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OECA's Cookbook on
Imminent and Substantial Endangerment
Table of Contents
EPA Memorandum Announcing
the Formation of the OECA
Workgroup on Imminent and
Substantial Endangerment
** Legal Analysis on Injunctive and
Preventative Relief Available under
the Statutory Imminent Hazard
Provisions
** Survey of Imminent and
Substantial Endangerment
Authorities
Fact Patterns where Courts found
imminent and substantial
endangerments
EPA Guidance on Use of These Authorities
RCRA § 7003
CWA $ 504
SDWA 3 1431
CERCLA 3 106(a)-
CAA § 303
Mi?sw6 t
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Samples of Administrative Orders Issued Under These Authoriti
RCRA §.7003
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CERCLA §_ 106(a)
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SDWA §J4_31
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" CAA §_ 303
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Model Orders For Use of These Authorities
CERCLA § 106(a)
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OECA COOKBOOK ON
IMMINENT AND SUBSTANTIAL
ENDANGERMENT
Table of Contents
Tab
EPA Memorandum Announcing the Formation of the
OECA Workgroup on imminent and Substantial Endangerment 1
Legal Analysis on Injunctive and Preventative Relief
Available under the Statutory Imminent Hazard Provisions.
Survey of Imminent and Substantial Endangerment Authorities
Fact Patterns where Courts found imminent and substantial
endangerments
EPA Guidance on Use of These Authorities
RCRA § 7003
CWA § 504
SDWA § 1431
CERCLA § 106(a) — .8
CAA § 303.... 9
CAA§il2(r)„ .... 10
Samples of Administrative Orders Issued Under These Authorities
RCRA §7003 11
CERCLA § I0tf(&).. 12
SDWA § 1431 .. Jl3
CAA § 303 „14
Model Orders For Use of These Authorities
CERCLA § 106(a). 15
Currerit EPA Delegations for Use of These Authorities. . 16
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^t0 suf<
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AUG 26 1997
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
MEMORANDUM
SUBJECT: germent Authorities Team
We have asked the Office of Regulatory Enforcement's (ORE) RCRA Enforcement
Division to coordinate implementation of the recommendations from this year's National
Enforcement Meeting regarding the use of the Agency's authority to respond to imminent and
substantial endangerment conditions. As you know, these recommendations came from
suggestions made by both Regional and Headquarters management personnel that were
discussed at two breakout sessions. In brief, we are establishing a joint ORE-Office of Site
Remediation Enforcement (OSRE) team to quickly respond to requests for assistance from
regions in specific cases and to develop certain tools to enhance the use of this authority. We
are also asking each region to designate one person from the enforcement division or
regulatory enforcement office who will be our contact for determining the appropriate
enforcement response in the event of an industrial accident.
The discussions at the National Meeting reinforced our belief that we need to promote
and encourage the effective use of the various statutory imminent and substantial endangerment
authorities (e.g., RCRA § 7003, CAA §§ 112(r) and 303, and CERCLA § 106). For
example, in certain circumstances, if a water-related release by a source is presenting an
imminent and substantial endangerment, EPA may choose to issue a RCRA
FROM:
Eric V. Schaeffer, Director
Office of Regulatory Enforcement
Barry N. Breen /
Office of Site Remediation Enforcement
TO:
Regional Counsel, Regions I-X
Regional Enforcement Division Directors, Regions I, II, IV, VI, VIII
Regional Enforcement Coordinators, Regions I-X
Recycled/Recyclable . Printed with Vegetable Oil Based Inks on 100% Recycled Paper (40% Postconsumer)
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-2-
§7003 order because §504 of the Clean Water Act does not provide for administrative orders.
If there were a threatened release to the air of a hazardous substance from a facility, the
Agency might choose to issue an order pursuant to §106 of the Comprehensive Environmental
Responsibility Compensation and Liability Act instead of §303 of the Clean Air Act.
CERCLA § 106 may be the better choice for threatened releases because it is likely easier to
show that this situation "may present" an imminent and substantial endangerment (CERCLA's
threshold) than to show that it "is presenting" an imminent and substantial endangerment
(Clean Air Act's threshold). In addition, the limited duration of Clean Air Act orders might
also suggest a preference for the use of CERCLA §106.
To facilitate this effort, we have established a cross-office team to assist regions in
making most effective use of these authorities. This team will work with Marcia Mulkey and
Walter Mugdan to ensure additional regional input as this effort progresses. The team will
also coordinate with the media program offices, as appropriate. Ann Bailey will be the Team
Manager. The attached list identifies those team members with expertise in specific media-
based endangerment authorities. We encourage you to call any team member if you need
assistance for a specific case. Your request for help in such matters will be given the
highest priority.
The membership of this team has been drawn from all of the OR£ Divisions and from
OSRE to ensure that for each authority we have at least one person on the team who knows it
well. Our goal, however, is that each team member will soon be knowledgeable in all of the
imminent and substantial endangerment authorities. To achieve that goal, we have scheduled
briefing sessions, so that staff can share their expertise in the use of these authorities. Once
these sessions are complete, Regional roundtables will be scheduled, patterned after the
National Meeting discussions, to further develop expertise.
In addition, the team is nearing completion on a users' "cookbook" to serve as a tool
for Agency staff. It will include a summary of the imminent and substantial endangerment
authorities, as well, as relevant case law; tables comparing and contrasting the elements of each
authority; copies of the guidance issued for each authority; an analysis of case-specific
findings, along with the relief sought; and any model orders or standard order language
currently available for each authority. For those authorities that currently do not have model
orders, we anticipate developing those models and adding them to the cookbook as we gain
more experience with using those authorities. With your help and your staffs' help, the team
will also be pulling together examples of orders that have been issued to date and making them
available electronically to all Regions.
To summarize, the team will initially undertake three tasks by the following dates
1) Broaden expertise in multiple statutes through briefing sessions and roundtable
discussions
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-3-
Headquarters briefing sessions began on August 5 and will be completed by October
31. Regional roundtables will begin early next fiscal year.
2) Develop a cookbook describing the authorities and how to use them
The cookbook will be ready for initial distribution by October 31.
3) Establish an electronic clearinghouse of example orders that have been issued
We anticipate that this effort will be ongoing, but expect to have an initial set of orders
available electronically by November 30.
To ensure the most effective use of the Agency's enforcement authorities, our offices
will be routinely reviewing information from the National Response Center provided to us by
OSWER's Chemical Emergency Preparedness and Prevention Office (CEPPO) and contacting
the affected regions to determine whether and what type of enforcement response the region is
considering for each incident. The team and the affected Region will consult with technical
personnel in CEPPO, as needed, in determining whether a situation threatens or presents an
imminent and substantial endangerment. We are asking each region, therefore, to designate
one person from the enforcement division or regulatory enforcement office who will be our
contact for this purpose. Each Region should contact Am Bailey, at (202) 564-3899,
regarding this designation.
We will be contacting Regions in which accidents that meet any one of the following
criteria occur:
1. result in one or more human fatalities;
2. result in the hospitalization of three or more workers or members of the public;
3. cause property damage (on- and/or off-site) initially estimated at $500,000 or
more in total;
4. present a serious threat to worker health or safety, public health, property, or
the environment;
5. have significant off-site consequences, such as large-scale evacuations or
protection-in-place actions, closing of major transportation routes, substantial
environmental contamination or substantial effects (e.g., injury, death) on
wildlife or domesticated animals; or
6. are an event of significant public concern.
Our routine review of National Response Center data and regular dialogue with the
Regions regarding industrial accidents will allow us to provide assistance promptly in
determining whether enforcement is appropriate and if so, the best enforcement response,
including which statutory authority to use for an imminent and. substantial endangerment order,
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if necessary. An appropriate enforcement response can encourage facilities to be more
proactive in preventing accidents.
cc: James L. Makris
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WORKGROUP FOR IMMINENT AND SUBSTANTIAL ENDANGERMENT
AUTHORITIES
Office or
Division
Name
Phone Number
Area of Expertise in Emergency
Powers
RCRA
Caroline Ahearn
564-4012
RCRA §7003
Mary Andrews
564-4011
RCRA §7003
AED
Cary Secrest
564-8661
CAA §303
Luis Troche
564-2008
CAA § 112(r)
WED
Betsy Devlin
564-4054
SDWA §1431; CWA §504
Alan Morrissey
564-4026
SDWA §1431; CWA §504
TPED
Carl Eichenwald
564-4036
TSCA §7, §5; FIFRA §13, §6(c)
Dean Ziegel
564-4038
FIFRA §13, §6(c); EPCRA
MMED
Jack Schad
564-6034
Case Development
ORE
Suzanne Childress
564-7018
Immediate Office Contact
OSRE
Cate Tiemey
564-4254
CERCLA §106; RCRA § 7003 (for
site remediation)
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INJUNCTIVE AND PREVENT A TIVE RELIEF A VAILABLE UNDER THE
ST A TUTORY IMMINENT HAZARD PROVISIONS
FOR INTERNAL USE ONL Y - DOES NOT REPRESENT
OFFICIAL AGENCY GUIDANCE
/. Introduction
The United State Environmental Protection Agency's enforcement program is often faced
with situations that call for a quick response-- a raw sewage pipeline overflows into public
waterways or the improper removal of asbestos near a school playground. Fortunately, the
Agency also has a variety of statutory authorities to address these situations. Because the Agency
historically has had a media-based organizational structure, each media enforcement program has
tended to look only to the statute that it is most familiar with (e.g., Air Enforcement Division and
the Clean Air Act) when determining whether a situation presented an imminent and substantial
endangerment, and if it did, what remedies could be sought. Most "imminent and substantial
endangerment" provisions allow the Agency to issue an order either requiring certain conduct to
abate the hazard or prohibiting certain conduct to eliminate the hazard. These orders are similar
to injunctions.
II. Background
Congress broadly drafted the imminent hazard provisions included in the environmental
statutes' to give appropriate government officials the right to seek judicial relief2, or take other
appropriate action to avert threats to the environment or public health. This standard has been
interpreted as "more lenient than the traditional requirement of threatened irreparable harm,
United States v. Price. 523 F. Supp. 1055, 1070 (D. N.J. 1981), aff'd 688 F.2d 194, 204 (3rd Cir.
'imminent hazard provisions appear at section 1431 of the Safe Drinking Water Act, 42
U.S.C. § 300i(a); section 504(a) of the Clean Water Act (CWA), 33 U.S.C. § 1364(a), section
311(c) and (e) of the CWA, 33 U.S.C. § 1321(c) and (e); section 303 of the Clean Air Act
(CAA), 42 U.S.C. § 7603(a); section 7003 of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. § 6973; section 8 of the Toxics Substances Control Act, 15 U.S.C.
§ 2606(b); and section 106 of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9606(a).
2Most of the emergency powers provisions under the environmental statutes enable the
Administrator to issue an order necessary to protect public health and the environment. However,
this authority is not included under § 504 of the CWA.
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2
1982).
III. Overview of Statutory A uthority
The following is a summary of the "imminent and substantial endangerment" provisions
under RCRA, CERCLA, CWA, SDWA and CAA. The framework of these statutes, legislative
history and case law demonstrate the strong similarities between these provisions and how they
can be used on a combined basis. Additional information concerning endangerment provisions
under other environmental statutes is contained in the attached chart.
A. RCRA § 7003
1. General Purpose
Section 7003(a) of RCRA authorizes the EPA Administrator to issue an order or initiate
an judicial action in district court whenever the Administrator receives evidence that the past or
present handling, storage, treatment, transportation, or disposal of any solid waste or hazardous
waste may present an imminent and substantial endangerment to health or the environment.
Section 7003 (a) provides:
...Upon receipt of evidence that the past or present handling, storage,
treatment, transportation or disposal of any solid waste or hazardous
waste may present an imminent and substantial endangerment to
health or the environment, the Administrator may bring suit on behalf of
the United States in the appropriate district court against any person
(including any past or present generator, past or present transporter,
or past or present owner or operator of a treatment, storage or disposal
facility) who has contributed to or is contributing to such handling,
storage, treatment, transportation or disposal to restrain such
person from such handling, storage, treatment, transportation, or
disposal, to order such person to take such other action as may be
necessary, or both...The Administrator shall provide notice to the
affected state of any such suit. The Administrator may also, after
notice to the affected State, take other action under this section
including, but not limited to, issuing such orders as may be necessary
to protect public health and the environment.
2. Materials Covered
Section 7003 applies to any solid waste as defined in RCRA § 1004(27)3, including
3 RCRA § 1004(27) defines the term "solid waste" to mean "any... other discarded
material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial,
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3
petroleum, or hazardous waste as defined in RCRA § 1004(5)4. The definition of solid waste
excludes Clean Water Act permitted discharges. The RCRA statute and regulations contain two
different sets of definitions of "solid waste" and "hazardous waste." The regulatory definitions set
forth in 40 C.F.R. Part 261 identify materials that are subject to regulation under Subtitle C of
RCRA. It is EPA's position, and at least two courts have recognized, that the broad statutory
definitions, not the regulatory definitions, govern in section 7003 actions.5
3. Scope of the Order
EPA may commence a civil action in the appropriate district court against any person,
(including any past or present generator, past or present transporter, or past or present operator
of a eatrtment, storage or disposal facility) to restrain that person from handling, storage,
treatment, transportation or disposal, or to take other necessary action. EPA may also, after
notice to the affected state, issue an administrative order necessary to protect public health and
the environment. RCRA provides that any person who fails to comply with a section 7003
administrative order, in an action brought in district court to enforce the order, can be fined not
more than $5,500 for each day the violation occurs or such failure to comply continues.
4. Legal Issues
(a) The meaning of "may present an imminent and substantial
endangerment"
Demonstrating that the management of a waste may present an "imminent and substantial
endangerment to health or the environment" generally requires careful documentation, scientific
evidence, and expert witnesses. However, courts have repeatedly recognized that the
commercial, mining, and agricultural operations, and from community activities, but does not
include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation
return flows or industrial discharges which are point sources subject to permits under
section 1342 of title 33, or source, special nuclear, or byproduct material as defined by
the Atomic Energy Act..."
4 RCRA § 1004(5) defines the term "hazardous waste" to mean "a solid waste, or
combination of solid wastes, which because of its quantity, concentration, or physical or chemical,
or infectious characteristics may (A) cause, or significantly contribute to an increase in mortality
or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial
present or potential hazard to human health or the environment when improperly treated, stored,
transported, or disposed of, or otherwise managed."
5See, United States v. Valentine. 856 F. Supp. 621, 627 (citing 40 C.F.R. § 261.1 (b)(2));
Connecticut Coastal Fisherman's Assoc. v. Remington Arms Co.. 989 F.2d 1305, 1314
(2nd Cir. 1993).
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4
endangerment standard of RCRA § 7003 is quite broad, United States v. Valentine. 856 F.Supp
621, 626 (D. Wyo. 1994). Courts interpreting the "imminent and substantial endangerment"
provision of section 7003 have found:
An "endangerment" is an actual, threatened, or potential harm to health or the
environment. Id at 626. As underscored by the words "may present" in the
endangerment standard of section 7003, neither certainty nor proof of actual harm
is required, only a risk of harm. No proof of off-site migration is required
if there is proof that the wastes, in place, may present an imminent and substantial
endangerment. Id. at 626-627.
An endangerment is "imminent" if the present conditions indicate that there
may be a future risk to health or the environment even though the harm
may not be realized for years (Id at 626; United States v.Conservation
Chemical II. 619 F. Supp. 162, 194 (W.D Mo. 1985). It is not necessary for the
endangerment to be immediate or tantamount to an emergency (Dague v. City of
Burlington. 935 F. 2d 1343, 1356; United States v.Waste Industries. 556 F.
Supp. 1301 (D. N.C. 1982), rev'd 734 F.2d 159 (4th Cir. 1984), Valentine. 856
F.Supp. At 626).
An endangerment is "substantial" if there is reasonable cause for concern
that health or the environment may be at risk (Conservation Chemical. 619 F.
Supp. at 194). It is not necessary that the risk be quantified, Id.
As clarified by the 1984 amendments to RCRA, Section 7003 is intended
to abate conditions resulting from past or present activities (H.R. Rep.
No. 1133, 98th Cong., S2dess. 119 (1984).
(b) The meaning of "anv person"
Section 7003 specifies that "any person" includes any past or present generator,
past or present transporter, or past or present owner or operator of a facility.6 The definition of
"person" does include individuals (e.g., corporate officers or employees). With respect to
corporate officer liability, EPA's position, which has been adopted by at least one court, is that it
is not necessary to "pierce the corporate veil" to find individual corporate officer liability (i.e.,
corporate officers are not immune from personal liability for corporate activities, Northeastern
6 The 1984 amendments to RCRA clarified that the term "any person" includes any past or
present generator, transporter, or owner or operator of a TSD. Furthermore, the legislative
history of those amendments notes that "[Section 7003] has always reached those persons who
have contributed in the past or are presently contributing to the endangerment, including but not
limited to generators, regardless of fault or negligence." H.R. Rep. No.l 133, 98th Cong., 2d
Sess., 130 Cong. Reg. 11137 (October 1984).
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5
Pharmaceutical & Chemical Co.. 810 F.2d 726 (8th Cir. 1986), cert, denied, 484 U.S. 848
(1987). With respect to employee liability, EPA agrees with at least one court that has held that
an employee of a corporation can be subject to individual liability under Section 7003 if he or she
had the authority to control and in fact undertook responsibility for waste disposal procedures,
Acme Printing Ink Co. v. Menard. Inc.. 870 F.Supp. 1465, 1491 (E.D.Wis.1994).
(c) The meaning of "who has contributed or is contributing to such
handling, storage, treatment, transportation, or disposal"
EPA agrees with the court in United States v. Aceto Agricultural Chemicals Corp.. 872
F.2d 1373 (8th Cir. 1989), that the plain meaning of "contributing to" is "to have a share in any
act or effect." It is not necessary for EPA to prove that the person had control over the activities
that may create an imminent and substantial endangerment, Id at 1383. Aceto
involved an action under CERCLA and RCRA regarding the clean up of hazardous substances at
a pesticide formulation facility. The court found that the defendants "arranged for" the disposal
of hazardous substances under CERCLA and "contributed to" the disposal of hazardous wastes at
the pesticide formulation facility by their ownership and control of technical grade pesticides
through the pesticide formulation process. Specifically, defendants contracted with the facility to
formulate their technical grade pesticides; they retained ownership of the pesticide throughout the
process; and inherent in the process is the generation of hazardous wastes. Defendants supplied
the specifications for their commercial grade products to the facility. The court concluded that it
may be reasonably inferred that defendants had authority to control the way in which the
pesticides were formulated, as well as any waste disposal. Id at 1383. Thus, the defendants'
relationship to the product determined liability under the RCRA imminent and substantial
endangerment authority.
Most of the subsequent case law regarding Aceto pertains to CERCLA. However, since
the court in Aceto regarded the theory of liability for "arranged for" liability under CERCLA to be
virtually the same as "contributed to" liability under RCRA, these cases carry great importance for
interpreting the scope of "contributing to" liability under RCRA § 7003. The most significant
case is South Florida Management District v. Montalvo. 84 F.3d 402 (11 th Cir. 1996) in
distinguishing the degree of control over the product necessary to establish liability.
Montalvo involved a third party complaint filed by defendants Chemspray and Juan
Montalvo ("the sprayers") against various fanning and ranching corporations ("the landowners")
that contracted with the sprayers for aerial spraying services. In their third-party complaint, the
sprayers alleged that the landowners had "arranged for" the disposal of various spraying chemicals
by :(l) owning the spraying chemicals throughout the application process; and (2) the fact that the
generation of hazardous wastes from the spraying chemicals was a necessary incident to the
application process because of the mixing, loading, and cleaning of the spraying chemicals at the
contaminated site. The landowners filed a motion to dismiss the sprayers third-party complaint
contending that the above facts were not sufficient to show that the landowners had "arranged
for" the disposal of hazardous substances. The Eleventh Circuit stated that the factors such as
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6
intent, ownership, and knowledge were all useful in determining whether a party had "arranged
for" the disposal of hazardous substances. The court did not extend CERCLA liability to the
landowners because the sprayers had not alleged that the landowners assisted in the loading, or
rinsing out of the chemical tanks or that the landowners even knew about the spraying chemical
spills. Nor had the sprayers alleged that the landowners had the duty or authority to monitor or
control the sprayers activities. Thus, the court held that the landowners had not "arranged for"
the disposal of any hazardous substances.
Case law in this area supports the following examples of "contributors" for purposes of section
7003:
- an owner that fails to abate an existing hazardous condition of
which he or she is aware;
- a person who owned land on which a facility was located during
the time that solid waste leaked from the facility;
- a person who operated equipment during the time that
solid waste leaked from that equipment;
- a person who installed equipment that later leaked;
- a person who simply provided a receptacle for existing wastes;
- a generator who sold below grade materials to a reclamation
facility to dispose of them; and
- a county that sited, licensed, and franchised a privately owned and
operated landfill for the disposal of industrial wastes.
5. Use of the § 7003 Order
Ten § 7003 orders have been issued by the Administrator, through her delegatees, in the
past year. The following are summaries of two recently issued § 7003 orders.
Chief Supply Corporation. Haskell. OK.
On May 27, 1997, the EPA issued a section 7003 order to Chief Supply Corporation, Inc.,
located in Haskell, Oklahoma, to protect public health and the environment. Chief Supply
Corporation operates a hazardous and industrial waste collection, storage, hazardous waste fuel
blending, and recycling facility. On March 26, 1997, an explosion and fire occurred at the facility
which resulted in the death of one of Respondent's employees, and injuries to two other
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7
employees. Many of the 1450 drums of hazardous waste in storage at the time of the fire were
consumed by the fire. All persons in an area extending 1 1/2 miles to the north and one mile to the
east of the facility were evacuated as a result of the fire. The cause of the explosion and fire has
not been determined.
Three days after the fire, a drum of acid was overturned while moving debris to extinguish
remaining hot spots. Chemicals from the drum mixed with waste water from the firefighting
effort and created a reaction resulting in the release of a large acid plume. The plume migrated
offsite to the northwest and crossed Highway 64. The plume dissipated in approximately ten
minutes. On April 8, 1997, a drum of solidified material was placed in a roll-off container during
the cleanup following the fire. The contents of the drum began smoking and the odor of ammonia
was immediately apparent. Facility personnel then poured water on the waste, which caused the
release of a large white plume and the reaction became more intense. The waste was then
covered with soil.
The Oklahoma Department of Environmental Quality sought to enjoin Chief from
resuming operations until certain activities were accomplished to avoid an immediate threat to
health or the environment. However, their injunction was denied by the District Court of
Wagoner County on May 15, 1997 because the Court determined that the ODEQ did not prove
that Chiefs operations posed an immediate threat to life or health sufficient to justify an
injunction.
The § 7003 order, effective upon receipt, required Chief to cease and desist operation of
the fuel blending process and not resume operation if currently inactive, including the fuel
dispersal units at the facility until authorized by EPA and ODEQ. The order also required Chief
to submit a report for review and approval to EPA and ODEQ regarding the operations at the
facility prior to the fire on March 26. The report must contain Chief s determination of the cause
of the fire and recommend steps to prevent or minimize the potential for any future fires or
explosions. The order required Chief to implement measures to prevent the combining of non-
debris hazardous waste with hazardous waste debris and properly dispose of such debris in
accordance with all applicable state and Federal regulations. Additionally, Chief must update its
facility contingency plan as a result of the fire and provide classroom instruction regarding
hazardous waste management procedures and fire prevention.
Rail Services. Inc.. Calvert City. Kentucky
On April 3, 1997, Region 4 issued a § 7003 order to Rail Services, Inc., a business that
engages in rail car cleaning, maintenance, painting and lining, plus solvent recovery and waste
treatment. Some of the rail cars transported to the facility contain hazardous wastes which are
removed in the cleaning process. Continuing releases of hazardous wastes and constituents from
solid waste management units at the facility created conditions that are hazardous to human health
and the environment. In addition, previous incidents at the facility, involving injuries to
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8
employees, indicated that management practices created a threat to human health. In February
1991, one of Respondent's employees was killed and two of Respondent's employees were
injured while performing cleaning operations of a liquid petroleum gas rail car containing solid
waste and/or hazardous waste at the facility. In May 1990, employees welding on a hydrogen
tank caused an explosion and two employees required emergency medical treatment. In October
1990, an employee using an impact wrench on a rail car holding excess pressure caused an
explosion. The employee also required emergency medical treatment.
The Section 7003 order required Respondent to immediately cease and desist the receipt,
generation, and management of all solid waste at the facility including, receiving, entering,
emptying, cleaning, painting and lining rail cars and trucks, until compliance with the terms of the
order are achieved. Respondent was also required by the order to post signs regarding imminent
danger at the site, confine smoking and open flames at the facility to designated areas, provide
classroom instruction on hazardous waste management practices and fire prevention, equip the
facility with appropriate fire equipment, update its contingency plan, identify all hazardous waste
at the facility, and bring storage containers into compliance with the regulations.
B. CERCLA
EPA has issued more emergency power administrative orders under § 106(a) of CERCLA
than any other statute. Approximately 1,300 such orders have been issued since the enactment of
CERCLA.
1. General Purpose
CERCLA § 106 is somewhat different from section 7003 of RCRA, in that it authorizes
judicial action or an administrative order when there may be an imminent and substantial
endangerment to the public health, welfare or the environment because of an actual or threatened
release of a hazardous substance. CERCLA also requires that the President prepare a revised
"national contingency plan" to reflect and carry out the responsibilities and powers created by the
Act.
CERCLA § 106(a) is a broadly written imminent hazard provision. It permits the
government to bring suit to obtain abatement action whenever the President determines there may
be an imminent and substantial endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous substance. This section also gives the
federal courts broad power to grant "such relief as the public interest and equities of the case may
require." Section 106(a) provides:
(a) In addition to any other action taken by a State or local government, when
the President determines that there may be an imminent and substantial
endangerment to the public health or welfare or the environment because of an
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actual or threatened release of a hazardous substance from a facility, he may
require the Attorney General of the United States to secure such relief as may
be necessary to abate such danger or threat, and the district court of the
United States in the district in which the threat occurs shall have jurisdiction
to grant such relief as the public interest and the equities of the case may
require. The President may also, after notice to the affected State, take other
action under this section including, but not limited to, issuing such orders as
may be necessary to protect public health and welfare and the environment.
2. Materials Covered
Hazardous substance, as defined in CERCLA § 101(14), includes hazardous waste under
RCRA § 3001. The term "hazardous substance" means (A) any substance designated pursuant to
section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution or substance
designated pursuant to CERCLA § 102 (C) any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the SWDA (D) any toxic pollutant listed
under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the
Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to
which the Administrator has taken action pursuant to TSCA § 7. The term does not include
petroleum, including crude oil or any fraction thereof, or natural gas, natural gas liquids, liquefied
natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
3. Scope of the Order
Under § 106, whenever the President determines that there may be an imminent and
substantial endangerment to the public health or welfare or environment because of an actual or
threatened release from a facility, he may commence a civil action to obtain such relief as may be
necessary to abate the danger or threat. The President may also, after notice to the affected state,
issue an order to compel cleanup and obtain such other relief as may be necessary to abate the
danger or threat and protect public health and welfare and the environment. Failure to comply
with an order may result in a penalty of up to 527,500 a day.
4. Legal Issues
CERCLA § 106(a) provides that the President is to determine whether there may be an
imminent and substantial endangerment. The President has delegated this authority to the EPA
Administrator. An "endangerment" is not actual harm, but a threatened or potential harm. B.F.
Goodrich v. Murtha. 697 F. Supp. 89, 96 (D. Conn. 1988). The United States must prove only
that there may be an endangerment, not that there is an endangerment. United States v.
Conservation Chemical II. 619 F. Supp. 162, 175 (W.D. Mo. 1985). The endangerment may be
to the public health or public welfare or the environment. Id at 175. The United States need not
prove endangerment to people; a possible endangerment to public welfare alone or to the
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environment alone suffices. Id. at 192. Federal facilities can be ordered to take action by EPA
under § 106 subject to concurrence by the Department of Justice. Public welfare encompasses,
"health, safety, recreational, aesthetic, environmental and economic interests." Id. At 192. An
endangerment is "imminent" if the factors giving rise to it are present, even though harm may not
be realized for years. Reillv. 546 F. Supp. at 1109-10. An "endangerment" is substantial if there
is reasonable cause for concern that someone or something may be exposed to a risk of harm by a
release or threatened release of a hazardous substance. Conservation Chemical. 619 F. Supp. at
195-196.
In United States v. Price. 577 F. Supp. at 1103 (D. N.J. 1983), the court was faced with
the issue of whether a past, nonnegligent, off-site generator should be held strictly liable for
hazardous waste deposited at a landfill, in an action brought by United States under CERCLA.
One main thrust of the court's analysis dealt with reconciling CERCLA § 106(a) with RCRA
§ 7003. The Price court concurred with the finding in Reillv that "the imminent hazard provisions
of § 106(a) are even broader than those articulated in § 7003." Reillv. 546 F. Supp. at 1111.
The court reached this conclusion by reviewing the statute and legislative history which indicate
that (1) Congress intended for the government to have the necessary tools to respond promptly
and effectively to problems of national magnitude; and (2) Congress intended that those
responsible for problems caused by the disposal of chemical poisons bear the costs and
responsibilities for remedying the harmful conditions they created. Id at 1111.
5. Creative Uses of CERCLA $ 106(a1 Orders
In several recent cases, EPA has creatively used its order authority under CERCLA
§ 106(a). For example, residents living near a farm in Guayanilla, Puerto Rico, complained to
EPA about clouds of pesticides which were being sprayed on mangoes and other crops, drifting
into their neighborhood. On December 20, 1996, Region II issued an order under CERCLA §
106(a) to a partnership known as Tropical Fruit, S.P. The order required Tropical Fruit to,
among other things, cease spraying pesticides that contain CERCLA hazardous substances in any
manner that would allow the pesticides to drift or otherwise be released beyond the boundaries of
Tropical Fruit's property. In another case which arose in Bossier City, Louisiana, EPA
documented benzene contamination in the indoor air of certain residences located near a closed
refinery. Region VI issued a Unilateral Administrative Order pursuant to CERCLA § 106(a) in
December 1996 (and amended in February 1997), requiring Canadian Oxy Offshore Production
Company ("COPCO") to clean up the indoor air. Specifically, the order calls for COPCO to both
seal foundation cracks and ventilate residences with the highest benzene concentrations.
EPA has also used its CERCLA § 106(a) order authority in creative ways in earlier years.
For example, at the South Calvacade site several years ago, Region VI issued an order to a
refinery that was the source of a groundwater plume contaminated with petroleum. The order did
not violate CERCLA's petroleum exclusion because Region VI was already using its CERCLA
authority to address a separate, non-petroleum downgradient plume of the refinery. The order
issued to the upgradient refinery was based on the fact that the upgradient plume threatened to
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disrupt the CERCLA cleanup of the downgradient plume, and thus was within EPA's authority
under CERCLA § 106(a).
The following are other examples of when there may be an "imminent and substantial
endangerment" under CERCLA § 106(a):
a. Numerous hazardous substances are present at and being released into
the environment from a facility that is accessible to humans and other
living organisms.
b. A relatively small quantity of hazardous substances that are toxic at low dosage
levels are present and are being threatened to be released from a facility.
c. Contaminated groundwater from beneath a disposal facility is flowing in
the direction of a residential subdivision that uses well water.
d. Numerous hazardous substances are present at and migrating from a
facility and have contaminated the soil and groundwater.
C. SECTION 504 CWA
1. General Purpose:
Section 504 is the Emergency powers provision of the Clean Water Act. Section 504
provides:
Notwithstanding any other provision of this chapter, the Administrator upon
receipt of evidence that a pollution source or combination of sources is presenting
an imminent and substantial endangerment to the health of persons or to the
welfare of persons where such endangerment is to the livelihood of such persons,
such as the inability to market shellfish, may bring suit on behalf of the United
States in the appropriate district court to immediately restrain any person causing
or contributing to the alleged pollution to stop the discharge of pollutants
causing or contributing to such pollution or to take such other action as may be
necessary.
2. Materials Covered
The statutory predicate to action under Section 504 is the receipt of evidence that a
"pollution source or combination of sources" is presenting an imminent and substantial
endangerment to the health or welfare of persons. "Pollution" is defined broadly under Section
502(19) of the Act as "man-made or man-induced alteration of the chemical, physical, biological,
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and radiological integrity of water." While "pollution source" is not defined in the statute, it seems
reasonable to read this term as synonymous with point and nonpoint sources of pollution7.
3. Scope of the Order
Section 504 is the only "imminent hazard" authority which requires pre-response judicial
proceedings. As relief may only be provided by a district court, a judicial referral is required to
initiate a section 504 action. The authority to issue compliance orders and assess penalties
administratively is explicitly provided for elsewhere in the CWA and is not in section 504. Upon
receipt of evidence of an imminent and substantial endangerment, the Agency may bring suit to
restrain "any person" causing or contributing to the pollution to stop the discharge of pollutants.
4. Legal Issues
Section 504 was added to the Federal Water Pollution Control Act by the 1972
amendments to the Act, known as the Clean Water Act. There is very little legislative history or
case law on Section 504, which was patterned after Section 303 of the Clean Air Act. Since its
enactment, only 15 actions have been brought citing Section 504 as grounds for relief. In each
case, section 504 was merely appended to complaints using provisions of other environmental
statutes as the primary enforcement authority. Guidance for such orders was issued on July 30,
1993.
A. Statutory Elements
(1) Action under section 504 should be taken when a source of a pollutant is
presenting a threat to the health or welfare of persons, whether or not the pollutant has actually
been discharged or released.
(2) Evidence that a pollution source is causing or merely "contributing" to the
pollution is sufficient to support the use of a Section 504 action. The legislative history of RCRA
§ 7003 emphasizes the broad reach of this term. Reillv. 546 F. Supp. at 1100.
(3) Is Presenting an Imminent and Substantial Endangerment. Both CWA § 504 and
§ 303 of the Clean Air Act are based upon evidence that a pollution source or combination of
7 Section 201(c), the only other provision of the CWA using the term "pollution source"'
clearly refers to point and non-point sources:
To the extent practicable, waste treatment management shall be on an areawide
basis and provide control or treatment of all point and nonpoint sources of
pollution, including in place or accumulated pollution sources.
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sources is presenting an imminent and substantial endangerment. This should be distinguished
from the thresholds found in CERCLA § 106(a), RCRA § 7003, SDWA § 1431, which are based
upon a showing of evidence or information that the pollution sources may present an imminent
and substantial endangerment. RCRA case law indicates that the statute on its face does not
discriminate between cases of present harm caused by past disposal practices and cases of present
harm caused by ongoing disposal practices. This same reasoning holds true for section CWA 504.
For purposes of determing imminent and substantial endangerment under CWA § 504, a
continuous discharge is not required. The Agency may take preventative action to address a water
pollution episode and an endangerment may be an immediate or long-term problem. Such harm
must only pose a reasonable cause for concern for the public or welfare. The evidence must
support a contemporaneous cause for concern for the health and welfare of persons, or a current
threat to health or welfare.
(4) Health or Welfare of Persons
At the very least, section 504 may be used to address long term threats to health. The
discharge of a pollutant constitutes an imminent and substantial endangerment to the health of
persons when there is a reasonable medical concern over the public health based on an acceptable,
albeit yet unproven, theory that the pollutant may be, for example, teratogenic, mutagenic,
fetotoxic, or carcinogenic, Vertac Chemical Corp.. 489 F.Supp. 870 (E.D. Ark. 1980).
The statutory language permitting Agency action when an endangerment is presented to
the "welfare" of persons allows the Agency to address a wide variety of situations affecting a
person's livelihood. For example, harm to the tourist industry or sport fishermen caused by
polluted waters or sediments may impact people's livelihoods and therefore be subject to action
under Section 504.
(5) Permit as a Shield
Dischargers of pollutants from point sources that are in compliance with a NPDES permit
may attempt to argue that Section 402(k) of the Act shields them from liability under Section 504
as well. However, section 504 applies "notwithstanding any other provisions of [the CWA],
Thus, a section 504 action may be used to defeat the permit as a shield defense.
5. How a § 504 Order is Used
For EPA to exercise enforcement authority under section 504, there must be evidence that
a pollution source or sources is presenting an imminent and substantial endangerment to the health
or the welfare of persons. The evidence may be documentary, testimonial or physical.
Information can be obtained through a section 308 information request. Discharge monitoring
reports and monthly operations reports may be used as evidence. Nonpoint source management
plans, as well as nonpoint source assessment reports and Section 305(b) reports may also be used
to identify sources of pollution. Both permitted and non-permitted dischargers fall within the
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scope of Section 504.
The Agency may use Section 504 to address problems presented by beach closings, fish
kills, contaminated sediments and nonpoint sources. Section 504 may be used as a backup in the
implementation of a state narrative water quality criteria, and as a means to counter the permit-as-
a-shield defense.
This authority was used in a Region IV action against Metro-Dade's (FL) Water and
Sewer Authority. This enforcement case was filed in June 1993 to address an emergency
situation caused by the deteriorated condition of a large sewage pipeline (cross-bay line) running
under Biscayne Bay, Florida, as well as chronic and widespread overflows of raw sewage into
homes, streets, businesses and public waterways, including Biscayne Bay and the Miami River. A
first partial consent decree, entered by the court in January 1994, addressed replacement of the
cross-bay line, as well as some short term preventative measures, pursuant to §504. The second
and final consent decree, entered by the court in September 1995, addresses the remaining claims
under Section 309 of the Act and provides for a settlement of S2 million and SEPs totaling at least
S5 million. The county is expected to spend more than $80 million rehabilitating its system to
prevent the chronic overflows of sewage. The new cross-bay line has been constructed and is
now operational. EPA discovered the violations in this case from news reports.
D. Safe Drinking Water Act § 1431
1. General Purpose and Statutory Scheme
The Safe Drinking Water Act (SDWA) was intended to provide a system of federal
regulations to ensure water quality and to develop programs to ameliorate groundwater pollution
for public water systems. Section 1431 of the SDWA provides national drinking water
regulations that dictate maximum contaminant levels (MCLs) for specified substances or
treatment techniques. The MCLs must protect health to the extent feasible under available
technology and treatment techniques.
Section 1431 of the Act provides that when the Administrator receives information that:
a contaminant is present in or is likely to enter a public water system or an
underground source of drinking water, and
the contaminant may present an imminent and substantial endangerment to
human health, and
the appropriate State and local authorities have not acted to protect public
health.
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The Administrator may 1) issue orders to protect the public health or 2) commence a civil
action for relief, including a restraining order, a permanent injunction, or a temporary injunction.
2. Materials Covered
Section 1401(6) of the SDWA defines "contaminant" very broadly to include "any
physical, chemical, biological, or radiological substance or matter in water." Under this broad
definition, EPA may take action under Section 1431 even when the contaminant in question is not
regulated by the National Primary Drinking Water Regulation (NPDWR) under the SDWA (i.e.,
EPA has not issued a NPDWR for the contaminant or the regulation has been promulgated but is
not yet effective). This authority is clearly supported by the SDWA legislative history.8
3. Scope of the Order
Application of the § 1431 authority nisot limited to existing contamination of a PWS or
USDW but also may be sued to prevent the introduction of contaminants that are "likely to enter"
drinking water. Thus, § 1431 orders should ideally be issued early enough to prevent the
potential hazard from materializing.9 Additionally, EPA may take such actions notwithstanding
any exemption, variance, permit, license, regulation, order, or other requirement that would
otherwise apply.10 Any person who violates, fails, or refuses to comply with any order issued by
the Administrator may be subject to civil penalties not exceeding SI5,000 per day in which the
violation occurs or the failure to comply continues
4. Legal Issues and Use of the §1431 Order
The court in United States v. Price. 688 F.2d 204, 211 (3d Cir. 1982) addressed how an
endangerment to public health is imminent enough to exert §1431 authority. The court held that
§ 1431 authority, like RCRA § 7003 authority, is not limited to emergency situations. The court
held that injunctive relief may be granted where a risk of harm exists; a more lenient standard
than the traditional requirement of threatened irreparable harm. Id. Both the Price court and the
court in United States v. Waste Industries. 734 F.2d 159, 165 (4th Cir. 1984) found support for
this proposition in the legislative histories. By enacting the endangerment provisions of RCRA
and SDWA, Congress sought to invoke the broad and flexible equity powers of the federal courts
in instances where hazardous wastes threatened human health. Price 734 F.2d at 211, citing
H.R. Rep. No. 96-191, 96th Cong., reprinted in (1974) U.S. Code Cong.& Ad. News 6454.
8 See H.R. Rep. No. 1185, 93rd Cong., 2d Sess., 35-36.
9 See Id at 35-36.
10 See Id.
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The courts have emphasized that § 1431 authority may only be invoked to protect public
water supplies. However, in Price, 688 F.2d at 204, the court held that the § 1431 authority is
broad enough to authorize a preliminary injunction ordering a diagnostic study of the threat to a
municipality's public water supply posed by the presence of toxic substances emanating from a
former commercial landfill. Additionally, the court in United States v. Midway Heights Countv
Water District. 695 F. Supp. 1072 (E.D. Cal. 1988) denied respondent's motion to stay an
injunction against a public water system, where the parties stipulated that the level of
contaminants present in the water exceeds MCLs permitted under federal safety standards, even
though a system operator's agreement with its customers purported to limit the use of the water
to irrigation purposes. The court upheld the injunction because 1) the system served at least 25
individuals who use water for human consumption and 2) eventhough the waterprimarily was not
used for drinking water, the presence of organisms that were accepted indicators of the potential
for the spread of serious disease presented an imminent and substantial endangerment from
"human consumption" through such normal uses as bathing, showering, cooking, dishwashing and
oral hygiene.
Endangerments can more readily be determined to be imminent where they involve
contaminants that pose acute human health threats. Examples include:
A nitrate MCL violation when a sensitive population is exposed (i.e., infants
less than six months of age)
A waterborne disease outbreak with or without MCL violations
A microbiological or turbidity MCL violation with or without a
waterborne disease outbreak
Injection of untreated sewage directly into an USDW that is used by a nearby
drinking water well.
EPA may issue orders as necessary to protect the health of persons who are or may be
users of such a system (including travelers), including orders requiring:
The provision of alternative water supplies, at no cost to the consumer,
by persons who caused or contributed to the endangerment
Information about actual or pending emergencies
Public notification of hazards (e.g., door-to-door, posting
newspapers, electronic media)
A study to determine the extent of contamination
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An engineering study proposing a remedy to eliminate the endangerment
and a timetable for its implementation
The halting of the disposal of contaminants that may be contributing to
the endangerment.
E. SECTION 303 CAA
1. General Purpose
Section 303 of the Clean Air Act authorizes the Environmental Protection Agency (EPA)
to bring an action for injunctive relief to abate imminent and substantial endangerments to public
health, welfare, or the environment caused by emissions of air pollutants. Section 303 allows
EPA to initiate judicial action against, or issue an administrative order to, any person who is
causing or contributing to the pollution to stop the emissions of the pollutants or to take other
action as necessary. Section 303 is also a "gap-filling" authority, providing injunctive relief for a
wide range of endangerment scenarios regardless of a pollution source's compliance or nonr
compliance with any provision of the CAA. It also provides injunctive relief when an air
pollutant(s) is not regulated under the CAA.
2. Materials Covered
Section 303 of the CAA authorizes the EPA to bring an action for injunctive relief to stop
the emission of air pollutants that is causing or contributing to an imminent and substantial
endangerment to public health, welfare, or the environment. Section 302 (g) defines "air
pollutant" to mean:
any air pollution agent or combination of such agents, including
any physical, chemical, biological, radioactive (including source material,
special nuclear material, and byproduct material) substance or matter
which is emitted into or otherwise enters the ambient air. Such term
includes any precursors to the formation of any air pollutant, to the extent
the Administrator has identified such precursor or precursors for the
particular purpose for which the term "air pollutant" is used.
3. Scope of the Order
The 1990 Clean Air Act Amendments expanded the scope of EPA's §303 authority from
"imminent and substantial endangerment to the health of persons" to "imminent and substantial
endangerment to public health or welfare, or the environment." The Amendments also eliminated
the requirement for state or local inaction as a prerequisite to EPA initiating action under §303.
The relevant state, however, must be consulted prior to issuance of an order. The duration of
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administrative orders was lengthened pursuant to §303 from 24 hours to 60 days. In so doing,
Congress greatly increased the utility of §303. However, orders cannot extend beyond 60 days.
If relief is required for more than 60 days, EPA must bring suit in district court, either as an initial
action or following the issuance of an Administrative order.
4. Legal Issues
Since this section was rarely used prior to 1990 and was significantly changed in 1990,
there is very little case law. EPA is, therefore, interpreting the terms contained in the § 303
imminent and substantial endangerment provision by looking to the statutory language itself and
legislative history. EPA is also interpreting these terms consistently with the legislative history
and case law previously discussed for the other environmental statutes with similar emergency
powers provisions.
5. Use of the § 303 Order
EPA has exercised its section 303 authority, as revised under the 1990 CAA Amendments
on three occasions." One § 303 order was issued on June 12, 1997, to address an asbestos
hazard at an abandoned industrial site, and another in August 1994, to terminate (and later
modify) a mining chemical company's operations after it released a cloud of hydrogen sulfide gas
into the air, sending some 35 people to the hospital. The third order was issued on October 3,
1997 by Region IV to Trinity American Corporation and Trinity Fibers of Carolina, Inc. (Trinity)
under CAA §§ 303 and 114 concerning its foam and fiber pad manufacturing operations which
are co-located in Glenola, NC.
The administrative order was issued to Trinity arising out reports that contaminants
present in air emissions from the facility were adversely affecting public health and a state order
that required Trinity to cease manufacturing operations. On August 25, 1997, the Agency for
Toxic Substances and Disease Registry (ATSDR) issued a draft Health Consultation indicating
that unidentified contaminants present in air emissions from the foam and/or fiber plants were
presenting a public health hazard. On September 2, 1997, the county health department urged
residents to evacuate the area after the North Carolina Department of Environment, Health, and
Natural Resources (DEHNR) detected unidentified organic vapors at the boundary of Trinity's
property and near adjoining residences at levels of concern. Approximately 100 people took
shelter at a local recreation center. On September 3, 1997, the State Health Director issued an
Order of Abatement, requiring Trinity to cease all manufacturing operations at the foam and fiber
11 Prior to 1990, EPA used its §303 authority on four occasions: one to address high
particulate matter in North Birmingham, Alabama (1971), another to address an asbestos hazard
at a mine in Globe, Arizona (1983), and two § 303 orders were combined with RCRA actions
and issued against property owners to address the storage of hazardous chemicals (1980), and the
storage of pesticides and related chemicals (1980). Air pollution from the chemicals was a
concern at both facilities.
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plants until Trinity can demonstrate its ability to operate without creating a public health nuisance.
To date, Trinity has not challenged the state order; however, the DEHNR requested that EPA
issue an order in support of its own.
While the foam and fiber operations emit a number of hazardous air pollutants, the
constituent so far demonstrating the most definitive link to adverse health effects is toluene
diisocyanate (TDI). The foam operation uses TDI as a raw material in the production of all
grades of foam, which results in the emission of TDI into the ambient air. TDI is a highly reactive
compound that is extremely toxic to humans at low levels. The primary effects are pulmonary;
however, TDI is also a powerful irritant to the mucous membranes of the'skin and eyes and the
respiratory and gastrointestinal tracts. To date, one resident has tested positive for the TDI
antibody and six residents have been shown to have hyper-reactive airway disease. Based on
these preliminary results, it is likely that residents have been sensitized to TDI and other chemical
irritants and any further exposure, either to TDI or the other chemical irritants emitted by both
plants, would pose an imminent and substantial endangerment.
The order requires that Trinity not operate until it has demonstrated it can do so without
presenting an imminent and substantial endangerment and that within 30 days, Trinity submit a
proposed plan for demonstrating its ability to operate safely. The order is supported by affidavits
from surrounding residents concerning adverse health effects and the results of medical
evaluations conducted on 13 residents ofGlenola, as well as a process audit performed by the
Region. The order is effective for no more than 60 days. The Region plans to refer the matter to
the Department of Justice for follow-up civil action to keep the plants from operating should it be
necessary after the 60 days have lapsed.
F. SECTION 112(r) CAA
In 1986, Congress enacted the Emergency Planning and Community Right-to-ICnow Act
(EPCRA) to assist state and local planning entities in preparing to respond to chemical releases.
Because preventing accidents is preferable to responding to them, Congress added Section 112(r)
in 1990. It requires that owners and operators of stationary sources detect and prevent, or
minimize the effects of accidental releases whenever extremely hazardous substances are present
at the facility. The regulations issued to Section 112(r)(7) define these requirements and establish
the deadlines for compliance. The general duty clause in Section 112(r)( 1) has much broader
applicability that the regulations which do not require compliance until June 1999. The general
duty clause has been in effect and enforceable since 1990. It applies to any facility where
extremely hazardous substances are present.
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Section 112(r) provides three principal authorities for EPA to implement:
1. The general duty clause in section 112(r)( 1 )12 - The General Duty Clause is the
umbrella authority. It covers the largest universe of substances and processes. It
establishes broad obligations on the owners and operators of stationary sources.
2. Regulations - The CAA also provides for EPA to publish regulations to specify
chemical accidental release prevention, detection, and mitigation requirements for
a subset of the extremely hazardous substances and processes. Specifically,
Section J 12(r)(3) of the CAA mandates that EPA establish a list of regulated
substances and Section 112(r)(7) requires that EPA impose specific accidental
release prevention, detection, and mitigation requirements for certain sources.
3. Emergency Powers - Section 112(r)(9) gives EPA the authority to issue orders and
seek judicial relief to abate a danger or threat when an actual or threatened
accidental release may cause an imminent and substantial endangerment to human
health or welfare or the environment. Section 112(r)(9) provides:
In addition to any other action taken, when the Administrator
determines that there may be an imminent and substantial
endangerment to the human health or welfare or the
environment because of an actual or threatened accidental
release of a regulated substance, the Administrator may
secure such relief as may be necessary to abate such danger
or threat, and the district court of the United States in the
district in which the threat occurs shall have jurisdiction to
grant such relief as the public interest and the equities of the
case may require. The Administrator may also, after notice
to the affected State in which the stationary source is located,
take other action under this paragraph including, but not
limited to, issuing such orders as may be necessary to protect
human health....
Generally, if there is a release of an extremely hazardous substance, the EPA CEPPO
12 Section 112(r)(l) of the Clean Air Act Amendments states:
The owners and operators of stationary sources producing, processing, handling, or
storing [any regulated or any other extremely hazardous] substances have a general
duty in the same manner and to the same extent as section 654 of Title 29 [OSHA
General Duty Clause] to identify hazards which may result from such [accidental]
releases using appropriate hazard assessment techniques, to design and maintain a
safe facility taking such steps as are necessary to prevent releases, and to minimize the
consequences of accidental releases which do occur.
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program office will conduct an investigation with OSHA. To accomplish this task, EPA and
OSHA have signed a Federal Memorandum of Understanding to coordinate the joint investigation
of certain chemical accidents in a manner in which the Chemical Safety and Hazards Investigation
Board would have investigated them. The MOU details the criteria to determine what accidents
will be investigated jointly by both agencies. The objectives of these investigations are to identify
the causes of accidents, to identify ways to prevent them in the future, and to take enforcement
action as appropriate.
Emergency Order Authority - Section 112(r)(9)
1. General Purpose
When EPA determines that there may be an imminent and substantial endangerment to
human health or welfare or the environment because of an actual or threatened accidental release
of a regulated substance, the Emergency Order authority of Section 112(r)(9) empowers EPA to
seek remedies in court or issue orders to abate such danger or threat.
2. Materials Covered
Regulated substances are defined by the List and Thresholds Rule are listed at 40 CFR
Part 68. Excluded from the list of regulated substances are any air pollutants for which a national
primary ambient air quality standard has been established and substances, practices, processes or
activities regulated under the stratospheric ozone protection provisions of the Clean Air Act.
3. Scope of the Order
Section 112(r)(9) covers stationary sources13, as defined by the CAA. It requires state
notice prior to issuance and requires the Administrator to take action under Section 303 of the
CAA rather than Section 112(r)(9) whenever that authority is adequate to protect human health
and the environment.
4. Legal Issues and Applicability
No case law exists concerning CAA Section 112(r). Section 112(r)( 1) has been invoked
only once against a fertilizer manufacturer in Iowa as the result of an explosion which resulted in
fatalities. Because of the close similarity between CAA Section 112(r) and OSHA Section 654,
13 Section 112(r)(2) defines "stationary source" as "any buildings, structures, equipment,
installations or substance emitting stationary activities (l) which belong to the same industrial
group, (ii) which are located on one or more contiguous properties, (iii) which are under the
control of the same person (or persons under common control), and (iv) from which an accidental
release may occur."
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case law related to this provision may be relevant.
Even though Section 112(r)(9) is untested, enforcement personnel should focus on the
following issues when evaluating the use of this authority:
"Owners and operators" means that both entities are responsible for compliance with
CAA 112(r) at the facility.
Accidental release is defined in the CAA as "an unanticipated emission of a regulated
substance or other extremely hazardous substance into the ambient air from a
stationary source."
"Extremely hazardous substances" are not limited to the list of regulated substances
listed under section 112(r), nor the extremely hazardous substances under EPCRA.
The general duty provisions apply to owners and operators of all stationary sources
which have any "extremely hazardous substances. Although there is no definition
for extremely hazardous, the Senate Report on the Clean Air Act provides criteria
which EPA may use to determine if a substance is extremely hazardous. The report
stated the intent that the term "extremely hazardous substance" would include any
agent "which may or may not be listed or otherwise identified by any Government
agency which may as the result of short-term exposures associated with releases to
the air cause death, injury or property damage due to its toxicity, reactivity,
flammability, volatility, or corrosivity" (Senate Committee on Environment and Public
Works, Clean Air Act Amendments of 1989, Senate Report No. 228, 101 st Congress,
1st Session 211 (1989) -"Senate Report").
As the Senate report states, "the release of any substance which causes death or
serious injury because of its acute toxic effect or as a result of an explosion or fire or
which causes substantial property damage by blast, fire, corrosion or other reaction
would create a presumption that such substance is extremely hazardous." Senate
Report at 211. Revisions to the list of regulated substances under CAA 112(r) do not
affect the applicability of the general duty provisions.
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Survey of Imminent and Substantial Endangerment Authorities
This table does not provide an exhaustive list or description of every statutory authority that may be available to EPA to address
endangerments, hazards, releases, etc. Rather, it summarizes significant aspects of several authorities that are similar to RCRA sec.
7003.
Statute
Materials
Covered1
Parties Covered
Triggering Activity
Remedies
Time
Constraints
Consultation
w/States
RCRA
7003(a)
any solid or
hazardous wasie
(includes
petroleum)
any person (including
any past or present
generator, transporter,
o/o) who has or is
contributing
handling, storage, treatment,
transportation or disposal that
may present an imminent and
substantial endangerment to
health or the environment
Administrator may bring suit to restrain
from handling, storage, treatment,
transportation or disposal or order action
as necessary. Administrator may also
issue such orders as necessary to protect
public health and the environment
N/A
notice
required
RCRA
3008(h)
hazardous waste
from a TSD
subject to interim
status
requirements
(EPA interprets
to include
hazardous
constituents)
o/o of TSD
release to the environment
Administrator may issue an order
requiring corrective action, suspend or
revoke interim status, or require other
response method as deemed necessary to
protect human hlteah or the environment
Or, administrator may commence a civil
action for appropriate relief, including
permanent or temporary injunction.
N/A
not required
1 See definitions at end of text.
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Statute
Materials
Covered
Parties Covered
Triggering Activity
Remedy
Duration
Consultation
w/ Slates
RCRA
3013
hazardous waste
present o/o of a
facility or sue at
which hazardous
waste is or has been
treated, stored or
disposed of
(if current o/o could
not be expected to
know, then most
recent previous o/o
who could be
expected to know)
presence or release that may
present substantial2 hazard to
human health or the
environment
Administrator may issue an order to
require the owner or operator to conduct
monitoring, testing, analysis, and
reporting as the administrator deems
reasonable to ascertain nature and extent
of hazard. If anyone does not comply the
administrator may commence a civil
action
peison to whom
order is issued
must submit a
proposal to carry
out
administrators
orders within 30
days
not required
CERCLA
104(a)
any hazardous
substance or
pollutant/contami
nant
current o/o, o/o at
time of disposal,
generator, transporter
who selected site
actual or substantial threat of
release
Perform or arrange for lemoval or
remedial action or any other iespouse
measure consistent with the National
Contingency Plan (IIPA can seek cost
reimbursement) No UAO authority
N/A
not required
CERCLA
104(e)(5)
Listed hazardous
substances (as
defined by
CERCLA§
101(14))
persons who have
relevant information
of a release or
threatened release.
If consent is not granted to
access information relevant to
a release or threatened release
of a hazardous substance,
entry to vessel, facility,
establishment where a
hazardous pollutant is stored
or released, or inspect and
obtain samples.
President may issue a compliance order,
after reasonable notice is provided
President may ask Attorney General to
commence civil action to compel
compliance with a request or order
N/A
3 Legislative history indicates that the standard for substantial hazard is lower than the standard for imminent and substantial
endangerraent.
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Statute
Materials
Covered
Parties Covered
Triggering Activity
Remedy
Duration
Consultation
w/ Stales
CERCLA
106(a)
hazardous
substance
current o/o, o/o at
time of disposal,
generator, transporter
who selected site
actual or threatened release
that may present an
imminent and substantial
endangerment to public
health or welfare or the
environment
Commence a civil action or issue orders
as may be necessary to protect public
health and welfare and the environment
N/A
notice
required
CWA
311(c)
any quantity of
oil or CWA
hazardous
substance
o/o of vessel or
facility
discharge or substantial threat
of discharge posing
substantial threat to public
health or welfare
in accordance with the National
Contingency Plan, perform or direct
actions to remove the discharge or to
mitigate or prevent the threat of
discharge. Remove, and if necessary,
destroy a vessel discharging, or
threatening to discharge
N/A
not required
CWA
311(e)
reportable
quantity of oil or
CWA hazardous
substance
(reportable
quantity)
o/o of vessel or
facility
actual or threatened discharge
that may be an imminent and
substantial threat to public
health or welfare
commence a civil action or issue orders
as may be necessary to protect the public
health and welfare; or refer abatement
action to DOJ
N/A
required
CWA
504
pollution
any person causing or
contnbuting to
pollution
conditions presenting an
imminent and substantial
endangerment to health or
welfare, including livelihood
commence a civil action or seek a
judicial order to restrain any person
causing or contributing to the pollution
to stop discharging or to take other
necessary action
N/A
not required
SDWA
1431
contaminant
any person causing or
contnbuting to the
endangerment
contaminant that is present in
or is likely to enter public
water system or underground
source of drinking water that
may present an imminent and
substantial endangerment to
the health of persons
take actions as necessary and practicable
m light of such imminent endangerment
and to prevent imminent endangerment
Actions include but are not limited to
issuing orders and commencing civil
action
N/A
to extent
practicable
3
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Statute
Materials
Covered
Parties Covered
Triggering Activity
Remedy
Duration
Consultation
w/ States
CAA 303
air pollution
any person causing or
contributing to the
pollution
conditions presenting
imminent and substantial
endangemient to public-
health or welfare or the
environment
commence civil action or issue
administrative order to stop emission of
air pollutants or to take such other action
as may be necessary
effective not
more than 60
days, however,
judicial relief
beyond 60 days
is possible
icquired
CAA
112(f)(9)
regulated
substance
o/o of a stationary
source
actual or threatened accidental
release that may present an
imminent and substantial
endangemient to human
health or welfare or the
environment
administrator may secure relief in court
May also issue orders necessary to
protect human health, after they notify
state
N/A
not required
TSCA 7
imminently
hazardous
chemical
substance or
mixture or article
containing such a
substance or
mixture
any manufacturer,
processoi or
distributor
manufacture, processing or
distribution that presents an
imminent and unreasonable
risk of widespread injury to
health or the environment
commence a civil action for seizure or
issue an order to secure necessary lelief
N/A
not required
TSCA
5(0
new chemical
substance
requiring notice
any manufacturer,
processor or
distributor
manufacture, processing,
distribution, use or disposal
that presents or will present
an unreasonable risk of injury
to health or the environment
issue rulemaking regarding use of the
chemical substance, issue an
administrative order oi seek injunctive
relief in district court
N/A
not required
F1FRA
6(c)(3)
Any registered
pesticide covered
by FIFRA
registrant of the
pesticide
determination that the
suspension of a pesticide's
registiation is necessary to
prevent an imminent hazard
in an emergency, the Administrator may
suspend a pesticide icgistration w/o
nonce, 1£PA then must issue a notice of
intent to cancel or change classification
within 90 days
N/A
not required
4
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Statute
Materials
Covered
Parties Covered
Triggering Activity
Remedy
Duration
Consultation
w/ States
EPCRA
323(b)
listed hazardous
substances
covered by 311,
312, 313
facility o/o
Medical emergency or
chemical identity needed to
assist in emergency first aid or
individuals have been exposed
to the chemical
Health professional may bring action in
U.S district court to require facility o/o
to provide the information
N/A
not required
5
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Definitions of Materials Covered
RCRA
"Solid waste"- any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded matenal
including, solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining, and agriculture operations, and from community activities. Such
term does not include solid or dissolved matenal from domestic sewage, irrigation return flows or industrial discharges from point sources Or special nuclear or byproduct matenal
"Hazardous waste"- a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics
may cause or significantly contribute to increase to mortality and illness, or poses a substantial present or potential hazard to human health or the environment.
CERCLA section 101 (14) and 101 (33)
"Hazardous substance"- hazardous substances designated under CVVA, or any additional element, compound, mixture, solution, or substance designated under
CERCLA Any hazardous waste under RCRA Any toxic pollutant listed under pretreatment provisions of CWA. Any hazardous air pollutant under sec 1 12 of CAA Or any
imminent hazardous chemical substance for which the administrator has taken action under TSCA section 7 Such term docs not include natural gas or pelioleum pioducls
"Pollutant or contaminanf'-any element, compound, substance or mixture which after release into the environment and upon exposure, inhalation, ingestion, or
assimilation into any organism will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions, or
physical deformations Such term does not include natural gas or petroleum products
CWA sec. 311, See EPA guidance on Section 311 (c) and (e) Orders, issued July 1, 1997
"Oil"- oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil
"Hazardous substance"- substance designated through rulemaking as elements or compounds which, when discharged in any quantity into or upon navigable waters
of the US or adjoining shorelines or the waters or the contiguous zone or in connection with activities under the Outci Continental Shelf Lands Act or the Deepwater Port Act of
1974, or which may affect natural resources belonging to, appertaining to or under the exclusive management authority of the US present an imminent and substantial danger to
the public health or welfare, including, but not limited to fish, shellfish, wildlife, shorelines, and beaches
CWA General Provisions
"Pollutant" - dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wates, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand cellar dirt and industrial, municipal and agricultural waste discharged into water (does not mean "sewage from vessels,"
water, gas or other material which is injected into a well to facilitate production of oil or gas)
SDWA
"Contaminant" - any physical, chemical, biological, or radiological substance or matter in water.
CAA sec. 303
"Air pollutant" - any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive substance or matter which is emitted
into or otherwise enters the ambient an Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identifies such precursor
CAA sec. I12(r)(9)
"Regulated substance"- piomulgaied initial list of 100 substances which, in the case of accidental release, are known to cause or may be reasonably anticipated to
cause death, injury, or serious adveise affects to human health or environment. Initial list includes chlorine, anhydrous ammonia, methly chloride, ethylene oxide, vinly
chloride, methly isocyanatc, hydiogen cyanide, ammonia, hydrogen sulfide, toluene dissocyanate, phosgene, bromine, anhydrous hydrogen chloride, hydrogen fluoride,
anhydrous sulfer dioxide, and sulfei tnoxide No air pollutant for which a national primary ambient air quality standard has been established shall be included on any such list
Nor is any substance, practice, process, or activity regulated under the Stratospheric Ozone Protection provisions subject to regulations under this subsection
6
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TSCA
"Chemical substance"- any organic or inorganic substance of a particular molecular identity, including (i) any combination occurring in pan or whole; (li) any
element or unconibined radical Such term docs not include a mixture, pesticide, tobacco, ant nuclear material, any food, drug, or cosmetic, and any article in which the sale of
which is subject to the tax imposed by section 4181 IRC.
TSCA sec. 7
"Imminently hazardous chemical substance or mixture"-a chemical substance or mixture which presents an imminent and unreasonable risk or serous or
widespread injury to health or the environment before a final rule under 2605 of this title can protect against such risk.
FIFRA
'"Pesticide"- any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances
intended for use as a plant regulator, defoliant, or desiccant Such term does not include any article that is anew animal drug
"Device"- any instrument or contrivance(other than a firearm) which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or
animal life(other then man, bacteria, virus, or other microorganism) Such term docs no! include equipment used for the application of pesticides when sold separately.
EPCRA
"Hazardous chemical"- any toxic chemical subject to section 313. However such term does not include the following: (l)Any food, food additive, color additive,
drug, or cosmetic regulated by FDA. (2) Any substance present as solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions
of use. (3) Any product used for personal, family or household purposes, or is present in the same form and concentration as product packaged for distribution and use by the
general public (4) Any substance to the extent it is used in a research lab or a hospital. (5) Any substance to the extent it is used in agriculture or is fertilizer.
7
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Administrative Orders
Order
CAA § 303
In re Minerec Mining Chemicals. No. R9-94-34. Region 9
Facts
Facility's ongoing releases of hydrogen sulfide and other gases caused
nearby residents to be hospitalized or seek medical treatment. While the
local air district has attempted to decrease the level of contamination in the
atmosphere, the threat of further discharges from the facility remains.
Relief Ordered
Shutdown manufacturing operations; no new manufacturing operations
may begin; report by telephone each day (including weekends) on the
status of shutdown efforts.
Order
CAA § 303
In re Trinitv American Corp.. Region 4
Facts
Residents living near a foam and fiber pad manufacturing plants reported
experiencing severe headaches, chest pain, dizziness, etc. The state
environmental agency recommended residents evacuate and ordered
Trinity to cease all manufacturing operations. Six of thirteen residents
were diagnosed with reactive airway disease attributable to environmental
exposure.
Relief Ordered
Shutdown manufacturing operations until EPA determines operations will
not present an imminent & substantial endangerment. If Trinity intends to
resume operations, must submit a written proposal that includes measures
to protect residents living near the plants. EPA must approve proposal.
Order
CAA § 303
In re Shallow Water Refinery. No. VII-97-CAA-120. Region 7
Facts
Reclamation and demolition activities at an oil refinery caused airborne
releases of asbestos. Inspectors observed large quantities of friable
asbestos lying on the ground and children playing in and around the
asbestos.
Relief Ordered
Cease all activities at the refinery; keep all minor children outside the
property; restrict access to the refinery; cease all disposal and removal of
property from the site; provide records to EPA of all names and addresses
of facilities where metals have been salvaged; provide AHERA certified
plan to bring facility into compliance.
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Order
CERCLA § 106(a)
In re Tropical Fruit, S.E.. No. II-CERCLA-97-0301. Region 2
Facts
Farm sprayed its crops with high-pressure spraying machine, causing
pesticides and fungicides to drift onto nearby residential property.
Residents complained of adverse health effects, odors coming from the
farm during spraying operations, and being hit by spray. Farm violated
TRO.
Relief Ordered
Cease spraying pesticides and fungicides in such a manner that causes
substances to drift or migrate beyond farm's boundaries; develop and
implement an EPA-approved plan to apply substances so that they will not
drift; do not spray any pesticide or fungicide in a manner inconsistent with
its label; all activities required under the order must be performed by well-
qualified, licensed persons; provide monthly progress reports.
Order
CERCLA §§ 106(a), 122 and SDWA § 1431
In re U.S. DeDt. Of Agriculture Commodity Credit Corporation. No. VII-
90-F-0037. Region 7
Facts
Grain storage bin facility contaminated a town's public water supply with
carbon tetrachloride, carbon disulfide and malathion.
Relief Ordered
Discover and record the locations of, and the owners of, all drinking water
wells that may be effected by the contamination; develop and implement an
EPA-approved plan to determine the extent of the groundwater
contamination; submit to EPA a draft report evaluating alternative
response actions and selecting the action to be taken at the site; implement
the EPA approved response action; carry out all operations and
maintenance of the response action systems; submit monthly and quarterly
progress reports.
Order
CERCLA § 106(a)
In re Penrose Ave. Site. No. III-90-30-DC. Region 3
Facts
EPA conducted an emergency assessment of an open lot in Philadelphia
that a salvage company used for dumping demolition debris, refuse, and
garbage. EPA found 50-60 drums of unknown materials located in or near
two roll-off dumpsters, and materials leaking from the drums and
dumpsters onto the ground. Many drums were dented, rusted, opened, and
contained holes, and one drum was outside the roll-off where it had been
crushed and was leaking. Air monitoring tests indicated the presence of
organic vapors in and near the drums as high as 580 ppm. Test of
materials in drums indicated the presence of PCBs, chlorinated benzenes,
and chlorinated solvents. EPA notified the site owner of its potential
-2 -
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Relief Ordered
Retain a qualified contractor to conduct necessary response activities
identified in the order; submit a work plan to EPA detailing response
measures to be taken and a schedule of operations; implement the EPA-
approved work plan; submit weekly progress reports; within 10 days of
completion of the work plan activities, submit a written report to EPA
detailing action taken, and notifying EPA of such completion.
