&EPA
Federal Facility
Reference Documents
Volume II
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APPENDIX E
EPA UHOTLINEIS ASSISTANCE
Toll-Free Numbers Offered by EPA Headquarters
RCRA/Superfund Hotilne —
National Toll—Free 800-424-9346
Washington, D.C., Metro 202—382-3000
EPA’s largest and busiest toll-free number, the RCRA/Super-
fund Hotline answers nearly 100,000 questIons and document
requests each year. Hotline specialists answer regulatory
and technical questions and provide documents on virtually
all aspects of the RCRA and Superfund programs. Because of
the complexity and changing nature of these programs, the
hotline is used widely by the regulated community, people
involved In managing and cleaning up hazardous waste,
federal, state, and local governments, and the general
public. The RCRA/Superfund Hotline can be reached Monday
through Friday from 8:30 a.m.—4:30 p.m. Eastern Standard
Time (EST).
o NatIonal Response Center Hotline —
National Toll-Free 800-424-8802
Washington, D.C. Metro 202—426-2675
Operated by the U.S. Coast Guard, the National Response
Center Hotline responds to all kinds of accidental
releases of oil and hazardous substances. Callers should
contact this hotline to report chemical spills. The
National Response Center Hotline is available 24 hours
a day, seven days a week, every day of the year.
O The Emergency Planning and Community Right—to—Know
TTitle III ) Hotilne —
National Toll—Free 800-535-0202
Washington, D.C., Metro and Alaska 202—479-2449
The Title III Hotline has been in operation since late 1985,
responding to questions concerning community prepared-
ness for chemical accidents. The Superfund Amendments
and Reauthoriaztlon Act (SARA) has increased the CEPP
Hotline’s responsibilities, which now also Include
Emergency Planning and Community Right—to—Know, SARA
Title III, questions and requests. The CEPP Hotline,
which complements the RCRA/Superfund Hotline is main-
tained as an Information resource rather than an
emergency number. Calls are answered Monday through
Friday from 8:30 a.m.—4:30 p.m. EST.
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o NatIonal Pesticides TeleconlnuniCatlO! !
Network (NPT fl —
National Toll—Free 800-858-7378
(858 -P-E—S—T) Texas 806-743-3091
Operating 24 hours a day, seven days a week, every day
of the year, the NPTN provides information about pesti-
cides to the medical, veterinary, and professional
convnunities as well as to Fedal agencies and the general
public. Originally a service for physicians wanting
information on pesticide toxicology and on recognition
and management of pesticide poisonings, the NPTN has
expanded to serve the, public and Federal agencies by
providing impartial Information on pesticide products,
basic safety practices, health and environmental effects,
and cleanup and disposal procedures. Staffed by pesticide
specialists at Texas Tech University’s Health Sciences
Center School of Medicine, this hotline handles about
18,000 calls each year.
° Small Business Hotline —
Rational Toll-Free 800-368-5888
Washington, D.C., Metro 703—557—1938
Sponsored by the EPA Small Business Ombudsman’s Program,
this hotline assists small businesses in complying with
environmental laws and EPA regulations. The Small
Business Hotline gives companies easy access to the
Agency, and investigates and resolves problems and
disputes with EPA. Acting as a liasion with Agency
program offices, the hotline ensures that EPA considers
small business issues during Its normal regulatory
activities. Federal agencies with only limited environ-
mental activities or just a few, minor facilities may
want to consider utilizing this service. The Small
Business Hotline. operates Monday through Friday from
8:30 a.m.—5:O0 p.m. EST, handling over 7,000 InquirIes
each year.
° Safe Drinkln9 Water Hotline —
National TOl 1 —Free 800-426—4791
Washington, D.C., Metro 202-382-5533
The Environmental Protection Agency’s Safe Drinking
Water Hotline started operating In July, 1987. Its
primary function Is to assist the public and the
regulated community, lncludi:ng Federal facilities, in
understanding EPA’s regulations and programs developed
in response to the Safe Drinking Water Act M endments
of 1986., The Hotline service provides Information on
EPA’s drinking water programs, including the Public
Water Supply (PWS) and UndergroUnd Injection Control
(UIC) Programs. The Hotline operates Monday through
Friday (except Federal Holidays) from 8:30 a.in.—4:30
p.m., East Coast Time.
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O Inspector General ‘s Whistle Blower Hotline —
National 1011—Free 800-424-4000
Washington, D.C., Metro 202-382—4977
The EPA Inspector General ‘s Office maintains the
Whistle-Blower Hotline to receive reports of Agency—
related waste, fraud, abuse, or mismanagement from
the public and from EPA and other government employees.
EPA employees may make complaints or give information
to the Inspector General ‘s office confidentially and
without fear of reprisal. The Whistle—Blower Hotilne
is staffed to answer calls In person from 10:00 a.m. —
3:00 p.m. EST, Monday through Friday at other times,
callers may leave a message to be answered during the
next work day. This hotline handles about 1,500 calls
each year.
Comercial Numbers Offered by EPA Headquarters
o TSCA Assistance Office —
202-554—1404
The TSCA Assistance Office provides infor-
mation on TSCA regulations to the chemical Industry,
labor and trade organizations, environmental groups,
Federal facilities, and the general public. Technical
as well as general information Is available. To help
facilities comply with TSCA, a variety of services are
offered, including TSCA regulation and support documents,
a bi—rnonthly newsletter, publications, and audiovisual
material. In addition, the TSCA Assistance Office will
arrange meeting between EPA and Industry to discuss and
clarify TSCA regulations and arrange for Agency speakers,
upon request. The ISCA Assistance Office now handles
about 2,500 calls a month, and can be reached from 8:30
a.m. — 5:00 p.m. (SI, Monday through Friday.
O Control Technology Center Hotline —
919-541-0800
A component of EPA’s Air Toxics Strategy, the Control
Technology Center Hotline provides information to state
and local pollution control agencies on sources of
emissions of air toxics. Sponsored by EPA’s Office of
Air Quality Planning and Standards In Research Triangle
Park, NC, this hotline takes about 100 calls a month, and
can be reached from 8:00 a.m. — 4:30 p.m. EST, Monday
through Friday.
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° Public Information Center (P1Cj —
202-829-3535
EPA’s Public Information Center (P lC) answers Inquiries
from the public and Federal agencies about EPA, Its pro-
grams, and activities, and offers a variety of general,
nontechnical information materials. The public Is
encouraged to reach the PlC hrough Its commercla1 tele-
phone line or by writing to PlC (PM-21 ’l ’B), U.S. EPA,
401 M Street, SW, Washington, D.C. 20460.
Toll—Free Numbers Offered, by EPA’s Regional Offices
o General Information Numbers
Five of EPA’s 10 Regional Offices offer toll-free
numbers providing the public general Information on
Agency programs, and making referrals as needed. These
general infOrmation numbers are:
o EPA Region 3, PhiladelphIa, PA
800-438—?474 for all Region 3 states (DC, DE,
MD, PA, VA, WV)
O EPA Region 4, Atlanta, GA
800-282—0239 in.
800—241-1754 in other Region 4 states
(AL, FL, KY, 145,, NC, SC, TN)
o EPA Region 5, Chicago, IL
800-572—2515 In IL
800—621-8431 In other Region 5 states
(IN, MI, MN, OH, WI)
O EPA Region 7, Kansas City, KS
(Will offer an 800 number by early June
• 1987, servIng the states of IA, KS, MO,,
and NE)
• EPA Region 8, Denver, CO
800—332—3321 In CO
800—525—3022 In other RegIon 8 states
(MI, ND, SD, UT, WY)
O SpecIalized Information Numbers —
Several EPA Regional Off Ices sponsor specialized
Issue-specific toll-free numbers to meet the demands
of frequent regional Inquiries.
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Hotline
Toll-Free & Commercial #s
Description
Region 1
Unleaded
Fuel Hotline
800-631-2700 (MA)
800-821-1237 (other
Region 1 states — CT,
ME, NH, RI, VT)
Enforcement-related
line takes calls about
tampering with vehicles,
pumps, and other prob—
leins related to un-
leaded fuels.
Northeast
Industrial
Waste
Exchange
800-237-2481
(ME, VT, NH, MA, RI,
CT, PA, NJ, DE, VA,
WV, OH, MD, MI,
Washington, D.C.)
315—422-6572
(other states)
Infomation on waste ex-
change in the Northeast
but with access to other
areas. Joins those who
generate waste with
those who desire waste.
Region 2
Superfund
Hoti me
800—346-5009 (NJ)
800—722-1223 (NY)
Answers local hazard-
ous waste questions.
Region 3
Waste
Minimization
Hotline
800—334-2467 (PA)
800—826-5320 (other
Region 3 states)
Technical assistance
and education on waste
minimization.
Region 7
Iowa
RCRA
Hotilne
Region 7
Missouri
Superfund/
Dioxin
Hoti me
800-223-0425
(Iowa only)
800-892-5009
(Missouri only)
Information on Imple-
mentation of RCRA In
Iowa
Information on dioxin
and related concerns
for contaminated areas
in Missouri
Commercial Numbers Offered by EPA’s Regional Offices
o A number of EPA Regional offices offer commercial
numbers for specific issues or sites.
Commercial I
Region 1
(Maine)
McKin Site
Hotline
207—657—2087
Information on clean-
up efforts at Super—
fund site In Grey,
ME.
Hotline
Description
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Region 6 214-767—2666 Responds 24 hrs. a
RCRA On—Scene (AK, LA, NM, day to questions and to
Coordinatorss OK, TX) reports of chemical
Hotline spills, other emer-
gencies.
Region 9 415—974—7473 Information to Region 9
RCRA (AZ, CA, HI, NV, states on RCRA issues.
Hotline Guam, American
Samoa, Pacific
Trust Territories)
I
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presidential documents
(3195—01—M I
Title 3—The President
Executive Order 120U October 13, 1978
F.dval CompG ca Wbh PoIMisn Conirol St d da
By the authority vested in me as President by the Constitution and
statutes of the United States of Ameriea, induding Section 2! of theTozic
Sqbsiances Control Act (IS U.S.C. 262!). Section 515 of the Federal Water
Polluuon Control Act. as amended (33 U.S.C. 1323). Section 1447 of the
Public Health Service Act. as amended by the Safe Drinking Water Act (42
U.S.C. 300j -6), Section 118 of the Clean Air Act, as amended (42 U.S.C.
7418(b)). Section 4 o( the Joue Control Act of 1972 (42 U.S.C. 4903).
Section 6001 of the Solid Waste Disposal Act, as amended (42 U.S.C. 696!).
and Section 301 of Title 3 of he United States Code, and to ensure Federal
compliance with app1i b1c pollution control standards, it is hereby ordered as
follows:
1-1. 4ppIAc Mly of PolLuLion CoMral Ss ’d. ’i&
1.101. The head of each E.aecuuve agency is mponsible (or ensuring that
all necessary actions are taken for the prvvention control, and abatement of
environmental pollution with respect to Federal (aciuiuea and activities under
the control of the agency.
1-102. The head of each Executive agency s responsible for compliance
wnh applicable poUuuon control uan ards, induding those established pwsu.
ant to, but not limited to. the followmg
(a) To c Substances Control Act (15 U.S.C. 260! it i.q.).
(b) Federal Water Pollution Control Act. as amended (33 U.S.C. 1251 ii
uq.).
(c) Public Health Service Act, as amended by the Sate Drinking Water Act
(42 U.S.C. 300(irsq.).
(d) Clean Air Act. as amended (42 U.S.C. 7401 .g seq.).
(e) Noise Control Act of 1972 (42 U.S.C. 490! dM9.).
(1) Solid Waite Disposal Act. as amended (42 U.S.C. 6901 it seq.).
(g) Radiation guidance pursuant w Section 274(h) of the Atomic Energy
Act of 1934. as amended (42 U.S.C. 2021(h): see also, the Radiation Protec.
uon Guidance to Federal Agencies for Diagnostic X Rays approved by the
President on january 26. 1973 and published at page 4377 of the Feouu.
R&czrru on February 1. 197*L
(It) Marine Protection. R i search, and Sanctuaties Act of 1972, as amended
(33 U.S.C. 1401, 1402. 1411—1421. 1441—1444 and 16 U.S.C. 1431—1434).
6) federal Insecticide. Fungicide. and Rodencicide Act. as amended (7
U.S.C. 136 ii seq.).
1—lOS. ‘ Applicab1e polluiion control ,tandards means the same sthstan.
live. procedural. and other rcquiremcsiu that would apply to a privale person:
1-2. A cnq CoordiaoAion.
1-201. Each Eaecudve agency shall cooperate with the Administrator of
the EnvironmenL*1 Protection Agency. hcrvinatter referred to as the Adminis-
PIUU IIGISSU. VOl. 13. NO. 5Il —TUUDAY, OCTOSU U, I ?5
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47708 THE PIESIDEP4T
trator. and St. ie. inieriute. and Ioc l agrnecs in the pr enuon. control. and
abatement of en’ irotisiicnijl pullutitin.
1.202. Each Eaccuine agc ’n slull consuh ‘ ith the Admiuiiir.itur and
with State. interstate, and local agencies concerning the best echniqnes and
methods a aiIablc for the prc’venuon. contrul. and abatement of crnironmen
laS pollution.
I—S. Ticâni& .ldvvr .ad Owmgs%.
1—30 1. The Administrator shall provide technical advice and auisunce to
Executive agenoes I order m surc that cost effecLive and timely compli-
ance with applicable pollution control standards.
1.302. The adntinutrator shall conduct such reviews and inspections as
may be ucecmr to monhor compli ce with applicable pollution control
standards by Federal bolanes and acnviuea.
1.4. Po& ize. C.nril Plan.
1-40!. Each Exeetnwe agency shall submit io the Director of the ornce of
I4anagemcnt and Budget, through the AthninUo ’aior. an annual plan for the
control o( en unmesual polluDon. The plan shall provide for any ncces ry
improvemem in .be design. consu’uciion. management. operation. and maime-
nance oI Federal fadlities and activities, and shall indude annual cost esu-
matet. The Administrator shall establish guidelines (or developing such plaits.
1-402. In preparing iu plan. each Executi e agency shall ensure that the
plan provides for compliance with all applscablc pollution cooiz& standards.
1—403. The plan shall be submitted in ‘accordance with an’ other nsiruc•
tions that the Director of the Offlce of ! tanagement and Budget may issue.
I—S. Fw,doi 1
1—501. The head of each Exccuii e agency shall ensure th it sutflcicnt
funds for compliance with applicable ‘pollution control standards are reqi ested
in the agency budget.
1-502. The head of each Eaecwive agency sbafl ensure that funds appro.
pnated and apportioned for the pre enuon. control and abatement of en iron.
mental pollution are not used for an other purpose unlen permitted by law
and specti czll approved by the 0 (11cc of rugelnent and Bud ct.
1—6. Coi plianr 1 11th P,lhision C.iumis.
1—601. Whene er the Administrator or the appropriate State. intersiatc.
or local agency notifies an Executive agency that ii is in violation of an
applicable pollition control standard (see Section 1—102 of this Order), the
Ezccuu e agency shall promptly consult with the notiP ing a;enc and provide
for hi approval a plan to achieve and maintain compliance ‘ ith the applicable
pollution control standard. This pLan shall include an implcmentauun sdicd.
We for coming i wo compliance as soon practicable.
.1-602. The Administrator shall make every elTon to resoke conflicts
regarding such vioLation beti ecn Executive agencies and, on request of any
party, such conflicts between an Executive agency and a State. inicrsutc, or a
local .tgenc. If the Administrator cannot resolve a conflict, the Administrator
shall request the Director of the 0 ( 1 1c c of Management and Budget to resolve
the conflict.
1-603. The Director of the Ornce of Management and Rudgcs shall
consider unresolved conflicts 31 the request of the Administrator. The Director
shall set’L 11w Adininisuator’s iechiwkagical judgment and dvtvrminatiun with
regard to ihc al)lilieJbilit% of siatutis and re—julations.
EDUAL ISGISlU , VOt. £3 NO IOI—TUU5AY, OCYOSU 17. IWS
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T141 PIESIDINT 47709
I. .G04. These conI .ici resoluuon procedures are in addition to. nut in
of. other procedures, including sanctions. (or the en(orceincnI ni applicable
pollution conu ’oI itanthrds.
1405. £xccpt as cprcsslv provided by a Presidential exemption under
this Order. nothing in thu Order, nor any action or inaction wider this Order.
shall be construed to revise or modify any applicable pollution control
standard.
1-7. inuarwn N £u.pnnu.
1—701. Exemptions from applicable pollution conu ’oI scandards may only
be g anied under statutes ated in Section 3— 102a) through 1—102(t) if the
President makes the required appropriate statutory determination: that such
aempuon is oecessar (a) in the interest of national security, or (b) in the
paramount interest of the United States.
1—702. The head of an Executive agency may. from time to time. recom.
mend to the President through the Director of the Ornce o( Management and
Budget, that an activity or facility, or uses thereof, be e empc front an applica-
ble poliution control standard.
1-703. The Adminisu’ator shall advise the President, through the Director
of the Ornce of Management and Budget. ethcr he agrees or disagrees with
a recommendation for exemption and hi. reasons thcrefor.
1-704. The Director of the Ornce o( Management and Budget must
advise the President within sixty days of receipt of the Administrator’s views.
1-8. engmI ?tuvuw,u
1—80 1. The head of each Executive agency.that is responsible for the
consiruction or operation of Federal facilities outside the Untied States shall
ensure that such constr iction or operation complies with ihc enbironmental
pollution control stand.ards of general applscabs1ii in the host country or
junsdicuon.
1—802. Executive Order No. 11752 of December 17, 1973, is revoked..
Tuc Wisrra Hovs .
O i.ber LI, 197&
(7 K -Dec. 75-29s06 P 1ed 1O-13-7L 3:40 pmj
£DC?oslAi. %on The Prctidcrn’s uiaiuncnt it Oct. 1$. 19,1. in .ipi i n 5 ti,cvi ’,t Order
tOM and his memorandum r. ihe heads at drpan.viciu. and aerncws. daird Oct. IS. $975. on
Fidci I campl&ancr %lIh pn llui.on cornrol standards are pn.urd in ihc W,cU. C..iipda.uon at
Psendc ’n&iaI Docwnents (‘el. 14, no. 4$).
