vvEPA
United Suies
6 nvif onmenm
Agency
O«.ce o<
Solid Waste ma
Emergency flesoonte
DfRECTIVE NUMBER:
9610.11
TITLE: USV/LUS? ENFORCEMENT PROCEDURES
GUIDANCE I'lANUAL
APPROVAL DATE: 7/17/90
EFFECTIVE DATE: 7/17/90
ORIGINATING OFFICE:
0 FINAL
G DRAFT
STATUS:
Office of Underground
Storage Tanks (OUST)
REFERENCE (other documents):
OSWER OSWER
DIRECTIVE DIRECTIVE L
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
o
WASHINGTON. D.C. 20460
OFFICE OF
Mir- i innn SOLID WASTE AND EMERGENCY RESPONSE
AUfa 7 1990
OSWER Directive 9610.11
MEMORANDUM
SUBJECT: Final UST/LUST Enforcement Procedures Guidance Manual
FROM: Ronald Brand, Director
Office of Underground Storage Tanks
TO: Waste Management Division Directors,
Regions I-1II, V-IX
Water Division Directors, Regions IV, X
As you know, promoting compliance with the LIST regulations
is a crucial element in implementing the national UST progr.am .
Most States are actively conducting compliance and enforcement
activities. However, there has been recent concern that EPA
needs to increase its Federal enforcement presence, particularly
for enforcing against violations of the release detection
requirements .
The attached "LST/LUST Enforcement Procedures Guidance
Manual" provides guidance to Regional personnel on taking
enforcement actions against UST owner/operators who violate the
Federal UST regulations. This version incorporates the comments
that were received on the draft manual. The manual is intended
to accompany the upcoming "U.S. EPA Penalty Guidance for
Violations of UST Regulations" (OSWER Directive 9601.12).
The manual provides an overview of the UST/ LI'S 1' enforcement
program and discusses situations in which Regional enforcement
i expenses are warranted. It also discusses the factors to be
considered 111 determining the appropriate level of enforcement
riot. ion, and describes the range of enforcement responses that may
be taken. The manual also provides more detailed guidance on
issuing 90U6 compliance orders and 9U(JJ(h) corrective action
oiiiois, and on .initiating judicial action.
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The enforcement techniques described in the manual are those
that are presently being used in the Regions. Because the UST
technical regulations have only been in effect for a relatively
short period of time, UST enforcement staff have not had the
opportunity to develop different enforcement techniques.
However, as the Regional experience in enforcing against
violations increase, processes will be improved and refined over
time. Therefore, EPA will review and modify this guidance each
year, as appropriate, to keep it current with new information and
changes to the program.
Attachment
cc: UST Regional Program Managers
UST Regional Attorneys
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vvEPA
Untied Stales
Environmental Protection
Agency
Oflice of
Solid Waste and
Emergency Response
DfRECTIVE NUMBER:
9610.11
TITLE: UST/LUST ENFORCEMENT PROCEDURES
GUIDANCE MANUAL
APPROVAL DATE: 7/17/90
EFFECTIVE DATE: 7/17/90
ORIGINATING OFFICE:
G FINAL
D DRAFT
STATUS:
Office of Underground
Storage Tanks (OUST)
REFERENCE (other documents):
"S WER OS WER OS WER
DIRECTIVE DIRECTIVE L
-------
oiaics tnvironmefiiai rroieciion Agency
Washington. DC 20460
OSWER Directive Initiation Request
I. Directive Number
9610.11
2. Originator Information
Name of Contact Person
Louis M. Williams
Mail Code jOffice
OS-420 I OSWER/OUST
Telephone Code
382-7970
3 Title
UST/LUST Enforcement Procedures Guidance Manual
4 Summary of Directive (include bnef statement of purpose)
Provides guidance to EPA Regional enforcement personnel on taking enforcement actions
against UST owner/operators who violate the Federal UST requirements.
5. Keywords
underground storage tanks, enforcement
6e Does This Directive Supersede Previous Directive^)1
b. Does It Supplement Previous Oirective(s)''
x No
Yes What directive (number, title)
Yes What directive (number, title)
7 Draft Level
A - Signed by AA/DAA
x B - Signed by Office Director
C - For Review & Comment
0 - In Development
8. Document to be distributed to States by Headquarters?
Yes
X
No
This Request Meets OSWER Directives System Format Standards.
9 Signature of Lead Office Directives Coordinator /•
Beverly Thomas, OUST Directives
i
Coordinator
10 Name and Title of Approving Official
S? ^^?X_ £ ^~<~s^~ £1*^,*^*
Date
Date
7/7/7*
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER 0
VE DIRECTIVE DIRECTIVE DIRECTIVE
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OSWER Directive 9610.11
UST/LUST ENFORCEMENT PROCEDURES
GUIDANCE MANUAL
July 1990
U.S. Environmental Protection Agency
Office of Underground Storage Tanks
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OSWER Directive 9610.11
NOTICE
The procedures set forth in this document are intended solely lor the guidance of U.S. EPA
Regional enforcement staff. They are not intended, and cannot be relied on, to create rights,
substantive or procedural, enforceable by any party in litigation with the United States. The U.S. EPA
reserves its right to act at variance with this guidance and to change it at any time without public notice.
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OSWER Directive 9610.11
TABLE OF CONTENTS
Page
CHAPTER 1. OVERVIEW OF UST/LUST ENFORCEMENT PROGRAM
1.1 Purpose of the Manual 1
1.2 Overview of the UST/LUST Enforcement Program 2
1.3 Regulations of USTs under Subtitle I 4
1.3.1 Summary of the Technical Standards Rule 4
1.3.2 Summary of the Financial Responsibility Rule 6
1.4 Release Response Program Under Subtitle I 8
1.4.1 Release Response Authorities 8
1.4.2 State Role in the LUST Trust Program 9
CHAPTER 2. SITUATIONS APPROPRIATE TO REGIONAL
ENFORCEMENT ACTIONS
2.1 Actions Taken in States With Inadequate Enforcement Authority 10
2.2 Actions Taken in Approved States 10
2.2.1 Actions Taken in States Without
Administrative Penalty Authority 11
2.2.2 Cooperative Actions Against Violators 11
2.2.3 Actions Taken in Response to a Major
Public Health or Environmental Emergency 12
2.3 Actions Taken on Indian Lands 12
2.4 Actions Resulting From Program Overlap 12
CHAPTER 3. ENFORCEMENT CASE DEVELOPMENT
3.1 Overview of Enforcement Tools 14
3.2 Factors to Consider in Determining Response Level 14
3.2.1 Severity of the Violation 15
3.2.2 Circumstances of the Violation 15
3.2.3 Information About the Owner/Operator 16
3.3 Enforcement Actions for Violations of the Technical Regulations 16
3.3.1 Information Request 16
3.3.2 Warning Letter/Notice of Violation (NOV) 17
3.3.3 Administrative Compliance Order 18
3.3.4 Judicial Actions 19
iii
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OSWER Directive 9610.11
TABLE OF CONTENTS
(Continued)
3.4 Enforcement Actions for Releases Not Reported by An Owner/Operator 19
3.4.1 Information Request Letter/On-Site Inspection 20
3.4.2 Notice of Violation 20
3.4.3 Corrective Action Order 21
3.5 Enforcement Actions for Owner/Operator-Reported Releases 21
3.5.1 Acknowledgement/Information Request Letter 24
3.5.2 Corrective Action Letter 24
3.5.3 Compliance Order 24
3.6 Alternative Enforcement Tools 24
3.6.1 Show Cause Meetings 24
3.6.2 Informal Settlement Conference 25
CHAPTER 4. PROCEDURES FOR SECTION 9006 COMPLIANCE ORDERS
4.1 Framework of the Administrative Process 26
4.1.1 Statutory and Regulatory Framework 26
4.1.2 U.S. EPA Roles in the Administrative Process 27
4.2 Overview of the Administrative Process 27
4.3 Complaint Preparation and Filing 28
4.4 Pre-hearing Stage 29
4.4.1 Procedural Requirements for the Pre-hearing Stage 29
4.4.2 Answer to the Complaint 30
4.4.3 Pre-hearing Motions 30
4.4.4 Default Orders 31
4.4.5 Pre-hearing Conference 32
4.5 Settlement 33
4.5.1 Procedures for Negotiating a Seniement 33
4.5.2 Preparing a Consent Order 33
4.6 Hearing Stage 34
4.6.1 Admissable Evidence 34
4.6.2 Objections and Rulings 35
4.6.3 Transcript of the Hearing 35
4.6.4 Proposed Findings, Conclusions, and Orders 35
4.6.5 Initial Decision 35
4.6.6 Appeals of Interlocutory Orders or Rulings 36
IV
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OSWER Directive 9610.11
TABLE OF CONTENTS
(Continued)
Page
4.7 Post-hearing Stage 36
4.7.1 Appeal of Initial Decision 36
4.7.2 Final Order 37
4.8 Cost Recovery Actions 37
CHAPTER 5. PROCEDURES FOR SECTION 9003(H) CORRECTIVE ACTION ORDERS
5.1 Framework of the Administrative Process 40
5.1.1 Statutory Background 40
5.1.2 Regulations Governing Administrative Actions 40
5.1.3 The Agency's Roles in the Administrative Process 41
5.2 Overview of the Administrative Process 41
5.3 Preparation and Filing of the Initial Order 42
5.3.1 Elements of the Order 42
5.3.2 The Administrative Record 42
5.3.3 Ex Pane Discussions 42
5.4 Pre-hearing Stage 43
5.4.1 Request for Hearing 43
5.4.2 Pre-hearing Submissions 43
5.5 Settlement Conference 44
5.6 Hearing Stage 44
5.6.1 Hearing Procedures 44
5.6.2 Presiding Officer's Recommendations 45
5.6.3 Final Order 45
CHAPTER 6. PROCEDURES FOR JUDICIAL ENFORCEMENT
6.1 Civil Judicial Actions 46
6.1.1 Use of Judicial Compliance Orders and Penalties 46
6.1.2 Procedures for Filing Judicial Actions 46
6.2 Injunctive Actions 48
6.2.1 Temporary Restraining Orders 48
6.2.2 Preliminary Injunctions 48
6.2.3 Permanent Injunctions 49
6.3 Settlement Agreements 49
6.4 Criminal Actions 50
BIBLIOGRAPHY
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OSWER Directive 9610.11
CHAPTER 1. OVERVIEW OF THE UST/LUST ENFORCEMENT PROGRAM
The Hazardous and Solid Waste Amendments (HSWA) of 1984 added Subtitle I to the Resource
Conservation and Recovery Act (RCRA). Subtitle I established a national regulatory program for the
control of underground storage tank (UST) systems used to store liquid petroleum or chemicals defined
as hazardous substances.1 In addition, the Superfund Amendments and Reauthorization Act of 1986
(SARA) established a response program for releases of petroleum from USTs and created the leaking
underground storage tank (LUST) Trust Fund. In both the regulatory and release response programs,
the U.S. Environmental Protection Agency (the U.S. EPA, or the Agency) is encouraging States to
develop and implement their own programs in lieu of the Federal program, provided that a State has
regulations that are no less stringent than the Federal regulations and can take adequate enforcement
actions. States that have fulfilled the State program approval criteria will have primary responsibility for
enforcing against owner/operators suspected of violating UST requirements (although, prior to approval,
States may already be taking actions against violators of the existing State regulations). Furthermore,
States may respond to releases and may access the LUST Trust Fund provided they have
demonstrated sufficient capability and have negotiated Cooperative Agreements with the U.S. EPA. In
sc/ne cases, however, States may require assistance from the U.S. EPA in taking enforcement actions.
1.1 PURPOSE OF THE MANUAL
The purpose of this manual is to provide guidance for enforcement personnel on undertaking
actions in response to violations of UST technical regulations and corrective action requirements. It is
intended to accompany the draft U.S. EPA Penalty Guidance for Violations of UST Regulations, which
provides guidance for U.S. EPA Regional enforcement staff on calculating administrative penalties to be
assessed against violators of the UST regulations.
This manual is intended primarily for use by U.S. EPA Regional offices that need to take
enforcement actions in States with or without approved programs. However, it may also be used by
State program officials who wish to develop State enforcement programs similar to the Federal program.
The manual generally deals with violations and releases involving USTs containing petroleum, although
USTs containing hazardous substances are briefly addressed in Chapter 2. It is organized as follows:
• Chapter 1. Overview of the UST/LUST Enforcement Program, provides
background information on the UST/LUST program philosophy, including the
franchise management approach. It also provides summaries of the UST
regulations under Subtitle I and describes the LUST response program.
• Chapter 2. Situations Appropriate to Regional Enforcement Actions, discusses
situations in which U.S. EPA Regional enforcement response would be
warranted, including actions in States without necessary enforcement authority
and on Indian Lands. The chapter also addresses the issue of program
overlap.
1 Section 9001(1) of RCRA defines underground storage tanks as 'any one or combination of
tanks (including underground pipes connected thereto) which is used to contain an accumulation of
regulated substances, and the volume of which (including the volumes of the underground pipes
connected thereto) is 10 percent or more beneath the surface of the ground.' Regulated substances
include CERCLA hazardous substances (other than RCRA hazardous wastes regulated under Subtitle
C) plus petroleum, including crude oil and used oil.
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OSWER Directive 9610.11
• Chapter 3. Enforcement Case Development, discusses the factors to be
considered in determining the appropriate level of enforcement action, identifies
the different levels of action that enforcement personnel may take in response
to a violation, and describes the procedures for various initial enforcement
actions that may be taken in response to a violation or a release.
• Chapter 4. Procedures for Section 9006 Compliance Orders, discusses in detail
the enforcement process for issuing Section 9006 administrative compliance
orders, and provides guidance on complaint preparation, processing answers,
and elements of the pre-hearing, hearing, and post-hearing stages of the
administrative Iftkjation/adjudicatory process.
• Chapter 5. Procedures for Section 9003m) Corrective Action Orders, discusses
in detail the process for issuing Section 9003(h) corrective action orders,
provides guidance on order preparation, and describes elements of the pre-
hearing stage, settlement conference, and hearing stage of the administrative
litigation/adjudicatory process.
• Chapter 6. Procedures for Judicial Enforcement, discusses the judicial
enforcement process and explains the judicial actions that may be used for
violations of UST requirements, including temporary restraining orders,
injunctions, and judicial penalties.
1.2 OVERVIEW OF THE UST/LUST ENFORCEMENT PROGRAM
Because of the size and nature of the regulated community, the U.S. EPA has developed a non-
traditional regulatory approach in which the national UST program is implemented primarily at the State
and local levels. Presently, there are about two million regulated UST systems in the country at over
700,000 facilities. Owners and operators of these facilities include large oil companies; independent
marketers and gasoline stations; Federal, State, and local governments; and other entities such as
trucking fleets and bus companies that use petroleum in their businesses. A significant portion of this
diverse regulated community includes the small, independently-operated service stations and
convenience stores that are accustomed to operating with minimal environmental regulation. Unlike the
larger businesses, these smaller businesses may have difficulty with compliance because of their limited
resources and knowledge of the Federal regulations. Furthermore, the regulation of the UST population
is complicated by the wide array of regulations that address the life cycle of a tank from installation to
closure.
To handle the environmental threat posed by this large and diverse community, the Agency has
adopted the franchise* management approach, in which U.S. EPA Headquarters and the Regions, as
franchisers,' support State and local programs, the franchisees.* The Agency believes that because
State and local agencies have greater interaction with the regulated UST facilities, they are best able to
provide the UST population with the technical assistance and attention necessary to ensure compliance.
In addition, State and local agencies are better situated to assess the needs of the regulated
community, respond to owner/operators, and create a visible presence in the regulated community.
Furthermore, States have at their disposal a number of effective regulatory mechanisms (such as
building permits, fire codes, and some informal enforcement tools) that are not readily available to the
Agency.
To implement the franchise approach,* U.S. EPA's Office of Underground Storage Tanks (OUST)
is encouraging States to seek approval for administering their own UST/LUST programs in lieu of the
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OSWER Directive 9610.11
Federal program. The Agency's regulations for State program approval set forth at 40 CFR 281 specify
the requirements that a State must fulfill for approval to administer its UST program (see also the State
Program Approval Handbook).2 In addition, States are authorized to respond to releases under
Section 9003(h)(7) of RCRA provided that they demonstrate capabilities to carry out these actions and
enter into Cooperative Agreements with the U.S. EPA.
An important component of an approved UST program is the State's ability to take 'adequate
enforcement* responses against owner/operators found to be out of compliance with the regulations.
Many State and local programs have already developed enforcement programs and have achieved high
levels of compliance by providing information and technical assistance to owner/operators in order to
prevent violations, and by carrying out informal enforcement responses when violations do occur. Even
though they may not yet have program approval, some States already have regulations similar to the
Federal regulations (or may have broader pollution control statutes), and are taking formal enforcement
actions against violations of these regulations (or statutes). Furthermore, States that do not have their
own regulations may have transition agreements that allow them to assist the Agency in taking actions
against violators of the Federal regulations.
Enforcement actions taken by States, however, will not always be sufficient to compel compliance.
Thus, although the U.S. EPA encourages States to develop and undertake their own formal enforcement
programs, there will be some situations in which it may be necessary to transfer the case to the U.S.
EPA Regional office. In general, these situations fall into two program areas: (1) release response, and
(2) regulatory. The specific situations under which this may occur are discussed in Chapter 2,
•Situations Appropriate to Regional Enforcement Actions.'
