TENTATIVE DETERMINATION
            OF CONFORMITY WITH CORRECTIVE ACTION REQUIREMENTS
                   AND AMENDMENT OF PART 8 APPLICATION


 The  United  States Environmental Protection Agency (U.S. EPA) Region V, is
 hereby  giving notice of its tentative determination that there have been
 NO uncorrected releases of hazardous waste or hazardous constituents to
 the  environment, from any current or previous solid waste management
 units,  at the site on which CECOS International, Incorporated Processing
 Center  currently operates a storage and treatment facility at 4879 Spring
 Grove Avenue, Cincinnati, Ohio  45232.

 This tentative determination is one'of the steps U.S. EPA is undertaking
 to fulfill  its obligations under the recently enacted (November 8, 1984)
 Hazardous and Solid Waste Amendments of 1984 (HSWA; the Amendments).
 Section 206 of the Amendments requires that all hazardous waste management
 permits issued after November 8, 1984, must require corrective action for
 all  releases of hazardous waste or constituents from any solid waste
 management  unit at a treatment, storage or disposal facility seeking a
 permit.  It further requires that permits iss^d must contain schedules of
 compliance  for such corrective action (where such corrective action cannot
 be completed prior to the issuance of the permit) and assurances of
 financial responsibility for completing such corrective action.

 U.S. EPA gave notice to the public of a draft permit for CECOS International,
 Incorporated's Processing Center on August 31, 1984, and held a public
 hearing on  the draft permit on October 2, 1985.  The technical review of
 the  permit  application, coupled with the above public participation activities
 constituted the whole of the application review process prior to HSWA.

 A final determination by U.S. EPA concerning any releases of hazardous waste
for  hazardous constituents to the environment   will also decide whether
 or not  an additional condition is placed in any final RCRA permit.  Should
 U.S. EPA determine that such releases have occurred, any permit issued to
 CECOS International, Incorporated's Processing Center would require that
 corrective  action be taken to address such releases, to prevent any threat
 to public health and the environment.  Should U.S. EPA determine that
 such releases have not occurred, no such corrective action requirement
 would be necessary.

 Today's tentative determination is based on a review of files and documents
 readily available to U.S. EPA.  The review has not discovered any evident
 of any  such releases to the environment.

 Comments are hereby solicited from the public as to whether any such
 releases have ever occurred at this site.  Comments must be in writing,
 and  should  provide factual information (type of release, location, date)
 which would cause U.S. EPA to modify today's tentative determination.
 Comments must be postmarked no later than September 30, 1985, and be
 addressed to Ms. Christine Klemme, Solid Waste Branch, 5 HS-JCK-13,
 230  South Dearborn Street, Chicago, Illinois  60604.

 This notice also serves to amend the Part B application.  CECOS International,
 Incorponted's Processing Center will increase the capacities of the multi
 media filters to 22,500 gallons and the activated carbon absorbers to
 15,000  gallons in the wastewater treatment system.  This increase in
 capacities  will enable CECOS to treat a maximum of 360,000 gallons of
 wastewater  per day.

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                   Joint EPA/West Virginia Public Notice


          JOE7T PUBLIC NOTICE OF PROPOSED ISSUANCE OF A PERMIT UNDER
                    RESOURCE CONSERVATION AND RECOVERY ACT

                United States  Environmental  Protection Agency
                                  Region III
                             841  Chestnut Street
                       Philadelphia, Pennsylvania 19107

                            in  conjunction with the

                West  Virginia  Department  of  Natural Resources
                          Division of Water Resources
                      Hazardous Waste/Groundwater Branch
                            1201 Greenbrier Street
                       Charleston,  West Virginia 25311

Date of this Notice:  June 28,  1965

    The United States Environmental Protection Agency  (EPA) and the West
Virginia Department of Natural Resources  (DNR) propose to issue a permit for
storage and incineration of hazardous waste to Union Carbide Technical Center
which is located at 3200 Kanawha Turnpike, South Charleston, W, 25303.  The
EPA permit is to be issued under the authority of the Resource Conservation
and Recovery Act (RCRA) as amended by the Hazardous and Solid Waste Amendments
of 1984 (HSWA) while the State permit is to be issued under authority of the
West Virginia Code Chapter 20,  Article 5E.  The  facility has been assigned EPA
permit number WVD 06 068 2291.

    The State of West Virginia is authorized to operate a hazardous waste
management program in lieu of the Federal program  for those portions of RCRA
in effect at the time of the authorization which was prior to the enactment of
HSWA.

    HSWA imposes additional requirements on hazardomt waste management
facilities which will be administered and enforced by EPA until the State of
West Virginia receives additional authorization  for those requirements.
Therefore, EPA, the Department of Natural Resources and Air Pollution Control
Commission will determine whether to issue permits to Union Carbide.  APCC
announced its tentative determination to  issue a permit to Union Carbide on
May 16, 1985.

Facility Description

    Union Carbide Corporation has applied to West Virginia for a permit to
operate a hazardous waste incinerator, and two container storage areas at
their South Charleston Technical Center.   The incinerator is used to dispose
of many small bottles of waste laboratory chemicals and drums of waste
solvents generated by pilot plant washing operations.   In addition, the
incinerator is used to dispose of bags of experimental polyurethane foam which
are non-hazardous waste.

    The Union Carbide Corporation Technical Center  incinerator  is a Brule1
Model FG4-T20 with three chambers.   The incinerator  is  equipped with two
auxiliary  fuel burners and a liquid/gas burner.  The auxiliary  fuel burners

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are natural gas burners and are able Co provide a cocal of 3 MM Bcu/hr while
che chird burner will be used Co burn ignicable wasce (D001) and/or natural
gas and can provide up Co 5 MM Btu/hr.   The incineracor is also equipped wich
a quench (for cooling che combusion gases)  and a packed bed scrubber (for
removing HCL and oarciculace from che gases).

    The two storage units include a hazardous  waste container storage area
which will be used to score drums of waste  and laboratory samples and a
refrigerated bunker used to store relatively small quantities of reactive and
ignitable materials under controlled temperature conditions.

DNR Tentative Decision

    DNR will issue a permit for the hazardous  waste incinertor and two storage
units.

EPA Tentative Decision

    EPA will issue a separate permit wich the  following requirements:  The
permit includes "boilerplate" requirements  which must be in all EPA permits
per regulation 40 CFR 9270.30.  In addition, it addresses Section (3004u) of
the Hazardous and Solid Waste Amendments of 1984, concerning Continuing
Releases at Permitted Facilities.  A permit issued by the Administrator or
authorized representative after the date of enactment of the Hazardous and
Solid Waste Amendments of 1984 shall require corrective action for all
releases of hazardous waste or hazardous constituents from any solid waste
management unit at a facility seeking a Detroit regardless of the time at which
waste was placed in such units.  The Permittee is required by the draft permit
Co locate all present and former solid wastes  management units on the facility
property and determine whether there have been or are releases of anv
hazardous constituents from these units and submit a preliminary assessment to
EPA within thirty (30) days of the effective date of this permit.  If any
release has occurred or is occurring, the facility will be required to
undertake any activity necessary to clean up these releases.

    The preliminary assessment includes requirements to:

    1.   Identify all solid waste management units (SWMU) on a topographic map,

    2.   Provide construction design information for each SWMU.

    3.   Provide information on the waste handled at the SWMU and other
         operational data.

    4.   Provide data and descriptions of a potential release or evidence of
         no release.

    5.   Complete a site investigation of the units identified.

    6.   Submit the preliminary assessment  site  investigation report  to EPA
         within 30 days.

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Public Participation

    Persons wishing to comment on the draft permit,  permit application or
object to permit issuance must submit their comments in writing.   Duplicate
copies of comments"should be sent to the:

                        Environmental Protection Agency
                              841  Chestnut  Street
                            Philadelphia, PA 19107
                        Attention:  Robin Cole (3HW31)

                                      and

                 West  Virginia Department of Natural Resources
                          Division of Water Resources
                      Hazardous Waste/Groundwater Branch
                            1201 Greenbrier Street
                            Charleston, WV   25311
                            Attention:   Kim Fetty

    All comments received within 45 days of this public notice will be
considered in the formulation of the  final determinations regarding the
permits.

    In the event the Regional Administrator (EPA) or the Chief (Division of
Water Resources) receives written notice of opposition to the draft permit and
a request for a public hearing within the comment period referenced above, a
hearing shall be scheduled at a location convenient to the nearest population
center to the proposed  facility.  Any person requesting a hearing must raise
all reasonably ascertainable issues and must include all reasonable available
arguments, factual grounds and supporting material.  If a  public hearing is
required, public notice will be given at least 30 days before the hearing.
Any requests for a public hearing should be addressed to the Regional
Administrator,  Environmental Protection Agency Region III, 841 Chestnut
Street, Philadelphia,  PA 19107 and/or the Chief, Division of Water Resources,
West Virginia Department of Natural Resources, 1201 Greenbrier Street,
Charleston, WV 25311.

    The EPA administrative record, including the application, all data
submitted by the applicant, the fact sheet, the draft permit, maps showing the
exact facility location, and comments received, may be reviewed and copied at
EPA Region III, 841 Chestnut Street,  Philadelphia, PA 19107, between the hours
of 8:30 a.m. and 4:30 p.m. Monday through Friday.  A copying machine will be
provided for public use at a charge per page.  Any person desiring  further
information, copies of portions of the administrative record, or an
appointment to review the record should contact Joan Henry at the above
address or call  (215) 597-7259.

    A copy of the State Administrative record, including the application,
draft permit and fact sheet will be available for review at the West Virginia
Department of Natural Resources, Division of Water Resources, Public
Information Office, 1201 Greenbrier Street, Charleston, WV 25311.  Any person
desiring further information should contact Kim Fetty at the above address or
call (304) 348-7861.

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    After consideration of all written comment and of the requirements and
policies in RCRA and appropriate regulations,  the EPA Regional Administrator
and the WDNR Chief, Division of Water Resources, will make their decisions
regarding the permit issuance.  If the determinations are substantially
unchanged from those announced by this notice, the EPA Regional Administrator
and the Chief will so notify all persons submitting written comments.   If the
determinations are substantially changed,  the EPA Regional Administrator and
the Chief will issue a joint public notice indicating the revised
determinations.

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               Joint EPAIPennsylvania Public Notice
                JOINT  NOTICE  OF  PREPARATION 0? A
                 HAZARDOUS  WASTE STORAGE PERMIT
             RESOURCE  CONSERVATION' AKD  RECOVERY ACT

         United States Environmental Protection Agency
                           Region III
                      6th & Walnut Streets
                Philadelphia, Pennsylvania 19106

                    in conjunction with the
      Pennsylvania  Department of Environmental Resources
                Bureau of Solid  Waste Management
                       90 E.  Union Street
                    Wilkes-Barre, PA 18701

Date of this Notice: August 9,  1934

    The United States Environmental  Protection Agency (EPA)  and
the Pennsylvania Department of  Environmental Resources (DER)
each has reviewed a permit application for storage of hazardous
waste from Allied Corporation -  Chemical Sector - Pottsville
Plant, Pottsville, PA 17901.  EPA has made a tentative
determination to issue its permit.   DER is still reviewing the
application.  Both EPA and DER will  consider all public
comments made at this time when deciding whether to grant or
deny the permit.  The EPA draft per.-p.it was prepared under the
authority of the Resource Conservation" and Recovery Act (RCRA) ,
and the DER fact sheet was prepared  under the authority of the
Pennsylvania Solid Waste Management  Act of 1930.   The proposed
facility has been assigned EPA  draft Permit Number PAD 06 977
6185.

The Role of DER

    The State of Pennsylvania is in  the process of applying to
EPA for Final Authorization of  the State's hazardous waste
management program.  Until Final Authorization occurs, both DER
and EPA will operate parallel programs, jointly review permit
applications and issue permits,  or deny permit applications
jointly where possible.  After  that, all facilities will
operate exclusively under State-issued permits.

Allied Corporation - Chemical Sector - Pottsville Plant
Application

    Allied Corporation - Chemical Sector - Pottsville Plant has
applied for a RCRA hazardous waste permit to operate a
container storage facility at Westwood Road in Pottsville, PA.

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This facility will store hazardous waste  in containers  in a
single storage shed,  wastes stored in the  shed  will  consist  of
PVC Dry Blend Organic Liquid,  Maintenance Oils and  Solvents,
and Nylon Extrusion Wastes.

    The drums of hazardous waste will be  collected  and  stored
at this facility until sufficient quantities have been
accumulated for removal.  The storage capacity of the facility
is 192 55 gallon drums (10,560 gallons).

PUBLIC PARTICIPATION

    Persons- wishing to comment on the EPA draft  permit, DER
fact sheet or permit application should submit their  comments
in writing.  Duplicate copies of comments should be sent to:

         Sherman L. Latchaw
         Facilities Management Section (3BW32)
         EPA Region III .

         and

         David J. Lamereaux
         Regional Solid Waste Manager
         PA DER

         at the addresses indicated above.

   • All persons, including the applicant, who believe any
condition of the EPA draft permit is inappropriate  or that a
tentative decision to prepare a draft permit is  inappropriate,
must raise all reasonably ascertair.able issues and  submit all
reasonably available arguments and factual  grounds  supporting
their position, including all supporting  material,  by the close
of the public.comment period.  All supporting materials  shall
be included in full and may not be incorporated  by reference,
unless they are already part of the EPA administrative record
in this permit action or consist of State or Federal statues
and regulations, EPA documents of general applicability, or
other generally available reference materials.   Commenters
shall make supporting material not already  included in the
administrative record available to EPA/DER.  All comments must
be received within the 45-day period ending September  24, 1984.

    In the event EPA and DER receive written objection to the
draft permit conditions or permit application and a request for
a public hearing within the comment period referenced above, a
hearing shall be scheduled at a location convenient to the
population center nearest to the proposed facility.  Public
notice of the public hearing shall be given at least 30  days
before the hearing.

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PERMIT APPLICATION FILES

    EPA's administrative record,  including  the  application,  all
data submitted by the applicant,  the EPA draft  permit and  fact
sheet and maps showing the exact  facility location,  and
comments received, may be reviewed and copied at  EPA, Region
III, Sixth and Walnut Streets,  2nd Floor, Philadelphia,
Pennsylvania 19106, between the hours of 8:30 AM  and 4:30  PM
Monday through-Friday.  A copying machine will  be provided for
public use at a charge per page.   Any person desiring further.
information, copies of portions of the administrative record,
or an appointment to review the record should contact Joan
Henry at the above address or call (215) 597-8751.

    Similar information will be available' for review at the
Pennsylvania Department of Environmental Resources,  90 E.  Union
St., Wilkes-Barre, Pennsylvania 18701 between the hours of 8:00
AM and 4:00 PM Monday through Friday.  Any person desiring
further information should call Mr. David Lamereaux, Regional
Solid Waste Manager, Wilkes-Barre at (717)  826-2516.

    Copies of the permit application are also available at the
Schuylkill County Planning Commission Courthouse, Pottsville,
PA and the Norwegian Township Board of Supervisors,  Maple
Avenue, Mar Lin, PA.

    Any relevant comments received within 45 days of .the date
of this joint public notice will be considered  in the
formulation of final determinations regarding the permits.
After consideration of all written comments and of the
requirements and policies in RCRA and appropriate State
regulations, EPA and DER will make their final  decision to
either issue, modify or deny the permit.  At that time, EPA and
DER will notify the applicant and each person who has submitted
written comments or requested notice of the final permit
decision.  The final EPA permit decision will become effective
thirty (30) days after the service of notice of the decision
unless a later date is specified or review or appeal to the
Administrator of EPA is requested under 40 CFR  §124.19.  If no
comments requested a change in the draft permit,  the final
permit will become effective immediately upon  issuance.  The
final DER permit action will be published in the Pennsylvania
Bulletin and th5,s action by the Department may  be appealable to
the Environmental Hearing Board,  Third Floor,  221 North Second
Street, Harrisburg, Pennsylvania 17101,  (717)  787-3483), by any
aggrieved person pursuant to Section 1921-A of  the
Administrative Code of 1929, 71 P.S. Section 510-21; and the
Administrative Agency Law, 2 Pa.  C.S., Chapter  5A.  Appeals
must be filed with the Environmental Hearing Board within
thirty (30) days of receipt of written notice  of this action
unless the appropriate statute provides a different  time
period.  Copies of the appeal form and the regulations

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governing practice and procedure before the Board nay be
obtained from the Board.  This paragraph does not, in and of
itself, create any right of appeal beyond that permitted by
applicable statutes and decisional law.

ISSUES OUTSIDE THE SCOPE OF THE PROPOSED ACTION

    Continents are requested only on the storage facility
described above.  Comments outside the scope of this permit
will not be accepted nor acted upon.

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               Public Service Announcement Cover Letter, Script,
               And Verification Form
Ref:  8AW-WM

KQIL Radio
P.O. Box 320
Grand Junction, CO  81502


Dear Linda Sparks

     Enclosed please find a purchase order from the  Environmental  Protection
Agency (EPA)  to place a radio broadcast with  your  station.   The  announcement
gives public  notice regarding a period of review for a  hazardous waste permit
at the University of Colorado.  The announcement should be  aired on June 14
        1984.

     We have  enclosed the announcement to be  aired.   Please return the
enclosed verification form in the self-addressed envelope,  in  order to receive
payment and to allow EPA to document the time and  place of  the radio
advertisement.

     If you need further information or find  that  the announcement must be
changed in  any way, please call Mrs. Pat  Urquhartat  (303)844-6258.

     Thank  you for your assistance.

                                       Sincerely yours,
                                       Al  Broach
                                       Purchasing Agent
Enclosures

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                               RADIO ANNOUNCEMENT



                 (TO BE AIRED ON STATION KQIL ON JUNE 14, 1984)'








    FOR A PERIOD OF 45 DAYS ENDING ON JULY 30, 1984, ANY INTERESTED PERSON MAY



SUBMIT WRITTEN COMMENTS AND MAY REQUEST A PUBLIC HEARING ON THE ENVIRONMENTAL



PROTECTION AGENCY'S TENTATIVE DECISION TO DENY A HAZARDOUS WASTE PERMIT FOR



USE OF WASTE PILES AT THE GARY REFINING COMPANY'S FRUITA, COLORADO, SITE.  A



REQUEST FOR A HEARING MUST BE IN WRITING AND MUST SPECIFY THE ISSUES TO BE



RAISED.  COMMENTS,  QUESTIONS, AND REQUESTS FOR A HEARING SHOULD BE DIRECTED TO



LAWRENCE A WAPENSKY, U.S. EPA REGION VIII, WASTE MANAGEMENT BRANCH, 1860



LINCOLN STREET,  DENVER, COLORADO, 80295.



    THE ADMINISTRATIVE RECORD, WHICH CONTAINS SUPPORTING DOCUMENTS AND OTHER



INFORMATION ASSOCIATED WITH THE GARY REFINING COMPANY PERMIT DENIAL, IS



AVAILABLE FOR REVIEW DURING REGULAR BUSINESS HOURS AT THE U.S. EPA LIBRARY,



1860 LINCOLN STREET, DENVER, COLORADO,  AND AT THE COLORADO DEPARTMENT OF



HEALTH, ROOM 232,  222 SOUTH 6TH STREET,  GRAND JUNCTION,  COLORADO.

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                            VERIFICATION OF BROADCAST

    This is to verify that a Public Announcement on  the  Environmental
Protection Agency's notice of denial of a hazardous  waste storage  permit  for
Gary Refining Company was broadcast on KQIL on the following dates:
Signature
     Date

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                  Public Notice Of Facility Closing


            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    ^                           REGION VIII
' SBO'1
                            1860 LINCOLN STREET
                         DENVER. COLORADO 80295


              .   U.S. ENVIRONMENTAL PROTECTION AGENCY - REGION VIII
                         PUBLIC NOTICE OF FACILITY CLOSURE
              UNDER  THE  RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)

  Faci lity Closing

  Name :       Laramie  Energy Technology Center,  North  Site  (LETC)
             EPA I.D. #:   WY2890031874

  Location:   One mile North of Laramie on U.S.  Highway 30
             P.O. Box 3395  University Station
             Laramie, Wyoming  82071

      LETC operated  a facility, which was identified  on the RCRA  Part A  permit
  application, for storing  hazardous  waste  in  containers,  with a  proposed
  capacity of  500 gallons for 68 different  hazardous  wastes.   The  largest
  quantities  of  hazardous waste anticipated  to  be  stored at the facility were
  benzene, toluene,  and  cyclbhexane.

  Public  Comments

      The  Environmental  Protection  Agency (EPA)  announces  that until
  May 24,  1985,  public comment will  be accepted  on the  LETC closure plan, in
  accordance with hazardous waste regulations  (40CFR  265.112  (d)).  Accordina to
  these  regulations,  the  EPA Regional  Administrator will approve, modify, or
  disapprove  the plan.  Comments, questions, and written communications  should
  be  directed  to Lawrence Wapensky,  U.S.  EPA Region VIII,  Waste Management
  Branch,  1860 Lincoln Street, Denver, Colorado^ 80295,  telephone number
  (303)  293-1662.

      The  closure plan and  supporting documents  are available  for review during
  regular  business hours  (8:30 a.m.  to 4:30  p.m.)  at  the U.S.  EPA Library,
  1860 Lincoln Street, Denver, Colorado,  at  the  offices  of the  Department of
  Environmental  Quality,  Water Quality Division, Herschler Building,
  122 West 25th  Street,  Cheyenne, Wyoming,  and  the Albany  County Public  Library,
  310 South  8th  Street,  Laramie, Wyoming.

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      Public Hearing Registration Forms
xvEPA
   U.S. Environmental Protection Agency
PUBLIC MEETING REGISTRATION FORM
 NAME.
 ADDRESS.
 CITY	ZIP.
 Do you represent a municipality, agency or group?
       DYes  Which?	
       DNo
 Are you already on our mailing list?
       DYes
       DNo
&EPA
   U.S. Environmental Protection Agency
PUBLIC MEETING REGISTRATION FORM
 NAME.
 ADDRESS.
 CfTY	_ ZIP.
 Do you represent a municipality, agency or group?
        DYes  Which?	
        DNo
 Do you want to submit     Do you want to make
 written comments?        make verbal comments today?
        DYes                OYes
        DNo                 DNo

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SUGGESTED DOCUMENTS WHICH MAY BE INCLUDED IN ADMINISTRATIVE RECORD


•   EPA INVESTIGATIVE RECORDS
    •  Inspection Reports

    •  Sampling and analytical data

    •  Photographs

    •  Expert Witness Statements

    •  Statements/interviews with Facility's current or
       former employees

    •  Informants' tips or citizen complaints corroborated
       by supporting information
•   REPORTS AND INTERNAL EPA DOCUMENTS USED IN
    GENERATING OR SUPPORTING ENFORCEMENT ACTION
    •  Relevant correspondence between EPA and Respondent

    •  Records of conferences and telephone calls between
       EPA and Respondent

    Note:  Deliberative documents are exempt from
          disclosure under the FOIA
•   RCRA SOURCES
    •   RCRA Part A and part B Permit Applications

    •   SWMU Response to Reauthorization Statutory Interpretation

    •   Comprehensive Monitoring Evaluations (CMEs)

    •   Exposure Information Report

    •   RCRA Biennial Reports

    •   RCRA Waste Manifests

    •   RCRA Facility Assessment (if available)

    •   RCRA Facility Investigation (if conducted)

    •   Corrective Measures Study (if conducted)

    •   Responses to RCRA Section 3007 Information Requests

    •   Information Obtained Through RCRA Section 3013 Orders

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CORRESPONDENCE BETWEEN EPA & STATE OR
OTHER FEDERAL AGENCIES RE: ENFORCEMENT ACTIONS
AT FACILITY
CERCLA SOURCES
•  Notifications of Reportable Quantities under
   Section 103(c)

•  Responses to Section 104 Information Requests

•  CERCLA Preliminary Assessment/Site Investigation  (PA/SI)

•  Hazard Ranking System (HRS) Documentation

•  CERCLA Remedial Investigation/Feasibility Studies  (RI/FS)


OTHER FEDERAL ENVIRONMENTAL PROGRAM SOURCES
•  NPDES Permits and Permit Applications

•  Clean Air Act Permits and Permit Applications

•  TSCA/OSHA Inspections

•  DOD Installation Restoration Program Reports


STATE INVESTIGATIVE RECORDS


OTHER MISCELLANEOUS SOURCES
•  Aerial Photography

•  State/Local Well Permits

•  U.S. Geologic Survey and State Hydrogeologic Maps

•  Utilities Re: Population Data

•  Airports/ Weather Bureaus Re: Local Climate
COPIES OF ALL DOCUMENTS FILED WITH REGIONAL HEARING
CLERK OR PRESIDING OFFICER

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MAJOR COMPONENTS OF
SECTION 3008 (h) ORDER
 JURISDICTION
 FINDINGS OF FACTS
 CONCLUSIONS OF LAW AND DETERMINATIONS
 WORK TO BE PERFORMED
 LEGAL PROVISIONS
 PROCEDURAL PROVISIONS

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              COMPONENTS OF SECTION 3008fh) ORDER








I.        JURISDICTION




II.        APPLICABILITY




III.       STATEMENT OF PURPOSE




IV.       FINDINGS OF FACT




V.       CONCLUSIONS OF LAW AND DETERMINATIONS




VI.       WORK TO BE PERFORMED




VII.       QUALITY ASSURANCE




VIM.      PUBLIC COMMENT AND PARTICIPATION




IX.       [CORRECTIVE MEASURE IMPLEMENTATION]




X.       REPORTING




XI.       ON-SITE AND OFF-SITE ACCESS




XII.       SAMPLING AND DATA/DOCUMENT AVAILABILITY




XIII.      RECORD PRESERVATION




XIV.      PROJECT COORDINATOR




XV.       NOTIFICATION




XVI.      [REIMBURSEMENT OF OVERSIGHT COSTS]




XVII.      DELAY IN PERFORMANCE/PENALTIES




XVIII.      DISPUTE RESOLUTION




XIX.      FORCE MAJEURE AND EXCUSABLE DELAY

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         COMPONENTS OF SECTION 3008(h) ORDER ( CONTD)


XX.       RESERVATION OF RIGHTS

XXI.      OTHER CLAIMS AND PARTIES

XXII.      OTHER APPLICABLE LAWS

XXIII.     INDEMNIFICATION OF THE UNITED STATES

XXIV.     [FINANCIAL ASSURANCE]

XXV.     SUBSEQUENT MODIFICATION

XXVI.     RESPONDENTS RIGHT TO REVIEW ADMINISTRATIVE RECORD

XXVII.     RESPONDENTS OPPORTUNITY FOR INFORMAL CONFERENCE
         (if unilateral)

XXVIII.    WAIVER OF HEARING (if order on consent)
         RESPONDENTS RIGHT TO A HEARING (if unilateral)

XXIX.     TERMINATION AND SATISFACTION

XXX.     EFFECTIVE DATE OF ORDER

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       CHECKLIST OF SECTION 3008(h) ORDER COMPONENTS
I.   CAPTION
         Respondent, facility, city, state,  region
         Whether unilateral or on consent .
         EPA Docket number
II.   JURISDICTION
         Statement of jurisdiction
         Delegation of authority to issuing official
         Respondent's waiver of defense to validity of
         order

III.  APPLICABILITY

         Parties bound
         Copy of order to respondent's contractor, etc.
         Notice of order to successors in interest

IV.  STATEMENT OF PURPOSE

         Objective of order (e.g., RFI, CMS, CMI)

V.  FINDINGS OF FACT

         Identify Respondent

              Name
              Status (e.g., corporation, partnership)
         -    Nature o business
              Role (e.g., owner/operator)

         Describe facility

         -    Address of facility
              Nature of facility
              Facility size, layout and operations
              Specify property boundaries
              Specify current and past uses of units

         Describe information that establishes the
         elements of Section 3008(h) —

         l.   There is or has been a release

         2.   Of hazardous wastes or Appendix VIII
              hazardous constituents
                             -1-

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     3.    Into the environment

     4.    From a facility

               Hazardous waste management units
               Other solid waste management units
               Contamination beyond the facility
               boundary

     5.    Subject to interim status under Section
          3005(e)

     6.    The response is necessary to protect human
         .health or the environment (the level of
          information will depend on the level of
          response ordered)

               Quantities or concentrations of
               hazardous waste or constituents

               Migration potential

               Actual or potential receptors (i.e.,
               humans, wildlife, vegetation)

               Threat posed by hazardous waste or
               hazardous constituents to human or
               environmental receptors (e.g.,  toxic,
               carcinogenic, flammable, etc.)

CONCLUSIONS OF LAW AND DETERMINATIONS

     Based on the Findings of Fact and the
     administrative record, EPA (or the RA) has made
     the following conclusions of law and
     determinations —

     1.    Respondent is a person (Section 1004(15))

     2.    Respondent is the owner/operator of  a
          facility subject to interim status (Section
          3005(6))

     3.    There is or has been a release

     4.    Of hazardous wastes or hazardous constituents

     5.    From a Respondent's facility

     6.    Actions required by Order are necessary to
          protect human health or the environment
                        -2-

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VI.  WORK TO BE PERFORMED
         Activities to be suspended,  if applicable
         State with specificity which of the following
         actions are to be performed —
              Interim Measures
              Preliminary Investigation
              RCRA Facility Investigation
              Corrective Measure Study
              Corrective Measure Implementation
         Specify compliance schedule with firm
         deliverables tied to detailed Scope of Work to be
         attached to the Order and specifically
         incorporated in Order by reference
         Specify points at which EPA will review and
         approve/disapprove plans, activities, etc.
         Specify the following, as appropriate —
              Quality Assurance/Quality Control Procedures
         -    Sampling and Data/Document Availability
              Sample Numbers, Locations
              Sampling and Analytical Techniques
              Monitoring Requirements
              Health and Safety Procedures
         -    Operation and Maintenance Procedures
VII.  LEGAL PROVISIONS
         Record Preservation
         EPA's right to access "facility when activity is
         being conducted
         Owner/operator's user of "best efforts" to obtain
         off-site access, if applicable
         EPA's right to take split samples
         EPA's right to halt work, if necessary
         Delay in Performance/Penalties
         Dispute Resolution
         Force Majeure and Excusable Delay
                             -3-

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         Reservation of Rights — Compliance with Order
         does not relieve owner/operator of obligations
         under RCRA and other applicable laws
         Other Claims and Parties
         Actions shall be consistent with other applicable
         laws
         Indemnification of the United States
         Reimbursement of Oversight Costs
         Financial Assurance
         Termination and Satisfaction
         Effective Date of Order
VIII.  PROCEDURAL PROVISIONS
         Subsequent Modification
         Progress Reports
         Public Comment and Participation
         Respondent's right to.a hearing (if unilateral)
         Respondent's right to review administrative record
         Respondent's opportunity for an informal
         conference (Note that request for conference does
         not stay 30-day period for requesting a hearing)
         Project Coordinators
         Notification — EPA contact person
         Signatures
                            -4-

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON, D.C. 20460
February 9, 1987

MEMORANDUM
                                            OFFICE OF
                                   SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT:  Draft RCRA Section 3008 (h) Model Con^eivt Order

FROM:
TO:
Lloyd S. Guerci, Director
RCRA Enforcement Division
RCRA Enforcement Branch Chiefs
RCRA Enforcement Section Chiefs
Regions I - X
          Enclosed for comment is a draft RCRA section  3008(h)
model consent order.

          This draft order contains general language that
should be included in consent orders.  It does not  include
technical language on scopes of work for RCRA Facility
Investigations (RFIs) and Corrective Measure Studies (CMSs)
or interim'measures.  For mod.el technical language, you should
refer to other guidance documents, as applicable.   In particular,
you should be using the RFI/CMS guidance and draft  interim
measures guidances in developing the technical provisions of
orders.

          This draft may be used on an interim basis in developing
consent orders.  Please provide your comments by February 23
to Jackie Tenusak of the Office of Waste Programs Enforcement
(WH-527).

          Thank you.

cc:  Office of Regional Counsel
       Waste Branch Chiefs
       Regions I - X
   -  Gene Lucero
     Peter Cook
     Steve Heare
     Susan Bromm
     Mark Gilbertson
     John Cross
     Michael Kilpatrick

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                                    DRAFT
                               UNITED STATES

                      ENVIRDtWENTAL PROTECTION AGENCY

                             (REGION (*Nuiriber)
IN THE MATTER OF'

(*NanB of Owner/Operator)

(*Nane, address and
 EPA l.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 somewhat from Order to Order as discussed below.  The
    provision dealing with the actual activities ordered (Section VI) is
    generally the most individualized section of an order.]

                              I.  JURISDICTION

    This Administrative Order on Consent (Order) is issued pursuant to the
authority vested in the Administrator of the United States Environmental Protection
Agency (hereinafter EPA) by Section 3008(h) of the Solid Waste Disposal Act,
canmonly referred to as the Resource Conservation and Recovery Act (RCRA),  as
amended, 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.

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                                   -2-

     This Administrative Order on Consent is issued to  (corporate/individual
name)  (Respondent) Owner/Operator of  (*Name and address of Facility).
Respondent consents to (or agrees not to contest) EPA's jurisdiction to issue
this Order and waives any defense to the validity of this Order.

                             II. APPLICABILITY

     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) and EPA 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.

       4.  Respondent shall give notice of this order to any successor in
interest prior to transfer of ownership or operation of the Facility.

                          III.  STATEMENT OF PURPOSE

       In entering into this Consent Order, the mutual objectives of EPA and
(Corporate/individual name) are:  [Describe objective of Order, e.g., to
evaluate thoroughly the nature and extent of the release of hazardous
waste and hazardous constituents and to gather necessary data to support
the Corrective Measure Study.]

                            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 regulation if the State has  been authorize
pursuant to RCRA Section 3006).

       2.  Respondent is (a generator and) an owner and/or operator of a
hazardous waste management facility located (location)  (Facility).  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.).

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                                   -3-

     3.  Respondent 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 interim status
requirements as a facility], the applicable date which renders facilities
subject to the interim status requirements under Sections 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 treatment, storage, and/or disposal facility).]

     5.  In its (Name of Facility submission/notification or Part A or Part B
permit application) dated (date), Respondent identified itself as handling
the following hazardous wastes at the Facility:

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; (FC01-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]

             [Note: Include finding (if applicable) that by filing
             a Part A permit application etc., the Facility achieved
             interim status]

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 and incorporate by reference 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 Order.
             Include material relating to:

                          0 Size of facility
                          0 Facility layout
                          0 Number and type of units and operating status

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                                    -4-
                          0 Specific wastes received at specific units
                          0 Geological conditions
                          0 Ground-water flow conditions.]

              [Note: Where probative, this information should help to
             establish a connection between the units and any release
             of hazardous waste/constituents from them.  Examples of
             where this information might be obtained are: a Part A,
             Part B, Exposure Information Report, Inspection Reports,
             etc.  constitutents]

7.   Documentation of Release

              [Note:  After having described the facility, it is necessary
             to establish and document that a release of hazardous wastes
             or Appendix VIII hazardous constituents into the environment
             from the facility has occurred.  In addition, there should
             be a discussion that supports the premise of the Order that
             the response (as described and required in Section VI below),
             is necessary to protect human health or the environment.)

     Sources of release information can be:

                          0 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); and
                          0 Knowledge of disposal into units not designed,
                            constructed or operated to prevent releases.]
Example

    Ground-water monitoring wells have been installed at Respondent's
Facility.  Wells (number/identification code) are up-gradient from (describe
disposal unit/s).  Wells (number/identification code) are down gradient from
(describe disposal unit/s).   Samples of ground water from these wells have been
analyzed to determine contamination of ground water.  Samples were collected by
EPA personnel from ground-water monitoring wells, #8, #16, #24, #32.  The
results were as follows:

         Well #       Sampling Date       Organics       Concentration

             8        Aug. 14, 1985        Phenol          40,000 ppm

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                                    -5-
            16        Aug.  17,  1985        Phenol           20,000 ppm

            24        Sept. 9,  1985        phenol           32,000 ppm

            32        Sept. 9,  1985        phenol           10,000 ppm

              [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, some 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 air,
             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 EPA's if
             they support the Agency's case and are deemed reliable.]

     8.  The hazardous wastes and/or hazardous- constituents may further migrate,
from the Facility into the environment in the following pathways:

              [NOTE: The next steps link the release of hazardous wastes
             or hazardous constituents to human or environmental concerns.
             It is important to define migration pathways.  It is also
             important to note  and distinguish between actual and potential
             receptors - human, wildlife, vegetation, etc.

Example
             [NOTE:  The following is an example which can be
             modified as appropriate depending upon the level
             of certainty concerning the nature and extent of
             contamination and whether a remedy has been devised/
             implemented for the facility.]

     9.  The hazardous wastes and/or hazardous, constituents identified in
paragraphs five and seven above have the following characteristics
(describe carcinogenic/toxic characteristics).

             [Note: The Order is further strengthened by, and should
             include, a description of the toxic, carcinogenic, and
             hazardous properties of the contaminants.  In particular,
             if the Order requires extensive activies (e.g., removal of
             materials or closure of units), then the documentation of
             migration pathways and potential affects must support the
             more extensive activity required.]

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                                    -6-
     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 some day.]

     11.  Releases from Respondent's Facility (are likely to/have) migrate(d)
toward  (Describe potential and actual receptors).

     12.  The Regional Administrator, EPA Region (Number), has concluded
that the actions ordered below are necessary to protect human health or
the environment.

                  V.  CONCLUSIONS OF LAW AND DETERMINATIONS

     Based on the Findings of Fact set out above, and the administrative
record, the Regional Administrator of EPA has made the followina 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 section 3005(e) of RCRA, 42
         U.S.C. section 6952(e)..

     3.  Certain wastes and constituents thereof found at the facility are
         hazardous wastes or hazardous constituents thereof as defined by
         section 1004(5) of RCRA, 42 U.S.C. section 6903(5).  These are
         also hazardous wastes or hazardous constituents within the meaning
         of section 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 from Respondent's Facility.

     5.  The actions required by this Consent Order are necessary to protect
         human health or welfare or the environment.
                          VI. WORK TO BE PERFORMED

             [NOTE:  This is an example which should be modified as
             appropriate depending upon the situation at the facility.]

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                                    -7-
     Pursuant to Section 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
Order shall be performed in a manner consistent with, at a minimum,  [the
Interim Measures Plan  (IM), RCRA Facility Investigation (RFI) Corrective
Measures Study (CMS) plan, Corrective Measures Implementation Program Plan
(CMI), RCRA and its substantive implementing regulations, and applicable
EPA guidance documents such as the "RCRA Ground-water Monitoring Technical
Enforcement Guidance Document" (October 1986).] (Note where any of these
documents are referenced, they are to be incorporated by reference and
attached.)

    [ 1.[ Within (number) days of the effective date of this Consent Order,
(Respondent) shall submit to EPA a plan for the implementation of interim
measures (IM).  The plan and activities conducted pursuant to this Consent
Order are subject to approval by EPA and shall be performed in a manner
consistent with the scope of work contained in Attachment (number).   [This
attachment will require specific activities to be performed which mitigate
a potential threat to human health and/or the environment and/or are
consistent with and integrated into any long term solution at the facility.
A facility specific program of interim measures can be developed using the
Draft Interim Measures-Guidance and sections from the Scope of Work for the
Corrective Measure Implementation in the RCRA Corrective Action Plan.]
Attachment (number) to this Consent Order is incorporated as if fully set
forth herein.  The Interim Measures Plan shall be developed in accordance
with, at a minimum, RCRA, its implementing substantive regulations, and EPA
guidance documents.]

     2.  [The activities called for in the Interim Measures Plan shall be
designed to mitigate a potential threat to human health and/or the environment
and/or consistent with and integrated into any long term solution at the
facility.  The plan shall include explicit detailed tasks for the implementation
of Interim Measures including:  the objectives of the interim measures;
design, construction, operation, and maintenance requirement; and schedules
for design, construction and monitoring.]

     3.  [Within (number) days of the effective date of this Consent Order,
Respondent shall submit to EPA a plan for a RCRA Facility Investigation
(RFI) and Corrective Measure Study (CMS) (the "Work Plan").  The Work Plan
and activities conducted pursuant to this Consent Order are subject to
approval by EPA and shall be performed in a manner consistent with the
scope of work contained in Attachment (number).  Attachment (number) to
this Consent Order is incorporated as if fully set forth herein*  The Work
Plan shall be developed in accordance with, at a minimum, RCRA, its
implementing substantive regulations, and EPA guidance document (Specify).]

     4.  [The Work Plan shall be designed to define the presence, magnitude,
extent, direction, and rate of movement of any hazardous wastes and hazardous
constituents, within and beyond the Facility boundary.  The Work Plan shall
include explicit detailed tasks explaining how (Respondent) will determine:
(1) the presence or absence of hazardous wastes and hazardous constituents;

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                                    -8-
 (2) the nature and extent, and the rate of movement of contamination on and
off the (Respondent's) property;  (3) the possible routes of migration of
hazardous wastes and hazardous constituents on and off the facility including
characterization of the geology and hydrology of the facility which delineates
possible routes of migration; (4) the extent and potential for migration of
hazardous wastes and hazardous constituents through each of the environmental
media; and  (5) corrective measure alternatives to remediate the observed
and potential contamination.  The Work Plan shall include a specific schedule
for implementation of all activities described in the Work Plan.]

     5.  [In accordance with Section (number) herein, the Work Plan will
include: (1) a Project Management Plan; (2) a Data Collection Quality
Assurance Plan with supporting graphics and flow charts; (3) a specific
Data Management for each site/source or interpretation with cross reference;
 (4) a Health and Safety Plan; (5) a schedule for implementation of the Work
Plan, including preparation and submission of preliminary and final reports
to EPA; and  [(6) a Community Relations Plan.]  The submission of the final
report on the corrective measures study in the schedule shall be targeted
within (number) months of the date of this order.]

     6.  [Within (number) days of the effective date of this Consent order,
(Respondent) shall submit to EPA a Corrective Measures Implementation (CMI)
Program Plan.  The Program Plan and activities conducted pursuant to this
Consent Order are subject to approval by EPA and shall be performed in a
manner consistent with the Scope of Work contained in Attachment (number).
Attachment  (number) to this Consent Order is incorporated as if fully set
forth herein.  The Program Plan shall be developed in accordance with, at a
minimum, RCRA, its implementing substantive regulations, and EPA guidance
documents.  (Specify)]

     7.  [The Program Plan shall be designed to facilitate the design,
construction, operation, maintenance and monitoring of the corrective
measures at the Facility.  In accordance with Section (number) herein, the
Program Plan will 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.]

0  The operation of the corrective measure shall be targeted for within
   (number) months of the date of this order. ]

     8.  EPA shall promptly review the proposed plans and inform (Respondent)
in writing of its approval or disapproval of the Plans or any part thereof.
In the event of any disapproval, EPA shall specify the deficiencies and
reasons for disapproval and any necessary modifications.  Within (number)
days of receipt of such disapproval, (Respondent) shall have the opportunity
to meet with EPA to discuss problems with the Plans and to propose alternative

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                                    -9-
or suggestions to resolve them.  Within  (number) days of this meeting or the
receipt of EPA's disapproval of the Work Plan, whichever is later, (Respondent)
shall amend, making the changes to the Plans required by EPA, and resufcmit
the Work Plan.  The EPA approved plans shall be deemed incorporated into
and part of this Consent Order.  The final EPA approval of corrective
measures, is subject to consideration of public comment by EPA pursuant to
paragraph VII.

     9.  Within (number) days of approval or modification by EPA of the
Work Plan, (Respondent) shall commence work and implement the tasks required
by the Plans, in accordance with the requirements, specifications and
schedules stated in the Plans as. approved or modified by EPA.

     10.   (Respondent) shall provide preliminary and final IM, RFI/CMS
 and CMI reports to EPA in accordance with the schedule contained in the
 approved Plans.

     11.   EPA shall review any preliminary or final reports, and notify
 (Respondent) in writing of EPA's approval or disapproval 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 and any
 necessary modifications.  Within (number) days of receipt of such disapproval,
 (Respondent) shall have the.-opportunity to meet with EPA to discuss the
 problems with the report(s) and to propose alternatives or suggestions to
 resolve them.  Within (number) days of the date of this meeting or the
 receipt of EPA's disapproval of any report, whichever is later, (Respondent)
 shall amend and resubmit a revised report, making the changes to the
 reports required by EPA, and resubmit the work plan.  EPA approved reports
 shall be deemed incorporated into and part of this Consent Order.

     12.  (Numbers) copies of all documents, including preliminary and
 final reports, EPA approvals, EPA disapprovals, 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.

     13.  Consistent with the objectives of this order, EPA may determine
 that certain tasks, including investigatory work or engineering evaluation,
 are necessary in addition to the tasks and deliverables included in the
 Plans.  If EPA determines that such additional work is necessary, EPA
 shall request in writing that (Respondent) perform the additional work
 and shall specify the basis and reasons for EPA's determination that the
 additional work is necessary.  Within (Number) days after the receipt of
 such request, (Respondent) shall have the opportunity to meet with EPA to
 discuss the additional work EPA has requested and to propose alternatives.
 Within (Number) days of this meeting or the receipt of EPA's request for
 additional work,  whichever is later, (Respondent) shall notify EPA in
 writing of its decision whether or not to undertake the additional work.
 Any additional work performed by (Respondent) under this paragraph
 shall be performed in a manner consistent with this Consent Order.

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                                    -10-
     14.  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 investigations and remediation.  By or on
 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.

                       VII.  QUALITY ASSURANCE

      Throughout all sample collections and analysis activities, (Respondent)
 shall use EPA-approved quality assurance, quality control, and chain-of-
 custody procedures, which shall be part of proposed and approved Plans.

      In addition, (Respondent) shall:

      1.   Follow the EPA guidance for sampling and analysis contained in
 the document entitled (Title).

      2.   Consult with EPA in planning for, and prior to, field sampling
 and laboratory analysis.

      3.   Inform the EPA Project Coordinator in advance which laboratories
 will be used by (Respondent) and ensure that EPA personnel and EPA-authorized
 representatives have reasonable access to the laboratories and personnel used
 for analyses.

      4.   Ensure that laboratories used by (Respondent) for analyses perform such
analyses according to EPA methods (SW-846) Title) (date) 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.

      5.  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 analysis of a reasonable number of
known samples provided by EPA to demonstrate the quality of the analytical data.

     6.  Use the EPA guidance to evaluate all data to be used in the (Plans)
including what is collected prior to EPA approval of the (Plan) required by
Section (Number) of this Consent Order.  This evaluation shall be provided
to EPA as part of the (Plan) required by Section (Number) of this Consent
Order, and shall be updated as necessary.

                  VIII.  PUBLIC COMMENT AND PARTICIPATION

              [NOTE:  Public involvement in the review of Administrative
             Orders on Consent is an important aspect of the corrective
             action process.  If, however, prompt action is required to
             address an iminent threat to human health or the environ-
             ment, the provision should be modified. A sample provision
             outlining the public contnent process is provided below.]

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                                    -11-
       [1.  Following proposed modification or proposed approval by EPA of
a Corrective Measure Study Final Report, EPA shall make both the RCRA
Facility Investigation Final Report and the Corrective Measure Study Final
Report and EPA's justification for selecting the proposed remedy available
to the public for review and comment for at least  (number) days.

      2.  Following the public review and comment period, EPA shall notify
(Respondent) which alternative corrective measure  is selected, if any.
If the Corrective Measure proposed and tentatively selected by EPA after
review of the Corrective Measure Study Final Report is not the corrective
measure approved by EPA after consideration of public comments, EPA shall
inform (Respondent) in writing of the reasons for such decision.]

      3.  Final agency action shall occur when (Respondent) is subject to
a final order directing respondent to implement the measures in the Corrective
Measure Study Final Report.

                   [ IX. CORRECTIVE MEASURE IMPLEMENTATION]

[ If (Respondent) has complied with the terms of this consent Order, after
selection of the corrective measure, EPA shall provide a (number) day
period for negotiation of a new administrative order on consent  [or a
judicial consent decree] for implementation of the corrective measure.  If
agreement is not reached during this period, EPA reserves all rights it
has to implement the corrective measure or other remedial response and to
take any other appropriate actions under RCRA, CERCLA or any other available
legal authority.]

                              X.  REPORTING
     Beginning with the month following the effective date of this order,
(Respondent) shall provide EPA with written progress reports for
each month, by the tenth day of the following month.  At a minimum,
these progress reports shall: (1) describe the actions, progress, and status
of projects which have been taken toward achieving compliance with this
Consent Order; (2) describe all plans and activities completed during the
past month, as well as the actions which are scheduled for the next month.
(3) identify any requirements under this Order that were not completed as
provided and any problem areas and anticipated problems areas in complying
with this Consent Order; and (4) include the results of sampling and tests
and other data generated pursuant to the Work Plan(s).

                      XI.  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 necessary, the
             Respondent's responsibilities with respect to gaining access
             to third party property.  The following composite provision
             incorporates most of the relevant requirements.]

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                                    -12-
     1.   EPA and/or any EPA representative,  including EPA contractors,
are authorized to enter and freely move about all property at the Facility
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 Order; conducting such sampling and tests as EPA or its
representative 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 paragraph, and shall comply with all approved
health and safety plans.

     2.  To the extent that work required by the Vvbrk Plan must be done on
property not owned or controlled by (Respondent), (Respondent) will use
its best efforts to obtain site access agreements from the present owner(s)
of such property within (number) days of approval of the Work Plan.  Best
efforts as used in this Section 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
representatives to access such property.  Any such access agreement shall
be incorporated by reference into this Order.  In the event that agreements
for site access are not obtained within (number) days of the effective date
of this Consent Order, (Respondent) shall notify EPA regarding both the
lack of and its failure to obtain such agreements within (number) .days
thereafter.  In the event that EPA obtains access, (Respondent) shall
undertake EPA approved work on such property.  Nothing in this section
limits or otherwise affects EPA's right of access and entry pursuant to
applicable law, including RCRA and CERCLA.

               XII.   SAMPLING AND DATA/DOCUMENT AVAILABILITY

             [NOTE: Site-specific sampling and analysis requirements must
             be included in the Order, as well as provisions requiring
             the respondent to give EPA and its designated representa-
             tives access to the site and relevant records.  The following
             is a sample provision.]

     1.  (Respondent) shall make available to EPA all results of sampling,
tests, or other data generated by or on its behalf with respect to the
implementation of this Consent Order.  (Respondent) shall submit these
results in the progress reports described in Section (Number) of this
Consent Order.   Similarly, upon request, EPA will make available to
(Respondent) the results of sampling or tests generated pursuant to this
Order by EPA within (number) days after any such results or data pass EPA
quality assurance review.

     2.  (Respondent) shall notify EPA at least (number) days before
conducting any 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

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                                    -13-
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 shall notify (Respondent) at least (Number) days before
conducting any sampling under this Consent Order.

     3.  All information and data shall be available to the public except
to the extent that it is confidential business information.  Disputes over
confidentiality shall be covered by 40 CFR Part 2.  Environmental
contamination data shall not be deemed confidential.

