Guidance Memorandum on Use and Issuance of Administrative Orders Under
Section 106 (a) or CERCLA
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9/8/83
OSWER DIRECTIVE # 9833.0
GUIDANCE MEMORANDUM
ON
USE AND ISSUANCE OF ADMINISTRATIVE ORDERS
UNDER
SECTION 106 (a)
OF CERCLA
TABLE OF CONTENTS
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Requirements for Issuance and Scope
of Section 106(a) Administrative Orders . . . . . . . . . . . . . 4
A. Necessity for "Determination" . . . . . . . . . . . . . . . 5
B. Necessity for Actual or Threatened
Release of Hazardous Substance . . . . . . . . . . . . . . . 6
C. Necessity that Release or Threat
of Release be From a Facility . . . . . . . . . . . . . . . 7
D. Necessity for Existence of Imminent
and Substantial Endangerment . . . . . . . . . . . . . . . . 7
E. Notice to Affected States. . . . . . . . . . . . . . . . . . 9
III. Persons to Whom an Order May Be Issued. . . . . . . . . . . . . .10
IV. Criteria for Issuance of Section 106 Orders . . . . . . . . . . .11
A. Responsible Parties' Financial Status. . . . . . . . . . . .12
B. Number of Responsible Parties Subject to
the Order. . . . . . . . . . . . . . . . . . . . . . . . . .13
C. Specificity of the Necessary Response Action . . . . . . . .14
D. Agency's Readiness to Litigate the Merits
of the Order . . . . . . . . . . . . . . . . . . . . . . . .16
E. Competing Consideration. . . . . . . . . . . . . . . . . . .16
V. Orders Relating to Removals and Remedial Actions. . . . . . . . .17
A. Immediate Removals . . . . . . . . . . . . . . . . . . . . .17
B. Planned Removals and Remedial Actions. . . . . . . . . . . .19
VI. Procedures for Issuance of Section 106 Orders . . . . . . . . . .19
A. Planned Removals and Remedial Actions. . . . . . . . . . . .20
B. Immediate Removals . . . . . . . . . . . . . . . . . . . . .21
VII. Opportunity to Confer . . . . . . . . . . . . . . . . . . . . . .21
A. Planned Removals and Remedial Actions. . . . . . . . . . . .22
B. Emergency Situations . . . . . . . . . . . . . . . . . . . .22
C. Conference Procedures. . . . . . . . . . . . . . . . . . . .23
D. Modification, Revocation or Stay of
the Order. . . . . . . . . . . . . . . . . . . . . . . . . .24
VIII. Procedure if Order Not Obeyed. . . . . . . . . . . . . . . . . .24
IX. Note on Purpose and Use of This Memorandum . . . . . . . . . . .25
Appendix A: Notification Letter
Appendix B: Sample Section 106(a) Administrative Order
MEMORANDUM
SUBJECT: Guidance Memorandum on Use and Issuance of Administrative
Orders Under Section 106 (a) or CERCLA
FROM: Lee M. Thomas
Acting Assistant Administrator for Solid
Waste and Emergency Response
Courtney M. Price
Special Counsel for Enforcement
TO: Regional Administrators, Regions I-X
Regional counsels, regions I-X
Air and Waste Management Division Directors
Regions I-X
Regional Superfund Coordinators
Director, Office of Waste Programs Enforcement
Associate Enforcement Counsel, Waste Division
I. Introduction
The administrative order authority which the Environmental
Protection Agency (EPA) exercise under Section 106(a) of the
Comprehensive Environmental response, Compensation, and Liability Act of
1980 (CERCLA) and Executive Order 12316 is one of the most potent
administrative remedies available to the Agency under any existing
environmental statute.
Section 106(a) of CERCLA authorizes the issuance of "such orders as
may be necessary to protect public health and welfare and the
environment," after notice to the affected state, upon a determination
that "there may be an imminent and substantial endangerment to the
public health or welfare or the environment because of an actual or
threatened release of a hazardous substance from a facility." A fine
not exceeding $5,000 per day may be imposed for willful violation,
failure or refusal to comply with a Section 106(a) Order (Order), and
punitive damages of up to three times the cost of clean-up of the site
may be imposed under Section 107(c)(3) for failure, without sufficient
cause, to properly provide removal or remedial action pursuant to such
an order. In view of the magnitude of these penalties, the Agency
expects that the regulated community will comply with administrative
Orders. At the same time, the Agency's obligation is to ensure that
Orders are properly issued.
It is the current policy of EPA that, whenever possible, parties
who have caused or contributed to a release or a threat of a release of
hazardous substances at a site should rectify the problems at the site.
This action is necessary to ensure that the Agency efficiently manages
the limited funds available under CERCLA and to ensure that the maximum
number of sites are addressed.
Accordingly, after the Agency discovers a site and in advance of
completing a Remedial Investigation and Feasibility study (RI/FS), (and
has conducted an endangerment assessment, or their equivalent),
responsible parties normally will be sent a notice letter requesting
them to clean up the site. Following completion of the feasibility
study, the Agency normally engages in discussion with responsible
parties in an attempt to obtain promptly the agreement of such parties
to voluntarily undertake the necessary response actions. If the
discussions are successful, the terms of the agreement will be embodied
in a judicial consent decree or a Section 106 administrative consent
Order.
