United States Environmental Protection Agency Oft ice of Solid Waste and Emergency Response Publication 9833.0-laFS May 1991 r/EPA Summary of "Guidance on CERCLA Section 106(a) UAOs for RD/RA" Office of Waste Programs Enforcement CERCLA Enforcement Division/GEB/OS-510 Quick Reference Fact Sheet 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 wi th 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 CERCLA 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 Recipientsof orders are not limited to liable 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. ------- 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. In "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 a UAO 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 that PRPs conduct response actions under a UAO, rather than a consent 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 is based on the availability of funds for the RA, the urgency represented by the site, the amount of available i 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. ------- |