\	UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
isUJ

MAR 7 I99H
OSWER Directive Number 9833.O-la
MEMORANDUM
SUBJECT: Guidance on CERCLA Section 106(a) Unilateral
Administrative Orders for Remedial Designs and Remedial
Actions
'"VA-Xa*-^ O- •
FROM: .Don R. Clay, Assistant Administrator
/Y~Office of Solid Waste and Emergency Response
James M. Strock, Assistant Administrator _
-Office of Enforcement and Compliance Monitoring
TO:	Regional Administrators,
Regions I-X
I. Introduction
This memorandum sets forth general principles governing the
Agency's unilateral administrative order authority for remedial
designs and remedial actions under section 106(a) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (CERCLA or Superfund).1 Policies and
procedures to be followed when issuing unilateral orders for
remedial actions are provided.
The memorandum has the following sections:
o Introduction
o The Role of Unilateral Orders in the CERCLA Remedial
Process
This memorandum fend the forthcoming memorandum entitled
"Guidance on the Issuance of CERCLA Section 106(a) Administrative
Orders for Removal Actions," together supersede the September 8,
1983 "Guidance Memorandum on Use and Issuance of Administrative
Orders under S106(a) of CERCLA" (OSWER Directive number 9833.0)
and the February 21, 1984 guidance on "Issuance of Administrative
Orders for Immediate Removal Actions" (OSWER Directive number
9833.1A). Changes to the guidances are the result of statutory
amendments and evaluation of Agency experience.

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OSWER Directive Number 983 3.0-la
o Legal Aspects of Section 106 Orders for Remedial
Design/Remedial Action
-	Background Information about Section 106
Authorities
-	Statutory Requirements of Section 106
Administrative Orders
-	Judicial Review of Unilateral
Orders
o Possible Recipients of Unilateral Orders
o Case Specific Considerations
-	Decision Whether to Issue an Order
-	Determining the Identity of the Respondents
o Elements of Unilateral Orders
o Modification of Unilateral Orders
o Procedures Relating to Issuing Unilateral Orders
-	special Notice Procedures
-	The Conference
o Specialized Forms and Use of Unilateral Orders
o .Continued Negotiation After Issuance of an Order
o Noncompliance with Unilateral Orders
o Note on Purpose and Use of this Memorandum
Appendix A defines section 106 unilateral and consent
orders, and their judicial counterparts.
This memorandum applies to all CERCLA section 106 unilateral
orders, issued to compel Potentially Responsible Parties (PRPs)
to conduct remedial designs and remedial actions. For a
discussion of settlement principles relevant to remedial actions,
see the "Interim CERCLA Settlement Policy," dated December 5,
1984 (OSWER Directive number 9835.0), also published at 50 FR
5034, February 5, 1985). A guidance on the issuance of CERCLA
§106(a) administrative orders for removal actions is under
development.
^his guidance does not specifically address CERCLA remedial
action at Federal facilities. See the "Federal Facility
Compliance StrategyM (Office of External Affairs, November 1988)
for information about CERCLA enforcement actions against Federal
facilities, and the "Federal Facilities Negotiation Policy,"
(OSWER, August 1989).
sFor information on CERCLA enforcement practices relating to
municipalities, see the "Interim Policy on CERCLA Settlements
Involving Municipalities and Municipal Wastes," (December 6,
1989) (OSWER Directive number 9834.13).
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OSWER Directive Number 9833.O-la
II. The Role Of Qnilateral Orders In the CERCIA Remedial Program
An objective of Superfund enforcement is to place ultimate
responsibility for the costs of cleaning up Superfund sites on
those who contributed to the problem. EPA prefers to obtain
private-party response action through the negotiation of
settlement agreements with parties willing to do the work.
When viable private parties exist and are not willing to reach a
timely settlement to undertake work under a consent order or
decree, or prior to settlement discussions in appropriate
circumstances, the Agency typically will compel private-party
response through unilateral orders. If the PRPs do not comply
with the order, EPA may fund the response or may refer the case
for judicial action to compel performance and recover penalties.
Unilateral orders should be considered as one of the
primary enforcement tools to obtain RD/RA response by PRPs.
Unilateral orders can provide an incentive for PRPs to settle,
can help to control settlement negotiation deadlines, and can be
used to force commencement of wor-< at the site when settlement.
cannot be reached. Unilateral orders can also help to encourage
the organization and coalescence of disorganized PRPs. Because
many PRPs promptly comply with unilateral orders, they also help
to conserve the limited funds available for government-financed
cleanup.
If PRPs do not comply with unilateral orders, the Agency has
the flexibility to determine whether to perform a Fund-financed
cleanup and seek to recover those costs from the PRPs through a
judicial referral for cost recovery, punitive damages4, and
penalties. The Agency also may prepare a referral for judicial
enforcement action pursuant to section 106, to compel compliance
and to exact penalties. Regardless of the route the Agency
chooses to take upon noncompliance with a unilateral order, PRPs
remain potentially liable for the response action. Federal
courts can compel PRPs to conduct the response action and impose
penalties. If the Agency chooses to clean up the site with the
Fund, at a minimum the PRPs will be potentially liable for cost
recovery of the funds expended. In addition, Federal courts can
*CERCLA 1107(c)(3) authorizes punitive damages, from one to
three times the costs incurred by the Fund.
SCERCLA section 106(b)(1) provides that "any person who,
without sufficient cause, willfully violates, or fails or refuses
to comply" with any order, may be fined up to $25,000 for each
day in which the violation occurs or the failure to comply
continues.
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OSWER Directive Number 983 3.0-la
compel PRPs to pay penalties, as well as punitive damages of up
to three times the costs incurred by the Fund.
Regions should incorporate issuance of unilateral orders
into their site management plans consistent with the following
general principles. First, in the context of orders for RD
and/or RA, during the RI/FS, the Region should review the PRP
search to ensure that it is complete.
Second, apart from liability, the development of the factual
basis for the response action required in the order should begin
during the RI/FS process. When reviewing deliverables during the
RI/FS, a Region should always keep in mind that a unilateral
order may need to be issued on the basis of the RI/FS. The
Region should ensure that documents developed during the RI/FS
contain enough information to support all the findings necessary
.to support issuance of a unilateral order, i.e., that because of
an actual release or threat of release of one or more hazardous
substances from a facility there may be an imminent and
substantial endangerment to the public health or welfare or the-
environment. It is important to pay particular attention to the
baseline risk assessment. Baseline risk assessments provide an
evaluation of the potential threat to human health and the
environment in the absence of any remedial action.6 They provide
a basis for determining whether or not remedial action is
^Before a unilateral order is issued, the results of any
health assessment issued by the Agency for toxic Substances and
Disease Registry (ATSDR) also should be reviewed for consistency
with the order. Nonetheless, unavailability of, or the
possibility of differences with, an ATSDR health assessment
should not discourage issuance of a unilateral order. ATSDR*s
assessments and EPA's risk assessments are based on different
methodologies, with different purposes. ATSDR's hoalth
assessments are preliminary assessments usually performed before
the site remedial investigation has been completed. The main
purpose of the ATSDR health assessment is to determine if there
is a significant risk to human health requiring stops to reduce
exposure ouch as providing alternate water supplies or relocating
individuals. ATSDR also uses the results of the health
assessment to determine if additional studies such as
epidemiological studies or health surveillance programs should be
performed. As a result, the ATSDR health assessment and EPA's
risk assessment may reach different conclusions in oomo
circumstances. Where an ATSDR hoalth assessment (done before the
decision document is signed) appears to be different from EPA
risk assessment results, the difference should be addressed in
the administrative record for the selection of the response
action.
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OSWER Directive Number 9833.O-la
necessary and a justification for performing remedial action.