In circumstances where the Agency wishes to compel a responsible
party to undertake the response actions, including instances where no
settlement can be reached, the Agency will consider issuing a unilateral
Section 106 order in accordance with this guidance.
The administrative enforcement authority is an important component
of the Agency's enforcement program authorized under CERCLA. This
guidance is being issued to assist the regional offices in developing
and maintaining an effective CERCLA administrative enforcement program.
The effectiveness of the program will be enhanced as site remedies are
implemented by Respondents in compliance with administrative orders, and
as enforcement of Orders with which Respondents are not in compliance is
successfully and expeditiously pursued by EPA. The Agency will
aggressively defend judicial challenges to orders and enforce instances
of non-compliance to validate the CERCLA administrative enforcement
program. Regional offices should issue orders consistent with the
criteria and procedures contained in this guidance to ensure the legal
sufficiency of the program.
The Section 106 administrative order authority provides strong
incentives for Respondents to undertake expeditiously response actions
deemed necessary be EPA to ensure protection of public health or welfare
or the environment. Therefore, Regional offices are urged to consider
the use of unilateral CERCLA administrative orders in every case where
compelling enforcement authority is necessary. Criteria are provided
herein to assist regional offices in determining whether Orders are
appropriate in any case. It is essential that a balanced CERCLA
enforcement program is implemented by EPA, combining administrative and
judicial enforcement authorities, to ensure protection of health and the
environment from the hazards of releases or threats of releases of
hazardous substances.
II. Requirements for Issuance and Scope of Section 106 CERCLA orders
A comparison of Section 106(a) and Section 7003 of the Resource
Conservation and Recovery Act (RCRA) reveals similarities in the two
sections, and therefore many of the criteria for issuance of a Section
7003 order also apply to Section 106 Orders. (See footnote 1 below) In
many situations, either Order would be appropriate. Where the hazardous
substances are also "hazardous waste" under RCRA, the Order should cite
the authority of both sections.
============ Foot Note ================
1 Guidance on the use of RCRA Section 7003 administrative orders may
be found in a memorandum entitled, "Issuance of Administrative
Orders Under Section 7003 of the Resource Conservation and Recovery
Act" dated September 11, 1981.
=======================================
Section 106(a) of CERCLA provides as follows:
In addition to any other action taken by a State or local
government, when the President determines that there may be an
imminent and substantial endangerment to the public health or
welfare or the environment because of an actual or threatened
release of a hazardous substance from a facility, he may require
the Attorney General of the United States to secure such relief as
may be necessary to abate such danger or threat... The President
may also, after notice to the affected State, take such action
under this section including, but not limited to, issuing such
orders as may be necessary to protect public health and welfare and
the environment. (See footnote 2 below)
In order for an Order to be issued, the following legal
prerequisites must be met:
A. Necessity for a Determination Based Upon Evidence
A determination must be made that, because of a release or threat
of a release, an imminent and substantial endangerment may exist. This
determination will depend upon documentary, testimonial, and physical
evidence obtained through investigations and inspections. Other
information concerning the nature of the threat posed by a site may
already be contained in Agency files, such as data generated pursuant to
Section 103 of CERCLA or the permit and notification sections of RCRA.
The Order, therefore, must include a finding that an imminent and
substantial endangerment may exist, in order to ensure that this
statutory requirement is met. (See sample order, Appendix B, Finding
No. 7).
============ Foot Note ================
2 The President has delegated his authority under this Section to the
Administrator of EPA and The U.S. Coast Guard by Executive Order
No. 12316 dated August 24, 1981. EPA and the Coast Guard have
entered into a Memorandum of Agreement dated October 9, 1981, that
all site-related releases in the Coast Guard's jurisdictional areas
(coastal zones, Great Lakes, ports and Harbors) shall be the
responsibility of EPA.
=======================================
B. Necessity for Actual or Threatened Release of Hazardous
Substance
Section 106 requires that the imminent and substantial
endangerment be caused by "an actual or threatened release (See footnote
3 below) of a hazardous substance" from a facility. A "hazardous
substance" is defined in Section 101(14) of CERCLA, and is generally any
substance, waste or pollutant designated pursuant to Sections 307(a) and
311(b)(2) (A) of the Clean Water Act, Section 3001 of RCRA, Section 112
of the Clean Air Act. Section 7 of TSCA or Section 102 of CERCLA.
(Crude oil, fractions thereof, natural gas, and liquified natural gas
are exempted from statutory coverage.)
Whether a release from a facility is "actual" or "threatened"
primarily depends upon temporal considerations. Actual releases should
be observable in some form either visually or through analysis showing
contaminants present in samples of soil, water or air. A "threat" of a
release, on the other hand, involves releases which have yet to occur or
have yet to find their way into the environment. A bulging tank
containing a hazardous substance in which pressure has built up, and a
surface impoundment which is about to overflow because of heavy
rainfall, present obvious threats of a release. A threat is also
presented by corroding or leaking drums containing incompatible wastes
mingled in a common area. Accordingly, the determination on whether a
"threat" of a release warrants issuance of an order is judgement
decision to be made on a case-by-case basis.
