03/07/90
Guidance on CERCLA Section 106(a) Unilateral Administrative>
Orders for Remedial Designs and Remedial Actions>
OSWER Directive No. 9833.0-1a
MEMORANDUM MAR 7, 1990
OSWER Directive Number 9833.0-1a
SUBJECT: Guidance on CERCLA Section 106(a) Unilateral Administrative Orders
for Remedial Designs and Remedial Actions
FROM: /s/ Illegible, for Don R. Clay, Assistant Administrator
Office of Solid Waste and Emergency Response
/s/ 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/
1/ This memorandum and 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 Section 106(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.
Policies and procedures to be followed when issuing unilateral orders for
remedial actions are provided.
The memorandum has the following sections:
* Introduction
* The Role of Unilateral Orders in the CERCLA Remedial Process
* 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
* Possible Recipients of Unilateral Orders
* Case Specific Considerations
- Decision Whether to Issue an Order
- Determining the Identity of the Respondents
* Elements of Unilateral Orders
* Modification of Unilateral Orders
* Procedures Relating to Issuing Unilateral Orders
- Special Notice Procedures
- The Conference
* Specialized Forms and Use of Unilateral Orders
* Continued Negotiation After Issuance of an Order
* Noncompliance with Unilateral Orders
* 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. 2/
2/ This guidance does not specifically address CERCLA remedial action at
Federal facilities. See the "Federal Facility Compliance Strategy"
( Office of External Affairs, November 1988 ) for information about
CERCLA enforcement actions against Federal facilities, and the "Federal
Facilities Negotiation Policy," ( OSWER, August 1989 ).
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 ).
3/
3/ For 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 ).
A guidance on the issuance of CERCLA Section 106(a) administrative orders
from removal actions is under development.
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II. The Role of Unilateral Orders in the CERCLA 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 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 work 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 damages 4/ , and penalties. 5/
4/ CERCLA Section 107(c) (3) authorizes punitive damages from one to three
times the costs incurred by the Fund.
5/ CERCLA 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.
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
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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/
6/ 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 from 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 health 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 steps
to reduce exposure such 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 some circumstances. Where an ATSDR health
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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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. 7/
7/ 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.
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/
8/ See "Guidance on CERCLA Section 106 Judicial Actions," February 24,
1989 ( OSWER Directive number 9835.7 ).
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 decided 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. 9/
9/ The 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 be describe in general
terms the reasons for not going forward with the order. The written
explanation should come from the Regional Waste 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. ).
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
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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. 10/
10/ This guidance should not be construed as limiting in any way EPA's
enforcement discretion to issue Section 106 orders.
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. Legal 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 formalize removal and RI/FS
settlements. Unilateral orders may be issued to compel a party to undertake
conventional removal actions, RI/FS activities, 11/ or RD/RA work where a
settlement was not reached.
11/ 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 ).
Consent orders are not within the scope of this guidance. 12/
12/ CERCLA Section 122(d)(1)(A) requires that Agency agreements entered
into under Section 122 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 Entry," ( November 18, 1988 ) ( OSWER
Directive number 9835.4-2A ).
See Appendix A for more detail on when consent orders under section 106 may
be used.
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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 of 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
"facility" ), 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 issued, the affected State must be
notified. 13/
13/ Section 106(a) requires notice to the affected State before issuing an
administrative order. See additional discussion in this section, at
B(4).
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
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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/
14/ CERCLA Section 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" ).
See 40 CFR Part 302 for a list of hazardous substances. 15/
15/ Note that this list is not the exclusive list of hazardous substances.
Some RCRA ( characteristic ) wastes may not be listed in 40 CFR 302,
but would still be hazardous substances if they meet any of four
characteristic criteria under 49 CFR Section 261.20.
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 ). 16/
16/ The statute excludes some activities from the definition of a release.
CERCLA Section 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..."
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.
8
For RD/RA, the release or threat of a release will have been documented
during the RI/FS. 17/
17/ 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.
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 sewer 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 user 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 or 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 Endangerment
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. 18/
18/ B. F. 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 Goss, Inc., 630 F. Supp. 1361 ( D.
N.H. 1985 ); United States v. Northeastern Pharmaceutical and Chemical
Co. ( "NEPACCO" ), 579 F. Supp. 823 ( W.D. 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. Reilly Tar &
Chemical Corp., 546 F. Supp. 1100 ( D. Minn. 1982 ).