They will also be used to support imminent and substantial
endangerment findings in section 106 orders. In addition, a
statement of work (SOW) may be included or referenced in the
order.
The third general principle to be followed is that the
issuance of unilateral orders must be considered before a Fund-
financed response can proceed at a site. Unilateral orders are
typically to be issued at the end of the special notice period if
settlement is not reached at a site, an extension of negotiations
is not warranted, and the case meets statutory criteria and case
specific considerations set forth in this guidance. Also,
unilateral orders should be issued routinely before cases are
referred to the Department of Justice (DOJ) under section 106.8
Unilateral orders can be used to establish a case for seeking
treble damages in the event of noncompliance by the PRP and where
the Fund is used to clean up the site.
In cases where the Region decides not to issue a unilateral
order, prior to commencing a Fund-financed response, the Region
must prepare a written justification explaining the decision not
to issue a unilateral order. A copy of the justification must
be kept in the Region's enforcement files. Examples of instances
where adequate justification may exist include those cases which
In such instances, the SOW is an integral part of a
unilateral order because it provides the detailed requirements
for the development of the RD/RA workplans and reporting
requirements.
8See "Guidance on CERCLA Section 106 Judicial Actions,"
February 24, 1989 (OSWER Directive number 9835.7).
9The Region should notify Headquarters in writing at least
two weeks prior to obligation of funds with the reasons for not
proceeding with a unilateral order. The written explanation
should describe in general terms the reasons for not going
forward with the order. The written explanation should come from
the Regional Haste Management Division Director (after
consultation with the Office of Regional Counsel) to the
Director, OWPE. The Regions should also send a copy to the
Associate Enforcement Counsel, OECM-Waste. Additional
information on procedures to follow where a Region decides not to
issue a unilateral order prior to commencing a Fund-financed
response may be issued periodically. See "Use of CERCLA Section
106 Unilateral Enforcement for Remedial Design and Remedial
Action: Strategy for Fiscal Year 1990," February 14, 1990 (OSWER
Directive number 9870.1A.)
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OSWER Directive Number 9833.O-la
do not meet the statutory criteria, or where case specific
considerations for not issuing a unilateral order exist.
Statutory criteria are discussed in section III of this guidance;
case specific considerations are discussed in section V.
The site management plan should anticipate possible
noncompliance with the order, and include a course of action that
may be followed. In determining whether to enforce the
unilateral order, Regions should consider the importance of
maintaining section 106 judicial enforcement as a credible threat
to PRPs, as well as the availability of funds for Agency
response.
III. Leaal Requirements of Section 106 Orders for Remedial
Design/Remedial Action
A) Background Information about Section 106 Authorities
Two types of administrative orders under section 106 of
CERCLA may-be issued. Consent orders may be issued to formalise
removal and RI/FS settlements. Unilateral orders may be issued
to compel a party to undertake conventional removal actions,
RI/FS activities, or RD/RA work where a settlement was not
reached. Consent orders are not within the scope of this
guidance. See Appendix A for more detail on when consent
orders under section 106 may be used.
10This 'guidance should not be construed as limiting in any
way EPA's enforcement discretion to issue |106 orders.
"Agency policy favors use of consent orders for RI/FSs.
See the "Administrative Order on Consent for Remedial
Investigation/ Feasibility Study," (OSWER Directive number
9835.19).
"CERCLA 1122(d)(1)(A) requires that Agency agreements
entered into under 5122 with respect to remedial action must be
in the form of a consent decree, entered in the appropriate
United States district court. Other vehicles, including orders,
may be used for remedial design. See "Initiation of PRP-financed
Remedial Design in Advance of Consent Decree Bntry," (November
18, 1988) (OSWER Directive number 9835.4-2A).
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OSWER Directive Number 9833.O-la
B) Statutory Requirements of Section 106 Administrative
Orders
CERCLA section 106(a) provides as follows:
In addition to any other action taken..., when the President
determines that there may be an imminent and substantial
endangerment to the public health or welfare or the
environment because of an actual or threatened release of a
hazardous substance from a facility, he may require the
Attorney General of the United States to secure such relief
as may be necessary to abate such danger or threat....The
President may also, after notice to the affected State,
take other action under this section including, but not
limited to, issuing such orders as may be necessary to
protect public health and welfare and the environment.
Consistent with the statute, administrative orders issued
under section 106 may be issued if a release or threat of a
release o? a hazardous substance from a facility may present an
imminent and substantial endangerment to public health, welfare,
or the environment. The order must include findings on the
hazardous substance(s), the nature of the release or threat of a
release, the location of the release [i.e., the location is a
"facility1*], the nature of, and basis for the finding of, a
possible imminent and substantial endangerment.
It is important that the link between the release, the
possible endangerment, and the response action to abate the
possible endangerment mandated by the order, be clearly presented
in the order. The findings of fact section should describe the
problem at the site and state that "the actions specified in the
ROD and required by this order will protect the public health,
and welfare, and the environment."
Finally, before an order may be ir?ued, the affected State
must be notified. The statutory requirements of a section 106
order are described in more detail below.
1) Evidence of a Release or Threatened Release of a
Hazardous Substance
A "hazardous substance" is generally defined in CERCLA
section 101(14) as any substance, waste or pollutant designated
13Section 106(a) requires notice to the affected State
before issuing an administrative order. See additional
discussion in this section, at B(4).
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OSWER Directive Number 9833.O-la
pursuant to sections 307(a) and 311(b)(2)(A) of the Clean Water
Act, section 112 of the Clean Air Act, or section 102 of CERCLA,
any imminently hazardous chemical substance or mixture with
respect to which the Administrator has taken action pursuant to
section 7 of the Toxic Substances Control Act, or any hazardous
waste having the characteristics identified under or listed
pursuant to section 3001 of the Solid Waste Disposal Act....14
See 40 C.F.R. Part 302 for a list of hazardous substances.15
Under CERCLA section 101(22), "release" is defined as any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing
into the environment (including the abandonment or discarding of
barrels, containers, and other closed receptacles containing any
hazardous substance or pollutant or contaminant). The
determination of whether there is an actual or threatened release
depends upon several considerations. An actual release usually
should be observable in some form, whether visually or through
analysis showing the presence of contaminants in samples of soil,
water, or-air. The threat of a release, however, involves
releases that have yet to occur or find their way into the
environment. A surface impoundment that is about to overflow
because of rain is an example of a threatened release.
CERCLA $101(14) excludes from the definition of hazardous
substance: "...petroleum, including crude oil or any fraction
thereof which is not otherwise specially listed or designated as
a hazardous substance under subparagraphs (A) through (F) of this
paragraph, and...natural gas, natural gas liquids, liquified
natural gas, or synthetic gas usable for fuel (or mixtures of
natural gas and such synthetic gas").
1sNote that this list is not the exclusive list of hazardous
substances. Some RCRA [characteristic] wastes may not be listed
in 40 C.F.R. 302, but would still be hazardous substances if they
meet any of four characteristic criteria under 49 C.F.R. $261.20.
16The statute excludes some activities from the definition
of a release. CERCLA $101(22) excludes from the definition of
release "any release which results in exposure to persons solely
within a workplace, with respect to a claim which such persons
may assert against the employer of such persons...; emissions
from the engine exhaust of a motor vehicle, rolling stock,
aircraft, vessel, or pipeline pumping station engine; release of
source, byproduct, or special nuclear material from a nuclear
incident..."
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OSWER Directive Number 9833.O-la
For RD/RA, the release or threat of a release will have been
documented during the RI/FS. This information must be
identified in reasonable detail in the order.
