UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
N DC 2046C
OSWER DIRECTIVE I 9940.4
JUL 6
MEMORANDUM
SUBJECT: Guidance on Administrative Records for RCRA § 3008(h)
Actions
FROM: Bruce M. Diamond, Director
Office of Waste Programs Enforcement
Glenn L. Unterberger, Associate Enforcement Counsel
for Hazardous Waste
Office of Enforcement and Compliane Monitoring
TO: Hazardous Waste Division Directors, Regions I-X
Regional counsels, Regions I-X
Attached is guidance on compiling administrative records for
RCRA § 3008(h) corrective action orders. The 40 C.F.R. Part 24
hearing procedures for § 3008(h) unilateral orders make compiling
good administrative records key to successfully prosecuting these
cases. As we said when this guidance was issued in draft for
your comment, however, many of the underlying concepts for
compiling records are not limited in application to § 3008(h)
administrative records. This guidance can, therefore, assist in
the preparation of records compiled under other authorities.
We would like to thank those of you who commented and
offered suggestions on the draft. We believe we addressed them
all. In addition, we have modified the guidance to answer many
of the questions that are being asked at the workshop on
§ 3008(h) administrative records and hearing procedures that is
traveling to all the Regions. So far, this workshop has been
given in Regions II, III, IV, IX and VIII and will soon be giver.
in Regions V and X and Headquarters.
If you have comments or questions concerning this guidance
or the workshop, please contact Rick Colbert, OWPE, at (FTS)
475-9847.
Attachments
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3SWZR Directive = 994C.
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cc: Elaine Stanley, OWPE
Carrie Wehling, OGC
Steve Botts, OECM
Sven Erik-Kaiser, OWPE/CED
Ken Shuster, OSW
Frank MeAlister, OSW
Linda Southerland, OWPE/FFHWCO
Steve Johnson, Region IX
Danial Shiel, Region VII
Lynn Williams, Region X
Bruce Gelber, DOJ
Tom Bartman, DOJ
Melinda Gould, Region V
Jerri Green, OES (A-101)
RCRA Enforcement Branch Chiefs
RCRA Enforcement Section Chiefs
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9940.4
Guidance on Administrative Records for
RCRA § 3008(h) Actions
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EXCLUSIVE USE OF THIS DOCUMENT
This document is intended solely for the guidance of RCRA
compliance personnel employed by or representing the U.S.
Environmental Protection Agency. It is not intended and does not
constitute rule-making by the Agency, and may not be relied upon
to create a right or benefit, substantive or procedural,
enforceable at lav or in equity, by any person. The Agency may
take any action at variance with the policies or procedures in
this document, or which are not in compliance with internal
office procedures that may be adopted pursuant to it.
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Table of Contents
I. Scope of Guidance. l
II, Purpose of the Administrative Record. ..2
A. Part 24 Hearing Requirements for Unilateral Orders and
Judicial Review 2
B. Public Participation, Oversight, Improved
Decisionmaking and Quality Orders 4
III. Contents of the record ...4
A. General 4
B. Document Sources. 6
C. Guidances and Directives. 10
D. Legal Sources. 10
E. Technical Sources 10
F. Sampling Data.... 11
G. CERCLA Sources 11
H. State Sources 11
I. Information Not Included in the Record. .12
IV. Compiling the Record..... 14
A. when. 14
B. Location 16
C. Organization 16
D. Index 17
V. Maintaining the Record... ..18
A. Public and Respondent Access. is
B. How Long Available. 18
C. Notice of Availability..... 19
D. Controlling the Record. 19
E. Document Copying 20
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9540.4
Appendix A; Federal Register Notice for 40 c.F.R. Part 24 Final
Rule
Appendix B: Model Public Notice of Record Availability
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I. Scope of Guidance
This guidance applies to administrative records compiled for
administrative orders for corrective action issued pursuant to
§ 3008(h) of RCRA. Specifically, it covers administrative
records for unilateral § 3008(h) orders subject to 40 C.F.R. Part
24 hearing procedures (reprinted in Appendix A) and to § 3008(h)
consent orders. This guidance does not address administrative
records for unilateral § 3008(h) orders subject to 40 C.F.R. Part
22 hearing procedures.1
This guidance focuses on the responsibilities of RCRA
enforcement personnel. The extent of those responsibilities
depends on whether an administrative record is for a consent
order or for a unilateral order (subject to Part 24), In
accordance with Part 24 ^requirements for unilateral orders,
enforcement personnel must compile an initial administrative
record and deliver it to the Regional hearing clerk by the date
the unilateral order is served on the respondent. During the
Part 24 process the hearing clerk is responsible for maintaining
the record.2
Consent orders are not subject to the Part 24 process.
Administrative records for these orders are not, therefore,
required to be delivered to and maintained by the hearing clerk.
The administrative record can be a component in a public
involvement strategy for a facility subject to a § 3008(h) order.
V 40 C.F.R. Part 22 governs administrative hearings for
unilateral orders issued under RCRA § 3008(h) authority if the
orders contain RCRA § 3008(a) claims, include a suspension or
revocation of authorization to operate under RCRA § 3005(e) or
seek penalties under RCRA § 3008 (h) for non-compliance with a §
3008(h) order. 40 C.F.R. Part 24 governs unilateral orders
(called "initial orders" in Part 24) not subject to Part 22. (40
C.F.R. § 24,01.)
2/ 40 C.F.R. § 24.03 requires the EPA office issuing a
unilateral § 3008(h) order to deliver the order and
administrative record to the "Clerk designated by the Regional
Administrator." This will generally, if not always, be the
Regional hearing clerk. The hearing clerk is responsible for
maintaining the record and docket for the Part 24 proceeding. In
some Regions, it may be extremely difficult or impossible for the
hearing clerk physically to receive, hold and maintain the record
and the clerk may require the assistance of the office issuing
the order in fulfilling these duties under Part 24. Therefore,
before issuing an order, Regional enforcement personnel should
make arrangements with the hearing clerk for the delivery and
maintenance of the record.
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This guidance includes some discussion of RCRA public involvement
requirements and strategies. For more information on public
involvement, this guidance should be read in conjunction with
"Guidance for Public Involvement in RCRA Section 3008(h)
Actions," OSWER Directive No. 9901.3, May 5, 1987, and "Guidance
on Public Involvement in the RCRA Permitting Program," OSWER
Directive No. 9500.00-1A, January 1986.
II. purposes of the Administrative Record
o Fulfill Part 24 hearing requirements
o Form basis of judicial review
o Facilitate public participation
o Assist oversight
o Improve decisiomnaking and quality of orders
A. Part 24 Hearing..Requirements for Unilateral Orders, and
Jud i cla1 Rgview
An administrative record is the compilation of information
upon which an administrative decision is based. In the context
of Part 24 hearings, the administrative record is the basis of
EPA's adjudication of an owner/operator's objection to the
issuance of a § 3008(h) order. The process for development of
the record under Part 24, however, is different from that for
other administrative adjudications in which RCRA enforcement
personnel are often involved, namely 40 C.F.R. Part 22 hearings
for RCRA § 3008(a) actions.
Part 22 hearings follow a formal adversarial model. Each
party to the proceeding attempts to present only that information
supportive of its position and only at that time when it is most
appropriate for its case. The administrative records for these
decisions are developed as each party, chiefly during the
hearing, submits documents and testimony to the presiding
officer. The administrative hearing procedures found in Part 24
for RCRA § 3008(h) cases depart from this process to some extent.
These differences have important implications to RCRA enforcement
personnel preparing the documentation for a Part 24 hearing.
Part 24 creates streamlined procedures for adjudicating RCRA
§ 3008(h) order disputes. These procedures allow for less
discovery and fewer opportunities to introduce information after
a unilateral order is issued than is the norm for Part 22
hearings. In light of this, Part 24 requires EPA to compile, at
the beginning of the administrative proceedings, an
administrative record on which it bases its initial order and to
include in the record not only documents supporting issuance of
the order, but all relevant documents (excluding privileged
information) considered by EPA in developing and issuing the
order. This might include information that does not always
support EPA's conclusions and remedial decisions. These
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administrative record requirements give respondents an early
opportunity to understand the basis for issuance of the order and
EPA's theory of the case.
By the date the unilateral order is issued, the record is
prepared by EPA enforcement personnel, including Regional
counsel, and submitted to the Regional hearing clerk. This
initial record, now maintained by the clerk, grows as parties
make additional submissions during the hearing process.
Especially for EPA, however, opportunities for additional
submissions are limited or subject to the presiding officer's
discretion. Since the record is the basis of the presiding
officer's recommendation and the Regional Administrator's
decision to accept, modify or withdraw the unilateral order, the
streamlining achieved by Part 24 forces EPA to ensure that the
administrative record be as complete as possible from the start.
Another feature of the Part 24 procedures has similar
implications. Part 24 does not give parties the right to present
and examine witnesses at a hearing. This means that EPA cannot
expect or plan to supplement or fill in gaps in the record by
presenting witnesses. Therefore, testimony that EPA believes is
necessary to its case should instead be in the form of a written
statement or memorandum included in the record submitted to the
hearing clerk when the unilateral order is issued.
Under these circumstances, those compiling the initial
record should act as if this is the first and last opportunity
for EPA to submit documents and information into the record.
Enforcement program personnel should, therefore, seek out the
cooperation and assistance of Regional counsel in compiling the
record to ensure that it will support issuance of the unilateral
order and is otherwise complete.
Part 24 does not address judicial appeals of § 3008(h)
decisions. The administrative record developed for a Part 24
hearing, however, will be the basis of judicial review of a Part
24 decision. If the record is poor or incomplete, the court will
either overturn the decision as arbitrary and capricious or, at
best, hold a trial and reconsider the decision itself. At trial
the court could require discovery of and live testimony fron EPA
personnel and other supplementation of the record. In all cases,
an inadequate record will cause delay and wasted resources.
The above discussion concerns records for unilateral orders.
It can never be assumed, however, that settlement negotiations
will always be successful. An anticipated consent agreement nay,
in fact, become a unilateral order. As a practical matter,
therefore, every order to be issued under § 3008(h) should be
assumed to be a potential unilateral order requiring a record
satisfying Part 24. If enforcement personnel want to be "ready
to go" with a unilateral order as soon it is clear that
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negotiations are unsuccessful, the record also has to be "ready
to go." The comments and issues raised during negotiations by a
facility and EPA responses to them should be memorialized for the
record.
B. Public Participation, Oversight, Improved Decisionmaking and
Orders
The administrative record serves other purposes besides
satisfying Part 24 requirements for unilateral orders. These
other objectives are relevant to both unilateral and consent
orders.
As discussed in the "Guidance for Public Involvement in RCRA
Section 3008 (h) Actions," EPA is committed to providing
meaningful opportunity to the public to be informed of and
participate in decisions that affect them and their communities,
Since the administrative record is the basis for corrective
action decisions, it can be a tool in fulfilling EPA public
involvement objectives. It should also be noted that, regardless
of efforts by EPA to integrate administrative record and public
involvement activities, most documents in the administrative
record are, in any case, available to the public through Freedom
of Information Act (FOIA) requests. EPA's compiling and making
publicly available an administrative record may save EPA's and
the public's time and resources in making and processing FOIA
requests .
One of the most important guides for determining the quality
of § 3008 (h) orders is the administrative record. A review of
the order and record answers questions about the enforceability
of, evidentiary support for and judgment exercised in drafting
and issuing an order. These concerns are shared, in varying
degrees, by EPA Headquarters staff, the public at large and
respondents. This should also, therefore, be a concern of
Regional personnel in their day-to-day activities. By
emphasizing the importance of compiling a good administrative
record, Regions can ensure good decisionmaking'.
III. Contents of the _Record
A. General
The administrative record prepared by enforcement staff for
§ 3008 (h) corrective action orders supports the order's findings
of fact, determinations of law and ordered relief and must
contain all relevant non-privileged documents and oral
information (which has been reduced to writing) considered by EPA
in the process of developing and issuing the order, regardless of
whether the documents support the order.
