Appendix 21 Final Model Administrative Order on Consent for Remedial Design

AuthorAllison Rumsey/Michael Daneker
Pages647-686
Page 647
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
ENFORCEMENT AND
COMPLIANCE ASSURANCE
January 6, 2005
MEMORANDUM
SUBJECT: Issuance of Final “Model Administrative Order on Consent for Remedial Design”
FROM: Susan E. Bromm, Director /s/
Office of Site Remediation Enforcement
Office of Enforcement and Compliance Assurance
TO: Office of Regional Counsel Superfund Branch Chiefs, Regions I-X
Superfund Division Directors
Enclosed for your use is OSRE’s final “Model Administrative Order on Consent for
Remedial Design” (“Order”). The Order signifies Headquarters’ first such document in this area
and incorporates comments received from Regions I, VI, and X, as well as the Department of
Justice.
As discussed in the March 30, 2004 memorandum when the document was initially
circulated for comment, the Order represents Headquarters’ attempt to expedite the Remedial
Design (“RD”) where appropriate. Although the Order bifurcates the Remedial Design from
Remedial Action (“RA”), which EPA generally disfavors, we envision this as a companion
document to the May 2001 Model RD/RA Consent Decree (“RD/RA CD”). In fact, when
entering into an AOC, EPA personnel should clearly specify to a settling party that it is obligated
to conduct the RD until the AOC is expressly superseded by any subsequent CD.
Instances may exist where it would be practical, if not necessary, to reach a settlement for
only RD. For example, an AOC may be used to allow the settling parties to begin work
immediately when a delay is anticipated in the negotiation of a RD/RA CD, or the lodging and
entry of a RD/RA CD in court.1 Remedial Designs are less costly to conduct than Remedial
1 Work in advance of CD negotiation, or lodging and entry, may be advisable given site-specific circumstances, such
as if imminent adverse weather conditions, i.e., the end of the construction season, will impede the Remedial Design if not
undertaken immediately. In addition, a June 17, 1999 memorandum, entitled “Negotiation and Enforcement Strategies to
Achieve Timely Settlement and Implementation of Remedial Design/Remedial Action at Superfund Sites,” set forth th e
following as factors OSRE may consider in separating the RD from the RA: the potentially responsible parties’ (“PRPs”)
willingness to also conduct the RA; the Region’s past experience with the PRPs at the Site; and whether separati ng the RD from
the RA would increase the prospects for a PRP-financed remedial action.
Page 648 Superfund Deskbook
Actions, and potentially responsible parties (“PRPs”) who cannot reach agreement to fund the RA
may quickly agree to fund the RD.
Therefore, we believe that the Order embodies a dual purpose in that it will: (1) allow for
expedited settlement when circumstances warrant; and (2) serve as a bridge settlement until a
RD/RA CD supersedes it. While we consider this document to be final, we are receptive to any
further comments that you may have. Also, please note that the Order may be amended to reflect
new guidances that OSRE releases in the future.
If you have any comments or questions regarding this document, please contact Ted Kim
of my staff, who may be reached by e-mail (kim.theodore@epa.gov), by phone at 202-564-1136,
or by fax at 202-501-0269. Thank you for your consideration in this matter.
Enclosure
cc:Regional CERCLA Program Branch Chiefs
Mike B. Cook, Office of Superfund Remediation and Technology Innovation
Scott Sherman, Office of General Counsel
Bruce S. Gelber, Environment and Natural Resource Division, U.S. Department of Justice
Elliott Gilberg, Office of Site Remediation Enforcement
Kenneth Patterson, Office of Site Remediation Enforcement
2
Final Model Administrative Order on Consent for Remedial Design Page 649
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION ___
IN THE MATTER OF: ADMINISTRATIVE ORDER ON
[Site Name] CONSENT FOR REMEDIAL DESIGN
[City or Town, County, State]
[Names of Respondents (if many, reference U.S. EPA Region ____
attached list)], CERCLA Docket No. ____
Respondents   Proceeding under Sections 104, 106, 107,
and 122 of the Comprehensive
Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42
U.S.C. §§ 9604, 9606, 9607, and 9622.
MODEL ADMINISTRATIVE ORDER ON CONSENT FOR REMEDIAL DESIGN
(January, 2005)
This model and any internal procedures adopted for its implementation and use are intended as
guidance for employees of the United States Environmental Protection Agency. They do not
constitute rulemaking by the Agency and may not be relied upon to create a right or a benefit,
substantive or procedural, enforceable at law or in equity, by any person. The Agency may take
action at variance with this model or its internal implementing procedures.

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