RD/RA Unilateral Administrative Order
RD/RA UAO (.Doc/.Docx, 32 pp, 102 K)
The model remedial design/remedial action (RD/RA) unilateral administrative order (UAO) is for use by EPA staff when issuing RD/RA UAOs to potentially responsible parties (PRPs) under section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund). It is designed to be used in conjunction with the model RD/RA UAO SOW, which is the technical attachment to the UAO that sets forth the procedures and requirements for implementing the RD and RA under the UAO.
Issuance of Revised Model Remedial Design/Remedial Action Unilateral Administrative Order and New Statement of Work
Transmittal memorandum announcing the issuance of the revised model RD/RA Unilateral Administrative Order (UAO) and the new model RD/RA UAO Statement of Work (SOW). The transmittal memorandum also announces updates to the RD/RA Consent Decree (CD) SOW, originally issued on 9/29/14, to conform to the new UAO SOW.
Model RD/RA UAO SOW
The model RD/RA UAO SOW is the technical attachment to the UAO and sets forth the procedures and requirements for implementing the RD and RA under the UAO.
Guidance on Financial Assurance in Superfund Settlement Agreements and Unilateral Administrative Orders
Memorandum transmits guidance, model language, and sample documents that address financial assurance requirements in Superfund cleanup settlement agreements and unilateral administrative orders. The six sample CERCLA financial assurance documents for use in connection with UAOs include: (1) trust agreement, (2) guarantee agreement, (3) financial test sample letters, (4) payment bond, (5) performance bond, and (6) letter of credit, and are available in Word format from the Cleanup Enforcement Model Language and Sample Documents Database.
Evaluation of, and Additional Guidance on, Issuance of Unilateral Administrative Orders (UAOs) for RD/RA
Memorandum presents results of evaluation of the selection process EPA uses in issuing UAOs to Potentially Responsible Parties (PRPs) for RD/RA under CERCLA. OSWER Dir. 9833.2c
Guidance on CERCLA Section 106(a) Unilateral Administrative Orders for Remedial Designs and Remedial Actions
Guidance encourages use of CERCLA 106(a) unilateral administrative orders for remedial designs and remedial actions. OSWER Dir. No. 9833.0-1a.
Update to potential maximum penalty paragraph
- Modified ¶ 59 – to explain that the maximum amount may increase in the future pursuant to adjustments for inflation. Also indicates that the maximum penalty amount depends on when the court assesses any such penalty and would be the most recent maximum, as set forth in 40 CFR § 19.4. Deleted discussion of how EPA plans in the future to adjust its matrix of less-than-maximum amounts for settlement negotiations, given that it is irrelevant in this non-settlement context.
Language updates to property requirement and payment information instructions. General formatting updates.
- • Modified reference to CERCLA in various section to add “as amended” after statutory title.
• Modified definition of RCRA to add “as amended.”
• ¶¶ 35(c)(5) and (d)(1) - To address an unintended inconsistency arising from the settling party’s obligations set forth in paragraphs (c)(1) and (d)(1) by the deadlines prescribed in paragraph (c)(5), deleting subparagraph (c)(5) and incorporating the deadlines into paragraph (d)(1).
• ¶ 35(d)(1) - Changed the first sentence in subparagraph (d)(1) in the above to models to read: “[SDs or Respondents, whichever term is used in the respective model] shall submit all draft Proprietary Controls and draft instruments addressing Prior Encumbrances to EPA for review and approval within  days after the Effective Date; or if an initial waiver request has been filed, within  days after EPA’s determination on the initial waiver request; or if a final waiver request has been filed, within  days after EPA’s determination on the final waiver request.”
• ¶ 51(a) – Updated and simplified payment instruction information.
• ¶ 59 – Updated references and penalty amount related to the Civil Monetary Penalty Inflation Adjustment Rule and maximum daily penalty under Section 106(b) of CERCLA.
Updated payment information
- Updated ¶ 51.c to reflect correct address and contact information for automated clearinghouse (ACH) payment.
Minor updates to Paragraphs 34 and 59
- ¶ 34 - Paragraph 34 is revised to add a final sentence requiring Settling Defendant (SD) Respondents to send any access or use restriction agreements to EPA and the state, if applicable.
• ¶ 59 - Paragraph 59 is updated to add a note at end of the paragraph regarding annual inflation adjustment for civil penalties.
Corrections and formatting
- Modified Sections VII (Opportunity to Confer) and VIII (Effective Date) (Paragraphs 22-24) to clarify the process and timing by which Respondents may request a conference and/or submit written comments on the Order.
• Corrected typographical error in ¶ 60(e) (delete “not” from “[if Section XV (Payment of Response Costs) not included:]”).
• Made minor formatting updates.
Conforming changes and formating updates
- The changes outlined below are the result of model documents issued 9/29/2016:
• UAO updated with conforming changes in accordance with Issuance of Revised Model Remedial Design/Remedial Action Unilateral Administrative Order and New Statement of Work: ¶ 29 – use objective criteria to review PRP contractor qualifications; ¶¶ 37 and 35.f) – delete requirement for owner respondent to reach access/use restriction agreement with transferee and move remainder of paragraph to new ¶ 35.f; ¶ 38 - delete requirement to cooperate with implementing ICs selected in a future decision document; ¶ 54 -- change requirement to retain records claimed to be privileged or protected from until dispute resolved in respondents’ favor to until EPA or a court determines that records are privileged or protected; and ¶ 55 – clarify CBI claim process.
• UAO updated with conforming changes in accordance with Issuance of Revised Model Consent Order and New Model Unilateral Order for Remedial Investigation/Feasibility Study and Updated Financial Assurance and Insurance Language for All CERCLA Response Action Settlements and Unilateral Administrative Orders: ¶¶ (new) 39-46– update financial assurance section user note and clarify financial test and corporate guarantee mechanisms; ¶ 59 – increase civil penalty amount per Civil Monetary Penalty Inflation Adjustment Rule; and ¶ 48 – update insurance to include minimum coverage amounts and to require identifying information with submittals.
Modification to Paragraph 39.a(3) and URL Updates
- ¶ 39.a(3): Changed “identifying this Order and the date this Order was entered by EPA” to “identify the EPA docket number and Effective Date of this Order” for clarity and to conform with Removal UAO model paragraph 45.a(3). Reviewed and updated existing URLs.
Technical and editorial corrections and clarification
- Updated existing Agency URLs throughout the document – pp. 3, 14. ¶ 26 – editorial correction and clarification: changed “Paragraph” to “Section” in line 4 and changed “notification” to “notice of intent to comply” in lines 5-6 of the paragraph. Paragraph 28.a. – editorial correction: changed citation from 42 U.S.C. § 6921(e) to 42 U.S.C. § 9621(e).
- Updated URL of Superfund Interest Rate Web page in “Interest” definition of model.