Private Monitoring of Hazardous Waste Sites: A Primer on § 3013 Orders

Janet D. Smith

Editors' Summary: The federal government has broad authority to protect the public health and the environment from hazardous substance pollution, but that power often must sit idle until the nature of the hazard posed by a given disposal site can be determined. EPA can investigate apparently hazardous disposal sites itself, for example under § 104(b) of CERCLA. The Agency also orders private parties to conduct preliminary investigations of sites. Under RCRA § 7003 and CERCLA § 106(a) EPA orders monitoring of sites believed to present imminent and substantial endangerment to public health or the environment. The broadest authority to order monitoring of hazardous waste sites is found in RCRA § 3013; authority that EPA has used in an increasing number of cases in recent years. In this Article Ms. Smith, who has negotiated a number of § 3013 orders, examines the bounds of EPA's authority under the section and offers practical suggestions for the recipient of § 3013 orders.

Ms. Smith is with the New York City law firm of Winer, Neuburger & Sive. The author gratefully acknowledges the guidance of Daniel Riesel in shaping the article and the assistance of Maria Basile in preparing the manuscript.

[14 ELR 10202]

Among the several tools the Environmental Protection Agency (EPA) uses to obtain information about the potential threats from hazardous waste, § 3013 of the Resource Conservation and Recovery Act (RCRA)¹ is becoming increasingly prominent. Section 3013 authorizes EPA to issue administrative orders mandating the monitoring of hazardous waste facilities and disposal sites. In broad stroke, § 3013 allows EPA, administratively, to order the owner or operator of a hazardous waste facility to carry out "such monitoring, testing, analysis, and reporting … as the Administrator deems reasonable to ascertain the nature and extent"² of a potentially substantial hazard to human health or the environment.

Section 3013, added to RCRA in 1980,³ authorizes EPA to investigate inactive hazardous waste sites otherwise outside the RCRA regulatory net.⁴ RCRA also includes a monitoring provision typical of federal pollution control statutes,⁵ § 3007,⁶ which authorizes EPA to inspect and obtain information about hazardous waste treatment, storage, and disposal facilities as needed to establish the basis for RCRA regulations or to enforce them. Pursuant to § 3007, EPA can investigate any person who "generates, stores, treats, … disposes of, or otherwise handles or has handled hazardous wastes …." When it added the "or has handled" language in 1980, Congress extended § 3007 to inactive disposal sites,⁷ but [14 ELR 10203] seemingly only to persons who handled the waste; that is, not to current owners of land on which someone else disposed of hazardous wastes or accepted them for disposal. Section 3013 orders may be issued to current owners of land on which others operated sites in the past, and to owners or operators of sites that do not currently contain hazardous waste, if such waste was previously released from the site.⁸ Thus, the reach of a § 3013 investigation is broader than one under § 3007, because it gives EPA unambiguous authority to investigate all inactive sites. Moreover, the nature of a § 3013 investigation also may be broader than one under § 3007. Section 3007 appears on its face to be limited to the inspection of records and the sampling of hazardous wastes.⁹ Pursuant to § 3013, EPA may order the identification and monitoring of the contamination by hazardous waste of groundwater or other environmental media.

The broad jurisdiction of § 3013 facilitates the shifting of a significant portion of the financial burden of monitoring hazardous waste sites, both active and inactive, from the public to the private sector. Indeed, § 3013 may reflect a congressional determination that site owners and operators must bear a portion of this burden. Plainly, the magnitude of the nationwide problem of hazardous waste contamination had become so great when § 3013 was enacted that EPA could not conduct all requisite investigation and monitoring without assistance from the private sector.

The legislative history of the 1980 RCRA amendments suggests that a primary objective for § 3013 was to aid EPA in defining the dangers posed by inactive hazardous waste sites. Section 17 of those amendments, entitled "Inventory and Monitoring," consists of two parts: the first section requires each state to inventory all sites where hazardous waste had been stored or disposed of, regardless of whether the sites were currently active; the second section is § 3013.¹⁰ Thus, by congressional directive, all hazardous waste sites, whether active or inactive would be identified, and EPA could order the investigation of the hazards posed by these sites.

Of course, history reflects that several months after the passage of the 1980 RCRA amendments Congress enacted an environmental statute whose chief focus is inactive hazardous waste sites, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).¹¹ Although § 17 of the 1980 RCRA amendments has been effectively superseded by CERCLA § 103¹² for identifying inactive hazardous waste sites and CERCLA gave EPA new authority to investigate inactive sites, § 3013 has remained a viable tool in EPA's hazardous waste enforcement scheme.

Indeed, § 3013 orders have become an important investigative tool that EPA is using increasingly to obtain information about hazardous waste sites and their environmental and health effects. Yet there is only one reported case interpreting § 3013,¹³ and there is no published commentary. This article considers the role and significance of § 3013 orders; it begins with a general discussion of who is likely to receive a § 3013 order, offers suggestions for recipients, and analyzes the statutory language and EPA's interpretation of § 3013.

