United Stales
Environmental Protection
Agancy
Cities of
Solid Waste and '
&EPA
DIRECTIVE NUMBER: 9833. 02c
TITLE; ' Evaluation of, and Additional Guidance on,
1 Issuance of Unilateral Administrative Orders
) for RD/'RA
APPROVAL DATE:-
EFFECTIVE DATE:
ORIGINATING OFFICE: OWPE/OE
0 FINAL -
D DRAFT ' ,
LEVEL OF DRAFT
t C?A Signed byAA or DAA .
' D B Signed by Office Director
DC Review & Comment
REFERENCE (other documents):
S WER
OS WER OS WER
mDIRECriVE Dl
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" Name of Contact Parson
Arthur Weissman
Document Number:
9833- 2c ' "
Mail Coda
OS-510
Office
OWPE/GEB
Telephone
'" 475-6770
Subject Category: -
&EPA
U.S. Environmental Protection Agtncy
OWPE Directive Initiates Slip
Title: Evaluation of, and Additional Guidance on, Issuance of Unilateral
Administrative Orders (UAOs) for RD/RA
Summary of Document;
The purpose of this^directive is to present uou with the results of a recent
evaluation conducted' by the Office of Waste Programs Enforcement (OWPE) of the
selection process EPA uses in issuing UAOs to Potentially Responsible Parties
(PRPs) for RD/RA under CERCLA; and, based on the evaluation, to give further
guidance on the process we should use to select recipients of UAOs.
Keywords:
UAOs, PRPs, RD/RA
Draft Laval
Number Assigned: (data)
Document in Development: (date)
Sand out for Review and Comments: (date)
Sign by:
Does document supersede a previous one?
Does document supplement a previous one?
Q Yes
Q Yes
Q No
Q No
Distribute to:
3 Waste MgmtDiv.Dlr.1-X
3 RAs - Regs. 1-X *
Q Superfund Br. Chiefs
Q RCRA Br. Chiefs
Q States by HO Quarters
Q Other (fill inl Rag. Enf. Rr. Ch.T-X
Reg. Counsel' Br. Ch. I-X
Is document releasable to the public?
If no, cite FOI exemptions) in which document Is being
withheld from disclosure:
Q Yes
Q No
Will document become available at a later data.
If you know when, state approximate time frame.
Q Yes
Time frame:
Q No
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from OSWER Initiation request sheets:
Note: Key words should be taken from established key word list (see OWPE's Directive Coordinator).
Sand twenty copies of Directives to OWPPs Directive* Coordinator (Dartone Williams, maflcode OS-SJS) within S working days of
initial sign off by OWPE's off ica Director or the AA/OSWER
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\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
I.JM 2 0
OSWER Directive No, 9833.2c
MEMORANDUM
SUBJECT;
FROM:
TO:
Evaluation of, and Additional Guidance on, Issuance of
Unilateral Administrative Orders (UAOs) for RD/RA
Bruce M, Diamond,
Office of Waste Programs Enforcement
William A. White
Associate Enforcement Counsel
Office of Enforcement/Superfund
Director, Waste Management Division
Regions I, IV, V, VII, and VIII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III and VI
Director, Toxic and Waste Management Division
Region IX
Director, Hazardous Waste Division
Region X
Regional Counsel, Regions I-X
The purpose of this directive is to present you with the
results of a recent evaluation conducted by the Office of Waste
Programs Enforcement (OWPE) of the selection process EPA uses in
issuing UAOs to Potentially Responsible Parties (PRPs) for RD/RA
under CERCLA; and, based on the evaluation, to give further
guidance on the process we should use to select recipients of UAOs,
The evaluation was requested by the Deputy Administrator, who
was concerned about criticisms expressed by some PRP groups about
which PRPs at a site receive UAOs. There have been complaints, for
example, that EPA unfairly singles out "deep pockets" when issuing
UAOs.
The evaluation consisted both of interviewing Regional
managers to determine their approach to issuing orders, and of
examining each order issued in FY 1990 to determine the numbers of
PRPs issued general . notice, special notice, and UAOs, and the
reasons for any discrepancies among these numbers.
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Finjlings
Overall, the process Regions are using to select PRPs for UAO
issuance appears to be reasonable and fair. Not all PRPs
identified at a site are routinely included when UAOs are issued,
but the reasons for selection appear to relate to legitimate
matters of enforceability and sound enforcement discretion.
The evaluation found that in the majority of cases, UAOs were
issued to fewer than all the PRPs given general or special notice
at a site. UAOs were issued to all PRPs identified for'the site
at 10 out of the 44 sites for which UAOs for RD/RA were issued in
FY 1990. For these 10 sites, the number of PRPs is low (fewer than
10 PRPs). -.-.
i*"!
At the other 34 sites, where UAOs were issued to fewer PRPs
than were given either general or special notice, the difference
between the number of PRPs given notice and those issued orders
varies considerably. In some cases the discrepancy is very small;
for example, at one site all but one of the ten PRPs issued special
notice received UAOs. In other cases the difference is very large:
as few as a dozen PRPs may be given orders out of several hundred
PRPs given general notice. _ ,
The'results of both the survey of FY 1990 UAOs and the survey
of Branch Chiefs are consistent regarding the most important
factors in determining which PRPs receive UAOs. Strength of the
liability case and financial viability were given as the two most
important factors by the Branch Chiefs, and the individual surveys
of each site revealed that these were the two most frequent reasons
given for PRP selection. Also consistent between the surveys is
the relative significance of these two factors: strength of the
liability case is the foremost consideration for Branch Chiefs, and
it is given as a factor at over twice as many sites as viability.