1%AL UG1SflL VOL . NO. tOI—TUUDAY, OCTOIfl 17, 1175
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Federal Register / Vol. 44. No. 141 / Friday, luly Zo. 1979 I Presidential Documents 42657
Presidential Documents
Executive Order 12148 of July II. 1979
Management of Federal Legal Resources
By the authority vested In me ii President by the Constitution and statutes of
the United States of America. It Is hereby. ordered as fOllows:
1.1. F .stoblishmentof the Federel Lqoi Council.
1—101. There Is hereby established the Federal Legal Council. which shall be
composed of the Attorney General and the representative, of not more than
15 other agencies. The agency representative shall be designated by the head
of the agency.
1—101 The initial membership of the Council. in addition to the Attorney
General, shall consist of representatives designated by the heads of the
following agencies:
(a) The Department of Commerce.
(b) The Department of Defense.
(cj The Department of Energy.
(d) The Environmental Protection Agency.
(c) The Equal Employment Opportunity Commission.
(f) The Federal Trade Commission.
(g) The Department of Health.Education . md Wellare.
(hJ The Interstate Commerce Commission.
(I) The Department of Labor.
(j) The National Labor RelationsBoagd.
( Ic) The SecuriU,s and Exchange Cpmmiss ion.
(IJ The Department of State.
(in) The Department of theTreasury.
(ni) The United StatesPo ,tal Serviceand
(a) the Veteran, Administration.
1—103. The initial members of the Council abalf serve for a term of two years.
Thereafter, the agencies which compose the membership shall be designated
annually by the, Council and’at lea t five positions on the Council, other than
that held by the Attorney General, shall i taie annually.
1—104. in addition to the above members., the Directors of the Office of
Management and Budget and the Office of’Personnel Management, or their
designee,, shall beadvisory members of the Council.
1—105. The Attorney Ceneral shall chair the Cowicil and provide etaff for Its
operation. Representatives of agencies that are not mernher, of the Council
may serve on or chair subcommittees of the CounciL
1-2. Functions of the Council.
1—201. The Council shall promote:
(a) coordination and communlcaUon among’Federal legal office,:
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Federal Reglet., I Vol. 44. No. 141 / Friday. July 20. 1979 / PresIdential Documents
(b) improved management of Federal lawyers, associated support personnel.
and information systems:
(c) improvements In the training provided to Federal lawyers:
(d) the facilitation of the personal donation of pw bono legal services by
Federal attorneys;
Ic) the use of Joint or shared legal facilities in field offices: and
(f) the delegation of legat work to field offices.
1—202. The Council shall study and_seek to resolve p !ems In the efficient
iiidiffëëUVi management of “Federal ’legil resources that are beyond thi
capacity or authority of Individual agencies to resolve.
1—203. The Council shall develop recommendations for legislation and other
actions: (a) to Increase the efficient and effective operation and management
of Federal legal resources, including those matters specified in Section 1—201,
and (b) to avoid inconsistent or unnecessary litigation by agencies.
1-3. Lit igot ion Notice System.
1—301. The Attorney General shall establish and maintain a litigation notice
system that provides timely tnformatlon about all civil litigation pending In the
courts in which the Federal Covernme4t Is a party or has a significant interest.
1—302. The Attorney Genera! shall issue rules to govern operation of the notice
system. The rules shall Indude the following requirement
(a) All agencies with authority to litigate cases in court shall promptly notify
the Attorney General about those cases that fall in classes or categories
designated from time to time by the Attorney General.
(b) The Attorney General shall provide eli agencies reasonable access to the
Information collected in the litigation notice system.
1-4. Resolution of lntemgency Legal Disputes.
1-401. Whenever two or more Executive agencies are unable to resolve a legal
dispute between them. Including the questibn of which has jurisdiction to
administer a particular program or to regulate a particular activity, each
agency Is encouraged to submit the dispute to the Attorney General.
1-402. Whenever ‘two or more Executive agencies whose heads serve at the
pleasure of the President are unable to resolve such a legal dispute, the
agencies shall submit the dispute to the Attorney General prior to proceeding
in any court, except where there Is specific statutory vesting of responsibility
for a resolution elsewhere.
i-S. Access to Legal Opinions.
1—501. In addition, to the disclosure now required by law, all agencies are
encouraged to mate available for public inspection and copying other opin.
Ions of their legal officers that are statements of policy or interpretation that
have been adopted by the agency, unless the agency determines that disclo.
sure would result In demonstrable harm.
1—502. All agencies are encouraged tp make available on request other legal
opinions. then th& agency determines that disclosure would not be harmful.
1-6. Automated Legal Research and Information Systems.
1-601. The Att6rney General, In coordination with the Secretary of Defense
apd ‘other agency heads, shall provide for a computerized legal research
system that will be available to all Federal law offices on a ‘reimbursable
basis. The system’ may Indude in Its data base such Federal regulatron,, case
briefs, and legal opinions, as the Attorney General deems appro t1ate.
1-602. The Federal Legal Council shall provide leadership fdr all Federal legal
offices in establishing appropriate word processing and mana emenIjnfo,sna-
tion systeme.
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Federal Register I Vol. 44. No. 141 I Friday. u1y 20,1979 / Presidenlial Documents 42659
1—7. Responsibilities of the Agencies.
i— rn. Each agency shall (a) review the management and operation of Its legal
activities and report in One year to the Federal Legal Council all steps being
taken to improve those operations, and. (b) cooperate with the Federal Legal
Counóil and the Attorney General IA the performance of the functions pro.
vided by this Order..
1—702. To the extent permitted by law, each agency shall furnish the Federal
LegalCouncil and the 4ttomey General with reports, information and assist-
ance as requested tocirty out theprovisI ns of’this Order.
THE WHITE HOUSE, /
July IL 197k
7-t9- % t 4O smj
ilIwg da 31O6-O%—t
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Federal Register I Vol. 52, No.19! ThUt$diyr anuary 29.1987/ PresIdential Docwnez tj
Presidential Documents
Superfuid Implementation
By the authority vested in me as President of the United States of America by
Section 115 of the Comprehensive Environmental Response. Compensation,
and Uability Act of 1980. as amended (42 U.S.C. 9615 it seq.) (‘the Act”). and
by Section 301 of Tide S of the United States Code. It Ii hereby ordered as
follows:
Section i. National C ngency Plan. (a)(i) The National Contingency Plan
(“the NC J. shall provide for a National Response Team (“the NW1 ”) com-
posed of representatives of appropriate Federal departments and agencies for
nations! planning and coordination of preparedneu and response actions. and
regional response teams as the regions] counterpart to the NRT for planning
and coordination of regional prepar,de.n and response actions.
(2) The following agencies (In addition to other appropriate agencies) shall
provide representatives to the Nations] and Regional Response Teams to
carry out their responsibilities under the NCP Department of State. Depart-
ment of Defense, Department of Justice. Department of the Interior. Depart-
ment of Agriculture. Department of Commerce. Department of Labor. Depart-
ment of Health and Human Services, Department of Transportation. Depart-
ment of Energy. Environmental Protection Agency. Federal Emergency Man-
agement Agency. United State. Coast Guard, and the Nuclear Regulatory
Commission.
(3) Except for periods of activation because of a response action, the repre-
sentative of the Environmental Protection Agency (“EPA”) shall be the chair-
man and the representative of the United States Coast Guard shall be the vice
chairman of the NRT and these agencies’ representative, shall be 4chalre of
the Regional Response Teame (“the MTs”). When the NRT or en RRT Is
activated for a response action. the chairman shall be the PA or United
States Coast Guard representative, based on whether the release or threat-
iced rslaw occurs In the inland or coastal zone, unless otherwise agreed
uçooby the EPA and United Stat.. CM Guard representatives.
(4) The RRTs may Inchade representatives from State governments, local
governments (as agreed upon by the States), and Indian tribal governments.
Subject to the functions and authorities delegated to Executive departments
and agencies In other sections of this Order, the NRT shall provide policy and
program direction to the RRT.
(b)(1) The responsibility for th. revision of the NC? and all of the other
functioni vested In the President by Sections 105(a). (b). (c). and (g). 125. and
30 1(fl of the Act Ii delegated to the Administrator of the Environmental
Protection Agency (“the M hi11trator).
(2) The function vested In the President by Section 118(p) of the Superfund
Amendments and Resathosleation Act of 1986 (Public Law 99-499) (“SARA’)
Is delegated to tha Miuth a.trator.
(c) In accord with Section i07(fl(2)(A) of the Act and Section sii(fl(5) of the
Federal Water Pollution Control Act, as amended (33 U.S.C. 1321(0(5)). the
following shall be among those d.sl. at.d In the NC? as Federal tmstees for
natwii resources:
(1) Secretary of Defense:
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2924 F.deral Register I Vol. 52. No. 19 I Thursday. January 29. 1987 I Presidential Documents
(2) Secretary of the Jntsrlor.
(3) Secretary of Agriculture:
(4) SecretarY of Commerce:
(5) Secretary of Energy.
(d) RevfsionS to the NCP shall be made th consultation with members of the
NRT prior to publication for notice and comment. Revisions shall also be
made In consultation with the Director of the Federal Emergency Management
Agency and the Nuclear Regulatory Commission In order to avoid inconsistent
or duplicative requirements In the emergency planning responsibilities of
those agendas.
(e) All revisions to the NCP. whether In proposed or final form. shall be
subject to review and approval by the Director of the Office of Management
and Budget (“0MB”).
Sec. 2. Response and Related Authorities. (a) The functions vested in the
President by the first sentence of Section 104(b)(1) of the Act relating to
•‘illness, disease. or complaints thereof’ are delegated to the Secretory of
Health and Human Services who shall In accord with Section 104(i) of the
Act. perform those functions through the Public Health Service.
(b) The functions vested In the President by Sections 104(eXl)(C) , 113(k)(2),
ii9(c)(7) , and izi(fl(i) of the Act, relating to promulgation of egulatlons and
guidelines. are delegated to the Adm11 ,tratOr. to be exercised in consultation
with the NRT.
(c)(1) The functions vested in the President by Sections 1 0 4(a ) and the second
sentence of 128(b) of the Ac to the extent they require permanent relocation
of residents. businesses, and ctmi nunity facilities or temporary evacuation
and housing of threatened Individuals not otherwise provided for, are delegat-
ed to the Director of the Federal Emergency Management Agency.
(2) Subject to subsection (b) of this Section. the functions vested In the
President by Sections 117(a) and (c). and 119 of the Act, to the extent such
authority Is needed to carry out the functions delegated under paragraph (1) of
this subsection, are delegated to the Director of the Federal Emergency
Management Agency.
(d) Subject to subsections (a). (b) sod (c) of this Section. the functions vested
in the President by Sections 104(a). (b) and (c)(4). 113(k). 117(a) and (c). 119.
and 121 of the Act are delegated to the Secretaries of Defense and Energy.
with respect to eleuei or threste ed releases where either the release is on
or the sole source of the release Is from any facility or vessel under the
jurisdiction, custody or control of their departments. respectivelY, including
vessels bare.boat chartered and operated. These functions must be exercised
consistent with the requirements of Section 120 of the Act.
(eXI) Sob ject to .vbsee Oai (a). (b). (c). sod (d) of this Section. the functions
vested in the President by Sections 100(s ). (b) and (c)(4). end 121 of the Act
are delegated to the heads of Executive departments and agencies. with
respect to remedial actions for releases or threatened releases which are not
on the National Priorities List (“the NPL”) and removal actions other than
emergencies, where either the relaue Is on or the sole source of the release Is
from any facility or vessel under the jurisdIction. custody or control of those
departments and agencies. Including vessels bare-boat chartered and operat-
ed. The Ahithistrator shill define the term “emergency”. solely for the
purposes of this subsection, either by regulation or by a memorandum of
understanding with the head of an Executive department or agency.
(2) Snbçeot to subsections (b). (c). and (d) of this Section. the functions vested
In the President by Sections iOe(b)(2). 113(k). 117(a) md (c) and 119 of the Ar
are delegated to the heads of Executive departments and agencies. v
respect to releases or threatened releases where either the release Is on o
sole source of the release Is from any facility or vessel under the jurtsd
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Federal Register! Vol. 52. No. 19 I Thursday. January 1987 I Presidential Documents 2925
custody or control of those departments and agencies. Including vessels bare-
boat chartered and operatsL
(I) Subject to subsection. (a). (b) (c). (d). and (e) of this Section. the functions
vested In the President by Sections 104(a). (b) and (c)(4), 113(k), 117(e) and (c),
119, and 121 of the Act are delegated to the Secretary of the Department In
which the Coast Guard Is operating rib. Coast Guard”), with respect to any
release or threatened release Involving the coastal gone. Great Lakes waters.
port and hazbor&
(gJ Subject to subsection.. (a), (b). (c). (d). (e), and (f) of this Section, the
functions vested In the President by Sections 101(24), 1 0 4(a), (b), (c)(4) and
(c 9), 113(k), 117(a) and (c), 119, 12j, and 128(b) of the Act are delegated to the
Almlnhatrator. Tb. Administrator’s authority under Section 119 of the Act I.
retroactive to the date of enactment of SARA
(h) The function. e.ted In the The,Ident by Section 104(c)(3) of the Act are
dgettd to the Mc rIsfrator. with respect to providing assurances for
In&in tribes, to be exercised In consultation with the Secretary of the Interior.
(I) Subject to subsections (d). (c) (f), (g) and (h) of this Section, the functions
vested to the President by Section 104(c) and (d) of the Act are delegated to
the Coast Guard, the Secretary of Health and Human Services, the Director of
the Federal Emergency Management Agency. and the Mininistrator In order
to carry out the functions delegated to them by this Section.
(fl(1) Th. functions vested In the President by Section 104(e)(5)(A) are delegat-
ed to th. heads of Executive department, and agencies, with respect to
releases or threatened releases where either the release Is on or the sole
source of the release Is from any fecllliy or vessel under the jurisdiction.
custody or control of those departments and agencies, to be exercised with the
concurrence of the Attorney General.
(2) Subject to subsection (b3 of this Section and pare aph (1) of this subsec-
tion, the functions vested In the President by Section 104(e) are delegated to
the heads of Executive departments and agencies in order to carry out their
functions under this Order or the Act.
(k) The fwtctlons vested In the President by Section 1040), (g). (h). (l)(11), and
(I) of the Act are delegated to the heidi of Executive departments and
agencies In order to carry out the functions delegated to them by this Section.
The exercise of authority under Section 104(h) of the Act shall be subject to
the approval of the Administrator of the Office of Federal Procurement Policy.
Sec. $. Clean Schedules. (a) The functions vested In the President by
Sections 115(a) and the first two sentences of 105(d) of the Act are delegated
to the heads of Executive departments and agencies with respect to facilities
under the jurladlctio custody or control of those departments and agencies.
(b) Subject to subsection (a) of this Section, the functions vested In the
President by Sections 116 and 106(d) are delegated to the Administrator.
S .c. 4. Enforcement. (a) The functions veited In the President by Sections
105(d) and 122(eX3)(A) of the Act, relating to development of regulations and
guidelines. are delegated to the Administrator, to be exercised In consultation
with the Attorney General.
(bX1) Subject to subsection (a) of this Section, the functions vested In the
President by Section 1 (except subsection (bXl)) are delegated to the beads
of Execotlvs departments and agencies. with respect to releases or threatened
releases not on the NPL wher . either the release Is on or the sole source of the
release Is from any facility under the jurisdiction, custody or control of those
Executive departments and agencies. The.e functions may be exercised only
with the concurrence of the Attorney General.
(2) Subject to .ubsectlon (a) of this Section, the functions vested In the
President by Section 109 of the Act, relating to violations of Section 122 of the
Act. are delegated to the heads of Executive departments and agencies. Ith
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2926 Federal Register I Vol. 52 No. 19 I Thursday, January 29, 1967 I Presidential Documents
respect to releases or threatened release. not on the NPL where either the
release is on or the sole source of the release is from any facility under the
jurisdiction, custody or control of those Executive departments and agencies.
These functions may be exercised only with the concurrence of the Attorney
General.
(c)(1) Subject to subsection (a) and (b)(l) of this Section. the functions vested
in the President by Sections 106(a) and 122 of the Act are delegated to the
Coast Guard with respect to any release or threatened release involving the
coastal zone, Great Lakes waters, pods. and harbors.
(2) Subject to subsection (a) and (b)(2) of this Section. the functions vested in
the President by Section 109 of the Act, relating to violations of Sections 103
(a) and (b), and 122 of the Act, are delegated to the Coast Guard with respect
to any release or threatened release involving the coastal zone, Great Lakes
wat pert. md harbar.
(d)(1) Subject to subsections (g ),1b (1) , and (c)(1) of this Section. the functions
vested in the President by SectIons 106 and 122 of the Act are delegated to the
Administrator.
(2) Subject to subsections (a), (b)(2), and (c)(2) of this Section, the functions
vested In the President by Section 109 of the Act, relating to violations of
Sections 103 and 122 of the Act are delegated to the Administrator.
(e) Notwithstanding any other provision of this Order, the authority under
Sections 104(e)(5)(A) and 106(a) of the Act to seek information. entry, Inspec-
tion, samples. or response actions from Executive departments and agencies
may be exercised only with the concurrence of the Attorney General.
Sec. 5. Liability. (a) The function vested in the President by Section
107(c)(1)(C) of the Act I, delegated to the Secretary of Transportation.
(b) The functions vested In the President by Section 107(c)(3J of the Act are
delegated to the Coast Guard with respect to any release or threatened release
Involving the coastal zone. Great Lakes waters, ports, and harbors.
(c) Subject to subsection (b) of this Section. the function. vested iii the
President by Section 107(c)(3) of the Act are delegated to the Administrator.
