07/06/89
Guidance on Administrative Records for RCRA Section 3008(h) Actions>
OSWER Directive No. 9940.4
OSWER DIRECTIVE # 9940.4
MEMORANDUM JUL 6, 1989
SUBJECT: Guidance on Administrative Records for RCRA Section 3008(h)
Actions
FROM: /s/ Bruce M. Diamond, Director
Office of Waste Programs Enforcement
/s/ Glenn L. Unterberger, Associate Enforcement Counsel for
Hazardous Waste
Office of Enforcement and Compliance Monitoring
TO: Hazardous Waste Division Directors, Regions I-X
Regional Counsels, Regions I-X
Attached is guidance on compiling administrative records for RCRA
Section 3008(h) corrective action orders. The 40 CFR Part 24 hearing
procedures for Section 3008(h) unilateral orders make compiling good
administrative records key to successfully prosecuting these cases. As we
said when this guidance was issued in draft for your comment, however, many
of the underlying concepts for compiling records are not limited in
application to Section 3008(h) administrative records. This guidance can,
therefore, assist in the preparation of records compiled under other
authorities.
We would like to thank those of you who commented and offered
suggestions on the draft. We believe we addressed them all. In addition,
we have modified the guidance to answer many of the questions that are being
asked at the workshop on Section 3008(h) administrative records and hearing
procedures that is traveling to all the Regions. So far, this workshop has
been given in Regions II, III, IV, IX and VIII and will soon be given in
Regions V and X and Headquarters.
If you have comments or questions concerning this guidance or the
workshop, please contact Rick Colbert, OWPE, at (FTS) 475-9847.
Attachments
9940.4
Guidance on Administrative Records for
RCRA Section 3008(h) Actions
9940.4
EXCLUSIVE USE OF THIS DOCUMENT
This document is intended solely for the guidance of RCRA compliance
personnel employed by or representing the U.S. Environmental Protection
Agency. It is not intended and does not constitute rule-making by the
Agency, and may not be relied upon to create a right or benefit, substantive
or procedural, enforceable at law or in equity, by any person. The Agency
may take any action at variance with the policies or procedures in this
document, or which are not in compliance with internal office procedures
that may be adopted pursuant to it.
9940.4
Table of Contents
I. Scope of Guidance................................................1
II. Purpose of the Administrative Record.............................2
A. Part 24 Hearing Requirements for Unilateral Orders and
Judicial Review.............................................2
B. Public Participation, Oversight, Improved Decisionmaking
and Quality Orders..........................................4
III. Contents of the record..........................................4
A. General.....................................................4
B. Document Sources............................................6
C. Guidances and Directives...................................10
D. Legal Sources..............................................10
E. Technical Sources..........................................10
F. Sampling Data..............................................11
G. CERCLA Sources.............................................11
H. State Sources..............................................11
I. Information Not Included in the Record.....................12
IV. Compiling the Record............................................14
A. When.......................................................14
B. Location...................................................16
C. Organization...............................................16
D. Index......................................................17
V. Maintaining the Record..........................................18
A. Public and Respondent Access...............................18
B. How Long Available.........................................18
C. Notice of Availability.....................................19
D. Controlling the Record.....................................19
E. Document Copying...........................................20
9940.4
Appendix A: Federal Register Notice for 40 CFR Part 24 Final Rule
Appendix B: Model Public Notice of Record Availability
9940.4
I. Scope of Guidance
This guidance applies to administrative records compiled for
administrative orders for corrective action issued pursuant to Section
3008(h) of RCRA. Specifically, it covers administrative records for
unilateral Section 3008(h) orders subject to 40 CFR Part 24 hearing
procedures ( reprinted in Appendix A ) and to Section 3008(h) consent
orders. This guidance does not address administrative records for
unilateral Section 3008(h) orders subject to 40 CFR Part 22 hearing
procedures. 1/
1/ 40 CFR Part 22 governs administrative hearings for unilateral orders
issued under RCRA Section 3008(h) authority if the orders contain RCRA
Section 3008(a) claims, include a suspension or revocation of
authorization to operate under RCRA Section 3005(e) or seek penalties
under RCRA Section 3008(h) for non-compliance with a Section 3008(h)
order. 40 CFR Part 24 governs unilateral orders ( called "initial
orders" in Part 24 ) not subject to Part 22. ( 40 CFR Section 24.01. )
This guidance focuses on the responsibilities of RCRA enforcement
personnel. The extent of those responsibilities depends on whether an
administrative record is for a consent order or for a unilateral order
( subject to Part 24 ). In accordance with Part 24 requirements for
unilateral orders, enforcement personnel must compile an initial
administrative record and deliver it to the Regional hearing clerk by the
date the unilateral order is served on the respondent. During the Part 24
process the hearing clerk is responsible for maintaining the record. 2/
2/ 40 CFR Section 24.03 requires the EPA office issuing a unilateral
Section 3008(h) order to deliver the order and administrative record to
the "Clerk designated by the Regional Administrator." This will
generally, if not always, be the Regional hearing clerk. The hearing
clerk is responsible for maintaining the record and docket for the Part
24 proceeding. In some Regions, it may be extremely difficult or
impossible for the hearing clerk physically to receive, hold and
maintain the record and the clerk may require the assistance of the
office issuing the order in fulfilling these duties under Part 24.