The Impact of a § 3013 Order

In theory, anyone who owns or operates a hazardous waste facility from which there may be a release of hazardous waste posing a substantial hazard to human health or the environment may receive a § 3013 order.¹⁴ However, there are circumstances under which the owner or operator of a hazardous waste facility may be a likely candidate for a § 3013 order. Recently, EPA has used § 3013 orders in remedial investigations of sites containing hazardous substances, conducted in accordance with the National Contingency Plan governing EPA's actions pursuant to CERCLA.¹⁵ During such remedial investigations, EPA generally strives to define the scope of hazardous substance contamination, to devise remedies for the containment of contamination, and to select the most cost-effective remedial action. A § 3013 order can be a highly effective complement to an ongoing CERCLA investigation because the order readily enables EPA to transfer a portion of the cost of a monitoring regime to the private sector. Under CERCLA, EPA could investigate contamination at a site, and then commence a civil [14 ELR 10204] action to recoup its expenses.¹⁶ Alternatively, EPA could file suit under CERCLA § 106 to abate an imminent hazard from the site and seek an investigation as part of the relief. However, it is obviously faster and more efficient to utilize an administrative order.¹⁷ Thus, the owner or operator of a hazardous waste facility with some nexus to a site under federal investigation pursuant to CERCLA is a likely recipient of a § 3013 order.

For several reasons, a § 3013 order is potentially troublesome to the recipient. Monitoring in the vicinity of a hazardous waste facility can be extremely expensive, even at a relatively small facility. As noted above, although § 3013 is not without antecedent in federal environmental legislation, its reach exceeds that of its precursors. The scope of § 3013 is not restricted to ordering the reporting of available information, or the sampling of pollutants or wastes generated by the recipient of the order. Under the authority of § 3013, EPA can order the owner or operator of a facility to conduct any monitoring reasonable to ascertain the nature or extent of a hazard, including groundwater monitoring. Thus, using an administrative order, EPA can direct the recipient to carry out an elaborate and expensive monitoring regime. Rather than focusing narrowly on defining the source or cause of environmental contamination, § 3013 focuses widely upon defining the environmental impact of that contamination. This expansion in focus from monitoring the source to monitoring its effects could make § 3013 compliance expensive. It also could expose the recipient to other financial risks, for example by producing evidence useful in establishing common law liability.

EPA has acknowledged several reasons why § 3013 is unusually broad: "the potential scope of these orders, [and] the fact that they go beyond collection and reporting of available information and can impose significant affirmative duties (and attendant costs) on recipients."¹⁸ Further commenting on the breadth of § 3013, EPA has cautioned against abuse of its power:

[§ 3013] represents a broad grant of authority … to order site and facility owners and operators to determine the existence and/or magnitude of health and environmental problems. This authority should be used in appropriate circumstances to gather information upon which decisions concerning further actions will be based. However, the use of this provision must be guided by reasonable and informed judgment to avoid potential abuse.¹⁹

In addition to the burden of expenses that may be incurred, a § 3013 order may evoke other serious concerns among recipients. Typically, EPA may seek to incorporate into a § 3013 order findings of liability for hazardous waste contamination of a geographic area. If the order is issued on consent, such findings might subsequently be relied upon by the federal government or by third parties in litigation. Section 3013 prescribes judicial sanctions for breaches of its orders, including civil penalties of up to $5,000 per day.²⁰ EPA probably would seek to incorporate in a § 3013 order stipulated penalties for violation of the order's terms. EPA also may seek to utilize the administrative order to build a record of noncomplying actions on the part of a recipient. For these reasons, a proposal by EPA to issue a § 3013 order should be greeted cautiously.

While a § 3013 order can carry problems, it also offers an important opportunity. The recipient can control the monitoring process that will color its subsequent legal obligations. Given the uncertainties and potentially high cost involved in groundwater monitoring, it often will be in the order recipient's interests to be responsible for the process.

Frequently, EPA will propose negotiating the § 3013 order. Whether to cooperate with the government is a crucial decision. Negotiation may be advantageous to the private party because it affords that party an opportunity to contribute to the terms of the order. On one hand, the private party's concern for social responsibility may argue for a negotiated order. However, the order probably will require expenditure of significant sums and may subject the recipient to legal risks. The decision may depend on the probative value of the government's information tying the recipient to an alleged environmental hazard.

