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 ------- 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 ------- \ 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 ------- 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). ------- 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. ------- 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. ------- 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 ------- |