UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUL 10
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Transmittal of Enforcement Project Management Handbook
FROM: Bruce M. Diamond, Directoi
Office of Waste Programs Enforcement
TO: Distribution
The purpose of this memorandum is to transmit the final
version of the Enforcement Project Management Handbook to
Headquarters and Regional offices.
This Handbook has been prepared as a basic reference and
training manual to assist Remedial Project Managers (RPMs) and
On-Scene Coordinators (OSCs) in planning, negotiating and managing
potential responsible party (PRP) searches and PRP-lead actions.
It is intended to provide an overview of each phase of the
enforcement process and to discuss specific roles and
responsibilities of the RPM/OSC in the process.
Procedures and information contained in this document are
based on existing and draft EPA policy and guidance. Specific
documents are referenced as sources of additional information on
particular topics.
For additional information on the Handbook or to obtain extra
copies, contact the training specialist in the Compliance Branch
of CERCLA Enforcement Division at FTS 382-4819.
Attachment
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DISCLAIMER
The policies and procedures established in this document are intended solely for the guidance of employees
of the U.S. Environmental Protection Agency. They are not intended and cannot be relied upon to create
any rights, substantive or procedural, enforceable by any party in litigation with the United States. EPA
reserves the right to act at variance with these policies and procedures and to change them at any time
without public notice.
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ACKNOWLEDGEMENTS
This document was prepared by the Compliance Branch of CERCLA Enforcement Division in
EPA's Office of Waste Programs Enforcement. Debby Thomas served as EPA's Project Coordinator.
The project was directed by Lloyd Guerci, Director CERCLA Enforcement Division, with the assistance
of Mike Kilpatrick and Frank Russo, Compliance Branch Chiefs.
The following people also provided significant input in the development or review of specific
chapters:
EPA Headquarters
Frank Biros, Nellie Boone, Linda Boornazian, Patty Bubar, Susan Cange, Carrie Capuco, Waiter
DeRieux, Dan Dickson, Tony Diecidue, Bill Eckroade, Donna Gerst, Bruce Gruenwald, Ed Hanlon,
Johanna Hunter, Lee Jennings, Sven-Eric Kaiser, Randy Kaltreider, Julie Klaas, Emil Knutti, Jerry
Lappan, Debbie Lebow, Marlene Lemro, Rashalee Levin, Charles Openchowski, Dottie Pipkin, Rick
Popino, Doug Sarno, Betsy Shaw, Sherry Sterling, Steve Suprin, Debbie Swichkow, Candace Wingfield,
Jim Woolford, Brad Wright and Betty Zeller.
EPA Regional Offices
Mike Bishop, Robin Coursen, Jody Crane, David Duster, D. Henry Elsen, Elizabeth Evans, Eric Finke,
Barbara Hanson, Stan Hitt, Rick Karl, Lynn Kersher, Sharon Kersher, Kathy Land, Barry Levine,
Carole Macy, Sam Marquery, Sharon Metcalf, Elizabeth Mullin, Doug Mundrick, Carole Peterson, Greg
Phoebe, Peter Shaw, Kathleen Siftar, Alexis Strauss, Ann Umphres, Sam Vance, Ann Vogel, Ken
Wallace, and Carrie Wehling.
In addition, Region I staff, notably Ira Leighton, Dennis Hubner and Susan Siversky, produced a two-
volume manual entitled Enforcement and Remedial Activities under SARA which was used as a model for
several sections of this handbook.
Department of Justice (DOJ)
Anna Swerdel coordinated the review and comment process at DOJ.
The handbook was produced by Booz, Allen and Hamilton Inc. under EPA contract No. 68-01 -