2)	Evidence that the Release or Threatened Release is
from a Facility
The release or threat of a release must be from a
"facility." A facility is broadly defined in CERCLA section
101(9) as:
(A) any building, structure, installation, equipment, pipe
or pipeline (including any pipe into a sever or publicly
owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container, motor
vehicle, rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located, but
does not include any consumer product in consumer use or any
vessel.
When read together with CERCLA section 101(17) and (18),
this definition includes any on-shore or off-shore sites, not to
exclude land transportation facilities, from which releases or
threats of releases may originate. The administrative order.must
specify the physical location of the release. This establishes
that the release was from a facility.
3)	Evidence of a Possible Imminent and Substantial
Endanoerment
An endangerment is a threatened or potential harm. An
endangerment is imminent if the conditions that give rise to it
are present, even though the harm might not be realized for
years. An endangerment is substantial if there is reasonable
Information relevant to the release or threat of release
documented during the RI/FS should be referenced in the order,
and included in the administrative record for selection of the
response action.
ieB. P. Goodrich Co. v. Murtha. 697 F. Supp. 89 (D. Conn.
1988); United States v. Conservation Chemical Co.. 619 F. Supp.
162 (W.D. Mo. 1985); United States v. Ottati and Goas. Inc.. 630
F. Supp. 1361 (D. N.H. 1985); United States v. Northeastern
Pharmaceutical and Chemical Co. ("NEPACCO"), 579 F. Supp. 823
(H.O. Mo. 1984), aff'd in part and rev'd in part on other
grounds. 810 F.2d 726 (8th Cir. 1986), cert, den.. 484 U.S. 1008
(1987); United States v. Reillv Tar & Chemical Corp.. 546 F.
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OSWER Directive Number 9833.O-la
cause to believe that someone or something may be exposed to a
risk of harm from a release or threatened release.19 This
statutory element has been judicially interpreted to require only
a limited showing. The mere threat of harm or potential harm to
public health, public welfare, or the environment is
sufficient.20 The endangerment need not be immediate to be
imminent.
Courts have held that there may be an imminent and
substantial endangerment when:
o Numerous hazardous substances are present at, and being
released into the environment from a site that is
accessible to humans and wildlife;
o A relatively small quantity of hazardous substances
that are toxic at low dosage levels are substantially
likely to enter the groundwater and result in human and
environmental exposure;
o Contaminated groundwater flows in the direction of a
subdivision using well water;
o Numerous hazardous substances have reached private
drinking water wells and have contaminated the
groundwater and surface waters;
Supp. 1100 (0. Minn. 1982).
"Conservation Chemical, at 195-96.
^Conservation Chemical, at 175, 193-94; Ottati & Gobs, at
1394.
21Coneervation Chemical. at 175, 196-97.
22NEPACCO. 579 F. Supp. at 846.
"United States v. Sevmour Recycling Corp.. 618 F. Supp. 1
(S.D. Ind. 1984).
24United States v. Hardaae. 18 Env't Rep. Cas. (BNA) 1685
(W.D. Okla. 1982).
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OSWER Directive Number 9835.O-la
o Numerous hazardous substances are migrating from a
facility and have contaminated the soil and
groundwater.
The above list is far from exhaustive.
For RD/RA unilateral orders, the endangerment should have
been documented in the baseline risk assessment. This risk
assessment should also be used to support the determination of a
possible imminent and substantial endangeraent. No additional
resources should be required to support tho finding of a possible
imminent and substantial endangerment.
The possible imminent and substantial endangerment must be
set forth in the order. It is useful to include findings in the
order which describe the potential or actual risk from the
concentration levels detected in the release. However, such
information is not required in the order itself to establish a
possible imminent and substantial endangerment.
4) Notice to Affected States
CERCLA section 106(a) authorizes the Agency to issue such
orders as may be necessary to protect public health and welfare
and the environment, after giving notice to the affected state.
The affected State is interpreted to bo the State where the
facility is located, and in which the cleanup will bo conducted.
Notice is usually given to the Diroctor of the State's pollution
control agency. For the RD/RA, circumstances generally permit
written notification to the State prior to issuing the unilateral
aSee Ottati and Goss. 630 F. Supp. 1361.
US&& the guidance "Risk Assesoment Guidance for Superfund."
As updated, this guidance presently consists of the following two
volumes: the "Human Health Evaluation Manual," (October 1989)
(OSWER Directive number 9285.7-oia), and the "Environmental
Evaluation Manual," March 1989 (OSWER Directive number 9285.7-02)
[EPA/540-1-89/001]. See also the "Interim Final Guidance on
Preparing Superfund Decision Documents," June 1989, (OSWER:
Directive nuober 9355.3-02).
z7CERCLA 8101(27) defines State to include "the ooveral
States of tho United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, tho United
States Virgin Islands, the Commonwealth of the Northern Marianas,
and any other territory or possession over which tho United
States has jurisdiction." It is IPA policy to give Indian tribes
equivalent notification.
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OSWER Directive Number 983'3.0-la
order. In the event that verbal notice is given, a telephone
conversation log should be retained.
C) Judicial Review of Unilateral Orders
CERCLA precludes PRPs from initiating court proceedings to
challenge a unilateral order upon receipt. Under CERCLA section
113(h), courts may review section 106 orders only whan the Agency
seeks to enforce the order, the Agency seeks penalties for
violation of the order, or the PRPs seek reimbursement from EPA
of response costs incurred after compliance with the order.28
Therefore, if PRPs refuse to comply with a unilateral order, the
Agency may use the Fund to clean up the site, without first
defending its actions in court.
Once in a court proceeding where the validity of the order
is properly at issue, section 113(j)(l) of CERCLA provides that
judicial review.of any issues concerning the adequacy of any
response action is limited to the administrative record. The
Agency already will have compiled the administrative record for
the selection of the remedy. This record will include
information on the release, the possible endangerment, and the
response action required.
IV. Possible Recipients of Unilateral Orders
CERCLA section 106 does not specify the parties •to whom an
order may be issued. Under section 107(a), parties liable under
CERCLA are:
(1) the owner and operator of a vessel or a facility; (2)
any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such
hazardous substances were disposed of; (3) any person who by
contract, agreement, or otherwise arranged for disposal or
treatment of hazardous substances...; and (4) any person who
accepts or accepted any hazardous substances for transport
to disposal or treatment facilities, incineration vessels or
sites selected by such person....
These parties may receive a section 106 order. However,
section 106 does not limit issuance of orders to these PRPs. In
appropriate cases, unilateral orders may be issued .to parties
other than those specified in section 107(a), if actions by such
^Section 113(h) also allows judicial review in the context
of S107 cost recovery actions, S310 citizen suits, and 1106
injunctive action.
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OSWER Directive Number 9833.O-la
parties are necessary to protect the public health, welfare, or
the environment. For example, a unilateral order may be issued
to the owner of land adjoining the site, to obtain site access.29
A unilateral order also may be issued to prevent a non-PRP from
interfering with a response action.
The order generally should specify that each of the PRPs
named as respondents is jointly and severally liable to carry out
all obligations imposed by the order unless there is a clear
divisibility of harm at a site. The Agency typically will not
allocate work required by the unilateral order among the
respondents. For example, an order can require multiple PRPs to
perform all activities required by the order, as well as require
the submission of one consolidated work plan from all
respondents. The order should specify that the failure of one or
more of the respondents to comply with all or any part of the
order shall not in any way excuse or justify noncompliance by any
other respondent. In the limited context of mixed work or carve-
out orders^(see section IX of this guidance), it may be
appropriate for certain parts of a response action to be included
in a settlement and other parts of a response action to be
included in an order.
V. Case Specific Considerations
A. Decision Whether to Issue an Order
In addition to the statutory requirements of unilateral
orders described above, additional factors need to be considered.