• In responding to releases, Federal enforcement actions will be governed by the Agency's
Guidance for Conducting Federal-Lead UST Corrective Actions (OSWER Directive 9360.0-16A, June
1988).3 This guidance specifies three conditions that must be present in an UST release situation in
order for Federal enforcement actions to be appropriate: (1) the release poses a major public health or
environmental emergency; (2) the State or the owner/operator is unable to respond; and (3) the State
has requested assistance from the U.S. EPA.
In the regulatory program, it may also be necessary at times for the Agency to take enforcement
actions in States. For example, in the early stages of the franchise program, States will be in the
process of developing authorities and regulations that are no less extensive and stringent than the
Federal regulations. During this developmental period, however, a State may discover a violation for
which it does not yet have the appropriate enforcement authority. In such a situation, the State,
perhaps after taking steps to encourage the owner/operator to come into compliance, may wish to refer
the case to the U.S. EPA. The Agency may also get involved in a State enforcement case if it appears
that the case could establish a national legal precedent. In addition, a State may refer a case to the
U.S. EPA because the case is politically sensitive in that State (e.g., if the owner/operator is a major
business in that State or is a Federal facility). Because the U.S. EPA has limited resources for taking
enforcement actions, however, the Agency will use discretion in taking over cases referred from States.
Furthermore, when the Agency does take enforcement action in a State, it must coordinate activities
2 State Program Approval Regulations, 40 CFR Part 281 (promulgated at 53 FR 37212-47,
September 23, 1988) and State Program Approval Handbook OSWER Directive 9650.8, March 1989.
3 On Indian Lands, however, Federal actions will be governed by Interim Guidance for Conducting
Federal-Lead UST Corrective Actions for Releases of Petroleum on Indian Lands (OSWER Directive
9610.9, July 1989).
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OSWER Directive 9610.11
with the State in order to avoid possible duplication, to present a uniform approach to LIST
owner/operators, and to maintain State cooperation.
The specific procedures for initiating and accepting a referral will vary from State to State. Each
State/Federal enforcement agreement should specify the process for case referral (see U.S EPA's
•Policy Framework for State/EPA Enforcement Agreements,' Office of Enforcement, August 1986). Once
a case is referred, however, Regional enforcement personnel should keep the State informed of the
status of the case. The U.S. EPA's 'Policy Framework for State/EPA Enforcement Agreements' identifies
several ways in which the Agency can maintain State presence in a case, including:
• Taking joint State/Federal action, particularly where a State has referred a case
because it lacks the necessary authorities;
• Using State inspection or other data in developing the case;
Arranging for division of penalties with the State (if legally permissible);
• Involving the State in creative settlements and in case development;
• Issuing joint press releases and sharing credit with the State; and
• Keeping States continually apprised of events.
1.3 REGULATIONS OF USTS UNDER SUBTITLE I
Pursuant to Section 9003 of Subtitle I, the U.S. EPA established requirements for leak detection,
leak prevention, corrective action, and financial responsibility for USTs. These requirements were
finalized in two separate U.S. EPA rules: the UST technical standards and financial responsibility
rules.4 The discussions that follow summarize each rule. The purpose of these two rules is to reduce
the number of releases of petroleum and hazardous substances from USTs, minimize the contamination
of soil and ground water caused by such releases, and ensure adequate cleanup of contamination.
The requirements in these rules replaced the Interim Prohibition requirements for non-deferred tanks,
which prohibited the installation of new unprotected or bare steel tanks. However, Interim Prohibition
requirements will remain in effect for those tanks that have been deferred from coverage under the
technical standards rule (deferred tanks are listed in the preamble of the final rule).
1.3.1 Summary of the Technical Standards Rule
The regulations establishing technical standards for USTs emphasize leak prevention, detection,
and corrective action. The rule covers the following five areas:
UST design, construction, installation, and notification;
UST system operation and maintenance;
• Release detection and recordkeeping;
4 The UST Technical Standards Rule, 40 CFR Part 280, Subparts A through G, was promulgated
September 23, 1988 (at 53 FR 37082). The UST Financial Responsibility Rule, 40 CFR Part 280,
Subpart H, was promulgated October 26,1988 (at 53 FR 43326).
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OSWER Directive 9610.11
• Release reporting, investigation, and corrective action; and
• Out-of-service UST systems operation, maintenance, and closure.
For the reader's convenience, the following discussions provide a brief overview of the specific
requirements that an UST owner/operator must follow to be in compliance with the regulations.
However, it should be noted that the following summary is not exhaustive, and many exceptions apply.
Specific requirements are detailed in the regulations.
UST Design. Construction. Installation, and Notification (Suboart B). In the technical standards
rule, specific requirements for both new and existing USTs are addressed separately. For new UST
systems, the design, construction, and performance standards must meet approved industry practices.
New USTs are also required to have corrosion protection for tanks and piping (unless the site is
approved for noncorrosrvity), or be constructed of a non-corrodible material. In addition, tanks must be
equipped to prevent spills and overfills. Finally, all new tank installations must be performed according
to approved industry practices and manufacturer's instructions, and certified by one of the methods
listed in the rule.
The requirements for existing USTs emphasize tank upgrading. Existing USTs must be either
closed, replaced with new tanks, or upgraded to new tank standards by December 22,1998.
Upgrading requirements for existing USTs include the following:
• Retrofitting tanks with corrosion protection or installing interior liners, or both;
• Retrofitting metal piping with corrosion protection; and
• Installing spill and overfill prevention equipment.
Notification requirements apply to both new and existing USTs. Under the rule, the UST
owner/operator is required to report the following information to the implementing agency: tank type,
location, age, use, and methods of compliance with requirements far installation certification, corrosion
protection, release detection, and financial responsibility. In addition, the owner/operator must notify the
implementing agency if a tank is removed from service or has a change in use.
UST System Operation and Maintenance and Repairs (Suboart C). Operation and maintenance
requirements ensure the proper performance of all USTs and auxiliary equipment through testing and
recordkeeping practices. Requirements under the technical standards rule include proper operation,
maintenance, and inspection of spill and overfill and corrosion protection equipment, as well as
recordkeeping of performance of the equipment listed above. The owner/operator must also be sure
the tank material or lining is compatible with the substance stored in the tank. To ensure that repaired
USTs are operating properly, all UST system repairs must be made according to approved industry
practices. Repairs are prohibited, however, for all metal pipe sections and fittings from which product
has been released; these parts must be replaced. All USTs with repaired or replaced parts are required
to be tightness tested to ensure that the UST system is operating properly.
Release Detection and Recordkeeoing (Suboart D\. An approved method of release detection is
required for all new petroleum tanks and piping at installation, and for all existing tanks and piping,
phased in over a 1- to 5-year period according to the tank's age. New USTs containing hazardous
substances are required to have double-walled tanks and piping with interstitial monitoring for tanks
and piping. Release detection equipment for ajj UST systems must be installed, calibrated, operated,
and maintained in accordance with the manufacturer's instructions. Recordkeeping regulations require
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OSWER Directive 9610.11
the UST owner/operator to maintain records demonstrating the methods of compliance with
requirements for installation, corrosion protection, release detection, maintenance, and repairs. Records
must also be maintained on the performance of release detection and spill and overfill equipment.
Release Reporting. Investigation, and Corrective Action (Suboarts E and F). Release reporting,
investigation, and corrective action requirements are designed to ensure a fast and appropriate
response to all suspected and confirmed releases from USTs. Under the technical standards rule, an
UST owner/operator must report to the implementing agency within 24 hours of any release of regulated
substances at the site or in the surrounding areas, unusual operating condition of the tank or
equipment, monitoring results indicating that a release may have occurred, or spills or overfill.
Suspected releases must be immediately investigated, and the owner/operator is required to begin
corrective action as soon as a release has been confirmed.
Initial release response actions required by the rule include preventing further release of the
regulated substance into the environment, and identifying and mitigating any fire, explosion, and acute
vapor hazards. Within 20 days of release confirmation, the responsible owner/operator is required to
report to the implementing agency on initial abatements steps taken and any resulting data. Within 45
days, the owner/operator must report on the initial site characterization and the free product removal
efforts. If remediation is necessary, the owner/operator will also be required to submit a corrective
action plan for approval by the implementing agency.
Out-of-Service UST System Operation and Maintenance and Closure (Suboart G). An
owner/operator of an UST taken out of service for less than 3 months must continue all operation and
maintenance procedures. If a tank is taken out of service temporarily (i.e., for 3 to 12 months), the
owner/operator must also secure and cap all ancillary equipment and leave vent lines open and
functioning. Any tank that is taken out of service permanently (i.e., for more than 12 months) and does
not meet new tank standards (for example, leak detection, corrosion protection, spill and overfill
protection requirements, etc.) must be upgraded to meet these new tank standards or be permanently
closed. For permanent tank closure, the owner/operator is required to:
• Notify the implementing agency 30 days prior to tank closure;
• Empty and clean the tank;
• Conduct a; site assessment to determine if there has been a release
contaminating the surrounding area, and perform corrective action if necessary;
• Either remove the tank from the ground or fill it with an inert substance; and
Close the tank to all future outside access.
Prior to a change in service (e.g., continued use of an UST system to store a non-regulated substance),
the tank must be emptied and cleaned, and a site assessment must be conducted.
1.3.2 Summary of the Financial Responsibility Rule
The financial responsibility rule requires owner/operators of petroleum USTs to demonstrate
financial assurance of their abilities to undertake corrective action and compensate third parties for
bodily injury and property damage in the event of a petroleum UST release. The final rule covers the
following three areas: (1) level of financial responsibility; (2) financial responsibility mechanisms; and (3)
reporting and recordkeeping. The financial responsibility requirements will be phased in over a 36-
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OSWER Directive 9610.11
month period, based on the number of tanks and ownership classification (e.g., marketer, non-marketer,
or municipality).
Level of Financial Responsibility. Under the final rule, the owner/operator of an UST containing
petroleum is required to demonstrate the following types and amounts of financial assurance:
• Per-occurrence coverage (the potential cost of one leak) - at least $1 million for
retail USTs and $500,000 for non-retail USTs (i.e., USTs not engaged in
petroleum marketing, production, or refining, and that handle less than 10,000
gallons per month).
• Annual aggregate coverage (for all potential releases, depending on the
number of tanks at the site) - $1 million annual coverage for facilities with up to
100 tanks or $2 million annual coverage for facilities with more than 100 tanks.
Owner/operators are required to demonstrate both types of financial assurance. Financial assurance
must be reviewed by the owner/operator, and must be increased, if necessary, whenever new or
additional USTs are acquired or installed.
Financial Responsibility Mechanisms. An UST owner/operator may demonstrate financial
responsibility through use of one, or a combination, of the following mechanisms:5
• Third-Party Assurance Mechanisms - Insurance (including risk-retention group
coverage), guarantee, surety bond, letter of credit, and trust fund;
Financial Test of Self-Insurance - A financial test that proves the owner/operator
(1) has a tangible net worth of at least $10 million and at least ten times the
annual aggregate coverage required, or (2) can pass the financial test for
liability coverage in Subtitle C, Subpart H of RCRA (40 CFR Part 264); and
State Mechanisms - State fund, State assurance program, or other State-
approved mechanism that is at least as stringent and equivalent to mechanisms
listed above.
Reporting and Recordkeeoina. The owner/operator of an UST must maintain copies of the
financial assurance mechanism(s) used to comply with financial responsibility regulations at the UST
site or their place of business. The owner/operator must report evidence of financial responsibility to
the implementing agency in the following situations:
• When new tanks are installed;
• Within 30 days of detecting a known or suspected release;
• If the provider becomes incapable of providing financial assurance, and the
owner/operator is unable to obtain alternative coverage in 30 days;
5 The following combination of mechanisms is not acceptable: financial test for self-insurance and
a guarantee where the financial statements of the owner or operator and the guarantor are
consolidated.
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• If the financial assurance mechanism is cancelled or not renewed by the
provider, and the owner/operator is unable to obtain alternate coverage within
60 days;
• If the owner/operator using a financial test finds that he or she no longer
passes the test, or if the implementing agency makes such a finding; and
• At the explicit request of the implementing agency.
The provider of financial assurance is required to notify the UST owner/operator and implementing
agency of plans to cancel the assurance in order to allow time for the owner/operator to secure
alternate coverage.
1.4 RELEASE RESPONSE PROGRAM UNDER SUBTITLE I
The 1984 HSWA amendments to RCRA, while creating a national regulatory program for USTs
under Subtitle I, did not provide the U.S. EPA with the authority to respond to UST leaks or spills. To
address this need, SARA added RCRA Section 9003(h), which established a program for responding to
petroleum releases from USTs. In addition, Section 522 of SARA amended the Internal Revenue Code
to create the LUST Trust Fund to be used to finance cleanups of releases from petroleum USTs. The
release response program and the LUST Trust Fund are different in nature from the regulatory program
established under Subtitle I. The initial UST program was established and currently operates primarily
as a preventive program, while the LUST program is a response program designed to facilitate the
cleanup of petroleum leaks and spills from USTs.
1.4.1 Release Response Authorities
A fundamental element of the cleanup program established by SARA is the provision of authority
to the Agency, under Section 9003(h), to respond to releases from USTs through enforcement activities,
corrective actions, and cost recovery. These activities may be financed by the LUST Trust Fund, which
was created through a 1/10 of one cent per gallon excise tax on motor fuels that is expected to
generate $500 million in the first 5 years. Specifically, Section 9003(h)(4) enables the Agency (or
States, under Cooperative Agreements with the U.S. EPA) to issue corrective action orders requiring
owner/operators of leaking USTs to carry out corrective action or closure activities. In addition, Section
9003(h)(2) allows the Agency to take corrective action in response to a petroleum release from an UST.
Activities such as exposure assessment, the provision of alternative water supplies, and the relocation of
affected residents, are considered allowable corrective action activities under Section 9003(h)(5). The
U.S. EPA or the State may undertake such corrective action activities using the LUST Trust Fund when
one or more of the following situations exist:
• No person can be found within 90 days (or shorter period as may be necessary
to protect human health and the environment) who is the owner/operator of the
leaking UST and who is capable of carrying out the corrective action properly;
• A situation exists that requires prompt action to protect human health and the
environment;
• Corrective action costs at a facility exceed the required level of financial
responsibility and expenditures from the LUST Trust Fund are necessary to
ensure an effective corrective action; or
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OSWER Directive 9610.11
• The owner/operator has failed or refused to comply with a corrective action or
compliance order under Section 9003 or Section 9006 or with an order of a
State.
The U.S. EPA or the State may also undertake corrective action if the owner/operator has failed to
comply with financial responsibility requirements, provided that the site warrants action according to the
U.S. EPA's or the State's priority system for LUST Trust Fund corrective actions.6 According to Section
9003(h)(11), U.S. EPA and State priority systems must reflect the use of funds at sites where:
• Releases pose the greatest threat to human health and the environment; and
• The State cannot identify a solvent owner or operator of the UST who will
undertake corrective action properly.
Section 9003(h)(6) provides the Agency with the authority to take action against responsible
owner/operators to recover costs incurred by the U.S. EPA or the State while carrying out corrective
action and enforcement activities. In determining the level of cost recovery, the Agency or State may
consider the liability level set forth in the financial responsibility regulations (except where the
owner/operator failed to maintain the required levels of financial responsibility), as well as other factors.
The U.S. EPA's Cost Recovery Policy for the Leaking Underground Storage Tank Trust Fund (OSWER
Directive 9610.10, October 1988) addresses this issue in detail.
1.4.2 State Role In the LUST Trust Program
As with the UST regulatory program, States will play the primary role in implementing the LUST
program in all areas, including enforcement. Under Section 9003(h)(7), States may undertake corrective
action, issue corrective action orders, and recover costs provided that the State has entered into a
Cooperative Agreement with the U.S. EPA. The Agency has issued guidelines governing LUST Trust
Fund Cooperative Agreements (LUST Trust Fund Cooperative Agreement Guidelines. OSWER Directive
9650.10, February 1989). Through these Cooperative Agreements, States are responsible for
establishing site priorities; investigating sites and conducting assessments; pursuing and ordering
corrective actions by responsible parties; determining appropriate technologies for effective action;
conducting cleanups; and pursuing cost recovery. Because most States have Cooperative Agreements
at this time, the U.S. EPA's involvement in enforcement actions in release situations will occur mainly
when States request the Agency's assistance with difficult cases. Since the effective date of the
financial responsibility regulations (January 24,1989), States that enter into Cooperative Agreements
must begin cost sharing with the Federal government. Under the Cooperative Agreement guidelines,
States are expected to pay 10 percent of the total program budget of Cooperative Agreements.
6 'Use of the LUST Trust Fund at Facilities Without Financial Responsibility,' Memorandum from
Ron Brand, OUST, January 24, 1990.
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OSWER Directive 9610.11
CHAPTER 2. SITUATIONS APPROPRIATE TO REGIONAL ENFORCEMENT ACTIONS
Under the national UST program, the U.S. EPA is encouraging States to take primary
responsibility for enforcing their own UST/LUST programs in lieu of the Federal program. The Agency
anticipates that as States continue to expand their enforcement programs, its primary role will be to
provide leadership and assistance to States. However, the Agency has identified several scenarios
where Federal involvement in State enforcement cases may be necessary (FY 1989-FY1990
Compliance and Enforcement Strategy for the Underground Storage Tank Program. OSWER Directive
9610.8, January 1989). This chapter discusses those situations.
