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       4        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
       1?                   WASHINGTON. D.C. 20460
    -t*
                              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superceded by the Risk  Assessment Guidance for Superfund, (EPA/1-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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