Pursuant to § 3013(d),²¹ if the recipient of the order refuses to monitor, EPA may conduct a monitoring program of its own design, reserving the right to seek reimbursement at a later date. Thus, assuming the existence of credible information linking the recipient to an alleged environmental hazard, the recipient may have little choice when confronted with an EPA proposal to issue a § 3013 order. On the other hand, if the recipient prefers an aggressive posture, it may seek immediate judicial review of the order in federal district court.²²

Standards for Issuing § 3013 Orders

Legal Basis of § 3013 Orders

If one's client is the recipient of a § 3013 order, the legal review of EPA's proposal should be careful and detailed.As a starting point, the recipient should determine whether [14 ELR 10205] there is sufficient legal basis for the § 3013 order. The standard for this determination is § 3013(a), which provides, in pertinent part:

If the Administrator determines upon receipt of any information, that —

(1) the presence of a hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or

(2) the release of any such waste from such facility or site may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable to ascertain the nature and extent of such hazard.²³

Section 3013 also authorizes the issuance of administrative orders under two other circumstances. If a facility is no longer operating, EPA may order a previous owner or operator to monitor. In addition, EPA may conduct the requisite monitoring, or authorize a state or local authority, or another person, to do so. EPA may then order the responsible owner or operator of the facility to reimburse that party for the monitoring costs.²⁴

Paraphrasing the language of § 3013(a), EPA may issue an administrative order if it determines that: (1)(a) the presence of hazardous waste at a site where hazardous waste is, or has been, stored, treated, or disposed of, or (b) the release of hazardous waste from such a site, (2) may present a substantial hazard to human health or the environment. EPA must render positive determinations under either branch of item (1) and item (2) to justify the issuance of a § 3013 order. The key elements of this provision warrant further discussion.

* "Upon Receipt of Any Information." EPA has expounded upon the nature of the "information" it will deem sufficient to support a § 3013 order:

The … requirement … that "information" be presented … means that some reliable information upon which a reasonable person would base a decision … must be gathered …. Normally, an unsubstantiated citizen complaint would not be considered sufficient basis to support the issuance of an order. However, if that complaint were supported by corroborating evidence (e.g., laboratory analysis of samples), gathered by an appropriate government agency or provided by the recipient himself, the complaint and corroboration could normally be considered "information" upon which the issuance of an order might be based. In many circumstances, of course, it will be necessary to utilize EPA resources to conduct investigations and sampling and analysis needed to develop or corroborate the required information.²⁵

Thus, the information presented to EPA must be from a reliable source and substantiated.

* Presence of Hazardous Waste. The concept of "hazardous waste" is the foundation upon which all of RCRA is based. Its meaning derives from a body of complex statutory language and encyclopedic regulations promulgated by EPA.RCRA defines the term "hazardous waste" as

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may … pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise mismanaged.²⁶

Whether hazardous waste is present at a facility must be determined with reference to the statutory language, EPA's RCRA regulations, 40 C.F.R. pt. 261, and appendices thereto.²⁷

* Release of Hazardous Waste. The term "release" is not defined in RCRA, the EPA RCRA regulations,²⁸ or the legislative history of § 3013.²⁹ On the other hand, a very comprehensive definition of the term "release" is presented in CERCLA, codified in the Solid Waste Disposal Act immediately following RCRA, and enacted by the same Congress that inserted § 3013 into RCRA in 1980. In CERCLA, "release" is defined as

any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment ….³⁰

If, by analogy, this definition were applied to § 3013 of RCRA, almost any movement of hazardous waste off the premises of a facility or site would constitute a release. Presumably, if the order is based upon the release of hazardous waste from a site (as opposed to the presence of hazardous waste at a site), there must be some proof of a connection between a site whose owner is the recipient of a § 3013 order and the presence of that same, or a chemically related, hazardous waste off-site. Thus, a clear pathway connecting on-site and off-site hazardous waste should be critical to the development of a § 3013 order. However, the establishment of an unassailable connection between on- and off-site hazardous waste is likely to be difficult, since it would have to be based upon knowledge of groundwater conditions in the vicinity of the site, which often will be what the § 3013 order is intended to determine. Thus, basing a § 3013 order upon a finding that the release of hazardous waste may present a substantial threat to human health or the environment may require EPA, on its own initiative, first to amass some empirical evidence of contamination from the site.

* "May Present A Substantial Hazard." The phrase "may present a substantial hazard," as used in § 3013, may be compared and contrasted to similar language in § 7003 of RCRA. Section 7003 is one of a series of "imminent hazard" provisions in federal environmental legislation.³¹ Section 7003 authorizes commencement of a civil action for injunctive relief in federal court:

[14 ELR 10206]

upon receipt of evidence that [hazardous waste] may present an imminent and substantial endangerment to health or the environment, [the EPA may bring suit on behalf of the United States.]³²

In addition to containing similar language, §§ 7003 and 3013 are also alike in that they may be applied to inactive, as well as operating, sites.

