UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460

ATTACHMENT 2

SEP 8 1998

Office of Solid Waste and Emergency Response

MEMORANDUM

SUBJECT:
Enforcement Actions at Government-Owned Contractor-Operated Facilities

FROM:
Bruce Diamond, Director
Office of Waste Programs Enforcement

TO:
Regions I-X
Regional Counsels
Regions I-X

The purpose of this memorandum is to provide you with copies of three enforcement actions that EPA recently issued to the contract operators of government owned facilities (GOCO). Two of these actions were brought under RCRA Section 3008(a) for violations of RCRA regulatory requirements. The third action is a notification letter for potential liability under CERCLA Section 107. I commend Region V and VI for taking the initiative in issuing these actions as the Assistant Administrator has encouraged in both the January 1988 guidance and in congressional testimony.

To assist you in determining whether an action against a contractor may be an appropriate means of achieving compliance and cleanup at a Federal facility, I have highlighted the rationale used by Regions V and VI for proceeding against the GOCO in each of these cases.

Case #1 - GOCO has primary responsibility for hazardous waste management activities

In the case of the Lone Star Army Ammunition Plant, a RCRA Section 3008(a) complaint was issued to the contractor after it had determined that the contractor had practical and contractual responsibility for the hazardous waste management activities at issue. The ability to correct the violations was within the contractor's control. The complaint included a proposed penalty for the violation.

Case #2 - Prolonged and inconclusive negotiations with the Federal Agency

At the Ravenna Army Ammunition Plant, a RCRA Section 3008(a)complaint was issued to the contractor after lengthy correspondence with the Federal Agency failed to resolve the compliance issue. The complaint included a proposed penalty for the violation.

Case #3 - GOCO is performing the work

At Air Force Plant #4, the contractor was issued a CERCLA notice letter as a potentially responsible party for the performance of a remedial investigation. In this case, the contractor is a long-term operator at the facility; it is believed that the contractor contributed to the contamination problem at the facility; and the contractor is already performing the remedial investigation at the facility.

The decision on whether to pursue a GOCO enforcement action and the timing of that action will always be made on an individual basis as the facts of each case are unique. However, it is useful to build upon practical experience in an effort to anticipate the problems and issues before they occur.

I encourage you to provide the Federal Facility Hazardous Waste Compliance Office (FFHWCO) within OPWE your ideas and comments on the criteria for pursuing enforcement actions under RCRA and CERCLA at GOCO facilities. As I mentioned, the Assistant Administrator is encouraging these actions and the FFHWCO is developing a policy on when they should be pursued. You should relay to the FFHWCO any issues or problems that you have encountered when considering or pursuing enforcement actions at a GOCO facility.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, DC 20460

ATTACHMENT 1

JUN 24 1987

Office of
Solid Waste and Emergency Response

MEMORANDUM

The purpose of this memorandum is to clarify who should sign as the operator on permit applications for Government-Owned Contractor-Operated (GOCO) facilities. Earlier guidance (see attached memo) had recommended that the Regional office consider the role of the contractor in the operation of the facility before determining who should sign the permit application. We also noted that in some cases where the contractor's role is less precisely defined the Region should exercise judgement given the factual situation.

It appears there is still some confusion regarding signatories for permit applications. Whenever a contractor or contractors at a government-owned facility are responsible or partially responsible for the operation, management or oversight of hazardous waste activities at the facility, they should sign the permit as the operator(s). In some instances both the Federal agency and the contractor(s) are the operators and multiple signatures to that effect would be appropriate. A review of the facility's operating records, contingency plans, personnel training records, and other documents relating to waste management should indicate who the operator(s) are. As a general rule, contractors will meet this test and therefore in most situations should be required to sign the permit application.

If you have any questions please contact Jim Michael, Office of Solid Waste at FTS 382-2231 or Anna Duncan, Office of Waste Programs Enforcement at FTS 382-4829.

Attachment