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OSWERy'9833.0
GUIDANCE MEMORANDUM
ON
USE AND ISSUANCE OF ADMINISTRATIVE ORDERS
UNDER
SECTION 106 (a)
OF CERCLA
Received
JAN 2 8 2000
Enforcement & Compliance Docket
& Information Centsr
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OSWER = 9833.0
TABLE OF CONTENTS
I, Introduction ...........
II. Requirements for Issuance and Scope
of §106 (a) Administrative Orders . 4
A. Necessity for "Determination" ... 5
B. Necessity for Actual or Threatened
Release of Hazardous Substance . 6
C. Necessity that'Release or Threat
of Release be From a Facility 7
D. Necessity for Existence of Imminent
and Substantial Endangerment ... 7
E. Notice to Affected States 9
III. Persons "to Whom an Order May Be Issued 10
IV. Criteria for Issuance of §106 Orders . 11
A. Responsible Parties' Financial Status 12
B, Number of Responsible Parties Subject to
the Order . 13
C. Specificity of the Necessary Response Action . 14
D. Agency's Readiness to Litigate the Merits
of the Order .16
E. Competing Consideration 16
V. Orders Relating to Removals and Remedial Actions . 17
A. Immediate Removals ......... 17
B. Planned Removals and Remedial Actions .... 19
VI. Procedures for Issuance of §106 Orders 19
A. Planned Removals and Remedial Actions .... 20
B. Immediate Removals ..... 21
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OSWER = 9833.0
C, Conference Procedures
- D. Modification, ???? or Stay of .
the Order , 24
VIII. Procedure if Order Not Obeyed . 24
IX. Note on Purpose and Use of This Memorandum ..... 25
Appendix A: Notification Letter
Appendix B: Sample §106 a Administrative Order
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WASHINGTON DC 20460
SUBJECT: Guidance Menoran^n-
ens Assistant Administrator f-- c.
waste and Emerge^ Response ~
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-c-jrtr.ey y. ric-
Special Counsel for En forc^eV?-
T0: Regional Administrators, R^i
R
- r
Counsels, Recrc ?~x
Air and Waste Manace-,orr D
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2 OSWER = 9833.0
endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous
a-
substance from a facility." A fine not exceeding $5,000 per day
may be imposed for willful violation, failure or refusal to
comply with a §106(a) Order (Order), and punitive damages of up
to three times the cost of clean-up of the site may be imposed
under §!07(c)(3) for failure, without sufficient cause, to
properly provide removal or remedial action pursuant to such an
Order. In -view of the magnitude of these penalties, the Agency
expects that the regulated community will comply with
administrative Orders. At the same time, the Agency's obligation
is to ensure that Orders are properly issued.
It is the current policy of EPA that, whenever possible,
parties who have caused or contributed to a release or a threat
of a release of hazardous substances at a site should rectify the
problems at the site. This action is necessary to ensure that
the Agency efficiently manages the limited funds available under
CERCIA and to ensure that. the. maximum number of sites are
addressed.
Accordingly, after the Agency discovers a site and in
advance of completing a Remedial.Investigation and Feasibility
Study (RI/FS), (and has conducted an endangerment assessment, or
their equivalent), responsible parties normally will be sent a
notice letter requesting them to clean up the site. Following
completion of the feasibility study, the Agency normally engages
in discussion with responsible parties in an attempt to obtain
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promptly the agreement of such parties to voluntarily undertake
the necessary response actions. If the discussions are
successful, the terms of the agreement will be embodied in a
judicial consent decree or a §106 administrative consent Order.
In circumstances where the Agency wishes to compel a
responsible party to undertake the response actions, including
instances where no settlement can be reached, the Agency will
consider issuing a unilateral §106 Order in accordance with this
guidance.
The administrative enforcement authority is an important
component of the Agency's enforcement program authorized under
CERCLA. This guidance is being issued to assist the regional
offices in developing and maintaining an effective CERCLA (~
administrative enforcement program. The effectiveness of the
program will be enhanced as site remedies are implemented by
Respondents in compliance with administrative orders, and as
enforcement of Orders with which Respondents are not in
compliance is successfully and expeditiously pursued by EPA. The
Agency will aggressively defend judicial challenges to Orders and
enforce instances of non-compliance to validate the CERCLA
administrative enforcement program. Regional offices should
issue Orders consistent with the criteria and procedures
contained in this guidance to ensure the legal sufficiency of the
program.
The §106 administrative order authority provides strong
incentives for Respondents to undertake expeditiously response \
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actions deemed necessary by EPA to ensure protection of public
health gr welfare or the environment. Therefore, Regional
Offices are urged to consider the use of unilateral CERCLA
administrative orders in every case where compelling enforcement
authority is necessary. Criteria are provided herein to assist
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regional offices in determining whether Orders are appropriate in
C.e/LCL.,T
any case. It is essential that a balanced ?-?-?-? enforcement
program is implemented by EPA, combining administrative and
judicial enforcement authorities, to ensure protection of health
and the environment from the hazards of releases or threats of
releases of hazardous substances.