2.1 ACTIONS TAKEN IN STATES WITH INADEQUATE ENFORCEMENT AUTHORITY
While many States already have active, comprehensive UST programs, other States may still be in
the process of setting up programs or obtaining new legislation. If a State lacks UST-specific
enforcement authority, it may be necessary at times for the U.S. EPA Regional office to carry out an
enforcement action in that State. For example, the U.S. EPA Regional office and the State may decide
together that the Agency's involvement is necessary to achieve the desired response from the
noncomplying owner/operator. Upon referral from the State, the U.S. EPA will assume enforcement
responsibility when a State requests such assistance from the Agency.
In taking enforcement actions in a State, the Region's level of response will vary depending upon
the State program's level of development and the severity of the violation. For example, if a State is at
the initial stages of program development, the Region may focus its resources on helping the State
develop a State-specific compliance and enforcement program that includes communication and
outreach to educate owner/operators about the Federal regulations (OSWER Directive 9610.8).
However, the Region will maintain the option to take direct enforcement actions in the State, and have
the option of establishing a Federal presence in the State through both informal and formal enforcement
actions. Informal actions (e.g., requests for information) would serve to deter potential violators, and
may provide an example to the State as it builds and improves its UST program.
Regional involvement may also be necessary in a State that has a more developed UST program
but still lacks the enforcement authority applicable to a given violation of the Federal regulations
(OSWER Directive 9610.8). For example, a State may have taken informal responses to compel
compliance (e.g., through warning letters) but may have found that these actions were ineffective. If the
State lacks the authority to undertake more formal enforcement actions, it may then request assistance
from the Agency. In such a case, the Agency may wish to implement the necessary formal enforcement
measures to deter potential violators while encouraging the State to acquire the necessary enforcement
authorities. The Agency may choose, for example, to take over a case where the violation threatens
human health and the environment (e.g., in the case of a release, or a violation of leak detection
requirements). In addition, the Agency will continue to work with the State to build its program
capabilities and resolve enforcement issues.
2.2 ACTIONS TAKEN IN APPROVED STATES
A State that has an approved program may still encounter certain enforcement situations in whicn
U.S. EPA involvement would be beneficial. OUST's compliance and enforcement strategy (OSWER
Directive 9610.8) describes a number of situations in which the U.S. EPA may become involved in an
enforcement case in a State with an approved program. In general, the U.S. EPA may become invofveo
because: (1) the State lacks the authority to assess an administrative penalty; (2) the State requests
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Federal assistance in an enforcement case that involves a Federal facility or other politically sensitive
entity; and (3) the situation involves a major public health or environmental emergency.
2.2.1 Actions Taken In States Without Administrative Penalty Authority
One reason that a State may request the Agency's involvement in an enforcement case is to
assess administrative penalties. The State Program Approval regulations (40 CFR Part 281) require
States to have the authorities necessary to assess civil penalties (up to $5,000 or more per tank per day
for each violation), but do not require States to have authority to issue administrative compliance orders
and assess administrative penalties. Nevertheless, a number of States do have the authority to issue
administrative orders, and have found such orders to be an effective tool for achieving compliance.
Although a State may use administrative orders primarily to compel compliance, it may encounter
violation cases in which it would be appropriate to assess a penalty in conjunction with the order. If the
State UST implementing agency does not have administrative penalty authority, it must petition the
Attorney General's office to assess such administrative penalties. Because this process can be time
consuming, a State may request that the U.S. EPA Regional office assess administrative penalties.
2.2.2 Cooperative Actions Against Violators
Even if a State has sufficient authorities for taking enforcement actions in most of its cases, it still
might request the U.S. EPA to assist the State in enforcing certain cases. For example, a State might
prefer that the Agency become involved in an enforcement action against an owner/operator that is
considered to be economically or politically vital to the State, such as a corporation that employs a
large number of State residents or in multi-state actions.
A State may also request Agency involvement in an enforcement action against a Federal facility.
Should the U.S. EPA be called upon to undertake enforcement action at a Federal facility, the
appropriate guidance may be found in the Federal Facilities Compliance Strategy (also known as the
•Yellow Book'), rather than this manual.7 The 'Yellow Book* establishes the current Agency-wide
approach for handling violations at Federal facilities. According to that document, Federal facilities must
comply with the Federal requirements under most environmental statutes, and also with all applicable
State and local laws and regulations to the same extent as non-Federal entities. If a Federal facility
within a certain State violates environmental statutes or regulations, the State and the Agency may
share certain responsibilities for carrying out enforcement activities.
In the UST program in particular, a State that has received program approval may take the lead in
responding to violations at Federal facilities. However, the U.S. EPA retains the legal authority and
responsibility to enforce Federal law at a Federal facility. The FY1989-FY 1990 Compliance and
Enforcement Strategy for the Underground Storage Tank Program (OSWER Directive 9610.8) sets forth
three situations in which the U.S. EPA may take enforcement actions against a Federal facility: (1) the
State lacks adequate enforcement authorities and capabilities; (2) the State requests the Agency to take
the lead role or cooperate in a joint action; or (3) there are other appropriate circumstances consistent
with the 'Yellow Book.' Arrangements for State and/or U.S. EPA involvement and cooperation in
enforcement efforts at a Federal facility should be clearly outlined in State/Federal enforcement
agreements that can be incorporated into the Cooperative Agreement, or, if the State has an approved
program, in the Memorandum of Agreement between the State and the Agency.
7 Federal Facilities Compliance Strategy. U.S. EPA, Office of Federal Activities, EPA/00 88-001,
November 1988.
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OSWER Directive 9610.11
2.2.3 Actions Taken In Response to a Major Public Health or Environmental Emergency
A State may require U.S. EPA assistance in a case that involves a major public health or
environmental threat or emergency. States, under Cooperative Agreements, will be expected to initiate
and pursue enforcement actions as necessary to compel owner/operators to mitigate releases.
However, as set forth in the Guidance for Conducting Federal-Lead Underground Storage Tank
Corrective Actions (OSWER Directive 9360.0-16, June 1988), Federal-lead enforcement may be
appropriate where: (1) a release from an UST poses a major public health or environmental
emergency; (2) the State can demonstrate lack of capability or authority; and (3) the State requests
Federal assistance for an eligible site.
2.3 ACTIONS TAKEN ON INDIAN LANDS
The Agency's policy for managing any environmental regulatory program on Indian lands is set
forth in the 'EPA Policy for the Administration of Environmental Programs on Indian Reservations'
(November 1984) and the accompanying 'Indian Policy Implementation Guidance.' The fundamental
principle of these documents is that the Agency will pursue the goal of Indian •self-government,' and will
work with Tribal governments on a one-to-one basis as sovereign entities.
Because they are not States, Indian Tribes cannot be approved to operate their programs in lieu
of the Federal program, even though they may have parallel UST programs. Furthermore, States
generally do not have jurisdiction over Indian lands unless the State and the Tribe have such an
agreement. To address the issue of UST releases on Indian lands, the U.S. EPA has developed the
Interim Guidance for Conducting Federal-Lead UST Corrective Actions for Petroleum Releases on Indian
Lands (OSWER Directive 9610.9, July 1989), which discusses situations in which it is appropriate for the
Agency to take action against UST releases on Indian lands. However, no guidance currently exists for
taking enforcement actions on Indian lands in response to violation in the preventative program.
As set forth in the Agency guidance (OSWER Directive 9610.9), Federal-lead involvement in
corrective actions on Indian lands is limited to cases in which (1) there is a serious time critical' threat
to human health and the environment; (2) the Tribe is unable to respond; and (3) the owner/operator is
unable or unwilling to provide an adequate and timely response. It should be noted that the guidance
set forth in the document is directed toward short-term remediation only. Long-term corrective action
guidance will be developed (if necessary) once the Agency has determined the extent of the UST
problem on Indian lands. To assist with this determination and provide Tribes with technical assistance,
the Agency is funding compliance assistance and outreach activity pilot projects in several U.S. EPA
Regions.
In general, the criteria for determining Federal-lead corrective action at a violating UST facility on
Indian lands are broader than those specified for non-Indian facilities. National U.S. EPA policy
encourages direct dialogue and the sharing of technical assistance with Tribal authorities to encourage
the facility to achieve compliance.
2.4 ACTIONS RESULTING FROM PROGRAM OVERLAP
One final area in which Regional enforcement may be required is in response to releases of
hazardous substances from USTs. SARA established a release response program under Section
9003(h) of RCRA and created the LUST Trust Fund for financing cleanups of petroleum UST releases.
However, the response program and the Trust Fund may only be used for petroleum releases.
Although the majority of regulated tanks contain petroleum, about 5 percent contain hazardous
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substances. For this small tank population, responsibility for leaks of hazardous substances and
cleanup of these releases will be decided on a site-specific basis.
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CHAPTER 3. ENFORCEMENT CASE DEVELOPMENT
Under the national UST program, States are encouraged to take the primary responsibility for
responding to violations of the UST requirements. Because of the size and nature of the UST regulated
community, the U.S. EPA is focusing its enforcement efforts on encouraging voluntary compliance
through informal enforcement actions, and is working with States to strengthen their enforcement
programs. However, the Agency does intend to take stricter, more resource-intensive actions when
necessary. Subtitle I of RCRA provides U.S. EPA Regional enforcement personnel with an array of
possible responses for carrying out this enforcement approach. This chapter provides guidance on
determining the appropriate level of enforcement response and describes procedures for taking specific
initial enforcement actions. The more traditional administrative and judicial enforcement actions are
described in Chapters 4, 5, and 6.
3.1 OVERVIEW OF ENFORCEMENT TOOLS
The purpose of any enforcement response is to bring about compliance with the regulations and
to deter future violations, or, in the case of a release, ensure proper corrective action. To encourage
voluntary compliance in the UST community, the least resource-intensive action should be taken first.
Enforcement personnel should then increase the severity of the enforcement action if the lower level of
enforcement fails to achieve the desired response. The following section (Section 3.2) discusses the
factors to be considered in determining the appropriate level of enforcement. Once this level is
determined, the enforcement actions that may then be taken usually fall under one of the following
separate, but often interrelated, tracks: (1) actions taken to achieve compliance (for violations of the
technical regulations); and (2) actions taken to achieve corrective action (when the violation also
involves a release). Sections 3.3, 3.4, and 3.5 describe various enforcement techniques that can be
taken in each of these situations. In addition, Section 3.6 describes alternative enforcement tools that
may be used to achieve quicker resolution of the violation or release situation.
The processes described in this chapter represent some of the enforcement techniques that are
presently being used in the Regions, and should not be considered the only, or the most appropriate,
means of addressing violations. Because the UST technical regulations have only been in effect for a
relatively short period of time, UST enforcement staff have not had the opportunity to develop and
experiment with different enforcement techniques. However, as the Regional experience in enforcing
against UST violations increases, the enforcement processes are expected to be improved and refined
over time. Furthermore, some Regional enforcement personnel may have already developed similar or
more effective means of carrying out these initial enforcement activities. Therefore, this guidance will be
reviewed each year and modified as appropriate, to keep it current with new information and changes
to the program.
3.2 FACTORS TO CONSIDER IN DETERMINING RESPONSE LEVEL
In determining the appropriate enforcement action for any violation of environmental regulations,
enforcement personnel should consider the goals of the 'Agencywide Compliance and Enforcement
Strategy (U.S. EPA, Office of Enforcement, May 1984):
• Achieving compliance with the requirements;
• Equitable treatment of the regulated community;
• Deterrence of future noncompliance; and
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• Effective use of Agency resources.
The level of enforcement required to achieve these goals will vary depending on the severity of the
violation, priorities established between the Regions and the States, and other circumstances of the
case. The selection of the appropriate enforcement response may also be affected by the penalty
policy currently being developed.
The Agency has identified a number of factors to be considered in determining the appropriate
level of response ("Working Principles Underlying EPA's National Compliance/Enforcement Programs,'
November 1983 and 'Strategy Framework for EPA Compliance Programs," U.S. EPA, Office of
Enforcement, May 1984). For cases involving noncompliance with the UST regulations, factors that
should be considered are: (1) the seriousness of the violation; (2) the circumstances of the violation;
and (3) information about the owner/operator. In addition, enforcement personnel should take into
account the likelihood that a response may establish a good or bad precedent. Although not all of the
information required to evaluate these factors will be available at the time that an enforcement response
must be taken, enforcement personnel should attempt to consider these factors to the greatest extent
possible when making their decision. These factors are discussed in more detail below.
3.2.1 Severity of the Violation
Considerations that should be made in determining the severity of the violation include:
• Actual or possible harm - whether the owner/operator's actions resulted in, or
were likely to result in, an UST release;
• Importance to the regulatory program • whether the requirement that was
violated is fundamental to achieving the goals of the UST program. For
example, a violation of leak detection requirements would be considered
serious because the requirements are fundamental to the goal of preventing
releases.
• Availability of data - whether the action involved a violation of any requirement
for recordkeeping or reporting for which the Agency has few other sources.
For example, a violation of the notification requirements would be considered
serious because the notification program is a primary source of information on
UST locations.
In determining the appropriate response for a release that threatens human health or the environment,
additional considerations include: (1) amount of petroleum or hazardous substance potentially or
actually released; (2) toxicity of petroleum or hazardous substance released; (3) sensitivity of the
environment in which the released occurred; and (4) duration of the release.
3.2.2 Circumstances of the Violation
In determining the appropriate level of action for other types of violations, enforcement personnel
should take into account the culpability of the owner/operator (i.e., whether the violation could have
been prevented or whether it was beyond the owner/operator's control). In addition, enforcement
personnel should consider whether the owner/operator made any efforts to identify, report, and correct
the violation, independent of the enforcement response. Such positive reinforcement of 'self-monitoring'
will help encourage voluntary compliance.
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OSWER Directive 9610.11
3.2.3 Information About the Owner/operator
Information about the owner/operator includes the economic benefit of noncompliance accrued
by the owner/operator, the facility's compliance history, the owner/operator's ability to pay, and the size
of the business. If information on these points is available, enforcement personnel should consider
using it in choosing an enforcement response. For example, a history of noncompliance is considered
a negative element, and an owner/operator that has a poor compliance record should be met with
stronger enforcement actions. Certain considerations, such as the economic benefit of noncompliance
and an owner/operator's ability to pay will require further research and are often taken into account
when a penalty is assessed; however, this should not delay action taken by the Region. The burden to
establish an inability to pay is on the owner/operator.
3.3 ENFORCEMENT ACTIONS FOR VIOLATIONS OF THE TECHNICAL REGULATIONS
Under the authorities in RCRA Section 9005 and Section 9006, Agency enforcement personnel
may take the following actions in response to a violation of the technical regulations:8
• Information request letters • to verify an alleged violation;
• Initial responses • to notify the owner/operator and encourage voluntary compliance;
• Administrative actions - to compel compliance through administrative orders; and
• Judicial actions - to compel compliance through judicial orders.
Each of these is discussed below. As previously discussed, the appropriate level of this initial response
will depend upon the circumstances of the case (for example, more serious cases may warrant skipping
the less severe actions). Although most enforcement cases will go through the same general steps
when enforcement responses increase in severity, the Agency's response in an individual case will
depend on the actions already taken by the State (e.g., the Agency may begin directly with an
administrative response if the State has determined that informal actions were ineffective).
3.3.1 Information Request
RCRA Section 9005 (42 U.S.C. §6991 d) authorizes the U.S. EPA to require an UST owner or
operator to furnish information in the context of enforcing the provisions of Subtitle I and its
implementing regulations. Therefore, to obtain additional information on a potential violation of the
technical regulations, the Agency may issue a Section 9005 information request letter to an
owner/operator. In response to such a request, the UST owner/operator must provide U.S. EPA
Regional enforcement personnel with any information that they have requested on the UST system.
The UST owner/operator must also allow the Agency to conduct monitoring or testing, and must
provide Agency personnel with access to all records relating to the tanks. (Thus, in view of the
statutory authority behind these 'requests,' it may be more appropriate to view them as 'demands.')
Monitoring, testing, and record reviews typically provide the Agency with the information necessary to
determine that a violation has, in fact, occurred. In general, collection and documentation of information
may also be necessary to support the development of an enforcement case. The amount and type of
8 Additional authorities for responding to violations may also be found in RCRA Subtitle C and
other statutes, such as the Safe Drinking Water Act, the Toxic Substances Control Act, and the
Federal Water Pollution Control Act.
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OSWER Directive 9610.11
data that must be collected, however, will vary depending on the data collected during the inspection
and any previous follow-up work conducted by the State.
A letter of request for information should be issued in cases where a violation is apparent but
where substantially more evidence is required before an appropriate response can be determined (e.g.,
before deciding to draft an administrative order). A typical information request letter should include the
following information:9
• Identification, citation, and explanation of the request for information;
• The name and telephone number of an Agency contact person;
A deadline for achieving full compliance with the request (e.g., usually 10 to 15
days); and
• A statement indicating that refusal to provide the requested information beyond
the deadline may result in the issuance of an administrative compliance order
or initiation of a civil action, which may include an assessment of civil penalties
of up to $10,000 per tank for each day of violation.
In general, the request for information may be sent by first class mail unless the owner/operator has not
cooperated, in which case it should be sent by certified mail, return receipt requested. In addition, a
copy of the letter should be placed in the case file.