Order
CWA § 311
In re Crofts Oil Co.. No. 8-CWA-VIII-94-20. Region 8
Facts
A six-inch deep gasoline plume estimated to contain 7000 gallons of
gasoline contaminated an underlying water table aquifer and posed a
substantial threat of discharge of oil to a nearby creek.
Relief Ordered
Locate and identify source of the gasoline discharge; initiate measures to
ensure that no further contamination occurs; implement EPA-approved
plan for containment and remediation of the gasoline leak, including a
registered professional engineer's evaluation of the extent to which the
aquifer has become contaminated; monitor the contaminant plume to
determine the extent of future migration, the probable path of the plume,
and to ensure the adequacy of the remedial action, [see also SDWA §
1431 order]
Order
CWA § 311(c), SDWA § 1431, RCRA § 7003
In re Pickett Road Terminal Site. No. RCRA-3-004-IT, S. Region 3
Facts
An investigation of an oil release from an 18-acre petroleum distribution
facility into a nearby creek revealed that there was and may still be a
release of petroleum hydrocarbons at and around the site, and that there is
a plume of oil in an aquifer that provides water to nearby residents.
Sixteen hundred homes are in the immediate vicinity of the facility.
Ninety-four private drinking water wells tap into the aquifer and numerous
surface water bodies are located near the facility. Oil was found in 55 out
of 142 monitoring wells, spanning approx. 16 acres of ground water
surface. EPA estimated that the total volume of oil underground is greater
than 100,000 gallons. Air monitoring at and around the site has recorded
vapor levels of more than 1000 units greater than background. Vapors
include a combination of toluene, ethyl benzene, and/or xylene.
-3-
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Relief Ordered
Notify EPA in writing of the identity and qualifications of all persons who
will be primarily responsible for developing the Emergency Measures Plan;
perform EPA-approved investigative measures (locate all on-going and/or
past leaks, spills, or other releases of oil, perform air monitoring in
stormwater sewer system, determine plume's migration rate); perform
EPA-approved corrective actions (remove free-phase oil, construct trench
and well barrier system); implement site monitoring program; properly
collect, store, transport and dispose of all contaminated soils and solids.
Order
RCRA § 7003
In re Countv of Westchester, No. 94-7003-0215. Region 2
Facts
Numerous water, soil, and sediment samples taken at a county target and
trap and skeet range by the county health department, the state
environmental agency, and EPA revealed elevated levels of lead in the soil
and water. The ATSDR issued a health consultation stating that the levels
of lead contamination "pose a significant threat to human health."
Workers, site residents, users of the range, hikers, and bridle trail users
have a potential exposure to lead from spent lead shot, contaminated soil,
water, stream sediments, and related dust.
Relief Ordered
Post danger/keep-out signs at the range's entrance and at the entrance to
all trails that pass within one mile of the range; restrict access to all hiking
and bridle trails within one mile of the range's border; restrict access to a
tributary that traverses the property and is adjacent to a school
playground; remove residual clay pigeons, shotgun wadding and pellets;
submit site assessment results and an Environmental Impact Analysis
Report to EPA; implement EPA-approved remedial option; submit
quarterly reports.
Order
RCRA § 7003
In re Oliver R. Hill. No. 7003-95-0203. Region 2
Facts
Leaking gasoline from an UST contaminated the primary source of
drinking water for two nearby residences. Another nearby residence
detected gasoline fumes while digging a groundwater well on his property
for the purpose of obtaining drinking water. Soil samples revealed the
presence of benzene, xylene, and toluene. Samples from 19 monitoring
wells installed between the facility and residences confirmed the
contamination. The state environmental agency also observed approx. 1
foot of pure product gasoline overlying the aquifer in an approx. 200 foot
square area located between the facility and residences. Owner refused to
sign order on consent.
-4-
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Relief Ordered
Retain a professional engineer to assess the structural integrity of all
USTs, and to characterize the rate and extent of hazardous constituent
migration; repair or close any USTs that are found to be corroded or
potentially subject to failure; remediate soils and groundwater; submit
workplan to EPA which sets forth the procedures by which the owner
proposes to characterize and remediate contaminated soils and
groundwater; implement EPA-approved workplan; post warning signs.
Order
RCRA § 7003
In re Rail Services, Inc.. No. 91-14-R. Region 4
Facts
An investigation undertaken to determine a railcar cleaning facility's
compliance with a § 3008(h) Order revealed continuing releases of
hazardous wastes from many of the SWMUs identified in the Order, and
violations of numerous generator and interim status requirements.
Further, three separate explosions at the facility had killed one employee
and injured five others.
Relief Ordered
Cease and desist the receipt, generation, and management of all solid and
hazardous waste; provide security; post warning and no smoking signs;
provide classroom instruction; equip the facility with fire fighting
equipment; amend contingency plan; identify, describe, and quantify all
hazardous waste at the facility; inspect containers for leaks and transfer
hazardous waste from leaking containers; close containers that do not have
lids; create aisle space.
Order
RCRA § 7003
In re Chief SuddIv Com.. No. VI-7003-97 [first order]. Region 6
Facts
Explosion and fire at a hazardous waste collection, storage, fuel blending,
and recycling facility consumed many of the 1450 drums of hazardous
waste in storage; open flames and a smoke plume rose 1000-3000 feet
above the facility; three employees were injured, one died; all persons
within 1 1/2 miles to the north and one mile to the east of the facility were
evacuated. Three days after the fire, an overturned drum of acid mixed
with wastewater from the firefighting efforts, resulting in the release of a
large acid plume. The plume migrated offsite and dissipated in about 10
minutes. Later, facility personnel poured water on a drum of solidified
material that was smoking and smelled of ammonia, causing the release of
a large white plume. The reaction become more intense until the waste
was covered with soil.
-5-
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Relief Ordered
Cease arid desist the receipt, generation, and management of all solid and
hazardous waste; post warning signs; submit a modified hazardous waste
permit application and air quality permit; submit a report detailing facility
operations before the fire and indicating cause of the fire; submit a report
certifying integrity of equipment before returning it to service; update
Facility Contingency Plan; provide classroom instruction on hazardous
waste management procedures to all facility personnel; provide monthly
progress reports: submit results of all sampling and tests to EPA. [see also
second order below]
Order
RCRA § 7003
In re Chief SuddIv Com.. No. VI-7003-97 Tsecond orderl. Resion 6
Facts
The investigation into the explosion at the above facility resulted in the
issuance of a second administrative order. The facility did not have an air
permit to construct or operate the facility. There were no air emission
controls on the ash discharge of a dryer that heats hazardous wastes to
drive off volatile compounds or on a hazardous waste shredder. The dryer
also leaked and emitted vapors from the inspection plates. Nearby
residents complained of frequent strong odors emanating from the facility.
Residents experienced trouble breathing, persistent coughs, migraine
headaches, chest pressure, chemical burns, sinus problems, allergies, nose
and throat irritations, and asthma. After a release that turned the sky
yellow, one resident started coughing and was taken to the hospital, where
she stayed for 6 weeks. Dead birds and squirrels were found in the
resident's yard. During a search of the building where the explosion and
fire occurred, liquid was observed percolating through the building's
concrete wall and accumulating in a pit. About 10 gallons had
accumulated and tests indicated that the liquid contained 4-nitrophenol,
phenol, tetrachloroethene, and toluene. Another building contained 50 lb.
sacks of ammonium nitrate that were deteriorating, sweating, and leaking.
The facility's septic tank had also contaminated a field and 500 drums
were reportedly buried on the facility's property. Trailers on the site
contained 320 double-stacked drums that contained liquids, solids, and full
or partially full aerosol canisters of flammable materials. Approx. 40
residences are within a mile of the facility. The area around the facility is
zoned agricultural.
-6-
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Relief Ordered
Post warning signs and install security fencing to control access to
contaminated areas; remove all leaking roll-off containers; perform a
complete hazardous waste characterization of all containers and wastes
that are not properly labeled; properly label, store, and treat/dispose of any
waste determined to be hazardous; remove septic tank and all lateral drain
field lines; backfill the area will clean soil and dispose of all excavated
materials as hazardous waste; conduct a survey to determine where there
are any buried drums on the facility's property; perform a complete
hazardous waste characterization of the contents of any buried drums and
dispose of properly; locate all off-site water wells within a 2-mile radius of
the facility's boundary; install, operate, and maintain air quality monitoring
stations, including on-site and off-site down-wind stations; perform air
emission source testing for all active air emission sources at the facility;
implement EPA-approved RCRA facility investigation and corrective
measures study to determine the extent of contamination; implement EPA-
approved corrective measures; perform all work under the direction and
supervision of an engineer or geologist with expertise in hazardous waste
site cleanup.
" ~,>r ¦ „.vr.
Order
RCRA § 7003
In re Redound Industries. Inc.. No. II RCRA-7003-94-0214. Region 2
Facts
Inspectors at two pen manufacturing facilities located within New York
City observed the generation of spent solvents; more than 200 unidentified
containers, primarily 55-gallon drums, within the facilities; more than 25
unidentified 55-gallon drums on the sidewalk outside of one facility; an
intentional release of more than 10 gallons of propyl alcohol onto one
facility's floor; several leaking drums that had been unsuccessfully repaired
with electrical tape; and the disposal of trichloroethane waste into regular
trash receptacles. Acetone soaked wiping rags were also discarded in the
trash and children frequently rummaged though the trash dumpsters
looking for discarded pens. Most of the waste in drums had been in
storage for an indefinite period of time and both facilities were located
over environmentally sensitive sole source aquifers. The facilities failed to
notify EPA or the state of their hazardous waste activities under RCRA §
3010.
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Relief Ordered
Post danger signs and take steps to prevent the unknowing entry of
persons on the premises; conduct an initial visual inspection of all
containers and transfer contents of leaking containers; conduct daily
inspections of containers; inventory all containers; submit "Notification of
Hazardous Waste Activity" forms and a hazardous waste storage
notification and Part A application to EPA; sample and analyze content of
containers; ship drums containing hazardous waste offsite, using an
authorized transporter; submit a plan to EPA for approval for the sampling
and analysis of the materials contained in all sumps, pits, or floor drains.
Order
RCRA § 7003, SDWA § 1431
In re Broomer Research, Inc.. Nos. II RCRA-94-7003-0212A, IT SDWA-
94-1431-0212B. Region 2
Facts
Optical lense manufacturer discharged sludge to the facility sanitary septic
system that is not connected to any privately or publicly operated waste
water treatment works. Samples of the sludge contained appreciable
amounts of acetone, 1,1,1-trichloroethene, and radionuclides. The facility
is located in a mixed industrial and residential area and is situated directly
over one or more groundwater aquifers that are underground sources of
drinking water for the community. Several residences are located within a
1000 foot radius of the facility. Fourteen public water supply wells are
located within a 2 mile radius of the facility,
Relief Ordered
Post warning signs and prevent unknowing entry of person and animals
onto the facility; identify all temporary and permanent drains, sumps, pits,
septic tanks, etc. and all other waste management units located within the
facility; characterize the chemical composition of each waste stream
generated at the facility; characterize the extent of migration of any
hazardous or radioactive constituents; implement an EPA-approved
sampling and analysis plan, a medical monitoring program to assess the
exposure of workers at the facility, and a program for the identification
and management of hazardous wastes; close all unpermitted temporary
and permanent drains, sumps, etc.; submit a plan for future operations;
excavate, containerize, and properly treat or dispose of all contaminated
soils; implement a groundwater remediation system capable of effecting
rapid source reduction of and preventing further migration of the
hazardous constituents identified in the aquifer.
"
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Order
RCRA § 7003
In re Akzo Nobel Chemicals. Inc.. No. RCRA-III-005TH. Region 3
Facts
During a chemical manufacturing facility's cleanup and excavation of a
former polyvinyl chloride resin storage area, a thin layer of resin was
detected extending beneath an adjacent wetland area located on the
facility's property. Subsequent facility test pits revealed the presence of
black ash material and carbon disulfide plant waste. A portion of the
facility which includes the storage pits is listed on the NPL. Previous test
revealed that on-site soil and groundwater contained elevated levels of
vinyl chloride (VC), and offsite residential wells were contaminated with
VC, 1,2-dichloroethane and 2,2,2-trichloroethane. Tetrachloroethylene
and trichloroethylene have also been released from the facility. The facility
is located approx. 1 mile from a creek and during rainfall there is
intermittent drainage of hazardous constituents to a tributary of the creek.
Relief Ordered
Implement EPA-approved plan to sample carbon disulfide contaminated
area and if EPA determines it to be necessary, implement EPA-approved
interim measures to mitigate release of sulphur-containing hazardous
waste; implement EPA-approved RCRA facility investigation to determine
the presence, magnitude, extent, direction, and rate of movement of any
hazardous or solid wastes, or hazardous constituents within and beyond
the facility boundary; submit corrective measures study and implement
EPA-selected corrective measures; implement EPA-approved waste
minimization plan; review, assess the effectiveness of, and revise the waste
minimization plan, as deemed appropriate by EPA, on an annual basis.
Order
SDWA§ 1431
In re Crofts Oil Co.. No. 8-PWS-VIII-94-21. Region 8
Facts
A six-inch deep gasoline plume estimated to contain 7000 gallons of
gasoline was likely to enter a public water system or other underground
sources of drinking water. State and local officials did not act to the
degree necessary to protect human health because of jurisdictional
problems.
Relief Ordered
Initiate measures to ensure no further contamination; implement EPA-
approved plan for containment and remediation of the gasoline leak; plan
must include a qualified hydrogeologist's evaluation of the extent to which
the aquifer and the drinking water distribution lines have become
contaminated; monitor and map the plume; take samples every two weeks
of water in the public water supply distribution lines and have analyzed by
a certified laboratory, [see also CWA § 311 order]
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Order
SDWA § 1431
In re Citv of Mavfield. No. VII-PWS-04. Region 7
Facts
Water samples taken from a public water system tested positive for the
presence of total coliform and fecal coliform. The system has approx. 40
service connections and serves approx. 125 individuals. City failed to
notify persons served by the system or provide a copy of the public notice
to the state environmental agency.
Relief Ordered
Chlorinate the water supply; issue a public notice to water users regarding
the presence of fecal coliform; take samples daily for chlorine residual
analysis; implement EPA-approved plan to produce finished water that
will not exceed the MCL for total coliform bacteria and fecal coliform;
provide public notice every three months of violations, if they continue to
exist; provide public notice of any future MCL violations and monitoring
deficiencies.
Order
SDWA § 1431
In re Richard Brannan. No. 8-PWS-VTII-96-003. Region 8
Facts
Inspection of public water system's treatment plant revealed that the
filtration treatment technique for the public water supply was disconnected
and completely inoperative. Source of water for the water system is of
sufficiently poor quality that it must be filtered. The water source is a high
risk source because of the presence of livestock and other sources of
contamination within the watershed.
Rel[ef Ordered
Immediately provide a hand-delivered boil water notice to all customers
connected to the water system; provide water from an alternate source;
continue to provide weekly boil water notices until water meets national
water quality standards; provide a complete evaluation to EPA of the
public water system to determine changes necessary; submit quarterly
reports on progress made toward bringing system into compliance with
filtration requirements; monitor water and provide results to EPA once
every two weeks.
Order
SDWA § 1431
In re Fiftv Seventh & North Broadwav Ground Water Contamination
Area Sedewick Countv. Kansas. No. VII-SDWA-01. Region 7
Facts
Four businesses--a petroleum pipeline owner and operator, a gasoline
filling station owner and operator, a waste-oil refinery, and a paint
manufacturer-contaminated the soil, surface and ground water within a
180-acre site. More than 1000 people reside within the area. Of the 27
contaminants in the soil and water, 16 exceeded health-based standards.
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Relief Ordered
Identify all homes and businesses using water from wells within the site;
offer and provide an adequate supply of bottled water to identified homes
and businesses; implement an EPA-approved plan to provide homes and
businesses with an alternative source of water or treatment system;
provide monthly status reports.
Order
SDWA § 1431
In re ImDerial Irrigation District. No. PWS-EO-93-160. Region 9
Facts
An irrigation district provides piped water for human consumption to
approx. 6,000 persons via a distribution system consisting of approx.
1,675 miles of open and unprotected canals and laterals running from the
Colorado River. The district's customers use the water for bathing,
cooking, dishwashing, and oral hygiene. Some customers may drink the
water. The area surrounding the canals and laterals contains numerous
potential sources of contamination, including storm water runoff, septic
tanks, aerial pesticide applications, wild and domestic animals, and
hundreds of miles of roads. The district has failed to comply with the
SDWA's monitoring requirements and does not treat the water it supplies
to its customers. EPA observed debris floating on the water and
submerged on the canal and lateral bottoms. Seventy-seven water samples
were found to be contaminated with total coliform. Thirty-one samples
indicated the presence of fecal coliform or E. coli.
Relief Ordered
Mail public notification to all drinking water customers; certify to EPA
that this requirement has been met; implement EPA-approved plan to
ensure that new drinking water connections are not added to the system;
submit to EPA the names and addresses of all drinking water customers,
including the average volume of water billed to each customer's household
per month for 1992; implement an EPA-approved plan for: directly
contacting customers who do not receive an alternate source of safe water
from a private distributor for domestic use; providing an alternate source
of safe water; monitoring contaminants in the water system; and managing
the canal distribution system to minimize the entry of contaminants.
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Order
SDWA § 1431
In re UDDer Lake Pomo Water Ass'n. No. PWS-EAO-90-01 3 Repinn 9
Facts
A public water system located on Indian land exceeded the MCL for
coliform bacterial for at least 6 quarterly compliance periods. The system
regularly serves 16 service connections and approx. 70 persons. High
levels of fecal coliform have been detected in several water samples taken
from the water system. Subsequent tests revealed that the coliform
contamination is widespread through the distribution system. Inspections
of the system revealed numerous deficiencies, including inadequate
maintenance of, and failure to continuously use, the chlorination system;
lack of routine upkeep and maintenance of the distribution system; failure
to correct cross-connections in the distribution system; lack of routine
upkeep and maintenance of the wellhead and pumphouse; and a
deteriorating and insufficiently protected water storage tank.
Relief Ordered
Advise all customers of the past year's history of MCL violations and the
presence of fecal coliform in the water supply; meet the MCLs for
coliform bacteria and if this cannot be achieved, provide an alternate
source of approved water for human consumption to all customers; meet
microbiological sampling and analytical requirements; sample and test
twice each month at representative points in the distribution system for
total coliform; sufficiently operate the disinfection/chlorination system.
Order
SDWA § 1431
In re Midwav Heights Countv Water District. No. PWS-AO-86-02.
Region 9
Facts
A public water system receives water from an open, unprotected canal
surface water system that runs for approx. 34 miles before the system's
intake. The system supplies piped water to approx. 220 residences and
630 persons in a 4.5 square mile areas. The canal's watershed includes
numerous contaminating sources, such as septic tanks, animal corrals,
junkyards, a railroad, a freeway, and local roadways. Abundant fecal
material has been observed alongside and near the canal. The system does
not disinfect or filter the water. The water exceeds the MCLs for turbidity
and total coliform and contains high levels of fecal coliform and fecal
streptococci bacteria. Giardia lamblia has been detected in the tap water.
The system has been informed of these contaminants on numerous
occasions, but has failed to control, monitor, or report on the condition of
the water to its customers. Customers have reported a high frequency of
gastrointestinal illnesses.
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Relief Ordered
Mail public notification to every customer; chlorinate to an extent
sufficient to meet the MCLs for microbiological contaminants and to meet
a chlorine residual of at least 0.5 mg/1; monitor coliform and chlorine
residual once per week at 3-5 locations within the distribution system;
make potable bottled water available to all customers; cease connecting
new customers to the distribution system; submit to EPA a list of
customers and their billing addresses; submit an engineering report,
prepared by a registered civil engineer who has experience in water system
design, containing: a characterization of the quality of the incoming raw
water, analysis of the existing water consumption by season attributable to
domestic and agricultural uses, an estimate of future water demands, a
description and costs of alternative methods of producing drinking water,
and a recommendation for a preferred alternative; within 120 days of
EPA's approval of the engineering report and preferred alternative,
complete construction of the preferred alternative.
Order
SDWA § 1431
In re West Stockbridee Water Co.. No. 92-05. Region 1
Facts
Numerous water samples taken over a two month period from a public
water system indicated the presence of both total coliform and fecal
coliform. The system provides piped water for human consumption to
approx. 200 service connection and 1500 individuals. It failed to notify
customers of violations and potential adverse health effects. The system
also failed to monitor and submit 2 monthly turbidity reports.
Relief Ordered
Within 30 days from the effective date of the order, meet the MCLs for
coliform bacteria; if this cannot be achieved, an alternate source of
approved water for human consumption must be provided; meet
microbiological sampling and analytical requirements; sample and test four
times each month at representative points in the distribution system for
total coliform; further test all samples which test positive for any level of
total coliform for the presence of fecal coliform; report positive test results
to EPA; operate the disinfection/chlorination system to meet a chlorination
residual of a least 0.1 mg/1; sample for chlorine residual every week at no
fewer than two representative points; submit results of the chlorine
residual analysis to EPA.
Order
SDWA § 1431
In re Shoshone-Bannock Indian Tribes Fort Hall Indian Reservation. No.
1094-02-17-1431. Region 10
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Facts
Drinking water samples of 4 public water systems on an Indian
Reservation revealed the presence of the pesticide ethylene dibromide
(EDB). EDB is present in the aquifer that underlies the reservation and
that serves as the under ground source of drinking water for reservation
residents. EDB has been found to cause cancer in animals and is a
suspected human carcinogen. EDB has also been found to have a number
of acute neurological effects on humans.
Relief Ordered
The Fort Hall Townsite public water system must immediately cease
supplying water from its primary ground water source; all 4 public water
systems must immediately conduct coordinated public education and
public notification to ensure that reservation residents do not use
contaminated water for drinking or domestic purposes; advise all
customers of the past year's history of MCL violations and of the presence
of EDB and nitrates in the water supply; provide the public notification to
all radio stations, television stations, and newspapers that serve the
reservation; develop plans and schedules to implement Best Management
Practices for agricultural fertilizers and pesticides; provide alternate
sources of water for drinking and other domestic purposes; implement
EPA-approved plan for selection and implementation of water treatment
systems to reduce identified drinking water contaminants to comply with
EPA drinking water standards; implement EPA-approved plan for a
ground water monitoring study to characterize the areal ground water
extent and concentration levels of pesticides and nitrates; sample once a
month for pesticides-and nitrates and have samples analyzed by a certified
laboratory.
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GUIDANCE ON THE USE OF SECTION 7003 OF RCRA
October 1997
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
NOTICE: This document is intended solely as guidance for employees of the U.S. Environmental
Protection Agency. It is not a rule and does not create any legal obligations. Whether and how
EPA applies this guidance in any given case will depend on the facts of the case.
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GUIDANCE ON THE USE OF SECTION 7003 OF RCRA
Table of Contents
I. INTRODUCTION 1
II. CASE SCREENING FACTORS 2
III. RELATIONSHIP OF RCRA § 7003 TO OTHER REQUIREMENTS AND
AUTHORITIES 3
A. Relationship to Other RCRA Requirements 3
B. Relationship to Other Enforcement and Response Authorities 4
1. Comparison of RCRA § 7003 and CERCLA § 106(a) 5
2. Comparison of RCRA § 7003 and RCRA § 3008(h) 7
IV. LEGAL REQUIREMENTS FOR INITIATING ACTION 9
A. Conditions May Present an Imminent and Substantial Endangerment
to Health or the Environment 9
1. The meaning of "may present an imminent and substantial
endangerment" 9
2. Examples of imminent and substantial endangerments II
B. The Potential Endangerment Stems from the Past or Present Handling. Storage-
Treatment. Transportation, or Disposal of Anv Solid or Hazardous Waste ... 12
1. The meaning of "handling, storage, treatment, transportation.
or disposal" 13
2. The meaning of "any solid waste or hazardous waste" 14
3. Examples of solid waste and hazardous waste that could be addressed
under Section 7003 15
C. The Person Has Contributed or Is Contributing to Such Handling. Storage.
Treatment. Transportation, or Disposal 16
1. The meaning of "any person" 16
2. The meaning of "who has contributed or is contributing to
such handling, storage, treatment, transportation, or disposal" 17
3. Strict liability 18
4. Joint and several liability 18
V. ACTIONS AND RESTRAINTS THAT CAN BE REQUIRED 19
A. Interim Measures 19
B. Investigation and Assessment 20
C. Long-Term Cleanup Work 21
D. Controls on Future Operations 21
E. Environmental Restoration 22
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F. Recovery of Government Costs Expended under Section 7003 22
1. Restitution under RCRA 22
2. Cost recovery under CERCLA § 107(a) ..23
VI. RELIEF AVAILABLE 24
A. Choosing Between an Administrative Order and Judicial Action . . 24
B. Administrative Orders 25
1. Choosing between unilateral administrative orders and administrative
orders on consent 26
2. Unilateral administrative orders 27
3. Administrative orders on consent 30
C. Judicial Relief Available 31
D. Judicial Review 32
VII. OTHER REQUIREMENTS AND CONSIDERATIONS 32
A. Notification and Posting 32
1. Notice to the affected state 33
2. Notice to local government agencies/posting 33
B. Public Participation 34
1. Public participation in judicial settlements 34
2. Public participation in administrative settlements 34
3. Other appropriate public participation 35
C. Procedural Considerations 36
1. Administrative record file 36
2. Other procedures for unilateral administrative orders 37
VIII. ENFORCEMENT OF UNILATERAL ADMINISTRATIVE ORDERS AND
ADMINISTRATIVE ORDERS ON CONSENT 38
A. Elements of an Enforcement Action Initiated under Section 7003(b) 38
1. "[A]ny person who" 39
2. "[W]illfully violates, or fails or refuses to comply with any order" 39
3. "[M]ay, in an action brought in the appropriate United States district
court to enforce such order, be fined not more than [$5,500] for each day
in which such violation occurs or such failure to comply continues" ... 39
B. Settling Claims for Civil Penalties under Section 7003(b") 39
1. Overview of the penalty calculation process 40
2. Determination of gravity-based penalty amount 40
3. Penalties for multi-day violations 44
4. Economic benefit of noncompliance 44
5. Adjustment factors 45
6. Penalties for multiple respondents 46
7. Documentation of penalty claims 46
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Attachment 1 -- Delegations, Consultation, and Concurrence
Attachment 2 ~ Comparison of RCRA § 7003 to Other Enforcement and Response Authorities
Attachment 3 -- Possible Sources of Evidence
Attachment 4 — Resources Available
Attachment 5 - Judicial Relief and Judicial Review
Attachment 6 -- Worksheet for Documentation of Penalty Claims
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GUIDANCE ON THE USE OF SECTION 7003 OF RCRA
I. INTRODUCTION
Section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§ 6973, provides the U.S. Environmental Protection Agency (EPA) with broad and effective
enforcement tools that can be used to abate conditions that may present an imminent and
substantial endangerment to health or the environment. Section 7003 allows EPA to address
situations where the handling, storage, treatment, transportation, or disposal of any solid or
hazardous waste may present such an endangerment. In these situations, EPA can initiate judicial
action or issue an administrative order to any person who has contributed or is contributing to
such handling, storage, treatment, transportation, or disposal to require the person to refrain from
those activities or to take any necessary action.
Among its many benefits, Section 7003 provides EPA with a strong and effective means of
furthering risk-based enforcement and implementing its strategy for addressing the worst RCRA
sites first, a strategy which EPA developed in response to its 1990 RCRA Implementation Study.1
Under this strategy, EPA is addressing the universe of waste management facilities on the basis of
environmental priorities. Furthermore, at any given site, EPA is attempting to use whatever legal
authority is best suited to achieving environmental success. Section 7003 provides an invaluable
means for achieving environmental success at many of these sites.
In consultation with EPA regional offices and other headquarters offices, the Office of Site
Remediation Enforcement and the Office of Regulatory Enforcement have developed this
guidance document to assist the regional offices in exercising the Agency's authorities under
RCRA § 7003. In addition to providing practical advice on the use of Section 7003, this
document summarizes significant legal decisions that have addressed Section 7003.2 This
document supersedes (1) the "Final Revised Guidance Memorandum on the Use and Issuance of
Administrative Orders Under Section 7003 of the Resource Conservation and Recovery Act
(RCRA)" which was issued on September 26, 1984 ("1984 Guidance"), and (2) the fact sheet
entitled "The Imminent and Substantial Endangerment Provision of Section 7003," which was
issued by the Office of Site Remediation Enforcement in May 1996.
EPA references RCRA § 7003 in various policy and guidance documents. In light of the
issuance of this guidance, the Region should consult with headquarters regarding the applicability
of any of those documents to particular actions described in this guidance. Before taking any
particular action, the Region should examine Attachment 1 regarding delegations, consultations,
and concurrence.
1 See, e.g., Proposed Rule on Standards Applicable to Owners and Operators of Closed and
Closing Hazardous Waste Management Facilities; Post-Closure Permit Requirement; Closure Process;
State Corrective Action Enforcement Authority, 59 Fed. Reg. 55780 (November 8, 1994).
2 Before considering or taking any action described in this guidance, the Region should determine
whether any new court decisions address any of the issues relevant to the action.
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Section 7003 is available for use in several situations where other enforcement tools may
not be available. For example, Section 7003 can be used at sites and facilities that are not subject
to Subtitle C of RCRA or any other environmental regulation. The Regions are strongly
encouraged to explore the wide range of uses of this authority to compel responsible persons to
abate conditions that may present an imminent and substantial endangerment. At the same time,
the Regions should remember the Agency's goal of prioritizing enforcement actions at sites and
facilities that pose serious risk to health or the environment.
II. CASE SCREENING FACTORS
Subsequent sections of this document discuss the requirements and procedures for
initiating judicial actions and issuing administrative orders under Section 7003. Presented below
in order of generally decreasing importance are factors for the Regions to consider when
determining whether to take either type of action. The Regions should keep in mind that the
importance of any particular factor may vary depending on the facts of a particular case.
• Risk to health or the environment -- When prioritizing actions to be taken under Section
7003, the Regions should give the highest priority to those sites and facilities that pose serious
risks. As part of this analysis, the Regions should give particular consideration to sites and
facilities that pose environmental justice concerns, such as those involving risk aggregation.
• Strength of evidence that all statutory requirements are met -- As a threshold matter, the
Region should not consider initiating action under Section 7003 unless there is adequate evidence
that all requirements of Section 7003(a) have been met (see Section IV below).
• Technical capability of the responsible persons to perform the required actions -- The
Region should assess the technical difficulty of performing the required actions and the likelihood
that the responsible persons will be capable of performing those actions or have adequate
resources to hire a contractor to perform those actions. In rare circumstances, the Region may
conclude that the responsible persons are technically incapable of performing the required actions,
even with careful oversight. In these situations, the Region should consider whether it can use
other authorities to perform the required work and whether other moneys are available, or
whether any other governmental agency has authority and resources to perform the required
actions.
• Financial ability of the responsible persons to perform the required actions -- The Region
should assess whether each responsible person has sufficient financial resources to perform the
required actions. When making this assessment, the Region should remember that some actions,
such as provision of site access or security, require no or relatively few financial resources.
Possible sources of financial information include the following: (1) responses to
information requests issued under any applicable statutory authority; (2) documents compiled
during the RCRA permitting process; (3) information obtained by EPA or state agencies while
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conducting inspections and financial assurance reviews; (4) publicly available information from the
Securities and Exchange Commission, Dun & Bradstreet®, LEXIS-NEXIS®, and other services;
and (5) financial information obtained by the National Enforcement Investigations Center. The
Region may consult a regional, headquarters, or Department of Justice (DOJ) financial analyst
regarding additional services that may be available. Because some financial information may be
subject to claims of confidentiality or privilege, the Region should take appropriate measures
when handling such information.
• Feasibility of Agency oversight -- Based on the technical difficulty of the required actions
and Agency resources available to oversee those actions, the Region should assess whether it will
be able to properly oversee the performance of the required actions, and, if not, whether the state,
tribes, or local government may be able to provide oversight assistance.
• Availability of other authorities and moneys -- The Region should evaluate whether
statutory authorities other than RCRA § 7003 are available to require the same actions by the
responsible persons (see Section III below and Attachment 2), whether funds are available to use
those alternative authorities, and whether it would be more appropriate to use an alternative
authority. Lack of availability of Superfund, Oil Spill Fund, Leaking Underground Storage Tank
Fund, and other moneys is a factor that supports the use of Section 7003.
III. RELATIONSHIP OF RCRA § 7003 TO OTHER REQUIREMENTS AND
AUTHORITIES
A. Relationship to Other RCRA Requirements
By beginning Section 7003 with the language "notwithstanding any other provision of this
chapter," Congress indicated its intent to create "a broadly applicable section dealing with the
concerns addressed by the statute as a whole."3 Section 7003 can therefore be used to address
potential endangerments that may be presented by solid or hazardous waste even if the persons or
activities causing the potential endangerment are not subject to any other provision of RCRA or
other environmental law.4 Section 7003 can also be used to address potential endangerments
caused by persons or facilities that are in compliance with a regulation or permit issued pursuant
to RCRA.5 Thus, a permit holder may not assert a "permit as shield" defense under Section 7003
(i.e., the holder cannot claim that he or she is protected from liability for problems resulting from
activities covered by a permit). Nonetheless, when a permit provides for corrective action under
RCRA § 3004(u) or (v), 42 U.S.C. § 6924(u) or (v), or other measures under RCRA
§ 3005(c)(3), 42 U.S.C. § 6925(c)(3), or for other activities that may be necessary to abate a
potential endangerment, the Region should consider requiring the necessary activities using its
3 United States v. Waste Industries, Inc., 734 F.2d 159, 164 (4th Cir. 1984).
4 See id.
5 See Greenpeace v. Waste Technologies Industries, 37 ERC 1736, 1740 (N.D. Ohio 1993).
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permit authorities before it exercises its authorities under Section 7003. In the event that these
permit authorities are inadequate (for example, because they do not allow EPA to address the
particular material present at the site or facility), cannot be used to address the potential
endangerment in a timely manner, or are otherwise inappropriate for the potential endangerment
at issue, the Region should then consider using the tools available under Section 7003.
Furthermore, actions under Section 7003 are not subject to requirements contained in
other RCRA provisions.6 For example, it is not necessary for EPA to (1) comply with the
provisions of Section 3008 of RCRA, 42 U.S.C. § 6928, requiring notice to authorized states,7 or
(2) exhaust its administrative remedies under that section before initiating an action under Section
7003.8 Further, persons complying with a RCRA § 7003 order under EPA's direction may treat,
store, or dispose of waste without securing a RCRA permit for the actions required by that
order.9
B. Relationship to Other Enforcement and Response Authorities
Some elements of Section 7003 are similar to elements of other statutory provisions that
allow EPA to address potential endangerments and to respond to the release of materials that may
harm human health or the environment. Attachment 2 is a chart which summarizes the general
purpose, triggering activity, materials and persons covered, and response authority contained in
the following provisions: Sections 7003(a), 3008(h), 3013, and 9003(h) of RCRA, 42 U.S.C. §§
6973(a), 6928(h), 6934, and 6991 b(h); Sections 104(a) and 106(a) of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9604(a) and
9606(a); Sections 311(c) and (e) and 504 of the Clean Water Act (CWA), 33 U.S.C. §§ 1321(c)
and (e) and 1364; Section 1431 of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300i; and
Section 303 of the Clean Air Act (CAA), 42 U.S.C. § 7603. The Regions are encouraged to use
the chart when considering which enforcement authorities might be appropriate for the situations
they encounter. In many cases, it may be appropriate for the Regions to use a combination of
these authorities.
If there are serious violations of environmental law or regulations at a facility or site being
evaluated for action under RCRA § 7003, the Regions should also consider the possibility of
criminal action against the responsible person. When considering whether to initiate action under
6 United States v. Conservation Chemical Co , 619 F. Supp. 162, 212 (W.D Mo. 1985).
7 Note that Section V1I.A below explains the notice requirements of Section 7003.
8 Conservation Chemical, 619 F. Supp. at 212.
9 For further guidance, see Memorandum, "RCRA Permit Requirements for State Superfund
Actions" (OSWER Policy Directive #9522.00-2, November 16, 1987), which discusses the waiver of
permit requirements for RCRA § 7003 actions based on the '"notwithstanding any other provision of this
Act" clause of RCRA § 7003. The guidance also discusses permit waivers by states with authority similar
to RCRA § 7003.
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Section 7003 when there is an ongoing criminal investigation or prosecution against the same
person concerning the same or a related matter, the Regions should consult the June 22, 1994
memorandum from Steven A. Herman entitled "Parallel Proceedings Policy" and the applicable
DOJ parallel proceedings policy.
RCRA § 7003(a) is also similar in some respects to the citizen suit provision set forth in
RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). That provision allows any person, including
any state, to initiate a civil action against any person who has contributed or is contributing to
certain activities which may present an imminent and substantial endangerment to health or the
environment. Because Section 7002(a)(1)(B) contains an endangerment standard and many terms
that are identical to those used in Section 7003(a), some court decisions addressing Section
7002(a)(1)(B) may assist the Regions in interpreting Section 7003.'°
It is EPA's position, and at least one court agrees, that EPA may take action under
Section 7003 even if the government is simultaneously talcing action against the defendant under
CERCLA." The Regions may therefore use Section 7003 either independently or as a
supplement to actions taken under CERCLA or other statutes.
In practice, the Regions may find that they sometimes need to choose between using
Section 7003 over CERCLA § 106(a) or RCRA § 3008(h). The following discussion describes
when to consider using RCRA § 7003 instead of those two authorities.
1. Comparison of RCRA § 7003 and CERCLA § 106(a)
Under CERCLA § 106(a), EPA may initiate a judicial action or issue an administrative
order when there may be an imminent and substantial endangerment because of an actual or
threatened release of a "hazardous substance."
a. Advantages of RCRA $ 7003
The Regions may consider using RCRA § 7003 instead of CERCLA § 106(a) in order to:
• Address potential endangerments caused bv materials that meet RCRA's statutory
definition of "solid waste" but are not "hazardous substances" under CERCLA -- The
definition of "hazardous substance" in Section 101(14) of CERCLA, 42 U.S.C.
§ 9601(14), does not include all materials that qualify as "solid waste" under RCRA
10 See, e.g., Connecticut Coastal Fishermen's Ass 'n v. Remington Arms Co., 989 F.2d 1305 (2d
Cir. 1993), rev'd in part on other grounds, 505 U.S. 557 (1992); Dague v. City of Burlington ("Dague
//"), 935 F.2d 1343 (2d Cir. 1991); Lincoln Properties v. Higgins, 23 Envtl. L. Rep. (Envtl. L. Inst.)
20665 (E.D. Cal. Jan. 18, 1993).
" See, e.g., United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1111 (D. Minn.
1982).
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§ 1004(27), 42 U.S.C. § 6903(27). Note, however, that the CERCLA definition of
"hazardous substances" does encompass some materials, such as radionuclides, which are
not "solid waste" under RCRA.
• Address potential endangerments caused by "hazardous waste" that meets the broad
definition of that term under Section 1004(5) of RCRA. 42 U.S.C. S 6903C5). but which is
not a CERCLA "hazardous substance" because it fails to meet the more narrow definitions
of "hazardous waste" promulgated in 40 C.F.R. Part 261 pursuant to RCRA $ 3001 --
CERCLA's definition of "hazardous substance" includes "hazardous waste" having
characteristics identified under or listed pursuant to Section 3001 of RCRA, 42 U.S.C. §
6921. It does not include all materials that qualify as "hazardous waste" as defined in
RCRA § 1004(5).
• Address potential endangerments caused by petroleum -- Petroleum is excluded from the
definition of "hazardous substance" in CERCLA § 101(14), but not from the definitions of
"solid waste" under RCRA § 1004(27) or "hazardous waste" under RCRA § 1004(5).
The courts have consistently held that a spill or release of a petroleum substance is a solid
waste because the material is discarded.12 In addition, at least one court has recognized
that shipments of oil to reclaimers may render the material "discarded" if the person
sending the oil intended to get rid of it.13
• Enter into an administrative order on consent (AOQ requiring long-term cleanup work --
As provided in CERCLA § 122(d)(1)(A), 42 U.S.C. § 9622(d)(1)(A), each agreement
requiring remedial action under CERCLA § 106 must be in the form of a judicial consent
decree. RCRA is more flexible and allows in appropriate circumstances for the use of
AOCs for long-term cleanup work. Nonetheless, there are also advantages to using
consent decrees, including recourse to the court's contempt powers in the event of
noncompliance.
b. Advantages of CERCLA $ 106Ca~)
Particularly when issuing orders to persons who are unlikely to comply, the Regions may
consider using CERCLA § 106(a) instead of or in addition to RCRA § 7003 in order to:
• Seek higher civil penalties — Under CERCLA § 106(b), EPA may seek penalties of up to
527,500 for each day of failure to comply with an order issued under CERCLA § 106(a).
12 Zands v. Nelson, 779 F. Supp. 1254, 1262 (S.D. Cal. 1991); Paper Recycling, Inc. v.
Amoco Oil Co., 856 F. Supp. 671, 675 (N.D. Ga. 1993); Craig Lyle Limited Partnership v Land
O'Lakes, Inc., 877 F. Supp. 476, 482 (D.Minn. 1995); Agricultural Excess & Surplus Insurance
Co. v. A.B.D Tank& Pump Co., 878 F. Supp. 1091, 1095 (N.D. 111. 1995); Dydio v. Hesston
Corp., 887 F. Supp. 1037 (N.D. 111. 1995).
13 United States v. Valentine ("Valentine IIF), 885 F. Supp. 1506, 1513-14 (D. Wyo. 1995).
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Under Section 7003(b), EPA may seek penalties of up to $5,500 for each day for violation
of an order issued under Section 7003(a).u Issuing an order under CERCLA § 106(a)
may therefore provide greater incentive for the respondent to comply.
• Seek punitive damages -- CERCLA § 106(a) provides for damages of up to three times
the amount of Fund moneys expended as a result of the person's failure to comply with an
order issued under CERCLA § 106(a). Because RCRA contains no similar punitive
damages provision, CERCLA may provide greater incentive for the respondent to comply.
• Have access to Fund financing and other resources available under CERCLA -- When
proceeding under CERCLA, the Regions may have access to additional staff, oversight,
and contractor resources, as well as Fund financing, if needed.
• Avoid disputes over the timing and scope of ludicial review -- CERCLA contains an
express bar against pre-enforcement review and expressly provides for record review of
remedy decisions. It is EPA's position, consistent with applicable principles of law, that
orders issued under RCRA § 7003 are not subject to pre-enforcement review, and that in
an enforcement action under Section 7003, the scope of judicial review of such orders is
limited to the administrative record. However, because CERCLA contains express
statutory provisions addressing these issues, these issues are less likely to be disputed
under CERCLA than under RCRA § 7003.
2. Comparison of RCRA $ 7003 and RCRA S 3008011
RCRA § 3008(h) allows EPA to require corrective action to address the release of
hazardous waste and hazardous constituents at any treatment, storage, or disposal (TSD) facility
authorized to operate under interim status pursuant to Section 3005(e) of RCRA, 42 U.S.C.
§ 6925(e). EPA interprets the term "authorized to operate" to include facilities that have or
should have had interim status, as well as some facilities that had interim status at one time but no
longer do.15
14 Pursuant to EPA's Civil Monetary Penalty Inflation Adjustment Rule (implementing the Debt
Collection Improvement Act of 1996 and codified at 40 C.F.R. Part 19), EPA adjusted for inflation the
maximum civil monetary penalties that can be imposed pursuant to the Agency's statutes. For violations
occurring after January 30, 1997, the maximum penalty amounts under CERCLA § 106(b) and RCRA
§ 7003(b) are S27,500 and $5,500, respectively. For violations occurring on or before January 30, 1997,
the maximum penalty amounts under these sections are $25,000 and $5,000, respectively.
15 See United States v. Environmental Waste Control, Inc., 917 F.2d 327 (7th Cir. 1990), cert,
denied 499 U.S. 975 (1991) (affirming that facility that lost interim status is liable for corrective action
under RCRA § 3008(h)); United States v. Indiana Woodtreating Corp., 686 F. Supp. 218, 223-24 (S.D.
Ind. 1988) (holding an unpermitted facility that never obtained interim status liable for corrective action).
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a. Advantages of RCRA § 7003
The Regions may consider using RCRA § 7003 instead of RCRA § 3008(h) in order to:
Address potential endangerments caused by "solid waste" that meets the definition of that
term under Section 1004(27') of RCRA. but which does not meet the definition of
"hazardous waste" under RCRA § 1004(5') and is not a hazardous constituent -- RCRA
§ 3008(h) does not apply to the release of "solid waste" that is not a hazardous waste or a
hazardous constituent. RCRA § 3008(h) applies to the release of "hazardous waste,"
which EPA and courts interpret to include the release of hazardous constituents listed by
EPA in Appendix VIII of 40 C.F.R. Part 261.16
Address potential endangerments at locations other than TSD facilities --
RCRA § 3008(h) may only be used to address releases from TSD facilities. RCRA § 7003
imposes no locational limitations.
Address potential endangerments caused by generators at facilities that are not subject to
RCRA's interim status provisions, or where interim status is in question — EPA interprets
RCRA § 3008(h) to apply to releases from TSD facilities that have or should have had
interim status, as well as from some TSD facilities that had interim status at one time but
no longer do. However, one court has held that EPA cannot use RCRA § 3008(h) to
obtain corrective action at facilities that never had interim status (i.e.. "illegal
operators").17
More expeditiously address potential endangerments due to fewer procedural
requirements -- 40 C.F.R. Part 24 establishes procedures for issuing corrective action
orders under RCRA § 3008(h) and for administrative hearings on those orders. 40 C.F.R.
Part 22 sets forth administrative hearing requirements that apply to certain orders issued
under RCRA § 3008(h) and to which 40 C.F.R. Part 24 does not apply. Because RCRA
§ 7003 is designed to address conditions that may present an imminent and substantial
endangerment, it contains fewer procedural requirements than either Section 3008(h),
under which EPA may address releases of hazardous wastes that may not rise to the level
of presenting an imminent and substantial endangerment, or Section 3008(a), under which
EPA may seek penalties for regulatory violations. Therefore, neither the Part 22 nor the
Part 24 regulations apply to orders issued under RCRA § 7003. Nevertheless, recipients
of Section 7003 orders are provided due process by the opportunity to confer with EPA
16 United States v. Environmental Waste Control, Inc.. 710 F. Supp. 1172, 1226 (N.D. Ind.
1989); Indiana Woodtreating, 686 F. Supp. at 223-24; United States v. Clow Water Systems, 701
F Supp. 1345, 1356 (S D. Ohio 1988); "Interpretation of Section 3008(h) of the Solid Waste Disposal
Act," Porter and Price (December 16, 1985).
17 See United States v. Hawaiian Western Steel. Ltd., Civ. No. 92-00587 ACK, at 31 n 6 (D. Hi.
May 16, 1996); cf. cases cited in n. 15, above.
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regarding the order and subsequent review by a court if an action is brought to enforce the
order.
b. Advantages of RCRA S 3008(111
The Regions may consider using RCRA § 3008(h) instead of RCRA § 7003 in order to:
• Address releases of hazardous waste or hazardous constituents without a finding that
conditions mav present an imminent and substantial endaneerment — Because RCRA
§ 3008(h) does not require such a finding, the Regions may consider using RCRA
§ 3008(h) instead of RCRA § 7003 when they have insufficient resources to determine
whether conditions may present an imminent and substantial endangerment or where there
is insufficient evidence that conditions may present such an endangerment.
• Seek civil penalties of up to $27.500 for each day for violation of an order issued under
RCRA § 3008(h) -- As noted above, penalties under Section 7003(b) are limited to $5,500
for each day for violation of an order issued under Section 7003(a).'8 Issuing an order
under RCRA § 3008(h) may therefore provide greater incentive for the respondent to
comply.
IV. LEGAL REQUIREMENTS FOR INITIATING ACTION
The three basic requirements for initiating action against a particular person under Section
7003 are the following: (1) conditions may present an imminent and substantial endangerment to
health or the environment; (2) the potential endangerment stems from the past or present
handling, storage, treatment, transportation, or disposal of any solid or hazardous waste; and (3)
the person has contributed or is contributing to such handling, storage, treatment, transportation,
or disposal.19 The following discussion includes definitions of key terms and summaries of
significant case law on Section 7003. Attachment 3 lists possible sources of evidence related to
the three requirements.
A. Conditions Mav Present an Imminent and Substantial Endangerment to Health or
the Environment
1. The meaning of "mav present an imminent and substantial endangerment"
Demonstrating the existence of conditions that may present an imminent and substantial
endangerment to health or the environment generally requires careful documentation and scientific
18 For violations occurring on or before January 30, 1997, the maximum penalty amount under
RCRA § 3008(h) is $25,000. See n. 14, above.
19 See, e.g., United States v. Bliss, 667 F. Supp. 1298, 1313 (E.D. Mo. 1987).
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evidence. However, courts have repeatedly recognized that the endangerment standard of RCRA
§ 7003 is quite broad.20 Courts interpreting the "imminent and substantial endangerment"
provision of Section 7003 have found:
• An "endangerment" is an actual, threatened, or potential harm to health or the
environment.2' As underscored by the words "may present" in the endangerment standard
of Section 7003, neither certainty nor proof of actual harm is required, only a risk of
harm.22 Moreover, neither a release nor threatened release, as those terms are used in
CERCLA, is required.23 No proof of off-site migration is required if there is proof that the
wastes, in place, may present an imminent and substantial endangerment.24
• An endangerment is "imminent" if the present conditions indicate that there may be a
future risk to health or the environment25 even though the harm may not be realized for
years.26 It is not necessary for the endangerment to be immediate27 or tantamount to an
emergency.28
20 See, eg, United States v Valentine ("Valentine /"), 856 F. Supp. 621, 626 (D. Wyo 1994)
21 See, e.g., Valentine I, 856 F. Supp. at 626; Waste Industries, 734 F.2d at 165
22 See, e.g., Dagite //, 935 F.2d at 1356.
23 United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1382 (8th Cir. 1989).
24 Valentine /, 856 F. Supp. at 626-27.
25 See, e.g., Dague II, 935 F.2d at 1356; Fairway Shoppes Joint Venture v. Dryclean U.S.A. of
Florida, No. 95-8521-CIV-HURLEY (S.D. Fla. Aug. 2, 1996) (affirming a magistrate's finding that "[a]
plume of toxic contaminants migrating toward a source of potable water supply... unquestionably meets the
'imminent and substantial endangerment' standard of RCRA."); Morris v. Primetime Stores of Kansas,
Inc., No. 95-1328-JTM (D. Kan. Sept. 5, 1996) (denying a motion to dismiss RCRA § 7002 claim because
there was "no indication the Morris house is safe for human occupation").
26 Valentine I, 856 F. Supp. at 626; Conservation Chemical, 619 F. Supp. at 194. However, one
court has held, in the context of a motion to dismiss, "[i]f the waste is trapped or contained in such a way
that exposure (and harm) is foreclosed.. . it could not then be considered an imminent endangerment to
health," Davies v. Nat'I Cooperative Refinery Ass'n, No. 96-1124-WEB (D. Kan. July 12, 1996)
27 See. e.g., Dague II, 935 F.2d at 1356.
28 See, e.g., Waste Industries, 734 F.2d at 165; Valentine I, 856 F. Supp. at 626.
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• An endangerment is "substantial" if there is reasonable cause for concern that health or the
environment may be seriously harmed.29 It is not necessary that the risk be quantified.30
Because conditions vary dramatically from site to site, there is no comprehensive list of
factors that EPA should consider when determining whether conditions may present an imminent
and substantial endangerment. In some cases, the potential endangerment may be immediately
apparent; in others, the risks may be less readily identified. Some of the factors that the Regions
may consider as appropriate are: (1) the levels of contaminants in various media; (2) the existence
of a connection between the solid or hazardous waste and air, soil, groundwater, or surface water;
(3) the pathway(s) of exposure from the solid or hazardous waste to the receptor population; (4)
the sensitivity of the receptor population; (5) bioaccumulation in living organisms; (6) visual signs
of stress on vegetation;31 (7) evidence of wildlife mortalities, injuries, or disease;32 (8) a history of
releases at the facility or site; (9) staining of the ground; and (10) "missing" (i.e , unaccounted
for) solid or hazardous waste. It is important to note, however, that in any given case, one or two
factors may be so predominant as to be determinative of the issue.33
Attachment 4 contains a list of documents that may assist the Regions in assessing
whether conditions may present an imminent and substantial endangerment. When assessing
ecological impacts, the Regions may consider consulting the U.S. Fish and Wildlife Service and
the National Oceanic and Atmospheric Administration, as well as state, local, and tribal agencies.
Depending on allocation of regional RCRA and CERCLA resources, the Regions may also
consult their Regional Biological Technical Assistance Groups.
2. Examples of imminent and substantial endaneerments
The following are some examples of situations where courts have determined that
conditions may have presented an imminent and substantial endangerment under RCRA:
• At a shooting range where lead from lead shot had accumulated in the tissues of nearby
waterfowl and shellfish.34
29 See, e.g., Conservation Chemical, 619 F. Supp. at 194; Leister v. Black & Decker Inc., No. 96-
1751 (4th Cir. July 8, 1997) (holding that a waste must pose "a current serious threat of harm" for an
endangerment to be substantial).
30 Conservation Chemical, 619 F. Supp. at 194.
31 See, e.g., Dague v. City of Burlington ("Dague /"), 732 F. Supp. 458, 468 (D. Vt. 1989).
32 Valentine I, 856 F. Supp. at 624-25.
33 Conservation Chemical, 619 F. Supp. at 194.
34 Connecticut Coastal, 989 F.2d at 1317.
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• At a facility containing several open, unlined pits of oily waste and where oily waste
containing hazardous constituents had leaked from tanks into surrounding soils.35 EPA
documented the death of several animals and introduced evidence from the U.S. Fish and
Wildlife Service indicating that there was a continuing threat to migratory birds and other
wildlife. In addition, access to the site was unrestricted and there was limited information
available regarding the migration of oily wastes within the site and off-site.
• At a municipal landfill that had leaked at least 10% of its leachate containing low levels of
lead into an adjacent wetland.36 Lead levels in test wells surrounding the landfill were
generally below the maximum contaminant levels (MCLs) for drinking water, and no
actual harm was shown to the wetland.37 However, the court found an imminent and
substantial endangerment because the leachate contained toxic constituents, lead had
bioaccumulated in the wetland, and some of the chemicals "which continue to migrate
from the landfill, may have a dramatic adverse impact on the food chain" in the area of the
site.38
• At a shopping center where dry cleaning solvents discharged from dry cleaning facilities
had contaminated groundwater in a populated area.39 Contaminant levels in the migrating
plume exceeded MCLs. Although some area wells had been closed at least in part because
of the contaminated plume, the court found that the conditions may have presented an
imminent and substantial endangerment to the environment, but not necessarily to human
health.
B. The Potential Endangerment Stems from the Past or Present Handling. Storage-
Treatment. Transportation, or Disposal of Anv Solid or Hazardous Waste
As clarified by the 1984 amendments to RCRA, Section 7003 is generally intended to
abate conditions resulting from past or present activities.40 Because EPA need only show that one
type of activity listed in Section 7003 has occurred or is occurring, the Regions should consider
alleging and showing that the potential endangerment stems from past or present "handling," the
broadest of the five categories.
35 Valentine /, 856 F. Supp. at 624-25.
36 Dagiie II, 935 F.2d at 1356.
37 Dague I, 732 F. Supp. at 463, 469.
38 Dague II, 935 F.2d at 1355-56.
39 Lincoln Properties, 23 Envtl. L. Rep. at 20671-72.
40 H.R. Rep. No. 1 133, 98th Cong., 2d Sess. 119 (1984).
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1. The meaning of "handling, storage, treatment, transportation, or disposal"
a. "Handling"
The statute does not define "handling." EPA agrees with at least one court that has
applied a dictionary definition of "handle" as "to deal with or have responsibility" for something.41
One example of an activity that a court has determined to constitute "handling" under RCRA is
using mercury during manufacturing and failing to provide adequate safety measures for
employees.42
b. "Storage"
When assessing whether particular activities may constitute "storage" of solid waste or
hazardous waste under Section 7003, the Regions should apply the definition set forth in RCRA
§ 1004(33), 42 U.S.C. § 6903(33). Although that definition refers to hazardous waste only, the
Regions may apply an analogous definition when addressing the possible storage of solid waste.
c. "Treatment"
The statutory definition of "treatment" refers to hazardous waste but not solid waste.
Thus, when assessing whether particular activities may constitute "treatment" of hazardous waste
under Section 7003, the Regions should apply the definition set forth in RCRA § 1004(34), 42
U.S.C. § 6903(34).43 EPA does not agree with courts that have interpreted that definition to
require that a process change the character of the waste as defined in RCRA and be purposefully
designed to have that effect.44 When assessing whether particular activities may constitute
"treatment" of solid waste under Section 7003, the Regions may apply the following definition,
which is based on the statutory definition of "treatment": any method, technique, or process
objectively designed to change the physical, chemical, or biological character or composition of
any solid waste so as to render it safer for transport, amenable for recovery, amenable for storage,
or reduced in volume.
41 Lincoln Properties, 23 Envtl. L. Rep. at 20672.
42 State of Vermont v. Staco, Inc., 684 F. Supp. 822, 836 (D. Vt. 1988).
43 See, e.g, United States v. Ottati & Goss, 630 F. Supp. 1361, 1393-94 (D.N.H. 1985);
Connecticut Coastal, 989 F.2d at 1315-16.
44 See United States, v. Great Lakes Castings Corp., 1994 U.S. Dist. LEXIS 5745 at 13-15 (W.D.
Mich. 1994) {citing Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741, 753-54 (D.C.
Cir. 1992) and holding that the dewatering of sludge did not constitute "treatment" because there was no
intent to alter the character of the waste); but see United States v. Pesses, 794 F. Supp. 151, 157 (W.D.
Pa. 1992) (broadly interpreting the term "treatment" in RCRA, which is incorporated by reference in
CERCLA § 101(29)).
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d. "Transportation"
The statute does not define "transportation." However, the RCRA regulations include the
following definition of "transportation" at 40 C.F.R. § 260.10: "the movement of hazardous
waste by air, rail, highway, or water." Again, although this regulatory definition refers to
hazardous waste only, the Regions may apply an analogous definition when addressing the
transportation of solid waste.
e. "Disposal"
When assessing whether particular activities may constitute "disposal" under Section
7003, the Regions should apply the definition set forth in RCRA § 1004(3), 42 U.S.C. § 6903(3).
EPA and the majority of courts maintain that the leaking of waste satisfies that definition.45 It is
EPA's interpretation that the reference to "disposal" in Section 7003 therefore applies to passive
contamination46 and both intentional and unintentional disposal practices.47
2. The meaning of "any solid waste or hazardous waste"
The RCRA statute and regulations contain two different sets of definitions of "solid
waste" and "hazardous waste." The regulatory definitions set forth in 40 C.F.R. Part 261 identify
materials that are subject to regulation under Subtitle C of RCRA. It is EPA's position, and at
least two courts have recognized, that the broad statutory definitions, not the regulatory
definitions, govern in Section 7003 actions.48
45 See, e.g., Waste Industries, 734 F.2d at 164-65; Acme Printing Ink Co v. Hartford Accident
Indemnity Co , 812 F. Supp. 1498, 1512 (E.D. Wis. 1992); Jones v. Inmont Corp , 584 F Supp. 1425,
1436 (S.D. Ohio 1984); United States v. Price {"Price /"), 523 F Supp. 1055, 1071 (D.N.J. 1981).
46 Price I, 523 F. Supp. at 1071; see also, Connecticut Coastal, 989 F.2d at 1314. This definition
of disposal that includes passive disposal should not be confused with the definition of "disposal facility"
for permitting purposes, which requires intentional placement into or on any land or water. See 40 C F.R.
§ 260.10. It is also distinct from the definition of "land disposal" for purposes of application of the Part
268 land disposal restrictions (LDRs). 40 C.F.R. § 268.2 defines "land disposal" for LDRs to require
placement in or on the land. Because CERCLA § 101(29) incorporates by reference the definition of
"disposal" in RCRA § 1004(3), a significant number of CERCLA cases have interpreted the RCRA
definition. See, e.g., HRWSystems, Inc. v. Washington Gas Light Co., 823 F. Supp. 318, 339 (D. Md.
1993); accord Redwing Carriers v. Saraland Apartments, 94 F.3d 1489 (11th Cir. 1996); Tanglewood
East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572-73 (5th Cir. 1988); but see, e.g.. United
States v. CDMG Realty Co., 96 F.3d 706 (3d Cir. 1996).
47 United States v. Northeastern Pharmaceutical and Chemical Co. (NEPACCO), 810 F.2d 726,
740 n.5 (8th Cir. 1986), quoting H.R. Rep. No. 198 (Part 1), 98th Cong., 2d Sess. 47-49 (1983), cert,
denied, 484 U.S. 848 (1987).
48 See, e.g., Valentine /, 856 F. Supp. at 627 (citing 40 C.F.R. § 261.1 (b)(2)); Connecticut
Coastal, 989 F.2d at 1314-15.
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The broadest category of RCRA waste is "solid waste" as defined in RCRA § 1004(27).
"Hazardous waste" as defined in RCRA § 1004(5) is a very large subset of statutory solid waste.
"Hazardous waste" as defined in 40 C.F.R. § 261.3 is in turn a fairly large subset of statutory
hazardous waste, as well as a subset of "solid waste" as defined in 40 C.F.R. § 261.2. Thus,
when determining whether a particular material is a solid waste or hazardous waste for purposes
of Section 7003, the Region may be able to readily determine whether the material is a "solid
waste" under 40 C.F.R. § 261.2 and also a "hazardous waste" under 40 C.F.R. § 261.3. If the
material meets those definitions, then the analysis is complete and the material is a "hazardous
waste."49
If the material is not a regulatory solid waste and hazardous waste or if it would require
too much time or too many resources to determine whether it is, the Region should determine
whether the material is a "solid waste" under RCRA § 1004(27) or a "hazardous waste" under
RCRA § 1004(5), taking particular care to examine whether the material is excluded from the
definition of "solid waste"50 and consulting the Office of General Counsel and relevant case law as
appropriate. If the material meets either of those definitions, then the analysis is complete and the
material is a "solid waste" or "hazardous waste," as appropriate, for purposes of Section 7003.
3. Examples of solid waste and hazardous waste that could be addressed
under Section 7003
Some of the many types of solid waste and hazardous waste that can be addressed under
Section 7003 include: (1) hazardous waste that is spilled at facilities where such waste is
generated but which are not required to be permitted under Subtitle C of RCRA and which do not
have, never had, nor were required to have, interim status under Section 3005(e) of RCRA;
(2) solid or hazardous waste that is spilled during transport; (3) solid or hazardous waste that is
released from TSD units; (4) hazardous constituents in or from solid waste or hazardous waste;
(5) gasoline that has leaked from tanks at gasoline stations;51 (6) expended lead shot, spent
rounds, and target fragments located in and around shooting ranges;52 (7) waste materials found at
slaughterhouses; (8) biological and chemical munitions waste; (9) waste oil and oil pit skimmings
that are below marketable petroleum grade and sent to an oil reclaimer;53 (10) medical waste; (11)
discarded material produced during pharmaceutical processes; (12) dioxin emissions from solid
waste incinerators; (13) wastes containing radioactive materials (i.e., radionuclides that are not
exempt from the statutory definition of "solid waste"); (14) with the exception of materials listed
49 40 C.F.R. § 261.1(b)(2).
50 For example, the definition of "solid waste" under Section 1004(27) specifically excludes
industrial discharges which are point sources subject to permits under the National Pollutant Discharge
Elimination System of the Clean Water Act, 33 U.S.C. § 1432.
51 Zands, 779 F. Supp. at 1262.
52 Connecticut Coastal, 989 F.2d at 1316-17.
53 Valentine III, 885 F. Supp. at 1513-14.
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in 40 C.F.R. §§ 261.4(a)(l)-(4) (/' e., materials excluded from the statutory definition of "solid
waste"), the wide variety of materials that are otherwise excluded from Subtitle C regulation
under 40 C.F.R. § 261.4; (15) drilling fluids, produced waters, and other wastes associated with
the exploration, development, or production of crude oil or natural gas ("Bentsen wastes"),
exempted from regulation as hazardous waste under RCRA § 3001(b)(2)(A); (16) fly ash, bottom
ash waste, slag waste, and flue gas emission control waste generated from the combustion of
fossil fuels, wastes from the extraction, beneficiation, and processing of ores and minerals, and
cement kiln dust waste ("Bevill wastes"), exempted from regulation as hazardous wastes under
RCRA § 3001(b)(3)(A); and (17) piles of scrap tires.
C. The Person Has Contributed to Such Handling. Storage. Treatment.
Transportation, or Disposal
1. The meaning of "any person"
Section 7003 specifies that "any person" includes any past or present generator, past or
present transporter, or past or present owner or operator of a TSD facility.54 Section 1004(15) of
RCRA defines "person" as including an individual, corporation, and political subdivision of a
state, as well as each department, agency, and instrumentality of the United States.
The definition of "person" does not exclude corporate officers or employees. With
respect to corporate officer liability, EPA's position, which has been adopted by at least one
court, is that it is not necessary to "pierce the corporate veil" in order to find individual corporate
officer liability (i.e., corporate officers are not immune from personal liability for corporate
activities).55 Thus, a corporate officer who is either personally involved in actual company
decisions regarding the handling of solid or hazardous wastes, or in charge of and directly
responsible for a company's operations with the ultimate authority to control the disposal of such
wastes, can be held individually liable under Section 7003 as a contributor to the handling,
storage, treatment, transportation, or disposal of a solid or hazardous waste.56
54 The 1984 Guidance included a detailed discussion of the application of Section 7003 to past,
non-negligent, off-site generators. The 1984 amendments to RCRA clarified that the term "any person"
includes any past or present generator, transporter, or owner or operator of a TSD facility. Furthermore,
the legislative history of those amendments notes that "[Section 7003] has always reached those persons
who have contributed in the past or are presently contributing to the endangerment, including but not
limited to generators, regardless of fault or negligence." H.R. Rep. No. 1133, 98th Cong., 2d Sess., 130
Cong. Reg. H. 11137 (October 3, 1984).
55 NEPACCO, 810 F.2d at 745.
56 Id. The Regions may also find it helpful to consult cases brought under RCRA § 3008(a) that
have discussed this issue. See, e.g., United States v. Production Plated Plastics, Inc., 742 F. Supp. 956
(W.D. Mich. 1990); United States v. Conservation Chemical Co. of Illinois, 733 F. Supp. 1215 (N.D.
Ind. 1989).
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With respect to employee liability, EPA agrees with at least one court that has held that an
employee of a corporation can be subject to individual liability under Section 7003 if he or she had
the authority to control and in fact undertook responsibility for waste disposal procedures.57
However, under RCRA § 6001, 42 U.S.C. § 6961, Congress specifically excluded any federal
employee from personal liability for any civil penalty with respect to any act or omission within
the scope of his or her official duties.
2. The meaning of "who has contributed or is contributing to such handling-
storage. treatment, transportation, or disposal"
Congress intended that the phrase "has contributed to or is contributing to" be broadly
construed.58 Section 7003 therefore imposes strict liability upon persons who have contributed or
are contributing to activities that may present an endangerment, regardless of fault or
negligence.59
EPA agrees with one circuit court that has stated that the plain meaning of "contributing
to" is "to have a share in any act or effect."60 It is not necessary for EPA to prove that the person
had control over the activities that may create an imminent and substantial endangerment.61 For
example, one court has held that a person contributed to the handling and disposal of pesticide-
related wastes because that person had (1) contracted with a company that formulates commercial
grade pesticides through a process that inherently involves the generation of wastes, and (2)
maintained ownership of those pesticides throughout the process.62
As indicated in Section 7003, a transporter is considered a contributor to waste
management that takes place after the waste has left the possession or control of such transporter
unless the transporter (1) was under a sole contractual arrangement arising from a published tariff
and acceptance for carriage by common carrier by rail, and (2) has exercised due care in the
management of such waste. In contrast to CERCLA § 107(a)(4), 42 U.S.C. § 9607(a)(4), it is
not necessary for the transporter to have actually selected the site or disposal facility.63
57 Acme Printing Ink Co. v Menard, Inc., 870 F. Supp. 1465, 1491 (E.D. Wis. 1994).
58 H.R. Rep. No. 1133, 98th Cong., 2d Sess. (October 3, \ 984), Aceto, 872 F.2d at 1383; Price /,
523 F. Supp. at 1073.
59 See, e.g., H.R. Rep. No. 1133, 98th Cong., 2d Sess. (October 3, 1984); Aceto, 872 F.2d at
1377.