(d) The functions vested in the President by Section 107(fl(1J of the Act are
delegated to each of the Federal trustees for natural resources designated In
the NCP for resources under their trusteeship.
(e) The functions vested in the President by Section 107(fl(2)(B) of the Act to
receive notification of the state natural resource trustee designations. are
delegated to the Administrator.
Sec. S. Litigation. (a) Notwithstanding any other provision of this Order, any
representation pursuant to or under this Order In any judicial proceedings
shall be by or through the Attorney General. The conduct and control of all
litigation arising under the Act shall be the responsibility of the Attorney
General.
(b) Notwithstanding any other provision of this Order, the authority under the
Act to require the Attorney General to commence litigation is retained by the
President.
(c) The functiona vested in the President by Section 113(g) of the Act to
receive notification of a natural resource trustee’s Intent to file suit, are
delegated to the heads of Executive departments and agencies with respect to
response actions for which they have been delegated authority under Section
2 of this Order. The Administrator shall promulgate procedural regulations for
providing such notification.
(d) The functions vested in the President by Section. 310 (d) and (e) of the Act
relating to promulgation of regulations. are delegated to the Administrator.
S.c. 7. Financial Responsibility. (a) The functions vested in the President by
Section 107(k)(4)(B) of the Act are delegated to the Secretary of the Treasury.
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Federal Register I Vol. 52. No. 19 1 Thursday. January 29. 1987 1 PresidentIal Documents 2927
The Administrator will provide the secretary with such technical information
and assistance a. the Administrator may have available.
(bXl) The functions vested In the President by Section 108(aXl) of the Act are
delegated to the Coast Guard.
(2) Subject to SectIon 4(a) of this Order, the functions vested In the President
by SectIon 109 of the Act, relating to violations of Section 108(a)(1) of the Act.
are delegated to the Coast Guard.
(c)(1) The functions vested In the President by Section 108(b) of the Act are
delegated to the Secretary of Transportation with respect to all transportation
related facilities. Including any pipeline, motor vehicle, rolling stock, or air-
craft.
(2) Subject to Section 4(a) of this Order, the functions vested In the President
by SectIon 100 of the Act, relating to violition. of Section 108(a)(3) of the Act.
are delegated to the Secretary of Transportation.
(3) Subject to Section 4(s) of this Order, the functions vested In the President
by Section 109 of the Act, relating to violations of Section 108(b) of the Act.
ate delegated to the Secretaiy of Transportation with respect to all transporta-
tion related facilities. including any pipeline, motor vehicle, rolling stock, or
aircraft
(d)(1) Subject to subsection (c)(1) of this Section, the functions vested in the
President by Section 108 (a)(4) and (b) of the Act are delegated to the
Administrator.
(2) Subject to Section 4(a) of this Order and subsection (c)(3) of this Section.
the functions vested In the President by Section 109 of the Act, relating to
violations of Section 106 (a)(4) and (b3 of the Act are delegated to the
Administrator.
S.c. S. Employee Protection and Notice to Injured. (a) The functions vested in
the President by Section 110(e) of the Act are delegated to the Adminstrator.
(b) The functions vested in the President by Section 111(g) of the Act are
delegated to the Secretaries of Defense and Energy with respect to releases
from facilities or vessels under the jurisdiction, custody or control of their
departments, respectively. Including vessels bare-boat chartered and
operated.
(c) Subject to subsection (b) of this Section. the functions vested In the
President by Section 111(g) of the Act are delegated to the Administrator.
Sec. S. Management of the Hazardous Substance Superfund and Claims. (a)
The functions vested in the President by Section 111(a) of the Act are
delegated to the A4,n11 1.frator. subject to the provisions of this Section and
other applicable provisions of this Order.
(b) The Mm tafrstor shall transfer to other agencies, from the Hazardous
Substance Superfund out of sums appropriated. such amounts as the Adminis-
trator may determine necessary to carry out the purposes of the Act These
amounts shall be consistent with the President’s Budget. within the total
approved by the C ngres.. unless a revised amount is approved by 0MB.
Funds appropriated speclflcally for the Agency for Toxic Substances and
Disease Regiati ’ (“ATSOR”). shell be directly transferred to ATSDR. consist-
ent with fiscAlly responsible investment of oust fund money.
(c) The MM11 lstrItor shall chair a budget task force composed of representa-
tives of Executive departments and agencies having responsibilities under this
Order or the Act. The A 1n1,trator shall also. as part of the budget request
for the Environmental Protection Agency. submit to 0MB a budget for the
Hazardous Substance Superfund which ii based on recommended levels
developed by the budget task force. The Administrator may prescribe report.
Ing and other forms. procedures. and guidelines to be used by the agencies of
the Task Force In preparing the budget request. consistent with budgetary
reporting requirements Issued by 0MB. The Administrator shall prescribe
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Pudessi Register I Vol. 52. No.19 TV drsdsy, anuary 29.10671 PresIdential Do ”ts
forms to agency task forte men bers for reporting the expenditure of fundso
a site specific basis.
(d) The Adnifnfstrator and each department and agency head to whom funds
ate provided p TIU1flt to this Section. wIth respect to funds provided to them.
are authorf2ed to accordance with SectIon 111(1) of the Act to designate
Federal offzcials who may obl ata midi funds.
(e) The functions vested In the President by Section 112 of the Act are
ds egated to the Administralos for all shims presented pursuant to Section iii
a ltbeMt
(f) The functions vested In the President by Section 111(o) of the Act are
delegated to the Administrator.
(g) The func&ins vested In the Pr.ddeat by Section 117(e) of the Act are
delegated to the Admimetritor to be exercised In consultation with the
Attorney General.
(h) The functions vested to the President by Section 123 of the Act are
dele ted to the Admi tr .
(I ) Punds from the Hazardous Substance Superfund may be used. at the
discretion of the Administrator or the Coast Guard . to pay for removal actions
for rekases or threatened releases lam facilities or vessels under the jurisdic.
tion. custody or c i*iI .1 Exocstt departments and agencies but must be
reimbursed to the Hazardous Substance Superfund by such Executive depart-
ment or agency.
Sec. 0. Feden rIForilRfes. (a) When ascessary. prior to selection of a remedial
action by the Atheithfrator ander Svctiun 120(eli4)(A) of the Act. Executive
agencies shall have the opyvi’t .wl t 7 to present their views to the Administra-
tor after using the procedure. i der Sec on 14 of Executive Order No. 12068
of October 13 197L as m y other m atu* acceptable process. Notwlthstand•
ing subsection 1-602 of Executive Order No. 12068. the Director of the Office of
Managf mint rut Dudget shall fid tste resolution of any issues.
(b) Executive Ordea N.. 12065 of Odob 13.1978.11 amended by renumbering
the current SectIon 1-402. as 9. 1-103 and Inserting the following new
Section 1—802:
‘ -eoz . Nothix to Ordr shaD as e any right or benefit. substantive or
pr.c d.ral. enloruable st liv by a party against the United States. Its
agencies. Its oscars. or any perle.. ”
Sec. U. Gesie,o? P,u’r*r z . (a) The fimction vested In the President by
1e n 1114W) of the Act to delegated to the M’ 4n1stratOr.
(di) The function vested in the President by Section 105(0 of the Act. relating
to rep rtto$ on minority y tli4 aUOU in contracts, Is delegated to the Admin-
totrator.
(2) Sublect to para apb I of tbto subsection, the functions ve.ted In the
Pre.ide i by S n IDS(f) of the Act are delegated to the heads of Executive
d.p.ri nt1 and ageUs to m er to wry out the functions delegated to
th by this Or . Each lxecaMve department and agency shall provide to
the M r fra1or any w ied Wormatlon on minority contracting for
Inchasion in the Section105(fl annual isport.
(c) The f ctt vested to 0w President by Section 126(c) of the Act are
d.4.gated as the A r a I. be exercised In consultation with the
Scaitay of 0w heeds’.
(dl Tb. fuac oA& v. t to the President by Section 301(c) of the Act are
delegated to the S.aitary of the latoder.
(e) Each tgeiCT ‘htfl have .uiharfty to Issue such regulations as may be
necessary to carry out the functions delegated to them by this Order.
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Federal Reg ster I Vol. 52. No. 19 I Thursday, January 29 1987 I Presidential Documents 2929
(I) The performance of any function under this Order shall be done In
consultation with Interested Federal departments and agencies represented on
the NRT. as well as with any other Interested Federal agency.
(g) The following functions vested In the President by the Act which have
been delegated or assigned by this Order may be redelegated to the bead of
any Executive department or agency with his consent: functions set forth In
Sections 2 (except subsection (b)). 3. 4(b). 4(c). 4(d), 5(b), 5(c), and 8(c) of this
Order.
(h) Executive Order No. 12316 of August 14, 1981.1. revoked.
T) WIUTE HOUSE
/onuory 23. 1987.
Doc r—1s42
I%I.d I4?4 . US pml
Idlilis code )1e541—M
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FEDERAL FACILITIES
COMPLIANCE
STRATEGY
This brochute provides an overview of the EPA
Federal Facilities Compliance Strategy (i.e., the
“Yellow Book’ , issued November 1988. The
Strategy is the primary EPA policy and guidance
document which outlines EPA’S approach for
undertaking compliance monitoring and enforce-
ment activities at facilities or lands owned or
operated by the Federal govenunenl.
BACKGROUND
Federal agencies are required to comply with Fed-
eral, State, and local environmental regulations in
the same manner and degree as non-Federal enti-
ties. To help ensure Increased compliance, Execu-
tive Order 12088 was issued, mandating Federal
agency compliance with all environmental laws
and requiring EPA to assist Federal agencies In
achieving compliance at their facilities.
In addition, each of the environmental statutes
provides EPA the authority for taking enforcement
actions for violations at Federal facilities.
Due to certain constitutional and statutory con-
siraints, there are some differences In EPA’s com-
pliance and enforcement procedures for Federal
facilities. This policy document outlines EPA’s
strategy for maximizing use of Its available en-
forcement tools for improving compliance at Fed-
end facilities.
The Strategy serves as a guidance and policy docu-
ment for EPA Headquarters and Regions, States,
Federal Facilities and an information document for
the public, and any concerned interest groups.
PURPOSE
The Strategy serves as the framework for all EPA
programs to follow to ensure that Federal facilities
are fully integrated into all EPA program compli-
ance monitoring and enforcement activities.
This policy document establishes a comprehensive
and proactive approach to assist EPA in fulfilling
Its new goal of helping “ensure that Federal agen-
des achieve compliance rates in each media
program which meet or exceed those of major in-
dustrial and major municipal facilities.”
The Strategy also attempts to reconcile EPA’s dual
responsibilities to provide technical assistance and
advice to Federal facilities pursuant to E.O. 12088,
and its statutory authorities to take enforcement
actions for violations at Federal facilities in ap ,io-
pnatc circumstances.
This guidance sets forth the enforcement response
and dispute resolution procedures which EPA will
follow when environmental violations occur at
Federal facilities. The Strategy also outlines EPA’S
efforts to assist Federal agencies in achieving and
maintaining high rates of compliance at their
facilities.
KEY PROVISIONS
Several key provisions are contained In the Strategy
which:
• Clarifies Federal agencies’ requirement to
comply with environmental laws to the
same extent as non-Federal entities and
EPA’s commitment to use all its available
enforcement mechanisms to ensure compli-
ance by Federal facilities.
• Emphasizes negotiation of compliance
agreements or consent orders with Federal
facilities within established “timely and ap-
propriate” timeframes priorto EPA’s taking
any further action.
• Establishes a formal dispute resolution
process with specific escalation timeframes
when mutual agreement cannot be reached
at the Regional level.
• States that EPA can use the full range of its
enforcement authority against contractor
operators of government-owned/contractor
-operated Federal facilities (GOCOs).
• Outlines selected iniatives for Improving
the identification, tracking, and compli-
ance monitoring of the Federal facilities
• Clarifies the important role of States in the
Federal facilities complithee and enforce-
ment process.
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• Emphasizes the use of Innovative coinpil-
ance management techniques Including
environmental auditing and mom effective
use of the Federal Agency A-106 Pollution
Abatement Planning Process.
• Promotes improved and more systematic
:EPA technical assistance for Federal
agencies.
• Defines responsibilities for Federal facili-
ties at both Headquarters and Regional
levels.
ORDERING INFORMATION
To obtain a copy of the Federal-Facilities Compli-
anceStrategyplease fill out thistbrm and Seed it to:
U.S. Envi a v ction Agency
Office OfJ li Ar-1OL OS 3’3o
Federal Facilities ( .•- 1 4J ise P pgram
401 M Street S.W.
Washhgton, D.C. 20460
T te i7a ãi
Compliance Strategy to:
Name:
Agency/Afl lliatiorc
A AA.......
FEDERAL FACILITIES
COMPLIANCE
STRATEGY
An
Overview
1%
Phone: of copies:
1%
. ra
Office of Federal Activities
Environmental Protection Agency
Washington, D.C.
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FEDERAL FACILITIES
COMPLIANCE STRATEGY
OFFICE OF FEDERAl. ACTIVITIES
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CHAPTER I INTRODUCTION
PURPOSE OF STRA TEG Y
• ESTABLISHES FRAMEWORK FOR EPA/STATES TO ADDRESS FEDERAL
FACILITY (FF) ENVIRONMENTAL COMPLIANCE PROBLEMS
• INTEGRATES FFs INTO ALL EPA COMPLIANCE MONITORING ACTIVITIES
• SETS FORTH APPROACH OF NOTIFICATION, NEGOTIATION, AND FORMAL
ADMINISTRATIVE ACTION FOR RESOLUTION OF PROBLEMS
• PROVIDES A MORE PROACTIVE APPROACH TOWARD PREVENTING
COMPLIANCE PROBLEMS
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CHAPTER I - INTRODUCTION
STRA TEG V DEVELOPMENT A ND IMPL EMENTA TION
DEVELOPMENT:
EPA Agencywide Workgroup (Headquarters and Regions)
- Comments on Draft from EPA, States and Federal Agencies
IMPLEMENTATION:
- Implemintation of the Strategy Will Begin In FY87 and Will Bø Phased
in Over Next Few Years
a Enforcement Response Will Be Implemented Immediately
a EPA Program Operating Year Guidance Will Set Annual Priorities
for the Implementation of This Strategy
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CHAPTER I - INTRODUCTION
STRATEGY CHAPTERS
THE STRATEGY IS DIVIDED INTO NINE CHAPTERS AS FOLLOWS:
• I —
• II —
• III
• IV
• V-
• VI —
• VII-
• VIII—
• IX -
INTRODUCTION
ENVIRONMENTAL STATUTES AND EXECUTIVE ORDERS
IDENTIFICATION OF THE REGULATED COMMUNITY
COMPLIANCE PROMOTION, TECHNICAL ASSISTANCE. AND TRAINING
COMPLIANCE MONITORING
S
ENFORCEMENT RESPONSE TO COMPLIANCE PROBLEMS
STATE/EPA ENFORCEMENT AGREEMENTS
EPA ROLES AND RESPONSIBILITIES
MANAGEMENT ACCOUNTABILITY AND EVALUATION
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CHAPTER II SUMMARY OF RELEVANT ENVIRONMENTAL
STATUTES AND EXECUTIVE ORDERS
STATUTES GENERAL
• FEDERAL ENVIRONMENTAL STATUTES REQUIRE FEDERAL AGENCIES
TO COMPLY WITH:
All ProvisIons of Federal Environmental Statutes
All Applicable State and Local Requirements
• STATUTES PROVIDE LIMITED PRESIDENTIAL EXEMPTIONS IN CASES OF:
- National Security
- Paramount Interest of the United States
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CHAPTER II - SUMMARY OF RELEVANT ENVIRONMENTAL
STATUTES AND EXECUTIVE ORDERS
RELEVANT ENVIRONMENTAL STATUTES
RELEVANT FEDERAL ENVIRONMENTAL STATUTES ARE:
• Clean Air Act (CAA)
• Clean Water Act (CWA)
• Resource, Conservation and Recovery Act (RCRA)
• Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
• Toxic Substance Control Act (TSCA)
• Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA)
• Safe Drinking Water Act (SDWA)
SUMMARIES OF THESE STATUTES ARE PROVIDED IN APPENDIX B OF THE
STRATEGY
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CHAPTER II SUMMARY OF RELEVANT ENVIRONMENTAL
STATUTES AND EXECUTIVE ORDERS
EXECUTIVE ORDERS
EXECUTIVE ORDERS WHICH PROVIDE THE FRAMEWORK FOR FEDERAL
COMPLIANCE WITH ENVIRONMENTAL STATUTES ARE:
E.O. 12088 - FEDERAL COMPLIANCE WITH POLLUTION CONTROL
STANDARDS
- Establishes 0MB Dispute Resolution and Escalation Process (Ch. 6)
.
E.O.
1211fi - MANAGEMENT OF FEDERAL LEGAL RESOURCES
Establishes Federal Legal Council for Resolution of Legal Issues
through DOJ
12316 - RESPONSES TO ENVIRONMENTAL DAMAGE
- Addresses Delegation of Duties and Power Assigned to President In
CERCLA (being revised based upon SARA)
COPIES OF THESE E.Os. ARE CONTAINED IN APPENDIX A OF THE STRATEGY
.
.
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CHAPTER III- IDENTIFICATION OF THE REGULATED
COMMUNITY
bEFINING
FEDERAL FACILITY UNIVERSE
POTENTIAL
- AcTUAL..
