ISSUANCE OFADMINISTRATIVE ORDERS FOR IMMEDIATE
REMOVAL ACTIONS
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC
FEBRUARY 84
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REPORT DOCUMENTATION PAGE
Form Approved OMB No. 0704-0188
PE91-139105
2. Report Date:
02/21/84
3. Report Type And Dates Covered:
DIRECTIVE
4. Title And Subtitle: Issuance of Administrative
Orders for Immediate Removal Actions
6. Author(s):
5. Funding Numbers:
7. Performing Organization Names And Addresses:
ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
401 M STREET, SW
WASHINGTON, DC 20460
8. Performing Organization
Report Number:
OSWER DIRECTIVE:
9833.1
9. Sponsoring/Monitoring Agency Name(s)
And Address(es):
ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF EMERGENCY AND REMEDIAL RESPONSE
401 M STREET, SW
WASHINGTON, DC 20460
10. Sponsoring/Monitoring
Agency Report Number:
11. Supplementary Notes:
12a. Distribution/Availability Statement:
12b. Distribution Code:
13. Abstract: Sets forth guidance on issuing administrative orders for
immediate removal actions under CERCLA. This guidance should be used
in conjunction with the recently issued "Guidance on the Use and Issuance
of AdministrativeOrders under Section 106(a) of CERCLA," dated September 8,
1983.
14. Subject Terms: ENFORCEMENT DOCUMENT:
Section 106
15. Number Of Pages:
12
16. Price Code:
17. Report Security
Classication:
18. Page Security
Classication:
19. Abstract Security
Classication:
20. Media:
PAPER
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Attachment VI
Issuance of Administrative Orders for Immediate
il Actions
2/21/»4
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WASHINGTON, O C 10MO
F£6 2 I
0"'Ct Of
IOUQ MMUTC ANO CMIAGINC*
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Haxardous-Material Divisions). Personnel responsible for immediate
•nd planned removals have usually been assigned to the Environment a
Services Division which, as a general rule, has not been assigned
enforcement^personnel.
•Obviously, the ability of a Region to-implement this new
policy requires both close coordination among the immediate
response staff and their colleagues in the'technical enforcement
and regional counsel offices and an organizational structure
capable of developing and issuing quality orders. Regions that
do not currently dedicate technical enforcement staff to their
immediate removal program should assure that appropriate personnel
are in place in the technical enforcement office to implement this
policy and to handle the workload.
I. BACKGROUND , -
CERCLA identifies two types of response actions for which the
Fund can be used: removal actions and remedial actions. The
National Contingency Plan (NCP). further refines the former category
into "immediate" and "planned" removals and describes the process
and procedures foe proceeding with these forms of response. (See
Federal Regi'ster 31180; July 16/1982). Please refer to the attach
a^pendix ToF an out 11ne of the relevant CERCLA and NCP provisions
regarding removal activity', Administrative Orders and enforcement.
Because of the large number of sites which pose a health haza:
the Office of Emergency and Remedial Response,(OERR) defines the
category of immediate removals according to the immediacy and
severity of the hazard to the public health or environment. These
categories establish a guide for the purpose of assessing the
length of time within which the Agency must, respond to the event.
Agency response to situations which require immediate response
(e.g., threats of fire,, explosion or spills) normally takes place
in.a matter of hours or one or two days at the most; Agency respons
to other situations (e.g., rusting barrels that have not yet
begun to leak, holding ponds that may overflow with the advent of
the rainy season) normally takes place during a period which may
range from a week to a month.
"' -^
. This guida^o* is most-applicable to the letter situation; i.e.
the Region» ihouTd consider i ssui ng Administjjj[^^JJ?Tj«jr^i_n_ »11 ua t_
when there i» |t* least one week betweirrifhe tine theTon-scene
Coordinator-{fee) determines that an immediate removal is warranted
and the time that actual on-site response «ust begin. """"
Administrative Orders are a useful enforcement tool in these
types of immediate removals situations, for the following reasons.
First-, they encourage .private p'a'rty response, particularly sine* it
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is OSWER policy to meet, if at all possible, with responsible partie
after the Order is issued if a meeting is requested. The results
of an OWPE analysis of 49 completed immediate removal* indicate
that the efctpsed time between the request for funds and the start
of site response ranged from eight days to more than three weeks
for 24 of the sites. This clearly indicates that there is time to
issue Administrative Orders in appropriate situations, and the
process described in this memorandum can be implemented in as
little time as a week, if necessary. Second, removals require
discrete units of work (e.g., barrel or contaminated soil removal)
which makes responsible party compliance and Agency compliance
monitoring easier. Third, the costs of immediate removals are
generally moderate; this increases' the probability of private
party compliance.