60 Aceto, 872 F.2d at 1384, quoting Webster's Third New International Dictionary 496 (1961).
61 Id. at 1383, accord Valentine HI, 885 F. Supp. at 1512 (finding transporter liable even though
he had no authority to control handling of the material at the site).
62 Aceto, 872 F.2d at 1384.
63 Valentine III, 885 F. Supp. at 1512.
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Some other examples of "contributors" for purposes of Section 7003 are the following:
(1) an owner who fails to abate an existing hazardous condition of which he or she is aware;64
(2) a person who owned the land on which a facility was located during the time that solid waste
leaked from the facility;65 (3) a person who operated equipment during the time that solid waste
leaked from that equipment;66 (4) a person who installed equipment that later leaked;67 (5) a
person who simply provided a receptacle for existing wastes;68 (6) a generator who sold below
grade materials to a reclamation facility in order to dispose of them;69 and (7) a county that sited,
licensed, and franchised a privately owned and operated landfill for the disposal of industrial
wastes.70
3. Strict liability
Liability under Section 7003 is strict. EPA does not need to show negligence or willful
misconduct on the part of the defendant or respondent.71 The legislative history of the 1984
amendments to RCRA states that the "amendments clearly provide that anyone who has
contributed or is contributing to the creation, existence, or maintenance of an imminent and
substantial endangerment is subject to the equitable authority of [the statute], without regard to
fault or negligence."72
4. Joint and several liability
Congress intended Section 7003 to be a codification and expansion of the common law of
public nuisance.73 Courts have recognized that Congress intended to impose joint and several
liability where the injury is indivisible.74 Thus, if the defendants or respondents have caused an
indivisible harm, each may be held liable for the entire harm. EPA's position, which has been
adopted by at least one court, is that when the respondents or defendants believe that the harm is
64 Price /, 523 F. Supp. at 1073-74.
65 Zands, 779 F. Supp. at 1264.
66 Id.
67 Id.
68 Environmental Defense Fund v. Lamphier, 714 F.2d 331, 336 (4th Cir. 1983).
69 Valentine III, 885 F. Supp. at 1514.
70 Waste Industries, 734 F.2d at 161-62.
71 Aceto, 872 F.2d at 1377.
72 H.R. Rep. No. 198, 98th Cong., 2d Sess., Part 1, at 48 (1983).
73 S. Rep. No. 96-172, 96th Cong., 1st Sess., at 5, reprinted in 1980 U.S. Code Cong. & Ad.
News 5019, 5023.
74 United States v Valentine ("Valentine //"), 856 F. Supp. 627, 633 (D. Wyo. 1994) (citing
Conservation Chemical, 619 F. Supp. at 199).
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divisible, they bear the burden of demonstrating the divisibility of harm and the degree to which
each respondent or defendant is responsible.75
However, considering the adequacy of evidence of each responsible person's liability,
financial ability, and contribution to the site, as well as the constraints imposed by the Region's
limited resources, the Region should attempt to be inclusive with respect to the responsible
persons that it pursues in its action under Section 7003. The Regions can assess a particular
responsible person's "contribution to the site" by considering that person's contribution to the
conditions that may present an imminent and substantial endangerment, as well as its participation
in any previous phases of the required actions.
V. ACTIONS AND RESTRAINTS THAT CAN BE REQUIRED
Section 7003 gives courts the authority to order each responsible person "to take such
other action as may be necessary." "The forms of relief which are 'appropriate' must be
determined on a case by case basis in order to achieve the remedial [and protectiveness] purposes
contemplated by [RCRA]."76
Courts have consistently relied on the legislative history of Section 7003 to interpret the
breadth of EPA's authority and courts' discretion under this section. They have concluded that
this section was intended as a broad grant of authority to respond to situations involving a risk of
substantial endangerment to health or the environment. Most courts have found that "Section
7003 empowers the Court to grant the full range of equitable remedies. . . so long as such relief
serves to protect public health and the environment."77 The section's broad grant of authority to
"take such other actions as may be necessary" includes "both short- and long-term injunctive
relief, ranging from the construction of dikes to the adoption of certain treatment technologies,
upgrading of disposal facilities, and removal and incineration."78 This authority also includes the
authority to require in appropriate cases environmental assessment, controls on future operations,
and, potentially, environmental restoration.
A. Interim Measures
[nterim measures may be appropriate under Section 7003 depending on the urgency of the
situation.79 EPA or a court may order the containment, stabilization, and removal of contaminant
75 Ottati & Goss, 630 F. Supp. at 1401.
76 United States v. Price ("Price //"), 688 F.2d 204, 214 (3d Cir. 1982).
77 Valentine 11, 856 F. Supp. at 633 (citing cases that emphasize the broad grant of authority in
Section 7003).
78 H.R. Committee Print No. 96-IFC 31, 96th Cong., 1st Sess. 32 (1979).
79 United States v. Rohm and Haas Co. ("Rohm and Haas ///"), 2 F.3d 1265, 1271 (3d Cir.
1993).
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sources. Thus, the Regions or a court may use Section 7003 to order immediate sampling or
testing programs as part of a broader set of required actions. For example, the Region may issue
an order under Section 7003 to require immediate security and cleanup action in response to
hazards that have already been identified and to conduct additional assessments of potential
threats.
A few examples of interim measures that have been ordered under Section 7003 and that
EPA could order administratively or seek judicially include: (1) removal of drums and other
containers;80 (2) recontainment of all leaking barrels, construction of a new building and
movement of all barrels inside, and containment of all contaminated soil and storm water;31 and
(3) assessment of the integrity of tanks and impoundments on-site and performance of any interim
measures necessary to prevent releases. EPA and courts have also required interim measures that
focus on site security and preventing exposure, including: (1) installation of a fence around the
site and the posting of warning signs;82 (2) construction of a barrier around contamination and
runoff control mechanisms; (3) groundwater stabilization; (4) temporary measures that might be
necessary to protect wildlife from exposure;83 (5) temporary evacuation of the affected area; and
(6) provision of an alternative safe drinking water supply to an impacted area.
B. Investigation and Assessment
The legislative history of Section 7003 clearly states that Congress intended Section 7003
to give EPA the authority to obtain relevant information about potential endangerments.84 EPA
may also gather information under RCRA § 3007, 42 U.S.C. § 6907, or RCRA § 3013, 42 U.S.C
§ 6934, where those authorities apply. A few examples of investigation and assessment actions
that have been ordered include: (1) sampling, testing, and analysis of media to determine the
nature and extent of contamination;85 (2) assessment of the integrity of tanks and impoundments
on-site;86 (3) evaluation of the nature and extent of any migration of hazardous wastes from the
site;87 (4) a survey of affected receptors, studies to assess exposure, and studies of the effects on
health and the environment; (5) performance of a risk assessment; and (6) performance of a
80 See, e.g., United States v. Midwest Solvent Recovery, 484 F. Supp. 138, 145 (N.D. Ind. 1980).
81 United States v. Vertac Chemical Corp., 489 F. Supp. 870, 875-76 (E.D. Ark. 1980).
82 See Valentine I, 856 F. Supp. at 625 and 625 n. 4.
83 Id.
84 H.R. Rep. No. 1185, 93d Cong., 2d Sess. (1974).
85 See, e.g., Vertac, 489 F. Supp. at 875-76 (respondents to an administrative order on
consent agreed to "an extensive program of sampling and analysis").
86 Valentine III, 885 F. Supp. at 1510.
87 United States v. Rohm and Haas Co. ("Rohm and Haas IF), 790 F. Supp. 1255, 1259 (E.D.
Pa. 1992), rev'd on other grounds, 2 F.3d 1265 (3d Cir. 1993).
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diagnostic study of the threat that hazardous wastes leaching from a landfill posed to a public
water supply.ss
C. Long-Term Cleanup Work
Under Section 7003, EPA may also order or seek a court order requiring long-term
cleanup, including the design, construction, and implementation of any measures necessary to
abate the conditions that may present an endangerment.89
EPA or a court can thus require extensive work under Section 7003. For example, EPA
may seek, administratively or judicially, to require the responsible persons to: (1) identify and
evaluate potential remedies; (2) design, construct, and implement a chosen remedy; (3) provide an
alternative safe drinking water supply to an impacted area,90 including connecting affected areas to
a municipal water supply; (4) install or restore clay covers and containment walls over and around
certain areas of contaminated soils; (5) install and operate a wastewater treatment system as an
alternative to impoundments contaminated with historical wastes; (6) close contaminated
impoundments; (7) remove all wastes from the site or facility; (8) implement a groundwater
recovery system; (9) provide access to state and federal agencies; (10) monitor the effectiveness
of the remedy; (11) provide samples from monitoring wells to EPA and the state for analysis;91
(12) provide periodic reports to EPA;92 and (13) provide resources and information that will allow
a local community to develop the capacity to monitor and enforce compliance with an order
issued by EPA or a court.
D. Controls on Future Operations
Section 7003(a) explicitly provides the authority to a court to restrain handling, storage,
treatment, transportation, and disposal that may present an endangerment. Therefore, RCRA
§ 7003 actions are particularly useful to require the responsible person to cease any ongoing
activity that may contribute to conditions that may present an imminent and substantial
endangerment. Section 7003 authorities may also be used in appropriate circumstances to impose
controls on future operations at any facility or site, regardless of whether it is a permitted RCRA
facility.
88 Price II, 688 F.2d at 214.
89 Id at 213, quoting H.R. Committee Print No. 96-IFC 31, 96th Cong., 1st Sess. at 32.
90 See id. at 214.
91 Venae, 489 F. Supp. at 888-89.
92 Valentine III, 885 F. Supp. at 1510.
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One court has ordered that "[n]o party shall move any drums, tanks, containers, cartons,
chemicals or chemical residues" at the facility.93 EPA may also seek or impose restraints on
actions that are related to conditions that may present an imminent and substantial endangerment
such as: (1) shutting down a groundwater recovery system that is creating a threat to the
environment; (2) shutting down an incinerator that has inadequate controls; (3) terminating all
facility operations until all workers have been adequately trained in hazardous waste management;
(4) installing new pollution control equipment on a treatment unit; (5) applying for and obtaining
appropriate permits; and (6) constructing secondary containment.
E. Environmental Restoration
To the extent appropriate to abate conditions that may present an imminent and substantial
endangerment, EPA also may seek to accomplish environmental restoration using the broad
authority of Section 7003. Congress intended this authority "to invoke nothing less than the full
equity powers of the federal courts."94 Thus, where solid or hazardous waste may present an
imminent and substantial endangerment that consists of or includes ecosystem damage, EPA could
obtain restoration of the environmental damage.95 This form of recovery could include, for
example, restoration of wetlands affected by releases of pollutants.
F. Recovery of Government Costs Expended under Section 7003
1. Restitution under RCRA
It is EPA's position that the Agency may use Section 7003 to recover from responsible
persons costs expended to address a potential endangerment.96 Since Congress, in enacting the
endangerment provision of RCRA, sought to provide federal courts with full equity powers, the
equitable remedy of restitution should be available under Section 7003.97 Therefore, pursuant to
common law principles of restitution, "the recovery of costs incurred by the United States
pursuant to its activities under RCRA may be an appropriate form of relief in an action brought
93 Midwest Solvent Recovery, 484 F. Supp. at 145.
94 Price II, 688 F.2d at 214. The Senate Report on the 1984 amendments expressly approved
additional language in this decision indicating that Section 7003 was intended as a broad grant of authority
to order affirmative equitable relief.
95 At least one court has held that the equitable remedy of restitution is available under Section
7003. See Conservation Chemical, 619 F. Supp. at 201.
96 See, e.g., NEPACCO, 810 F.2d at 749-50.
97 Price II, 688 F.2d at 214 (noting that where circumstances dictated prompt preventive action,
EPA could undertake such action and "[reimbursement could thereafter be directed against those parties
ultimately found to be liable").
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pursuant to RCRA Section 7003."98 While developing their cases under Section 7003, the
Regions are encouraged to assess on a case-by-case basis and to consult with the appropriate
contact in the Office of Enforcement and Compliance Assurance (OECA) on the cost-
effectiveness and appropriateness of seeking recovery of costs. Costs that may be recoverable
include EPA staff salaries and expenses, contractor support, indirect costs," and other expenses
associated with investigating the site or facility.
In March 1996, the Supreme Court denied recovery to a private party for past costs in a
case brought under RCRA § 7002, where the site no longer posed an imminent and substantial
endangerment at the time the action was brought.100 That decision, however, does not address a
restitution action by the United States under Section 7003. Courts discussing cost recovery under
RCRA, including the Supreme Court in its March 1996 decision, have frequently noted the unique
function of the government in implementing the statutory scheme. Further, the United States'
position remains that, in appropriate cases, restitution is available under RCRA § 7002 when the
court's jurisdiction is properly invoked under the statute.
2. Cost recovery under CERCLA i? 107fa')
Costs incurred by EPA pursuant to RCRA § 7003 may be recoverable under CERCLA
§ 107(a). The courts have generally agreed that EPA can recover certain costs under CERCLA
§ 107(a) for actions taken under other statutory authority as long as each of the elements of
CERCLA § 107(a) is satisfied. Costs incurred by EPA pursuant to a RCRA action may therefore
be recoverable under CERCLA § 107(a) to the extent that such costs are (1) incurred as part of a
"removal" or "remedial" activity, as those terms are defined in CERCLA § 101, 42 U.S.C.
§ 9601; (2) incurred in responding to a release or threat of release of a CERCLA hazardous
substance, as defined in CERCLA § 101; and (3) not inconsistent with the National Contingency
Plan (NCP), 40 C.F.R. Part 300.'°'
08 Conservation Chemical, 619 F. Supp. at 201; accord United States v. Shell, 605 F. Supp.
1074, 1078-79 (D. Colo. 1985); Mayor of Boonton v. Drew Chemical Corp., 621 F. Supp. 663, 668-69
(D.N.J. 1985); United States v. Ward, 618 F. Supp. 884, 898-900 (D.N.C. 1985); United States v. Hooker
Chemicals and Plastics Corp., 680 F. Supp. 546, 558 (W.D.N.Y. 1988).
99 United States v. R.fV. Meyer, Inc., 889 F.2d 1497, 1502-05 (6th Cir. 1989, cert, denied, 494
U.S. 1057 (1990); United States v. Hardage, 733 F. Supp. 1427, 1438 (W.D. Okla. 1989), aff'd, 982 F.2d
1436 (10th Cir. 1992), cert, denied sub nom. Advance Chemical Co. v. United States, 510 U.S. 913
(1993).
100 Meghrig v. K.F.C. Western, Inc., 116 S.Ct. 1251 (1996). See also Agricultural Excess &
Surplus Ins. Co. v. A.B.D. Tank & Pump Co., No. 95 C 3681 (N.D. 111. Sept. 6, 1996) and Andritz Sprout-
Bauer v. BeazerEast. Inc., 4:CV-95-1182 (1997 U.S. Dist. LEXIS 10970) (M.D. Pa. July 28, 1997), in
which these courts expanded Meghrig to preclude recovery of costs incurred after a complaint was filed in
a Section 7002 action.
101 See, e.g., Rohm and Haas III, 2 F.3d at 1274-75.
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CERCLA § 107(a)(4)(A) permits EPA to recover response costs incurred as part of either
"removal" or "remedial" actions. The Regions should examine CERCLA's broad definitions of
"removal" and "remedial action" set forth in CERCLA §§ 101(23) and (24), 42 U.S.C.
§§ 9601(23) and (24), to determine the potential scope of cost recovery. Costs that may be
recoverable include EPA staff salaries and expenses, contractor support, indirect costs, and other
expenses associated with investigating the site or facility.
In United States v. Rohm and Haas Co , the U.S. Court of Appeals for the Third Circuit
ruled that the costs of EPA's oversight of a response action conducted by a private party cannot
be recovered under CERCLA § 107(a).'02 The United States believes, however, that the Rohm
and Haas decision was incorrectly decided and applied an overly narrow definition of "removal"
to exclude costs of overseeing private party work. Other courts outside the Third Circuit have not
followed this aspect of the Rohm and Haas decision.103 Nonetheless, the Regions should consult
the relevant case law before pursuing a cost recovery action.
VI. RELIEF AVAILABLE
A. Choosing Between an Administrative Order and Judicial Action
Section 7003 allows EPA to "bring suit in the appropriate district court" to seek certain
relief. It also allows the Agency to issue administrative orders, either unilaterally or on consent.
When deciding whether to initiate a judicial action or issue an administrative order under Section
7003, the Region should consider the following issues.
If the circumstances at a facility or site require immediate action,104 the quickest way to
get work started will generally be to issue a unilateral administrative order (UAO). An
administrative order can be issued as soon as EPA has evidence satisfying the statutory criteria.
Alternatively, a short period of time can be provided to negotiate an AOC.
102 Rohm and Haas III, 2 F.3d at 1278.
103 See, e.g., Atlantic Richfield Co. v. American Airlines, 98 F.3d 564, 572 (10th Cir. 1996)
(liable party that settled with EPA for oversight costs entitled to recover some of those costs in contribution
action); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir. 1985); United States v. Ekotek, 41
Env't Rep. Cas. (BNA) 1981 (D. Utah 1995); United States v. Lowe, 864 F. Supp. 628, 631-632 (S.D.
Tex. 1994); California Dep't of Toxic Substances Control v. SnyderGeneral Corp., 876 F Supp. 222,
224 (E.D. Ca. 1994) (holding that a proper construction of CERCLA allows for the recovery of costs
incurred in overseeing cleanup activities by either private parties or agencies); California Dep't of Toxic
Substances Control v. Louisiana-Pacific Corp , No. Civ. S-89-871 LKK (E.D. Ca. May 10, 1994).
104 The term "immediate action" should not be confused with the term "imminent and substantial
endangerment." Some situations may present imminent and substantial endangerments to health or the
environment without requiring immediate action.
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The Agency may also seek immediate judicial relief or issue a UAO and seek judicial
enforcement of the order, if necessary. If the responsible person is recalcitrant, the most
expedient avenue will often be an expedited judicial enforcement action requesting a preliminary
injunction or temporary restraining order. If the owner of the facility or site is unwilling to
provide access to the person who will be performing the work there, a judicial referral may be
needed to gain access. In such cases, the Region should consult with DOJ immediately upon
discovery of the conditions requiring immediate action. A judicial enforcement action requires a
referral to DOJ and the preparation and filing of appropriate pleadings in district court. This can
be accomplished expeditiously in appropriate circumstances. For a preliminary injunction or
temporary restraining order, the pleadings filed should contain a succinct statement describing
how each requirement of Section 7003(a) has been met, as well as the injunctive relief sought.
Where noncompliance is anticipated but immediate action is not required, the Region may
issue a UAO first and initiate judicial action only after the respondent has failed to comply. In a
suit for enforcement of a previously issued UAO, EPA is more likely to obtain judicial review on
the administrative record (under the "arbitrary and capricious" standard of review), rather than a
full hearing or trial of the issues.
B. Administrative Orders
The plain language of Section 7003 gives EPA the direct authority to issue administrative
orders without the need for civil referral. Nonetheless, early communication with DOJ can be
helpful to the Regions, particularly in situations where the respondents may not comply with an
administrative order. EPA does not interpret Section 7003 as requiring EPA to file an
administrative complaint and provide an opportunity for an evidentiary hearing before an
administrative law judge prior to issuance of the order.
In any administrative order issued under Section 7003, the findings of fact should describe
the problems at the site or facility and relate them to the actions required to abate conditions that
may present an imminent and substantial endangerment. It is important that the findings of fact
support each element of the relief sought.
To minimize the potential for confusion between responsible persons and the Agency
concerning the required actions, orders issued under Section 7003 should clearly describe the
required actions. An order may dictate discrete tasks such as installing appropriate signs,
ensuring that personnel handling hazardous wastes are properly trained, and removing drummed
wastes. When the conditions at the site or facility are not sufficiently well-defined to allow a
precise description of the work to be performed, the order may require specific assessment work
and the submission of work plans describing the steps necessary to abate the conditions. These
plans would be reviewed by EPA, modified by the respondent in accordance with EPA comments,
and implemented upon approval by EPA.
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In some situations, the Regions may find it most effective to require the respondent to
meet site-specific performance standards rather than dictating the work to be performed. This
allows a cooperative respondent latitude to choose the methods for achieving EPA's objective.
For example, an order could require the respondent to prevent migration of a plume of
contaminated groundwater within a specified time frame. This type of order should require the
submission of work plans designed to meet the performance standard and, upon approval of the
work plans by EPA, incorporate the work requirements into an order. When deciding whether to
issue an order that does not specify the work to be performed, the Region should assess the
sophistication and technical capabilities of the respondent and its agents.
An order issued to more than one person may either assign discrete tasks to different
respondents or specify that all respondents are jointly responsible for performing all tasks required
by the order. In the latter case, the order may cite the responsibility of each respondent to
cooperate with the others. A decision to issue an order assigning discrete tasks may be based on
an assessment that the respondents will be unable to work cooperatively or to divide the
responsibility equitably. Alternatively, separate, coordinated orders may be issued to each person.
In rare circumstances, if new information on a site and responsible persons is identified,
the Region may find it necessary to issue a series of orders to different persons. When EPA issues
subsequent orders that require the same work to be performed or actions to be taken, the Region
should ensure that the due dates for specific deliverables in subsequently issued orders coincide
with those in the earlier orders. The Region should also require each respondent to cooperate
with all other respondents and to coordinate their activities.
In any case, unless EPA believes the harm is divisible, the order should recite that the
harm is indivisible and liability is joint and several.
1. Choosing between unilateral administrative orders and administrative
orders on consent
The Region may negotiate an AOC if there are one or more financially viable responsible
persons who are (1) willing to undertake the required actions, including any necessary controls on
future operations, and (2) willing to negotiate an AOC within a reasonable time frame. If the
owner/operator is not a party to the AOC, a separate AOC or UAO for access may be necessary.
The appropriate time period for negotiations will depend on the nature of the conditions at the
particular site or facility. If the circumstances at the site or facility require immediate action,
issuing a UAO may be less time consuming than negotiating an AOC. The Region has the
discretion to issue a UAO without engaging in negotiations for an AOC. On the other hand, there
are advantages to entering into an AOC which should be considered when deciding how to
proceed. For example, cleanup work may proceed with less dispute and delay when it is
performed in the cooperative relationship fostered by settlement.
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2. Unilateral administrative orders
a. Generally
The Region may compel action by issuing a UAO. If one or more of the respondents fail
to comply with the terms of the order, EPA should prepare a referral for judicial enforcement
action to compel compliance and to collect penalties (see Section VIII below). To achieve
maximum compliance with UAOs issued by the Agency, the Regions should closely monitor
compliance with each order and take prompt action to collect penalties whenever violations
occur.
A UAO issued under Section 7003 should include the following elements:
• Statement of jurisdiction -- This section should set forth EPA's authority under Section
7003 to issue the order and cite the delegation of this authority to the Agency official
signing the order.
• Findings of fact -- These should include the facts that demonstrate that each of the legal
requirements for issuing an order under Section 7003 has been met and that the actions
ordered are necessary to protect health or the environment.
• Conclusions of law -- This section should include conclusions that each of the legal
requirements for a Section 7003 order has been met. The order should expressly conclude
that the conditions at the facility or site may present an imminent and substantial
endangerment. In orders issued to more than one person in cases in which the harm is
indivisible, the Region should also include a statement that each respondent is jointly and
severally liable to carry out each obligation of the order and that failure of one or more
respondents to comply does not affect the obligation of any other respondent to perform.
• Work to be performed -- The order should clearly identify the tasks to be performed, with
a schedule that includes appropriate reporting and approval requirements. As appropriate,
the Region may also include provisions for the following: performance standards; access;
quality assurance; sampling, data availability, and record preservation; and other necessary
provisions. The order may also include one or more statements of work setting forth the
required actions.
• Opportunity to confer -- The order should include a recitation of the respondent's right to
request an opportunity to confer with EPA regarding the facts presented in the order and
the terms of the order. The order should provide a deadline for requesting a conference,
which, if possible, should precede the effective date of the order. If a conference cannot
be held before the effective date of the order, it should be held as soon thereafter as
possible.
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• Notice of intent to comply -- The order should require the respondent to submit a notice
of intent to comply with the order. This notice should be due shortly after the effective
date of the order.
• Notice to the affected state — The order should recite that notice has been provided to the
affected state in accordance with RCRA § 7003(a).
• Enforcement -- The order should set forth the potential penalties for noncompliance.
Reservation of rights -- The order should include a statement of rights expressly reserved
by EPA. These may include:
~ the rights to disapprove work performed under the order, to require the
respondent to correct any work disapproved, and to require the respondent to
perform additional tasks;
~ all statutory and regulatory rights, authorities, and remedies, including any
pertaining to respondent's failure to comply with the terms of the order;
~ the right to perform any of the specified work or any additional work necessary to
protect health and the environment;
~ the right to recover costs incurred by EPA; and
~ a statement that compliance with the terms of the order does not relieve the
respondent of any obligations under RCRA or any other applicable local, state, or
federal laws and regulations.
• Modification and termination -- The order should contain a provision stating that EPA
may modify or revoke the order based on information received from the respondent or
discovered during the course of implementation of the order. Any such modification
should be incorporated into a revised order and issued to the respondent in the form of a
modified UAO. Each order should also provide for a clear termination point. This may be
accomplished by requiring the respondent to provide EPA with a written certification that
it has satisfactorily completed all of the work in accordance with the order, followed by
EPA review and approval and a notice from EPA that, based on the information then
available to EPA, the provisions of the order have been satisfied.
b. Special requirements for issuing unilateral administrative orders to
federal entities
Section 6001(b)(1) of RCRA provides EPA the authority to commence an administrative
enforcement action against any federal department, agency, or instrumentality pursuant to RCRA
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enforcement authorities, including Section 7003. Section 6001(b)(2) of RCRA, 42 U.S.C.
§ 6961(b)(2). requires that '"[t]he Administrator. . . initiate an administrative enforcement action
against such a department. . . in the same manner and under the same circumstances as an action
would be initiated against any other person."105
Section 6001(b)(2) of RCRA provides that no administrative order issued to a federal
department, agency, or instrumentality shall become final until such department, agency, or
instrumentality has had the opportunity to confer with the Administrator.106 It is EPA's position
that the federal entity should first confer with an appropriate regional official prior to seeking a
conference with the Administrator, and that if, following the regional conference, the head of the
federal entity wishes to confer with the Administrator, the procedures described below should
apply.
In each UAO issued to a federal entity, the Region should provide explicit instructions
regarding the conference with the regional official. The order should also state that in the event
the conference with the regional official does not resolve the issue(s), the head of the affected
federal entity will have the opportunity to confer with the Administrator provided it complies with
the following UAO provisions:
• Within ten days after the conference with the regional official, the head of the federal
entity, if it wishes to confer with the Administrator regarding the UAO, either through an
exchange of letters or through a direct meeting, must file a written request addressed to
the Administrator seeking an opportunity to confer with the Administrator. Unless
conditions at the site or facility require otherwise, EPA may allow an extension of the
period for filing this request. The request should be served on the Administrator with a
copy to the Director, Federal Facilities Enforcement Office, and all parties of record for
the agencies, including regional personnel. If the conference will occur through an
exchange of letters, the letter requesting the conference should specifically identify the
issue(s) that the federal entity wishes the Administrator to consider. If the federal entity
wishes to confer through a direct meeting, the request for a conference should also
specifically identify the issue(s) that the federal entity proposes to discuss with the
Administrator, as well as the person(s) who will represent the federal entity. In addition,
as part of its request for a conference either through an exchange of letters or a direct
meeting, the head of the federal entity should attach copies of all necessary information
103 However, because the Anti-Deficiency Act, 31 U.S.C. § 1341, makes payments by federal
agencies subject to appropriation of funds by Congress, there might be unique funding issues that arise
with regard to funding of work. Further, the Regions should include the following in each order to a federal
agency: "Nothing in this Order shall require the recipient federal agency to violate the Anti-Deficiency
Act."
106 RCRA § 6001(b)(2) contrasts with Executive Order 12580 on Superfund Implementation
(January 23, 1987), which requires EPA to obtain DOJ concurrence before issuing an order to an
Executive department or agency under CERCLA § 106(a).
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regarding the issue(s). Failure to request a conference within the ten-day period or within
an approved extension of that period will be considered a waiver of the right to confer
with the Administrator.
If the conference is to be conducted through a direct meeting, the parties of record for the
agencies may request to be present during the conference. This request to attend the
conference should likewise be in writing and served on the Director, Federal Facilities
Enforcement Office, and the parties of record for the agencies. After a determination is
made that a direct conference will occur, the Administrator will notify the head of the
federal entity who requested the conference and the parties of record for the agencies.
• Following the conclusion of the conference, a person designated by the Administrator will
provide a written summary of the issues discussed and addressed. Copies of the written
summary will be provided to the parties of record for the agencies. Within thirty days of
the conference, the Administrator will issue a written decision with appropriate instruction
regarding the finality of the order. This decision should be made part of the administrative
record file if one has been compiled.
3. Administrative orders on consent
a. Generally
As noted above, EPA may enter into AOCs under Section 7003 when the Region believes
that a settlement can be reached without protracted negotiations and that the responsible person is
capable of performing the ordered actions within negotiated time frames. Because Section 7003
is triggered only when the conditions at a facility or site may present an imminent and substantial
endangerment, protracted negotiations are generally not acceptable.
An AOC should include each of the elements of a UAO (see Section VI.B.2 above). The
Region may also choose to include in an AOC provisions relating to:
• Stipulated penalties — The stipulated penalties provision may include different penalty
amounts for different classes of violations (for example, one amount for failure to
complete work tasks and another amount for failure to submit reports). This provision
should clearly state that penalties begin to accrue on the day after complete performance is
due or the date a violation occurs, and that the penalties are due to be paid at a time
certain, generally after a written demand for payment. See. e.g., Federal Claims Collection
Act, 31 U.S.C. § 3711 e/ seq.; Federal Claims Collection Standards, 4 C.F.R. § 102.2; and
EPA regulations at 40 C.F.R. §§ 13.9 and 13.11. This section should also provide for
interest on any unpaid stipulated penalty balance. Finally, this section should provide that
payment of stipulated penalties does not relieve the respondent of the obligation to
perform work under the order nor does it preclude EPA from pursuing any remedies or
sanctions that may be available by reason of respondent's failure to comply. To achieve
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compliance with all AOCs, Regions should closely monitor compliance with orders and
assess stipulated penalties as appropriate.
• Dispute resolution and force majeure - An AOC for extensive cleanup work should
include provisions for the resolution of disputes between EPA and the other parties and to
address the occurrence of force majeure events.
• Right of contribution -- At least one court has recently held that there is a right to
contribution in actions brought under Section 7003.107 This conclusion was based in part
on the principle that a right to contribution is an essential component of joint and several
liability. Therefore, respondents may seek some representation in an AOC regarding their
right to contribution. The Regions should be careful not to suggest that this right can be
granted or denied by EPA. Because this right arises by operation of law, an AOC issued
under Section 7003 should do no more than acknowledge any right to contribution that a
respondent may have.108
For additional guidance and examples of specific language that may be used in an AOC
under 7003, the Regions may consult with the appropriate contacts in OECA's Office of Site
Remediation Enforcement (for facilities or sites needing cleanup work) or Office of Regulatory
Enforcement, RCRA Division (for facilities or sites needing restraints on future action).
b. Entry into administrative orders on consent with federal entities
Section 6001(b)(1) requires that any voluntary resolution or settlement of a RCRA
administrative enforcement action against a federal entity be set forth in a consent order. Where
the potential endangerment presented allows for brief negotiations, the Region should negotiate
an AOC with the federal entity using the same procedures that it would use with a private party.
As noted in Section VI.B.2.b above, Section 6001(b)(2) of RCRA provides that no
administrative order issued to a federal entity shall become final until such entity has had the
opportunity to confer with the Administrator. In EPA's view, this requirement applies to UAOs
only. Because the parties have reached a settlement of the issues, it will not be necessary for the
federal entity to confer under Section 6001 with respect to the settled matter.
C. Judicial Relief Available
An injunction is a court order requiring the respondent to either take an action or not take
an action, depending on the circumstances at the facility or site. While exercising its discretion to
107 Valentine II, 856 F. Supp. 627.
108 Because contribution rights under Section 7003 arise out of common law (see id.), a private
litigant cannot establish joint and several liability in a contribution action.
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issue an injunction, a court may order either a specific action or;
addition, it may use its discretion to order all or part of the relief
that it deems appropriate.109 The plain language of Section 7003
issue injunctions to abate conditions that may present an imminei
endangerment."0 The means by which a court will order specifn
may include temporary restraining orders, preliminary injunction:
temporary restraining order is a judicial order that prohibits spec:
maintains the status quo until the court can hold a hearing on the
is a judicial order requiring a person to take or refrain from speci
hold a trial on the issue. A permanent injunction is a final judici;
on the merits and that requires a person to take or refrain from sj
further describes these legal mechanisms. When choosing wheth
injunction, preliminary injunction, or a temporary restraining ord
closely with DOJ as early as possible.
D. Judicial Review
In addition to describing judicial relief available under Se
describes judicial review of administrative orders, including the u
review of Agency orders, the standard and scope of judicial revit
of settlements.
VII. OTHER REQUIREMENTS AND CONSIDERATIO
A. Notification and Posting
Section 7003(a) provides that before the Agency may issue
must be given to the "affected State." If EPA and a state have ente
agreement that includes an applicable notice provision, the Region ;
accordance with that provision. With respect to any other state, the
guidance provided in Section VII.A. 1 below.
Section 7003(c) requires that notice of hazardous waste f
substantial endangerment be given to the "appropriate local govt
requires that notice be posted at the site. Although the notice an
Section 7003(c) apply only to sites containing hazardous waste,
suggestions provided in Section VTI.A.2 below with respect to s
109 See Price II, 688 F.2d at 211-12, citing S. Rep. No. 172,<
110 Id. at 213-14, citing H.R. Committee Print No. 96-IFC 31
see also,Conservation Chemical, 619 F. Supp. at 201.
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1. Notice to the affected state
The statute does not specify a time period within which notice of an administrative order
to a state should be given, nor a method for providing such notice. Unless the exigencies of the
situation require otherwise, the Region should normally provide written notification to the
director of the state agency having jurisdiction over hazardous waste matters at least one week
before the Agency issues an administrative order. Where the conditions require that notification
be given within a shorter time frame, the Region may provide notification by telephone, followed
by written confirmation, including the date and time of the telephone notification. The
administrative order should recite that notice has been given to the affected state.
Without indicating a time frame, Section 7003(a) requires EPA to provide notice to the
affected state regarding any judicial action. When initiating a judicial action, the Region should
consult with DOJ regarding an appropriate process for providing notice to the affected state.
2. Notice to local government agencies/posting
In contrast to the notice requirements of Section 7003(a) which are triggered by a judicial
action or the issuance of an administrative order, Section 7003(c) of RCRA requires the
Administrator to "provide immediate notice to the appropriate local government agencies"
"[u]pon receipt of information that there is hazardous waste at any site which has presented an
imminent and substantial endangerment to human health or the environment." The Administrator
must also "require notice of such endangerment to be promptly posted at the site where the waste
is located."
To comply with the first notice requirement in Section 7003(c), the Region may provide
written notification to the local entity responsible for emergency response (such as the local fire
department or hazmat team), the county and/or city health department, and to the highest
official(s) in the city or other political subdivision where the facility or site is located (such as the
mayor, county executive, or county commission), as soon as possible after EPA receives
information that conditions at the facility or site present an imminent and substantial
endangerment. Either before or after the Region provides such notification, an Agency official
may telephone the official(s) receiving the notice to explain why the notice is being sent and to
answer any questions the official(s) may have.
The Region may fulfill the posting requirement of Section 7003(c) by including language
in the judicial complaint or administrative order that requires the defendant or respondent to post
notice of the endangerment at the site. If delay is anticipated, EPA may post the notice or request
local authorities to do so.
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B. Public Participation
Under Section 7003(d), whenever a settlement is reached under Section 7003 and "the
United States or the Administrator proposes to covenant not to sue or to forbear from suit or to
settle any claim" arising under Section 7003, "notice, and opportunity for a public meeting in the
affected area, and a reasonable opportunity to comment on the proposed settlement prior to its
final entry shall be afforded to the public." For model public notice language, the Regions should
refer to the August 16, 1995 memorandum from Sandra L. Connors of OECA's Office of Site
Remediation, entitled "Model Notice Language for Compliance with Public Participation
Requirements of Section 7003(d) of RCRA."
1. Public participation in judicial settlements
As with judicial settlements under other authorities, DOJ ensures that the public is able to
comment on judicial settlements under Section 7003. To supplement DOJ's procedures, the
Region may, as appropriate, publish notice of the proposed settlement in the community section
of a newspaper of general circulation near the facility or site.
2. Public participation in administrative settlements
Because an AOC issued under Section 7003 may represent the settlement of a "claim
arising under [Section 7003]" within the meaning of Section 7003(d), the Regions should provide
public notice and an opportunity to comment on each AOC. If the administrative settlement
addresses only RCRA § 7003 claims, the Region may publish notice of the proposed settlement in
the Federal Register and/or in the community section of a newspaper of general circulation near
the facility or site. The Region may publish the notice after the AOC has been signed by the
respondent but before it has been signed by the Region. Alternatively, the Region may publish the
notice after the AOC has been signed by both parties. In either case, the agreement should recite
that final ization of the settlement is subject to the public notification requirements of Section
7003(d).
After the expiration of the public comment period, the settlement may be considered final
unless EPA receives comments that persuade it to modify or withdraw the settlement.
Documentation of the notice, any comments received, EPA's response to the comments, and a
memo signed by the appropriate regional official finalizing the settlement should be included in the
administrative record file.
Because the statute requires only a "reasonable" opportunity to comment on proposed
settlements, the Regions may exercise discretion in deciding how long the public comment period
should be held open. Unless the exigencies of the situation require otherwise, the public comment
period should generally be held open for 30 days after the publication of the notice. However,
even where emergency action has been taken, the Region should attempt to ensure public
involvement. One means for ensuring public awareness where an emergency action has been
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taken would be to hold a public meeting as soon after the issuance of an order as one can be
convened.
If the administrative agreement addresses claims under another statute (such as CERCLA)
that has its own independent notice and comment requirements, the method of notification should
conform to all applicable statutory requirements.
3. Other appropriate public participation
Although not required by RCRA, the public should be involved in activities conducted
under Section 7003 to the maximum extent possible given the exigencies of the situation. For
Section 7003 orders that require cleanup and unless the exigencies of the situation require
otherwise, the Regions should ensure that public notice and an opportunity to comment are
provided (1) whenever EPA issues an order, (2) during the remedy selection process, and (3)
upon the Agency's determination that the cleanup has been completed. When the exigencies of
the situation prevent public notice and an opportunity to comment from occurring when the
Agency issues an order or before the remedy has been selected, the Regions should ensure public
involvement at the earliest opportunity.
With respect to any type of order issued under Section 7003, the Region may consider
holding public meetings to answer any questions or address public concerns if resources are
available for such meetings."1 As appropriate, the Regions should consider holding public
meetings regarding sites that are located near low income or minority populations, especially
where they have attracted significant public concern because of accidents or for other reasons, or
that present other conditions or issues that may generate a high level of public interest.
In addition, especially if the facility or site is located near low income or minority
populations, the Region may consider developing a public participation strategy based on The
Model Plan for Public Participation developed by the Public Participation and Accountability
Subcommittee of the National Environmental Justice Advisory Council (November 1996).112
For more information about public involvement in RCRA matters generally, see "RCRA Public
Involvement Manual," EPA/530-R-96-007 (September 1996). Although this manual refers to corrective
action under RCRA § 3008(h), it provides useful suggestions for actions under Section 7003.
"2 For additional background information on environmental justice, see Executive Order No.
12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income
Populations" and the March 17, 1994 memorandum from Jean C. Nelson, General Counsel, to Carol M.
Browner, Administrator, regarding EPA responsibilities under Executive Order No. 12898.
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C. Procedural Considerations
1. Administrative record Tile
Although EPA is not legally required to compile an administrative record file for orders
issued under Section 7003, the Regions are strongly encouraged to compile an administrative
record file that contains the information considered by EPA in determining whether conditions at
the site may present an imminent and substantial endangerment and the appropriate actions to
abate those conditions, as well as an explanation of the basis for EPA's determinations. Unless
the exigencies of the situation require otherwise, the Regions are strongly encouraged to formally
compile the administrative record file before issuing the order."3 A carefully compiled
administrative record file will facilitate negotiations and conferences with the respondent, serve as
background material during the public notice and public comment period, and serve as a basis for
any judicial review of an administrative order.
In order to argue that judicial review of an administrative order should be limited to the
administrative record, the Agency needs to be able to support its determination that conditions at
the facility or site may present an imminent and substantial endangerment and the appropriate
actions to abate those conditions using only the information contained in the administrative
record."4
Evidence contained in the administrative record file may be documentary, testimonial, or
physical and may be obtained from a variety of sources, including those listed in Attachment 3
Subject to applicable law restricting the public disclosure of confidential information and
deliberative material, the file should include all relevant documents and oral information (reduced
to writing) that the Agency considered when determining whether conditions at the site may
present an imminent and substantial endangerment and the appropriate actions to abate those
113 The 1984 Guidance stated that at the time the order is issued the Region must have all the
evidence necessary to demonstrate that the statutory criteria have been satisfied. EPA is not legally
required to compile an administrative record file, and the exigencies of the situation may sometimes prevent
EPA from compiling the file before issuing an order under Section 7003. EPA has therefore modified its
policy with respect to the timing and necessity of compiling an administrative record file for a Section 7003
action.
'14 The 1984 Guidance stated that "all evidence supporting the finding of any imminent and
substantial endangerment in the order must be compiled into a single, concise document constituting the
endangerment assessment." EPA is not legally required to compile an "endangerment assessment."
Nonetheless, EPA must make a determination that conditions may present an imminent and substantial
endangerment. The information upon which EPA bases its determination (the administrative record) will
most likely contain all of the documents that would be used to develop an endangerment assessment. This
guidance document therefore does not advise the Regions to compile endangerment assessments for orders
issued under Section 7003.
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conditions.Ib
The Region should place a complete copy of the administrative record file in a publicly
accessible location within the regional office and another complete copy in a public building (such
as a public library) located near the facility or site. If a complete copy of the administrative record
file is available electronically, the Region should also make that version available to the public.
The administrative record file should be readily retrievable (i.e., have an index) and be available
for review. The administrative record file should then be augmented with a copy of the order as
well as records on conferences, respondent's objections, public comments, and other appropriate
documents, as those documents become available.
2. Other procedures for unilateral administrative orders
a. Opportunity to confer
Each UAO issued under Section 7003 should offer the respondent an opportunity to
confer concerning the appropriateness of its terms and its applicability to the respondent. If the
respondent requests a conference, the administrative record should be compiled and made
available for the respondent to examine. The conference will help EPA ensure that it has based its
order on accurate information and will provide the respondent with an opportunity to ask any
questions and to raise any concerns that it may have. An opportunity to confer may also reveal
the unwillingness of the respondent to take necessary action. EPA can then decide to take
necessary action itself or seek judicial remedies.
The conference will normally be held at the regional office and will be presided over by
staff selected in accordance with regional delegations and policy. At any time after the issuance
of the order and particularly at the conference, EPA should be prepared to explain the basis for
the order and to promote constructive discussions. The respondent should receive a reasonable
opportunity to address relevant issues. The schedule and agenda for the conference will be left to
the discretion of the presiding official, based on these principles.
Following the conference, the presiding official should prepare and sign a written summary
of the conference. The summary should contain (1) a statement of the date(s) and attendees of
any conference(s) held, (2) a description of the major inquiries made and views offered by the
respondent, and (3) a summary of EPA's responses to the respondent. This written summary
should be placed in the administrative record file. Where appropriate and not contraindicated by
site conditions, the official who issued the original order may issue a written statement staying the
effective date of the order pending completion of the conference process.
115 For useful guidance on how to handle confidential and privileged documents as well as other
issues, the Regions should consult 40 C.F.R. Part 2, Subpart B. The Regions may also find it helpful to
consult the "Final Guidance on Administrative Records for Selection of CERCLA Response Actions"
(OSWER Directive No. 9833.3A-1, December 3, 1990).
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b. Modification, revocation, or stay
If the conference yields new and significant information, EPA may modify, revoke, or stay
the order. Any modification of the order should be incorporated into a revised order which is
then issued to the respondent. The Region should place an explanation of the modification, stay,
or revocation in the administrative record file. In the event of modification, revocation, or stay of
the order, the Region should address in the administrative record file any significant issue raised
by the respondent with respect to the basis for the order or its provisions.
VIII. ENFORCEMENT OF UNILATERAL ADMINISTRATIVE ORDERS AND
ADMINISTRATIVE ORDERS ON CONSENT
A. Elements of an Enforcement Action Initiated under Section 7003(b1
When the respondent to a RCRA § 7003 administrative order has willfully violated or has
failed or refused to comply with that order, the Agency may seek civil penalties under Section
7003(b) of up to S5,500"6 for each day in which such violation occurs or such failure to comply
continues. The language of Section 7003(b) applies to "any order of the Administrator under
subsection (a)." Therefore, this enforcement provision applies to both UAOs and AOCs issued
under Section 7003(a). Section 7003(b) further provides that an action to enforce a UAO or
AOC be brought in the appropriate United States district court.
A penalty action may be brought in a complaint seeking to enforce the underlying order
issued under Section 7003(a) (i.e., for injunctive relief), or in an action solely for untimely or
inadequate performance {i.e., for assessment of penalties). The respondent must meet both the
quality and timeliness components of a particular requirement to be considered in compliance with
the terms and conditions of the order.
Based on constitutional principles, a defendant may assert a defense of "sufficient cause"
in an action for penalties under Section 7003. Specifically, a defendant may avoid liability for
penalties under Section 7003(b) if the defendant demonstrates it had "an objectively reasonable
good faith belief that it was not required to comply with the administrative order after it was
issued by the EPA.""7
Each element of Section 7003(b) is discussed below.
116 See n. 14, above.
117 Valentine III, 885 F. Supp. at 1514-15.
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1. 'TAlnv person who"
EPA must first establish that the person receiving an order issued under Section 7003(a) is
a "person" within the meaning of RCRA § 1004(15) (see Section IV.C.l above).
2. "rwiillfullv violates, or fails or refuses to comply with anv order"
A respondent to an order issued under Section 7003 is liable for penalties if the respondent
either (1) "willfully" violates the order, or (2) fails or refuses to comply with it. Since liability
under Section 7003 is joint and several, this clause allows enforcement of an order against any
respondent who willfully violates or fails or refuses to comply with a Section 7003 order, even
though other respondents may be performing the work required by the order."8
3. 'TMlav. in an action brought in the appropriate United States district court
to enforce such order, be fined not more than fS5.5001 for each dav in
which such violation occurs or such failure to comply continues"
EPA can seek up to the maximum of $5,500 from each person who does not comply with
an order for each day that a willful violation or failure or refusal to comply goes uncorrected. If
all respondents to whom the order was issued have failed to comply, Section 7003(b) penalty
claims may be brought as part of an action to enforce the underlying order. If one or more
respondents to the order are complying, penalty claims may be brought against each recalcitrant in
an action to enforce the order or in a "penalty only" action. Thus, in instances where the work
required by the order has been fully performed by certain respondents, the United States may
initiate an action for penalties against those who violated the order by not participating in the
performance of the work, even though a court can no longer grant the injunctive relief sought in a
complaint seeking to enforce the order. If, however, work remains to be done under the order, a
court can order each non-complying respondent to perform work in addition to requiring it to pay
penalties.
B. Settling Claims for Civil Penalties under Section 70030?)
This section provides guidelines for settling claims for civil penalties for noncompliance
with administrative orders issued under RCRA § 7003.119 The RCRA Civil Penalty Policy (RCPP
or the "Penalty Policy") (October 1990) applies to actions under Subtitle C of RCRA, which
include violations that carry penalties with a potential statutory maximum of $27,500 a day. The
118 See Valentine III, 885 F. Supp. at 1511-15 (finding a defendant potentially responsible under
Section 7003 even though other defendants had settled with the United States and were cleaning up the
site).
119 For noncompliance with an administrative order issued jointly under RCRA § 7003 and
CERCLA § 106, Regions should seek penalties under CERCLA and any applicable CERCLA penalty
policy.
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RCRA Civil Penalty Policy does not apply directly to penalties under Section 7003(b). However,
the principles that form the basis of the Penalty Policy and the penalty calculation methodologies
in that policy (for example, for multi-day penalties) generally apply to settlement of penalties
under Section 7003. This section will provide additional guidance for applying those principles in
the context of enforcement of Section 7003.
The stated purposes of EPA's general civil penalty policies120 and the RCPP are to ensure
that (1) civil penalties under RCRA are assessed in a fair and consistent manner, (2) penalties are
appropriate for the gravity of the violation, (3) economic incentives for noncompliance are
eliminated, (4) penalties are sufficient to deter additional violations, and (5) compliance is
expeditiously achieved and maintained. The Regions should seek to attain these goals when
settling claims for penalties under Section 7003(b). To the extent that a noncomplier is deemed
eligible, the "Policy on Compliance Incentives for Small Businesses," 61 Fed. Reg. 27984 (June 3,
1996) and the Audit Policy ("Incentives for Self-Policing: Discovery, Disclosure, Correction and
Prevention of Violations"), 60 Fed. Reg. 66706 (December 22, 1995), may apply to mitigate
penalties sought in settlement of noncompliance with orders issued under Section 7003.
1. Overview of the penalty calculation process
Section 7003(b) establishes a maximum civil penalty of $5,500 a day for refusal or failure
to comply with an administrative order issued under Section 7003. When settling a penalty claim
under Section 7003(b), this amount may be reduced according to the facts and circumstances of
the noncompliance. Where the order is issued to more than one person, a penalty should be
calculated individually for each noncomplier, not divided among noncompliers. Application of
these guidelines may yield different settlement amounts for different noncompliers with the same
order.
These guidelines outline a four-step process for calculating a penalty for settlement
purposes. First, a daily penalty should be determined by evaluating the potential for harm caused
by the noncompliance and the extent of deviation from the requirements of the order. Second, the
daily penalty should be multiplied by the number of days of noncompliance. Third, if the
noncomplier obtains an economic benefit by its noncompliance, that benefit should be calculated
and added to the daily penalty, yielding the total penalty. Finally, to arrive at an adjusted total
penalty, the gravity-based portion of the penalty may be adjusted by other factors, including any
good faith, inability to pay, history of violations, and willfulness or negligence on the part of the
respondent. The economic benefit portion of the penalty should be mitigated only to account for
litigation risk and documented inability to pay.
2. Determination of gravity-based penalty amount
120 "Policy on Civil Penalties," Price (February 16, 1984) and "A Framework for Statute-Specific
Approaches to Penalty Assessments," Price (February 16, 1984).
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A daily penalty amount for violation of an administrative order is calculated by
determining the gravity of the noncompliance with the administrative order based on two factors:
the potential for harm resulting from noncompliance and the extent of deviation from the
requirements of the order.
a. Potential for harm
For violation of an Agency order, the potential for harm category will reflect (1) the threat
to health and the environment posed by conditions at a facility or site and the effect of the
noncompliance on those conditions, and (2) the threat to the integrity of EPA's enforcement
program. The Region should consider the factors listed in the RCPP to the extent applicable plus
any additional factors relevant to violations of an Agency order that might not arise in the context
of regulatory violations. After considering all relevant factors, the Region should determine
whether the potential for harm is major, moderate, or minor.
i. Potential for harm to health or the environment
In evaluating the potential for harm to health or the environment, the Region should
consider the potential seriousness of the conditions at the facility or site. Because each
administrative order issued under Section 7003 is designed to address conditions that may present
an imminent and substantial endangerment, the threat to health and the environment posed by
conditions at a facility or site will almost always militate towards a "major" potential
for harm to health or the environment. However, considerations of the effect of noncompliance
on those conditions may under certain circumstances militate toward a lower potential for harm.121
If the noncompliance does not aggravate, extend, or increase the potential hazards at the facility
or site, a lower potential for harm may be appropriate.
For violations of administrative orders, the extent that failure to comply aggravates the
threat to health or the environment may also be relevant. Therefore, some additional factors to
consider would be:
• the extent to which noncompliance with the order aggravates potential harm to health or
the environment (for example, where the order required neutralization of highly reactive
wastes that threatened workers at the facility or where excessive dioxin emissions continue
to threaten nearby residents because the order's requirement to install control equipment
has not been met); and
121 Regions should note, however, that "violations may be considered of major significance based
on their potential for harm, even where no actual damage has resulted." In re Everwood Treatment Co.,
RCRA Appeal No. 95-1, slip op. at 24 (Envt'l App. Bd. September 27, 1996). In particular, the
Environmental Appeals Board held that the adverse effect of a violation on the RCRA program can result
in a "major" potential for harm even in the absence of any actual harm to health or the environment. Id. at
17-21.
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• the extent to which noncompliance with the order threatens additional environmental
media (for example, where the order required removal of a waste pile to address surface
soil contamination and noncompliance may have resulted in a threat to groundwater).
li. Harm to the enforcement program
Harm to EPA's enforcement program posed by violation of an Agency order is somewhat
distinct from harm to the RCRA regulatory program posed by violation of specific regulatory
requirements. For example, operating without a permit and failure to manifest shipments of
hazardous waste are violations that potentially undermine the preventative goals of RCRA's
regulatory program. On the other hand, failure to promptly and completely comply with an
Agency order may impose additional enforcement burdens on EPA and additional response
burdens on other respondents to the order and may undermine EPA's ability to obtain compliance
with future orders. Therefore, the Region should consider the following factors in addition to
those set forth in the RCPP:
• diversion of government resources resulting from the need to enforce the administrative
order; and
• any increased burden on complying respondents based on the noncomplier's failure to
coordinate and participate in the work (for example, any difficulty the complying
respondents experience in financing the work or obtaining the expertise to conduct the
work without the noncomplier's participation).
b. Extent of deviation from the requirements of the order
In identifying the extent of deviation from the requirements of an administrative order, the
Region should evaluate whether the deviation is major, moderate, or minor. For violations of an
Agency order, the extent of deviation component of the penalty should reflect both the
noncomplier's general circumstances and the noncomplier's site-specific behavior. Thus, the
same type of noncompliance may fall into a higher or lower classification depending on factors
that might affect the noncomplier's behavior at the site. The RCPP sets forth some of the factors
that may be relevant. While not excusing noncompliance, using these factors to distinguish
among noncompliers serves the Agency's goal of achieving both fairness and deterrence in the
penalty calculation.
Some additional factors to consider in assessing the extent of deviation from the
requirements of an Agency order:
• the extent of noncompliance (i.e., whether the work was inadequately performed or not
performed at all); and
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• the timeliness of any work that was performed.
c. Penalty assessment matrix
The Regions should consult the following matrix to determine an appropriate daily
penalty.122 The matrix is based on a maximum penalty amount of S5,500 and provides broad
flexibility in determining an appropriate penalty. The Regions should note that with a maximum
penalty of $5,500 a day, there is less room to accommodate differences between noncompliers by
placing a higher premium on the most egregious instances of noncompliance than there is when
the statutory maximum is S27,500 a day. Therefore, in determining the proper penalty amount,
the Region should be aware that distinctions made under Section 7003 will likely be more subtle.
Extent of deviation
Potential for
MAJOR
MODERATE
MINOR
harm
MAJOR
$5,500 - 51,100
$4,400 - $825
$3,300 - $605
MODERATE
$2,420 - $440
$1,760 - $275
$1,100 - $165
MINOR
$660 - $110
$330 -$110
$110
A "major" potential for harm to health, the environment, or the enforcement program
could include (1) actual harm to health or the environment, (2) continued or increased exposure,
or (3) continued threat of fire or explosion. A "major" extent of deviation would generally
involve total noncompliance or such poor work as to be tantamount to total noncompliance.
A "moderate" potential for harm to health, the environment, or the enforcement program
could include continued or aggravated threat to health or the environment where there is no
immediate threat of exposure, fire, or explosion. A "moderate" extent of deviation would involve
partial noncompliance, work of poor quality, or a pattern of excessively or routinely delayed
compliance.
A "minor" potential for harm to health, the environment, or the enforcement program
would be rare at a facility or site that may present an imminent and substantial endangerment.
However, where noncompliance has little effect on site conditions, the potential for harm could be
minor, depending on the magnitude of harm to the enforcement program. For instance, failure to
122 Noncompliance with administrative orders that occurs on or before January 30, 1997 is subject
to a maximum civil penalty of S5.000. The matrix is based on a maximum penalty of S5,500. For
noncompliance on or before January 30, 1997, the per day penalty amount selected from the matrix should
be reduced by ten percent. Where noncompliance occurs both before and after January 30, 1997, the
enforcement team should calculate the total penalty for the period before and for the period after, and add
the two figures together.
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submit interim reports may present a "minor" potential for harm if final deadlines are met.
Similarly, a "minor" extent of deviation might involve missed intenm deadlines or the inadequate
completion of tasks ancillary to the primary requirements of the order.
3. Penalties for multi-dav violations
The daily penalty amount should be multiplied by the number of days of noncompliance.
Absent extraordinary circumstances, penalties for violations of orders issued under Section 7003
should not be capped, but should instead be assessed for the entire period of the violation. When
a respondent fails to perform work under an administrative order, the violation will generally
become more serious as time passes.
When settling claims for a multi-day violation, the Region should determine whether the
violation has continued for more than one day, the length of the violation, and whether a
multi-day penalty is appropnate. Penalties should be calculated beginning on the day after work is
to commence or, for non-work activities, the day after the first missed deliverable is due. The
period of noncompliance for work that is inadequately performed should be calculated from the
work due date under the order or the date that the inadequate work was performed. The penalty
period should end once the deficiency has been corrected. The following are additional issues that
may arise in the context of violations of an Agency order.
If all respondents to an order stop work, the period of noncompliance should run from the
last day that activities were performed under the order or, for reporting requirements, from the
day following the deadline for the first missed deliverable. The noncompliance period ends either
when one or more noncompliers demonstrate compliance with the order or when the work
required by the original order is completed under the terms of that order or a subsequent order or
settlement.
When a respondent drops out of a complying group and the group continues to perform
the work, the period of noncompliance should begin on the day following the date of the
noncomplier's clear, objective indication of intent not to comply further. If the noncomplier had
agreed to pay money into a group fund, then the period of noncompliance should begin on the
date of the missed payment. For purposes of the penalty calculation, the period of noncompliance
ends when (1) the noncomplier resumes compliance with the order, (2) the work required by the
order is completed by other respondents, or (3) if EPA initiates action under another statutory
authority to complete the work, when EPA completes the work required by the order.
4. Economic benefit of noncompliance
If the noncomplier obtains an economic benefit by its noncompliance, that benefit should
be calculated and added to the daily penalty. To ensure that noncompliers do not save money or
gain a competitive advantage by failing to comply with an Agency order, the Region should not
settle for a penalty amount less than the economic benefit of noncompliance unless (1) it is
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unlikely, based on the facts of the particular case as a whole, that EPA will be able to recover the
economic benefit in litigation, or (2) the respondent has a documented inability to pay the total
proposed penalty When assessing economic benefit of noncompliance in cases that involve
multiple parties, the Regions are encouraged to consult with headquarters.
5. Adjustment factors
The Region may take into account a noncomplier's good faith efforts to comply, degree of
willfulness in violating an order, history of noncompliance with Agency orders or other
requirements, and inability to pay the full amount of the penalty. The first three of these
adjustments do not apply to the economic benefit portion of the penalty. Some elements of these
adjustment factors, such as level of sophistication or technical expertise, size, and inability to pay,
may be particularly applicable to small businesses.
All of the adjustments are cumulative; that is, more than one may apply in any given case.
Two caveats apply: (1) where the initial penalty calculation is adjusted downward, the Region
should ensure that the noncomplier ends up in a less favorable position than any respondent that
did comply with the order, and (2) where the initial penalty calculation is adjusted upward, the
total penalty cannot exceed S5,500 for each day in which such violation occurs or such failure to
comply continues.
a. Application of adjustment factors
i. Good faith efforts to comply
The Region may consider adjusting the penalty downward if there is evidence that the
noncomplier made good faith efforts to comply with the order. For violation of an administrative
order, an adjustment for good faith may also include consideration of the noncomplier's size,
capabilities, and level of sophistication; degree of contribution or culpability; and any attempts to
participate and coordinate with complying respondents.
ii. Degree of willfulness or negligence
Although willfulness is not a statutory prerequisite for enforcement of an administrative
order, a higher penalty may be appropriate for a willful violation. Factors relevant to this inquiry
include the amount of control the noncomplier had over how quickly the violation was remedied;
the noncomplier's involvement with the site, level of knowledge, and technical expertise; and
whether compliance was delayed by factors that were not reasonably foreseeable and that were
out of the control of the noncomplier.
ni. History of noncompliance
In assessing whether a history of noncompliance should be applied to elevate a penalty
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amount, the Region may consider (1) noncompliance with the order in question or a pattern of
noncompliance with other orders, (2) noncompliance with the requirements of RCRA or state
hazardous waste law, and (3) any pattern of disregard of the requirements contained in RCRA
regulations or other statutes.
iv. Inability to pav
In addition to considering the factors set forth in the RCPP, the Region may consider
whether payment of the full amount of the penalty would jeopardize further activities in
connection with the order.
v. Other unique factors
Other factors may apply to a specific order or respondent that may lead the Region to
make additional adjustments in the calculated penalty. For example, in some cases the Region
should consider the risks associated with proceeding to trial on the penalty claim. Another unique
factor may be the respondent's ability and commitment to perform an appropriate supplemental
environmental project.123
6. Penalties for multiple respondents
Penalties may be sought from all of the respondents who fail to comply with an order
issued under Section 7003. Since each respondent is separately responsible for its own
compliance, each respondent that willfully violates or fails or refuses to comply with the order
may be subject to the full amount of up to $5,500 a day for each violation.
7. Documentation of penalty claims
The penalty amount should be clearly documented in the case file. Justifications for
penalty calculations, including adjustments, should be clearly explained with references to the
circumstances of the specific respondent. If the Region determines that a particular case requires
deviation from these guidelines, this decision should be documented clearly and the justification
for developing the alternate penalty should be clearly stated. The Region should complete a
worksheet that explains and justifies the penalty calculated in light of the particular facts of the
case. Attachment 6 is a worksheet for documenting penalty calculations.
123 For information on supplemental environmental projects, the Regions should consult the
"Interim Revised EPA Supplemental Environmental Projects Policy" (May 8, 1995).
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ATTACHMENT 1
Delegations. Consultations, and Concurrence
The following summary is accurate as of the date of this guidance and all authorities
described below are subject to change.
The authority to settle or exercise the Agency's concurrence in the settlement of civil
judicial enforcement actions under RCRA has been delegated by the Administrator to the
Assistant Administrator for Enforcement and Compliance Assurance (AA-OECA) (Delegation
8-10-C). For judicial settlements that involve the use of Section 7003 outside the cleanup context
(for example, to impose controls on future operations at a facility), this authority was redelegated
to the Regional Counsels with a requirement for consultation with the Office of Regulatory
Enforcement (ORE) if (1) the settlement deviates from applicable penalty policies or does not
recover the full economic benefit of noncompliance, or (2) the case raises issues of national
significance.124 For judicial settlements involving cleanup, this authority was redelegated to the
Regional Administrators (RAs) with a requirement for consultation with the Director of the
Regional Support Division, Office of Site Remediation Enforcement (OSRE) if the settlement
significantly deviates from written Agency policy or breaks new ground in an important sensitive
area.
The authority to make determinations that a particular activity may present an imminent
and substantial endangerment, to issue unilateral administrative orders (UAOs), and to issue
administrative orders on consent (AOCs) has been delegated to the Regional Administrators.
However, these delegations of authority (Delegations 8-22-A, 8-22-B, and 8-22-C) may be
subject to consultation or concurrence with the appropriate division of OECA, as explained
below. First, OECA's Federal Facilities Enforcement Office retains a consultation role in all
actions in which a federal agency is a defendant or respondent.
Second, for the use of Section 7003 for cleanup work, the Regions must consult with
OSRE on the first two AOCs issued by each Region under Section 7003 alone (this requirement
has been satisfied by all Regions) and on all UAOs issued under Section 7003 alone. In addition,
for administrative orders which significantly deviate from written Agency policy or which break
new ground in an important sensitive area, the Regions must consult with the Director of
OSRE.125
Third, the use of Section 7003 outside the cleanup context is subject to consultation with
or concurrence by the Office of Regulatory Enforcement, RCRA Enforcement Division
124 "Redelegation of the Assistant Administrator for OECA's Concurrence Authority in Settlement
of Certain Civil Judicial and Administrative Enforcement Actions," Steven A. Herman (July 8, 1994).
125 "Office of Enforcement and Compliance Assurance and Regional Roles in Civil Judicial and
Administrative Site Remediation Enforcement Cases," Steven A. Herman (May 19, 1995).
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(ORE-RED) as follows:
• consultation with ORE-RED at the initiation of the action (for example, filing of
complaints or appeals);
• concurrence of ORE-RED in dispositive litigation proceedings (for example, when
pleadings are filed or hearings or trials are held); and
• consultation with ORE-RED during the settlement process (for example, when negotiating
the terms of an administrative order on consent or consent decree).126
The authority to refer requests for emergency temporary restraining orders to the
Department of Justice has been delegated by the Administrator to the RAs and the AA-OECA.
The RAs must notify the AA-OECA when exercising this authority (Delegation 8-10-D). The
authority to refer any other matter to be brought under Section 7003 to the Department of Justice
for civil judicial action has been delegated by the Administrator to the RAs and the AA-OECA
(Delegation 8-10-A). The AA-OECA must notify the appropriate Regional Administrator before
exercising this authority.
126 See "Final Approach for Implementing the July 1994 Case Redelegations in the RCRA
Regulatory Enforcement Program," Susan O'Keefe (Nov. 1, 1994).
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ATTACHMENT 2
Comparison of RCRA § 7003 to Other Enforcement and Response Authorities
This table does not provide an exhaustive list or description of every statutory authority that may be available to EPA to address
endangerments, hazards, releases, etc. Rather, it summarizes significant aspects of several authorities that are similar to RCRA § 7003.
