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.
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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.
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.
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