RCRA NEW ATTORNEY TRAINING
        OFFICE  OF  ENFORCEMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
    Radiason  Park Terrace Hotel
          Washington, D.C.
           March 15, 1991

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                  Table  of  Contents  - continued
XIV.  MISCELLANEOUS MEMORANDA ANALYZING KEY DECISIONS
          -U.S. et al.  v.  Production Plated Plastics. Inc. et al.
          -U.S. v. Environmental Waste Control.  Inc.(7th
          Cir. 1990)
          -U.S. v. Environmental Waste Control.  Inc.  (N.D. Ind.
          1989)
          -U.S. v. Vineland  Chemical Co..  Inc..  et al.
          -United States v.  ILCO. et al.
          -American Mining Congress.  (D.C. Cir.  1990) (favorable
          decision regarding EPA's  authority  to  regulate
          recyclable metal smelting residues  as  "solid wastes"
          under RCRA)
          -U.S. v. Clow.  (S.D. Ohio 1988)  (favorable ruling on
          Agency's interpretation of RCRA  Section 3008(h))
          -Chemical Waste  Management, et al.  v.  EPA.  (D.C. Cir
          1989) (favorable decision regarding ability of  EPA to
          regulate wastes  disposed  prior to being listed  as
          hazardous and wastes found in contaminated media)
          -Ethvl Corp.  v.  EPA.  (D.C. Cir.  1990)  (court decision
          on RCRA listing  of wastes from the  production of
          methyl bromide)

XV.   OE AND OGC RCRA HEADQUARTERS  CONTACTS

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               o  Toxicity Characteristic


9:45-10:05  RCRA IN A NUTSHELL: DO YOU  CARRIE WEHLING
            HAVE A VIOLATION?
               o  Interim status vs.  permits
               o  Standards for TSDF's
               o  Minimum technology requirements
               o  Standards for generators and transporters

10:05-10:30 RCRA ENFORCEMENT            MARY COE
            AUTHORITIES: TOOLS OF THE   Chief of Pa., Md. Section
            TRADE                       U.S. EPA
                                        Region III
               o  Enforcement authorities
                    - RCRA §3007 and CERCLA §104 data gathering
                      authorities
                    - §3008(a)
                    - §3008(e) knowing endangerment
               o  Civil vs. criminal
               o  Judicial vs. administrative
               o  Key policies
                    - Enforcement Response Policy
                    - Penalty Policy

10:30-10:45 INSTRUCTIONS FOR CASE       MARK PEYCKE
            STUDY EXERCISE ON
            IDENTIFICATION OF WASTES

10:45-11:00 BREAK

11:00-11:45 CASE STUDY EXERCISE ON IDENTIFICATION OF HAZARDOUS
            WASTES
     (To be conducted in three break out rooms organized in
      groups of six and facilitated by Regional and HQ attorneys)

11:45-12:15 STATE/FEDERAL ENFORCEMENT   DAVID A. NIELSEN
            FRAMEWORK: WHICH LAW TO     Attorney-Advisor
            APPLY?                      OE-RCRA
                                        U.S. EPA
                                        Washington, D.C.
                                        TOM C. CLARK
                                        Trial Attorney,
                                        Environmental Enforcement
                                        Section, DOJ
                                        Washington, D.C.
               o State authorization procedures
                    - More stringent vs. broader in scope
                    - HSWA requirements and prohibitions
                    - Overlapping federal/state requirements
                    - Program withdrawal/reversion
               o Federal enforcement in authorized states
                    - EPA overfiling authority
                    - Which.regulations are federally

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                     -  Congressional mandate  in HSWA
                     -  EPA's  high  priority emphasis on LDR
                       requirements
               o Types of  LDR Violations
                     -  BDAT-based  treatment standards
                     -  Storage prohibition
                     -  Dilution  prohibition
                     -  Waste  analysis  and record keeping
               o Enforcement Litigation Issues
                     -  Demonstrating what wastes are hazardous
                     -  Identifying the type of prohibition that
                       applies
                     -  Wastewater  treatment example
                     -  Defining  land disposal units
                     -  Impact of state enforcement efforts
                     -  Alternative compliance options: variances,
                       extensions, and exemptions
               o Impact of LDRs on Cleanups
                     -  Prospective nature of  LDR program
                     -  Determining when LDR requirements  are
                       legally applicable
                     -  CERCLA waivers

3:30-4:15  CASE STUDY  EXERCISE:         ALICIA HOEGH
           DEVELOPING  ENFORCEMENT
           RESPONSE
           REVIEW OF MODEL ANSWER
4:15-4:30  CLOSING REMARKS

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JURISDICTION*!, ISSUES:

WHEN DOES RCRA APPLY?
                  Waste Outline Courtesy  of
                  Mary Coe and Region  III

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                                2

          A discarded material is any material which is:

               • Abandoned (as described in 40 C.F.R. §261.2(b));
                 or

               • Recycled (as described in 40 C.F.R. §261.2 (en?
                 or

               • Inherently Waste-like (as described in 40 C.F.R.
                 §261.2(d))

                 (40 C.F.R.  §261.2(a)(2))


          a. Materials which are solid waste because they
             are "abandoned" (40 C.F.R. §261.2(b))

          A material is a solid waste if it is abandoned in any
of the following ways:

               • it is disposed of
               • it is burned or incinerated
               • it is accumulated, stored or treated
                 (but not recycled) before or in lieu of being
                 abandoned by being disposed of, burned or
                 incinerated.

          b. Materials which are solid wastes because they
             are "recycled" (40 C.F.R. 5261.2(0)

     Whether a particular material is a solid waste because it is
recycled depends on two factors:

               • the nature of the material
                           and
               • the manner in which it is recycled.

     The following five types of materials may be solid wastes
when recycled in specified ways  (40 C.F.R. §261.2(c)):

               • spent materials - materials which have been used
                 and can no longer serve their original purpose
                 without reprocessing.

               • sludges - any solid, semi-solid or liquid waste
                 generated by a municipal, commercial or
                 industrial wastewater treatment plant, water
                 supply treatment plant or air pollution control
                 facility exclusive of the treated effluent from
                 a wastewater treatment plant.

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                                                1
                                                     an,

Spent Materials
Sludges (listed in 40 CPR Part 261.31
or ,32)
Sludges exhibiting a characteristic of
hazardous waste
By-products (listed in 40 CI-H Part
261.31 or 261.32)
By-products exhibiting a characteristic
of hazardous waste
Commercial chemical products listed
iii 40 CPR §261. 33
Scrap Metal
Use
Constituting
Disposal
(26l.2(c)(D)
*
*

*
*
*

*

*
l-nciyy
Recovery/
lucl
(26l.2(c)(3))
*
*

*
*
•

$

*
Uecliiniauon
(26l.2(c)(3))
*
*


*




*
S|ieciil;ilive
ActumulalMMi
(261.2(0(4))
*
*


*
•



*
Note - 'Ilic tcnns "spent materials," "sludges," "by-products," and "scrap niclal" arc dclined
in §261.1.

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          c. Materials which are solid vaste because they are
             "inherently vaste-liXe" (40 C.P.R. S261.2(d)l

     The following materials are solid wastes if they are
recycled in any manner:

                    - F020, F021 (unless used as an ingredient to
                      make a product at the site of generation),
                      F022, F023, F026 and F028.

                    - other wastes added by the Administrator
                      pursuant to specified criteria.

ENFORCEMENT NOTE;  Under 40 C.F.R.  §261.2(f), Respondents in
actions to enforce RCRA Subtitle C who raise a claim that a
certain material is not a solid waste,  or is conditionally exempt
from regulation (see 40 C.F.R. §261.5), have the burden of
demonstrating:

                    (1) that there is a known market or
                        disposition for the material, and

                    (2) that the material meets the terms of the
                        exclusion or exemption.

In so doing, the Respondent must provide appropriate
documentation to demonstrate that the material is not a waste or
is conditionally exempt.  In addition,  owners/operators who claim
they are recycling must show that they have the necessary
equipment to do so.


          3. Exclusions from the definition of "solid waste"
             (RCRA Section 1004(27), 42 O.8.C. 56903(27)),
             and 40 C.F.R. S261.4(aH	

     Section 1004(27)  of RCRA specifically excludes from the
definition of solid waste:

               solid or dissolved material in
               domestic sewage, or solid or
               dissolved materials in irrigation
               return flows or industrial
               discharges which are point sources
               subject to permits under section
               [402 of the Clean Water Act], or
               source, special nuclear, or
               byproduct material as defined by
               the Atomic Energy Act of 1954, as
               amended ....

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                       flame  combustion  (e.g.. boilers, industrial
                       furnaces,  incinerators);

                     -  the  secondary materials are never
                       accumulated  in such tanks for over 12
                       months without being reclaimed;

                     -  the  reclaimed material  is not used to
                       produce a  fuel, or used to produce
                       products that are used  in a manner
                       constituting disposal.


4.  Variances from the definition  of "solid vaste"  (40 C.F.R.
    5260.30..31,.32..33)

     The Regional Administrator  may determine on a case-by-case
basis that the  following recycled  materials are not solid wastes
(40 C.F.R. §260.30):

          •  materials  accumulated  speculatively without
             sufficient amounts being recycled

          •  materials  reclaimed  then reused within the
             primary  production process  in which they
             were generated

          •  reclaimed  materials  which must be further
             reclaimed  before they  are completely
             recovered.

     The standards and criteria  for granting  a variance under 40
C.F.R. §260.30  are set forth in  40 C.F.R. §260.31.

     The procedures  for issuance of such a variance are set  forth
in 40 C.F.R. §260.33.

     40 C.F.R.  §260.32 authorizes  the Regional Administrator to
grant case-by-case variances treating certain enclosed devices
using control flame  combustion as  "boilers".

     DON'T DESPAIR!  A "DECISION TREE"  WHICH  MAY BE USED TO
DETERMINE IF A  PARTICULAR  MATERIAL IS A SOLID WASTE IS INCLUDED
IN THIS OUTLINE AS ATTACHMENT 1.

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r   qualify as a hazardous waste (assuming it is not excluded
    :r 40 C.F.R. §261.4(b)):

          • The solid waste exhibits one (or more) of
          the characteristics of hazardous vaste
          described in 40 C.F.R. §261.21-.24
          ("characteristic hazardous vaste")

          • The solid vaste is specifically listed in
          40 C.F.R. §261.31, .32 or .33 ("listed
          hazardous vaste")

     a. Characteristic hazardous vastes (40 C.F.R. §261.20-.24)

     A solid vaste is a hazardous vaste if it exhibits one or
more of the following four characteristics:

          • Ignitability (EPA Hazardous Waste Number
          D001), using the test(s)  described in 40
          C.F.R. §261.21 fe.g.,  liquids with low
          flash points).

          • Corrosivity  (EPA Hazardous Waste Number
          D002), using the test(s)  described in 40
          C.F.R. §261.22.  Includes aqueous wastes
          with low (£2) or high (>12.5) ph.

          • Reactivity (EPA Hazardous Waste Number
          0003), using the test described in 40
          C.F.R. §261.23 (e.g..  explosives, or wastes
          with high cyanide or sulfide content).

          • Toxicity (EPA Hazardous Waste Numbers D004
          - D043), using the test(s) described in 55
          Fed. Reg. 11862-75 (March 29, 1990)(codified
          at 40 C.F.R. §261.24 and Part 261, App.II).
          These are wastes which leach certain metals
          or organics above specified concentrations.
          The maximum concentrations of contaminants
          for the Toxicity Characteristic are listed in
          Table 2 of this Outline.   (NOTE:  The
          "Toxicity" Characteristic was promulgated on
          March 29, 1990, and replaces the "EP
          Toxicity" Characteristic, previously set
          forth at 40 C.F.R. §261.24, effective
          September 25, 1990.  (Compliance dates:
          September 25, 1990 for "large quantity
          generators"; March 29, 1991 for "small
          quantity generators".   On October 5, 1990,
          (55 Fed Reg. 46829), EPA extended the
          compliance date to January 25, 1991, for
          petroleum refining facilities, marketing

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                                10

           terminals  and  bulk plants  engaged  in certain
           hydrocarbon recovery and remediation
           activities using underground  injection wells
           or  infiltration  galleries.

     b. Listed  hazardous wastes  (40  C.F.R.  §261.30-.33)

           Listed  hazardous wastes are industrial waste  streams
and discarded commercial chemical products which typically:

           • exhibit  one  (or more) hazardous  waste
            characteristic and/or

           • contain  one  (or more) of  the  "hazardous
            constituents"  listed in  40  C.F.R. Part 261, App.
            VIII.

     There are  three categories of listed hazardous wastes:

           • Hazardous wastes from non-specific sources
            (40 C.F.R. §261.31)  (EPA  Hazardous Waste Numbers
            F001  - et seq.  ).   These  are  commonly referred to
            as  "F-wastes".

           • Hazardous wastes from specific sources  (40
            C.F.R. §261.32)  (EPA Hazardous Waste
            Numbers  K001 et sea.).   These are commonly
            referred to  a  "K-wastes".

           • Discarded commercial chemical products,
            off-spec materials, containers,  spill
            residues (40 C.F.R. §261.33)

                -  Acutely hazardous wastes (EPA
                  Hazardous Waste Numbers  P001 et
                  seq.).  These are commonly
                  referred  to as "P-wastes".

                -  Toxic wastes (EPA Hazardous Waste
                  Numbers U001 et seq.)  These are
                  commonly  referred to as  "U-
                  wastes".

     c. The "mixture rule" (40 C.F.R. S261.3(a)(2)fiiil and  (iv)

     Under the  so-called "mixture rule*1,  if  a hazardous waste is
mixed with a  solid waste,  the resulting mixture is generally also
a hazardous waste.   Exceptions:

           • It  is a  mixture of a solid  waste and a
            characteristic hazardous  waate-,  and the mixture no

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                                12
3. When does a solid waste cease to be a hazardous waste?
   (40 C.F.R. §261.3(d))

     A solid waste ceases to be a hazardous waste when it meets
the following criteria:

          • It no longer exhibits any cbaracteristic of
            hazardous waste; and

          • In the case of a listed hazardous waste, a
            waste which contains a listed waste, or a
            waste which is "derived-from" a listed
            hazardous waste, it also has been excluded
            by rulemafcing under 40 C.F.R. §260.20 and
            .22 ("delisting").

         Delistino (40 C.P.R. §260.20 and .22)

          EPA recognized that its procedures for listing
Y   rdous wastes might not be appropriate in all cases.  To
I   ide for these cases,  EPA created a process called "delisting11
unaer which any person could petition EPA to exclude a listed
waste generated at a specific facility from regulation under RCRA
Subtitle C.  The "delisting" procedures are set forth in 40
C.F.R. §260.20 and .22.  Under these procedures, the petitioner
must demonstrate that the waste produced at the facility does not
meet any of the criteria under which the waste was listed as
hazardous (typically because of facility-specific variations in
raw materials, processes or other factors) and that the waste
does not exhibit any hazardous waste characteristic (40 C.F.R.
§260.22(a)(1), (c)(l), (d)i(3) and (e)(3)).  Based on a complete
petition, EPA must determine, where it has a reasonable basis to
believe that factors (including additional constituents) other
than those for which the waste was listed could cause the waste
to be a hazardous waste,  that such factors do not warrant
retaining the waste as a hazardous waste.  Where the waste is a
mixture of solid waste and one or more listed hazardous wastes,
or is "derived from" one or more hazardous wastes, the
demonstration must be made with respect to the waste mixture as a
whole; analyses must be conducted not only for those constituents
for which the listed waste contained in the mixtures was listed
as hazardous, but also for factors (including additional
constituents) that could cause the waste mixture to be a
h-~ardous waste.

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                                14


           • ash and other waste from fossil fuel
            combustion;

           • drilling  fluids, produce waters and other
            wastes associated with the exploration,
            development or production of crude oil,
            natural gas or geothennal energy;

           • certain chromium bearing vastes from the
            leather tanning industry;

           • solid wastes from the extraction,
            beneficiation and processing of ores and
            minerals  ("Bevill vastes");

           • cement kiln dust;

           • discarded wood that has been treated with
            arsenic.

     5. Miscellaneous Exemptions  from Regulation as Hazardous
        Wastes

           • Raw product storage tank exemption (40
            C.F.R. §261.4(c))

           • Samples (40 C.F.R. §261.4(d))

           • Treatability Study Samples  (40 C.F.R.
            §261.4(e))

           • Samples Undergoing Treatability Studies at
            Laboratories and testing Facilities  (40
            C.F.R. §261.4(f))

           • Certain Hazardous Waste that are Recycled
            (40 C.F.R. §261.6 and 40 C.F.R. Part 266).
            Hazardous wastes that are recycled are
            known as  "recyclable materials"  (40 C.F.R.
            §261.6(a)(1)).

     The following recyclable materials are regulated under 40
C.F.R. Part 266, Subparts C through G and 40 C.F.R. Parts 270 and
124:

           • recyclable materials used in a manner
            constituting disposal  (40 C.F.R. Part 266,
            Subpart C)

           • hazardous wastes burned for energy recovery
            in boilers and industrial furnaces not

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                                16

          6. Hazardous Waste Generated by Conditionally Exempt
             Small Quantity Generators (40 C.F.R. §261.5)

     A generator is a "conditionally exempt small quantity
generator11 for a particular calendar month if he generates no
more than 100 kilograms of hazardous waste in that month.   A
conditionally exempt small quantity generator*a wastes are not
subject to regulation under RCRA Subtitle C except as follows:

          • if acute hazardous wastes generated during
            a calendar month exceed 1 kilogram, all
            such acute hazardous wastes are subject
            to full regulation under RCRA Subtitle C

          • If residues or contaminated soils, waste or
            other debris resulting from cleanup of a
            spill of any acute hazardous waste during a
            calendar month exceed 100 kilograms, all
            such residues, etc. are subject to full
            regulation under RCRA Subtitle C.

          • In order for hazardous wastes generated in
            a calendar month in amounts less than or
            equal to 1 kilogram of acute hazardous
            waste or 100 kilograms of acute hazardous
            waste residues or 100 kilograms of ••non-
            acute11 hazardous waste to be excluded from
            full regulation under RCRA Subtitle C, the
            generator must:

               - comply with 40 C.F.R. §262.11
                 (hazardous waste determination)

               - accumulate on-site at any time no
                 more than 1 kg. of acute
                 hazardous wastes or 100 kg. of
                 acute hazardous waste residues or
                 1000 kg. of non-acute hazardous
                 waste.  (See 40 C.F.R. §262.34 to
                 determine when the time period
                 for accumulation begins.)(If a
                 conditionally exempt small
                 quantity generator accumulates
                 greater than 1 kg. of acute
                 hazardous waste, or 100 kg. of
                 acute hazardous waste residues,
                 all of such accumulated wastes
                 are subject to regulation under
                 40 C.F.R. Parts 262-266, 268 and
                 Parts 270 and 174, as well as the
                 notification requirements of RCRA
                 §3010.  If a conditionally exempt

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                                  All Materials
                                  Potentially
                                  Solid Wastes
rhe material
Ls  not a
Solid Waste
YES
Is the material excluded under 40 CFR §261.4(a)
because it is:

1.  Domestic sewage or is mixed with domestic sewage
    in a POTW System.
2.  An industrial point source discharge under 402 of
    the CWA (NPDES)
3.  Irrigation return flow
4.  Atomic energy commission source, special nuclear
    or by-product material
5.  In-situ mining waste
6.  Pulping liquors being reclaimed
7.  Spent sulfuric acid being reclaimed
8.  Secondary material reclaimed and returned to the
    original production process in which generated via
    a closed system
                                           NO
           YES
7he material
.s  a RCRA
;olid Waste
;GO to box
 A)
           YES
    Is the material discarded by being abandoned?
    Abandoned is defined as:

    1.  Disposed of
    2.  Burned or incinerated
    3.  Accumulated, stored or treated before or in lieu
        of being disposed of, burned or incinerated
                             NO
    Is the material inherently waste-like as defined in
    40 CFR §261.2(d)?  These are the following EPA Haz.
    wastes:  F020, F021, F022, F023, F026, F028
                                           NO
rhe material
Ls not a
Solid Waste
YES
Is the material recycled by being:

1.  Used/reused as an ingredient in an industrial
    process to make a product
2.  Used/reused as an effective substitute for a
    commercial product
3.  Returned to the original process where it was
    generated without first being reclaimed
                                           NO

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       The material
       La a RCRA
       Jolid wast*
       temporarily
       exeapt froa
       regulation
YES
                             7 NO

Is it a scrap metal that is being re-
claimed?
                                   NO
                         RCRA defines all secondary aaterials
                         being recycled as being in one of the
                         above five catagories.  (see above)
RCRA defines all recycling
operations of concern as
being in one of the above
four catagories (see above
        NO
                                                                        NO
           Is the material being accumulated
           speculatively?  Speculative accu-
           mulation means the material is
           being accumulated prior to recy-
           cling unless:  (1) a Xnovn or
           proven technology is available to
           recycle the material and it can
           feasibly be recycled and (2) 75%
           is recycled during the calander
           year.
                                                                       YES
Is the material being
accumulated speculatively
a commercial chemical
product listed in 40 CFR
§261.33?
            YES
        NO
           Is the material being accumulated
           speculatively a spent material, a
           listed sludge or by-product, or a
           characteristic sludge or by-
           product?
                                   YES
   The material is not
   a RCRA Solid Waste
                          The material is a
                            RCRA Solid Waste
                          (Go to Box A)

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            YES
Is it a mixture of a solid waste and a
hazardous waste listed in Subpart D because
it exhibits one or more of the charac-
teristics identified in 40 CFR Part 261?
                        YES
            NO
Is it a mixture of a solid waste and
minimis concentrations of certain hazardous
wastes listed in Subpart D of 40 CFR Part
261, the mixture consisting of a wastewater
whose discharge is subject to regulation
under section 402 or 307(b) of the CWA?
These specifically exempted mixtures are
found in 40 CFR $261.3(a)(2)(iv)(A-E)
                        YES
            NO
Is it waste pickle liquor sludge generated
by lime stabilization of spent picxle liquor
from the iron and steel industry?
                                                       YES
            NO
Has the waste or mixture been excluded
through the delisting process?
                                                       YES
            NO
The waste is a Hazardous
Waste subject to regulation
under RCRA Subtitle C
YES
Does the waste exhibit any
characteristic specified in
Subpart C of 40 CFR Part 261?
These are:
1.  Ignitability
2.  Corrosivity
3.  Reactivity
4.  Toxicity
                                                    NO
                                       The waste is a Solid Waste sub
                                       ject to regulation under RCRA
                                       Subtitle D

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                                          or  uenerax  counsel
                                   U.S.  EPA
                                   Washington,  D.C.
                                   202-382-7720
RCRA Toxicity Characteristic (TC)
I.  Backcrround on the Toxicity Characrteristic

     A.  Where the TC fits into the RCRA scheme.

     The TC is one of four characteristics which  define a
hazardous waste:   ignitability, corrosivity,  reactivity,  and
toxicity.  See 40 CFR Part 261, Subpart C.

     B.  What the TC is.

          1.   The TC defines a solid waste as 'hazardous' for
purposes of hazardous waste regulation if the levels of certain
constituents in the waste exceed regulatory levels set forth in
40 C.F.R. 261.24.

          2.   Specifically, the TC attempts to define what level
of hazardous constituents would be harmful to a person drinking
groundwater contaminated  by leachate from an unregulated
landfill.  It assumes that there will be some dilution and
attenuation of the contaminants as the plume moves thru the
groundwater from the landfill to a drinking water well.

               a.  the TC has two components:

                    i. a leach test (found in 40 C.F.R.  Part
                         261, appendix 2)

                    ii.  regulatory levels (found at 40 C.F.R.
                         261.24)  which are generally 100 times
                         the Maximum Concentration Level (MCL)
                         set under the Safe Drinking Water Act.
                         The 100 is based on an assumption that
                         the dilution and attenuation of the
                         contaminant will be 100-fold by the
                         time the contaminant reaches a well.

               b.  Note that, unlike listings, characteristic
                    wastes, including TC wastes,  can be
                   "hazardous* if generated by any source.

     C.  The 'new' TC rule.

          1.   Since 1980, the TC has been known as the 'EPTC'
               due to the use of a leach test called the
               'extraction procedure' or 'EP*.

          2.   In March, 1990 (55 Fed. Reg. 11798, March 29,
               1990) the  Agency revised the TC to:.

               a.  replace the EP with the Toxicity-

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     2.  The TC is also one of the largest expansions
          of the RCRA program since 1980; subjects a
          lot of petroleum wastes to hazardous waste
          requirements.

     3.  TC enforcement is a priority for EPA.

C.  Expansion of the regulated community.

     1.  Generators:

          a.  Small quantity generators must begin
               compliance on March 29, 1991

          b.  Other generators must begin compliance
               on September 25, 1990.

     2.  Treatment, Storage, and Disposal (TSD) Facilities:

          a.  must obtain permit or interim status by
               September 25, 1990 to continue managing
               TC wastes (RCRA Section 3005).

          b.  existing facilities can obtain interim status
               by submitting Part A of their permit
               application by September 29, 1990  (40 C.F.R.
               270.10) and submitting notification (RCRA
               Section 3010).  Interim status is provided
               under RCRA Section 3005(e)(1).

          c.  Newly-regulated TSOs are subject to corrective
               action for any releases on the property
               (including non-hazardous waste) under RCRA
               Section 3008(h).

          d.  Under Section 3005(e)(3), newly-regulated
               disposal facilities will lose interim status
               within 1 year (September 25, 1991) unless:

               i.  TSO certifies compliance with groundwater
                    monitoring requirements  (discussed at
                    55 Fed. Reg. 39409, September 27, 1990)

               ii.  TSO certifies compliance with financial
                    assurance requirements  (discussed at
                    50 Fed. Reg. 38946, September 25, 1985)

               iii.  TSD submits Part B of permit
                    application.

          e.  TC wastes are not yet subject to land ban
               requirements; EPA must promulgate such
               requirements by March 29, 1991.

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Background: The RCRA Universe
      of Hazardous Wastes
             Solid Wastes
    Non-Hazardous
       Wastes
Hazardous
 Wastes
              Characteristic
               Hazardous
                Wa  ^s
        Listed
       Hazardous
        Wastes

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Overview of the Toxicity Characteristic
   • The TC defines a waste as "hazardous" if
     certain constituents exceed regulatory levels

   • Sets regulatory levels at 100 times drinking
     water standards

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        The New TC Rule
Exempts
- Soil and debris from RCRA-regulated UST
  cleanups
- Certain  PCB-containing wastes
- Used oil destined for recycling

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    Enforcement of the TC
Enforceable in both authorized and
non-authorized states

One of the largest expansions of RCRA
universe since 1980

TC enforcement is an EPA priority

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 TC's Requirements for TSDFs
Must have permit or interim status by
9/25/90

Subject to corrective action

Not yet subject to the Land Ban (to be
promulgated by 3/29/91)

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  TC: Loss of Interim Status
Newly-regulated TSDFs will lose interim status
within 1 year (9/25/91) unless TSDFs:
- Certify compliance with groundwater
  monitoring requirements
- Certify compliance with financial
  assurance requirements
- Submit Part B

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TC Issues:  Late 3010 Notifications
             and Non-Notifiers
Background:
     Far fewer 3010 Notifications received than expected from
     generators and TSDFs implies many late and non-notifiers

     3005(e) requires on-time 3010 for Interim status
Issues:
     Late and non-notifying generators and TSDFs are In
     substantial deviation from statute and regulations

     Late and non-notifying generators can not gain Interim status,
     but must still comply with interim status regulations

     How can we Identify non-notifiers

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  RCRA  IN A NUTSHELL:




DO YOU HAVE A VIOLATION?

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II.  Transporter requirements

     A.  Defined in 260.10 as any person who moves waste offsite

     B.  4 duties - Part 263

          1.  participate in manifest system - deliver only to
               specified location
          2.  comply with DOT rules re placarding, containers,
               vehicle safety
          3.  obtain ID number - no permit required
          4.  clean up any spills that occur in transit;
               no permit required for cleanup if "immediate
               response"

     C.  Exception

          No storage (10 day holding period) - 263.12

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               ii.  most expensive:  financial  responsibility
                    Funds for closure/PC,
                    Funds to pay for damages,  if accident

               iii. also expensive:  closure
                    leave facility  in safe condition by:
                         A.   "clean closure":
                     remove  all waste,  contain,  media

                    or   B.   "landfill closure":
                     cap unit and maintain for 30 yrs.
                         w/  GW monitoring

          c.   process specific - different technical
          specifications for diff.  units,  e.g.  tanks,
          landfills, incinerators
                    Part 265, Subparts I - R

               i.  expensive: GW monitoring
               ii.   also expensive:   min.  technical
                    requirements (MTR)  for expansion
                    statute  specifies design;  double
                    liner/leachate  collection
          BUT: save corrective action costs

     3.   Loss of interim status - 3005(e); 270.73

          a.   due to slow pace of permits, lack of
               compliance w/ IS techncial standards
          b.  statutory deadlines for land disposal
               facilities
               must: complete permit application (Part B)
                     comply  with GW monitoring
                     comply  with financial responsibility
          c.  if not: IS terminates  automatically
               cannot operate w/out permit
               universe shrank from 2000 to 500 in 1985,
                    applies  w/in 1  yr.  for newly regulated
                    facilities

     4.   Corrective action - 3008(h)
          a.   cleanup of any releases at facility
          b.   not limited to facilities currently in
                interim status
D.  Permitting standards

     1.  to obtain - Part 270 for permit application
          requirements and procedures to modify permits

          Part 124 for procedures to issue,  appeal permits

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RCRA ENFORCEMENT AUTHORITIES:




      TOOLS OF THE TRADE

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                   CIVIL AND CRIMINAL ENFORCEMENT:

                       "TOOLS OF THE TRADE"

                           Mary B. Coe
                    Associate Regional Counsel
                       U.S. EPA REGION III

I.   RCRA $3008 CIVIL  ENFORCEMENT PROCEDURES

          RCRA §3008(a),  42 U.S.C. §6928(a), provides, in
pertinent part, that:

          (1) Except as provided in paragraph  (2), whenever on
          the basis of any information the Administrator
          determines that any person has violated or is in
          violation of any requirement of this subchapter, the
          Administrator may issue an order assessing a civil
          penalty for  any past or current violation, requiring
          compliance immediately of 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 violation occurred for
          appropriate  relief, including a temporary or permanent
          injunction.

     Under RCRA §3008(a), EPA can take enforcement action to
address violations of  RCRA Subtitle C  fRCRA S$3001-3039b. 42
U.S.C. SS6901-6939(b). and EPA's regulations implementing that
subtitle (40 C.F.R. Parts 260-271).  Such enforcement action can
be either judicial or  administrative

     A.   judicial Enforcement

          -Case must be referred to DOJ.  Litigation Report must
          be prepared  by  ORC based on Technical Support Document
          from RCRA program.

          -If DOJ accepts referral, DOJ/ORC will prepare a
          complaint.   Complaint will be filed by DOJ, through
          appropriate  U.S. Attorney's office.

          -Complaint must be filed in the federal district court
          in which the violation occurred.

          -Relief: may seek penalties and/or injunctive relief.

          -Federal Rules  of Civil Procedure apply.

          -Federal Rules  of Evidence apply.

          -Appeals are to appropriate U.S. District Court.

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     Advantages of Judicial  Enforcement:

     -Ability to immediately seek contempt order after
     violation of court's order.

     -Federal courts may be  inclined to award larger
     penalties.

     -Greater publicity; regulated community takes more
     seriously.

     -Greater deterrent value.

     -More effective against recalcitrants and likely
     noncompilers than administrative enforcement.

     Disadvantages of Judicial  Enforcement

     -Need to prepare litigation report.

     -Case controlled more by DOJ, less by EPA Region.

     -Takes longer to get a  result.

     -Federal court judges less conversant with RCRA than
     administrative law judges.


B.    Administrative Enforcement

          1.   Region III process for preparing and issuing
               RCRA Administrative Complaints

          -Facility Inspection; Inspection Report prepared.

          -RCRA program develops case, drafts proposed
          administrative complaint, refers draft complaint
          to ORC for review.

          -ORC reviews, comments, returns draft complaint to
          RCRA Program.

          -RCRA Program revises draft complaint, submits
          final complaint for concurrence by Program and ORC

          -Complaint is signed by Associate Director, Office
          of RCRA Programs,  Hazardous Waste Management
          Division, EPA Region III and issued.

          2.   Consolidated  Rules of Practice Governing the
               Administrative Assessment of Civil Penalties

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                     and  the  Revocation  or Suspension of Permits
                     (40  C.F.R.  Part  22)

               Administrative enforcement under RCRA §3008(a) is
          governed by the  Consolidated  Rules of Practice set
          forth at 40 C.F.R. Part  22.   40 C.F.R. §22.13 provides
          specifically that:

                     If the complainant  has reason to believe that
                     a person has violated any provision of the
                     Act, or  regulations promulgated or a permit
                     issued under the Act, he may institute a
                     proceeding  for the  assessment of a civil
                     penalty  by  issuing  a complaint under the Act
                     and  these rules  of  practice.  If the
                     complainant has  reason to believe that

                     (a)  A  permittee  violated any term or
                     condition of the permit, or

                     (b)  A  permittee  misrepresented or
                     inaccurately described any material fact in
                     the  permit  application or failed to disclose
                     all  relevant facts  in the permit application,
                     or

                     (c)  Other good cause exits for such action,
                     he may institute a  proceeding for the
                     revocation  or  suspension of a permit by
                     issuing  a complaint under the Act and these
                     rules  of practice.  A complaint may be for
                     the  suspension or revocation of a permit in
                     addition to the  assessment of a civil
                     penalty.

     Note;  40 C.F.R. §22.13 doesn't say anything about
compliance orders!

          Procedures under 40 C.F.R. Part 22

          -The Players and their Roles: Complainant, Respondent,
          Presiding  Officer, Administrative Law Judge,
          Administrator, Judicial  Officer, Regional Hearing
          Clerk, Intervenors (40 C.F.R. §22.03, .04 and .11).

          -Filing of Pleadings  and documents; service; form of
          pleadings  and  documents  (40 C.F.R §22.05).

          -Originals to  Regional Hearing Clerk; true and correct
          copies to  Presiding officer,  Complainant, Respondent
          and any other  Parties (e.g.,  Intervenors).

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                      4

-Certificates of service.

-Service of complaint: personal service or service by
certified mail.  Other service: personal or certified
or first class mail.

-Computation and extensions of time (40 C.F.R. §22.07).

-Ex-parte contacts (40 C.F.R. §22.08).

-Complaint: issuance; amendment; withdrawal (40 C.F.R.
 §22.14) (sample attached).

-Answer to Complaint  (40 C.F.R. §22.14).

-Designation of Presiding Officer.

-Order Setting Prehearing Procedures:

     -status reports
     -prehearing exchange (40 C.F.R. §22.19(b).
     -discovery (40 C.F.R. §22.19(f)).

-Default Order (40 C.F.R. §22.17).

-Accelerated decision; decision to dismiss (40 C.F.R.
 §22.20).

-Informal settlement; Consent Agreement and Order (40
 C.F.R. §22.18).

-Hearings:

     -schedule (40 C.F.R. §22.21)
     -evidence (40 C.F.R. §22.22)
     -objections and offers of proof (40 C.F.R.§22.23)
     -burden of presentation and proof (40 C.F.R.
      §22.24) .

-Proposed Findings of Fact, Conclusions of Law (40
C.F.R. §22.26).

-Initial Decision (40 C.F.R. §22.27).

-Motion to Reopen Hearing (40 C.F.R. §22.28).

-Appeals (40 C.F.R. §22.31).

-Final Order (40 C.F.R. §22.31).

-Supplemental Rules for RCRA §3008(a)  (40 C.F.R.
 §22.37).

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     Advantages of Administrative Enforcement

          -handled entirely in-house  (no need for HQ or DOJ
           concurrence or litigation report);

          -usually quicker process than judicial;

          -ALJs more familiar with RCRA than federal court
           judges;

          -easier to settle.

     Disadvantages of Administrative Enforcement

          -ALJs tend to award lower penalties than federal
           court judges;

          -less deterrent effect than judicial enforcement;

          -must go to federal court to have enforced; more
           steps to obtain contempt order;

          -less effective against recalcitrants and likely
           noncompliers then judicial enforcement.

II.  CIVIL SANCTIONS FOR RCRA SUBTITLE C VIOLATIONS

     A.   Penalties

     1.   Statutory and Regulatory Limitations on Penalties

          Section 3008(a)(3) of RCRA provides, in pertinent
          part, that:

                    Any penalty assessed in the [compliance]
                    order shall not exceed $25.000 per day
                    of noncompliance for each violation of a
                    requirement of [RCRA Subtitle C].  In
                    assessing such a penalty, the
                    Administrator shall taken into account
                    the seriousness of the violation and any
                    good faith efforts to comply with
                    applicable requirements.

          Section 3008(c) of RCRA provides that:

                    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

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                         $25.000 for each day of continued
                         noncompliance with the order.

                    Section 3008(g)  of RCRA provides,  in part,
                    that:

                         Any person  who violates any requirement
                         of [RCRA Subtitle C] shall be liable  to
                         the United  States for a civil penalty in
                         an amount not to exceed $25.000 for each
                         such violation.  Each day of such
                         violation shall, for purposes of this
                         subsection, constitute a separate
                         violation.

                    40 C.F.R. §22.14(c) provides that:

                         The dollar  amount of the proposed civil
                         penalty shall be determined in
                         accordance  with any criteria set forth
                         in the Act  relating to the proper amount
                         of a civil  penalty and watch any civil
                         penalty guidelines issued under the Act.
IN OTHER WORDS .
               The statutory maximum civil penalty for violations
               of RCRA is $25.000 per day, per violation.

               In assessing a civil penalty in a RCRA judicial or
               administrative case, EPA must consider the
               seriousness of the violation and any good faith
               efforts to comply.

               When assessing penalties in RCRA administrative
               cases,  EPA must comply with any "civil penalty
               guidelines" issued under RCRA.
          2.   1990 RCRA Civil Penalty Policy

          EPA has recently issued a revised RCRA Civil Penalty
Policy (October 1990).

          a.   Purpose

          The purpose of the policy is to:

               -ensure that RCRA civil penalties are assessed in
                a fair and consistent manner;

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               -ensure that penalties are appropriate given the
                gravity of the violation;

               -ensure that economic incentives for non-
                compliance with RCRA are eliminated;

               -ensure that penalties are sufficient to deter
                violations of RCRA; and

               -ensure that compliance is expeditiously achieved
                and maintained.

     The  1990 RCRA Civil Penalty Policy does not address whether
assessment of a civil penalty is the correct enforcement response
to a particular violation.  Rather, it focuses on determining the
proper civil penalty amount once a decision has been made to
assess a civil penalty.  Guidance on when to assess
administrative penalties is set forth in the "RCRA Enforcement
Response Policy", dated December 21, 1987.  This latter policy
provides a general framework for identifying violations and
violators of concern, and guidance on selecting the appropriate
enforcement action in response to categories of RCRA violators.

          b.   Applicability

          This documents sets forth the Agency's policy and
internal guidelines for:

               -determining penalty amounts which should be
               sought in administrative complaints filed under
               RCRA §3008; and

               -determining penalty amounts which would be
               acceptable in settlement of administrative and
               judicial enforcement actions under RCRA §3008.

     This policy does not limit the amounts which can be sought
in civil judicial enforcement actions under RCRA §3008.  In such
cases, the government will, in its discretion, continue to file
complaints requesting up to the statutory maximum civil penalty
amount and to litigate for the maximum amount justifiable given
the facts of the case.

     The 1990 RCRA Civil Penalty Policy also governs civil
penalty calculations under the Medical Waste Tracking Act of
1988, 42 U.S.C. §6922 et sea.

     The policy supersedes the guidance document entitled
"Applicability of RCRA Penalty Policy to LOIS Cases" (November
16, 1987).

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                                8

     The policy does not apply to penalties assessed under RCRA
Subtitle I, 42 U.S.C. §6991 et sea.  ("UST").

          IMPORTANT NOTE:  A number of administrative decisions
under RCRA Section 3008(a)  have held that the RCRA Civil Penalty
Policy is not a regulation and is not binding on the Presiding
Officer, the Administrator, or his delegate,  the Judicial
Officer.  See In the Matter of; Elwin G.  Smith Division. Cyclops
Corporation. RCRA (3008)  Appeal No.  86-6  (August 14, 1990); In
re:  A.Y. McDonald Industries. Inc.. RCRA (3008) Appeal No. 86-2
(July 23, 1987).  See also. In the Matter of;  E. Smith Division.
Cyclops Corp.. supra; In re;  Sandoz.  Inc.. RCRA (3008) Appeal
No. 85-7 (February 27, 1987).

     c.   Effective Date

          The 1990 RCRA Civil Penalty is  applicable;

          -Immediately to calculate penalties sought in all RCRA
          administrative complaints and accepted in settlement in
          RCRA administrative and judicial cases for actions
          filed after the date of the policy; and

          -to the maximum extent practicable to the pending
          settlements of administrative and judicial actions
          instituted prior to the date of the policy.

     d.   How the Penalty Calculation System Works

     The penalty calculation system of the 1990 RCRA Civil
Penalty Policy consists of:

          -determining a gravity-based penalty for a particular
           violation from a "penalty assessment matrix" which
           reflects "potential for harm"  and "extent of
           deviation;"

          -adding a "multi-day" component, as appropriate, to
           account for the violation's duration;

          -adjusting the sum of the gravity-based and multi-day
          components up or down to account for case-specific
          circumstances;

          -adding to the amount determined above the appropriate
           economic benefit gained.

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     This can be  summarized  by  the  following equation:

Penalty = gravity-based  +  multi-day +  economic + adjustments
amount        penalty      component   benefit


     In administrative civil penalty cases. EPA will perform two
separate calculations;

               -to determine the  appropriate amount to  seek in
               the administrative complaint and subsequent
               litigation; and

               -to explain and  document  the process by  which the
               Agency arrived at  the penalty figure it  has agreed
               to accept in  settlement.

     In civil judicial cases. EPA will use the penalty  assessment
criteria in the policy to  argue for as high a penalty as  the
facts of a case justify,  and will prepare a calculation,  using
the policy, to explain the rationale for any penalty amount
accepted in settlement.

     Calculation  of  the  Penalty is  done  on a "Penalty Calculation
Worksheet"  (sample attached).

     (i) Gravity-Based Penalty  Matrix  (Day 1 of violation)

          Two factors are  considered in  determining the gravity-
based penalty component:  potential  for harm and extent  of
deviation.  These factors  form  the  axes  of the gravity-based
penalty assessment matrix.   The matrix has 9 cells, each
containing a penalty range.   The  specific cell is  chosen  after
determining which category (major,  moderate or minor) is
appropriate for each factor. The gravity-based penalty matrix  is
illustrated below.
                    Extant of 3«vi*tion ffrea R«quir«»«nt
         Potential
           for
          H*rm

MAJOR
MODERATE
MIHOR
MAJOR
s:s.ooo
to
20.000
910,999
to
1.000
$2.999
to
1.900
MODERATE
$19.999
to
19.000
97.999
to
9.000
91,499
tO
900
MINOR
914.999
to
11.000
94,999
to
1.000
9499
to
100

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                                10
     (ii) Multi-day Component

          If the violation continues beyond one day, the multi-
day component of the total penalty should be calculated as
follows:

          * determine the gravity-based designation for
          the violation (e.g..  major-major, moderate-
          minor, minor-minor)

          • determine whether multi-day penalties are
          mandatory, presumed or discretionary under
          the Policy:

               - Mandatory:  for days 2-180 for
               all violations with the gravity-
               based designation major-major,
               major-moderate,  or moderate major
               (exception for "highly unusual"
               cases, with HQ consultation)

               - Presumed;  for days 2-180 for all
               violations with the gravity-based
               designations, major-minor,
               moderate-moderate, minor-major.

               - Discretionary;  for all days
               after the first for violations with
               the gravity-based designations
               minor-moderate,  moderate-minor or
               minor-minor.

          • Locate the cell in the special multi-day
          matrix which corresponds to the cell selected
          for the gravity-based penalty matrix.
          Multiply the dollar amount selected from the
          appropriate cell in the multi-day matrix by
          the number of days of the violation excluding
          the first day of violation.

     The multi-day penalty matrix is illustrated below:

                                txt«nt of Deviation
        Potential

          for

         Kara

MAJOR
HOOOUTX
MXHOX
MAJOR
55,000
to
1,000
$2,200
to
400
$•00
to
100
MOOtJUTt
$4.000
to
780
$1,<00
to
2SO
$300
to
100
NIMOR
$3,000
to
580
$1,000
to
ISO
$100

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                                11
     (iii) Economic Benefit

          The 1990 RCRA Civil Penalty Policy mandates the
recapture of any "significant" economic benefit of noncompliance
that accrues to a violator.  The following are examples of
regulatory areas for which violations are particularly likely to
present significant economic benefits:  groundwater monitoring,
financial requirements, closure/post-closure, surface impoundment
retrofitting, improper land disposal of restricted waste, cleanup
of discharges, Part B submittals, and minimum technology
requirements.

     Economic benefit need not be calculated where it appears
that the amount is likely to be less than $2,500 for all
violations alleged in the complaint.  This decision should be
documented on the Penalty Calculation Worksheet.

     The Agency generally will not settle cases for an amount
less than the economic benefit of noncompliance.  Four exceptions
(which must be documented on the Penalty Computation Worksheet):

          0 The economic benefit is insignificant
          (i.e.. less than $2,500).

          0 There are compelling public concerns that
          would not be served by going to trial.

          0 It is unlikely that EPA would be able to
          recover the economic benefit in litigation.

          0 The violator has documented an inability to
            pay.

     Economic benefit of noncompliance is calculated using the
BEN computer model.  BEN calculates two types of economic benefit
from noncompliance:

          0 benefit from delayed costs; and
          0 benefit from avoided costs.

     (iv) Adjustment Factors

     After the appropriate gravity-based penalty component and
multi-day penalty component have been determined, the sum of
these components may be adjusted upward or downward to reflect
case-specific factors.  The adjustment factors are:

          0 good faith efforts to comply/lack of good
          faith (upward or downward);

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                               12

          0  degree of willfulness and/or negligence
          (upward or downward);

          0  history of noncompliance (upward);

          °  environmental projects undertaken by
          violators (downward);  and

          0  other unique factors, including risks and
          costs of litigation (upward or downward).

     These factors are usually considered after the penalty in
the Complaint is proposed (i.e..  during settlement)

     After all adjustment factors have been applied, the
resulting penalty may not exceed $25,000 per day per violation.


     B. Compliance Orders and Innunctive Relief

     As noted earlier, RCRA § 3008(a) provides, in part, that
whenever EPA determines that a person has violated or is in
violation of any requirement of RCRA Subtitle C, EPA may issue an
administrative order requiring compliance immediately or within a
specified time (in addition to imposing penalties)  or EPA may
commence a civil action seeking appropriate relief, including a
temporary or permanent injunction.

     If a person violates an administrative compliance order
issued under RCRA § 3008(a), EPA may assess a civil penalty of
not more than $25.000 for each day of continued noncompliance
with the order.  (NOTE: This is different from the civil penalty
authorized for any violation of the Act or regulations pursuant
to RCRA § 3008 (a) (1) and (g) ) .

     Typical subjects for administrative compliance orders and
judicial injunctions: groundwater monitoring,  cease operating
(i.e..  close and undertake post-closure care).


     C. Revocation or Suspension of Permits (42 U.S.C.
        §6928(a)(3) and (c); 40 C.F.R. §22.13)

     EPA may institute an administrative proceeding for the
revocation or suspension of a permit (in addition to the
assessment of a civil penalty)  by filing a complaint under 40
C.F.R.  Part 22 if EPA has reason to believe that:

          0  a permittee has violated any term or
          condition of the permit; or

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                                13

           • a permittee has misrepresented or
           inaccurately described  any material fact in
           the permit application  or failed to
           disclosure all relevant facts in the permit
           applications; or

           ' other good cause exists for such action.


III.  NOTABLE CIVIL CASES UNDER RCRA S3008

     In the complaint underlying  United States v. Environmental
Waste Control. Inc.. 698 F. Supp  1422 (N.D. Ind. 1988), the
United States alleged that the defendant continued to operate its
facility after losing interim status on November 8, 1985 due to
false certifications regarding compliance with financial and
groundwater requirements; that defendants failed to comply with
minimum technology requirements;  that defendant failed to" have an
adequate groundwater monitoring system; and that hazardous
constituents had been released from the defendant's facility,
requiring  corrective action under RCRA § 3008(h).  On defendant's
motion to  dismiss and the parties' cross motions for summary
judgment,  the court held that there can be more than one operator
of a facility; denied summary judgment on the issue of whether
the president and sole shareholder of a corporation which
operated the facility was an operator; denied summary judgment on
the issue  of false certification  regarding compliance with
financial  and groundwater monitoring requirements; granted
summary judgment on EPA's claim that the facility failed to meet
minimum technology requirements;  held that EPA may take
enforcement action under RCRA § 3008 to enforce Subtitle C
requirements in authorized states if it provides prior notice to
the state; and held that a pending state permit denial proceeding
did not require deferring a ruling on EPA's claims under the
doctrine of primary jurisdiction.  After trial on the merits, the
court, in  United States v. Environmental Waste Control. Inc.. 710
F. Supp. 1172 (N.D. Ind. 1989), held that the facility lost
interim status on November 8, 1985 because the certification of
compliance with financial and groundwater monitoring requirements
was false; "good faith efforts" to obtain insurance was not a
defense to liability for operating a facility after failure to
properly certify under RCRA § 3005(e)(l); the facility's
groundwater monitoring system was inadequate; the doctrine of
primary jurisdiction did not preclude consideration of EPA's
claims; the principles of collateral estoppel and res judicata
did not preclude consideration for EPA's claims; EPA has
authority  to enforce RCRA in an authorized state; a corporate
president  and sole shareholder of a corporation, as well as the
corporation itself, could be liable as an "operator", based on
his involvement in the facility's operations and finances; and a
release of hazardous constituents from the facility supported
requiring  corrective action.  The court issued a permanent

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                               14

injunction ordering defendants to cease storing and disposing of
hazardous wastes at the facility, close the facility and
implement corrective action.   The court also ordered payment of a
civil penalty of $2,778,000.   This decision was recently upheld
by the U.S. Court of Appeals  for the Fifth Circuit (Nos. 89-1865
and 89-2197, October 31,  1990).

     In United States v.  Production Plated Plastics. Inc.,  K87-
13 CA (W.D. Mich., January 24, 1991), the court granted in part
the government's Motion for Partial Summary Judgment on
Injunctive Relief and ordered the corporate owners/operators and
an individual corporate officer to close its hazardous waste
facility in accordance with its approved closure plan.  The
facility had lost interim status on November 8, 1985 under
Section 3005(e)(2) of RCRA ("LOIS") because of its failure to
certify compliance with groundwater monitoring and financial
assurance requirements as required by that provision.  In
granting injunctive relief on summary judgment, the court held
that an evidentiary hearing is not always required before an
injunction is issued if affidavits or other documentation clearly
establish the plaintiff's right to the injunction.  The court
also held that if the purpose of the legislation would be
thwarted by a failure to comply,  and the legislation specifically
authorizes injunctive relief, no finding of irreparable injury or
balancing of the equities is  necessary.  The court then found
that, in failing to implement a closure plan mandated by RCRA,
defendants were acting directly at odds with the stated purpose
of RCRA.  The court noted that, even under the traditional
standards for issuing injunctive relief, implementation of the
closure plan was mandated, as it was the only adequate remedy.
Irreparable injury was established by the nature of hazardous
wastes and RCRA is specifically designed to protect the public
from the threat of harm caused by it.  The court denied summary
judgment on the United States' motion for an injunction ordering
compliance with the financial assurance requirements of 40 C.F.R.
§ 265.143.  The court also denied summary judgment as to
groundwater monitoring requirements.

     In an earlier decision,  the court granted summary judgment
on liability.  The individual corporate officer was held
personally liable, jointly and severally, with the corporate
owners/operators, for the RCRA violations, based on evidence that
he was "personally involved in or directly responsible for acts
in violation of RCRA."  742 F. Supp. 956, 963  (W.D. Mich. 1990).

     In United States v.  Maiorano. 20 E.L.R. 20444 (N.D. 111.
1990), the Court imposed a civil penalty of $100,000 for the
defendant's failure to submit a closure plan pursuant to an EPA
order (515 days), failure to respond to a RCRA §3007 information
request (207 days) and failure to submit a revised closure plan
(124 days).

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                                15

     In United States v. T & S Brass and Bronze Works. Inc..  681
F. Supp. 314  (D.S.C. 1988), aff'd 865 F.2d 1261 (4th Cir. 1988),
the district court ordered T & S Brass to pay $194,000 in civil
penalties and to comply with all applicable RCRA closure and
post-closure requirements.  The court of appeals affirmed the
favorable district court ruling in virtually all respects.  The
court held that the defendant's surface impoundment was a "land
disposal facility" subject to the certification requirements of
RCRA § 3005(e)(1)  (the "loss of interim status" or "LOIS"
provision); that the formation of hazardous wastewater treatment
sludge in defendant's surface impoundment after November 8, 1985
was not inadvertent; and that the district court acted within its
discretion in imposing a $194,000 penalty (1000 per day of
violation) and issuing an injunction requiring the submission of
closure and post-closure plans.  The court rejected the defense
of "impossibility" with respect to the requirement to obtain
liability insurance as a condition of continued operation of the
facility after November 8, 1985.

     In United States v. Clow Water Systems. 701 F. Supp. 1345
(S.D. Ohio, December 19, 1988), the court granted the United
States' motion for summary judgment on the issue of the
defendant's loss of interim status under RCRA § 3005(e) and for
various violations of a pre-existing administrative Consent
Agreement and Final Order.  In so ruling, the court held that
good faith efforts to obtain, and the impossibility of obtaining,
insurance are not defenses to liability for continued operation
of a facility after November 8, 1985.  The court also held that
corrective action under RCRA § 3008(h) could be required at a
facility from which there were releases of hazardous
constituents.

     In United States v. Lacks Industries. No. G87-413-CA (W.D.
Mich. May 1, 1989), the court found the defendant liable for
disposing of hazardous wastewaters in surface impoundments after
November 19, 1980, notwithstanding defendant's failure to obtain
interim status for the facility, and for failing to meet HSWA
requirements for land disposal facilities.  The defendant claimed
that because it had an NPDES permit for the facility, the wastes
in issue were exempt from RCRA regulation under 40 C.F.R.
§ 261.4(a) (2).  The court rejected that defense, holding that the
exemption only applied to wastewater discharges that are "actual
point source discharges" and not to wastes, such as defendant's,
which are "being collected, stored, or treated before discharge"
or "sludges that are generated by individual wastewater
treatment."  The court also rejected the defense that the state
had acquiesced in the continued disposal, finding no authority
for such defense.  After the penalty phase of this case, the
court imposed a civil penalty of $250,000.  No. G87-413 CA (W.D.
Mich., June 22, 1990).

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                                16

     In United States v. Crown Roll Leaf. Inc..  No. 88-831
(D.N.J., October 20, 1988), affd 888 F.2d 1382  (2nd Cir. 1990),
cert, denied 110 S.Ct. 870 (1990),  the district  court held that
the defendant's failure to respond to an EPA information request
under RCRA §3007 and CERCLA §104(e) justified a  penalty of $100
per day or $142,000, because:  (1)  defendant's failure to comply
was willful and in bad faith;  (2)  the public may have been
injured by defendant's failure to comply; (3) the defendant was
financially capable of paying a significant penalty; (4) a
penalty is necessary to eliminate any benefits that may have
accrued to the defendant as a result of its noncompliance; and
(5) a penalty is necessary to indicate the authority of EPA.  The
court also stated that, in assessing a penalty,  a court need not
find that actual injury occurred;  potential injury is sufficient.
The major purpose of a civil penalty is deterence, and the
penalty "should be large enough to hurt".

     In United States v. Conservation Chemical Co.. 733 F.Supp
1215 (N.D. Ind. 1989), the court held that under RCRA,  an
individual may be held liable as either an "operator" or as an
actively-involved responsible corporate official.   The court also
held that a facility have more than one operator who is liable
under RCRA.

     In United States v. Allegan Metal Finishing Company. 696 F.
Supp. 275 (W.D. Mich. 1988), the court, on the United States'
motion for summary judgment, held that defendant had violated
RCRA by continuing to operate two hazardous waste surface
impoundments after November 8, 1985, notwithstanding defendant's
failure to certify compliance with RCRA financial and groundwater
monitoring requirements under RCRA § 3005(e)(l), and by failing
to pay part of a penalty required by an earlier administrative
consent agreement and order.  In so ruling, the court held that
sludges that are generated by industrial wastewater treatment are
not excluded from RCRA regulation under 40 C.F.R.
§261.4(a)(2)(which otherwise exempts from RCRA regulation "actual
point source discharges" subject to NPDES permits); that the
state notification requirements of RCRA § 3008(a)(2) were not
applicable to the complaint because the violations in issue
occurred prior to authorization of the state's hazardous waste
management program and because the complaint was filed on the
same day that such program was authorized; that impossibility is
not a defense to a claim that a facility failed to certify
compliance with RCRA's financial responsibility requirements
under RCRA § 3005(e)(1) (although it might be relevant to the
relief awarded); that a surface impoundment which is to be clean
closed is nevertheless a "land disposal facility" under RCRA §
3005(e)(l); and that the existence of an earlier administrative
agreed order did not preclude EPA from bringing its enforcement
action under the doctrine of res •judicata.

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                                17

     In United States v. Vineland Chemical Company. 692 F. Supp.
415 (D.N.J. 1988), the court held, on the United States' motion
for summary judgment, that defendant was liable for continuing to
operate two hazardous waste surface impoundments after
November 8, 1985, despite failing to adequately certify
compliance with RCRA financial responsibility requirements by
that date under RCRA § 3005(e)(l), and for failing to file a
closure plan within 15 days of losing interim status under that
section.  In so ruling, the court rejected defendants argument
that the facility's interim status was not lost until February 6,
1987,  the date on which the U.S. Court of Appeals for the Third
Circuit upheld EPA's determination that such interim status had
been lost.  The court also rejected various equitable defenses
raised by the defendant.  The Court noted that no violation of
the defendant's procedural due process rights occurred where
large RCRA civil penalties were not stayed during appeal of
administrative decision.  After the penalty phase of this case,
the Court imposed a civil penalty of $1,000 per day for 1223 days
of violation, or $1,223,000. 31 ERC 1720 (D.N.J. 1990).

     In United States v. Indiana Woodtreatina Corp.. 686 F. Supp.
218 (S.D. Ind. 1988), the court found the defendant liable for
failing to submit a notification of hazardous waste activity
pursuant to RCRA § 3010; for operating a hazardous waste
management facility after November 1980 without having qualified
for interim status; and for failing to comply with numerous
requirements applicable to interim status facilities (as well as
to facilities which should have, but did not, qualify for interim
status) under 40 C.F.R. Part 265.  The court also found releases
of hazardous wastes and hazardous constituents from the
defendant's facility and ordered corrective action under RCRA
§ 3008(h).

     In In the Matter of Elwin G. Smith Division. Cyclops
Corporations. RCRA (3008) Appeal No. 86-6 (August 14, 1990), the
Chief Judicial Officer ordered the respondent to pay a civil
penalty of $92,655 for four counts of violating RCRA Subtitle C
interim status requirements.  This case provides a good
illustration of the application of the 1984 RCRA Civil Penalty
Policy, including a downward adjustment for the respondent's
cooperations with state hazardous waste officials in the criminal
prosecution of a third party as a "unique circumstance".

     In In the Matter of Basin Refining. Inc.. RCRA-V1-626-H
(Initial Decision, July 31, 1990), the Presiding Officer held
that,  during a Chapter 11 reorganization, under the Bankruptcy
Code,  of a facility "owner/operator", where a Trustee-in-
Bankruptcy has been appointed, the bankrupt's estate is the
"owner" and the Trustee is the "operator" for the purposes of
liability for violation of RCRA.  Violations occuring after
confirmation of the Plan of Reorganization are not discharged by
the bankruptcy.

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                                18


     In In the Matter of Southern Pine Wood Preserving Company.
RCRA-87-13-R (Initial Decision,  November 13, 1989),  the Presiding
Officer, without piercing the corporate veil, held,  among other
things, that a corporate officer was personally liable for
failure to properly close a surface impoundment because of the
role he played in the violation and the corporate owner's lack of
resources to pay for post-closure case.  On appeal to the
Administrator, the Judicial Officer reversed the initial decision
on this issue.  In so doing, the Judicial officer invited the
Region to move for reconsideration of this decision and to
establish that it is Agency-wide enforcement policy to seek the
imposition of individual and personal liability upon officers of
a corporate operator under RCRA § 3008(a) in the absence of
circumstances that show the corporate operator is a sham, and
that such liability can be reconciled with the rule that applies
40 C.F.R. Part 264 interim status requirements to "owners and
operators."  RCRA (3008) Appeal No. 89-2 (November 13, 1990).

     In In the Matter of Ashland Chemical Company. RCRA-V-W-86-
R-13 RCA (3008), Appeal No. 87-17 (October 26, 1989), the
Respondent appealed the ALJ's assessment of a $48,375 penalty for
the following violations of RCRA:  (1) storage of hazardous waste
without a permit; (2) failure to submit a closure plan before
closing unpermitted hazardous waste storage tanks; (3) failing to
maintain tanks in such a manner as to prevent releases of
hazardous waste; an  (4) shipping hazardous waste accompanied by a
manifest with an incorrect EPA Identification Number.  The
penalty was upheld on appeal.  Review was de novo, but great
deference was given to the decision for the ALJ.  This case
provides a good illustration of how the 1984 RCRA Civil Penalty
Policy is to be applied.

     In In the Matter of Environmental Protection Corp.  (East
Side Disposal Facility). RCRA-09-86-0001 (October 24, 1989), the
Respondent sought dismissal of EPA's complaint for violation of
RCRA § 3007 (failure to respond to an information request)
because EPA had failed to state in the complaint the basis for
the proposed penalty of $16,400, as required by 40 C.F.R.
§22.14.  On remand from the district court, the ALJ agreed that
EPA was required to state the basis for its proposed penalty in
the complaint, but did not think EPA's failure to do so supported
setting aside the penalty, as there was no nexus between EPA's
default and the respondent's violation.  The ALJ did review EPA's
proposed penalty under the 1984 RCRA Civil Penalty Policy,
however, and determined that $6,500 was an appropriate gravity-
based penalty.  The ALJ adjusted this penalty upward to $10,400
to reflect the respondent's lack of cooperation, degree of
willfulness and lack of good faith.  On appeal from this ALJ
decision, the Chief Judicial Officer upheld the ALJ's decision
that the information requested by EPA in its information request
was within the scope of RCRA § 3007 and that the ALJ's decision

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                                19

properly addressed the district court's concerns about the
statement of basis for the penalty assessed.  RCRA (3008) Appeal
No. 90 (September 12, 1990).