In the event of non-compliance with an Administrative Order,
the Agency is prepared to quickly initiate a Fund-financed response
and seek fines/treble damages from the responsible parties. Since
the treble damages will be based on the Fund dollars expended, these
situations are particularly amenable to establishing treble damage
claims, which the Agency will seek to recover in its $107
cost recovery actions. (The average obligation for 110 prior
immediate removals undertaken by the Agency was approximately
5275,000). Issuance of Administrative Orders for these situations
also may improve the equitable position of the Agency in subsequent
cost recovery cases.
II. CRITERIAFORISSUINCADMINISTRATIVE ORDERS
First, of course, the Agency must meet the legal threshold
that an imminent and substantial endangerment to public health or th
environment may exist.^ information which can be used and evaluated
by the OSC or his supervisor to make this determination include:
1. Notification in accordance with CERCLA $103 (a), (b) or (c
2. Investigations by government authorities conducted
pursuant to CERCLA $104 (e) or other statutory authority.
* the Agency »iit7 5e a b le to p r ope r 1 y doc ume n t anrd "JusTTly^bo tK "1 t s
Assertion that -kn immediate and significant risk of harm to human
life OT healfcb*or to the environment exists and its choice of the
ultimate response action at a site in order to be able to oppose a
challenge to the Order and to successfully litigate any subsequent
cost recovery action. Adequate documentation consists of photograph
samples, monitoring or other documented site analysis. The Agency
should follow chain of custody procedures to maintain the integrity
of samples taken at the site. Please refer to the Cost Recovery
Guidance, issued August 26, 1983 for more detailed guidance. The
Revised Superfund Removal Guidance to be issued in late February
1984 will also provide additional guidance on immediate removal
assessments.
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3. Notification of a release by a federal or state permit
holder when required by the permit.
4. Inventory efforts or random/incidental observation by
government agencies or the public.
If th* facts reach the legal thresholds of CERCLA $106,
several policy criteria for deciding whether to issue an Order
for,; an Immediate removal should be considered. The first of
these is the amount of tine available before site response must
begin. This determination will usually be made by the OSC. An
Order may be appropriate if there is • minimus of one week available
for issuing the Order and meeting with the recipients (see
further below) between the time of the decision to seek funds
for the immediate removal and the initiation of on-sit'e response.
(Of course if an order can be issued- in less than a week the
Regions are not bound by the 'one week minimum". However, the
Regions should always attempt to have 48 - 72 hours available
for the recipients to request and conduct a conference.) '
A second policy criterion is the number of 'potential reci-
pients of the-Order and their financial viability. There should
be a "manageable* number of responsible parties and they should
be collectively capable of undertaking site response; The Regions
will use their best judgement to decide what constitutes a
"manageable" number of responsible parties and assess the capability
of the parties to undertake the response for any individual
immediate removal situation. (For a mort lengthy discussion of
criteria to consider when issuing an Administrative Order, please
refer to the Administrative Order guidance.) When there is a
large number of potentially responsible parties, Orders need not
be issued to all of the parties. In this type of situation the
Region should issue the-Orders only to those parties most likely
to comply. The Region, however, is hot precluded from issuing
Orders to all the parties i! 'it so desires.
These criteria are to be used as general guidelines for deter-
mining whether an Administrative Order should be issued for an
immediate removal. The varying factual circumstances presented
in any potential removal action mandate that each Region conduct
this necessary factual analysis to decide the appropriateness of
an Order.
ii i /PROCESS' FOR ISSUING ADMINISTRATIVE ORDERS
ti*a>ry development and issuance of Administrative orders
for immediate removals will require 'effective coordination among
the OSC, technical enforcement personnel and the legal counsel
in both the Regions and Headquarters. OSWER will not dictate how
the Regions, must organize or adjust personnel in order to
accomplish this task, but it will espect the Regions to have a
system in place which is capable of implementing an administrative
order program for immediate removals.
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The firocedures for developing and issuing orders follow.