When the statutory requirements for issuing unilateral orders are
present, unilateral orders should be issued to parties who meet
the following criteria.
^Usually, the Agency uses the broad access authority in
§104(e), but has also been successful under #106 as well. See
B.F. Goodrich Co. v. Murtha. 697 F. Supp. 89 (D. Conn. 1988).
(The court upheld EPA's use of a 106(a) order to obtain site
access, stating that section 106 "is broadly worded to authorize
all relief 'necessary to abate [the] danger or threat.' There is
no express restriction on the nature of the relief authorized
except as equity and t^he public interest may requir/B.") 697 F.
Supp. at 94.
MNote, however, that much of this guidance pertains to PRPs
and may be inapplicable to orders issued to non-PRPs.
31Not all of the criteria apply to parallel unilateral
orders, which are described generally in section IX.
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1)	Evidence that the Parties are Liable38
Unilateral orders should be issued based upon adequate
evidence of the PRP's liability. 3 Evidence sufficient to
support the liability of each PRP named as a respondent needs to
be in EPA's possession. PRP searches, including section 104(e)
information requests, should establish PRP liability prior to the
RD/RA stage. The PRP search should be supplemented as needed
during the RI/FS. A unilateral order may be amended to include
additional PRPs after further evidence has been developed.
2)	PRPs are Financially Viable
The financial viability of PRPs should be considered before
an order is issued. EPA should have a reasonable belief that
the PRPs collectively have adequate financial resources before
the Agency issues an order that directs them to conduct the
remedial action. Once a decision to issue an order is made, it
may include PRPs who have modest means or an unclear financial
posture, ^Specially where such PRPs contributed considerable
amounts of hazardous substances to the site. Generally, the
order should not include PRPs that lack any substantial
resources, unless the activities required of those persons do not
involve expenditures of money (e.g., providing access).
^Unilateral orders may also be issued to parties other than
those listed in 6107(a). see discussion in section IV.
33The order should state the facts relating to PRP
liability. The extent of detail necessary may .be determined on a
case-by-case basis by the Region. (It should also be noted that
liability of a particular person is not required for the Agency
to issue an order to that person. An example of this is an order
to obtain access. See discussion in Section XV above.)
MIt is important that the early requests for information
concerning PRPs be developed fully to support liability under
§107 of CERCLA. See the "PRP Search Supplemental Guidance for
Sites in the Superfund Remedial Program," June 29, '1989 (OSWER
Directive number 9835.7) .
35See the February 24, 1989 "Guidance on CERCLA Section 106
Judicial Actions," (OSWER Directive number 9835.7) for a listing
of sources that may be consulted whan determining the financial
capability of PRPs.
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3)	The Response Action Is Specifically Identified
Unilateral orders should specifically define the response
action required, to the maximum extent possible. A specifically
identified response action is required for implementation by the
PRPs, for the Agency to determine compliance, and for the order
to be legally enforceable. For RD/RA actions, the order should
reference the ROD and specify a schedule of deliverables. Often,
the order should also include a statement of work.
4)	PRPs have Technical Capability and Agency Oversight is
Feasible
The technical difficulty of response actions should be
considered before issuing unilateral orders. In certain
circumstances, EPA may conclude that the PRPs are unlikely to
properly perform the RD or RA, even with good oversight. In this
context, it may be appropriate to fund the design. In addition,
in some instances EPA may fund the remedial action.
B) Determining the Identity of the Respondents
In general, present owners and operators and viable past
owner(s) and operator(s) of the site at the time of disposal
should be named as respondents. At a minimum, the present owners
and operators must provide access. The Agency will also
generally consider naming parties who arranged for disposal or
treatment of hazardous substances. When there are multiple PRPs,
the Agency may consider the aggregate volume (percentage of
total) and aggregate financial viability of all the PRPs to be
named. When evaluating whether to name an individual PRP in an
order, the PRP's contribution to the site (volume and nature of
substances), and financial viability should be considered. The
Agency should consider naming the largest manageable number of
parties. Relevant evidentiary concerns must also be considered
when deciding which PRPs to name in a: order. In addition,
consideration should be given to whether potential
36Where there are multiple PRPs, the fact that they have
formed some type of PRP organization will not affect their
individual liability.
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OSWER Directive Number 9833.0-la
respondents will have a valid "sufficient cause" defense37 or a
section 107(b) defense. Parties who would clearly have a valid
defense to an EPA action following the parties' failure to
comply should not be named in the unilateral order.
VI. Elements of Unilateral Orders
The following elements should be included in unilateral
orders. The contents of several key provisions are discussed
below.
o	Introduction and Jurisdiction
o	Findings of Fact
o	Conclusions of Law and Determinations
o	Notice to the State
o	Order
o	Definitions
o	Notice of Intent to Comply
o	Parties Bound
o	Work to Be Performed
o	Failure to Attain Performance Standards
o	EPA Periodic Review
o	Endangerment and Emergency Response
o	EPA Review of Submissions
o	Progress Reports
o	Quality Assurance, Sampling and Data Analysis
o	Compliance with Applicable Laws
o	Remedial Project Manager
More information about the sufficient cause defense will
be discussed in the forthcoming Interim Guidance on Enforcement
of CERCLA Section 106(a) Administrative Orders Through Section
107(c)(3) Treble Damages and Section 106(b)(1) Penalty Actions.
MCERCLA 107(b) lists several defenses to CERCLA liability
for a PRP who can establish by a preponderance of the evidence
that the release or threat of release of a hazardous substance
was caused solely by (l) an act of God; (2) an act of war;.(3) an
act or omission of a third party other than that which occurred
in connection with a contractual relationship, if due care was
exercised and certain precautions against foreseeable acts or
omissions taken; or (4) a combination of these defenses.
S9A §106 model unilateral order for remedial designs and
remedial actions is under development. See the "Model Unilateral
Administrative Order for Remedial Design and Remedial Action,"
(OSWER Directive number 9833.0-la).
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OSWER Directive Number 9835.O-la
o Access to Site Not Owned By Respondent(s)
o Site Access and Data/Document Availability
o Record Preservation
o Delay in Performance
o Assurance of Ability to Complete Work
o Reimbursement of Response Costs (Optional)
o United States Not Liable
o Enforcement and Reservations
o Administrative Record
o Effective Date and Computation of Time
o Opportunity to Confer
o Termination and Satisfaction
The "introduction and jurisdiction" section of the order
should set forth EPA's authority under CERCLA section 106 to
issue unilateral orders. It should reiterate the delegation of
this authority to the EPA Regional Administrator, and, if the
order is signed by a subordinate, delegation from the RA to that
subordinate.
The "findings of fact" section should identify and describe
the conditions at the site in detail to support the finding of
release or threatened release from a "facility." It should
identify the hazardous substances at the site to the extent
known.
This section should also describe the underlying factual
basis for the conclusion that there may be an imminent and
substantial endangerment because of a release or threatened
release of those substances.40 To support this conclusion, the
findings of fact section should contain a brief summary of data
from the remedial investigation which shows the extent of
contamination at the site and exposure pathways and establishes
the predicate for the response action. The data regarding
contamination at the site and risk assessment should be contained
in the administrative record for the selection of remedy. This
information should be summarized in the ROD. Both of these
documents should be referenced in the order.
The findings of fact section should also state factual
information to support the elements of liability alleged. If a
PRP is to b« included in the order under a "successor," "alter
ego," or other complex liability theory, the findings of fact
section should explain the factual basis to support those
theories.
4^The risks should be set forth in the baseline risk
assessment and ROD. A toxicologist should be consulted in regard
to this portion of the order.