II.- Requirementsfor Issuance and Scope ofSection 106 CERCLA
Orders ^ .
A comparison of §106(a) and §7003 of the Resource
Conservation and Recovery Act (RCRA) reveals similarities in the
two sections, and therfore many of the criteria for issuance of a
§7003 Order also apply to §106 Orders.1 In many situations,
either Order would be appropriate. Where the hazardous
substances are also "hazardous waste" under RCRA, the Order-
should cite the authority of both sections.
Section 106(a) of CERCLA provides as follows:
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 actual or
§
1Guidance on the ftse of RCRA ^§7003 administrative orders may
be found in a memorandum entitled, "Issuance of Administrative
Orders Under Section 7003 of the Resource Conservation and ,
Recovery Act" dated September 11, 1981.
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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 such 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
In order for an Order to be issued, the following legal pre-
requisites must be met:
A. Necessity for a Determination Based Upon Evidence
A determination must be made that, because of a release or
threat of a release, an imminent and substantial endangerment may
exist. This determination will depend upon documentary,
testimonial, and physical evidence obtained through
investigations and inspections. Other information concerning the
nature of the threat posed by a site may already be contained in
Agency files, such as data generated pursuant to §103 of CERCLA
or the permit and notification sections of RCRA. The Order,
therefore, must include a finding that an imminent and
substantial endangerment may exist, in order to ensure that this
statutory requirement is met. (See sample order. Appendix b,
Finding No. 7).
The President has delegated his authority under this
Section to the Administrator of EPA and the U.S. Coast Guard by
Executive Order No. 12316 dated August 24, 1981. EPA and the
Coast Guard have entered into a Memorandum of Agreement dated
October 9, 1981, that all site-related releases in the Coast
Guard's jurisdictional areas (coastal zones, Great Lakes, ports
and Harbors) shall be the responsibility of EPA.
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B. Necessit for Actual or Threatened Release of Hazardous
Substance _LC^-t^lS. m^cvcr . ,
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Section 106 requires ??^?-?--??? or threatened release
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of a hazardous substance from a facility. A "hazardous
substance" is defined in Section 101(14) of CERCLA, and is
generally any substance, waste or pollutant designated pursuant
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to Sections ??-?-?;'and ?-?-??- (A) of the Clean Water Act, Section
k; , f-.i.i-«^i \-\^.'<-,-i' .
TSCA or Section -?-?-? - of CERCLA, kCrude oil, ??-?-? :, natural gas, and
liquified natural gas are exempted from statutory coverage.)
Whether a release from a facility is "actual" or
"threatened" primarily depends upon temporal considerations.
Actual releases should be observable in some form, either
visually or through analysis showing contaminants present in
samples of soil, water or air. A "threat" of a release, on the
other hand, involves releases which have yet to occur or have yet
to find their way into the environment. A bulging, tank
containing a hazardous substance in which pressure has built up,
and a surface impoundment which is about to overflow because of
heavy rainfall, present obvious threats of a release, A threat
is also presented by corroding or leaking drums containing
incompatible wastes mingled in a common area. Accordingly, the
3A "release is defined in CERCLA S101(22) as "any spilling, V
leaking, "pumping, pouring, emitting, emptying, discharging, . x
ejecting, escaping, leaching, dumping, or disposing into the v
environment," with certain specific exemptions (e.g. release
solely in work place; engine exhaust; release of certain nuclear
material; and normal application of fertilizer).
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determination of whether a "threat" of a release warrants
issuance of an Order is a judgement decision to be made on a
case-by-case basis.
The nature of both the hazardous substances present at the
site and the release or threat of release 'should be set forth as
findings in the order, together with the bases for such findings.
C. Necessity That Releaseor Threat ofRelease be From a
Facility
The release or threat of release must be from a "facility,"
which is defined in CERCLA $101(9) as:
(A) any building, structure, installation, equipment, pipe
or pipeline (including any pipe into a sewer or publically
owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor
vehicle, roiling 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 {a ^atercraft or other contrivance used, or capable 'v
of being used, as a means of transportation on water).
This definition of "facility" includes on-shore or off-shore
sites, including land transportation facilities, from which
releases or threats might originate. The Order must specify the
physical location that is the source of the release.
D.' Necessity- for ExistenceofImminent and Substantial
Enda nge rment
Evidence presented to support the issuance of''§106 (a) order ''/
must show "that there may be an imminent and substantial
endangerment" to public health or welfare or the environment.
The words "may be" indicate that Congress established a
standard of proof that does not require a certainty. The -
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evidence need not demonstrate that an imminent and substantial
ehdangerment to public health or the environment definitely
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exists. Instead, an Order may be issued if there is sound reason
to believe that such an endangerment may exist.
Evidence of actual harm is not required. As the Court
stated in Ethyl Corp. v. EPA, construing, an endangerment
provision in the Clean Air Act:
The meaning of "endanger" is not disputed. Case law
and dictionary definition agree that endanger means
something less than actual harm. When one is
endangered, harm is threatened; no actual injury need
over occur. (541 F.2d 1 at 13, footnotes omitted,
original emphasis, D.C. Cir., cert. den. 426 U.S. 941
(1976).)