                         XIII.  RECORD PRESERVATION
     (Respondent) agrees that it shall preserve, during the pendency of
this Consent Order and for a minimum of (Number) years after its termination,
all records and documents in its possession or in the possession of its
divisions, employees, agents or consultants or contractors which relate in
any way to this Consent Order or to hazardous waste management and disposal
at the Facility.  At the conclusion of (Number) years (Respondent) shall
then make such records available to EPA for inspection or EPA's retention
or shall provide copies of any such records to EPA.

     (Respondent) further agrees that within 5 days of the effective date of
this Order or of retaining or employing an agent, consultant or contractor,
whichever comes first, (Respondent) will enter into an agreement, to be
confirmed in writing within 15 days, with its agents, consultants and/or
contractors whereby its agents, consultants and/or contractors will be required
to maintain and preserve during the pendency of this Order and for a minimum
of (number) years after its termination, all records and documents within
their respective possession which relate in any way to this Order or to
hazardous waste management and disposal at the facility.

                         XIV.  PROJECT COORDINATOR
     1.  On or before the effective date of this Consent Order, EPA and
(Respondent) shall each designate a Project Coordinator.  Each Project
Coordinator shall be responsible for overseeing the implementation of this
Consent Order.  The EPA Project Coordinator will be EPA's designated
respresentative.  To the maximum extent possible, all conmunications between
(Respondent) and EPAr 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.  The absence of the EPA Project Coordinator from the Facility shall
not be cause for the stoppage of work.

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                                  -14-
                             XV.  NOTIFICATION
     Unless otherwise specified, reports, notices or other submissions
required under this Consent Order shall be in writing and shall be sent to:

[EPA Project Coordinator]          [Facility Project Officer]
 US EPA, Region  (Number)           Address
 Address

                   [XVI.  REIMBURSEMENT OF OVERSIGHT COSTS]
      [Beginning fron the effective date of this Order, EPA shall submit to
the Respondent (period of time) accounting and an explanation of all
oversight costs incurred with respect to this Order during the previous
year.  Within (Number) calendar days of each such accounting and explanation,
the Respondent shall remit a certified or cashiers check to the EPA for the
EPA for the amount of such costs.

     Payments to EPA shall be made to the order of the Treasurer of the
United States of America, and shall be forwarded to the U.S. Environmental
Protection Agency, [(Address) (Include appropriate post office box address)]

            [XVII.  DEIAY IN PERFORMANCE/STIPULATED PENALITIES

             [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 may, and
             usually should include escalators as the length of non-
             compliance time continues.  Short grace periods may be
             negotiated into the provision.  The following is a sample
             provision.]

     1.  Unless excused under Paragraph (number), "Force Majeure and
Excusable Delay," for each day that some work product or task completion
called for in the Work Plan is overdue, or for which (Respondent) fails to
submit a report or document or otherwise fails to achieve the requirements
of this Consent Order, (Respondent) shall pay the sums set forth below as
stipulated penalties, except as provided in paragraph (number) of this
section.  Stipulated penalties shall accrue in the following amounts:

     a.  For failure to commence work as prescribed in this Consent Order
         and EPA approved plans and reports under this order: ($) per day
         for one to seven days of delay, and ($) per day for each of delay,
         or part thereof, thereafter;

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                                  -15-
     b.  For failure to submit any preliminary and final reports, at the
         time required pursuant to this Consent Order:  (?) for the first one
         to seven days of delay, and  ($) for each day of delay thereafter;

     c.  For failure to submit other  deliverables required by this Consent
         Order:  (?) for the first one to seven days, and ($) for each
         seven-day delay, or part thereof, thereafter;

     d.  For other failure to comply  with provisions of this Consent Order
         after notice by EPA of noncompliance: ($) for  the first one to
         seven days, and ($) for each seven-day delay, or part thereof,

     2.  Any stipulated penalties paid pursuant to this Consent Order shall
be payable within (number) days after (Respondent's) receipt of written demand by
EPA, shall be paid by certified or cashier's check made payable to the
United States Treasury, and shall be  remitted to:

                  Regional Waste Management Division Director
                  U.S. Environmental  Protection Agency, Region (#)
                  Address

A letter describing the basis for the penalties shall accompany the
check.  Copies of the transmittal of  payment shall be sent to the Office of
Regional Counsel, US EPA, Region (number), Address.

     3.  The 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, nor shall payment of said penalties relieve (Respondent)
of the responsibility to comply with  this Consent Order.

     4.  Should  (Respondent) fail to  comply with a time requirement of any
task required by this Consent Order,  the period of noncompliance shall
terminate upon (Respondent's) performance of said requirement.

     5.  If (Respondent) disputes the basis for imposition of stipulated
penalities, the issue shall be resolved under the Dispute'Resolution
procedures of Section (number) of this Consent Order.

                         XVIII.  DISPUTE RESOLUTION

     1.  If (Respondent) disagrees, in whole or in part, with any EPA
disapproval or other decision or directive made by EPA pursuant to this
Consent Order, (Respondent) shall notify EPA in writing of its objections
and the bases therefore with (number) calendar days of receipt of EPA's
disapproval, decision or directive.   EPA and (Respondent) shall then have
an additional (number) calendar days  from EPA's receipt of (Respondent's)
objections to attempt to resolve the  dispute.  If agreement is reached,
the resolution shall be reduced to writing, signed by representatives of
each party and incorporated into this Consent Order.

If the parties are unable to reach agreement within this (Number) day
period, EPA shall provide a written statement of its decision to
(Respondent), which shall be incorporated into this Consent Order.

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                                    -16-
                   XIX.  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 under this Consent
Order within the time limits set forth or approved or established herein,
unless the performance is prevented or delayed solely by events which
constitute a force majeure.  A force majeure  is defined as any event arising
from causes not reasonably foreseeable and beyond the control of (Respondent)
including its consultants and contractors, 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 unanticipated or increased
costs of performance, changed economic circumstances, or normal precipitation
events.

     2.   (Respondent) must notify EPA in writing (number) days after it
becomes aware of events which it knows or should know constitute a force
majeure.  Such notice shall estimate the anticipate length of delay, including
necessary demobilization and remobilization,  its cause, measures taken or
to be taken to minimize the delay, and an estimated time table for implementation
of these measures.  Respondent shall adopt all reasonable measures to
avoid and minimize the delay.  Failure to comply with the notice provision
of this section shall be grounds for EPA to deny (Respondent) an extension
of time for performance.

     3.   If (Respondent) demonstrates to EPA that the delay has been or
will be caused entirely by circumstances not reasonably foreseeable and
beyond its control including its consultants and contractors, which could
not have been overcome by due diligence, the time for performance for that
element of the Work Plan shall be extended for a period equal to the delay
resulting from such circumstances.  This shall be accomplished through
written amendment to this Consent Order pursuant to Section XXVI.  Such an
extension does not alter the schedule for performance or completion of
other tasks required by the Work Plan unless these are also specifically
altered by amendment of the Consent Order or underlying plan.  In the event
that EPA and (Respondent) cannot agree that any delay or failure has been
or will be caused entirely 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.

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                                    -17-
                        XX.  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 ultimately
             to be insufficient to remedy the problem.  To address such
             instances, the Agency must reserve its right to reinstitute
             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)
and to request that (Respondent) perform tasks in addition to thse stated
in the Work Plan.

     2.  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 State or federal law.

     3.  EPA reserves the right to take any enforcement action pursuant to
CERCLA, RCRA, or any other available legal authority, including without
limitation, the right to seek injunctive relief, including actions to
compel implementation of corrective measures to compel compliance with
this Order, for cost recovery, for monetary penalties, and for punitive
damages.

     4.  EPA serves 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 necesary to protect public health
or welfare or the environment.  Absent an immediate hazard, EPA will not
perform work consented to herein if respondent is performing said work in a
timely and satisfactory manner.  [EPA may exercise its authority under
CERCLA to undertake removal actions or remedial actions at any time.]  In
any event, EPA reserves it 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.

                       XXI.  OTHER CLAIMS AND PARTIES

     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 not a signatory to this
Consent Order 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.

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                                     -18-
                       XXII.  OTHER APPLICABLE  IAWS

     All actions  required  to be  taken pursuant  to  this Consent Order shall
be undertaken  in  accordance with the substantive requirements of all
applicable  local, state, and federal laws and regulations.

          XXIII.  INDEMNIFICATION OF THE UNITED STATES GOVERNMENT

     (Respondent) agrees to indemify 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.

                         [XXIV.   FINANCIAL ASSURANCE]

             [NOTE: To ensure that required corrective actions are
             successfully  completed by the respondent, EPA may require
             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,  or a trust fund.]
                          XXV.  SUBSEQUENT MODIFICATION
     1.  This Consent Order may be amended by mutual agreement of EPA and
(Respondent) Such amendments shall be in writing, shall have as their
effective date the date on which they are signed by both parties, and
shall be incorporated into this Consent Order.

     2.  Any reports, plans, specifications, schedules, and attachments.
required by this Consent Order are, upon 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
failure to achieve the requirements of this Consent Order and shall subject
(Respondent) to the penalty provisions included in Section (number) of
this Consent Order and other sanctions.

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                                    -19-
     3.   No informal advice, guidance, suggestions, or comments by EPA
regarding reports, plans, specifications, schedules, and any other writing
submitted to (Respondent) will be construed as relieving (Respondent) of
its obligation to obtain written approval, if and when reguired ty this
Consent Order.
                    XXVI.  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, to the satisfaction of EPA, that the terxs of this Consent
 Order, including any additional tasks which, subject to the limitations
 set forth herein, (Respondent) has agreed to undertake, have been
 satisfactorily completed.  EPA shall issue such notice after receipt of
 notice by (Respondent) that it has completed the requirements of the
 Consent Order.

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                           NOV -4 1986
MEMORANDUM

SUBJECT:.  Draft Guidance on the \Jse of Stipulated Penalties in
          Hazardous Waste Consent Decreles

FROM:     John S. Winder, Jr.
          Assistant Enforcement Cbansei1

TO:       Addressees
,  oVcM-Waste
     I have attached for your review and comment Draft Guidance
on the Use of Stipulated Penalties in Hazardous Waste Consent
Decrees.  This document is designed to assist in the drafting
of stipulated penalties provisions in EPA consent decrees for
RCRA and CERCLA cases and to ensure the en: :>rceability o.f those
provisions.  The comments which were submic-.ed previously by the
Office of Waste Programs Enforcement (OPWE;  and the Department
of Justice have been incorporated herein.

     Please address your comments to Carolyn Tillman of my
staff, Mail Code LE-134S, Room 3219L, FTS 475-8205, by Monday,
November 24, 1986.  After your comments have been incorporated,
we will circulate a final draft for review.

Attachment

cc:  Edward E. Reich, Associate Enforcement Counsel for waste

Addressees;

Gene A. Lucero, Director, Office of Waste Programs Enforcement
John Cross, Chief, Guidance and Oversight Branch, Office of
   Waste Programs Enforcement
David T. Buente, Chief, Environmental Enforcement Section,
   U.S. Department of Justice
Nancy Firestone, Deputy Chief, Environmental Enforcement Section,
   U.S. Department of Justice
Hazardous Waste Branch Chiefs, Office of Regional Counsel,
   Regions I-X

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                       TABLE OF CONTENTS

          Guidance on the Use of Stipulated Penalties
               in Hazardous Waste Consent Decrees

                                                   Page

I.   INTRODUCTION                                    1

II.  BACKGROUND INFORMATION                          2

III. RECOMMENDATIONS
     A.  Appropriate Use of Stipulated
         Penalties
         1. In general                               3
         2. When Penalties May/May Not Accrue        5
            a.  Force Majeure Event                  5
            b.  Grace Period                         6
            c.  Dispute Resolution Period            6
            d.  Period of Correction by
                Defendant                            7
            e.  Missed Interim Deadlines             8

     R.  Appropriate Amount of Stipulated
         Penalties
         1. In general                               8
         2. Fixed Amount vs. Sliding Scale          10
         3. Per Diem Increases in Size of
            Penalty                                 10
         4. Sharing Penalties with the State        11

     C.  Collection of Stipulated Penalties
         1. In general                              11
         2. Contempt Actions and Use of
            Other Remedies                          12
         3. Limitations Period for Demanding
            Penalties                               13
         4. Procedure for Collecting Penalties      14
         5. To Whom Penalties Are Payable           14

     D.  Sample Stipulated Penalties Provisions     15


Attachments 1 and 2

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                                             DRAFT
MEMORANDUM
SUBJECT:  Guidance on the Use of  Stipulated  Penalties  in Hazardous
          Waste Consent Decrees

FROM:     Thomas L.  Adams,  Jr.
          Assistant Administrator

TO:       Offices of Regional Counsel,  Regions  I-X


INTRODUCTION

     This document provides guidance  on the  use of  stipulated

penalties in hazardous waste consent  decrees. J_/  Stipulated

penalties are .fixed sums of money that  -a defendant  agrees to

pay for violating the terms of a  decree.   Since these monies

are totally forfeited if a  violation  occurs, such penalties

can be 'an effective enforcement  tool  for compelling compliance

with a consent decree and minimizing  future  violations of and

disputes over the terms of  the decree.

     This document supplements existing guidances and  incor-

porates more recent experiences  in negotiating consent decrees.

The primary sources of the  information  contained herein are

the "Guidance for Drafting  Judicial Consent  Decrees" (Court-

ney M. Price, October 19, 1983),  "Drafting Consent  Decrees

in Hazardous Waste Imminent Hazard Cases"  (Courtney M. Price,
V This guidance does  not  apply  to  Administrative Orders on
~~  Consent since the relevant  statutes  currently provide high
per diem penalties for violations of  Administrative Orders.

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                             - 2 -

Jack W. McGraw, May 1, 1985), "Division of Penalties with State
and Local Governments" (Courtney M. Price, October 30, 1985),
the Superfund Amendments and Reauthorization Act of 1986 (SARA),
and each of the EPA hazardous waste consent decrees filed to
date.  Based on the review of those guidance documents and a
review and evaluation of each consent decree, this document has
been prepared to assist in drafting the stipulated penalties
section of future EPA hazardous waste consent decrees.
BACKGROUND INFORMATION
     Since stipulated penalties can be effective in assuring
timely coinpliance with the terms of a consent decree, it is
important that this section of the decree be carefully drafted
to protect the Agency's enforcement interests..  To understand
how stipulated penalties provisions have been drafted in the
past, the consent decrees noted above were reviewed to evaluate
their stipulated penalties provisions.  Of the 58 hazardous
waste consent decrees negotiated to date, 39 contained a sec-
tion on stipulated penalties. -The remaining 19 decrees can
be characterized generally as agreements in which the defendant
would pay civil penalties or response costs, and/or would
conduct only limited remedial activities.  The 39 decrees with
stipulated penalties (see Attachment 1) required remedial
work of a more long-term nature.   The chart in Attachment 2
summarizes the stipulated penalties section of those decrees.

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                             - 3 -


     As the chart indicates, there is much variation in the

content of the stipulated penalties section of these decrees.

Some of the stipulated penalties provisions are fairly compre-

hensive, addressing a wide range of concerns, while others

give little information beyond the amount of the penalty to

be assessed.   Since the stipulated penalties section should be

clearly drafted to ensure ease of enforcement, the following

guidelines should be used in drafting this section of the

decree.  While these recommendations should be followed in most

cases,  it is  recognized that individual cases may vary, and

one's bargaining position may ultimately dictate the character

of such provisions.

RECOMMENDATIONS

          A.   Appropriate Use of Stipulated Penalties

1.   In General

     As a general rule, all types of consent decrees should

include stipulated penalties if the decrees contain prospective

obligations for the defendant.  Consent decrees entered under

SARA, however, are required to contain stipulated penalties.

Section 121(e)(2) of SARA provides that:

   ...Each consent decree shall also contain stipulated
   penalties  for violations of the decree in an amount
   not  to exceed $25,000 per day, which may be enforced
   by either  the President or the State.  Such stipulated
   penalties  shall not be construed to impair or affect
   the  authority of the court to order compliance with
   the  specific terms of any such decree.  (Emphasis added).

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Section 122(1) of SARA also p

violations of administrative orders and consent decrees:

          (1) CIVIL PENALTIES - A potentially responsible
          party which is a party to an administrative order
          or consent decree entered pursuant to an agreement
          under this section or section 120 (relating to
          Federal facilities) or which is a party to an
          agreement under section 120 and which fails or
          refuses to comply with any term or condition
          or the order,  decree or other agreement shall be
          subject to a civil penalty in accordance with .
          section 109.

In the context of a CERCLA consent decree with mandated stipulated

penalties, both the stipulated penalties contained in the Consent

Decree and the Section 122(1) penalties may be assessed for

violation of the terms of a Consent Decree.  In those instances

where the stipulated penalty amounts contained in the consent

decree are sufficiently high to effectively deter non-compliance

with the Consent Decree V,  however, it may be appropriate to

waive 122(1) penalties.  **/
V   See discussion § C.2., pp. 12-13, infra.

**/  It should be noted that the stipulated penalties language
     in Section 121 on its face applies only to CERCLA consent
decrees.  However, the analysis regarding waiver of Section 122(1)
penalties also applies to CERCLA administrative orders that
contain stipulated penalties.   If a CERCLA administrative order
does not contain stipulated penalties, Section 122(1) civil
penalties will apply by operation of law.

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                             - 4 -






     Even consent decrees which primarily involve a "cash out"



(i.e., where the defendant pays a fixed sum of money to absolve



himself of his remedial obligations) may warrant the inclusion



of stipulated penalties.  For example, if a1 defendant agrees to



pay his cash out share in installments, stipulated penalties



should be used to penalize late payments.  If a case arises in



which the defendant must perform certain tasks in addition to



cashing out (such as providing site access or security), stipu-



lated penalties should be imposed to ensure that the defendant



performs.



     Stipulated penalties are applicable to noncompliance with



a decree as a whole, or noncompliance with only specified



requirements.   Most commonly they are applicable to delays in



performance; whether it is performance of any requirement of



the decree, or only specified performances.   The types of vio-



olations for which stipulated penalties apply will necessarily



depend on the value the negotiator places on the activity to



be performed.



     Stipulated penalties are also applicable where the defen-



dant makes a poor quality attempt at performance.  If a consent



decree requires" the performance of a task and the Agency deter-



mines that the defendant's performance is inadequate, stipulated



penalties may be assessed for failure to perform.  It is recom-



mended that Agency standards be used where applicable.  In any



event, the Agency should reserve the right to determine whether

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                             - 5 -


the quality of the defendant's performance constitutes "compli-

ance" with the standard; whether it is an Agency standard or

some other standard agreed to by the parties during the nego-

tiation process (such as "generally accepted engineering prac-

tices").  Furthermore, the burden of proof on such issues

should rest with defendant.

2.   When Penalties May/May Not Accrue

     Usually stipulated penalties begin to accrue on the date

in which complete performance of a particular task is due.

The accrual of such penalties may be stayed, however, during

designated periods or by the occurrence of certain events.

The various reasons for not assessing stipulated penalties are

noted below.

     a. Force Majeure Event

     One of the most common reasons for the nonaccrual of stip-

ulated penalties is the occurrence of a force majeure event.  A

force majeure event is one which is beyond the control of the

defendant (such as an act of God or an act of war).£/  Since

penalties generally do not accrue during this period, the

definition of a force majeure event should be narrowly drawn

and the burden placed on the defendant to show that a force
£/  Twenty-one of the 39 consent decrees surveyed specifically
    stated that stipulated penalties would not accrue during the
period of noncompliance caused by a force raajeure event.

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                             - 6 -


majeure event has occurred.2/

     b. Grace Period

     Many decrees provide for a fixed period immediately fol-

lowing notification of a violation in which the defendant has

the opportunity to explain his noncompliance and/or correct it,

and during which stipulated penalties will not accrue.  The

length of the grace periods noted to date have ranged from 3 to

30 days.  It may be acceptable to include a limited grace

period in the stipulated penalties provision to allow time for

the correction of violations due to a force majeure event.

However, the length of the grace period should be proportioned

to fit the length of time reasonably calculated to correct the

violation.  In most cases, 7 days would be an acceptable grace

period.

     c. Dispute Resolution Period V

     Usually the obligation to perform a disputed activity is

stayed when the defendant files a petition with the Court to
£/ Some decrees may reference the staying of stipulated penal-
   ties due to a force majeure event in the "Force Majeure" sec-
tion of the-decree.  However, it is recommended that the staying
of penalties be addressed in the stipulated penalties section
of the decree.

V Some decrees may reference the staying of stipulated penal-
   ties in the "Dispute Resolution" section.  As noted in foot-
note 3 above, it is recommended that the staying of stipulated
penalties during the dispute resolution period be addressed in
the stipulated penalties section of the decree.

-------
                             - 7 -

dispute a charge or resolve some disagreement.  This often
stays the assessment and payment of stipulated penalties at
that point as well.  Although this practice is discouraged, in
the event of a stay, it should be clearly indicated that if the
defendant loses the dispute, all penalties which accrued during
the period of dispute resolution will be due.
     If the dispute involves the selection of a remedy follow-
ing the performance of an RI/FS by the defendants for a CERCLA
cleanup action, a significant amount of time is often needed to
settle such disputes.  For those instances,  the stipulated
penalties section may be drafted in a manner that allows the
Agency to waive the penalties accrued during th.e pendency of
the dispute.
     d. Period of Correction by Defendant
     A typical stipulated penalties provision might indicate
that "penalties will accrue until the violation is corrected
by the defendant."  Sometimes it is uncertain, however, whether
such a statement means that penalties will cease to accrue on
the day the defendant begins to correct the violation, or
whether they continue to accrue through the last day of correc-
tion.  Indeed, one of the decrees surveyed specifically provided
that penalties cease to accrue upon initial demonstration by
the defendant of compliance with the applicable requirements of
the Decree.

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                             - 8 -

     It is preferable that stipulated penalties accrue through
the final day of correction in order to foster the Agency's
interest in timely compliance.  It is necessary, therefore,
to explicitly state this in the decree.
     e.  Missed Interim Deadlines
     Three of the decrees surveyed provided that penalties for
interim deadline violations would not be sought if the defendant
met the final completion date.  Since in many instances the
final deadline is the most important, it may not be unreasonable
to stay the penalties for violations of interim milestones.
It should be clear to the defendant, however, that if the final
deadline is missed, the penalties for interim deadline violations
will be sought in addition to those which would accrue after
the final deadline.  The "Guidance for Drafting Judicial Consent
Decrees," at 24, notes that interim deadline penalties can be
collected up front and placed into an escrow account.  This prac-
tice should be followed to encourage prompt compliance.  The
escrow agent should be authorized to turn account monies over
to the Agency in the event that the final completion date is
missed.
         B.  Appropriate Amount of Stipulated Penalties
1 .   In general
     Since stipulated penalties are intended to assure compli-
ance, they should necessarily be large enough to provide economic

-------
                             - 9 -

incentives, to the defendant to comply with the terms of the
consent decree.  The consent decrees surveyed contained stipu-
lated penalties ranging from as low as $100 per day to as high
as 35,000 per day.  It was evident from the survey that no
conclusions could be drawn regarding the specific amount which
applied to specific types of violations.  Nonetheless, in
setting the amount, one should generally take into consid-
eration the gravity of the violation, the financial condition
of the defendant, the economic savings from noncompliance, the
degree of harm or danger to the public or environment, the
reliability of the defendant based on previous cooperation or
experience,  the potential for future or continuing violations,
and the probable effectiveness of a particular size penalty.
See,  e.g., SARA § 109(a)(3).
     As noted on page 3, supra, SARA provides for stipulated
penalties as large as $25,000 per day.  In addition, Section
122(1) provides that civil penalties may be assessed in accor-
dance with Section 109 for failure to comply with a consent
decree.  Based on those two sections of the reauthorized Act,
it is clear that Congress favors a strong penalty policy in
this  area.  In particular, it is critical that the Agency set
the penalty high enough to discourage nonconpliance (i.e., refu-
sal to do the work) based on purely economic considerations.

-------
                              -10-


2.   Fixed Amount vs. Sliding Scale

     Each stipulated penalties provision should state a fixed

amount per day to be imposed.  This "sum certain" puts the

defendant on notice of the potential extent of his obligation

before a violation occurs.£/  Although a sliding scale approach

(i.e. "defendant shall pay u£ t£ $5000/day") was used in 9 of

the consent decrees surveyed, this approach should be avoided

since it makes the penalty subject to negotiation.  That in

turn destroys the economy of using stipulated penalties since

the parties must then negotiate the ultimate amount.

3.   Per Diem Increases in Size of Penalty

     Although the sliding scale approach should not be utilized,

a decree can provide that .the per diem amount of the penalty

will increase with each incremental increase in the period of

noncompliance.  For example, a fixed penalty of $5,000 per day

might increase to $10,000 per day after the 15th day of noncom-

pliance, and $15,000 per day after the 30th day.  Fourteen of the

consent decrees surveyed provided for such escalating penalties.

Presumably escalating penalties will give the defendant added

incentive to come into compliance, and it is recommended that

they be used whenever possible.
£/ To the extent that EPA reserves its rights to seek penal-
   ties under SARA § 109 or civil contempt orders, however,
the "sum certain" argument is really only an indication of
the minimum amount for which a consent decree violator may
be liable.

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                              -11-


4.   Sharing Penalties with the State

     Statutory penalties may be shared with a State if the

State has actively participated in the litigation, actively

sought such penalties, and State law provides independent

authority for the State to obtain civil penalties:

     The penalties should be divided in a proposed
     consent decree based on the level of partici-
     pation and the penalty assessment authority of
     the state or locality.  The division should
     reflect a fair apportionment based on the tech-
     nical and legal contributions of the participants,
     within the limits of each participant's statutory
     entitlement to penalties.

"Division.of Penalties with State and Local Governments" (Court-

ney M. Price, October, 30, 1985) at 3.  Similarly, stipulated

penalties may be shared with a State,£/ although the criteria

for statutory penalties set out above should be used only as a

guide in determining how to share stipulated penalties with a

State.  Since stipulated penalties are negotiated, the Agency

should have greater flexibility in sharing them with a State.

             C.  Collection of Stipulated Penalties

1.   In general

     Since Agency policy encourages aggressive post-settlement

enforcement, it is essential to the integrity of the enforce-

ment program that stipulated penalties be collected whenever
£/ Section 121 of SARA appears to support this position since
   it gives the State the authority to enforce the stipulated
penalties section.  See discussion at page 3, supra.

-------
                              -12-
noncompliance occurs.^/  Subject to paragraph "2" below, every

effort shall be made to collect stipulated penalties both to

deter future noncorapliance by defendants and to maintain the

Agency's enforcement credibility.  The Agency thus will not

hesitate to initiate a judicial action to enforce the stipu-

lated penalties provision of consent decrees.

2.   Contempt Actions and Use of Other Remedies

     If the defendant disagrees with the determination that

a violation has occurred, the Agency's right to collect stipu-

lated penalties is usually determined by the dispute resolution

process.  If the defendant loses in dispute resolution but

refuses to pay, the Agency may collect stipulated penalties by

filing a contempt" action.  See, 'United States v. City of Miami,

664 F.2d 435, 439 (5th Cir. 1981).   Despite this remedy, a

contempt suit to collect stipulated penalties is not the

sole remedy for violations of a decree.  There may be times

when the Agency will prefer other or additional remedies, such

as use of the court's equitable powers or its own right to
~I_J  The need for improved post-settlement enforcement was
    recognized recently in a study by the United States General
Accounting Office (GAO) on governmental oversight of cleanup
efforts by responsible parties.  That study indicates that in
many of the settled cases examined pursuant thereto, provisions
for the assessment of high penalties for noncorapliance are not
being enforced by the Agency.  (See "Hazardous Waste—Responsible
Party Clean Up Efforts Require Improved Oversight" (GAO, May
1986, pp. 29-30).)

-------
                              -13-


collect higher penalties under applicable statutes.  See, e.g. ,

SARA § 109, RCRA § 3008.  Thus, to preserve the Agency's rights

each section on stipulated penalties should state that these

penalties are "in addition to, and not in lieu of" the Agency's

right to other sanctions for violations of the decree.^/

3.   Limitations Period for Demanding Payments

     One of the decrees surveyed contained a limitations per-

iod for demanding the payment of stipulated penalties.  The

decree stated that if the plaintiff neither made written demand

for stipulated penalties nor gave written notice of the intent

to make such a demand within 120 days of the date it discovered

or should have discovered the noncompliance, then the plaintiff

would be deemed to have waived any claim for penalties based

upon that noncompliance.  The burden of proving a waiver was

placed upon the defendant.

     Hazardous waste consent decrees should not contain a

limitations period for demanding stipulated penalties.  The

Agency should have the right to demand stipulated penalties for

any.noncompliance discovered at any time during the term of the

decree.   The burden of proving a waiver will be placed upon the

defendant in any event, and the Agency should not have to

defend its actions every time the defendant believes that a

demand has been untimely made.
_' See, however, the discussion regarding SARA § 122(1)
   penalties at page 3A, supra.

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                               -14-






 4.    Procedure for  Collecting  Penalties



      A consent decree should not require  that  the Court be



 petitioned  in order to collect penalties.  Although many of



 the decrees provided that penalties were  payable upon written



 demand, others required that the plaintiff first petition the



 Court for relief.  This latter requirement is4unnecessary and



 unduly burdensome.



      Forfeiture is the best method of collecting penalties, and



 should be provided for in the decree.  Under this procedure,



 upon  notice of a violation the defendant  will  have a stated



 number of days to pay the penalty, petition the Court for a



 force majeure determination, or to move the issue into dipute



 resolution.



      Each decree should also state that the invocation of the



 dispute resolution procedure by the defendant  must be done "in



 good  faith," and that the Agency will seek additional remedies



 if frivolous attempts to challenge penalty assessments occur.



Moreover,  the decree should state that the defendant bears the



burden of  establishing good faith.



 5.   To Whom Penalties Are Payable



     The stipulated penalties section should indicate to whom



monies are payable.  This is particularly important for actions



brought under the Comprehensive Environmental  Response, Compen-



 sation and Liability Act of 1980 (CERCLA) , 42  U.S.C. § 9601  et_



seq.  (as amended by the Superfund Amendments and Reauthorization

-------
                                1 S-


Act of  1986), since the  "Superfund"  is partially replenished

by monies paid under that statute.   Although monies owed to

the general Treasury are paid to  the "Treasurer of the United

States," it is recommended that  stipulated penalties collected

pursuant to CERCLA violations be  made payable to the Superfund.£/

All penalties should be paid by  certified check, contain the

complete and correct address of  the  defendant, and reference

the case name and civil action number.

     D.  Sample Stipulated Penalties Provisions

     The following stipulated penalties provisions are offered

as a guide in drafting this section of the decree:

                   	. STIPULATED PENALTIES

     1. .Defendant shall pay stipulated penalties to the United
States  [and/or the State of 	]£/ for failure to comply with
[Paragraphs       of] this Consent Decree.  Compliance by Defen-
dant shall include complete adherence to  [EPA standards of work
quality or the standards mutually agreed upon during negotia-
£/ This recommendation is supported by the guidance memorandum
   on "Remittance of Fines and Civil Penalties" (Courtney M.
Price, April 15, 1985) which indicates that "all EPA Superfund
billings" should go into a lockbox bank specifically designated
for Superfund monies.  In addition, since Section 107(c)(3) of
CERCLA directs that punitive damages go into the Superfund, it
is arguable that CERCLA stipulated penalties should be deposited
there as well.

     The address for the CERCLA lockbox is:

                      EPA - Superfund
                      P.O. Box 371003M
                      Pittsburg, PA  15251

£_/ Bracketed provisions are optional.

-------
                              -16-
1Oons] and Co the specified time schedules and implementation
schedules submitted by Defendant and approved by Plaintiff and
this Court under this Decree.  [If Defendant fails to meet
interim deadlines, but meets the final completion date for the
work to be performed herein, the penalties for missed interim
deadlines may be excused.  However, such penalties will be
collected at the time of violation, pursuant to the procedures
outlined in this section, and placed into an escrow account
established by Defendant.  The escrow agreement shall direct
the escrow agent to deliver stipulated penalties to Plaintiff
upon written statement by Plaintiff that the final completion
date for all work has not been met],

     2.  Upon Plaintiff's determination that Defendant has
failed to comply with the requirements of this Decree, Plain-
tiff shall give Defendant written notification of the same and
describe the noncompliance.  [The notification shall require
Defendant to explain and correct the noncompliance within 7
days of receipt, or pay stipulated penalties].  Said notice
shall also indicate the amount of penalties due.

     3.  [If the noncorapliance is not corrected within 7 days],
all penalties owed to the United States [or State] under this
section sha-ll be payble upon demand by EPA [or the appropriate
State Agency] within 30 days of receipt of the notification of
noncompliance.   Such penalties shall be paid by certified check
to the Treasurer of the United States [or Treasurer of the
State,  or the EPA Hazardous Substances Response Trust Fund] and
mailed to [the appropriate Federal or State postal address].

     4.  All penalties begin to accrue on the day that complete
performance is due, and continue to accrue through the final day
of correction of the noncompliance.

     5.  Neither the filing of a petition to resolve a dispute
nor the payment of penalties shall alter in any way Defendant's
ultimate obligation to complete the performance required here-
under.

     6.  Defendant may dispute Plaintiff's right to the stated
amount of penalties by filing a petition with the Court in accord
with Section 	 (the "Dispute Resolution" section) herein,
within 30 days of receipt of the notification of noncompliance.
[Penalties shall accrue but will not be demanded during this
period.  If Defendant loses upon resolution, however, Plaintiff
has the right to collect all penalties which accrued prior to
and during the period of dispute.]  Defendant bears the burden
of proving that any dispute brought under this subsection is a

-------
                              -17-
good faith dispute.  If it is found that Defendant has not in-
voked the dispute resolution provisions in good faith, Plaintiff
reserves the right to seek additional or other sanctions against
Defendant.

     7.  [No penalties shall accrue for 	 days [grace period]
for violations of this Decree caused by events beyond the
control of Defendant as identified in Section     herein ("Force
Majeure" section)].  Defendant has the burden of proving force
majeure or compliance with this Decree.

     8.  If Defendant refuses to pay stipulated penalties,
Plaintiff may institute contempt proceedings in the U.S. Dis-
trict Court for relief.  However, nothing in this section
shall be construed as prohibiting, altering, or in any way
limiting the ability of Plaintiff to seek any other remedies
or sanctions available by virtue of Defendant's violation of
this Decree or of the statutes and regulations upon which it
is based.

     9.  The following stipulated penalties shall be payable per
violation per day to the United States [and/or State] for any
noncorapliance identified in subparagraph 1  above:

              Amount/Day      Period of Noncompliance

              $10,000         1st thru 14th day

              $15,000         15th thru 30th day

              $25,000         31st day and beyond

    10.  No payments made under this section shall be tax deduc-
tible.

    11.  This section shall remain in full force and effect for
the term of this Decree.

-------
                           Attachment: 1


 Hazardous Waste Consent Decrees Containing Stipulated Penalties

 1.  A& F Materials, Inc. (C.A. No. 83-3123)

 2.  Aerojet-General Corp. & Cordova Chen. Co. (1986)

 3.  Automated Ind. Disposal and Salvage Co., Inc. & Lipton
     Investment Service Co. (1980)

 4.  BASF Wyandotte Corp. & Fed. Marine Terminals, Inc. (C.A.
     80-73699)                                               .  .

 5.  Berlin Farro Liquid Incineration, Inc. (1984)

 6.  Broderick Development Corp. (May 21, 1986)

 7.  Chemcentral/Detroit Corp. (C.A. No. 80-73730)

 8.  Chemical Recovery Systems, Inc. (No. C80-1858)

 9.  Chemical Waste Management, Inc., Oakbrook, 111. (Docket
     Nos. TSCA-V-C-307, RCRA V-W-85R-019)

10.  Denver, City and County of (84-JM-1507) .

11.  Diamond Shamrock Corp. (Docket No.  V-W-3013-2, July 14,
     1983)

12.  Dusek, Franklin J., et: al. (C.A. No. CAB-80-110)

13.  Energy Systems Co. (ENSCO), 1981

14.  Environmental Conservation and Chemical Corp. et al.
     (C.A. No. IP831419C)

15.  Environmental Waste Removal, Inc. (C.A. No.  82-291)

16.  Fike Chemicals, Inc. (C.A. No. 80-2497)

17.  Gulf Coast Lead Co., (C.A. No. 80-1127, CIV-T-K)

18.  Hillsborough, County of (Case No. 80-1128)

19.  Lloyd L. Hodges, et al. (C.A. No. H-80-472)

20.  Homestake Mining Co. (1983)

21.  Hooker Chemicals & Plastics Corp.,  et al. (C.A. No. 79-988)

-------
                             - 2 -


22.  Ilco, Inc., et al. (C.A. No. CV85-H-823-5)

23.  Melvyn Ingalls, et al. (C.A. No. 85-0282-GT  (IEG))

24.  Inmont Corp., et al.  (1985)

25.  Kin-Buc, Inc., et al. (C.A. No. 79.514)

26.  Lancaster Metals Science Corp.

27.  Alvin F. Laskin & Poplar Oil Co. (C.A. No.
     C79-7594)

28.  Steve Martell, et al. (No. H-80473)

29.  Metate Asbestos Corp., et al. (No. CIV-83-309)

30.  Midwest Solvents Recovery, Inc., et al. (C.A. No. H-79-566)

31.  Occidental Petroleum Corp., et al. (No. CIV S-79-989
     MLS)

32.  Petro-Processors of La. (C.A. No. 80-358-B)

33.  Reilly Tar (1986)

34.  Seymour Recycling Corp., et al. (C.A. No. IP-80-457-C)

35.  Solvents Recovery Service of New England, Inc. (CA No.
     H-79-704 JAC)

36.  Spectron, Inc. & Paul J. Mraz (C.A. File No. HM-80-1552)

37.  Vertac Chemical Corp., et al. (No. Cr-C-80-110)

38.  W. R. Grace Co. (C.A. No. 80-748-C)

39.  Western Processing Co., Inc., e_t al. (No. C83-252M)

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                                                       ATTACHMENT 2

                            STIPULATED PENALTIES PROVISIONS IN HAZARDOUS WASTE CONSENT DECREES
                                                 (in alphabetical order)
Decree   Amt/Day
           Pen.
           Shared
           w/State
          Violations to which stipu-
            lated penalties apply
Reason for no accrual
 of stip. penalties
Other Reme-
dies Allowed
Miscellaneous
A&F Ma-  $1000
terials
         $1000
Aeroj et

(7-day
grace
period)
(14-day
grace
period)
$2!>00
for days
8-30;
$5000
there-
after

$1,000
for days
15-45;
$2500
there-
after
Yes       Failure to meet sched.
          for phazes I and III as
          per Attacliment; failure
          to notify OSC

          Failure to meet monitoring
          reqmts of Phase IV of
          Attachment

Yes       Failure to comply with
          time reqmts of section
          on Protection of Drink-
          Water Sources
          Failure to comply with
          time reqmts for submission
          of RI/FS workplan/re-
          port and design report;
          initiation of selected or
          differing remedy; notify-
          ing Ps of changes to exist-
          ing and currently planned
          facilities; submission of
          reports and monitoring
          plans for existing and
          currently planned facili-
          ties; Order to Ct regard-
          ing this Decree; notif.
          of intent to grant land
                                                                               Yes
No stip. pen. accrue it
pert, is timely and in
accord w/generally ac-
cepted scientific prac-
tices; If P neither
makes written demand for
pen. nor gives notice of
intent to make such demand
w/in 120 days of date P
discovers or should have
discovered noncompl., P
deaned to have waived
claim for pen. for that
noncompl.
Yes
D has burden of
proving P waived
claim for pen.; dis-
putes subject to
disp. resol. proc.;
pen. payable to
EPA Haz. Subst.
Resp. Trust Fund

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Decree   Amc/Day
Pen.
Shared
w/State
Violations to which stipu-
  lated penalties apply
-2-

 Reasbn tor no accrual
  of stip. penalties
                                                                                       Other Reme-
                                                                                       dies  Allowed
Miscellaneous
Auto-    $100
Ind.
          Failure to comply w/prov.
          of Decree
BASF     $500       Yes
         for days
         1-30;
         $1000
         there-
         after
Berlin   $1000      Yes

Farro
Brod-    $500
ertck

(3-day   $750
grace
period)

         $750
                              Failure to comply w/sched.
                              tor awarding contracts,
                              completing final  grading,
                              seeding and mulching shal-
                              low-rooted vegetation, com-
                              mencing and monitoring sara-
                              ling progran,  and final
                              certif. that all  work is
                              completed

                              Each day on which D fails
                              to complete properly the
                              pert', of work in  Attach-
                              ment
          Failure to submit monthly
          progress report

          Failure to submit review
          and documentation of phase
          I activities per sched.

          Failure to submit quality
          assurance/control sampling
          and laboratory analysis
          plans per sched.
                                        Force majeure; modifi-
                                        cation by Court;  notifi-
                                        cation of nature, cause
                                        and antic, length of de-
                                        lay
                                                          Yes
                              Force majeure,  exclud-
                              ing increased costs;
                              missed interim comple-
                              tion dates if final
                              date met;  timely writ-
                              ten notif. of delays
                              to OSC, SK, and Trus-
                              Trustee

                              Force majeure;  modifica-
                              tion by Ct
                                                                    No
                             Yes
                                            Pen. payable upon
                                            demand by EPA; U.S.
                                            may take into acc't
                                            magn. and dur. oL
                                            viol., and any
                                            mitig. lactors

                                            Pay upon demand co
                                            U.S. Trsr and Acty
                                            Gen. of State
                                            Disputes to be sub-
                                            mitted to Ct tor
                                            resol.; D has bur-
                                            den ot proving
                                            torce majeure
                                                                                                       Pay to KPA Haz.
                                                                                                       Subst. Kesp.  Trust
                                                                                                       Flind;  disputes sub-
                                                                                                       ject to disp. re.sol.
                                                                                                       proc.; pen. payable
                                                                                                       w/in 30 days  ot
                                                                                                       ten denand by P;  P
                                                                                                       has non-Ct-review-
                                                                                                       able option to de-
                                                                                                       mand pen.

-------
Decree   Amt/Day
           Pen.
           Shared
           w/State
Violations to which stipu-
  lated penalties apply
-3-

 Reason for no accrual
  of stip.  penalties
Other Rane-
dies Allowed
Miscellaneous
Brod-    $750
erick
(cont.)
         $1uOO
         $1000
Chen-    Up to
central  $500
         for days
         1-30;
         $1000
         there-
         after
           Yes
Chem.
Recov.
Sys.
Not to
exceed
$1500
CWM,
Oak-
hrook,
111.
$5uOO for
1 -time
viol.; or
$5000/wk
for cont.
Failure to implement EPA-
approved sampling and qual-
ity assurance plan per.
sched.

Failure to begin field stud-
ies or lab analysis per
sched.

Failure to submit phase 2
or 3 reports per sched.

Noncompl. with any sched.
set forth in plans approved
under this Consent Jgmt
 Timely notif.  of EPA and
 State of cause,  nature
 and antic,  length of
 delay
Yes
Failure to comply w/prov.
of Decree
Failure to comply w/lls
H and I (implem. of ini-
tial and continuing
groundwater programs;
closure of ponds)
                             No,  except
                             spec.  pert.
                             or inj.  re-
                             lief for im-
                             minent arid
D has burden ot
proving EPA or btate
abused discretion
in assessing pen.;
pen. payable w/in 30
days upon daiiand by
EPA or State

Pen. payable upon
demand by EPA and
upon appropriate
Motion and Order
ot Ct;  i.n exercis-
ing discretion to
have Ct impose pen. ,
EPA shal I. take into
acc't magn. and due.
ot viol., and any
other mitig. tactors

EPA must notify D
in writing ot rion-
compl.

-------
Decree   Amt/Day
           Pen.
           Shared
           w/State
Violations to which stipu-
  lated penalties apply
-4-

 Reason for no accrual
  of stip. penalties
Other Kane-
dies Allowed
Miscellaneous
CWM,
Oak-
brook ,
111.
(cont.)

(15-day
grace
period)
viol, (not
to exceed
$5000 for
1st month)
of cont.
viol.)

$500
         $100
                                                          subst. en-
                                                          dangennent
Denver,  $3000
City &
Co. of
(total
pen.
not to
exceed
$5000
per day)

(7-day
grace
period)

Diam.
Sham-
rock
$1000
$500
Up to
$500
Failure to implement emer-
gency procedures

Failure to submit
PCB status report

Failure to comply w/pro-
hibition against pumping
groundwater

Failure to comply w/sched-
ules for groundwater treat-
ment plan

Failure to comply w/report-
ing and notice reqmts,  and
reqmts to pay money
Delays in timely achieve-
ment of reqmts of this Or-
der to give certain notices,
submit RAP, implan. plan,
interim and final reports,
and copies of log sheets
 D moves Ct for hearing
 to prove compl. or
 force majeure; D files
 petition w/in 7 days of
 receipt of demand for
 payment
                                                                               Yes
 Timely notif. ot EPA and
 State describing nature,
 cause, and anti. length
 of delay; matters for
 which D is only secon-
 darily liable; force
 majeure (excluding in-
 creased costs)
Yes
               Pay  to EPA Haz.
               Subs t. Kesp. Trus I.
               Fund; iiab.  tor  pen.
               accrues thru tenni-
               pen. payable w/30
               days ot receipt  ot
               written demand,  un-
               less D moves Ct  tor
               hearing (pen.  then
               due  w/30 days  ot
               jud. resoi.)
Disputes to be  re-
solved via disp.
resol. proc.; pen.
payable upon dtsnand
to U.S. Trsr

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Decree   Amt/Day
           Pen.
           Shared
           w/State
Violations to which stipu-
  lated penalties apply
-5-

 Reason tor no accrual
  of stip.  penalties
Other Reme-
dies Allowed
Miscellaneous
Dusek
$100
for days
1-30;
$300 for
days 31-
60; $500
there-
after
ENSCO
(14-day
grace
period)
$1 ,000
for days
15-60;
$2000
thereaf-
ter
Envir.
Cons.
&
Chem.
Envir.
Waste
Removal
$1000
$200
for days
1-30;
$350
for days
31-45;
$500
for days
46-60;
$1000
there-
after
Failure to complete actions
req'd by Decree w/in times
specified
                             Yes
                              Late completion of'each of
                              major subparts of Action
                              Plan
Failure to complete pro-
perly perf. of work in ac-
cord w/sched. in Attach-
ment (incl. removal and
disposal off-site of
wastes and debris de-
tailed in Attachment)

Each day that D fails to
meet reqmts of 11s 3 and
4 or payment sched. in
II 9 (i.e., ranoval of en-
tire outdoor waste pile
at site, and transporta-
tion and disposal ot same)
               Payment ot stip.
               pen. shall not
               excuse pert.
 Missed interim  dates  it
 final completion  date
 met;  timely notif.  of
 delays caused by  force
 majeure (excluding  in-
 creased costs)
 Force majeure (incl.
 notif. of  nature,
 cause.and  antic.
 length ot  delay; delays
 caused by  unreas.  risk
 to health  or  safety
 of people  or  envir.
Yes
               Disputes to be sub-
               mitted to Lit; D has
               burden of proving
               torce majeure
Payable to U.S.
Trsr

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Decree   Amt/Day
           Pen.
           Shared
           w/State
Violations to which stipu-
  lated penalties apply
-6-

 Reasoh tor no accrual
  ot stip. penalties
Other Reme-
dies Allowed
Miscellaneous
Fike
Chan.

(30-day
grace
period)


Gulf
Coast
Lead
$350
Not to ex-
ceed $100
for days
1-30;
$250
for
days
31-60;
$500
there-
after
Hills-   $300
boro,
Co. of

(30-day  $500 for
grace    days
period   31-60;
         $1000
Hodges
there-
after

Up to
$500
Viol, of each reqmt of
Decree; Ds are late taking
action req'd under Decree
or meeting any sched. tor
remedial action
Failure to comply w/prov.
of Decree as determined
by Ct
 Force-rnajeure
                     Failure to meet deadlines
                     in Part IV-A (cap and cover
                     reqmts)

                     Part IV-B (drainage ditch
                     reqmts),  or Part IV-F
                     (County water supply)
Failure to comply with any
prov. of Decree
                                                          Yes
                             Yes
               P may institite
               contanpt proc.
               in U.S. Dist. Ct;
               D may petition Ct
               it believes P has
               breached; pen. pay-
               able to U.S. Trsr

               Pen. payable upon
               demand by EPA to
               recogn. envtr. tund
               or envir'ly bene-
               ticial project
               approved by EPA;
               P shall take into
               ace't magn. and
               dur. of viol, and
               any ml tig. factors
                                            Pen. payable
                                            promptly to U.S.
               Disputes  to be  sub-
               mitted to Ct; bur-
               den ot proving  torce
               majeure on D; pen.
               payable upond demand
               by EPA

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Decree   Amt/Day
           Pen.
           Shared
           w/State
Violations to which stipu-
  lated penalties apply
-7-

 Keason tor no accrual
  ot stip.  penalties
Other Rane-
dies Allowed
Miscellaneous
Home-    $1000
stake    lor days
Mining   1-10;
         $5000
         there-
         after
Hooker
Ilco
Up to
$5000
$1000
Ingalls, $100
Melvyn   for days
         1-7;
         $200
         for days
         8-14;
                     Viol, of any reqmt of
                     this Agreement
                                                          Yes
Unjustifiable failure to
comply w/prov. of this
Judgment
Delay in completing fully
and properly the pert', of
work or otherwise viola-
ting terms of Decree
                     F'ailure to make timely
                     payments as specified
 b'orce majeure;  Order ot
 Ct;  failure ot  EPA/State
 to use best ettorts to
 assist D in obtaining
 all authorizations which
 D unable to obtain and
 which prevent implem. ot
 this Jgmt;  not it",  of na-
 ture, cause, and antic.
 length of delays
 force majeure (excluding
 increased costs)
No
                                                          Yes
Pen. payable tol-
lowing Order ot Ct
as petitioned by P;
in determining
ant ot pen. to
assess., acc't shall
be taken ot economic
savings to Ds, de-
gree or seriousness
ot noncompl. (and
other mitig. tac-
tors); Terms ot this
•il terminate 8 yrs.
atter ettective
date ot this Jgmt

Pay to Trsr., U.S.;
Ds subject to Ct's
contempt powers tor
any and alL viol.
of Decree; Ds have
burden ot proving
torce majeure or
cump L.