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Just as 'the order itself must address the elements of a
§ 3008(h) action;
o EPA jurisdiction (issuance by a delegated authority)
o a release into the environment
o of hazardous wastes or hazardous constituents
o from an interim status facility owned or operated by the
respondent
o requiring corrective measures to protect human health or the
environment,
the administrative record must provide factual support for
statements and provisions in the order. For example,
jurisdiction could be supported by copies of delegation orders;
releases by sampling data, inspection reports where evidence of
spills is identified, or statements made by respondents in
correspondence, submissions or notifications to EPA; interim
status by notifications, permit applications or certifications
required by § 3005(e) of RCRA, statements by respondents
contained in those or other submissions or correspondence.3
Without this support, orders issued unilaterally may be modified,
withdrawn or vacated by the Regional Administrator or a court.
Although consent orders are less likely to be challenged,
disputes concerning interpretation of orders could, in some
cases, be more readily resolved (and perhaps avoided) by a
complete record.
Determining what documents are needed to support an order
involves judgment and discretion. For example, if an aspect of
an order is likely to be contested by a respondent, more
supporting documentation nay be needed in the record in that
area. These documents may, in fact, raise positions rejected by
EPA. When they, however, are read in the context of other
documents in the record that give reasons for rejecting these
positions and accepting EPA's position, they may lend support and
credibility to the order. Whatever the specific reason may be
for including in the record a supporting document, a fundamental
V If a respondent failed to satisfy the submission
requirements of § 3005(e)(l), the record will need to show that
the respondent should have had interim status. If statements by
the respondent are insufficient to substantiate this allegation,
the record may need to include deeds, contracts, certifications
from a secretary of state concerning the respondent's corporate
identity, reports showing that respondent treated, stored or
disposed of hazardous wastes when it should have had a permit or
interim status, etc.
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factor _in making that determination is that EPA may have limited
opportunity after an order is issued to make additional
submissions to the record. As previously discussed in II.
Purposes of the Admin istratiye Record, this factor encourages
making the record complete from the beginning.
In addition to documents that support the order, the record
must also include all non-privileged documents and oral
information (which has been reduced to writing) considered by EPA
in developing and issuing an order. Under Part 24, documents
considered by EPA are documents that were relied upon or comments
which EPA solicited and received from respondents or the public
to proposed EPA decisions or actions relevant to the order.
The record prepared by enforcement personnel for RCRA
§ 3008(h) cases is not supposed to be one-sided, reflecting only
EPA's point of view. As already discussed, choosing to include
opposing positions in the record can lend support to the order,
While making that choice in the context of determining what will
or will not support the order involves discretion and judgment,
comments solicited and received by EPA to decisions relevant to
the order must be included, regardless of whether they include
information or opinions that support the position taken by EPA in
the order. It is recormended that an EPA response accompany
them. (Unsolicited comments received by EPA are not required to
be included in the record, but if they are significant, it is
recommended that they be included, along with an EPA response,
since they are likely to be raised at the Part 24 hearing.)
Although a respondent has the opportunity to add information
to the record under the Part 24 hearing procedures, those
procedures, as discussed previously, require and rely on EPA's
effort to include in the initial record all relevant information
considered (relied upon) by the Agency in issuing the order.
Since it cannot always be determined precisely whether specific
information was relied upon, there should be a preference for
including relevant documents in the record when compiling the
record. Questions concerning inclusions in the record should be
referred to Regional counsel.
B._ Document Sources
Documents are writings, drawings, graphs, charts,
photographs, and data compilations from which information car. be
obtained. Physical samples are not documents. Computer disks or
tapes are not documents (and are not part of the record), but
records containing information saved on disks or tapes and
printouts from disks or tapes are documents.
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Various documents may contain relevant information that
should be looked to for inclusion in the administrative record.
These documents may typically be, but are not limited to:
o EPA Investigative Records
Inspection reports
Sampling and analytical data and related chain of
custody and quality control/quality assurance
documentation (discussed further below)
Photographs
Statements by witnesses (factual or expert witnesses)
Statements/interview reports with current or past
facility employees, managers, etc.
Records of leads or complaints by citizens
o Communications with Respondents
Records of conferences or telephone calls
Written communications
Technical documents
o RCRA Sources
Section 3010(a) notifications
Part A or Part B permit applications
Response to § 3007 letter concerning presence of SWMUs
Comprehensive Monitoring Evaluations (CMEs)
Exposure Information Report
Biennial reports
- Waste manifests
Facility Assessments (RFAs)
- Facility Investigations (RFIs)
- Corrective Measures Studies (CMSs)
Responses to § 3007 information requests
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Information obtained through § 3013 orders
Administrative or Judicial Orders (e.g., §§ 3008{a),
3013, 7003) and supporting documentation
Groundwater Task Force reports
Applicable guidances and directives (discussed below)
IRIS reports
Progress reports
EPA release determination
CERCLA Sources (discussed below)
Section 103(c) Notifications of Reportable Quantities
Responses to § 104 information requests
- Preliminary Assessments (PAs)
Site Investigations (Sis)
Hazard Ranking System (HRS) documentation
Remedial Investigation/Feasibility Studies (RI/FS)
Proposed remedial design and action plans
- Records of Decision (RODS)
Field Investigation Team Reports
Action memoranda for removals
State Sources (discussed below)
Investigative records
Studies
Orders
EPA/State or State/respondent communications
Permit applications
Responses to demands for corrective action
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o Other Federal Program Records
Clean Air Act or Clean Water Act permits and permit
applications
TSCA/OSHA inspections
DOD Installation Restoration Program Reports
Reports from the Department of Interior and other
Federal or State Natural Resource Trustees
0 Documents _FlLe
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Other communications with public, including
congressional correspondence
Responses to public comments
Newspaper or magazine articles
This list is not exhaustive and there will likely be other
possible sources for documents included in the record. As
discussed under III._I.^ Documents_Not Included inthe Record.
some documents listed above, or parts of them, may be privileged
and should not be in the record,
C. Guidances andDirectives
EPA guidances or directives that were relied upon in
developing or issuing the order should be part of the
administrative record. They do not, however, have to be
physically in the record if they are referenced in the index and
readily accessible for inspection and copying in the same
building where the administrative record is kept. In determining
whether to include copies of guidances or directives (or portions
of them) in the record, the burden to EPA of making copies of
voluminous or repeatedly used documents should be weighed against
the added burden to those reviewing the record of having to look
elsewhere in the building for these documents. To minimize this
problem, it is recommended that the Region keep a guidance and
directive library in the same area as the administrative record.
D. Legal Sources
Legal sources - statutes, regulations, court or
administrative decisions, notices published in the Federal
Register - are not required to be part of the administrative
record. For legal sources not generally available at a public
law library, such as unreported court cases and administrative
orders or decisions, it is recoinnended that copies be available
for inspection and copying in the building where the
administrative record is kept. This procedure can assist the
respondent and the public in reviewing the record.
£ Technical... Sources
Technical sources such as scientific or engineering
textbooks, manuals or articles that were relied upon in issuing
or developing the order must be part of the administrative
record. Large documents or ones that are frequently referenced
in Agency orders may be treated analogously to EPA guidances or
directives, as discussed above, and not physically placed in the
record.
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F. Sampling Data
Sampling data relied upon by EPA in issuing or enveloping
the order should be in the record. The sampling dat and
sampling chain of custody forms are part of the recr. d but they
may be kept in their original storage location, e.g.,
Environmental Services Division or contract laboratory. Data
summary sheets, however, must be physically located in the
record. The index must list the data summary sheets, reference
the underlying sampling data and chain of custody forms, and
indicate where the underlying data and forms can be found.
G..... _CERc LA Sg urees
If RCRA § 3008(h) action is taken at a site where there is
also Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) activity, information developed for CERCLA
actions will likely be relevant to § 3008(h) decisions and should
be part of the § 3008(h) record. At the same time, information
developed under RCRA, including under § 3008(h) authority, will
likely be included in CERCLA files and administrative records.
The administrative record requirements for CERCLA response
actions are discussed in "Interim Guidance on Administrative
Records for Selection of CERCLA Response Actions," OSWER
Directive No. 9833.3A, dated March 1, 1989.
The often close relationship between RCRA § 3008(h) and
CERCLA activity at the same facility or site will require
coordination to ensure that the requirements of both legal
authorities are efficiently net. Generally, either CERCLA or
RCRA staff will have lead responsibility at a site. With
respect to administrative records, good organization of documents
concerning a facility or site will make compiling records for
RCRA § 3008(h) orders or CERCLA response actions easier.
Compiling a joint § 3008(h)/CERCLA response action administrative
record, however, is not recommended. There are various reasons
for this.
Although some aspects of a RCRA § 3008(h) orders and CERCLA
response selections are similar - such as using or requiring
information as to the nature and extent of contamination or the
ability of certain technologies to effect a cleanup - other
aspects are not. These differences in the decisionmaking process
may affect what goes into an administrative record for a RCRA
§ 3008(h) order or a CERCLA response action and dictate against
compiling joint records.
H. State Sources
States may be taking actions under their own authorities at
facilities that may be subject to § 3008(h) orders. As with
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CERCLA activity, information developed by the State may be
relevant to § 3008 (h) decisions. If this information was relied
upon, it rtust be in the § 30C8(h) adrinistrative record to make
it complete. Inspecting the record rrjst not be a treasure hunt.
Merely referring to or referencing state files or "administrative
records" is generally not sufficient and requiring those
reviewing the record to go to different locations to find the
various pieces is not acceptable. Since many States will not
have one centralized agency collecting documents relevant to the
§ 3008 (h) order, SPA nay have to lock for documents kept in
various agencies, such as these fcr health, agriculture, fish and
wildlife, transportation, etc.
I_. . Information Not Included in the ..Record.
o internal deliberative -material
o attorney work-product
o attorney-client communications
o investigative techniques or procedures
o confidential business infornaticn in the public record
Certain documents, even though they relate to a facility,
night not meet the test for inclusion - they neither support the
order nor were they relied upon cr considered by EPA in
developing or issuing the order and thus are not relevant. These
documents ir.ight be kept in a file for the facility, but they
should not be included in the adrinistrative record for a
§ 3008 (h) order that is compiled, indexed and subject to
inspection and copying by respondents and ner.bers of the public.
(Although these documents are net part of the record, some might
be available to the public through Freedom of Information Act
(FOIA) requests.)
Priyileges that EPA. ~^y c ] ^ : "•• . inter- or intra-agency
documents that are pre-decisicn?.! deliberative material, attorney
work-product, attorney-client ccrrunications and certain law
enforcement records, including those that disclose investigative
techniques and procedures (such as certain enforcement guidances
and manuals) or could reasonably be expected to interfere with
enforcement proceedings, are exempted from disclosure to
respondents and the public and should not be included in the
record. EPA may, however, vaive these privileges (by disclosure
to third parties), but this should not be done without first
consulting Regional counsel .
4'/ Part 24 states that the record be "...exclusive of
privileged internal comnunicatic-.s. " 40 C.F.R. § 24.03. Note
that rules concerning inclusion of privileged documents in
administrative records corpilod v-der CERCLA for selection of
response actions may be different.
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Inter- or intra agency documents that are pre-decisional
deliberative material are frequently drafts, notes or memoranda
expressing opinions or recommendations, as opposed to factual
information, -to staff or management. To be within the privilege,
documents must toe pre-decisional . Drafts are a category of
documents likely to be within the privilege. If the draft
document is expressly adopted in or is used as the final
document, however, or if it is circulated outside the government
(and its contractors) , the draft loses the deliberative process
privilege protection.
Attorney work product includes documents prepared in
anticipation of litigation by an attorney or under an attorney's
supervision, including reports by consultants or program staff
and certain witness statements and interview reports. Since this
privilege does not terminate when a proceeding is concluded,
documents subject to the privilege could include work related to
past enforcement proceedings.
Attorney-client communications, as between Regional counsel,
OECMf OGC or DOJ and EPA program personnel, include information
intended to be kept confidential and made in connection with
obtaining or giving legal advice. In order to retain the
privilege, the information must be treated confidentially and not
be disclosed to third persons.
The above privileges are the most likely to arise in
compiling the record. This is, however, not an exhaustive list
or a complete discussion of privileges. Regional counsel should,
therefore, be consulted concerning the applicability of
privileges. In addition, Regional and Headquarters personnel
responsible for implementing FOIA may be able to provide advice
on privileges.5
Con f ident i a 1 Bus in.es s I n forma ti on... Confidential business
information (CBI) furnished to EPA is subject to a privilege
claimed by the business submitting the information. EPA does not
have the discretion to waive CBI and disclose it to the public.