It should also be noted while the risk of harm must be
imminent in order for the Agency to act under §106, the harm
itself need"not be. (See the legislative history to the
"imminent and substantial endangerment" provision of §1431 of the
Safe Drinking Water Act, H. Rpt. 93-1185 at 35-36.) For example,
EPA could act if there exists a likelihood that contaminants
might be introduced into a water supply which could cause damage
after a period of latency. One must judge the risk or likelihood
of the harm by examining the factual circumstances, including,
but not limited to: 1) nature and amount of hazardous substance
involved. 2) the potential for exposure of humans or the
environment to the substance, and 3) the known or suspected
effects of the substance on humans or that part of the
environment subject to exposure to the substance.
Legal analyses of the concept of imminent and substantial
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endangerment can also be found in Reserve Mining Co, y, EPA . 514
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F.2d 492 (8th Cir. 1975); U.S. v. Vertac Chemical Co. et al. 429 *
''~'~IT, ' S
a ' -
F.Supp/-2-23^ (E.D. Ark. 1980); U.S, v. Solvents Recovery Service.
496 F. Supp. 1127. (D. Conn. 1980); U.S. v.' Midwest SoIvents"
Recovery, 484 F. Supp. 138 (N.D. Ind. 1980): U.S. v. Diamond
Shamrock Corn.. 17 E.R. 1329 (N.D. Ohio 1981); U.S. v. Price. 688
F. 2d 204 (3rd Cir. 1982) ; U.S. v. Reilly, _Tar_ajid^Chemical Corp..
546 F. Supp 1100 (D. Minn. 1982).
The nature of the endangerment and the basis for the finding
of an imminent and substantial endangerment must be set forth in
the Order. The link between the endangerment and the relief
mandated by the Order should also be evident.
E. Notice to AffectedStates
Finally, before an Order may be issued, the "affected state"
must be given notice of the Agency's intention to issue the
Order,
The Agency is not held to a statutory period of time for
notice. Normally, written notification to the state should
precede federal action by at least one week. Circumstances may
arise, however, where rapid response at a site is necessary. In
such cases, issuance of an Order may follow an abbreviated notice
period or even a telephone call made by EPA to the Director of
the agency responsible for environmental protection in the
affected state. Written confirmation must follow such telephone
notice.
As indicated above, the notification should be directed to
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the Director of the state agency having jurisdiction over
hazardous waste matters. A suggested form for a notification
letter is attached to this memorandum as Appendix A. This form
also provides the format for oral notice.
An "affected state" is interpreted to be the state where the
facility is located from which the discharge is.being released or
threatens to be released, and in which the response activity
required by the -proposed order will be taken. In some cases,
this may involve more than one state, such as where the facility
is located near the border of a state and the hazardous
substances have migrated from the facility located in one state
into another state(s). In those cases, all of the states in
which the hazardous substances are found and in which response
activity may be performed pursuant to the order should be
notified.
III. Persons To Whom an Order May BeIssued
Section 106 does not specify any person or persons to whom
an Order may be issued, but permits the issuance of "such orders
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as may be necessary.-;:" Section 104 (a), however, refers to the
"owner or operator" or "other responsible party" as the persons
to whom the Agency could look to determine whether clean-up of a
site will be done properly before expending CERCLA funds.
Section 107(a), designating those who shall be liable for
response costs, specifies present owners and operators of a
facility, persons who were owners and operators at the time of
disposal of a hazardous substance, and generators and certain
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transporters who, according to available evidence, contributed
hazardous substances to the facility. It follows that those same
persons could be recipients of an Order issued under Section
106 (a), (see U.S. v. ^_Ou-tbo_ar.d_ _Marine Corp.. 556 P. Supp, 54, 57
(N.D. 111. 1982). In addition, in appropriate cases, it may be
possible to issue orders to parties other than those listed in
Section 107(a), if actions by such parties are necessary to
protect the public or the environment.
IV. Criteri.g for Issuance of JL106 Orders
Other parts of this guidance document examine the legal
requirements for issuing an Order. This section's purpose is to
list specific factors which favor the use of Orders over other
possible enforcement responses. These factors include: ^
» Responsible parties' financial status
* Number of potentially responsible parties
« Certainty of the necessary response action
» . Agency's readiness to litigate the merits of the order
The theme common to these .factors is that Orders should be
issued in those situations in which compliance with the terms of
the Order is feasible, i.e., where the Respondents are in a
position to perform the ordered response actions within specified
time periods. This does not mean EPA must make a pre-issuanee
determination that Respondents will comply with an Order, but
rather'that compliance is practicable. If the Agency does not
anticipate compliance with an Order it is considering issuing,
the use of the Order may serve only to delay direct injunctive '
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action under §106 or the initiation of Fund-financed response.
On the other hand, the Agency may wish to issue an Order in any
situation where the needed response action and the liability
therefore are clear and straight-forward, so that refusal to
comply with the terms of the Order would not, in all probability,
be with "sufficient cause" (CERCLA §107(c)(3)). Such refusal
would render the Respondent liable for civil penalties or
punitive damages in the event of federal cleanup.
