OECA COOKBOOK
ON
IMMINENT AND SUBSTANTIAL ENDANGERMENT
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 26460.' " •
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
OECA Cookbook on/Imminent and/Substantial Endangerrrient Authorities
FROM:, Ann Bailey, Chief
Waste Identification
RCRA Enforcement Division
Office of Regulatory Enforcement
TO: ' Addressees
i
Attached is the OECA Cookbook on Imminent and Substantial 'Endangerment
Amftorifies that was prepared by the RCRA Enforcement Division with input from members of
the 'headquarters' Workgroup on Imminent and Substantial Endangerment.
As- you know, the discussions at the National Enforcement 'Meeting last summer
reinforced our belief that we need to promote and encourage the effective use of the various
statutory imminent and substantial endangerment authorities (e.g., RCRA § 7003, CAA §§
. 112(r.) and 303, and CERCLA § 106). The Cookbook is intended to further this end by
seiMftg?as";a,ipol for Agency staff when choosing the^ppogriate' authority., and developing
-orHefcs-tip/abate, an endangerment. It includes a sunSn4ia'ry";qr'the' unminent'and.-substantial
eridangerment authorities-, as well as relevant case law; tables 'comparing 'andfeontrasting the
elements1 of each authority; copies of the guidance issued -for 'each authority; Jan analysis of
ca$e-Łpecific findings, along with Uie relief sought; aM any; model orders of" standard order
language 'currently available for each authority. We pfari to .update the Cookbook periodically,
•as additional guidances become available, particularly- as ;we gain more "experience with using
the 'authorities and are able to develop model orders fonthe fiill 'range of authorities.
The-Cookbook, as well as other relevant resources, witi'beiaVailable electronically, on the
'EPA-fhtranet (for Agency use onJy), by January 15, 1998. The RCRA Enforcement Division
is rria'naging this effort and Vr-ill also maintain the website!
'-We will soon complete tiie headquarters briefing sessions on these authorities intended
tb'Ł9&aden expertise within oar media Divisions. Next,' we plan to schedule Regional
Recycled/Recyclable
Printed with SoyJCanola Ink on paper thai
contain! a toast 75% recycled fitter '
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roundtables, patterned after the National Meeting discussions, to, further develop and share
expertise. We will be in touch with Regional contacts within the next week to begin
coordinating these roundtables.
If you have any questions or suggestions, please do not hesitate to contact me or
Caroline Ahearn of my staff at (202) 564-4012.
-2-
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Addressees:
Sam Silverman, Region I
Charles Zafonte, Region II
Walter Mugden, Region II
Claudette Reed, Region III
Marcia Mulke, Region III
Phyllis Harris, Region IV
Gail Ginsberg/Eileen Fury, Region V
John Hepola, Region VI
Marvin Benton, Region VI
Art Spratlin, Region VII
Becky Dolph, Region VII
Tom Speicher, Region VIII
Carol Rushin, Region VIII
Nancy Marvel, Region IX
Jack Fox/Jennifer MacDonald, Region X
Ron Kreizenbeck, Region X
Elaine Stanley, OC
Bruce Gelber, DOJ
Walker Smith, DOJ
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OECA COOKBOOK ON
IMMINENT AND SUBSTANTIAL
ENDANGERMENT
Table of Contents
Tab
EPA Memorandum Announcing the Formation of the .
OECA Workgroup on Imminent and Substantial Endangerment.: 1
Legal Analysis on Injunctive and Preventative Relief
Available under the Statutory Imminent Hazard Provisions....;............-......2
Survey of Imminent and Substantial Endangerment Authorities................3
Fact Patterns where Courts found imminent and substantial
endarigerments............................. 1...............4
EPA Guidance on Use of These Authorities
RCRA § 7003....-[[[5
CWA§504[[[6
SDWA§1431 ; 7
CERCLA § 106(a) ; 8
CAA§303 9
CAA § 112 (r)... 10
Samples of Administrative Orders Issued Under These Authorities
RCRA § 7003* .. 11
CERCLA § 106(a)...... : 12
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INJUNCTIVE AiVI) PREVENTATIVE RELIEF A VAILABLE UNDER THE
STATUTORY IMMINENT HAZARD PRO VISIONS DRAFT 10/10/97
FOR INTERNAL USE ONLY - DOES NOT REPRESENT
OFFICIAL AGENCY GUIDANCE
I. Introduction -
The United State Environmental Protection Agency’s enforcement program is often ficed
with situations that call for a quick response-- a raw sewage pipeline overflows into public
waterways or the improper removal of asbestos near a school playground. Fortunately, the
Agency also has a variety of statutory authorities to address these situations. Because the Agency
historically has had a media-based organizational structure, each media enforcement program has
tended to look only to the statute that it is most familiar with (e.g., Air Enforcement Division and
the Clean Air Act) when determining whether a situation presented an imminent and substantial
endangerment, and if it did, what remedies could be sought. Most “imminent and substantial
endangerment” provisions allow the Agency to issue an order either requiring certain conduct to
abate the hazard or prohibiting certain conduct to eliminate the hazard. These orders are similar
to injunctions.
IL Background
Congress broadly drafted the imminent hazard provisions included in the environmental
statutes’ to give appropriate government officials the right to seek judicial relief 2 , or take other
appropriate action to avert threats to the environment or public health. This standard has been
interpreted as “more lenient than the traditional requirement of threatened irreparable harm,
United States v. Price , 523 F. Supp. 1055, 1070 (D. N.J. 1981), aff’d 688 F.2d 194, 204 (3rd Cir.
‘Imminent hazard provisions appear at section 1431 of the Safe Drinicing Water Act, 42
U.S.C. § 300i(a); section 504(a) of the Clean Water Act (CWA), 33 U.S.C. § 1364(a), section
311(c) and (e) of the CWA, 33 U.S.C. § 132 1(c) and (e); section 303 of the Clean Air Act
(CA.A), 42 U.S.C. § 7603(a); section 7003 of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6973; section 8 of the Toxics Substances Control Act, 15 U.S.C.
§ 2606(b); and section 106 of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9606(a).
2 Most of the emergency powers provisions under the environmental statutes enable the
Administrator to issue an order necessary to protect public health and the environment.
However, this authority is not included under § 504 of the CWA.
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1982).
III. Overview of Statutory Authority
The following is a summary of the “imminent and substantial endangerment” provisions
under RCRA, CERCLA, CWA, SDWA and CAA. The framework of these statutes, legislative
history and case law demonstrate the strong similarities between these provisions and how they
can be used on a combined basis. Additional information concerning endangerment provisions
under other environmental statutes is contained in the attached chart.
A. RCRA 7003 -
1. General Purpose
Section 7003(a) of RCRA authorizes the EPA Administrator to issue an order or initiate
an judicial action in district court whenever the Administrator receives evidence that the past or
present handling, storage, treatment, transportation, or disposal of any solid waste or hazardous
waste may present an imminent and substantial endangerment to health or the environment.
Section 7003 (a) provides:
...Upon receipt of evidence that the past or present handling, storage,
treatment, transportation or disposal of any solid waste or hazardous
waste may present an imminent and substantial endangerment to
health or the environment, the Administrator may bring suit on behalf of
the United States in the appropriate district court against any person
(including any past or present generator, past or present transporter,
or past or present owner or operator of a treatment, storage or disposal
facility) who has contributed to or is contributing to such handling,
storage, treatment, transportation or disposal to restrain such
person from such handling, storage, treatment, transportation, or
disposal, to order such person to take such other action as may be
necessary, or both...The Administrator shall provide notice to the
affected state of any such suit. The Administrator may also, after
notice to the affected State, take other action under this section
including, but not limited to, issuing such orders as may be necessary
to protect public health and the environment.
2. Materials Covered
Section 7003 applies to any solid waste as defmed in RCRA § l004(27) , including
RCRA § 1004(27) defines the term “solid waste” to mean “any... other discarded
material, including solid, liquid, semisolid, or contained gaseous material resulting from
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petroleum, or hazardous waste as defined in RCRA § 1O04(5) . The definition of solid waste•
excludes Clean Water Act permitted discharges. The RCRA statute and regulations contain two
different ets of definitions of “solid waste” and “hazardous waste.” The regulatory definitions
set forth in 40 C.F.R. Part 261 identi& materials that are subject to regulation under Subtitle C of
RCRA. It is EPA’s position, and at least two courts have recognized, that the broad statutory
definitions, not the regulatory definitions, govern in section 7003 actions. 3
3. Scope ofthe Order
EPA may commence a civil action in the appropriate district court against any person,
(including any past or present generator, past or present transporter, or past or present operator of
a eatrtment, storage or disposal facility) to restrain that person from handling, storage, treatment,
transportation or disposal, or to take other necessary action. EPA may also, after notice to the
affected state, issue an administrative order necessary to protect public health and the
environment. RCR.A provides that any person who fails to comply with a section 7003
administrative order, in an action brought in district court to enforce the order, can be fined not
more than $5,500 for each day the violation occurs or such failure to comply continues.
4. Legal Issues -
(a) The meaning of “ may present an imminent and substantial
endangerment ”
Demonstrating that the management of a waste may present an “imminent and substantial
endangerment to health or the environment” generally requires careful documentation, scientific
evidence, and expert witnesses. However, courts have repeatedly recognized that the
industrial, commercial, mining, and agricultural operations, and from community activities, but
does not include solid or dissolved material in domestic sewage, or solid or dissolved materials
in irrigation return flows or industrial discharges which are point sources subject to permits under
section 1342 of title 33, or source, special nuclear, or byproduct material as defined by
the Atomic Energy Act...”
RCRA § 1004(5) defines the term “hazardous waste” to mean “a solid waste, or
combination of solid wastes, which because of its quantity, concentration, or physical or
chemical, or infectious characteristics may (A) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a
substantial present or potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise managed.”
5 See, United States v. Valentine , 856 F. Supp. 621, 627 (citing 40 C.F.R. § 261.1 (b)(2));
Connecticut Coastal Fisherman’s Assoc. v. Remington Arms Co. . 989 F.2d 1305, 1314
(2nd Cir. 1993).
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endangerment standard of RCRA § 7003 is quite broad, United States v. Valentine , 856 F.Supp.
621, 626 (D. Wyo. 1994). Courts interpreting the “imminent and substantial endangerment”
provision of section 7003 have found:
An “endangerment” is an actual, threatened, or potential harm to health or the
environment. J at 626. As underscored by the words “may present” in the
endangerment standard of section 7003, neither certainty nor proof of actual harm
is required, only a risk of harm. No proof of off-site migration is required
if there is proof that the wastes, in place, may present an imminent and substantial
endangerment. I at 626-627.
An endangerment is “imminent” if the present conditions indicate that there
may be a future risk to health or the environment even though the harm
may not be realized for years (Ida at 626; United States v.Conservation
Chemical II , 619 F. Supp. 162, 194 (W.D. Mo. 1985). It is not necessary for the
endangerment to be immediate or tantamount to an emergency ( Dague v. City of
Burlington , 935 F. 2d 1343, 1356; United States v.Waste Industries , 556 F.
Supp. 1301 (D. N.C. 1982), rev’d 734 F.2d 159 (4th Cir. 1984), Valentine , 856
F.Supp.At 626).
• An endangerment is “substantial” if there is reasonable cause for concern
that health or the environment may be at risk ( Conservation Chemical , 619 F.
Supp. at 194). It is not necessary that the risk be quantified, I .
• As clarified by the 1984 amendments to RCRA, Section 7003 is intended
to abate conditions resulting from past or present activities (H.R. Rep.
No. 1133, 98th Cong., S2dess. 119 (1984).
(b) The meaning of “ any person ”
Section 7003 specifies that “any person” includes any past or present generator,
past or present transporter, or past or present owner or operator of a facility. 6 The definition of
“person” does include individuals (e.g., corporate officers or employees). With respect to
corporate officer liability, EPA’s position, which has been adopted by at least one court, is that it
is not necessary to “pierce the corporate veil” to find individual corporate officer liability (i.e.,
corporate officers are not immune from personal liability for corporate activities, Northeastern
6 1984 amendments to RCRA clarified that the term “any person” includes any past
or present generator, transporter, or owner or operator of a TSD. Furthermore, the legislative
history of those amendments notes that “ [ Section 7003] has always reached those persons who
have contributed in the past or are presently contributing to the endangerment, including but not
limited to generators, regardless of fault or negligence.” H.R. Rep. No.1133, 98th Cong., 2d
Sess., 130 Cong. Reg. 11137 (October 1984).
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Pharmaceutical & Chemical Co. , 810 F.2d 726(8th Cir. 1986), cert. denied, 484 U.S. 848
(1987). With respect to employee liability, EPA agrees with at least one court that has held that
an employee of a corporation can be subject to individual liability under Section 7003 if he or she
had the authority to control and in fact undertook responsibility for waste disposal procedures,
Acme Printing Ink Co. v. Menard. Inc. , 870 F.Supp. 1465, 1491 (E.D.Wis.1994).
(c) The meaning of “ who has contributed or is contributing to such
handling. storage. treatment. transportation. or disposal ”
EPA agrees with the court in United States v. Aceto Agricultural Chemicals Corp. . 872
F.2d 1373 (8th Cir. 1989), that the plain meaning of “contributing to” is “to have a share in any
act or effect.” It is not necessary for EPA to prove that the person had control over the activities
that may create an imminent and substantial endangerment, at 1383. Aceto
involved an action under CERCLA and RCRA regarding the clean up of hazardous substances at
a pesticide formulation facility. The court found that the defendants “arranged for” the disposal
of hazardous substances under CERCLA and “contributed to” the disposal of hazardous wastes
at the pesticide formulation facility by their ownership and control of technical grade pesticides
through the pesticide formulation process. Specifically, defendants contracted with the facility to
formulate their technical grade pesticides; they retained ownership of the pesticide throughout the
process; and inherent in the process is the generation of hazardous wastes. Defendants supplied
the specifications for their commercial grade products to the facility. The court concluded that it
may be reasonably inferred that defendants had authority to control the way in which the
pesticides were formulated, as well as any waste disposal. Id at 1383. Thus, the defendants’
relationship to the product determined liability under the RCRA imminent and substantial
endangerment authority.
Most of the subsequent case law regarding Aceto pertains to CERCLA. However, since
the cot rt in Aceto regarded the theory of liability for “arranged for” liability under CERCLA to
be virtually the same as “contributed to” liability under RCRA, these cases carry great
importance for interpreting the scope of “contributing to” liability under RCRA § 7003. The
most significant case is South Florida Management District v. Montalvo. 84 F.3d 402 (11th Cu.
1996) in distinguishing the degree of control over the product necessary to establish liability.
Montalvo involved a third party complaint filed by defendants Chemspray and Juan
Montalvo (“the sprayers”) against various fanning and ranching corporations (“the landowners”)
that contracted with the sprayers for aerial spraying services. In their third-party complaint, the
sprayers alleged that the landowners had “arranged for” the disposal of various spraying
chemicals by :( 1) owning the spraying chemicals throughout the application process; and (2) the
fact that the generation of hazardous wastes from the spraying chemicals was a necessary
incident to the application process because of the mixing, loading, and cleaning of the spraying
chemicals at the contaminated site. The landowners filed a motion to dismiss the sprayers third-
party complaint contending that the above facts were not sufficient to show that the landowners
had “arranged for” the disposal of hazardous substances. The Eleventh Circuit stated that the
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factors such as intent, ownership, and knowledge were all useful in determining whether a party
had “arranged for” the disposal of hazardous substances. The court did not extend CERCLA
liability to the landowners because the sprayers had not alleged that the landowners assisted in
the loadiiig, or rinsing out of the chemical tanks or that the landowners even knew about the
spraying chemical spills. Nor had the sprayers alleged that the landowners had the duty or
authority to monitor or control the sprayers activities. Thus, the court held that the landowners
had not “arranged for” the disposal of any hazardous substances.
Case law in this area supports the following examples of “contributors” for purposes of section
7003:
- an owner that fails to abate an existing hazardous condition of
which he or she is aware;
- a person who owned land on which a facility was located during
the time that solid waste leaked from the facility;
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- a person who operated equipment during the time that
solid waste leaked from that equipment;
- a person who installed equipment that later leaked;
- a person who simply provided a receptacle for existing wastes;
- a generator who sold below grade materials to a reclamation
facility to dispose of them; and
- a county that sited, licensed, and franchised a privately owned and
operated landfill for the disposal of industrial wastes.
5. Use of the § 7003 Order
Ten § 7003 orders have been issued by the Administrator, through her delegatees, in the
past year. The following are summaries of two recently issued § 7003 orders.
• Chief Supply Corporation. Haskell. OK
On May 27, 1997, the EPA issued a section 7003 order to Chief Supply Corporation, Inc.,
located in Haskell, Oklahoma, to protect public health and the environment. Chief Supply
Corporation operates a hazardous and industrial waste collection, storage, h rdous waste fuel
blending, and recycling facility. On March 26, 1997, an explosion and fire occurred at the
facility which resulted in the death of one of Respondent’s employees, and injuries to two other
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employees. Many of the 1450 drums of hazardous waste in storage at the time of the fire were
consumed by the fire. All persons in an area extending 1 1/2 miles to the north and one mile to
the east of the facility were evacuated as a result of the fire. The cause of the explosion and fire
has not been determined.
Three days after the fire, a drum of acid was overturned while moving debris to
extinguish remaining hot spots. Chemicals from the drum mixed with waste water from the
firefighting effort and created a reaction resulting in the release of a large acid plume. The plume
migrated offsite to the northwest and crossed Highway 64. The plume dissipated in
approximately ten minutes. On April 8, 1997, a drum of solidified material was placed in a roll-
off container during the cleanup following the fire. The contents of the drum began smoking and
the odor of ammonia was immediately apparent. Facility personnel then poured water on the
waste, which caused the release of a large white plume and the reaction became more intense.
The waste was then covered with soil.
The Oklahoma Department of Environmental Quality sought to enjoin Chief from
resuming operations until certain activities were accomplished to avoid an immediate threat to
health or the environment. However, their injunction was denied by the District Court of
Wagoner County on May 15, 1997 because the Court d etermined that the ODEQ did not prove
that Chief’s operations posed an iinniediate threat to life or health sufficient to justify an
injunction.
The § 7003 order, effective upon receipt, required Chief to cease and desist operation of
the fuel blending process and not resume operation if currently inactive, including the fuel
dispersal units at the facility until authorized by EPA and ODEQ. The order also required Chief
to submit a report for review and approval to EPA and ODEQ regarding the operations at the
facility prior to the fire on March 26. The report must contain Chief’s determination of the cause
of the fire and recommend steps to prevent or minimize the potential for any future fires or
explosions. The order required Chief to implement measures to prevent the combining of non-
debris hazardous waste with hazardous waste debris and properly dispose of such debris in
accordance with all applicable state and Federal regulations. Additionally, Chief must update its
facility contingency plan as a result of the fire and provide classroom instruction regarding
hazardous waste management procedures and fire prevention.
S Rail Services. Inc.. Calvert City. Kentucky
On April 3, 1997, Region 4 issued a § 7003 order to Rail Services, Inc., a business that
engages in rail car cleaning, maintenance, painting and lining, plus solvent recovery and waste
treatment. Some of the rail cars transported to the facility contain hazardous wastes which are
removed in the cleaning process. Continuing releases of hazardous wastes and constituents from
solid waste management units at the facility created conditions that are hazardous to human
health and the environment. In addition, previous incidents at the facility, involving ix juries to
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employees, indicated that management practices created a threat to human health. In February
1991, one of Respondent’s employees was killed and two of Respondent’s employees were
injured while performing cleaning operations of a liquid petroleum gas rail car containing solid
waste anWor hazardous waste at the facility. In May 1990, employees welding on a hydrogen
tank caused an explosion and two employees required emergency medical treatment. In October
1990, an employee using an impact wrench on a rail car holding excess pressure caused an
explosion. The employee also required emergency medical treatment.
The Section 7003 order required Respondent to immediately cease and desist the receipt,
generation, and management of all solid waste at the facility including, receiving, entering,
emptying, cleaning, painting and lining rail cars and trucks, until compliance with the terms of
the order are achieved. Respondent was also required by the order to post signs regarding
imminent danger at the site, confine smoking and open flames at the facility to designated areas,
provide classroom instruction on hazardous waste management practices and fire prevention,
equip the facility with appropriate fire equipment, update its contingency plan, identif ’ all
hazardous waste at the facility, and bring storage containers into compliance with the regulations.
B. CERCLA
EPA has issued more emergency power administrative orders under § 106(a) of CERCLA
than any other statute. Approximately 1,300 such orders have been issued since the enactment of
CERCLA.
1. General Purpose
CERCLA § 106 is somewhat different from section 7003 of RCRA, in that it authorizes
judicial action or an administrative order when there may be an imminent and substantial
endangerment to the public health, welfare or the environment because of an actual or threatened
release of a hazardous substance. CERCLA also requires that the President prepare a revised
“national contingency plan” to reflect and carry out the responsibilities and powers created by the
Act.
CERCLA § 106(a) is a broadly written imminent hazard provision. It permits the
government to bring suit to obtain abatement action whenever the President determines there
may be an imminent and substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a hazardous substance. This section
also gives the federal courts broad power to grant “such relief as the public interest and equities
of the case may require.” Section 106(a) provides:
(a) In addition to any other action taken by a State or local government, when
the President determines that there may be an imminent and substantial
endangerment to the public health or welfare or the environment because of an
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actual or threatened release of a hazardous substance from a facility, he may
require the Attorney General of the United States to secure such relief as may
be necessary to abate such danger or threat, and the district court of the
United States in the district in which the threat occurs shall have jurisdiction
to grant such relief as the public interest and the equities of the case may
require. The President may also, after notice to the affected State, take other
action under this section including, but not limited to, issuing such orders as
may be necessary to protect public health and welfare and the environment.
2. Materials Covered
Hazardous substance, as defined in CERCLA § 101(14), includes hazardous waste under
RCRA § 3001. The term “hazardous substance” means (A) any substance designated pursuant to
section 1321 (b)(2)(A) of Title 33, (B) any element, compound, mixture, solution or substance
designated pursuant to CERCLA § 102 (C) any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the SWDA (D) any toxic pollutant listed
under section 1317(a) of Title 33, (E) any hazardous air pollutant 1i ted under section 112 of the
Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to
which the Administrator has taken action pursuant to TSCA § 7. The term does not include
petroleum, including crude oil or any fraction thereof, or natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).
3. Scope ofthe Order
Under § 106, whenever the President determines that there may be an imminent and
substantial endangerment to the public health or welfare or environment because of an actual or
threatened release from a facility, he may commence a civil action to obtain such relief as may be
necessary to abate the danger or threat. The President may also, after notice to the affected state,
issue an order to compel cleanup and obtain such other relief as may be necessary to abate the
danger or threat and protect public health and welfare and the environment. Failure to comply
with an order may result in a penalty of up to $27,500 a day.
4. Legal Issues
CERCLA § 106(a) provides that the President is to determine whether there may be an
imminent and substantial endangerment. The President has delegated this authority to the EPA
Administrator. An “endangerment” is not actual harm, but a threatened or potential harm. ftL
Goodrich v. Murtha , 697 F. Supp. 89,96 (D. Conn. 1988). The United States must prove only
that there may be an endangerment, not that there is an endangerment. United States v.
Conservation Chemical U , 619 F. Supp. 162, 175 (W.D. Mo. 1985). The endangerment may be
to the public health or public welfare or the environment. 1d at 175. The United States need not
prove endangerment to people; a possible endangerment to public welfare alone or to the
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environment alone suffices. j . at 192. Federal facilities can be ordered to take action by EPA
under § 106 subject to concurrence by the Department of Justice. Public welfare encompasses,
“health, safety, recreational, aesthetic, environmental and economic interests.” Jd At 192. An
endangerment is “imminent” if the factors giving rise to it are present, even though harm may
not be realized for years. Reilly . 546 F. Supp. at 1109-10. An “endangerment” is substantial if
there is reasonable cause for concern that someone or something may be exposed to a risk of
harm by a release or threatened release of a hazardous substance. Conservation Chemical , 619 F.
Supp. at 195-196.
In United States v. Price , 577 F. Supp. at 1103 (D. N.J. 1983), the court was faced with
the issue of whether a past, nonnegligent, off-site generator should be held strictly liable for
hazardous waste deposited at a landfill, in an action brought by United States under CERCLA.
One main thrust of the court’s analysis dealt with reconciling CERCLA § 106(a) with RCRA
§ 7003. The Price court concurred with the finding in Reilly that “the imminent hazard
provisions of § 106(a) are even broader than those articulated in § 7003.” Reilly . 546 F. Supp.
at 1111. The court reached this conclusion by reviewing the statute and legislative history which
indicate that (1) Congress intended for the government to have the ziecessary tools to respond
promptly and effectively to problems of national magnitude; and (2) Congress intended that those
responsible for problems caused by the disposal of chemical poisons bear the costs and
responsibilities for remedying the harmful conditions they created. J at 1111.
5. Creative Uses of CERCLA § 106(a) Orders
In several recent cases, EPA has creatively used its order authority under CERCLA
§ 106(a). For example, residents living near a farm in Guayanilla, Puerto Rico, complained to
EPA about clouds of pesticides which were being sprayed on mangoes and other crops, drifting
into their neighborhood. On December 20, 1996, Region U issued an order under CERCLA §
106(a) to a partnership known as Tropical Fruit, S.P. The order required Tropical Fruit to,
among other things, cease spraying pesticides that contain CERCLA hazardous substances in any
manner that would allow the pesticides to drift or otherwise be released beyond the boundaries of
Tropical Fruit’s property. In another case which arose in Bossier City, Louisiana, EPA
documented benzene contamination in the indoor air of certain residences located near a closed
refinery. Region VI issued a Unilateral Administrative Order pursuant to CERCLA § 106(a) in
December 1996 (and amended in February 1997), requiring Canadian Oxy Offshore Production
Company (“COPCO”) to clean up the indoor air. Specifically, the order calls for COPCO to both
seal foundation cracks and ventilate residences with the highest benzene concentrations.
EPA has also used its CERCLA § 106(a) order authority in creative ways in earlier years.
For example, at the South Calvacade site several years ago, Region V.1 issued an order to a
refinery that was the source of a groundwater plume contaminated with petroleum. The order did
not violate CERCLA’s petroleum exclusion because Region VI was already using its CERCLA
authority to address a separate, non-petroleum downgradient plume of the refinery. The order
issued to the upgradient refinery was based on the fact that the upgradient plume threatened to
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disrupt the CERCLA cleanup of the downgradient plume, and thus was within EPA’s authority
under CERCLA § 106(a).
The following are other examples of when there may be an “imminent and substantial
endangerment” under CERCLA § 106(a):
a. Numerous hazardous substances are present at and being released into
the environment from a facility that is accessible to humans and other
living organisms.
b. A relatively small quantity of hazardous substances that are toxic at low dosage
levels are present and are being threatened to be released from a facility.
c. Contaminated groundwater from beneath a disposal facility is flowing in
the direction of a residential subdivision that uses well water.
d. Numerous hazardous substances are present at and thigrating from a
facility and have contaminated the soil and groundwater.’
C. SECTION 504 CWA
1. General Purpose :
Section 504 is the Emergency powers provision of the Clean Water Act. Section 504
provides:
Notwithstanding any other provision of this chapter, the Administrator upon
receipt of evidence that a pollution source or combination of sources is presenting
an imminent and substantial endangerment to the health of persons or to the
welfare of persons where such endangerment is to the livelihood of such persons,
such as the inability to market shellfish, may bring suit on behalf of the United
States in the appropriate district court to immediately restrain any person causing
or contributing to the alleged pollution to stop the discharge of pollutants
causing or contributing to such pollution or to take such other action as may be
necessary.
2. Materials Covered
The statutory predicate to action under Section 504 is the receipt of evidence that a
“pollution source or combination of sources” is presenting an imminent and substantial
endangerment to the health or welfare of persons. “Pollution” is defmed broadly under Section
502(19) of the Act as “man-made or man-induced alteration of the chemical, physical, biological,
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12
and radiological integrity of water.” While “pollution source” is not defined in the statute, it
seems reasonable to read this term as synonymous with point and nonpoint sources of pollution 7 .
3. Scope of the Order
Section 504 is the only “imminent hazard” authority which requires pre-response judicial
proceedings. As relief may only be provided by a district court, a judicial referral is required to
initiate a section 504 action. The authority to issue compliance orders and assess penalties
administratively is explicitly provided for elsewhere in the CWA and is not in section 504.
Upon receipt of evidence of an imminent and substantial endangerment, the Agency may bring
suit to restrain “any person” causing or contributing to the pollution to stop the discharge of
pollutants.
4. Legal Issues
Section 504 was added to the Federal Water Pollution Control Act by the 1972
amendments to the Act, known as the Clean Water Act. There is very little legislative history or
case law on Section 504, which was patterned after Section 303 of the Clean Air Act. Since its
enactment, only 15 actions have been brought citing Section 504 as grounds for relief. In each
case, section 504 was merely appended to complaints using provisions of other environmental
statutes as the primary enforcement authority. Guidance for such orders was issued on July 30,
1993.
A. Statutory Elements
(1) Action under section 504 should be taken when a source of a pollutant is
presenting a threat to the health or welfare of persons, whether or not the pollutant has actually
been discharged or released.
(2) Evidence that a pollution source is causing or merely “contributing” to the
pollution is sufficient to support the use of a Section 504 action. The legislative history of
RCRA § 7003 emphasizes the broad reach of this term. Reilly , 546 F. Supp. at 1100.
(3) Is Presenting an Imminent and Substantial Endangerment. Both CWA § 504 and
Section 20 1(c), the only other provision of the CWA using the term “pollution source”
clearly refers to point and non-point sources:
To the extent practicable, waste treatment management shall be on an areawide
basis and provide control or treatment of all point and nonpoint sources of
pollution, including in place or accumulated pollution sources.
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§ 303 of the Clean Air Act are based upon evidence that a pollution source or combination of
sources is presenting an imminent and substantial endangerment. This should be distinguished
from the thresholds found in CERCLA § 106(a), RCRA § 7003, SDWA § 1431, which are based
upon a showing of evidence or information that the pollution sources may present an imminent
and substantial endangennent. RCRA case law indicates that the statute on its face does not
discriminate between cases of present harm caused by past disposal practices and cases of present
harm caused by ongoing disposal practices. This same reasoning holds true for section CWA
504. For purposes of determing imminent and substantial endangerment under CWA § 504, a
continuous discharge is not required. The Agency may take preventative action to address a water
pollution episode and an endangerment may be an immediate or long-term problem. Such harm
must only pose a reasonable cause for concern for the public or welfare. The evidence must
support a contemporaneous cause for concern for the health and welfare of persons, or a current
threat to health or welfare.
(4) Health or Welfare of Persons
At the very least, section 504 may be used to address long term threats to health. The
discharge of a pollutant constitutes an imminent and substantial endangerment to the health of
persons when there is a reasonable medical concern over the public health based on an
acceptable, albeit yet unproven, theory that the pollutant may be, for example, teratogenic,
mutagenic, fetotoxic, or carcinogenic, Vertac Chemical Corp. , 489 F.Supp. 870 (E.D. Ark. 1980).
The statutory language pennitting Agency action when an endangerment is presented to
the “welfare” of persons allows the Agency to address a wide variety of situations affecting a
person’s livelihood. For example, harm to the tourist industry or sport fishermen caused by
polluted waters or sediments may impact people’s livelihoods and therefore be subject to action
under Section 504.
(5) Permit as a Shield
Dischargers of pollutants from point sources that are in compliance with a NPDES permit
may attempt to argue that Section 402(k) of the Act shields them from liability under Section 504
as well. However, section 504 applies “notwith tanding any other provisions of [ the CWA].
Thus, a section 504 action may be used to defeat the permit as a shield defense.
5. How a § 504 Order is Used
For EPA to exercise enforcement authority under section 504, there must be evidence that
a pollution source or sources is presenting an imminent and substantial endangerment to the
health or the welfare of persons. The evidence may be documentary, testimonial or physical.
Information can be obtained through a section 308 information request. Discharge monitoring
reports and monthly operations reports may be used as evidence. Nonpoint source management
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plans, as well as nonpoint source assessment reports and Section 305(b) reports may also be used
to identify sources of pollution. Both permitted and non-permitted dischargers fall within the
scope of Section 504.
The Agency may use Section 504 to address problems presented by beach closings, fish
kills, contaminated sediments and nonpoint sources. Section 504 may be used as a backup in the
implementation of a state narrative water quality criteria, and as a means to counter the permit-
as-a-shield defense.
This authority was used in a Region 1V action against Metro-Dade’s (FL) Water and
Sewer Authority. This enforcement case was filed in June 1993 to address an emergency
situation caused by the deteriorated condition of a large sewage pipeline (cross-bay line) running
under Biscayne Bay, Florida, as well as chronic and widespread overflows of raw sewage into
homes, streets, businesses and public waterways, including Biscayne Bay and the Miami River.
A first partial consent decree, entered by the court in January 1994, addressed replacement of the
cross-bay line, as well as some short term preventative measures, pursuant to §504. The second
and final consent decree, entered by the court in September 1995, addresses the remaining claims
under Section 309 of the Act and provides for a settlement of $2 million and SEPs totaling at
least $5 million. The county is expected to spend more than $80 million rehabilitating its system
to prevent the chronic overflows of sewage. The new cross-bay line has been constructed and is
now operational. EPA discovered the violations in this case from news reports.
D. Safe Drinking Water Act § 1431
1. General Purpose and Statutory Scheme
.The Safe Drinking Water Act (SDWA) was intended to provide a system of federal
regulations to ensure water quality and to develop programs to ameliorate groundwater pollution
for public water systems. Section 1431 of the SDWA provides national drinking water
regulations that dictate maximum contaminant levels (MCLs) for specified substances or
treatment techniques. The MCLs must protect health to the extent feasible under available
technology and treatment techniques.
Section 1431 of the Act provides that when the Administrator receives information that:
• a contaminant is present in or is likely to enter a public water system or an
underground source of drinking water, and
• the contaminant may present an imminent and substantial endangerment to
human health, and
• the appropriate State and local authorities have not acted to protect public health.
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The Administrator may 1) issue orders to protect the public health or 2) commence a civil
action for relief, including a restraining order, a permanent injunction, or a temporary injunction.
2. Materials Covered
Section 140 1(6) of the SDWA defines “contaminant” very broadly to include “any
physical, chemical, biological, or radiological substance or matter in water.” Under this broad
definition, EPA may take action under Section 1431 even when the contaminant in question is
not regulated by the National Primary Drinking Water Regulation (NPDWR) under the SDWA
(i.e., EPA has not issued a NPDWR for the contaminant or the regulation has been promulgated
but is not yet effective). This authority is clearly supported by the SDWA legislative history. 8
3. Scope of the Order
Application of the § 1431 authority nisot limited to existing’contamination of a PWS or
USDW but also may be sued to prevent the introduction of contaminants that are “likely to enter”
drinking water. Thus, § 1431 orders should ideally be issued early enough to prevent the
potential hazard from materializing. 9 dditionally, EPA may take such actions notwithstanding
any exemption, variance, permit, license, regulation, order, or other requirement that would
otherwise apply)° Any person who violates, fails, or refuses to comply with any order issued by
the Administrator may be subject to civil penalties not exceeding $15,000 per day in which the
violation occurs or the failure to comply continues
4. Legal Issues and Use of the §1431 Order
The court in United States v. Price , 688 F.2d 204, 211 (3d Cir. 1982) addressed how an
endangerment to public health is imminent enough to exert § 1431 authority. The court held that
§ 1431 authority, like RCRA § 7003 authority, is not limited to emergency situations. The court
held that injunctive relief may be granted where a risk of harm exists; “a more lenient standard
than the traditional requirement of threatened irreparable harm.” I d. Both the Price court and the
court in United States v. Waste Industries , 734 F.2d 159, 165 (4th Cir. 1984) found support for
this proposition in the legislative histories. “By enacting the endangerment provisions of RCRA
and SDWA, Congress sought to invoke the broad and flexible equity powers of the federal courts
in instances where hazardous wastes threatened human health.” Price 734 F.2d at 211, citing
H.R. Rep. No. 96-191,96th Cong., reprinted in (1974) U.S. Code Cong.& Ad. News 6454.”
8 See H.R. Rep. No. 1185, 93rd Cong., 2d Sess., 35-36.
J .. at 35-36.
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The courts have emphasized that § 1431 authority may only be invoked to protect public
water supplies. However, in Price , 688 F.2d at 204, the court held that the §143 1 authority is
broad enough to authorize a preliminary injunction ordering a diagnostic study of the threat to a
municipality’s public water supply posed by the presence of toxic substances emanating from a
former commercial landfill. Additionally, the court in United States v. Midway Heights County
Water District , 695 F. Supp. 1072 (ED. Cal. 1988) denied respondent’s motion to stay an
injunction against a public water system, where the parties stipulated that the level of
contaminants present in the water exceeds MCLs permitted under federal safety standards, even
though a system operator’s agreement with its customers purported to limit the use of the water
to irrigation purposes. The court upheld the injunction because 1) the system served at least 25
individuals who use water for human consumption and 2) eventhough the waterprimarily was not
used for drinking water, the presence of organisms that were accepted indicators of the potential
for the spread of serious disease presented an imminent and substantial endangerment from
“human consumption” through such normal uses as bathing, showering, cooking, dishwashing
and oral hygiene.
Endangerments can more readily be determined to be imminent where they involve
contn min nts that pose acute human health threats. Examples include:
• A nitrate MCL violation when a sensitive population is exposed (i.e., infants
less than six months of age)
• A waterbome disease outbreak with or without MCL violations
• A microbiological or turbidity MCL violation with or without a
• waterborne disease outbreak
• Injection of untreated sewage directly into an USDW that is used by a nearby
drinking water well.
EPA may issue orders as necessary to protect the health of persons who are or may be
users of such a system (including travelers), including orders requiring:
• The provision of alternative water supplies, at no cost to the consumer,
by persons who caused or contributed to the endangerment
• Information about actual or pending emergencies
• Public notification of hazards (e.g., door-to-door, posting
newspapers, electronic media)
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• A study to determine the extent of contamination
• An engineering study proposing a remedy to eliminate the endangerment
and a timetable for its implementation
• The halting of the disposal of contaminants that may be contributing to
the endangerment.
E. SECTION 303 CAA
1. General Purpose
Section 303 of the Clean Air Act authorizes the Environmental Protection Agency (EPA)
to bring an action for injunctive relief to abate imminent and substantial endangerments to public
health, welfare, or the environment caused by emissions of air pollutants. Section 303 allows
EPA to initiate judicial action against, or issue an administrative order to, any person who is
causing or contributing to the pollution to stop the emissions of the pollutants or to take other
action as necessary. Section 303 is also a “gap-filling” authority, providing injunctive relief for a
wide range of endangerment scenarios regardless of a pollution source’s compliance or non-
compliance with any provision of the CAA. It also provides ii junctive relief when an air.
pollutant(s) is not regulated under the CAA.
2. Materials Covered
Section 303 of the CAA authorizes the EPA to bring an action for injunctive relief to stop
the emission of air pollutants that is causing or contributing to an imminent and substantial
endangerment to public health, welfare, or the environment. Section 302 (g) defines “air
pollutant” to mean:
any air pollution agent or combination of such agents, including
any physical, chemical, biological, radioactive (including source material,
special nuclear material, and byproduct material) substance or matter
which is emitted into or otherwise enters the ambient air. Such term
includes any precursors to the formation of any air pollutant, to the extent
the Administrator has identified such precursor or precursors for the
particular purpose for which the term “air pollutant” is used.
3. Scope of the Order
The 1990 Clean Air Act Amendments expanded the scope of EPA’s §303 authority from
“imminent and substantial endangerment to the health of persons” to “imminent and substantial
endangerment to public health or welfare, or the environment.” The Amendments also
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eliminated the requirement for state or local inaction as a prerequisite to EPA initiating action•
under §303. The relevant state, however, must be consulted prior to issuance of an order. The
duration of administrative orders was lengthened pursuant to §303 from 24 hours to 60 days. In
so doing, Congress greatly increased the utility of §303. However, orders cannot extend beyond
60 days. If relief is required for more than 60 days, EPA must bring suit in district court, either
as an initial action or following the issuance of an Administrative order.
4. Legal Issues
Since this section was rarely used prior to 1990 and was significantly changed in 1990,
there is very little case law. EPA is, therefore, interpreting the terms contained in the § 303
imminent and substantial endangerment provision by looking to the statutory language itself and
legislative history. EPA is also interpreting these terms consistently with the legislative history
and case law previously discussed for the other environmental statutes with similar emergency
powers provisions.
5. Use of the § 303 Order
EPA has exercised its section 303 authority, as revised under the 1990 CAA Amendments
on three One § 303 order was issued on June 12, 1997, to address an asbestos
hazard at an abandoned industrial site, and another in August 1994, to terminate (and later
modify) a mining chemical company’s operations after it released a cloud of hydrogen sulfide gas
into the air, sending some 35 people to the hospital. The third order was issued on October 3,
1997 by Region 1V to Trinity American Corporation and Trinity Fibers of Carolina, Inc. (Trinity)
under CAA § 303 and 114 concerning its foam and fiber pad manufacturing operations which
are co-located in Glenola, NC.
.The administrative order was issued to Trinity arising out reports that contaminants
present in air emissions from the facility were adversely affecting public health and a state order
that required Trinity to cease manufacturing operations. On August 25, 1997, the Agency for
Toxic Substances and Disease Registry (ATSDR) issued a draft Health Consultation indicating
that unidentified contaminants present in air emissions from the foam and/or fiber plants were
presenting a public health hazard. On September 2, 1997, the county health department urged
residents to evacuate the area after the North Carolina Department of Environment, Health, and
Natural Resources (DEHNR) detected unidentified organic vapors at the boundary of Trinity’s
property and near adjoining residences at levels of concern. Approximately 100 people took
“ Prior to 1990, EPA used its §303 authority on four occasions: one to address high
particulate matter in North Birmingham, Alabama (1971), another to address an asbestos hazard
at a mine in Globe, Arizona (1983), and two § 303 orders were combined with RCRA actions
and issued against property owners to address the storage of hazardous chemicals (1980), and the
storage of pesticides and related chemicals (1980). Air pollution from the chemicals was a
concern at both facilities.
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shelter at a local recreation center. On September 3, 1997, the State Health Director issued an
Order of Abatement, requiring Trinity to cease all manufacturing operations at the foam and fiber
plants until Trinity can demonstrate its ability to operate without creating a public health
nuisance. To date, Trinity has not challenged the state order; however, the DEHNR requested
that EPA issue an order in support of its own.
While the foam and fiber operations emit a number of hazardous air pollutants, the
constituent so far demonstrating the most definitive link to adverse health effects is toluene
dilsocyanate (TDI). The foam operation uses TDI as a raw material in the production of all
grades of foam, which results in the emission of TDI into the ambient air. TDI is a highly
reactive compound that is extremely toxic to humans at low levels. The primary effects are
pulmonary; however, TDI is also a powerful irritant to the mucous membranes of the skin and
eyes and the respiratory and gastrointestinal tracts. To date, one resident has tested positive for
the TDI antibody and six residents have been shown to have hyper-reactive airway disease.
Based on these preliminary results, it is likely that residents have been sensitized to TDI and
other chemical irritants and any further exposure, either to TDI or the other chemical irritants
emitted by both plants, would pose an imminent and substantial endangerment.
The order requires that Trinity not operate until it has demonstrated it can do so without
presenting an imminent and substantial endangerment and that within 30 days, Trinity submit a
proposed plan for demonstrating its ability to operate safely. The order is supported by affidavits
from surrounding residents concerning adverse health effects and the results of medical
evaluations conducted on 13 residents of Glenola, as well as a process audit performed by the
Region. The order is effective for no more than 60 days. The Region plans to refer the matter to
the Department of Justice for follow-up civil action to keep the plants from operating should it be
necessary after the 60 days have lapsed.
F. SECTION 112(r) CAA
In 1986, Congress enacted the Emergency Plpnning and Community Right-to-Know Act
(EPCRA) to assist state and local planning entities in preparing to respond to chemical releases.
Because preventing accidents is preferable to responding to them, Congress added Section 112(r)
in 1990. It requires that owners and operators of stationary sources detect and prevent, or
minimize the effects of accidental releases whenever extremely hazardous substances are present
at the facility. The regulations issued to Section 11 2(r)(7) define these requirements and
establish the deadlines for compliance. The general duty clause in Section 11 2(r)(1) has much
broader applicability that the regulations which do not require complaince until June 1999. The
general duty clause has been in effect and enforceable since 1990. It applies to any facility where
extremely hazardous substances are present.
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Section 112(r) provides three principal authorities for EPA to implement:
iT The general duty clause in section 11 2(r)( 1 )12 - The General Duty Clause is the
umbrella authority. It covers the largest universe of substances and processes. It
establishes broad obligations on the owners and operators of stationary sources.
2. Regulations - The CAA also provides for EPA to publish regulations to specify
chemical accidental release prevention, detection, and mitigation requirements for
a subset of the extremely hazardous substances and processes. Specifically,
Section 1 12(r)(3) of the CAA mandates that EPA establish a list of regulated
substances and Section 11 2(r)(7) requires that EPA impose specific accidental
release prevention, detection, and mitigation requirements for certain sources.
3. Emergency Powers - Section 1 12(r)(9) gives EPA the authority to issue orders and
seek judicial relief to abate a danger or threat when an actual or threatened
accidental release may cause an imminent and substantial endangerment to human
health or welfare or the environment. Section 1 12(r)(9) provides:
In addition to any other action taken, when the Administrator
determines that there may be an imminent and substantial
endangerment to the human health or welfare or the
environment because of an actual or threatened accidental
release of a regulated substance, the Administrator may
secure such relief as may be necessary to abate such danger
or threat, and the district court of the United States in the
district in which the threat occurs shall have jurisdiction to
grant such relief as the public interest and the equities of the
case may require. The Administrator may also, after notice
to the affected State in which the stationary source is located,
take other action under this paragraph including, but not
limited to, issuing such orders as may be necessary to protect
human health....
12 Section 11 2(r)( 1) of the Clean Air Act Amendments states:
The owners and operators of stationary sources producing, processing, handling, or
storing (any regulated or any other extremely hazardous] substances have a general
duty in the same manlier and to the same extent as section 654 of Title 29 (OSHA
General Duty Clause] to identify hazards which may result from such [ accidental]
releases using appropriate hazard assessment techniques, to design and maintain a
safe facility taking such steps as are necessary to prevent releases, and to minimize the
consequences of accidental releases which do occur.
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Generally, if there is a release of an extremely hazardous substance, the EPA CEPPO
program office will conduct an investigation with OSHA. To accomplish this task, EPA and
OSHA have signed a Federal Memorandum of Understanding to coordinate the joint
investigition of certain chemical accidents in a manner in which the Chemical Safety and
Hazards Investigation Board would have investigated them. The MOU details the criteria to
determine what accidents will be investigated jointly by both agencies. The objectives of these
investigations are to identif ’ the causes of accidents, to identii ’ ways to prevent them in the
future, and to take enforcement action as appropriate.
Emergency Order Authority - Section 1 12(r)(9)
1. General Purpose
When EPA determines that there may be an imminent and substantial endangerment to
human health or welfare or the environment because of an actual or threatened accidental release
of a regulated substance, the Emergency Order authority of Section 112(r)(9) empowers EPA to
seek remedies in court or issue orders to abate such danger or threat
2. Materials Covered
Regulated substances are defined by the List and Thresholds Rule are listed at 40 CFR
Part 68. Excluded from the list of regulated substances are any air pollutants for which a
national primary ambient air quality standard has been established and substances, practices,
processes or activities regulated under the stratospheric ozone protection provisions of the Clean
Air Act.
3. Scope of the Order
Section 1 12(r)(9) covers stationary sources’ 3 , as defined by the CAA. It requires state
notice prior to issuance and requires the Administrator to take action under Section 303 of the
CAA rather than Section 11 2(r)(9) whenever that authority is adequate to protect human health
and the environment.
4. Legal Issues and Applicability
No case law exists concerning CAA Section 112(r). Section 11 2(r)(1). has been invoked
only once against a fertilizer manufacturer in Iowa as the result of an explosion which resulted in
13 Section 11 2(r)(2) defines “stationary source” as “any buildings, structures, equipment,
installations or substance emitting stationary activities (1) which belong to the same industrial
group, (ii) which are located on one or more contiguous properties, (iii) which are under the
control of the same person (or persons under common control), and (iv) from which an accidental
release may occur.”
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fatalities. Because of the close similarity between CAA Section 112(r) and OSHA Section 654,
case law related to this provision may be relevant.
Even though Section 11 2(r)(9) is untested, enforcement personnel should focus on the
following issues when evaluating the use of this authority:
“Owners nd operators” means that both entities are responsible for compliance with
CAA 112(r) at the facility.
Accidental release is defined in the CAA as “an unanticipated emission of a regulated
substance or other extremely hazardous substance into the ambient air from a
stationary source.”
“Extremely hazardous substances” are not limited to the list of regulated substances
listed under section 112(r), nor the extremely hazardous substances under EPCRA.
The general duty provisions apply to owners and operators of all stationary sources
which have any “extremely hazardour substances.” Although there is no definition
for extremely hazardous, the Senate Report on the Clean Air Act provides criteria
which EPA may use to determine if a substarice is extremely hazardous. The report
stated the intent that the term “extremely hazardous substance” would include any
agent “which may or may not be listed or otherwise identified by any Government
agency which may as the result of short-term exposures associated with releases to
the air cause death, injury or property damage due to its toxicity, reactivity,
flammability, volatility, or corrosivity” (Senate Committee on Environment and
Public Works, Clean Air Act Amendments of 1989, Senate Report No. 228, 10 1st
Congress, 1st Session 211 (1989) -“Senate Report”).
As the Senate report states, “the release of any substance which causes death or
serious injury because of its acute toxic effect or as a result of an explosion or fire or
which causes substantial property damage by blast, fire, corrosion or other reaction
would create a presumption that such substance is extremely hazardous.” Senate
Report at 211. Revisions to the list of regulated substances under CAA 112(r) do not
affect the applicability of the general duty provisions.
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4WD-ERRB
Date:
SUBJ: Notice of Federal Assumption of Response Activity
Dear _______________________
My letter of notified you of federal interest in an actual or potential
pollution incident at ________________________________ located ____________________________
___________________________________________ for which you are presently considered
financially responsible.
You are hereby given notice that your actions to abate this threat and to remove the
pollutant (s), and mitigate its/their effects have been evaluated as improper by the United States
Environmental Protection Agency (EPA) On-Scene Coordinator (OSC). Effective ______________
________the EPA will conduct all removal activities under the authority of Section 31 1(c)(1) of
the Clean Water Act, as amended [ 33 U.S.C. 1321(c)(1)]. Removal will be effected in
accordance with the criteria of the National Oil and Hazardous Substances Pollution Contingency
Plan and federal regulations. You will then be billed for costs incurred by the Federal
Government, as set forth in Section 311 (f) of the Clean Water Act.
Should YOLI require further information concerning this matter, you should contact the
OSC by Telephone at (404) 562-8700 or in writing at:
On-Scene Coordinator
U.S. Environmental Protection Agency
Region 4
Atlanta Federal Center, I 1 th Floor
WDIERRB
61 Forsyth St., SW
Atlanta, Georgia 30303
Sincerely,
On-Scene Coordinator
Received and acknowledged: Signature:
Date/Time: _________________________
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ŘOS7 l%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
pflO1
AUG 26 1991
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: Formation of OECA Imminent
FROM: Eric V. Schaeffer, Director t—
Office of Regulatory Enforcement
Barry N. Breen
Office of Site Remediation
TO: Regional Counsel, Regions I-X
Regional Enforcement Division Directors, Regions I, II, IV, VI, \Tffl
Regional Enforcement Coordinators, Regions I-X
We have asked the Office of R guiatoiy Enforcement’s (ORE) RCRA Enforcement
Division to coordinate implementationof hé recommendations from thi year’s National
Enforcement Meeting regardiń the use of the Agency’s authority to respond to immiitent and
substantial endangerment conditions. As you know, these recommendations came from
suggestiols made by bdth Regional and Headquarters management personnel that were
discussed at two breakout sessions. In brief, we are establishing a joint ORE-Office of Site
Remediation Enforcement (OSR.E) team to quickly respond to requests for assistance from
regions in specific cases and to develop certain tools to enhance the use of this authority. We
are also asking each region to designate ne person from the enforcement division or
regulatory enforcement office who will be our contact for determining the appropriate
enforcement response in the event of an industrial accident.
The discussions at the National ) ‘,I eting reinforced our belief that we need to promote
and encourage the effective use of the various statutory Imminent and substantial endangerment
authorities (e.g.,RCRA § 70O3, -CAA1 112(r) and 303, and CERCLA1 106). For
example, in certam circumstances, if a\w er-related release by a source is presentmg an
imminent and ‘substantial endangermënt,’EPA may chodse to issue a RCRA
Recycl.&RecycIabIe .P& Ied with Vegetable O Baied InI on 100% Recycled Paper (40% Postcŕnsumer)
Authorities Team
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§7003 order because §504 of the Clean Water Act ddes not provide for administrative ŕrders. -
If there were a threatened release to the air of a hazardous substance from a’ facility, he
Agency might choose to issue an order pursuant to §106 of the Comprehensive Environmental
Responsibility Compensation and Liability Act instead of §303 of the Clean Air Act.
CERCLA § 106 may be the better choice for threatened releases because it is likely easier to
show that this situation “may present” an imminent and substantial endangerment (CERCLA’s
threshold) than to show that it “is presenting” an imminent and substantial endangerment
(Clean Air Act’s threshold). In addition, the limited duration of Clean Air Act orders might
also suggest a preference for the use of CERCLA § 106.
To facilitate this effort, we have established a cross-office team to assist regions in
making most effective use of these authorities. This team will work with Marcia Mulkey and
Walter Mugdan to ensure additional regional input as this effort progresses. The team wifi
also coordinate with the media program offices, as appropriate. Ann Bailey will be the Team
Manager. The attached list identifies those team members with expertise in specific media-
based endangerment authorities. We encourage you to call any team member if you need
assistance for a specific case. Your request for help in such matters will be given the
highest priority.
The membership of this team has bean drawn from all of the ORE Divisions and from
OSRE to ensure that for each authority w have at least one person on the team who knows it
well Our goal, however, is that each tei member will spon be knowledgeable in all pf the
imminent and substantial endaii ei emähoriiies) Fó’achievetliat 1oal, ve have schéduléd
• .,.. ,• .1
briefing sessions, so that staff can share ,th ir,expertise in the use of these authorities Once
these sessions are complete, Regional roundtablés will be schedule’d, patterned after thE
National Meeting discussions, to further d velop expertise
In addition, the team is nearing coinpletio i ónausers’ “co6kboÔk” to erve as ‘1 tóbl
for Agency staff. It will include a sumthá of the imminent and substantial endangerment
authorities, as well as relevant case law, tables comparing and contrasting the elements of each
authority, copies of the guidance issued for each authority, an analysis of case-specific
findings, along with the relief sought, and any i iodel orders or stan lar
currently available for each authority those authorities ti del
orders, we anticipate developing those mo4els and -
more experience with using those.aqtlu
willalsdb puiling together ex pleds , ..
available electronically to all Regioiis . - , . / -
- . •-.. • ‘. . . . . -.
- . ,. . - . . .. , . -, ..- s. t. . .- .- .
To summarize, the tern will initially ,und rtake three tasks by the cfollOwin dates ..
• . f... -.. .
—. ‘ — • t’ . -
1) Broaden ex ertise in multiple stat itčs ‘through briefing essions and roundtable -
- discussions - -
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Headquarters briefing sessions began on August 5 and will be completed by October
31. Regional roundtables will begin early next fiscal year.
2) Develop a cookbook describing the authorities and how to use them
The cookbook will be ready for initial distribution by October 31.
