Use of CERCLA 106 to Address Endangerments That May Also be Addressed Under Other Environmental Statutes

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2 2 emorandum will provide a brief background regarding EPA’s use of ISE First, this m authorities to address endangerments. Second, the m emorandum will provide an analytical edia ISE framework for determining whether it is appropriate to use CERCLA § 106 in a cross-m situation. Third, the m isconceptions som etimes associated emorandum will discuss certain m ay in som e with the use of CERCLA § 106. Fourth, because cross-m edia situations m ore ISE authorities, the m emorandum circumstances call for the com bined strengths of two or m will highlight som e implementation issues that m ust be confronted when using Section 106 in conjunction with another ISE authority. Finally, the m emorandum will describe the procedure st the Regions to address com EPA headquarters and DOJ have developed to assi plex ISE issues expeditiously, and will request that each Region establish its own internal procedure for doing so. I. BACKGROUND EPA is com mitted to promoting the ef fective use of its ISE authorities to address endangerments to human health and the environment. In August 1997, the Office of Regulatory orcement (“ORE”) established a m ulti-of fi ce team to assist Regions in m aking the m Enf ost effective use of ISE authorities. Because the Agency has historically had a m edia-based organizational structure, each m edia enforcement program has tended to look only to the statute with which it is m ost f am iliar when determining whether a situation presents an ISE and if it does, what rem edies m ay be sought. In order to ensure the m ost effective use of our ISE authorities, we are promoting an analytical approach that transcends m edia boundaries. mon sense To this end, we strongly believe that EPA and DOJ should follow a com ost effective authority to address a particular endangerment. approach to determining the m When determining how best to tackle a specific ISE, we should analyze the strengths and weaknesses of each potentially applicable ISE authority. In som e cases, a single authority m ay ost appropriate tool to effectively address an ISE. In other situations, a com bination of be the m ore authorities m ay be appropriate. The analysis of the appropriate authority or two or m authorities m ust be undertaken on a case-by-case basis and will, of course, be intensely fact- 1 For example, if waste in water is presenting an ISE, EPA m ay choose to issue an order specific. under Section 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 (RCRA § 7003) under certain circumstances such as insufficient time to com me nce a civil action or seek a judicial order as required by Section 504 of the Clean W ater Act, 33 U.S.C. § 1365 (CW A § edia approach to addressing ISE will require close 504). In order to be effective, this cross-m intra-Region coordination, particularly in Regions ulti-m edia basis. that are not organized on a m Non-Superfund attorneys or program personnel who wish to rely on CERCLA § 106 to address an ISE should obtain the approval of the Regional official to whom Section 106 authority has been delegated. 1 emorandum is not intended to provide an overview of all ISE authorities. This m For a quick com parison of ISE authorities, see Chart entitled “Comparison of RCRA § 7003 to Other Enforcement and Response Authorities,” Attachm ent 2 of “Guidance on the Use of Section 7003 of RCRA,” S. Herman, Oct. 20, 1997, at Appendix A.

3 3 edia ISE approach, it has becom In encouraging this cross-m e evident that, because of its unique strengths and broad applicability, CERCLA § 106 is frequently looked to as an alternative or additional ISE authority. This has raised the need for guidance on what factors to weigh when considering the use of Section 106 outside the context of cleaning up abandoned hazardous waste sites. It is imperative that we build experience and good precedent under other, less-used ISE authorities. Thus, f or example, where an ISE situation presents primarily air release issues and it appears that the CAA’s primary regulatory or ISE authorities are capable of addressing the ISE, the CAA authorities should generally be used. Section 106 should not be used as a “default” ISE authority in cross-m edia situations. At the sam e time, however, EPA and DOJ recognize Section 106's unique strengths and encourage its use where appropriate, whether as a stand-alone authority or in conjunction with another ISE authority. An analytical framework for considering the use of Section 106 edia situations is provided below. in cross-m II. ANALYTICAL FRAMEWORK FOR USE OF CERCLA § 106 IN CROSS-MEDIA SITUATIONS The analysis of whether to use CERCLA § 106 in a cross-m edia situation consists of must determine whether there is evidence to support each of three steps. First, a case team CERCLA § 106's statutorily required elements. If not, then Section 106 should not be invoked. Second, if each required element of CERCLA § 106 is m et, then the case team should consider Section 106's unique strengths and determine whether these strengths m ake it the appropriate authority, or one of the appropriate authorities, to use in a cross-m edia situation. Third, the case team must weigh whether there are special considerations peculiar to Section 106 that m ay m ake it inappropriate for use in lieu of or in conjunction with another ISE authority in a cross-m edia situation. Much of this analysis is also applicable to traditional CERCLA § 106 situations 2 Each step of this analysis is discussed further below. involving site cleanup. A. Step 1: CERCLA § 106's Required Elements ay request j Section 106(a) provides that EPA m ay udicial action when it finds that there m be an ISE to the public health or welfare or the environment because of an actual or threatened 3 Although Section 106(a) does not explicitly release of a hazardous substance from a facility. 2 For guidance on the use of Section 106 in traditional cases, see , e.g. , “Guidance on CERCLA Section 106(a) Unilateral Adm rative Orders for Rem edial Designs and inist Rem edial Actions,” Don R. Clay, March 7, 1990, OSW ER Directive No. 9833.0-1a; “Guidance on CERCLA Section 106 Judicial Actions,” Edward E. Reich and J. W inston Porter, February 24, 1989, OSW ER Directive No. 9835.7; “Issuance of Adm inistrative Orders for Im me diate Removal Actions,” Lee M. Thomas, February 21, 1984, OSW ER Directive No. 9833.1. 3 CERCLA § 106(a) provides:

