Appendix 21 Final Model Administrative Order on Consent for Remedial Design

• Author: Allison Rumsey/Michael Daneker
• Pages: 647-686

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to conduct the RD until the AOC is expressly superseded by any subsequent CD.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.