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Round 3-13: Equitable Issuance of Unilateral Administrative Orders (UAOs)




Reform Description
This reform is designed to ensure that CERCLA �106 unilateral administrative orders (UAOs) are issued to all appropriate parties following consideration of the adequacy of evidence of the party's liability, financial viability, and contribution to the site. The Agency expects that ensuring the equitable issuance of UAOs will ultimately increase the likelihood of settlements and reduce private party litigation.

In FY97, EPA expanded this reform by establishing several documentation requirements, including documentation of rationales for proposing to exclude a party from an order and for not issuing an order to a late-identified PRP. The documentation requirement relating to excluded parties was phased in, applying in FY96 to orders for Remedial Design/Remedial Action only, and extended in FY97 to all UAOs, including UAOs for removals and Remedial Investigation/Feasibility Studies.

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Reform Status
check mark Implementation of this reform is complete.

EPA HQ will continue to review documentation prepared by Regional staff and determine its consistency with existing Agency policy.

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Results
In August 1996, EPA issued a memorandum reaffirming its policy of issuing UAOs to the largest manageable number of PRPs possible (see Documents below).

In FY97, approximately two-thirds of the 60 UAOs issued excluded certain parties from the order. A Headquarters team reviewed the documentation prepared by Regional staff and preliminarily concluded that the reasons cited for excluding certain PRPs from UAOs were generally consistent with existing Agency policy. In most cases, the excluded parties were not financially viable or had contributed only relatively minor amounts of waste.

For example, EPA Region 3 excluded parties that only contributed de minimis amounts of waste to the site. In some cases, parties were excluded because the government did not yet have sufficient evidence to establish a particular party's liability.

Regarding situations where the Regions propose not to issue UAOs to late-identified PRPs, the Regions demonstrated the spirit of this documentation requirement by issuing participate-and-cooperate orders in at least five cases during FY97.

EPA expects that PRPs will be more amenable to entering a settlement when the Agency ensures that they will otherwise face a UAO. Accordingly, in FY99, EPA continued to implement the UAO reform with Headquarters independently reviewing the documentation for nearly 200 UAOs to date.

Although EPA has not undertaken any significant effort to quantitatively measure the reform's impact on settlements or private party litigation, some anecdotal evidence suggests that stakeholders perceive positive impacts resulting from this reform. For example, some PRP representatives report that they have detected a positive change in Regional attitudes since the announcement of this reform, indicating an increased willingness to issue UAOs to larger numbers of PRPs.

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Success Stories
American Allied Additives Site, Cleveland, OH

In FY97, EPA Region 5 issued a UAO to 14 parties and, one month later, amended the order to include the other two parties connected to the American Allied Additives site. [FY97 Success]

Carolawn Site, Fort Lawn, SC

In FY97, EPA Region 4 issued a UAO to all 24 PRPs identified at the Carolawn site. [FY97 Success]

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Documents
Title: Memorandum: Documentation of Reason(s) for Not Issuing CERCLA Section 106 UAOs to All Identified PRPs
Date: August 2, 1996
Synopsis: This EPA memorandum reaffirms EPA policy to issue UAOs to the largest manageable number of PRPs after considering the adequacy of evidence of a party's liability, financial viability, and contribution to the site. The memorandum also establishes procedures requiring Regional staff to document their reason(s) for proposing that certain PRPs be excluded from UAOs and procedures for situations where Regional staff propose not to issue UAOs to late-identified PRPs.

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