\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON DC 2046C
OSNER DIRECTIVE * 9940.4
JUL 6 |989
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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3SWER Directive = 99-iC.
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cc: Elaine Stanley, OWPE
Carrie Wehling, OGC
Steve Botts, OECM
Sven Erik-Kaiser, OWPE/CED
Ken Shuster, osw
Frank McAlister, 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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ATTENTION
PORTIONS OF THIS REPORT ARE NOT
LEGIBLE. DUE TO THE IMPORTANCE OF THE
MATERIAL IT IS MADE AVAILABLE TO THE
PUBLIC. HOWEVER, IT IS THE BEST
REPRODUCTION AVAILABLE.
DOCUMENT IS COMPLETE AS PAGINATED BY
THE SOURCE.
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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 1
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. Docuraent 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 18
B. How Long Available. . 18
C. Notice of Availability 19
D. Controlling the Record 19
E. Document Copying 20
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9940.4
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 adninistrative
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 Forra basis of judicial review
o Facilitate public participation
o Assist oversight
o Improve decisionmaking and quality of orders
A. Part 24 Hearing..Requirements for Unilateral Orders, and
Jud i cla1 Rev Jew
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 § 300B(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 negotiatior.s
will always be successful. An anticipated consent agreement r.ay,
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 reccrd
satisfying Part 24. If enforcement personnel want to be
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 Adroi n i s t ra tiye Record, this factor encourages
making the record complete from the beginning.
In addition to documents that support the order, the record
roust 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 recommended 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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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
Documents _FJ.l_ed__yith the_Regional Hearing Clerk or Presiding
Officer. (For enforcement personnel compiling a record for
a consent order or a unilateral order, this category of
documents generally includes only documents submitted in a
related prior proceeding. The hearing clerk handles
submissions made during pending Part 24 proceedings,)
Misc e 1 laneo us _so ur ces
Well permits
Deeds
Legal descriptions of property
U,S. Geologic Survey and state hydrogeologic maps
Population data from U.S. Census Bureau or local
utilities
Weather information from airports or weather bureaus
Toxicological reports
Financial reporting documents, such as Dunn &
Bradstreet profiles (for issues such as the need for
financial assurance)
Securities and Exchange Commission (SEC) corporate
filings
Public Involvement
Public notice and analysis of proposed corrective
measures
Public comments
Documentation of information obtained at public
meetings
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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. 1.^ 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 recommended 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.
E. Technica1 S ource s
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 roust 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...... _ CE R C LA S cm re es
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 "Interira 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 nust be in the § 30CS(h) adrinistrative record to make
it complete. Inspecting the record nust 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, EPA nay have to leek 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 r.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.)
Priyileaes that EPA ~^v cl =* :"-. Inter- or intra-agency
documents that are pre-decisicr.?. 1 deliberative r.aterial, 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, arc 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.
V Part 24 states that the record be "...exclusive of
privileged internal connunic?.tic-.E. " 40 C.F.R. § 24.03. Note
that rules concerning inclusion cf privileged documents in
administrative records ccrpilod \!~der CERCLA for selection of
response actions nay 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 be 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 termi'nate 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,
OECM, 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
Conf ident ia 1 Busln.ess Information... 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, ir. fact,
5/ The Freed p_m__pf== I n f orna t . IQTLCa s_e .Li s_t. 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, EPA 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. Cqmp_ilinq 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
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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 nay
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
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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 fac i 1 ities 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. Organization
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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99^0. 4
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 number 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 exar.ple, 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.
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G Q A n /
s / 4 J* H
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. MaintainingJLhe^ Record
A. Public and RespondentAccess
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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implementation may occur over a long period and public interest
in having easy access to the record nay 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
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Q C f. ^
' S "T \J • 4
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. EPA 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.
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9940-4
•T
Appendix A: Federal Register Notice for 40 c.F.R. Part 24 Final
Rule
-------
Wednesday
April 13, 1968
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
-------
12253 Federal Register / V'c! 53 \"o r: ,' \Vednesdd1.-
13 t936 / Rules and
ENVIRONMENTAL PROTECTION
AGENCY
JOCFH Paris 22 and 2*
1FBL-3J15-91
Issuance el and AdminwtriTlv*
Hearings on RCRA Section 300&(h)
Corrective Action Qrflarj for
Haxaraous W»»t* Management
Facilities
fiGlMCv: Environmental Protection
Agency (EPA;.
*CTION; p.nal r'Je.
SUMUAHT: This rule esrj
p.-oced urcs whicr. are to govern the
conduct of administrative hearings
requested pursuant 13 section 3003(bj of
the Scud 'A'ojie Disposal Act. dS
amended by the Resource Cjr.si?rvdtion
artd Recovery Ac: (RCRAI, by recipients
of inierirr. status corrective action crders
issued under authority eor.iameu in
section JOOe'hjofRCR.V
irnc-r vl DATE: This rule becorr.es
effective on April 13. 1968,
rON FUATHf • INFORMATION COMTACr
Steve Baiii Mail Code LE-1MS. Office
of E~:srceir.cr.! and CcirpI, ar.ee
Mc.nuor.ing. Waste Divis.an, L' S.
E"i tron.Ten:*! Prsiecnen Auer.cv 401 M
•set S'.V , Washington. DC"2CH60.
j.-.c ,(:a:i :a:-3:8r
IHPOWUtTIONt
I. Authority
Teddy s fir,*! rule has been issued
under i j;-or:ty of Secnons yxZ dnd
3006 cf HCRA.'as a.f.ended by th*
Hazardc.* ar.i Sol.d V.'dste
AmenJ.-r.cr.ts of :9W •!: L' S C 6?i: and
69:=.
II. Background
In :90-i Congress enacted the
Hazardous and Solid \Vasie
Ar-.erJ.Tie.its (HSU'A) to RCRA.
,',i:;idei .n j-COSfh] of RCRA. as
amended. "as new authority for EPA !o
ssje crse.-s requiring corrective action
or s^'.i ether response mciiuni n the
Agency deems necessary to prelect
nu.T.an health and the environment to
irrer.m siarui facilities treating, staring.
or d.spos nj of hazardous waste, at
wh'ch releases of hazardous waste or
consutucnti occur Under section
3008ib| or RCRA a JOoaihj order
becomes find! and effective unless
hitrun 30 d• ir.t re:i::er.:s of
suss "ders
A p"t;2iei ve'j.on :' this %:.e «.'as
pucl.'jhea .n -re Federai Register en
Au;'js; S 138" Jiang *•::- an .nv;ta:.3n
•0 :.".:srsaiec -Tig.TiSers of :ne p-bl:c :o
ccrr.Tier.i on ihe propc?ed ruie. The
proposed rule established a iwo-Uered
set of procedures for administrative
hearings or. 3008(ht orderj. These
procedures ccr.tempiaie heanr^s
generally less (crmdi ihan the full
ad)udica:ory hedrmgs current!y
by 40CFRPd,-t 2Z (Part 221 on
compliance orders issued pursuant to
RCRA seciion 3008U1 Where the initial
3Q08("j order in question directs
respondent :a undertake (I) studies at
the nature and extent ol releases of
hazardous wasie/consmuents or (2)
siud'.es cf '.he available aiierr.auves for
remediating sucn release), either alone
or JP, ccr.r-".c::on with certain limited
interim correctiv e measures, the
procedures appearing in Subpar: B of
ihe ryie are !a govern ihe conduct of the
hearing, Uhere :he mn:il 3008(h) order
re^-,;res respondent to undertake
spec.f'.ed esrr«c'.;\e measures 'other
than csrtam i.mned imenn correc'.ive
niasu.-es alluded 13 abo\t). either alane
or IP. :on;_n:r.on wish .nvesiigatory
studies the ;roce3ures appeq.-.ng in
Sufapart C of the rule are cantroll'.ng
The S.cpart B and C procedures are
similar. However, the Subpart C
procedures make more formal provision
i.ian the Suopart B procedures for
sjbrmssion of evidence.'argurrsenl before
and a: a hearing and afford respondent
an oF?ori'.r,;tj' (not availasie under
Subpan B) to pose wniien questions on
disputes factual matters to :ne E7A
office issuing the initial order.