3) Establish an electronic clearinghouse of example orders that have been issued
We anticipate that this effort will be ongoing, but expect to have an initial set of orders
available electronically by November 30.
To ensure the most effective use of the Agency’s enforcement authorities, our offices
will be routinely reviewing information from the National Response Center provided to us by
OSWER’s Chemical Emergency Preparedness and Prevention Office (CEPPO) and contacting
the affected regions to determine whether and what type of enforcement response the region is
considering for each incident. The team and the affected Region will consult with technical
personnel in CEPPO, as needed, in determining whether a situation threatens or presents an
imminent and substantial endangerment. We are asking each region, therefore, to designate
one person from the enforcement division or regulatory enforcement office who will be our
contact for this purpose. Each Region should contact Ann Bailey, at (202) 564-3899,
egarding this designation.
We will be contacting Regions in which accidents that meet any one of the following
criteria occur:
1. result in one or more human fatalities;
2. result in the hospitalization of three or more workers or members of the public;
3. cause property damage. (on- and/or off-site) initially estimated at $500,000 or
more in total;
4. present a serious threat to worker health or safety, public health, property, or
the environment; - -
5. have significant off-site consequences, such as 1arge cale evacuations or
protection-in-place actions, 1 closing of major transp 9 alion routes, substantial
environmental contaminationôr substantial effects’(e. injiuy, ‘death) on
wildlife or domesticated animals; or
6. are an event of significantpublic concern.
Our routine review of National Response Center. data and regu1ar dialigue with the
Regions regarding industrial accidents will allow us to provide assistancéprörnptlyin
determining whether enforcement is appropriaie and if so, the bist enforcenient:response,
including which statutory authority to use for an imminent and substantia1eiidaii erment order,
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if necessary. An appropriate enforcement response can ncourage facilities to be more
proactive in preventing accidents.
cc: James L. Makris
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WORKGROUP FOR IMMINENT AND SUBSTANTIAL ENDANGERMENT
AUTHORITIES
Office or
Division
Name
Phone Number
Area of Expertise in Emergency
Powers
RCRA
Caroline Aliearn
564-4012
RCRA §7003
Mary Andrews
564-4011
RCRA §7003
AED
Cary Secrest
564-8661
CAA §303
Luis Troche
564-2008
CAA § 112(r)
WED
Betsy Devlin
564-4054
SDWA §1431; CWA §504
Alan Morrissey
564-4026
SDWA §1431; CWA §504
TPED
Carl Eichenwald
564-4036
TSCA §7, §5; FIFRA §13, § 6(c)
Dean Ziegel
564-4038
FIFRA §13, §6(c); EPCRA
MMED
Jack Schad
564-6034
Case Development
ORE
Suzanne Childress
564-7018
Immediate Office Contact
OSRE
Cate Tierney
- -
564-4254
•
CERCLA §106; RCRA § 7003 (for
site remediation)
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INJTffiTCTIVE AND PRE yENTA TIVE RELIEF A VAILABLE UNDER THE
STATUTORY IMMINENT HAZARD PROVISIONS DRAFT ion 0/97
FOR INTERNAL USE ONLY -- DOES NOT REPRESENT
OFFICIAL AGENCY GUIDANCE
I. Introduction -
The United State Environmental Protection Agency’s enforcement program is often faced
with situations that call for a quick respo! -- a raw sewage pipeline overflows into public
waterways or the improper retho al of asbestos near a school playground. Fortunately, the
Agency also has a variety of statutory authorities to address these situations. Because the Agency
historically has had a media-based organizational structure, each media enforcement program has
tended to look only to the statute that it is most familiai with (e.g., Air Enforcement Division and
the Clean Air Act) when determining whether a situation presented an imminent and substantial
endangerment, and if it did, what remedies could be sought. Most “imminent and substantial
endangerment” provisions allow the Agency to issue an order either requiring certain conduct to
abate the hazard or prohibiting certain conduct to eliminate the hazard. These orders are similar
to injunctions.
II. Background
Congress broadly drafted the imminent hazard provisions included in the environmental
statutes’ to give appropriate government officials the right to seek judicial relief, or take other
appropriate action to avert threats to the environment or public health. This standard has been
interpreted as “more lenient than the traditional requirement of threatened irreparable harm,
United States v. Price , 523 F. Supp. 1055, 1070 (D. N.J. 1981), aff’d 688 F.2d 194,204 (3rd Cir.
‘Imminent hazard provisions appear at Section 1431 of the Safe Drinking Water Act, 42
U.S.C. § 300i(a); section 504(a) of the Clean Water Act (CWA), 33 U.S.C. § 1364(a), section
311(c) and (e) of the CWA, 33 U.S.C. § 1321(c) and (e); section 303 of the Clean Air Act
(CAA), 42 U.S.C. § 7603(a); section 7003 of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6973; section 8 of the Toxics Substances Control Act, 15 U.S.C.
§ 2606(b); and section 106 of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9606(a).
2 Most of the emergency powers provisions under the environmental statutes enable the
Administrator to issue an order necessary to protect public health and the environment.
However, this authority is not included under § 504 of the CWA.
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1982).
III. Overview of Statutory Authority
The following is a summary of the “imminent and substantial endangerment” provisions
under RCRA, CERCLA, CWA, SDWA and CAA. The framework of these statutes, legislative
history and case law demonstrate the strong similarities between these provisions and how they
can be used on a combined basis. Additional information concerning endangerment provisions
under other environmental statutes is contained in the attached chart.
A. RCRA 7003 -
1. General Purpose
Section 7003(a) of RCRA authorizes the EPA Administrator to issue an order or initiate
an judicial action in district court whenever the Administrator receives evidence that the past or
present handling, storage, treatment, transportation, or disposal of any solid waste or hazardous
waste may present an imminent and substantial endangerment to health or the environment.
Section 7003 (a) provides:
...Upon receipt of evidence that the past or present handling, storage,
treatment, transportation or disposal of any solid waste or hazardous
waste may present an imminent and substantial endangerment to
health or the environment, the Administrator may bring suit on behalf of
the United States in the appropriate district court against any person
(including any past or present generator, past or present transporter,
or past or present owner or operator of a treatment, storage or disposal
facility) who has contributed to or is contributing to such handling,
storage, treatment, transportation or disposal to restrain such
person from such handling, storage, treatment, transportation, or
disposal, to order such person to take such other action as may be
necessary, or both...The Administrator shall provide notice to the
affected state of any such suit. The Administrator may also, after
notice to the affected State, take other action under this section
including, but not limited to, issuing such orders as may be necessary
to protect public health and the environment.
2. Materials Covered
Section 7003 applies to any solid waste as defined in RCRA § 1004(27) , including
RCRA § 1004(27) defines the term “solid waste” to mean “any... other discarded
material, including solid, liquid, semisolid, or contained gaseous material resulting from
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petroleum, or hazardous waste as defined in RCRA § 1 004(5) . The definition of solid waste
excludes Clean Water Act permitted discharges. The RCRA statute and regulations contain two
differenUets of defmitions of “solid waste” and “hazardous waste.” The regulatory defmitions
set forth in 40 C.F.R. Part 261 identify materials that are subject to regulation under Subtitle C of
RCRA. It is EPA’s position, and at least two courts have recognized, that the broad statutory
definitions, not the regulatory definitions, govern in section 7003 actions. 5
3. Scope of the Order
EPA may commence a civil action in the appropriate district court against any person,
(including any past or present generator, past or present transporter, or past or present operator of
a eatrtment, storage or disposal facility) to restrain that person from handling, storage, treatment,
transportation or disposal, or to take other necessary action. EPA may also, after notice to the
affected state, issue an administrative order necessary to protect public health and the
environment. RCRA provides that any person who fails to comply with a section 7003
administrative order, in an action brought in district court to enforce the order, can be fined not
more than $5,500 for each day the violation occurs or such failure to comply continues.
4. Legal Issues
(a) The meaning of “ may present an imminent and substantial
endangerment ”
Demonstrating that the management of a waste may present an “imminent and substantial
endangerment to health or the environment” generally requires careful documentation, scientific
evidence, and expert witnesses. However, courts have repeatedly recognized that the
industrial, commercial, mining, and agricultural operations, and from community activities, but
does not include solid or dissolved material in domestic sewage, or solid or dissolved materials
in irrigation return flows or industrial discharges which are point sources subject to permits under
section 1342 of title 33, or source, special nuclear, or byproduct material as defined by
the Atomic Energy Act...”
‘ RCRA § 1004(5) defines the term “hazardous waste” to mean “a solid waste, or
combination of solid wastes, which because of its quantity, concentration, or physical or
chemical, or infectious characteristics may (A) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a
substantial present or potential hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or otherwise managed.”
5 See, United States v. Valentine , 856 F. Supp. 621, 627 (citing 40 C.F.R. § 261.1 (b)(2));
Connecticut Coastal Fisherman’s Assoc. v. Remington Arms Co. , 989 F.2d 1305, 1314
(2ndCir. 1993).
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endangerment standard of RCRA § 7003 is quite broad, United States v. Valentine , 856 F.Supp.
621, 626 (D. Wyo. 1994). Courts interpreting the “imminent and substantial endangerment”
provision of section 7003 have found:
An “endangerment” is an actual, threatened, or potential harm to health or the
environment. I d.. at 626. As underscored by the words “may present” in the
endangerment standard of section 7003, neither certainty nor proof of actual harm
is required, only a risk of harm. No proof of off-site migration is required
if there is proof that the wastes, in place, may present an imminent and substantial
endangerment. Id at 626-627.
• An endangerment is “imminent” if the present conditions indicate that there
may be a future risk to health or the environment even though the harm
may not be realized for years j at 626; United States v.Conservation
Chemical II , 619 F. Supp. 162, 194 (W.D. Mo. 1985). It is not necessary for the
endangerment to be immediate or tantamount to an emergency ( Dague v. Ciii’ of
Burlington , 935 F. 2d 1343, 1356; United States v.Waste Industries , 556 F.
Supp. 1301 (D. N.C. 1982), rev’d 734 F.2d 159(4th Cu. 1984), Valentine , 856
F.Supp. At 626).
• An endangerment is “substantial” if there is reasonable cause for concern
that health or the environment may be at risk ( Conservation Chemical , 619 F.
Supp. at 194). It is not necessary that the risk be quantified, .
• As clarified by the 1984 amendments to RCRA, Section 7003 is intended
to abate conditions resulting from past or present activities (ER. Rep.
No. 1133, 98th Cong., S2dess. 119 (1984).
- (b) The meaning of “ any person ”
Section 7003 specifies that “any person” includes any past or present generator,
past or present transporter, or past or present owner or operator of a facility. 6 The definition of
“person” does include individuals (e.g., corporate officers or employees). With respect to
corporate officer liability, EPA’s position, which has been adopted by at least one court, is that it
is not necessary to “pierce the corporate veil” to fmd individual corporate officer liability (i.e.,
corporate officers are not immune from personal liability for corporate activities, Northeastern
6 The 1984 amendments to RCRA clarified that the term “any person” includes any past
or present generator, transporter, or owner or operator of a TSD. Furthermore, the legislative
history of those amendments notes that “ [ Section 7003] has always reached those persons who
have contributed in the past or are presently contributing to the endangerment, including but not
limited to generators, regardless of fault or negligence.” H.R. Rep. No.1133, 98th Cong., 2d
Sess., 130 Cong. Reg. 11137 (October 1984).
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Pharmaceutical & Chemical Co. , 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848
(1987). With respect to employee liability, EPA agrees with at least one court that has held that
an employee of a corporation can be subject to individual liability under Section 7003 if he or she
had the authority to control and in fact undertook responsibility for waste disposal procedures,
Acme Printing Ink Co. v. Menard. Inc. , 870 F.Supp. 1465, 1491 (E.D.Wis.1994).
(c) The meaning of “ who has contributed or is contributing to such
handling. storage. treatment. transportation, or disposal ”
EPA agrees with the court in United States v. Aceto Agricultural Chemicals Corp. . 872
F.2d 1373 (8th Cir. 1989), that the plain meaning of “contributing to” is “to have a share in any
act or effect.” It is not necessary for EPA to prove that the person had control over the activities
that may create an imminent and substantial endangerment, j at 1383. Aceto
involved an action under CERCLA and RCRA regarding the clean up of hazardous substances at
a pesticide formulation facility. The court found that the defendants “arranged for” the disposal
of hazardous substances under CERCLA and “contributed to” the disposal of hazardous wastes
at the pesticide formulation facility by their ownership and control of technical grade pesticides
through the pesticide formulation process. Specifically, defendants contracted with the facility to
formulate their technical grade pesticides; they retained ownership of the pesticide throughout the
process; and inherent in the process is the generation of hazardous wastes. Defendants supplied
the specifications for their commercial grade products to the facility. The court concluded that it
may be reasonably inferred that defendants had authority to control the way in which the
pesticides were formulated, as well as any waste disposal. at 1383. Thus, the defendants’
relationship to the product determined liability under the RCRA imminent and substantial
endangerment authority.
Most of the subsequent case law regarding Aceto pertains to CERCLA. However, since
the court in Aceto regarded the theory of liability for “arranged for” liability under CERCLA to
be virtually the same as “contributed to” liability under RCRA, these cases carry great
importance for interpreting the scope of “contributing to” liability under RCRA § 7003. The
most significant case is South Florida Management District v. Montalvo. 84 F.3d 402 (11th Cir.
1996) in distinguishing the degree of control over the product necessary to establish liability.
Montalvo involved a third party complaint filed by defendants Chemspray and Juan
Montalvo (“the sprayers”) against various farming and ranching corporations (“the landowners”)
that contracted with the sprayers for aerial spraying services. In their third-party complaint, the
sprayers alleged that the landowners had “arranged for” the disposal of various spraying
chemicals by :( 1) owning the spraying chemicals throughout the application process; and (2) the
fact that the generation of hazardous wastes from the spraying chemicals was a necessary
incident to the application process because of the mixing, loading, and cleaning of the spraying
chemicals at the contaminated site. The landowners filed a motion to dismiss the sprayers third-
party complaint contending that the above facts were not sufficient to show that the landowners
had “arranged for” the disposal of hazardous substances. The Eleventh Circuit stated that the
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factors such as intent, ownership, and knowledge were all useful in determining whether a party
had “arranged for” the disposal of hazardous substances. The court did not extend CERCLA
liability to the landowners because the sprayers had not alleged that the landowners assisted in
the loading, or rinsing out of the chemical tanks or that the landowners even knew about the
spraying chemical spills. Nor had the sprayers alleged that the landowners had the duty or
authority to monitor or control the sprayers activities. Thus, the court held that the landowners
had not “arranged for” the disposal of any hazardous substances.
Case law in this area supports the following examples of “contributors” for purposes of section
7003: -
- an owner that fails to abate an existing hazardous condition of
which he or she is aware;
- a person who owned land on which a facility was located during
the time that solid waste leaked from the facility;
- a person who operated equipment during the time that
solid waste leaked from that equipment;
- a person who installed equipment that later leaked;
- a person who simply provided a receptacle for existing wastes;
- a generator who sold below grade materials to a reclamation
facility to dispose of them; and
- a county that sited, licensed, and franchised a privately owned and
operated landfill for the disposal of industrial wastes.
5. Use of the § 7003 Order
Ten § 7003 orders have been issued by the Administrator, through her delegatees, in the
past year. The following are summaries of two recently issued § 7003 orders.
• Chief Supply Corporation. Haskell. OK
On May 27, 1997, the EPA issued a section 7003 order to Chief Supply Corporation, Inc.,
located in Haskell, Oklahoma, to protect public health and the environment. Chief Supply
Corporation operates a hazardous and industrial waste collection, storage, hazardous waste fuel
blending, and recycling facility. On March 26, 1997, an explosion and fire occurred at the
facility which resulted in the death of one of Respondent’s employees, and injuries to two other
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employees. Many of the 1450 drums of hazardous waste in storage at the time of the fire were
consumed by the fire. All persons in an area extending 1 1/2 miles to the north and one mile to
the east of the facility were evacuated as a result of the fire. The cause of the explosion and fire
has not been determined.
Three days after the fire, a drum of acid was overturned while moving debris to
extinguish remaining hot spots. Chemicals from the drum mixed with waste water from the
firefighting effort and created a reaction resulting in the release of a large acid plume. The plume
migrated offsite to the northwest and crossed Highway 64. The plume dissipated in
approximately ten minutes. On April 8, 1997, a drum of solidified material was placed in a roll-
off container during the cleanup following the fire. The contents of the drum began smoking and
the odor of ammonia was immediately apparent. Facility personnel then poured water on the
waste, which caused the release of a large white plume and the reaction became more intense.
The waste was then covered with soil.
The Oklahoma Department of Environmental Quality sought to enjoin Chief from
resuming operations until certain activities were accomplished to avoid an immediate threat to
health or the environment. However, their injunction was denied by the District Court of
Wagoner County on May 15, 1997 because the Court determined that the ODEQ did not prove
that Chiefs operations posed an iimnediate threat to life or health sufficient to justify an
injunction.
The § 7003 order, effective upon receipt, required Chief to cease and desist operation of
the fuel blending process and not resume operation if currently inactive, including the fuel
dispersal units at the facility until authorized by EPA and ODEQ. The order also required Chief
to submit a report for review and approval to EPA and ODEQ regarding the operations at the
facility prior to the fire on March 26. The report must contain Chiefs determination of the cause
of the fire and recommend steps to prevent or minimize the potential for any future fires or
explosions. The order required Chief to implement measures to prevent the combining of non-
debris hazardous waste with hazardous waste debris and properly dispose of such debris in
accordance with all applicable state and Federal regulations. Additionally, Chief must update its
facility contingency plan as a result of the fire and provide classroom instruction regarding
hazardous waste management procedures and fire prevention.
• Rail Services. Inc.. Calvert City. Kentucky
On April 3, 1997, Region 4 issued a § 7003 order to Rail Services, Inc., a business that
engages in rail car cleaning, maintenance, painting and lining, plus solvent recovery and waste
treatment. Some of the rail cars transported to the facility contain hazardous wastes which are
removed in the cleaning process. Continuing releases of hazardous wastes and constituents from
solid waste management units at the facility created conditions that are hazardous to human
health and the environment. In addition, previous incidents at the facility, involving injuries to
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employees, indicated that management practices created a threat to human health. In February
1991, one of Respondent’s employees was killed and two of Respondent’s employees were
injured while perfonning cleaning operations of a liquid petroleum gas rail car containing solid
waste an Jor hazardous waste at the facility. In May 1990, employees welding on a hydrogen
tank caused an explosion and two employees required emergency medical treatment. In October
1990, an employee using an impact wrench on a rail car holding excess pressure caused an
explosion. The employee also required emergency medical treatment.
The Section 7003 order required Respondent to immediately cease and desist the receipt,
generation, and management of all solid waste at the facility including, receiving, entering,
emptying, cleaning, painting and lining rail cars and trucks, until compliance with the terms of
the order are achieved. Respondent was also required by the order to post signs regarding
imminent danger at the site, confine smoking and open flames at the facility to designated areas,
provide classroom instruction on hazardous waste management practices and fire prevention,
equip the facility with appropriate fire equipment, update its contingency plan, identii ’ all
hazardous waste at the facility, and bring storage containers into compliance with the regulations.
B. CERCLA
EPA has issued more emergency power administrative orders under § 106(a) of CERCLA
than any other statute. Approximately 1,300 such orders have been issued since the enactment of
CERCLA.
1. General Purpose
CERCLA § 106 is somewhat different from section 7003 of RCRA, in that it authorizes
judicial action or an administrative order when there may be an imminent and substantial
endangerment to the public health, welfare or the environment because of an actual or threatened
release of a hazardous substance. CERCLA also requires that the President prepare a revised
“national contingency plan” to reflect and carry out the responsibilities and powers created by the
Act.
CERCLA § 106(a) is a broadly written imminent hazard provision. It permits the
government to bring suit to obtain abatement action whenever the President determines there
may be an imminent and substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a hazardous substance. This section
also gives the federal courts broad power to grant “such relief as the public interest and equities
of the case may require.” Section 106(a) provides:
(a) In addition to any other action taken by a State or local government, when
the President determines that there may be an imminent and substantial
endangerment to the public health or welfare or the environment because of an
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actual or threatened release of a hazardous substance from a facility, he may
require the Attorney General of the United States to secure such relief as may
b..e necessary to abate such danger or threat, and the district court of the
United States in the district in which the threat occurs shall have jurisdiction
to grant such relief as the public interest and the equities of the case may
require. The President may also, after notice to the affected State, take other
action under this section including, but not limited to, issuing such orders as
may be necessary to protect public health and welfare and the environment.
2. Materials Covered
Hazardous substance, as defmed in CERCLA § 10 1(14), includes hazardous waste under
RCRA § 3001. The term “hazardous substance” means (A) any substance designated pursuant to
section 132 1(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution or substance
designated pursuant to CERCLA § 102 (C) any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the SWDA (D) any toxic pollutant listed
under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the
Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to
which the Administrator has taken action pursuant to TSCA § 7. The term does not include
petroleum, including crude oil or any fraction thereof, or natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).
3. Scope of the Order
Under § 106, whenever the President determines that there may be an imminent and
substantial endangerment to the public health or welfare or environment because of an actual or
threatened release from a facility, he may commence a civil action to obtain such relief as may be
necessary to abate the danger or threat. The President may also, after notice to the affected state,
issue an order to compel cleanup and obtain such other relief as may be necessary to abate the
danger or threat and protect public health and welfare and the environment. Failure to comply
with an order may result in a penalty of up to $27,500 a day.
4. Legal Issues
CERCLA § 106(a) provides that the President is to determine whether there may be an
imminent and substantial endangerment. The President has delegated this authority to the EPA
Administrator. An “endangerment” is not actual harm, but a threatened or potential harm.
Goodrich v. Murtha , 697 F. Supp. 89, 96 (D. Conn. 1988). The United States must prove only
that there may be an endangerment, not that there is an endangerment. United States v.
Conservation Chemical II , 619 F. Supp. 162, 175 (W.D. Mo. 1985). The endangerment may be
to the public health or public welfare or the environment. I L at 175. The United States need not
prove endangerment to people; a possible endangerment to public welfare alone or to the
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environment alone suffices. j . at 192. Federal facilities can be ordered to take action by EPA
under § 106 subject to concurrence by the Department of Justice. Public welfare encompasses,
“health, safety, recreational, aesthetic, environmental and economic interests.” jj At 192. An
endangerment is “imminent” if the factors giving rise to it are present, even though harm may
not be realized for years. Reilly , 546 F. Supp. at 1109-10. An “endangerment” is substantial if
there is reasonable cause for concern that someone or something may be exposed to a risk of
harm by a release or threatened release of a hazardous substance. Conservation Chemical , 619 F.
Supp. at 195-196.
In United States v. Price , 577 F. Supp. at 1103 (D. N.J. 1983), the court was faced with
the issue of whether a past, nonnegligent, off-site generator should be held strictly liable for
hazardous waste deposited at a landfill, in an action brought by United States under CERCLA.
One main thrust of the court’s analysis dealt with reconciling CERCLA § 106(a) with RCRA
§ 7003. The Price court concurred with the finding in Reilly that “the imminent hazard
provisions of § 106(a) are even broader than those articulated in § 7003.” Reilly . 546 F. Supp.
at 1111. The court reached this conclusion by reviewing the statute and legislative history which
indicate that (1) Congress intended for the government to have the necessary tools to respond
promptly and effectively to problems of national magnitude; and (2) Congress intended that those
responsible for problems caused by the disposal of chemical poisons bear the costs and
responsibilities for remedying the harmful conditions they created. j at 1111.
5. Creative Uses of CERCLA § 106(a) Orders
In several recent cases, EPA has creatively used its order authority under CERCLA
§ 106(a). For example, residents living near a farm in Guayanilla, Puerto Rico, complained to
EPA about clouds of pesticides which were being sprayed on mangoes and other crops, drifting
into their neighborhood. On December 20, 1996, Region II issued an order under CERCLA §
106(a) to a partnership known as Tropical Fruit, S.P. The order required Tropical Fruit to,
among other things, cease spraying pesticides that contain CERCLA hazardous substances in any
manner that would allow the pesticides to drift or otherwise be released beyond the boundaries of
Tropical Fruit’s property. In another case which arose in Bossier City, Louisiana, EPA
documented benzene contamination in the indoor air of certain residences located near a closed
refinery. Region VI issued a Unilateral Administrative Order pursuant to CERCLA § 106(a) in
December 1996 (and amended in February 1997), requiring Canadian Oxy Offshore Production
Company (“COPCO”) to clean up the indoor air. Specifically, the order calls for COPCO to both
seal foundation cracks and ventilate residences with the highest benzene concentrations.
EPA has also used its CERCLA § 106(a) order authority in creative ways in earlier years.
For example, at the South Calvacade site several years ago, Region V I issued an order to a
refinery that was the source of a groundwater plume contaminated with petroleum. The order did
not violate CERCLA’s petroleum exclusion because Region VI was already using its CERCLA
authority to address a separate, non-petroleum downgradient plume of the refmery. The order
issued to the upgradient refinery was based on the fact that the upgradient plume threatened to
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disrupt the CERCLA cleanup of the downgradient plume, and thus was within EPA’s authority
under CERCLA § 106(a).
The following are other examples of when there may be an “imminent and substantial
endangerment” under CERCLA § 106(a):
a. Numerous hazardous substances are present at and being released into
the environment from a facility that is accessible to humans and other
living organisms.
b. A relatively small quantity of hazardous substances that are toxic at low dosage
levels are present and are being threatened to be released from a facility.
c. Contaminated groundwater from beneath a disposal facility is flowing in
the direction of a residential subdivision that uses well water.
d. Numerous hazardous substances are present at and migrating from a
facility and have contaminated the soil and groundwater.
C. SECTION 504 CWA
1. General Purpose :
Section 504 is the Emergency powers provision of the Clean Water Act. Section 504
provides:
Notwithstanding any other provision of this chapter, the Administrator upon
receipt of evidence that a p l1ution source or combination of sources is presenting
an imminent and substantial endangerment to the health of persons or to the
welfare of persons where such endangerment is to the livelihood of such persons,
such as the inability to market shellfish, may bring suit on behalf of the United
States in the appropriate district court tç immediately restrain any person causing
or contributing to the alleged pollution to stop the discharge of pollutants
causing or contributing to such pollution or to take such other action as may be
necessary.
2. Materials Covered
The statutory predicate to action under Section 504 is the receipt of evidence that a
“pollution source or combination of sources” is presenting an imminent and substantial
endangerment to the health or welfare of persons. “Pollution” is defmed broadly under Section
502(19) of the Act as “man-made or man-induced alteration of the chemical, physical, biological,
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12
and radiological integrity of water.” While “pollution source” is not defined in the statute, it
seems reasonable to read this term as synonymous with point and nonpoint sources of pollution 7 .
3. Scope ofthe Order
Section 504 is the only “imminent hazard” authority which requipre-respo j 4 ial
proceedings. As relief may only be provided by a district court, a judicial referral is required to
initiate a section 504 action. The authority to issue compliance orders and assess penalties
administratively is explicitly provided for elsewhere in the CWA and is not in section 504.
Upon receipt of evidence of an imminent and substantial endangerment, the Agency may bring
suit to restrain “any person” causing or contributing to the pollution to stop the discharge of
pollutants. -- ‘
4. Legal Issues
Section 504 was added to the Federal Water Pollution Control Act by the 1972
amendments to the Act, known as the Clean Water Act. There is very little legislative history or
case law on Section 504, which was patterned after Section 303 of the Clean Air Act. Since its
enactment, only 15 actions have been brought citing Section 504 as grounds for relief. In each
case, section 504 was merely appended to complaints using provisions of other environmental
statutes as the primary enforcement authority. Guidance for such orders was issued on July 30,
1993.
A. Statutory Elements
(1) Action under section 504 should be taken when a source of a pollutant is
presenting a threat to the health or welfare of persons, whether or not the pollutant has actually
been discharged or released.
(2) Evidence that a pollution source is causing or merely “contributing” to the
pollution is sufficient to support the use of a Section 504 action. The legislative history of
RCRA § 7003 emphasizes the broad reach of this term. Reilly , 546 F. Supp. at 1100.
(3) Is Presenting an Imminent and Substantial Endangerment. Both CWA § 504 and
Section 20 1(c), the only other provision of the CWA using the term “pollution source”
clearly refers to point and non-point sources:
To the extent practicable, waste treatment management shall be on an areawide
basis and provide control or treatment of all point and nonpoint sources of
pollution, including in place or accumulated pollution sources.
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13
§ 303 of the Clean Air Act are based upon evidence that a pollution source or combination of
sources is presenting an imminent and substantial endangerment. This should be distinguished
from the thresholds found in CERCLA § 106(a), RCRA § 7003, SDWA § 1431, which are based
upon a showing of evidence or information that the pollution sources may present an imminent
and substantial endangerment. RCRA case law indicates that the statute on its face does not
discriminate between cases of present harm caused by past disposal practices and cases of present
harm caused by ongoing disposal practices. This same reasoning holds true for section CWA
504. For purposes of determing imminent and substantial endangerment under CWA § 504, a
continuous discharge is not required. The Agency may take preventative action to address a water
pollution episode and an endangerment may be an immediate or long-term problem. Such harm
must only pose a reasonable cause for concern for the public or welfare. The evidence must
support a contemporaneous cause for concern for the health and welfare of persons, or a current
threat to health or welfare.
(4) Health or Welfare of Persons
At the very least, section 504 may be used to address long term threats to health. The
discharge of a pollutant constitutes an imminent and substantial endangerment to the health of
persons when there is a reasonable medical concern over the public health based on an
acceptable, albeit yet unproven, theory that the pollutant may be, for example, teratogenic,
mutagenic, fetotoxic, or carcinogenic, Vertac Chemical Corp. , 489 F.Supp. 870 (E.D. Ark. 1980).
The statutory language permitting Agency action when an endangerment is presented to
the “welfare” of persons allows the Agency to address a wide variety of situations affecting a
person’s livelihood. For example, harm to the tourist industry or sport fishermen caused by
polluted waters or sediments may impact people’s livelihoods and therefore be subject to action
under Section 504.
(‘\(5) Permit as a ShieI 7
Dischargers of pollu ants from point sources that are in compliance with a NPDES permit
may attempt to argue that Section 402(k) of the Act shields them from liability under Section 504
as well. However, section 504 applies “notwithstanding any other provisions of [ the CWA].
Thus, a section 504 action may be used to defeat the permit as a shield defense.
5. How a § 504 Order is Used
For EPA to exercise enforcement authority under section 504, there must be evidence that
a pollution source or sources is presenting an imminent and substantial endangerment to the
health or the welfare of persons. The evidence may be documentary, testimonial or physical.
Information can be obtained through a section 308 information request. Discharge monitoring
reports and monthly operations reports may be used as evidence. Nonpoint source management
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14
plans, as well as nonpoint source assessment reports and Section 3 05(b) reports may also be used
to identify sources of pollution. Both permitted and non-permitted dischargers fall within the
scope of Section 504.
The Agency may use Section 504 to address problems presented by beach closings, fish
kills, contaminated sediments and nonpoint sources. Section 5.04 may be used as a backup in the
implementation of a state narrative water quality criteria, and as a means to counter the permit-
as-a-shield defense.
This authority was used in a Region IV action against Metro-Dade’s (FL) Water and
Sewer Authority. This enforcement case was filed in June 1993 to address an emergency
situation caused by the deteriorated condition of a large sewage pipeline (cross-bay line) running
under Biscayne Bay, Florida, as well as chronic and widespread overflows of raw sewage into
homes, streets, businesses and public waterways, including Biscayne Bay and the Miami River.
A first partial consent decree, entered by the court in January 1994, addressed replacement of the
cross-bay line, as well as some short term preventative measures, pursuant to §504. The second
and fmal consent decree, entered by the court in September 1995, addresses the remaining claims
under Section 309 of the Act and provides for a settlement of $2 million and SEPs totaling at
least $5 million. The county is expected to spend more than $80 million rehabilitating its system
to prevent the chronic overflows of sewage. The new cross-bay line has been constructed and is
now operational. EPA discovered the violations in this case from news reports.
D. Safe Drinking Water Act § 1431
1. General Purpose and Statutory Scheme
.The Safe Drinking Water Act (SDWA) was intended to provide a system of federal
regulations to ensure water quality and to develop programs to ameliorate groundwater pollution
for public water systems. Section 1431 of the SDWA provides national drinking water
regulations that dictate maximum contaminant levels (MCLs) for specified substances or
treatment techniques. The MCLs must protect health to the extent feasible under available
technology and treatment techniques.
Section 1431 of the Act provides that when the Administrator receives information that:
• a contaminant is present in or is likely to enter a public water system or an
underground source of drinking water, and
• the contaminant may present an imminent and substantial endangerment to
human health, and
• the appropriate State and local authorities have not acted to protect public health.
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15
The Administrator may 1) issue orders to protect the public health or 2) commence a civil
action fox relief, including a restraining order, a permanent injunction, or a temporary injunction.
2. Materials Covered
Section 140 1(6) of the SDWA defines “contaminant” very broadly to include “any
physical, chemical, biological, or radiological substance or matter in water.” Under this broad
definition, EPA may take action under Section 1431 even when the contaminant in question is
not regulated by the National Primary Drinking Water Regulation (NPDWR) under the SDWA
(i.e., EPA has not issued a NPDWR for the contaminant or the regulation has been promulgated
but is not yet effective). This authority is clearly supported by the SDWA legislative history. 8
3. Scope of the Order
4fr
Application of the § 1431 authorit? nisat limited to existing contamination of a PWS or
USDW but also may be sued to prevent the introduction of contaminants that are “likely to enter”
drinking water. Thus, § 1431 orders should ideally be issued early enough to prevent the
potential hazard from materializing. 9 o.dditionally, EPA may take such actions notwithstanding
any exemption, variance, permit, license, regulation, order, or other requiiement that would
otherwise apply.’° Any person who violates, fails, or refuses to comply with any order issued by
the Administrator may be subject to civil penalties not exceeding $15,000 per day in which the
violation occurs or the failure to comply continues
4. Legal Issues and Use of the § 1431 Order
The court in United States v. Price , 688 F.2d 204, 211 (3d Cir. 1982) addressed how an
endangerment to public health is imminent enough to exert § 1431 authority. The court held that
§ 1431 authority, like RCRA § 7003 authority, is not limited to emergency situations. The court
held that injunctive relief may be granted where a risk of harm exists; “a more lenient standard
than the traditional requirement of threatened irreparable harm.” 14. Both the Price court and the
court in United States v. Waste industries , 734 F.2d 159, 165 (4th Cir. 1984) found support for
this proposition in the legislative histories. “By enacting the endangerment provisions of RCRA
and SDWA, Congress sought to invoke the broad and flexible equity powers of the federal courts
in instances where hazardous wastes threatened human health.” Price 734 F.2d at 211, citing
H.R. Rep. No. 96-191, 96th Cong., reprinted in (1974) U.S. Code Cong.& Ad. News 6454.”
8 See H.R. Rep. No. 1185, 93rd Cong., 2d Sess., 35-36.
9 1 4 at35-36.
IO j
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16
The courts have emphasized that §143 1 authority may only be invoked to protect public
water supplies. However, in Price , 688 F.2d at 204, the court held that the §1431 authority is
broad enough to authorize a preliminary injunction ordering a diagnostic study of the threat to a
municipality’s public water supply posed by the presence of toxic substances emanating from a
former commercial landfill. Additionally, the court in United States v. Midway Heights County
Water District , 695 F. Supp. 1072 (E.D. Cal. 1988) denied respondent’s motion to stay an
injunction against a public water system, where the parties stipulated that the level of
contaminants present in the water exceeds MCLs permitted under federal safety standards, even
though a system operator’s agreement with its customers purported to limit the use of the water
to irrigation purposes. The court upheld the injunction because 1) the system served at least 25
individuals who use water for human consumption and 2) eventhough the waterprimarily was not
used for drinking water, the presence of organisms that were accepted indicators of the potential
for the spread of serious disease presented an imminent and substantial endangerment from
“human consumption” through such normal uses as bathing, showering, cooking, dishwasbing
and oral hygiene.
Endangerments can more readily be determined to be imminent where they involve
contaminants that pose acute human health threats. Examples include:
• A nitrate MCL violation when a sensitive population is exposed (i.e., infants
less than six months of age)
• A waterborne disease outbreak with or without MCL violations
• A microbiological or turbidity MCL violation with or without a
waterborne disease outbreak
• Injection of untreated sewage directly into an USDW that is used by a nearby
drinking water well.
EPA may issue orders as necessary to protect the health of persons who are or may be
users of such a system (including travelers), including orders requiring:
• The provision of alternative water supplies, at no cost to the consumer,
by persons who caused or contributed to the endangerment
a Information about actual or pending emergencies
• Public notification of hazards (e.g., door-to-door, posting
newspapers, electronic media)
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17
• A study to determine the extent of contamination
• An engineering study proposing a remedy to eliminate the endangerment
— and a timetable for its implementation
• The halting of the disposal of dontaminants that may be contributing to
the endangerment.
E. SECTION3O3CAA
1. General Purpose
Section 303 of the Clean Air Act authorizes the Environmental Protection Agency (EPA)
to bring an action for injunctive relief to abate imminent and substantial endangerments to public
health, welfare, or the environment caused by emissions of air pollutants. Section 303 allows
EPA to initiate judicial action against, or issue an administrative order to, any person who is
causing or contributing to the pollution to stop the emissions of the pollutants or to take other
action as necessary. Section 303 is also a “gap-filling” authority, providing injunctive relief for a
wide range of endangerment scenarios regardless of a pollution source’s compliance or non-
compliance with any provision of the CAA. It also provides injunctive relief when an air.
pollutant(s) is not regulated under the CAA.
2. Materials Covered
Section 303 of the CAA authorizes the EPA to bring an action for injunctive relief to stop
the emission of air pollutants that is causing or contributing to an imminent and substantial
endangerment to public health, welfare, or the environment. Section 302 (g) defines “air
pollutant” to mean:
any air pollution agent or combination of such agents, including
any physical, chemical, biological, radioactive (including source material,
special nuclear material, and byproduct material) substance or matter
which is emitted into or otherwise enters the ambient air. Such term
includes any precursors to the formation of any air pollutant, to the extent
the Administrator has identified such precursor or precursors for the
particular purpose for which the term “air pollutant” is used.
3. Scope of the Order
The 1990 Clean Air Act Amendments expanded the scope of EPA’s §303 authority from
“imminent and substantial endangerment to the health of persons” to “imminent and substantial
endangerment to public health or welfare, or the environment.” The Amendments also
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18
eliminated the requirement for state or local inaction as a prerequisite to EPA initiating action•
under §303. The relevant state, however, must be consulted prior to issuance of an order. The
duration of administrative orders was lengthened pursuant to §303 from 24 hours to 60 days. In
so doing, Congress greatly increased the utility of §303. However, orders cannot extend beyond
60 days. If relief is required for more than 60 days, EPA must bring suit in district court, either
as an initial action or following the issuance of an Administrative order.
4. Legal Issues
Since this section was rarely used prior to 1990 and was significantly changed in 1990,
there is very little case law. EPA is, therefore, interpreting the terms contained in the § 303
imminent and substantial endangerment provision by looking to the statutory language itself and
legislative history. EPA is also interpreting these terms consistently with the legislative history
and case law previously discussed for the other environmental statutes with similar emergency
powers provisions.
5. Use of the § 303 Order
EPA has exercised its section 303 authority, as revised under the 1990 CAA Amendments
on three occasions.” One § 303 order was issued on June 12, 1997, to address an asbestos
hazard at an abandoned industrial site, and another in August 1994, to terminate (and later
modi&) a mining chemical company’s operations after it released a cloud of hydrogen sulfide gas
into the air, sending some 35 people to the hospital. The third order was issued on October 3,
1997 by Region IV to Trinity American Corporation and Trinity Fibers of Carolina, Inc. (Trinity)
under CAA § 303 and 114 concerning its foam and fiber pad manufacturing operations which
are co-located in Glenola, NC.
.The administrative order was issued to Trinity arising out reports that contaminants
present in air emissions from the facility were adversely affecting public health and a state order
that required Trinity to cease manufacturing operations. On August 25, 1997, the Agency for
Toxic Substances and Disease Registry (ATSDR) issued a draft Health Consultation indicating
that unidentified contaminants present in air emissions from the foam and/or fiber plants were
presenting a public health hazard. On September 2, 1997, the county health department urged
residents to evacuate the area after the North Carolina Department of Environment, Health, and
Natural Resources (DEHNR) detected unidentified organic vapors at the boundary of Trinity’s
property and near adjoining residences at levels of concern. Approximately 100 people took
“ Prior to 1990, EPA used its §303 authority on four occasions: one to address high
particulate matter in North Birmingham, Alabama (1971), another to address an asbestos hazard
at a mine in Globe, Arizona (1983), and two § 303 orders were combined with RCRA actions
and issued against property owners to address the storage of hazardous chemicals (1980), and the
storage of pesticides and related chemicals (1980). Air pollution from the chemicals was a
concern at both facilities.
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19
shelter at a local recreation center. On September 3, 1997, the State Health Director issued an
Order of Abatement, requiring Trinity to cease all manufacturing operations at the foam and fiber
plants until Trinity can demonstrate its ability to operate without creating a public health
nuisance. To date, Trinity has not challenged the state order; however, the DEFINR requested
that EPA issue an order in support of its own.
While the foam and fiber operations emit a number of hazardous air pollutants, the
constituent so far demonstrating the most definitive Link to adverse health effects is toluene
diisocyanate (TD1). The foam operation uses TDI as a raw material in the production of all
grades of foam, which results in the emission of TDI into the ambient air. TDI is a highly
reactive compound that is extremely toxic to humans at low levels. The primary effects are
pulmonary; however, TDI is also a powerful irritant to the mucous membranes of the skin and
eyes and the respiratory and gastrointestinal tracts. To date, one resident has tested positive for
the TDI antibody and six residents have been shown to have hyper-reactive airway disease.
Based on these preliminary results, it is likely that residents have been sensitized to TDI and
other chemical irritants and any further exposure, either to TDI or the other chemical irritants
emitted by both plants, would pose an imminent and substantial endangerment.
The order requires that Trinity not operate until it has demonstrated it can do so without
presenting an imminent and substantial endangerment and that within 30 days, Trinity submit a
proposed plan for demonstrating its ability to operate safely. The order is supported by affidavits
from surrounding residents concerning adverse health effects and the results of medical
evaluations conducted on 13 residents of Glenola, as well as a process audit performed by the
Region. The order is effective for no more than 60 days. The Region plans to refer the matter to
the Department of Justice for follow-up civil action to keep the plants from operating should it be
necessary after the 60 days have lapsed.
F. SECTION 112(r) CAA
In 1986, Congress enacted the Emergency Planning and Community Right-to-Know Act
(EPCRA) to assist state and local planning entities in preparing to respond to chemical releases.
Because preventing accidents is preferable to responding to them, Congress added Section 112(r)
in 1990. It requires that owners and operators of stationary sources detect and prevent, or
minin,.ize the effects of accidental releases whenever extremely hazardous substances are present
at the facility. The regulations issued to Section 1 12(r)(7) define these requirements and
establish the deadlines for compliance. The general duty clause in Section 1 12(r)(1) has much
broader applicability that the regulations which do not require complaince until June 1999. The
general duty clause has been in effect and enforceable since 1990. It applies to any facility where
extremely hazardous substances are present.
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Section 112(r) provides thxee principal authorities for EPA to implement:
1. The general duty clause in section 1 12(r)(1)’ 2 - The General Duty Clause is the
umbrella authority. It covers the largest universe of substances and processes. It
establishes broad obligations on the owners and operators of stationary sources.
2. Regulations - The CAA also provides for EPA to publish regulations to specify
chemical accidental release prevention, detection, and mitigation requirements for
a subset of the extremely hazardous substances and processes. Specifically,
Section 11 2(r)(3) of the CAA mandates that EPA establish a list of regulated
substances and Section 1 12(r)(7) requires that EPA impose specific accidental
release prevention, detection, and mitigation requirements for certain sources.
3. Emergency Powers - Section 1 12(r)(9) gives EPA the authority to issue orders and
seek judicial relief to abate a danger or threat when an actual or threatened
accidental release may cause an imminent and substantial endangerment to human
health or welfare or the environment. Section 11 2(r)(9) provides:
In addition to any other action taken, when the Administrator
determines that there may be an imminent and substantial
endangerment to the human health or welfare or the
environment because of an actual or threatened accidental
release of a regulated substance, the Administrator may
secure such relief as may be necessary to abate such danger
or threat, and the district court of the United States in the
district in which the threat occurs shall have jurisdiction to
grant such relief as the public interest and the equities of the
case may require. The Administrator may also, after notice
to the affected State in which the stationary source is located,
take other action under this paragraph including, but not
limited to, issuing such orders as may be necessary to protect
human health....
Section 1 12(r)(1) of the Clean Air Act Amendments states:
The owners and operators of stationary sources producing, processing, handling, or
storing [ any regulated or any other extremely hazardous] substances have a general
duty in the same manner and to the same extent as section 654 of Title 29 [ OSHA
General Duty Clause] to identify hazards which may result from such [ accidental]
releases using appropriate hazard assessment techniques, to design and maintain a
safe facility taking such steps as are necessary to prevent releases, and to minimize the
consequences of accidental releases which do occur.
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Generally, if there is a release of an extremely hazardous substance, the EPA CEPPO -
program office will conduct an investigation with OSHA. To accomplish this task, EPA and
OSHA have signed a Federal Memorandum of Understanding to coordinate the joint
investigă tion of certain chemical accidents in a manner in which the Chemical Safety and
Hazards Investigation Board would have investigated them. The MOU details the criteria to
determine what accidents will be investigated jointly by both agencies. The objectives of these
investigations are to identify the causes of accidents, to identify ways to prevent them in the
future, and to take enforcement action as appropriate.
Emergency Order Authority - Section 11 2(r)(9)
1. General Purpose
When EPA determines that there may be an imminent and substantial endangerment to
human health or welfare or the environment because of an actual or threatened accidental release
of a regulated substance, the Emergency Order authority of Section 11 2(r)(9) empowers EPA to
seek remedies in court or issue orders to abate such danger or threat.
2. Materials Covered
Regulated substances are defmed by the List and Thresholds Rule are listed at 40 CFR
Part 68. Excluded from the list of regulated substances are any air pollutants for which a
national primary ambient air quality standard has been established and substances, practices,
processes or activities regulated under the stratospheric ozone protection provisions of the Clean
Air Act.
3. Scope of the Order
Section 1 12(r)(9) covers stationary sources’ 3 , as defmed by the CAA. It requires state
notice prior to issuance and requires the Administrator to take action under Section 303 of the
CAA rather than Section 11 2(r)(9) whenever that authority is adequate to protect human health
and the environment.
4. Legal Issues and Applicability
No case law exists concerning CAA Section 112(r). Section 11 2(r)( 1) has been invoked
only once against a fertilizer manufacturer in Iowa as the result of an explosion which resulted in
13 Section 1 12(r)(2) defmes “stationary source” as “any buildings, structures, equipment,
installations or substance emitting stationary activities (i) which belong to the same industrial
group, (ii) which are located on one or more contiguous properties, (iii) which are under the
control of the same person (or persons under common control), and (iv) from which an accidental
release may occur.”
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fatalities. Because of the close similarity between CAA Section 112(r) and OSHA Section 654,
case law related to this provision may be relevant.
gven though Section 1 12(r)(9) is untested, enforcement personnel should focus on the
following issues when evaluating the use of this authority:
“Owners operators” means that both entities are responsible for compliance with
CAA 112(r) at the facility.
Accidental release is defined in the CAA as “an unanticipated emission of a regulated
substance or other extremely hazardous substance into the ambient air from a
stationary source.”
“Extremely hazardous substances” are not limited to the list of regulated substances
listed under section 112(r), nor the extremely hazardous substances under EPCRA.
The general duty provisions apply to owners and operators of all stationary sources
which have any “extremely hazardous substances.” Although there is no definition
for extremely hazardous, the Senate Report on the Clean Air Act provides criteria
which EPA may use to determine if a substance is extremely hazardous. The report
stated the intent that the term “extremely hazardous substance” would include any
agent “which may or may not be listed or otherwise identified by any Government
agency which may as the result of short-term exposures associated with releases to
the air cause death, injury or property damage due to its toxicity, reactivity,
flammability, volatility, or corrosivity” (Senate Committee on Environment and
Public Works, Clean Air Act Amendments of 1989, Senate Report No. 228, 10 1st
Congress, 1st Session 211 (1989) -“Senate Report”).
As the Senate report states, “the release of any substance which causes death or
serious injury because of its acute toxic effect or as a result of an explosion or fire or
which causes substantial property damage by blast, fire, corrosion or other reaction
would create a presumption that such substance is extremely hazardous.” Senate
Report at 211. Revisions to the list of regulated substances under CAA 112(r) do not
affect the applicability of the general duty provisions.
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Survey of imminent and Substantial Endangerment Authorities
This table does not provide an exhaustive list or description of every statuto authority that may be available to EPA to address
endangerments, hazards, releases, etc Rather, it summarizes significant aspects of several authorities that are similar to RCRA sec
7003
Statute
Materials
Covered’
Parties Co eied
Triggering Activity
Remedies
Time
Constraints
Consultation
wlStates
RCRA
7003(a)
any solid or
hazardous waste
(includes
petroleum)
any IersoiI (including
any past or present
gcncrator. transporter,
o/o) who has or is
contributing
handling, storage, treatment,
transportation or disposal that
may pi esent an imminent and
substantial endangennent to
health or the environment
Administrator may bring suit to restrain
from handling, storage. treatment,
transportation or disposal or ordcr action as
necessaiy Administrator may also issue
such orders as necessary to protect public
health and the environment
N/A
notice
requircd
RCRA
3008(h)
hazardous waste
from a TSD
subject to interim
status
requirements
(EPA interprets to
include hazardous
constituents)
o/o of TSD
release to the environment
Administrator may issue an order requinng
corrective action, suspend or revoke
interim status, or require other response
method as deemed necessary to protect
human hlteah or the erivironincnt Or,
adiuiiiistrator may commence a civil action
for appropriate relief, including permanent
or tcm riporary injunction
N/A
not required
See definitions at end of text
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- Statute
Mflterials Parties Covered Triggering Activity
Covered -
- Remedy - .
- Duration
Consultation
Wi States
RCRA
30 I 3
.
hazardous waste
.
present nb of a facility
or site at which
hazardous waste is or
has been treated, stored
or disposed of -
(if current 0/0 could
not be expected to
know, then most recent
previous 0/0 who could
be expected to know)
presence or release thai may
present substantial 1 hazard to-
human health or the
environment
.
Administrator may issue an order to require
the owner or operator to conduct
monitonng. testing, analysis, and reporting
as the administrator deems reasonable to
ascertain nature and extent of hazard If
anyone does not comply the administrato(
may commence a civil action
person to whom
order is issued
must submit a
proposal to cany
out administrators
orders within 30
days
not required
-
-
‘
.
-
CERCLA
104(a)
•
any hazardous
substance or
pollutant/contami
nant
current 0/0. o o at time
of disposal, generator,
transporter who
selected site
- - -
actual or substantial threat of
release -
.
Perform or arrange for removal or remedial
action or any other response measure
consistent with the National Contingency -
Plan (EPA can seek cost reimbursement)
No UAO authonty
N/A
not required
CERCLA
104(eX5)
Listed hazaidous
substances (as
defined by
CERCLA §
10 1(14))
.
persons who have
relevant information of
a release or threatened
release
If consent is not granted to
access information relevant to a
release or threatened release of
a hazardous substance, entry to
vessel, facility, establishment
where a hazardous pollutant is -
stored or released, or-inspect
and obthin samples
President may issue a compliance order,
after reasonable notice is provided
President may ask Attorney General to
commence civil action to compel
compliance with a request or order
. -
-
N/A
.
-
.
-
.
.
CERCLA
106(a)-
hazardous
substance
current 0/0. o/o at tir e
of disposal, generatt r.
transporter who
selected site -
-
actual or threatened release that
may present an .imminent and
substantial endangerment to
public health or welfare or the
environment
Commence a civil action or issue orders as
may be necessary to protect public health
a d welfare and the environment
•
N/A
.
—
notice
required -
2 Legislative history indicates that the standard for substantial hazard is lower than the standard for imminent an d substantial
endangerment - - . -
2
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1 Stntute
Materials Parties Covered
Covered
Triggering Activity
Remedy
-
Duration
Consultation
WI States
CWA
31 1(c)
any quanhit’y of oil
or CWA
hazardous
substance
ofoof vessel or facility
•
discharge or substantial threat
of discharge posing substantial
threat to public health or
welfare -
in accordance with the National
Contingency Plan, perform or direct
actions to remove the discharge or to
mitigate or prevent the threat of discharge
Remove, and if necessary, destroy a vessel
discharging, or threatening to discharge
N/A ‘
not required
CWA
311(c)
reportable
quantity of oil or
CWA hazardous
substance
(reportable -
quantity)
0/0 of vessel or facility
.
actual or threatened discharge -
that may be an. imminent and
substantial threat to public
health or welfare
commence a civil action or issue orders ai
may be necessary to proteci the public
health and welfare, or refer abatement
action to DOJ
N/A
- —
.
-
required
CWA 504
pollution
-
any person causing or
contributing to
pollution
conditions presenting an
imminent and substantial
endangerment to health or —
welfare, including livelihood
•
commence a civil action or seek ajudicial
order to restrain any person causing or
contributing to the pollution to stop
discharging or to take other neccssary
action
N/A
not required
-SDWA
1431
- -
contaminant
-
-
any person causing or
contnbuting to the
endangerment
contaminant that is present in or
is likely to enter public water
system or underground source
of drinking water that may
present an imminent and
substantial endangerment to the
health of persons
take actions as necessary and practicable in
light of such imminent endangerment and
to prevent imminent endangerment
Actions include but are not limited to
issuing orders and commencing civi} action
N/A -
•
.
.
-
to extent
practicable
CAA 303
-
air pollution
any person cau mg or
contributing to the
pollution
—
conditions presenting
imniincmit aiid substantial
endangerment to public health
or welfare or the environment
commence civil action or issue
administrative order to stop emission of air
pollutants or to take such other action as
may be necessary -
- -
-
effective not more
than 60 days.
however,
judicial relief
beyond 60 days is
possible
required
3
-------
Statute
Materials Partie s Covered - Triggering Activity
Covered
Remedy - -
Duration
.
Consultation
wl States
CAA
I 1 2(rX9)
regulated
substance
olo of a stationary
source
-
actual or threatened accidental
release that may present an
imminent and substantial
endangerment to human health
or welfare or the environment
administrator may secure relief in court
May also issue orders necessary to protect
human health, after they notify state
.
-
N/A
-
not required
.
TSCA 7
imminently
hazardous
chemical
substance or
mixture or article
containing such a
substanc ’e or
mixture
any manufacturer,
processor or disinbutor
manufacture, processing or
distnbution that presents an
imminent and unreasonable risk
of widespread injury to health
or the environment
-
commence a civil action for seizure or
issue an order to secure necessary relief
-
N/A
-
not required
TSCA
5( 1)
new chemical
substance
requiring notice
any manufacturer,
processor or distributor
manufacture, processing,
.distnbution, use or disposal that
presents or will present an
unreasonable risk of injury to
health or the environment
issue rulemaking regarding use of the
chemical substance, issue an admiLlistrativc
order or seek ”injunctive relief in district
court
-
N/A
-
not required
-
-
FIFRA
6(cX3)
Any registered
pesticide covered
by FEFRA
.
registrantof the
pesticide
determination that the
suspension of a pesticide’s
registration is necessary to
prevent an imminent hazard
-
in an emergency, the Administrator may
suspend a pesticide regisiration w/o
notice, EPA then must issue a notice of
intent to cancel or change classification
wilhii 90 days
N/A - - -
.
not required
EI’CRA
323(b)
listed hazardous
substances
covered by 311.
