Unit«d States
            Environmental Protection
            Agency
              Office of
              Solid Waste and
              Emergency flesoonse
 &EPA
DIRECTIVE NUMBER:  9012.10-a

TITLE: Revision of CERCLA Civil Judicial Settlement
    Authorities  Under Delegations 14-13 B and 14-14 E
            APPROVAL DATE:

            EFFECTIVE DATE:

            ORIGINATING OFFICE: OWPE

            El FINAL

            D DRAFT

              LEVEL OF DRAFT

                03 A — Signed by AA or DAA
                O 8 — Signed by Office Director
                D C —Review & Comment

            REFERENCE (other documents):
S WER       OS \NER       OS WER
  DIRECTIVE    DIRECTIVE    Dl

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                             United States Environmental Protection Agency
      _0,CDA                     Washington. DC 20460
      «>crM   OSWER Directive  Initiation Request
                                   2. Originator Information
      Name of Contact Person
           Bev  Dishner
     'Mail Code     .Office                ;Taleonor.e Coae
     ! WH-527     i Compliance Br./OWPE'  382-4819
      3. Title
        Revision of CERCLA Civil Judicial Settlement Authories Under Delegations  14-13-8 and

        14-14-E
      4. Summary of Directive (tncuce onef statement of purpose)

          Implements  revisions to the  consultation and concurrence requirements of the civil
          judicial  settlement delegations.                               y
      5. Keywords
          Delegations,  settlement delegations, civil judicial delegations,  CERCLA settlements'
      6a. Does This Directive Supersede Previous Oirective(S)?    T
       b. Does It Supplement Previous Oirective(s)?
                                              No
                                              No
                       Yes   What directive (number, title)
Yes
ial directive (number, .title]  9012.10   ,
^delegation or  authority Unaer
:RCLA & SARA dtd  5/25/88
                            Wh
                            Re
                            CERCLA
      7. Oratt Level
           A - Signed by AA/DAA
9 - Signed by Office Director
 C - For Review 4 Comment
                0 - In Development
8. Document to be distributed to States by Headquarters?


Yea
Y

No
      This Request Meets OSWER Directives System Pormat Sjandards.
      9. Signature of Lead Office Directives Coordinator
                                     Date
      fOxName and_Jitle of Appro«iprg Official
        ^
      EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
   OSWER           OSWER                OSWER               O
VE     DIRECTIVE          DIRECTIVE         DIRECTIVE

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\        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY    OSWER DIRECTIVE
                              JUN  | T 1988
 MEMORANDUM

 SUBJECT:  Revision of CERCLA Civil Judicial Settlement
           Authorities Under Delegations 14-13-B and 14-14-E
                      - ^^  W.
 FROM:     Thomas L. Adams, Jr., Assisant Administrator
           Office, of Enforcment and Cbjjqaliance Monitoring
                   .
           J. Winston Porter, Assistant Administrator
           Office of Solid Waste and Emergency Response

 TO:       Regional Administrators
           Region I-X

      This memorandum implements certain revisions to the
 concurrence and consultation requirements of the civil judicial
 settlement delegations which are designed to streamline the
 enforcement process and help achieve agency remedial action and
 cost recovery goals.  These revisions provide significantly
 expanded Regional authority to approve CERCLA settlements on
 behalf of the Agency.  In general, the revised delegations are
 divided into four types: (1) authorities fully delegated now,  (2)
 authorities delegated with Headquarter ' s consultation, (3)
 authorities delegated after a certain level of Regional
 experience is met and (4) authorities to be reviewed for future
 delegation.  We expect that these revised delegations will
 facilitate the settlement process, thereby increasing
 settlements and private party response activity.

      The delegations promulgated on September 13, 1987 to reflect
 the Superfund Amendments and Reauthorization Act of 1986  (SARA)
 changes to the Comprehensive Environmental Response,
 Compensation, and Liability Act (CERCLA) ,  delegated, among other
 things, certain settlement authorities to the Regional
 Administrators (RAs) .  Under Delegation 14-13-B, Concurrence in
 Settlement of Civil Judicial Action, RAs were given the authority
 to exercise Agency concurrence in the settlement of civil
 judicial enforcement actions under CERCLA, as amended, and to
 request the Attorney General to amend a consent decree issued
 under CERCLA.  However,  such authority was limited to CERCLA
 §104/107 cost recovery actions seeking $500,000 or less.   For all
 other civil judicial settlements,  the Region was required to

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                                             OSWER DIRECTIVE
                                             No. 9012.10-a
                               -2-
obtain concurrence of the Assistant Administrator  (AA) for the
Office of Enforcement and Compliance Monitoring  (OECM) and the AA
for the Office of Solid Waste and Emergency Response  (OSWER) or
their designees.  Under Delegation 14-14-E, De Minimis
Settlements. RAs were given the authority to enter into de
minimis settlements, under §122(g) of CERCLA.  Again, however,
RAs were required to obtain the advance concurrence of the AAs
for OECM and OSWER before exercising such authority.