III. Major Revisions to ihe Rule
A number of tommcnts on the
propQMd rule were received from
represenucives of the reg'jUied
community, :rade associations, and
environmental interest groups. While
ihe bane approach and structure of the
ruie remains craitered. ihe public
comments hav« prompted EPA ta make
several impor:ari cfsangei in the
language of :he ~J e Perhaps the tnosi
significant charge eniai(«d adoption of
•n explicit requirement that the enure
administrative record underlying the
initial order be -naae available in the
appropriate EPA Regional or
Headquarters c:!:ce for inspection by
respondent (anc! the puolicl as at ihe
date the in.::al order is served. WTiile
this requiremeni p.ad already been
incorporated m(c guidance issued by the
Agency, the proposes ruie left ihe
impreJiion iha: :.-e acrnmisirafive
record was nc: 'o ce c,ac!e a^aildbie fcr
review ap.:i; !,".« hear.-g. The f:r,ai rule
also mai.es ciejr that !h.e adm:ntsira-,ive
record must contain aii ;n;3rTa!:cn
cor.s.dered 3y she Agency :n the proctis
of deve!c?:ng the oracr. regaraitss of
whether ihe mforrration does or IJQ TV.I was
dooe to correct an inadv»."i»-i c>- ssion
in ihe proposed rule anc1 'o : j- ;. •"
P?t»iding Officer's ajtnc- • »:.-i.t
-------
Federal Renter / Vol. S3, No. 7: I Wednesday Aertl 13, 1988 / Rules and Regulations 12257
l ur factual issues which the parties
noi fully developed d correcnv e measures,
fate and transport of cantjminanls,
hydrogeoicay at '_fc,e site, etc.). which can
only be resolved ihrough discovery and
cfoss-exdrniPahon o! witnesses. The
suggestion n ire preamble is the
proposed rule inai issues of matenmulga;ed here loday dj lot raninin
i 'equal* ?ra\ ision for the re^olulion of
'.-sse facijdl disputes, v-tnh *rt likely
• • arise di hearing.
Locki'l .'::$! d( me pu'er.-.jl bjrden
• n j.id fisss :v> respondent. EPA nciei
'h^t th.ted
it>-d wiirt iTiylemrnie'icn of
eorrec'iv* rr;e«i.res 'e g .
-in of t Fence - -hai '-emovji" actions
Idnd IPSI often r?r~e±j;' articns)
condu'.l^d pu.'stdn! 'o the prov:»ior.^ oi
i>.e Comp-eticr.! •-* Er.vjroimen'al
R-jsporse Conre.iia'ion and Li.ibitity
Act of I«0 as a-eierd iCSj!CLAI *rt
proceedings, which include extensive
discovery and crosj-eTammation, are
not oniv unnecessary from a due
process standpoint they are also
incompatible with the need to
accomplish cleanups quickly before
contamination spreads 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 in fuli
adiudicatory hearings will be
substantially eased by adoption *nd use
of the initan! hearing procedures. In the
Full adjudicafory hearings held on RCRA
section 3009;*) orders. EPA mull often
produce expert witnesses (e.g .
lexicologists, hydrogeologists, findnctal
analysts) and Agency employees to
testify as to how inspections'were
conducted, records compiled and other
similar matters. These witnesses must
be paid (o travel to hearings, must be
prepared for hearing, and will be lost for
other useful purposes during the penod
when they must be ava.labie for
hearing. The attorneys representing the
Agency ui such adiuj-cntary hearings
must devote considerable urr.e to
preparing witnesses, preparing direct
and crojj-examjrtiUor.. and other
activities not required for ihe informal
hearings provided for herein. Similar
travel, witness, hearing preparation, and
related costs would be required if (he
Agency were to provide a Part 12
hearing to the recipient of a 30C8|h)
order. It is protected that roughly haif of
the cost to the Agency of participating tn
full atliudicatory hearings will be saved
by holding hearing* under ihe
procedures we promulgate toda v These
prelections are based not cniy or
Agency experience with RCR.A and
other adminisiraove hearings csnd-.cted
pursuant lo Parl 22 but auo on Agency
experience under CERCLA. Receri
amendment* to CERCLA set-r.i; :rse
Agency to subrnu [he admirsistrauve
record supporting the Agency ! remedy
selection decisions to a court in i.ty of
presenting the stream of Agencv
employees and experts needca to
substantidte such remedy se.ecuon
decnions in the pas! The »«vtr.ci ;n
litigation josis to the Agency frarr.
aJopimn i;f this new procedure >tdve
be?n substantial—on the order o.' »
percenter morn of previots tatjis
Accordingly, it is not i.mp.y
considtrdtinru of corvsr.ie-.ee Fo ;-t
Agency :h«i have promp-ed -.s •= *;"of
l^ss formal hennng procec^res !;r
300S(hl prjcseijinjs. Rather '-.a:
decinun vvas based or, n: —.* -f" '-
respond ^-ickly to re'
-------
fact ihjt ihe essu ro the Agency of
adopting forma! aiudicaiorv
procedure! would be luch aj to
Significantly impair the Agency i ability
lo enfcrce the provision! of HCRA
section OOOflfh). and (3) our conviction
tr.at :he factual issue* presented in itch
prc«ees.-gs will be technical in nature
and hence susceptible IB resolution
t.hrojgh the wruien procedures and
infarrr-.d! hearing provided lor under ine
mles
2. Comment. The language of and
legislative histcry surfcuncmg RCR.A
section 300Bih] require thai the same
kind of hearing be field or RCRA section
iOOflfa) ar.d 30C8fh) orders. The
statement in RCRA section 3008 hearings i!
sr.o-ld be sufficient to pcml oui that
Ccrgress said in 3Q03ib! that the Agency
"rr.jy " prorr.ulgate discovery rulps.
clearly suggesting that hearing which
did no; contain this feature mosi
cDf-.o-.1) associated with adjudicatory
hearings wouid alio b« acceptable.
Sir,:? subpoenas are routinely employed
in legislative as well ai tdiudicatory
hearing! the affirmation (in tccnon
300fl(b)| of the Agency'* righl to issue
subpoenas also in no way implies a
Cop.gressso.'.al preference for full
adjudicator} hijnnjs. Thus. EPA
continues :a oeiieve that the less formal
procedure rrorn.lgaied taday is fully
cansisient with the sutctorv lane.^ge cf
section of section 3006 3rd
Congressional intent.