312. 313
.
facility 0/0
Medical emergency or chemical
identit needed to assist in
emergency lust aid or
individuals have been exposed
to the chemical -
Health professional nay bring action in - -
U S district court to require facility 0/0 to
provide the information
‘
N/A
.
•
not required
-
4
-------
Definitions of Materials Covered
RCRA
“Solid waste”- any garbage. refuse, sludge from a waste treatment plant, water supply treatment plant,’or air pollution control facility, and other discarded matenal including,
solid. liquid, semisolid or contained gaseous matérial resulting from industrial, commercial. rńiniiig. and agnculture operations, and from community activities Such term does include
solid or dissolved material from domestic sewage, irrigation return flows or indiIstnal discharges from point sources Or special nuclear or byproduct material
“Hazardous waste”- a solid waste, or combination of solid wastes, which because of its quantity. concentration, or physical, hemical, or infectious characteristics may cause
or significantly contnbutc to incicase to mortality and illness, or poses a substantial present or potential hazard to human health or the environment -
CERCLA section 101 (14) and 101 (33) - -
“Hazardous Iubstance”- hazardous substances designated under CWA, or any additional element, compound, mixture, solution, or substance designated under CERCLA
Any hazardous waste under RCRA Any to ic pollutant listed under pretreatment provisions oICWA Any hazardous air pollutant under sec 112 of CAA Or any imminent hazardous
chemical substance for which the administrator has taken action under TSCA section 7. Such term does not include natuial gas or petroleum products
“Pollutant or contaminant”-any element, compound. substance or mixture which after release into the environment and upon exposure, inhalation, inge”stion, or assimilation
into any organism will or may reasonably be anticipated to cause ,death, disease, behavioral abnormalities, cancer., genetic mutation, physiological malfunctions, or physical ieformatuons
Such term docsnot include natural gas or petroleum products -
CWA sec. 311. See EPA guidance on Section 311(c) and (e) Orders, issued July 1. 1997
“Oil”- oil of arty kind or in any form, including, but not limited to. petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil’
“Hazardous.substnnce’- substance designated through rulemaking as elements or compounds which, when discharged in any quantity into or upon navigable waters of the
US or ad omning shorelines or the waters or the contiguous zone or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which
may affect natural resources belonging to. appcrta ning to or under the exclusive management authonty of the US present an imminent and substantial danger to the public health or
- welfare, including, but not limited to fish, shellfish, wildlife, shorelines, and beaches.
CWA General Provisions -
“Pollutant” - dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge. munitions, chemical wates, biological materials, radioactive matenals, heat.
wrecked or discarded equipment. rock. sand cellar dirt and industrial, municipal and agncultural waste discharged into waler (does not mean “sewage from vessels.” water, gas or other
matenat which is injected into a well to facilitate production of oil or gas) -
SDWA
“Contaminant” - any physical, chemical, biological, or radiological substance or matter in water
CAA sec. 303 - -
“Au’ pollutant” - any air pollution agent or combination of such agents, including any physical. chemical, biological, radioactive substance or matter which is emitted into or
otherwise enters the ambient air Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identifies such precursor
CAA sec. 11 2(rX9) -
“Regulated substance”- promulgated initial list of 100 substances which, in the case of accidental release, are known to cause or may be reasonably anticipated to cause
death. injury, or serious adverse affects to human health or environment. Initial list includes chlorine, anhydrous ammonia, methly chlonde. ethylene oxide. vinly chloride. methly
isocyanate. hydrogen cyanide, ammonia, hydrogen sulfide, toluene dissocyanate. phosgene, bromine. anhydrous hydrogen chlonde. hydrogen fluoride, anhydrous sulfer dioxide, and
sLmlfer (rioxide No air,pollutant for which a national pnmary ambient air quality standard has been established shall be included on any such list Nor is any substance, practice, process,
or activity regulated under the Stratosphenc Ozone Protection provisions subject to r gulations under this subsection
5
-------
• TSCA
“Chemical substance”- any organic or inorganic substance of a particular molecular identity, including (i) any combination occumng in part or whole, (ii) any element or
uncombined radical Such term does not include a mixture. pesticide, tobacco, ant nuclear material, any food. drug. or cosmetic, and any article in which the sale of which is subject to
thc tax imposed by section 4181 [ RC -
TSCA sac. 7 - -
“Imminently hazardous chemical substance or mi ture”-a chemical substance or mixture whi€h presents an imminent and unreasonable risk or scrous or widespread injury
to health or the environment before a final rule under 2605 of this Ifile can protect against such nsk. ‘ -
FIFRA -
“Pesticide”- any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended
for use as a plant regulator. defoliant, or desiccant Such term does not include any article that is anew animal drug - - - - - -
“Device”- any instrument or contnvance(other than a firearm) which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal
life(olher then man, bactena. virus, or other microorganism) Such term does not include equipment used for the application of pesticides when sold separately -
‘EPCRA - -
“Hazardous chemical”- any toxic chemical subject to section 313 However such term does not include the following (1 )Any’food, food additive, color additive, drug, or
cosmetic regulated by FDA (2) Any substance present as solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use (3) Any
product used for personal, family or household purposes, or is present in the same form and concentration as product packaged for distnbution and use by the general public. (4) Any
,sLlbstance to the extent ills used in a research lab or a hospital (5) Any substance to the extent mims used in agnculture or is fertilizer
6
-------
-------
ADMINISTRATIVE O1wEl s
ORDER
CAA § 303
In re Minerec Mining Chemicals, No. R9-94-34. Region 9
FACTS
Facility’s ongoing releases of hydrogen sulfide and other gases caused
nearby residents to be hospitalized or seek medical treatment. While
the local air district has attempted to decrease the level of
contamination in the atmosphere, the threat of further discharges from
the facility remains.
RELIEF ORDERED
Shutdown manufacturing operations; no new manufacturing operations
.
may begin; report by telephone each day (including weekends) on the
status of shutdown efforts.
ORDER
CAA § 303
,
In re Trinity American Corp.. Region 4
FACTS
Residents living near a foam and fiber pad manufacturing plants
‘
reported experiencing severe headaches, chest pain, dizziness, etc. The
state environmental agency recommended residents evacuate and
ordered Trinity to cease all manufacturing operations. Six of thirteen
,
residents were diagnosed with reactive airway disease attributable to
environmental exposure., S
RELIEF ORDERED
Shutdown manufacturing operations until EPA determines operations
will not present an imminent & substantial endangerment. If Trinity
intends to resume operations, must submit a written proposal that
,
includes measures to protect residents living near the plants:. EPA
must, approve proposal.
ORDER
CAA § 303
In re Shallow Water Refinery, No. VII-97-CAA-120. Region 7
FACTS
Reclamation and demolition,activities at an oil refinery caused airborne
S
releases of asbestos. Inspectors observed large quantities of friable
‘
asbestos lying on the ground and children playing inand around thç
asbestos.
RELIEF ORDERED
Cease all activities at the refinery; keep all minor children outside the
property; restrict access to the refinery; cease all disposal and removal
of property from the site; provide records to EPA of all names and
addresses of facilities where metals have been salvaged; provide
‘
AHERA certified plan to bring facility into compliance.
, 5 ‘ ‘5
5’ 5,
5
‘S. — 5 ,
—1—
-------
ORDER
CERCLA § 106(a)
In re Tropical Fruit. S.E., No. II.CERCLA-97-O301. Region 2
FACTS
.
‘
Farm sprayed its crops with high-pressure spraying machine, causing
pesticides and fungicides to drift onto nearby residential property.
-Residents complained of adverse health effects, odors coming from the
farm during spraying operations, and being hit by spray. Farm
violated TRO.
RELIEF ORDERED
n
Cease spraying pesticides and fungicides in such a manner that causes
substances to drift or migrate beyond farm’s boundaries; develop and
implement an EPA-approved plan to apply substances so that they will
not drift; do not spray any pesticide or fungicide in a manner
inconsistent with its label; all activities required under the order must
be performed by well-qualified, licensed persons; provide monthly
progress reports. -
..
ORDER
.
.
CERCLA § 106(a), 122 and SDWA § 1431
In re U.S. Dept. Of Agriculture Commodity Credit Corporation, No.
VII-90-F-0037. Region 7
FACTS
Grain storage bin facility contaminated a town’s public water supply
with carbon tetrachloride, carbon disulfide and malathion.
RELIEF ORDERED
-
.
.
Discover and record the locations of, and the owners of, all drinking
water wells that may be effected by the contamination; develop and
implement an EPA-approved plan to determine the extent of the
groundwater contamination; submit to EPA a draft report evaluating
alternative response actions and selecting the action to be taken at the
site; implement the EPA approved response action; carry out all
operations and maintenance of the response action systems; submit
monthly and quarterly progress reports.
ORDER
.
FACTS
,
.
CERCLA § 106(a)
In re Penrose Ave. Site, No. 111-90-30-DC. Region 3
EPA conducted an emergency assessment of an open lot in
Philadelphia that a salvage company used for dumping demolition
debris, refuse, and garbage. EPA found 50-60 drums of unknown
materials located in or near two roll-off dumpsters, and materials
leaking from the drums and dumpsters onto the ground. Many drums
were dented, rusted, opened, and contained holes, and one drum was
outside the roll-off where it had been crushed and was leaking. Air
monitoring tests indicated the presence of organic vapors in and near
the drums as high as 580 ppm. Test of materials in drums indicated
the presence of PCBs, chlorinated benzenes, and chlorinated solvents.
-2-
-------
RELIEF ORDERED
•
Retain a qualified contractor to conduct necessary response activities
identified in the order; submit a work plan to EPA detailing response
measures to be taken and a schedule of operations; implement the
EPA-approved work plan; submit weekly progress reports; within ‘10
days of completion of the work plan activities, submit a written report
to EPA detailing action taken, and notifying EPA of such completion.
‘
ORDER,
CWA § 311
In re Crofts Oil Co., No. 8-CWA-VI1I-94-20. Region 8
FACTS
‘A six-inch deep gasoline plume estimated to contain 7000 gallons of
gasoline contaminated an underlying water table aquifer and posed a
substantial threat of discharge of oil to a nearby creek.
RELIEF ORDERED
‘
Locate and identify source of the gasoline discharge; initiate measures
to ensure that no further contamination occurs; implement EPA-
approved plan for containment and remediation of the gasoline leak,
including a registered professional engineer’s evaluation of the extent
to which the aquifer has become contaminated; rno nitor the
contaminant plume to determine the extent of future migration, the
probable path of the plume, and to ensure the adequacy of the remedial
action. [ see also SDWA § 1431 order]
ORDER
‘
CWA 311(c), SDWA § 1431, RCRA § 7003
In re Pickett Road Terminal Site, No. RCRA-3-004-IT, S. Region 3
FACTS
•
•
S
An.investigation of an oil release from an 18-acre petroleum
distribution facility into a nearby creek revealed that there was and
may still be a release of petroleum hydrocarbons at and around the
site, and that there is a plume of oil in an aquifer that provides water
to nearby residents. Sixteen hiindred homes are in the immediate
vicinity of the facility. Ninety-four private drinking water wells tap
into the aquifer and numerous surface water bodies are located near the
facility. Oil was found in 55 out of 142 monitoring wells, spanning
approx. 16 acres of ground water surface. EPA estimated that the
total volume of oil underground is greater than’ 100,000 gallons. Air
monitoring at and around the site has recorded vapor levels of more
than 1000 units greater than background. Vapŕrs include a
combination of toluene, ethyl benzene, and/or xylene.
-3-
-------
RELIEF ORDERED
Notify EPA in writing of the identity and qualifications of all persons
who will be primarily responsible for developing the Emergency
Measures Plan; perform EPA-approved investigative measures (locate
all on-going and/or past leaks, spills, orother releases of oil, perform
air monitoring in stormwater sewer system, determine plume’s
‘migration ‘rate); perform EPA-approved corrective actions (remove
free-phase oil, construct trench and well barrier system); implement
site monitoring program; properly ‘collect, store, transport and dispose
of all contaminated soils and solids.
ORDER
•
RCRA 97003
In re County of Westchester, No. 94-7003-0215. Region 2
FACTS
•
:
‘
,
Numerous water, soil, and sediment samples taken at a county target
and trap and skeet range by the- county health department, the state
environmental agency, and EPA revealed elevated levels of lead in the -
soil and water. The ATSDR issued a health consultation stating that
the levels of lead contamination “pose a significant threat to human
health.” Workers, site residents, users of the range, hikers, and bridle
trail users have a potential exposure to lead from spent lead shot,
contaminated soil, water, stream sediments, and related dust.
RELIEF ORDERED
•
‘
Post danger/keep-out signs at the range’s entrance and at the entrance
to all trails that pass within one mile of the range; restrict access to all
hiking and bridle trails within one mile of the range’s border; restrict
access to.a tributary that traverses the property and is adjacent to a
school playground; remove residual clays pigeons, shotgun wadding and
pellets; submit site assessment results and an Environmental Impact
Analysis Report to EPA; implement EPA-approved remedial option;
submit quarterly reports. - -
S S
ORDER
RCRA § 7003
In re Oliver R. Hill, No. 7003-95-0203. Region 2
FACTS ‘
‘
‘
‘
Leaking gasoline from an UST contaminated the primary source of.
drinking water for two nearby residences. Another nearby residence
detected gasoline fumes while digging a groundwater well on his
property for the purpose of obtaining drinking water. Soil samples
revealed the presence of benzene, xylene, and toluene. Samples from
19 monitoring wells installed between the facility and residences
confirmed the contamination. The state environmental agency also
observed approx. 1 foot of pure product gasoline overlying the aquifer
‘in an approx. 200 foot square area located between the facility and
residences. Owner refused to sign order on consent.
I
-4-
-------
RELIEF ORDERED
Retain a professional engineer to assess the structural integrity of all
USTs, and to characterize the rate and extent of hazardous constituent
migration; repair or close any USTs that are found to be corroded or
potentially subject to failure; remediate soils and groundwater; submit
workplan to EPA which sets forth the procedures by which the owner
proposes to ch aracterize and remediate contaminited soils and
groundwater; implement EPA-approved workplan; post warning signs.
ORDER “
RCRA § 7003 I
In rč Rail Services. Inc., No. 91-14-R. Region 4
FACTS
.
.
An investigation undertaken to determine a railcar cleaning facility’s
compliance with a § 3008(h) Order revealed continuing releases of
hazardous wastes from many of the SWMUs identified in the Order,
and violations of numerous generator and interim status requirements.
Further, three separate explosions at the facility had killed one
employee and injured five others.
RELIEF ORDERED
‘,
‘.
Cease and desist the receipt, generation, and management of all solid
and hazardous waste; provide security; post warning and no smoking
signs; provide classroom instruction; equip the facility with fire
fightingequipment; amend contingency plan; identify, describe, and
quantify all hazardous waste at the facility; inspect containers for leaks
and transfer hazardous waste from leaking containers; close containers
that do not have lids; create aisle space.
ORDER
RCRA § 7003
In re Chief Supply Corp., No. VI-7003-97 [ first order]. Region 6
FACTS
•
,
,
Explosion and fire at a hazardous waste collection, storage, fuel
blending, and recycling’ facility consumed many of the 1450 drums of
hazardous waste in storage; open flames and a smoke plume rose
1000-3000 feet above the facility; three employees were injured, one
died; all persons within 1 1/2 miles,to the north and one mile to the
east of the facility were evacuated. Three days after the fire, an
overturned drum of acid mixed with wastewater from the firefi hting
efforts, resulting in the’ release of a large acid plume. The plume
migrated offsite and dissipated in about 10 minutes. Later, facility
personnel poured water on a drum’ of solidified matenal that was
smoking and smelled of ammonia, causing the release of a large white
plume. The reaction become more intense wail the waste was covered
with’ soil. ‘ t
-5-
-------
RELIEF ORDERED
.
•
Cease and desist the receipt, generation, and management of all solid
and hazardous waste; post warning signs; submit a modified hazardous
waste permit application and air quality permit; submit a report
detailing facility operations before the fire and indicating cause of the
fire; submit a report. certifying integrity of equipment before returning
it to service; update Facility Contingency Plan; provide classroom
instruction on hazardous waste management procedures to all facility
personnel; provide monthly progress reports; submitresults of all
sampling and tests to EPA. [ see also second order below]
ORDER
.
RCRA § 7003
In re Chief Supply Corp., No. VI-7003-97 [ second order]. Region 6
FACTS The investigation into the explosion at the above facility resulted in the
issuance of a second administrative order. The facility did not have an
air permit to construct or operate the facility. There were no air
emission controls on the ash discharge of a dryer that heats hazardous
wastes to drive off volatile compounds or on a hazardous waste
shredder. The dryer also leaked and emitted vapors from the
inspection plates.. Nearby residents complained of frequent strong
odors emanating from the facility. Residents experienced trouble
breathing, persistent coughs, migraine headaches, chest pressure,
chemical burns, sinus problems, allergies,’ noseand throat irritations,
and asthma. After a release that turned the sky yellow, ‘one resident
started coughing and was taken to the hospital, where she stayed for 6
weeks. Dead birds and squirrels were found in the resident’s yard.
During a search of the building where the explosion and fire očcurred,
liquid was observed percolating through the building’s concrete wall
and accumulating in a pit. About 10 gallons had accumulated and tests
indicated that the liquid contained 4-nitrophenol, phenol,
tetrachioroethene, and toluene. Another building contained 50 lb. sack
of ammonium nitrate that were deteriorating, sweating, and leaking.
The facility’s septic tank had also contaminated a field and 500 drums
were reportedLy buried on the facility’s property. Trailers on the site
contained 320 double-stacked drums that contained liquids, solids, and
full or partially full aerosol canisters of flammable materials. Approx.
40 residences are within a mile of the facility. The area around the
________________ facility is zoned agricultural . ,
-6-
-------
RELIEF ORDERED Post warning signs and install security fencing to control access to
contaminated areas; remove all leaking roll-off containers; perform a
• complete hazardous waste characterization of all containers and wastes
that are not properly labeled; properly label, store, and treatldispose of
any waste determined to be hazardous; remove septic tank and all
lateral drain field lines; backfill the area will clean soil and dispose of
all excavated materials as hazardous waste; conduct a survey to
determine where there are any buried drums on the facility’s property;
perform a complete hazardous waste characterization of the contents of
any buried drums and dispose of properly; locate all off-site water
wells within a 2-mile radius of the facility’s boundary;’ install, operate,
and maintain air quality monitoring stations, including on-site and off-
site down-wind stations; perform air emission source testing for all
active air emission sources at the facility; implement EPA-approved
RCRA facility investigation and corrective measures study to determine
the extent of contamination; implement EPA-approved corrective
measures; perform all work under the direction and supervision of an
engineer or geologist with expertise in hazardous waste site cleanup.
ORDER
RCRA 7OO3.
In re Redound Industries. Inc., No. II RCRA-7003-94-02 14. Region 2-
FACTS
Inspectors at two pen manufacturing facilities located within New York
• City observed the generation of spent solvents; more than 200
unidentified containers, primarily 55-gallon drums, within the
facilities; more than 25 unidentified 55-gallon drums on the sidewalk
outside of one facility; an intentional release of more than 10 gallons
of propyl alcohol onto one facility’s floor; several leaking drums that
had been unsuccessfully repaired with electrical tape; and the disposal
of trichloroethane waste into regular trash receptacles. Acetone soaked
wiping rags were also discarded in the trash and children frequently
rummaged though the trash dumpsters looking for discarded pens.
MOst of the waste in drums had been in storage for an indefinite period
of time and both facilities were located over environmentally sensitive
•
sole source aquifers. The facilities failed to notify EPA or the state of
their hazardous waste activities under RCRA § 3010.
-7-
-------
RELIEF ORDERED Post danger signs and take steps to prevent the unknowing entry of
persons ‘on the premises; conduct an initial visual inspection of all
containers and transfer contents of leaking containers; conduct daily
inspections of containers; inventory all containers; submit “Notification
of Hazardous Waste Activity” foi ms and a hazardous waste storage
nbtification and Part A application to EPA; sample and analyze content
of containers; ship drums containing hazardous waste offsite, using an
authorized transporter; submit a plan to EPA for approval for the
sampling and analysis of the materials contained in all sumps, pits, or
floor drains.
ORDER
,
RCRA § 7003, SDWA § 1431
In re Broomer Research. Inc., Nos. II RCRA-94-7003-0212A, II
SDWA-94-1431-0212B. Region 2
FACTS
.
‘
I
‘
.
Optical lense manufacturer, discharged sludge to the’ facility sanitary
septic system that is not connected to, any privately or publicly
operated waste water treatment works. Samples of the sludge
contained appreciable amounts of acetone, 1,1, 1-trichloroethene, and
radionucides. The facility is located in a mixed industrial and
residential area and is situated directly over one or more groundwater.
aquifers that are underground sources of drinking water for the
community. Several residences are located within a 1000 foot radius
of the facility. Fourteen public water supply wells are located within a
2 mile radius of the facility.
RELIEF ORDERED
.
-
.
Post warning signs and prevent unknowing entry of person and animals
onto the facility; identify all temporary and permanent drains, sumps,
pits, septic tanks, etc. and all other waste management units located
within the facility; characterize the chemical composition of each waste
stream generated at the facility; characterize the extent of migration of
any hazardous or radioactive constituents; Implement an EPA-approved
sampling and analysis plan, a medical monitoring program to assess
the exposure of workers at the facility, and a program for the
identification and management of hazardous wastes; close all
unpermitted temporary and permanent drains, sumps, etc.; submit a
plan for future operations; excavate containerize, and properly treat or
dispose of all contaminated soils; implement a groundwater
remediation system capable of effeciing rapid source reduction of and
preventing further migration of the hazardous constituents identified’ in
the aquifer.
-8-
-------
ORDER
•
RCRA § 7003
In re Akzo Nobel Chemicals. Inc., No. RCRA-III-OO5TH. Region 3
FACTS
.
••
During a chemical manufacturing facility’s cleanup and excavation of a
former polyvinyl chloride resin storage area, a thin layer of resin was
detected extending beneath an adjacent wetland area located on the
facility’s property. Subsequent facility test pits revealed the presence of
black ash material and’carbon disulfide plant waste. A portion of the
facility which includes the storage pits is listed on the NPL. Previous
test revealed that on-site soil and groundwater contained elevated levels
of vinyl chloride (VC), and offsite residential wells-were contaminated
with VC, 1 ,2-dichloroethane and 2,2,2-trichioroethane.
Tetrachioroethylene and trichloroethylene have also been released from
the facility. The facility is located approx. 1 mile from a creek and
during rainfall there is intermittent drainage of hazardous constituents
to a tributái y of the creek.
RELIEF ORDERED
•
Implemetit EPA-approved plan to sample carbon disulfide contaminated
area and if EPA determines it to be necessary, implement EPA-
approved interim measures to mitigate release of sulphur-containing
hazardous waite; implement EPA-approved RCRA facility
investigation to determine the presence, magnitude, extent, direction,
and rate of movement of any hazardous or solid wastes, or hazardous
constituents within and beyond the facility boundary; submit corrective
measures study and implement EPA-selected corrective measures;
implement EPA-approved waste minimization plan; review, assess the
effectiveness of, and revise the waste minimization plan, as deemed
appropriate by EPA, on an annual basis.
S
S
ORDER
SDWA § 1431 , -
In re Crofts Oil Co., No. 8-PWS-VIII-94-2 1. Region 8
FACTS
.
•
.
A six-inch deep gasoline plume estimat 1 to contain 7000 gallons of
gasoline was likely to enter a public water system or other
underground sources of drinking water. State and local officials did
not act to the degree necessary to protect human health because of
jurisdictional problems.
RELIEF ORDERED
Initiate measuresto ensure no further contamination; implement EPA-
approved plan for containment and remediation of the gasoline leak;
plan must include a qualified hydrogeologist’s evaluation of the extent
to which the aquifer and the drinking water distribution lines have
become contaminated; monitor and map the plume; take samples ’ every
two weeks of water in the public water supply distribution lines arid
have analyzed bya certified laboratory. [ see also CWA § 311 order]
9-
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ORDER
SDWA § 1431
In re City of Mayfield, No. YII-PWS-04. Region
FACTS
-
•
I
Wate r samples taken from a public water system tested positive for the
presence of total coliform. and fecal coliform. The system has appróx.
40 service connections and serves approx. 125 individuals. City failed
to notify persons served by the system’ or provide a copy of the public
notice to the state environmental agency.
RELIEF ORDERED
.
•
Chlorinate the water supply; issue a public notice to water users
regarding the presence of fecal coliform; take samples daily for
chlorine residual analysis; implement EPA-approved plan to produce
finished water that will not exceed the MCL for total coliform bacteria
and fecal coliform; provide public notice every three months of
violations, if they continue to exist; provide public notice of any future
MCL violations and monitoring deficiencies.
ORDER
SDWA § 1431
In re Richard Brannan, No. 8-PWS-VIII-96-003. Region 8
FACTS
‘
Inspection of public water system’s treatment plant revealed that the
filtration treatment technique for the public water supply was
disconnected and completely inoperative. Source of water for the
water system is of sufficiently poor quality that it must be filtered. The
water source is a high risk source because of the presence of livestock
and other sources of contamination within the watershed.
RELIEF ORDERED
.
.
Immediately provide a hand-delivered boil water notice to all
customers connected to the water system; provide water from an
alternate source; continue to provide weekly boil water notices until
water meets national water quality standards; provide a complete
evaluation to EPA of the public water system to determine changes
necessary; submit quarterly reports on progress made toward bringing
system into compliance with filtration requirements; monitor water and
provide results to EPA once every two weeks.
ORDER
,
SDWA § 1431
In ’ re Fifty Seventh & North Broadway Ground Water Contamination
Area Sedgwick County. Kansas, No. VII-SDWA-0l. Region 7
FACTS
•
•
,
Four businesses--a petroleum pipeline owner and operator, a gasoline
filling station owner and operator, a waste-oil refinery, and a paint
manufacturer--contaminated the soil, surface and ground water within
a 180-acre site. More than 1000 people reside within the area. Of the
27 contaminants in the soil and water, 16 exceeded health-based
standards. Until’ the municipal public water supply distribution system
- 10 -
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RELIEF ORDERED
.
.
Identify all homes and businesses using water from wells within the
site; offer and provide an adequate supply of bottled water to identified
homes and businesses; implement an EPA-approved plan to provide
homes and businesses with an alternative source of water or treatment
system; provide monthly status reports.
ORDER
SDWA § 1431
In re Imperial Irrigation Disthct, No. PWS-EO-93-160. Region 9
FACTS
-
.
•
,
An irrigation district provides piped water for human consumption to
ápprox. 6,000 persons’via a distribution system consisting of approx.
1,675 miles of open and unprotected canals and laterals running from
the Colorado River. The district’s customers use the water for
bathing, cooking, dishwashing, and oral hygiene. Some customers
may drink the water. The area surrounding the canals and -laterals
contains numerous potential sourées of contamination, including storm
water runoff, septic tanks, aerial pesticide, applications, wild and
domestic animals, and hundreds of miles of roads. The district has
failed to comply with thŕ SDWA’s monitoring requirements and does
not treat the water it supplies to its customers. EPA observed debris
floating on the water and submerged on the canal and lateral bottoms.
Seventy-seven water samples were found to be contaminated with ‘total
coliform. Thirty-one samples indicated the presence of fecal coliform
or E. coli.
RELIEF ORDERED
,
Mail public notification to all drinking water customers; certify to EPA
that this requirement has been met; implement EPA-approved plan to
ensure that new drinking water connections are not added to the
system; submit to EPA the names and addresses of all drinking water
customers, including the average volume of water billed to each
customer’s household per month for 1992; implement an EPA-
approved plan’ for: directly contacting customers who do not receive
an alternate source of safe water from a private distributor for
domestic use; providing an alternate source of safe water; monitoring,
contaminants in ,the water system; and managing the canal distribution
system to minimize the entry of contaminants.
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ORDER
.
SDWA § 1431
In re Upper Lake Porno Water Ass’n, No. PWS-EAO-9O-013. Region
9-
FACTS -
•
.
,
.
.
A public water system located on Indian land exceeded the MCL for
coliform bacterial for at least 6 quarterly compliance periods. The
system regularly serves 16 service connections and approx. 70 persons.
High levels of fecal coliform have been detected in several water
samples taken from the water system. Subsequent tests revealed that
the coliform contamination is widespread through the distribution I
system. Inspections of the system revealed numerous deficiencies,
including inadequate maintenance of, and failure to continuously use,
the chlorination system; lack of routine upkeep and maintenance of the
distribution system; failure to correct ‘cross-cqnnections in the
distribution systen ;, lack of routine upkeep and maintenance of the
welihead and pumphouse; and a deteriorating and insufficiently
protected water storage tank.
RELIEFORDERED
.
.
Advise all customers of the past year’s history of MCL violations and
the-presence of fecal coliform in the water supply; rnçet the MCLs for
coliform bacteria and if this cannot be achieved, provide an alternate
source of approved water for human consumption to all customers;
meet microbiological sampling and analytical requirements; sample and
test twice each month at representative points in the distribution system
for total coliform; sufficiently operate the disinfection/clilorination
system.
‘ORDER
‘
,
SDWA § 1431
In re Midway Heights County Water District, No. PWS-AO-86-02.
Region 9
FACTS
.
,
.
A public water system receives water from an open, unprotected canal
surface water system that runs for approx. -34 miles before the
system’s intake. The system supplies piped water to approx. 220
residences and 630 persons in a 4.5 square mile areas. The canal’s
watershed includes numerous contaminating sources, such as septic
tanks, animal corrals, junlcyards, a railroad, a freeway, and local.
roadways. Abundant fecal material has been observed alongside and
near the- canal. The system does not disinfect or filter the water. The
water exceeds the MCLs for turbidity and total coliform and contains
high levels of fecal coliform and fecal streptococci bact ria. Giardia
lamblia has been detected in, the tap water. The system has been
informed of these contaminants on numerous oCcasions, but has failed
to control, monitor, or report on the condition of the water to its
-customers. Customers have reported a high frequency of
gastrointestinal illnesses.
- 12 -
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RELIEF ORDERED Mail public notification to every customer; chlorinate to an extent
sufficient to meet the MCLs for thicrobiological contaminants and to
meet a chlorine residual of at least 0.5 mg/i; monitor coliform and
chlorine residual once per week at 3-5 locations within the distribution
system; make potable bottled water available to all customers; cease
connecting new customers to the distribution system; submit to EPA a
list of customers and their billing addresses; submit an engineering
report, prepared by a registered civil engineer who has experience in
water system design, containing: a characterization of the quality of the
incoming raw water, analysis of the existing water consumption by
season attributable to domestic and agricultural uses, an estimate of
future water demands, a description and costs of alternative methods of
producing drinking water, and a recommendation for a preferred
alternative; within 120 days of EPA’s approval of the engineering
report and preferred alternative, complete construction of the preferred
alternative.
.
, ,,
ORDER
SDWA § 1431
In re West Stockbndge Water Co., No. 92-05. Region 1
FAcTs
I ‘
.
-
,
Numerous water samples taken over a two, month period from a public
watei system indicated the presence of both total coliform and fecal
coliform. The system provides piped water for human consumption to
approx. 200 service connection and 1500 individuals. It failed to
notify customers of violations and potential adverse health effects. The
system also failed to monitor and submit 2 monthly turbidity reports.
RELIEF ORDERED
.
•
.
,
,
Within 30 days from the’ effective date of the order, meet the MCLs
for coliform bacteria; if this cannot be achieved, an alternate source of
approved water for human consumption must be provided; meet
microbiological sampling and analytical requirements; sample, and test
four times each month at representative points in the distribution
system, for total coliform; further test all samples which test positive
for any level of total coliform for the presence of fecal coliform;
report positive test results to EPA; operate the disinfection/chlorination
system to meet a chlorination residual of a least 0.1 mg/i; sample for
chlorine residual every week at no fewer than two representative
points; submit results of the chlorine residual an lysis to EPA.
ORDER
SDWA § 1431
In re Shoshone-Bannock Indian Tribes Fort Hall Indian Reservation,
No. 1094-02-17-1431. Region 10
•
- 13 -
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FACTS
‘
‘
•
-
Drinking water samples of 4 public water systems on an Indian
Reservation revealed the presence of the pesticide ethylene dibromide
(EDB). EDB is present in the aquifer that underlies the reservation
and that serves as the under ground source of drinking water for
reservation residents. EDB has been found to cause cancer in animals
and is a suspected human carcinogen. EDB has also been found to
have a number of acute neurological effects on humans. -
RELIEF ORDERED
.
•
.
,
.
S
The Fort Hall Townsite public water system must immediately cease
supplying water from its primary ground water source; all 4 public
water systems must immediately conduct coordinated public education
and public notification to ensure that reservatiori residents do not use
contaminated water for drinking or domestic purposes; advise all
customers of the past year’s history of MCL violations and of the
presence of EDB and nitrates in the water supply; provide the public
notification to all radio stations, television stations, and newspapers
that serve the reservation; develop plans and schedules to implement
Best Management Practices for agricultural fertilizers and pesticides;
provide alternate sources of water for drinking and other domestic
purposes; implement EPA-approved plan for selection and
implementation of water treatment systems to reduce identified
drinking water contaminants to comply with EPA drinking water
standards; implement EPA-approved plan for a ground water
monitoring study to characterize the areal ground water extent and
concentration levels of pesticides and nitrates; sample once a month for
pesticides and nitrates and have samples analyzed by a certified
laboratory. -
S S
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‘•.•,-
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I
. it
‘44R tgci
OSWER Directive Number 9833.0-la
MEMORAN DIIM
SUBJECT: Guidance on CERCLA Section 106(a) Unilateral
Administrative Orders for Remedial Designs and Remedial
Act ions
FROM: Don R. Clay, Assistant Administrator
(y-office of Solid Waste and Emergency
James M. Strock, Assistant Administrator •,
Off ice of Enforcement and Compliance Monitoring
TO: Regional Administrators,
Regions I-X
I. Introduction
This memorandum sets forth general principles governing the
Agency’s unilateral administrative order authority for remedial
designs and remedial actions under section 106(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (CERCL 1 A or Superfund).’ Policies and
procedures to be followed when issuing unilateral orders for
remedial actions are provided.
The memorandum has the following sections:
o Introduction
o The Role of Unilateral Orders in the CERCLA Remedial
Process
‘This memorandum ‘and the forthcoming memorandum entitled
“Guidance on the Issuance of CERCLA Section 106(a) Administrative
Orders for Removal Actions,” together supersede the September 8,
1983 “Guidance Memorandum on Use and Issuance of Administrative
Orders under §106(a) of CERCLA” (OSWER Directive number 9833.0)
and the February 21, 1984 guidance on “Issuance of Administrative
Orders for Immediate Removal Actions” (OSWER Directive number
9833.1A). Changes to the guidances are the result of statutory
amendments and evaluation of Agency experience.
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OSWER Directive Number 9833.0—la
o Legal-Aspects of Section 106 Orders for Remedial
Design/Remedial Action
- Background Information about Section 106
Authorities
- Statutory Requirements of Section 106
Administrative Orders
— Judicial Review of Unilateral
Orders
o Possible Recipients of Unilateral Orders
o Case Specific Considerations
- Decision Whether to Issue an Order
— Determining the Identity of the Respondents
o Elements of Unilateral Orders
o Modification of Unilateral Orders
o Procedures Relating to Issuing Unilateral Orders
- Special Notice Procedures
- The Conference
o Specialized Forms and Use of Unilateral Orders
o Continued Negotiation After Issuance of. an Order
o Noncompliance with Unilateral Orders
o Note on Purpose and Use of this Memorandum
Appendix A defines section 106 unilateral and consent
orders, and their judicial counterparts.
This memorandum applies to all CERCL section 106 unilateral
orders, issued to compel Potentially Responsible farties (PRPs)
to conduct remedial designs and remedial actions. For a
discussion of settlement principles relevant to remedial actions,
see the “Interim CERCLA Settlement Policy,” dated December 5,
1984 (OSWER Directive number 9835.0), also published at 50 FR
5034, February 5, 1985). A guidance on the issuance of CERCLA
§106(a) administrative orders for removal actions is under
development.
2 This guidance does not specifically address CERCLA remedial
action at Federal facilities. See the “Federal Facility
Compliance Strategy” (Office of External Affairs, November 1988)
for information about CERCLA enforcement actions against Federal
facilities, and the “Federal Facilities Negotiation Policy,”
(OSWER, August 1989).
3 For information on CERCLA enforcement practices relating to
municipalities, see the “Interim Policy on CERCLA Settlements
Involving Municipalities and Municipal Wastes,” (December 6,
1989) (OSWER Directive number 9834.13).
2
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OSWER Directive Number 9833.0—la
II. The Role of Unilateral Orders in the CERCLA Remedial Program
An objective of Superfund enforcement is to place ultimate
responsibility for the costs of cleaning up Superfund sites on
those who contributed to the problem. EPA prefers to obtain
private-party response action through the negotiation of
settlement agreements with parties willing to do the work.
When viable private parties exist and are not willing to reach a
timely settlement to undertake work under a consent order or
decree, or prior to settlement discussions in appropriate
circumstances, the Agency typically will compel private-party
response through unilateral orders. If the PRPs do not comply
with the order, EPA may fund the response or may refer the case
for judicial action to compel performance and recover penalties.
Unilateral orders should be considered as one of the
primary enforcement tools to obtain RD/RA response by PRPs.
Unilateral orders can provide an incentive for PRPs to settle,
can help to control settlement negotiation deadlines, and can be
used to force commencement of wordc at the site when settlement..
cannot be reached. Unilateral orders can also help to encourage
the organization and coalescence of disorganized PRPs. Because
many PRPs promptly comply with unilateral orders, they also help
to conserve the limited funds available for government-financed
cleanup.
If PRPs do not comply with unilateral orders, the Agency has
the flexibility to determine whether to perform a Fund—financed
cleanup and seek to recover those costs from the PRPs through a
judicial referral for cost recovery, punitive damages’, and
penalties. 5 The Agency also may prepare a referral for judicial
enforcement action pursuant to section 106, to compel compliance
and to exact penalties. Regardless of the route the Agency
chooses to take upon noncompliance with a unilateral order, PRPs
remain potentially liable for the response action. Federal
courts can compel PRPs to conduct the response action and impose
penalties. If the Agency chooses to clean up the site with the
Fund, at a minimum the PRPs will be potentially liable for cost
recovery of the funds expended. In addition, Federal courts can
‘CERCL& *107(c) (3) authorizes punitive damages from one to
three times the costs incurred by the Fund.
5 CERCL section 106(b) (1) provides that “any person who,
without sufficient cause, willfully violates, or fails or refuses
to comply” with any order, may be fined up to $25 OO0 for each
day in which the violation occurs or the failure to comply
continues.
3
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OSWER Directive Number 9833.0—la
compel PRPs to pay penalties, as well as punitive damages of up
to three times the costs incurred by the Fund.
Regions should incorporate issuance of unilateral orders
into their site management plans consistent with the following
general principles. First, in the context of orders for RD
and/or RA, during the RI/FS, the Region should review the PRP
search to ensure that it is complete.
Second, apart from liability, the development of the factual
basis for the response action required in the order should begin
during the RI/FS process. When reviewing deliverables during the
RI/FS, a Region should always keep in mind that a unilateral
order may need to be issued on the basis of the RI/FS. The
Region should ensure that documents developed during the RI/FS
contain enough information to support all the findings necessary
•to support issuance of a unilateral order, i.e., that because of
an actual release or threat of release of one or more hazardous
substances from a facility there may be an imminent and
substantial endangerment to the public health or welfare or the
environment. It is important to pay particular attention to the
baseline risk assessment. Baseline risk assessments provide an
evaluation of the potential threat to human health and the
environment in the absence of any remedial action. 6 They provide
a basis for determining whether or not remedial action is
6 Before a unilateral order is issued, the results of any
health assessment issued by the Agency for Toxic Substances and
Disease Registry (ATSDR) also should be reviewed for consistency
with the order. Nonetheless, unavailability of, or the
possibility of differences with, an ATSDR health assessment
should not discourage issuance of a unilateral order. ATSDR’s
assessments and EPA’s risk assessments are based on different
methodologies, with different purposes. ATSDR’s health
assessments are preliminary assessments usually performed before
the site remedial investigation has been completed. The main
purpose of the ATSDR health assessment is to determine if there
is a significant risk to human health requiring steps to reduce
exposure such as providing alternate water supplies or relocating
individuals. ATSDR also uses the results of the health
assessment to determine if additional studies such as
epidemiological studies o health surveillance programs should be
performed. As a resu]t, the ATSDR health assessment and EPA’S
risk assessment may reach different conclusions in some
circumstances. Where an ATSDR health assessment (done before the
decision document is signed) appears to be different from EPA
risk assessment results, the difference should be addressed in
the administrative record for the selection .of the response
action.
4
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OSWER Directive Number 9833.0-la
necessary and a -justification for performing remedial action.
They will also be used to support imminent and substantial
endangerment findings in section 106 orders. In addition, a
statement of work (SOW) may be included or referenced in the
order. 7
The third general principle to be followed is that the
issuance of unilateral orders must be considered before a Fund—
financed response can proceed at a site. Unilateral orders are
typically to be issued at the end of the special notice period if
settlement is not reached at a site, an extension of negotiations
is not warranted, and the case meets statutory criteria and case
specific considerations set forth in this guidance. Also,
unilateral orders should be issued routinely before cases are
referred to the Department of Justice (DOJ) under section 106.
Unilateral orders can be used to establish a case for seeking
treble damages in the event of noncompliance by the PR? and where
the Fund is used.to clean up the site.
In cases where the Region decides not to issue a unilater&l
order, prior to commencing a Fund-financed response, the Region
must prepare a written justification explaining the decision not
to issue a unilateral order. 9 A copy of the justification must
be kept in the Region’s enforcement files. Examples of instances
where adequate justification may exist include those cases which
T In such instances, the SOW is an integral part of a
unilateral order because it provides the detailed requirements
for the development of the RD/PA workplans and reporting
requirements.
8 See “Guidance on CERCLA Section 106 Judicial Actions,”
February 24, 1989 (OSWER Directive number 9835.7).
9 The Region should notify Headquarters in writing at least
two weeks prior to obligation of funds with the reasons for not
proceeding with a unilateral order. The written explanation
should describe i T t general terms the reasons for not going
forward with the order. The written explanation should come from
the Regional Waste Management Division Director (after
consultation with the Office of Regional Counsel) to the
Director, OW?!. The Regions should also send a copy to the
Associate Enforcement Counsel, OECM-Waste. Additional
information on procedures to follow where a Region decides not to
issue a unilateral order prior to commencing a Fund—financed
response may be issued periodically. See “Use of CERCLA Section
106 Unilateral Enforcement for Remedial Design and Remedial
Action: Strategy for Fiscal Year 1990,” February 34, 3990 (OSWER
Directive number 9870.lA.)
5
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OSWER Directive Number 9833.0-la
do not meet the statutory criteria, or where case specific
considerations or not issuing a unilateral order exist.
Statutory criteria are discussed in section III of this uidance;
case specific considerations are discussed in section V.
The site management plan should anticipate possible
noncompliance with the order, and include a course of action that
may be followed. In determining whether to enforce the
unilateral order, Regions should consider the importance of
maintaining section 106 judicial enforcement as a credible threat
to PRPs, as well as the availability of funds for Agency
response.
III. Leaal Requirements of Section 106 Orders for Remedial
Design/Remedial Action
A) Backaround Information about Section 106 Authorities
Two types of administrative orders under section 106 of
CERCLA may be issued. Consent orders may be issued to formalize
removal and RI/FS settlements. Unilateral orders may be issued
to compel a party to undertake conventional removal actions,
RI/FS activities, 11 or RD/RA work where a settlement was not
reached. Consent orders are not within the scope of this
guidance.’ 2 See Appendix A for more detail on when consent
orders under section 106 may be used.
‘°This guidance should not be construed as limiting in any
way EPA’s enforcement discretion to issue *106 orders.
“Agency policy favors use of consent orders for RI/FSS.
See the “Administrative Order on Consent for Remedial
Investigation/ Feasibility Study,” (OSWER Directive number
9835.19).
‘ 2 CERCLA *122(d) (1) (A) requires that Agency agreements
entered into under §122 with respect to remedial action must be
in the form of a consent decree, entered in the appropriate
United States district court. Other vehicles, including orders,
may be used for remedial design. See “Initiation of PRP-financed
Remedial Design in Advance of Consent Decree Entry,” (November
18, 1988) (OSWER Directive number 9835.4—2A).
6
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OSWER Directive Number 9833.0-la
8) Statutory Reauirements of Section 106 Administrative
Orders
CERCL.A section 106(a) provides as follows:
In addition to any other action taken..., when the President
determines that there may be an imminent and substantial
endangerment to the public health or welfare or the
environment because of an actual or threatened release of a
hazardous substance from a facility, he may require the
Attorney General of the United States to secure such relief
as may be necessary to abate such danger or threat....The
President may also, after notice to the affected State,
take other action under this section including, but not
limited to, issuing such orders as may be necessary to
protect public health and welfare and the environment.
Consistent with the statute, administrative orders issued
under section 106 may be issued if a release or threat of a
release of a hazardous substance from a facility may present an
imminent and substantial endangerment to public health, welfare,
or the environment. The order must include findings on the
hazardous substance(s), the nature of the release or threat of a
release, the location of the release (i.e., the location is a
“facility”], the nature of, and basis for the finding of, a
possible imminent and substantial endangerment.
It is important that the link between the release, the
possible endangerment, and the response action to abate the
possible endangerment mandated by the order, be clearly presented
in the order. The findings of fact section should describe the
problem at the site and state that “the actions specified in the
ROD and required by this order will protect the public health,
and welfare, and the environment.”
Finally, before an order may be issued, the affected State
must be notified.’ 3 The 5tatutory requirements of a section 106
order are described in more detail below.
1) Evidence of a Release or Threatened Release of a
- Hazardous Substance
A “hazardous substance” is generally defined in CERCLA
section 101(14) as any substance, waste or pollutant designated
‘ 3 section 106(a) requires notice to the affected State
before issuing an administrative order. See additional
discussion in this section, at 8(4).
7
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OSWER Directive Number 9833.0-la
pursuant to sections 307(a) and 311(b)(2)(A) of the Clean Water
Act, section 11 of the Clean Air Act, or section 102 of CERCLA,
any imminently hazardous chemical substance or mixture with
respect to which the Administrator has taken action pursuant to
section 7 of the Toxic Substances Control Act, or any hazardous
waste having the characteristics identified under or listed
pursuant to section 3001 of the Solid Waste Disposal Act.... 1 ’
See 40 C.F.R. Part 302 for a list of hazardous substances.’ 5
Under CERCLA section 101(22), “release t ’ is defined as any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the environment (including the abandonment or discarding of
barrels, containers, and other closed receptacles containing any
hazardous substance or pollutant or contaminant). 1 ’ The
determination of whether there is an actual or threatened release
depends upon several considerations. An actual release usually
should be observable in some form, whether visually or through
analysis showing the presence of contaminants in samples of soil,
water, or air. The threat of a release, however, involves -
releases that have yet to occur or find their way into the
environment. -surface impoundment that is about to overflow
because of ra is an example of a threatened release.
14 CERCLA §101(14) excludes from the definition of hazardous
substance: “. petroleum, including crude oil or any fraction
thereof which iS not otherwise specially listed or designated as
a hazardous substance under subparagraphs (A) through (F) of this
paragraph, and...natural gas, natural gas liquids, liquified
natural gas, or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas”).
‘ 5 Note that this list is not the exclusive list of hazardous
substances. Some RCRA Echaracteristic] wastes may not be listed
in 40 C.F.R. 302, but would still be hazardous substances if they
meet any of four characteristic criteria under 49 C.F.R. §261.20.
“The statute excludes some activities from the definition
of a release. CERCLA §101(22) excludes from the definition of
release “any release which results in exposure to persons solely
within a workplace, with respect to a claim which such persons
may assert against the employer of such persons...; emissions
from the engine exhaust of a motor vehicle, rolling stock,
aircraft, vessel, or pipeline pumping station engine; release of
source, byproduct, or special nuclear material from a nuclear
incident...”
8
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OSWER Directive Number 9833.0-la
For RD/RA, the release or threat of a release will have been
documented during the RI/FS.’ T This information must be
identified in reasonable detail in the order.
2) Evidence that the Release or Threatened Release is
from a Facility
The release or threat of a release must be from a
“facility.” A facility is broadly defined in CERCLA section
101(9) as:
(A) any building, structure, installation, equipment, pipe
or pipeline (including any pipe into a sewer or publicly
owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor
vehicle, rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located, but
does not include any consumer product in consumer use or any
vessel.
When read together with CERCLA section 101(17) and (18),
this definition includes any on-shore or off—shore sites, not to
exclude land transportation facilities, from which releases or
threats of releases may originate. The administrative order must
specify the physical location of the release. This establishes
that the release was from a facility.
3) Evidence of a Possible Imminent and Substantial
EndanQerment
An endangerment is a threatened or potential harm. An
endangerment is imminent if the conditions that give rise to it
are present, even though the harm might not be realized for
years.’ 8 An endangerment is substantial if there is reasonable
‘ 7 lnformation relevant to the release or threat of release
documented during the RI/FS should be referenced in the order,
and included in the administrative record for selection of the
response action.
18 B. P. Caodrich Co. v. Murtha , 697 F. Supp. 89 (D. Cortn.
1988); United States v, Conservation Chemical Co. , 619 F. Supp.
162 (W.D. Mo. 1985); United States v. Ottati and Goes. Inc. , 630
F. Supp. 1361 (D. N.H. 1985); United States v. Northeastern
Pharmaceutical and Chemical Co . (“NEPACCO”), 579 F. Supp. 823
(W.D. Mo. 1984), aff’d in oart and rev’d in Dart on other
grounds , 810 F.2d 726 (8th Cir. 1986), cart. dan. , 484 U.S. 1008
(1987); United States v. Reilly Tar & Chemical CorD. , 546 F.
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OSWER Directive Number 9833.0-la
cause to believe that someone or something may be exposed to a
risk of harm from a release or threatened release. 19 This
statutory element has been judicially interpreted to require only
a limited showing. The mere threat of harm or potential harm to
public health, public welfare, or the environment is
sufficient. 20 The endangerment need not be immediate to be
imminent.
Courts have held that there may be an imminent and
substantial endangerment when:
o Numerous hazardous substances are present at, and being
released into the environment from a site that is
accessible to humans and wildlife; 21
o A relatively small quantity of hazardous substances
that are toxic at low dosage levels are substantially
likely to enter the groundwater and result in human and
environmental exposure; 22
o Contaminated groundwater flows in the direction of a
subd;ivision using well water; 23
o Numerous hazardous substances have reached private
drinking water wells and have contaminated the
groundwater and surface waters; 2 ’
Supp. 1100 (D. Minn. 1982).
19 Conservation Chemical , at 195—96.
20 Conservation Chemical , at 175, 193—94; Ottati & Goss , at
1394.
21 conssrvation Chemical , at 175, 196—97.
22 NEPACCO , 579 F. Supp. at 846.
United States v. SeYmour Recvcltha Coro. , 618 F. Supp. 1
(S.D. md. 1984).
2 ’United States v. Narda e , 18 Env’t Rep. Cas. (BNA) 1685
(W.D. Okia. 1982).
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OSWER Directive Number 9833.0-la
o Numerous hazardous substances are migrating from a
facility and 25 have contaminated the soil and
groundwater.
The above list is far from exhaustive.
For RD/PA unilateral orders, the endangerment should have
been documented in the baseline risk assessment. This risk
assessment should also be used to support the determination of a
possible imminent and substantial endangerment. 26 No additional
resources should be required to support the finding of a possible
imminent and substantial endangerment.
The possible imminent and substantial endangerment must be
set forth in the order. It is useful to include findings in the
order which describe the potential or actual risk from the
concentration levels detected in the release. However, such
information is not required in the order itself to establish a
possible imminent and substantial endangerment.
4) Notice to Affected States
CERCLA section 106(a) authorizes the Agency to issue such
orders as may be necessary to protect public health and welfare
and the environment, after giving notice to the affected State. 27
The affected State is interpreted to be the State where the
facility is located, and in which the cleanup will be conducted.
Notice is usually given to the Director of the State’s pollution
control agency. For the RD/PA, circumstances generally permit
written notification to the State prior to issuing the unilateral
25 See Ottati and Goss , 630 F. Supp. 1361.
26 See the guidance “Risk Assessment Guidance for Superfund.”
As updated, this guidance presently consists of the following two
volumes: the “Human Health Evaluation Manual,” (October 1989)
(OSWER Directive number 9285.7—Ola), and the “Environmental
Evaluation Manual,” March 1989 (OSWER Directive number 9285.7—02)
[ EPA/540—1 89/00l]. See also the “Interim Final Guidance on
Preparing Superfund Decision Documents” June 1989, (OSWER
Directive number 9355.3-02).
2T CERCL& 1101(27) defines State to include “the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the United
States Virgin Islands, the Commonwealth of the Northern Marianas,
and any other territory or possession over which the United
States has jurisdiction.” It is EPA policy to give Indian tribes
equivalent notification.
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OSWER Directive Number 9833.0-la
order. In the event that verbal notice is given, a telephone
conversation l g should be retained.
C) Judicial Review of Unilateral Orders
CERCLA precludes PRP5 from initiating court proceedings to
challenge a unilateral order upon receipt. Under CERCLIA section
113(h), courts may review section 106 orders only when the Agency
seeks to enforce the order, the Agency seeks penalties for
violation of the order, or the PRPs seek reimbursement from EPA
of response costs incurred after compliance with the order. 28
Therefore, if PRPs refuse to coniply with a unilateral order, the
Agency may use the Fund to clean up the site, without first
defending its actions in court.
Once in a court proceeding where the validity of the order
is properly at issue, section 113(j) (1) of CERCLA provides that
judicial review of any issues concerning the adequacy of any
response action is limited to the administrative record. The
Agency already will have compiled the administrative record for
the selection of the remedy. This record will include
information on the release, the possible endangerment, and the
response action required.
IV. Possible Recipients of Unilateral Orders
CERCLA section 106 does not specify the parties to whom an
order may be issued. Under section 107(a), parties liable under
CERCLA are:
(1) the owner and operator of a vessel or a facility; (2)
any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such
hazardous substances were disposed of; (3) any person who by
contract, agreement, or otherwise arranged for disposal or
treatment of hazardous substances...; and (4) any person who
accepts or accepted any hazardous substances for transport
to disposal or treatment facilities, incineration vessels or
sites selected by such person....
These parties may receive a section 106 order. However,
section 106 does not limit issuance of orders to these PRPs. In
appropriate cases, unilateral orders may be issued .to parties
other than those specified in section 107(a), if actions by such
28 Section 113(h) also allows judicial review in the context
of §107 cost recovery actions, §310 citizen suits, and §106
injunctive action.
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OSWER Directive Number 9833.0-la
parties are necessary to protect the public health, welfare, or
the environment. For example, a unilateral order may be issued
to the owner of land adjoining the site, to obtain site access. 29
A unilateral order also may be issuf 0 d to prevent a non-PRP from
interfering with a response action.
The order generally should specify that each of the PRPs
named as respondents is jointly and severally liable to carry out
all obligations imposed by the order unless there is a clear
divisibility of harm at a site. The Agency typically will not
allocate work required by the unilateral order among the
respondents. For example, an order can require multiple PRPs to
perform all activities required by the order, as well as require
the submission of one consolidated work plan from all
respondents. The order should specify that the failure of one or
more of the respondents to comply with all or any part of the
order shall not in any way excuse or justify noncompliance by any
other respondent. In the limited context of mixed work or carve-
out orders (see section IX of this guidance), it may be
appropriate for certain parts of a response action to be included
in a settlement and other parts of a response action to be
included in an order.
