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Directive Initiation Request
. Oiraefrt Number
9870.1A'
3. OHqtnator Information
Mai Coda
OS-510
Offic*
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T«t«pfton« Cod*
382-7790
Use of CERCLA Section 1O6 Unilateral Enforcement for
Remedial Design and Remedial Action: Strategy for Fiscal
Year 199O
4. Summary of opMSvegnauaa onaf sutamant o( purposa)
Dascribes FY90 strategy for enhancing use of CERCL\ Section 106
authorities, focusing significantly on UAOs for RD/RA
5. KtywortU
Unilateral Administrative Orders (UAOs); CERCIA Section 106: RD/RA
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EPA Form 131*-17 (Raw. S-«7) Pravioua oditena art obaol«u.
FEB I 4 1990
OSWER 4 OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
~
FEB I A 1990
Directive Number 9870.1A
MEMORANDUM
SUBJECT:
FROM:
Use of CERCLA Section 106 Unilateral Enforcement for
Remedial Design and Remedial Action: Strategy for Fiscal
Year 1990
Don R. Clay, Assistant Administrator
Office of Solid Waste and Emergency Response
TO:
James M. Strock, Assistant
Office of Enforcement and Compl i
Regional Administrators, Regions I - X
BACKGROUND AND PURPOSE
The Administrator's Management Review of Superfund emphasizes
that the timely, routine and predictable use of unilateral
administrative orders (UAOs) in the CERCLA enforcement process
should help bring negotiations to a successful conclusion. The
Review also views the timely use of UAOs, and subsequent judicial
enforcement (through injunctive actions), as an integral component
of the CERCLA cleanup process either prior to or as an alternative
to proceeding with Fund-financed response1.
The purpose of this memorandum is to describe a Fiscal Year
1990 strategy for enhancing the use of CERCLA Section 106
enforcement authorities, focusing on unilateral administrative
orders for remedial design and remedial action (RD/RA), consistent
with the Administrator's Management Review of Superfund. The
Agency firmly believes that a credible CERCLA Section 106
enforcement program which provides strong incentives for PRP-
conducted RD/RAs can be maintained through the use of and adherence
to this strategy.
For a complete description of the recommendation for use
of Section 106 enforcement authorities for RD/RA, see Chapter II
of "A Management Review of the Superfund Program," June 1989,
William K. Reilly, Administrator, U.S. EPA.
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FISCAL YB3iiX990 NUMERICAL PROGRAM GOALS
The fluency's strategy for unilateral enforcement presumes
generally that where there are viable PRPs, EPA will issue a UAO
in the absence of a timely settlement agreement. As discussed
during SCAP negotiations, approximately 37 sites were identified
as candidates for UAOs in FY90. That number should be viewed as
a minimum, because the entire thrust of this strategy is to make
use of UAOs the preferred and predictable option whenever
settlements are not achieved in a timely manner at candidate sites.
In certain unusual situations, the Region may decide not to issue
a UAO at a candidate site despite lack of settlement. For example,
the necessary statutory requirements for unilateral enforcement may
not be met, or strong policy considerations may exist for not
issuing a UAO at a particular site. In all instances where orders
are not issued, the Region is expected to issue a UAO at an
appropriate alternate site, if one exists, in order to meet its
annual target. Annual targets reflect minimum expectations. UAOs
should be issued at all sites where appropriate.
We further expect that all Regions will take the necessary
steps to follow up with judicial referrals wherever appropriate.
Section 106 judicial enforcement can help in maintaining or
increasing the pace of cleanups, particularly if there are sites
that are not likely to receive funding due to limited RA funds.
Judicial actions also help ensure that UAOs are taken seriously by
PRPs. As noted in the Administrator's Management Review of
Superfund, we will factor in these considerations when addressing
individual cases where PRPs fail to comply with a UAO.
To report accomplishments in this area, we will continue to
rely on CERCLIS. The Region must continue to make sure that these
accomplishments are properly and routinely entered in CERCLIS.