4 4 e requirem ents for adm e impose the sam inistrative orders, EPA generally meets the sam ents for such orders. Therefore, in order to invoke Section 106, the Agency should have requirem evidence of each of the following elements: (1) a possible im nent and substantial mi endangerment; (2) because of an actual or threatened release; (3) of a hazardous substance; (4) from a facility. Furthermore, the Agency m ust determine that it is seeking action under Section 106 from an appropriate person. Finally, before a Section 106 order (“unilateral adm inistrative order” or “UAO”) m ay be issued, the affected state m ust be notified. Each of these required elements is discussed further below. Possible Im (i) nent and Substantial Endangerment mi In order to invoke Section 106, EPA should determine that conditions m ay present an ISE to public health or welfare or the environment. Generally, the Agency should rely on scientific evidence and documentation in order to demonstrate the existence of conditions that m ay present an ISE and should carefully tailor the relief requested to address the ISE. The Agency, however, has great latitude to determine when there m ay be an ISE. Courts have held that an ay be a threatened or potential harm . A “endangerment” is not necessarily an actual harm, but m ma y suffice, and the risk need not be quantified. B.F. Goodrich Co. v. Murtha, 697 risk of harm F. Supp. 89, 96 (D. Conn. 1988). Courts have also held that an endangerment m ay be “im mi nent” if factors giving rise to it are present, even though the harm ma y not be realized for years. United States v. Conservation Chemical , 619 F. Supp. 162, 193 (W.D. Mo. 1985). Courts eone have also interpreted “substantial” broadly, to mean a reasonable cause for concern that som ay be exposed to a risk of harm by a release or a threatened release of a ething m or som at 194. Finally, at least one court has also interpreted “public health or hazardous substance. Id. ude health, safety, recreational, aesthetic, welfare or the environment” broadly, to incl 4 at 192. environmental and economic interests. Id. In addition to any other action taken by a State or local governm ent, when the President determines that there m ay be an im mi nent 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 m ay require the Attorney General of the United States to secure such relief as m ay be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case m ay require. The President m ay also, after notice to the affected State, take other action under this Section including, but not limited to, issuing such orders as m ay be necessary to protect public health and welfare and the environment. 4 For cases where courts have found ISE under CERCLA and other authorities, see, e.g., United States v. Hardage , 761 F. Supp. 1501 (W.D. Okla. 1990) (finding that hazardous substances in groundwater traveling toward an aquifer posed an ISE); B.F. Goodrich Co. v. Murtha , 697 F. Supp. 89 (D. Conn. 1988) (concluding that hazardous substances which posed a risk of m igrating from a landfill through groundwater to nearby residential wells and brook

5 5 an actual or threatened release (ii) CERCLA § 101(22) defines “release” as any spilling, leaking, pumping, pouring, ng, leaching, dumping, or disposing into the emitting, emptying, discharging, injecting, escapi environment. A release is usually observable in som nner, whether visually or through e ma analysis showing the presence of hazardous substances in sam ples of soil, water, or air. Section 106 explicitly states that, in addition to actual releases, a ay pose an ISE threat of a release m ay present a threat of a (e.g., a surface impoundment about to overflow because of rain m release). Although the definition of “release” under CERCLA is very broad, certain activities are excluded. For example, Section 101(22) excludes from the definition “any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons y assert against the employer of such persons . . .; emissions from the engine exhaust of a ma pipeline pumping station engine. . . ; release of a motor vehicle, rolling stock, aircraft, vessel, or source, byproduct, or special nuclear m aterial from a nuclear incident . . .” and the norm al fe application of rtilizer. (iii) hazardous substance CERCLA § 101(14) generally defines “hazardous substance” by referring to substances, 5 Although this definition is very wastes or pollutants designated in other environmental statutes. qualified as an ISE); Dague v. City of Burlington , 935 F.2d 1343 (2d Cir. 1991) (finding that leachate from city landfill presented an ISE to the soil, groundwater, and surface waters under RCRA and CWA), , 502 U.S. 1071 (1992) , and rev’d in part on other cert. granted in part 505 U.S. 557 (1992); grounds, United States v. Northeastern Pharmaceutical and Chemical Co. (“NEPACCO I”) , 579 F. Supp. 823 (W.D. Mo. 1984) (finding that small quantities of highly toxic hazardous substances that were reasonably likely to enter groundwater and contaminate aff’d in part, rev’d in part on other grounds drinking water supply posed an ISE), , 810 F.2d 726 (8th Cir. 1986), cert. denied , 484 U.S. 848 (1987); United States v. Valentine , 856 F. Supp. 621 (D. Wyo. 1993) (concluding that site of oil reclaim ing facility posed an ISE under RCRA due to substantial risk of death and injury to wildlife); , 489 F. Supp. 870, 885 United States v. Vertac (E.D. Ark. 1980) (finding an ISE under RCRA and CWA based upon “acceptable but unproved theory” that dioxin, which was escaping from herbicide m anufacturer’s plant into navigable waters, created a “reasonable m edical concern over the public health”). For additional cases discussing ISE, see also “Guidance on the Use of Section 7003 of RCRA,” S. Herman, October 1997. 5 CERCLA § 101(14) provides: The term “hazardous substance” means (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, m ixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001

6 6 e notable exceptions. For example, petroleum , including crude oil or any broad, there are som fraction thereof which is not otherwise specifically listed or designated, is not a hazardous substance. Also excluded from the definition of hazardous substance are natural gas and synthetic gas useable for fuel. facility (iv) CERCLA § 101(9) defines facility as “ any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatm ent works), well, pit, otor vehicle, rolling stock, or pond, lagoon, impoundment, ditch, landfill, storage container, m aircraft, or . . . any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise com e to be located; but does not include any consumer product in consumer use or any vessel.” When read in conjunction with CERCLA § 101(17) and (18), this def f- shore sites, including land transportation f acilities, f rom inition includes any on-shore or of ay originate. which releases or threats of releases m (v) appropriate order recipient Section 106 does not specify the persons from whom EPA m ay seek abatement action. EPA typically seeks judicial action against or issues orders under Section 106 to persons liable under Section 107(a): current owners and operators, owners and operators at the time of disposal, arrangers for disposal or treatm ent, and transporters. However, in appropriate cases, EPA m ay seek Section 106 action from persons other than those specified in Section 107(a), if actions by such persons are necessary to protect the public health, welfare, or the environment. For example, EPA has successfully issued a Sec tion 106 order to the owner of land adjoining a 6 Where EPA plans to take action under Section site when it was necessary to obtain site access. of the Solid W aste Disposal Act [42 U.S.C. § 6921] (but not including any waste aste Disposal Act [42 U.S.C.A. § 6901 the regulation of which under the Solid W et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C.A. § 7412], and (F) any im mi nently hazardous chemical substance or m ixture with respect to which the Adm inistrator has taken action pursuant to section 2606 of Title 15. The term does not include , including crude oil or any fraction thereof which is not otherwise petroleum specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mi xtures of natural gas and such synthetic gas). See also 40 C.F.R. §§ 300.5, 302.4. 6 EPA usually uses Section 104(e)’s access authority to obtain site access, but has also successfully invoked Section 106 for this purpose. See B.F. Goodrich Co. v. Murtha , 697 F.