Therefore, before issuing an order, Regional enforcement personnel
should make arrangements with the hearing clerk for the delivery and
maintenance of the record.
Consent orders are not subject to the Part 24 process. Administrative
records for these orders are not, therefore, required to be delivered to and
maintained by the hearing clerk.
The administrative record can be a component in a public involvement
strategy for a facility subject to a Section 3008(h) order.
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This guidance includes some discussion of RCRA public involvement
requirements and strategies. For more information on public involvement,
this guidance should be read in conjunction with "Guidance for Public
Involvement in RCRA Section 3008(h) Actions," OSWER Directive No. 9901.3,
May 5, 1987, and "Guidance on Public Involvement in the RCRA Permitting
Program," OSWER Directive No. 9500.00-1A, January 1986.
II. Purposes of the Administrative Record
* Fulfill Part 24 hearing requirements
* Form basis of judicial review
* Facilitate public participation
* Assist oversight
* Improve decisionmaking and quality of orders
A. Part 24 Hearing Requirements for Unilateral Orders and Judicial Review
An administrative record is the compilation of information upon which an
administrative decision is based. In the context of Part 24 hearings, the
administrative record is the basis of EPA's adjudication of an owner /
operator's objection to the issuance of a Section 3008(h) order. The
process for development of the record under Part 24, however, is different
from that for other administrative adjudications in which RCRA enforcement
personnel are often involved, namely 40 CFR Part 22 hearings for RCRA
Section 3008(a) actions.
Part 22 hearings follow a formal adversarial model. Each party to the
proceeding attempts to present only that information supportive of its
position and only at that time when it is most appropriate for its case.
The administrative records for these decisions are developed as each party,
chiefly during the hearing, submits documents and testimony to the presiding
officer. The administrative hearing procedures found in Part 24 for RCRA
Section 3008(h) cases depart from this process to some extent. These
differences have important implications to RCRA enforcement personnel
preparing the documentation for a Part 24 hearing.
Part 24 creates streamlined procedures for adjudicating RCRA Section
3008(h) order disputes. These procedures allow for less discovery and fewer
opportunities to introduce information after a unilateral order is issued
than is the norm for Part 22 hearings. In light of this, Part 24 requires
EPA to compile, at the beginning of the administrative proceedings, an
administrative record on which it bases its initial order and to include in
the record not only documents supporting issuance of the order, but all
relevant documents ( excluding privileged information ) considered by EPA in
developing and issuing the order. This might include information that does
not always support EPA's conclusions and remedial decisions. These
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administrative record requirements give respondents an early opportunity to
understand the basis for issuance of the order and EPA's theory of the case.
By the date the unilateral order is issued, the record is prepared by
EPA enforcement personnel, including Regional counsel, and submitted to the
Regional hearing clerk. This initial record, now maintained by the clerk,
grows as parties make additional submissions during the hearing process.
Especially for EPA, however, opportunities for additional submissions are
limited or subject to the presiding officer's discretion. Since the record
is the basis of the presiding officer's recommendation and the Regional
Administrator's decision to accept, modify or withdraw the unilateral order,
the streamlining achieved by Part 24 forces EPA to ensure that the
administrative record be as complete as possible from the start.
Another feature of the Part 24 procedures has similar implications.
Part 24 does not give parties the right to present and examine witnesses at
a hearing. This means that EPA cannot expect or plan to supplement or fill
in gaps in the record by presenting witnesses. Therefore, testimony that
EPA believes is necessary to its case should instead be in the form of a
written statement or memorandum included in the record submitted to the
hearing clerk when the unilateral order is issued.
Under the circumstances, those compiling the initial record should act
as if this is the first and last opportunity for EPA to submit documents and
information into the record. Enforcement program personnel should,
therefore, seek out the cooperation and assistance of Regional counsel in
compiling the record to ensure that it will support issuance of the
unilateral order and is otherwise complete.
Part 24 does not address judicial appeals of Section 3008(h) decisions.
The administrative record developed for a Part 24 hearing, however, will be
the basis of judicial review of a Part 24 decision. If the record is poor
or incomplete, the court will either overturn the decision as arbitrary and
capricious or, at best, hold a trial and reconsider the decision itself. At
trial the court could require discovery of and live testimony from EPA
personnel and other supplementation of the record. In all cases, an
inadequate record will cause delay and wasted resources.