In fact, there are penalties for improper disclosure of business
information that is entitled to CBI treatment. See 18 U.S.C.
§ 1905,
EPA has issued, under 40 C.F.R. Part 2, Subpart B, detailed
regulations concerning CBI, including the rules for handling
business information which is or may be entitled CBI treatment
and for determinations by EPA of whether information is, in fact,
V The FreedOJL_p_fL__I_nforma tuQn=Case .List. published annually
by the Department of Justice, Office of Information and Privacy,
is a good reference for FOIA and privileges.
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entitled to CBI treatment. Certain statutory provisions may set
different standards for what qualifies as CBI {for example, SARA
Title III) so the statutory provision under which information is
submitted should be referred to when a question concerning CBI
arises. Other statutory provisions may affect rules for non-
disclosure of information. For example, information obtained
under RCRA § 3007 may be disclosed in certain circumstances if
relevant to a proceeding under RCRA, such as issuance of a
§ 3008(h) order. See 40 C.F.R. § 2.305. Before including in the
record material that may be subject to CBI, Regional counsel
should be consulted.
Since CBI is a privilege claimed by the business submitting
the data, that business can waive the claim. EPA can ask the
business to waive CBI or narrow its claim. In addition, IPA may
provide CBI to the business submitting it.
Using privileged Information andCBI. EPA may wish to
include in the administrative record relevant documents protected
from disclosure because of a privilege or CBI. Rather than
waiving a privilege (assuming EPA may do so) or not using the
document and excluding it from the record, EPA can consider
certain alternatives. First, documents can be included in a
confidential portion of the administrative record that is
withheld from public disclosure but is available to the
respondent. This can be used with CBI submitted by the
respondent since CBI treatment is maintained. For most other
privileges, however, disclosure to the respondent may waive EPA's
privilege. All documents placed in the confidential portion of
the administrative record must be identified in the
administrative record index, which is available to the public.
Second, information contained in an excluded document can,
if feasible, be extracted and placed in the record available to
the public and the respondent. This can be done by summarizing
the relevant information or editing out the information not to be
made public. For example, factual information contained in a
draft document subject to the privilege for inter- or intra-
agency pre-decisional deliberative material can be extracted into
another document and placed in the record. If EPA follows the
first alternative and creates a confidential portion of the
record available to the respondent, it should also attempt to
extract from that record non-protected information for public
disclosure.
V. Compiling the Record
A. when
The record must be compiled and indexed on or before the
date a § 3008(h) unilateral order is served on. a respondent (40
- 14 -
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C.F.R. .§ 24.03). A record should be compiled and indexed for
consent orders when they are issued.
Ideally-, the record should be compiled as documents and
information are obtained by EPA. The process of indexing,
organizing and updating the record can help make EPA
decisionmaking more orderly and efficient. Following such a
process will make it easier for staff newly assigned to work on a
case to become familiar with it and allows staff already assigned
to a case to leave one case to work on another. Managers also
will have the flexibility to require these moves.
Public interest concerning activities at a facility should
be considered when deciding when to begin compiling a record. If
there is exceptional public interest and there has been or may be
requests for access to documents in a facility file, beginning to
compile a record early and making it available to the public is
advisable. The final compilation of the record can be done
before the order is issued.
As an alternative to beginning to compile the record early
in the process, Regions could make available to the public
especially important documents related to corrective action.
These could include the RCRA Facility Assessment (RFA), the RCRA
Facility Investigation (RFI) Report and the Corrective Measures
Study (CMS) Report. The public comment period for selection of a
corrective action plan is a critical point for public involvement
and making these documents publicly available could facilitate
the process. Regions are very strongly urged to adopt this
approach for the comment period. Note that the comments received
by EPA, along with its responses, must be included in the record.
The complete § 3008(h) corrective action process will not
generally involve a single order or a single event for
implementation. The process is dynamic. Documents and
information resulting from earlier activities at a facility may
be used to build administrative records for subsequent actions.
For example, orders will generally be issued in two stages - the
RCRA Facility Investigation (RFI) through the Corrective Measures
Study (CMS) as one order, and the Corrective Measures
Implementation (CMI) as a second order - with the second building
on the first. There may be additional orders required to enforce
implementation a § 3008(h) order. In addition, many activities,
some over extended periods of time, will be occurring during
implementation. The information may be of interest or necessary
to those following or overseeing corrective action activities at
a facility.
Regions should, therefore, keep with the record for the
final order (i.e., the record accompanying issuance of a consent
order or the record as it stands after completion of Part 24
proceedings) relevant documents obtained during implementation of
- 15 -
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the order. Technically, these post-decisional documents are not
part of the record for the final order and should be identified
as supplemental to the record for the final order.
B. Location
The record should be located in the Regional Office issuing
the order. (For unilateral orders, the record must be maintained
by the Regional hearing clerk at the Regional office during the
Part 24 process). If there is substantial public interest in a
facility, Regions should consider keeping additional copies of
the record (or a subset of documents from it) near the facility -
a library, for example, or other information repository - or at a
state environmental office. If RCRA permitting or CERCLA has
created an information repository at or near the site, the Region
should consider using the same location.
It should be noted that CERCLA regulations require that the
complete administrative record file be kept at the EPA Regional
office and a copy of this file, with some exceptions, be located
at or near the site. At Federa1 f aci 1ities where CERCLA
authorities are being used, CERCLA administrative records are
compiled by the Federal agency in accordance with CERCLA
administrative record and public participation requirements.
However, the complete record is located at the Federal agency
office comparable to an EPA Regional office, rather than at the
EPA office. If a § 3008(h) order is issued to a Federal
facility, regardless of whether CERCLA activity is also
occurring, EPA retains responsibility for compiling the § 3008(h)
record and locating it at the EPA Regional office.
C. Organiz_ation
The record must be in some logical order. The record is
supposed to be a working file that allows users to locate
documents relevant to their interests. A logical order helps
achieve this goal.
The simplest and often most useful organization is arranging
all documents chronologically. Even if documents are arranged by
subject areas in sub-files, documents should be arranged
chronologically within each sub-file. Generally, documents
should be put in the record according to the date they were
completed, not received by EPA. The date of EPA's receipt of a
document is, however, often relevant and Regions should make it
standard practice to stamp the date of receipt on all docunents.
There are innumerable subject areas that can be used to
organize the record into sub-files. The headings found under
Document Sources in this guidance are one possible set of
subjects. Other possibilities include arranging the record
~" 16 *""
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according to the elements of the order or segregating documents
relating specifically to the facility from other documents, such
as guidances, directives or technical sources. When certain
issues can be identified beforehand as being of special interest
or subject to dispute, they can be the basis for record division.
The choice of file organisation can be a matter of personal
preference. For example, an attorney handling a § 3008(h)
hearing may prefer, in presenting the record to the hearing
officer, one file organization over another. As long as the
chosen organization is logical, it is acceptable,
Each document should be given a document number or letter.
This number should be marked on the front of the document or the
blank flip side of the first page. The number should be a serial
number showing the document's location in the entire record or
within some sub-file. The nunber must be unique to the document
so that documents with similar descriptions, titles or dates can
be differentiated. It is recommended that each page of the
record be numbered in series.
D. Index
The record must be indexed. The index serves several
functions. It must, at a minimum, identify all documents in the
record and their location. By knowing what is supposed to be in
the record and where, EPA is better able to prevent the
unauthorized addition or removal of documents from the record by
those inspecting it. The index also helps the user to locate
documents in the record.
An index may be little more than a table of contents that
tracks record organization. The index, however, can also
supplement organization. For example, if the record is arranged
chronologically, the index could be arranged by subject. This
gives the user two ways of locating documents in the record.
If the resources are available, various indexes can be
created by using a computer database management system.
Documents comprising the record can be coded, according to various
fields, and indexes created by the choice of fields. A
chronological index, for example, could be created using the date
field.
Regardless of the type of index used, it should contain the
following information for each document;
o Description of the document. This should include the
document's title, if any, and a very brief description
identifying a document's subject or contents. This
description should enable differentiating the document from
other documents in the record.
- 17 -
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940, 4
o Identity of the author and recipient. It is recommended
that their affiliations or titles also be included,
o Date. "Give the date (or approximate date} that the document
was completed or generated.
o Location of the document. If the document is physically in
the record, give the sub-file name, if any, and the
document's number (see Organization, above). If the
document is not physically in the file (such as an EPA
guidance or CBI that is in a confidential file), identify
where it is located.
o Number of pages in document.
V._ .Maintaining Jthe_ Record
A.. .Public and Respondent Access
During the time a unilateral § 3008(h) order is subject to
the 40 C.F.R. Part 24 procedures, the hearing clerk must satisfy
Part 24 administrative record requirements for public and
respondent access to the record.
The administrative record for consent orders and unilateral
orders after the Part 24 process is completed should be
accessible to the respondent and the public for inspection at the
Regional office during normal business hours, for example, 9 A.M.
to 4 P.M., Monday through Friday. Every effort should be made to
make the record available without requiring the respondent or
members of the public to give EPA prior notice or make an
appointment. Resource shortages, both personnel and space, may,
however, justify a reasonable prior notice requirement.
Even if it adopts such a requirement, the Region should
attempt to continue to work toward obviating the need for
requiring prior notice. If continual need for access to a
specific record is anticipated, as where there is substantial
public interest in a facility's activities, an attempt should be
made to arrange for access without requiring prior public or
respondent notice to the Region.
In no case should the person seeking access to the record
demonstrate need or be required to pay a search or access fee.
(See Document Copy ing, below.)
B._ -How Long Available
The record for consent orders and unilateral orders that are
final after the Part 24 process should be available to the public
and the respondent until the respondent's obligations under the
order are satisfied and the order terminated. Order
- 18 -
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,1 r«
implementation may occur over a long period and public interest
in having easy access to the record may eventually decline, as
when a remedy is in a routine maintenance and monitoring phase.
Taking this into account, Regions may wish to balance the
resources required for keeping the record at the Regional Office
against archiving it elsewhere and retrieving it when a specific
request for access is made.
C. Notice of Availability
At or. before the time the administrative record for a
unilateral order is delivered to the hearing clerk or a consent
order is issued, the Region should notify the public of the
availability of the record for inspection. (Appendix B contains
a model notice.) The procedures for public notice found in
"Guidance on Public Involvement in the RCRA Permitting Program,"
should be followed. Regions should also consider providing
additional notices for the availability of the record at other
times. For example, if the Region has started compiling the
record and making it publicly available prior to issuance of an
order, such as during the comment period for selection of the
corrective measure, the public should be notified. Notices
should contain any requirement for those seeking to review the
record to contact Regional personnel beforehand.
Unilateral orders must notify respondents of the
availability of the record.
D. Controlling the Record
Access to the record should be controlled to ensure its
continued integrity. There should be a sign-in log for those
inspecting the record. The log should ask for the individual's
name, address, phone number, and affiliation, and also record
which administrative record (there may be records for other cases
at the same location) was inspected and any copying fee collected
or waived (see Document Copying, below).
Agency personnel should be at or near the area where a
record is being reviewed. They can provide assistance to those
reviewing the record and also help supervise the area to prevent
documents being lost or damaged or the record becoming
disorganized. After a record has been inspected, it should be
checked to determine that all documents have been returned
intact.
The record available for public and respondent inspection
should be a duplicate copy of the record. It is very strongly
recommended that EPA request that respondents provide at least
one additional copy of their submissions for inclusion in the
-------
Q C f. ^
' / V U * <-t
publicly available record. The master copy of the record should
be kept by the Agency.
E. Document Copying
The record at the Regional Office should be available to the
public and respondent for copying. SPA can have a copying
machine available for public use where the record is located, or
the Agency can make copies for requestors.
If EPA makes partial or complete copies of the record
available for inspection in addition to the one at the Regional
office, EPA should also attempt to have copying facilities
available at these locations.