V. Case Specific Considerations
A. Decision Whether to Issue an Order
In addition to the statutory requirements of unilateral
orders described above, additional factors need to be considered.
When the statutory requirements for issuing unilateral orders are
present, unilateral orders should be issued to parties who meet
the following criteria. 3 ’
29 usually, the Agency uses the broad access authority in
§104(e), but has also been successful under §106 as well. See
B.F. Goodrich Co. v. Murtha , 697 F. Supp. 89 (D. Conn. 1988).
(The court upheld EPA’s use of a 106(a) order to obtain site
access, stating that section 106 “is broadly worded to authorize
all relief ‘necessary to abate (the] danger or threat.’ There is
no express restriction on the nature of the relief authorized
except as equity and he public interest may requir .”) 697 F.
Supp. at 94.
30 Note, however, that much of this guidance pertains to PRP5
and may be inapplicable to orders issued to nort—PRPS.
31 Not all of the criteria apply to parallel unilateral
orders, which are described •generally in section IX.
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OSWER Directive Number 9833.0-la
1) Evidence that the Parties are Liable 32
Unilateral orders should be 33 issued based upon adequate
evidence of the PRP’s liability. Evidence sufficient to
support the liability of each PRP named as a respondent needs to
be in EPA’S possession. PRP searches, including section 104(e)
information requests, should establish PR? liability prior to the
RD/PA stage. 3 ’ The PR? search should be supplemented as needed
during the RI/FS. A unilateral order may be amended to include
additional PRPs after further evidence has been developed.
2) PRP5 are Financially Viable
The financial viability of PRPs should be considered before
an order is issued. 35 EPA should have a reasonable belief that
the PRPs collectively have adequate financial resources before
the Agency issues an order that directs them to conduct the
remedial action. Once a decision to issue an order is made, it
may include. PRPs who have modest means or an unclear financial
posture, especially where such PRPS contributed considerable
amounts of hazardous substances to the site. Generally, the
order should not include PRP5 that lack any substantial
resources, unless the activities required of those persons donot
involve expenditures of money (e.g., providing access).
32 unilatera]. orders may also be issued to parties other than
those listed in §107(a). See discussion in section IV.
33 The order should state the facts relating to PR?
liability. The extent of detail necessary may be determined on a
case-by-case basis by the Region. (It should also be noted that
liability of a particular person is not required for the Agency
to issue an order to that person. An example of this is an order
to obtain access. See discussion in Section IV above.)
34 1t is important that the early requests for information
concerning PRPS be developed fully to support liability under
§107 of CERCL&. See the “PR? Search Supplemental Guidance for
Sites in the Superfund Remedial Program,” June 29, 1989 (OSWER
Directive number 9835.7).
See the February 24, 1989 “Guidance on CERCLA Section 106
Judicial Actions,” (OSWER Directive number 9835.7.) for a listing
of sources that may be consulted when determining the financial
capability of PRP5.
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- OSWER Directive Number 9833.0-la
3) The Resvonse Action Is Specifically Identified
Unilateral orders should specifically define the response
action required, to the maximum extent possible. A specifically
identified response action is required for implementation by the
PRPs, for the Agency to determine compliance, and for the order
to be legally enforceable. For RD/RA actions, the order should
reference the ROD and specify a schedule of deliverables. Often,
the order should also include a statement of work.
4) PRPs have Technical Capability and Aaencv Oversight is
Feasible
The technical difficulty of response actions should be
considered before issuing unilateral orders. In certain
circumstances, EPA may conclude that the PRPs are unlikely to
properly perform the RD or RA, even with good oversight. In this
context, it may be appropriate to fund the design. In addition,
in some instances EPA may fund the remedial action.
B) Determining the Identity of the Respondents
In general, present owners and operators and viable past.
owner(s) and operator(s) of the site at the time of disposal
should be named as respondents. At a minimum, the present owners
and operators must provide access. The Agency will also
generally consider naming parties who arranged for disposal or
treatment of hazardous substances. When there are multiple PRPs,
the Agency may consider the aggregate volume (percentage of
total) and aggregate financial viability of all the PRPs to be
named. When evaluating whether to name an individual PRP in an
order, the PRP’s contribution to the site (volume and nature of
substances), and financial viability should be considered. The
Agency should consider naming the largest manageable number of
parties. Relevant evidentiary concerns must also be considered
when deciding which PRP5 to name in an order. In addition,
consideration should be given to whether potential
Where there are multiple PRPs, the fact that they have
formed some type of PRP organization will not affect their
individual liability.
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OSWER Directive Number 98)3.0-la
respondents -will have a 33 valid “sufficient cause” defense 37 or a
section 107(b) defense. Parties who would clearly have a valid
defense to an EPA action following the parties’ failure to
comply should not be named in the unilateral order.
VI. Elements of Unilateral Orders
The following elements should be included in unilateral
orders. The contents of several key provisions are discussed
below. 39
o Introduction and Jurisdiction
o Findings of Fact
o Conclusions of Law and Determinations
o Notice to the State
o Order
o Definitions
o Notice of Intent to Comply
o Parties Bound
o work to Be Performed
o Failure to Attain Performance Standards
o EPA Periodic Review
o Endangerment and Emergency Response
o EPA Review of Submissions
o Progress Reports
o Quality Assurance, Sampling and Data Analysis
o Compliance with Applicable Laws
o Remedial Project Manager
3T More information about the sufficient cause defense will
be discussed in the forthcoming Interim Guidance on Enforcement
of CERCLA Section 106(a) Administrative Orders Through Section
107(c) (3) Treble Damages and Section 106(b) (1) Penalty Actions.
38 CERCLA 107(b) lists several defenses to CERCLA liability
for a PRP who can establish by a preponderance of the evidence
that the release or threat of release of a hazardous substance
was caused solely by (1) an act of God; (2) an act of war; (3) an
act or omission of a third party other than that which occurred
in connection with a contractual relationship, if due care was
exercised and certain precautions against foreseeable acts or
omissions taken; or (4) a combination of these defenses.
39 A §106 model unilateral order for remedial designs and
remedial actions is under development. See the “Model Unilateral
Administrative Order for Remedial Design and Remedial Action,”
(OSWER Directive number 9833.0-la).
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OSWER Directive Number 9833.0-la
o Access to Site Not Owned By Respondent(s)
o Site Access and Data/Document Availability
o Record Preservation
o Delay in Performance
o Assurance of Ability to Complete Work
o Reimbursement of Response Costs (Optional)
o United States Not Liable
o Enforcement and Reservations
o Administrative Record
o Effective Date and Computation of Time
o Opportunity to Confer
o Termination and Satisfaction
The “introduction and jurisdiction” section of the order
should set forth EPA’S authority under CERCLA section 106 to
issue unilateral orders. It should reiterate the delegation of
this authority to the EPA Regional Administrator, and, if the
order is signed by a subordinate, delegation from the RA to that
subordinate.
The “findings of fact” section should identify and describe
the conditions at the site in detail to support the finding of
release or threatened release from a “facility.” It shourd
identify the hazardous substances at the site to the extent
known.
This section should also describe the underlying factual
basis for the conclusion that there may be an imminent and
substantial endangerment because of a release or threatened
release of those substances.’ 0 To support this conclusion, the
findings of fact section should contain a brief summary of data
from the remedial investigation which shows the extent of
contamination at the site and exposure pathways and establishes
the predicate for the response action. The data regarding
contamination at the site and risk assessment should be contained
in the administrative record for the selection of remedy. This
information should be summarized in the ROD. Both of these
documents should be referenced in the order.
The findings of fact section should also state factual
information to support the elements of liability alleged. If a
PRP is to be included in the order under a “successor,” “alter
ego,” or other complex liability theory, the findings of fact
section should explain the factual basis to support those
theories.
‘°The risks should be set forth in the baseline risk
assessment and ROD. A toxicologist should be consulted in regard
to this portion of the order.
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OSWER Directive Ni.unber 9833.0-la
The “conclusions of law and determinations” section of the
order, together with the “notice to the State”, should include
conclusions that meet the statutory requirements for a unilateral
order. The conclusions of law section should additionally
establish that the parties are appropriately subject to section
106 authority, as described in sections III and IV above.
The “notice of intent to comply” 1 section should require
each respondent to provide written notice to EPA, no later than
five days after the effective date of the order, of the
respondent’s unconditional intent to comply with the terms of the
order. The order should also specify that failure to respond by
this deadline will be considered noncompliance, and may trigger
an Agency decision to file a judicial action or start Fund-
financing. The “notice of intent to comply” section should
require the respondent to provide notice of and the basis for any
sufficient cause defense which may be available to a respondent
and which the respondent will pursue to contest liability for
complying with the order. To the extent that the respondent’s
sufficient cause defense is based on an allegation that the
response action ordered was inconsistent with CERCLA or the NCP,
the Agency believes that the respondent may rely only on the
administrative record for the response action. This is because
section 113(j) provides that “in any judicial action under this
Act” the validity of response actions shall be adjudicated “on
the administrative record”. The order should specify that all
information relating to a sufficient cause defense must be
submitted in writing, at the same time that the respondent’s
notice of intent to comply is provided.
The “work to be performed” section should clearly order
respondent to implement the ROD’ 2 (and the RD if completed) 4 and
toward that end, to implement the statement of work (SOW) .‘
This section of the order should describe the content of and
schedule for the work plan, sampling and analysis plan, and site
health and safety plan, and should specifically require the
respondent’s performance to implement these plans following EPA’s
‘ 1 APRP’s notice of intent to comply applies to all of the
requirements of the order, beginning from the effective date and
continuing through all of the deliverables and activities
required by the order.
‘ 2 As modified by an Explanation of Significant Differences
document, or ROD amendment, if applicable.
‘ 3 Where a statement of work is used, it must be attached and
incorporated by reference into the order.
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OSWER Directive Number 9833.0-la
approval or modification. This section of the order should also
specify major deliverables. Listing the major deliverables and
providing a performance schedule in the unilateral order should
help to minimize the submission of late or inadequate products.
Clearly delineating the major deliverables and due dates will
also assist in subsequent enforcement of these provisions of the
order.
The “work to be performed” section should also require the
respondent to provide prior written notification to the receiving
state of any off-site shipments of hazardous substances.”
Regions should schedule delivery of the work plan as soon as
reasonably possible after the order’s effective dates This
promptly initiates the work and serves as an early indication of
a PRP’s actual compliance with the order.
The “delay in performance” section should require the
respondent to provide written notification to EPA in the event of
any delay or anticipated delay in complying with the order. -
The “United States Not Liable” section explains that the
United States, by issuing the order, does not assume any
liability for any injuries or damages to persons or property
resulting from acts or omissions by respondent(s), or its
employees, agents, successors, assigns, contractors or
consultants in carrying out any action or activity pursuant to
the order. In addition, this section should state that neither
EPA nor the United States is to be construed as a party to any
contract entered into by the respondent in carrying out any
action required by the order.
The “enforcement and reservations” section of the order
should reiterate the Agency’s ability to clean up the site with
Fund money, or seek judicial enforcement. The unilateral order
should expressly reserve the Agency’s takeover rights as
including, but not being limited to, the following circumstances:
(1) the PRP5 fail to indicate a willingness to comply with the
unilateral order by the response date; (2) the period for
compliance with any requirement of the order expires without such
compliance; (3) PRPs perform inadequately or submit
unsatisfactory deliverables, or (4) the immediacy of the threat
is such that a Fund-financed response, or a judicial order to
ensure compliance, beáomes necessary. This section should also
“See “Notification of Out—of—State Shipments of Superfurtd
Site Wastes,” (September 14, 1989) (OSWER Directive number
9330.2—07).
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OSWER Directive Number 9833.0-la
preserve EPA’s right to take any additional action, including
modification of the order or issuance of additional orders.
The “administrative record” section of the order should
state that upon EPA’S request, if there are any documents
generated by the respondent which relate to the selection of the
response action, the respondent should submit these documents to
EPA for possible inclusion in the administrative record. 45
Generally, the “effective date and computation of time”
provision of a unilateral order for the RD/RA should provide
that the order is effective on a date that follows the oppor-
tunity for a conference and that all times for performance of
ordered activities shall be calculated from this effective date.
This type of order becomes effective without further action
Where it appears likely that negotiation of a consent decree
can be concluded in a relatively short period of time, it may be
useful to issue a unilateral order with a delayed effective date.
The conference and response date of unilateral orders with -
delayed effective dates typically should precede the effective
date by no more than 20 to 30 days. See section VIII of this
guidance for further explanation of unilateral orders with
delayed effective dates.
The “opportunity to confer” section should explicitly give
PRPs an opportunity to confer with EPA. The scope of the
conference is limited to issues of implementation of the response
actions required by the order, and the extent to which the
respondent intends to comply with the order. The order should
provide a deadline for requesting the conference. PRP5 may be
given ten calendar days from the date the order is mailed to
request a conference. The order should indicate that the
conference may be forfeited if not requested by this date. The
order may specify the date of the conference, if respondents
elect to take advantage of this opportunity. The conference is
discussed in greater detail in section VIII of this guidance.
The conference request date should precede the effective date of
the order and allow time for a conference before the date by
which recipients must indicate their willingness to comply with
the order (response date). The timing of the conference request
date shall not be permitted to extend the effective date or any
of the deadlines required by the order.
‘ 5 1t is possible that information generated during RD/PA
will meet the criteria of §300.825 of the NCP relating to the
addition of documents to the record after the decision document
is signed.
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OSWER Directive Number 9833.0-la
The “termination” section should provide for a clear
termination point of the order. This section should indicate
that respondent shall provide EPA with written certification
that it has completed all of the terms of the order, including
any additional tasks which EPA has determined necessary.
EPA shall provide respondent with a notice that the order is
terminated, based upon EPA’s present information and belief that
respondent has fully complied with the requirements of the order.
EPA’s notice shall be expressly conditioned on the accuracy of
the representations contained in respondent’s certification.
This section is not equivalent to a release or a covenant not to
sue, nor should it be phrased in a manner which could be
interpreted as a release or covenant not to sue and the order
should specifically so state. Further, the order shall provide
that if EPA determines that additional response activities are
necessary to meet applicable Performance Standards, EPA may
notify respondent that additional response actions are necessary.
VII. Modification of Unilateral Orders
The Agency may decide to modify the terms of the unilateral
order for any reason, including information received during the
response action. All such information should be documented in
writing. The unilateral order may only be modified in writing by
the Agency official who signed the order, i.e., the Regional
Administrator or his or her delegate. Agency decisions to
modify the unilateral order should be communicated promptly to
the PRPs. Verbal notification of EPA’S intent to modify the
terms of the order may be appropriate if followed by a mailed
copy of the modified unilateral order to the PRP5. The
verbal modification takes effect upon issuance of the modified
unilateral order to the PRPs.
VIII. Procedures Relating to Issuing Unilateral Orders
A) SDecial Notice Procedures
Section 122(e) of CERCLA gives EPA discretion to utilize the
special notice procedures if EPA determines that a period of
negotiation would facilitate an agreement with PRPS and would
expedite rmedial actions. Special notice procedures give PRP8
an opportunity to negotiate a settlement with the Agency, before
the Agency takes an enforcement action against them or conducts
‘ 6 This does not preclude issuance of an order that
incorporates by reference a document that is subsequently
approved by another EPA official consistent with the order. An
example of this is the Regional Project Manager’s (RPM) approval
of the workplan.
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OSWER Directive Number 9833.0-la
the response action itself. Special notice betters will be
issued prior to almost all orders for RD/RA. Special notice
procedures may affect timing of issuance of unilateral orders.’ 8
The special notice moratorium for remedial action lasts from 60
to 120 days, depending upon whether respondents submit a good
faith settlement offer by the 60th day. If the Agency receives
a good faith offer for the remedial action within the first 60
days of the moratorium, the Agency may not take any action for a
total of 120 days from respondents’ receipt of the special notice
letter. If special notice has been issued, Regional offices
should be prepared to issue unilateral orders at the conclusion
of the special notice moratorium, consistent with the following
principles.
The Agency may issue unilateral orders immediately upon
expiration of the special notice moratorium. Therefore, if a
good faith settlement offer is not received by the 60th day, the
Agency normally should issue a unilateral order shortly
thereafter, if such an order is appropriate.
Because of the statutory moratorium, different rules apply
if PRPs submit a good faith settlement offer within 60 days of
the special notice. In that case, unilateral orders may not be
‘ 7 me “Interim Guidance on Notice Letters, Negotiations, and
Information Exchange,” 53 Fed. Reg. 5298 (February 23, 1988)
(OSWER Directive number 9834.10) provides the following examples
of circumstances where it would generally not be appropriate to
issue special notice letters: 1) where past dealings with the
PRPs strongly indicate that they are unlikely to negotiate a
settlement; 2) where EPA believes the PRPs have not been
negotiating in good faith; 3) where no PRPs have been identified
at the conclusion of the PRP search; 4) where PRP5 lack the
resources to conduct response activities; 5) where there are
ongoing negotiations; or 6) where notice letters ware already
sent prior to the reauthorization of CERCLA and ongoing
negotiations would not benefit by issuance of a special notice.
For information on special notice letters and municipalities, see
the “Interim Policy on CERCLA Settlements Involving
Municipalities and Municipal Wastes,” (OSWER Directive number
9834.13).
a special notice letter is not issued, the statutory
moratorium is not triggered, and the Agency can issue a §106
unilateral order immediately.
‘ 9 See the “Interim Guidance on Notice Letters, Negotiations,
and Information Exchange,” 53 Fed. Rag. 5298 at 5307 (1988)
(OSWER Directive number 9834.10).
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OSWER Directive Number 9833.0-la
issued for a total o 120 days from issuance of the special
notice letter. 50
Where there has been a good faith offer, but settlement is
not reached as of the 120th day after issuance of the special
notice letter, the Agency should be prepared to issue unilateral
orders. Only if settlement is likely in the very near future may
unilateral orders be delayed. 51 Unilateral orders with delayed
effective dates may be issued,f or example, at the onset of a
negotiations extension. They should become effective on the
expiration date of the extended negotiations.
Unilateral orders with delayed effective dates should be
viewed as encouraging the successful conclusion of negotiations.
However, unilateral orders with delayed effective dates are not
to be considered “draft” orders, and their terms are not
negotiable. These orders indicate the Agency’s commitment to the
response action, and the desire to secure its timely
implementation. When used in this manner, unilateral orders with
delayed effective dates serve as a form of deadline management.
B) The Conference
It is the Agency’s policy to provide PRPs with an
opportunity to discuss with the Regional office issuing the
“rder, implementation of the response actions required by the
rder, nd the extent to which the respondent intends to
mply. EPA will not participate in the conference for the
50 Unilateral orders may not be issued during the moratorium.
This includes the issuance during the moratorium of unilateral
orders with delayed effective dates, even if they become
effective after the moratorium. An additional three days for
transmission of the mail may be allowed in addition to the 120
day period.
5t See procedures described in the Interim Guidance entitled
“Streamlining the CERCLA Settlement Decision Process,” dated -
February 12, 1987 (OSWER Directive number 9835.4).
52 Apart from implementation, the two major concerns that the
PRPs may have relate to their liability and to EPA’S se),ection of
the response action. During the course of information exchange
and PRP notice (see “Interim Guidance on Notice Letters,
Negotiations, and Information Exchange,” 53 Fed. Rag. 5298 (1988)
(OSWER Directive number 9834.10), PRPs generally will have had an
opportunity to assert that they are not liable. EPA also
provides PRP5 opportunities to participate in the selection of
the remedial action. PRPs are provided with an opportunity to
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OSWER Directive Number 9833.0—la
purpose of resuming settlement negotiations or negotiating the
terms of the order. The conference is notan’-evidentiary
hearing. The opportunity to confer does not give PRPs the right
of pre—enforcement review. 53 The conference is not intended to
be a forum for discussing liability issues or whether the order
should have been issued. Instead, the conference is designed to
ensure that the order is based on complete and accurate
information, and to facilitate understanding- of implementation.
The Agency will not create an official stenographic record
of the conference, although a written summary may be prepared.
Following the conference, a written summary of significant issues
raised may be prepared and signed by the Agency employee who
conducted the conference. Significant issues raised concerning
implementation should promptly be brought to the attention of the
official who signed the order.
Respondents may appear in person or by an attorney or other
representative. PRPs will have the opportunity to ask questions
and present their views through legal counsel-or technical
advisor. 5 ’ -
Within five days of the conference, the respondent may
submit a written summary of any arguments it.presented at the
conference. At this time, in addition to this summary, the
respondent may submit any written argument or evidence of a
sufficient cause defense or any issues relating to factual
determinations set forth in the order. -
The conference normally will be held at the EPA Regional
office. The RPM, the regional counsel attorney, and any other
comment and provide information concerning the remedial action
plan, an opportunity for a public meeting, and a response to each
of their significant comments, criticisas,and new data submitted
(See CERCLA §8 113(k), 117.) Since EPA already will have
considered these concerns, the conference shall not be a forum
for reassertion of the PRP’s views on these issues.
53 The timing of judicial review of §lO6ça) orders is
governed by *113(h) of CERCLA. Also, PRPB may obtain judicial
review after they have fully complied with, the unilateral order
through a reimbursement petition filed under §106(b) of CERCL&,
wherein PRP5 may contest issues of liability or the selection of
remedy.
54 Attendance at the conference should be limited to EPA and
the respondent, and the respondent’ s attorney- and/or technical
advisor.
24
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OSWER Directive Number 9833.0-la
appropriate Regjonal officials, should attend. The conference
schedule and agenda will be at the discretion of the EPA employee
leading the conference consistent with this guidance. It is in
the Region’s discretion who presides at the conference. The
supervisor of the RPM assigned to the site would be an
appropriate person. The assigned regional counsel attorney
should not conduct the conference although he or she may attend.
In addition, the attorney should not prepare a summary, due to
the possibility that this may put the attorney in the position of
being a witness in subsequent litigation.
IX. Scecialized Forms and Use of Unilateral Orders
Specialized forms of unilateral orders may serve as a
settlement incentive for cooperative PRPs, and may also serve as
a disincentive for non-settlors. There are different forms of
unilateral orders which may serve as settlement inducers.
‘Generally, in drafting unilateral orders, the order should direct
the PRPs to conduct the entire remedial action. In limited
instances, however, the Agency may settle with some PRPs and
issue “carve-out” unilateral orders to recalcitrant parties to -
compel them to conduct a discrete portion of the work at the
site. The Agency also may issue “parallel” unilateral orders to
recalcitrants ordering them to coordinate and cooperate with the
settlors in conducting the response action. Carve-out and
parallel orders are explained in more detail below.
During settlement negotiations, the Agency may set aside a
portion of the cleanup for non-settlors, and may verbally
indicate its present intent to issue unilateral orders for that
portion of the work to all PRPS who do not sign the settlement
agreement. This is referred to as a “carve out” settlement.
Work that may appropriately be carved out includes portions of
operable units that constitute independent tasks. To prevent any
possibility of delaying the remainder of the response action,
only independent, discrete tasks should be the subject of a
carve-out order. Otherwise, the entire process may hinge upon
the non-settlors timely compliance with the carve—out order.
Separate tasks that may be carved out may include removals of
contaminated soil in separate areas, or removal of specified
tanks or drums.
A “carve-out settlement is a form of mixed work. For
information on the types of mixed funding arrangements such as
mixed vork which may be used as incentives to settlement, see
“Superfund Program; Mixed Funding Settlements,” (OSWER Directive
number 9834.9) 53 Fed. Reg. 8279 (March 14, 1988).
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OSWER Directive Number 9833.0-la
Due to the uncertainties of when and how the work allocated
to non-settlers will be completed and of how many PRPs will
choose to settle, before a carve-out order to non-settlors is
proposed during settlement negotiations, the Regions should
consider the possibility of having to pursue the non—settlers or
fund the work. 56 In appropriate cases, the settlement agreement
should provide for a delayed schedule for the settlers to perform
the carved-out work. By use of a delayed schedule, the Agency
may later seek the work from the settlers, if the non-settlors do
not comply with the carve-out order. Second, the Region should
consider the possibility of undersubscription or oversubscription
to the settlement. If there is oversubscription to the
settlement, there might be too few PRPs to which the carve—out
order could be issued.
Unilateral orders may also serve as a settlement incentive
when the Agency has reached a complete settlement at the site
with fewer than al]. PRPs. When a complete settlement agreement
is reached for conduct of the remedial action with fewer than all
PRPs, the Agency may agree to issue “parallel” unilateral orders
to the liable non—settlors. Parallel unilateral orders direct
the non-settlors to coordinate and cooperate with the settlors’
cleanup activities, as described in the consent decree. 57 The
requirements of a parallel unilateral order match the response
action requirements set forth in the consent decree settlement.
Where the response action is properly conducted by the settlers,
nonsettling recipients of parallel unilateral orders may be
liable for daily civil penalties if they failed to contribute to
the settlors’ efforts by, for example, payment of money or “in-
kind” contribution. Parallel unilateral orders benefit the
settlors because non-settlors may contribute to the PRP cleanup
revenues upon receipt of the unilateral order. Alternatively, if
recipients of unilateral orders fail to financially, or
56 Factors to consider when deciding whether to propose a
mixed work settlement include the strength of the liability case
against settlers and any non-settlers. This includes litigative
risks in proceeding to trial against settlors, and the nature of
the case r. aininq against non-settlers after the settlement.
Mixed work settlements should be avoided where there is a
significant potential for delays in cleanup due to inadequate
coordination or potential conflicts. See the Mixed Funding
Settlements guidance cited above.
57 Regions must consider the implications of the possibility
of non-compliance with such an order.
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- OSWER Directive Number 9833.0-la
otherwise, assjit the settlors, unilateral orders may assist
settlors to bring contribution actions against the non—settlors.
X. Continued Negotiation after Issuance of An Order
Upon receipt of a unilateral order, PRPs may indicate a
preference for conducting the response action under a consent
decree. This will generally only be considered when it is
possible that thee agreement will be reduced to a decree promptly.
Except where quick agreement on a consent decree is likely,
iegotiations normally should not be resumed since the PRP5
presumably were given a full opportunity to settle with the
Agency prior to receipt of the unilateral order. Alternatively,
during negotiations, PRPs may indicate that they will not sign a
consent decree, but may comply with a unilateral administrative
order. In this situation, the Region can decide whether it is
appropriate to issue a unilateral order.
The Agency may benefit from PRP conduct of a response action
under a unilateral order. Such benefits may include early -
initiation of the response action through the absence o
prolonged negotiations and an expedited review process. a While
certain other benefits may accrue to the Agency under a c nseńt
decree rather than a unilateral order, in the interest of early
initiation of the response action, the Agency may choose to
require PRP conduct of a res onse action under a unilateral order
in lieu of a consent decree.
XI. NoncoiTt liance with Unilateral Orders
In the event that PRPs do not submit their notice of intent
to comply letter by the date required, or do not adequately
comply with a unilateral order, the Agency must decide whether to
immediately seek judicial enforcement of the order, or to assume
the lead on the project and conduct the RD and/or the PA with
Fund money. Agency funding of the project may be followed by a
judicial referral, at a minimum, for cost recovery, penalties
and damages. Regional offices have discretion to choose either
funding or litigation, based upon: the availability of funds
Ľdaini.trative orders do not require judicial approval or
public cosnt. These procedures apply to consent decrees
entered under *122. See §122(d) (2).
“Under a unilateral order, PRP5 will be subject to §106(b)
daily penalties instead of stipulated penalties, and they are
ineligible for contribution protection or covenants not to sue.
Past costs typically will be recovered by EPA through a demand
letter and/or a §107 cost recovery lawsuit.
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OSWER Directive Number 9833.0-la
including State—cost share funds for the RA; the urgency
presented by the site; the amount of available enforcement
resources; and the degree to which the case fits the criteria for
judicial enforcement. Regions also should consider the need for
EPA to maintain a credible section 106 enforcement presence in
the S ..perfund program. See the “Guidance on CERCLA Section 106
Judicial Actions,” for a discussion of the appropriate criteria
for a judicial referral.
The primary focus in referring a case to DOJ is generally
the Agency’s prospect for successful litigation and the need to
ensure remedial action at a site. Once the Government decides to
bring a section 106 action against the PRPs, it will pursue the
largest manageable number of potentially liable parties, based on
considerations such as the volume and nature of their
contribution, their relationship to the site (such as owners and
operators), their financial viability, and their recalcitrance in
the settlement process. In selecting defendants, the Agency
should consider whether, based on information obtained after
issuance of the unilateral order, any of the respondents have a
“sufficient cause” defense or a section 107(b) defense. -
XII. Note on Pur ose and Use of this Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of the U.S. Environmental Protection Agency.
They do .not constitute rulemaking by the Agency, and may not be
relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity by any person. The
Agency may take any action which is at variance with the policies
or procedures contained in this memorandum, or which is not in
compliance with internal office procedures that may be adopted
pursuant to these materials.
If you have any questions concerning any material contained
herein, please call Deborah J. Hartman (FTS)/(202) 382—2034 of
the Office of Waste Programs Enforcement. The contact at the
Office of Enforcement and Compliance Monitoring is Patricia L.
Winfrey at (FTS)/(202) 382—2860.
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OSWER Directive Number 9833.0-la
APPENDIX A
ADMINISTRATIVE AND JUDICIAL SETTLEMENT AND UNILATERAL
ENFORCEMENT AUTHORITIES
I. Administrative Settlement and Unilateral Enforcement
A. Sections 3.22 and 106 Consent Administrative Orders
Prior to SARA, the Agency based its consent administrative
orders for both removals and the RI/FS on section 106 of CERCLA.
The RI/FS settlement agreement is now typically based upon CERCLA
sections 104 and 122. In these cases, a finding of imminent and
substantial endangerment is no longer required for RX/FS
agreements. BA settlements under section 122 are embodied in
consent decrees. 60 Unilateral orders for conventional removals
continue to be issued pursuant to section 106.
Penalties available for non—compliance with consent
administrative orders include stipulated penalties, section 109.
monetary penalties, and section 106(b) daily civil penalties and
possibly treble damages where the Fund takes over.
B. Section 106 Unilateral Administrative Orders
Section 106 unilateral administrative orders may be used to
compel PRPs to conduct removals, RI/FS5 61 , remedial designs or
remedial actions. If unilateral orders have the desired effect
PRP5 will comply with the terms of the orders, or they may decide
to settle with the Agency. If they agree to settle on favorable
terms, the unilateral order may be followed by a consent
administrative order for removals and RI/FS5, or a consent decree
for RD/BA.
If PRPs do not comply with the unilateral order “without
sufficient cause,” daily civil penalties may be imposed by a
court under section l06(b)(l). Under section 107(c) (3), punitive
damages also are available for noncompliance without sufficient
cause with a section 106 administrative order in an amount up to
three times that incurred by the Fund to perform the response
work required by the order.
‘°See section 11(A), below.
“Note that if a §2.06 unilateral order is used to compel
PRP5 to conduct an RuTS, a finding of a possible imminent and
substantial endangerment must be made before the preparation of
the baseline risk assessment. However, unilateral orders are
generally not recommended for ordering conduct of an RuTS.
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OSWER Directive Number 9833.0-la
Courts have jurisdiction to review section 106(a)
administrative orders only in the following instances: (1) an
action is brought under section 107 to recover response costs or
damages or for contribution: (2) a judicial action is brought to
obtain injunctive relief under section 106; (3) penalties are
sought for noncompliance with the administrative order; (4) PRPs
petition for reimbursement under section 106(b) (2) after
compliance with the order; (5) or a citizen suit is brought
pursuant to section 310. see CERCLA section 113(h).
II. Judicial Settlement and Unilateral Enforcement
A. Consent Decrees
- The remedial action component of the RD/RA, if settlement is
reached under section 122, is required to be implemented in a
consent decree under section l22(d)(l)(A). A removal, RI/FS
under section 122(d) (3), or remedial design settlement agreement
may be embodied in either a consent administrative order or a -
consent decree. Consent administrative orders are typically used
for removals and RI/FS agreements because they do not involve the
judicial process and often may be obtained more quickly tItan
consent decrees. Consent decrees, on the other hand, are
judicial documents that must be submitted to a court by the
Department of Justice (DOJ) and approved by the court.
Penalties available for noncompliance include stipulated
penalties, section 109 statutory penalties, section 106(b) daily
civil penalties, and treble damages where the PRP’s noncompliance
with an administrative order leads to Fund-financed action.
B. Section 106 Judicial Actions
If PRP5 refuse to comply with a section 106 unilateral order
directing them to conduct a removal or a remedial act vity, the
case may be referred to DOJ for judicial enforcement.
Referrals to DOJ are necessary whether penalties and/or
compliance with the terms of the order are sought
In a section 106 judicial action, the Government may seek to
collect daily civil penalties from any person who, without
sufficient cause, willfully violates, or fails or refuses to
comply with a section 106 unilateral order. In ad ition, in a
section 107 cost recovery action, the Government may seek treble
damages from PRPs for their failure to comply with an
administrative order. However, there is one procedural
62 Some orders are enforceable by administrative penalty.
See section 109(a)(l)(D), (E), (b)(4)(5), and section 122(1).
A-2
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OSWER Directive Number 9833.0—la
difference between securing PRP conduct of the response action
and obtaining monetary penalties from the PRPs. Administrative
orders are a necessary precondition for obtaining the desired
relief when monetary penalties are sought. PRPs must have failed
•to comply with administrative orders before monetary penalties
may be obtained. Daily civil penalties or treble damages may
then be secured through a judicial action.
On the other hand, unilateral orders are not the only
alternative if PRP conduct of the response action is desired. If
settlement negotiations break down over the removal or remedial
action, and the Agency wishes to compel PRP cleanup, the case may
also be referred directly to DOJ. As previously mentioned, PRP
cleanup can be compelled through a section 106 judicial action.
Unilateral orders are therefore an option if the Agency wishes to
compel PRP conduct of the response action.
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GUIDANCE FOR USE OF SECTION 303 OF THE CLEAN AIR ACT
(TO BE ENSERTED AFTER FThRL CONCURRENCE)
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l,, (’. /0
UNITED STATES
TIRONMENTAL PROTECTION AGENCY
REGION 6
DALLAS, TEXAS
IN THE MATTER OF
CHIEF SUPPLY ) ADMINISTRATIVE ORDER
CORPORATION, INC.
ROUTE 2 BOX 71
HASKELL, OK 74436 ) U.S. EPA DOCKET NO
VI-7003-97-04
EPA ID NO. 0KD089761290
Proceeding Under § 7003
of the Resource Conservation
RESPONDENT ) and Recovery Act, as Amended,
42 U.S.C. § 6973
I. JURISDICTION
This Administrative Order (“Order”) is issued to protect
public health and the environment pursuant to Section 7003 of the
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act (“RCRA”), and further amended by the Hazardous
and Solid Waste Amendments of 1984 (“HSWA”), 42 U.S.C. § 6973.
Section 7003(a) of RCRA authorizes the Administrator of the U.S.
Environmental Protection Agency (“EPA”) to issue this Order
whenever the Administrator receives evidence that the past or
present handling, storage, treatment, transportation, or disposal
of any solid waste or hazardous waste may present an imminent and
substantial endangerment to health or the environment. The
authority to issue this Order has been delegated by the
Administrator of EPA to the Regional Administrator, EPA Region 6,
by EPA Delegation Nos. 8-22-A and 8-22-C, dated May 11, 1994, and
No. 8-23, dated March 6, 1986, and further delegated to the
Director of the Compliance Assurance and Enforcement Division,
Region 6 (“Director”) by Delegations No. R6-8-22-A, dated July
27, 1995, and No. R6-8-23, dated July 27, 1995.
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This Order is issuedto Chief Supply Corporation, Inc.,
herein known as “Respondent”, operator of the Chief Supply
Corporation facility located on Highway 64, approximately six
miles north of Haskell, Oklahoma. The property on which the
Chief Supply Corporation facility is located, and all contiguous
property under the ownership or control of Respondent is
hereinafter referred to as the “Facility”.
II. PARTIES BOUND
1. This Order is issued to Chief Supply Corporation, Inc., the
Respondent, Route 2, Box 71, Haskell, Oklahoma, 74436.
2. This Order shall apply to, and be binding upon, Respondent,
his officers, directors, employees, agents, trustees,
receivers, successors, assigns, and all other persons,
including, but not limited to, firms, corporations,
subsidiaries, contractors and consultants, acting under or
on behalf of Respondent in connection with the
implementation of thi& Order.
3. No change in the ownership of the Facility, or the corporate
or partnership status of Respondent, will in any way alter,
diminish, or otherwise affect the obligations of Respondent
under this Order. Respondent shall be responsible for and
liable for completing all of the activities required
pursuant to this Order, regardless of whether said
activities are to be performed by employees, agents,
contractors or consultants of Respondent. Respondent shall
be liable for its failuLe, or the failure of its employees,
agents, contractors or consultants, to completely perform
any or all of said activities, or to satisfy each of the
terms and conditions herein.
4. Respondent shall provide a copy of this Order to all
contractors, subcontractors, laboratories, and consultants
retained to conduct or monitor any portion of the work to be
performed pursuant to this Order. Said copy of the Order
shall be provided within seven (7) days of the Effective
Date of this Order, or the date that such services are
retained. Respondent shall condition all contracts made
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with contractors, subcontractors, laboratories and/or
consultants, in connection with this Order, on compliance
with the terms of this Order.
5. In the event of any change in ownership, control, and/or
operation of the Facility from Respondent to another party
during the pendency of this Order, Respondent shall notify
EPA in writing, no later than thirty (30) calendar days
prior to such change, of the nature and effective date of
such change. Any documents transferring ownership, control,
and/or operations of the Facility from Respondent to another
party during the pendency of this Order shall include
written notice of this Order. Further, Respondent shall
provide a copy of this Order to any successor(s) prior to
such change during the pendency of the Order.
III. NOTICE TO THE STATE
Notice of issuance of this Order was given in writing to the
State of Oklahoma Department of Environmental Quality (“ODEQ”)
pursuant to Section 7003(a) of RCRA, 42 U.S.C. § 6973(a).
IV. FINDINGS OF FACT
1. Respondent is a subsidiary of Clean America Corporation, a
Delaware Corporation. Respondent is doing business in the
State of Oklahoma, and is a °person” as defined in
§ 1004(15) of RCRA, 42 U.S.C. § 6903(15).
2. Respondent operates a hazardous and industrial waste
collection, storage, hazardous waste fuel blending, and
recycling facility located on Highway 64 approximately six
miles north of Haskell, Oklahoma. The Facility’s fuel
blending operation includes mixing hazardous wastes in two
fuel disperEion units to create fuel for off-site industr4.al
furnaces. Other equipment operated at the Facility include
a waste shredder to reduce the size of solids prior to
compositing for further processing or shipment off-site, a
thermal desorption unit to reduce the volume and improve the
fuel value of solids and sludges, and storage tanks. The
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Facility’ s geographic coordinates are latitude 35°52 1301?
north and longitude 95°45 ’00” west.
3. Respondent engages in the generation, treatment, storage
and/or disposal of solid and/or hazardous waste at the
Facility as these terms are defined in Section 1004(5) and
(27) of RCRA, 42 U.S.C. § 6903(5) and (27).
4. The Facility’s permit to operate a hazardous waste
management facility was modified by ODEQ on
April 3, 1994. According to the permit modification, the
Facility operates a hazardous waste storage, recycling, and
treatment facility. The following hazardous wastes are
permitted at the Facility:
DOOl; D002; D004-D016; D018-D043; FOOl-FOOG; FOlO;
F0l9; F024; F025; F034; F035; F037-F039; KOOl-KOll;
K013-K026; K028-K030; K047-K052; K060-K062; K064-K066;
K071; K073; K083-K087; K093-K106; K111-K118; K123;
K124; K].26; K132; K141-K] .45; K147; K148; K056-K059;
P001-P018; P020-P024; P026-P031; P033; P034; P036-P051;
P054; P056-P060; P062-P078; P081; P082; P084; P085;
P088; P089; P092-P099; P101-P106; Pl08-P116; Pll8-P].23;
U001-U012; U014-U039; tJO4l-U053; U055-U064; U066-U095;
U097-U099; U101-U].03; U105-U134; U136-U138; U140-U174;
U176-U194; U196; U].97; U200-U21].; U213-U223; U225-U228;
U234-U240; U243; U244; U246-U249; U328; U353; and U359.
5. On March 26, 1997, an explosion and fire occurred at the
Facility. The fire resulted in the death of one of
Respondent’s employees, and injuries to two other employees.
The handling, storage, treatment, or transportation of solid
waste or hazardous waste at the Facility may have created an
imminent and substantial endangerment to health or the
environment.
6. According to the EPA memorandum titled “POLREP No. 1
Emergency Response”, dated March 27, 1997, from Kenneth
Clark, EPA On-Scene-Coordinator, (“POLREP Report”), the fire
burned a large portion of one building that housed a
majority of the hazardous waste at the Facility and impacted
a portion of the equipment used by the Facility to store and
process hazardous waste. Open flames and associated smoke
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plume rose from 1000feet to 3000 feet above the Facility
- an Idriftčd to the north-northeast. Many of the 1450 drums
of ha ardous waste in storage at the time of the fire were
consumed by the fire.
7. The cause of the explosion and fire of March 26, 1997, has
not been determined.
8. An ODEQ memorandum titled ‘ Combustion Products of Air Toxics
from Chief Chemical Supply”, dated April 22, 1997, from
Evelina C. Morales to Don Maisch, listed 39 chemicals that
were present at the Facility prior to the fire on
March 26, 1997. The memorandum also listed the combustion
products of these chemicals. The following chemicals were
included:
r 4ICAL
COI USTION PRODUCTS
acid, irritating fumes
Hydrogen cyanide, Nitrous oxides
toxic fumes
Dioxins
Carbon monoxides
tetrachioride
Phosgene, Hydrogen chloride
Phosgene, Hydrogen chloride
Phosgene, Hydrogen chloride
toxic fumes
acid, irritating fumes
phthalate
Carbon dioxide, Carbon monoxide
Phosgene, Hydrogen chloride,
Hydrofluoric acid, Carbonyl fluoride
acrid smoke, irritating fumes
phthalate
irritating vapor
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CHEMICAL
C9MBUSTION PRODUCTS
phenol
toxic, irritating fumes
Nitrous oxides
toxic vapors
acrid, irritating smoke
acrid, irritating smoke
Carbon monoxide, Carbon dioxide
acrid smoke & fumes
toxic fumes of Mercury
Formaldehyde, Formic acid
chloride
Phosgene, Hydrochloric acid
toxic fumes of MIBK
acrid smoke, irritating fumes
Nitrous oxides, Carbon oxides,
aromatic vapors
toxic, irritating vapors of Phenol
Hydrogen cyanide, Nitrous oxides
acrid smoke, irritating fumes
Phosgene, Chlorine, Hydrochloric acid
Dioxins, irritant, toxic gasses
acrid smoke, irritating fumes
e
Phosgene, Hydrochloric acid, Chlorines
toxic Chlorides
ne
Phosgene, Hydrochloric acid,
Hydrofluoric acid, Carbonyl fluoride
2,
2-
Phosgene, Hydrochloric acid,
Hydrofluoric acid, Carbonyl fluoride
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I CHEMICAL I COMBUSTION PRODUCTS
1,1,2-Trichioroethane Phosgene, Hydrochloric acid
Xylene
acrid smoke, irritating fumes
9. According to the POLREP Report, all persons in an area
extending 1 1/2 miles to the north and one mile to the east
of the Facility were evacuated as a result of the fire.
10. According to the “Affidavit of John Smith”, dated
April 24, 1997 (“Smith Affidavit”), seepage of unknown
character and origin has been observed coming from the
concrete wall in the containment and recycling building.
John Smith is an inspector for the Waste Management Division
of ODEQ, and for the last three years has been assigned as
t e on-site inspector for the Facility.
11. According to the Smith Affidavit referred to in Paragraph 10
above, the fire has so altered the Facility that the
Facility no longer corresponds to the Hazardous Waste
Permit.
12. Combining incompatible wastes may result in a chemical
reaction which may cause a fire, explosion, or uncontrolled
release of smoke or fumes. According John Smith, referred
to in Paragraph 10, who observed the cleanup and remediation
efforts after the fire and explosion, Respondent’s personnel
responsible for implementing the compatibility screening
procedures appeared uninformed or untrained to perform those
duties.
13. According to the Smith Affidavit referred to in Paragraph 10
above, on March 29, 1997, three days after the fire, a drum
of acid was overturned while moving debris to extinguish
remaining hot spots. Chemicals from the drum mixed with
waste water from the firefighting effort and created a
reaction resulting in the release of a large acid plume.
The plume migrated offsite to the northwest and crossed
Highway 64. The plume dissipated in approximately ten
minutes.
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14. According;.to the Smi1 h Affidavit referred to in Paragraph 10
above, on April 8, 1997;:a drum of solidified material was
placed in a roll-off container during the cleanup following
the firč. The contents of the drum began smoking and the
odor of ammonia was immediately apparent. Facility
personnel then poured water on the waste, which caused the
release of a large white plume and the reaction became more
intense. The waste was then covered with soil.
15. According a Consent Agreement and Final Order (“CAFO”)
entered into by ODEQ and Respondent, filed August 23, 1993,
ODEQ alleged the following violations: storing amounts of
hazardous waste in excess of permitted amounts, treating
hazardous waste when the type and manner of treatment of
hazardous waste was not specified by Chief’s existing
permit. The hazardous wastes being treated included
corrosive hazardous waste (D002), ignitible hazardous waste
(DOOl), and other characteristic hazardous wastes (D006,
D007, D035, D039, and tJ].85)
16. According a Consent Agreement and Final Order (“CAFO”)
entered into by ODEQ and Respondent, filed January 30, 1995,
ODEQ alleged the following violations: storage of
incompatible wastes or products in close proximity without
sufficient separation or barrier between the incompatible
materials, storage of hazardous waste in containers with
which the wastes were incompatible; storing excessive
amounts of hazardous waste, storage of hazardous waste in
leaking drums and in containers unsuitable for use, storage
of hazardous waste in tanks lacking an integrity assessment
and secondary containment, in addition to other violations.
17. Under the terms of the January 30, 1995 CAFO, the Facility
was required to, inter alia, reduce excessive storage of
hazardous waste at the Facility, submit complete
applications for the required air quality permit, and make
the required payments for fees and penalties.
18. ODEQ filed a Notice of Partial Summary Suspension to
partially suspend the Facility’s Hazardous Waste Permit
(Number 3573015) on June 19, 1995. This action was taken
because hazardous waste in storage at the Facility,
approximately 621,000 gallons, significantly exceeded the
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permitted capacity of 131,380 gallons. The permit was
suspended, thus prohibiting the receipt of off-site
hazardous waste until Respondent reduced the level of stored
hazardous waste to those specified in the CAFO.
19. The Facility brought an action (CS-95-414) in the District
Court of Wagoner County, State of Oklahoma, to appeal the
summary suspension of its Hazardous Waste Permit by ODEQ,
and other matters. An Order issued by the Oklahoma District
Court on September 8, 1995, reinstated the Facility’s permit
on the condition that Respondent reduce the amount of stored
hazardous waste to below the permitted level in accordance
to a schedule set in the order. Other elements of the
original cause of action are still pending.
20. According to a Compliance Evaluation Inspection ( “CEI”)
Notice of Violation, dated January 5, 1996, from ODEQ to
Respondent, a RCRA CEI conducted in September 1995, noted
violations including: Facility failed to maintain
compatibility of hazardous wastes in storage; Facility
failed to transfer wastes from leaking containers to
containers in good condition; Facility conducted transfer
activities in unpermitted areas; and Facility failed to
maintain the storage of containers holding ignitable wastes
at least 50 feet from the property line.
21. The chemicals present at the Facility, and their combustion
products, are toxic, corrosive, and include known and
suspected carcinogens and mutagens, which can affect the
central nervous system and damage internal organs at low
levels. These constituents, under certain conditions of
dose, duration, or extent of exposure, if mismanaged,
constitute a threat to human health by inhalation and/or
absorption. The following information was compiled from
“Chemical, Physical, and Biological Properties of Compounds
Present at Hazardous Waste Sites”, prepared by Clement
Associates, Inc., dated September 27, 1985, EPA’s Integrated
Risk Information System (IRIS), Clinical Toxicology of
Commercial Products, Fifth Edition, and 40 C.F.R. Part 141:
(a) Phosgene: Phosgene is a combustion product of several
of the chemicals that were permitted at the Facility.
Phosgene is a colorless, highly toxic gas, and was once
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used as a war gas. It has an odor similar to moldy hay
at a low concentrations in air. It is an extreme
pulmonary irritant, but initial symptoms are mild and
transient, even when fatal concentrations are inhaled.
Phosgene may cause pulmonary edema, may be quickly
fatal, or may cause pneumonia. Inhalation of high
concentrations causes choking, a constricted feeling in
the chest, coughing, painful breathing, and bloody
sputum. Phosgene vapors are also strongly irritation
to the eyes, and may cause skin burns. According to
the National Institute for Occupational Safety and
Health (NIOSH) Pocket Guide to Chemical Hazards, dated
September 1985, Phosgene is immediately dangerous to
life and health at 2 ppm.
(b) Benzene: Benzene exposure is associated with
chromosomal damage in both humans and animals, although
it is not mutagenic in microorganisms. It is fetotoxic
and lethal to embryos in experimental animals.
Exposure to benzene has resulted in leukemia in humans.
It also adversely affects the hematopoietic system and
may harm the immune system. Very high concentrations
in air (about 20,000 ppm) can cause death in minutes,
with central nervous system depression and convulsions,
and cardiovascular collapse. Vertigo, headache,
nausea, drowsiness, and eventual unconsciousness result
from milder exposures. Dermal adsorption of liquid
benzene can result Ln erythema, blistering, and scaly
dermatitis. It may cause irritation and damage to the
eyes. The maximum contaminant level (MCL) for benzene
in drinking water is 0.005 mg/l. IRIS lists benzene as
a Group A Known human) carcinogen.
Cc) Xylene: Xylene has been shown to be feto-toxic in rats
and mice. In humans, exposure to high concentrations
of Xylene adversely affects the central nervous system
and irritates the mucous membranes. Short term
exposure to high levels causes skin, eye, nose, and
throat irritation. The MCL for total Xylenes in
drinking water is 10.0 mg/l. IRIS lists Xylene as a
Group D (not classifiable as to human carcinogenicity)
carcinogen.
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(d) Naphthalene: Naphthalene has retarded cranial
ossification and heart development in the offspring of
exposed pregnant rats. Inhalation exposure has caused
nausea, headache, and optic and kidney damage in humans
and experimental animals. Oral administration has
produced cataracts in rabbits and induced changes in
motor activity in rats and mice. Exposure to high
doses causes severe hemolytic effects. A drinking
water MCL has not been established for naphthalene.
IRIS lists naphthalene as a Group D (not classifiable
as to human carcinogenicity) carcinogen.
Ce) Dioxin: In humans, 2,3,7,8-Tetrachloro-dibenzo-p-
dioxin (dioxin) can cause chioracne, a severe skin
lesion that usually occurs on the head and upper body.
Dioxin has been reported in animals to cause changes in
the immune system that make them more susceptible to
infection. In some animals, dioxin has been reported
to cause adverse reproductive and developmental effects
such as miscarriages and birth defects in the
offspring. Based on the positive evidence in animal
studies, dioxin probably can cause cancer in humans.
The ability of dioxin to cause cancer in humans is
being reassessed by EPA. This reassessment indicates
that dioxin is potentially a less potent carcinogen.
However, EPA at this time has not changed its estimate
of dioxin cancer potency. The dioxin reassessment also
indicates that immunological, reproductive and
developmental effects may occur at lower levels than
previously thought.
(f) Toluene: ALL ce exposure to Toluene .. concentrations
of 375-1,500 mg/kg produces central nervous system
depression and narcosis in humans. Toluene has been
shown to be embryo-toxic in experimental animals, and
the incidence of cleft palate increased in the
offspring of dosed mice. Chronic inhalation exposure
to relatively high levels of Toluene caused cerebeilar
degeneration and an irreversible encephalopathy in
mammals. The MCL for Toluene in drinking water is 1.0
mg/i. IRIS lists toluene as a Group D (not
classifiable as to human carcinogenicity) carcinogen.
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(g) Mercury: Both organic and-inorganic forms of mercury
are reported to be. teratogenic and embryotoxic in
experimental animals. Mercury is acutely toxic via the
oral route. In humans, prenatal exposure to
methylmercury has been associated with brain damage.
Mercury can also affect the central and peripheral
nervous system and the kidney. The MCL in drinking
water is 0.002 mg/i. IRIS-lists mercury as a Group D
(not classifiable as to human carcinogenicity)
carcinogen.
(h) Methylene chloride: Methylene chloride
(dichioromethane) increased the incidence of lung and
liver tumors, and sarcomas in rats and mice. It was
found to be mutagenic in bacterial test systems. In
humans, Methylene chloride irritates the eyes, mucous
membranes, and skin. Exposure to high levels adversely
affects the central and peripheral nervous systems and
the heart, as well as irritation to the eyes, nose, and
throat. In experimental animals, Methylene chloride is
reported to cause kidney and liver damage, convulsions,
and paresis. The MCL for Methylene chloride in
drinking water is 0.005 mg/i. IRIS lists Methylene
chloride as a Group B2 (probable human) carcinogen.
(i) Phenol: Phenol is a human poison by ingestion,
moderately toxic by skin contact, and is a severe eye
and skin irritant. Even in small amounts, it can cause
nausea, vomiting, circulatory collapse, paralysis,
coma, and death from respiratory failure. Chronic
exposure can cause death from liver and kidney damage.
Subchronic and c ironic exposures uf pregnant rats
caused significant depression in fetal body weights. A
drinking water MCL has not been established for Phenol.
IRIS lists Phenol as a Group D (not classifiable as to
human carcinogenicity) carcinogen.
Ci) Trich] .oroethene: Trichioroethylene (TCE) has been
shown to cause cancer in laboratory animals such as
rats and mice when the animals are exposed at high
levels over their lifetimes. TCE has induced
hepatocellular carcinomas in mice and was mutagenic
when tested using several microbial assay systems.
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Some harmful effects may persist following long-term
exposure to TCE. This information is based largely on
animal studies. These studies show that ingesting or
breathing levels of TCE that are higher than typical
background levels can produce nervous system changes
and liver and kidney damage. Chemicals that cause
cancer in laboratory animals also may increase the risk
of cancer in humans who are exposed at lower levels
over long periods of time. The MCLI for TCE in drinking
water is 0.005 mg/l. IRIS lists the carcinogen
assessment summary for TCE as withdrawn and under
review. Under the Safe Drinking Water Act (SDWA), EPA
has classified TCE as a Group B2 (probable human)
carcinogen.
(k) Tetrachioroethene: Tetrachloroethylene (PCE) has been
shown to cause cancer in laboratory animals such as
rats and mice when the animals are exposed at high
levels over their lifetimes. Additionally, renal and
hepatotoxicities have been reported following
inhalation exposure of rats to fairly high
concentrations. Chemicals that cause cancer in
laboratory animals also may increase the risk of cancer
in humans who are exposed over long periods of time.
The MCL in drinking water for PCE is 0.005 mg/i. IRIS
lists the carcinogen classification of PCE as under
review. A final decision on whether PCE should be
classified as a Class B2 (probable human) carcinogen or
Class C (possible human) carcinogen has not yet been
made.
(1) Carbon Tetrach1orid. : Carbon Tetrachioride has been
shown to cause cancer in laboratory animals such as
rats and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the risk
of cancer in humans who are exposed at lower levels
over long periods of time. The MCLI for Carbon
Tetrachloride in drinking water is 0.005 mg/i.