The above discussion concerns records for unilateral orders. It can
never be assumed, however, that settlement negotiations will always be
successful. An anticipated consent agreement may, in fact, become a
unilateral order. As a practical matter, therefore, every order to be
issued under Section 3008(h) should be assumed to be a potential unilateral
order requiring a record satisfying Part 24. If enforcement personnel want
to be "ready to go" with a unilateral order as soon it is clear that
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negotiations are unsuccessful, the record also has to be "ready to go." The
comments and issues raised during negotiations by a facility and EPA
responses to them should be memorialized for the record.
B. Public Participation, Oversight, Improved Decisionmaking and Quality
Orders
The administrative record serves other purposes besides satisfying Part
24 requirements for unilateral orders. These other objectives are relevant
to both unilateral and consent orders.
As discussed in the "Guidance for Public Involvement in RCRA Section
3008(h) Actions," EPA is committed to providing meaningful opportunity to
the public to be informed of and participate in decisions that affect them
and their communities. Since the administrative record is the basis for
corrective action decisions, it can be a tool in fulfilling EPA public
involvement objectives. It should also be noted that, regardless of efforts
by EPA to integrate administrative record and public involvement activities,
most documents in the administrative record are, in any case, available to
the public through Freedom of Information Act ( FOIA ) requests. EPA's
compiling and making publicly available an administrative record may save
EPA's and the public's time and resources in making and processing FOIA
requests.
One of the most important guides for determining the quality of Section
3008(h) orders is the administrative record. A review of the order and
record answers questions about the enforceability of, evidentiary support
for and judgment exercised in drafting and issuing an order. These concerns
are shared, in varying degrees, by EPA Headquarters staff, the public at
large and respondents. This should also, therefore, be a concern of
Regional personnel in their day-to-day activities. By emphasizing the
importance of compiling a good administrative record, Regions can ensure
good decisionmaking.
III. Contents of the Record
A. General
The administrative record prepared by enforcement staff for Section
3008(h) corrective action orders supports the order's findings of fact,
determinations of law and ordered relief and must contain all relevant non-
privileged documents and oral information ( which has been reduced to
writing ) considered by EPA in the process of developing and issuing the
order, regardless of whether the documents support the order.
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Just as the order itself must address the elements of a Section 3008(h)
action:
* EPA jurisdiction ( issuance by a delegated authority )
* a release into the environment
* of hazardous wastes or hazardous constituents
* from an interim status facility owned or operated by the respondent
* requiring corrective measures to protect human health or the
environment,
the administrative record must provide factual support for statements and
provisions in the order. for example, jurisdiction could be supported by
copies of delegation orders; releases by sampling data, inspection reports
where evidence of spills is identified, or statements made by respondents in
correspondence, submissions or notifications to EPA; interim status by
notifications, permit applications or certifications required by Section
3005(e) of RCRA, statements by respondents contained in those or other
submissions or correspondence. 3/
3/ If a respondent failed to satisfy the submission requirements of
Section 3005(e)(1), the record will need to show that the respondent
should have had interim status. If statements by the respondent are
insufficient to substantiate this allegation, the record may need to
include deeds, contracts, certifications from a secretary of state
concerning the respondent's corporate identity, reports showing that
respondent treated, stored or disposed of hazardous wastes when it
should have had a permit or interim status, etc.
Without this support, orders issued unilaterally may be modified, withdrawn
or vacated by the Regional Administrator or a court. Although consent
orders are less likely to be challenged, disputes concerning interpretation
of orders could, in some cases, be more readily resolved ( and perhaps
avoided ) by a complete record.
Determining what documents are needed to support an order involves
judgment and discretion. For example, if an aspect of an order is likely to
be contested by a respondent, more supporting documentation may be needed in
the record in that area. These documents may, in fact, raise positions
rejected by EPA. When they, however, are read in the context of other
documents in the record that give reasons for rejecting these positions and
accepting EPA's position, they may lend support and credibility to the
order. Whatever the specific reason may be for including in the record a
supporting document, a fundamental
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factor in making that determination is that EPA may have limited opportunity
after an order is issued to make additional submissions to the record. As
previously discussed in II. Purposes of the Administrative Record, this
factor encourages making the record complete from the beginning.
In addition to documents that support the order, the record must also
include all non-privileged documents and oral information ( which has been
reduced to writing ) considered by EPA in developing and issuing an order.
Under Part 24, documents considered by EPA are documents that were relied
upon or comments which EPA solicited and received from respondents or the
public to proposed EPA decisions or actions relevant to the order.
The record prepared by enforcement personnel for RCRA Section 3008(h)
cases is not supposed to be one-sided, reflecting only EPA's point of view.