General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
RCRA
§ 7003(a)
Abate conditions that
may present an
imminent and
substantial
endangermcnt to health
or the environment
Handling, storage,
treatment,
transportation, or
disposal of solid or
hazardous waste that
may present an
imminent and
substantial
endangermcnt
Any solid waste as
defined in RCRA
§ 1004(27), including
petroleum, or
hazardous waste as
defined in RCRA
§ 1004(5)
Any person (including any
past or present generator,
transporter, owner, or
operator) who has
contributed or is
contributing to any
tiiggering activity
Commence a civil
action to restrain from
handling, storage,
treatment,
transportation or
disposal, or to take other
necessary action
Take other action, such
as issuing an
administrative order,
necessary to protect
public health and the
environment
RCRA
§ 3008(h)
Require corrective
action or other response
measure at any
unpermitted treatment,
storage, or disposal
facility that has or
should have had interim
status, and some
facilities (hat had
interim status but no
longer do
Release of hazardous
waste into the
environment from a
facility covered by
RCRA § 3008(h)
Hazardous waste as
defined in RCRA
§ 1004(5)
EPA interprets to
cover hazardous
constituents
EPA interprets to include
the owner or operator of
the facility
Issue an administrative
order to requue
corrective action,
suspend or revoke
interim slams
authorizaiion, or require
oilier necessary response
measure
Commence a civil
action for appropriate
relief
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
RCRA
§ 3013
Require monitoring,
testing, analysis, and
reporting at hazardous
waste treatment,
storage, or disposal
facility or site to address
substantial hazard to
human health or the
environment
Presence 01 release of
hazardous waste that
may present a
substantial hazard
Hazardous waste as
defined in RCRA
§ 1004(5)
Current owner or operator
Most recent previous
owner or operator who
could be expected to know
about the presence and
potential release of the
hazardous waste, but only
if the current owner or
operator could not be
expected to know
Issue an administrative
order to require
monitoring, testing,
analysis, and reporting
Legislative history
indicates that the
standard for substantial
hazard is lower than
the standard for
imminent and
substantial
endangcrment
If EPA conducts
monitoring, testing,
analysis, or reporting,
it may order the owner
or operator to
reimbuise it for its
costs
RCRA
§ 9003(h)
Require corrective
action with respect to
any release of petroleum
from an underground
storage tank (UST)
Actual release of
petroleum from an
UST
Petroleum as defined
in RCRA § 9001(8)
Operator of the UST
In the case of an UST in
use on 1 1/8/84 or brought
into use after that date, the
owner of the UST
In the case of an UST in
use before 11/8/84 but no
longer in use on that date,
the owner of the UST
immediately before the
discontinuation of its use
Issue an administrative
order or commence a
civil action to require
corrective action
Owner/operator is
liable for the costs of
lEPA's enforcement
action
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CERCLA
§ 104(a)
Respond to actual or
substantial threat of
release of hazardous
substance
Respond to actual or
substantial threat of
release of pollutant or
contaminant which may
present an imminent
and substantial danger
to public health or
welfare
Actual or substantial
threat of release of
hazardous substance
Actual or substantial
threat of release of
pollutant or
contaminant which
may present an
imminent and
substantial danger
Hazardous substance
as defined in
CERCLA § 101(14),
including hazardous
waste under RCRA
§ 3001, but not
petroleum
Pollutant or
contaminant as
defined in CERCLA
§ 101(33), but not
petroleum
Current owners or
operators, owners or
operators at time of
disposal, generators, and
transporters
Perform or rcquue
removal or remedial
action or any other
response measuie
consistent with the
National Contingency
Plan
EPA can seek
leimburseinent of
response costs under
CERCLA ij 107
CERCLA
§ 106(a)
Abate imminent and
substantial
endangerment to public
health or welfare or the
environment
Actual or threatened
release of hazardous
substance that may
present an imminent
and substantial
endangerment
Hazardous substance
as defined in
CERCLA § 101(14),
including hazardous
waste under RCRA
§ 3001, but not
petroleum
Current owners or
operators, owners or
operators at time of
disposal, generators, and
transporters
Commence a civil
action to obtain such
relief as may be
necessary to abate the
dangei or threat
Take other action, such
as issuing an
administiative order, to
protect public health
and welfare and the
environment
EPA risks a claim
against the Hazaidous
Substance Superfund if
the PRPs believe that
they are not liable or
that EPA was arbitrary
and capricious
EPA can seek
reimbursement of
response costs under
CERCLA § 107
CWA
§311(c)
Ensure removal of a
discharge, and
mitigation or prevention
of a substantial threat of
a discharge, of oil or a
hazardous substance
Discharge or
substantial threat of
discharge of oil or
hazardous substance
Oil as defined in
CWA § 311(a)(1) or
hazardous substance
as defined in CWA
§ 31 l(a)(!4)
Includes owners and
operators
Perform oi direct
actions to remove the
discharge or to mitigate
or prevent the thieat of a
dischaige
Remove and, if
necessary, destroy a
dischaiging vessel
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CWA
§311(c)
Require action to abate
an imminent and
substantial threat to
public health or welfare
Actual or threatened
discharge of reportable
quantity of oil or
hazardous substance
that may present an
imminent and
substantial threat
Oil as defined in
CWA § 311(a)(1) or
hazardous substance
as defined in CWA
§ 311 (a)( 14)
Includes owners and
operators
Commence a civil
action to secure any
relief necessary to abate
the endangerment
Take any other action,
such as issuing an
administrative ordei,
necessary to protect
public health and
welfare
CWA
§504
Abate imminent and
substantial
endangerment to the
health or welfare of
persons
Pollution source that is
presenting an
imminent and
substantial
endangerment
Pollution source or a
combination of
sources
Any person causing or
contributing to the
pollution
Commence a civil
action to restrain any
person causing or
contributing to the
pollution to stop the
discharge of pollutants
or to take
other necessary action
"Welfare of persons"
means the livelihood of
such persons
SDVVA
§ 1431
Abate conditions that
may present an
imminent and
substantial
endangerment to the
health of persons
Contaminant that is
present in, or likely to
enter, a public water
system or underground
drinking water source,
and that may present
an imminent and
substantial
endangerment
Contaminant as
defined in SDWA
§ 1401(6)
Includes persons causing
or contributing to the
endangerment
Take action, such as
issuing an
administrative order,
necessary to protect
human health,
or commencing a civil
action for appropriate
relief
EPA may act if (In-
appropriate state and
local authorities have
not acted to protect
human health
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General Purpose
Triggering Activity
Materials Covered
Persons Covered
Response Authority
Additional Notes
CAA
Abate imminent and
Emission of air
Pollution source or
Any person causing or
Commence a civil
EPA may issue an
§303
substantial
pollutants that is
combination of
contributing to the
action to restrain any
administrative order if
endangerment to public
presenting an
sources (including
pollution
person causing or
initiating a civil action
health or welfare or the
imminent and
moving sources)
contributing to the
is not practicable to
environment
substantial
pollution from emitting
assure prompt
endangerment
air pollutants to stop the
protection
emission or to take other
necessary action
Issue an administrative
order necessary to
protect public health or
welfare or the
environment
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ATTACHMENT 3
Possible Sources of Evidence
This attachment describes possible sources of evidence related to the three basic legal
requirements for initiating an action under RCRA § 7003. Possible sources of evidence that
conditions may present an imminent and substantial endangerment include the following:
• investigative records of EPA and other federal, state, and local agencies (such as
inspection reports, sampling and analytical data and related chain of custody and quality
control/quality assurance documentation, photographs, and statements by factual and
expert witnesses);
• documents submitted, generated, or issued pursuant to RCRA (such as responses to
RCRA § 3007 information requests, comprehensive monitoring evaluations (CMEs),
Exposure Information Reports, biennial reports, facility assessments (RFAs), facility
investigations (RFIs), corrective measures studies (CMSs), and administrative and judicial
orders and supporting documentation);
• documents submitted, generated, or issued pursuant to CERCLA (such as responses to
CERCLA § 104(e) information requests, CERCLA § 103 notifications of reportable
quantities, preliminary assessments (PAs), site investigations (Sis), Hazard Ranking
System (HRS) documentation, and remedial investigation/feasibility studies (RI/FSs));
• documents submitted, generated, or issued pursuant to any other environmental statute;
• reports by or consultations with epidemiologists, toxicologists, medical doctors, and
Occupational Safety and Health Administration (OSHA) and other health and safety
inspectors regarding potential human health effects of site conditions;
• reports by or consultations with public health officials, local doctors, OSHA and other
health and safety inspectors, and affected individuals regarding actual human health effects
of site conditions;
• reports by or consultations with botanists, biologists, toxicologists, the U.S. Fish and
Wildlife Service, natural resource trustees under CERCLA, state and local government
agencies, and environmental groups regarding the actual and potential effects of site
conditions on plants and wildlife;
• statements by people who live or work in the area of the site; and
• information (such as risk data on specific contaminants) gathered by EPA during
rulemaking and other efforts.
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Possible sources of evidence that a potential endangerment stems from the handling,
storage, treatment, transportation, or disposal of any solid or hazardous waste include the
following:
• Investigative records of EPA and other federal, state, and local agencies (such as
inspection reports, sampling and analytical data and related chain of custody and quality
control/quality assurance documentation, photographs, statements by factual and expert
witnesses, statements and interview reports with current and past facility employees,
managers, etc., and records of leads or complaints by citizens);
• communications with persons responsible under RCRA § 7003 (such as records of
conferences or telephone calls, and written communications);
• documents submitted, generated, or issued pursuant to RCRA (such as RCRA § 3010(a)
notifications, Part A or Part B permit applications, responses to RCRA § 3007
information requests, CMEs, Exposure Information Reports, biennial reports, waste
manifests, Rf As, RFIs, CMSs, and administrative and judicial orders and supporting
documentation);
• documents submitted, generated, or issued pursuant to CERCLA (such as CERCLA
§ 103 notifications of reportable quantities, responses to CERCLA § 104 information
requests, PAs, Sis, and HRS documentation);
• documents submitted, generated, or issued pursuant to any other environmental statute;
• documents regarding the site or facility submitted to or maintained by other federal, state,
or local agencies (such as OSHA inspection reports and hearings, and Department of
Energy or Department of Transportation permits, licenses or proceedings); and
• information received by EPA during the development of regulations and reports to
Congress.
Possible sources of evidence that a person has contributed or is contributing to the
handling, storage, treatment, transportation, or disposal of any solid or hazardous waste that may
present an imminent and substantial endangerment include the following:
• responses to information requests issued pursuant to RCRA § 3007, CERCLA § 104(e),
or any other applicable statutory authority;
• statements of witnesses (such as employees and neighbors);
• business records (such as contracts, invoices, receipts, manifests, and shipping
documents);
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federal, state, and local waste management permits, inspection reports, and other
documents related to the site and facilities from which the wastes were transported;
deeds and leases; and
on-site identification of the person's waste.
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ATTACHMENT 4
Resources Available
Listed below are some policy and guidance documents that may assist the Regions in
determining whether conditions may present an imminent and substantial endangerment under
RCRA § 7003. Most of the documents were issued to facilitate the exercise of statutory
authorities other than Section 7003. The recommendations contained in many of the documents
therefore do not apply to endangerment determinations under Section 7003. For example, some
of these documents address quantification of risk, which is not required by Section 7003. These
documents may nevertheless be helpful and are therefore listed below.
• "Risk Assessment Guidance for Superfund, Volume I: Human Health Evaluation
Manual," which consists of the following:
~ "Part A: Interim Final" (OSWER Directive No. 9285.7-02B, December 1989);
~ "Part B: Development of Risk-Based Preliminary Remediation Goals" (OSWER
Directive No. 9285.7-01B, December 1991); and
~ "PartC: Risk Evaluation of Remedial Alternatives" (OSWER Directive No.
9285.7-01C, December 1991);
• "Supplemental Guidance to Risk Assessment Guidance for Superfund: Calculating the
Concentration Term, Volume I, Number 1" (OSWER Directive No. 9285.7-081, May
1992);
• "Risk Assessment Guidance for Superfund, Volume II: Environmental Evaluation
Manual" (OSWER Directive No. 9285.7-01 A, March 1989);
• "Endangerment Assessment Guidance" (OSWER Directive No. 9850.0-1, November
1985);
• "Endangerment Assessment Handbook" (OSWER Directive No. 9850.1, November
1985);
• "Guidance for Risk Characterization" (U.S. Environmental Protection Agency, Science
Policy Council, February 1995) (attached to Carol Browner's memorandum dated March
21, 1995 on EPA Risk Characterization Program);
• "Policy for Risk Characterization at the U.S. Environmental Protection Agency" (March
1995) (attached to Carol Browner's memorandum dated March 21, 1995 on EPA Risk
Characterization Program);
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"Framework for Ecological Risk Assessment" (EPA/630-R-92-001, February 1992);
"RCRA Ground-Water Monitoring Technical Enforcement Guidance Document"
(EPA/530-SW-86-055, September 1986);
"RCRA Ground-Water Monitoring: Draft Technical Guidance" (EPA/530-R-93-001,
November 1992); and
"Health and Safety Audit Guidelines: SARA Title I, Section 126" (EPA/540-G-89-010,
December 1989).
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ATTACHMENT 5
Judicial Relief and Judicial Review
I. JUDICIAL RELIEF AVAILABLE UNDER SECTION 7003
A. Types of Injunctions
There are three types of injunctions that a court may issue in a 7003 case: temporary
restraining orders, preliminary injunctions, and permanent injunctions. In considering appropriate
injunctive relief, Regions should consult closely with DOJ.
1. Temporary restraining orders
A temporary restraining order (TRO) is an order issued by a judge that prohibits specified
activity or maintains the status quo until the court can hear the merits of the issue. An example is
a temporary ban on dumping tailings containing hazardous wastes into a lake until the court can
hold a hearing on the issue. Unlike a preliminary or permanent injunction, a TRO may be issued
without an adversary hearing and lasts only until such a hearing can be held, a maximum of ten
days. If necessary, a TRO may be issued without notice to the adverse party. TROs are usually
issued only to prevent immediate, irreparable injury that would occur before the judge can hold a
hearing on a preliminary injunction.
When asking a court to exercise its discretion to issue a TRO, the United States is not
required to comply with the provision of Rule 65(c) of the Federal Rules of Civil Procedure,
which requires a private party seeking a TRO to give "security" to indemnify the party subject to
a TRO for damages incurred if wrongfully restrained.
2. Preliminary injunctions
A preliminary injunction is also a judicial order requiring a person to take or refrain from
specified action. A preliminary injunction is issued before a final judgment on the merits and
usually is in effect only until a trial on the merits can be held. An example is postponing a trial
burn at an incinerator that is alleged to pose an imminent and substantial endangerment until a trial
can be held on the issue of whether the incinerator can be operated safely. A preliminary
injunction may be unnecessary if a trial can be held before the threatened harm occurs.
There is a heightened standard for judicial action before the merits of the case can be
heard and courts may thus merge the preliminary injunction hearing with a hearing on the merits
of the case.1 The United States may therefore seek a preliminary injunction under Section 7003
when it wishes to protect the environment or the public from threatened irreparable injury, and
preserve the court's ability to render a meaningful decision on the merits. A preliminary
1 See Rule 65(a)(1) of the Federal Rules of Civil Procedure.
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. 1.
injunction can preserve the court's ability to render a meaningful decision either by maintaining
the status quo until the court may grant full relief after a hearing, or by returning the parties to the
status that existed before the dispute arose.
3. Permanent injunctions
A permanent injunction is a judicial order that requires a person to take or refrain from
specified action. For example, a court order requiring a facility to shut down an incinerator until
it has obtained the necessary permits is a permanent injunction. A permanent injunction does not
necessarily last indefinitely (i e., it may just be for one discrete action that is not continuing in
nature); it is "permanent" because it embodies the court's ultimate decision on the matter
following a full trial of the case.
In cases of environmental harm, the United States will often want to seek a permanent
injunction, particularly when restraints on future actions are included in the relief sought. The
government may seek both preliminary and permanent injunctions (or a TRO, a preliminary, and a
permanent injunction) to address the same endangerment when the exigency of the situation
dictates immediate action from the court but long-term relief is also appropriate.
II. JUDICIAL REVIEW OF ADMINISTRATIVE ORDERS
A. Unavailability of Pre-enforcement Review
It is EPA's position that a court cannot review the validity of an administrative order
issued under Section 7003 until the United States goes to court to enforce the order. Although
RCRA does not expressly bar such "pre-enforcement review" or otherwise address the timing of
judicial review of orders issued under Section 7003, general principles of administrative law
preclude pre-enforcement review. At least one court has found that due process is satisfied by an
opportunity to confer with the Agency and the opportunity to challenge liability during a judicial
enforcement action.2 This ruling is consistent with CERCLA cases decided before the October
1986 amendment of CERCLA, which added the Section 113(h) bar on pre-enforcement review.
In most of these early CERCLA cases, the courts denied pre-enforcement review before the bar
was made explicit.3
Respondents may raise due process issues to justify pre-enforcement review, arguing that
it is unfair to impose an order without providing a formal adjudicatory hearing. At least one court
has rejected this argument.'' To maximize the chances of successfully defending a Section 7003
2 United States v Valentine, 856 F. Supp. 621, 627 (D. Wyo. 1994).
3 See Solid State Circuits, Inc. v. U.S EPA, 812 F.2d 383, 386 n. 1 (8th Cir. 1987) (cases cited).
4 See Valentine, 856 F. Supp. at 627. See also Amoco Oil Co. v. United States, No. 96 N 1037
(D. Colo. March 28, 1997) (denying pre-enforcement review of an order issued under RCRA § 3008(h)).
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- 3 -
order against this type of challenge, EPA should maintain a comprehensive administrative record
file and provide respondents with an opportunity to consult with the Agency regarding the
applicability, validity, and terms of the order. Courts in the context of RCRA § 7003 and under
other similar statutes have found that due process is served by the availability of a sufficient cause
defense.
B. Standard and Scope of Review of Administrative Orders
RCRA does not contain an express statutory standard for judicial review of administrative
orders. Under these circumstances, general principles of administrative law apply. As outlined
below, review of agency decisions regarding endarigerment determinations and remedy selection
generally is on the administrative record and courts will overturn an agency order only if it is
deemed "arbitrary and capricious." The arbitrary and capricious standard gives administrative
agencies broad discretion in deciding how to administer the law. In addition, courts will generally
examine whether proper procedures were followed, and will also address due process concerns.
Section 706 of the Administrative Procedure Act (APA), which provides for review of
agency actions, including agency orders, generally limits review of agency action to review of the
administrative record compiled by the agency.5 To help avoid review of Agency decision based
on information beyond that contained in the administrative record, Regions should ensure that
administrative record supporting their Section 7003 orders is complete and demonstrates that the
Agency considered all relevant factors. In addition, the Region should ensure that there is no
basis for a respondent to argue that the Agency failed to follow proper procedures or that it
engaged in improper behavior or acted in bad faith. If the record is inadequate, courts may
remand the decision back to EPA.
Under APA § 706, a court's review of final agency actions will look to whether those
actions were "arbitrary and capricious'," unless Congress has provided another standard of review
"When the EPA asks a court. . . to enforce a lawful (nonarbitrary) EPA order, the court must
enforce it."6 Although there do not appear to be any cases that address the standard of court
review of orders issued under Section 7003, the arbitrary and capricious standard has been
applied to review of a RCRA § 3013 order.7 This supports application of the arbitrary and
capricious standard to EPA decisions embodied in Section 7003 orders as well. Further, this case
law is consistent with general principles of administrative law which support the application of the
"arbitrary and capricious" standard to decisions within the particular expertise of the Agency.
5 See Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402, 414-417 (1971). See also United States v. Seafab Metal Corp., 28 Env't Rep. Cas. (BNA)
1231, 1233 (W.D. Wash. 1988) (RCRA § 3013 order).
6 United States v. Ottati & Goss, 900 F.2d 429, 433-34 (1st Cir. 1990) (CERCLA § 106 case).
7 Seafab Metal, 28 E.R.C. at 1233.
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- 4 -
Finally, courts may consider whether EPA has afforded the respondent(s) due process, as
required by the Constitution. Due process does not necessarily mandate an evidentiary hearing
prior to issuance or enforcement of the order. Rather, the requirement is flexible and requires that
respondents have an opportunity to comment on the evidence "at a meaningful time, in a
meaningful manner."8 Although there does not appear to be a clear standard for how much
process is enough, the Regions should at a minimum ensure that the respondent has the
opportunity to comment on the order and to confer with the Agency regarding compliance with
the order.
8 Mathews v. Eldridge, 424 U.S. 319, 333 (1976); United States v. Seymour Recycling Corp., 679
F. Supp. 859, 864 (S.D. Ind. 1987) (citation omitted).
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WORKSHEET CONTAINING SITE-SPECIFIC INFORMATION
IS ENFORCEMENT CONFIDENTIAL -- DO NOT RELEASE
ATTACHMENT 6
WORKSHEET FOR DOCUMENTATION OF PENALTY CLAIMS
Date of calculation:
Site name and location:
Case name:
Enforcement team members and telephone numbers:
Stepl: Assign Daily Penalty Amount
Justification for harm classification (review the factors and definitions found in Section VIII.B.2~)
List harm classification and list the extent of deviation classification .
List dollar amount of penalty selected from appropriate cell in matrix $ .
Describe potential for harm to health or the environment:
Describe harm to the enforcement program:
Justification for the extent of deviation classification Creview the factors and definitions found in
Section VIII.B.2.)
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WORKSHEET CONTAINING SITE-SPECIFIC INFORMATION
IS ENFORCEMENT CONFIDENTIAL - DO NOT RELEASE
Describe the extent and type of work performed and/or not performed:
Describe the quality of the work performed:
Describe the timeliness of work:
Justification for choice of penalty within range of matrix box selected:
Daily penalty amount = $
Step 2: Calculate Penalties for Multi-Day Violations
i. Period of noncompliance is (date) to (date). Number of days of
noncompliance is .
Justification
ii. Daily penalty amount (from Step 1) $ x Number of days of noncompliance
= Penalties for multi-day violations = $ .
- 2 -
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WORKSHEET CONTAINING SITE-SPECIFIC INFORMATION
IS ENFORCEMENT CONFIDENTIAL -- DO NOT RELEASE
Step 3: Determine Economic Benefit of Noncompliance
Justification — Use BEN computer model where appropriate and attach BEN model printout or. if
BEN was not used, explain how economic benefit determination was made:
Economic benefit of noncompliance = $
Step 4: Apply Adjustment Factors
i. Good faith efforts to comply -- reduction of S or percent reduced
Justification:
ii. Degree of willfulness or negligence — increase of $ or percent increased
Justification:
iii. History of noncompliance -- increase of $ or percent increased
- 3 -
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Justification:
WORKSHEET CONTAINING SITE-SPECIFIC INFORMATION
IS ENFORCEMENT CONFIDENTIAL -- DO NOT RELEASE
iv. Inability to pay — reduction of S or percent reduced
Justification:
v. Other unique factors -- reduction of S or percent reduced ; or increase of
S or percent increased .
Justification:
Total reduction or increase based on adjustment factors = $ (or total percent if
not initially calculated as dollar amount = %). It may be necessary to break out the
reduction or increase to the gravity portion of the penalty claim $ and the economic
benefit portion of the penalty claim $ if the strength of the litigation case differs for
each portion of the claim. The justification should state clearly whether the concern is for the
gravity portion or the economic portion or both. Adjustments may be specified as percentages of
the penalties for multi-day violations and then calculated as dollar amounts.
Justification for breakout, if any:
-4 -
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WORKSHEET CONTAINING SITE-SPECIFIC INFORMATION
IS ENFORCEMENT CONFIDENTIAL -- DO NOT RELEASE
Step 5: Calculate Total Penalty Settlement
Penalties for multi-day violations (from Step 2) S
+ Economic benefit of noncompliance (from Step 3) +
± Total reduction or increase based on adjustment factors
(from Step 4) ±
Total penalty settlement $.
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.1*0 ««>¦,
** T- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL 3 C 1993
MEMORANDUM
SUBJECT: Guidance on Use of Section 504, the Emergency
Powers Provision of the Clean Water Act
? r*r Uator ^ 1
FROM: Frederick F. Stiehl
Enforcement Counselfo^ Water
Richard G. Kozlowski
Director, Enforcement Division
OWEC
TO: Regional Counsels
Regions I-X
Water Division Directors
Regions I-X
Attached to this memorandum is the Agency's final
guidance on use of Section 504 of the Clean Act. This
emergency provisionprovides an important supplementary legal
tool for addressing public health and welfare threats involving
waters of the United States. This guidance should promote
greater use of Section 504 by providing detailed information on
criteria for emergency use of the section. While we encourage
appropriate use of Section 504, we urge the Regions to review
this memorandum carefully because the case law and legislative
history for the section is limited.
Section 504 clearly authorizes EPA to bring suit to
take necessary action " [n]otwithstanding any other provision of
the Clean Water Act." As such, it plainly authorizes abatement
action against both permitted and non-permitted discharges:
These could include Section 504 actions to-require clean-up where
exceedance of water quality standards results in beach closings.
We would expect, however, that dischargers may raise Section
402 (k) permit-as-a-shield defenses in certain Section 504
actions, This underscores the necessity of selecting cases with
the strongest fact patterns when the Agency is seeking to use
this emergency authority against those in compliance with their
permit terms.
A draft of this guidance was sent to the Regions for
comment on August 11, 1992. We received comments, from a number
of Regions, as well as from the office of General Counsel and the
Prinud on FCcydad Papmr
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2
Department of Justice. Every effort has been made to include the
comments received whenever possible.
This guidance has been prepared by Maria Brin, Avi
Garbow (both of the Office of Enforcement) , and Ann Prezyna (of
the Office of Regional Counsel in Region X). Questions
concerning the guidance may be directed to them at the telephone
numbers listed on the last page of the guidance document.
Attachment
cc: Scott Fulton
Robert Van Heuvelen
Michael Cook
Susan Lepow
John Cruden
Joel Gross
ORC Water Branch Chiefs (I-X)
Regional Water Branch Chiefs (I-X)
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£ \
\MJ
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF ENFORCEMENT
GUIDANCE ON THE USE OF SECTION 504 OF THE CLEAN WATER ACT
TABLE OF CONTENTS
SUMMARY 1
I STATUTORY BACKGROUND 2
II. CRITERIA FOR USE OF SECTION 504 5
A. Evidence 5
1. Types of Evidence 5
2. Section 504 v. Section 309 5
3. Proof With Certainty Not Required 6
B. Elements of A Prima Facie Case 7
1. A Pollution Source or Combination of Sources . 7
a. Definition of Pollution Source 7
b. Actual Discharge Not Required 9
2. causing or Contributing to the Discharge of
Pollutants 9
3. Is Presenting an Imminent and Substantial
Endangerment 10
Continuous Discharge Not Required 10
E. Actual Harm or Immediate Endangerment Not
Required . 11
,c. Quantifiable Endangerment Not Required . . 12
d. Evidence Must Support Current Threat. . .13
4- Health or Welfare of Persons 14
5. Permit as a Shield 15
III. RELIEF AVAILABLE UNDER SECTION 504 16
IV. CIRCUMSTANCES APPROPRIATE FOR THE USE OF SECTION 504 . . 18
A Contaminated Sediments 18
B. Narrative Water Quality Standards 20
C. Pretreatment 21
D. Oil and Hazardous Substance Spills 22
E. Stormwater Discharges by Municipalities Under 100,000
Population 22
F. Nonpoint Source Pollution 23
G. Toxics 2 6
H. csos 27
CONCLUSION 2 8
Printed on ntcyded Paoer
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1
SUMMARY
Section 504 is the Emergency Powers provision of the Clean
Water Act ("CWA" or "Act") This provision provides the
Environmental Protection Agency ("EPA" or "Agency") with an
important supplementary tool for addressing public health and
welfare threats involving waters of the United States. This
guidance is intended to encourage more widespread use of EPA's
Section 504 authority, where appropriate, by describing
situations where this authority may appropriately be applied and
by providing information on how to request issuance of an
emergency order.. The Agency may use Section 504 to address a
number of important enforcement issues, including problems
presented by beach closings, fish kills, contaminated sediment's
and nonpoint sources. Section 504 may be used as a backup in the
implementation of State narrative water quality criteria, and as
a means to counter the Permit-as-a-shield defense.
This guidance includes sections discussing (1) the statutory
background of Section 504, (2) criteria for use of Section 504,
(3) relief available under Section 504, and (4) circumstances
appropriate for use of Section 504. There are many potential
environmental benefits from increased use of Section 504, and
this guidance is intended to facilitate its use in appropriate
circumstances.
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2
I. STATUTORY BACKGROUND
Codified at 33 U.S.C. § 1364, Section 504 provides:
Notwithstanding any other provisions of this chapter,
the Administrator upon.receipt of evidence that a
pollution source or combination of sources is
presenting an imminent and substantial endangerment to
the health of persons or to the welfare of persons
where such endangerment is to the livelihood of such
persons, such as inability to market shellfish, may
bring suit on behalf of the United States in the
appropriate district court to immediately restrain any
person causing or contributing to the alleged pollution
to stop the discharge of pollutants causing or
contributing to such pollution or to take such other
action as may be necessary.
Section 504 was added to the Federal Water Pollution Control
Act by the 1972 amendments to that Act, known as the Clean Water
Act: Pub. L. No. 92-500, § 2, 86 Stat. 888 (effective 10/18/72) .
There is very little legislative history or case law on Section
504, which was patterned after Section 303 of the Clean Air Act
("CAA") , 42 U.S.C. § 7603'
"The Conference Report states:
Section 504 authorizes the Administrator to bring sued
on behalf of the United States if he determines that a
pollution source presents an imminent and substantial
danger to health. The section is similar to section
303 of the Clean Air Act.
Senate Comm. on Public Works, 93d Cong., 1st Sess., A Legislative
History of the Water Pollution Control_Act Amendments of 1972, at
328 (Comm. Print 1973).
In addition to Section 303 of the CAA, the emergency powers
provisions of other environmental statutes include Section 106(a)
of the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C. § 9606(a); Section 7003 of
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
§ 6973; and Section 1431 of the safe Drinking Water Act ("SDWA"),
42 U.S.C. § 300i.
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3
Since its enactment, only 15 actions have been brought
citing Section 504 as grounds for relief.' In each case, Section
504 merely was appended to complaints using provisions of other
environmental statutes as the primary enforcement authority.
Given the absence of direct legislative or judicial guidance on
Section 504 itself, and the presence of substantial guidance and
case law on the comparable emergency powers provisions of other
environmental statutes, these other provisions may be useful in
determining when and how to apply Section 504. However, as
discussed below, see e. g, pp. 14-15, there are differences
between the language of Section 504 and the emergency powers
provisions of the other statutes that should be noted:
The legislative history of Section 7003 of RCRA discusses
the history of the several environmental endangerment provisions.
This discussion is the most useful of all the above-mentioned
guidances in interpreting the applicability of Section 504.'
Like other imminent and substantial endangerment
2In June, 1993, Region IV filed a Clean Water Act Section
504 action against Metro-Dade's (FL) Water and Sewer Authority
alleging that the threat-of failure of its corroding and
antiquated pipeline carrying 150 million gallons of raw sewage
across Biscayne Bay constituted an imminent and substantial
endangerment to the health and welfare of local residents. The
complaint also alleged that the numerous spills from other parts
of the system pose an imminent and substantial endangerment, as
well as constituting Section 309 violations.
1 Where comparable or identical terms are used in two
different statutes, it is appropriate to give them the same
interpretation. See note 14, below.
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4
provisions in environmental statutes (e.g. section 504
of the Clean Water Act, section 303 of the Clean Air
Act, and section 1431 of the Safe Drinking Water Act),
section 7003 is essentially a codification of common
law public nuisance remedies. The Congress made this
intent clear as early as 1948 when, in section 2(d) of
the Water Pollution Control Act (the forerunner of
present-day imminent hazard provisions), it expressly
d e clared that the pollution of interstate
waters ...which endangers the health or welfare of
persons.. . is hereby declared to be a public nuisance
and subject to abatement as herein provided' and
authorized the appropriate Federal official to request
the Attorney General to bring suit on behalf of the
United States 'to secure abatement of the pollution. .
. . Section 7003, therefore, incorporates the legal
theories used for centuries to assess liability for
creating a public nuisance (including intentional tort,
negligence, and strict liability) and to determine
appropriate remedies in common law history attached to
terms such as 'imminent' and 'substantial1, as well 'as
more recent legislative history."
section 504 emergency powers complement the civil and
administrative enforcement mechanisms found in Sections 309, 311,
and in other provisions of the Clean Water Act. The authority to
issue compliance orders and assess penalties administratively is
explicitly provided for elsewhere in the CWA, but not in Section
504.. The aforementioned emergency powers provisions in other
environmental statutes,'conversely, explicitly contain authority,
to issue administrative orders, and may be distinguished on that
basis
"Senate Comm. on Environment and Public Works, 102d Cong.,
1st Sess., A Legislative History of the Solid Waste Disposal Act,
as Amended, at 939 (Comm. Print 1991) .
5See e.g. §106(a), CERCLA, in which the President may
require the Attorney General to seek such relief as may be
necessary; or he may "take other action under this section
including, but not limited to, issuing such orders as may be
necessary to protect public health and welfare and the
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5
II. CRITERIA FOR USE OF SECTION 504
A. Rvi denne
1. Typp.g nf Rvidpnrp
All emergency powers provisions are triggered by receipt of
information (in the case of the SDWA) or evidence (all other
statutes) of an "imminent and substantial endangerment." For EPA
to exercise the enforcement authority granted in Section 504,
there must be evidence that a pollution source or sources is
presenting an imminent and substantial endangerment to the health
or welfare of persons. The evidence may be documentary,
testimonial, or physical.. A Clean Water Act Section 306
information request may be used to gather information not readily
available through other means. See 33 U.S.C. § 1318(a)(4).
Discharge monitoring reports and monthly operations reports may
be used as evidence. Nonpoint source management plans, as well
as nonpoint source assessment reports and Section 305(b) reports
may also be used-to identify sources of pollution.
2. Serfiori 504 v. Spnt.ion 309
The enforcement authority under Section 504 is meant to
supplement enforcement powers granted under Section 309. Section
309 of the CWA authorizes a civil action for penalties and
injunctive relief upon a finding that a permit limit, categorical
standard, regulation, or other statutory provision has been
violated. Without proof of a violation of a statutory provision
or other noncompliance, liability will not be found under Section
environment." 42 U.S.C. §9606(a) (emphasis added).
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6
309.
In contrast to Section 309, a Section 504 action is
appropriate if EPA receives evidence showing an imminent and
substantial endangerment to a person's health or welfare
regardless of compliance with a permit or regulation promulgated
under the Act. Both permitted and unpermitted dischargers fall
within the scope of Section 504. a Section 504 action may also
be used in conjunction with a Section 309 enforcement action if
an imminent endangerment exists while a Section 309 action is
pending.
3. Proof With Certainty Not Required
Proof with certainty is not required before taking action
under Section 504.4 Rather, finding an endangerment involves an
assessment of the risk of harm that may be based on medical and
scientific conclusions lying on "the frontiers of scientific
knowledge.1,7
[A risk may be assessed] from suspected, but not
completely substantiated, relationships between facts,
from trends among facts, from-theoretical projections,
from imperfect data, or from probative preliminary data
not yet certifiable as "fact.
6 United States v. Vertac Chemical Corporation 439 f.
SUPP. 870, 885 (E.D.Ark. 1980) . (citing Reserve Mini& co. v. EPA.
514 F. 2d 492, 529 (8th Cir. 1975)).
7 Id. at 875 (citing Industrial Union Department. . AFT,-CTO
v. Hodgson, 162 U.S.App.D.C. 331, 499 F.2d 467, 474 (1974)).
'id. at 885 (citing Ethyl Corporation v. EPA, 541 F.2d 1,
11 (D.C. Cir. 1976)). In so finding, the court extended the
reasoning of the Reserve Mining case, which dealt with the lesser
risk of harm encompassed by the endangerment standard of the pre-
1972 Federal Water Pollution Control Act; to the more stringent
"imminent and substantial" endangerment standard required by the
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7
Where proof of actual harm with certainty is impossible, a low
probability of-harm from exposure to a pollutant may justify
relief under Section 504 so long as the harm itself would be
serious. Moreover, the evidence does not necessarily have to
prove causation of the pollution*?ut a standard of contribution
is sufficient to support the use of a Section 504 action.
B. Elements of A Prima Facie Case
Broken down into its critical elements, the evidence must
show that:
(a) a pollution source or combination of sources
(b) causing or contributing to the discharge of pollutants
(c) is presenting an imminent and substantial endangerment
(d) to the health or welfare of persons.10
Each of these elements is examined below.
1. A Pollution Source or Combination of Sources
a. Definition of Pollution Sonrrp
The statutory predicate to action under Section 504 is the
receipt of evidence that a "pollution source or combination of
sources" is presenting an imminent and substantial endangerment
to the health or welfare of persons.' "Pollution" is defined
broadly under Section 502(19) of the Act as "man-made or man-
induced alteration of the chemical, physical, biological, and
radiological integrity of water." 33 U.S.C. §1362(19). While
1972 Amendment s.
9 Id.
10 See TTniteH st-at-pg v Conservation Chemical Company. 523
F.Supp. 125, 126 (W.D.Mo. 1981).
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8
"pollution source" is not defined in the statute, it seems
reasonable to read this term as synonymous with point and
nonpoint sources of pollution.
Section 504 authorizes a district court to
restrain any person causing or contributing to the alleged
pollution to stop the discharge of pollutants causing or
contributing to such pollution, or to take such other action
as may be necessary.
Taken in conjunction with the broad reach of "a pollution source
or combination of sources, " this mandate suggests that Section
504 may be used to address pollution from nonpoint sources as
well as from point sources.12 Nonpoint source management
'programs submitted under Section 319 of the Clean Water Act, as
well as NPDES permits, and monitoring and reporting information,
may be used to identify categories, subcategories, or particular
point or nonpoint sources or combinations of sources causing or
contributing to the alleged pollution. The self-monitoring and
reporting requirements in Section 308 of the CWA provide an
11 Section 201(c), the only other provision for the CWA using
the term "pollution source, " clearly refers to point and non-
point sources:
To the extent practicable, waste treatment management shall
be on an area wide basis and provide control or treatment of
all point and non-point sources of pollution, including in
place or accumulated pollution sources.
12 Unfortunately, there is no case law or legislative history
on the meaning of "pollution, source." Note that Section 504
authorizes suit "to stop the discharge of pollutants." Section
502 defines the term "discharge of a pollutant" to include only
point source discharges. See Part II B(l) (b) . Therefore, a
Section.504 action against a non-point source should rely upon
the authorization to "take-such other action as may be
necessary."
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9
evidentiary basis for determining what pollution sources these
may be.11
b. Actual Discharge Not Required
"Discharge of a pollutant" is defined in Section 502(12) of
the Act as the addition of a pollutant to navigable waters from
any point source. 33 U.S.C. § 1362(12). Section 504 authorizes
restraining point source dischargers, as well as nonpoint
sources, causing or contributing to the pollution. See,
definition of "pollution source" at Part II B(I) (a) . Section
504 is triggered when the Administrator receives evidence that a
pollution source or combination of sources is presenting an
imminent and substantial endangerment to the health or welfare of
persons. Action under Section 504 should-be taken when a source
of a pollutant is presenting a threat to the health or welfare of
persons, whether or not the pollutant has actually been
discharged or released. See definition of "imminent" at Part II
B(3) (b) below.
2. Causing or Contributing to the Discharge of
Pollutants
The statutory language makes plain that evidence that a
pollution source is causing or merely "contributing" to the
pollution is sufficient to support the use of a Section 504
action. The legislative history of RCRA Section 7003 emphasizes
"Section 308 applies "[W]henever required to carry out the
objective of this chapter, including but not limited to... (4)
carrying out (section] .... [504 of this Act] . "
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the broad reach of this term:'5
Moreover, because Section 7003 focuses on the abatement
of conditions threatening health and the environment
and not a particular human activity, it has always
reached those persons who have contributed in the past
or are presently contributing to the endangerment,
including, but not limited to generators, regardless of
fault or negligence.15
3. IS Presenting an Imminent and Substantial
Endangerment
a. Continuous Discharge Not Required
Section 504 applies to all releases or potential releases of
pollutants. The statutory language expressly states that the
Agency may take action when EPA receives evidence that a
pollution source or sources "is presenting an imminent and
substantial endangerment." when faced with language nearly
identical to this in Section 7003 of RCRA before its amendment in
1984, a district court held that no "continuing acts" limitation
should be read into that remedial legislation.16 The court
reasoned that the statute on its face does not discriminate
between cases of a present harm caused by past disposal practices
14 Interpretations of language in the emergency power
provision of one environmental statute may be used to interpret
comparable language in another environmental statute. See, for
example. United States v. Reilly Tar & Chemical Corp 546
F.Supp. 1100, 1109-1110 (D. Minn. 1982); Ethyl Corp v. EPA, 541
F.2d 1, 17 (D.C. Cir. 1976) (en banc) , cert, denied , 426 U.S. 941
(1976)
"H. .Rep. No. 1133, 98th Cong., 2d Sess. 119 (1984). See
also. United States v. Northeastern Pharmaceutical & Chemical
Co.. Inc.. 810 F.2d 727, 740 (1986);
" United States v. Solvents Recovery Services, 4 96 F.Supp.
1127, 1139-1141 (D.Conn; 1980) .
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and cases of a present harm caused by ongoing disposal
practices.17 The same reasoning and conclusion would hold true
for Section 504. Thus, Section 504 would apply to inactive
facilities if a continuing hazard exists.
b. Actual Harm or Immediate Endangerment Not
Required
Evidence supporting the use of Section 504 must show a
pollution source or sources is presenting an "imminent and
substantial endangerment to the health or welfare of persons.
The legislative history of this language indicates the Agency may
take preventative action:
The bill would grant new authority to the Administrator to
take remedial action in case of a water pollution episode.
. . . When the prediction can reasonably be made that such
elevated levels [of pollution] could be reached even for a
short period of time --that is that they are imminent-- an
emergency plan should be implemented to reduce or terminate
the discharge of pollutants and prevent the occurrence of
17 Id This conclusion is confirmed by the legislative
history the 1984 RCRA amendments. jn amending the language of
Section 7003, Congress indicated that:
the section was intended and is intended to abate
conditions resulting from past activities. Hence the
lower court decisions in United States v. Wade. 546
F.Supp. 785 (E.D. Pa. 1982) and United States v. Waste
Industries.No. 80-4-Civ-7 (E.D. N.C. Jan 3 . , 1983),
which restricted the application of Section 7003 [to
ongoing activities] , are inconsistent with the
authority of the section as initially enacted and with
these clarifying amendments.
(Emphasis supplied.) Senate Comm. on Environment and Public
Works, 102d Cong., 1st Sess.,A Legislative History of the Waste
Disposal Act, As Amended, at 1524-1525.(Comm;.Print: 1991).
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12.
substantial endangerment. "
An endangerment under Section 504 may be an immediate or a
long-term problem. An endangerment is "imminent" and actionable
when it is shown that it presents a threat to human health or
welfare, even if it may not be fully manifest for many years--as
may be the case with cancer and other effects.1' T^e Court j_n
Reilly Tar clearly rejected the contention that the analogous
RCRA Section 7003 was limited to an immediate emergency. The
phrase "imminent and substantial endangerment" underscores the
preventive nature of the provision., Evidence of actual harm is
not required. Thus, Section 504 may be used to address a
threatened harm before actual harm is evident.
C. Quantifiable Endangerment Not Required
An imminent harm or endangerment must only pose a reasonable
cause for concern for the public health or welfare in order to
constitute an "imminent and substantial endangerment" and warrant
the invocation of Section 504 authority.20 Discussing the
meaning of the word "substantial" as found in the "imminent and
substantial endangerment" phrase in Section 106 of CERCLA; the
'* Senate Comm. on Public Works, 93d Cong., 1st Sess., A
Legislative History of the Water Pollution Control Act Amendments
of -1972, at 1496-1497 (Comm. Print 1973).
"See United States v. Reilly Tar & Chemical Corp., 546
F.Supp 1100, 1110 (D.Minn. 1982)
30See U.S. v. Vertac Chemical Corp., 489 F. Supp. at 885
(Court held that if EPA could show that the release of dioxin by
the defendant presented a **reasonable medical concern over public
health, " then an imminent and substantial endangerment to health'
would exist under §594 of the Clean Water Act and §7003 of RCRA).
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court in U.S. v. Conservation Chemical Co., 619 F.Supp. 162, 194
(D.C. Mo.1985) illustrates the appropriate determinative factors
to be accorded that term:
[T] he word "substantial" does not require quantification of
the endangerment (e.g.,proof that a certain number of
persons will be exposed, that "excess deaths" will occur, or
that a water supply will be contaminated to a specific
degree). Instead, the decisional precedent demonstrates
that an endangerment is substantial if there is reasonable
cause for concern that someone or something may be exposed
to a risk of harm by a release or a threatened release of a
hazardous substance if remedial action is not taken, keeping
in mind that protection of the public health, welfare and
the environment is of primary importance. A number of
factors (e.g., the quantities of hazardous substances
involved, the nature and degree of their hazards, or the
potential for human or environmental exposure) may be
considered in determining whether there is reasonable cause
for concern, but in any given case, one or two factors may
be so predominant as to be determinative of the issue.
The substantiality requirement does not limit the Agency's
authority to invoke Section 504 to extreme and extraordinary
pollution episodes. While purely speculative, or scientifically
and medically insignificant, harms should not be addressed
through this emergency authority, Section 504 may be used to
correct concentration levels of pollutants in water or sediments
which represent a reasonable cause for concern for the health or
welfare of those exposed.
d. Rvi Hpncp Must Support Cnrrpnt Thrpat-
The evidence must support a contemporaneous cause for
concern for the health and welfare of persons, or a current
threat to health or welfare. Section 504 authorizes action when
there is evidence that a pollution source or combination of
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14
sources is presenting an imminent and substantial endangerment.2'
Taken in conjunction with the preventative and prospective
meaning of "imminent and substantial," the evidence must show
that there currently exists a reasonable cause for concern for
the health or welfare of persons. While the actual harm may not
have occurred yet,the present threat of such harm must be
substantiated by the evidence.
4. Health or Welfare of Persons
The emergency provision of each environmental statute varies
as to what interests are protected. The CWA protects the public
health and welfare. The CAA an^ CERCLA permit action when the
endangerment is to the public health, welfare or to the
environment. RCRA requires a determination that the endangerment
is to the health of persons or the environment. Use of the
emergency powers of the SDWA may occur when the health of persons
may be endangered or when necessary to protect an underground
source of drinking water.
Section 504 requires evidence of an endangerment:
to the health of persons or to the welfare of persons
where such endangerment is to the livelihood of such
persons, such as inability to market shellfish.
At the very least, Section 504 may be used to address long
21Both Section 504 and Section 303 of the Clean Air Act are
based upon evidence that a pollution source or combination of
sources is presenting an imminent and substantial endangerment.
This should be distinguished from the thresholds found in Section
106(a) of CERCLA, section 7003 of RCRA, and Section 1431 of SDWA,
which are based upon a showing of evidence or information that
the pollution sources may present an imminent and substantial
endangerment. (Emphasis add e d ) .
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15
term threats to health. The discharge of a pollutant constitutes
an. imminent and-substantial endangerment to the health of persons
when there is a reasonable medical concern over the public health
based on an acceptable, albeit yet unproven, theory that the
pollutant may be, for example, teratogenic; mutagenic, Ototoxic ,
or carcinogenic."
The statutory language permitting Agency action when an
endangerment is presented to the "welfare" of persons allows the
Agency to address a wide variety of situations affecting a
person's livelihood. Under CERCLA, "public welfare" may
encompass "health and safety, recreational, aesthetic,
environmental and economic interests."21 Depending on the
contaminated water body, these same interests may impact a
person's livelihood and fall under the umbrella of Section 504 as
well. For example, harm to the tourist industry or sport
fishermen caused by polluted waters or sediments may impact
people's livelihoods and therefore be subject to action under
Section 504. See Part IV below.'
t) . fermiL =.0 ~
For purposes of enforcement actions under Sections 305 and
505 of the CWA, Section 402(k) provides a limited defense to
alleged violations of Sections 301, 302, 307 and 403 of the Act.
Dischargers of pollutants from point sources that are in
" Vprr.ar Chemical Corn. 489 F. Supp. at 884-886.
21U_S 2£ Conservation Chemical Co.. 619 F. Supp . 162, 192
(D.C. Mo. 1985).
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compliance with an NPDES permit may attempt to argue that Section
402(k) of the Act shields them from liability under Section 504
as well.
On its face, however, Section 402(k) does not foreclose suit
for injunctive relief under Section 504. Moreover; the clear
statutory language of Section 504 states that Section 504 applies,
"notwithstanding any other provisions of (the CWA]." Thus, a
Section 504 action may be used to defeat the permit as a shield
defense.
III. RELIEF AVAILABLE UNDER SECTION 504
Section 504 is the only "imminent hazard" authority which
requires pre-response judicial proceedings. reli-ef naY only
be provided by a district court, a judicial referral is required
to initiate a Section 504 action. Although the litigation
process may delay emergency action, the tool is nevertheless
quite powerful to address hazards that cannot, otherwise be
addressed. A Temporary Restraining Order or Preliminary
Injunction may be appropriate, depending upon the nature and
extent of the pollution emergency.
Upon receipt of evidence of an imminent and substantial
endangerment, the Agency may bring suit to restrain "any person"
causing or contributing to the pollution to stop the discharge of
pollutants. Thus, Section 504 authorizes a court to enjoin a
large universe of potential defendants, not just an NPDES permit
holder, owner or operator of a pollution source.
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section 504 also authorizes such "other action as may be
necessary." Other action may include, but is not limited to,
requiring affirmative treatment or controls to be implemented to
mitigate the effects of the pollution, or to prevent the onset of
the hazard. The relief sought should effectively abate or
mitigate a pollution endangerment that has already occurred, or
that is continuing to occur, or,prevent an endangerment that has
not yet materialized.24
Section 504 provides a greater variety of remedies than is
generally available under other enforcement provisions of the
CWA. The relief available under Section 504 is limited only by
the creativity of a federal district court exercising ifs general
equitable powers.
Faced with a threat to surface water used for drinking
purposes, f°r example, a district court acting under Section 504
might order the polluter to notify the service area for the
public water supply that a threat to health existed from
continued reliance on the contaminated surface water, or require
the polluter to provide an alternative drinking water supply,
such as bottled water. This relief could be sought in concert
2 4
Factors considered by one court in devising appropriate
relief include:
1. The nature of the anticipated harm.
2. The burden of an injunction on the company and its
employees.
3. The financial ability of the defendant to use other
means to dispose of the pollutant.
4. A margin of safety for the public.
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with relief under Section 1431 of the Safe Drinking Water act.
Additionally, the court could order the polluter to pay for a
doctor's examination of affected persons to determine the extent
of the threat to public health. Provision of educational
programs which reduce the threat is another option, a court
might require similar actions by a polluter contaminating surface
water where recreational contact poses a threat to health, as by
ordering the polluter to post warning signs in the area
surrounding the contaminated water body. Because of the broad
range of potential relief available, Section 504 also would be
particularly useful to handle contaminated shellfish problems or
situations of harm to the tourist industry and fishermen caused,
by pollution of surface waters or sediments.
IV. CIRCUMSTANCES APPROPRIATE FOR THE USE OF SECTION 504
The following are circumstances where EPA may use Section
504. This list is not inclusive. The Agency may use Section 504
in other situations so long as the general guidelines set forth
in Part A above are followed.
A. Contaminated Sediments
Contaminated sediments can pose a threat to the public
health and welfare by contaminating human food sources and by
contributing to the decline of commercially harvested species,
such as shellfish. Because the contamination may result from
discharges in compliance with a National Pollutant Discharge
Elimination System ("NPDES") permit; the contamination may evade
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regulation under either Section 309 of the CWA or CERCLA, which
otherwise are commonly used mechanisms for addressing such
situations. Section 369 may be unavailable because Section
402(k) of the WA provides a limited defense to violations of
sections 301 of the Act for sources of pollution in compliance
with an NPDES permit (this is the so-called "permit as a shield"
defense, see Part II.B.5 above). CERCLA is unavailable because
of the federally permitted release exception in Section 107(j) of
CERCLA, 42 U.S.C. § 9607 (j). Section 9601(10) of CERCLA, 42
U.S.C. § 9601(10), defines the term "federally permitted release"
to include "discharges in compliance with a permit under section
1342 of Title 33 . "
Contaminated sediments constitute a pollution source within
the meaning of Section 504. Section 504 authority, as we have
seen, is not limited to discharges, either past or present, but
covers any sources of pollution that are presenting an
endangerment to the health or welfare of persons. Additionally;
suit can be brought against any person causing or contributing to
the pollution.
At least two forms of injunctive relief are available under
Section 504 in contaminated sediment situations. The Act
provides for district court action to "restrain any person
causing or. contributing to the alleged pollution to stop the
discharge of pollutants causing or contributing to such
pollution." This language authorizes an injunction to restrain
point source dischargers causing or contributing to contaminated
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20
sediments that present an imminent and substantial endangerment.
In addition, Section 504 authorizes EPA to bring suit to
compel any person causing or contributing to the alleged
pollution to "take such other action as may be necessary." This
language may authorize a district court to require a discharger
or nonpoint source of pollutants to remove or clean up
contaminated sediments. However, use of Section 504 authority to
require clean-up of contaminated sediments or to obtain recovery
of clean-up costs is untested. Point source dischargers in
compliance with an NPDES permit might attempt to argue that
Section 402(k) of the CWA shields them from liability. This so-
called "permit as a shield defense is discussed in Part II.B.5
above.
The Assessment and Remediation of Contaminated Sediments
Program-is conducting sediment surveys of the Great Lakes. Other
sediment studies, such as the nationwide U.S. Geological Survey,
have been or are being done in other areas of the country.
Results of these studies may be used to target sites posing
danger's that would be appropriate for action under Section 504.
B. Marrativs Watpr Quality Standards
Section 504 may be used to back-up the use of non-numeric
water quality standards. These so-called '"narrative" standards
may be difficult to enforce under other provisions of the Clean
Water Act. Narrative standards, such as-the proscription against
the discharge of toxic pollutants in toxic amounts, and the
requirement to refrain from exceeding water quality criteria, can
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be implemented using Section 504 in certain circumstances. where
a discharger is in compliance with its permit, yet water quality-
criteria are not being met, Section 504 may be a useful
supplemental tool to abate those discharges.
When a water quality standard is being exceeded, and the
exceedance results in beach closings, contaminated shellfish
beds, or otherwise endangers the public health or welfare,
Section 504 can be used as an enforcement tool. If a court
refuses to enforce the narrative effluent limit under Section 309
of the CWA, Section 504 provides the court with sufficient
authority to require beach cleanup, cessation of the discharge,
or other appropriate relief.
C. Pretreatment
In certain circumstances,Section 504 may be of benefit in
enforcement actions against Industrial Users of POTWs. If
Industrial Users, are not covered by categorical limits, for
exmple, use of Section 504 might be beneficial when the
pollution created by the IU is creating an imminent and
substantial endangerment to the public health or welfare.
Additionally, insituations in which the, Industrial User is
creating such an endangerment to the public health or welfare,
but is not causing "pass through," because the POTW does not have
limits for the pollutants the IU is contributing to its effluent,
use of Section 504 may be a helpful enforcement tool. Section
504 may also be used in conjunction with a Section 309 penalty
action in situations when the IU is covered by yet in violation
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2 2
of, a ,categorical pretreatment standard or the general
prohibition against discharges that cause pass through, and there
exists an imminent and substantial endangerment to the health or
welfare of persons.
D. Oil and Hazardous Substance Spills
Section 504 offers some advantages over other enforcement
mechanisms when dealing with Spills of oil or hazardous
substances. Oil and hazardous substance spills are addressed
under Section 311 of the Clean Water Act, as amended by the Oil
Pollution Act of 1990. Unlike Section 311,however, action under
Section 504 is not based upon reportable quantities. See Section
311(b) (4) . An action brought under Section 504 may be
supplemental to a Section 311(c) or (e) order given to abate the
endangerment arising from an oil or hazardous substance spill.
Similarly , hazardous substance spills are also addressed under
Section 106 of CERCLA. Unlike CERCLA, however, Section 504 has
no requirements for listing as a hazardous substance.
Further more, Section 106 administrative actions carry with them
the possibility of claims against the Agency by defendants for
refunds of monies spent to clean up sites in certain
circumstances. There is no such threat when judicial action is
taken under Section 504.
E. Stormwater Discharges by Municipalities Under 100.000
Population
Municipalities serving populations less than 100,000 with a
separate storm sewer system are not currently required, under
Section 402(p) of the Clean Water Act, to comply with permit
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2 3
requirements for stormwater. Some of these cities may have
quantities of pollutants in their stormwater which pose an
endangerment to the public health or welfare. Section 504 may be
used to curtail known, or anticipated, toxic, and other such
discharges of pollutants; where those discharges are causing or
contributing to an endangerment of the public health or welfare.
Section 504 could be used to require installation of appropriate
treatment technologies to prevent such discharges from
reoccurring.
Section 308 information requests can be used to determine
the toxicity of stormwater discharges in areas that are known to
be failing to meet water quality standards, such as specifically
identified areas of the Great Lakes. Cases in which stormwater
discharges are contributing to the contamination or depletion of
fish or shellfish populations, or causing or contributing to the
failure of bodies of water to meet water quality standards; are
situations appropriate for use of Section 504.
p. NnnPninr Snnrrp Pnlliitinn
Nonpoint source pollution currently cases some of the most
severe remaining water pollution problems in the United States.
If nonpoint sources cause or contribute to the endangerments of
the public health and welfare, they are subject to action under
Secttion 504. For example, agricultural runoff in several forms
can cause or contribute to bacterial contamination, nitrate and
pesticide contamination, and eutrophication of essential bodies
of water such as the Chesapeake Bay. These discharges are
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24
subject to action under Section 504 when they pose an imminent
endangerment to the public health or welfare. Two forms of
agricultural runoff, in particular, can often present an
endangerment to the public health and welfare. Sub-surface flow
of soluble chemicals from agricultural run-off, as well as sheet
flow from agricultural fields and small feedlots adjacent to
waters of the U.S., may cause bacterial and other dangerous
contamination in surface waters. When bacterial contamination
from these pollution sources is present, either because a
hydraulic connection between the groundwater and the surface
water has allowed the bacteria to contaminate the surface water
via subsurface flow, or when, the contamination results from
direct runoff, the situation often warrants the use of Section
504 For example, bacterial contamination from these sources is
especially dangerous to the public health and welfare in coastal
waters and estuaries, where the contamination causes beach
closures, as well as the tainting and closure of shellfish beds.
Nutrient and pesticide runoff from sub-surface flow of
soluble chemicals in groundwater that bears a hydraulic
connection to surface water, as well as from sheet runoff, may
also endanger both human health, and livestock populations,
contamination of waters of the United States, as well as private
drinking water wells, with toxic levels of both nitrates and
pesticides, has been attributed to nonpoint source agricultural
runoff. Nitrates can be especially toxic to infants, although
they may also endanger the livelihood of farmers, by destroying
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25
livestock populations who drink from the contaminated water
sources. Pesticides from agricultural applications have been
found in private drinking water wells as a result of agricultural
runoff, as confirmed by a recent study of drinking water in Ohio
conducted by Heidelberg College. The extent of pesticide
contamination of drinking water water well has also been documented fcy
the Agency in the November 13, 1990 report of the results of
Phase 1 of the National Pesticide Survey of Drinking Water wells.
This report indicates that at least 10%, or 10,000 community
drinking water wells, and at least, 4.2%, or 446,000 domestic
water wells, have detectable levels of at least one pesticide.
In summary, whenever drinking water or livestock populations are
endangered by surface water contamination with pesticides,
agricultural chemicals, or nitrates, use of Section 504 may be
appropriate.
Agricultural return flows, which are exempted from Section
402 requirements, also can often pose an imminent and substantial
endangerment to the public health or welfare. In addition to
contributing to both the bacterial contamination, and the
nutrient and pesticide contamination mentioned above,
agricultural return flows discharge elevated levels of Total
Suspended Solid s. These discharges contribute to the destruction
of salmonid fisheries that are essential to the public welfare
Studies by the State of Idaho have shown that clean sediment from
both logging and agricultural operations can cause the
destruction of salmonid fisheries and spawning habitat for
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26
valuable salmonid populations. jn case where salmonid or
other fisheries are endangered by agricultural return flows or
clean sediment discharges, use of Section 504 may be warranted.
G. Tox i c s
Numerical effluent limits for toxics, including persistent
toxics, or toxics that bioaccumulate in aquatic vegetation and
wildlife, are not currently included in 611 permits of pubilicly
owned treatment works where they may be necessary. Water quality
standards based on numerical criteria relating to toxics have
been developed by most States, and EPA recently promulgated
numeric criteria for toxic pollutants for those States that had
not developed their own numerical criteria.
Section 504 may be used to terminate or control toxic
discharges that pose imminent endangerments to the public health
or welfare by requiring treatment technology to be installed to
lower or eliminate the amount of toxics discharged. Given that a
long term program to set numerical effluent limits for these
toxics is underway, Section 504 is a useful tool in appropriate
circumstances to address those toxic discharges which constitute
an imminent and substantial endangerment until permits include
numeral limits, or in cases where such an endangerment exists
despite such limits having been set in a permit.
Toxic Release Inventory data could be used to target further
investigation into releases which present an imminent
endangerment to the public health or welfare. Facilities
discharging effluent containing toxic amounts of any tcxic
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2 7
chemical listed on the Clean Water Act Section 307 list could
present situations where Section 504 would apply. In the Great
Lakes, facilities discharging toxic amounts of any toxic listed
in the toxics appendix to the Great Lakes Water Quality Agreement
could be subject to action under Section 504, if the discharge
could be shown to be causing or contributing to an endangerment
of the public health or welfare.
H. Combined Rpwsr Overflows
Combined Sewer Systems (CSSs) are systems designed to carry
sanitary, industrial, and commercial wastewaters and storm water
runoff through a single-pipe system to a treatment facility
before discharge to a receiving water body. During dry weather
conditions, CSSs generally accomplish this objective. During wet
weather, the combined flows may exceed the capacity of the
collection system or the treatment facility. In this situation,
these Combined Sewer Overflows (CSOs) are discharged directly
into the receiving water without any treatment. CSOs are point
source discharges subject to NPDES regulations and must meet
CWAs technology-based aid water quality-based requirements.
Use of Section 504 can be a powerful tool to require
compliance on the part of violators whose discharges are posing
an endagerment to the public health or wel&re. Cases in which
beach closings may occur as a result of CSO disharges would be
an appropriate situation in which to consider use of Section 504.
Additionally, cases in which CSO discharge are contributing to
the contamination or depletion of fish or shellfish populations,
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or the eutrophication of a body of water, as in the Chesapeake
Bay would be appropriate cases in which to make use of Section
504 .
CONCLUSION
section 504 of the Clean Water Act is a -potent enforcement
tool for the Agency to address water pollution presenting an
imminent and substantial endangerment to the health or welfare of
persons. An action may be brought to prevent a threatened
endangerment from materializing or to mitigate harm that has
already occurred. Section 504 also may be used to respond to
hazards that cannot be adequately addressed by other provisions
of the CWA, or to abate an endangerment pending the
implementation of permits in non-permitted situations, or the
resolution of other enforcement actions. When appropriate, the
Agency encourages its us by the Regions to the fullest practical
extent .
For more information on this guidance, please contact Avi
Garbow (Tel. 202-260-1579) or Maria Brin (Tel. 202-260-8183),
both of the Office of Enforcement, Water Division, or Ann
Prezyna, Water Branch Chief, Region X (Tel. 206-553-1023).
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, mTB t UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Kml. * WASHINGTON IX 20460
\ -/
SEP 27 1991
MEMORANDUM
SUBJECT: Final Guidance on Emergency Authority under Section
1431 of the Safe Drinking Water^Act
FROM: James R. Elder, Directa^^^^^
Office of Ground Water and Drinking Water
Frederick F. Sti<=hl.
Enforcement Counsel for Water x
Office of Enforcement
TO: Water Management Division Directors
Regions I - X
Regional Counsels
Regions I - X
This memorandum transmits the Office of Ground Water and
Drinking Water (OGWDW) and Office of Enforcement (OE) final
guidance on invoking EPA's emergency authority, granted under
Section 1431 of the Safe Drinking Water Act (SDWA) , to address
water supply hazards. This guidance has been reviewed and
received concurrence from the Office of General Counsel (CGC)
This final guidance replaces the EPA December 28, 1976 guidance
(Water Supply Guidance No. lo) , entitled "Regional Guidance -
Emergency Action on Water Supply Hazards".
We want to thank the Regions for their thorough review of
the draft guidance and valuable input, a summary of the comments
received and our responses is included as an attachment to this
memorandum. If you have any Questions regarding this final
document, please call Anne Jaffe Murray in OGWDW on 260-7358 or
Alan Morrissey in OE on 260-2855.
Attachment
cc: Regional Drinking Water/Groundwater Protection Branch Chiefs
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WSG No. 87
GUIDANCE ON INVOKING EMERGENCY AUTHORITY
UNDER SECTION 1431 OF THE SAFE DRINKING WATER ACT
Purpose of Guidance
This guidance is intended to emphasize that Section 1431
has a broad application and provides EPA with an effective tool
for handling public health endangerments concerning public water
supplies (PWSs) and underground sources of drinking water
(USDWs) . One of the purposes of this guidance is to encourage a
more widespread use of EPA's Section 1431 authority by more "fully
explaining situations where this authority may be applied. In
addition, this guidance discusses EPA's internal procedures for
issuing Section 1431 Orders and provides information on how to
support and prepare an order.
contents
This guidance is organized as follows:
• Overview
• Elements of 1431 Authority
• Role of State and Local Authorities
• What Remedial Actions May Be Ordered
• Use of Administrative vs. Judicial Orders
• Relationship between Section 1431 and Other EPA Emergency
Authorities
• Parties Over Whom Section 1431 Grants EPA Authority-
Procedure for Issuing a Section 1431 Order
• Footnotes
• Attachment 1 - Section 1431 (as amended in 1986)
• Attachment 2 - House Report 93-1185
• Attachment 3 - Model Section 1431 Administrative Order -
PWSS Program
• Attachment 4 - Model Section 1431 Administrative Order -
PWSS Program (involving unregulated contaminants)
• Attachment 5 - Model Section 1431 Administrative Order -
UIC Program
Disclaimer
This guidance document on the application of EPA's emergency
powers under Section 1431 of the SDWA is a statement of Agency
policies and principles. it does not establish or affect legal
rights or obligations. This guidance document does not establish
a binding norm and is not finally determinative of the issues
addressed. Agency decisions in any particular case will be made
by applying the law and regulations to the specific facts of the
case. The Agency may take action at variance with this guidance.
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Overview
WSG No. 87
Introduction
contaminants may be present in or released into the
environment as a result of inadequate treatment of drinking water
by a PWS, a leaking underground storage tank, or failure of an
underground injection (UIC) well, to name a few. These incidents
may result in contamination in or near a PWS or USDW that may
pose an "imminent and substantial" endangerment to human health.
Authority granted under SDWA Section 1431, 42 U.S.C. Section
300(i), gives the Administrator broad powers to take appropriate
enforcement action if he receives information that:
A contaminant is present in or likely to enter a PWS or
USDW, and
The contaminant may present an "imminent and substantial
endangerment " to human health, and
The appropriate State and localiauthorities have not
acted to protect public health.1
The purpose of a Section 1431 action is to prevent an,
impending dangerous condition from materializing, or to reduce or
eliminate a dangerous situation once it has been discovered.
Section 1431 does not require an emergency in the ordinary sense
of the word. Instead, this provision focuses on "imminent and
substantial endangerments", which is a broadly defined concept
(see discussion below). For example, one major function of
Section 1431 is its use as a preventative enforcement measure.2
As an "emergency" provision, however, section 1431 should
not be used as a substitute for other SDWA provisions, where such
other provisions are adequate to protect public health.1 For
example, under the Public Water System Supervision (PWSS)
Program, violations of monitoring requirements or even of a
maximum contaminant level (MCL) should generally be addressed
through use of the enforcement authorities (including
administrative order authority) in Section 1414. However, if the
MCL exceedance may present an imminent 'and substantial
endangerment, then an emergency action under Section 1431 may be
appropriate in addition to any other SDWA Section 1414
enforcement action. An example under the UIC Program would be a
Class V UIC well operator who is injecting contaminants that nay
be causing or contributing to an MCL exceedance or otherwise
endangering an USDW. Although this generally would be enforced
as a violation of Section 1423, a Section 1431 action also may be
appropriate if an imminent and substantial endangerment may be
present.
2
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WSG No. 87
Overview (Continued)
1986 Amendments to Section 1431
The SDWA Amendments of 1986 clarified EPA's existing
authority to order the provision of an alternative water supply-
by persons who caused or contributed to the endangerment. In
addition, the 1986 Amendments strengthened EPA's authority to
enforce Section 1431. Previously, Section J.4,3,1 provided that EPA
could enforce against any person who will fully violates or
fails or refuses to comply with a Section 1431 Order. T, iggg
Amendments removed the term "willfully", enabling EPA to enforce
against any persons, whether or not their actions were willful.
Also, the 1986 Amendments clarified EPA's authority to protect
USDWs, as discussed on page 4. (Section 1431, as modified by the
1986 Amendments, is contained in Attachment 1.)
Delegation of Authority
On July 25, 1984 the Administrator delegated the authority
to issue administrative orders under Section 1431 to the Regional
Administrators (RAs) and the Assistant Administrator for Water
(Delegation No. 9-17). in some Regions the RA has redelegated
this authority to the division or branch level. The authority to
make direct civil judicial referrals under Section 1431 has not
been delegated by Headquarters to the Regions.
Elements of Section 1431 Authority
, To apply the authority granted under Section 1431, two
condilions must be met. First, the Administrator must have
received "information that a contaminant which is present j_n or
likely to enter a (PWS] or an (USDW] may present an imminent end
substantial endangerment to the health of persons." second the
Administrator must have received information that "appropriate
State and local authorities have not acted to protect the health
of such persons." To realize the full potential of Section 1431,
the key elements of these conditions must be understood. These
elements are: contaminants that are covered under Section 14 31,
the definition of "likely to enter", application to PWSs and
USDWs, and the definitions of "imminent" and "substantial". Each
element is discussed in greater detail in this section.
3
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WSG No. 87
Elements of the 1431 Authority (Continued)
contaminant
Section 1401(6) of the SDWA defines "contaminant" very
broadly to include "any physical, chemical, biological, or
radiological substance or matter in water." Under this broad
definition, EPA may take action under Section 1431 even when the
contaminant in question is not regulated by a National Primary
Drinking Water Regulation (NPDWR) under the SDWA (i.e., EPA has
not issued a NPDWR for the contaminant or the regulation has been
promulgated but is not yet effective). This authority is clearly
supported by the SDWA legislative history. (See H.R. Rep. No.
1185, 93rd Cong., 2d Sess., 35 - 36. The discussion of Section
1431 in this 1974 House Report is shown in Attachment 2 of this'
guidance.)
Likely to Enter
Application of the Section 1431 authority is not limited to
existing contamination of a PWS or USDW but also may be used to
prevent the introduction of contaminants that are "likely to -
enter "drinking water. Thus, Section 1431 Orders should ideally
be issued early enough to prevent the potential hazard from1
materializing.