There are two apparent differences between the operative language authorizing EPA action pursuant to §§ 7003 and 3013. First, § 7003 requires the endangerment to be "imminent" as well as substantial, but § 3013 does not. The word "imminent" renders the standard of § 7003 more stringent with respect to the timing of the risk of harm: endangerment which is imminent should loom large in the near future.³³ Section 3013 may be utilized regardless of whether a hazardous waste site poses an "imminent" hazard, so long as the hazard is "substantial."

The other distinction between §§ 3013 and 7003 is that § 7003 triggers agency action when there may be a "substantial endangerment" of human health and the environment, while § 3013 authorizes action when there may be a "substantial hazard" to human health and the environment. This may be a distinction of no import, as EPA has adopted the approach that a substantial hazard may be identified with reference to the same factors as the existence of a substantial endangerment: "Whether a 'substantial hazard' exists involves consideration of some of the same factors as those used to determine whether an 'endangerment' exists under Section 7003."³⁴

The courts have interpreted the term "endanger" in a preventive or precautionary sense, holding that evidence of potential as well as actual harm may be deemed evidence of endangerment.³⁵ Indeed, both § 7003 and § 3013 are triggered by conditions that "may present" the requisite threat. EPA has succeeded in many cases in demonstrating the requisite standard of hazard under § 7003.³⁶ Thus, it should be sufficient for EPA to demonstrate the likelihood of a substantial hazard to justify the issuance of a § 3013 order. EPA need not demonstrate that a substantial hazard actually exists. Until a body of case law construing § 3013 develops, the reasonableness of EPA's interpretation of the substantial hazard language of § 3013 may be judged in reference to the pertinent judicial decisions under § 7003.

According to EPA, whether a hazard is substantial depends upon the relationship of a number of factors, such as the pathway of release of the hazardous waste or contaminants from the facility or site (i.e., ground or surface water, air, etc.), the characteristics and amount of the hazardous waste discharged, the current or future use of the portion of the environment affected, the potential for exposure to humans and the environment, and other related factors.³⁷ Whether a hazard is substantial thus depends on: (1) the quantity and toxicity of the hazardous waste released from the site; (2) the pathway travelled by the hazardous waste present at or released from the site; (3) the likelihood that humans will be exposed to the hazardous waste; and (4) the quality of the environmental resource exposed to the hazardous waste.

Negotiating the § 3013 Order on Consent

Structuring the Monitoring Proposal

The statute envisions the development of a § 3013 order as a three-step process. Initially, EPA directs the recipient to submit a monitoring proposal. When the proposal devised by the recipient is submitted to EPA, the Agency may modify the proposal as "reasonable to ascertain the nature and extent of the hazard."³⁸ Even if a recipient and EPA do not negotiate a consent order, § 3013 allows the recipient to make a substantial contribution to the drafting process. Thus, § 3013 contemplates that the recipient of the order can always significantly affect the scope of the monitoring.

The statutory scheme for developing a monitoring proposal pursuant to § 3013 contemplates that the recipient of a § 3013 order shall develop a proposal for monitoring; thereafter, that EPA may modify such proposal so long as the modifications are reasonable to determine the nature and extent of the hazard. However, as a practical matter, the three-step drafting process may not necessarily proceed so simply.

Although EPA has suggested that "the Initial Order should generally avoid being too specific in attempting to anticipate the details of the … monitoring program since the statutory procedure directs the owner/operator [14 ELR 10207] to prepare his own proposal,"³⁹ experience shows that these initial orders often are highly specific. Instead of commencing the process by merely directing the recipient to submit a monitoring proposal, EPA may prepare an initial order that contains pages of detailed monitoring requirements, including, for example, specific techniques for monitoring well construction, well development, precise location of wells, and number of all samples collected.

Under no circumstances is the recipient required to justify any variation from EPA's initial proposal. The imposition of such a burden is beyond EPA's statutory authority pursuant to § 3013. Thus, the recipient of the § 3013 order should not be intimidated by a highly specific order. Upon receipt of the EPA proposal, its monitoring requirements should be subjected to careful review. The monitoring proposal should be sufficient to ascertain the extent of the hazard, but it should not contain superfluous monitoring requirements.⁴⁰

Scrutiny of the Findings of Fact

Review of the § 3013 order's findings of fact and conclusions of law is a critical task. Unless EPA is able to allege a finding for each and every element of § 3013(a), there is insufficient basis for the issuance of a § 3013 order. All findings must be cautiously reviewed, because assent to, or failure to object to, findings may subsequently be deemed admissions against interest. The recipient of the order should not agree to any language in the § 3013 order that would tend to indicate that it is a party responsible for hazardous waste contamination.