As already discussed, choosing to include opposing positions in the record
can lend support to the order. While making that choice in the context of
determining what will or will not support the order involves discretion and
judgment, comments solicited and received by EPA to decisions relevant to
the order must be included, regardless of whether they include information
or opinions that support the position taken by EPA in the order. It is
recommended that an EPA response accompany them. ( Unsolicited comments
received by EPA are not required to be included in the record, but if they
are significant, it is recommended that they be included, along with an EPA
response, since they are likely to be raised at the Part 24 hearing. )
Although a respondent has the opportunity to add information to the
record under the Part 24 hearing procedures, those procedures, as discussed
previously, require and rely on EPA's effort to include in the initial
record all relevant information considered ( relied upon ) by the Agency in
issuing the order. Since it cannot always be determined precisely whether
specific information was relied upon, there should be a preference for
including relevant documents in the record when compiling the record.
Questions concerning inclusions in the record should be referred to Regional
counsel.
B. Document Sources
Documents are writings, drawings, graphs, charts, photographs, and data
compilations from which information can be obtained. Physical samples are
not documents. Computer disks or tapes are not documents ( and are not part
of the record ), but records containing information saved on disks or tapes
and printouts from disks or tapes are documents.
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Various documents may contain relevant information that should be looked
to for inclusion in the administrative record. These documents may
typically be, but are not limited to:
* EPA Investigative Records
- Inspection reports
- Sampling and analytical data and related chain of custody and
quality control / quality assurance documentation ( discussed
further below )
- Photographs
- Statements by witnesses ( factual or expert witnesses )
- Statements / interview reports with current or past facility
employees, managers, etc.
- Records of leads or complaints by citizens
* Communications with Respondents
- Records of conferences or telephone calls
- Written communications
- Technical documents
* RCRA Sources
- Section 3010(a) notifications
- Part A or Part B permit applications
- Response to Section 3007 letter concerning presence of SWMUs
- Comprehensive Monitoring Evaluations ( CMEs )
- Exposure Information Report
- Biennial reports
- Waste manifests
- Facility Assessments ( RFAs )
- Facility Investigations ( RFIs )
- Corrective Measures Studies ( CMSs )
- Responses to Section 3007 information requests
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- Information obtained through Section 3013 orders
- Administrative or Judicial Orders ( e.g., Sections 3008(a), 3013,
7003 ) and supporting documentation
- Groundwater Task Force reports
- Applicable guidances and directives ( discussed below )
- IRIS reports
- Progress reports
- EPA release determination
* CERCLA Sources ( discussed below )
- Section 103(c) Notifications of Reportable Quantities
- Responses to Section 104 information requests
- Preliminary Assessments ( PAs )
- Site Investigations ( SIs )
- Hazard Ranking System ( HRS ) documentation
- Remedial Investigation / Feasibility Studies ( RI/FS )
- Proposed remedial design and action plans
- Records of Decision ( RODs )
- Field Investigation Team Reports
- Action memoranda for removals
* State Sources ( discussed below )
- Investigative records
- Studies
- Orders
- EPA / State or State / respondent communications
- Permit applications
- Responses to demands for corrective action
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* Other Federal Program Records
- Clean Air Act or Clean Water Act permits and permit applications
- TSCA / OSHA inspections
- DOD Installation Restoration Program Reports
- Reports from the Department of Interior and other Federal or State
Natural Resource Trustees
* Documents Filed with the Regional Hearing Clerk or Presiding Officer.
( For enforcement personnel compiling a record for a consent order or a
unilateral order, this category of documents generally includes only
documents submitted in a related prior proceeding. The hearing clerk
handles submissions made during pending Part 24 proceedings. )
* Miscellaneous sources
- Well permits
- Deeds
- Legal descriptions of property
- U.S. Geologic Survey and state hydrogeologic maps
- Population data from U.S. Census Bureau or local utilities
- Weather information from airports or weather bureaus
- Toxicological reports
- Financial reporting documents, such as Dunn & Bradstreet profiles
( for issues such as the need for financial assurance )
- Securities and Exchange Commission ( SEC ) corporate filings
* Public Involvement
- Public notice and analysis of proposed corrective measures
- Public comments
- Documentation of information obtained at public meetings
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- Other communications with public, including congressional
correspondence
- Responses to public comments
- Newspaper or magazine articles
This list is not exhaustive and there will likely be other possible
sources for documents included in the record. As discussed under III. I.,
Documents Not Included in the Record, some documents listed above, or parts
of them, may be privileged and should not be in the record.
C. Guidances and Directives
EPA guidances or directives that were relied upon in developing or
issuing the order should be part of the administrative record. They do not,
however, have to be physically in the record if they are referenced in the
index and readily accessible for inspection and copying in the same building
where the administrative record is kept. In determining whether to include
copies of guidances or directives ( or portions of them ) in the record, the
burden to EPA of making copies of voluminous or repeatedly used documents
should be weighed against the added burden to those reviewing the record of
having to look elsewhere in the building for these documents. To minimize
this problem, it is recommended that the Region keep a guidance and
directive library in the same area as the administrative record.