The nature of both the hazardous substances present at the site and
the release or threat of release should be set forth as findings in the
order, together with the bases for such findings.
============ Foot Note ================
3 A "release is defined in CERCLA Section 101(22) as" any spilling,
leak, pumping, pouring, emitting, emptying, discharging, ejecting,
escaping, leaching, dumping or disposing into the environment,"
with certain specific exemptions (e.g. release solely in work
place; engine exhaust; release of certain nuclear material; and
normal application of fertilizer).
=======================================
C. Necessity That Release or Threat of Release be From a Facility
The release or threat of release must be from a "facility," which
is defined in CERCLA Section 101(9) as:
(A) any building, structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or publically owned
treatment works), well, pit, pond, lagoon, impoundment, ditch,
landfill, storage container, motor vehicle, rolling stock, or
aircraft, or (B) any site or area where a hazardous substance has
been deposited, stored, disposed of or placed, or otherwise come to
be located; but does not include any consumer product in consumer
use or any vessel (a Watercraft or other contrivance used, or
capable of being used, as a means of transportation on water).
This definition of "facility" includes on-shore or off-shore sites,
including land transportation facilities, from which releases or threats
might originate. The Order must specify the physical location that is
the source of the release.
D. Necessity for Existence of Imminent and Substantial
Endangerment
Evidence presented to support the issuance of Section 106(a) order
must show "that there may be an imminent and substantial endangerment"
to public health or welfare or the environment.
The words "may be" indicate that Congress established a standard of
proof that does not require a certainty. The evidence need not
demonstrate that an imminent and substantial endangerment to public
health or the environment definitely exists. Instead, an Order may be
issued if there is sound reason to believe that such an endangerment may
exist.
Evidence of actual harm is not required. As the Court stated in
Ethyl Corp. v. EPA, construing an endangerment provision in the Clean
Air Act:
The meaning of "endanger" is not disputed. Case law and
dictionary definition agree that endanger means something less
than actual harm. When one is endangered, harm is threatened;
no actual injury need over occur. (541 F.2d 1 at 13,
footnotes omitted, original emphasis, D.C. Cir., cert. den.
426 U.S. 941 (1976).)
It should also be noted while the risk of harm must be imminent in
order for the Agency to act under Section 106, the harm itself need not
be. (See the legislative history to the "imminent and substantial
endangerment" provision of Section 1431 of the Safe Drinking Water Act,
H. Rpt. 93-1185 at 35-36.) For example, EPA could act if there exists a
likelihood that contaminants might be introduced into a water supply
which could cause damage after a period of latency. One must judge the
risk or likelihood of the harm by examining the factual circumstances,
including, but not limited to: 1) nature and amount of hazardous
substance involved, 2) the potential for exposure of humans or the
environment to the substance, and 3) the known or suspected effects of
the substance on humans or that part of the environment subject to
exposure to the substance.
Legal analyses of the concept of imminent and substantial
endangerment can also be found in Reserve Mining Co. v. EPA, 514 F.2d
492 (8th Cir. 1975); U.S. v. Vertac Chemical Co. et al, 489 F.Supp. 870
(E.D. Ark. 1980); U.S. v. Solvents Recovery Service, 496 F. Supp. 1127
(D. Conn. 1980); U.S. v. Midwest Solvent Recovery, 484 F. Supp. 138
(N.D. Ind. 1980); U.S. v. Diamond Shamrock Corp., 17 E.R. 1329 (N.D.
Ohio 1981); U.S. v. Price, 688 F.2d 204 (3rd Cir. 1982); U.S. v. Reilly
Tar and Chemical Corp., 546 F. Supp 1100 (D. Minn. 1982).
The nature of the endangerment and the basis for the finding of an
imminent and substantial endangerment must be set forth in the Order.
The link between the endangerment and the relief mandated by the Order
should also be evident.
E. Notice to Affected States
Finally, before an Order may be issued, the "affected state" must
be given notice of the Agency's intention to issue the Order.
The Agency is not held to a statutory period of time for notice.
Normally, written notification to the state should precede federal
action by at least one week. Circumstances may arise, however, where
rapid response at a site is necessary. In such cases, issuance of an
order may follow an abbreviated notice period or even a telephone call
made by EPA to the Director of the agency responsible for environmental
protection in the affected state. Written confirmation must follow such
telephone notice.
As indicated above, the notification should be directed to the
Director of the state agency having jurisdiction over hazardous waste
matters. A suggested form for a notification letter is attached to this
memorandum as Appendix A. This form also provides the format for oral
notice.
An "affected state" is interpreted to be the state where the
facility is located from which the discharge is being released or
threatens to be released, and in which the response activity required by
the proposed order will be taken. In some cases, this may involve more
than one state, such as where the facility is located near the border of
a state and the hazardous substances have migrated from the facility
located in one state into another state(s). In those cases, all of the
states in which the hazardous substances are found and in which response
activity may be performed pursuant to the order should be notified.