UNIVERSE
4 KNOWN
3S1,000
HUILDINGS
5,000
AlOe
Projécis
of
P.rmII
Holdois
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CHAPTER III IDENTIFICATION OF THE REGULATED
COMMUNITY
CLA SSIFICA TION OF FEDERAL FA CILITIES/LA NDS
FOR TRACKING PURPOSES
CLASSIFIED AS
FEDERAL FACILITY
FOR TRACKING PURPOSES
• GOCO
• GOGO
• GOPO
• POGO
• CLAIMANT
• LEASEE
• PERMITTEE
• WITHDRAWAL
FROM PUBLIC
USE
CLASSIFIED AS
PRIVATE PARTY
FOR TRACKING PURPOSES
• COCO
• COCO(E)
• GRANTEE
• PATENT HOLDER
• HOLDER
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CHAPTER III - IDENTIFICATION OF THE REGULATED
COMMUNITY
IMPROVED USE OF AVAILABLE INFORMATION AND EXISTING SYSTEMS
SOURCES OF INFORMATION AVAILABLE TO IDENTIFY AND TRACK FFs:
• MEDIA PROGRAM INFORMATION SYSTEMS
• A 1O6 SUBMISSIONS
• STRATEGIC PLANNING AND MANAGEMENT SYSTEM (SPMS)
• FACILITY INDEX SYSTEM (FINDS)
• FEDERAL FACILITIES INFORMATION SYSTEM (FFIS)
• OTHER INFORMATION SOURCES
-------
CHAPTER III - IDENTIFICATION OF THE REGULATED
COMMUNiTY
SPECIAL EPA iNITIATIVES
EXAMPLES OF SPECIAL INITIATIVES THAT EPA WILL UNDERTAKE TO
IMPROVE INFORMATION ON FF UNIVERSE INCLUDE:
• FEDERAL AGENCY RECLASSiFiCATION REVIEW
• REVIEW OF MAJORIMINOR DEFINITIONS
• REGIONAL LISTS OF IMPORTANT FF MINORS
• REGIONAL LISTS OF ENVIRONMENTALLY SIGNIFICANT FFs
• IMPROVED USE OF A-106 PROCESS
-------
CHAPTER IV - COMPLIANCE PROMOTION AND TECHNICAL
ASSISTANCE AND ‘TRAINING
COMPLIANCE PROMOTiON
COMPLIANCE PROMOTION IS A VARIETY OF ACTIVITIES TAKEN TO
FACILITATE TIMELY COMPLIANCE
COMPLIANCE PROMOTiON INCLUDES TECHNIQUES WHICH:
- Prevent or Anticipate Noncompliance SituatiOns
• Enhance Public Perceptions of Federal Compliance
- Improve Working Relationships Among Federal Agencies
• MECHANISMS FOR BETTER “UP-FRONr COMPLIANCE ARE:
• Information Transfer
- Identifying Compliance Patterns of Federal Agencies
- Environmental Auditing
-------
CHAPTER IV - COMPLIANCE
ASSISTANCE
PROMOTION AND
AND TRAINING
TECHNICAL
DEFINITION OF ENVIRONMENTAL AUDITiNG
A REVIEW
Regulated
Entitles
PeriodIc
SVsIemalIc
Documented
Objective
Facility
Operations and
Practices
Ue.lIng
Environmental
Requirements
-------
CHAPTER IV COMPLIANCE PROMOTION AND TECHNICAL
ASSISTANCE AND TRAINING
ENVIRONMENTAL AUDITING POLICY STATEMENT
ENVIRONMENTAL AUDITING POLICY STATEMENT
• DEFINITION
• ENCOURAGEMENT
• REQUESTS FOR REPORTS
• INSPECTIONS AND ENFORCEMENT
• FEDERAL FACILITIES
• STATE AND LOCAL ROLES
• ELEMENTS OF AUDITING
ISSUED IN FEDERAL REGISTER ON JULY 9, 1986 (Vol. 51, No. 131, p. 25004)
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CHAPTER IV COMPLIANCE PROMOTION AND TECHNICAL
ASSISTANCE AND TRAINING
ENVIRONMENTAL AUDITING PROGRAM
ELEMENTS OF AN EFFECTIVE ENVIRONMENTAL AUDITING PROGRAM:
• EXPLICIT TOP MANAGEMENT SUPPORT
a INDEPENDENT AUDIT FUNCTION
• ADEQUATE STAFFING AND TRAINING
• PROCESS FOR COLLECTING, ANALYZING, AND INTERPRETING DATA
• DETAILED WRITTEN PROCEDURES
• PROMPT, CANDiD, CLEAR, AND APPROPRIATE WRITTEN REPORTS
• QUALITY ASSURANCE PROCEDURES
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CHAPTER IV - COMPLIANCE PROMOTION AND TECHNICAL
ASSISTANCE AND TRAINING
TECHNICAL A SSIS TA NCE
E.O. 12088 REQUIRES EPA TO PROVIDE “TECHNICAL ASSISTANCE AND
ADVICE”
• PRIMARY RESPONSIBILITY OF OFA AND FEDERAL FACILITY
COORDINATORS (FFCS)
• TECHNICAL ASSISTANCE MAY BE AVAILABLE FROM STATE AGENCIES
• FEDERAL AGENCIES AND SPECIFIC FACILITIES ARE ENCOURAGED TO
REQUEST TECHNICAL ASSISTANCE
-------
CHAPTER IV - COMPLIANCE PROMOTION AND TECHNICAL
ASSISTANCE AND TRAINING
TRA INING OPPORTUNITIES
EPA WILL ESTABLISH A MORE FORMAL TECHNICAL ASSISTANCE AND
TRAINING PROGRAM:
• AGENCYWIDE EFFORT COORDINATED BY OFA
• OFA WILL DEVELOP ANNUAL TRAINING MANUAL FOR FEDERAL AGENCIES
• OFA WILL PROVIDE QUARTERLY TRAINING TO FFCs
•. MORE SPACES WILL BE AVAILABLE FOR FFs IN EPA TRAINING COURSES
• STATES ARE ENCOURAGED TO INVITE FEDERAL AGENCIES TO ATTEND
THEIR TRAINING COURSES
-------
CHAPTER V COMPLIANCE MONITORING
OBJECTIVES OF COMPLIANCE MONITORING ACTiVITiES
PRIMARY OBJECTIVES OF EPA’S COMPLIANCE MONITORING ACTIVITIES:
REVIEW COMPLIANCE STATUS OF FFs TO IDENTIFY POTENTIAL
VIOLATIONS
• ESTABLISH STRONG ENFORCEMENT PRESENCE AT ALL FEDERAL
AGENCIES
• DEVELOP UNDERSTANDING OF COMPLIANCE PATTERNS AND
COMPLIANCE STATUS OF FF UNIVERSE TO:
• Assist n Targeting Inspection Activities
• Prevent Recurring ViOlations
-------
CHAPTER V COMPLIANCE MONITORING
COMPLIANCE MONITORING TOOLS AND ACTIVITIES
MAJOR COMPLIANCE MONITORING TOOLS AND ACTIVITIES FOR
DETECTING FF VIOLATiONS:
• EPA AND STATE INSPECTIONS (Exhibit V-i)
• SOURCE SELF-MONITORING, REPORTING, AND RECORD-KEEPING
(Appendix C)
• FEDERAL AGENCY A-106 PROCESS
-------
CHAPTER V - COMPLIANCE MONITORING
A-106 REVIEW PRQcESS
E.O. 12088 REQUIRES ALL FEDERAL AGENCIES TO SUBM 1TA-106 PLANS
SEMI-ANNUALLY
• *106 PLANS AND PROJECTS ARE ASSESSED FOR ADEQUATE:
- Engineering
• Timing
• Cost
• EPA RATES EACH PROJECT AS HiGH, MEDIUM, OR LOW IN TERMS OF
THEIR POTENTIAL ENVIRONMENTAL IMPACT IF NOT FUNDED
• EPA’S ASSESSMENT OF EACH PROJECT 1S PROVIDED IN A REPORT TO
0MB IN SEPTEMBER OF EACH FISCAL YEAR
• EPA IDENTIFIES A 106 PRIORITIES FOR EACH MEDIA PROGRAM
-------
CHAPTER V COMPLIANCE MONITORING
ANNUAL TIMETABLE OF KEY A406 EVENTS
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AND
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CHAPTER VI - ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS AT FEDERAL FACILITIES
OVERALL COMPLIANCE POLICY AND PHILOSOPHY
EPA’S OVERALL COMPLIANCE POLICY AND PHILOSOPHY:
• ENFORCEMENT ESSENTIAL TO ENSURE FF COMPLIANCE
• ADHERENCE TO CONCEPT OF TIMELY AND APPROPRIATE
ENFORCEMENT RESPONSE
• EMPHASIS ON NEGOTIATION TO EXPEDITIOUSLY RESOLVE
NONCOMPLIANCE PROBLEMS
• SAME ENFORCEMENT RESPONSE FOR FF VIOLATIONS IN GENERAL
AS NON-FEDERAL FACILITIES
-------
CHAPTER VI - ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS AT FEDERAL FACILITIES
EPA ‘S RESPONSE TO FEDERAL FACILITIES VIOLA TIONS
FACTORS WHICH DISTINGUISH EPA’S ENFORCMENT RESPONSE AT FFs:
• E.O. 12088 MANDATE TO PROVIDE TECHNICAL ASSISTANCE
• EMPHASIS ON BILATERAL, MUTUAL NEGOTIATIONS
• NO JUDICIAL ACTION BY EPA
• NO ASSESSMENT OF CIVIL PENALTIES AGAINST FFs
• RELIANCE UPON ADMINISTRATIVE ENFORCEMENT MECHANISMS
• ADDITIONAL DISPUTE RESOLUTION PROCEDURES TO ADDRESS
UNRESOLVED COMPLIANCE ISSUES
-------
CHAPTER VI - ENFORCEMENT RESPONSE TO
PROBLEMS AND VIOLATIONS AT FEDERAL
COMPLIANCE
FACI LITI ES
FEDERAL FAcILITIES COMPLIANCE RESOLUTiON PROCESS
EPA
NOT FICA TION
F.dsval
IUSs1 k. SIi..I, md spp,.p.IsIs 11.fr.....
psiysk.S c.pn.nc. O .. sec.pS.bIs s h.d.Só.
-------
CHAPTER VI ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS AT FEDERAL FACILITIES
EPA INITiAL ENFORCEMENT RESPONSE
INITIAL ENFORCEMENT INITIAL ENFORCEMENT
RESPONSE DIRECTED AT RESPONSE DIRECTED AT
FEDERAL FACILITY _ PRIVATE PARTY
• GOGO • GOCO
• PERMITTEE • GOPO
• WITHDRAWAL • COCO
FROM PUBLIC
USE • COCO(E)
• P060
• LEASEE
• GRANTEE
• CLAIMANT
• PATENT HOLDER
• HOLDER
-------
CHAPTER VI ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS AT FEDERAL FACILITIES
STATE RESPONSE TO FEDERAL FACILITIES VIOLATIONS
DELEGATED STATES OR AUTHORIZED STATE PROGRAMS HAVE PRIMARY
RESPONSIBILITY FOR RESPONDING TO FF VIOLATIONS
• EPA RETAINS PARALLEL AUTHORITY AND RESPONSIBILITY TO
ENFORCE FEDERAL LAW
• EPA ENFORCEMENT ACTION WILL ONLY TAKE PLACE WHEN
DELEGATED OR AUTHORIZED STATE:
Fails to Take Timely and Appropriate Action
Requests EPA to Take Lead or Joint Enforcement Action
- In Other Limited Circumstances
• STRATEGY RECOGNIZES STATES HAVE BROADER ENFORCEMENT
AUTHORITIES
• STATES ARE ENCOURAGED TO PURSUE:
- Bilateral, Negotiated Agreements, Consent Orders or Decrees, QR
- Three-Party Agreements (EPA/State/Federal Agency)
-------
CHAPTER VI ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS AT FEDERAL FACILITIES
EPA-LEAD INSPECTIONS
• EPA GENERALLY PROVIDES DELEGATED STATES WITH:
- Advanced Notilication Prior to Inspections
• Opportunity to Participate
• DELEGATED STATES ARE ALLOWED FIRST OPPORTUNITY TO TAKE
ACTION ON VIOLATIONS IDENTIFIED THROUGH EPA INSPECTIONS
• EPA AND STATE WILL MUTUALLY DECIDE WHO WILL TAKE FOLLOW-UP
ACTION
• EPA MAY PROVIDE TECHNICAL ASSISTANCE AND SUPPORT TO
FEDERAL AGENCIES IN CASES WHERE STATES HAVE ASSUMED LEAD
-------
CHAPTER VII - FEDERAL FACILITiES IN THE STATE/EPA
ENFORCEMENT AGREEMENTS PROCESS
STA TE/EPA RELA T1ONSHIP
STATE AND FEDERAL ROLES ARE DEFINED THROUGH NEGOTIATED
MULTI-YEAR STATE/EPA ENFORCEMENT AGREEMENTS
• AGREEMENTS ARE REVIEWED ANNUALLY ON STATE-BY-STATE BASIS
FOR EACH ENVIRONMENTAL PROGRAM
• IMPLEMENTATION OF THESE AGREEMENTS IS GUIDED BY:
• EPA “Policy Framework for SIateIEPA Enforcement Agreements”
• Associated National Program Implementing Guidance
• Annual Guidance Memo from Deputy Administrator
• PURPOSE OF THESE AGREEMENTS IS TO ESTABLISH:
- Criteria for Effective Slate or EPA Program
• Clear Roles and Responsibilities for State and Federal Enforcement
-------
CHAPTER VIII - EPA ROLES AND RESPONSIBILITIES FOR
PROGRAM IMPLEMENTATION
REGIONAL OFFICE STAFF
- -1
I
I
I
- —
PROGRAM
STAFF
i4 _*
FEDERAL
FACILITY
COORDINATOR
.
REGIONAL
ADMINISTRATOR
DEPUTY
REGIONAL
ADMINISTRATOR
I
I
I
I
-------
CHAPTER VUl EPA ROLES ANP RESPONSIBILITIES FOR
PROGRAM IMPLEMENTATION
DUTIES OF FEDERAL FACILITY COORD1NA TORS
THE FFC SERVES AS LIAISON WITH:
Regional Media Program Offices
- All Federal Agencies
- FA
SPECIFIC DUTIES INCLUDE:
- Assisting Ifl Resolving FF Compliance Problems
• Monitoring. Actions Taken by Regional Staft to Resolve FF Compliance
Problems
• Providing Data to OEAIOFA on Compliance Status of FFs In RegIon
• Ensuring RegiöAal Staff Are Knowledgeable Concerning OEAIOFA
Guidance
-------
CHAPTER VIII EPA ROLES AND RESPONSIBILITIES FOR
PROGRAM IMPLEMENTATION
EPA HEADQUARTERS OFFICE STAFF
OFFICE OF
ENFORCEMENT
AND COMPLIAN
MONITORING
-------
CHAPTER VIII - EPA ROLES AND RESPONSIBILITIES FOR
PROGRAM IMPLEMENTATION
DUTIES OF OENOFA
THE SPECIFIC DUTIES OF OEAIOFA INCLUDE:
Ensuring Proper Implementation of E.O. 12000
- Preparation of Reports on Compliance Status of FFs
OEAIOFA:
- Establishes Agency PolIcy and Guidance on FF Compliance In
Consultation with Other Headquarters Program Offices
• Principal Point-of-Contact with National Offices of Other Federal
Agencies
- Lead Office In Resolving FF Compliance Problems Escalated for
Dispute Resolution
• Conducts Annual Audits (i.e. FARES reviews) of Regional FF
Programs
-------
CHAPTER IX - MANAGEMENT ACCOUNTABILITY AND EVALUATION
STRATEGIC PLANNING AND MANAGEMENT SYSTEM
• SPMS TRACKS AGENCY’S PROGRESS AND GUIDES IMPLEMENTATION
OF ITS LEGISLATIVE MANDATES
• SPMS TRACKS PROGRESS OF ANNUAL COMMITMENTS OF EACH MEDIA
PROGRAM
• QUARTERLY PROGRESS REPORTS ARE PRODUCED FOR KEY PROGRAM
AREAS AT NATIONAL, REGIONAL AND STATE LEVEL
• SEPARATE REPORTING FOR FF SIGNIFICANT VIOLATORS IS INCLUDED
IN EACH PROGRAM’S QUARTERLY REPORT
• SPMS MEASURES FOR FF COMPLIANCE PROGRAM FOR FY87:
- Addressing Program Priority Facilities Through A-106
• Potentially Significant Minor Sources
- Environmentally Significant Facilities
• Compliance Management Plans
-------
CHAPTER IX - MANAGEMENT ACCOUNTABILITY AND
EVALUATION
REPORTED PERFORMANCE MEASURES
EPA HAS FIVE MEASURES OF COMPLIANCE AND ENFORCEMENT
PERFORMANCE FOR REPORTING PURPOSES:
COMPLIANCE RESULTS MEASURES ARE:
• Overall Compliance Rate for the Regulated Community
• Correction of the Most Significant Violators or Significant
Noncompi iers
• ENFORCEMENT ACTIVITY MEASURES INCLUDE:
• Inspection Levels or Facilities Inspected
• Formal Administrative Enforcement Actions Undertaken
• Judicial Referrals and Filed Court Cases
-------
CHAPTER IX - MANAGEMENT ACCOUNTABILITY AND
EVALUATION
FEDERAL ACTIVITIES AND REGIONAL EVALUATION SYSTEMS
OFA CONDUCTS FORMAL COORDINATED EVALUATIONS OF FF
COMPLIANCE PROGRAMS THROUGH FARES:
• REVIEWS ARE CONDUCTED AT LEAST TWICE A YEAR
• PURPOSE OF REVIEW IS TO:
- Evaluate Regional Performance in Achieving National Program
Objectives
- Identify Significant Problems and Issues
- Provide Mechanism for Sharing Program Experience and Expertise
- Ensure National Consistency in Program Implementation
-------
CHAPTER IX - MANAGEMENT ACCOUNTABILITY AND
EVALUATION
SIGNIFICANT NONCOMPLIERS AND SIGNIFICANT VIOLATORS
MEDIA PROGRAMS WITH DEFINITIONS OF SIGNIFICANT NONCOMPLIERS
AND SIGNIFICANT VIOLATORS (Exhibit IXi):
HAZARDOUS TOXIC
WA 1 I SUBSTANCES Lifi
NPDES CERCLA TSCA FIFRA CAA
PWSS RCRA
U,c
FF VIOLATORS ARE IDENTIFIED AND TRACKED ON A QUARTERLY BASIS
-------
EPA ENFORCEMENT AT
GOCO* FACILITIES
* Government-Owned/Contractor-Operated Facilities
Office of Federal Activities
Washington, D.C.