D. Legal Sources
Legal sources - statutes, regulations, court or administrative
decisions, notices published in the Federal Register - are not required to
be part of the administrative record. For legal sources not generally
available at a public law library, such as unreported court cases and
administrative orders or decisions, it is recommended that copies be
available for inspection and copying in the building where the
administrative record is kept. This procedure can assist the respondent and
the public in reviewing the record.
E. Technical Sources
Technical sources such as scientific or engineering textbooks, manuals
or articles that were relied upon in issuing or developing the order must be
part of the administrative record. Large documents or ones that are
frequently referenced in Agency orders may be treated analogously to EPA
guidances or directives, as discussed above, and not physically placed in
the record.
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F. Sampling Data
Sampling data relied upon by EPA in issuing or developing the order
should be in the record. The sampling data and sampling chain of custody
forms are part of the record but they may be kept in their original storage
location, e.g., Environmental Services Division or contract laboratory.
Data summary sheets, however, must be physically located in the record. The
index must list the data summary sheets, reference the underlying sampling
data and chain of custody forms, and indicate where the underlying data and
forms can be found.
G. CERCLA Sources
If RCRA Section 3008(h) action is taken at a site where there is also
Comprehensive Environmental Response, Compensation, and Liability Act
( CERCLA ) activity, information developed for CERCLA actions will likely be
relevant to Section 3008(h) decisions and should be part of the Section
3008(h) record. At the same time, information developed under RCRA,
including under Section 3008(h) authority, will likely be included in CERCLA
files and administrative records. The administrative record requirements
for CERCLA response actions are discussed in "Interim Guidance on
Administrative Records for Selection of CERCLA Response Actions," OSWER
Directive No. 9833.3A, dated March 1, 1989.
The often close relationship between RCRA Section 3008(h) and CERCLA
activity at the same facility or site will require coordination to ensure
that the requirements of both legal authorities are efficiently met.
Generally, either CERCLA or RCRA staff will have lead responsibility at a
site. With respect to administrative records, good organization of
documents concerning a facility or site will make compiling records for RCRA
Section 3008(h) orders or CERCLA response actions easier. Compiling a joint
Section 3008(h) / CERCLA response action administrative record, however, is
not recommended. There are various reasons for this.
Although some aspects of a RCRA Section 3008(h) orders and CERCLA
response selections are similar - such as using or requiring information as
to the nature and extent of contamination or the ability of certain
technologies to effect a cleanup - other aspects are not. These differences
in the decisionmaking process may affect what goes into an administrative
record for a RCRA Section 3008(h) order or a CERCLA response action and
dictate against compiling joint records.
H. State Sources
States may be taking actions under their own authorities at facilities
that may be subject to Section 3008(h) orders. As with
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CERCLA activity, information developed by the State may be relevant to
Section 3008(h) decisions. If this information was relied upon, it must be
in the Section 3008(h) administrative record to make it complete.
Inspecting the record must not be a treasure hunt. Merely referring to or
referencing state files or "administrative records" is generally not
sufficient and requiring those reviewing the record to go to different
locations to find the various pieces is not acceptable. Since many States
will not have one centralized agency collecting documents relevant to the
Section 3008(h) order, EPA may have to look for documents kept in various
agencies, such as those for health, agriculture, fish and wildlife,
transportation, etc.
I. Information Not Included in the Record
* internal deliberative material
* attorney work-product
* attorney-client communications
* investigative techniques or procedures
* confidential business information in the public record
Certain documents, even though they relate to a facility, might not meet
the test for inclusion - they neither support the order nor were they relied
upon or considered by EPA in developing or issuing the order and thus are
not relevant. These documents might be kept in a file for the facility, but
they should not be included in the administrative record for a Section
3008(h) order that is compiled, indexed and subject to inspection and
copying by respondents and members of the public. ( Although these
documents are not part of the record, some might be available to the public
through Freedom of Information Act ( FOIA ) requests. )
Privileges that EPA may claim. Inter- or intra-agency documents that
are pre-decisional deliberative material, attorney work-product, attorney-
client communications and certain law enforcement records, including those
that disclose investigative techniques and procedures ( such as certain
enforcement guidances and manuals ) or could reasonably be expected to
interfere with enforcement proceedings, are exempted from disclosure to
respondents and the public and should not be included in the record. 4/
4/ Part 24 states that the record be "...exclusive of privileged internal
communications." 40 CFR Section 24.03. Note that rules concerning
inclusion of privileged documents in administrative records compiled
under CERCLA for selection of response actions may be different.
EPA may, however, waive these privileges ( by disclosure to third parties ),
but this should not be done without first consulting Regional counsel.