Pen. payable to U.S.
Trsr by tind ot: suc-
ceeding month; Upon
payment, notice to
be given to KPA arid
DOJ

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Decree   Amt/Day
           Pen.
           Shared
           w/State
          Violations to which stipu-
            lated penalties apply
-8-

 Reason tor no accrual
  of stip. penalties
Other Kane-
dies Allowed
Miscellaneous
Ingalls,
Melvyn
(cont.)
Inmont
Corp.
$300
for days
15-21;
$400
for days
22-28;
$500
there-
after

$500
Yes       Failure to comply
          w/any deadline
Kin-Buc $1000
Lan-     $1000
caster
Laskin   $100
  &
Poplar
         $100
         $100
                     Each day of noncompl.
                     w/sched. for  construction
                     of cover and  containment
                     systan on mound,  as  ex-
                     tended or altered by weath-
                     er, Gt or EPA

                     Failure to achieve tasks
                     by dates specified in  11
                     1  and dates set  forth  in
                     plan approved therein

                     Each viol, of Part IV-B
                     [CWA and NPUES viol.]
                     Each viol,  of Part
                     [TSCA PCB viol.]
                             IV-C
                     Each viol,  of Part  IV-F
                     [Submission of quarterly
                      progress  reports]
 Force majeure; successful
 challenge to final Agency
 action; notification of
 nature, cause, and anti-
 cipated length of delay

 Force inajeure; acts by
 third parties
Yes
 Force Majeure; initial
 demonstration by D of
 compl. w/applicable
 reqmts of Decree
                                                                    Yes
Pay to U.S. Trsr
and Trsr or State
                                                                                   Pen. payable upon
                                                                                   application to Ct
                                                                                   Pay to U.S. Trsr
                                                                                   only upon motion to
                                                                                   Ct
               Pay  to U.S. Trsr
               w/in 30 days ot
               danand by P; it IJ
               tails to comply
               w/applicable reqmt
               w/180 days, obliga-
               te pay pen. shall
               cease 180 days after
               effective date ot
               limitation

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Decree   Amt/Day
           Pen.
           Shared
           w/State
          Violations to which stipu-
            lated penalties apply
                             -9-

                              Reason tor no accrual
                               of stip.  penalties
                            Other Kane-
                            dies Allowed
               Miscellaneous
Martell
$1000
for days
1-30;
$1500
there-
after
Metate   $500
Asbestos
Corp.
(10-day
grace
period)
Midwest
Solvent
Recovery
(7-day
grace
period)

Occi-
dental
Petro-
leum
$1000
Up to
$5000
State
or
U.S.
          Failure to comply w/any
          sched. set forth in plans
          approved pursuant to this
          Partial Consent Jgmt
                                                          Yes
                     Delays in completing pro-
                     perly the work;  noncompl.
                     w/maintenance prov.  of
                     Technical Appendix
          Noncompl. w/major mile-
          stones set out in Exhibit;
          delays in meeting other
          sched. in Decree
Unjustifiable failure to
comply w/prov. of this
Stip.
                                        Force majeure; delays
                                        caused by order of OSC
                              Force majeure; modif.
                              of Decree  by  Ct
                            Yes
Force majeure; Order of
Ct; notit. of nature,
cause, and antic, length
of delay;  D's ability to
obtain permits, etc.
No
                                           D may petition Ct
                                           tor relief; U has
                                           burden of proving
                                           P abused discretion
                                           in assessing pen.;
                                           pen. payable w/30
                                           days of demand by
                                           EPA

                                           Pen. shall survive
                                           Decree
               Pen. payable w/in
               14 days of demand
               by EPA
Disputes to be sub-
mitted to Ct  tor
resol.; in assessing
pen., P may take in-
to acc't economic
savings to D, degree
or seriousness of
noncompL., dur., de-
gree of endangermeut
to human health or
envir., and any
mitig. factors; pen.
payable upon  peti-
tion by P and Order
of Ct

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Decree   AiPt/Day
Pen.
Shared
w/State
Violations to which stipu-
  lated penalties apply
-10-

 Reason tor no accrual
  ot stip. penalties
Other Rene-
dies Allowed
Miscellaneous
Petro-   Not to
Proc.    exceed
of       $1000
La.      for days
         1-30;
         $5000
         there-
         after

Reilly   $500
Tar      for days
         1-30;
(15-day  $1500
grace    there-
         after

         $750
         for days
         1-30;
         $1500
         thereafter
Yes       Occurrence of any delay
          in completion of closure
          plan or supplanental
          plan ordered  by or imple-
          mented pursuant to this
          Decree
Yes       Failure to make timely
          submittals under Decree
          All other failures  to  com-
          ply w/Decree
                              Ct  finds  otherwise for
                              good  cause shown that
                              no  pen. should be paid
                             Yes
                              Filing of petition to
                              dispute determination
                              that submittal has not
                              been made;  missed in-
                              terim milestones it
                              final completion date
                              met
                             Yes, incl.
                             use ot Ct's
                             equitable
                             and inher-
                             ent powers
               Pay to U.S. Trsr
               and Trsr ot State
               w/in 30 clays ut
               Ct order
               Payable w/in 30 days
               ot receipt ot writ-
               ten notif. to Haz.
               Subst. Kesp. Trust
               Fund or linvir. Kesp.
               Compl. blind ot Trsry
               of State;  ail pay-
               ments accrue from
               date on which pert.
               was to have been
               made; ail  pen. cease
               to accrue  upon com-
               pletion ot req'd
               pert.; tiiing ot pe-
               tition does not toil
               accrual ot pen. from
               IrLrst day  ot viol.,
               but does stay obiig,.
               to make payments;
               Despite tiling ot
               petition,  D sti.fl
               oblig. to  pert.; D
               shall not  assert as
               defense invafidity
               ot these prov.; no
               payments tax deduc-
               t ib Le

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Decree   Amt/Day
           Pen.
           Shared
           w/State
Violations to which stipu-
  lated penalties apply
-11-

 Keason. for no accrual
  ot stip. penalties
Other Reme-
dies Allowed
Miscellaneous
Seymour
Recy-
cling
Corp.
$1000
Failure to complete pert'.
of work in accord w/Exhibit
 F'orce majeure (exclud.
 increased costs);  notif.
 of nature, cause,  and
 antic, length of  delay
               Disputes to he sub-
               mitted to Gt for
               resol.
Solv.    $1 uO
Recov.   for days
Serv.    1-15;
of N.E.  $500
         for days
         16-45;
         $1000
         there-
         after

Spec-    No less
tron     than $200;
         no more
(30-day  than $500
grace
period)
Vertac   $500
Chan.    for days
Corp.    1-15;
         $1000
         for days
         15-45;
         $3.000
         there-
         after
           Yes
                     Failure to comply w/time
                     reqmts of Decree , incl.
                     unplem. sched.  submitted
                     by D
                     Failure to comply w/each
                     reqmt of Decree;  delays
                     in taking action req'd
                     under Decree or under
                     any sched. for remedial
                     action
Any failure to comply
w/time reqmts of Decree,
incl. any implem.
sched. submitted by D
                              Force majeure; modifi-
                              cation by Ct
                             Yes
               Pay to U.S. Trsr
                              Force majeure
 Force majeure
Yes
P may institute
contempt proc.
in U.S. Dist. Ct;
D may petition
Ct it believes P
has breached Decree;
Pen. payable w/in
15 days to U.S. Trsr
upon written demand

Payable to U.S.
Trsr or State Ijept
ot Poll. Control
& Ecology upon Order
of Ct

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Decree   Amt/Day
Pen.
Shared
w/State
Violations to which stipu-
  lated penalties apply
-12-

 Reason tor no accrual
   ot stip. penalties
Other Reme-
dies Allowed
Miscellaneous
W. R.    $2500
Grace
          Delays in taking action
          req'd under Decree
West.    $1000
Proc.
Co.
          Delay in completing pro-
          perly the perf.  of work
          by 11/30/84,  provided that
          treatment and discharge
          cont. until 4/1/85
                              Force majeure (excluding
                              increased costs);  notit.
                              of nature, cause,  and
                              anticip.  length of delay;
                              secondary liability,  ex-
                              cept if Ct orders  other-
                              wise
                                            In assessment ot
                                            pen.,  magn. and
                                            dur. ot delay and
                                            any other initig.
                                            factors shall be
                                            taken into acc't

                                            D lias burden oi.
                                            proving force ma-
                                            jeure; Disputes not
                                            informally resolved
                                            are submitted to Ct;
                                            Despite pen.; D
                                            still oblig. to perf,
                                            ail work

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON, D.C.  20460
                           HAT  8B64
MEMORANDUM

SUBJECT:

FROM:
TO:
Final RCRA Civil Penalty Policy  /")
                                 /
Courtney M.
Assistant Administrator for Enforcement
  and Compliance
Lee M. Thomas
Assistant Administrator for Solid "Waste
  and Emergency Response

Addressees
     Attached is the Final RCRA Civil Penalty Policy which  is
being issued jointly by our Offices.

     In response to comments received from both Headquarters
and Regional Offices on the January 31, 1984, Second Draft,
the following changes- have been made:

     0  the Potential for Harm section has been rewritten
        and new examples have been included to better
        explain the concepts of major, moderate and minor;

     0  the penalties listed in the matrix have been altered
        slightly in order to fill the gaps between each cell;

     0  the RCRA Civil Penalty Policy provides for the
        calculation of the economic benefit of non-compliance.
        The economic benefit formula included in the policy
        takes into account two types of costs, avoided and
        delayed.  Definitions and examples of these terms
        have been included.  The IRS interest rates to be
        used in the formula have been included for the
        years 1980-1984;

     0  the cut-off below which no economic benefit analysis
        needs to be conducted has been reduced from $10,000
        to 32,500 because the lower figure is more appropriate
        for the RCRA program;

-------
          FINAL
RCRA CIVIL PENALTY POLICY
       May  8,  1984

-------
                         TABLE OF CONTENTS

                                                        Page

   I.  Introduction 	1

  II.  Relationship to Agency Penalty Policy 	3

 III.  Summary of the Policy 	3

  IV.  Administrative Record 	5

   V.  Determination of Gravity-Based Penalty 	5

      A. Potential for Harm 	6

      B. Extent of Deviation from Requirement 	8

      C. Penalty Assessment Matrix 	10

  VI.  Multiple and Multi-Day Penalties 	11

      A. Assessing Multiple Penalties 	11

      B. Assessing Multi-Day Penalties	12

 VII.  Effect of Economic Benefit of Noncorapliance 	..12

      A. Types of Economic Benefit 	14

      B. Calculation of Economic Benefit •	14

VIII.  Adjustment Factors and Effect of Settlement 	16

      A. Adjustment Factors 	16

         (1) Good faith efforts to comply/lack of good
               faith (Degree of Cooperation/noncooperation).17

         (2) Degree of willfulness and/or negligence 	17

         (3) History of noncompliance 	18

         (4) Ability to pay 	20

         (5) Other unique factors 	20

      B. Effect of Settlement	21

  IX.  Appendix: Penalty Computation Worksheet 	22

   X.  Hypothetical Applications of the Penalty Policy	24

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                    RCRA CIVIL PENALTY 'POLICY

I.   INTRODUCTION

     To respond Co che problem of improper management of hazardous
waste, Congress amended che Solid Waste Disposal Ace with che
Resource Conservation and Recovery Act (RCRA) of 1976.  Although
the Act has several objectives, Congress' overriding purpose in
enacting RCRA was to establish the statutory framework for a
national system that would ensure the proper management of
hazardous waste.

     Section 3008(a) of RCRA, 42 U.S.C. §6928(a), provides that
if any person is in violation of a requirement of Subticle C,
che Administrator of the Environmental Proceccion Agency (EPA)
may, among other options, issue an order requiring compliance
immediately or within a specified time period.  Section 3008(c),
42 U.S.C. §6928(c), provides that any order issued may assess a
penalty, taking into account:

          0    the seriousness of the violation, and

          0    any good faith efforts Co comply with the applicable
               requirements.

Section 3008(g)  further provides EPA with the authority to assess
civil penalties of up to $25,000 per day of violation.

     This document sets forth the Agency's policy for assessing
administrative penalties under RCRA, 42 U.S.C. §6901  et seq.*/
The purpose of the policy is to assure that RCRA civiT~penalties
are assessed in a fair and consistent manner;  that penalties are
appropriate for the gravity of the violation committed; that
economic incentives for noncompliance wich RCRA are eliminated;
Chat persons are deCerred from commicting RCRA violations;  and
that compliance is achieved.

     The policy provides internal guidelines Co aid EPA
compliance/enforcement personnel in assessing appropriace
penalties.   It also provides a mechanism whereby compliance/
enforcement personnel may, within specified boundaries, exercise
discretion in negotiating administrative consent agreements and
orders, and otherwise modify che proposed penalcy when special
circumstances warrant it.  The policy will be supplemented as
necessary.
*/   Because there is no RCRA judicial civil penalty policy,
     compliance/enforcement personnel may rely on this
administrative civil penalcy policy in assessing penalties in
judicial cases.

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                             - 2 -


     This document does noc discuss whether assessment of an
administrative civil penalty is the correct enforcement  .
response to a particular violation.  Rather, this document
focuses on determining what the proper civil penalty should be
once a decision has been made that a civil penalty is the proper
enforcement remedy to pursue.  For guidance on when to assess
administrative penalties, consult the following:

     0    Guidance on Developing Compliance Orders Under Section
          3008 of RCRA, July 7, 1981;*/

     0    RCRA; Section 3005(e); Continued Operation of Hazardous
          Waste Facilities by Owners or Operators Who Have
          Failed to Achieve Interim Status, July. 31,  1981;

     0    Guidance on Developing Compliance Orders Under Section
          3008 of RCRA; Enforcement of Ground-Water Monitoring
          Requirements at Interim Status Facilities,  January 22,
          1982;*/

     0    Guidance on Developing Compliance Orders Under Section
          3008 of RCRA; Enforcement of the Financial Responsibility
          Requirements Under Subpart H of 40 CFR Parts 264 and 265,
          October 6, 1982;*/

     0    Guidance on Developing Compliance Orders Under Section
          3008 of RCRA; Failure to Submit and Submittal of
          Incomplete Part B Permit Applications, September 9, 1983.

The discussions of specific penalty assessments set out in the
second and fifth guidances, above, are superseded by this docu-
ment.  The portions of these guidances which do not address
specific penalty assessments remain operative.

     The RCRA Civil Penalty Policy is immediately applicable and
should be used to calculate penalties for all RCRA administrative
actions instituted after the date of the policy, regardless of
the date of violation.
*/   These three guidances classify RCRA violations as either
     Class I, II, or III, and state that Section 3008 compliance
orders should generally be issued to address Class I, Class II,
and continued or flagrant Class III violations.  The Agency is in
the process of developing a RCRA enforcement response policy which
could change the current scheme for classifying and responding to
violations.  Compliance/enforcement personnel should continue to
rely on the existing guidance until the new enforcement response
policy is issued.

-------
                             - 3 -
     The procedures set out in this document are  intended  solely
for the guidance of government personnel.  They are not  intended
and cannot be relied upon to create rights, substantive  or'proce-
dural, enforceable by any party  in litigation with the United
States.'  The Agency reserves the right to act at  variance  with
this policy and to change it at  any time without  public  notice.

II.  RELATIONSHIP TO AGENCY PENALTY POLICY

     The RCRA Civil Penalty Policy sets forth a system of  penalty
assessment consistent with the established goals  of the  Agency's
new civil penalty policy which was issued on February 16,  1984.
These goals consist of:

          0    Deterrence;

          0    Fair and equitable treatment of the regulated
               community; and

          0    Swift resolution of environmental  problems.

The RCRA penalty policy also adheres to the Agency policy's
framework for assessing civil penalties by:

          0    Calculating a preliminary deterrence amount
               consisting of a gravity component;

          0    Determining any economic benefit of noncompliance;
               and

          0    Applying adjustment factors to account for
               differences between cases.

III. SUMMARY OF THE POLICY

     The penalty calculation system consists of (1) determining a
gravity-based penalty for a particular violation,  (2) considering
economic benefit of noncompliance where appropriate,  and
(3) adjusting the penalty for special circumstances.   Two
factors are considered in determining the gravity-based  penalty:

          0    potential for harm;  and

          0    extent of deviation from a statutory or regulatory
               requirement.

     These two factors constitute the seriousness  of a violation
under RCRA, and have been incorporated into the following  penalty
matrix from which the gravity-based penalty will be chosen:

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                               - 4 -


                               MATRIX

                Extent of Deviation from Requirement
Potential
  for
 Harm

MAJOR
MODERATE
MINOR
MAJOR
325,000
to
20,000
$10,999 •
to
8,000
$2,999
to
1 ,500
MODERATE
$19,999
to
15,000
$7,999
to
5,000
$1 ,499
to
500
MINOR
$14,999
to
11 ,000
$4,999
to
3,000
$499
to
100
       Where a company has derived significant savings by its.
  failure to comply with RCRA requirements, the amount of economic
  benefit from noncompliance gained by the violator will be
  calculated and added to the gravity-based penalty.  A formula
  for computing economic benefit is included.

       After determining the appropriate penalty based on gravity
  and, -where appropriate, economic benefit, the penalty may be
  adjusted upwards or downwards to reflect particular circumstances
  surrounding the violation.  The factors  that should be considered
  are:

            0    Good faith efforts to comply/lack of good faith;

            0    Degree of willfulness and/or negligence;

            0    History of noncompliance;

            0    Ability to pay; or

            0    Other unique factors.

  These factors (with the exception of factors which increase the
  penalty such as history of noncompliance) generally will be

-------
considered after proposing the penalty  in  the complaint,  i.e..
during the settlement stage.  However,  the Regions have  the
discretion to apply the adjustment  factors when determining  the
initial penalty, if the information supporting adjustment  is
available.

     The policy also discusses the appropriate assessment  of
multiple and multi-day penalties.

     A detailed discussion of the policy follows.  In addition,
this document includes a few hypothetical  cases where the  step-
by-step assessment of penalties  is illustrated.  The steps
included are choosing the correct penalty  cell on the matrix,
calculating the economic benefit of noncompliance,  where appro-
priate, and adjusting the penalty assessment before and  after
issuance of the complaint.

IV.  ADMINISTRATIVE RECORD

     In order to support the penalty proposed in the complaint,
compliance/enforcement personnel must include in the case  file an
explanation of how the proposed penalty amount was calculated.
The case file must also include a justification of any adjust-
ments made after issuance of the complaint.  In ongoing  cases,
the assessment rationale would be exempt from the mandatory
disclosure requirements of the Freedom of  Information Act,
5 U.S.C.' 552, because producing such records would interfere
with enforcement proceedings, 40 CFR §2.118(a)(7).   Nevertheless,
the Agency may elect to release penalty information after  a com-
plaint has been issued.  Once an enforcement action has  been
completed, the justification of the penalty assessment would
no longer be exempt from disclosure.

     A penalty computation worksheet to be included in the case
file is attached.  (See:  Appendix.)

V.   DETERMINATION OF GRAVITY-BASED PENALTY

     RCRA Section 3008(c)  states that the seriousness of the
violation must 'be taken into account in assessing penalties.  The
gravity-based penalty is  determined according to the seriousness
of the violation.  The seriousness of a violation is based on two
factors which are used to assess the appropriate gravity-based
penalty:

          0    potential  for harm; and

          0    extent of deviation from a statutory or regulatory
               requirement.

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                             - 6 -

     A.   Potential for Harm

     The RCRA requirements were promulgated in order to prevent
harm to human health and the environment.  Thus, noncompliance with
any RCRA requirement could result in a situation where there  is a
potential for harm.  The potential for harm resulting from a  viola-
tion may be determined by:

          0    the likelihood of exposure to hazardous .waste  posed
               by noncompliance, or

          0    the adverse effect noncompliance has on the statu-
              .tory or regulatory purposes or procedures for
               implementing the RCRA program.

     By answering questions like the following/"compliance/
enforcement personnel can determine_ the likelihood of exposure
in a particular situation:

          0    What.is the quantity of waste?

          0    Is human life or health potentially threatened
               by the violation?

          0    Are animals potentially threatened by the
               violation?

          0    Are any environmental media potentially threatened
               by the violation?

     There may be violations where the likelihood of exposure
resulting from the violation is small, difficult to quantify, or
nonexistent, but which nevertheless may disrupt the RCRA program
(e_.£_*_,  failure to comply with financial requirements).  This
disruption may also present a potential for harm to human health
or the environment, due to the adverse effect noncompliance can
have on the statutory or regulatory purposes or procedures for
implementing the RCRA program.

     For each of the above considerations -- likelihood of exposure
and adverse effect on implementing the RCRA program -- the emphasis
is placed on the potential harm posed by a violation rather than on
whether harm actually occurred.  The presence or absence of direct
harm in a noncorapliance situation is something over which the vio-
lator may have no control.  Such violators should not be rewarded
by assessing lower penalties when the violations do not result in
actual harm.

     Compliance/enforcement personnel should evaluate whether the
potential for harm is major, moderate, or minor in a particular

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                              - 7  -
situation.  The 'degree of potential harm  represented  by  each
category  is defined as:

     °.   MAJOR    (1)   violation poses  a substantial likelihood
          of exposure  to hazardous waste; and/or

                   (2)   the actions have or may have a  substantial
          adverse effect on the statutory or regulatory  purposes
          or procedures for implementing  the RCRA program.

     0    MODERATE (1)   the violation poses a significant  likeli-
          hood ToT~exposure to hazardous waste; and/or

                   (2)   the actions have or may have a  significant
          adverse effect on the statutory or regulatory  purposes
          or procedures for implementing  the RCRA program.

     0    MINOR    (1)   the violation poses a relatively low like-
          lihood of exposure to hazardous waste; and/or

                   (2)   the actions have or may have an adverse
          effect on the statutory or regulatory purposes or
          procedures for implementing the RCRA program.

     The  following examples illustrate the difference between
major, moderate, and minor potential for harm.

Example 1 - Major Potential for Harm

     40 CFR §265.143 requires that owners or operators of hazardous
waste facilities establish financial assurance for closure of their
facilities.  The purpose of this requirement is to assure that
funds will be available for proper closure of facilities.  Under
§265.143(a)(2),  the wording of a trust agreement establishing
financial assurance for closure must be identical to the wording
specified in 40 CFR §264.151(a)(1).  Failure to word the trust
agreement as required may appear inconsequential.  However, even a
slight alteration of the language could change the legal effect of
the financial instrument so that it would no longer satisfy the
intent of the regulation.   When the language of the agreement
differs from the requirement such that funds would not be available
to .close  the facility properly, the lack of identical wording
would have a substantial adverse effect on the regulatory scheme.
This violation would be assigned to the major potential for harm
category.

Example 2 - Moderate Potential for Harm

     Under 40 CFR §262.34,  a generator may accumulate hazardous
waste on-site for 90 days  or less without having interim status
or a permit provided that  among other requirements,  each container

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                            - 8 -


or tank of waste is labeled or marked clearly with  the words,
"Hazardous Waste."  In a situation where a generator is storing
compatible waste, has labeled half of its containers, and has
clearly.identified its storage area as a hazardous  waste storage
area, there is some indication that the unlabeled containers
hold hazardous waste.  However, because there is a  chance that
the unlabeled containers could be removed from the  storage area,
and that without labels the Agency would not know if the waste
had been stored for more than 90 days, this situation poses a
significant likelihood of exposure to hazardous waste (although
the likelihood is not as great as it would be if neither the
storage area nor any of the containers were marked) .  The
moderate potential for harm category would be appropriate in
this case.

          _^_ Minor Potential for Harm-

     Owners or operators of hazardous waste facilities must, under
40 CFR §265.53, submit a copy of their contingency  plans to all
local police departments, fire departments, hospitals, and State
and local emergency response teams that may be called upon to
provide emergency services.  If a facility has a complete contin-
gency plan, including a description of arrangements agreed to by
local entities to coordinate emergency services (§265.52), but
failed to submit copies to all of the local entities, there is a
potential for harm.  However, because a complete plan exists and
arrangements with- all of the local entities have been agreed to,
the likelihood of exposure and adverse effect on the implementa-
tion of RCRA would be relatively low.   The minor potential for
harm category would be -appropriate in this situation.

     B.    Extent of Deviation from Requirement

     The "extent of deviation" from RCRA or its regulatory
requirements relates to the degree to which the violation renders
inoperative the requirement violated.   In any violative situation,
a range of potential noncorapliance with the subject requirement
exists.   In other words, a violator may be substantially in com-
pliance with the provisions of the requirement or it may have
totally disregarded the requirement (or a point in  between).  As
with potential for harm, extent of deviation may be either major,
moderate,  or minor.  In determining the extent of deviation, the
following definitions should be used:

     0    MAJOR    the violator deviates from the requirements of
          the regulation or statute to such an extent that there is
          substantial noncompliance.

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                               -  9  -
     0    MODERATE   Che violator  significantly  deviates  from
          the requirements of  the  regulation  or  statute  but
          some of the requirements are  implemented  as  intended.

     0 '   MINOR      the violator  deviates somewhat  from  the
          regulatory or statutory  requirements  but  most  of  the
          requirements are met.

     A few examples will help  demonstrate how the evaluation
procedure described above is used  to  select a category:

Example 1 - Closure Plan

     40 CFR §265.112 requires  that owners or  operators of
treatment, storage, and disposal  facilities have a  written
closure plan.  This plan must  identi.fy the steps necessary  to
completely or partially close  the  facility at any point  during
its intended operating life and to completely close  the  facility
at the end of its intended operating  life.  Possible violations
of the requirements of this regulation range  from having no
closure plan at all to having  a plan  which is somewhat inadequate
(e.g. , failure to include a schedule  for final  closure, while
complying with the other requirements).  These  violations might
be assigned to the "major" and "minor" categories respectively.
A violation between these extremes might involve failure to
modify a plan for increased decontamination activities as a
result of a spill on-site.

Ex_ampJ._e_ 2__-_ Failure _to Maintain Adequate Security

     40 CFR §265.14 requires that  owners or operators of
treatment, storage and disposal facilities take  reasonable care
to keep unauthorized persons from  entering the  active portion of
a facility where injury could  occur.  Generally, a  physical bar-
rier must be installed and any access routes  conscientiously
controlled.

     The range of potential noncompliance with  the  security
requirements is quite broad.   In  a particular situation, the
violator may prove to have totally failed to  supply  any security
systems.  Total noncompliance  with regulatory requirements such
as this would result in classification into the major category.
In contrast, the violation may consist of a small oversight such
as failing to lock an access route on a single occasion.  Obviously,
the degree of noncorapliance in the latter situation  is less signi-
ficant.  With all other factors being equal,   the less significant
noncompliance should draw a smaller penalty assessment.  In the
matrix system this is achieved by  choosing the minor category.

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                                - 10 -
       C.    Penalty Assessment Matrix

       Each of the above factors — potential for harm and extent
  of deviation from a requirement — forms one of the axes of the
  penalty  assessment matrix.  The matrix has nine cells, each
  containing a penalty range.  The specific cell is chosen after
  determining which category (major,  moderate, or minor) is appro-
  priate for the potential for harm factor, and which category is
  appropriate for the extent of deviation factor.  The complete
  matrix is illustrated below:

                 Extent of Deviation from Requirement
Potential
  for
 Harm

MAJOR
MODERATE
MINOR
MAJOR
$25,000
to
20,000
$10,999
to
8,000
$2,999
to
1 ,500
MODERATE"
$i9,r°9
to
15,000
$7,999
to
5,000
$1 ,499
to
500
MINOR
$14,999
to
11 ,000
$4,999
to
3,000
$499
to
100
       The lowest cell (minor potential for harm/minor extent of
  deviation)  contains a penalty range from $100 to $499.  Provi-
  sion for this low range of penalties has been made because the
  assessment of low penalties has proven to be an effective com-
  pliance tool.  The highest cell (major potential for harm/major
  extent of deviation) is limited by the maximum statutory penalty
  allowance of $25,000 per day of violation.

       The selection of the exact penalty amount within each cell
  is left to the discretion of compliance/enforcement personnel in
  any given case.  Compliance/enforcement personnel should be
  careful to consider the seriousness of the violation only in
  selecting the penalty amount within the range.  The reasons the
  violation was committed, the intent of the violator, and other
  factors related to the violator are not considered at this point
  they will be considered at the adjustment stage.

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                             - 11 -


VI.  MULTIPLE AND MULTI-DAY PENALTIES

     A.   Assessing Multiple Penalties

     In certain situations, EPA may -find that a particular firm
has violated several RCRA regulations.  A separate penalty should
be assessed for each violation that results from an  independent
act (or failure to act) by the violator and is substantially
distinguishable from any other charge in the complaint for which
a penalty is to be assessed.  A given charge is independent of,
and substantially distinguishable from, any other charge when  it
requires an element of proof not needed by the others.  In many
cases, violations of different sections of the regulations consti-
tute independent and substantially distinguishable violations.
For example, failure to implement a groundwater monitoring program,
40 CFR §265.90, and failure to have a written closure plan, 40 CFR
§265.112, are violations which result from different sets of
circumstances and which pose separate risks.  In the case of a
firm which has violated both of these sections of the regulations,
a separate count should be charged for each violation.  For penalty
purposes, each of the violations should be assessed separately and
the amounts totalled.

     It is also possible that different violations of the same
section of the regulations could constitute independent and sub-
stantially distinguishable violations.  For example, in the
case of a firm which has open containers of hazardous waste in
its storage area, 40 CFR §265.173(a), and which also ruptured
different hazardous waste containers while moving them on site,
40 CFR §265.173(b), there are two independent acts.  The viola-
tions result from two sets of circumstances (improper storage
and improper handling)  and pose distinct risks.  In this situa-
tion, two counts with two separate penalties would be appropriate.
For penalty purposes, each of the violations should be assessed
separately and the amounts totalled.

     Multiple penalties also should be assessed where one company
has violated the same requirement in substantially different
locations.  An example of this type of violation is failure to
clean up discharged hazardous waste during transportation, 40 CFR
§263.31.  A transporter who did not clean up waste discharged in
two separate locations during the same trip should be charged with
two counts.  In these situations,  the separate locations present
separate and distinct risks to public health and the environment.
Thus, separate penalty assessments are justified.

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                             - 12 -


     In general, multiple penalties are not appropriate where the
violations are not independent or substantially distinguishable.
Where a charge derives from or merely restates another charge, a
separate penalty is not warranted.  If an owner/operator of a
storage facility failed to specify in his waste analysis plan the
parameters for which each hazardous waste will be analyzed, 40 CFR
§265.13(b)(1),  and failed to specify the frequency with which the
initial analysis of the waste will be repeated, 40 CFR §265.13(b)
(4), he has violated the requirement that he develop an adequate
waste analysis plan.  The violations result from the same factual
event (failure to develop an adequate plan), and pose one risk
(storing waste improperly due to inadequate analysis).  In this
situation, both sections violated should, be cited in the complaint,
but one penalty, rather than two, should be assessed.  The fact
that two separate sections were violated will be taken into account
in choosing higher "potential for harm" and "extent of deviation"
categories on the penalty matrix.

     B.   Assessing Multi-Day Violations

     RCRA provides EPA with the authority to assess civil penalties
of up to $25,000 per violation per day, with each day that non-
cotnpliance continues to be assessed as a separate violation.
Multi-day penalties should generally be calculated in the case of
continuing egregious violations.  However, per day assessment may
be appropriate in other cases.

     In the case of continuing violations, the Agency has the
authority to calculate penalties based on the number of days of
violation since the effective date of the requirement and up to
the date of coming into compliance.  The gravity-based penalty
derived from the penalty matrix should be multiplied by the number
of days of violation.

VII. EFFECT OF ECONOMIC BENEFIT OF NONCOMPLIANCE

     The new Agency civil penalty policy mandates the consideration
of the economic benefit of noncorapliance to a violator when penal-
ties are assessed.  In accordance with the goals of the Agency
policy, the RCRA Civil Penalty Policy sets forth a system for
calculating the economic benefit of noncompliance with RCRA
requirements.

     An "economic benefit component" should be calculated and
added to the gravity-based penalty when a violation results in
significant economic benefit to the violator.   The following are
examples of regulatory areas which should undergo an economic
benefit analysis:

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                             - 13 -



          0    Groundwater monitoring

          0    Financial requirements

          0    Closure/post-closure

          0    Waste determination

          0    Waste analysis

          0    Clean-up of discharge

          0    Part B submittals

     For many RCRA requirements, the .economic benefit of
noncompliance may be difficult to quantify or relatively insig-
nificant.  Examples of these types of violations are failure
to submit a report or failure to maintain records.  In general,
compliance/enforcement personnel need not calculate the benefit
component where it appears that the amount of that component is
likely to be less than $2,500.  This figure is more appropriate
for the RCRA. program than the $10,000 cut-off in the Agency
policy because .of the amount.of economic benefit associated with
many RCRA violations.

     It is generally the Agency's policy not to settle cases
(i.e., the penalty amount) for an amount less than the economic
benefit of noncompliance.  However,  the new Agency civil penalty
policy does set out three general areas where settling the total
penalty amount for less than the economic benefit may be appro-
priate.  The RCRA policy has added a fourth exception for cases
where ability to pay is a factor.  The four exceptions are as
follows:

          0    the economic benefit component consists of an
               insignificant amount (i.e.. less than $2,500);

          0    there are compelling public concerns that would
               not be served by taking a case to trial;

          0    it is highly unlikely that EPA will be able to
               recover the economic benefit in litigation;

          0    the company has documented an inability to pay the
               total proposed penalty.

     If a case is settled for less than the economic benefit
component, a justification must be included in the case file.

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                             - 14 -


     A.   Types of Economic Benefit

     Compliance/enforcement personnel should examine cwo types of
economic benefit from noncompliance  in determining  the  economic
benefit component:

          0    Benefit from delayed  costs; and

          0    Benefit from avoided  costs.

     .Delayed costs are expenditures  which have been deferred by
the violator's failure to comply with the requirements.  The
violator eventually will have to spend the money in order to
achieve compliance.  Delayed costs are the equivalent of capital
costs.  Examples of violations which result in savings  from
delayed costs are:

          0    Failure to install ground-water monitoring
               equipment;

          0    Failure to submit a Part B permit application;
               and

          0    Failure to develop a waste analysis plan.

     Avoided costs are expenditures  which are nullified by the
violator's failure to comply.  These costs will never be incurred.
Avoided costs are the equivalent of  operating and maintenance
costs.  Examples of violations which result' in savings  from avoided
costs are:

          0    Failure to perform annual and semi-annual
               ground-water monitoring sampling and analysis;

          8    Failure to follow the approved closure plan in
               removing waste from a facility, where reremoval
               is not possible; and

          0    Failure to perform waste analysis before adding
               waste to tanks, waste piles, incinerators, etc.

     B.   Calculation of Economic Benefit

     Because the savings that are derived from delayed  costs differ
from those derived from avoided costs,  the economic benefit from
delayed and avoided costs are calculated in a different manner.
For avoided costs, the economic benefit equals the cost of complying
with the requirement, adjusted to reflect income tax effects on the

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                              - 15 -


company.  For delayed costs, Che economic benefit: does noc equal
che cose of complying wich che requirements, since Che violator
will eventually have to spend the money to achieve compliance.
The economic benefit for delayed costs consists of the amount
of interest on the unspent money that reasonably could have
been earned by the violator during noncompliance.  If noncompli-
ance has continued for more than a year, compliance/enforcement
personnel should calculate the economic benefit of both the
delayed and avoided coses for each year.

     The following formula is provided to help calculate the
economic benefit component:

Economic
Benefit  - Avoided Costs (1-T) + (Delayed Costs x Interest Rate)

     In the above formula, T represents the firm's marginal tax
rate.  In the absence of specific information regarding the
violator's tax status, compliance/enforcement personnel should
assume that the company's marginal tax rate is 46%, the Federal
corporate tax rate for firms whose before-tax profits are
greater than $100,000.  Thus, compliance/enforcement personnel
should assume that T  =•  .46..

     Compliance/enforcement personnel should calculate interest by
using the interest race charged by the Internal Revenue Service
(IRS) for delinquent accounts.  The IRS interest rates for 1980
through 1984 are as follows:

          2/1/80  -    1/31/82    12%
          2/1/82  -   12/31/82    20%
          1/1/83  -    6/30/83    16%
          7/1/83  -    6/30/84    11%

Interest rates for years other than Chose lisced above are
available from your local IRS office.

     The economic benefit formula provides a reasonable estimate
of the economic benefit of noncompliance.  If a respondent
believes chat the economic benefit it derived from noncompliance
differs from the estimated amount, it should present information
documenting its actual savings to compliance/ enforcement person-
nel at the settlement stage.

     See Section X of this document -for hypothetical applications
of the economic benefit formula.   The Agency plans to develop
additional guidance on calculating the economic benefit of
noncompliance, including identifying sources of cost information

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                              - 16 -


for various regulatory areas, and providing an Agency methodology
for computing economic benefit.  For this reason, the economic
benefit formula set out in this document is for  interim use
only.

VIII.  ADJUSTMENT FACTORS AND EFFECT OF SETTLEMENT

     A.   Adjustment Factors

     As mentioned in Section V of this document, the seriousness
of the violation is considered in determining the gravity-based
penalty.  The reasons the violation was committed', the intent of
the violator, and other factors related to the violator are not
considered in choosing the appropriate penalty from the matrix.
However, any system for calculating penalties must have enough
flexibility to make adjustments that reflect legitimate dif-
ferences between similar violations.' RCRA §3008(c) states that
in assessing penalties, EPA must take into account any good
faith efforts to comply with the applicable requirements.  The
new Agency civil penalty policy sets out several other adjust-
ment factors to consider.  These include the degree of willful-
ness and/or negligence, history of noncompliance, ability to
pay, and other unique factors.

     The adjustment factors can increase, decrease or have no
effect on the penalty amount to be paid by the violator.  Note,
however, that no upward adjustment can result in a penalty greater
than the statutory maximum of $25,000 per day of violation.  Adjust-
ment of a penalty may take place before issuing the proposed penalty
in the complaint, or after assessment of the proposed penalty (as
part of the settlement process).  Most factors,  in practice, will
be considered at the settlement stage with the burden of proof for
mitigation on the respondent.  However, penalties may be adjusted
before determining the proposed assessment if the necessary
information is available.  Compliance/enforcement personnel should
use whatever information on the violator (and violation) is avail-
able at the time of initial assessment.  Issuance of a complaint
should not be delayed in order to collect additional adjustment
information.  The history of noncompliance factor should be used
only to increase a penalty; the ability to pay factor should
be used only to decrease a penalty.  Justification for adjustments
must be included in the case file.

     In general, these adjustment factors will apply only to the
gravity-based penalty derived from the matrix, and not to the
economic benefit component if calculated.  (See Section VII of this
document for exceptions.)

     Application of the adjustment factors is cumulative, i.e.,
more than one factor may apply in a case.  For example, if the
base penalty derived from the matrix is $9,500,  and upward

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                              -  17  -


adjustments of 10% will be made  for both history  of noncompliance
and degree of willfulness and/or negligence, the  total adjusted
penalty would be $11,400  ($9,500 +  20%).

     The following discussion of the factors to consider  is
consistent with the new Agency civil penalty policy.  For the
purposes of simplification, the percentage ranges for the adjust-
ment factors in the Agency policy have been altered slightly for
use in the RCRA Civil Penalty Policy.

     At this stage of the RCRA program it is difficult to
determine what types of non-monetary alternatives or alternative
payments would foster the goals of  the program.  As compliance/
enforcement personnel gain more experience in enforcing RCRA,
use of these alternatives may prove to be advantageous to the
public interest.  Until such time,  these alternatives, as set
forth in the new Agency civil penalty policy, are not an option
under the RCRA Civil Penalty Policy.

          (1)  Good faith efforts to comply/lack of good faith
               (Degree of cooperation/noncooperation.)

     Under §3008(a) of RCRA, good faith efforts to .comply with
the requirements must be considered in assessing a penalty.
Good faith can be manifested by the violator promptly reporting
its noncompliance.  Assuming such self-reporting is not required
by law, this behavior can result in mitigation of the penalty.
Prompt correction of environmental  problems also can constitute
good faith.  Lack of good faith, on the other hand, can result
in an increased penalty.  Compliance/enforcement personnel have
discretion to make adjustments up or down by as much as 25% of
the gravity-based penalty.  Adjustments may be made in the 26%-40%
range of the gravity-based penalty, but only in unusual circum-
stances.  No downward adjustment should be made if the good .
faith efforts to comply primarily consist of coming into
compliance.

          (2)  Degree of willfulness and/or negligence

     Section 3008(d) of RCRA provides for criminal penalties
for "knowing" violations.  However, there may be instances of
culpability which do not meet the criteria for criminal action'.
In cases where administrative civil penalties are sought for
actions of this type, the penalty may be adjusted upward for
willfulness and/or negligence.  Conversely,  although RCRA is a
strict liability statute, there may be instances where penalty
mitigation may be justified based on the lack of willfulness
and/or negligence.

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                              - 18 -


     In assessing the degree of willfulness and/or negligence,
the following factors should be considered, as well as any others
deemed apropriate:

          0    how much control the violator had over the events
               constituting the violation;

          0    the forseeability of the events constituting the
               violation;

          0    whether the violator took reasonable precautions
               against the events constituting the violation;

          0    whether the violator knew or should have known of
               the hazards associated with the conduct;

          0    whether the violator k"new of the legal requirement
               which was violated.

     It should be noted that this last factor, lack of knowledge
of the legal requirement, should never be used as a basis to
reduce the penalty.  To do so would encourage ignorance of the
law.  Rather, knowledge of the law should serve only to enhance
the penalty.

     The amount of control which the violator had over how quickly
the violation was remedied also is relevant in certain circum-
stances.  Specifically, if correction of the environmental problem
was delayed by factors which the violator can clearly show were
not reasonably foreseeable and out of his control, the penalty
may be reduced.

     Subject to the above guidance, compliance/enforcement
personnel have discretion in all cases to make adjustments up or
down by as much as 25% of the gravity-based penalty.  Adjustments
in the 26-40% range may be made, but only in unusual circumstances.

          (3)  History of noncompliance (upward adjustment only)

     Where a party previously has violated RCRA or State hazardous
waste law at the same or a different site, this is usually clear
evidence that the party was not deterred by the previous enforce-
ment response.  Unless the previous violation was caused by
factors entirely out of the control of the violator, this is an
indication that the penalty should be adjusted upwards.

     Some of the factors the compliance/enforcement personnel
should consider are the following:

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                              - 19 -


          0    how similar the previous violation was;

          0    how recent the previous violation was;

          0    the number of previous violations;

          0    violator's response to previous violation(s)
               in regard to correction of problem.

     A violation generally should be considered "similar" if the
Agency's or State's previous enforcement response should have
alerted the party to a particular type of compliance problem.  A
prior violation of the same or a different RCRA or State requirement
would constitute a similar violation.

     For purposes of the section, a "prior violation" includes
any act or omission for which a formal enforcement response has
occurred (e.g., EPA or State notice of violation, warning letter,
complaint, consent agreement, final order, or consent decree).
It also includes any act or omission for which the violator has
previously been given written notification, however informal,
that the Agency believes a violation exists.

     In the case of large corporations with many divisions or
wholly-owned subsidiaries,  it is sometimes difficult to deter-
mine whether a previous instance of noncompliance should trigger
the adjustments described in this section.  New ownership often
raises similar problems.  In making this determination, compliance/
enforcement personnel should ascertain who in the organization had
control and oversight responsibility for compliance with RCRA or
other environmental laws.  In those cases the violation will be
considered part of the compliance history of that regulated party.

     In general, compliance/enforcement personnel should begin
with the assumption that if the same corporation was involved, the
adjustments for history of noncompliance should apply.  In addi-
tion, compliance/enforcement personnel should be wary of a party
changing operators or shifting responsibility for compliance to
different persons or entities as a way of avoiding increased
penalties.  The Agency may find a consistent pattern of noncom-
pliance by many divisions or subsidiaries of a corporation even
though the facilities are at different geographic locations.
This often reflects,  at best, a corporate-wide indifference to
environmental protection.  Consequently, the adjustment for
history of noncompliance probably should apply unless the violator
can demonstrate that the other violating corporate facilities are
independent.

     Subject to the above guidance, compliance/enforcement
personnel have discretion to make upward adjustments by as much
as 25% of the gravity-based penalty.  Adjustments for this factor
in the 26-40% range may be made, but only in unusual circumstances.

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                               - 20 -
           (4)   Ability to pay (downward adjustment only)

      The Agency generally will not request penalties that are
 clearly  beyond the means  of the violator.   Therefore EPA should
 consider the ability of a violator to pay  a penalty.  At the
 same time,  it is important that the regulated community not see
 the violation of environmental requirements as a way of aiding a
 financially troubled business.  EPA reserves the option,  in
 appropriate circumstances,  to seek penalties that might put a
 company  out of business.   It is unlikely,  for example,  that EPA
 would reduce a penalty where a facility refuses to correct a
 serious  violation.  The same could be said for a .violator with a
 long history of previous  violations.   That long history would
 demonstrate that less severe measures are  ineffective.

      The burden to demonstrate inability to pay rests on the
 respondent,  as it does with any mitigating circumstances.  Thus,
 a company's inability to  pay usually  will  be considered at the
 settlement  stage, and then only if the issue is raised by the
 respondent.   If the respondent fails  to provide sufficient infor-
 mation,  then compliance/enforcement personnel should disregard
 this factor in adjusting  the penalty.  The National Enforcement
 Investigations Center (NEIC) has developed the capability to
 assist the  Regions in determining a firm's ability to pay.

      When it is determined that a violator cannot afford the
 penalty  prescribed by this policy, or that payment of all or a
 portion  of  the penalty will preclude  the violator from achieving
 compliance  or from carrying out remedial measures which the
 Agency deems to be more important than the deterrence effect of
 the penalty (e.g., payment of penalty would preclude proper
 closure/post-closure), the following  options may be considered:

           0     Consider a delayed payment  schedule.  Such a
                schedule might even be contingent upon an. increase
                in sales or some other indicator of improved
                business.

           *     Consider an installment payment plan with interest.

           0     Consider straight penalty reductions as  a last  -
                recourse.

      The amount of any downward adjustment of the penalty is
.dependent on the individual financial facts of the case.

           (5)   Other unique factors

      This policy allows an adjustment for  unanticipated factors
 which may arise on a case-by-case basis.  Compliance/ enforcement
 personnel have discretion to make adjustments by as much as 25% of

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                              - 21 -
Che gravity-based penalty for such reasons.  Adjustments for
these factors in the 26-40% range may be made, but only in.unusual
circumstances.

     B.   Effect of Settlement

     The Consolidated Rules of Practice for the assessment of
civil penalties incorporates the Agency policy of encouraging
settlement of a proceeding at any time as long as the settlement
is consistent with the provisions and objectives of RCRA and its
regulations, 40 CFR S22.18(a).  If the respondent believes that
it is not liable or that the circumstances of its case justify
mitigation of the penalty proposed in the complaint, the Rules
of Practice allow it to request a settlement conference.

     In many cases,  the fact of a vidlation will be less of an
issue than the amount of the penalty assessed.  The burden always
is on the violator to justify any mitigation of the assessed
penalty.  The mitigation, if any, of the penalty assessed in the
complaint should follow the guidelines in the Adjustment Factors
section of this document.  The consent agreement must include a
general statement of the reasons for mitigating the proposed
penalty.  Specific percentage reductions for individual factors
need not be included.

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                             - 22 -

                      IX.  APPENDIX

              PENALTY COMPUTATION WORKSHEET
Company Name:
Regulation Violated
Asessments for each violation should be determined
on separate worksheets and totalled.

     (If more space is needed, attach separate sheet.)

       Part I  -  Seriousness of Violation Penalty

1. Potential for Harm:	

2. Extent of Deviation:            	

3. Matrix Cell Range:              	

      Penalty Amount Chosen:       	
      Justification for Penalty
        Amount Chosen:

4. Per-Day Assessment:
           Part II - Penalty Adjustments

                       Percentage Change*   Dollar Amount
1. Good faith efforts
     to comply/lack of
     good faith:

2. Degree of willfulness
     and/or negligence:

3. History of
     noncompliance:

4. Other unique factors:

5. Justification for
     Adjustments:
* Percentage adjustments are applied to the dollar
  amount calculated on line 4, Part I.	

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                            - 23 -

            PENALTY COMPUTATION WORKSHEET (cone.)
 6. Adjusted Per-day
      Penalty (Line 4,
      Part I + Lines
      1-4, Part II):

 7. Number of Days of
      Violation:

 8. Multi-day Penalty
     (Number of days x
     Line 6, Part II):

 9. Economic Benefit of
      Noncompliance:

      Justification:
10. Total (Lines 8+9,  Part II)

11. Ability to Pay Adjustment:

      Justification for
      Adjustment:
12. Total Penalty Amount
      (must not exceed $25,000
      per day of violation):

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                              - 24 -
    X.   HYPOTHETICAL APPLICATIONS OF THE PENALTY POLICY

(1)(A)  Violation:   By notification dated August 15, 1980, Company
       A-informed EPA that it conducts activities at its facility
       involving hazardous waste.  In its notification, Company A
       indicated that it only generated hazardous waste.  A 1983
       inspection revealed that Company A was also storing
       hazardous waste,  and had been since 1979.  Company A had
       not filed a Part  A Permit Application and was thus operating
       without a permit  or interim status, in violation of §3005
       of RCRA.  In addition, Company A was in violation of §3010
       of RCRA by failing to notify EPA that it was storing
       hazardous waste.   Failure to notify and operating without a
       pemit or interim, status constitute independent and substan-
       tially distinguishable violations.  Each violation should
       be assessed separately and the amounts totalled.  The
       inspectors indicated that Company A's storage area was
       secure and that,  in general, the facility was well managed.
       However, there were a number of violations of the interim
       status standards.  The complaint issued to Company A
       assessed penalties for the Part 265 violations as well as
       the statutory violations.  This example will discuss the
       §3005 and §3010 violations only.

   (B)  Seriousness:  (i) Failure to Notify:  Potential for Harm.
       Moderate - EPA was prevented from knowing that hazardous
       waste was being stored at the facility.  However, because
       Company A notified EPA that it was a generator,  EPA did
       know that hazardous waste was handled at the facility.
       The violation may have a significant adverse effect on the
       statutory purposes or procedures for implementing the RCRA
       program.  Extent  of Deviation.  Moderate - although
       Company A did not notify EPA that it stored hazardous waste,
       it did notify the Agency that is was a generator.  Company A
       significantly deviated from the requirement, but part of
       the requirement was implemented as intended,  (ii) Operating
       without a permit.  Potential for Harm.  Moderate - although
       Company A was operating without a permit or interim status,
       its facility generally was well managed.  However, there
       were a number of  Part 265 violations.  This situation may
       pose a significant likelihood of exposure which may have a
       significant adverse effect on the statutory purposes for
       implementing the  RCRA program.  Extent of Deviation.
       Major - substantial noncompliance with the requirement
       because Company A did not notify EPA that it stored
       hazardous waste,  and did not submit a Part A.

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                               - 25 -


   (C)  Gravity-based Penalty:  (i)  Failure to notify.  Moderate
       potential for harm and  moderate extent of deviation lead
       one to the cell with the range of $5,000 to $7,999.  The
       mid-point is $6,500.  (ii)  Operating without a permit.
       Moderate potential for  harm and major extent of deviation
       lead one to the cell with the range of $8,000 to $10,999.
       The midpoint is $9,500.  (iii) Total penalty: $6,500 +
       $9,500 - $16,000.

   (D)  Settlement adjustment:   Company A raised and documented
       that it had cash flow problems.  It did not convince EPA
       that the penalty should be  mitigated.  An installment plan
       was accepted by both parties as a means of payment.  Penalty
       remained at $16,000.