-------
IDENTIFICATION OF THE GOCO UNIVERSE
r. I
ir r
I I
DOE
ARMY
NAVY
DLA
AIR FORCE
NASA
130 GOCO Facifities identified
by Federal Agencies
5
“KNOWN UNIVERSE”
-------
TYPES OF GOCO FACILITIES
• USAF Industilal Plants (Aircraft,
Missile, Space Shuttle, Bombing System
Production)
• Army Ammunition Plants
Army Aircraft, Engine and Tank Plants
• Naval Industrial Ordnance Plants
• Naval Weapons Plants
• Naval Ship Repair Facilities
Defense Fuel Supply Centers (DLA)
-------
TYPES OF GOCO FACILITIES
(Continued)
• DOE National Research Laboratories
DOE We pons Testing Support
Facifitles
DOE Atomic Power and Nuclear
Reactor Facilities
• DOE Strategic Petroleum Reserves
• NASA Assembly Facilities and
Indu tria1 Plants
• NASA Jet Propulsion Laboratories
-------
DEFINITION(S) OF GOCO FACILITIES
EPA Federal Facilities Compliance
Strategy:
GOCO = “Government Facility owned by a
Federal Agency. but all or portions of it
are operated by private contractor(s).”
-------
FEDERAL FACILITIES WITH PRIVATE
ARRAN GEMENTS
vs. GOCO
vs. COCO
vs. COCO(E)
G000 vs. POGO
vs. GOPO
vs. JOCO
vs. Leasee
vs. Grantee
Federal Lands vs. Claimant
vs. Patent Holder
vs. Perrnittee
vs. Withdrawal
-------
HISTORY OF FEDERAL
GOVERNMENT GOCO POLICY
October 1983 • DOJ - Response Letter to Rep. John Dingell:
“. . . is prepared to sue GOCO facilities when the
contractor is the responsible party and It is
otherwise appropriate. . .“
april 198Z • DOJ - Written Testimony at Oversight Hearing:
• . ready to utilize the full panalbpy of its judicial
enforcement tools against GOCO violators. . . on
Federal ti’s
-------
HISTORY OF EPA GOCO POll Y
1983-85 • OAR - 2 Memos on GOCO
Enforcement to EPA
Regions
1985-88 • OSW R - 5 Memos to EPA Regions
on GOCO Enforcement,
• Permit issues and
Operator Determinations
1988 • EPA Administrator - Letter to Other Agencies
claiifylng full applk abffity
of SARA Title III to
contractors at GOCOs
-------
EPA GOCO POLICY IN THE FEDERAL
FACILITIES COMPLIANCE STRATEGY
pursue full range of its enforcement
authorities vs. contractor operators of
government owned facilities.. .“
AND
“. . . also may take enforcement actions
against Federal agencies. .
OR
• It may pursue enforcement action
against both. .
-------
EPA GOCO POLICY IN THE FEDERAL
FACILITIES COMPLIANCE STRATEGY
• Initial Enforcement Response influenced by:
- Statutory language re: owner/operator;
- Party or parties holding permit:
Contractural arrangements;
- Nature and type of violation(s);
- Other factors.
• Focus is on EPA’s “Initial” Enforcement Response
- Additional Information may affect which
party any further action should be taken
against.
-------
GOCO ENFORCEMENT RESPONSE
EPA INITIAL ENFORCEMENT RESPONSE
TO VIOLATIONS AT FACILmES WITH FEDERAL INVOLVEMENT
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-------
EPA GOCO POLICY IN THE FEDERAL
FACILITIES COMPLIANCE STRATEGY
Notification Procedures for Actions at GOCO Facifitles:
• EPA Enforcement vs. Contractor:
- Copy (cc) of notice sent to Federal agency
- Plus a Letter to agency:
--Emphasizing Importance of responsibilities to
oversee contractor
--Request agency’s cooperation in returning facility
to compliance quickly
• EPA Enforcement vs. Federal Agency:
- Enforcement Action sent directly to agency officials
- Copy of notice sent to involved contractor
-------
EPA GOCO POLICY IN THE FEDERAL
FACILITIES COMPLIANCE STRATEGY
Contractor Listing Program (CAA, CWA):
- Results In Ineligibility to receive government
contracts
- Clarifies applicability to GOCO contractors
- Congress has Introduced legislation to
expand to Include RCRA
-------
EPA GOCO POLICY IN THE FEDERAL
FACILITIES COMPLIANCE STRATEGY
• EPA commlttment “to develop an Agencywide GOCO
Enforcement Strategy”
To provide:
“...more detailed criteria and factors to be considered
In determining which party to pursue
enforcement action against.”
-------
COLLOQUIUM ON EPA ENFORCEMENT
AT GOCO FACILITIES
• Sponsored by EPA Office of Federal ActivitIes (October 1988)
• “Springboard” for development of an EPA GOCO Enforcement
Strategy
• Forum for exchange of viewpoints among all affected parties:
- EPA Hg and Regions
Federal Agencies
- Government Contractors
- State Agencies
- EnvlronmentaJ and Public. Policy Groups
- Private Law Firms
• Intended Outcome:
- Identification of key Issues for EPA GOCO Strategy
-------
EPA GOCO ENFORCEMENT STRATEGY
Schedule and Milestones:
August 1988 - Formation of EPA GOCO
EnforceA ient Workgroup
October 1988 Colloquium on EPA Enforcement at
GOCO Facilities
December 1988 - Colloquim Proceedings Completed
March 1989 - Draft Strategy (review/comment)
September 1989 - Final Strategy
-------
KEY QUESTIONS
• What are GOCOs?
• Why are there GOCOs?
• Who determines whether a GOCO is a GOCO?
• Are there different types of GOCOs?
• When Is a GOCO not a GOCO?
• Which party should EPA enforce against at
GOCOs?
-------
PROCEEDINGS:
COLLOQUIUM
ON
EPA ENFORCEMENT AT
GOCO FACILITIES
OCTOBER 26-27, 1988
WASHINGTON, D.C.
OFFICE OF FEDERAL ACTIVITIES
U.S. ENVIRONMENTAL PROTECTION AGENCY
-------
COLLOQUIUM ON EPA EIIYOMCZaNT AT GOCO FACILITIES
IIITRODUCTOR! RZXARZS
BARRY BREEN. Colloquium Moderator. Environmental Law Institute.
Washin tori. D.C .
Mr. Breei i welcomed the attendees to the G000 Colloquium. He
spoke of the federal agencies’ need for a cohesive, coherent
strategy towards government contractors at G000 (Government Owned,
Contractor Operated) facilities. Be commended the expert speakers
and panelists and looked forward to hearing their opinions of vhat
ought to be EPA’s GOCO strategy.
JENNIFER JOY WILSON. EPA Assistant Administrator for External
Affairs. Washington. D.C .
Ms. Wilson’s Office of External Affairs is responsible for
legislative analysis, Congressional liaison, and environmental
impact studies, compliance, and enforcement concerns of the federal
agencies. Ms. Wilson stressed the importance of a mutually
understandable approach towards GOCO enforcement. She was
encouraged that this colloquium would provide an important policy
forum for dialogue and the active exchange of ideas. This
colloquium is consistent with EPA’s new Communications Strategy
Process, which clarifies the importance of open and accessible
communication with the public and advance consultation with
interested parties. She is hopeful that the Federal agencies,
their contractors, and EPA will learn much from each other.
PLENARY SESSION:
PERSPECTIVES OW EPA 0000 POLICIES
Discussion of present and past EPA and Federal government policies
and enforcement at GOCO facilities and how this fits into EPA’s
overall strategy for compliance at Federal facilities.
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RICHARD SANDERSON. EPA. Director. Office of Federal Activities.
Washington. D.C .
Mr. Sanderson highlighted key points in EPA’S Federal Facility
Compliance Strategy, a guidance and reference document vhich
provides a uniform framework for all EPA media programs to follow
in undertaking compliance end enforcement activities at Federal
facilities. See the Executive Summary of the Strategy in the
Colloquium materials.) Mr. Sanderson pointed out that Federal
facilities are legally required to comply with the environmental
statutes, and it is the EPA Administrator’s goal that Federal
agencies meet or exceed compliai ce rates in the industrial and
municipal sectors.
He spoke of the efforts of the Office of Federal Activities to
implement the Strategy’s initiatives through improvements in EPA’S
oversight role, through the Federal Agency A-l06 Pollution
Abatement Planning Process, innovative compliance management
techniques (e.g., environmental auditing) and refinements of the
EPA’s compliance and tracking monitoring system for Federal
facilities.
The Federal Facilities Compliance Strategy also clarifies EPA’s
authority to take enforcement actions against GOCOs and commits EPA
to development of a follow-up GO O enforcement strategy.
THOMAS BICK. Trial Attorney. DeDartment of 3ustice. Environmental
Enforcement Section. Washington. D.C .
(Worked on both the Rocky Mountain Arsenal case involving Shell,
and the Air Force Plant #4/General Dynamics case)
Mr. Bick declared his strong personal bias against litigation.
He feels litigation is one of the worst ways to make decisions
about compliance, especially in the environmental area, since it
is long, protracted, and expensive. Furthermore, he finds it
imprudent to leave the decisiorimaking to Federal judges.
Mr. Bick outlined DOJ’s five basic principles underlying
enforcement at GOCO facilities:
1) Enforcement of Executive Orders : Federal agencies that own
GOCO facilities are required to comply with all statutes the same
as private facilities. A series of executive orders make it clear
that all Federal facilities must conform with environmental laws.
However, in the Yustice Department’s view, executive orders, are
not judicially enforceable.
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2) Enforcement of Environmental Statutes : Further, although
federal environmental statutes require Federal agencies to comply
with both their procedural and substantive provisions, there are
critical Constitutional and statutory restrictions which preclude
enforcement. EPA may not bring a lawsuit against another executive
agency to compel it to comply with an environmental statute or
regulation. Articles XI and XXI of the U.S. Constitution are
cited as establishing the “unitary executive” doctrine. Mr. Bick
also argued the principle’s practicality: litigation by EPA would
be extremely protracted and expensive for the Government.
3) Enforcement through Unilateral Administrative Orders : Based
on its interpretation of Article II of the Constitution, DO7
maintains that EPA may not issue unilateral administrative orders
against other Federal agencies to compel compliance unless the
Federal agency has first had the opportunity to bring the dispute
before the President or a Presidential designee.
4) State Enforcement and Citizen Suits : Although EPA may be
restricted in enforcement actions against Federal facilities,
waivers of sovereign immunity can leave Federal agencies
susceptible to state or citizen suits. However, courts construe
such waivers narrowly and most waivers do not permit the collection
of monetary penalties. Because waivers of sovereign immunity are
found in statutes rather than in the Constitution, Congress could
expand the scope of the waiver by revising environmental statutes.
(5) Similarity to Contractors at Private Facilities : Private
contractors operating GOCO facilities are subject to all
procedural and substantive requirements to the same extent as
contractors at private facilities (e.g., suit against General
Dynamics, a contractor at an Air Force plant in Texas, for Clean
Air Act violations.)
Mr. Bick then outlined a typical two—step process: first, look
at the environmental statute to ascertain whether the contractor
is a liable party (e.g., “owner or operator”) and second, look at
the factual relationship to ascertain who is the actual operator.
Mr. Bick concluded with two rules of thumb: 1) even where the
Federal agency and its contractor share responsibility for the
operation of a GOCO facility, D0 1 7 contends that the contractor
falls within the statutory definition of operator and can be sued,
and 2) indemnification provisions are not a consideration when DOJ
decides whether to bring an action against a contractor.
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IVY MAIN 1 EPA Office of General Counsel.Hpzardpus Waste Division.
Washinaton. D.C .
EPA’S position on enforcement parallels DOT’s. EPA can bring
action against the Federal agency or the contractor, and EPA will
bring action against contractdrs where it sees fit.
RCRA and CERCLA expressly cover “owner or operator.” The Clean
Air Act refers to “persons,” which, ux d2r federal regulations and
case law, mean both the Federal agency and the contractor.
Where the federal government is itself subject to a statute,
the contractor is clearly covered as well. And where the federal
government is not subject to a statute, the contractor may,
nevertheless, be covered (e.g., Title III of SARA does not cover
Federal facilities, but government contractors must comply).
EPA does not regard a contract as shielding the government
contractor. Liability cannot be “contracted away.” The case law
tends to expand liability to make a contractor—operator liable for
violations it committed in situations where it does not have full
responsibility for the facility.
CHERYL WASSERMAN. EPA. Actina Director. Office of Enforcement
Policy. Office of Enforcement and Compliance Monitoring
Ms. Wasserman began by questioning the need for a GOCO
Colloquium if EPA can legally bring enforcement actions against
GOCO contractors. She then pointed out the necessity for clear
ground rules, so that all are aware of their accountability. She
also noted that policy questions remain open: even though EPA can
go after GOCO contractors, when and where should EPA bring such
enforcement actions? Ms. Wasserman stressed that confusion is the
enemy of compliance.
Ms. Wasserman spoke of EPA’S general bias towards private party
enforcement. She suggested that a contractor, faced with the
prospect of fines, penalties, and debarment listing, may have
greater leverage against a Federal agency than EPA does and the
GOCO operator may insist on compliance measures. She found it
untenable that a Federal agency would shield private party
contractors from liability.
Ms. Wasserman identified three major issues:
1) Permit holder issue : Under R RA the operator must be a
signatory (see 6/24/87 memo in the Colloquium materials). Often
both the contractor and the Federal agency will sign, but that does
not preclude EPA from going after the contractor. Similarly, NPDES
permits for POTWs, where the POTW is privatized, are signed by
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both the operator and the municipality.
2) Contractual vs. Factual Relationship : EPA viii determine
who is the responsible party based on the facts, and not
necessarily on the wording of the contract.
3) Degree of Control : It is the responsibility of those
entering into a contract to specify who is really in control and
thus is best able to ensure compliance. -
QUESTIONS AND COMMENTS FOLLOWING ‘HISTORICAL PERSPECTIVES” SESSION
In response to a question about the impact of two recent
Supreme Court decisions (Boyle and Goodyear), Mr. Bick pointed out
that both cases were based on state, not federal, law. Therefore,
Mr. Dick felt the decisions will have no impact on the enforcement
of federal environmental statutes.
In response to a question about the proposed bill establishing
an EPA Special Counsel for Federal facilities compliance (H.R.
3782), Mr. Bick said that DOJ opposes it. He added that Federal
agencies may be more likely to hide information from EPA if there
is a Special Counsel. Ms. Wasserman added that EPA has
practical objections to the bill, in that establishment of a
Special Counsel would frustrate the relationship between EPA,
Federal agencies, and contractors, and make effective dispute
resolution more difficult.
PANEL A: DEFINING THE 0000 VIIIVflS!
PurDose :
Definition(s) of GOCO facilities and examination of the various
roles of government contractors in activities and operations at
Federal facilities.
) !ES R. EDWARD. EPA. DeDutv Director. Federal Facilities
ConDliance. Office of Federal Activities. Washington. D.C .
EPA can exercise the full range of enforcement actions against
contractors at GOCO facilities. Mr. Edward, however, also
recognized the necessity of understanding Federal agencies’
definitions of GOCOs and their relationships.
The Federal Facilities Compliance Strategy indicates EPA’s
commitment to develop an agency—wide, multimedia GOCO enforcement
strategy. In the Strategy, EPA defines GOCO as a “government
facility owned by a Federal agency, but, all or portions of it, are
operated by private contractor(s).” The critical language in the
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definition is “all or portions of,” since it acknowledges that
an entire site, or simply one discrete unit on a site, may be
considered a GOCO.
Mr. Edward pointed out the variety of other private party
arrangements at Federal Facilities,such as COCOs, COCO(E)s, and
Gopos, that should be distinguished from GOCOs.
There are an estimated 130 GOCO facilities. The Department of
Energy owns GOCO research labs, weapons testing and ‘atomic power
sites, which account for 48 facilities. The Department of Defense
owns ammunition plants, fuel supply and industrial ordinance
plants, constituting another 77 facilities. The remaining 5
facilities belong to NASA.
In anticipation of an EPA GOCO enforcement strategy, Mr. Edward
recognizes the need for refining the definition of GOCO. He posed
6 key questions for consideration by the panel: What are GOCOs?
Why are there GOCOs? Who determines whether a GOCO is a GOCO? Are
there different types of GOCOs? When is a GOCO not really a GOCO?
Which party should EPA enforce against at GOCOs?
DENNIS TROSCL Assistant General Counsel (Logistics). Department
of Defense. Washinaton. D.C .
Mr. Trosch emphasized the diversity, both geographical and
functional, of DOD’s contractors. DOD has a long tradition of
using defense contractor-operated facilities to help fulfill its
mission. DOD GOCOB tend to serve in a more technological capacity.
Mr. Trosch said that once a Federal agency has financed a
contractor it should expect that contractor to operate the facility
as if it were the contractor’s own plant.
Under the FAR and DAR, whenever the government acquires any
equipment, including real property, and turns it over for the
contractor to use, it is considered a “facility”, but DOD would not
consider a “facility.” However, DOD does not consider the mere
loan of equipment to a contractor to be a “facility;” real
property must be in the equation.
He pointed out that JOCOs (jointly owned, contractor operated)
are prevalent in the Navy. There it is visibly difficult to
discern who operates particular portions of a facility, and, in
fact, it is often treated as an integrated facility.
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BILL SNYDER. Chief Counsel.Oak Ridge Operations Office, Dept of
Enerav. Oak Ridge. TN
DOE resists any single definition of GOCO. In fact, DOE does
not consider its contractors to be ‘GOCO contractors”, but instead
considers them “management and operating”(X&O) contractors.