TTndp-rg-rnimri Snirrps nf nrinVing Wat-pr
EPA's Section 1431 authority is not limited to the
protection of PWSs. it also extends to the protection of all
USDWS, whether or not the USDW currently supplies a PWS. The
1986 Amendments clarified EPA's existing authority to protect
USDWs by making this authority explicit in the statute.
The agency has defined "underground sources of drinking
water" in 40 CFR Section 144.3. Under this definition, "USDW^
includes both aquifers that currently supply a PWS and those that
simply have the potential to supply a PWS (according to the
criteria in Section 144.3).5 The ability to address the
contamination of USDWs (rather than only PWSs) broadens EPA's
authority in two ways. First, it allows EPA to act under Section
1431 where the groundwater source in question is only a potential
supplier of a PWS. Second, it allows the Agency to protect
private wells that are at risk because of the contamination or
threatened contamination of a USDW.
4
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WSG No. 87
Elements of the 1431 Authority (Continued)
Imminent and Substantial Endangerment
Assuming EPA can show that a contaminant is' "present in or
likely to enter" the drinking water supply (either PWS or USDW),
EPA also must show that a contaminant "may present" an
"endangerment" and that the endangerment is both "imminent" and
"substantial."
Imminent Endangerment
Section 1431 authorizes EPA to address "endangerments" that
are "imminent". The case law that has developed on these terms
(as used in the SDWA or in analogous provisions of other
statutes), together with the SDWA legislative history, suggests
the following guidance.
An "endangerment" is not actual harm, but a threatened or
potential harm.6 No actual injury need ever occur.7
Therefore, while the threat or risk of harm must be "imminent"
for EPA to act, the ham itself need not be. Public health
may be endangered imminently and substantially both by a lesser
risk of a greater harm and by a greater risk of a lesser harm;
this will ultimately depend on the facts of each case.'
An endangerment is "imminent" if conditions which give rise
to it are present, even though the actual harm may not be
realized for years." Courts have stated that an "imminent
hazard" may be declared at any point in a chain of events which
may ultimately result in harm to the public." For example, in
U.S. v. Midway Heights County Water District," individuals'were
exposed to microbiological and turbidity exceedances, but actual
illnesses had not yet been reported. The court found that the
presence of organisms that were accepted indicators of the
potential for the spread of serious disease presented an imminent
(and substantial) endangerment.
Endangerments can more readily be determined to be imminent
where they involve contaminants that pose acute human health
threats. Examples include:
* A nitrate MCL violation when a sensitive population is
exposed (i.e., infants less than six months of age)
* A waterborne disease outbreak with or without MCL
violations
* A microbiological or turbidity MCL violation with or
Without a waterborne disease outbreak
5
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WSG No. 87
Elements Of the 1431 Authority (Continued)
Imminent (Continued)
Injection of untreated sewage directly into an USDW that
is used by a nearby drinking water well.
However, acute contaminants are not the only ones that night
pose an imminent endangerment. Because an endangerment is
created by the risk of harm, not necessarily actual harm, EPA
should determine whether a risk of harm is imminent. Therefore
contaminants that lead to chronic health effects, such as '
carcinogens, also may be considered to cause "imminent
endangerment"13 even though there is a period of latency before
those contaminants, if introduced into a drinking water supply,
might -cause adverse health effects. in the SDWA legislative
history, the House Report specifically states that an imminent
endangerment may result from exposure to a carcinogenic agent.14
Section 1431 should not be used in cases where the risk of
harm is remote in time or completely speculative in nature.'5
However, in determining the imminence of a hazardous condition,
EPA may consider the time it may require to prepare orders, to
commence and complete litigation, to implement and enforce
administrative or judicial orders to protect public health, and
to implement corrective action under Section 1431.16 For
example, even where a contaminant is not likely to enter a
ground-water supply for several months or longer (as can be the
case with a ground water plume moving toward a well), EPA may
consider this hazard to be "imminent" in light of the time
required to implement the actions described above.Further, even
where a hazardous condition has been present for some time (even
years) , case law supports the view that EPA is not prevented from
finding that the conditions present an imminent endangerment.17
In addition, Section 1431 may be used to address threats to
health from other than direct ingestion of drinking water u For
example, in U.S. v. Midway Heights County Water District, 8
individuals were exposed to bacteriological and turbidity
contamination. The court determined that although the water
primarily was not used for drinking water, an imminent and
substantial endangerment existed from "human consumption" through
such normal uses as bathing, showering, cooking, dishwashing, and
oral hygiene.
6
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WSG No. 87
Elements of the 1431 Authority (Continued)
substantial
The term "substantial endangerment" can apply to a broad
range of existing or threatened hazards and should not be limited
to extreme circumstances. One court, interpreting the term
"substantial endangerment" as used in CERCLA, has stated that
"the word 'substantial' does not require quantification of the
endangerment (e.g., proof that a certain number of persons will
be exposed, that 'excess deaths' will occur, or that a water
supply will be contaminated to a specific degree) ."instead,
the court found, an endangerment is substantial if there is a
reasonable cause for concern that someone may be exposed to a
risk of harm. The court stated that a number of factors (e.g.,
the quantities of CERCLA hazardous substances involved, the
nature and degree of their hazards, or the potential for human
exposure) may be considered in determining whether there is a
reasonable cause for concern; but in any given case,one or two
factors may be so predominant as to be determinative of the
issue." Of course, the emergency authority of Section 1431
should not be used in cases where the risk of harm is completely
speculative in nature or is de minimis in degree.21
House Report 93-1185 gives the following examples of what
may be considered a "substantial" endangerment :
* "a substantial likelihood that contaminants capable of
causing adverse health effects will be ingested by
consumers if preventative action is not taken"
"a substantial statistical probability exists that
disease will result from the presence of contaminants in
drinking water"
"the threat of substantial or serious harm (such as
exposure to carcinogenic agents or other hazardous
contaminants)."
Role of State or Local Authority
One of the crucial requirements of a Section 1431
enforcement action is that "appropriate State and local
authorities have not acted to protect the health of such
persons." One court has held that the receipt of such
information is a jurisdictional prerequisite to action under this
section 11 Accordingly, Section 1431 should not be used to deal
with problems that are being handled effectively by State or
local governments (including Tribal governments) in a timely
fashion.'"
7
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WSG No. 87
Role of State or Local Authority ,(continued)
The Regions should not view this standard - whether a State
or local authority has acted to protect the health of persons -
as an issue of whether these authorities have "failed" to protect
public health. Instead, these authorities intentionally may
defer action to EPA because the Section 1431 authority may be
more, powerful or expeditious. in addition, the State or local
authorities may not have acted because they lack jurisdiction, as
may be the case with actions involving Tribal entities. Further
State or local authorities may decide to take action jointly with
EPA. In such cases, EPA would determine that State and local
authorities have not acted (On their own) to protect the health
o£ persons. Therefore, EPA may proceed with Section-1431 actions
when State and local authorities are working jointly with EPA.
Section 1431 also provides that prior to taking action and
to the extent practicable in light of the imminent endangerment,
&PA shall consult with the State and local authorities to confirm
the information on which EPA is basing the proposed action and to
determine what action the State and local governments are taking
or will take. Under Section 1431, then, it is not mandatory to
consult with the State and local authorities (i.e., they should,
be contacted "to the extent practicable"). Nevertheless, the1
Regions should be aware that EPA will need a basis in the record
for the finding in the Section 1431 Order that State and local
authorities "have not acted to protect the health of persons."
The Regions should ensure, therefore, that there is a written
basis in the record for this finding. This written basis could
be simply a log of a telephone conversation or correspondence
between EPA and the State and local authorities.
If EPA has information that State/local agencies are going
to act, EPA must decide whether the action is timely and
protective of public health. if EPA determines that the action
is insufficient and State and local agencies do not plan to take
stronger or additional actions to ensure public health
protection, in a timely way, EPA should proceed with an action
under Section 1431.35
8
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WSG No. 87
Role of Stats or Local Authority (Continued)
Unlike under Section 1414 or 1423, a notice of violation
(NOV) need not be issued prior to taking a Section 1431 action.
Note that, because Section 1431 applies to threatened as well as
existing harm, a regulatory violation may not yet exist at the
time EPA issues the Section 1431 Order. an NOV even if issued,
would not be a means of consulting with the Sta£e and local
authorities to determine whether they have acted in a timely and
appropriate manner to protect the health of persons. An mqV
serves only as a means of informing the State, PWSs, or UlC owner
or operator of EPA's intention to take an action. However the
Region may Want to issue an NOV (in addition to a Section 1431
Order) as part of developing a separate enforcement action under,
Section 1414 or 1423.
The Regions should note that they need to determine that
both State and local authorities have failed to act before
bringing a Section 1431 action. The State can be of assistance
to EPA in making this determination because the State should be
able to identify the appropriate local authorities and may be
aware of whether these authorities have taken any actions.
Remedial Actions That May Be Ordered
Once EPA determines that action under Section 1431 is
needed, a very broad range of options is available. The statute
provides that EPA may take actions as may be necessary to protect
the health of persons. Moreover, EPA may take such actions
notwithstanding any exemption, variance, permit, license,
regulation, order, or other requirement that would otherwise
apply.26
The actions that EPA may take may include (but are not
limited to)
Issuing orders as necessary to protect the health of
persons who are or may be users 'of such system (including
travelers), including orders requiring:
- the provision of alternative water supplies, at no cost
to the consumer, by persons who caused or contributed
to_ the endangerment (e.g., provision of bottled water,
drilling of new well[S], connecting to an existing PWS)
- information about actual or impending emergencies
- public notification of hazards (e.g., door-to-door,
posting, newspapers, electronic media)
9
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WSG No. 87
Remedial Actions That May Be Ordered (continued)
- a study to determine the extent of the contamination
including inventory and monitoring of PWSs and private
wells or ground water
- an engineering study proposing a remedy to eliminate
the endangerment and a timetable for its implementation
- the halting of the disposal of contaminants that may be
contributing to the endangerment.
Commencing a civil action for appropriate relief
including a restraining order, or a temporary or
permanent injunction. The injunction would require the
PWS, UIC well owner or operator, or the responsible party
to take steps to abate 'the hazard.
Use of Judicial vs . Administrative Orders
The Region will need to choose between a Section 1431
administrative order or a civil judicial action. A civil
referral will be preferable to a Section 1431 administrative
order if the Region believes the responsible party will be
uncooperative or recalcitrant or if the necessary relief is long-
term, or otherwise appropriate for supervision by a U.S. District
Court. Because all 1431 referrals are indirect, the Region must
first transmit them to the Office of Ground Water (OGWDW) and
Office of Enforcement (OE)for concurrence before sending then to
the Department of Justice (DOJ) . Headquarters will review and
obtain the necessary concurrences as quickly as possible.
If immediate relief is necessary, an expedited referral is
possible through the use of a telephone referral. The Region
should send (via FAX) a very brief memorandum describing the
problem, the potential or actual health effects, and the -action
required by the identified parties to Headquarters (OGWDW and OE)
and DOJ. Upon receipt of the information, Headquarters will
arrange a conference call with all involved parties and obtain
necessary concurrences as soon as possible. Please note that DOJ
has filed a complaint and a motion for a temporary restraining
order in as little as one day.
A Section 1431 administrative order offers EPA some unique
powers. Unlike compliance orders, Section 1431 Orders enable the
Agency (versus the courts) to order actual injunctive-type
relief. This relief is limited only by the usual constraints of
the Administrative Procedures Act (APA). These require all
Agency actions to be reasonable and not "arbitrary or
10
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WSG No. 8 7
Remedial Actions That Hay Be Ordered (Continued)
capricious". Thus, by issuing an administrative order instead of
filing a civil judicial action, the Agency rather than the
District Court determines the scope and timing of appropriate
relief in the first instance.
The recipients of the administrative order may challenge the
terms of the order. Under the judicial1 review provisions of
Section 1448 of the SDWA, however, the petition must be filed
within 45 days in the appropriate Court of Appeals (a District
court does not have jurisdiction to hear challenges to the
administrative order). if the recipient fails to meet this
condition, he loses all rights to contest the terms of the order.
Any enforcement actions to require compliance with an
administrative order or to seek civil penalties for its violation
must be in District Court. A recipient who violates or fails or
refuses to comply with the terms of the administrative order may
be subject to a civil penalty of not more than $5,000 for each
day in which the violation occurs or failure to comply
continues.28
Relationship between Section 1431 and Other EPA Emergency
Authorities
A Section 1431 Order can be taken in conjunction with
emergency orders under other statutes. Emergency provisions
exist under:
* Resource Conservation and Recovery Act (RCRA) - Section
7003
comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) - Section 106
* Clean Water Act - Sections 504(a) and 311
* Toxic Substances Control-Act - Section 7
Clean Air Act (CAA) - Sections 112 (r) (9) or 303
Although similar in general terms, each of the emergency
provisions of these statutes is somewhat different. (Guidance on
EPA's authority to address imminent and substantial endangerment
under CERCLA, RCRA, and CAA has been issued by the Agency.)"
For example, Section 7003 of RCRA is very broad in that it allows
for protection of the "environment". However, it is somewhat
limited in that the threat must be caused by a "solid waste".
11
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WSG No. 87
Relationship between Section 1431 and Other EPA Emergency
Authorities (Continued)
Section 1431, on the other hand, is limited to the
protection of a PWS or an USDW, but covers a broad universe of
"contaminants". It is generally recommended that the Regions
issue joint orders under more than one of these statutory
authorities, when possible, in order to maximize the Agency's
authority and minimize the risk of successful judicial challenge.
However, if the order is being unduly delayed by coordination
difficulties, the Region should proceed with the Section 1431
order, followed by an order under the other statute or statutes.
An important exception to this recommendation is that it may
be inadvisable to combine a CERCLA Section 106 or RCRA Section
7003 order with a SDWA Section 1431 order. One advantage of the
CERCLA and RCRA orders is that they generally are not subject to
"pre-enforcement" judicial review. That is, recipients of a
CERCLA or RCRA order generally may not challenge that order in a
court at the time they receive it, but must wait until EPA brings
a court action to enforce the order. In contrast, SDWA Section
1431 orders generally are subject to "pre-enforcement" judicial
rev-iew. Because "pre-enforcementt" review of the Section 1431
portion of the order would be available, the Agency's ability to
avoid "pre-enforcement"review of the rest of the order (i.e.,
the portions issued under CERCLA or RCRA authorities) might be
jeopardized. However, if the Region is reasonably confident that
it will enforce the order expeditiously if the recipient refuses
to comply, this issue may not arise.
Because of the importance of this issue, the Regions should
not issue a SDWA Section 1431 Order jointly with a CERCLA Section
106 or RCRA Section 7003 Order without first consulting Office of
General Counsel (OGC) and OE.
Parties Over Whom Section 1431 Grants EPA Authority
Section 1431 by its terms gives EPA broad discretion to
issue any orders necessary to protect the health of persons. EPA
may issue Section 1431 Orders not only to an owner or operator of
a PWS, but also, for example, to State or local government units,
State or local officials, owners or operators of underground
injection wells, area or point source polluters, or to any other
person whose action or inaction requires prompt regulation to
protect public health." This authority authorizes the issuance
of an order to a Tribal Government or Federal agency. (If the
order involves a Tribal entity, the Region should consult the
Agency's Indian policy and advise the Office of Federal
Activities of orders issued against Federal facilities.)
12
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WSG No. 87
Parties Over Whom Section 1431 Grants EPA Authority (continued)
In cases where the responsible party is not clearly known,
the order should be issued to the most likely contributor(s)
based on the type of contaminant(s) found in the PWS and/or USDW
compared to current and past land practices in the area. As part
of the order, EPA can require that a study be performed to more
clearly determine the responsible parties. An example, is a PWS
which is contaminated with benzene, toluene, and xylene. Five
gasoline service stations are located near the PWS. An order
could require each of the service stations to test for leaks in
their underground storage tanks.
EPA may even use Section 1431 authority to reach parties
that are not responsible for the endangerment. Orders to a
nonresponsible party ordinarily should be limited to those
instances where no responsible party exists or is suspected and
the issuance of an order to a nonresponsible party is the most
appropriate means to protect or mitigate the endangerment. For
example, an order may require a PWS ,contaminated by unknown
polluters, to filter or relocate its water source.
Procedure for Issuing Section 1431 Order
Components of a 1431 Order
Administrative
The recommended basic components of an administrative 1431
Order are:
• EPA's Statutory Authority
• Findings of Fact
• Conclusions of Law
• Conditions (or Actions) Ordered by the Emergency Order -
(Should also contain a statement that requires the
respondent to advise the Agency of his intentions to
comply with the terms of the order in a specified short
timeframe, e.g, 72 hours).
• Name and Address of EPA Contact
Attachments 3 and 4 are examples of Section 1431 administrative
orders for the PWSS Program. Attachment, 5 is an example of a
Section 1431 administrative order for the UIC Program.
13
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WSG No. 87
Procedure for Issuing a Section 1431 order (Continued)
Components of a 1431 order
Civil Judicial
If a judicial order is sought, the Agency must still
determine that an "imminent and substantial endangerment" exists.
This should be done through a written determination or affidavit,
provided by the RA or delegatee, that the conditions that support
the need for an action under Section 1431 have been met.
Degree of Support
Development of a Record
The issuance of a Section 1431 Order is an administrative
action that must be supported by an adequate written record in
order to survive a potential judicial challenge. Therefore, the
Regions should ensure that the findings of fact in the order are'
adequately supported by documents in the record showing the basis
for EPA'S technical determinations. Similarly, before bringing a
judicial action under Section 1431, Regions should ensure&that
sufficient information has been compiled and can be presented-to
a court to support the action. This information would take the
form of technical documents, other background materials, and
memoranda to the file. EPA also may need to present information
in the form of affidavits from the responsible EPA officials.
Absolute Proof Not Required
Even though EPA should strive to create a record basis to
support its Section 1431 actions; the Regions should recognize
that EPA does not need uncontroverted proof that contaminants are
present in or likely to enter the water supply or that an
imminent and substantial endangerment may be present before
taking action under Section 1431.31 similarly, EPA does not
need uncontroverted proof that the recipient of the order is the
person responsible for the contamination or threatened contamina-
tion. Courts generally will give deference to EPA's technical
findings of imminent and substantial endangerment. The purpose
of Section 1431 actions is to prevent harm from occurring.
Extensive efforts to document the available information should be
avoided, where the delay in obtaining such information or proof
could impair attempts to prevent or reduce the hazardous
situation. The Region may use, for example, sampling data from
public and/or private wells, the exceedance of the unreasonable
risk to health (URTH) level, data from toxicological studies, and
the opinion of a toxicologist or other expert as evidence that an
"imminent and substantial endangerment" may exist.
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WSG No. 87
Procedure for Issuing a Section 1431 order (Continued)
State and Local Authorities Have Not Acted
AS stated previously, before taking an action under Section
1431, EPA must receive information that demonstrates that State
and local authorities have not acted to protect public health.
The Region should have a written basis for this finding, which
may consist of a telephone log or written communication(s) , that
serves to document contact between EPA and State and local
authorities.
Headquarters Contact
The Region is not required to recieve concurrence from
Headquarters before issuing an administrative Section 1431 Order.
However, the Region may elect to receive advice from Headquarters
prior to issuing the order, especially those Regions with no or.
little experience in issuing Section 1431 Orders. OGWDW and OE,
as in the past, are committed to providing feedback to the
Regions within 48 hours. 'Consulting in advance with Headquarterd
program staff, OE and OGC may protect against subsequent adverse
judicial determinations. in particular , due to issues of
"present preenforcement" judicial review as discussed previously, the
Regions should not issue a SDWA Section 1431 Order jointly with a
CERCLA Section 106 or RCRA Section 7003 Order without first
consulting OGC and OE.
Headquarters has not delegated the authority under Section
1431 to the Region for a judicial referral. The Region must
submit a Section 1431 civil judicial order to OE and OGWCW for
concurrence. OE and OGWDW also will strive to provide feedback
within 48 hours for any expedited judicial referral. If however,
the referral under Section 1431 is not of an "emergency nature"
(i.e., has not been expedited), the referral will be processed in
the usual 35-day period.
Regardless of whether the Region prepares an administrative
or civil judicial order, OE and OGWDW request that the Region
submit copies of all final orders for their central files.
No Citizen Suits under Section 1431
SDWA authorizes citizens suits against EPA when the Agency
has failed to take actions that are mandatory under the statute..
Because EPA's authority to take action under Section 1431 is
discretionary, citizen suits to compel EPA to take action under
Section 1431 are not authorized."
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WSG No. 87
FOOTNOTES
Section 1431, 42 U.S.C. Section 300{i) (emphasis added),
h.r. Rep. No. 1185, 93rd Cong., 2d Sess., 35-36, reprinted
in, 1974 U.S. Code Cong, & Ad. News 6454, 6488 ("H.R. 93-
1185"). The preventative intent of Section 1431 is apparent
in the legislative history, which states:
the Committee intends that this language be
construed by the courts and the Administrator
so as to give protection of the public
health. Administrative and judicial
implementation of this authority must occur
early enough to prevent the potential hazard
from materializing.
Id. H.R. 93-1185, at 36, states that "section 1431 reflects
the Committee's determination to confer completely adequate
authority to deal promptly and effectively with emergency
situations which jeopardize the health of persons." Tu
Report further states that the administrative authority of
Section 1431 should "not be used when the system of
regulatory authority provided elsewhere in the bill could be
used adequately to protect the public health." Id.
See at 35 - 36.
While "USDW" is not defined in the statute, SDWA Section
1421(d)(2) makes it clear that the statute protects a broad
category of waters. This section states that " [u]nderground
injection endangers drinking water sources if such injection
may result in the presence in underground water which
supplies or can reasonably be expected to supply any public
water system of any contaminant..." (emphasis added).
U.S. v. Conservation Chemical Co., 619 F. Supp. 162, 192
(W.D. Mo. 1985) (interpreting the term "endangerment" m
CERCLA), citing Ethyl Corp. v. EPA, 541 F.2d 1, 18 (D.C.
Cir. 1976), (Ed banc). cert, denied, E.I. du Pant-de Nemours
& Co. v. EPA. 426 U.S. 941 (1976) (interpreting the language
will endanger" in the Clean Air Act) .
See Ethyl- Corp. v. EPA, 541 F.2d at 13.
16
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WSG No. 87
FOOTNOTE S,
(Continued)
See U.S. v. Reilly Tar and Chemical Corp., 546 F. Supp.
1100, 1109-10 (D. Minn. 1982), quoting H.R. 93-1185; U.S. v.
Conservation Chemical Co., 619 F. Supp. at 193-94. The CCC
court, construing similar language in CERCLA, stated that
the standard is especially lenient since it authorizes
action "when there may be a risk of harm, not just when
there is a risk of harm. 11 Id. at 193 (emphasis in
original).
See Ethyl Corp. v. EPA, 541 F.2d at 18.
See U.S. v. Conservation Chemical Co., 619 F. Supp at 193-
94; B .F.Goodrich v. Murtha, 697 F. Supp. a9 96 (CERCLA
action).
Dague v. City of Burlington, 935 F.2d 1343, 1356, (2d Cir.
1991); U.S. v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1394
(D.N.H. 1935).
695 F. Supp. 1072, 1076 (E.D. Cal. 1988).
See Conservation Chemical Co., 619 F. Supp. at 194, citing
legislative history of RCRA Section 7003.
See H.R. 93-1185 at 36. This view is underscored by the
numerous other references in the legislative history to the
discovery of carcinogens and potential carcinogens m an
ever increasing number of water supplies. 1974 House
Report, supra, at 6, 10-11, 35; 120 Cong, rec. H10789, H
10793-94, H10798-99, H10801-02 (daily ed. Nov. 19,1974);
120 Cong. Rec. S20240 (daily ed. Nov. 26, 1974). This
concern was reiterated and strengthened in subsequent
Congressional reviews of the SDWA program. House Comm. on
Interstate and Foreign Comerce, H.R. Rep. No. 9 6 - i 8 6; 96th
Cong., 1st sess. 4-6 (1979), and Senate Comm. on Environment
and Public Works, S. Rep, No. 96-161, 96th Cong., 1st Sess.
3 (1979) .
This interpretation is supported by H. Rep. 93-1185.
See Id.; See B.F.Goodrich v. Murtha, 697 F. Supp. 89, 96
(CERCLA action, quoting H. Rep. 93-1185) .
17
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FOOTNOTES
(Continued)
WSG Mo. 87
17 See, In Re FCX, inc. 96 B.R. 49, 55 (Bkrtcy., E.D.N.C. 1989)
("even when there is an inordinate delay by EPA], the court
must find an immediate danger to public health if in fact
one exists").
18 695 F. Supp. 1072, 1076 (E.D. Cal. 1988).
19 Conservation Chemical Co., 619 F. Supp. at 194.
20 id.
21 See H.R. 93-1185 at 35.
22 H.R. 93-1185 at 36.
23 United States v. Occidental Petroleum Corp., No. 79-989
(E.D. Cal. 1980).
24 See H.R. Rep. 93-1185 at 36. This implements legislative
intent expressed in House Report 93-1185 to "direct the
Administrator to refrain trom precipitous preemption of
effective State or local emergency abatement efforts."
25 congressional reports and floor debates support the view
that Congress inserted this language in Section 1431 (and
added certain procedural prerequisites before allowing
Federal enforcement in a primacy State) simply to avoid
duplication between the Federal and State enforcement and to
preserve the primary responsibility for protecting the
public at the State and local levels. Id. at 22-23, 35; S.
Rep. No. 93-231, 93rd Cong., 1st Sess. 9, 10 (1973); 120
Cong. Rec. H10789, H10793-94 (daily ed. Nov. 19, 1974); 120
Cong. Rec. S20241-42 (daily ed. Nov. 26, 1974) .
26 The legislative history supports this view. See H.R. Rep.
1185, at 35 - 36.
27 See Id. The House Report specifically mentions a number of
these listed actions as among those EPA may take.
28 SDWA Section 1431(b).
18
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WSG No. 87
FOOTNOTES
(Continued)
29 Guidance on CERCLA Section 106(a) Unilateral Administrative
Orders for Remedial Designs and Remedial Actions, U.S. EPA,
OSWER Directive No. 9833 0-la, March 13, 1990.
Guidelines for Using the Imminent Hazard, Enforcement and
Emergency Response Authorities of Superfund and Other
Statutes, U.S. E P A , Final Revised Guidance
Memorandum On The Use and Issuance of Administrative Orders
Under Section 7003 of the Resource Conservation and Recovery
Act (RCRA), U.S. EPA. September 26, 1984.
Guidance on Using Order Authority under Section 112 (r) (9) of
the Clean Air Act, as Amended, and on Coordinated Use with
Other order and Enforcement Authorities, U.S. EPA, April 17,
1991.
30 See H.R. 93-1185 at 35.
31 See U.S. v. Conservation Chemical Co., 619 F. Supp. ^93
(because of scientific and medicaluncertaintie, proof: with
certainty is impossible).
32 See U.S. v. Hooker Chemicals & Plastics Corp., 101 F.R.D.,
451, 455 (W.D.N. Y. 198 : ) .
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WSG No. 87
ATTACHMENT 1
Citation from 42 USC 330i, (SDWA Section 1431)
SEC. 1431. (a) Notwithstanding any other provision of this
title, the Administrator, upon receipt of information that a
contaminant which is present in or is likely to enter a public
water system or an underground source of drinking water may
present an imminent and substantial endangerment to the health of
persons, and that appropriate State and local authorities have
not acted to protect the health of such persons, may take such
actions as he may deem necessary in order to protect the health
of such persons. To the extent he determines it to be
practicable in light of such imminent endangerment, he shall
consult with the State and local authorities in order to confirm
the correctness of the information on which action proposed to be
taken under this subsection is based and to ascertain the action
which such authorities are or will be taking. The action which
the Administrator may take may include (but shall not be limited
to) (1) issuing such orders as may be necessary to protect the
health of persons who are or may be users of such system
(including travelers) , including orders requiring the provision
of alternative water supplies by persons who caused or
contributed to the endangerment, and (2) commencing a civil
action for appropriate relief, including a restraining order or
permanent or temporary injunction.
(b) Any person who violates or fails or refuses to comply
with any order issued by the Administrator under subsection
(a) (1) may, in an action brought in the appropriate United States
district court to enforce such, order, be subject to a civil
penalty of not to exceed $5,000 for each day in which such
violation occurs or failure to comply continues.
20
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WSG NO. 3 7
ATTACHMENT 2
Citation from H.R. Rep. No. 93-1185, 93rd Cong., 2d Sess.
section 1431 reflects the Committee's determination to
confer completely adequate authority to deal promptly and
effectively with emergency situations which jeopardize the health
of- persons.
The authority conferred by this section is intended to
override any limitations upon the Administrator's authority found
elsewhere in the bill. Thus, the section authorizes the
Administrator to issue such orders as may be necessary (including
reporting, monitoring, entry and inspection orders) to protect
the health of persons, as well as to commence civil actions for
injunctive relief for the same purpose.
The authority to take emergency action is intended to be
applicable not only to potential hazards presented by
contaminants which are subject to primary drinking water
regulations, but also to those presented by unregulated
contaminants.
The authority conferred hereby is intended to be broad
enough to permit the Administrator to issue orders to owners or
operators of public water systems, to State or local governmental
units, to State or local officials, owners or operators of
underground injection wells, to area or point source polluters,
and to any other person whose action or inaction requires prompt
regulation to protect public health. Such orders may be issued
and enforced notwithstanding the existence of any exemption,
variance, permit, license, regulation, order, or other
requirement. Such orders may be issued to obtain relevant
information about impending or actual emergencies, to require the
issuance of notice so as to alert the public to a hazard, to
prevent a hazardous condition from materializing, to treat or
reduce hazardous situations once they have arisen, or to provide
alternative safe water supply sources in the event any drinking
water source which is relied upon becomes hazardous or unusable.
Willful; violation of the Administrator's order is made
punishable by a fine of up to $5,000 per day of violation.
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WSG No. 87
ATTACHMENT 2
(Continued)
Citation from H.R. 'Rep. No. 93-1185, 93rd Cong., 2d Sess.
In using the words "that appropriate State or local
authorities have not acted to protect the health of persons," the
Committee intends to direct the Administrator to refrain from
precipitous preemption of effective State and local emergency
abatement efforts. However, if State or local efforts are not
forthcoming in timely fashion or are not effective to prevent or
treat the hazardous condition, this provision should not bar
prompt enforcement by the Administrator.
In using the words "imminent and substantial endangerment to
the health of persons," the Committee intends that this broad
administrative authority not be used when the system of
regulatory authority provided elsewhere in the bill could be used
adequately to protect the public health. Nor is the emergency
authority to be used in cases when the risk of harm is remote in1
time, completely speculative in nature, or de minimis in degree.
However, as in the case of U.S. v. United States Steel, Civ. Act.
No. 71-1041 (N.D.Ala.1971) , under the Clean Air Act, the
Committee intends that this language be construed by the court,
and the Administrator so as to give paramount importance to the
objective of protection of the public health. Administrative and
judicial implementation of this authority must occur early enough
to prevent the potential hazard from materializing. This means
that " imminence" must be considered in light of the time it may
take to prepare administrative orders or moving papers, to
commence and complete litigation, and to permit issuance,
notification, implementation, and enforcement of administrative
or court orders to protect the public healths.
Futhermore, while the risk of harm must be "imminent" for
the Administrator to act, the harm itself need not be. Thus, for
example, the Administrator may invoke this section when there is
an imminent likelihood of the introduction into the drinking
water of contaminants that may cause health damage after a period
of latency.
Among those situations in which the endangerment may be
ragarded as "substantial" are the following: (i) a substantial
likelihood that contaminants capable of causing adverse health
affects will be ingested by consumers if preventive action is, not
taken; (2) a substantial statistical probability that disease
will result from the presence of contaminants in drinking water;
or (3) the threat of substantial or serious harm (such as
exposure to carcinogenic agents or other hazardous contaminants).
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¦ ¦
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAR 7 I9m
OSWER Directive Number 9833.0-la
MFIMOR ANDITM
SUBJECT: Guidance on CERCLA Section 106(a) Unilateral
Administrative Orders for Remedial Designs and Remedial
Actions
FROM: . Don R. Clay, Assistant Administrator
f fice of Solid Waste and Eoergency Response
James M. Strock, Assistant Administrator
Office of Enforcement and Compliance Monitoring
TO: Regional Administrators,
Regions I-X
I. Introduction
This memorandum sets forth general principles governing the
Agency's unilateral administrative order authority for remedial
designs and remedial actions under section 106(a) of the
Comprehensive Environmental Response,' Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (CERCLA or Superfund)Policies and
procedures to be followed when issuing unilateral orders for
remedial actions are provided.
The memorandum has the following sections:
o Introduction
o The Role of Unilateral Orders in the CERCLA Remedial
Process
'This memorandum 'and the forthcoming memorandum entitled
"Guidance on the Issuance of CERCLA Section 106(a) Administrative
Orders for Removal Actions, " together supersede the September 8,
1983 "Guidance Memorandum on Use and Issuance of Administrative
Orders under $106(a) of CERCLA" (OSWER Directive number 9633.0)
and the February 21, 1984 guidance on "Issuance of Administrative
Orders for Immediate Removal Actions" (OSWER Directive number
9833:1A). Changes to the guidances are-the result of statutory
amendments and evaluation of Agency experience.
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OSWER Directive Number 9833.0-la
o Legal-Aspects of Section 106 Orders for Remedial
Design/Remedial Action
- Background Information about Section 106
Authorities
- Statutory Requirements of Section 106
Administrative Orders
- Judicial Review of Unilateral
Orders
o Possible Recipients of Unilateral Orders
o Case Specific Considerations
- Decision Whether to Issue an Order
- Determining the Identity of the Respondents
o Elements of Unilateral Orders
o Modification of Unilateral Orders
o Procedures Relating to Issuing Unilateral Orders.
- Special Notice Procedures
- The Conference
o Specialized Forms and Use of Unilateral Orders
o Continued Negotiation After Issuance of an Order
o Noncompliance with Unilateral Orders
o Note on Purpose and Use of this Memorandum
Appendix A defines section 106 unilateral and consent
orders, and their judicial counterparts.
This memorandum applies to all CERCLA section 106 unilateral
orders, issued to compel Potentially Responsible parties (PRPs)
to conduct remedial designs- and remedial actions. For a
discussion of settlement principles relevant to remedial actions,
see the "Interim CERCLA Settlement Policy," dated December 5,
1984 (OSWER Directive number 9835.0), also published at 50 FR
5034, February 5, 1985) .'A guidance on the issuance of CERCLA
§106(a) administrative orders for removal actions is under
development.
'This guidance does not specifically address CERCLA remedial
action at Federal facilities. See the "Federal Facility.
Compliance Strategy" (Office of External Affairs, November 1988)
for information about CERCLA enforcement actions against Federal
facilities, and the "Federal Facilities Negotiation Policy,"
(OSWER, August 1989) .
'For information on CERCLA enforcement practices relating to
municipalities, see the "Interim Policy on CERCLA Settlements
Involving Municipalities and Municipal Wastes," (December 6,
1989) (OSWER Directive number 9834.13).
2
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OSWER Directive Number 9833.0-la
II. The Role of Unilateral Orders in the CERCIA Remedial Program
An objective of Superfund enforcement is to place ultimate
responsibility for the costs of cleaning up Superfund sites on
those who contributed to the problem. EPA prefers to obtain
private-party response action through the negotiation of
settlement agreements with parties willing to do the work.
When viable private parties exist and are not willing to reach a
timely settlement to undertake work under a consent order or
decree, or prior to settlement discussions in appropriate
circumstances, the Agency typically will compel private-party
response through unilateral orders. if the PRPs do not comply
with the order, EPA may fund the response or may refer the case
for judicial action to compel performance and recover penalties.
Unilateral orders should be considered as one of the
primary enforcement tools to obtain RD/RA response by PRPs.
Unilateral orders can provide an incentive for PRPs to settle,
can help to control settlement negotiation deadlines, and can be
used to force commencement of wars at the site when settlement
cannot be reached. Unilateral orders can also help to encourage
the organization and coalescence of disorganized PRPs. Because
many PRPs promptly comply with unilateral orders, they also help
to conserve the limited funds available for government-financed
cleanup.
If PRPs do not comply with unilateral orders, the Agency has
the flexibility to determine whether to perform a Fund-financed
cleanup and seek to recover those costs from the PRPs(through a
judicial referral for cost recovery, punitive damages', and
penalties. The Agency also may prepare a referral for judicial
enforcement action pursuant to section 106, to compel compliance
and to exact penalties. Regardless of the route the Agency
chooses to take upon noncompliance with a unilateral order, PRPs
remain potentially liable for the response action. Federal
courts can compel PRPs to conduct the response action and impose
penalties. If the Agency chooses to clean up the site with the
Fund, at a minimum tne PRPs will be potentially liable for cost
recovery of the funds expended. In addition, Federal courts can
4CERCU §107 (c)(3) authorizes punitive damages, from one to
three times the costs incurred by the Fund.
SCERCLA section 106(b)(1) provides that "any person who,
without sufficient cause, willfully violates, or fails or refuses
to comply" with any order, may be fined up to $25,000. for each
day in wnich the violation occurs or the failure to comply
continues.
3
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OSWER Directive Number 9833.0-la
compel PRPs to pay penalties, as Well as punitive damages of up
to three times the costs incurred by the Fund.
Regions should incorporate issuance of unilateral orders
into their site management plans consistent with the following
general principles. First, in the context of orders for rd
and/or RA, during the RI/FS, the Region should review the PRP
search to ensure that it is complete.,
Second, apart from liability, the development of the factual
basis for the response action required in the order should begin
during the RI/FS process. When reviewing deliverables during the
RI/FS, a Region should always keep in mind that a unilateral
order may need to be issued on the basis of the RI/FS. The
Region should ensure that documents developed during the RI/FS
contain enough information to support all the findings necessary
to support issuance of a unilateral order, i.e., that because of
an actual release or threat of release of one or more hazardous
substances from a facility there may be an imminent and
substantial endangerment to the public health or welfare or the
environment. It is important to pay particular attention to the
baseline risk assessment. Baseline risk assessments provide an
evaluation of the potential threat to human healthsand the
environment in the absence of any remedial action,They provide
a basis for determining whether or not remedial action is
'Before a unilateral order is issued, the results of any
health assessment issued by the Agency for Toxic Substances and
Disease Registry (ATSDR) also should be reviewed for consistency
with the order. Nonetheless, unavailability of, or the
possibility of differences with, an ATSDR health assessment
should not discourage issuance of a unilateral order. ATSDR's
assessments and EPA's risk assessments are based on different
methodologies, with different purposes. ATSDR's health
assessments are preliminary assessments usually performed before
the site remedial investigation has been completed. The main
purpose of the ATSDR health assessment is to determine if there
is a significant risk to human health requiring steps to reduce
exposure such as providing alternate water supplies or relocating
individuals. ATSDR also uses the results of tne health
assessment to determine if additional studies such as
epidemiological studies or health surveillance programs should be
performed. As a result, the ATSDR health assessment and EPA's
risk assessment may reach different conclusions in some
circumstances. Where an ATSDR health assessment (done before the
decision document is signed) appears to be different from EPA
risk assessment results, the difference should be addressed in
the administrative record for the selection of the response
action.
4
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OSWER Directive Number 9833.0-la
necessary and a justification for performing remedial action.
They will also be used to support imminent and substantial
endangerment findings in section 106 orders. in addition, a
statement of work (SOW) may be included or referenced in the
order.
The third general principle to be followed is that the
issuance of unilateral orders must be considered before a Fund-
financed response can proceed at a site. Unilateral orders are
typically to be issued at the end of the special notice period if
settlement is not reached at a site, an extension of negotiations
is not warranted, and the case meets statutory criteria and case
specific considerations set forth in this guidance. Also,
unilateral orders should be issued routinely before cases are
referred to the Department of 'Justice (DOJ) under section 106.'
Unilateral orders can be used to establish a case for seeking
treble damages in the event of noncompliance by the PRP and where
the Fund is used to clean up the site.
In cases where the Region decides not to issue a unilateral
order, prior to commencing a Fund-financed response, the Region,
must prepare a written justification explaining the decision not
to issue a unilateral order.' a copy of the justification must
be kept in the Region's enforcement files. Examples of instances
where adequate justification may exist include those cases which
7ln such instances, the SOW is an integral part of a
unilateral order because it provides the detailed requirements
for the development of the RD/RA workplans and reporting
requirements.
8See "Guidance on CERCLA Section 106 Judicial Actions,"
February 24, 1989 (OSWER Directive number 98.35.7).
'The Region should notify Headquarters in writing at least
two weeks prior to obligation of funds with the reasons for not
proceeding with a unilateral order. The written explanation
should describe in general terms the reasons for not going
forward with the order. The written explanation should come from
the Regional Waste Management Division Director (after
consultation with the Office of Regional Counsel) to the
Director, OWPE. The Regions should also send a copy to the
Associate Enforcement Counsel, OECM-Waste. Additional
information on procedures to follow where a Region decides not to
issue a unilateral order prior to commencing a Fund-financed
response may be issued periodically. See "Use of CERCLA Section
106 Unilateral Enforcement for Remedial Design and Remedial
Action: Strategy for Fiscal Year 1990," February 14, 1990 (OSWER
Directive number 9870.149.)
5
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OSWER Directive Number 9833.0-la
do not meet-the statutory criteria, or where case specific
considerations for not issuing a unilateral order exist.
Statutory criteria are discussed in section III of this guidance;
case specific considerations are discussed in section V.
The site management plan should anticipate possible
noncompliance with the order, and include a course of action that
may be followed. In determining whether to enforce the
unilateral order, Regions should consider the importance of
maintaining section 106 judicial enforcement as a credible threat
to PRPs, as well as the availability of funds for Agency
response.
III. Legal Requirements of Section 106 Orders for Remedial
Design/Remedial Action
A) Backaround Information about Section 106 Authorities
Two types_ of administrative orders under section 106 of
CERCLA may be issued. Consent orders may be issued to formalize
removal and RI/FS settlements. Unilateral orders may be issued,
to compel a party undertake conventional removal actions,
RI/FS activities, or RD/RA work where a settlement was not
reached. ^Consent orders are not within the scope of this
guidance."1 See Appendix A for more detail on when consent
orders under section 106 may be used.
"This guidance should not be construed as limiting in any
way EPA's enforcement discretion to issue §106 orders.
"Agency policy favors use of consent orders for RI/FSs.
See the "Administrative Order on Consent for Remedial
Investigation/ Feasibility Study," (OSWER Directive number
9835.19) .
"CERCLA 0122(d) (1) (A) requires that Agency agreements
entered into under §122 with respect to remedial action must be
in the form of a consent decree, entered in the appropriate
United States district court. Other vehicles, including orders,
may be used for remedial design. See "Initiation of PRP-financed
Remedial Design in Advance of Consent Decree Entry," (November
18, 1988) (OSWER Directive number 9835.4.2A).
6
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OSWER Directive Number 9833.0-la
B) ) Statutory Requirements of Section 106 Administrative
Qldfitg
CERCLA section 106(a) provides as follows:
In addition to any other action taken..., when the President
determines that there may be an imminent and substantial
endangerment to the public health or welfare or the
environment because of an actual or threatened release of a
hazardous substance from a facility, he may require the
Attorney General of the United States to secure such relief
as may be necessary to abate such danger or threat.... The
President may also, after notice to the affected State,
take other action under this section including, but not
limited to, issuing such orders as mav be necessary to
protect public health and welfare ana the environment.
Consistent with the statute, administrative orders issued
under section 106 may be issued if a release or threat of a
release of a hazardous substance from a facility may present an
imminent and substantial endangerment to public health, welfare,
or the environment. The order must include findings on the
hazardous substance(s), the nature of the release or threat of a
release, the location of the release [i.e., the location is a'
"facility"], the nature of, and basis for the finding of, a
possible imminent and substantial endangerment.
It is important that the link between the release, the
possible endangerment, and the response action to abate the
possible endangerment mandated by the order, be clearly presented
in the order. The findings of fact section should describe the
problem at the site and state that "the actions specified in the
ROD and required by this order will protect the public health,
and welfare, and tne environment-
Finally, before an order may be issued, the affected'State
must be notified.11 The statutory requirements of a section 106
order are described in more detail below.
1 ) Evidence of a Release or Threatened Release of a
Hazardoua Substance
A "hazardous substance" is generally defined in CERCLA
section 101(14) as any substance, waste or pollutant designated
"Section 106(a) requires notice to the affected State
before issuing an administrative order. See additional
discussion in this section, at B(4).
7
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OSWER Directive Number 9833.0-la
pursuant to -sections 307(a) and 311(b)(2)(A) of the Clean Water
Act, section 112 of the Clean Air Act, 0r section 102 of CERCLA
any imminently hazardous chemical substance or mixture with
respect to which the Administrator has taken action pursuant to
section 7 of the Toxic Substances Control Act, or any hazardous
waste having the characteristics identified under or listed
pursuant to section 3001 of the Solid Waste Disposal Act...."1
See 40 C.F.R. Part 302 for a list of hazardous substances."
Under CERCLA section 101(22), "release" is defined as any
spilling, leaking; pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the environment (including the abandonment or discarding of
barrels, containers, and other closed receptacles qpntaining any
hazardous substance or pollutant or contaminant).' The
determination of whether there is an actual or threatened release
depends upon several considerations. An actual release usually
should be observable in some form, whether visually or through
analysis showing the presence of contaminants in samples of soil,
water, or air. The threat of a release, however, involves
releases that have yet to occur or find their way into the
environment. A surface impoundment that is about to overflow
because of rain is an example of a threatened release.
:"CERCLA §101(14) excludes from the definition of hazardous
substance: "...petroleum, including crude oil or any fraction
thereof which is not otherwise specially listed or designated as
a hazardous substance under subparagraphs (A) through (F) of this
paragraph, and...natural gas, natural gas liquids, liquified
natural gas, or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas").
15Note that this list is not the exclusive list of hazardous
substances. Some RCRA [characteristic] wastes mav not be listed
in 40 C.F.R. 302, but would still be hazardous sutstances if they
meet any of four characteristic criteria under 49 C.F.R. §261.20.
"The statute excludes some activities from the definition
of a release. CERCLA §101(22) excludes from the definition of
release "any release which results in exposure to persons solely
within a workplace, with respect to a claim which such persons
may assert against the employer of such persons...; emissions
from the engine exhaust or a motor vehicle, rolling stock,
aircraft, vessel, or pipeline pumping station engine: release of
source, byproduct, or special nuclear material from a nuclear
incident...11
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OSWER Directive Number 9833.0-la
For RD/RA, the release^or threat of a release will have been
documented during the RI/FS." This information must be
identified in reasonable detail in the order.
2) Evidence that the Release or Threatened Release is
from a Facility
The release or threat of a release must be from a
"facility." A facility is broadly defined in CERCLA section
101(9) as:
(A) any building, structure; installation, equipment, pipe
or pipeline (including any pipe into a sewer or publicly
owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill; storage container1, motor
vehicle, rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed,, or otherwise come to be located, but
does not include any consumer product in consumer use or any
vessel.
When read together with CERCLA section 101(17) and (18),
this definition includes any on-shore or off-shore sites, not to
exclude land transportation facilities, from which releases or
threats of releases may originate. The administrative order must
specify the physical location of the release. This establishes
that the release was from a facility.
3) Evidence of a Possible Imminent and Substantial
Endangerment
An endangerment is a threatened or potential harm. An
endangerment is imminent if the conditions that give rise to it
are present, even though the harm might not be realized for
years. An endangerment is substantial if there is reasonable
"information relevant to the release or threat of release
documented during the RI/FS should be referenced in the order,.
and included in the administrative record for selection of the
response action.
F. Goodrich Co . v. Murtha, 697 F. Supp. 89 (D. Conn.
1988) : United States v. Conservation Chemical Co. 619 F. Supp.
162 (W.D. Mo. 1985); United States v. Ottati and Goss. Inc., 630
F. Supp. 1361 (D. N.H. 1985); United States v. Northeastern
Pharmaceutical and Chemical Co. ("NEPACCOY"), 579 F. Supp. 823
(W.D. Mo. 1984), aff'd in part and rev'd in Dart on other
grounds 810 F.2d 726 (8th Cir. 1986), cert, den., 484 U.S. 1008
(1987) ; United States v. Reilly Tar & Chemical Corp,
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OSWER Directive Number 9333.0-la
cause to believe that someone or something may be exposed to a
risk of harm from a release or threatened release." x^is
statutory element has been judicially interpreted to require only
a limited showing. The mere threat of harm'or potential harm to
public health, public welfare, or the environment is
sufficient.30 The endangermer.t need not be immediate to be
imminent.
Courts have heLd that there cnay be an imminent and
substantial er-dangermsirt when:
o Numerous hazardous substances are present at, and being
released into the environment from a site that is
accessible to humans and. wildlife;31
o A relatively small quantity of hazardous substances
that are toxic at low dosage levels are substantially
likely to enter the groundwater and result in human and
environmental exposure;15
o Contaminated groundwater flows J.n the direction of a
subdivision using well water;3'
o Numerous hazardous substances have reached private
drinking water wells and have contaminated the
groundwater and surface waters;3'
Supp. 1100 (D. Minn. 1982) .
"Conservation Chemical, at 195-96.
"Conservation Chemical, at 175, 193-94; Ottati & Goss, at
1394 .
2lConservat ion Chemical, at 175, 196-97.
"NEPBCCO, 579 F.,Supp. at 84 6.
''United States v. Seymour Recycling Corp. ,618 F. Supp. 1
(S.D. Ind. 1984).
''United Stats v. Kardage, 18 Env't Rep. Cas. (BNA) 1685
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OSWER Directive Number 9833.0-la
o Numerous hazardous substances are migrating from a
facility and have contaminated the soil and
groundwater."
The above list is far from exhaustive.
For RD/RA unilateral orders, the endangerment should have
been documented in the baseline risk assessment. This risk
assessment should also be used to support the determination of a
possible imminent and substantial endangerment.!S No additional
resources should be required to support the finding of a possible
imminent and substantial endangerment.
The possible imminent and substantial endangerment must be
set forth in the order. it is useful to include findings in the
order which describe the potential or actual risk from the
concentration levels detected in the release. However, such
information is not required in the order itself to establish a
possible imminent and substantial endangerment.
4) Notice to Affected States
CERCLA section 106(a) authorizes the Agency to issue such
orders as may be necessary to protect public health and welfare
and the environment, after giving notice to the affected State."
The affected State is interpreted to be the State where the
facility is located, and in which the cleanup will be conducted.
Notice is usually given to the Director of the State's pollution
control agency. For the RD/RA, circumstances generally permit
written notification to the State prior to issuing the unilateral
"See Ot-tat-A and floss. 630 F. Supp. 1361.
"See the guidance "Risk Assessment Guidance for Superfund."
As updated, this guidance presently consists of the following two
volumes: the "Human Health Evaluation Manual," (October 1989)
(OSWER Directive number 9285.7-Ola), and the "Environmental
Evaluation Manual, " March 1989 (OSWER Directive number 9285.7-02)
[EPA/5401-89/001]. See also the "Interim Final Guidance on
Preparing Superfund Decision Documents," June 1989, (OSWER
Directive number 9355.3-02).
"CERCLA §101(27) defines State to include "the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American-Samoa, the United
States Virgin Islands, the Commonwealth of the- Northern Marianas,
and any other territory or possession over which the United
States has jurisdiction." It is EPA policy to give Indian tribes
equivalent notification.
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OSWER Directive Number 9833.0-la
order. In the event that verbal notice is given, a telephone
conversation log should be retained.
C) Judicial Review of Unilateral Orders
CERCLA precludes PRPs from initiating court proceedings to
challenge a unilateral order upon receipt. Under CERCLA section
113 (h) , courts may review section 106 orders only when the Agency
seeks to enforce the order, the Agency seeks penalties for
violation of the order, or the PRPs seek reimbursement from EPA
of response costs incurred after compliance with the order/3
Therefore, if PRPs refuse to comply with a unilateral order, the
Agency may use the Fund to clean up the site, without first
defending its actions in court.
Once in a court proceeding where the validity of the order
is properly at issue, section 113 (j) (1) of CERCLA provides that
judicial review of any issues concerning the adequacy of any
respons,e action is limited to the administrative record. The
Agency already will have compiled the administrative record for
the selection of the remedy. This record will, include
information on the release, the possible, endangerment, and the
response action required.
IV. Possible Recipients of Unilateral Orders
CERCLA section 106 does not specify the parties to whom an
order may be issued. Under section 107(a), parties liable under
CERCLA are:
(1) the owner and operator of a vessel or a facility: (2)
any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such
hazardous substances were disposed of; (3) any person who by
contract, agreement, or otherwise arranged for disposal or
treatment of hazardous substances...; and (4) any person who
accepts or accepted any hazardous substances for transport
to disposal or treatment facilities, incineration vessels or
sites selected by such person....
These parties may receive a section 106 order. However,
section 106 does not limit issuance of orders to these PRPs. In
appropriate 'cases, unilateral orders may be issued to parties
other than those specified in section 107(a), if actions by such
"Section 113(h) also allows judicial review in the context
Of §107 cost recovery actions, §310 citizen suits, and §106
injunctive action.
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OSWER Directive Number 9833.0-la
parties are necessary to protect the public health, welfare, or
the environment. For example, a unilateral order may be issued
to the owner of land adjoining the site, to obtain site access.29
A unilateral order also may be issued to prevent a non-PRP from
interfering with a response action.50
The order generally should specify that each of the PRPs
named as respondents is jointly ana severally liable to carry out
all obligations imposed by the order unless there is a clear
divisibility of harm at a site. The Agency typically will not
allocate work required by the unilateral order among the
respondents. For example, an order can require multiple PRPs to
perform all activities required by the order, as well as require
the submission of one consolidated work plan from all
respondents. The order should specify that the. failure'of one or
more of the respondents to comply witn all or any part of the
order shall not in any way excuse or justify noncompliance by any
other respondent. In the limited context of mixed work or carve-
out orders (see section IX of this guidance), it may be
appropriate for certain parts of a response action to be included
in a settlement and other parts of a response action to be
included in an order.
V. raHft Specific, Conaideratinns
A. Deciaion Whether to Issue an Order
In addition to the statutory requirements of unilateral
orders described above, additional factors need to be considered.
When the statutory requirements for issuing unilateral orders are
present, unilateral orders should be issued to parties who meet
the following criteria.
"Usually, the Agency uses the broad access authority in
§104 (e) , but has also been successful under §106 as well. See
B.F. Goodrich Co. v. Murtha. 697 F. Supp. 89 (D. Conn. 1988) .
(The court upheld EPA's use of a 106(a) order to obtain site
access, stating that section 106 "is broadly worded to authorize
all relief, 'necessary to abate [the] danger or threat.' There is
no express restriction on the nature of the relief authorized
except as equity and the public interest may require.") 697 F.
Supp. at 94.
"Note, however, that much of this guidance pertains to PRPs
and may be inapplicable to orders issued to non-PRPs.
"Not all of the criteria apply to parallel unilateral
orders, which are described generally in section IX.
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OSWER Directive Number 9833.0-la
1) Evidence that the Parties are Liable "
Unilateral orders should be issued based upon adequate
evidence of the PRP's liability." Evidence sufficient to
support the liability of each PRP named as a respondent needs to
be in EPA's possession. PRP searches, including section 104(e)
information requests, should establish PRP liability prior to the
RD/RA stage. The PRP search should be supplemented as needed
during the RI/FS. A unilateral order may be amended to include
additional PRPs after further evidence has been developed.
2) PRPa are Financially Viable
The financial viability of PRPs should be considered before
an order is issued." EPA should have a reasonable belief that
the PRPs collectively have adequate financial resources before
the Agency issues an order that directs them to conduct the
"remedial action. Once a decision to issue an order is made, it
may include PRPs who have modest means or an unclear financial
posture, especially where such PRPs contributed considerable
amounts of hazardous substances to the site. Generally, the
order should not include PRPs that lack any substantial
resources, unless the activities required of those persons do not
involve expenditures of money (e.g., providing access).
"Unilateral orders may also be issued to parties other than
those listed in $107(a). See discussion in section IV.
"The order should state the facts relating to PRP
liability. The extent of detail necessary may be determined on a
case-by-case basis by the Region. (It should also be noted that
liability of a particular person is not required for the Agency
to issue an order to that person. An example of this is an order
to obtain access. See discussion in Section IV above.)
!,It is important that the early requests for information
concerning PRPs be developed fully to support liability under
§107 of CERCLA. See the "PRP Search Supplemental Guidance for
Sites in the Superfund Remedial Program," June 29, '1989 (OSWER
Directive number 9835.7).
15See the February 24, 1989 "Guidance on CERCLA Section 106
Judicial Actions," (OSWER Directive number 9835.7) for a listing
of sources that may be consulted when determining the financial
capability of PRPs.
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OSWER Directive Number 9833.0-la
3) The Response Action Is Specifically Identified
unilateral orders should specifically define the response
action required, to the maximum extent possible, a specifically
identified response action is required for implementation by the
PRPs, for the Agency to determine compliance, and for the order
to be legally enforceable. For RD/RA actions, the order should
reference the ROD and specify a schedule of deliverables. Often,
the order should also include a statement of work.
4) PRPs have Technical Capability and Agency Oversight is
Feasible
The technical difficulty of response actions should be
considered before issuing unilateral orders. in certain
circumstances, EPA may conclude that the PRPs are unlikely to
properly perform the RD or RA, even with good oversight. jn
context, it may be appropriate to fund the design. in addition,
in some instances EPA may fund the remedial action.
B) Determining the Identity of the Respondents
In general, present. owners and operators and viable past,
owner(s) and operator(s) of the site at the time of disposal
should be named as respondents. At a minimum, the present owners
and operators must provide access. The Agency will also
generally consider naming parties who arranged for disposal or
treatment of hazardous substances. when there are multiple PRPs,
the Agency may consider the aggregate volume (percentage of
total) ana aggregate financial viability of all the PRPs to be
named.1' When evaluating whether to name an individual PRP in an
order, the PRP's contribution to the site (volume and nature of
substances), and financial viability should be considered. The
Agency should consider naming the largest manageable number of
parties. Relevant evidentiary concerns must also be considered
when deciding which PRPs to name in an order. In addition,
consideration should be given to whether potential
"here there are multiple PRPs, the fact that they have
formed some type of PRP organization will not affect their
individual liability.
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OSWER Directive Number 9833.0-la
respondents will have a^valid "sufficient cause" defense" or a
section 107(b) defense,, Parties who would clearly have a valid
defense to an EPA action following the parties' failure to
comply should not be named in the unilateral order.
VI. Elements of Unilateral Orders
The following elements should be included in unilateral
orders. The contents of several key provisions are discussed
below."
o Introduction and Jurisdiction
0 Findings of Fact
0 Conclusions of Law and Determinations
0 Notice to the State
0 Order
0 Definitions
0 Notice of Intent to Comply
0 Parties Bound
0 Work, to Be Performed
0 Failure to Attain Performance Standards
0 EPA Periodic Review
0 Endangerment and Emergency Response
0 EPA Review of Submissions
0 Progress Reports
0 Quality Assurance, Sampling and Data Analysis
0 Compliance with Applicable Laws
0 Remedial Project Manager
"More information about the sufficient cause defense will
be discussed in the forthcoming Interim Guidance on Enforcement
of CERCLA Section 106(a) Administrative Orders Through Section
107(c)(3) Treble Damages and Section 106(b)(1) Penalty Actions.
"CERCLA 107(b) lists several defenses to CERCLA liability
for a PRP who can establish by a preponderance of the evidence
that the release or threat of release of a hazardous substance
was caused solely by (1) an act of God; (2) an act of war: (3) an
act-or omission of a third party other than that which occurred
in connection with a contractual relationship, if due care was
exercised and certain precautions against foreseeable acts or
omissions taken: or (41 a combination of these defenses.
"A §106 model unilateral order for remedial designs and
remedial actions is under development. See the "Model Unilateral
Administrative Order for Remedial Design and Remedial Action,-"
(OSWER Directive number 9833.0-la).
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OSWER Directive Number 9833.0-la
o Access to Site Not Owned By Respondent(s)
o Site Access and Data/Document Availability
o Record Preservation
o Delay in Performance
o Assurance of Ability to Complete Work
o Reimbursement of Response Costs (Optional)
o United States Not Liable
o Enforcement and Reservations
o Administrative Record
o Effective Date and Computation of Time
o Opportunity to Confer
o Termination and Satisfaction
The "introduction and jurisdiction" section of the order
should set forth EPA's authority under CERCLA section 106 to
issue unilateral orders. It should reiterate the delegation of
this authority to the EPA Regional Administrator, and, if the
order is signed by a subordinate,. delegation from the RA to that
subordinate.
The "findings of fact" section should identify and describe
the conditions' at the site in detail to support the finding of
release or threatened release from a "facility." it should
identify the hazardous substances at the site to the extent
known.
This section should also describe the underlying factual
basis for the conclusion that there may be an imminent and
substantial endangerment because of a release or threatened
release of those substances." To support this conclusion, the
findings of fact section should contain a brief summary of data
from the remedial investigation which shows the extent of
contamination at the site and exposure pathways and establishes
the predicate for the response action. The data regarding
contamination at the site and risk assessment should be contained
in the administrative record for the selection of remedy. This
information should be summarized in the ROD. Both of these
documents should be referenced in the order.
The findings of fact section should also state factual
information to support the elements of liability alleged, if a
PRP is to be included in the order under a "successor," "alter
ego," or other complex liability theory, the findings-of fact
section should explain the factual basis to support those
theories.
"The risks should be set forth in the baseline risk
assessment and ROD. A tologist should be consulted in regard
to this portion of the order.
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OSWER Directive Number 9833.0-la
The "conclusions of law and determinations" section of the
order, together with the "notice to the State", should include
conclusions that meet the statutory requirements for a unilateral
order. The conclusions of law section should additionally
establish that the parties, are appropriately subject to section
106 authority, as described in sections III and IV above.
The "notice of intent to comply"" section should require
each respondent to provide written notice to EPA, no later than
five days after the effective date of the order, of the
respondent's unconditional intent to comply with the terms of the
order. The order should also specify that failure to respond by
this deadline will be considered noncompliance, and may trigger
an Agency decision to file a judicial action or start Fund-
financing. The "notice of intent to comply" section should
require the respondent to provide notice of and the basis for any
sufficient cause defense which may be available to a respondent
and which the respondent will pursue to contest liability for
complying with the order. To the extent that the respondent's,
sufficient cause defense is based on an allegation that the
response action ordered was inconsistent with CERCLA or the NCP,
the Agency believes that the respondent may rely only on the
administrative record for the response action. This is because
section 113 (j) provides that "in 'any judicial action under this
Act" the validity of response actions shall be adjudicated "on
the administrative record". The order should specify that all
information relating to a sufficient cause defense must be
submitted in writing, at the same time that the respondent's
notice of intent to comply is provided.
The "work to be performed"^section should clearly order
respondent to implement the ROD,J (and the RD if completed) and
toward that end, to implement the statement of work (SOW) .
This section of the order should describe the content of and
schedule for the work plan, sampling and analysis plan, and site
health and safety plan, and should specifically require the
respondent's performance to implement these plans following EPA's
"A PRP's notice of intent to comply applies to all of the
requirements of the order, beginning from tne effective date and
continuing through all, of the deliverables and activities
required by the order.
"As modified by an Explanation of Significant Differences
document, or ROD amendment, if applicable.
"Where a statement of work is used, it must be attached and
incorporated by reference into the order.
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OSWER Directive Number 9833.0-la
approval or modification. This section of the order should also
specify major deliverables. Listing the major deliverables and
providing a performance schedule in the unilateral order should
help to minimize the submission of late or inadequate products.
Clearly delineating the major deliverables and due dates will
also assist in subsequent enforcement of these provisions of the
order.
The "work to be performed" section should also require the
respondent to provide prior written notification to the receiving
state of any off-site shipments of hazardous substances."
Regions should schedule delivery of the work plan as soon as
reasonably possible after the order1s. effective date'. Thi?
promptly initiates the work and serves as an early indication of
a PRP's actual compliance with the order.
The "delay in performance" section should require the
respondent to provide written notification to EPA in the event of
any delay or anticipated delay in complying with the order.
The "United States Not Liable" section explains that the
United States, by issuing the order, does not assume any
liability for any injuries or damages to persons or property
resulting from acts or omissions by respondent(s), or its
employees, agents, successors, assigns, contractors or
consultants m carrying out any action or activity pursuant to
the order. In addition, this section should state that neither
EPA nor the United States is to be construed as a party to any
contract entered into by the respondent in carrying out any
action required by the order.
The "enforcement and reservations" section of the order
should reiterate the Agency's ability to clean up the site with
Fund money, or seek judicial enforcement. The unilateral order
should expressly reserve the Agency's takeover rights as
including, but not being limited to, the following circumstances:
(1) the PRPs fail to indicate -a willingness to comply with 'the
unilateral order by the response date: (2) the period for
compliance with any requirement of the order expires without such
compliance: (3) PRPs perform inadequately or submit
unsatisfactory deliverables, or (4) the immediacy of the threat
is such that a Fund-financed response, or a judicial order to
ensure compliance, becomes necessary,- This section' should also
"See "Notification of Out-of-State Shipments of Superfund
Site Wastes," (September 14, 1989) (OSWER Directive number
9330.2007).
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OSWER Directive Number 9833.0-la
preserve EPA's right to take any additional action including
modification of the order or issuance of additional orders.
The "administrative record" section of the order should
state that upon EPA's request, if there are any documents
generated by the respondent which relate to the selection of the
response action, the respondent should submit these documents to
epa for possible inclusion in the administrative record."
Generally, the "effective date and computation of time"
provision of a unilateral order for the RD/RA should provide
that the order is effective on a date that follows the oppor-
tunity for a conference and that all times for performance of
ordered activities shall be calculated from this effective date.
This type of order becomes effective without further action.
Where it appears likely that negotiation of a consent decree
can be concluded in a relatively short period of time, it may be
useful to issue a unilateral order with a delayed effective date.
The conference and response date of unilateral orders with
delayed effective dates typically should precede the effective
date by no more than 20 to, 30 days. See, section VIII of this
guidance for further explanation of unilateral orders with1
delayed effective dates.
The "opportunity to confer" section should explicitly give
PRPs an opportunity to confer with EPA. The scope of the
conference is limited to issues of implementation of the response
actions required by the order, and the extent to which the
respondent intends to comply with the order. The order should
provide a deadline for requesting the conference. prps may be
given ten calendar days from the date the order is mailed to
request a conference. The order should indicate that the
conference may be forfeited if not requested by this date. The
order may specify the date of the conference, if respondents
elect to take advantage of this opportunity. The conference is
discussed in greater detail in section VIII of this guidance.
The conference request date should precede the effective date of
the order and allow time for a conference before the date by
which recipients must indicate their willingness to comply with
the order (response date). The timing of the conference request
date shall not be permitted to extend the effective date or any
of the deadlines required by the order.
,sIt is possible that information generated during RD/RA
will meet the criteria of §300.825 of the NCP relating to the
addition of documents to the record after the decision document
is signed.
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OSWER Directive Number 9833.0-la
The "termination" section should provide for a clear
termination point of the order. This section should indicate
that respondent shall provide EPA with written certification
that it has completed all of the terms of the order, including
any additional tasks which EPA has determined necessary.
EPA shall provide respondent with a notice that the order is
terminated, based upon EPA's present information and belief that
respondent has fully complied with the requirements of the order.
EPA's notice shall be expressly conditioned on the accuracy of
the representations contained in respondent's certification.
This section is not equivalent to a release or a covenant not to
sue, nor should it be phrased in a manner which could be
interpreted as a release or covenant not to sue and the order
should specifically so state. Further, the order shall provide
that if EPA determines that additional response activities are
necessary to meet applicable Performance Standards, EPA may
notify respondent that additional response actions are necessary.
VII. Modification of Unilateral Orders
The Agency may decide to modify the terms of the unilateral
order for any reason, including information received during the
response action. All such information should be documented in.
writing. The unilateral order may only be modified in writing by
the Agency official who signed the order, i.e., the Regional
Administrator or his or her delegateAgency decisions to
modify the unilateral order should be communicated promptly to
the PRPs. Verbal notification of EPA's intent to modify the
terms of the order may be appropriate if followed by a mailed
copy of the modified unilateral order to the PRPs. The
verbal modification takes effect upon issuance of the modified
unilateral order to the PRPs.
VIII. Procedures Relating to Issuing Unilateral Orders
A) Special Notice Procedures
Section 122(e) of CERCLA gives EPA discretion to utilize the
special notice procedures if EPA determines that a period of
negotiation would facilitate an agreement with PRPs and would
expedite remdial actions.. Specials notice procedures give PRPs
an opportunity-to negotiate a settlement with the Agency, before
the Agency takes an enforcement action against them or conducts
"This does not preclude issuance of an order that
incorporates by reference a document that is subsequently
approved by another EPA official consistent with the order. An
example of this, is the Regional Project Manager's (RPM) approval
of the workplan.