J Cj.T,.rs.-l Cn*n !h* poto.-,!:j'lj-
:gh cost of conducting a re.-ned.ai
investiga:::n and i.Tipiementing ir.terim
corrective T.eaiures. there is no basis
br affording respcnden; less process in
S-.bpan 3 ("study order' ) hearings than
in Subpart C ("remedy order") hearings
Rfspsr.se The changes .-nade ;,i
response to eomrner.u narrow the
differences between Subpart B and C
hearings. The principal remaining
distinction 11 thai the Subpari C
procedures permit respondent to pose
written questions to EPA. whereas the
Subpart B procedures do no). The •
Subpart C procedures also require the
filing cf certain pre-heanr.g submissions,
while the Subpart B procedures maxe
this optional The Subpart B respondent
is thus allowed fewer opportunities than
(he Subpart C respondent to ask
quest:ons relating to ma ten a! factual
issues and the explore the basis far the
order
EPA believes this distinction is
' warranted because at the stage of a
jOOflihi proceeding at which a remedial
invest, gation or interim corrective
measures are ordered there is generally
very little known aboul the nature and
extent of contamination it the facility
and thus very little for the parties 10
argue over Factual disputes at (his stage
can be expected to focus en the question
of whether a release ha» occurred. By
the same taken an Agency order
directing a respondent to undertake u
Corrective Measures Study (which wilt
si.npij explore and compare remedial
alternatives) :s expected to raiae few
issues of fa;!. The opportunities
afforded respondent to review the order
and administrative1 reccrd. make written
pre-fieartr.g submissions, request an
informal se::!eme.-.i conference at which
the sasis for the Agency order car, be
e-xplored in some dep'h. make oral
presentations at hearing, and (with the
Presiding Officer's permission] pose
questions ts -he Agency's
represenintiveljj at hearing should :n
cerr.binat.ar, be sufficient to (1)
thoroughly inform respondent as to the
bans of the Agency s order, and (21
permit respondent :a respond in detail
to the factual and :eea! argument! which
underlie the Agency i order. Also. EPA
expects that trie orders which will be !he
jubiect o' a S^bpuri B hearing *iil
ordinar.lj have a less significant impact
on respondent s prcperty interests than
the remedy orders sub;rct :o the
Subpari C pro:ed^res
4. Co.1". —£.".' The fei-e.it Supreme
Court decsian -n f-.Yi L'n'ied Sfzrcs
95 L. Ed li 36.i ;i9B''. requires thai
respondent lie affcrded a jury trial in
any proceesi.tg .n wh:;n a civil per.ilry
is JOugnt
nse' Faoinflie 4 to the opinion ;
the court in Tu'! reads 31 folios s The
court has also cc-nsidtted ir-.e ptacv.cs!
lirnitationi o( a jury trial and us
funeticnal compatibility >*.t*
proceedings ouisice traditional courts s
law in hald.ng mat the Seventn
Amendment is not applicable to
administrative proceeding]." id ti 373,
tiA. Accordingly, the decision in ry//ha
no bearing on the requirement m the
rule that hearings on 300aiM orders
seeking penalties be held under the
existing hearing procedures contained r
Part 22,
hsitcnc? of the Initial Order
3. Ci?.7ime.u. The rules should spell
out more clearly which EPA ot'fic.al will
issue the initial JOoa(h) order.
fler^o^i*. The unspoken but apparent
concern of the eommemer is ihat a low-
level Agency ofHcial acting without
proper review might be permitted under
the rules to issue an initial J008|h) order
The pertinent Agency RCRA delegation
(No, 9-32) empower) Ihi Regional
Admmu'.raior and Atusiant
Administrator for Solid Waste and
Emergency Response to mue initial
30081 h) orders and allows these
individuals to redelegate that luthonty
Given the fact ihat authority conferred
on Regional Administrators to issue
RCRA section 30061 h! orders has
uniformly been reposed (by
redelegationl in individuals at or above
(he Hazardous Waste Divis.on Director
level, we believe ihat there is no cause
for concern that Regional
Administrators: or the Asustar.t
Administrator wi;l redelegate authority
to usue eorreetive action oreers to low-
level Agency olfkials AccorCingly, we
have decided that ihe actual designation
of the official who w.l'i mue initial
3CX38(h| orders should cominje to be left
in the niles, as it is in the pertinent
Agency delegation, to the Regie-Rat
Administrators and the Aisu;a.*,i
Administrator for Solid V%asie and
Emergency Response This arproacS
comports with tnat now f^iowed in the
Part 22. hearing procei-'f s
Service of Orders. D*c s.c's R.:ir$s
and Documents
8. Comment; In order 13 eiim.rate the
possibility that oraen dec s;or,s. cr
other documents migm bt served on
tow-level corporate of'.c-.a'.s "-.e rxi.es
should require that s*pvi;« ;e -ade
upon that represer.tai'n D! --sjondent
designated to reem r »?•>• :» :'• D'ocsii
not simply on reipor^**- i
"representative "
Rtspor.it. The .-jiri n -t- i«J .'s^iow
the Par! 22 procec»r» .-:••*-:•.
-------
Federal Register / Vol. S3, No. 71 ' Wednesday.
13. 199fl / Rules and Regulations
12259
service is 10 t)e made upon respondent.
h's representative, or. in the case of a
corporation, partnership, or
unincorporated association, upon an
officer, partner, managing or general
agent, or other perjgn authorized by
appointment or Federal or State Ijw to
receive service of process,
Choice of Hearing Procedures
? Cafrifrenl: The rules should employ
a clearer standard for determining when
hearings on 30C8(h) order* directing
respondent to undertake studies and
interim corrective raeasures are lo be
held under (he Sub-part B or Subpan C
procedures. The respondent should have
input into ihe decision as 10 which
hearing procedure! are to be uttbieu1,
Response. The rules currently provide
that hearings on orders raquinng
respondcr.E to undertake studies and
interim corrective measures are to be
held under the Subpan B procedures, if
such interim measures are neither cosily
nor technically complex and are needed
to proieci human health and the
e~v;rcnrr.ent prior 10 development of a
permanent remedy The thought behind
adoption of :hn standard was thai a
hearing which would otherwise be
conducted under the Subpan B
procedures ihould not be required to be
heid unccr the more time-consur.ir.g
and formal Subpart C procedure?,
merely because the order :n question
directed respondent lo irr.piement
ce:sa:n limned corrective measures
v*r,;;n c,a not place rr.aior property
in-erest! at itane and wore net frai:«ht
with corr.sle^ lecftnica! questions for
wr>.:r. she Subpari C procedures would
ae —ore appropriate EPA continue? to
iene^c (hat T.ese criteria provide the
appropriate bas.s for deiermining which
hearing pncej'ursi to employ The fact
ir.d: these enter.a require the
itfc,5.-r.rn=»er to rr.Gne occasional
subjective i uJ^ Ten is is not in use If
jrouncs for abandoning or modifying the
criteria
Ir. cr";- o prejtc* o\er
the informal hearings con-errpla'.ed by
these rules.
L'se of Affidavit
11. Comment: The rulei are unfair in
that they require responceni 10 submit
all factual representation! iv affid••• i"cr< .n a
document, the waM •-. :e >::;-2P.!
th.Tt evidence mo> ;*J"»: ••"', •-••
-------
fact ,'hnt no knowledgeable scarce has
etusied lo the accj:a:y CD,' sr ;is,s for
thai ficUal ."epresenijiiiri
T: Com/re-fl.'' Ji is unfairthdt while
EPA h rr.ar.j violations
of RCRA WCLIC ^o umder.t.f ed, VVs
regara the (ac: :nai EPA has been giver,
a statutory tool (c enabie it 10 enfcr:;
the .'aw ib irreiet ant to a cscsion as ta
wrsetrf r dje process or c:r.er
considerations recu.re that respondent
b« pe-r.-.'Ued to e^^age sn *dd;iior.al
d;sc=^ ;ry m 30C£;h| aar.mi.itmtive
proceedings.
n Cr.nuncfl:. The proscription in ihe
rules un written qu«siigni rtliting to
nat:ers of "pul.cy ' and "priviliged
internal cammumcations" ii
uiapproprmte. since these terms are
undefined and quesnons reining to the
application of policy to ihe specific facts
of a cuse will ofien be c.Mical to the
d.spij'.e
Respo:.te The ur.dertjmg r-aiun^lp
fcr the proscription m iL,e r^le on
"policv ' quesuors was ;h-i ivntten
o"^«i:ani pnjy serve a useful function
ihe standpoint a,' sai;»f):ng dae
process ."equire.nentJl w^en. they relate
to dispui?d ma:ters of fjct After luriner
considerate/I, however we are
persuades ihat. at coriirenicrj suggest.
there may be situations in which
questions as to me appl,canon ef policy
ta certajn fac:s may oe appropriate \Ve
have therefore removed the ban on
policy questions from the rule.
The prohibition on questions relating
to "privileged internal commgnications"
is deigned to protect from disclosure
information which ;he Agency would
not under applicable law be required or
permuted to release in response to a
request for information made pursuant
to the Freedom of information Act
1FOIA}. Such information will most
often include, but is not limned to. trade
secrets, attorney-client communications,,
attorney work product, and deliberative
materials Because such material is
protected from enclosure, quesuoru on
such isaues will not be permitted, The
scope of this hrnaatien is not undefined.