In the 1940s the Atomic Energy Commission turned to the
industrial and scientific community to help it fulfill its mission.
Following World War II the contract arrangements were formalized.
Such contracts are still being used, primarily in the nuclear
field.
No two )I&O contracts are alike, but there are common features.
All have a broad scope of work. All the facilities are federally
owned. The contractor has no investments in the plant; it owns
none of the property and does no private work at the site. DOE
advances money to the contractor, so it does not use its own
private funds. Furthermore, the GOCO facility’s accounting system
is financially integrated in to DOE’s system to keep track of the
property as well as the salaries and expenditures. DOE encourages
its contractors to operate at a facility as a self—contained unit,
as if the site were a subsidiary to the parent corporation, with
separate accounting, purchasing and legal departments.
DOE has struggled with defining the status of its contractors
and concludes that, at best, a DOE contractor is an invitee: it
does the work and then leaves; it makes no private investments in
the plant and operates on funds it receives in advance.
Contracts cover five-year periods, but DOE selects contractors
anticipating long-term relations. Most contractors do stay on for
a significant time through contract renewals. When there is a
change of contractors, DOE expects the new contractor to replace
only those who were employed in top management and other
policy-making roles. In the interest of continuity, lover level
employees do not change. The contract is performed through two
instruments: (1) authorizationa]. letters, which are sent
periodically to the contractor and set broad terms of production,
and (2) funding program approval, which notifies the contractor how
much money is authorized in order to do the work.
Most DOE contracts are award fee contracts, where the
performance is graded and the fee relates to the grade.
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G. TED ANKRUM. Deputy Assistant Associate Administrator. Facilities
ManacTepent NASA HeadcTuarters, Washington. D.C .
NASA has several classic GOCOB (e.g., Michoud Assembly Plant,
operated by Martin-Marietta) and also some “odd arrangements”
(e.g., Jet Propulsion Lab, operated by Cal.Tech., which claims it
is not a GOCO but rather a “federally funded R & D center”).
Under NASA policy, scientific and engineering work should be
performed by civil servants. In order to maintain this core
capability, NASA has been contracting out more and more of its
non-scientific activities. JFK Space Center is a good example.
NASA has three major contracts there: a payload processing
contract, a shuttle processing contract, and a base support (steam,
heating plants, trash pickup, etc.) contract. Particular
facilities are assigned to each contractor, for which each is
solely responsible. This prevents any problem with commingling of
operations. NASA considers contractor accountability to override
the expense of duplication of activities.
Although a NASA contractor has considerable autonomy in its
day-to-day operations, it has no authority to undertake major
capital projects in the NASA facilities that they occupy and
operate. Congress must appropriate funds for any capital project
costing more than $100,000. For example, if there is a hazardous
waste storage container that does not meet regulatory requirements
and an expensive devise is needed to remedy the violation, the
contractor lacks the autonomy to undertake the work itself. In
such a situation, NASA feels it would serve no useful purpose for
EPA to bring an enforcement action against the GOCO contractor.
NASA will pay for the expenses as an “allowable cost.” On the
other hand, if a contractor’s wilful misconduct creates a
violation, NASA would probably find an EPA enforcement action
useful.
NASA feels it has been open with EPA about the operations of
its facilities. NASA intends to comply with the environmental
laws; it has a long list of projects that need funding and it has
gone to Congress to request money. EPA should come to NASA first,
to discuss any compliance problems. NASA feels an “across the
board” GOCO strategy serves no useful purpose and EPA should
address GOCO problems on a case-by—case basis.
BERNARD HYDE. Chief. Hazardous Materials Staff. Bureau of Land
Management. Washington. D.C .
Mr. Hyde felt EPA needs to expand its consciousness about
GOCOs. HIM administers public lands for an array of uses,
sometimes on discrete lands and sometimes on tracts of alternating
private, state, and local land ownership. Land is leased for long
terms or withdrawn from public use in perpetuity. Federal
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agencies, especially DOD, DOE and NASA, need lands for their sheer
space requirements of their activities. States and localities use
the lands for non-federal purposes, like parks and disposal sites.
BIM objects to the current definition of GOCO, because it makes
each BLZ’! user a potential GOCO. BIN contends that it should not
be held responsible for releases by others that happen to occur on
Federal lands. ELM has little or no control over the day-to—day
activities on its lands —-. et when a recalcitrant lessee is
unavailable, BLM is considered, the guarantor of last resort and the
ultimate owner of the site.
Mr. Hyde was particularly concerned about the public lands that
have been leased for landfills. Where lease provisions are
violated (e.g., hazardous waste problems), the possession of the
leased property is required to be returned to BLM. ELM feels it
has
become an easy target. Mr. Hyde hoped DOI,EPA and DOS can find
better methods and deal more effectively with this problem and find
the real violators.
Mr. Hyde advocates improved communication, improved
coordination and cooperation, and higher levels of notification by
the states and EPA regional offices.
ODESTIONS AND CO ENTS FOR PANEL A
In response to a question about the discrete units within a
NASA installation (e.g., hazardous waste storage facility), Mr.
Edward commented that the current EPA definition of GOCO (“all or
portions of”) implies that such a discrete unit may be considered
a GOCO.
PANEL B: LEGAL RZLATXONBEXP BETWEEN 0000’i MID FEDERAL AGENCIES
PurDose :
Exploration various contractual arrangements, including the scope
of employment and the influence of indemnification provisions and
the Federal Acquisition Regulations.
Panel Moderator: PROFESSOR JOHN CIBINIC.. George Washinaton
University Law School
Professor Cibinic spoke of the legal relationship between
contractors and Federal agencies and the importance of clarifying
who will be liable for violations. Re emphasized the importance
of personal responsibilities as well as institutional obligations.
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M RY BOSCH. Department of Fneruv. Washington D.C .
Ms. Bosch spoke of the variety of contract arrangements with
DOE. DOE uses its Management and Operations (M&O) contractors to
carry out its statutory functions. (In fact, for every DOE
employee there are thirty contractor employees.) The contractors
are hired for their technological and tanagerial expertise. The
government sets general standards, but exercises significant
oversight to ensure prudent expenditures. As a result, there is
a delicate
balance between government supervision and the contractors’ own
control.
DOE considers its relationships with its contractors to be
partnerships from which a “commona]ity of interest” develops
outside of the contract.
a) First, the contract is very short and broad. The terms of
the sob, such as timetables, are worked out between the contractor
and DOE, outside the contract.
b) Second, the contractor at a DOE facility is minimally
capitalized. DOE essentially expects its contractors to take very
few risks. As a result, the contractors recover low fees or even
no fees. Costs incurred in the performance of the contract are
generally allowable, if they are considered business expenses,
including program foul—ups or employee negligence. Fines and
penalties are allowable, if the violation occurred in the
performance of the contract, or if the payment was approved by the
contracting officer. But fines for violations due to willful
misconduct are not allowable. Finally, the contractual
arrangements are intended to be long-term. The contractor is given
significant management responsibilities.
Ms. Bosch noted some areas of tension. DOE has recently been
pushed to have an arm’s length relationship with its contractors
in the area of fee structure; the shift from fixed fees to award
fees could be a disincentive for the contractor to be forthcoming
with DOE. Also, in the area of technology transfer, some
contractors (especially university operators) are entitled to
ownership of patents. There is some concern however that this may
dilute the commonality of interest.
C) Third, the Price—Anderson amendments on contractor
indemnification for nuclear damages authorize the Secretary of DOE
to levy fines against contractors. But this final concern should
not really pose problems, because DOE is exploring ways to
implement the law without destroying the special relationships it
has with its contractors.
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JONATHAN BLUCHER. U.S. Air Force Systems Command. Boiling AFB.
Washinaton. D.C .
(See handout: “Pollution Prevention and Cleanup i.Who Pays?”)
Mr. Blucher provided an overview of the types of government
contracts —- fixed price and cost type contracts • For every
contract there is a significant distinction between allowable and
unallowable costs. In negotiations with a contractor the
government is expected to agree only to allowable costs. An
allowable cost must be reasonable, allocable, and permitted by the
cost principles.
There is no specific cost principle for pollution prevention
and cleanup costs, but one is currently being drafted. In the mean
time, FAR principles instruct one to reason by analogy. Pollution
costs are permitted by practice and analogy as ordinary business
expenses when they are reasonable and legally required. The costs
are allocable to plants and plant contracts. However, the cost is
permitted if the pollution was illegal when it occurred. After
all, the government should not subsidize an illegal action.
Mr. Blucher then outlined how the Air Force might pay for a
contractor’s pollution cost. There may be a direct charge, in
response to a consent decree. Or there may be an indirect charge,
either via overhead on all the contracts (depreciation, after all,
is allocable) or via overhead negotiated in advance of fixed
agreement. (Note that the rate would be an estimation and
it would not be corrected for fixed price contracts.)
Mr. Blucher commented that pollution costs will be borne by the
government in proportion to the government contracts involved. The
contractor is considered a mere conduit, and so the costs will
remain with the contract.
Mr. Blucher concluded by appealing to EPA and Department of
Justice to inform the Federal agency of noncompliance problems
before filing complaints.
ROBERT )WFTHAN. Partner 1 Miller & Chevalier. Washington. D.C .
(See also copy of “Contractual Recovery of Hazardous Waste Response
Costs at Federal Facilities: Hypotheticais/Iasues/Re]evant
Authority” in Colloquium Materials or available from author upon
request.)
Mr. Nuffman contended that although the existence of
indemnification and reimbursement clauses does not affect EPA’s
ability to bring enforcement actions against the GOCO contractor,
EPA should nevertheless take these issues into account. EPA must
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educate itself about the contractor’s ability to recover
costs from the government.
While there is nothing in the Federal Acquisition Regulations
(FAR) about reimbursement for response costs, and no uniformly
applicable indemnification provision, there is generally
indemnification or reimbursement by the government for any damage
or loss of property. Insurable damages, though, are often
excluded, and damages due to willful misconduct are also excluded.
Willful misconduct is narrowly defined as conduct that is worse
than gross negligence and more than simply illegal: it really
amounts to recklessly illegal action.
Insurance contracts may have clauses on property damage or
expenses incurred. Although some courts have considered response
costs to be economic loss, most courts are likely to consider the
costs to be government property damages.
Many indemnification provisions are worded in terms of “unusual
risk or hazard” and the definition will depend on the particular
agency’s determination. In older GOCO contracts, for instance, the
government was mere likely to treat contractor work as risky.
There remain questions about third party liabilities. EPA is
a Federal agency and so is different from a state environmental
enforcement agency. The Anti-Deficiency Act bears directly on
indemnification. For a Federal agency to indemnify against
uncertainties would be to violate the Anti-Deficiency Act,
and yet, that is still the practice.
Indemnification need not be express. Courts will recognize
implied indemnification as long as there is some indicia of formal
contract (offer, acceptance, mutuality, consent, consideration).
But note, when Johns-Mansvil le tried to argue that they had been
implicitly indemnified by the Navy, the court found that strict
liability was within the contemplation of the parties.
Mr. Ruffman found it difficult to see how cost principles
interact with indemnification provisions, since typically an
indemnification provision would cover expenses, not just
allowable and allocable costs.
Re would argue that cleanup costs are net punitive and not
fines and penalties. If there has been no willful misconduct, and
the terms of the indemnification clause have been met, then the
contractor ought not to be subject to cleanup cost liabilities.
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Ouest ions and comments for Panel B
Prof. Cibinic compared private enterprises and government
contractors. He commented that a private company cannot pass of f
all its pollution costs to the consumer, and asked why the
government contractors should not also have to bear some of the
costs, especially since such contractors are not as immediately
affected by competition.
Mr. Huffman commented that, as a policy matter, government
contractors should not have to bear any of the costs, unless the
pollution was clearly willful misconduct.
The comment was made that there seems to be little incentive
for compliance when reimbursement is assured. It was proposed that
contractors be required to pay insurance, thereby placing the
contractor at some risk. Insurance could have a deterrent effect;
in the event that the insurance company has to pay for noncompliant
activity, the contractor’s future premiums will increase.
In response to a question about remedial actions, Mr. Blucher
pointed out there is no cost principle for remedial actions and so
one draws analogies from fines and penalties as well as attorney
fees for defending criminals, where the principle is not to
subsidizes criminal involved in illegal acts.
PMIEL C: FSDERAL AG!NCT MAN1GEIIENT OF GOCO CO)ITRACTORB
PurDose :
Insight into the day-to—day operations at GOCO facilities including
Federal agency supervision, contractor’s obligations to notify, and
the allocation of costs and liabilities.
LTC LAPRY HOURCLE. Chief. Environmental Law Office. Headquarters
U.S. Air Force 1 Washinaton. D.C .
LTC Rourale commented on the importance of focusing on the
interrelationships between Federal agencies and contractors at the
operational level.
THOMAS ROW. Martin Marietta !nerav Systems. Oak RidQe. Tennessee
Mr. Row summarized the typical exchanges Martin Marietta has
with the Department of Energy. At the start of the year the
contractor submits proposals about what it needs in order to meet
existing standards. This is a full—funding document, but it is
understood that not all the pre eats can be realizable. DOE
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provides funding as is available. The money is entered in a
tracking system that parallels DOE’S. DOE also Bends authorization
and guidance letters, a hich charge the contractor to operate within
specified guidelines. There is, however, some flexibility within
the areas of management and technical skills. Martin Marietta
works under a strongly managed award fee system.
Martin Marietta haB regular contact with EPA’s regional office
as well as with DOE, the state, and sometimes local regulatory
officials. It receives much input from the regulators. They have
frequent meetings and correspond through E-mail and telephone
communications.
Environmental audits originate within Martin Marietta and its
operations are coordinated by the regulatory agencies.
WILLThI( MELTON. U.S. Army. Lake City Army Ammunition Plant. Jackson
County. MO
Mr. Nelton works in the chief Engineering Office at Lake city
Army Ammunition Plant, which is contractor—operated by Olin Corp.
He outlined the Army’s policies and practices at the site. The
Army considers the permittee to be the Army Commander, even though
it is the contractor that prepares the paperwork for the permit
application. This decision is based on the fact that the Commander
is in charge of allocating money.
The Army plant manager meets regularly with the contractor but
has limited supervision of the contractor’s daily, routine
operations. Given the current funding constraints, the Army plant
manager may establish some legitimate requirements.
Regarding fines, there have been two instances where fines have
been assessed to the contractor at the site; in neither case was
the expenditure reimbursed to the contractor. On the other hand,
the Army prohibits the contractor from investing its own capital
in operational improvements and related activities.
The Army has a policy of direct enforcement which acts as
leverage against its contractors. The Army is not convinced that
any more leverage from EPA is necessary. The Army already feels
accountable and is working continuously on improvements. It
resents EPA’s perception that the Army is recalcitrant.
Finally, Mr. )lelton commented on the Army’s need for
indemnification clauses in contracts: without such protection, the
Army feels it would be unable to find contractors willing to work
at a National Priorities List (NPL) site.
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ROBERT MUELLER. Olin Corporation. Lake City Army Ammunition Plant
Mr. Mueller felt that some contractual relationships inhibit
the contractor. The contract authorizes actions “to the extent
funds are made available by the Federal government.” Since these
funds are limited, this affects the contractor’s ability to meet
new environmental regulations in a timely fashion. Mr. Mueller
contended that the FAR should define liabilities in such
situations. The contractor is obliged to follow a technical data
package. It must follow the numerous specifications from which it
may not deviate without express approval. The contractor must
consult with the contracting officer before using money up to
$5,000 dollars, an it cannot use money over $5,000 dollars until
it consults with the procurement officer. Furthermore, the
Anti-Deficiency Act prohibits even voluntary actions by
contractors, including needed capital improvements. The biggest
struggle for the contractor is to secure enough money to pay for
projects required in the contract, such as recycling, pollution
abatement, emergency plans, officials and sanitary programs. The
Contract must get approval from the local Army officials for
maintenance, repairs, reorganization plans, etc.
JOHN NEPUT!. Chief of Industrial Enaineerina. Wright—Patterson Air
Force Base. Dayton. Ohio
Mr. Nepute began with an overview of Air Force activities. The
Air Force expects the contractor to implement environmental
programs on-site and to initiate budget proposals to carry them
out. The contractor will get legal and technical assistance from
senior systems commands, but not much help from the A? Plant
Representatives Office or the Defense Contract Administrative
Service Plant Representatives Office, since they have been
instructed to refrain from environmental activities at GOCOs.
Mr. Nepute pointed out that the basic objectives of the Air
Force’s environmental program are to comply with the law, to create
and maintain an environmentally safe working place, and to continue
a positive public image.
He cited progress in Air Force project.: environmental
auditing, waste minimization, installation restoration,
construction and modification of Treatment Storage and Disposed
Facilities, Underground Storage Tank programs, and PCB transformer
removal programs.
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3 XES LUCAS. Lockheed CorDoration. A? Plant No. 6
Mr. Lucas discussed contractor relations at Air Force Plant No.
6, where Lockheed operates a joint DOD/Industrial complex which
treats waste for all the site’s units. Lockheed gets “Direct
Facilities Contract Funding” and it can request anything over
normal costs.
ARTHUR LINTON. Federal Facilities Coordinator. EPA Realon IV.
Atlanta
The EPA Regions are the “enforcers” at Federal agencies’ own
facilities as well as at their GOCO facilities. Mr. Linton
stressed the importance of communication. He contended that all
parties involved are interested in what will work.
Mr. Linton talked of the positive history his Region has in
dealing with GOCOs. When Region IV issues NOVs to the base
commander it sends copies to the GOCO contractor.
Ouest ions and Comments about Panel C
In response to a question about Congressional awareness of the
funding problems, Mr. Linton stressed the importance of the A-l06
process and urged participation. Mr. Edward of EPA pointed out
that agencies should explore the possibility of an an environmental
compliance line item in the budget and noted that NASA has done
this successfully. Mr. Muihern, Federal Facilities Coordinator,
Region III, urged installation commanders and GOCO contractors to
go to Congress about funding requirements.