(2)(A)  Violation:  Company B failed to -prevent unknowing entry of
       persons onto, the active portion of its surface impoundment
       facility.  The fence surrounding the area had several holes.
       40 CFR S265.14.

   (B)  Seriousness:  Potential for Harm.  Major - some children
       already have entered the area; potential for harm due to
       exposure to waste  may be substantial because of the lack of
       adequate security  around the site.  Extent of Deviation.
       Moderate - there is a fence, but it has holes.Significant
       degree of deviation, but part of the requirement was imple-
       mented.

   (C)  Gravity-based Penalty:   Major potential for harm and
       moderate extent of deviation yield the penalty range of
       $15,000 to $19,999.  The midpoint is $17,500.

   (D)  Pre-complaint Adjustment:   During the inspection of the
       facility, EPA discovered that the operator of Company B
       had been made aware of  the  above occurrence more than
       three months earlier, but had failed to repair the fence
       or increase security in that area.  The penalty is
       adjusted upwards 25% for willfulness and/or negligence.
       $17,500 + $4,375 - $21,875. [Penalty calculation using
       the Penalty Computation Worksheet follows this hypothetical.]

   (E)  Settlement Adjustment:   Company B gave evidence at
       settlement of labor problems with security officers and
       reordering and delivery delays for a new fence.  Company
       B was very cooperative  and  stated that a new fence
       had been installed after issuance of the complaint and  that

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                      - 26 -
security would be provided for by another company in the
near future.  Even though the company was very cooperative,
its actions were only those required under the regulations.
No justification for mitigation for good faith efforts to
comply exists.  No change in $21,875 penalty.

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                           - 27 -


              PENALTY COMPUTATION WORKSHEET
Company Name :
Regulation Violated
Asessments for each violation should be determined
on separate worksheets and totalled.

     (If more space is needed, attach separate sheet.)

       Part I  -  Seriousness of Violation Penalty

1 . Potential for Harm:
2. Extent of Deviation:                fV\ o
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                            - 28 -


            PENALTY COMPUTATION WORKSHEET (cone.)
 6.  Adjusted Per-day
      Penalty (Line 4,
      Part I + Lines
      1-4, Part II): "

 7.  Number of Days of
      Violation:

 8.  Multi-day Penalty
     (Number of days x
     Line 6, Part II):

 9.  Economic Benefit of
      Noncompliance:

      Justification:
10.  Total (Lines 8 + 9,  Part II):               * 3

11.  Ability to Pay Adjustment:

      Justification for                            /vl/A
      Adjustment:
12.  Total Penalty Amount
      (must not exceed $25,000
      per day of violation) :

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                             - 29 -


(3)(A)  Violation:   A 1984 inspection of Company C's land disposal
       facility revealed that Company C had failed to implement a
       ground-water monitoring system by November 1981  as required
       under 40 CFR §265.90.   The facility had taken no steps -to
       implement a system:   it failed to install monitoring wells
       (§265.91),  and to obtain and analyze samples (§265.92); no
       outline of a ground-water quality assessment program had
       been prepared (§265.93); and no records were kept nor
       reports submitted to the Agency (§265.94).  All of the
       violations arise from  the same set of circumstances.
       Because ..Company C did  not install wells, no sampling and
       analysis could occur.   Without sampling and analysis,
       Company C did not have information with which to prepare a
       quality assessment program outline,  keep records, or submit
       reports to the Agency.  Therefore, the violations are not
       independent and substantially -distinguishable in this
       situation.   [See:   Assessing Multiple Penalties].  A single.
       penalty assessment is  appropriate, with each section of the
       regulations that was violated cited in the complaint.

   (B)  Seriousness:   Potential for Harm.   Major - the violation
       could pose a substantial likelihood of exposure and could
       have a substantial adverse effect  on the purposes for
       implementing the RCRA  program.  Extent of Deviation.  Major -
       none of the requirements were implemented asintended.

   (C)  Gravity-based Penalty:   Major potential for harm and major
       extent of deviation  yield the cell with the penalty range
       of 320,000  to $25,000.   The mid-point is $22,500.

   (D)  Economic Benefit of  Noncompliance:  Ground-water monitoring
       has been identified  as an area for which an economic benefit
       component may be significant.   The following estimates of
       the costs of complying with the ground-water monitoring
       requirements are taken from a January 1982 report prepared
       for EPA by Geraghty  &  Miller,  Inc.,  entitled,  Development
       of Ground-Water Monitoring Requirements and Costs for
       Current RCRA Regulatory Requirements. Contract No.  68-01-5838

                        First Year Costs

       Cost of ground-water quality assessment         $2,000
       plan outline and ground-water sampling
       and analysis  plan  (COP)

       Cost of wells (COW), 1  upgradient  and 3         $9,000
       downgradient

       Cost of sampling (COS)                           $1,640

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                            - 30 -


      Cost of analysis (COA)                         $11,360

      Cost of report (COR), report for                $3,200
      determining system needs, not report
      required Under §265.94

      TOTAL                                       .   $27,200

                      Second Year Costs

      Cost of sampling and cost of analysis        -•  $1 ,900
      (COS, COA), assuming no contamination
      found

      Assumptions:   geology is unconsolidated material;  hollow-
      stem auger drilling; PVC construction material; ground-
      water' sampling by hand bailing;  wells dug 50 ft. deep;
      estimated costs remained constant over time.

      COP, COW, COR, and first year COS and COA are delayed costs.
      Company C eventually will make these expenditures in order
      to achieve compliance.  Second year and subsequent COS and
      COA are avoided costs.  Company C has permanently avoided
      incurring these costs.

      Calculation of Economic Benefit Component

      For each year of noncompliance (1981-1984),  the economic
      benefit component should be calculated using the formula
      set out in Section VII:

Economic
Benefit  =  Avoided Costs (1-T) + (Delayed Costs x Interest Rate)

      1981:  By November 1981, Company C was required to implement
             its ground-water monitoring system by installing
             wells, obtaining and analyzing samples at least
             quarterly, and preparing a quality assessment program
             outline.

             Delayed costs = $27,200
             Avoided costs = SO
             IRS interest rate = 12%
             Assume T = .46

             Economic Benefit = SO + ($27,200 x 12%)
                              = $3,264

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                             - 31 -


       1982:  Company C still had not implemented  its ground-
              water monitoring system.  In addition, it had not
              obtained and analyzed samples at least annually or
              semi-annually,  depending on the indicator parameter.

              Delayed costs = $27,200
              Avoided costs = $1  ,900
              IRS interest rate = 20%
              Assume T = .46

              Economic Benefit = $1,900 (1-.46)  +  ($27,200 x 20%)
                               = $6,466

       1983:  Company C still had not implemented  its ground-
              water monitoring system.  In addition, it had not
              obtained and analyzed samples at least annually or
              semi-annually,  depending on the indicator parameter.

              Delayed costs = $27,200
              Avoided costs = $1,900
              IRS interest rate = 13.5% (the average of 16% and 11%)
              Assume T = .46

              •Economic Benefit =  $1,900 (1-.46)  +  ($27,200 x 13.5%)
                               = $4,698

       Total Economic Benefit = $3,264 + $6,466  + $4,698
                              = $14,428

       Penalty proposed .in complaint = gravity-based penalty +
                                       economic  benefit component
                                     = $22,500 + $14,428
                                     = $36,928

       Because noncompliance  continued over a three year period,
       the proposed penalty does  not exceed $25,000 per day of
       violation.

   (E)  Settlement Adjustment:   Company C did not request a
       settlement conference  but  did comply with the Compliance
       Order and paid the proposed penalty.

(4)(A)  Violation:  Pursuant to §3007(a)  of RCRA,  EPA sent a
       letter to Company D requesting that it furnish informa-
       tion relating to hazardous waste.  Specifically,  five
       separate records were  requested.   The letter required a
       response to EPA within 14  calendar days of Company D's
       receipt of the letter.   One month after Company  D
       received EPA's information request, it submitted three
       of the five documents  requested.   EPA sent a second
       letter requesting the  two  remaining documents.  Company
       D failed to respond to the request.

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                            - "32 -


   (B)  Seriousness:   Potential for Harm.  Moderate - Based on
       Che nature of the information requested, EPA determined
       that Company D's failure to submit information relating
       to. hazardous waste to EPA as requested may have a signi-
       ficant adverse effect on the purposes and procedures
       for implementing the RCRA program.  Extent of Deviation.
       Moderate - Company D did submit some of the information
       requested.  It significantly deviated from the require-
       ment,  but part of the requirement was implemented as
       intended.

   (C)  Gravity-based Penalty:  Moderate - potential for harm
      .and moderate extent of deviation yield the penalty range
       of $5,00.0 to $7,999.  The midpoint is $6,500.

   (D)  Pre-Assessment Adjustments -  On two previous occasions
       at different facilities, Company D failed to respond
       completely to §3007 requests for different information.
       In those cases,  EPA issued administrative complaints with
       proposed penalties of $6,500 and $8,125 respectively.
       Both cases resulted in Consent Agreements and Final
       Orders which were entered into before EPA requested the
       information in the present case.  The penalty is adjusted
       upwards 50% for history of noncompliance. .$6,500 +
       $3,250 = $9,750.  Compliance/enforcement personnel
       determined that the penalties assessed in the previous
       cases  had failed to deter Company D from repeated
       noncompliance with RCRA.  For this reason, a multi-day
       penalty of $9,750 per day from the date the information
       was due to EPA was assessed.

   (E)  Settlement Adjustment:  Company D failed to convince EPA
       that any penalty mitigation was justified.  Settlement
       negotiations broke down and the case went to an
       administrative hearing.

(5)(A)  Violation:  Company E's Part B Permit Application was called
       in by  EPA in 1983.  Company E, a land disposal facility,
       failed to submit its Part B by the date specified when the
       application was called-in.  EPA issued a Notice of-Deficiency
       requiring submission of a complete Part B within 30 days.
       EPA also issued a warning letter stating that failure to
       submit a complete Part B application is a violation of
       40 CFR §270.10(a) which may result in the assessment of
       civil  penalties and the initiation of procedures to termi-
       nate the facility's interim status.  Company E sent EPA a
       one-page response several weeks after the date stipulated
       in the Notice of Deficiency.  The response was seriously
       incomplete.  Thus, Company E failed to submit a complete
       Part B in violation of 40 CFR §270.10(a).

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                              - 33 -


  (B) Seriousness:  Potential for Harm.  Moderate - inspections of
      Company E's facility have revealed a generally well-managed
      operation.  However, failure to carry out the applicable
      requirements of 40 CFR §270.14-270.29 could pose a significant
      likelihood of exposure in this situation.  The violation could
      have a significant adverse effect on the procedures for
      implementing the RCRA program.  Extent of Deviation.  Major -
      Part B application was seriously incomplete.

  (C) Gravity-based Penalty:  Moderate potential for harm and
      major extent of deviation lead one to the cell with the
      range -of $8,000 to $10,999.  The mid-point is $9,500.

  (D) Eco.nomic Benefit of Noncompliance:   Failure to submit or
      submittal of an incomplete Part B application has been
      identified as an area for which_an economic benefit component
      may be significant.  In a document prepared by EPA's Office
      of Solid Waste requesting clearance from the Office of
      Management and Budget to call in Part B applications, it was
      estimated that the cost of preparing a Part B for a land
      disposal facility was approximately $150,000.  The document,
      entitled,  FY 1984 Burden Hours for RCRA Land Disposal
      Permitting Standards is dated November 18,1983.

      The economic benefit component should'be calculated using
      the formula set out in Section VII:

Economic
Benefit  =  Avoided Costs (1-T)  + (Delayed Costs x Interest Rate)

      Failure to submit a complete Part B is a delayed cost.
      Company E eventually will spend the money in order to
      achieve compliance.  No avoided costs are associated with
      this violation.  The economic benefit should be calculated
      for a one year period.  The IRS interest rate for 1983 is
      13.5% (the average of 16% and 11%).

      Economic Benefit = $0 + ($150,000 x 13.5%)
                       = $20,250

      Penalty proposed in complaint = gravity-based penalty +
                                      economic benefit component
                                    = $9,500 + $20,250
                                    = $29,750

      Because noncompliance continued over a period of several
      months,  the proposed penalty does not exceed $25,000 per
      day of violation.

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                            - 34 -
(E)  Settlement Adjustment:   At the settlement conference,
    Company E raised and documented that it was in a poor.
    financial state and would be unable to pay the full penalty.
    Company E also told the Agency that it intended to cease
    handling hazardous waste.  Because of the company's
    inability to pay,  and because of the Agency's desire that
    Company E put what money it has into proper closure and
    post-closure care  at its facility, the penalty was reduced
    to $5,000. . A Compliance Order was issued putting.Company E
    on a schedule for  closing its facility in accordance with
    its approved closure plan.

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  POSSIBLE RCRA INTERIM MEASURES
CONTAINERS            -  SURFACE IMPOUNDMENTS
LANDFILL               - WASTE PILE
GROUND WATER         -  SURFACE WATER RELEASE
TANKS                -  GAS MIGRATION CONTROL
PARTICULATE EMISSIONS   •  OTHER

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                  INTERIM MEASURES
  CONTAINERS
      • Overpack/Re-drum
      • Construct Storage Area/Move to Storage Area
      • Segregation
      • Sampling and Analysis
      • Treatment, Storage and/or Disposal
      • Temporary Cover

TANKS

      • Overflow/Secondary Containment
      • Leak Detection/Repair/Partial or Complete Removal

SURFACE IMPOUNDMENTS

      • Reduce Head
      • Remove Free Liquids and or Highly Mobile Wastes
      • Stabilize/Repair Side Walls, Dikes or Liner(s)
      • Temporary Cover
      • Run-off/Run-on Control (Diversion of Collection Devices)
      • Sample and Analysis to Document the Concentration of
       Constituents  Left in Place When a Surface Impoundment
       Handling Characteristic Wastes is Clean Closed
      • Interim Ground-water Measures (See Ground-water Section)

LANDFILL

      • Run-off/Run-on Control (Diversion or Collection Devices)
      • Reduce Head on Liner and/or in Leachate Collection System
      • Inspect Leachate Collection/Removal System or French Drain
      • Repair Leachate Collection/Removal System or French Drain
      • Temporary Cap
      • Waste Removal (See Soils Section)
      • Interim Ground-water Measures (See Ground-water Section)
WASTE PILE

      • Run-off/Run-on Control (Diversion of Collection Devices)
      • Temporary Cover
      • Waste Removal (See Soils Section)
      • Interim Ground-water Measures (See Ground-water Section)

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SOILS
      • Sampling/Analysis/Disposal
      • Run-off/Run-on Control (Diversion or Collection Devices)
      • Temporary Cap/Cover

GROUND WATER

      • Delineation/Verification of Gross Contamination
      • Sampling and Analysis
      • Interceptor Trench/Sump/Subsurface Drain
      • Pump and Treat/ln-situ Treatment
      • Temporary Cap/Cover

SURFACE WATER RELEASE (Point and Non-point)

      • Overflow/Underflow Dams
      • Filter Fences
      • Run-off/run-on Control (Diversion or Collection Devices)
      • Regrading/Revegetation
      • Sample and Analyze  Surface Waters and Sediments or Point
       Source Discharges

GAS MIGRATION CONTROL

      • Barriers/Collection/Treatment/Monitoring

PARTICULATE EMISSIONS

      • Truck Wash (Decontamination Unit)
      • Re-vegetation
      • Application of Dust Supressant

OTHER TYPES OF ACTIONS

      • Fencing to Prevent Direct Contact
      • Extend Contamination Studies to Off-site Areas if Permission is
       Obtained as Required Under Section §3004(v)
      • Alternate Water Supply to Replace Contaminated Drinking Water
      • Temporary Relocation of Exposed Population
      • Temporary or Permanent Injunction
      • Suspend or Revoke Authorization to Operate Under Interim
       Status

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                               WASHINGTON, D.C. 20460
                                 JAN  2 4  l9Pi
MEMORANDUM
                                                            SOLID WASTE AMD EMERGEMCY RESPONSE
SUBJECT:  Request for Garments on a Draft Corrective Action
          Interim Measures
FROM:    .Lloyd Guerci, Director
          RCRA Enforcement Division, OWPE (WH-527)
          Bruce wed die,
          Permit & State Program Division, OSW (WH-563)

TO:   '    RCRA Branch Chiefs, Regions I-X
          Regional Counsels, Regions I-X
     On December 10, 1985, the RCRA Enforcement Division transmitted
to you a copy of a draft §3008(h) Corrective Action Model Order.
developed at Headquarters and asked for year ccrrre-ts Dy December 20,
1985.  Today we are transmitting one of the companion documents
which was also noted in the December 10 era: ami c. til.

     The document is tentatively titled Corrective Action Interim Measures and
is designed to provide a review of response actions available under
§3008(h) as well as permits to quickly address problems while other detailed
investigations or analyses are ongoing.  Interim measures should be designed
and implemented as an initial remedial activity in a multi-phased order or
as the action in the first of a series of orders which feed into an operating
permit, post-closure permit or interim status closure plan.

     You will note that this document does not address the questions of
trigger levels for corrective action or levels of clean-up to be achieved.
We solicit your comments on these two key subjects.  To date we at Headquarters
have seen a wide" variety of proposed requirements in Corrective Action Orders
and Referrals.  Clean-up levels have ranged from background, to a specified
percentage reduction in total volatile organics, to the establishment
of ACLs, to no specif-ied clean-up levels.  Activities have ranged from
sweeping contaminated floors or parking lots to excavation of solid waste
management units.  Several actions have called for soil sampling and
sediment/surface water sampling from point source and non-point source
discharges.

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     We request that staff frcm both enforcement and permitting develop a
coordinated set of comments from the Regional program offices.  To allow for
an expedited turnaround for the final document, we are requesting that you
submit your comments to each of us within two weeks.  In the interim, Regions
are encouraged to continue to develop both administrative orders and judicial
referrals under the r.ew corrective action authority and co proceed with
corrective ?.ction activities, including preliminary assessments or site
investigations.

attachments

cc:  RCRA Section Chiefs
                                                                                         ..**

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                             DRAFT
                             JAN 24 I9S6
RCRA  § 3 0 0 8 ( h )  CORRECT I V e  ACTION
             R I M  M " A S '.] R F: S

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         STRATEGY




 por  _,,., ; •; ; "CP-ATIOM OF




     INTERIM MEASURES




            IM




CORRECTIVE  ACTION  ORDERS

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                   Interim Measures Strategy

Background

     Section 3008('n)  gives EPA authority to issue Administrative
Orders or seek judicial relief requiring corrective action or
such other response measures deemed necessary to protect human
health or the environment, based on information that a release
has or is occurring into the environmenc from a facility.  This
authority provides for the broad applicability of corrective
actions and response measures.

     Extensive and time consuming investigations may be  required
to develop a comprehensive corrective action plan (RI equivalent)
for a facility.  During this period the release could continue
unabated which would allow the spread of contamination or the
continuance of conditions that may endanger or impact human health
or the environment.  Therefore, interim measures pursuant to
corrective action orders or permits, should be considered and
where appropriate directed.


Implementation Strategy

1.  OWPE (HO) ^iil review ex^cin.) L^HCL.'-. guidance and CERCLA
    case files to develop a comprehensive list of possible
    interim measure's.

2.  OWPE (HQ) will provi'.i- c:ie Re.j ions .vi-.i the list of  i n c.-a r i TI
    measures together with model order language as needed for each
    interim measure to assist  in the development of corrective
    action orders.

3.  Regions should consider interim measures for all corrective
    action orders and initiate them for facilities where a
    release that threatens human health or the environment
    has been identified.  Implementation of interim measures
    should be consistent with  priorities, as necessary to
    protect human health or the environment, based on information
    that a release has or is occurring at an interim status
    facility.

4.  Regions should integrate  interim measures where appropriate,
    as initial phase(s) of corrective action orders.

5.  Interim measures are  independent of the comprehensive
    corrective action plan.  They may, in fact, add additional
    costs or work  to the comprehensive corrective action.  This
    should not be a justification for not implementing an interim
    measure.  To decide what  interim measure is appropriate,  both
    technical judgement and potential threat evaluation  should be
    considered.^ If the release poses a minimal threat to human


1  An example of hazardous constituent specific health effects
   is attached.  Similar data  sheets can be found for other
   constituents in "Chemical,  Physical and Biological Properties
   of Compounds Present at Hazardous Waste Sites", September  1985.

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      health or the environment, a comprehensive and sometimes
      expensive interim me'asure (e.g. pump and treat) might not
      be necessary or appropriate.  Interim measures should be
      consistent with and integrated into a.ny lona tarm remedy (e.g
      an operating permit, post-closure permit or interim status
      :losure) to the maximum o-cr.ent possible.
Types of Interim Measures


     Corrective action orders should incorporate actions (interim
measures) necessary to protect human health or the environment.
Interim measures are actions that should be taken to prevent releases
or additional contamination, prevent or reduce the further spread
of contamination, and reduce, abate or remove the exposure threat
presented by releases.  During a selection of an interim measure,
Regions should consider the magnitude of the potential threat to
human health or the environment.  The Agency's authority to seek
relief by ordering an owner/operator to perform specified activities
is directly correlated to the protection of human health and the
environment standard.  Therefore, if the threat is minimal or the
risk has yet to be determined,  simple monitoring of ground water,
surc?ice water, soil c - •=. i r m.--y :,e the types of a c t i ^T-S ordered.
For example, if a release co ground wacer is minimal ana che
aquifer is not used b/ the n'•; .i r !•> y population, a program to pump
and treat may not be appropriate.  If che chreat is greater or as
more information becon-?s -available through initial or additional
sampling and analysis, more serious actions should be contemplated
either by incorporating actions into a single "phased" order or
by issuing separate orders.

     Attached is a list of some possible interim measures.  It
was compiled from removal actions and past CERCLA remedial
guidance.

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DECISION CRI'i£kiA  '

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Decision Criteria.


     Regional staff must  r^vi^w the pertinent  facts  about  the
source and nature of the  r-?L:.^ie or threat of  reloa^e  .ind  !?..r;ed  on
the magnitude of  the potential threat  to hurmn  health  and  environment,
decide if interim •vj.isurss are ap ^copri ?. te .

     To determine when  2  potential threat  to human healtn  or  tlvj
environment exis'ts as a result of a release, the enforcement official/
permit writer, should consider factors  such as  site  location,  type  of
release and its scope.  The foliowinn  questions may  help the Regional
staff in determining these factors.

1.  What is the location  (e.g., residential area,  schools,  hospitals,

    near vital ecology or protected natural resource)?

2.  Is the release widespread and/or migrating  rapidly?

       (a)  What  factors  could decrease or intensify the extent

            of contamination?

       (b) How is It snL.;:.n:.   : i .-,-•:•:-. direction'.'  •"•.t  vhst  rr-;t-.-?

3.  Whit type of wastes or c-j -\ •=,--. i. tuent.s are present

    (e.g., volatile organics, rr.etals,  etc)?

       (a)  What are the  char ic': 3 r is t ics ( ignitab le , reactive,

            corrosive,  biohazard,  radioactive,  etc.) of  the waste?

       (b)  What  is the background level of each waste or  constituent?

4.  What are the estimatad quantities  released?

5.  What are the known effects of human exposure  (short- and  long-term

    effects)?

6.  Has human exposure actually occurred?

      (a) What kind (e.g., inhalation,  ingestion,  skin contact)?

      (b) What is or will be  the  exposure  pathway  (e.g., air,

          drinking water, food)?

      (c) Are there reports of illness, injury, death?

      (d) How many people are or  will  be affected?

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 7.  Is human exposure  imminent?




        (a) What kind (e.g., inhalation,  inqestion, skin contact)?




        (b) What is or  will be the exposure pathway (e.g., air,




            drink inn water, food)?




        (c) When is it  likely to1 occur?



 '8.  What are the characteristics of  the  exposed popuLi t ion( 3)




     (how many, infants, nursing home residents)?




. 9.  Has there been an  evironmental  impact?



        (a) What evironmental attributes  have been  impacted! e .g. ,




            ground water, air, surface water)?




        (b) What are the known short-term and long-term  effects




            on the evironment of the  released waste or  constituent?



        (c) What natural resource effects have occurred/been



            demonstrated (e.g., fish  kills)?




        (d) What are the known ecological effects?



 10.  Is there a threat  to  the environment?



        (a) When is this threat likely  to materialize  (days,  weeks,




            months)?



        (b) What are the projected effects?



 11.  If response is delayed, how will the situation deteriorate?
                                                         .•*'>••-. i.

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i:-;T:-:K[.-I MEASURES

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                       INTERIM MEASURES
Containers

     a)  Overpack/re-drum
     b)  Construct storage area/move to storaae area
     c)  Seq-.-o-ia: .on
     d)  Sample/analyze and dispose
     e)  Excavation/disoosal
     f )  T.;mpo rai / cap


Surface Impoundments

     a)  Reduce head
     b)  Portvcve r.?*e liquids and/or hiahly mobile wastes
     c)  Stabilize/repair side walls/increase  freeboard/geotextile
     d)  In-Situ  solidification
     e)  Cover (control air release or overflow due  to  rain)
     f)  Interim  ground water measures
     g)  Runoff/run on control (diversion or collection devices)
     h)  Document the concentration of constituents-; _left  in  place
         .:.:•.-  -  : ..••_•;.•?  • -:.j . .- i-iv.-it  •.:••.• :. L -, 7 '._• I": a r vj (• rr i s t i c  was t"s
         is clear, closed*

Landfill

     a)  Runoff/run on control (diversion or collection devices)
     b)  Reduce head on  liner and/or in.  leachate  collection  system
     c)  Repair leachate  collection/removal system  or  french drain
     d)  Install  new leachate collection/removal  system or  french
         drain
     e)  Temporary cap/cover (asphalt, synthetic  or  clay)
     f)  Interim  ground water measures
     g)  Excavation/disposal

Waste  Pile

     a)  Runoff/run on control (diversion or collection devices)
     b)  Cover (polymeric membrane, geotextile or clay
     c)  Solidification
     d)  Interim  ground water measures
     e)  Removal  of the waste pile  for proper  storage
     f)  Excavation/disposal
   When this type of surface  impoundment  is  clean closed,
   there may be constituents  left  in  place.   Some of  these
   constituents may present a  potential threat  to human
   health or the environment  (e.g.  corrosive waste may
   contain heavy metals).

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Ground Water

     a)  Sampling and analysis
     b)  Delineation of plume
     c)  Interceotor trench/ suno/french drain
     •d)  P'-iT.p and - reac/ i n-s i tu  treatment
     e)  Cut-off //alls  (slurry or b-en-.oni t3 ^
     f)  Iriti.:ce c-j ••/•? lopnont of AGT-s

Surface Water Release

     a)  Overflow/underflow dams
     b)  Filter fences
     c)  Runoff/run on  control (diversion or collection  devices)
     d)  Regrading/revegetation
     e)  Cover with geotextile
     f)  Sample and analyze surface waters  and sediments
Tanks
     a)  Leak or cracks detection/ repair
     b)  Relining
     c)  Partial or complete removal
     d)  Pipeline removal or reo lacoinen t
     e)  Secondary containment
Gas ".in ration Carve:":!
     a)  Pipe v.3nc3
     b)  Trench vents
     c)  Gas barriers
     d)  Gas collection system
     e)  Gas treatment system
     f)  Gas recovery


Particulate Emissions

     a)  Truck wash (decontamination unit)
     b)  Re-vegetation
     c)  Application of dust supressent


Other Types of Actions

     a)  Fencing to prevent direct contact
     b)  Alternate water supply to replace contaminated
         drinking water
     c)  Temporary relocation of people
     d)  Extent of contamination studies  into off-site areas
         if permission is obtained as required  under  Section  §3004(v)
     e)  Other actions necessary to protect human  health
         or the environment

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INTERIM MEASURES LANGUAGE




      TO INCLUDE IN




 CORRECTIVE ACTION•ORDERS

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                          CONTAINERS








(1)   Within 	 days,  submit a plan ho EPA which details



     procedures for sampling and analysis of wastes in



     (every container  or specified containers).   Upon



     reciept of EPA's  comments on the plan, Respondant



     shall incorporate those comments and implement the



     plan.  The plan shall be based on the sampling and



     analytical techniques described in SV7-846 (and other



     documents listed  by EPA) .






(2)   Within 	 days, examine every container to  detect any



     deterioration or  leakage.  Overpack or redrum each leaking



     and each substantially  ••••• •;.-.; -.-^ntJiner that -ay loak



     to prevent further or : .• •: • '.•-•-.-•.age .






(3)   Within days,  designate or construct a storage area



     that meets the standards of 40 CFR §264 and is large



     enough for all containers.  The area must have an



     impervious base and be constructed to collect releases.



     Consolidate and place containers that do not require



     overpacking or redrumming and those that are redrummed



     or overpacked in  a temporary on site storage area approved



     by EPA.






(4)   Within 	 days, place containers in a well ventilated



     covered structure with appropriate secondary containment



     in accordance with Part 264 Subpart I requirements.

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5)   If the content of the containers is not known, within    davs ,

    submit a plan to EPA to sample and analyze to determine .

    the proper treatment, storage and/or disposal techniques.


6)   Within 	 days,  remove and dispose of significantly contaminated

    soils (residue of spills or leaks from containers)  largely

    afc or near surface.   (List specific areas).   After removal

    of contaminated  soil, the remaining soil shall be sampled

    and analyzed in  accordance with a plan submitted to EPA

    by the Respondant within 	 days.
  Significantly contaminated areas should be identified
  on a case by case basis by EPA.

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                     SURFACE IMPOUNDMENTS








(1)   Within 	 days,  reduce the he-ad in- thu surface impoundment



     to a level :f 	 in and mint^in that level.  To reduce -he



     head,  punp materials to increase the nreeboard to 	 inches.



     Store  or dispose of the pumped materials in a manner



     that complies with applicable standards of RCRA and if



     appropriate,  the Clean Water Act.






(2)   Within 	 days,  submit a plan to select a method for



     stabilization (solidification, fixation, reduction of



     free liquids  etc.) of the waste.  Within 	 days incorporate



     EPA's  comments into the plan and implement the.revised plan.





(3''   Within 	 days,  -;ub ::;:.•: _-; _)L.v; to pl.i.:-* 3 temporary 'ccv^r



     over the surface irnpo_:n-.::"c-nt to reduce infiltration of



     precipitation and control air releases.  The plan should



     include the design of a cover and method of application



     that assures  that precipitation runs off and does not



     allow ponding on the cover, the cover must have a



     permeability  no greater than 	,  and is compatible



     with the chemical and physical characteristics of the



     waste  being covered, local climate and the other design



     characteristics of the unit including any berms, dikes or



     other appurtenances.  within 	 days incorporate EPA's



     comments into the plan and implement the revised plan.

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(4)   Within 	 days,  submit a plan to document the levels

     of  the concentrations  of hazardous  waste  or constituents

     left in place when a surface impoundment  handling

     characterise ic v/astas  .is clean closed.* Within 	 days,

     incorporate EPA's  comments  into the plan  and implement

     the revised plan.
   When this type of surface impoundment is clean closed,
   there may be constituents left in place.  Some of these
   constituents may present a potential threat to human
   health or the environment (e.g.  corrosive waste may
   contain heavy metals).

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                  LANDFILLS  AND WASTE PILES



(1)   Within 	 days,  submit  a plan to place a cap (temporary)

     over the landfill  or waste pile to prevent surface water

     infiltration, control water and wind erosion or dispersion,

     and isolate and  contain contaminated wastes and volatiles.

     The plan should  include the design and method of application

     that assures that  precipitation runs off and the cap has  a

     permeability no  greater than 	  and is compatible with

     the chemical and physical characteristics of the waste

     being covered, local climate and hydrogeology.   Within 	

     days incorporate EPA's  comments into the plan and implement

     the revised plan.


(2;   Within 	 days, subrni . :i pi-.i.: co uxj ivate material ana

     designate or construct  a storage area that meets the

     standards of 40  CFR §265 and large enough for all the

     excavated waste  or transport to an approved RCRA facility,

     taking into consideration:

          (a)  density of solid waste in a landfill

          (b)  amount of solid waste in a landfill

          (c)  'the settlement to the fill

          (d)  chemical composition and hazards presented by
               the waste

          (e)  the bearing capacity of the fill

          (f)  decomposition rate of the waste

          (g)  proper packaging of the waste

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     Within 	 days incorporate EPA's comments into the plan



     and implement the revised plan.






(3)   Within 	 days,  submit a plan for the installation of



     devices to control suirca-:"1 runoff so r.h.v. (h. doivs not



     contribute to leachate generation or erosion of covered



     materials.  The plan should include the design of diversion



     and collection devices to effect run-on control.  These



     devices can consist of, but not limited to: dikes and



     berms, ditches,  diversions, waterways, bench terraces,



     chutes and downpipes.  Within 	 days incorporate EPA's



     comments into the plan and implement the revised plan.





(4)   Within 	 cays, reduce tho head on chvi iln^r a.id'/'^r  in



     the leachacj coil-ice ion sysU-s.n t .7 ,=)  L •/ •- .-1 oc 	 in and



     maintain that level.  Store or dispose of removed leachate



     in a manner that complies with applicable standards  of RCRA.






(5)   Within 	 days, inspect the leachate collection system



     and repair, replace, or upgrade if necessary. Record  all



     data collected or observations made and maintain this



     record as part of the facility operating record.  If the



     observations or data collected demonstrate  that leachate



     collection system is not  functioning to the degree necessary



     to meet the requirements  of Part 265, submit the inspection



     record to EPA within 	 days for review and comment  and to



     revise Part B of the facility's permit application.

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                         G?.OU\TD uATER








(1)   Within 	 days, sub-nit a plan r.o •.lotermine the extent of



     the contamination and to delin---at.; the plum-).  Activity



     can be directed to-varcis section.-;  >:. plu^e t-ireateni nq



     sensitive areas (list areas).  The plan will  include sampling



     and analysis of the following parameters: (list parameters)



   '  Within 	days incorporate EPA's comments into the  plan



     and implement the revised plan.






(2)   Within 	 days, submit a plan tor t;".e installation  at



     impermeable barriers to divert qround water flow away



     from a waste disposal area, awiy from a sensitive



     environmental area or populated area, or to contain



     contaminated ground wat«r  .ILJC nt ing' d rom the  waste  area.



     Within 	 days incorporate EPA's comments into the  plan



     and implement the revised plan.






(3)   Within 	 days, submit a plan for the installation  of



     a system to capture the plur.io of contaminants based  on



     the hydrogeology of the site and the type and amount of



     contaminants present in the ground water.  The plan



     should include methods to be used to pump the ground



     water in order to lower the water table -50 that:



          (a)  contaminated ground water does not  discharge



               to a receiving stream that is hydraulically



               connected;

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          (b)   ground  water is not in direct contact with



               the waste  site;



          (c)   co prevent leaky aquifers from conta-i ina t i-vr;



               other aquifers.



     Within 	 days incorporate EPA1s comments into th plan



     and implement the revised plan.






(4)   Within 	 days, submit a plan for the installation of



     a system to include  enough number of extraction and



     injection wells that will allow water within the plume



     to be pumped, treated and reintrouduced into the aquifer.



     The pVan shouM includo a around water treatment system



     to address the specific ground water contamination problems.



     Within. 	 d_v.-- in.-:orno ra te EPVs comments and implement



     the revised nlan.






(5)   Within 	 days, submit a plan to establish interim



     concentration levels to monitor the impact of pumping,



     injection, slurry wall construction, etc. on the hydrogeology



     of the site for the  purpose of establishing  ACLs or MCLs.



     Within 	 days incorporate EPA's comments into the plan  and



     implement the revised plan.

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                    SURFACE  WATER  RELEASE










(1)   Within 	 days, .submit  a  plan to select a grading  technique



     to control infiltration,  detain or promote runoff.   within




     days incorporate  EPA's  comments into  the plan and  implement



     the revised plan.






(2)   Within 	 days,  submit  a  plan to install filter fences



     in order to prevent further spread of contamination to



     surface waters.   Filter fences will be constructed  of



     materials that will contain the contaminants in the



     water.  Within 	 days  incorporate EPA's comments  into tho



     plan and implement the  revised plan.






(3)   Within 	 days,  submit  a  plan to establish a  vegetative



     cover to stabilize the  surface of the hazardous disposal



     site.  The plan will address  the following factors:



          (a)  cover soil characteristics  (grain size,



               organic content,  nutrient and Ph levels



               and water content



          (b)  local climate



          (c)  site hydrogeology



          (d)  species compatibility with  other plants



               selected to be  grown on the site, resistance



               to insect damage  and disease, and suitability



               for future land use.



     Within 	 days,  incorporate EPA's comments into the plan



     and implement the revised plan.

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     Owner/operator will maintain vegetation and repair/replant



     as  necessary.






(4)   Within 	 days,  submit a plan for the installation of



     J.i version anrl  :•?]. leot ion device.".  Tc-.°se devices can



     consist of,  but but not limited to:   dikes and berms,



     ditches,  diversions, waterways, bench terraces, chutes



     and downpipes.  Within 	 days of reciept incorporate



     EPA's comments and implement the revised plan.






(5)   Within 	 days,  submit a plan which details procedures



     for sampling analyzing surface waters or sediments which



     'nave received  (point source or non-point source) discharges



     from units (list units).  Within 	 days of reciept,



     \ncorporata EPA's  comments and implement the plan.

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                            TANKS
(1)   Increase inspection frequency or change inspection



     procedures co detect leaks or cracks and repair or replace



     them.






(2)   Within 	 days,  inspect valves and pipes (especially



     joints and connectors)  and repair or replace them.






(3)   Within 	 days,  remove  part of the.waste to prevent overflow



     in the tank..  Monitor liquid level, place a lap on the



     tank or install  a larger or secondary tank to handle



     overflow as necessary.






(4)   Within 	 days,  submit a plan do:: a comple'te repair/



     removal/replacement of  tanks that present structural



     failure (e.g. leaks/cracks).  Within 	 days incorporate



     EPA's comments and implement the revised plan.






(5)   Within 	 days,  submit  a plan for the design, construction



    ' and installation of dikes or other drainage control



     systems to prevent further spread of contamination due



     to releases from the tank.  Within 	 days incorporate



     EPA's comments and implement the revised plan.

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                    GAS MIGRATION CONTROL










Within 	 days, submit a plan for the design and installation




of a gas migration control syscem to control lateral and




vertical migration of gases or vapors'.  The gas migration




control system will include, but not limited to:






(1)  pipe vents and/or;



(2)  trench vents and/or;




(3)  gas barriers and/or;



(4)  gas collection system and/or;




(5)  gas treatment system and/or;



(6)  gas recovery



Within 	 days incorporate EPA1s"comments into the plan and




implement same.

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                    PARTICULATE EMISSIONS











(1)   Within 	 days, develop and install decontamination  units




     to provide for the effective cleaning of  vehicles  and




     personnel entering contaminated areas in  order  to  prevent




     further .spread of contamination.






(2)    Within 	 days, establish a short  term vegetative cover




      to stabilize contaminate surfaces.






(3)   Within 	 days, apply a dust suppressant  to  prevent  spread




     of contamination due to the wind.   Water  is  the most




     common dust suppressant used.   It  is  inappropriate to



     i!."_- co \ I..-M: - od ioucnar.- j.;^ ; oil ';r  .idzar'ious waste to




     control v, ind d !.-;:>•:-r3 i rn .

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                        OTHER ACTIONS











(1)   Within 	 iv/s, submit a plan to collect and analyze




     samples to determine extant of contamination outside




     facility boundaries where permission  is obtained  as



     required by Section §3004(v).






(2)   Within 	 days provide alternative water supplies  to



     the affected community.






(3)   Within 	 days install security  fencinq, warning signs




     or other measures t--. ii.-r.it access to  the site.






(5)   Within 	 clays develoo a public  awareness  proaram  to




     reduce o'r control c •;n-.;c;rri and counter  unfounded  rumors.

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  Attachment  from  -'Cnemical,  Physical  and 3ioloaical  Properties
  of  Compounds  Present  at  Hazardous Waste Sites",  Seotenber  1985
                       TETRACHLOROETHYLENE


Summary

     Tetrachloroethylene  (PCZ, perchloroethylene) induced liver
tumors when administered orally to mice and was found to be
mutagenic using a microbial assay system.  Reproduction toxicity
was observed in pregnant rats and mice exposed to high concentra-
tions.  Animals exposed by inhalation to tetrachloroethylene
exhibited liver, kidney, and central nervous system damage.


CAS Number:  127-18-4

Chemical Formula:  C2C14

IUPAC Name:  Tetrachloroethene

Important Synonyms and Trade Names:  Perchloroethylene, PCE


Chemical and Physical Properties

Molecular Weight:  165.83

Boiling Point:  121°C

Melting Point:  -22.7°C

Specific Gravity:  1.63

Solubility in Water:  150 to 200 mg/liter at 20°C

Solubility in Organics:  Soluble in alcohol, ether, and benzene

Log Octanol/Water Partition Coefficient:  2.88

Vapor Pressure:  14 mm Hg at 20°C


Transport and Fate

     Tetrachloroethylene  (PCE) rapidly volatiziles into the
atmosphere where it reacts with hydroxyl radicals to produce
HC1, CO, CO- and carboxylic acid.  This is probably the most
important transport and fate process for tetrachloroethylene
in the environment.  PCE will leach into the groundwatex, espe-
cially in soils of low organic content.  In soils with high
levels of organics, PCE adsorbs to these, materials and can
Tetrachloroethylene
Page 1
October 1985                                   Cciament Associates

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be bioaccumulated to some degree.   However,  it is unclear if
tetrachloroethylene bound to organic material can be degraded
by microorganisms or-raust be desorbed to be  destroyed.  There
is some evidence that higher organisms can metabolize PCE.


Health Effects

     Tetrarhloroethylene was found to produce liver cancer
in male and female mice when administered orally by gavage
(NCI 1977).  Unpublished gavage studies in rats and mice per-
formed by the National Toxicology Program (NTP)  showed hepato-
cellular carcinomas in mice and a slight, statistically insig-
nificant increase in a rare type of kidney tumor.   NTP is
also conducting an inhalation carcinogenicity study.  Elevated
mutagenic activity was found in Salmonella strains treated
with tetrachloroethylene.  Delayed ossification of skull bones
and sternebrae were reported in offspring of pregnant mice
exposed to 2,000 rag/m  of tetrachloroethylene for 7 hours/day.
on days 6-15 of gestation.  Increased fetal resorptions were
observed after exposure of pregnant rats to tetrachloroethylene.
Renal toxicity and hepatotoxicity have been noted following
chronic inhalation exposure of rats to tetrachloroethylene
levels of 1,356 mg/m .  During the first 2 weeks of a subchronic
inhalation study, exposure to concentrations of 1.,622 ppm
(10,867 mg/m ) of tetrachloroethylene produced signs of central
nervous system depression, and cholinergic stimulation was
observed among rabbits, monkeys, rats, and guinea pigs.


Toxicity to Wildlife and Domestic Animals

     Tetrachloroethylene is the most toxic of the chloroethylenes
to aquatic organisms but is only moderately toxic relative
to other types of compounds.  The limited acute toxicity data
indicate that the LC   value for saltwater and freshwater species
are similar, around 10,000 ng/liter; the trout was the most
sensitive  (LC5Q » 4,800 ug/liter).  Chronic values were 840
and 450 ug/liter for freshwater and saltwater species, respec-
tively, and an acute-chronic ratio of 19 was calculated.

     No information on the toxicity of tetrachloroethylene
to terrestrial wildlife or domestic animals was available in
the literature reviewed.
 J. Mennear, NTP Chemical Manager; personal communication, 1984
Tetrachloroethylene
Page 2
October 1985

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NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (NI03H).
     1983.   Registry of TOxic Effects of Chemical Substances.
     Data. Base.  Washington, D.C.  October 1983

U.S. ENVIRONMENTAL PROTECTION AGENCY (USEPA).  1979.  Health
     Assessment Document cor Ie cracnio: _>e c.ny iene  ( Pcrcr.l;: ; . -_-. yl -
     ene).   External Review Draft No. 1, April 1979.

U.S. ENVIRONMENTAL PROTECTION AGZNCY f.'SiPA).  1979.  Water-
     Related Environmental Fate of 129 Priority Pollutants.
     Washington, D.C.  December 1979.  EPA 440/4-79-029

U.S. ENVIRONMENTAL PROTECTION AGENCY (USEPA).  1980.  Ambient
     Water Quality Criteria for TetrachloroethyIene.  .Office
     of Water Regulations and Standards, Criteria and Standards
     Division, Washington, D.C.  October 1980.  EPA 440/5-80-073

U.S. ENVIRONMENTAL PROTECTION AGENCY (USEPA).  1984.  Health
     Effects Assessment for Tetrachloroethylene.  Final Draft.
     Environmental Criteria and Assessment Office, Cincirnati,
     Ohio.  September 1984.  ECAO-CIN-H009

U.S. ENVIRONMENTAL PROTECTION AGENCY (USEPA).  19SS.  Health
     Assessment Document for Chloroform.  Office of Health.
     and Environmental Assessment, Washington, .D.C.  September
     1985.   EPA 600/8-84/004F

VERSCHUEREN, K.  1977.  Handbook of Environmental Data, on Organic-
     Chemicals.  Van Nostrand Reinhold .Co., New .York.  659 pages

WEASTV R.E., ed.  1981.  Handbook of Chemistry and Physics.
     62nd ed.  CRC Press, Cleveland, Ohio.  2,332 pages
Tetrachloroethylene
Page 4
October 1985

-------
               RCRA FACILITY INVESTIGATION  (RFI) COMPONENTS
1
DESCRIPTION
OF CURRENT
CONDITIONS


II
PRE-INVESTIGATION
EVALUATION OF
CORRECTIVE MEASUSRES
TECHNOLOGIES



III
RR
WORKPLAN
REQUIREMENTS



IV
FACILITY
INVESTIGATION


• FACILITY BACKGROUND

•NATURE AND EXTENT
 OF CONTAMINATION

• IMPLEMENTATION AND
 INTERIM MEASURES
                     • PROJECT MANAGEMENT PLAN

                     • DATA COLLECTION QUALITY
                      ASSURANCE PLAN

                     • DATA MANAGEMENT PLAN

                     • HEALTH AND SAFETY PLAN

                     • COMMUNITY RELATIONS PLAN
                  • ENVIRONMENTAL SETTING

                  • SOURCE CHARACTERIZATION

                  • CONTAMINATION
                   CHARACTERIZATION

                  • POTENTIAL RECEPTOR
                   IDENTIFICATION
    INVESTIGATION
     ANALYSIS
  •DATA ANALYSIS

  • PROTECTION STANDARDS
                                   VI
LABORATORY AND
 BENCH-SCALE
 OPERATIONS
                                                              VII
REPORTS
                           • PRELIMINARY AND WORKPLAN

                           • PROGRESS

                           •DRAFT AND FINAL
  As outlined in Corrective Action Plan. 11/14/86

-------
           CORRECTIVE MEASURES STUDY (CMS) COMPONENTS
       VIII
 IDENTIFICATION AND
 DEVELOPMENT OF THE
CORRECTIVE MEASURE
   ALTERNATIVE OR
   ALTERNATIVES
                            IX
   EVALUATION OF
  THE CORRECTIVE
MEASURE ALTERNATIVE
  OR ALTERNATIVES
JUSTIFICATION AND
 RECOMENDATION
OF THE CORRECTIVE
  MEASURE OR
   MEASURES
                                                XI
REPORTS
 DESCRIPTION OF
 CURRENT SITUATION

 ESTABLISHMENT OF
 CORRECTIVE ACTION
 OBJECTIVES

 SCREENING OF
 CORRECTIVE
 MEASURES
 TECHNOLOGY

 IDENTIFICATION OF
 THE CORRECTIVE
 MEASURE ALTERNATIVE
 OR ALTERNATIVES
  TECHNICAL/
  ENVIRONMENTAL/
  HUMAN
  HEALTH/
  INSTITUTIONAL

  COST ESTIMATE
 TECHNICAL

 ENVIRONMENTAL

 HUMAN HEALTH
PROGRESS

DRAFT

FINAL
As outlined in Corrective Action Plan. 11/14/86

-------
   CORRECTIVE MEASURES IMPLEMENTATION (CMI) COMPONENTS  *
       XII
    CORRECTIVE
     MEASURE
  IMPLEMENTATION
   PROGRAM PLAN
  PROGRAM
  MANAGEMENT
  PLAN

  COMMUNITY
  RELATIONS
  PLAN
      XIII
   CORRECTIVE
    MEASURE
     DESIGN
•DESIGN PLANS AND
 SPECIFICATION

• OPERATION AND
 MAINTENANCE PLAN

• COST ESTIMATE

• CONSTRUCTION
 QUALITY ASSURANCE
 OBJECTIVES

• HEALTH AND
 SAFETY PLAN

• DESIGN PHASE
     XIV
  CORRECTIVE
   MEASURE
 CONSTRUCTION
• RESPONSIBILITY
 AND AUTHORITY

> CONSTRUCTION
 QUALITY ASSURANCE
 PERSONNEL •
 QUALIFICATIONS

• INSPECTION
 ACTIVITIES

• SAMPLING
 REQUIREMENTS

• DOCUMENTATION
   XV
 REPORTS
PROGRESS

DRAFT

FINAL
As outlined in Corrective Action Plan. 11/14/86

-------
                                          9902.3
 SERA
          United States
          Environmental Protection
          Agency
            Office of
            Solid Waste and
            Emergency Response
DIRECTIVE NUMBER:9902
TITLE: RCRA CORRECTIVE ACTION PLAN

APPROVAL DATE: November 14, 1986
EFFECTIVE DATE: November 14, 1986
ORIGINATING OFFICE^^
S FINAL
D DRAFT
 LEVEL OF DRAFT
   D A — Signed by AA or OAA
   08 — Signed by Office Director
   DC — Review & Comment
REFERENCE (other documents):
SWER      OSWER      OSWER
  DIRECTIVE    DIRECTIVE   Dl

-------
United States Envirc— :--•:' °rrs: 	 :-- —
^ Wei.-...'..,.-... ....... -
V>CrA OSWER Directive Initiation Reauest
1. Directive Number
9902.3
2. Originator Information
Nam* of Contact Parson
Mark Hi Ibertson
3. Till*
RCRA Correction Action Plan
Mail Cod*
WH-527
Office
OWPE/RCRA Enf. Div.
Telephone Number
382-4849

4. summary oi Direct /inctua» tintf statemant of purport The RCRA Corrective Action Plan is intended to aid
the Regions and States in determining ana directing the specific work which must be
performed .as part of a complete corrective action program. It provides a technical frame
work for use during the development of Corrective Action Orders and corrective action
permit requirements.
5. Keywords
RCRA, Corrective Action, RCRA
Corrective Pleasure incerpreuauiun
Facility Investigation, Corrective Measure Study,
6*. Does this Directive Supersede Previous Directives)? Q Yes \K\ No What directive (numtttr. titlil
b. Does It Supplement Previous Directives)? Q Yes Q No Whet Directive (number, titlt)
7.. Draft Laval
DA — Signed by AA/OAA E 8 - Signad'by Office Director D C — For Review & Comment D In Development
This Request Meets OSWER Directives System Format
8. Signature of Lead Office Directives Coordinator '
A^-nWu y. ^W
9. Name and Title of Approving Official
Oat*
)i-n-£&
Data
OSWER   OSWER   OSWER
  DIRECTIVE  DIRECTIVE

-------
                                                                           9902.3
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                              WASHINGTON, D.C. 20460
                                   NOV  I 4  1986
MEMORANDUM

SUBJECT:  Interim Final Corrective Action Plan'

FROM:     Gene A. Lucero, Director
          Office of Waste Programs

          Marcia Williams, Director
          Office of Solid Waste
                                                                    OFFICE OF
                                                          SOLID WASTE AND EMERGENCY RESPONSE


                                                          OSWER DIRECTIVE #9902
TO:
          Addressees
     Attached is the interim final guidance document entitled the Corrective
Action Plan (CAP).  The CAP will assist you in development of Corrective
Action Orders (§ 3008(h)) and corrective action requirements in permit
applications and permits (§ 3004(u)&(v)).  The purpose of the CAP is to
aid Regions and States in determining and directing the specific work the
owner/operator or respondent must perform, as part of a complete corrective
action program.  The CAP should be used as a technical framework during
the development of Corrective Action Orders and corrective action permit
requirements.   As specific, detailed guidance is issued by EPA Headquarters,
the CAP will be modified to reflect and incorporate these documents.