3.3.2 Warning Letter/Notice of Violation (NOV)
Because of the large size of the UST regulated community and the number of owner/operators
unaccustomed to being regulated, the Agency is promoting the use of initial enforcement mechanisms
that encourage voluntary compliance. In particular, enforcement personnel should initially take actions
that serve to notify the owner/operator of the violation, advise what actions are needed to correct the
situation, provide a deadline for compliance, and indicate more stringent actions that may be taken if he
or she does not respond. Notifications such as warning letters and NOVs are often used to achieve
these objectives. Although these notifications are not required prior to taking more formal actions, they
do serve as documented evidence of contact with the owner/operator and may be used later to support
more severe enforcement actions.
Once enforcement personnel have obtained sufficient information to confirm a violation, the UST
owner/operator should be notified that the Agency considers him or her to be in violation of a technical
requirement. In general, a notification should contain the following information:
• Identification, citation, and explanation of the violation;
• A deadline for achieving compliance with the appropriate regulatory or statutory
requirements (e.g., 30 to 45 days);
9 Information to be included in the information request letter and warning letter are based on
procedures for RCRA Section 3008(a) warning letters, as set forth in the RCRA Compliance/
Enforcement Guidance Manual (OSWER Directive 9837.0, August 1984).
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• A statement indicating that continued noncompliance beyond the deadline may
result in the issuance of a Section 9006 compliance order or initiation of a civil
action, which may include an assessment of civil penalties of up to $10,000 per
tank for each day of violation; and
• The name and telephone number of an Agency contact person.
Unlike the information request letter, the notification must be sent by certified mail, return receipt
requested. In addition, a copy should be placed in the case file.
The form of the notification may range from informal warning letters to the more authoritative
NO Vs.10 Warning letters are often considered to be the more informal method of notifying an
owner/operator of a potential violation, and may be issued by the inspector at the site or be issued with
the inspector's signature. A warning letter typically serves to inform the owner/operator that the
implementing agency has been made aware of the situation, and seeks voluntary compliance by
indicating what actions should be taken to achieve compliance. A warning letter is generally issued
when the violation is minor and cooperation is expected, or when a first-time violator is expected to
comply promptly. The warning not only gives the owner/operator a chance to comply, but also
provides evidence that informal actions were taken, should more serious enforcement actions be
needed later.
The more formal NOVs may be issued if enforcement personnel believe that a stronger initial
communication is required. NOVs often follow a more structured format than informal warning letters,
and may be signed by an official from the implementing agency. While it still may be considered an
informal response, issuing an NOV marks the beginning of the more formal enforcement process - if
the owner/operator fails to adhere to the schedule outlined in the NOV, enforcement personnel may
respond with a Section 9006 compliance order or may initiate civil judicial proceedings.
3.3.3 Administrative Compliance Order
If the initial response actions described above appear to be ineffective, it may be necessary to
initiate formal administrative or judicial actions. Under Section 9006(a) of RCRA, the U.S. EPA is
authorized to issue administrative orders to compel compliance with any requirements of Subtitle I,
including the regulations (at 40 CFR Part 280) promulgated pursuant to Section 9003. These
compliance orders are usually issued in non-emergency situations where a return to compliance is
expected, and where it appears that the more informal actions (e.g., a warning letter) would be or have
been ineffective in bringing about compliance.
A typical compliance order will require that the owner/operator come into compliance immediately
or within a reasonable, specified time period. In addition, under RCRA Section 9006(d), the order may
also include a civil penalty not to exceed: (1) $10,000 per tank per day for each violation of a
requirement or standard at 40 CFR Part 280 or any approved State program; and (2) $10,000 per tank
for failure to comply with the notification requirements. Furthermore, the order should also indicate to
10 Because •warning letters' and 'notices of violation (or noncompliance)' vary greatly in format,
the terms are used here as common terms only. Indeed, warning letters and NOVs often serve the
same purpose and may be considered by some to be indistinguishable. On the other hand, an NOV
may also be considered to function as an initial administrative order. As used here, the term 'NOV'
refers to an initial notification that provides the owner/operator an opportunity to comply prior to any
formal enforcement action (i.e., administrative order).
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the owner/operator that continued noncompliance will result in further legal action, including the
assessment of additional penalties of up to $25,000 for each day of noncompliance with the compliance
order.
The procedures for issuing Section 9006 administrative compliance orders and assessing
administrative civil penalties are governed by the Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation or Suspension of Permits (the "CROP,"
40 CFR Part 22). In addition to a compliance order, the Part 22 procedures can also be used for
issuing a Section 9003 corrective action order if it is combined with a Section 9006 compliance order
and penalty, and for issuing a Section 9006 order that only assesses a penalty. The specific processes
for issuing administrative compliance orders are discussed in Chapter 4, 'Procedures for Section 9006
Compliance Orders.*
3.3.4 Judicial Actions
In addition to administrative responses, U.S. EPA Regional enforcement personnel may initiate
civil judicial action under RCRA Section 9006(a). Judicial actions are more formal actions initiated in the
U.S. Court system by the Department of Justice. To initiate the judicial action, the Agency must deliver
a written referral to DOJ formally requesting that a suit be filed by DOJ on behalf of the U.S. EPA. The
procedures for developing this referral are discussed in Section 6.1.2 of Chapter 6, "Procedures for
Judicial Enforcement.'
Because the litigative process can be both time-consuming and resource-intensive and because
the issuance of an administrative order will increase the strength of a judicial case, judicial referral does
not usually begin unless administrative responses have been found to be ineffective or inappropriate.
Judicial actions may be taken without the prior issuance of an administrative order in emergency
situations and cases where the owner/operator has a history of noncompliance. The judicial actions
that U.S. EPA Regional enforcement personnel may take are:
• Iniunctive actions - to prevent an owner/operator from continuing actions that
endanger human health and the environment. Injunctive actions include
temporary restraining orders, preliminary injunctions, and permanent
injunctions.
Civil judicial enforcement actions - to compel compliance and assess penalties
when less severe responses (such as administrative orders) have been or
would be ineffective in bringing about compliance.
There may also be circumstances in which a criminal action is appropriate.
3.4 ENFORCEMENT ACTIONS FOR RELEASES NOT REPORTED BY AN OWNER/OPERATOR
When it has been determined that a release from an UST has occurred, the primary goal of an
enforcement response is to encourage an owner/operator to conduct corrective action. However, the
specific enforcement response taken may differ depending on whether the owner/operator has reponea
the release (in which case a violation may not necessarily be involved) or whether the implementing
agency has discovered the release by some other means. The discussion that follows describes
enforcement tools used when the release is not reported by the owner/operator. Enforcement actions
that should be taken when the release has been reported by the owner/operator are described in
Section 3.5 below.
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3.4.1 Information Request Letter/On-stte Inspection
If the release was reported by someone other than the owner/operator, the implementing agency
may have general information on the location and extent of the release, but may have to determine the
source of the release as well as the identity of the owner/operator. As discussed in Section 3.3.1
above, RCRA Section 9005(a) authorizes U.S. EPA Regional enforcement personnel to issue an
information request letter that requires an owner/operator to provide information on his or her tank
system. Furthermore, Section 9005 provides the Agency with access to a site for the purpose of
responding to a release. Activities authorized under this section include: (1) inspection of tanks and
associated equipment; (2) inspection of soils, air, surface water, and ground water; (3) tank tests; and
(4) sampling. In addition, an owner/operator must provide Agency personnel with access to all records
relating to such tanks. These activities will aid enforcement personnel in confirming the release and
determining its source.
In determining the source of a release, proper procedures for documenting the investigation of a
release must be followed to ensure that the data may be used in an administrative or judicial
proceeding. In particular, the inspector must be prepared to give expert testimony, because if formal
actions are taken, the owner/operator is likely to hire a contractor to provide testimony to dispute the
Agency's findings and enforcement response. The U.S. EPA's guidance manual for inspectors,
Fundamentals of Environmental Compliance Inspections (Office of Enforcement, February 1989),
provides detailed guidance on collecting and documenting evidence for testimony.
3.4.2 Notice of Violation
Similar to the NOV for technical violations, once there is sufficient information to confirm a release,
enforcement personnel should issue an NOV to notify the UST owner/operator that he or she is
expected to comply with the requirements set forth in Subparts E and F of 40 CFR Part 280. The
specific requirements under 40 CFR Part 280 are:
• Release reporting - under section 280.50, an owner/operator who discovers site
conditions indicating a potential release must report to the implementing
agency within 24 hours.
• Investigation and Confirmation - unless corrective action under Subpart F is
initiated, section 280.51 and section 280.52 require that an owner/operator
immediately investigate and confirm a suspected release within 7 days, or as
required by the implementing agency.
• Release Response - under section 280.61, an owner/operator with a confirmed
release is required to report the release to the implementing agency within 24
hours and take immediate action to prevent any further release.
• Abatement Measures - under section 280.62, the owner/operator must take
initial abatement measures and submit a report summarizing initial abatement
measures to the implementing agency within 20 days of release confirmation.
• Investigation - under sections 280.63 and 280.64, the owner/operator must
conduct a site investigation and begin free product removal, and report results
of both activities within 45 days.
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• Corrective action plan (CAP) - under section 280.66, as directed by the
implementing agency, an owner/operator may be required to develop and
implement a corrective action plan for responding to the contaminated ground
water and soil. In cases where ground water has been impacted or where soil
contamination is severe, specific consideration should be given to requiring a
CAP.
The purpose of an NOV is to notify the owner/operator that he or she is responsible for carrying
out these actions. If the owner/operator fails to comply with any of these requirements during the
course of the corrective action, enforcement personnel may respond with a Section 9003 corrective
action order or may initiate civil judicial proceedings.
3.4.3 Corrective Action Order
Under Section 9003(h) of RCRA, the U.S. EPA is authorized to issue corrective action orders to
compel an owner/operator of a leaking UST to carry out investigative studies and undertake corrective
actions or closure activities.11 Corrective action orders should be used when an UST owner/operator
has a confirmed release, and enforcement personnel believe that he or she will respond properly and
promptly to the order.
A corrective action order will typically describe the actions that must be taken by the
owner/operator (e.g., the release response requirements set forth in Subpart F of the Technical
Regulations), provide a specific time period for taking these actions, and indicate the potential
consequences of not doing so. As with the compliance order, the corrective action order should also
indicate to the owner/operator that continued noncompliance will result in further legal action, including
the assessment of additional penalties of up to $25,000 for each day of noncompliance with the
corrective action order. As described in Section 3.3 above, enforcement personnel may need to initiate
judicial proceedings if the owner/operator continues to be recalcitrant.
The procedures for issuing Section 9003(h) corrective action orders will be governed by the Rules
Governing Issuance of and Administrative Hearings on Corrective Action Orders, codified at 40 CFR
Part 24. The specific processes for issuing administrative corrective action orders are discussed in
Chapter 5, 'Procedures for Section 9003 Corrective Action Orders.' A corrective action order may also
be combined with a Section 9006 order to compel compliance with specific technical requirements or to
include the assessment of administrative penalties. In such a case, the requirements at 40 CFR Part 22
would be used.
3.5 ENFORCEMENT ACTIONS FOR OWNER/OPERATOR-REPORTED RELEASES
If the release was reported by the owner/operator, he or she would have been required to follow
the reporting procedures set forth in Subpart F (sections 280.60 - 280.66) of 40 CFR Part 280 (see
Exhibit 3.1). Thus, the primary purpose of enforcement responses taken in a case where the release is
self-reported is to ensure that the owner/operator carries out the corrective action activities required by
the regulations. The enforcement techniques discussed below are typically used when the
owner/operator has notified the implementing agency of the release.
11 The U.S. EPA is currently evaluating the appropriate use of Section 9003(h) and Section 9006
authorities when a release has occurred to determine which is the most appropriate tool for
encouraging owner/operators to undertake corrective actions.
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Exhibit 3.1
Enforcement Response Process for Owner/Operator
Reported UST Releases
KEY
O Operation
DeeUlon
SOS088-1
o/o - Owner/Operator
NOV-Notice of Vtotaflon
CO-Consent Order
AO - Adrrtristraflve Order
CAP-Corrective Actton Plan
UnilataraJ administrative orders mil usually carry penalties.
Failure to comply with any administrate order (consent
or unilateral) will result in judicial action
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Exhibit 3.1
(continued)
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3.5.1 Acknowledgement/Information Request Letter
Acknowledgement letters are sent to the owner/operator by the implementing agency to notify the
owner/operator that the appropriate reports have been received. If the necessary reports are due from
the owner/operator or incomplete information was received, the Agency may issue an information
request letter, as described in Section 3.4.1. These letters may be used to monitor the progress of the
site investigation and corrective action.
3.5.2 Corrective Action Letter
Under 40 CFR section 280.66, the Agency has discretion to require that an owner/operator
adhere to a reasonable schedule for the completion of specific corrective action activities. The
corrective action letter is a 1 to 2 page letter that notifies the owner/operator of time frames that he or
she must use to schedule these corrective action activities. The letter is meant to be informal, and its
purpose is to capture the attention of the owner/operator, convey the implementing agency's expected
schedule for cleanup, and initiate negotiations.
3.5.3 Compliance Order
The compliance order is issued to an owner/operator who has failed to comply with the
requirements of the corrective action regulations. The compliance order is an administrative order
issued under Section 9006 with the intent of assessing penalties, rather than compelling compliance
with specific requirements.
3.6 ALTERNATIVE ENFORCEMENT TOOLS
To create a successful, comprehensive enforcement program, the U.S. EPA must provide the
enforcement staff with flexibility in implementing enforcement responses. As discussed above, not all of
the techniques described in this manual will be appropriate in all circumstances, and enforcement
personnel may wish to develop and implement some alternative enforcement tools to achieve the same
objective of compliance. The sections that follow provide examples of some additional enforcement
tools that may be used to supplement the basic tools for achieving both compliance with the technical
rules and cleanup of a release. These tools may be used alone or in combination with the techniques
described in Sections 3.3,3.4, and 3.5.
3.6.1 Show Cause Meetings
Once the appropriate owner/operator has been notified of the violation or release, he or she may
be provided with an opportunity to meet with enforcement personnel to negotiate a corrective action
plan or present any factors related to a technical violation that may mitigate the enforcement response.
One method for achieving this is to invite the owner/operator to a 'show cause* meeting. The show
cause meeting provides the owner/operator with an opportunity to present to the Agency any factors
related to the case that might mitigate the Agency's enforcement response and to provide it with an
opportunity to gather information and to clarify any factual and legal issues that may have arisen. The
show cause meeting is particularly useful when the particulars of a case do not clearly indicate the
proper course of action to be followed (i.e., an administrative order, a judicial referral, or no further
action). An invitation to the show cause meeting may be included in the NOV or warning letter, but
should be sent to the owner/operator as soon as possible after the decision has been made to have
such a meeting.
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The show cause meeting can be particularly useful in determining the most appropriate course to
take in response to a release. Following the report of a release from an UST, the U.S. EPA may either
send an information request letter to the owner/operator to confirm the release and seek compliance or,
in the case of an emergency, initiate action itself to alleviate any immediate danger to human health and
safety. Once the release is confirmed and the site is stabilized, enforcement personnel may decide that
it is appropriate to meet with the owner/operator to negotiate an agreement to perform corrective action.
This decision will depend upon the owner/operator's compliance with corrective action requirements
and cooperation with the Agency during the negotiation process.
3.6.2 Informal Settlement Conference
Negotiated resolutions of enforcement actions are considered to be a cost-effective means of
achieving compliance. The manner in which enforcement personnel negotiate with an owner/operator
will vary depending on the type of violation, whether the situation is an emergency, and the willingness
of the owner/operator to cooperate. In all cases, however, a limited time frame, whether publicized
initially or conveyed to the owner/operator during negotiations, should be developed by the
enforcement personnel. This increases the efficiency of the process. It should be noted that to be
effective, however, any negotiated agreement must still hold the threat of further action if the
owner/operator does not cooperate. To formalize this understanding, informal negotiations may be
developed into consent agreements that will be finalized in an administrative order on consent (see
Chapter 4).
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CHAPTER 4. PROCEDURES FOR SECTION 9006 COMPLIANCE ORDERS
U.S. EPA enforcement personnel are likely to take administrative actions in response to most
violations of the UST requirements when a formal response is appropriate. The Agency is authorized by
Subtitle I of RCRA to issue administrative compliance orders under RCRA Section 9006 (usually
accompanied by administrative penalties) and administrative corrective action orders under RCRA
Section 9003. This chapter discusses the U.S. EPA's authority to take Section 9006 administrative
actions and provides guidance on the procedures for issuing administrative orders and assessing
administrative penalties. Section 9003 orders are addressed in Chapter 5.
4.1 FRAMEWORK OF THE ADMINISTRATIVE PROCESS
The discussion that follows provides background on the U.S. EPA's authority to take
administrative actions, and discusses the regulations that govern the administrative process. It also
provides a brief overview of U.S. EPA administrative roles.