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Inter- or intra agency documents that are pre-decisional deliberative
material are frequently drafts, notes or memoranda expressing opinions or
recommendations, as opposed to factual information, to staff or management.
To be within the privilege, documents must be pre-decisional. Drafts are a
category of documents likely to be within the privilege. If the draft
document is expressly adopted in or is used as the final document, however,
or if it is circulated outside the government ( and its contractors ), the
draft loses the deliberative process privilege protection.
Attorney work product includes documents prepared in anticipation of
litigation by an attorney or under an attorney's supervision, including
reports by consultants or program staff and certain witness statements and
interview reports. Since this privilege does not terminate when a
proceeding is concluded, documents subject to the privilege could include
work related to past enforcement proceedings.
Attorney-client communications, as between Regional counsel, OECM, OGC
or DOJ and EPA program personnel, include information intended to be kept
confidential and made in connection with obtaining or giving legal advice.
In order to retain the privilege, the information must be treated
confidentially and not be disclosed to third persons.
The above privileges are the most likely to arise in compiling the
record. This is, however, not an exhaustive list or a complete discussion
of privileges. Regional counsel should, therefore, be consulted concerning
the applicability of privileges. In addition, Regional and Headquarters
personnel responsible for implementing FOIA may be able to provide advice on
privileges. 5/
5/ The Freedom of Information Case List, published annually by the
Department of Justice, Office of Information and Privacy, is a good
reference for FOIA and privileges.
Confidential Business Information. Confidential business information
( CBI ) furnished to EPA is subject to a privilege claimed by the business
submitting the information. EPA does not have the discretion to waive CBI
and disclose it to the public. In fact, there are penalties for improper
disclosure of business information that is entitled to CBI treatment. See
18 USC Section 1905.
EPA has issued, under 40 CFR Part 2, Subpart B, detailed regulations
concerning CBI, including the rules for handling business information which
is or may be entitled CBI treatment and for determinations by EPA of whether
information is, in fact,
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entitled to CBI treatment. Certain statutory provisions may set different
standards for what qualifies as CBI ( for example, SARA Title III ) so the
statutory provision under which information is submitted should be referred
to when a question concerning CBI arises. Other statutory provisions may
affect rules for non-disclosure of information. For example, information
obtained under RCRA Section 3007 may be disclosed in certain circumstances
if relevant to a proceeding under RCRA, such as issuance of a Section
3008(h) order. See 40 CFR Section 2.305. Before including in the record
material that may be subject to CBI, Regional counsel should be consulted.
Since CBI is a privilege claimed by the business submitting the data,
that business can waive the claim. EPA can ask the business to waive CBI or
narrow its claim. In addition, EPA may provide CBI to the business
submitting it.
Using Privileged Information and CBI. EPA may wish to include in the
administrative record relevant documents protected from disclosure because
of a privilege or CBI. Rather than waiving a privilege ( assuming EPA may
do so ) or not using the document and excluding it from the record, EPA can
consider certain alternatives. First, documents can be included in a
confidential portion of the administrative record that is withheld from
public disclosure but is available to the respondent. This can be used with
CBI submitted by the respondent since CBI treatment is maintained. For most
other privileges, however, disclosure to the respondent may waive EPA's
privilege. All documents placed in the confidential portion of the
administrative record must be identified in the administrative record index,
which is available to the public.
Second, information contained in an excluded document can, if feasible,
be extracted and placed in the record available to the public and the
respondent. This can be done by summarizing the relevant information or
editing out the information not to be made public. For example, factual
information contained in a draft document subject to the privilege for
inter- or intra-agency pre-decisional deliberative material can be extracted
into another document and placed in the record. If EPA follows the first
alternative and creates a confidential portion of the record available to
the respondent, it should also attempt to extract from that record non-
protected information for public disclosure.
V. Compiling the Record
A. When
The record must be compiled and indexed on or before the date a Section
3008(h) unilateral order is served on a respondent ( 40
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CFR Section 24.03 ). A record should be compiled and indexed for consent
orders when they are issued.
Ideally, the record should be compiled as documents and information are
obtained by EPA. The process of indexing, organizing and updating the
record can help make EPA decisionmaking more orderly and efficient.
Following such a process will make it easier for staff newly assigned to
work on a case to become familiar with it and allows staff already assigned
to a case to leave one case to work on another. Managers also will have the
flexibility to require these moves.
Public interest concerning activities at a facility should be considered
when deciding when to begin compiling a record. If there is exceptional
public interest and there has been or may be requests for access to
documents in a facility file, beginning to compile a record early and making
it available to the public is advisable. The final compilation of the
record can be done before the order is issued.