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the response action itself. Special notice letters will be
issued prior to almost all orders for RD/RA.4 Special notice
procedures may affect timing of issuance of unilateral orders."
The special notice moratorium for remedial action lasts from 60
to 12 0 days, depending upon whether respondents submit a good
faith settlement offer bv the 60th day. _ if .the Agency receives
a good faith offer for the remedial action within the first 60
days of the moratorium, the Agency may not take any action for a
total of 120 days from respondents' receipt of the special notice1
letter. If special notice has been issued, Regional offices
should be prepared to issue unilateral orders at the conclusion
of the special notice moratorium, consistent with the following
principles.
The Agency may issue unilateral orders immediately upon
expiration of the. special notice moratorium. Therefore, if a
good faith settlement offer is not received by the 60th day, the
Agency normally should issue a unilateral order shortly
thereafter,. if such an order is appropriate,
Because of the statutory moratorium, different rules apply
if PRPs submit a good faith settlement offer within 60 days of
the special notice. In that case, unilateral orders may not be
,7The "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange," 53 Fed. Reg. 5298 (February 23, 1988)
(OSWER Directive number 9834.10) provides the following examples
of circumstances where it would generally not be appropriate to
issue special notice letters: 1) where past dealings with the
PRPs strongly indicate that they are unlikely to negotiate a
settlement: 2) where EPA believes the PRPs have not been
negotiating in good faith: 3) where no PRPs have been identified
at the conclusion of the PRP search; 4) where PRPs lack the
resources to conduct response activities; 5) where there are
ongoing negotiations: or 6) where notice letters were already
sent prior to the reauthorization of CERCLA and ongoing
negotiations would not benefit by issuance of a special notice.
For information on special notice letters and municipalities, see
the "Interim Policy on CERCLA Settlements Involving
Municipalities and Municipal Wastes," (OSWER Directive number
983.4.13) .
,aIf a special notice letter is not issued, the statutory
moratorium is not triggered, and the Agency can issue a §106
unilateral order immediately.
"See the "Interim Guidance on Notice Letters, Negotiations,
and Information Exchange," 53 Fed. Reg. 5298 at 5307 (1988)
(OSWER Directive number 9834.10).
22
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OSWER Directive Number 9833.0-la
issued for a total of 12 0 days from issuance of the special
notice letter."
Where there has been a good faith offer, but settlement is
not reached as of the 120th day after issuance of the special
notice letter, the Agency should be prepared to issue unilateral
orders. Only if settlement is likely in the very near future may
unilateral orders be delayed. Unilateral orders with delayed
effective dates may be issued for example, at the onset of a
negotiations extension. They should become effective on the
expiration date of the extended negotiations.
Unilateral orders with delayed effective dates should be
viewed as encouraging the successful conclusion of negotiations.
However, unilateral orders with" delayed effective dates are not
to be considered "draft" orders, and their terms are not
negotiable. These orders indicate the Agency's commitment to the
response action, and the desire to secure its timely
implementation. When used in this manner, unilateral orders with
delayed effective dates serve as a form of deadline management.
B) The Conference
It is the Agency's policy to provide PRPs with an
opportunity to discuss with the Regional office issuing the
order, implementation of the response actions required by the
order, and the extent to which the respondent intends to
comply." EPA will not participate in the conference for the
"Unilateral orders may not be issued during the moratorium.
This includes the issuance during the moratorium of unilateral
orders with delayed effective dates, even if theybecome
effective after the moratorium. An additional three days for
transmission of the mail may be allowed in addition to the 120
day period .
slSee procedures described in the Interim Guidance entitled
"Streamlining the CERCLA Settlement Decision Process," dated
February 12, 1987 (OSWER Directive number 9835.4).
"Apart from implementation; the two major concerns that the
PRPs may have relate to their liability and to EPA's selection of
the response action. During the course of information exchange
and PRP notice (see "Interim Guidance on Notice Letters,
Negotiations, and Information Exchange," 53 Fed. Reg. 5298 (1988)
(OSWER Directive number 9834.10), PRPs generally will have had an
opportunity to assert that they are not liable. EPA also
provides PRPs opportunities to participate in the selection of
the remedial action. PRPs are provided with an opportunity to
23
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OSWER Directive Number 9833.0-la
purpose of resuming settlement negotiations or negotiating the
terms of the order. The conference is not and evidentiary-
hearing. The opportunity to confer does not give PRPs the right
of pre-enforcement review. The conference is not intended to
be a forum for discussing liability issues or whether the order
should have been issued. Instead, the conference is designed to.
ensure that the order is based on complete and accurate
information, and to facilitate understanding of implementation.
The Agency will not create an official stenographic record
of the_conference, although a written summary may be prepared.
Following the conference, a written summary of significant issues
raised may be prepared and signed by the Agency employee who
conducted the conference. Significant issues raised concerning
implementation should promptly be brought to the attention of the
official who signed the order.
Respondents may appear in person or by an attorney or other
representative. PRPs will have the opportunity to ask questions
and present their views through legal counsel-or technical
advisor."
Within five days of the conference, the respondent may
submit a written summary of any arguments it-presented at the.
conference. At this time, in addition to this summary, the
respondent may submit any written argument or evidence of a
sufficient cause defense or any issues relating to factual
determinations set forth in the order.
The conference normally will be held at the EPA Regional
office. The RPM, the regional counsel attorney, and any other
comment and provide information concerning the remedial action
plan, an opportunity for a public meeting, and a response to each
of their significant comments, criticisms., and new data submitted
(See CERCLA 44 113 (k), 117.) Since EPA already will have
considered these concerns, the conference shall not be a forum
for reassertion of the PRP's views on these issues.
"The 'timing of judicial review of §106(a) orders is
governed by §113 (h) of cercla. Also, PRPs may obtain judicial
review after they have fully complied with the unilateral order
through a reimbursement petition filed under 4106(b) of CERCLA,
wherein PRPs may contest issues of liability or the selection of
remedy.
"Attendance at the conference should be limited to EPA and
the respondent, and the respondent's attorney- and/or technical
advisor.
24
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OSWER Directive Number 9833.0-la
appropriate Regional officials, should attend. The conference
schedule and agenda will be at the discretion of the spa employee
leading the conference consistent with this guidance, it is in
the Region's discretion who presides at the conference. The
supervisor of the RPM assigned to the site would be an
appropriate person. The assigned regional counsel attorney
should not conduct the conference although he or she may attend.
In addition, the attorney should not prepare a summary, due to
the possibility that this may put the attorney in the position of
being a witness in subsequent litigation.
IX, Specialized Forms and Use of Unilateral Orders
Specialized forms of unilateral orders may serve as a
settlement incentive for cooperative PRPs, and may also serve as
a disincentive for non-settlors. There are different forms of
unilateral orders which may serve as settlement inducers.
Generally, in drafting unilateral orders, the order should direct
the PRPs to conduct the entire remedial action. In limited
instances, however, the Agency may settle with some PRPs and
issue "carve-out" unilateral orders to recalcitrant parties to
compel them to conduct a discrete portion of the work at the
site. The Agency also, may issue "parallel" unilateral orders to
recalcitrants ordering them to coordinate and cooperate with the
settlors in conducting the response action. Carve-out and
parallel orders are explained in more detail below.
During settlement negotiations, the Agency may set aside a
portion of the cleanup for non-settlors, and mayverbally
indicate its present intent to issue unilateral orders tor that
portion of the work to all PRPs who do not sign the settlement
agreement. This is referred to as a "carve-out" settlement.
Work that may appropriately be carved out includes portions of
operable units that constitute independent tasks. To prevent any
possibility of delaying the remainder of the response action,
only independent, discrete tasks should be the subject of a
carve-out order. Otherwise, the entire process may hinge upon
the non-settlors timely compliance with the carve-out order.
Separate tasks that may be carved out may include removals of
contaminated soil in separate areas, or removal of specified
tanks or dams.
"A "carve-out settlement is a form of mixed work. For
information on the types of mixed funding arrangements such'as
mixed work, which may be used as incentives to settlement, see
"Superfund Program: Mixed Funding Settlements," (OSWER Directive
number 9834.9) 53 Fed. Reg. 8279 (March 14, 1988).
25
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OSWER Directive Number 9833.0-la
Due to the-uncertainties of when and how the work allocated
to non-settlors will be completed and of how many PRPs will
choose to settle, before a carve-out order to non-settlors is
proposed during settlement negotiations, the Regions should
consider the possibility of having to pursue the non-settlors or
fund the work" In appropriate cases, the settlement agreement
should provide for a delayed schedule for the settlors to perform
the carved-out work. By use of a delayed schedule, the Agency
may later seek the work from the settlors, if the non-settlors do
not comply with the carve-out order. Second, the Region should
consider the possibility of undersubscription or oversubscription
to the settlement. If there is oversubscription to the
settlement, there might be too few PRPs to which the carve-out
order could be issued.
Unilateral orders may also serve as a settlement incentive
when the Agency has reached a complete settlement at the site
with fewer than all PRPs. when a complete settlement agreement
is reached for conduct of the remedial action with fewer than all,
PRPs, the Agency may agree to issue "parallel" unilateral orders
to the liable non-settlors. Parallel unilateral orders direct
the non-settlors to coordinate and cooperate with the settlors
cleanup activities, as described in the consent decree." The1
requirements of a parallel unilateral order match the response
action requirements set forth in the consent decree settlement.
Where the response action is properly conducted by the settlors,
nonsettling recipients of parallel unilateral orders may be
liable for daily civil penalties if they failed to contribute to
the settlers efforts by, for example, payment of money or "in-
kind" contribution. Parallel unilateral orders benefit the
^.othe PRP cleanup
recipients of unilateral orders fail to financially, or
"Factors to consider when deciding whether to propose a
mixed work settlement include the strength of the liability case
against settlors and any non-settlors. Thisincludes litigative
risks in proceeding to trial against settlors, and the nature of
the case remaining against non-settlors after the settlement.
Mixed work settlements should be avoided where there is a
significant potential for delays in cleanup dud to inadequate
coordination or potential conflicts. See tne Mixed Funding
Settlements guidance cited above.
57Regions must consider the implications of the possibility
of non-compliance with such an order.
Alternatively, if
26
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OSWER Directive Number 9833.0-la
otherwise, assist the settlors, unilateral orders may assist
settlors to bring contribution actions against the non-settlors.
X. Continued Negotiation after Issuance of An Order
Upon receipt of a unilateral order, PRPs may indicate a
preference for conducting the response action undera consent
decree. This will generally only be considered when it is
possible that the agreement will be reduced to a decree promptly.
Except where quick agreement on a consent decree is likely,
negotiations normally should not be resumed since the PRPs
presumably were given a full opportunity to settle with the
Agency prior to receipt of the unilateral order. Alternatively,
during negotiations, PRPs may indicate that they will not sign a
consent decree, but may comply with a unilateral administrative
order. In this situation, the Region can decide whether it is
appropriate to issue a unilateral order.
The Agency may benefit from PRP conduct of a response action
under a unilateral order. Such benefits may include early
initiation of the response action through the absence of
prolonged negotiations and an expedited review process" While
certain other benefits may accrue to the Agency under a consent
decree rather than a unilateral order, in the interest of early
initiation of the response action, the Agency may choose to
reguire PRP conduct or a response action under a unilateral order
in lieu of a consent decree.
XI. Noncompliance with Unilateral Orders
In the event that PRPs do not submit their notice of intent
to comply letter by the date required, or do not adequately
comply with a unilateral order, the Agency must decide whether to
immediately seek judicial enforcement of the order, or to assume
the lead on the project and conduct the RD and/or the RA with
Fund money. Agency funding of the project may be followed by a
judicial referral, at a minimum, for cost recovery, penalties
and damages. Regional offices have discretion to cnoose either
funding or litigation, based upon: the availability of funds
"Administrative orders do not require judicial approval or
public comment. These procedures apply to consent decrees
entered under §122. See 4122(d)(2).
"Under a unilateral order, PRPs will be subject to 4106(b)
daily penalties instead of stipulated penalties, and they are
ineligible for contribution protection or covenants not to sue.
Past costs typically will be recovered by EPA through a demand,
letter and/or a §107 cost recovery lawsuit.
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OSWER Directive Number 9833.0-la
including State-cost shark funds for the RA; the urgency
presented by the site: the amount of available enforcement
resources: and the degree to which the case fits the criteria for
judicial enforcement. Regions also should consider the need for
EPA to maintain a credible section 106 enforcement presence in
the Superfund program. See the "Guidance on CERCLA Section 106
Judicial Actions," for a discussion of the appropriate criteria
for a judicial referral.
The primary focus in referring a case to DOJ is generally
the Agency's prospect for successful litigation and the need to
ensure remedial action at a site. Once the Government decides to
bring a section 106 action against the PRPs, it will pursue the
largest manageable number of potentially liable parties, based on
considerations such as the volume and nature of their
contribution, their relationship to the site (such as owners and
operators), their financial viability, and their recalcitrance in
the settlement process, in selecting defendants, the Agency
should consider whether, based on information obtained after
issuance of the unilateral order, any of the respondents have a
"sufficient cause" defense or a section 107(b) defense.
XII. Note on Purpose and Use of this Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of the U.S. Environmental Protection Agency.
They do not constitute rulemaking by the Agency, and may not be
relied uoon to create a right or benefit, substantive or
procedural, enforceable at law or in equity by any person. The
Agency may take any action which is at variance with the policies
or procedures contained in this memorandum, or which is not in
compliance with internal office procedures that maybe adopted
pursuant to these materials.
If you have any questions concerning any material contained
herein, please call Deborah J. Hartman (FTS)/(202) 382-2034, of
the Office of Waste Programs Enforcement. The contact at the
Office of Enforcement and Compliance Monitoring is Patricia L.
Winfrey at (FTS)/(2 02) 382-2860.
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OSWER Directive Number 9833.0-la
APPENDIX A
ADMINISTRATIVE AND JUDICIAL SETTLEMENT AND UNILATERAL
ENFORCEMENT AUTHORITIES
I. Administrative Settlement and Unilateral Enforcement
A. Sections 122 and 106 Conaenfc Adminiatrat-.ivfl Ord^ra
Prior to SARA, the Agency based its consent administrative
orders for both removals and the RI/FS on section 106 of CERCLA.
The RI/FS settlement agreement is now typically based upon CERCLA
sections 104 and 122. In these cases, a finding, of imminent and
substantial endangerment is no longer required "tor RI/FS
agreements. RA settlements under section 122 are embodied in
consent decrees." Unilateral orders for conventional removals
continue to be issued pursuant to section 106.
Penalties available for non-compliance with consent
administrative orders include stipulated penalties, section 109
monetary penalties, and section 106(b) daily civil penalties and
possibly treble damages where the Fund takes over.
B- figrfr.-irm 1 Ofi TTni 1 1 RHmini flhrahi vp Orders
Section 106 unilateral administrative orders may be used to
compel PRPs to conduct removals, RI/FS&, remedial designs or
remedial actions. If unilateral orders have the desired effect
PRPs will comply with the terms of the orders, or they may decide
to settle with the Agency, if they agree to settle on favorable
terms, the unilateral order may be followed by a consent
administrative order for removals and RI/FSs, or a consent decree
for RD/RA.
If PRPs do not comply with the unilateral order "without
sufficient cause, "daily civil penalties may be imposed by a
court under section 106(b)(1). Under section 107(c)(3),. punitive
damages also are available for noncompliance without sufficient
cause with a section 106 administrative order in an amount up to
three times that incurred by the Fund to perform the response
work required by the order.
"See Section 11(A), below.
"Note that if a §106 unilateral order is used to compel1
PRPs to conduct an RI/FS, a finding of a possible imminent and
substantial endangerment must be made before the preparation of
the baseline risk assessment. However, unilateral orders are
generally not recommended-for ordering conduct of an RI/FS.
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OSWER Directive Number 9833.0-la
courts have jurisdiction to review section 106(a)
administrative orders Only in the following instances: (1) an
action is brought under section 107 to recover response costs or
damages or for contribution; (2) a judicial action is brought to
obtain injunctive relief under section-106; (3) penalties are
sought for noncompliance with the administrative order: (4) PRPs
petition for reimbursement under section 106(b)(2) after
compliance with the order; (5) or a citizen suit is brought
pursuant to section 310. See CERCLA section 113(h).
II. Judicial Settlement and Unilateral Enforcement
A. Consent Decrees
The remedial action component of the RD/RA, if settlement is
reached under section 122, is required to be implemented in a
consent decree under section 122(d) (1)(A). A removal, RI/FS
under section ,122(d)(3), or remedial design settlement agreement1
may be embodied in either a consent administrative order or a
consent decree. Consent administrative orders are typically used
for removals and RI/FS agreements because they do not involve the
judicial process and often may be obtained more quickly than
consent decrees. Consent decrees, on the other hand, are
judicial documents that must be submitted to a court by the
Department of Justice (DOJ) and approved by the court.
Penalties available for noncompliance include stipulated
penalties, section 109 statutory penalties, section 106(b) daily
civil penalties, and treble damages where the PRP's noncompliance
with an administrative order leads to Fund-financed action,
B. Section 106 Judicial Actions
If PRPs refuse to comply with a section 106 unilateral order
directing them to conduct a removal or a remedial activity, the
case may be referred to DOJ for judicial enforcement.
Referrals to DOJ are necessary whether penalties and/or.
compliance with the terms of the order are sought.
In a section 106 judicial action, the Government may seek to
collect daily civi? ^ iy person who, without
comply with a section 106 unilateral order. In addition, in a
section 107 cost recovery action, the Government may seek treble
damages from PRPs for their failure to comply with an
administrative order. However, there is one procedural
"Some orders are enforceable by administrative penalty.
See section 109(a)(1)(D), (E), (b)(4)(5), and section 122(1).
sufficient cause,
or fails or refuses to
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OSWER Directive Number 9833.0-la
difference between securing PRP conduct of the response action
and obtaining monetary penalties from the PRPs. Administrative
orders are a necessary precondition for obtaining the desired
relief when monetary penalties are sought. PRPs must have failed
to comply with administrative orders before monetary penalties
may be obtained. Daily civil penalties or treble damages may
then be secured through a judicial action.
On the other hand, unilateral orders are not the only
alternative if PRP conduct of the response action is desired. If
settlement negotiations break down over the removal or remedial
action, and the Agency wishes to compel PRP cleanup, the case may
also be referred directly to DOJ. As previously mentioned, PRP
cleanup can be compelled through a section 106 judicial action.
Unilateral orders are therefore an option if the Agency wishes to
compel PRP conduct of the response action.
A-2
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION 6
DALLAS, TEXAS
IN THE MATTER OF:
CHIEF SUPPLY
CORPORATION, INC.
ROUTE 2 BOX 71
HASKELL, OK 74436
EPA ID NO. OKD089761290
RESPONDENT
ADMINISTRATIVE ORDER
U.S. EPA DOCKET NO
VI - 7003-97-04
Proceeding Under § 7003
of the Resource Conservation
and Recovery Act, as Amended,
42 U.S.C. § 6973
I. JURISDICTION
This Administrative Order ("Order") is issued to protect
public health and the environment pursuant to Section 7003 of the
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act ("RCRA"), and further amended by the Hazardous
and Solid Waste Amendments of 1984 ("HSWA"), 42 U.S.C. § 6973.
Section 7003(a) of RCRA authorizes the Administrator of the U.S.
Environmental Protection Agency ("EPA") to issue this Order
whenever the Administrator receives evidence that the past or
present handling, storage, treatment, transportation, or disposal
of any solid waste or hazardous waste may.present an imminent and
substantial endangerment to health or the environment. The
authority to issue this Order has been delegated by the
Administrator of EPA to the Regional Administrator, EPA Region 6,
by EPA Delegation Nos. 8-22-A and 8-22-C, dated May 11, 1994, and
No. 8-23, dated March 6, 1986, and further delegated to the
Director of the Compliance Assurance and Enforcement Division,
Region 6 ("Director") by Delegations No. R6-8-22-A, dated July
27, 1995, and No. R6-8-23, dated July 27, 1995.
This Order is issued to Chief Supply Corporation, Inc.,
herein known as "Respondent", operator of the Chief Supply
Corporation facility located on Highway 64, approximately six
miles north of Haskell, Oklahoma. The property on which the
Chief Supply Corporation facility is located, and all contiguous
Page 1
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property under the ownership or control of Respondent is
hereinafter referred to as the "Facility".
II. PARTIES BOUND
1. This Order is issued to Chief Supply Corporation, Inc., the
Respondent, Route 2, Box 71, Haskell, Oklahoma, 74436.
2. This Order shall apply to, and be binding upon, Respondent,
his officers, directors, employees, agents, trustees,
receivers, successors, assigns, and all other persons,
including, but not limited to, firms, corporations,
subsidiaries, contractors and consultants, acting under or
on behalf of Respondent in connection with the
implementation of this Order.
3. No change in the ownership of the Facility, or the corporate
or partnership status of Respondent, will in any way alter,
diminish, or otherwise affect the obligations of Respondent
under this Order. Respondent shall be responsible for and
liable for completing all of the activities required
pursuant to this Order, regardless of whether said
activities are to be performed by employees, agents,
contractors or consultants of Respondent. Respondent shall
be liable for its failure, or the failure of its employees,
agents, contractors or consultants, to completely perform
any or all of said activities, or to satisfy each of the
terms and conditions herein.
4. Respondent shall provide a copy of this Order to all
contractors, subcontractors, laboratories, and consultants
retained to conduct or monitor any portion of the work to be
performed pursuant to this Order. Said copy of the Order
shall be provided within seven (7) days of the Effective
Date of this Order, or the date that such services are
retained. Respondent shall condition all contracts made
with contractors, subcontractors, laboratories and/or
consultants, in connection with this Order, on compliance
with the terms of this Order.
5. In the event of any change in ownership, control, and/or
operation of the Facility from Respondent to another party
during the pendency of this Order, Respondent shall notify
EPA in writing, no later than thirty (30) calendar days
prior to such change, of the nature and effective date of
such change. Any documents transferring ownership, control,
Page 2
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and/or operations of the Facility from Respondent to another
party during the pendency of this Order shall include
written notice of this Order. Further, Respondent shall
provide a copy of this Order to any successor(s) prior to
such change during the pendency of the Order.
III. NOTICE TO THE STATE
Notice of issuance of this Order was given in writing to the
State of Oklahoma Department of Environmental Quality ("ODEQ")
pursuant to Section 7003(a) of RCRA, 42 U.S.C. § 6973(a).
IV. FINDINGS OF FACT
1. Respondent is a subsidiary of Clean America Corporation, a
Delaware Corporation. Respondent is doing business in the
State of Oklahoma, and is a "person" as defined in
§ 1004(15) of RCRA, 42 U.S.C. § 6903(15).
2. Respondent operates a hazardous and industrial waste
collection, storage, hazardous waste fuel blending, and
recycling facility located on Highway 64 approximately six
miles north of Haskell, Oklahoma. The Facility's fuel
blending operation includes mixing hazardous wastes in two
fuel dispersion units to create fuel for off-site industrial
furnaces. Other equipment operated at the Facility include
a waste shredder to reduce the size of solids prior to
compositing for further processing or shipment off-site, a
thermal desorption unit to reduce the volume and improve the
fuel value of solids and sludges, and storage tanks. The
Facility's geographic coordinates are latitude 35°52'30"
north and longitude 95°45'00" west.
3. Respondent engages in the generation, treatment, storage
and/or disposal of solid and/or hazardous waste at the
Facility as these terms are defined in Section 1004 (5) and
(27) of RCRA, 42 U.S.C. § 6903(5) and (27).
4. The Facility's permit to operate a hazardous waste
management facility was modified by ODEQ on
April 3, 1994. According to the permit modification, the
Facility operates a hazardous waste storage, recycling, and
treatment facility. The following hazardous wastes are
permitted at the Facility:
Page 3
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D001; DO 0 2; D004-D01S; D018-D043; F001-F006; FOIO;
F 019; F 0 2 4 ; F025; F034 ; F035; F037-FO39; KOOl-KOll;
KOI3-K026; K028-K030; K047-K052; K060-K062; K064-K066;
K071; K07 3; K083-K087; KO93-K106; K111-K118; K12 3;
K124; K126; K132; K141-K145; K147; K148; K056-K059;
P001-P018; P020-P024; P026-P031; P033; P034; P036-P051;
P 0 5 4; P056 -P060; P062-P078 ; P081; P082; P084; P085;
P 0 8 8; P 0 8 9 ; P092-P099; P101-P106; P108-P116; P118-P123;
U001-U012; U014-U039; U041-U053; U055-U064; U066-U095;
U097-U099; U101-U103; U105-U134; U136-U138; U140-U174;
U176-U194; U196; U197; U200-U211; U213-U223; U225-U228;
U234-U240; U243; U244; U246-U249; U328; U353; and U359.
5. On March 26, 1997, an explosion and fire occurred at the
Facility. The fire resulted in the death of one of
Respondent's employees, and injuries to two other employees.
The handling, storage, treatment, or transportation of solid
waste or hazardous waste at the Facility may have created an
imminent and substantial endangerment to health or the
environment.
6. According to the EPA memorandum titled "POLREP No. 1
Emergency Response", dated March 27, 1997, from Kenneth
Clark, EPA On-Scene-Coordinator, ("POLREP Report"), the fire
burned a large portion of one building that housed a
majority of the hazardous waste at the Facility and impacted
a portion of the equipment used by the Facility to store and
process hazardous waste. Open flames and associated smoke
plume rose from 1000 feet to 3000 feet above the Facility
and drifted to the north-northeast. Many of the 1450 drums
of hazardous waste in storage at the time of the fire were
consumed by the fire.
7. The cause of the explosion and fire of March 26, 1997, has
not been determined.
8. An ODEQ memorandum titled "Combustion Products of Air Toxics
from Chief Chemical Supply", dated April 22, 1997, from
Evelina C. Morales to Don Maisch, lisced 39 chemicals that
were present at the Facility prior to the fire on
March 26, 1997. The memorandum also listed the combustion
products of these chemicals. The following chemicals were
included:
CHEMICAL
COMBUSTION PRODUCTS |
Acetone
acid, irritating fumes |
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CHEMICAL
COMBUSTION PRODUCTS
Acetonitrile
Hydrogen cyanide, Nitrous oxides
Benzene
toxic fumes
Benzo-a-pyrene
Dioxins
n-Butanol
Carbon monoxides
Carbon tetrachloride
Phosgene, Hydrogen chloride
Chlordane
Phosgene, Hydrogen chloride
Chlorobenzene
Phosgene, Hydrogen chloride
Cresols (o,m,p)
toxic fumes
Cyclohexane
acid, irritating fumes
Dibutyl phthalate
Carbon dioxide, Carbon monoxide
Dichlorodifluoromethane
Phosgene, Hydrogen chloride,
Hydrofluoric acid, Carbonyl fluoride
Diethyl ether
acrid smoke, irritating fumes
Diethyl hexyl phthalate
irritating vapor
2,4-Dimethyl phenol
toxic, irritating fumes
2,4-Dintrophenol
Nitrous oxides
2 -Ethoxyethanol
toxic vapors
Ethyl acetate
acrid, irritating smoke
Ethyl benzene
acrid, irritating smoke
Formaldehyde
Carbon monoxide, Carbon dioxide
MEK
acrid smoke & fumes
Mercury
toxic fumes of Mercury
Methanol
Formaldehyde, Formic acid
Methylene chloride
Phosgene, Hydrochloric acid
MIBK
toxic fumes of MIBK
Napthalene
acrid smoke, irritating fumes
Nitrobenzene
Nitrous oxides, Carbon oxides,
aromatic vapors
Page 5
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CHEMICAL
COMBUSTION PRODUCTS
Phenol
toxic, irritating vapors of Phenol
Pyridine
Hydrogen cyanide, Nitrous oxides
Styrene
acrid smoke, irritating fumes
Tetrachloroethylene
Phosgene, Chlorine, Hydrochloric acid
Tetrahydrofuran
Dioxins, irritant, toxic gasses
Toluene
acrid smoke, irritating fumes
1,1,1-Trichloroethane
Phosgene, Hydrochloric acid, Chlorines
Trichloroethylene
toxic Chlorides
Trichlorofluoromethane
Phosgene, Hydrochloric acid,
Hydrofluoric acid, Carbonyl fluoride
1,1,2-Trichloro-1,2,2-
trifluoromethane
Phosgene, Hydrochloric acid,
Hydrofluoric acid, Carbonyl fluoride
1,1, 2-Trichloroethane
Phosgene, Hydrochloric acid
Xylene
acrid smoke, irritating fumes
9. According to the POLREP Report, all persons in an area
extending 1 1/2 miles to the north and one mile to the east
of the Facility were evacuated as a result of the fire.
10. According to the "Affidavit of John Smith", dated
April 24, 1997 ("Smith Affidavit"), seepage of unknown
character and origin has been observed coming from the
concrete wall in the containment and recycling building.
John Smith is an inspector for the Waste Management Division
of ODEQ, and for the last three years has been assigned as
the on-site inspector for the Facility.
11. According to the Smith Affidavit referred to in Paragraph 10
above, the fire has so altered the Facility that the
Facility no longer corresponds to the Hazardous Waste
Permit.
12. Combining incompatible wastes may result in a chemical
reaction which may cause a fire, explosion, or uncontrolled
release of smoke or fumes. According John Smith, referred
to in Paragraph 10, who observed the cleanup and remediation
efforts after the fire and explosion, Respondent's personnel
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responsible for implementing the compatibility screening
procedures appeared uninformed or untrained to perform those
duties.
13. According to the Smith Affidavit referred to in Paragraph 10
above, on March 29, 1997, three days after the fire, a drum
of acid was overturned while moving debris to extinguish
remaining hot spots. Chemicals from the drum mixed with
waste water from the firefighting effort and created a
reaction resulting in the release of a large acid plume.
The plume migrated offsite to the northwest and crossed
Highway 64. The plume dissipated in approximately ten
minutes.
14. According to the Smith Affidavit referred to in Paragraph 10
above, on April 8, 1997, a drum of solidified material was
placed in a roll-off container during the cleanup following
the fire. The contents of the drum began smoking and the
odor of ammonia was immediately apparent. Facility
personnel then poured water on the waste, which caused the
release of a large white plume and the reaction became more
intense. The waste was then covered with soil.
15. According a Consent Agreement and Final Order ("CAFO")
entered into by ODEQ and Respondent, filed August 23, 1993,
ODEQ alleged the following violations: storing amounts of
hazardous waste in excess of permitted amounts, treating
hazardous waste when the type and manner of treatment of
hazardous waste was not specified by Chief's existing
permit. The hazardous wastes being treated included
corrosive hazardous waste (D002), ignitible hazardous waste
(D001), and other characteristic hazardous wastes (D006,
D007, D035, DO39, and U185) .
16. According a Consent Agreement and Final Order ("CAFO")
entered into by ODEQ and Respondent, filed January 30, 1995,
ODEQ alleged the following violations: storage of
incompatible wastes or products in close proximity without
sufficient separation or barrier between the incompatible
materials, storage of hazardous waste in containers with
which the wastes were incompatible, storing excessive
amounts of hazardous waste, storage of hazardous waste in
leaking drums and in containers unsuitable for use, storage
of hazardous waste in tanks lacking an integrity assessment
and secondary containment, in addition to other violations.
17. Under the terms of the January 30, 1995 CAFO, the Facility
was required to, inter alia, reduce excessive storage of
hazardous waste at the Facility, submit complete
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applications for the required air quality permit, and make
the required payments for fees and penalties.
18. ODEQ filed a Notice of Partial Summary Suspension to
partially suspend the Facility's Hazardous Waste Permit
(Number 3573015) on June 19, 1995. This action was taken
because hazardous waste in storage at the Facility,
approximately 621,000 gallons, significantly exceeded the
permitted capacity of 131,380 gallons. The permit was
suspended, thus prohibiting the receipt of off-site
hazardous waste until Respondent reduced the level of stored
hazardous waste to those specified in the CAFO.
19. The Facility brought an action (CS-95-414) in the District
Court of Wagoner County, State of Oklahoma, to appeal the
summary suspension of its Hazardous Waste Permit by ODEQ,
and other matters. An Order issued by the Oklahoma District
Court on September 8, 1995, reinstated the Facility's permit
on the condition that Respondent reduce the amount of stored
hazardous waste to below the permitted level in accordance
to a schedule set in the order. Other elements of the
original cause of action are still pending.
20. According to a Compliance Evaluation Inspection ("CEI")
Notice of Violation, dated January 5, 1996, from ODEQ to
Respondent, a RCRA CEI conducted in September 1995, noted
violations including: Facility failed to maintain
compatibility of hazardous wastes in storage; Facility
failed to transfer wastes from leaking containers to
containers in good condition,- Facility conducted transfer
activities in unpermitted areas; and Facility failed to
maintain the storage of containers holding ignitable wastes
at least 50 feet from the property line.
21. The chemicals present at the Facility, and their combustion
products, are toxic, corrosive, and include known and
suspected carcinogens and mutagens, which can affect the
central nervous system and damage internal organs at low
levels. These constituents, under certain conditions of
dose, duration, or extent of exposure, if mismanaged,
constitute a threat to human health by inhalation and/or
absorption. The following information was compiled from
"Chemical, Physical, and Biological Properties of Compounds
Present at Hazardous Waste Sites", prepared by Clement
Associates, Inc., dated September 27, 1985, EPA's Integrated
Risk Information System (IRIS), Clinical Toxicology of
Commercial Products, Fifth Edition, and 40 C.F.R. Part 141:
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Phosgene: Phosgene is a combustion product of several
of the chemicals that were permitted at the Facility.
Phosgene is a colorless, highly toxic gas, and was once
used as a war gas. It has an odor similar to moldy hay
at a low concentrations in air. It is an extreme
pulmonary irritant, but initial symptoms are mild and
transient, even when fatal concentrations are inhaled.
Phosgene may cause pulmonary edema, may be quickly
fatal, or may cause pneumonia. Inhalation of high
concentrations causes choking, a constricted feeling in
the chest, coughing, painful breathing, and bloody
sputum. Phosgene vapors are also strongly irritation
to the eyes, and may cause skin burns. According to
the National Institute for Occupational Safety and
Health (NIOSH) Pocket Guide to Chemical Hazards, dated
September 1985, Phosgene is immediately dangerous to
life and health at 2 ppm.
Benzene: Benzene exposure is associated with
chromosomal damage in both humans and animals, although
it is not mutagenic in microorganisms. It is fetotoxic
and lethal to embryos in experimental animals.
Exposure to benzene has resulted in leukemia in humans.
It also adversely affects the hematopoietic system and
may harm the immune system. Very high concentrations
in air (about 20,COO ppm) can cause death in minutes,
with central nervous system depression and convulsions,
and cardiovascular collapse. Vertigo, headache,
nausea, drowsiness, and eventual unconsciousness result
from milder exposures. Dermal adsorption of liquid
benzene can result in erythema, blistering, and scaly
dermatitis. It may cause irritation and damage to the
eyes. The maximum contaminant level (MCL) for benzene
in drinking water is 0.005 mg/1. IRIS lists benzene as
a Group A (known human) carcinogen.
Xylene: Xylene has been shown to be feto-toxic in rats
and mice. In humans, exposure to high concentrations
of Xylene adversely affects the central nervous system
and irritates the mucous membranes. Short term
exposure to high levels causes skin, eye, nose, and
throat irritation. The MCL for total Xylenes in
drinking water is 10.0 mg/1. IRIS lists Xylene as a
Group D (not classifiable as to human carcinogenicity)
carcinogen.
Naphthalene: Naphthalene has retarded cranial
ossification and heart development in the offspring of
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exposed pregnant rats. Inhalation exposure has caused
nausea, headache, and optic and kidney damage in humans
and experimental animals. Oral administration has
produced cataracts in rabbits and induced changes in
motor activity in rats and mice. Exposure to high
doses causes severe hemolytic effects. A drinking
water MCL has not been established for naphthalene.
IRIS lists naphthalene as a Group D (not classifiable
as to human carcinogenicity) carcinogen.
(e) Dioxin: In humans, 2,3,7,8-Tetrachloro-dibenzo-p-
dioxin (dioxin) can cause chloracne, a severe skin
lesion that usually occurs on the head and upper body.
Dioxin has been reported in animals to cause changes in
the immune system that make them more susceptible to
infection. In some animals, dioxin has been reported
to cause adverse reproductive and developmental effects
such as miscarriages and birth defects in the
offspring. Based on the positive evidence in animal
studies, dioxin probably can cause cancer in humans.
The ability of dioxin to cause cancer in humans is
being reassessed by EPA. This reassessment indicates
that dioxin is potentially a less potent carcinogen.
However, EPA at this time has not changed its estimate
of dioxin cancer potency. The dioxin reassessment also
indicates that immunological, reproductive and
developmental effects may occur at lower levels than
previously thought.
(f) Toluene: Acute exposure to Toluene at concentrations
of 375-1,500 mg/kg produces central nervous system
depression and narcosis in humans. Toluene has been
shown to be embryo-toxic in experimental animals, and
the incidence of cleft palate increased in the
offspring of dosed mice. Chronic inhalation exposure
to relatively high levels of Toluene caused cerebellar
degeneration and an irreversible encephalopathy in
mammals. The MCL for Toluene in drinking water is 1.0
mg/1. IRIS lists toluene as a Group D (not
classifiable as to human carcinogenicity) carcinogen.
(g) Mercury: Both organic and inorganic forms of mercury
are reported to be teratogenic and embryotoxic in
experimental animals. Mercury is acutely toxic via the
oral route. In humans, prenatal exposure to
methylmercury has been associated with brain damage.
Mercury can also affect the central and peripheral
nervous system and the kidney. The MCL in drinking
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water is 0.002 mg/1. IRIS lists mercury as a Group D
(not classifiable as to human carcinogenicity)
carcinogen.
(h) Methylene chloride: Methylene chloride
(dichloromethane) increased the incidence of lung and
liver tumors, and sarcomas in rats and mice. It was
found to be mutagenic in bacterial test systems. In
humans, Methylene chloride irritates the eyes, mucous
membranes, and skin. Exposure to high levels adversely
affects the central and peripheral nervous systems and
the heart, as well as irritation to the eyes, nose, and
throat. In experimental animals, Methylene chloride is
reported to cause kidney and liver damage, convulsions,
and paresis. The MCL for Methylene chloride in
drinking water is 0.005 mg/1. IRIS lists Methylene
chloride as a Group B2 (probable human) carcinogen.
(i) Phenol: Phenol is a human poison by ingestion,
moderately toxic by skin contact, and is a severe eye
and skin irritant. Even in small amounts, it can cause
nausea, vomiting, circulatory collapse, paralysis,
coma, and death from respiratory failure. Chronic
exposure can cause death from liver and kidney damage.
Subchronic and chronic exposures of pregnant rats
caused significant depression in fetal body weights. A
drinking water MCL has not been established for Phenol.
IRIS lists Phenol as a Group D (not classifiable as to
human carcinogenicity) carcinogen.
(j) Trichloroethene: Trichloroethylene (TCE) has been
shown to cause cancer in laboratory animals such as
rats and mice when the animals are exposed at high
levels over their lifetimes. TCE has induced
hepatocellular carcinomas in mice and was mutagenic
when tested using several microbial assay systems.
Some harmful effects may persist following long-term
exposure to TCE. This information is based largely on
animal studies. These studies show that ingesting or
breathing levels of TCE that are higher than typical
background levels can produce nervous system changes
and liver and kidney damage. Chemicals that cause
cancer in laboratory animals also may increase the risk
of cancer in humans who are exposed at lower levels
over long periods of time. The MCL for TCE in drinking
water is 0.005 mg/1. IRIS lists the carcinogen
assessment summary for TCE as withdrawn and under
review. Under the Safe Drinking Water Act (SDWA), EPA
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has classified TCE as a Group B2 (probable human)
carcinogen.
(k) Tetrachloroethene: Tetrachloroethylene (PCE) has been
shown to cause cancer in laboratory animals such as
rats and mice when the animals are exposed at high
levels over their lifetimes. Additionally, renal and
hepatotoxicities have been reported following
inhalation exposure of rats to fairly high
concentrations. Chemicals that cause cancer in
laboratory animals also may increase the risk of cancer
in humans who are exposed over long periods of time.
The MCL in drinking water for PCE is 0.005 mg/1. IRIS
lists the carcinogen classification of PCE as under
review. A final decision on whether PCE should be
classified as a Class B2 (probable human) carcinogen or
Class C (possible human) carcinogen has not yet been
made.
(1) Carbon Tetrachloride: Carbon Tetrachloride has been
shown to cause cancer in laboratory animals such as
rats and mice when the animals are exposed at high
levels over their lifetimes. Chemicals that cause
cancer in laboratory animals also may increase the risk
of cancer in humans who are exposed at lower levels
over long periods of time. The MCL for Carbon
Tetrachloride in drinking water is 0.005 mg/1.
(m) 1,1,1-Trichloroethane: 1,1,1-Trichloroethane (TCA) has
been shown to damage the liver, nervous system, and
circulatory system of laboratory animals such as rats
and mice when the animals are exposed at high levels
over their lifetimes. Some industrial workers who were
exposed to relatively large amounts of this chemical
during their working careers also suffered damage to
the liver, nervous system, and circulatory system.
Chemicals which cause adverse effects among exposed
industrial workers and in laboratory animals also may
cause adverse health effects in humans who are exposed
at lower levels over long periods of time. The MCL for
TCA in drinking water is 0.200 mg/1. IRIS lists TCA as
a Group D (not classifiable as to human
carcinogenicity) carcinogen.
(n) Creosote: Creosote is moderately toxic, with a
probable lethal dose (human) of 500,000 - 5,000,000
/ug/kg. Fatalities have occurred 14-36 hours after
ingestion of 7 grams by adults or 1-2 grams by
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children. Exposure to creosote may result in
cardiovascular disorders such as tachycardia,
hypotension, supraventricular/ ventricular arrhythmia;
respiratory disorders such as tachypnea, pulmonary
edema, and respiratory arrest; nausea, vomiting,
diarrhea, seizures followed by coma, intense sweating,
skin ulceration, necrosis, severe eye irritation,
keratoconjunctivitis, loss of corneal epithelium,
clouding of cornea, and photophobia. The following
components of creosote are polycyclic aromatic
hydrocarbons (PAH's) whose carcinogenicity has been
well studied. Several case reports of human carcinomas
associated with exposure to creosote have been
published. The carcinogenic effect of creosote is
supported by reports of studies in which other coal tar
products produced tumors in mice and rats by topical
application and by inhalation, and by identification of
carcinogenic polycyclic aromatic hydrocarbons (PAH's)
in coal tar products. Creosote constituents
benz(a)anthracene, indeno(1,2,3-cd)pyrene,
benz(k)fluoranthene, dibenz(a,h)anthracene,
benzo(a)pyrene and chrysene are also individually
listed in IRIS with a Group B2 (probable human)
carcinogen classification.
22. According to the Dun and Bradstreet Report for the Facility,
dated May 23, 1997, there are 85 persons employed at the
Facility. These employees may be exposed to hazardous
wastes, hazardous constituents, and/or solid wastes as
identified in Paragraph 21 above.
23. According to ODEQ's APPLICATION FOR INJUNCTIVE RELIEF AND
APPLICATION FOR TEMPORARY RESTRAINING ORDER, filed
May 1, 1997, representatives of Respondent have made
statements to ODEQ and the press that the Facility plans to
begin accepting and processing waste from outside the
Facility.
V. CONCLUSIONS OP LAW AND DETERMINATIONS
Based on the Findings of Fact set out above, and the
Administrative Record, the Administrator has determined that:
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1. Respondent is a "person" as that term is defined in
§ 1004(15) of RCRA, 42 U.S.C. § 6903(15).
2. Certain materials (or substances) found at the Facility
are hazardous wastes, hazardous constituents, and/or
solid waste as defined or set forth by § 1004(5) of
RCRA, 42 U.S.C. § 6903(5), § 3001 of RCRA, 42 U.S.C. §
6921, and 40 CFR Part 261.
3. These hazardous wastes, hazardous constituents and/or
solid wastes were handled at the Facility.
4. Respondent has not maintained and operated the Facility
to minimize the possibility of a fire, explosion, or
any unplanned sudden or non-sudden release of hazardous
waste or hazardous waste constituents to air, soil, or
surface water which could threaten human health or the
environment as required under 40 CFR Part 264.31.
5. There is or has been a release of hazardous wastes,
hazardous constituents, and/or solid wastes as defined
or set forth by § 1004(5) of RCRA, 42 U.S.C. § 6903(5),
§ 3001 of RCRA, 42 U.S.C. § 6921, and 40 CFR Part 261,
into the environment from the Facility.
6. Respondent's failure to manage hazardous waste and/or
solid waste and operate the Facility to minimize the
possibility of a fire, and the subsequent releases of
hazardous wastes and/or solid wastes from the Facility,
presents or may present an imminent and substantial
endangerment to health or the environment.
1. The past and/or present handling and release of
hazardous wastes, hazardous constituents, and/or solid
wastes at The Facility may present an imminent and
substantial endangerment to health or the environment
within the meaning of § 7003 of RCRA, 42 U.S.C. § 6973.
8. Respondent has contributed to the handling and storage
of solid waste and/or hazardous waste which may present
an imminent and substantial endangerment to human
health or the environment.
9. Resumption of Facility operations to accept and process
waste, if the corrective actions required by this Order
are not implemented, may present an imminent and
substantial endangerment to human health and/or the
environment.
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10. The actions required by this Order are consistent with
RCRA and are necessary to protect human health and/or
the environment from the release of hazardous waste,
hazardous constituents, and/or solid wastes from the
Facility into the environment.
VI. ORDER
Based upon the foregoing, and in order to abate or prevent
any imminent or substantial endangerment to human health and the
environment, Respondent is hereby ORDERED to undertake, continue
to take, and complete each of the following actions to the
satisfaction of the Environmental Protection Agency ("EPA") and
the Oklahoma Department of Environmental quality ("ODEQ"),
pursuant to § 7003 of RCRA, 42 U.S.C. § 6973. Respondent shall
also perform such activities necessary to secure the solid waste
and hazardous waste presently at the Facility to prevent fires,
explosions, or releases of solid waste and hazardous waste.
All work undertaken pursuant to this Order shall be developed and
performed in accordance with RCRA, its implementing regulations,
and the terms, procedures and schedules set forth in this Order.
Oral advice or approvals given by EPA representatives will not
relieve Respondent of its obligation to obtain formal written
approvals required by this Order. Respondent may, with EPA
approval, incorporate and utilize ongoing work, and/or any other
work already completed by Respondent, which had been approved by
EPA and ODEQ and complied with all applicable Federal and State
law. "Days" as set forth herein are calendar days unless
otherwise specified.
1. Immediately after the Effective Date of this Order,
Respondent shall cease and desist operation, or shall not
resume operation if currently inactive, of the fuel blending
process, including the fuel dispersal units at the Facility,
until authorized by EPA and ODEQ.
2. within fourteen (14) days after the Effective Date of this
Order, Respondent shall submit a report to EPA and ODEQ for
review and approval, which details the Facility operations
prior to the fire on March 26, 1997, including, but not
limited to, wastes received, compatibility testing done,
Facility process equipment condition and status, actions
taken immediately prior to the fire, etc.
3. The report specified in paragraph 2, above, shall also
determine the cause or causes of the fire. Should
Respondent not be able to determine the exact cause of the
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fire, then the report shall identify the most likely
cause (s). The report shall also recommend steps to be taken
to prevent or minimize the potential for any future fires or
explosions.
4. Prior to resuming fuel blending activities, Respondent shall
undertake, or continue to take the approved recommendations
to prevent or minimize the potential for future fires or
explosions to the satisfaction of EPA and ODEQ.
5. At least fourteen (14) days prior to returning any fuel
blending process equipment to service, Respondent shall
demonstrate the integrity and suitability of all such
equipment to the satisfaction of EPA and ODEQ. Respondent
shall submit an Integrity Report to EPA and ODEQ for review
and approval that includes an engineer's certification of
integrity of all such equipment. The Integrity Report shall
also include an evaluation of the integrity of the concrete
in the Container Storage and Recycling Building.
6. At least fourteen (14) days prior to returning any fuel
blending process equipment to service, Respondent shall
identify the proposed use of such equipment for EPA and ODEQ
approval.
7. During the post-fire cleanup and remediation of the
Facility, Respondent shall implement measures to prevent the
combining of non-debris hazardous waste with hazardous waste
debris, as the terms are defined at 40 CFR 268.2, and to
correct any such combining that has already occurred. All
debris and non-debris hazardous waste shall be properly
disposed of in accordance with all applicable State and
Federal regulations.
8. No later than fourteen (14) days after the Effective Date of
this Order, Respondent shall update the Facility Contingency
Plan as appropriate to include any necessary changes in view
of the experience following the March 26, 1997, fire, for
EPA and ODEQ review and approval.
9. Within thirty (30) days after the Effective Date of this
Order, Respondent shall provide classroom instruction by
persons trained in hazardous waste management procedures to
all Facility personnel, which satisfies the requirements of
40 CFR Part 264.16(a) and (b). The training shall also
provide classroom instruction to prevent the possibility of
fire, explosion, or any release of solid waste and/or
hazardous waste. Such instruction shall include, inter alia,
the following:
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(a) Proper procedures and necessary equipment for
accurately assessing waste received from off-site to
insure that only permitted wastes are accepted;
(b) Proper procedures and necessary equipment for
effectively determining the compatibility of wastes to
insure that incompatible or reactive wastes are not
improperly mixed.
Within seven (7) days after the Effective Date of this
Order, Respondent shall submit to EPA and ODEQ in writing
the name and qualifications of the person(s) proposed to
provide such instruction. If EPA disapproves of the
selection of such person(s), Respondent shall select and
submit to EPA the name and qualifications of a person that
is acceptable to EPA.
10. At least three (3) business days prior to receiving
hazardous waste from off-site for fuel blending, or resuming
any other process activities related to fuel blending at the
Facility, Respondent shall submit to EPA and ODEQ notice in
writing of its intention to resume such activities. In
addition, before Respondent may resume such activities, a
duly authorized representative of Respondent, who is capable
of legally binding Respondent, shall certify to EPA and ODEQ
that Respondent has complied with this Order. Such
certification shall contain the following language:
"I certify under penalty of law that Chief Supply
Corporation, Inc., has complied all relevant State and
Federal regulations and the terms of this Order issued
by the United States Environmental Protection Agency
pursuant to Section 7003 of the Resource Conservation
and Recovery Act, as amended, EPA Docket No. VI-7003-
04. I am aware that there are significant penalties
for submitting false information, including the
possibility of fine and imprisonment for knowing
violations."
11. Within twenty-four (24) hours after the receipt of this
Order, Respondent shall notify EPA and ODEQ by telephone
whether Respondent intends to comply with the terms of this
Order, and shall provide written confirmation of its
intention to comply to EPA and ODEQ within forty-eight (48)
hours after receipt of this Order. IF SUCH NOTICE IS NOT
RECEIVED, EPA AND ODEQ WILL PRESUME THAT RESPONDENT DOES NOT
INTENT TO COMPLY.
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VII. PROJECT MANAGER
1. No later than ten (10) days after the Effective Date of this
Order, EPA and Respondent shall each designate a Project
Manager. Each Project Manager shall be responsible for
overseeing the implementation of this Order. The EPA
Project Manager will be EPA's designated representative at
The Facility. All communications between Respondent and
EPA, and all documents, reports, and other correspondence
concerning the activities performed pursuant to the terms
and conditions of this Order shall be directed through the
Project Manager. All communications from EPA to Respondent,
and all documents, reports and other correspondence
concerning the activities performed pursuant to the terms
and conditions of this Order from EPA to Respondent shall
also be directed to the address given in Section IX.
2. Whenever possible, EPA and Respondent should provide at
least five (5) days written notice prior to changing its
Project Manager. However, written notice shall be provided
no later than five (5) days following such change.
3. The absence of the EPA Project Manager shall not be cause
for the stoppage or delay of work at The Facility.
VIII. ADMINISTRATIVE RECORD
This Order is based upon the Administrative Record compiled
by EPA, which is available through the Freedom of Information Act
(FOIA) for public examination at the EPA Region 6 offices, 1445
Ross Avenue, Dallas, Texas, during normal business hours, Monday
through Friday.
IX. NOTICE
Whenever under the terms of this Order notice is required to
be given or a document is required to be forwarded, to EPA it
shall be directed to the address specified below, unless notice
is given in writing to Respondent of a change in address or
unless it is otherwise specifically provided in the Order. All
correspondence shall include a reference to the case caption.
Chief, Technical Section (6EN-HX)
Hazardous Waste Enforcement Branch
U.S. EPA, Region 6
144 5 Ross Avenue
Dallas, Texas 75202-2733
Attention: Gary Miller
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Whenever under the terms of this Order notice is required to
be given or a document is required to be forwarded, to
Respondent, it shall be directed to the address specified below,
unless notice is given in writing to EPA of a change in address
or unless it is otherwise specifically provided in the Order.
All correspondence shall include a reference to the case caption.
Chief Supply Corporation, Inc.
P.O. Box 24 9
Haskell, OK 74436
X. REPORTING AND PUBLIC ACCESS TO DOCUMENTS AND SAMPLING
Respondent may assert a business confidentiality claim
covering all or part of any information submitted to EPA pursuant
to this Order. Any assertion of confidentiality must be
accompanied by information that satisfies the items listed in 40
C.F.R. § 2.204(e) (4) or such claim shall be deemed waived.
Information determined by EPA to be confidential shall be
disclosed only to the extent permitted by 40 C.F.R. Part 2. If
no such confidentiality claim accompanies the information when it
is submitted to EPA, the information may be made available to the
public by EPA without further notice to Respondent. Respondent
shall not assert any confidentiality claim with regard to any
analytical or physical data. Nothing in this Order requires
Respondent to submit any document that is subject to a legitimate
claim of privilege.
XI. SITE ACCESS AND RECORD RETENTION
1. EPA, its contractors, employees, and/or any duly designated
EPA representatives are authorized and permitted pursuant to
Section 3007(a) of RCRA, 42 U.S.C. § 6927(a), to enter and
freely move about The Facility at all reasonable times, for
the purposes of enforcing the requirements of RCRA and this
Order, including:
(a) Interviewing Facility personnel and contractors about
work being performed at The Facility in carrying out
the terms of this Order; inspecting records, operating
logs, and contracts related to The Facility;
(b) Reviewing the progress of Respondent in carrying out
the terms of this Order;
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(c) Conducting such tests, sampling, or monitoring as EPA
deems necessary;
(d) Using camera, video tape recorder, sound recorder, or
other documentary type equipment to document conditions
at The Facility; and
(e) Verifying the reports and data submitted to EPA by
Respondent.
2. Respondent shall permit EPA and its representatives
access at all reasonable times to The Facility and subject
to Paragraph 3 below, to any other property to which access
is required for implementation of this Order. Respondent
shall permit such persons to inspect and copy all records,
files, photographs, documents, including all sampling and
monitoring data, that pertain to work undertaken pursuant to
this Order and that are within the possession or under the
control of Respondent or his contractors or consultants.
Nothing in this Order requires Respondent to submit any
document that is subject to a legitimate claim of privilege.
3. To the extent areas adjacent to The Facility are presently
owned by parties other than those bound by this Order,
Respondent shall obtain or will use his best efforts to
obtain site access agreements from the present owners to
perform work pursuant to this Order no later than thirty
(30) days after EPA approval of the specific workplan. Best
efforts shall include, but not be limited to, requiring
Respondent to pay reasonable rental costs and compensation
for losses sustained by the owner or occupant of the realty.
Access agreements shall provide access to Respondent, his
contractor (s), the United States, EPA, the State, and their
representatives, including contractors. Any such access
agreements shall be incorporated by reference into this
final Order. In the event that site access agreements are
not obtained within thirty (30) days after the specific
workplan approval, Respondent shall notify EPA by telephone
within twenty-four (24) hours after expiration of the above
thirty (30) day period, and shall, within seven (7) days
after the oral notification, notify EPA in writing of the
failure to gain such site access agreements regarding both
the lack of, and efforts to obtain, such agreements. If EPA
is able to obtain access, Respondent shall perform the work
described in this Order.
4. In addition, all data, information, and records created or
maintained in connection with the implementation of work
under this Order shall be made available to EPA. Respondent
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shall retain all such data, information or records for five
(5) years after termination of the Order and provide
notification to EPA sixty (60) days prior to the destruction
of any such documents.
5. All employees of Respondent and all persons, including
contractors, who engage in activity under this Order, shall
be available to and shall cooperate with the EPA.
6. Nothing in this Section is intended to limit, affect or
otherwise constrain EPA's rights of access to property and
records pursuant to applicable law.
XII. RESERVATION OF RIGHTS
1. EPA expressly reserves all statutory and regulatory powers,
authorities, rights, remedies, both legal and equitable,
which may pertain to the Respondent's failure to comply with
any of the requirements of this Order, including without
limitation, the assessment of civil penalties under Section
7003(b) of RCRA, 42 U.S.C. § S973(b). Notwithstanding the
preceding sentence, by signing this Order EPA intends and
agrees to first seek compliance with the requirements of
RCRA § 7003 pursuant to the terms of this Order. If
Respondent does not comply with the terms of this Order, EPA
may use any other authorities available to it to compel
compliance with § 7003. This Order shall not be construed
as a covenant not to sue, release, waiver, or limitation of
any rights, remedies, powers, and/or authorities, civil or
criminal, which EPA has under RCRA, CERCLA, or any other
statutory, regulatory, or common law enforcement authority
of the United States. This Order shall not be construed as
a ruling or determination of any issue related to any
Federal, State, or local permit whether required in order to
implement this Order, or required in order to continue or
alter operations at The Facility (including but not limited
to construction, operation or closure permits required under
RCRA), and Respondent shall remain subject to all such
permitting requirements.
2. EPA reserves the right to disapprove of work performed by
Respondent not in accordance with this Order and to require
that Respondent perform additional tasks consistent with
this Order.
3. EPA reserves the right to perform any portion of the work
consented to herein or any additional site characterization,
feasibility study, and remedial work as it deems necessary
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to protect human health and/or the environment. In the
event that Respondent ceases to or fails to adequately
perform the requirements contained in this Order, EPA may
exercise its authority under CERCLA to undertake response
actions at any time. In any event, EPA reserves its right
to seek reimbursement from Respondent for costs incurred by
the United States. Notwithstanding compliance with the
terms of this Order, Respondent is not released from
liability, if any, for the costs of any response actions
taken or authorized by EPA.
4. If EPA determines that activities in compliance or
noncompliance with this Order have caused or may cause a
release of hazardous waste, hazardous constituents, and/ or
solid waste, or a threat to human health and/or the
environment, or that Respondent is not capable of
undertaking any of the work ordered, EPA may order
Respondent to stop further implementation of this Order for
such period of time as EPA determines may be needed to abate
any such release or threat and/or to undertake any action
which EPA determines is necessary to abate such release or
threat. Failure to comply with EPA's stop work order may
result in a penalty not to exceed $5,000 per day of
continued non-compliance with EPA's stop work order pursuant
to RCRA Section 7003(b) of RCRA, 42 U.S.C. § 6973(b).
5. In the event EPA suspends the work or any other activity
being performed at The Facility pursuant to this Order, EPA
shall extend affected schedules under this Order for a
period of time equal to that of the suspension of the work
plus reasonable additional time for resumption of
activities. If the delay pursuant to this Section is caused
by Respondent or his contractor's noncompliance with this
Order, then any extension of the compliance deadlines shall
be at EPA's sole discretion. Any extensions in the
schedules set out in this Order must be made by EPA in
writing.
6. This Order is not intended to be nor shall it be construed
to be a permit. Further, the parties acknowledge and agree
that EPA's approval of any final workplan does not
constitute a warranty or representation that the workplan
will achieve the required cleanup or performance standards.
Compliance by Respondent with the terms of this Order shall
not relieve Respondent of his obligations to comply with
RCRA or any other applicable local, State, or Federal laws
and regulations.
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7. Notwithstanding any other provision of this Order, no action
or decision by EPA pursuant to this Order, including without
limitation, decisions of the Director of the Compliance
Assurance and Enforcement Division, or his/her authorized
representative, shall constitute final agency action giving
rise to any right of judicial review prior to EPA's
initiation of a judicial action to enforce this Order,
including an action for penalties or an action to compel
Respondent's compliance with the terms and conditions of
this Order.
8. In any action brought by EPA for a violation of this Order,
Respondent shall have the burden of showing that EPA's
position, including without limitation any interpretation of
the terms and conditions of this Order and of applicable
Federal and/or State law and regulations, was arbitrary and
capricious or otherwise not in accordance with applicable
law.
9. In any subsequent administrative or judicial proceeding
initiated by the United States for injunctive or other
appropriate relief relating to The Facility but unrelated to
matters covered within the scope of this Order, Respondent
shall not assert, and may not maintain, any defense or claim
based upon the principles of waiver, res judicata,
collateral estoppel, issue preclusion, claim-splitting, or
other defenses based upon any contention that the claims
raised by the United States in the subsequent proceeding
were or should have been raised in the present matter.
10. Respondent reserves any and all rights and defenses, whether
of a legal or equitable nature, that are not expressly
waived herein.
XIII. SUBSEQUENT MODIFICATION OF THE FINAL ORDER
1. Any deliverable required by this Order is, upon written
approval by EPA, incorporated into this Order. Any
noncompliance with such EPA-approved deliverables shall be
considered a violation of this Order.
2. No informal advice, guidance, suggestions, or comments by
EPA regarding reports, plans, specifications, schedules, and
any other written documents submitted by Respondent will be
construed as relieving Respondent of his obligation to
obtain written approval, if and when required by this Order.
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3. If EPA determines that modification of the work specified in
the Order is necessary and appropriate, EPA may require that
such modification be included.
4. If Respondent believes that a modification of the Work
specified in work plans developed pursuant to the Order is
necessary and appropriate, Respondent may petition to EPA
for an EPA determination on such potential modification,
submitting appropriate documentation. Within a reasonable
time after receipt of such petition, EPA will make a
determination. Within a reasonable time after receipt of
such petition, EPA will make a determination whether the
order should be modified.
XIV. EPA APPROVALS/DISAPPROVALS
All decisions, determinations and approvals required to be
made by EPA under this Order must be in writing. If the EPA does
not approve any deliverable required to be submitted to EPA for
its approval pursuant to this Order, the Respondent shall address
any deficiencies as directed by the EPA and revise and re-submit
the deliverable within the time period specified in this Order
for EPA's approval.
XV. PARTICIPATION IN COMMUNITY RELATIONS ACTIVITIES
Respondent, his agent or consultant shall be given notice of
and shall participate in public meetings, as appropriate, which
may be held or sponsored by EPA to explain activities at or
concerning the Facility.
XVI. TERMINATION AND SATISFACTION
Respondent may seek termination of this Order by submitting
to EPA a written document which indicates Respondent's compliance
with all requirements of this Order and the associated dates of
approval correspondence from EPA. The provisions of this Order
shall be deemed satisfied upon Respondent's and EPA's execution
of an "Acknowledgment of Termination and Agreement to Record
Preservation and Reservation of Rights" ("Acknowledgment"). The
Acknowledgment will specify that Respondent has demonstrated to
the satisfaction of EPA that the terms of this Order, including
any additional tasks required by EPA pursuant to this Order, have
been satisfactorily completed. Respondent's execution of the
Acknowledgment will affirm Respondent's continuing obligation (1)
to preserve all records as required in Section XIV: Site Access
and Record Retention, and (2) to recognize EPA's reservation of
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rights described in Section XIV: Reservation of Rights, after
all other requirements of the Order are satisfied.
XVII. QUALITY ASSURANCE
Throughout all sample collections and analysis activities,
Respondent shall use EPA-approved quality assurance, quality
control, and chain-of-custody procedures, which shall be part of
proposed and approved plans. In addition, Respondent shall:
1. Follow all relevant EPA guidance for sampling and analysis
unless determined by EPA not to be applicable;
2. Ensure that laboratories used by Respondent for analyses
perform such analyses according to EPA methods (SW-846, 3rd
Edition, or as superseded) or other methods deemed
satisfactory to EPA. If methods other than EPA methods are
to be used, Respondent shall submit all protocols to be used
for analyses to EPA for approval no later than thirty (30)
days prior to the commencement of analyses and shall not
implement such protocols until receipt of EPA approval; and
3. Ensure that laboratories used by Respondent for analyses
participate in a quality assurance and quality control
program equivalent to that which is followed by EPA. As
part of such a program, and upon request by EPA, such
laboratories shall perform analysis of a reasonable number
of known samples provided by EPA to demonstrate the quality
of the analytical data.
XVIII. STATEMENT OF SEVERABILITY
If any provision or authority of this Order, or the
application of this Order to any party or circumstances, is held
by any judicial or administrative authority to be invalid, the
application of such provisions to other parties or circumstances
and the remainder of the Order shall not be affected thereby.
XIX. OTHER ENFORCEMENT AUTHORITY
Failure or refusal to carry out the terms of this Order in a
manner deemed satisfactory to EPA may subject Respondent to a
civil penalty enforcement action in an amount not to exceed
$5,000 for each day of non-compliance with this Order, in
accordance with Section 7003(b) of RCRA, 42 U.S.C. § 6973(b).
XX. EFFECTIVE DATE
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1. This Order shall become effective upon receipt of the Order
by Respondent.
2. Respondent may, within seven (7) days after the Effective
Date of this Order, request a conference with EPA to discuss
this Order. If requested, the conference shall occur at the
U.S. Environmental Protection Agency, Region 6, First
Interstate Bank Tower, 1445 Ross Avenue, Dallas, Texas
75202-2733. This conference will be presided over by the
Regional Judicial Officer (unless another person has been
designated). Requests for a conference shall be made by
telephone followed by a written request confirmation mailed
that day, by certified mail, return receipt requested to
Efren Ordonez, Assistant Enforcement Counsel (6EN-LH), U.S.
Environmental Protection Agency, Region 6, 1445 Ross Avenue,
First Interstate Bank Building Bank Building, Dallas, Texas
75202-2733. In addition, a copy of the written confirmation
shall be mailed to Gary Miller (6EN-HX), Technical Section,
Hazardous Waste Enforcement Branch, U.S. Environmental
Protection Agency, Region 6, 1445 Ross Avenue, Dallas, TX
75202-2733 .
3. The purpose and scope of this conference shall be limited
to issues involving the implementation of the actions
required by this Order and the extent to which Respondent
intends to comply with this Order. This conference is not
an evidentiary hearing, and does not constitute a proceeding
to challenge this Order. It does not give the Respondent a
right to seek review of this Order, or to seek resolution of
potential liability, and no official stenographic record of
the conference will be made. At any conference held
pursuant to Respondent's request, the Respondent may appear
in person, or by an attorney or other representative.
4. Within three (3) business days following the conference, the
Regional Hearing Officer shall prepare and sign a written
summary of the proceeding. The summary shall address the
significant arguments raised by the Respondent, recommend
how the Order should be modified, if at all, and contain the
reasons for the revisions, if any. Based on a review of the
administrative record, any probative information or argument
made by the Respondent, and the recommendation of the
Regional Hearing Officer, the Regional Administrator may,
upon specific written notice to the Respondent, modify or
revoke the Order.
IT IS SO ORDERED:
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Date: 5/27/97 By: [s±
Jane N. Saginaw
Regional Administrator
U.S. Environmental Protection Agency
Region 6
1445 Ross Avenue
Dallas, Texas 75202-2733
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Administrative Order, styled In the Matter of: Chief Supply
Corporation, Inc., Haskell, Oklahoma, RCRA Docket No. VI-7003-97-
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04, was filed with the Regional Hearing Clerk, EPA Region 6,
Dallas, Texas, and a true and correct copy of such Administrative
Order was placed in the United States mail, postage prepaid,
certified mail, return receipt requested, on this
day of 1997, addressed to the following:
Steve Magers
President
Chief Supply Corporation, Inc.
Route 2, Box 71
Haskell, OK 74436
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION II
x
IN THE MATTER OF
TROPICAL FRUIT, S.E. (a/k/a
TROPICAL FRUIT, S.P.);
AVSHALOM LUBIN;
CESAR OTERO ACEVEDO; and
PEDRO TOLEDO GONZALEZ,
Respondents
Proceeding under Section 106(a) of
the Comprehensive Environmental
Response, Compensation, and Liability
Act, as amended, 42 U.S.C. § 9606(a)
x
I. JURISDICTION
1. This Administrative Order (hereinafter, "Order") is issued
to Tropical Fruit, S.E. (a/k/a Tropical Fruit, S.P.) ("Tropical
Fruit"), Av'shalom Lubin, Cesar Otero Acevedo, and Pedro Toledo
Gonzalez (hereinafter, "Respondents") and requires Respondents
to, among other things, immediately cease and desist from
spraying pesticides, fungicides and any other materials that
contain or are hazardous substances at their farm in Guayanilla,
Puerto Rico (hereinafter, "Respondents farm" or the "farm") in
such a manner that the pesticides, fungicides or other materials
may drift or otherwise migrate beyond the boundaries of
Respondents' farm.