7 7 106 against persons who are not otherwise liable under Section 107(a), the Regions should ay not be necessary in emergent generally consult with DOJ. Such DOJ consultation m situations, however, where there is insufficient time to consult (e.g., time-critical removal actions). The concurrence of the Attorney General is required before a Section 106 order m ay be issued to an Executive departm ent or agency. Exec. Order No. 12,580, 52 Fed. Reg. 2,923 (1987). (vi) notice to the affected state ust notify the affected state before issuing an order. CERCLA § 106(a). Finally, EPA m The Agency has interpreted “af fected state” to be the state where the f acility is located and in which the action ordered will be conducted. The required notice, which can be either in writing or oral, is usually given to the director of the state’s pollution control agency. B. Step 2: CERCLA § 106's Strengths Assum ing that there is evidence to support each of CERCLA § 106's required elements, a Regional case team should consider Section 106's unique strengths in order to determine whether the use of Section 106 authority would increase the United States’ ability to obtain com pliance may be” with, or to enforce, the order. For example, Section 106 requires a showing that there “ 7 It should be mi nent and substantial endangerment. CERCLA § 106(a) (emphasis added). an im noted that other authorities, such as CWA § 504 and CAA § 303, require a showing that a source 8 bination of sources “ is presenting” an ISE. or com Supp. 89, 94 (D. Conn. 1988) (upholding use of Section 106 order to obtain site access, stating that Section 106 “is broadly worded to authorize all relief ‘necessary to abate [the] danger or threat.’”) 7 may be an RCRA § 7003 and CWA § 311(c) also require a showing that there im mi nent and substantial endangerment. 8 The “may present” language in CERCLA m akes it a particularly effective ISE authority. However, it is the Agency’s position that Congress did not intend to create less protection for the public or the environment by employing “is presenting” language in other ISE authorities. See Guidance on Section 303 of the Clean Air Act , E. Schaeffer, April 1, 1999, at 8. Case law and legislative history support the Agency’s position. For example, the House Report on the CAA Amendments of 1977 provides: “In retaining the word ‘im nent and substantial mi endangerment. . . ,’ the com mittee intends that the authority of this section not be used where the risk of harm is com pletely speculative in nature or where the harm threatened is insubstantial. However, . . . the com mittee intends that this language be construed by the courts and the Adm inistrator so as to give paramount importance to the objective of protection of the public health. Adm inistrative and judicial implementation of this authority m ust occur early enough to prevent the potential hazard from ma terializing.” H.R. Rep. No. 95-294 (1977). Further, courts evaluating claim s under EPA’s various ISE authorities generally view the judicial precedent

8 8 ay apply to a broader range of parties than other ISE authorities. For CERCLA § 106 m example, Section 106 could be used to require the current owner of a facility to take action at a ay have difficulty otherwise taking action under site to address an ISE, if the United States m RCRA § 7003. Unlike CERCLA, which defines current owners as per se liable parties pursuant to Section 107(a)(1), the authority of RCRA § 7003 is contingent on whether a person “has contributed to or is contributing to” the handling, storage, treatm ent, transportation or disposal 9 leading to the endangerment. Section 106's reach is also very broad in terms of the endangerments it m ay address: 10 Som e other ISE authorities endangerments to human health or welfare or the environment. y be m ore limited in this regard. For example, Section 1431 of the Safe Drinking W ater Act, ma ay only be used to address endangerments to the health of 42 U.S.C. § 300i (SDWA § 1431), m round source of drinking water. Similarly, CW persons or when necessary to protect an underg A § 311(c) and (e) and CWA § 504 ma y be used to address endangerments to public health or welfare, but do not explicitly address endangerments to the environment. In addition, CERCLA § 106 does not limit the duration of adm inistrative orders, unlike under these laws as equally applicable in any given case. United States v. Price , 688 See, e.g., F.2d 204, 211 (noting the similarity in Congressional intent underlying RCRA § 7003 and SDW A § 1431); United States v. Hooker Chems & Plastics Corp. , 749 F.2d 968, 981-82 (2d Cir. 1984) (holding that “[t]he similarity between the CWA and the later enacted SDW A and RCRA leads us to read all three acts in a similar m anner.”); , 579 F. Supp. at 846 (noting NEPACCO I similarity of CERCLA § 106(a) and RCRA § 7003). 9 e courts have found that current owners m ay have contributed to an ISE Som under RCRA because the waste was leaking while they owned the property, even though the See, e.g., Zands v. Nelson waste was originally deposited by a previous owner. , 779 F. Supp. 1254, 1264 (S.D. Cal. 1991) (denying defendants’ sum ma ry judgment m otion in suit brought under RCRA § 7002(a)(1)(B), stating that defendants who owned the land while gasoline allegedly leaked ma y be contributors under the statute); United States v. Price , 523 F. Supp. 1055, 1073 (D.N.J. 1994) (denying current owner defendants’ sum ma otion and noting that defendants ry judgment m were contributing to the disposal of wastes “merely by virtue of their studied indifference to the rd hazardous condition that now exists.”), , 688 F.2d 204 (3 Cir. 1982); but see, e.g., First aff’d San Diego Properties v. Exxon Co. , 859 F. Supp. 1313, 1315-16 (S.D. Cal. 1994) (holding current owner of previously contaminated property that took no or inadequate steps to mitigate/rem ediate the harm, but also did not af fi rmatively add wastes to the site, was not liable under RCRA § 7002(a)(1)(B)). 10 Similarly, CAA § 303 explicitly reaches endangerments to “public health or welfare or the environment.”