As an alternative to beginning to compile the record early in the
process, Regions could make available to the public especially important
documents related to corrective action. These could include the RCRA
Facility Assessment ( RFA ), the RCRA Facility Investigation ( RFI ) Report
and the Corrective Measures Study ( CMS ) Report. The public comment period
for selection of a corrective action plan is a critical point for public
involvement and making these documents publicly available could facilitate
the process. Regions are very strongly urged to adopt this approach for the
comment period. Note that the comments received by EPA, along with its
responses, must be included in the record.
The complete Section 3008(h) corrective action process will not
generally involve a single order or a single event for implementation. The
process is dynamic. Documents and information resulting from earlier
activities at a facility may be used to build administrative records for
subsequent actions. For example, orders will generally be issued in two
stages - the RCRA Facility Investigation ( RFI ) through the Corrective
Measures Study ( CMS ) as one order, and the Corrective Measures
Implementation ( CMI ) as a second order - with the second building on the
first. There may be additional orders required to enforce implementation a
Section 3008(h) order. In addition, many activities, some over extended
periods of time, will be occurring during implementation. The information
may be of interest or necessary to those following or overseeing corrective
action activities at a facility.
Regions should, therefore, keep with the record for the final order
( i.e., the record accompanying issuance of a consent order or the record as
it stands after completion of Part 24 proceedings ) relevant documents
obtained during implementation of
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the order. Technically, these post-decisional documents are not part of the
record for the final order and should be identified as supplemental to the
record for the final order.
B. Location
The record should be located in the Regional Office issuing the order.
( For unilateral orders, the record must be maintained by the Regional
hearing clerk at the Regional office during the Part 24 process ). If there
is substantial public interest in a facility, Regions should consider
keeping additional copies of the record ( or a subset of documents from it )
near the facility - a library, for example, or other information repository
- or at a state environmental office. If RCRA permitting or CERCLA has
created an information repository at or near the site, the Region should
consider using the same location.
It should be noted that CERCLA regulations require that the complete
administrative record file be kept at the EPA Regional office and a copy of
this file, with some exceptions, be located at or near the site. At Federal
facilities where CERCLA authorities are being used, CERCLA administrative
records are compiled by the Federal agency in accordance with CERCLA
administrative record and public participation requirements. However, the
complete record is located at the Federal agency office comparable to an EPA
Regional office, rather than at the EPA office. If a Section 3008(h) order
is issued to a Federal facility, regardless of whether CERCLA activity is
also occurring, EPA retains responsibility for compiling the Section 3008(h)
record and locating it at the EPA Regional office.
C. Organization
The record must be in some logical order. The record is supposed to be
a working file that allows users to locate documents relevant to their
interests. A logical order helps achieve this goal.
The simplest and often most useful organization is arranging all
documents chronologically. Even if documents are arranged by subject areas
in sub-files, documents should be arranged chronologically within each sub-
file. Generally, documents should be put in the record according to the
date they were completed, not received by EPA. The date of EPA's receipt of
a document is, however, often relevant and Regions should make it standard
practice to stamp the date of receipt on all documents.
There are innumerable subject areas that can be used to organize the
record into sub-files. The headings found under Document Sources in this
guidance are one possible set of subjects. Other possibilities include
arranging the record
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9940.4
according to the elements of the order or segregating documents relating
specifically to the facility from other documents, such as guidances,
directives or technical sources. When certain issues can be identified
beforehand as being of special interest or subject to dispute, they can be
the basis for record division. The choice of file organization can be a
matter of personal preference. For example, an attorney handling a Section
3008(h) hearing may prefer, in presenting the record to the hearing officer,
one file organization over another. As long as the chosen organization is
logical, it is acceptable.
Each document should be given a document number or letter. This number
should be marked on the front of the document or the blank flip side of the
first page. The number should be a serial number showing the document's
location in the entire record or within some sub-file. The number must be
unique to the document so that documents with similar descriptions, titles
or dates can be differentiated. It is recommended that each page of the
record be numbered in series.
D. Index
The record must be indexed. The index serves several functions. It
must, at a minimum, identify all documents in the record and their location.
By knowing what is supposed to be in the record and where, EPA is better
able to prevent the unauthorized addition or removal of documents from the
record by those inspecting it. The index also helps the user to locate
documents in the record.
An index may be little more than a table of contents that tracks record
organization. The index, however, can also supplement organization. For
example, if the record is arranged chronologically, the index could be
arranged by subject. This gives the user two ways of locating documents in
the record.
If the resources are available, various indexes can be created by using
a computer database management system. Documents comprising the record can
be coded according to various fields, and indexes created by the choice of
fields. A chronological index, for example, could be created using the date
field.
Regardless of the type of index used, it should contain the following
information for each document:
* Description of the document. This should include the document's title,
if any, and a very brief description identifying a document's subject or
contents. This description should enable differentiating the document
from other documents in the record.
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9940.4
* Identity of the author and recipient. It is recommended that their
affiliations or tiles also be included.
* Date. Give the date ( or approximate date ) that the document was
completed or generated.
