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4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1? WASHINGTON. D.C. 20460
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APR 4 1990
MEMORANDUM OFFICE OF
SOLID WASTE AND EMERGENCY RESPONE
SUBJECT: Clarification of Delegations of Authority 14-14-A,
14-14-B and 14-14-C under CERCLA
FROM: Bruce M. Diamond, Directo
Office of Waste Programs
Henry L. Longest II, Director
Office of Emergency and RemediaJI/l|p|f>onse
TO: Regional Administrators, Regions I-X
This-memorandum summarizes our past and future approach to
implementing Delegations of Authority 14-14-A, 14-14B and 14-14C
under the Comprehensive Environmental Response, Compensation and
Liability Act, as amended (CERCLA).
14—14—A — Determinations of JJlfflUJn^nt and Substantial Endanqerment
Delegation 14-14-A requires that the Regional Administrators
consult with the Director of the Office of Waste Programs
Enforcement (OWPE) before making determinations of imminent and
substantial endangerment. The Director of the Office of
Emergency and,Remedial Response (OERR) must -be notified when such
consultation occurs.
The assessment of imminent and substantial endangerment is
generally made during the remedial investigation process and the
process leading up to an Action Memorandum, and the finding is
made in the decision document itself. The consultation occurs
during the decision-making process and is therefore implicit in
the delegation process for RODs and Action Memoranda. A separate
consultation is not required for the determination of imminent
and substantial endangerment. All determinations of imminent and
substantial endangerment made prior to this date are deemed to
have met the consultation requirements.
In addition, Headquarters issued guidance on endangerment
assessments (OSWER Directive #9850.0, November 22, 1985) which
has been relied on by the Regions in making determinations of
imminent and substantial endangerment. This guidance has been
superceded by the Risk Assessment Guidance for Superfund, (EPA/1-
89/002, signed October 13, 1989). The new guidance is being
relied on for determinations made after October 13, 1989. Use of
these guidance documents is sufficient to constitute consultation
of OWPE and OERR.
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14-14-B - Administrative Actions Through Unilateral Orders
Delegation 14-14-B requires the Regional Administrators to
consult with the Director of OWPE on their administrative
actions, including, but not limited to, their issuance of
unilateral orders. The Director of OERR must be notified when
such consultation occurs.
The process for issuing Unilateral Administrative Orders
involves coordination with the Regional Coordinators of the
Compliance Branch of OWPE's CERCLA Enforcement Division. Issues
concerning the issuance of these unilateral orders are brought to
the Regional Coordinator's attention, and are elevated when
necessary.
This consultation also takes place during monthly phone
calls with the Regions in which they discuss negotiations,
candidate sites -nd activities associated with issuing unilateral
orders. It also takes place in the yearly strategy consultations
which have culminated in a fiscal year 1989 and 1990 written
strategy for issuance of Unilateral Adminstrative Orders for
RD/RA.
In the future, we will continue the general process. As in
the past, memoranda and conversations on actions at specific
sites are not necessary. A separate consultation is required,
however, for decisions not to issue a Unilateral Administrative
Order for RD/RA (see "Use of CERCLA Section 106 Unilateral
Enforcement for Remedial Design and Remedial Action: Strategy for
Fiscal Year 1990", OSWER Directive f 9870.1A,.February 14, 1990),
and for $2 million exemption requests.
The consultation requirement with OWPE has been met for all
Unilateral Administrative Orders for actions issued prior to this
date, and is waived for future unilateral orders, except as
mentioned Above.
14—14—C — Administrative Actions Through Consent Orders
Under delegation 14-14-C, the Regional Administrators must
consult with the Director of OWPE on their administrative
actions, including but not limited to, the issuance of
Administrative Orders on Consent (except for RI/FS orders issued
under 104. See memorandum from J. Winston Porter of March 16,
1987). Such advance concurrence can be waived by memorandum.
The authority to nonconcur on the issuance of an Administrative
Order on Consent, however, is retained by the Assistant
Administrator of OSWER.
The process for issuing Administrative Orders on Consent for
removal actions has involved general coordination with the
Regional coordinators of the Compliance Branch of OWPE *s CERCLA
Enforcement Division. Issues concerning the issuance of these
Administrative Orders on Consent are brought to the Regional
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Coordinator's attention, and are elevated when necessary. End of
ear summaries are prepared detailing the issuance of
dministrative Orders on Consent for removal actions. This
ethod of consultation is sufficient to constitute consultation
ith the Director of OWPE for concurrence. The consultation
equirement with OWPE has been met for all Administrative Orders
n Consent for removal actions issued prior to this date, and is
aived for all future issuance of Administrative Orders on
onsent.
c: Waste Management Division Directors, Region I-X
Environmental Services Division Directors,
Regions I, VI, VII
Lisa Friedman, OGC
Glenn Unterberger, OECM
Russ Wyer, OERR
Hans Crump,. OERR
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