9 9 11 orders issued under CAA § 303. Further, CERCLA can provide m ore enforcement options in the event of noncompliance parison to som in com e other ISE authorities. All ISE authorities enable EPA to seek judicial pliance and exact penalties if order recipients do not com pel com orcement to com enf ply with an order. Under CERCLA, however, if the respondent fails without sufficient cause to com ply with the order, EPA m ay conduct the response action and then seek to recover its response 12 13 and punitive dam ages up to three times the amount of its response costs, and m ay also costs, 14 The signif icant penalties seek civil penalties up to $27,500 per day for a violation of the order. for failure to com ake Section 106 a particularly effective ply with a CERCLA order m pared to the penalties for noncompliance available under enforcement tool, especially when com 15 other ISE statutes. CERCLA generally precludes judicial review of a Section 106 adm inistrative order at the 11 CAA § 303 orders are limited in duration to 60 days. If relief is required for m ore ust bring suit in district court, either as an initial action, or than 60 days, the United States m inistrative order. following the issuance of an adm 12 The availability of Fund money is not autom atically assured, however, in the event of noncompliance, discussion infra at 14-15. see 13 Pursuant to CERCLA § 107(c)(3), the agency m ay assess punitive dam ages of up to three times the amount of cleanup costs as a result of noncompliance. See, e.g., United States , 723 F. Supp. 757, 763 (N.D. Ga. 1989), vacated on other grounds v. Parsons , 936 F.2d 526 ages are assessed in addition to the response costs for (11th Cir. 1991) (holding that treble dam which a potentially responsible party (“PRP”) is liable; therefore, a court m ay award the governm ent four times its response costs) . 14 ay fine order recipients who willfully Pursuant to CERCLA § 106(b), EPA m violate or fail or refuse to com ply with a UAO $27,500 for each day of noncompliance. Section 106 provides for penalties of $25,000 per day, however, this amount was adjusted to $27,500 per day for noncompliance that occurs subsequent to January 30, 1997, pursuant to EPA’s Civil Monetary Penalty Inflation Adjustm ent Rule (“Inflation Adjustm ent Rule”), 40 C.F.R. § 19.4, (im plem enting the Debt Collection Improvem ent Act of 1996). See Federal Civil Penalties Inflation Adjustm ent Act of 1990, 28 U.S.C. § 2461, as amended by 31 U.S.C. § 3701. 15 For example, RCRA § 7003(b) provides that any person who willfully violates or fails or refuses to com ply with a RCRA § 7003(a) order m ay be fined not m ore than $5,500 (as adjusted by the Inflation Adjustm ent Rule) for each day in which such violation occurs or the failure to com ply continues. SDW A § 1431(b) pr ovides that any person who violates or fails to com ply with a SDW A § 1431(a) order m ay be subject to a civil penalty of not m ore than $15,000 for each day in which the violation occurs or failure to com ply continues. Further, neither of these authorities provides for punitive dam ages.

10 10 time it is issued. A court m ay review Section 106 orders only in specific, limited 16 circumstances. This explicit bar to pre-enforcement review is another asset that m akes Section 17 ore advantageous than som e of the other ISE authorities. 106 m 18 When the validity of a Section 106 order is properly before a court, Section 113(j)(1) 16 CERCLA § 113(h) provides that Section 106 UAOs m ay be challenged only during: a cost recovery or contribution action under Section 107; 1. an action by EPA to enforce the UAO and/or to recover penalties for 2. noncompliance; 3. an action by an order recipient for reimbursem ent under § 106(b)(2)(B); a citizen suit action alleging that a rem edial or removal action taken under 4. section 104 or secured under section 106 was in violation of CERCLA; 5. an action by EPA under section 106 to com pel rem edial action. 17 Although RCRA § 7003 does not explicitly address pre-enforcement review, courts have held that Section 7003 orders are also generally not subject to pre-enforcement review. See, e.g., Mohave County v. United States Environmental Protection Agency , Case No. holding that there is no pre-enforcement 99-CIV-1329-PCT-RGS (D. Ariz., Sept. 26, 2000) ( Ross Incineration Services, Inc. v. Browner , 118 F. Supp.2d review of RCRA § 7003 orders); 837 (N.D. Ohio, 2000) (same holding); see also United States v. Valentine , 856 F. Supp. 621 (D. Wyo., 1994) (rejecting defendant’s argument that it was denied due process because it was not United provided with the opportunity for a hearing prior to the issuance of a Section 7003 order); States v. Mobil Oil Corp. , Civ. No. 96-CV-1432, 1997 W L 1048911 (E.D.N.Y. Sept. 11, 1997) (focusing on pre-enforcement review of Sec tion 3013 orders and concluding that Congress intended RCRA to preclude pre-enforcement judicial review. “The statutory approach to the problem of hazardous waste is inconsistent with the delay that would accom pany pre- enforcement review Lone Pine Steering Committee v. EPA , 777 F.2d 882, 886-87 . . . .” (quoting (3d Cir. 1985)). In addition, the legislative history of CAA § 303 indicates that Section 303 orders are not subject to pre-enforcement review: “Several courts have specifically considered whether Section 307(b)(1) provides pre-enforcement review of adm inistrative orders. As noted in Sen. Rpt. 101-228, at 367, the Second, Third, and Eighth Circuits have already resolved this issued [sic] and, as such, except with respect to judicial review of adm inistrative penalty assessments and orders, there is no opportunity for preenforcement review and no new statutory language addressing the issue is necessary.” 136 Cong. Rec. S16953 (daily ed. Oct. 27, 1990). 18 CERCLA § 113(j)(1) provides: In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be

11 11 provides that judicial review of any issues concerning the adequacy of any response action is 19 limited to the adm ust uphold inistrative record. CERCLA § 113(j)(2) provides that the court m the Agency’s decision in selecting a response action unless the objecting party can demonstrate, inistrative record, that the decision was arbitrary and capricious or otherwise not in on the adm accordance with law. This explicit standard of ost deferential to Agency judicial review, the m 20 action, is another reason Section 106 is such a powerful ISE authority. C. Step 3: Unique CERCLA § 106 Considerations ing that there is evidence to support each of Section 106's statutorily required Assum elements and that the analysis of Section 106's strengths leads the Region to believe it would be an effective ISE authority to use in a cross-m ust next analyze edia situation, the Region m ay m whether there are special considerations peculiar to Section 106 that m ake it inappropriate for use in lieu of or in conjunction with another ISE authority in a cross-m edia situation. In ust consider the vulnerability of the Fund, the applicability of the NCP particular, the Region m and the risk of generating unfavorable precedent for the United States under Section 106. Risk to the Fund (i) Significantly, Section 106 is the only ISE authority that allows parties to seek reimbursem ent of their costs of com plying with an order. CERCLA § 106(b) allows parties that have com plied with a Section 106 order to petition for reimbursem ent of reasonable costs of limited to the adm inistrative record. Otherwise applicable principles of inistrative law shall govern whether any supplemental m ay be adm aterials m considered by the court. 19 CERCLA § 113(j)(2) provides: In considering objections raised in any judicial action under this chapter, the court shall uphold the President’s decision in selecting the response action unless the objecting party can demonstrate, on the adm inistrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law. 20 EPA and DOJ m aintain that the Adm inistrative Procedure Act, 5 U.S.C. § 500 et seq. andates record review under other environmental statutes, e.g., RCRA, which, unlike , m CERCLA, are silent on this issue. Section 706 of the APA provides for review of Agency actions, including Agency orders, and generally limits review of Agency action to review of the adm inistrative record com piled by the Agency. See Camp v. Pitts , 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 414-417 (1971). See also United States v. Seafab Metal Corp., 18 Envtl. L. Rep. 21024 (W.D. W ash. 1988).