Since it reflec:s ihe extensive case law
concerning these exerr.puons under
FOIA.
14 Ccnrtr.r The rules should
require, not just permit, she Presiding
Officer so d.rect EPA to respond to
written queiucns propounded under the
S.bpan C procedures, if he determines
thai this is 'required for full disclosure
an4 adequate resolution of Lhe facts,"
Response Because it was manfully
drafied. the language of ihe proposed
rule le.'t the impression that the
Presiding Officer eould f.nd that
responses lo wnuer, questions were
rec.u:rec for full disclosure and adequate
resolution of the fac:s t ji couid
nevertheless de;!;r,e !o order responses
to such questions. The offending
language has been rsi'.sed so as to
dispel this impression
IS. Comment. The Subparl C
procedure for poung written question*
to the Agency will not provide
respondent with adequate discovery.
because experience, wuh interrogatories
indicates that responses ro written
questions are often u-.cnfnp.leie
Respof.se In a case w h«re the
Presiding Officer deiermir.es that EPA §
responses to wrmtn questions are
incorrplete. he may eversist II) the
au'.hority he hus always had in 1 2<.H(eJ
o( the proposed rvle to compel the
Agerxy "to submit adaitionaJ
information in wha;ever form he deerni
appropriate" [2\ the attho.iiy he ha* to
ask ques!iors under } :4 I5ta)oi the niie
to compel a f.Uer response from the
Agency i represeniauvetsi a! hea.'ing or
(31 new authority inserted ;^;o i Z* H(el
to require that the Agencj (or bo'ri
parties) tub^iit post-ne«r-ng briefs on
issues which c.gv* not been fuily
developed as of the close a! she heanr.j.
We beuei e the cited prov;j;oni of the
rule can be invoked a needed by :i:t
Presiding Oif.cer to ensure tnat ;ft*
Agency prcviae* a ful! respcrm to a^y
proper quesnoa
Conduct of the Hearing
Ifl. Comment: The Presiding Officer
should be required to serve the hearing
agenda on rhe parties prior to hearing
Response: Both the Subpan B and
Subpan C procedures have been
rewritten lo require that the Presiding
Officer provide the parties with a
hearing agenda at the time ai which he
announces to them the date, time, and
location of the hearing.
1?. Comment: The hearing; procedures
are deficient m that they do not require
knowledgeable witnesses from both
sides lo be present. '
Aetponte: While the rules do nol
accord the parties the right to cross-
examine the opposition *
representatives ar.d thus do not
contemplate that "witnesses", u thdt
term applies Io full adiudicatory
hearings, would a Herd the hearing, ihe
ruies do allow the Presiding Offmr and
(with his perraisiion) the parties in •
Subpart B hearing to pose questions to a
party i representative^! at hearing. In
recognition of ihj» fact ihe ruies have
been, reviled to explic.'Jy require wnai
was only implicit in ihe proposed rue—
thai each party mutt be represented *t
hearing by a rcpresenuuveis) capable
of responding to questions ar.d
articulating that party s poniicn an the
law and facts of the case.
18. Cora/pen;.-The fac; that me ru.es
permit » tap* recording of a rifcdr.ng m
lieu of a transcript is proDiern.t.cal in
thai tape rccotimgs «r« usaaily oF pour
quality and make identification of trie
speaker difficult.
Response; Although a
sienographtcally transcribed record of a
hearing may. generally speaking 5«
more reliable than » (ape recor=..-.n *••
nevertheless believe that a up*
recording will provide an aded-c:e
record of the hearing and that in i;gnt cf
the additional cost to the Agerey of
providing for sienognphicaliy
transcribed records, the dec:s>or. 'c
perauc tape recordings u iLsitflec
Adminisimiive Rtsorti
19. Cemrxcnt The rules sho^tc reqi-.rc
that ihe entire tdromisuauve rec;-c
underlying «n order [mclLd.rj ma-f i'-*
which do and do not suppc.'i :; t
Agency s theory of the case a .-.a
remedial decisions) be srrv-ea ,DC- -•
made available to rtiponde-.t ,D-I
itr%-ict of the initiai onier Trt -. *»
-------
12262 Federal Register ,' Vol. 53. No. ~\ ! Wednesday. April 13. 1988 I Rules and RegufaiiotW"
riiecied ard nf-y EPA's order ihcJd le
affirmed, irsdified. or withdrawn.
:5 Ccft7.-j-e.TT: Respondent and EPA
sHou.i each be served with a copy of
ihe Pressing Officer I recommended
;; comment on the
recc,Tmcnde2 aecision before ihe
Regional Administrator issues a final
decision.
Response; Since (".j Ihe proposed
change allows the parties a final
opportunity to identify, and the Regional
Administrator » Ian chance to hear from
the partiei about, factual and legal
error! m ihe recommended decision, and
(2) the procedure] do not allow an
administrative appeal from the Regional
Administrator's Anal decision and tfcyj
contain no other mechanism for
discovering or reversing errcr, EPA has
amended ihe rule* to provide that the
recommended dec:sion be served an ihe
a and that the panies be given 3
from service to comment on the
recommended decision.
Public Participation
26 Can/rent: The rule* should make
provision .'of public participation in
hearings. T>,e public should receive
notice of the hearing request and should
have ngha virtually coenienjive wifh
'esponcen! s to present evidence and
VJ mer.t before, ai and after ihe
arutg.
Resp^rse- Gu:-.sf The proposed procedjres
. mieniioral'v Ipfi more 'o the
discretion of the Presiding Officer than
Part 12 does, so as io permit a flexible
approach to hesrngs on c-iers which
may request relief ranging from irr.all
studies of limited spilia or ins-cpensi^e
interim corrective measures {e.g..
erection of a fence or waning signs)- on
the one hand, to complex and expensive
remedies, on the other. The procedures
as amenoed are nevertheless specific
enough to ensure that, regardless of the
costs or complexity of the requested
relief, respondent is afforded 11) an
opportunity to iea.Ti the legal and
factual basis upon which the order was
issues. (2) a hearing before a neutral
hearing officer, and 13] the opportunity
to present its views on relevant factual
and legal issues.
The formalized hearing procedure)
contained in Par: 22 would require that.
even m the most straightforward cases
involving requests for the most limited
corrective actions, certain expensive.
time consuming, and unnecessary
procedural minimum be observed,
These include but are not limned to [1) a
hearing before an Administrative Law
Judge, [Z] i written transcript. (3) a
formal compiauni and answer meeting
certain soec.fic requirements. (4) oral
examination cf witnesses (at least 10 the
extent that any issue of matenal fact il
presented). (5) filing of post-hearing
briefs, and [6; many means by which
issuance of an administratively final
decision may be delayed, including a
motion to reopen the hearing, appeal of
me final decision to tn»r Administrator
(Chief Judicial Officer! and a motion to
reconsider the final order Part 22 also
establishes procedii/ei for discovery.
prenearicg conference*, and
intervention and generally contemplates
a more extended heanng process than
lha: provtoed for :n the instant rule.
Observance of ;.*e Par: 21 procedural
requirements v\auld mevuaoly impair
the Agency > aaiiity !u compel • rapid
response to rtlenses of hazardous waste
and const! it en, i under 3008 i hi
V. Regulatory Analyses
A. Liecutive Orser So 12151
Under Executive Order No. 12291. rhe
Agency must judge wheine: a regulation
is "msior" and ihuj subject to the
requirement to prepare a Regulatory
Impact Anal) s, j The notice published
today is not major because the rule will
not result in an effect or. the economy of
S10C million or irore. will not result in
increased cos's cr prices -.oil not have
significant adi erse effects an
competition, errployrr.er.:. investment.
productivity ard innovation, and will
not significantly Disrupt domestic or
e*pon marrerj Therefore the Agency
has not prepa-ed a ReguUiory Impact
Analysis under the E.-»ecutive Orde-
This reguUtion wjj sjbir-.nicd ;o the
Office of-Management and Budge;
(O.Vifl) for review as required by
Executive Orcer No. 12291.