Overall, strength of the liability case is a determinative factor
"in selecting among PRPs to receive orders in three-fourths of the
cases in which fewer than all PRPs received orders.t
Other important factors identified both in the survey of
Branch Chiefs and in individual orders include contribution by
volume, administrative practicality, and separate settlements.
Volumetric contribution was the third most frequently given factor
in explaining selection at sites. Clearly, there is a connection
between this factor and'administrative practicality, and both are
1 This does riot mean that liability was not considered in the
remaining one-fourth of the cases. Liability is always considered
in issuing UAOs, but in a quarter of the cases other factors (e.g.,
viability or administrative practicality) were responsible for the
decision not to issue an order to a given PRP.
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consistent with EPA guidance on use of UAOs^-rtwhich suggests issuing
orders to the largest manageable number of PRPs. In addition, in
several cases fewer PRPs were issued orders than were given notice
because the remaining PRPs settled separately for a portion of the
cleanup or costs involved.
The evaluation also revealed that recipients of orders
generally are responsible for a large majority of the waste covered
by the orders. Although not required under CERCLA's scheme of
joint and several liability, EPA generally strives to include those
PRPs to whom the bulk of the waste at issue may be attributed.
Conclusions aj.d Follow-up
Our evaluation indicates that there is not a serious problem
with the way Regions are using UAOs for RD/RA work. Consideration
of such factors as liability, viability, and, in certain cases,
volumetric contribution makes sense before we commit to the serious
action of issuing unilateral orders.
(
We have initiated some follow-up work to determine whether
bias toward large, financially solvent responsible parties may be
built into the system earlier in the PRP search process. There may
be good reasons to consider such PRPs, who tend to be large
contributors and for whom there are usually good records of waste
transactions. We want to be sure, however, that during the PRP
search large, solvent parties are not arbitrarily singled out to
the exclusion of other contributors or liable parties. Preliminary
results of an examination of the PRP search process have indicated
that such a bias does not exist.
Additional Guidance
Based on the findings of the evaluation, we are not
recommending any essential changes to the current process by which
PRPs are selected for receiving orders. Regions appear to be
selecting recipients of UAOs appropriately and in accordance with
the "Guidance on CERCLA Section 106(a) Unilateral Administrative
Orders for Remedial Designs and Remedial Actions," OSWER Directive
No. 9833.0-la.
We encourage you, however, to ensure that you avoid a bias,
or even the appearance of a bias, toward issuing orders only to
large, "deep pocket" PRPs. Although many such PRPs may be large
contributors and may be able to pay for response, we must continue
to make reasonable efforts to identify all parties with CERCLA
liability at a site and to arrange for or compel cleanup from as
many of them as practicable. On the other hand, we must ensure
that we have adequate evidence against all parties to whom we issue
orders, and we should consider the economic viability of order
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recipients.' Where it is necessary to select among 1-iable, viable
PRPs, volumetric contribution is a legitimate factor in reducing
the named parties to a practicable number. Other factors, of
course, may also enter into a decision to select among PRPs.
It is important to note that questions have also been raised
about issuing orders- to parties at the other end of the spectrum
clearly non-viable parties, such 'as destitute or nearly
destitute, individuals', who may be getting orders that in formal
terms require them to perform cleanup work costing millions of
dollars. Please be aware that the above-referenced guidance
suggests that orders involving expenditures of money should
generally not be issued to PRPs that lack any substantial
resources. j
'. TI .
Again, this is general advice, and site-specific factors may
make inclusion of persons of little means appropriate in individual
cases. In particular, it may be useful to issue 'UAOs to site
owners regardless of their financial circumstances. However, in
such cases it may sometimes be preferable to issue separate orders
for access or cooperation to indigent parties rather than to
include them in an overall response order.'
Similar caution is advisable when dealing with other
distressed or disadvantaged individuals who, from .an equitable
point of view, may not be appropriate recipients of a unilateral
order. ' ' : -.
i , /' ... . -
Further Information *-, ,.--
1 1 ' .
If you have any questions about the evaluation and follow-up
or about the guidance presented here, please call us or have your
staff contact Arthur Weissman in the Office of Waste Programs
Enforcement at -FTS 382-4826 or Leonard Shen in the" Office of
Enforcement at FTS 382-3107. We thank you for your cooperation in
this matter, and for your sensitivity to the important issues
involved. . " - r
. r , '
A .
Disclaimer '''"' _
The policies and procedures established in this document are
intended solely for the guidance of employees of the U.S.
Environmental Protection Agency. They are not intended and cannot
be relied upon to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States. EPA
reserves the right to act at variance with these policies and
procedures and to change them at any time without public notice.
cc: Regional Enforcement Branch Chiefs
Regional Counsel Branch Chiefs
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