oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
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its through 2nd Quarter and Strategy
inder of fr ' —
DIRECTIVE NUMBER: .9870.1
t
TITUB: ORQA Section 106 Unilateral RD/RA Enforcement:
AcciOTpHafl
for the Reminder of FY 1989
APPROVAL DATE: July 11, 1989
EFFECTIVE DATE: July 11, 1989
ORIGINATING OFFICE: OWPE, OECM
Q FINAL
O DRAFT
LEVEL OF DRAFT
— Signed by AA or OAA
D 8~S*»n«dbyOffic« Director
DC — Review & Comment
REFERENCE (other documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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i ij Unrttd StfctM Environmental Protection AcMncv
• ill Washington, DC 20*0 ;
OSWER Directive Initiation Reauest
1. Directive Number
9870.1
'! . , ! 2. Orlcrtnator Information
Nam* of Contact
Glenn Hard
rp*j»oiv
castle
Mail Cod*
OS-510
Office
OWPE
Telephone Code
382-5617
GERGLA) i Section 106 Unilateral RD/RA Enforcement:
Accomplishments through 2nd Quarter and Strategy for
the Remainder of FY 1989
4. Summary of Directive (include brief statement of purpose)
The purpose of this directive is to: 1) summarize Section 106.unilateral RD/RA
enforcement accomplishments in the first half of FY 1989;.and 2) describe a
strategy fqr the remainder of FY 198%,to enhance Section 106 enforcement.
consistent with the 90 Day Management Study of Superfund.
5. Keywords
i
Section 106: unilateral administrative qrders; judicial actions; 90 D^y Study
5«. Does This Directve Supersede rrevious Directive(s)? " '
b. Dots It Supplement Previous Oirective
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**. _^t°
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'. PR**
JUL I I 1989
OSWER Directive No. 9870.1
ENFORCEMENT CONFIDENTIAL ATTACHMENTS
MEMORANDUM
SUBJECT:
FROM:
TO:
CERCLA Section 106 Unilateral RD/RA Enforcement:
Accomplishments through 2nd Quarter and Strategy for
the Remainder of FY 1989
Cannon, Acting Assistant Administrator
JolifJ Waste and Emergency Response
CS^*S^^_
Edwara E. Keich, Acting A&JiUlunU-Administrator
Office of Enforcement and Compliance Monitoring
Addressees
Purpose
The purpose of this memo is to: 1) provide you a summary of
Section 106 unilateral RD/RA enforcement accomplishments in the
first half of FY 1989; and 2) describe a strategy for the
remainder of FY 1989 to enhance §106 enforcement consistent with
the 90 Day Management Study of Superfund. The Administrator is
firmly committed to building a credible Section 106 Program as
stated in the 90 Day Management Study.
Accomplishments through 2nd Quarter FY 1989
Eight Section 106 Unilateral Administrative Orders (UAOs)
for RD/RA were issued through 2nd Quarter of the fiscal year
(Attachment 1) against the annual SCAP target of 17. This is an
increase over last year's total of 2 UAOs issued for this same
period; a total of 14 UAOs for RD/RA were issued last fiscal
year. Like last year, most of the orders issued this year are
reported to be in compliance.
No Section 106 judicial referrals for unilateral enforcement
action for RD/RA were referred during the first half of the
fiscal year against the SPMS mid-year commitment of 3. This
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9870.1
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appears to be primarily the result of 1) the high rate of initial
compliance reported for the UAOs issued; 2) inability to yet
determine the final compliance status of some of these orders due
their issuance late in 2nd Quarter; and 3) settlements at some of
the identified candidate sites. The national annual SPMS
commitment in this area is 9.
Strategy for the remainder of FY 1989
The Strategy for the remainder of FY 1989 consists of four
major components: 1) attainment of numerical Program goals for
unilateral enforcement; 2) use of effective procedures to control
negotiation deadlines and to obtain PRP conduct of RD/RA; 3)
identification of candidates for unilateral enforcement; and 4)
consideration of making funding for RD/RA contingent upon using
enforcement as appropriate. This strategy will serve as a
transitional one to full implementation of the recommendations of
the 90 Day Study discussed below.
Numerical Program Goals
As noted in the previous section, the minimum Agency goal in
FY 1989 is to undertake the SPMS commitment of nine Section 106
Referrals Without Settlement or UAOs in Compliance for RD/RA
activities and the SCAP Congressional "Add-on" target of 17
additional Section 106 Unilateral Orders for RD/RA.