A. Responsible Parties' Financial Status
Before an administrative order requiring remedial work is
issued, the Agency should assess, to the extend possible, whether
the responsible party has sufficient financial resources to
comply with the Order. Financial information is.available from
several sources:
Agency files contain financial information
collected as part of the identification of parties
responsible for the hazards posed by sites on the
National Priorities List.
» The Securities and Exchange Commission (SEC) requires
publicly traded companies to submit detailed financial
statements. This information is publicly available.
(Consult NEIC's manual entitled "Identifying
Responsible Parties" for additional information on
obtaining SEC files.)
Responsible parties may submit financial information to
the Agency during discussions or negotiations held
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prior to. the issuance of and Order.
In addition, NEIC can provide further information on
Respondent's financial^ . v
B. Number_ of Responsible Parties Subject to the Order
For two primary reasons, the success of Orders for remedial
action is enhanced where there are relatively few responsible
parties.
1)' Coordination of Response JVgtjLop
An Order issued to multiple Respondents who are jointly and
severally liable generally will not allocate, individual clean up
responsibilities.4 Instead, the Order will require the same
response action to be conducted by each 'responsible party.
Multiple parties must organize and coordinate their response to
ensure compliance with the order's requirements. Thus,
compliance with Orders may depend upon group agreement of each
member's share of the response cost. In a large group of
responsible parties, it may be difficult for the -group to develop
a consensus on individual liability and perform response
activities as quickly as necessary to abate imminent hazard
conditions at a site. Accordingly, issuing Orders to all
responsible parties may not be appropriate where there are a
large number of parties who are unlikely to agree on a concerted
response. Instead, the Agency will pursue judicial remedies or
However, the Agency may issue an Order to a Respondent
requiring a response to a discrete, separable aspect of the
hazard at a site, notwithstanding the existence of other
responsible parties or other less divisible problem areas.
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consider issuing Orders to a selected subset of responsible
parties.
Even in situations where Orders are issued to a large number
or parties, Agency policy, which should be reflected in the terms
of the Order, -is that each Respondent is individually liable for
compliance with the Order's requirements. Individual liability
also extends to penalties and punitive damages imposed by CERCLA
for failure to comply with the Order.
2) Supervision
After an Order is issued, the Agency conducts compliance
monitoring at the site to ensure that responsible parties comply
with the terms of the Order. Although no maximum number of
responsible parties can be specified as optimum, it is clear that
the Agency's oversight responsibility is most effectively
accomplished where there are a limited number of responsible
parties.
C. Specificity of the Necessary Response Action
In order to minimize the potential for confusion between
Respondents and the Agency concerning the required response
action, Orders should be used in situations where the nature of
the required response action has been relatively precisely
identified. Orders are normally better suited to mandating
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discrete tasks such as 3-Q?-?-" removals rather than less exact V
actions such as planning. Otherwise it may be difficult for the
Agency to supervise compliance activities, and for responsible
parties to reach agreement on a compliance plan. In most cases,
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information sufficient to describe the required response actions
will be generated by the RI/FS.
An Order should contain the following elements (see Appendix
B) :
The steps the Respondent must take to comply with the
Order;
The effective date of the Order;
: A mandatory time-table for completion of remedial work;
and, where appropriate,
A statement to the effect that other actions or orders
may follow.
Specific remedial action Orders benefit both the Agency and
responsible parties. Responsible parties are provided clearly (
defined compliance standards which will facilitate agreement
among the responsible parties on a remedial plan. If the
responsible parties then determine that the remedial work is best
^jcomplished by a third party contractor, the Order provides a
basis for their contract negotiations.
Specific Orders benefit the Agency by reducing the
difficulty of supervision and judicial enforcement. In
noncompliance situations, the Agency may seek to enforce an Order
in court. A specific Order provides the court with Agency-
articulated standards by which to judge the responsible party's
non-compliance with its terms. Therefore, EPA should make every
effort to clearly articulate the response activities required by
f"
an Order.
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D« Agency's Readiness to Litigate the Merits of the Order
After the Agency issues an Order, the respondent may seek
judicial review to stay the Order. Respondents may challenge
their liability or the appropriateness of the remedy specified in
the Order. On the other hand, the Agency may,promptly seek to
enforce the Order in court. In light of these possibilities, the
Agency must be ready to defend the Order in court at the time it
is issued. This means that the site problem, the reasonableness
of the required response, evidence of liability, and the Agency's
response to issues raised by the recipient must be thoroughly
documented, and that the documentation be organized and easily
retrievable. The documentation will constitute the
administrative record for any litigation.
E. Competing Considerations
The absence of the factors listed above may argue in favor
of pursuing a judicial or Fund-financed, rather than an
administrative, remedy. For example, EPA should not normally
issue an order if the necessary response actions have not been
clearly identified. In addition, Agency enforcement personnel
should strongly consider the judicial course of action if:
the responsible parties have violated provisions in
several environmental statutes;
the opportunity for public comment on the terms of a
settlement agreement warrants the use of a judicial
consent decree, (where there is a 30-day comment period
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before the decree is finalized)5; and
* there is a need for long terra court oversight of a
settlement agreement, (such as in cases where an
agreement calls for separately enforceable response
milestones prior to completion of the cleanup).