     In In the Matter of Commonwealth Oil Refining Company. Inc..
II-RCRA-85-0301 RCRA  (3008), Appeal No. 87-16
(September 21, 1989), the Chief Judicial Officer adopted the
Findings and Conclusions of the ALJ that:   (1) material in two of
the respondent's lagoons was a hazardous waste; (2) that the
respondent had lost interim status under RCRA § 3005(e)(2) for
the two lagoons, which qualified  as "land disposal units" under
that section, by failing to certify as required by that
provision; and (3) the respondent was legally responsible for
closure of the lagoons it once operated even though it never
owned them and no longer operated them.  On two new issues raised
on appeal, the Chief Judicial Officer held that:   (1) EPA could
enforce Puerto Rico's authorized  hazardous waste regulations; and
(2) that the respondent's discharge of materials into its lagoon
and the long-term (over two years) accumulation of other
materials in tanks involved sufficient elements of discard and
disposal to render those materials solid waste.

     In In the Matter of Grumman  St. Augustine Corporation. No.
87-18-R (Initial Decision, March  10, 1989), Administrative Law
Judge Yost held that the facility in issue had lost interim
status by failing to timely submit its Part B permit application
and certification of compliance with financial responsibility and
groundwater monitoring requirements under RCRA § 3005(e)(2) and
that the facility owner/operator  had failed to comply with the
terms of an earlier Consent Agreement and Final Order requiring
submission of an adequate groundwater monitoring assessment plan
and closure and post-closure plans within a specified time
period.  In so ruling, the ALJ rejected all defenses raised by
the Respondent, including defenses based on the existence of the
earlier Consent Agreement and Final Order and on 40 C.F.R.
§ 261.4(a)(2), which excludes from RCRA regulation industrial
point source discharges subject to NPDES permits.  The $137,751
penalty assessed by EPA (including upward adjustments of the base
penalty based on lack of good faith, willfulness, negligence,
history of noncompliance and economic benefit) was upheld as
consistent with the RCRA Civil Penalty Policy, particularly "in
view of Respondent's rather shocking ignorance of the rules and
regulations pertaining to the facility it operates and the manner
in which it violated the regulations."

     In In the Matter of Fair Haven Plastics. Inc.. RCRA-V-W-88-
R-005 (Initial Decision, April 27, 1989), Administrative Law
Judge Frazier held, inter alia, that the current owner and
operator of a hazardous waste facility may be held liable under
RCRA for the continued storage of hazardous wastes left at the
facility by a previous corporate  tenant who went out of business.

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IV.  RCRA J53008 CRIMINAL ENFORCEMENT

     A. RCRA 33008fdl

RCRA §3008(d),  42 U.S.C. §6928, provides that:

     Any person who—

     (1) knowingly transports or causes to be transported any
     hazardous waste identified or listed under this subtitle to
     a facility which does not have a permit under this subtitle,
     or pursuant to title I of the Marine Protection, Research,
     and Sanctuaries Act (86 Stat.  1052),

     (2) knowingly treats,  stores,  or disposes of any hazardous
     waste identified or listed under this subchapter

          (A) without a permit under this subchapter or pursuant
     to title I of the Marine Protection, Research, and
     Sanctuaries Act (86 Stat. 1052); or

          (B) in knowing violation of any material condition or
          requirement of such permit; or

          (C) in knowing violation of any material condition or
          requirement of any applicable interim status
          regulations or standards;

     (3) knowingly omits material information or makes any false
     material statement or representation in any application,
     label,  manifest, record, report, permit, or other document
     filed,  maintained, or used for purposes of compliance with
     regulations promulgated by the Administrator  (or by a State
     in the case of an authorized State program) under this
     subchapter;

     (4) knowingly generates, stores, treats, transports,
     disposes of, exports,  or otherwise handles any hazardous
     waste (whether such activity took place before or takes
     place after the date of the enactment of this paragraph) and
     who knowingly destroys, alters, conceals, or fails to file
     any record, application, manifest, report, or other document
     required to be maintained or filed for purposes of
     compliance with regulations promulgated by the Administrator
     (or by a State in the case of an authorized State program)
     under this subchapter;

     (5) knowingly transports without a manifest, or causes to be
     transported without a manifest, any hazardous waste rquired
     by regulations promulgated under this subchapter (or by a
     State in the case of a State program authorized under this
     subchapter) to be accompanied by a manifest; or treatment,

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                                21

     storage, and disposal of hazardous wastes, in a manner which
     is not in conformance with such agreement

     shall, upon conviction, be subject to a fine of not more
     than $50,000 for each day of violation, or imprisonment not
     to exceed two years  (five years in the case of a violation
     of paragraph (1) or  (2)), or both.  If the conviction is for
     a violation committed after a first conviction of such
     person under this paragraph, the maximum punishment under
     the respective paragraph shall be doubled with respect to
     both fine and imprisonment.


     B. RCRA §§3008(e) "Knowing Endangerment" and
        3008m "Special  Rules"

RCRA §3008(e), 42 U.S.C.  §6928(e), provides that:

     Any person who knowingly transports, treats, stores,
disposes of, or exports any hazardous waste identified or listed
under this chapter in violation of pararaph (1) , (2), (3), (4),
(5) , or (6) of subsection (d) of this section who knows at the
time that he thereby places another person in imminent danger of
death or serious bodily injury, shall, upon conviction, be
subject to a fine of not  more than $250,000 or imprisonment for
not more than fifteen years, or both.  A defendant that is an
organization shall, upon  conviction of violating this subsection,
be subject to a fine of not more than $1,000,000.

RCRA §3008(f), 42 U.S.C.  §6918(f), provides that:

     For the purposes of  subsection  (e) of this section-

          (1) A person's  state of mind is knowing with respect
          to-
               (A) his conduct, if he is aware of the nature of
               his conduct;

               (B) an existing circumstance, if he is aware or
               believes that the circumstance exists; or

               (C) a result of his conduct, if he is aware or
               believes that his conduct is substantially certain
               to cause danger of death or serious bodily injury.

          (2) In determining whether a defendant who is a natural
          person knew that his conduct placed another person in
          imminent danger of death or serious bodily injury-

               (A) the person is responsible only for actual
               awareness  or actual belief that he possessed; and

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                      22

     (B) knowledge possessed by a person other than the
     defendant but not by the defendant himself may not
     be attributed to the defendant;

Provided, That in proving the defendant's possession  of
actual knowledge, circumstantial evidence may be used,
including evidence that the defendant took affirmative
steps to shield himself from relevant information.

(3) It is an affirmative defense to a prosecution that
the conduct charged was consented to by the person
endangered and that the danger and conduct charged were
reasonably foreseeable hazards of-

     (A) an occupation, a business, or a profession; or

     (B) medical treatment or medical or scientific
     experimentation conducted by professionally
     approved methods and such other person had been
     made aware of the risks involved prior to giving
     consent.

The defendant may establish an affirmative defense
under this subsection by a preponderance of the
evidence.

(4) All general defenses, affirmative defenses, and
bars to prosecution that may apply with respect to
other Federal criminal offenses may apply under
subsection (e) of this section and shall be determined
by the courts of the United States according to the
principles of common law as they may be interpreted in
the light of reason and experience.  Concepts of
justification and excuse applicable under this section
may be devloped in the light of reason and experience.

(5) The term "organization" means a legal entity, other
than a government, established or organized for any
purpose, and such term includes a corporation, company,
association,  firm, partnership, joint stock company,
foundation, institution, trust, society, union, or any
other association of persons.

(6) The term "serious bodily injury" means-

     (A) bodily injury which involves a substantial
     risk of death;

     (B) unconsciousness;

     (C) extreme physical pain;

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                                23


                (D) protracted and obvious disfigurement;
                or

                (E) protracted loss or impairment of the function
                of a bodily member, organ, or mental faculty.

     C. Policy; Procedures; Sentencing

     D. Notable Criminal Cases Under
        RCRA S3008fd).  fe) and  ff)

     In United  States v. Hoflin. 880 F.2d 1033  (9th Cir. 1989),
cert, denied. 110 S.Ct. 1143  (1990), the U.S. Court of Appeals
for the Ninth Circuit upheld the defendant's conviction for
knowingly disposing of  hazardous waste at an unpermitted
facility, in violation  of RCRA §3008(d) (2)(A).  The court
rejected defendant's argument that knowledge of the absence of a
permit was an element of the offense in issue.  In so doing the
Ninth Circuit declined  to follow the Third Circuit opinion in
United States v. Johnson & Towers. Inc. . 741 F.2d 662 (3rd Cir.
1984), cert, denied sub, nom.  Angel v. United States. 469 U.S.
1208 (1985)  (discussed  below).

     In United  States v. Protex. Inc.. 874 F.2d 740 (10th Cir.
1989), the U.S. Court of Appeals for the 10th Circuit upheld the
defendant's conviction  under the "knowing endangerment" provision
of RCRA §3008(e).  The  court rejected defendant's arguments that
the trail court rendered RCRA §3008(e) unconstitutionally vague
by expanding the definition of "serious bodily injury" beyond
that set out in RCRA §3008(f)(6) and by incorrectly defining the
term "imminent  danger".  The court also rejected the argument
that EPA's failure to report to defendant the results of soil
samples taken from the  defendant's facility constituted a defense
to the criminal charges in issue.

     In United  States v. Greer. 850 F.2d 1447 (llth Cir. 1988),
the U.S. Court  of Appeals for the Eleventh Circuit reversed a
district court  order setting aside a jury verdict of guilty and
acquitting the  defendant of charges that he violated RCRA
§3008(d)(2) (A) .  The court found that the element of "knowing
disposal" of hazardous  waste was supported by evidence that
defendant had approved  of previous dumpings of hazardous waste in
order to meet storage problems, and that, when a large load of
waste for which he had  no storage space arrived, he told an
employee, "this is the  job I hired you for . .  . you handle it."
The court found that the element of knowledge that the waste had
the potential to be harmful to the environment was supported by
evidence that a bill of lading identified the waste a 1,1,1-
trichloroethane, and defendant's testimony that he knew that the
law prohibited  the dumping of that material.

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                               24

     In United States v. Johnson & Towers.  Inc..  741 F.2d 662
(3rd Cir. 1984),  cert, denied sub, nom.  Angel v.  United States.
469 U.S. 1208 (1985), the government appealed the trial court's
dismissal of certain counts of an indictment charging employees
of a corporation with disposal of hazardous wastes without a RCRA
permit, in violation of RCRA § 3008(d)(2)(A).  The employees, a
foreman and a trucking supervisor, had successfully moved for
dismissal on the grounds that only the "owner" or "operator" of
th facility — those responsible for obtaining the required
permit — could be convicted under RCRA.  The Third Circuit
reversed the dismissal, holding that individuals who were not
"owners" or "operators" of the facility could be held liable.
However, the court disagreed with the government's argument that
it need only prove the defendant was a "person" who "treated or
disposed of" hazardous waste without a permit.  The court held
that, to support a conviction, the government must prove that the
employees knew that the company was required to have a permit and
did not have one.  Id. at 664-65.  This knowledge need not be
actual knowledge, but could be "inferred by the jury as to those
individuals who hold responsible positions with the corporate
defendant."  Id.  at670.

     United States v. Hayes International Corp..  786 F.2d 1499
(llth Cir. 1986), involved the government's appeal of the
decision of the trial court to set aside the conviction of a
corporation and one of its employees for knowingly transporting
hazardous wastes to a facility which lacked a RCRTA permit, in
violation of RCRA § 3008(d)(1).  The court held that knowledge of
what the waste was and knowledge of the permit status of the
facility is required for conviction, but that a "defendant acts
knowingly if he willfully fails to determine the permit status."
Id. at 1504.  The court further held that jurors could draw upon
a wide range of circumstantial evidence to establish guilty
knowledge.  Id.

     In United States v. Dee. 912 F.2d 741  (4th Cir. 1990), the
U.S. Court of Appeals for the Fourth Circuit affirmed a district
court judgment,  entered after a jury trial, finding three
individual defendants guilty of multiple violations of RCRA
§ 3008(d)(2)(A).   The defendants were civilian employees of the
United States Army assigned to the Chemical Research, Development
and Engineering Center at the Aberdeen Proving Ground in
Maryland.  The court rejected the defendants' argument on appeal
that they were protected by sovereign immunity from criminal
prosecution under RCRA because of their status as federal
employees working at a federal facility.  The court also rejected
the defendants1  contention that they did not "knowingly" commit
the crimes prescribed by RCRA.  The court held that the
government did not need to prove that the defendants knew
violation of RCRA was a crime, nor that regulations existed
listing and identifying the chemical wastes they managed as RCRA
hazardous wastes.  However, the court also held that the

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                                25

knowledge element of RCRA Section 3008(d) does extend to
knowledge of the general hazardous character of the wastes.  (The
district court sentenced each defendant to three years probation
and 1,000 hours of community service per count, to be served
concurrently.)

V.  INFORMATION-GATHERING AUTHORITY UNDER RCRA S3007 fa)

     Section 3007(a) of RCRA, 42 U.S.C. §6927(a), grants EPA (and
authorized states) certain inspection and information-gathering
authorities.  Specifically, that section provides that:

          For purposes of developing or assisting in
          the development of any regulation or
          enforcing the provisions of this chapter, any
          person who generates, stores, treats,
          transports, disposes of, or otherwise handles
          or has handled hazardous waste shall, upon
          request of any officer, employee or
          representative of the Environmental
          Protection Agency, duly designated by the
          Administrator, or upon request of any duly
          designated officer, employee or
          representative of a State having an
          authorized hazardous waste program, furnish
          information relating to such wastes and
          permit such person at all reasonable time to
          have access to, and to copy all records
          relating to such wastes.  For the purposes of
          developing or assisting in the developing of
          any regulation or enforcing the provisions of
          this chapter, such officers, employees or
          representatives are authorized -

               (1) to enter at reasonable times any establishment
                   or other place where hazardous wastes are or
                   have been generated, stored, treated, disposed
                   of, or transported from;

               (2) to inspect and obtain samples from any person
                   of any such wastes and samples of any
                   containers or labeling for such wastes.

          Each such inspection shall be commenced and
          completed with reasonable promptness.  If the
          officer, employee or representative obtains
          any samples, prior to leaving the premises,
          he shall give to the owner, operator or agent
          in charge a receipt describing the sample
          obtained and if requested a portion of each
          such sample equal in volume or weight to the
          portion retained.  If any analysis is made of

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                               26

          such samples,  a copy of the results of such
          analysis shall be furnished promptly to the
          owner,  operator,  or agent in charge.

     Important features  of RCRA S3007fa);

          0  Purposes of  access/information gathering
          are limited to development of RCRA
          regulations and enforcing RCRA.

          0  Access/information may be obtained only
          from persons who generate,  store, treat,
          transport, dispose of or handle  (or have
          handled) hazardous wastes.

          0  Authority may only be exercised by a duly
          designated officer, employee or
          representative of EPA or an authorized
          state.

          0  Access/information must relate to "such
          wastes."

          0  May obtain information relating to such
          waste;  have access to and copy records;
          enter any establishment or place where
          hazardous wastes are or have been
          generated, stored, treated, disposed of or
          transported from; inspect and obtain
          samples of such wastes, containers and
          labels.

          0  Must give owner/operator a receipt for
          samples taken  and an opportunity to take
          split samples.

          0  Copy of any  analytical results must be
          furnished to owner/operator.

     The scope of RCRA §3007 has been clarified by a number of
judicial cases.

     In National-Standard Company v. Adamkus. 881 F.2d 352 (7th
Cir. 1989),  the U.S. Court of Appeals for the Seventh Circuit
affirmed the district court's decision upholding EPA's inspection
of a facility pursuant to RCRA §3007.  The court rejected the
defendant's argument that EPA's authority under RCRA § 3007 is
limited to inspection of hazardous waste identified by the
facility or actual releases of hazardous waste.  The court also
rejected arguments that  a warrant obtained by EPA to inspect the
facility was invalid because it was based on an inadequate
showing of probable cause,  was overbroad in that it allowed EPA

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                                27

to take "background samples" and  should not have been issue ex
parte.

     In United States v. Crown Roll Leaf. Inc. No. 88-831
(D.N.J., October 20, 1988), aff'd 888 F.2d 1382 (2nd Cir. 1990),
cert, denied. 110 S.Ct. 870 (1990), the district court held that
a telephone call to an EPA regional attorney eight months after
the original deadline for a response did not constitute
compliance; that "willfulness" is not an element of a violation
of RCRA § 3007 or CERCLA § 104(e); that the doctrine of corporate
successor liability applied to the information requests in issue;
and that the fact that the information requested by EPA was
already in the possession of the  State of New Jersey and
therefore available to EPA did not relieve Crown of its
obligation to respond to EPA's request.  In a subsequent
decision, United States v. Crown  Roll Leaf. Inc..  No. 88-831
(D.N.J., April 28, 1989), the court awarded EPA the full amount
of civil penalties it had requested for Crown's violations - $100
per day for each day of violation of RCRA § 3007 and $100 per day
for each day of violation of CERCLA § 104(e), for a total civil
penalty of $142,000.

     In Environmental Protection  Corp. v. Thomas.  No. F-87-447-
EDP (E.D. Cal., July 14, 1988), the court held that the
plaintiff's refusal to respond to an EPA information request
under RCRA § 3007 violated "a requirement of RCRA" for which
civil penalties could be imposed  under RCRA § 3008(g).

     In In re Stanley Plating Co.. Inc.. 637 F. Supp. 71 (D.
Conn. 1986) , the court held that  the pendency of a civil action
by EPA against a party for violation of RCRA did not limit EPA to
discovery under the Federal Rules of Civil Procedure or preclude
discovery of evidence by obtaining a warrant under the authority
of RCRA § 3007.

     In United States v. Charles  George Trucking Co.. 624 F.
Supp. (D. Mass. 1986), the court  granted EPA's motion for summary
judgment against two defendants on the issue of liability for
violations of RCRA § 3007.  The court held that:  an information
request under RCRA § 3007 need not be limited to descriptions of
hazardous wastes, but may inquire as to matters "relating to"
such wastes (including information on shipments of waste to a
facility, the recipient's role in handling wastes and how the
recipient prepared his response); such information requests may
not seek information concerning the recipient's finances or
insurance; failure to respond to  a RCRA § 3007 request is a
violation of RCRA for which civil penalties may be imposed; and
the accrual of penalties without  a prior hearing did not violate
the defendants' fourth amendment  freedom from unreasonable
searches and seizures, nor their  fifth amendment right to due
process, where the information request provided the defendants
with an opportunity to justify their failure to respond.  In a

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                               28

subsequent decision, United States v.  Charles George Trucking
Co..  642 F. Supp. 329 (D. Mass.  1986),  the court granted summary
judgment against additional defendants, holding that:  the
provisions of RCRA, including Section 3007, apply to inactive as
well  as active sites; penalties sought for violations of RCRA
§ 3007 pursuant to RCRA § 3008(g)  are civil in nature; and that
defendants had waived their fifth amendments rights to protection
against self-incrimination and due process by failing to raise
such defenses and justify their failure to respond during the
opportunity provided by EPA.  In United States v. Charles George
Trucking Co.. 823 F.2d 685 (1st Cir.  1987), the court of appeals
affirmed the ruling in the first Charles George case.

     In United States v. Liviola.  605 F.Supp. 96 (N.D. Ohio
1985), the court held that an administrative agency's request for
information will be enforced where the investigation is within
the agency's authority, the request is not too indefinite, and
the information requested is reasonably relevant; that
willfulness is not a prerequisite for the imposition of civil
penalties for a violation of RCRA § 3007 and that EPA need not
issue a compliance order or administrative subpoena prior to
seeking civil penalties for a violation of RCRA § 3007.

     Use of CERCLA §104(e) Information-Gathering
     Authorities in RCRA Enforcement Context

     The information-gathering authority under CERCLA is set
forth at Section 104(e) of that statute, 42 U.S.C. §9604(e).
That provision is discussed in detail in the CERCLA Orientation
materials, and a copy is attached to this outline.

     In certain circumstances, it may be appropriate and
advantageous to rely on CERCLA §104(e), as well as or in lieu of
RCRA §3007(a), to obtain information for a RCRA enforcement
action.  In some respects, the CERCLA information-gathering
authority is broader than that of RCRA, and there are more
enforcement options for the former than for the latter.  A brief
comparision follows:

          Purpose:       RCRA §3007(a)  may be used only for the
                         purpose of developing or assisting in
                         the development of any regulation or
                         enforcing the provisions of RCRA.

                         CERCLA §104(e) may be used only for the
                         purposes of determining the need for
                         response, or choosing or taking any
                         response action under CERCLA, or
                         otherwise enforcing CERCLA.  The right
                         to enter and inspect property and obtain
                         samples may be exercised only if there
                         is a reasonable basis to believe there

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                           29
     Recipient:
   Type of
   Information;
Property Which
EPA May Enter,
   Inspect And
	Sample:
may be a release or threat of release of
hazardous substance or pollutant or
contaminant.

Under RCRA §3007(a), EPA may seek
information from any person who
generates, stores, treats, transports,
disposes of, or otherwise handles or has
handled hazardous waste.

Under CERCLA §104(e), EPA may seek
information from any person who has or
may have information relevant to the
matters described in "Type of
Information", below.
Under RCRA §3007(a), EPA may seek
information "relating to" the
generation, storage, treatment,
transportation, disposal and handling of
hazardous waste.

Under CERCLA §104(e), EPA may obtain
information or documents relating to:
(A) the identification, nature and
quantity of materials which have been or
are generated, treated, stored, or
disposed of at a vessel or facility or
transported to a vessel or facility; (B)
the nature or extent of a release or
threatened release of a hazardous
substance or pollutants or contaminant
at or from a vessel or facility; and (c)
information releating to the ability to
pay for or to perform a cleanup.
Under RCRA §3007(a), EPA may enter, at
reasonable times,  any establishment or
other place where hazardous wastes are
or have been generated, stored, treated,
disposed of, or transported from; EPA
may inspect and obtain samples of any
such wastes and any containers or
labeling for such wastes.

Under CERCLA §104(e), EPA may enter,
inspect and obtain samples from any
vessel, facility,  establishment, or

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                     30

               other place or property:   (A)  where any
               hazardous substance or polluant or
               contaminant may be or has been
               generated,  stored, treated,  disposed of,
               or transported from; (B)  from which or
               to which a hazardous substance or
               pollutant or contaminant  has been or may
               have been released; (C) where such
               release is or may be threatened; and (D)
               where entry is needed to  determine the
               need for response or the  appropriate
               response or to effectuate a  response
               action under CERCLA, as well as any
               vessel,  facility, establishment, place.
               property, or location which  is adjacent
               thereto.  EPA is also authorized to
               inspect and obtain samples from any
               location of any suspected hazardous
               substance or pollutant or contaminant,
               and of any containers or  labels for
               suspected hazardous substances or
               pollutants or contaminants.

Requestor;     RCRA §3007(a) information-gathering
               authorities may be exercised by any
               officer, employee or representative of
               EPA duly designated by the
               Administrator, and any duly designated
               officer, employee or representative of
               an authorized state.

               CERCLA §104(e) information-gathering
               authorities may be exercised by any
               officer, employee, or representative of
               the President, duly designated by the
               President, and any duly designated
               officer, employee, or representative of
               a State or political subdivision under a
               contract or cooperative agreement with
               EPA under CERCLA §104(d)(l).

               (NOTE:  Most information-gathering
               authorities under RCRA §3007(a) and
               CERCLA §104(e) have been delegated to
               the Regional Administrator,  some with
               Headquarters consultation requirements.
               Some Regional Administrators have
               further delegated these authorities.
               Check your Headquarters and Regional
               Delegations Manuals.)

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                                31

           Enforcement:    RCRA §3007(a)  information requests may
                          be judicially enforced under RCRA
                          §3008(a)  and (g).   Failure to comply
                          with such a request may result in
                          appropriate injunctive relief and the
                          imposition of a civil penalty up to
                          $25,000  per day of noncompliance.

                          CERCLA §104(e)  information rquests may
                          be enforced by issuance of an
                          administrative compliance order
                          directing compliance under CERCLA
                          §104(e)(5)I (A).   The order may be issued
                          after notice and opportunity for
                          consultation as is reasonably
                          appropriate under the circumsances.   In
                          addition,  a request for information or
                          order requiring compliance with such a
                          request  under CERCLA §104(e)  may be
                          enforced judicially under CERCLA
                          §104(e)(5)(B);  the court may order
                          injunctive relief and/or a civil penalty
                          of up to $25,000 per day of
                          noncompliance for unreasonable failure
                          to comply.

VI.  EPA ENFORCEMENT OF RCRA SUBTITLE C IN AUTHORIZED STATES

     Section  3008(a)(2)  of RCRA,  42  U.S.C.  §6928(a)(2),  provides
that:

           In  the  case of a violation of any requirement
           of  [RCRA Subtitle C]  where such violation
           occurs  in a State which is authorized to
           carry out a hazardous waste program under
           Section 3006,  the Administrator shall give
           notice  to the State in  which such violation
           has occurred prior to issuing an order or
           commencing a civil action under this section.

     EPA has  interpreted this to  mean that it has authority to
take independent  action to enforce provisions of a state's
authorized program as well as to  enforce provisions of HSWA for
which a state has not yet received authorization,  the courts have
agreed.  See.  T & S Brass and Bronze Works.  Inc..  681 F.  Supp.
314  (D.S.C. 1988),  aff'd 865 F.2d 1261 (4th Cir 1988); Wvckoff
Company v. EPA. 796 F.2d 1197 (9th Cir.  1986); United States v.
Environmental Waste Control. Inc..  710 F.Supp. 1172 (N.D.  Ind.
1989);faff'd  Nos.  89-1865 and 89-2197,  October 31,  1990)  United
States v.  Environmental  Waste Control.  Inc..  698 F. Supp.  1422
(N.D. Ind. 1988);  United States v.  Rogers.  685 F.  Supp.  201 D.
Minn. 1987) ;  United States v. Conservation Chemical Co.  of

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                                32

Illinois. 660 F. Supp. 1236 (N.D. Ind., April 23, 1987); In re
Municipal and Industrial Disposal Company. RCRA Appeal No. 87-4
(CJO, November 1, 1988); In re CID-Chemical Waste Management of
Illinois. Inc..  RCRA Appeal No. 87-11 (CJO, August 18, 1988)).

     The Revised Enforcement Response Policy (December 21, 1987)
provides that states authorized to administer their own hazardous
waste programs under RCRA §3006 have the primary responsibility
for ensuring compliance with RCRA.  However, it is EPA's policy
to take enforcement action in an authorized state when:

          0 the State asks EPA to do so and provides
          justification based on unique case-specific
          circumstances;

          0 the State fails to take "timely and
          appropriate" enforcement action  (see In re
          Cyclops. Docket No.  RCRA V-W-85-R-002
          (September 24, 1985); In the Matter of BKK
          Corporation. Docket No. IX-84-0012, Appeal
          No. RCRA (3008) 84-5  (May 10, 1985), _
          vacated 	 (October 23, 1985));

          0 the State is not authorized to take the
          action; or

          ° a case could establish a legal precedent.

     EPA may also consider taking enforcement actions seeking
penalties if it believes the economic sanction imposed by a state
was inadequate,  particularly when non-compliance continues.

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                 COMPREHENSIVE  ENVIRONMENTAL RESPONSE
                   COMPENSATION, AND  LIABILITY ACT  OF 1980
                           §  9604.  Response  authorities   [CERCLA
                                        §  104]
(e) Information gathering and access: action  autho-
     rized, access to information, entry, inspection and
     samples:  authority  and  samples, compliance or-
     ders:  issuance and compliance, other authority.
     confidentiality of information: basis for withhold-
     ing
  (1) Action authorized
    Any officer, employee, or representative of the
  President, duly  designated by the President, is
  authorized to take action under paragraph (2), (3),
  or (4) (or any combination thereof) at a vessel,
  facility' establishment, place, property, or location
  or jn the case  of paragraph (3) or (4),  at any
  vessel, facility, establishment, place, property, or
  location  which is adjacent to the vessel, facility.
  establishment,  place, property,  or location  re-
  ferred to in such paragraph (3) or (4).  Any duly
  designated officer, employee,  or representative of
  a State or political subdivision under a contract or
  cooperative agreement under subsection (d)(l) of
  this section is also authorized to take such action.
  The authority of paragraphs (3) and (4) may be
  exercised only if there  is a  reasonable basis to
  believe there may be a release or threat of release
  of a hazardous substance or pollutant or contami-
  nant.  The  authority of this subsection may be
  exercised only for the  purposes of determining
  the need for response, or choosing or taking any
  response action  under this subchapter, or other-
  wise enforcing the provisions of this  subchapter.
  i2> Access to information
    Any  officer,  employee,  or representative  de-
  scribed in paragraph  (1) may require any person
  who has or may have information relevant to any
  of the following to furnish, upon reasonable no-
  tice,  information or  documents  relating to such
  matter:
      (A)  The identification, nature, and quantity
    of materials which have been or are generated,
    treated,  stored,  or disposed of at  a vessel or
    facility or transported to a vessel  or facility.
      (B)  The nature  or extent  of a  release or
    threatened release of  a hazardous substance or
    pollutant or contaminant at or from a vessel or
    facility.
      (C)  Information  relating to the  ability of a
    person to pay  for or to  perform  a cleanup.
In  addition, upon  reasonable notice, such  person
either (i) shall grant any such officer, employee, or
representative access at all reasonable times to any
vessel, facility,  establishment, place, property, or
location to  inspect  and  copy  all  documents or
records relating  to such matters or (ii) shall copy
and furnish to the officer, employee, or representa-
tive all such documents or records, at the option and
expense of such  person.
 (3) Entry

   Any officer, employee,  or  representative  de-
 scribed in paragraph (1) is  authorized to enter at
 reasonable times any of the following:

     (A) Any  vessel, facility,  establishment, or
   other  place  or property  where  any  hazardous
   substance or pollutant or contaminant may be
   or has been generated, stored, treated, disposed
   of, or transported from.
     (B) Any  vessel, facility,  establishment, or
   other  place or property from which or to which
   a hazardous  substance or pollutant or contami-
   nant has been  or may have been released.
     (C) Any  vessel, facility,  establishment, or
   other  place or property where such release is or
   may be threatened.
     (D) Any   vessel, facility,  establishment, or
   other place or property  where entry is needed
   to determine the need for response  or  the ap-
   propriate response or to effectuate a response
   action under this subchapter.
 (4) Inspection and samples
   (A) Authority
     Any officer, employee or representative de-
   scribed in paragraph (1) is authorized to inspect
   and obtain  samples from any vessel,  facility.
   establishment, or other  place  or property re-
   ferred to in  paragraph (3) or from any location
   of any suspected hazardous substance or pollu-
   tant or contaminant.  Any such officer, employ-
   ee, or representative  is  authorized  to  inspect
   and obtain samples of any  containers or label-
   ing for suspected hazardous substances or pol-
   lutants or contaminants.  Each  such inspection
   shall  be completed with reasonable promptness.

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    (B) Samples
       If the  officer, employee,  or representative
    obtains any samples, before leaving the premis-
    es he shall give to the owner, operator, tenant,
    or  other  person in charge of the place  from
    which  the samples were obtained  a receipt de-
    scribing the sample obtained and,  if requested,
    a portion  of each such sample.  A copy of the
    results of any  analysis made of such samples
    shall be furnished promptly to the  owner,  oper-
    ator, tenant, or  other person in charge, if such
    person can be located.

  (5) Compliance orders
    (A)  Issuance
      If consent is  not granted  regarding any re-
    quest made by an officer, employee,  or repre-
    sentative  under paragraph (2), (3), or (4), the
    President  may issue an order directing compli-
    ance with  the request.   The order may  be is-
    sued after such  notice and opportunity for con-
    sultation as is reasonably appropriate  under the
    circumstances.

    (B)  Compliance
      The  President may  ask the Attorney General
    to commence a civil action to  compel compliance
    with a request  or order referred to in subpara-
    graph  (A).  Where  there is a reasonable  basis
    to believe there  may be a release or threat of a
    release of a  hazardous substance or pollutant
    or contaminant, the court shall take the follow-
    ing actions:

        (i) In the case of interference with  entry
      or inspection, the court shall enjoin such in-
      terference or direct compliance with orders to
      prohibit interference with entry  or  inspection
      unless  under  the circumstances of the case
      the demand for entry or  inspection is arbi-
      trary and capricious, an abuse of discretion,
      or otherwise  not in accordance with law.
        (ii) In the case of information or document
      requests or orders, the court shall  enjoin in-
      terference with  such  information or doc-
      ument  requests or orders or direct compli-
      ance  with the requests or orders  to provide
      such information or documents  unless under
      the circumstances of the case the demand for
      information or documents is arbitrary and
      capricious, an abuse  of discretion, or  other-
      wise not in accordance with law.
The court may assess a civil penalty not  to exceed
$25,000 for each day of noncompliance against any
person  who unreasonably fails to comply with the
provisions  of  paragraph (2),  (3),  or (4) or an  order
issued pursuant to subparagraph (A)  of  this  para-
graph.

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                                                      SA-MPLE
                    BEFORE THE UNITED STATES
                 ENVIRONMENTAL PROTECTION AGE..rT_^
                           REGION III         --r_jx? ?::«! •_.;.,


In Re:                        )     Docket No.  RCRA-TII-214

Rapid Circuits Inc.           )     Complaint,  Compliance
6401 McPherson Avenue         )     Order and Notice of
Levittown, Pennsylvania 19057 )     Opportunity for Hearing

          RESPONDENT          )


                        I.   INTRODUCTION

     This Complaint, Compliance Order and Notice of Opportunity
for Hearing ("Complaint")  is filed pursuant to Section 3008(a)(1)
and (g) of the Resource Conservation and Recovery Act, as
amended,  ("RCRA"), 42 U.S.C.  Section 6928(a)(l)  and (g), and the
Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension of
Permits ("Consolidated Rules of Practice"), 40 C.F.R.  Part  22.
The Complainant is the Associate Director, Office of RCRA
Programs, Hazardous Waste Management Division, United States
Environmental Protection Agency,  Region III ("EPA").  Respondent
is Rapid Circuits Inc. ("Respondent").

     Respondent is hereby notified of EPA's determination that
Respondent has violated RCRA Subtitle C, 42 U.S.C. Sections 6921-
6939b and the regulations thereunder at 40 C.F.R. Part 268.
Section 3008(a) of RCRA authorizes EPA to take enforcement  action
whenever it is determined that a person is in violation of  any
requirement of RCRA Subtitle C,  EPA's regulations thereunder,  or
any regulation of a state hazardous waste management program
which has been authorized by EPA.  Section 3008(g) of RCRA, 42
U.S.C. Section 6928(g), authorizes the assessment of a civil
penalty against any person who violates any requirement of
Subtitle C of RCRA.

     On January 30, 1986,  pursuant to Section 3006(b)  of RCRA,  42
U.S.C. Section 6926(b), and 40 C.F.R. Part 271,  Subpart A,  the
Commonwealth of Pennsylvania ("Pennsylvania")  was granted final
authorization to administer a state hazardous waste management
program in lieu of the Federal hazardous waste management program
established under RCRA Subtitle C, 42 U.S.C. Sections 6921  -
6939b.  The provisions of the Pennsylvania hazardous waste
management program, through this final authorization,  have
become requirements of RCRA Subtitle C and are accordingly,
enforceable by EPA pursuant to Section 3008(a) of RCRA,  42  U.S.C.
Section 6928(a).

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     Pennsylvania has not been granted authorization to
administer its hazardous waste management program in lieu of
certain provisions of the Hazardous and Solid Waste Amendments
("HSWA") enacted on November 8, 1984 (Pub. Law No.  98-616), which
amended Subtitle C of RCRA.  These provisions are enforceable in
Pennsylvania exclusively by EPA.  (The Pennsylvania Solid and
Hazardous Waste Management Regulations, as authorized, appeared
at 25 PA Code Section 75.259.  These regulations have been
recodified at PA Code Section 259.  Although such recodification
was not authorized by EPA, for ease of reference, citations in
this Complaint are to the recodified sections.)  To the extent
that factual allegations or legal conclusions set forth in the
Complaint are based on provisions of Pennsylvania's authorized
hazardous waste management program, those provisions are cited as
authority for such allegations or conclusions, and the analogous
provisions of the Federal hazardous waste management program
under RCRA Subtitle C are cited thereafter.  Factual allegations
or legal conclusions based solely on provisions of the Federal
hazardous waste management program added or amended by HSWA cite
those Federal provisions as authority for such allegations or
conclusions.

     EPA has given Pennsylvania, through the Pennsylvania
Department of Environmental Resources  ("PADER"), prior notice of
the issuance of this Complaint in accordance with Section
3008(a)(2) of RCRA, 42 U.S.C. Section 6928(a)(2).


                          II.   COMPLAINT

             FINDINGS OF FACT AND CONCLUSIONS OF LAW


1.   Respondent is a Pennsylvania corporation doing business in
     Pennsylvania and is a "person" as defined in 25 PA Code
     Section 260.2 and 40 C.F.R. Section 260.10.

2.   Respondent owns and operates a facility located at 6401
     McPherson Avenue, Levittown, Pennsylvania ("the Facility")v
     As part of the business operations at the Facility,
     Respondent performs copper, tin, lead, nickel, and gold
     electroplating in the production of printed circuit boards.

3.   Respondent submitted to EPA a Notification of Hazardous
     Waste Activity ("Notification") for the Facility on March
     21, 1989, pursuant to Section 3010(a) of RCRA, 42 U.S.C.
     Section 6930(a).  In the Notification, Respondent identified
     itself as a generator of hazardous waste.  Respondent was
     assigned EPA I.D. #PAD 98 727 1483.

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4.   The March 21, 1989 Notification indicated that Respondent
     generates hazardous wastes having the following EPA
     hazardous waste numbers:  D008, F006, D007.  Each of these
     wastes is a "hazardous waste" as that term is defined in 25
     PA Code Sections 260.2 and 261.3 and 40 C.F.R. Sections
     260.10 and 261.3.

5.   The Respondent is a "generator" as that term is defined in
     25 Pa. Code § 75.260(a) and 40 C.F.R. Section 260.10(a).

6.   On August 22, 1989 and August 8, 1990, an EPA representative
     conducted RCRA Compliance Evaluation Inspections of the
     Facility and observed violations of the Federal and State
     hazardous waste management regulations.

                             COUNT I

7.   The allegations of Paragraphs 1 through 6 of the Complaint
     are hereby incorporated by reference.

8.   40 C.F.R. Section 268.7(a)(l) requires that if a generator
     determines that it is managing a restricted waste under 40
     C.F.R. Part 268 and the waste does not meet the applicable
     treatment standards set forth in 40 C.F.R. Part 268, Subpart
     D or exceeds the applicable prohibition levels set forth in
     40 C.F.R. Section 268.32 or Section 3004(d) of RCRA, 42
     U.S.C. Section 6924 (d), with each shipment of waste, the
     generator must notify the treatment or storage facility in
     writing of the appropriate treatment standards set forth in
     40 C.F.R. Part 268, Subpart D or any applicable prohibition
     levels set forth in 40 C.F.R. Section 268.32 or Section
     3004(d) Of RCRA.

9.   In a letter to Respondent dated November 9, 1990, EPA
     requested, pursuant to Section 3007(a) of RCRA, that inter
     alia. Respondent furnish a copy of all hazardous waste
     manifests for off-site shipments of waste since November 8,
     1986.  The documentation provided by Respondent in response
     to EPA's November 9, 1990 information request included the
     following hazardous waste manifests for wastes generated by
     Respondent and shipped off-site:

     Manifest No.       Date               Waste Number
     PAC1205385          02/23/90           D008/D002
                                           D008/D007/D002
                                           D008/D002
                                           D008/D002

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     PAC2167896         06/20/90           D008/D002
                                           D008/D002
                                           D008/D002
                                           D008/D007/D002

     PAC0390014         08/15/89           D008/D002
                                           D008/D002
                                           D008/D002
                                           D008/D007/D002

     PAB5593324         03/20/89           D008/D007/D002
                                           D008/D002
                                           D008/D002
                                           D008/D002

10.  The wastes generated by the Respondent and shipped under
     Manifest numbers PAC1205385, PAC2167896,  PAC0390014, and
     PAB5593324, were hazardous wastes as that term is defined at
     25 PA Code 260.2 and 40 C.F.R. Sections 260.10 and 261.3.
     More specifically, those wastes were (a)  waste nitric acid
     solution having the hazardous waste numbers D008 and D002,
     (b) waste solder bath having the hazardous waste numbers
     D008 and D002, (c) waste solder strip having the hazardous
     waste numbers D008 and D002, and (d) waste solder brightener
     having the hazardous waste numbers D008,  D007, and D002.

11.  Respondent's waste characterization reports demonstrate that
     each of the hazardous wastes described in Paragraph 10 was a
     California List Waste because each waste contained lead or
     compounds of lead at concentrations greater than 500
     milligrams per liter (mg/1). See Section 3004(d) of RCRA, 42
     U.S.C. Section 6924(d).

12.  Respondent's waste characterization reports demonstrate that
     each of the hazardous wastes described in Paragraph 10 was a
     California List Waste because each liquid hazardous waste
     had a pH less than or equal to two  (2.0). See Section
     3004(d) of RCRA, 42 U.S.C. Section 6924(d).

13.  Not later than July 8, 1987, land disposal restrictions
     became applicable to the wastes described in Paragraph 10
     pursuant to Section 3004(d) of RCRA, 42 U.S.C. Section
     6924(d) and/or 40 C.F.R. Section 268.32.

14.  Respondent determined, with respect to the wastes referred
     to in Paragraph 10, that it was managing restricted wastes
     under 40 C.F.R. Part 268 and that the wastes did not meet
     the applicable prohibition levels set forth in 40 C.F.R.
     Section 268.32 or Section 3004(d) of RCRA.  Respondent
     provided the treatment or storage facility receiving waste
     with written notifications that the wastes were land

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     disposal restricted wastes, but failed to identify the
     appropriate prohibition levels in the notifications,  as was
     required for wastes restricted from land disposal after the
     date on which 40 C.F.R. Section 268.7(a) became applicable
     to Respondent's waste.  With respect to the notifications
     for wastes shipped under Manifest Numbers PAB5593324,
     PAC0390014, and PAC1205385 entitled "Land Disposal
     Restriction Notification/Certification for California List
     Wastes" and dated 03/20/89, 08/15/89, and 02/23/90,
     Respondent failed to specifically identify the applicable
     prohibition levels set forth in 40 C.F.R. Section 268.32 and
     Section 3004(d) of RCRA. The notification for the wastes
     shipped under Manifest Number PAC2167896, entitled "Land
     Disposal Restriction Notification/Certification" and dated
     06/20/90, failed to identify the applicable prohibition
     levels and identified the wastes as being subject to a
     variance allowing land disposal of the wastes in units
     meeting minimum technology standards.

15.  Respondent violated 40 C.F.R. Section 268.7(a)(l) by failing
     to provide the appropriate treatment standards or
     prohibition levels with each shipment of land disposal
     restricted waste shipped to the treatment or storage
     facility.


                            COUNT II

16.  The allegations of Paragraphs 1 through 15 of the Complaint
     are hereby incorporated by reference.

17.  During the inspection conducted by EPA representatives on
     August 8, 1990, the EPA representatives reviewed, inter
     alia, hazardous waste Manifest number PAC0390003, dated
     08/15/89.

18.  The waste generated by Respondent and shipped under Manifest
     number PAC0390003, pit sludge from the electroplating
     process wastewater treatment system, is a hazardous waste as
     that term is defined at 25 PA Code Section 260.2 and 40
     C.F.R. Sections 260.10 and 261.3.  The pit sludge is a
     nonwastewater hazardous waste which has been assigned the
     hazardous waste number F006.

19.  No later than August 8, 1988, land disposal restrictions
     became applicable to the F006 (nonwastewater) waste
     described in paragraph 18, pursuant to 40 C.F.R. Section
     268.33(a).

20.  On August 15, 1989, Respondent shipped off-site land
     disposal restricted F006 waste under Manifest number
     PAC0390003.  Respondent determined that it was managing a

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     restricted waste under 40 C.F.R.  Part 268 and that the waste
     did not meet the applicable treatment standards set forth in
     Subpart D of 40 C.F.R. Part 268.   Respondent provided the
     treatment or storage facility receiving the waste with
     written notification that the waste was land disposal
     restricted waste,  but failed to identify the appropriate
     treatment standards in that notification, as was required
     for wastes restricted from land disposal after the date on
     which 40 C.F.R. Section 268.7(a)  became applicable to
     Respondent's waste. The written notification, entitled "Land
     Disposal Restriction Notification/Certification for Hard
     Hammer Wastes" and dated 08/15/89, referred to 40 C.F.R.
     Part 268, Subpart D as the source of the treatment
     standards, but failed to expressly set forth those standards
     and failed to state the subcategory of the waste, the
     treatability group of the waste,  and the C.F.R. Section and
     paragraph where treatment standards appear.

21.  Respondent violated 40 C.F.R. Section 268.7(a)(l) by failing
     to provide the appropriate treatment standards with the
     shipment of the land disposal restricted F006 waste shipped
     to the treatment or storage facility under Manifest number
     PAC0390003.
                           COUNT III

22.  The allegations of Paragraphs 1 through 21 of the Complaint
     are hereby incorporated by reference.

23.  40 C.F.R. Section 268.7(a)(l) provides that if a generator
     determines that it is managing a restricted waste under 40
     C.F.R. Part 268 and the waste does not meet the applicable
     treatment standards set forth in 40 C.F.R. Part 268, Subpart
     D or exceeds the applicable prohibition levels set forth in
     40 C.F.R. Section 268.32 or RCRA Section 3004(d), 42 U.S.C.
     Section 6924(d) with each shipment of waste, the generator
     must notify the treatment or storage facility receiving the
     waste, in writing, of the appropriate treatment standards
     for the waste as set forth in 40 C.F.R. Part 268, Subpart D
     and any applicable prohibition levels set forth in 40 C.F.R.
     Section 268.32 or Section 3004(d) of RCRA.

24.  40 C.F.R. Section 268.7(a)(2) provides that if a generator
     determines that it is managing a restricted waste under 40
     C.F.R. Part 268 and determines that the waste can be land
     disposed without further treatment, then, with each shipment
     of waste, he must submit to the treatment, storage or land
     disposal facility a notice and a certification stating that
     the waste meets the applicable treatment standards as set
     forth in 40 C.F.R. Part 268, Subpart D and applicable

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     prohibition levels set forth in 40 C.F.R. Section 268.32 or
     RCRA Section 3004(d).

25.  During the August 8, 1990 inspection referred to in
     Paragraph 6, above, EPA representatives observed that the
     Respondent did not furnish written notifications and/or
     certifications to each treatment, storage or disposal
     facility receiving the Facility's land disposal restricted
     wastes.

26.  In the November 9, 1990 information request letter described
     in paragraph 9 of the Complaint, EPA requested, pursuant to
     Section 3007 of RCRA, that Respondent furnish copies of all
     hazardous waste manifests and copies of all written
     notifications and/or certifications which Respondent was
     required to provide under 40 C.F.R. Section 268.7(a) to the
     treatment, storage or disposal facility for all off-site
     waste shipments after November 8, 1986.

27.  In response to EPA's request, Respondent furnished copies of
     all hazardous waste manifests and all notifications and/or
     certifications provided by Respondent to the receiving
     facilities with respect to all off-site shipments of
     hazardous wastes after November 8, 1986.  No written
     notifications and/or certifications exist for the following
     manifests of off-site shipments of land disposal restricted
     D008 waste:

     Manifest #90111, shipped off-site en November 27, 1990;
     Manifest #90097, shipped off-site on September 10, 1990;
     Manifest #90002, shipped off-site on August 22, 1990;
     Manifest #90061, shipped off-site on June 25, 1990; and
     Manifest #90014, shipped off-site on April 9, 1990.

28.  The waste generated and shipped by Respondent under the
     hazardous waste manifests listed in Paragraph 27 is a
     hazardous waste as that term is defined at 25 PA Code 260.2
     and 40 C.F.R. Sections 260.10 and 261.3.  More specifically,
     Respondent's waste characterization reports indicate that
     the waste is solder stripper waste, a solution produced from
     removing solder from printed circuit boards, having the
     hazardous waste number D008.

29.  Respondent's waste characterization reports indicate that
     the solder stripper waste described in paragraph 28 was a
     California List waste because it was a liquid hazardous
     waste containing lead or compounds of lead at concentrations
     greater than 500 milligrams per liter (mg/1).  See Section
     3004(d) Of RCRA, 42 U.S.C. Section 6924(d).

30.  Not later than July 8, 1987 but prior to August 8, 1990,
     land disposal restrictions became applicable to the solder

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30.  Not later than July 8,  1987 but prior to August 8,  1990,
     land disposal restrictions became applicable to the solder
     stripper waste pursuant to Section 3004(d)  of RCRA,  42
     U.S.C.,  Section 6924(d).  Not later than August 8,  1990,
     land disposal restrictions became applicable to the solder
     stripper waste pursuant to 40 C.F.R. Section 268.35(a).

31.  Respondent violated 40  C.F.R. Section 268.7(a)(1)  and/or (2)
     by failing to send the  required written notifications and/or
     certifications to the receiving treatment,  storage or
     disposal facility for the off-site shipments of land
     disposal restricted wastes referred to in paragraph 27.
                              Count IV

32.  The allegations of Paragraphs 1 through 31 of the Complaint
     are incorporated herein by reference.

33.  40 C.F.R. Section 268.7(a)(6) requires a generator to retain
     on-site a copy of all written notifications and/or
     certifications produced pursuant to 40 C.F.R. Section 268.7
     for at least five years from the date that the waste subject
     to such documentation was last sent to on-site or off-site
     treatment, storage or disposal.

34.  In the November 9, 1990 information request letter described
     in Paragraph 9 of the Complaint, EPA requested, pursuant to
     Section 3007 of RCRA, that Respondent furnish copies of all
     hazardous waste manifests and copies of all written
     notifications and/or certifications which Respondent was
     required to provide under 40 C.F.R. Section 268.7(a) to the
     treatment, storage or disposal facility for all off-site
     waste shipments after November 8, 1986.

35.  In a supplemental response to EPA's information request
     dated February 21, 1991, Respondent stated that a written
     notification was not retained on-site for Manifest #00002
     for the shipment of D008 waste shipped off-site on January
     31, 1989 and for Manifest #00001 for the shipment of D008
     waste resin waste water shipped off-site on January 8, 1988.

36.  The waste generated and shipped by Respondent under the
     hazardous waste manifests listed in Paragraph 35 is a
     hazardous waste as that term is defined at 25 PA Code 260.2
     and 40 C.F.R. Sections 260.10 and 261.3.  More specifically,
     Respondent's supplemental response demonstrates that the
     waste is resin waste water having the hazardous waste
     numbers D006/D007/D008.
                                8

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37.  Respondent's supplemental response demonstrates that the
     resin waste water described in paragraph 35 was a California
     List waste because  it was a liquid hazardous waste
     containing lead or  compounds of lead at concentrations
     greater than 500 milligrams per liter  (mg/1), chromium or
     compounds of chromium at concentrations greater than 500
     mg/1, cadmium or compounds of chromium at concentrations
     greater than 500 mg/1, and nickel or compounds of nickel at
     concentrations greater than 134 mg./l. See Section 3004(d)
     of RCRA, 42 U.S.C.  Section 6924(d).

38.  Not later than July 8, 1987 but prior to August 8, 1990,
     land disposal restrictions became applicable to the resin
     waste water pursuant to Section 3004(d) of RCRA, 42 U.S.C.
     Section 6924(d).  Not later than August 8, 1990, land
     disposal restrictions became applicable to resin waste water
     pursuant to 40 C.F.R. Section 268.35(a).

39.  Respondent failed to retain on-site written notifications
     and/or certifications produced pursuant to 40 C.F.R.
     Section 268.7(a)(l)  and/or (2) for the off-site shipments of
     land disposal restricted waste referred to in paragraph 36.

40.  Respondent violated 40 C.F.R. Section 268.7(a)(6) by failing
     to retain on-site copies of all written notifications and/or
     certifications required to be produced pursuant to 40 C.F.R.
     Section 268.7(a)(l)  and/or (2) for at least five years from
     the date that the waste was last sent to on-site or off-
     site treatment, storage or disposal.


                    III.  COMPLIANCE ORDER

     Pursuant to the authority of Section 3008(a) of RCRA, 42
U.S.C. Section 6928(a),  Respondent is hereby ordered to:


     1.   Within thirty  (30) days of receipt of this Complaint,
          furnish to each treatment, storage, or disposal
          facility which received any shipment of land disposal
          restricted hazardous waste described in Counts I
          through III a  written notification and/or certification
          under 40 C.F.R. Section 268.7(a)(l) or (2), as
          appropriate, which sets forth the applicable treatment
          standards or prohibition levels for the wastes shipped.
          Included with  the written notification shall be a
          written explanation that such documentation is being
          transmitted under a Compliance Order issued to Rapid
          Circuits Inc.  by EPA.

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     2.   Within fifteen (15) days following receipt of this
          Complaint, obtain copies of the notifications and/or
          certifications provided to the facility which received
          off-site shipments of Respondent's wastes, as described
          in paragraph 35 of the Complaint, and maintain each
          copy on-site for at least five (5) years from the date
          of shipment of such wastes for treatment, storage, or
          disposal pursuant to 40 C.F.R. Section 268.7(a)(6).

     3.   At all times following receipt of this Complaint,
          comply with the applicable notification and/or
          certification requirements of 40 C.F.R. Section
          268.7(a).

     4.   At all times following receipt of this Complaint,
          retain on-site copies of all notices, certifications,
          demonstrations, waste analyses, data, and other
          documentation required to be produced pursuant to 40
          C.F.R. Section 268.7, for at least five years from the
          date that the waste subject to such documentation is
          last sent to on-site or off-site treatment, storage or
          disposal in accordance with 40 C.F.R. Section
          268.7(a)(6).

     5.   Within forty-five  (45) days of receipt of this
          Complaint, submit to EPA a written certification by a
          responsible corporate officer as defined in 40 C.F.R.
          Section 270.11(a)(l) indicating whether or not the
          requirements described in Paragraphs 1 and 2 of this
          Compliance Order have been met.

     Any violation of this Compliance Order or further violation
of RCRA Subtitle C may subject Respondent to further
administrative, civil, and/or criminal enforcement action,
including the imposition of civil penalties and criminal fines
and/or imprisonment, as provided in Section 3008 of RCRA, 42
U.S.C. Section 6928.
                  IV.  CIVIL PENALTY ASSESSMENT

     Pursuant to Section 3008(a)(3) and (g) of RCRA, 42 U.S.C.
Sections 6928(a)(3) and (g),  EPA proposes the assessment of a
civil penalty in the amount of $60,725.00 against Respondent for
the following violations:
                                10

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     Count I

     Failure to provide LDR prohibition levels
     pursuant to 40 C.F.R. Section 268.7(a)(l):

     Manifest #PAC1205385                                 $250.00
     Manifest #PAC2167896                               $4,875.00
     Manifest #PAC0390014                                 $250.00
     Manifest #PAB5593324                                 $250.00


     Count II

     Failure to provide complete treatment standards
     for land disposal restricted waste pursuant to
     40 C.F.R. Section 268.7(a)(l):                     $3,600.00

     Count III

     Failure to furnish written notifications and/or
     certifications to the receiving facility with
     each shipment of land disposal restricted waste
     as required by 40 C.F.R. Section 268.7(a)(l)
     and/or (2):

     Manifest #90111                                    $9,500.00
     Manifest #90097                                    $9,500.00
     Manifest #90002                                    $9,500.00
     Manifest #90061                                    $9,500.00
     Manifest #90014                                    $9,500.00

     COUNT IV;
     Failure to retain on-site a copy of the
     written notification and/or
     certification associated with an
     off-site shipment of land disposal
     restricted waste as required by 40 C.F.R.
     Section 268.7(a)(6):

     Manifest #00002                                    $2,000.00
     Manifest #00001                                    $2,000.00


     Total Penalty                                     $60,725.00
     The appropriateness of the proposed penalty is based upon
facts as set forth in the Complaint; the nature, circumstances,
extent, and gravity of the violation; good faith efforts to
comply with the applicable requirements; and the RCRA Civil
Penalty Policy issued by EPA on October 26, 1990.  Payment of the
penalty shall be made by sending a cashier's check, payable to
the United States of America to:


                                11

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               Regional Hearing Clerk
               EPA Region III
               P.O. BOX 360515-M
               Pittsburgh, Pennsylvania  15251

Copies of the check and transmittal letter shall be
simultaneously sent to:

               Regional Hearing Clerk (3RCOO)
               EPA Region III
               841 Chestnut Building
               Philadelphia, PA  19107

     Respondent has the right to request a hearing to contest any
matter of law or material fact set forth in the Complaint and
Compliance Order, the appropriateness of the assessed penalty or
the terms of the Compliance Order.  To request a hearing,
Respondent must file a written Answer to the Complaint with the
Regional Hearing Clerk (3RCOO), EPA Region III, 841 Chestnut
Building, Philadelphia, Pennsylvania 19107, within thirty (30)
days of receipt of this Complaint.  The Answer must clearly and
directly admit, deny, or explain each of the factual allegations
contained in the Complaint of which the Respondent has any
knowledge.  The Answer must contain:  (1) a statement of the
facts which constitute the grounds of defense;  (2) a concise
statement of the facts which Respondent intends to place at issue
in the hearing; and  (3) a request for a hearing, if Respondent
desires a hearing.  The denial of any material fact or the
raising of any affirmative defense shall be construed as a
request for a hearing.  All material facts not denied in the
Answer will be considered as admitted.

     If Respondent fails to file a written Answer within (30)
days of receipt of this Complaint, such failure shall constitute
an admission of all facts alleged in the Complaint and a waiver
of Respondent's right to a hearing on such factual allegations.
Failure to file a written Answer may result in the filing of a
Motion for Default Order imposing the penalties herein and
ordering compliance with the terms of the Compliance Order
without further proceedings.

     Any hearing requested by Respondent will be held at a
location to be determined at a later date pursuant to 40 C.F.R.
Section 22.21(d). The hearing will be conducted in accordance
with the provisions of the Administrative Procedure Act, 5 U.S.C.
Sections 551-559, and the Consolidated Rules of Practice, 40
C.F.R. Part 22.  A copy of these rules is enclosed.
                                12

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                      SETTLEMENT CONFERENCE

     Complainant encourages settlement of the proceedings at any
time after issuance of the Complaint if such settlement is
consistent with the provisions and objectives of RCRA.  Whether
or not a hearing is requested, Respondent may request a
settlement conference with the Complainant to discuss the
allegations of the Complaint, the amount of the proposed civil
penalty and the terms of the Compliance Order.  A request for a
settlement conference does not relieve the Respondent of its
responsibility to file a timely Answer.

     In the event settlement is reached, its terms shall be
expressed in a written Consent Agreement prepared by Complainant,
signed by the parties, and incorporated into a Final Order signed
by the Regional Administrator.  The execution of such a Consent
Agreement shall constitute a waiver of Respondent's right to a
hearing on any issues of law, fact, discretion or the amount of
any penalties agreed to in the Consent Agreement.

     The project manager assigned to this case is Eric R.
Johnson. If you have any questions concerning the technical
aspects of this case, please contact Mr. Johnson at (215) 597-
6688

     The staff attorney assigned to this case is Timothy Malloy.
If you have any legal questions or wish to arrange a settlement
conference, please contact Mr. Malloy at (215) 597-8462 prior to
the expiration of the thirty  (30) day period following receipt of
the Complaint.  Once again, however, such a request for a
settlement conference does not relieve you of your responsibility
to file an Answer within thirty  (30) days following your receipt
of this Complaint.

     Please be advised that the Consolidated Rules of Practice
prohibit any ex parte discussion of the merits of a case with,
among others, the Administrator, Judicial Officer, Regional
Administrator, Regional Judicial Officer, or Administrative Law
Judge after the Complaint has been issued (40 C.F.R. Section
22.08).
Date:
                               Bruce  P. Smith, Associate Director
                               Hazardous Waste Management Division
                               Office of RCRA Programs
                                13

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               U  'ED STATES ENVIRONMENTAL PROTEC.  NAGENCY
                               REGION III
                           841 Chestnut Building
           ito           Philadelphia. Pennsylvania 19107
                                                    OCT;.,; ,;:v
Honorable Frank VI. Vanderheyden
Administrative Law Judge
U.S. Environmental Protection Agency
401 M. Street SW
Mail Code A-110
Washington, D.C.  20460

               Re: In  the  Matter of: F.L. Smithe Machine
                   Company.  Inc..  Docket No. RCRA-III-188

Dear Judge Vanderheyden:

          Enclosed are true  and correct copies of a fully
executed Consent Agreement and Consent Order in settlement  of  the
above-referenced matter.   The originals of these documents  have
been filed with the  Regional Hearing Clerk.
                                    Sincerely
                                    Mary B.VjCoe
                                    Associate Regional Counsel
cc: Mr. Edgar R. Hartt
    vice President
    F.L. Smithe Machine Company,  Inc.
    Route 22 E
    Duncansville, PA  16635

    Regional Hearing Clerk (3RCOO)
    U.S. EPA, Region III

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*
i
S
      y'*°*T«>,  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             REGION III
                         841 Chestnut Building
          fc./          Philadelphia. Pennsylvania 19107
       < ^aO**

CERTIFIED MAIL

Mr. Edgar R.  Hartt
Vice President
F.L. Smithe Machine Company, Inc.               ^ __      .           <•-',
Route 22E
Duncansville , PA  16635

     Re:  F.L.  Smithe Machine Company, Inc.
          Docket No.  RCRA-III-188

Dear Mr. Hartt:

     Enclosed is a fully executed copy of the Consent Agreement
and Consent Order in the above-captioned case, the original of
which was filed today with the Regional Hearing Clerk.  The
penalty must  be paid within 60 days in order to avoid the accrual
of interest.  It should be made payable to the Treasurer, United
States of America, and sent to the following address:

          United States Environmental Protection Agency
          Region III
          Regional Hearing Clerk
          P.O.  Box 360515M
          Pittsburgh, Pennsylvania  15251

     Please send a copy of the check to the following address:

          Regional Hearing Clerk (3RC20)
          United States Environmental Protection Agency
          Region III
          841 Chestnut Building
          Philadelphia, Pennsylvania  19107

     Thank you  for your continued cooperation in this matter.

                               Sincerely yours,
                               Mary B. Goe
                               Associate Regional Counsel

cc:  Administrative Law Judge Frank W. Vanderheyden

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                          UNITED STATES
                 ENVIRONMENTAL PROTECTION AGENCY
                            REGION  III

IN THE MATTER OF:             )         Docke£-NoV

F.L. Smithe Machine Co., Inc. )         CONSENT AGREEMENT
Route 22 E.                   )
Duncansville, PA  16635       )

               Respondent     )

                      PRELIMINARY STATEMENT

     1.  This Consent Agreement is entered into by the U.S.

Environmental Protection Agency, Region III ("Complainant") and

F.L. Smithe Machine Company, Inc.  ("Respondent") pursuant to

Section 3008 (a) and (g) of the Resource Conservation and Recovery

Act ("RCRA"), 42. U.S.C. Section 6928(a) and (g),  to address the

violations alleged in the First Amended Complaint, Compliance

Order and Notice of Opportunity for Hearing ("First Amended

Complaint") issued to Respondent on September 21,  1990.