B. Regulatory Flexibility Analysis
PMrsuani io the Regulatory Flexibility
ACL S U.S.C 601 ei seq . whenever an
agency is required to publish • notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis th«t describes ihe
effect of Ihe rule on small entities (i e,.
•mail businesses, small organizations.
•nd small governmental jurisdictions].
ThJi analysis is unnecessary, however,
if Ihe agency'* administrator certifies
that Ihe rule will not have a significant
economic effect on • substantial number
of imaj! entities.
EPA naif exajEiced ihe rtle'i potential
effects on small entitles n required by
the Regulatory Flexibility Ac-. Thi«
proposed rule esubltthes hearing
procedures end has no significant
economic impact on a substantial
number ol small entities. EPA certifies
that today'f final rule will no! have •
significant economic effect on a
substantial number of small entities.
VI, EH«ctive Dale o( the Rule
Since the instant rule i* raanJestly
one wijj) wruch the reflated community
does not need six monihi for for that
natter, any time) to come inio
compliance, see 42. U.S.C, eSJO'sK')- "
will take ef/eci immed.ately 9y making
the rule effective immediatefy E?A
intend* to eliMmate any ccrhjiion
which might otherwise ex;jt as 10 what
procedures to follow in hean-gi on any
such orders.
List of Subjects
40 CFR Port 22
Admiruitrative practice i.nd
procedure, Haurdous maierais
Penalties, Waste ireatmen! di9;c«ai
« CFR Part :4
Adminiitrative prectice tr.d
procedure. Corrective action. H»infdous
matentla, Pen«ln*«;Re\ocanon of
operating authority.
Ootd. April 3. 19U.
LM M. Pionwi.
Adminumtor.
For the reasons set out LT. %?te
Preamble. Title 40 of u\e Cote 3? Federal
Reguiations is amended »i ';.'a»i
-------
12262 Federal Register ,' Vol. 53. No. ~\ ! Wednesday. April 13. 1988 I Rules and RegufaiiotW"
riiecied ard nf-y EPA's order ihcJd le
affirmed, irsdified. or withdrawn.
:5 Ccft7.-j-e.TT: Respondent and EPA
sHou.i each be served with a copy of
ihe Pressing Officer I recommended
;; comment on the
recc,Tmcnde2 aecision before ihe
Regional Administrator issues a final
decision.
Response; Since (".j Ihe proposed
change allows the parties a final
opportunity to identify, and the Regional
Administrator » Ian chance to hear from
the partiei about, factual and legal
error! m ihe recommended decision, and
(2) the procedure] do not allow an
administrative appeal from the Regional
Administrator's Anal decision and tfcyj
contain no other mechanism for
discovering or reversing errcr, EPA has
amended ihe rule* to provide that the
recommended dec:sion be served an ihe
a and that the panies be given 3
from service to comment on the
recommended decision.
Public Participation
26 Can/rent: The rule* should make
provision .'of public participation in
hearings. T>,e public should receive
notice of the hearing request and should
have ngha virtually coenienjive wifh
'esponcen! s to present evidence and
VJ mer.t before, ai and after ihe
arutg.
Resp^rse- Gu:-.sf The proposed procedjres
. mieniioral'v Ipfi more 'o the
discretion of the Presiding Officer than
Part 12 does, so as io permit a flexible
approach to hesrngs on c-iers which
may request relief ranging from irr.all
studies of limited spilia or ins-cpensi^e
interim corrective measures {e.g..
erection of a fence or waning signs)- on
the one hand, to complex and expensive
remedies, on the other. The procedures
as amenoed are nevertheless specific
enough to ensure that, regardless of the
costs or complexity of the requested
relief, respondent is afforded 11) an
opportunity to iea.Ti the legal and
factual basis upon which the order was
issues. (2) a hearing before a neutral
hearing officer, and 13] the opportunity
to present its views on relevant factual
and legal issues.
The formalized hearing procedure)
contained in Par: 22 would require that.
even m the most straightforward cases
involving requests for the most limited
corrective actions, certain expensive.
time consuming, and unnecessary
procedural minimum be observed,
These include but are not limned to [1) a
hearing before an Administrative Law
Judge, [Z] i written transcript. (3) a
formal compiauni and answer meeting
certain soec.fic requirements. (4) oral
examination cf witnesses (at least 10 the
extent that any issue of matenal fact il
presented). (5) filing of post-hearing
briefs, and [6; many means by which
issuance of an administratively final
decision may be delayed, including a
motion to reopen the hearing, appeal of
me final decision to tn»r Administrator
(Chief Judicial Officer! and a motion to
reconsider the final order Part 22 also
establishes procedii/ei for discovery.
prenearicg conference*, and
intervention and generally contemplates
a more extended heanng process than
lha: provtoed for :n the instant rule.
Observance of ;.*e Par: 21 procedural
requirements v\auld mevuaoly impair
the Agency > aaiiity !u compel • rapid
response to rtlenses of hazardous waste
and const! it en, i under 3008 i hi
V. Regulatory Analyses
A. Liecutive Orser So 12151
Under Executive Order No. 12291. rhe
Agency must judge wheine: a regulation
is "msior" and ihuj subject to the
requirement to prepare a Regulatory
Impact Anal) s, j The notice published
today is not major because the rule will
not result in an effect or. the economy of
S10C million or irore. will not result in
increased cos's cr prices -.oil not have
significant adi erse effects an
competition, errployrr.er.:. investment.
productivity ard innovation, and will
not significantly Disrupt domestic or
e*pon marrerj Therefore the Agency
has not prepa-ed a ReguUiory Impact
Analysis under the E.-»ecutive Orde-
This reguUtion wjj sjbir-.nicd ;o the
Office of-Management and Budge;
(O.Vifl) for review as required by
Executive Orcer No. 12291.
B. Regulatory Flexibility Analysis
PMrsuani io the Regulatory Flexibility
ACL S U.S.C 601 ei seq . whenever an
agency is required to publish • notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis th«t describes ihe
effect of Ihe rule on small entities (i e,.
•mail businesses, small organizations.
•nd small governmental jurisdictions].
ThJi analysis is unnecessary, however,
if Ihe agency'* administrator certifies
that Ihe rule will not have a significant
economic effect on • substantial number
of imaj! entities.
EPA naif exajEiced ihe rtle'i potential
effects on small entitles n required by
the Regulatory Flexibility Ac-. Thi«
proposed rule esubltthes hearing
procedures end has no significant
economic impact on a substantial
number ol small entities. EPA certifies
that today'f final rule will no! have •
significant economic effect on a
substantial number of small entities.
VI, EH«ctive Dale o( the Rule
Since the instant rule i* raanJestly
one wijj) wruch the reflated community
does not need six monihi for for that
natter, any time) to come inio
compliance, see 42. U.S.C, eSJO'sK')- "
will take ef/eci immed.ately 9y making
the rule effective immediatefy E?A
intend* to eliMmate any ccrhjiion
which might otherwise ex;jt as 10 what
procedures to follow in hean-gi on any
such orders.
List of Subjects
40 CFR Port 22
Admiruitrative practice i.nd
procedure, Haurdous maierais
Penalties, Waste ireatmen! di9;c«ai
« CFR Part :4
Adminiitrative prectice tr.d
procedure. Corrective action. H»infdous
matentla, Pen«ln*«;Re\ocanon of
operating authority.
Ootd. April 3. 19U.
LM M. Pionwi.
Adminumtor.
For the reasons set out LT. %?te
Preamble. Title 40 of u\e Cote 3? Federal
Reguiations is amended »i ';.'a»i
-------
Federal Register / Vol. 53. N'o. 71 / Wednesday. Ap.-.l 13. IHgfl_/ Rules and Regulator.* 12263
PAST 22-CONSOLJOATEO RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CIVIL PENALTIES AND THE
REVOCATION OR SUSPENSION OF
PERMITS
V The authority cildlian Jot Part 22
continues to read as fellows:
Authority: 15 U S C tec. :8!5. 42 L' S C.