The decision by the OSC or his superior to request funds for
an immediate removal also triggers the process for deciding whether
to issue a* Administrative Order,
The OSC will inform the technical enforcement branch (or other
appropriate enforcement personnel if no separate branch exists)
and the Regional Counsel that a request for a Fund-financed immedi-
ate removal is being developed. Appropriate personnel in OERR ani
OWPE should also be informed of this action. While the OSC and his
staff prepare the 10-point document,2 technical enforcement personnt
and the Regional Counsel should begin to identify responsible
parties and assess their financial ability to conduct site cleanup.
The OSC or the Regional Counsel will attempt to orally contact
(with written follow-up) potentially responsible parties in order
to secure private-party response in lieu of the Fund. While previoc
Agency policy was to proceed with Fund-financed response if the
responsible parties refused to act, the Agency will now issue
administrative orders in appropriate circumstances before initiating
Fund action, so long as the site does not pose an unreasonable
xistt of harm to the-public health, welfare or the environment,
Regardless of whether a responsible party agrees or not to
undertake the removal, development of the 10-point document should
proceed as usual. However, the OSC and technical enforcement staff
(in consultation with the Regional Counsel) shall apply the criteria
outlined in Part A (above) to recommend to the Regional Administrate
whether to issue an Administrative Order. The decision to issue
the order rests with the Regional Administrator, subject to the
current delegations.
If the Regional Administrator decides to issue an Administra-
tive order, the Order will be drafted by technical enforcement
personnel with the advice of the Regional Counsel. The technical
information contained in the 10-point document will normally
provide the basis for the Order's "Findings of Fact" while the
Agency's intended response actions will serve as the remedy the
recipient is required to implement.
•^Requests JEoJless than $250,000 can be approved by the Regional
Administrator while requests for more than $250,000 require the
approval of OERR. (It is anticipated that within the month, the
Regional Administrators will be delegated the authority to obligate
up to SI million for removal actions.) The ten point document
itself must justify its cost estimates and be consistent with the
NCP. With the issuance of the Revised Superfund Removal Guidance,
the 10 point document will become an Action Memorandum.
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Since-Administrative orders will normally be issued in situa-
tion* in which site response is not required Cor at least one
week, OSWER policy is to provide recipients when possible en
opportunity, to meet with Agency personnel to discuss the terms of
the Order £nd the means for compliance. Therefore, the Order
•hould include the following provisions:^
• 1.. A statement of the imminent and substantial danger
'pursuant 'to 5106 of CERCLA and the risk of harm under
,$300.65 of the NCP.
2. A statement of the authority of the issuing official
(normally the Regional Administrator) to issue the
Order and why the recipient is liable under $107.
3. The steps the recipient must take to comply with the
order, {following the provisions of the
ten-point document in order to be as specific as
possible)." . v . -•
4. A mandatory timetable for performing and completing
the response.' (The timetable should include at least
one short term .interim deadline, so the Agency will have
the aoility if necessary/ to demonstrate non-compliance
before the project completion date.)
5.-A provision informing the recipient that his duty to oDe
the terms of the order takes effect. 72.hours after he
receives the order.
6. A provision informing the recipient that he may orally
contact the 'Agency to request a conference on the
Order.-The recipient must follow up his oral request
i n writ ing ,'
7. A provision specifying a date certain by which responses
(either oral or written) to the' Order must be received.
8. A provision which states that EPA reserves the right
to undertake the action if emergency circumstances
dictate such action and that* such action in no way
relieves the parties of responsibility for the costs
of 'such actions.
9. A provision which requires: proper chain of custody
procedures to be followed for any testing and sampl:-;,
adequate recordkeeping of activities (so records ma. = s
used as evidence in any future enforcement case),
cooperation from employees of any contractor who e-;;a;e:
Jjv^ite «ctHri"ty, and availability of such employees
±^Tthe U.S. in preparation and trial of a subsequent
enforcement case.
*Re!er to the general Administrative Order Guidance for examp.es
of model orders and conference procedures.
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Under a separate delegations memorandum to the Regions, the
concurrence requirement will be waived for a 1.1 Administrative
Orders for immediate removals with obligations of 51,000,000 or
less. Within two weeks of issuance of the Order, the Regions are
to tend a copy of the final Order to OWPE.
As a natter of policy, in order to increase the likelihood of
compliance, the Agency encourages the convening of a conference
with the recipients of an Administrative order. Since
Administrative Orders will generally be issued for immediate removal
situations which do not require response in less than one week,
the Agency will normally attempt to hold a meeting with the tecipien
if requested by the recipient. The conference should be
convened on an expedited basis (e.g., within 72 hours after the
Order is issued) if the recipient orally requests the conference.