Cm) 1,1,1-Trichioroethane: l,1,l-Trichloroethane (TCA) has
been shown to damage the liver, nervous system, and
circulatory system of laboratory animals such as rats
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and mice when thelanimalsj are exposed at high levels
over their lifetimes. Some industrial workers who were
exposed to relatively large amounts of this chemical
during their working careers also suffered damage to
the liver, nervous system,’ and circulatory system.
Chemicals which cause adverse effects among exposed
industrial workers and in laboratory animals also may
cause adverse health effects in humans who are exposed
at lower levels over long periods of time. The MCL for
TCA in drinking water is 0.200 mg/i. IRIS lists TCA as
a Group D (not classifiable as to human
carcinogenicity) carcinogen.
(n) Creosote: Creosote is moderately toxic, with a
probable lethal dose (human) of 500,000 - 5,000,000
aug/kg. Fatalities have occurred 14-36 hours after
ingestion of 7 grams by ad’ilts or 1-2 grams by
children. Exposure to creosote may result in
cardiovascular disorders such as tachycardia,
hypotension, supraventricular/ ventricular arrhythmia;
respiratory disorders such as tachypnea, pulmonary
edema, and respiratory arrest; nausea, vomiting,
diarrhea, seizures followed by coma, intense sweating,
skin ulceration, necrosis, severe eye irritation,
keratoconjunctivitis, loss of corneal epithelium,
clouding of cornea, and photophobia. The following
components of creosote are polycyclic aromatic
hydrocarbons (PAH’s) whose carcinogeriicity has been
well studied. Several case reports of human carcinomas
associated with exposure to creosote have been
published. The carcinogenic effect of creosote is
support u by reports of studies in which other coal tar
products produced turpors in mice and rats by topical
application and by inhalation, and by identification of
carcinogenic polycyclic aromatic hydrocarbons (PAN’s)
in coal tar products. Creosote constituents
benz (a)anthracene, indeno(1, 2,3-cd) pyrene,
benz (k) fluoranthene, dibenz (a, h) anthracene,
benzo(a)pyrene and chrysene are also individually
listed in IRIS with a Group B2 (probable human)
carcinogen classification.
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22. According to the Dun and Bradstreet Report for the Facility,
dated May 23, 1997, there are 85 persons employed at the
Facility. These employees may be exposed to hazardous
wastes, hazardous constituents, and/or solid wastes as
identified in Paragraph 21 above.
23. According to ODEQ’s APPLICATION FOR INJUNCTIVE RELIEF AND
APPLICATION FOR TEMPORARY RESTRAINING ORDER, filed
May 1, 1997, representatives of Respondent have made
statements to ODEQ and the press that the Facility plans to
begin accepting and processing waste from outside the
Facility.
V. CONCLUSIONS OF LAW AND DETERMINATIONS
Based on the Findings of Fact set out above, and the
Administrative Record, the Administrator has determined that:
1. Respondent is a “person” as that term is defined in
§ 1004(15) of RCRA, 42 U.S.C. § 6903(15).
2. Certain materials (or substances) found at the Faciluy
are hazardous wastes, hazardous constituents, and/or
solid waste as defined or set forth by § 1004(5) of
RCRA, 42 U.S.C. § 6903(5), § 3001 of RCRA, 42 U.S.C. §
6921, and 40 CFR Part 261.
3. These hazardous wastes, hazardous constituents and/or
solid wastes were handled at the Facility.
4. Respondent has not maintained and operated the Facility
(-7 1 to minimize the possibility of a fire, explosion, or
any unplanned sudden or non-sudden release of hazardous
X / waste or hazardous waste constituents to air, soil, or
surface water which could threaten human health or the
environment as required under 40 CFR Part 264.31.
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5. There is or has been a release of hazardous wastes,
hazardous constituents, and/or solid wastes as defined
or set forth by § 1004(5) of RCRA, 42 U.S.C. § 6903(5),
§ 3001 of RCRA, 42 U.S.C. § 6921, and 40 CFR Part 261,
into the environment from the Facility.
6. Respondent’s failure to manage hazardous waste and/or
solid waste and operate the Facility to minimize the
possibility of a fire, and the subsequent releases of
hazardous wastes and/or solid wastes from the Facility,
presents or may present an imminent and substantial
endangerment to health or the environment.
7. The past and/or present handling and release of
hazardous wastes, hazardous constituents, and/or solid
wastes at The Facility may present an imminent and
substantial endangerment to health or the environment
within the meaning of § 7003 of RCRA, 42 U.S.C. § 6973.
8. Respondent has contributed to the handling and storage
of solid waste and/or hazardous waste which may present
an imminent and substantial endangerment to human
health or the environment.
9. Resumption of Facility operations to accept and process
waste, if the corrective actions required by this Order
are not implemented, may present an imminent and
substantial endangerment to human health and/or the
environment.
10. The actions required by this Order are consistent with
RCR.A and ar necessary to protect hu 1 .. n health and/or
the environment from the release of hazardous waste,
hazardous constituents, and/or solid wastes from the
Facility into the environment.
VI. ORDER
Based upon the foregoing, and in order to abate or prevent
any imminent or substantial endangerment to human health and the
environment, Respondent is hereby ORDERED to undertake, continue
to take, and complete each of the following actions to the
satisfaction of the Environmental Protection Agency (“EPA”) and
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the Oklahoma Department of Environmental quality (“ODEQ”),
pursuant to § 7003 of RCRA, 42 U.S.C. § 6973. Respondent shall
also perform such activities necessary to secure the solid waste
and hazardous waste presently at the Facility to prevent fires,
explosions, or releases of solid waste and hazardous waste.
All work undertaken pursuant to this Order shall be developed and
performed in accordance with RCRA, its implementing regulations,
and the terms, procedures and schedules set forth in this Order.
Oral advice or approvals given by EPA representatives will not
relieve Respondent of its obligation to obtain formal written
approvals required by this Order. Respondent may, with EPA
approval, incorporate and utilize ongoing work, and/or any other
work already completed by Respondent, which had been approved by
EPA and ODEQ and complied with all applicable Federal and State
law. “Days” as set forth herein are calendar days unless
otherwise specified.
1. -Immediately after the Effective Date of this Order,
Respondent shall cease and desist operation, or shall not
resume operation if currently inactive, of the fuel blending
process, including the fuel dispersal units at the Facility,
until authorized by EPA and ODEQ.
2. Within fourteen (14) days after the Effective Date of this
Order, Respondent shall submit a report to EPA and ODEQ for
review and approval, which details the Facility operations
prior to the fire on March 26, 1997, including, but not
limited to, wastes received, compatibility testing done,
Facility process equipment condition and status, actions
taken immediately prior to the fire, etc.
3. The report specified in paragraph 2, above, shall also
determine the cause or causes of the fire. Should
Respondent not be able to determine the exact cause of the
fire, then the report shall identify the most likely
cause(s). The report shall also recommend steps to be taken
to prevent or minimize the potential for any future fires or
explosions.
4. Prior to resuming fuel blending activities, Respondent shall
undertake, or continue to take the approved recommendations
to prevent or minimize the potential for future fires or
explosions to the satisfaction of EPA and ODEQ.
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5. At least fourteen (14) days prior to returning any fuel
blending process equipment to service, Respondent shall
demonstrate the integrity and suitability of all such
equipment to the satisfaction of EPA and ODEQ. Respondent
shall submit an Integrity Report to EPA and ODEQ for review
and approval that includes an engineer’s certification of
integrity of all such equipment. The Integrity Report shall
also include an evaluation of the integrity of the concrete
in the Container Storage and Recycling Building.
6. At least fourteen (14) days prior to returning any fuel
blending process equipment to service, Respondent shall
identify the proposed use of such equipment for EPA and ODEQ
approval.
7. During the post-fire cleanup and remediation of the
Facility, Respondent shall implement measures to prevent the
combining of non-debris hazardous waste with hazardous waste
debris, as the terms are defined at 40 CFR 268.2, and to
correct any such combining that has already occurred. All
debris and non-debris hazardous waste shall be properly
disposed of in accordance with all applicable State and
Federal regulations.
8. No later than fourteen (14) days after the Effective Date of
this Order, Respondent shall update the Facility Contingency
Plan as appropriate to include any necessary changes in view
of the experience following the March 26, 1997, fire, for
EPA and ODEQ review and approval.
9. Within thirty (30) days after the Effective Date of this
Order, Respondent shall provide classroom instruction by
persons trained in hazardous waste management procedures to
all Facility personnel, which satisfies the requirements of
40 CFR Part 264.16(a) and (b). The training shall also
provide classroom instruction to prevent the possibility of
fire, explosion, or any release of solid waste and/or
hazardous waste. Such instruction shall include, inter alia,
the following:
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(a) Proper procedures and necessary equipment for
accurately assessing waste received from off-site to
insure that only permitted wastes are accepted;
(b) Proper procedures and necessary equipment for
effectively determining the compatibility of wastes to
insure that incompatible or reactive wastes are not
improperly mixed.
Within seven (7) days after the Effective Date of this
Order, Respondent shall submit to EPA and ODEQ in writing
the name and qualifications of the person(s) proposed to
provide such instruction. If EPA disapproves of the
selection of such person(s), Respondent shall select and
submit to EPA the name and qualifications of a person that
is acceptable to EPA.
10. 4t least three (3) business days prior to receiving
hazardous waste from off-site for fuel blending, or resuming
any other process activities related to fuel blending at the
Facility, Respondent shall submit to EPA and ODEQ notice in
writing of its intention to resume such activities. In
addition, before Respondent may resume such activities, a
duly authorized representative of Respondent, who is capable
of legally binding Respondent, shall certify to EPA and ODEQ
that Respondent has complied with this Order. Such
certification shall contain the following language:
“I certify under penalty of law that Chief Supply
Corporation, Inc., has complied all relevant State and
Federal regulations and the terms of this Order issued
by the United States Environmental Protection Ac
pursuant to Section 7003 of the Resource Conservation
and Recovery Act, as amended, EPA Docket No. VI-7003-
04. I am aware that there are significant penalties
for submitting false information, including the
possibility of fine and imprisonment for knowing
violations.”
11. Within twenty-four (24) hours after the receipt of this
Order, Respondent shall notify EPA and ODEQ by telephone
whether Respondent intends to comply with the terms of this
Order, and shall provide written confirmation of its
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intention to comply to E A and ODEQ within forty-eight (48)
hours after receipt of this Order. IF SUCH NOTICE IS NOT
RECEIVED, EPA AND ODEQ WILL PRESUME THAT RESPONDENT DOES NOT
INTENT TO COMPLY.
VII. PROJECT MANAGER
1. No later than ten (10) days after the Effective Date of this
Order, EPA and Respondent shall each designate a Project
Manager. Each Project Manager shall be responsible for
overseeing the implementation of this Order. The EPA
Project Manager will be EPA’s designated representative at
The Facility. All communications between Respondent and
EPA, and all documents, reports, and other correspondence
concerning the activities performed pursuant to the terms
and conditions of this Order shall be directed through the
Project Manager. All communications from EPA to Respondent,
and all documents, reports and other correspondence
c ncerning the activities performed pursuant to the terms
and conditions of this Order from EPA to Respondent shall
also be directed to the address given in Section IX.
2. Whenever possible, EPA and Respondent should provide at
least five (5) days written notice prior to changing its
Project Manager. However, written notice shall be provided
no later than five (5) days following such change.
3. The absence of the EPA Project Manager shall not be cause
for the stoppage or delay of work at The Facility.
VIII. ADMINISTRATIVE RECORD
This Order is based upon the Administrative Record compiled
by EPA, which is available through the Freedom of Information Act
(FOIA) for public examination at the EPA Region 6 offices, 1445
Ross Avenue, Dallas, Texas, during normal business hours, Monday
through Friday.
IX. NOTICE
Whenever under the terms of this Order notice is required to
be given or a document is required to be forwarded, to EPA it
shall be directed to the address specified below, unless notice
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is given in writing to Respondent of a change in address or
unless it is otherwise specifically provided in the Order. All
correspondence shall include a reference to the case caption.
Chief, Technical Section (6EN-HX)
Hazardous Waste Enforcement Branch
U.S. EPA, Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733
Attention: Gary Miller
Whenever under the terms of this Order notice is required to
be given or a document is required to be forwarded, to
Respondent, it shall be directed to the address specified below,
unless notice is given in writing to EPA of a change in address
or unless it is otherwise specifically provided in the Order.
All correspondence shall include a reference to the case caption.
Chief Supply Corporation, Inc.
P.O. Box 249
Haskell, OK 74436
X. REPORTING AND PUBLIC ACCESS TO DOCUMEN’TS AND SANPLING
Respondent may assert a business confidentiality claim
covering all or part of any information submitted to EPA pursuant
to this Order. Any assertiox of confidentiality must be
accompanied by information that satisfies the items listed in 40
C.F.R. § 2.204 Ce) (4) or such claim shall be deemed waived.
Information determined by EPA to be confidential shall be
discloseQ only to t e extent permitted by 40 C.F.R. Part 2.
no such confidentiality claim accompanies the information when it
is submitted to EPA, the information may be made available to the
public by EPA without further notice to Respondent. Respondent
shall not assert any confidentiality claim with regard to any
analytical or physical data. Nothing in this Order requires
Respondent to submit any document that is subject to a legitimate
claim of privilege.
XI. SITE ACCESS AND RECORD RETENTION
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1. EPA, its contractors, employees, and/or any duly designated
EPA representatives •are authorized and permitted pursuant to
Section 3007(a) of RCRA, 42 U.S.C. § 6927(a), to enter and
freely move about The Facility at all reasonable times, for
the purposes of enforcing the requirements of RCRA and this
Order, including:
(a) Interviewing Facility personnel and contractors about
work being performed at The Facility in carrying out
the terms of this Order; inspecting records, operating
logs, and contracts related to The Facility;
(b) Reviewing the progress of Respondent in carrying out
the terms of this Order;
(c) Conducting such tests, sampling, or monitoring as EPA
deems necessary;
Cd) Using camera, video tape recorder, sound recorder, or
other documentary type equipment to document conditions
at The Facility; and
Ce) Verifying the reports and data submitted to EPA by
Respondent.
2. Respondent shall permit EPA and its representatives
access at all reasonable times to The Facility and subject
to Paragraph 3 below, to any other property to which access
is required for implementation of this Order. Respondent
shall permit such persons to inspect and copy all records,
files, photographs, documents, including all sampling and
monitoring data, that pertain to work undertaken pursuant to
this Order and that are within the possession or under the
control of Respondent or his contractors or consultants.
Nothing in this Order requires Respondent to submit any
document that is subject to a legitimate claim of privilege.
3. To the extent areas adjacent to The Facility are presently
owned by parties other than those bound by this Order,
Respondent shall obtain or will use his best efforts to
obtain site access agreements from the present owners to
perform work pursuant to this Order no later than thirty
(30) days after EPA approval of the specific workplan. Best
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efforts shall include, but not be limited to, requiring
Respondent to pay reasonable rental costs and compensation
for losses sustained by the owner or occupant of the realty.
Access agreements shall provide access to Respondent, his
contractor(s), the United States, EPA, the State, and their
representatives, including contractors. Any such access
agreements shall be incorporated by reference into this
final Order. In the event that site access agreements are
not obtained within thirty (30) days after the specific
workplan approval, Respondent shall notify EPA by telephone
within twenty-four (24) hours after expiration of the above
thirty (30) day period, and shall, within seven (7) days
after the oral notification, notify EPA in writing of the
failure to gain such site access agreements regarding both
the lack of, and efforts to obtain, such agreements. If EPA
is able to obtain access, Respondent shall perform the work
described in this Order.
4. In addition, all data, information, and records created or
maintained in connection with the implementation of work
under this Order shall be made available to EPA. Respondent
shall retain all such data, information or records for five
(5) years after termination of the Order and provide
notification to EPA sixty (60) days prior to the destruction
of any such documents.
5. All employees of Respondent and all persons, including
contractors, who engage in activity under this Order, shall
be available to and shall cooperate with the EPA.
6. Nothing in this Section is intended to limit, affect or
otherwise constrain Er’A’S rights of .. ess to property and
records pursuant to applicable law.
XII. RESERVATION OF RIGHTS
1. EPA expressly reserves all statutory and regulatory powers,
authorities, rights, remedies, both legal and equitable,
which may pertain to the Respondent’s failure to comply with
any of the requirements of this Order, including without
limitation, the assessment of civil penalties under Section
7003(b) of RCRA, 42 U.S.C. § 6973(b). Notwithstanding the
preceding sentence, by signing this Order EPA intends and
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agrees to first seek compliance with the requirements of
RCRA § 7003 pursuantto the terms of this Order. If
Respondent does not comply with the terms of this Order, EPA
may use any other authorities available to it to compel
complianc with § 7003. This Order shall not be construed
as a covenant not to sue, release, waiver, or limitation of
any rights, remedies, powers,. and/or authorities, civil or
criminal, which EPA has under’RCRA, CERCLA, or any other
statutory, regulatory, or common law enforcement authority
of the United States. This Order shall not be construed as
a ruling or determination of any issue related to any
Federal, State, or local permit whether required in order to
implement this Order, or required in order to continue or
alter operations at The Facility (including but not limited
to construction, operation or closure permits required under
RCRA), and Respondent shall remain subject to all such
permitting requirements.
2. EPA reserves the right to disapprove of work performed by
Respondent not in accordance with this Order and to require
that Respondent perform additional tasks consistent with
this Order.
3. EPA reserves the right to perform any portion of the work
consented to herein or any additional site characterization,
feasibility study, and remedial work as it deems necessary
to protect human health and/or the environment. In the
event that Respondent ceases to or fails to adequately
perform the requirements contained in this Order, EPA may
exercise its authority under CERCLA to undertake response
actions at any time. In any event, EPA reserves its right
to seek reimbursement from Respondent for costs mci :,d by
the United States. Notwithstanding compliance with the
terms of this Order, Respondent is not released from
liability, if any, for the costs of any response actions
taken or authorized by EPA.
4. If EPA determines that activities in compliance or
noncompliance with this Order have caused or may cause a
release of hazardous waste, hazardous constituents, and/ or
solid waste, or a threat to human health and/or the
environment, or that Respondent is not capable of
undertaking any of the work ordered, EPA may order
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Respondent to stop further implementation of this Order for
such period of time as EPA determines may be needed to abate
any such release or threat and/or to undertake any action
which EPA determines is necessary to abate such release or
threat. Failure to comply with EPA’s stop work order may
result in a penalty not to exceed $5,000 per day of
continued non-compliance with EPA’S stop work order pursuant
to RCRA Section 7003(b) of RCRA, 42 U.S.C. § 6973(b).
5. In the event EPA suspends the work or any other activity
being performed at The Facility pursuant to this Order, EPA
shall extend affected schedules under this Order for a
period of time equal to that of the suspension of the work
plus reasonable additional time for resumption of
activities. If the delay pursuant to this Section is caused
by Respondent or his contractor’s noncompliance with this
Order, then any extension of the compliance deadlines shall
be at EPA’s sole discretion. Any extensions in the
schedules set out in this Order must be made by EPA in
writing.
6. This Order is not intended to be nor shall it be construed
to be a permit. Further, the parties acknowledge and agree
that EPA’S approval of any final workplan does not
constitute a warranty or representation that the workplan
will achieve the required cleanup or performance standards.
Compliance by Respondent with the terms of this Order shall
not relieve Respondent of his obligations to comply with
RCRA or any other applicable local, State, or Federal laws
and regulations.
7. Notwithstandi any other provision of this Order, no action
or decision by EPA pursuant to this Order, including without
limitation, decisions of the Director of the Compliance
Assurance and Enforcement Division, or his/her authorized
representative, shall constitute final agency action giving
rise to any right of judicial review prior to EPA’S
initiation of a judicial action to enforce this Order,
including an action for penalties or an action to compel
Respondent’s compliance with the terms and conditions of
this Order.
Page 25
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8. In any action brought by. EPA for a violation of this Order,
Respondent shall have the. burden of showing that EPA’s
position, including without limitation any interpretation of
the terms and conditions of this Order and of applicable
Federal and/or State law and regulations, was arbitrary and
capricious or otherwise not in accordance with applicable
law.
9. In any subsequent administrative or judicial proceeding
initiated by the United States for injunctive or other
appropriate relief relating to The Facility but unrelated to
matters covered within the scope of this Order, Respondent
shall not assert, and may not maintain, any defense or claim
based upon the principles of waiver, res judicata,
collateral estoppel, issue preclusion, claim-splitting, or
other defenses based upon any contention that the claims
raised by the United States in the subsequent proceeding
w ere or should have been raised in the present matter.
10. Respondent reserves any and all rights and defenses, whether
of a legal or equitable nature, that are not expressly
waived herein.
XIII. SUBSEOUENT MODIFICATION OF THE FINAL ORDER
1. Any deliverable required by this Order is, upon written
approval by EPA, incorporated into this Order. Any
noncompliance with such EPA-approved deliverables shall be
considered a violation of this Order.
2. No informal advice, guidance, suggestions, or comments by
EPA iegarding I ports, plans, specifications, schedules,
any other written documents submitted by Respondent will be
construed as relieving Respondent of his obligation to
obtain written approval, if and when required by this Order.
3. If EPA determines that modification of the work specified in
the Order is necessary and appropriate, EPA may require that
such modification be included.
4. If Respondent believes that a modification of the Work
specified in work plans developed pursuant to the Order is
necessary and appropriate, Respondent may petition to EPA
Page 26
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for an EPA determination on such potential modification,
submitting appropriate documentation. Within a reasonable
time after receipt of such petition, EPA will make a
determination. Within a reasonable time after receipt of
such petition, EPA will make a determination whether the
order should be modified.
XIV. EPA APPROVALS/DISAPPROVALS
All decisions, determinations and approvals required to be
made by EPA under this Order must be in writing. If the EPA does
not approve any deliverable required to be submitted to EPA for
its approval pursuant to this Order, the Respondent shall address
any deficiencies as directed by the EPA and revise and re-submit
the deliverable within the time period specified in this Order
for EPA’s approval.
-XV. PARTICIPATION IN COMMUNITY RELATIONS ACTIVITIES
Respondent, his agent or consultant shall be given notice of
and shall participate in public meetings, as appropriate, which
may be held or sponsored by EPA to explain activities at or
concerning the Facility.
XVI. TERMINATION AND SATISFACTION
Respondent may seek termination of this Order by submitting
to EPA a written document which indicates Respondent’s compliance
with all requirements of this Order and the associated dates of
approval correspondence from EPA. The provisions of this Order
shall be deemed satisLied upon Respondent’s au EPA’s execution
of an “Acknowledgment of Termination and Agreement to Record
Preservation and Reservation of Rights” (“Acknowledgment”). The
Acknowledgment will specify that Respondent has demonstrated to
the satisfaction of EPA that the terms of this Order, including
any additional tasks required by EPA pursuant to this Order, have
been satisfactorily completed. Respondent’s execution of the
Acknowledgment will affirm Respondent’s continuing obligation (1)
to preserve all records as required in Section XIV: Site Access
and Record Retention, and (2) to recognize EPA’s reservation of
rights described in Section XIV: Reservation of Rights, after
all other requirements of the Order are satisfied.
Page 27
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XVII. qUALITY ASSURANCE
Throughout all sample collections and analysis activities,
Respondent shall use EPA-approved-.quality assurance, quality
control, and chain-of-custody procedures, which shall be part of
proposed and approved plans. In addition, Respondent shall:
1. Follow all relevant EPA guidance for sampling and analysis
unless determined by EPA not to be applicable;
2. Ensure that laboratories used by Respondent for analyses
perform such analyses according to EPA methods (SW-846, 3rd
Edition, or as superseded) or other methods deemed
satisfactory to EPA. If methods other than EPA methods are
to be used, Respondent shall submit all protocols to be used
for analyses to EPA for approval no later than thirty (30)
days prior to the commencement of analyses and shall not
implement such protocols until receipt of EPA approval; and
3. Ensure that laboratories used by Respondent for analyses
participate in a quality assurance and quality control
program equivalent to that which is followed by EPA. As
part of such a program, and upon request by EPA, such
laboratories shall perform analysis of a reasonable number
of known samples provided by EPA to demonstrate the quality
of the analytical data.
XVIII. STATEMENT OF SEVERABILITY
If any provision or authority of this Order, or the
application of this Order o any party or circumstances, is held
by any judicial or administrative authority to be invalid, the
application of such provisions to other parties or circumstances
and the remainder of the Order shall not be affected thereby.
XIX. OTHER ENFORCEMENT AUTHORITY
Failure or, refusal to carry out the terms of this Order in a
manner deemed satisfactory to EPA may subject Respondent to a
civil penalty enforcement action in an amount not to exceed
$5,000 for each day of non-compliance with this Order, in
accordance with Section 7003(b) of RCRA, 42 U.S.C. § 6973(b).
Page 28
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XX. EFFECTIVE DATE
1. This Order shall become effective upon receipt of the Order
by Respondent.
2. Respondent may, within seven (7) days after the Effective
Date of this Order, request a conference with EPA to discuss
this Order. If requested, the conference shall occur at the
U.S. Environmental Protection Agency, Region 6, First
Interstate Bank Tower, 1445 Ross Avenue, Dallas, Texas
75202-2733. This conference will be presided over by the
Regional Judicial Officer (unless another person has been
designated). Requests for a conference shall be made by
telephone f ollowed by a written request confirmation mailed
that day, by certified mail, return receipt requested to
Efren Ordonez, Assistant Enforcement Counsel (6EN-LH), U.S.
Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Eirst Interstate Bank Building Bank Building, Dallas, Texas
75202-2733. In addition, a copy of the written confirmation
shall be mailed to Gary Miller (6EN-HX), Technical Section,
Hazardous Waste Enforcement Branch, U.S. Environmental
Protection Agency, Region 6, 1445 Ross Avenue, Dallas, TX
75202-2733.
3. The purpose and scope of this conference shall be limited
to issues involving the implementation of the actions
required by this Order and the extent to which Respondent
intends to comply with this Order. This conference is not
an evidentiary hearing, and does not constitute a proceeding
to challenge this Order. It does not give the Respondent a
right to seek review of this Order, or to seek resolution of
potential liability, anc no official stenographic record of
the conference will be made. At any conference held
pursuant to Respondent’s request, the Respondent may appear
in person, or by an attorney or other representative.
4. Within three (3) business days following the conference, the
Regional Hearing Officer shall prepare and sign a written
summary of the proceeding. The summary shall address the
significant arguments raised by the Respondent, recommend
how the Order should be modified, if at all, and contain the
reasons for the revisions, if any. Based on a review of the
administrative record, any probative information or argument
Page 29
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made by the Respondent, and the recommendation of the
Regional Hearing Officer, the Regional Administrator may,
upon specific written notice to the Respondent, modify or
revoke the Order.
IT IS SO ORDERED:
Date: ________________ By:
Jane N. Saginaw
Regional Administrator
U.S. Environmental Protection Agency
Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733
Page 30
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SENT BY:EPA. REQ 6. DALLAS. TX:10- 8-97 1r34AM CAED--L .Ea4L BR— 2025640022:; 3/ 3
reasons for the revisions, if any. Based on a reviev of the
administrative record, any probative information or argument
made by the Respondent, and the recommendation of the
Regional Hearing Officer, the Regional Administrator may,
upon specific written notice to the Respondent, modify or
revoke the Order.
IT IS SO ORDERED:
Date: By: ______________________
f Jane N. Saginaw
[ Regional Administrator
U.S. Environmental Protection Agency
Region 6
144E Ross Avenuo
Dal s, Texas 75 O2—27 .
Page 25
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STATES ENVIRONMENTAL PROTECTION AGENCY
.c” RE lQ 4 IV
APR 0 ‘ 345’COLJRTLANO 5 R T. ‘w E
U A’LANTA G0 GA 30383
BY KAND DELIVERY
4 RC
Rail Services , Inc.
Calvert City, Plant
P.O. Box. 35.; :;
Second Aveniae, 5W
Calvert City, .Xentucky
Re: ‘EPA I,D. No. . YD 991 276 833
, : :.
Dear Sir: fr . ‘ . ‘ . .
I . I
Enclosed is:anOrder issued on behalf of the Athninistrator of
the United States Environmental Protection Agency to Rail.
Services,4Inc.-,i pursuant to Section 7003 of the Resource
Conservation and Recovery Act (42 U.S.C. S6973). The Order
requires certain activities to be taken at Rail Services, Inc. ‘s
facility located in Calvert City, 1 entucky. Please refer to the
enclosed Order for.the specific actions required of Rail
Services, Inc. andthe ti ie within which such actLoris xnust be
taken.
If you fail; tocomply with the terms of the Order, you may be
subject to an ‘action in United States District Court for
enforcement’of the Order,’as well as a civil penalty in an
a.mount not exceeding the sum of $5,000.00 for each day in which
you are inviolation of the Order.
If you should have an’y questions or would like to request a
conference to,d.iscuss this Order as set forth in Section X of
the Order, :please call William B. Bush, Jr., .ssistant Regional
Counsel, at (404) 347—2641.
-- I
Sincerely,,
Don d J4Guinyard
Acting Director
Waste Z anagement Divis ion
Eric losure
cc: Ms. Sti ah’Bush
entuc) rCDépart ient’ for
Environmental Protection
Prinre on Re. . yce P p
-------
UNITED STATES ! IROrfl NTAI. ?ROTECTION AGENC 1
REGION IV
T ATTER 0E
Rail Services, Iflc. ) PrOCeed .ngS Under Section 7003
P.o. Box 35 ) Resource Conservation and
Second Avenue. Southwe t ) Recovery Act, as a ende4.
caivert City, Kentucky 42029 ) (42 U.S.C. 5 6973j
Docket No.; 91- 14-R
EPA t.D. No.: KYD 991 276 833
ADMINISTRATIVE ORDBR
I. J RrsDIc’rIoN
The following Order is hereby issued to Rail Services, Inc.
(Respondent), P .O. Box 15, Second Avenue, Southwest, Calvert City,
Kentucky 42029, pursuant to the Resource Conaervation and Recovery
Act, as aended (R A), Section 7003:, 42 U.S.C. Section 6973, by
authority delegated by the Adwiniatr tor of the United States
Environeonia). Protect ion Agency (EPA) to the Regional Adeintetrator
of 1 eqion I’J and further delegated to the Director, Waste Manag ent
OLvision, Region I V.. Netice of the issuance of this Order has been
given to the C nwsalth of Kentucky, Departent for Bnvirenaiental
Protection in Frankfort. Kentucky ( EP).
The Director, Waste Maeag t Division has received inforuiation
from ‘.‘hich a’deter ination has been sade that the present and past
generation, handling, storage, treatefflt, arid/or dispo al of solid
-------
—2—
and/or hazardous waste by Respondent at its Caivert City, Kentucky
fac Lity ( ‘ Facility”) may present an i n i.nent and substantial
endangerment to human health or the environment. Factual support for
!PA’s determination that such an endangerment may exist is set forth
in the Administrative Record kept on file in EPA ’s Region IV office.
Thin order directa you to undertake action to protect the pablic
health and the environment from the endangerment which may be
presented by the Facility.
II. FINDINGS OP PACT
1. Respondent is a corporation doing businesa in the
Coa onwealth of Kentucky and is a person as defined in Section
1004(15) of RCRA. 42 U.S.C. Section 6903(15).
2. Respondent owns arid operate. a haza.rdous waste ma.nag ent
facility located on Second Avenue SW Calvert City, Kentucky which is
subject to generator and interim status requirements (40 CP’R Parts
262 and 265, and 401 K R 32 and 3S) Respondent engages in the
generation. treatment, storage, and/or disposal of solid and/or
hazardous waste at the Facility as these terms are defined in Section
1004(S)a.nd(27) of R &,42 U.S.C. 6903(5) and (27).
3. specifically Respondent engages in the business of rail car
cleaning, ‘including, without Limitation, eaintenance, painting and
lining, pLia solvent recovezy and waste treatment.; RaU. cazs
transported to the Facility contain residues which are 7 olid wastes.
-------
p:. . 3’ -
In some jnatances,ea4lCarsCorlta .n solid wastes which are or may
4, ’ /
become hazardous ,wastes. These wastes are removed from the rail cars
• ,. .. t
Lfl the cleaning rocess and are then subject to storage, treatment,
-I ,
and/or disposal on—site s those texas are defined in Section’
- • I;. S.
, ‘ ,. “ 1
lO04(33), ( 4)and.(3)’QtRCP.A. 42 U.S.C. 56903(33), (34) and (3).
4. Piarsan Section 3005(a) of RcRA, 42 U.S.C. 5 6925(a),
Respondent submitted a, Part perzuit application, dated Nov ber 16,
• ji k ...
1980, as amended June 27, ,1985, identifying the hazardous wastes
I ’ ‘ frr, •: ‘
managed ‘at the Facility ‘as followe:
1r L : ‘1c : .5
a.. tJ’ Iazazdoias wastee exhibiting the characteristics of
‘ .; .•- •:. . - • I
• t ’c • . . . .. .
ignitabi.lity (DOOl), corrosivity (D002), reactivity (D003),
• • t3 L: . )- •
and EP toxicity (D004.. DOLl), as identified at 40 CPR Parts
• .4’ ’i • T
261!2O.1 ’261.24 . (4O1-K a.31:O30, - Sections 2 5];
4 C
fl; -
b. ! Hazardous wastes fr non-epeeLfic sources (FOOl — P012.
P019, and P024), as identified at 40.CPR Part 261.31 (401
j ; . t • ,
- KAR31:040, Section 2);
4:’ • . • .
c. aazardous,wastesfrou apecifi sources (X001— KOll, Ol3 -
‘ ‘I
• . .1
K030,m044— X052, KOGO — R062, 1 (069, K071, 1(073, 1(083, 1(085
— 1(087, 1(093 — RD96, 1(100, 1(103 -— Xi .06) as identified at 40
.4- 1
S.
CFR Part 261.32 (401 X R 31:040, Section 3]; and
I • -
• . :N • • P- t ‘
d. r DLscarded co ercia]. ch nicat products, ;off-.pecificatien
• ,, • • .•
corm rc4l ch .icaL products, containeg reaidue5, apflL
• ! : • . , - - - - - . •. •• - 5 . —
residues thereef (POOl .— P123.-:U001:- 0239; -U242, .U243, and
• : • • - — S —
U247)’as identified-at 40 CTa Part(261:33 - (4Ol KA1I-31:O40,
Section 41.
-------
74—
89,’. P and Respondent entered Lnto ar
• . , .:. .
Ad jr , r pursuant to Secti.on 3008(h) of RCRA,
• • . .• .
42 U.S. C., O der.), based on the determination that
‘ U I 3
‘ — ‘ ‘i ; •
hazardou . rde’ae constituents ha’re been re] .eased
• . ••
into the, y-five (35) potential soLid c.’aste
manage !a U y and that corrective action
.‘as req • e’alth and/orthe environment. The
— . •.., .• ..
• I’ .. . .
30 08(h)’ - t;.to conduct a R RA Facility
• jicg. .t _; •. ,. .. - I
Invest, Meaaur!8 1 Study. Once Respondent ’
(q. :v .. s. ‘
compi slects the correâtive
.n: 1 i . -
measures 3(h)Order provides for a period
of negotiat Respondent of an Administrative Order
• ,• : .
on Cansenti !decree ferimplementation of the
)
corrective poodent has subitted a R &
•; I ,• •
Facility.. pursuant to the 3008(h) Order., The
.ilI •
30 08(h) ’O •,;hcwever, relieve Respondent from its
obligationst ply,with:R A or’any ether applicable state c c
Ir!
federaL-lawer egilatiOo. , : 1 .
! t. 4 - ’ •
6. Pureua tto a Compliance vaLuation,InvestigatLon (1)
I .
I . • I
conducted en Ea .rch’12, 1991, EPA observed that the releases of
J . •
aza.rdoua wasteq’ and/er, haza.rdoias . constituentS from many of the S JM s
‘
.dentified Ln tho .3008(b) 0rder were continuing.
• j • ll cI i .i, J..j
• tr ’.si .r- i”i . ‘) I r :,
-------
7; fIn äddition P .tdeterfl%ined .PurSUant to the March i2. L991
‘ /
cEl that ,Respondent is thViCLatiOTl of nurnerous generator and ‘thteri t
I. ic..; - ,
states requirements, including, but not li u.ted to. the fo1.Lo .’ing:
4. .s •
, —
a. Resoendent does ot maintaLn and operate the aci1Lty to
—‘ .
in ize the:possibil -t r of a fire, explosi.oft, or any unplanned
- ‘ .
sudden or norL—sudden. release of haza.rdous waste or hazardous waste
‘ . -
1•. Jn t
ii 13’ •‘
constituentS to çai.r, soil, or surface water c.’hi.ch - c Ould threaten
- • .
human health o ’the environment in violation of 40 CPR Put 265.31
1 .1J1’ I
and 40]. iCAR j35:030,’Section,2-
• • -. !
b. - Respondent is not equipped with adequate fire extinguishers
: —
and decontamination equipeent in violation of 40 CFR Part 265.32 (c)
and 401 MR 35:030, Section 3 (3).
c. Respondent does not have water at adequate voLume and
pressure at the Facility in violation of 40 CFR Part 255.32(d) and -
4.- .. . -
401 KAR. 35:030, Section 3(4)..
.
d.- Respondent does not test and maintain required Facility
-“ -
communications.or alaxin systoes fire protection equi ent. spill
4 .
control e nt and decont 4 ation equipeent to assure their
proper operation i time of ergency in violation of 40 CFR Part
265.33 and 401 MR 35:030, Section 4.
• • 1 Y: Li•
e. Raspondent does nat maintain aisle space to allow the
• .‘; •. c - — - . —•
unobstzucte4 mov nt of personnel, fire protec ion aquipnent , - spill
• . . . .
control equi ent- and. decontamination eqjzi ent to .axeai of Yacility
• :. •:-:::-
operation in .n. oeergency i.n violation of 40 dR Part 265 35 and 401
• ‘ .t’. -I . . • .
- •. -
MR 3S:030,. Zect .on 6..
• .. . ..
-------
-6-
f. Respondent did net carry c t L!mediatety the provisions of
its contingency plan/when there was a fire and/or explosion attl e
aci1ity on 5 ebruary 23. 1991 in v.olat .on of 40 CFR Part 265.51(b)
and 401 AR 35:040. Section 2 (2).
g. EPA can net deter zLne whether Respondent has attempted to
make any arrangements .‘ith Local. a’.ithorit is a to respond to
emergencies pursi ant to 40 C?R Part 265.37 and 401 KAR 35:030,
Section 7.
Pt. Respondent ‘a contingency plan does not describe arrangements
agreed to by local police depaztments. tire departments, hospitals,
contractors, and state and local emergency response team.a to
coordinate emergency services in violation of 40 CFR Part 255.52(0)
and 401 KAA’35:040. Section 3 (3).
i. Respondent has not s itted copies of its cant irigency plan
to all. Local police departments, fire departments, hospitala, and
state and Local emergency response teams that may be called upon to
- ‘. .! . , .. -. . -. ,
provideemergeecy;aervices in violation of 40 CTR Part 265.53(b) and
• j_•’
401 KAR 35:040, Section 4 (2).
j. Respondent does not transfer hazardous waste from a container
when it begins to :1e0.k to a container that is in good condition in
• l!. ’ ... ,
violation of 40 CFR Part 265.171 and 401 RAR 35:180, Section 2.
k. Reep ndents Facility baa containers holding hazardous i.’aato
- . - : -
with no Lids bunge or Lids that axe u.naecured in viola;ion of 40
CFR Part 265.173(a) and 401 RAR3S:i80, Section -
-------
—7—
1. eapo thandles or stores ContaLflers holding hazardous
a,
:‘ ‘. i’ •
waste .n canner which causes thecn to rupture and/or Leak in -
vi.olati.on of 40 CFR Part 265.173(b) dnd 401 ICAR 35:180, Sectton 4
(2).
Respondent :, e5 not. inspect areas where containers are stored
‘ :
at Least weekly, looking foe 1.aa.ka and for deteriorat .on caused by
corroeioner 1 other factOr5 in violation of 40 CFR Part 265.174 and
401 .AR 35i180; Section 5. -
• •... . .
n. . ‘Respi 9 ndent does not :determ ne whether ao1 .d wastes which it
- a • , -l..
r trj; ..
generatas.ar 1hasardouB wa8tea in violation of 40 CYR Part 262.11 and
J f • .
401 gAR32:010,VSeCtiefl.2.
o. . Respondent ha5 no fence or other s ana of security to prevent
-‘
the un3c owinq 1 or ,un;uthorized entry of any person onto the acti’e•
. .,., :;f •.
portion of the Tacility;in ,i’iolation of 40 CP’R Part 265.14(a) and (b)
- •2 -. 4t . 44
and 401 KAR 35:020, Secti.on 5(1).
i p • : ‘• .
Respondent baa no signs with the legend Danger —
• a
(lnauthorized 1 personnel Esep out or similar Language at the entranee
• ••• .,- . - .
..a (‘ W 4’..
to any active portia; of. the Facility in vLoLattan of 40 ‘R Part
—
265.14(c) and , .40L:Z R 35:020, Section 5 (3).
. . •
g. Respe w t doel 1 nct perform inspections, have a written
O :i: •
inspection ecbed a1e. or record inspections in an Lnspectiou log or
. • . .! . - •
sunmaxyin.v o1ation ef 40 CTh Part 265.15 (a), (b), and-Cd) and 401
4 * - - - ‘ -
AR 35;020, Section ’.6(1)(a),(2)(a) , and (3). In addition,
ill !jr. ..
Respondent doea noi:have a record of any repairs or other - remedial
-------
• actions,tak2r to .bate a. release of hazardous waste constituents or a
;
t ’treat to 1 huan health in vLo] .atjofl of 40 CFR Part 265.15(dj and 401
;;
KAR 35:020. • 5ec ion 6 (4).
.,, .1.•. •.
I ,
r. Respendents personnel have not cceso uLly conpleted a
I’
. ‘ ‘j’ ‘
pcograofclassrooe inBt .tction or oft-the-job training that teaches
‘I. • La. . x,.
• ‘ . ;• • 4 :. r
th to i erforza theLr duties in a way that ensures Respondenta
co pLianca t’i .th the requirements of 0 CT Part 265 in violation of
I’ • . -
:‘
40 C ’R Part 265 16(a)(l) and 401 AR 35:020, Section 7 (1)(a)..
• ‘ ‘ ‘ ,: ,
• : Respo en5 do • not have a personnel training program which
• ..!i. •_ -
.:: ‘ : -
is’di ected —- ‘tined, in ha axdous waste ma.nag nt
procedures •‘40 CYR Part 265.16(a)(2) and 401 KAR -
3S:020 Section-7 (1)(b).
• .-:• - ‘ ‘; :4i ’: • f ” ’
t. Respondent does sat have a personnel training program
-‘ .: • •
designed to ensure that Respondent personnel axe able to respond
• ‘
effectiveLy to. eeer9encies in.vio] .atioa of 40 CFR Part 265.1.6(a) (3)
•
and 401. KAR 35:020. Section 7 (l)(c)..
: •i -
u. Respondent doee not confine emokinq by employee, to
I . , • I
I.
specifica11y%d ignnted a.reas and does not have conapLcueualy placed
; •• : • .. .‘
at the FacLlityç”$o Smoking signs where there is a hazaxd froe
• ! •
ignitab le or reactLve wastes in violation of 40 C R Part 265.17(a)
- •
and 401 KAR 35:020, Section 8 (14.
• :Ii •
I • - . - - . -
v. Respondent, does not have an operatang record whteh has a
I. S
description and the’quantity of each hazardous waste received, and
.• • • -
the method(s) and-data(s) of its treatment, storaqe; or dispoaa1 at
-------
CFR Part 265.73(b) (1) and 401 ZCAR
have arvoperatLng record ‘.‘hicliaho’.’a the-
t•—.
waate-withi the Yaci.Lity and the quantity
• . :
f :° 265.73(b) (2) arid 401 KAR
onetrate financial reaponethLlity for
non- uddcri, acc 4enta1 occurrence. a.riairig
- jn’vjolatjon of 40 CFRPa.rts 255.143,
r
M 35:090, Section 2, 35:10O,
contI uLngrsLea.ee of hazazdaue waetea
.. -4. :— ..
,frce SWXUeat the 7aciljty and the
‘I’..
aete and hazardoiag waste at th
12,1991 Z, Respondent hae
pro haraxdeue to huea.n health and the
i .1
s”idene. of the conditione at the FacLlity which
.
health and the erivi:or ment, eeveral recent
I at- the Facility, where Reapcndent’o e pioyees
beBe inciderita incl ade, but y not
oUowing:
t :
-------
—10
a. On Febrwary 23, 1991, one of Respondent’s employees was
kilLed and two of Reapondents employees were in)ured while
perforning cleaning operations of a Li aid peero1eu gas raLL car
containing soLid waste and/or hazardous waste at the Faci .lLty. On
the day of this incident, the truck vacuum system used to remove
debr3.a from rail cars was net operational. Because tha truck vacuum
system was inoperative, an employee used instead an electrLc pump
LrlSide the Liquid petroleum gas rail car causing an explosion which
killed the employee inside the rail car, injured an employee standing
on top of the rail car, and injured an employee who was overcome by
fumes whLla attempting to rescue th. employee inside the ear..
b. On May 8, 1990, employees welding on a. hydrogen tank caused
an explosion. Two (2) employees required e rgency medical
treatment.
c. on tober 29, 1990, an employee using an impact wrench on a
rail car holding e coes pressure cauaed an explosion. The employee
also required emergency medical treatment.
III . D!TERMXNhTION
Based on the information cited above and information contained in
the Mminiatrative Record, ŁPA has determined that Respondent’s past
arid present handling, storage, treatmeflt and/or disposal of solid
-saste and/or hazardous waste presents; an mi$ “ ent and e ib tantia1
eodanqermezlt to health and tko ox eat ‘jithin t weaning
of Section 7003(a) of RCRA, 42.n.S.C.S6973(a).
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—“-
I V. ORDER
Based upon the foregoLrlg and in order to abate or pre”ent any
Lm u.nent or su stantLal endanger eot to hw an k ealth and the
enuiroru tent, Respondent is hereby required, pursuant to Section 7003
of R .A, 42 U.S.C. S 6973, to cease and desiat, wLthirl twenty—four
(24) hours of receiving this Order, the rece. .pt, generat ,orz, and
u anngement of all aolid waste and hazardous waste at the Facility
including, without limitation, receiving, entering, eeptying,
cleaning, pai.nting and lining rail cars and trucks, until such ti.me
as the items enumerated below hate boon performed. Notwithstanding
the foregoing, Respondent shall perform such activities necessa.ry to
secure the solid raste and hazardous waste presently at the Facility
to prevent fires, explosions, or releases of solid waste and
hazardous waste. kt least three (3) business days prior to resuming
the activities prohibited herein, Respondent shall submit to EPA
wri.tteft notice of jtg intention to do so. In addition, before
Respondent may resume the acti.iLtios prohibited heroin, a duly
authorized representative of Respondent, who is capable of legaLly
binding Respondent, shall certify in writing to EPA that Respondent
has complied with this Order. - Such certification shall contain the
following language:
• ieertify under penalty of law that RailSerLëče c has
complied with all ‘of th& tomes ‘tand cend .tLons f that ,
certain Adwl.njgtraeive Order iss ed by the cnitaid’ Itatas
Env ronm nta1. Protection gency. pzrsuant to S ct .qp OO3 of
the Resouree Conservation and -R ove y kct, as
Docket No. 91—14—R. I am aw r that ‘there are significant
-------
—12—
penalties fo; eub eittinq false infor .atien, including the
possibUity of fine and inprisonntertt for’ knowing
violations. -
in the event that EPA deterxuines that such certification is false or
incorrect because the items below have sot been perfoc ed or have not
been performed to the satisfactLorl of EPA, EPA shall notify
Respondent of such determination whereupon Respondent shall cease and
desist, within twenty-four (24) hours ef receiving such notice, the
receipt, generation, and manag ent of all solid waste arid hazardous
waste at the Facility, includthg, without limitation, receiving,
entering, ampty .rtg, cleaning, painting and lining rail cars and
t cks, until such time as EPA determines that the it a enumerated
below have been performed to EPPsa satisfaction. Hotwithstaz iding the
foregoing, Respondent shall perform such activities necessary to
secure the solid waste and hazardous waste then currently at the
Facility to ‘prevent fires. explosions, or releases of solid waste and
hazardous waste.
Respondent is hereby ordered as follows!
1. Respondent shall provide adequate security for
the Facility to protect h” health and the envLroemest.
2. Respondent shall within seventy-two (72) hours of receiving
thLs Order post 5Lgna with the Legend. This Site May Present an
Iminent and Subatantia.l Endangerment to Human Health or the
Enviresment,, in conspicuous places at the entrances to the
Facility. The legend must be written in English and any ether
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—13—
‘it. . I
Language that ‘is the pr 1 tmary language of employees handling solid
/
and/or haz&rdo wastes. ‘T ieoe ai.gns oust be legible froi a distance
of at Least twenty-five ’(25) feet.
3. Respondent shall, within seventy-two (72) hours of receiving
this order post signs qith the legend. ‘Danger - Unauthorized
S...
Personnel. seep Out, at the entrance to each act .vo portion of the
‘7 L.} . ’i ’
Pacility in accorda.nce with 40 CFR Part 265. 14(c) and 401 KAR 35:020.
- . : r,:,
Section 5 (3)’ 1 The legendeust be written in English and any other
language that is the primary Language of employees handling sol.td
• ‘ r -’ .
and/or hazardcuewastes. . These si.gns must be Legible from a distance
ç• . :
. ‘ . • .. .
of at least twenty—five .(25) feet.
. !•l
4 Respondent shall within seventy—two (72) hours of receiving
this Order post signs with’ the Legend. No Smcking, at all, areas
•‘ . - . -
‘within the Facility where there is a hazard free ignitable or
• • -...
react2,ve was e’4.n 1 aceordancs with 40 ‘R Part 265.3,7(a) and 403. XAR
• : ‘4 . .
35:020, Section 8’(l). The legend must be written in English and any
j,•
• .4. , .
other language that La ’ the’ primary language of employees handling
solid and/or hazardous ‘Jasteg.’ These signs must be legible from a
I . • •
— . . ‘ ., . .. 1 •
distance of ‘at least twenty—f Lie (25) feet.
5.’ Respondent sb.tll imediately cepfine s king and open flame
o specifica.lly designated areas withi .n the Facility in accordance
with 40 crRPart265.17a and 401 KAR 35:020 Section 9 (1).
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—14—
6. Rnspondent shall provide clasSroom instruction by persons
trained in hazardous zaste managenent procedures to all Facility
personnel which satisfies the requirements of 40 CFR Part 265.16(a)
and (S) and 40]. 35:020, SeceLon 7 (1)(a) and (b). Respondent
shall stthejt to EPA in writing the name and qualifications of the
person(s) proposed to provide Such instruCtion.. If EPA disapproves
of the selection of such person(s). Respondent shall select and
stabeit to EPA the name and qualifications of a person that is
acceptable to EPA.
7. In addition, claasroc instruction shall be provided to all
personnel who participate l.a the cleaning, maintenance, painting and
lining of rail cars at the Facility to prevent the possibility of
fire, explosion, or any unplanned sudden cc non—sudden release of -
solid waste and/or haza.rdoua waste, -or worker contact with solid
waste and/er hazardous waste. Such instruction shall, at a minimum,
cover: ( ) proper procedures and necessary quipnent for accurately
testing confined space atmospheres to determine that these
atmospheres are not fl ””. ’1a, corrosive, explosive. tOxic, oxygen
deficient, or presenting any other human health ha2azd, (b) proper
pr cedures and necessary oquipeent for entering confined spaces and
(C) proper procedures and necessa.ry equip nt for working in confined
spaces. Respondent shall su it to EPA in writing the name and
qualifications of the person(s) proposed to provide
instruction. If EPA disapproves of the selection of such 1 person(s) 1
-------
Respondent hall4seiep and ’etthi it to EPA the Tta e and qualifications
of a persori t t is:acceptab1e to EPA.
•
• Seondent shall Fequip its Facility with appropriate
:- .
eçaipalerLt as ‘required by’40 CFR Part 265.32 and 401 KAR 35:030,
• - 1 • .t t 1 ‘! ;. . j
5ectio3 :. • •.
• - • .
9. Respon’ tshaLi also equip its Facility ‘ th appropriate
• :• ;•; j; i •. :.
equip ent-to respond to fires, explosions, or any u.riplannsd sudden o
,•i’ :
non—sudden e leases of.ao1id waate at the Facil.Lty.
• •• . r . •
10. Respondent baLl d costrate Lta atteept (8) to isake
arran 9 ensent 4th tocal*authoritjes in accordance with 40 C Part
;• • ••
265.37. arid 401 KAR35:030, Section 7.
•‘ 4; e.. -. .,
11. sh.a.U its contingency plan to include the
iteisS set- -paragraphs :6. 7, 0 and 9 above.
12.. Respondent sbal1 sth it’the” ende4 contingency plan as
• •: • ‘: :; .‘ - ‘ ,•. - - ‘ Ł
described in paragraph 2101 ŕbcvb to all boil police depaztenta. fire
j f 1 .:4Y :-I: - - -
departeents, - hespita1a and stat& an4 local eeergency response teses
• • •i l.l ’ U I •
that ay be ,called upon to provida cee:gericy services in accordance
• ..• • .
with 40 CF , ut;j2ss.53(b an4 4o1 KAR 35:040, Section 4 (2).
I ; . .. ‘1 l • .:.
: I. V e.l’ t , • • • -
identify,’ deicribe. quantify and locate all.
• . —
ha ardoug v L lity Ln accordance with 40 CPA Parts
• •
262.1l’a •36573 aM ‘401 3 .32:O1O , Section 2 and 35:050, Section
•
4 (2).:
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—16—
14. Respondent shall. inspect areas where containe are stored
1.
Looking for leaks and for deteriorations caused by corr i or other
factors in accordance with 40 CFR Part 265.174 and 401. 1 .AR 35 1so,
Sect .on 5.
L5. Respondent shall. docus.ent thspact .ons (perfortsed pursuant to
paragraph 13 above) in accorda.nce with 40 CFR Part 265.15(d) and 401
K.AR 35:020 Section 6 (4).
16. Respondent shall transfer hazardous wastes fr contai.nere
which axe leaking or not otherwise in good condition to conta.zners
which are in goo4 condition in accordance with 40 CrR Part 265.171
•? )‘
and 401 FAR 3S:180, Section 2.
17.. Respondent shall close all containeis that de net have lida
or bungs or ttat have lida which are unsecured in accordance with 40
CFR Part 265473(a) and 401 FAR 35:180 , Section 4 (1).
•j. • .
18. Respondent shall create aisle space in all container
is.. • , I
‘f • 4•
eanag ent areas whLch will allow the unobstructed eov Qnt of
personnel, fire protection equipaent, ap i . 11 control equipoent, and
decontamination equi ent in an e rgency in accordance with 40 CP’R
Part 265.35:and 401 FAR 35:030, Section 6.
V. VIOLATIONS OF TRIS ORDER
In tha veot 1 Respoadant willfully violates or fails or refuses to
: ‘.j,, .
comply with therequir aenta of this Order. Respondent eay be s thject
• •j •tt •
to an act io ‘i United States Di trict court for enforc ent of this
‘4
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—17—
Order and the izupoeition of fines of up to FIV8 THOUSAND (S5,000)
DOLLARS for each day of noncompliance in accordance with Section
7003(b) of RCRA, 42 U.S.C. S 6973.
VI. RESERV !ION 0? RIGETS -
Notwithstanding compliance with the terms of this Order,
Respondent is not released from liability, if any,. for any actions
beyond the terms of this Order taken by EPA respecting the Facility.