MCI rwi i.-,d -K1 r L1 S C jeo 13DIM *nd
l«.|. 53 U S C «CJ 1415 and iJSS: 42 U S C
MCJ «9U, W2B, «ncid ana ufO.al
rec^?i
;j C* F ; "q and jer*. n.« jf orue.'i, decisions.
•fffl "..;-.;rneTvj
".40! R»>pj"!« (u ih* in.::,-,i artier re-j-jrji
fn- hc«-.ig
IJ 06 Qci;,-"dfian of Trcs.i.ng Offu.ef
:•! C? Ir.'snrn! icnlemcr.i conference.
*j ilfl 5 (he Re^-jial
AJminiitratsr or after ihirty dnvi from
usuanee if no tearing 11 rerju^sted. ihe
order shai! be referred so as a final
administrative order V\ here the ord*r is
agreed to by the paries, the order ^hnl)
be denominated as a final
ddnunisirativff irdfr or. cons-n!
(b! The ;r,:-:£! j-J— :r-s:ranve c*ei-r
shall be tTec.ied b1. -n auihor^fl
ofHeial of EPA (petiiiur.eri. other than
the Reg'.or.il Ad~;r,ist:;'or cr the
ASJUM.-I Afl.Tt-.iji-d'cr .'or ihe Ofi'^s of
5ii.d\V,iii« I'.e E-e-aT.ri
Fo.' orders issued by EPA Headquarter*
rather than by a Regional office, a'l
references m these procedures ID »-.-.•
Regional Adrrtinutrator shall be
underssood to b* 10 the Ajsistar.t
Administrator for Solid Waste and
Emergency Response or his delegate
(c| The inilial administrative orrfer
shall contain:
(1) A reference to the legjl aulhonly
pursuant to which (he ordir is issued.
(2) A concise statement of the fdcnial
bdi s upon which the order n issued.
and
[3] Notification of respondent's right
to request a hearing wish r*5p*ct to any
issue of mafcn.ii fact or the
appropriateness sf the proposed
corrective action.
} 24.03 MamtMtanc* o! doftot and official
(a| A Clerk shal! be designated by the
Regional Administrator to receive at!
initial orders, final orders. Hec-.nons.
responief, mtfrnirar.da, and document!
regarding the ordsr and to maintain the
official record ar.d docket.
(b) On or before the date the initial
order is served on respondent th* EPA
office iistutng the ordir shall deliver lo
the Clerk [a copy of) the sdmimslraiive
record supporting the findines of fac:.
determinations ol law and relief sough;
in the initial administrate order This
record shall include »l! relevant
documents and oral informal on fwhich
ha) been reduced lo wniingl whinh the
Ajency eonsidsred in th? process of
developing and issuing the order
exclusive of privileged internal
communications. The gdmir.strdtive
record delivered to she Ce-» ni.si have
an index andfte tvaiUble fjr renew in
the appropriate Agenc> Reg.o.-.al or
Headquarters office dur-na r-.o-n i!
business Snu*s afte' rhe crd»c •« .<«m-l
) Jl 04 fitinQand ternct ef 3'3t'L
a*ci«j«ni.
|al Filir.% of erven, eirc t'cr* <*:nl
!s. The ongtr,«i aicJ one copj nf
the minal admmistrdtive o'lf the
recurr.rr,ernJed decision c! :*« Pr«jiu:ry
Officer, trie Hnai Jecu-on jr.d ;.-.e f>nai
adinmissrative order and cr.e c;p> o'
the administrauve recori J,*d an mde»
(hereto must De f:lea w.i -ne C -r»
desingted for j*ct;or. :X"5,,- T-iers. In
n. alt -nemcranca a"s . .t-jmrn's
ed m :hc prsccfs--: »' • ^°
field with trie Clerk
To! Sc'.'v;;? tff'f/X'e-} -" '. ' • "'
.-jtirtft The ClerV !o-* .-• "« ' ••>• •'• '^
initial admtntstraiive :rc»- »-• :"^
designated F.PA *rr,?ic- ff i"' v ,P.J«
For ihe^ffectuatiort of >»•> •" *•
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Federal Register / Vol. S3. So. ~l I Wednesday. April 13. 19M / Rule? and Regulations
recommended decision of the Presiding
Officer, the final decision, and final
adrr.i.-usraine order. Service o.' a copy
cf the initial administrative order
together « i'h a ccpy of these
procedures, the recommended decision
of the Presiding Offictr. the final
decision, or a final administrative order.
mail be made personally or by certified
mail, reium receipt recuested or. if
personal service cannot be effeciuated
or certified mail 19 returned refused or
unsigned, by regular mail, on the
respondent or his representative The
Clerk shall serve other documents from
the Presiding Officer by regular mail.
(cj Service of documents filed by the
parties. Service of ail documents, filed
by me parties, shall be made by me
parties or their representatives on ether
parties or their representatives and may
be regular mail, with :he original filed
with the Clerk. The original of any
pleading, leuer. or other document
(other than exhibits) shall be i.fried by
the party filing or by his counsel or other
representative. The signature constitutes
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 is not interposed for delay.
(d! Service :r> genera! Service of
orcers decisions, rii;ir,gs, or documents
b> either tr.e Clerk cr the parties shall.
in the case of a domei:ic or foreign
corporation, a partnership, or other
Lr.:ncorpa:a!ec association, which is
subieci to suit under a common name.
be made, as prescribed m 5 2-4 04 {b| and
(c). u?sn an officer, partner, managing or
general agent, or any person authorized
by appointment or bv Federal or State
law ;c receive servce of process.
{ei f'sci.'t e c'cte o' ser\'ice Service
of 'he initial adfr.ir.mrain e order and
final administrate e order u complete
upcn receipt by respondent (or the
respondent's agfnt. attorney.
representative or other penon employed
by respondent and receiving such
service), personally or by certified mail.
or upon mailing by regular mail, if
personal service or service by certified
ma:! cannot be accomplished, in
accordance w.ih J :•) O4'bl Service of
all other pleadings ar.d documents is
complete upon maii-fa except as
prc\ iced in { 5 2\ lOib'i and 24 n[e}
{ 74 OS Rtieonte io trt miiial ordtr;
rtqvtil lor Rearing.
(a) The T.itial administrative order
becomes a final administrative order
th..-;. U01 (Ja>s after sen. ice of the
order ^riess the respondent Mes with
tr* Ci?r» vMtrs;-! :r..rtv 1301 d«is niter
service of :he order, a response so the
innai order and requests a hearing,
(bl The response :c '.he iniuat ordsr
and reqaei: far a hearing must be in
writing ane rrta nor
tecr.r...ca > ;r~: sx ar.d are necessary
to protect human health anc she
environment pnor to development si a
permanent remedy.
"he hearng procedures J*t fo-:h .n
Subpart B cf '.his part sha.l b« ernpiojed
for any requested hearing. If the
respondent setki a hearing on in order
directing that corrective measures or
such corrective measures together with
investigations/studies be undertaken.
the hearing procedures set forth m
Subpart C of this part thai] be
employed. The procedures contained m
Subpartj A and D of thu part shall be
followed regardless of whether the
initial order directs respondent '.o
undertake an investigation or implement
corrective measures.
Subpart B— Hearings; on Orders
Requiring Invtsitigitlensi or Studies
i 24.69 Qu«Ufl«*tient of Pretidinq OMletr
ei pane diacuiUon or IM pfoe**ding.
The Presiding Officer shall be either
the Regional ludicial Officer {as
described in 40 CFR 12. M(b)) cr another
attorney employed by the Agency, who
ha» had no pnor 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, Prend.ng
Officer, or any person who will advise
these officials in ine decision or. the
case, discuss ex pane She merits of the
proceeding with any interested person
outside the Agency, with any Agency
staff member wno performs a
prosecutonal or investigative function in
such proceeding or t factually related
proceeding, or with a.-u representative
of such person. If. after issuance of the
initial order and prior to issuance of th;
Final order. theRtgional Ac'-ifvr.'rator.