     2.  For the purposes of this proceeding only, Respondent

admits the jurisdictional allegations of the First Amended

Complaint.

     3.  Respondent neither admits nor denies the allegations

contained in the First Amended Complaint consisting of the 27

numbered paragraphs on pages three through ten thereof.

     4.  For the purposes of this proceeding only, Respondent

hereby expressly waives its right to a hearing on any issue of

law or fact set forth in the First Amended Complaint or herein.

     5.  Respondent consents to the issuance of the Consent

Agreement and the Consent Order and agrees to comply with their

terms.

     6.  Each party to this action shall bear its own costs and

attorney's fees.

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                                2



             FINDINGS OF FACTS AND CONCLUSIONS  OF  LAW



     7.  Paragraphs  1-27 of the First Amended Complaint are



hereby incorporated  into this Consent Agreement as if set forth



fully herein, subject to paragraph 3 above.



                      COMPLIANCE ORDER TASKS



     8.  Respondent  shall immediately achieve and maintain



compliance with the  provisions of the Compliance Order set forth



at page six of the First Amended Compliant.  Specifically,



Respondent shall:



               a.  Immediately retain on-site a copy of all



notification forms and/or certifications for off-site shipments



of land disposal restricted hazardous wastes generated at the



facility which occurred prior to the date of issuance of the



First Amended Complaint, in accordance with 40 C.F.R.  Section



268.7(a)(6); and



               b.  Retain on-site a copy of all notifications



forms and/or certifications for off-site shipments of land



disposal restricted  hazardous wastes generated at the Facility



which may occur or may have occurred on or after the date of



issuance of the First Amended Complaint, in accordance with 40



C.F.R. Section 268.7(a)(6).



                             PENALTY



     9.  Respondent  agrees to pay the amount of $8,000.00.  Such



payment shall be made by Respondent no later than sixty (60)



calendar days after  receipt by Respondent of the signed Consent



Order.



     10.  Payment of the penalty required under the terms of



paragraph 9, above shall be made by sending a cashier's or

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                                3
certified check, payable to the United States of America, to EPA
Region III, Regional Hearing Clerk, P.O. Box 360515M, Pittsburgh,
Pennsylvania 15251.  A copy of such check shall be sent
simultaneously to the Regional Hearing Clerk (3RCOO), EPA
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107.
                   FULL AND FINAL SATISFACTION
     11.  Complainant hereby agrees and acknowledges that the
payment of the penalty specified in Paragraph 9 and compliance
with the tasks set forth in Paragraph 8 shall constitute full and
final satisfaction of:  (i) Complainant's claims based upon the
violations alleged in the First Amended Complaint, and (ii) any
claims for penalties for additional days of the violations
alleged in the First Amended Complaint which Complainant could
have brought prior to the date of execution of this Consent
Agreement and Consent Order by Complainant.
                      RESERVATION OF RIGHTS
     12.  Nothing herein shall be construed to limit whatever
rights Complainant, the United States of America or the
Commonwealth of Pennsylvania may have to pursue further
enforcement actions:  (A) to enforce the terms of this Consent
Agreement or the attached Consent Order; (B) for violations of
RCRA or any other federal or state law with respect to activities
of Respondent other than the violations alleged in the First
Amended Complaint; and (C) to abate any present or future

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imminent and  substantial  endangerment  caused  by  substances
specified  in  the  First  Amended Complaint.
                          EFFECTIVE DATE
     13.   This Consent  Agreement  and the attached  Consent Order
shall become  effective  upon  receipt by the Respondent  of true and
correct copies of the fully  executed Consent  Agreement and
Consent Order.
For Respondent:            F.L.  Smithe  Machine Company,  Inc.
                                .•>

                           By:
Date $\                          Edgar\V. Hartt
     ^                         VP Administration

For Complainant:           U.S.  Environmental  Protection
                           Agency,  Region III

_        By:  _
Date:                          Mary B.  Coe
                               Associate Regional Counsel
     After reviewing the  Findings of Fact, Conclusions of Law and
other pertinent matters,  I recommend that the Regional
Administrator issue the Consent Order  attached hereto
                                -   / <
                             :  fcJA. V. - A&&.
                           By:
Date:                          Bruce  P. Smith, Associate
                                Director
                               Office of RCRA Programs
                               Hazardous Waste Management Division

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                          UNITED STATES       oncrr-^  r... ^. , r
                 ENVIRONMENTAL PROTECTION AGENC? " ~  ^ '  ' '• "" 43



IN THE MATTER OF:             )          Docket No.  RCRA-I11-188
                              )
F.L. Smithe Machine Co., Inc. )
Route 22 E.                   )          CONSENT ORDER
Duncansville, PA  16635       )
                              )
               Respondent     )

                      PRELIMINARY STATEMENT

          The Preliminary Statement, Findings of Fact and

Conclusions of Law, Compliance Order Tasks, Penalty, Full and

Final Satisfaction, Reservation of Rights and Effective Date in

the foregoing Consent Agreement are accepted by the undersigned

and incorporated as if set forth at length herein;

          NOW THEREFORE, pursuant to Section 3008 of the Resource

Conservation and Recovery Act, 42 U.S.C. Section 6928,  and 40

C.F.R. Section 22.18(c), the Respondent is ordered hereby to

comply with the terms and conditions of the Consent Agreement

("Agreement"), including, but not limited to, the Compliance

Order Tasks and the payment of a civil penalty of $8,000.00.

Payment of the civil penalty shall be made within 60 days of

Respondent's receipt of this Consent Order and Agreement by

cashier's or certified check made payable to the United States or

America.  Remittance shall be sent to the United States

Environmental Protection Agency (EPA), Region III,  Regional

Hearing Clerk, P. O. Box 360515M, Pittsburgh, Pennsylvania 15251.

A copy of such check shall be sent simultaneously to the Regional

Hearing Clerk (3RCOO), EPA, Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107.

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                                2
     The Respondent's failure to make timely payment or to comply
with the conditions in the Consent Order and Agreement may result
in referral of this matter to the United States Attorney for
enforcement in the appropriate United States District Court.
     The following notice concerns interest and late payment
penalty charges that will accrue if the civil penalty set forth
above is not paid within 60 days of Respondent's receipt of this
Consent Order and Agreement.
     Pursuant to 31 U.S.C. Section 3717, an executive agency is
entitled to assess interest and penalties on debts owed to the
United States, and a charge to cover the cost of processing and
handling a delinquent claim.  Interest will begin to accrue on a
civil penalty if it is not paid within 60 days of Respondent's
receipt of this Consent Order.  4 C.F.R. Section 102.13(b).
Interest will be assessed at the rate of the United States
Treasury tax and loan rate.  4 C.F.R. Section 102.13(c).  In
addition, a penalty charge of six percent per year will be
assessed on any portion of the debt which remains delinquent more
that 90 days after payment is due.  However, should assessment of
the penalty charge on the debt be required, it will be assessed
as of the first day payment is due.  4 C.F.R. Section 102.13(e).
Thus, to avoid the assessment of interest, Respondent must pay
the civil penalty within 60 days of its receipt of this Consent
Order and Agreement.  To avoid the assessment of penalty charges
on the debt, Respondent must pay the civil penalty within 150
days of receipt of this Consent Order and Agreement.

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                               3
     The Consent Order and Agreement are effective upon receipt
by Respondent.

    SEP 26 1990             By:
Date:                             Edwin B. Erickson
                                  Regional Administrator

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                      CERTIFICATE OF SERVICE




     I hereby  certify that  the  originals of the foregoing Consent

Agreement and  Order  were hand delivered to the Regional Hearing

Clerk, EPA, Region III,  and that  true  and correct copies were

sent by U.S. mail to the following  persons:
     I
                     Honorable  Frank W. Vanderheyden
                     Administrative Law Judge
                     Environmental Protection Agency
                     401  M Street, S.W.
                     Mail Code  A-110
                     Washington,  D.C.  20460
                     Edgar  R.  Hartt
                     Vice President
                     F.L. Smithe Machine Company, Inc
                     Route  22E
                     Duncansville, PA   16635
DATE '                              Mary B.
                                   Associate Regional Counsel

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            ENFORCEMENT ACCOUNTS R£CE1  .BLE CONTROL
 TO BE FTrr.m OUT BY ORIGINATING OFFICE!
 'Attach a copy of t.".e fir.ai  orier and transmittal letter tt
 2e fendant/Respondent)

 Tr.is  form vas originated t>y=    M^, »  r™*	9/71/90
        -                      (Name of  contac.£_ nerson 1     'Date
 :n ->,e  Office of Regional Counsel	at     b97-'O427	

                  [office]                      [pnone numberj

      aNon-SF  Jud.  Order/Consent    r—i  Administrative Order/
      Decree.  USAO COLLECTS.       L^—'  Consent  Agreement
                                       nO COLLECTS PAYMENT.
      SF Jud.  Order/Consent
      Decree,   no COLLECTS.
     This is an original debt     —This  is  a modification
Name of Person and/or Company/Municipality maJcing the payment
*v.fc»-SiiH*ta«—Machine -Go-.->-€nes	
The Total Dollar Amount of Receivable   S8,000	
(If in installments, attach  sen.  of  amounts  and respective due dates

The Case Docket Number
The Site-Specific Super fund  (SD  Acct.  Number
The Designated Regional/HO  Program  Office

  RCRA State. Enforcement Section/ HWND.'
The IFMS Accounts Receivable Control  Numb«r

If you have any questions call:
                                   (Name of Contact]      [Date]
in the Financial Management Office,  pnone
JUDICIAL OHBSs Copies of  this  fora with an attached copy of the  f ran
Bias of UM final  <«*ig««i  order should b« mailed to:

1. Debt Tracking Officer                  2. Originating office  (ORO
   EnvirooMntal Enforcement  Section     3. Designated Program  Office
   DtsjirtsMnt of Justice/Rm.  1647D
   P.eKVox 7C11, Mnjamin FranJclin station
   MmsJUngton, DC   20044
ADtanSTBATTVl ORDOSt copies of this font with an attached copy of
the front page of the  •*-<•«««»r«ti»«i  order should be sent to:

l.  Originating office                2. Designated Program Office
3.  Regional Hearing Cleric            4. Regional Counsel
                                                           CO
                                                           n
                                                           -o
                                                           ?o
                                                           CO

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               Region III
                           841 Chestnut Building
                       Philadelphia, Pennsylvania 19107
CERTIFIED MAIL                                 L
RETURN RECEIPT REQUESTED
                                                    2 6 1990
Mr. Gerald E. Allison
Environmental Manager
Envirotrol, Inc.
432 Green Street
P.O. Box 61
Sewickley, Pennsylvania  15143-0061

Re:  Envirotrol,  Inc.
     PAD 980 707  087

Dear Mr. Allison:

   Pursuant to the  enforcement authority granted to the  U.S.
Environmental Protection Agency under Section 3007(a)  of the
Resource Conservation and Recovery Act (RCRA),  42 U.S.C. Section
6927(a), which provides in relevant part that "...any  person  who
generates, stores,  treats,  transports, disposes of, or otherwise
handles or has handled hazardous wastes shall," upon request of
any officer, employee or representative of the Environmental
Protection Agency,  duly designated by the Administrator, ...
furnish information relating to such wastes..." (emphasis added),
EPA hereby requests that you furnish to EPA within fifteen (15)
calendar days of  receipt of this letter,  the information
requested below.

1.  Please furnish  to EPA a list of all waste streams  generated
by Envirotrol, Inc.  ("the Facility")  from November 8,  1986 to the
present.

2.  Please describe how each waste stream generated by
Envirotrol, Inc.  is currently disposed of.

3.  Please describe how each waste stream was disposed of during
the period from November 8,  1986 to the present.

4.  Please furnish  to EPA a list of all transporters used by
Envirotrol, Inc.  to ship the Facility's waste to Allegheny Liquid
Systems during the  period from November 8, 1986 to the present.

5.  Please provide  a  flow diagram of the Facility's carbon
regeneration process  to illustrate the regeneration process,
waste generation  points and waste storage areas.

6.  Attached for  reference is a sketch provided by Envirotrol,
Inc. to the Pennsylvania Department of Environmental Resources in
1981.  Is the scrubber still used for high sulfur containing
carbon?
                                                           Printtd on Rtcycltd Paper

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7.  Is the scrubber bypassed for other charcoals?

8.  If the scrubber is used only for high sulfur containing
carbon, is this carbon manifested to Envirotrol, Inc. as a
hazardous waste?

9.  How is the transport water, which is stored in a tank and
then used to transport the carbon to the storage and kiln feed,
disposed of?

10. How often is the transport water described in question 9
above disposed of?

11. Please provide a copy of all hazardous waste manifests for
off-site shipments of hazardous waste from Envirotrol, Inc. since
November 8, 1986.

12. Did Envirotrol, Inc., or anyone designated by Envirotrol,
Inc., conduct waste analyses on each waste stream generated by
the Facility since November 8, 1986 as required under 40 C.F.R.
Section 268.7(a) to determine if the waste is restricted from
land disposal?

13. Please furnish to EPA copies of all waste analyses referred
to in question 12.

14. Did Envirotrol, Inc., or anyone designated by Envirotrol,
Inc., use its knowledge of each waste stream generated by the
Facility since November 8, 1986 to determine if the waste stream
is restricted from land disposal pursuant to 40 C.F.R. Section
268.7(a)?  If so, did Envirotrol, Inc. generate any documentation
to support such determination?

15. Please furnish to EPA copies of all supporting data used to
determine, solely on knowledge of the waste, whether any of the
Facility's waste streams are restricted from land disposal, (see
40 C.F.R. Section 268.7(a)(5)).

16. Did Envirotrol, Inc., or anyone designated by Envirotrol,
Inc.,  furnish a certification and/or written notification with
each  off-site shipment of land-disposal-restricted waste to the
treatment, storage, or disposal facility receiving waste from
Envirotrol, Inc. since November 8, 1986?

17. Please furnish to EPA copies of all certifications and/or
written notifications referred to in question 16.

18. Please provide a copy of the Facility's waste analysis plan
required pursuant to 40 C.F.R. Section 265.13.

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19. Did Envirotrol,  Inc., or anyone designated by Envirotrol,
Inc., record or place  in the Facility's operating record a
demonstration, certification and/or written notification from the
generators of spent  carbon  for each shipment of hazardous
restricted waste received by Envirotrol, Inc. since November 8,
1986?

20. Please furnish to  EPA copies of all demonstrations,
certifications and/or  written notifications referred to in
question 19.

     Failure to provide the information requested or to fail to
adequately explain the basis for such failure constitutes a
violation of Section 3007 (a) of RCRA and may result in
enforcement action and the  imposition of civil penalties of up to
$25,000 per day, and/or criminal fines of up to $50,000 per day
and/or up to two years imprisonment, for each day of violation,
(see 42 U.S.C. Sections 6928(c), (d), and (g)) .

     You are entitled  to assert a claim of business
confidentiality covering any part of the information, in a manner
described in 40 C.F.R. Section 2.203(b).  Information subject to
a claim of business  confidentiality will be made available to the
public only in accordance with 40 C.F.R. Part 2, Subpart B.
Unless a claim is asserted  and substantiated at the time the
requested information  is submitted, EPA may make this information
available to the public without further notice to you.
     This/oJlle.cLluir ul  infuiilldLiun requested" is not subject to
review by the Office of  Management and Budget pursuant to the
Paperwork Reduction Act, 44 U.S.C. Sections 3501-3520.

     Please send the requested information to:

          U.S. Environmental Protection Agency
          Region III
          841 Chestnut Building
          Philadelphia,  PA  19107
          Attn:  Kathleen D. Siftar (3HW62)

     If you have any questions concerning this matter, please
contact Kathleen D. Siftar at  (215) 597-6413.
                                obert E. Greaves, Chief
                                CRA Enforcement/UST Branch
Enclosure

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  CASE  STUDY EXERCISE




IDENTIFICATION OF WASTES

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STATE/FEDERAL ENFORCEMENT FRAMEWORK:




         WHICH LAW TO APPLY?

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               STATE/FEDERAL ENFORCEMENT FRAMEWORK
David A. Nielsen, Attorney-Advisor
Office of Enforcement
U.S. EPA
Washington, D.C.
202-475-7714
I. THE STATE AUTHORIZATION PROCESS

A. The Statute

   1.   Section 3006(b)  of RCRA, 42 U.S.C.  § 6926(b), provides,
in part:

        Any State which seeks to administer and enforce a
        hazardous waste program pursuant to this subtitle
        may develop and, after notice and opportunity for
        public hearing,  submit to the Administrator an
        application, in such form as he shall require,
        for authorization of such program .... Such
        State is authorized to carry out such program in
        lieu of the Federal program under this subtitle
        in such State and to issue and enforce permits
        for the storage, treatment, or disposal of
        hazardous waste unless . . . the Administrator
        notifies such State that such program may not be
        authorized and ... he finds that (1)  such State
        program is not equivalent to the Federal program
        under this subtitle, (2) such program is not
        consistent with the Federal or State programs
        applicable in other States, or (3)  such program
        does not provide adequate enforcement of
        compliance with the requirements of this
        subtitle.

   The effect of this provision is to allow the states to seek
authorization to enact and administer state laws and regulations
in place of the federal  regulatory program found at 40 C.F.R.
Part 260-272.  However,  the state program must be equivalent to
the Federal program, it must be consistent with not only the
Federal program but other state programs, and it must provide for
adequate enforcement.  In addition, Section 3009 of RCRA
prohibits a state from enacting a state law that is less
stringent than the federal requirements.  42 U.S.C. § 6929.
Except as noted below, once a state is authorized for RCRA, the
state regulations provide the substantive requirements that must
be met at facilities located within the state.   To the extent the
state is authorized, the federal regulations are not applicable
in that state.

   2.   HSWA Requirements.  RCRA was amended in 1984 by the
Hazardous and Solid Waste Amendments (HSWA).  In amending RCRA,

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Congress directed EPA to significantly amend the RCRA
regulations.  Congress also provided that requirements and
prohibitions imposed pursuant to HSWA "shall take effect in each
State having an interim or finally authorized State program on
the same date as such requirements takes effect in other states."
In addition, HSWA provided that n[t]he Administrator shall carry
out such requirement directly in each such State unless the State
program is finally authorized . . . ."  RCRA § 3006(g)(l), 42
U.S.C. § 6926(g)(1).

B. Overlapping Federal/State Regulations.

   The effect of Section 3006 of RCRA, as amended by HSWA, can be
confusing.  In summary, when a State is authorized under RCRA,
the regulations approved as part of the State authorized program
are applicable to facilities in that state while the
corresponding federal regulations are not.  If the federal
regulations are amended and that change was not mandated by HSWA,
the amendments are not effective in an authorized state until
that state is authorized by EPA for the amended program.  If the
amendments to the federal regulations were mandated by HSWA, then
the changes are immediately effective and will be implemented by
EPA until the state is authorized for the amendments.

C. Program Withdrawal/Reversion.

   A State that has been authorized pursuant to RCRA may have its
interim authorization revert to EPA or have its final
authorization withdrawn by the Agency.  Interim authorization was
granted by the Agency for existing hazardous waste programs in
the early 1980's.  In a number of notable cases, the interim
authorization terminated when the state did not get final
authorization.  See 42 U.S.C. § 6926(c)(2).  The Agency may also
withdraw a state's authorization when the Administrator
determines, after providing written notice to the state and
conducting a public hearing, that the State is not administering
and enforcing the program in accordance with Section 3006 of
RCRA.  42 U.S.C. § 6926(c).

II.     FEDERAL ENFORCEMENT IN AUTHORIZED STATES

A. EPA Overfiling Authority.

   Pursuant to Section 3008(a) of RCRA, the United States can
bring an action to enforce the requirements of an authorized
state program.  The only prerequisite to such an enforcement
action is that the United States must give notice to the State
prior to issuing the order or commencing the civil action.  This
notice can be given immediately prior to the commencement of the
action.  See RCRA § 3008(a)(2), 42 U.S.C. § 9628(a)(2).

   In the past, a number of defendants have argued that the
United States can not enforce the requirements of an authorized
state program.  Most courts have rejected this argument and

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concluded that the United States can bring actions to enforce an
authorized state program.  See Wvckoff Co. v.  EPA. 796 F.2d 1197
(9th Cir. 1986); See also In the Matter of CID-Chemical Waste
Management of Illinois. Inc..  RCRA (3008)  Appeal No.  87-11.  But
cf. Northside Sanitary Landfill v. Thomas. 804 F.2d 371 (7th Cir.
1986).

B. Which Regulations are Enforceable?

   As noted above, the United States has the authority to enforce
the regulations that constitute a State's authorized program.
However, States have the authority to enact regulations that are
more stringent than the federal regulations.  See RCRA § 3009,
42 U.S.C. § 6929.  In addition, states may enact regulations that
are greater in scope than the federal regulation; that is, the
state regulations have no counterpart in the federal program.
While, the United States can enforce more stringent state
regulations, it can not enforce state requirements that are
broader in scope than the federal program.

C. Effect of State Actions

   A prior state enforcement action, while relevant to an
enforcement action, should not prohibit a federal enforcement
action for the same violations.  Similarly, compliance with a
state court judgment or an order issued by a state agency does
not prohibit EPA from independently enforcing RCRA.  See United
States v. Production Plated Plastics. No.  K87-138, (W.D. Mich.
May 14, 1990).  In addition, reliance on statements by officials
of the authorized state do not excuse RCRA violations.  See
United States v. Lacks Industries. No. G87-413, (W.D. Mich. June
22, 1990).  In both cases, the Judge concluded that the state
actions were relevant in fashioning a remedy.

D. Litigation Implications.

   The United States must carefully examine the applicable state
regulations.  While the state program should be equivalent to the
federal program, the wording of a state's regulations is often
not identical.  Differences in the wording of the regulations may
have unforseen implications on the implementation of the program
and may impact on an enforcement action.

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LITIGATING A CIVIL PENALTY

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                CIVIL PENALTIES AND OTHER RELIEF

Robert Oakley, Senior Attorney   David A. Nielsen,  Atty-Advisor
Environmental Enforcement Sec.   Office of Enforcement
U.S. Dept. of Justice            U.S.  EPA
Washington, D.C.                 Washington, D.C.
202-514-4081                     202-475-7714

Kathie A. Stein, Acting Associate
Enforcement Counsel for RCRA
Office of Enforcement
U.S. EPA
Washington, D.C.
202-382-3050
I.  CIVIL PENALTIES

A. The Statute

   Section 3005(g) of RCRA,  42 U.S.C. § 6928(g), states that

        Any person who violates any requirement of this
        subchapter shall be  liable to the United States for
        a civil penalty in an amount not to exceed $25,000
        for each such violation.  Each day of such violation
        shall for purposes of this subsection, constitute a
        separate violation.

B. Purpose of Civil Penalty

   1.  The major purpose of  a civil penalty is deterrence.
United States v. T & S Brass and Bronze Works. Inc.. 681 F. Supp.
314 (D.S.C. 1988), aff/d in  part  and vacated in part. 865 F.2d
1261 (1988) ; Chesapeake Bay  Foundation v. Gwaltney of Smithfield.
611 F.Supp. 1542, 1556 (E.D. Va. 1985), aff'd 791 F.2d 304, 315
(4th Cir. 1986), reversed on other grounds. 	 U.S. 	, 108 S.Ct.
376 (1987) ;  United States v. Phelps Dodge Industries. Inc.. 589
F. Supp. 1340, 1358 (S.D. N.Y.1984); United States v. Swinqline.
Inc.. 371 F. Supp. 37, 47 (E.D. N.Y. 1974).

   2.  Civil penalties are imposed "first, to discourage the
offender himself from repeating his transgression; and second, to
deter others from doing likewise." United States v. Velsicol
Chemical Corp.. 12 E.R.C. 1417, 1421 (W.D. Tenn. 1978).  They
"should be large enough to hurt, and to deter anyone in the
future from showing as little concern as [the defendant] did for
the need to [comply]."  Phelps Dodge. 589 F. Supp. at 1367;
Swinqline. 371 F. Supp. at 47.

   3.  Even if the defendant is unlikely to repeat his violation,
a substantial penalty is warranted to deter others.  Student
Public Interest Research Group of New Jersey, Inc. v. AT & T Bell
Laboratories. 617 F. Supp. 1190 (D.N.J. 1985) (fact that

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defendant has ceased discharges does not eliminate the need for
civil penalties as deterrent both to defendant and others);
United States v. Phelps Dodge Industries. Inc.. supra. 589 F.
Supp. at 1367 (defendant's sale of the offending division "does
not  . . . eliminate the need for general deterrence").

C. Factors in Setting a Civil Penalty

   1.  Assessment of a civil penalty is committed to the informed
discretion of the court.  United States v. ITT Continental Baking
Co.. 420 U.S. 223, 230 n.6 (1975); United States v. Phelps Dodge
Industries. Inc.. 589 F. Supp. 1340, 1362 (S.D. N.Y. 1984).

   2.  RCRA does not outline precise factors that a court should
consider when assessing a penalty.  However, the maximum penalty
exposure is the appropriate departure point for the court's
analysis.  See Gvaltney. 791 F.2d 304. But see. United States v.
EWC, 710 F. Supp. 1172, 1242 (N.D. Ind. 1989)  (rejecting this
approach as infringing on the discretion vested in the courts by
Congress).

   3.  Unlike the Clean Water Act, RCRA contains no express
factors to be considered for calculating a civil penalty in a
judicial action.  However, Section 3008(a)(3) of RCRA, 42 U.S.C.
§ 6928(a)(3), which addresses administrative civil penalties,
requires the Administrator to "take into account the seriousness
of the violation and any good faith efforts to comply with
applicable requirements."  In T & S Brass. EWC. and Vineland
(discussed below) the Courts all chose to apply these factors to
their penalty calculations.  Further, the court should also
consider the factors generally invoked by courts under other
regulatory frameworks.  E.g., United States v. Danube Carpet
Mills. Inc.. 540 F. Supp. 507, 514 (N.D. Ga. 1982), aff'd. 737
F.2d 988 (llth Cir. 1984); see also United States v. Reader's
Digest Association. 662 F.2d 955 (3rd Cir. 1981) , cert, denied.
455 U.S. 908 (1982); United States v. J.B. Williams Co.. Inc..
498 F.2d 414, 438 (2d Cir. 1974); Phelps Dodge. 589 F. Supp. at
1362.

   4.  Civil penalties are not "tied to damages actually
suffered."  United States v. Velsicol Chemical Corp.. supra. 12
E.R.C. at 1421.   See e.g.. AT&T Bell Laboratories, supra. 617 F.
Supp. at 1202 (interpreting Clean Water Act).

   5.  The cost of complying with RCRA's statutory or regulatory
requirements is not to be considered in mitigating a civil
penalty.  United States v. EWC. 710 F. Supp. at 1244; United
States v. Vineland Chemical Co.. 31 ERC at 1728.

   6.  Economic benefit:  Courts will look at the economic
benefits accrued by defendants' violations of RCRA in setting a

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civil penalty.  United States v.  EWC.  710 F.  Supp. at 1244-1245;
United States v. Vineland Chemical Co..  31 ERG at 1728.

   7.  Ability to Pay:  Where the potential maximum of the
penalty is very large, Courts have looked at the ability to pay
of the defendants.  United States v.  Vineland Chemical Co.. 31
ERC at 1728.
D. Major RCRA Cases imposing civil penalties:

United States v. T & S Brass and Bronze Works. Inc.. 681 F. Supp.
314 (D.S.C. 1988) aff'd in part  and vacated in part. 865 F.2d
1261 (1988):  This case involved continued operation of surface
impoundments containing hazardous wastes after defendant lost
interim status.  The Court imposed a civil penalty of $1,000 a
day for a total of $194,000.

United States v. Environmental Waste Control. 710 F. Supp. 1172,
1142-1145  (N.D. Ind. 1989), aff*d 	 F.2d 	, Nos. 89-1895 &89-
2197 (7th Cir. Oct. 31, 1990):  This case involved a hazardous
waste landfill that continued to operate after losing interim
status, had an inadequate ground water monitoring system, and
placed waste in unlined cells in violation of the minimum
technology requirements of Section 3004(o) of RCRA, 42 U.S.C. §
6924(o).  The Court imposed a civil penalty of $2,000 per day for
a total of $2,788,000.

United States v. Vineland Chemical Co..  31 ERC 1720 (D.N.J.
1990):   This case involved defendants'  continued operation of two
surface impoundments for the storage of hazardous waste after
losing interim status.  The Court also found that defendants
acted in bad faith in misleading EPA and the New Jersey
Department of Environmental Protection in carrying out certain
closure notice without notice to these agencies.  The Court
imposed a penalty of $1000 per day per violation, the total of
which was $1,223,000.  (Note: the opinion actually states that it
is imposing a penalty of only $100 a day, but that is
inconsistent with the total penalty of $1,223,000.)

E.  Factors in Settling A Civil Penalty Action

   1. Applicable Policies.  Revised RCRA Civil Penalty Policy
(RCPP), issued in October, 1990,  applies to the settlement of
civil judicial actions under RCRA, including Medical Waste
Tracking Act of 1988.  RCPP supersedes the May 8, 1984 RCRA
Penalty Policy and the guidance document, dated November 16,
1987, applying the 1984 penalty policy to loss of interim status
cases (LOIS).  RCPP applies to all cases filed after its
effective date and "to the maximum extent practicable" to the
settlement of cases instituted but not resolved before the date
of the policy.  A separate penalty policy issued in November,
1990, applies to the settlement of cases brought under Subtitle I

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of RCRA, 42 U.S.C. Section 6991 et sea.. pertaining to
underground storage tanks.

   2.  Key Provisions.  RCPP is designed to increase compliance
with federal hazardous waste rules by assuring that significant
monetary penalties are assessed for violations and that
defendants are deprived of the economic benefit of noncompliance.
The policy institutes provisions to assure that a penalty is tied
to the length of noncompliance by requiring multiday penalties
for most major, continuing violations.  The recovery of profits
gained as a proximate result of unlawful activity is authorized
under certain circumstances.  Finally, the RCPP imposes
documentation requirements which must be followed, together with
the August 9, 1990 memorandum from James M. Strock, entitled
"Documenting Penalty Calculations and Justifications in EPA
Enforcement Actions."

   3.  Increasing RCRA Penalties.  RCPP is intended to enhance
the deterrent effect of RCRA by increasing the amount of
penalties obtained for RCRA violations.  The Agency's RCRA
Implementation Study (RIS) issued in July 1990 found that the
sanctions of the RCRA program have not created a sufficiently
strong deterrent impact and recommended the Agency seek higher
penalties in administrative and judicial cases.  EPA's
administrative penalty practices, including those under RCRA,
have previously been the subject of reports by EPA's Office of
Inspector General.

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CORRECTIVE ACTION

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                        CORRECTIVE ACTION
A.  The Statute

     1.   Permitted Facilities: Pursuant to Sections 3004(u) and
(v) of RCRA, 42 U.S.C. §6924 (u) and (v), permits issued to
hazardous waste management facilities will require corrective
action for all releases of hazardous waste or constituents from
any solid waste management units located at the facility.  These
permit requirements will be enforceable under Section 3008 (a) of
RCRA.  (Section 3004(u) applies to on-site releases, Section
3004(v) to off-site.)

     2.   Interim Status Facilities; Section 3008(h) of RCRA, 42
U.S.C. §6928(h) provides, in part:

          "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

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        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."

   a. Liability:  To establish a defendant's liability under
Section 3008(h) of RCRA, it is necessary to establish the
following elements: (i) a release into the environment, (ii) of
hazardous waste, and (iii) from a facility authorized to operate
under Section 3005(e) of RCRA.

        (i)  In order to establish a release into the environment
   has occurred, the government must merely demonstrate that
   hazardous waste has migrated into the air, soil, groundwater
   or surface waters.  The government need not demonstrate "the
   extent of such a release or the immediate threat such a
   release might pose." United States v. Environmental Waste
   Control. 710 F. Supp. 1172, 1228 (N.D. Ind. 1989); United
   States v. Clow Water Systems. 701 F.Supp. 1345, 1355-56 (S.D.
   Ohio 1988).  In addition, unlike Section 106 of CERCLA or
   Section 7003 of RCRA, the government does not need to
   demonstrate that the release may present "an imminent and
   substantial endangerment."

        (ii)  The term "hazardous waste" as used in Section
   3008(h) has been interpreted by the Environmental Protection
   Agency to include hazardous wastes and constituents of
   hazardous wastes.  See Memorandum from J. Winston Porter,
   Assistant Administrator for Solid Waste and Emergency
   Response, and Courtney M. Price, Assistant Administrator for
   Enforcement and Compliance Monitoring, Interpretation of
   Section 3008fh) of the Solid Waste Disposal Act.  The
   constituents are identified in 40 C.F.R. Part 261, Appendix
   VIII.  This interpretation was upheld in Clow Water Systems.
   701 F. Supp. at 1355, and Environmental Waste Control. 710
   F.Supp. at 1225-28.

        (iii)  The statute provides that the facility from which
   the release occurs be "authorized to operate under Section
   3005(e) of RCRA."  Section 3005(e)  provides that facilities
   may operate without a RCRA permit if they qualify for interim
   status.  In addition, courts have held that Section 3008(h)
   applies to facilities that operated without ever obtaining
   interim status or that had interim states and lost it.  United
   States v. Indiana Woodtreatinq Corp.. 686 F. Supp. 218, 223 &
   n.3 (S.D. Ind. 1988).

   b)  Administrator's Determination.   In order for the United
States to bring an action pursuant to Section 3008(h) of RCRA,
the Administrator must make a determination that there is or has
been a release.  This authority has been delegated to EPA's
Regional Administrators and, in some Regions, to the Waste

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Management Division Directors.   In making this determination, the
Regional Administrator may rely on his staff's recommendations;
he need not personally investigate the matter himself.
Environmental Waste Control.  710 F. Supp. at 1228.

   c)  Liable Parties.  At a  minimum,  the United States can bring
actions pursuant to Section 3008(h) of RCRA against the present
owner and the operator of the facility.  Environmental  Waste
Control. 710 F.  Supp.  at 1249-50.   An  open question exists as to
whether other entities (i.e., former owners or operators)  are
liable under Section 3008(h).

   d)  Sources of Evidence to Support  a finding of  a Release.
Two statutory reporting requirements should provide assistance to
the United States in establishing that there is or  has  been a
release.  First, the United States can rely on groundwater
monitoring data submitted to  the Agency or the State by the
owner/operator of the facility.  The owner/operator is  required
to submit this data under 40  C.F.R. §  265.92.  In addition, the
Environmental Protection Agency receives significant quantities
of data pursuant to Section 313 of the Emergency Planning and
Community Right-to-know Act of 1986.  This data, also known as
the Toxic Release Inventory (TRI), will increasingly prove to be
a valuable source of evidence of releases of hazardous
constituents.  It is important to note that the owner/operator
can not challenge the validity or accuracy of the monitoring data
it has submitted.  Environmental Waste Control. 710 F.  Supp. at
1226.

   e)  As a practical matter, if the United States  seeks
significant corrective action,  it is useful to demonstrate some
environmental harm or potential harm.   One possible source when
dealing with contaminated groundwater  is to look at Maximum
Contaminant Levels established under the Safe Drinking  Water Act.
If the groundwater is unsafe  to drink, a court is more  likely to
order significant injunctive  relief.

   f)  When requesting relief under Section 3008(h), the United
States should submit to the court a proposed procedure  whereby
the Defendant would be required to initially conduct all
necessary sampling and analysis to determine the extent of the
contamination and the appropriate corrective action.  After
submission of the sampling and analysis, the Defendant  would be
required to submit to EPA plans for implementing the corrective
action.  The process should be similar to that the  United States
would insist upon in a Consent Decree  or an administrative order.
For further assistance, please see EPA's proposed rule  for
corrective action, 40 C.F.R.  Part 264, Subpart S.  55 Fed. Reg.
30798 (July 27,1990).   Without such guidance from EPA,  the court
is likely to issue a vague order that  may prove difficult to
enforce.

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B. Section 3013 of RCRA.

   Section 3013 gives the United States the authority to compel
the performance of monitoring, testing, analysis, and reporting
by the owner/operator of a facility if the United States can
establish that the presence of any hazardous waste at the
facility or the release of any waste from such facility may
present a substantial hazard to human health or the environment.
In addition, the United States can recover costs incurred by the
Agency in performing any monitoring, testing, or analysis that
the owner/operator failed to perform in a satisfactory manner.

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    SECTION 7003 OF RCRA

A. The Statute:  Section 7003(a)  of RCRA,  42 U.S.C. § 6973(a),
provides that:

        upon receipt of evidence that the  past or present
        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  Administrator
        may bring suit on behalf of the United States in
        the appropriate district court against any person
        (including any past or present generator, past or
        present transporter, or past or present owner or
        operator of a treatment,  storage or disposal
        facility) who has contributed or is contributing
        to such handling, storage,  treatment,
        transportation or disposal  to restrain such
        person from such handling,  storage, treatment,
        transportation, or disposal, to order such person

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        to take such other action as may be necessary, or
        both ....

B. Relationships to other statutes.

   1.  CERCLA Section 106(a) also vests EPA with the power to
seek injunctive relief where an "imminent and substantial
endangerment" exists.  However, this would only extend to
situations involving hazardous substances, while Section 7003 of
RCRA applies to "solid wastes," which are not necessarily
hazardous substances.

   2.  Section 3008(h) of RCRA does not require proof of an
"imminent and substantial" endangerment, and to this extent is
broader than Section 7003(a).  However, Section 3008(h) applies
only to hazardous wastes and hazardous waste constituents, which
are subsets of "solid wastes."  Also, Section 3008(h)  does not
explicitly impose liability on past or present owners, operators,
generators, or transporters, as Section 7003(a) of RCRA does.

C. Other Relief under Section 7003 of RCRA.

   1.  Several Circuit Courts of Appeals have held that Section
7003 of RCRA creates a right of equitable restitution in EPA.  In
United States v. Price. 688 F.2d 204, 214 (3rd Cir. 1982), the
Court of Appeals affirmed the district court's denial of the
United States' request for an injunction under Section 7003 of
RCRA, but suggested in dicta that EPA perform the work sought by
the injunction.  Once this was done, the court stated that
11 [reimbursement could thereafter be directed against those
parties ultimately found to be liable."  Id.  Subsequently, the
Eighth Circuit has held that Section 7003 of RCRA does provide
for a cause of action for equitable restitution by the
Government.   United States v. Aceto Aqr. Chemicals Corp.. 872 F.
2d 1373, 1382-83 (8th Cir. 1989); United States v. Northeastern
Pharmaceutical & Chemical Co.. 810 F.2d 726, 737-42 (8th Cir.
1986), cert, denied. 434 U.S. 838 (1987).

   2.  The clearest discussion of how such an action might be
prosecuted is found in United States v. Conservation Chemical
Co.. 619 F. Supp. 162, 201 (W.D. Mo. 1985), where the Special
Master (whose opinion was adopted by the court) relied on Price
to hold that EPA could recover costs incurred responding to an
imminent and substantial endangerment pursuant to Section 7003.
The Special Master also stated that joint and several liability
would be appropriate where the harm was indivisible.  Id.
However, he held that the United States had to demonstrate that
proximate cause existed:

        to maintain a cause of action under Section 7003,
        the government must show that a particular
        generator's waste (or at least waste of the same

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        type where the wastes have been commingled)  "has
        contributed or ...  is contributing" to a
        situation which may present an imminent and
        substantial endangerment to health or the
        environment.

Id.  The Special Master denied the United States' motion for
summary judgment because "there would be insufficient evidence of
causation under the factual record presented for this motion."
Id. at 201.  The Special Master also distinguished such an action
from a suit for cost recovery under Section 107 of CERCLA:

        Unlike the recovery of response costs pursuant to
        Section 107 of CERCLA, however, such cost
        recovery [under Section 7003 of RCRA] devolves
        purely from the court's exercise of equitable
        discretion and must necessarily await a full and
        detailed analysis of the equities of the case.
        Therefore,  to enter such relief at the summary
        judgment stage would be inappropriate.

Id. at 201.  The reference to the need for "a full and detailed
analysis of the equities of the case" presumably means that the
defendants could raise equitable defenses, which would obviously
complicate any litigation.

   3.  Given the broad recovery powers of Section 107 of CERCLA,
the only reason to resort to Section 7003 of RCRA for cost
recovery would be if money had been spent to remedy an imminent
and substantial endangerment that was not caused by a "hazardous
substance," but instead was caused by a "solid waste."

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        CLOSURE AND POST-CLOSURE CARE

A. Regulatory Requirement.  All RCRA treatment, storage, and
   disposal facilities must be "closed" at the end of the
   facility's active life.  40 C.F.R. Part 264, Subpart G; 40
   C.F.R. Part 265, Subpart G.  The purpose of closure is to (1)
   minimize the need for further maintenance and (2)  to control,
   minimize, or eliminate, to the extent necessary to protect
   human health and the environment, post-closure escape of
   hazardous waste, hazardous constituents, leachate,
   contaminated run-off, or hazardous waste decomposition
   products to the groundwater, surface water, or the atmosphere.
   40 C.F.R. § 264.111.  The regulations provide for two types of
   closure.  The choice between the two types is left up to the
   facility owner/operator.

   1.  "Closure in place" - This form of closure is also known as
   closure as a landfill.  The owner/operator may close a unit by
   containing the waste in the unit.  The containment will be
   accomplished through the use of a cap.  Groundwater monitoring
   wells will be installed.  If the owner/operator selects this
   option, the facility will also be subject to the post-closure
   care requirements of §§ 264.117-120 or §§ 265.117-120.  Post-
   closure care consists, in large part, of operation and
   maintenance of the cap and monitoring wells.  Please note that
   facilities subject to post-closure care must obtain a permit
   that contains provisions for corrective action.

   2.   "Clean Closure" - The owner/operator may elect to close a
   unit by removing all waste and other contaminated media from
   the area.  By doing this, the facility is not subject to the
   post-closure care requirements.  HSWA mandated that all
   facilities clean closing meet the more stringent groundwater
   monitoring standards for permitted facilities.

B. In effect, closure is the principal method by which the RCRA
   program seeks to avoid the creation of new Superfund sites
   from existing hazardous waste management operations.  As a
   result, vigorous enforcement of the closure requirements is
   critical.

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C.   Implementing a Corrective Action Program

     1.   Objectives.  The objectives of a corrective action
program are to evaluate the nature and extent of releases of
hazardous wastes or hazardous constituents; to evaluate facility
characteristics; and to identify develop,  and implement the
appropriate corrective measure(s)  to protect human health and the
environment.  In general,  this will include:
     locating the source of releases (e.g., RU's, SWMU's),
     characterizing the nature and extent of the contamination,
     within and outside of the facility boundaries,
•    identifying areas and populations impacted by the releases,
•    determining the short- and long-term, present and potential
     impact of releases on HH&E,
•    identifying and implementing interim measures to abate
     and/or control the releases or sources of contamination,
     identifying, developing, and implementing corrective
     measures to clean-up and prevent releases,
•    designing a program to monitor the implementation,
     maintenance, and performance of the corrective measures.

     2.   Components of a Corrective Action Program   Several
basic steps are common to the corrective action process.  Some
are conducted by EPA or a state, others by the owner/operator
(o/o) .

     a.   RCRA Facility Assessment (RFA).   The purpose of the RFA
is to make preliminary determinations regarding releases and the
need for further investigation and/or interim measures.  It is a
systematic identification of actual or potential releases through
examination of every SWMU.  In general, it includes:  a
preliminary review of data for information on releases;  a visual
inspection of the facility; and sampling to gather additional
evidence of a release.  At the end of the RFA we should know what
releases are present, where all the SWMUs are located, what
releases/areas need more investigation, and what interim measures
are needed.

     EPA or a state performs the RFA, but the o/o can do some
sampling and analysis under EPA/State direction.  The RFA should
be completed prior to a permit being issued.  It need not be
completed before an order is issued.

     b.   Interim Measures (IM).  Interim measures are used in
orders and permits when some action is needed immediately.
Interim measures generally stabilize, control, or limit further
releases.  They can be used at any time during the corrective
action process where there is an immediate threat or an
opportunity to get action underway.  In deciding to use interim
measures, technical feasibility, the threat to HH&E, and the
implications of deferring any activity until the RCRA Facility
Investigation/Corrective Measures Study in done, are considered.
EPA, the State, or the o/o can implement interim measures.

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     Examples of interim measures are:  removing waste;
installing a temporary cap or cover; reducing the level of liquid
in an impoundment; repairing side walls, dikes, liners;
overpacking or redrumming containers; installing a fence; posting
signs; initiating a groundwater pump-and-treat system; providing
an alternate water supply to replace contaminated drinking water;
performing expedited sampling and analysis.

     c.   RCRA Facility Investigation (RFI).   The purpose of the
RFI is to fully evaluate and characterize the nature, extent, and
rate of migration of each release, and to gather information to
support the corrective measures study.  The RFI can range from a
small specific activity to a large, complex, multi-media study.
Generally, the o/o submits a RFI Work Plan, EPA/State approves it
(after modifications, if necessary), and the o/o works according
to the approved plan and schedule.  The o/o documents all
findings in a final report.

     d.   Corrective Measures Study  (CMS).   The purpose of the
CMS is to:  identify appropriate corrective measures, determine
their likely effectiveness and feasibility in the given
circumstances, and recommend the corrective measure(s) to be
taken at the facility.  The o/o performs the CMS, and the same
pattern of CMS Work Plan submission, approval, and implementation
outlined above is usually, but not always, used here as well.
The remedies evaluated by the o/o, along with the o/o's
recommendations, are documented in a final report.

     e.   Public Involvement.  Remedies selected in the RCRA
program may be reviewed by the public on a local and national
level.  The regulatory agency's proposed remedy for a facility is
presented to the public in a Statement of Basis (SB) , and, where
applicable, the draft permit modification.  The SB, RFI and CMS
Reports, administrative record, and, where applicable, the draft
permit modification are made available for public comment.  The
public may comment on the RFI and CMS, as well as the proposed
remedy.
           (i)  Statement of Basis.   The SB provides a brief
     summary of all of the alternatives studied in the RFI/CMS,
     highlighting the key factors that led to the identification
     of the proposed remedy.  SBs prepared in conjunction with
     draft permit modifications must be drafted in accordance
     with 40 CFR 124.7.  SBs prepared in conjunction with
     enforcement orders are not required by regulation to adhere
     to 40 CFR 124.7.

           (ii) Final Decision and Response to Comments.
     Following receipt of public comments, the regulatory agency
     is required to prepare a RTC before issuing any final permit
     decisions pursuant to 40 CFR 124.15.  The RTC must be
     prepared in accordance with 40 CFR 124.17.  As a matter of
     policy, the RTC should also be prepared after the public
     comment period but before a facility starts corrective
     measures implementation under an order.

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     The regulatory agency's response to public comments and the
     remedy(ies)  selected by the regulatory agency are documented
     in the RTC.   A RTC will:  respond to comments received
     during,  or prior to the public comment period; describe the
     technical parameters of the selected remedy,  specifying the
     treatment, engineering, and institutional components, as
     well as remediation goals; and provide the public with a
     consolidated source of information about the facility and
     the chosen remedy, including the rationale behind the
     selection.

          (iii) Permit Modifications.   When doing corrective
     action under a permit, a major permit modification is
     required to incorporate the selected corrective measures.
     Such modifications provide an additional opportunity for
     public involvement, following procedures established in Part
     124.

     SBs and RTCs should be prepared when corrective action is
implemented through either a permit or enforcement order.  The SB
and RTC are similar in purpose to the Superfund proposed remedial
action plan and Record of Decision (ROD).


     f.   Corrective Measures Implementation (CMI).   During the
CMI, the chosen corrective measure is designed, constructed,
operated, maintained, and monitored.   The o/o is responsible for
the CMI, and generally submits draft and final plans and
schedules for review and approval.

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                              RCRA Facility Assessment (RFA)
                              • Hazard Identification
                                             I
                                Issuance of Enforcement Order or
                                        HSWA Permit
                         RCRA Facility Investigation (RFI)
                         • Work Plan
                         • Facility Characterization
                         • Risk Assessment
                         • Laboratory and Bench Scale Studies
                       Corrective Measures Study (CMS)
                       • Development and Screening of Remedies
                       • Detailed Analysis of Remedies
                                              I
                  Public Notification of Proposed Remedy, Administrative Record,
                        and Draft Permit Modification (where applicable)*
                                              I
                       Statement of Basis (SB)
                       • Present Proposed Remedy and Information Repository
                       • Present Discussion of Remedial Alternatives
                       • Indicate Cleanup Levels or Goals
                             Public Comment Period
                             • Public Responds to Proposed Remedy
                             • Possible Public Hearing/Meeting
                             Response to Comments (RTQ
                             • Agency Identifies Selected Remedy
                             » Agency Responds to Comments
                                    Issuance of Order/Order.
                               Amendment or Permit Modification
                          Corrective Measures Implementation (CMI)
                          • Remedial Design
                          • Remedial Construction
                          • Operation and Maintenance
                                 RCRA Corrective Action Process
*  The administrative record should be accesible to the public during the entire
corrective action process.

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LDR

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                 RCRA LAND DISPOSAL RESTRICTIONS (LDRs)

Gary A. Jonesi, Sr. Atty.     Bruce C.  Buckheit, Sr.  Counsel
Office of Enforcement         Environmental Enforcement Section
U.S. EPA                      U.S.  Dept.  of Justice
Washington, D.C.              Washington, D.C.
202-382-3072                  202-514-4079

                         March 1991
I.   IMPORTANCE OF LDR REQUIREMENTS

A.   Congressional mandate in Hazardous and Solid Waste
     Amendments (HSWA)  of 1984.   P.L. 98-616,  98 Stat. 3224.

     1.   Congress recognized that land disposal of hazardous
          waste is the least desirable method of hazardous waste
          management, and that use of advanced treatment
          technologies should be encouraged.  See, e.g.. S. Rep.
          No. 284, 98th Cong., 1st Sess. 13 (1983).

     2.   Congress also was concerned that EPA promulgate
          environmental regulations by congressionally mandated
          deadlines.

     3.   In light of these concerns, Congress required EPA to
          prohibit from land disposal all existing RCRA hazardous
          wastes according to a phased schedule, unless certain
          narrow exemptions are granted.  RCRA § 3004.  Failure
          by EPA to promulgate LDR regulations by the specified
          dates results in the automatic prohibition on land
          disposal of such wastes by operation of "hammer"
          provisions in the statute.

     Statutory Prohibition Effective Dates

     o    November 8, 1986:   Dioxin-containing RCRA hazardous
                              wastes F020-F023, F026-F028

                              Solvent-containing RCRA hazardous
                              wastes F001-F005

     o    July 8,  1987:       "California List" hazardous wastes
                              (i.e.. with the exception of the
                              halogenated organic compound  (HOC)
                              wastes, all are liquid hazardous
                              wastes)

     o    August 8, 1988:     At least 1/3 of all listed RCRA
                              hazardous wastes  ("First Third")

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                              Above solvent and dioxin wastes
                              going to injection wells

     o    November  8,  1988:   Contaminated soil and debris from
                              CERCLA  (§ 104 and § 106) response
                              actions and RCRA corrective actions

     o    June 8, 1989:       At least 2/3 of all listed RCRA
                              hazardous wastes ("Second Third")

     o    May 8, 1990:        All remaining listed RCRA hazardous
                              wastes  ("Final Third" or "Third
                              Third")

                              All wastes regulated under RCRA by
                              characteristic  (i.e.. corrosivity,
                              ignitability, reactivity, and EP
                              toxicity)

B.   EPA's High Priority Emphasis on LDR Requirements

     1.   EPA Promulgation of LOR Regulations - regulations can
          be found  primarily in 40 C.F.R. Part 268.

     2.   Significant  LDR Final Rules:

          -    Nov. 7,  1986 LDR Framework and Solvents and
               Dioxins Final Rule (51 Fed. Reg. 40572)

          -    June 4,  1987 Corrections to Nov. 7, 1986 Final
               Rule (52 Fed. Reg. 21010)

               July 8,  1987 "California List" Final Rule  (52 Fed.
               Reg. 25760)

          -    July 26, 1988 Underground Injection Restrictions
               Framework/Solvents and Dioxins Final Rule  (53 Fed.
               Reg. 28118)

          -    August  16, 1988 Underground Injection Restrictions
               "California List/First Third"  Final Rule  (53 Fed.
               Reg. 30908)

               August  17, 1988 "First Third"  Final Rule  (53 Fed.
               Reg. 31138)

          -    February 27, 1989 Final Rule Rescheduling  Land
               Disposal Prohibition for Certain Multi-Source
               Leachate (54 Fed. Reg. 8264)

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               May 2, 1989 Final Rule Modifying Certain "First
               Third" Treatment Standards Expressed As "No Land
               Disposal" (54 Fed. Reg. 18836)

               June 14, 1989 Underground Injection Restrictions
               "First Third" Final Rule (54 Fed. Reg. 25416)

               June 23, 1989 "Second Third" Final Rule (54 Fed.
               Reg. 26594)

          -    August 25, 1989 Corrections to June 14, 1989
               Underground Injection Restrictions "First Third"
               Final Rule (54 Fed. Reg. 35328)

               September 6,  1989 Corrections to August 17, 1988
               "First Third" Final Rule and May 2, 1989 Rule (54
               Fed. Reg. 36967)

               June 1, 1990 "Third Third" Final Rule  (55 Fed.
               Reg. 22520)

               June 13, 1990 Corrections to September 9, 1989
               Corrections (55 Fed. Reg. 23935)

               January 31,  1991 Corrections to "Third Third"
               Final Rule (56 Fed. Reg.. 3864)

     3.   Large number of LDR enforcement cases - Approximately
          half of all newly commenced federal RCRA enforcement
          actions contain at least one LDR count.  Recent LDR
          Enforcement Targeting Initiative announced on February
          22, 1991 involves filing of eight (8) civil judicial
          actions and 20 administrative actions in a nationwide
          crackdown on LDR violators.  Included in the Initiative
          was a proposed civil judicial settlement in U.S. v. E.
          I. Du Pont de Nemours (D. N.J. filed Feb. 22, 1991),
          requiring Du Pont: to pay a $1.85 million penalty; to
          perform a compliance audit to ensure that the Chambers
          Works facility and all other Du Pont facilities
          nationwide that shipped prohibited wastes to the
          facility are in compliance with the LDRs; and to
          complete a pollution prevention study.

II.  TYPES OF LDR VIOLATIONS

A.   Violations of BDAT-Based Treatment Standards  (§§ 268.40-43)

     1.   Under RCRA § 3004(m), EPA is required to promulgate
          regulations specifying levels or methods of treatment
          which substantially reduce the toxicity or mobility of
          RCRA hazardous wastes and their hazardous constituents.
          These "treatment standards" are based on the

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          performance of the "best demonstrated available
          technology" (BOAT), and prohibited wastes or their
          treatment residues are eligible for land disposal if
          they comply with the BDAT-based standards.

     2.   EPA's treatment standards are expressed as
          concentration levels, specified technologies (or group
          of technologies, i.e., a "treatment train"), or both.
          Land disposal of prohibited wastes in violation of
          these treatment standards is a high priority violation.
          The Agency may impose penalties and seek injunctive
          relief, including requiring that the wastes be removed
          from the land and properly treated.

B.   Storage Prohibition (§ 268.50)

     1.   Purpose is to prohibit the use of long-term storage to
          circumvent treatment requirements imposed by the LDRs.
          55 Fed. Reg. 22520, 22673.

     2.   No firm time limit has been established.  Prohibited
          wastes may be stored as long as necessary if such
          storage is "solely for the purpose of the accumulation
          of such quantities of hazardous waste as necessary to
          facilitate proper treatment, recovery, or disposal."
          No specific volume limitation has been determined by
          EPA to be appropriate in all cases.  What quantities
          are "necessary" has not been litigated.

     3.   If prohibited wastes are stored beyond one year, the
          owner/operator has the burden of proving  (in the event
          of an enforcement action) that such storage is for the
          allowable reason.  Prior to one year, EPA maintains the
          burden of proving that storage has occurred for the
          wrong reason.  The burden-of-proof allocation has been
          upheld in Hazardous Waste Treatment Council v. EPA. 886
          F.2d. 355 (D.C. Cir. Sept. 15, 1989)  ("HWTC_III") (EPA
          can make prima facie case for unlawful storage by
          producing evidence of storage for greater than one
          year).

     4.   To aid in determining how long wastes have been stored,
          § 268.50 imposes certain marking and labeling
          requirements.  Many storage violations have involved
          the failure to properly mark and label tanks and
          containers regarding their contents and date of
          placement into storage.

     5.   Intent is not a critical factor in determining
          liability under § 268.50.  Objective factors such as
          the type and amount of waste in storage, and the time
          in storage, are key factors in interpreting this

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          provision.   However,  intent may be relevant in
          determining what type of relief,  if any,  to seek in a
          civil or criminal enforcement action.

C.   Dilution Prohibition (§ 268.3)

     1.   Dilution as a substitute for adequate  treatment is
          generally prohibited.

     2.   Determination as to whether dilution is  impermissible
          is very fact-sensitive and often involves substantial
          engineering and/or chemical analyses of  waste
          management operations.

D.   Waste Analysis and Recordkeeping (§ 268.7)

     1.   In order to implement the LDR requirements and ensure
          that only eligible wastes are land-disposed,  EPA has
          established in § 268.7 a comprehensive waste analysis,
          tracking, and recordkeeping system for restricted
          wastes.  These requirements are similar  to the manifest
          requirements in that they provide a "cradle to grave"
          system for tracking restricted wastes  from generation
          to disposal.

     2.   Section 268.7 requires,  inter-alia, that generators
          determine whether their wastes are restricted, and that
          generators maintain documentation of such
          determinations.  Generators must also  send with each
          offsite shipment a notification and/or certification
          that informs those accepting the waste of the
          applicable LDR requirements.  Treatment,  storage and
          disposal facilities must maintain such records and
          submit notifications/certifications with any offsite
          shipments of restricted wastes.  Also, treatment and
          disposal facilities must periodically test their
          restricted wastes to assure that the treatment
          standards have been met.

     3.   Approximately 2/3 of all newly commenced LDR
          enforcement actions currently contain §  268.7 claims.
          A particularly serious type of § 268.7 violation
          involves the deliberate misclassification of wastes to
          avoid compliance with LDRs.  See e.g.. U.S. v.
          Envirosure Management Corporation et al.. (W.D. N.Y.
          Feb. 13, 1990)  (18-count indictment alleging, inter
          alia, unlawfully changing "F-solvent"  classifications
          to "D-wastes" with intent to circumvent  impending LDR
          requirements).

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III. ENFORCEMENT  LITIGATION ISSUES

A.   LDRs do not  apply unless waste is hazardous as generated.
     Thus, it  is  very important to determine if waste is
     hazardous at "point-of-generation," which is when wastes
     first meet a listing description or first exhibit a
     characteristic.  40 C.F.R. § 261.3(b).  Look at facility
     Waste Analysis Plans, if available, to aid in determining
     which sampling and testing protocols are used at the
     facility.

     1.   Listed  wastes - knowing the types of chemicals in the
          waste is not enough; to demonstrate that a waste meets
          a listing description, the government may need
          information about the source of the waste, the type of
          equipment used to generate it, the process used to
          generate the waste, and/or the industry generating the
          waste.

     2.   Characteristic wastes - test data or process knowledge
          is needed to demonstrate a characteristic.  Chain-of-
          custody, representativeness of sampling, and laboratory
          quality assurance/quality control issues may arise.

     3.   Make sure no exemptions or exclusions apply.  See.
          e.g. . 40 C.F.R. §§ 261.3 and 261.4.

B.   Some wastes  have been granted extensions to the LDR
     effective dates and some wastes have more stringent
     treatment standards than others.  Thus, it is important to
     identify  which types of prohibited waste are being managed.
     Reliance  upon manifests alone may not be sufficient.

C.   A common  waste management scenario involves the shipment of
     wastewaters  containing restricted listed hazardous wastes to
     a treatment  facility.  Under the "mixture rule,"  40 C.F.R.
     § 261.3(b),  if these restricted wastes are mixed with other
     wastewaters,  the entire mixture is restricted.  Pursuant to
     the "derived from" rule, 40 C.F.R. § 261.3(c)(2)(i), any
     sludges generated during the treatment of these wastes are
     also restricted.  Thus, in this example, the BDAT-based
     treatment standards would apply to the disposal of the
     sludge and ordinarily this would require more than simple
     land disposal of the sludge.

     A comparison of BDAT-based treatment standards for the
     listed waste is required to determine if land disposing the
     sludge is a  violation of the LDRs.  Moreover, the treatment
     plant may have accepted the very same chemical, generated
     under circumstances where the chemical is not restricted,
     e.g.. under  the 40 C.F.R. § 261.3(a)(2)(iv) "dilute spent

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     solvent mixture rule .exemption," or from a generator with a
     40 C.F.R.  § 268.5 "case-by-case extension."  Where the
     wastewaters received at some times are not restricted, but
     contain the chemical that is at issue in the LDR case, it
     may be necessary to attempt to correlate the data showing
     exceedances of the treatment standards with delivery of
     specific listed hazardous wastes to the treatment plant.
     This may require substantial process engineering
     information.

     If the effluent from the treatment plant is discharged into
     an evaporation pond, the LDR treatment standards would
     apply.  However, by virtue of an exclusion for permitted
     NPDES discharges, 40 C.F.R. § 261.4(a)(2), the LDR treatment
     standards do not apply to the actual point source discharges
     that are subject to regulation under a Clean Water Act NPDES
     permit.

D.   In proving unlawful disposal claims (§§ 268.40-43), make
     sure wastes are placed into units that are clearly forms of
     land disposal.  Tanks and containers are not land disposal
     units and it is often difficult to distinguish between in-
     ground (concrete) tanks and certain land disposal units
     (e.g.. concrete-lined waste piles or surface impoundments).
     A recent EPA administrative case may help to distinguish
     between such units.  In the Matter of. Koppers, Inc.. RCRA
     3008 Appeal No. 88-4 (March 21,  1990) (case on appeal as
     Beazer East. Inc. v. EPA. No. 90-2753 (E.D. Pa. filed April
     20, 1990).

E.   Many State RCRA claims may relate closely to Federal LDR
     claims.  For this reason, it is important to review State
     enforcement efforts at the facility that is the subject of
     the LDR claim.  In addition, since all LDR wastes are also
     RCRA wastes, State RCRA enforcement records are the source
     of much useful information regarding the nature and quantity
     of wastes generated or disposed of by the facility.

F.   EPA has provided for numerous variances, extensions, and
     exemptions in the LDR program.  These mechanisms are not
     provisions that EPA enforces per se.  Rather, they can be
     viewed as alternative options for complying with the LDR
     requirements.  They are alternatives to simply treating
     wastes in compliance with the specified treatment standards
     and prohibition levels.

     a.   National Capacity Variances (Subpart C)
     b.   Case-by-Case Extensions (§ 268.5)
     c.   Equivalent Method Variances (§ 268.42(b))and
          Treatability Variances (§ 268.44)
     d.   "No Migration" Exemptions (§ 268.6)
     e.   Surface Impoundment Treatment Exemptions  (§ 268.4)

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IV.  IMPACT OF LAND DISPOSAL RESTRICTIONS ON CLEANUPS

     The LDR  requirements  also may have a significant impact upon
     site cleanup  actions  arising under both CERCLA  ("Superfund")
     and RCRA (i.e.,  RCRA  closures and corrective actions).