An endangerment is substantial if there is reasonable
9
cause to believe that someone or something may be exposed to a risk of harm
from a release or threatened release. 19/
19/ Conservation Chemical, at 195-96.
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/
20/ Conservation Chemical, at 175, 193-94; Ottati & Goss, at 1394.
The endangerment need not be immediate to be imminent.
Courts have held that there may be an imminent and substantial
endangerment when:
* Numerous hazardous substances are present at, and being released
into the environment from a site that is accessible to humans and
wildlife; 21/
21/ Conservation Chemical, at 175, 196-97.
* A relatively small quantity of hazardous substances that are toxic
at law dosage levels are substantially likely to enter the
groundwater and result in human and environmental exposure; 22/
22/ NEPACCO, 579 F. Supp. at 846.
* Contaminated groundwater flows in the direction of a subdivision
using well water; 23/
23/ United States v. Seymour Recycling Corp., 618 F. Supp. 1 ( S.D. Ind.
1984 ).
* Numerous hazardous substances have reached private drinking water
wells and have contaminated the groundwater and surface waters;
24/
24/ United States v. Hardage, 18 Env't Rep. Cas. ( BNA ) 1685 ( W.D. Okla.
1982 ).
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* Numerous hazardous substances are migrating from a facility and
have contaminated the soil and groundwater. 25/
25/ See Ottati and Goss, 630 F. Supp. 1361.
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 endangerment. 26/
26/ See the guidance "Risk Assessment Guidance for Superfund." As
updated, this guidance presently consists of the following two volumes:
the "Human Health Evaluation Manual," ( October 1989 ) ( OSWER
Directive number 9285.7-01a ), 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 number 9355.3-02 )
No additional resources should be required to support the 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. 27/
27/ CERCLA Section 101(27) defines State to include "the several States of
the United States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Marianas, and any other territory or
possession over which the United States has jurisdiction." It is EPA
policy to give Indian tribes equivalent notification.
The affected State is interpreted to be the State where the facility is
located, and in which the cleanup will be conducted. Notice is usually
given to the Director of the State's pollution control agency. For the
RD/RA, circumstances generally permit written notification to the State
prior to issuing the unilateral
11
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 when 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/
28/ Section 113(h) also allows judicial review in the context of Section
107 cost recovery actions, Section 310 citizen suits, and Section 106
injunctive action.
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)(1) 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
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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/
29/ Usually, the Agency uses the broad access authority in Section 104(e),
but has also been successful under Section 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 the public
interest may require." ) 697 F. Supp. at 94.
A unilateral order also may be issued to prevent a non-PRP from interfering
with a response action. 30/
30/ Note, however, that much of this guidance pertains to PRPs and may be
inapplicable to orders issued to non-PRPs.
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. 31/
31/ Not 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 Liable 32
32/ Unilateral orders may also be issued to parties other than those
listed in Section 107(a). See discussion in section IV.
Unilateral orders should be issued based upon adequate evidence of the
PRP's liability. 33/
33/ The 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 IV above. )
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. 34/
34/ It is important that the early requests for information concerning
PRPs be developed fully to support liability under Section 107 of
CERCLA. See the "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program," June 29, 1989 ( OSWER Directive number
9835.7 ).
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. 35/
35/ See 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 when determining the financial capability of
PRPs.
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,
especially 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 ).
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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 or
deliverables. Often, the order should also include a statement or 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. 36/
36/ Where there are multiple PRPs, the fact that they have formed some
type of PRP organization will not affect their individual liability.
When evaluating whether to name an individual PRPs 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 an order. In
addition, consideration should be given to whether potential
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respondents will have a valid "sufficient cause" defense 37/ or a section
107(b) defense. 38/
37/ 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.
38/ CERCLA 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 (1) 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.
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. 39/
39/ A Section 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 9833.0-1a ).
* Introduction and Jurisdiction
* Findings of Fact
* Conclusions of Law and Determinations
* Notice to the State
* Order
* Definitions
* Notice of Intent to Comply
* Parties Bound
* Work to Be Performed
* Failure to Attain Performance Standards
* EPA Periodic Review
* Endangerment and Emergency Response
* EPA Review of Submissions
* Progress Reports
* Quality Assurance, Sampling and Data Analysis
* Compliance with Applicable Laws
* Remedial Project Manager
16
* Access to Site Not Owned By Respondent(s)
* Site Access and Data / Document Availability
* Record Preservation
* Delay in Performance
* Assurance of Ability to Complete Work
* Reimbursement of Response Costs ( Optional )
* United States Not Liable
* Enforcement and Reservations
* Administrative Record
* Effective Date and Computation of Time
* Opportunity to Confer
* 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/
40/ 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.