However, the Agency retains the right to "waive" a conference
if immediate response is warranted because of deteriorating condition
at the site. The Regional Administrator shall have the authority
to decide whether to eliminate the conference prior to or following
the issuance of the Administrative Order. If the Regional Administra
waives the opportunity for a personal conference, a regional
representative, must at least give the parties an opportunity to
be heard by telephone before the effective date of the Order. In
general, conferences concerning removal actions should be used to
clarify the requirements of the Order rather than as an opportunity
to negotiate the requirements.
The Agency must create a good administrative record of its
meetings with the recipient of an Order for either enforcement of
the Order or cost recovery after a Fund-financed cleanup. The
Agency participants should prepare a written summary of the
conference containing:
1. The date and participants.
2. A summary of the significant issues raised and arguments/
data used by the recipient to contest the Order.
3. The result of the conference (e.g. agreements reached
with the recipient, indication from the recipient of
an unwillingness to comply with the Order)
The presiding official, (designated by the Regional
Administrator) must also prepare a statement which addresses any
significant arguments raised by the recipient and recommends whether
any modifications to the Order are warranted. (See the Septemoe:
8, 1983 Administrative Order. Guidance for a complete discussion of
the procedures Vrrd "ground rules" for conducting the conference
and the time ftJMes for holding them.)
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• if the recipient agrees to undertake the stipulated response
-measures, the • agreement may be 'in the "form of a Consent Order. Tr.e
OSC will monitor compliance with the Order and recommend additional
enforcement action if the terms of the'Consent Order are breached,
It the recipient does not agree to undertake the. measures contained
in the Order, the Agency will'generally not refer a ease to the
Department-of Justice to force compliance because of the time
constraints presented by the emergency. Rather, the "Fund will be
used for site response and-the recipient(s) will be sued for cose
recovery--!ncluding punitive damages in appropriate cases.
IV.- USE OF THE FUND WHILE THE ADMINISTRATIVE ORDER IS BEING ISSL'ED
» ' - ,. >
Normally, once an Order has been deemed appropriate for an
immediate removal' situation,* the "CERCLA Fund shall not be. used to
undertake a federally-funded immediate removal during the time
period in which the Agency develops the Order, issues it to the
responsible party, and conducts the conference.
However, if site conditions deteriorate-- presenting a corre-
sponding increase in the threat that the site presents— the Fund car
be" used for response while the Administrative Order process continues
In such instances, the Regional Administrator can approve the use
of FUnds below S250K and request the Assistant Administrator/ OSWER,
to release funds if the response work will be greater than S250K.4
The Administrative Order process should continue since the parties
may undertake site response at the next convenient break :n activity.
1 ' w *
Thus, if there are deteriorating conditions at the site, the
OSC should continue all steps necessary for undertaking a Fund-
financed response while the Order is being developed. The 10-pcint
document should be prepared and receive the concurrence of all
officials up through the Regional Administrator or the Director,
OERR.
V -'
f
, - However, no actual obligation of Funds for site response will
normally occur until after the>order has been issued and the con-
ference has been held. Since the Order will only be issued in
situations where «n immediate response can be delayed, there will
normally be time to see the Administrative Order process through
to conclusion. The conference must be held within the time perioi
specified in the Order (which will correspond to/the.time the
Agency has befJS^e the response activity needs to begin'). Since
l£ deteriorating conditions require tffie Fund to respond while
the Order is still being issued, OSWER assumes that the Fund will
take all response actions necessary at the site (e.g., remove ail
barrels, not merely those that may be about to leak).
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th« timing of the obligation will vary according to the estimated
time needed to mobilize equipment and personnel, the ~05C should
work closely with the technical enforcement and Regional Counsel
staff during the drafting of the Order to assure that the time
period established for issuing the Order is synchronised with the
tin* requirements for site response.
If the conference does not result in private party response--or
if changing conditions at the site require accelerated response--the
Fund-financed immediate removal will take place. If Fund-financed
activity does begin, the order may be written to require the potenti<
responsible parties to undertake site activity at the next convenient
break point in activity. If the parties still fail to undertake
the site response activity, enforcement efforts will emphasize cost
recovery with the additional imposition of fines/penalties as
appropriate.
V. COST RECOVERY
The Agency will normally not initiate a civil action in the
event of non-compliance with an Order but instead will seek to
recover costs and damages after a Fund-financed response. Therefore,
while enforcement personnel are carrying out the Administrative
Order process, they should also be aware of the requirements for a
successful cost recovery action. They must be able to document
the following factors (some of which are the same ones necessary
for the issuance of the Administrative Order itself).