Presiding Officer, or any person \.ho
will advise these officials tr, tr.e ,'easior.
on the case recedes from or on behalf of
any party in an ex pane dJ.-rriun'CAiion
information which is recant to the
decision on the ease a-.'.i to whn.h other
parties have not had ar. apssrt^r. :\ tc
respond, a summary of sue", tr.fjrrr.ation
shall be ser\ sd on all o:ner part.es. wnc
shall have an cpporurv;> to rsplv ;o
same w:ih.n ien [lOi dais c' sc-v.re c:
the summary
| 24.10 SeHMullng tr* <-.i:r
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Federal Register - vol. 53. .NO.
.ADI-:! ;j. igas / RUes and Refl',U:;cr,5
1226
ea dftd he d v, •!;-:- '.•,,:;•, '301
day j sf ir* Agenc> i rtstipt :'. ;he
reouest fora public hea.'ir.s
|!)i P"e-re5r:?:g s±Snisf:o!is i/
rcsponjenl ,\\ jnv time up !o five (3]
bus.ness dd> s before the rvjri-g
responjen -nav. but is not required !0.
suamu :cr inclusion in the
acrfiir-.isirsnve record informahon anj
argument supporting responCeni s
positions on the facts la* and .-ei.tf. d)
each relates ro the order in question. A
copy of any i.-.farmaiior, or argument
submitted bv respondent shdll be served
such ihdt the Clerk ar.d petitioner
receive same at .'sail five 151 business
day! before hearing,
(e! Pos:p(in/nfr,t o'heG~:r.<$ The
Presiding Officer may grans an
eiMension of lime For ;hc conduct of the
hearing upon written request of eiiner
party, for good cause shown, and af:c-r
consideration ef any pretudice to other
pariies Thi Presiding Officer may not
eiiend she date by which :he request for
h?a.-:.-.g :s due unJer { :40S(a)
(d' LSCOHGZ af faor.n; The hearing;
shall be held m the city ir which the
relevant EPA Regional Office is located.
ur.icss ;he Pressing Officer de'ermir.es
that there :j good cause lo hc!d it m
another location,
j 34 1T Hearing; oril prei«nution« ind
*mn*n tu&TuMioni ey mi panics.
The Pres:d.Rg Officer shall conduct
(he hearing in a fair and inpartul v^ay.
ta»,r;s action as neesed ro avoid
unnetessarv' de.a>. exclude redundant
rr.a'.er,*': a-d .Tiair.rain order durine Jfie
^raceecirgs Represent*:.\ ej of EPA
s-ali ifiirsc.ce inc sa.-;;r;;sirat.\e record
a.-d be yreyi'cs tj sumrr.jrue the oasis.
fcr :he oraer T-.i respondent jhali have
a reajonjs.c oppcrfuinj to sddfesi
fc.e1. an: isiccs dr,c! present nj views
:rirsujn iegaj cc^nse! or technical
a;v,»ors The Presiding Of.':cer may also
ai.sw tecMicd; ana legai «ji5CLi5Sior!j
ar.a interchange* bei^eer, if\c paniM.
i.",c!ud:.-g responses to questions lo the
en-en Deemed appropridte, U n not the
Ajje-r;. s ,-'.-.-.( to proved* EPA or
r^iponjun; an opportunity to engage in
d.rec: fjarmai,on or croM-exammation
of wnnesses The Presidim OfTicer may
jdJresi questions to the rtipondenl j or
EPA i reprgsentativ«(j| dunng the
hearing Cdch party shall insure that a
rrpreier.taiiv*!)! is l«re) present at :h«
"earing, wno u (are) capable of
responding 10 quest.ens and ariicuiatmg
'hat ?a-'i> j position on ;he law a/id
?.ic:» n u»ue Uhere respondent a>n
dftnorisirat* tn^t ihroug". no fjult jf it>
nun cenain dojjmeti!) sjpporiiveofitj
union could nor hjve been Submitted
'ore hear;.i^ m accoreldnce with :.ke
^jiremer.u of J 24 10|b(. i( rnay jubmii
Swefi dotL.T!e"'s a: 'he hejftrg
Otherwise no "en. dccumer:.iry support
may be subrr.iiiea at hedfi'g. The
Prejid.ns Officer T.JV upon request
grara penitor.er leave tc resjonu to
suDmusions made fay respondent
pursuant so th:s section or 1 ;* I0(b|.
The Presiding Officer jnai! haie ihe
discretion to oraer either party 10 submit
additional informal.an finciud.ng but not
limited to posiheanr.g bnefs on
•undeveloped factual, technscat. or legal
matters) m whatever form he deems
appropriate either a: or after the
hearing.
{ 24.11 Summtry af hf •nrifl, Pf^nalnfl
Orfic»r f r*CQmm«noiilan.
(al As soon as practicable after the
conclusion of the hearing a written
summary of the proceeding shall be
prepareo. Thus summary shall, at a
tTT.nimum, identify;
II) The dates of and known attendees
at the hear.r.g and
(2J The bases upon which the
respondent contested the terms of the
ordef
The summary muss be signed by (he
Presiding Officer.
fb) The Presiding Officer will evaluate
(he entire administrative record and, on
the basis ol that review and the
representations of EPA and respondent
at the hearing shall prepare ar.d file a
recommended decision with the
Regional Aa.T.imjtraiur The
recommended aeciswn must address all
material issues of fact or law properly
raised by respondent, and roust
recommend that !ne order be modified.
withdrawn or issued without
modification. The recommended
decision must provide an explanation
with citation to material contained in
the record for any decision to modi!} a
term of the order to issue the order
without cnarge. or to unhdraw the
order The recommended decision shall
be based on '.he administrative record. If
the PrMiJiHg Offuer fi::cfs 'r.dt any
contested rc:scf pro*:s;s.-. in the ori-'e; is
not siippor'iyJ by a prepjr.derante of the
evidence m the record, the Presiding
Officer sf.aii recommend '.rut th* order
be modified and issued on terms ttiat
are supported by the record or
withdrawn.
(c) At any 'ir.e within twenty.one (II)
days of service of the recommended
decision on the Daniel, the parues may
H!e commen'.s on the recommended
decision w:tn the Clerk, The Cl«rrk shdll
promptly transmit any juch comm«n«s
received io the Regional Adminisfrator
for his cofis,ae.-aucn ]n rejchuig a finu!
decision.
Subpart C— M»»rtngs on
Rtqutrmg Corrictivi Mta*ur««
f K.I) Ou*lioni ol Prttidmg Olfictr
ti Dint BI»CU«IJOO 01 tfl* proc**amg.
fa) Qualification of Presiding Orf:c?r
The Presiding Officer shall be either :he
Regional Judicial Officer {as descnbtd
in « CFH 22,W|b!) af another attorney
employed by the Agency, who ha* had
no prior connection with the case.
including the performance of any
investigative or prosecuting functions,
(b) Ex pane discvssttjn of the
proceeding. At no time after usuance of
the initial administrative order and prior
to issuance of the final order shall the
Regional Administrate;. Presiding
Officer, or any person who wit! advise
these officials m the decision on the
case, discuss ex parte tm> merits of the
proceeding with any interested person
outside the Agency, with any Agency
»ia/f member who performs a
prosecutonal or investiga'tiie function in
such proceeding or a factually reldted
proceeding, or vuth any representative
of sucb person If. after issuance of the
initial order and prior to issuance of the
final order, the Regional Administrator.