Regions should follow FOIA requirements and policies in
determining the appropriate charge for copying. Generally,
copying fees should be waived for other Federal agencies, members
of congress and EPA contractors or grantees. For all other
persons or entities, including respondents, the duplication cost
for paper copies of paper originals is $.15 per page, actual cost
for duplicating photographs and non-paper originals. No fee
should be charged to anyone for the first 100 copies of paper
originals. In addition to these free copies, there is an
administrative fee waiver for subsequent copying costs up to
$25.00. (At $.15 per page, this administrative fee waiver covers
another 166 copies.) The reason for this waiver is that the
Agency does not collect a fee if the cost of processing and
collecting the fee exceeds the amount it is permitted to collect.
The Agency has determined that $25.00 is the cost of collecting
and processing fees. There is no administrative fee waiver if
copying costs exceed $25.00. Therefore, if more than 266 copies
are made (100 free copies plus 166 copies under the
administrative fee waiver), the $.15 per page charge should apply
to all copies beyond the free first 100 copies.
- 20 -
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9940-4
Appendix A: Federal Register Notice for 40 c.F.R. Part 24 Final
Rule
-------
Wednesday-
April 13, 1S88
Part V
Environmental
'Protection Agency
40 CFR Parts 22 and 24
Issuance of and Administrative Hearings
on RCRA Section 3008(h) Corrective
Action Orders for Hazardous Waste
Management; Final Rule
-------
22233 Federal Register / Vc! S3 \o "", I V/ecnesdV.- .\z''l 53 1936 / Rules and Rcg-,ia::cr,s
ENVIRONMENTAL PBOTICTICN
AGENCY
J0CFR Pans 22 and 24
Issuance of and
Hearings on RCRA Stctlon 3006(hl
Corrective- Action 0ra»rs for
Hazardous Waste Management
Facilities
: Environmental Protection
Agerisy (EPA;.
*CTIOM: F'rul rJe.
SUMMARY: This r\ile *s;,jOl,shes
procedures whic.i are to govern iha
conduct of administrative hearings
requested pursuant 13 section 3008(bj of
the Solid Wojit Disposal Act. dS
amended by the Resource Cjrservaiion
and Recovery Ac: (RCRAi. by recipients
of ir.ienrr. status corrective action orders
issued under authority contained in
section 3008'hjofRCR.V
iFrteTivt OATI: This rule becorr.es
effective on April U. 196S,
roM r u«THf « INFORMATION coMTAcr
Ste-.t Baits Mail Code LE-1MS. Office
of E~:srceiT.cr.: and Ccrrpl.ance
Monuocing. Was;e Divis.on, L' S.
Environment*! Prsiicucn Aaer.cy 401 M
•tet SW , Washington. DC* 20460.
(. Authority
Tcdav s final rule has been issued
under ajtr-oriiy of sections 200i n
response to public comment trie Agency
has made two technical cr.angts in the
regulations. First, a provision has been
added requiring ihe responses to
briefly indicate in its response to the
initial order the basis upon *hich it
disputes any given factual or :ts,dl
determination or relief provision in she
ordw. "Hui wa$ done pnneipa'.'y to
ensure that in a Subpa.". B proceeding.
where respondent chocies noi to File
pre-heartng submission! ihe Agency
would have some notice pror -o fiear.rtg
of th« reasons why responc*-,t is
challenging the order. Seeor.i'.> a
provision hat been inserted *hicr!
would allow the Presiding C"":f -a
Subp*"! 8 hearing to pose s,.esp jis to
representatives of either pa-'v 7-v.i was
done to correct an inadvt.*te"i :<~ ssioa
in Use proposed rule and •» ; j- S •••?
Presiding Officer's aa:r>e- • *:.-».e
-------
Federal Register / Vol. S3, No- 71 I Wednesday Aenl 13, 1968 / Rules and Regulations
I22S7
li'gj! ur fjciual usues which the parties
hjve nei Juily developed hearings on 30C8!h) orders
fcc,yi,"es me Agency 10 weigh the factors
• ::ed in . Vc ::.•:« ;vs v £.'dr:sas. As here
^ertinen, Most factors are. on trie one
r.snd EPA s interest in avoiding lit she
-<»souiCf OLii'ay and (2) delay in
providing response 10 releases of
"jia.*do-s was:e/consiituen!»
-»cessi idled by preparation for and
iriiciprftian .n full adiudicatory
-".ir-.r.gs and. on ihe oiner. (1J die coin
c respondent of undertaking coireettve
-etson aid \2i she ruks :hat re»pondent
.-"2ni be fj.-t.ed 10 unnecessarily incur
•=t,ci ecus because the rules
;:i>malga;ed here today do not ronidtn
i 'cquati ?'ro% ision for the resolution of
'.-sse facijdl disputes. >'.mch ^re Ime.'y
• • arise at hearing.
Locking ?;rsi at sne pu'«n-,ji bjrden
• n j.;d fisus :a respondent. EPA ncies
'>-»t trm cos:s of cnrrecr.'v* acnon 10 be
.. .pos.'d fin rESpoiitJer.l din jx e^p"<.ted
frc-n :r.e r»ij(ueiv n-.inr.r :cs!i
fd wiih iTiylemrnio'ion of
contam.ndjionj or srrali studies of th*
naiyre ana extent si eofitaminaiion
produced by l.rrwec reieases of
hdtaruous wgsti>,>e3,-siiiuents to tng
very n',gn easts IwhicJi will iome:ime»
be measured in the rr,;ilions af dci=ars)
of impiemir.unf technically comptex
remedies at highly contaminated sites.
As commenters have pointed out and
the Agency acknowledged in the
preamble to the proposed rule. EPA
anticipates that 3008fh) proceeding) will
certainly preseni some factual issues for
resolution. However. EPA believes that
300S(h) cas«s will present fewer factual
issues than the typical case involving an
RCRA section 3008(al compliance order,
where qy»stions as to whether certain
events or violations occurred, the timing
of such fvenis/vioiaiians. the
seriousness of the violation, the
economic bencf.t (o respondent of the
violation, etc. are rout.nely raned. More
importantly. EPA believes that the
factual disputes arising in the course of
d 3C305fh) proceeding w:JI relate almost
en'.;r?!y :o tcchr.ic^l (or policy] matters
oi jusi the t>p« highlighted by
commenters (e g., has a release of
hazardous waste/constituents occurred?
Are the corrective measures proposed
by EPA warrar-.sea'' Where has
contamination migrated? Is EPA's
characterization of hydrogeologicat
conditions at the site accurate?). In
resolving such technical disputes there
will be ln:.e need to establish witness
veracity or credibility through
observation of a witness's demeanor on
cress-examination. On the contrary, we
beheve. and ;*e structure of these rules
is premised on our beiitf, that such
technical questions can just as easily
(perhaps more effectively) bs resolved
through anal; s,i of the administrative
record and the written submissions and
oral itaiements of the parlies By the
same token, formal discovery x.ii no! be
necessary because, as explained later.
respondent will have access to the
emirt administrative record {exclusive
of certain privileged material*)
underlying the Agency's order.
Tyrning now to the Agency's interest
in expediting cleanups and minim::tng
the costs n ir-urs m participating m
3006(h) proceedings. £PA notes first
that, in otder to protsei human health
ir.d the environment, cleanups
compelled p-irsuarn to RCRA iecnon
300jJ|h) will of:en M«-.B (o be txr-e^.ted
in iast the way -hai '-emovji" actions
|jnd Icsi often r'reSii;' actions)
'ed pu.'sudn! 'j :he prov:»ior.s 01
correc'ive rrif^^res '* g .
n of a f^nce xrounJ ir«
Response Ccrnpe.isa'ion and
Act of 1MO as a-e-srd
**pedi;cd, L^ni1-, itjmi
proceedings, which include extensive
discovery and cross-eiamination, art
not only unnecessary from a due
process standpoint: they ire also
incompatible with (he need to
accomplish cleanups quickly before
contamination tprvadf or adverse
health/environmental impacts occur,
EPA also anticipates that the resource
burden :hat would otherwise be
imposed on the Agency by the need to
prepare for and participate m full
adiudicatory heanngs will be
substantially eased by adoption ^nd use
of the instant hearing procedure*. Ir, the
full adjudicafory hearings held jn RCRA
section 30Q8!*) orders, EPA must often
produce expert witnesses (e.g .
lexicologists, hydrogeologists, financ^l
analysts) and Agency employees to
testify as to how inspections'were
conducted, records compiled and other
similar matters. These witnesses must
be paid to travel to hearings, must be
prepared for hearing, and will be lost for
other useful purposes during the penod
when '.hey must be ava.labie for
hearing. The attorneys representing the
Agency in such adjudicrftary hearings
must devote considerable utr.e to
preparing witnesses, preparing direct
and ofosi-exanunauon, «id oilier
activities not required for the informal
hearings provided for herein. Similar
travel, witness, hearing prepafatian. and
related costs would be required if the
Agency were to provide a Par! Z2
hearing :o the recipient of a 30C8|ri)
order. It is protected that roughly naif of
the cost to the Agency of participating in
full adiudicatory hearings will be Saved
by holding hearings under ihe
procedures we promulgate today These
praiections are h*sed not cniy or;
Agency experience with RCRA and
other administrative hearings cund-.cted
pursuant to Part 22 but aiso on Asency
experience under CERCLA. Receri
amfr.dmtnti toCEJICLA petrr.r, :r\«
Agency to submit the administrauve
record supporting the Agency s rened-/
selection des-isions to a cs jn in i.ew of
presenting ihe stream of Agency
employees and experts neeaea is
substantiate such remedy se.ecnon
d«eiiions «n the past. Th* j4vtr.es ;n
litigation josis to the Agency fram
adoption cf this new procedure 'r.^e
bean fubiiair.ial—on ihe order o.' 50
percent or mor* of previous tstjis
Accordingly, n ;J not s.riipiy
considerations of corver.ie-.c« FO :~e
Agency thai have promp-ed -.s •= as-'o'
Uss formal he^finf praeeC-irf i !;r
30CS(hl prjcsedinss. Ra.^ef '-.a;
decision was based OR n: •-.» ••*•" '-
respond ^ jickly to re'eas?j o.'
-------
fact (hat ihe casts ro the Agency of
adopting forma! atiudicaiory
procedures would be sue,- as :a
Significant impair the Agency i ability
10 enforce the provisions ol RCRA
section 3008fhj. and (3) ouf ccnvicticn
triat :he factual issues presenied 1,1 such
process.-gs will bt technical m nature
and hence susceptible to resolution
throjgh the v*niien procedures and
ir.farrr-.d; hearing provided lor under ihe
rules
2. Comment. The language of and
legislative history surreuncing RCRA
section 30G8i'h] require thai the same
k:nd of hearing be held on RCRA section
2008faJ and 3QC8fh) orders. The
statement in RCRA lection 3008(b) thai
me Ager.cy may issue subpoenas for the
attendance of witnesses and production
of documenis and may promulgate
discovery procedures indicates that
Congress imer.ded that fuli adiudicatory
hearings ^culc be held on a;! 3008
orden.
Response The plain language of
secnor, 3006(bj requires nothing rnort
than a "public hearing." The only
reievam piece of legislative history is
ihe statemeni of Senator Chafee.
sponsor of she new languge in HS'A'A
• mending 200S(bl. that "thai procedures
ses fortn in subsection (b) [of section
200fl; are mace applicable is order;
issued under [section 2006(h)]." This
slalement does not [as comrnenters
suggest! refer to the Pirt ZZ hearing
procedures promulgated by EPA
pursuan: is authority contained in
seciion 3QCHifb) ba: rather merely
indicates that those p'scedu.-ss :n
30081b; making orders final unless
withi.-. 30 days of issuance respondent
request a rearing have been extended
10 300S!h! crsers as well as 3008ia!
ordt.'s.
As ;o 'he suggestion (hat Congress
• nienaed full aaiudicator> hearing] it
should be sufficient to poml out thai
Congress said in 3008ib! that the Agency
"rr.jy " promulgate discovery rules.
clearly suggesting thai hearing which
did not contain this feature most
commo-ilv associated wiih adjudicatory
hearings wouid alia b« acceptable.