EPA reserves the right to take any response and/or enforceaent et ion
pursuant to RCRA and the Comprehensive Environmental Response.
Compensation and Liability Act of 1980 (CER A) and/or any available
legal authority, including the right to seek injunctive e1ief, cost
recovery, monetary penalties, and punitive damages for any violation
of Law, this 7003 Order, or the 3008(h) Order, ineluding any rights
EPA may have with regard to other responsible parties.
VII • Om i APPLICA .E LAWS
L1 actions required to be taken pursuant to this Order shall be
undertaken in accordance with the requirements of all applicable
local, state, and federal law . and regulations unless an ex ption
from such Lr nts i. specifically provided herein.
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-18—
VIII. RELATIONSRIP BETWEEN T t NITED STATES AND RESPONDENT
Iaither the United States tier any agency thereof ghall be liable
for any iz juries or damages to persona or property resulting from
acts or omissions of Respondent, its employees, agents, servants,
tz,. gtees, successors, or assigns, or of any persons, including but
net Limited to firse, corporations, contractors, or consultants,
engaged in carrying out activities pursuant to this Order, nor shall
the United States or any agency thereof be held out as a party to any
activities tindeztaketi pursuant to this Order.
All submittais and nniificati.ons to EPA pursuant to this Order
shall be ade to John !. Dickinson, Chief, Waste Compliance Section,
RC&A and Federal Facilities Branch, Waste sa.ftag t Division, United
States Environmental Protection Agency Region IV, 34S Cřurtla.nd
Street, N.E., Atlanta, Georgia 30365.
This Order shall apply to and be binding upon Respondent. its
agents, employees, BUCCOOBOZ 5, assigns, and contractors.
IX. EFFECTIVE DATE
This Order is effective upon receipt. All times for performance
of response activities shall be calculated from that date.
X..’ OPPORTUNITY TO CO IT
You say before 5:00 p.m. (ES.?.), April 5, 1991, request a
conference to discuss this Order and its applicabilIty to you. Such
a conference may be held at Region I v ’s offi eB in Atlanta, Georgia
-------
APR-23-97 0843 FROM•RCRA COMPLfANCE SECTION ID’404 S62 8S86 PACE 21’
-19—
or by telephone. At any Conference hald pursua.nt to your request.
you tay appear in person, and you may be represented by an attorney
or other representative for the purpose of presenting 4ny objections,
defenses, or contentions regarding this Order. Xf you desire such a
conference, please contact Wi11ja B. Bush, r., Assistant Regional
Coun e1, at (404) 347—2641.
BL V . PLEMZ fl ADVXS T A P3 J ST P A waI BS
NOT 6Z 3 T p pTTwa J VJ)J - -
4/;/q/
Date - Donald i. Guinyard -
Acting Director
Waat. aaag nt Division
United Statai Enviren ental
PrřtectLo . Aqency
-------
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the
foregoing Administrative Order issued pursuant to Section 7003
of the Resource Conservation a d Recovery Act, as amended,
Docket No. 91-14—R to be served upon Rail Services, Inc. by
personally delivering a copy of said Order to
at the Rail. Services, Inc. facility located in Calvert City
Kentucky on O . QA.J.3 1 /9c7f at _ 4’D P11 CIT .
Date
Date
c -
Doy P. Britcain, Chief
WestJunit
Waste Compliance Section.
U.S. Environmental Protection
Agency - Region IV
345 Courtland Street, NE
Atlanta, Georgia 30365
(404) 347—7603
,g7 1 j,j
Witness
?PZL17 C P 1o,c f,i Z or ,s
p, d’&#e.4 , ,é r 7 ,O i) 4 f o Pl( /
4’e7v? 1 tJc ’y ,C 12S,a2/ k y <
-------
-------
r-. r jc .. ‘ T’..r, L.F
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION II
x
IN ThE MATTER OF
TROPICAL FRUIT, S.E. (a/k/a
TROPICAL FRUIT, S. P.); : ADMINISTRATIVE ORDER
AVSHALOM LUBIN;
CESAR OTERO ACEVEDO; and
PEDRO TOLEDO GONZALEZ,
Respondents
Proceeding under Section 106(a) of : INDEX NO.
the Comprehensive Environmental II-CERCLP -97-030].
Response. Compensation, and Liability:
Act, as amended, 42 U.S.C. § 9606(a)
x
I. JURISDICTION
1. This Administrative Order (hereinafter, “Order”) is issued
to Tropical Fruit, S.E. (a/k/a Tropical Fruit, S.P.) (“Tropical
Fruit”), Avshalom Lubin, Cesar Otero Acevedo, and Pedro Toledo
Gonzalez (hereinafter, “Respondents”) and requires Respondents
to, among other things, immediately cease and desist from
spraying pesticides, fungicides and any other materials that
contain or are hazardous substances at their farm i.’i Guayanilla,
Puerto Rico (hereinafter, “Respondents farm” or the “farm”) in
such a manner that the pesticides, fungicides or other materials
may drift or otherwise migrate beyond the boundaries of
Respondents’ farm.
2. This Order is issued pursuant to the authority vested in the
President of the United States under Section 106(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act (“CERCLA”), 42 U.S.C. § 9606(a), which authority was
delegated to the Administrator of the United States Environmental
Protection Agency (“EPA”) on January 23, 1987, by Executive Order
No. 12580 (52 Federal Register 2926, January 29, 1937) and
further delegated to the EPA Regional Administrators by EPA
Delegation Nos. 14-14-A and 14-14-B.
3. EPA has notified the Puerto Rico Environmental Quality Board
(“EQB”) of this Order pursuant to Section 106(a) of CERCLA, 42
U.S.C. § 9606(a).
-------
II . PARTIES BOUND
4. This Order applies to and isbinding upon Respondents and
their successors and assigns. Any change in the ownership,
corporate, or partnership status of a Respondent, including, but
not limited to, any transfer of assets or real or personal
property, shall not alter the responsibilities of any of the
Respondents under this Order. Respondents are jointly and
severally responsible for carrying out all activities required by
this Order. Compliance or noncompliance by one or more
Respondent( ) with :any provision of this Order shall not excuse
or justify noncompliance by any other Respondents.
5. Respondents shall provide a copy of this Order to any
prospective owners, operators, lessees, or successors-in-interest
in the farm before a controlling interest in Respondents’ assets,
property rights, or stock is transferred, conveyed or assigned to
the prospective owner, operator, lessee or successor.
6. Not later than sixty (60) days. prior to any transfer,
conveyance or assignment by any Respondent of any real property
interest in any property included within the Respondents’ farm,
such Respondent shall submit a true and correct copy of the
applicable document(s) to EPA, and shall identify the transferee,
conveyee, or assignee by name, principal business address and
effective date of the transfer.
II. DEFINITIONS
7. Unless otherwise expressly provided herein, terms used in
this Order which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them
in CERCLA or its implementing regulations. Whenever terms listed
below are used in this Order, the following definitions shall
apply:
a. Daytt means a calendar day unless otherwise expressly
stated. “Working day” shall mean a day other than a
Saturday, Sunday, or Federal holiday. In computing any
period of time under this Order, where the last day
would fall on a Saturday, Sunday, or Federal Holiday,
the period shall run until the close of business on the
next working day.
b. “Hazardous substance” shall have the meaning set forth
at Section 101(14) of CERCLA, 42 U.S.C. 5 9601(14).
c. “Party” or “Parties” means the United States
Environmental Protection Agency and/or Respondents.
2
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: —-,i-.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
- -, - .j. -
8. Respondent Tropical Fruit’, S.E . is a partnership.
Respondents Avshalorn Lubin, Cesar’ Otero Acevedo, and Pedro Toledo
Gonzalez are partners of Tropical Fruit, S.E.
9. Respondents own and/or operate a farm consisting of
approximately. 1-,243 acres located at or near Rd. 335, Km. 5 in
the Rural Zone -of Boca in Gusyanilla, Puerto Rico. Respondents
grow, among other crops, bananas, mangoes and plantains at their
farm.
10. Respondents” crops, including Respondents’ mango trees, are
planted up to a fenceline which serves as the boundary between
Respondents’ farm and the residential community of oca. The
Yauco River runs along the Boca side of this fenceline, and the
community of Boca is located immediately beyond the river. The
community of Boca includes approximately 250 people living in
approximately 80 dwellings. Residential dwellings are as close
as 150 feet to the boundary of Respondents’ farm.
11. Respondents use a number of pesticides and/or fungicides at
their farm, including Supracide-2E, Captan 50, Malathion, and
Dithane F-45. Malathion and Captan are hazardous substances
within the meaning of Section 101(14) of CERCL A. Supracide-2E
contains methidathion, xylene and ethyl benzene, ea:h of which .s
a hazardous substance within the meaning of Section 101(14) of
CERCLA. Dithane F-45 contains ethylene bisdithiocarbamate ion,
which is a hazardous substance under Section 101(14) of CERCLA.
12. Respondents also use, among other chemicals, the fungicides
Kocide 101 and Wettable Sulfur at their farm.
13. Respondents apply pesticides, fungicides and other materials
at their farm using, among other methods, a high pressure sprayer
that is towed behind a tractor. Pesticides and fungicides are
sprayed throughout the farm, including on the crops growing
adjacent to Respondents’ fenceline and property boundary line.
14. The Puerto Rico Department of Agriculture (“PRDA”) has
detected Malathion at a concentration of 10.84 parts per million
(“ppm”) in soil collected from the property of a small business
(“Ebanisteria Rodriguez”) in oca located in close roXimity to
Respondents’ farm.
15. PRDA has detected methidathion at concentrations of less
than .10 ppm in two soil samples collected approximately twenty
feet outside the boundary of the 2-4-6 Section (La ‘Jva Sector) of
Respondents’ farm.
16. According to a June 24, 1996 inspection report, on May 21,
1996, PRDA Pesticides Inspector Jorge Maldonado Medina and
3
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Roberto Rivera Ve1é h EQBob é v d a high-pressure spraying
machine (a “S %art- Sprayer 1 ”) ;,operating at Respondents’ farm. As
Mr. Rivera.was (walking .a1ofl Road Nov 335 (at a point where the
road is very lose to RCSpondents. farm) during a time when the
Smart Sprayer was beingoperatčd, he:was hit by spray drift from
the Smart Sprayer.
17. According .to a July 29, 1996 inspection report, on July 16,
1996, PRDA pësticidés Inspector -Medina approached the fence
serving- as’-the; boundary between Soca:. and Respondents’ farm in
order to observe Respondents’ spraying operations. while walking
outside the boundary of Respondents’ property. Mr. Medina “felt
that..the sprayfdrift (fromRespQndents’ spraying unit] fell all
over my. body. . .
18. PRDA has obtained affidavits from Boca residents who claim
to have experienced health effects or problems that arose when
Respondents conducted spraying- operations at the farm. The
reported health effects or problems include skin rash,
respiratory problems, chest aches, eye irritation, fatigue,
headache and nausea. Several of the residents have complained of
odors coming from Respondents’ farm during times that Respondents
were cOnducting spraying operations, and others claim to have
been hit by the spray from material being applied at Respondents’
farm.
19. The Material Safety Data Sheet (“MSDS”) for Malathion
indicates that exposure to Malathion can cause, among other
symptoms, weakness, headache, tightness of chest, blurred vision,
non-reactive pinpoint pupils, excessive salivation, excessive
sweating, nausea, vomiting, diarrhea, and abdominal cramps.
20. The MSDS for Supracide-2E indicates that exposure to
Supracide-2E can result in, among other symptoms, headache,
dizziness, blurred vision, weakness, nausea, diarrhea, cramps,
uncontrollable muscle twitches, convulsions and coma. Contact
with eyes may cause irreversible eye injury. According to the
Handbook of Toxic and _ Hazardous Chemicals and Carcinogens (3rd
Ed. 1991), exposure to Supracide-2E can also cause death from
respiratory failure. -
21. On May 6, 1996, PRDA issued an administrative order to
Tropical Fruit, S.!., requiring that Tropical Fruit cease the use
of Captan 50,:Dithane F-45, Wettable Sulfur, and Kocide 101 on
mango trees because none of these substances are registered for
use on mangoes. Tropical Fruit continued to spray in violation
of the administrative order, and the Puerto Rico De artment of
Justice (“PRDOJ”) therefore filed a complaint with the Puerto
Rico Commonwealth Court seeking, inter alia , a temporary
restraining order (“TRO ) requiring Tropical Fruit to stop using
the four pesticides and/or fungicides on mangoes. The TRO was
granted on June 19, 1996.
4
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22. Tropical Fruit continued:tQ spray in violation of the TRO.
After the TRO.expiredpnJuly.9,,:1996, PRDOJ filed a motion in
the Commonwealth Court for a preliminary injunction (“P1”)
against Tropical Fruit.
23. The Commonwealth Court held a hearing to consider PRDOJ’s
motion for a P1- on November 14, 1996. On November 20, 1996, the
Court issued a Resolution ordering Tropical Fruit and Avshalorn
Lubin to, among’other things,- comply with all label requirements
for the use of “pesticides and other toxic substances” at the
Tropical Fruit farm, and to establish a 300-foot interior buffer
zone measured from the boundary of the farm property within which
Tropical Fruit would not operate a Smart Sprayer unit. The Court
ordered the parties to delineate the buffer zone on or before
November 29, 1996. and to notify the Court by December 10, 1996
as to whether the parties believe that the buffer zone is
effective to prevent pesticides and other toxic substances from
drifting beyond the boundaries of Respondents’ farm.
24. To date, he buffer zone has not been established because of
differences between PRDOJ, Tropical Fruit and Mr. Lubin with
regard to the location of the buffer zone. On December 2, 1996,
PRDOJ -filed a motion with the Commonwealth Court requesting.
among other things, that the Court modify its November 20, 1996
Resolution to require that the buffer zone be measured from
identifiable landmarks or, in the alternative, to require that
Tropical Fruit and Mr. Lubin produce a map of the farm that shows
the location of the farm boundaries from which the buffer zone
can be measured.
25. The Respondents’ farm and the property adjacent to the farm
onto which hazardous substances have been released constitute a
“facility” within the meaning of Section 101(9) of CERCLA, 42
U.S.C. § 9601(9).
26. Respondents are “persons” within the meaning of Section
101(21) of CERCLA, 42 U.S.C. § 9601(21).
27. The drift of hazardous substances including Malathion and
methidathion (contained in Supracide-2E) from Respondents’ farm
onto the adjacent land constitutes a “release” within the meaning
of Section 101(22) of CERCL L, 42 U.S.C. § 9601(22). In addition,
there is a threat of future releases of hazardous substances from
Respondents’ farm.
28. Respondents are the current owners and/or operators of a
facility from which there has been a release or threatened
release of a hazardous substance. Respondents also owned and/or
operated a facility during times that hazardous substances were
disposed of there. Respondents thus are responsible parties
within the meaning of Sections 107(a) (1) and (a) (2) of CERCLA, 42
U.S.C. § 9607(a) (1) and (a) (2)
S
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29. This Order ,-is necessary to prevent the continuing release
and haf rdous - substances from Respondents’
farm. P isi ui ńg thisOrddr ’riotwithstanding the November 20,
1996 Resolution issued by the Commonwealth Court, because of
Tropical Fruit’s violations of the TRO and because EPA believes
that the establishment of the 300-foot buffer zone required by
the Comm nw althCourt miy not, be sufficient to insure that none
of t1ie-pescici des:or fungicides . used at Respondents’ farm drift
or otherwise rnigrati beyond’ the’ boundaries of Respondents’ farm.
The requirements. bf this Order are in addition to the
requirethei’its :of the ,PRDA’sMay 6, 1996 administrative order and
the N ’ovčin er ’20r’1996Res’olution issued by the Commonwealth
Court. “
IV. DETERMINATIONS
30. The actual or threatened release of hazardous substances
from Respondents’ farm may present an imminent and substantial
endangerment to the public health, welfare, or the environment
within the meaning of” Section 106(a) of CERCLA, 42 U.S.C.
§ 9606 (a)
31. The actions required by this Order ar’e. necessary to protect
the public health or welfare or the environment, are in the
public interest, and are consistent with CERCLA and the National
Contingency Plan (“NCP’ t ), 40 CFR Part 300.
V. ORDER
32. Based upon the foregoing Findings of Fact, Conclusions of
Law, Determinations, and other information available to EPA, it
is hereby ordered that Respondents shall immediately cease and
desist from spraying Malathion, Supracide-2E, Captan 50, Dithane
F-45, and any other materials that contain or are hazardous
substances, at Respondents’ farm in such a manner that the
pesticides, fungicides or other materials may drift or otherwise
migrate beyond the boundaries of Respondents’ farm. Respondents
also shall comply with the requirements of this Order as
specified below. All activities specified below shall be
initiated and completed as soon as possible even though maximum
time periods for their completion are specified herein.
Proj ect Coordinator
33. Within five (5) days after the effective date of this Order,
Respondents shall select a Project Coordinator and submit the
proposed Project Coordinator’s name, address, telephone number,
and qualifications to EPA. The Project Coordinator shall be
responsible for overseeing the Respondents’ compliance with the
requirements of this Order. The Project Coordinator shall be
present at Respondents’ farm during all times that Malathion,
6
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Supracide-2E,.ca tan 50,pithaneF-45, and any other pesticides,
fungicidesc , r other 1 materia1s contai ing hazardous.. substances are
sprayed at th firm. Th ’ Project Cŕordinator shŕll have
technical expertise sufficient to adequately oversee Respondents’
compliance with all requirements of this Order. EPA retains the
right to disapprove of any Project Coordinator proposed by
Respondents. . if- EPA disapproves of a proposed Project
Coordinator, Respondents shall propose a different Project
Coordinator and shall notify EPA of that person’s name, address,
telephone: number, and qualifications within seven (7) days
following -EPA’s disapproval. Receipt by Respondents’ approved
Project Coordinator, of- any notice or communication from EPA
relating to this Order shall constitute receipt by Respondents.
Respondents may change their Project Coordinator, subject to
approval by EPA as set forth in this paragraph. Respondents
shall notify EPA at least seven (7) days before such a change is
made. The initial notification may be orally made but it shall
be promptly followed by a written notice.
Description of Work
34. Within thirty (30) days of the effective date of this Order,
Respon ents shall submit to EPA for review and approval a plan
(hereinafter, the “Plan”) which shall describe, in detail, how
Respondents will comply with this Order. The Plan shall identify
all pesticides, fungicides and other materials that contain
hazardous substances that may be sprayed at Respondents’ farm
after the effective date of this Order, and shall describe how
Respondents will spray or otherwise apply each such pesticide,
fungicide or other material that contains hazardous substances so
that those materials will not drift or otherwise migrate beyond
the boundaries of Respondents’ farm. With respect to each such
pesticide, fungicide and other material, the Plan shall identify:
a. how each pesticide, fungicide and other material will
be sprayed or otherwise applied, including, but not
limited to, the type of equipment that will be used to
spray or otherwise apply each pesticide, fungicide or
other material;
b. all wind and other weather conditions thafl must exist
in order for each pesticide, fungicide and other
material containing a hazardous substance to be sprayed
at Respondents’ farm;
c. the time(s) of year that each pesticide, fungicide and
other material containing a hazardous substance may be
sprayed; and
7
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EF 2 Oi C NT/Ci ui E,i 3? j J4
d. the ninimw&’ di i n fr’frt the farm’ s boundaries that
other materials will be
• • - . t ‘ ;
sprayed.
35. The Plan shall include a map’ of Respondents’ farm which
identifie the location(s) atthe farm where each pesticide,
fungicidä or other material containing a hazardous substance
may be sprayed.
36. Resp dents shall notsp ráy inypčsticide or fungicide at
thei fIrmin a ’ nanr er which is inconsistent with the
requirernčntč ón thé label’ fbr that pesticide or fungicide.
Similarly, with respect to materials that are not pesticides
ofüngicides,but whichcŕńtain hazardous substances and
which Respondents intend to spray or otherwise apply at
their farm, Respondents shall not spray or otherwise apply
auch materials in a manner which is inconsistent with the
manufacturer’s directions for use of each such substance.
The Plan shall include a photocopy of the label of each
pesticide and fungicide to be sprayed or otherwise applied
by Respondents, as well as copies of all manufacturers’
instructions that apply to the spraying or other application
o any other material containing a hazardous substance.
37. EPA will approve the Plan, in whole or in part, and/or will
require modifications thereto pursuant to paragraphs 44 through
46, below. Upon its approval by EPA, the Plan shall be deemed to
be incorporated into and shallbe an enforceable part of this
Order.
38. Immediately upon EPA’s approval of the Plan, any and all
spraying of pesticides, fungicides and other materials that
contain hazardous substances at Respondents’ farm shall be
conducted in conformance with the Plan (as well as any other
legal requirements which govern or relate to such spraying). If
EPA approves a portion of the Plan but finds the remainder
deficient, then EPA, at its discretion, may direct Respondents to
proceed with implementation of the approved portion of the Plan.
39. Before spraying any pesticides, fungicides or other
materials containing hazardous substances at their farm that have
riot previously been identified pursuant to paragraph 34, above,
Respondents must submit to EPA an amendment to the Plan which
provides all information required by paragraphs 34 through 36,
above, with respect to each such pesticide, fungicide and other
material, and must comply with all requirements of this Order
with respect to each such pesticide, fungicide and other
material. EPA will approve the amendment to the Plan, in whole
or in part, and/or will require modifications thereto pursuant to
paragraphs 44 through 46, below. Upon its approval by EPA, the
amendment shall be deemed to be incorporated into and shall be an
enforceable part of this Order.
8
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On-scene- Coordina gr; ‘ other Personnel, and
Môd [ i ă ii o’ EPA Approved Work Plan
40. All activities required of Respondents under the terms of
this Order shall be performed only by well-qualif led persons
possessing all necessary permits, licenses, and other authori-
zations required by federal, Commonwealth and local governments,
and all work conducted pursuant tó this Order shall be performed
in accordance with prevailing professional standards.
41. The current EPA On-Scene Coordinator (‘ 1 OSC”) for this matter
IS:
Luis Santos
On-Scene Coordinator
Enforcement and Superfund Branch
Caribbean Environmental Protection Division
U.S. Environmental Protection Agency
Centro Europa Building, Suite 417
1492 Ponce D c Leon Avenue, Stop 22
San Juan, PR 00907-4127
(787) 729-6951, Extension 235.
EPA will notify the Project Coordinator if EPA’s On-Scene
Coordinator should change.
42. EPA, including the OSC, will conduct oversight of the
implementation of this Order. The OSC shall have the authority
vested in an OSC by the NC?, including the authority to halt or
direct any activities required by this Order.
43. As appropriate during the course of implementation of
the actions required of Respondents pursuant to this Order,
Respondents or their consultants or contractors, acting through
the Project Coordinator, may confer with EPA concerning the
Order’s requirements. Based upon new circumstances or new
information not in the possession of EPA on the date of this
Order, the Project Coordinator may request, in writing, EPA
approval of modification(s) to the EPA-approved Plan. Only
modifications approved by EPA in writing shall be deemed
effective. Upon approval by EPA, such modifications shall be
deemed incorporated into this Order and shall be implemented by
Respondents.
Plans and Retorts Reauiririg EPA Approval
44. If EPA disapproves or otherwise requires any modifications
to the Plan, or any other report or item required to be submitted
to EPA for approval pursuant to this Order, Respondents shall
have fourteen (14) days from the receipt of notice of such
9
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disapproval or the raquired tj odifications to correct any
deficiencies and’ resubmit th P1an , ;ep9rt , or other written
document to PL ihorter or longer period
. ‘ r ‘Jr” “ -. - -
is specified” in the notice Any. not .ce of disapproval will
include Plan, report, or other item is
being disapprqved-.’ Responden:ts.,.shall address each of the
comments.and ”:resubmit the Plan,’ repoxt, or other item with the
above. At such time as
EPA detez nin s:. .t at t1 e ,?Lan repárt, or other item is
acceptable, E PA will transmit to Respondents a written statement
to that effect.
45. If the Plan or any other report or item required to be
submitted to EPA for approval-- pursuant to this Order is
disapproved by EPA, even after being resubmitted following
Respondents’ receipt of EPA’s comments on the initial submittal,
Respondents shall be deemed to be out of compliance with this
Order. If any resubmitted Plan 1 report, or other item, or
portion thereof, is disapproved by. EPA, EPA may again direct
Respondents to make the necessary modifications thereto, and/or
EPA may amend or develop the item(s) and recover the costs from
Respondents of doing so. Respondents shall implement any such
Plan or item(s) as amended or developed by EPA.
46. EPA shall be the final arbiter in any dispute regarding the
sufficiency or acceptability of all documents submitted and all
activities performed pursuant to this Order. EPA may modify
those documents and/or require the performance of additional work
unilaterally.
47. All plans, reports and other submittals required to be
submitted to EPA pursuant to this Order, upon approval by EPA,
shall be deemed to be incorporated into and an enforceable part
of this Order.
Reporting
48. During the implementation of this Order, Respondents shall,
on the first day of each month, provide a written progress report
to EPA which shall, among other things, (a) identify each
pesticide, fungicide and other material containing a hazardous
substance that was sprayed at Respondents’ farm during the
previous month; (b) describe how the pesticide, fungicide and
other material was sprayed in accordance with the EPA-approved
Plan; (C) state the volume of each pesticide, fungicide and other
material that was sprayed at the farm during the previous month;
(d) identify the date(s) and time(s) that each pesticide,
fungicide and other material was sprayed at the farm; Ce)
indicate where at the farm each pesticide, fungicide and other
material was sprayed; and (f) identify all spraying applications
of pesticides, fungicides and other materials containing
hazardous substances which are scheduled during the next month,
10
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including the date and time of each scheduled application, and
the location at the farm. where each pesticide, fungicide and
other material is scheduled to be sprayed.
49. The Plan and all.document su itted by Respondents to EPA
which purport to document Respondents’ compliance with the terms
of this Order shall be signed by a.; responsible official of
Tropical Fruit, S.E. or by the Project Coordinator who has been
delegated this responsibility by Respondents and whose
qualifications have been found by EPA to be acceptable pursuant
to paragraph 33 of this Order. For purposes of this paragraph, a
responsible official is an official who is in charge of a
principal business function.
50. The Plan and all other documents required to be submitted to
EPA under this Order shall be sent to the following addressees:
1 co v (via certified _ mail) to :
Luis Santos
On- Scene Coordinator
Enforcement and Superfund Branch
Caribbean Environmental Protection Division
U.S. Environmental Protection Agency
Centro Europa Building, Suite 417
1492 Pence De Leon Avenue, Stop 22
San Juan, PR 00907-4127
3. co v to :
Chief, Pesticides and Toxic Substances Branch
Division of Enforcement and Compliance Assistance
U. S. Environmental Protection Agency
2890 Woodbridge Avenue, Bldg. 209 (MS-240)
Edison, NJ 08837
Attention: Leader, Pesticides Team
1 co v to :
Chief, New York/Caribbean Superfund Branch
Of if ice of Regional Counsel
United States Environmental Protection Agency
290 Broadway, 17th Floor
New York, New York 10007
Attention: Tropical Fruit Attorney
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rr1 a t c iT’ ri ELi ’
1 cODV tO :
— -
Genaro Torres
Director, Environmental Emergency Area
puér€ô Rica- Envirońmental Quality Board
O. Box11488
Santürce, Puerto;Rico 00910
1 copy to :
Arline R. de Gonzalez
Director, ‘Agricultural Laboratory
Commonwealth of Puerto Rico
Department of Agriculture
P.O. Box lO1 3
Santurce, Puerto Rico 00908
Qversi ht
51. During the implementation of the requirements of this Order,
Respondents shall be available for such conferences with EPA and
inspections by EPA or its authorized representatives as EPA may
determine are necessary to adequately oversee Respondents’
compliance with this Order, including inspections at Respondents’
farm.
52. Respondents and their employees, agents, contractor(s) and
consultant(s) shall cooperate with EPA in its efforts to oversee
Respondents’ compliance with this Order.
Community Relations
53. Respondents shall cooperate with EPA in providing
information to the public with regard to Respondents’ compliance
with this Order.
Access to _ R operty and Information
54. EPA, PRDA, EQS and their designated representatives,
including, but not limited to. employees, agents, contractor(s)
and consultant(s) thereof, shall be permitted to observe
Respondents’ spraying of pesticides, fungicides and other
materials containing hazardous substances at Respondents’ farm in
order to ensure Respondents’ compliance with this Order.
Respondents shall at all times permit EPA, PRDA, EQB and their
designated representatives full access to and freedom of movement
at the farm for purposes of inspecting or observing Respondents’
implementation of this Order, verifying the information submitted
to EPA by Respondents, or for any other purpose EPA determines to
be reasonably related to EPA oversight of the implementation of
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this Order.
55. Jpon.reqüčát ,Račporidezitŕ shah provide EPA, PRDA and EQS
with accesg f.b 4 afl’ńcord*ańd documentation related to the
spraying of pesticides, fi .thgicides and other materials containing
hazardous substances at Respondents’ farm, the release of
pesticides, fungicides or other hazardous substances from
Respondents’ farm, and the actionscondücted pursuant to this
Order except.for,.those items, if any, subject to the attorney-
client or iork product privilege. Nothing herein shall preclude
Respondents fromasserting a business confidentiahity claim
pursuant to 40 C.F.R. Part 2, Subpart B. All data, information
and records created, maintained, or received by Respondents or
their contractor(s) or consultant(s) in connection with
Respondents’ implementation of this Order including, but not
limited to, contractual documents, invoices, receipts, work
orders and disposal records shall, without delay, be made
available to EPA upon request, subject to the same privileges
specified above in this paragraph. EPA shall be permitted to
copy all such documents.
56. Notwithstanding any other provision of this Order, EPA
hereby retains all of its information gathering, access, and
inspection authority under CERCLA, the Solid Waste Disposal Act
(42 U.S.C. § 6901, seaj, the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. § 136, ae ) , and any other
applicable statute or regulations
Record Retention. Documentation, Availability of Information
57. with respect to each spraying of pesticides, fungicides or
other materials containing hazardous substances at espondents’
farm, Respondents shall preserve all documents and information
relating to Respondents’ implementation of the requirements of
this Order for six years after each spraying of a pesticide,
fungicide or other material containing a hazardous substance. At
the end of the six year period, Respondents shall notify EPA at
least thirty (30) days before any such document or information is
destroyed that such documents and information are available for
inspection. Upon request, Respondents shall provide EPA with the
originals or copies of such documents and information.
58. All documents submitted by Respondents to EPA in the course
of implementing this Order shall be available to the public
unless identified as confidential by Respondents pursuant to 40
CFR Part 2, Subpart B, and determined by EPA to merit treatment
as confidential business information in accordance with
applicable law. In addition, EPA may release all such documents
to PRDA and EQB, and PRDA and EQB may make those documents
available to the public unless Respondents conforms with
applicable Commonwealth law and regulations regarding
confidentiality. Respondents shall not assert a claim of
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1- ? E r r 2 C C ir’Ci ’ . .? tc 7 . j4 r. 5’
confidentiality regarding any monitoring or hydrogeologic data,
any information specifjed unde . Section 104(e) (7) (F) of CERCLA,
ih ineering data relating to
Respondents’
Com 1jpnce With Other Laws
59. All actions required pursuant to this Order shall be
performed in accordance with all applicable Commonwealth and
federal laws and reguIá ions. This Order is not, nor shall it be
construed to be; a pa mit issuid pursuant to any federal or
Commonwealth statute or regulation.
Ernez Qen y Response and Notification of Releases
60. Upon the occurrence of any event at Respondents’ farm which,
pursuant to Section 103 of CERCLA, 42 U.S.C. g 9603, requires
reporting to the National Response Center ((800) 424-8802],
Respondents also shall immediately orally notify the Chief of the
Response and Prevention Branch of the Emergency and Remedial
Response Division of 2PA, Region II, at (908) 321-6656, or the
EPA Region II Emergency 24-hour Hot. Line at (908) 548-8730, of
the incident or conditions at Respondents’ farm. Respondents
shall also submit a written report to EPA within seven (7) days
after the onset of such an event 8 setting forth the events that
occurred and the measures taken or to be taken to mitigate any
release or endangerment caused or threatened by the release and
to prevent the reoccurrence of such a release. The reporting
requirements of this paragraph are in addition to, and not in
lieu of, the reporting requirements under CERCLA Section 103, 42
U.S.C. § 9603, and Section 304 of the Emergency Planning and
Community Right-To-Know Act of 1986, 42 U.S.C. § 11004.
6].. In the event of any action or occurrence during Respondents’
performance of the requirements of this Order which causes or
threatens to cause a release of a hazardous substance or which
may present an immediate threat to public health or welfare or
the environment, Respondents shall immediately take all
appropriate action to prevent, abate, or minimize the threat and
shall immediately notify EPA as provided in the preceding
paragraph. In the event that EPA determj.nes that (a) the
activities performed pursuant to this Order, (b) significant
changes in conditions at Respondents’ farm, or Cc) emergency
circumstances occurring at Respondents’ farm pose a threat to
human health or the environment, EPA may direct Respondents to
stop further implementation of any actions pursuant to this Order
or to take other and further actions reasonably necessary to
abate the threat.
62. Nothing in the preceding paragraph shall be deemed to limit
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CFr rc LJr . . r 5? 5J 4 r. ’1
any authority of the United States to take, direct, or order all
appropriate action- to.pr te ct human health and•the environment or
to prevent, abate, or minimize an actual. or threatened release of
hazardous substances on, at, or frôm Respondents’ farm.
Delav in Pexf rmance
63. Any delay in implementation of this Order that, in EPA’s
judgment, is not properly just:ified by Respondents under the
terms of paragraph 64 below, shall be considered a violation of
this Order. Any delay in performance of this Order shall not
affect Respondents’ obligations to perform all obl .igations fully
under the terms and conditions of this Order.
64. Respondents shall notify EPA of any delay or anticipated
delay in performing any requirement of this Order. Such
notification shall be made by telephone to EPA’s OSC within
forty-eight (48) hours after Respondents first knew or should
have known that a delay might occur. Respondents shall adopt all
reasonable measures to avoid or minimize any such delay. Within
five (5) business days after notifying EPA by telephone,
Respondents shall provide written notification fully describing
the nature of the delay, any justification for the delay, any
reason why Respondents should not be held strictly accountable
for failing to comply with any relevant requirements of this
Order, the measures planned and taken to minimize the delay, arid
a schedule for implementing the measures that have been or will
be taken to mitigate the effect of the delay. Increased cost or
expense associated with the implementation of the activities
called for in this Order is not a justification for any delay i
performance.
Communications
65. The Plan and any other report or item required to be
submitted to EPA for approval pursuant to this Order, as well as
any modifications of this Order, must be approved in writing by
the Chief of the Pesticides and Toxic Substances Branch, Division
of Enforcement and Compliance Assurance, EPA Region II.
66. No informal advice, guidance, suggestion, or comment by EPA
regarding reports, plans, specifications, schedules, or any other
writing submitted by the Respondents shall relieve Respondents of
their obligation to obtain such formal approval as may be
required by this Order and to comply with all requirements of
this Order unless it is modified in writing.
is
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Enforcemexit abcL Reservation of Riahts
- . -
67. provision of this Order, failure
of Respezidex €s to comply with any provision of this Order may
subject Respondents to civil penalties of up to twenty-five
thousand dollars ($25,000) per violation per day, as provided in
Section 106(b) (1) of CERCL , 42 U.S.C. § 9606(b) (1). Respondents
may also e subject to pun1tive damages in an amount at least
equal to ‘and not more tha i, thieé times the amount of any costs
incurred by the United,S€atü,as,.a result of such failure or
refusal € comply with this Order, as provided in Section
lO7( )(3) ’of cERcLA;42 U.S.C. § 9607(c)(3). Should Respondents
fail or refuse to comply with this Order or any portion thereof,
EPA may seek judicial enforcement of this Order pursuant to
Section 106 of CERCL , 42 U.S.C. § 9606.
68. Nothing herein shall limit the power and authority of EPA or
the United States to take, direct, or order all actions necessary
to protect public health, welfare, or the environment or to
prevent, abate, or minimize an actual or threatened release of
hazardous substances, pollutants or contaminants, or hazardous or
solid aste on, at, or from Respondents’ farm. Further, nothing
herein shall prevent EPA from seeking legal or equitable relief
to enforce the terms of this Order, from taking other legal or
equitable action as it deems appropriate, or from requiring the
Respondents in the future to perform additional activities
pursuant to CERCLA or any other applicable law. EPA reserves the
right to bring an action against Respondents under Section 107 of
CERCIJA, 42 U.S.C. § 9607, for recovery of any response costs
incurred by the United States related to this Order or
Respondents’ farm.
Other Claims
69. By issuance of this Order, the United States and EPA assume
no liability for injuries or damages to persons or property
resulting from any acts or omissions of Respondents or
Respondents’ employees, agents, contractors, or consultants in
carrying out any action or activity pursuant to this Order. The
United States or EPA shall not be held out as or deemed a party
to any contract entered into by the Respondents or their
employees, agents, successors, representatives, assigns,
contractors, or consultants in carrying out actions pursuant to
this Order.
70. Nothing in this Order constitutes or shall be construed as a
satisfaction of or release from any claim or cause of action
against the Respondents or any person not a party to this Order
for any liability that Respondents or other persons may have
under CERCLA, other statutes, or the common law, including but
not limited to any claims of the United States for injunctive
16
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relief, costs, damages, and interest under Sections 106(a) and
107 of CERCLA, 42 U.S.C. 9606(a) and 9607. Nothing herein
shall constit 1te a finding that!Respondents are the only
responsibl.e’parties with respect to the release and threatened
release of hazardous substances at arid from Respondents’ farm.
71. Nothing in this Order shall affect any right, claim,
interest, defense, or cause of action of any party hereto with
respect to third parties.
72. Nothing in this Order shall be construed to constitute
preauthorization under Section 111(a) (2) of CERCLA, 42 U.S.C.
§ 9611(aH2), and 40 CFR § 300.700(d).
Opportunity to Confer. Effective Date
73. This Order shall be effective within four days of receipt by
Respondents, unless a conference is timely requested pursuant to
paragraph 74, below. If such conference is timely requested,
this Order shall become effective one (1) day following the date
the conference is held, unless the effective date is modified by
EPA. All times for performance of ordered activities shall be
calculated from this effective date.
74. Respondents may, within three days after receipt of this
Order, request a conference with EPA to discuss this Order. If
requested, the conference shall occur on the next business day
following Respondents’ request for a conference. This conference
may occur as a teleconference.
75. The purpose and scope of the conference shall be limited to
issues involving the implementation of this Order and the extent
to which Respondents intend to comply with this Order. This
conference is not an evidentiary hearing, and does not constitu:e
a proceeding to challenge this Order. It does not give
Respondents a right to seek review of this Order or to seek
resolution of potential liability, and no official stenographic
record of the conference will be made. At any conference held
pursuant to Respondents’ request, Respondents may appear in
person or by an attorney or other representative.
76. A request for a conference must be made by telephone to Paul
Simon, Esq., Section Chief, New York/Caribbean Superfund Branch,
Office of Regional Counsel, EPA Region II, telephone (212) 637-
3172. Written confirmation of Respondents’ request for a
teleconference must be sent by facsimile that day to Paul Simon
at (212) 637-3104, and to Luis Santos at (7B7) 729-7747.
17
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Not ice of- Intentf to _ Comply
77. Respondents shall prQvide,.., not .ater than three (3) days
after th -effectivedateof this Ord er, written notice to EPA
stating whether Respondents will comply with the terms of this
Order. Any Respondent that does not unequivocally commit to
comply with this Order shall be deemed to have violated this
Order and to have failed or refused o comply with this Order.
Respondents’ written notice shall describe, using facts that
exist on or prior to the effective dare of this Order, any
“sufficient cause” defenses asserted by Respondents under
Sections 106(b):.arid 107(c)(3);.ofCERCLA, 42 U.S.C. § 9606(b) and
9607 Cc) (3). The absence of a. response by EPA to the notice
required by this paragraph shall not be deemed to be an
acceptance of Respondents’ assertions.
U. S. ENVIRONMENTAL PROTECTION AGENCY
I i .I o!cc
JEANNE’M. WIj4 / Date o Is uance
Regional min rator (
U.S. Environmental Protection Agency
Region II
18
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;.‘: :z —
, _ se::..:: : . :::s::t:--€ :c:
:ite: n .
ENVIROK? NTAL PROTECTION AGEN: ,
REGION IX
IN THE MATTER OF:
tIPPER LAX! POMO WATEP.
ASSOCIATION ) FINDING OF :NtW M :
a Upper Lake Hardisty SU3ST IAL END GZP
.Com unity Water Systern TO THE HEALTH OF PERSONS
PWS ID NO. 0605025 ) AND
PROCEEDINGS UNDER Sec:ion ) RG!NCY ADMIN:STRAT:vz OR
1431(a) (1) of the SAFE
DRINKING WATER A , 42 U.S.C.
300i(a) (1) ) Docket No. PWs—EAQ— —0:2
The following Findings are made and Order issued under the
authority vested in the Administrator of the United States
Environmental Protection Agency (“EPA”) by Section 1431(a) (1) of
the Safe Drinking Water Act (“SDWA”)’, 42 U.S.C. 5300i(a)(1). The
authority to take these actions has been duly redelegated to the
w ersigned Chief, Drinking Water and Groundwater Protectiort-
branch (formerly Drinking Water Branch), Water Management
Division, Region IX.
FINDINGS
1. The Upper lake Pomo Water kssociation (9YLPWA ” or
aRespondentN) is a nonprofit association formed, inter ella , for
the purpose of ovning, operating and maintaining facilities ob-
tained thx ough the Sanitation Facilities Act, including the -
public vater system b ow7i as the Upper Lake Hardisty; Comunity
Water System ( ULHCWS”). On July 1, 1985, the Indian sa1th
Service of.th. u s. DepartzentofR.a1th ric.si.n-
tered into a Tr aferAgreementyith Re lake
Rancheria(fo milly knovn I: the Uppér
of Upper LakeRancherja.of.California-( ,andthe
Upper Iake Pomo. Association (j’ULPA”) , vhSr.by the Indian Health
Service transferred to Rancheria and ULPA certain community
facilities- constructed by it pursuant to the Sanitation
1
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Dc:xe - .
Facilities Act (P th. L. 86121, S.c. 7). and ULPJ.
thereupon transferred such facilities to the ULPWA. The Ranch-
eria, an Indian Tribal Entity r.coqniz.d and eligible to :e:e ve
services from the United States Bureau of Indian Affairs, ac r
through the Chairperson of the Upper Lake Tribal Council (the
Tribal Councilw) and is an lndian Tribes within the asaninc of
Section 1401(14) of the Act, 42 U.S.C. § 300f(14). The ULPA,
which acts through its President, is a nonprof it associatIon
formed for the purpose of holding and managing tribal lands and
the water supply system serving such lands. The Rules and
Regulations of the TJLPWA were est bl ehed under the tribt..
authority of the TJLPA and require the management Committee of
tJLPWA to manage the ULPWA in accordance with the general p’ans
and business policies approved by the members of the ULPA.
2. Respondent owns and operates, and Delvin Molder operates, -
ULHCWS, a public water system on the Hardisty Ranch portion of
the Rancheria, which is located northwest of the tow-n of Upper
Lake, Lake County, California, approximately one mile north of
State Highway 20 en Elk Mountain Road. Hardisty Ranch is the
northernmost tract of the Rancheria. -
3. Respondent provides pipód, ater.to -the public for human con-
sumption and regularly serves 16 service connections and a
population of approximately7O persons.
4. Respondent is a person” within the meaning of §l..Ol(l2) of
the SDWA and 40 C.F.R. §141.2 and a supplier of water” as tha:
term is defined in §1401(5) of the SDWA and 40 C.F.R. §141.2.
Respondent owns and operates a public water system” as defined
by §1401(4) of the SDWA and 40 C.F.R. §141.2 and a Ncommunity
water system” as defined by 40 C.F.R. §141.2.
5. Respondent’. public water system utilizes a ground water
source. - -
6. Respondent’s public vater ystem is :sub óct to.the ;Sife
Drinking Watar Act, 42, V.S.C.j300f St seq., andthiNationa l
Primary Drinking Water Regulŕtions,’t40 C.y.rR: P t .X4’1
gated pursuant- therete inc1u ng/ Ł ter a cimti con-
taminant levels at 40 C.F.R 5 141 14
and public notifióitión re i rnents at 40 C 7:R1S’ .141.31 -and
141.32.
2
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Docke: n:.
. Respondent’5 publi: water system is located on ia n
with respect to w i :ki the Stats of California does .not -have tne
necessary jurisdiction or its jurisdiction is in question.
Respondent’s pu.bl : vats: system is therefore subject to di e—-
regulation by EPA pursuant to 40 C.F.R. f l42. (b). The State
authorities have not acted to protect the health of persons
served by Respondent’s public water system because the State
authorities lack jurisdiction over Respondent. Both the Ran:-
eria and the Tribal Council, the local authorities, have fai1e
to act to protect the health of person; served by the ubl1c
water system.
S. EPA has received information that levels of coliform bacte :j .
in excess of the maximum contaminant level (MCL) permitted by la
(see 40 C.F.R. §141.14) have been detected in seven f the twelve
required monthly samples collected in 198 pursuant to 40 C.F.R.
141.2i(b). Individual samples have indicated coliform levels as
high as 90 times the NCL. Respondent violated 40 C.F.R. §l4l.14
by exceeding the NCL for coliform bacteria for at least the fol-
1o ing 6 (six) quarterly compliance periodsi ,October, l9 7
through December, :1987; April, 1 i9&8 thIo gh” June,.l9g8; nua y,
1989 through .March -l989; April, 4989’ ough June, 1989; July,
1989 through September, -1989;, nd October,- 3 , 989. through Dece e:,
1989 In add tion, EPA has 1 rece1yed informat ’ion’that!t1gh t 1eve1
of fecal colifc per 100 ml,
the highest amount detčctablé b -theanalytiçăl est:method
used-—have been detected in e qral ater ”samplü .taken fró the
water system. Suppleiental simp,ling perfŕ med :in Dece ber 1 B5
by the V.5. Indian Eealth Service (IHS) has &ndicated.th t the
coliform contamination is, wide p ad hr’o hoütihe distribution
system. EPA has determined th’at the preserice of colifo±ms ánd.
in particular, fecal coliforms in drinkingi a ér, ‘is a *seriäus
health concern. The presence .óf theis bacteria ind cati:that the
water may be contaminated with organismsç that present a wn
potential for ŕausing waterborne dissasás
9. Water system sanitary iuz sy4nIp.ct ’ic
November 30, : 1987 and D.cembér.8 ; 1988 and
by EPA and I RS on ,Novsmbr
Feb ary 15, 1990, rSVS
public vater system. cr BaL__, .
that the iystem’icdefici(nciiá, ’
quate iiaintsnancá of, and failure to.contir
chlorination system; lack of routine upkeep
the distribution system; failure , to;corr ct,
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• ç .z. . : ‘. --
the distribuiOn system; lack of routine upkee &r1
of the welihead and pu phouse; and a deterioratIng a d nsuff:.-
ciently protected water storage tank; continu, to exist and have
not ben corrected. - -
lo. The presenc. of these contaminants in Respondent’s publi:
water system, i.e., coliform greatly in excess of the applicable
MCL, and high levels of fecal coliform, present an imminent a.r
substantial endangerment to the health of persons because the
water supplied by Respondent is sub ect to immediate use and con-
sumption by Upper Lake Rardisty residents and their guests. The
endangerment posed is substantial because of the known potential
for waterborne disease these contaminants present. EPA believes
that based on the lack of proper operation and maintenance and
the physical deficiencies of the system, the violations of the
bacteriological MCL and the presence óf fecal coliform in the
water supply will continue unless action is taken.
11. 40 C.F.R. S14l.21(d) requires thatvhin coliform bacteria jrr
a single sample exceed certain.1evels (four per 100 milliliters
in the Membrane Filter Test, -or three or more 10 milliliter pcr-
tions of a five-tube Multipl e be F rmentátion test) that at
least two consecutlve dailyc ck iamp1e i:b t e aken and- nalyzed
from the same sampling p p t aj d th di ioi al chec)c amples. .
be taken daily, until two k samples show t ’leä
than one olifor babtčria , Oiit1y tubes . .
12. Respondent vio1ati 40 ç. R. 41 2,1(d).by failing to take
required check samples f ra l,ea thi f l1owing monthi: AprLl
1986, December 1987,’ 1 Tun..e 19S , 7ariuary 298%, May 1989, -June
1989, August l989, .October1989 andNoiit Cr 1989.
13. 40 C.F.R. l41.36 (1988) Cpntaihs.hsPt b11c notjfieitjon.
requirements that public vatersystems wireTre uired to.eEun-
til April 28, 1989. 40 C.T.R 1341. - ‘
water who own or operate c
z otice to both the public and
system fails to comply -
level established 1in J
provided to :water
fails to comply vi
in Subpart C orfai1s
Note: Fi.nd3.ngs if &, 12 are the findings
of an Ubstanti fn4aflg e t .
refer strictly to iolatiôflSafl W9?. Fb! more suitab ,.. -
Section 1414 order.
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n:. ws-z. :- :-:::
i . Respondent violated 40 C.F.R. l41.36 by fa1lin t: notify
the public and water system users that it failsd to comply vi .
the provisions of 4 C.F.R. Part 141, Subpart B (X ) , as se:
forth ira paragraph 8.
Eased on the foregoing, I hereby find that contaminants are
present in or are likely-to enter Respondent’s public water sy-
tem and may present an imminent and substantIal endangerment t
the health of persons. State authorities do not have jurisdic-
tion to act to protect the health of such persons an the local
authorities have failed to act.
Pursuant to the authority granted to EPA by Se:tion 1 4 3 1 (a) (1) of
the SDWA, I MIP !!Y OR )ER:
POTIC! OP T ! IOW ? -O COMPLY
1. within five (5) business days of the effe::ive date of
re, this Order, Respondent shall inform EPA, in writing, of its in-
tention to comply, end a general statement of the methods it will
use to comply, with each oftheelements of this Order.
BLIC YOTI7ICATIOW
2. Within ten (10) days of the effective date of this or-
der, and every thirty (30) days thereafter, Respondent shall ad-
vise all customers of the past year’. history of MCL-violations
and of the presence of fecal coliform in the water supply, and
shall mail or persotially deliver a copy of the enclosed public
notification, without addition. or deletions, to every customer’s
billing address. A certification that thi . task has been com-
pleted shall be sent to EPA within on. (1) day of mailing or
delivery, as the case may be. - -
11CR0, IOLOGICAL COXPLIAJCI
3. Respondent shall comp 1yvjthin thirty (30) day. fro the
effective - dat. of-this Orde r and at -all tim.s .ther.after with
the requirements ‘of 40C.F.R. .*1414by,ae.tingtbePICLI set.
for cólifórm bŕcteria. .:-•-If% .thil caz o b. -achisved,an alternate
source ‘of ‘a ovŕd water :fdr hüiantcqńsumption must -b. provided
within thirty: (30) days-of.thSs ff.ctivs datS of thisOrder to
all customers served by the systemin sufficient quantity for all
.5
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:i e: ? ..
quired y the A:: or fails t: comply b:th a.:. a.;_ :z. e es : n :
procedure. Suon notice shall meet all the requiremen:s :
:.F.R. f14 ..32. Copies of all such notices shall be submitted ::
the EPA at the a dress listed in paragraph 10 of this 0 er.
*The revised public notification requirements, codified a
40 c.F.R. 5141.32, became effective on April 28, 1989. 52
Fed. Re;. 41546 ( Ct. 28, 1987). The publi: notification re-
quirements at 40 C.7.R. 5141.32 superseded and replaced the
public notification requirements at 40 C.F.R. c141..36.
ALL 0T !R R2O IR2 ’rS
9. Immediately upon receipt of this Order and at all times
thereafter Respondent shall comply with all other appli:able re-
quirements of the SDWA and the regulations promulgated the:e nde:
(40 C.F.R. Parts 141 and 142).
ADDR2BS!8 FOR BVBXTT?XLE
10. Al]. submittal; required by this Order shall be mailed
to the following address:
U.S. EPA, Region IX
Water Management Division
1235 Mission Street
San Francisco, CA 94103
Attn: Barry Pollock W-6—1
(PWS—EAO—90—013)
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GENERAL PROVISIONS
1. This Order does not constitute a waiver, suspens .on or
modification of the rsquire ents of 40 C.F.R. 12.41.14, 1141.21,
1141.31, 1141.32 or of the Safe Drinking Water Act and any of the
regulations promulgated thereunder, which reain in full force
and effect. Issuance of this Order is not an election by EPA to
forego any civil or cri in&l action otherwise authorized under
the SDWA.
2. Violation of any te of this Order, or failure or
refusal to comply with this Order, ay subject Respondent to
civil penalty of up to S5,000 per day per violation for each sucn
day in which a violation occurs as assessed by an appropriate
Un ed Sta es distric cou t under Section 1431(b) o’ the SDWA,
42 J.S.C. 13001(b).
3. This Order shall be effective upon receipt. This Order
shall remain in effect until there have been nine (9) consecutive
months of compliance with the ‘Order; the Safe Drinking Water Act
and all the regulations p:o u1 t’ed thereunder.
Dated this 2-’ day of February, 1990.
. .I
Wi11ia M. Thurston, Acting Chief
Drinking Water and Groundwater
Protection Branch
U.S. EPA, Region IX
9
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. per Lake ct: watEr Associa::c
J per Laxe ardisy Co muni:y Water Łv ze: -.
E ergenCY Ad inist:ative Order Dc: : N . p s _ -c::
: certify that the foregoing ergency A inis:ra:ive O: e:
sent this day in tne following manner to the below e rezses:
o:i;inal by Certifie Mai.
P 841 396 339
Return Receipt Re ieste
Cocy by Certified Xai
P 841 396 285
Copy by Regular Mail
Copy by Regular Mail
Dated: 2/y1 /Z! c
Mr. Delvin Holder
Upper Lake Pomo Water ksso: :icn
P03 405
Upper lake, CA 95485
Mrs. Phyllis Harden
Aotthg Tribal Vjce—C airte: :
Upper I a 3ar of : ians
POE 245272
Sacramento, CA 95 24
Mr. Kirk 000ley
Indian Health Ser-vic
:Hs Ukiah Field Office
169 Mason Street, Suite 400
Ukiah, CA 95482
Ms I A edesta
.PH / OIP.
- 450 Golden Gate Avenue, Room 7425
P03 36003
• 94102—3446
c.fl’
BarryF. Pollock
Environmental Engineer
Region 9
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P03 4O
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Envir3r en: i ;i-e :
Region 9
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ATTAC CE)r Ł
xode. Ee:: .c. . :. Ad inistr t -t : t: ;:c
CERTIFIED MAIL P 6&6 7D . 343
R!TURN RXCEI P R! QUESTED
Lynn II. Stin.on
?iodssto Toyota
4401 licHenry Avenue —
- ..$od.sto CA 95356
Pa: Adinistrativs Order
Docka No. IC A0-CA91-oz
Dear Kr. Stinson:
The U. 5. Znviron enta]. Protection A;ency 1 i.re y issue; t
Modesto. Toyot tri. enclosed Ad tinhatrative Order pursuant to
Section 1431 c t.be 8&tt rinkirig Water Act, 42 C.Sue .
3001(a). -
It you iava any questions regarding this matter, please
contact sit c r L.ilis ‘Arth’Hi ing, compliance and Znforc. ent
Officer, at (415) 744-1835 or bay. your attorney contact I4urie
cermish, Assistant Regionalcounsal, at (415) 744—1344.
C nc.rsly,
, 6t.v Pard Jc, Chief
‘‘Drinking Water and Ground Water
Protection branch
Enclosure
cc: CA Depar msnt of lisalth services, otfiosof Drin)cing Water.