III. Persons To Whom an Order May Be Issued
Section 106 does not specify any person or persons to whom an Order
may be issued, but permits the issuance of "such orders as may be
necessary..." Section 104(a), however, refers to the "owner or operator"
or "other responsible party" as the persons to whom the Agency could
look to determine whether clean-up of a site will be done properly
before expending CERCLA funds. Section 107(a), designating those who
shall be liable for response costs, specifies present owners and
operators of a facility, persons who were owners and operators at the
time of disposal of a hazardous substance, and generators and certain
transporters who, according to available evidence, contributed hazardous
substances to the facility. It follows that those same persons could be
recipients of an order issued under Section 106(a), (see U.S. v.
Outboard Marine Corp., 556 F. Supp. 54, 57 (N.D. Ill. 1982). In
addition, in appropriate cases, it may be possible to issue orders to
parties other than those listed in Section 107(a), if actions by such
parties are necessary to protect the public or the environment.
IV. Criteria for Issuance of Section 106 Orders
Other parts of this guidance document examine the legal
requirements for issuing an order. This section's purpose is to list
specific factors which favor the use of Orders over other possible
enforcement responses. These factors include:
- Responsible parties' financial status
- Number of potentially responsible parties
- Certainty of the necessary response action
- Agency's readiness to litigate the merits of the Order
The theme common to these factors is that orders should be issued
in those situations in which compliance with the terms of the Order is
feasible, i.e., where the Respondents are in a position to perform the
ordered response actions within specified time periods. This does not
mean EPA must make a preissuance determination that Respondents will
comply with an order, but rather that compliance is practicable. If the
Agency does not anticipate compliance with an Order it is considering
issuing, the use of the Order may serve only to delay direct injunctive
action under Section 106 or the initiation of Fund-financed response.
On the other hand, the Agency may wish to issue an Order in any
situation where the needed response action and the liability therefore
are clear and straight-forward, so that refusal to comply with the terms
of the Order would not, in all probability, be with "sufficient cause"
(CERCLA Section 107(c)(3)). Such refusal would render the Respondent
liable for civil penalties or punitive damages in the event of federal
cleanup.
A. Responsible Parties' Financial Status
Before an administrative order requiring remedial work is issued,
the Agency should assess, to the extend possible, whether the
responsible party has sufficient financial resources to comply with the
Order. Financial information is available from several sources:
- Agency files contain financial information collected as part
of the identification of parties responsible for the hazards
posed by sites on the National Priorities List.
- The Securities and Exchange Commission (SEC) requires publicly
traded companies to submit detailed financial statements.
This information is publicly available. (Consult NEIC's
manual entitled "Identifying Responsible Parties" for
additional information on obtaining SEC files.)
- Responsible parties may submit financial information to the
Agency during discussions or negotiations held prior to the
issuance of and Order.
In addition, NEIC can provide further information on Respondent's
financial status.
B. Number of Responsible Parties Subject to the Order
For two primary reasons, the success of Orders for remedial action
is enhanced where there are relatively few responsible parties.
1) Coordination of Response Action
An Order issued to multiple Respondents who are jointly and
severally liable generally will not allocate individual clean up
responsibilities. (See footnote 4 below) Instead, the order will require
the same response action to be conducted by each responsible party.
Multiple parties must organize and coordinate their response to ensure
compliance with the Order's requirements. Thus, compliance with Orders
may depend upon group agreement of each member's share of the response
cost. In a large group of responsible parties, it may be difficult for
the group to develop a consensus on individual liability and perform
response activities as quickly as necessary to abate imminent hazard
conditions at a site. Accordingly, issuing Orders to all responsible
parties may not be appropriate where there are a large number of parties
who are unlikely to agree on a concerted response. Instead, the Agency
will pursue judicial remedies or consider issuing Orders to a selected
subset of responsible parties.
============ Foot Note ================
4 However, the Agency may issue an Order to a Respondent requiring a
response to a discrete, separable aspect of the hazard at a site,
notwithstanding the existence of other responsible parties or other
less divisible problem areas.
=======================================
Even in situations where orders are issued to a large number of
parties, Agency policy, which should be reflected in the terms of the
order, is that each Respondent is individually liable for compliance
with the Order's requirements. Individual liability also extends to
penalties and punitive damages imposed by CERCLA for failure to comply
with the Order.
2) Supervision
After an order is issued, the Agency conducts compliance monitoring
at the site to ensure that responsible parties comply with the terms of
the Order. Although no maximum number of responsible parties can be
specified as optimum, it is clear that the Agency's oversight
responsibility is most effectively accomplished where there are a
limited number of responsible parties.
C. Specificity of the Necessary Response Action
In order to minimize the potential for confusion between
Respondents and the Agency concerning the required response action,
Orders should be used in situations where the nature of the required
response action has been relatively precisely identified. Orders are
normally better suited to mandating discrete tasks such as drum removals
rather than less exact actions such as planning. Otherwise it may be
difficult for the Agency to supervise compliance activities, and for
responsible parties to reach agreement on a compliance plan. In most
cases, information sufficient to describe the required response actions
will be generated by the RI/FS.
An Order should contain the following elements (see Appendix B):
- The steps the Respondent must take to comply with the Order;
- The effective date of the order;
- A mandatory time-table for completion of remedial work; and,
where appropriate,
- A statement to the effect that other actions or orders may
follow.