Accomplishments and resource utilization in this area will be
heavily scrutinized by Congress and others. For each additional
commitment, a Region received 0.7 FTE in this area. If
settlements are not achieved at the identified candidate sites,
Regions must follow up with UAOs and judicial referrals as
planned. If a settlement is achieved at a candidate site, a
Region is expected to take steps necessary to issue a UAO at an
alternate site where appropriate in order to meet its annual
target. Unless we can show progress in this area, we will
perpetuate the impression of a weak enforcement program and
Congress may not be as willing to provide additional resources in
the future. To report accomplishments in these areas, we are
relying on.CERCLIS. To ensure regional and Agency credit for
these accomplishments, the Regions must continue to make sure
these accomplishments are properly and routinely entered in
CERCLIS.
Use of Effective Procedures
This section outlines procedures for unilateral enforcement
that should be followed for the remainder of FY 1989. These
procedures are consistent with the recommendations of the
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9870.1
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Settlement Incentives/Disincentives workgroup last July.
Detailed draft guidance on the use of Section 106 unilateral
administrative orders will be available this summer for your
review. Final substantive guidance on §106 judicial actions was
issued February 24, 1989.
Regions should use UAOs in appropriate cases as a tool to
control negotiation deadlines and to compel implementation of
RD/RA where settlements are not obtained. We would expect most
cases to be appropriate for issuance of a UAO in the situations
outlined below where the liability and financial viability of the
PRPs have been established. While adequate regional resources
need to be available for development of the UAO and oversight of
its implementation, as noted in the previous section, adequate
resources were provided for attainment of the Agency's goal for
UAOs. This goal should therefore be met or exceeded.
To control negotiation deadlines, Regions should indicate to
the PRPs in writing a deadline for completion of negotiations and
indicate that a UAO may be issued or the remedial design funded
if the negotiations are not resolved by that time. In
appropriate cases, UAOs with delayed effective dates may be
issued after the expiration of the first 120-day special notice
moratorium if a negotiation extension has been granted. The
effective date of the UAO should coincide with the new deadline
date for completion of negotiations. At sites where special
notice is not issued and Section 122(a) letters are issued,
Regions may issue UAOs with delayed effective dates when
negotiations do not appear to be progressing toward settlement by
the specified deadline for completion of negotiations. The
Agency anticipates establishing more specific timelines for the
issuance of UAOs as part of the 90 Day Study implementation.
At sites where a negotiation deadline is reached, a UAO has
not yet been issued, and negotiations are unresolved, Regions
should take one of the following three actions:
1. If the negotiations appear close to resolution, Regions
may continue to negotiate without issuance of a UAO;
negotiations should be rapidly resolved, however, and
issuance of a UAO reconsidered if negotiations become
or are threatening to become protracted. Deadline
management procedures must be complied with.
2. If the negotiations do not appear to be close to
resolution and the case is appropriate for a UAO, a UAO
should be issued.
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3. If negotiations do not appear to be close to resolution
and the case is not appropriate as defined above for a
UAO, the remedial design should be promptly funded
without issuance of a UAO.
In all cases where settlement is not obtained and the Region is
not anticipating issuance of a UAO, the Regions must first
consult with the Director, CERCLA Enforcement Division (or the
Director, OWPE or his deputy) prior to funding of the remedial
design. This consultation will be done informally, by telephone,
to prevent any delay in moving appropriate sites to Fund-financed
cleanup. More specific procedures for consultation and for
documentation of the basis for not issuing a UAO will be
developed for implementation in FY 1990.
In situations where PRPs do not comply with a UAO,
enforcement of the order through a judicial referral for
injunctive relief should be considered. A case is considered
appropriate for judicial referral where the criteria for bringing
§106 judicial actions specified in the February 24, 1989
guidance on §106 judicial actions are favorably met, and adequate
resources are available for development of the referral and
processing of the case. As with the UAOs, adequate resources
have been provided and the Agency goal in this area should be met
or exceeded.
In other situations where PRPs do not comply with a UAO and
a judicial referral for injunctive relief is not appropriate,
penalties and treble damages must be considered in conjunction
with cost recovery.