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 be 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.
17
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.
41/ A PRP's notice of intent to comply applies to all of the requirements
of the order, beginning from the effective date and continuing through
all of the deliverables and activities required by 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 ROD 42/ ( and the RD if completed ), and toward that end, to
implement the statement of work ( SOW ). 43/
42/ As modified by an Explanation of Significant Differences document, or
ROD amendment, if applicable.
43/ Where a statement of work is used, it must be attached and
incorporated by reference into the order.
This section of the order should describe the content of and schedule for
the work plan, sampling and analysis plan, and site health and safety plan,
and should specifically require the respondent's performance to implement
these plans following EPA's
18
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 performance" section should also require the respondent
to provide prior written notification to the receiving state of any off-site
shipments of hazardous substances. 44/
44/ See "Notification of Out-of-State Shipments of Superfund Site Wastes,"
( September 14, 1989 ) ( OSWER Directive number 9330.2-07 ).
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 as 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
19
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/
45/ It is possible that information generated during RD/RA will meet the
criteria of Section 300.825 of the NCP relating to the addition of
documents to the record after the decision document is signed.
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 opportunity 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 VIII
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 VIII 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.
20
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 should 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/
46/ 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.
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 Notice 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
21
the response action itself. Special notice letters will be issued prior to
almost all orders for RD/RA. 47/
47/ The "Interim Guidance on Notice Letters, Negotiations, and Information
Exchange," 53 Fed. Reg. 5298 ( February 23, 1988 ) ( OSWER Directive
number 9834.10 ) provides the following examples of circumstances where
it would generally not be appropriate to issue special notice letters:
1) 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 been
identified at the conclusion of the PRP search; 4) where PRPs lack the
resources to conduct response activities; 5) where there are ongoing
negotiations; or 6) where notice letters were 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 "Interim Policy on CERCLA
Settlements Involving Municipalities and Municipal Wastes," ( OSWER
Directive number 9834.13).
Special notice procedures may affect timing of issuance of unilateral
orders. 48/
48/ If a special notice letter is not issued, the statutory moratorium is
not triggered, and the Agency can issue a Section 106 unilateral order
immediately.
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. 49/
49/ See the "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange," 53 Fed. Reg. 5298 at 5307 (1988) ( OSWER
Directive number 9834.10 ).
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's receipt of the special notice letter.
If special notice has been issued, Regional offices should be prepared to
issue unilateral orders at the conclusion of the special notice moratorium,
consistent with the following principles.
The Agency may issue unilateral orders immediately upon expiration of
the special notice moratorium. Therefore, 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 orders may not be
22
issued for a total of 120 days from issuance of the special notice letter.
50/
50/ Unilateral orders may not be issued during the moratorium. This
includes the issuance during the moratorium of unilateral orders with
delayed effective dates, even if they become effective after the
moratorium. An additional three days for transmission of the mail may
be allowed in addition to the 120 day period.
Where there has been a good faith offer, but settlement is not reached
as of the 120th day after issuance of the special notice letter, the Agency
should be prepared to issue unilateral orders. Only if settlement is likely
in the very near future may unilateral order be delayed. 51/
51/ See procedures described in the Interim Guidance entitled
"Streamlining the CERCLA Settlement Decision Process," dated February
12, 1987 ( OSWER Directive number 9835.4 ).
Unilateral orders with delayed 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 effective dates should be viewed as
encouraging the successful conclusion of negotiations. However, unilateral
orders with delayed effective dates are not to be considered "draft" orders,
and their terms are not negotiable. These orders indicate the Agency's
commitment to the response action, and the desire to secure its timely
implementation. When used in this manner, unilateral orders with delayed
effective dates serve as a form of deadline management.
B) The Conference
It is the Agency's policy to provide PRPs with an opportunity to discuss
with the Regional office issuing the order, implementation of the response
actions required by the order, and the extent to which the respondent
intends to comply. 52/
52/ Apart from implementation, the two major concerns that the PRPs may
have relate to their liability and to EPA's selection of the response
action. During the course of information exchange and PRP notice ( see
"Interim Guidance on Notice Letters, Negotiations, and Information
Exchange," 53 Fed. Reg. 5298 (1988) ( OSWER Directive number
9835.10 ), PRPs generally will have had an opportunity to assert that
they are not liable. EPA also provides PRPs opportunities to
participate in the selection of the remedial action. PRPs are provided
with an opportunity to 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 Sections 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.