PANEL D: BRINGING ACTIONS AT GOCO FACILITIES
Analysis of procedural issues and government contractor defenses
both generally and as they have been used in EPA civil, judicial,
and administrative enforcement actions.
Panel Moderator: P. HENRY HABICHT. of Counsel. Perkins. Coie and
Vice-President. Ruckelshaus Associates
Mr. Itabicht, noted that government contractor arrangements pose
pivotal questions of statutory and Constitutional dimension. Me
spoke of a perception problem and the need to use the institutions
of EPA and Federal agencies to provide clearer direction. EPA
needs to clarify its approach towards GOCO contractors, and
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contractors, in turn, need to know their obligations and
responsibilities. Both parties should be aware of the positions
and defenses that might be argued. Congress must be convinced of
the need for long-term planning and more funding in order to
achieve environmental compliance.
HRIST0PB!R GRT3NDLER. Director. Federal Facilities Hazardous Waste
Compliance Office. EPA. Washington. D.C .
Mr. Grundler outlined EPA’S perspective on Federal facilities
compliance with hazardous waste laws. He stressed that EPA Office
of Solid Waste and ergency Response (OSWER) is not singling out
government contractors. OSWER has recently identified Federal
facilities of concern and has implemented monitoring programs as
well as planning and management assistance. EPA has also explored
enforcement options for Federal facilities that are out of
compliance.
EPA considers GOCO contractors to be potentially liable parties
as a matter of law, and feels as a matter of policy that
contractors should not be shielded. Although EPA has not yet
published a formal policy on GOCO enforcement actions, OSWER does
not want its EPA Regions to hesitate in bringing actions against
recalcitrant facilities. In fact, Mr. Grundler cited three recent
actions OSWER has undertaken against GOCO contractors. In the
first action, OSWER looked at the degree of control; the contractor
was aware of its improper activities and had been warned. EPA has
issued a complaint and has proposed a penalty against the GOCO
contractor. In the second action, the contractor was doing an RFS
without approval by EPA or the state. EPA sent a notice to the
contractor and has invited it to negotiate the RPS. In the third
action EPA was unsuccessful in reaching a compliance agreement with
the Federal agency, so as a result OSWER is pursuing enforcement
action against the contractor.
OSWER is establishing criteria for deciding whether to take
action against a contractor:
- Who is in control?
— Who is doing the activity/inactivity in question?
— Has there been unsuccessful resolution of the
compliance problem with the Federal agency?
OSWER is considering a GOCO enforcement policy in the RCRA
compliance area: it may, as a matter of policy, go after the
contractor in the first instance. This determination, though,
would be on a case-by-case basis, and equitable considerations may
affect the decision. (e.g., if the corrective action requires major
facility modification, then obviously there are equity
considerations.)
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$r. Grundler distinguished compliance from cleanup actions.
compliance problems are more attributable to the contractor;
enforcement actions against GOCO contractors for noncompliance are
generally more appropriate than Cleanup actions against such
contractors.
Mr. Grundlar concluded by stating that he does not believe that
the imposition of GOCO contractor liability will make it difficult
for Federal agencies to find contractors to do the work. He also
distinguished compliance liability from liability of contractors
for nuclear accidents.
PEGGY STRAND. Chief.. Environmental Defense Section. Department of
Justice. Washinaton. D.C .
Ms. Strand identified two emerging themes of the Colloquium:
process (i.e., determinations about how accountability should be
handled, who should pay, and where the funds should come from) and
legal authorities. Ms. Strand focused on the second theme and
pointed to the clarity of the environmental laws: the laws are
clearly applicable to both private and Federal facilities. With
that in mind, she contended that the disagreement about GOCO
enforcement authority is misguided.
Ms. Strand made reference to a recent Supreme Court decision,
Boyle v. United Technoloaies (1988), which upheld government
contractor immunity from a state tort claim. She distinguished
that decision from any environmental enforcement action, and
stressed that Boyle would not apply, since Congress has spoken
loudly and clearly about having Federal facilities comply with
federal environmental statutes.
Ms. Strand emphasized the importance of not equivocating about
government contractor enforcement. Precedents set by recent
Supreme Court cases do not exculpate or immunize government
contractors from environmental liability.
Ms. Strand concluded by emphasizing that the more difficult and
challenging goal is to develop a to make statutory
compliance work at both Federal facilities and GOCO facilities.
ROBERT LEE. Mott and Associates. Washinaton. D.C .
Mr. Lee examined what defenses a government contractor would
use in the event an enforcement action were brought against it.
Re first focused on the decision and contended that, although
the Supreme Court holding is narrow, it has broader persuasive
authority. Re agreed with Ms. Strand of DOE that the narrow
holding probably has little effect on environmental enforcement,
but felt the Supreme Court decision broadened the government
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contractor defense. In Mr. Lee’s opinion, gy extends the
defense to include cases where the plaintiffs are not military
persons, and applies even where the government did not itself
prepare the specifications but merely approved them. Furthermore,
the rationale of Boyle depends, at least in part, on the fact that
a “uniquely federal interest” is involved, thus preempting state
law.
The Federal Tort Claims Act (on which the decision in was
based) allows the federal government to escape liability when its
officers perform a ‘discretionary function.” However, when an
environmental statute —— which specifies mandatory,
nondiscretionary functions is violated, the discretionary
function rationale in is not applicable.
On the other hand, Mr. Lee contended, the government contractor
defense upheld in Boyle would be significant in toxic tort actions.
In the ongoing litigation at the DOE Feed Production Materials
Production, DOE has raised government contractor defenses. DOE
insists that its contractors performed the work under DOE direction
and therefore should be.immune.
Another defense is the “real party in interest” issue. The
contractor should demonstrate that the Federal agency and its
contractor are so closely connected that the Government is the real
party in interest and so the enforcement action should be brought
against the Government, not the contractor.
Mr. Lee concluded with the prediction that Congress, aware of
the potential impact of Boyle , will change the laws to clarify
government contractor liability.
MAJOR DAVID HOARD. Office of the Staff Judae Advocate. Headctuarters
Air Force Loaistjcs Command. Wright—patterson AFB. Ohio
Major Hoard narrowed his presentation to examining, in an EPA
v. GOCO action, who is really being sued. He pointed out that if
the contractor and the government are considered the same entity,
then the action is simply an in-house argument between EPA and
another Federal agency, and, as such, it is not a “case or
controversy” and thus not subject to a judicial determination.
Courts look behind the labels to determine who are the “real
parties in interest” in a lawsuit. The “real party in interest”
issue arises under the Federal Rules of Civil Procedure, Rule 17,
which applies to plaintiffs, but courts have permitted the
application of Rule 17 to defendants as well. The Government
contractor could argue, in its defense, that it is not the real
party in interest and that the Federal agency is the real party in
interest. Major Hoard commented that in the GOCO scenario the
contractor may have difficulty in proving that the government, the
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owner of the facility, has more interest in the fac lity than the
contractor operator. Since some environmental laws create
liability for owners and operators and other laws apply to
“persons” or ‘facilities,” the contractor, as operator at the site,
may have to bear some liability.
In addition to an examination of the contractual relationship
courts are likely to inquire into the actual relationship between
the Federal agency and its contractor. The following factors may
be important: master—servant or principal—agent relations, the
nature of the various contractual arrangements, the degree of
oversight, and the possibility of independent contractor status.
Major Hoard concluded that the real issue is not the legal
argument, but rather the policy concern about placing such an
enormous financial burden on the public, since ultimately the
taxpayers will pay the costs.
HERBERT FENSTER. McKenna. Conner and Cuneo. Washinqton. D.C .
Mr. Fenster commented that Congress has vastly underfunded
Federal facilities, and he regretted that neither the Executive nor
the Legislative branch of the U.S. Government plan to make more
money available.
There are twenty tort cases similar to the Boyle case currently
pending in federal courts. Six decisions have been rendered since
Boyle and all but one have been favorable to the contractors.
Mr. Fenster contended that in a COCO enforcement action the
contractors should make a defense. was a 1940
Supreme Court decision cited in the decision.)
Mr. Fenster felt DO .T and EPA have a profound lack of
appreciation and understanding of government contractors.
In Mr. Fenster’s opinion, a GOCO contractor is liable only if
it has breached a contract (generally a cost type contract) with
the Federal agency by improperly performing some function that was
funded by the government.
Mr. Fenster commented on a contractor’s dilemma (as in the Air
Force Plant *4/General Dynamics case) when, faced with a
noncompliance problem, the Federal agency has net approved actions
to correct the problem. It is illegal for a GOCO contractor to pay
for an unapproved action, and voluntary activity would violate 31
U.S.C. 1342.
Mr. Fenster disagreed with EPA’s assumption that there will
continue .to be enough willing contractors even when they face such
enforcement actions. He said that Federal facilities are not that
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valuable to any government contractor operator.
QUESTIONS AND COMMENTS FOR PANEL D
In response to a question about who is the operator at DOE
facilities, Mr. Fenster said DOE contractors are considered
servants and never rise to the level of operator. In simple lease
relationships it is possible that a contractor is an operator, but
that requires money to reinediate the site. Mr. Habicht said that
under CRA both the government and the contractor are
considered operators. Mr. Fenster said he instructs his contractor
clients not to sign permits.
In response to a comment that under 3QY 1i the contractor seems
to have a broader defense than the government, Mr. ‘Fenster agreed
and pointed out that a previous Supreme Court case ( Shaw v.
Gruit nan ) granted the contractor immunity even where U.S. was not
immune. Ms. Strand, however, pointed out that 1i i , like Boyle ,
was a tort case. Ms. Strand reemphasized the important differences
between tort cases and environmental compliance cases.
A contractor in the audience suggested three possible
consequences should contractors be no longer fully indemnified:
— the Federal agencies will operate the facilities themselves
(GOGOs—-Government owned and operated);
GOCO contractors will charge more to the Federal agencies
in light of potential liability;
— or GOCO contractors will set up low capital investments so
they can dissolve easily in the event of a problem.
Mr. Habicht closed with the comment that public perception
about environmental protection is critical. He reminded us that
the courts will react to placate the public. Mr. Habicht also
suggested that it would be useful to distinguish types of
enforcement actions; cleanups are different matters from ongoing
environmental compliance with permits and prevention of sporadic
incidents of violations.
PANEL E: PR1ICTICAL PJID POLICY CONSIDERATIONS
Puroose :
Evaluation of external influences, selected institutional and other
factors that affect the choice of enforcement responses, including
budgeting concerns, permitting requirements, and debarment
provisions.
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Panel Moderator: CHERYL WASSERMAN. EPA. Actina Director. Office
of Leaal Enforcement Policy. Office of Enforcement and Compliance
Monitoring Washington. D.C .
Ms. Wasserman opened the panel discussion by questioning how to
make all parties involved in a government contract feel
accountable.
LEE HERWIG. EPA. Chief. Federal Facilities CoaDliance Program.
Office of Federal Activities Washinaton. D.C .
Mr. Hervig acknowledged the problems of Congressional
underfunding of greatly needed environmental projects and offered
a solution —- the 0MB A-106 system, which permits the Federal
agencies to itemize all the projects that need funding. A—106 is
a five-year pollution abatement plan submitted to EPA annually by
the Federal agencies. EPA analyzes the plans and classifies each
individual project:
— Class I projects are needed to correct noncompliance
problems. Compliance agreements / consent orders that are signed
by EPA and the Federal agency are given highest priority.
Situations where notices of violation have been issued or when
there is noncompliance past a deadline are also considered Class
I.
— Class II projects involve situations where the compliance
deadline is in the near future.
— Class III are the remaining projects, like obsolescence,
that need funding.
Mr. Herwig and the EPA Office of Federal Activities urge
Federal facilities and contractors at GOCO facilities to submit all
needed projects annually. The A-106 system is unique in
government, in that it provides an opportunity to the chain of
command to identify needed capital projects and one—time monitoring
programs through a system which is related to, but not directly a
part of the Federal budget process.
RIDGEWAY HALL. Title Crowell and Xorina. Washington. D.C .
Mr. Hall recognized the potential liabilities that a government
contractor faces: in addition to the more familiar environmental
liability, there is toxic tort liability and the joint, several,
retroactive and perpetual liabilities under CERCLAI. What is more,
there are policy and practical constraints on the Federal
Government.
The Anti—Deficiency Act bars a Government agency from spending
more than is authorized and appropriated in its budget, which means
an agency can only indemnify its contractor for clear and limited
amounts. Consequently, Mr. Hall advocated clear delineation of
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responsibility for ongoing compliance, as veil as assignment or
apportionment.
If Federal government sovereign immunity has been waived, both
the Federal agency and the contractor may be subject to the
statute, although there is still room to argue that civil penalties
are unauthorized. In addition, the government can be sued under
the Federal Tort Claims Act. Note, however, that there is an
exception for “discretionary functions.”
Contractors should encourage interagency relationships between
EPA and other Federal agencies including cooperative funding of
studies and environmental auditing. Mr. Hall also encouraged good
relations with Congress and awareness of local political
constraints and neighborhood acceptability of remedies.
Ideally a reasonable inter-agency agreement could be reached.
But problems may arise if there are strained Federal-State
relations or if the parties cannot agree on the scope of remedy or
response strategy.
Mr. Hall spoke of the effectiveness of area apportionment
agreements, especially at Superfund sites, and cited the success
of the agreement at Twin Cities Army Ammunition Plant.
ALEX VARELA. EPA. Contractor Listina Official 1 Office of
Enforcement and Compliance Monitorina. Washinaton. D.C .
(see handout in materials)
Mr. Varela began by pointing out the complexities of the
compliance determination process, especially in remedy selection.
He emphasized the enormous policy and practical problems in
carrying out compliance agreements.
Mr. Varela enumerated a number of practical and policy
considerations which may arise at various points during contractual
relationships with a Federal agency. 1) There are inspection and
information access problems that must be anticipated. 2) The
capital structure and O&M components of a contract may be difficult
to reconcile. 3) Parties involved need to be aware of mutually
exclusive defenses that may be made by Federal agencies and EPA.
4) One cannot forget Congressional pressures which affect
decisions. 5) There are problems of credibility for DOE, DOD, DOS,
and EPA.
Mr. Varela also discussed contractor debarment listings, which
currently exist under the Clean Air Act and Clean Water Act, and
have been proposed for R RA. In 1985, new contractor listing
regulations were issued. Presently, recommendations for listing
can come from the EPA Administrator, a State Governor, or any
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citizen. These listings have been used to enforce contractor
compliance. Although the listing applies only to a specific
facility, not the entire company, EPA interprets a facility to
encompass whatever contracting part of the facility was in
violation.
ROBERT LINGO.. U.S. Army Material Command,. Washin ton.. D.C .
Mr. Lingo began with the premise that EPA intends to bring
enforcement actions against GOCOs and then questioned when the
action would be appropriate. Mr. Lingo stated that contractors
want to know what the rules are.
Before the Army decides whether to get involved when EPA brings
an enforcement action against a GOCO contractor it should evaluate
the eff’ t of the remedy (e.g., the shutdown of a proving ground).
It should examine the contractor’s obligations and determine who
viii be responsible for the funding.
Mr. Lingo focused on ongoing RCRA compliance matters. The Army
has certain expectations of contractor activity under RcRA. After
all, the contractor is funded for such work. But the Army also
realizes the limitations of the contractor’s own money and
appreciates the difficulties in paying for capital investments.
In the event a penalty is levied against the contractor, the
Federal Acquisition Regulations (FAR) do not provide for
reimbursei ent except when it has been provided for or approved by
the contracting officer. The Army has a provision that if a
contractor incurs a penalty because of faulty government equipment,
the goverr r ent will reimburse. But if the contractor had failed
to do what it was supposed to do, there will be no reimbursement.
Mr. Lingo stated that it would be inappropriate to seek hard
and fast conclusions about enforcement. He urged EPA officials to
come to the Federal agencies first with any environmental problems
they have identified at GOCO facilities.
OUESTIONS AND COM!’ [ ENTS FOR PANEL E
Ms. Wasserman named key issues: degree of control, nature of
the violation, budget process, availability of effective
enforcement tools, accountability, and flexibility.
Perhaps fining the Government is appropriate, considering the
contractor’s narrow profit margin. Ms. Wasserman felt that
contra tors do have an economic benefit motive and enforcement
actiofls can be effective deterrents. Municipalities use similar
arguments, but EPA determined that without fines and penalties a
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municipality has little incentive to comply.
Mr. Varela explained how an EPA level of action (e.g., notice
of violation or warning letter) is chosen. The remedy can include
penalties or injunctive relief, or both.
In response to a question about areas in vhich contractors do
not comply, Mr. Lingo said the biggest problems are operational
(e.g , inspection, training) and quasi—operational violations
(e.g., ground water monitoring). Mr. Rerwig referred to a GAO
study of wastewater treatment plants where the greatest problem is
operations and maintenance work.
It was suggested that award fee contracts would make
contractors most concerned about compliance, and penalties would
be critical. A contractor objected to this, pointing out that the
contractor would be subject to double dipping: if the contractor
is out of compliance, a portion of the fee is not granted, so if
EPA were to fine as well, the contractor would lose twice. (Mr.
McNett of Rockwell agreed. Rockwell lost $100,000 in award fee due
to a TSCA violation at the DOE Rocky Flats plant and now EPA is
fining the contractor $80,000.)
A DOE representative spoke of the significance of professional
reputation and pride, which is too often underestimated. A
contractor does not want a poor reputation; noncompliance affects
future contracts as well as the award fee.
PANEL F: PERSPECTIVES ON 0000 !NPORCEMENT ISSUES
Views on the roles of States and citizens in taking enforcement
actions against government contractors at Federal facilities.
Panel Moderator: EUGENE BERMAN.. Executive Vice President.. Clean
Sites. Inc.. Fairfax. Va .