For example, suppose the initial order provides, as a finding: "A private drinking water well downgradient from the Facility contains 1000 parts per billion of contaminant X." An order that contains such a finding should not be signed so as to preserve the opportunity to challenge subsequently the information upon which that finding is based. That opportunity might arise if the owner of the private drinking water well brings a private tort action against the recipient, or if the government sues the recipient for recoupment of cleanup or containment expenses. Similarly, each and every finding should be scrutinized and should not be retained unless absolutely essential to a negotiated agreement.

Under no circumstances should an order be signed that includes a finding based upon "the information gathered in the course of EPA's investigation and all other available information," without providing the recipient an opportunity to review and challenge that information. If EPA insists on the inclusion of such a finding, EPA should specify as much as possible about how the alleged concentration was ascertained. The finding should identify the party who was responsible for the sampling and analysis and the party who sampled the well, state the date or dates on which samples were collected, state the range of contaminants that was demonstrated by that sampling, and identify the laboratory that performed the analysis.

Alternatively, a simple finding that should satisfy EPA's need to allege a legal foundation for its order, while not unduly prejudicing a recipient, would be as follows:

On the basis of the information gathered in the course of EPA's investigation and all other available information, the presence of hazardous waste at the facility, and/or the release of hazardous waste from the facility may present a substantial hazard to human health or the environment within the meaning of § 3013 of RCRA.

Thus, there should be no expression of agreement to language that infers culpability. Preferably, the order should recite that it is intered into as part of a settlement or compromise; any language that does not reflect that the monitoring is a cooperative effort made out of desire to further the interests of the community should be deleted.

Negotiate for Concessions from EPA

If possible, the recipient of an order should attempt to elicit some concessions from EPA. For example, if EPA has been investigating contamination in a wide geographic area, the recipient may negotiate for access to any data, reports, or other information that EPA has amassed. Of particular interest in this regard would be any information relating to potential sources of contamination other than the recipient of the order.

Schedule of Performance and Reporting Requirements

In developing the initial monitoring proposal, the recipient will have the opportunity to select the timing of the requisite tasks and should carefully estimate exactly how much time it will take to complete each discrete monitoring step. The time needed to assemble technical reference manuals recited in the order, to analyze all samples, and to write and review any required reports all must be estimated. This is important because failure to adhere to a schedule may be deemed a breach of the order, and subject the recipient to enforcement action pursuant to § 3013(e). If possible, the respondent should negotiate for the inclusion of a force majeure clause in the order so that a delay in performance caused by circumstances beyond its control shall not be deemed a breach of the order.

EPA may seek to require the recipient to submit frequent progress reports. While reporting on progress is reasonable during the course of the order, the recipient should be wary of excessive demands for detailed reports. If a § 3013 order contains discrete tasks to be accomplished on a specific schedule, it is reasonable for EPA to require that it be notified upon completion of a task. However, it is not reasonable to require the periodic submission of detailed reports describing findings. A detailed report presenting data may be required at the conclusion of the monitoring.

Standard Provisions to Avoid

Typically, EPA will seek to insert certain standard paragraphs into § 3013 orders. Some of these may exceed EPA's statutory authority. Consequently, the recipient [14 ELR 10208] should be aware of certain common provisions, described below.

* Overly Broad Access Clause. A common provision in a § 3013 order provides as follows: "EPA and its designated representatives, including but not limited to EPA employees, agents, contractors and consultants, and including the EPA-designated on-scene coordinator, shall have the authority to enter and freely move about all property [of] recipient …." This paragraph is ultra vires. It should be revised so it is consistent with the inspection authority granted to EPA pursuant to § 3007(a).⁴¹

Similarly, another standard provision would authorize overly broad access to documents:

Respondent shall forthwith honor all such requests for access by EPA and its designated representatives, and also shall permit such persons to inspect and copy all records, documents and other writings, including all sampling and monitoring data even if such data is still in raw form, in any way pertaining to work undertaken pursuant to this order and to obtain representative samples of soil and groundwater for contaminant testing and evaluation.

Arguably, the language pertaining to the inspection and copying of "all records, documents and other writings … in any way pertaining to work undertaken pursuant to this order" is objectionable. Typically, a § 3013 order will require the recipient to prepare numerous reports, which include the raw data collected during the sampling required by the order. Thus, it should be sufficient for EPA to receive the requisite reports.Demanding immediate access to "all" records is an excessive and burdensome demand that should be resisted to the extent practical, within the bounds of the law.

* Business Confidentiality. EPA may seek to restrict the respondent's authority to designate documents produced pursuant to a § 3013 order as confidential, for business reasons. For example, EPA may insert a statement that "no sampling and monitoring data or hydrological or geological information shall be considered confidential."