Specific remedial action orders benefit both the Agency and
responsible parties. Responsible parties are provided clearly defined
compliance standards which will facilitate agreement among the
responsible parties on a remedial plan. If the responsible parties then
determine that the remedial work is best accomplished by a third party
contractor, the Order provides a basis for their contract negotiations.
Specific Orders benefit the Agency by reducing the difficulty of
supervision and judicial enforcement. In noncompliance situations, the
Agency may seek to enforce an order in court. A specific Order provides
the court with Agency articulated standards by which to judge the
responsible party's non-compliance with its terms. Therefore, EPA
should make every effort to clearly articulate the response activities
required by an Order.
D. Agency's Readiness to Litigate the Merits of the Order
After the Agency issues an Order, the respondent may seek judicial
review to stay the Order. Respondents may challenge their liability or
the appropriateness of the remedy specified in the order. On the other
hand, the Agency may promptly seek to enforce the order in court. In
light of these possibilities, the Agency must be ready to defend the
Order in court at the time it is issued. This means that the site
problem, the reasonableness of the required response, evidence of
liability, and the Agency's response to issues raised by the recipient
must be thoroughly documented, and that the documentation be organized
and easily retrievable. The documentation will constitute the
administrative record for any litigation.
E. Competing Considerations
The absence of the factors listed above may argue in favor of
pursuing a judicial or Fund-financed, rather than an administrative
remedy. For example, EPA should not normally issue an order if the
necessary response actions have not been clearly identified. In
addition, Agency enforcement personnel should strongly consider the
judicial course of action if:
- the responsible parties have violated provisions in several
environmental statutes;
- the opportunity for public comment on the terms of a
settlement agreement warrants the use of a judicial consent
decree, (where there is a 30-day comment period before the
decree is finalized) (See footnote 5 below); and
- there is a need for long term court oversight of a settlement
agreement, (such as in cases where an agreement calls for
separately enforceable response milestones prior to completion
of the cleanup).
============ Foot Note ================5 However, it should be noted that the Agency is exploring mechanisms
which provide for public comment on both unilateral and consent
administrative Orders. Guidance on this matter will be provided at
a later date.
=======================================
V. Orders Relating to Removals and Remedial Actions
Guidance on conducting removal actions issued by the Office of
Emergency and Remedial Response (OERR) divides the statutory concept of
removals into "immediate" and "planned" removals.
A. Immediate Removals
Immediate removal actions are to be taken only if a response is
needed within a relatively short time frame to prevent or mitigate
significant harm to human health or the environment, and such action
will not otherwise be provided on a timely basis.
Orders may be used to compel various immediate removal measures,
including:
1. Suspension of activities which aggravate an existing release
or substantial threat of a release (e.g., active use of a
storage tank judged by the OSC to be in imminent danger of
failure).
2. Suspension of activities which interfere with Federal removal
actions (e.g., plant traffic in area of cleanup).
3. Movement or non-movement of a transport vehicle (railway tank
car, tank truck, tank vessel) which is the source of a release
or substantial threat of a release.
4. Measures to limit access, such as fencing.
5. Use of readily available equipment, owned by the responsible
party, to contain or remove a release during the initial
stages of a response before the OSC is able to obtain
comparable equipment from other sources.
6. Dikings; construction of berms; or removal of the hazardous
substance to an approved facility.
(This list illustrates various uses for an Order; it is not an exclusive
compendium.)
Section 106(a) Orders, both in immediate and non-immediate
situations, must contain a statement notifying the party of EPA's
authority and the liability that may be incurred by failure to comply.
As specifically as possible the Order prescribes the response activity
and sets the date for its completion. To ensure enforceability of the
Order, EPA should not undertake its own CERCLA-funded response activity
during the period of time given to the party to respond, unless (i) such
CERCLA-funded response activity becomes necessary due to the immediacyof the release or threat of release or (ii) the Respondent formally and
unequivocally states an umwillingness to comply with the order. In the
event the party undertakes response activity, the OSC should remain on-
site to ensure that the work is being conducted in accordance with the
Order.
B. Planned Removals and Remedial Action-S
Planned removal situations are those that allow several days or
weeks to execute the response. Remedial actions, on the other hand, are
generally those intended to provide a permanent resolution to the
release and require a longer time and more expensive efforts to
implement.
As in the case of immediate removals, an order is available to
compel response measures routinely taken during planned removal and
remedial actions. "Removal activity" includes assessment programs to
evaluate the nature of the problem, and removal of material from the
site. "Remedial actions" are those consistent with a permanent remedy,
and include such activity as capping the area, trenching, and provision
of an alternate water supply. (See footnote 6 below)
============ Foot Note ================
6 See Section 101(23) of CERCLA for definition of "remove" or
"removal" and Section 101(24) of CERCLA for definition of "remedy"
or "remedial action". Those definitions contain detailed examples
of the types of activities that fall within these categories.
=======================================
EPA's position is that any activity that the Government might
undertake at a site - from planning and studies to complete cleanup-
could be ordered pursuant to Section 106(a). Of course, the issuance of
more than one order may be necessary if the cleanup is performed in
stages, or if additional responsible parties become known to EPA who
should participate in the cleanup.