4.1.1 Statutory and Regulatory Framework
Section 9006(a) of RCRA authorizes the U.S. EPA to issue an administrative enforcement order
when ft is determined that an UST owner or operator is in violation of Subtitle I or any regulation
promulgated pursuant to Section 9003. RCRA Section 9006(d) authorizes the Agency to assess civil
penalties of up to $10,000 per tank per day of violation for violations of requirements promulgated under
Section 9003. Section 9006(d) also authorizes the Agency to assess civil penalties of up to $10,000 per
UST against owners and operators who fail to comply with the notification requirements or submit false
information. Civil penalties will normally be assessed for UST violations and accompany a Section
9006(a) compliance order. The procedures for issuing Section 9006 administrative compliance orders
and assessing administrative civil penalties are governed by the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties and the Revocation or Suspension of
Permits (the 'CROP,' 40 CFR Part 22).12 The CROP was recently amended to include administrative
actions conducted under Section 9006 for violations of Subtitle I.13
In general, these administrative actions are pursued when an owner/operator has not responded
to informal actions or is not expected to comply with informal requests, and the situation does not pose
an emergency. If administrative orders are not complied with or if compliance is needed immediately
(i.e., in the case of an emergency), enforcement personnel should initiate a civil judicial action under
Section 9006(a). The procedures for initiating judicial action are discussed in Chapter 6, 'Procedures
for Judicial Enforcement.1
12 Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and
the Revocation or Suspension of Permits, 40 CFR 22.01 et seq. (promulated at 45 FR 24363, April 9,
1980).
13 The CROP was amended to include administrative actions under RCRA Section 9006 on
February 24, 1988 (at 53 FR 5374).
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4.1.2 U.S. EPA Roles In the Administrative Process
Section 22.04 of the CROP presents the various authorities and duties of the key Agency officials
in the administrative litigation process. Some of the roles and responsibilities of the Regional
Administrator, the Regional Judicial Officer, and the Presiding Officer include:
• Regional Administrator (RA) - Pursuant to CROP section 22.04(a), the RA shall
exercise all powers and duties prescribed and delegated under Subtitle I and
the CROP. In addition, the RA has been delegated the authority to issue
Section 9006 administrative complaints, evaluate the appropriateness of civil
penalties, and negotiate and sign consent agreements. In every proceeding,
the RA will rule on all motions filed or made before an answer to the complaint
is filed, and on all motions filed or made after the initial decision has been
made (unless the RA has delegated his or her authority to the Division
Director).
• Regional Judicial Officer - Under section 22.04(b)(3) of the CROP, the RA may
delegate all or part of his or her authority to act in a given proceeding to a
Regional Judicial Officer. However, this delegation does not prevent the
Regional Judicial Officer from referring any case or motion back to the RA,
when appropriate.
• Presiding Officer - The role of the Presiding Officer is to conduct a fair and
impartial proceeding, ensure that the facts are fully elicited, adjudicate all
issues, and avoid delay. Under CROP section 22.04(c), the Presiding Officer's
authorities include conducting administrative hearings under the CROP, ruling
upon motions, issuing necessary orders, examining witnesses, and issuing
subpoenas.
4.2 OVERVIEW OF THE ADMINISTRATIVE PROCESS
Under the procedures set forth in the CROP, the major steps in the litigation process of issuing a
Section 9006(a) administrative order are:
• Complaint preparation and filing stage. In this stage, the Agency prepares and
files a formal complaint with the owner/operator. The purpose of the complaint
is to establish the allegations, assess a penalty (if applicable), and notify the
owner/operator of his or her right to a hearing.
• Pre-hearing stage. During this stage, the owner/operator should answer the
complaint (i.e., admit or deny the allegations, and request a hearing). Once the
complaint is served, any pre-hearing motions may be made, default orders may
be issued (if the owner/operator does not respond), and settlement or pre-
hearing conferences may occur.
• Settlement. Settlement of the case may occur at any stage, but it is the
Agency's desire that settlement negotiations take place before there is a need
for a hearing.
• Hearing stage. During the hearing, an EPA Administrative Law Judge will hear
the case, examine evidence, and make an initial decision.
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Post-hearing stage. After the hearing, appeals to the initial decision may be
made and the final order is issued.
The rest of this chapter provides detailed guidance on each of these steps. Because the descriptions
below summarize and frequently refer to requirements set forth in the CROP, the reader is advised to
obtain a copy of the 40 CFR Part 22 procedures.
4.3 COMPLAINT PREPARATION AND FILING
Complaint preparation is the first step in the U.S. EPA's adjudicatory process and provides the
basis for the initial hearing and any subsequent proceedings. A complaint generally describes the
violation, indicates actions needed to come into compliance, and, if appropriate, specifies administrative
penalties. Because of the significance of the complaint, it is important to follow the guidance on format
and filing of the complaint discussed here and presented in sections 22.05, 22.14, and 22.17 of the
CROP.
In order to establish the fundamental case for issuing an administrative order or assessing a civil
penalty under Section 9006 of RCRA, enforcement personnel must be able to substantiate in the
complaint: (1) that the violation was committed, and (2) that the person charged with the violation is
subject to the requirements of the UST regulations!™ Because there are numerous UST
requirements, it is important for enforcement personnel to introduce during the hearing any evidence
that directly supports or proves each element of the violations charged.
In the written complaint, the Agency must establish each element of the violation, notify the
owner/operator of his or her right to a hearing, and, if appropriate, assess a penalty. Pursuant to RCRA
Section 9006(c), determination of penalties must take into account the seriousness of the violation and
any good faith efforts to comply. Under the CROP section 22.14(a), each complaint for the
assessment of a civil penalty must include the following items:16
• Statement reciting the statutory authority for issuing the complaint;
Specific reference to statutory and regulatory provisions alleged to have been
violated;
• Concise statement of the factual basis for alleging the violation;
• Amount of civil penalty proposed and reasoning behind it;
Notice of an owner/operator's right to request a hearing (within 30 days); and
• A copy of the CROP.
14 RCRA Compliance/Enforcement Guidance Manual. Chapter 7, page 7-5.
15 For information on calculating administrative penalties to be assessed against violators of the
UST regulations, see the U.S. EPA Penalty Guidance for Violations of UST Regulations.
16 Chapter 7, Part 3, 'Complaint Preparation and Filing' of the RCRA Compliance/Enforcement
Guidance Manual provides additional guidance on the purpose of each element.
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Because the information in the complaint sets the framework for the administrative process, the
complaint must be as complete as possible. Failure to file a complaint that meets the standards and
procedures outlined in this section may result in the following: (1) delay the proceedings and prevent
the Agency from being granted a motion for default; (2) make the Agency subject to adverse motions
by the owner/operator; and (3) negatively affect the Agency's ability to carry the burden of proof.
Section 22.05(b) of the CROP requires the Agency to serve the owner/operator with a copy of the
complaint by (1) persona! service, or (2) certified mail, return receipt requested.17 The original and
one copy of the complaint (with proof of service) must be filed with the Regional Hearing Clerk (section
22.05(a)(1) of the CROP).
4.4 PRE-HEARING STAGE
Subpart C of the CROP (sections 22.15 to 22.19) sets forth the requirements for the pre-hearing
procedures. During the pre-hearing process, the owner/operator may file an answer to the complaint.
In addition, the U.S. EPA and the owner/operator may initiate pre-hearing motions and conferences to
settle the matter or prepare for an administrative hearing. Failure to follow the procedures within
Subpart C of the CROP could impair an otherwise entirely correct proceeding, and may cause the
Presiding Officer to dismiss or overturn the action.
4.4.1 Procedural Requirements for the Pre-hearing Stage
Section 22.05 of the CROP establishes the formatting and filing requirements for any documents
established during the pre-hearing stage. These requirements are summarized below.
Format Requirements (section 22.05(c)). A document is considered sufficient for filing if (1) the
first page contains a 'caption1 that identifies the owner/operator and correct docket number; (2) it bears
the signature of the filing party, counsel, or other representative; and (3) it bears the name, address,
and telephone number of the person filing the document if it is the initial document filed by that person
(for exceptions and changes see CROP section 22.05(c)(4)). If these requirements are not met, the
Agency official receiving the filing may refuse to accept it until it is properly amended.
Filing Requirements (section 22.05(a)). The original complaint, the answer, and all other
documents served in the proceedings are maintained by the Regional Hearing Clerk, with copies given
to the Presiding Officer and other parties.18 Any party filing a document after the complaint has been
issued must certify that copies of the document have been sent to all other parties and the Presiding
Officer (see CROP section 22.05(a)(2)). Subject to confidentiality requirements, the Regional Hearing
Clerk must make all documents filed in the proceeding available for public inspection during business
hours. The Agency enforcement official initiating the complaint should maintain a separate file
containing duplicates of aJJ documents filed in the proceeding, as well as other enforcement documents
relating to the case, which include:
• Any internal U.S. EPA documents used in generating the enforcement action
(e.g., concurrence documents, checklists, etc.);
17 For service on a U.S. Government, State, or local government official or entity, and other
exceptions, see section 22.05(b)(ii)-(iv) of the CROP.
18 Any file containing RCRA confidential information must be maintained in accordance with the
procedures set forth in the RCRA Confidential Business Information Security Manual.
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U.S. EPA investigative records such as laboratory reports and copies of
business records;
Original penalty assessment worksheet(s);
All correspondence between the owner/operator and other U.S. EPA parties;
and
All correspondence between the U.S. EPA and other Federal or State agencies
., DOJ).
This file should be retained in the Region for a minimum of 5 years after termination of the case, after
which time it should be transferred to the Records Control Center (Source: RCRA
Compliance/Enforcement Guidance Manual (1984), page 7-25).
Ex Pane Discussion. After a complaint has been issued, certain Agency officials are prohibited
from discussing ex pane (i.e., without notice to all parties) the merits of the proceeding with individuals
or their representatives who have an interest in the proceeding (see CROP section 22.08). Although ex
pane discussion is prohibited, if such communication occurs, it is regarded as argument, and a copy of
the ex parte communication is served on all other parties in the proceeding. Those other parties are
then afforded an opportunity to reply.
4.4.2 Answer to the Complaint
Procedures for answering a complaint are set forth in section 22.15 of the CROP. The
owner/operator must file an answer within 30 days after the complaint has been filed (RCRA Section
9006(b)). Before an answer to the complaint is filed, the RA shall rule on all motions filed or made.
After the answer is filed, the Presiding Officer (e.g., Administrative Law Judge) will rule on all motions.
If the owner/operator files the answer on time, the Agency may not seek a motion for default
based on the failure to file a timely answer (see CROP section 22.17(a)(1)). Furthermore, the filing of a
timely answer limits the U.S. EPA's opportunity to amend since, as a matter of right, the Agency may
amend the complaint once before the answer is filed. After that, all motions for amending the complaint
must be made to the Presiding Officer (see CROP section 22.14(d)). Before the answer has been filed,
the Agency may withdraw the complaint, in its entirety or in pan (see CROP section 22.14(e)). After one
withdrawal before the filing of an answer, or after the answer has been filed, the complaint may be
withdrawn only upon motion granted by the Presiding Officer or RA.
Section 22.05(b) of the CROP sets forth proper contents of an answer. The purpose of the
answer may be to contest the material on which the complaint is based, contest the proposed penalty
amount, or request a hearing. An insufficient answer may be regarded as an admission of charges not
sufficiently discussed (see CROP section 22.l5(b)). If the owner/operator fails to file any answer (i.e., to
admit, deny, or explain the allegations in the complaint), the Agency will also consider this an admission
of the charges and may seek a default order (see CROP section 22.15(d)).
4.4.3 Pre-hearlng Motions
Section 22.16 of the CROP sets forth the procedures for motions in the hearing process. Either
the Agency or the owner/operator may make a motion before a hearing is convened, and certain
motions must be made during the pre-hearing stage. Motions are either filed with the RA (before the
filing of an answer) or with the Presiding Officer (after the filing of an answer).
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The following types of motions may be made during the pre-hearing stage of the proceeding:
• Motion for default for failure to file a timely answer (see CROP section
• Motion to intervene (see CROP section 22.1 1 (a));
• Motion to file an amicus curiae brief (see CROP section 22.1 1 (d));
• Motion for default for failure to comply with a pre-hearing order of the Presiding
Officer (see CROP section 22.17(a)(2));
• Motion for default for failure to appear at a conference or hearing convened by
the Presiding Officer pursuant to section 22.19 of the CROP (see section
22.17(a)(3));
Motion for consolidation or severance (see CROP section 22.12(a), 22.12(b));
and
Motion for postponement of hearing (see CROP section 22.21 (c)).
Pursuant to section 22.16(b) of the CROP, a party's response to any written motion must be filed
with the Regional Hearing Clerk within 10 days after the motion has been received, except in the case
of a motion for a default order, which specifies a 20-day period for replies. If a response is not filed
within the specified time, the motion will be considered waived and may be granted without further
argument. Like all documents filed in the proceeding, both the motions and any reply to motions must
comply with the filing and service requirements specified by the CROP section 22.05.
4.4.4 Default Orders
A default order is issued by the RA or Presiding Officer when one of the parties fails to perform a
task or obligation of the proceedings. There are three circumstances under which default orders may
be issued (see CROP section 22.17(a)):
• The owner/operator fails to file a timely answer to the complaint;
• The Agency or the owner/operator fails to obey a pre-hearing or hearing order
that has been issued by the Presiding Officer; or
• The Agency or the owner/operator fails to attend a conference or hearing without showing
good cause.
Motions for default are made either to the RA or Regional Judicial Officer in the first circumstance, or to
the Presiding Officer in the second and third circumstances.
The procedures for default are set forth in section 22.17(b) of the CROP. Under these
requirements, the party making the motion for default must include with the motion a proposed default
order. The motion for default must be served on all parties and conform with the filing and service
requirements specified by section 22.05 of the CROP. Under section 22.17(a), the party to whom the
default has been served has 20 days to reply to the motion.
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If the default order is issued by the Presiding Officer (or the RA or the Regional Judicial Officer, if
a timely answer is not filed), it constitutes an 'initial decision* of the proceeding. As an initial decision,
the default order must meet the requirements of sections 22.17 (b) and (c) of the CROP (also see
CROP section 22.27, 'Initial Decision'). Section 4.6.5 of this chapter provides further detailed guidance
on initial decisions.
The default order becomes the final order of the Administrator within 45 days after its service
upon the parties unless: (1) the default order is appealed, or (2) the Administrator elects to review the
default order (see CROP section 22.27(c)). The RA or Presiding Officer may motion to set aside the
default order (see CROP section 22.17(d)). Any further appeal of the default order must be made
directly to the Administrator pursuant to section 22.30 of the CROP.
When the Administrator issues a final order upon default against the owner/operator, he or she is
subject to the following consequences:
• The owner/operator has essentially 'admitted' to all facts alleged in the
complaint and the right to a hearing is waived;
• The compliance order becomes final; and
• The penalty proposed in the complaint will become due and payable within 60
days after the final order is issued.
The admission of factual allegations and the waiver of hearing apply only to the immediate
administrative enforcement proceedings and do not affect any other proceedings. When the
Administrator issues a final order upon default against the Agency, the complaint is dismissed with
prejudice. This means that the Agency cannot file another administrative complaint based on the
allegations contained in the dismissed complaint.
4.4.5 Pre-hearlng Conference
Section 22.19 of the CROP sets forth the procedures for the pre-hearing conference. When the
hearing is ordered, the Presiding Officer will usually convene a pre-heanng conference to facilitate and
expedite the hearing proceeding. These conferences encourage informal, frank discussions among the
parties on any subjects that could delay or expedite the hearing. The pre-hearing conference may
involve (CROP section 22.19(a)):
• Settling the case;
• Attempting to simplify the proceeding through consolidation of issues and
stipulation by the parties;
• Amending the pleadings;
• Exchanging information concerning evidence to be presented (e.g., identities of
expert witnesses and summanes of their testimony and exchange of exhibits,
documents, and prepared testimony);
• Limiting the number of witnesses;
• Setting a time and place for the hearing; and
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• Attending to any matter that may expedite the disposition of the proceeding.
During the pre-hearing conference, the parties exchange witness lists, brief descriptions of
witness testimony, and copies of all documents and physical evidence that will be introduced into
evidence (see CROP section 22.19(b)). Information not exchanged at this conference cannot be
introduced into evidence without permission of the Presiding Officer. In some circumstances (e.g..
potential intimidation of witnesses), early information exchange should not be undertaken. Section
22.19(f) °f the CROP sets forth requirements for further discovery.
Any record of the pre-hearing conference generally consists of a summary prepared by the
Presiding Officer that incorporates all rulings or orders and any written stipulations or agreements of the
parties. Except for those portions of a pre-hearing conference that relate to settlements, a transcript of
the pre-hearing conference may be made (see CROP section 22.19(c)). The transcript or written
summary of the pre-hearing conference must be filed with the Regional Hearing Clerk for inclusion in
the Regional Hearing Clerk's Hie.
The Presiding Officer may present an accelerated decision at any time during the proceedings
(see CROP section 22.20). If issued, an accelerated decision or dismissal order is treated as an initial
decision and, therefore, may be appealed to the Administrator under section 22.30 of the CROP (see
discussion in Section 4.6.5 of this chapter on initial decisions). An initial decision must comply with the
requirements of section 22.27(a) of the CROP on content, filing, service, and transfer requirements. If a
partial decision is rendered, the objecting party, before appealing, must wait for a final initial decision or
obtain certification to appeal an interlocutory decision (see CROP section 22.29).
4.5 SETTLEMENT
As discussed previously, the U.S. EPA encourages settlement of an administrative proceeding
provided that the settlement is consistent with the provisions and objectives of RCRA and the UST
regulations. Therefore, the Agency's complaint should encourage the owner/operator to negotiate a
settlement through informal conferences. An informal settlement conference can be requested at any
time, whether or not the owner/operator has requested a hearing (see CROP section 22.18(a)).