* Location of the document. If the document is physically in the record,
give the sub-file name, if any, and the document's number ( see
Organization, above ). If the document is not physically in the file
( such as an EPA guidance or CBI that is in a confidential file ),
identify where it is located.
* Number of pages in document.
V. Maintaining the Record
A. Public and Respondent Access
During the time a unilateral Section 3008(h) order is subject to the 40
CFR Part 24 procedures, the hearing clerk must satisfy Part 24
administrative record requirements for public and respondent access to the
record.
The administrative record for consent orders and unilateral orders after
the Part 24 process is completed should be accessible to the respondent and
the public for inspection at the Regional Office during normal business
hours, for example, 9 A.M. to 4 P.M., Monday through Friday. Every effort
should be made to make the records available without requiring the
respondent or members of the public to give EPA prior notice or make an
appointment. Resource shortages, both personnel and space, may, however,
justify a reasonable prior notice requirement.
Even if it adopts such a requirement, the Region should attempt to
continue to work toward obviating the need for requiring prior notice. If
continual need for access to a specific record is anticipated, as where
there is substantial public interest in a facility's activities, an attempt
should be made to arrange for access without requiring prior public or
respondent notice to the Region.
In no case should the person seeking access to the record demonstrate
need or be required to pay a search or access fee. ( See Document Copying,
below. )
B. How Long Available
The record for consent orders and unilateral orders that are final after
the Part 24 process should be available to the public and the respondent
until the respondent's obligations under the order are satisfied and the
order terminated. Order
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9940.4
implementation may occur over a long period and public interest in having
easy access to the record may eventually decline, as when a remedy is in a
routine maintenance and monitoring phase. Taking this into account, Regions
may wish to balance the resources required for keeping the record at the
Regional Office against archiving it elsewhere and retrieving it when a
specific request for access is made.
C. Notice of Availability
At or before the time the administrative record for a unilateral order
is delivered to the hearing clerk or a consent order is issued, the Region
should notify the public of the availability of the record for inspection.
( Appendix B contains a model notice. ) The procedures for public notice
found in "Guidance on Public Involvement in the RCRA Permitting Program,"
should be followed. Regions should also consider providing additional
notices for the availability of the record at other times. For example, if
the Region has started compiling the record and making it publicly available
prior to issuance of an order, such as during the comment period for
selection of the corrective measure, the public should be notified. Notices
should contain any requirement for those seeking to review the record to
contact Regional personnel beforehand.
Unilateral orders must notify respondents of the availability of the
record.
D. Controlling the Record
Access to the record should be controlled to ensure its continued
integrity. These should be a sign-in log for those inspecting the record.
The log should ask for the individual's name, address, phone number, and
affiliation, and also record which administrative record ( there may be
records for other cases at the same location ) was inspected and any copying
fee collected or waived ( see Document Copying, below )
Agency personnel should be at or near the area where a record is being
reviewed. They can provide assistance to those reviewing the record and
also help supervise the area to prevent documents being lost or damaged or
the record becoming disorganized. After a record has been inspected, it
should be checked to determine that all documents have been returned intact.
The record available for public and respondent inspection should be a
duplicate copy of the record. It is very strongly recommended that EPA
request that respondents provide at least one additional copy of their
submissions for inclusion in the
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9940.4
publicly available record. The master copy of the record should be kept by
the Agency.
E. Document Copying
The record at the Regional Office should be available to the public and
respondent for copying. EPA can have a copying machine available for public
use where the record is located, or the Agency can make copies for
requestors.
If EPA makes partial or complete copies of the record available for
inspection in addition to the one at the Regional office, EPA should also
attempt to have copying facilities available at these locations.
Regions should follow FOIA requirements and policies in determining the
appropriate charge for copying. Generally, copying fees should be waived
for other Federal agencies, members of Congress and EPA contractors or
grantees. For all other persons or entities, including respondents, the
duplication cost for paper copies of paper originals is $.15 per page,
actual cost for duplicating photographs and non-paper originals. No fee
should be charged to anyone for the first 100 copies of paper originals. In
addition to these free copies, there is an administrative fee waiver for
subsequent copying costs up to $25.00. ( At $.15 per page, this
administrative fee waiver covers another 166 copies. ) The reason for this
waiver is that the Agency does not collect a fee if the cost of processing
and collecting the fee exceeds the amount it is permitted to collect. The
Agency has determined that $25.00 is the cost of collecting and processing
fees. There is no administrative fee waiver if copying costs exceed $25.00.
Therefore, if more than 266 copies are made ( 100 free copies plus 166
copies under the administrative fee waiver ), the $.15 per page charge
should apply to all copies beyond the free first 100 copies.
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OMITTED TEXT: Appendix A - 53 Fed. Reg. 12256; Appendix B - Model Public
Notice of Record Availability
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