A.   Prospective Nature of the LDR Program

     The LDR  program is prospective in nature.  Thus, the LDR
     program  does  not require that wastes be exhumed from the
     land if  such  wastes were disposed prior to applicable LDR
     effective dates.   However, active management of previously
     disposed wastes after an LDR effective date may require
     compliance with at least some Part 268 provisions.

B.   Determining When LDR  Requirements Are Legally Applicable

     March 8,  1990 National  Contingency Plan outlines EPA
     interpretation regarding when LDR requirements apply at
     cleanup  sites.   55 Fed.  Reg. 8666, 8758-8764 (relevant pages
     attached,  together with graphics that attempt to illustrate
     how some of the NCP's "LDR applicability" discussion
     operates).

C.   CERCLA Waivers

     In addition to the variances, extensions, and exemptions
     listed above,  wastes  generated during on-site CERCLA
     remedial actions may  be eligible for one of six specified
     Superfund waivers,  provided that protection of human health
     and the  environment is  assured.  CERCLA § 121(d)(4).
                                8

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 8758
Federal Register / Vol. 55. No. 46 / Thursday. March 8.-1990 / Rules  and Regulations
 requirements. Rather, given the need to
 ensure finality of remedy selection in  •
 order to achieve expeditious cleanup of
 sites, and given the length of time often
 required to design, negotiate, and
 implement remedial actions. EPA
 believes that this is the most reasonable
 interpretation of the statute.
   As EPA discusses elsewhere in this
 preamble, one variation to this policy
 occurs when a component of the remedy
 was not identified when the ROD is
. signed. In that situation. EPA will
 comply with ARARs in effect when that
 component is identified (e.g- during
 remedial design), which could  include :
' requirements promulgated both before
 and 'after the ROD was signed. EPA
 notes that newly promulgated  or
-modified requirements may directly
 apply or be more relevant and.,
 appropriate to certain locations, actions  •
' or 'contaminants than g»jgrtpg  standards
 and, thus.' may be potential ARARs for -
                '
.: : • Hit important to note that a policy of
 freezing ARARs'at the -time of the ROD
.-feigning wffl not sacrifice protection of
 human health and the'"enviroanient.
• because the -remedy wffl Iferevtewed for
.protectiveness every 'fjy£yea«,' '•'
 considering new or modified1 yj.
 requirements at that point or more
 frequently, if there is reason to believe
ithat the remedy Is no longer protective
 of health and environment
   In response to the specific comments
 received, EPA notes that under this
•policy. EPA does not intend that a
; remedy .must be modified solely to
•.attain a newly promulgated or modified
'.requirement Rather, a remedy-must be
 modified if necessary to protect human
.health .and the environment newly
 promulgated or modified requirements
 contribute to that evaluation of       :
 protectiveness. For-example/a new
 requirement for a chemical at a site may '
 indicate that the cleanup .level selected
 for the chemical corresponds to a cancer
 risk of IQ-'rather than 10^5, **:;:> :
 originally thought The original remedy
1 'would then have to be modified because
 it would result in exposures outside the
 acceptable risk range t&ai generally
 defines what Is protectrvfe >.-..
   This policy" that 'newty-promulgated or :
•'modified requirements should be .
 considered during protectiveness
 reviews of the remedy, but should not
 require a reopening of .the ROD during
 implementation every time a new state
 or federal standard is promulgated or
 modified, was discussed hi the preamble
 to the proposed rule (S3 FR at 51440) but •
 not in the rule section Itself. For the
 reasons outlined above. EPA believes
 'hat this concept is critical to the :
 .xpeditious and cost-effective
                          accomplishment of remedies duly
                          selected under CERCLA and the NCP.
                         ' and thus is appropriate for inclusion in
                          § 300.430(n{l)(i'){B) of the final NCP.
                          This will afford both the public and
                          implementing agencies greater clarity as
                          lo when and hoxv requirements must be
                          considered during CERCLA responses.
                          and thus will allow the CERCLA
                          program to carry out selected remedies
                          with greater certainty and efficiency. Of
                          course, off-site CERCLA remedial
                          actions are subject to the substantive
                          and procedural requirements of
                          applicable federal, state, and local laws
                          at the time of off-site treatment storage
                          or disposal
                            Final rule: EPA is adding the.
                          following language to the rule at
                          §300.430[f)(lU|i)(B):.
                         , . (B) On-«Ue remedial actions selected In a
                          ROD must attain those ARARs.that are
                          Identified at the time of JIOD signature or  .
                         .^proyide'ground*' for Invoking a waiver under
                                                        ,. •  ,
                                         .               ted or
                          modified after ROD slgnatBtre"must be  L* * '
                          attalaedlorwaivad}.oi|Jy.-
 •'• Response to coaunentsfEPA received
 .many comments on its discussion of
 •when RCRA requirements can be
 applicable to CERCLA response actions.
 On the issue, of compliance with RCRA
 in general.-jnost of these commenters
 argued that RCRA requirements are not
 intended for site cleanup actions, that
 such compliance will result In delays
 and that  RCRA requirements are often
 unnecessary to protect human health
 and the environment at CERCLA sites.
 Other commenters argued, however.
 .-.that EPA is trying to avoid compliance
 • with RCRA requirements,'Most of the
 comments, however, focused on when
 LDRs are applicable to CERCLA actions
 and on EPA's discussion-of what actions
 associated with remediation trigger
 LDRs...
  .-: Some commenters opposed EPA's
 . interpretation of "hind disposal" or
 "placement" as too lenient believing
 that EPA is trying to avoid compliance
 with RCRA laws, particularly LDRs.
 These commenters argued that LDRs
 should be applicable when hazardous
 wastes are managed, excavated, or
 moved in any way. One argued that
 ARARs waivers are available to address
 situations when the LDR levels cannot
 be achieved and should be used as
  necessary, rather than trying to
  narrowly define the universe of ARAKs
  to'avoid.waivers. This eommenter was
  also concerned with EPA's use of the
  term "unit" calling it an inappropriate
  concept  for Superfund sites because it

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             Eedexal Register / Vol. 55. No. 46  /  Thursday. March  8. 1990  /  Rules and  Regulations
                                                                                                           8759
 will allow the excavation and
 redeposition of waste within very large
 areas without ever meeting RCRA
 design and operating standards and
 LDR. One conunenter asserted that EPA
 concerns on LDRs stem from an
 unjustifiable belief that LDR cleanup
 levels cannot be achieved.
   Other commenters believed that the
 definition of "placement" should
 provide more flexibility. One asserted
 that replacement of treated residuals in
 the proximate area should not constitute
 placement. The commenter argued that
 Congress intended to address.
 preventively or prospectively. the
 original act of disposal, and that an
 innocent government or public entity
 should not be required to assume the
 entire environmental responsibility of
 the original disposers. The commenter
 also argued that establishing that
 replacement of treated waste trigger*
 LDRs will be a serious disincentive to
 treating wastes. Some commenters
 argued that LDR* should not be relevant
 and appropriate where the CERCLA
 waste to be disposed on land rs merely
 similar in composition to RCRA banned
 waste.
  Other commenters argued that LDRs
 are inappropriate for CERCLA remedial
 actions. They noted an inherent conflict
 between LDRs. which require treatment
 to BOAT levels, and the CERCLA
 process, and claimed that  LDRs will
 supplant CERCLA's "carefully.
 articulated and balanced approach to
 remedy selection." Commenters
 asserted that compliance with LDRs will
 create technical problems because of
 differences between CERCLA wastes
 and those evaluated for LDRs. The
 solutions recommended by these
 commenters primarily focused on
 narrowing or eliminating RCRA
 applicability, but included suggestions
 for creating treatability groups for
 CERCLA-type waste and seeking
legislative waivers from LDRs. e.g* •
waiver from LDRs for Soperfund action*
at NFL sites.
  One commenter believed that the.
concept of "uniT t»sjstreadfly
 transferable to TTfry^ sites doe to the
age and former usages'saany of the site*
undergoing n iniiiHartsa Given the
ramifications of LDBst m« onmrnrntir
argued, it may be mote reasonable to
create a presumption of treating the
entire site as one "unit" even if
remediation incndes a series of
operable units.
  Some comments were received oa
EPA's statements on rftnti^^ftttng
waste. One stated that consolidatioa of
small amounts of waste across units
should not be considered placement.
because that will lead to less
environmentally sound and less cost-
effective solutions, particularly if LDRs
are triggered. Another recommended
that EPA should allow consolidation of
small volumes of waste anywhere on-
site, for purposes of storage or
treatment, without triggering otherwise
applicable RCRA standards. Another
commenter requested clarification that
consolidation within a unit included
normal earthmoving and grading
operations.
  1. Actions constituting land disposal.
EPA disagrees with commenters who
considered EPA's interpretation of the
definition of "land disposal" under
RCRA section 3004(k) to be too narrow.
These commenters argued that any
movement of waste should be
considered "placement" of waste, and
thus "land disposal" under RCRA
section 3004(k).
  The definition of 'land disposal" is
central to determining whether the
RCRA LDRs are applicable to a
hazardous waste which is being
managed as part of a CERCLA response
action, or RCRA closure or corrective
action. The term "land disposal" is
defined under RCRA section 3004(k) as
including. bu| not limited to, "any
placement of such hazardous waste in a
landfill,  surface impoundment, waste
pile, injection well, land treatment
facility, salt dome formation, sak  bed
formation, or underground mine or
cave." The terms "landfill", "surface
impoundment" and the others, refer to
specific types of units defined under
RCRA regulations. Thus. Congress
generally defined the scope of the LDR
program as the placement of hazardous
waste in a land disposal unit, as those
units an defined under RCRA
regulations.
  EPA has consistently interpreted *ht
phrase "placement • • •  m" one of
these land disposal units to mean the
placement of hazardous wastes into on*
of these units, not the movement of
waste within a unit. See e^. Si FR40S77
(Nov. 7.1966) and 54 FR 41566-67
(October 10, 1989)(supplemental
proposal of possible alternative
interpretations of "land disposal"). EPA
believes that its interpretation that the
"placement * *  * in" language refers to
a transfer of waste into a unit (rather
than simply any movement of waste) is •
not only-consistent with a
straightforward reading of section
3004(k). but also with the Congressional
purpose behind the LDRs. The central
concern of Congress in establishing the
LDR program was to reduce or eliminate
the practice of disposing of untreated
hazardous waste at RCRA hazardous
waste facilities. The primary aim  of
Congress was prospective rather than
directed at already-disposed waste
within a land disposal unit See 51
40577 (Nov. 7.1986). Moreover.
interpreting section 3004(k) to req.
application of the LDRs to any
movement of waste could be difficult to
implement and could interfere with
necessary operations at an operating
RCRA facility. For instance, when
hazardous waste is disposed of in a land
disposal unit at an operating RCRA
facility, there may well be some
"movement" of the waste already in the
unit. Under the commenters' approach.
such movement without p re treatment of
the moved waste could be in violation of
the LDRs. Thus, under the commenters'
interpretation, virtually no operational
activities could occur at any RCRA land
disposal unit containing hazardous
waste without pretreatrnent of any
waste disturbed by the operation:
clearly an infeasible approach.
  EPA also believes that this
interpretation of section 3004(k) is
supported by the legislative history for
this provision (see 129 Cong. Rec. H6139
(Oct & 1963)(statement of Rep. Breaux)).
and by the Congressional choice to
define land disposal" more narrowly
for purposes of application of the LDRs
than the already-existing term
"disposal", which has a much broader
meaning under RCRA Under RCP'
section 1004(3), the term "dispos;
very broadly defined and include.
"discharge, deposit, injection, dumping.
spilling, leaking, or placing** of waste
into or on any land or water. Thus.
"disposal" (in a statutory, rather than
the regulatory subtitle C meaning of the
term) would include virtually any
movement of waste, whether within a
unit or across a unit boundary. In fact
the RCRA definition of "disposal" has
been interpreted by numerous courts to
include passive leaking, where no* active
management Is involved (see, e.g.. US.
v. Waste Industries. Inc.. 734 F.2d 159
(4th Cir.  1984)). However. Congress did
not use the term "disposal" as its trigger
for the RCRA land disposal restrictions.
but instead specifically defined the new.
and more narrow, term "land disposal"
in section 3004(k). The broader
"disposal" language continues to be
applicable to RCRA provisions other
than those in subtitle C, such as section
7003. Thus, for the reasons outlined
above, EPA believes that the existing
interpretation, thai movement of waste
within a unit does not constitute "land
disposal" for purposes of application of
the RCRA LDRs. is reasonable.
  With respect to the commenter who
asked whether normal earthmovir
grading operations within a land
disposal unit consthnte "placemei.

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 8760	Federal Register / Vol. 55,  No. 46 / Thursday. March 8. 1990 / Rules and Regulations
 the unit", under EPA's interpretation of
 RCRA section 3004(k). such activity
 would not be "placement into the unit"
 and thus the RCRA LDRs and other
 subtitle C disposal requirements would
 not be applicable (nor would the
 requirement to obtain a permit under
 RCRA or minimum technology
 requirements in RCRA section 3004(o)
 apply).
  Given this interpretation of section
 3004(k). EPA does not believe that it.is
 necessary to invoke ARAR waivers of
 LDRs for any movement of waste within
 a unit, which was the alternative
 suggested by the commenters. Nor does
 EPA believe that  the widespread use of
 such waivers would be practical or
 desirable. 54 FR 41568-69 (October 10.
 1989).
  EPA also does not fully agree with the
 commentera who argued that the RCRA
 concept of "unit" does not apply to
 CERCLA sites. The commentera who
 criticized the application of the RCRA
 "unit" to the CERCLA area of
 contamination for purposes of section
 3004(k) believed it to be either too
 broad, allowing large areas to escape
 the LDRs, or too narrow, not allowing
 entire CERCLA sites to be considered a
 single "unit". In contrast to hazardous
 waste management units at a RCRA
 facility, CERCLA sites often do not
 'nvolve discrete waste management
 nits, but rather involve land areas on
 or in which  there can be widespread
 areas of generally dispersed
 contamination. Thus, determining the
 boundaries of the RCRA land disposal
 "unit" for which section 3004(k) would
 require application of the LDRs at these
 sites, is not always self-evident
  EPA generally equates the CERCLA
area of contamination with a single
 RCRA land-based unit usually a
 landfill. 54 FR 41444 (December 21.
1988). The reason for this is that the
RCRA regulatory definition of "landfill"
is generally defined to mean a land
disposal unit which does not meet the
definition of any other land disposal
unit and thus is a general "catchalT
regulatory definition for land disposal
units. As a result a RCRA "landfill"
could include a non-discrete land area
on or in which there I* generally
dispersed contamination. Thus. EPA
believes that it is appropriate generally
 to consider CERCLA areas of
contamination as a single RCRA land*
based unit or "landfill". However, since
the definition of "landfill" would not
include discrete, widely separated areas
of contamination, the RCRA "unit"
would not always encompass an entire
 -ERCLA site.
  Waste consolidation from different
     or AOCs at a CERCLA site are
subject to any applicable RCRA
requirements regardless of the volume of
the waste or the purpose of the
consolidation. Thus. EPA disagrees with
those commenters that asserted that
small volumes of hazardous waste at a
CERCLA site can be consolidated
anywhere on-site for storage or
treatment purposes  without
consideration of any applicable RCRA
requirements. Such  requirements may.
however, be subject to ARAR waivers in
appropriate circumstances.
  The remaining comments received
with respect to EPA's interpretation of
section 3004(k) discussed the
achievability of LDR cleanup levels.
questioned the appropriateness of
applying the LDRs to remedial actions.
and requested more flexibility regarding
the LDRs. These comments were the
basis for EPA's supplemental notice and
proposed re interpretation of section
3004(k). which is discussed below.
  In light of the numerous comments
received on the interpretation of "land
disposal" In RCRA section 3004(k). aa It
relates to removal treatment and
redeposition of hazardous wastes
generated by CERCLA and RCRA
remedial and other activities, and In
view of the important policy decision*
that RCRA LDRs pose for the CERCLA  •
and RCRA programs. EPA decided tp
separately and more fully discuss the
issue, the interpretation outlined in the
proposed NCP. and  possible alternative
interpretations of "land disposal". In a
supplemental notice to the proposed
NCP (54 FR 41566 (Oct 10.1989)). EPA
outlined several technical policy, and
legal issues concerning LDR
applicability to removal treatment and
redeposition of hazardous wastes, and
requested comment on two alternative
interpretations of "land disposal". The
first alternative would allow the
excavation and replacement of
previously disposed hazardous wastes
in the same unit or area of  '
contamination: since the same wastes
would remain in the same unit this
activity would not constitute "land
disposal". Under the second alternative.
hazardous wastes could be excavated
and redeposited either within the
original unit or area of contamination, or
elsewhere at the site in a new or
existing unit These interpretations
would allow greater flexibility In
remedial decision-making, in the context
of both CERCLA actions and RCRA
corrective actions and closures.
  On November 6 and 7.1989, EPA held
a forum on contaminated soil and
groundwater ("Contaminated Media
Forum") to provide  an opportunity for
interested groups to further address
these issues. The Contaminated Media
Forum was attended by representatives
from EPA. states, environmental groups.
Congress, and the regulated community.
A summary of the concerns raised and
suggested solutions appears in the
public docket for this rulemaking.
  2. Selection of LDR treatment
standards. Upon further examination.
EPA believes that many of the problems
discussed in the supplemental notice.
and raised by commenters. result from
treatment standards developed pursuant
to the RCRA LDR program that are
generally inappropriate or infeasible
when applied to contaminated soil and
debris. As discussed in the October 1989
notice. EPA's experience under CERCLA
has been that treatment of large
quantities of soil and debris containing
relatively low levels of contamination
using LDR "best demonstrated available
technology" (BOAT) is often  .
inappropriate. 54 FR 41567.41568
(October 10.1989). EPA noted that:
 Experience with the CERCLA program has
thown that many litet will have large
quantities—in Mine cases, many thousands
of cubic meter*—of toil* that are
contaminated with relatively low
concentrations of hazardous wastes. These
toll* often should be treated, but treatment
with the types of technologies that would
meet the standard of BOAT may yield little if
any environmental benefit over other
treatment based remedial options.

54 FR 41568 (October 10,1989).
Examples of these and other  situations
reflecting EPA's experience concerning
the  inappropriateness of incinerating
contaminated soil and debris are
included in the record for this rule. In
addition, as discussed below. EPA has
experienced problems in achieving the
current noncombustion LDRs for
contaminated soil and debris. Based on
EPA's experience to date and the
virtually unanimous comments
supporting this conclusion, EPA has
determined that until specific standards
for soils and debris are developed.
current BDAT standards are  generally
Inappropriate or unachievable for soil
and debris from CERCLA response
actions and RCRA corrective actions
and closures. Instead. EPA presumes
that because contaminated soil and
debris is significantly different from the
wastes evaluated in establishing the
BDAT standards, it cannot be treated in
accordance with those standards and
thus qualifies for a treatability variance
from those standards under 40 CFR
288.44.
  Accordingly, persons seeking a
treatability variance from LDR
treatment standards rorcontaminated
soil and debris do not need to
demonstrate on a case-by-case basis

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             Federal Register / Vol. 55, NO. 46  /  Thursday. March  8. 1990  /  Rules and Regulations       8761
 that BOAT standards for prohibited
 hazardous wastes are inappropriate or
 not achievable. As an alternative.
 persons seeking a treatability variance
 for soil and debris may meet the
 appropriate levels or percentage
 reductions in the currently available
 guidance (Superfund LDR Guidance
 =6A. "Obtaining a Soil  and Debris
 Treatability Variance for Remedial
 Actions".  EPA OSWER Directive 9347.3-
 06FS. July 1989). In the context of
 Superfund Records of Decision (ROD).
 this means that EPA will generally
 include such a variance in the proposed
 plan and ROD when treatment of
 contaminated soil end debris is an
 element of the remedial action. Further.
 EPA intends to issue guidance
 supplementing the Superfund Guidance
 *6A to expedite the processing of such
 treatability variances in conjunction
 with established remedy selection
 procedures.
  Treatment standards  for prohibited
 hazardous wastes are based on
 performance achievable by application
 of BOAT. 51 FR at 40578 (Nov. 7.1988).
 BOAT, however, is riot a technology-
 forcing program, nor does it always
 require the lowest possible levels of
 waste treatment achievable with any
 technology. See 130 Cong. Rec. S9178
 (July 25.1984) (Statement of Sen.
 Chaffee introducing the amendment that
 became RCRA section 3004(ra)). Rather.
 what Congress contemplated is a
 scheme whereby hazardous wastes are •
 to be treated using the technology (or
 technologies) generally  considered to be
 suitable for the waste and that
 substantially diminish the toxicity of the
 waste or substantially reduce the
 likelihood of migration. Id.; see also H. •
 Rep. No. 198,98th Cong. 1st Sess. 33; S.
 Rep. No. 284.98th Cong. 1st Sess. 18-17.
  EPA's rules developing treatment
 standards likewise recognize that the
treatment  standards be based on
appropriate technologies even If more
stringent treatment methods are
technically feasible. 51 FR at 40588-592
(Nov. 7.1986). For example. EPA has
generally based treatment standards  for
organic contaminanhfln wastewaters
 (normally  defined aa>aqueoua materials
containing less than 1* total organic
 compound (TOC) and total suspended
 solids (TSSJ) on technologies other than
 incineration (or other combustion), even
 though such organics could be treated to
 lower levels if the wastewaters were
 incinerated. This is because incineration
 (or other combustion) is not normally an
 appropriate technology for wastewaters.
 notwithstanding its capability of
 performing to lower levels than
 conventional wastewater  treatment
More generally. EPA's rules on
treatability variances recognize that
prohibited wastes be treated by
appropriate technologies. The rules thus
state that a petitioner may request a
treatability variance "where the
treatment technology is not appropriate
to the waste". 40 CFR 268.44{a).
  Similarly, treatability variances are
warranted where the applicable
numerical treatment standard for the
waste cannot be achieved. 40 CFR
268.44(a). For this reason. EPA has found
that current BOAT standards based on
noncombustion technology also warrant
a treatability variance for soil and
debris. The complex matrices often
present in soil and debris may reduce
the effectiveness of stabilization and
other noncombustion technologies in
treating these wastes. For example, the
presence of oil and grease or suifites in
the mixture may substantially interfere
with the stabilization process. More
generally, stabilization Is a complex
treatment process and its application to
unique soil and debris mixtures is not
yet well understood. EPA's development
of alternative treatment levels In the
Superfund Guidance *8A noted above
was based on available data for soil and
debris mixtures and thus Is more
tailored with respect to achievab.ility
than the existing BDAT standards for
these waste mixtures. The difference
between these levels and the existing
BDAT standards for these wastes
demonstrates the feasibility of achieving
the current BDAT standards for soil and
debris. These alternative numbers thus
support EPA's presumption that the
BDAT standards are generally
inappropriate or not achievable for soil
and debris.
  This presumption is supported by the
commenters  on the December. 1988 and
October. 1989 proposals. EPA received
numerous comments from a wide range
of commenters discussing the
inappropriateness or infeasibility of
applying BDAT standards to
contaminated soil and debris. The
principal reason given for the
inappropriateness of the current BDAT
standards was the complexity of .soil
and debris mixtures and the interference
with treatability caused by unique
matrices of contaminants in the soil and
debris. Moreover, commenters noted
that wastestream-derived BDATs have.
not been fully demonstrated for many
contaminated soils and debris and that
the presence of trace quantities of one
waste in soil and debris may
inappropriately require use of a
treatment method that would not
otherwise be applicable to the other
wastes present These comments were
further supported by comments rr.3'J  M
the Contaminated Media Forum.
  The Agency's experience also
supports this conclusion of general
inappropriateness or infeasibility of
current BDAT standards for soil and
debris. For example, as indicated above.
EPA has developed alternative
treatment levels for soil and debris in
the Superfund «6A guidance which are
based on the application of the specific
treatment technologies to soil and
debris, rather than industrial process
wastes. Thus, these alternative levels.
which are better tailored to the
treatability of the complex soil and
debris mixtures found at Superfund
sites, reflect Agency experience
concerning the  inappropriateness or
infeasibility of  current BDAT for soil
and debris.
  EPA has long indicated its intention to
develop separate treatment standards
for contaminated soil and debris
(without regard, incidentally, to the
origin of such waste, so that the
treatment standards would apply
whether the soil and debris is generated
from a CERCLA action or some other
activity). 51 FR 40577 (Nov. 7.1986).
Although the Agency has already
expended considerable effort on such
standards, it has not been able to
propose or promulgate regulations
because of the  more pressing need
implement the rest of the land disposal
prohibition statutory provisions before
the various statutory deadlines. See
RCRA sections 3004 (d). (e). and (g). EPA
does not expect that the same level of
treatment performance will be required
for soil and debris as for industrial
process wastes.
  In the interim period until EPA
promulgates these treatment standards,
contaminated soil and debris are. subject
to the same treatment standards as the
prohibited hazardous wastes that they
contain, unless a variance is appropriate
and  is approved according to.40 CFR
268.44. 53 FR at 31146-149 (Aug. 17.1988)
and  Chemical  Waste Management v.
EPA. 869 F.2d 1528,1535-46.1538-40
(D.C Cir. 1989). Where standards for the
underlying waste are based on the
performance of incineration. EPA has
granted national capacity variances for
the contaminated soils and debris
because there is insufficient national
capacity to treat these wastes. 40 CFR
26&30(c). 28&31(a)(l). 26B-32(d)(l).
268.33(b). and 268.34(d). Where BDAT
treatment standards are in effect it is
possible to petition for a treatability
variance based on the inappropriate"*"'*
of the BDAT standards to treat the
contaminated soil and debris. 40 C.
268.44(a). As discussed earlier. EPA

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8762
Federal Register  /  Vol. 55.  No. 46 / Thursday.  March 8, 1990 /  Rules and Regulations
 believes that it is unnecessary for
 petitioners (or the lead Agency in
 CERCLA response actions) to make site-
 specific demonstrations that BOAT
 standards are inappropriate for
 contaminated soil and debris. The
 numerous comments and Agency
 experience supporting a presumption
 that the BOAT standards are
 inappropriate or not achievable is
 clearly warranted at this time because
 the criteria in 40 CFR 268.44 for
 treatability variances are generally met
 for soil and debris. As a result under
 EPA's established treatability variance
 procedures (40 CFR 268.44). variance
 applications for contaminated soil and
 debris do not need to demonstrate that
 the physical and chemical properties
 differ significantly from wastes
 analyzed in developing the treatment
 standard and that, therefore, the waste
 cannot be treated to specified levels or
 by specified  methods. Petitions need
 only focus on Justifying the proposed
 alternative levels of performance, using
 existing interim guidance containing
 suggested treatment levels for soil and
 debris (Superfund LDR Guidance #8A,
 "Obtaining a Soil and Debris
 Treatability Variance for Remedial
 Actions" EPA OSWER Directive 9347.3-
 C6FS, July 1989)  as a benchmark.
  Although the presumption It that
 BOAT standards are not appropriate for
 oil and debris,  there may be spedai
 ircumstances where EPA determines
 that the existing BOAT standards are
 appropriate for contaminated soils and .
 debris at a particular site, such as where
 high levels of combustible organlcs in
 soil are present In these circumstances.
 the Agency would make a determination
 that treatment to the BDAT standards
 was appropriate and would require such
 treatment
  EPA regulations provide that
 treatability variances maybe issued on
a site-specific basis. 40 CFR 28a.44(h).l»
  " In tigbt of todayl determination, OM
application of ttua rale raqwraa ebriReatloa to tw»
mpecta.nm although EPA to I	
general pranBiptiee thM BOAT, i   ,  — _„
inappropriate or not «chlt»«M> ta» ttotlng Mtt«ad
debrU. the Agency doe* Dot Mto«v But tfrf»
pretumpdoa trigger* tk» n)MMfche«wt«Ka
procedure* (a «0 OH a*v*4(HlMBwHk to
pruumptioo. treatment tawb trill b* fatrafaMd oa
• cue-by-ciu o««U. and coaaMttn may nboll
inform*tion uuiHemMn tfut BB premrpttat It net
applicable la • ptrtioibr cm. Tfcu«. B to BPA'«
view that UM iitxpeofic. noD-fulcanldBS
proeedum • «• OK 2S&44(k) •!• «Minly
•ppraprUU. Sm SI FK MWB-J1200 (Auftut 17.
1988).
 Second. BPA doM not fciterp** Its dt* tfftOie
variant* procedm a* ta»nUt>tj raqoMne
apptiuata to daawiaamtra dial thoy CABMI OMt
                           Thus, they may be approved
                           simultaneously with the issuance of a
                           RCRA permit, the approval of a RCRA
                           closure plan, or the selection of a
                           remedy in a CERCLA response action in
                           the ROD. In the case of an on-site
                           CERCLA response action, the
                           procedural requirements of the variance
                           process do not apply. See CERCLA
                           sections 121(e)(l) and 121(d)(2). The
                           variance decision will be made as part
                           of EPA's remedy selection process.
                           during which data justifying alternative
                           treatment levels will be included in the
                           administrative record Dies, and public
                           participation opportunities and Agency
                           response to comment will be afforded as
                           appropriate under this rule.
                             In EPA's view, the Agency's
                           determination that the BOAT standards
                           are generally inappropriate for
                           contaminated soil and debris addresses
                           many of the practical concerns raised by
                           commenters in the supplemental notice
                           on the Agency's interpretation of the
                           term "land disposal". For this reason.
                           and because EPA hat had Insufficient
                           time to review and evaluate the many
                           lengthy and complex issues raised by
                           commenters OB the supplemental notice,
                           EPA is deferring any final decision to
                           modify that interpretation. (EPA will
                           respond to comments on the alternatives
                           in the supplemental notice when the.
                           Agency makes a final decision on the
                           proposed leinterpretation of land
                           disposal) Until a final decision is made,
                           the interpretation announced in the
                           preamble to the proposed NCP and
                           discussed in section 1 above will remain
                           in effect
                             Final ruler There is no rule language
                           on this issue.

                             Name: Determination of whether a
                           waste is a hazardous waste.
                             Pivposco nfc-' The piGuuible to the*
                           proposed rule discussed how to
                           determine whether hazardous waste
                           regulated under RCRA Subtitle C was
                           present at a site (53 FR 51444).
                             Response to comments: Some
                           commenters raised questions about
                           EPA's discussion about determining
                           whether a waste exhibits • hazardous
                           characteristic. One argued mat EPA
                           cannot assume a waste is not a
                           characteristic waste in the absence of
                           testing and should merefoi e adopt •
                           liberal and inclusive approach to
applicable treatment Itvcla or meUtoda.Ttiii Bnt
-«nteuc« of 40 CFR ZB8.44(h) nukei It dew that aa
  itiemM may n*ke OM of fwo danwaatratfOM to
  ilify for • variance b* Bay tfcow either Out b*
                           eaasot BMM • ttMtsMl (Uadard. or that •
                           tmtmnl BvtDoa (or tb0 Bstboa ooOHfytaf ttw
                           lUodard b buppreprtata far Ua wtte. Tfc» ftol
                           •eolene* of I 28a/M(bl idanttfyfes dtt ifcow(«| u
                           •ppticant mu«t tod*d« la U» vwiaaa >ppBc««ioa.
                           on Iti terms applla only to •npHcattoBi cabsfttcd
                           under UM Brtt after km. tfA't |imiianilliiii,.
                           bowevw. tfftft to *afl nd 
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            Federal Register / Vol. 55, No. 46  / Thursday. March 8. 1990 / Rules  and Regulations       8763
materials disposed of prior to 1980 when
those materials are managed or
disposed of today. EPA agrees with this
latter comment and believes that this
policy applies to CERCLA actions as
well. This  was also upheld in a recent
DC Court of Appeals decision. Chemical
Waste Management v. EPA. 869 F.2d
1526 (DC Cir. 1989). RCRA requirements
can apply  when the CERCLA action
constitutes treatment, storage or
disposal of RCRA hazardous waste.
Note that RCRA requirements may also
be relevant and appropriate to pre-1980
waste.
  One commenter suggested that EPA
allow consolidation, for purposes of
storage or treatment of small volumes
of wastes without triggering RCRA
standards. In response, while EPA
appreciates the concerns with meeting
substantive storage and treatment
requirements for small amounts of
waste. EPA believes that waste should
be managed according to standards
when those standards are ARARs
unless a waiver (such as for interim
measures) can be justified It should be
noted that RCRA may not be applicable
for small quantity generators, as defined
under RCRA: however, a determination
would still have to be made about
whether any RCRA requirements would
be relevant and appropriate to email
quantities.
  Final rule: There is no rule language
on this issue.
  Name: When RCRA requirements are
relevant and appropriate to CERCLA
actions.
  Proposed rule: The preamble to
proposed 1300.400(g)(2)(i). identification
of applicable or relevant and
appropriate requirements, criteria for
relevant and appropriate, stated that
RCRA requirements may be relevant
and appropriate when a waste is similar
in composition to a RCRA listed waste
(53 FR 51446).
  Response to comments: 1. RCRA
requirements as relevant and
appropriate for wastes similar to RCRA
hazardous waste. Several commentera
expressed concern that RCRA
requirements may be potentially
relevant and appropriate for waste that
is not a RCRA hazardous waste, but is
similar to a RCRA hazardous waste.
Commenten argued that  virtually any
waste or CERCLA substance Is similar
to a RCRA hazardous waste in some
way. either in chemical composition, in
toxicity, in mobility, or in persistence.
and were concerned that this policy
represented an enormous expansion of
the RCRA program.
  EPA believes that RCRA requirements
can potentially be relevant and
appropriate to wastes other than those
that are known to be hazardous waste.
For example, some information or
records must be available that identify
the source of the waste in order to
determine that the waste is a listed
hazardous waste. As a result, two
separate wastes could be identical in
composition, but only one identified as a
RCRA hazardous waste because
manifests are available that identify it
as a listed waste. RCRA requirements
would be applicable for the manifested
waste,  but not for the other, even though
the two wastes are physically the same.
EPA believes that RCRA requirements
can be  potentially relevant and
appropriate when the waste cannot be
definitively  identified as a listed
hazardous waste.
  EPA  wants to emphasize, however.
that a number of the factors identified in
{ 300.400(g)(2) should be considered in
determining whether a RCRA
requirement is relevant and appropriate.
The similarity of the waste to RCRA
hazardous waste or the presence of a
RCRA constituent alone does not create
a presumption that a RCRA requirement
will be relevant and appropriate. Nor Is
it always necessary or useful to conduct
an in-depth, constituent-by-constituent
comparison of a CERCLA waste with
RCRA hazardous wastes, because most
RCRA requirements are the same
regardless of the specific composition of
the hazardous waste. Indeed, the statute
requires attainment of those
requirements that are relevant and
appropriate under the circumstances of
the release.  Thus, the decision about
whether a RCRA requirement is relevant
and appropriate is based on
consideration of a variety of factors,
including the nature of the waste and its
hazardous properties, other site
characteristics, and the nature of the
requirement itself.
  EPA  anticipates that it will often find
some RCRA requirements to be relevant
and appropriate at a  site and others not
even for the same waste. This is
because certain waste characteristics
shared with RCRA hazardous wastes
may be more important than others
when evaluating whether a given
requirement is relevant and appropriate.
For example, the mobility of the waste,
among other factors, may be e key
concern in evaluating whether the
RCRA  requirement that the cap used in
closing a landfill be less permeable than
the bottom liner (40 CFR 28L310(aHS)) Is
relevant and appropriate. Other
properties of the waste might be more
important in evaluating the relevance
and appropriateness of other RCRA
requirements.
  2. RCRA requirements as rclevr-- am/
appropriate for mining wastes, f     I
commenters asked EPA to state
NCP or its preamble that RCRA suoiitlc
C requirements will not be relevant ;m.-i
appropriate to mining wastes. They
noted that, recognizing the unique
characteristics of mining wastes.
Congress exempted certain mining
wastes from regulation as hazardous
wastes under RCRA until EPA
completed studies on these wastes to
determine specifically whether such
regulation was appropriate. On July 3.
1986. EPA published its determination
for beneficiation and extraction wastes
which found that regulation under
subtitle C was not warranted for these
wastes, because EPA believes such
requirements. M  * * * if universally
applied, would be either unnecessary to
protect human health and the
environment technically infeasible. or
economically impracticable to
implement" (51 FR 24498.) The
commenters argue, therefore, that
subtitle C requirements, which are not
legally applicable to these mining
wastes, also cannot be relevant and
appropriate, since EPA has formally
made the determination that these
requirements are not appropriate for
such wastes.
  The commenters emphasized t)
mining waste sites differ in a nun
ways from industrial wastes sites, mey
argue that mining wastes are of
enormous volume and generally of lower
toxicity. that the sites typically cover
extremely large areas and may present
less hazard because they tend to be in
drier climates, reducing leaching
potential, or contain constituents that
are less mobile. For these reasons.
which formed the basis of EPA's
decision under RCRA. RCRA   '.
requirements would not be relevant and
appropriate for mining sites remediated
under CERCLA. Commenters requested
that EPA give guidance specifically in.
the NCP to ensure consistent decisions
on ARARs at mining sites.
  EPA agrees that RCRA requirements
for hazardous waste will not be
applicable to those mining wastes
excluded from regulation by the statute.
(Note, however, that EPA has recently
removed certain mineral processing
wastes from the mining waste exclusion.
making them subject to subtitle C. 54 FR
38592. September 1,1989; 55 FR 2322,
January 23.1990. EPA has also
promulgated regulations listing certain
wastes from mineral processing
operations as hazardous. 53 FR 354* ~
September 13.1988.) In addition. I
agrees that RCRA subtitle C
requirements will generally not be

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8764	Federal Register / Vol. 55. No. 45  /  Thursday. March 8. 1990 / Rules and Regulations
 relevant and appropriate for those
 mining wastes for which EPA has
    -.ifically determined that such
    iation is not warranted. The reason
   .nat the factors that caused EPA r.ot
 to regulate these wastes as hazardous
 include  many of the same factors that
 EPA considers in judging whether a
 requirement is relevant and appropriate
 at a particular site.
  However. EPA does not agree that
 RCRA requirements for hazardous
 waste can never be relevant and
 appropriate for CERCLA remediation of
 nuning sites. In its determination for
 beneficiation and extraction wastes.
 EPA found that "if universally applied."
 subtitle C requirements would not be
 appropriate for mining wastes. (51 FR
 24500.) However, a decision about
 whether a requirement is relevant and
 appropriate is made on a case-by-case
 basis, based on the specific
 characteristics of the  site and the
 release. There may be come sites where
 the site  circumstances differ
 significantly from those which caused
 EPA to decide that subtitle C regulation.
 is not warranted and  where certain
 requirements are appropriate and well-.
 suited to the site or portions of the site.
 In such a situation, some RCRA
 requirements may be  relevant and
 appropriate.
   ^A is developing regulations under
    .tie  D of RCRA designed specifically
   
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                        Placement Into • Unit lockxtes
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                   *««CT                  (A-107)
SEPA       Environmental  News
       FOR RELEASE  FRIDAY. FEBRUARY 22. 1991


       EPA AND DOJ  ENFORCEMENT CRACKDOWN TARGETS LAND DISPOSAL VIOLATORS

                                      Robin Woods (202)  382-4377



           The U.S. Environmental Protection Agency and the U.S. Department

       of Justice announced today a series of enforcement actions in a

       nationwide crackdown to enforce the Resource Conservation and Recovery

       Act (RCRA) ban on hazardous waste land disposal.   In that effort,  the

       Justice Department today filed eight judicial enforcement actions  in

       U.S. District Courts,  and EPA took direct administrative enforcement

       actions against 20 facilities assessing a total of over $3.5 million

       in penalties.  Today's actions include one of the largest hazardous

       waste penalties ever obtained, $1.85 million in the lodging of a

       judicial settlement with E.I. Du Pont de Nemours (Du Pont) of

       Wilmington,  Del., for violations at its Deepwater, N.J., "Chambers-

       Works" facility, New Jersey's largest hazardous waste treatment and

       disposal facility.

           The land disposal restrictions under RCRA require treatment of
       most hazardous wastes, allowing only adequately treated wastes and
       residues from treatment to be disposed of on land.  The restrictions
       apply to all persons who generate or transport hazardous waste or who
       own or operate facilities which treat, store or dispose of them.
       Through these laws and their enforcement, advanced treatment,
       recycling, waste minimization and other alternative hazardous waste
       control technologies will, wherever possible, replace  land disposal.

           EPA Administrator William K. Reilly said, "These  enforcement
       actions are  part of a continuing nationwide campaign by EPA and the
       Justice Department to stop people from  illegally putting hazardous
       wastes in the ground.   The restrictions are intended to significantly
       reduce the nation's reliance on land disposal of hazardous wastes  in
       R-30                         (more)

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order to protect  groundwater  and minimize  risks of exposure no
hazardous wastes.   The  Bush Administration  intends to ensure that
companies who comply  with  these laws  are not placed at an economic
disadvantage by those who  evade the legal  requirements."

     U.S. Attorney  General Dick Thornburgh  underscored the importance
of these enforcement  efforts:  "The actions filed today demonstrate
that the land disposal  restrictions will be rigorously enforced
throughout the nation.   Fouling of the nation's land and waters with
hazardous waste will  not be tolerated and  violators should expect that
the government will seek the  full range of  remedies, including
significant penalties,  permitted by law."

     Seven of today's lawsuits seek penalties of up to $25,000 per day
for each violation  and  injunctions requiring compliance with the land
disposal requirements and  other provisions  of RCRA.  Of the seven
cases, three involve  the actual land  disposal of prohibited wastes.
Other violations  include failure to properly analyze hazardous waste,
failure to properly notify those handling,  treating or disposing of
the hazardous waste,  and storage of waste  in excess of time limits set
by regulation.

     The eighth judicial enforcement  action is the proposed settlement
with E.I. du Pont de  Nemours  (Du Pont), requiring the payment of ?
civil penalty of  $1.85  million.  The  settlement will resolve cert,
past disposal and testing violations  of the land ban at the company s
Deepwater, N.J.,  "Chambers Works" facility.  The settlement also
requires Du Pont  to perform a compliance audit to ensure that the
Chambers Works facility and other Du  Pont  facilities nationwide that
shipped restricted  wastes  to  the facility  are currently meeting the
land disposal restrictions requirements.   Further, Du Pont has agreed
to perform certain  pollution  prevention activities designed to
identify and assess opportunities for reducing hazardous waste
generation.

     In addition, EPA took direct administrative enforcement actions
against 20 facilities,  including a facility owned by Ciba-Geigy Corp.
in Mclntosh, Ala.;  a  facility owned by B.F. Goodrich Corp. in Spencer,
w. Va., and a Boeing  Co. facility in  Everett, Wash,  (see attachment
for complete list of  facilities).  The charges against the 20
facilities range  from illegal land disposal of untreated hazardous
wastes to recordkeeping violations.

     Prior to today's actions, the United  States has brought four
civil judicial actions,  obtained one  criminal indictment and EPA has
taken over 200 administrative enforcement  actions against land ban
violators since 1987.   EPA and the states  have conducted over 24,000
inspections for land  ban violations.

R-30                           (more)

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     As part of its overall RCRA enforcement program, the United
States previously filed over 40 civil judicial cases to enforce the
Loss of Interim Status provisions of RCRA, requiring compliance with
groundwater monitoring and insurance requirements.  In addition, over
the last few years the United States has launched RCRA civil judicial
initiatives to protect the Great Lakes, to enforce the regulations
governing the management of used oil and to ensure compliance with
information requests.  Those initiatives were part of 75 judicial
enforcement actions filed since 1987.

     To date, the largest RCRA civil penalty imposed by a court was
$2.78 million in a case brought by the United States against
Environmental Waste Control, an Indiana facility, for illegal disposal
and release of hazardous waste into the environment.

     A summary of the land disposal restrictions regulations is
available to the public through the RCRA dockets located at EPA in
Washington, D.C., 401 M Street, S.W., Room 2427 Mall, phone 202-475-
9327 and in the RCRA dockets in each of EPA's 10 regional offices.

                              ###
R-30

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. D.C.  20460
                        CASES AT A GLANCE
Case Name

E.I. du Pont
de Nemours

Paul-Munroe
Hydraulics, Inc.
JUDICIAL AND ADMINISTRATIVE SETTLEMENTS

            Location            Penalty
            Deepwater,
            N. J.

            Orange, CA
$1,850,000


$60,000
                          JUDICIAL  CASES
Cablec Industrial
Cable Co.

Chaparral Steel
Co.

Columbia Mfg.
Co.,  Inc. and
MTD Products, Inc.

Grumman St.
Augustine Corp.

National Rolling
Mills, Inc.

Proteccion
Tecnica
Ecologica, Inc.

Structural Metals,
Inc.
            Marion, IN
            Midlothian, TX
            Westfield,
            MA
            St. Augustine,
            FL

            Paoli, PA
            Penuelas, P.R.
            Sequin, TX
up to $25,000 per
day per violation

up to $25,000 per
day per violation

up to $25,000 per
day per violation
up to $25,000 per
day per violation

up to $25,000 per
day per violation

up to $25,000 per
day per violation
up to $25,000 per
day per violation

-------
 0<"
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. O.C. 20460
Case Name

Allen-Morrison,  Inc.

Asea Brown Boveri  (ABB),  Inc.

B.F. Goodrich

Boeing of Everett

Charleston Naval Shipyard

Ciba-Geigy Corp.

Handy and Harman
Automotive Group,  Inc.
                      ADMINISTRATIVE ACTIONS

                                    Locat ion

                                    Lynchburg, VA

                                    Windsor, CT

                                    Spencer, WV

                                    Everett, WA

                                    Charleston, SC

                                    Mclntosh, AL

                                    Archbold, OH
New England Plating Co.,  Inc.

Nox-Crete, Inc.

Olson Wire
Products, Co., Inc.

Rapid Circuits,  Inc.

Rochester Corp.

SAIC

Stone Container  Corp.

Southwire Corporation

Umatilla Army Depot

Universal Mfg. Co., Inc.

Universal-Rundel Corp.

Western Lighting
Standards, Inc.
                                   Worcester, MA

                                   Omaha, NE

                                   Baltimore, MD


                                   Levittown, PA

                                   Culpepper, VA

                                   San Diego, CA

                                   Panama City, FL

                                   Jewett City, CT

                                   Hermiston, OR

                                   Algona,  IA

                                   Ottumwa,  IA

                                   Paris, CA
PenaIty

$133,000

$197,230

$ 32,000

$620,475

   NA

$245,100

$429,650


$139,230

$241,118

$ 25,499



$ 61,812

$ 40,000

$119,500

$244,300

$113,325

   NA

$511,535

$138,633

$150,000
NA = Not Applicable.

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                                                                            B6A
 Du Pont to  Pay
 $1.9 Million Fine
 In  Waste Case
           By ROSE GLTFELD
Staff Reporter of THE WALL STREET JOURNAL
   WASHINGTON - The federal govern-
ment  assessed  a  S1.9  million penalty
against Du Pont Co. after finding that the
company violated federal law governing
disposal of hazardous waste on land.
   The penalty, which the company agreed
to pay. was part of a series of judicial and
administrative actions brought by the En-
vironmental  Protection  Agency  and the
Justice Department.
   'These enforcement actions are part of
a continuing nationwide campaign by EPA
and the Justice Department to stop people
from illegally putting hazardous wastes in
the ground." EPA chief William  Reilly
said. "The restrictions are intended to sig-
nificantly reduce the nation's reliance on
land disposal of hazardous wastes in order
to protect groundwater and minimize risks
of exposure to hazardous wastes."
   EPA  officials said Du  Pont,  among
other things, unlawfully disposed of corro-
sive acids and toxic solvents at its Cham-
ber Works facility in Deepwater. N.J. The
settlement requires Du Pont, in addition to
the penalty, to perform an audit to make
sure  that facilities that ship  waste  to
Chamber Works  are doing  so  properly.
   Other  enforcements action included:
   -A  civil  suit filed against Grumman
Corp. that seeks a penalty of up to $25.000
a day for each of  several  alleged viola-
tions. The company is charged with failing
to determine  properly   whether  wastes
were restricted  from land  disposal and
failing  to  keep  proper records on these
wastes. It also is  accused of failing to pro-
vide  proper  notification  to  recipients of
wastes that were sent off the site for dis-
posal. In  Bethpage.  N.Y..  a  Grumman
spokeswoman said  the company doesn't
comment on pending  litigation.
   - \ <620 1T5 penalty sought against Boe-
ine Co..' which was accused of deficiencies
•in hazardous-waste training practices and
improper storage of hazardous wastes  A.
spokeswoman for  the Seattle-based air-
Saft maker said. "We feel there are por-
tions of the  penalty  that aren t justihed
and  we plan to submit more information
 to hopefully, amend the agency s  find-
   s" and  perhaps lower the  penalty.
   -A  S429.650 penalty  proposed  against
 Handv  &  Harman. which was  accused of
   aving illegally disposed of spent solvents
 and  lead-bearing  liquid.wastes  in o  a
 drainage  ditch at its Archbold. Ohio, facil

  ly'-A S245 100  penalty  proposed against
  nba-Geiey Corp.. which was accused of
  SSnTfSed w ensure that sludge gener-
  ated from its wastewater treatment sys-
  tem  was  meeting  relevant standards.
  among other violations.
     -A S2«800 penalty proposed against
   Stone  Container Corp..  which was accused
   of  having improperly disposed of certain
   wastes m lagoons.               ,„,;„«
      -A S19T230 penalty proposed against
   ABB'inc.. which was accused of having vi-
   olated notification requirements that apply
   to  shipments of  waste acid.
      All the proposed penalties  are pend-

   mgThe EPA also issued notices of noncom-
   pliance  to the Umatilla Army Depot in
   Hermiston. Ore., and the Charleston Naval
   Shipyard in South Carolina. An  inspection
   of the depot found that it classified  some
   waste incorrectly, failed to fill out proper
   notification forms and improperly stored
   certain waste for more than a year. The
   EPA said the shipyard violated certain re-
    -.rnctions on  land disposal of  waste.
      EPA officials said the agency and the
    two facilities probably will work out an
    agreement to bring the facilities into com-
    pliance  with federal  law.
       A spokesman for  ABB. a unit  of Swiss
    Swedish Group Asea Brown  Bovert AB
    said the company is looking into the EPA's
     charges and won't comment on it pending
     further review.
       Officials  at Ciba-Geigy and  Handy  &
     Harman couldn't be reached  for com
     ment.

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CURRENT DEVELOPMENTS
                                                 1943
effective long-term operation of the proposed facility. The
agency  said the additional information  it requested in its
comments should be addressed in the final impact statement
(DS-USA-J10009-UT).

             Comments On Final Statements
  EPA  said it  has  concerns with ground water  impacts.
healed cooling water impacts, waste capacity issues, and the
environmental impacts associated with continued operations
of the reactors at the Savannah River site in Aiken County,
S.C. (F-DOE-E00006-SC).
  Review of the final EIS for Bristol Street improvement,
between Warner Avenue and Memory Lane, in Orange Coun-
ty. Calif., was deemed unnecessary (F-FHW-K40171-CA).
  EPA  said it  supports  the  Tennessee  Valley  Authority's
proposal for reservoir improvement in Tennessee,  Virginia,
Georgia. Kentucky, North Carolina. Alabama, and Mississip-
pi (F-TVA-E32072-00).
  EPA  expressed concerns  about impacts to historic and
business properties concerning construction on Henlet Street
and the  Western Avenue viaduct  replacement in Knoxville
and Know counties. Tenn. The agency recommended mitiga-
tion measures to reduce minor impacts associated with noise
and non-point source pollutants (FS-FHW-E40129).
  The agency said it has no comment concerning the pro-
posed actions on the Wales Creek. Hoodoo Mountain, and
Quigg West Wilderness Study Areas in Powell and Granite
counties, Mont. (F1-BLM-J70000-MT).
  The statements on which the agency made comments were
listed in the Federal Register for Feb. 22 (56 FR 7377).
Impact Statements

DRAFT. FINAL IMPACT STATEMENTS
MADE AVAILABLE BY EPA FOR REVIEW
  A number of draft and final environmental impact state-
ments were made available for public review by the Environ-
mental Protection Agency Feb. 22.
  EPA notifies the public when  federal  agencies prepare
environmental impact statements under the National Envi-
ronmental Policy Act. Other statements  received between
Feb. 11 and Feb. 15 are listed below (56 FR 7376).
  Copies  of the statements are available for a charge from
Information Resources Press.  1700 N. Moore St., Arlington,
Va. 22209; telephone (703) 558-8270.
  For more information, contact EPA,  Office  of Federal
Activities, 401  M St. S.W., Washington, D.C. 20460; telephone
(202) 382-5075.

               Department Of Agriculture
  » U.S. Forest Service  draft (No. 910046) on Mountains
Coalbed methane gas field development project, construction
and operation, application for permit drilling, San  Juan
National Forest, Archuleta and La Plata counties, Colo.
  •• USFS final (No. 910047) on M-70  pipeline replacement
and system optimization project, construction operation and
abandonment,  right-of-way grant,  special  use permit, Ange-
les and Los Padres National Forests, Los  Angeles and Kern
counties, Calif.
  » USFS draft (No. 910051) on Stormy  II watershed/fire
recovery, Sequoia National Forest,  San Joaquin Valley  air
basin. Tulare and Kern counties, Calif.

                Department Of The Army
  » Army  Corps  of Engineers final (No. 910049) on  West
Onslow Beach  and  New River Inlet Beach (Topsail Beach),
erosion control and hurricane wave protection plan. Pender
and Onslow counties, N.C.

             Department Of Transportation
  > Federal Highway Administration draft (No. 910048) on
Snake River Canyon Highway improvement. U.S. 26/89 be-
tween Alphine Junction to Hoback Junction. Teton and Lin-
coln counties, Wyo.

            Department Of Veterans Affairs
  » Draft (No. 910050)  on Seattle-Tacoma  area national
cemetery construction. Illahee site in Kitsap County. Sultan
Site in Snohomish County, and Sea Tac and Tacoma Sites in
King County. Wash.
           Environmental Protection Agency
  > Final (No. 910045) on Neskowin Regional sanitary author-
ity waste water facilities, construction grant, Tillamook, Ore.
                 ENFORCEMENT
Enforcement

EPA. DOJ FILE ACTIONS AGAINST 28 COMPANIES;
ACTION SEEN AS CRACKDOWN ON WASTE VIOLATORS
  The Environmental  Protection Agency  and the  Depart-
ment of Justice filed eight lawsuits and 20 administrative
actions Feb. 22 in a crackdown to enforce restrictions on land
disposal of hazardous waste.
  Don R. Clay, EPA assistant administrator for solid waste
and emergency response, said the action on land disposal is
the first in a series of clampdowns on waste violators.
  "We want to send a message we're serious about this." Clay
said of the Resource Conservation and Recovery Act land
disposal restrictions. RCRA regulations allow only properly
treated wastes and residues from treatment to be disposed of
on land.
  Clay would not reveal the  focus of the next enforcement
sweep.
  The administrative and judicial cases in  the land  disposal
crackdown span 17  states and  Puerto Rico, according to
James Strock, EPA assistant  administrator for enforcement
and compliance  monitoring.  The  agency  and  the Justice
Department joined forces in the sweep for dramatic effect, he
said.
  "This demonstrates the president's commitment to strong
environmental enforcement," Strock said.
  "We  will be seeking very significant penalties  in these
cases," said Richard Stewart.  DOJ assistant attorney general
for environment and natural  resources. The amounts sought
are based on how  much  money a company saved by not
complying with RCRA plus a fine as a sanction and deterrent.
he said.
  RCRA regulations make handling of hazardous waste ex-
pensive and encourage companies to cut production of these
materials, according to Bruce Diamond,  EPA director of
waste enforcement. Clay added  that complying with RCRA
rules helps a company  prevent superfund liability.
  The agency's RCRA  program  has focused heavily in past
years on writing legislatively mandated waste regulations.
Clay said. Now, it is shifting to enforcement of those regula-
tions, he said.
3-1-91
                                                Environment Reporter

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1944
                                                                                       ENVIRONMENT REPORTER
          $1.85 Million Settlement With Du Pont
  One of the federal court actions involved a $1.85 million
settlement with E.I. du Pont de Nemours Co. The settlement
marks the third-largest amount ever assessed for charges of
violating the Resource Conservation and Recovery Act, EPA
said (U.S. v. E.I. du Pont de Nemours Co.. DC NJ. No. 91 CV
768, 2/22/91).
  The largest RCRA civil penalty, $2.78 million, was levied in
October 1990 against the owners and operators of an Indiana
landfill (EPA v. Environmental Waste Control Inc., CA 7,
No. 89-1865, 1990; 21 ER 1276). The second largest was $2.55
million against Browning-Ferris Industries in 1988, EPA said
(U.S.  v. Browning-Ferris Industries. DC MLa, No. 87-317,
1988:  19ER702).
  DOJ charged Du Pont with violating RCRA at the com-
pany's Chambers Work facility in Deepwater, N.J. The site is
New Jersey's largest hazardous waste treatment and disposal
facility, EPA said. The charges involved unlawful disposal of
corrosive acids and solvent wastes, as well as waste analysis
and record-keeping violations, according to the agency.
  Under the settlement, Du Pont must audit the New Jersey
site and company facilities nationwide  that shipped  wastes
there  to make sure they are complying with the land disposal
restrictions.
  Another suit  charged Structural  Metals Inc. of Seguin,
Texas, with dumping 3,600 tons of untreated hazardous waste
containing lead from February 1989 to  the present, Stewart
said (U.S. v. Structural Metals Inc., DC WTexas, 2/22/91).
DOJ wants the company to dig up the waste, treat  it, and
dispose of it properly, he said.
  That  case also  involved  export of  hazardous waste  to
Mexico, Stewart said. DOJ charged the  company with twice
missing the deadline for filing RCRA-required annual reports
on its exports.
  "We will be vigilant in these transboundary  issues," Stew-
art said.
  In all the judicial cases except  the Du  Pont suit,  DOJ is
seeking penalties of up to $25,000 per day for each violation
plus injunctions requiring companies to  comply with RCRA.
  As well as lodging the case against Structural Metals, DOJ
filed suit Feb. 22 against:
  »Cablec  Industrial Cable Co. of Marion,  Ind. (U.S.  v.
Cablec Industrial Cable Co., DC Nlnd, No. F91-00039);
  » Chaparral Steel Co. of Midlothian, Texas (U.S. v. Chap-
arral Steel  Co., DC NTexas);
  » Columbia Manufacturing Co. and MTD Products Inc. of
Westfield, Mass. (U.S. v. Columbia Manufacturing Co., DC
Mass, No. 91-30044-F);
  » Grumman St. Augustine Corp. of St. Augustine, Fla. (U.S.
v. Grumman St. Augustine Corp., DC MFla, No. 91-141-
CIV-J-16);
  »• National Rolling Mills Inc. of Paoli,  Pa. (17.S. v. Nation-
al Rolling Mills Inc., DC EPa); and
  » Proteccion Tecnica  Ecologica Inc.  of Penuelas,  Puerto
Rico (U£. v. Proteccion Tecnica Ecologica  Inc., DC  PR).
                    EPA Complaints
  In the administrative complaints EPA levied charges rang-
ing from illegal land disposal of untreated hazardous wastes
to record-keeping violations. The 20 companies, their loca-
tions,  and amounts of the fines EPA proposed are:
  »• Allen-Morrison Inc., Lynchburg, Va., $133,000;
  > Asea Brown Boveri Inc., Windsor, Conn.. $197,230;
  »• B.F. Goodrich,  Spencer. W.Va., $32,000;
  •• Boeing of Everett, Everett. Wash., $620.475;
  »Charleston  Naval Shipyard, Charleston.  S.C.,  DO fine
proposed;
  •• Ciba-Geigy Corp., Mclntosh, Ala.. $245.100;
  »• Handy and Harman Automotive Group Inc.. Archbold,
Ohio. $429.650;
  »• New England Plating Co., Worcester, Mass., $139.230;
  »• Nox-Crete Inc., Omaha, Neb., $241,118;
  > Olson Wire Products Co., Baltimore, $25.499;
  *• Rapid Circuits Inc., Levittown, Pa., $61.812;
  »• Rochester Corp.. Culpepper, Va., $40,000;
  •-SAIC, San Diego. $119,500;
  »• Stone Container Corp., Panama City, Conn.. $244,800:
  »• Southwire Corp., Jewett City, Fla.. $113.325:
  »• Umatilla Army Depot, Hermiston, Ore., no fine proposed:
  » Universal Manufacturing Co., Algona,  Iowa. $511.535;
  » Universal-Rundel Corp., Ottumwa, Iowa. $138.633: and
  »• Western Lighting Standard Inc., Paris. Calif.. $150.000;


Administrative Actions

EPA PROPOSES $620,475 FINE AGAINST  BOEING
FOR STORAGE, TRAINING VIOLATIONS UNDER RCRA
  SEATTLE—(By a BNA  Staff Correspondent)—Boeing Co.
was fined $620,475 for alleged violations of federal hazardous
waste storage and employee training requirements under a
Feb. 14 order by the Environmental Protection Agency (In
re:  Boeing Commercial Airplanes  747/767  Division,
RCRA  Docket No. 1090-12-14-3008(a), 2/14/91).
  Boeing allegedly stored hazardous wastes  improperly,
failed to properly label containers of hazardous waste, main-
tained  incomplete inspection records,  and  inadequately
trained company employees who  handle hazardous wastes,
EPA said.
  The bulk of the proposed fine was related to charges that
Boeing failed  to provide proper training, the agency said. All
the charges related to violations of the Resource Conserva-
tion and Recovery Act.
  Boeing has 30 days to object to the EPA charges or contest
the amount of penalties, the agency said. Boeing and EPA
officials have already met to discuss the violations and
Boeing's compliance plans, the agency said.
  Boeing spokeswoman Sherry Nebel told BNA Feb. 26 the
company believes that during inspections  in 1990 and Janu-
ary 1991 EPA was not presented with all the materials in the
company's training program.  New information is likely  to
convince the agency to reduce the penalties, she said.
  The  alleged RCRA violations occurred at Boeing's com-
mercial airplane  manufacturing  plant in Everett,  Wash.,
EPA said. The  alleged  training violations account  for
$442,625 of the total proposed penalties. EPA said Boeing has
a well-established  training program but  failed to provide
hazardous waste training to all the workers at Everett who
needed it.
  At 12 plant locations, EPA  inspectors found containers of
hazardous wastes that were not securely closed, the  agency
said. The charges relating to the  improperly stored  wastes
account for $90,000 of the  total proposed fine, EPA said.
  None of the charges against Boeing involved any  serious
threat  to the environment  or Boeing employees, EPA noted.