Headquarters has prepared and will issue quarterly standard reports
for tracking and communicating enforcement results under this
strategy. These reports will track the following items in FY90:
o For RD/RAs, number of settlements forwarded to DOJ;
number of UAOs issued; number of unilateral Section 106
referrals; percentage of new starts by PRPs; dollar value
of PRP commitments; and number of negotiations meeting
and exceeding planned timeframes.
o For removals, number of administrative orders (unilateral
and on consent); number of unilateral Section 106
referrals; and dollar value of PRP commitments.
In addition, Headquarters will continue to use monthly conference
calls with the Regions for tracking progress of RD/RA settlement
negotiations and unilateral enforcement.
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3
SECTION 106 UNILATERAL ENFORCEMENT
This Section outlines procedures the Region should follow for
unilateral ^enforcement under Section 106 of CERCLA during FY90.
EPA will make every effort to pursue unilateral enforcement in a
timely manner, as consistent as possible with the goals set out in
the forthcoming "Integrated Superfund Timeline."
Early Planning and Communication of the Use of UAOs for RD/RA
During FY90, the Region should employ two valuable tools in
ensuring early planning for RD/RAs: site management plans and pre-
referral litigation reports. The use of these planning tools
should help quicken the pace of achieving settlements. To the
extent that settlement cannot be reached in a timely manner,
advance planning should assure satisfactory progress of cases to
unilateral enforcement. Therefore, a site management plan coupled
with the information in a pre-referral litigation report developed
for each site with viable PRPs (regardless of whether a FY90
candidate for a UAO) should clearly articulate whether and when a
UAO will be issued and any factors that may prevent the site from
being a candidate for a UAO. At sites with viable PRPs a planning
goal should be to issue special notice by the signature of the
Record of Decision (ROD). At a minimum, the Region should be
prepared to issue a UAO if the PRPs fail to provide a good faith
settlement offer by the end of the first 60 days of the special
notice moratorium, or if it is clear that no settlement will be
achieved in the negotiation timeframe allowed. In addition, unless
an extension of the negotiation period beyond the 120 day
moratorium is justified by an agreement in principle and
substantial progress in finalizing a consent decree, a planning
goal should be to issue a UAO promptly after the 120 day moratorium
expires. Special attention should also be given to how the Region
will proceed in the event that there is non-compliance with the
UAO.
Site management plans and pre-referral litigation reports will
be routinely developed by the Regional Waste Management Division
in conjunction with Office of Regional Counsel. It is critical
that Regional Counsel be involved in a timely manner and focus
specifically on the strategy for issuing and following up on UAOs.
The Region should not issue a UAO until the site is thoroughly
discussed with Regional Counsel, especially regarding whether all
statutory requirements will be met as outlined in the forthcoming
"Guidance on CERCLA Section 106 (a) Unilateral Administrative Orders
for Remedial Designs and Remedial Actions."
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RAs Planned for Initiation in FY 90
In FY90, a number of sites may have a Fund-financed RD
completed where Fund monies for the RA may not be available.
Headquarters has therefore conducted an RA Prioritization for FY90.
Because it is extremely important to fully use our limited FY90 RA
funds and to avoid having unfunded sites that lack viable PRPs,
the Office of Waste Programs Enforcement (OWPE) and Office of
Emergency and Remedial Response (OERR) conducted Regional
conference calls during December 1989 to identify enforcement
issues that may affect Fund-financing of sites queued by the
Regions. The discussions from the conference calls will continue
to be refined.
Review of Sites With Ongoing Fund-financed RDs not Scheduled for
RA Initiation in FY 90
There are a number of sites with an ongoing Fund-financed RD
not scheduled for Fund-financed RA initiation in FY90 (e.g. some
FY87 or FY88 RODs). If these sites were not subject to a UAO prior-
to Fund-financing the RD, the Region should re-evaluate them for
possible issuance of a UAO for the RA. To assist in this re-
evaluation, the Region should complete any necessary additional
case development (such as additional PRP search) prior to the
completion of the RD. For sites where PRPs are identified as a
result of a supplemental search, the Region should issue general
notice, or a letter pursuant to Section 122(a) waiving special
notice where appropriate, prior to issuing a UAO. For sites where
PRPs were previously noticed and upon re-evaluation meet the
criteria for issuing UAOs, a UAO should be issued for the RA. It
is usually not appropriate for additional negotiations to occur if
the PRPs declined to settle in previous negotiations for RD/RA.