V. Orders Relating; to Removalsand Remedial Actions
Guidance on conducting removal actions issued by the office
of Emergency and Remedial Response (OERR) divides the statutory
concept of removals into "immediate" and "planned" removals.
A. I mined ia te Remova Is
Immediate removal actions are to be taken only if a response
is needed within a relatively short time frame to prevent or
mitigate significant harm to human health or the environment, and
such action will not otherwise be provided on a timely basis.
Orders may be used to compel various immediate removal
measures, including:
1. Suspension of activities which aggravate an existing
release or substantial threat of a release (e.g.,
active use of a storage tank judged by the OSC to be in
imminent danger of failure).
2. Suspension of activities which interfere with Federal
removal actions (e.g., plant traffic in area of
cleanup).
However, it should be noted that the Agency is exploring
mechanisms which provide for public comment on both unilateral
and consent administrative Orders. Guidance on this matter will
be provided at a later date.
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3. Movement or non-movement of a transport vehicle
(railway tank car, tank truck, tank vessel) which is
the source of a release or substantial threat of a
release.
4i. Measures to limit access, such as fencing.
5. Use of readily available equipment, owned by the
responsible party, to contain or remove a release
during the initial stages of a response before the OSC
is" able to obtain comparable equipment from other
sources.
6. Dikings; construction of benns; or removal of the
hazardous substance to an approved facility.
(This list illustrates various uses for an Order; it is not an
exclusive compendium.)
Section 106(a) Orders, both in immediate and non-immediate
situations, must contain a statement notifying the party of EPA's
authority and the liability that may be incurred by failure to
comply. As specifically as possible the Order prescribes the
response activity and sets the date for its completion. To
ensure enforceability of the Order, EPA should not undertake its
own CERCLA-funded response activity during the period of time
given to the party to respond, unless (i) such CERCLA-funded
response activity becomes necessary due to the immediacy of the
release or threat of release or (ii) the Respondent formally and
unequivocally states an unwillingness to comply with the Order.
In the event the party undertakes response activity, the OSC
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should remain en-site to ensure that the work is being conducted
in accordance with the Order.
B, Planned Removalsand Remedial Actions
Planned removal situations are those that allow several days
or weeks to execute the response. Remedial actions, on the other
hand, are generally those intended to provide a permanent
resolution to the release and require a longer time and more
expensive efforts to implement.
As in £he case of immediate removals, an Order is available
to compel response measures routinely taken during planned
removal and remedial actions. "Removal activity" includes
assessment programs to evaluate the nature of the problem, and
removal of material from the site. "Remedial actions" are those ^
consistent with a permanent remedy, and include such activity as
capping the area, trenching, and provision of an alternate water
supply.6 EPA's position is that any activity that the Government
night undertake at a site - from plannincr and studies to complete
cleanup-could be ordered pursuant to §106(a). Of course, the
issuance of more than one Order may be necessary if the cleanup
is performed in stages, or if additional responsible parties
become known to EPA who should participate in the cleanup.
VI. Procedures for Issuance of gi06(a) Orders^
CERCLA designates the President as the primary official
_
6See-^101(23) of CERCLA for definition of "remove" or
"removal"/ and^iOi(24) of CERCLA for definition of "remedy" or
"remedial action". Those definitions contain detailed examples
of the types of activities that fall within these categories.
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responsible for taking response and enforcement action under the
Act. The authority to issue administrative orders under §106(a)
has been deiegated to the Administrator of EPA by Executive Order
No. 12316, and redelegated by the Administrator to the Regional
Administrators and the Assistant Administrator for Solid Waste
and Emergency Response (AA-OSWER). The RAs and the AA-OSWER must
consult with the Associate Administrator for Legal and
Enforcement Counsel (AA-OLEC) prior to exercising this authority.
and the RAs-must obtain advance concurrence from the AA-OSWER.
(See Delegations Manual: 14-14.) The AA-OLEC has redelegated the
consultation authority to the Associate Enforcement Counsel-Waste
and the Regional Counsels. The AA-OSWER has redelegated his
advance concurrence authority to the Director, Office of Waste
Programs Enforcement (OWPE). The Office of Waste Programs
Enforcement will develop and issue criteria in separate guidance
which will be used to evaluate circumstances under which this
advance concurrence requirement will be waived on a Region by
Region basis. Regional offices are expected to develop strong
administrative enforcement programs, on an expeditious schedule,
which will permit them to initiate and issue legally and
technically adequate administrative orders with only prior notice
to Headquarters.
A. Planned Removals and Remedial Actions
For planned removals and remedial actions, orders are
drafted by the Regional program office with the cooperation of
the Regional Counsel's office. The draft Order is forwarded to
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the office of Waste Programs Enforcement for review and
concurrence. The Regional Administrators will usually issue the
Order and provide prior notice of the action to the state.