EPA will not participate in the conference for the
23
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/
53/ The timing of judicial review of Section 106(a) orders is governed by
Section 113(h) of CERCLA. Also, PRPs may obtain judicial review after
they have fully complied with the unilateral order through a
reimbursement petition filed under Section 106(b) of CERCLA, wherein
PRPs may contest issues of liability or the selection of remedy.
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.
Respondent may appear in person or by an attorney or other
representative. PRPs will have the opportunity to ask questions and present
their views through legal counsel or technical advisor. 54/
54/ Attendance at the conference should be limited to EPA and the
respondent, and the respondent's attorney and/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
24
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. 55/
55/ A "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 ).
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.
25
Due to the uncertainties of when and how the work allocated to non-
settlors will be completed and of how many PRPs will choose to settle,
before a carve-out order to non-settlors is proposed during settlement
negotiations, the Regions should consider the possibility of having to
pursue the non-settlors or fund the work. 56/
56/ Factors to consider when deciding whether to propose a mixed work
settlement include the strength of the liability case against settlors
and any non-settlors. This includes litigative risks in proceeding to
trial against settlors, and the nature of the case remaining against
non-settlors after the settlement. Mixed work settlements should be
avoided where there is a significant potential for delays in cleanup
due to inadequate coordination or potential conflicts. See the Mixed
Funding Settlements guidance cited above.
In appropriate cases, the settlement agreement should provide for a delayed
schedule for the settlors to perform the carved-out work. By use of a
delayed schedule, the Agency may later seek the work from the settlors, if
the 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 carve-out order could be issued.
Unilateral orders may also serve as a settlement incentive when the
Agency has reached a complete settlement at the site with fewer than all
PRPs. When a complete settlement agreement is reached for conduct of the
remedial action with fewer 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
the settlors' cleanup activities, as described in the consent decree. 57/
57/ Regions must consider the implications of the possibility of non-
compliance with such an order.
The requirements of a parallel unilateral order match the response action
requirements set forth in the consent decree settlement. Where the response
action is properly conducted by the settlors, nonsettling recipients of
parallel unilateral orders may be liable for daily civil penalties if they
failed to contribute to the settlors' efforts by, for example, payment of
money of "inkind" contribution. Parallel unilateral orders benefit the
settlors because non-settlors may contribute to the PRP cleanup revenues
upon receipt of the unilateral order. Alternatively, if recipients of
unilateral orders fail to financially, or
26
otherwise, assist the settlors, unilateral orders may assist settlors to
bring contribution actions against the non-settlors.
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 settle with the Agency prior to
receipt of the unilateral order. Alternatively, during negotiations, PRPs
may indicate that they will not sign a consent decree, but may comply with a
unilateral administrative order. In this situation, the Region can decide
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 early initiation of the
response action through the absence of prolonged negotiations and an
expedited review process. 58/
58/ Administrative orders do not require judicial approval or public
comment. These procedures apply to consent decrees entered under
Section 122. See Section 122(d)(2).
While certain other benefits may accrue to the Agency under a consent decree
rather than a unilateral order, in the interest of early initiation of the
response action, the Agency may choose to require PRP conduct of a response
action under a unilateral order in lieu of a consent decree. 59/
59/ Under a unilateral order, PRPs will be subject to Section 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 Section 107
cost recovery lawsuit.
XI. Noncompliance with Unilateral Orders
In the event that PRPs do not submit their notice of intent to comply
letter by the date required, or do not adequately comply with a unilateral
order, the Agency must decide whether to immediately seek judicial
enforcement of the order, or to assume the lead on the project and conduct
the RD and/or the RA with Fund money. Agency funding of the project may be
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
27
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 nature 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, the Agency should consider
whether, based on information obtained after issuance of the unilateral
order, any of the 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.
28
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/
60/ See section II(A), below.
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 61/ , remedial designs or remedial actions.
61/ Note that if a Section 106 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.
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 may 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.
A-1
Courts have jurisdiction to review section 106(a) administrative orders
only in the following instances: (1) 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. 62/
62/ Some orders are enforceable by administrative penalty. See section
109(a)(1)(D), (E), (b)(4)(5), and section 122.
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
A-2
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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