State Enforcement

STATE COMPTROLLER'S  REPORT CRITICIZES
ENVIRONMENTAL ENFORCEMENT IN TENNESSEE
  NASHVILLE, Tenn.-(By a  BNA Special Correspondent)—
Enforcement  of Tennessee environmental regulations took
up to five years in some cases and other violations were not
corrected at all, the state Comptroller of the Treasury said in
3-1-91
                              Copyright C 1991 by The Bureau ol National Affairs. Inc.. Washington. DC.

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                   OFFICE  OF SOLID WASTE & EMERGENCY RESPONSE

                         LAND BAN HISTORICAL STATISTICS

                  FY 1987     FY 1988    FY 1989    FY  1990     FY  l'.-9l
LDR INSPECTIONS*
STATE
EPA
692 4135 6915 8489 . 1030 21,261
417 935 975 804 68 3, 199
TOTALS
1109
5070
7890
9293
1098
24,460
                   FY  1987     FY 1988    FY 1989     FY  1990    FY 1991
                                                        TOTAL
LDR VIOLATIONS
# OF FACILITIES        355
W/ LDR VIOLATIONS

%    -CATIONS
PE,   .NSPECTIONS      32.O%
            806
           15.9%
            787
           9.9%
             801
            8.6%
              71
            6.5%
         2,820
         11. 5 ••
LDR ADMINISTRATIVE  AND JUDICIAL ACTIONS  (not  incl.  informal or State  actions)
g FORMAL ACTIONS
  (EPA ONLY**)

EPA ONLY PENALTIES

AVG. EPA PENALTY

ACTIONS AGAINST
FEDERAL FACILITIES
              44
              39
              88
5848    611,008   1,220,823  8,218,239

5848      13,886      32,127     97,836
           N/A         I~2


           N/A  10,055,913

           N/A      60,215
*  [SOURCE: HAZARDOUS  WASTE DATA MANAGEMENT  SYSTEM AS OF 1-23-91]
** [SOURCE: RCRA ADMINISTRATIVE ACTION  TRACKING SYSTEM, RCRA  DOCKET]

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      CASE  STUDY EXERCISE:




DEVELOPING ENFORCEMENT RESPONSE

-------
ADDITIONAL MATERIALS

-------
CIVIL PENALTIES

-------
I ^W? I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    ^                   WASHINGTON. D.C. 2C46O
                             MAY  -3
 MEMORANDUM                                            cc"r' •=•'••'-wr'"'- •">•'•

 SUBJECT:  Civil Penalty Assessment Under RCRA

 FROM:     Glenn L. Unterberger .^.1	/ tC£.
-------
CIVIL PENALTY ASSESSMENT




      UNDER RCRA




    By Shawn Carter
                          APRIL  14,  1989

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TABLE OF CONTENTS

A. STATUTORY PROVISIONS	1

B. PURPOSE OF CIVIL PENALTY	1
  1. Deterrence and Compliance	1
  2. Impress the Seriousness of the Act	3
  3. Acheive Uniform Penalties	4

C. RCRA CIVIL PENALTY POLICY	4
  1. Summary	4

  2. Gravity Based Penalty	5

    a. Potential for Harm	5
      1) 'Potential,* Not 'Actual'	5
      2) Elements	6
        a) Civil Penalty Policy...	6
        b) Likelihood of Exposure	6
        c) Adverse Impact on RCRA	9
    b. Deviation from Requirements	11

  3. Economic Benefit of Noncompliance	13

    a. Civil Penalty Policy	13
    b. Purpose	13
    c. Elements	13
    d. Calculation	16
    e. Application	16

  4. Adjustment Factors	17

    a. In General	17
    b. Timing of Adjustment	17
    c. Good Faith	18
    d. Ability to Pay	21
    e. Willfulness	23
    f. History of Noncompliance	24
    g. Other Unique Factors	24

  5.  Multiple Penalties	25

  6 .  Multi-Day Penalties	26

  7 .  Penalty Policy Prima Facie Correct	27

D. Judiciary Not Bound by the Penalty Policy.	27

E. Judidial Penalty Assessment Outside the Context
   of the Penalty Policy	27

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       3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      /                WASHINGTON. D.C. 20460
                                                       COM^LIANCt MONITORIN
MEMORANDUM

SUBJECT: Civil Penalty Assessment Under RCRA

FROM:    Shawn Carter

THRU:    Charlie de Saillan

TO:      Glenn Unterberger
         Associate Enforcement Counsel for Waste


CIVIL PENALTY ASSESSMENT UNDER SECTION 3008 OF RCRA

A. STATUTORY PROVISIONS

   Section 3008(g) of the Resource Conservation and Recovery Act
(RCRA) provides that:

          Any person who violates any requirement of
          this subtitle shall be liable to the United
          States for a civil penalty in an amount not
          to exceed $25,000 for each such violation.
          Each day of such violation shall, for pur-
          poses of this subsection, constitute a
          separate violation.

 42 U.S.C. 6928(g) (1984).

   Section 3008(a) of RCRA authorizes the Administrator to  issue
an administrative order assessing a civil penalty for  any
violation of the Act.  Section 3008(a)(3) provides that:

          In assessing such a penalty, the Administra-
          tor shall take into account the seriousness
          of the violation and any good faith efforts
          to comply with applicable requirements.

 42 U.S.C. 6928(a)(3) (1984).

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B.  PURPOSE OF A CIVIL PENALTY

    1. Deterrence and Compliance

     a. Civil penalties  in general:

        1.  U.S.  v.  T & S  Brass and Bronze Works. Inc.. 681 F.Supp.
314, 322  (D.S.C.  1988),  aff'd in relevant part. No. 88-3531 (4th
Cir. Dec.  22,  1988)  \"Iii exercising  [its] discretion, the Court
should  give efi'oct to tlit raajor purpose of a civil penalty:
deterrence.")(Citations  omitted. )

            Cited in.  U.S.  v.  Environmental Waste Control. Inc..
No. S87-55  (N.D.  Ind.  Mar.  29, 1989).

        2.  Cellofilm Corp.,  Docket No. RCRA (3008) 11-81-0114 at
13  (Initial Decision Aug.  5,  1982, G. Harwood) ("one purpose of a
civil penalty,  if  not the primary purpose is to deter violations
of  the  law and regulations.")

        3.  Fisher-Calo Chemicals & Solvents Corp., Docket No. RCRA
(3008)  V-81-R-002  at 31  (Initial Decision Oct 8, 1982, T. Yost)
("one of the  purposes of the  imposition of a penalty in these
cases is to deter  future violation on the part of a non-
complying  firm.")

        4.  Ashland  Chemical  Co., Div. of Ashland Oil, Inc., Docket
No. IX-83-10  &  IX-83-40  at  41  (Initial Decision Jan. 21, 1984, S.
Nissen) ("[t]he purpose  of  a  penalty is to deter further
violations.")

        5.  Specialized Printed Forms, Inc., Docket No. RCRA
(3008)  11-84-0219  at 5 (Initial Decision Mar. 28, 1986, J.
Greene) ("the  statutory  scheme assumes the importance of a
deterrent  factor associated with the imposition of civil
penalties.")

     b. Deterrent  Purpose of  the Penalty Policy

        1.  Grumman  St.  Augustine Corp. , Docket No. RCRA 87-18-R at
27  (Initial Decision March  10, 1989, T. Yost) ("The posture of
this case  is  disturbing  in  as much as it involves a large
national corporation which  through it's ignorance and disregard
of  some of  the  major provisions of the Act would apparently call
for sizable penalties which are of significant magnitude to
punish  the  offender  for  the violations and to act as a deterrent
to  assure  that  it  does not  commit other violations in the
future.")

        2. Conservation Chemical Co., Docket No. RCRA (3008) VII-
82-H-035 at 17  (Initial  Decision June 3, 1983, M. Jones)  ("the
proposed guidelines  also express an  intention to provide

-------
equitable deterrence to all Respondents on the premise that the
purpose of a civil penalty is to provide a deterrent to offset
any unfair competitive advantage.")

     c. Penalties Must be Sufficiently High to Deter

       1. Conservation Chemical Co., Docket No. RCRA (3008) VII-
82-H-035 at 17-18 (Initial Decision June 3, 1983, M. Jones) (a
sum of $8000 for failure to revise a Part A permit, for storage
tank leaks and for inadequate security held to be a "sufficient
deterrence to further violations by Respondent and the Respondent
will proceed with an ongoing effort to comply with the
regulations applicable to the facility.")

       2. Bass Plating Co., Docket No. RCRA (3008) 1-82-1024 at
20 (Initial Decision Apr. 13, 1983,  G. Harwood) ("the penalty
should be set in an amount sufficient to impress upon the
Respondent, the need to manage its waste in accordance with the
standards.")

       3. City Industries, Inc., Docket No. RCRA (3008) 81-6-R-
DSE-C at 25 (Initial Decision Jan 14, 1983, T. Yost)
concluded that:
          to assess a penalty based solely on his
          ability to pay would provide no incentive
          for his remedying his existing deficiencies
          and to operate his facility in strict con-
          formity with the requirements of the law
          and the regulations in the future.  I am of
          the opinion that the penalty assessed here-
          in ($50,000) is of sufficient size to deter
          the Respondent from further violations of the
          Act and yet not of such magnitude as to repre-
          sent a sum he is absolutely unable to pay.

       4. American Ecological Recycle Research Corp., Docket No.
RCRA (3008) VIII-82-4 at 35  (Initial Decision July 1, 1984, G.
Harwood) ($8000 was determined to be "of sufficiently great
magnitude to discourage any further violations by Respondents,
and yet is not so large that Respondents would be unable to pay
it.")

     d. Compliance

       1. American Ecological Recycle Research Corp., Docket No.
RCRA (3008) VII-82-4 at 34 (Initial Decision July 1, 1984, G.
Harwood) ("the governing consideration should be to assess a
penalty that will impress upon Respondent that what is required
is full compliance and not halfway measures.")

       2. Gulf & Western Manufacturing Co., Docket No. RCRA
(3008) 1-82-1026 at 16 (Initial Decision Nov.  29, 1982, G.

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Harwood)  ("penalty must  serve the purpose of ensuring compliance
with the  law and  so  eliminating any economic incentive for not
complying.")

  2. Impress the  Seriousness of the Act.

       1.  Omaha Steel Castings Co., Inc., Docket No. RCRA (3008)
VII-83-H-051 at 26 (Initial Decision Aug. 1, 1984, S. Nissen)
(the "necessity that the Act and regulations be taken seriously"
is cited  as one of three reasons for demanding a substantial
penalty.)

       2.  Fisher-Calo Chemicals & Solvents Corp.,Docket No.  RCRA
(3008) V-81-R-002 at 31  (Initial Decision Oct. 8, 1982, T. Yost)
(the purpose of the  imposition of a penalty is to "serve notice
on the regulated  community that the Agency is serious about its
responsibility to enforce the provisions of RCRA.")

   3. Use  of the  Penalty Policy to Achieve Uniform Penalties

       1.  Kuhlman Diecasting Co., Docket No. RCRA (3008) 83-H-
004 at 11  (Initial Decision Nov. 7, 1983, T. Yost) (a penalty
policy "provides  a basis whereby a uniform penalty assessment
process can be utilized  by all the Regions within the EPA so that
there is not a disparity among the Regions in assessing penalties
for the same or similar  violations.11)  (Applying the Draft Penalty
Policy).

       See also. Willis  Pyrolizer Co., Docket No. RCRA (3008)
83-H-002 at 25 (Initial  Decision Dec.  5, 1983, M. Jones)

       2.  Country Roads, Inc., Docket  No. RCRA (3008) V-W-86-R-09
at 16  (Initial Decision Aug. 11, 1987, F. Vanderheyden)("use of
the penalty policy in formulating proposed penalties ensures
consistency through EPA's regions.")

C. RCRA CIVIL PENALTY POLICY

   1. The  Final RCRA Civil Penalty Policy (May 8, 1984) is
summarized by Sandoz, Inc., Appeal No. RCRA (3008) 85-7 at 6
n.9. (Final Decision  Feb. 27, 1987, R. McCallum):

          The Final RCRA Civil Penalty Policy of May
           8, 1984, creates a penalty calculation sys-
           tem consisting of: (1) determining a
          gravity-based  penalty for a  particular vio-
           lation; (2) considering the  economic benefit
           of non-compliance where appropriate; and (3)
           adjusting the  penalty for special circum-
           stances.  To determine a gravity-based penalty,
           a violation is placed in a grid in analytical
          matrix.  Along the horizontal axis, violations

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          are classified as "major",  "moderate",  or
          "minor" in terms of the extent of deviation
          from the applicable requirement.   Along the
          vertical axis, violations are similarly
          classified according to their potential for
          harm.   Each grid in the axis recommends a
          penalty range based on the seriousness  of  the
          violation.  Determination of a specific amount
          within a penalty range creates a gravity-based
          penalty.
             Where a violator has derived significant
          savings from its failure to comply with RCRA
          requirements, the amount of economic benefit of
          non-compliance may be calculated and added to
          the gravity-based penalty.   This sum may,  in
          turn,  be adusted upwards or downwards to reflect
          particular circumstances surrounding the viola-
          tion,  including but not limited to:  good  faith
          efforts to comply/lack of good faith; degree of
          willfulness and/or negligence; history of  non-
          compliance; or ability to pay.

   2. Gravity Based Penalty;  Calculation of the gravity based
penalty entails  evaluation of the potential for harm posed by the
violation and of the extent the deviation violates the RCRA
regulatory requirements.

     a. POTENTIAL FOR HARM

       1. "Potential" Not "Actual" Harm Measured.

         a) "The emphasis is placed on the potential harm posed
by a violation rather than on whether harm actually
occurred...violators should not be rewarded by assessing lower
penalties when the violations do not result in actual harm."
Final RCRA Civil Penalty Policy (May 8, 1984) at 6.

           1) Cellofilm Corp., Docket No. RCRA (3008) 11-81-
0114 at 6 (Initial Decision Aug. 5, 1982, G. Harwood) ("the
penalty should not depend on whether actual harm has occurred,
because it is stated, the existence of lack of harm may have been
the result of good fortune on the part of the violator, and it
should not be the policy of the EPA to reward lucky violators by
assessing lower fines.")

           See also. American Ecological Recycle Research Corp.,
Docket No. RCRA (3008) VIII-82-4 at 33 (Initial Decision July 1,
1984, G. Harwood); Fisher-Calo Chemicals & Solvents Corp., Docket
No. RCRA (3008)  V-81-R-002 at 28 (Initial Decision Oct. 8, 1982,
T. Yost).

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            2) Wheeling-Pittsburg Steel Corp., Docket No.  RCRA
 (3008) III-070 at  13  (Initial Decision Feb. 5, 1985, T.  Yost)
 ("r.he penalty policy  recognizes that in many cases, actual
 injury to man and  the environment will not exist and, therefore,
 it is the potential for such damage or injury that it
 contemplates.")

            3) Ashland Chemical Co., Division of Ashland Oil Co.,
 Docket No.  RCRA  13003) IX-83-10 & IX-83-40 (Initial Decision
 Jan. 21, 1984, S.  Nissan)  ("It is worthy cf wr.phasis thai it is
 the potential for  harm rather than actual harm tiiat is
 significant here.")

            4) Millipore Corp., Docket No. RCRA (3008) 11-85-
 0303 at 11  (Initial Decision July 30, 1986, E. Finch) (Quoting
 the penalty policy, the ALJ declared that the "issue to determine
 in assessing Respondent's  illegal closure is not whether exposure
 occurred from such closing, but rather the potential harm created
 by closing  outside the prescribed regulatory procedures.")

            5) Country Roads, Inc., Docket No. RCRA (3008) V-W-
 86-R-09 at  16 (Initial Decision Aug 11, 1987, F. Vanderheyden)
 ("The penalty policy  does  not require a finding of actual harm
 before a penalty may  be assessed, only a potential for harm.")

       2. Elements of "Potential For Harm"

         a. "The potential for harm resulting from a violation
may be determined  by:  1)  the likelihood of exposure to hazardous
waste posed by non-compliance, or 2) the adverse effect non-
 compliance  has on  the statutory or regulatory purposes or
 procedures  for implementing the RCRA program." Final RCRA Civil
 Penalty Policy (May 8, 1984) at 6.

         b. Likelihood of  Exposure

            1) In General:

             "The  principal hazards to  be guarded against are
 contamination of the  soil, pollution of the groundwater, and
 injury to humans coming into contact with the material."
American Ecological Recycle Research Corp., Docket No. RCRA
 (3008) VIII-82-4 at 33 (Initial Decision July 1, 1984, G.
 Harwood).

            2) Danger  Associated with Contact not a Factor in
 Determining the Likelihood of Exposure:

             "...The  danger posed by contact with  [Respondent's]
waste [and]...the  toxicological effects are irrelevant to the
 'likelihood of exposure' analysis once a waste is deemed
 hazardous under the regulations."  A.Y. McDonald Industries,

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Inc., Appeal No. RCRA (3008) 86-2 at' 22-3 (Final  Decision  July
23, 1987, R. McCallum) (CJO rejected an ALJ's consideration of
the potential danger of contact with brass fragments  contained at
the site.)

           3) The Threshold Level of Danger is Established by
Defining a Waste as Hazardous.

             a) "...Once a waste is deemed hazardous  under the
regulations, ics potential danger has already been established."
A.Y. McDonald Industries, Inc., Appeal No. RCRA (3008)  86-2 at
2.2-3 (Final Decision July 23, 1987, R. McCallum).

               See also, Lissner Corp., Docket No. RCRA (3008) V-
W-84-R-065 at 21 (Initial Decision July 30, 1985,  S.  Nissen)
("Inasmuch as the -vaste is listed (it) must be regarded as
hazardous as a matter of law...); Koppers Co., Inc.,  Docket No.
RCRA (3008) III-012 at 15 (Initial Decision June  21,  1983, S.
Nissen) (declaring wastes "hazardous as a matter  of law" because
substances displaying toxic constituents are listed unless
delisted pursuant to 40 CFR 261.IK a)(3).)

           4) Threat of Danger Assumed upon Demonstration of
Exposure:

              "Because [Respondents'] waste is hazardous under
the RCRA regulations, the Region was not required (nor is [the
Respondent] permitted) to look behind those regulations to
determine whether the waste is dangerous.  Although the criteria
listed in the Penalty Policy for determining likelihood of
exposure speak in terms of potential "threats" to humans,  animals
and environmental media, these criteria assume (as do the RCRA
regulations) that a threat exists once exposure is demonstrated."
A.Y. McDonald Industries, Inc., Appeal No. RCRA (3008)  86-2 at
23 (Final Decision July 23, 1987, R. McCallum)(emphasis
supplied).

           5) Rate of Exposure Not a Consideration of the
Likelihood of Exposure:

             "The EPA's reasons for assessing a moderate
potential for harm is that placing the liquid waste in the
landfill increases the rate of migration of the leachate through
the clay liner and the underlying aquifer in the area is of
usable drinking water quality... The argument misses the point
insofar as it is addressed to the rate at which the liquid may
move through the liner, since there is still the likelihood that
a drinking water source, in time, can be contaminated."  Federal-
Hoffman, Inc., Docket No. RCRA  (3008) V-W-87-R-001 at 19  (Initial
Decision Aug. 12, 1987, G. Harwood).

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            6) Types and Quantities of Waste are Factors in
Calculating the Likelihood of Exposure.

             a) "The Penalty Policy directs that consideration
of the quantity of wastes is appropriate in determining the
potential for harm."  Martin Electronics, Inc., Appeal Mo. RCRA
(3008) 86-1 at 11  (Final Decision June 22, 1987, R. McCallum)
(The CJO concluded that a penalty at the low end of the moderate
potential for harm/moderate deviation cell was appropriate for
the failure to notify and revise Part A permit because the
Respondent  generated only 200-250 gallons of solvents per year.
The failure to include solvents in the closure plan classified as
minor resting on the fact that the waste omitted from the plan
represented only a small fraction of the total amount of wastes
stored.)

             b) "While the possible likelihood of exposure
occurring from illegal closures is considered, the types and
quantity of waste involved are also factors relevant to the
assessment of the likelihood of exposure."  Millipore Corp.,
Docket No. RCRA (3008) 11-85-0303 at 11-12 (Initial Decision July
30, 1986, E. Finch) (Concluding that the amount and type of
waste— 50 drums of waste lacquer, 5 drums of waste solvent, 45
drums of spent oil— combined with the potential effects on the
environment indicated a major likelihood of exposure.)

             c) Applied in Sandoz, Inc., Docket No. RCRA  (3008)
84-54-R at  12 (Initial Decision Oct. 31, 1985, T. Yost) (The
court concluded that the "quantities are rather high, however,
the way in which the impoundment is constructed affords an above
average threshold of protection" and classified the waste as
posing a moderate, rather than a major harm.)

               d) Quantities Should be Included as an Element of
the Likelihood of Exposure:

                  "What is missing, however, is some firm
evidence showing precisely what quantities of hazardous waste
were involved and for what periods of time.  This is a factor
which is also to be considered in the potential for harm."  Aero
Plating Works, Inc., Docket No. RCRA (3008) V-W-84-R-071-P at 17
(Initial Decision Feb. 13, 1986, G. HarwoodMIn the absence of
evidence, the ALJ placed "all violations in the minor  'potential
for harm* category because of the failure of the record to show
what actual quantities of hazardous wastes have been involved.")

           7) "Characteristics of the Waste and circumstances
under which the Violations Occurred"  no longer used to evaluate
Likelihood of Exposure.

             A) Standard advocated in the Draft Penalty Policy
has not been expressly rejected, but is no longer applied, as the

                                    8

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standard was not incorporated in the Final Penalty  Policy.

             B) For application under the Draft  Penalty  Policy,
Sfie_, Wheeling-Pittsburg Steel Corp., Docket No.  RCRA (3008)  III-
070 at 14 (Initial Decision Feb. 5,  1985, T.  Yost); Cellofilm
Corp., Docket No.  RCRA (3008) 11-81-0114 at 17  (Initial  Decision
Aug. 5, 1982, G. Harwood);  Redfield  Co..Docket No.  RCRA  (3008)
VIII-83-6 at 13 (Initial Decision Oct.  12, 1983, S. Nissen) ;
Conservation Chemical Co.,  Docket No. RCRA (3008) VII-82-H-035  AT
11 (Initial Decision June 3, 1983, M. Jones); Ohio  Waste Sytsems
of Toledo, Ohio, Docket No. RCRA (3008)  V-W-83-066  at 27
(Initial Decision July 2,  1984, T. Yost).

         c. Adverse Impact  on Implementation of  RCRA

           1) "There may be violations where the likelihood of
exposure resulting from the violation is small,  difficult to
quantify, or non-existent,  but which nevertheless may disrupt the
RCRA program...[t]his disruption may also present a potential for
harm to human health and the environment, due to the adverse
effect noncompliance can have on the statutory or regulatory
purposes or procedures for  implementing the RCRA program."
Final RCRA Civil Penalty Policy (May 8,  1984) at 6.

           2) Notification  and Permit Application

             a) Complete Failure to  Notify and File Part A Permit
Application:

                "The notification and permitting requirements are
crucial to the effective enforcement of RCRA. The  law is not
designed to allow hazardous waste facilities to  operate  until
they are discovered by the  EPA....The failure to file the
notification and to apply for a permit or qualify for interim
status had the effect of concealing  from the EPA, Respondent's
existence and the nature of the hazardous waste  operations	
In other words, the notification and permit requirements go to
the very heart of the RCRA program.   If they are disregarded,
intentionally or inadvertantly, the  program cannot  function.  A.
Y. McDonald Industries, Inc., Appeal No. RCRA (3008) 86-2 at 24-5
(Final Decision July 23, 1987, R. McCallum)  (Reversing the ALJ
classification as a moderate potential for harm insofar as the
failure to notify and to file a Part A permit application had
"substantial" adverse impact on RCRA and a major, not moderate
potential for harm.) (emphasis  supplied).

                 See also.  Grumman St. Augustine Corp.,  Docket
No. RCRA 87-18-R at 30 (Initial Decision May 10, 1989, T. Yost)
for failure to submit a Part B  application.  ("The permit
application forms an essential  part of the Agency's ability to
regulate hazardous waste in that it provides the Agency with the
details that it needs as to what hazardous waste facility is

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handling, how much,  in what fashion, and the ultimate fate of the
hazardous waste of the facility in question.  Without this vital
information the Agency is severely hampered in its ability to
operate a "cradle to grave" program which the statute and
regualtions require.")

             b) Partial Notification and Permit Application:

               "Failure to notify [that the Respondent was
storing solvents] ha[s] a moderate potential for harm because
[Respondent] had notified the EPA of other hazardous waste
activity  at the facility.  Thus r  EPA was at least aware that
[Respondent! generated and stored hazardous waste other than
waste solvents."   Martin Electronics, Inc., Appeal No. RCRA
(3008) 86-1 at 16 (Final Decision June 22, 1987, R.  McCallum)
(Also affirmed the moderate classification of the failure to
revise the Part A permit insofar as the Respondent had addressed
other wastes in the  Part A application. )

               But see. Elwin G. Smith Div. of Cyclops Corp.,
Docket No. RCRA (3008) V-W-85-R-OC2 at 41  (Initial Decision June
25, 1986, F. Vanderheyden) (Court determined that the failure to
submit revised Part  A application for container storage was manor
as the "Act's regulatory program is based fundamentally on a
facility's Part A permit application...[and] [f]ailure to receive
accurate information concerning the hazardous waste activities
program can seriously damage the regulatory program.")

           3) Violation of the Groundwater Monitoring
Requi rements

             a) Complete Failure to Monitor Groundwater:

               The complete failure to implement groundwater
monitoring had a "substantial adverse effect on the RCRA program
and a major potential for harm...Toxicity and quantity thus
already considered in setting the lead concentration threshold,
rates that exceed that threshold are potentially harmful by
definition.  Accordingly, the adverse effect on RCRA for failing
to monitor groundwater at a hazardous waste site is substantial,
and the potential is major, even where the toxicitv is only
sliohtlv above 5 ma/1."  A. Y. McDonald Industries, Inc.  Appeal
No. RCRA (3008) 86-2 at 30-1  (Final Decision July  23,  1987,  R.
McCallum) .

              b) Inadequate Groundwater Monitoring:

              "The moderate category is defined as one where the
violation significantly deviates from the  requirements, but  some
other requirements are implemented as intended."   Sandoz, Inc.
Docket No. RCRA (3008) 84-54-R at 13 (Initial Decision Oct 31,
1985, T. Yost) (Court placed the groundwater monitoring violation

                                    10

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in the moderate category since the Respondent had drilled the
requisite number of wells and performed some sampling,  although
it was inadequate.)

           4) Other Violations

             a) Failure to Submit Closure Plan:

              "Respondent, through its illegal closure, has
succeeded in bypassing the entire closure procedure required by
the regulations,"... including agency comment and supervision over
such details as systems and devices necessary for the protection
of groundwater, equipment decontamination procedures, scheduled
closure and public comments.
             "Closure or partial closure of any hazardous waste
facility without an approved closure plan successfully avoids the
entire regulatory procedure for closure and, thus, clearly has a
substantial adverse effect on the regulatory procedure for
implementing closure."   Millipore Corp., Docket No.  RCRA (3008)
11-85-0303 at 12 (Initial Decision July 30, 1986, E.  Finch).

              b) Failure To Label Drums:

              "One of the primary purposes of the requirements
of RCRA is to properly identify and track hazardous wastes
throughout their life so that they can be handled, disposed of
and otherwise treated in a manner consistent with their physical
and chemical properties.  Extreme hazard to both the public and
emergency response teams, will undoubtedly result if chemical
wastes are improperly labeled."  city Industries Inc., Docket No.
RCRA (3008) 81-6-R-DSE-C at 22 (Jan. 14, 1983 T. Yost).

     b. DEVIATION FROM REQUIREMENTS

       1. "The * extent of deviation' from RCRA or its regulatory
requirements relates to the degree to which the violation renders
inoperative the requirement violated."  Final RCRA civil Penalty
Policy (May 8, 1984) at 8.

       2. Intent not a Consideration in Classifying Extent of
Deviation:

         "...[T]he issue of intent [is] a mitigating factor...to
be considered after determination of the gravity-based penalty."
National Coatings Inc., RCRA (3008) Appeal No. 86-5 at 8 (Final
Decision Jan. 22, 1988, R. McCallum) (Reversing an ALJ's
consideration of lack of intent to reduce the deviation
component from major to minor, the CJO noted that each violation
resulted from a "total failure to comply with applicable
requirements" and characterized the deviation as major.)
                                    11

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       3. Complete Failure to Comply.

         a) "The major deviation from regulatory requirements
was selected because,...«[the] requirement had not been met.   It
was kind of cut and dried—either free liquids went in or it
didn»t.  It appeared that it wasn't an isolated incident...'"
Federal Hoffman, Inc., Docket No. RCRA (3008) V-W-87-R-C01 at 20
(Initial Decision Aug. 12, 1987, G. Harwood) (quoting testimony
taken at trial.)

         b) See also. Elwin G. Smith Div. of Cyclops Corp.,
Docket No. RCRA (3008) V-W-85-R-002  (Initial Decision June 25,
1986, F. Vanderheyden) (Major extent of deviation is justified
because the Respondent did not submit a closure plan for
review.);  Landfill Service Corp., Docket No. RCRA (3008) VII-86-
H-0005 at 8 (Initial Decision Nov. 9. 1987, M. Jones) ("The
extent of deviation is also 'major', as the groundwater quality
assessment plan was neither submitted, nor implemented.");
Arizona Processing Inc., Docket No. RCRA (3008) 09-87-0004 at 8
(Initial Decision Dec. 2, 1987, T. Yost) ("...the deviation from
the requirements is in the major category since Respondent
completely failed to notify the Agency or file for or obtain a
permit to operate its facility.")

       4. Partial Compliance with Regulatory Requirements.

         a) "A 'Moderate* extent of deviation is defined by the
Penalty Policy as a significant deviation from the requirements
of the regulation, but some of the requirements are implemented
as intended.  This 'Moderate' classification is applicable to the
Respondent because of its submittal of a partial closure
plan...At least the EQB  [a state agency] had some notice of the
Respondent's intention to close...."  Millipore Corp., Docket No.
RCRA (3008) 11-85-0303 at 13  (Initial Decision July 30, 1986, E.
Finch).

         b) See also. Sandoz, Inc. RCRA  (3008) Appeal No. 85-7 at
12 (Final Decision Feb 27, 1987, R. McCallum) (The fact that the
Respondent drilled four  wells, and conducted some sampling
'reasonably mitigate[d]' against classifying as a major
deviation.); Elwin G. Smith Div. of Cyclops Corp., Docket No.
(3008) V-W-85-R-002 at 40-42  (Initial Decision June 25, 1986, F.
Vanderheyen) (Failure to provide annual personnel training was a
moderate deviation because they had conducted training in the
past, failure to revise  permit was moderate insofar as the
Respondent had made an initial Part A submission and the  failure
to use hazardous waste codes  in operating records declared
moderate because the Respondent did have basic operating
records.); Martin Electronics, Inc., RCRA  (3008) Appeal No.86-1
at 16 (Final Decision June 22, 1987, R. McCallum)  (Declared that
the failure to notify, the failure to include solvents in Part A
permit and the failure to include solvents  in the closure plan

                                    12

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was moderate insofar as the Respondent had at least partially
complied with respect to all wastes except the solvents.)

       5. Delay in Compliance with Requirements.

         a) "Certainly such a long delay constitutes a major
deviation from the regulatory requirements."  Buckeye Products
Corp.  Docket No. RCRA (3008) V-W-84-R-004 at 17 (Initial
Decision Dec.  11, 1984, G. Harwood) (2 1/2 year delay in
submitting closure plan and 1 1/2 year delay in securing
financial assurance for closure constitutes major deviation.)

         b) See also. Grumman St. Augustine Corp.,  Docket No.
RCRA (3008) 87-18-R at 32 (March 10, 1989, T. Yost) (Court
considered that the Respondent kept a percolation pond in
operation for 240 days  without a permit to determine that there
was a major deviation with regulatory requirements.); Landfill
Service Corp., Docket No. RCRA (3008) VII-86-H-0005 at 6 (initial
Decision Nov.  9, 1987, M. Jones) (Major deviation found when
notification advising a statistically significant increase in
pertinent parameters was delayed for over six months instead of
being reported immediately);  City Industries, Inc. Docket No.
RCRA (3008) 11-81-0114 at 23 (Initial Decision Jan. 14, 1983, T.
Yost)  (the violation "...must be placed in the major category
inasmuch as the record would seem to indicate that the facility
had been in violation of all of the items set forth in the
complaint" for at least five months.); Elwin G. Smith Div. of
Cyclops Corp., Docket NO. RCRA (3008) V-W-85-R-002 at 42 (Initial
Decision June 25 1986, F. Vanderheyden) (Use of drums shown to be
leaking designated major deviation because the drums had been in
storage for a number of years in poor condition.)

         c) But see. U.S. Nameplate Co., Docket No. RCRA (3008)
84-H-0012 at 17 (Initial Decision Apr. 19, 1985, M. Jones)
(Classified the delayed compliance with notification and permit
requirements as moderate  "considering that the said notification
and permit application, although late, were eventually filed...")

   3.  Economic Benefit of Noncompliance

     a. PENALTY POLICY.

       1) "The new Agency civil penalty policy mandates the
consideration of the economic benefit of noncompliance to a
violator when penalties are assessed....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." Final RCRA Civil Penalty Policy  (May 8, 1984)
at 12.
                                    13

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        2)  For  a complete  discussion of the calculation and
application of the  economic benefit of noncompliance,  see f Final
RCRA Civil Penalty  Policy (May 8, 1984) 12-16.

           See  also, Chesapeake Bay Foundation v. Gwaltnev of
Smithfield. Ltd. . 611  F.Supp. 1542, 1558-63 (E.D.Va. 1985),
affd. .  791 F.2d 304  (4th  Cir. 1986), rev'd on other grounds. 108
S.Ct. 376  (1987), for  a good discussion of the elements, the
calculation and the application of the economic benefit of
noncompliance  under the Clean Water Act.

     b. PURPOSE OF  PENALIZING ECONOMIC BENEFIT:

        "The economic benefit component serves to remove any
incentive  to violate the  Act by requiring the violator to pay the
expenses avoided or deferred through noncompliance." A.Y.
McDonald Industries, Inc., RCRA (3008) Appeal No. 86-2 at 32
(Final  Decision, July  23,  1987, R. McCallum) .

         See also. Grumman St. Augustine Corp., Docket No. RCRA
(3008)  87-18-R at 35 (March 10, 1989, T. Yost)  ("The purpose of
this adjustment is  simply that the policy does not want anyone to
enjoy a financial advantage by virtue of failing to comply with
the regulations.")

     C. ELEMENTS OF ECONOMIC BENEFIT.

        l.  Good Faith not  a Consideration

         a. "...The penalty policy specifically states that no
consideration  of good  or  bad faith should enter into the economic
benefit calculation since such factors should have been
considered in  the gravity based penalty calculation and that the
economic benefit calculation should be based solely upon
application of a prescribed formula to given numerical values."
Sandoz, Inc.,  Docket No.  RCRA (3008) 84-54-R at 15  (Initial
Decision Oct.  31, 1985, T. Yost).

         See alsof A.Y. McDonald Industries Inc., Docket No. RCRA
(3008)  85-H-0002 (Initial Decision Apr. 23, 1986, G. Harwood) ("I
have already considered [Respondent's] current efforts to
develop a  monitoring plan in reducing the gravity-based component
of the  penalty, but these efforts are irrelevant to the economic
benefit component.")

        2.  Increased Compliance Costs and Money Expended Not a
Consideration.

         a) "The heightened cost [of coming into compliance] is a
result  of  [Defendant's] noncompliance.  The court deems it
inappropriate  to view  as  mitigation a cost that  [Defendant]
incurred only  because  it  did not comply with RCRA....In any

                                    14

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event, the inflationary increase in the cost of lined cells,
whatever that cost may have been, would pale next to the income
received through [Defendant's] illegal use of unlined
trenches.")  U.S. v. Environmental Waste Control. Inc..  No.  S87-
55 at 170-171 (N.D. Ind. March 29, 1989).

         b) "Compliance cost increases are therefore similarly
irrelevant to the economic benefit component.  Taking such
increases into account would undermine the deterrence value of
this component." A.Y. McDonald Industries, Inc., RCRA (3008)
Appeal No. 86-2 at 32 (Final Decision July 23, 1987, R.  McCallum)
(Noting that "most violators assume, however, that their
noncompliance will go undetected; the possibility of subsequent
increases in compliance costs is irrelevant to their decision not
to comply...")

         c) "...Current expenses for its belated compliance
efforts are irrelevant to the economic benefit it accrued by
delaying these expenses." A.Y. McDonald Industries, Inc., RCRA
(3008) Appeal No. 86-2 at 33 (Final Decision July 23, 1987, R.
McCallum) (The $30,000 spent to bring the site into compliance
was disregarded in calculating the economic benefit.)

       3. Most Inexpensive Alternative Should be Basis:

         "To be sure, the economic benefit component should
include only the cost of the cheapest mode of compliance.  But it
would be unreasonable to expect the complainant in RCRA penalty
cases to prove that every conceivable compliance alternative
would have been more costly than the only one which the economic
benefit calcuation is based...[Respondent] had the burden to
produce evidence to that effect...." A.Y.  McDonald Industries,
Inc., RCRA (3008) Appeal No. 86-2 at 33-34 (Final Decision July
23, 1987, R. McCallum).

           See also f Grumman St. Augustine Corp., Docket No.  RCRA
(3008) 87-18-R at 36 (Initial Decision March .10, .1989, T. Yost)
(Respondent's argument that the calculation of economic benefit
was incorrect as it had not considered a more inexpensive
alternative was rejected as the Respondent had not come forward
with evidence to refute Agency calculations of proof.)

       4. Appropriate Date for Calculation of Economic Benefit:

         "The benefit calculated is the monetary return earned by
the violator during the noncompliance period on the cash expended
to bring itself into compliance...The violator has the benefit
of that $100 up until the time it is paid in satisfaction of the
penalty."  Federal Hoffman Inc., Docket No. RCRA (3008) V-W-87-R-
001 at 24 (Initial Decision Aug. 12, 1987, G. Harwood)  (Held the
use of an estimated penalty payment date was a reasonable method
to determine the economic benefit.)

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       5. Affirmative Defenses:

          "This waiver argument is an affirmative defense to the
economic  benefit component on which [the Respondent] had the
burden of proof." A.Y. McDonald Industries, Inc., RCRA (3008)
Appeal No. 86-2 at  33 (Final Decision July 23, 1987, K.
McCalluiri) (Declaring that the Respondent had failed to meet its
burden in claiming  that their monitoring costs could be reduced
through waivers.)

     d. CALCULATION OF ECONOMIC BENEFIT

       1. In General

          "...The [EPA] estimates seem reasonable enough to be
prima-facie correct.  Since [Respondent] made no attempt tc rebut
these estimates, the reasonable inference is that they are not
out of line with actual expenses."  Federal Hoffman Inc., Docket
No. RCRA  (3008) V-W-87-R-001 at 23 (Initial Decision Aug. 12,
1982, G. Harwood).

       2. Use of National Estimates as Basis for Calculation.

         a) "I express no opinion as to whether a penalty
component premised  on a national model of compliance cost,
standing unrebutted, would satisfy EPA's burden of proving that
the proposed penalty was appropriate." Sandoz, Inc., RCRA (3008)
Appeal No. 85-7 at  24-25 (Final Decision Feb. 27, 1987, R.
McCallum).

         b) "...[The EPA environmental engineer's] testimony
satisfies the Region's burden of production as to the appropriate
amount of the ecomonic benefit component.... The burden of
production then shifted to [Respondent] to show the
unreasonableness of [the Witness'] reliance on the estimated
costs, or to produce proof of actual costs." A.Y. McDonald
Industries, Inc., RCRA (3008) Appeal No. 86-2 at 35-36 (Final
Decision July 23, 1987, R. McCallum).

     e. Application of Economic Benefit of Noncompliance.

       1. U.S. v. T & s Brass and Bronze Works. Inc., 681 F.supp.
314, 322  (D.S.C. 1988), aff'd in relevant part. No. 88-3531 (4th
Cir. Dec. 22, 1988) (Declared that "a penalty is appropriate in
this case to deprive T & S of the economic benefit of its
noncompliance with  the November 8, 1985 statutory LOIS
deadline.")(Citing  Chesapeake Bay Foundation v. Gwaltney of
Smithfield. Ltd. . 791 F.2d 304 (4th Cir. 1986).)

       2. Grumman St. Augustine Corp., Docket NO. RCRA (3008)
87-18-R at 37 (Initial Decision March 10, 1989, T. Yost)  (Absent

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a showing that the Agency misapplied the penalty policy formula
for the calculation of economic benefit, the court  accepted the
EPA's calculations and assessed a penalty of $75,000  for the
economic benefit of noncompliance.

       3. Sandoz, Inc. RCRA (3008)  Appeal No.  85-7  (Final
Decision Feb. 27, 1987, R. McCallum) (Increased the $1,000
penalty imposed by the ALJ to $3,264, insofar as the  calculation
did not reflect the testimony revealing the interest  earned
during noncompliance.)

       4. A.Y. McDonald Industries, Inc., RCRA (30081  Appeal No.
86-2 (Final Decision July 23, 1987, R.  McCallum) (Assessed a
penalty of $11,628 for the economic benefit realized  by the
violator. See discussion of the calculation at 15-18  Initial
Decision.)

       5. Federal Hoffman, Inc., Docket No. RCRA (3008) V-W-87-
001 (Initial Decision Aug. 12, 1987, G. Harwood) (Determined the
economic benefit to be $7,054 as calculated at 22-23.)

       6. F & K Plating Co., Docket No. RCRA (3008) VI-427-H
(Initial Decision Apr. 19, 1986, S. Nissen) (Discussed the
economic benefit realized by the Respondent, but due  to the
inability to pay did not levy any penalty.)

       7. Specialized Printed Forms, Inc., Docket No.  RCRA (3008)
11-84-0219 (Initial Decision Mar. 28, 1986, J. Greene) (Declared
the economic benefit not to be very great at $1,200 a year and
did not specifically include it as a component of the penalty
assessed.)

   4.  Adjustment Factors

     a. In General

       1. "...[A]ny system for calculating penalties  must have
enough flexibility to make adjustments that reflect legitimate
differences between similar violations....EPA must take into
account any good faith efforts to comply with the applicable
requirements....Several other adjustment factors to
consider...include the degree of willfulness and/or negligence,
history of noncompliance, ability to pay, and other unique
factors."  Final RCRA Civil Penalty Policy  (May 8, 1984) at 16.

       2. "To leave the penalty assessment at that point without
adequate consideration of the mitigating factors would result  in
a distorted application of the Penalty Policy."  Millipore Corp.,
Docket No. RCRA  (3008) 11-85-0303 at 17  (Initial Decision July
30, 1986, E. Finch).
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     b. Timing of Adjustment

       "Adjustment of penalty may take place before issuing the
proposed penalty, and penalties may be adjusted before
determining the proposed assessment if the necessary information
is available.  While compliance/enforcement personnel should use
whatever information concerning the violation at the time of the
initial assessment, the issuance of the complaint should not be
delayed in order to collect additional adjustment information.
Elwin G. Smith Div. of Cyclops Corp., Docket No. RCRA (3008) V-W-
85-R-002 at 36 (Initial Decision June 25, 1986, F. Vanderheyden).

     c. Good Faith

       1. "Under Section 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....Prompt correction of environmental
problems also can constitute good faith....No downward adjustment
should be made if the good faith efforts to comply primarily
consist of coming into compliance." Final RCRA Civil Penalty
Policy (May 8, 1984) at 17.

       2. Adjustment for Good Faith Efforts Made Between the
Violation and the Complaint.

        a. "The Act requires that the presiding officer, when
calculating a penalty, must consider *any good faith efforts to
comply with the applicable requirements.»...The meaning of this
language is plain:  the Penalty Policy must allow the flexibility
to permit consideration of all good faith attempts by a
respondent to come into compliance."  Sandoz, Inc., RCRA (3008)
Appeal No. 85-7 at 19 (Final Decision Feb. 27, 1987, R.  McCallum)
(CJO rejected EPA»s argument that good faith efforts should be
limited to activity occuring prior to inspection.)

        b. "...[N]o downward adjustment should be made if
purported good faith efforts consist primarily of a respondent
ultimately coming into compliance.  However, good faith is a
consideration regarding correction of violations before issuance
of a complaint."  Country Roads, Inc., Docket No. RCRA (3008) V-
W-86-R-09 at 18 (Initial Decision Aug. 11, 1987, G. Harwood)  (The
ALJ reduced the proposed penalty by 75% for each of three
violations that had been corrected by the date the complaint was
issued.)

     3. Intent is an Element of Good Faith.

       a. "While lack of intent is not an element of the offense
charged, it can appropriately be considered in determining
Respondent's good faith efforts, or lack thereof, in connection
with the subject offense."  River Cement Co., Docket No. RCRA

                                    18

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(3008) VII-82-H-025 at 12 (Initial Decision May 6,  1983,  M.
Jones) (ALJ reduced the penalty in consideration of
"commendable" good faith efforts to comply with the regulations.)

       b. "Intent to violate is not an element of the offense for
which civil penalties are provided by the Act...but it may be and
has been here appropriately considered in determining the
presence or absence of good faith." Chemical Waste Management,
Inc., Docket No. RCRA (3008) VIII-83-5 at 31 (Initial Decision
Feb. 2, 1984, M. Jones)  (ALJ concluded that no adjustment was
warranted.)

     4. Lack of Diligence not Excused by Subsequent Good Faith:

       "...[T]he violation seems to have occurred because of
[Respondent's] failure to take upon itself the duty of learning
about and carrying out the regulatory requirements.  It cannot
excuse a lack of diligence on the grounds that it faithfully
corrected any violations specifically brought to its attention."
Federal Hoffman, Inc., Docket No. RCRA (3008) V-W-87-R-001 at 21
(Initial Decision Aug. 12, 1987, G. Harwood).

     5. Self-interested Actions do not Constitute Good Faith:

       "...[A]sserted good faith efforts to comply have been very
much qualified by self-interested view of their obligations which
has no justification in law or in fact and provides no basis for
dispensing with a penalty." American Ecological Research Recycle
Corp., Docket No. RCRA (3008) VIII-82-4 at 33  (Initial Decision
July 1, 1984, G. Harwood) (ALJ held that the fact that the
correction of violations did not reflect a genuine concern with
compliance, but pressure imposed by the EPA and that the clean up
was performed in a piecemeal fashion did not warrant an
elimination of the penalty for good faith efforts. Note that the
court does not address whether such considerations are a factor
in determining reduction, not elimination of the penalty.)

     6. Application of Good Faith Reductions:

       a. For administrative law decisions in which the judge has
incorporated a good faith argument into a penalty reduction, see;

         Gulf & Western Manufacturing Co., Docket No. RCRA  (3008)
1-82-1026 at 16  (Initial Decision Nov. 29, 1982,  G. Harwood)
("Security violation resulted from a good faith, albeit  mistaken
belief that the remote location made full compliance with the
standards unnecessary.")

         Willis Pyrolizer Co., Docket No. RCRA  (3008) 83-H-002 at
28  (Initial Decision Dec. 5, 1983, M. Jones)  (reduced in part
because of "ongoing good faith efforts" to come into compliance.)


                                    19

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         Omark industries, Docket No. RCRA (3008)  85-10-09 at 22
(Initial Decision Jan. 6, 1987, S. Nissen) (While the
Respondent's policy of requiring partially filled drums to be
checked by a chemist before disposal was not followed here, "it
is certainly evidence of good faith efforts to comply with RCRA."
Penalty reduced by 25%, in part, because of these good faith
efforts.)

         Slimford Manufacturing Co., Inc., Docket No. RCRA (3008)
85-24-R at 27 (Initial Decision Apr. 29, 1988, J.  Greene)
("Respondent quickly corrected all container violations found
during the inspection...[and] took numerous other steps to comply
with the Act and the regulations," warranting an ultimate
reduction of about 50%.)

         Martin Electronics Inc., RCRA (3008) Appeal No. 86-1 at
19 (Final Decision June 22, 1985, R. McCallum) (CJO affirmed
EPA's 10% reduction for good faith efforts because the Respondent
quickly remedied the violations.)

         National Coatings Inc., RCRA (3008) Appeal No. 86-5 at
10 (Final Decision Jan. 22, 1988, R. McCallum) (the fact that the
Respondent immediately cleaned up the drums at the site displayed
a cooperative attitude and good faith and accordingly, supported
a 25% reduction.)

     b. For judicial decision rejecting good faith argument for
reduction, see;

       1. U.S. v. Environmental Waste Control. Inc.. No. S87-55
at 168 (N.D. Ind. March 29, 1989) (Court held that the Respondent
had not exhibited good faith in handling its groundwater
monitoring violations as it had done nothing in response to a
state order requiring improvements. The court did however, note
that good faith efforts to comply with the financial
responsibility requirements throughout a LOIS violation would
weigh heavily in its favor.)

       2. U.S. v. T & S Brass and Bronze Works. Inc.. 681 F.Supp.
314, 322 (D.S.C. 1988), aff'd in relevant part. No. 88-3531  (4th
Cir. Dec. 22, 1988) ("...The Court finds as a factual matter
that T & S failed to exercise any good faith efforts to comply
with the financial responsibility requirements of RCRA and that T
& S had knowledge of the November 8, 1985, statutory
deadline.")(Respondent was assessed a penalty of $1,000 for each
of the 194 days it was in violation of the LOIS deadline.)

     c. For administrative law decisions rejecting good faith
arguments for reduction, see;

        Redfield Co., Docket No. RCRA (3008) VII-83-6 at  15
(Initial Decision Dec. 12, 1983, S. Nissen)  (rejecting good  faith

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reduction because the EPA had sent two warning letters prior to
the Respondents action.)

        Millipore Corp.,  Docket No.  RCRA (3008)  11-85-0303 at 14
(Initial Decision July 30, 1986, E.  Finch)  (Refused request to
reduce because there was  no evidence that the Respondent inquired
as to the status of the  closure plan.   "Inquiries of this type
would have at least indicated some effort to comply.")

        Aero Plating Works, Inc., Docket No. KCRA (3u08) V-W-84-
R-071-P at 18-19 (Initial Decision Feb. 13,  1986, G. Harwood)
(Although the Respondent  did act quickly, they did not show that
their efforts were sufficient and the evidence does "not add up
to a persuasive showing  of a conscientious effort to acheive full
compliance").

        Buckeye Products  Corp., Docket No.  RCRA (3008) V-W-84-R-
004 at 23 (Initial Decision Dec. 11, 1984,  G. Harwood) (While
Respondent did show some  good faith the delayed submission
prevented a reduction in the penalty).

     d. Ability to Pay

       1. "The Agency generally will not request penalties that
are clearly beyond the means of the violator....The burden to
demonstrate inability to  pay rests on the respondent... 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...the following options may
be considered:...a delayed payment schedule,...an installment
payment plan with interest, [or]...straight penalty reductions as
a last recourse."  Final  RCRA Penalty Policy (May 8, 1984) at 20.

       2. Statutory Significance

         a) "Unlike other statutes, allowing for the imposition
of civil penalties which the agency administers, there is no
requirement that the Administrator must take into account the
Respondent's ability to  pay, or the effect of payment on its
ability to stay in business." Wheeling-Pittsburg Steel Corp.,
Docket No. RCRA (3008) III-070 at 12 (Initial Decision Feb. 5,
1985, T. Yost).

          See also,. City Industries, Inc., Docket No. RCRA  (3008)
81-6-R-DSE-C at 19 (Initial Decision Jan. 14, 1983, T. Yost)
(Omission by Congress of ability to pay the fine "indicates the
seriousness with which Congress viewed violations...")

         b) Note, administrative discussion of Congressional
intent with regard to inability to pay is limited to opinions
authored by T. Yost.

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       3. Burden of Proof

         a. "The burden to demonstrate inability to pay rests on
the respondent..." Final RCRA Civil Penalty Policy (May 8,  1984)
at 20.

         b. "Since RCRA doesn't include ability to pay as one cf
the factors that EPA must consider in assessing a penalty and
Congress certainly knew hoc/ to incluae such a factor in an
environmental statute, the logical conclusion is that ability to
pay is not an element of EPA's proof...This requirement [that
Respondent prove the inability to pay] is reasonable for it is
only fair that the Respondent, as proponent of a reduction in
penalty based on its financial condition have the burden of
proof..."  central Paint & Body Shop, Inc., RCRA (3008) Appeal
No. 86-3 at 9-10 (Final Decision Jan. 12, 1987, R. McCallum).

         See also. Aero Plating Works, Inc., Docket No. RCRA
(3008) V-W-84-R-071-P at 21 (Initial Decision Feb. 13, 1986,  G.
Harwood).

       4. Evidence of Inability to Pay.

         a. "Unverified balance sheet, standing alone, is
inadequate." F & K Plating Co., RCRA  (3008) Appeal 86-1A at 9
(Final Decision Oct. 8, 1987, R. McCallum).

         b. "No weight to various unsworn assertions made by
counsel for [Respondent] regarding {Respondent's] inability to
pay."  F & K Plating Co., RCRA (3008) Appeal 86-1A at 9 n.ll
(Final Decision Oct. 8, 1987, R. McCallum).

         c. "Must fully support with documents." F & K Plating
Co., RCRA  (3008) Appeal No. 86-1A at  12  (Final Decision Oct.  8,
1987, R. McCallum)  (Declaring evidence necessary to establish
inability to pay upon remand.)

       5. Sufficiency of Evidence.

         a. The fact that a penalty is "hard to pay is not
sufficient to justify a reduction in penalty." Central Paint &
Body Shop, Inc., RCRA  (3008) Appeal 86-3 at 10 (Final Decision
Jan. 12, 1987, R. McCallum).

         b. "I cannot conclude that the payment of $31,950 is
beyond Respondent's ability to pay...It may well be that payment
in one sum could only be done by borrowing the money, and that
this may not be possible because of insufficient cash flow or
what appears to be the relatively large debt Respondent has
already incurred. If Respondent can show that this is the case,
the Respondent should be given the option of paying in

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 installments." National Coatings, Inc., Docket No. RCRA  (3008) V-
 W-84-R-052  at  30  (Initial Decision June 20, 1986, G. Harwood)
 (Preferring installments to  reduction of penalty.)

      e.  Willfulness

        1. "...[T]he penalty  may be adjusted upward for
 willfulness and/or negligence.  Conversely, although RCRA is a
 strict  liablity statute, there may be instances where penalty
 mitigation  may be justified  based upon ths lack of willfulness
 and/or  negligence." Final RCRA Civil Penalty Policy  (May 8,  1984)
 at  17.

        2. Lack of Intent Supports Reduction

         a)  "...[l]n the context of the accidental nature of the
 dumping incident, I find that [Respondent] had no intent to
 dispose improperly of the hazardous wastes" thereby warranting a
 25% reduction  in penalty assessment. National Coatings,  Inc.,
 RCRA (3008)  Appeal No. 86-5  at 12 (Final Decision Jan. 22, 1988,
 R.  McCallum).

         b)  But see. Humko Products, Docket No. RCRA  (3008) V-W-
 84-R-014 at 10 (Initial Decision Mar. 7, 1985, S. Nissen) (ALJ
 rejected assertion that he should reduce or eliminate the
 penalties because the violation was inadvertent.  "RCRA is a
 strict  liability statute, however and authorizes the  imposition
 of  a penalty even if unintended.")

        3. Application! For administrative law decisions  applying
 the willfulness adjustment factor to reduce a proposed penalty,
 see;

         Amsted Industries,  Inc., Litho Strip Div., Docket No.
 RCRA (3008)  V-W-85-R-31 at 15 (Initial Decision July  18, 1986, F.
.Vanderheyden)  (That the Respondent was "laboring under the
 genuine belief, however wrong that they did not have  to  submit a
 Part A  application...show[s] [a] lack of willfulness/negligence
 on  Respondent's part.")

         Millipore Corp. Docket No. RCRA (3008) 11-85-0303 at 17
 (Initial Decision July 30, 1986, E. Finch)  ("Obviously,  there was
 no  willfulness on Respondent's part to deliberately violate  the
 hazardous waste regulations...Respondent's record of  regualtory
 compliance  supports this conclusion.")

         Country Roads, Inc., Docket No. RCRA  (3008)  V-W-86-R-09
 at  17 (Initial Decision Aug. 11, 1987, G. Harwood)  ("The
 willfulness/negligence adjustment factor was properly applied to
 violations  not corrected by  the time complaint was  issued due to
 the extended period of noncompliance by respondent after the
 initial discovery of the violations.  An enforcement  agency  is

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not required to exercise  the patience of unanswered prayer.
Delayed compliance  is no  compliance.  Respondent could have had a
25% increase in its penalty. Complainant reduced this to 15%.")

       4. Application: For an administrative law decision
applying the willfulness  adjustiment factor to increase a
proposed penalty, see:

          Grumman St. Augustine Corp., Docket No. RCRA (3008) 87-
18-R at 33-34  (Initial Decision March 10, 1989, T. Yost) ("In
regard to the  negligence  or willfulness aspect of the policy, the
Agency took into account  the Respondent's obvious unfamiliarity
with the regulations and  statutes and it didn't even understand
the fact that  they were required to do the same tasks as one who
had obtained interim status pursuant to the Act.  It did not take
the steps required by the regulations for one who is considered
to have interim status even though the Agency on several
occasions advised the Respondent that they were in that position.
The Respondent's failure  to keep abreast of even the most minimal
requirements of the regulations and Act by acquiring up to date
copies thereof was evident of their negligence," warranting a 25%
increase in the penalty for willfulness and history of
noncompliance.)

       f. History of Noncompliance

         1) "Where a party previously 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 enforcement response....This is an indication that the
penalty should be adjusted upwards." Final RCRA Civil Penalty
Policy (May 8, 1984) at 18.

         2) "As to the history of non-compliance the Agency
witness considered the five previous EPA and State inspections of
the Respondent's facility dating back to 1985...The witness also
considered the violations of the EPA and State 1987 Consent
Orders and other notices  of violation issued by the State."
Grumman St. Augustine Corp., Docket No. RCRA (3008) 87-18-R at 34
(Initial Decision March 10, 1989, T. Yost) (Based upon the
history of non-compliance and the willfulness of Respondent's
acts, the court adjusted  the penalty upward by 25%).

            See also. Redfield Co., Docket No, RCRA (3008) VIII-
83-6 at 16 (Initial Decision Dec. 12, 1983, S. Nissen)  (Selected
the highest amount contained within the cell because the violator
had ignored prior warnings for essentially the same violations.)

       g. Other Unique Factors.

         1) "This policy  allows an adjustment for unanticipated


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factors which may arise on a case-by-case basis." Final RCRA
Civil Penalty Policy (May 8, 1984)  at 20.

         2) Application: For the administrative law decisions
which have applied the unique factors in penalty assessment, see:

           Lissner Corp., Docket No.  V-W-84-R-06 at 21 (Initial
Decision July 30, 1985, S. Nissen)  (Confusion resulting from
reliance on the state agency warranted a 25% reduction.)

           Ashland Chemical Co., Div. of Ashland Oil Co., Docket
No. RCRA (3008) IX-83-10 & IX-83-40 at 45 (Initial Decision Jan.
21, 1984, S. Nissen) (25% reduction granted insofar as the
regulations were somewhat unclear as to whether closure applied
to product tanks and Respondent's beliefs were understandable.)

           Amstead Industries, Inc.,  Litho Strip Div., Docket No.
RCRA (3008) V-W-85-R-31 at 15 (Initial Decision July 18,  1986, F.
Vanderheyden) (ALJ reduced the proposed penalty after the EPA
withdrew an allegation as to one of two wastewater streams
without reducing the proposed penalty.)

       5. Multiple Penalties

         a. "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." Final RCRA Civil Penalty Policy (May 8, 1984)  at 11.

         b. "To allow [Respondent]  to be charged only one penalty
for these three violations would be unfair to a Respondent who
violated one RCRA requirement and is also charged one penalty."
Martin Electronics, Inc., RCRA (3008) Appeal 86-1 at 15 (Final
Decision June 22, 1987, R. McCallum)  (CJO overturned ALJ's
determination that failure to notify of solvent storage,  failure
to file a Part A application with respect to solvents, and
failure to include solvents in a closure plan constituted one act
in the failure to notify the Agency of the storage of solvents.)

         c. Separate Element of Proof Necessary.

           1) "A given charge is independent of, and
substantially distinguished from, any other charge when it
requires an element of proof not needed by the others." Final
RCRA Civil Penalty Policy (May 8, 1984) at 11.

           2) "...Failure to have the wells located downgradient
from the facility and the inablity of such wells to measure
groundwater elevations...do, in fact, consititute two separate
and distict violations of the regulations for which individual
penalty assessments are appropriate." Ohio Waste Systems of

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Toledo Ohio,  Docket  No.  RCRA  (3008) V-W-83-066 at 26 (Initial
Decision July 2,  1984, T.  Yost)  (Relying on Blockburger v.
United States.  284 U.S.  299  (1932)(Where the same act or
transaction constitutes  a  violation of two distinct statutory
provisions, the test to  be applied to determine whether there are
two offenses  or only one is whether each provision requires proof
of an additional  fact which the  other does not.)

           3)  "RCRA  Section 3008(g) directs that penalties should
be assessed for each violation of Subchapter C...Congress made
notification  of hazardous  waste  activity and filing and
application for interim  status separate statutory requirements
under Subchapter  C and thus contemplated that separate penalties
would be assessed....Section  265.112(a)(1984) was promulgated
pursuant to statutory authority  found in RCRA Section 3004"
Martin Electronics,  Inc.,  RCRA (3008) Appeal No. 86-1 at 15
(Final Decision June 22, 1987, R. McCallum) (Holding that three
violations arose  from the  failure to include solvents in
notification,  Part A permit application and the closure plan.)

          4)  "...Even violations of the same regulations at a
single location can  result in separate penalties where they
involve two or  more  independent  acts and pose distinct risks." F
& K Plating Co. ,  Docket  No. RCRA (3008) VI-427-H at 5 (Initial
Decision Apr.  19, 1986,  S. Nissen)

     c. Separation of Penalties  Might Not Affect Outcome

       "...Certain conceivable penalty consolidations in this
case would not  affect the  total  amount of [Respondent's]
penalty.  For  example, the two penalties for failing to maintain
adequate security ($1,000) and for failing to post warning signs
($2,000) could  arguably  be viewed as a single security violation.
If they  were  consolidated, however, the extent of deviation
would increase  from  moderate  to  major, thereby justifying a
single penalty  of up to  $2,999..." F & K Plating Co., RCRA (3008)
Appeal No. 86-1A  at  6 (Final  Decision Oct. 8, 1987, R. McCallum).