B. Iinined i a t eReao va 1 s
For those Orders which require emergency or quick handling,
usually in response to situations warranting an immediate
removal, the following approval sequence will be used:
The Regional Administrator first must determine whether to
issue an Order based on communication with the OSC and
consultation with Regional Counsel, The Region then prepares an
order with any supporting information and electronically
transmits the material to the Office of "Waste Programs
Enforcement for review and concurrence. Notification to the (
State of our intent to issue the Order should be accomplished
orally, and followed up by formal written notice.
VII. Opportunity to Confer
Agency policy is to offer parties to whom EPA has issued a
unilateral §106 Order an opportunity to confer with the Agency
concerning the appropriateness of its terms and its applicability
to the recipient. The conference will help EPA ensure that it
has based its Order on complete and accurate information and help
EPA and Respondents reach a common understanding of how the Order
should be implemented or modified. The procedures for exercising
this option are communicated to respondents through the text of
the Order itself. (See sample Order, page 4 of Appendix B.)
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. *-
22 OSWER = 9833.0
A. Planned Removals and Remedial Actions
Each Order will specify a date when the Order becomes
effective. For actions other than immediate removals, the
effective date should ordinarily be twenty calendar days from the
day the Order is received by the Respondent. Certain Orders,
such as those requiring that long term remedial actions be taken,
may warrant a more extensive examination of the facts. In such
cases, the Order may specify an effective date more than twenty
days removed to permit the Respondent an opportunity to discuss
the Order with the Agency beyond that accorded by the procedures
set forth in Subpart C below.
If the Respondent seeks to confer with the Agency about the
Order, the Respondent must provide written notification to the
EPA official listed in the Order within ten calendar days of'the
date of receipt. The conference should be scheduled and held as
soon thereafter as practicable, but prior to twenty days from the
date the Order was received by the Respondent.
B. Emergency Situations
The applicable time periods for the effective date and for
requesting a conference may be shortened, (e.g., to 72 and 48
hours respectively^ or the conference procedures may be
eliminated entirely, if the immediacy of the hazard posed by a
site and other surrounding circumstances so warrant. In the
former situation, the Order should permit the Respondent to
request a conference orally, later followed by written
notification.
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23. OSWER = 9833.0 (-
C. Conference Procedures
The conference will normally be held at the appropriate EPA
Regional office and will be presided over by the Regional
Administrator's designee. However, other arrangements may be
agreed to for the sake of convenience to the parties. At the
conference, EPA should be prepared to provide the Respondent with
information sufficient to explain the basis for the Order and to
promote constructive discussions. The Respondent will have the
opportunity to ask questions and present its views through legal
counsel or technical advisors. The schedule.and agenda for the
conference will be left to the discretion of the EPA official
leading the conference, as long as the Respondent receives a
reasonable opportunity to address relevant issues. f~
Following the conference, a written summary of the
proceeding must be prepared, signed by the Agency official who
-f(L. (_'« I 1V i\ <£\C- H- IN_V S.V -S* £>v-V « s- * *<;:
presided over the conference:"" . ?3.?.2333-??-?-?-?-?-?-???? - ': - w
»*
a statement of the date(s) and attendees of any
<-Ad
conference(s)?1L?T>T; and
' . A description of the major inquiries made and views
offered fay the Respondent contesting the terms of ^the
Order.
In addition, the presiding official must prepare a statement
which addresses the significant arguments raised by the
Respondent and which recommends whether and how the Order should
be modified, together with the reasons therefor.
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'» *
24 OSWER = 9833.0
. D. Modification, Revocation, or Stay of the order
Based upon a review of the file upon which the Order
initially was based, any probative information or argument
proffered by the Respondent following receipt of the Order, and
the recommendation of the presiding official, the issuing
official may modify or revoke the Order. Any modification to the
Order must be communicated to the Respondent as part of a copy of
a written statement containing the elements listed in Subpart C
above, The~original should be 'kept in the Agency files along
with the evidence supporting the order, copies of written
documents offered in rebuttal by the Respondent during the
conference, and a copy of the request for a conference.
The issuing official may also stay the effective date of the
Order if the conference process could not be completed within the
specified time period. Before substantially modifying or
revoking an Order, the issuing official must consult with the
O'-U -'' '-
appropriate Headquarters or Reginal counsel and obtain the £???;
VIII. . Procedure If Order Is Not Obeyed
In the event the party to whom the Order is issued does not
comply with its terms, the Agency must quickly decide whether to
attempt to enforce the Order by referring the case to the
Department of Justice for filing of a suit to force compliance,
or whether to undertake cleanup of the site by use of CERCLA
funds, and then file suit against the party for reimbursement of
the costs expended plus statutory penalties for failure to comply
with the Order.