Mr. Berman pointed out that environmental suits are not limited
to actions taken by EPA. CERCLA and other statutes have citizen
and state suit provisions. Under cERCL , for instance, there are
a number of enforcement options: 1)EPA action, 2)state and/or
citizen participation in EPA—initiated action, 3)independent state
action, ox 4)independent citizen action. Mr. Berman then
identified two critical questions: 1) Which enforcement option best
achieves compliance? and 2) What is to be learned from CERCLA’s
enforcement history in a general sense? There have been CERCLA
actions against some, but not all, PRPs which has led to expensive
third party actions and has increased legal and other transactional
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costs, money which could have been better spent for cleanup or
compliance.
LEE PADDOCK Office of the Attorney General. Minnesota
Mr. Paddock was formerly on the staff of the National
Association of Attorneys General (NAAG). He said the issue of
federal facility enforcement is a first priority agenda item for
NAAG, due to the high visibility of Federal sites. A number of
states have enforcement authority stronger than EPA’ s. This is
especially true of a state’s ability to file lawsuits and to issue
enforceable orders against Federal facilities under various
environmental statutes.
At a Superfund site, states go after all PRPs. In addition to
the National Priority List, states often have their own lists of
priority sites. Funding is critical, and states are aware of the
anticipated limitations on federal facilities funds. Mr. Paddock
emphasized the potential benefits of settlement agreements when
technical people from both sides can work together.
In a situation with a noncomplying GOCO facility, Minnesota
prefers to deal primarily with the Federal agency (e.g., settlement
negotiations with the Army) but there are some exceptions. Where
there has not been a consent decree, but only an administrative
order issued, a state has concerns about sovereign immunity and so
it will want the GOCO contractor to sign as well. And where an
injunction has been ordered, a state may want to involve the
contractor as well.
A majority of states have felony statutes for environmental
crimes. They are directed at whomever is responsible for the
intentional or egregious activity. Enforcement actions are
directed at responsible individuals (e.g., a commanding officer or
a contractor operator).
SHIRA F lAX. Sierra Club. Washington. D.C .
Ms. Flax emphasized the impact of external factors, namely the
power of the press, to influence environmental compliance.
Ms. Flax also decried the limited human resources at the EPA
regional offices —— too few people to review permit applications
and to keep open lines with Federal agencies regarding
environmental compliance at the Federal facilities.
Environmental groups advocate the restoration of full
enforcement authority to the EPA and States to deal with violations
at Federal facilities.
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TOM BIcK. Trial Attorney,. Environmental Section. DeDartment of
ustice . Washington. D.C .
Mr. Bick spoke of the partnership between the Federal
government, state and local governments, and citizens. He cited
the strained relations in the U.S. v. Shell case, which started as
litigation by the Army against Shell, but evolved into a major
clash between the Federal government and the State of Colorado over
enforcement authority regarding cleanup action.
EPA and the states must develop good working relationships and
clearly define their goals. He recognized that EPA regions and
states have limited resources. States and localities must learn
to trust EPA. EPA similarly needs to convince the states and local
governments that it is interested in making the process work.
States do have the power and authority to bring enforcement
actions against Federal facilities, but before choosing this route
they must be sure they have adequate expertise and resources.
Mr. Bick repeated three of the five basic principles he had
previously discussed in the “Historical Perspectives” session.
(1) EPA cannot sue Federal agencies. This is a
Constitutionally based doctrine so Congress cannot
change it via statute.
(2) Citizens and states may be able to bring actions
where sovereign immunity has been waived, but in certain cases
civil penalties cannot be sought form the Federal facilities. But
note: Congress does have the power to change this.
(3) As long as they are “operators,” private GOCO contractors
are subject to the environmental statutes, irrespective of a
S indemnification provisions.
CERCL sections 120 and 221 are critical provisions to
understanding states’ roles at cleanup sites. Mr. Bick said it is
clear that Congress did not have GOCOs in mind when it wrote these
provisions. Congress did not envision situations where a Federal
agency owner and a GOCO operator would both be liable under CERCIA.
In particular section 120(a)(4)—— the “mini—state CERCIA
provision” applies to those Federal facilities not on the NPL.
Mr. Bick identified five trends to watch for better
understanding the roles of the state and EPA:
1) The New National Contingency Plan, which is the primary
vehicle for implementing regulations in CERCIA that spell out the
roles of states and also includes a section on Federal facilities;
2) the “alter—ego” or “real party in interest” argument, that
because of the close interrelationship, a suit against a contractor
is really a suit against the Federal agency and therefore EPA
cannot sue the contractor since there is no case or controversy
(This argument has been made by General Dynamics);
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3) State RCRA authority claims. Courts are undecided on the
issue of comprehensive R RA authority at a CERCL& cleanup site.
(i.e., who’s to determine cleanup?) Note: states are not obliged
to pay anything in GOCO cleanups (compared to the 10% share a state
must pay for the cleanup of a private facility)
4) Government contractor defense, which could be especially
important regarding state actions at GOCO’s (the burden could shift
more to the federal government):
5) NPL listings of Federal facilities, including GOCO’s.
JEFFREY HOWARD. Killer and Chevalier. Washington. D.C .
Mr. Howard discussed options for a government contractor in the
event it is involved in a cost recovery suit brought under CERCLA.
If the party bringing the enforcement action is not the United
States, then some defenses are not applicable.
The contractor must look to ways to attach liability on Federal
agency. Mr. Howard suggested some possible legal hooks:
First, if sole ownership is involved, that offers a minimal
hook of 10% or less of the liability.
Second, if the contracting agency has some status as operator,
then the contractor should focus on the question of control (i.e.,
the ability of control to cause or prevent a problem). This is
eBpecially critical when facing a multimillion dollar cleanup
recovery.
Third, if the contracting agency has status as generator (i.e.,
in CERCLA terms, “responsible for arranging for disposal by
contract or otherwise”), then the agency could also be liable for
disposal.
One of the most interesting cases is U.S. v. Aceto Agricultural
Chemical Corn . In the pesticide industry, it is common for
manufacturers to sell technical grade products to formulators which
finish the products. In this case, the formulator was involved in
an environmental mess but went bankrupt. The U.S. filed an action
against the manufacturers that had sold the products to the
formulator. The court found that the United States did indeed have
a claim under CERCIA to recover costs from the manufacturer,
relying in part on the Restatement of Torts on vicarious liability.
The court held that the private manufacturer in its position as the
contracting agency was absolutely liable under common law for the
environmental problems caused by the independent contractor (the
formulator) even though it had not been on site and had exercised
no day to day supervision.
Mr. Howard concluded that if a contractor is caught in a
cost-recovery action, the contractor can use some of the law
developed by the government (e.g., to avoid liability.
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PM EL G: IN8TITUTIO) L RRX!RS MD PROPOSED IM!flS
Examination of Congressional views and legislative initiatives as
well as diBcuesion of modifications to the current Federal
Acquisition Regulations (FAR) and Federal agency FAR supplements.
Panel Moderator: KEN MURPHY. Executive Director. Environmental an g
Enerav Study Institute, Washinaton. D.C .
Mr. Murphy introduced the panelists and asked them to outline
what is in store on the legislative and regulatory fronts. He
pointed out that some of the changes may be critical.
DAVID PRITZXER. Administrative Conference of the United States,.
Washinctton. D.C .
(see ACUS report and recommendation ‘Federal Government
Indemnification of Government Contractors” in the materials)
The Administrative Conference of the United Sates (ACUS) is
limited to examining procedural issues. It recently studied Federal
agencies’ experiences and recommended how agencies ought to behave
when asked to grant an indemnification clause to a government
contractor. Since there is some confusion about the extent of the
present indemnification authority ACUS suggested each Federal
agency issue a public statement of understanding.
When deciding whether to grant indemnification, ACUS recommends
the following: identification of public benefits, evaluation of the
nature and magnitude of risks involved, assessment of aggregate
liability that may be incurred, assessment of insurance coverage,
understanding of where the money will come from, and evaluation of
the various incentives for adopting or not adopting an
indemnification clause.
Some contracting officers within a Federal agency are allowed
to indemnify. ACUS recommends these officers seek advice from EPA
and NRC.
OMB’s Office of Federal Procurement Policy wi-li keep records
of any indemnification.
ROBERT COOPER. DeDutv Director. Office of Federal Procurement
Policy. Office of Management and Budget. Washington. D.C .
Mr. Cooper discussed development of the Regulation (FAR). His
office, the Office of Federal Procurement Policy Federal
Acquisition (OFPP), reviews procurement regulations. Mr. Cooper
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commented that it is worthwhile for interested parties to lobby not
only Congress but the agencies as well regarding proposed
regulations or FAR revisions.
Mr. Cooper identified three regulatory players. First, the 0MB
Off ice of Information and Regulatory Affairs. Its primary charter
is Executive Order 12291, which directs attention to proposed
legislation that is likely to have a major economic impact. In
the past, contract and procurement regulations were not considered
subject to such review, but since 1984 they have also been
reviewed. The second actor is OMB’s new FAR Council which has both
civilian and defense agency representation. Initially procurement
regulations were exempt from public comment, but pursuant to PL
98-577 procurement regulations are now subject to public review and
comment. The FAR council develops cases. Two cases are
noteworthy. Case 84-45 involves an attempt to incorporate an 0MB
policy letter regarding federally funded R&D centers. Mr. Cooper
noted that many of these centers are GOCO facilities. Another case
involves a draft Defense Acquisition Regulation (DAR) on cost
principles. Mr. Cooper urged interested parties to submit
comments. The third actor is OFPP, which reviews procurement
regulations. That office has the authority to rescind or issue
regulations and test innovative procedures. OFPP welcomes comments
on regulatory initiatives. Finally, 0MB is planning to resurrect
the old Cost Accounting Standards Board in OFPP.
LTC LAURENT HOURCLEI U.S. Air Force 1 Chief. Environmental Law
Office. Boiling APB. Washington. D.C .
LTC Hourcie contended the focus of any EPA GOCO policy should
be on compliance, not enforcement. Enforcement, he felt, is not
always the best tool • He questioned whether the current structure
best achieves compliance. He commented that the powerful
relationship between an agency and its contractor should be
emphasized.
The Defense Acquisition Regulation (FAR Supplement) is likely
to be amended to include more than the Clean Air Act and Clean
Water Act, which are currently the only two Federal environmental
laws explicitly cited in the present FAR and DAR.
LTC Hourcie stated his hope that the contractor community will
offer alternatives. After all, the contractors are in the best
position to know the processes and to identify both problems and
solutions. The Air Force is currently exploring ways to create
economic incentives for pollution abatement and disincentives for
being out of compliance.
Ninety percent of the ongoing compliance problems at Federal
facilities are procedural in nature. If a contractor fails to
respond to warnings, it must pay the penalty. LTC Hourcie warned
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that if a contractor continued to be recalcitrant, the defense
agencies could easily deluge the contractor with agency
environmental auditors and reduce the work relationship to
micromanagement.
KEN ROSENBAUM. of Counsel. Office of Representative Wyderi ID—OR
)lr. Rosenbaum acknowledged the critical problem of underfunding
and advised all interested parties to contact the respective
Appropriations Committees.
Regarding contractor accountability, he commented that award
fee contracts may not be effective enough to deter GO O contractors
since the percentages of dollars held back by Federal agencies is
generally too small. Congress intends EPA to enforce the law
against violators and not to rely on other Federal agencies to take
enforcement actions against contractors.
Mr. Rosenbaum highlighted key points in the bill introduced by
Congressman Wyden in 1988 addressing Federal agency contractor
issues. The proposed amendment to RCRA would require that a
contractor-operator sign all R RA permits. It would extend
debarment to RCRA contractors and also to its affiliates doing
business with the a debarred contractor. Finally the bill would
clarify that fines and penalties imposed would not be reimbursable,
unless the contractor had notified the Federal agency and the
contractor could not have fixed the problem itself.
Mr. Rosenbaum said some contractors felt the bill was
reasonable, but others felt it unfair that they should be held
accountable for the actions of lower level employees.
The bill introduced by Rep. Wyden did not make it out of
committee this year. There was some difficulty with the last point
in the bill and a study by the General Accounting Office (GAO) was
requested. Mr. Rosenbaum said to watch for Federal facilities and
GOCO enforcement issues to be addressed again next year when RCRA
is up for reauthorization.
OUESTIONS AND COMMENTS FOR PANEL C
In response to question about contractor debarment, Mr. Varele
said EPA goes after contractors responsible for recurrent or
repeatedly uncorrected violations.
Mr. Rosenbaum clarified the definition of Uaffiliatel as a
corporation with common control of various facilities.
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WraD-UD i.saion: IIIiIdina Conesnaus on an !PA 0000 Btrat.ay
This closing session i:ncluded all panel moderators. Its
purpose vaB to identify and define the key issues which EPA needs
to address in developing its GOcO Enforceaent Strategy.
The following issues were dentified as the major questions
which EPA needs to be able to answer if it is to develop a timely
effective and useful GOCO strategy. These questions were
identified separately for each panel as outlined in the attached
summary.
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Panel A
DEFINING THE GOCO
UNIVERSE
Definition(s) of GOCO facilities and examination of the various
roles of government contractors In activities and operations at
Federal facilities.
1. Should the definition of GOCO be modified or
further refined?
2. How should geographic scope and subdivided
facilities be considered in deciding which
facilities are GOCO’s?
3. Are there meaningful subsets to the general
term GOCO (e.g. M&O facilities)?
4. Should the GOCO strategy Include a name list of
GOCOs? Who should prepare and how?
5. Should the strategy address other types of
Federal contractor relationships?
6. Should EPA consider developing “criteria” to
define GOCO’s?
7. Are environmental statute definitions of
“operator” equivalent to term “contractor
operator” at GOCO’s?
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Panel B
LEGAL RELATIONSHIP BETWEEN
GOCOs FEDERAL AGENCIES
Exploration of the variety of contractual arrangements Including
the scope of employment and the Influence of Indemnification
provisions and the Federal Acquisition Regulations.
Should the extent of Government
indemnification affect enforcement:
a For punitive measures like fines and
penalties?
11 For remedial measures?
2. Should EPA express a preference for the extent
of Agency indemnification?
3. To what extent should EPA get involved In the
FAR development process?
4. Whom should EPA pursue for cleanup of offsite
contamination at third-party sites?
5. When should EPA enforce against the corporate
parent of the GOCO operator?
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Panel C
FEDERAL AGENCY MANAGEMENT
OF GOCO CONTRACTORS
Insight Into the day-to-day operations at GOCO facilities
Including Federal agency supervision, contractor’s obligations to
notify, and the allocation of costs and liabilities.
1. When issuing an enforcement action at GOCO
facilities, who in the Government
chain-of-command should get the NOV?
2. Is an operational vs. capital construction
distinction useful?
3. What other tools can be brought to bear besides
fines, to give contractors incentives to comply?
4. Should its strategy call for EPA to first consult
with the involved Federal Agency before taking
enforcement action vs. contractor?
5. Can there be special GOCO notice letters to both
parties following identification of violations?
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Panel D
BRINGING ACTIONS AT
GOCO FACILITIES
Analysis of procedural issues and government contractor
defenses both generally and as they have been used In EPA civil,
judicial, and administrative enforcement actions.
1. Should EPA enforcement distinguish between
cleanup liability for past compliance activity vs.
current compliance responsibilities?
2. Does it make a difference who holds the permit
in EPA’s enforcement response?
3. Should EPA’s GOCO policy express a preference
in who signs permits?
4. Should EPA policy call for a legal determination of
the “real party in interest”?
5. Should we separate the types of enforcement
actions EPA would take vs. Federal facifitles and vs.
GOCO contractors?
6. Does the type of GOCO contract affect
enforcement choice? Can they be grouped by
Federal agency and/or contract types?
7. Should EPA establish both a transitional
enforcement policy for existing contracts
and a long-term strategy?
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Panel E
PRACTICAL AND POLICY
CONSIDERATIONS
Evaluation of external Influences, selected Institutional and other
factors that affect the choice of enforcement responses.
including budgeting concerns, permitting, and debarment
provisions.
1. Should the GOCO strategy emphasize Increased
contractor use of the A-106 system?
2. To what extent should GOCO contractors
participate in settlement negotiations and/or
sign agreements, etc.?
3. How does the violation type and required fix (i.e.,
capital or O&M) affect enforcement response?
4. How should the EPA contractor listing program
be addressed in the GOCO strategy?
5. Should EPA consult with Federal agency first,
before taking action against GOCO contractor?
6. Can/should the existence of award fee contracts
affect EPA actions, in particular penalties? Should
EPA revise its penalty policies to reflect such
considerations?
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Panel E
PRACTICAL AND POLICY
CONSIDERATIONS (Continued )
7. How does the degree of Federal Agency
oversight affect both EPA’s definition of GOCO’s
and its enforcement responses?
8. Is It appropriate for EPA to take action vs.
contractor because It is not having success with
enforcement vs. Agency?
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Panel F
PERSPECTIVES ON GOCO
ENFORCEMENT ISSUES
Views on the roles of States and citizens In tnklrig enforcement
actions against government contractors at Federal facilities.
1. Are enforcement actions against GOCOs by
States or citizens more effective than EPA
actions and should GOCO strategy express a
preference?
2. Are there any GOCO issues unique to States’
enforcement which need to be addressed in
Strategy?
3. How can EPA involve States in its GOCO
enforcement decisions and/or actions so that we
can minimize duplication of effort?
4. Is there any special Relationship to Tort
actions?
5. Do GOCO contractors meet the definition of an
operator under RCRA?
6. Should EPA somehow involve OSHA in
development of this strategy?
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Panel G
INSTITUTIONAL BARRIERS AND
PROPOSED CHANGES
Examination of Congressional views and legislative Initiatives as
well as discussion of modifications to the current FAR and
Federal agency FAR supplements.
1. Can/should EPA recommend compliance
incentives for Federal agencies to include in
their GOCO Indemnification clauses? (or other
economic incentives?)
2. Should EPA consider initiating action through
the FAR council for changes to include the other
environmental statutes?
3. Should the contractor be excused If It
inspected! audited facility and promptly notified
the Federal agency?
4. Can EPA strategy create a special accountability
system in its oversight of GOCO contractors?
5. Should a GOCO enforcement advisozy board of
some kind be established?
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