   6. Multi-Dav Violations

     a. "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."  Final RCRA Civil Penalty Policy (May 8, 1984)
at 12.

     b. The only  reported  case to assess a multi-day penalty
under RCRA is  U.S. v. T  &  S Brass & Bronze Works. Inc. . 681
F.Supp. 314,  322  (D.S.C. 1988),  aff'd in relevant part. No. 88-

                                    26

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3531 (4th Cir. Dec. 22, 1988) (Court imposed a $1,000 fine for
each of the 194 days that the Respondent violated the LOIS
deadline.) See also r Chesapeake Bav Foundation v.  Gwaltnev of
Smithfield. Ltd. . 611 F.Supp. 1542 (E.D.Va.  1985), aff*d. . 791
F.2d 304 (4th Cir. 1986), rev'd on other grounds.  108 S.Ct.  376
(1987), for a good discussion of tne assessment of multi-day
penalties under the Clean Water Act.

   7.  Use of Penalty Folicv Prima Facie Correct:

     "A penalty calculated in accordance with the Final RCRA
Civil Penalty Policy is prima facie appropriate."   F & K Plating
Co., Docket No. RCRA (3008) VI-427-H at 30 (Initial Decision Apr.
19, 1986, S. Nissen).

      See also. Central Paint & Body Shop, Inc., Docket No.  RCRA
(3008)  VIIl-85-02 at 12 (Initial Decision June 6,  1986, T. Yost);
Lissner Corp., Docket No. V-W-84-R-065 at 19 (Initial Decision
July 30, 1985, S.  Nissen).

D. JUDICIARY NOT BOUND BY THE PENALTY POLICY

   1.  "The EPA properly may adopt regulations for its own
administrative assessment of civil penalties; indeed the EPA has
done so....The EPA may not, however, impinge upon the discretion
Congress has afforded the courts."  U.S. v.  Environmental Waste
Control. Inc.. No. S87-55 at 166 (N.D. Ind.  March 29, 1989)
(Although the court did not use the penalty policy for guidance,
it held that it had the authority to assess penalties of $25,000
for each of the 1,173 days Defendant violated the LOIS
requirements, the 468 days it violated liner requirements, and
the 773 days it failed to install additional groundwater
monitoring wells, totaling $60 million. Declaring such a penalty
to be punitive, not deterrent, the court instead,  levied a
penalty of $2,000 per day for a total penalty of $2,778,000).

    2.   See also. U.S.  v. T & S Brass & Bronze Works. Inc.. 681
F. Supp. 314 (D.S.C. 1988), aff'd in relevant part. No. 88-3531
(4th Cir. Dec. 22, 1988) (While holding that the Court "may give
consideration to these same factors," as outlined in the penalty
policy, "the amount of a civil penalty is committed to the
informed discretion of the court."  Recognizing the authority to
assess $25,000 a day, the court found that an assessment of
$1,000 for each of the 194 days that the Respondent had exceeded
the LOIS deadline was appropriate.)

E.  JUDICIAL PENALTY ASSESSMENT OUTSIDE THE CONTEXT OF THE
    PENALTY POLICY

   1.   The United States district court in U.S. v. Environmental
Waste Control. Inc.. No. S87-55 (N.D. Ind. March 29, 1989)
assessed a $2,000 per day civil penalty, totalling $2.778

                                    27

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million, against defendants.  In assessing this penalty,  the
court stressed the seriousness of the violations, in particular:

     a.  three years of continued operation of a land disposal
facility without interim  status;

     b.  long-standing failure to conduct proper groundwater
monitoring despite repeated notices from regulatory authorities;

     c.  continued hazardous waste disposal in laterally-expanded
disposal facilities which did not comply with minimum technology
requirements, and inadequate remediation via excavation.

   2.  The court noted that failure to maintain adequate
insurance would justify only a nominal penalty where defendant
made good faith efforts to procure adequate insurance, and where
no claims requiring insurance coverage were filed during the
period in which the insurance coverage was inadequate.
                                    28

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                             United States Environmental Protection Agency
                                        Washington, D.C.  20460

                                               FACT SHEET

                              1990 REVISED  RCRA CIVIL PENALTY POLICY

       Prepared by the U.S.  EPA Office of Enforcement - RCRA Division, and the Office of
       Solid Waste and Emergency Response - Office of Waste Programs Enforcement
EPA ACTION:

PURPOSE:




BACKGROUND:
EPA is issuing the revised RCRA Civil Penalty Policy (RCPP or the Policy).
CALCULATING
THE PENALTY:
EPA is issuing the revised RCPP to ensure that civil penalties in both civil judicial
and administrative cases reflect the gravity of RCRA  violations, deter non-
compliance,  eliminate economic  incentives  to  violate  the law, and are well
documented.

The first RCRA penalty policy, issued in 1984, applied to administrative penalties
only.  The 1984 policy was intended, among other things, to ensure that RCRA civil
penalties were fair, consistent, and appropriate to the gravity (seriousness) of the
violation. These goals are continued in the new RCPP. which EPA revised based
on six years of experience implementing the 1964 policy.

Both the Inspector General's September 18, 1989 Consolidated Report on RCRA
penalties, and the Agency's own 1990 RCRA Implementation Study concluded that
the RCRA  program must  propose and collect higher penalties.  The new RCPP
addresses this concern by providing for increased, but fair penalties.
Pursuant to the new RCPP, the penalty for a violation is calculated in four steps.
They are:

        1)      determining the appropriate gravity-based penalty based on the
               •probability of harm* posed by the violations, and its 'extent of
               deviation from regulatory requirements';
        2)      calculating a multiday component to address the violation's duration
               (in accordance with the policy);
        3)      adjusting the overall gravity-based penalty  based on individual
               factors; and
        4)      calculating and recapturing the 'economic  benefits from non-
               compliance* obtained by the violator.
MAJOR CHANGES
IN THE 1990 POLICY:

o      The most significant changes in the new RCPP concern how multiday penalties are calculated.
       The Policy establishes three classifications of violations for multiday penalties based on the relative
       gravity of the violations.  These categories, which apply to days 2-180 of continuing violations, are
       'mandatory*, 'presumed*, and 'discretionary*  (see  attachment). When multiday penalties are
       presumed to  be appropriate, they  must be imposed unless case-specific factors supporting the
       decision not to assess multiday penalties are documented.  Multiday  penalties for days 180+ of
       all violations are discretionary.
       For the first time, the RCPP will apply to civil judicial settlements. It will continue to apply to both
       administrative complaints and settlements, as well.

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The RCPP requires enforcement personnel to document their penalty calculations and supporting
evidence for both proposed penalties and settlement amounts in the case files.  The Regions will
be required to send their penalty calculation worksheets to EPA Headquarters for periodic review
and analysis.  This will help ensure that the RCPP is being implemented properly.

                       Where a multiday penalty is sought, the Policy requires it to be calculated
                       using a multiday penalty matrix.  The  dollar amounts in each cell in the
                       multiday matrix range from 5% to 20% of the corresponding cell in the
                       gravity-based penalty matrix.


The RCPP contains explicit guidance on how to select the appropriate cell in the gravity-based
matrix, how to calculate economic benefit, when to require multiday penalties and how to apply
mitigating factors to reduce/increase a  penalty.  The policy also includes several detailed sample
penalty  calculations as  guidance.  Persons interested  in knowing more about  these topics are
encouraged to review the RCPP itself.

s'/S S / / / /
SS / / / 1 1
/ / / / / /
// / / /
/ / / / 1

\ \ \ \\XX»^^
\ \ \ \\\\X>C
1 \ \ \ \ \ XX
( \ \ \ \\X
i \ \ \ \\
1 \ \ \ \

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                          Attachment
                     - HDLTIDAY PENALTIES -
Potential
   IflE
  Harm
                    MULTIDAY PENALTY MATRIX

                           Extent of Deviation
                       From Regulatory Requirement

MAJOR
MODERATE
MINOR
MAJOR
M.
M.
Pr.
MODERATE
M.
Pr.
Dis.
MINOR
Pr.
Dis .
Dis.
                 Kay:  "M" means, "Mandatory"
                       "Pr." means, "Presumed"
                       "Dis." means, "Discretionary"

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              UNITED STATES ENVIRONMENTAL PROTECTION AGfi'-Y
                         WASHINGTON, D.C.  20460
                                  9  r^
MEMORANDUM
SUBJECT:  Documenting Penalty Calculations  and  Justifications in
          EPA  Enforcement Ac
FROM:     James M.
          Assistant Administrator

TO:       Addressees

     This memorandum institutes a uniform  system  for  documenting
penalty calculations and explaining how  they  are  consistent  with
the applicable penalty policy in all  EPA enforcement  actions.   It
expands on the September 14, 1987 Guidance on Processing  of
Consent Decrees (GM-64) and requirements in several media
specific penalty policies.  The system will allow regional and OE
management to assure that EPA settlement agreements comply with
applicable penalty policies, and will provide documentation  for
our actions for purposes cf oversight review.  The memorandum
sets out the information regarding the penalty which  must be
discussed at each stage of litigation.   The exact format  of  the
discussion is left to the discretion of  each  program.  All
discussions of the agency's settlement position regarding
penalties are, of course, strictly enforcement confidential
workproduct, should be clearly labeled as  such and should not  be
released.

     Effective immediately, every settlement  package  transmitted
from the Regional Administrator or Regional Counsel to
Headquarters for concurrence must include  a written "Penalty
Justification."   This should include an explanation  of how  the
penalty, including the economic benefit  and gravity component,
was calculated.  The Region should then  discuss in detail the
justification for any mitigation of either component.  In
particular, reference should be made to  the factor or language in
the penalty policy that is relied upon to  justify the mitigation,
and a discussion must be included detailing why mitigation is
warranted in the particular case.  For administrative cases, a
Penalty Justification should be prepared for  circulation  within
the Office of Regional Counsel with a final consent agreement  or
order.  It may not be circulated to the  agency official who  signs
the final order as the presiding agency  official,  usually the
Regional Administrator, because it could constitute ex^ jgarte
communication which would have to be  shared with  defendants  under
40 C.F.R. Part 22.
                                                        Primal .-^n lacycted Paper

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                               -  2  -
     When  the  factor relied  upon  to justify  mitigation  is
 litigation risk,  the Region  should  state  the probable outcome of
 litigation along  with legal  and factual analysis which  supports
 its conclusion.  'For judicial  cases,  this should be done in
 consultation with the Department  of Justice.   Specific  discussion
 of the  evidentiary problems, adverse legal precedent, or other
 litigation problems in the case should be included.  If the
 required discussion of the penalty  is contained in the  litigation
 report  or  subsequent correspondence between  the ORC and OE, the
 settlement package from the  Region  may reference this discussion
 along with an  attachment of  the previous  documentation.

     A  similar discussion of Penalty Justification should also be
 included in every settlement package transmitted from the
 Associate  Enforcement Counsels for  the signature of the Assistant
 Administrator.  The Headquarters  staff may,  however, reference
 the discussion in the regional memorandum when it is sufficient.
 Seriously  deficient Penalty Justifications will be returned to
 the Region to  allow a proper analysis to  be  prepared before the-
 Assistant  Administrator for  Enforcement reviews a consent decree
 for signature.

     In addition,  each Office of  Regional Counsel case file and
 all OE  files in cases in which OE is involved should contain at
 all times  during  the course of an enforcement action
 documentation  of  the current bottom line  agreed upon by the
 litigation team.   For civil administrative cases, this will begin
with the filing of the administrative complaint.  For civil
 judicial cases, this will begin with the  litigation report, which
 should  include the penalty proposed by the Region initially.  The
 litigation report should clearly  indicate how the gravity and
economic benefit  components were  calculated  under the applicable
penalty policy and discuss in detail  any  mitigation that is
proposed.   Significant uncertainties  which could result in
 further mitigation should also be identified.

     The OE attorney assigned to  the  case will then determine if
OE concurs with the.penalty proposed by the  Region in reviewing
the referral.  OE concurrence will  be documented in writing,
placed  in  the  OE  case file and provided to the Region.  If OE
does not concur with the penalty  proposed by the Region in the
referral,  the  assigned OE attorney  will prepare a memorandum to
the Region stating with specificity the basis(es) of the
nonconcurrence.

     Once  the  enforcement action  is initiated or pre-filing
negotiations begin,  the litigation  team should document any
agreed  upon changes to the bottom line penalty based upon new
 information or circumstances which  arise  during the course of the
enforcement action.   This documentation must, at a minimum,

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include a memorandum to the file recording how both the gravity
and economic benefit components were calculated, the basis in the
applicable penalty policy and in the specific facts of the case
for any nitigation, and the changed circumstances or new
information which  justify modification of the bottom line.  This
will be especially beneficial in cases where there are changes in
the litigation team over time.  It will enable new attorneys
assigned to the case to know what the current bottom line penalty
is and how that has been determined over the course of the case.

     These requirements will serve several functions.  It will
ensure that management has adequate information to judge
consistency with the applicable penalty policies in specific
cases and in the various enforcement programs overall.  It also
will ensure that every regional case file and all OE files in
cases in which OE is involved have written documentation of how
the penalty obtained was calculated and justified in terms of the
penalty policy.  This is essential for reviews or audits of our
settlements.

Addressees:

     Regional Administrators
     Regions I-X

     Deputy Regional Administrators
     Regions I-X

     Regional Counsels
     Regions I-X

     E.  Donald Elliott
     General Counsel

     Headquarters Compliance Program Division Directors

     Associate Enforcement Counsels

     Richard B. Stewart
     Assistant Attorney General
     Environment and Natural Resources Division
     U.S. Department of Justice

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WASHINGTON. D.C. 20460
                                2 1991
                                                   OFFCEOF
MEMORANDUM

SUBJECT:  Policy on the Use of Supplemental  Enforcement
          Projects in EPA
FROM:     James M. Stroc)
          Assistant Administrator

TO:       Regional Administrators
          Deputy Regional Administrators
          Regional Counsels
          Regional Program Division Directors
          Assistant "Administrators
          General Counsel
          Program Compliance Directors
          Associate Enforcement Counsels

     This memorandum transmits the new Agency policy  on  the  use
of "supplemental environmental projects"  in Agency consent orders
and decrees.  It amends GM-22, "A Framework for  Statute-Specific
Approaches to Penalty Assessments: Implementing  EPA's Policy on
Civil Penalties (issued February 16, 1984), by replacing and
superseding the section on "Alternative Payments" on  pages 24-27
of that documen£.^_;j>JLe,ase note that this  policy  amends only
the section on "alternative pay^r.ts" and that all other sections
of GM-22 remain in effect.

     In the past, the Agency has used several terms to describe
substantive settlement conditions (usually projects or
activities), other than those required as injunctive  relief  to
correct the underlying violation, which the defendant/respondent
may undertake in exchange for a reduction in the amount  of the
assessed civil penalty.  In GM-22, these  conditions are  called
"alternative payments."  They also have periodically  been
referred to as "mitigation projects" or "environmentally
beneficial expenditures."  The Agency's past experience  with
these projects has sometimes been problematic, in part because
GM-22 did not fully describe the kinds of projects that  are
appropriate for penalty reduction, the situations under  which
they should be considered, and the amount by which the penalty
demand can be reduced.

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     The Agency  believes-that  these  projects,  if carefully
crafted and executed, -provide  useful  environmental benefits
beyond what can  be  secured  solely  through  injunctive relief. We
particularly  believe  they can  be a useful  vehicle in promoting
pollution prevention.   Last year,  the Office of Enforcement
explored with the Environmental Management Counsel major issues
relating to the  use of  "alternative  payments," and since then has
worked closely with the Environment  and  Natural Resources
Division of the  Department  of  Justice to develop this new policy
on the systematic use of these projects.   This policy applies to
both administrative and judicial settlements.

     In order to provide a  common  term of  reference, this policy
replaces the term "alternative payment" with the general term
"supplemental environmental project."  The policy describes five
specific categories of  projects which the  Agency will consider as
supplemental environmental  projects  in a settlement: pollution
prevention; pollution reduction; environmental restoration;
environmental auditing; and public awareness.  It also provides a
number of specific  examples of supplemental projects.

     I am confident that 'this  new policy on "supplemental
environmental projects11 will enable the Agency to secure
additional protection of human health and  the environment
while avoiding the  difficulties which occasionally characterized
their past use.  This policy takes effect  immediately, and media-
specific policies will  be modified to conform to this policy as
quickly as possible.  Any guestions you have regarding its
implementation should be addressed to Ed Reich, the Deputy
Assistant Administrator for Enforcement or to Scott Fulton,
Senior Enforcement  Counsel.

Attachment

cc: Deputy Administrator
    Associate Deputy Administrator

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       EPA POLICY ON THE USE OF  SUPPLEMENTAL
ENVIRONMENTAL PROJECTS IN ENFORCEMENT  SETTLEMENTS
                                       February 12,  1991

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               Supplemental Environmental Projects

A.   Introduction

     In settlement of environmental enforcement cases, the United
States will insist upon terms which require defendants to achieve
and maintain compliance with Federal environmental laws and
regulations.  In certain instances, additional relief in the form
of projects remediating the adverse public health or environment-
al consequences of the violations at issue may be included in the
settlement to offset the effects of the particular violation
which prompted the suit.  As part of the settlement, the size of
the final assessed penalty may reflect  the commitment of the
defendant/respondent to undertake environmentally beneficial
expenditures ("Supplemental Environmental Projects").

     Even when such conditions serve as a basis for considering a
Supplemental Environmental Project, the Agency's penalty policies
will still require the assessment of a substantial monetary
penalty according to criteria described in A Framework for
Statute-Specific Approaches to Penalty Assessments;  Implementing
EPA's Policy on Civill Penalties (GM-22), generally at a level
which captures the defendant/respondent's economic benefit of
noncompliance plus some appreciable portion of the gravity
component of the penalty.   Each administrative settlement in
which a "horizontal" Supplemental Environmental Project or
substitute performance is  proposed (see below) must be approved
by the Assistant Administrator for Enforcement, and, where
required by the Agency's delegations policy, the media Assistant
Administrator.   Judicial settlements,  including any of the
projects described herein, will continue to require the approval
of the Assistant Administrator for Enforcement and also be
approved .by the Assistant  Attorney General for the Environment
and Natural Resources Division.

     EPA will expand its approach to Supplemental Environmental
Projects while also maintaining a nexus (relationship) between
the original violation and the supplemental project.  EPA may
approve a supplemental project so long as that project furthers
the Agency's statutory mandates to clean up the environment and
deter violations of the law.1   Accordingly,  supplemental  projects
       A  supplemental project cannot  be  used  to  resolve
violations at a facility other than the facility or facilities
which are the subject of the enforcement action.  This would run
counter to deterrence objectives, since it would effectively give
a company a penalty "break" for violations at one facility  for
undertaking what amounts to legally required compliance efforts
at another facility.  Such a scenario would operate to reward
recalcitrance, poor-management practices, and non-compliance.

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may  be  considered  if:  '(1)  violations  are  corrected  through
actions  to  ensure  future compliance;  (2)  deterrence  objectives
are  served  by  payment  of a substantial  monetary  penalty as
discussed above; and  (3) there  is  an  appropriate "nexus" or
relationship between  the nature of  the  violation and the
er.vi rcr.r.er.-31  benefits to  be  derived  fron the  supplemental
project.

     All supplemental  projects  must improve  the  injured
environment or reduce  the  total risk  burden  posed to public
health or the  environment  by  the identified  violations.  The five
categories of  permissible  supplemental  activities are  pollution
prevention, pollution  reduction, environmental restoration,
environmental  auditing projects, and  public  awareness  projects
which are directly related to addressing  compliance  problems
within the  industry within which the  violation took  place.  EPA
negotiators should make it clear to a defendant/respondent
interested  in  proposing a  supplemental  project that  the Agency is
looking only for these types  of projects  (cf. section  F, below'i .

     Under no circumstances will a  defendant/respondent be given
additional time to correct the  violation  and return  to compliance
in exchange for the"conduct of  a supplemental project.


B.   Categories of Supplemental Environmental Projects

     Five categories of projects will be  considered  as potential
Supplemental Environmental Projects,  subject to  meeting the
additional criteria described in succeeding  sections.

     1.   Pollution Prevention  Projects

     Consistent with the Agency's  forthcoming Pollution
Prevention Policy Statement and Pollution Prevention Strategy, a
pollution prevention project  substantially reduces or  prevents
the generation or creation of pollutants  through use reduction
(i.e., by changing industrial processes,  or  by substituting
different fuels or materials) or through  application of closed-
loop processes.  A project which substantially reduces the
discharge of generated pollutants  through innovative recycling
technologies may be considered  a pollution prevention  project ;:
the pollutants are kept out of  the  environment in perpetuity.

     2.   Pollution Reduction Proiects

     A pollution reduction project  is defined as a  project whicr.
goes substantially beyond  compliance  with discharge  limitations
to further reduce the  amount  of pollution that would otherwise ce
discharged into the environment.   Examples include  a project tr.3t.
reduces the discharge  of pollutants through  more effective end-
of-pipe or stack removal techno, j.,- .es;  through improved operator.

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and maintenance; or recycling of residuals at the end of the
pipe.2

     Sometimes an acceptable pollution reduction project may
encompass an "accelerated compliance project".  For instance,
assuming there is a statutory or regulatory schedule for
pollution phaseout or reduction (or is likely to be proposed in
the foreseeable future,  e.g., an upcoming rulemaking), if a
defendant/respondent proposes to complete a phaseout or reduction
at least 24 months ahead of time,  and such proposal for
accelerated compliance can be demonstrated to result in
significant pollution reduction (i.e., one can objectively
quantify a substantial amount of pollution reduction due to the
accelerated compliance)  then such a proposal may proceed to be
evaluated according to the rest of the appropriateness criteria
below.  In addition, if  the defendant/respondent substitutes
another substance for the one being phased out, he has the burden
to demonstrate that the  substance is non-polluting, otherwise no
supplemental environmental project will be allowed and, indeed,
additional liability may accrue.

     3.   Projects Remediating Adverse Public Health or
          Environmental  Consequences (Environmental Restoration
          Projects)

     An environmental restoration project is defined as a project
that not only repairs the damage done to the environment because
of the violation, but which goes beyond repair to enhance the
environment in the vicinity of the violating facility.

     4 .   Environmental  Auditing Projects

     Environmental Auditing that represents general good business
practices are not acceptable supplemental projects under this
policy (cf. Section E).1   However,  such a  project may  be
considered by the Agency if the defendant/respondent undertakes
additional auditing practices designed to seek corrections to
     1  Where the obligation to  reduce  the  pollution is  already
effective, or is subject to an "as soon as practicable"
or comparable standard,  a proposal to further reduce
pollution would not fulfill the definition of a pollution
reduction project,  and would not be appropriate.


     5  It should be noted  that  the Agency  has  the authority to
require an environmental audit as an element of injunctive
relief when it deems it appropriate given the fact  pattern
surrounding the violation subject to the usual limits on the
scope of  injunctive relief.

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existing  management  and/or  environnental  practices  whose
deficiencies  appear  to  be contributing to recurring or poter.cii 1
violations.   These other potential  violations  may encompass r.ct
only the  violating facility,  but  other facilities owned and
operated  by the  defendant/respondent,  in  order to identifv,
correct: 35 necessary, raanagenent  or environmental practi
could  lead tj recurring or  future violations of  the type  wr.icr.
are the basis for the enforcement action.'

     Audit projects  which fall  within  the scope  of  this policy
can be justified as  furthering  the  Agency's legitimate goal of
encouraging compliance with and avoiding,  as well as detecting,
violation of  federal environmental  laws and regulations.  Such
audits 'will not, however, be  approved  as  a supplemental project
in order  to deal with similar,  obvious violations at other
facilities.

     5.   Enforcement-Related Environmental Public  Awareness
          Projects

     These projects  are defined as  publications, broadcasts,
or seminars which underscore  for  the regulated community  the
importance of  complying with  environmental laws  or  disseminate
technical information about the means  of  complying  with
environmental  laws.  Permissible  public awareness projects nay
included sponsoring  industry-wide seminars directly related to
correcting widespread or prevalent  violations  within an industry,
e.g., a media  campaign funded by  the violator  to discourage fuel
switching and tampering with  automobile pollution control equip-
ment or one which calls for the defendant/respondent to organize
a conference  or  sponsor a series  of public service  announcements
describing how violations were  corrected  at a  facility through
the use of innovative technology  and how  similar facilities ccul:
also implement these production changes.

     Public Awareness Projects  directly serve  Agency deterrence
objectives and contribute indirectly to Agency enforcement
efforts.  Though  they are not  subject to the nexus requirement
applicable to  other  supplemental  environmental projects,  they
nust be related  to the type of  violations which  are/were  the
subject of the underlying lawsuit.  Defendants/respondents w.-.c
fund or implement a  public awareness project must also agree t_
publicly state in a  prominent manner that the  project was
undertaken as  part of the settlement of a lawsuit brought by ~r.-=
Agency or a State.   These projects  will be closely  scrutinized i.
ensure that they fulfill the  legitimate objectives  of this poi:.-.
in all respects.
         Of  course,  this requirement is subject to the
qualifications of footnote  1.

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     6 .   Projects Not Allowed as Supplemental Pro -)
     Several types of projects, which have been proposed in the
past, would no longer be approveable Supplemental Environner.-al
Projects.  Examples of projects that would not be eligible
include :

          1.   general educational or environmental awareness-
               raising projects (e.g., sponsoring public seminars
               about, or inviting local schools to tour, the
               environmental controls at a facility; promoting
               recycling in a community);

          2.   contribution to research at a college or
               university concerning the environmental area of
               noncompliance or concerning any other area of
               environmental study;

          3.   a project unrelated to the enforcement action, but
               otherwise beneficial to the community e.g.,
               contribute to local charity) .


C.   "Nexus" (Relationship) of Supplemental Environmental Project
     to the Violation

     The categories of Supplemental Environmental Projects
described above (except for Public Awareness Projects) may be
considered if there is an appropriate "nexus" or relationship
between the nature of the violation and the environmental
benefits to be derived from the type of supplemental project.
For example, the "nexus" between the violation and an
environmental restoration project exists when it remediates
injury caused by the same pollutant at the same facility giving
rise to the violation.  Such projects must further the Agency's
mission as defined by appropriate statutory mandates, including
the purpose sections of the various statutes under which EPA
operates. The Agency will evaluate whether the required "nexus"
between the pollutant discharge violation and the project exists.

     1 .   Requirements for Remediation Projects

Examples of circumstances presenting an appropriate nexus
include:

     a.   A project requiring the purchase of wetlands which then
          act to purge pollutants unlawfully discharged in
          receiving waters. In this example,  EPA will evaluate
          whether the required "nexus" between the pollutant
          discharge violations and the wetlands to be purchased
          can be established.  E?A will evaluate the nexus
          between the project and tr.e violation in terms of bctr.

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           geography  and  the  pollution  treatment  benefits of tr.e
           wetlands.

     b.    A  project  which  calls  for  the  acquisition  and
           preservation of  wetlands  in  the  immediate  vicinitv zt
           •.•;etlar=ds injured by  unlawful discharges,  in  orier 12
           replace ~he environmental  services  lost  by reason ~;
           such  injury.

      c.   A  "restoration"  project, such  as  a  stream  sediment
           characterization or  remediation program  to determine
           the extent and nature  of pollution  caused  by the
           violation  and to formulate and implement a plan for
           remediating sediment near  the  facility.  Such a strean
           sediment characterization  or restoration project, if
           obtainable as injunctive relief pursuant to  the
           statutory  provisions of the Clean Water Act  in the
           particular case, would not be  approveable  as a
           supplemental project.

     2.    Nexus for  Pollution  Prevention/Pollution Reduction/
           Environmental Restoration/Environmental Auditing
           Projects

     The "nexus" for pollution prevention,  pollution reduction,
environmental restoration  and  environmental auditing projects -a\
either be  vertical or horizontal, as described below.

     a.    Vertical "Nexus"

     A "vertical" nexus exists when  the  supplemental project
operates to  reduce pollutant loadings to a  given environmental
medium to  offset earlier excess  loadings of the  same pollutant in
the same medium which were created by the violation  in guestion.
Even if the  violations are corrected by  reducing pollutant
loadings to  the levels required  by law,  further  reductions may ce
warranted  in order to alleviate  the  risk to the  environment or
public health caused by past excess  loadings.  Typically, such
projects follow a violation back into the manufacturing process
to address the root  cause  of the pollution. Such reductions nay
be obtained  from the source responsible  for the  violation or,  ir.
appropriate  cases, may be  obtained from  another  source, either
upstream,  up gradient or upwind  of the responsible source.

     For example, if pollutants  were discharged  in violation of
the Clean  Water Act  from a facility  at a certain point along a
river,  an  acceptable pollution reduction project would be to
reduce discharges of that  same pollutant at an upstream facility
on the same  river.   Another classic  example of a "vertical"
pollution  prevention activity  is the alteration  of a production
process at a facility which handles  a  portion of the
manufacturing process antecedent to  that which caused  the

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violation of the regulatory requirement in a way that yields
reductions or total elimination of the residual pollutant
discharges to the environmental media assaulted by the violation.
Both of these examples present the necessary nexus between the
violation and the supplemental project.


     b. Horizontal "Nexus"

     A "horizontal" nexus exists when the supplemental project
involves either (a) relief for different media at a given
facility or b)  relief for the same medium at different
facilities.  The nexus between supplemental projects in this
category and the violation must be carefully scrutinized.  The
nexus will be met only if the supplemental project would reduce
the overall public health or environmental risk posed by the
facility responsible for the violation or enhances the prospects
for reducing or eliminating the likelihood of future violations
substantially similar to those which are the basis for the
enforcement action.  Approval of such projects is appropriate
only where the terms of the settlement insure that the
defendant/respondent'will be subject to required injunctive
relief prescribed by the compliance and deterrence policies
stated in the various Acts and their implementing regulations.
In those circumstances, the Agency believes the required nexus ts
the statutory goals has been met.

     Following are examples of approveable projects demonstrati.-.g
a "horizontal"  nexus to the violation:

1.   Violations of the Resource Conservation and Recovery Act
     (RCRA) or the Clean Water Act may have exposed the
     neighboring community to increased health risks because of
     drinking water contamination.  In addition to correcting
     these violations, it may be appropriate to reduce toxic air
     emissions  from the same facility in order to compensate for
     the excess health risk to the community which resulted frcn
     the RCRA or CWA violations.

2.   A supplemental project is proposed which reduces pollutant
     discharges at a defendant/respondent's other facilities
     within the same air quality basin or water shed as at the
     facility which violated legal requirements applicable to
     releases of the same pollutant.  In this case, the overall
     supplemental project would be designed to reduce the overa.l
     health or  environmental risk posed by related operations  -.-
     the environment or to the health of residents in the sane
     geographic vicinity by reducing pollutant discharges to t.".-2
     air basin  or watershed and to compensate for past excess
     discharges.

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 3.    A  supplemental  project  is  proposed  which  reduces pollutant
      discharges  at a defendant/respondent's  other  (non-
      violating)  facility(ies).   Such  a project would be
      approveable where  the violating  and non-violating facilities
      are  engaged in  the sane  production  activities  and use tiie
      sane  production processes,  where appreciable  risks of
      violations  and  legal requirements applicable  to releases
      of that same pollutant  substantially similar  to those at
      the  violating facility  are  posed by the non-violating
      facility(ies),  and where the  defendant/respondent can
      establish that  significant  economies of scale  would be
      achieved  by incorporating  pollution prevention process
      changes at  both the violating and non-violating facilities.
      Alternatively,  the settlement could call  for the defendant/
      respondent  to substitute input chemicals  across all such
      facilities  (e.g.,  replace  higher toxic  solvents with lower
      toxic solvents  at  all paint manufacturing plants) or to
      reduce the  emissions loadings of particular emissions at all
      such  facilities as part of  a  NESHAPS settlement.  Such
      projects  would,  therefore,  reduce the overall  health or
      environmental risk posed by such operations to the
      environment or  to  the health  of  residents in the same
      geographic  vicinity.

4.    In settlement of a Toxic Substances control Act (TSCA)
      PMN  (premanufacture notification) violation for
      manufacturing a polymer without  providing formal advance
      notice at a facility, the defendant/respondent could
      establish a closed loop recycling system  to reduce the
      amount of that  facility's  product manufacturing waste which
      must be sent to a  RCRA Subtitle  C landfill.  Operating the
      facility  in violation of TSCA created a risk of unwarranted
      health or environmental injury.   If TSCA  penalty and
      injunction  requirements have  been met,  then the supplemental
      project could be justified  on the grounds that it would
      compensate  for  this unwarranted  risk by reducing the overall
      health or environmental risk  presented  by the  facility.

      After the project  category  and "nexus"  criteria have been
      met, a potential supplemental project must also meet the
      criteria  described in tr-?:  tcllowing sections,  below. Most  c:
      the conditions  below appii=i  .   '    past,  but  some are new.
      All of these conditions must  bt   •_ before a  supplemental
      project may be  accepted.


D.    Status of the Enforcement  Action/Compliance History of
      Defendant/Respondent

      Any defendant/respondent against whom the Agency has taken
an enforcement action may propose  to  undertake a supplemental
project at any time  prior to resolution  of the action, although

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the Agency should consider both the status of the litigation/
administrative action and the resources that have been committed
to it before deciding whether to accept it.  In addition, the
respondent's enforcement history and capability to successfully-
complete the project nust be examined during evaluation of a
supplemental project proposal.

     The Agency negotiators must also consider whether the
defendant/respondent has the technical and economic resources
needed to successfully implement the supplemental project.  In
addition, a respondent who is a repeat offender may be a less
appropriate respondent from which to receive and evaluate a
supplemental project proposal than a first time violator.


E.   Main Beneficiary of a Supplemental Environmental Project

     The Federal Government's sole interest in considering
supplemental projects is to ameliorate the adverse public health
and/or environmental impacts of violations.  Projects are not
intended to reward the defendant/respondent for undertaking
activities which are. obviously in his economic self-interest
(e.g., update or modernize a plant to become more competitive).
Therefore, as a general rule, these projects will usually not be
approved when they represent a "sound business practice" , i.e.,
capital expenditures or management improvements for which the
Federal negotiators may reasonably conclude that the regulated
entity, rather than the public, is likely to receive the substan-
tial share of the benefits which accrue from it.

     The only exception to the prohibition against acceptance cf
a supplemental project which represents a "sound business
practice" is for a pollution prevention project.  Although a
pollution prevention project can be viewed as a "sound business
practice" since (by definition) it is designed both to make
production more efficient and reduce the likelihood of
noncorapliance, it also has the advantage of potentially providing
significant long-term environmental and health benefits to the
public.  Therefore, the "sound business practice" limitation will
be waived only for pollution prevention projects if the Federal
negotiators decide, after due consideration and upon a clear
demonstration by the defendant/respondent as to what the public
health and/or environmental benefits would be, that those
benefits are so substantial that the public interest would be
best served by providing additional incentives to undertake the
project.


F.   Extent to Which the Final Assessed Penalty can Reflect a
     Supplemental Environmental Project

     Although supplemental projects may directly fulfill EPA's

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                                10

goal  of  protecting and  restoring  the  environment,  there  is an
important  countervailing  enforcement  goal  that  penalties
should have  the  strongest possible  deterrent  effect  upon the
regulated  community.  Moreover, the Agency's  penalty  policies
require  the  assessment  of a  substantial  monetary  penalty
according  to criteria described in  " Implementing  EPA's Poiicv :.-.
Civil Penalties"  (GM-22),  generally at a level  which  captures tr.e
defendant/respondent's  economic benefit1 of noncompliance plus
some  appreciable  portion  of  the gravity  component  of  the
penalty.

      In  addition,  EPA must not lower  the amount it decides to
accept in  penalties by  more  than  the  after-tax  amount the
violator spends  on the  project.   EPA  should calculate the net
present  after tax  value of the supplemental project  at the tine
that  the assessed  penalty is being  calculated.  If a  supplemental
project  is approved, a  portion of the gravity component of the
penalty  may  be mitigated  by  an amount up to the net  present
after-tax  cost of  the supplemental  project, depending on the
level of environmental  benefits to  the public.
                         *-.

G.    Supplemental  Environmental Projects for  Studies

      Supplemental  Environmental Projects for  studies  will not be
allowed  without  an accompanying commitment to implement the
results.  First, little or no environmental benefit may result i
the absence  of implementation.  Second,  it is also quite possible
that  this type of  project is one  which the violator could
reasonably be expected  to do as a "sound business  practice".

      Pollution prevention, pollution  reduction  and environmental
restoration  studies, as well as environmental audits, are defir.ed
narrowly for  purposes of  meeting  Supplemental Environmental
Project  policy guidelines.  They  will only be eligible as
supplemental  projects if  they are a part of an  Agency-approved
set of actions to  reduce,  prevent,  or ameliorate  the  effects  of
pollution at  the respondent's facility (e.g., a comprehensive
     4    Where a violation is found which did not confer a
significant economic benefit, e.g.  a  failure  to  notify, the
settlement must still  include payment of  a  penalty which  at least
captures a portion of  the proposed  gravity  component.


     6   If  a  defendant/respondent can establish through use of
documents and affidavits sworn  under  penalty  of  perjury that  it
cannot afford to pay the civil  penalty derived from  use of the
appropriate civil penalty policy,  the Agency  will consider
entering into an "ability to pay  settlement"  for less  than the
economic benefit of non-compliance.

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                                11

waste minimization or emissions reduction program).  The ancunt
attributable to a supplemental project may include the costs of
necessary studies.  Nonetheless, a respondent's offer to conduct
a study, without an accompanying commitment to implement the
results, will not be eligible for penalty reduction.  In
considering the applicability of a proposed study, the Agency
negotiators will consider the likelihood of success, i.e.,
substantial pollution reduction or prevention, in making a
determination.

     While studies are not by themselves eligible supplemental
environmental projects,  to encourage pollution prevention, EPA
will make a limited exception to this general approach for
pollution prevention studies.  Such studies will be eligible for
a penalty offset when they are part of an Agency-approved set cf
pollution prevention activities at a facility and are designed to
correct the violation (e.g.,  a recycling feasibility study, waste
minimization opportunity assessment, or waste reduction audit).

     The size of the penalty offset may include the costs of the
studies.  The commitment to conduct the study also must be
tangible (e.g., the-:project completed on schedule, etc.).  The
U.S. must have the authority to review the completed study to
decide whether it is technologically and/or economically feasible
to implement the results.  Should the U.S. decide that the
results can be implemented but the defendant/ respondent is
unwilling to do so, the "offset" for the pollution prevention
study will be rescinded and the final assessed penalty must be
paid in full (cf. Section J.  on payment assurance).


H.   Substitute Performance of Supplemental Environmental
     Projects

     A supplemental environmental project which meets the other
criteria of this policy may consist in part or whole of
substitute performance by an entity or entities other than the
violator.  Such a substitute must bear a reasonable geographical
or media-specific relationship to the underlying violation.  This
substitute performance must be assured through agreements which
are enforceable by EPA,  and may consist of agreements for
emissions limits, process design or input changes, natural
resource preservation or conservation easements, or other means
of achieving compliance with the terms of the proposed
supplemental environmental project.  In the event a violator
proposes acceptable substitute performance, EPA will credit the
violator with an amount up to the net after tax cost of the
project as if it were being performed by the violator.  The
violator, will, however, remain responsible for the performance
of the project or the payment of the penalty offset if substitute
performance is not completed.

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                                12

 I .    Level  of  Concurrence

      There  may be practical  problems in administering  cross-
 nedia  and/or cress-regional  projects.   Staff  allocations  for
 oversight requirements will  necessarily increase,  as will  the
 level  of  resources needed for tracking purposes  since  trackir.7  ;
 supplemental project is more complex than  tracking whether  a
 payment  is  made.   In addition,  the  likelihood of new issues
 emerging due to noncompliance with  the conditions  of the  project
 is  significant.

     The extant of coordination/concurrence for  a  supplemental
 project  which  involved more  than  one Region will vary  according
 to  the nature  and complexity of the proposal.  All affected
 Regions  must be notified about  a  supplemental  project  which would
 have only a modest impact on facilities in those Regions  (e.g., a
 commitment  to  undertake an environmental audit at  all  of the
 defendant/respondent's facilities across the  country).  However,
 all affected Regions would have to  concur  in  a proposed
 supplemental project which would  involve significant oversight
 resources or activities (e.g.,  a  pollution prevention  activity
 which  required majoc<-construction or process  changes).  Also, all
 affected EPA parties must be consulted on  their  respective
 oversight responsibilities.   As stated previously,  judicial
 settlements, including any of  the projects described herein, will
 continue to require  the approval  of the Assistant  Administrator
 for Enforcement and  also be  approved by the Assistant  Attorney
 General for the Environment  and Natural Resources  Division.

     Each proposed administrative settlement  which has a
 "horizontal" nexus to the violation or which  involves  substitute
 performance also  must be approved by the Assistant Administrator
 for Enforcement and,  where required by the Agency's delegations
 policy, the media Assistant  Administrator.


J.   Oversight/Tracking

     Supplemental  Environmental Projects may  require third-party
oversight.  In  such  cases, these  oversight costs should be borr.e
by the respondent, and it must  agree as a  part of  the  settlemen"
to pay  for an  independent,  third-party auditor  to monitor the
status of the  supplemental project.   The auditor will  be require-
by the settlement  to submit  specific periodic  reports, including
a final report  evaluating the success  or failure of the
supplemental project,  and the degree to which  the  project
satisfied these guidelines.   All  reports must  be submitted to
EPA.  Upon  request,  EPA may  provide copies of  the  reports, or
copies of portions of  the reports,  to  the  respondent.  The timi"
and amount  of  reports  released  to the  defendant/respondent shall
be at EPA's sole  discretion.

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                                13

     Obviously, a certain amount  of government oversight will ce
required to monitor compliance with the terms of an agreement
that contains a supplemental project.  "Horizontal" pollution
prevention or pollution reduction supplemental projects which
involve more than one Region (e.g., production changes at ncre
than one facility) may require additional oversight, and the
estimated amount of time and resources required  for effective
oversight is another criteria which the negotiators should use to
determine whether to include the  project in the  settlement
agreement.

     The consent order or decree  shall specify overall timeliness
and milestones to be met in implementing the supplemental
project. If the defendant/respondent does not comply
satisfactorily with the terms of  the supplemental project, he
shall be liable for the amount by which the assessed penalty was
reduced (with applicable interest).  The consent order or decree
should contain a mechanism for assuring prompt payment, e.g.,
through stipulated penalties consistent with the other sections
of this policy or, if appropriate, the posting of a bond (in the
amount by which the assessed penalty was reduced) to be forfeited
if the supplemental-"project is not fully implemented.


K.   Documenting Approval Of Supplemental Environmental Project
     Proposals

     In all cases where supplemental projects are approved as
part of the settlement, the case  file should contain
documentation showing that each of the appropriateness criteria
listed above have been met in that particular case.  A copy of
the evaluation and approval document shall be sent to the Office
of Enforcement and the National Compliance Officer concurrent
with the approval of the Regional Administrator, or other
authorized approving official,  and to the Assistant Attorney
General for the Environment and Natural Resources Division.
L.   Coverage of this Policy

     This document revises and supercedes the appropriate
sections of the Agency's general civil penalty policy (GM-22),
and constitutes Agency policy relating to supplemental environ-
mental projects.  .Media-specific penalty policies will be revised
as soon as possible to be consistent with it.  During this
interim period, in the event of any conflict between this general
policy and a media-specific policy, this policy is controlling.

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FINANCIAL RESPONSIBILITY REQUIREMENTS

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tV.  FINANCIAL RESPONSIBILITY REQUIREMENTS

A. Owner/Operators of all  RCRA treatment, storage,  and disposal
   facilities are required to obtain and maintain the following
   forms of financial assurances.

   1)    Financial assurance for closure and,  if appropriate.
        post-closure care.  As a condition  of operation of the
        facility, the owner/operator must demonstrate to the
        Agency that it has the financial wherewithal  to complete
        closure of the facility.  The owner/operator  can
        accomplish this by passing a test designed to indicate
        the probability that the company will not go  bankrupt or
        by establishing or purchasing one of  the other forms of
        assurance allowed  by the regulations.  See 40 C.F.R.  §§
        264.143,  264.145,  265.143,  and 265.145.

   2)    Liability Coverage.   The regulations  also require the
        owner/operator to  provide protection  to third parties
        that are injured or whose property  is damaged by the
        operation of the hazardous waste management facility.
        This protection can take the form of  liability coverage
        insurance or some  other mechanism available under the
        regulations.  See  40 C.F.R.  §§ 264.147 and 265.147.

B. The importance of these requirements can not be understated.
   Congress singled out these requirements  as one of  the two sets
   of requirements that land disposal facilities must comply with
   in order to remain in operation after the  Loss of  Interim
   Status (LOIS)  deadline, 42 U.S.C.  § 6925(e)(2).

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INDIVIDUAL LIABILITY OF CORPORATE
       OFFICERS UNDER RCRA

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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      DEC 1 2 1990
MEMORANDUM
SUBJECT:
FROM:
          Individual Liability of Corporate Officers as
          Operators Under RCRA
          Kathie Stein
          Acting Associate Enforcement Counsel
             for RCRA
          Bruce M. Diamon
          Director, Office
                              Waste Programs Enforcement
TO:
          John R. Barker
          Regional Counsel,  Region IV

          Donald J. Guinyard
          Acting Director,
             Waste Management Division,  Region IV

     It has come to our attention that The Honorable Timothy 3.
Dowling, Administrative Judicial Officer,  has issued his final
decision in the Resource Conservation and Recovery Act ("RCRA")
Section 3008(a) case,  Southern Timber Products, Inc., and Erax
Batson, (Appeal No. 89-2).   Judge Dowling's decision overturned
the findings of Chief  Administrative Law Judge Gerald Harwood
that Erax Batson was individually liable because of the
responsible part he played  in the violations of the rules
regulating closure and post-closure care of surface impoundments
at interim status facilities under RCRA.  Judge Dowling,  in
footnote 49 of his decision, has invited the Region to move for
reconsideration under  40 C.F.R. S 22.22  if the Region continues
to believe that Mr. Batson  should be held personally responsible
for such post-closure  care.

     In the decision,  Judge  Dowling expressed concern that,
during his research, he was  unable to locate any specific
guidance from the Agency that it has a policy of naming corporate
officers in RCRA cases where the officer takes on the role of the
operator.   The reason  for the absence of such specific guidance
is that, as case law has developed under the various
env"   -unental statutes and regulations,  the Agency has followed
thi    actice of naming such corporate officers as operators
where the facts and the case law supported this theory of
liability.

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     In light of Judge Dowling's concern however, the purpose of
this memorandum is to clarify what the national enforcement
practice has been, to date, regarding the imposition of
individual and personal liability on the officers of a corporate
operator under RCRA S 3008(a), when theories for piercing the
corporate veil are not necessarily relied upon.  The case law is
developing, and there are few cases that have reached the stage
of a decision or that have not been settled prior to going to
hearing.  However, the following cases are illustrative of the
Agency's approach to this issue.

     The Agency frequently has sought to hold corporate officers
liable as operators under RCRA S 3008 due to their personal
participation in the corporate actions which violated RCRA.  Some
of the civil judicial cases where this practice has been followed
include: U.S. v. Proteccione Tecnica Ecoloqica. Inc.. et al.
(Civ. Action No. 86-1698, U.S. Dist. Ct. D. P.R., complaint filed
October 30, 1986); U.S. v. Bayonne Barrel and Drum Co.. et al.
(Civ. Action No. 87-786, U.S. Dist. Ct. D. N.J., complaint filed
March 4, 1987); U.S. v. ILCO. Inc.. (Civ. Action No. CV-85-H-
823-S, U.S. Dist. Ct. N.D. Ala., complaint filed March 18, 1985);
U.S. v. Escambia et al. (Civ. Action No. 88-30328-RV, N.D. Fla.,
complaint filed September 30, 1988); U.S. v. Sanders Lead et al.
(Civ. Action No. 89-T-1123-N, U.S. Dist. Ct. M.D. Ala., amended
complaint filed September 13, 1990); U.S. v. Conservation
Chemical et al. (Civ. Action No. H 86-9, U.S. Dist. Ct. N.D.
Ind., complaint filed January 6, 1986); U.S. v. Environmental
Waste Control. Inc. et al. (Civ. Action No. S87-55, U.S. Dist.
Ct. N.D. Ind., complaint filed February 2, 1987); U.S. v.
Production Plated Plastics. Inc. et al. (File No. K87-138 CA,
U.S. Dist. Ct. W.D. Mich, So. Div., complaint filed March 31,
1987) ; and U.S. v. Northway Industries. Inc. (Civ. Action No.
90-7-1-546, U.S. Dist. Ct. E.D. Mich., complaint filed October
19, 1990).

     Several Regions have also filed administrative actions under
RCRA S 3008 naming such corporate officers as individually liable
operators.  Some of these cases include: In the Matters of; Dana
Corp.. Victor Products Division and BRC Rubber Group  (RCRA Docket
Nos. VW-90-R-14 and VW-90-R-15, amended administrative complaint
filed September 25, 1990); In Re: Ronald Coffman d.b.a. Coffman
Body Shop and Estrada. Inc. (RCRA Docket No. VII-88-H-0014,
administrative complaint filed March 31, 1988); and In Re: Triggs
Trailer Corp. (RCRA Docket No. VII-88-H-0004, amended
administrative complaint filed July 14, 1988).

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     In addition,  please take note of  the two attached memoranda.
On May 27, 1986,  Lloyd S.  Guerci,  Director of the RCRA
Enforcement Division advised RCRA  Enforcement Branch Chiefs in
all Regions that  with respect to actions regarding the closure of
land disposal facilities,  "it is very  important to consider
naming individuals who participated in the regulated activity."
Mr. Guerci made this statement in  order to stress the problems
which arise when  final orders for  closure are issued against
corporations with little or no assets.   This memorandum is
directly applicable to considerations  which arose when Mr. Batson
was named a defendant in Southern  Timbers.

     In July of 1988, Steve Heare, Acting Director of the RCRA
Enforcement Division and Steve Leifer,  Acting Associate
Enforcement Counsel for Waste, Office  of Enforcement and
Compliance Monitoring, released a  memorandum emphasizing "the
importance of naming both the owner and operator as respondents
to corrective action orders.*1  This assures making owners and
operators jointly liable for completion of the work.  This
memorandum emphasizes the Agency's practice of naming all
"persons'* who may be held liable as owners and operators in
administrative orders.

     The cases cited above demonstrate that the Agency has viewed
RCRA as permitting a finding of corporate officer liability
without piercing  the corporate veil.   We have sought findings of
liability based on a reading of the term "operator", (defined in
40 C.F.R. S 260.10 as "the person  responsible for the overall
operation of a facility"), which includes a corporate officer who
authorizes, controls or personally participates in the violating
activity.  The Agency expects to continue to name such corporate
officers personally liable as operators under RCRA in appropriate
cases.  In conclusion, we hope that the discussion provided here
will clarify what the Agency's practice has been to date with
regard to this issue.


cc:       Regional Counsels
               Regions I-III, V-X
          Waste Management Division Directors
               Regions I-III, V-X
          James M. Strock, Assistant Administrator
               Office of Enforcement
          Don R.  Clay, Assistant Administrator
               Office of Solid Waste and Emergency Response
          Robert  Van Huevelen, Department of Justice
        The J.V.  Peters  &  Co.  decision,  originally attached to
Mr. Guerci's memorandum, is not enclosed here.

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          UNITED 3TATCS ENVIRONMENTAL PROTECTION AGENCY
MEMORANDUM

SUBJECTS  Owner and Operator Responsibility for
          Corrective Action
FROMi     Steve Heare,  Acting Director
          RCRA Enforcement Division

          Steve Leifer, Acting Associate
            Enforcement Counsel for Waste
          Office of Enforcement end Compliance Monitoring

TOi       Waste Management Division Directors,
          Regions I-X


     The purpose of this memorandum is to emphasis* the
importance of naming both the owner and operator as respondents
to corrective action orders.   The Agency is atatutorily
authorised, and pursuant to certain provisions required, to
implement regulations applicable to both ownera and operators of
hazardous waste management facilities.  In most cases the owner
of a facility is also the operator, or the operator is the agent
of the owner, operating the facility for the benefit of the
owner,  in either case, the liability of the owner is clear.

     In some instances, however, the operator of a facility is
not the employee or agent of the property owner and therefore not
aoting on behalf of the owner,  in any event, you must assure
access to the affected  property, so that any corrective action
required pursuant to sections 3008(h), 3013, or 7003, negotiated
or issued unilaterally, will be completed.  This assurance is
obtained by making the  owner and the operator jointly liable for
completion of the work.

     Also, the Agency's authority to assess penalties is limited
to those parsons ntaed  on the order.  Section 3008(h)(2) states
•••• If any person named in an order fails to comply with the
order, tba Administrator may assess, and such parson shall be
liable to the Onited States for a civil penalty in an amount not
to exceed |2570ff -tor each day of noncompliance with the order.*

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                               -2-


     Nhile nothing in the statute precludes EPA from issuing
separate order* to owners and operators of facilities, it is not
as practical to do so.  if a negotiated order is in effect at a
facility, a subsequently issued order would have to contain
provisions that would not conflict with any requirements in the
existing order.  Also, the issuance of the second order is
likely to disrupt corrective action and it also places an
unnecessary resource burden on the Region.

     If you have any questions regarding this issue, please call
Susan Hodges in the Office o( Waste Programs Enforcement.  She
can be reached on 475-9315.

ect  RCRA Enforcement Branch Chiefs,
     Regions I-X

     RCRA Enforcement Section Chiefs,
     Regions I-X

     Hazardous Waste Branch Chiefs,
     Regions I-X

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                        WAftHINOTON. C.C. 1O400
                                                   WACTl
                                                             Of
                                                          (M| ACCNCv
May 27, 1986

MEMORANDUM

SUBJECTS Drafting of initial complaints to name individuals
         •a reapondents

FROM.    Lloyd S. Guerci,  Director  ~~"  J
         RCRA Enforcement  Division

TOt      RCRA Enforcement  Branch Chiefs, Replona f-X
         Enclosed it a decision in an enforcement proceeding
against J.  V.  Peters t Company (Appeal to Administrator No*
85-4, May 9,  1986)  where  tho Region Attempted to add parties
after the hearing*   The Region's attempt was rejected and the
matter was  remanded to the Repion.

         We expect  that in a fair number of cases against
closing land  disposal facilities, the corporation will not
have adequate  assets to effectuate the necessary relief
(or will have  effectively transferred the assets in an attempt
to hide them)*  At  the time that the initial complaint or
order it written, it la very important to fonsider naming
individuals who participated in the regulated activity. ""
A Hnal ocdlkf l pi in ML a uurporition W.tn no lUtfU ii i
hollow victory* .  Zt may prove difficult to add individuals
•s respondents after the initial procee'dlngs are commenced*

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OTHER MEMORANDA

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
                       JAN
                                                    OFFICE OF F.NFORCFMFN I
                                                      ANnCOMPLUM'F ,.•;.
                                                        MONITORING
MEMORANDUM
SUBJECT:
FROM:
TO:
Expansion of Direct Referral of Cases to the
Department of Justice
Thomas L. Adams, Jr.
Assistant Administrator"
                                                K.
Regional Administrators, Regions I - X
Deputy Regional Administrators, Regions I
Regional Counsels, Regions I - X
Assistant Administrators
Associate Enforcement Counsels
OECM Office Directors
                                                    - X
I.  BACKGROUND

     During the past year, my office has worked closely with
the Regions, the Headquarters program offices, and the Land
and Natural Resources Division of the U.S. Department of
Justice  (DOJ) to expand the use of direct referral of cases.
On January 5, 1988, EPA and DOJ entered into an agreement
which expanded the categories of civil judicial cases to be
referred directly to DOJ Headquarters from the EPA Regional
offices without my prior concurrence.  In entering into this
agreement, EPA has taken a major step towards streamlining
the enforcement process and more fully utilizing our Regional
enforcement capabilities.

     On January 13, 1988, the Administrator signed an interim
delegations package which will allow the Agency to immediately
implement expanded direct referrals to DOJ.  A final delega-
tions package is now being prepared for Green Border review.

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     This memorandum provides guidance to EPA Headquarters
and Regional personnel regarding procedures to follow in
implementing the expanded direct referral agreement.  Prior
guidance on direct referrals appears in a November 28, 1983,
memorandum from Courtney Price entitled "Implementation of
Direct Referrals for Civil Cases Beginning December 1, 1983.
That guidance is superseded to the extent that the current
guidance replaces or changes procedures set forth therein;
otherwise the 1983 document remains in effect.
II.  SUMMARY

     Effective immediately for non-CERCLA cases, and effec-
tive April 1, 1988, for CERCLA cases, the Regions will
directly refer to the Department of Justice all civil oases
other than those listed in the attachment to this memorandum
entitled "Cases Which Will Continue to be Referred Through
Headquarters."  This attachment lists cases in new and
emerging programs and a few, highly-selected additional
categories of cases where continued referral through EPA
Headquarters has been determined to be appropriate.  EPA
Headquarters will have 35 days to review the case simul-
taneously with DOJ.  EPA Headquarters will focus its review
primarily on significant legal or policy issues.  If major
legal or policy issues are raised during this review, EPA
Headquarters will work with the Region to expedite resolu-
tion.

     Attached is a copy of the agreement between EPA and DOJ,
which is incorporated into this guidance.  Many of the
procedures for direct referral of cases are adequately
explained in the agreement.  However, there are some points I
would like to emphasize.
III.  PROCEDURES

     A.  CASES SUBJECT TO DIRECT REFERRAL

     The attached agreement lists those categories of cases
which must continue to be referred through the Office of
Enforcement and Compliance Monitoring  (OECM).  All other
cases should be referred directly by the Regional Office to
DOJ Headquarters, with the following two exceptions:

     (1)  cases which contain counts which could be directly
     referred and counts which require prior EPA Headquarters
     review should be referred through EPA Headquarters, and

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      (2)  any referral which transmits a consent decree
      should be referred through EPA Headquarters, except
      where existing delegations provide otherwise.

If you are uncertain whether a particular case may be
directly referred, you should contact the appropriate
Associate Enforcement Counsel for guidance.

      B.  PREPARATION AND DISTRIBUTION OF REFERRAL PACKAGES

      The contents of a referral package (either direct to DOJ
or to EPA Headquarters) should contain three primary divi-
sions:  (1) a cover letter; (2) the litigation report; (3) the
documentary file supporting the litigation report.

      The cover letter should contain a summary of the •
following elements:

      (a)  identification of the proposed defendant(s);

      (b)  the statutes and regulations which are the basis
          for the proposed action against the defendant(s);

      (c)  the essential facts upon which the proposed action
          is based, including identification of any signi-
          ficant factual issues;

      (d)  proposed relief to be sought against defendant(s) ;

      (e)  significant or precedential legal or policy issues;

      (f)  contacts with the defendant(s),  including any
          previous administrative enforcement actions taken;

      (g)  lead Regional legal and technical personnel;

      (h)  any other aspect of the case which is significant
          and should be highlighted, including any extra-
          ordinary resource demands which the case may
          require.

     A direct referral to DOJ is tantamount to a certifi-
cation by the Region that it believes the case is suffi-
ciently developed for filing of a complaint, and that the
Region is ready, willing and able to provide such legal  and
technical support as might be reasonably recruired to pursue
the case through litigation.

     Referral packages should be addressed to the Assistant
Attorney General, Land and Natural Resources Division, U.S.
Department of Justice, Washington D.C. 20530.  Attention:

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  Chief, Environmental  Enforcement Section.  Copies of all
  referral packages  should also be sent to the Assistant
  Administrator  for  OECM and the appropriate Headquarters
  program offioe.

       DOJ has reaffirmed the time frame of the Memorandum of
  Understanding, dated  June 15, 1977, for the filing of cases
  within 60  days after  receipt of the referral package, where
  possible.   DOJ can request additional information from a
  Region on  a case or return a case to a Region for further
  development.   In order to avoid these delays, referral
  packages should be as complete as possible and the Regions
  should work closely with DOJ to develop referral packages.

       C.  IDENTIFICATION AND RESOLUTION OF SIGNIFICANT LEGAL
             AND  POLICY  ISSUES

       A major element  in assuring the success of the expanded
  direct referral program is an efficient process to identify
  and resolve significant legal and policy issues.  This should
  be done as early as possible to assure that unresolved issues
  not delay  a referral.   Early identification and resolution
  will also  help the Agency to avoid devoting significant
  Regional resources to preparing a litigation report for a
  case which will ultimately be considered inappropriate for
  referral.

       The procedures make clear that the Regional office has
  the initial responsibility for identification of significant
  legal and  policy issues.  Such issues should be identified to
  OECM and the appropriate Headquarters program office as soon
  as a decision  is made to proceed with litigation.  All
  parties should then work to address the issues as quickly as
  possible,  preferably  before the referral package is sent to
  Headquarters.

       The agreement with DOJ also outlines procedures for
  Headquarters review of referral packages to determine whether
  any significant legal or policy issues exist which would
^__impact filing, and the process for resolution of such issues.
\  If an issue surfaces  during the 35-day Headquarters review
1  period, OECM will  work for quick resolution of the issue,
\ with escalation as necessary to top Agency management.  This
^should serve primarily as a "safety valve" for those few
  issues not previously identified, rather than as the point at
  which issues are first raised.

       Finally,  if DOJ  raises a significant legal or policy
  issue during its review, OECM will work with the Region and
  the Headquarters program office to expedite resolution of the
  issue.  If DOJ makes  a tentative determination to return a

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referral, DOJ will consult with OECM and the Regional Office
in advance of returning the referral.

     D.  CASE QUALITY/STRATEGIC VALUE

     OECM will evaluate Regional performance as to the
quality and strategic value of cases on a generic basis.
While OECM will not request withdrawal of an individual
referral based on concerns about quality or strategic value,
it will consider these factors during the annual audits of
the Offices of Regional Counsel and the annual Regional
program office reviews.  Concerns relative to issues of
quality or strategic value will also be raised informally as
soon as they are identified.

     E.  WITHDRAWAL OF CASES PRIOR TO FILING

     Cases should be fully developed and ready for filing at
the time they are referred to DOJ Headquarters.  Thus, case
withdrawal should be necessary only under the most unusual
circumstances.  If, after consultation with OECM, withdrawal
is determined to be appropriate, the Regions may request that
DOJ withdraw any directly referred case prior to filing.
Copies of the Region's request should be sent to the Assis-
tant Administrator for OECM and the appropriate program
office.

     F.  MAINTENANCE OF AGENCY-WIDE CASE TRACKING SYSTEM

     In order to assure effective management of the Agency's
enforcement program, it is important to maintain an accurate,
up-to-date docket and case tracking system.  Regional
attorneys must continue to report the status of all cases.
including directly referred cases, on a regular basis through
use of the national Enforcement Docket System.  All infor-
mation for the case required by the case docket system must
appear in the docket and be updated in accordance with
current guidance concerning the automated docket system.


     If you have any questions concerning the procedures set
forth in this memorandum, please contact Jonathan Cannon,
Deputy Assistant Administrator for Civil Enforcement, at
FTS 382-4137.

Attachment

cc:  Hon. Roger J. Marzulla
     David Buente
     Nancy Firestone
     Assistant Section Chiefs

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     I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    /               WASHINGTON, D.C. 20460
: ««o't0                             o .,
                                                        OFFICE OF
                                                      ENFORCEMENT AND
                                                     COMPLIANCE MONITORING
Honorable Roger J. Marzulla
Acting Assistant Attorney General
Land and Natural Resources Division
Washington, D.C.  20530

Dear Roger:

     As you know, the Agency has been considering changes in
existing procedures to increase the effectiveness of its enforcement
program.  One change, which we discussed at our recent*meeting with
you, is a major expansion of the direct referral program for civil
judicial enforcement actions, whereby such cases are referred
directly from the Regional Administrators to your office.