12 12 21 plying with an order from the Fund. com The vulnerability of the Fund is a factor unique to ust be analyzed carefully when considering the use of Section 106 in a cross- CERCLA that m me dia situation. The case team considering using Section 106 m ust assess the likelihood that an order recipient will file and prevail on a Section 106(b) petition for reimbursem ent before deciding to use Section 106. ust either establish by a In order to prevail on a Section 106(b) petition, the petitioner m preponderance of the evidence that it is not a CERCLA § 107 liable party, or demonstrate, on the adm inistrative record, that the selected response action was arbitrary and capricious, or was 22 otherwise not in accordance with law. CERCLA § 106(b)(2)(C), (D). Because there is limited experience, guidance, and case law on Section 106 orders not dealing with site cleanup, it m ay be particularly difficult to assess the risk to the Fund posed by such orders. If there is a risk that the response action could ultimately be found to be arbitrary and capricious or otherwise not in accordance with law, or if the PRP can establish that it is not a liable party, then the risks to the Fund m ay outweigh the other benefits that Section 106 m ay bring to the United States’ case. This risk/benefit analysis m ust be undertaken on a case-by-case 21 CERCLA § 106(b) provides in relevant part: plies with the terms of any order issued under Any person who receives and com ay, within 60 days after com pletion of the required subsection (a) of this section m ent from the Fund for the reasonable action, petition the President for reimbursem costs of such action, plus interest. 22 CERCLA § 106(b)(2)(C) provides: Except as provided in subparagraph (D), to obtain reimbursem ent, the petitioner shall establish by a preponderance of the evidence that it is not liable for response costs under section 9607(a) of this title and that costs for which it seeks reimbursem ent are reasonable in light of the action required by the relevant order. CERCLA § 106(b)(2)(D) provides: A petitioner who is liable for response costs under section 9607(a) of this title ma y also recover its reasonable costs of response to the extent that it can demonstrate, on the adm inistrative record, that the President’s decision in selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with law. Reimbursem ent awarded under this subparagraph shall include all reasonable response costs incurred by the petitioner pursuant to the portions of the order found to be arbitrary and capricious or otherwise not in accordance with law.

13 13 23 basis. (ii) The NCP ust consider edia situation, the Region m Before deciding to use Section 106 in a cross-m the applicability of the National Contingency Plan (“NCP”), 40 C.F.R. § 300 The NCP et seq. provides a blueprint for how to select and carry out response actions. Com pliance with the NCP ent to using Section 106; rather, it is a requirem ent that m ust be is not necessarily an impedim edia situation, factored into the analysis of whether and how to use Section 106 in a cross-m whether as a stand alone or additional ISE authority. The NCP provides m ethods for evaluating and responding to releases or threats of releases from facilities which pose substantial danger to the public health or the environment. 24 CERCLA § 105(a). By its terms, the NCP applies to “response actions.” 40 C.F.R. § 300.2. The NCP also states that it applies to releases of hazardous substances into the environment ay present an im mi nent and substantial danger to the public health or welfare.” 40 “which m C.F.R. § 300.3(a)(2). (iii) Precedent Although this consideration is not unique to CERCLA § 106, a case team should assess the likelihood that the use of Section 106 in the cross-m edia situation at hand could generate unfavorable precedent for the United States. Given the generally favorable case law to date upholding the Agency’s broad authority under CERCLA § 106, Regions should be sensitive to aintaining Section 106 as a credible enforcement threat to parties causing the importance of m endangerments. d be m indful of the Agency’s desire to Finally, as stated previously, Regions shoul 23 Regions m ust obtain Office of Site Rem ediation Enforcement concurrence on substantive pleadings pertaining to Section 106(b) petitions before the Environmental Appeals Board. “Revised Procedures to Strengthen Enforcement Program’s Advocacy in Environmental Appeals Board Matters,” S. Herman, Aug. 7, 2000, at 10. In addition, OGC has a formal concurrence role on all EAB m Id. at 2. atters involving CERCLA § 106(b) petitions. 24 CERCLA § 101(25) defines “response action” as follows: The terms “respond” or “response” means remove, removal, rem edy, rem edial action; all such terms (including the terms “removal” and “remedial action”) include enf orcement activities related thereto. 40 C.F.R. § 300.5 refers to the definition in CERCLA § 101(25). The term s “remove,” “removal,” “remedy,” and “remedial action” are further defined in CERCLA §§ 101(23) and 101(24).