Sir,:? subpoenas are routinely employed
in legislative as well at adjudicator?
hearings, ire affirmation (in secnon
300«|b)j of the Agency's righi 10 usue
subpoenas also m no way implies a
Congressional preference for full
adjudicator) hearings. Thus. EPA
cannnues ;o seiieve ihat the less form*I
procedure promulgated today is fully
csnsijient wiih ;h« sututofv lang.age uf
section of section 3006 and
Congressional intent.
3 Carnrer.i Given the potor.ttj-'ly
igh cost of conducting a remed.u!
investiga::sn and impiernenting ir.ienm
correciive T.eaiutes. there is no basis
for affording respondent less process in
S-.spari B ("study order' ) hearings ihan
in Subpart C ("remedy order") hearings
Respsr.se The changes made ;n
response to comments narrow the
differences between Subpart B and C
hearings. The principal remaining
distinction is ihat the Subpari C
procedures permit respondent to pose
wntien questions to EPA. whereas the
Subpart B procedures do no). THt •
Subpart C procedures also requ:re the
filing cf certain pre-heanr.g submissions.
while the Subpart B procedures make
this optional The Subpart i respondent
u thus allowed fewer opportunities than
the Subpart C respondent to ask
queat:ons relating to material factual
issues and the explore the basis for the
order
EPA believes (his distinction is
' warranted because at ihe stage of a
3008(h| proceeding at which a remedial
invest,gaiion or interim corrective
measures are ordered there it generally
very little known about the nature and
extent of contamination at the facility
and thus very little for the parties to
argue o%ef Facival disputes at (his stage
can be expected to focus on the question
of whether a release has occyrred. By
the same taken an Agency order
directing a respondent to undertake M
Corrective Measures Study (which wilt
simply explore and compare remedial
alternatives) is expected to raise few
issues of fa;!. The opportunities
afforded respondent to review the order
and administrative* record, make written
pre-neartr.g suorr.issions. request an
informal settlement conference ai which
the basis for the Agency order car, be
explored m some dep'h. make oral
presentations at hearing, and (with the
Presiding Officer's permission] pose
questions ts 'he Agency's
repreientntivels) at hearing should :n
ccrr.binat.ors be sufficient to (1)
thoroughly inform respondent as to the
batis of trie Agency s order, and (21
permit respondent :a respond m rieiai!
to the factual and :eca! arguments which
underlie the Agency i order. Also. EPA
expects that tne orders which will be the
subiect of a S^bpart B hearing will
ordinarily hive a lesi significant impact
on responde-i! s frcperty interests than
the rimcfliji orders sub;rct to the
Subpari C procedures
/^ry Trie!
4. CO~~G.": The fereni Supreme
Court decsion .n. fu,Y^ L'n'ied S.'C'cs
95 L Ed 22 36.5 ,;i98'', requires thai
respondent >je affcrdtd a jury trial in
any processing .n wh:if, a eml per.aiiy
is sougnt
rsf Footnote 4 to the opinion ;
ihe court m fu/.' reads as folioui The
court has also considtted ir,« ptacv.ca!
limitations o( a mry tf.ii and us
Functional compatibility *Mn
proceedings ouiside traditional eou.vs e
law m hold.ng intt (he Seventh
Amendment is not applicable to
administrative proceedings." Id at 3~3.
n,4. Accordingly, the decision in Tull ha
no bearing on the requirement in the
rule that hearings on 30oaihi orders
seeking penaliies be held under the
existing hearing procedures contained a
Part 22,
Issae.ice of the Initial Order
S. CammtncThe rules should spell
out more clearly which EPA official will
issue the initial lOoathl order.
Response: The unspoken but apparent
concern of the comme*t*r is that a iov»-
level Agency official acting without
proper review might be permitted under
the rules to issue an initial 30O8|h) order
The penineni Agency RCRA delegation
[No, ft-32] empowers tht Regional
Administrator and Assistant
Administrator for Solid Waste and
Emergency Response 10 taaut initial
3008 (K; orders and allows iheit
individuals to redelegite that tuthcnty
Given ihe fact that authoniy conferred
on Regional Administrators to issue
RCRA section 30061 h! orders has
uniformly been reposed (by
redelegition) in individuals at or above
the Hazardous Waste D via. on Director
level, we believe that there is no cause
for concern that Regional
Administrators or the Assistant
Administrator wi;l redeltgate authority
to issue corrective action oreers to low-
level Agency officials Accordingly, we
have deodtd that the actual designation
of the official who •*>,'. \ issue miuat
3006(h| orders should eomir.je to be left
m the rules, «S it is m trie pir';n?:tl
Agency delegation, to the Rt|:cr.al
Adrninislrators and the Aisntani
Administrator for Sohd Vvajie gnd
Emergency Response This approach
comports with tnat now f;uowed in the
Par! 22 hearing procedures
of Orders. C*c s.c~s ft^iirgs
6. Comment; In ordef 13 eiim.raie the
poisibilily ihat oraers dec sson*. or
Other documents .Tiigni 5* served on
lour-level corporate of'-c-.a'.s "-.t nj.es
should require that «*»vi:« ;* -,ade
upon that repreier.tai'x a! -»i;or:den!
designated to recei* e »«">• :» :'• I'ocsvs
not simply on response*- i
"representative "
Re spans* The .-jiei tt -t- ieJ .'o^io**
the Part 22 proeec.r* .-:•• * - :•.
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994C-4
Federal Register / Vol. S3. No. ?i > Wednesday. A3-:l 13. 1986 / Rules and Regulations
service is 13 t;« made upon respondent.
h'j representative, or. in the ease of a
corpora uon. partnership, or
unincorporated association, upon an
officer, partner, managingorgener.il
agent, or oiher person authorized by
appointment or Federal or State luw to
receive service of process.
Choice of Hearing Procedures
7 Cotntf.eM: The rules should employ
a clearer standard for determining when
hearings on 30C8(h) orders directing
respondent to undertake studies and
interim corrective measures are to be
held under the Sub'part B or Subpdri C
procedures. The respondent should have
input into the decision as to which
hearing procedure! are to be utiuzej.
Response. The rules currently provide
that hearings on orders requiring
respondent to undertake studies and
interim correct;1.* measures are to be
held under the Subpart B procedures, if
such interim measures are neither cosily
nor technically eomple* and ire needed
to proiect human health and the
environment prior to development of a
permanent remedy The thought behind
adcpncn cf :his standard was iha: a
hearing which would otherwise be
conducted under the Subpart B
procedures should not be required to be
heid uncer the more limt-consurr.ir.g
and formal Subpart C procedures.
merely because the srder :n question
directed respondent lo irr.plemer.i
cer:a:n limned corrective measures
wr,;c.i c,a not place rr.aior property
i!veres:s at s:a*.e and were not fraught
with carr.slex technical questions for
wn.:.". she Stbpari C procedures would
ae —ore appropriate EPA continues to
iene^c trdt '.".ess criteria provide the
appropriate bis.s for deiermming which
hearing procedures to employ The fact
ir.a: these enter.a require the
it-c,s.-r.m»**r to rr.i*e occasional
subjective iuJ»~ier.is is not in itself
grour.cs for abandoning or modifying the
criteria
Ir. cr";- r,dica:e in i.le initial order which
hearing procec-jrts n believti to be
upprocriais and tne reasons therefore.
and (21 la permit respondent to provide
us views on this question with its
response to the initial oruer and request
r3r hearing The Presiding Officer can
'her. »«ign the positions of both p.irties
in dec,ding which procedures to employ.
The Presiding Officer can inform the
j-mies which hearing procedures will be
u«*d at me same time thai he transmits
in them information concerning the djtr.
i:me. location, and
hearing
Dss^'.'.rss £»:cb!.t
for :he
cd :n :.';* ft^.'e
8 CU.TT.— O.I.'; The deadlines
establish-. -j in the ruie (and in particular
the provii.gn whicn permits EPA
responses to written questions to come
in as late as 7 days before hearmg) do
not afford respondent adequate time to
prepare for a hearmg.
Response: The time frames wiihm
which respondent must prepare us ease
do not seem unduly tight. Respondent
does not even have to request a hearing
for 30 days after service cf the initial
order. Respondent thus has 30 days plus
the period between receipt of its hearing
request and the hearing date 10 prepare
for hearing. If the Presiding Officer
determines that respondent s ability to
prepare is unfairly prejudiced by any
deadline other than that for requesting a
hearing or by ihe fact thai EPA
responses to written questions will come
in too late to permit proper review and
rtsponse by respondent before hearing.
She rules permit the Presiding Officer to
adi'.si the pre-hearing schedule
acsordire.y or postpone tne hejr:r.|
date.
9 Ccrr'rr.e.t!: The rules should be
changed so as to perm:!, where good
cause ii mown, extensions in the time
pensd within which a hearing must be
requested.
Response- Since RCRA secnon 30Q8(b!
provides that orders issued under
section 30C8 shall become final unless
no later than 30 days frsm service
respondent requests a nesr.rg, the
Ager.cy is not a: liberty to extend this
particular ceadlir.e.
Qua,':rt:s::o.-,s yfitte Pres:3:r,£ O'V,CC.-
10. Ctjrr.merti. The rules should require
thai the Presiding Officer always be in
Admimsira;ive Law Judge or at least an
attorney and should contain additional
guarantees of the neutrality- of the
Presiding Officer The :u:es as drafted
are unfair :n tnai thev wou.d permit an
EPA enforiemeni arurnin urcijding
one w.;n inti-natc prior c^r'^tt iv:;h a
proccec'.'.s srort of s.*d:':,r.| tne initial
order) to sene »s the Piesiding Officer
in either a Syfapart B or C hearing
Respa.-se In new of IIS she fact that
the Pres.ci.ig Officer will be called upon
to prepare a recommended decision
which, in the cas« where it is adopted
and signed Dy tne Regional
Admifiisirrf-cr may :r» effect canstitute
\t\t Agency s fir a, CtC:»ion. and Ul the
need lo ens-re for c»r?oses of appeal
Uiai the final sec;s;on accurately
reflects '.he iegai ar.a fae:ual basis for
[he Agertci f decis.an EPA has on
er*! on f»vr««d truf ruie to
require that the Presiding Officer in a
Subpar: B hearing be an EPA
believes that an attorney would
generally 6e mor» effective and
comfortabie thd.-, :. non-attorney boih
ruling and drafuf.-; aecisions on leadi
issues and cone* ;::ng a hearmg, aibcit
and informal one
To further ensure the neutrality of the
Presiding Officer m both Subpart 8 and
C hearings, the rule has been revised to
require that the Presiding Officer always
be an individual with no prior
connection to the case before him. The
Agency has determined that a decision
to require that only non-enforcement
•ttorneyi ierve as Presiding Officers is
precluded by the fact that many EPA
Regional offices employ no attorneys
who do not have enforcement
responsibilities. Expected cost savings
would be negated if the Agency were
required to pay the travel and
subsistence costs necessary to make
non-enforcement attorneys from
Headqcarters or Regions employing
them available where they were needed
as Presiding Officers. EPA does not. in
any event, regard prior involvement in
any enforcement work as grounds for
disqualifying an individual from serving
as a hearing officer.
The Agency's decision to employ
Agency attorneys rither (nan
Administrative Law Judges as hear.np
officers is based in pa-t on resource
concerns but is principally grounded on
our belief that Administrate Law
Judges, whose experience is in
conducting formal adiudicitory
hearings, are not needtc >o prestc* over
the informal hearings con-errplated by
these rules;
L'se of Affidavits
II. Comment: The rules are unfair m
that they require respondent 10 subm::
all factual representations bv affidavit
but impose no such requirement on EPA.