VI. Procedures for Issuance of Section 106(a) Orders
CERCLA designates the President as the primary official responsible
for taking response and enforcement action under the Act. The authority
to issue administrative orders under Section 106(a) has been delegated
to the Administrator of EPA by Executive Order No. 12316, and
redelegated by the Administrator to the Regional Administrators and the
Assistant Administrator for Solid Waste and Emergency Response (AA-
OSWER). The RA and the AA-OSWER must consult with the Associate
Administrator for Legal and Enforcement Counsel (AA-OLEC) prior to
exercising this authority, and the RAs must obtain advance concurrence
from the AA-OSWER. (See Delegations Manual: 14-14.) The AA-OLEC has
redelegated the consultation authority to the Associate Enforcement
Counsel-Waste and the Regional Counsels. The AA-OSWER has redelegated
his advance concurrence authority to the Director, Office of Waste
Programs enforcement (OWPE). The Office of Waste Programs Enforcement
will Develop and issue criteria in separate guidance which will be used
to evaluate circumstances under which this advance concurrence
requirement will be waived on a Region by Region basis. Regional
offices are expected to develop strong administrative enforcement
programs, on an expeditious schedule, which will permit them to initiate
and issue legally and technically adequate administrative orders with
only prior notice to Headquarters.
A. Planned Removals and Remedial Actions
For planned removals and remedial actions, orders are drafted by
the Regional program office with the cooperation of the Regional
Counsel's office. The draft Order is forwarded to the Office of Waste
Programs Enforcement for review and concurrence. The Regional
Administrators will usually issue the Order and provide prior notice of
the action to the state.
B. Immediate Removals
For those orders which require emergency or quick handling, usually
in response to situations warranting an immediate removal, the following
approval sequence will be used:
The Regional Administrator first must determine whether to issue an
Order based on communication with the OSC and consultation with Regional
Counsel. The Region then prepares an order with any supporting
information and electronically transmits the material to the office of
Waste Programs Enforcement for review and concurrence. Notification to
the State of our intent to issue the Order should be accomplished
orally, and followed up by formal written notice.
VII. Opportunity to Confer
Agency policy is to offer parties to whom EPA has issued a
unilateral Section S106 Order an opportunity to confer with the Agency
concerning the appropriateness of its terms and its applicability to the
recipient. The conference will help EPA ensure that it has based its
order on complete and accurate information and help EPA and Respondents
reach a common understanding of how the Order should be implemented or
modified. The procedures for exercising this option are communicated to
respondents through the text of the Order itself. (See sample Order,
page 4 of Appendix B.)
A. Planned Removals and Remedial Actions
Each Order will specify a date when the Order becomes effective.
For actions other than immediate removals, the effective date should
ordinarily be twenty calendar days from the day the Order is received by
the Respondent. Certain Orders, such as those requiring that long term
remedial actions be taken, may warrant a more extensive examination of
the facts. In such cases, the Order may specify an effective date more
than twenty days removed to permit the Respondent an opportunity to
discuss the Order with the Agency beyond that accorded by the procedures
set forth in Subpart C below.
If the Respondent seeks to confer with the Agency about the Order,
the Respondent must provide written notification to the EPA official
listed in the Order within ten calendar days of the date of receipt.
The conference should be scheduled and held as soon thereafter as
practicable, but prior to twenty days from the date the order was
received by the Respondent.
B. Emergency Situations
The applicable time periods for the effective date and for
requesting a conference may be shortened, (e.g., to 72 and 48 hours
respectively), or the conference procedures may be eliminated entirely,
if the immediacy of the hazard posed by a site and other surrounding
circumstances so warrant. In the former situation, the Order should
permit the Respondent to request a conference orally, later followed by
written notification.
C. Conference Procedures
The conference will normally be held at the appropriate EPA
Regional office and will be presided over by the Regional
Administrator's designee. However, other arrangements may be agreed to
for the sake of convenience to the parties. At the conference, EPA
should be prepared to provide the Respondent with information sufficient
to explain the basis for the order and to promote constructive
discussions. The Respondent will have the opportunity to ask questions
and present its views through legal counsel or technical advisors. The
schedule and agenda for the conference will be left to the discretion of
the EPA official leading the conference, as long as the Respondent
receives a reasonable opportunity to address relevant issues.
Following the conference, a written summary of the proceeding must
be prepared, signed by the Agency official who presided over the
conference. The written statement should contain:
- A statement of the date(s) and attendees of any conference(s)
held; and
- A description of the major inquiries made and views offered by
the Respondent contesting the terms of the Order.
In addition, the presiding official must prepare a statement which
addresses the significant arguments raised by the Respondent and which
recommends whether and how the Order should be modified, together with
the reasons therefor.
D. Modification, Revocation, or Stay of the Order
Based upon a review of the file upon which the Order initially was
based, any probative information or argument proffered by the Respondent
following receipt of the Order, and the recommendation of the presiding
official, the issuing official may modify or revoke the order. Any
modification to the Order must be communicated to the Respondent as part
of a copy of a written statement containing the elements listed in
Subpart C above. The original should be kept in the Agency files along
with the evidence supporting the order, copies of written documents
offered in rebuttal by the Respondent during the conference, and a copy
of the request for a conference.