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25 OSWER = 9833.0 ,
The determination of which action to pursue depends on the
type of response action to be taken. Obviously, if an immediate
removal action is required by the hazard at the site, EPA will
clean up the site and attempt recovery of costs and penalties in
a subsequent recovery action. The same course of action applies
to a planned removal where the removal action must be quickly
undertaken and cannot await the filing of a suit. However, /
J-* /
planned removal or remedial responses which required7 an extended v
period of time to perform, and in which initiation of action may
be delayed for a brief period without jeopardizing human health
and the environment, may allow sufficient time for the filing of
a suit to enforce the Order, or at least that portion of the
Order which calls for the planned removal or remedial action to f
\
be taken.
Other factors which way enter into this determination
include the strength of evidence and the financial ability of the
party to perform the desired response activity. The decision of
which option to pursue is initially to be made by the Regional
Administrator, in the same manner and using the same procedures
as previously prescribed for any other enforcement action. The
Regional Administrator's recommendation is then forwarded to
Headquarters for action.
IX. Mote or._...P_mrpos_e_and Us_e_'_o_f_ This Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of attorneys and other employees-of the U.S. (
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26 OSWER = 9833.0
Environmental Protection Agency, They are not intended to nor do
they constitute rule-making by the Agency, and may not be relied
-,"
upon to create a right or benefit, substantive or procedural/
enforceable at law or in equity, by any person. The Agency may
take any action which is at variance with the policies or
procedures contained in this memorandum, or which is not in
compliance with internal office procedures that may be adopted
pursuant to these materials.
Attached to this memorandum as Appendices A and B are
« A sample letter to a state providing notification-of
the Agency's intent to issue a §106 Order; and
» A sample Order.
If you have any questions or problems concerning any matter
r.u;f> £3*.3L-'-ijf ;-;)
contained herein, please call the Director, 7333-*; _(J233-?-J, or V/
Russell B. Selman (426-7503) or Steve Leifer (**??) of the Office
( .^s-i-'-i^o '
of Legal and Enforcement Policy.
Attachments
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OSWER =9833.0 /
Appendix A
STATE NOTIFICATION LETTER . . .
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. R. Jones
State Agency
Division of Environmental Control
Dear Mr. Jones:
Enclosed for your information is a copy of an order (stamped
"DRAFT" and ^CONFIDENTIAL") that the Agency intends to issue on
or after__ tdate) , to the XYZ Company, pursuant to Section
106(a) of the Comprehensive Environmental Response Compensation,
and Liability Act of 1980, (42 use 9606). The order requires
certain activities to be taJcen at the company's site located at
{IgcationL Please 'refer to the enclosed copy -of the
proposed order for the specific actions required of the coropany
and the time within which such actions must be taken. If you
have any comments or questions concerning the order, please f
contact fEPA off icialj_ at (offJ^geJ _ .
Sincerely yours.
Assistant Administrator for
Solid Waste and Emergency Response
(or)
Regional Administrator
designees)
Enclosure
cc: Honorable J. Smith, Governor
#»
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28 OSWER = 9833.0
Appendix B
SAMPLE ORDER
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In the Matter of )
(Name of Person, )
Firm or Corporation) )
} Docket No._
Proceeding Under Section 106(a) of the }
Comprehensive Environmental Response,, }
Compensation and Liability Act of 1980 )
(42 USC Section 9606 fan )
ORDER
The following Order is issued on this date to (insert name
and address of person,firm or corporation, along with facility
name or place of business if the Respondent is not the owner or
operator) ("Respondent(s)"), pursuant to §106(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (CERCLA) (42 USC 9606(a)), by authority delegated to
the undersigned by the Administrator of the United States
Environmental Protection Agency (EPA). Notice of the issuance of
this Order has heretofore been given to the State of .
There is an imminent and substantial endangerment to the
public health and welfare and the environment due to a (threat of
a release) (release) of (a) hazardous substance(s) as defined in
§101(14) of CERCLA (42 USC 9601(14)), from the following location
(the "Facility"):
(insert legal description, if known;
otherwise, use street or route address)
This order directs you to undertake action to protect the public
and the environment from this endangerment.
FINDINGS AND CONCLUSIONS
1. (Choose one or more of 1A through IE, as appropriate under
the factual situation of the case. Do not include
headings.)
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OSWER = 9833.0 ,
1A. | ^Present Owner)-Respondent is nowf and has been since . ^
19 7 the (owner) (and^ *^perator^|J!of the Facility , as determined
from (source or information),]^
IB. I-fiFormer owner/operator) - Respondent was, from ,
19 , until , 19 the (owner) tand^Cpperator) of the
Facility, as determined from (source of information). During
that time hazardous substances, including those described herein,
were disposed of at the facility. Respondent sold or otherwise
transferred and conveyed the Facility,_to on ,
19 _, according to (property records)JTj.
1C. L(Generator) - Respondent (disposed of) (arranged, by
contract or agreement, for the disposal or transport for disposal")
of hazardous substances at the Facility as determined from
(source)/)]. - v'
x'
ID, [.((Transporter) - Respondent chose to accept hazardous "^
substances for transport ,to, and disposal at, the Facility as /'
determined from (source)J'/* ^
-I
v"
IE. | ftOther Party) (Insert reasons why ordered actions are
necessary to facilitate the abatement of the hazard, prevent the
aggravation of the hazard, or otherwise protect the public health
and welfare and/or the environment.),)'' j " .//"
2. (Describe the nature of the facility.)