Response: EPA iB'ees arse r-as
Stricken from the ruiei inos* provisions
req-irsng respondent to ra«p factual
representations by aff;0a\ •; \\e ha'.e
instead adopted the proced-r* specifiH
in the Part 22 proceaurcs u"cer wn-.tn
the original of any p!e«d:.-!g !e':er or
other document (other than e«fibitsi
must be signea by ih* par-y o'fering it or
his representative This iigi«:ure is *c'.".
to constitute « represer.ia'-.-n by the
signer that he has reaa '".e c::-men'.
and that to the best cf * ; '•"-* c-!-.'»
information, anu se.i*.' *•; ra'trrcr.^
made therein are true :• sra^-:
neverintless be no'«c--j' --e-sor i
psriy makes factual .•«;•?5»"-4-io-< .n a
document, the w»'g.-.t •- :t »::r-3p.i
thai evidence ma> :*J"«: »•"'. •-••
-------
fac: (hnt no knowledgeable scu.'ce has
etissied lo the accuracy of or ;*s,s for
thai foci.il ,"eprsse."Uhin
12 Corrt/r.en:- U i$ unfair thdt while
EPA has the rghi (o elicit mformacicn
froTi respondent under RCRA ste::on
300* respondent h;ng dae
process .'equire-Tientsi t*>en they relate
lo dispuied ma:iers of tact Afier Juriner
eoniideraiion. however we ire
persuaded that, as eorimemeri suggest.
there nay be situations in which
questions as to tne appl.canon cf policy
to certajn fac:i may oe appropriate We
have therefore removed the ban on
policy questions from the rule.
The prohibition on questions relating
to "privileged internal communications"
is designed to protect from disclosure
information which ;he Agency would
not under applicable law be required or
permitted to release in response to a
request for information made pursuant
to the Freedom of information Act
(FOIA}. Such information will most
often include, but is not limited to. trade
secrets, attorney-client communications.
attorney work product, and deliberative
matenals Because such material is
protected from cusdosure. questions on
i-jch issues will not be permitted. The
scope of this limitation is not undefined.
since i! reRec:s ihe ettcr.sive case law
concerning these exerr.puons under
FOIA.
14 Co-rirtr.f The rules should
require, not just permit, she Presiding
Officer so d.reci EPA lu ,-espond 10
written questions propounded under the
S.tpan C procedures, if he determines
thai this is "required for full disclosure
and adequate resolution of ihe facts,"
Response' Because it was manfully
drafied. the language of ifce proposed
rule left the str.preinon tftit the
Presiaing Officer could find that
responses lo wnuer. q_uesnons were
rgqu:reo for full disclosure and adequate
resolution of the facts but couid
nevertrieless decline to order responses
to such questions. The offending
language has been reused so as to
d:spel thjj impression
IS. Comment. The Subpart C
procedure for posing wr-.ttf n questions
to the Agency will not provide
respondent with adequate discovery.
because experience wuh interrogatories
indicates that responses ro written
questions are often tr.cnr:plete
Rsmo.'se In a case v« here the
Presiding Officer deiermmes that EFA'i
reiponiej to wrmen questions are
incomplete, he may evereis* II) the
authority he h^s always had IB |2<.H{eJ
o( the proposed rale to compel the
Agency "to submit adaiiiosal
information in «.ha;ev«f form he deems
appropriate" (2) the auiho.tty he has to
ask questions under | :•) !5fa)ut the rjie
to compel • f.lier response from the
Agency i represeniauveisi at hea.'ing or
(31 new authority inserted ;n!o | 24 H(e|
to require that ihe Agency (or bo'h
parties) Jubrnii post-ne«r-ng briefs on
issues which ftave net b^en fuily
developed as of the close a! she hearing.
We beueve the cited provisions of the
rule can be lovoked a needed by :ne
Presiding O!f-cer tc ensure mat trie
Agency prcviaes a ful! respcf.n" 10 any
proper question.
Conduct of the Hearing
18. Comment: The Presiding Officer
should be required to serve the heanng
agenda on rhe parties pnor to hearing
Rffponst- Both the Sabpart B and
Subpan C procedures have been
rewritten to require that the Presiding
Officer provide the parties with i
heanng agenda at the time n which he
announces to them the date, time, and
location of the heanng.
IT. Comment: The hearing procedures
*r* deficient m that they do not require
knowledgeable witnesses from both
sides to be present. '
R»spon$e: While the rulei do nol
accord the parties the right to cross-
examine the opposition 'a
representatives and thus cfe not
contemplate that "witnesses", as thdt
term applies lo full adjudicator/
hearings, would attend she heanng, the
niits do allow the Presiding Officar and
(with his p*rraii»!ont the parties m a
Subpaft B heanrsg to pose questions ts a
party's representativedi at heanng. In
recognition of this fact the ruies have
been revised to
-------
currently suggest that only :hji portion
of the administrative record support!.-, j
"he order u to be made available Jnd
ien not ur.cl the hearing u held. EPA
jhouid cenfy the eompletentis of the
administrative record.
Response As explained above, she
rule hai been revised to accommodate
th:s comment by explicitly requiring ;ha!
the entire administrative record be made
available for review m ihe ipprcpnate
Regional (or Headquarters) office ai of
ihe date of service of the initial order,
The administrative record should
induce ill information (excluding
privileged material) considered by the
Agency in Lhe process o.' developing and
issuing the order, including material
which does not support the Agency'i
view of the case and remedial decision!.
We beheve that it would place an undue
administrative and financial burden on
the Agency to copy and ierv« on the
respondent the entire administrative
record, which may often cor.iisf of
thousands of pages of information. Since
the rules require that the entire
administrative record be made available
for inspection, we believe it would be
redundant to have an Agency official
certify the completeness of the
administrative record.
Burden and Slandard ofPrsof
20. Comment. By depriving respondent
f access to the administrative record
until hearing and by fading to require
that the mmal order contain an
explanation of the basis upon which it
was issued, the rules force respondent
to guess at the Agency's theory of the
case and effectively transfer the burden
to respondent to demonstrate that a
release of hazardous waste hai not
occurred and that the ordered corrective
action is no! necessary to prated human
health and the environment.
Respcrttf Guidance issued to the
Regions on February 19.196". direct! the
EPA Regional office issuing an initial
ofdtt to make the administrative: record
underlying the order available for
review m the appropriate Regional
office as of the date the initial order ia
served. By way of clarifying On
Agency i '.mentions in this regard, this
requirement from guidance hai. as
noted, been incorporated Into the rule,
The rule hai also been revised to
explicitly require that the Agency
disciose in the initial order ihe legal and
factual bases upon which the order w«»
iiiued.
21. dmaiertf Rather than simply
demonstrating, ai the proposed rule now
requires, that there is "adequate
support" in the record for the order.
ihould have to prove by a
preponderance of the evidence that a
release occurred and that the required
corrective action 15 necessary 'o protest
human health and the environment.
Respcr.se- tthie EPA believes that
"adequate »JDCOM ' is a comparable
standard, we oelieve tru;
"preponderance of ihe evidence" caries
a more wideiy understood meaning
Accordingly, EPA has amended ihe rule
to require that the PresiUii-.g Officer
recommend that the order be withdrawn
or modified and issued in a form
supported by the record, whenever he
finds any relief provision in the order is
not supported by a preponderance of the
evidence in the record.
Decisional Procest
22. Comment? The rule ihould be
revised to prohibit ex pane eontacti
enttrely-
Rstponsf: The decision was made in
the proposed rule to permit ex parte
contacts because it was thought that the
Presiding Officer should have the ability
to contact either party for clarification
of their positions or to obtain answers to
questions about difficult technical or
legal matters. On further consideration
the Agency has concluded that the
proper way fcr the Presiding Officer to
obtain answers lo such questions is by
convening the parties for a status
conference or teleconference, This it a
slightly more cumbersome procedure but
one calculated to remove even the
appearance of undue influence which
might anse in the case of an ex parte
contact.
The rule has been revised to prohibit
ex parte discussion af the case between
ihe Presiding Officer and any of Ihe
parties. We have -stained language from
the proposed rule which would require
that, in the ivent that ex parte contact
berween the Presiding Officer and a
party occurs, the opposing party be
provided with a summary/ of the
communication and tn opportunity to
comment on matters which were the
subject of the e« pane communication.
Thu approach eorapcni generally with
that followed m Part 22.
23. Comment: The final order and any
luminary of the hearing prepared by the
Presiding Officer ihould contain a
itateraem as 10 the legal and factual
bant upon which the order wai issued.
Response Commemer'i concern here
appears to be that a final order could
not proper!> be appealed into Federal
court, if the legal and factual baiti for
the order was not known. As indicated
above, the rule* have been modified to
explicitly require that the initial order
contd.n * statement ai to the legal and
factual bas>« upcp which the order was
issued Thys. if an initial order becomes
final by virtue of the fact thai no hearing
is requeued within 30 days of service
the final order will con-am a itaiem^rt
of the legal and factual Sdt;> upon
which ;t was ordered
The proposed rule airead> required
thai any recommended decision
prepared by the Presiding Officer
provide support from information
contained in the record or adduced at
hearing for any decision to affirm.
modify, or withdraw the initial order.
This language hat been retained. Thus.
if the Regional Administrator signs the
recommended decision, the final
decision will contain a justification (that
prepared by the Presiding Officer) for
such final decision. The rules have also
been modified to explicitly require that.
where the Regional Administrator
modifies the recommended decision of
the Presiding Officer, he ensure that the
final decision indicate the legal and
factual basis for ihe deciston as
modified.
White ihe rules require the order to be
modified before issuance as a final
order so as to comport with a final
decision modifying the initial order, tt la
not contemplated that the ponton of the
body of the order containing a
justification for the order would
necessarily have to be modified. That
justification for issuance of the final
•order {to the extent i! is important to
Icnow it for purposes af an appeal into
Federal court) should be contained in
the final decision,
24. Canunent-The rule should require
that the heanng summary prepared by
the Presiding Officer more completely
address the positions and argumer.ii of
both parties, not just those cf
respondent.
Response: The provision m question
!l 24.12US) only establishes rmmmum
requirements for the heanng summary.
Since ! 24-02 has been amended to
require that the A|tncy articulate in the
initial order the legal and factual basu
for the initial order, we believe that ai
the time the heanng summary is
prepared the Agency t views wU!
generally already be a matter of record.
To the extent that this is not the caie the
summary should also address EPA s
positions.
The recommended decision, which the
Presiding Officer is required to prepare.
must still address ill trgumeni* raised
by respondent and provide support for
ajiy recommendation to affirm, modify.
or withdraw ihe order. In preparing this
statement th* Presiding Officer must
necessarily address material aspects of
EPA'i position m the ease to me exwr.t
required to explain why ,-eipondent s
arguments have been actepiea or
-------
12252
^ 94 f'
Federal Register ,' Vol. 53. No. 71 / Wednesday. April 13. 1988 / Rules and RegufatiorU*
riieeied ard *."y EPA's order ihcJd Le
affirmed, rrscified, or withdrawn.
25 Cc/n.-rrrt: Respondent and EPA
sHou.d each be icrved »ith 4 copy cf
the Presiding Officer I recommended
d*e:s.e parties a final
opportunity to ider.ufy, and the
Administrator a Ian chance to hear from
the parties about, factual and legal
error j in ihe recommended decision. and
(2) the procedures da* not allow an
adrmniztranve appeal from the Regional
Administrator's final decision and thus
contain no other mechanism for
discovering or revsrsmg errcr, EPA hai
amended the rule* to provide thai the
recommended dec:sion be served an ihe
pan.es and that the panics be given 3
%vee«,s from service to coramens en the
recommended decision.
Public
28. Con/rffit- The rules should make
provision for public participation in
hearings. T>,e public should receive
notise of the hearing request and should
havt rights virtually coe*tensive wifh
'espondeni s to present evidence and
V-traent sefere. ai and after ihi
anr.g.
Response- Guidance usued by 'Ji«
Agency accords she public the right to
participate prior so hearing in remedy
se!ee:ion. *riich u the critical issued
and mane,' of greatest p»b'ie concern m
a RCRA ;o08ih; process. r.g. The public
will be sivea an opportunity !0 comment
on lite p^jposeC pian for corrective
measures dr. ticpcd by EPA ihe."
comp'.cnop. of the RCRA Fac.iuy
Investigation aria Corrective Measures
Siudy and ••*:!', receive nutice of the
Agency s f.nai pian for ccrrective
measures pnor to iTpiemeriiiiUon. EPA
be^eves mat :o perm:: addiijonal pybSit
p»i
-------
Federal Register / Vol. S3, N'o. 71 / Wednesday. Apr.! 13.