The only exception may arise where such negotiations will not cause
delay and are clearly in the best interest of the government.
However, the Region may advise PRPs, by letter, of relevant design
documents and the possibility of a UAO as the Region begins
preparation of the order. This may provide the PRPs with an
additional incentive to settle with the Agency. However, it should
not be intended as an opportunity to negotiate the UAO.
Consultation on RD Starts Planned for FY90 Where a UAO May Not Be
Issued
Most sites where a ROD has been signed and the RD has not
begun (e.g., some FY88 and most FY89 RODs) should be resolved in
a timely manner through a consent decree or should be addressed by
a UAO. To this end, careful consideration should be given to the
special notice procedures as discussed in the forthcoming "Guidance
on CERCLA Section 106(a) Unilateral Administrative Orders for
Remedia-1 Designs and Remedial Actions." However, at some sites no
viable PRPs can be found or there may be a limited number of sites
where statutory requirements may not be met or strong policy
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consideratg|ais may exist for not issuing UAOs. At sites with RO
planned fi|iffY90 and no anticipated UAO, a consultation process
between HSpdguarters and the Region must occur prior to Fund-
financing the RD. The Region should notify Headquarters in writing
at least two weeks prior to obligation of funds with the reasons
for not proceeding with a UAO. The written explanation, which
should be stamped "FOIA Exempt - Enforcement Sensitive
Deliberative Process," should describe the reasons for not going
forward with a UAO. These should be based on available information
and should not preclude additional case development (e.g.,
liability). The written explanation should come from the Regional
Waste Management Division Director (after consultation with the
Office of Regional Counsel) to the Director, OWPE. The Region
should also send a copy to the Associate Enforcement Counsel, OECM-
Waste. Headquarters will also routinely notify DOJ's Environmental
Enforcement Section.
OWPE's Compliance Branch of the CERCIA Enforcement Division,
after consultation with OECM-Waste, will respond orally to the
Regional Waste Management Division prior to the date for obligation
of funds as to whether any problems or issues exist that need to
be addressed. However, Fund-financing of the RD will not be
delayed if Headquarters does not orally respond to a Region (which
has provided timely written notice) prior to the date of obligation
of funds. To assure proper closure of the consultation process,
the oral response will be followed up with a short memorandum from
the appropriate Section Chief in OWPE's Compliance Branch to the
appropriate Regional Section Chief verifying that the consultation
was completed (with a cc to the Regional Branch Chief and Division
Director). Again, the Region can proceed with Fund-financing prior
to receipt of the closeout memorandum. OERR and OECM-Waste will
also receive a copy for their information.
If the Compliance Branch, in consultation with OECM-Waste,
disagrees with the Region's decision, expedited resolution of any
problems or issues will be sought through conference call at the
Section Chief level (and promptly elevated if necessary) prior to
the date of obligation of funds. It is anticipated that the
regular communication that takes place between Headquarters
Regional Coordinators and Regional Project Managers (and their
Headquarters and Regional legal counterparts), and advance
discussion of sites during the monthly conference calls of sites
in the queue for RD, will limit the number of cases where such
conference calls may be necessary.
Notification to Headquarters of Non-Compliance With a UAO
Situations will arise where PRPs do not comply with a UAO.
In these cases, enforcement of the order via a Section 106 judicial
referral for injunctive relief and penalties should be considered
by the Region. In other situations, Fund-financing, followed by
judicial referral for Section 107 cost recovery and, wherever
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possible^wgnalties 'and treble damages, may be appropriate. The
Region s8$iid consider the factors outlined in the "Guidance on
CERCLA Si|iibn 106 Judicial Actions," February 24, 1989 (OSWER
Directive? Huinber 9835.7), availability of Fund monies for the RA,
and the benefits of establishing credibility in EPA's ability and
willingness to use the Section 106 judicial enforcement mechanism
to determine which approach would be the most appropriate. Either
action should take place on a timetable consistent with the goals
in the forthcoming "Integrated Superfund Timeline."