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OSWER Directive Number 983*3.0-la
The "conclusions of law and determinations" section of the
order, together with the "notice to the State", should include
conclusions that meet the statutory requirements for a unilateral
order. The conclusions of law section should additionally
establish that the parties are appropriately subject to section
106 authority, as described in sections III and IV above.
The "notice of intent to comply"41 section should require
each respondent to provide written notice to EPA, no later than
five days after the effective date of the order, of the
respondent's unconditional intent to comply with the terms of the
order. The order should also specify that failure to respond by
this deadline will be considered noncompliance, and may trigger
an Agency decision to file a judicial action or start Fund-
financing. The "notice of intent to comply" section should
require the respondent to provide notice of and the basis for any
sufficient cause defense which may be available to a respondent
and which the respondent will pursue to contest liability for
complying with the order. To the extent that the respondent's .
sufficient cause defense is based on an allegation that the
response action ordered was inconsistent with CERCLA or the NCP,
the Agency believes that the respondent may rely only on the
administrative record for the response action. This is because
section 113(j) provides that "in any judicial action under this
Act" the validity of response actions shall be adjudicated "on
the administrative record". The order should specify that all
information relating to a sufficient cause defense must be
submitted in writing, at the same time that the respondent's
notice of intent to comply is provided.
The "work to be performed" section should clearly order
respondent to implement the ROD42 (and the RD if completed). and
toward that end, to implement the statement of work (SOW).
This section of the order should describe the content of and
schedule for the work plan, sampling and analysic plan, and site
health and safety plan, and should specifically roquire the
respondent's performance to implement these plans following EPA's
41A PRP'o notice of intent to comply applies to all of the
requiremento of the order, beginning from the effectivo date and
continuing through all of the deliverables and activitios
required by the order.
42As modified by an Explanation of Significant Differences
document, or ROD amendment, if applicable.
45Where a statement of work is used, it must bo attached and
incorporated by reference into the order.
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OSWER Directive Number 9833.O-la
approval or modification. This section of the order should also
specify major deliverables. Listing the major deliverables and
providing a performance schedule in the unilateral order should
help to minimize the submission of late or inadequate products.
Clearly delineating the major deliverables and due dates will
also assist in subsequent enforcement of these provisions of the
order.
The "work to be performed" section should also require the
respondent to provide prior written notification to the receiving
state of any off-site shipments of hazardous substances.u
Regions should schedule delivery of the work plan as soon as
reasonably possible after the order's effective date. This
promptly initiates the work and serves aft an early indication of
a PRP's actual compliance with the order.
The "delay in performance" section should require the
respondent_to provide written notification to EPA in the event of
any delay or anticipated delay in complying with the order.
The "United States Not Liable" section explains that the
United States, by issuing the order, does not assume any
liability for any injuries or damages to persons or property
resulting from acts or omissions by respondent(s), or its
employees, agents, successors, assigns, contractors or
consultants in carrying out any action or activity pursuant to
the order. In addition, this section should state that neither
EPA nor the United States is to be construed as a party to any
contract entered into by the respondent in carrying out any
action required by the order.
The "enforcement and reservations" section of the order
should reiterate the Agency's ability to clean up the site with
Fund money,, or seek judicial enforcement. The unilateral order
should expressly reserve the Agency's takeover rights as
including, but not being limited to, the following circumstances:
(1) the PRPs fail to indicate a willingness to comply with the
unilateral order by the response date; (2) the period for
compliance with any requirement of the order expires without such
compliance; (3) PRPs perform inadequately or submit
unsatisfactory deliverables, or (4) the immediacy of the threat
is such that a Fund-financed response, or a judicial order to
ensure compliance, becomes necessary. This section should also
uSee "Notification of Out-of-state Shipments of Superfund
Site Wastes," (September 14, 1989) (OSWER Directive number
9330.2-07).
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OSWER Directive Number 983'3.0-la
preserve EPA's right to take any additional action, including
modification of the order or issuance of additional orders.
The "administrative record" section of the order should
state that upon EPA's request, if there are any documents
generated by the respondent which relate to the selection of the
response action, the respondent should submit these documents to
EPA for possible inclusion in the administrative record.45
Generally, the "effective date and computation of time"
provision of a unilateral order for the RD/RA should provide
that the order is effective on a date that follows the oppor-
tunity for a conference and that all times for performance of
ordered activities shall be calculated from this effective date.
This type of order becomes effective without further action.
Where it appears likely that negotiation of a consent decree
can be concluded in a relatively short period of time, it may be
useful to_issue a unilateral order with a delayed effective date.
The conference and response date of unilateral orders with
delayed effective dates typically should precede the effective
date by no more than 20 to 30 days. See section VIZZ of this
guidance for further explanation of unilateral orders with
delayed effective dates.
The "opportunity, to confer" section should explicitly give
PRPs an opportunity to confer with EPA. The scope of the
conference is limited to issues of implementation of the response
actions required by the order, and the extent to which the
respondent intends to comply with the order. The order should
provide a deadline for requesting the conference. PRPs may be
given ten calendar days from the date the order is mailed to
request a conference. The order should indicate that the
conference may be forfeited if not requested by this date. The
order may specify the date of the conference, if respondents
elect to take advantage of this opportunity. The conference is
discussed in greater detail in section VZZZ of this guidance.
The conference request date should precede the effective date of
the order and allow time for a conference before the date by
which recipients must indicate their willingness to comply with
the order (response date). The timing of the conference request
date shall not be permitted to extend the effective date or any
of the deadlines required by the order.
It is possible that information generated during RD/RA
will meet the criteria of §300.825 of the NCP relating to the
addition of documents to the record after the decision document
is signed.
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OSWER Directive Number 9833.O-la
The "termination" section should provide for a clear
termination point of the order. This section should indicate
that respondent shall provide EPA with written certification
that it has completed all of the terms of the order, including
any additional tasks which EPA has determined necessary.
EPA shall provide respondent with a notice that the order is
terminated, based upon EPA's present information and belief that
respondent has fully complied with the requirements of the order.
EPA's notice shall be expressly conditioned on the accuracy of
the representations contained in respondent's certification.
This section is not equivalent to a release or a covenant not to
sue, nor should it be phrased in a manner which could be
interpreted as a release or covenant not to sue and the order
should specifically so state. Further, the order shall provide
that if EPA determines that additional response activities are
necessary to meet applicable Performance Standards, EPA may
notify respondent that additional response actions are necessary.
VII.	Modification of Unilateral Orders
The Agency may decide to modify the terms of the unilateral
order for any reason, including information received during the
response action. All such information should be documented in
writing. The unilateral order may only be modified in writing by
the Agency official who signed the order, i.e.,- the Regional
Administrator or his or her delegate.46 Agency decisions to
modify the unilateral order should be communicated promptly to
the PRPs. Verbal notification of EPA's intent to modify the
terms of the order may be appropriate if followed by a mailed
copy of the modified unilateral order to the PRPs. The
verbal modification takes effect upon issuance of the modified
unilateral order to the PRPs.
VIII.	Procedures Relating to Issuing Unilateral Orders
A) special ffrtisg Procedures
Section 122(e) of CERCLA gives EPA discretion to utilize the
special notice procedures if EPA determines that a period of
negotiation would facilitate an agreement with PRPs and would
expedite remedial actions. Special notice procedures give PRPs
an opportunity to negotiate a settlement with the Agency, before
the Agency takes an enforcement action against them or conducts
''This does not preclude issuance of an order that
incorporates by reference a document that is subsequently
approved by another EPA official consistent with the order. An
example of this is the Regional Project Manager's (RPM) approval
of the workplan.