/ 7 c j<
I Rules and Regulators
12263
PAST 22-CONSOLIOAT10 flULfiS OF
PRACTICS GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE
REVOCATION OR SUSPENSION OF
PfRMlTS
1- The authority citation for Part 22
continues (0 read a* follows:
Authority: 13 U S C- »ec 1815. 41 L' S C.
tea ?MS ir.d rwi. ? I! S C. lees 13QIM 'Injl srdf ri xne ordt'j on
(a) An. adminisira;ive action yndcr
section 30Qfi(h! of the Act shall be
conn? need by usuarie ai jn
administrative er-. tr.e ordsr »hd!i be
referred !o ss at :m;,a! ad.r.mistrsiix^
order and m^y cc referenced j< j
proceeding under section 3003(^1 When
the order has beecrr.c! «f?ectiv« «'.«!'•«?
after issuance ol a fnal ord»r follo«:n|
a finjl decision in (he Reg'jial
Adrniflistrator or after thirty dnvs from
issuance if no neanrg 11 r«e,u^sied. ihe
order shai! be referred 10 as a final
administrative oraer V\here theordirru
agreed to by the paries, the order ihHl)
be denominated as a final
•idminutrative ird^r or. consent
(b! The ;r,:-:£! j-J— :r-s:rative c?d"r
shall be «^ec.:ed b-. < Reg.c".al or
Headquarters office durna r-.s-m i!
bysinesi hnu'S after the crd»r •« .55111-!
| 24,04 Fittnf arwf itrvice of S'St'i.
|aj Filir.yofitnJen. (Iff i'cr* i.riil
(Joc-jnienn. The ongtr.«i ar»u or.e cop) nf
the minal administrative ord«f 'he
reeurr.rt",en(jed decision c! :*e r>r»siu:riY
Officer- tn« Hn^i Jecu-on ar.d ;.-.e f>n«i
adinmistrativic order *nd cr.e c;p> o'
the administrative recofi i,*d an mde*
thereto must 5e f:led *»••••! T.e C -?rk
designjtsd fof section 30CS..- T-ieri. In
aildiiion. alt "SemorafiCs «"S . .t-jmrn's
submitted m the praccec--? \- • . ^ls
field with the Clerk
•lb}S• •.*•-•
For ihe effectuation of »*-\ * " **
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122S4 Federal Register / Vol. 53, So. ?l I Wednesday, April 13, 19&8
9 c L r'
Rules and Regulations'^
recommended decision of the Presiding
Officer, the final decision, and final
adrr.:.-u::aine order. Service of a copy
cf the initial administrative order
together « ish a ccpy of these
praceaures. the recommended ctcuion
of the Presiding Officer, the final
decision, or a final administrative order.
snail bt -naoe personally or by certified
mail, return receipt reeuested or. if
personal service cannot be effectuated
or certified mail is returned refused or
unsigned, by regular mail, on the
respondent or hu representative. The
Clerk ihall serve other documents from
the Presiding Officer by regular mail.
(cj Service of documents filed by tftt
parties. Service of ail documents, filed
by me parties, shall be madt by the
parties or their representatives on other
parties or their representatives and may
be regular mail, with the original filed
with (he Clerk, The original of any
pleading, letter, or other document
(other ihan exhibits) shall be s.§ned by
the party filing or by his counsel or other
representative. The signature cor.stitutts
a representation by the signer that he
has read the pleading, letter, or otner
document, that to the best of his
knowledge, information, and beiief. the
statements made therein are true, and
tnai a 1$ not interposed for delay.
(d) Service :n genera! Service of
orcers decisions, ruhngs. or documents
b> tuner tre Clerk cr the parties shall.
in the case of a domestic or foreign
corporation, a partnership, or other
ur,;ncorpa.-atec association, which u
subisci 10 suit under a common name.
be maae. as prescribed m I 24 CM (bl and
(c). y?sn an officer, partner, managing or
general agent, or any person authorized
by appointment or b> Federal or State
law ;o recede service of process.
{ei E"ec::ve date of service. Service
of 'he initial adrr.ir.;siraiin order and
final administrative order u complete
upert receipt by respondent (or the
respondent's agent, attorney.
representative or other person employed
by respondeni and receiving such
service), personally or by certified mail.
or u?nn mailing by regular mail, if
personal service or service by certified
ma;! cannot be accomplished, in
accordance wuh | :•» O4'bl Service of
all other pieadir.ps and documents is
complete upon marrr>» except as
prcviced in |§ 2» I0(b! and 24 \4[e]
f 2« 05 R«ioo"»« to int innial orfltr;
rip.jtil lor "«inncj.
(a) The Tutul administrative order
becanej a final administrative order
if-..,-';. U01 da)s after ser\ ice of ihe
order ^riess ih« respondent f.lei with
the Ci?m witrin :h.:tv 130) d«is after
service of the order, a response to the
intiai order and requests a hearing.
(bl The response :c '.he initial order
and request for a hearing must be in
writing ar.e mailed :o or personally
senid on. tfte Clerk of she Regional
office whtcn issued the order
(c) The response to the initial order
shall specify each factual or legal
determination, or relief provision in the
initial order the respondent disputes and
shall briefly indicate the basis upon
which it disputes such determination or
provision,
(d) Respondent may include with its
response to the initial order and request
for a hearing a statement indicating
whether it believes the Subpart B or
Subpart C hearing procedures should be
employed for the requested hearing and
the reasenisj therefore.
I 24.M Df f ignition 61 Prt udin» Off l««r.
Upon receipt of a request for a
hearing, the Regional Administrator
shall designate A Presiding Officer to
conduct she hearing and preside over
the proceed.ngs
{ 24.0? Informal i»nl«m«nt conference.
The respondent may request an
informal settlement conference at any
time by contacting the appropriate EPA
employee, as specified in the initial
administrate e order, A request for an
informal conference v»ill not affect the
respondent s obligations to timely
request a hearing Whether or not the
respondent requesls i hearing, the
parties may confer informally
cop.ceTT.trig any asoect of the order. The
responcent and respondent's
representatives shall generally be
allowed the opportunity at an informal
conference to discuss with the
appropriate Agency technical and legal
personnel all aspects of she order, and m
particular the basiv for the
determination that a release has
occurred a-,: iht appropriateness of the
ordered corrective action.
f 24.01 S«i«ct'0n of appropriate hearinfl
pr&ctdurtf
If me initial order directs the
respcr.ier.i —
(aj To ur.certai»e cniy a RCRA Facility
Investigate and/or Corrective
Measures Stui1. which may include
mcnitonr.g su;\e>s. testing, information
ga:ner;r,j ar.aHses. and/or studies
(•.r.ci'ud;.-.; st-.d.es designed to develop
recorr.rr.e-i^-oris for appropriate
ccrrecv- ( -.e'.s .:,$! cr
(bl To -r.isr'akt such ,n\esi:gation»
and.'cr s'.jcies ari .nterim corrective
rr.eisu.-es ana :" sucr. iPtfrim corrective
rr.eas.rej sr* rs.fer :csti> nor
iecr.r.'.ca ;. ;;-: ex ar.d are necessary
to protect human health ana the
environment prior to development of a
permanent remedy.
"he hearing procedures set forth .n
Subpart B of this part sha.l b* ernpio>id
for any requested hearing. If the
respondent seeks a hearing on «n order
directing tha: corrective measures or
such corrective measures together with
investigations/studies be undertaken,
the hearing procedures set forth m
Subpan C of thii pan thai] be
employed. The procedures contained in
Subparti A and 0 of thii part shall be
followed regardiesi of whether the
initial order directs- respondent to
undertake an investigation or implement
corrective measures.
Subpart B— Hearings on Ootrs
Requiring Investigation or Gtuditt
5 2*.§t Qualification! el PrttMinq Qtllctr
ti pirn fiMeutaton el IM pf«c**din§.
The Presiding Officer fhail be either
the Regional Judicial Officer {as
described in 40 CFR 22. M(b)J or another
attorney employed by the Agency, who
hat had no prior connection with the
case, including the performance of any
investigative or prosecuting functions
At no lime after issuance of the initial
administrative order and pr.or to
issuance of the final order shall the
Regional Administrator, Presiding
Officer, or any person who will advise
these officials m uie decision or. the
case, discuss ex parti she mer.u of the
proceeding with any interested person
outside the Agtncy, with any Agency
staff member wno performs a
prostcutonal or investigative function in
such proceeding or t factually re iased
proceeding, or wvth any representative
of such person. If. after issuance of the
initial order and prior so issuance of the
final order, the Regional Ad-inn'ratof.
Presiding Officer, or any perscn »-rio
will advise these officials in tr.e decision
on the case receives from or on behalf of
any party in an ex pane co-rriyn-Auon
information which is re'.ivar,! to the
decision on the case ar.i to whiuh other
parties have not had an apcs.'t.n :y to
respond, a summary of sue*, tr.fjrnation
shall be served on ail otner pa.-'.es. wn;
shall have an opporun-;> to rs?U ;o
same with, n ten [lOi a.iv s c' ic'v.rt c.'
the summary
|24.19
: set-
(a) Date cr>d line 'c- -?.•••: •: The
Presidir-i CfEicer jha;. ?s-«-. ,s- '-•-«
date, isme. location, ar.2 ige-.-'j f.v it:»
requested pubhc hea:T>g »"i ::j.-.s~it
this information to tf.e ;ar! «> S«s;eci
to I 24 10!:!. she hea- - j ra ' ue
-------
Federal Register
vol.
.NO.
.Aon! ;j. 1988 / RUes ana
1226
ea 4ftd h* d H •!;-:- :,-,,r:> '301
dav s of ire Af enr> s receipt sf ;he
reauest fora pub'iC hea.':r.s
|bi f't-rtsr.'.tg i±3!^isf:ons i^
responjtm At any time up !c five js)
bus.ness d«i>s before the hsjr;~g
respo.-.jen may but is n8t required io.
susmu :cr inclusion m she
*d,-nif,isifsnve record information anj
argument supporting rtsponCcni s
positions on the facts la* and .-ei.ef. ' cie.a>- exclude redundant
rr.a'er,*; and .nainrain order during :rie
praceeoirgs Represef.U'.A e$ of EPA
s-ali irsircc'.ce me sd.-;;r;;sirsne record
a.-d te prejj'cc ro sum—jnze :h« oasis
fcr the oroer T-.< rfspondir.: shali have
a .'e*-$
:rirsugn iegaj cc^rsse! of Technical
acv.sors The Presidins Officer may also
ai.sw tecfl.iiCd; ana legai discussions
ar.2 miercharje* beineer, me partiei.
i"c.'ud:"S responses to questions 10 the
emeni eeemeti appropriiie. ii 11 nai thi
Ajje-r;. s ,-T-I to provide EPA or
rejpor.jt.i: an opportunily to engage in
d.rec! fia.-inai.sr orcroM-exammation
of wnnesses. The Presidiixi Officer may
jddrgsi questions to the reipondfni j of
C?A 9 represeniativ<(<) during the
hesnrg Each party shall iniurt thai a
rppreieniaiiv«:i| is l«re) present at :ht
"earing, who is (are) capable of
responding io quest,ens and articulating
'hat party i position on ;he law and
f.ie:i at i$5ye Uhere rtspondeni c?n
dfmonjtrai« inji ih.'QuJ" no fault gf :tj
mvd ceriam dajjrnen.'j sjppornve of its
ismon could nor »ijve bee.i submiiied
'ore hearing m accordance with :h«
^jiremenis of i 24 lOjbl. it may jubmn
jwC" dott.Tie"'s a: 'he he^rirs
Otherwise m new dceumer:.iry auppori
may be jubrr.iiiei at hedft'g. The
Presid.ns Officer T,ay upon request
grar.i pensioner iea\ e tc respona :o
suomusions made by respondent
pursuant so th:s section or 5 -•« lOib).
The Presiding Officer shai! ha»e ihe
discriuon to Ofoer either party 10 submit
additional information finduding but not
limited to posshearing briefs on
undeveiopcd factual, technical, or legal
matters) m whatever form he deerr.i
appropriate either a: or after the
hearing.