The Freedom of Information Act allows the recipient to insulate information submitted to the federal government, on the ground that it is confidential commercial information.⁴² Much substantive and procedural protection is afforded to such information, and, therefore, it should not be freely waived.⁴³

* Chain of Custody. Another common paragraph would require the recipient to follow EPA's chain of custody procedures during data collection. It is inappropriate and unfair for EPA to direct the recipient of a purported enforcement investigation to collect data in accordance with EPA's chain of custody methods. While maintaining a chain of custody for real evidence is important if EPA intends to pursue further enforcement actions against the recipient, it seems pointless for EPA to require the recipient to follow EPA's chain of custody procedures. Rather, it would be more sensible to require the recipient to split samples with EPA, upon request.

* Stipulated Penalties. It is fairly routine enforcement practice for EPA to establish stipulated penalties for failure to adhere to any deadline established in a negotiated schedule of activities. If possible, a recipient should not agree to any stipulated penalties. Basically, the respondent's position should be that it will carry out some monitoring to define the contamination in the vicinity of its facility.

* Subsequent Enforcement Action. EPA may attempt to reserve the right to take "appropriate enforcement action," including the right to issue an order pursuant to § 3013(d).⁴⁴ Section 3013(d) empowers EPA to conduct monitoring to ascertain the nature and extent of hazardous waste contamination and then to seek recoupment for the expenses so incurred from a responsible owner or operator. The reservation of the right to take additional enforcement action, over and above the § 3013 order, is inappropriate and should be resisted. Both EPA and the recipient should develop a § 3013 order that constitutes an inclusive monitoring program. Any and all monitoring responsibilities that may be incumbent upon the recipient should be explicitly stated in the order. The recipient should not agree to allow EPA to reserve the right to conduct additional monitoring at the respondent's expense. As a practical matter, EPA may nonetheless pursue what it perceives as additional remedies.

Conclusion

Section 3013 orders may proliferate as EPA's hazardous waste enforcement efforts intensify. A § 3013 order differs from the traditional EPA administrative order because the activities ordered may involve sophisticated and costly environmental monitoring. The § 3013 order also can be issued without an imminent hazard, and thus has broader applicability than those possible under RCRA § 7003 and CERCLA § 106. Upon receipt of a § 3013 order, the recipient should carefully review its requirements from a legal and technical perspective. If the recipient agrees to conduct the monitoring, it should aggressively seize the opportunity to develop a monitoring proposal on its own terms. If the order arises out of an areawide EPA hazardous waste investigation, the recipient should negotiate for access to EPA's data pertaining to other sources in the region. In this fashion, § 3013 may assist EPA in defining the scope of hazardous waste contamination by shifting investigatory costs to the private sector without unduly prejudicing the legal rights of those private parties who undertake the monitoring.

1. 42 U.S.C. § 6934, ELR STAT. 41912.

2. RCRA § 3013(a), 42 U.S.C. § 6934(a), ELR STAT. 41912.

3. RCRA was amended by the Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, for the primary purpose of appropriating funds for EPA to carry out the purposes of the 1976 statute. In addition, according to legislative history, "the bill as reported contains several amendments which constitute refinements or minor modifications …. Several amendments with significant policy implications are included in the bill, however, to bring the implication of the Act closer to the original intent of the Congress." S. REP. NO. 172, 96th Cong., 2d Sess. 2, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 5019, 5020.

4. EPA might argue that the authority in § 3007 to require production of "information relating to such [hazardous] waste" and to "inspect … such wastes" is broad enough to encompass the entire waste disposal operation and its environmental effects, but that interpretation is by no means confirmed on the face of the statute.

4. See, e.g., § 114 of the Clean Air Act, 42 U.S.C. § 7404, ELR STAT. 42219; § 308 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1318, ELR STAT. 42130; § 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9604(e), ELR STAT. 41946.

6. 42 U.S.C. § 6927, ELR STAT. 41910.

7. Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, § 12(a)(3), 94 Stat. 2339 (1980). Arguably the "has handled" language in § 3007 extends it to inactive sites from which the wastes have been released. The counter argument could be made that, since the RCRA disposal regulations have been promulgated (40 C.F.R. pts. 264-265, ELR REG. 47345) and the site is outside the scope of RCRA enforcement, an investigation would not serve § 3007's purposes of assisting development of regulations and enforcing the Act. Section 3007 might be used in support of § 7003 (42 U.S.C. § 6973, ELR STAT. 41922) imminent hazard action at such a site. Indeed, § 7003 authorizes EPA to issue "such orders as may be necessary to protect public health and the environment," including, according to EPA, monitoring orders. See Memorandum from Douglas MacMillan, Acting Director, Office of Waste Programs Enforcement, EPA, to Enforcement Division Directors, Regions I-X, Re: Issuance of Administrative Orders under Section 7003 of the Resource Conservation and Recovery Act (Sept. 11, 1981), reprinted in [35 Current Developments] ENV'T REP. (BNA) 668 (1981). But see United States v. Northeastern Pharmaceutical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984) (RCRA § 7003 not applicable to inactive sites).