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OSWER Directive Number 9833.0-la
the response action itself. Special notice letters vill be
issued prior to almost all orders for RD/RA. Spocial notice
procedures may affect timing of issuance of unilateral orders.48
The special notice moratorium for remedial action lasts from 60
to 120 days, depending upon whether respondents submit a good
faith settlement offer by the 60th day. If the Agency receives
a good faith offer for the remedial action within the first 60
days of the moratorium, the Agency may not take any action for a
total of 120 days from respondents' receipt of the spocial notice
letter. If special notice has been issued, Regional offices
should be prepared to issue unilateral orders at tho conclusion
of the special notice moratorium, consistent with tho following
principles.
The Agoncy may issue unilateral ordors immediately upon
expiration of the special notice moratorium. Thoroforo, if a
good faith settlement offer is not received by the 60th day, the
Agency normally should issue a unilateral order shortly
thereafter, if such an order is appropriate.
Because of the statutory moratorium, different rules apply
if PRPs submit a good faith settlement offer within 60 days of
the special notice. In that case, unilateral ordoro may hot be
The "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange," 53 Fed. Reg. 5298 (February 23, 1988)
(OSWER Oiroctive number 9834.10) provides tho following oxamples
of circumstances where it would generally not bo appropriate to
issue special notice letters: l) where past dealings with the
PRPs strongly indicate that they are unlikely to negotiate a
settlement; 2) where EPA believes the PRPs have not been
negotiating in good faith; 3) where no PRPs have boon idontified
at the conclusion of the PRP search; 4) where PRPs lack the
resources to conduct response activities; 5) whoro thore are
ongoing negotiations; or 6) where notice letters wero already
sent prior to the reauthorization of CERCLA and ongoing
negotiations would not benefit by issuance of a special notice.
For information on special notice letters and municipalities, see
the "Interin Policy on CERCLA Settlements Involving
Municipalities and Municipal Wastes," (OSWER Directive number
9834.13).
"if a special notice letter is not issued, tho statutory
moratorium is not triggered, and the Agency can iocuo a 8106
unilateral order immediately.
49See the "Interim Guidance on Notice Letters, Negotiations,
and Information Exchange," 53 Fed. Reg. 5298 at 5307 (1988)
(OSWER Directive number 9834.10).
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OSWER Directive Number 9833. 0~la'
'ssued for a	120 daYs from issuance of th® special
otice letter.
Where ther© has been a good faith offer, but s©ttl@ment is
not reached as of the 120th day after issuance of th® special
notice letter, th© Agency should be prepared to issue unilateral
orders. Only if settlement is likely in the v®ry maar futur® may
unilateral ordera be delayed. Unilateral ©rdsrs with delay®d
effective dates may be issued,for example, at the onset of a
negotiations extension. They should become effective on the
expiration date of the extended negotiations.
Unilateral orders with delayed eff®etiv® datoo sh©uld bo
viewed as encouraging the successful conclusion ©£•nogetiatiens.,
However, unilateral orders with delayed e£f®etiv® datos airo not
to be considered wdraftw orders, and their tarms aro net
negotiable. These orders indicate the Agency's commitment to the
response action, and the desire to secure its timely
implementations When us®8)
(OSfcJEE Directive number 9834.10), PEPs generally uill havo had an
opportunity to assert that they are net liablo. UFA alo@
provides PEPs opportunities to participate In tho ool®eti©n ©£
th® remedial action. PEPs are provided with an opportunity to
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OSWER Directive Number 9833.o-la
purpose of resuming settlement negotiations or negotiating the
terms of the order. The conference is not~an--evidentiary
hearing. The opportunity to confer does not give PRPs the right
of pre-enforcement review.53 The conference is not intended to
be a forum for discussing liability issues or whether the order
should have been issued. Instead, the conference is designed to
ensure that the order is based on complete and accurate
information, and to facilitate understanding- of implementation.
The Agency will not create an official stenographic record
of the conference, although a written summary may be prepared.
Following the conference, a written summary- of significant issues
raised may be prepared and signed by the Agency employee who
conducted the conference. Significant issues raised concerning
implementation should promptly be brought to the attention of the
official who signed the order.
Respondents may appear in person or by an attorney or other
representative. PRPs will have the opportunity to asJc questions
and present their views through legal counsel-or technical
advisor.
Within five days of the conference, the respondent may
submit a written summary of any arguments it-presented at the
conference. At this time, in addition to this summary, the
respondent may submit any written argument or evidence of a
sufficient cause defense or any issues relating to factual
determinations set forth in the order.
The conference normally will be held at the EPA Regional
office. The RPM, the regional counsel attorney, and any other
comment and. provide information concerning the remedial action
plan, an opportunity for a public meeting, and a response to each
of their significant comments, criticisms,'and new data submitted
(See CERCLA IS 113(k), 117.) Since EPA already will have
considered these concerns, the conference shall not be a forum
for reassertion of the PRP's views on these issues.
ssThe timing of judicial review of 1106fa) orders is
governed by 1113(h) of CERCLA. Also, PRPs may obtain judicial
review after they have fully complied with., the unilateral order
through a reimbursement petition filed under f106(b) of CERCLA,
wherein PRPs may contest issues of liability or the selection of
remedy.
^Attendance at the conference should be limited to EPA and
the respondent, and the respondent's attorney and/or technical
advisor.
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OSWER Directive Number 9833.O-la
appropriate Regional officials, should attend. The conference
schedule and agenda will be at the discretion of the EPA employee
leading the conference consistent with this guidance. It is in
the Region's discretion who presides at the conference. The
supervisor of the RPM assigned to the site would be an
appropriate person. The assigned regional counsel attorney
should not conduct the conference although he or she may attend.
In addition, the attorney should not prepare a summary, due to
the possibility that this may put the attorney in the position of
being a witness in subsequent litigation.
IX. Specialized Forms and Use of Unilateral Orders
Specialized forms of unilateral orders may serve as a
settlement incentive for cooperative PRPs, and may also serve as
a disincentive for non-settlors. There are different forms of
unilateral orders which may serve as settlement inducers.
-Generally, in drafting unilateral orders, the order should direct
the PRPs .to conduct the entire remedial action. In limited
instances, however, the Agency may settle with some PRPs and
issue "carve-out" unilateral orders to recalcitrant parties to
compel them to conduct a discrete portion of the work at the
site. The Agency also may issue "parallel" unilateral orders to
recalcitrants ordering them to coordinate and cooperate with the
settlors in conducting the response action. Carve-out and
parallel orders are explained in more detail below.
During settlement negotiations, the Agency may set aside a
portion of the cleanup for non-settlors, and may verbally
indicate its present intent to issue unilateral orders for that
portion of the work to all PRPs who do not sign the settlement
agreement. This is referred to as a "carve-»out" settlement.
Work that may appropriately be carved out includes portions of
operable units that constitute independent tasks. To prevent any
possibility of delaying the remainder of the response action,
only independent, discrete tasks should be the subject of a
carve-out order. Otherwise, the entire process may hinge upon
the non-settlors timely compliance with the carve-out order.
Separate tasks that may be carved out may include removals of
contaminated soil in separate areas, or removal of specified
tanks or drums.
SSA "carve-out settlement is a form of mixed work. For
information on the types of mixed funding arrangements such as
mixed work, which may be used as incentives to settlement, see
"Superfund Program; Mixed Funding Settlements," (OSWER Directive
number 9834.9) 53 Fed. Reg. 8279 (March 14, 1988).