3. On or about the day of , 19 , an inspection
of the Facility was conducted by (names) (a) duly
authorized representative(s) o^f (EPA, State agency). At the time "-"'
of that inspection, the inspectors observed the following
conditions existing at the Facility:
A. Approximately 1000 drums of liquid, semi-solid and
solid material, which were leaking, without covers and
in various stages of corrosion, rusting and other
deterioration, located directly on the ground.
Material leaking from said drums was observed running
approximately 25 yards across the site into Crystal
Creek, which adjoins the Facility, and which is a
tributary of Pristine River, a navigable water.
According to records at the Facility, materials
contained in the drums include:
(describe hazardous substances)
B. An area in the Facility (the "Landfill area") of
approximately four (4) acres in size, without
vegetation, front which leachate was observed flowing
approximately forty (40) yards into Crystal Creek.
Vegetation had been killed in the area of the leachate.
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,--30 , OSWER = 9833.0
v *- " ,x
According to records at the Facility, the following
hazardous substances had been placed in the Landfill
__.. area:
(List hazardous substances-
then continue with the following)
At the time of the inspection, samples of the drummed
waste, samples of the leachate from the Landfill area, and
samples of (soil, surface water, aroundwater, air, etc.i were
obtained by the inspector(s) .
4. An analysis of the samples taken at.the time of the
inspection disclosed the presence at the Facility of the
following substances in the concentrations set forth:
~ (list hazardous substances and concentrations
confirmed by analysis - then continue with
following sentence)
These substances are "hazardous substances11 as defined in
§101(14) of CERCLA, and are subject to the terms and provisions
of that Act.
5. The hazardous substances described above are treated or
disposed of at the Facility in such manner that they (are being;
{threaten to be ) released and discharged from the Facility into
the (soil, groundwater, surface water, air, etc.) and other parts
of the environment.
6, (Describe population or environment at risk and route of
exposure). Exposure to said hazardous substances may cause
illness, disease, death or other harmful effects to plant and
animal life and humans.
7. The (release) (and/or) (threat of release) of said hazardous
substances may present an imminent and substantial endangerment
to public health and welfare and the environment.
8. In order to protect human health and welfare and the
environment, it is necessary that action be taken to contain and
terminate the (release) (and/or) (threat of release) of hazardous
substances from the Facility into the environment.
ORDER
Based upon the foregoing determinations and Findings of
Fact, it is hereby ordered and Directed that:
A***} bd. s
(Note - the Respondent may^be ordered to undertake any
response activity that ??-?-?-' required to protect public
health, 333-23'?"'the environment, including, but not limited
-~--.
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.*v
l'~31 ,/ OSWER = 9833.0 f
-W, _ \^s . C
y^T those actions which the government is authorized to
carry out under CERCLA.)
(Insert here the response actions which EPA directs
Respondent to take at the site. Each activity, (i.e,J
redrumming of waste, construction of fencing, levees,
submission of plans for installation of monitoring wells,
etc.), and the date for compliance with each activity,
should be listed separately. )
(Insert a statement to the effect that other orders or
action may follow.)
EFFECTIVE DATE - OPPORTUNITY TO CONFER
This Order is effective on the twentieth calendar day
following receipt thereof by Respondent ,/ and all times for
performance'*~of response activities 333-2J?- be calculated from that
date, (Note: For immediate removal situations, the effective
date will be considerably abbreviated.)
You may, within ten calendar days after receipt of this
Order, request in writing a conference with (Official) to discuss
this Order and its applicability to you. (Note: For immediate
removal situations, the time for requesting a hearing will be
abbreviated. In addition, the Respondent should be informed that
he or she may make an oral request for a conference, to be
followed up by written notice within two or three days.)
At any conference held pursuant to your request, you may
appear in person and by attorney or other representatives for the
purpose of presenting any objections, defenses or contentions
which you may have regarding this Orde*-. If you, desire such a
conference, please contact (name. title, address ancj telephone
number of EPA contact) within the 'time set forth above for
requesting a conference.
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J?2/ OSWER =>9833.0
PENALTIES FOR NON-COMPLIANCE /" ^ y p^xO. I-
j OCCUvYi / .^Of fvvG
Respondent is advised that willful violation or failure or
refusal"" it o comply with this Order, or any portion thereof, =^?9- \^c^~j
for each day in which such violation ?-??? or such failure to
comply continues. Failure-to comply with this Order, or any
portion thereof, without sufficient ??T? subject you under ?-??-? 3s'c
of CERCLA (42 u.s.c. §9607(c)(3)), to\liability for punitive
damages in an amount up to three time^ the amount of any costs
incurred by the government as a result of your failure to take
proper action. . \ , ^ _ Cv, ^--
WITNESS my hand in the City of ; _ , state of
_
as ^tj^tl^ of authorized EPA issuing official, on this _ day of
....: _ , 19 _ . "'.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
By; _
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