8. RCRA § 3013(b), 42 U.S.C. § 6934(b), ELR STAT. 41912.

9. 42 U.S.C. § 6927(a)(1) & (2), ELR STAT. 41910.

10. See RCRA §§ 3012, 3013, 42 U.S.C. §§ 6933, 6934, ELR STAT. 41912; see also H. CONF. REP. NO. 1444, 96th Cong., 2d Sess. 41-42, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 5019, 5041.

11. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

12. 42 U.S.C. § 9603, ELR STAT. 41944. CERCLA § 106, 42 U.S.C. § 9606, ELR STAT. 41947, gives EPA power, similar to but broader than that in RCRA § 7003, to abate imminent hazards and to issue orders necessary to achieve that end. See supra note 7. Unlike RCRA § 7003 there is no doubt that CERCLA § 106 applies to inactive sites. See United States v. Northeastern Pharmaceutical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984). Indeed, EPA has issued monitoring orders under § 106 of CERCLA and in some instances appears to view this tool as interchangeable with RCRA § 3013. See Memorandum from Lee M. Thomas, Acting Assistant Administrator for Solid Waste and Emergency Response, EPA, and Courtney M. Price, Special Counsel for Enforcement, EPA, to Regional Administrators, Regions I-X, Re: Use and Issuance of Administrative Orders Under § 106(a) of CERCLA (Sept. 8, 1983), reprinted in [41 Federal Laws] ENV'T REP. (BNA) 2931 (1983) [hereinafter cited as EPA Guidance on CERCLA § 106(a) Orders].

13. A lone published decision, consisting of findings of fact and conclusions of law, involves a challenge to a § 3013 order, In re an Order Pursuant to Section 3013(d) RCRA, 42 U.S.C. § 6934(d), 550 F. Supp. 1361, 13 ELR 20370 (W.D. Wash. 1982) (an ex parte administrative warrant authorizing EPA to enter a facility to conduct necessary testing and sampling, pursuant to §§ 3007 and 3013(d) of RCRA, 42 U.S.C. §§ 6927 and 6934(d), ELR STAT. 41910, 41912, is constitutional).

14. See RCRA § 3013(a), 42 U.S.C. § 6934(a), ELR STAT. 41912. In this Article, the phrase "hazardous waste facility" is used to refer generally to any facility or site at which hazardous waste is or has been stored, treated, disposed of, or otherwise exists.

15. CERCLA § 105, 42 U.S.C. § 9605, ELR STAT. 41946, requires EPA to develop a National Contingency Plan (NCP) for responding to problems of hazardous contamination. The NCP is published at 40 C.F.R. pt.300, ELR REG. 47401. It should be noted that RCRA uses the term "hazardous waste," whereas CERCLA uses the term "hazardous substances." The latter term encompasses the former. See CERCLA § 101(14), § 9601(14), ELR STAT. 41943.

16. CERCLA §§ 104, 107, 42 U.S.C. §§ 9604, 9607, ELR STAT. 41945, 41947.

17. As discussed supra, note 12, EPA may view its authority to issue administrative monitoring orders under CERCLA § 106 as substantially overlapping its § 3013 authority. However, as a practical matter, § 3013 orders will be available more frequently because they are predicated on finding a "substantial" hazard, not an "imminent and substantial" hazard. See also infra note 33.

18. Memorandum from Douglas MacMillan, Acting Director, Office of Waste Programs Enforcement, EPA, to Enforcement Division Directors, Regions I-X, Re: Issuance of Administrative Orders Under Section 3013 of the Resource Conservation and Recovery Act (Sept. 11, 1983), reprinted in [35 Current Developments] ENV'T REP. (BNA) 662 (1981) [hereinafter cited as EPA Guidance on § 3013 Orders].

19. Id. at 663.

20. 42 U.S.C. § 6934(e), ELR STAT. 41913.

21. 42 U.S.C. § 6934(d), ELR STAT. 41913; see also In re an Order Pursuant to Section 3013(d) RCRA, 42 U.S.C. § 6934(d), 550 F. Supp. 1361, 13 ELR 20370 (W.D. Wash. 1982).

22. For decisions allowing pre-enforcement review of EPA administrative orders, see, e.g., Hooker Chemical Co., Ruco Division v. EPA, 642 F.2d 48, 11 ELR 20084 (3d Cir. 1982); Conoco, Inc. v. Gardebring, 503 F. Supp. 49, 11 ELR 20497 (N.D. Ill. 1980); Ashland Oil, Inc. v. McDonald, No. C79-338 (N.D. Ohio 1980); Philadelphia Electric Co. v. Costle, No. 78-4170 (E.D. Pa. 1978). Holding to the contrary are Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885, 7 ELR 20415 (8th Cir. 1977); West Penn Power Co. v. Train, 522 F.2d 302, 5 ELR 20557 (3d Cir. 1975). EPA has acknowledged that recipients of administrative orders relating to hazardous waste contamination are likely to consider pre-enforcement review to stay the order's provisions. See EPA Guidance on CERCLA § 106(a) Orders, supra note 12.