If the decision is made to proceed with Fund-financing of the
RD and/or RA, OWPE and OECM-Waste must be informed of the decision
at least ten days prior to obligation of funds to allow for any
needed consultation. The Region will be expected to vigorously
pursue cost recovery, and include a demand for all costs and seek
treble damages and penalties unless such demand would be manifestly
inappropriate. The notification sent to Headquarters must include
the Region's timetable for such cost recovery action.
CONCLUSION
The aggressive use of unilateral enforcement will continue to
be an essential component of a successful Superfund program .
EPA's evolving "enforcement first" philosophy as embodied in the
Administrator's Management Review of Superfund contemplates a
significantly broadened use of these legal authorities. The timely
use of these powerful enforcement tools should be focused through
careful consideration of the requirements, criteria and other
factors pertinent to their use.
If your staff has any questions on the strategy, please call
Tony Diecidue of the Compliance Branch, OWPE (FTS-382-7790) or Pat
Winfrey of the CERCLA Response Policy and Litigation Branch, OECM-
Waste (FTS-382-2860). Any questions related to the coding of
information in CERCLIS should be directed to Jerry Lappan of the
Compliance Branch (FTS-475-8259).
cc: Deputy Regional Administrators, Regions I - X
Regional Counsels, Regions I - X
Directors, Waste Management Division
Region* I, IV, V, VII and VIII
Directors/ Hazardous Waste Management Division
Regions III and VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxics and Waste Management Division
Region IX
See Appendix for a list of other key FY90 activities
related to Section 106 unilateral enforcement.
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Regional CERCLA Enforcement Branch Chiefs
Office of Regional Counsel RCRA/CERCLA Branch Chiefs
Regional CERCLA IMCs
Henry Longest, OERR
David Buente, DOJ
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APPENDIX
OTHER KEY FISCAL YEAR 1990 ACTIVITIES
^RELATED TO SECTION 106 UNILATERAL ENFORCEMENT
Consistent with the Administrator's Management Review of
Superfund, Headquarters is working on a number of projects that
will enhance the timely and effective use of the CERCLA Section
106 enforcement authorities. These projects will all provide
significant opportunity for Regional participation, including the
following:
1. Integrated Superfund Timeline: EPA will issue a timeline
defining ideal timeframes to use as goals for conducting
activities necessary to move a Superfund site through the
remedial response pipeline, including timeframes for
employing CERCLA Section 106 enforcement authorities.
2. Guidance on Using Unilateral Administrative Orders (UAOs);
EPA will issue a final guidance on considerations pertinent
to using UAOs to require performance of the remedial design .
and remedial action (RD/RA) by PRPs. This will include a
Model RD/RA UAO.
3. Model RD/RA Consent Decree (CD); EPA and DOJ will issue a
Model RD/RA CD which the United States will use as a
guideline for defining acceptable terms for RD/RA
settlements.
4. Strategy for Tracking and Pursuing Non-Settlors: EPA will
issue a refined strategy for pursuing non-settlors to help
reinforce incentives for early settlements. The strategy
will include development of a refined management information
system for tracking non-settlors and their enforcement
status.
5. System for Tracking Administrative Order (AO) and CD Non-
Compliance; EPA will issue guidance and provide assistance
for the establishment of systems for tracking RD/RA AO and
CD non-compliance and follow-up enforcement to ensure that
PRPs are following through on response actions as required
in these legally enforceable documents.
6. Guidance on Enforcing RD/RA UAOs: EPA will issue guidance
on initiating and settling cases to enforce RD/RA UAO
requirements, including the use of civil penalty and
punitive damage authorities, so as to help deter UAO
violations.
7. Special Litigation Support; EPA will issue a strategy for
providing "special litigation support," possibly in the form
of dollars or FTE, to help meet the special resource demands
of CERCLA Section 106 unilateral enforcement.
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8. Communications Strategy: EPA will complete a strategy for
communicating to the public and specific constituency groups
at the national level information on key CERCLA Section 106
enforcement plans and accomplishments. This will help
support reasonable public expectations and evaluation of
these accomplishments, and reinforce enforcement themes for
the PRP community.
Consistent with the Deputy Administrator's charge to the
Superfund Management Review's Steering Committee, we request that
you take whatever initiative you can to pursue appropriate
enforcement activities in these identified areas even in advance
of forthcoming national direction.
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