     We believe the past successes of this program and .the
increased maturity of Regional staff warrant adopting direct
referrals as the basic mode of operation.  Thus, with your
acceptance, we intend to utilize direct referrals to your office
for virtually all civil cases other than those relating to certain
new statutory authorities or emerging programs where judicial
enforcement experience is limited.  As such programs mature, we
will expand the scope of direct referrals to cover them.  In
addition, as new programs are implemented under new statutory or
regulatory requirements, we contemplate an initial period of
referrals through Headquarters for these cases prior to their
incorporation into the direct referral process.

     Based on discussions within the Agency and with your staff,
we would propose that direct referrals cover all civil cases but
those listed in Attachment A.  This list includes cases in new and
emerging programs and a few, highly-selected additional categories
of cases where continued referral through Headquarters has been
determined to be appropriate.  This would allow direct referral of
the vast majority of civil cases, including those which would still
require significant national coordination to assure a consistent
approach (such as auto coating VOC air cases).  For this reason,
the procedures applicable to this small subset of cases as outlined
in the memorandum entitled "Implementing Nationally Managed or
Coordinated Enforcement Actions:  Addendum to Policy Framework for
State/EPA Enforcement Agreements" dated January 4, 1985 will remain
in effect.

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                                  -2-
      For all but CERCLA  cases,  this expansion would be effective
 on January 1,  1988.   For CERCLA cases,  direct referrals would take
 effect on April 1,  1988.   We  anticipate joint issuance by our
 offices of the model  CERCLA  litigation  report prior to that date.

      Also attached  (Attachment  B)  is the outline of the direct
 civil referral process as the Agency intends to implement it.
 This outline refines  current  direct referral procedures by more
 clearly focusing authority and  accountability within the Agency.

      Under these modified procedures,  the Regional Office has the
 lead on direct referrals.   The  Region will be solely responsible
 for the quality of  the referral.   In this context, quality
 encompasses both the  completeness  and  accuracy of the litigation
 report and the strategic  value  of  the case.   Any problems
 involving case quality should be raised directly with the Region.

      OECM will evaluate  Regional performance as to the quality
 and strategic value of cases  on a  generic basis.  While OECM will
 not request withdrawal of an  individual referral on the basis of
 concerns about quality or strategic value, we are committed to
 working with the Regional Offices  to assure that current standards
 are maintained or even exceeded in future referrals.  We welcome
 your input on Agency  performance to assist us in this regard.

      As the procedures detail,  OECM (as well as the appropriate
 Headquarters office)  will continue to  be actively involved in
 identification and  resolution of siqnif_lcjan.t—leqal_.and policy
 is~sues^.  Sjuch  issues  normally...should -be raised -and. reso.i,ved.'.-prior
 tjS^jEhe^.ac t ual... referral.   If ..such an issue s.ur.f.ac.es-dur-ijtq-the	•
£35j^day geadquarters review .period, we  will work for quick resolution
 of the~"issue, with  escalation as necessary"to top Agency management.
 During the period required for  resolution, DOJ..will treat the
 referral as ^-pntfihQlcl^   In the_umjjSuaJL_.circumstance where- an  issue
 is still unresolved^ after 6"0~~clays  from  the date of referral, . we
 would "contemplate "withdrawal ~of thfeT referral by the Agency pending
 rers"b~Tutibh unless a formal "hold"  letter has been submitted in
 acc-ordajncje_with .the procedures  contained in the memorandum entitled
 "Expanded Civil Judicial  Referral  Procedures" dated August 28,
 1986'.

      If a significant policy  or legal  issue is raised by DOJ during
 its review, OECM remains  committed to work with the Regional and
 program offices to  assure expedited resolution of the issue.
 Obviously, these procedures  are not intended to inhibit discussions
 between our offices to facilitate  a resolution.  In addition,  if
 DOJ makes a tentative determination to  return a referral, we
 understand that you will  consult with OECM and the Regional Office
 in advance of returning  the  referral.

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                                -3-
     We believe this expansion in use of direct referrals represents
a major advance in streamlining the Agency's enforcement process
and appreciate your support in its implementation.  This letter,
upon your acceptance, will supersede the letters of September  29,
1983, October 28, 1985, and August 28, 1986 on this subject and
constitute an amendment to the June 15, 1977 Memorandum of
Understanding between our respective agencies.

     I appreciate your continuing cooperation and support in our
mutual efforts to make our enforcement process more effective.  I
hope this letter meets with your approval.  If so, please sign  in
the space provided below and return a copy of the letter to me  for
distribution throughout the Agency.

                             Sincerely,
                             Thomas L. Adams, Jr.
                             Assistant Administrator

Attachments

Approved:
Roger J. Marzulla        '  x
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
                                                       Date

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              RESPONSIBILITIES AND PROCEDURES  FOR  DIRECT REFERRALS
       OF CIVIL JUDICIAL ENFORCEMENT ACTIONS TO  THE  DEPARTMENT OF JUSTICE


           (1)  Regional Offices have  the  lead on  direct referrals to
      the Assistant Attorney General,  Land and Natural  Resources Division,
      Department of Justice ( DOJ ) ; Regions will  be responsible for
      the quality of referrals.

           ( 2 )  Regions will identify  any  slanif.ic.ant.-leQa I-/ policy -issues
      as soon as the decision is made  to proceed with  litigation.  Such
      issues  will be raised in writing for consideration by OECM and the
      appropriate Headquarters program office.   All  parties will attempt
      to resolve such issues as early  as possible, pr e f e r ab.J..y— i)e fore the
      referral package is sent to Headquarters.  Regions -will-also f.lag
      sjicJi _fssfue s~ ~iri' '.the ,.coye r jnemo transmitting the referral.

           (3)  At the same time the referral  is sent  to DOJ, it will be
      sent to OECM and the appropriate Headquarters  program office for a
      simultaneous and independent review  to determine  whether any other
      significant policy/legal issues  exist which  would impact filing.

           (4)  Headquarters offices will complete their reviews within
      35 days of receipt of the referral.  Each  Headquarters office will
i   ,.  " notify the _J?egioji^n_wjr-iJLlnQ^f— ajiy.— sl.a.a.Lf-i-c-ar>4^-i-ssue-s.^identi.fl-ed
      QJC--t.haj>saQ- j5jjg>yLis iSiu.es have been_.id.e,nj:j.fiecL.  A copy of t
      memorandum wTlbe sent to DOJ.  The  Headquarters offices w
      coordinate jtneir^nrgvT6i»g^crrrd°r"to rtj?e~  ext ent_jpossible ,
           (5)  If significant issues are  identified and not readily
      resolved, Headquarters (the Assistant  Administrator for OECM),
      after consultation with the program  office  Assistant Administrator,
      may request the Regional Administrator to withdraw the case.  If
      the Regional Administrator and the Assistant Administrator for OECM
      (and, as applicable, the program office Assistant Administrator)
      are unable to agree on the appropriate resolution of the issue, the
      issue would be escalated to the Deputy Administrator.

           (6)  If a significant issue is  not resolved within 60 days of
      the date of referral, the case will  normally be withdrawn pending
      resolution unless an appropriate "hold" letter is sent to DOJ in
      accordance with the procedures contained in the memorandum entitled
      "Expanded Civil Judicial Referral Procedures" dated August 28, 19R6
      (document GM-50 in the General Enforcement  Policy Compendium.)

           (7)  Headquarters will NOT request withdrawal of a referral
      package for any of the following reasons:

                -- overall quality of referral package
                -- strategic value of case
                -- adequacy of documentation

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                                 -2-
      (8)   If DOJ makes a tentative decision to return a  referral
 to EPA,  it will consult with the Regional Office and OECM prior
 to making a final decision to return the case.

      (9)   Headquarters will evaluate on a generic basis  (e.g.,
 trends  or repeated concerns) the quality/strategic value of a
 Region's  referrals.   Concerns relative to issues of quality or
"strategic value will be raised informally as soon as they are
 identified.

      (10) Headquarters oversight will be accomplished primarily
 through  annual  program and OGC/OECM reviews, or ad hoc reviews
 as problems are identified in a given Region.

 Note t   Where a  referral also transmits a signed consent  decree
        for Headquarters approval, the procedures applicable to
        processing settlements shall apply in lieu of these
        procedures.

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  CASES WHICH WILL CONTINUE TO BE REFERRED THROUGH HEADQUARTERS


ALL MEDIA;     Parallel Proceedings —  Federal  civil  enforcement
               matters where a criminal investigation  of the same
               violations is pending


RCRA/CERCLA;   UST enforcement

               Enforcement  of   RCRA  land  ban  and  minimum
               technology regulations

               Enforcement  of administrative orders  for  access
               and  penalty  cases  for failure  to  comply  with
               requests for access (Section 104)

               Referrals  to  enforce  Title  III  of* SARA,  the
               Community Right-to-Know provisions


TSCA/FIFRA;    Referrals  to compel compliance  with  or  restrain
               violations  of  suspension  orders  under   FIFRA
               Section 6(c)

               FIFRA  actions  for stop  sales,  use, removal,  and
               seizure under Section 13

               Referrals  to  enforce  Title  III  of   SARA,  the
               Community Right-to-Know provisions

               Injunctive  actions  under  Section   7   of   TSCA
               (actions  for  injunctive relief  to  enforce  the
               regulations  promulgated  under   Section  17   or
               Section 6 could be directly referred)


WATER:          Clean Water  Act pretreatment violations  —failure
               of  a   POTW  to   implement  an   approved   local
               pretreatment program

               Clean Water  Act permit violations relating  to  or
               determined  by  biological  methods  or  techniques
               measuring whole effluent toxicity

               PWSS  cases  to  enforce  against   violations   of
               administrative  orders which were not issued  using
               an adjudicatory hearing process

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WATER
 (contd.1        Cases  brought   under  the  Marine  Protection,
                Research  and Sanctuaries Act (MPRSA)

                UIC cases1


AIR;            Smelter cases
     1  The  ten   cases  referred  to  date  indicate  that  the
regulations  raise  interpretive  issues of  continuing  national
significance.    There  also  appears  to be  a  need  for  greater
experience at  gathering the facts necessary to prove violations
and support appropriate relief.  For this reason, the first 3 UIC
cases  from  each  Region shall be  referred  through Headquarters.
Once the  Associate Enforcement Counsel for OECM determines that
the Region has completed three successful  referrals,  the Regio-
may proceed to refer these cases directly to DOJ.

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        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. OC *•«•«
                       KV28 G63
                                                 •MVOMCCMKITT CC
MEMORANLOM

SUBJECT: Implementation of Direct Referrals for Civil Casi
          Beginning December 1« 1963
FROM:    Courtney M.
         Assistant Administrator foe Enforcement
          and Compliance Monitoring

TO:      Regional Administrators, Region* I - X
         Regional Counsels, Regions I - J.
         Associate Enforcement Counsels
         OECM Office Directors
I,  BACKGROUND

     On September 29. 1983, the Environmental Protection
Agency (EPA) and the Land and Natural Resources Division of
the Department of Justice (DOJ) entered Into an agreement
vhich, beginning on December 1, 19B3, allows certain
categories of cases to be referred directly to DOJ fron EPA
Regional offices without ny prior concurrence.  A copy of
that agreement is attached to this memorandum.

     This memorandum provides guidance to EPA Headquarters
and Regional personnel regarding procedures to follow in
implementing this direct referral agreement.  Additional
guidance will be issued as required.

II. PROCEDURES FOR CASES SUBJECT TO DIRECT REFERRAL

     The attached agreement lists those categories of
cases which can be referred directly by the Regional
Administrator to DOJ.  All other cases must continue to b«
reviewed by Headquarters OECM and will be referred by me to
DOJ.  Cases which contain counts which could be directly
referred and counts which require Headquarters concurrence
should be referred to EPA Headquarters.  If you are uncertain
whether a particular case may be directly referred, you
should contact the appropriate Associate Enforcement Counsel
for guidance.

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                            -2-

     Many of the procedures for direct referral  cases are
adequately explained in the September 29th agreement*
However, there are a one point* I vast to emphasize*

     Referral packages should be addressed to Mr. F. Henry
Habicht, II, Assistant Attorney General, Land and Natural
Resources Division, U.S. Department of Justice,  Washington.
D.C. 20530, Attention: Stephen D. Ramsey.  The time  limitations
set forth in the agreement for review and initial disposition
of the package will commence upon receipt of the package in
the Land and Natural Resource* Division, and not -at  the DOJ
nail room.  Delivery of referral packages to the  Land and
Natural Resources Division will be expedited by  use  of
express nail, which Is not commingled with regular nail in
DOJ's nailroom.

     The contents of a referral package (either  direct  Co
DOJ or to EPA Headquarters) should contain three primary
divisions: (1) a cover letter; (2) the litigation report;
(3) the documentary file supporting the litigation report.

     The cover letter should contain a summary of the following
elements:

     (a) identification of the proposed defendant(s);

     (b) the statutes and regulations which are  the  basis
         for the proposed action against the defendaat(s);

     (c) a brief statement of the facts upon -which the
         proposed action is based;

     (d) proposed relief to be sought against the defendant(s) ;

     (e) significant or precedential legal or factual  issues;

     (f) contacts with the defendant(s), including any
         previous administrative enforcement actions taken;

     (g) lead Regional legal and technical personnel;

     (h) any other aspect of the case which is significant and
         should be highlighted, including any extraordinary
         resource demands which the case nay require.

     A referral to DOJ or to Headquarters EPA is tantamount
to a certification by the Region that it believes  the case
is sufficiently developed for the filing of a complaint,
and that the Region is ready, willing and able to  provide
such legal and technical support as might be reasonably
required to pursue the case through litigation.

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     As provided in the September 29,  1983.  agreement.
Information copies of the referral package may be provided
to the U.S. Attorney for the appropriate Judicial district
in which the proposed case nay be filed.  These  information
packages should be clearly labelled or stamped with  the
following words: "Advance Copy — No Action  Required At
This Time*1.  Also, information copies should be  simultaneously
provided to the appropriate OECM division at Headquarters.
It is important that the directly referred cases be  tracked
in our case docket system and Headquarters oversight initiated,
Copies of the referral cover letter will be  provided to
OECM's Office of Management Operations for inclusion in the
automated case docket system when Headquarters  informational
copy is received at OECM's Correspondence Control Unit.

Department of Justice Responsibilities

     DOJ shares our desire to handle these cases as  expedi-
tlously as possible.  To that end, DOJ has agreed that,
within thirty days of receipt of the package in  the  Land  and
Natural Resources Division at DOJ Headquarters,  it will
determine whether Headquarters DOJ or the U.S. Attorney
vill have the lead litigation responsibilities on a  specific
case.  DOJ vill notify the Regional offices  directly of  its
determination in this regard, with a copy to the appropriate
OECM division.  Although USA offices will have  lead  respon-
sibilities in many cases, the Land and Natural Resources
Division will continue to have oversight and management
responsibility for all cases.  All complaints and  consent
decrees will continue to require the approval of the
Assistant Attorney General for the division  before  the case
can be filed or settled.

     DOJ has reaffirmed the time frame of the Memorandum
of Understanding, dated June 15, 1977, for the  filing of
cases within 60 days after receipt of the referral  package,
where possible.  Where it Is not possible, DOJ will  advise
the Region and Headquarters of any reasons for  delays In
filing of the case.  However, when DOJ determines  that
the USA should have the lead responsibilities in a case,  DOJ
will forward the case to the USA within thirty  days  of
referral to the extent feasible.

     DOJ can request additional information from a Region
on a case or return a case to a Region for further develop-
ment.  In order to avoid these delays, referral  packages
should be as complete as possible and the Regions  should
work closely with DOJ to develop referral packages.

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     The Deputy Administrator has expressed  concern  in the
past on the number of cases returned to the  Regions or
declined by EPA or DOJ.  1 have assured the  Deputy Administrator
that I will closely track the number of cases declined by
DOJ or returned to the Regions and the reasons  for the
declination or return as indications of whether direct
referrals are a feasible method of handling  EPA's Judicial
enforcement program.

Headquarters OECM Responsibilities

     Although OECM will not formally concur  on  cases directly
referred to DOJ. OECM vill still review these packages and
may offer comments to the Regions and DOJ.   DOJ is free  to
request EPA Headquarters assistance on cases, as DOJ
believes necessary.  EPA Headquarters review will help to
point out potential issues and pinpoint areas where  future
guidance should be developed.  OECM vill also be available
as a consultant to both DOJ and the Regions  on  these cases.
OECM vill be available to address policy issues as they
arise and, as resources permit, nay be able  to  assist in
case development or negotiation of these cases. Any request
from a Regional office for Headquarters legal assistance
should be in writing from the Regional Administrator to
me, setting forth the reasons for the request and  the type
of assistance needed.

     OECM also maintains an oversight responsibility for
these cases.  Therefore, Regional attorneys  must report
the status of these cases on a regular basis through use
of the automated case docket.  All information  for the case
required by the case docket system oust appear  in  the
docket and be updated in accordance vith current guidance
concerning the automated docket aystea.

Settlements in Cases Subject to Direct Referral

     I vill continue to approve and execute all settlements
in enforcement cases, including those in cases  subject to
direct referral and amendments to consent decrees in these
cases.  This is necessary to ensure that Agency policies and
enforcement activities are being uniformly and  consistently
applied nationwide.  After the defendants have signed the
settlement, the Regional Administrator should forward a
copy of the settlement to we (or my designee)  with a written
analysis of the settlement and a request that the settlement
be signed and referred for approval by the Assistant Attorney
General for the Land and Natural Resources Division and  for
entry.  The settlement will be reviewed by the appropriate
OECM Enforcement Division for consistency with law and
Agency policy.

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                            -5-

     Vithin twenty-one days from the date of receipt of the
settlement by the appropriate OECM division. I vill either
sign the settlement and transmit it to DOJ with a request
that the settlement be entered,  or transmit a memorandum to
the Regional Office explaining factors which Justify post-
ponement of referral of the package to DOJ. or return the
package to the Region for changes necessary before the
agreement can be signed.

     Obviously, we want to avoid the necessity of
communicating changes In Agency  settlement positions to
defendants, especially after they have signed a negotiated
agreement.  To avoid this, the Regional  office should
coordinate with Headquarters OECM and DOJ in development of
settlement proposals.  A copy of all draft settlement
agreements should be transmitted by the  Regional Counsel to
the appropriate Associate Enforcement Counsel for review
before it is presented to the defendant. The Associate.
Enforcement Counsel vill coordinate review of the settlement
with the Headquarters program office and respond to the
Regional office, generally, within ten days of receipt of
the draft.  The Regional office  should remain in contact
with the Headquarters liaison staff attorney as negotiations
progress.  Failure to coordinate settlement development
with appropriate Headquarters offices may result In rejection
of a proposed settlement which has been  approved by the
defendant(s) and the Regional office.

     I will also continue to concur In end forward to DOJ
all requests for withdrawal of cases after referral.  In
addition. I will review and concur in any delay  in the filing
or prosecution of a case after referral. This is appropriate
because cases which are referred to DOJ  should be expeditiously
litigated to conclusion, unless  a settlement or some other
extraordinary event justifies suspending court proceedings.
The review of reasons for withdrawal or  delay of cases
after expenditure of Agency and  DOJ resources  is an  important
function of OECM oversight.  Therefore,  should the Regional
offices desire to request withdrawal or  delay of a case
which has been referred to DOJ,  a memorandum setting forth
the reasons for such a request should be forwarded to  the
appropriate OECM division, where it vill be reviewed and
appropriate action recommended to ae.

III.  CASES HOT SUBJECT TO DIRECT REFERRAL

     Those cases not subject to  direct referral will be
forwarded by the Regional Administrator  to the Office
of Enforcement and Compliance Monitoring for review prior
to referral to DOJ.  OECM has committed  to a twenty-one day
turn-around time for these cases.  The twenty-one day
review period starts when the referral  is received by  the
appropriate OECM division.

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     Within this  twenty-one day period, OECM will decide
whether  to refer  the  case to DOJ (OECM then has fourteen
additional days to formally refer the case), to return the
case to  the Region for further development, or to request
additional information from the Region.

     Because of this  rfhort OECM review period, emphasis
should be placed  on d-ev-eloping complete referral packages
so that  delay occassioned by requests for additional infor-
mation from the Region will be rare.  OECM may refer a case
to DOJ which lacks some  information only if the referral
can be supplemented with a minimum ot time and effort by
information available to the Regional office which can
immediately be gathered and transmitted to DOJ.  However,
this practice is  discouraged.  In the few instances in
which a  case is referred to DOJ without all information
attached, the information should, at a minimum, be centrally
organized in the  Regional office and the litigation repprt
should analyze the completeness and substantive content  of
the information.

     A referral will  be returned to the Region, with an
explanatory memorandum, if substantial information or
further  development is needed to complete the package.
Therefore, the Regions should work closely with OECM
attorneys to be -certain referral packages contain all
necessary information.

IV.  MEASURING THE EFFICACY OF THE DIRECT REFERRAL AGREEMENT

     I will use EPA's case docket system, OECM's quarterly
Management Accountability reports and DOJ's responses to
the referral packages to review the success of the direct
referral agreement.   OECM will review the quality of the
litigation reports accompanying directly referred cases  and
discuss  the general quality of referrals from each Regional
office at case status meetings held periodically with DOJ'a
Environmental Enforcement Section.

     If  you have  any  questions concerning the procedures
set out  in this memorandum, please contact Richard Kays,
Senior Enforcement Counsel, at FTS 382-4137*


Attachment

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         UNITED STATES CK«flRD?4MEKTAi. FROTECTIOI* A5EWCY
                                                             f* T»il
                                                         ^^   ^v
Honorable F. Henry Babicbt* XX                         c "•*" q"
Acting Assistant Attorney General                      T ":~" *tr.
Land and natural Resources Division                   1." "
U.S. Department of Justice                            r~
Washington, D.C.  20530
                                                      • -     *"
Dear Banks                                             : ^.T  =£
                                                             CLT
     As • result of our Meeting on Thursday, September B,* 19BS-*
and the subsequent discussions of respective staffs* we are in
agreement that, subject to the conditions set forth below,  the
classes of cases listed herein will be referred'directly fro*
EPA*s Regional Offices to the Land and Natural Resources Division
of the Department of Justice in Washington, D.C*

     The terns, conditions and procedures to be followed in
implementing this agreement ares

1.   The Assistant Administrator for Enforcement and Compliance
     Monitoring will waive for a period of one year the requirement
     of the Assistant Administrator's prior concurrence for referral
     to the Department of Justice for the following classes of
     judicial enforcement casess
     (a)  Cases under Section 1414(b) of the Safe Drinking Vat<
          Act which Involve violations of the National Interim
          Primary Drinking Water Regulations, such as reporting or
          joonitoring violations, or maximum contaminant violations;

     (b)  The following cases under the Clean Water Acts

          (i)    cases involving discharges without a permit
                 by industrial dischargersi

          lii)   all cases against minor industrial dischargers!

          liii)  cases Involving failure to monitor or report fcy
                 industrial dischargers}

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           fiv)   referrals to collect stipulated penalties fr
                 industrials under consent decrees;

           |v)    xafarrals to collect administrative spill penalties
                 under Section 311 (J) of the
     (c)  All cases tinder the Clean Air Act except the following!

          (i)    cases Involving the steel industry}

          (ii)   cases involving non-ferrous smelters;

          (iii)  cases involving national Emissions Standards for
                 Hazardous Air Pollutants f

          Civ)   cases involving the post-1982 enforcement policy.

2*   Cases described in Section 1, above, shall be referred
     directly from the Regional Administrator to the  land and
     Natural Resources Division of DOJ in the following aunners

     (a)  The referral package shall be forwarded to  the  Assistant
          Attorney General for Land and Natural Resources, O.S.
          Department of Justice (DOJ), with copies of the package
          being simultaneously forwarded to the D.S.  Attorney
          (USA) for the appropriate judicial district in  which
          the proposed case is to be filed (marked "advance  copy-
          no action required at this time*), and the  Assistant
          Administrator for Enforcement and Compliance Monitoring
          (OECH) at EPA Headquarters.  OECH shall have the following
          functions with regard to said referral packages

          (i)    OECH shall have no responsibility for review of
                 such referral packages* and the referral shall  be
                 effective as of the date of receipt  of the  package
                 by DOJ i however v OECH shall comment  to the  Region
                 upon any apparent shortcomings or defects which
                 it siay observe in the package.  DOJ  Bay, of course,
                 continue to consult with OECH on such referrals.
                 Otherwise, OECH shall be responsible only for
                 routine oversight of the progress and management
                 of the case consistent with applicable present
                 and future guidance.  OECH shall, however,  retain
                 final authority to approve settlements on behalf
                 of CPA for these cases, as in other  cases.

          (ii)   The referral package shall be in the format and
                 contain information provided by guidance memoranda
                 as a\ay be promulgated from time to time  by  OECH in
                 consultation with DOJ and Regional representative

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           fill)  DOJ Shall, within 30 days from receipt of the
                 referral package, determine (1) whether  the Lands
                 Division of TJOJ will have lead responsibility for
                 the case? or 12) whether the OSA will fcave laad
                 responsibility for the case.

                 While it is agreed that to the extent feasible,
                 caves in which the OSA wilJ have the lead will be
                 transmitted to the OSA for filing and handling
                 within this 30-day period, if DOJ determines  that
                 the case requires additional legal or factual
                 development «t DOJ prior to referring the matter
                 to the OSA, the case may be returned to  the
                 Regional Office, or may be retained at the Lands
                 Division of DOJ for further development, including
                 requesting additional information from the Regional
                 Office.  In any event, DOJ will notify, the Regional
                 Office. OECM and the DBA of its determination of
                 the lead role within the above-mentioned 30-day
                 period.

           (iv)   Regardless of whether DOJ or the OSA is  determined
                 to have lead responsibility for management of
                 the case, the procedures and time limitations set
                 forth in the MOU and 26 CFR $0.65 et seg., shall
                 remain in effect and shall run concurrently with
                 the management determinations made pursuant to
                 this agreement*

3.   (a)  All other cases not specifically described in paragraph
          1, above, which the Regional Offices propose for  judicial
          enforcement* shall first be forwarded to OECK and the
          appropriate Headquarters program office for review.
          A copy of the referral package shall be forwarded simul-
          taneously by the Regional Office to the Lands Division  of
          DOJ and to the OSA for the appropriate judicial district*
          the DSA's copy being marked "advance copy-no action  required
          at this time.*

     (b)  OECM shall review the referral package within twenty-one
          (21) calendar days of the date of receipt of said package
          from the Regional Administrator and shall* -within said
          time period, make a determination of whether the  case
          should be (a) formally referred to DOJ, (b) returned to
          the Regional Administrator for any additional development
          which »ay be required} or (c) whether the Regional
          Administrator should be requested to provide any additional
          material or information which may be required to satisfy
          the necessary and essential legal and factual requirements
          for that type of case..

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      (c)  Any request for information* or return of the  case
           to the  Region shall be transmitted by appropriate lettet
           or memorandum signed by the AA for OECM (or her designee)
           within  the  aforementioned twenty-one day period.  Should
           OECM concur In the proposed referral of the case to DOJ*
           the actual  referral shall be by letter from the AA  for
           OECM (or tier designee) signed within fourteen  days  of
           the termination of the aforementioned twenty-one day
           review  period.  Copies of the letters referred to herein
           shall b« sent to the Assistant Attorney General for the
           Lands Division of XO9«

      (d)  upon receipt of the referral package by DOJ* the
           procedures  and time deadlines set forth in paragraph
           Mo.  8 of the MOU shall
     In order to allow sufficient tine prior to implementation of
this agreement to nuke the U.S. Attorneys* the Regional Offices
and our staffs aware of these provisions, it is agreed that this
agreement shall become effective December 1, 1963*  Courtney Price
will distribute a memorandum within CPA explaining this agreement
and how it will be implemented within the Agency.  (You will recei
• copy.)

     2 believe that this agreement will eliminate the necessity of
formally amending the Memorandum of Understanding between our
respective agencies, and will provide necessary experience to
ascertain whether these procedures will result in significant
savings of time and resources.  In that regard, I have asked
Courtney to establish criteria for measuring the efficacy of this
agreement during the one year trial period, and 2 ask that you
cooperate with her in providing such reasonable and necessary
information as she nay request of you in making that determination
At the end of the trial period—or at any time in the interval—
we nay propose such adjustments in the procedures set forth herein
as nay be appropriate based on experience of all parties.

     It is further understood that it is the mutual desire of the
Agency and DOJ that eases be referred to the USA for filing as
expeditioucly as possible*'

     X appreciate your cooperation in arriving at this agreement.
If this meets with your approval, please sign the enclosed copy
in the space indicated below and return the copy to me for our
files.
                                    Sincerely yours.
                                    Alvin I. Arm
                                    Deputy Administrator

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      3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     y               WASHINGTON. D.C. 20460
N pao-t0


                          FFB  8
    MEMORANDUM

    SUBJECT:   Responsibilities for Assuring Effective Civil
              Judicial Enforcement

    FROM:      Thomas L.  Adams, Jr. —  jjvfs^ca^-^-^ Vx •
              Assistant Administrator

    TO:        Regional Administrators
              Regions I-X.

         On December 24, 1987, I signed a letter to Roger
    Marzulla,  Acting Assistant Attorney General, Department of
    Justice,  detailing our proposed expansion of the direct
    referral  program for civil judicial enforcement actions.  On
    January 5, 1988, Mr. Marzulla concurred in the proposal and
    it is now in effect.  This represents a significant milestone
    in the maturation and decentralization of the Agency's
    enforcement program.

         The  expanded direct referral program, important as it
    is,.should be viewed as only one element in a major effort to
    define more sharply the roles and responsibilities, of Agency
    offices in the enforcement process.  With this clearer
    identification of responsibilities, and an equally important
    emphasis  on improved communication and coordination, we
    should be well positioned to meet both current and future
    enforcement challenges.

         I would like to summarize in this memorandum the basic
    themes common to the efforts we are making, with your
    assistance, to improve the civil judicial enforcement
    progranr.   These efforts include, in addition to the expansion
    of direct referrals:  establishment of procedures for
    conducting pre-referral negotiations, use of case management
    plans to  enhance litigation and negotiations management, and
    establishment of an Agency Enforcement Management Council.

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                          - 2 -

These initiatives are described in my memorandum to you dated
October 6,  1987, and entitled "Enhancing and Streamlining the
Enforcement Process:  Workgroup Products and Outlines of Future
Work."

     This memorandum, as well as the enforcement initiatives
themselves, reflects the consensus-building process initiated at.
the Easton  enforcement meeting.  We appreciate the constructive
participation  in this process by all of the offices concerned.   I
would especially like to acknowledge the strong role played by
Frank Covington as  lead Deputy Regional Administrator.

     A fundamental  premise of our efforts is that the Regions
have the lead  for the Agency in case selection, consistent with
Agency priorities,  and in case development and case management.
The direct  referral program recognizes the Regions', increased
authority.  This increased authority carries with it, however,  a
concomitant increase in responsibilities.  This includes the
responsibility for  assuring the quality and strategic value of
referrals,  as well  as support of cases once referred.  As noted
in the direct  referral procedures, OECM will not request
referrals to be withdrawn for reasons of quality or strategic
value. While OECM still retains an oversight responsibility for
quality and strategic value, its focus will be on identificatior
of such concerns on a generic basis rather than on a case-
specific basis.  To provide one basis for exercising this
responsibility and  to facilitate early and informal notice to the
Region of potential problems, OECM attorneys will continue to
fill out a  direct referral/strategic value checklist for each
case and OECM will  periodically share its assessment with the
Region.

     The Regions also will take the lead in the critical function
of maintaining the Agency's Enforcement Docket System.  Except in
national lead cases or where this responsibility is undertaken by
a Headquarters attorney and this is so noted in the case
management  plan, Offices of Regional Counsel will be solely
responsible for ensuring that accurate and up-to-date information
on each case is maintained in the System.  OECM attorneys will no
longer make separate docket entries as a matter of course;
instead we will rely on the Regionally-entered case status
information.  OECM  will retain an oversight responsibility to
ensure, to  the extent possible, that accurate information,
consistent  across the Regions, is available from the Docket
System for workload modelling and reporting of enforcement
activities  at a national level.  Additional guidance on
maintenance of the  docket will be provided in the near future.

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     A second major principle guiding our recent initiatives
is that Headquarters (OECM and the program offices) will continue
to be involved fully in identification and resolution of
significant legal or policy issues.  Headquarters review of
referrals, pleadings and settlements win focus primarily on sir:::
issues.   If a legal or policy issue arises which impacts upon -he
viability of the referral, the procedures outlined in the direct
referral letter will be followed.   If, during Headquarters'
review,  issues surface which do not affect the viability of a
referral but which may nevertheless have an important bearing on
the handling of the case, OECM attorneys and program office star:
will raise and discuss such issues with their Regional
counterparts and, where appropriate, with DOJ as well.  The
Region should have a process in place to assure that significant
legal and policy issues are identified and raised to Headquarters
for resolution as early as possible.  OECM approval is still
required for civil judicial settlements in accordance with Agency
delegations.

     A third major principle, reflected in both the direct
referral program and in the pre-referral negotiation process, is
that early and frequent communications, whether on legal or
policy issues or on negotiating positions, helps to avoid delay
and disruption later on.  While the level of communication will
necessarily vary depending on Headquarters' degree of involvement
with the case, increased decentralization puts a premium on
sharing information on a timely basis.

     A fourth principle is that we need to manage our enforcement
efforts to make the fullest use of our limited legal and
technical resources.  The case management plan provides an
important tool to accomplish this.  We will issue joint guidance
with the Department of Justice on case management plans in the
near future.  The case management plan, whose development is
initiated by the Regional Counsel's Office, will define the roles
and responsibilities of members of the litigation team and
support staff.  The nature of the OECM attorney's role, along
with the roles of his or heir program, Regional, DOJ, and
Assistant U.S. Attorney counterparts, will be worked out in the
preparation of the plan.

      The role of OECM  and the program office in any given case
will be largely dependent on the national significance of the
case and the issues presented.  For many routine cases, after
initial review of the referral, Headquarters' involvement will be
limited to approving settlements and addressing significant
issues which arise during negotiations or litigation.  With
increased decentralization, Headquarters must naturally be more
selective in the cases in which it is actively involved and in
the nature of its involvement in those cases, focusing primarily
on cross-cutting or other national issues which warrant
Headquarters resolution or coordination.  Although the bulk of

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                          - 4 -

case-specific responsibilities  in litigation and negotiations.
for the Agency at  least, will generally be borne by Regional
staff, flexibility  remains to involve Headquarters personnel
where appropriate.  The goal is the most effective use or die
available resources in each case, taking into account differ in-::
abilities, experience levels, and institutional interests.

     A final principle is that we must think and function as
mutually-supportive members of the enforcement team.  Whether in
the context of managing an individual case through the litigation
team, or the Agency's overall enforcement program through the
Enforcement Management Council, we must work together with a
strong spirit of collegiality at all levels.

     I am proud of  the efforts we have made together and with the
Department of Justice in streamlining and enhancing the Agency's
civil judicial enforcement process.  I look forward to working
with you to assure  their effective implementation.

cc:  Lee M. Thomas
     A. James Barnes
     Associate Administrator for Regional Operations
     Assistant Administrators
     Headquarters  Program Office Enforcement Directors
     Deputy Regional Administrators, Regions I-X
     Regional Counsels, Regions I-X

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
.•f

                           JAN  I 4 1988
                                                     OFFICE OF ENFORCEMENT
                                                       AND COMPLIANCE
                                                        MONITORING
MEMORANDUM

SUBJECT:  Delegation of Concurrence  and  Signature Authority

FROM:     Thomas L. Adams, Jr.     Vi
          Assistant Administrator"—^**'^*'

TO:       Associate Enforcement  Counsels
          Regional Counsels

     As part of our continuing effort  to streamline the
enforcement process, OECM has been seeking ways  to move cases
quickly through our office while maintaining the ability to
identify and participate in decisions  involving  significant legal
and policy issues.  In order to  streamline our internal review
process, I hereby redelegate the following concurrence and
signature authorities to the appropriate Associate Enforcement
Counsels:

Redelegated Authorities

1)  Concurrence authority for all categories of  CERCLA referrals
     except:

     a)   actions to enforce administrative  orders for
          access under CERCLA Section  104

     b)   actions for failure to comply  with requests for
          access under CERCLA Section  104

     c)   actions to enforce Title III of SARA,  the
          Community Right-to-Know provisions

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 2)   Direct Referrals

      a)    Concurrence authority for all  direct
           referrals shall be redelegated to  the
           appropriate Associate Enforcement  Counsels.

      b)    The authority to recommend withdrawal of a
           direct referral shall reside with  the
           Assistant Administrator for OECM,  after
           consultation with the appropriate
           Headquarters program office.

 3)   Signature of Consent Decrees

      a)    Signature authority for consent decrees shall
           be  redelegated to the Associate Enforcement
           Counsels,  with concurrence by  the  appropriate
           Headquarters program office as required
           by  current delegations,  for the following
           categories of cases:

           (1)   actions seeking only the  collection of
           penalties based on previously  assessed
           administrative orders;

           (2)   actions for access  to property;

           (3)   information collection actions;

           (4)   proofs of claim in  bankruptcy actions.

     b)    Signature authority for  all other  consent
           decrees  shall continue to reside with the
           Assistant Administrator  for OECM,  with
           concurrence by the appropriate Headquarters
           program  office as required by  current
           delegations.


Procedures

     Although the  AEC's will have  primary responsibility for
these redelegated  items,  it is  important that the Assistant
Administrator and  Deputy Assistant Administrators be kept
informed of all  major legal or  policy issues and important trends
in Regional enforcement efforts.   Thus,  in connection with these
redelegations,  the following procedures  should be followed:

1)  Each Division's  weekly highlights will include a brief
     summary  of  each direct referral  received during the previous
     week.

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2)  For each direct referral with which the AEC concurs, copies
     of the concurrence memorandum, checklist, and any other
     document sent to the Region in connection with the direct
     referral will be circulated to the Assistant Administrator
     for OECM.  A copy of the concurrence memorandum should also
     be sent to the Assistant Attorney General for Land and
     Natural Resources.

3)  Where a recommendation to withdraw the referral is deemed
     appropriate, the AEC will prepare the following materials:

          a)   a memorandum from the AEC to the
               Assistant Administrator for OECM
               containing a detailed discussion of the
               reason for requesting that the case be
               withdrawn; and

          b)   a memorandum from the Assistant
               Administrator for OECM to the Regional
               Administrator which outlines the basis
               for requesting that the case be
               withdrawn.  After signature by the
               Assistant Administrator, a copy of this
               memorandum should be sent to the
               Assistant Attorney General for Land and
               Natural Resources.


     These redelegations shall become effective immediately.

cc:  Deputy Administrator
     Deputy Regional Administrators
     Deputy Assistant Administrators for OECM
     Headquarters Program Office Enforcement Directors
     OECM Attorneys and Supervisors

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                          NOV I 6 1990

                                                    OFFCE OF BFOACEMENT
SUBJECT:  "Hold Action"
FROM:     Janes M. S1
          Assistant Administrator

TO:       Regional Counsels


     At the Regional Counsels meeting in Seattle, we discussed
the problem of cases whose filing was being delayed by informal
staff-level "hold action" requests.   To deal with this problem,
and strengthen our management of this process, Ed Reich sent to
you on August 27 a draft of  the new procedures for such requests,
Based on your positive comments,  and the support of the
Department of Justice  (see attached), I am adopting these
procedures effective immediately.

     Please assure that all  Regional Counsel Staff are aware of,
and comply with, these procedures.

Attachment

cc:  Edward E. Reich
     Scott Fulton
     Associate Enforcement Counsels
                                                            Prinud on Rtcycltd Paptr

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              Procedures for "Hold Action" Requests
1.   "Hold action" requests (requests to delay filing of a
     complaint)  are generally disfavored.  When EPA
     refers a case to the Department of Justice, it should
     be with the intent to get it filed as quickly as
     possible, and the case should be fully prepared for
     filing.  The Department seeks to file a complaint
     within 60 days of receipt of a referral.

2.   Use of prereferral negotiation procedures in cases
     where pre-filing negotiations are desired should reduce
     the need for "hold action" requests.

3.   The following procedures are adopted to better manage
     the "hold action" request process.

     A.   Authority to request a hold on a referred
          civil  case for up to sixty days is hereby
          delegated to the Regional Counsels.  This
          authority is non-delegable, but may be
          exercised by an Acting Regional Counsel.
          This delegated authority is limited to
          circumstances in which additional time is
          needed either:  (1)  to pursue pre-filing
          settlement negotiations (where settlement
          is viable); (2)  to allow for the addition
          of other counts or defendants or (3)  where
          litigation practicalities, recognized by
          both the Regions and DOJ, militate in
          favor of a brief filing delay.  The Regional
          Counsel can request more than one short hold
          if necessary but the cumulative time of all
          such holds for any case is strictly limited
          to sixty days.

     B.   Any hold beyond 60 days, individually or
          cumulatively, can be requested only by the
          AA for Enforcement.   The Regional Counsel
          would initiate this request, where
          appropriate, by preparing a letter to the
          Assistant Attorney General, Environment and
          Natural Resources Division for the signature
          of the Assistant Administrator for
          Enforcement and sending this letter and an
          appropriate transmittal memorandum to the AA.

-------
                         - 2 -
C.   All hold requests issued by the Regional
     Counsel nust be in the form of a letter from
     the Regional Counsel to the appropriate
     Section Chief at the Department of Justice,
     with a copy to the appropriate AEC in OE.
     Hold letters from the AA will similarly be
     copied to the Regional Counsel.

D.   If the Associate Enforcement Counsel has
     strong objections to the hold, he or she will
     advise the appropriate Assistant Chief in the
     Environment and Natural Resources Division
     and will contact the Regional Counsel to
     attempt to resolve the issue.  This will be
     done only for cases with serious national
     implications.

E.   The Department of Justice will treat as
     having a "hold action1* request only those
     cases for which a formal written request from
     the AA or RC has been received.  The DOJ 60-
     day report will show as being held at EPA's
     request only those cases, and will
     specifically cite by date and title the
     requesting memorandum in its case summary.

F.   Cases subject to a "hold action" request will
     remain on the active DOJ docket of unfiled
     cases until they are filed, returned to the
     Region by written memorandum, or withdrawn by
     EPA.

6.   Cases for which immediate filing is not
     appropriate, and for which there is no outstanding
     "hold action" request in accordance with these
     procedures, will be returned by DOJ to the
     Regional Counsel for further Agency processing.

H.   The Director, Office of Civil Enforcement,
     will monitor the overall use by each Region
     of "hold action" requests to assure that the
     practice is not abused.

-------
                                  U. S. Department of Justice
                                  Washington, DC 20530

                                 November 8, 1990
Honorable Edward E. Reich
Deputy Assistant Administrator
Office of Enforcement
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C.  20460

Dear Ed:

          Thank you for providing us with an opportunity to
comment on the draft revision to the procedures by which the
Environmental Protection Agency will ask the Department of
Justice to "hold* a pending civil environmental enforcement
referral prior to filing.

          We have reviewed the outline attached to your letter of
September 13, 1990, and generally concur with the revised "hold''
procedures.  However, we believe that the outline needs to
address a situation which has arisen on many occasions in the
past.  Although the new procedures indicate that the authority to
request a hold is "non-delegable," we expect that EPA regional
staff attorneys will continue to ask us to delay filing.  This
happens now often because the regional staff have started to
negotiate with prospective defendants and have made certain
representations about delayed filings to those parties without
getting DOJ and/or EPA Regional Counsel concurrence.  Under these
circumstances we now must decide whether to return the referral
for further agency processing or to retain it on the "60-Day
list* with an appropriate notation.  We believe the outline
should specifically address this kind of situation by indicating
that cases will be returned to the Region unless the 'hold*
procedures are strictly adhered to.

-------
                              - 2' -

          Zn addition, we suggest that paragraph D of the Outline
be revised as follows:

               D.   If the Associate Enforcement Counsel has
                    strong objections to the hold, he or she will
                    advise the appropriate Assistant Chief in the
                    Environment and Natural Resources Division
                    and will contact the Regional Counsel to
                    attempt to resolve the issue.  This will be
                    done only for cases with serious national
                    implications.

          I would be happy to discuss the concerns outlined above
in greater detail prior to the next Stevart/Strock meeting.  I
appreciate the opportunity to review and comment on this new
process.
                              Sincerely,
                              Richard B. Stewart
                              Assistant Attorney General
                              Environment and Natural Resources
                                Division
                              Robert Van Heuvelen
                              Acting Chief
                              Environmental Enforcement Section

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON. O.C. 20460
 ' =oe<*
                             DEC 2 I 1987
                                                  SOLID WASTE A.NO
 MEMORANDUM

 SUBJECT:  Revised Enforcement Response Policy
             c^-^-K.   j -^-5^^
    FROM:  J.  Winston Porter
           Assistant Administrator

      TO:  Regional Administrators
           Regions I-X


      I am attaching the final revised RCRA Enforcement Response
 Policy for your implementation.   The policy updates guidance on
 classifying violations, selecting the appropriate enforcement
 action in response to various RCRA violators, and taking Federal
 enforcement action in States with authorized programs.

      The first Enforcement Response Policy (ERP) was signed by
 the previous  Assistant Administrator, Lee Thomas, almost three
 years ago.  Since that time the Policy has helped the program in
 making strides toward obtaining compliance with RCRA standards.
 The regulated community and~"the nature oc~piuijram emphasis have
 changed during this time.   We have learned a great deal about
 the complexities of overseeing authorized State implementation
 of this program, and the problems those States have in meeting
 Federal guidelines while working under the States' own laws which
 often differ  substantially from Federal laws.

      The revised ERP continues to stress the same principles
.as its predecessor, that is, the importance of concentrating
^enforcement efforts on the most serious'violators and taking
 timely and aggressive enforcement action against these violators.
 Experience has taught us that the category designated to receive
 the most stringent response should be better defined, so as to
 emphasise the importance of addressing those facilities which
 pose the greatest threat to human health and the environment,
 or which show disregard for the regulatory program.  The revised
 policy does this.  Another key change is the broadening of
 acceptable "appropriate" responses to High Priority Violators
 to include a  variety of "economic sanctions".

-------
               United Sutt*
               Environmental Protection
            Solid Wi»t« «n«
     &EPA
DIRECTIVE NUMBER: 9900.0-1A
TITLE: Enforcement Response Policy

APPROVAL DATE:
EFFECTIVE DATE: October 1, 1988
ORIGINATING OFFICE: OMPE
g FINAL
G DRAFT
 STATUS:
               REFERENCE (othtr documents):  yes
                Eiiforcement Response Policy OSWR Directive #9900.0
                December 21, 1984  Supersede
                National Quality Criteria OSCR Directive I 9545.00-1
 OSWER      OSWER      OSWER
'E    DIRECTIVE   DIRECTIVE    L

-------
                                    990C.C-1A
ENFORCEMENT RESPONSE POLICY



       December, 1987

-------
                                                       9900.C-1A


 I.   INTRODUCTION

      In  December of 1984, the Office of SoLid v;aste ^nd Emergency
 Response  issued the first RCRA Enforcement Response Policy  (ER?)'.
 The  ERP  strengthened the RCRA enforcement program by establishing
 a scheme  for classifying RCRA violations and violators, providing
 guidance  on timely and appropriate enforcement response, and
 delineating conditions for EPA enforcement action in authorized
 States.   The policy espoused the concept of quickly escalating
 an action when compliance was not achieved.

      The  policy was intended to establish an approach for
 strengthening the RCRA enforcement program by concentrating
 efforts on the most serious violators.  The State/EPA was required
 to subject High Priority Violators (HPV) to formal enforcement
 action and penalty assessment.

      After almost three years of policy implementation, it  is clear
 that  the  program has made significant strides in enforcing  agains.t
 the more  serious violations, particularly in the areas of ground-
 water monitoring,  closure/post-closure, and financial responsibility.
 This  period of policy implementation has also provided the
 opportunity to evaluate this policy.

      Since the development of the original ERP,  new program
 initiatives have developed as provisions of the 1984 HSWA Amendments
have  become effective.  The December, 1984 ERP placed priority on
 enforcement against interim status land disposal facilities which
were  out  of compliance with ground-water monitoring, closure/post-
 closure or financial responsibility requirements.  HSWA and
overall development of the RCRA program has mandated closer
 scrutiny  of additional segments of the regulated community  and other
 types of  violations.  This expansion of focus requires a broadening
of programmatic emphasis.  For example, corrective action require-
ments and land disposal restrictions direct more attention  to
hazardous waste treater«, storers and generators, as well as to
 land disposal facilities.                           7

     These and other program chaAges will cause a major shift
in the nature of th« compliance monitoring and enforcement  program
over  the  next few years.  The majority of the RCRA land disposal
 facilities are closing as the 1988 permitting deadline approaches.
Many of these, as well as facilities being permitted, will  be
under schedules of compliance to perform corrective action.
Facilities seeking permits will be subject to permit conditions
specifically tailored to operations at each individual facility.
The land  disposal of many wastes will no longer be permitted -
generators will have greater responsibility regarding the dispo-
sition of their wastes.  These and other major changes occurring
 in the RCRA-regulated universe demand new inspection strategies
and the redefinition and expansion of some of our "serious
violation" definitions.

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                                                         99CC.O-1A
                                -3-

 appropriate enforcement responses  to noncompliance.   It. should
 be  read in conjunction with the RCRA Implementation  Plan  (RIP),
 which establishes annual priorities  for  compliance monitoring
 and enforcement actions based  on the Agency's past experience
 in  implementing the program and its  assessment of  future  program
 directions.   The RIP contains  reporting  measures that  focus on
 hazardous  waste handler activities which are of particular
 concern in a given year.   Of these,  the  handlers tracked  most
 carefully  are the Significant  Non-Compliers  (SNC).   The SNCs are
 those types  of handlers whose  violations,  the Agency believes,
 warrant national enforcement program attention.  SNCs will be a
 subset  of  the High Priority Violators (HPV).  [HPVs  are the
 handlers who because of a variety  of considerations,  including
 the nature of their violations,  compliance history,  and other
 factors, are to be addressed most  expeditiously and  most
 aggressively.] Handler categories  designated as SNCs may  change
 from year  to year,  depending on programmatic needs and areas of
 emphasis.   It should be emphasized,  however, that  the  SNC category
 does  not encompass all violators who should be addressed  as
 described  in the Enforcement Response Policy.

      Other basic guidances of  importance to the RCRA Enforcement
 Program are  the Policy Framework for State/Federal Enforcement
 Agreements (revised August,  1986)  and the National Criteria for
 a Quality  Hazardous Waste Management Program Under RCRA  (July,
 1986).   The  Pplicy Framework is an Agency-wide guidance that
 calls for  enforcement agreements between EPA and the States and
 describes  what those agreements should address, including oversigh
 criteria and measures,  information needs,  procedures for  notifi-
 cation  and consultation,  and criteria for direct Federal  enforce-
 ment.   The requirements of the RIP and other RCRA  directives are
 made  applicable to the States  through the State/Federal enforcement
 agreements.   The National Quality  Criteria document  establishes
 basic goals,  objectives and general  performance expectations to
 assure  that  EPA and the States have  a common understanding of
 what  must  be done to effectively implement the RCRA  program.
 The Quality  Criteria document  also outlines how performance is
 to be measured and describes how EPA and the States  should respond
when  criteria are not met.


 III.  APPROPRIATE ENFORCEMENT  RESPONSE CONSIDERATIONS

      The RCRA Enforcement Program  has established  a  system to
 define  enforcement response priorities which support the  Program
 goals.   The  definitions were established to assist the Regions
 and States in directing enforcement  resources against the violators
who pose the greatest threat to human health or the  environment.

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                                                 9900.G-1A

                               -5-

     c) Assure early detection oE such releases; or

     d) Perform emergency clean-up operation or other
        corrective action for releases.

     2. Class II Violation

     Any violation of a RCRA requirement that does not .neet the
criteria listed above for Class I violations.

     Class II violations are defined in the negative, i.e., they
include all violations that are not considered Class I, and
therefore are those violations which do not involve deviations
from requirements which could result in failure to: 1)  assure
that wastes are destined for only authorized TSDFs, 2)  prevent
releases,  3) assure detection or 4) perform corrective action
for such releases.

 B.   Violator Definitions and Enforcement Responses

     A RCRA handler is classified as a violator based upon the
nature of his or her violation(s) along with a number of other
factors (e.g.,  compliance history, previous recalcitrant behavior,
etc.).   The Enforcement Response Policy establishes three categories
of violators - High Priority, Medium Priority, and Low Priority -
and define timely and appropriate enforcement response.

     1. High Priority Violator

     Definition:  A High Priority Violator is a handler who:

   o Has caused actual exposure or a substantial likelihood of
     exposure to hazardous waste or hazardous constituents; or

   o Is a  chronic or recalcitrant violator (This may include
     some  handlers who are regularly found to have many Class I
     or Class II violations.); or

   o Deviates from terms of a permit, order or decree by not
     meeting the requirements in a timely manner and/or by failing
     to perform work as required by terms of permits, orders, or
     decrees; or

   o Substantially deviates from RCRA statutory or regulatory
     requirements.

     High  Priority Violators (HPV) represent the category of
violators  that merit the most stringent and immediate enforcement
response.   These violators should be the highest priorities  for
enforcement action in conjunction with those program priorities
set out annually in the RIP.

     The response timeframes allow 45 days from the day an
inspection is completed to identify or "discover"  the violations

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                                                      9900.0-1A

                               -7-

     While  it  is  acceptable  for 'a State/Region to initially
address a Medium  Priority Violator with an NOV or Warning Letter,
no more than one  WL or MOV should be issued.  if compliance dees
not  result, escalation should immediately follow.

     3.  Low Priority Violators

     Definition:  A handler who has only Class II violations who
is not a Medium or High Priority Violator.

     While  EPA and most authorized States have the authority to
respond to  any Subtitle C violation with an order or referral,  a
Low  Priority Violator will normally receive an NOV or Warning
Letter as the  initial response within 60 days of violation
discovery.  If this response does not result in expeditious
compliance/ normally within  30-60 days of issuance, the Regional
Office or authorized State should consider whether the violation
warrants issuing  an order.   In cases involving large numbers of
Class II violations, repeated Class II violations, or any other
case the enforcement authority considers serious, the handler
should be carefully evaluated to determine whether the handler
meets any of the  High Priority Violator criteria, or may be
better addressed  as a Medium Priority Violator therefore
requiring an enforcement action as described under the
appropriate section.

     Characteristics of High Priority Violators

     The following criteria are set out to assist the agencies
in determining the category of violators that must consistently
receive the highest priority for enforcement.

  a)  A handler who has caused actual exposure, or substantial
     likelihood of exposure to hazardous waste or hazardous
     constituents.

          Handlers that have caused actual exposure or a threat
     of exposure  are always considered High Priority Violators.

          Evaluating when a handler "...caused a substantial Likeli-
     hood of exposure to hazardous waste..." should be done on
     the basis of the case-specific information.   All violations
     at a site should be considered in making this determination.
     Additional factors such as the quantity of waste involved,
     tozicity,  environmental persistence, or other hazard posed
     by the waste, waste management practices, proximity of
     human and environmental receptors (including employees),
     exposure pathways, etc. should be considered.

          In examining whether there is a substantial likelihood
     of exposure  caused by a violator, the focus should be on
     the potential of a situation to cause exposure.  Examples
     of violators who cause a substantial likelihood of exposure
     include,  but are not limited to, handlers that:

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                                                  9900.0-1A

                               -9-

         o   Does  the  faci.li.ty 'nave any violations of the per-.ii,
             order, or decree that may interfere with the facility's
             ability to timely and fully comply with the ter~.s of"
             the document?

         o   Where compliance schedule!? in orders are .nisse-.i HPV
             designation is indicated unless circumstances delaying
             compliance are beyond the facility's control, and
             where the responsible government entity (EPA or the
             State) was promptly notified of the problem and
             agreed to, and documented, the necessary schedule
             changes.

  d)  A handler who substantially deviates from RCRA statutory
      or regulatory "requirements .            ~

      The following should be considered:

         o   Does the facility have any violations listed as
             examples in the Appendix as indicating HPV status?
             These have been determined to be essential to the
             integrity of the RCRA program or to create a potential
             threat to hunan health or the environment.

         o   Does the facility have any serious violations?
             Taken together these may represent a substantial
             deviation from program requireme-its.

     The Enforcement Response For High Priority Violators

     Facilties designated as Significant Mon-Compliers (SNC)
should be the first violators subject to enforcement action in
the Regions  and States,  followed by other High Priority Violators.-
High Priority Violators represent the most serious RCRA violators
and consequently should receive the swiftest and most stringent
enforcement  response available.  Every HPV should be the object
of a formal  enforcement action as well as penalized with an
economic sanction or penalty.  Terms of final agreements will be
documented through an enforceable order or decree.

     The appropriate enforcement response against a High Priority
Violator is one which achieves compliance with RCRA or the
authorized State equivalent,  achieves a final or enforceable
order or remedy within an expeditious timeframe and incorporates
the compliance terms and/or schedule into an enforceable order or
decree.   This response is selected An.i implemented based on
consideration of the following factors:

     1)  Compliance should be achieved as quickly as possible;

     2)  The  violator should be penalized in as short a timeframe
        as possible (see the EPA Penalty Policy for
        considerations for final settlements); and

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                                                     9900.C-1A

                                = 11-


      o  Denial of any pending  or  future permits  to operate ar.y
        facility in the  State,  as  well as  denial or revocation sf
        the  violating facility permit, i.e.  "permit bars";!/

      o  Some other permit  actions;!/

      [Any non-ronetary  economic sanction  nust have a quantifiable
      economic impact at least as  great as the monetary penalty
      which  would have been  sought.   EPA will compare the economic
      impact with the EPA  Penalty  Policy.]

      Enforcement actions  should be publicized to serve notice
on the  regulated community  as well as the general public that
violators are caught and  punished.   A stipulation that the
violator place a public notice in local newspapers admitting
guilt is often an effective addition to a final settlement.
2./ The term  "permit bar" as used  in this document is a statutory
requirement  which authorizes or mandates the automatic and immediate
denial or withholding of a permit  (including a permit amendment,
modification, or renewal) based upon  the present existence of a
violation of any program requirement  at any facility in the State.
The "permit  bar" shall be deemed  an economic sanction only withir
those States which do not require  a prior hearing or "finding"
of violation before the permit bar becomes effective.  Further,
the "permit bar" shall not be deemed  an appropriate economic
sanction unless (1) the permit action, if granted, will provide
a significant economic benefit to  the applicant, and (2) the
right or privilege to operate which would be granted by the
permit will be immediately terminated or operation otherwise
prevented, if the permit is denied or withheld.

•L/ Any State may petition a Region to request that certain types
of permit actions be deemed "appropriate economic sanctions" for
addressing High Priority Violators.   The petition shall demonstrate
to the Region that all objectives, purposes, and results which
can be achieved by an order/civil  penalty action, will be achieved
by use of the proposed permit action.  If the Region, with concurrence
of the Office of Waste Programs Enforcement, finds the proposed
permit action equivalent to or more stringent than an order/civil
penalty action for purposes of this policy, the petition may be
granted.

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                                                 99CO.0-LA

                               -13-


     Th e -Agency recognizes that circumstances may arise where
the enforcement response timeframes specified may be insufficient'
to prepare and initiate the appropriate enforcement responses
specified in this policy.  It is also recognized that instances
may occur where immediate action is appropriate.  The Agency
expects that the Region or the State will take appropriate
enforcement action much more expeditiously than provided for by
the ERP established timeframes in the following cases:

      o  Where a release or other violation poses an immediate
         threat to human health and the environment; or

      o  Where activities of the owner/operator must be
         stopped or redirected, such as cases in which the
         Agency or the State seeks to immediately halt improper
         construction or installation.

     within the framework of this guidance, flexibility may be
necessary regarding the timeliness of an enforcement response,
particularly regarding the following timeframes:

     o  The timeframe from inspection to violation discovery;

     o  The timeframe for formal enforcement action in the
        case of High Priority Violators; and

     o  The timeframe from referral to filing, in the case
        of civil referrals, both to the AG and to DOJ.

     In cases where these timeframes will be exceeded due to the
case-specific circumstances described below, the States and
Regions must monitor case development.  In cases where timely
enforcement action (as defined by this policy) will not be
feasible, the Regions and States must be prepared to justify the
delay and develop an alternative schedule for case resolution.

     In all cases in which the State or Region deviates from ERP
timeframes,  the States and Regions must closely track case progress
and adhere to their alternative case resolution schedule. In
addition, in the event that the Region does not find the State's
reasons for the delay within ERP guidelines, the Region may decide
to take Federal action.

     1.  Violation Discovery Timeframe

     A violation is discovered as of the date when the case
development staff determines, through review of the inspection
report, record review, and/or data (e.g. laboratory reports),
that a violation has occurred.  The violation discovery date
for evaluation purposes, assumed in the National Quality Criteria
and restated here, is 45 days from the date of inspection.

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                                                  9900.0-1A

                                -15-


      3.   Referral  to riling  Tinefrane

      In  all  cases  involving  either State  referral to the AC- or
 other  appropriate  legal  authority or referral of a case by EPA
 to  the Department  of Justice,  the established tineframe is 60
 days  from case  referral  to filing.  However, some complicated
 cases  may require  more than  60 days. £_/

     Circumstances which may require more than 60 days from civil
 referral  to  case filing  are  cases in which:

     o Additional data  or information collection is requested by
        the  Attorney General's office or  DOJ for case development;

     o The  Attorney General or DOJ is investigating to determine
        if criminal  prosecution is appropriate;

     o Cases involving  other  media (e.g. air pollution violations
        were also  involved at  the facility); or

     o Novel legal  issues or  defenses.

 IV. ESTABLISHING PRIORITIES

     The  Regions and States  should prioritize their enforcement
 efforts in the  following order:  1) Significant Non-Compilers,
 2) High Priority Violators,  3)  Medium Priority Violators, and
 4) Low Priority Violators.   However, enforcement actions need
 not be taken against all High  Priority Violators before any
 actions are  initiated against  Medium Priority Violators.  Because
 the different categories of  violators merit different levels of
 response with varying resource requirements, most Regions and
 States will want to  respond  to a mix of the various categories
 of violators.  This  is an acceptable approach, although the Regions
 and States should  keep in mind that oversight activities will
 focus  first on Significant Non-Compliers.  Therefore, the emphasis
must be on these and other High Priority Violators.
£./ In order to assist the State  Attorney General  (AG) or other
appropriate legal authority  in meeting  established timeframes,
the State should provide both technical and funding support to
that authority.  It  is the responsibility of the  program office
to fully prepare a case so that  it  is complete when referred  for
judicial filing.  This preparation  includes conferring with the
legal staff in advance of referral  in order to know and develop
what the legal staff need to support the anticipated enforcement
action.  After referral, the program office must  be prepared  to
provide further case development support.