     The CAP provides a framework for the development of a site-specific
schedule of compliance to be included in a permit or a compliance schedule
in a Corrective Action Order.  It does so by laying out scopes of work
for the three essential phases of a complete corrective action program.
These three phases and their objectives are as follows:

       Phase I .  -  RCRA Facility Investigation (RFI) - to evaluate
                    thoroughly the nature and extent of the release
                    of hazardous waste and hazardous constituents
                    and to gather necessary data to support the
                    Coirrective Measure Study.

       Phase II  -  Corrective Measures Study (CMS) - to develop
                    and evaluate a corrective measure alternative or
                    alternatives and to reccmmend the final correc-
                    tive measure or measures.

       Phase III -  Corrective Measures Implementation (CMI) - to
                    design, construct, operate, maintain and monitor
                    the performance of the corrective measure or
                    measures selected.

-------
                                                                          9902.3
                                   -2-

     The CAP is consistent with existing guidance documents as well as
 those currently under development at Headquarters.  These documents are
 listed below:

       Existing;

       0  §3008(h) Policy Guidance on Interim Status Corrective
            Action Authority  (10/85);

       0  Draft Interim Measure Guidance (12/85);

       0  Draft §3008,(h.) Model Order (12/85);

       0  Draft National RCRA Corrective Action Strategy (9/86); and

       0  RCRA Facility Assessment Guidance  (10/86).


       Under Development:

       0  RCRA Facility Investigation (RFI) Guidance -  will provide
            the Owner/ Operator [Respondent] with various levels of
            investigation technigues to choose from in developing a
            site-specific work plan to fully characterize releases.

       0  Corrective Measure  (CM)  Guidance - will provide the Owner/
            Operator [Respondent!  with criteria and technical
            information for evaluating and selecting the measure or
            measures that will meet specific clean-up levels.


     The CAP provides an overall model for a corrective action compliance
schedule.  The scopes of work contained in the CAP should not be considered
"boilerplate", but rather as a "menu" of possible activities to be required
on a site-specific basis.  Only those tasks and reports necessary and
appropriate to the specific situation should be required of the Owner/Operator
 [Respondent].  we also encourage the Regions to make available to the
Owner/Operator [Respondent]  existing model plans that are relevant to RCRA
activities.  For example, the "Occupational Safety and Health Guidance
Manual for Hazardous Waste Site Activites Operating Safety Guidelines"
contains a model that can be used for the Health and Safety Plan outlined
in the CAP.

     A RCRA Facility Assessment (RFA) will have been conducted at the
facilities that are to receive permits, and for seme facilities which are
issued §3008(h)  Orders.  The results of the RFA should be used as the basis
for focusing the RCRA Facility Investigation (RFI)  compliance schedules
for individual sites, and should provide the necessary data for completion
of the "background information" components of the CAP.

-------
                                                                          9902.3
                                   -3-

     Finally, we  feel it is necessary to stress the importance of site-
specific technical detail in the development of Corrective Action Orders
and corrective action permit requirements.  Each facility has unique
characteristics and circumstances affecting it that need to be incorporated
into any requirements for corrective action.  Without this up-front
detail, many owner/operators or respondent will provide us with submittals
which lack the technical detail necessary to perform a thorough corrective
measure program.  In addition to providing a detailed scope of work, the
Agency should also propose a site-specific time-frame for completion of
the work.  Enforcement of permit conditions or requests for relief in an
Order is always easier when very specific detail is included.  Without a
detailed schedule of compliance in a permit or a compliance schedule in
a Corrective Action Order, we can expect untimeliness in submittals and
actions.

     It was also  intended that the model scopes of work in the CAP foster
timely, concise submissions by Owner/Operators.  Therefore, when modifying
these scopes of work with site-specific information, the scopes of work
should only require that information which is necessary for the subject
facility, thereby minimizing, the number and length of Owner/Operator
submitions and our review time.  (In general, the average length of
individual Owner/Operator submittals should not exceed 20 pages, excluding
appendices.)

     Please note that the CAP addresses comments by lead Regions.  We
would appreciate additional comments based upon your experiences in
using the CAP.  Should you have any questions with regard to this document,
you may call Anna Buonocore (FTS 382-4829), Mark Gilbertson (FTS 382-4849)
or Peter Ornstein (ETS 382-5618).

Attachment

ADDRESSEES:

Hazardous Waste Management Division Directors - Regions I-X
Hazardous Waste Branch Chiefs - Regions T-X
Enforcement Section Chiefs - Regions I-X
Permit Section Chiefs - Regions I-x
Regional Counsels - Regions I-X
Lloyd Guerci, OWPE
Steve Heare, OWPE
Sylvia Lowrance, OWPE
Frank Russo, OWPE
Peter Cook, OWPE
Bruce Weddle, OSW
Dave Pagan, OSW
Terry Grcgan, OSW
George Dixon, OSW
Art Day, OSW

-------
                                                  9902.3
RCRA CORRECTIVE ACTION PLAN
       INTERIM  FINAL
       November 1986

-------
                       RCRA CORRECTIVE ACTION PLAN


0 INTRODUCTION


0 RCRA FACILITY INVESTIGATION

        Task I:  Description of Current Conditions

       Task II:  Pre-Investigation Evaluation of Corrective Measure
                 Technologies

      Task III:  RFI Workplan Requirements

       Task IV:  Facility Investigation

        Task V:  Investigation Analysis

       Task TV:  Laboratory and Bench-Scale Studies

      Task VII:  Reports


0 CORRECTIVE MEASURE STUDY

     Task VIII:  Identification and Development of the Corrective
                 Measure Alternative or Alternatives

       Task IX:  Evaluation of the Corrective Measure Alternative or
                 Alternatives

        Task X:  Justification and Recommendation of the Corrective
                 Measure or Measures

       Task XI:  Reports


 0 CORRECTIVE MEASURE IMPLEMENTATION

      Task XII:  Corrective Measure Implementation Program Plan

     Task XIII:  Corrective Measure Design

      Task XIV:  Corrective Measure Construction

       Task XV:  Reports

-------
                                                                             S.-S02.3

                                    -1-
 INTRODUCTION

 The objective of a Corrective Action Program at a hazardous waste management
 facility is to evaluate the nature and extent of the release of hazardous
 waste or constituents; to evaluate facility characteristics; and to
 identify, develop, and implement the appropriate corrective measure or
 measures adequate to protect human health and the environment.  The follow-
 ing bullets identify components necessary-to assure a complete corrective
 action program.  It should be recognized that the detail required in each
 of these steps will vary depending on the facilty and its complexity:

 0  Locate the source(s) of the release(s) of contaminants (e.g. regulated
    units, solid waste management units, and other source areas)

 0  Characterize the nature and extent of contamination both within
    the facility boundaries and migrating from the facility.  This would
    include defining the pathways and methods of migration of the hazardous
    waste or constituents, including the media, extent, direction, speed,
    complicating factors inflencing movement, concentration profiles,
    etc.

 0  Identify areas and populations threatened by releases from the facility

 0  Determine short and lonq term, present and potential threats of releases
    from  the facility on human health and/or the environment

 0  Identify and implement a interim measure or measures to abate the
    further spread of contaminants, control the source of contamination,
    or otherwise control the releases themselves

 0  Evaluate the overall integrity of containment structure and activities
    at the site intended for long-term containment

 0  Identify, develop,  and implement a corrective measure or.measures to
    prevent and remediate releases of hazardous waste or constituents frcm
    the facility

 0  Design a program to monitor the implementation,  maintenance and
    performance of any interim or final corrective measure(s)  to ensure
    that  human health and. the environment are being  protected

 The purpose of the Corrective Action Plan (CAP)is to aid Regions and
 States in determining  and directing the specific work the owner/operator
 or respondent must perform, as part of a complete corrective action
 program.   The Corrective Action Plan is a document  specifically intended
.to assist. Regipns and  States in the development of  Corrective Action
 Orders (§ 3008(h))  and corrective action requirements in permit applications
 and permits (§ 3004(u)&(v)).  It does so by laying  out scopes of work  for
 the three essential phases of a complete corrective action program which
 can be used to formulate facility-specific scopes of work for a order  or

-------
                                                                           990-2.3

                                   -2-
permit.  These three phases and their objectives are as follows:

       Phase T   -  RCRA Facility Investigation (RFI) - to evaluate
                    thoroughly the nature and extent of the release
                    of hazardous waste and hazardous constituents
                    and to gather necessary data to support the
                    Corrective Measure Study.

       Phase II  -  Corrective Measures Study (CMS) - to develop
                    and evaluate corrective measure alternative or
                    alternatives and to reconmend the final correc-
                    tive measure or measures.

       Phase III -  Corrective Measures Implementation (CMI) - to
                    design, construct, operate, maintain and monitor
                    the performance of the corrective measure or
                    measures selected.

Users of the CAP should understand that it is designed to identify actions
that facility owner/operator or respondent must take as part of a
corrective action program.  It does not identify the steps that remain
the responsibility of the regulatory agency.  To clarify this interaction
between the facility owner/operator or respondent, Figure 1 represents
the flowchart of owner/operator or respondent submittals and Agency
actions for the three.phases of the CAP.

     The CAP scopes of work should not be considered "boilerplate."  The
scopes of work in the CAP are models and must be modified, enhanced or
sections deleted based on site-specific situations.  Information generated
from investigations such such as RCRA Facility Assessments (RFAs) should
be used to tailor the scope of work to address facility-specific situations.
The following are some examples where site-specifics reguire modification
to the CAP model scopes of work.

0  If the contamination problem at a facility is merely a small soil
   contamination problem, then the CAP should be scaled down accordingly.

0  In complicated contamination situations, the Health and Safety Plan
   and Community Relations Plans may need to be comprehensive.   However,
   in simple contamination situations, these plans may be very brief.

0  If site-specifics conditions reguire more detail than what has been
   scoped out in any particular section of the CAP, then the CAP should
   be enhanced accordingly.

0  If there is sufficient information on a site to preclude an air release,
   then it would not be necessary to reguire the owner/operator or respond-
   ent to perform an air contamination characterization.  The air
   contamination characterization work under the RFI (Task IV, C, 4)
   should be deleted.

-------
                                        -3-
                                  Fioure  1.
                                                                       .1302.3
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                       '/Design &  ^
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-------
                                                                            9902.3
                                   -4-

   If interim measures are underway, scheduled or contemplated at a
   facility, then the Interim Measures section under the RFI (Task I, C)
   should be modified to specifically reference the interim measures.

   If possible, the CAP should focus the owner/operator or respondent on
   specific solid waste management units and other areas of interest, as
   well as known waste management activity areas (i.e. waste recycling
   units, wastewater treatment tanks).

   If only one corrective measure alternative is appropriate for a given
   situation, and it would not be necessary to reguire the owner/operator
   or respondent to further investigate the possibility of other corrective
   measure alternatives, then the scopes of work (citations) would be
   modified to reflect this situation.
   Finally, it is necessary to stress the importance of site-specific
technical detail in the development of Corrective Action Orders and
corrective action permit reguirements.  When the scope of work is specific
to the facility, it is easier to enforce.  Each facility has unigue
characteristics and circumstances affecting it that need to be incorporated
into any reguirements for corrective action.  Without this many owner/operators
or respondents will provide us with submittals which lack the necessary
information to perform a corrective measure program.  In addition to
providing a adequate scope of work, the Agency should also propose a
site-specific time-frame for completion of the work.

-------
                                                                            9902.3
                                   -5-

             SCOPE OF KTORK FOR A RCRA FACILITY INVESTIGATION (RFI)
                                    AT
                         [SPECIFY FACILITY NAME]
PURPOSE

The purpose of this RCRA Facility Investigation is to determine the nature
and extent of releases of hazardous waste or constituents from requlated
units, solid waste management units, and other source areas at the facility
and to gather all necessary data to support the Corrective Measures
Study.  The Owner/Operator  [Respondent] shall furnish all personnel,
materials, and services necessary for, or incidental to, performing the
RCRA remedial investigation at [specify facility name].

[NOTE: This scope of work is intended to foster timely, concise submissions
by Owner/Operators.  To achieve this goal, it is important when using
the model scope of work to consider facility specific conditions.  This
scope of work should be modified as necessary to require only that infor-
only
:ion.]
nation necessary to complete the RCRA Facility Investigation

SCOPE

The RCRA Facility Investigation consists of seven tasks:

  Task I:  Description of Current Conditions

           A.  Facility Background
           B.  Nature and Extent of Contamination
           C.  Implementation of Interim Measures

 Task II:  Pre-Investigation Evaluation of Corrective Measure Technologies

Task III:  RFI Workplan Requirements

           A.  Project Management Plan
           B.  Data Collection Quality Assurance Plan
           C.  Data Management Plan
           D.  Health and Safety Plan
           E.  Community Relations Plan

 Task W:  Facility Investigation

           A.  Environmental Setting
           B.  Source Characterization
           C.  Contamination Characterization
           D.  Potential Receptor Identification

-------
                                                                            9902.3

                                   -6-
  Task V:  Investigation Analysis
           A.  Data Analysis
           B.  Protection Standards

 Task VI:  Laboratory and Bench-Scale Studies

Task VII:  Reports
           A.  Preliminary and Workplan
           B.  Progress
           C.  Draft and Final

-------
                                                                            9902.3

                                   -7-

TASK I; DESCRIPTION OF CURRENT CONDITIONS

The Owner/Operator [Respondent]  shall submit for U.S. EPA approval
a report providing the background information pertinent to the facility,
contamination and interim measures as set forth below.  The data gathered
during any previous investigations or inspections and other relevant data
shall be included.

A.  Facility Background

    The Owner/Operator's [Respondent's]  report shall summarize the regional
    location, pertinent boundary features, general facility physiography,
    hydrcgeolcgy, and historical use of the facility for the treatment,
    storage or disposal of solid and hazardous waste.  The Owner/Operator's
    [Respondent's] report shall include:

    1.  Map(s) depicting the following:

        a.  General geographic location;

        b.  Property lines, with the owners of all adjacent property clearly
            indicated;

        c.  Topography and surface drainage (with a contour interval of
            [number]  feet and a scale of 1 inch = 100 feet) depicting all
            waterways, wetlands, floodplains,  water features,  drainage
            patterns, and surface-water  containment areas;

        d.  All tanks, buildings, utilities, paved areas,  easements,
            rights-of-way, and other features;

        e.  All solid or hazardous waste treatment, storage or disposal
            areas active after November 19, 1980;

        f.  All known past solid or hazardous waste treatment, storage or
            disposal  areas regardless of whether they were active on
            November 19, 1980;

        g.  All known past and present product and waste underground tanks
            or piping;

        h.  Surrounding land uses (residential, ccmmercial, agricultural,
            recreational); and

        i.  The location of all production and ground-water monitoring wells.
            These wells shall be clearly labeled and ground and top of
            casing elevations and construction details included (these elev-
            ations and details may be included as an attachment).

        All maps shall be consistent with the requirements set forth in
        40 CFR §270.14 and be of sufficient detail and accuracy to locate
        and report all current and future work performed at the site;

-------
                                                                           9902.3

                                   -8-

    2.  A history and description of ownership and operation, solid and
        hazardous waste generation, treatment, storage and disposal activities
        at the facility;

    3.  Approximate dates or periods of past product and waste spills,
        identification of the materials spilled, the amount spilled, the
        location where spilled, and a description of the response actions
        conducted (local, state, or federal response units or private"
        parties), including any inspection reports or technical reports
        generated as a result of the response; and

    4.  A summary of past permits requested and/or received, any enforcement
        actions and their subsequent responses and a list of documents  and
        studies prepared for the facility.

B.  Nature and Extent of Contamination

    The Owner/Operator  [Respondent]  shall prepare and submit for U.S. EPA
    approval a preliminary report describing the existing information on
    the nature and extent of contamination.

    1.  The Owner/Operator's [Respondent's] report shall summarize all
        possible source areas of contamination.  This, at a minimum,
        should include all regulated units, solid waste management units,
        spill areas, and other suspected source areas of contamination.
        For each area, the Owner/Operator  [Respondent] shall identify
        the following:

        a.  Location of unit/area (which shall be depicted on a facility
            map);

        b.  Quantities of solid and hazardous wastes;

        c.  Hazardous waste or constituents, to the extent known; and

        d.  Identification of areas where additional information is
            necessary.


    2.  The Owner/Operator [Respondent]  shall prepare an assessment and
        description of the existing degree and extent of contamination.
        This should include:

        a.  Available monitoring data and qualitative information on
            locations and levels of contamination at the facility;

        b.  All potential migration pathways including information on
            geology, pedology, hydrogeolcgy, physiography, hydrology,
            water quality, meterology, and air quality;  and

        c.  The potential impact(s)  on human health and the environment,
            including demography,  ground-water and surface-water use, and
            land use.

-------
                                                                           9902.3
                                   -9-

C.  Implementation of Interim Measures

    The Owner/Operator [Respondent's]  report shall document  interim
    measures which were or are being undertaken at the  facility.   This
    shall include:

    1.  Objectives of the interim measures:  how the measure  is mitigating
        a potential threat to human health and  the environment and/or
        is consistent with and integrated into  any long term solution
        at the facility;

    2.  Design, construction, operation,  and maintenance requirements;

    3.  Schedules for design, construction and  monitoring; and

    4.  Schedule for progress reports.

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                                                                            9902.3

                                    -10-


 TASK II:   PRE-INVESTIGATION EVALUATION OF CORRECTIVE  MEASURE TECHNOLOGIES
 Prior to starting  the facility investigation,  the Owner/Operator
 [Respondent]  shall submit  to EPA a  report  that identifies the potential
 corrective measure technologies that may be used on-site or off-site for
 the containment, treatment,  remediation, and/or disposal of contamination.
 This report shall  also identify any field  data that needs to be collected
•in the facility investigation to facilitate the evaluation and selection
 of the final  corrective measure or  measures (e.g., compatibility of
 waste and construction materials, information  to evaluate effectiveness,
 treatability  of wastes, etc.).

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                                                                            9902.3

                                   -11-

TASK III;  RFI WORKPIAN REQUIREMENTS

The Owner/Operator  [Respondent] shall prepare a RCRA Facility Investigation
(RFI) Workplan.  This RFI Workplan shall include the development of several
plans, which shall be prepared concurrently.  During the RCRA Facility
Investigation, it may be necessary to revise the RFI Vtorkplan to increase
or decrease the detail of information collected to acccmodate the facility
specific situation.  The RFI Vforkplan includes the following:

A.  Project Management Plan

    The Owner/Operator [Respondent] shall prepare a Project Management Plan
    which will include a  discussion of the technical approach, schedules,
    budget, and personnel.  The Project Management Plan will also include a
    description of gualifications of personnel performing or directing the
    RFI, including contractor personnel.  This plan shall also document
    the overall management approach to the RCRA Facility Investigation.

B.  Data Collection Quality Assurance Plan

    The Owner/Operator [Respondent] shall prepare a plan to document all
    monitoring procedures: sampling, field measurements and sample analysis
    performed during the investigation to characterize the environmental
    setting, source, and contamination, so as to ensure that all information,
    data and resulting decisions are technically sound, statistically valid,
    and properly documented.

    1.   Data Collection Strategy

        The strategy section of the Data Collection Quality Assurance Plan
        shall include but not be limited to the following:

        a.   Description of the intended uses for the data,  and the necessary
            level of precision and accuracy for these intended uses;

        b.   Description of methods and procedures to be used to assess the
            precision, accuracy and completeness of the measurement data;

        c.   Description of the rational used to assure that the data
            accurately and precisely represent a characteristic of a
            population, parameter variations at a sampling  point, a process
            condition or an  environmental condition.   Examples of factors
            which shall be considered and discussed include:

              i)   Environmental conditions at the time of sampling;

             ii)   Number of  sampling points;

            iii)   Representativeness of selected media; and

             iv)   Representativeness of selected analytical parameters.

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                                                                        9902.3

                               -12-

    d.  Description of the measures to be taken to assure that the following
        data sets can be compared to each other:

           i)  RFI data generated by the Owner/Operator over some time period;

          ii)  RFI data generated by an outside laboratory or consultant versus
               data generated by the Owner/Operator;, ,,

         iii)  Data generated by separate consultants or laboratories; and

          iv)  Data generated by an outside consultant or laboratory over some
               time period.

    e.  Details relating to the schedule and information to be provided in
        quality assurance reports.  The reports should include but not be
        limited to:

           i)  Periodic assessment of measurement data accuracy,  precision,
               and completeness;

          ii)  Results of performance audits;

         iii)  Results of system audits;

          iv)  Significant quality assurance problems and recommended
               solutions; and

           v)  Resolutions of previously stated problems.

2.  Sampling

    The Sampling section of the Data Collection Quality Assurance Plan
    shall discuss:

    a.  Selecting appropriate sampling locations, depths, etc.;

    b.  Providing a statistically sufficient number of sampling sites;

    c.  Measuring all necessary ancillary data;

    d.  Determining conditions under which sampling should be conducted;

    e.  Determining which media are to be sampled (e.g., ground water,
        air, soil, sediment, etc.);

    f.  Determining which parameters are to be measured and where;

    g.  Selecting the frequency of sampling and length of sampling period;

    h.  Selecting the types of sample (e.g., composites vs. grabs) and
        number of samples to be collected;

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                                                                        9902.3


                               -13-

    i.  Measures to be taker, to prevent contamination if the-sampling
        equipment and cross contamination between sampling points;

    j.  Documenting field sampling operations and procedures, including;

           i)  Documentation of procedures for preparation of reagents.or
               supplies which becone an integral part of the sample (e.q.,
               filters, and adsorbing reagents);

          ii)  Procedures and forms for recording the exact location and
               specific considerations associated with sample acquisition;

         iii)  Documentation of specific sample preservation method;

          iv)  Calibration of field devices;

           v)  Collection of replicate samples;

          vi)  Submission of field-biased blanks, where appropriate;

         vii)  Potential interferences present at the facility;

        viii)  Construction materials and techniques, associated with
               monitoring wells and piezometers;

          ix)  Field equipment listing and sample containers;

           x)  Sampling order; and

          xi)  Decontamination procedures.

    k.  Selecting appropriate sample containers;

    1.  Sample preservation; and

    m.  Chain-of-custody, including:

         i)  Standardized field tracking reporting forms to establish sample
             custody in the field prior to and during shipment; and

        ii)  Pre-prepared sample labels containing all information necessary
             for effective sample tracking.

3.  Field Measurements

    The Field Measurements section of the Data Collection Quality Assurance
    Plan shall discuss:

    a.  Selecting appropriate field measurement locations, depths, etc.;

    b.  Providing a statistically sufficient number of field measurements;

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                                                                       9902.3
                               -14-

    c.  Measuring all necessary ancillary data;

    d.  Determining conditions under which field measurement should be
        conducted;

    e.  Determining which media are to be addresssed by appropriate field
        measurements (e.g., ground water, air, soil, sediment, etc.);

    f.  Determining which parameters are to be measured and where;

    g.  Selecting the frequency of field measurement and length of field
        measurements period; and

    h.  Documenting field measurement operations and procedures, including:

           i)  Procedures and forms for recording raw data and the exact
               location, time, and facility-specific considerations
               associated with the data acquisition;

          ii)  Calibration of field devices;

         iii)  Collection of replicate measurements;

          iv)  Submission of field-biased blanks, where appropriate;

           v)  Potential interferences present at the facility;

          vi)  Construction materials and techniques associated with
               monitoring wells and piezometers use to collect field
               data;

         vii)  Field equipment listing;

        viii)  Order in which field measurements were made; and

          ix)  Decontamination procedures.

4.  Sample Analysis

    The Sample Analysis section of the Data Collection Quality Assurance Plan
    shall specify the following:

    a.  Chain-of-custody procedures, including:

           i)  Identification of a responsible party to act as sample
               custodian at the laboratory facility authorized to sign
               for incoming field samples, obtain documents of shipment,
               and verify the data entered onto the sample custody records;

          ii)  Provision for a laboratory sample custody log consisting of
               serially numbered standard lab-tracking report sheets; and

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                                                                    9902.3
                           -15-
      iii)   Specification of laboratory  sample custody procedures  for
            sample handling, storage, and disperseraent for analysis.

b.  Sample  storage procedures and storage times;

c.  Sample  preparation methods;

d.  Analytical procedures, including:

        i)   Scope and application of the procedure;

       ii)   Sample matrix;

      iii)   Potential interferences;

       iv)   Precision and accuracy of the methodology; and

       v)   Method detection limits.

e.  Calibration procedures and frequency;

f.  Data reduction, validation and reporting;

g.  Internal guality control checks, laboratory performance and
    systems audits and frequency, including:

       i)  Method blank(s);

      ii)  Laboratory control sample(s);

    iii)  Calibration check sample(s);

      iv)  Replicate sample(s);

      v)  Matrix-spiked sample(s);

     vi)  "Blind" quality control sample(s);

    vii)  Control charts;

   viii)  Surrogate samples;

      ix)  Zero and span gases; and

      x)  Reagent quality control checks.

    [A performance audit will be conducted by U.S. EPA on the laboratories
    selected by the Owner/Operator [Respondent].  This audit must be completed
    and approved prior to the facility investigation.]

h.   Preventive maintenance procedures and schedules;

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                                                                           9902.3
                                   -16-

        i...  Corrective action (for laboratory problems); and

        j.  Turnaround time.

C.  Data Management Plan

    The Owner/Operator [Respondent!  shall develop and initiate a Data
    Management Plan to document and track investigation data and results.
    This plan shall identify and set up data documentation materials and
    procedures, project file reauirements, and project-related progress
    reporting procedures and documents.  The plan shall also provide
    the format to be used to present the raw data and conclusions of the
    investigation.

    1.  Data Record

        The data record shall include the following:

        a.  Unique sample or field measurement code;

        b.  Sampling or field measurement location and sample- or measurement
            type;

        c.  Sampling or field measurement raw data;

        d.  Laboratory analysis ID number;

        e.  Property or component measured; and

        f.  Result of analysis (e.g., concentration).

    2.  Tabular Displays

        The following data shall be presented in tabular displays:

        a.  Unsorted (raw) data;

        b.  Results for each medium, or for each constituent monitored;

        c.  Data reduction for statistical analysis;

        d.  Sorting of data by potential stratification factors (e.g.,
            location, soil layer, topography); and

        e.  Summary data.

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                                                                           9902.3
                                   -17-

    3.  Graphical Displays

        The following data shall be presented in graphical formats (e.g.,
        bar graphs, line graphs, area or plan maps, isopleth plots,
        cress-sectional plots or transects, three dimensional graphs,
        etc.):

        a.  Display sampling location and sampling grid;

        b.  Indicate boundaries of sampling area, and areas where more data
            are required;

        c.  Displays levels of contamination at each sampling location;

        d.  Display geographical extent of contamination;

        e.  Display contamination levels, averages, and maxima;

        f.  Illustrate changes in concentration in relation to distance from
            the source, time, depth or other parameters; and

        g.  Indicate features affecting intramedia transport and show
            potential receptors.

D. . Health and Safety Plan

    The Owner/Operator [Respondent]  shall prepare a facility Health and
    Safety Plan.

    1.  Major elements of the Health and Safety Plan shall include:

        a.  Facility description includinq availability of resources
            such as roads, water supply, electricity and telephone
            service;

        b.  Describe the known hazards and evaluate the risks associated
            with the incident and with each activity conducted;

        c.  List key personnel and alternates responsible for site safety,
            responses operations, and for protection of public health;

        d.  Delineate work area;

        e.  Describe levels of protection to be worn by personnel in
            work area;

        f.  Establish procedures to control site access;

        g.  Describe decontamination procedures for personnel and equipment;

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                                                                            9902.3
                                   -18-

        h.  Establish site emergency procedures;

        i.  Address emergency medical care for injuries and toxicological
            problems;

        j.  Describe requirements for an environmental surveillance program;

        k.  Specify any routine and special training required for respbnders;  and

        1.  Establish procedures for protecting workers from weather-related
            problems.

    2.  The Facility Health and Safety Plan shall be consistent with:

        a.  NIOSH Occupational Safety and Health Guidance Manual for Hazardous
            Waste Site Activities (1985);

        b.  EPA Order 1440.1 - Respiratory Protection;

        c.  EPA Order 1440.3 - Health and Safety Requirements for Employees
            engaged in Field Activities;

        d.  Facility Contingency Plan;

        e.  EPA Standard Operating Safety Guide (1984);

        f.  OSHA regulations particularly in 29 CFR 1910 and 1926;

        g.  State and local regulations; and

        h.  Other EPA guidance as provided.

E.  Ccmmunity Relations Plan

    The Owner/Operator [Respondent]  shall prepare a plan, for the
    dissemination of information to the public regarding investigation
    activities and results.

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                                                                            9902.3
                                   -19-

TASK IV;  FACILITY INVESTIGATION
The Owner/Operator [Respondent] shall conduct those investigations
necessary to: characterize the facility (Environmental Setting); define
the source (Source Characterization); define the degree and extent of
contamination (Contamination Characterization); and identify actual or
potential receptors.

The investigations should result in data of adeguate technical guality to
support the development and evaluation of the corrective measure
alternative or alternatives during the Corrective Measures Study.

The site investigation activities shall follow the plans set forth in
Task III.  All sampling and analyses shall be conducted in accordance
with the Data Collection Quality Assurance Plan.  All sampling locations
shall be documented in a log and identified on a detailed site map.

A.  Environmental Setting

    The Owner/Operator [Respondent]  shall collect information to supplement
    and verify existing information on the environmental setting at the
    facility.  The Owner/Operator [Respondent]  shall characterize the
    following:

    1.   Hydrogeology

        The Owner/Operator [Respondent]  shall conduct a program to evaluate
        hydrogeologic conditions at the facility.   This program shall
        provide  the following information:

        a.   A description of the regional  and facility specific geologic
            and  hydrcgeolcgic characteristics affecting ground-water
            flow beneath the facility, including:

              i)   Regional and facility specific stratigraphy:  description
                  of  strata including strike and dip,  identification of
                  stratigraphic contacts;

             ii)   Structural geology: description of local and  regional
                  structural features (e.g., folding,  faulting, tilting,
                  jointing, etc.);

            iii)   Depositional history;

             iv)   Identification and  characterization of areas  and amounts
                  of  recharge and discharge.

              v)   Regional and facility specific ground-water flow pat-
                  terns;  and

             vi)   Characterize seasonal  variations  in the ground-water
                  flow regime.

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                                                                    9902.3

                           -20-

b.  An analysis of any topographic features that might influence
    the ground-water flow system.  (Note: Stereographic analysis
    of aerial photographs may aid in this analysis).

c.  Based on field data, test, and cores, a representative and
    accurate classification and description of the hydrogeologic
    units which may be part of the migration pathways at the -
    facility (i.e., the aquifers and any intervening saturated
    and unsaturated units), including:

       i)  Hydraulic conductivity and porosity (total and effective);

      ii)  Lithology, grain size, sorting, degree of cementation;

     iii)  An interpretation of hydraulic interconnections between
           saturated zones; and

      iv)  The attenuation capacity and mechanisms of the natural
           earth materials (e.g., ion exchange capacity, organic
           carbon content, mineral contect etc.).

d.  Based on field studies and cores, structural geology and
    hydrogeologic cross sections showing the extent (depth,
    thickness, lateral extent) of hydrogeologic units which may
    be part of the migration pathways identifying:

       i)  Sand and gravel deposits in unconsolidated deposits;

      ii)  Zones of fracturing or channeling in consolidated or
           unconsolidated deposits;

     iii)  Zones of higher permeability or low permeability that
           might direct and restrict the flow of contaminants;

      iv)  The uppermost aguifer: geologic formation, group of .
           formations, or part of a formation capable of yielding
           a significant amount of ground water to wells or
           springs; and

       v)  Water-bearing zones above the first confining layer
           that may serve as a pathway for contaminant migration
           including perched zones of saturation.

e.  Based on data obtained from ground-water monitoring wells
    and piezometers installed upgradient and downgradient of the
    potential contaminant source, a representative description of
    water level or fluid pressure monitoring including:

       i)  Water-level contour and/or potentiometric maps;

      ii)  Hydrologic cross sections showing vertical gradients;

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                                                                        9902.3

                               -21-

         iii)  The flow system, including the vertical and horizontal
               components of flow; and

          iv)  Any temporal changes in hydraulic gradients, for examole,
               due to tidal or seasonal influences.

    f.  A description of marinade influences that may affect the
        hydrogeolcgy of the site, identifying:

           1)  Active and inactive local water-supply and production wells
               with an approximate schedule of pumping; and

          ii)  Marmade hydraulic structures (pipelines, french drains,
               ditches, unlined ponds, septic tanks, NPDES outfalls,
               retent ion ajreas, etc.).

2.  Soils

    The Owner/Operator [Respondent]  shall conduct a program to characterize
    the soil and rock units above the water table in the vicinity of the
    contaminant release(s).  Such characterization shall include but not be
    limited to, the following information:

    a.  SCS soil classification;
    b.  Surface soil distribution;
    c.  Soil profile, including ASTM classification of soils;
    d. ' Transects of soil stratigraphy;
    e.  Hydraulic conductivity (saturated and unsaturated);
    f.  Relative permeability;
    g.  Bulk density;
    h.  Kirosity;
    i.  Soil sorptive capacity;
    j.  Cation exchange capacity (CEC);
    k.  Soil organic content;
    1.  Soil pH;
    m.  Particle size distribution;
    n.  Depth of water table;
    o.  Moisture content;
    p.  Effect of stratification on unsaturated flow;
    q.  Infiltration
    r.  Evapotranspiration;
    s.  Storage capacity;
    t.  Vertical flow rate; and
    u.  Mineral content.

3. Surface Water and Sediment

   The Owner/Operator [Respondent]  shall conduct a program to characterize
   the surface - water bodies in the vicinity of the facility.
   Such characterization shall include, but not be limited to, the
   following activities and information:

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                                                                    9902.3

                           -22-

a.  Description of the temporal and permanent surface-water bodies
    including:

       i)  For lakes and estuaries: location, elevation, surface
          area, inflow, outflow, depth, temperature stratification,
          and volume;

     ii)  For impoundments: location, elevation, surface
          area, depth, volume, freeboard, and purpose of impoundment;

    iii)  For streams, ditches, drains, swamps and channels: location,
          elevation, flow, velocity, depth, width, seasonal
          fluctuations, and flooding tendencies (i.e., 100 year
          event);

     iv)  Drainage patterns; and

      v)  Evapotranspiration.

b.  Description of the chemistry of the natural surface water and
    sediments.  This includes determining the pH, total dissolved
    solids, total suspended solids, biological oxygen demand,
    alkalinity, conductivity, dissolved oxygen profiles, nutrients
    (NH-j, NO-j'/NO^", PC>4  ), chemical oxygen demand, total organic
    carbon, specific contaminant concentrations, etc.

c.  Description of sediment characteristics including:

      i)  Deposition area;

     ii)  Thickness profile; and

    iii)  Physical and chemical parameters (e.g., grain size,
           density, organic carbon content, ion exchange
           capacity, pH, etc.)

Air

The Owner/Operator [Respondent] shall provide information characterizing
the climate in the vicinity of the facility.   Such information shall
include, but not be limited to:

a.  A description of the following parameters:

       i)  Annual and monthly rainfall averages;

      ii)  Monthly temperature averages and extremes;

     iii)  Wind speed and direction;

      iv)  Relative humidity/dew point;

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                                                                           9902.3
                                   -23-

               v)  Atmospheric pressure;

              vi)  Evaporation data;

             vii)  Development of inversions; and

            viii)  Climate extremes that have been known to occur in the vicinity
                   of the facility, including frequency of occurrence.

        b.  A description of topographic and manmade features which
            affect air flow and emission patterns, including:

              i)  Ridges, hills or mountain areas;

             ii)  Canyons or valleys;

            iii)  Surface water bodies (e.g. rivers, lakes, bays, etc.);

             iv)  Wind breaks and forests; and

              v)  Buildings.

B.  Source Characterization

    The Owner/Operator [Respondent]  shall collect analytic data to
    completely characterize the wastes and the.areas where wastes
    have been placed, collected or removed including: type; quantity;
    physical form; disposition (containment or nature of deposits); and'"
    facility characteristics affecting release (e.g., facility security,
    and engineered barriers).  This shall include quantification of
    the following specific characteristics, at each source area:

    1.  Unit/Disposal Area characteristics:

        a.  Location of unit/disposal area;
        b.  Type of unit/disposal area;
        c.  Design features;
        d.  Operating practices (past and present);
        e.  Period of operation;
        f.  Age of unit/disposal area;
        g.  General physical conditions; and
        h.  Method used to close the unit/disposal area.

    2.  Waste Characteristics:

        a.  Type of waste placed in the unit;

              i)  Hazardous classification (e.g., flammable,  reactive,
                  corrosive, oxidizing or reducing agent);

             ii)  Quantity; and

            iii)  Chemical composition.

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                                                                           9902.3
                                   -24-

        b.  Physical and chemical characteristics;

              i)  Physical form (solid, liquid, gas);
             ii)  Physical description (e.g., powder, oily sludge);
            iii)  Temperature;
             iv)  pH;
              v)  General chemical class (e.g., acid, base, solvent);
             vi)  Molecular weight;
            vii)  Density;
           viii)  Boiling point;
             ix)  Viscosity;
              x)  Solubility in water;
             xi)  Cchesiveness of the waste;
            xii)  Vapor pressure.
           xiii)  Flash point
                                                      ,        •
        c.  Migration and dispersal characteristics of the waste;

              i)  Sorption;

             ii)  Biodegradability, bioconcentration, biotransformation;

            iii)  Photodegradation rates;

             iv)  Hydrolysis rates; and

              v)  Chemical transformations.-

    The Owner/Operator [Respondent] shall document the procedures used in
    making the above determinations.

C.  Contamination Characterization

    The Owner/Operator [Respondent] shall collect analytical data on
    ground-water, soils, surface water, sediment, and subsurface gas
    contamination in the vicinity of the facility.  This data shall  be
    sufficient to define the extent, origin, direction, and rate of
    movement of contaminant plumes.  Data shall include time and location
    of sampling, media sampled, concentrations found, and conditions
    during sampling, and the identity of the individuals performing  the
    sampling and analysis.  The Owner/Operator [Respondent] shall address
    the following types of contamination at the facility:

    1.  Ground-water Contamination

        The Owner/Operator  [Respondent] shall conduct a Ground-water
        Investigation to characterize any plumes of contamination at the
        facility.  This investigation shall at a minimum provide the
        following information:

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                                                                        9902.3
                               -25-

    a.  A description of the horizontal and vertical extent of any
        immiscible or dissolved plume(s) originating from the facility;

    b.  The horizontal and vertical direction of contamination movement;

    c.  The velocity of contaminant movement;

    d.  The horizontal and vertical concentration profiles of Appendix
        VIII constituents in the plume(s);

    e.  An evaluation of factors influencing the plume movement; and

    f.  An extrapolation of future contaminant movement.

    The Owner/Operator [Respondent] shall document the procedures used in
    making the above determinations (e.g., well design, well construction,
    geophysics, modeling, etc.).

2.  Soil Contamination  •

    The Owner/Operator [Respondent] shall conduct an investigation
    to characterize the contamination of the soil and rock units
    above the water table in the vicinity of the contaminant
    release.  The investigation shall include the following
   • • information:

    a.  A description of the vertical and horizontal extent of
        contamination.

    b.  A description of contaminant and soil chemical properties
        within the contaminant source area and plume.  This includes
        contaminant solubility, speciation, adsorption, leachability,
        exchange capacity, biodegradability, hydrolysis, photolysis,
        oxidation and other factors that might affect contaminant
        migration and transformation.

    c.  Specific contaminant concentrations.

    d.  The velocity and direction of contaminant movement.

    e.  An extrapolation of future contaminant movement.

    The Owner/Operator [Respondent] shall document the procedures
    used in making the above determinations.

3.  Surface-Water and Sediment Contamination

    The Owner/Operator [Respondent] shall conduct a surface-water
    investigation to characterize contamination in surface-water
    bodies resulting from contaminant releases at the facility.

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                                                                       9902.3
                               -26-

    The investigation shall include, but not be limited to, the
    following information:

    a.  A description of the horizontal and vertical extent of any
        immisicible or dissolved plume(s) originating from the facility,
        and the extent of contamination in underlying sediments;  -

    b.  The horizontal and vertical direction of contaminant movement;

    c.  The contaminant velocity;

    d.  An evaluation of the physical, biological and chemical factors
        influencing contaminant movement;

    e.  An extrapolation of future contaminant movement; and

    f.  A description of the chemistry of the contaminated surface
        waters and sediments.  This includes determining the pH,
        total dissolved solids, specific contaminant concentrations,
        etc.;

    The Owner/Operator [Respondent] shall document the procedures
    used in making the above determinations.

    Air Contamination

    The Owner/Operator [Respondent] shall conduct an investigation
    to characterize the particulate and gaseous contaminants
    released into the atmosphere.  This investigation shall
    provide the following information:

    a.  A description of the horizontal and vertical direction
        and velocity of contaminant movement;

    b.  The rate and amount of the release; and

    c.  The chemical and physical composition of the contaminants(s)
        released, including horizontal and vertical concentration
        profiles.

    The Owner/Operator [Respondent] shall document the procedures
    used in making the above determinations.
5.  Subsurface Gas Contamination

    The Owner/Operator [Respondent]  shall conduct an investigation
    to characterize subsurface gases emitted from buried hazardous
    waste and hazardous constituents in the ground water.  This
    investigation shall include the following information:

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                                                                           9902.3
                                   -27-

        a.  A description of the horizontal and vertical extent of
            subsurface gases mitigation;

            b.  The chemical composition of the gases being emitted;

            c.  The rate, amount, and density of the gases being emitted;
                and
            d.  Horizontal and vertical concentration profiles of the
                subsurface gases emitted.

            The Owner/Operator [Respondent]  shall document the procedures
            used in making the above determinations.

D.  Potential Receptors

    The Owner/Operator [Respondent]  shall collect data describing the
    human populations and environmental systems that are susceptible to
    contaminant exposure frcm the facility.   Chemical analysis of biological
    samples may be needed.  Data on observable effects in ecosystems may
    also be obtained.  The following characteristics shall be identified:

    1.  Local uses and possible future uses of ground water:

        a.  Type of use (e.g., drinking water source: municipal or
            residential, agricultural, domestic/non-potable, and
            industrial); and

        b.  Location of groundwater users including wells and discharge
            areas.
    2.  Local uses and possible future uses of surface waters draining
        the facility:

        a.  Domestic and municipal (e.g.  potable and lawn/gardening
            watering);
        b.  Recreational (e.g.  swimming,  fishing);
        c.  Agricultural;
        d.  Industrial; and
        e.  Environmental (e.g. fish and  wildlife propagation).

    3.  Human use of or access  to the facility and  adjacent lands,
        including but not limited to:
        a.  Recreation;
        b.  Hunting;
        c.  Residential;
        d.  Conmercial;
        e.  Zoning; and
        f.  Relationship between population locations and prevailing
            wind direction.

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                                                                       9902.3
                               -28-

4.  A description of the biota in surface water bodies on,
    adjacent to, or affected by the facility.

5.  A description of the ecology overlyinq and adjacent to
    the facility.

6.  A demographic profile of the people who use or have access
    to the facility and adjacent land, including,  but not limited to:
    age; sex; and sensitive subgroups.

7.  A description of any endangered or threatened  species near
    the facility.

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                                                                           9902.3


                                   -29-
TASK V:  INVESTIGATION ANALYSIS
The Owner/Operator  [Respondent] shall prepare an analysis and summary of
all facility investigations and their results.  The objective of this
task shall be to ensure that the investigation data are sufficient in
quality (e.g., quality assurance procedures have been followed) and quantity
to describe the nature and extent of contamination, potential threat to
human health and/or the environment, and to support the Corrective Measures
Study.

A.  Data Analysis

    The Owner/Operator [Respondent] shall analyze all facility investigation
    data outlined in Task TV and prepare a report on the type and extent
    of contamination at the facility including sources and  migration pathways.
    The report shall describe the extent of contamination (qualitative/quan-
    titative)  in relation to background levels indicative for the area.


B.  Protection Standards [where applicable]

    1.  Ground-water Protection Standards

        For regulated units the Owner/Operator [Respondent]  shall provide
        information to support the Agency's selection/development of
        Ground-water Protection Standards for all of the Appendix VIII
        constituents found in the ground-water during the Facility Investi-
        gation (Task W).

        a.  The Groundwater Protection standards shall consist of:

               i)   for any constituents listed in Table 1 of 40 CFR 264.94,
                   the respective value given in that table  (MCL) if the
                   background level of the constituent is below the given
                   in Table 1; or

              ii)   the background level of that constituent  in the ground-
                   water;  or

             iii)   a U.S.  EPA approved Alternate Concentration Limit (ACL).

        b.  Information to support the Agency's subsequent selection of
            Alternate Concentration Limits (ACL's)  shall be  developed by
            the Owner/Operator [Respondent] in accordance with U.S.  EPA
            guidance.  For any proposed ACL's the Owner/Operator [Respondent]
            shall  include  a justification based upon the criteria set
            forth in 40 CFR 264.94(b).

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                                                                       9902.3

                               -30-

    c.  Within [insert number]  days of receipt of any proposed ACL's.
        The U.S.  EPA shall notify the Owner/Operator [Respondent]
        in writing of approval, disapproval or nodifications,  the
        U.S. EPA.shall specify in writing the reason(s)  for any
        disapproval or nodification.

    d.  Within [insert number]  days of receipt of the U.S.  EPA's  -
        notification or disapproval of any proposed  ACL,  the
        Owner/Operator [Respondent]  shall amend and  submit  revisions
        to the U.S. EPA.

2.  Other Relevant Protection Standards

    The Owner/Operator [Respondent]  shall identify all relevant and
    applicable standards for the protection of human health, and the
    environment (e.g. National Mbient Air Quality Standards,
    Federally-approved state water quality standards, etc.).

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                                                                            9902.3
                                   -31-

TASK VI;  LABORATORY AND BENCH-SCALE STUDIES

The Owner/Operator  [Respondent] shall conduct laboratory and/or bench
scale studies to determine the applicability of a corrective measure
technology or technologies to facility conditions.  The Owner/Operator
[Respondent] shall analyze the technologies, based on literature review,
vendor contracts, and past experience to determine the testing requirements.

The Owner/Operator  [Respondent] shall develop a testing plan identifying
the types(s) and goal(s) of the study(ies), the level of effort needed,
and the procedures to be used for data management and interpretation.

Upon completion of the testing, the Owner/Operator [Respondent] shall
evaluate the testing results to assess the technology or technologies
with respect to the site-specific guestions identified in the test plan.

The Owner/Operator  [Respondent] shall prepare a report summarizing the
testing program and its results, both positive and negative.

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                                                                             9902.3


                                    -32-

"TASK vii;  REPORTS

 A.  Preliminary and Workplan

     The Owner/Operator [Respondent] shall submit to the EPA reports or. Tasks
     I and II when it submits the RCRA Facility Investigation VJorkpIan.(Task III).

 B.  Progress

     The Owner/Operator [Respondent] shall at a minimum provide the EPA with
     signed, [monthly, bimonthly] progress reports containing:

     1.   A description and estimate of the percentage of the RFI completed;

     2.   Summaries of all  findings;

     3.   Summaries of all changes made in the RFI during the reporting
          period;

     4.   Summaries of all contacts with representative of the local community,
          public interest groups or State government during the reporting
          period;

     5.   Summaries of all problems or potential problems encountered during
          the reporting period;

     6.   Actions being taken to rectify problems;

     7.   Changes in personnel during the reporting period;

     8.   Projected work for the next reporting period; and

     9.   Copies of daily reports, inspection reports, laboratory/ monitoring
          data,  etc.

 C.  Draft and Final

     Upon EPA approval, the Owner/Operator [Respondent] shall prepare a RCRA
     Facility Investigation Report to present Tasks IV-V.  The RCRA Facility
     investigation Report shall be developed in draft form for U.S. EPA review.
     The RCRA Facility Investigation Report shall be developed in final format
     incorporating comments received on the Draft RCRA Facility Investigation
     Report.   Task VI shall be submitted as a separate report when the Final
     RCRA Facility Investigation Report is submitted.

     [number]  copies of all reports, including the Task I report, Task II report,
     Task III workplan, Task VI report and both the Draft and Final RCRA Facility
     Investigation Reports (Task IV-V)  shall be provided by the Owner/Operator
     [Respondent]  to U.S.  EPA.

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                                  -33-
                                                                            9902.3
 [THE FOLLOWING FACILITY SUBMISSION. SUMMARY MAY BE PIACFD IN THE BODY
 OF THE ORDER OR PEFMIT AND REMOVED FROM THE SCOPE OF WORK.  NOT ALL OF
 THE ITEMS LISTED BELOW MAY RE REOUIRED AT EACH FACILITY.]

Facility Submission Summary

A summary-of the information reporting requirements contained in the
RCRA Facility Investigation Scope of Work is presented below:
Facility Submission
  Due Date
Description of Current Situation
     (Task I)

Pre-Investigation Evaluation of Corrective
 Measure Technologies
     (Task II)

RFI Workplan
     (Task III)

Draft RFI Report
     (Tasks IV and V)

Final RFI Report
     (Tasks IV and V)
Laboratory and Bench-Scale Studies
     (Task VI)

Progress Reports on Tasks I through VI
t DATE ]


t DATE ]



t DATE ]
t NUMBER ]  days after
RFI Worknlan Approval

t NUMBER ]  days after
EPA comment on Draft
RFI Report

Concurrent with Final
RFI Report

[ MONTHLY, BI-MONTHLY ]

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                                                                            9902.3
                                   -34-

               SCOPE OF WORK FOR A CORRECTIVE MEASURE STUDY
                                    AT
                          [SPECIFY FACILITY NAME]
PURPOSE
The purpose of this Corrective Measure Study (CMS) is to develop and evaluate
the corrective action alternative or alternatives and to reccmmend the
corrective measure or measures to be taken at  [specify facility name].
The Owner/Operator [Respondent] will furnish the personnel, materials,
and services necessary to prepare the corrective measure study, except
as otherwise specified.