CA Department, of - K.a lth Ssrvicss, HasardouB Waste
Materials Division -
Central Valley RsgionalWatsr Quality Contror o rd
Stanisleus County,
e Rc $ht Pap a’
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: r A:...
—%
a- -•.
: et i .
.•,
Nodesto TOyOt - FINDING OF I) IMz i j:
4401 flcflsnry AVe SU STMTIA .TJ
Modesto, CA 95356 C TH Ei soN
Proceedings under Sectic
1431(a) (1) of the Safe
Drin cing Watsr Act, ADMxNI TRAT:vE
42 U.S.C. 5 300i(a)(1) )
___________________________________________________________________________ )
STATDTORY AUT ORITY
The following Findings are wade and order Issued under e
authority vested in the Administrator of the U.S. Environ en: i
Protection Agency (“EPA”) by 5 1431(a) of the Safe Driri ing Wa: r
Act (“the Act”), 42 U.S.C. 5 300i(a). The authority to ta) e
these actions h i seen auly roae1egate to ths .ndarsigne Chief,
Drinking Water and oundWit’.3tó áŕtion ranch,Wats Nanage-
went Division, Region IX.
DESCRIPTION OF RESPONDENT
1. Xodsito Toyota (“Respondent”), is a corporatioa .or-
gai ized under the 1a’. o ca.i ór nii, is authorized to do busi-
fleas in the State of Califârńiaaiidis therefore a person within
the weaning of 5 1401(12) of the Act, 42 U.S.C. 5 300f(12).
2. Respondent owns and opsratssja ..pticiystimwei l (“the
well”), used for disposal of utot,iy..sis1e tidvaste
at 4401 flCRCfl Aye,
systew well is defined a’ Ci sl V
40 C.Y.R. 44 5(•) (9) 146.3.
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Me.-:- :: c, : ? e;_: : ; :. .L!
We.... . M . 9. LPJ.
pect.ee and :c oi sam .u 1ui e : .. ; : t s e-:
v. 1 : . ..
The resi 1t c th sazple r.n .y&eL rtvae ...e . .eve. .
tstrac 1oroethylsne 70,000 times the Maximum Con:a inan: L v 1s
(MCLs) of 5 ugh and xylene. 310,000 time, the MCI 5 c 10 5/i.
The HCLs for tstrachlorosthyi.n. and xylsnes are codifie a:
Pad. Req. 3526 (7anuay 30, 1991). Tstrachlo:oethylene an
cylenes are contaminants as defined i the SDWA i O1(6).
42 U.S.C. 300f(6 ).
5. High levels of tat iloroethylene and xylenes In r!n z-
ing water have been linked to adverse health ffectc:
a . T.trachlorosthylene is categorized as a
human carcinogen. EPA has determined that a con-
centration of tstrachloro.thylene o 0.7 ug/1 In
drinking water corresponds to a 10 excess
lifetime cancer ris) estimate.
b. High level. of xylsns . can cause damage to a
person’s liver, kidney and nervous system. The
EPA Health Advisory tar xyl.n.v is 10 mg/i.
6. The presence of other contaminants in addition to those
reported is a reasonable possibility. Tfle,Very high levels or
yle ,s .g tamination in the .ampl s intsrters.withthianaiysis
at other contaminants that are likely tobe,pçessnt. - Because the
sample. were heavily contaminated, high sample dilutions were
necessary.
2
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‘‘ rie
e.re - :ar. - :e vju - :
- ee E. ir... v • ‘
p r .y-aor Sd sil ftfld fine— —me . az v .t ’ .5flEE-..
of course •ar and gravei. This maxes so1 i permeable az - e .l z
antsd fiuids ro migrate a upparmost Unde:;ro
o ce of D:ihking Water (USDW)
8. The City of Modsito relies solely on ground water for
±ts drinking warer supplies. The uppermost TJSDW ranges in depthE
between 30 to 600 feet below ground surface. Due to & pumping
deprsssio that has existed since 1952, ground water flows from
all sides toward the center of the City of Modesto, except south
of the Tuolor.ne River where it flows tro the unconfined aquifer
toward the river.
9. At least three water supply veils are located within a
one-mile radius of the Respondent’s well. These water supply
wells rang. in d.pth from 110 to 500 feet. All three draw ground
water from the uppermost USDW.
10. The aquifer utilized by the water supply wells contains
less than 10, 0 mg/i TDS and is utilized as a ource of drinking
water. This aquifer is a TJSDW within the meaning of regulations
promulgated pursuant to tt SDWA at 40 C.F.R. U 144.3 and 146.3.
12. Based upon the data received and analyses by EPA’s
laboratory and to*ico].ogivt, EPA fii s that contaminanti:ŕrs
likç y t6 W present in a tISDW that may present in iinent and
substantial endangerment to the health of persona.
3
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. E?h i s naulted with the Qr
Health Service;, Surveillance and Ento:cement Ss ; Cj o
Department c Health Service., California Office c Dr}thç’
Water; Central Valley California R.g enal Water ccntr:
Board; and with Stanialeus County, Xazar ou5 Waste ete:ials
Division to conir the co e nesg of the information and to ae-
certain the actions euch authorities are or will be ta)1n with
regard to the Respondent’s activities.
1.3. No govern .nta1 action has b.sn taken to date to
protect the health at persona from ccnt minants that
to be present in a USDW.
1.4. The Drinking Water and Ground Water ProtectIon Branch
Chief therefore rind, that the actions described below are
auther zed under Seot on 1.43j of: s 5pWA, 42 U.S.C. f300i, arid
are necessary in order to protect the health of persons.
15. Based upon the foregoing facts and findings, takIng
into account ths imminent and substantial endangerment to the
health of persons and under etuthorityot Section 1431. of the
DWA , 42 U.S.C. S300i, I hersby.order compliance with the follow-
ing provisjene! -
•C!! .X)t CT!ON
16 • To prevent th. continu ed angsxment-’ of VSDWs and to
protect the h.elth of persons .RSsppflde2 t shall :‘
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*
ae.s -:. c: - :: —. •.
.y . o .G.... L V S. -
the am into the’v€.:.
b. provide EPA with written fi Io
hours o the effective data of thig Cirde:, tha
the .njections specified in paragraph 16.a. have
ceased (See Paragraph 30).
17. Within thirty (30) days of the effective date of thIE
Order, Respondent shall submit for EPA’s approval and upcn ap-
proval shall implement a Work Plan covering each of the foUowir.;
elements of the Order.
18. If EPA disapproves the Respondent’s Wor) Plan reç Lred
by paragraph 17, the Raspon int ‘ ia1iiubmit a new Wor) Plan In-
corporating ZPA’s. commente within tsr (Ib) days
of receiving notice that the Work P1an isunacceptable.
19. Upon approval by. EPA the Work Plan shall be de’ med In-
corporated into this Order as jf fu i1y ‘Bit forth herein.
TEXPORUT CLO8URZ
20. IdsntifL . ’s locations of al1’drain., 1 nss,
S.
su ps, and i.ptio -systems at;thifŕáility
21. Outline a plan fortaking;reprsssatiVea pisaifrom
th 1i urdana sludge, ph i O 1 4 -t sdr41 - ines,
5UmpB and
dea rjbed in 40 C. T R Pa Sam-
pling Methods”. Samples shall be aflalysed ‘by-a
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p:0V5. L b tJ e. L_E . . L::;I
with the msth cr the xic rac i : : ac -n
dure (TCLP) J 4C C.T.P . Part 261 i ppen i men s . June.
1990. Copisi of all sampling results shill be sent t !P .
22. The results of the sample analyses shall deter 1ne it
method of disposal for the liquid and sludge in the dains dre i-
lines, eumps, and the septic tank. If analyses of samples from
either the liquid or sludge show that the contents are RCBA haz-
ardous vests, then the Respondent shall dispose of the hazardou&
waste in accordance with Federal, Stats and local laws including,
but not limited to following the requirements of 40 C.F.R. Part
262, using a licensed hauler operating in accordance with 40
C. .R. Part 263 and transporting the waste to an approved RCRA
treatment, storage or disposal facility authorized under 40
C.1.R. Parts 264 or 265. It analyses of the samples from either
the liquid or sludge show that the contents are nonhazardous
waste, then the Respondent shall dispose of the waste in accor-
dance with Federal, State and local law.
23. Describe the removal of the contents from the drains,
drain lines, sumps and septic tank and the appropriate disposal
methods to be used based on the results of the sample analyses.
The Respondent is ultimately respo ib1s for proper disposal,pf
affwastea, and should caçef jl2y review all arrangements for dis-
posal to ensure compliance with Federal, Stats and local law.
6
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:.. : e t : .
e :e t ‘e... en how the dr nE dra .Uie -
5 5 C washe , i.ied, and per nefl y :: r’-
nec ed with cleaninç the raini an & r llnes st a__ be. p ;e :.
of in ac rd n e with Federal, Btate and lo:e. . laws.
25. Describe how the septic tank contents will be re ove
and disposed of properly. The septic tank may cont±nUe to be
used for sanitary vast, only.
Tb!2ITITICATION MID C1C .R.PiCTERIZ TTON OP NEARBY WA?ER B PPLY ‘!LLg
26. Deterrnine the location and operating status of all
public and privat, water supply veils located vithin a one rile
radius of Respondent’s injection well. The Work Plan shall
provid, for, notifying the public via one of the fol-
lowing methods that the Respondent is inventorying all water
supply veils within a cne.mile radius of the Respondent’s well:
(1) publishing notice ea seven consecutive days in a local
newspaper of general circulation, (2) mailing notices via cer-
tified mail to all holder. ‘ct title to real property located
within one mile of RespOndent’s well., or (3) other reasonable
means of notifying such title holders as apprrved by EPA.
Respondent’s notices shall request owners or operators of suCh
wells to inform EPA and the Respondent of-the existence of such
wells. Respondent ahali:commencs’ irculating’public notice of
- - -.
the well inv.ntory withi tan (10) days of receiving EPA’S writ-
ten approval of the Work Plan. - -
7
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. : .ne . .r. fo: e&Ln: e:E : .e. .i.€.
Wa Sr suppl ’ W.. .ls iden: fisd purBuan: ; p epr
VO t±1e organ : compounds and total metall The ‘a:e: E pF
sampling plan sfle.ll include but not be lim te provisions :::
(1) çuartsrly sampling of all water supply wells co encin;
within thirty (30) days of receiving EPA’s v itten app:ove..l o
the Wor)c Plan, (2) complianc, with Stats and lo;e.l agency and. lo-
cal water supply rsquirsmsnts for sampling and analytlng well
water, (3) wall sampling msthods, and (4) analytical methods
be applied t the samples. In developing the quarterly se . ple
plan, Respon 1t řhall refer to EPA Methods 502.1, 502.2, 503.:.,
524.1 and 524.2 in “Methods for the Dster inetion of OrganIc Cc —
pounds in Drln)d.flg Water”, .ORD Publication., ,.cERI, .EPA/6004-
8/039, Decer r 198$ aM EPA Method 200 5.rLea .in “Methods of
Chemical Ansl y.iI of Water and Wastes”, PA600/4 79—O2O, March
1983. Quart ly sampling shall continue untjl such time that EPA
notifies Re p ndent in writing that sampling may be discontInued.
Copies of all 3ampling results shall be sent to EPA.
XON I Y RZPORTB
28. Respondent shall submit monthly. reports to EPA
documenting activities puformed during the previous month pur-
suant to this Order.’ RSpórt ghall)’ds.cribe;,and.provide the .data
fr any sample c ll6c ion, sample analysis, water level measure-
ment, ength.sring or geologic analysis or. any, other activity xe-
latsU to the performance a Z this Cider. Thee. monthly reports
are due on the second Tuesday of each month.
8
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‘ - V : ‘r i
.... raai. ..e; .:..E :s . --
..—— —— —-
‘ j add:SSE,..
Steve Pardieck, Chief -
Drinking Water and Ground te: !re. :
Water Management -Division
U.S. Environmental otecti A en Re i n : .
Mawthorns St. (W-6—2,
Ban Prancj.co, C& 94105
0. All reports required to be submitted to EPA pursuant ::
this Order shell be accompanied by the followinç statement g
y a responsible corporate officer of the R.spofld.nt
“I certify under penalty oz law that this do u enten ai .
e ta hmants were prepared under my direction or supervision
in accordance with a system des nod to aseura tflat
qualified personnel gather and evaluate the information sub-
nutted. eased Qn my inquiry of the persons dLr.ctly rasp n-
sible for gathering the information, I certify that the in-
formation is, to thebest of my knowledge and belief, true,
accurate, and comp1ste, - :I;aa aware that there are 5i9
nificant pena1tiO tor submitting false : 0rmati0j 1
in; the possibilitypf fins ;and’imprisonmerit for knowing
violation..”
32. Where this O specitieg that a matter,ieto e sub’
-- • .;‘ -tr -i? -
mitted to EPA for its r vió i and approval, unless otherwili
specifically provided, the following provisions apply:’
a. EPA shall notify the Respondent n writin as to
• 1 •.:z,
whether EPA approves or disapproves the submittal.
--
b. If the sukui ttal isdiiapproved, 3 EPA shall Bpec fy
in writing the rsa.oni r,,th..diwapproval,’-and
Respondent shall, .fithin ten (1O)4d ays op rece1pt
.•--•- - -.-- - -• -•• - L’, _
of
addr•s sach;deficie cy id.ntLfl! by EPA by
modify nthBT b ittl]..
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T E p:: ..E_ r e: E- : & ...•
fld .7 upon the Re 5p nden. c er . e :-t &€-
suc esscrs and assigns. Notice o this Order sha
any successors in interest prIor t transfar o the.
‘ 5 operatior. Ac’on o nact or o’ aiw perso s, —--
tors , employees, agents, or corpora:ions actIng undcr,
through or or the Respondent, shall not excuse any faIlure
Respondent to fully perform it; obligations under thIs Order.
33. This Ordsr doss not constitute a waive:, suspension
modification of the requirements of any federal statute, regule-
tion, or condition of any permit issued thereunder, including the
requirement. of the SDWA and accompanying regulations. Is .uan e
of this Order is not an election by EPA to forgo any cIvil or any
criminal action otherwise authorized under the SDWA.
34. This Order doe otconstjtute.a release of all Claime
respecting all conditions of operation or closure/post-closure of
the veils, nor does it necessarily establish all actions that may
be necessary to respond to conditions or otherwise close the
wells in the event of conditions indicating the need for further
investigation, including a feasibility study, or other response
action.
35. Notwithsta.nding compliance with th. term. of this Or-
der, EPA is not precluded from ta tng any action authorized by
law, including but not limited to the issuance of additional
administrative orders, and/or the initiation of judicial actions,
against Respondent. EPA expressly reserves the right to enforce
this Order through appropriate proceedings.
10
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::.- :- :, :• r t
v’ pen& v
v c.L t :; fl.....flUCE p uc :
.ii S W ‘ _.E. . Ł : .
o: o jsgj ns th O: 5 &fl
of Ce1jfc jg ‘ p ç : r .e :
re p n e : v..i p.na1 y of u t S2 ,OO
per day pursu r.: :: Ł 23 o the SDWA, 42 U.S.C. 300h—Z.
c: €r E a:: bt e tivc -e tip v te;p-
dent.
Dated this 1.1 of e 19E.
I _______
Stsvs ?ardieck ..Chief
//) ‘ Drinkin5 Water and Ground Water Protection Branch
V u.s. nviron enta1 ProtectIon Agency, Reçion IX
1].
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€.. Łe::;: :..:. s::a :.. :: .E: pr z-:
v:. - 1 u :eci.ila:e: :: ::E
RE! D P X T
s r. RY ?BIS L Z.
do Ma ae 3lack
St. Mary. tar.a 59417
.e: : . z ±
•— .‘er c:
of
A e cv j-
e Safe j - -o
42 .S.. Sec i 30c’:(a)
D r St. Mare n:er :ises, Inc.: -
- -
The ? i.nistrator of the i nta1 P ecti i Acencv (the
‘ i.r 4 st tor) i.s in e0& t of infortiation 1 ,a a ‘rtaznir .a.-’ is o-eser-
a .ib1 .ic .ter svst in St. Mary, brr.ana ai-ń that. the r ar .nar t
ray present rierrt a ! subetantial er .danger nt to the health f
persons in the area. Under the authority granted in Section 1431 of the
Safe ‘icL.- Water Act (th- Act) 42 U.S.C. Seo-_ion 300i(a), the
Astator, t r recei t of such infor ation as that c*. -z1ir d a cve,
r av t e such ac ons and issue such 0R as av be r ces sari to ctec
the health of ersor .s o are or’ nay be userS of such u Li: water
co.a. r. .jnc the
Benzene is a z r ant as defined in the Act and a pr-. .ncipe.1
eit of c asoline. It has been detected in tn natt a.11v large quantities
in a blic er systen in the int diate vicinity of y r .tderr nd
.soLi.ne storaae tanks. On the besis of infor ation a’i,â.ilab].e to us, • -
have reason to believe that
tan’t; th ä those o . ued ar coerated by you nay cause of ttis ber e.e
infiltraticri. Acrdjncly, the enclosed O is issued ur er the
above cited authority.
Any person willfully violates or fa.ils or refuses to crply with
any O D issued n der the a ve cited authority nay, in an action brc*içnt
in the a , . jate United States district . x-t to enforce such 0t t_ , be
fi’t sar 1lars ($5,000.00) for each day in .ttich suon violation
rs r fa.ilure to itinues.
-------
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S.nzere_y
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- -c 77-’-- - -
/ 4 .x çbds r .. rec r
Wa r a t iv.sizr
Re .cr v::
c: 1 ,±eet
c/o Mr. P-ill.i . ?. v,
P.O. Sax 649
5?47
State cf r. r 1 a
Water Qua2.itv Bu
C. ell i1d.thc
Eele.’,a, 5%20
k’i’N: Steve Pier
±.n War e11. D ect r
r .tana coe . r.s Off i e
A e rr.ai ectc i A ericv -
Fe era1 Of fi e 1 96
301Sc. ?a.x
He1ena, fcr 59626-002
Alan rr.ssey, Att ney
U.S. v Tr ?tect. . er.cv
4OlMStreet, .
20460
Na Wtr - -
U. S. vjr xrent. 1 P tecti : ethv
or -Ts e t;s4 - -
2046
-------
:N : STA rEE
PROTE:::::
:N . r::
ST. kFY rE ?P.IEES, N. :R :Y k iSTPAT”E
Setic i4 i of : Safe
42 .5.C. Seotion 3OOi
The fcii: o F :rcs Fa: e ade a-. f t-....!
o :z ante -
Seot...: 142 Ca) of : e S fe D inkiri Water .a:t (the
Act), 42 U.S.. Sec:ion 3OOi(a), .to the A n .nistrato:
of the United States E vi:on tenta’1. Proteotien A en:v
(he- ’-a e: “!?A”). This author -y as been delecatef
-
to the .reo::: of the Water Management D .vision,
e on v:::.
FI INGS OF FACT
1. St. Mary Enter ises, Incorporated (apriva;e
n-I n corporation) wis and operates a business i
St. Mary, Montana which includes, but is not limited to
several gasoline stations. -
2. St. Mary is in Glacier County, Montana,
the Blackfeet Reservation...
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- :__r . E a_ :
- _a5:_..
-. Me . v : f nese :aruzs a:e : :a:e
. s Bee: 3ar:en, wr.i:r j : ._s’_ eas cf ::;-::e
C:ee’. which :. s C th - sotith ucr,. e a: .
E. The f cf wate: i e a:e . cf
:_v: e :eek :s e ie: .v from eas: :c ‘est.
:- s Bee: a: ”r. .s a pu 1 : wate: s e—
:. e ear.: : cf Se::i i 1431(4) cf : e Safe
:c: Wa e: .k:., 42 U.S.C. Sec:ith 300f(4.
K ’s Bee: en is located i edia-ey
:ad..er cf the asc2.ine tanks in question.
S. The analysis of sarnples.taken f:o t t e we -
se:v:n K s Beer Gar ien revealed hj h leves cf - zene.
Sa o .e cate en:ene c:e::a:::n -
November 16, 1983 0.72 mc,’
Fe:: ary 24, 1984 3.6 tg/:
9. Ser. ene s a ccn:a inar.: wit ’ the ean .n of
Se icn 1401(6) cf the At :, 42U.S.C. Section 300f(6),
and a principal c ponent--of gasoline. h.e ?A
0ffic ci Drinkinc Water has issued a’heal fff , c. ;
advisor, or ben:ene o 0.23 mg/i fo:
and 0.07 g/l for long term exposure. Expps r O:
benzene has seen closely linked to leukemia ihuxa 8 .
-------
- suspe: e: :age :a - s: :e.nc ..-
j f a : :a.:.E of :s ..:-
cenera .s of affe:.ed cenes aria :h:omosorne - and
ri . . .s:n ffectinc the :oce s of :e . z.v .s:on.
enzene can a± e:: the cen .ral nervous system anf cauze
respiratory failure,. circulatory collaose. and at nith
cses. death. T e oxicitY Cf en ene may z.e fiuen:e:
by inte:act...: .ith c lorinated hyrocarbons. For
axi u p:c:: .cn of huan •nealth from the po:ent:a.
cc nogeni: effects due to exposure of ben:ene, the
ambient water cc entration should be zero. E As
Water Quality Criteria docu ent.for benzené-s j és that
under cer:a n conditions, a-concentra iŕn-óf bénze e of
0.6 mg/l would be expected to result-in an increase of
one additional case of cancer per one million people.
10. The State of Montana -has taken no action
:-u matte: because it lacks jurisdictior. over
these facilities on the Elackfeet Reservat .cr..
11. The 3lackfeet eservation Tribal Council, as the
— 4.
ccai- .werning authority has not taken action on this
matter.
DETE MINATION
On the basis of the-FINDINGS OF FACT recited above 1
EPA has reason to believe: that the handling, and. storage of
gasoline on St. Mary Enterprises’ próperty.haVe.g efl rise
to conditions which may preient: inur&inent and s bstantial
endangerment to the health of persons; -
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- --
wa 2 ys:e a :e ..L:
E:.
and that ame .o:a:icn of the s.t.. a:jon :a 5€
v ent:fv: the gasc.ine tanks thL: a:e .r.
:na: a tian :a oe developed to :ain arid :.ean
c at or. f t wel.s su .:n the n :i:
svs:ens. Aith u PA believes : .- at :ne uo—c:a ient : -‘cs
a “ i° orinzioal source of th.s a jn :icn, nv of
the tanks owned and coerated by B:. Mary En:ero::ses
be z:o, :o:s to e :amina- .’n.
Pursuant to Section 1 431(a.) of the Safe Dr:nkin
Water Act, 42 U.S.C. Section 300(j)(a), ? esocndent,
St. ary Enterprises is hereby Ordered t : e the
followino actions:
I. Ir ediate1y make--:ange tents with a p:ofessicn .
tank testirig-co pany .to have all gasoline tanks and
associated disoersiric lines coerated by St. Mary
nterprises, in the St.
in accordance with National Fi: Protection 1 Assp.ci icn
. ; - :
standard 329—1983, Underground Leakage of Fla a 1e ;and
Combustible Licuids, and
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a:::ur : : e ± fao: : :
: - SE
e te erature -zt
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-e Ve e f :a e c a.
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:ff:e . -4 — 44, :ef::e :- .
—— - e - ——— - - - -—
EPA a:: - --
v::_ e :a. Protection Acen:v
ontana C era : . .ons Office
edera. 3ff:ce S :l inc, rawer 1 9
30! Sr :-. Park
eic a, cn :ana 59626—O02
A::en::c: W J .l:a E.
the :es._.:s :f :es::’r : : in :we v-f:,..
o fs of . :s ac : a1. rece ot or notice of ts en :z.
2. event shall any of t e a:ove
o :e: ::e— :e ::n;ie:e later than th:::-; C 3
af .er :-e effec::ve da:e Cf this O:z e:.
Zf±ec:: e Da:e: 1 ’çJ( ,< .7 j 7 ’ 13
/
/___ Ii) ‘ - ‘ ‘ 7/ ’
/ ,—__/ !a ’Do s , D3.rector
Wa - er Management Division
Region VIII
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UNITED STATES ENVIRONNENTAL PROTECTION AGENCY
REGION VII
726 MINNESOTA AVENEJE
KANSAS CITY, KANSAS 66101
IN THE.MATTER OF:
SHALLOW WATER REFINERY ) Docket No. VII-97-CAA-120
Scott City, Kansas
CLEAN AIR ACT SECTION 303
- ) EMERGENCY ORDER
Carl and Jean Stiffler,
d/b/a Sputhwest Wrecking Co.,
Respondents
Proceeding under Section 303 of
the Clean Air Act,
42 U.S.C. § 7603 -
The Regional Administrator for Region VII of the tInitec
States Environmental Protection Agency makes the following
findings of fact, conclusions of law and issues the following
Order:
I. JURISDICTION AND GENERAL PROVISIONS
1. This Clean Air Act Emergency Order (Order) is issued by
the Regional Administrator of the United States Environmental
Protection Agency, (EPA) Region VII, pursuant to the authority
vested in the Administrator of EPA by Section 303 of the Clean
Air Act, (CAA) 42 U.S.C. § 7603. The Administrator of EPA
delegated the CAA authority to issue such orders to the Regional
Administrators for EPA, including the Regional Administrator of
EPA, Region VII.
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2. -This Order is issuea to’Carl and Jean Stif fler d/b/a
Southwest Wrecking Company, 907 Jeffersçn, Scott ‘City, Kansas
3. Se tion 303 of the CA I 42 U.S.C. §7603,;-pro\rides .in
part, t1 at upon receipt of evidence that a pollution source or
combination of sources is presenting an imminent and substa nt’ia].
endangerment -to public health’or we Lfare or the ‘environment and
after consultation with appropriate State- and local authorities
to confirm the accuracy of the information on which the action
proposed to be taken is based, the Administrator may issue such
orders asinay be necessary to protectpublic health or welfare or
the environment.
4. The egional Administrator for Region Vu, EPA has
determined that the emission of the air pollutant asbestos from
the Shallow Water Refinery is presenting an imminent and
substantial endangerment to public health or welfare or the
environment.’
5. This Order prohibits all reclamation and demolition by’
the Respondents at the Shallow Water Refinery in order to abate
• an imminent and substantial endangerment to public health or
welfare or the environment.
6. - EPA has consulted with the Kansas Department of “Health
and the Environment to confirm the accuracy o the infQrmation on
which this’action is based.
- ‘ Issuance of this O der- is necessary to assure rompt’
protectionof the public health or welfare or the environment of
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Scott City, Kansas and the surrounding area and it is not
practicable to wait for the commencement of a civil action in
United States District Court to assure prompt protection.
II. PARTIES BOUND
8. This Order applies to and is binding uppn Respondents
and their successors and assigns. Any ch nge in ownership,
partnership or corporate status of Respondents including, but not
limited to, any transfer of assets or real or personal property
shall in no way alter Respondents’ responsibilities under this
Order. Respondents shall provide a copy of this Order to any
subsequent owners -or successors thereof before ownership rights
or stock or asset6 are transferred.
9. Not later than thirty (30) days prior to any transfer by
Respondents of any interest in property at the Shallow Water
Refinery, Respondents shall notify EPA of the proposed transfer.
Not later than five (5) days after such’transfer, Respondents
shall submit the transfer documentsto EPA.
III. FINDINGS OF FACT
10. Respondents are “persons” under Section 302(e) of the
CAA, 42 U.S.C. § 7602(e). Respondents are doing business as
“Southwest Wrecking Company”, 907 Jefferson, Scott City, Kansas
Respondent Jean Stiffler is the owner of the-property where the
Shallow Water Refinery is located.
1l Respondents are currently conducting demolition
-.3—
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activi ties’at the Shallow,Water Refinery, located about.two miles
south of’ the city of Shallow Water,. Kansas on Highway 83 (the
Fability) . These activi ties includ the demolition of friable
‘asbe tos material as defined by 40 C.F.R. § 61.141.
12. on May’ 2,8,, 1997 two employees of the Kansas Department
of Health and the Environment’ (KDHE)’ inspected the Shallow Water
Refinery, to’ determine whether Respondents were cbmplying wit h the
cAA ‘and the implementing federal regulations, 40 C.F.’R. Part 61,
/
‘Subpart M,’as wellas Kansas asbestos regulations. During,this
inspection, the KDHE employees took, a video of the Facility,
interviewed Respondents and took- samples of asbestos cQntaining
insulation.
13. The Shallow Water Refineryi an old oil refinery that
is n longer in use. Respondents’are dismantling the ref iner ’
and reclaiming the metal components. Many of these’ components
are covered with insulation materials’, that contain friable -
- asbestos. As part of this dismantling, Respondent have recentl ’
cut the legs off an approximately- 100 foot ‘tall tower that ‘i,s
called a “cat cracker”. The cat cracker iscovered with a’sbestos
containing insulation.
14. During the ‘inspection on May 28, 1997 by KDHE, the cat
cracker was lying on the g ound surrounded by large quantities of
asbestos containir g pipe and block insulation that ,were dislodged
when the cat cracker fell to the gr9und. - This asbestos -
—4—
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containing insulation observed on May 28, 1997 was found to be
friable. The KDHE employees took samples of the insulation.
Analysis of these samples showed that the insulation on the
ground, o i piping and the cat cracker contained greater than one
percent asbestos (chrysotile, crocidolite and amosite)
15. During this’inspection, Respondents Carl and Jean
Stiffler, their son-in—law Robert Cole and two small children,
identified as the grandchildren of the Respondents, were observ.ed
at the site. The children were observed playing in and around
the asbestos containing insulation.
16. Asbestos is a hazardous air pollutar t as listed under
Section 112 of the CAA, 42 U.S.C. § 7412. Asbestos is a known
human carcinogen. Inhalation of asbestos can lead to pleural and
peritoneal mesothelioma, lung cancer, asbestosis, and other
diseases which are serious, irreversible, and often fatal.
Asbestos has been responsible for the premature deaths of many
persons who worked with insulation. Asbestos fibers are
extremery durable and their size and shape permit them to remain
airborne for long periods of time. -
17. Respondents demolition and reclamation activi ties at
the Shallow Water Re.ftnery site have caused the emission of the
air pollutant asbestos.
IV. CONCLUSIONS OF LAW AND DETERMINATIONS
—5—
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18. Based on the’ Fi.ndin s of F ct set forth above, the
‘Regional Administrator for EPA, Region VII determines. that :
/ a. Respon dents are’ “pe± sons” as defined by’ Section
302(e) of the CAA, 42 U.S.C.’ 7602(e).,
b. Asbestos is a hazardóus air pollutant as defined by
Section 112 of the .CAA, 42 U.S.C. § 7412.
c. Respondents are causing br, contributing, to the
emission of’ an ‘air pollutant.
d. There is evidence that a pollution ‘source i
presenting an imminent and substantial endangerment to the public
health or wélfare’or th&environxn’ent becau’se of the emis ion of
asbestos from the Shallow Water Refinery sIte and therefore,
Respondents are subject to this Order pursuant to Section ‘303,’ of
the CAA,’42 U.S.C. § 7603.,’
e. The actions required by this Orçier are necessary to
protect the ‘public health or welfare or the environment and are
consistent with the CAA.
V. ORDER
19. The Regional Administrator for Region VII hereby orders
that ’Respondents Carl and Jean tiffler, d/b/a Southwest Wrecking
Company, and their agents, employees, and all persons in active
concert or participation with them to::
a. Cease all activities at the ShaJ.low Water Refinery;
b. Keep all’ minor children outside the property;’
c. Res€rict all persons enterir g the propezty to persons
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trained and accredited irnder the requirements of the Asbestos
Hazard Emergency Response Act (AHERA) as, “inspectors,” “project
designers,” “workers” or “contractors/supervisors” licensed by
the State of Kansas Q persons using personal protection
equipment, such as respirators, and protective clothing;
d. Keep the gate to the property closed and locked at all
times; -
e. Cease all disposal and removal of property from the site
including all metals, waste material, facility components and any
other property other than personal effects;
f. Provide records to EPA, Region VII within 30 days of all
names and addresses of all facilities where metals have been
salvaged; and,
g. Within 20 days provide to EPA, Region VII a plan
developed by an AHERA certified project designer to bring the
Facility into compliance with all applicable federal and state
laws, including the National Emission Standard for Asbestos, 40
C.F.R. Part’61, Subpart M.
20. This Order shall be effective for a period of not more
than 60 days unless the United States files a civil action in
the appropriate United States District Court to immediately
restrain any person causing or contributing to the alleged
pollution to stop the’ emission of air pollutants causing or
contributing to such pollution or take such other a tions as may
be necessary, in such case, this order shall remain in effect for
—1—
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• additional 14 days or such longer period as may be authorized by
‘the court in which the action is brought.
VI. ENFORCEMENT: PENALTIES FOR NONCOMPLIANCE
21. UnderSection 113(a) (3) (A) •o the CAA, 42 U.S.C. §
7413 (a) (3) (A), violation o f this Order may, subject Respondents’ to
civil administrative penalties of up tä twenty-seven thousand
five hundred dollars ($27,500) per day of violation.
22. Further, if Respondents violate this Order, EPA may
also seek judicial enforcement of this Order pursuant to Sectipn
113(a) (3) (C) of the CAA, 42 U.S.C. § 7413(a) (3) (C) and may
ommence a civil action for a permanent or temporary -injunction
or t9 assess civil penalties of upto $27,. 0O per day f
violation or both.
23. Finally, under Sect-ion 113(a) (3) (D) of the CAA, 42
U.S.C. 74-13(a) (3) CD), the United States can request -thai the
Attorney Gerieral commence a-criminal action foT violations of
this Order.
- VII.. RESERVATION OF RIGHTS
24. Nothing in this Order shall limit the power and
authority of EPA or the United States to take, direct, or order
all actions necessary to protect public health or welfare or the
environment to prevent, abate or minimizean imminent and
substantial endangerment at the Shallaw Water Refinery. Further,
nothing herein shall be construed-to prevent EPA fr m seeking
—8—
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leg l or equitable r’elief to enforce the terms of this Order, or
from taking other’legal or equitable action aâ iE’ deems
appropriate and necessary, pursuant to-the CAA, and any other
applicable law. Nothing herein shall be construed to prevent EPA
from requiring Respondents to perform further actions pursuant to
the CAA, and any other applicable law.
VIII. OTHER CLAIMS
25. Nothing in this Order constitutes a satisfaction of or
release from anTy claim or cause of action against the Respondents
or any person for any liability Respondents or such person may
have under any applicable statutes or regulations, or the common
law.
IX. NOTICE OF INTENT TO COMPLY
26. Within five (5) days of’ receipt of this Order,
Respondents shall provide written notice to EPA stating whether
Respondents will comply with the terms of this Order. If
Respondents do not unequivocally commit to cease all activities
at the Facility and perform the actions’required by this Order,
they shall be deemed to have violated this Order and to have
,failed and refused to comply with this Ordet.
X. EFFECTIVE DATE
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i. inis uraer shall b come effective the day it is signed
by the ‘Reg ional Administrator, ‘EPA Region VII.
IT IS O ORDERED.
BY’: ______________________________ DATE:,___
Dennis Grams, P.E. -
Regional Administrator
Region VII
United States Environxnent al Proieçtion Agency
____________________________ DATE: ____
Julie M. Van Horn
Senior Associate Regional Counsel
Region VII
United States Environmental Prote tion Agency
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ItO 3 74p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- REGION4
A ILANTA FEDERAL CENTER
100 ALABAMA STREET. S.W.
‘ L AThANTA . GEORGIA 30303-3104 -
4EAL .IiGi 02 7
Certified Mafl
Return Receipt Requested
Mr. Jerry L..’ Drys, President
Trinity Am rican Corporation
!27! G1eno1 -. Indus1ria1 Drive
:4ig - ?bint. Nc-rr.h Carolina 2 263
StJBJ: Order Pursuant to Sections 114 and 303 of the Clean
A r Act
Dear Mr. Dryc:
A:cached please find an Order issued to Trinity American
Cor craLion and Trinity Fibers of Carolina, Inc. This Or ier h
seen issued cursuant to t e author ty granted to the U.S.
v±:crirnc zal Protection Agency under Section 114, 42 U.S.C
7414 and Sec : cn 303, 42 U.S.C. 7 O3.
As noted in the attached Order, you have seven (7) days to
indicate wh’ ther r n Tri i .v rneri n Cor orattän and Thinity
F ccrs of Carolina, Inc. intend to comply with the terms c t e
Order. please direct all correspondence to the attorney assigned
r h S r .a:cer: -
David Savage, Esq.
13th Flcor
Ervironniental !\cc unt bi1ity D vjsio
‘U - S - Eav Lcz: ’m :1La1 ProLc c i u Agency
1 ‘orsvzh Street, Sw.
Atlanta, Geor :a 30303
•Thou3c ycu -a- e any’ quest cns ccncern na the Crd r , lease
rr..r 1r Savage at 404-562-955 .
Sincerely,
Winston A. SrniLh, Director—
r, L’esticideg and TZ ’X CS
Manaaetnerit Division
B,i,.w’i I ,ii i ..., UUU% f(ecyd.d Pig., (4Cr ’ Pcor iumefI
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UNITED STATES’ ENV RO NTAL PROTECTION AGENCY.
F .EGION
-IN THE MATTER OF: i
Oi DLR PURSUANT TO
TRINITY A 1 flICAN ) SECT!ON 114 AND 303
CORPORATION d/b/a ) OF .ThE Ct EAN AIR ACT
TEiflit Foam of Caroliri,)’ -
arid TRINITY FIBERS
• OF CAROLINA, Inc.
A UTH OR:Ty
This Ordcr is issuadpursuant to thca rhori:y gran :e y
Section 114 of the Clear. 2 ir Act (C7 ) 42 tJ.S.C. 7414 a d
Section 303 of tho C. , 42 tJ.S.C. ç 7603, to the A .nis:ra:o: of
— I —
the United States Envircnmen a1 P•otectioa . gencv EPA) . ac:jcn
114 was dQlegated. to the Regional Ad inisb:it r, EPA Reg:cn 4,, Lfl
Headqua t r O 1egaticr . 7-8 and was further delcgated tc :ne
Director of thG Air, Pesticides and Toxics Management ±cn-of
EPA. ea1orl 4, n Regional Do1 gaticn 7 R. Section 303 was
delegated to t-.e Rogional A ini3tra:or. EPA. i eg:cn 4,
ad ar: :s Lecat on 7-49 and was further dRe a::d to the
ec : r of tho A r, :c .des and Tcxlc3 : anagc .Z1 e -1T :c :
E?’. Reg:on . . Rc icr a1 clcgation 7- ’ 9. Th:z C:do: ..s _ sued
; thc Dircct :r of the 2 i:, cstic:des and Toxics !anageten: -
of EPA, Rcg-icn 4.
- PARTIES CUND
1. r:- .s C:der is i s- ied’ to Trinity ? ‘c:ican rocr t :on,
c. •0u31ne55 as I’r nity -Fca L of C rc1 .ra : d Tr n::’ e: of
C roLjn.i, Inc.. :oferr: Lo :s :nJ:y’
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Industrial Drivc, High Point, North Ca:o1i ia.
2. This Order shall apply to, and be binding upon.
Trinity. its officers, directors, exnpioyee , agentz, trstses,
receivers, successors, assigns. and a11 other persons. including
ut not liinitdd tc fits, cor orations, subsjdj r.cs.
contractors. and consultants acting under or ‘on behalf of Trinity
in connection with the mplcmentation cf this order.
To ha ;e the ownerzhip of either cf the fiac l ties
affected by this Order or the corporate or partne:shio sta’:us of
Tr:nity will i any - ay e cr.• dr ini h, or h .r .i±se affec t the
ôbligat ops cf T:in :y under this Orde . Tr njtv shall be
r sconsth]c for a d able for cc pleting all of the acti.vi:i s
rec uirad pursuant :c h s Order, rcaardless of wh perfo s the
acLi I 1e . Tr1n ty hail be liable for its Eail :e, the faii.ure
of its pioyees. agents, contr ctcrs or cor sult n:z, to
ccrn le:c .y perform any and all of aid activities. nr t a:i fv
each of e tens anc conditibns herein.
- . Tr .n y a copy of this Or r:o all
c:r.:ract :s. s bccntractorz. labcratc:ies and ccr . an:s
e:a:ned Lo ccr duct or :ten tcr nY ort cn cf the crk to be
rerf3rmed pursuant to zhis Order. i\ co v of the Order shall be
:rcv: ed within sevcn (7 dav a: Lhe ffecti e 1at: of :hi
Crdor cr :ho ±a:c :ha: such serv:oas are ro:air.cd , wnic eve:, iz.
Tr ::.’ shal c diz t ’ion ail ccntract rt aes w’.th
o n.rac: ”r . . ubccn ctr:, Ja : c,riec, ai d,’cr cor su .:an . :n
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connec .!on with thisCOrdor; on compli-ance wi th hc te of thc
Crder.
5. In th ever.t c± .ny change in Lho owner or o era:or .cE
either of the faci1it1es affec ed by thi Order dur:n tho
pendoncy of this Ordcr. Trinity shall notify EPA in writ n , no
later than 30 calendar daya prior to suc1 chanqc, of the rat re
d cffec: c dafle o such change. Any docuzne .r s transferr ng
ownership, control and/or ope ation of either of the facilities
affected by th s Ordcr during the pen.dency of this order shall
include written notice cf :h Crdcr. Further, Trinity sh il
prcvide a copy C: th C:der t 3rv successor(s) durinc th
oeridoncy of the Order.
FINDINc-S O FACT
Ahas received c i.dencc o the following:
1. ‘:r:n..-:y ‘_r.er:c nCor;oraz . .on, a North Car ia
cor crat.. cfl. O TLZ arid ;c:a s a polyurethane uf ::ing
.ant (thc :cam PLan:) ca ed : 275 Gleriola iu: a ri-;e,
n ‘ hc C1 rola r mun :v R nd3lph Ccunc’.’. ? .n:, : c:th
Ca:al na. The Fcar L l3: doez bUS!IieSS under thc & e c ‘:ir..ity
- Fo of Carolina. -
. rrin.ty ‘ibc:s f Car:lina, Inc., a Tor:h C rc a.
cc:;orat.or , cwn and c;erat s a fiber pad manu a t :n ::an:
::-e Plar-.:) loca::d :r . same . :e and a - ac: t
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Trinity i\merican Corporation and Trinity Fibe s of Carolina,
Inc., share major stockho]ders nd kay managcment personr 1.
3. Thc foam Plant usc methy].ene chloride. Chemical
lthstract e ice (CAS) nur ber 75-09-2;a.s a 1owing agent in the
product or of some grades of foam. M thylone chloride has bc-en
desigr.ated by Congress asa hazardous air pollutant (EA ) under
Sadtion 11 b) (1) of the CA?... 42 tLS.C. S 7412(b) (1). Methylerie
chlcrida used by Trinity as a blowing agent is emitted tc thc
az oierit a. r
4. The Foam Plant aLso uses toluene di socyanate rDi),
c. s nwnbcr 26471-62-5, as a raw tetial in the rcducti:n of all
grades of foam. TDI usuall ’ exists in t e farm of eithe: cne of
wc izcmers: 2,4 oluenc d i5ocy,anate (2;4-TDI), CAS nur er 4-
84-9 or 2,6-toluene diizccyanatc (2.6-TDI). CAS number 9L-0 -7.
Tr.nity ucc a typica x ercial grade of TDI. wn ch iS a -:.
-jc of 2, T I o 2 5-TM. 2,4-TDI is a HAP under Scc: :n 2
f the C4\A. 2 ,5-TDI is a toxic c .cmical and cxtr mcly :- :ard: s
a cc nder 40 dR 355. A combination cf 2,4- ;: ’and
2 . -TDI i1l be :.2ferr d a as T1 throughou: this’ order.
. tz a result af the nufacturing process th Fca .•
?1a t. TD is emittad to :he arnbier.t air. TD! :s a high y
: activc campounc that c t emcJ y to:dr to hum&is at w
: ‘-e1c. : ic primary rc.u:e cf TDJ. cxposure is in alaticn c
t c primary cf cts are pulmonary in ratu::. z
- c cr:i1 :rit.i : :he uco membranes of c.: c anci
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cves and thc respfratory and gas:roinPr stina1 tracts. TLI
irritates the respLratary 5yst:n, causinq’ccughing, f1u-1ik
symrtorns, t airifu1 brcathing, and shortnezs of bre th
expŕsure may result in chronic airway dtsord2rs, bronch 4 z s, a-
declining lung tuncticn.
6. TDI also is a potent sensitizer. Persons who have
become se it.zed to TDI through- previous exposures ir v dcvel
severs, asthrnalike S ptcms, wheezin , bronchial hyDer-
responslve ’iess, ’ tightness in the chest and difficulty in
breathing. when e xposed tŕ extremely low levels. ‘For sen itiza d
ersons, there :s•rio known safe l vel ’’of ex;os re to TD:, and the
appropriatc.aedical eatntc .t is the el i1rL1nat1on of fur - e
exrosu:e; Death from severe asz a attacks brcu ht on by
repcated exposure to I has been reportod. Sensitized e:sons
ay also c :;er1 nC: ad-;ers hea:n cffec:s when’ c::posed other
ciu.:al ‘.r: :an:s.
7. n scne persons expp ed to T’DI, :hc bcdy’ will .ricrea c
zc tra: ..cns of highly’spsc:fic anLü od .e .. The Dresenc c:
:hcze anti ,ood..es ccnfi=r s t.-ia: he person has been sxpcsed to
‘TD :CSUrs and advc:se hc l:h effects from, TDI r ioc:’ r
wr,.:hcut the devclopment of these antibodies.
3... The er Plan: cr9a :es fiber addirig. f cn variety’ of
‘ r p ±:b :z and a,bric to ‘ hic . a la ex b .ck:n; :s• apolied and
- c an tactur=g- ;rocer. su. ’: -iis-3n 0 nan-;
:- :..nclud:ng ‘ c -yla.n . .dc , CAS nu:rber 79- )6 ., rral shy e. C.\S
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number 50-00-0, vinyla etaté, CAS nuiri.ber 108-05-4, ‘cenzer , CAS
nu 71-43-2, 2,4,6 trichiorophenol, CAS nuznbor 88-06-2, 1.3
bur diene, CAS number 106-99-0, acry1oni .rijc, CA$ nu.n er 107-13-
1, toluer, CAS number 108-88-3, xy1cnes CAS numbor 1330-20-7,
and ac taldehydc, CAS nusaber 75:07-0. a nong others. The
m nufac uring proces also emitz other unknown volatile o:;anic
com ounds and particulate matter to the nbien: air.
9 - 1anv o tho residents of -Glenola live i cdiateL,
adjaccnt to or in very olooc proximity to the oa Plan: and the
F:ber P1a:i . tany o thesc residents ‘nave 1iv d in the vicinaty
cf e Fcam 1ant ar the Fiber Plant for nore than twent-. ’ jears.
In th past sevoral years. many of these :ezidenLs ha-;e re or:ed
some or aLl the fo1io :ng s ttptoms: severe headaches. d z:: ess ,
ches: oa ii, ccnfusicr . tlngliflg in the fingers, skin:ashes.
- r:a: and eve r:i a :,nc chlceds, i :kcuts, whee:jn and
o
13. any o: r sidcnts report tha: ! hcir sp oms cend
t c nc ie tn act: -;i:i: a: the Tcarn PLan: and’ Fiber Plan: and.
itn v1s: e emissicns and/cr strcng odors r na::n f:cn
ini y’ plants. .ary c tho resf.derLtz repcr: : L:ef rcr. hcse
. r crcms zheri they lea;a the Glenda comm.un :y.
ii. On the evening,o August 11, 1997. staff EPA and the
Toxic Su stanc:s and D’ soase ? c istr ’; AT ? ) ca - .e tc
= ccr m:::: y :s cn. : tc residents r:;cr:3 :
ed-ec...j _nc:i chncr eve’c headaches. diz::nes: . :f :: 1y -
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br athing. ‘While onthe property of a r ident. staff obzsrvcd
5L.!011g odors and witnesscd particulate natter in the air that’
appe .re.d to- e!rtanatc from the Fiber Plant.
12. On \ugust 25. 1997,. ATS R issued f r pub1 c c r cnt a
draft ea1t Con su1tat:on concerning adverse health ‘effects,
ex r enced by Glenola residents. In the draft Health
Consulta:ion. ATSDR ‘concluded that there wasa raason 1
pr ba . i11ty that air e ssions E:cm the Fo Plant and/c ’ibcr
Piant. were rcsu1tirL i he reserica of unidentjfjed’ccnt - nants
in thc a thicnt a r near same res:dences.at levels present:n; a
cubi.ic health hazard.
1.3. On Septc.’ther 2 1997, several residents living r ear
Tr nity repcrted severe adverse health effccts. At thc
: me , personncl from t:-e Torth Carclina De;arL-t .ent cf En ronment
Nat s.1 escurces zic: cted unidentified organic 7a c:s at the
oaundarv of Trinity’s property and near ad :in.nq residshc s t.’
1 vels of concern. - As a result. the Randcl;h Ccur.ty H2alth
; ar:nen:. based on a rzcouun ndation of ASDR, urged rcs a i:s
:o evacuate : ic area. ;pr .tely lOG p cp1e took shel:er a a
L±ca! creat:on cen:er in Archdale.
14. On. Se teirt er 3, 1997, the North C rolin Stat Eealth
J:rector, Dr. ? ona1d Levine (State H alth Director). i .oued an
a:r erit of P.o_ic Fca. -zn Nu_sanc..e t3 der o Aoatsne..i:)
:o ‘r:nity. thc C dr.r C: Abazer cnt, the tat ea tri D’roctcr
rn icnz from the Foam Plan: and the j c-.r lar:
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are the causeof frequent arid continui.nq syr ptomc of ill he 1th
amc.rig nearby rezLdents. The Order of Aba temcnt r ires Trinity
to ce zo all ma uEacturing operations at the Fo PlanL arid thc
Fiber l t until Trinity can demonstrate to the State Health
Djrectcr that th plants can operate without creatiiq a public
h a1th nu s ice-
15. The North-Carolina Department oE Hcalth and iii. nar
Services has contracted with the Division of Occucati nal and
Env ronrnenzal Medicine cf Duke University Yied za1 Centor
cc duct a medical evaluat±.or i of up o ‘60 residents of Glari 1a.
For each oartic pant, the study c bsists of p::paraticn of a
cornprehensivc d:cal and exposure qiiestionna rn and a ci:n cal
evalua€ion including a clinical exaz inat on, culmcnary fu ’icn
tests, and tcstinq f r TC antibodies.
i . on Se .bEr 15, 1997. the phvsician1oad .in the st dy
Dr. ennis I. Dar: y. reportcd that or of the s:dcnt
tested posit.ve ::rbc:h the TDI antibody and :e ct vc a •,ay
r. Dar:c’; ccncluded that the a r ay r’ ponze az
likcly due to exposure to chemical lrrLtants anc gasco zL ciz.g
:-fr aiso concluded that the resident ia-.: bc senz::iz d
Tfl:. ‘c; may triager resp ratory s otc z at 1 ve1 f e: rc urc
.ow a ons part er blilion . e r cr nded that the.
de - ’ .vcid any fur.ther exposure- to c cmicaj , ase.s
a::d vacc: . r:ul.v t ccyanates.
j.7 . nScpcernber 29, 1997, Dr. Darccv er:cd Lhac a of
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9
hi date, a total of thirteen (13) rcsidc’nts had be n oval.iatcd,
ncluçling the resident ref orred to above. Easod onçreli. .inarv
results, six (6) have been agnosed wiLh react ve’a:rwav d-.z ase
a:tributa le ‘to eiivi:on enta1 exposure. Dr. Darceyconcluded,
based pn the prelinunary rssults, that these six (6) :as den:s
should not be further x ossd to TDI.. He also CQflcl ec tha: the
residents a e ow tore at risk to develop air y rcac:iv:: ,-
s’rrr Lorn with ex csure to cther chemical irritants.
18. A r emissions frci the Foam and Fiber Plants .
e oec allv TDI and other chern.ical:irritants. have l -:e1v za s
or čontributed to ad;c:se health effcc s expericncad by ::sL ents
liv ng rear these plants.’ Furthc exposurc to TDI and othc:
ohc ical irr :ants €:cn :hc Foam and Fiber Pi? flt : an: an
nintirien and substantial ndangcrmerit to porsons livin; near :hc
glants .
i . ?A has oonsu..:sc. wL h ot:icials at the. Ncr i : c o: :na
tarn: of nvircn ent ar d Nar. rai .Resourccs, c
Car.na n arnsn E :- .1:h i-Lu r.an Servj.e s an
?andclph Countj Hea :h e;artrnent to confirm the ŕccuraov
cve f o :s. PA has a.so contacts c.ho •:esideri z :c ar nd
r..n]..ty and:has ons l ed n.th mcdical doc:ors. I tT! ahd
n_ ers1ty medical sta to confirm the accuracy cE ::,
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CO ICLUSI0NS OF L2 W
N concludes thc fo]iowirg:
1. Trinity American CorpoLa ion and Trini:y Fibc:s c
Carolina. nc. are each a “pcrson” wiEhln thc.rneanjn cf Łectior z
302(e) and 303 of tho C? A, 42 U.S.C. 5 7 02(o) and 7603.
2. Tho Fo Plant and the Fiber ?lant arc each a “ ol’ : ŕn
source” within the ncaning oE Section303 cf the C??., 42 u.S.C.
7603.
2. The Foact P1an and the Fiber Plan: en:: ‘fair pc1 s
wi:hin ho !neariing of Scctions 302(g) and 303 of he Ci , .
U.S.C. /61)2(g) ar.d 75C3. -
4. The Foo ? ant an the iber Plant a:e an
source” within the meaning cf S ’ ion 114 of tho C?J , 42 .3.C.
4.,;.
5. The Foam Plari and the Fiber Plant ar :ausinc
contributing to the cllutian of !-He u r und ,r.g virc _- e :.
. ?A has r c i d videnc thafl :ho Coca:i r. cE : c
ca n ? an and/cr :ha F.ber ?lant, is c :c en n; Cn : z : nd
s bs antia cndange .erL: t ub .c health and ‘vc are.
7 I is not practicable zo assure ;:ornpt rotect:cn. : -.:-.
lic haa h and wefare y corrmencem’ent f a •;:i ac: cn .izder
cc:.tcn 3C3 of :he C?_ .
a. ‘ne a::icns :ecu:: d t: bc ta-ian . y
rc ’ ; Orc c: a: ccZ 3ry c ?rot c: u. l:c - cal
•ial:are.
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ORDER
i z a sulc of the above Findiz s of Fact and Conc1us s f
an d pursuant o the authority in Secticn 114 of the C , 42
LT.S.C. 7414 and Sec:ion 303 of th C)’_ ,’ 42 u.s.c. 7 O3. is
ordered !ha :
1. Trinity sha .1 not ori a e in. any rnanufacturjn
o erat or.s a the Fca Plant and he Fi er Plant, ur.til such ti
as E?A d c c mirics that chose operations will not prcsar.z
]Jt rtjner.c and substanc a endang rtor t tc p ibiic hoalch and
we .f are.
2 PA acknow. adges receipc of a copy of Trin±.tv’s
September 29, 1997, ro.;osa1 to Lh state eaith Dirocto: or
ss.ons tes:±ng and c eratioa of tho Fiber .Plant. This
roçcsa1.. is mad at to er sure that manufacturing o;crac±:ns :
the Fthcr P1 an.: ‘ i1l r.c: resent an .nenc anc. sbscantia:.
ndgenenc o publ:c’ hoalth and wcif r
3 :f Tr nic’r :ntend to rz &ocer3.t:crA. of either :
Foan. Lan or ?i:cr iant. Trin .L:y hall suorru . ’to EP? a wri : .