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                                                   9900.0-1A

                               -17-


      In order to facilitate achievement of "timely and appropriate"
 enforcement responses against nonconpliant facility owners and
 operators State/EPA coordination is essential.  Regular case
 status meetings, written and telephone contacts should supplement
 use of monthly Compliance Monitoring and Enforcement Log (CMEL)
 sheets.  Status updates on specific cases are especially important
 when  alternative schedules are being followed.

      State Referrals to EPA

      In carrying out the responsibilities for the enforcement
 of RCRA, authorized States sometimes find it necessary and
 desirable to refer certain cases to the Region for Federal
 enforcement.  As with other responses, if the State decides to
 refer an HPV to EPA, this must be done within 90 days of Violation
 Discovery.  In such cases it is not expected that the Regions
 would start the timeframe "clock" all over again; nor is it
 anticipated that the Region will need as much time to develop
 a complaint or DOJ referral.

     For HPV cases a complaint should be issued, or referral
 made to OOJ, within 90 days of receipt of the referral package.
 The State should provide any case development information
 available to the Region as part of the referral package.  This
 should provide a reduction in the time needed for Regional
 case development,  allowing the Region to address the situation
 more expeditiously.  There is some flexibility in the timeframes,
however,  so that where necessary, a Region may verify the
 nature of the violations through a case development inspection.
Where a referral arises from a joint inspection, familiarity
with the case should expedite Regional handling of the case.
 If a Region finds more time is necessary in dealing with a
 State's referrals,  the Region should work out an agreement
with the State to provide early notice of referrals in advance
of the "timely" referral date indicated by the policy (i.e.
where the State's "appropriate" response must be a referral to
EPA because it cannot otherwise appropriately address a violator).

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Enforcement Response Timeline
High Priority Violators
                                   90
                                  Days
                            Develop
                      Administrative Enforcement
                             Action
ADMM ACTION
   TAKEN
                                                                         COMPLIANCE
                                 NOTN
                              COMPLIANCE

INSPECTION/
HI CORD RE VIEW
45
Days
VIOLATION
DISCOVERY



                          Develop Judicial
                            Retenal
                                   90
                                  Days
    CASE
  REFERRED
  TO JUDICIAL
  AUTHORITY
 60
Days
CASE
FLED
 I  ** i
•i SB/

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                                                    9900.0-1A
                             APPENDIX


 Violation Classification Examples and How to Classify Violators


     Violation Classification examples are presented to help
guide compliance officials in making case-specific decisions
necessary in determining violation classification as well as
classification of the violator for purposes of determining
appropriate enforcement response.

     The Violator characteristics are briefly restated here.
The Medium Priority Violator is a handler with one or more Class
I violations not meeting criteria to be designated a High Priority
Violator.  The High Priority Violator is a handler who caused or
poses substantial likelihood of exposure to waste or constituents;
is a chronic or recalcitrant violator; or substantially deviates
from the program requirements or terms of a permit, order or decree
by failing to perform work as required or in a timely manner.
Violations of certain program requirements (such as examples
provided in this appendix) will be considered to be "substantial
deviations",  requiring HPV status.  Examples of these violations
are listed in this appendix as "HPV".  In looking at handlers
which do not have these particular violations, the compliance
official should consider the combined effect of violations, the
results of previous inspections at the facility, as well as the
violator's responsiveness in rectifying previous violations, in
determining whether the violator is an HPV.

     The Class I violation is defined as a deviation from
regulations,  Compliance Orders, or permits which could result in
a failure to: assure hazardous waste is destined for and delivered
to authorized TSDFs; prevent releases; assure early detection of
releases; or perform corrective action for releases.  The Class
II violation is defined in the negative; violations not meeting
criteria for Class I designation are classified as Class II.

     As indicated in the ERP text, classification of the handler
violator category is made using information about the likilihood
of exposure,  the violations (extent of deviation from requirements),
violation history (have the same requirements been a compliance
issue in the past?), and past experience in dealing with handler
(in the past has enforcement escalation been necessary, or has
the initial WL/NOV been sufficient to obtain compliance?).

     If in past dealings with a facility informal actions have not
been successful in addressing violations, resulting in a delay
in returning the facility to compliance, the compliance official
should consider whether an informal action is likely to obtain
compliance in this case.  Where formal action is taken an economic
sanction may well be appropriate, even though not required  in

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                                                  9900.0-1A


                                = 3-
      Such a handler should  be  considered  a  High  Priority Violator
 (HPV)  because  the system inadequacies  may allow  a plume or part
 of a  plume to  migrate unaddressed,  or  postpone detection until a
 large  volume of waste or leachate has  been  released.  [This
 violation has  caused a "substantial likelihood of exposure".]

 Example  2.

     Ground-water monitoring well screens are too long, dilution
 causes low indicator readings.  While  corrective action is
 indicated (i.e.  samples  indicate need  for further investigation
 of possible release),  levels are too low  to trigger assessment
 monitoring (or compliance monitoring).  This is  a violation
 of the ground-water monitoring system  performance standard and
 is a Class I violation because the  ground-water  monitoring system
 was inadequate to trigger the  appropriate monitoring system
 response.

     As  long as  the corrective action  process proceeds to
 provide  the necessary characterization to allow  the release to
 be appropriately addressed, this handler  does not have to be
 characterized  as an HPV.  However,  if  o/o delays response, HPV
 designation may  be indicated.

 Example  3.

     Damage to a well  may impede follow-up  sampling critical to
 a  site evaluation or other  inspection.  A case in point is where
 an initial  sampling indicates  need  for further sampling from a
 specific  well  to further evaluate a possible release.  Upon
 returning to the well  at a  later date,  the  well  is found to be
 damaged so  as  to prevent the taking of reliable  samples.  This
 is a Class  I,  and the  handler  must  be  considered to be an HPV
 due to the  nature of the violation  and the  suspicious circumstances

 Example 4.

 Sampling  and analysis

     Regulations require that  sampling and  analysis of ground
water be performed at  certain  intervals.  Failure to sample at
 proper intervals or for  all required parameters  could result in
 the failure to detect  changes  in ground-water quality... Class I
 violation  - HPV  may be indicated depending  on extent of deviation
 from requirements.    Class  I violation and  HPV status would be
 required where a facility fails to  perform  sampling or analysis
when required  or uses  poor  techniques  or  procedures which
 invalidate  results.

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                                                 9900.0-1A


                               -5-

    Examples of Violation and Violator Classification


o  Failure to carry out waste analysis for a waste stream.     HPV
   (unless o/o is properly applying "knowledge-of-process")

o  Operating without a permit or interim status.               HPV

o  Failure to comply with 90 day storage limit by generator.   Class I
   (Gross deviation from requirement or failure to rectify
   upon notice elevates this to HPV.)

o  Commencing construction prior to permit approval at a new   HPV
   facility or new part of a facility where permit is
   required before such construction is commenced.

o  Complete failure to respond to a §3007 request.             HPV

o  Systematic failure of a generator or transporter to         HPV
   comply with the manifest system or substantial deviation
   from manifest requirements.  [More routine manifest
   violations of a limited nature may not require HPV
   designation, such as where one manifest out of a large
   number was not signed (and the waste was properly handled
   and disposed of anyway).  In such a case, a Class I violation
   is appropriate, however HPV designation is not required.
   The most minor manifest violation (e.g. omission of a
   generator ID number) may be a Class II.

o  Failure to satisfy manifest discrepancy reporting           HPV
   requirements.

o  Failure to prevent the unknown entry or prevent the         HPV
   possibility of the unauthorized entry of persons or
   livestock into the waste management area of the facility.

o  Failure to properly handle ignitable, reactive, or          HPV
   incompatible wastes as required by 264 and 265.17(b)(1),
   (2),(3),(4), and (5).

o  Disposal of hazardous waste in a regulated quantity         HPV
   at a non-regulated TSDF.

o  Improper disposal of waste in violation of the land         HPV
   disposal restrictions.

o  Mixing, solidifying, or otherwise diluting waste to         HPV
   circumvent land disposal restrictions.

o  Incorrectly certifying a waste for disposal/treatment       HPV..
   in violation of the land disposal restrictions.

o  Failure to submit notifications/certifications              HPV
   as required by land disposal restrictions.

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                                                         9900.0-1A


                                -7-


 o   Failure to follow "emer(je>nc^_orqcedur<5s  contained
    in the  response ~p~la~n ~whi~ch~ "could result in  serious harm.
    Therefore failure *o ~*cry out  the  followi-ig  t/p«s of
    activities during an emergency  would  be considered a
    Class  I violation_ and  indicate  a HPV:
    Response activities  include:  activating alarm and/or
    notify  appropriate emergency officials;  assessing extent
    and  seriousness of release;  reporting findings of spills
    outside a facility;  containing  hazardous waste; monitoring
    any  shut-down  operations;  properly  treating,  storing and
    disposing of the  spill;  and cleaning  up completely after
    the  accident.

 o   Storage of waste  in  a  container that  is not in good        Class I
    condition.
    -  General use  of  containers which are in poor condition.    HPV

 o   Failure to give police,  fire  department, and  hospitals     Class I
    information that  will  be nee.ied if  there is an emergency
    at the  facility.   [NOTE:  HPV is indicated if  fire department
    is not  made aware of risk? and  special  equipment needed to
    respond to emergencies at  facility  or lack  of preparedness
    poses potential threat to  human health.]

 o   Failure to label  a H.W.  drum with required  information.    Class I
  - If  this  incorrect labeling could cause an  inappropriate
    response  to a  spill  or leak and subsequent  release or       H'
   potential harm to human  health  or the environment.
  - a general  failure to  follow drum labeling  requirements     HPV
   or lack of knowledge of  drum contents.

o   Failure to date containers/tanks with accumulation date.    HPV

 o   Failure to placard or  incorrectly placarding  a             Class I
    vehicle carrying  hazardous waste.
  - Multiple placard violations, past  similar  problems         HPV
   or if there is a  spill or  accident  during transportation
   and  this  results  in  inappropriate response.

o  Failure to conduct adequate personnel training.            £lass I
  - Failure  to maintain complete records.                     Class II

o   Deviations  from export rule requirements.                  Class I
  - Systematic failure  to comply with  export rule
   or substantial deviation from requirements.                 HPV

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MISCELLANEOUS MEMORANDA
ANALYZING KEY DECISIONS

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                JAN 2 5  1991


                                                    OFFICE OF ENFORCEMENT
MEMORANDUM

SUBJECT:  Favorable Court Opinion  in U.S.  et  al. v.  Production
          Plated Plastics.  Inc. et al..  K87-138 CA  (W.D. Mich.)
FROM:     Kathie A. Stein
          Associate Enforcement Counsel  for RCRA

TO:       Regional Counsels
          Associate Enforcement Counsels
          Bruce Diamond, Director OWPE
          Lisa Friedman, Associate General Counsel  for  Solid
            Waste and Emergency Response

     In an opinion and order dated January 24,  1991,  the
Honorable Benjamin F. Gibson, U.S. District Judge for the Western
District of Michigan, granted in part the United States' Motion
for Partial Summary Judgment on Injunctive Relief,  in an action
brought under the Resource Conservation  and Recovery  Act (RCRA),
42 U.S.C. 6901 et seq.  Accordingly, the court  ordered  defendants
Production Plated Plastics, Inc. (PPP),  Michigan City Plastics,
Inc. (MCP), and Michael J. Ladney, Jr. to immediately commence
closure of its Richland, Michigan facility in accordance with its
approved closure plan.  This is believed to be  the  first RCRA
case in which the court awarded injunctive relief on  summary
judgment.

     PPP* engaged in molding,  electroplating,  and painting of
plastic parts, primarily for the automotive industry, since 1966.
Although PPP obtained interim status in  1980, its authorization
to treat, store and dispose of the listed hazardous waste F006,
generated in its processes, was lost in  November 1985.  Loss of
interim status (LOIS) was due to PPP's failure  to certify
compliance with financial assurance and  groundwater monitoring
requirements, as mandated by the Hazardous and  Solid  Waste
     1MCP owns PPP.  Mr. Ladney runs both companies, is the
majority stockholder of MCP, and a  corporate  officer  of  both
corporations.  There was evidence that  Mr.  Ladney  took a direct
management role, on a daily basis,  in business  operations.
                                                             rm Dtf^-Ud fan

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Amendments of 1984.*  Michigan  is a  co-plaintiff, under  RCRA's
citizen suit provision.3

     On May 14, 1990, the court granted summary judgment on
liability.4  Michael  Ladney was held personally  liable,  jointly
and severally, for the RCRA violations.  The court did not rely
on or discuss theories of "piercing the corporate veil;" the
court found liability based on evidence that Mr. Ladney was
"personally involved in or directly responsible for acts in
violation of RCRA	n>

     In granting injunctive relief on summary judgment,  the court
held that an evidentiary hearing is not always required before an
injunction is issued, if affidavits or other documentation
clearly establish the plaintiff's right to the injunction.
Furthermore, if the purpose of the legislation would be thwarted
by a failure to comply,  and the legislation specifically
authorizes injunctive relief, no finding of irreparable injury or
balancing of the equities need be made.  The court then found
that, in failing to implement a closure plan mandated by RCRA,
defendants were acting directly at odds with the stated purpose
of RCRA.  The court noted that, even under the traditional
standards for issuing injunctive relief, implementation of the
closure plan was mandated, as it was the only adequate remedy.
Irreparable injury was established by the nature of hazardous
wastes, and RCRA is specifically designed to protect the public
from the threat of harm caused by it.

     The court denied summary judgment on the United States'
motion for an injunction ordering compliance with the financial
assurance requirements of 40 C.F.R.  § 265.143.  Although the
court pointedly noted its doubts as to defendants' forthrightness
in asserting that they could not afford to provide financial
assurance, the court was not convinced that no adequate remedy at
law (monetary damages)  was available.   Furthermore, the court did
     'See 42 U.S.C. 3005(e).

     'See 42 U.S.C. 7002.

     4742 F.Supp. 956  (W.D. Mich.  1990).  The  four-count
complaint had alleged discharges of hazardous waste into unlined
surface impoundments and operating waste piles without a permit
(after having lost interim status), failing to submit a closure
plan or undertake closure in a timely manner, failing to submit a
post-closure plan,  and continued operation of an unlicensed
hazardous waste storage and disposal facility in violation of
Michigan law.   MCP's liability was not addressed at that time.
However, MCP has since agreed to stipulate to liability.

     '742 F.Supp. at 963.

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not believe •that providing financial assurance was an overriding
purpose of RCRA, unlike closure obligations.

     The court also denied summary judgment as to groundwater
monitoring requirements.  The court found that a material issue
of fact remained as to whether defendants' groundwater monitoring
obligations under RCRA were substantially fulfilled by compliance
with a state order.

     The remaining issues, including appropriate civil penalties,
will be addressed at trial, scheduled to commence on February 4,
1991.  The Region V attorney handling this, case is Stuart Hersh;
the Department of Justice attorney is Elliott Eder.  Bette Ojala
(FTS 382-3087) is the member of my staff assigned to this case.

cc:  James M. Strock
     Edward E. Reich
     Scott Fulton
     Brian Runkel
     Robert Van Heuvelen
     ORC RCRA Branch Chiefs
     Susan O'Keefe
     Silvia Lowrance
     William Frank
     Susan Bromm
     OE RCRA Attorneys

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON.-D.C. 20460
                                                   OFFICE OF ENFORCEMENT
                                               NOV 1 8 1990
MEMORANDUM
SUBJECT:  Seventh Circuit Affirms Largest RCRA  Civil  Judicial
          Penalty Ever Assessed: U.S. v. Environmental  Waste
          Control f"EWC"l. d.b.a. "Four County  Landfill".  Fulton
          County, IN

FROM:     Kathie A. Stein  ,
          Acting Associate Enforcement Counsel  for  RCRA

TO:       Regional Counsels, Regions I - X
          Waste Management Division Directors,  Regions  I  - X
          Lisa Friedman, Associate General Counsel
          Bruce Diamond, Director OWPE

     Attached for your information is a copy  of the October 31,
1990 decision of the United States Court of Appeals for the
Seventh Circuit affirming in all respects the district  court's
order in favor of the government (and the intervening citizen's
group, Supporters To Oppose Pollution ("STOP"))-  The district
court's 1989 decision assessed penalties of $2.778  million,  the
largest RCRA civil judicial penalty ever assessed.

     This decision represents a significant victory for the
Agency and one of the most notable successes  from the Agency's
Loss of Interim Status Initiative.  Both this decision  and the
underlying district court opinion provide favorable legal
precedent on a variety of issues for use in future  RCRA cases.
Congratulations to Region v, and to the litigation  team,  for
their perseverance and hard work on this important  matter.

     In affirming the district court's decision, the  Seventh
Circuit permanently enjoined operation of the EWC landfill and
ordered EWC to conduct corrective action.  The  district court had
granted such injunctive relief and penalties  based  on EWC's
operation of the landfill after losing interim  status,  and based
on the contamination to ground water that resulted  from landfill
releases.  Significantly, EPA sought only temporary closure of
the landfill; permanent closure was sought by the citizen  -
intervenors.  In upholding the district court's decision,  the
Seventh Circuit flatly rejected EWC's assertions that section
                                                          Pruutd on Rtcycltd Paotr

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3008(h) of RCRA did not .authorize'permanent injunctive relief in
interim status cases.

     EWC lost interim status as a result of financial assurance
and ground water monitoring deficiencies.  The court noted that
EWC's good faith efforts to comply with the ground water
monitoring and financial responsibility requirements were
relevant only to the scope of relief and penalties and not to
EWC's liability, thus rejecting EWC's "good faith defense."  Slip
op. at 8, 11, n.4.

     Although the Seventh Circuit concluded that the district
court properly balanced the equities of this case in deciding
whether to issue an injunction closing the landfill, the court
also noted that such a balancing probably is unnecessary where
the defendant's conduct was wilful (as in this case)7.  Relying on
EOF v. Lamphier. 714 F.2d 331 (4th Cir. 1983), the court also
noted that balancing may be unnecessary where the plaintiff is
the government and public health may be endangered.  Slip op. at
7.

     Also notable is the Seventh Circuit's finding that the
district court properly rejected EWC's claims that the government
should be estopped by allegedly erroneous statements made by a
"RCRA Hotline" employee.  Slip op. at 10.  The court found that
reliance on 'such statements was not reasonable in this case and
not adequate as a general legal matter to form the basis for
precluding enforcement.  Id.

     Please feel free to contact me, or have your staff contact
Gary A. Jonesi (382-3072), if you have any questions about this
decision.

cc:  James M. Strock
     Edward E. Reich
     Scott Fulton
     Robert Van Heuvelen
     David Van Slyke
     Mary Gade
     Silvia Lowrance
     Margaret Schneider
     Office of Regional Counsel RCRA Branch Chiefs
     Richard Emory
     Frank Covington

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£
i  r^K^ * UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\*ti\G£f                 WASHINGTON. DC. 20460
                           FEB I  4 1969
 MEMORANDUM

 SUBJECT:   Favorable Ruling re Minimum Technology Requirements
           and EPA Jurisdiction in United States  v.  Environmental
           Waste Control. Inc.. (Four County Landfill)

 FROM:      Glenn L.  Unterberger
           Associate Enforcement'Counsel for Waste

 TO:        Regional  Counsel, Regions I - X
           Regional  Counsel Waste Branch Chiefs,  Regions  I  - X


      The  United SL-tes District Court for the Northern -.strict
 of  Indiana ruled on motions for summary judgment before  it on
 the above-captioned matter.  This case concerns  an  action  for
 injunctive relief and penalties pursuant to Section 3008 of RCRA
 against Environmental Waste Control, Inc. (EWC), the owner and
 operator  of the facility and the sole shareholder of EWC.

      The  United States sought summary judgment on (1) whether
 EWC violated minimum technology requirements prescribed  under
 RCRA;  (2)  whether the actions of the sole shareholder of EWC
 were such as to render him an "operator"; and (3) whether  EWC
 had sufficient insurance coverage or appropriate ground  water
 monitoring procedures when it filed its final permit
 application.

      EPA's underlying action alleged that EWC disposed of
 hazardous waste into unlined cells after May 8,  1985, in
 violation of the minimum technology requirements of RCRA.
 Defendant EWC argued that its landfilling method did not
 constitute a prohibited lateral expansion and further argued
 that if such an expansion occurred, EWC halted such practices
 months before this  action was filed.  In holding as a factual
 matter that EWC violated minimum technology requirements,  the
 Court  stated its deference to EPA's interpretation  of "lateral
 expansion" and added that "EWC's assertion that  it  no longer
 dumps  in  unlined cells and has transferred waste to proper
 containers does not render the case moot."  Slip Op.  at  28.

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                              - 2 -

     Also at issue'on the'government'.s motion for summary
judgment was whether the sole shareholder of EWC is personally
liable as an "operator" of the landfill.  EPA contended that
given this defendant's sole ownership of EWC, EWC's 100%
occupation of his business activities, and his frequent
operation of equipment at the landfill, this defendant should be
deemed an "operator" for purposes of liability under RCRA.
Defendant argued that EPA has determined that EWC is an operator
and that the statute is void of a provision which allows for - ~e
naming of more than one operator at this site.  The Court was
unpersuaded based on the facts before it that actions of the
defendant were so extensive as to make him an operator for the
purposes of RCRA.  The Court was similarly unpersuaded that "no
more than one person may be an operator with respect to a given
hazardous waste facility."  Slip Op. at 15.  Accordingly, the
Court denied plaintiff's and defendant's motions for summary
judgment on this issue.

     The Court found that the issue as to whether defendant had
sufficient insurance coverage and appropriate ground water
monitoring procedures was a factual matter over which the
parties disagreed.   Defendant had raised an estoppel argument
with regard to insurance coverage based on information received
from the Agency's "hotline."  Also, experts on behalf of EWC and
EPA made conflicting determinations with respect to the placement
of the monitoring wells.  Hence, summary judgement on these two
issues was not appropriate due to the material issues of fact in
dispute.

     The Court also found that EPA has jurisdiction to proceed
with all counts of its complaint and that defendant's assertions
of the State's primary jurisdiction in this matter were
misplaced.

     If you have any questions regarding this matter, please
contact Linda Parker of my staff at 475-8865.  A copy of this
decision is attached.
Attachment

cc:  Bruce M. Diamond, OWPE
     Lisa K. Freidman, OGC
     David T. Buente,  DOJ
     OECM-Waste Attorneys

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         f

         3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
        ,                  WASHINGTON. D.C. 20460
                             MAY 1 4 1990
                                                             Offire of
                                                           ENFORCEMENT AND
                                                         COMPLIANf.t MONlTQXI
MEMORANDUM

SUBJECT:  Favorable RCRA Decision in U.S. v. Vineland Chemical
            Co., Inc., et al . , Civil Action. No.  86-1936  (D.  N.J.)
FROM:     Kathie A. Stein
          Acting Associate Enforcement Counsel for RCRA

TO:       Regional Counsel, Regions I - X
          Waste Management Division Directors, Regions I - X
          Lisa Friedman, Associate General Counsel
            for Solid Waste and Emergency Response
          Bruce Diamond, Director
            Office of Waste Programs Enforcement


     On April 30, 1990, the U.S. District Court for the District
of New Jersey ordered the Vineland Chemical Company and its
owners to pay $ 1,223,000 .in civil penalties for violations of
the "Loss of Interim Status" provisions of the Resource
Conservation and Recovery Act ("RCRA"), and to close their two
surface impoundments in accordance with New Jersey requirements.

     In absolute dollar terms, the penalty is the second highest
ever imposed under RCRA by a federal judge after a trial.  Judge
Gerry calculated it by penalizing defendants $ 1,000 per day per
violation.  As discussed below, the decision is significant not
only for the deterrent value of the penalty amount, but also for
the assessment of penalties for both multiple (i.e. more than one
violation per day) as well as multi-day violations.  A copy of
the decision is attached.

     Background

     Defendants lost their authorization to operate under interim
status on November 8, 1985, as a result of submitting a deficient
RCRA § 3005(e) (2) (B) certification of compliance with RCRA
^roundwater monitoring and financial responsibility requirements.
/he Third Circuit upheld EPA's decision to terminate interim
s tatus .   Vineland Chemical Co. v. U.S. Environmental Protection
a, tency .  810 F.2d 402, 410 (3d Cir. 1987).  In July, 1988, the
  strict court granted the government's motion for summary
judgment on liability and found defendants liable for operating

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their impoundments without authorization and for failing to
submit timely plans for closure of the impoundments.

     Without authorization, defendants continued to place
hazardous waste in their  lined lagoon for 261 days, and in their
concrete pit for 447 days; moreover, defendants submitted their
closure plan to EPA 515 days late.  This totalled 1223 "days of
violation."

     The decision discussed in this memorandum arises from a
bench trial held by the court on September 26-28, 1989, to
resolve penalties and injunctive relief.

     Environmental Impact

     This decision constitutes another important signal that
federal judges view RCRA violations with increasing seriousness,
and are willing to impose substantial penalties for them.  See.
e.g.. United States v. Environmental Waste Control. Inc.. 710 F.
Supp. 1172, 1245 (N.D. Ind. 1989)(civil penalty of $2,778,000 for
1,389 days of illegal operation; $2,000 per day); and United
States v. T & S Brass and Bronze Works. 681 F. Supp. 314, 322 (D.
S.C. 1978), aff'd in part and rev'd in part on other grounds. 865
F.2d 12ul (4th Cir. 1988), 28 ERC 1649 (1989)(civil penalty of
$194,000 for 194 days of  illegal operation; $1,000 per day).

     The opinion contains language that may be useful as
precedent in the government's efforts to recoup the economic
benefit of noncompliance and to impose substantial penalties
against violators.  For example, Judge Gerry stated that:

     [D]efendants have been forestalling compliance with
     RCRA for more than four years, preferring to appeal
     regulatory decisions rather than comply with them....
     [T]he court must exact a penalty which makes the cost of
     polluting as unacceptable a business cost as the arsenic
     contamination in the soil underneath Vineland's plant is an
     unacceptable social cost.

Findings of Fact and Conclusions of Law ("Findings") at 15-16.
The court advised that "[w]e must be clear to the regulated
community that violations . . . are not treated lightly," and
further stated that M[t]oo small a penalty risks being
considered by violators as 'an acceptable cost of violation,
rather than as a deterrence to violation."1  Findings at 13-14.
(citations omitted.)

     In a rebuke to defendants' attempt to cast their failure to
satisfy RCRA's § 3005(e)(2) (B) certification requirement as a
minor matter, Judge Gerry declared that the sizeable penalty
imposed here "is intended to show defendants that the court
regards their actions as much more than merely 'a paper
violation.'" and is aimed at "deter[ring] defendants and others
from committing similar acts in the future."  Findings at 16.

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     Finally, in calculating the penalty, the court actually
 Assessed multi-day penalties for each violation.  This resulted
 in a penalty of $1000 per day per violation.  In addition to
 treating the failure to submit a closure plan as a separate
 violation from continued use of the surface impoundments, the
 court treated use of the two surface impoundments as two separate
 violations.

     This decision and others like it should assist our efforts
 to secure RCRA civil penalties that serve as a substantial
 deterrent to noncompliance, both in litigation and in settlement
 of federal administrative and civil judicial actions.

     If you have any questions about this matter, please contact
me at FTS 382-3050, or have your staff call Laurence M. Groner of
OE-Superfund at FTS 382-3054.

cc:  James M. Strock, Assistant Administrator, OE
    Edward E. Reich, Deputy Assistant Administrator, OE
    Scott Fulton, Senior Enforcement Counsel, OE
    David T. Buente, Chief, EES/DOJ
    Glenn Unterberger, AEC for OE-Superfund
    David B. Van Slyke, Deputy AEC for OE-Superfund
    Regional Counsel Waste Branch Chiefs, Regions I - X
    OE-RCRA attorneys
    OE-Superfund attorneys
    Beverly Kolenberg, US Attorney's Office, NY, NY
    Carrick Brooke-Davidson, EES/DOJ

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
FILE
                            DEC 1 3 1990
                                                   OFFICE OF ENFORCEMENT!
MEMORANDUM
SUBJECT:  Favorable Decision in Case Against Secondary Lead
          Smelter: United States v.  ILCO. et al.
FROM:     Kathie Stein
          Acting Associate Enforcement Counsel for RCRA

TO:       Regional Counsels, Regions I-X

          Hazardous Waste Division Directors,  Regions I-X

          Bruce M. Diamond
          Director, Office of Waste Programs Enforcement

          Lisa K. Friedman
          Associate General Counsel for Solid Waste and Emergency
            Response

     On December 10, 1990, more than two years after the case
went to trial, the U.S.  District Court for the Northern District
of Alabama issued its decision in United States v. ILCO. et al.
(CV85-H-823-S) .  The court ruled in favor of the United States on
virtually every issue, finding defendants liable for civil
penalties, injunctive relief, and reimbursement of response
costs.

     The United States filed this multi-media action against ILCO
(a.k.a. Interstate Lead Company) and ILCO's president,  Diego
Maffei, in March 1985, and the State of Alabama intervened as co-
plaintiff.  The action sought civil penalties and injunctive
relief for violations of the Resource Conservation and  Recovery
Act (RCRA) and the Clean Water Act (CWA); and reimbursement of
response costs incurred by EPA pursuant to the Comprehensive
Environmental Response,  Compensation, and Liability Act (CERCLA).
The original action also included claims for further injunctive
relief under sections 3008(h) and 7003 of RCRA and section 106 of
CERCLA, although these claims were settled during trial.  The
remaining issues in the case were tried in July and August 1988.
This case is an excellent example of the benefits of cross-media
enforcement, and Region IV and the litigation team are  to be
commended for their efforts.

     ILCO is a secondary lead smelter located in Leeds, Alabama.
The company reprocesses spent lead-acid batteries from  cars and
                                                           Primed 01 Recycled Paper

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trucks.  Incoming batteries are cracked open and drained of
sulfuric acid.  Lead values are then removed from the broken
batteries and run through ILCO's smelting process, which produces
saleable lead ingots.  The operation produces several hazardous
waste streams, including waste acid, wastewater treatment sludge,
broken battery casings or "chips," and blast slag from the
smelting process which is EP toxic for lead.  At trial ILCO
contended, based on its own sampling and analysis, that the blast
slag is not EP toxic, and this became one of the central issues
in the case.

     The court's findings of fact and conclusions of law merely
adopt, with little further analysis, various proposed'findings
submitted by the United States.  Significantly, however, the
court found that the blast slag is EP toxic for lead, and
therefore a hazardous waste under RCRA.  Slip op. at 6, n. 3, and
at 28.  The court further found that the sampling method employed
by ILCO — taking casts of the molten slag and running the cast
samples through a structural integrity test — is not appropriate
for blast slag under 40 C.F.R. § 261, Appendix II, since the slag
is not a "fixated" or "monolithic" waste.  Slip op. at 32.  This
sampling method has been employed by other secondary lead
smelters around the country, and has been advocated by the
Secondary Lead Smelters Association.  The ILCO decision thus
affirms EPA's position on sampling of blast slag from secondary
lead smelters — as well as similar wastes — and will be useful
in pending or contemplated enforcement actions against other such
facilities.

     Having found the blast slag to be hazardous waste, the court
found that the defendants had violated numerous provisions of
RCRA and the Alabama Hazardous Waste Management Act, and are thus
liable for injunctive relief and civil penalties for those
violations.  Slip op. at 36, 38.  Similarly, the court found the
defendants liable for injunctive relief and civil penalties for
violations of the CWA and the Alabama Water Pollution Control
Act.  Id. at 35, 37-38.  Finally, the court found defendants
liable under section 107(a) of CERCLA for reimbursement of at
least $673,211.92 in response costs that EPA incurred in
conducting a removal action at the "Church of God" site.  ILCO
had disposed of blast slag at this site.

     The court deferred a ruling on the amount of penalties or
the form of injunctive relief, however.  Apparently the court is
concerned that the judgment in this case may put the financially
struggling ILCO out of business.  Throughout its ruling, the
court emphasizes what it sees as "the delicate balance of
requiring compliance (and punishing noncompliance) of federal and
state environmental laws by a company whose existence as a viable
business is of great value to the implementation of policies

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embodied in those laws."  Id. at 40.  Accordingly, the court
ordered the parties to attempt to reach an agreement on the
appropriate relief consistent with its findings.

     If you have any questions regarding this case or would like
a copy of the decision, please call me or Charles de Saillan of
my staff (382-3103).

cc:  James Strock
     Scott Fulton
     Edward Reich
     Fred Stiehl
     David Van Slyke
     Michael Alushin
     Michael Walker
     Robert Van Heuvelen
     Robert Harp
     Margaret Schnieder
     Nancy Firestone
     Dick Emory
     Frank Covington
     Sylvia Lowrance
     RCRA ORC Branch Chiefs, Regions I-X

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

'•V«o^°                   'WASHINGTON, D.C. 20460
                                                          OFFICE OF
                                                         ENFORCEMENT
                                   JUL 1 1 1990
MEMORANDUM

SUBJECT:  Favorable D.C. Circuit Decision Regarding "EPA's
          Authority to Regulate Recyclable Metal Smelting
          Residues as "Solid Wastes" Under RCRA
FROM:     Kathie A. Stein
          Acting Associate Enforcement Counsel for RCRA

TO:       James M. Strock
          Assistant Administrator

     As we had hoped, attached for your  information  is a  copy  of
a very favorable decision regarding EPA's RCRA jurisdiction.   In
this case, American Mining Congress v. EPA. No. 88-1835  (D.C.
Cir. July 10, 1990) f "AMC I I'M . the court held, inter alia,  that
EPA did not exceed its statutory authority  in regulating  certain
metal smelting residues as "solid wastes" under RCRA, even where
such residues "may at some time in the future be reclaimed."
Slip op. at 12.  From an enforcement perspective, the decision
may be very helpful in rebutting defendants' arguments that
recyclable materials are not "discarded" (and thus not subject to
RCRA jurisdiction), since it clearly states that "potential
reuse" of a material does not preclude EPA  regulation as  a "solid
waste."  Slip op. at 14.

     In support of its holding, the court cited its  June  26, 1990
decision in American Petroleum Institute v. EPA (No. 88  -
1606) ("API" ), which we recently transmitted to you.  In  addition,
the court noted that the petitioners read the court's prior
decision in American Mining Congress v.  EPA. 824 F.2d 1177 (D.C.
Cir. 1987) ("AMC I'M . too broadly.  Slip op. at 13.  Although  OGC
and OE-RCRA are still examining this decision, our preliminary
analysis suggests that this 3- judge panel (and the 3- judge panel
that decided API v. EPA) has very favorably interpreted  its
decision in AMC I and significantly limited the unfortunate  dicta
in the case.  For example, in AMC I. the court invalidated EPA's
authority to regulate certain petroleum  and mining wastes based
on its conclusion that Congress limited  EPA's authority  in RGRA §
1004(27) to regulating materials that are "discarded" in  the
"ordinary sense."  824 F.2d at 1185.  As a  result, defendants  in

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enforcement actions have argued that potential reuse of a
material, even if  it has been placed on the land or otherwise
disposed, precludes it  from being a "solid waste" (and thus a
"hazardous waste") subject to RCRA regulation.  However, the
court in AMC II appears to have rejected the broad (and somewhat
ambiguous) "ordinary sense" standard and replaced it with a more
specific and narrow limitation on EPA's RCRA authority.  In
particular, the court concluded that the invalidation of EPA's
RCRA authority in  AMC I "concerned only materials that are
destined for immediate  reuse in another phase of the industry's
ongoing production process."  Slip op. at 13.

     Although the  court ruled favorably on the jurisdictional
issue, it also held that EPA had not sufficiently articulated a
basis for the listing of some of the six wastes from metal
smelting operations and remanded the matter for further
consideration and  explanation by EPA of its rationale for listing
waste codes K066,  K064, K065, and, in part, K090 and K091.  The
court rejected petitioners' contention regarding K088.

     Please contact me  if you have any questions.

Attachment

cc:  Edward E. Reich
     Scott C. Fulton
     Lisa Friedman
     Bruce Diamond
     Chris Grundler
     Regional Counsels, Regions I - X
     Regional Counsel Waste Branch Chiefs, Regions I - X
     LDR Enforcement Liaisons
     OE RCRA Attorneys
     David Van Slyke
     David Buente

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       3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460
                              :«v  30 IS8S
MEMORANDUM
SUBJECT:  Favorable Ruling on Agency's Interpretation of Section
          3008(h) of RCRA
FROM:     Glenn L. Unterberger      .
          Associate Enforcement Counsel for Waste

TO:       Bruce M. Diamond, Director,  OWPE
          Lisa Friedman, Associate General Counsel,
            Solid Waste and Emergency Response Division
          Regional Counsels, Regions I — X

     On December 19, 1988, a Memorandum and Order was issued by
Judge Graham of the United States District Court for the Southern
District of Ohio (Eastern Division) ruling on the parties'
motions for summary judgment in a RCRA LOIS case, United States
v. Clow Corporation (Region V) (Memorandum and Order attached) .
The United States moved for summary judgment on the issue of
liability for Clow's loss of interim status, for various
violations of an earlier consent agreement and final order, and
for violations of regulations governing its drum storage area.
Judge Graham ruled in the Agency's favor regarding Clow's
liability for LOIS and for most violations of the CAFO, but
declined to rule in a summary judgment proceeding on Clow's
liability regarding violations in its drum and tank storage area.
However, the most important issue presented to Judge Graham was
whether Clow was subject to the corrective action requirements of
Section 3008 (h) of RCRA for interim status facilities because of
the release of hazardous waste or constituents from its facility.

     Clow argued^hat it was not liable under Section 3008 (h)
because the plain language of the statute merely says that a
corrective action order may be issued to an interim status
facility from which hazardous wastes are being released, and the
releases at the Clow facility were releases of hazardous
constituents. (Fluorides, lead, sulfates, cadmium, arsenic,
selenium and cyanide, some of which are Appendix VIII hazardous
constituents, were found in monitoring wells at Clow's facility.)
Because test results revealed that the concentration level of
arsenic in at least one groundwater sample was high enough to
satisfy the criteria for EP toxicity  (a hazardous
characteristic), the court noted that there was evidence
presented which by itself was sufficient to hold Clow liable

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                               -2-

under Section 3008(h) for the release of hazardous waste into the
 mvironment.

     However, the court's decision went much further.   Following
the arguments in the United States' brief, the court cited the
legislative history, where reference to hazardous constituents
was made in the Conference report on the amendments which
included 3008(h); an agency guidance document which announced
that EPA was interpreting "hazardous waste" in 3008(h) to include
hazardous constituents; and the Agency's regulatory definition of
hazardous constituents, which places hazardous constituents
within the statutory definition of "hazardous waste."   Noting
that the statutory interpretation of an Agency charged with the
administration of that statute is entitled to great deference
where Congress has not clearly expressed a contrary intent and
where the Agency interpretation is rational, Judge Grah-am ruled
that Clow was liable to perform corrective action under section
3008(h)  for the release of hazardous constituents into the
environment as well as for the release of hazardous waste.

     If you would like any further information regarding this
case, please contact Belinda Holmes of my staff at 382-2860.

cc:  Edward E. Reich
     OECM-Waste Attorneys

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      r UNITED SPATES ENVIRONMENTAL PROTECTION
                       iVASHlNGTON. O C. 20460
                          MAR 22 .S5S
MEMORANDUM

SUBJECT:  Favorable D.C. Circuit Decision Regarding Ability of
          EPA to Regulate Wastes Disposed Prior to Being Listed
          as Hazardous and Wastes Found in Contaminated Media

FROM:     Gary A. Jonesi, Attorney
          RCRA Policy and Litigation1 'Suftpcfr't Branch

TO:       LDR Enforcement Liaisons
          OECM-Waste Attorneys

     Attached for your information is a March 14, 1989 decision
by the U.S.  Court of Appeals for the D.C.  Circuit upholding EPA's
ability to regulate RCRA listed hazardous wastes disposed before
being listed if such wastes are managed actively after the
effective date of the listing.  The court also upheld EPA's
ability to regulate media (e.g.. soil or ground water)
contaminated by listed hazardous wastes.

     In the case, Chemical Waste Management et al. v. EPA, the
petitioners challenged two major interpretative principles that
the Agency discussed in the preamble of the August 17, 1988
"First Third" Land Disposal Restrictions (LDR) final rule: (1)
the "retroactivity" of hazardous waste listings; and (2) the
"contained in" principle.1
     1 Petitioners also challenged the validity of the "waste
code carry-through" principle, but EPA has resolved this issue
with the petitioners.  As you may recall from my Tebruary 8, 1989
note summarizing EPA's January 27, 1989 Administrative Stay (54
Fed. Reg. 4021), the "waste code carry-through" principle is an
EPA interpretation of the 40 C.F.R. § 261.3(c) "derived-from"
rule.   The derived-from rule provides that solid wastes generated
from treating, storing, or disposing of listed hazardous wastes
remain hazardous wastes.  The waste code carry-through principle
is EPA's longstanding interpretation that the derived-from
residues carry the same waste code(s) as the original underlying
waste.  Thus, leachate (or any other residue) derived from
multiple hazardous wastes must meet the applicable LDR treatment
                                                  (continued...)

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     As discussed  below,  the court held in EPA's favor on both c
 the  issues.

 "Retroactivitv"  of Hazardous Waste Listings

     Petitioners claimed  that wastes are not hazardous if
disposed  in or on  the  land  prior to the date when EPA listed them
as hazardous, and  that  EPA's attempt to regulate such wastes is
unlawful  retroactive rulemaking.  EPA's position is that RCRA
hazardous waste  listings  are "retroactive" only in the sense that
once a particular  substance is determined to meet a hazardous
waste listing description,  all of that substance is considered to
be that listed hazardous  waste regardless of when it was
 initially disposed.  53 Fed. Reg. 31138, 31147-48 (August 17,
 1988) ("First Third" Final  Rule).  Generators or owners/operators
managing  such substances  are subject to RCRA Subtitle C
regulation only  if the  substances are managed actively "after the
effective date of  the  listing.  similarly, the substances would
be subject to the  Subtitle  C LDR requirements "if they are
managed actively after  the  effective date of the land disposal
prohibition for  the underlying waste."  Slip op. at 21 (citing 53
Fed. Reg. at 31148).  Therefore, petitioners' claim failed
because "[t]he rule has prospective effect only."  Slip op.  at
21.

     Although the  court explicitly reserved judgment on the
validity of the derived-from rule, slip op. at 9, n.4, it
presumed the validity of  the rule for purposes of this
litigation, id. . at 29, n.17, and addressed the narrow issue of
whether EPA reasonably  interpreted the derived-from rule to
encompass a presumption of  hazardousness for previously disposed
wastes that are actively  managed.  The court found that the
derived-from rule's presumption of hazardousness is "eminently
reasonable", i£. at 22, and added that "[t]he reasonableness of
     1(...continued)
standards for each of  the underlying wastes.

     See the series" of Federal Register notices I have
distributed recently:  EPA's waste code carry-through
interpretation was temporarily stayed, 54 Fed. Reg. 4021 (January
27, 1989); certain multi-source  leachate was rescheduled for land
disposal prohibition  in the Final Third, 54 Fed. Reg. 8264
(February 27, 1989);  permit modifications necessary to comply
with LDR  requirements  (e.g. .  to  add new waste codes to the
permit) can be more expeditiously processed, 54 Fed. Reg. 9596
(March 7, 1989); and  EPA is amending some of the "No Land
Disposal" treatment standards (to be published soon in the
Federal Register).  All of these actions taken together resolve
most of the major issues raised  by the petitioners regarding the
waste code carry-through principle.

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that presumption does not vary depending upon the ti~e --hen cr.s
underlying waste .was disposed."  td. at 23.

     The petitioners argued for regulation of only leachate
derived from wastes disposed after being listed, not leachate
derived from wastes disposed before being  listed.  The court
recognized that many landfills accepted wastes both before and
after they were listed as RCRA hazardous wastes.  The three-judge
panel vas unwilling to apply different standards to potentially
identical wastes disposed at different times because of the
"serious enforcement problems" that might result.  Id.   The court
could find "no possible way of determining which portions of the
collected leachate were generated from particular shipments of
the underlying waste."  Id.2

The "Contained In" Principle and Contaminated Media

     The "contained in" principle provides that any non-waste
material that contains a listed hazardous waste must be managed
as if it were a hazardous waste so long as it continues to
contain the listed hazardous waste.3  EPA developed the principle
because media such as soil or ground water do not meet the RCRA
definition of "solid waste."  The definition includes only
"garbage, refuse, sludge .  . . and other discarded material."4
Because the media themselves (e.g. . soil, ground water) are not
enumerated in the definition and often are not considered
"discarded material" (e.g.  . where listed hazardous wastes have
spilled or leaked onto previously uncontaminated ground), such
media are not themselves hazardous wastes.   Thus, the derived-
from and mixture rules may not on their face cover the
contaminated media because these rules directly apply only to
     2 Note that while petitioners' retroactivity claims focused
on management of leachate in the context of the LDR requirements,
the "retroactivity" principle has much broader applicability,
i. e. ,  it is not limited to leachate or any other specific type or
form of waste.  Both untreated wastes and treatment residues are
regulated if managed actively after the effective date of the
hazardous waste listings applicable to the waste.  Moreover, as
discussed above, the retroactivity principle can be applied
outside the scope of" the LDR framework.  Non-LDR requirements may
be the only applicable Subtitle C standards, e.g. .  where active
management of listed wastes occurs after the effective date of
the listing, the generator or owner/operator must comply with at
least some Subtitle C requirements, but not with LDR requirements
unless the wastes are also restricted at that time.

     3 Memorandum, "RCRA Regulatory Status of Contaminated Ground
Water", from Marcia Williams, Director, Office of Solid Waste, to
Patrick Tobin, Director, Waste Management Division, Region IV,
Nov. 13, 1986.

     4 RCRA § 1004(27).

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mixtures of  hazardous  wastes  and  ."solid wastes."  Slip op. at 25-
26, n.14.

     After having  upheld  the  reasonableness of the Agency's
interpretation  on  the  retroactivity of listings, the court had
little trouble  sustaining EPA's  "contained in" principle as
another reasonable interpretation of  the derived-from rule, i.e..
media  such as soil or  ground  water contaminated with listed
hazardous wastes are also presumed to be RCRA hazardous wastes
until  delisted.  The court was swayed by the consistency of this
principle with  the presumption of hazardousness in the derived-
from and mixture rules.   The  court also was persuaded by the fact
that EPA consistently  has applied this policy in delisting
petitions involving contaminated  media.  The court found
statutory support  for  EPA's position  in RCRA § . 3004(e)(3), which
provides a two-year exemption from the land disposal prohibitions
for certain  soil contaminated with hazardous wastes.   The court
reasoned that the  exemption "would of course have been
superfluous  unless contaminated  soil  would otherwise fall within
the terms of the ban."  Id. at 31.

Conclusion

     This decision represents an  enormous victory for the entire
RCRA program.   Although the issues were raised in an LDR context,
the principles  upheld  by  the  court apply equally to other areas
of RCRA.  The decision is very useful precedent for cases where
EPA asserts  its authority to  regulate wastes disposed prior to
being  listed as hazardous and wastes  found in contaminated media.

     Please  call me at FTS-382-3072 if you have questions.

Attachment

cc:  Regional Counsel  Hazardous  Waste Branch Chiefs

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LDR Enforcement Liaisons:

     Joel Blumstein,  Region I,  ORC           335-3440
     Bill Walsh-Rogalski,  Region I,  ORC      835-3334
     David Payne,  Region II,  ORC             264-4942
     Cecil Rodrigues,  Region  III,  ORC        597-4868
     Alvin Lenoir, Region  IV, ORC             257-2641
     John Faletto, Region  V,  ORC             886-6831
     David Polter, Region  VI, ORC             255-2120
     Scott Pemberton,  Region  VII,  ORC        757-2809
     Jonah Staller, Region VIII, ORC         564-7531
     Lorraine Ross, Region VIII, ORC         564-1458
     Mike Hingerty, Region IX,  ORC           454-8636
     Barbara Lither,  Region X,  ORC           399-1073
     Steve Sisk,  NEIC  (Denver)                77-6-5139
     Kenna Yarbrough,  NEIC (Denver)           776-5139
     Karen Johnson, NEIC (Denver)             776-5139
     Chip Landman, OWPE, Federal Facilities
       Task Force (WH-527)                    382-2035
     Jon Jacobs,  OECM-Toxics  (LE-134P)        475-8689

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  >"!!%
        §      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON, D..C. 20460
                                                                  •, .
                               DEC  I I  1990
                                                         OFFICE OF
                                                       GENERAL COUNSEL
MEMORANDUM

SUBJECT:  Court Decision on RCRA  Listing of  Wastes
          from the Production  of  Methyl  Bromide

FROM:     Joseph Freedmai
          Attorney
          Solid Waste and* Emergency
            Response Division  (LE-132S)

TO:       Don R. Clay
          Assistant Administrator
            for Solid Waste and Emergency Response (OS-100)
THRU:     Lisa K. Friedman
          Associate General Counsel
          Solid Waste and Emergency
            Response Division  (LE-1323)

     The U.S. Court of Appeals  for the  D.C.  Circuit recently
upheld the bulk of EPA's regulation  listing  as hazardous wastes
certain wastes (K131 and K132)  from  the production of  methyl
bromine.  Ethyl Corp. v. EPA, No. 90-1004  (Nov.  23, 1990) .   The
court sustained all provisions  of the regulations except for
those that had been stayed by the Agency's earlier administrative
action .

     Ethyl had argued, among other things, that it recycled its
reactor process waste stream and was therefore exempt  from  the
regulation.  Although EPA had rejected  that  argument in the
preamble to the final rule, additional  information fron Ethyl
prompted the Agency to stay the rule with  respect to that
particular waste stream at Ethyl's facility,  in order  to
reconsider Ethyl's process.  The court  remanded this narrow
portion of the rule to EPA.

     The import of the court's  decision is that the listing of
K131 and 132 wastes is effective and enforceable except for the
wastewater (if it is indeed a waste) from  the reactor  at Ethyl's
facility in Magnolia, Arkansas.  The Agency  has committed to
reevaluatina that waste stream.  After  gathering and evaluating
                                                            Printed on Recycled Paper

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any necessary data, EPA should then determine whether or not the
stream is subject to Subtitle C regulation.  We will be glad to
cooperate in that effort.

     A copy of the court's opinion is attached.  We will be glad
to respond to any questions.

Attachment

cc:  Regional Counsels, Regions I - X
     RCRA Branch Chiefs, Office of Regional Counsel,
       Regions I-X
     Bruce Diamond
     Sylvia Lowrance
     Kathie Stein

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OE AND O6C RCRA HEADQUARTERS CONTACTS

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                                                                 MARCH 8, 1991



OFFICE OF BXPORCBfBirr      (LE-134S)                             FAX 382-3069



FCRA DIVISION








Kathie Stein, Associate Enforcement Counsel  	382-4326... .3105 MALL



Susan  O'Keefe, Acting Deputy Associate Enforcement Counsel....382-4326... .3105 MALL



Joanne Callahan, Attorney,  Region X	382-3118	32190 MALL



David  Clay, Attorney, Pegion IV	382-3075	3225 MALL



Elliott Gilberg, Attorney (Detail) 	382-2819	3109 MALL



Gary Jonesi, Attorney,  Region V	382-3072	3219JMALL



Mind N&fton, Attorney,  Region I	382-3096	3105C MALL



David  Nielsen, Attorney,  Regions VI & IX	475-7714	3105C MALL



Betty  Ojala, Attorney,  (Detail)	382-3087	3225-2 MALL



Joseph Schive, Attorney,  Regions III	382-3068	3225H A



Jon SUberman, Attorney,  Regions II & VII	382-3082	3219E MALL



Larry  Sperling, Attorney, Region VIII	382-4327	3105 MALL



Linda  Thompson, Division  Secretary	382-4326... .3105 MALL



Janice Dunmore, Secretary	475-7462... .3219 MALL



Tanya  Tayttron, Stay-in-School 	475-7462	3219 MALL



* Regions Denote Regional Liasons

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                      OGC RCRA ASSIGNMENTS
                          FEBRUARY 1991
                       Telephone Listings
Attorneys

Kaneen, Christina
  (Assistant General

Averback, Jonathan

Beisswenger, Ton

Freedaan, Joseph

Gordon, Andrew

Grant, Brian

Hill, Randolph

Kenkeremath, Nandan

Openchowski, Charles

Ryan, Anne

Siciliano, Carol Ann

Tyner, Lee

Wehling, Carrie

Witt, Richard

Wyeth, George
Counsel)
Phone No.

382-7725


382-7718

475-7081

382-7710

245-3596

382-7712

382-7629

382-7699

245-4137

245-4139

475-8653

245-3710

382-7720

382-7715

382-7726

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                      OGC RCRA ASSIGNMENTS        February 1991

SUBTITLE C - HAZARDOUS WASTE PROGRAM

I.   IDENTIFICATION OF HAZARDOUS WASTE
     (Section 3001, 40 CFR Part 261)

     Definition of solid waste	 Silvernan
          When does waste become subject
               to regulations	 Silvernan
     Recycling	i... Silvernan
     Exemptions:  Domestic Sewage	 Hill
                  NPDES discharges	 Hill
                  Radioactive wastes	Wyeth

     Definition of hazardous waste	 Freednan
          Mixture rule	 Freedman
          Derived - from rule	 Freedman
          Products that become wastes	 Freedman
          Pesticides as wastes	 Gordon
          Exemptions:  Household wastes	 Beisswenger
                       Resource recovery
                       (municipal waste ash)	 Beisswenger
                       Waste samples	 Tyner
                       Treatability studies	Tyner
                       Mining wastes	Hill
                       Utility wastes	 Kaneen
                       Oil and gas wastes	 .. Hill

     Small Quantity Generators (§261.5)	 Averback

     Empty containers (§261.7)	 Averback/Ryan

     Listings of hazardous waste
          Criteria for listing	 Freedman
     New Listing
          Woodpreserving..	 Silverman
          Chlorinated toluene 	 Beisswenger
          Petroleum refining	 Witt
          Others	 Freedman

     -De minimis" rule	 Wehling

     Used Oil Listing (Sec. 3014)	 Hill

     Delisting
          General Procedures	Tyner
          Individual delisting.	 Tyner

     Hazardous Waste Characteristics
          Extraction Procedure toxicity
               test	 Freedman

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                                2

     Revised toxicity characteristic (and toxicity
               characteristic leaching procedure,
                    "TCLP")	Wehling

          Other characteristics	  Freedman

     Analytical methods ("SW-846")	  Grant

II.  STANDARDS FOR GENERATORS OF HAZARDOUS WASTES
     (Section 3002 40 CFR Part 262)

     Generator duties	  Averback
          Testing requirements	  Averback

          Packaging, labeling	  Averback

          Manifest system	  Averback

          Exception reports	  Averback

          90-day accumulation	  Averback

          Satellite storage	  Averback

          Small quantity generators	  Averback

          International exports	  Siciliano

     Waste minimization	  Beisswenger

III. STANDARDS FOR HAZARDOUS WASTE TREATMENT, STORAGE AND
          DISPOSAL FACILITIES
     (Sections 3004, 3015, 40 CFR Part 263)

     Manifest system	Averback

     Department of Transportation regulations....  Averback

     International exports	  Siciliano

IV.  STANDARDS FOR HAZARDOUS WASTE TREATMENT, STORAGE AND
          DISPOSAL FACILITIES
     (Sections 3004, 3015, 40 CFR Parts 264,265)

     General Issues	  Kaneen

     Administrative Standards (Parts 264 and
          265, Subparts A-E)	  Kaneen

     Manifest system, reporting	  Averback

     Closure and Post-closure Care	  Beisswenger

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          Delayed closure	 Tyner

     Alternate closure.....	Beisswenger

Financial Responsibility
     Cost estimates for closure,
          post-closure	Averback
     Financial mechanisms	Averback
     Liability insurance  for third-party
          injury.	Averback
     Corrective action  	 Averback

Land disposal facilities  (landfills,
     surface impoundments, waste piles,
     land treatment)
          Ground-water monitoring	 Ryan
          List of .constituents  (Appendix IX)	Ryan
          Statistical test	 Ryan
          Alternate concentration limits	 Ryan
          Technical Enforcement Guidance
               Document	 Ryan
          Land Treatment	
          Minimum Technological Requirements	Tyner
               Double liners, leachate
               collection systems (§3004(o),
               3015)	 Tyner
               Surface impoundment retrofit
               requirement  (Section 3005 (j)	Tyner
               Liquids in landfills	 Tyner/
                                                  Kenkeremath
Storage Facilities  (containers, tanks)
     Containers	 Tyner
     Tanks  (above groundand under
          ground)	 Tyner
          Hastewater treatment tank
               exemption	 Hill
          Elementary neutralization
               tank exemption	 Hill

Treatment facilities
     Incinerators	 Silverman
     Burning of hazardous waste fuels
          ("boilers")	 Silverman
     Thermal treatment - see miscellaneous
          facilities
     Cement kilns	 Silverman

     Totally enclosed treatment
          facilities exemption	 Averback
     Treatment in tanks at 90-day
          accumulation facilities	Averback

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Miscellaneous facilities
     Subpart X standards for
          miscellaneous units	Tyner
     Thermal treatment	 Tyner
     Chemical, physical, biological
          treatment	Tyner
     Research, development and
          demonstration facilities	Tyner
     Experimental facilities
          (Subpart Y)	Tyner

Air emissions	 Grant

Location Standards	Openchowski
Corrective actions for solid waste
     management units
          General issues	Wehling
          Clean-up of off-site releases	Wehling
          POTW' s	 Hill
          Underground injection wells	 Kenkeremath
Standards and Procedures for Sec. 3008(h)
               orders	Wehling

Application of standards to special waste
     categories
          Used oil	 Hill
          Mining waste	Hill
          Oil & gas waste	Hill
          Utility wastes	 Kaneen
          Mixed waste (radioactive and
               hazardous wastes)	Wyeth
          Municipal incinerator ash	 Wehling
          Pesticides	Gordon
          Fluff (appliance shredding)	 Beisswenger

Domestic sewage study (Sec. 3018)	Hill

Exposure assessments (Sec. 3019)	

V.   LAND DISPOSAL RESTRICTIONS PROGRAM
     (Sections 3004
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     Underground injection wells	 Kenkeremath
     Soil and debris from CERCLA and RCRA
          clean-ups	 Silver man
                                                  Kenkeremath
     Definition of "placement in a unit"	Wehling

VI.  PERMITS AND INTERIM STATUS FOR FACILITIES THAT TREAT
     STORE OR DISPOSE OF HAZARDOUS WASTE (Section 3005,
     40 CFR Parts 124, 270)

     General issues	Grant

     Facilities needing permits
          Pre-1980 facilities ("inactive"
               facilities)	 Silverman
          Post-closure permits	Grant/Wehling
          Permits by rule:
               UIC	 Kenkeremath
               POTW's	 Hill
               Ocean dumping	

     Permit application requirements
          Part A	Grant
          Part B (consult attorney responsible
               for subject matter area)

     Permit conditions
          General	 Grant
          Authority to add conditions
               ("omnibus provision")	 Grant

     Statutory deadlines for permit issuance	Grant

     Permits modifications	 Grant

     Permits for mobile treatment units
          ("MTU's")	Grant/Wehling

     Research, development and demonstration
          permits	,	Grant

     Interim status
          General issues	 Grant
          Qualifying for interim status	Grant
          Newly-regulated facilities	 Grant
          Expansions during interim status	Grant
          Termination of interim status	 Grant

     Loss of interim status for failure to
          submit permit application	 Grant

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VII. STATE AUTHORIZATION (Section 3006,  40 CFR Part 271)

     General issues	

     Program revisions	

     HSWA rules (applicability of RCRA rules in
          authorized states)	
     Public availability of information	

     Cluster rule and deadlines	

     Capacity and consistency issues	  Freedman

     Withdrawal of state programs	

     Indian issues	  Hill

VIII INFORMATION GATHERING, INSPECTION AND ENFORCEMENT
     (Sections 3007, 3008, 3013,  7002, 7003)

     General enforcement  (Sec. 3008)	  Openchowski

     Information gathering (Sec.  3007)	  Openchowski

     Confidential business information	Openchowski

     Monitoring and analysis  (Sec. 3013)	  Openchowski

     Interim status corrective action orders
          (Sec. 3008(h))

               Standards	  Hehling
               Procedures	  Wehling/
                                                  Openchowski

     Citizen suits  (Sec. 7002)	Openchowski

     Imminent and substantial endangerments
          (Sec. 7003)	  Openchowski

     Part 22 procedures for administrative
          orders	Openchowski

SUBTITLE D - SOLID WASTE PROGRAM

     Waste Management Guidelines  (Sec. 1008)	  Gordon

     State solid waste plans  (Sec. 4002,4003)	  Gordon

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     EPA open dumping criteria (Sec. 4004(a),
          Part 257)	Gordon

     Revised open dumping criteria
          (Sec. 4010, Sec. 4005  (c)	Gordon
               Municipal waste landfills	Gordon
               Industrial facilities	
               Financial responsibility	Averback

     Source Separation	Gordon

     State permit programs for revised
          criteria	Gordon

     Citizen suits	Gordon

     EPA enforcement	Gordon

     "Special" waste under Subtitle D
          Mining wastes	Averback
          Oil and gas wastes	 Hill
          Utility wastes	 Kaneen
          Municipal waste combustion ash	 Wehling

     Indian tribes	 Hill

SUBTITLE I - UNDERGROUND STORAGE TANKS*

     Jurisdictional issues	 Tyner

     Notification	 Tyner

     Technical standards	 Tyner

     Financial responsibility	 Averback

     Corrective action	 Tyner

     State Programs	 Tyner

     Entry Authority	 Openchowski

     Enforcement	Openchowski

     Trust Fund	

SUBTITLE J - (MEDICAL WASTE)

     Regulations	 Wehling

*Note: Earl Salo, Assistant General Counsel for CERCLA,
       (382-7698) supervises all UST issues.

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                                8

     Enforcement	 Openchowski

FEDERAL FACILITIES

     General issues on compliance at Federal
          facilities	Wyeth

     Inventory of Federal Hazardous Waste
          Facilities (Sec. 3016)	 Wyeth

     Applicability of State, Federal
          Requirements (Sec. 6001)	 Wyeth

     Applicability of Section 1008
          Guidelines for Solid Waste (Sec. 6004). Gordon

     Compliance at EPA Facilities	 Kenkeremath

     Procurement Guidelines for Recycled
          Materials (Sec. 6002)	Witt

INTEGRATION WITH OTHER ACTS

     PCB Program (TSCA)	 Kenkeremath

     Atomic Energy Act	 Wyeth

     MARPOL Program (Coast Guard)	Averback/
                                                  Openchowski

     UIC Program (SDWA)	 Kenkeremath

     UMTRCA (radioactive waste)	Wyeth

     SMCRA (surface mining)	 Hill

     FIFRA (pesticides)	Ryan

     Super fund	Wehling

     CWA
          POTW' s	 Hill
          Domestic Sewage	Hill
     Ocean Dumping	 Hill

JUDICIAL REVIEW

     General Judicial Review (Sec. 7006)	Kaneen

     Citizen Suits (Sec. 7002)	Openchowski

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