7331. Anne Nelson served as Project Manager for Booz, Allen and Hamilton Inc.
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ENFORCEMENT PROJECT MANAGEMENT HANDBOOK
Table of Contents
Acronyms List
i. Preface
I. Introduction
II. Removals
III. Comprehensive Site Planning
IV. PRP Search, Notification, and Information Exchange
V. RI/FS Negotiations/Settlement
VI. RI/FS Implementation
VII. Selection of Remedy
VIII. RD/RA Negotiations/Settlement
IX. RD/RA Implementation
X. Operation and Maintenance
XI. Site Completion/Deletion
XII. Cost Recovery
XIII. Community Relations
XIV. State Enforcement
XV. Records Management
XVI. Case Budget/Contracts
XVII. SCAP/SPMS Cycle
Index
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ACRONYMS
AA, OSWER
AAG
AO
ADA
AOC
AOU
ARARs
ARCS
ATSDR
BODR
CA
CB
CD
CEAT
CERCLIS
Cl
CLP
CPM
CRC
CRC
CRI
CRP
Assistant Administrator for Solid Waste and Emergency Response
Assistant Attorney General
Administrative Order
Advice of Allowance
Administrative Order on Consent
Unilateral Administrative Orders
Applicable or Relevant and Appropriate Requirements
Alternative Remedial Contracts Strategy
Agency for Toxic Substances and Disease Registry
Basis of Design Report
Cooperative Agreement
Case Budget
Consent Decree
Contract Evidence Audit Team
Comprehensive Environmental Response, Compensation, and
Liability Information System
Civil Investigator
Contract Laboratory Program
Critical Path Method
Community Relations Coordinator
Cost Recovery Coordinator
Community Relations Implementation
Community Relations Plan
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CWA - Clean Water Act
DOI - Department of the Interior
DOJ - Department of Justice
DQO - Data Quality Objective
EA - Endangerment Assessment
EE/CA • Engineering Evaluation/Cost Analysis
EERU - Environmental Emergency Response Unit
EMSL - Environmental Monitoring and Systems Laboratory
EPIC - Environmental Photographic and Investigation Center
EPM - Enforcement Project Manager
ERNS - Emergency Response Notification System
ERS - Environmental Response Services
ESD - Environmental Services Division
Explanation of Significant Difference
FIT - Field Investigation Team
FMD - Financial Management Division
FMO - Financial Managment Office
FMS - Financial Management System
FR - Federal Register
FSP - Field Sampling Plan
FTE - Full-Time Equivalent
GFO - Good Faith Offer
GNL - General Notice Letter
HQ-FMO - Headquarters - Financial Management Office
MRS - Hazard Ranking System
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HSCD - Hazardous Site Control Division
IAG - Inter-Agency Agreement
IDC - Indirect Cost
IMC - Information Management Coordinator
LOE - Level of Effort
LIRA - Long-Term Response Action
NBAR - Non-Binding Preliminary Allocations of Responsibility
NCR - National Contingency Plan
NEIC - National Enforcement Investigation Center
NOAA • National Oceanic and Atmospheric Administration
NPB - OECM National Project Branch
NPL - National Priorities List
NRC - National Response Center
NSD • Negotiation Support Document
O&M - Operation and Maintenance
OECM - Office of Enforcement and Compliance Monitoring
OERR - Office of Emergency and Remedial Response
OGC - Office of General Counsel
OIRM - Office of Information Resource Management
OMB - Office of Management and Budget
OMSE - Office of Management Systems and Evaluation
ORC - Office of Regional Counsel
OSC - On-Scene Coordinator
OU - Operable Units
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OWPE
FDD
PNRS
PRAP
PRP
QA/QC
QAPP
QAPP/FSP
RA
RCRA
RD
RI/FS
ROD
RP
RRT
SAIC
SAP
SARA
SCAP
SDC
SE
SETS
SIF
SMOA
SMP
Office of Waste Programs Enforcement
Preauthorization Decision Document
Preliminary Natural Resource Surveys
Proposed Remedial Action Plan
Pontentially Responsible Parties
Quality Assurance/Quality Control
Quality Assurance Project Plan
Quality Assurance Project Plan/Field Sampling Plan
Remedial Action
Resource Conservation and Recovery Act
Remedial Design
Remedial Investigation/Feasibility Study
Record of Decision
Responsible Party
Regional Response Team
Special-Agent-ln-Charge
Sampling and Analysis Plan
Superfund Amendments and Reauthorization Act
Superfund Comprehensive Accomplishments Plan
Settlement Decision Committee
State Enforcement
Superfund Enforcement Tracking System
Site Information Forms
Superfund Memorandum of Agreement
Site Management Plan
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SNL
SOW
SPMS
SPO
SPUR
TAG
TAT
TBC
TBD
TDD
TDD-AOC
TES
TESWATS
TSC
TSCA
USCG
WAM
Special Notice Letter
Statement of Work
Strategic Planning and Management System
State Project Officer
Software Package for Unique Reports
Technical Assistance Grant
Technical Assistance Team
To-Be-Considered Material
To Be Determined
Technical Directive Document
Technical Directive Document - Acknowledgement of Completion
Technical Enforcement Support
Technical Enforcement Suppport Work Assignment Tracking
System
Transportation Systems Center
Toxic Substances Control Act
United States Coast Guard
Work Assignment Manager
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PREFACE
Overview
Policies and Guidance
RoleofRPMs
Structure
This handbook has been prepared primarily to assist EPA Remedial Project
Managers (RPMs) in planning, negotiating, and managing PRP-lead actions.