14 14 horities. Therefore, as stated above, where an develop experience under other, less-used ISE aut ISE situation presents, for example, primarily air release issues and it appears that the CAA’s regulatory or ISE authorities are capable of addressing the ISE, the CAA authorities should edia situations, generally be used. CERCLA § 106 should not necessarily be used in all cross-m but only in those cases where there are limitations to the use of another ISE authority as applied to a particular set of facts, or where the an alysis of Section 106's unique strengths and special considerations leads to the conclusion that it will be either useful or necessary to achieve EPA’s goals in a particular case. POTENTIAL MISCONCEPTIONS ASSOCIATED W ITH USE OF CERCLA § 106 III. isconceptions som This section addresses certain m etimes associated with the use of CERCLA § 106. First, it should not be assum plaint ed that citing Section 106 in an order or com ensures access to Fund money in the event of noncompliance. Second, using Section 106 in conjunction with another ISE authority does not mean that Superfund resources or personnel will isconceptions are explored be necessary or available to address the ISE. These potential m further below. A. Access to Fund Money The existence of the Fund and EPA’s ability to use Fund money to conduct site cleanups ma kes CERCLA a particularly potent tool. As prev iously indicated, if an order recipient fails or refuses to com ply with an order, EPA m ay choose to conduct the ordered actions using Fund money, and to subsequently file an action against the recalcitrant parties to recoup its response costs and up to three times that amount in dam s ability under CERCLA to act ages. The Agency' expeditiously to address an ISE in the event of noncompliance with an order greatly contributes to the effectiveness of Section 106 as an ISE authority. The Fund, however, is a limited resource ust be used judiciously. which m In an effort to prioritize the use of this limited resource, Regions are required to submit certain requests for Fund money to the National Prioritization Panel (‘the Panel”). The Panel 25 It also reviews requests for new reviews requests for new Fund-lead rem edial action starts. Fund-lead removal starts that the Region cannot address with its existing budget for removals. The panel assigns a score, based primarily on the risk posed by the particular site, to each request. The Office of Emergency and Rem edial Response (“OERR”) and the Office of Site Rem ediation Enforcement (“OSRE”) take the Panel’s scores into consideration in deciding how to allocate Fund monies. These headquarters offices also consider the potential loss of 25 The panel also reviews requests f or: (1) m ixed work settlem ents, pursuant to which EPA perform s part of the response action using Fund money, and PRPs perform the rest of the response action; and (2) pre-authorized m ixed funding settlem ents, pursuant to which PRPs conduct the response action and EPA agrees to allow the PRPs to bring a claim against the Fund for a portion of their costs.

15 15 ight result from a failure to provide Fund monies for an EPA-lead cleanup in deterrence that m the face of recalcitrant PRPs. The purpose of the Panel is to ensure that sites posing the greatest risks receive priority any m ore sites posing endangerments than there is for Fund money, recognizing that there are m Fund money to address these sites. Even if a site presents an ISE under CERCLA, it m ay not be a priority for the use of Fund money when com pared to other sites com peting for Fund money. This does not mean that there is a higher ISE standard under CERCLA than under other ISE ay mean that a particular site, when com pared to other sites posing authorities. Rather, it m ore im greater or m diate danger, does not warrant the use of limited Fund money. Thus, when me ply with an there is a significant likelihood that an order recipient will refuse or be unable to com order (e.g., because of a history of recalcitrance or lack of adequate financial resources), and the case team anticipates that a Fund-financed action will ultimately be necessary, the team should consult early with Regional Superfund program personnel and, as necessary, OERR and OSRE personnel, regarding the procedures for requesting funding and the likelihood of obtaining it. The Region should carefully consider the consequences of possibly not having Fund money available to address an ISE after citing Section 106 and later discovering that the order recipient is unable to perform the required action. As noted above, one of the qualities that ma kes Section 106 a particularly effective enforcement tool is that if an order recipient does not com ply, the Agency m ay undertake the action itself and then sue the order recipient to recover the costs of its response, penalties, and punitive dam ages. It is important to preserve Agency action in the face of noncompliance as a credible threat. Of course, EPA could always seek judicial enforcement of the order under Section 106 as well. Access to Other Superfund Resources B. Regions should also be aware that exercising the authority of Section 106 in conjunction with another ISE authority does not mean that other Superfund resources or personnel (e.g., edial project m attorneys, on-scene coordinators, rem anagers, investigators) will be necessary or available to address the ISE. In the event that the action required by the joint authority order is one that could be required by the non-Superfund authority alone, it m ay be m ost appropriate and cost effective for the other m edia office to finance and staff the Agency’s role in overseeing the order recipient’s implementation of the required actions. In the event that the action ordered or taken (or part thereof) is one that can only be required or taken pursuant to CERCLA, then it y becom e necessary for Superfund staff to becom e involved or take the lead, or for applicable ma delegations currently delegating to Superfund personnel the President’s authority to oversee and/or conduct response actions to be modified to allow delegation to personnel in the other me dia program . Where any staff, Superf und or non-Superfund, are involved in issuing or enforcing a Section 106 order, and when S uperfund resources are involved, Regions should ensure that appropriate Superfund accounts are charged. Similarly, DOJ expenses should be charged appropriately between Superfund and other m edia accounts.

16 16 IV. USE OF SECTION 106 W ITH OTHER ISE AUTHORITIES: IMPLEMENTATION CONSIDERATIONS If, after conducting the three-step analysis outlined above, a Region determines that CERCLA § 106 should be used in conjunction with another ISE authority to address an endangerment in a cross-m edia situation, the Region will need to address a number of implementation issues. This section highlights som e of these issues. A. NCP Applicability As discussed above, Regions m ust consider the applicability of the NCP when using edia situation. The applicability of both the particular provisions of the Section 106 in a cross-m NCP and the procedural, due process, and guidan ce requirem ents of the other ISE authority of a factors, such as the type of action being joint authority order will depend on a number of ordered. For example, if a Region wishes to issue a joint CERCLA § 106 and RCRA § 7003 order, the Region would be required to follow the NCP adm ents, even inistrative record requirem andated only under CERCLA. ents are though these procedures are m While no such requirem expressly stated under RCRA, the Region should still com pile an adm inistrative record when inistrative using RCRA § 7003 to facilitate review of the order on the record under the Adm 26 that an on scene coordinator (OSC) oversee Procedure Act. Similarly, the NCP requirem ent PRP actions at a site m ay not present an obstacle to using Section 106 with another ISE authority because OSCs m ay designate capable persons from federal, state or local agencies to act as their 27 Therefore, if it m ore sense for an engineer or environmental akes m on-scene representatives. scientist from the Regional water enforcement division to oversee actions at the site, for example, the OSC could designate that person to be his representative on site. B. Pre-Enforcement Review As discussed above, pursuant to CERCLA § 113(h), no challenge to a removal or ay occur prior to the com pletion of the cleanup, except in rem edial action or Section 106 order m th Cir. 1989); Schalk v. Reilly , limited circumstances. , 871 F.2d 1548, 1557 (11 Alabama v. EPA th Cir. 1990). Courts have held that Section 113(h) precludes any challenges to 900 F.3d 1091 (7 CERCLA removal or rem edial actions, not sim ply those brought under the provisions of 28 CERCLA itself. Courts have barred the pre-enforcement review of orders issued under other 26 40 C.F.R. § 300.120(a). 27 40 C.F.R. § 300.135(d). 28 th See, e.g., McClellan Ecological Seepage Situation v. Perry , 47 F.3d 325, 329 (9 Cir. 1995) (holding that “Section 113(h) withhol ds federal jurisdiction to review any of plaintiff’s claim ade in citi zen suits and under non-CERCLA statutes, that are s, including those m found to constitute ‘challenges’ to ongoing CERCLA cleanup actions.”); Arkansas Peace Center th Cir. 1993) (holding that v. Arkansas Dept. of Pollution Control and Ecology , 999 F.2d 1212 (8