2. This Order is issued pursuant to the authority vested in the
President of the United States under Section 106(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. § 9606(a), which authority was
delegated to the Administrator of the United States Environmental
Protection Agency ("EPA") on January 23, 1987, by Executive Order
No. 12580 (52 Federal Register 2926, January 29, 1987) and
further delegated to the EPA Regional Administrators by EPA
Delegation Nos. 14-14-A and 14-14-B.
ADMINISTRATIVE ORDER
INDEX NO.
II-CERCLA-97-0301
3. EPA has notified the Puerto Rico Environmental Quality Board
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("EQB") of this Order pursuant to Section 106(a) of CERCLA, 42
U.S.C. § 9606 (a) .
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II. PARTIES BOUND
4. This Order applies to and is binding upon Respondents and
their successors and assigns. Any change in the ownership,
corporate, or partnership status of a Respondent, including, but
not limited to, any transfer of assets or real or personal
property, shall not alter the responsibilities of any of the
Respondents under this Order. Respondents are jointly and
severally responsible for carrying out all activities required by
this Order. Compliance or noncompliance by one or more
Respondent(s) with any provision of this Order shall not excuse
or justify noncompliance by any other Respondents.
5. Respondents shall provide a copy of this Order to any
prospective owners, operators, lessees, or successors-in-interest
in the farm before a controlling interest in Respondents' assets,
property rights, or stock is transferred, conveyed or assigned to
the prospective owner, operator, lessee or successor.
6. Not later than sixty (60) days prior to any transfer,
conveyance or assignment by any Respondent of any real property
interest in any property included within the Respondents' farm,
such Respondent shall submit a true and correct copy of the
applicable document(s) to EPA, and shall identify the transferee,
conveyee, or assignee by name, principal business address and
effective date of the transfer.
II. DEFINITIONS
7. Unless otherwise expressly provided herein, terms used in
this Order which are defined in CERCLA or in regulations
promulgated under CERCLA shall have the meaning assigned to them
in CERCLA or its implementing regulations. Whenever terms listed
below are used in this Order, the following definitions shall
apply:
a. "Day" means a calendar day unless otherwise expressly
stated. "Working day" shall mean a day other than a
Saturday, Sunday, or Federal holiday. In computing any
period of time under this Order, where the last day
would fall on a Saturday, Sunday, or Federal Holiday,
the period shall run until the close of business on the
next working day.
b. "Hazardous substance" shall have the meaning set forth
at Section 101(14) of CERCLA, 42 U.S.C. § 9601(14).
c. "Party" or "Parties" means the United States
Environmental Protection Agency and/or Respondents.
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III. FINDINGS 07 FACT AND CONCLUSIONS OF LAW
8. Respondent Tropical Fruit, S.E. is a partnership.
Respondents Avshalom Lubin, Cesar Otero Acevedo, and Pedro Toledo
Gonzalez are partners of Tropical Fruit, S.E.
9. Respondents own and/or operate a farm consisting of
approximately 1,243 acres located at or near Rd. 335, Km. 5 in
the Rural Zone of Boca in Guayanilla, Puerto Rico. Respondents
grow, among other crops, bananas, mangoes and plantains at their
farm.
10. Respondents' crops, including Respondents' mango trees, are
planted up to a fenceline which serves as the boundary between
Respondents' farm and the residential community of Boca. The
Yauco River runs along the Boca side of this fenceline, and the
community of Boca is located immediately beyond the river. The
community of Boca includes approximately 250 people living in
approximately 80 dwellings. Residential dwellings are as close
as 150 feet to the boundary of Respondents' farm.
11. Respondents use a number of pesticides and/or fungicides at
their farm, including Supracide-2E, Captan 50, Malathion, and
Dithane F-45. Malathion and Captan are hazardous substances
within the meaning of Section 101(14) of CERCLA. Supracide-2E
contains methidathion, xylene and ethyl benzene, each of which is
a hazardous substance within the meaning of Section 101(14) of
CERCLA. Dithane F-45 contains ethylene bisdithiocarbamate ion,
which is a hazardous substance under Section 101(14) of CERCLA.
12. Respondents also use, among other chemicals, the fungicides
Kocide 101 and Wettable Sulfur at their farm.
13. Respondents apply pesticides, fungicides and other materials
at their farm using, among other methods, a high pressure sprayer
that is towed behind a tractor. Pesticides and fungicides are
sprayed throughout the farm, including on the crops growing
adjacent to Respondents' fenceline and property boundary line.
14. The Puerto Rico Department of Agriculture ("PRDA") has
detected Malathion at a concentration of 10.84 parts per million
("ppm") in soil collected from the property of a small business
("Ebanisteria Rodriguez") in Boca located in close proximity to
Respondents' farm.
15. PRDA has detected methidathion at concentrations of less
than .10 ppm in two soil samples collected approximately twenty
feet outside the boundary of the 2-4-6 Section (La Uva Sector) of
Respondents' farm.
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16. According to a June 24, 1996 inspection report, on May 21,
1996, PRDA Pesticides Inspector Jorge Maldonado Medina and
Roberto Rivera Velez of the EQB observed a high-pressure spraying
machine (a "Smart Sprayer") operating at Respondents' farm. As
Mr. Rivera was walking along Road No. 33 5 (at a point where the
road is very close to Respondents' farm) during a time when the
Smart Sprayer was being operated, he was hit by spray drift from
the Smart Sprayer.
17. According to a July 29, 1996 inspection report, on July 16,
1996, PRDA Pesticides Inspector Medina approached the fence
serving as the boundary between Boca and Respondents1 farm in
order to observe Respondents' spraying operations. While walking
outside the boundary of Respondents' property, Mr. Medina "felt
that the spray drift [from Respondents' spraying unit] fell all
over my body..."
18. PRDA has obtained affidavits from Boca residents who claim
to have experienced health effects or problems that arose when
Respondents conducted spraying operations at the farm. The
reported health effects or problems include skin rash,
respiratory problems, chest aches, eye irritation, fatigue,
headache and nausea. Several of the residents have complained of
odors coming from Respondents' farm during times that Respondents
were conducting spraying operations, and others claim to have
been hit by the spray from material being applied at Respondents'
farm.
19. The Material Safety Data Sheet ("MSDS") for Malathion
indicates that exposure to Malathion can cause, among other
symptoms, weakness, headache, tightness of chest, blurred vision,
non-reactive pinpoint pupils, excessive salivation, excessive
sweating, nausea, vomiting, diarrhea, and abdominal cramps.
20. The MSDS for Supracide-2E indicates that exposure to
Supracide-2E can result in, among other symptoms, headache,
dizziness, blurred vision, weakness, nausea, diarrhea, cramps,
uncontrollable muscle twitches, convulsions and coma. Contact
with eyes may cause irreversible eye injury. According to the
Handbook of Toxic and Hazardous Chemicals and Carcinogens (3rd
Ed. 1991), exposure to Supracide-2E can also cause death from
respiratory failure.
21. On May 6, 1996, PRDA issued an administrative order to
Tropical Fruit, S.E., requiring that Tropical Fruit cease the use
of Captan 50, Dithane F-45, Wettable Sulfur, and Kocide 101 on
mango trees because none of these substances are registered for
use on mangoes. Tropical Fruit continued to spray in violation
of the administrative order, and the Puerto Rico Department of
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Justice ("PRDOJ") therefore filed a complaint with the Puerto
Rico Commonwealth Court seeking, inter alia. a temporary
restraining order ("TRO") requiring Tropical Fruit to stop using
the four pesticides and/or fungicides on mangoes. The TRO was
granted on June 19, 1996.
22. Tropical Fruit continued to spray in violation of the TRO.
After the TRO expired on July 9, 1996, PRDOJ filed a motion in
the Commonwealth Court for a preliminary injunction ("PI")
against Tropical Fruit.
23. The Commonwealth Court held a hearing to consider PRDOJ1s
motion for a PI on November 14, 1996. On November 20, 1996, the
Court issued a Resolution ordering Tropical Fruit and Avshalom
Lubin to, among other things, comply with all label requirements
for the use of "pesticides and other toxic substances" at the
Tropical Fruit farm, and to establish a 300-foot interior buffer
zone measured from the boundary of the farm property within which
Tropical Fruit would not operate a Smart Sprayer unit. The Court
ordered the parties to delineate the buffer zone on or before
November 29, 1996, and to notify the Court by December 10, 1996
as to whether the parties believe that the buffer zone is
effective to prevent pesticides and other toxic substances from
drifting beyond the boundaries of Respondents' farm.
24. To date, the buffer zone has not been established because of
differences between PRDOJ, Tropical Fruit and Mr. Lubin with
regard to the location of the buffer zone. On December 2, 1996,
PRDOJ filed a motion with the Commonwealth Court requesting,
among other things, that the Court modify its November 20, 1996
Resolution to require that the buffer zone be measured from
identifiable landmarks or, in the alternative, to require that
Tropical Fruit and Mr. Lubin produce a map of the farm that shows
the location of the farm boundaries from which the buffer zone
can be measured.
25. The Respondents' farm and the property adjacent to the farm
onto which hazardous substances have been released constitute a
"facility" within the meaning of Section 101(9) of CERCLA, 42
U.S.C. § 9601 (9) .
26. Respondents are "persons" within the meaning of Section
101(21) of CERCLA, 42 U.S.C. § 9601(21).
27. The drift of hazardous substances including Malathion and
methidathion (contained in Supracide-2E) from Respondents' farm
onto the adjacent land constitutes a "release" within the meaning
of Section 101(22) of CERCLA, 42 U.S.C. § 9601(22). In addition,
there is a threat of future releases of hazardous substances from
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Respondents' farm.
28. Respondents are the current owners and/or operators of a
facility from which there has been a release or threatened
release of a hazardous substance. Respondents also owned and/or
operated a facility during times that hazardous substances were
disposed of there. Respondents thus are responsible parties
within the meaning of Sections 107(a)(1) and (a)(2) of CERCLA, 42
U.S.C. §§ 9607(a)(1) and (a)(2).
29. This Order is necessary to prevent the continuing release
and threatened release of hazardous substances from Respondents'
farm. EPA is issuing this Order notwithstanding the November 20,
1996 Resolution issued by the Commonwealth Court, because of
Tropical Fruit's violations of the TRO and because EPA believes
that the establishment of the 300-foot buffer zone required by
the Commonwealth Court may not be sufficient to insure that none
of the pesticides or fungicides used at Respondents' farm drift
or otherwise migrate beyond the boundaries of Respondents' farm.
The requirements of this Order are in addition to the
requirements of the PRDA's May 6, 1996 administrative order and
the November 20, 1996 Resolution issued by the Commonwealth
Court.
IV. DETERMINATIONS
30. The actual or threatened release of hazardous substances
from Respondents' farm may present an imminent and substantial
endangerment to the public health, welfare, or the environment
within the meaning of Section 106(a) of CERCLA, 42 U.S.C.
§ 9606(a) .
31. The actions required by this Order are necessary to protect
the public health or welfare or the environment, are in the
public interest, and are consistent with CERCLA and the National
Contingency Plan ("NCP"), 40 CFR Part 300.
V. ORDER
32. Based upon the foregoing Findings of Fact, Conclusions of
Law, Determinations, and other information available to EPA, it
is hereby ordered that Respondents shall immediately cease and
desist from spraying Malathion, Supracide-2E, Captan 50, Dithane
F-45, and any other materials that contain or are hazardous
substances, at Respondents' farm in such a manner that the
pesticides, fungicides or other materials may drift or otherwise
migrate beyond the boundaries of Respondents' farm. Respondents
also shall comply with the requirements of this Order as
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specified below. All activities specified below shall be
initiated and completed as soon as possible even though maximum
time periods for their completion are specified herein.
Project Coordinator
33. Within five (5) days after the effective date of this Order,
Respondents shall select a Project Coordinator and submit the
proposed Project Coordinator's name, address, telephone number,
and qualifications to EPA. The Project Coordinator shall be
responsible for overseeing the Respondents' compliance with the
requirements of this Order. The Project Coordinator shall be
present at Respondents' farm during all times that Malathion,
Supracide-2E, Captan 50, Dithane F-45, and any other pesticides,
fungicides or other materials containing hazardous substances are
sprayed at the farm. The Project Coordinator shall have
technical expertise sufficient to adequately oversee Respondents'
compliance with all requirements of this Order. EPA retains the
right to disapprove of any Project Coordinator proposed by
Respondents. If EPA disapproves of a'proposed Project
Coordinator, Respondents shall propose a different Project
Coordinator and shall notify EPA of that person's name, address,
telephone number, and qualifications within seven (7) days
following EPA's disapproval. Receipt by Respondents' approved
Project Coordinator of any notice or communication from EPA
relating to this Order shall constitute receipt by Respondents.
Respondents may change their Project Coordinator, subject to
approval by EPA as set forth in this paragraph. Respondents
shall notify EPA at least seven (7) days before such a change is
made. The initial notification may be orally made but it shall
be promptly followed by a written notice.
Description of Work
34. Within thirty (30) days of the effective date of this Order,
Respondents shall submit to EPA for review and approval a plan
(hereinafter, the "Plan") which shall describe, in detail, how
Respondents will comply with this Order. The Plan shall identify
all pesticides, fungicides and other materials that contain
hazardous substances that may be sprayed at Respondents' farm
after the effective date of this Order, and shall describe how
Respondents will spray or otherwise apply each such pesticide,
fungicide or other material that contains hazardous substances so
that those materials will not drift or otherwise migrate beyond
the boundaries of Respondents' farm. With respect to each such
pesticide, fungicide and other material, the Plan shall identify:
a. how each pesticide, fungicide and other material will
be sprayed or otherwise applied, including, but not
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limited to, the type of equipment that will be used to
spray or otherwise apply each pesticide, fungicide or
other material;
b. all wind and other weather conditions that must exist
in order for each pesticide, fungicide and other
material containing a hazardous substance to be sprayed
at Respondents' farm;
c. the time(s) of year that each pesticide, fungicide and
other material containing a hazardous substance may be
sprayed; and
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d. the minimum distance from the farm's boundaries that
the pesticides, fungicides and other, materials will be
sprayed.
35. The Plan shall include a map of Respondents' farm which
identifies the location(s) at the farm where each pesticide,
fungicide or other material containing a hazardous substance
may be sprayed.
36. Respondents shall not spray any pesticide or fungicide at
their farm in a manner which is inconsistent with the
requirements on the label for that pesticide or fungicide.
Similarly, with respect to materials that are not pesticides
or fungicides, but which contain hazardous substances and
which Respondents intend to spray or otherwise apply at
their farm, Respondents shall not spray or otherwise apply
such materials in a manner which is inconsistent with the
manufacturer's directions for use of each such substance.
The Plan shall include a photocopy of the label of each
pesticide and fungicide to be sprayed or otherwise applied
by Respondents, as well as copies of all manufacturers'
instructions that apply to the spraying or other application
of any other material containing a hazardous substance.
37. EPA will approve the Plan, in whole or in part, and/or will
require modifications thereto pursuant to paragraphs 44 through
46, below. Upon its approval by EPA, the Plan shall be deemed to
be incorporated into and shall be an enforceable part of this
Order.
38. Immediately upon EPA's approval of the Plan, any and all
spraying of pesticides, fungicides and other materials that
contain hazardous substances at Respondents' farm shall be
conducted in conformance with the Plan (as well as any other
legal requirements which govern or relate to such spraying). If
EPA approves a portion of the Plan but finds the remainder
deficient, then EPA, at its discretion, may direct Respondents to
proceed with implementation of the approved portion of the Plan.
39. Before spraying any pesticides, fungicides or other
materials containing hazardous substances at their farm that have
not previously been identified pursuant to paragraph 34, above,
Respondents must submit to EPA an amendment to the Plan which
provides all information required by paragraphs 34 through 36,
above, with respect to each such pesticide, fungicide and other
material, and must comply with all requirements of this Order
with respect to each such pesticide, fungicide and other
material. EPA will approve the amendment to the Plan, in whole
or in part, and/or will require modifications thereto pursuant to
10
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paragraphs 44 through 46, below. Upon its approval by EPA, the
amendment shall be deemed to be incorporated into and shall be an
enforceable part of this Order.
On-scene Coordinator. Other Personnel, and
Modifications to EPA-Approved Work Plan
40. All activities required of Respondents under the terms of
this Order shall be performed only by well-qualified persons
possessing all necessary permits, licenses, and other authori-
zations required by federal, Commonwealth and local governments,
and all work conducted pursuant to this Order shall be performed
in accordance with prevailing professional standards.
41. The current EPA On-Scene Coordinator ("OSC") for this matter
is :
Luis Santos
On-Scene Coordinator
Enforcement and Superfund Branch
Caribbean Environmental Protection Division
U.S. Environmental Protection Agency
Centro Europa Building, Suite 417
14 92 Ponce De Leon Avenue, Stop 22
San Juan, PR 00907-4127
(787) 729-6951, Extension 235.
EPA will notify the Project Coordinator if EPA's On-Scene
Coordinator should change.
42. EPA, including the OSC, will conduct oversight of the
implementation of this Order. The OSC shall have the authority
vested in an OSC by the NCP, including the authority to halt or
direct any activities required by this Order.
43. As appropriate during the course of implementation of
the actions required of Respondents pursuant to this Order,
Respondents or their consultants or contractors, acting through
the Project Coordinator, may confer with EPA concerning the
Order's requirements. Based upon new circumstances or new
information not in the possession of EPA on the date of this
Order, the Project Coordinator may request, in writing, EPA
approval of modification(s) to the EPA-approved Plan. Only
modifications approved by EPA in writing shall be deemed
effective. Upon approval by EPA, such modifications shall be
deemed incorporated into this Order and shall be implemented by
Respondents.
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Plans and Reports Requiring EPA Approval
44. If EPA disapproves or otherwise requires any modifications
to the Plan, or any other report or item required to be submitted
to EPA for approval pursuant to this Order, Respondents shall
have fourteen (14) days from the receipt of notice of such
disapproval or the required modifications to correct any
deficiencies and resubmit the Plan, report, or other written
document to EPA for approval, unless a shorter or longer period
is specified in the notice. Any notice of disapproval will
include an explanation of why the Plan, report, or other item is
being disapproved. Respondents shall address each of the
comments and resubmit the Plan, report, or other item with the
required changes within the time stated above. At such time as
EPA determines that the Plan, report, or other item is
acceptable, EPA will transmit to Respondents a written statement
to that effect.
45. If the Plan or any other report or item required to be
submitted to EPA for approval pursuant to this Order is
disapproved by EPA, even after being resubmitted following
Respondents' receipt of EPA's comments on the initial submittal,
Respondents shall be deemed to be out of compliance with this
Order. If any resubmitted Plan, report, or other item, or
portion thereof, is disapproved by EPA, EPA may again direct
Respondents to make the necessary modifications thereto, and/or
EPA may amend or develop the item(s) and recover the costs from
Respondents of doing so. Respondents shall implement any such
Plan or item(s) as amended or developed by EPA.
46. EPA shall be the final arbiter in any dispute regarding the
sufficiency or acceptability of all documents submitted and all
activities performed pursuant to this Order. EPA may modify
those documents and/or require the performance of additional work
unilaterally.
47. All plans, reports and other submittals required to be
submitted to EPA pursuant to this Order, upon approval by EPA,
shall be deemed to be incorporated into and an enforceable part
of this Order.
Reporting
48. During the implementation of this Order, Respondents shall,
on the first day of each month, provide a written progress report
to EPA which shall, among other things, (a) identify each
pesticide, fungicide and other material containing a hazardous
substance that was sprayed at Respondents' farm during the
previous month; (b) describe how the pesticide, fungicide and
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other material was sprayed in accordance with the EPA-approved
Plan; (c) state the volume of each pesticide, fungicide and other
material that was sprayed at the farm during the previous month;
(d) identify the date(s) and time(s) that each pesticide,
fungicide and other material was sprayed at the farm; (e)
indicate where at the farm each pesticide, fungicide and other
material was sprayed; and (f) identify all spraying applications
of pesticides, fungicides and other materials containing
hazardous substances which are scheduled during the next month,
including the date and time of each scheduled application, and
the location at the farm where each pesticide, fungicide and
other material is scheduled to be sprayed.
49. The Plan and all documents submitted by Respondents to EPA
which purport to document Respondents' compliance with the terms
of this Order shall be signed by a responsible official of
Tropical Fruit, S.E. or by the Project Coordinator who has been
delegated this responsibility by Respondents and whose
qualifications have been found by EPA to be acceptable pursuant
to paragraph 33 of this Order. For purposes of this paragraph, a
responsible official is an official who is in charge of a
principal business function.
50. The Plan and all other documents required to be submitted to
EPA under this Order shall be sent to the following addressees:
1 copy (via certified mail) to:
Luis Santos
On-Scene Coordinator
Enforcement and Superfund Branch
Caribbean Environmental Protection Division
U.S. Environmental Protection Agency
Centro Europa Building, Suite 417
14 92 Ponce De Leon Avenue, Stop 22
San Juan, PR 00907-4127
1 copy to:
Chief, Pesticides and Toxic Substances Branch
Division of Enforcement and Compliance Assistance
U.S. Environmental Protection Agency
2890 Woodbridge Avenue, Bldg. 209 (MS-240)
Edison, NJ 08837
Attention: Leader, Pesticides Team
1 copy to:
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Chief, New York/Caribbean Superfund Branch
Office of Regional Counsel
United States Environmental Protection Agency
290 Broadway, 17th Floor
New York, New York 10007
Attention: Tropical Fruit Attorney
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1 copy to:
Genaro Torres
Director, Environmental Emergency Area
Puerto Rico Environmental Quality Board
P.O. Box 11488
Santurce, Puerto Rico 00910
1 copy to:
Arline R. de Gonzalez
Director, Agricultural Laboratory
Commonwealth of Puerto Rico
Department of Agriculture
P.O. Box 10163
Santurce, Puerto Rico 00908
Oversight
51. During the implementation of the requirements of this Order,
Respondents shall be available for such conferences with EPA and
inspections by EPA or its authorized representatives as EPA may
determine are necessary to adequately oversee Respondents1
compliance with this Order, including inspections at Respondents'
farm.
52. Respondents and their employees, agents, contractor(s) and
consultant (s) shall cooperate with EPA in its efforts to oversee
Respondents' compliance with this Order.
Community Relations
53. Respondents shall cooperate with EPA in providing
information to the public with regard to Respondents' compliance
with this Order.
Access to Property and Information
54. EPA, PRDA, EQB and their designated representatives,
including, but not limited to, employees, agents, contractor(s)
and consultant(s) thereof, shall be permitted to observe
Respondents' spraying of pesticides, fungicides and other
materials containing hazardous substances at Respondents' farm in
order to ensure Respondents' compliance with this Order.
Respondents shall at all times permit EPA, PRDA, EQB and their
designated representatives full access to and freedom of movement
at the farm for purposes of inspecting or observing Respondents'
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implementation of this Order, verifying the information submitted
to EPA by Respondents, or for any other purpose EPA determines to
be reasonably related to EPA oversight of the implementation of
this Order.
55. Upon request, Respondents shall provide EPA, PRDA and EQB
with access to all records and documentation related to the
spraying of pesticides, fungicides and other materials containing
hazardous substances at Respondents' farm, the release of
pesticides, fungicides or other hazardous substances from
Respondents' farm, and the actions conducted pursuant to this
Order except for those items, if any, subject to the attorney-
client or work product privilege. Nothing herein shall preclude
Respondents from asserting a business confidentiality claim
pursuant to 40 C.F.R. Part 2, Subpart B. All data, information
and records created, maintained, or received by Respondents or
their contractor (s) or consultant(s) in connection with
Respondents' implementation of this Order including, but not
limited to, contractual documents, invoices, receipts, work
orders and disposal records shall, without delay, be made
available to EPA upon request, subject to the same privileges
specified above in this paragraph. EPA shall be permitted to
copy all such documents.
56. Notwithstanding any other provision of this Order, EPA
hereby retains all of its information gathering, access, and
inspection authority under CERCLA, the Solid Waste Disposal Act
(42 U.S.C. § 6901, seq.). the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. § 136, et sea.), and any other
applicable statute or regulations
Record Retention. Documentation. Availability of Information
57. With respect to each spraying of pesticides, fungicides or
other materials containing hazardous substances at Respondents'
farm, Respondents shall preserve all documents and information
relating to Respondents' implementation of the requirements of
this Order for six years after each spraying of a pesticide,
fungicide or other material containing a hazardous substance. At
the end of the six year period, Respondents shall notify EPA at
least thirty (30) days before any such document or information is
destroyed that such documents and information are available for
inspection. Upon request. Respondents shall provide EPA with the
originals or copies of such documents and information.
58. All documents submitted by Respondents to EPA in the course
of implementing this Order shall be available to the public
unless identified as confidential by Respondents pursuant to 40
CFR Part 2, Subpart B, and determined by EPA to merit treatment
16
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as confidential business information in accordance with
applicable law. In addition, EPA may release all such documents
to PRDA and EQB, and PRDA and EQB may make those documents
available to the public unless Respondents conforms with
applicable Commonwealth law and regulations regarding
confidentiality. Respondents shall not assert a claim of
confidentiality regarding any monitoring or hydrogeologic data,
any information specified under Section 104(e)(7)(F) of CERCLA,
or any other chemical, scientific or engineering data relating to
Respondents' implementation of this Order.
Compliance With Other Laws
59. All actions required pursuant to this Order shall be
performed in accordance with all applicable Commonwealth and
federal laws and regulations. This Order is not, nor shall it be
construed to be, a permit issued pursuant to any federal or
Commonwealth statute or regulation.
Emergency Response and Notification of Releases
60. Upon the occurrence of any event at Respondents' farm which,
pursuant to Section 103 of CERCLA, 42 U.S.C. § 9603, requires
reporting to the National Response Center [(800) 424-8802],
Respondents also shall immediately orally notify the Chief of the
Response and Prevention Branch of the Emergency and Remedial
Response Division of EPA, Region II, at (908) 321-6656, or the
EPA Region II Emergency 24-hour Hot Line at (908) 548-8730, of
the incident or conditions at Respondents' farm. Respondents
shall also submit a written report to EPA within seven (7) days
after the onset of such an event, setting forth the events that
occurred and the measures taken or to be taken to mitigate any
release or endangerment caused or threatened by the release and
to prevent the reoccurrence of such a release. The reporting
requirements of this paragraph are in addition to, and not in
lieu of, the reporting requirements under CERCLA Section 103, 42
U.S.C. § 9603, and Section 304 of the Emergency Planning and
Community Right-To-Know Act of 1986, 42 U.S.C. § 11004.
61. In the event of any action or occurrence during Respondents'
performance of the requirements of this Order which causes or
threatens to cause a release of a hazardous substance or which
may present an immediate threat to public health or welfare or
the environment, Respondents shall immediately take all
appropriate action to prevent, abate, or minimize the threat and
shall immediately notify EPA as provided in the preceding
paragraph. In the event that EPA determines that (a) the
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activities performed pursuant to this Order, (b) significant
changes in conditions at Respondents' farm, or (c) emergency
circumstances occurring at Respondents' farm pose a threat to
human health or the environment, EPA may direct Respondents to
stop further implementation of any actions pursuant to this Order
or to take other and further actions reasonably necessary to
abate the threat.
62. Nothing in the preceding paragraph shall be deemed to limit
any authority of the United States to take, direct, or order all
appropriate action to protect human health and the environment or
to prevent, abate, or minimize an actual or threatened release of
hazardous substances on, at, or from Respondents' farm.
Delay in Performance
63. Any delay in implementation of this Order that, in EPA's
judgment, is not properly justified by Respondents under the
terms of paragraph 64 below, shall be considered a violation of
this Order. Any delay in performance of this Order shall not
affect Respondents' obligations to perform all obligations fully
under the terms and conditions of this Order.
64. Respondents shall notify EPA of any delay or anticipated
delay in performing any requirement of this Order. Such
notification shall be made by telephone to EPA's OSC within
forty-eight (48) hours after Respondents first knew or should
have known that a delay might occur. Respondents shall adopt all
reasonable measures to avoid or minimize any such delay. Within
five (5) business days after notifying EPA by telephone,
Respondents shall provide written notification fully describing
the nature of the delay, any justification for the delay, any
reason why Respondents should not be held strictly accountable
for failing to comply with any relevant requirements of this
Order, the measures planned and taken to minimize the delay, and
a schedule for implementing the measures that have been or will
be taken to mitigate the effect of the delay. Increased cost or
expense associated with the implementation of the activities
called for in this Order is not a justification for any delay in
performance.
Communications
65. The Plan and any other report or item required to be
submitted to EPA for approval pursuant to this Order, as well as
any modifications of this Order, must be approved in writing by
the Chief of the Pesticides and Toxic Substances Branch, Division
of Enforcement and Compliance Assurance, EPA Region II.
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66. No informal advice, guidance, suggestion, or comment by EPA
regarding reports, plans, specifications, schedules, or any other
writing submitted by the Respondents shall relieve Respondents of
their obligation to obtain such formal approval as may be
required by this Order and to comply with all requirements of
this Order unless it is modified in writing.
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Enforcement and Reservation of Rights
67. Notwithstanding any other provision of this Order, failure
of Respondents to comply with any provision of this Order may
subject Respondents to civil penalties of up to twenty-five
thousand dollars ($25,000) per violation per day, as provided in
Section 106(b)(1) of CERCLA, 42 U.S.C. § 9606(b)(1). Respondents
may also be subject to punitive damages in an amount at least
equal to and not more than three times the amount of any costs
incurred by the United States as a result of such failure or
refusal to comply with this Order, as provided in Section
107(c)(3) of CERCLA, 42 U.S.C. § 9607(c)(3). Should Respondents
fail or refuse to comply with this Order or any portion thereof,
EPA may seek judicial enforcement of this Order pursuant to
Section 106 of CERCLA, 42 U.S.C. § 9606.
68. Nothing herein shall limit the power and authority of EPA or
the United States to take, direct, or order all actions necessary
to protect public health, welfare, or the environment or to
prevent, abate, or minimize an actual or threatened release of
hazardous substances, pollutants or contaminants, or hazardous or
solid waste on, at, or from Respondents' farm. Further, nothing
herein shall prevent EPA from seeking legal or equitable relief
to enforce the terms of this Order, from taking other legal or
equitable action as it deems appropriate, or from requiring the
Respondents in the future to perform additional activities
pursuant to CERCLA or any other applicable law. EPA reserves the
right to bring an action against Respondents under Section 107 of
CERCLA, 42 U.S.C. § 9607, for recovery of any response costs
incurred by the United States related to this Order or
Respondents' farm.
Other Claims
69. By issuance of this Order, the United States and EPA assume
no liability for injuries or damages to persons or property
resulting from any acts or omissions of Respondents or
Respondents' employees, agents, contractors, or consultants in
carrying out any action or activity pursuant to this Order. The
United States or EPA shall not be held out as or deemed a party
to any contract entered into by the Respondents or their
employees, agents, successors, representatives, assigns,
contractors, or consultants in carrying out actions pursuant to
this Order.
70. Nothing in this Order constitutes or shall be construed as a
satisfaction of or release from any claim or cause of action
against the Respondents or any person not a party to this Order
20
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for any liability that Respondents or other persons may have
under CERCLA, other statutes, or the common law, including but
not limited to any claims of the United States for injunctive
relief, costs, damages, and interest under Sections 106(a) and
107 of CERCLA, 42 U.S.C. §§. 9606(a) and 9607. Nothing herein
shall constitute a finding that Respondents are the only
responsible parties with respect to the release and threatened
release of hazardous substances at and from Respondents' farm.
71. Nothing in this Order shall affect any right, claim,
interest, defense, or cause of action of any party hereto with
respect to third parties.
72. Nothing in this Order shall be construed to constitute
preauthorization under Section 111(a)(2) of CERCLA, 42 U.S.C.
§ 9611(a)(2), and 40 CFR § 300.700(d).
Opportunity to Confer. Effective Date
73. This Order shall be effective within four days of receipt by
Respondents, unless a conference is timely requested pursuant to
paragraph 74, below. If such conference is timely requested,
this Order shall become effective one (1) day following the date
the conference is held, unless the effective date is modified by
EPA. All times for performance of ordered activities shall be
calculated from this effective date.
74. Respondents may, within three days after receipt of this
Order, request a conference with EPA to discuss this Order. If
requested, the conference shall occur on the next business day
following Respondents' request for a conference. This conference
may occur as a teleconference.
75. The purpose and scope of the conference shall be limited to
issues involving the implementation of this Order and the extent
to which Respondents intend to comply with this Order. This
conference is not an evidentiary hearing, and does not constitute
a proceeding to challenge this Order. It does not give
Respondents a right to seek review of this Order or to seek
resolution of potential liability, and no official stenographic
record of the conference will be made. At any conference held
pursuant to Respondents' request, Respondents may appear in
person or by an attorney or other representative.
76. A request for a conference must be made by telephone to Paul
Simon, Esq., Section Chief, New York/Caribbean Superfund Branch,
Office of Regional Counsel, EPA Region II, telephone (212) 637-
3172. Written confirmation of Respondents' request for a
21
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teleconference must be sent by facsimile that day to Paul Simon
at (212) 637-3104, and to Luis Santos at (787) 729-7747.
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Notice of Intent to Comply
77. Respondents shall provide, not later than three (3) days
after the effective date of this Order, written notice to EPA
stating whether Respondents will comply with the terms of this
Order. Any Respondent that does not unequivocally commit to
comply with this Order shall be deemed to have violated this
Order and to have failed or refused to comply with this Order.
Respondents' written notice shall describe, using facts that
exist on or prior to the effective date of this Order, any
"sufficient cause" defenses asserted by Respondents under
Sections 106(b) and 107(c)(3) of CERCLA, 42 U.S.C. §§ 9606(b) and
9607(c)(3). The absence of a response by EPA to the notice
required by this paragraph shall not be deemed to be an
acceptance of Respondents' assertions.
U.S. ENVIRONMENTAL PROTECTION AGENCY
/s/ 12/20/96
JEANNE M. FOX Date of Issuance
Regional Administrator
U.S. Environmental Protection Agency
Region II
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. -tZ-.ZL
Z>o=Kez r.-- PVS-
ENVIRONS! XT AL. PROTECT!ok agency
REGION IX
IN THE HATTER OF:
UPPER LAKE POMO WATER
ASSOCIATION
dha Upper Lake Hardisty
Comaunity Water Systec
?WS ID NO. 0605025
PROCEEDINGS UNDER Section
1431 (a) (1) of .the SAFE
DRINKING WATER ACT, *2 U.S.C.
5 300i(a)(I)
FINDING OF IMMINENT AND
SUBSTANTIAL ENDANGER.YZX7
TO THE HEALTH OF PEP-SONS
AND
EMERGENCY ADMINISTRATIVE OrJ
Docket No. FVS-EAO-90-012
The following Findings are made and Order issued under the
authority vested in the Administrator of the United states
Environaental Protection Agency ("EPA") by Section 1431(a)(1) cf
the Safe Drinking Water Act ("SDWA"), 42 U.S.C. S300i(a)(l). The
authority to take these actions has been duly redelegated to the
undersigned Chief, Drinking Water and Groundwater Protection
branch (formerly Drinking Water Branch), Water Manageaent
Division, Region IX.
findincs
1. The Upper Lake Pomo Water Association ("ULPWA" or
"Respondent") is a nonprofit association formed, inter alia, for
the purpose of owning, operating and aaintaining facilities ob-
tained through the Sanitation Facilities Act, including the
public water eystea known as the Upper Lake Hardisty Conaunity
Water Systea ("ULHCWS"). On July 1, 1985, the Indian Health
Service of the U.S. Departaent of Health and Huaan Services en-
tered into a Transfer Agreement with Respondent, the Upper Lake
Rancheria (formally known as the Upper Lake Band of Porno Indians
of Upper Lake Rancheria of California (the "Rancheria")), and the
Upper Lake Poao Association ("ULPA"), whereby the Indian Health
Service transferred to Rancheria and ULPA certain comaunity
facilities constructed by it pursuant to the Sanitation
1
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Dc>2£e" r.z . C-1
Facilities Act (Pus. L. 86-121, Sec. 7) . Rancheria and CL?A
thereupon transferred such facilities to the ULFVA. The Ranch-
eria, an Indian Tribal Entity recognized and eligible to receiv«
services fron the United States Bureau of Indian Affairs, acts
through the Chairperson of the Upper Lake Tribal Council (the
¦Tribal Council") and is an "Indian Tribe" within the meaning oi
Section 1401(14) of the Act, 42 U.S.C. S 300f(14). The ULPA,
which acts through its President, is a nonprofit association
formed for the purpose of holding and managing tribal lands and
the vater supply system serving such lands. The Rules and
Regulations of the ULPWA were established under the tribs.1
authority of the ULPA and require the management Committee of
UUPWA to manage the ULPWA in accordance with the general plans
and business policies approved by the members of the ULPA.
2. Respondent owns and operates, and Delvin Holder operates,
ULHCWS, a public water system on the Hardisty Ranch portion of
the Rancheria, which is located northwest of the town of Upper
Lake, Lake County, California, approximately one mile north of
State Highway 20 on Elk Mountain Road. Hardisty Ranch is the
northernmost tract of the Rancheria.
2. Respondent provides piped water to the public for human con-
sumption and regularly serves 16 service connections and a
population of approximately 70 persons.
4. Respondent is a "person" within the meaning of 51^01(12) of
the SDWA and 40 C.F.R. 5141.2 and a "supplier of water" as that
term is defined in 51401(5) of the SDWA and 40 C.F.R. 5141.2.
Respondent owns and operates a "public water system" as defined
by $1401(4) of the SDWA and 40 C.F.R. 5141.2 and a "community
water system" as defined by 40 C.F.R. $141.2.
5. Respondent's public water system utilizes a ground water
source.
6. Respondent's public vater system is subject to the Safe
Drinking Water Act, 42, D.S.C. 5 300f et seq., And the National
Primary Drinking Water Regulations, 40 C.F.R. Part 141, promul-
gated pursuant thereto including, Inter alia, the maximua con-
taminant levels at 4 0 C.F.R. f 141.14; the monitoring and
analytical requirements at 40 C.F.R. IS 141.21; and the reporting
and public notification requirements at 40 C.F.R. fS 141.31 and
141.32.
2
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Docxe* r.' . F^S-LAC-5 : -: LI
T. Respondent's public water system is located on Iniiar. itr.d
vith respect to w£ich the Stat* of California does not have tie
necessary jurisdiction or its jurisdiction is in question.
Respondent's public water system is therefore subject to direct
regulation by EPA pursuant to 40 C.F.R. § 142.3(b). The state
authorities have not acted to protect the health of persons
served by Respondent's public water systea because the State
authorities lack jurisdiction over Respondent. Both the Rar.ch-
eria and the Tribal Council, the local authorities, have failed
to act to protect the health of persons served by the public
water system.
6. EPA has received information that levels of coliform bacterii
in excess of the maximum contaminant level (MCL) permitted by lav
(see 40 C.F.R. §141.14) have been detected in seven of the twelve
required monthly samples collected in 1965 pursuant to 40 c.F.R.
§141.21(b). Individual samples have indicated coliform levels as
high as 90 times the MCL. Respondent violated 40 C.F.R. §141.14-
by exceeding the MCL for coliform bacteria for at least the fol-
lowing 6 (six) quarterly compliance periods: October, 19S7
through December, 1987; April, 1988 through June, 1988; January,
1989 through March, 1989; April, 1989 through June, 1989; Juiv*
1989 through September, 1989; and October, 1989 through December,
1989. In addition, EPA has received information that high levels
of fecal coliform—up to greater than 16 coliforms per 100 ml,
the highest amount detectable by the analytical test method
used—have been detected in several water samples taken froa the
water system. Supplemental sampling performed in December 1983
by the U.S. Indian Health Service (IHS) has indicated that the
colifona contamination is widespread throughout the distribution
system. EPA has determined that the presence of coliforms, and
in particular, fecal coliforms in drinking water, is a serious
health concern. The presence of these bacteria indicate that the
water Bay be.contaminated with organisms that present a known
potential for causing waterbome diseases.
9. Water systea sanitary survey inspections conducted by SPA or.
November 30, 1987 and December 8, 1988, and site visits conducted
by EPA and IBS on November 21, 1989, December 21, 1989 and
February 15, 1990, revealed numerous deficiencies in Respondent's
public vater system. Based on these reviews, EPA has concluded
that the system's deficiencies, which include, inter alia. inade-
quate maintenance of, and failure to continuously use, the
chlorination system; lack of routine upkeep and maintenance of
the distribution systea; failure to correct cross-connections in
3
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the distribution systea; lack of routine upkeep tni m&intenanzt
of the wellhead and pumphouse; and a deteriorating tnd insuffi-
ciently protected water storage tank; continue to exist and have
not been corrected.
10. The presence of these contaminants in Respondent's public
water system, i.e., colifora greatly in excess of the applicable
KCL, and high level* of fecal colifora, present an imminent and
substantial endangeraent to the health of persons because the
water supplied by Respondent is subject to immediate use and con-
sumption by Upper Lake Hardisty residents and their guests. The
endangerment posed is substantial because of the knovn potential
for vaterborne disease these contaainants present. EPA believes
that based on the lack of proper operation and maintenance and
the physical deficiencies of the system, the violations of the
bacteriological HCL and the presence of fecal colifora in the
water supply will continue'unless action is taken.
11. 40 C.F.R. 5141.21(d) requires that when colifora bacteria in'
a single sample exceed certain levels (four per 100 milliliters
in the Membrane Filter Test, or three or more 10 milliliter por-
tions of a five-tube Multiple Tube Fermentation test) that at
least two consecutive daily check samples be taken and analyzed
from the same sampling point, and that additional check samples
be taken daily, until two consecutive check samples show less
than one coliform bacteria, or no positive tubes.
12. Respondent violated 40 C.F.R. 5141.21(d) by failing to take
required check samples for at least the following months: April
1986, December 1987, June 1988, January 1989, May 1989, June
1989, August 1989, October 1989 and November 1989.
13. 40 C.F.R. §141.36 (1988} contains the public notification
requirements that public water systems were required to meet un-
til April 28, 1989. 40 C.F.R. 1141.36 required suppliers of
vater who own or operate community vater systems to provide
notice to both.the public and to vater system users whenever the
system fails to comply with an applicable maximum contaminant
level established in Subpart B or G, and required notice to b«
provided to vater system users, inter alia. whenever the system
fails to comply with an applicable testing procedure established
in Subpart C or fails to perform any required monitoring.
note: Findings 11 & 12 are not necessary to siP?nltead they
of an " imminent and substantial endangernent . J^ead, they
refer strictly to violations and would be more suitable in a
Section 1414 order.
4
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Docket r,i. PVS-IA"-?:-;
14. Respondent violated 40 C.F.R. (141.36 by failing tc notiiy
the public and water system users that it failed to comply
the provisions of 40 C.F.R. Part 141, Subpart B (KCLs), as sat
forth in paragraph 8.
Based on the foregoing, I hereby find that contaminants are
present in or are likely to enter Respondent's public water sve-
tea and aay present an imminent and substantial endangerment tc
the health of persons. State authorities do not have jurisdic-
tion to act to protect the health of such persons and the locs.1
authorities have failed to act.
oases
Pursuant to the authority granted to EPA by Section 1431(a)(1) of
the SDWA, I KZRE5Y ORDER:
¦OTICB OT iyrtKTIOW TO COMPLY
1. within five (5) business days of the effective date of
this Order, Respondent shall inform EPA, in writing, of its in-
tention to comply, end a general statement of the methods it vill
use to comply, with each of the elements of this Order.
gTOLIC MOTITICXTIOH
2. Within ten (10) days of the effective date of this Or-
der, and every thirty (30) days thereafter, Respondent shall ad-
vise all customers of the past year's history of KCL violations
and of the presence of fecal coliform in the water supply, and
shall sail or personally deliver a copy of the enclosed public
notification, without additions or deletions, to every customer's
billing address. A certification that this task has been com-
pleted shall be sent toZPA within one (l) day of Bailing or
delivery, as the case Bay be.
mc»o:.ioioqiCM. ccotlimict
3. Respondent shall comply within thirty (30) days from the
effective date of this Order amd at all tiaes thereafter with
the requirements of 40 C.F.R. 1141.14 by Beeting the MCLe set
for eolifor* bacteria. If this cannot be achieved, an alternate
source of approved water for huaan consumption Bust be provided
within thirty (30) days of the effective date of this order to
all customers served by the systea in sufficient quantity for all
5
-------
»orxei r.t. ?S'£-Ln: -r: -: i:
reasonable doaestric uses. The custoaer shall not be require! ir
pay an up-front fee in order to obtain the alternate source zi
water for huaan consuaption, which shall b« in the fora of
bottled water, or one or aore tank trucks of water froa en as-
proved potable water source. Bottled or bulk water shall be"of
sufficient quality to coaply with the National Priaary Drinking
Water Regulations, 40 C.F.R. Part 141, and shall be provided in t
location and in a Banner convenient to consuaers. If an alter-
nate source of water for huaan consuaption is provided, Respon-
dent Bust continue to provide the alternate source of potable
water until such tiae as Z?A Region IX certifies in writing that
the primary water supply available to the consuaers of the ULHevs
consistently aeets the quality standards of the National Priaarv
Drinking Water Regulations, 40 C.F.R. Part 141.
COLITORM MONITORING
4. Commencing upon the effective date of this Order, in ad-
dition to aeeting the aicrobiological saapling and analytical re-
quireaents of 40 C.F.R. 5141.21(b) and 40 C.F.R. 5141.21(d),
Respondent shall be required to saapls and test twice each month
(approximately once every two weeks) at representative points in
the distribution systea, for total colifora. Respondent shall
arrange with the testing laboratory so that all samples taken
(regular, check samples and suppleaentary saaples) which test
positive at any level for total colifora shall be further tested
for the presence of fecal colifora.
5. Respondent shall immediately coaply upon the effective
date of this Order and at all tiaes thereafter with the require-
»ents of 40 C.F.R. {141.31(a) and report to the CPA the results
of aonitoring and analysis of water saaples within the first ten
(10) days following the aonth in which the result is received or
within the first ten (10) days following the end of the required
aonitoring period, whichever is sooner. Any aonitoring and
analysis results which indicate the presence of total colifora
and/or fecal colifora shall be reported to EPA within 48 hours of
the test results being received.
CTLOBIN>TIOM m CHLORINE R18IDUXL MOKITORIMO
6. Within 10 days of receipt of this Finding and Order
Respondent shall begin oparating the disinfeetion/chlorination
systea to an extent sufficient to aeet a chlorine residual of at
least 0.5 *g/l throughout tha distribution system. Saaples for
6
-------
Z>z>zkez nc . ?ws-Za: -? :-nr
chlorine residual Analysis shall b« taker, every week s.z at leas-
two representative paints in the distribution syeter. Respondent
shall report the results of the chlorine residual analyses to E?>.
immediately upon receipt.
PLAM 8OTMITTXL
7. a) Respondent shall submit within thirty (30) days
from the effective date of this Order a plan to achieve the re-
quirements set forth in paragraphs 3, 4, 5 and 6 of this Order.
The pi'ar. shall be submitted to the address listed in paragraph i:
of this Order.
b) Suggestions for plan preparation:
The plan to be submitted shall include a list of actions,
that will be conpleted setting forth the specific dates on which
the actions will be complete. The plan shall also include ac-
tions that will temporarily eliminate problems while a long-terr
solution is being assessed. Respondent shall .list in the plan
remedial actions such as: disinfection of the well (if
applicable), disinfection of the pump and distribution system,
disinfection of the storage tank, flushing of various units in
the system, installation of a back-flow prevention system and
various methods of chlorination, such as hand chlorination and
direct in-line injection. The plan could include a change of
*_uter sources, or remediation of the current water source, to
eliminate contamination coming from the source. The plan could
include replacement or refurbishment of parts or all of the dis-
tribution system,including pipes, appurtenances, and any water
storage facilities. The plan should include an operations and
maintenance schedule for the water system, and a plan for financ-
ing needed improvements, operations and maintenance, and routine
monitoring required of the system. The plan should also include
dates for the purchase and installation of equipment and arrange-
ments with analytical laboratories and consulting firms.
PBgR KOTiriCATIOW
8. Respondent shall comply immediately upon the effective
date of this Order and at all times thereafter with the public
notification requirements of 40 C.F.R. 1141.32* by providing
timely notice to persons served by the system whenever the system
fails to comply with an applicable MCL, fails to comply with a
required treatment technique, fails to perform monitoring re-
7
-------
L^cKe- r.z ¦ F»r-ilAC--r*--C LC
quired by the Art :r fails tc comply v.zi. tr. tpp-.cti.t. testir.r
procedure. Sucr. notice shall meet all the requirement! si i:
C.F.R. SKI.22. k Copies of all audi notices shall b« submitted tc
the EPA at the a'ddress listsd in paragraph 10 of this Order.
*The revised public notification requirement*, codified tt
*0 C.F.R. (141.32, becaae effective on April 28, 1989. See Si
Ted. Reg. <1546 (Oct. 28, 1987). The public notification re-
quirements at 40 C.F.R. $141.32 superseded and replaced the
public notification requirements at 40 C.F.R. §141.36.
ml ores* moriragvrs
9. Icaediately upon receipt of this Order ar.d at all times
thereafter Respondent shall comply with all other applicable re-
quirements of the SDWA and the regulations promulgated thereur.ier
(40 C.F.R. Parts 141 and 142).
M>PFtfg»g K>P fTBKinW
10. All submittals required by this Order shall be nailed
to the following address:
U.S. EPA, Region IX
Hater Management Division
1235 Mission Street
San Francisco, CA 94103
Attn: Barry PollocJc W-6-1
(PWS-EAO-90-013)
8
-------
3" r. e i r.c
GSKSRAL PSOVISTONg
1. This Order does not constitute a waiver, suspension cr
¦odification of the requirements of 40 C.F.R. S141.14, £141.2:,
§141.31, 5141.32 or of the Safe Drinking Water Act and any of tie
regulations promulgated thereunder, which remain in full force
and effect. Issuance of this Order is not an election by e?a t=
forego any civil or criainal action otherwise authorised*under
the SDWA.
2. Violation of any term of this Order, or failure or
refusal to comply with this Order, Bay subject Respondent to a
civil penalty of up to 55,ooo per day per violation for each such
day in which a violation occurs as assessed by an appropriate
United States district court under Section 1431(b) of the SDWA,
42 U.S.C. §300i (b).
3. This Order shall be effective upon receipt. This Order
shall remain in effect until there have been nine (9) consecutive
months of compliance with the Order, the Safe Drinking Water Act
and all the regulations promulgated thereunder.
i •?
Dated this 2J_ day of February, 1990.
if' r r t- I
William M. Thurston, Acting Chief
Drinking Water and Groundwater
Protection Branch
U.S. EPA, Region IX
9
-------
?.£• "Jpoer Lakc ?cz.z Wat.er hsszz.z-Lz:
Upper Laxe Hardis~y Cssaunity wa-er iys~ez
Emergency Aisinis-rative Order Dscr.ei ric-. ?ws-la;--s;
I certify that ~ie fsregaing Eaerger.ry k±tir.istra^ive 2rder
vas sen- this day in "_ie fallowing tanner to the be lev addresstt:
Original by Certified Mail Mr. Delvin Holder
p 841 395 339 Upper LaXe Pons Water ^ssociazicr.
Return Receipt Requested POB <05
Upper Lake, CA 95485
espy by Certified Mail Mrs. Phyllis Harden
? 841 396 386 Acting Tribal vice-Chair?ers = r.
Upper Lake 3and of ?sa= Ir.diar.s
POB 245272
Sacramento, CA 95S24
Copy by Regular Mail Mr. Kir* Dooley
Indian Health Service
IKS UJciah Field Office
169 Mason Street, Suite 4 00
Ukiah, CA 95482
Cocy by Regular Mail Ms. Leedesta
DHUD/OIP
450 Golden Gate Avenue, Roor 7425
POB 36003
94102-3446
Dated:
&. r.r^U
Barry F. Pollocic
Environmental Engineer
Region 9
-------
"jpper lonaur.i.y Wacer _er
lier^e-rj .-.^..r._=~rj.^ive -rser Do cue:. K;. "»' = -]
T =e~irj' v.:: " = Czrez: Esergenry
Mc.z .".i.nd itL:vi^s; r^iis i»y i; "ir.t btiov i.ddres&&c:
Kr. Delvir.
Upp«r L&xt
POB 4C5
Upper
Pci: »iier
«~ • >7 -7
Dates: -•*'¦. - ¦*; *>-
/a
Barry 7. Pciioch
Environner.rui Enrinee
Reg ior. 9
-------
y.oiit. Se
XTTACEXZK
tr -
JUf is m
crBTTfl^P MAIL ? 6S,e -t: it ¦
RETURN RSCgTPT prjUESTED
Lynn H. Stinsor.
Modesto Toyota
4<01 HcHenry Avenua
Kodesto, CA 953S6
Sat Adninistrative Order
Docket Ho. UIC AO-CASi-02
Dear Kr. Stinson:
The U. S. Environmental Protection Agency hereby isBues tc
Modesto Toyota the enclosed Administrative Order pursuant ts
Bastion 1431 of the sat* Drinking .Water Act, 42 S.c. su^ic:*.
3001(a).
If you have any questions regarding this matter, please
contact either Laslia Ann Higgins, Compliance and Enforcement
Officer, at (415) 744-1833 or have your attorney contact Laurie
Kermish, Assistant Regional Counsel", at (415) 744-1344.
Enclosure
cc: CA Departoent of Health Bervices, ofrice ot Drinxing Hater
CA Department ot Health Services, Hazardous Waste
Materials Division
central Valley Rational Hater Quality Control Board
Stanislaus County, Hazardous Materials Division
Sincerely,
fitevs Pardiap):
DrinXing water
fitevs Pardiap)cf Chief
DrinXing water and Ground Mater
Protection Branch
rnntti »i
-------
Lt. r:-:r yj-.TZZr.
Modest© Toyoti
44 01 McHenry Avt.
Modesto, CA 95356
Proceedings under Se-r;.
1431(a)(1) ot the Stft
DrinXing Water»Act,
42 U.8.C. J 3001(a)(1)
FINDING OT IMMINENT AK:
3USSTANTIAL
r: THI :>r ?r?-sos;
adxi k i s* trat r vi opj^r:.
STATUTORY AtTTHORTTV
The following Findings are made and order issued -under the
authority vested in the Administrator of the U.S. Environmental
Protection Agency ("SPA") by g 1431(a) or the safe Drinking Kater
Act ("the Act"), 42 u.s.C. S 300i(a). The authority to take
these Bctiona has bean duly redelegated to the undersigned chisf,
DrinXing Water and Ground water protection Branch, water Manage-
aent Division, Region ZX.
DESCRIPTION or RESPONDENT
1. Modesto Toyota ("Respondent"), is a corporation or-
gardzed under the lavs of'California, is authorized to do isusi-
ness in the State of California and is therefore a person within
the meaning of § 1401(12) of the Act, 42 U.S.C. S J00f(l2).
2. Respondent owns and operates a septic system well ("the
veil"), used for disposal of automotive eervioe-relatad waste
fluids, located at 4401 McHenry Ave, Modesto, CA. A septic
systea well is defined as a Class V injection veil under
40 C.r.R. s 144.5(e)(9). see also 40 C.P.R. SS 144.3 and 146.3.
1
-------
^tspcniert 6 ve._l hi; L J!! Z7L : L
specibc tn: ss::. it ;t fiuii _ re. ~ - fc : -.m :
vel-.
t. Tht re*ul~6 c£ tht. sacpie revtt^: Lfvt.f r:
tetrarhicroatkylane 7 0,000 tines the Mairinur Cantecmtn- i^evt.s
(HCLs) of 5 ug/1 arid xylenes 310,000 tiaes the MCL* :: io sg.'l.
The HCLs for tetrachioroethylene and xylene* tri codifiei t~ 5~
Ped. Reg. 3526 (January 30, 1991) . Tetrachloroetr.yiene tni
xylenes ar« contaainants as defined ir. 53KA t HCI'S).
<2 U.S.C. E 300?(€).
5. High levels of tetrachloroetnyier.e and xylenes ir. =r:nK-
ing water have been linked to adverae htalth effectc:
a. Totrachloroethylene is categorised as t prcbtble
human carcinogen. EPA has determined that s con-
centration of tetrachioroethylene of 0.7 ug/i in
drinking veter corresponds to e 10"6 excess
lifetime cancer risX estimate.
b. High levels of xylenes can cause daaage to a
person's liver, X.idney and nervous systen. The
EPA Health Advisory for xylenes ic 10 3g/l.
6. The presence of other contaminants in addition to those
reported is a reasonable possibility. Ttia very high levels of
rylenea eontaaination in the samples intarfara with the analysis
of other contaainanta that are likely to be present. Because the
samples vera heavily contaminated, high sattple dilutions were
necessary.
2
-------
zivLl pent-.-;.' r.rt -: exrae; r5 ::•: ;rr c» r" ' 1
visit-is.-, scaurs -r it: ure =3npLy son-muts pursue.—
[ 14 21 Ct; :: £3v:;. s; j ir ti
o: cncisnoni *r..;r. r>rtr. visit-* cr.ii or&e.r tni tr.y re~uLr«Ben"iE
or Celircrr.ie ' f unierfrovyii -iar. prprrt: r.i; r ~^_r.t
rttponder.' t; Aiiinont- civil penalty liability of u: -= S2S, co;
p«r day pu.rsue.r.r :: • H2Z or tha SDWA., <2 U. S, c. 5 300h-2.
ETI5522S]L^m
C7, T.~ is Crier sr.e.11 bt elective upsr. restip- by Vesper.-
dent.
Dated this /^ day Tune, 15S1.
,4
Steve^Pardiecfcf /Zhiaf
Drinking Water and Ground Water Protection Branch
U.S. Environaental Protection Agency, Region IX
-------
iszz lzz ;r:t: - ?r£r ;.:;r:L:
invrir:s- urrecula-e; c-i^tiintiu "*
(O
>
r^TVSNS? Fry^"rTrT
sr. STTSIPSISZS, I>c
C/O V-a-rrrare- Black
St. Mar"/, .Montana 39417
-jr.car vie emergency pcvers: c- c
3,~;_-y of ~^v' ¦¦' "(cy^a"
Prz~s~xcr. Agency ir. :• 1431 cf
"ire S-^re r^rin^inc Vferer Acr.
42 ".S.C. Seedier. ]00_ ; = }
Dear St. Ye^r/ Enterprises, Inc.:
The AAninistratcr of the rr.virtrmental Prelection Agency (the
Actinistrator) is ir. receipt, of Liformati.cn that a contaminant is present
in a public water system in St. Mary, Montana and that the c0rrta.Tt.n2nt
may preset ar. imminent and substantial endangerment to the health cf
persons in the area. Under the authority granted in Section 1431 of the
Safe Drinking Water Act (th~ Act.) &2 U.S.C. Section 300i(a), the
Adrdriistrator, upon receipt, of such information as that outlined abeve,
nav taxe such actions and issue such QREE3S as ray te recessary to protect,
the health of persons who are cr* nay be users cf such public -"atsr r/stars
containing the conta.tinant.
Benzene is a contaminant as defined in the Act and a principal
ccrpcnent of Gasoline. It has been detected in. unnaturally large quantities
in a public 'water system in the i-Trodiata vicinity of your underground
gasoline storage tan)cs. Cn the basis of information available to us, ve
have reason to believe that leaxage fran underground gasoline storage
tanx* such as'those owned and operated by ycu nay be the cause of this ber_ier.e
infiltraticn. Accordingly, the enclosed ORDER is issued under the
above cited authority.
Any person who willfully violates cr fails cr refuses to ccnpiy with
any 0RDE3 issued under the above cited authority rray, in an action brougr.
in the aprrpriate United States district aourt to enforce such OfOLR, be
f i ve—thou sand dollars ($5,000.00) for each day in which such violation
oioirs or failure to ccrply continues.
-------
3 IsCkfeet. Rsssrvsiior*.
c/o Mr. PHilLic Z. ?cv , Esc.Lire
P.O. 3ox S49
3r owning, MT 5 ?417
State cf Montar.a
Water CXiaiiry 3ureau
Cogsweli Bcildinc
Helena, 5^520
ATTN: Steve Pilcr.er
Jcrn Wardell, Director
Hcr.-ca.-ia C©eratior.s Office
Envirtxnentil Pr^tecticn Aoency
Federal Office 3uildi_"ig Dra%«™r ICC96
301 So. ?azx
Helena, MT 39626-0026
Alar. Momssey, Attorney
U.3. Er.virtir.HT.tal Protection Aoerrv
401 M Street, SM
V&shington, EC 20460
Nancy Werrt?«ort^i
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
-------
IN
c
W 1 '
c**", u',;v -vr-:?.?p.i£ic
IMZRGINCADMIN'ISTPATI"I
Pro:
eedi
w S ^
Sect
i
14 21 ! i, cf
rS w % _
W * ~ s r .-.Z-
42 y
. s. c
. Section 200i
The fcll-wir.c Findir.cs of ~=:« rr.ade ar.d this
ORDIR is issued
Section 14211a)
Act), 42 U.S.C.
pursuant, tc authori
of the 51 :s Drir.-cin
Section 200i(a). to
g Water Act (the
the Admr. istrn::
of -he United States Er.viror.nentaI Prstection Acer.cv
(hersir.after "I?A"). This authority has been delegated
to the Director of the Water Management Division,
Recior. VIII.
FISDINC-5 0? FACT
1. St. Mary Enterprises, Incorporated (a private
:ion-I:-.cl£an corporation) owns and operates a business in
St. Mary, Montana which includes, but is not limited to.
several gasoline stations.
2. St. Mary is in Glacier County, Montana,
on the Blacfcfeet Reservation.
-------
Marry rf :nese :1.1ks are 1 cCited jp-rrii.tr.-.
cf i'.ip 's Beer 3arder., which is jus: eist of Iiv.ie
CreeV. vhich rur.s north - south through the ire;..
5. The flow cf 7 r cr- r. d water ir. the ire= e~st rf
Divide Crees is reneraliy from east to west.
£ . >*ir ' s Beer C <1 r d ?: s a public water systerr
within the r.eir.:n: cf Section 1401(4) of the Safe
Drinking Water Act, 42 L'. S . C . Section 300f(4).
Kip's 3eer "arte" is located immediately dew 7.-
sradier.t cf the gasoline tanks ir. question.
2. The analysis of samples taken from the well
serv;r. ~ Kip's Beer Carder, revealed high levels cf ie-ce:
Sar.ole date ser.cene concentration
N'ove.ioer 15, 1952 0.72 mg/1
February 24, 19S4 3.5 mg/1
9. Ber.zene is a contaminant within the r.eanmg t
Section 1401(5) of the Act, 42 U.3.C. Section 300f{=),
and a principal component cf gasoline. The EPA
Offic° of Drinking Water has issued a "health effects
advisory for benzene cf 0.23 mg/1 for 10 day exposure
and 0.07 mg/1 for long term exposure. Exposure to
¦benzene has teen closely linked to leukemia in hunar.s .
-------
1 - i £ i s u s z e r t e d rr.utacsr. c t u £ i r. r : r. i r. c t _ *
Lr.iz--z.--.or. zlzlz^z cf :rinsr.:s j _rr tc sue?e:.e.r.-.
genera .s cf affected cenes and chromosomes'; and £.
mitotiu ociscr. (affectinc ths Drocess of cell division
Benzene can affect the central nervous system ar.d cause
respiratory failure, circulatory collapse, and at nic-
coses, death. The toxicity of benzene may be influenced
by interact!or. wit'r. chlcri.iated hydrocarbons . For the
maximum protection of human health fror. the potential
carcinogenic effects due to exposure of benzene, the
ambient water concentration should be zero. I?.-.'s
Water Quality Criteria document for benzene states that
under certain conditions, a concentration ci benzene cf
0.6c mg/l would be expected to result in an increase of
one additional case cf cancer per one million people.
10. The State cf Montana has taken no action
on this matter because it lacks jurisdiction over
these facilities on the Elackfeet Reservation.
11. The Blackfeet Reservation Tribal Council, as the
local governing authority has not taken action on this
matter.
DETERMINATION
On the basis of the FINDINGS OF FACT recited above,
EPA has reason to believe: that the handling and storage of
gasoline on St. Mary Enterprises' property have given rise
to conditions which may present imminent and substantial
endangerment to the health of persons;
-------
s • © ~ £ V 5 ^ 2 .T. i S L 7 g j " • T. 6 L T. C- 7 7 -"" * .
z l £ z — _ r. - cr. ir.s £-. y. — r '•* ^r. cor.ro"* " 1
mc z'r.dz a.Tiei^cra" icr. of -he siiuiiior. :i: be icr.-evt:
oy izsr.ZL f y:. r. g the gasoline tar.r.s - c_rt lear.ir.g sr.
i - a - a plan car. be d e ve icped to contain and t _ e =. r. ut
c o n t a m i r. a 11 c r. c f «,ell£ scotlvinc the cu c _ i c - l ~ ^ r
systems . Alt'-ouch I?>. aeiieves that the up-gradier.t tar.'.:e t'r.e
following actior.5
I. Immediately ma'xe arrangements with a profession!;
tar.'* testing company to have ail gasoline tanks and
associated dispersing lines operated by St. Mary
Enterprises, in the St. Mary community, pressure tested
in accordance with National ?i:e Protection Association
standard 329-1983, Underground Leakage cf Flammable ar.t
Combustible Licuids, and
-------
7*r. t. " *. "jcti .* r
CiZirl® -f cs t€ rt.r.r i _ * ;; - ^ * * *
per r.our and sr.^.L :ir.e. _r."
account the following factors:
Tr.s ~r:$£ volume cntr.ae ir. i rivtr.
period cf timer
The temperature chtr.rt of tht
during that sane tint period; e.r.d.
The movement of tan>: ends £s
pressure is increased.
B. Contact Williarr. Z. Encle of the EPA Montana
Operations Cffics \40£! 449-5-114, before the c.rtu=.l
testing is-ror.durtecT
"C. 5us"it to EPA at:
Environmental Protection Agency
Montana Operations Office
Federal Office Building, Orawer 1009s
301 South Par)c
Helena, Montana 59626-0026
Attention: William E. Encle
the results of such testing within twer.tv-fouv {241
hour's of its actual receipt or notice of its contents.
D. However, no event shall any cf -.e abcve
cited itsr.s be ccr.pleted later than thirty (3C; days
after.the effective date of this Order.
nay DoasiSh, Director
W^ter Management Division
Region VIII
-------
--rr. . :": -til: ill;- ijs ' t r \ ;.ttr. ._.
;;v:i peniity r.cz tc ex=ae: -Z ::•: tzr ti:: it;-
•.•iciatisr o-~«rt -r li-iure -r sanpLy continues pursuer.-; •_:
[ ICS! ft; - - tM S3W. i,; -J.i.Z. i :vc^;z] ¦ ir. t
or emissions vr..~:. oz~zr. viciett t£i« order e.ni try reqviresen-E
of Ce.iiic~.i.e.' f '~~icr~3'^rsi senior. prr-rrrz r_t ;• r ^;e.=^
rttpsnder^ as.:, it:, ant. civ;.! penalty liability of up t: S2I,oo:
per day pursuant ~c t Kzs a; -ha sdwa, <2 u.s.c. I 300h-2.
KiTcsgrrsg-am
-7, Tr.l s crier Ene.lL bt tiiectivc upsr. rt=tip" zy £esp".-
dent.
Dated tiiis
A
!
st«ve~?ard£~ec);,'' ,Chief
Drinking Water and Ground Water Protection Branch
U.S. 2nvironaental Protection Agency, Region IX
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zzr.ziLr.z r.: eser-i-'- ^
c 1 pooriv-flcrz*£ bi-" and t Lt\q-zz-z.tL~\~z ttni v.zs. itnrcr
of course sani er.i irtvel. C.\is atxes soils paraeahie ind iliov:
oor.tasinanted fluids to cigrate ir.tr "t upptrcoet "Jniergrouni
Source or Drinking water (USDWJ..
6. The City or Modesto relies solely on ground water icr
its drinking water supplies. The uppemost USDW range* in depths
between 30 to 600 feet below ground surface. Out to & puspins
depression that has existed since 1952, ground water flows fror
all sides coward the center of the City of Modesto, except south
-! the Tuolocne River where it flows froa the unconfined aquifer
toward the river.
9. At least three water supply well* are located within a
one-mile radius of the Respondent's well. These water supply
wells range in depth from 110 to 500 feat. All three draw ground
water fros the uppermost USDW.
10. The aquifer utilised by the water supply wells contains
leas than 10,coo og/l TDS and 1b utilised as a source of drinJcing
water. This aquifer is a USDW within the neaning of regulations
promulgated pursuant to the SDWA at 4 0 C.F.R. IS 144.3 and 14 6.3.
11. Based upon the data received and analyses by EPA'a
laboratory and toxicologist, EPA finds that contaminants are
likely to b* present in e usdw that may present an inainent and
substantial endangeraent to the health of persons.
3
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. a?a r.ts ccnsulted with tr.r : i ^epir^rer.-. i;
Health Services, Surveillance and Sr.forcenent Section; -tlilorr.-i.