[Note: This scope of work is intended to foster timely, concise submissions
by Owner/Operators.  To achieve this goal, it  is important when using the
model scope of work to consider facility specific conditions.  This scope
should be modified as necessary to require only that information necessary
to complete the Corrective Measure Study.]
SCOPE

The Corrective Measure Study consists of four tasks:

Task VIII:  Identification and Development of the Corrective Measure
            Alternative or Alternatives

            A.  Description of Current Situation
            B.  Establishment of Corrective Action Objectives
            -C.  Screening of Corrective Measures Technologies
            D.  Identification of the Corrective Measure Alternative or
                Alternatives

Task IX:    Evaluation of -the Corrective Measure Alternative or Alternatives

            A.  Technical/Environmental/Humah Health/Institutional
            B.  Cost Estimate

 Task X:    Justification and Recommendation of the Corrective Measure or
            Measures

            A.  Technical  '
            B.  Environmental
            C.  Human Health

Task XI:    Reports

            A.  Progress
            B.  Draft
            C.  Final

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                                                                            9902.3
                                   -35-

TASK VIII;  IDENTIFICATION AND DEVELOPMENT OF THE CORRECTIVE ACTION
            ALTERNATIVE OR ALTERNATIVES

Based on the results of the RCRA Facility Investigation and consideration of
the identified Preliminary Corrective Measure Technologies (Task II),
the Owner/Operator [Respondent]  shall identify, screen and develop the
alternative or alternatives for removal, containment, treatment and/or
other remediation of the contamination based on the objectives established
for the corrective action.

A.  Description of Current Situation

     The Owner/Operator -[Respondent]  shall submit an update to the
     information describing the current situation at the facility and
     the known nature and extent of the contamination as documented by
     the RCRA Facility Investigation Report.  The Owner/Operator [Respondent]
     shall provide an update to information presented in Task I of the
     RFI to the Agency regarding previous response activities and any
     interim measures which have or are being implemented at the facility.
     The Owner/Operator [Respondent]  shall also make a facility-specific
     statement of the purpose for the response, based on the results of
     the RCRA Facility Investigation.  The statement of purpose should
     identify the actual or potential exposure pathways that should be
     addressed by corrective measures.

 B.  Establishment of.Corrective Action Objectives

     The Owner/Operator [Respondent], in conjunction with the U.S.  EPA,
     shall establish site specific objectives for the corrective action.
     These objectives shall be based on public health and environmental
     criteria, information gathered during the RCRA Facility Investigation,
     EPA guidance, and the requirements of any applicable Federal statutes.
     At a minimum, all corrective actions concerning ground water releases
     from regulated units must be consistent with, and as stringent as,
     those required under 40 CFR 264.100.

 C.  Screening of Corrective Measure Technologies

     The Owner/Operator-.[Respondent]  shall review the results of the RCRA
     Facility Investigation and  reassess the technologies specified in
     Task II and to identify additional technologies which are applicable
     at the facility.   The Owner/Operator [Respondent]  shall screen the
     preliminary corrective measure technologies identified in Task II
     of the RCRA Facility investigation and any supplemental technologies
     to eliminate those that may prove infeasible to implement, that
     rely on technologies unlikely to perform satisfactorily or reliably,
     or that do not achieve the  corrective measure objective within a
     reasonable time period.  This screening process focuses on eliminating
     those technologies which have severe limitations for a given set of
     waste and site-specific conditions.  The screening step may also
     eliminate technologies based on  inherent technology limitations.

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                                  -36-                                    9902.3

    Site, waste, and technology characteristics which are used to screen
    inapplicable technologies are described in more detail below:

    1.  Site Characteristics

        Site data should be reviewed to identify conditions that may
        limit or promote the use of certain technologies.  Technologies
        whose use is clearly precluded by site characteristics should be
        eliminated from further consideration;

    2.  Waste Characteristics

        Identification of waste characteristics that limit the effectiveness
        or feasibility of technologies is an important part of the screening
        process.  Technologies clearly limited by these waste characteristics
        should be eliminated from consideration.  Waste characteristics
        particularly affect the feasibility of in-situ methods, direct
        treatment methods, and land disposal (on/off-site); and

    3.  Technology Limitat ions

        During the screening process, the level of technology development,
        performance record, and inherent construction, operation, and
        maintenance problems should be identified for each technology
        considered.  Technologies that are unreliable, perform poorly,
        or are not fully demonstrated may be eliminated in the screening
        process.  For example, certain treatment methods have been developed
        to a point where they can be implemented in the field without
        extensive technology transfer or development.

D.  Identification of the Corrective Measure Alternative or Alternatives

    The Owner/Operator [Respondent]  shall develop the Corrective measure
    alternative or alternatives based on the corrective action objectives
    and analysis of Preliminary Corrective Measure Technologies, as
    presented in Task II of the RCRA Facility investigation and as
    supplemented following the preparation of the RFI Report.  The
    Owner/Operator [Respondent]  shall rely on engineering practice to
    determine which of the previously identified technologies appear
    most suitable for the site.  Technologies can be combined to form
    the overall corrective action alternative or alternatives.  The
    alternative or alternatives developed should represent a workable
    number of option(s) that each appear to adequately address all site
    problems and corrective action objectives.  Each alternative may
    consist of an individual technology or a combination of technologies.
    The Owner/Operator [Respondent]  shall document the reasons for
    excluding technologies, identified in Task II, as supplemented in
    the development of the alternative or alternatives.

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                                                                            9902.3
                                   -37-

TASK IX:  EVALUATION OF THE CORRECTIVE MEASURE ALTERNATIVE OR ALTERNATIVES

The Owner/Operator  [Respondent] shall describe each corrective measure
alternative that passes through the Initial Screening in Task vill and
evaluate each corrective measure alternative and it's components.  The
evaluation shall be based on technical, environmental, human health and
institutional concerns.  The Owner/Operator [Respondent]  shall also
develop cost estimates of each corrective measure.

A.  Technical/Environmental/Human Health/Institutional

    The [Owner/ Operator]  Respondent shall provide a description of each
    corrective measure alternative which includes but is not limited to the
    following: preliminary process flow sheets; preliminary sizing and type
    of construction for buildings and structures; and rough quantities of
    utilities required.  The Owner/Operator [Respondent]  shall evaluate each
    alternative in the four following areas:

    1.   Technical;

        The Owner/Operator [Respondent]  shall evaluate each corrective
        measure alternative based on performance, reliability,
        implementability and safety.

        a.   The Owner/Operator [Respondent]  shall evaluate performance based
            on the effectiveness an useful life of the corrective measure:

            i)  Effectiveness shall be evaluated in terms of the ability
                to perform intended functions, such as containment, diversion,
                removal, destruction, or treatment.  The  effectiveness of
                each corrective measure shall  be determined either through
                design specifications or by performance evaluation.  Any
                specific waste or site characteristics which could potentially
                impede effectiveness shall be  considered.  The  evaluation
                should also consider the effectiveness of combinations of
                technologies;  and

           ii)  Useful life is defined as the  length of time the level of
                effectiveness can be maintained.   Most corrective measure
                technologies,  with the exception of destruction, deteriorate
                with time.   Often,  deterioration can be slowed  through proper
                system operation and maintenance, but the technology eventually
                may require replacement.   Each corrective measure shall
                be evaluated in terms of the projected service  lives of its
                component  technologies.   Resource availability  in the future
                life of the technology,  as well as appropriateness of the
                technologies,  must be considered in estimating  the useful
                life of the project.

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                                                                    9902.3
                           -38-

b.  The Owner/Operator  [Respondent] shall provide information on
    the reliability of each corrective measure including their
    operation and maintenance requirements and their demonstrated
    reliability:

    i)  Operation and maintenance requirements include the frequency
        and complexity of necessary operation and maintenance.
        Technologies requiring frequent or complex operation and
        maintenance activities should be regarded as less reliable
        than technologies requiring little or straightforward
        operation and maintenance.  The availability of labor
        and materials to meet these requirements shall also be
        considered; and

   ii)  Demonstrated and expected reliability is a way of measuring
        the risk and effect of failure.  The Owner/Operator
        [Respondent] should evaluate whether the technologies
        have been used effectively under analogous conditions;
        whether the combination of technologies have been used
        together effectively; whether failure of any one technology
        has an immediate impact on receptors; and whether the
        corrective measure has the flexibility to deal with
        uncontrollable changes at the site.

c.  The Owner/Operator  [Respondent] shall describe the implement-
    ability of each corrective measure including the relative
    ease of installation (constructability) and the time required
    to achieve a given level of response:

    i)  Constructability is determined by conditions both internal
        and external to the facility conditions and include such
        items as location of underground utilities, depth to water
        table, heterogeneity of subsurface materials, and location of
        the facility (i.e., remote location vs. a congested urban
        area).  The Owner/Operator [Respondent] shall evaluate
        what measures can be taken to facilitate construction
        under these conditions.  External factors which affect
        implementation include the need for special permits or
        agreements, equipment availability, and the location of
        suitable off-site treatment or disposal facilities; and

   ii)  Time has two components that shall be addressed: the time
        it takes to implement a corrective measure and the time
        it takes to actually see beneficial results.  Beneficial
        results are defined as the reduction of contaminants to
        some acceptable, pre-established level.

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                                                                            9902.3
                                  -39-

        d.  The Owner/Operator  [Respondent] shall evaluate each corrective
            measure alternative with regard to safety.  This evaluation
            shall include threats to the safety of nearby communities
            and environments as well as those to workers during implement-
            ation.  Factors to consider are fire, explosion, and exposure
            to hazardous substances.

    2.  Environmental;

        The Owner/Operator  [Respondent] shall perform an Environmental
        Assessment for each alternative.  The Environmental Assessment
        shall focus on the facility conditions and pathways of
        contamination actually addressed by each alternative.  The
        Environmental Assessment for each alternative will include, at a
        minimum, an evaluation of: the short- and long-term beneficial
        and adverse effects of the response alternative; any adverse
        effects on environmentally sensitive areas; and an analysis of
        measures to mitigate adverse effects.

    3.  Human Health; and

        The Owner/Operator [Respondent] shall assess each alternative
        in terms of the extent of which it mitigates short- and long-term
        potential exposure to any residual contamination and protects human
        health both during and after implementation the corrective measure.
        The assessment will describe the levels and characterizations of •
        contaminants on-site, potential exposure routes, and potentially
        affected population.  Each alternative will be evaluated to
        determine the level of exposure to contaminants and the reduction
        over time.  For management of mitigation measures, the relative
        reduction of impact will be determined by comparing residual
        levels of each alternative with existing criteria, standards, or
        guidelines acceptable to EPA.

    4.  Institutional.

        The Owner/Operator [Respondent]  shall assess relevant institutional
        needs for each alternative.   Specifically, the effects of Federal,
        state and local environmental and public health standards,
        regulations, guidance, advisories, ordinances, or cotmunity
        relations on the design, operation, and timing of each alternative.

B.  Cost Estimate

    The Owner/Operator -[Respondent]  shall develop an estimate of the
    cost of each corrective measure  alternative (and for each phase or
    segment of the alternative).  The cost estimate shall include both
    capital and operation and maintenance costs.

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                                                                       9902.3
                               -40-

1.  Capital costs consist of direct (construction) and indirect
    (nonconstruction and overhead) costs.

     a.  Direct capital costs include:

           i)  Construction costs: Costs of materials, labor
               (including fringe benefits and worker's compensation),
               and equipment required to install the corrective
               measure.

          ii)  Equipment costs:  Costs of treatment, containment,
               disposal and/or service equipment necessary to implement
               the action; these materials remain until the corrective
               action is complete;

         iii)  Land and site-development costs:  Expenses associated with
               purchase of land and development of existing property; and

          iv)  Buildings and services costs:  Costs of process and
               nonprocess buildings, utility connections, purchased
               services, and disposal costs.

    b.   Indirect capital costs include:

           i)  Engineering expenses:  Costs of administration, design,
               construction supervision, drafting, and testing of
               corrective measure alternatives;'

          ii)  Legal fees and license or permit costs:  Administrative
               and technical costs necessary to obtain licenses and
               permits for installation and operation;

         iii)  Startup and shakedown costs:  Costs incurred during
               corrective measure startup; and

          iv)  Contingency allowances:  Funds to cover costs resulting
               from unforeseen circumstances, such as adverse weather
               conditions, strikes, and inadequate facility
               character izat ion.

2.  Operation and maintenance costs are post-construction costs
    necessary to ensure continued effectiveness of a corrective
    measure.  The Owner/Operator [Respondent]  shall consider the
    following operation and maintenance cost components:

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                                                                    9902.3
                           -41-

a.  Operating labor costs:  wages, salaries, training, overhead,
    and fringe benefits associated with the labor needed for
    post-construction operations;

b.  Maintenance materials and labor costs:  Costs for labor,
    parts, and other resources required for routine maintenance
    of facilities and equipment;

c.  Auxiliary materials and energy:  Costs of such items as chemicals
    and electricity for treatment plant operations, water and sewer
    service, and fuel;

d.  Purchased services:  Sampling costs, laboratory fees, and
    professional fees for which the need can be predicted;

e.  Disposal and treatment costs:  Costs of transporting, treating,
    and disposing of waste materials, such as treatment
    plant residues, generated during operations;

f.  Administrative costs:  Costs associated with administration
    of corrective measure operation and maintenance not included
    under other categories;

g.  Insurance, taxes, and licensing costs:  Costs of such items
    as liability and sudden accidental insurance; real estate
    taxes on purchased land or rights-of-way; licensing fees for
    certain technologies; and permit renewal and reporting costs;

h.  Maintenance reserve and contingency funds:  Annual payments
    into escrow funds to cover (1) costs of anticipated replacement
    or rebuilding of equipment'and (2) any large unanticipated
    operation and maintenance costs; and

i.  Other costs:  Items that do not fit any of the above categories.

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                                                                            9902.3

                                   -42-

TASK X: JUSTIFICATION AND RECOMMENDATION OF THE CORRECTIVE
        MEASURE OR MEASURES
The Owner/Operator  [Respondent] shall justify and recommend a corrective
measure alternative using technical, human health, and environmental
criteria.  This recommendation shall include summary tables which allow
the alternative or alternatives to be understood easily.  Tradeoffs  -
among health risks, environmental effects, and other pertinent factors
shall be highlighted. The U.S. EPA will select the corrective measure
alternative or 'alternatives to be implemented based on the results of
Tasks IX and X.  At a minimum, the following criteria will be used
to justify the final corrective measure or measures.

A.  Technical

    1.  Performance - corrective measure or measures which are most
        effective at performing their intended functions and maintaining
        the performance over extended periods of time will be given
        preference;

    2.  Reliability - corrective measure or measures which do not reguire
        frequent or complex operation and maintenance activities and
        that have proven effective under waste and facility conditions
        similar to those anticipated will be given preference;

    3.  Implementability - corrective measure or measures which can be
        constructed and operating to reduce levels of contamination to
        attain or exceed applicable standards in the shortest period of
        time will be preferred; and

    4.  Safety - corrective measure or measures which pose the least
        threat to the safety of nearby residents and environments as
        well as workers during implementation will be preferred.

B.  Human Health

    The corrective measure or measures must comply with existing U.S. EPA
    criteria, standards, or guidelines for the protection of human health.
    Corrective measures which provide the minimum level of exposure to
    contaminants and the maximum reduction in exposure with time are
    preferred.

C.  Environmental

    The corrective measure or measures posing the least adverse impact
    (or greatest improvement)  over the shortest period "of time on the
    environment will be favored.

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                                                                            9902.3

                                   -43-

TASK XI:  REPORTS

The Owner/Operator  [Respondent] shall prepare a Corrective Measure Study
Report presenting the results of Task VIII through X and recommending a
corrective measure alternative,  [number] copies of the preliminary
report shall be provided by the Owner/Operator [Respondent].

A.  Progress

    The Owner/Operator  [Respondent] shall at a minimum provide the EPA
    with signed, [monthly, bimonthly] progress reports containing:

    1.  A description and estimate of the percentage of the CMS completed;

    2.  Summaries of all findings;

    3.  Summaries of all changes made in the CMS during the reporting
        period;

    4.  Summaries of all contacts with representative of the local
        community, public interest groups or State government during the
        reporting period;

    5.  Summaries of all problems or potential problems encountered during
        the reporting period;

    6.  Actions being taken to rectify problems;

    7.  Changes in personnel during reporting period;

    8.  Projected work for the next reporting period; and

    9.  Copies of daily reports, inspection reports, laboratory/ monitoring
        data, etc.

B.  Draft

    The Report shall at a minimum include:

    1.  A description of the facility;

        a.  Site topographic map & preliminary layouts.

    2.  A summary of the corrective measure or measures;

        a.  Description of the corrective measure or measures and rationale
            for selection;

        b.  Performance expectations;

        c.  Preliminary design criteria and rationale;

        d.  General operation and maintenance reguirements; and

        e.  long-term monitoring requirements.

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                                                                           9902.3
                                  -44-

    3.  A summary of the RCRA Facility Investigation and impact on the
        selected corrective measure or measures;

        a.  Field studies (ground-water, surface water, soil, air); and

        b.  Laboratory studies (bench scale, pick scale).

    4.  Design and Implementation Precautions;

        a.  Special technical problems;

        b.  Additional engineering data required;

        c.  Permits and regulatory requirements;

        d.  Access, easements, right-of-way;

        e.  Health and safety requirements; and

        f.  Community relations activities.

    5.  Cost Estimates and Schedules;

        a.  Capital cost estimate;

        b.  Operation and maintenance cost estimate; and

        c.  Project schedule (design, construction, operation).

    [number]  copies of the draft shall be provided by the Owner/Operator
    [Respondent] to U.S. EPA.
C.  Final
    The Owner/Operator [Respondent]  shall finalize the Corrective Measure
    Study Report incorporating ccmments received frcm EPA on the Draft Corrective
    Measure Study Report.

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                                                                           9902.3
                                  -45-

 [THE FOLLOWING FACILITY SUBMISSION SUMMARY MAY BE PLACED IN THE BODY
 OF THE ORDER OR PERMIT MD REMOVED FROM THE SCOPE OF WORK.  NOT ALL OF
 THE ITEMS LISTED BELOW MAY BE REQUIRED AT EACH FACILITY.]

Facility Submission Summary

A summary of the information reporting requirements contained in the -
Corrective Measure Study Scope of Work is presented below:
Facility Submission
  Due Date
Draft CMS Report
     (Tasks VIII, IX, and X)
Final CMS Report
     (Tasks VIII, IX, and X)
Progress Reports on Tasks VIII, IX, and X
[ NUMBER ]  days
after submittal of
the Final RFI

[ NUMBER ]  days
after Public and
EPA comment on the
Draft CMS

[ MONTHLY,  BI-MONTHLY ]

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                                                                           9902.3
                                   -46-

         SCOPE OF WORK FOR THE CORRECTIVE MEASURE IMPLEMENTATION
                                    AT
                          [SPECIFY FACILITY NAME]
PURPOSE
The purpose of this Corrective Measure Implementation (CMI) program is to
design, construct, operate, maintain, and monitor the performance of the
corrective measure or measures selected to protect human health and the
environment.  The Owner/Operator  [Respondent] will furnish all personnel,
materials and services necessary for the implementation of the corrective
measure or measures.

[Note: This scope of work is intended to foster timely, concise submissions
by Owner/Operators.  To achieve this goal, it is important when using the
model scope of work to consider facility specific conditions.  This scope
should be modified as necessary to require only that information necessary
to complete the Corrective Measure Implementation.]
SCOPE

The Corrective Measure Implementation program consists of four tasks;

   Task XII:  Corrective Measure Implementation Program Plan

              A.  Program Management Plan
              B.  Connunity Relations Plan

   Task XIII: Corrective Measure Design
              A.  Design Plans and Specifications
              B.  Operation and Maintenance Plan
              C.  Cost Estimate
              D.  Project Schedule
              E.  Construction Quality Assurance Objectives
              F.  Health and Safety Plan
              G.  Design Phases

   Task XIV:  Corrective Measure Construction

              A.  Responsibility and Authority
              B.  Construction Quality Assurance Personnel Qualifications
              C.  Inspection Activities
              D.  Sampling Requirements
              E.  Documentation

   Task XV:  Reports

             A.  Progress
             B.  Draft
             C.  Final

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                                                                            9902.3

                                   -47-

TASK XII:  CORRECTIVE MEASURE IMPLEMENTATION PROGRAM PLAN

The Owner/Operator  [Respondent]  shall prepare a Corrective Measure
Implementation Program Plan.  This program will include the development and
implementation of several plans, which require concurrent preparation.
It may be necessary to revise plans as the work is performed to focus
efforts on a particular problem.  The Program Plan includes the following:.

A.  Program Management Plan

    The Owner/Operator [Respondent] shall prepare a Program Management Plan
    which will document the overall management strategy for performing the
    design, construction, operation, maintenance and monitoring of corrective
    measure(s).  The plan shall document the responsibility and authority of
    all organizations 'and key personnel involved with the implementation.
    The Program Management Plan will also include a description of
    qualifications of key personnel directing the Corrective Measure
    Implementation Program, including contractor personnel.

B.  Community Relations Plan

    The Owner/Operator [Respondent] shall revise the Community Relations
    Plan to include any changes in the level of concern of information needs
    to the community during design and construction activities.

    1.  Specific activities which must be conducted during the design stage
        are the following:

        a.  Revise the facility Community Relations Plan to reflect knowledge
            of citizen concerns and involvement at this stage of the process;
            and

        b.  Prepare and distribute a public notice and an updated fact sheet at
            the completion of engineering design.

    2.  Specific activities to be conducted during the construction stage
        could be the following:   Depending on citizen interest at a
        facility at this point in the corrective action process, community
        relations activities could range from group meetings to fact
        sheets on the technical status.

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                                                                           9902.3
                                   -48-

TASK XIII;  CORRECTIVE MEASURE DESIGN

The Owner/Operator [Respondent] shall prepare final construction plans
and specifications to implement the corrective measure(s) at the facility
as defined in the Corrective Measure Study.

A.  Design Plans and Specifications

    The Owner/Operator [Respondent] shall develop clear and comprehensive
    design plans and specifications which include but are not limited to
    the following:

    1.  Discussion of the design strategy and the design basis,..Including;

        a.  Compliance with all applicable or relevant environmental
            and public health standards; and

        b.  Minimization of environmental and public impacts.

    2.  Discussion of the technical factors of importance including:

        a.  Use of currently accepted environmental control measures and
            technology;

        b.  The constructability of the design; and

        c.  Use of currently acceptable construction practices and techniques.

    3.  Description of assumptions made and detailed justification of
        these assumptions;

    4.  Discussion of the possible sources of error and references to
        possible operation and maintenance problems;

    5.  Detailed drawings of the proposed design including;

        a.  Qualitative'flow sheets; and

        b.  Quantitative flow sheets.

    6.  Tables listing equipment and specifications;

    7.  Tables giving material and energy balances;

    8.  Appendices including;

        a.  Sample calculations (one example presented and explained
            clearly for significant or unique design calculations);

        b.  Derivation of equations essential to understanding the
            report; and

        c.  Results of laboratory or field tests.

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                                                                           9902.3
                                   -49-

B.  Operation and Maintenance Plan

    The Owner/Operator [Respondent]  shall prepare an Operation and
    Maintenance Plan to cover both implementation and long term maintenance
    of the corrective measure.  The plan shall be composed of the following
    elements:

    1.  Description of normal operation and maintenance (O&M);

        a.  Description of tasks for operation;

        b.  Description of tasks for maintenance;

        c.  Description of prescribed treatment or operation conditions; and

        d.  Schedule showing frequency of each O&M task.

    2.  Description of potential operating problems;

        a.  Description and analysis of potential operation problems;

        b.  Sources of information regarding problems; and

        c.  Common and/or anticipated remedies.

    3.  Description of routine monitoring and laboratory testing;

        a.  Description of monitoring tasks;

        b.  Description of required laboratory tests and their interpretation;

        c.  Required QA/QC; and

        d.  Schedule of monitoring frequency and date, if appropriate,  when
            monitoring may cease.

    4.  Description of alternate O&M;

        a.  Should systems fail, alternate procedures to prevent undue  hazard;
            and

        b.  Analysis of vulnerability and additional resource requirements
            should a failure occur.

    5.  Safety plan;

        a.  Description of precautions, of necessary equipment,  etc., for
            site personnel; and

        b.  Safety tasks required in event of systems failure.

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                                                                           9902.3
                                   -50-

    6.  Description of equipment; and

      .  a.  Equipment identification;

        b.  Installation of monitoring components;

        c.  Maintenance of site equipment; and

        d.  Replacement schedule for equipment and installed components.

    7.  Records and reporting mechanisms required.

        a.  Daily operating logs;

        b.  Laboratory records;

        c.  Records for operating costs;

        d.  Mechanism for reporting emergencies;

        e.  Personnel and maintenance records; and

        f.  Monthly/annual reports to State agencies.

        An initial Draft Operation and Maintenance Plan shall be submitted
        simultaneously with the Prefinal Design Document, submission and the
        Final Operation and Maintenance Plan with the Final Design Documents.

C.  Cost Estimate

    The Owner/Operator [Respondent] shall develop cost estimates for the
    purpose of assuring that the facility has the financial resources
    necessary to construct and implement the corrective measure.  The
    cost estimate developed in the Corrective Measure Study shall be
    refined to reflect the more detailed/accurate design plans and
    specifications being developed.  The cost estimate shall include
    both capital and operation and maintenance costs.  An Initial Cost
    Estimate shall be submitted simultaneously with the Prefinal Design
    submission and the Final Cost Estimate with the Final Design Document.


D.  Project Schedule

    The Owner/Operator [Respondent] shall develop a Project Schedule for
    construction and implementation of the corrective measure or measures
    which identifies timing for initiation and completion of all critical
    path tasks.  Owner/Operator [Respondent]  shall specifically identify
    dates for completion of the project and major interim milestones.
   . An Initial Project Schedule shall be submitted simultaneously with
    the Prefinal Design Document submission and the Final Project Schedule
    with the Final Design Document.

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                                   -51-                                     9902.3

E.  Construction Quality Assurance Objectives


    The Owner/Operator  [Respondent] shall identify and document the
    objectives and framework for the development of a construction quality
    assurance program including, but not limited to the following:
    responsibility and authority; personnel qualifications; inspection
    activities; sampling requirements; and documentation.

F.  Health and Safety Plan

    The Owner/Operator  [Respondent] shall modify the Health Safety Plan
    developed for the RCRA Facility Investigation to address the activities
    to be performed at the facility to implement the corrective measure(s).

G.  Design Phases

    The design of the corrective measure(s) should include the phases
    outlined below.

    1.  Preliminary design

        The Owner/Operator [Respondent]  shall submit the Preliminary
        design when the design effort is approximately 30% complete.  At
        this stage the Owner/Operator [Respondent]  shall have field verified
        the existing conditions of the facility.  The preliminary design
        shall reflect a level of effort such that the technical requirements
        of the project have been addressed and outlined -so that they may
        be reviewed to determine if the final design will provide an
        operable and usable corrective measure.  Supporting data and
        documentation shall be provided with the design documents defining
        the functional aspects of the program.  The preliminary construction
        drawings by the Owner/Operator [Respondent]  shall reflect organization
        and clarity.  The scope of the technical specifications shall be
        outlined in a manner reflecting the final specifications.  The
        Owner/Operator [Respondent]  shall include with the preliminary
        submission design calculations reflecting the same percentage of
        completion as the designs they support.

    2.  Intermediate design

        Complex project design may necessitate review of the design
        documents between the preliminary and the prefinal/final design.
        At the discretion of  the Agency, a design review may be required
        at 60% completion of  the project.  The intermediate design
        submittal should include the same elements  as the prefinal design.

    3.  Correlating plans and specifications

        General correlation between drawings and technical specifications,
        is a basic requirement of any set of working construction plans
        and specifications.  Before submitting the  project specifications,
        the Owner/Operator [Respondent]  shall:

        a.   Coordinate and cross-check the specifications and drawings; and

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                               _52-                                    9902.3

    b.  Complete the proofing of the edited specifications and required
        cross-checking of all drawings and specifications.

    These activities shall be completed prior to the 95% prefinal
    submittal to the Agency.
4.  Equipment start-up and operator training

    The Owner/Operator [Respondent] shall prepare, and include in
    the technical specifications governing treatment systems, contractor
    requirements for providing: appropriate service visits by experienced
    personnel to supervise the installation, adjustment, startup and
    operation of the treatment systems, and training covering appropriate
    operational procedures once the startup has been successfully
    accomplished.

5.  Additional studies

    Corrective Measure Implementation may require additional studies to
    supplement the available technical data.  At the direction of the
    Agency for any such studies required, the Owner/Operator [Respondent]
    shall furnish all services, including field work as required,
    materials, supplies,  plant, labor, equipment, investigations,
    studies and superintendence.  Sufficient sampling, testing and
    analysis shall be performed to optimize the required treatment
    and/or disposal operations and systems.  There shall be an initial
    meeting of all principal personnel involved in the development
    of the program.  The purpose will be to discuss objectives,
    resources, communication channels, role of personnel involved
    and orientation of the site, etc.  The interim report shall
    present the results of the testing with the recommended treatment
    or disposal system (including options).  A review conference
    shall be scheduled after the interim report has been reviewed by
    all interested parties.  The final report of the testing shall
    include all data taken during the testing and a summary of the
    results of the studies.

6.  Prefinal and final design

    The Owner/Operator [Respondent] shall submit the prefinal/Final
    design documents in two parts.  The first submission shall be at
    95% completion of design (i.e., prefinal).  After approval of
    the prefinal submission, the Owner/Operator [Respondent]  shall
    execute the required  revisions and submit the final documents
    100% complete with reproducible drawings and specifications.

    The prefinal design submittal and shall consist of the Design
    Plans and Specifications, Operation and Maintenance Plan, Capital
    and Operating and Maintenance Cost Estimate, Project Schedule,
    Quality Assurance Plan and Specifications for the Health and
    Safety Plan.

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                                                                    9902.3
                           -53-

The final design submittal consist of the Final Design Plans and
Specifications (100% complete), the Owner/Operator's [Respondent's]
Final Construction Cost Estimate, the Final Operation
and Maintenance Plan, Final Quality Assurance Plan, Final Project
Schedule and Final Health and Safety Plan specifications.  The
quality of the design documents should be such that the Owner/Operator
[Respondent] would be able to include them in a bid package and
invite contractors to submit bids for the construction project.

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                                                                           9902.3
                                   -54-

TASK XIV:  CORRECTIVE MEASURE CONSTRUCTION

Following EPA approval of the final design, the Owner/Operator [Respondent]
shall develop and implement a construction quality assurance (CQA) program
to ensure, with a reasonable degree of certainty, that a completed corrective
measure(s) meets or exceeds all design criteria, plans and specifications.
The CQA plan is a facilityspecific document which must be submitted to
the Agency for approval prior to the start of construction.  At a minimum,
the CQA plan should include the elements, which are summarized below.
Upon EPA approval of the CQA plan the Owner/Operator [Resondent]  shall
construct and implement the corrective measures in accordance with the
approved design, schedule and the CQA plan.  The Owner/Operator [Respondent]
shall also implement the elements of the approved Operation and Maintenance
plan.


A.  Responsibility and Authority

    The responsibility and authority of all organizations (i.e. technical
    consultants, construction firms, etc.) and key personnel involved
    in the construction of the corrective measure shall be described
    fully in the CQA plan.  The Owner/Operator [Respondent]  must identify
    a CQA officer and the necessary supporting inspection staff.

B.  Construction Quality Assurance Personnel Qualifications

    The qualifications of the CQA officer and supporting inspection
    personnel shall be presented in the CQA plan to demonstrate that
    they possess the training and experience necessay to fulfill their
    identified responsibilities.

C.  Inspection Activities

    The observations and tests that will be used to monitor the construction
    and/or installation of the components of the corrective measure(s)
    shall be summarized in the CQA plan.  The plan shall include the
    scope and frequency of each type of inspection.  Inspections shall
    verify compliance with all environmental requirements and include,
    but not be limited to air quality and emissions monitoring records,
    waste disposal records (e.g., RCRA transportation manifests),  etc.
    The inspection should also ensure compliance with all health and
    safety procedures.  In addition to oversight inspections, the Owner/
    Operator [Respondent]  shall conduct the following activities:

    1.  Preconstruction inspection and meeting

        The Owner/Operator [Respondent] shall conduct a preconstruction
        inspection and meeting to:

        a.  Review methods for documenting and reporting inspection data;

        b.  Review methods for distributing and storing documents  and reports;

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                                                                           9902.3

                                   -55-

        c.  Review work area security and safety protocol;

        d.  Discuss any appropriate modifications of the construction quality
            assurance plan to ensure that site-specific considerations are
            addressed; and

        e.  Conduct a site walk-around to verify that the design criteria,
            plans, and specifications are understood and to review material
            and equipment storage locations.

    The preconstruction inspection and meeting shall be documented
    by a designated person and minutes should be transmitted to all
    parties.

2.  Prefinal inspection

    Upon preliminary project completion Owner/Operator [Respondent]
    shall notify EPA for the purposes of conducting on prefinal inspection.
    The prefinal inspection will consist of a walk-through inspection of
    the entire project site.  The inspection is to determine whether the
    project is complete and consistent with the contract documents and
    the EPA approved corrective measure.  Any outstanding  construction
    items discovered during the inspection will be identified and noted.
    Additionally, treatment equipment will be operationally tested by the
    Owner/Operator [Respondent].  The Owner/Operator [Respondent] will
    certify that the equipment has performed to meet the purpose and
    intent of the specifications.  Retesting will be completed where
    deficiencies are revealed.  The prefinal inspection -report should
    outline the outstanding construction items, actions required to
    resolve items, completion date for these items, and date for final
    inspection.

3.  Final inspection

    Upon completion of any outstanding construction items, the Owner/
    Operator [Respondent]  shall notify EPA for the purposes of conducting
    a final inspection.  The final inspection will consist of a walk-through
    inspection of the project site.   The prefinal inspection report will
    be used as a checklist with the final inspection focusing on the
    outstanding construction items identified in the prefinal inspection.
    Confirmation shall be made that outstanding items have been resolved.


D.  Sampling Requirements

    The sampling activities, sample size, sample locations, frequency of
    testing, acceptance and rejection criteria, and plans for correcting
    problems as addressed in the project specifications should be presented
    in the CQA plan.

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                                                                           9902.3


                                   -56-
E.  Documentation
    Reporting requirements for CQA activities shall be described  in detail
    the CQA plan.  This should include such items as daily summary reports,
    inspection data sheets, problem identification and corrective measures
    reports, design acceptance reports, and final documentation.   Provisions
    for the final storage of all records also should be presented in the  CQA
    plan.

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                                                                            9902.3
TASK XV:  REPORTS
The Owner/Operator  [Respondent] shall prepare plans, specifications, and
reports as set forth  in Tasks XII throuagh Task XV  to document the design,
construction, operation, maintenance, and monitoring of the corrective
measure.  The documentation shall include, but not  be limited to the
following:

A.  Progress

    The Owner/Operator  [Respondent] shall at a minimum provide the EPA
    with signed,  [monthly, bimonthly] progress reports during the design
    and construction phases and [semi-annual] progress reports for
    operation and maintenance activities containing:

    1.  An description and estimate of the percentage of the CMI completed;

    2.  Summaries of all findings;

    3.  Summaries of all changes made in the CMI during the reporting
        period;

    4.  Summaries of all contacts with representative of the local community,
        public interest groups or State government during the reporting period;

    5.  Summaries of all problems or potential problems encountered during
        .the reporting, period;

    6.  Actions being ..taken to rectify problems;

    7.  Changes in personnel during the reporting period;

    8.  Projected work for the next reporting period; and

    9.  Copies of daily reports, inspection reports, laboratory/ monitoring
        data, etc.

B.  Draft

    1.  The Owner/Operator [Respondent]  shall submit a draft Corrective
        Measure implementation Program Plan as outlined in Task XII;

    2.  The Owner/Operator [Respondent]  shall submit draft Construction
        Plans and Specifications,  Design Reports,  Cost Estimates, Schedules,
        Operation and Maintenance  plans,  and Study Reports as outlined in
        Task XIII;

    3.  The Owner/Operator [Respondent]  shall submit a draft Construction
        Quality Assurance Program Plan and Documentation as outlined  in
        Task XIV, and

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                                                                           9902.3
                                   -58-

    4.  At the "conpletion" of the construction of the project, the Owner-
        /Operator  [Respondent] shall submit a Corrective Measure Implementation
        Report to the Agency.  The Report shall document that the -project
        is consistent with the design specifications, and that the corrective
        measure is performing adequately.  The Report shall include, but
        not be limited to the following elements:

        a.  Synopsis of the corrective measure and certification of the design
            and construction;

        b.  Explanation of any modifications to the plans and why these
            were necessary for the project;

        c.  Listing of the criteria, established before the corrective
            measure was initiated, for judging the functioning of the
            corrective measure and also explaining any modification to
            these criteria;                                     r

        d.  Results of facility monitoring, indicating that the corrective
            measure will meet or exceed the performance criteria; and

        e.  Explanation of the operation and maintenance (including
            monitoring) to be undertaken at the facility.

        This report, should include all of the daily inspection summary
        reports, inspection summary reports, inspection data sheets,
        problem identification and corrective measure reports, block
        evaluation reports, photographic reporting data sheets, design
        engineers' acceptance reports, deviations fron design and material
        specifications (with justifying documentation) and as-built
        drawings.
C.  Final
    The Owner/Operator [Respondent]  shall finalize the Corrective Measure
    Implementation Program Plan, Construction Plans and Specifications,
    Design Reports, Cost Estimates,  Project Schedule, Operation and
    Maintenance Plan, Study Reports, Construction Quality Assurance Program
    Plan/Documentation and the Corrective Measure Implementation Report
    incorporating comments received  on draft submissions.

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                                                                            9902.3
                                   -59-

 [THE  FALLOWING FACILITY  SUBMISSION SUMMARY MAY BE PLACED IN THE BODY
 OF THE ORDER OR PERMIT  AND REMOVED FROM THE SCOPE OF WORK.  NOT ALL OF
 THE  ITEMS LISTED BELOW  MAY BE REQUIRED AT EACH FACILITY].

 Submission Summary

 A summary of  the information reporting requirements contained in the
 Corrective Measure  Implementation Scope of Work is present below:
Facility Submission
Draft Program Plans
     (Task XII)

Final Program Plans
     (Task XII)
Design Phases
     (Task XIII A)
       - Preliminary Design (30% completion)

       - Intermediate Design (60% completion)

       - Prefinal Design (95% completion).

       - Final Design (100% completion)

      (Task XIII B through G)
       - Draft Submittals
       - Final Submittals
Additional Studies: Interim Report
     (Task XIII F)

Additional Studies: Final Report
     (Task XIII F)

Draft Construction Quality Assurance Plan
     (Task XIV)

Final Construction Quality Assurance Plan
     (Task XIV)
Construction of Corrective Measure(s)
Prefinal Inspection Report
     (Task XIV)
  Due Date
 [ DATE 1


 [ NUMBER ] days after
EPA comment on Draft
Program Plans
 [ NUMBER ] days after
submittal of Final Program Plan
 [ NUMBER ] days after
submittal of Final Program Plan
 [ NUMBER ] days after
submittal of Final Program Plan
 [ NUMBER ] days after
submittal of Prefinal Design

Concurrent with Prefinal Design
Concurrent with Final Design
 [ DATE ESTABLISHED PRIOR
  TO FINAL DESIGN        ]

 [ NUMBER ]  days after EPA
 comment on Interim Report

Prior to construction
[ NUMBER ]  days after EPA
comment on Draft Construction
Quality Assurance Plan

As approved in Final Design
[ NUMBER ]  days after
Prefinal Inspection

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                                                                           9902.3
                                   -60-
Facility Submission
Draft CMI Report
     (Task XV)

Completion of Construction
Final CMI Report
     (Task XV)

Progress Reports for Tasks XII through XIV

Progress Reports During Operation
and Maintenance
  Due Date
Upon completion of
construction phase

As approved by EPA in the
Corrective Measure Design

[ NUMBER ] days after EPA
comment on Draft CMI Report

[ MONTHLY, BI-MONTHLY ]

[ SEMI-ANNUAL]

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                                                                            9902.3
                                   -61-

                          ANNOTATED BIBLIOGRAPHY
                                 for the
                          CORRECTIVE ACTION PLAN**


Guidance on Remedial Investigations Under CERCIA; May 1985.

  -  Provides detailed guidance on the information that should be
     collected in performing a CERCLA Remedial Investigation.  This
     document should be consulted in performing the investigation
     portion of the RFI/CMS since most of the RCRA Facility Investigation
     data needs are identical to these in CERCLA.

Guidance on Feasibility Studies Under CERCLA; April 1985.

  -  Provides a framework for developing, screeningt and selecting a
     remedial action under CERCLA.  Most of the techniques described
     are appropriate for the developing, screening, and selection of
     the RCRA Corrective Measures.  However, the management and policy
     objectives presented in the document (i.e. fulfilling the requirements
     of the CERCLA National Contingency Plan) are not appropriate to RCRA
     and should be emitted from the Corrective Measure decisionmaking
     framework.

Chemical, Physical and Biological Properties of Compounds Present at
Hazardous Waste Sites; EPA/OWPE; September 1985.

  -  Provides detailed technical 'information of the physical and
     toxicolcgical properties of a wide range of chemicals.  Such
     information should be included in the RCRA Facility Investigation
     and should be used in developing Corrective Measures.

Endangerment Assessment Handbook;  EPA/OWPE; August 1985.

  -  Provides guidance on developing a CERCLA (or RCRA 7003) Endangerment
     Assessment.  The information presented might be useful in assessing
     health and environmental effects in the RFI/CMS.

Methods for Chemical Analysis of Water and Waste;  EPA-600/4-79-020;
March 1979.

  -  Provides test procedures for monitoring waste discharge water
     supplies, and ambient waters.

Toxicology Handbook - Principles Related to Hazardous Waste Site Investigations;
EPA/OWPE; August 1985.

  -  Discusses toxicological principles.  Intended as an aid for non-toxicolcgists.
**NOTE:  This is not a complete listing of the Agency guidance which
         may be relevant to the corrective action process.  A number of
         documents are presently under development and have not been included.

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                                                                           9902.3
                                   -62-
Remedial Action at Waste Disposal Sites (Revised);  EPA/625/6-85/006; 1985.

  -  Provides basic reference material on the design and implementation
     of remedial action.  Althouqh the document is geared towards the CERCLA
     RI/FS process, most of the material presented is directly applicable
     to the RCRA Corrective Action Plan.

Test Methods for Evaluating Solid Waste, Physical/Chemical Methods;
SW-846; July 1982.

  -  Provides procedures that should be used to determine whether a waste
     is a. hazardous waste as defined by 40 CFR Part 261.

Superfund Remedial Design and Remedial Action Guidance;  February 1985.

  -  Provides guidance on developing remedial design and remedial actions
     at Superfund sites.  Although procedurally focused on satisfying the
     NCP, the document provides useful managerial information for implementing
     RCRA Corrective Measures.

Guidance on Remedial Actions for Contaminated Ground Water at Superfund
Sites; Draft; May 1986.

  -  Provides technical discussions of CERCLA remedial alternative
     screening and case studies which are largely applicable to the
     RFI/CMS.  The guidance is intended to be consistent with EPA's
     Ground Water Protection Strategy and with RCRA.

Construction Quality Assurance for Hazardous Waste Land Disposal Facilities;
EPA/530-SW-85-031; July 1986.

  -  Public guidance on construction guality assurance for hazardous
     waste landfills, surface impoundmenets, and wastepiles.

RCRA Ground-Water Monitoring Technical Enforcement Guidance Document;
Final; EPA/OWPE; September 1986.

  -  Provides guidance on data collection and well spacing and design for
     detection and assessment monitoring of Interim Status facilities.
     This guidance should be consulted in both the RCRA Facility Investi-
     gation and Corrective Measure stages of the RFI/CMS.

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Frfday
December 19, 1986
Part  IV
Department of  Labor
Occupational Safety and Health
Administration
29 CFR Part 1910
Hazardous Waste Operations and
Emergency Response; Interim Final Rule

-------
45654     Federal Register / Vol. 51, No.  244 / Friday, December 19,  1986 / Rules  and  Regulations
DEPARTMENT OF LABOR

Occupational Safety and Health
Administration

29 CFR Part 1910

[Docket No. S-760]

Hazardous Waste Operations and
Emergency Response

AGENCY: Occupational Safety and
Health Administration; Labor.
ACTION: Interim final rule.

SUMMARY: This interim final rule
amends the Occupational Safety and
Health Administration (OSHA)
standards for hazardous materials in
Subpart H of 29 CFR Part 1910 by adding
a new § 1910.120 containing employee
protection requirements for workers
engaged in hazardous waste operations
including emergency response to
hazardous subsfance incidents.
  Coverage includes employees
involved in responses covered by the
Comprehensive Environmental
Response, Compensation and Liability
Act of 1980 as amended (CERCLA or
"Superfund" Act) [Pub. L 96-510, 42
U.S.C. 9601 et seq, 94 Stat 2767] such as
clean-up of hazardous waste sites,
certain hazardous waste operations
conducted under the Resource
Conservation and Recovery Act of 1978
as amended (RCRA) [Pub. L 94-560, 42
U.S.C. 6901 et seq. 90 Stat 2795], and
emergency response to incidents
involving the handling, processing and
transportation of hazardous substances.
  The issuance of this interim final rule
is mandated by section 128(e) of the
"Superfund Amendments and
Reauthorization Act of 1988" (SARA)
[Pub. L 99-199). The interim final rule
will regulate employee safety and health
at hazardous waste operations and
during emergency response to
hazardous substance incidents until a
final standard, also mandated by section
126 of SARA, is issued by OSHA and
becomes effective. The final OSHA
standard also mandated by section 126
of SARA is the subject of a Notice of
Proposed Rulemaking which will be
published shortly.
DATES: Interim rule effective December
19,1986: various start-up dates have
been established in paragraph (p) of the
standard. The incorporation by
reference of certain publications listed
in the regulations is approved by the
Director of the Federal Register as of
December 19.1986.
FOR FURTHER INFORMATION CONTACT:
Mr. fames F. Foster, U.S. Department of
Labor,  Occupational Safety and Health
Administration, Division of Consumer
Affairs, Room S--1220, 200 Constitution
Avenue, NW., Washington, DC 20210,
202-523-8151.
  This interim final rule was prepared
by Michael B. Moore and Chappell D.
Pierce, Directorate of Safety Standards,
Office of Fire Protection Engineering and
Systems Safety Standards, (202) 523-
7225.
SUPPLEMENTARY INFORMATION:

I. Background
  On October 17,1986, the President
signed into law the "Superfund
Amendments and Reauthorization Act
of 1986" (SARA) [Pub. L 99-499). As
part of SARA the Secretary of Labor
("Secretary") is directed to issue an
interim final rule within 60 days after
the date of enactment, which i» to  •
provide no less protection for workers
engaged in covered operations than the
protections contained in the
Environmental Protection Agency's
(EPA), "Health and Safety Requirements
for Employees Engaged in Field
Activities" manual (EPA Order 1440.2)
dated 1981 and the existing OSHA
standards under Subpart C of 29 CFR
Part 1926. SARA also directs the
Secretary to issue, within one year, a
final standard under section 6(b) of the -
Occupational Safety and Health Act of
1970 for the health and safety of
employees engaged in hazardous waste
operations. SARA further indicates that
certain specific areas of employee
protection (i.e., medical surveillance.
personal protective equipment training,
and others) contained in section  126(b)
are relevant to protect employees
engaged in hazardous waste operations.
  The interim final rule  issued today
becomes effective immediately and will
remain in effect until one year after
issuance of the final OSHA standard,
which will be proposed  shortly.
Congress has clearly directed in section
126(e) that these interim final rules
become effective upon issuance and the
standard provides this. Implementation
is to commence immediately, however,
various start-up dates are set forth in
paragraph (p) of the standard which
recognize  that full implementation
cannot be completed immediately for
some provisions. In addition OSHA will,
of course, recognize greater feasibility
constraints in the first three months of
the standard and take those constraints
into account in enforcement.
  This interim final rule has been
adopted from the language of the EPA
manual entitled "Health and Safety
Requirements for Employees Engaged in
Field Activities" (1981) and the language
of OSHA's safety and health standards
in Subpart C of 29 CFR Part 1926. The
interim final rule also contains language
taken from various documents issued
either jointly or solely by the EPA,
OSHA. the U.S. Coast Guard, and the
National Institute for Occupational
Safety and Health (N1OSH). OSHA has
specifically used the joint OSHA/EPA/
USCG/NIOSH document entitled.
"Occupational Safety and Health
Guidance Manual for Hazardous Waste
Site Activities" (Preamble Reference 6),
as an outline in preparing this interim
rule. This four agency manual has been
developed as a result of the
collaborative efforts of professionals
representing the four agencies. These
professionals, who are knowledgeable
in hazardous waste operations, worked
with over 100 experts and organizations
in the development of the criteria
contained in this manual. The manual
was  published in October 1985 and is
public information. The manual is a
guidance document for managers
responsible for occupational safety and
health programs at inactive hazardous
waste sites. The manual is intended for
use by government officials at all levels
and contractors involved with
hazardous waste operations. The
manual  provides general guidance and
is intended to be used as a preliminary
basis for developing a specific health
and safety program for hazardous waste
operations. Further the major subject
areas listed in SARA section I26(b) are
nearly identical to these major chapters
listed in the manual.
  Congress indicated that reasonably
comprehensive protection was intended
for employees at hazardous waste
operations, as discussed below, covering
more than the minimum requirements
specified in the EPA manual (EPA Order
1440.2) and Subpart C of 29 CFR Part
1926. In light of the short period of time
Congress directed for issuance of this
standard, OSHA's utilization of
recognized sources of guidance which
have been created by experts in the area
and utilizing the resources of relevant
agencies is appropriate.
  In view of the brief period given for
the issuance of this document, it may be
necessary to issue minor corrections in
the near future.