:c;csa1 t hiz 3G days from thG icsu nce of t i Crder, for
- nir:n.g c eracicn of : c and : F .ber Plan:z in a :r n ne:
s nr.n.a: sa-id ooera::cr . docc not :re3 ri: an i u incnr. and
.suosantiai endanqerrLant :- ci r heaLth nd e.fare. An. ...c.-.
c: a. hai. : c.udc adcc uate tu asures :o :r:tcc: the haa .:h
o f r.e i 1tc,=g n.ear : F .in and ?1an: .’
1 e pro ’;z \ ‘- ‘-‘
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thtp lernentation.
4. Within seven (7) dav from the e ecdve da o of
Crder., Trini.ty shall notify EPA inwri.tinq whether Trjni v
intends to comply withth te .z o this Ordcr.
ENFQRCE IENT
1. Vtolation o this Order may subject ‘ ri .ty to civ:.
penalt cs of $27.SOO,per day for each d y cE violation :r an:
SoCL fl ll3 of t e Ci\A, 42 U.S.C. 5 7413, and the Deb-.
Coilectic L’nprovemcn Act of 139E, 31 U.S.C. 5 3701.
2. Any’ person hc kncwin;ly vLclates this Order ha1_,
u cn ccr.’ ra.ction, be ct nished by a fino pursuant to Tit1
b - pri5c: .rrtcnt ncr. to exceed f ;e years. or both, curs az:
section 1.3(c) ( ) of t:- Ace. 42 U.S.C. 7;l3 c (.)
3. T ii er :s cffec:ive upon iszua c .
C EVEP ..2 ILITY
If a court of : rr pe cn: jurisd;ction an crde: tha:
a1 da: r; cv:3ion th Order. Tr:n :v shall
::c nc o .ii h a p vis cris c :hi Order .- ot
= ed c n: //7 2 _
‘T 7 4 ’
c:nszon ?.. m :h. Iir 3C :
r ’
— —. i...— - .-. ‘—
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1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
2 REGION IX
3 In The Matter of: ) Docket No. R9—94—34
4 MINEREC MINING CHEMICALS ) CLEAN AIR ACT
EMERGENCY ORDER
5 Proceedings Pursuant to
Section 303 of the Clean Air Act,
6 As Amended,
42 U.S.C. § 7401 et seq. )
7 42U.S.C. §7603.
- )
8
9 The Regional AdminIstrator for Region IX of the United
10 States Environmental Protection Agency (“EPA”) makes the
11 following Findings .of Fact, reaches the following Conclusions of
12 Law, and Issu’es’ the following Order:
13 FINDINGS OF FACT
.4 , 1. The Administrator of EPA, delegated the authority vested
15 in her by Section 303 of the Clean Air Act (“the Act” or “CAA”)
16 as amended, 42 U.S.C. § 7603, to the Regional’ Administrator for
17 Region IX.
18 •‘ 2. Section 303 of the Act, 42 U.S.C. §7603, provides that,
19 upon, receipt of evidence that a pollution source or combination
20 of sources is presenting an imminent and substantial endangerment,
21 ‘to public health or welfare or the environment,and after
22 consultation with apprŕpriate State and local authorities t
23 confirm the accuracy of the information on which the action
24 proposed to be taken is based, the Administrator may issue such
25 order as may be ‘necessary to protect public, health or welfare or
16, the environment. ‘
7 3. Respondent Minerec Mining Chemicals (“Minerec”) has
28 - discharged from its’ facility’ located at 300 E. Vamori Street in
EPA’ Region IX
Emergency Order -
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1 the San Xavier Develop nent Authority (“SXDA”) industrial park
2 near Tucson, Arizona (“the Minerec ,facility”) substantial amounts
3 of hydrogen sulfide (“H 2 S”) and other gases into the ambient air.
‘.4 Such discharges have caused numerous individuals to be
5 hospitalized or seek medical treatment, and further discharges of
6 this kind would present an imminent and substantial endangerment
‘7 to the public health orwelfare or,the environment.
8 4. Authorities from the San Xavier District of the Tohono
9 O’odham Nation, which has juri’sdiction ov’er the industrial, park
10 where the Minerec facility is located, have diligently attempted
11 to decrease the level of contamination into the atmosphere. The
12 threat of further discharges’ from the facility remains, however.
13 5. It is not practicable to assure prompt protecti9n of
•.4 public health or welfare or the environment i,n the San Xavier
15 District to await.commencement of a civil action in United States
16 District Court.
17 6. On August 26, 1994, my staff and 1 discussed the threat
18 posed by Minerec’s air emissions with officials from Pima County,
19 Arizona, with off ici 1s of the Tohono O’odham Nation, with
20 offIcials ’ of the San Xavier District of the Tohono O’odham
21 Nation, and with other local officials. All of them confirmed my
22 findings and supported my decision to issue this Order based upon
23 the risk of re’leases and upon their knowledge of Minerec’s
24 operation and maintenance procedures. -
25 ‘ CONCLUSION OF LAW
26 7. The Regional Administrator for Region IX is vested with
7 the authority of the Administrator, under Section 303 of,the Act,
28 42 U.S.C. S 7603.
EPA,Region IX
Emergency Order 2 -
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1 ‘ 8. The Minerec facility has been found by the Regional
2 Administrator to be presenting an imminent and substantial
3 endangerment to the public health or welfare or the environment
4 and to be an appropriate subject for the issuance of an order
5 under Section 303 of ‘the Act.
6 - ORDER
7 9. The Regional Administrator for Region I hereby orders
8 that Minerec Mining Chemicals, its agents, servants, employees,
• 9 and attorneys and all persons, in active concert r participation
.10 with them to start, on August 26, 1994, a safe shutdown of all
11 manufacturing operations. All on-going reactions must be
12 terminated in the safest manner p’ossible, and no new
L3 manufacturing operations may begin. All bperations necessary to
4 prevent air emissions and to maintain the integrity of chemicals
15 ‘and equipment at the facility must continue. Furthermore,
16 Minerec must make reports ,by telephone by 3 ’p.m. each day’
17 (including weekends) to Barbara Gross of the Regional IX office
18 at (415)744-1136 on the status of shutdown efforts. This
19 reporting requirement shall remain in effect until the shutdown
20 of manufacturing operations is completed. • I
21 10. This order shall be effective for a period of not more
22 than 60 days unless the United States files a civil action in.the
23 appropriate United States district court to immediately restrain
24 any person causing or contributing to the alleged pollution to
25 stop the emission of air pollutants causing or contributing to
6 such pollution or take such other actions as may be necessary.
11. This Order is effective immediately upon receipt by
28 defendants. The Regional Adniinistrator for Region IX hereby
EPA Region IX
Emergency Order • - 3 -
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1 issues the above-identified Order which shall become effective as
2 provided therein.
3
4 - - _____________
Date Feiicia Marcus
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EPA Region IX
Emergency Order - 4 -
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CERTIFICATE OF SERVICE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
In The Matter of: ) Docket No.
MINEREC MINING CHEMICALS
Proceedings Pursuant to )
Section 303 of the Clean Air Act,
As Amended,
42 U.S.C. § 7401 et seq. -
42 U.S.C. ‘S 7603.
The undersigned hereby certifies that he is an employee of
the United States Environmental Protection Agency and is a person
of such age and discretion to be competent to serve papers.
That on October 7, 1997, he served a copy, of ‘ he attached
EMERGENCY ORDER by hand to the person h’ereinafter named, at the
places and addresses stated below.
Person: ____________________
Address: ____________________
EPA Region ‘IX
Emergency Order
Esteban Oyenque
— 5- —
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
3 WASHINGTON D C 20460
4 -
MAR 16
OSWER Directive Number 9833.07
QEMQI
SUBJECT: Model Unilateral Administrative Order for Removal
Response Activities
FROM: Bruce N. Diamond, Director
Office of Waste Pr a m a Enfo cement
Will it., Enforcement Counsel Superfund
Off i e of Enforcement
To: Addressees - - -
Attached is EPA’s final model unilateral administrative order
(UAO) for removal response activities. This model order embodies
the language that EPA regional offices should use when issuing
removal UAO5.
The Regions and the varLus. Headquarters offices provided
extensive input during the development of this model UAO. The,
workgroup reviewed all drafts and submitted and reviewed all
comments for possible inclusion in the order. The workgroup gave
particular attention to creating a streamlined order whjch
includes ldnguage fzu other model documents.
Although regional use of the model uao is not mandatory, Uf
believe the model order should form the core of any removal UAO
because ths order represents a unified Agency position •f or removal
tot it jiP We encourage all Regions to make good use of the
model order.
Finally, vs thank you for your participation in helping to
develop this order and hope that you find this order useful.
ttachaont -
Iddrsssees: Director, Waste Manag ent Division
- Regions I, IV, V, and VII
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Director, Emergency and Remedial Response Division,
Regionli
Direŕtbr, Hazardous Waste Management Division
Regions III, VI, VIII, and IX
Director, Hazardous Waste Division, Region x
Director, Environmental Services Division,
Regions 1, VI, VII
Regional Cŕunsel, Regions I-X
Henry L. Longest, II, Director, Office of Emergency
and Remedial Response -
Earl Salo, Assistant General Counsel, Office of
General Counsel
Bruce Gelber,, Deputy Chief, Environiental
Enforcement Section — Lands Division
cc: Regional Superfund Branch Chiefs
Mode 1 Removal Order Workgroup
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OSWER Directive Number 9833.07
MODEL UNILATERAL ADMINISTRATIVE ORDER POR
ACTIVI ’IX8
DATE: ‘March 16, 1993
This docuasnt is solely intended as guidance. It does not
establish a binding norm and is not finally deterRinative of the
issues addressed. This docuaent i-i not intended to be a synopsis
of -princJ Les of law. Th• policies and procedures in this
guidanc. do not constitut. a rul.aaking by the Agency, and ay
not be r.li.d on to create a substantiva or procedural right or
benefit enforceable at law by any person. The Agency may take
action at variance with this guidance.
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DIRECTIONS
Information/sections/language is optional is contained in’
brackets (3. Notes, annotations and language which require
Regional specific, or site—specific- variation or information are
identified in italics. a.rentheses (), and underlined.
Optional: The Regions may identify the various sections with
either letters or numbers. -
Office of Waste Programs Enforcement Contact: Fred Zimmerman
Telephone number: (703) 603-9063 -
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION Number
IN THE MATTER OF: UNILATERAL ADMINISTRATIVE
ORDER FOR REMOVAL RESPONSE
( Title o.f Site ) ACTIVITIES
( City or Town. County. State )
U.S. EPA Region
CERCLA
- Docket No.
( Nanie of Rescondent(s)) ,
Proceeding Under Seót ion
106(a) of the Comprehensive
( If there re aariy Environmental Response,
Respondents. reference compensation, and Liability
attached list. ) Act, as amended, 42 U.S.C.
S9606(a)
Respondent(s)
(The Table of Contents section is optional.]
I.
i’j1 j’)(’, I(’j
This Order is issued pursuant to the authority vested in the
President of the United States by section 106(a) of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. S 9606(a), as amended (“CERCLA”), and
delegated to the Administrator of the United States Environs ntal
Protection Agency (‘EPA”) by Executive Order No • 12580, January
23, 1987, 52 Federal Reaister , 2923, and further delegated to the
Regional Administrators by EPA Delegation Nos. 14-14-A and 14-14-B
(and to the ( Insrvt Regional delqgation information if -
This Order pertains to property located at ( address or descriptive
location of Site ) in ( City or 1 vn. county. State4 the ‘(ffaa )
Sita!.ora. ‘Site’. This Order rtquires the Respondent(s) to
aoeduat:r va1 actions described herein to abets an iUin.nt and
substantial sndang.rment to the public health, welfare or the
environment that may be presented by the actual or threatened
releas. of hazardous substances at or from the Site.
EPA has notified the ( State or Comaora.alth of (State) ) of this
action pursuant to section 106(a) of CERCL&, 42U.S.C. S 9606(a).
1
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II. P RTIE8 BOUND
This Order applies to and is binding upoh Respondent(s) fand
Respondent( 1) (s) (‘) heirs, directors, officers, employees, agents,
receivers,, trustees], successors and assigns (Name one or more
of the parties identified in the brackets (] only if the party ‘S
liable because it has significant decision-making authority,
control over the day—to—day activities of the facility, or bther
similar involvements.) Any change in Ownership or corporate
status of Respondent(s) including, but not limited to, any
transfer of assets or real or personal property shall in no way
alter Respondent(’ ) s(’) responsibilities under this Order. (Z
the Order is issued to more than’ one Respondent. add the
following: “Res ndents are iointlv and severally liable for
carrying out all activities required by this Order. Comr,liance or .
noncompliance by one or more Respondent (5) with any provision of
this Order shall not ercuse or justify non comnliance by any other
Respondent(sJ.”) -
Respondent(s) shall ensure that ( its/their ) contractors,
subcontractors, and representatives receive a copy of this Order
and comply with this Order. Respondent(s) shall be responsible
for any noncompliance with this Order. -
(This section is ŕptional. Regions should use the definitions
included in the Model RD/RA Consent Decreá (OSWER Directive
9835.17), or the National Oil and Hazardous Substances Pollution
Contingency Plan, as amended 40 C.F.R. Part 300. Regions that do
not include definitions shŕuld identify terms as necessary, ,gj,
‘business days and calendar days)
Ii?. Ix DT1O8. 07 P lC ’!
( Because Findings of Fact are aite-Bpecific.’ no model language is
provided. Facts should be presented concisely. accurately. and
L LcgZ2y., They shcs ld support. the finding of endanaerment and
outline tia. basis f - n 1ng Rea ondenti’aJ. Regions should /
include a discussion of the followfnçr points: identification of
Respondeiit ( p1. site location and d.scrintion. site history and
operations. sit. cenership.. enforo i nt history. gáneral
categories of Respondent(s) liability, past EPA and/or State
acti iti.s nd investigations. cond. tions and data showing
11r T r1B11 tnT ’r(1iT T t ’hT fl1
releases y present an I..ln*nt and substantial
e.g.. er’poaure routes, risk assea nt. affected populations.
anviron ntal harm. nctential for fire or explosion. and other
T’ T ’?TT1TI ” T”TT ’ S
under section 101(0). EPA y issue an order to persona who may
riot be liable parties — Re. O ER Directive Number 9522 • 0—la. I
Regions should make this information consistent -with information
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required in the Action Memorandum, as set forth in the ‘Action
Memorandum Guidance. OSWER Directive Number 9360.3-01. Regions
should aather the evidence necessary to support the findina into
an administrative record. Regions should provide a brief
description of the removal action being ordered and why it is
necessary to protect the public health, welfare, and the
environment. )
V. CONCLUSIONS OF LAW AND DETERNINATIONS
Based on the Findings of Fact set forth above, and, the
Administrative Record supporting this removal action, EPA has
determined that:
1. The ( name ) Site is a “facility” as defined by section 101(9) of
CERCLA, 42 U.S.C. S 9601(9). 1
2. The contaminants found at the Site, as identified in the
Findings of Fact above, include “hazardous substance(s)” as
defined by section 101(14) of CERCLA, 42 U.S.C. S 9601(14).
( Regions may list each chemical compound. )
3. Each Respondent is a “person” as defined by section 101(21) of
CERCLA, 42 U.S.C. S 9601(21).
4. Each Respondent is liable under section 107(a) of CERCLA, 42
U.S.C. S 9607(a). (Optional: Regions may specify each category of
liability under’ section 107. For example:
A. ‘Respondent(s) ( Name(s) ) is ( ) the “owner(s)” and/or
“operator(s)” of the ‘facility, as defined by section
101(20) of cERcTA; 42 U.S.C. S 9601(20), and within the
meaning of section 107(a) (1) of CERCL&, 42 U.S.C.
Section 9607(a) (1).
B. Respondent(s) ( Name(s)) ’ was ( ) a (the) “owner(s)”
and/or “operator(s)” of the facility at the time of,
disposal of any hazardous substance described in this
section at the facility, as defined by section 101(20)’
of CERCL& 1 U.S.C. S 9601(20), an ijthin the meani ig
of section 107(a) (2) of CERCL&, 42 U.S.C. Section - ‘
107 (a) (2)
C. Respondent(s) ( Name(s) ) arranged for disposal or
t.aatment, or arranged for transport for disposal or
treatment of hazardous substances at the facility, by
any other party, at any facility, and within the meaning
of section 107(a)(3) of CERCU, 42 u.s.C. S 9607(a)J3).
D. Respondent(s) ( Name as ) ) accepts or accepted hazardous
substances f or transport to the facility, within the
meaning of section 107(a) (4) of CERCLA, 42 U.S.C. S
9607(a) (4).]
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( If a Respondent(s) is not a liable party under section 107,
identify the Respondent , ‘č and modify the determinations in this
paragraph as appropriate. ) -
5. The conditions described in the Findings pf Fact above
constitute an actual or threatened.”release” of a hazardous
substance from the facility as defined:’by sections 101(22) of
CERCLA, 42 U. S • C. S 9601(22). ( Regions may specify which
paragraphs in the Findings of Fact aDpiy. )
6. The conditions present at the Site con titute an imminent’ and
substantial endangerment to. public health, welfare, or the
environment. ( Factors that may be considered are set forth in
section 300.415(b) (2) of the National Oil and Hazardous Substances
Pollution Contingency Plan.- as amended. 40 CFR Part 300 (“NCP”)) .
(Optional: These factors include, but are not limited to, the
following: ( Include only those which apply) ’
a. actual or potential exposure to nearby human populations,
animals, or the food chain from hazardous substances or,
pollutants or contaminants; this factor is present at the
Site due to the existence of ( identify) ;
b. actual or potential contamination of drinking water
supplies or sensitive ecosystems; this factor is present at
the Site due to the existence of ( identify) ;
c. hazardous substances or pollutants or contaminants in
drums, barrels, tanks, or other bulk storage containers, that
may pose a threat of release; this factor is present at the
Site due to the existence of ( identify) ;
d. high levels of hazardous substances or pollutants or
contaminants in soils largely at or near the surface, that
may migrate; this factor is present at the Site due to the
‘existence of ( identify) ;
e. weather conditions that may cause hazardous substances or
pollutants or contaminants to migrate or, be released; this
factor is present at the Site due to the existence of
( identify); ’
f. tnreat of ‘fire or explosion; this, factor is present at the
Site due to the existence of ( identify) ;
g. the unavailability of other appropriate federal or state
response mechanisms to respond to the release; this factor,
supports the actions required b this Order at the Site
because ( ç j );
h. other situations or factors, that may pose threats to
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public health or welfare or the environment; this factor is
present at the Site due to the existence of (identify) ].
7. The actual or threatened release of -hazardous substances from
the Site may present an immnent and substantial endangerment to
the public health, welfare, or the environment within the meaning
of section 106(a) of CERCLA, 42 u.s.c. s 9606(a).
8. The removal actions required--by this Order are necessary to
protect the public health, welfare, or the environment, and are
not inconsistent with the NCP and C CLA.
VI. - ORDER
Effective Date: (Ina.;t date) ( This date needs to.be consistent
with the effective date in Section XIX. Effective Date.)
( The removal actions ordered here should be consistent with the
Actián NemorandumlDecision Document) . -
Based upon the foregoing Findings of Fact, Conclusions of Law, -
Determinations, and the Administrative Record for this Site, EPA
hereby orders that Respondent(s) comply with the following
provisions, including but not limited to all attachments to- this
Order, all documents incorporated by reference into this Order,
and all schedules and deadlines ,in this Order, at .ached to this
Order, or incorporated by reference into this Order, and perform
the following actions:
( Early Site Security requirements may be required by the Regions ]
1. - Notice of Intent to Comolv
( The timing of the Resnondent ( • 1 Is) (‘1 op rtunity to Confer
should always precede the deadline for the Notice of Intent to
Comply. Nonetheless, the Notice of Intent to Comply date must
always be consistent with the timina of the oooortunity to confer
an? the effective date. ) -
Each Respondent shell notify EPA in writing within days after
the effective date of this Order. of Respondent’s irrevocable
intent to comply with this Order. Failure of any Respondent to
provide such notification within this time period shall be a
vio otiou o this Order by such Respondent. - -
2. Des ianation of Contractor. Project Coordinator. - and On-Scene
Respondent(s) shall perform the removal action itself (themselves)
* Note: All time frames in the Order are expressed in calendar
days except where noted.
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or retain (a) contractor(s) to perform the removal action.
Respondent(s) shall notify EPA of Respondent(’) (s) (‘)
qualifications or the name(s) and qualification(s) of Such
contractor(s) within ( ) bus.ine ss days of the effective date of
this Order. Respondent(s) shall also notify EPA of the name(s)
and qualification(s) of any other contractor(s) or
subcontractor(s) retained to perform the removal action under this
Order ‘at least ( ) days prior to commencement of such removal
action. EPA retains the right to disapprove of any, or all, of
the contractors and/or subcontractors retained by: the
Respondent(s), or of Respondent(’)(s)(’) choice of, itself
(themselves) to do the removal action. If EPA disapproves ofa
selected contractor or Respondent(s), Respondent(s) shall retain a
different contractor or notify EPA that it will perform the
removal action itself within ( ) business days following EPA’S
disapproval and shall notify EPA of that contractOr’s name or
Respondent(s) ‘s name and qualifications within ( ) business days
of EPA’S disapproval.
Within ( ) days after the effective date of this Order, the
RespOndent(s) shall designate a Project Coordinator who shall be,
responsible for administration of all the Respondent(’) (t) (‘)
action . required by the Order. , Respondent (s) shall submit the
‘designated coordinator’s name, ádthess, telephone number, and
qualifications to EPA • To the• greatest extent posSible, the
Project Coordinator shall be present on site or readily available
during site work. EPA retains the right to, disapprove of any
Project Coordinator ‘named by the Respondent(s). If EPA
disapproves of a selected Project Coordinator, Respondent(s) shall
retain a different Project Coordinator and shall notify EPA Of
that person’s name and qualifications within ( ) business days ‘
following EPA’s disapproval’. Receipt by Respondeflt(’)s(’) Project
Coordinator of any notice or communication from EPA relating to
this Order shall constitute receipt by all Respondent(s).
The EPA has designated ______ of the ( Regional Office Name -
• • 9. Emergency and Enforcement Response Branch) , as, its On-Scene
Coordinator (OSC) Respondent(s) shall direct all submissions
required by this Order to the OSC at ( OSC’s address ) (Regions may
specify method of delivery, by ceitified mail, express mail,
or other delivery methods].
3. -, Be Performed
Respond.ut (s) shall perform, at a minimum, the following removal
action:
( This section should provide a brief description consistei t
with section V of the Action Memo and should provide
sufficient detail to permit Respondent ( a) to draft a Work
Plan. Real on, may append their own Statement of Work or WOX
Plan: if thin situation occurs. modify sections 3.1-3.3 as
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• ( The dates of the referenced requiations and quidance
documents may chance depending on future Agency actions. )
3.1 Work Plan and mnniementation
Within ( ) days after the affective date of this Order, the
Respondent(s) shall submit to EPA for approval a draft Work Plan
for performing the removal action set• forth above. The draft Work
Plan shall provide a description of, and an expeditious schedule
for, the action required by this Order.
EPA may approye, disapprove, require revisIons to, or modify the
draft Work Plan. I-f EPA. requires revisions, Respondent(s) shall
submit a revised draft Work Plan within ( ) days of receipt of
EPA’ . notification of the required revisions. Respondent(s) shall
implement the Work Plan as finally approved in writing by EPA in
accordance with the schedule approved by EPA • Once approved, or
approved with modifications, the Work Plan, the schedule, and any
subsequent modifications shall be fully enforceable under this
Order. Respondent(s) shall notify EPA at least 48 hours prior to
performing any on—site work pursuant to the EPA approved Work
Plan. Respondent(s) shall not commence or undertake a’iy removal
actions at the Site without prior EPA approval.
( If a planning period of 6 months exists, include: “If EPA
determines that a Dl nning period of more than 6 months exists
before on-site removal actions viii begin. Respondent(s) shall
Dr. pare an Engineering Evaluation/Cost Analysis fEE/CA) as
required by the NCP at 40 CFR Part 300 . 415(b) (4).” )
(Optional: Regions may specify formal standards for work quality
and quality of deliverables.]
3.2 Health and Safety Plan
Within (X) days after the effective date of this Order, the
Respondent(s) shall submit for EPA review and comment a plan that
ensures the protection of the public health and safety during
performance of on-sit. work under this Order. Thi. plan shall be
prepared in accordance with EPA’ s Standard Operating Safety Guide,
(November 1984, updated July ‘i988). In addition, the plan shall
comply with all current applicable Occupational Safety and Health
Administration (OSEA) regulation.; azardoua Waste Operations and
.ig.ncy ŕsponee; found at 29 CFR Part 1910. (Optional: If EPA
det.r.iM. that it i. apprcpriat., the plan shall also include
contingency planning. Region. may provide nor. detail, I.,g,.,
SPCC, evacuation plans, etc.]. Respondent(s) shall inCOrpOrate
all changes to the plan recommended by EPA, and implement the plan
during the pendency of the removal action.
3 • 3 QualIty Assurance and Sammlina
All sampling and analyses performed pursuant to this Order shall
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conform to EPA direction, approval, and guidance regarding
sampling, quality assurance/quality control (QA/QC),’ data
validation, and chain of custody procedures. Respondent(s) shall
ensure that the laboratory used to perform the analyses
participates in a QA/QC program that complies with the appropriate
EPA guidance.: Respondent(s) shall follow the following documents
as appropriate as guidance for QA/QC and sampling: “Quality
Assurance/Quality Control Guidance for Removal Activities,:
Sampling QA/QC Plan and Data Validation Procedures,” OSWER
Directive Number 9360.4-01; “Environmental Response Team Standard
Operating Procedures,” OSWER Directive Numbers 9360.4-02 through
9360.4-08; [ and the Representative Sampling Guidance for soil,
air, ecology, waste, and water as this information becomes
finalized and available.J ( Check with Regiŕnal QA Of ficčrs-f or
availability and location of these documents. )
upon request by EPA, Respondent(s) shall have éuch a laboratory
analyze samples submitted by EPA far quality-assurance monitoring.
Respondent(s) shall provide to. EPA the quality assur&a .e/quality
control procedures followed by all sampling teams and laboratories
• performing data collection and/or analysis.
Upon request by EPA, Respondent(s) shall allow EPA or its
authorized rePresentatives to take split and/or duplicate samples
of any samples collected by Respondent(s) while performing actions
under, this Order. Respondent(s) shall notify EPA not less than
(1) days in advance of any sample collection activity. EPA shall
have the right to take any additional samples that it deems
necessary.
3.4 Re.pg t.ing
Responc ent (s) shall submit a written progress report to EPA
concerning actionS undertaken pursuant to this Order every (Xth)
day after the date of receipt of EPA’s approval of the WOrk Plan
until termination of this Order, unless otherwise directed by the
OSC (j& jtj ). These reports shall describe all significant
developments during tb - preceding period, inc1’ 1ing the actions
performed and any Problems encountered, analytical data received
during the r eporting period, and the developments aflti9ipated
during the next reporting period, including a schedule of work to
be performed, anticipated problems, and planned resolutions of
past r- nt jcipated problems.
( frmeny. ’t#i y and onntant of tK . z. rta maw h d.ter4’ d on a
Any Respondent md Successor in title shall, at’ least. 30 days
prior to the conveyance of any’ int .rest, in real property at the
sit., give written notice of this. Order to the transferee and
written notice to EPA (and the Statej of the proposed conveyance,
including the name and address of the transferee. The party
• conv.ying such an interest shall require that the transferee
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comply with Section Four of this Order - Access to Property and
Information.
Final ReDort
Within ( ) days after completion of all removal actions required
under this Order, the Respondent(s) shall submit for EPA review
(and approval] a final report summarizing the actions taken to
comply with this Order. The final report shall conform, at a
minimum, with the requirements set forth in Section 300.165 of the
NCP entitled “OSC Reports” ( and for removals that are rnore
extensive. Regions may require compliance with O ER Directive No.
9360.3—03 — “Removal Response Reporting”) . The final report shall
include a good faith estimate of total costs or statement of
actual costs iflcurred in complying with the Order, a listing of
quantities and types of materials removed, a discussion of removal
and disposal options considered for those materials, a listing of
the ultimate destinations of those materials, a presentation of
the analytical results of all sampling and analyses performed, and
accompanying appendices containing all - relevant documentation
generated during the removal action ( ,g, manifests, invoices,
bills, contracts, and permits). The final report shall also
include the following certification signed by a person who
supervised or directed the preparation of that report
Under penalty of law, I certify that to the best of my
knowledge, after appropriate inquiries of all relevant
persons involved in the preparation of the report, the
information submitted is true, accurate, and complete. I am
aware that there are significant penalties for submitting
false information, including the poslibility of fine and
imprisonment for knowing violations.
4 • Access to ProDerty and Information
Respondent(s) shall provide and/or, obtain access to the site and
off-site areas to which access is necessary to implem’ ’tt this
order, and provide access to all records and documentation related
to the conditions at the Site and the action conducted purauant to
this Order. Such access shall be provided to EPA employees,
contractors, agents, consultants, designees, representatives, and
State of ( ) representatives. Th... individuals shall be
permitted to soy, freely at the Site and appropriate off-site
area in order to conduct actions vhich EPA determinó . to be
R_ 55t(s) shall suheit to EPA, ( upon .Cl irjt1uDOn
Mt). the result. of all sampling or tests and all athr data
generated by R..pond.nt (s) or their contractor(s), or On the
Respondent ( 1) • () behalf during implementation of this Order.
Where action under this Order is to be performed in areas owned by
or in possession of someone other than Respondent(s),
Respondent(s) shall use (its/their) beat efforts to obtain all
necessary access agreements within (K) days after the effective
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date of this Order, or as otherwise speçifičd in writing by the
OSC. Respondent(s) shall immediately notify EPA if after using
( its/their ) best efforts ( it isithey are ) unable to obtain such
agreements. Respondent(s) shall describe in writing ( Lts/tbeir )
effort(s) to obtain access. EPA may then assist Respondent(s) in.
gaining access, to the extent necessary to effectuate the removal
actions described herein, using such means as EPA deems
appropriate. EPA reserves the right to, seek reimbursement from
Respondent(s) for all costs and attorney’s fees incurred by the
United States in obtaining access for Respondent(s).
5. Record Retention. Documentation. Availability of Information
Respondent(s) shall preserve all documents and information
relating to work performed under this Order, or relating to the
hazardous substances found on or released from the Site, for, ten
years following completion of the removal actions required by this
Order. At the end of- this ten year period and 30 days before any
document or information is ‘destroyed, Respondent(s) shall notify
EPA that such documents and information are available to EPA for
inspection, and upon request, shall provide the originals or
copies of such documents and information to EPA. In addition,
Respondent(s) shall provide documents and information retained
under this Section at any time ‘before expiration of the ten year.
period at the written- request Of EPA. . ‘
Respondent(s) may assert a business confidentiality claim pursuant
to 40 C.F.R. S 2.203(b) with -respect to part or all of, any
- information submitted to EPA pursuant to this Order, provided such
claim is allowed by section 104(e) (7) of CERCLA,42 U.S.C. S
9604 (e) (7). (Optional: “Ana1y ical and other data specified in
section 104(e) (7) (F) of CERCLA shall not be claimed as
confidential by the Respondent(s) .“ EPA shall only disclose
information covered by a business confidentiality claim to the
extent permitted by, and by means of the procedures set forth at,
40 C.F.R. Part 2, Subpart B.”] If nO such Olaim accompanies the
information when it is received by EPA, ‘EPA may make it available
to the public without further notice to Respondent(s). -
[ optional: “Respondent(s) shall maintain a running log of
privil.g.d documents on a document-by-document basis, containing
the date, author(s), addressee(s), subject, the privilege or
grounds claimed ( .g., attorney work product, attorney-client),
and th f ual basis for assertion of the privilg.. -
Rupond.flt (u) shall keep the “privilege log” on file md available
for ‘inepsation. EPA may at any t im. challags claim, of privilege
through negotiations or othervis. as provided by law or the
Federal Rules. of Civil Procedure.”]
6 • Off-Site Shi nts
All hazardous substaflcs, pollutants or - contaminants removed ‘of f-
site pursuant to this Order for treatment, storage, or disposal
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shall be treated, stored, or disposed of at a facility in
compliance, as determined by EPA, with 42 U.S.C.S 9621(d) (3) and
the EPA “Revised Procedures for Implementing Off-Site Response
Actions,” OSWER Directive Number 9834.11, November 13, 1987.
Regional Offices will provide information on the acceptability of
a facility under section 121(d) (3) of CERCLA and the above
- directive.
( Unless imDracticable. Drior notification of out-of-state waste
shipments should be given consistent with OSWER Directive 9330.2 -
QLJ
7. CoaDliance With Other Laws
Respondent shall perform all actions required pursuant to this
Order in accordance with all applicable local; state; and federal
laws and regulations except as provided in CERCL section 121(e)
and 40 C.F.R. section 3OO.4l5(i). In accordance with 40 C.F.R. S
300.415(i), all on—site actions required pursuant to this Order
shall, to the extent practicable, as determined by
considering the exigencies of the situation, attain applicable or
relevant and appropriate requirements (ARARs) under federal
environmental, state environmental, or facility siting laws. (see
“The Supezfund Removal Procedures for Consideration of ARARS
During Removal Actions,” OSWER Directive No. 9360.3-02, August
1991). (Optional: “Respondent(s) shall identify ARABs in the Work
Plan subject to EPA approval.”) -
8. eraenáv ResDonse and Notification of Releases
If any incident, or ‘change in site conditions, during the actions
conducted pursuant to this Order causes or threatens to cause an
additional release of hazardous substances from the Site or an -
endangerment to the public health, welfare, or the environment,
the Respondent(s) shall immediately take all appropriate action.
The Respondent(s) shall take these actionS in accordance with all
applicabl, provisions of this Order, including, but not limited to
the Health and Safety Plan, in order to prevent, abate or minimize
such releas. or endangerment caused or threatened by the release.
Respondent(s) shall also immediately notify the OSC or, the
event of his/her unavailability, shall notify the Regional Duty
Officer ( Appropriate Regional Office - e.g.: Emarçencv Planning
and Response Branch. EPA Reaion. telethone number. and the EPA
Rffigion 1 gO’ CY of the incident or
sit. coi ions.’ If Respondent(s) fail (s) to take action, then
EPA mey respond to the r.lrn. or .ndsng.raent and rserve the
right to pursu. coat recovery.
In addition, in the event of any release of a hazardous substance,
Respondent(s) shall immediately notify EPA’s osc ( insert Reaional
spill ione number ) and the National Response Center at telephone
number (800) 424—8802. Respondent(s) shall submit a written
report to EPA within ( seven t’71 ) days after each release, setting
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forth the events that occurred and the measures taken or to ’be
taken to mitigate any release or endangerment cause4 or threatened
by the release and to prevent,the reoccurrence of such a release.
This reporting requirement is in addition to, not in lieu of,
reporting under’CERCLA section ‘103(c) andsection. 304 of the
Emergency Planning and Community Right-To-Know Act,of 1986, 42
U.S .C. Sections 11001 g.
VII. AUTHORITY OF THE EPA ON-SCENE COORDINATOR
The OSC shall -be responsible for overseeing’ the proper and
complete implementation of, this Order. The OSC ‘shall have the
authority vested in an OSC by the NCP, 40 CFR 300.120, including
the authority to halt, conduct, or direct any action required by’
this Order, or to direct any other removal action undertaken by
EPA or Respondent(s) at the Site. Absence of the OSC from the
Site shall not be cause. for stoppage of’ work unless specifically
directed by the OSC.
EPA and Respondent(s) shall have the right to change their
designated OSC or Project Coordinator. EPA shall notify the
Respondent (a), and Respondent(s) shall notify EPA ( insert
timeframe of notification) , before such a change is made.
Notification may initially be made orally , but shall be followed
promptly by written notice.
VIII. KIPORCENEII?: P LTI!S FOR NONCOI(PLThNCE
Violation of any provision of this Order may subject Respondent(s),
to civil penalties of up to twenty-five thousand dollars ($25,000)
per violation per day, as provided in section 106(b) (1) of CERCLA,
42 U.S.C. S 9606(b)(1). Respondent(s) may also be subject tq
punitive damages in an amount up to three times the amount of any
cost incurred by the United States as a result of such violation,
as provided in section 107(c) (3) of CERCL&, ‘42 U.S.C. S
9607(c) (3). Should Respondent(s) violate this Order or any
portion hereof, EPA may carry out the required actions
unilaterally, pursuant to section 104 of CERcLA, 42 U.S.C. S 9604,
and/or may seek judicial enforcement of, this Order pursuant’ to
section 106 of.CERcLA, 42 U.S.C. S 9606.
IX. RI U R 5 01 uvsaSIGET COSTI
Resp: .nd nt C..) shall reimburse EPA, upon written d and, ‘for all
r..pons. costs incurred by thern Uni tad Stats in OV.reSing
Respondent (“) (a) (‘) implmw tation of the requirements of this
Order. EPA may aubsit to Respondent(s) on a periodic ba is a bill
for all’ response costs incurred by the United States with respect
to this Order • EPA’s ( l’inandial Management System summary data or
SUCh other &omDCy f lame of Regional) coat sn. ary) ’ as certified by
EPA, shall- serve as the basis for payi.nt demands. ( Note: At the
same time th. order is iIsued to the Resr,ondent ( a). Regions’ may
isaue a D —and Letter for past costs. )
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/
Respondent(s) shall, within (K) days of receipt’of the bill, remit
a cashiers or certified check for the amount of those costs made
payable to the “Hazardous Substance Superfund,” to the following
address:
( Regional Lock Box ) -
( Bank’s Address )
Respondent(s) shall simultaneously tra ismit a copy of the check to
EPA ( Regional Address) . Payments shall be designated as
“ (Resvonse Cpsts)-(S.jte Name ) site” and shall reference the
payor’s name and address, the EPA site identification number
(number), and the docket number of this Order.
Interest at the rate established under section 107(a) of CERCLA
shall begin to accrue on the unpaid balance from the day of the
original demand notwithstanding any dispute or objection to any
portion of the costs.
X. RZS ThTION 01 RIGHTS
Except as specifically provided in this Order, nothing herein
shall limit the Power and authority of EPA or the United States to
take, direct, or order all actions necessary to protect public
health, welfare, or the environment or to prevent, abate, or
minimize an actual or threatened release of hazardous substances,
pollutants or contaminants, or hazardous or solid waste on, at, or
from the Site. Further, nothing herein shall prevent EPA from
seeking legal or equitable relief to enforce the terms of this
Order, from taking other legal or equitable action as it deems
appropriate and necessary, or from requiring the Respondent(s) in
the future to perform additional activities pursuant to CERCLA or
any other applicable law. EPA reserves the right to bring an
action against Respondent(s) under section 107 of CERCL&, 42
U.S.C. section 9607, for recovery of any response costs incurred
by the United States related to this Order or the Site and not
reimbursed by Respondent(s). (Optional: Regions may add more
specific language.] (Note: Only a Natural Resource Trustee has the
authoritv... ...yjjy . claim for natural resource damaces. )
XI • Orama L TV5
By issuance of this Order, the United States and EPA assume no
liaMlitX for injuries or damages to persons or propeity resulting
frm any iot. or omissions of Respondent(s). The united States or
EPA shall not be deemed a party to any contract .nt.rsd into by
the Respondent(s) or ( its/their ) directors, officers, employees,
agents, successors, representativeQ, assigns, contractors, or
consultants in carrying out act ions pursuant to this Order.
This Order does not constitute a pre-authorization of funds under
section 111(a) (2) of CERCL&, 42 U.S.C. S 9611(a) (2).
Nothing in this Order shall constitute a satisfaction of or
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release from’any claim or cause of.action against the
Respondent(s) or any person not a ‘party tp this Order, for any
liability such person may have under CERCLA, other statutes, or
the common law, including but nat limited to any claims of the
United States for costs, damages and interest under section 106(a)
and 107(a) of CERCLA, 42 U.S.C. S 9606(a) and 9607(a).
- XII. - MODIFICATIONS
Modifications to any plan or schedule ( or the attached EPA
Statement of Work ) may be made in writing by the’OSC or at the
OSC’s’ oral direction. If the OSC makes an oral modification, it
will be memorialized in writing within (K) days; provided,
however, that the effective date of the modification shall be the
date of the OSC’s oral direction. The rest of the Order, or any
other portion of the Order may only be modified in writing by
signature of the ( delegated signatory or designee of EPA Regi9fl
( number)) .
If Respondent(s) seek(s) permission to. deviate from any apprŕved -
plan -or schedule (or Statement of Work), Respondent(’ ) s(’) project
Coordinator, shall submit a written request to EPA for approval
outlining the proposed modification’ and its basis.
No informal advice, guidance, suggestion, or comment . by EPA
regarding reports, plans; specifications, schedules, or any other
writing submitted by the Respondent(s) shall relieve the
Respondent(s) of ( its/their ) obligation(s) to obtain such formal
approval, as may be required by this Order, and to comply with, all
- requirements of this Order unless it is formally modified.’
XIII’. NOTICE 07 COIIPLI’IION
When EPA determines, after EPA’S review of the Final Report, that
all removal actions have been fully p.rformOd in accordance with
this Order, with the exception of any continuing obligations
required by this Order , including . (Regiŕna should nrovide a list
of such obligations ) EPA viii’ provide nOtice to the Respondent(s).
If EPA determines . that any removal actiOns’ have not been completed
in accordance with this 6rder, EPA viii notify the Respondent (a),
provide’ a . list of the deficiencies, and require that Respondent(s)
modify the Work Plan to correct such deficiencies. The
Respondent(s) shall implement the widifisd and approved Work Plan
afld Shill .ü it a modified Final Report in accordance with the
EPA notice • Failur, by Respondent (0) to implement the approved
modifid Work Plan shall be a violation of this Order.
XI V.
rJ: ;.p u s : .-:
The Administrative Record supporting these removal actions iS
available for review at ( Insert Region-specific logistical
information for review of the record).’ (Optional: An index of the
Administrative Record is attached ( if available at th, time of
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issuance ] .
XV. OPPORTUNITY TO CONPER
Within ( ) days after issuance of this Order, Respondent(s) may
request a conference with EPA. Any such conference shall be held
within (K) days ( prior to/after ) the effective date unless
extended .by agreement of the parties. At any conference held
pursuant to the request, Respondent(s)- may appear in person or be
represented by an attorney or other representative.
If a conference is held, Respondent(s) ‘may present any
information, arguments or comments regarding this Order.
Regardless of. whether a - conference is held, Respondent(s) may
submit any information, arguments or comments in writing to EPA
withjn (K) days following the conference ( a or within i’Xl days
following issuance of the Order if no conference is reauested) .
[ Optional: Regions may specify the scope of issues which can be
discussed during the conference, considering site—speóific
circumstances.]. This conference is not an evidentiary hearing,
does not constitute a proceeding to challenge this Order, and does
not give Respondent(s) a right to seek review of this Order.
Requests for a conference, or any written submittal under this
paragraph, shall be directed to ( Name of Individual) , Assistant
Regional Counsel, at ( telephone number) , ( gg u).
xixi iuci
( Note: Regions are encouraged to include the provision in the last
oars gra ph. It requires Resr,ondent ( a) to carry the standard. form
business liability insurance policy IComprehenaive General
Liability policy) or to supplement the cov.raae already
a1, ta1,, A hi, D arw ,iA n # aI lltalthDiri tra#vti ra nr -
subcontractors. This policy provides coverage for liability
clp1w s made bY third r,arties who are in’jured by PRP removal
actions required by EPA at the Site. The coveraae ensures that
third parties are compensated for such injuries: that the PRP
wars th. cost of such protection: and that the United States runs
less risk of bearing litiga ion costs aria from liability suits
pgalna it..) ( Note: This policy tyolcally does not cover
liability caused by releases of pollutants: such coverage
( NqtpiIn-i .s vhftçe Reqppn n (a I.oA1atratečsJ thlt ey dQ
met hawk I &. auff1aL.’ t beth to nd the re aI a.nd bta4n the
optl al insurance policy: or in cases whey. Jn.urebl. iimka are
.a1 and of short duration: or if adequate insurance coverage
eziata: or if Respondent(s) (hasihave) the financial caoacity to
self-insur, and agree to do so. Regions m*y consider amending the
Order to reduc. policy limits - or to waive - the insurance -
i quiremafltpr om1 ed 1 in Jga ç 4on froj he order . )
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At least ( seven (7) ) days prior to commencing any. on-site work
under this order, the Respondent(s) shall secure, and shall
maintain for the duration of this Order, comprehensive general
liability insurance and automobile insurance with limits of (XXXX),
million dollars, combined single limit. Within the same time
period, the Respondent(s) shall provide EPA with certificates of
such insurance and a copy of each insurance policy. If the
Respondent(s) demonstrate(s) by evidence satisfactory to EPA that
any contractor or subcontractor maintains insurance equivalent to
that described above, or insurance covering the same risks but in
a lesser amount, then, the Respondent (s) need provide only that
portion of the insurance described above which is not,maintained
by such contractor or subcontractor.
XVII. ADDITIONAL REXOThL ACTIONS
(This section is optional]
(Optional: If EPA determines that additional removal actions not
included in an approved plan are necescary to protect public
health, welfare, or the environment, EPA will notify Respondent(s)
of that determination. Unless otherwise stated by EPA, within
• ( thIrty (301 ) days of receipt of notice from EPA that additional
removal actions are necessary to protect public-health, welfare,
or the environment, Respondent(s) shall submit for approval by EPA
a Work Plan for the additional removal actions. The plan shall
conform to the applicable requirements of sections (XIXKZ) of this
Order. Upon EPA’s approval of the p1ar pursuant to Section
VI.3.l-Work Plan and Implementation, Re pond.nt( .) shall implement
the plan for additional removal actions in accordance with the
provision, and schedule Oontained therein.. ThiS section does not•.
alter or diminish the OSC’s authority to make oral modifications
to any plan or Schedule pursuaŕt to Section XII.].
XVIII. S vs )RILITT
If a court issues an order that. invalidate, any provision of this
Order or finds that Respondent(s) has sufficient cause not to
comply with one or more provisions of this Order, Reapone --t (a)
shall remain bound to comply with all provisions of this urder not
invalidated or determined to be subject to a sufficient cause
defens. by the court’s order.
XIX.
1
( Ia i y in rt spsciflc pract1 a I laxidnaŕie. ) Tht. Ord.r
shall be effective ( ) days after the Order is .ignd by the
Regional Administrator. (optional: unless a conference is
requested as provided herein. If a conference is requested, this
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Order shall be effective on the (K) day following the day of the
conference unless modified in writing by EPA.]
IT IS SO ORDERED
BY:_________________ DATE:___________________
Name
Regional Administrator ( or desi nče )
Region ( Number )
U.S. Environmental Prot ection Agency
EFFECTIVE DATE:_________
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DELEGATIONS MANuAL :2C3 TN 350
CLEAN AIR ACT
7-49. Emeraency Administrative Powers
1. AUTHORITY . To make findings, to consult with sta:e ad local
authorities, and to issue emergency administrative orders ursuan
to the Clean Air Act (CAA).
2. TO WHOM DELEGATED . Regional Administrators and Assistant
Administrator for Enforcement and Compliance Assurance.
3. LIMITATIONS .
a. Regional Administrators must consult with the Assistant
Administrator for Enforcement and Cor’ipliance Assurance Cr his/her
designee before issuing orders.
b. The Assistant Administrator for Enforceie t and
Compliance Assurance must notify any affected Regional
Administr4tors cr their designees before issuing orders.
4. REDELEGATION AUTHORITY . This authority may be redelegated.
5. ADDITIONAL REFRENCES .
a. Section 303 of the Clean Air Act.
b. For referral of emergency Temporary Restraini:g Orders,
see the Chapter 7 delegation entitled “Emergency TRO’S.’
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DELEGATIONS :2:: 350
SOLID WASTE DISPOSAL ACT (SWDA )
8-22-A. Determinations of Imminent and Substantial E daz erment
1. AUTHORITY . Pursuant to the Solid Waste Disposal A= SWDA)
to make determinations that the handling, storage, zreacment,
transportation, or disposal of any solid waste or hazard: s waste
may present an imminent and substantial endangerment co zealth or
the environment.
2. TO WHOM DELEGATED . Regional Administrators.
3. LIMITATIONS . This authority shall be exercised s ect to
directives issued by the Assistant Administrator for E :rcement
and Compliance Assurance. Regional Administrators mus: consult
with the Assistant Administrator for Enforcement and C:liance
Assurance or designee when exercising this authority.
4. REDELEGATION AUTHORITY . This authority may be redee ated.
5. ADDITIONAL REFERENCES . Section 7003(a) of SWDA; asz see the
Chapter 8 delegations entitled “Abatement Acticns Through
Unilateral Orders” and “Abatement Actions Through Conse : rders.”
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DELEGATIONS MANUAL :2:: 350
TOXIC SUBSTANCES CONTROL ACT
12-3-F. in ninent Hazard Actions (Cont’d )
e. The Assistant Administrator for Enforceez: and
Compliance Assurance and the Regional Administrators rnus: a-;e the
concurrence of t e General Counsel before exercis: the
authorities: (1) to con nence a civil action pursuant tc Se::ion 7
of TSCA: (2) to request the Attorney General to ac:ear and
represent the Agency; or (3) to initiate an appeal or re esz the
Attorney General to do so.
f. Any exercise of the appeal authority will be ormed
jointly by the General Counsel and the Assistant Adminis: :cr for
Enforcement and Compliance Assurance.
4. REDELEGATION At. ORITY . This authority may be rede.e .ted.
5. ADDITIONAL RE ER!NCES .
a. Section 7 o TSCA.
b. The Chapter 12 delegation entitled “In nine : Hazard
Determinations” addresses the authority to make an adminisz:ative
determination that an imminent hazard exists.
c. The Chapter 12 delegation entitled “Emergez:-. R0’s”
covers the authority to refer emergency Temporary Res:rairiing
Orders.
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DELEGATIONS MANUAL , :2CC N 350
THE COMPREHENSIVE E WIRON NTAL RESPONSE, COMPENSAT:CN ND
LIABILITY ACT (CERCLA )
14-15. Guidelines for Use of Izmrtinent Hazard, Enforce .e :
and Emeraencv Response Authorities
1. AUTHORITY . To establish, modify and publish guide1i es for
using the imminent hazard, enforcement and emergency : sponse
authorities under the Comprehensive Environmental Res onse,
Compensation and Liability Act (CERCLA) and other existing szatutes
administered by the Agency.
2. TO WHOM DELEGNL’ED . Assistant Administrator for E :rcement
and Compliance Assurance.
3. LIMITATIONS . The Assistant Administrator for Enfcr eent and
Compliance Assurance will obtain the advance concurrence of the
Assistant Administrator for Solid Waste and Emergency Response
before exercising this authority.
4. REDELEGATION AUTHORITY . This authority may be rede.e- a:ed.
5. ADDITIONAL REFERENCES . Section 106(c) of CERCLA.
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DELEGATIONS MANUAL :z: TN 350
SOLID WASTE DISPOSAL ACT (SWDA )
8-22-B. ba ement Actions Throuch Unilateral C: rs
1. AUTHORITY . After giving notice to the affected Sta:e, :o take
administrative ac:ion pursuant to the Solid Waste Discsal Act
(SWDA) including, but not limited to, issuing such u ±.lateral
orders as may be r.ecessary to protect health and the envir3nment.
2. TO WHOM DELEGATED . Regional Administrators.
3. LIMITATIONS . This authority shall be exercised s b ect to
directives issued by the Assistant Administrator for E crcement
and Compliance Assurance. Regional Administrators mus: consult
with the Assistant Administrator for Enforcement and Cc p1iance
Assurance or designee and the delegatees of the Regional
Administrators must consult with Regional Counsels Cr their
designees when exercising this authority.
4. REDELEGATION AUTHORITY . This authority may be redeegated.
5. ADDITIONAL RE RENCES . Section 7003(a) of SWDA.
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DELEGATIONS M _NtJAL :z::
S 1:/94
SOLID WASTE DISPOSAL ACT (SWDA )
8-22-C. Abatement Actions Throuah Consent Orders
1. AUTHORITY . After giving notice to the affected Sta:e, z take
administrative acticns pursuant to the Solid Waste D .s:osal Act
including, but not limited to, issuing such orders on : sent as
may be necessary cc protect health and the environment.
2. TO WHOM DELEGATED . Regional Administrators.
3. LIMITATIONS .
a. Regional Administrators must obtain the advance
concurrence of the Assistant Administrator for Enforcernent and
Compliance Assurance or delegatee, and delegatees of the Regional
Administrators must consult with the Regional Counsels :r their
designees before exercising any of the above authorities.
b. The Assistant Administrator for Enforcezen: and
Compliance Assurance nay waive the advance concurrence rec-.:rements
by memorandum.
4. REDEI EGATION AtTHORITY . This authority may be re± ecated.
5. ADDITIONAL RE ZRENCES. . Section 7003(a) of SWDA.
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DELEGATIONS MANUAL 2CC TN 350
SAFE DRINKING WATER ACT (SDWA )
9-17. Emer encv Administrative Powers
1. AUTHORITY . To make findings, take action, de:e.ine the
practicality of consultation, consult with States a. local
authorities, and issue administrative orders pursuant t: Section
1431 of the Safe Drinking Water Act (SDWA).
2. TO W}IOM DELEGATED . Regional Administrators and sistant
Administrator for Enforcement and Compliance Assurance.
3. LIMITATIONS . The Assistant Administrator for Enfcrce ent and
Compliance Assurance may exercise these authorities multi-
Regional cases or cases of national significance. In addL,:ion, the
Assistant Administrator for Enforcement and Compliance Assurance
must notify any affected Regional Administrators, the Assistant
Administrator for Water, or their designees when exe:: i g the
authority to issue orders.
4. REDELEGATION ACTHORITY . This authority may be rede. ated.
5. ADDITIONAL REFERENCES . Section 1431 of SDWA.
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DELEGATIONS MANUAL :2: TN 350
5 / 1:! 4
TOXIC SUBSTANCES CONTROL ACT
12-3-F. liruninent Hazard Actions
1. AUTHORITY . To commence an imminent hazard act::: :n an
applicable District Court of the United States pursuant zc Section
7 of the Toxic Substances Control Act (TSCA); to direct a:::rneys
of the Environmental Protection Agency to appear and re ese:t the
Administrator in any such action; to request the AttOrney eneral
to a pear and represent the Agency in Section 7 ac::::s; to
negotiate and settle these actions under TSCA; to i:i:ia:e an
appeal of Federal District Court or Circuit Court of A oeals
decisions rendered in such actions; to represent the Agency ±n such
an appeal; and to request the Attorney General to i ..i:iate an
appeal and represent the Agency in such an appeal.
2. TO WHOM DELEGATED . The Assistant Administra::r for
Enforcement and Compliance Assurance and the Re iona1
Administrators.
3. LIMITATIONS .
a. Prior to ccnmiencing an iniminent hazard actior.. this
delegation, a determination that an imminent hazard exis:s under
TSCA Section 7 must be made pursuant to the Chapter 12 de .e ation
entitled ‘ t lrruninent Hazard Determinations.”
b. The Assistant Administrator for Enforce.e :: and
Comp-liance Assurance must consult with the Assistant Ad.s:rator
for Prevention, Pesticides, and Toxic Substances ar. : the
appropriate Regional Administrator or their designee pr:or to
exercising this authority.
c. The Regional Administrator must consult W.fl the
Assistant Administrator for Enforcement and Compliance Ass.irance
a thc: ’ sistant Administrator f )r Prevention, Pesticides, and
Toxic Substances or their designee before exercisi.g this
authority.
d. The Regional Administrators may only exercise this
authority to request the Attorney General to appear and represent
the Agency in imminent hazard actions and to negotiate an: settle
these •actions.
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