However, the request for an informal conference does not extend the 30-day period during which the
owner/operator must submit a request for a hearing.
4.5.1 Procedures for Negotiating a Settlement
Section 22.18 of the CROP sets forth the procedures and requirements for settlements. The
Agency and the owner/operator can hold a settlement conference before an answer is filed and a
Presiding Officer is appointed. After a Presiding Officer has been appointed, however, settlement
conferences are subject to the jurisdiction of the Presiding Officer who may order a pre-hearing
settlement conference.
4.5.2 Preparing a Consent Order
Pursuant to CROP section 22.15(b), if the Agency and the owner/operator reach a settlement,
they must forward a written consent agreement and a proposed consent order to the RA. The consent
agreement is a negotiated settlement agreement between the parties that will be final and binding once
it has been incorporated into a consent order that is signed by the RA (see CROP section 22.18(c)).
The consent agreement must state that the owner/operator:
• Admits the jurisdictional allegations of the complaint;
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• Admits the facts in the consent agreement, or neither admits nor denies
specific allegations in the complaint; and
• Consents to the stated penalty.
The consent agreement must also include any and all terms of the agreement among the parties.
Consequently, any terms to which the parties have agreed in reaching a settlement must be reflected in
the consent agreement (e.g., agreement by intervenor not to pursue private damage remedies). Partial
settlement of the proceedings is permitted and, in many cases, is likely. The consent order eliminates
those issues of the proceeding addressed by that order and the consent agreement. Although the
consent order does not have to restate all the terms of the consent agreement, it should explicitly
incorporate by reference the consent agreement as the basis for the consent order.
The consent agreement and the final consent order constitute important documents that affect
the substantive and procedural rights of the parlies. Consequently, the originals of these documents
must be placed in the Regional Hearing Clerk's file, and copies must be served as required by section
22.06 of the CROP.
4.6 HEARING STAGE
The Presiding Officer will generally convene a hearing upon request by the owner/operator or if
the matter has not yet been disposed of by a default order, accelerated decision, dismissal order, or
consent order. If the owner/operator answers the complaint by requesting a hearing, or if the Presiding
Officer orders a hearing, the Presiding Officer must issue a notice to all parties 20 days before the
hearing (see CROP section 22.21 (b)). The Presiding Officer will then hear arguments from both parties
during the hearing.
The discussions below describe the key elements of the adjudicatory hearing including
admissable evidence, objections, rulings, transcripts, proposed findings, conclusions, initial decisions,
and appeals. Procedures for administrative hearings are set forth in Subpart D of the CROP (sections
22.21 to 22.26).
4.6.1 Admissable Evidence
The U.S. EPA will be the first party to submit evidence during the hearing. In so doing, the
Agency must prove that the UST owner/operator was required to comply with UST regulations, that the
violations in the complaint did occur, and that the proposed civil penalty is appropriate. After the
Agency has submitted evidence, the owner/operator will present any defense to the allegations in the
complaint. The Presiding Officer will admit or deny evidence presented by either party pursuant to
section 22.22(a) of the CROP. Guidelines for submitting exhibits and physical evidence are found in
section 22.22(e) of the CROP.
After both parties have presented their evidence, the Presiding Officer will make decisions on
each matter of the complaint. Decisions will be judged upon preponderance of evidence; that is, each
party must convince the Presiding Officer that his or her allegations appear more likely or probable than
the other party's allegations (see CROP section 22.24).
Evidence Relating to Settlement, Any evidence relating to settlement that would be excluded
under Rule 408 of the Federal Rules of Evidence is also excluded under the CROP. The Federal Rules
of Evidence generally exclude any evidence of settlement or attempted settlement that ft is offered as
proof of an admission of liability. This evidence, however, may be admitted for another purpose, such
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as proving bias of a witness or disproving a contention of undue delay. When such evidence is offered
for these purposes, it may still be excluded if the Presiding Officer determines that its substantiating
value is outweighed by confusion of issues, undue delay, etc.
Testimony. Witnesses are generally examined orally upon oath or affirmation (except in certain
cases as defined in CROP section 22.22(c)). Written statements may be appropriate when the
testimony is too technical or academic to be clearly presented through direct questioning. An affidavit
may be admitted into evidence when witnesses are unavailable (i.e., if they are exempt by a court order,
claim lack of memory, are seriously ill or physically impaired, or are absent despite efforts to secure
their attendance).
Subpoenas and Summoning Witnesses. The Presiding Officer may issue a subpoena to require
certain witnesses to attend or to produce documentary evidence, or may grant a request for subpoena
pursuant to section 22.37(f) of the CROP.
Offers of Proof. When the Presiding Officer rejects submitted evidence, the party seeking to
introduce the evidence may not only object to its exclusion, but may also make an offer of proof. An
offer of proof places the evidence into the official record, and the Administrator on appeal can use such
evidence to reopen the hearing. This offer is subject to requirements under section 22.23 of the CROP.
4.6.2 Objections and Rulings
Pursuant to section 22.23 of the CROP, either party may object orally or in writing to the conduct
of the hearing. The Presiding Officer must rule on all objections and provide reasons for the rulings,
which will become part of the record. Copies of the ruling must be served in accordance with section
22.06 of the CROP. A party wishing to appeal the Presiding Officer's ruling on an objection must make
a motion in writing within 6 days of notice of the ruling to the Presiding Officer to certify such ruling to
the Administrator. (Also see CROP section 22.29(a), 'Request for Interlocutory Appeal.')
4.6.3 Transcript of the Hearing
Pursuant to section 22.25 of the CROP, a hearing must be transcribed verbatim, and the reporter
must send the original and copies of the transcript to the Regional Hearing Clerk for filing. The
transcript of the hearing is an important document because many objections and motions made during
the hearing are oral and are thus reflected only in the transcript. In addition, the transcript is used by
the parties to draft the proposed findings of fact, conclusions of law, and orders, which are then
submitted to the Presiding Officer for consideration in issuing the initial decision.
4.6.4 Proposed Findings, Conclusions, and Orders
At the conclusion of the hearing, parties may submit (within 20 days after service of the hearing
transcript) proposed findings of fact, conclusions of law, and orders to the Presiding Officer for
consideration in issuing the initial decision. The purpose of the proposals and supporting briefs is for
each party to state its position and to persuade the Presiding Officer to adopt its proposal (see CROP
section 22.26).
4.6.5 Initial Decision
The Presiding Officer must issue an initial decision as soon as is "practicable" after the period
specified for filing reply briefs to the proposed findings, conclusions of law, and orders. The initial
decision should contain the Presiding Officer's:
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• Findings of fact and conclusions for all material issues of law or discretion;
• Reasons for those findings and conclusions;
• Recommended civil penalty; and
• Proposed final order.
An initial decision becomes a final order within 45 days after it is served unless a party files a motion to
re-open the hearing or makes an appeal to the Administrator, or the Administrator decides to review the
initial decision (see CROP sections 22.27 and 22.28).
Pursuant to section 22.28 of the CROP, a party has up to 20 days after the initial decision to file a
motion to reopen a hearing in order to submit additional evidence. Other parties have 10 days after the
motion is filed to make replies. The Presiding Officer will rule on the motion and replies as soon as
practicable.
4.6.6 Appeals of Interlocutory Orders or Rulings
Under section 22.29 of the CROP, the only orders or rulings that parties may appeal to the
Administrator as a matter of right are (1-) accelerated decisions that decide the entire case; (2) dismissal
orders; (3) default orders; and (4) initial decisions rendered after an evidentiary hearing. All other
orders or rulings issued by an Agency official during the pre-heanng and hearing proceedings are
considered provisional to the proceeding. Such interlocutory orders must await the issuance of an
initial decision before they can be appealed.
4.7 POST-HEARING STAGE
Post-hearing proceedings usually consist of appeals of the final decision by the losing party.
However, it is unlikely that an appellate court will overturn a Presiding Officer's decision unless the
appealing party can prove that the basis of the verdict is flawed. The procedures for appeals, final
orders, and penalty payments are discussed below.
4.7.1 Appeal of Initial Decision
Jurisdiction of Administrator. As stated in section 22.27 of the CROP, the Administrator assumes
full jurisdiction of the case immediately after the Presiding Officer issues an initial decision. The
Administrator assumes jurisdiction regardless of whether or not a party appeals the initial decision. If,
however, a party files a motion to reopen a hearing, the Presiding Officer may rule on that motion.
Notice of Appeal and Appellate Brief. The notice of appeal and appellate brief must be filed with
the Hearing Clerk within 20 days after the initial decision is served on the parties. The notice of appeal
must address the disputed findings of fact and conclusions of law contained in the initial decision and
present the appellant's arguments as to why the appeal should be granted. Specifically, under section
22.20 of the CROP, the notice of appeal must contain:
• Alternative findings of fact;
• Alternative conclusions regarding issues of law or discretion;
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• A proposed order that reflects the conclusions and findings desired by the
appellant; and
• Relevant references to the record and the initial decision.
Any other party may file a reply brief with the Hearing Clerk within 15 days of service of a notice
of appeal and appellate brief. The reply brief is specifically intended to address only the appellate brief
and should be so limited (see CROP sections 22.27(c) and 22.30(b)).
Administrator's Actions. Even if the initial decision is not formally appealed, the Administrator may
decide to review the initial decision. Otherwise, the initial decision of the Presiding Officer becomes the
final order of the Administrator 45 days after service of the initial decision (see CROP sections 22.27(c)
and 22.30(b)).
4.7.2 Final Order
The Administrator is required to issue a final order as soon as is practicable after the final action
of the appeal process - either after filing of appellate briefs, filing of subsequent briefs if ordered by the
Administrator, or oral argument, whichever occurs last (see CROP section 22.31). In the final order, the
Administrator may: (1) adopt, modify, or set aside all or some of the findings and conclusions
contained in the initial decision or order; and (2) increase or decrease the recommended penalty unless
the initial decision is a default order. The CROP requires the final order to contain the reasons for any
decision that the Administrator makes.
' Pursuant to section 22.32 of the CROP, a party may file a motion to reconsider a final order within
10 days after the final order is issued. This motion must explain and provide evidence for any matters
that the party claims have been decided erroneously. The motion may also include a request that the
final order be stayed until the matter is resolved. Unless such a request for a stay is granted, however,
the effective date of the final order is the date it was issued, unless otherwise ordered by the
Administrator. A party may appeal the findings of the final order to a U.S. Court of Appeals. The
obligation to pay the civil penalty does not become due until the party has appealed or exhausted all
appeals. The payment of a civil penalty specified in a final order of the Administrator is due and
payable in full within 60 days after the respondent receives the final order, unless otherwise agreed by
the parties.
4.8 COST-RECOVERY ACTIONS
If an owner/operator fails to respond to Section 9003 corrective action orders, and immediate
cleanup of the site is needed, it may be necessary to expend LUST Trust Fund monies for corrective
action at the site. The specific situations in which LUST Trust Fund monies may be expended are
discussed in Chapter 1, 'Overview of the UST/LUST Enforcement Program.' Under Section 9003(h), the
owner/operator of a leaking UST is liable for any LUST Trust Fund monies used by the U.S. EPA (or a
State under a Cooperative Agreement) for corrective action or enforcement. Thus, the Agency or the
State should make efforts to recover such costs from the owner/operator. Consistent with the U.S.
EPA's overall approach to the UST program, cost-recovery efforts will be made primarily by the States
(Cost Recovery Policy for the Leaking Underground Storage Tank Trust Fund. OSWER Directive
9610.10, October 1988). Under the Agency's cost-recovery program, States with Cooperative
Agreements will be able to litigate and settle recovery claims without the involvement of the U.S. EPA or
DOJ. However, there may be circumstances in which U.S. EPA and/or DOJ involvement may be
necessary, such as where the Agency responds directly to a release, and in rare cases of overling
(OSWER Directive 9610.10).
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Once a cleanup has been conducted, either by a State or by the Agency, cost-recovery
procedures will typically include the following steps: (1) demand for payment; (2) negotiation for a
settlement of the recovery claim; (3) litigation (when demand for payment and negotiations fail); and (4)
collection and case closure. The first step in pursuing cost recovery from an owner/operator is to
compile cost documentation for the demand for payment. The Agency has developed a number of
documents to provide guidance for this process, including:
• Guidelines for UST Trust Fund Cooperative Agreements. OSWER Directive
9650.6, April 1987.
• 'Interim Financial Policies and Procedures Governing Use of the Leaking
Underground Storage Tank (LUST) Trust Fund,' Comptroller Policy
Announcement No. 87-13, June 3,1987.
• Supplemental Requirements for LUST Trust Fund Cooperative Agreements.
OSWER Directive 9650.6-1, August 1987.
Other documents that may be useful (check with the Regional financial management division or your
Freedom of Information Act Officer) include:
• 'Reporting and Recordkeeping Requirements for LUST Cooperative
Agreements,* Memorandum from David P. Ryan and Harvey G. Pippin, July 2,
1987.
• 'Letter of Credit Drawdown Procedures for States Receiving LUST Trust Fund
Cooperative Agreements,' Memorandum from David P. Ryan, Comptroller,
August 12, 1987.
• 'LUST Cooperative Agreement Issues,' Memorandum from Howard Corcoran,
OGC, and Joe Retzer, OUST, August 26, 1987.
• 'Development of LUST Cost Recovery Policy and Financial Management
Guidance,' Memorandum from David P. Ryan, Comptroller, and Ron Brand,
OUST, March 25, 1988.
The following guidance documents prepared under the U.S. EPA Superfund program may also provide
useful information on cost recovery: (1) 'Procedures for Documenting Costs for CERCLA Section 107
Actions' (Office of Waste Program Enforcement, January 1985); (2) 'Financial Management Procedures
for Documenting Superfund Costs' (Financial Management Division, September 1986); (3) State
Participation in the Superfund Program Manual. Appendix U: Cost Documentation Requirements for
Superfund Cooperative Agreements. (OSWER Directive 9375.1-4-U, September 1986); (4) 'Resource
Management Directive 2550D - Financial Management of the Superfund Program' (Comptroller, July 25,
1988); and (5) Superfund Cost Recovery Strategy. (OSWER Directive 9832.13, July 1988).
Based on the cost documentation collected, enforcement personnel should prepare a demand
letter to issue to the owner/operator. Once the demand letter has been issued, it may be appropriate to
negotiate a settlement for the costs before any formal litigation has been pursued. Because they are
more cost effective, negotiated settlements are generally preferred over litigation (OSWER Directive
9610.10). Several U.S. EPA documents provide guidance on the use of alternative dispute resolution
techniques for settling claims: (1) 'Final Guidance on the Use of Alternative Dispute Resolution
Techniques in Enforcement Actions,' (August 14, 1987); and (2) 'Arbitration Procedures for Small
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Superfund Cost Recovery Claims,153 FR 29428, August 4,1988. If negotiations are unsuccessful and
the Agency has difficulty collecting payment, it may be necessary to refer the case to DOJ for judicial
action.
Even where no administrative or judicial settlement is reached, a cost-recovery case must be
formally closed. Factors justifying case closure include situations where costs of pursuing the case
further will approach or exceed the potential recovery or will result in bankruptcy of the owner/operator.
Some U.S. EPA Regional offices have already developed procedures for closing out Superfund cases
that may also be appropriate for closing LUST cases.
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CHAPTER 5. PROCEDURES FOR SECTION 9003(H) CORRECTIVE ACTION ORDERS
When an UST owner/operator fails to initiate or conduct appropriate corrective action for an UST
release, it may be appropriate for enforcement personnel to issue a corrective action order. U.S. EPA
enforcement personnel are authorized by Section 9003(h) of RCRA to issue administrative orders that
compel owner/operators of leaking USTs to take specific corrective actions. This chapter discusses the
U.S. EPA's authority to issue corrective action orders under Section 9003(h) and provides guidance on
the procedures for issuing and conducting hearings under such orders.
5.1 FRAMEWORK OF THE ADMINISTRATIVE PROCESS
The discussion that follows provides statutory background on the U.S. EPA's authority to issue
corrective action orders, and discusses the regulations that govern the administrative process for such
orders. It also briefly describes the roles of various Agency personnel in the administrative process.
5.1.1 Statutory Background
Section 205 of the Superfund Amendments and Reauthorization Act of 1986 (SARA) added
Section 9003(h) to RCRA Subtitle I, establishing a program for cleanup of petroleum from leaking USTs.
A fundamental element of the cleanup program is the Agency's authority under Section 9003(h) to
respond to UST releases through corrective actions, enforcement activities, and cost recovery.
Specifically, Section 9003(h)(4) enables the Agency to issue corrective action orders that require an
owner/operator of a leaking UST to carry out investigative studies and undertake corrective actions or
closure activities. These administrative actions are generally used in non-emergency situations to
promote timely response to releases for which the owner or operator fails to initiate corrective action.
5.1.2 Regulations Governing Administrative Actions
The procedures for issuing Section 9003(h) corrective action orders will be governed by the Rules
Governing Issuance of and Administrative Hearings on Corrective Action Orders, codified at 40 CFR
Part 24. The procedures at Part 24 provide a streamlined and less formal approach for presenting
arguments and evidence than 40 CFR Part 22. These streamlined procedures were initially developed
for issuing RCRA section 3008(h) corrective action orders (53 FR 12256, April 13,1988). However, the
Agency intends to amend Part 24 to include administrative actions conducted under Section 9003(h) for
issuing corrective action orders (the amended procedures are expected to be published in the Federal
Register in Summer 1990).