The issuing official may also stay the effective date of the order
if the conference process could not be completed within the specified
time period. Before substantially modifying or revoking an Order, the
issuing official must consult with the appropriate Headquarters or
Regional counsel and obtain the advance concurrence of the Director,
OWPE.
VIII. Procedure If Order Is Not Obeyed
In the event the party to whom the Order is issued does not comply
with its terms, the Agency must quickly decide whether to attempt to
enforce the Order by referring the case to the Department of Justice for
filing of a suit to force compliance, or whether to undertake cleanup of
the site by use of CERCLA funds, and then file suit against the party
for reimbursement of the costs expended plus statutory penalties for
failure to comply with the Order.
The determination of which action to pursue depends on the type of
response action to be taken. Obviously, if an immediate removal action
is required by the hazard at the site, EPA will clean up the site and
attempt recovery of costs and penalties in a subsequent recovery action.
The same course of action applies to a planned removal where the removal
action must be quickly undertaken and cannot await the filing of a suit.
However planned removal or remedial responses which require an extended
period of time to perform, and in which initiation of action may be
delayed for a brief period without jeopardizing human health and the
environment, may allow sufficient time for the filing of a suit to
enforce the Order, or at least that portion of the Order which calls for
the planned removal or remedial action to be taken.
Other factors which may enter into this determination include the
strength of evidence and the financial ability of the party to perform
the desired response activity. The decision of which option to pursue
is initially to be made by the Regional Administrator, in the same
manner and using the same procedures as previously prescribed for any
other enforcement action. The Regional Administrator's recommendation
is then forwarded to Headquarters for action.
IX. Note or Purpose and Use of This Memorandum
The policy and procedures set forth herein, and internal office
procedures adopted pursuant hereto, are intended solely for the guidance
of attorneys and other employees of the U.S. Environmental Protection
Agency. They are not intended to nor do they constitute rule-making by
the Agency, and may not be relied upon to create a right or benefit,
substantive or procedural, enforceable at law or in equity, by any
person. The Agency may take any action which is at variance with the
policies or procedures contained in this memorandum, or which is not in
compliance with internal office procedures that may be adopted pursuant
to these materials.
Attached to this memorandum as Appendices A and B are
- A sample letter to a state providing notification of the
Agency's intent to issue a Section 106 order; and
- A sample order.
If you have any questions or problems concerning any matter contained
herein, please call the Director, OWPE, (382-4814), or Russell B. Selman
(426-7503) or Steve Leifer (382-4548) of the Office of Legal and
Enforcement Policy.
Attachments
--------------- ATTACHMENT ---------------
Appendix A
STATE NOTIFICATION LETTER
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. R. Jones
State Agency
Division of Environmental Control
Dear Mr. Jones:
Enclosed for your information is a copy of an order (stamped
"DRAFT" and "CONFIDENTIAL") that the Agency intends to issue on or after
(date), to the XYZ Company, pursuant to Section 106(a) of the
Comprehensive Environmental Response Compensation, and Liability Act of
1980, (42 USC 9606). The order requires certain activities to be taken
at the company's site located at (location). Please refer to the
enclosed copy of the proposed order for the specific actions required of
the company and the time within which such actions must be taken. If
you have any comments or questions concerning the order, please contact
(EPA official) at (office).
Sincerely yours.
Assistant Administrator for
Solid Waste and Emergency Response
(or)
Regional Administrator
(or their designees)
Enclosure
cc: Honorable J. Smith, Governor
--------------- ATTACHMENT ---------------
Appendix B
SAMPLE ORDER
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In the Matter of )
(Name of Person, )
Firm or Corporation) )
) Docket No.____________
Proceeding Under Section 106 (a) of the )
Comprehensive Environmental Response, )
Compensation and Liability Act of 1980 )
(42 USC Section 9606(a)) )
ORDER
The following order is issued on this date to (insert name and
address of person, firm or corporation, along with facility name or
place of business if the Respondent is not the owner or operator)
("Respondent(s)"), pursuant to Section 106(a) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (CERCLA)
(42 USC 9606(a)), by authority delegated to the undersigned by the
Administrator of the United States Environmental Protection Agency
(EPA). Notice of the issuance of this Order has heretofore been given
to the State of ___________.
There is an imminent and substantial endangerment to the public
health and welfare and the environment due to a (threat of a release)
(release) of (a) hazardous substance(s) as defined in Section 101(14) of
CERCLA (42 USC 9601(14)), from the following location (the "Facility"):
(insert legal description, if known;
otherwise, use street or route address)
This order directs you to undertake action to protect the public and the
environment from this endangerment.
FINDINGS AND CONCLUSIONS
1. (Choose one or more of 1A through 1E, as appropriate under the
factual situation of the case. Do not include headings.)
1A. [(Present Owner)-Respondent is now, and has been since ___________,
19__, the (owner) (and) (operator) of the Facility, as determined from
(source or information)].
1B. [(Former owner/operator) - Respondent was, from _________, 19__,
until _________,19__ the (owner) (and) (operator) of the Facility, as
determined form (source of information). During that time hazardous
substances, including those described herein, were disposed of at the
facility. Respondent sold or otherwise transferred and conveyed the
Facility to ________ on ________ 19__, according to (property records)].
