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
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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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