Departaent cf Health Services, CaIiforr.it Office zi -r^r-j-.^r.r
Water; Central Velley California Regional Water Sutlity ^or.zrc.
Board; and vith Stanislaus County, Hazardous Waste Httent_s
Division to confirm the correctness ef the infcrsation and to ts-
certain the action* such authorities are or vill be tafcir.? vith
regard to the Respondent's activities.
13. Ko govemaental action has been taken to date to
protect the health of persona froa ccntisinantE that art likely
to be present in a U5DW.
14. The Drinking Mater and Ground Water Protection Branch
Chief therefore finds that the actions described belov are
authorized under Section 1431 of the SDWA, 42 TJ.S.C. j300i, and
are necessary in order to protect the health of persons.
ORDKR
15. Based upon the foregoing facts and findings, taking
into account the iaminent and substantial endangeraer.t to the
health of persons and under authority of section 14 31 of the
SDWA, 42 U.S.C. §300i, X hereby order compliance vith the follow-
ing provisions:
CBA88 rHJgCTIOW
IS. To prevent the continued endangerment of USDWs and to
protect the health of persons Respondent shall:
4
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. Zrk r.as rsnsulred vith ~r.c 3epi.rtse.r.- :.:
Heftir_r. service*, Surveillance and Er.Sorcenent 3 act i or.; Ctiiiorr..!.
Deperzaw. =i Health Services, Caii2srr.it Offi=t zi
Mater; Central Valley California Regional Water 7-J.L ity cor.rrc.
Board; and with Stanislaus County, Hazardous waste Xateriais
Division to confirm the correctness c: tat infcrattion and tc tt-
certain the action* such authorities are or vill be tafcir.y vith
regard t-o the Respondent's activities.
13. Ko governmental action has been taken to date to
protest the health of persona from contaminants that arc Likely
to be present in a USDW.
14. The Drinking Water and Ground Water Protection Branch
Chief therefore finds that the actions described belov are
authorized under Section 1431 of the SUVA, 42 U.5.C. {3001, and
are necessary in order to protect the health of persons.
OftPgft
15. Based upon the foregoing facts and findings, taKing
into account the imminent and substantial endangeraent to the
health of persons and under authority of section 1431 of the
SDWA, 42 U.S.C. {3001, I hereby order compliance vith the follow-
ing previsions:
fiSMt IWISTIW
is. To prevent the continued endangeraent of USDWs and to
protect the health of persons Respondent shall:
4
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c c. •. s c fc " . r' r .r. .. :r ' - - - , ..
~/I- - - -ri._.'L£ *'z.z:. ~lz^: L.w, -jivtr vts- . •
£rtir. mtc thfe vt— 1;.-tr" ci_~._~i.r^
sni
provide EP*> with written certificEtior. v:v.;r. ; •
hour* or the effective ittc rf chit oritur W.c:
•the injections specified in pira9rs.pr. i£.t. h»ve
ceased (See Paragraph 3 0).
TOUK PW
17. within thirty (30) days of the errective date this
Order, Respondent shall eubcit for £?A's approval and upon ap-
proval shall impleaent a work Plan covering each or the following
element* of the order.
IB. if EPA disapproves the Respondent's wor)c Plan re^-ired
by paragraph 17, the Respondent shall su&mit a new worX Plan in-
corporating EPA's conments and instruction* within t»r. (10) days
of receiving notice that the WorK Plan is unacceptable,
19. Upon approval by e?a, the WorK Plan shall be daeaed in-
corporated into this Order as if fully set forth herein.
TEMPORAL CLOStrftg
20. Identity *"*e locations of all drains, drain lines,
skimps, and septic systems at the facility.
21. Outline a plan for taking representative samples from
the liquid and sludge phases present in the drains, drain lines,
sumps, and the septic tanX in accordance with the procedures
described in 40 c.r.K. Fart 251 Appendix I "Representative sam-
pling Methods". Samples shall be analysed by a laboratory
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Zrr : :r vc-ttilt
the E«c-i3iE :=r tne Zsxxcizy zsitrtcztrirzi: LAtz:.„r.z yrozt -
cure (TCLP; ir. <: c.~.?.. ?trt 261 Appenii): II tt d-sir.i&i Junt :•¦•
199c. Copie* o2 til sampling results. shall b* sent tc E?j..
Z2. The results of the sample analyses Ktie.ll. determine ~r.c
method of disposal for the liquid and kludge in die drains, drtir
lines, simps, and the septic tanX. If analyse* of samples fret
either the liquid or sludge shov that the contents are RCRA ht:-
ardoue waste, then the Respondent shall dispose of the hazardous
vaste in accordance with federal, State and local lavs including,
but not limited to following the requirements of 40 c.r.R. Part
262, using a licensed hauler operating in accordance with 40
C.F.R. Part 263 and transporting the waste to an approved RCRA
treataent, storage or disposal facility authorised under 4 0
C.r.R. Parts 264 or 265. if analyses of the samples froa either
the liguid or sludge show that the contents are nonharardous
waste, then the Respondent shall dispose of the waste in accor-
dance with Federal, State and local law.
23. Describe the removal of the contents from the drains,
drain line*, sumps o-.a septic tank and the appropriate disposal
methods to be used based on the results of the sample analyses.
The Respondent is ultimately responsible for proper disposal of
all wastes, and should carefully review all arrangements for dis-
posal to ensure compliance with Federal, State and local lav.
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; . ' r . - r.e -r: r: . * . r r .... ; - ...
-er-.e: Zrzz t_r.« tni hov the irtir.E s.nc. trur. iL'er
pressure wa«a«d, iilied, and persinar.^^.;¦ t'ttLe.;. !*.„ « tr~ t ;
nested vith clesr.ir.r tht firtint tr.i irtir. lines sntll bt cLspss-ii
ol i." accordance vLti-. Federal, Sttte tni loctl Itve.
25. Describe hov the septic tanK contents vili £>«. resovei
and disposed of properly, The septic ten): nay continue to it
used for sanitary vasts only.
zsewTiricxTioB xwd ck^ctksizatiok or kbarbt txtzr supply tzlls
26. Determine the location and operating status or ill
public and private water supply wells located vitf.in a one niie
radius of Respondent's injection well. Tha Worfc Plan shall
provide for, Inter alia, notifying the public via one of the fol-
lowing methods that the Respondent is inventorying all water
supply wells within a one mile radius of the Respondent's well:
(1) publishing notice on seven consecutive days in a local
newspaper of general circulation, (2) mailing noticss via cer-
tified nail to all holder® cf title to real property located
vithin one mile of Respondent's well, or (3) othsr raasonable
means of notifying such title holders as approved by EPA.
Respondent's notices shall request owners or operators of such
wells 'to infora CPA and the Respondent of t-hft existence of such
wells. Respondent shall commence circulating public notice of
the veil inventory within ten (10) day* of receiving EPA's writ-
ten approval of th« Worit Plan.
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I" _r.E i z_tr. f:r >r.f: "-i—s_r :r::
vtte.r supp.y _ier.~Ltlai pursuant -r otrtrrtpr. :£. ;cr
volatile oraar.-c compounds an! tottl nettlr. T^.t v-tt.tr Eup.-i;
sampling plar. sne.1 1 include bur no- be iimitei -= prwLs.~ant ;=r
(1) quarterly sampling of all water supply wells commencing
within thirty (30) day* of receiving EPA'* written approve.! cf
the WorK Plan, (2) compliance with Stat* and lost! agency tr.d lo-
cal water supply requirements for stapling and analysing veil
water, (3) wall sampling methods, and (4) analytical a«^hods
be applied to the sample*. in developing the quarterly sesple
plan, Respondent snail rsfer to EPA Methods 302.1, 502.2, 5C1.L,
524.1 and 524.2 in "Methods for the Determination of Organic Com-
pounds in Drinking water", ORD Publications, CZRI, EPA/6004 -
8/039, December 1988 and EPA Method 200 Series in "Methods of
chemical Analysis of water and Wastes", EPA 600/4-79-020, March
1983. Quarterly sampling shall continue until euch tine that EPA
notifies Respondent in writing that sampling may be discontinued,
copies of all sampling results shall be sent to EPA.
M0NT8LY RgPORTS
28. Respondent shall submit monthly reports to EPA
documenting activities performed during the previous month pur-
suant to this Order. Reports shall describe and provide the data
from any vaaple collection, sample analysis, water level measure-
ment, engineering or geologic analysis or any other activity re-
lated to the performance of this Order. These monthly reports
are due on the second Tuesday of each month.
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g.Tg^TT E.:,::
~~,k ic-lov^nr tddtese. ¦.
Steve Pardieck, Chief
St inking Watar and Orount nt'.t: ?rr-fcr--_rr. ztltiz:
Water Management Divisisr.
U.S. Snvironoental Protecticr, Agency. Zez-zr. r:.
7,5 Hawthorn# St. (W-«-2;
San Francisco, ca 9
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rt»
¦ Tr.s zrr"-s-~~F 3; ;r:c: e.m.! :
::n::n: upcr the r.esponaenr rirf.ser? irtr.-.r
successors ana assigns. Notice of this order snail be y^ver.
ar.y successor* ir interest prior tc transfer z' tht Ct-zLl.-. : r
_t.s operation. Action or inactiar. zi any personr. iira£ , err -
tractors, employees, agents, or corporations ectin^ under,
through or for the Respondent, shall not excuse any ftilure zi
Respondent to fully perfora its obligations under thli order.
33. This Order does not constitute & waiver, suspension = r
modification of the requirements of any federal statute, regula-
tion, or condition of any pemit issued thereunder, including the
requirements of the SDKA and accompanying regulations. Issuance
of this Order is not an election by EPA to forgo any civil or any
criminal action otherwise authorized under the SDKA.
34. This order doe^not constitute a release of all claims
respecting all conditions of operation or closure/post-closure of
the vellB, nor does it necessarily establish all actions that may
be necessary to respond to conditions or otherwise close tha
veils in the event of conditions indicating the need for further
investigation, including a feasibility study, or other response
action.
35. Notwithstanding compliance with the terms of this or-
der, spa is not precluded from taxing any action authorized by
lav, including but not limited to the issuance of additional
administrative orders, and/or the initiation of judicial actions,
against Respondent. EPA expressly reserves the right to enforce
this Order through appropriate proceedings.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII
726 MINNESOTA AVENUE
KANSAS CITY, KANSAS 66101
IN THE MATTER OF:
SHALLOW WATER REFINERY
Scott City, Kansas
Carl and Jean Stiffler,
d/ b/ a Southwest Wrecking Co.,
Respondents
Proceeding under Section 303 of
the Clean Air Act,
42 U. S. C. ° 7603
The Regional Administrator for Region VII of the United States Environmental Protection
Agency makes the following findings of fact, conclusions of law and issues the following Order:
I. JURISDICTION AND GENERAL PROVISIONS
1. This Clean Air Act Emergency Order (Order) is issued by the Regional Administrator of the
United States Environmental Protection Agency, (EPA) Region VII, pursuant to the authority
vested in the Administrator of EPA by Section 303 of the Clean Air Act, (CAA) 42 U. S. C. °
7603. The Administrator of EPA delegated the CAA authority to issue such orders to the
Regional Administrators for EPA, including the Regional Administrator of EPA, Region VII.
2. This Order is issued to Carl and Jean Stiffler d/ b/ a Southwest Wrecking Company, 907
Jefferson, Scott City, Kansas.
3. Section 303 of the CAA, 42 U. S. C. 0 7603, provides in part, that upon receipt of evidence
that a pollution source or combination of sources is presenting an imminent and substantial
endangerment to public health or welfare or the environment and after consultation with
appropriate State and local authorities to confirm the accuracy of the information on which the
action proposed to be taken is based, the Administrator may issue such orders as may be
necessary to protect public health or welfare or the environment.
Docket No. VII- 97- CAA- 120
CLEAN AIR ACT SECTION 303
EMERGENCY ORDER
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4. The Regional Administrator for Region VII, EPA has determined that the emission of the air
pollutant asbestos from the Shallow Water Refiner)' is presenting an imminent and substantial
endangerment to public health or welfare or the environment.
5. This Order prohibits all reclamation and demolition by the Respondents at the Shallow Water
Refinery in order to abate an imminent and substantial endangerment to public health or welfare
or the environment.
6. EPA has consulted with the Kansas Department of Health and the Environment to confirm the
accuracy of the information on which this action is based.
7. Issuance of this Order is necessary to assure prompt protection of the public health or welfare
or the environment of Scott City, Kansas and the surrounding area and it is not
practicable to wait for the commencement of a civil action in United States District Court to
assure prompt protection.
II. PARTIES BOUND
8. This Order applies to and is binding upon Respondents and their successors and assigns. Any
change in ownership, partnership or corporate status of Respondents including, but not limited to,
any transfer of assets or real or personal property shall in no way alter Respondents'
responsibilities under this Order. Respondents shall provide a copy of this Order to any
subsequent owners or successors thereof before ownership rights or stock or assets are
transferred.
9. Not later than thirty (30) days prior to any transfer by Respondents of any interest in property
at the Shallow Water Refinery, Respondents shall notify EPA of the proposed transfer. Not later
than five (5) days after such transfer, Respondents shall submit the transfer documents to EPA.
III. FINDINGS OF FACT
10. Respondents are "persons" under Section 302( e) of the CAA, 42 U. S. C. ° 7602( e).
Respondents are doing business as "Southwest Wrecking Company", 907 Jefferson, Scott City,
Kansas. Respondent Jean Stiffler is the owner of the property where the Shallow Water Refinery
is located.
11. Respondents are currently conducting demolition activities at the Shallow Water Refinery,
located about two miles south of the city of Shallow Water, Kansas on Highway 83 (the Facility).
These activities include the demolition of friable asbestos material as defined by 40 C. F. R.0
61.141.
12. On May 28, 1997 two employees of the Kansas Department of Health and the Environment
(KDHE) inspected the Shallow Water Refinery to determine whether Respondents were
complying with the CAA and the implementing federal regulations, 40 C. F. R. Part 61, Subpart
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M, as well as Kansas asbestos regulations. During this inspection, the KDHE employees took a
video of the Facility, interviewed Respondents and took samples of asbestos containing insulation.
13. The Shallow Water Refinery is an old oil refinery that is no longer in use. Respondents are
dismantling the refinery and reclaiming the metal components. Many of these components are
covered with insulation materials that contain friable asbestos. As part of this dismantling,
Respondents have recently cut the legs off an approximately 100 foot tall tower that is called a
"cat cracker". The cat cracker is covered with asbestos containing insulation.
14. During the inspection on May 28, 1997 by KDHE, the cat cracker was lying on the ground
surrounded by large quantities of asbestos containing pipe and block insulation that were
dislodged when the cat cracker fell to the ground. This asbestos
containing insulation observed on May 28, 1997 was found to be
friable. The KDHE employees took samples of the insulation. Analysis of these samples showed
that the insulation on the ground, on piping and the cat cracker contained greater than one percent
asbestos (chrysotile, crocidolite and amosite).
15. During this inspection, Respondents Carl and Jean Stiffler, their son- in- law Robert Cole and
two small children, identified as the grandchildren of the Respondents, were observed at the site.
The children were observed playing in and around the asbestos containing insulation.
16. Asbestos is a hazardous air pollutant as listed under Section 112 of the CAA, 42 U. S. C.0
7412. Asbestos is a known human carcinogen. Inhalation of asbestos can lead to pleural and
peritoneal mesothelioma, lung cancer, asbestosis, and other diseases which are serious,
irreversible, and often fatal. Asbestos has been responsible for the premature deaths of many
persons who worked with insulation. Asbestos fibers are extremely durable and their size and
shape permit them to remain airborne for long periods of time.
17. Respondents demolition and reclamation activities at the Shallow Water Refinery site have
caused the emission of the air pollutant asbestos.
IV. CONCLUSIONS OF LAW AND DETERMINATIONS
18. Based on the Findings of Fact set forth above, the
Regional Administrator for EPA, Region VII determines that:
a. Respondents are opersonso as defined by Section 302( e) of the CAA, 42 U. S. C. °
7602( e).
b. Asbestos is a hazardous air pollutant as defined by Section 112 of the CAA, 42 U. S. C.
0 7412.
c. Respondents are causing or contributing to the emission of an air pollutant.
There is evidence that a pollution source is presenting an imminent and substantial endangerment
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to the public health or welfare or the environment because of the emission of asbestos from the
Shallow Water Refinery site and therefore, Respondents are subject to this Order pursuant to
Section 303 of the CAA, 42 U. S. C.0 7603.
The actions required by this Order are necessary to protect the public health or welfare or the
environment and are consistent with the CAA.
V. ORDER
19. The Regional Administrator for Region VII hereby orders that Respondents Carl and Jean
Stiffler, d/ b/ a Southwest Wrecking Company, and their agents, employees, and all persons in
active concert or participation with them to:
a. Cease all activities at the Shallow Water Refinery;
b. Keep all minor children outside the property;
c. Restrict all persons entering the property to persons trained and accredited under the
requirements of the Asbestos Hazard Emergency Response Act (AHERA) as "inspectors,"
"project designers," "workers" or "contractors/ supervisors" licensed by the State of
Kansas OR persons using personal protection equipment, such as respirators, and
protective clothing;
d. Keep the gate to the property closed and locked at all times;
e. Cease all disposal and removal of property from the site including all metals, waste
material, facility components and any other property other than personal effects;
f. Provide records to EPA, Region VII within 30 days of all names and addresses of all
facilities where metals have been salvaged; and,
g. Within 20 days provide to EPA, Region VII a plan developed by an AHERA certified
project designer to bring the Facility into compliance with all applicable federal and state
laws, including the National Emission Standard for Asbestos, 40 C. F. R. Part 61, Subpart
M.
20. This Order shall be effective for a period of not more than 60 days unless the United States
files a civil action in the appropriate United States District Court to immediately restrain any
person causing or contributing to the alleged pollution to stop the emission of air pollutants
causing or contributing to such pollution or take such other actions as may be necessary, in such
case, this order shall remain in effect for additional 14 days or such longer period as may be
authorized by the court in which the action is brought.
VI. ENFORCEMENT: PENALTIES FOR NONCOMPLIANCE
21. Under Section 113( a)( 3)( A) of the CAA, 42 U. S. C. ° 7413( a)( 3)( A), violation of this
Order may subject Respondents to civil administrative penalties of up to twenty- seven thousand
five hundred dollars (S 27,500) per day of violation.
22. Further, if Respondents violate this Order, EPA may also seek judicial enforcement of this
Order pursuant to Section 113( a)( 3)( C) of the CAA, 42 U. S. C.0 7413( a)( 3)( C) and may
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commence a civil action for a permanent or temporary injunction or to assess civil penalties of up
to S27,500 per day of violation or both.
23. Finally, under Section 113( a)( 3)( D) of the CAA, 42 U. S. C. 7413( a)( 3)( D), the United
States can request that the Attorney General commence a criminal action for violations of this
Order.
VII. RESERVATION OF RIGHTS
24. Nothing in this Order shall limit the power and authority of EPA or the United States to take,
direct, or order all actions necessary to protect public health or welfare or the environment to
prevent, abate or minimize an imminent and substantial endangerment at the Shallow Water
Refinery. Further, nothing herein shall be construed to prevent EPA from seeking
legal or equitable relief to enforce the terms of this Order, or
from taking other legal or equitable action as it deems appropriate and necessary, pursuant to the
CAA, and any other applicable law. Nothing herein shall be construed to prevent EPA from
requiring Respondents to perform further actions pursuant to the CAA, and any other applicable
law.
VIII. OTHER CLAIMS
25. Nothing in this Order constitutes a satisfaction of or release from any claim or cause of action
against the Respondents or any person for any liability Respondents or such person may have
under any applicable statutes or regulations, or the common law.
IX. NOTICE OF INTENT TO COMPLY
26. Within five (5) days of receipt of this Order, Respondents shall provide written notice to EPA
stating whether Respondents will comply with the terms of this Order. If Respondents do not
unequivocally commit to cease all activities at the Facility and perform the actions required by this
Order, they shall be deemed to have violated this Order and to have failed and refused to comply
with this Order.
X. EFFECTIVE DATE
27. This Order shall become effective the day it is signed by the Regional Administrator, EPA
Region VII. IT IS SO ORDERED.
BY:/s/
Dennis Grams, P. E.
Regional Administrator
DATE: 6/12/97
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Region VII
United States Environmental Protection Agency
/si DATE: 6/12/97
Julie M. Van Horn
Senior Associate Regional Counsel
Region VII
United States Environmental Protection Agency
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
In The Matter of: )
)
MINEREC MINING CHEMICALS )
)
Proceedings Pursuant to )
Section 303 of the Clean Air Act, )
As Amended, )
42 U.S.C. § 7401 et seq. )
42 U.S.C. § 7603. )
Docket No. R9-94-34
CLEAN AIR ACT
EMERGENCY ORDER
The Regional Administrator for Region IX of the United
States Environmental Protection Agency ("EPA") makes the
following Findings of Fact, reaches the following Conclusions of
Law, and Issues the following Order:
FINDINGS OF FACT
1. The Administrator of EPA delegated the authority vested
in her by Section 303 of the Clean Air Act ("the Act" or "CAA")
as amended, 42 U.S.C. § 7603, to the Regional Administrator for
Region IX.
2. Section 303 of the Act, 42 U.S.C. § 7603, provides that,
upon receipt of evidence that a pollution source or combination
of sources is presenting an imminent and substantial endangerment
to public health or welfare or the environment and after
consultation with appropriate State and local authorities to
confirm the accuracy of the information on which the action
proposed to be taken is based, the Administrator may issue such
order as may be necessary to protect public health or welfare or
the environment.
3. Respondent Minerec Mining Chemicals ("Minerec") has
discharged from its facility located at 300 E. Vamori Street in
EPA Region IX
Emergency Order
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the San Xavier Development Authority ("SXDA") industrial park
near Tucson, Arizona ("the Minerec facility") substantial amounts
of hydrogen sulfide ("H2S") and other gases into the ambient air.
Such discharges have caused numerous individuals to be
hospitalized or seek medical treatment, and further discharges of
this kind would present an imminent and substantial endangerment
to the public health or welfare or the environment.
4. Authorities from the San Xavier District of the Tohono
0'odham Nation, which has jurisdiction over the industrial park
where the Minerec facility is located, have diligently attempted
to decrease the level of contamination into the atmosphere. The
threat of further discharges from the facility remains, however.
5. It is not practicable to assure prompt protection of
public health or welfare or the environment in the San Xavier
District to await commencement of a civil action in United States
District Court.
6. On August 26, 1994, my staff and I discussed the threat
posed by Minerec's air emissions with officials from Pima County,
Arizona, with officials of the Tohono 0'odham Nation, with
officials of the San Xavier District of the Tohono O'odham
Nation, and with other local officials. All of them confirmed my
findings and supported my decision to issue this Order based upon
the risk of releases and upon their knowledge of Minerec's
operation and maintenance procedures.
CONCLUSION OF LAW
7. The Regional Administrator for Region IX is vested with
the authority of the Administrator under Section 303 of the Act,
42 U.S.C. § 7603.
EPA Region IX
Emergency Order - 2 -
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8. The Minerec facility has been found by the Regional
Administrator to be presenting an imminent and substantial'
endangerment to the public health or welfare or the environment
and to be an appropriate subject for the issuance of an order
under Section 303 of the Act.
ORDER
9. The Regional Administrator for Region IX hereby orders
that Minerec Mining Chemicals, its agents, servants, employees,
and attorneys and all persons in active concert or participation
with them to start, on August 26, 1994, a safe shutdown of all
manufacturing operations. All on-going reactions must be
terminated in the safest manner possible, and no new
manufacturing operations may begin. All operations necessary to
prevent air emissions and to maintain the integrity of chemicals
and equipment at the facility must continue. Furthermore,
Minerec must make reports by telephone by 3 p.m. each day
(including weekends) to Barbara Gross of the Regional IX office
at (415) 744-1136 on the status of shutdown efforts. This
reporting requirement shall remain in effect until the shutdown
of manufacturing operations is completed.
10. This order shall be effective for a period of not more
than 60 days unless the United States files a civil action in the
appropriate United States district court to immediately restrain
any person causing or contributing to the alleged pollution to
stop the emission of air pollutants causing or contributing to
such pollution or take such other actions as may be necessary.
11. This Order is effective immediately upon receipt by
defendants. The Regional Administrator for Region IX hereby
EPA Region IX
Emergency Order - 3 -
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issues the above-identified Order which shall become effective as
provided therein.
8/26/94 /s/
Date Felicia Marcus
Regional Administrator
EPA Region IX
Emergency Order - 4 -
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CERTIFICATE OF SERVICE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
In The Matter of:
MINEREC MINING CHEMICALS
Proceedings Pursuant to
Section 303 of the Clean Air Act,
As Amended,
42 U.S.C. § 7401 et seq.
42 U.S.C. § 7603.
Docket No.
The undersigned hereby certifies that he is an employee of
the United States Environmental Protection Agency and is a person
of such age and discretion to be competent to serve papers.
That on August 12, 1998, he served a copy of the attached
EMERGENCY ORDER by hand to the person hereinafter named, at the
places and addresses stated below.
Person:
Address:
Esteban Oyenque
EPA Region IX
Emergency Order
- 5 -
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D. C. 20460
OSWER Directive Number 9833.07
Memorandum
SUBJECT: Model Unilateral Administrative Order for Removal Response Activities
FROM: Bruce W. Diamond, Director
Office of Waste programs Enforcement
William A. White, Enforcement Counsel Superfund
Office of Enforcement
To: Addressees
Attached is EPA's final model unilateral administrative order (UAO) for removal response
activities. This model order embodies the language that EPA regional offices should use when
issuing removal UAOs.
The Regions and the various Headquarters offices provided extensive input during the
development of this model UAO. The Workgroup reviewed all drafts and submitted and reviewed
all Comments for possible inclusion in the order. The Workgroup gave particular attention to
creating a streamlined order which includes language from other model documents.
Although regional use of the model UAO is not mandatory, we believe the model order should
form the core of any removal UAO because the order represents a unified Agency position for
removal activities. We encourage all Regions to make good use of the model order.
Finally, we thank you for your participation in helping to develop this order and hope that you
find this order useful.
Attachment
Addressees: Director, Waste Management Division
Regions I, IV, v, and VII
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Director, Emergency and Remedial Response Division,
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII, and IX
Director. Hazardous Waste Division,
Region x
Director, Environmental Services Division,
Regions I, VI, VII
Regional Counsel, Regions I- X
Henry L. Longest, II, Director, Office of Emergency
and Remedial Response
Earl Salo, Assistant General Counsel, Office of General Counsel
Bruce Gelber, Deputy Chief, Environmental Enforcement Section - Lands Division
cc: Regional Superfund Branch Chiefs
Model Removal Order Workgroup
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OSWER Directive Number 9833,07
MODEL UNILATERAL ADMINISTRATIVE ORDER FOR
REMOVAL RESPONSE ACTIVITIES
DATE: March 16, 1993
This document is solely intended as guidance. It does not establish a binding norm and is not
finally determinative of the issues addressed. This document is not intended to be a synopsis of
principles of law. The policies and procedures in this guidance do not constitute a rulemaking by
the Agency, and may not be relied on to create a substantive or procedural right or benefit
enforceable at law by any person. The Agency may take action at variance with this guidance.
DIRECTIONS
Information/ sections/ language is optional is contained in brackets []. Notes, annotations and
language which require Regional specific, or site- specific variation or information are identified in
italics, parentheses (), and underlined.
Optional: The Regions may identify the various sections with either letters or numbers.
Office Of Waste Programs Enforcement Contact: Fred Zimmerman Telephone number: (703)
603- 9063
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION N u m b er
IN THE MATTER OF:
(Title of Site)
City or Town, County, State)
UNILATERAL ADMINISTRATIVE
ORDER FOR REMOVAL RESPONSE
ACTIVITIES
U. S. EPA Region CERCLA Docket No.
(Name of Respondents),
(If there are many Respondents, reference
an attached list.)
Respondent s)
Proceeding Under Section 106( a) of the
Comprehensive Environmental Response,
Compensation, and Liability Act, as amended,
42 U. S. C. §9606 (a)
TABLE OF CONTENTS
[The Table of Contents section is optional..]
I. JURISDICTION AND GENERAL PROVISIONS
This Order is issued pursuant to the authority vested in the President of the United States by
section 106( a) of the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U. S. C. §9606( a), as amended (" CERCLA"), and delegated to the Administrator of
the United States Environmental Protection Agency (" EPA") by Executive Order No. 12580,
January 23, 1987, 52 Federal Register 2923, and further delegated to the Regional Administrators
by EPA Delegation Nos. 14- 14- A and 14- 14- B [and to the (Insert Regional delegation
information if applicable)]
This Order pertains to property located at (address or descriptive Site" or the "Site". This Order
requires the Respondent s) to conduct removal, actions described herein to abate an imminent
and substantial endangerment to the public health, welfare or the environment that ray be
presented by the actual threatened release of hazardous substances at or from the Site.
EPA has notified the (State or Commonwealth of (State)) of this action pursuant to section 106(
a) of CERCLA, 42 U. S. C. §9606( a).
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II. PARTIES BOUND
This Order applies to and is binding upon Respondent s) [and Respondent 1)( s)(') heirs,
directors, officers, employees, agents, receivers, trustees], successors and assigns. (Name one or
more Of the parties identified in the brackets [] only if the party is liable because it has significant
decision- making authority, control over the day- to- day activities of the facility, or other similar
involvements.) Any change in ownership or corporate status of Respondents) including, but not
limited to, any transfer of assets or real or personal property shall in no way alter Respondent')
s( 1) responsibilities under this Order. If the Order is issued to more than one Respondent, add the
Respondent s) following: "Respondents are jointly and severally liable for carrying out all
activities required by this Order. Compliance or noncompliance by one or more Respondent s)
with any provision of this Order shall not excuse or justly noncompliance by any other
Respondents) shall ensure that (its/ their) contractors, subcontractors, and representatives
receive a copy of this Order and comply with this Order. Respondent s) shall be responsible for
any noncompliance with this Order.
III. DEFINITIONS
[This section is optional. Regions should use the definitions included in the Model RD/ RA
Consent Decree (OSWER Directive 9835.17), or the National Oil and Hazardous substances
Pollution Contingency Plan, as amended 40 C. F. R. Part 300. Regions that do not include
definitions should identify terms as necessary, e. g., business days and calendar days]
IV. FINDINGS OF FACT
(Because Findings of Fact are site- specific, no model language is under section 104 (e), EPA may
issue an order to person who may not a liable parties - see OSWER Directive Number 9833.0- a.)
Regions should make this information consistent with information environmental harm, potential
for fire or explosion, and other dangers. (Note: under limited circumstances, generally for access
e. g., expose route, risk assessment, affected populations, release may present an imminent and
substantial endangerment, releases hat exist, data showing that the release or threats of hazardous
substances are present and releases or threats of activities and investigations, conditions and data
showing categories of Respondent s) liability, past EPA and/ or State operations, site ownership,
enforcement history, general Respondent s), site location and description, site history and
including a discussion of the following points: identification of outline the basis for naming
Respondent s). Regions should logically, they should support the finding of endangerment and
provided. Facts should be presented concisely, accurately, and required in the Action
Memorandum, as set forth in the Action Memorandum Guidance, OSWER Directive Number
9360.3- 01. Regions should gather the evidence necessary to support the finding into an
administrative record. Regions should provide a brief description of the removal action being
ordered and why it is necessary to protect the public health, welfare, and the environment.)
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V. CONCLUSIONS OF LAW AND DETERMINATIONS
Based on the Findings of Fact set forth above, and the Administrative Record supporting this
removal action, EPA has determined that:
1. The (name) Site is a "facility" as defined by section 101( 9) of CERCLA, 42 U. S. C.
§9601(g).
2. The contaminants found at the Site, as identified in the Findings of Fact above, include
"hazardous substance( s)" as defined by section 101 ( 14) of CERCLA, 42 U. S. C. §9601 (
14). (Regions may list each chemical compound.)
3. Each Respondent is a "person" as defined by section 101( 21) of CERCLA, 42 U. S. C.
§9601( 21).
4. Each Respondent is liable under section 107( a) of CERCLA, 42 U. S. C. §9607( a).
[Optional: Regions may specify each category of liability under section 107. For example:
A. Respondent s) (Name/ s)) is (are) the "owner( s)" and/ or "operator( s)" of
the facility, as defined by section 101( 20) of CERCLA, 42 U. S. C.§ 9601 ( 20), and
within the meaning of section 107( a) (1) of CERCLA, 42 U. S. C. Section 9607(
a)( 1).
B. Respondent s) (Name( s)) was (were) a (the) "owner( s)" and/ or "operator(
s)" of the facility at the time of disposal of any hazardous substance described in
this section at the facility, as defined by section 101( 20) of CERCLA, 42 U. S. C.
§9601 ( 20), and within the meaning Of Section 107( a)( 2) of CERCLA, 42 U. S.
C. Section 107( a)( 2).
C. Respondent s) (flame( s)) arranged for disposal or treatment, or arranged for
transport for disposal. Or treatment of hazardous substances at the facility, by any
other party, at any facility, and within the meaning Of section 107( a)( 3) of
CERCLA, 42 U. S. C. §9607( a)( 3).
D. Respondent s) (Name( s)) accepts or accepted hazardous substances for
transport to the facility, within the meaning of section 107( a)( 4) of CERCLA, 42
U. S. C. § 9607( a)( 4).]
(If a Respondent s) is not a liable party under section 107, identify the Respondents) ar>d
modify the determinations in this paragraph as as appropriate.)
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5. The conditions described in the Findings of Fact above constitute an actual or
threatened "release" of a hazardous substance from the facility as defined by sections 101(
22) of CERCLA, 42 U. S. C. §9601 ( 22). (Regions may specify which paragraphs in the
Findings of Fact apply.)
6. The conditions present at the Site constitute an imminent and substantial endangerment
to public health, welfare, or the environment. (Factors that may be considered are set forth
in section 300.415( b) (2) of the National Oil and Hazardous substances Pollution
Contingency Plan, as amended, 40 CFR Part 300 (" NCP")).
[Optional: These factors include, but are not limited to, the following: (Include only those
which apply)
a. actual or potential exposure to nearby human populations, animals, or the food
chain from hazardous substances or pollutants or contaminants; this factor is
present at the Site due to the existence of (identify);
b. actual or potential contamination of drinking water supplies or sensitive
ecosystems; this factor is present at the Site due to the existence of (identify);
C. hazardous substances or pollutants or contaminants in drums, barrels, tanks, or
other bulk storage containers, that may pose a threat of release; this factor is
present at the Site due to the existence of (identify);
d. high levels of hazardous substances or pollutants or contaminants in soils largely
at or near the surface, that may migrate; this factor is present at the Site due to the
existence of (identify);
e. weather conditions that may cause hazardous substances or pollutants or
contaminants to migrate or be released; this factor is present at the Site due to the
existence of (identify);
f. threat of fire or explosion; this factor is present at the Site due to the existence
of (identify);
g. the unavailability of other appropriate federal or state response mechanisms to
respond to the release; this factor Supports the actions required by this Order at
the Site because (describe);
h. other situations or factors that may pose threats to 4 public health or welfare or
the environment; this factor is present at the Site due to the existence of (identify)].
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7. The actual or threatened release of hazardous substances from the Site may present an
imminent and substantial endangerment to the public health, welfare, or the environment
within the meaning of section 106( a) of CERCLA, 42 U. S. C §9606( a).
8. The removal actions required by this Order are necessary to protect the public health,
welfare, or the environment, and are not inconsistent with the NCP and CERCLA.
VI. O R D ER
Effective Date: (Insert date) (This date needs to be consistent with the effective date in Section
XIX. Effective Date.)
(The removal actions ordered here should be consistent with the Action Memorandum/ Decision
Document).
Based upon the foregoing Findings of Fact, Conclusions of Law, Determinations, and the
Administrative Record for this Site, EPA hereby orders that Respondent s) comply with the
following provisions, including but not limited to all attachments to this Order, all documents
incorporated by reference into this Order, and all schedules and deadlines in this Order, attached
to this Order, or incorporated by reference into this Order, and perform the following actions:
[Early site Security requirement may be required by the Regions]
1. Notice of Intent to Comply
Each Respondent shall notify EPA in writing within X days (The timing of the Respondent ')( s)(
') Opportunity to Confer should always precede the deadline for the Notice of Intent to Comply.
Nonetheless, the Notice of Intent to Comply date must always be consistent with the timing of the
opportunity to confer and the effective date.)
Each Respondent shall notivy EPA in writing with X days the effective date of this Order of
Respondent's irrevocable intent to comply with this Order. Failure of any Respondent to provide
such notification within this time period shall be a violation of this Order by such Respondent.
2. Designation of Contractor, Project Coordinator, and On- Scene Coordinator
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Respondent s) shall perform the removal action itself (themselves)
* Note: All time frames in the order are expressed in calendar days except where noted.
or retain (a) contractor( s) to perform the removal action. Respondent s) shall notify EPA of
Respondent')(s)(') qualifications or the name( s) and qualification s) of such contractor( s)
within (X) business days of the effective date of this Order. Respondent s) shall also notify EPA
of the name( s) and qualification s) of any other contractor( s) or subcontractor s) retained to
perform the removal action under this Order at least (X) days prior to commencement of such
removal action. EPA retains the right to disapprove of any, or all, of the contractors and/ or
subcontractors retained by the Respondent s), or of Respondent')(s)(') choice of itself
(themselves) to do the removal action. If EPA disapproves Of a selected contractor or
Respondent s)» Respondent s) shall retain a different contractor or notify EPA that it will
perform the removal action itself within (X) business days following EPA'S disapproval and shall
notify EPA of that contractor's name or Respondent s) 's name and qualifications within (X)
business days of EPA's disapproval.
within (X) days after the effective date of this Order, the Respondent s) shall designate a Project
Coordinator who shall be responsible for administration of all the Respondent')(SX ') actions
required by the Order. Respondent s) shall submit the designated coordinator's name, address,
telephone number, and qualifications to EPA. To the greatest extent possible, the Project
Coordinator shall be present on site or readily available during site work. EPA retains the right to
disapprove of any Project Coordinator named by the Respondent s). If EPA disapproves of a
selected Project Coordinator, Respondent s) shall retain a different Project Coordinator and shall
notify EPA of that person's name and qualifications within (X) business days following EPA's
disapproval. Receipt by Respondent') s(') Project Coordinator of any notice or communication
from EPA relating to this Order shall constitute receipt by all Respondent s)-
The EPA has designated of the (Regional Office Namee. g., Emergency and Enforcement
Response Branch), as its On- Scene Coordinator (OSC). Respondent s) shall direct all
submissions required by this Order to the OSC at (OSC's address) [Regions may specify method
of delivery, e. g., by certified mail, express mail, or other delivery methods],
3. Work to Be Performed
Respondent s) shall perform, at a minimum, the following removal action:
with section V of the Action Memo and should provider sufficient detail to permit
Respondent s) to draft a Work Plan. Regions may append their own Statement of work
or work Plan; if their situation occurs, modify sections 3.1- 3 as appropriate.)
(The dates of the referenced regulations and guidance documents may change depending
on future Agency actions.)
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3.1 Work Plan and Implementation
Within (x) days after the effective date of this order, the Respondent s) shall submit to EPA for
approval a draft Work Plan for performing the removal action set forth above. The draft Work
Plan shall provide a description of, and an expeditious schedule for, the action required by this
Order.
EPA may approve, disapprove, require revisions to, or modify the draft Work Plan. If EPA
requires revisions, Respondent s) shall submit a revised draft Work Plan within (X) days of
receipt of EPA's notification of the required revisions. Respondent s) shall implement the Work
Plan as Finally approved in writing by EPA in accordance with the schedule approved by EPA.
Once approved, or approved with modifications, the Work Plan, the schedule, and any subsequent
modifications shall be fully enforceable under this Order. Respondent s) shall notify EPA at least
48 hours prior to performing any on- site work pursuant to the EPA approved Work Plan.
Respondent s) shall not commence or undertake any removal actions at the Site without prior
EPA approval.
(If a planning period of 6 months exists, include: "If EPA before on- site removal actions will
begin, Respondents( s) shall prepare an Engineering Evaluation/ Cost Analysis (EE/ CA) as
required by the NCP at 40 CFR Part 3000.415( b) (4).") [Optional: Regions may specify formal
standards for work quality and quality of deliverables.]
3.2 Health and Safety Plan
Within (X) days after the effective date of this order, the Respondent s) shall submit for EPA
review and comment a plan that ensures the protection of the public health and safety during
performance of on- site work under this Order. This plan shall be prepared in accordance with
EPA'S Standard Operating Safety Guide, (November 1984, updated July 1988). In addition, the
plan shall comply with all current applicable Occupational Safety and Health Administration
(OSEA) regulations; Hazardous Waste Operations and Emergency Response; found at 29 CFR
Part 1910. [optional: If EPA determine that it is appropriate, the plan shall also include
contingency planning. Regions may provide more detail, e. g., SPCC, evacuation plans, etc.].
Respondent s) shall incorporate all changes to the plan recommended by EPA, and implement the
plan during the pendency of the removal action.
3.3 Quality and Sampling
All sampling and analyses performed pursuant to this Order shall 7 conform to EPA direction,
approval, and guidance regarding Sampling, quality assurance/ quality control (QA/ QC), data
validation, and chain of custody procedures. Respondent s) shall ensure that the laboratory used
to perform the analyses participates in a QA/ QC program that complies with the appropriate EPA
guidance. Respondent s) shall follow the following documents as appropriate as guidance for
QA/ QC and sampling: "Quality Assurance/ Quality Control Guidance for Removal Activities:
Sampling QA/ QC Plan and Data Validation Procedures, "OSWER Directive Number 9360.4- 01;
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"Environmental Response Team Standard Operating Procedures, "OSWER Directive Numbers
9360.4- 02 through 9360.4- 08; [and the Representative Sampling Guidance for soil, air, ecology,
waste, and water as this information becomes finalized and available.] (check with Regional OA
Officers for availability and location of these documents.)
Upon request by EPA, Respondent s) shall have such a laboratory analyze Samples submitted by
EPA for quality- assurance monitoring. Respondent s) shall provide to EPA the quality
assurance/ quality control procedures followed by all sampling teams and laboratories performing
data collection and/ or analysis.
Upon request by EPA, Respondent s) shall allow EPA or its authorized representatives to take
split and/ or duplicate samples of any samples collected by Respondent s) while performing
actions under this Order. Respondent s) shall notify EPA not less than
(X) days in advance of any sample collection activity. EPA shall have the right to take any
additional samples that it deems necessary.
3.4 Reporting
Respondent s) shall submit a written progress report to EPA concerning actions undertaken
pursuant to this Order every (xth) day after the date of receipt of EPA'S approval of the Work
Plan Until termination of this Order, unless otherwise directed by the OSC (in writing). These
reports shall describe all significant developments during the preceding period, including the
actions performed and any problems encountered, analytical data received during the reporting
period, and the developments anticipated during the next reporting period, including a schedule of
work to be performed, anticipated problems, and planned resolutions of part or anticipated
problems.
(The frequency and content of these reports may be determined on a site-specific basis.
Any Respondent and Successor in title shall, at least 30 days prior to the conveyance of any
interest in real property at the mite, give written notice of this Order to the transferee and written
notice to EPA [and the State] of the proposed conveyance, including the name and address of the
transferee. The party conveying such an interest shall require that the transferee comply with
Section Four of this Order - Access to Property and Information.
3.5 Final Report
Within (X) days after completion of all removal actions required under this Order, the
Respondent s) shall submit for EPA review [and approval] a final report summarizing the actions
taken to comply with this Order. The final report shall conform, at a minimum, with the
requirements set forth in Section 300.165 of the NCP entitled "OSC Reports" (and for removals
that are more extensive, Regions may require compliance with OSWER Directive No. 9360.3- 03
Response Reporting"). The final report shall include a good faith estimate of total costs or
statement of actual costs incurred in complying with the Order, a listing of quantities and types of
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materials removed, a discussion of removal and disposal options considered for those materials, a
listing of the ultimate destinations of those materials, a presentation of the analytical results of all
sampling and analyses performed, and accompanying appendices containing all relevant
documentation generated during the removal action (e. g., manifests, invoices, bills, contracts, and
permits), The final report shall also include the following certification signed by a person who
supervised or directed the preparation of that report:
Under penalty of law, I certify that to the best of my knowledge, after appropriate
inquiries of all relevant persons involved in the preparation of the report, the information
submitted is true, accurate, and complete. I am aware that theme are significant penalties
for submitting false information, including the possibility of fine and imprisonrent for
knowing violations.
4. Access to Property and Information
Respondent s) shall provide and/ or obtain access to the Site and off- site areas to which access is
necessary to implement this order, and provide access to all records and documentation related to
the conditions at the Site and the action conducted pursuant to this order. Such access shall be
provided to EPA employees, contractors, agents, consultants, designees, representatives, and
State of (name) representatives. These individuals shall be permitted to move freely at the Site and
appropriate off- site areas in order to conduct actions which EPA determine to be necessary.
Respondent s) shall submit to EPA (upon receipt/ upon request) the result of all sampling or tests
and all other data generated by Respondent s) or their contractor( s), or on the Respondent') s(
') behalf during implementation of this order.
Where action under this Order is to be performed in areas owned by or in possession of someone
other than Respondent s), Respondent s) -shall use (its/ their) beet efforts to obtain all necessary
access agreements within (x.) days after the effective date of this Order, or as otherwise specified
in writing by the OSC. Respondent s) shall immediately notify EPA if after using
(its/ their) best efforts (it is/ they are) unable to obtain such agreements. Respondent s) shall
describe in writing (its/ their) effort( s) to obtain access. EPA may then assist Respondent s) in
gaining access, to the extent necessary to effectuate the removal actions described herein, using
such means as EPA deems appropriate. EPA reserves the right to seek reimbursement from
Respondent s) for all costs and attorney's fees incurred by the United States in obtaining access
for Respondent s).
5. Record Retention, Documentation, Availability of Information
Respondent s) shall preserve all documents and information relating to work performed under
this Order, or relating to the hazardous substances found on or released from the Site, for ten
years following completion of the removal actions required by this Order. At the end of this ten
year period and 30 days before any document Or information is destroyed, Respondent s) shall
notify EPA that such documents and information are available to EPA for inspection, and upon
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request, shall provide the originals or copies Of such documents and information to EPA. In
addition, Respondent s) shall provide documents and information retained under this Section at
any time before expiration of the ten year period at the written request of EPA.
Respondent s) may assert a business confidentiality claim pursuant to 40 C. F. R. § 2.203( b)
with respect to part or all of any information submitted to EPA pursuant to this Order, provided
such claim is allowed by section 104( e)( 7) of CERCLA, 42 U. S. C. § 9604( e)( 7). [Optional:
"Analytical and other data specified in Section 104( e)( 7)( F) of CERCLA shall not be claimed as
confidential by the Respondent s). EPA shall only disclose information covered by a business
confidentiality claim to the extent permitted by, and by means of the procedures set forth at, 40 C.
F. R. Part 2, Subpart B."] If no such claim accompanies the information when it is received by
EPA, EPA may make it available to the public without further notice to Respondent s).
[Optional: Respondent s) shall maintain a running log of privileged documents on a document-
by- document basis, containing the date, author( a), addressee( s), subject, the privilege or
grounds claimed (e. g., attorney work product, attorney- client), and the factual basic for assertion
of the privilege. Respondentr) shall keep the "privilege log" on file and available for inspection.
EPA may at an through negotiations or time challenge claims of privilege otherwise as provided
by law or the Federal Rules of Civil Procedure."]
6. Off- Site Shipments
All hazardous substances, pollutants or contaminants removed offSite pursuant to this Order for
treatment, storage, or disposal shall be treated, stored, or disposed of at a facility in compliance,
as determined by EPA, with 42 U. S. C. § 9621 ( d)( 3) and the EPA "Revised Procedures for
Implementing Off- Site Response Actions," OSWER Directive Number 9834.11, November 13,
1987. Regional Offices will provide information on the acceptability Of a facility under section
121( d)( 3) of CERCLA and the above directive.
(Unless impracticable, prior notification of out- of- state waste shipment should be given
consistent with OSWER Directives 9330.2- 07.)
7. Compliance With Other Laws
Respondent shall perform all actions required pursuant to this Order in accordance with all
applicable local; state; and federal laws and regulations except as provided in CERCLA section
121 ( e) and 40 C. F. R. section 300.415( i). In accordance with 40 C. F. R. § 300.415( i), all on-
site actions required pursuant to this Order shall, to the extent practicable, as determined by EPA,
considering the exigencies of the situation, attain applicable or relevant and appropriate
requirements (ARARs) under federal environmental, state environmental, or facility siting laws,
(see "The Superfund Removal Procedures for Consideration of ARARs During Removal
Actions," OSWER Directive No. 9360.3- 02, August 1991). [Optional: "Respondents) shall
identify ARARs in the Work Plan subject to EPA approval."]
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8. Emergency Response and Notification of Release
If any incident, or change in site conditions, during the actions conducted pursuant to this Order
causes or threatens to cause an additional release of hazardous substances from the Site or an
endangerment to the public health, welfare, or the environment, the Respondent s) shall
immediately take all appropriate action. The Respondent s) shall take these actions in accordance
with all applicable provisions of this Order, including, but not limited to the Health and Safety
Plan, in order to prevent, abate or minimize Such release or endangerment caused or threatened
by the release. Respondent s) shall, also immediately notify the OSC or, in the event of his/ her
unavailability, shall notify the Regional Duty Officer (Appropriate Regions - e. g., Emergency
Planning and Response Branch, EPA Region, telephone number, and the EPA Regional
Emergency 24- hour telephone number) of the incident or site conditions. If Respondent s) fail(
s) to take action, then EPA may respond to the release or endangerment and reserve the right to
pursue cost recovery.
In addition, in the event of any release of a hazardous substance, Respondent s) shall immediately
notify EPA'S OSC (insert Regional spill phone number) and the National Response Center at
telephone number (800) 424- 8802. Respondent s) shall submit a written report to EPA within
(seven (7)) days after each release, setting forth the events that occurred and the measures taken
or to be taken to mitigate any release or endangerment caused or threatened by the release and to
prevent the reoccurrence of such a release. This reporting requirement is in addition to, not in lieu
of, reporting under CERCLA section 103( c) and section 304 of the Emergency Planning and
Community Right- To- Know Act of 1986, 42 U. S. C. Sections 11001 et seq.
VII. AUTHORITY OF THE EPA ON- SCENE COORDINATOR
The OSC shall be responsible for overseeing the proper and Complete implementation of this
Order. The OSC shall have the authority vested in an OSC by the NCP, 40 CFR 300.120,
including the authority to halt, conduct, or direct any action required by this Order, or to direct
any other removal action undertaken by EPA or Respondent s) at the Site. Absence of the OSC
from the Site shall not be cause for stoppage of work unless specifically directed by the OSC.
EPA and Respondent s) shall have the right to change their designated OSC or Project
Coordinator. EPA shall notify the Respondent s)> ar>d Respondent s) shall notify EPA (insert
time frame of notification), before such a change is made. Notification may initially be made
orally, but shall be followed promptly by written notice.
VIII. ENFORCEMENT: PENALTIES FOR NONCOMPLIANCE
Violation of any provision of this Order may subject Respondent s) to civil penalties of up to
twenty- five thousand dollars ($ 25,000) per violation per day, as provided in section 106( b)( 1)
of CERCLA, 42 U. S. C. § 9606( b)( 1). Respondent s) may also be subject to punitive damages
in an amount up to three times the amount of any cost incurred by the United States as a result of
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such violation, as provided in section 107( c)( 3) of CERCLA, 42 U. S. C. § 9607( c)( 3). Should
Respondent s) violate this Order or any portion hereof, EPA may carry out the required actions
unilaterally, pursuant to section 104 of CERCLA, 42 U. S. C. § 9604, and/ or may seek judicial
enforcement of this Order pursuant to Section 106 of CERCLA, 42 U. S. C. § 9606.
IX REIMBURSEMENT OF OVERSIGHT COSTS
Respondent s) shall reimburse EPA, upon written demand, for all response cost incurred by the
United States in overseeing Respondent ')(s)(') implementation of the requirements Of this
Order. EPA may submit to Respondent s) on a periodic basis a bill for all response costs incurred
by the United States with respect to this Order. EPA'S (Financial Management System Summary
data or such other agency (Name of Regional) cost summary) as certified by issue a Demand
Letter for past costs.)
Respondent s) shall, within (X) days of receipt of the bill, remit a cashiers or certified check for
the amount of those costs made payable to the "Hazardous Substance Superfund," to the
following address:
(Regional Lock Box)
(Bank's Address)
Respondent s) shall simultaneously transmit a copy of the check to EPA (Regional- Address).
Payments shall be designated as "( Response Costs)- (Site Name) site" and shall reference the
payor's name and address, the EPA site identification number (number), and the docket number of
this Order. Interest at the rate established under section 107( a) of CERCLA shall begin to accrue
on the unpaid balance from the day of the original demand notwithstanding any dispute or
objection to any portion of the costs.
X RESERVATION OF RIGHTS
Except as specifically provided in this Order, nothing herein shall limit the power and authority of
EPA or the United States to take, direct, or order all actions necessary to protect public health,
welfare, or the environment or to prevent, abate, or minimize an actual or threatened release of
hazardous substances, pollutants or contaminants, or hazardous or solid waste on, at, or from the
Site. Further, nothing herein shall prevent EPA from seeking legal or equitable relief to enforce
the terms of this Order, from taking other legal or equitable action as it deems appropriate and
necessary, or from requiring the Respondent s) in the future to perform additional activities
pursuant to CERCLA or any other applicable law. EPA reserves the right to bring an action
against Respondent s) under section 107 of CERCIA, 42 U. S. C. section 9607, for recovery of
any response costs incurred by the United States related to this Order or the Site and not
reimbursed by Respondent s). [Optional: Regions may add more specific language.] (Note: Only
a Natural Resource Trustee has the authority to waive a Claim for Natural resource damages.)
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XI OTHER CLAIMS
By issuance of this Order, the United States and EPA assume no liability for injuries or damages
to persons or property resulting from any acts or omissions of Respondent s). The United States
or EPA shall not be deemed a party to any contract entered into by the Respondent s) or (its/
their) directors, Officers, employees, agents, succssors, representatives, assigns, contractors, or
consultants in carrying out actions pursuant to this Order.
This order does not constitute a pre- authorization of funds under section 111 ( a)( 2) Of
CERCLA, 42 U. S. C. § 9611( a)( 2).
Nothing in this Order shall constitute a satisfaction of or release from any claim or cause of action
against the Respondent s) or anY person not a party to this Order, for any liability such person
may have under CERCLA, other statutes, or the common law, including but not limited to any
claims of the United States for costs, damages and interest under section 106( a) and 107( a) of
CERCLA, 42 U. S. C.§ 9606( a) and 9607( a).
XII. MODIFICATIONS
Modifications to any plan or schedule (or the attached EPA Statement of Work) may be made in
writing by the OSC or at the OSC's oral direction. If the OSC makes an oral modification, it Will
be memorialized in writing within (X) days; provided, however, that the effective date of the
modification shall be the date of the OSC's oral direction. The rest of the Order, or any other
portion of the Order may only be modified in writing by signature of the (delegated signatory or
designee of EPA Region (number)) 1
If Respondent s) seek( s) permission to deviate from any approved plan Or schedule (or
Statement of Work), Respondent') s(') Project Coordinator shall submit a written request to
EPA for approval outlining the proposed modification and its basis.
No informal advice, guidance, suggestion, or comment by EPA regarding reports, plans,
specifications, schedules, or any other writing Submitted by the Respondent s) shall relieve the
Respondent s) of (its/ their) obligation( s) to obtain such formal approval as may be required by
this Order, and to comply with all reguirements of this Order unless it is formally modified.
XIII. NOTICE OF COMPLETION
When EPA determines, after EPA's review of the Final Report, that all removal actions have been
fully performed in accordance with this Order, with the exception of any continuing obligations
required by this Order, including ( Regions should provide a list of such obligations) EPA will
provide notice to the Respondent s). If EPA determines that any removal actions have not been
completed in accordance with this Order, EPA will notify the Respondent s), provide a list of the
deficiencies, and require that Respondent s) modify the Work Plan to correct such deficiencies.
The Respondent s) shall implement the modified and approved Work Plan and shall submit a
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modified Final Report in accordance with the EPA notice. Failure by Respondent s) to implement
the approved modified Work Plan shall be a violation of this order.
XIV. ACCESS To ADMINISTRATIVE RECORD
The Administrative Record supporting these removal actions is available for review at (Insert
Region- specific logistical information for review of the record) [Optional: An index of the
Administrative Record is attached (if available at the time of issuance)].
XV. OPPORTUNITY TO CONFER
Within (x) days after issuance of this Order, Respondent s) may request a conference with EPA.
Any such conference shall be held within (x) days (prior to/ after) the effective date unless
extended by agreement of the parties. At any conference held pursuant to the request,
Respondent s) may appear in person or be represented by an attorney or other representative.
If a conference is held, Respondent s) may present any information, arguments or comments
regarding this Order. Regardless of whether a conference is held, Respondent s) may submit any
information, arguments or comments in writing to EPA within (X) days following the
conference^ or within (X) days following issuance of the Order if no conference is requested).
[Optional: Regions may specify the scope of issues which can be discussed during the conference,
considering site- specific circumstances.] This conference is not an evidentiary hearing, does not
constitute a proceeding to challenge this Order, and does not give Respondents) a right to seek
review of this order. Requests for a conference, or any written submittal under this paragraph,
shall be directed to ( Name of Individual), Assistant Regional Counsel, at (telephone number),
(address) 1
XVI. INSURANCE
(Note: Regions are encourage to include the provision in the last business liability insurance
policy, (" Comprehensive General Liability" policy, or to supplement the coverage already
maintained by Respondents( s), (its/ their) contractors or Subcontractors. This policy provides
coverage for liability claims made by the third parties who are injured by PRP removal actions
required by EPA at the Site. The coverage ensures that third parties are compensated for such
injuries; that the PRP bears the cost of such protection; and that the United States runs less risk of
bearing litigation costs arising from liability suits against it.) (Note: This policy typically does not
cover liability caused by releases of pollutants; such coverage typically has proved unavailable or
prohibitively expensive.)
(Note: Regions are encourage to include the provision in the last not have funds sufficient both to
fund the removal and obtain the optimal insurance policy; or in cases where insurable risks are
minimal and of short duration; or if adequate insurance coverage requirement or omitted in this
section from the order.) exists; or if Respondent s) (has/ have) the financial capacity to self-
insure, and agree to do so, Regions may consider amending the Order to reduce policy limits or to
waive the insurance requirement or omitted in this secion form the order.)
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At least (seven 17)) days prior to commencing any on- site work under this Order, the
Respondent s) shall secure, and shall maintain for the duration of this order, comprehensive
general liability insurance and automobile insurance with limits of (XXXX) million dollars,
combined single limit. Within the same time period, the Respondent s) shall provide EPA with
certificates of such insurance and a copy of each insurance policy, [f the Respondent s)
demonstrate( s) by evidence satisfactory to EPA that any contractor or subcontractor maintains
insurance equivalent to that described above, or insurance covering the same risks but in a lesser
amount, then the Respondents) need provide only that portion of the insurance described above
which is not maintained by such contractor or subcontractor.
XVII. ADDITONAT- REMOVAL ACTIONS
[This section is optional]
[Optional: If EPA determines that additional removal actions not included in an approved plan are
necessary to protect public health, welfare, or the environment, EPA will notify Respondent s) of
that determination. Unless otherwise stated by EPA, within
(thirty (30)) days of receipt of notice from EPA that additional removal actions are necessary to
protect public health, welfare, or the environment, Respondent s) shall submit for approval by
EPA a Work Plan for the additional removal actions. The plan shall Conform to the applicable
requirements of sections (XXXXX) of this Order. Upon EPA's approval of the plan pursuant to
Section VI. 3.1- Work Plan and Implementation, Respondent s) shall implement the plan for
additional removal actions in accordance with the provisions and schedule contained therein. This
section does not alter or diminish the OSC's authority to make oral modifications to any plan or
schedule pursuant to Section XII.]
XVIII. SEVERABILITY
If a court issues an order that invalidates any provision of this Order or finds that Respondent s)
has sufficient Cause not to comply with one or are provisions of this Order, Respondent s) shall
remain bound to comply with all provisions of this Order not invalidated or determined to be
subject to a sufficient cause defense by the court's order.
XIX. EFFECTIVE DATE
(Region may specific practice and language.) This Order shall be effective (X) days after the
Order is signed by the Regional Administrator, [optional: unless a conference is requested as
provided herein. If a conference is requested, this
Order shall be effective on the (X) day following the day of the Conference unless modified in
writing by EPA.]
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IT IS SO ORDERED
BY: /s/ DATE: 3/16/93
Name
Regional Administrator (or designee)
Region (Number)
U. S. Environmental Protection Agency
EFFECTIVE DATE:
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CLEAN AIR ACT
7-49. Emergency Administrative Powers
1. AUTHORITY. To make findings, to consult with state and local
authorities, and to issue emergency administrative orders pursuant
to the Clean Air Act (CAA) .
2. TO WHOM DFiTiECjATRT"). Regional Administrators and Assistant
Administrator for Enforcement and Compliance Assurance.
3. LIMITATIONS.
a. Regional Administrators must consult with the Assistant
Administrator for Enforcement and Compliance Assurance or his/her
designee before issuing orders.
b. The Assistant Administrator for Enforcement and
Compliance Assurance must notify any affected Regional
Administrators or their designees before issuing orders.
4. redf.lf.oatton AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES.
a. Section 303 of the Clean Air Act.
b. For referral of emergency Temporary Restraining Orders,
see the Chapter 7 delegation entitled "Emergency TRO's.
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DELEGATIONS MANUAL
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5 11/54
SOLID WASTE DISPOSAL APT (SWDA^
8-22-A. nat-arminahinna nf Tmmi-nonf and gnhafant--i a 1 Bn^anjernienl-
1. AUTHORITY. Pursuant to the Solid Waste Disposal Act (SWDA)
to make determinations that the handling, storage, treatment,
transportation, or disposal of any solid waste or hazardous waste
may present an imminent and substantial endangerment to health or
the environment.
2. to whom DFJiROATFin Regional Administrators.
3. r.TMTT&TTONS. This authority shall be exercised subject to
directives issued by the Assistant Administrator for Enforcement
and Compliance Assurance. Regional Administrators must consult
with the Assistant Administrator for Enforcement and Compliance
Assurance or designee when exercising this authority.
4 BRnET.F.rcaTTDM authorttv This authority may be redelegated.
5 AnnTTTOMflr, PFFRRfjrE.q Section 7003(a) of SWDA; also see the
Chapter 8 delegations entitled "Abatement Actions Through
Unilateral Orders" and "Abatement Actions Through Consent orders."
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DELEGATIONS MANUAL II" TN 350
5 ¦'11/94
SOLID WASTE DISPOSAL ACT (SWDA)
8-22-B. Abatement Actions Through Unilateral Orders
1. AUTHORITY. After giving notice to the affected State, to take
administrative action pursuant to the Solid Waste Disposal Act
(SWDA) including, but not limited to, issuing such unilateral
orders as may be necessary to protect health and the environment.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS. This authority shall be exercised subject to
directives issued by the Assistant Administrator for Enforcement
and Compliance Assurance. Regional Administrators must consult
with the Assistant Administrator for Enforcement and Compliance
Assurance or designee and the delegatees of the Regional
Administrators must consult with Regional Counsels or their
designees when exercising this authority.
4. RF,DELEGATION AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES. Section 7003(a) of SWDA.
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DELEGATIONS MANUAL
SOLID WASTE DISPOSAL ACT (SWDA)
8-22-C. Abatement Actions Through Consent Orders
1. AUTHORITY. After giving notice to the affected State, to take
administrative actions pursuant to the Solid Waste Disposal Act
including, but not limited to, issuing such orders on consent as
may be necessary to protect health and the environment.
2. TO WHOM DELEGATED. Regional Administrators.
3. LIMITATIONS.
a. Regional Administrators must obtain the advance
concurrence of the Assistant Administrator for Enforcement and
Compliance Assurance or delegatee, and delegatees of the Regional
Administrators must consult with the Regional Counsels or their
designees before exercising any of the above authorities.
b. The Assistant Administrator for Enforcement and
Compliance Assurance may waive the advance concurrence requirements
by memorandum.
4. rf,delegation AUTHORITY. This authority may be redelegated.
5. ADDITIONAL REFERENCES. Section 7003(a) of SWDA.
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DELEGATIONS MANUAL
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5/11/94
fi&PE nPTMTTMfli W*TET? ICT fqnm)
9-17. Kmprjency &Hnn ni gl-rat-i vo Pnuore
i AUTHORITY To make findings, take action, determine the
' '-I ¦j. ' „f ,-1 __ consult with States and local
practicality or consultation,
authorities, and issue administrative orders pursuant to Section
1431 of the Safe Drinking Water Act (SDWA) .
I tp whom DET.EflaTpn Regional Administrators and Assistant
Administrator for Enforcement and Compliance Assurance.
3. r.TMTTATTONfl. The Assistant Administrator for Enforcement and
Compliance Assurance may exercise these authorities in multi-
Regional cases or cases of national significance. In Addition, the
Assistant Administrator for Enforcement and Compliance Assurance
must notify any affected Regional Administrators,the Assistant
Administrator for Water, or their designees when exercising the
authority to issue orders.
4 RRDF.T.RflATTON AUTHORITY. This authority may be delegated.
5. ADDITIONAL REFERENCES. Section 1431 of SDWA.
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DELEGATIONS MANUAL
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5/11/34
TQXTr fiTTBSTawfTBS mwTBnr. &PT
12-3 -F. Imminent: Hazard Ac fc inn a
1. AUTHORITY. To commence an imminent hazard action in an
applicable District Court of the United States pursuant to Section
7 of the Toxic Substances Control Act (TSCA) ; to direct attorneys
of the Environmental Protection Agency to appear and represent the
Administrator in any such action; to request the Attorney General
to appear and represent the Agency in Section 7 actions; to
negotiate and settle these actions under TSCA; to initiate an
appeal of Federal District Court or Circuit Court of Appeals
decisions rendered in such actions; to represent the Agency in such
an appeal; and to request the Attorney General to initiate, an
appeal and represent the Agency in such an appeal.
2. TP WHOM DF.T.FinATF.n. The Assistant Administrator for
Enforcement and Compliance Assurance and the Regional
Administrators.
3. LIMITATION
a. Prior to commencing an imminent hazard action under this
delegation, a determination that an imminent hazard exists under
TSCA Section 7 must be made pursuant to the Chapter 12 delegation
entitled "Imminent Hazard Determinations."
b. The Assistant Administrator for Enforcement and
Compliance Assurance must consult with the Assistant Administrator
for Prevention, Pesticides, and Toxic Substances and the
appropriate Regional Administrator or their designee prior to
exercising this authority.
C. The Regional Administrator must consult with the
Assistant Administrator for Enforcement and Compliance Assurance
and the Assistant Administrator for Prevention, Pesticides, and
Toxic Substances or their designee before exercising this
authority.
d. The Regional Administrators may only exercise this
authority to request the Attorney General to appear and represent
the Agency in imminent hazard actions and to negotiate and settle
these actions.
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TfiXTf STTRSTANrES (TlNTROTi ftfT
12-3-F. Imminent Hazard Actions (Cont'd)
e. The Assistant Administrator for Enforcement and
Compliance Assurance an<-* t*ie Regional Administrators must have the
concurrence of the General Counsel before exercising cne
authorities- (D t0 commence a civil action pursuant to Section 7
of TSCA: (2) to request the Attorney General to appear and
represent the Agency; or initiate an appeal or request the
Attorney General to do so.
f. Any exercise of the appeal authority will be performed
jointly by the General Counsel ana the Assistant Administrator for
Enforcement and Compliance Assurance.
4 . rfipf.t.F.rjATTrim AUTHORttv This authority may be redelegated.
5. ADDITIONAL REFERENCES
a. Section 7 of TSCA.
b. The Chapter 12 delegation entitled "Imminent Hazard
Determinations" addresses the authority to make an administrative
determination that an imminent hazard exists.
C. The Chapter 12 delegation entitled "Emergency TRO's"
covers the authority to refer emergency Temporary Restraining
Orders.
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THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATIONS AND
LIABILITY ACT (CERCLA)
14-15.Guidelines for Use of Imminent Hazard, Enforcement
and Emergency Response Authorities
1. AUTHORITY. To establish, modify and publish guidelines for
using the imminent hazard, enforcement and emergency response
authorities under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) and other existing statutes
administered by the Agency.
2. TO WHOM DELEGATED. Assistant Administrator for Enforcement
and Compliance Assurance;
3. TiTMTTATTONS- The Assistant Administrator for Enforcement and
Compliance Assurance will obtain the advance concurrence of the
Assistant Administrator for Solid Waste and Emergency Response
before exercising this authority.
4. RRDKr.EGATTON authority. This authority may be redelegated.
5. AnDTTTONAr. references Section 106(c) of CERCLA.
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