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OSWER Directive Number 9833.0-la
Due to the uncertainties of vhen and how tho work allocated
to non-settlors will be completed and of how many PRPs will
choose to sottle, before a carve-out order to non-sottlors is
proposed during settlement negotiations, the Regions ohould
consider the possibility of having to pursue the non-settlors or
fund the work.56 In appropriate cases, the settlement agreement
should provide for a delayed schedule for the settlors to perforin
the carved-out work. By use of a delayed schedule, the Agency
may later seek the work from the settlors, if tho non-settlors do
not comply with the carve-out order. Second, the Region should
consider the possibility of undersubscription or oversubscription
to the settlement. If there is oversubscription to the
settlement, there might be too few PRPs to which the carvo-out
order could bo issued.
Unilateral orders may also serve as a cottlomont incentive
when the Agency has reached a complete settlomont at the site
with fewer than all PRPs. When a complete oottlomont agreement
is reached-for conduct of the remedial action with fower than all
PRPs, the Agency may agree to issue "parallel" unilateral orders
to the liable non-settlors. Parallel unilateral orders direct
the non-settlors to coordinate and cooperate with tho settlors'
cleanup activities, as described in the consent docroe. The
requirements of a parallel unilateral order match tho response
action Requirements set forth in tho conoont docroo oottlement.
Where the response action is properly conducted by tho settlors,
nonsettling recipients of parallel unilateral ordoro may be
liable for daily civil penalties if they failod to contribute to
the settlors' efforts by, for example, payment of money or "in-
kind" contribution. Parallel unilateral orders benefit the
settlors because non-settlors may contribute to tho PRP cleanup
revenues upon receipt of the unilateral order. Alternatively, if
recipients of unilateral orders fail to financially, or
Factors to consider when deciding whether to propose a
mixed work oottlomont include the strength of the liability case
against oattlors and any non-settlors. This includoo litigative
risks in proceeding to trial against settlors, and tho nature of
the case roaaining against non-settlors after the settlement.
Mixed work settlements should be avoided whore thefe io a
significant potential for delays in cleanup due to inadoquato
coordination or potential conflicts. Soo tho tfixod Funding
Settlements guidance cited above.
srRegions must consider the implications of tho possibility
of non-compliance with such an order.
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OSWER Directive Number 9833.0-la
otherwise, assist the settlors, unilateral orders nay assist
settlors to bring contribution actions against tho non-sottlors.
X.	Continued Negotiation after Issuance of An Order
Upon receipt of a unilateral order, PRPs may indicate a
preference for conducting the response action under a consent
decree. This will generally only be considered when it is
possible that the agreement will be reduced to a decree promptly.
Except where quick agreement on a consent decree is likely,
negotiations normally should not be resumed since the PRPs
presumably were given a full opportunity to settlo with the
Agency prior to receipt of the unilateral order. Alternatively,
during negotiations, PRPs may indicato that thoy will not sign a
consent decroe, but may comply with a unilateral administrative
order. In this situation, the Region can decido whether it is
appropriate to issue a unilateral order.
The-^Agency may benefit from PRP conduct of a response action
under a unilateral order. Such benefits may include oarly
initiation of the response action through tho absence of
prolonged negotiations and an expedited review procoss. While
certain other benefits may accrue to the Agoncy under a consent
decree rather than a unilateral order, in tho interest of early
initiation of the rosponse action, tho Agoncy may choose to
require PRP conduct of a response action under a unilateral order
in lieu of a consent decree.
XI.	Noncompliance with Unilateral Orders
In the event that PRPs do not submit their notice of intont
to comply letter by the date required, or do not adequately
comply with a unilateral order, the Agency must docido whether to
immediately seek judicial enforcement of tho order, or to assume
the lead on the project and conduct the RD and/or tho RA with
Fund money. Agency funding of the project may bo followed by a
judicial referral, at a minimum, for cost recovery, penalties
and damages. Regional offices have discretion to choose either
funding or litigation, based upon: the availability of funds
Administrative orders do not require judicial approval or
public cooDont. These procedures apply to consent decrees
entered undor {122. See §122(d)(2).
S9Under a unilateral order, PRPs will be subject to {106(b)
daily penalties instead of stipulated penalties, and they are
ineligible for contribution protection or covenants not to sue.
Past costs typically will be recovered by EPA through a demand
letter and/or a {107 cost recovery lawsuit.
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OSWER Directive Number 9833.0-la
including State-cost share funds for the RA; the urgency
presented by the site; the amount of available enforcement
resources; and the degree to which the case fits the criteria for
judicial enforcement. Regions also should consider the need for
EPA to maintain a credible section 106 enforcement presence in
the Superfund program. See the "Guidance on CERCLA Section 106
Judicial Actions," for a discussion of the appropriate criteria
for a judicial referral.
The primary focus in referring a case to DOJ is generally
the Agency's prospect for successful litigation and the need to
ensure remedial action at a site. Once the Government decides to
bring a section 106 action against the PRPs, it will pursue the
largest manageable number of potentially liable parties, based on
considerations such as the volume and naturo of their
contribution, their relationship to the site (such as owners and
operators), their financial viability, and their recalcitrance in
the settlement process. In selecting defendants, tho Agency
should consider whether, based on information obtained after
issuance of the unilateral order, any of tho respondents have a
"sufficient cause" defense or a section 107(b) defense.
XII. Note on Purpose and Use of this Memorandum
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are intended solely
for the guidance of the U.S. Environmental Protection Agency.
They do not constitute rulemaking by the Agency, and may not be
relied upon to create a right or benefit, substantive or
procedural, enforceable at law or in equity by any person. The
Agency may take any action which is at variance with the policies
or procedures contained in this memorandum, or which is not in
compliance with internal office procedures that may be adopted
pursuant to these materials.
If you have any questions concerning any material contained
herein, please call Deborah J. Hartman (FTS)/(202) 382-2034 of
the Office of Waste Programs Enforcement. The contact at the
Office of Enforcement and Compliance Monitoring is Patricia L.
Winfrey at (FTS)/(202) 382-2860.
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OSWER Directive Number 9833.O-la
APPENDIX A
ADMINISTRATIVE AND JUDICIAL SETTLEMENT AND UNILATERAL
ENFORCEMENT AUTHORITIES
I. Administrative Settlement and Unilateral Enforcement
A.	sections 122 and 106 Consent Administrative Orders
Prior to SARA, the Agency based its consent administrative
orders for both removals and the RI/FS on section 106 of CERCLA.
The RI/FS settlement agreement is now typically based upon CERCLA
sections 104 and 122. In these cases, a finding of imminent and
substantial endangerment is no longer required for RI/FS
agreements. RA settlements under section 122 are embodied in
consent decrees.60 Unilateral orders for conventional removals
continue to be issued pursuant to section 106.
Penalties available for non-compliance with consent
administrative orders include stipulated penalties, section 109-
monetary penalties, and section 106(b) daily civil penalties and
possibly treble damages where the Fund takes over.
B.	Section 106 Unilateral Administrative Orders
Section 106 unilateral administrative orders may be used to
compel PRPs to conduct removals, RI/FSs , remedial designs or
remedial actions. If unilateral orders have the desired effect
PRPs will comply with the terms of the orders, or they may decide
to settle with the Agency. If they agree to settle on favorable
terms, the unilateral order may be followed by a consent
administrative order for removals and RI/FSs, or a consent decree
for RD/RA.
If PRPs do not comply with the unilateral order "without
sufficient cause," daily civil penalties nay be imposed by a
court under section 106(b)(1). Under section 107(c)(3), punitive
damages also are available for noncompliance without sufficient
cause with a section 106 administrative order in an amount up to
three times that incurred by the Fund to perform the response
work required by the order.
MSee section 11(A), below.
61Note that if a 5106 unilateral order is used to compel
PRPs to conduct an RI/FS, a finding of a possible imminent and
substantial endangerment must be made before the preparation of
the baseline risk assessment. However, unilateral orders are
generally not recommended for ordering conduct of an RI/FS.