II. Summary and Explanation of the
Standard

Paragraph fa)—Scope. Application, and
Definitions

  In paragraph (a)(l), Scope, OSHA has
defined the scope  of the standard to
include:
  (i) Hazardous substance response
operations under the Comprehensive
Environmental Response,
Compensation, and Liability Act  of 1980

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           Federal Register / Vol.  51. No.  244 / Friday, December  19. 1986 / Rules  and Regulations     45655
as amended (CERCLA) including initial
investigations at CERCLA sites before
the presence or absence of hazardous
substances has been ascertained:
  (ii) Major corrective actions taken in
clean-up operations under the Resource
Conservation and Recovery Act of 1976
as amended (RCRA)r
  (iii) Operations involving hazardous
waste storage,  disposal and treatment
facilities regulated under 40 CFR Parts
264 and 285 pursuant to RCRA except
for small quantity generators  and those
employers with less than 90 days
accumulation of hazardous wastes as
defined in 40 CFR 262.34;
  (iv) Hazardous waste operations sites
that have been designated for clean-up
by state or local governmental
authorities; and
  (v) Emergency response operations for
releases of or substantial threats of
releases of hazardous substances and
post-emergency response operations to
such releases.
  Thus this standard will cover
hazardous waste clean-up operations at
CERCLA sites, RCRA sites, emergency
response sites and those sites
designated by State or local
governments. It will also cover other
hazardous waste operations, such as
storage, disposal or treatment of
hazardous waste at RCRA facilities.
  OSHA believes that Congress
intended the interim rule to have a
broad scope and application.  This is
indicated by the legislative intent as
reflected in the language of SARA. The
language of section 126(e) explicitly
states that the Secretary "shall issue
interim final regulations under this
section..." (emphasis supplied). "Under
this section" refers  to the entire section
128 of SARA. And. as previously noted.
section 126(a) mandates safety and
health standards for the protection of
employees engaged in hazardous waste
operations. Thus. OSHA believes
Congress intended the interim final rule
to mirror section 128 and provide
protective provisions  to employees
engaged in hazardous waste operations.
  The argument is buttressed further by
the fact that section 128(e) states that
the interim final rule shall provide no
less (emphasis added) protection for
workers employed by contractors and
emergency response workers  than the
protection contained in the
Environmental Protection Agency
Manual "Health and Safety
Requirements for Employees Engaged  in
Field Activities" and exiting standards
under Subpart  C of 29 CFR Part 1926.
The two sources cited in section 126(e)
are not a limitation on the scope of the
interim rule. Rather, this language
establishes the minimum amount of
protective provisions, with the broad
parameters of employee protection
delineated by the remainder of section
126.
  This interpretation is reinforced
because SARA is a freestanding
statutory provision and not an
amendment to CERCLA. The clear
Congressional intent then is to provide
protection to employees whenever they
deal with hazardous wastes.
  The hazards an employee faces at a
RCRA. CERCLA, or emergency response
site are the same hazards. The risk of
exposure is to the same types of
hazardous substances. The scope of the
regulation fulfills the Congressional
mandate: to effectively provide for
employee health and safety at
hazardous waste operations and
emergency response incidents.
  As indicated in the application
provisions, different provisions of the
standard apply to clean-up operations.-
regular hazardous waste operations and
emergency response to take into account
relevant differences.
  Further the term "hazardous waste
operation" is used in section 126(a) of
SARA. "Hazardous waste" is also a
term used in RCRA and there is no
indication from SARA or its legislative
history that RCRA facilities were to be
excluded from coverage by this interim
rule. This is a further reason why OSHA
has included RCRA hazardous waste
operations under the coverage of this
interim final rule. However, small
quantity generators: employers who
have less than 90 days of hazardous
waste accumulation: and solid waste
disposal operations which do not
involve hazardous waste are not
covered by this interim final rule. Also.
employees at hazardous waste sites
who will not be exposed or do not have
the potential to be exposed to hazardous
substances are not covered by this
interim final rule.
  Emergency response employees who
respond or will respond to incidents
involving hazardous substances are
covered by this interim final rule. Public
employees of states that have
agreements with OSHA under section 18
of the OSH Act must issue regulations at
least as effective as these to protect
public employees.
  Municipal or other sanitary landfills
that handle domestic wastes are not
covered. Similar waste paper or scrap
metal operations are generally not
covered because of the type of wastes
they handle. But they could be covered
if they have clean-ups for or handle
hazardous wastes meeting the scope
provisions of the standard.
  Operations with no exposure to on-
site hazardous substances, i.e.. road
building for site access, construction of
on-site or the setting up of temporary
facilities in the clean zone or the closure
of a RCRA site involving the building of
a clay cap over hazard wastes, are
considered to be construction activities
covered by the standards in 29 CFR Part
1926.
  The scope and application provisions
carry out the intent of Congress and are
consistent with good occupational
safety and health policy. Employees
performing clean-up operations under
CERCLA. RCRA (corrective actions) and
post emergency response, generally
those employees likely to have the
highest exposures to hazardous
substances over a longer period, are
covered by virtually all the provisions of
the rule. Employees exposed to
hazardous wastes in routine RCRA
hazardous waste operations, who are
regularly exposed to hazardous wastes
but in a more controlled environment
are covered  by the more limited
requirements of paragraph  (o) of the
interim final rule. Emergency response
workers, exposed  usually for short
periods to often unknown but possibly
high levels of hazardous substances,
have specific provisions directed
towards this situation.
  In paragraph (a)(2), Application.
OSHA designates the requirements
which apply to the specific work
activities covered  by this interim final
rule. The requirements set forth In
paragraph (1) of this section specifically
apply to the  work  conducted by
emergency response personnel, such  as
fire fighters,  emergency medical system
(EMS) employees and police, when they
respond to hazardous substance
incidents.
  The requirements set forth in
paragraph (o) of this section specifically
apply to the  hazardous waste operations
at RCRA sites which are involved in
disposal, treatment, storage and
handling of hazardous waste. The
exclusion of small quantity operators
and less than 90-day accumulators
excludes from coverage by the interim
rule operators such as dry cleaners and
gas stations  which come within the
purview of RCRA  but are not hazardous
waste operators in the normal meaning
of the term. The approximately 4,000
RCRA sites where reasonably large
quantities of hazardous wastes are
regularly handled, treated and stored
are covered  by the rule. This reflects the
legislative intent, meets the normal
meaning of hazardous waste operations
and covers the type of safety and health
hazards that this regulation is designed
to control.

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45656     Federal Register / Vol. 51. No.  244 / Friday, December 19, 1988 / Rules and Regulations
  Most of the requirements of the
interim rote apply to d*an-ap activities
of hazardous mbrtanMi or hazardous
wastes at CERCLA attts, corrective
actions at RCRA flitaev and clean-up
operations of hazanbm substances at
emergency incident* after emergency
response personnel have concluded
their duties.
  The employer must also comply with
the standards in 23 CFR Parts 1910 and
1926. as well a» with the requirements
specifically covered in this interim rule.
If there is a conflict or overlap, the more
protective provisions are to apply. Since
this interim rule does not cover all of the
hazards present at hazardous waste
operations, other OSHA standards in
Parts 1910 and 1926 apply also. Other
OSHA standards cover many other
hazards, and OSHA wants to make
clear that the other standards continue
to apply. Also, hazardous waste
operators who are not within the scope
of this standard are covered by the Parts
1910 and 1928 standards.
  In paragraph (a J(3), Definitions,
OSHA has defined various terms used
in this raJemaking. The definitions for
hazardous substances and hazardous
wastes have been taken from the U.S
Environmental Protection Agency (EPA)
and U.S. Department of Transportation
(DOT) regulation*. This has been done
to assure conriatency and compatibility
between this interim rale and the rules
and regulations of the EPA and DOT.
The remaining definitions have been
taken for the most part from SARA, the
four agency manual (Reference 8) or
existing OSHA standards.
  The term "established permissible
exposure limit" is defined to give
direction as to the appropriate degree of
protection needed to be achieved by
personal protective equipment and other
similar purposes.
Paragraph (b)—General Requirements
  In paragraph (b), General
requirements, OSHA sets forth for the
most part a summary of requirements
which are specified in detail in later
paragraphs. The preamble discussion for
later paragraphs sets forth the reasons
for the various provisions. Many of
these requirements are part of the
minimum requirements which Congress
directed OSHA to issue in section 126(e)
of SARA. The EPA manual (EPA Order
1440.2) referenced in section 128(e}
requires extensive training and medical
surveillance programs. Subpart C of 29
CFR Part 1928. also referenced, requires,
in addition, accident prevention
programs (51920.20(b)), use of
appropriate personal protective
equipment (§ 1928.28), sanitation and
illumination requirements (§§ 1926.26
and 1926.27), provisions on safe
handling of toxic substances (§ 1926.21
(b)(5}J, precautions in confined spaces
(§ 1926.21(b)(6)) and similar provisions.
Congress also directed additional
provisions for the proposed regulation,
which are considered relevant for the
interim regulation. These include
engineering controls, maximum
exposure limits and monitoring,
handling requirements, decontamination
procedures and emergency response.
Based on this comprehensive statutory
direction OSHA believes that the intent
of Congress is to have employers
Implement a safety and health program
that will address the recognized serious
hazards to employees involved in
hazardous waste operations. Therefore,
OSHA has incorporated the more
important elements of section 126(b),
along with the mandatory provisions of
section 126(e) of SARA, into this rule.
Each general requirement in paragraph
(b) calls for employer action and directs
the employer to the specific paragraph
of this rule that contains the duties in
greater detail.
  OSHA believes that these
requirements are necessary to assure
adequate employee protection to the
known hazards faced by employees. The
language used in these requirements has
been adapted from the various
documents listed in the Reference
section of this preamble.
  Three of the subparagraphs in
paragraph (b) do not reference other
paragraphs in the regulation. Paragraph
(b)(l) requires the employer to develop a
safety and health program for hazardous
waste operations. Such programs are
part of the requirements mandated by
SARA for the interim rule. Thus, Subpart
C of 29 CFR Part 1926 requires such a
program in § 1928.20(b) and EPA Order
1440.2 requires training in "safety plan
development" (pg. 5). OSHA's
experience also establishes that a safety
and health program is necessary to
protect employees so that hazards are
assessed and control programs are
systematically laid out. Prior OSHA
section 6(b) health standards require a
compliance plan to set forth a health
program to protect employees from the
hazard.
  Paragraph (b)(14) requires compliance
with Subpart P of 29 CFR  Part 1926
which covers excavation. OSHA
considers that those provisions already
apply, but they are singled out because
they are particularly important to
monitor since much excavation activity
occurs on hazardous waste sites.
  Paragraph (b)(15) requires employers
to notify contractors and subcontractors
of the hazards  identified by the
employer at hazardous waste
operations. Sections 12fi(bJ(2) and (e) of
SARA indicate Congress's specific
interest in protecting employees of
contractors and in involving contractors
in the safe operation of hazardous wa»u
sites. This provision assists the
contractor to become aware of the risks
so that the contractor's employees may
be better protected.

Paragraph (d—Site Characterization
and Analysis

  For an effective safety and health
program, which Congress dearly intends
for employees, the employer needs to
know the hazards faced by employees in
order to develop and implement
effective control measures. Site
characterization provides the
information needed to identify site
hazards and- to select employee
protection methods. The more accurate,
detailed,  and comprehensive the
information available about  a site, the
more the protective measures can be
tailored to the actual hazards that the
employees may encounter. Congress
clearly intended that such a  requirement
be included. Subpart C of 29 CFR Part
1926 referenced in section 126(e) of
SARA requires "frequent and regular
inspections of the job site" (29 CFR
1928.20(b)(2J). Also section 126(b)(I) of
SARA provides for site analysis. Alao
item #9 of the EPA manual (EPA Order
1440.2) addresses this practice.
  Site characterization generally
proceeds in three phases:
  1. Prior to site entry, gather
information away from the site, conduct
reconnaissance from the site perimeter
and conduct offsite characterization.
  2. Conduct onsite surveys. During this
phase, restrict site  entry only to
reconnaissance personnel.
  3. Once the site has been determined
safe for commencement of other
activities, continue monitoring to
provide an updated source of
information about site conditions.
  It is important to recognize that site
characterization is a continuous process.
At each phase of site characterization,
information shall be obtained and
evaluated to define the potential
hazards of the site. This assessment
shall be used to develop a safety and
health plan for the  next phase of work.
In addition to the formal information
gathering that takes place during the
phases of site characterization
described here, all  site personnel should
be constantly alert for new information
about site conditions. Other
requirements of this section  have been
adopted from reference 6.

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           Federal Register  /  Vol. 51.  No. 244  / Friday, December 19. 1986  /  Rules and Regulations
                                                                      45657
Paragraph (dj—Site Control.
  As part of the employers' site safety
and health plan, this paragraph'requires
the employer to consider site control to
minimize potential contamination of
employees. Several items need to be
considered, such as  establishing work
zones, so that employees know the
hazards in different  areas and will keep
out of hazardous areas where the
employees' presence is not required. Use
of a buddy system and good site
communications will assist in rescue of
employees who become unconscious.
trapped or otherwise seriously disabled
on site.
  Site control is especially important in
emergency situations. Paragraph (d)
describes the basic components of a
program to control the activities and
movements of employees and equipment
at a hazardous waste site.
  Several site control procedures can be
implemented to reduce employee
exposure to chemical, physical,
biological, and safety hazards. The
degrees of site control necessary
depends on site characteristics, site size.
and the surrounding community. The
site control program should be
established in the planning stages of a
project and modified based on new
information and site assessments
developed during site characterization.
The appropriate sequence for
implementing these measures should be
determined on a site-specific basis. In
many cases, it  will be necessary to
implement several measures
simultaneously.
  The text used in this paragraph has
been adapted From Reference 6. Item 9
of the EPA manual (Order 1440.2)
indicates the need for this. In addition
Subpart C of 29 CFR Part 1926 provides
for regular inspection of job sites so
hazards on the site can be controlled.

Paragraph (e)—Training.
  The interim final rule includes specific
provisions for initial and review training
of employees before they are permitted
to engage in hazardous waste operations
that could expose them to safety and
health hazards. Both the EPA manual
and 29 CFR 1926.21 and 1926.22 referred
to in section 126(e) of SARA have
training and information requirements.
The EPA manual has specific provisions
for basic, intermediate and advanced
training. It requires 40 hours training for
employees managing uncontrolled
hazardous waste sites. 24 hours for
employees engaged  in routine activities
and 32 hours for intermediate activities.
Additionally, section 126 generally has
requirements for extensive training
programs. The clear congressional intent
of the interim final rule training
provisions is to provide employees with
the knowledge and skills necessary to
perform hazardous waste clean-up
operations with minimal risk to their
safety and health.
  The provisions for employees include
a minimum of 40 hours of initial
instruction off the site, and a minimum
of 3 days of actual field experience
under the direct supervision of a trained
and experienced supervisor, at the time
of job assignment. This amount of
training is specifically directed by
Congress for the interim final rule by its
reference to the EPA manual which
basically requires this amount of
training for hazardous waste operators
and Congress has specifically imposed
these hour and day requirements under
section 126(d) of SARA for the proposed
final standard. There are slight
differences between the EPA manual
and section 126(c) of SARA. But they are
sufficiently slight so that OSHA believes
it appropriate to make the interim final
rule consistent with what Congress
directs for the proposed final rule so that
employers need not make minor
modifications to their training programs
after two years.
  In addition there are often many
hazards at a waste site. The employee
needs to be trained to recognize the
hazards and appropriate work practices
to minimize those hazards. The
employee also needs to be well trained
in the use of respirators and other forms
of PPE. Without training those may not
be used effectively and will not provide
adequate protection. An extensive
training program is necessary to achieve
these objectives. The paragraph
specifies these and the other items
needed for effective training to avoid
hazards.
  Managers and supervisors directly
responsible for hazardous waste site
operations are to receive the same
training as that of employees and at
least eight additional hours of
specialized training on managing
hazardous waste operations. Since these
people are responsible for directing
others, it is necessary to enhance their
ability to provide guidance and to make
informed decisions. Both the EPA
manual and section 126(e) of SARA
direct eight hours  of additional training
for supervisors and managers.
  The provisions also state that
employees shall be retrained on an
annual basis on relevant matters such
as review of health hazards and use of
personal protective equipment.
Employees at hazardous waste
operations face serious health and
safety risks. Reminders are needed of
this and of work practices to avoid
 hazards. Personal protective equipment
 provides much of their protection. If
 there is no retraining in the use, care
 and maintenance of said equipment.
 such equipment is unlikely to be utilized
 in a manner to provide adequate
 protection. The regulation provides for
 eight hours of annual retraining. The
 EPA manual for refresher training (item
 *10) requires this amount of training.
   In all areas of training, whether it be
 for general site employees, on-site
 supervisors or for the use of specific
 equipment, the level of training provided
 needs to be consistent with the worker's
 job function and responsibilities. The
 training information should be presented
 clearly and. as a further safeguard.
 refresher training should be supplied to
 reemphasize the initial training and to
 update employees on any new policies
 or procedures.
   A less detailed training provision is
 provided for employees working at
 routine operation on RCRA sites. Those
 sites will have more stable working
 conditions and the hazards will be
 better identified and more carefully
 controlled. Therefore OSHA believes
 not as extensive training is needed for
 those employees for the interim rule.
 OSHA specifies 24 hours for the
 required training based on the EPA
.manual which specifies this as the basic
 level of training for most routine field
 activities. OSHA in the proposal
 document will request comment whether
 this or a greater amount of training is
 appropriate for the permanent rule.
 Paragraph (f}—Medical Surveillance
   The interim final rule both includes
 specific provisions for baseline and
 periodic medical examinations. The EPA
 manual referred to in section 126(e) of
 SARA has requirements for both initial
 or baseline and periodic medical
 examinations. The examinations are to
 be provided to those routinely exposed
 to hazardous substances, to those whose
 duties are  physically taxing and those
 who routinely wear respirators. In
 addition section 126(b) provides that
 routine medical examinations are to be
 provided to workers engaged in
 hazardous waste operations. Although
 the language is slightly different, the
 clear intent is to provide a
 comprehensive medical surveillance
 program for employees engaged in
 hazardous waste operations where it is
 medically prudent.
   The paragraph states medical
 surveillance is to be provided to
 employees who have been or are
 expected to be exposed to hazardous
 substances or health hazards above
 established permissible exposure limits

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45658     Federal Register / VoL  51. No. 244 / Friday, December 19. 1966  /  Rules and Regulations
for 30 oc-mare. d*ya ia a 12-njoath period
or who wear respirators 30 days during
the year. These are the employees who
will be at greater health, oik, and
employees who wear respirators need to
be examined to. detenaine-waether they
can safely do so as a routine matter.
Some dividing tona is nppnWt, because
employees who might be present on a
hazardous waste site only a few days a
year or working in areas such as offices
or the periphery where exposures are
low would not normally benefit from
medical surveillance as their likely
cumulative exposures to toxic chemicals
would be very tow probably not
significantly higher than the general
population. The EPA manual indicates
some dividing line is appropriate
because if directs medical surveillance
only for employees "routinely" exposed
  Wearing respirators for any part of
each of 30 days will require medical
surveillance because it indicates routine
exposure to toxic chemicals. There is no
requirement that  there be 240 hours of
respirator use before medical
surveillance is reqmred. Similarly being
exposed over established safe levels to
several chemicals each for less than 30
days but totalling more than 30 days pet
year requires medical surveillance. This
indicates routine  exposures to
hazardous substances and afoo
combinations of chemicals may cause
synergistic effects (rearing greater
health hazards than an individual
chemical.
  OSHA has based many of the details
of medical surveillance on its
experience in issuing health standards
under section 6(b) of the OSH Act and
as directed by section 6(bH7) of the Act
Congress would be knowledgable that
medical surveillance requirements in
these standards represent OSHA's
expert judgement of what is an
appropriate medical surveillance
program.
  The appropriate medical tests and
examinations depend on the substances
an employee is exposed to and whether
the employee wears a respirator. As
employees on baaardoo* waste  sites
will be exposed to differing substances,
the paragraph can not specifically state
the required tests. Consequently the
paragraph states that the employer
provide to the physician information on
exposures, respirator usa. and duties on
the site. The physician is then to
determine the appropriate medical
surveillance protocol in terms of specific
tests and examinations. By the employer
specifying duties the physician also can
judge whether the employee can handle
the arduousness of the work.
  In situations where most of the
employees, on the site have similar
exposures, the protocol may be similar
for all employee*. Where different
groupe of employees on the site have
substantially different exposures,
several different protocols may be
appropriate for the site's workers
depending on exposure*.
  There are a number of sources for
guidance oa specific medical
examination protocols. Chapter 5 of
Reference 8 providea such guidance by
groups of chemical* likely to be present
on a site. It references other authorities.
The manual should be supplied to the
physician. It is also a basis for the
medical surveillance program required
by this paragraph. In addition, the EPA
medical monitoring program guidelines
referenced by the EPA manual provides
guidance on specific protocols.
  The paragraph requires an initial or
baseline medical examination either
prior to the start up date for employees
who are currently working at hazardous
waste sites or prior to initial assignment
to an area where medical examinations
will be required. The purpose is to take
a detailed medical history and where
possible develop a health baseline prior
to any exposures so as to be able to
evaluate changes which may be
connected to hazardous substance
exposures. In addition the initial
examination will permit evaluation of
whether the employee can appropriately
wear respirators and whether the
employee has preexisting conditions
which would make exposure to
hazardous substances inappropriate. An
initial examination has been required by
other OSHA health standards and is
recommended in Reference 6.
  The physician must be informed of
what type of respirators and personal
protective equipment an employee is
likely to wear. The medical examination
is to include appropriate testa to
evaluate the employee's ability to wear
respirators and PPE.
  The physician will also specify the
protocol of the periodic examinations.
These may be different from the initial
examination, for example, only an
updated medical history would be
required. The periodic examinations are
required yearly. OSHA's experience in
other health standards has been that
this is an appropriate period and it  is
also recommended by Reference 6.
EPA's medical monitoring program
guidelines cross referenced in the EPA
manual recommends baseline annual
examination generally and a termination
examination. It is reasonable to
determine periodically whether
exposures have brought medical
changes and to identify conditions
caused by chemicals at an early stage to
permit more effective treatment. In some
circumstances, the physician may
advise more frequent examinations.
  Framing tinny are also to be provided
when the employee brings to the
employer's attention signs or symptoms
indicating possible overexposure to
hazardous substances. The employee is
to be trained in recognizing what
symptoms may indicate substances to
which the employee is exposed.
Examples may be dizziness or rashes.
Examinations are also required, when
medically appropriate, during
emergencies when exposure to higher
levels is possible. For example, a
urinary phenol test is appropriate for
employees exposed to  high levels of
benzene in an emergency.
  Finally, a medical examination is
required for.empioyeea who have been
required to have medical examinations
upon termination of employment or
reassignment to an area where medical
examinations are not required. This is to
detect conditions which have developed
prior to departure and is recommended
by the EPA program.
  The medical examination is to be
provided under the  supervision of a
licensed physician,  i.e., the person must
be qualified to make medical
judgements. As provided by section
6(b)(7) of the OSH Act, the employer is
to pay the cost of the examination.  In
addition provisions are included so that
the employee is not discouraged from
taking the examination. The exam is to
be given at a reasonable time and place.
If given during regular working hours the
employee shall receive the employer's
normal pay for that time. If the exam is
given outside regular working hours, the
employee shall be paid his regular
wages for the time spent taking and
waiting for the examination.
  The physician shall make a report to
the employer of medical conditions
which may make the employee at
increased risk to work at the site and
any recommendations  on limitations on
use of respirators and other PPE as a
result of the medical conditions. This
will provide guidance for the safe
employment of the employee at the site.
The physician shall not reveal diagnose*
or conditions unrelated to employment.
but shall inform the employee directly of
those conditions and any and all
occupationally related conditions.
  The medical paragraph requires that
appropriate records be kept to assist in
future evaluation of the employee's
health. Secondarily, this information
may assist in research on occupational
related disease. Records should be kept
pursuant to the provisions of 29 CFR
1910.20. Full consideration was given in

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           Federal Regfafer /  Vol.  51. No. 244 j Friday. December 19,  198& / Rule* and Regulations     45659
that standard to appropriate retention
periods.
Paragraph (g}—Eagineetifig Controls,
Work Prar.tif.fs, and PeesoaaeJ
Protective Equipment.
  Anyone entering a hazardoos waste
site mast be protected against potential
hazards. The purpose of engineering'
controls, work practices, and PPE is to
shield or isolate individuals front the
chemical, physical, and biurogie hazards
that may be encountered1 af a hazardous-
waste- site. Careful selection and use of
adequate engineering'controls; work
practices and PPE should protect any
employee from health and many other
hazards including hazard* to the
respiratory system, skin, eyes, face.
hands, feet, head, body, and hearing.
  Requirements of both Sufcpart C of 29
CFR Part 192ft and the EPA manual
mandated to be included1 in the standard
by Congress cover the provision and use
of personal protective equipment. See
for example, 29 CFR 1926.28 and items
7(9), 9fa)f77 and 9fb)f2}  of the EPA
manual. In addition existing OSHA
regulations which apply ta hazardous
waste operations, in 29 CFR Partl9M,
Subpart Z require-exposures to various
toxic and hazardous substances to be-
controlled with engineering controls if
feasible, otherwise with PPE. These-
requirements apply  now to employers
and workers on Superfund sites   	
pursuant to EPA regulations in 40 CFR
Part 300. Finally, Congress specified in
section 126(b) that there should be both
PPE and engineering control  provisions
for the permanent final standard
  Paragraph (g)(l) basically carries over
the existing requirements of Subpart Z.
OSHA regulated toxic and hazardous
substances are to be controlled to the
permissible exposure limit if feasible. If
not feasible they are to be controlled
with PPE
  Paragraph (g)(2) provides that to
achieve established permissible.
exposures limits for substances-not
regulated by OSHA, the employer may
use an appropriate combination of
engineering controls, work practices.
and PPE. As these are interim
regulations, preference for engineering
controte where not already required
wouid not be appropriate because of the
limited time frame of this regulation and
 the frequent inability to install such
 controls in a short period. In addition it
 is OSHA'a experience  that this is an
 appropriate approach based on the
 emergency temporary standards it has
 issued which are also in effect for a
 limited period. OSHA will ask for
 comment in these areas in the proposal
 document.
   Examples of engineering controls
 which may be feasible are pressurized
 cabs oa materials handling equipment or
 pressurized controf rooms, in material*
 handling area* However, in many cases
 personal protective equipment will be
 the only feasible means for providing
 protection to employees engaged in
 hazardous waste operations. The
 selection of personal protective
 equipment (PPE) must be based on the
 information obtained during the site
 characterization and analysis, as is
 required by paragraph- fgj(3)fr) of this
 standard. Once  an estimate of the types
 of hazard* and their potential
 concentration has been obtained, the
 proper respirators and protective
 clothing can be  selected based on the
 performance characteristics of the PPE
 relative to the site hazards and work
• conditions, as is required by paragraph
 (g)(3)(ii) of the standard. These
 requirements are derived from
 Reference 6 and are- also supported by a
 NIOSH document. "Personal Protective
 Equipment for Hazardous  Materials
 Incidents: A Selection Guide." These
 two document also support the
 requirements of paragraphs (g)(2)(iu)
 and (g)(2)(iv) which: require'positive
 pressure respirators with escape
 provisions to be used in IDLH
 atmospheres and totally-encapsulating
 chemical protective suits to be used
 where contact of the skin  by the
 substance would bean IDLH situation.
   Proper respirator selection, as
 required by this standard  and 29 CFR
 1910.134, involves providing a sufficient
 protection factor through the type of
 respirator used, respirator fitting, work
 site conditions,  and respirator selection
 and use program. Proper protective
 clothing selection, as required by this
 standard, involves choosing protective
 clothing made of materials and
 construction which will prevent
 breakthrough of hazardous substances
 by permeation and penetration, or
 reduce the level of exposure to a safe
 level during the employee's duration of
 contact. Information on the performance
 characteristics  of PPE is available in test
 reports and manufacturer's literature.
 Appendix B provides non-mandatory
 guidelines on classifying substance
 hazards as four levels (A. B, C, and D),
 and matching four levels of appropriate
 protection provided by different
 protective ensembles. These guidelines
 may be used as a basis for protective
 clothing selection, and the selection
 further refined  when more information is
 obtained, as provided for in paragraph
 (g)(2)(v) of the standard. (In certain
 circumstances, this standard does
 specify the appropriate level of
protection. See paragraph (cj(4)(iii)j.
Paragraph fg){3)(vi); cross reference the
existing requirements to select and use,
PPE pursuant to the requirements of 29
CFR 1910. Subpart I.
  Paragraph (gj(4) requires totally-
encapsulating suit materials used for
Level A protection (the highest Level of
protection) to provide protection from
the specific hazards which, have been
identified as requiring that level of
protection. The purpose of this
requirement is to be certain that the suit
selected is comprised of materials which
will provide the necessary protection.
since no one material will pravide
protection from all hazards. Paragraphs
(g)(4)(ii) and (g)(4)(iii) require totally-
encapsulating suits to be capable of
maintaining positive air pressure to hefp
prevent inward leakage of hazardous
substances, and to be  capable of
preventing inward gas leakage of more
than 0.5 percent. These requirements.
which are based on testing of totally-
encapsulating suits, are included to
establish a minimum level of suit
performance so that their level  of
protection can be quantified for proper
selection. The example test methods in
Appendix A for totally-encapsulating
chemical protective suits were taken
from, draft American Society for Testing
and Materials' committee documents.
   Paragraph (gj(5) requires a PPE
program to be established. This.
requirement is based upon reference 6.
29 CFR 1926.28, EPA manual items 4 and
7(g), and is included,, since, in most
cases. PPE will be the only protection
feasible for employee protection, and
because the amount of protection
afforded by PPE is dependent upon so
many factors, such as selection, fit. work
duration and conditions, and
decontamination. The PPE program is
required to insure that the level of
protection afforded by PPE is sufficient
and continues to be sufficient for
employee safety during hazardous
waste operations.

Paragraph (h}—Monitoring

   It is essential that employers be
provided with accurate information on
employee exposures in order to
implement the correct PPE. engineering
controls, and work practices. Airborne
contaminants can present a significant
 threat to employee safety and health.
Thus, identification and quantification
of these contaminants through air
monitoring is an essential component of
a safety and health program at a
hazardous waste site. Reliable
 measurements of airborne contaminants
 are useful for selecting personal
protective equipment, determining

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45660     Federal Register  /  Vol.  51,  No. 244  /  Er'iday,  December 19,  1986 / Rules  and  Regulations
whether engineering controls can
achieve permissible exposure limits and
which controls to use, delineating areas
where protection is needed, assessing
the potential health effects of exposure.
and determining the need for specific
medical monitoring. As mentioned
above, section 126(e)  of SARA mandates
the use of PPE by its direction that at a
minimum the requirements of the EPA
manual and Subpart C be followed.
Those include requirements for use of
PPE. But PPE cannot be effectively used
unless monitoring has identified the type
of PPE to be used. This  is a further
reason to include this provision in  the
interim final rule.
  The language of this paragraph was
adapted from reference 6.

Paragraph (i)—Informational Programs
  In  paragraph (i). Informational
Programs. OSHA is requiring employers,
as part of their safety and health
program, to develop and implement a
site specific safety and  health plan for
each hazardous waste operation site.
  The site safety and health plan shall
be developed by the employer, utilizing
the other parts of the organizational
plan and the employer's safety and
health program. The site safety and
health plan will address the anticipated
safety and health hazards of each work
operation or activity and the means to
eliminate the hazards or to effectively
control them to prevent injury or illness.
  This site safety and health plan is to
include: (1) The names of those
responsible for assuring that safe and
healthful practices and procedures are
followed on the whole site; (2) risk
analysis or systems analysis for specific
work tasks or operations on the site; (3)
employee training assignments both off
site and on-the-job-training on site; (4)
the list of required personal protective
equipment needed for each work task
and operation on site: (5)  the employer's
medical surveillance  program for the
site:  (6) the methods for identification
and characterization  of safety and
health hazards on the site including the
monitoring procedures that will be done
throughout the work on site; (7) site
control measures including those for
establishing work zones on the site; (8)
the necessary decontamination
procedures which are matched to the
kinds of anticipated contaminants to be
cleaned from employees and equipment:
(9) the standard operating procedures to
be used by employees on site: and (10)
the contingency plan for emergencies
and confined space entry procedures.
Safety meetings and briefings and site
inspections shall also be mentioned in
the plan as well as the procedures to be
followed in changing or modifying the
plan.    -,-,           •  .  •   '
  The'site1 safety and health plan is
necessary to protect employee health.
There are many hazards at a hazardous
waste operation which need to be
determined and addressed. The plan
provides that this will be done in a
systematic manner so that hazards will
not be missed and so that needed
protective action will not be overlooked.
The approach used has be adapted from
reference 6.
Paragraph (j)—Handling Drums and
Containers
  The handling of drums and containers
at hazardous waste sites poses one of
the greatest dangers to hazardous waste
site employees. Hazards include
detonations, fires, explosions, vapor
generation, and physical injury resulting
from moving heavy containers by hand
and working around stacked drums,
heavy equipment, and deteriorated
drums. While these hazards are always
present, proper work practices can
minimize the risks to site personnel.
Handling and storage of hazardous
substances is addressed in item (a) of
the EPA manual.
  Containers are handled during
characterization and removal of their
contents and during other operations.
Many of the hazards encountered during
the handling of drums occur during the
handling of containers. The relative size
of a container when compared to the
size of a drum is no indication of the
degree of hazard posed by the container.
They should be treated in accordance
with the level of hazard posed by their
contents not by their size. The language
used in this paragraph was adapted
from Reference 6.
Paragraph (k)—Decontamination
  As part of the care of PPE required by
this standard, decontamination is a
necessary practice to properly protect
those employees who may be exposed
to hazardous substances.
Decontamination provisions protect an
employee from being exposed to
hazardous substances which would
otherwise be on the employee's PPE
when it is removed.  The standard
requires that a decontamination plan be
developed and implemented before  any
employees or equipment may enter
areas on site where  potential for
exposure to hazardous substances
exists.
  As required by the standard.
decontamination procedures and areas
shall be developed to minimize
hazardous exposures to employees
whose equipment and PPE are being
decontaminated, as  well as  to
employees who are assisting in the
decontamination of workers and
equipment. These measures are required
since without proper procedures and
decontamination areas, employees may
be unknowingly exposed to hazardous
substances which have contacted, or
otherwise adhered to equipment and
clothing. The standard also requires that
all employees, clothing, equipment and
decontamination fluids and equipment
be decontaminated or disposed of
before leaving a contaminated area.
These provisions are  required so that
contaminated persons and materials do
not leave the "hot zone" and thereby
expose other employees and persons to
hazardous substances.
  Decontamination methods and
cleaning fluids must be matched to the
particular hazardous  substance at the
site in order  for the decontamination
procedures to be effective in removing
the hazards from PPE and other
equipment. No one decontamination
fluid will be  effective for all hazardous
substances. As required by the standard
the decontamination  program must be
effective and it must be monitored by
the site safety and health officer to
maintain its  effectiveness. These
requirements are included so that
employees are not exposed to hazardous
substances by reusing PPE and other
equipment which are still contaminated.'
  The-language used  in this paragraph
was adapted from reference 6.

Paragraph (I)—Emergency Response
  Section 126{e) of SARA specifically
discusses protecting "emergency
response workers." in addition in the
EPA manual under items 4 and 9 and in
29 CFR 1926.23 and 1926.24 call for
preparations and planning for
emergencies. Congress made its intent
clear that emergency planning and
response is an important part of any
employer's safety and health program
and indicated that it is to be addressed
in the interim final rule.
  In paragraph (1)(1),  Emergency
Response. General, OSHA is requiring
employers covered in paragraph
(a)(2)(ii), who are involved in hazardous
waste operations, as  part of their on-sile
contingency planning to develop and
implement an emergency response plan.
These employers are  to inform all their
employees on the waste site about the
emergency response plan. The plan is to
be available for use prior to the start of
work on the  site. The plan will be a part
of the site safety and health plan. The
elements of the emergency response
plan will include: (1)  Recognition of
emergencies: (2) methods or procedures
fof alerting employees on site: (3)

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           Federal Register /  Vol.  51, Ncr. 244 / Friday,  December ia 1986 / Rules  and  Regulations     45661
evacuation procedures and routes to
places of refuge or safe distances away
from the danger area: (.4-j means and
methods foe emergency medical
treatment and first aid; (5J line of
authority for employees^ and (ef on-site
decontamination procedures: site
control means and methods for
evaluating the plan.
  Employers whose employees will be
responding to hazardous substance
emergency incidents from their tegular
work location or duty station, such as a
fire department, fire brigade or
emergency medical service, will also be
required to have an emergency response
plan. These employees which may be
called upon to respond to hazardous
substance emergency incidents
involving a railroad tank car; motor
carrier tank truck or to a plant location
are considered off-site emergency
response activities under this section.
The emergency response plan is to
include the incident command system
required in paragraph (I)(3) of this
section.
  In paragraph (l)(2). Hazardous waste
operations, on-site emergency response*
OSHA is requiring the training of on-site
emergency response personnel to have
the same basic training as for the other
employees involved in on-site hazardous
waste operations plus the training
needed to develop and retain the
necessary skills for anticipated
emergency response activities. Also,  the
procedures for handling hazardous
substances cm-site emergency  incidents
are to be oriented to the specific site  and
made a part of the emergency response
plan.
  The requirement of paragraphs (!)(3)
and (1)(4) apply more  broadly to all
employers whose employees respond to
off-site emergency incidents. In
paragraph (11(3).  Off-site emergency
response. OSHA is mandating that
employers, such  as fire departments,
emergency medical and first-aid squads,
fire brigades, etc., conduct monthly
training sessions for their employees
totalling 24 hours annually.
  Note.—OSHA does not have jurisdiction
over stale and local government employees.
OSHA state plan states  must issue
regulations as effective as these to cover
slate and local government employees in the
state.

  Training activities, such as breathing
apparatus uae. training, hose handling
and preplanning may be used  as training
subjects  for the monthly sessions
provided hazardous substance incident
operations are included in the
presentation, discussion or drill. These
training sessions and drills must involve
at least 24 hours of training on an
annual basis.
  The incident command system shall
be established by these employers for
the incidents that will be under their
control and shall be interfaced with the
other organizations OP agencies who
may respond to such arr incident. The
National Transportation Safety Board,
as a  result of its investigation of
hazardous materials incidents, has
consistently recommended that better
state and local emergency response
planning be done to reduce the loss of
life and property and that a system
using a command post and on-scene
commander be implemented. (See
Special Investigation Report. On-scene
Coordination Among Agencies at
Hazardous Materials Accidents, NTSB-
HZM-79-3. September 13,1979; and
Multiple Vehicle Collisions and Fire,
Caldecott Tunnel near Oakland,
California, NTSB/HAR-83/01, National
Transportation Safety Board.
Washington, DC. April 7.198Z for
further information.) Where available.
state and local district emergency
response plans shall be utilized in
developing the incident command
system and the emergency response
plan to assure  compatability with the
other emergency responding agencies or
employers.
  In paragraph (1)(4), Hazardous
materials teams, OSHA is requiring
employers, who utilize specially trained
teams involved in intimate contact with
controlling or handling hazardous
substances, to provide special training
for the affected employees in such areas
as care and use of chemical protective
clothing, techniques and procedures for
stopping or controlling leaking
containers and decontamination of
clothing and equipment for anticipated
hazardous substance incidents. The
employer is to make available to each
team member a physical examination by
a licensed physician and to implement a
medical surveillance program in
accordance with the requirements of
paragraph (f) of this section.
  In paragraph (1)(5), OSHA is requiring
employers covered in paragraphs (a)(2)
(i) and (ii) of this section, who will be
involved in cleaning up hazardous waste
after the emergency response activities
are concluded, to comply with the same
requirements that apply to others
involved with  hazardous waste clean-up
operations. These hazardous waste
clean-up operations will be typically
done by special contractors and not by
those agencies involved in responding to
the initial emergency incident
Paragraph (m)—Illumination
  OSHA is required by SARA in section
126(e) to cover lighting of the worksite.
In paragraph (m), Illumination. OSHA
requires certain minimum illumination
levels for work areas that are occupied
by employees. Section 126(e) of SARA
requires as a minimum the inclusion of
the requirements of Subpart C of 29 CFR
Part 1928. Section 1926.26 of that
Subpart requires the amount of
illumination set forth in this paragraph.

Paragraph (n)—Sanitation for
Temporary Worksites
  In paragraph (n), Sanitation for
temporary worksites, OSHA sets
minimum requirements for potable and
non-potable water  supplies, toilet
facilities, and other areas related to
sanitation at temporary workplaces.
OSHA is mandated by SARA in section
126(e) to include sanitation requirements
in the interim final  rule since it requires
the incorporation of provisions of
Subpart C.

Paragraph (o)—Operations Conducted
Under the Resource Conservation and
Recovery Act of 1976 (RCRAJ
  OSHA is providing a separate
paragraph for operations conducted at
worksites involving hazardous waste
storage, disposal and treatment
operating under the Resource
Conservation and Recovery Act of 1976
(RCRA). This separate paragraph of
requirements is appropriate because
RCRA site operations, (not including'
major corrective actions and their
associated hazards which are like
CERCLA sites and are covered by  the
main  part of the standard) generally are
different from the operations and
hazards found on a CERCLA clean-up
site. For example, RCRA sites covered
by this paragraph tend for the most part
to be  fixed on-going operations
involving the receiving, processing.
storage, treatment, and disposal of
hazardous wastes  or substance from
outside sources. CERCLA sites on  the
other hand are temporary emergency
clean-up operations involving often
undefined and substantial quantities of
hazardous substances.
  Consequently hazards should be
better controlled and more routine and
stable for the RCRA sites covered  by
this paragraph and so less extensive
requirements are appropriate.
Paragraph (pj—Start-up Dates
  Section 126(e) of SARA directs that
these interim final  regulations take
effect on issuance. Consequently, these
regulations do become effective on
issuance. However, completion of

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                                                       •••''•I             •
45662     Federal  Register / Vol. 51, No.  244 / Friday',', December 19, 1986 / Rules and Regulations
implementation for some provisions is
not feasible immediately. For these
provisions, commencemesl of
implementation must begin immediately,
but completion of full compliance is
required as soon as possible or feasible
but in no case later than a  specified
date, which is no longer than three
months.
  It is OSHA's judgment that all
provisions can be fully implemented by
the periods specified. OSHA also
believes that  the immediate
effectiveness  provisions specifically
apply to the mandatory requirements.
  OSHA does not believe that Congress
intended that work at current hazardous
waste operations stop until
implementation of all requirements can
be feasibly completed. This paragraph
so indicates. However, for  new sites,
these requirements can be  completed  in
advance. It is not OSHA's  intention that
emergency actions necessary to protect
the public safety and health be
prevented because in a particular
circumstance it is not feasible to carry
out particular requirements of this
standard in the time needed to respond
to the emergency.

III. References
  1. Superfund  Amendments and
Reaulhorization Act of 1986 (SARA). Pub. L.
99-199.
  2. Comprehensive Environmental
Response. Compensation and  Liability Act of
ISlWi ICF.RCLA  or "Superfund"). Pub. L. 9fv-
510. December  11.1980. 94 Slat. 2767.
  3. Resource Conservation and Recovery
Act of 1976 (RCRA). Pub. L. 94-580. October
21. 197(5. 90 Slat. 2795.
  4. "Health and Safety Requirements for
Kinployees Engaged in Field Activities".
Knvirunmencil  Protection Agency Order
1440.2. t'.S. Environmental Protection
Api-ncy. |uly 12. 1981.
  5. Subp;irts C and D of 29 CFR Part 1926.
  11.' Occupational Safety and Health
(.'.iiMjiice Manual for Hazardous Waste Site
Activities.". Occupation!!! Safety and Health
Administration. Environmental Protection
Aiienuy. U.S. Ccast Guard,  and National
Ir.slitiiSit  for Occupational Safety and Health.
DHHS (NIOSH1 Publication No." 85-115.
Oclut:er  U'8S.

IV. Regulatory Impact Analysis,
Regulatory Flexibility Analysis and
Environmental Impact Analysis
  OSHA anticipates that this interim
final standard will have a significant
impact upon employers and their
employees who work at CERCLA sites
and at some RCRA sites: and who
respond to emergency clean-ups of
hazardous substance spills. OSHA has
had little time since the  enactment of
SARA to collect information concerning
these industries. As a result, the
currently available information is
insufficient for OSHA to .use to estimate
the potential benefits and costs that
would occur as a consequence of
compliance with this interim final rule.
OSHA is collecting additional
information to be used in conjunction
with the1 information from the  comments
that will be received in response to
publication of the proposed rule
covering hazardous  waste operations.
This information will be sufficient for
OSHA to provide a complete Regulatory
Impact Analysis for the final rule that
will govern hazardous waste operations.
  Regulatory Flexibility Act Analysis.
The requirements of the Regulatory
Flexibility Act are not applicable to this
interim final rule, under 5 U.S.C, 603(a),
because notice and comment proposed
rulemaking under the Administrative
Procedures Act. or any other statute, is
not required.
  Environmental Impact Analysis. The
National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et seq).
as implemented by the regulations (40
CFR Part 1500) of the Council  on
Environmental Quality (CEQ), requires
that federal agencies assess their
regulatory actions to determine if there
is a potential for a significant  impact on
the quality of the human environment
and, if necessary, to prepare an
environmental impact statement.
  In accordance with these
requirements and DOL NEPA
Compliance Procedures (29 CFR Part 11.
Subpart B. section 11.10(a)(4)), OSHA
has determined that due to the
compressed rulemaking schedule
imposed by the Congress in issuing the
interim regulation, no environmental
impact statement will be prepared for
this interim rule.
  In similar situations, for example.
when an emergency temporary standard
(ETS) has been issued, the courts have
held that NEPA does not require
advance preparation of an
environmental statement for an ETS
(Dry Color Manufacturing Association
v. U.S. Department of Labor: 486 F. 2d
98.107 [3rd Cir. 1S73J). This interim final
standard is similar in nature to an ETS
issued for relatively brief periods for
short nutice pursuant to section 6(c) of
the Occupational Safety and Health Act
of 1970 and section 101(b) of the Federal
Mine Safety and Health Act of 1977. The
DOL NEPA regulations set forth in 29
CFR Part 11. Subpart B. section
11.10(a)(4). provide that in these
situations the regulations set forth in 40
CFR Parts 1500 et seq may not be strictly
observable.
  OSHA, however, will assess the
environmental effects of the proposed
permanent regulation of hazardous
waste sites. The possibility that
increased training related to employee
safety and health protection will also
affect and reduce inadvertent
environmental releases of hazardous
substances at waste sites will be
analyzed. The results of this study will
be available for review and comment
prior to the hearing on the proposed
permanent standard and will be an
appropriate issue for discussion at the
public hearings scheduled for the
proceeding.
  In the interim.  OSHA welcomes any
comments on any environmental effects
that might occur  as a result of
promulgation of a rule on hazardous
waste sites.

V. International Trade

  OSHA has preliminarily concluded
that this interim  final rule will not
significantly affect international trade.
The firms that will be primarily affected
by this interim final rule deal with
hazardous waste products and are not
involved in international trade. In
addition, the hazardous wastes to be
handled under this interim final rule are
primarily by, products from previously
manufactured goods and consequently.
any potential costs would not be borne
by the goods that are currently being
traded. Nevertheless, the information
dial OSHA is collecting and the
information that will be supplied  in
response to the publication of the
proposed rule covering Hazardous
Waste Operations will be carefully
reviewed and analyzed to establish the
potential impacts of the final rule upon
international trade.

VI. State Plan States
  This Federal Register document adds
an interim final rule (section  1910.120,
"Hazardous Waste Operations and
Emergency Response'') to existing
Subpart H of 29 CFR Part 1910, OSHA's
general industry standards on
hazardous materials. The 25 States with
their own OSHA approved occupational
safety and health plans must develop a
comparable standard applicable to both
the private and public (State and  local
government employees) sectors within
six months of the publication date of
this interim final rule or show OSHA
why there is no need for action, e.g.,
because an existing state standard
covering this area is already  "at least as
effective" as the new Federal standard.
These states are Alaska. Arizona.
California, Connecticut (for state  and
local government employees only),
Hawaii, Indiana, Iowa. Kentucky.
Maryland. Michigan, Minnesota,
Nevada. New Mexico. New York  (for
state and local government employees

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           Federal Register / Vol. 51, No.  244 / Friday, December 19. 1986 / Rules and Regulations     45663
only), North Carolina. Oregon, Puerto
Rico, South Carolina, Tennessee, Utah,
Vermont, Virginia, Virgin islands,
Washington, and,Wyoming. Until such
time as a state standard is promulgated.
Federal OSHA will provide interim
enforcement assistance,.as appropriate,
in these states.

List of Subjects in 29 CFR Part 1910
  Containers, Drums, Emergency
response, Flammable and combustible
liquids, Hazardous materials, Hazardous
substances, Hazardous wastes.
Incorporation by reference. Materials
handling and storage. Personal
protective equipment. Storage areas.
Training, Waste disposal.

VII. Immediate Effectiveness and
Absence of Notice and Comment
  Section 126(e) of SARA specifically
provides that the "Secretary of Labor
shall issue interim final regulations
under this section within 60 days. .  ."
after date of enactment. The express use
of the phrase "interim final regulations,"
which in the rulemaking context
commonly describes a rule issued
without notice and comment, in
connection with the extremely limited
time frame provided by this section.
makes clear that Congress intended this
rule to be issued without the time-
consuming process of notice and
comment. The Agency, therefore,
concludes that neither the notice and
comment rulemaking provisions of the
OSH Act nor those of the
Administrative Procedures Act are
applicable to the issuance of this interim
final rule. The Agency also expressly
finds that "good cause" exists under 5
U.S.C. 553(b)(B) for not providing notice
and comment because notice and
comment procedures, under these
circumstances, would be impractical
and contrary to the public interest.
  Section 126(e) also expressly provides
that "Such interim final regulations shall
take effect upon issuance. .  . ." OSHA
finds this specific direction of law
requires the Agency to issue this rule
with an immediate effective date and.
further, constitutes good cause not to
delay the effective data-of this rule until
30 days after publication under 5 U.S.C.
553{d).

Authority
  This document has been prepared
under the direction of John A.
Pendergrass, Assistant Secretary of
Labor for Occupational Safety and
Health, U.S. Department of Labor. 200
Constitution Avenue NW., Washington,
DC. Pursuant to section 126(e) of the
Superfund Amendments and
Reauthorization Act of 1986 (Pub. L
99-499), Sections 6 and  8 of the
Occupational Safety and Health Act of
1970 (29 U.S.C. 655, 657), Sections 3 and 4
of the Administrative Procedures Act (5
U.S.C. 552(a), 553), and Secretary of
Labor's Order 9-83 (49 FR 35736), 29 CFR
Part 1910 is amended by adding a new
§1910.120. Hazardous Waste
Operations, as set forth below, effective
December 19,1986.
  Signed at Washington, OC this 16th day of
December 1986.
John A. Pendergrass,
Assistant Secretary of Labor.