     The "Limitations" Sections of Delegations 14-13-B and 14-
14-E provide for six month review by Headquarters of Regional
performance in settlement'of civil judicial actions, and based
on that review, consideration of waiving or modifying any advance
Headquarters concurrence requirement on a Region by Region basis.
We have now determined that the limitations section of the
original delegation concerning our concurrences should be
modified by this memorandum; the Headquarters consultation and
concurrence authorities retained by the AA for OECM and OSWER in
Delegations 14-13-B and 14-14-14-E are waived as follows:

          A. Complete Waiver of Concurrence Requirements:
             No Concurrence or Consultation Required

          1.   §106 RD/RA settlements where response costs do not
               exceed $30 million (except where consultation or
               concurrence is required by B.3. or D.3. below).
          2.   §107 settlements where total claims do not
               exceed $30 million (Except where consultation or
               concurrence is required by B.3. or D.3. below).
          3.   All settlements for RI/FS (except where
               consultation or concurrence is required pursuant
               to B.3. or D.3. below).
          4. -  Settlements involving judicial civil penalties
               assessed under §109 or §104.

          B.   Delegated to Regional Administrators with
               Consultation

          1.   §106 RD/RA settlements where response costs are
               between $30 and $60 million (except where
               concurrence is required by D.3. below).
          2.   §107 settlements where total claims are between
               $30 and $60 million (except where concurrence is
               required by D.3. below).

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                                        OSWER DIRECTIVE
                                        No. 9012. 10-a
                         -3-

     3.   Settlements which compromise greater than 25% and
          less" 'than 50% of the total past and future costs,
          and mixed funding settlements which require
          greater than 25% and less than 50% contribution by
          the U.S., where such compromise or contribution
          exceeds $2.0 million (except where concurrence is
          required by D.3. below).

C.   Delegate Upon Attainment of Specific Experience. Level

     1.   Settlements involving violations of §103
          Reportable Quantities (first -case in each Region
          not delegated; additional cases fully delegated) .
     2.   §122 (g) (1) (A) de minimis settlements with
          generators (concurrence required for first case  in
          each Region; additional cases delegated with
          Headquarters consultation retained) .
     3.   §122 (g) (1) (B) de minimis settlements with
          landowners (concurrence required for first case- in
          each Region; additional cases delegated with
          Headquarters consultation retained) .

D.   Settlement Authorities To Be Reviewed in the Future
     (Concurrence Retained)

     1.   §106 RD/RA settlements where response costs
          exceed $60 million.
     2.   §107 settlements where total past and future costs
          exceed $60 million.
     3.   Settlements which compromise greater than 50% of
          the total past and future costs, and mixed funding
        .  settlements which require a 50% or more of total
          past and future costs or greater than $2.0
          million contribution by the U.S.
     4.   Multi-Regional or nationally-managed cases,
          including bankruptcies.
     5.   Settlements based upon extraordinary circumstances
          which purport to grant covenants not to sue
          without limitations as to future liability (§122
     6.   Precedent setting cases (e.g., certain
          municipalities as generators, dioxin, substantial
     ^    deviations from Agency policy) .
     7.   Settlements involving §122(f)(2) special
          covenants not to sue.

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                                             OSWER DIRECTIVE
                                             No.  9012.10-a
                               -4-

     The formal redelegation package signed by the Assistant
Administrator-OSWER on May 25, 1988 remains effective subject to
this redelegation.  Procedures to implement the revised
settlement authorities are being drafted.  If you have any
questions please have your staff contact the OECM attorney or
OWPE coordinator.

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SERA
           Unn«d
           Environment*! Protection
           Agency
                ot
              Solid W«(i« «nd
                   fl««pon«e
DIRECTIVE NUMBER:  ; 90i2.lOa
            TITLE:
      Revision of CERCLA-Judicial Settlement      .
      Authorities Under Delegations 14-13 B and 14-14 E
            APPROVAL DATE:  06/17/88

            EFFECTIVE DATE:  06/17/88

            ORIGINATING OFFICE:   OWPE
            S FINAL

            D DRAFT

             STATUS:
            REFERENCE (other documents):
             [ x .]  A- Pending OMB -approval
             [  ]  B- Pending AA-OSWER approval
             [  ]  C- For review &/or comment
             [  ]  D- In development or circulating

                            headquarters
  DIRECTIVE    DIRECTIVE    L

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