1C. [(Generator) - Respondent (disposed of) (arranged, by contract or
agreement, for the disposal or transport for disposal) of hazardous
substances at the Facility as determined from (source)].
1D. [(Transporter) - Respondent chose to accept hazardous substances
for transport to, and disposal at, the Facility as determined from
(source)].
1E. [(Other Party) (Insert reasons why ordered actions are necessary to
facilitate the abatement of the hazard, prevent the aggravation of the
hazard, or otherwise protect the public health and welfare and/or the
environment.)]
2 (Describe the nature of the facility.)
3. On or about the ________ day of ________ 19__, an inspection of the
Facility was conducted by (names), (a) duly authorized representative(s)
of (EPA, State agency). At the time of that inspection, the inspectors
observed the following conditions existing at the Facility:
A. Approximately 1000 drums of liquid, semi-solid and solid
material, which were leaking, without covers and in various
stages of corrosion, rusting and other deterioration, located
directly on the ground. Material leaking from said drums was
observed running approximately 25 yards across the site into
Crystal Creek, which adjoins the Facility, and which is a
tributary of Pristine River, a navigable water. According to
records at the Facility, materials contained in the drums
include:
(describe hazardous substances)
B. An area in the Facility (the "Landfill area") of approximately
four (4) acres in size, without vegetation, from which
leachate was observed flowing approximately forty (40) yards
into Crystal Creek. vegetation had been killed in the area of
the leachate.
According to records at the Facility, the following hazardous
substances had been placed in the Landfill area:
(List hazardous substances-then continue with the
following)
At the time of the inspection, ________ samples of the drummed
waste, samples of the leachate from the Landfill area, and ________
samples of (soil, surface water, groundwater, air, etc.) were obtained
by the inspector(s).
4. An analysis of the samples taken at the time of the inspection
disclosed the presence at the Facility of the following substance in theconcentrations set forth:
(list hazardous substances and concentrations
confirmed by analysis - then continue with following
sentence)
These substances are "hazardous substances" as defined in Section
101(14) of CERCLA, and are subject to the terms and provisions of that
Act.
5. The hazardous substances described above are treated or disposed of
at the Facility in such manner that they (are being) (threaten to be)
released and discharged from the Facility into the (soil, groundwater,
surface water, air, etc.) and other parts of the environment.
6. (Describe population or environment at risk and route of exposure).
Exposure to said hazardous substances may cause illness, disease, death
or other harmful effects to plant and animal life and humans.
7. The (release) (and/or) (threat of release) of said hazardous
substances may present and imminent and substantial endangerment to
public health and welfare and the environment.
8. In order to protect human health and welfare and the environment,
it is necessary that action be taken to contain and terminate the
(release) (and/or) (threat of release) of hazardous substances from the
Facility into the environment.
ORDER
Based upon the foregoing determination and Findings of Fact, it is
hereby ordered and Directed that:
(Note - the Respondent may be ordered to undertake any response
activity that may be required to protect public health, welfare and
the environment, including, but not limited to those actions which
the government is authorized to carry out under CERCLA.)
(Insert here the response actions which EPA directs the Respondent
to take at the site. Each activity, (i.e., redrumming of waste,
construction of fencing, levees, submission of plans for
installation of monitoring wells, etc.), and the date for
compliance with each activity, should be listed separately.)
(Insert a statement to the effect that other orders or action may
follow.)
EFFECTIVE DATE - OPPORTUNITY TO CONFER
This Order is effective on the twentieth calendar day following
receipt thereof by Respondent, and all times for performance of response
activities shall be calculated from that date. (Note: For immediate
removal situations, the effective date will be considerably
abbreviated.)
You may, within ten calendar days after receipt of this order,
request in writing a conference with (Official) to discuss this Order
and its applicability to you. (Note: For immediate removal situations,
the time for requesting a hearing will be abbreviated. In addition, the
Respondent should be informed that he or she may make an oral request
for a conference, to be followed up by written notice within two or
three days.)
At any conference held pursuant to your request, you may appear in
person and by attorney or other representatives for the purpose of
presenting any objections, defenses or contentions which you may have
regarding this Order-. If you desire such a conference, please contact
(name, title, address and telephone number of EPA contact) within the
time set forth above for requesting a conference.
PENALTIES FOR NON-COMPLIANCE
Respondent is advised that willful violation or failure or refusal
to comply with this Order, or any portion thereof, may subject you under
Section 106(b) of CERCLA, (42 U.S.C. Section 9606(B)), to a civil
penalty of not more than $5000 for each dy in which such violation
occurs or such failure to comply continues. Failure to comply with this
Order, or any portion thereof, without sufficient cause, may subject you
under Section 107(c)(3) of CERCLA (42 U.S.C. Section 9607(c)(3)), to
liability for punitive damages in an amount up to three times the amount
of any costs incurred by the government as a result of your failure to
take proper action.
WITNESS my hand in the City of ___________ State of ___________, as
(title of authorized EPA issuing official, on this ____ day of ________,
19__.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
By: __________________________________________