{ 24. II Summe ry af
OHietr
Subpart C— Ht»rirg$ on Orders
(j| As soon as practicable after the
conclusion ct the hearing a written
summary of the proeet din§ fhail b*
prepared. Th** summary shall, ai a
nr.mmutr,, identify:
II) The dates of and known attendees
at the hear-.ng and
(2J Th* bases upon which the
respar.der.t contestid the termi of the
order
The surnnary must be sifned by Ihe
Presiding Officer.
fb) The Presiding Officer wii! evaluate
the ent:re administrative record and, on
the basn ol that review and the
representations of EPA and respondent
at :he hearing shail prepare and file a
recommenaed decision with the
Regional Aa.~>.twtr8iur. The
recommended aecis»on must address all
material issues of fact or !a* properly
raised by reipor.ier.t, and must
recommend that :ne order be modified.
wnhdrawn or issued withsul
moflificirion. The recommended
decision must provide an explanation
with citation to material contained in
th* record for any decision to modify a
term of the order to if sue the order
without cfiange. or to unhdriw the
order The recommended decision shall
be bated on '.he administrative record. If
the Presiding Officer ft::tfs Tdi any
ccnttsted rt:ief prov.s;s.-. m the order is
not siippor'e'J by a prepjr.Jerante of the
evidence m the record, th* Presiding
Officer ir.aii recommend '.rut ih< order
be modified and usued on terms mat
are supported by the record or
withdrawn.
(c) Ai any 'tr.e wiihm twenty-one (21 J
days of service of ihe recommended
decision on the parties, the ps of service of
ir.e summary
f 24.H £*Httl«
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12266 Federal Register / Vol 51 No. ".
Acr! !3. 1986 / Ruics ana
M
(bl rtistyanemf't o1 :ne hts.' .-y The
Officer, as appropriate, may
grim an eifension 2? time fcr the f.iir.g
of any document, other shars a r*a-est
fnr a nearing under) 24.0S!al array
jrar.t a P. esienjion of time for the
conewc: of ihe hearing, upon written
request of e;tner party, for food cause
jho*n any after coniideratien of any
prejudice 10 aifler parties.
'cl Respondent t pre-tiecnKg
submission. In dccoraance with ihe
schedule set by (he Presiding Of.';eer.
Ihe respondent shall file a memorandum
stating and supporting respondent's
position on ihe facts, law and relief. The
memorardL.il iruit identify each factual
allegation and all issues regard:.-,; the
appropriateness of (he lerms of ihe relief
in she initial order that respondent
contest) and for which respondent
requests a hearing The memorandum
must c'earl) state respondent's position
wan respect !0 each tuch issue-
Respof-aer.t musi also induce any
proposals for modification of she order
The memorandum snail also present ar.y
arguments on the legal conclusions
contained ;n the order-
Id) iVritit.i 7i.-«,' o.'j 10 £PA The
respondent may Me a request with the
Presid.r.g Officer for permission to
submit written question! to the EPA
Regional Office USUIP g ihe order
concern,ng isiuej of material fact IB the
order.
Ml Requests sha!! be accompanied by
the proposed questions. In rr.est
tnstanefis no more than tv>enty-f:ve {251
ques.'.or.s including i'jcs'jes^c's and
s-bparts may be posed The reauest
ar.d quesi-ors must se j-ibmit'ec! to the
Pres.d.r.a Officer 41 leas: :wen:>-cr>.p
CIS da>s oefore t"e hearing
(Z\ The Prtiid;n| Officer rr.jy ci.vci
EPA to respond to i-ch questions as he
des:ar.a:ej. In dec:d.ng whether or not to
direct tne Agency to respond :n written
questions ihe Presiding Officer should
ccns.uer whether such response* are
reqy.rcd fnr fjii cuc.osuce and adequate
resolution of the facts. No questions
shall be ailowed regarding privileged
inte.'nal communication!, "Die Presiding
Officer mall grant, dtny. or modify such
req'jesti *\pediliou«ly. Ua request is
granted the Pres;di?t| Officer miy revise
qyesncr.s and may limit trie number and
scope of questions. Questiani may be
deleted or rev ised in the discretion of
the Presiding Officer for reasons, which
may include the fact thai he finds the
questions to be irrelevant, redundant.
unnecessary or an yndue burden on the
Agency The Presiding Officer shall
transx.ii the quesdons as submitted or
ai modified to EPA. EPA shall respond
to tne questions wurun fourteen (14]
davj of service of the
quesiiu-s lj). '*>* Pres dira Officer
Xiriiess an ever.siur is granted
le! Jw'3"'.'is-c'l ff'CCfl:t:-J':C'
ir.'ormc:.:f The Cres.d..ri? Off'Cer she!!
hase ine a.scrt:ion ic araer either prirtj
10 juDTit acd tiup.d! irifo.-maiicn
(incJu.-i.r.g bu: not limited to pest-heanrsj
bneis en .nceveioped fdciu^l. technical.
or legal rratiers! in whatever form he
deems appropriate either before, at. ar
after the hearing The Presiding Officer
may issue subpoenas for the attendance
and testimony of persons and the
production of relevant papers, books
and documents. Since these hearing
procedures provide elsewhere that the
parties are not to engage in direct or
cross-examination of wtnesies. the
subpoena power is to serve only at an
adjure; to the Presiding Officer'i
authority to ask questions and otherwise
take steps to clarify factual matters
which are :n dispute. Upon request of
ihe respondent the Presiding Officer
may. in rus d.screiicn allow subrmtnl
by tee respondent of additional
information ;n support of its claim, tf:t
is receded b> the Clerk and petitioner
ai ledSi f.-.« !3i Ous.ness cj*s before the
hean.-.g
(f) Lccsi-.on of beefing The hearing
shall be heid in tht city in whsch the
relevant EPA Regional Office is located.
unless i.'.e Presiding Officer determtr.ei
that there is good cause to hold it in
anosner iocatton.
5 It 15 H»anng orat prtatnUttena and
written lyemishont By n« parties.
(i! The Presiding Officer shall conduct
the heanr.j 1.1 a fair and impartial
manner take action to avoid
unnecessary delay in the disposition of
the proceedings, iftd maintain order.
The Pres.d.ng'Officer shall perrr.-t oral
statements on behalf of the respondent
and EPA The Presiding Officer may
address questions to the respondent') or
Ihe EPA's rcpresenttfiitef)) dar.ng the
hearing Edch party ihail ensure that a
representativeis) ii (are! present at the
hcar.np who :s (arel cap.ible of
reiponc;:-? to c iest:ons and art:c^ia:ir,g
that par'v j ;ci'.itor> on the law and
facts at issue. Apart from que»t:nru by
ihe Presiding Officer, no direct
exarr.iP.anor! or cross-examination shall
be allowed
(bj Upon jjmmencemfnt of the
hearing, a representative of £P*i shall
introduce 'he order and record
supporting isiuflr.ee of the order, and
summarise T.e basis for the order. The
respcnden! may respond to the
adm;p.«:ra;ne record and offer any
facts, statements explanations or
documenH wh,rh bear on any issue for
which the heanng has been requested.
Any s.c.1 p'Bsersifl: cr. bv respondrnt
may include .-i?u d:cp..-.c"ts •-..•, «/> •-,
extent tr.jt responoer-t ca~ c^mcrst-R-
that, throup no U-!: c( .ts c^ - *_•,-
document; C£'.:o "Ci ha\e ^•-en
su'jmit'cd befdre scaring TJ dccjrdjnci
with the re3-::«r.enLi of I Z\ ',4 'c! arc
(e) The Agency may then present
matters solei> in rsbutu! to matters
previously presorted by Ihe respond...-.:
The Presiding Officer ma> *Ilow the
respondent to respond to ar.y such
rebuttal submnted. The Presiding
Officer md> e^c.udu repeiitive or
irrelevant fruiter The Preiiding Officer
may upon request grant petitioner !eav t
to respond to lubmusions mad* by
respondent pL.-suant to :h;s paragraph
or { in S4!,el-
| 34. ti TriA*enpt er r*cora>nq at MI inn;
(a) The hearing shall be either
transcribed stenograprficail> or upe
recorded. Upon written request, juch
uanscr.pt or tape recording shall be
made avaiUble for inspection or
copying. '
(bl The transcript or recording of the
heineg and all written submittali filed
with the Clerk by the parties lubiequen
to musal issuance of tni order including
post-",eHr:ng suc-m.ssiofis will became
part of she admmntrative record for the
proceeding, fo: ecnsidiritiQn by the
Presiding Officer and Re;ionai
Admtnistratsr
Prwifltnj
{a| The Presiding Off-cer will, as soor.
as practicable after the csrc.jsion of i">
heonng, eva'ua-e :r.e ef. wt
administrative recc?a and 3n ths bd;i<
of ihe gdmirnsirane rec:r: prepare
and Pile a neon-merit: crc-sicri with
Ih* Regtotml Admi.-;*::iitor The
recommended dec-s.cn must oddrssj »',!
material issues of fact ar aw prcpcrU
raisedbyres5or.ee"' a-.t: r.jst
recommend that :".* ore*- be rod :"i>-ii
withdrawn or us.srf «. •-:-•
modification T'*e *f,-^~ t<*^,. i
decision must prr\ ••*-.*--,, -.,-. m
with cttattnr. to -.a';- . • • • .- "-'j n
the record for ar; etc ^ c- •• m-:i t\ a
term of the order in .j«,« :• : or;er
without change or o », •-.-•** -~.e
order. The recarr.,r,er.3f c ;•: $'on s!^.'
be based on the tcm.nistr«r v e record !l
the Presiding Gff.ctr f.r.as •*.!' sny
contested re'sef pro man -n the order s
not supported by i p.-epo-.aerance ol tht
evidence in tre reea"
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^ LJ f: , /
Federal Register / Vol. 53. No. "1 / Wednesday. Apr.l 13, 196S / Rules and 'Reiutaiions^ 12267
dsc:sion on the parties. (he parties rr.ay
f:> comment"! en the recommended
eecj.or. wi:h she Clerk- The Clerk shdi!
prc~piiy iranjmii any luch cotr,mer,:i
received 13 :r?e Regional Administrator
for NU consideration in reaching a final
cecis.on.
SuDpart &— Post-Hearing Procedure
| 24. if
Ai soon as practicable dfser receipt of
ihe recommended decision. the Regional
Administrator *>!! either sign or modify
jjch recommended decision, and issue
it as a final decision. If the Regional
Administrator modifies (he
recommended decision, he shall insure
:hat the final decuicn tndicisei 'he legal
a DC fic:ua! basis for the decision as
modified. The Regional Adminiitrasor's
dickers snail be based on the
adrr.ir.is::auve record-
124.19 Final
11 iht Regional Administritar don not
adopt portions of the initial order, or
finds ihat modification of the order 11
necessary, the signatory official on the
initial ad.T,;nu:rai;ve order ihall modify
the order in accordance with the termi
of the final decision and file- and serve a
copy of the final administrative order. If
the Regional Administrator finds she
initial order appropriate as originally
issued, the finai decision shall declare
the initial adrn;.i:itritive order to be a
final order, effective upon service of '.he
final decision, if the Regional
Administrator declares that the tnuidi
order rrsusi be withdrawn, the signatory
official on the initial administrative
order will file and serve t withdrawal of
the initial administrative order. This
may be done without prejudice.
134.30 nnii a««ncy cettan.
The Final decision and the final
adm.mssrauve order are final agency
actions that are effective on filing ind
service. These actions are not
appealable to the Administrator.
Filed 4-12-5*. » «J imj
;FF
nujxa coot
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Appendix B: Model Public Notice of Record Availability
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
" ANNOUNCES THE AVAILABILITY OF THE
ADMINISTRATIVE RECORD FOR
(facility name and addressi
The administrative record for the corrective action consent
order issued today by the Environmental Protection Agency (EPA)
to (facility) is available for review, between 9:00 a.m. and 4
p.m., at:
'U.S. EPA
Region Z
Room 4400
700 Clean Street
Hometown, XD 400099
The administrative record includes documents which form the
basis of the consent order issued pursuant to Section 3008(h) of
the Resource Recovery and Conservation Act (RCRA) reguiring
corrective actions to be taken at the facility. Major documents
in the record include the order, [facility assessment, facility
investigation report, corrective measures study report, EPA's
proposed corrective measures, comments to the proposal and EPA's
response]. As work under the order progresses, additional
documents related to the work may be kept with the record.
If you wish to review the record, please contact RCRA
Employee at (Phone #).
-------
Please note that the contacts for this document are now Nancy
Parkinson, OWPE (FTS 475-9325), and Steve Botts, DECK (FTS 382-
5787),
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