1. The need for the immediate removal (evidence of an imminent
and substantial endangerment or threat of endangerment
to public health, welfare or the environment)
2. Liability of the responsible parties (evidence to support
the contention that the parties meet the liability standard
of $107)
3. Proof that the Fund-financed response activity was 'not
inconsistent" with the requirements of the NCP.
4. Documentation of all eligible costs for site-specific Fund
expenditures.
Enforcement personnel must assure sufficient documentation of
these factota fiom the period in which the 10-point document is
developed and Funds are obligated through the actual clean up of
the site. The•«*•'coat recovery requirements must be met regardless
of whether thefe-will be a simple cost recovery action (if no
Admini8trativef0rder is issued) or an action for response costs plus
damages (if the order is not complied with). The Agency must
assure that evidence is preserved for any subsequent enforcement
action. Proper chain of custody procedures must be used for any
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mampling or testing, and adequate records of site activity must se
kept, employees of an/ contractor used for site activity must
cooperate with and be made available to the U.S. in preparation
and trial of any subsequent enforcement action. Enforcement,
program and legal offices should wor* together throughout the
case development.
VI. FOLLOW-UP
This guidance represents a substantial departure from prior
practice; and I expect that it will take some time to implement.
Foe these reasons, I will be reviewing all immediate removals
referred to Headquarters for compliance with this guidance. In
addition, for immediate removals under $250,000, I will ask the
Directors, OWPE and OEfcR to review the compliance with this guidanc<
quarterly, and to advise me accordingly.
Appendix
cc: Gene Luceto, OWPE
William Hedenian, OERR
Kirk Sniff, OECM
Dan Berry, OGC
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APPENDIX
Authority/Requirements/Enforcement of Administrative Orders
for Removal Actions under CERCLA
Under $10fi(a) of CERCLA:
If, EPA, acting on behalf of the President:
determines that there ma^JP e 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
f r om a fa c i 1 i t y
may, after notice to the affected state,
issue such orders as may be necessary to protect
public health and welfare end the environment.
Under $'l06(b) of CERCLA:
EPA may take action in the appropriate U.S. district
court, against any person who willfully violates or
fails or refuses to comply with any Order issued under
$106(a), to enforce such order and
may fine such person not more than $5,000 for each day
such violations occur or such failure to comply continues.
Under $107(c)(3> of CERCLA:
Any person who is liable for a release or threat of release
of a hazardous substance that:
falls w i t hou t su f ficien t cause to properly provide
removal action upon order of the president pursuant to
S106
may be liable to the United States for punitive damages in
an amount at l_ea _st __egu a 1 to and not »pre than thre^e^t.^mes,
the amount of any costs incur redby' the' Fund aJs"Ja"ret"su"it~~
of such failure to take proper action.
-%*',.
Civil actTofi may be commenced against any such person to
recover taM punitive damages. These punitive damages shall
be in addition to any costs recovered from such person
pursuant to $112(c).
Any monies received in punitive damages shalL be deposited
in the Fund.
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APPENDIX PAGE 2
National Contingency Plan Requirements for Immediate Removals
Under $300.65 of the NCP:,
* i • "
( '
Immediate Removal action is appropriate when the lead agency
determines that:
the initiation of the removal action will, prevent or
mitigate immediate and significant risk of ha'rm to
human life or health or to the environment front such
Situations as: . • '
1. Hunan, animal, or food chain exposure to
acutely toxic substances
2. Contamination of dri-nking' water supply
3, Fire and/or explosion
4. Similarly acute situations
Immediate removal action may include but are- not limited to
1. Collecting and analyzing samples to determine
the source and dispersion of^ the hazardous
substance •_',•-•
2, Providing alternative water supplies .
\. » *
- 3. Installing security fencing or other' measures
to limit access . ,
4. Controlling the source' of the release '-'••
V, -'
• 5. Measuring and sampling
6, Moving hazardous substances off-site for' storage,
destruction, treatment or disposal
7. Placing physical barriers to deter the spread
of the release ' •"
,8. Controlling the water discharge from an upstrearr
, __
9. Recommending to the appropriate authorities
evacuation of threatened individuals
10. Using chemicals and other materials- in- accordance
with Supart H to restrain the spread of the
substance and mitigate its effects
11. Executing damage control or salvage operations
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