The uncomplicated and less formal nature of the administrative procedures under Part 24 make it
more suitable for issuing Section 9003(h) corrective action orders than Part 22. In particular, the Part 24
procedures use a simplified process to determine the factual basis for the enforcement action, and
provide a framework more suitable to the technical nature of decisions regarding corrective action
orders. Unlike Section 9006 orders, which present specific violations and require compliance with
specific requirements, Section 9003(h) orders seek to compel owner/operators to undertake studies to
examine releases and to take measures necessary to remediate such releases. Thus, in Part 22
proceedings, EPA decision-makers are required to resolve specific facts relating to the violation (e.g.,
did the violation occur? how serious was the violation? what is the economic benefit to the violator?),
while the jurisdictional prerequisite needed for a Section 9003(h) order is establishing that the release
from an UST has occurred.
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The Part 24 regulation uses a two-tiered set of procedures for conducting administrative hearings:
(1) Subpart B, 'Hearings on Orders Requiring Investigations or Studies' and (2) Subpart C, 'Hearings on
Orders Requiring Corrective Action.' The Subpart C procedures are somewhat more formal than those
under Subpart B, and require the owner/operator to implement more comprehensive (rather than
interim) corrective action measures. Because Section 9003(h) corrective action orders will typically
require the owner/operator to undertake corrective action measures, the Agency determined that the
procedures for hearings requested by the recipients of such orders are more appropriately governed by
Subpart C hearing procedures. Thus, owner/operators who request hearings for a Section 9003(h)
corrective action order will be subject to the Subpart C procedures. The Subpart B procedures will not
be employed for Section 9003(h) orders.
5.1.3 The Agency's Roles In the Administrative Process
Under Part 24, the 'petitioner* issuing the initial order must be an authorized official of the U.S.
EPA, other than the Regional Administrator or the Assistant Administrator for the Office of Solid Waste
and Emergency Response (see section 24.02(b)). The Presiding Officer of the case must be either the
Regional Judicial Officer (as described in section 22.04(b) of Part 22) or another U.S. EPA attorney who
has had no prior connection with the case, including performing any investigative or prosecuting
functions. Unlike the Part 22 procedures, the Part 24 procedures do not require that the Presiding
Officer be an Administrative Law Judge (ALJ). For the more informal procedures under Part 24, an
ALJ's experience in conducting formal adjudicatory hearings is not required and does not justify the
added cost.
5.2 OVERVIEW OF THE ADMINISTRATIVE PROCESS
The procedures for hearings on corrective actions are set forth in Subpart C of 40 CFR Part 24.
Under these procedures, the major steps in the litigation process of issuing a Section 9003(h) corrective
action order are:
Order Preparation and Filing - In this stage, the appropriate Agency Regional
office will prepare and serve the initial order on the owner/operator. This order
will establish the Region's determination that a release from an UST has
occurred, prescribe appropriate corrective action, and notify the owner or
operator of his or her right to a hearing.
• Pre-hearing Stage - After the owner/operator requests a hearing, the Regional
office that issued the order will submit documents supporting the factual basis
for issuing the order. Similarly, the owner/operator will submit documents
supporting the basis for contesting the order.
• Settlement Conference - At any time during the proceedings, the
owner/operator may request an informal settlement conference. If the
conference results in an order agreed to by both parties, the order will be
issued as the final administrative order on consent.
• Hearing • The hearing consists of oral presentations by both parties and
questions from the Presiding Officer, with no direct- or cross-examination. After
a hearing is concluded, the Presiding Officer will recommend a decision that
will be passed on to the Regional Administrator, who will make a final decision.
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Detailed guidance on each of these steps is provided in the sections that follow. Because the
descriptions below summarize and frequently refer to requirements set forth in 40 CFR Part 24, the
reader is advised to obtain a copy of the Part 24 procedures.
5.3 PREPARATION AND FIUNG OF THE INITIAL ORDER
Similar to the Part 22 procedures, preparation of the initial order is the first step in the Part 24
adjudicatory process, and provides the basis for the hearing. Under section 24.02(a), an order issued
unilaterally will become a final order either after the Regional Administrator has made a final decision, or
after 30 days from issuance of the order, if no hearing is requested. If an initial order is agreed to by
both the Agency and the owner/operator, the final order will be a final administrative order on consent
(also referred to as a consent order).
5.3.1 Elements of the Order
In order to establish the fundamental case for issuing the order, enforcement personnel must be
able to substantiate that a release from an UST has occurred. In addition, the initial administrative
corrective action order will also contain the following (see section 24.02 (c)):
• Reference to RCRA Section 9003(h), the legal authority for issuing the order,
and evidence that the owner/operator receiving the order is subject to these
requirements;
• Concise statement of the factual basis upon which the order is issued (i.e.,
evidence that a release from an UST into the environment has occurred);
• Notification of owner/operator's right to request a hearing with respect to any
issue of material fact or the appropriateness of the proposed corrective action
(within 30 days); and
• Indication of which Part 24 hearing procedures are appropriate (i.e., the
Subpart C procedures).
For most cases involving releases from USTs, the corrective action order issued under Section 9003(h)
will also indicate the measures that the owner/operator must undertake in response to the UST release.
5.3.2 The Administrative Record
An important component of the Part 24 procedures is the requirement that the U.S. EPA make
available to the owner/operator the entire administrative record underlying the initial order (see section
24.03). Thus, on, or before, the date that the initial order is issued, the Regional Office issuing the
order must deliver to the Clerk a copy of the administrative record. This administrative record must
contain all the information that the Agency considered in its decision to issue the order, regardless of
whether the information supports that decision. This record must be available at the appropriate
Agency office for inspection by the owner/operator (or the public) after the order is issued.
5.3.3 Ex parte Discussions
After an initial order is issued, the Presiding Officer, the Regional Administrator, and certain other
Agency officials are prohibited from discussing ex parte (i.e., without notice to all parties) the merits of
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the proceeding with Agency staff involved in the case or other interested individuals (see section
24.13(b)). Although ex pane discussion is prohibited, if such communication does occur, and the
information discussed is relevant to the case, a summary of the discussion must be served on all other
parties in the proceeding. Those other parties are given 10 days to reply.
5.4 PRE-HEARING STAGE
Once issued, the initial order will become final within 30 days unless the owner/operator requests
a hearing. If the owner/operator does request a hearing, the pre-hearing stage provides an opportunity
for both parties to obtain further information. Section 24.04 establishes the filing and service
requirements for the initial order and any other documents established during the pre-hearing stage.
These requirements should be followed to ensure that the hearing proceeds correctly.
5.4.1 Request for Hearing
Within 30 days of receiving the initial order, the owner/operator may respond in writing to the
Clerk of the Regional Office and request a hearing. Upon receipt of the owner/operator's request for a
hearing, the Regional Administrator designates a Presiding Officer to conduct the hearing and preside
over the proceedings. Once appointed, the Presiding Officer establishes a schedule for:
• The owner/operator's submission of memorandum responding to the order;
• The Agency's submission of a response; and
• A public hearing, which must be scheduled within 45 days of the order (see
section 24.14(a)).19
5.4.2 Pre-hearing Submissions
In accordance with the Presiding Officer's schedule, the owner/operator must file a memorandum
stating his or her position on the order. This response must specify each item in the order that the
owner/operator wishes to dispute, and must provide the basis for that dispute (see section 24.05(c)). If
the owner/operator wishes to modify the order, the response must include any such proposed
modifications (see section 24.14(c)).
In addition, the Subpart C proceedings allow the owner/operator to request permission to submit
up to 25 written questions to the U.S. EPA Regional Office issuing the order (see section 24.l4(d)).
Both the request and the questions themselves must be submitted to the Presiding Officer at least 21
days before the hearing. The purpose of allowing an owner/operator to ask questions is to provide
protection against factual error. In making the decision of whether to respond to the questions, the
Presiding Officer will consider whether answering the questions is necessary for adequately resolving
the facts at issue (see section 24.l4(d)). Any questions regarding privileged internal communication will
be disallowed. If the Presiding Officer does decide to allow the questions, he or she may limit the
number or scope of the questions, or may delete or revise specific questions if they are irrelevant or
unnecessary. Once the Presiding Officer has submitted the questions to the Regional Office, they must
be answered within 14 days. All filing and service of documents must follow the guidelines described in
section 24.04.
19 Under section 24.14(b), the Presiding Officer may extend deadlines for filing or conducting the
hearing, if necessary.
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The Agency's pre-hearing submissions include a response to the owner/operator's dispute of the
initial order. The primary goal of the U.S. EPA response is to provide a full analysis of the applicability
of the UST requirements to the owner/operator, and to demonstrate the need for the appropriate
corrective action.
In addition, during the pre-hearing stage, the Presiding Officer has the discretion to order either
party to submit additional information on any undeveloped factual, technical, or legal matter in the
proceeding (this information may also be requested at or after the hearing, if appropriate). In addition,
the Presiding Officer may also issue subpoenas requiring certain persons to attend the hearing and
give testimony, or requiring the owner/operator to produce relevant papers, books, and documents.
Since 40 CFR Part 24 hearing procedures do not allow direct- or cross-examination of witnesses, the
subpoena power is to serve only as an adjunct to the Presiding Officer's authority to ask questions and
otherwise take steps to clarify disputed factual matters.
5.5 SETTLEMENT CONFERENCE
At any time during the pre-hearing procedures, the owner/operator may request an informal
settlement conference by contacting the U.S. EPA employee indicated in the order (see section 24.07).
(The request for an informal conference does not, however, excuse the owner/operator from having to
request a hearing within 30 days.) The purpose of such informal settlement conferences is to
encourage informal, frank discussions among the parties on any subjects that could delay or expedite
the hearing. In addition, informal conferences allow the owner/operator an opportunity to discuss with
the appropriate Agency technical and legal personnel all aspects of the order. If, during an informal
settlement conference, an order is agreed to by both parties through negotiations, the order will be
called the final administrative order on consent.
5.6 HEARING STAGE
Part 24 hearings eliminate time-consuming hearing features (i.e., direct- or cross-examination)
because issues concerning whether an UST release has occurred and appropriate corrective actions
are likely to be complex and more susceptible to resolution through analysis of a full documentary
record. In addition, these procedures promote timely selection and implementation of appropriate
corrective action. In overseeing the hearings, the Presiding Officer is responsible for ensuring that the
hearing process is fair and impartial manner, for avoiding unnecessary delay in the disposition of the
proceedings, and for maintaining order.
5.6.1 Hearing Procedures
Under Subpart C of the Part 24 proceedings, the hearing process consists of oral presentations
and rebuttals by both parties, and questions from the Presiding Officer. The hearing process begins
with a representative of the U.S. EPA introducing the order and its supporting evidence, and
summarizing the basis for the order. The owner/operator may then respond to the administrative record
and offer any facts, statements, explanations, or documents that are relevant to the issues in the order.
In this presentation, however, the owner/operator is not allowed to present any new documents unless
he or she can demonstrate that such documents could not have been submitted to the Agency before
the hearing. The Agency will then have an opportunity to present a rebuttal to the issues presented by
the owner/operator. The Presiding Officer may allow the owner/operator to respond to any such
rebuttal submitted. The Presiding Officer may also allow Agency representative to respond to any new
information submitted by the owner/operator. In addition, the Presiding Officer may ask questions of
either side during the hearing.
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OSWER Directive 9610.11
5.6.2 Presiding Officer's Recommendations
As soon as practicable after the hearing, the Presiding Officer will file a recommended decision
with the Regional Administrator. This recommended decision should be based on the entire
administrative record, which consists of the transcript or recording of the hearing and all written
submittals filed with the Clerk by the parties, including post-hearing submissions. The recommended
decision must address all factual or legal issues raised by the owner/operator and must indicate
whether the order should be modified, withdrawn, or issued as is. If the Presiding Officer determines
that the corrective action filed by the Agency and contested by the owner/operator is not clearly
supported by evidence in the record, the Presiding Officer will recommend that the order be modified or
withdrawn. Any decision recommended must include an explanation of the decision, and should cite
any material contained in the record that is relevant to the decision.
5.6.3 Final Order
After the Presiding Officer has recommended the decision, the Regional Administrator assumes
jurisdiction over the proceedings. The Part 24 procedures provide both the owner/operator and the
Agency with the opportunity to file comments on the recommended decision within 21 days. The Clerk
promptly transmits any such comments received to the Regional Administrator for his or her
consideration in reaching a final decision (see section 24.17(b)).
Based on the Presiding Officer's recommended decision, any further comments, and the entire
administrative record, the Regional Administrator will maKe the final decision. There are three possible
outcomes for the final order:
If the Regional Administrator disagrees with the initial order, based on the
administrative record, and decides to modify the order, the official who signed
the initial administrative order must modify the order in accordance with the
terms of the final decision, and must file and serve a copy of the final
administrative order. The final order must include the legal and factual basis
for the modification.
• If the Regional Administrator has no changes to the order, the final decision will
declare the initial administrative order to be a final order. Because the
Presiding Officer's recommended decision will include the basis for his or her
decision, the final order will also include that justification.
• If the Regional Administrator declares that the initial order must be withdrawn,
the official who signed the initial administrative order must file and serve a
withdrawal of the initial order.
All final orders are effective upon service of the final decision. The final decision and the final
administrative order are final agency actions that are effective on filing and service. These actions are
not appealable to the Administrator, appeals may only be sought through judicial channels (see
Chapter 6).
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OSWER Directive 9610.11
CHAPTER 6. PROCEDURES FOR JUDICIAL ENFORCEMENT
In addition to administrative enforcement responses, the U.S. EPA may initiate civil judicial actions
for violations of the UST requirements. Section 9006 of RCRA authorizes the Agency to commence a
civil action in the U.S. District Court for appropriate relief, including a temporary or permanent injunction.
At the request of the Agency, DOJ will file judicial actions in the U.S. District Court. The action must be
filed in the U.S. District Court for the judicial district in which the violation occurred.
U.S. EPA enforcement personnel may initiate civil judicial actions to require an UST owner or
operator to comply with regulatory requirements and to assess civil judicial penalties. This chapter
provides guidance on choosing the types of judicial actions to be initiated under Subtitle I, describes
the process for filing judicial actions, and discusses the role of settlement agreements.
6.1 CIVIL JUDICIAL ACTIONS
Enforcement personnel may initiate judicial actions to compel compliance (through use of a
judicial compliance order) or to seek judicial penalties. For UST cases requiring immediate judicial relief
(e.g., in cases of leaking USTs where immediate remedial action is needed), enforcement personnel
should seek injunctive relief or a temporary restraining order to accompany the judicial order.
6.1.1 Use of Judicial Compliance Orders and Penalties
Judicial referrals are usually reserved for cases where an UST owner/operator has a history of
noncompliance, or where judicial action is necessary to deter others from violating the requirements.
Judicial enforcement should also be initiated when an UST owner/operator has not complied with a
Section 9006 administrative compliance order or a Section 9003(h) corrective action order. Agency
enforcement personnel should pursue judicial orders to compel compliance and to obtain judicial relief
in the form of penalties. Section 9006(a)(3) provides that owner/operators that fail to comply with a
Section 9006 order are liable for additional civil penalties of not more than $25,000 for each day of
noncompliance with the order, in addition to the penalties assessed in the order. Such penalties may
also be assessed for Section 9003(h) corrective action orders because these orders are to be enforced
in the same manner as Section 9006 orders (see Section 9003(h)(4)).
In general, however, preparing civil judicial cases is resource-intensive because of the
involvement of DOJ and the more formalized procedures needed for court actions. In addition, the
litigative process is slow, with some cases taking several years to complete. Thus, Agency enforcement
personnel should attempt to address violations through other mechanisms before pursuing judicial
responses, unless it appears that the owner/operator is not likely to respond to administrative actions.
The statute does not require that the Agency exhaust all potential administrative actions before pursuing
judicial actions.
6.1.2 Procedures for Filing Judicial Actions
To support a judicial action, enforcement personnel must provide competent evidence to the
court in accordance with the Federal Rules of Evidence. Thus, prior to filing the action, enforcement
personnel should review each element of the offense to ensure that there is sufficient evidence to
support each claim of the violation.
Requests for civil judicial actions from U.S. EPA Regional offices are usually referred to DOJ either
directly or through U.S. EPA Headquarters, Office of Enforcement. In most cases, the Regional office
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OSWER Directive 9610.11
will initiate the request by establishing a litigation team that prepares a referral package for
Headquarters. The Regional office will also designate a lead attorney and lead technical representative
for the case. The referral package demonstrates the need for litigation in the particular case and
presents the Agency's technical and legal data on the situation. Contents of the package include:
Cover Letter - letter to be signed by the AA for the Office of Enforcement that
describes the incident and requests the litigation;
• Referral Memorandum - memorandum that summarizes the primary elements of
the litigation, and includes the name of the defendant(s), brief summary of the
case, identification of major issues, status of past Agency efforts, and names of
U.S. EPA and DOJ attorneys involved in the case; and
• Civil Litigation Report - report prepared by the lead attorney that indicates the
specific relief sought (e.g., injunctive relief or penalties), identifies specific
sections of the regulations violated, and indicates the available supporting
evidence. The report also identifies any expected defenses by the
owner/operator and any pending administrative or judicial actions against the
owner/operator.