17 17 29 Issuance of an order under the joint authority of Section 106 and other ISE authorities as well. cial review, which should be considered before statutes m ay raise novel questions regarding judi the order is issued. C. Penalties When Section 106 is used in conjunction with another ISE authority that calls for different penalty amounts in the event of noncompliance, it is the Agency’s position that the penalties accrue separately for violations of each statutory authority. EPA and DOJ m ay decide, bine these penalties (seeking the higher one, perhaps) f or purposes of however, to com settlem ent. Delegations D. Regions will also have to consider the issue of delegations in the event that they decide to use Section 106 in conjunction with another ISE authority (or authorities). The authority to take gated to different people under different ISE and/or order certain actions has been dele etimes m aking it necessary for m ultiple people to sign an order. This is authorities, som compounded by the fact that different delegations are in effect in different Regions. Thus, for ma y be responsible for signing Section 106 orders, example, in one Region the division director ay be responsible fo r signing RCRA § 7003 orders. Particularly where whereas a branch chief m there is a disagreement between these two offices regarding the wisdom of using both authorities, or the particulars of how to accom plish various goals under the order, the delegations issue m ay present an obstacle to taking action under m ore than one ISE authority. For this reason, such orders should generally be approved by consistent levels of m anagem ent for each me dium involved. The Regional ISE contact should shepherd the order through the concurrence edia process on an expedited basis and a high-ranking Regional official with authority over all m inistrator, or Regional programs (e.g., the Regional Counsel, Deputy Regional Adm Adm inistrator) should oversee the resolution of com plex delegations issues and ISE controversies at the Regional level. E. Deviation from Models and Policies We recognize that Regions m ust have som e flexibility to deviate from m odel settlem ent agreements, orders and policy documents if they are to com bine ISE authorities ef fe ctively. Frequently, a hybrid of the model agreements or orders applicable to the two or m ore authorities challenge to rem edial action, although brought under RCRA, was barred by Section 113(h)), th Cir. United States v. , 990 F.2d 1565, 1577 (10 , 511 U.S. 1017 (1994); cert. denied Colorado 1993) (“the plain language of [Section 113(h)] bars federal courts from exercising jurisdiction, not only under CERCLA, but under any federal law to review a challenge to a CERCLA rem edial action.”). 29 See Footnote 17, supra .

18 18 ay need to be developed. Regions should consult with the appropriate contact on being used m 30 regarding the Office of Enforcement and Com pliance Assurance (OECA) ISE workgroup orders that deviate significantly from Agency models or that break new ground in an important, 31 sensitive area. HEADQUARTERS PROCEDURES FOR ISSUE RESOLUTION V. EPA headquarters and DOJ are com mitted to assisting the Regions to use ISE authorities effectively and to resolve com plex ISE issues expeditiously. At EPA headquarters, the OECA anaged by the RCRA Enforcement Di vision will serve as a point of contact for ISE workgroup m ore authorities and to work the Regions to assist in the analysis of whether to use one or m plex implementation issues that m s through any com ay arise. In the Regions, Regional case team should first contact the Regional ISE contact for assistance. Then the Regional ISE contact m ay atter to the attention of the OECA ISE workgroup contact who will circulate the issue bring the m embers for resolution. Regional case teams m ay contact presented to the relevant workgroup m any m ember of the OECA ISE workgroup for assistance, and that workgroup m ember will ensure that the appropriate persons are involved in the analysis and resolution of any issues, and that any necessary headquarters consultation and concurrence requirem ents are fulfilled. The nam es embers are listed in Appendix B. and telephone numbers of OECA ISE workgroup m At DOJ, Regions should consult either the Senior Attorney assigned to the case or the Assistant Section Chief for that Region. Alternatively, Regions should contact Matthew Morrison (202-514-3932) or Anna Thode (202-514-1113). It is critical that each Region also establish a formal procedure for resolving ISE issues. As stated above, part of that procedure m nvolve the resolution of inconsistent delegations ay i that present obstacles to using ISE authorities jointly when such orders are appropriate. VI. USE AND PURPOSE OF THIS MEMORANDUM This m emorandum is intended exclusively as guidance for employees of EPA and DOJ. It is not a rule and does not create any legal rights or obligations. Whether and how EPA and DOJ apply the guidance set forth in this m emorandum in any particular case will depend on the facts. 30 See Appendix B for OECA ISE workgroup m embers. 31 The current models for CERCLA § 106 UAOs are: Model Unilateral Administrative Order for Removal Response Activities,” B. Diamond, Mar. 16, 1993, OSWER Dir. No. 9833.07; “ Model Unilateral Administrative Order for Remedial Design and Remedial Action Under Section 106 of CERCLA ,” B. Diamond, Mar. 30, 1990, OSWER Dir. No. 9833.0- 2(b).

19 19 Attachm ents

20 tes No r to RCRA Additional , e e y ke r ivil ivil r ion, y d or pons ent horit iv e order iv e order in g, th and r to ta pen uing an r act horization, reatment, r n to restrain ge, t ic heal inistrat inistrat e an h as iss ion ion, sus Response Aut Commence a c from handl actio stora transportation o publ necessary to protect disposal, o adm appropriate relief Commence a c suc action fo the environm Take othe other necessar to require correctiv Issu measure act revoke interim status aut adm or require othe act necessary res s or, or y ha er, past ner r is ) who d o s of several authorities that are simila nt generat the ow or of the erson nterprets to bute buting to an erator ese uding any spect ge ring activity y p An Persons Covered or pr (incl transporter, own or op contri contri trig EPA i in clude operat facility statutory authority that may be available to EPA to st e as forcement and Response Authorities cluding , or in in RCRA § in RCRA § in RCRA § ) ) 7), rizes significant a nterprets to roleum Appendix A ma Any solid waste as Materials Covered 1004(2 defined pet hazardous waste as defined 1004(5 Hazardous wa 1004(5 EPA i defined constituents cover hazardous ty a ) r by nt an id or d list or description of every Activi ent ve red ng g, storage, e ent, ay prese c. Rather, it sum nent an ng erm dlin ggeri mi Han Tri disposal of sol transportation, o treatm hazardous waste that m im substantial Release of enda RCRA § 3008(h into th facility co hazardous waste environment from no s d nt an ctive rim d ome ent to nte dition the nd s Comparison of RCRA § 7003 to Other En ent, storage, ay prese or as or should nent an ng erm spos al facility rim status but ion or other mi Abate con General Purpose that m im substantial enda health environment longer do any unpermitte or di treatm that h Require corre facilities that had status, a inte response measure at have had i act angerments, hazards, releases, et This table does not provide an exhaustive 03(a) 08 (h) RCRA address end § 7003. § 70 RCRA § 30