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OSWER Directive Number 9833.O-la
Courts have jurisdiction to review section 106(a)
administrative orders only in the following instances: (l) an
action is brought under section 107 to recover response costs or
damages or for contribution; (2) a judicial action is brought to
obtain injunctive relief under section 106; (3) penalties are
sought for noncompliance with the administrative order; (4) PRPs
petition for reimbursement under section 106(b)(2) after
compliance with the order; (5) or a citizen suit is brought
pursuant to section 310. See CERCLA section 113(h).
II. Judicial Settlement and Unilateral Enforcement
A.	Consent Decrees
The remedial action component of the RD/RA, if settlement is
.reached under section 122, is required to be implemented in a
consent decree under section 122(d)(1)(A). A removal, RI/FS
under section 122(d)(3), or remedial design settlement agreement
may be embodied in either a consent administrative order or a -
consent decree. Consent administrative orders are typically used
for removals and RI/FS agreements because they do not involve the
judicial process and often may be obtained more quickly than
consent decrees. Consent decrees, on the other hand, are
judicial documents that must be submitted to a court by the
Department of Justice (DOJ) and approved by the court.
Penalties available for noncompliance include stipulated
penalties, section 109 statutory penalties, section 106(b) daily
civil penalties, and treble damages where the PRP's noncompliance
with an administrative order leads to Fund-financed action.
B.	Section 106 Judicial Actions
If PRPs refuse to comply with a section 106 unilateral order
directing them to conduct a removal or a remedial activity, the
case may be referred to DOJ for judicial enforcement.
Referrals to DOJ are necessary whether penalties and/or
compliance with the terms of the order are sought.
In a section 106 judicial action, the Government may seek to
collect daily civil penalties from any person who, without
sufficient cause, willfully violates, or fails or refuses to
comply with a section 106 unilateral order. In addition, in a
section 107 cost recovery action, the Government may seek treble
damages from PRPs for their failure to comply with an
administrative order. However, there is one procedural
"some orders are enforceable by administrative penalty.
See section 109(a)(1)(D), (E), (b)(4)(5), and section 122(1).
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OSWER Directive Number 983.3.0-la
difference between securing PRP conduct of the response action
and obtaining monetary penalties from the PRPs. Administrative
orders are a necessary precondition for obtaining the desired
relief when monetary penalties are sought. PRPs must have failed
to comply with administrative orders before monetary penalties
may be obtained. Daily civil penalties or treble damages may
then be secured through a judicial action.
On the other hand, unilateral orders are not the only
alternative if PRP conduct of the response action is desired. If
settlement negotiations break down over the removal or remedial
action, and the Agency wishes to compel PRP cleanup, the case may
also be referred directly to DOJ. As previously mentioned, PRP
cleanup can be compelled through a section 106 judicial action.
Unilateral orders are therefore an option if the Agency wishes to
compel PRP conduct of the response action.
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United States	Office ot	Publication 9833 C-iaFS
Environmental Protection	Solid Waste and	May 1991
Agency	Emergency Response
&EPA Summary of "Guidance on
V) CERCLA Section 106(a)
UAOs for RD/RA"
Office of Waste Programs Enforcement	Quick Reference Fact Sheet
CERCLA Enforcement Division/GEB/QS-510	
Unilateral Administrative Orders (UAOs) require Potentially Responsible Parties (PRPs) to undertake
a cleanup which they would not agree to undertake under a consent order. If PRPs do not comply with a UAO,
EPA may fund the response and seek to recover response costs and punitive damages up to three times the
costs incurred by the Fund through a judicial referral. Judicial enforcement of a UAO can also compel
performance and recover penalties.
When issuing a UAO, Regions must ensure that the PRP search is complete and that documents
developed during the Remedial Investigation/Feasibility Study (RI/FS) support all the findings necessary
to support the issuance of a UAO.
This summary is intended for use only as a supplement, not a replacement, to the official "Guidance on
Section 106(a) Unilateral Orders for Remedial Design and Remedial Action," OSWER Directive #9833.0-la,
March 7,1990.
Statutory Requirements of Section 106
Orders
Section 106(a) of CIRCL A gives EPA the authority
to issue a UAO if an actual or threatened release
presents "an imminent and substantial
endangerment to public health, welfare, or the
environment," The order must clearly describe the
connection between the nature and location of the
release or threat of release, the possible
endangerment, and the response action. The
affected state must be notified before an order is
issued.
Courts may review section 106 orders only when
the Agency seeks to enforce the order, when the
Agency seeks penalties for violation of the order,
or when the PRPs seek reimbursement from EPA
of response costs incurred after complying with
the order. Judicial review of the adequacy of any
response action is limited to the administrative
record for the selection of the response action.
Possible Recipients of Unilateral Orders
Recipients of orders are no t limited tollable parties
under section 107 of CERCLA. In limited
circumstances, other parties, such as adjacent
landowners, can receive 106 orders.
Case*Specific Considerations
Criteria for the decision to issue an order include:
•	evidence sufficient to support liability of
each PRP (except as indicated above);
•	reasonable belief that PRPs are financially
viable;
•	well defined response action; and
•	evidence that PRPscan technically perform
response action with EPA oversight.

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In identifying the respondents, EPA should
consider each PRFs contribution to the site and
the PRPs' financial viability. The Agency should
name the largest manageable number of parties
but should not name any parties who would have
a valid defense against an EPA action.
Procedures for Issuing Unilateral
Orders
Special notice procedures for Remedial Design/
Remedial Action(RD/RA) invoke a 60 day
moratorium following issuance of the notice letter.
If the respondent submits a good faith offer within
the first 60 days, the Agency may not issue a UAO
for 120 days after the issuance of the notice letter.
If no settlement is reached by the 120th day, the
Agency is authorized to issue a UAO.
The Agency gives PRPs an opportunity to confer
with EPA, limiting the scope of the conference to
the implementation of the response action and'the
extent to which the respondent intends to comply.
Specialized Forms and Use of Unilateral
Orders
Different forms of UAOs may provide settlement
incentives.
Jn "carve-out" orders, the Agency sets aside a
portion of the cleanup for non-settlers, and may
orally indicate its intent to issue UAOs for that
portion of the work to all PRPs who do not sign a
settlement agreement. The Regions should consider
judicial enforcement or a Fund- financed response
before proposing a carve-out order to non-settlers.
In "parallel orders," when the Agency has reached
a complete settlement at a site with some, but not
all, of the PRPs, the Agency may issue*"parallel"
orders to the non-settlers. A parallel order directs
the non- settlers to coordinate and cooperate with
the settlers' cleanup activities, as described in the
consent decree. Under a parallel order, non-settlers
may be liable for penalties if they fail to contribute
equally to the response action.
Continued Negotiation After Issuance
of an Order
Even after aUAO is issued, PRPs may indicate a
desire to settle under a consent decree. The Regions
should not enter into further negotiations unless it
is likely that the PRPs will sign a consent decree
promptly.
The Agency may prefer tha t PRPs conduct response
actions under a UAO, ra ther than a consen t decree.
Response actions can be implemented more
promptly under a UAO, and prolonged
negotiations that might occur under a consent
decree are avoided.
Noncompliance with Unilateral Orders
If the PRPs do not comply with the UAO, the
Agency may either seek judicial enforcement or
perform a Fund-financed response action. The
decision to choose funding or litigation isba sod on
the availability of funds for the RA, the urgency
represented by the site, the amount of available
enforcement resources, and the degree to which
the case fits the criteria for judicial enforcement.
For more information or questions about this
document, please contact Paul Connor, Office of
Waste Programs Enforcement, Guidance and
Oversight Branch, at FTS 475-677C.

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