Identification of New Candidates
As previously mentioned, we will be holding conference calls
or meetings with you or your staff to review the progress of the
remaining "good" candidates identified during the FY 1988
Initiative, as well as to identify new good candidates for UAOs
or judicial referral in FY 1989. The sites we will focus on
during the calls and visits are listed in Attachments 2 and 3.
The potential candidates include sites with ongoing RDs
where UAOs have not been issued. However, we do not want review
of any sites with an ongoing RD to cause delay in moving toward
targetted RA Starts for FY 1989. Therefore, discussion of any
sites in this category will be clearly in the context of what is
feasible, given our resource constraints.
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We will be calling you or your staff within the next week to
arrange these calls and meetings. Please be prepared to discuss
the quality of each case, any legal or factual issues that may
affect potential enforcement actions, settlement and litigation
strategy, schedules, and any outstanding resource needs to
support successful processing of these cases. From our joint
review, we hope to identify new candidates to supplement the
existing list.
90 Day Study
The recommendation from the 90 Day Study states: "Before
Fund-financed response can proceed at a site, a Region must issue
an administrative order, or provide a justification for its
decision not to issue an order. If the PRPs do not comply with
the order, the Regions should have the flexibility to determine
whether to proceed with Fund-financed response or judicial
enforcement action to compel compliance and exact penalties.
Regions will consult with Headquarters where PRPs do not comply
with an administrative order. In determining whether to enforce
the order, EPA will 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".
Headquarters will be developing an implementation plan to
address this recommendation. Regions in the meantime should be
guided by the recommendation, issue UAOs for RD/RA to the extent
practicable, and anticipate discussions with HQ on site-specific
candidates. The activities discussed earlier for the balance of
FY 1989 are intended to give us a good headstart on fuller
implementation of the 90 Day Study recommendations in FY 1990.
An aggressive unilateral enforcement effort is an essential
component of a successful Superfund program and is consistent
with the Program's statutory mandate, the intent of Congress, and
the 90 Day Study. Given the limited availability of remedial
action funds, use of unilateral enforcement is critical to ensure
funds are available for clean-up of sites where no PRPs have been
identified and to ensure the Program's credibility with the
public. Continued improvement is extremely important and should
be ensured by successful implementation of the strategy outlined
above.
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Please address any questions to Glenn Hardcastle (382-5617)
of the Compliance Branch in the Office of Waste Programs
Enforcement or to Belinda Holmes (382-2860) of the Office of
Enforcement and Compliance Monitoring, Waste Division. If there
are questions about coding the information in CERCLIS please call
Jerry Lappan (475-8259) of the Compliance Branch.
Attachments
Addressees: Regional Administrators, Regions I-X
Directors, Waste Management Division,
Regions I, IV, V, VII, and VIII
Directors, Hazardous Waste Management Division,
Regions III and VI
Director, Emergency and Remedial Response Division
Region II
Director, Toxics and Waste Management Division,
Region IX
Director, Hazardous Waste Division, Region X
Regional Counsels, Regions I-X
cc: CERCLA Enforcement Branch Chiefs, Regions I-X
Office of Regional Counsel RCRA/CERCLA Branch Chiefs
CERCLA IMCs, Regions I-X
David Buente, DOJ
Henry Longest, OERR
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Unilateral Administrative Orders
Issued for RD/RA
in FY 1989
Region Sit
I
II
Date
Issued
III
IV
V
VII
IX
X
Marathan Battery, 3/26/89
NY
Upjohn Facility, PR 3/30/89
9th Ave Dump, IL 1/13/89
Allied Chem. & 3/09/89
Ironston Coke, OH
Fields Brook, OH 3/22/89
Compass Ind. (Avery)3/29/89
VIII California Gulch, 3/29/89
CO
Tucson Airport, AZ 1/24/89
Value of
Remedy
0.95
4.95
25.0
13.0
7.0
12.0
23.8
6.5
9870.1
Attachment 1
Status
Compliance status
to be determined
Compliance status
to be determined
In compliance
In compliance
In compliance; for
RD and supplemental
RI/FS only
Compliance status to
be determined
In compliance
In compliance, may
convert to consent
decree settlement
Source: CERCLIS as of 4/10/89
Note: Table excludes UAO amendments
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9870.1
Attachments 2 and 3 contain
Enforcement Confidential information
and have been omitted from this copy.
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