21 General Purpose Response Authority Additional Notes Persons Covered Triggering Activity Materials Covered Presence or release of Hazardous waste as Current owner or operator Issue an administrative Legislative history RCRA Require monitoring, testing, analysis, and § 3013 defined in RCRA hazardous waste that indicates that the order to require reporting at hazardous § 1004(5) Most recent previous may present a standard for substantial monitoring, testing, waste treatment, owner or operator who substantial hazard hazard is lower than analysis, and reporting storage, or disposal could be expected to know the standard for facility or site to address about the presence and imminent and substantial hazard to potential release of the substantial human health or the hazardous waste, but only endangerment environment if the current owner or operator could not be If EPA conducts expected to know monitoring, testing, analysis, or reporting, it may order the owner or operator to reimburse it for its costs RCRA Require corrective Actual release of Petroleum as defined Operator of the UST Issue an administrative Owner/operator is in RCRA § 9001(8) petroleum from an action with respect to § 9003(h) liable for the costs of order or commence a UST In the case of an UST in any release of petroleum EPA’s enforcement civil action to require use on 11/8/84 or brought from an underground action corrective action into use after that date, the storage tank (UST) owner of the UST In the case of an UST in use before 11/8/84 but no longer in use on that date, the owner of the UST immediately before the discontinuation of its use - 2 ­

22 General Purpose Response Authority Additional Notes Persons Covered Materials Covered Triggering Activity Actual or substantial Hazardous substance Current owners or Perform or require EPA can seek CERCLA Respond to actual or substantial threat of § 104(a) threat of release of as defined in removal or remedial operators, owners or reimbursement of release of hazardous hazardous substance CERCLA § 101(14), action or any other operators at time of response costs under substance including hazardous response measure disposal, generators, and CERCLA § 107 Actual or substantial waste under RCRA consistent with the transporters Respond to actual or threat of release of § 3001, but not National Contingency substantial threat of pollutant or petroleum Plan release of pollutant or contaminant which contaminant which may may present an Pollutant or present an imminent imminent and contaminant as and substantial danger substantial danger defined in CERCLA to public health or § 101(33), but not welfare petroleum Abate imminent and Actual or threatened Hazardous substance CERCLA Commence a civil EPA risks a claim Current owners or as defined in release of hazardous § 106(a) substantial action to obtain such operators, owners or against the Hazardous CERCLA § 101(14), substance that may endangerment to public relief as may be operators at time of Substance Superfund if including hazardous present an imminent health or welfare or the necessary to abate the disposal, generators, and the PRPs believe that waste under RCRA and substantial environment danger or threat transporters they are not liable or § 3001, but not endangerment that EPA was arbitrary petroleum Take other action, such and capricious as issuing an administrative order, to EPA can seek protect public health reimbursement of and welfare and the response costs under environment CERCLA § 107 Ensure removal of a Discharge or Oil as defined in Includes owners and Perform or direct CWA discharge, and § 311(c) substantial threat of CWA § 311(a)(1) or actions to remove the operators mitigation or prevention discharge of oil or hazardous substance discharge or to mitigate of a substantial threat of hazardous substance as defined in CWA or prevent the threat of a a discharge, of oil or a § 311(a)(14) discharge hazardous substance Remove and, if necessary, destroy a discharging vessel - 3 ­

23 General Purpose Triggering Activity Additional Notes Materials Covered Persons Covered Response Authority Oil as defined in Actual or threatened Commence a civil Require action to abate CWA Includes owners and discharge of reportable § 311(e) an imminent and action to secure any operators CWA § 311(a)(1) or quantity of oil or substantial threat to relief necessary to abate hazardous substance hazardous substance public health or welfare the endangerment as defined in CWA that may present an § 311(a)(14) imminent and Take any other action, substantial threat such as issuing an administrative order, necessary to protect public health and welfare Abate imminent and Pollution source that is Pollution source or a Any person causing or Commence a civil “Welfare of persons” CWA action to restrain any contributing to the combination of presenting an substantial § 504 means the livelihood of pollution person causing or sources imminent and endangerment to the such persons contributing to the substantial health or welfare of pollution to stop the endangerment persons discharge of pollutants or to take other necessary action Abate conditions that Contaminant that is Contaminant as Includes persons causing Take action, such as EPA may act if the SDWA may present an § 1431 present in, or likely to issuing an or contributing to the defined in SDWA appropriate state and imminent and enter, a public water administrative order, § 1401(6) endangerment local authorities have substantial system or underground necessary to protect not acted to protect endangerment to the drinking water source, human health, human health health of persons and that may present or commencing a civil an imminent and action for appropriate substantial relief endangerment - 4 ­

24 General Purpose Triggering Activity Response Authority Additional Notes Materials Covered Persons Covered Emission of air Commence a civil Any person causing or Abate imminent and EPA may issue an CAA Pollution source or action to restrain any contributing to the combination of pollutants that is § 303 substantial administrative order if person causing or pollution sources (including presenting an endangerment to public initiating a civil action contributing to the moving sources) imminent and health or welfare or the is not practicable to pollution from emitting substantial environment assure prompt air pollutants to stop the endangerment protection emission or to take other necessary action Issue an administrative order necessary to protect public health or welfare or the environment - 5 ­

25 Appendix B OECA W ORKGROUP FOR IMMI NENT AND SUBSTANTIAL ENDANGERMENT AUTHORITIES RCRA (202) 564-4012 Caroline Ahearn Mary Andrews (202) 564-4011 Leslie Oif (202) 564-2291 Clean Air Act Cary Secrest (202) 564-8661 Clean Water Act and Safe Drinking Water Act Alan Morrissey (202) 564-4026 TSCA Carl Eichenwald (202) 564-4036 Superfund (202) 564-4254 Cate Tierney

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