The RA may either refer actions directly to DOJ, with notice to the Assistant Administrator for the Office
of Enforcement, or may refer the action to the Office of Enforcement for their referral to DOJ. If the
referral is through the Office of Enforcement, the RA sends the package to them with copies to the AAs
of the Office of Solid Waste and Emergency Response (OSWER) and DOJ. Once the Office of
Enforcement and OSWER have determined that the package is in order, the Office of Enforcement
attorneys will transmit the package to DOJ or the U.S. Attorney's Office. The Office of Enforcement will
notify the RA and OSWER when the referral is transmitted. After this point, the lead attorney will be
responsible for providing supplemental information to DOJ or the Attorney's Office, and keeping U.S.
EPA program officials and attorneys informed of case developments.
For detailed information on the investigation of judicial actions and the referral to DOJ,
enforcement personnel should consult the following documents:
RCRA/CERCLA Case Management Handbook. OSWER Directive 9837.0,
August 1984;
• Expanded Civil Judicial Referral Procedures. OSWER Directive 9891.1, August
1986;
• Memorandum of Understanding between the Department of Justice and the
Environmental Protection Agency (June 15, 1977);
• General Operating Procedures for the U.S. EPA's Civil Enforcement Program
(July 1982);
• Case Referrals for Civil Litigation (September 1982);
• Headquarters Review and Tracking of Civil Referrals (March 8,1984); and
• Revised Regional Referral Package Cover Letter and Data Sheet (May 30,1985).
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The list of reference documents provided in this guidance manual suggests sources for obtaining these
documents.
6.2 INJUNCTIVE ACTIONS
In cases where immediate action is needed, e.g., in the case of an UST release that is threatening
a public water supply, enforcement personnel should seek injunctive relief. As provided by the authority
under Section 9006, U.S. EPA enforcement personnel may initiate judicial actions for injunctive relief in
the form of temporary restraining orders, preliminary injunctions, or permanent injunctions. These
actions are typically required in emergency situations where an order is needed quickly to cease
owner/operator actions that threaten the environment.
6.2.1 Temporary Restraining Orders
A temporary restraining order (TOO), also known as a provisional injunction, is used for immediate
temporary relief prior to issuing a preliminary injunction. The purpose of the TRO is to stabilize the
situation until a motion for a preliminary injunction can be heard. Although the TRO is the most
expedient injunctive relief that can be obtained, its authority is limited to a short period of time (10
days). The process for obtaining a TRO is governed by the Federal Rules of Civil Procedure. In a
typical case, the owner/operator (or his or her attorney) will be given oral or written notice for the TRO.
The facts that demonstrate the 'immediate and irreparable injury, loss, or damage* should appear in
either a complaint or a separate affidavit.
Enforcement personnel do not have to give notice if it can be shown that immediate and
irreparable harm will occur before the owner/operator can be notified, and if the government attorney
certifies in writing the efforts taken to give notice and the reasons why notice is not required. In these
cases, the motion for the preliminary injunction must be filed as soon as possible. If the U.S. EPA does
not proceed with the application for a preliminary injunction, the TRO will be dissolved by the court.
6.2.2 Preliminary Injunctions
The purpose of the preliminary injunction is to maintain the situation until final determination after
a full hearing. The preliminary injunction requires advance warning to the owner/operator and can last
longer than the 10-day TRO. The owner/operator has the right to contest the motion, and the U.S. EPA
applicant bears the burden of proof.
Either a preliminary injunction or a TRO should be considered when:
• Immediate and irreparable injury, loss, or damage will result if relief is not
granted; and
• There is a likelihood of success at trial based on the facts before the court.
If the court grants a motion for a preliminary injunction or TRO, the Regional attorney and the U.S.
attorney must begin preparing for the next stage in the proceeding (e.g., a full trial, or a permanent
injunction). If the court denies the injunction, the U.S. EPA may appeal the denial or pursue other legal
remedies.
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OSWER Directive 9610.11
6.2.3 Permanent Injunctions
A permanent injunction is generally unlimited in length, and is granted only after a full trial on its
merits. Consequently, the judgment granting the permanent injunction constitutes a final disposition of
the suit, although it may be appealed to a circuit court. Permanent injunctions should be considered
when:
• Irreparable injury, loss, or damage will result if relief is not granted; and
• The owner/operator is recalcitrant and has demonstrated a history of
noncompliance with administrative orders.
In addition, courts have certain requirements that must be met before they will grant permanent
injunctions. Traditionally, courts have required that: (1) the petitioner demonstrate that other
enforcement actions (e.g., assessing penalties) will not be adequate to mitigate the environmental
hazard caused by the owner/operator; (2) irreparable injury, loss, or damage will result if relief is not
granted; and (3) that administrative remedies have been exhausted (although Section 9006 does not
require that the Agency attempt administrative actions before initiating judicial actions). The criteria
used and the emphasis placed on each criterion will vary from district to district.
6.3 SETTLEMENT AGREEMENTS
In many cases, the parties will settle judicial actions by consent before the trial begins. Such
settlement agreements usually take the form of negotiated consent decrees.20 Although the content
of consent decrees will vary depending on the circumstances of the case and the items agreed upon,
most consent decrees have the following elements in common:21
• Preliminary Statement - explanation of each party's purpose in the agreement
and summary of important facts of the case;
• Jurisdiction - stipulation that the court has jurisdiction over both the subject
matter and the parties;
Parties Subject to the Terms of the Consent Decree - statement that the parties
agree to be bound by the document and identification of the terms applicable
to each party;
• Iniunctive Relief - references to the regulatory requirements with which the
owner/operator must comply and detailed information on how compliance will
be achieved so that there will be no misunderstanding of what actions the
owner/operator must take;
• Schedule for Compliance - an expeditious schedule for completing the terms of
the agreement;
20 These judicial settlement agreements and corresponding consent decrees resulting from
negotiations are not to be confused with the consent agreements and corresponding consent orders
that are negotiated in the administrative process.
21 RCRA Compliance/Enforcement Guidance Manual (1984), Chapter 8.
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OSWER Directive 9610.11
Stipulated Penalties - penalties for noncompliance with the agreement;
• Penalties for Past Violations:
Approval of Completed Work - procedure for the U.S. EPA's oversight of the
owner/operator's activities;
• Force Maieure - reduction in penalty for economic hardship;
• Reporting and Record Preservation Terms - requirements for periodic reports
submitted to the U.S. EPA in order to monitor the owner/operator's progress;
• Access Agreement - statement of the U.S. EPA's right to access to the facility if
corrective actions must be monitored;
• Preservation of Evidence - procedures for retaining evidence gathered during
corrective actions;
• Compliance with Other Laws - statement that the owner/operator is required to
comply with other Federal, State, or local laws not addressed by the consent
decree;
• Extent of Release Given Under the Decree - statement of any release from
liability under the consent decree;
• Good Faith Negotiation Clauses - declaration that all parties negotiated in good
faith and believe the settlement to be fair and equitable (useful in cases where
the U.S. EPA has not settled with all parties); and
• Termination and Effective Date Clauses.
Further information on consent decrees can be found in the U.S. EPA's Guidance on Drafting Consent
Decrees in Hazardous Waste Cases (OSWER Directive 9835.2, May 1985) and 'Guidance for Drafting
Judicial Consent Decrees' (October 1983) which is contained in the U.S. EPA's General Policy
Compendium.
6.4 CRIMINAL ACTIONS
Criminal response mechanisms are usually taken when a person or entity has knowingly and
willfully committed a violation of the law. In criminal cases, DOJ prosecutes the owner/operator in the
U.S. Court system, seeking criminal sanctions such as fines or imprisonment. Criminal cases are
generally difficult to pursue because they require special investigation and case development
procedures. If the circumstances of a violation indicate that a criminal response would be appropriate,
enforcement personnel should examine authorities under other environmental statutes (or Federal
statutes) to determine if they may be applicable. Further information on procedures for the investigation
and referral of criminal actions under RCRA can be found in Chapter 9 of the RCRA
Compliance/Enforcement Guidance Manual. Further guidance can be found in 'Policy and Procedures
on Parallel Proceedings at the EPA,' (January, 1984 and recent updates) which is contained in the U.S.
EPA's General Policy Compendium.
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OSWER Directive 9610.11
BIBLIOGRAPHY
DOCUMENT
'Agencywide Compliance and Enforcement Strategy,' U.S.
EPA, May 1984.
•Arbitration Procedures for Small Superfund Cost Recovery
Claims,1 53 PR 29428, August 4,1988.
•Case Referrals for Civil Litigation,' U.S. EPA, September
1982.
Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the
Revocation or Suspension of Permits, 40 CFR Part 22.01 et
sea. (45 PR 24363, April 9,1980). Amended to include
administrative actions under RCRA Section 9006 (53 FR
5374. February 24, 1988).
Cost Recovery Policy for the Leaking Underground Storage
Tank Trust Fund. OSWER Directive 9610.10, October 1988.
•Development of LUST Cost Recovery Policy and Financial
Management Guidance,' Memorandum from David P. Ryan,
Comptroller, and Ron Brand, Office of Underground
Storage Tanks, March 25,1988.
Enforcement of the UST Interim Prohibition. OSWER
Directive 9943.2, December 1986 (Supersedes Directive
9943.1).
Enforcement Response Policy. OSWER Directive
9900.0-1 A, October 1988 (supersedes Enforcement
Response Policy, December 21,1984).
Enforcement Strategy and Procedures for the Interim
Prohibition. Section 9003fg) of SDWA. OSWER Directive
9943.1, September 1986.
•EPA Policy on the Inclusion of Environmental Auditing
Provisions in Enforcement Settlements,1 U.S. EPA, Office of
Enforcement, November 1986.
Expanded Civil Judicial Referral Procedures. OSWER
Directive 9891.1, August 1986.
Federal Facilities Compliance Strategy. EPA/OOEA88-001,
November 1988.
SOURCE
U.S. EPA, Office of Enforcement
1988 Federal Register
Contained in EPA's General
Enforcement Policy Compendium
(#GM-13)
1980 and 1988 Federal Register
Call OUST Docket
at (202) 475-9720
Check with Freedom of
Information Act (FOIA) Officer
Call RCRA Docket at
(202) 475-7231
Call RCRA Docket at
(202) 475-7231
Call RCRA Docket at
(202) 475-7231
U.S. EPA, Office of Enforcement
Call Superfund Docket
at (202) 382-6940
U.S. EPA, Office of Federal
Activities
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OSWER Directive 9610.11
Federal Rules of Evidence, 28 U.S.C.A. §1-700.
Federal Rules of Civil Procedure, 28 U.S.C.A. §1-86.
•Final Guidance on the Use of Alternative Dispute
Resolution Techniques in Enforcement Actions,' U.S. EPA,
August 14,1987.
•Financial Management Procedures for Documenting
Superfund Costs,1 U.S. EPA, Financial Management
Division, September 1986.
Fundamentals of Environmental Compliance Inspections.
U.S. EPA, February 1989.
FY 1989-FY 1990 Compliance and Enforcement Strategy for
the Underground Storage Tank Program. OSWER Directive
9610.8, January 1989 (supersedes OSWER Directives
9943.2 and 9610.5).
General Enforcement Policy Compendium. U.S. EPA, Office
of Enforcement, updated periodically.
•General Operating Procedures for EPA's Civil Enforcement
Program,1 U.S. EPA, July 1982.
Guidance for Conducting Federal-Lead Underground
Storage Tank Corrective Actions. OSWER Directive
9360.0-16A, June 1988.
Guidelines for UST Trust Fund Cooperative Agreements.
OSWER Directive 9650.6, April 1987.
Guidance on Drafting Consent Decrees in Hazardous
Waste Cases. OSWER Directive 9835.2, May 1985.
'Guidance for Drafting Judicial Consent Decrees,1 U.S. EPA,
October 1983.
•Headquarters Review and Tracking of Civil Referrals,' U.S.
EPA, March, 1984.
•Interim Financial Policies and Procedures Governing Use of
the Leaking Underground Storage Tank (LUST) Trust Fund,'
Comptroller Policy Announcement No. 87-13, June 3,1987.
Check local library
Check local library
Check with FOIA Officer
U.S. EPA, Office of the
Comptroller, Financial
Management Division
U.S. EPA, Office of Enforcement
Call OUST Docket
at (202) 475-9720
U.S. EPA, Office of Enforcement
Contained in EPA's General
Enforcement Policy Compendium
(#GM-12)
Call Superfund Docket
at (202) 382-6940
Call OUST Docket
at (202) 475-9720
Call RCRA Docket
at (202) 475-7231
Contained in EPA's General
Enforcement Policy Compendium
(#GM-17)
Contained in EPA's General
Enforcement Policy Compendium
(#GM-26)
Check with FOIA Officer
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OSWER Directive 9610.11
Interim Guidance for Conducting Federal-Lead UST
Corrective Actions for Releases of Petroleum on Indian
Lands. OSWER Directive 9610.9, July 1989.
Issuance of and Administrative Hearings on RCRA Section
3008(h) Corrective Action Orders for Hazardous Waste
Management Facilities, 40 CFR Parts 22 and 24 (53 PR
12256, April 13, 1988).
•Letter of Credit Drawdown Procedures for State Receiving
LUST Trust Fund Cooperative Agreements,' Memorandum
from David P. Ryan, Comptroller, August 12, 1987.
•LUST Cooperative Agreement Issues,' Memorandum from
Howard Corcoran, Office of General Counsel, and Joe
Retzer, Office of Underground Storage Tanks, August 26,
1987.
LUST Trust Fund Cooperative Agreement Guidelines.
OSWER Directive 9650.10, February 1989.
•Memorandum of Understanding between the Department
of Justice and the Environmental Protection Agency,' June
15, 1977.
•Policy and Procedures on Parallel Proceedings at the EPA,'
U.S. EPA, January 1984 and recent updates.
•Policy Framework for State/EPA Enforcement Agreements,1
U.S. EPA, August 1986.
Potentially Responsible Party Search Manual. OSWER
Directive 9834.3-1 A, August 1987.
•Procedures for Documenting Costs for CERCLA Section
107 Actions,1 U.S. EPA, January 1985.
RCRA/CERCLA Case Management Handbook. OSWER
Directive 9837.0, August 1984;
RCRA Compliance/Enforcement Guidance Manual. OSWER
Directive 9837.0, August 1984.
RCRA Confidential Business Information Security Manual,
U.S. EPA.
•Reporting and Recordkeeping Requirements for LUST
Cooperative Agreements,' Memorandum from David P.
Ryan, Comptroller, and Harvey G. Pippin, July 2, 1987.
Call OUST Docket
at (202) 475-9720
1988 Federal Register
Check with FOIA Officer
Check with FOIA Officer
Call OUST Docket
at (202) 475-9720
Contained in EPA's General
Enforcement Policy Compendium
(#GM-3)
Contained in EPA's General Policy
Compendium (#GM-30 and #GM-
49)
U.S. EPA, Office of Enforcement
Call Superfund Docket
at (202) 382-6940
U.S. EPA, Office of Waste Policy
Enforcement
Call RCRA Docket
at (202) 475-7231
Call RCRA Docket
at (202) 475-7231
U.S. EPA. Office of Solid Waste
and Emergency Response
Check with FOIA Officer
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OSWER Directive 9610.11
•Resource Management Directive 2550D - Financial
Management of the Superfund Program,' U.S. EPA. Office
of the Comptroller, July 25,1988.
•Revised Regional Referral Package Cover Letter and Data
Sheet,* U.S. EPA, May 1985.
State Participation in the Superfund Program Manual.
Appendix U: Cost Documentation Requirements for
Superfund Cooperative Agreements. OSWER Directive
9375.1-4-U, September 1986.
State Program Approval Handbook. OSWER Directive
9650.8, March 1989.
•State Program Approval Regulations,' 40 CFR Part 281, 53
FR 37212-47, September 23, 1988.
•Strategy Framework for EPA Compliance Programs,1 U.S.
EPA, May 1984.
Superfund Cost Recovery Strategy. OSWER Directive
9832.13, July 1988.
Supplemental Requirements for LUST Trust Fund
Cooperative Agreements. OSWER Directive 9650.6-1,
August 1987.
UST Program Regional Priorities and Enforcement Priorities
for FY 1990. OSWER Directive 9610.8-1, July 1989.
UST Technical Standards Rule, 40 CFR Part 280, Subparts
A through G (promulgated September 23,1988 at 53 FR
37082). UST Financial Responsibility Rule, 40 CFR Part
280, Subpart H (promulgated October 26,1988 at 53 FR
43326).
•Use of the LUST Trust Fund at Facilities Without Financial
Responsibility,1 Memorandum from Ron Brand, Office of
Underground Storage Tanks, January 24, 1990.
•Working Principles Underlying EPA's National
Compliance/Enforcement Programs,1 U.S. EPA, November
1983.
Check with FOIA Officer
Contained in EPA's General
Enforcement Policy Compendium
(#GM-40)
Call Superfund Docket
at (202) 382-6940
Call OUST Docket
at (202) 475-9720
1988 Federal Register
U.S. EPA, Office of Enforcement
Call Superfund Docket
at (202) 382-6940
Call OUST Docket
at (202) 475-9720
Call OUST Docket
at (202) 475-9720
1988 Federal Register
Check with FOIA Officer
Contained in EPA's General
Enforcement Policy Compendium
(#GM-24)
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