23. 42 U.S.C. § 6934(a), ELR STAT. 41912.

24. 42 U.S.C. § 6934(b) & (d), ELR STAT. 41913.

25. EPA Guidance on § 3013 Orders, supra note 18, at 663.

26. RCRA § 1004(5), 42 U.S.C. § 6903(5), ELR STAT. 41903. See also 40 C.F.R. pts. 260-265. In these regulations, EPA has streamlined the identification of hazardous waste into a litmus test. A hazardous waste is any solid waste that: (a) exhibits one of the hazard characteristics defined in 40 C.F.R. pt. 261, subpt. C (ignitability, corrosivity, reactivity, or toxicity) and is not specifically exempted; or (b) is listed in 40 C.F.R. pt. 261, subpt. D.

27. For a discussion of the definition of "hazardous waste," see 45 Fed. Reg. 33066, 33095-96 (1980).

28. 40 C.F.R. pts. 260-265.

29. 1980 U.S. CODE CONG. & AD. NEWS 5019-46.

30. CERCLA § 101(22), 42 U.S.C. § 9601(22), ELR STAT. 41943.

31. For similar provisions in other federal environmental laws, see § 504(a) of the FWPCA, 33 U.S.C. § 1364(a), ELR STAT. 42147 ("imminent and substantial endangerment"); § 311(e) of the FWPCA, 33 U.S.C. § 1321(e), ELR STAT. 42134 ("imminent and substantial threat"); § 303(a) of the Clean Air Act, 42 U.S.C. § 7603(a), ELR STAT. 42256 ("imminent and substantial endangerment"); § 7 of the Toxic Substances Control Act, 15 U.S.C. § 2606, ELR STAT. 41343 ("unreasonable risk [posed by] an imminently hazardous chemical substance"); and § 106(a) of CERCLA, 42 U.S.C. § 9606(a), ELR STAT. 41947 ("imminent and substantial endangerment").

32. 42 U.S.C. § 6973(a), ELR STAT. 41922.

33. Much has been written about the meaning of "imminent" in § 7003. See, e.g., HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, 96TH CONG., 1ST SESS., HAZARDOUS WASTE DISPOSAL, 32 J. (Comm. Print 1980).

34. EPA Guidance on § 3013 Orders, supra note 18, at 663.

35. Perhaps the clearest statement of the meaning of the term "endanger" was presented in the leading case of Ethyl Corp. v. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir.), cert. denied, 426 U.S. 941 (1976), where Judge Wright emphasized the precautionary nature of the verb "will endanger":

case law and dictionary definition agree that endanger means something less than actual harm. When one is endangered, harm is threatened; no actual injury need ever occur. Thus, for example, a town may be "endangered" by a threatening plague or hurricane and yet emerge from the endangerment completely unscathed. A statute allowing for regulation in the face of danger is, necessarily, a precautionary statute.

Id. at 20, 6 ELR at 20272.

36. See, e.g., United States v. Price, 688 F.2d 204, 213-14, 12 ELR 21020, 21024 (3d Cir. 1982); United States v. Hardage, No. CIV-80-1013 (W.D. Okla. 1980) (holding that the standard of § 7003 is satisfied when released substances posed "a direct, if not immediate, threat to human health and the environment"); United States v. Outboard Marine Corp., 556 F. Supp. 54, 62, 12 ELR 21153, 21155 (N.D. Ill. 1982) (applying the parallel imminent and substantial endangerment language of CERCLA § 106(a)); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954, 20955-56 (D. Minn. 1982); United States v. Diamond Shamrock Corp., 12 ELR 20819, 20821 (N.D. Ohio May 29, 1981) ("environmental endangerment must be both imminent and substantial, concepts with rich judicial and statutory histories"); and United States v. Vertac Chemical Corp., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980).

37. EPA Guidance on § 3013 Orders, supra note 18, at 663-64.

38. RCRA § 3013(c), 42 U.S.C. § 6934(c), ELR STAT. 41913.

39. EPA Guidance on § 3013 Orders, supra note 18, at 664-65.

40. Technical decisions on the appropriate range of a monitoring proposal should be made by a qualified hydrogeologist. Reference may be made to the general groundwater monitoring requirements of 40 C.F.R. § 264.97 and other standard scientific reference works.

41. 42 U.S.C. § 6927(a), ELR STAT. 41910.

42. 5 U.S.C. § 552(b)(4), ELR STAT. 41015.

43. See, e.g., 40 C.F.R. pt. 2, subpt. B.

44. 42 U.S.C. § 6934(d), ELR STAT. 41913.