PART 1910-OCCUPATIONAL SAFETY
AND HEALTH STANDARDS

  1. The Authority citation for Subpart
H of Part 1910 is amended by adding the
following:
  Authority: * ' *  Section 1910.120 issued
under the authority of section 128(e) of the
Superfund Amendments and Reauthorization
Act of 1986 (Pub. L 99-499). Sections 6 and 8
of the Occupational Safety and Health Act of
1970 (29 U.S.C. 655, 657), sections 3 and 4 of
the Administrative Procedure Act  (5 U.S.C.
552fa), 533) and Secretary of Labor's Order 9-
83 (48 FR 35736).
  2. Part 1910 of Title 29 of the Code of
Federal Regulations is amended by
adding a new § 1910.120 to read as
follows:
§ 1910.120  Hazardous waste operation*
and emergency response.
  (a) Scope, application,  and
definitions.—(1) Scope. This section
covers employers and employees
engaged in the following  operations:
  (i) Hazardous substance response
operations under the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
as amended (42 U.S.C. 9601 et sea)
(CERCLA), including initial
investigations at CERCLA sites before
the presence or absence of hazardous
substances has been ascertained;
  (ii) Major corrective actions taken in
clean-up operations under the  Resource
Conservation and Recovery Act of 1978
as amended (42 U.S.C. 6901 et seq)
(RCRA);
  (iii) Operations involving hazardous
waste storage, disposal and treatment
facilities regulated under 40 CFR Parts
264 and 265 pursuant to RCRA, except
for small quantity generators and  those
employers with less than 90 days
accumulation of hazardous wastes as
defined in 40 CFR 262.34:
  (iv) Hazardous waste operations sites
that have been designated for clean-up
by state or local governmental
authorities; and
  (v) Emergency response operations for
releases of or substantial threats of
releases of hazardous substances  and
post-emergency response operations for
such releases.
  (2) Application, (i) All requirements of
Part 1910 and Part 1926 of Title 29 of the
Code of Federal Regulations apply
pursuant to their terms to hazardous
•waste operations (whether covered by
this section or not). In addition the
provisions of this section apply to
operations covered by this section. If
there is a conflict or overlap, the
provision more protective of employee
safety and health shall apply. 29 CFR
1910.5(c)(l) is not applicable.
  (ii) All paragraphs of this section
except paragraph (o) apply to hazardous
substance response operations under
CERCLA, major corrective actions taken
in clean-up operations under RCRA,
post-emergency response operations,
and hazardous waste operations that
have been designated for clean-up by
state or local governmental authorities.
  (iii) Only the requirements of
paragraph (o) of this section apply to
those operations involving hazardous
waste storage, disposal, and treatment
facilities regulated under 40 CFR Parts
264 and 265, except for small quantity
generators and those employers with
less than 90 days accumulation of
hazardous wastes as defined in 40 CFR
262.34.
  (iv) Paragraph (1) of this section
applies to emergency response
operations for releases of or substantial
threats of releases of hazardous
substances.
  (3) Definitions—"Buddy system "
means a system of organizing employees
into work groups in such a manner that
each employee of the work group is
designated to observe the activities of at
least one other employee in the work
group. The purpose of the buddy system
is to provide quick assistance to those
other employees in the event of an
emergency.
  "Decontamination " means the
removal of hazardous substances from
employees and their equipment to the
extent necessary to preclude the
occurrence of foreseeable adverse
health effects.
  "Emergency response" means
response to any occurrence which
results, or is likely to result, in a release
of a hazardous substance due to an
unforeseen event.
  "Established permissible exposure
limit" means the inhalation or dermal
permissible exposure limit specified in
29 CFR Part 1910. Subpart Z. or if none
is specified the exposure limits in
"NIOSH Recommendations for
Occupational Health Standards" dated
September 1986 incorporated by
reference, or if neither of the above is
specified, the standards specified by the
American Conference of Governmental
Industrial Hygienists in their publication
"Threshold Limit Values and Biological
Exposure Indices for 1986-87" dated

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                   Aegnter-jf Vol SI. 3to.  234 / Friday. Beoembw IB. 1986 / Rotes ^nd
                                       hmiatapaietic system, and agents which
                                       damage tte h»gs, skin, eyes, or'mucaas
                                       memferraaem. Purther dofiniMon of the
                                       tenB8.uaed-above-can-b«4oan*fl22fl, (61$ 841-4287
  mnrtr-gn fjiiib iimnn-nf Governmental
  Imhutakd«j«ien»t8. esflfl Gtemwsy
  fun, JhdMmgD-7. Cincinnati, .OH.
  45211-4438.
and aw available forinspectkm and
copying at the Q9HA Docket Office,
Dockes:Na..S-7e& ftoam.N-sen.2n
Ct^trhitJoa Asre-, NW., WasfamgtoB.
QC 20218.
  "Htamn1miaimtmtftnr.if" mgamt any
subatmme deaignatedtcr iiateii under (i)
through Jivj betow, exposure to which
results ormay resuttia adverse. effect*
on theiEaith or safety of employees:
  (i) any substance defined under
section 101(14) of CERCLA,
  (ii) any biological agent and other
dittpAgi%j7anfiflg afie&ti&s defined -i&
section 104(a)l2) of CERCLA,
  (iii) any substance listed by the U.S.
Department of Transportation and
regulated as hazardous materials under
49 CFR 172.101 and appendices, and
  fiv) hazardous waste.
  "Hazardous waste "means (f) a waste
or combination of wastes as defined in
40 CFR2B1.3, or (ii) those substances
defined in 49 CFR 171.8.
  Hazardous waste operation" mean*
any operation involving employee
exposure to hazardous wastes,
hazardous substances, or any
combination of hazardous wastes and
hazardous substances that are
conducted within the scope of this
standard.
  "Hazardous waste site"oT "site"
means any facility or location at which
hazardous waste opera Buna -within the
scope of this standard taice place.
  "Hearth hazard" means *a chemical,
mixture of chemicals or a pathogen .for
which "Acre is statistically significant
evidence based tm at iessttnte study
established 'scientrnc principles that
acute or chronic iieahh uTTecu* may
occur in excused euiyluyues. The 'term
"health hazard" includes chemicais
which ace carcinogens, IUJUL or 'ui^l^
tone. agents* Teprodnctive' toxins*
irritants* ixuujufVtis.- senvifizcrs.
licpalotoxms* ne^mrotoxms.
netnxrtDXBU, 'agents NuiCk vet on the
IrfevrfoeMt" means wiy condition that
poses an immediate threat to life; or
•whioh-udikeiy to (eutk-ia acute -or
immediate severe health effects. Iftra
includes oxygen deficieacy-oonditio
mpnna any gmtp pliniral «iqn QJ
symptom of a serkrua.-expusure-relalfid
reaction manifested within 72 hours
after expowie to a haaacdiuis
anbfttaace.
  "Oxygen deficiency" means that
concentratioa of oxygen by valume
below which air supplying respiratory
protection. must be prodded, it exbts in
atmospheres where -the percentage of
oxygen by vehune-ts lem (baa 19:5
percent oxygen.
  "Site safety. and health officer" means
the individual located on a hazardous
waste site who is responsible to the
employer and has the authority and
knowledge necessary to implement the
site safety and health plan and verify
compliance with applicable  safety and
hearth requirement.
  (b) Genera] ivquhvinents — (f) Safety
and health program. Each employer
shall develop and implement a safety
and heahh program for its -employees
involved in hazardous waste -opentims.
The pfufflnia. as a mimnrom. shall
incorporate the requirements of this
section and be provided, as  appropriate.
to any subcontractor or its
representative who will %e involved
with the hazardous waste operation.
The program shall be designed to
identify, evaluate, and control safety
and heahh hazards and provide for
emergency response for hazardous
waste operations.
  (2) Site characterization and analysis.
Hazardous waste sites shall be
evaluated in accordance with paragraph
(ej-ef this  section to identify specific site
hazards and to determine vie
appropriate safety and heahh control
procedures needed to -protect employees
from the identified hazards.
  (3) Site control. Sfte •control
procedures shall be implemented in
accordance with -paragraph  (dj of -this
section -before clean-up -work begins to
control employee exposure to hazardous
substances^
  (4) Training. Initial or refresher or
review training umeting-the
requirements of paragraph (e.) of this
section •sttHH'be provided to employees
before •they are permitted to engage .in
hazardous waste .operations :thal£ould
expose -then lo-haxardeos substances,
safety, or hearth hazards.
  (5) Medical surreiflance. Medical
survefBance shall be provided in
accordance with paragraph ff) of this
section for employees exposed or
potentiaHy exposed to hazardous
substances or health hazards or who
wear respirator*.
  (6) Engineering controls,  work
practices and personal protective
equipment. Engineering controls, work
practices, personal protective
equipment or a combination of these
shall be implemented in accordance
with paragraph (g) of this section to
protect employees from exposure to
hazardous substances and health
hazards.
  (7) Monitoring. Monitoring shall be
performed is accordance with
paragraph (h) of this section to assure
proper selection of engineering controls.
work practices .and personal protective
equipment go that flmployeefi are not
exposed te levels which exceed
established permissible exposure bants
for hazardous substances.
  (8) Informational program. Employees.
contractors, and subcontractors or -their
representative shall be informed of the
degree and nature of safety and health
hazards specific to the worksite by
using the safety and heahfa plan outlined
in paragraph p) of this section.
  (9) Mntanrtl hnmtHng. Hazardous
substances and cnntamiBated soils,
liquids, and omer residues. shall be
handled, transported, labeled, and
disposed of in accordance with
paragraph (j) of this section.
  (10) Decontamination. Procedures for
all phases of decontamination shall be
developed and implemented in
accordance with paragraph (k) of thn
section.
  (11) Emergency response. Emergency
response to hazardous waste operation
incidents shall be conducted in
accordance with paragraph (1) of this
section.
  (12) Illumination. Areas accessible to
employees shall be lighted in
accordance with the requirements of
paragraph (m) of this section.
  (13) Sanitation. Facilities for employee
sanitation shall be  provided in
accordance with paragraph (n) of thk
section.
  (14) Site excavation. Site excavatkm*
created during initial site ptepacaitan-or
during hazardous waste -operations .ahall
be shored or sloped to prevent
nrridjiivtal coUapie am) -pnruinr.tMl in
accordance -with Suhpart P of 29 CFR
Part 1928.
   (!•>) Csnttactots nn*1
An employ ar who retains ctaatractar tt

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           Federal Register / Vol. 51. No.  244 / Friday, December  19. 1986 / Rules  and  Regulations     45665
sub-contractor services for work in
hazardous waste operations shall inform
those contractors, sub-contractors, or
their representatives oi any potential
fire, explosion, healtiv or other safety
hazards of the hazardous waste
operation that have been identified by
the employer.
  (c) Site characterization and analysis.
(1) A preliminary evaluation of a site's
characteristics shall be performed prior
to site entry by a trained person to aid
in the selection of appropriate employee
protection methods prior to site entry.
.During site entry, a more detailed
evaluation of the site's specific
characteristics shall be performed by a
trained person to further identify
existing site hazards and to further aid
in the selection of the appropriate
engineering controls and personal
protective equipment for the tasks to be
performed.
  (2) All suspected conditions that may
pose inhalation or  skin absorption
hazards that are immediately dangerous
to life or health (IDLH) or other
conditions that may cause death or
serious harm shall  be identified during
the preliminary survey and evaluated
during the derailed survey. Examples of
such-hazards include, but are not limited
to, confined space  entry, potentially
explosive OF flammable  situations,.
visible vapor clouds, or areas where
biological indicators such as dead
animals or vegetation are located.
  (3) The following information to the
extent available shall be obtained by
the employer prior to allowing
employees to enter a site:
  (i) Location and  approximate size of
the site.
  (ii) Description of the  response
activity and/or the job task to be
performed.
  (iii) Duration of the planned employee
activity.
  (iv) Site topography.
  (v) Site accessibility by air and roads.
  (vi) Pathways for hazardous
substance dispersion.
  (vii) Present status and capabilities of
emergency response teams that would
provide assistance to bhrsite employees
at the time of an emergency.
  (viii) Hazardous substances and
health hazards involved or expected at
the site and their chemical and physical
properties.
  (4) Personal protective equipment
(PPE) shall be provided  and used during
initial site entry in accordance with the
following requirements:
  (i) Based upon the results of the
preliminary site evaluation, an ensemble
of PPE shall be selected and used during
initial site entry which will provide
protection to a level of exposure below
established permissible exposure limits
for known or suspected hazardous
substances and health hazards and will
provide protection against other known
and suspected hazards identified  during
the preliminary site evaluation.
  (ii) An escape self-contained
breathing apparatus of at least five
minutes duration shall be carried  by
employees or kept available at their
immediate work station if positive-
pressure self-contained breathing
apparatus is not used as part of the
entry ensemble.
  (iii) If the preliminary site evaluation
does not produce sufficient information
to identify the hazards or suspected
hazards of the site an ensemble of Level
B PPE shall be provided as minimum
protection and direct reading
instruments shall be carried for
identifying IDLH conditions. (See
Appendix B for guidelines on Level B
protective equipment.)
  (iv) Once the hazards of the site have
been positively identified, the
appropriate PPE shall be selected and
used in accordance with paragraph (g)
of this section.
  (5) The following monitoring shall be
conducted during  site entry when the
site evaluation produces information
which  show the potential for ionizing
radiation or IDLH conditions, or when
the site information is not sufficient to
rule out these possible conditions:
  (i) Monitoring for hazardous levels of
ionizing radiation.
  (ii) Monitoring the air with
appropriate test equipment for IDLH and
other conditions that may cause death
or serious harm (combustible or
explosive atmospheres, oxygen
deficiency, toxic substances.)
  (iii) Visually observe for signs of
actual or potential IDLH or other
dangerous conditions.
  (6) Once the presence and
concentrations of specific hazardous
substances and health hazards have
been established, the risks associated
with these substances shall be
identified. Employees who will be
working on the site shall be informed of
any risks that have been identified.
  Note.—Risks to consider include, but are
not limited to:
  Exposures exceeding the appropriate
Threshold Limit Values (TLVs), Permissible
Exposure Limits (PELs), or Recommended
Exposure Limits (RELs).
  IDLH Concentrations.
  Potential Skin Absorption and Irritation
Sources.
  Potential Eye Irritation Sources.
  Explosion Sensitivity and Flammability
Ranges.
   (7) Any information concerning the
chemical, physical, and toxicologic
properties of each substance known or
expected to be present on site that is
available to the employer and relevant
to the duties an employee is expected to
perform shall be made available to all
employees prior to the commencement
of their work activities.
  (8) An ongoing air monitoring program
in accordance with paragraph (h) of this
section shall be implemented after site
characterization has determined the site
is safe for the start-up of operations.
  (d) Site control. (1) A site control
program for preventing contamination of
employees shall be developed during the
planning stages of a hazardous waste
operation clean-up.
  (2) The site control program shall, as a
minimum, include: A  site map; site work
zones; the use of a "buddy system"; site
communications: the  standard operating
procedures or safe work practices: and,
identification of nearest medical
assistance.
  (e) Training. (1) All employees (such
as equipment operators and general
laborers) exposed to  hazardous
substances, health hazards, or safety
hazards shall be thoroughly trained in
the following:
  (i) Names of personnel and alternates
responsible for site safety and health:
  (ii) Safety, health 'and other hazards
present on the site;
  (iii) Use of PPE:
  (iv) Work practices by which the
employee can minimize risks from
hazards;
  (v) Safe use of engineering controls
and equipment on the site;
  (vi) Medical surveillance requirements
including recognition of symptoms and
signs  which might indicate over
exposure to hazards; and
  (vii) Paragraphs (G) through (K) of the
site safety and health plan set forth in
paragraph (i)(2)(i) of  this section.
  (2) All employees shall at the time of
job assignment receive a minimum of 40
hours of initial instruction off  the site.
and a minimum of three days of actual
field experience under the direct
supervision of a trained, experienced
supervisor. Workers  who may be
exposed to unique or special hazards
shall be provided additional training.
The level of training provided shall be
consistent with the employee's job
function and responsibilities.
  (3) On-site management and
supervisors directly responsible for or
who supervise employees engaged in
hazardous waste operations shall
receive training as provided in
paragraph (e)(l) and (e)(2) of this section
and at least eight additional hours of
specialized training on managing such
operations at the time of job assignment.

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45Bi£     Federal ftegiater / JfeL St. No. 2*1 / Piwlay, December 19, 1986  / Rules and
Ir  nl nflrninine hipUm Hmmmti
including the 8*kt>fact*»aUHr*f Ae Jfwri
            Art Jhey ta» pounding.
exansaat
field JotKtttiea *n*d they tfaanre ABM
trained to a leveLwewad tajntbair'4
completed this teaming and fieU
ex penance «peoifJMl in inaMfraphs
          J and
hatting-completed Ae aeoeeeary
training. A^r-pecaaa wn*tibean
so certified or meets iheir
paragraph pVpyftaa might how
already receivedirom actual,  eJtfKMUSB
for these rsubataaces.
the
more a year, or
  (ii) all employee* wha
respirator ior 30 4ays«r OHW * year, .ar
  (iii) Hfl7MflT nmjilnjtfmo njirrifiH in
paragraph.(D(4)^>f -tfek aeotiaB ixrrile
engaged jnhaaajdau* waste opeiatkuM
covered by thit.sectioa.
  (iv) The employer ^haUdkake -medical
examina tiara -or consultations  avaiiabie
to all employees whs may :h*u« -been
expoaed,in an «meiflfincy*kt nation i«
hazacdau* substances At nmiogntrntiarn
above .the penniwible jiee wouki not be cowered if the
employee hat ast had .an exammatisn
•within the4aat£uc moatha.
  (iv) As seoniB^oflSkble, upaa
notification by aa employee «Jtbar lhat
the emplojieehas d&\®lDped.8igM or
symptooaa lindicatiog .possible
overtxposuie. to .hazardous snbaUuacea
or health hazards
  (v.) At more ireq.uenl times, if die
examining physician .determines .thai jut
increased irequancy of examinaiioD is
medically necessary.
  (3) Content of medical examinations
and consultations, .(i) Medical
examinations required by paragraph
(f)(2) af Ihis f^Mon ghall include. a
medical and workiiatary with special
emphasis on-symptoms related to the
handling of liazaxdous. substances -and
to Fitness far Hnty innlmjing the ability to
wear any required PPE under conditions
(i.e., temperature extremes) that may be
expected at the work site.
  (ii) The .content of medical
examinations or- consultations made
available to employees pursuant to
paragraph ,(X) .shall he .determined bjr the
examining fhysicign
  (4) Examination by a physician tad
COStS. ATI mgHiroJ ovamiriflfri
procedures shall be .performed by or
under the supervision of a licensed
physician, and .shall be provided without
cost .to the«mployae. witheutioee of
pay, and. at a teasonabke lime and .place.
  (5) Information provided to the
physician. The employer shall pnwide
the fallowing information to the
examining physician:
  (i) A copy of this standard and its
appendices,
  (ii) A description of the employee's
duties as they relate to the employee 'j
exposures.
  (iii) The employee's exposure levels or
anticipated exposiue Jewels,
  (tv>) A description of any personal
protective equipment used or to be used,
and
  (v) Information from previous medical
examinations of the employee which is
not readily available to the examining
physician.
  (6) Physician's written opinion. -fil'The
employer shaH -obtain and •famish rhe
employee •with « oepy of a -written
opinion from
contammgthe following:
  (A) The -results of 1he -medical
exammsffron 'arrd -tests.
  (B) The physician's opinion as to
whether the enrpioyee 'has any detected
medical conditions which would place
the employee al increased risk of
material rmjrairmerrt of 1he employee's
hctilth.
  {CJT^ie physician's recommended
limitations upon the employees assigned
work.
  I'D] A statement that the em.plo.yee has
been informed by .the physician of the
results of (he medical examination and
any medical conditions which xequire
further examination .or tceatmenL
  (fi) The written opinion obtained by
the employ erahalljiot £evaal specific
                    unrelated to
  (7) Jtecetdkeeping. M An accurate
recocd of the medical .surveillance
required •Dgnpasagraph ££)(!) ef this
section shall iae -retaiaecL This retard
shall be retained for the period specified
and meat the criteria of 29  CFR 1910^0.
  (ii) The-ieoerd;ie<)uiied in paragraph
(f)(5)(ij«flhM:aection«hall include at
least the following information:
  (A) The name and social security
number of the employee;
  (B) Physicians' written opinions: '
  (C)  Any employes medical complaints
related to exposure to hazardous
substances;
  (D) A copyiof the information which
shall be provided to the examining
physician by -the -employer. w*rh the
exception of -the 'Standard and Us
appendices.
  (Hf) The -employer shall ensure that
this record is retained for the period
specified in 29 CFR IMO^O.
  (g) Engineering controls, -work
practices, ami personal protective
equipment for employee protection — (T)
Engineering controls, work practices
and PPE. (f) 'Engineering controls and
work practices shall be instituted to
reduce and maintain employee exposure
to or below the permissible exposure
limits of those hazardous substances
regulated iiy '29 CFR "Part 1510, Subpart
Z, except to the extent that such
controls and practices are  not feasible,
  Note. — Engineering controls which may he
feasible are the use of .pressurized caba or
control booths on equipment  and/or the use
of remotely operated material. handling
equipment. Work practices  which may&e
feasfbte are removing aUnonessential
employees 'from potential exposure daring
opening of .drums, wetting down dusty

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           Federal  Register / Vol. 51, No.  244 / Friday,  December 19,  1986 /  Rules and Regulations     45667
operations and locating employees upwind of
possible hazards.

  (ii) Whenever engineeringcoatrak
and work practices are not feaaibte. PPE
shall be used to protect employees to
reduce exposure to below established
permissible exposure limits.
  (iii) The employer shall not tmptement
a schedule of employee rotation as a
means of compliance with permissible
exposure limits.
  (2) Engineering controls, work
practices, and personal protective
equipment far-substances not-regulated
in Subpart Z. An appropriate
combination of engineering controls,
work practices, and personal protective
equipment shall be established to
reduce and maintain employee exposure
to or below the established permissible
exposure limit for hazardous substances
not regulated by 29 CFR Part 1910.
Subpart Z and health hazards.
  (3) Personal protective equipment
selection, (i) Personal protective
equipment (PPE) shall be selected and
used which will protect employees from
the hazards and potential hazards they
are likely to encounter as identified
during the site characterization and
analysis.
  (ii) Personal protective equipment
selection shall be based on an
evaluation of the performance
characteristics of the PPE relative to the
requirements and limitations of the site.
the task-specific conditions and
duration, and the hazards and potential
hazards identified at the site.
  (iii) Positive pressure self-contained
breathing apparatus, or positive
pressure air-line respirators equipped
with an escape air supply shall be used
in 1DLH conditions.
  (iv) Totally-encapsulating  chemical
protective suits (Level A protection)
shall be used in conditions where
contact of the skin by the hazardous
substance may result in an 1DLH
situation.
  (v) The level of protection  provided by
PPE selection shall be increased when
additional information or site conditions
show that increased protection is
necessary to reduce  employee  exposure
below established permissible exposure
limits for hazardous  substance and
health hazards. (See Appendix B for
guidance on selecting PPE ensembles.)
  Note.—The level of protection provided
may be decreased when additional
information or site conditions show that
decreased protection will not result in
hazardous exposures to employees.
  (vi) Personal protective equipment
shall be selected and used to meet the
requirements of 29 CFR Part 1910,
Subpart I. and additional requirements
specified in this section.
  (4) Totally-encapsulating chemical
protective suits, (i) Totally-
encapsulating suit materials used for
Level A protection shall protect
employees from the particular hazards
which are identified during site
characterization and analysis.
  (ii) Totally-encapsulating suits shall
be capable of maintaining positive air
pressure. {See Appendix A.)
  (iii) Totally-encapsulating suits shall
be capable of preventing inward test gas
leakage of more than 0.5 percent. (See
Appendix A.)
  (5) Personal protective equipment
(PPE) program. A personal protective
equipment program shall be established
for hazardous waste operations. The
PPE program shall address the following
elements:
  (i) Site hazards,
  (ii) PPE selection.
  (iii) PPE use,
  (iv) Work mission duration.
  (v) PPE maintenance and storage.
  (vi) PPE decontamination.
  (vii) PPE training and proper fitting,
  (viii) PPE donning and doffing
procedures.
  (ix) PPE inspection,
  (x) PPE in-use monitoring,
  (xi) Evaluation  of the effectiveness of
the PPE program,  and
  (xii) Limitations during temperature
extremes.
  (h) Monitoring.  (I) Air monitoring
shall be used to identify and quantify
airborne levels of hazardous substances
in order to determine the appropriate
level of employee protection needed on
site.
  (2) As a first step, air monitoring shall
be conducted to identify any IDLH and
other dangerous situations, such as the
presence of flammable atmospheres,
oxygen-deficient  environments, toxic
levels of airborne contaminants, and
radioactive  materials.
  (3) As a minimum, periodic monitoring
shall be conducted when:
  (i) Work begins on a different portion
of the site.
  (iij Contaminants other than those
previously identified are being handled.
  (iii) A different type of operation is
initiated (e.g., drum opening as opposed
to exploratory well drilling.)
   (iv) Employees are handling leaking
drums or containers or working in areas
with obvious liquid contamination (e.g..
a spill or lagoon.)
   (4) High-risk employees, e.g.. those
closest to the source of contaminant
generation,  shall  receive personal
monitoring sufficient to characterize
employee exposure.
  (i) Informational programs—(1)
General. As part of the safety and
health program required in paragraph
(b)(l) of this section, the employer shall
develop and implement a site safety and
health plan meeting the requirements of'
paragraph (i)(2) of this section for each
hazardous waste operation.
  (2) Site safety and health plan. The
site safety and health plan, which shall
be available on the site for inspection by
employees, their designated
representatives, and OSHA personnel.
shall address the safety and health
hazards of each phase of site operation
and include the requirements  and
procedures for employee protection.
  (i) The site  safety and health plan, as
a minimum, shall address the following:
  (A) Names  of key personnel and
alternates responsible for site safety and
health and appointment  of a site safety
and health officer.
  (B) A safety and health risk analysis
for each site task and operation.
  (C) Employee training assignments.
  (D) Personal protective equipment to
be used by employees for each of the
site tasks and operations being
conducted.
  (E) Medical surveillance requirements.
  (F) Frequency and types of air
monitoring, personnel monitoring, and
environmental sampling techniques and
instrumentation to be used. Methods of
maintenance and calibration of
monitoring and sampling equipment to
be used.
  (C) Site control measures.
  (H) Decontamination procedures.
  (!) Site's standard operating
procedures.
  (J) A contingency plan meeting the
requirements of paragraphs (1)(1) and
(l)(2) of this section for safe and
effective responses to emergencies
including the necessary PPE and other
equipment.
  (K) Confined space entry procedures.
  (ii) Pre-entry briefings shall be held
prior to initiating any site activity and at
such other times as necessary to ensure
that employees are apprised of the site
safety and health plan and that it is
being followed.
  (iii) Inspections shall be conducted by
the site safety and health officer or, in
the absence of that individual, another
individual acting on behalf of the
employer as necessary to determine the
effectiveness of the site safety and
health plan. Any deficiencies in the
effectiveness of the site safety and
health plan shall be corrected by the
employer.
  (j) Handling drums and containers—
(1) General, (i) Drums and containers
used during the clean-up shall meet the

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45668     Federal Register  / Vol. 51, No. 244 / Friday, December 19, 1986  /  Rules and Regulations
appropriate DOT, OSHA, and EPA
regulations for the wastes that they
contain.               :.  .
  (ii) Drums and containers shall be
inspected and their integrity shall be
assured prior to being moved. Drums or
containers that cannot be inspected
before being moved because of
inaccessible storage conditions shall be
moved to an accessible location and
inspected prior to further  handling.
  (iii) Unlabeled drums and containers
shall be considered to contain
hazardous substances and handled
accordingly until the contents are
positively identified and labeled.
  (iv) Site operations shall be organized
to minimize the amount of drum or
container movement.
  (v) Prior to  movement of drums or
containers, all employees exposed to the
transfer operation shall be warned of
the potential hazards associated with
the contents of the drums or containers.
  (vi) U.S. Department of Transportation
specified salvage drums or containers
and suitable quantities of proper
absorbent shall be kept available and
used in areas where spills, leaks, or
ruptures may occur.
  (vii) Where major spills may occur, a
spill containment program shall  be
implemented  to contain and isolate the
entire volume of the hazardous
substance being transferred.
  (viii) Drums and containers that
cannot be moved without rupture,
leakage, or spillage shall be emptied into
a sound container using a device
classified for the material being
transferred.
  (ix) A ground-penetrating system or
other type of detection system or device
shall be used to estimate the  location
and depth of drums or containers.
  (x) Soil or covering material shall be
removed with caution to prevent drum
or container rupture.
  (xi) Fire extinguishing equipment
meeting the requirements of 29 CFR Part
1910. Subpart L shall be on hand and
ready for use to control small fires.
  (2) Opening drums and containers.
The following procedures shall be
followed in areas where drums or
containers are being opened:
  (i) Where an airline respirator system
is used, connections to the bank of air
cylinders shall be protected from
contamination and the entire system
shall be protected from physical
damage.
  (ii) Employees not actually involved in
opening drums or containers shall be
kept a safe distance from the drums or
containers being opened.
  (iii) If employees must work near or
adjacent to drums or containers being
opened, a suitable shield  that does not
interfere with the work operation shall
be placed between the employee and
the drums or containers being opened to
protect the employee in case of
accidental explosion.
  (iv) Controls for drum or container
opening equipment, monitoring
equipment, and fire suppression
equipment shall be located behind the
explosion-resistant barrier.
  (v) Material handling equipment and
hand tools shall be of the type to
prevent sources of ignition.
  (vi) Drums and containers shall be
opened in such a manner that excess
interior pressure will be safely relieved.
If pressure cannot be relieved from a
remote location, appropriate shielding
shall be placed between the employee
and the drums or containers to reduce
the risk of employee injury.
  (vii) Employees shall not stand upon
or work from drums or containers.
  (3) Electrical material handling
equipment Electrical material handling
equipment used to transfer drums and
containers shall:
  (i) Be positioned and operated to
minimize sources of ignition related to
the equipment from igniting vapors
released from ruptured drums or
containers, or
  (ii) Meet the requirements of 29 CFR
1910.307 and be of the appropriate
electrical classification for the materials
being handled.
  (4) Radioactive wastes. Drums and
containers containing radioactive
wastes shall not be handled until such
time as their hazard to employees is
properly assessed.
  (5) Shock sensitive wastes.
  Caution: Shipping of shock sensitive
wastes may be prohibited under U.S.
Department of Transportation regulations.
Employers and their shippers should refer to
49 CFR 173.21 and 173.50.
  As a minimum, the following special
precautions shall be taken when drums
and containers containing or suspected
of containing shock-sensitive wastes are
handled:
  (i) All non-essential  employees shall
be evacuated from the area  of transfer.
  (ii) Material handling equipment shall
be provided with explosive containment
devices or protective shields to protect
equipment operators from exploding
containers.
  (iii) An employee alarm system
capable of being perceived above
surrounding light and noise conditions
shall be used to signal the
commencement and completion of
explosive waste handling activities.
  (iv) Continuous communications (i.e.,
portable radios, hand signals.
telephones, as appropriate) shall be
maintained between the employee-in-
charge of the immediate handling area
and the site safety officer or command
post until such time as the handling
operation is completed. Communication
equipment or methods that could cause
shock sensitive materials to explode
shall not be used.
  (v) Drums and containers under
pressure, as evidenced by bulging or
swelling, shall not be moved until such
time as the cause for excess pressure is
determined and appropriate
containment procedures have been
implemented to protect employees from
explosive relief of the drum.
  (vi) Drums and containers containing
packaged laboratory wastes shall be
considered to contain shock-sensitive or
explosive materials until they have been
characterized..
  (6) Laboratory waste packs. In
addition to the requirements of
paragraph (j)(5) of this section, the
following precautions shall be taken, as
a minimum, in handling laboratory
waste packs (lab packs):
  (i) Lab packs shall be opened only
when necessary  and then only by an
individual knowledgeable in the
inspection, classification, and
segregation of the containers within the
pack according the hazards of the
wastes.
  (ii) If crystalline material is noted on
any container, the contents shall be
handled as a shock-sensitive waste until
the contents are  identified.
  (7) Sampling drums and containers.
Sampling of containers and drums shall
be done in accordance with a sampling
procedure which is part of the site
safety and health plan developed for
and available to  employees and others
at the specific worksite.
  (8) Shipping and transport, (i)  Drums
and containers shall be identified and
classified prior to packaging for
shipment.
  (ii) Drum or container staging  areas
shall be kept to the minimum number
necessary to safely identify and classify
materials and prepare them for
transport.
  (iii) Staging areas shall be provided
with adequate access and egress routes.
  (iv) Bulking of hazardous wastes shall
be permitted only after a thorough
characterization of the materials has
been completed.
  (9) Tank and vault procedures, (i)
Tanks and vaults containing hazardous
substances shall be handled in a manner
similar to that for drums and containers,
taking into consideration the size of the
tank or vault.
  (ii) Appropriate tank or vault entry
procedures meeting paragraph

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          Federal Register / Vol. 51, No. 244 / Friday. December 19,  1986 / Rules and  Regulations     45669
(i)(2)(i)(K) of this section shall be
followed whenever employees must
enter a tank or vault
  (k) Decontamination. (1) A
decontamination procedure shall be
developed, communicated to employees
and implemented before any employees
or equipment may enter areas on site
where potential for exposure to
hazardous substances exists.
  (2) Standard operating procedures
shall be developed to minimize
employee contact with hazardous
substances or with equipment that has
contacted hazardous substances.
  (3) Decontamination shall be
performed in areas  that will minimise
the exposure of uncontaminated
employees or equipment to
contaminated employees or equipment.
  (4) All employees leaving a
contaminated area shall be
appropriately decontaminated; all
clothing and equipment leaving a
contaminated area shall be
appropriately disposed of or
decontaminated.
  (5) Decontamination procedures shall
be monitored by the site safety and
health officer to determine their
effectiveness. When such procedures
are found to be ineffective, appropriate
steps shall be taken to correct any
deficiencies.
  (8) All equipment and solvents used
for decontamination shall be
decontaminated or  disposed of properly.
  (7) Protective clothing and equipment
shall be decontaminated, cleaned.
laundered, maintained or replaced as
needed to maintain their effectiveness.
  (8) Impermeable protective clothing
which contacts or is likely to have
contacted hazardous substances shall
be decontaminated before being
removed by the employee.
  (9) Employees whose non-
impermeable clothing becomes wetted
with hazardous substances shall
immediately remove that clothing and
proceed to shower. The clothing shall be
disposed of or decontaminated before it
is removed from the work zone.
  (10) Unauthorized employees shall not
remove protective clothing or equipment
from change rooms.
  (11) Commercial laundries or cleaning
establishments  that decontaminate
protective clothing  or equipment shall
be informed of the potentially harmful
effects of exposures to hazardous
substances.
  (12) Where the decontamination
procedure indicates a need for showers
and change rooms,  they shall be
provided and meet the requirements of
29 CFR 1910.141.
  (1) Emergency response—(1) General.
(i) An emergency response  plan shall be
developed and implemented to handle
anticipated on-site emergencies prior to
the commencement of hazardous waste
operations. Emergency response
activities to all other hazardous waste
operations shall follow an emergency
response plan meeting the requirements
of this section.
  (ii) Elements of an emergency
response plan. The employer shall
develop an emergency response plan for
on-site and off-site emergencies which
shall address, as a minimum, the
following:
  (A) Pre-emergency planning.
  (6)  Personnel roles, lines of authority,
training, and communication.
  (C)  Emergency recognition and
prevention.
  (D) Safe distances  and places of
refuge.
  (E)  Site security and control.
  (F)  Evacuation routes and
procedures.
  (G) Decontamination.
  (H) Emergency medical treatment
and first aid.
  (I) Emergency alerting and response
procedures.
  (J) Critique of response and follow-
up.
  (K)  PPE and emergency equipment.
  (2) On-site emergency response—(i)
Training. Training for site emergency
response shall be conducted in .
accordance with paragraph (e) of this
section.
  (ii) Procedures for handling site
emergency incidents. (A) In addition to
the elements for the emergency response
plan required in paragraph (l)(l)(ii)
above, the following elements shall be
included for site emergency response
plans:
  (7) Site topography, layout, and
prevailing weather conditions.
  (2} Procedures for reporting incidents
to local, state, and federal governmental
agencies.
  (B)  The site emergency response plan
shall be a separate section of the Site
Safety and Health Plan.
  (C) The site emergency response plan
shall be compatible and integrated with
the disaster, fire and/or emergency
response plans of local, state, and
federal agencies.
  (D) The site emergency response plan
shall  be rehearsed regularly as part of
the overall training program for site
operations.
   (E)  The site emergency response plan
shall  be reviewed periodically and, as
necessary, be amended to keep it
current with new or changing site
conditions or information.
   (F)  An employee alarm system shall
be installed in accordance with 29 CFR
1910.165 to notify employees of an on-
site emergency situation, to stop work
activities if necessary, to lower
background noise in order to speed
communication, and to begin emergency
procedures.
  (G) Based upon the information
available at time of the emergency, the
employer shall evaluate the incident and
the site response capabilities and
proceed with the appropriate steps to
implement the on-site emergency
response plan.
  (3) Off-site emergency response—(i)
Training. Training for handling
emergency responses involving
hazardous substances shall be
conducted on a monthly basis and shall
be at least 24 hours annually. The
training shall include as a minimum
recognition of hazards, selection, care,
and use of personal protective
equipment and safe operating
procedures to be used at the incident
scene.
  (ii) Procedures for handling off-site
emergency incidents. (A) The senior  .
officer responding to an incident
involving a hazardous substance or
waste shall establish an Incident
Command System (ICS). All emergency
responders and their communications
shall be coordinated and controlled
through the individual in charge of the
ICS.
  (B) The individual in charge of the ICS
shall identify, to the extent possible,-all
hazardous substances or conditions
present.
  (C) Based on the hazardous
substances and/or conditions present,
the individual in charge of the ICS shall
implement appropriate emergency
operations, and assure that the personal
protective equipment worn is
appropriate for the hazards to be
encountered. However, personal
protective equipment shall meet, at a
minimum, the criteria contained in  29
CFR 1910.1S6(e) when worn while
performing fire fighting operations
beyond the incipient stage.
  (D) Self-contained breathing
apparatus shall be worn at all times
during emergency operations involving
exposure to hazardous substances  or
health hazards. After October 18,1988
only positive pressure self-contained
respirators shall be used.
  (E) The individual in charge of the ICS
shall limit the number of emergency
response personnel at the emergency
site to those who are actively
performing emergency operations.
However, operations in hazardous areas
shall be'performed using the buddy
system in groups of two or more.
  (F) Back-up personnel shall be
standing by with equipment ready  to

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45670     Federal Register  / Vol. 51. No. 244  /  Friday, December 19.  1986 /  Rules  and  Regulations
provide assistance or rescue. Qualified
basic life support personnel, as a
minimum, shall also be;standing by with
medical equipment and.transportation
capability.
  (G) The individual in charge of the ICS
shall designate a safety, officer, who is
knowledgeable in fire fighting or rescue
operations and hazardous substance
handling procedures, with specific
responsibility to identify and evaluate
hazards and to provide direction with
respect to the safety of operations for
the emergency at hand.
  (H) When activities are judged by the
safety officer to be unsafe and/or to
involve an imminent danger condition,
the safety officer shall have the
authority to alter, suspend, or terminate
those activities. The safety officer shall
immediately inform the individual in
charge of the ICS of any actions taken to
correct these hazards at an emergency
scene.
  (I) After emergency operations have
terminated, the individual in charge of
the ICS shall implement appropriate
decontamination procedures.
  (4) Hazardous materials teams
(HAZMAT). (i) Employees who are
members of the HAZMAT team.
employees designated by the employer
to plug, patch or otherwise temporarily
control or stop leaks from containers
which hold hazardous  substances or
health hazards shall be given training in
accordance with paragraph (1)(3) of this
section that includes the care and use of
chemical protective clothing and
procedures to be followed when
working on leaking drums, containers.
tanks, or bulk transport vehicles.
  (ii)  Members of HAZMAT teams shall
receive an annual physical examination
by a licensed physician and be provided
medical surveillance as required in
paragraph (f) of this section.
  (iii) Personal protective clothing and
equipment to be used by HAZMAT team
members shall meet the requirements of
paragraph (g) of this section.
  (iv) Approved self-contained
compressed air breathing apparatus may
be used with approved cylinders from
other approved self-contained
compressed air breathing apparatus
provided that such cylinders are of the
same capacity and pressure rating. All
compressed air cylinders used with self-
contained breathing apparatus shall
meet  U.S. Department of Transportation
and National Institute for Occupational
Safety and Health criteria.
  (5) Post-emergency response.
operations. Upon completion of the
emergency response, if it is determined
that it is necessary to remove hazardous
substances, health hazards and
materials contaminated with them such
as contaminated soil or other elements
of the natural environment, then such
operations shall meet all the
requirements of paragraphs (b) through
(n) of this section.
  (m) Illumination. Work areas shall be
lighted to not less than the minimum
illumination intensities listed in Table
H-102.1 while any work i» in progress:

   TABLE H-102.1.—MINIMUM ILLUMINATION
       INTENSITIES IN FOOT-CANDLES
                                   TABLE H-102.2.—TOILET FACILITIES—
                                              Continued
Fool-candle*
5	
3	
10.......
30..
                  Area or operation*
General site areas.
Excavation and waste areas,  accessways.
 active storage area*, loading platform*, re-
 fueling, and field maintenance area*.
Indoors: warehouses, corridors, hallway*, and
 exhwavs.
Tunnel*, snarls,  and general  underground
 work area*: (Exception: minimum  of 10
 foot-candle* is requred at tunnel and shaft
 heading during drilling, mucking, and scal-
 ing. Bureau of Mines approved cap light*
 snail be acceptable for use in me tunnel
 heading,
General shop* (e.g., mechanical  and  electri-
 cal equipment rooms, active  storerooms.
 barracks or living quarters, locker or dress-
 ing room*, dining areas, and Indoor toilets
 and workroom*.
First aid stations, tffirmanes, and offices.
  (n) Sanitation at temporary
workplaces—(1) Potable water, (i) An
adequate supply of potable water shall
be provided on the site.
  (ii) Portable containers used to
dispense drinking water shall be
capable of being tightly closed, and
equipped with a tap. Water shall not be
dipped from containers.
  (iii) Any container used to distribute
drinking water shall be clearly marked
as to the nature of its contents and not
used for any other purpose.
  (iv) Where single service cups (to be
used but once) are supplied, both a  '
sanitary container for the unused cups
and a receptacle for disposing of the
used cups shall be provided.
  (2) Nonpotable water,  (i) Outlets for
nonpotable water, such as water for
industrial or firefighting purposes shall
be identified to indicate clearly that the
water is unsafe and is not to be used for
drinking, washing, or cooking purposes;
  (ii) There shall be no cross-
connection, open or potential, between a
system furnishing potable water and a
system furnishing nonpotable water.
  (3) Toilets facilities, (i) Toilets shall
be provided for employees according to
Table H-102.2.

    TABLE H-102.2.—TOILET FACILITIES
Number of employee*
More than 200

Minimum number ot laoMn*

50 employees.
  Number of employee*    Minimum number of facilities
20 or fewer	
More than 20, fewer than
  200V
        One.
        One toilet seat and 1 unnal per
          40 employees.
  (ii) Under temporary field conditions,
provisions shall be made to assure not
less than one toilet facility is available.
  (iii) Hazardous waste sites, not
provided with a sanitary sewer, shall be
provided with the following toilet
facilities unless prohibited by local
codes:
  (A) Privies;
  (B) Chemical toilets;
  (C) Recirculating toilets; or
  (D) Combustion toilets.
  (iv) The requirements of this
paragraph for sanitation facilities shall
not apply to mobile crews having
transportation readily available to
nearby toilet facilities.
  (4) Food handling. All employees' food
service facilities and operations shall
meet the applicable laws,  ordinances,
and regulations of the jurisdictions in
which they are located.
  (5) Temporary sleeping  quarters.
When temporary sleeping quarters are
provided, they shall  be heated.
ventilated, and lighted.
  (6) Washing facilities. The employer
shall provide adequate washing
facilities for employees engaged in
operations where hazardous substances
may be harmful to employees. Such
facilities shall be in near proximity to
the worksite, within controlled access
work zones  and shall be so equipped as
to enable employees to remove
hazardous substances.
  (o) Certain Operations Conducted
under the Resource Conservation and
Recovery Act of 1976 (RCRA).
Employers conducting operations
specified in  paragraph (g)(2)(iii) of this
section shall:
  (1) Implement a hazard
communication program meeting the
requirements of 29 CFR 1910.1200;
  (2) Implement a medical surveillance
program meeting the requirements of
paragraph (fj of this  section;
  (3) Develop and implement a safety
and health program  for employees
involved in hazardous waste operations.
The program shall be designed to
identify, evaluate and control safety and
health hazards and provide for
emergency response to their facilities for
the purpose of employee protection;
  (4) Develop and implement a
decontamination procedure in
accordance  with  paragraph (k) of this
section, and

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            Federal Register / Vol.  51.  No.  244 /  Friday.  December 19.  1986  /  Rules and Regulations     45671
  (5) Develop and implement a training
program for employees involved with
hazardous waste operations to enable
each employee to perform their assigned
duties and functibnftiift-a safe and
healthfuT manner so asTiot to endanger
themselves or other-employees. The
initial training shall be for 24 hours and
refresher training shall be for eight
hours annually.
  (p) Start-up dates—(1) Training and
medical provisions. Initial training and
medical surveillance as specified by
paragraph (e) and (f) of this section shall
be commenced on the effective date of
this standard, and be fully implemented
as soon as-possible but  no later than
March 16,1987. Employees may
continue in their work assignments until
March 16,1987 though training and
medical examinations have not been
completed so long as all feasible
training and examinations have been
completed.
  (2) Safety and health program. The
employer shall develop and implement a
safety and health program as required
by paragraph (b)(l) of this section as
soon as is feasible and have it
completed and implemented no later
than March 16,1987.
  (3) Engineering controls, work
practices, and personal protective
equipment, (ij The engineering controls,
work practices and  personal protective
equipment required by paragraph (g)(2)
of this section  shall be implemented as
soon as feasible and implementation
shall be completed no later than March
16.1987.
  (ii) The engineering controls, work
practices and personal protective
equipment required by paragraph (g)(l)
of this section  are existing requirements
of other OSHA standards and continues
to be required  from the effective date of
this standard.
  (4) Site safety and health plan. The
site safety and health plan required by
paragraph (i)(2) of this section shall be
completed as soon as feasible but no
later than  February 16,1987.
  (5) Certain operations conducted
under RCRA. The requirements
specified by paragraph (o) of this section
shall be instituted by March 16,1987.
  (6) Other requirements. Requirements
of this standard which- do not have a
separate start-up date and have not
been required by other OSHA standards
shall be carried out from the effective
date of this standard.
   (7) New operations. Operations
covered by this section which are
started after March 16,1987. shall be in
compliance with this section from the
start of their operation.
. Appendices to } 1910.120—Hazardous Waste
 Opera dons and Emergency Response
 _. Notev—TVie following appendices serve as
 non-mandatory guidelines to assist
 employees and employers in comply ing with
 the appropriate requirement of this section.

 Appendix A—Personal Protective Equipment
 Test Method*
   This appendix sets forth the non-
 mandatory examples of tests which may be
 used to evaluate compliance with paragraphs
 I9l0.120(g)(4) (ii) and (iii). Other tests and
 other challenge agents may be used to
 evaluate compliance.

 A. Fully-Encapsulated Suit Pressure Test
 1.0—Scope
   1.1  This practice measures the ability of a
 gas tight totally-encapsulating chemical
 protective suit material, seams, and closures
 to maintain a fixed positive pressure. The
 results of this practice  allow the gas tight
 integrity of a total-encapsulating  chemical
 protective suit to be evaluated.
   1.2  Resistance of the suit materials to
 permeation, penetration, and degradation by
 specific hazardous substances is  not
 determined by this test method.
 2.0—Description of Terms
   2.1  Totally-encapsulated chemical
 protective suit (TECP suit)—A full body
 garment which is constructed of protective
 clothing materials: covers the wearer's torso,
 head arms., and legs: may cover the wearer's
 hands-and feet with tightly attached gloves
 and boots: completely  encloses the wearer by
 itself or In combination with the wearer's-
 respiratory equipment, gloves, and boots.
   2.2  Protective clothing material—Any
 material or combination of materials used in
 an item of clothing for  the purpose of
 isolating parts of the body from direct contact
 with a potentially  hazardous liquid or
 gaseous chemicals.
   2.3  "Gas tight"—for the purpose of this
 practice the limited flow of a gas under
 pressure from the  inside of a TECP suit to
 atmosphere at a prescribed pressure and time
 interval.
   2.4  "Shall"—This term indicates a
 mandatory requirement.
   2.5  "Should"—This term indicates a
 recommendation or that which is advised but
 not required.
   2.ft  "May"—This term is used to state a
 permissive use or an alternative method to a
 specific requirement.
 3.0—Summary of Practice
   3.1  The TECP suit is visually  inspected
 and modified for the test. The test apparatus
 is attached to the  suit to permit inflation to
 the pre-test suit expansion pressure for
 removal of suit wrinkles and creases. The
 pressure is lowered to  the test pressure and
 monitored for three minutes. If the pressure
 drop is excessive, the TECP suit fails the tests
 and is removed from service. After leak
 location and repair the test is repeated.
 4.0—Required Supplies
   4.1  Source of compressed air.
   4.2  Test apparatus  for suit testing
 including a pressure measurement device
with a sensitivity of at least Yt inch water
gauge.
  4.3  Vent valve closure plugs or sealing
tape.
  4.4  Soapy water solution and soft brush.
  4.S  Slop watch or appropriate timing
device.
5.0—Safety Precautions
  5.1  Care shall be taken to provide the
correct pressure safety devices required for
the source of compressed air used.
6.0—Test Procedure
  6.1  Prior to each test the tester shall
perform a visual inspection of the suit. Check
the suit for seam integrity by visually
examining the seams and gently pulling on
the seams. Ensure that all air supply lines,
fittings, visor, zippers, and valves are secure
and show no signs of deterioration.
  6.1.1  Seal off the vent valves along with
any other normal inlet or exhaust points
(such as umbilical air line fittings or face
piece opening) with tape or other appropriate
means (caps, plugs,  fixture, etc.). Care should
be exercised in the sealing process not to
damage any of the suit components.
  8.1.2  Close all closure assemblies.
  6.1.3  Prepare the suit for inflation by
providing an improvised connection point or
the suit for connecting an airline. Attach the
pressure test apparatus to the suit to permit
suit inflation from a compressed air source
equipped with a pressure indicating regulator.
The leak  tightness of the pressure test
apparatus should be tested before and after
each test  by closing off the end of the tubing
attached  to the suit  and assuring a pressure
of three inches water gauge for three minutes
can be maintained. If a component is
removed  for the test, that component shall be
replaced  and a second test conducted  with
another component  removed to permit a
complete tests of the ensemble.
  6.1.4  The pre-test expansion pressure (A)
and the suit test pressure (B) shall be
supplied  by the suit manufacturer but in no
case shall they be less than; A=3 Inches
water gauge and B=2 inches water gauge.
The ending suit pressure (C) shall be no less
than 80%  (%) of the test pressure (B): i.e., the
pressure drop shall not exceed 20% (Ms) of the
test pressure (B).
  6.1.5  Inflate the suit until the pressure
inside is equal to pressure "A", the pre-test
expansion suit pressure. Allow at least one
minute to fill out the wrinkles in the suit
Release sufficient air to reduce the sui