Presiding Officer, or any person who
will advise these officials in the decision
on the case receives from or on behalf of
any parly in an ex pare cornrr.ur.icanan
information which is relevant 'a ;r,e
decision on She case ar.d ;o \*r,ich other
parties have not had an cpport^.-niy to
respond, i summary of SwC" ir.fcrrnation
shall be served on »', siher parties wno
shall have an oppor'j.-..!v -o .-epiy to
same within ten i 10) cays of service of
ir.e summary
j 14. 14 tcnrd'.'lpg tnt htin-g: prt-
hunng luBmiuioni Oy me jirm,
(a) The Presiding Of:'n.e: »ha.;
establish an expfdinoui si.-eduie for
(U The submission 5y .-eipop-2e.it of a
memorandum, wuh asprop' a'e
affidavits and exhibus s'a:.rg ard
supporting respor.oer,: i pc» ' en on !he
facts, law and reiie! spec. :>•••? ",e
bases upon and manne- ..-. »ft-;-. s^ch
deterrnmations or reiief ?r-^ : sr.j if
erroneous, require moc.;.c4' ;- if
withdrawal of the order
(2) Submission of a rMBc.-ie :> f FA
and
[3) A public heari-;
Subiect to i 24.H(bt a hea- -j »-».' -ji-
scheduled within 45 cjjn :r " t :• ;e-
setting the schedule ~"< ?-n - -i
Officer shdil «s:aoiisr! :^f ;<« -?
location and agenda .'or •-.» -»*• - i an j
shall transmit ihis ir,r; — t " - ""•
parties along with :r.e ic'r :.• • "e
hearing.
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12256 Federal Register / Vol 55,
Acr! lk>e Pres dira Officer
Ijniess an evter.siur is granted
!e! Jv'3-•:ia.c-n ff'ccn.-ti-jrc1
ir.'amc:.:r The Hres.i.ng Off'cer she!!
ba\ e ins c.sermon to araer either p-tru
10 suD.ri! acd iiuRd! informaiicn
(incJu.-i.r.g bu: not hmitod 10 pcst-heanri)
br:«?s e" .ncsveioped fdc'u*!. tccnniCfll.
or legal rratiers! in whatever form he
decrr.s appropriate either before, ai. or
after the hearing The Prending Officer
may issue subpoenas for the attendance
and testimony of persons and the
production of relevant papers, books
and document. Since ineje hearing
procedures pra\ide elsewhere ihat the
parties ire not to engage in direct or
croii-exarRmaiion of wtnesses. the
subpoer.a power 11 to serve only ai an
adjure: to the Presiding Officer's
authomy to ask questions and otherwise
lake steps to oar.lv (actual matters
which are :n dispute. Upon request of
ihe respondent the Presiding Officer
may. in rus d.ic.-eticr. allow submiiijl
by tee respondent of additional
ir.farrr.aiior. ;n support of as claim, if :t
is receded b> the Clerk and petitioner
a! lessi f.-,« !3| Dus.oess cjj s before the
hean.-.g
(;"i Lccsf.sn offiesnrg The hearing
shall be heid in ir.t city in which the
relevant EPA Regional Office s located.
unless i.-e Presiding Officer determines
tha: there u gooc cause to hold it in
anoi.iE: iocalton.
5:415 Htann^i erat prtatnlaltoni and
wntlen luBmufcon* By tn« parties.
(a) The Presiding O.'Hcef shall conduc:
:he hear.r.g -.71 a fa;r and impartial
~anner :ake ac::on ;o avoid
u.-.neccjsar. delay in the disposition of
the proceedings, tfid rr.ainiiir, order.
The Pres.d.ng'Officer shall perrr.'t oral
srateT.ents on behalf of the respondent
and EPA The Presiding Of/icer may
address questions to the respondent's or
Ihe E?A'$ rcpresentativefsj dar.ng she
hearing Encrj party thai) ensure that a
representasivets) ii (are! present a! trie
hcarnji who :s (aril cap.ible of
responcii-j :o c ies!:cns and art.cuiatins
that pir'> s ;cb'.;ton on :he law *r,d
facts at issue. Ap^rt frcm questtnr.i by
Ihe Presiding Officer, no direct
•xamration or cros5-«\jrnmaiion shall
be alicwrd
(b| Upon jjmmencernf nt of the
hearing, a representative of EP"i jhal!
introduce ihe order and record
supporting issuance of :he order, and
summar::* T.e basis for the ordtr. The
respcnden! rrdy respond to the
adrnin.stra:-,', t record and offer any
factr siateT.er.u explanations or
doeumeni" wh,rh bear on any issue for
which ihf heanng has been r*qu**ted.
Any s.cri p-eseni^: cr bv respondent
may i.iclurff .-eu d:cp..-.c":s •-..•, t,.-; T,
extent :r.j! responcer-t can c-mcrsr-s1
thdt. shrougT -.3 fa-!: c( ,;s u-.v - *-;-
docL-menis :c-.ic :ci havs -KB^
subrr,i:'rd befcfe Scaring r; accjrdjnci
wiih ihe re5-:r«~-.enLj of 1 II ',4 'c! arc
(e) The Agency rr.jy then pfcser.i
matters soleij in rebuua! :o mdtters
previousl>- presented by the respondun:
The PresiCing Officer ma> dllow the
respondent ;o respond :o any such
rebutul submitted. The Presiding
Officer rrid> «\c..di: repeiitive or
irrelevant mdlter The Presiding Officer
may upon reij.ts: grant petitioner !eav c
lo respond to submissions made by
respondent pL.-saani 10 :h:s parajjrap'n
or j 24 14!,el-
1 14.18 Tranvenpi er nearainq a) ntirtn;
(a) The hearing shall be either
transcribed stenograprficail> or upc
recorded. Upon writsea request, such
tianier.pt or ;ape recording shall be
made available for inspection or
copying. '
(bl The transcript or recording of the
hesnog and alt written subrniitals Tiled
wiJi the Clerk by the parties subicquer,
to musal issuance of tne order including
post-henr:ng subm.isions will become
part of :he adrnimstraiive record for the
proceeding, fo: ccnsiderztion by the
Presiding Officer ar.d Region*;
Administrator
j 24.17 PfMiflifig
r»ca:rn:or The
recommended decs. en m u5t oddrtsj all
material issue* of fact sr a« prtrpcrlj
raised by ressarccr- a'.sr.jsi
recommend iha; :".« orce- be rod fn-ii
withdrawn or iss_;d « •-;„•
modification T'e ";,-'-' f^<- i
decision rnust prr> ••'-.-•-. r . -.,-. ,n
wish caaticin to -,a'r- ^ - - - .- ••••.,• n
th« record for ar\ i?c -, c- •• rr-:i t\ a
term of the order in .i* .t :• : orser
without shanse or 13 ». '-.--i* -~.e
order. The recarr.r.er.af ; :•: s'on s!u.'
be based on the sc.T.,n.s:r«r se reccrd 1
the Presiding CFf.cer f.r.ai -in1 any
contested re'sef pro ision -n the order s
not supported b> a prepo-.cerance of fr.t
evidence in the reea-d "t P'-jt.dir.a
Officer shall f;co-nrrj,-d •••»> ihe era'-"
be modified and j>jr- 7- c-r.i :."..!•
are supported t;. "*•»:-•: :r
withdrawn
(bl At any time <• "• • •-<:-", -cie {ZT>
dars of scn.-i:t c'" ~t-t-.: — c-dfd
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Federal Register / Vol. 53. No. 71 / Wednesday. April 13, 1968 / Rule* and "Reiutaiions^ 12267
iacmori on the parties, (he parties may
Ke comment") cfl the recommended
csc;i>or, wi:h she Clerk. The Clerk shdi!
prcmptly transmit any luch commer,:s
received la :re Regional Administrator
for his consideration m reaching a final
cecis.on,
Suctp«n D— Petit-Hearing Procedural
(24.11 rinii a*ciuon.
As soon as practicable <
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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 addressl
The administrative record for the corrective action consent
order issued today by the Environmental Protection Agency (EPA)
to
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Please note that the contacts fcr this doeur.ent are now Nancy
Parkinson, OWPE (FTS 475-9325), and Steve Botts, DECK (FTS 382-
5787).
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