However, other field personnel such as On-Scene Coordinators (OSCs) may
also find the handbook useful for their purposes. It describes the roles and
responsibilities of the RPM in identifying and communicating with Potentially
Responsible Parties (PRPs); coordinating with the community, States, and
natural resource trustees; negotiating for site cleanup; initiating
administrative and judicial enforcement actions; selecting site remedies;
recovering EPA's cleanup costs; and overseeing PRP-lead response actions.
The description of roles and responsibilities is based on the usual progression
of events at an average site. The handbook is also meant to complement
EPA's Superfund Federal-Lead Remedial Project Management Handbook and
Superfund State-Lead Remedial Project Management Handbook by serving
as a reference guide on enforcement actions that may be taken or
considered during each step of the removal and remedial processes.
Procedures and information contained in this document are based on existing,
draft, and, in some cases, proposed EPA policy and guidance. The
handbook, however, is not intended to replace Agency guidance; nor is it
intended to stand alone. Instead, the chapters that follow summarize in a
single document information concerning EPA's national enforcement program
and the role of RPMs in that program. The reader should bear in mind that
to keep this document to a moderate length, some oversimplification was
necessary. Throughout the handbook, the reader is referred to specific,
detailed policies and procedures. As appropriate, the reader should use these
references to supplement the information presented in this handbook.
The emphasis of this handbook is on the role of the RPM in the enforcement
process. It is recognized, however, that Regional differences exist in defining
that role. For example, in many Regions, cost recovery activities are
handled by staff without remedial project management responsibilities.
Therefore, when the term "RPM" is used in this handbook in connection with
specific activities, the reader should bear in mind that these activities are
ones for which the RPM may be responsible. RPMs should consult with
Regional managment on the scope of their specific responsibilities.
The handbook addresses the removal enforcement process and the phases
of the remedial planning and implementation process from the point of the
baseline PRP search, which is generally conducted when the site is listed on
the NPL, to the point of completion of remedial activity at a site and the
site's deletion from the NPL The handbook has been organized to follow the
overall progression of these phases.
In addition to chapters that discuss the various phases of the remedial
process, the handbook includes eight additional chapters and an introduction.
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Format
Applicability
The additional chapters present enforcement topics that either are not a
part of the remedial process or are relevant to many steps in the process.
These chapters cover enforcement activities associated with cost recovery,
community relations, State enforcement, records management, case budget
and contracts, and the SCAP/SPMS cycle and CERCLIS.
The chapters are organized to provide a description of the phase of site
cleanup or specific enforcement activity; a chronology of procedures for
which the RPM has responsibility; associated planning and reporting
requirements; a discussion of potential problems and possible resolutions; and
a reference section, which lists titles of relevant policies and guidance
documents, and contacts for further information. This organization of
information facilitates a pro-active management style of anticipating and
resolving problems before they adversely impact project costs, schedules, or
technical quality.
While the handbook is designed for both new RPMs and RPMs who have
experience with the enforcement program, it is hoped that it will also help
clarify for other EPA personnel the many technical, enforcement, and
management tasks required to complete a PRP-lead site. This handbook is
for internal EPA use only. It does not create rights in any party and may
not be quoted as an authoritative source by any PRP.
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INTRODUCTION
This introduction provides a broad overview of the Superfund enforcement program. The
chapter is divided into four major sections:
Goals
Background
Overview
Players
Each of these is presented below.
I. GOALS OF THE ENFORCEMENT PROGRAM
The overall goal of the Superfund program is to protect human health and the
environment through timely and effective site remediation at the maximum number of
sites. Enforcement plays a major role in the process.
Obtaining PRP A primary goal of the enforcement program is to obtain voluntary settlement, or if
Response necessary, to compel Potentially Responsible Parties (PRPs) to implement site cleanups.
The primary tools used to meet this goal are the administrative order and judicial
enforcement authorities of section 106 of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) and the settlement provisions of section 122.
These authorities are discussed in more detail in Chapter V, RI/FS Negotiations and
Chapter VIII, RD/RA Negotiations.
Overseeing PRP Once the PRP has agreed to take response actions at a site, the goal of the
Response enforcement program is to ensure that the studies or cleanup activities are performed
correctly and in accordance with the order or decree, and the statute, NCP and relevant
guidance. In addition to their oversight, Remedial Project Managers (RPMs) use the
authority in section 104 of CERCLA for third party oversight of PRP-conducted RI/FS
activities to ensure that this goal is met. Oversight responsibilities are discussed in
Chapter II, Removals; Chapter VI, RI/FS Implementation; and Chapter IX, RD/RA
Implementation.
RecoveringEPA's In situations where EPA has performed removal or remedial activities at the site or
Costs incurred any enforcement costs, the enforcement program's goal is to recover those
costs from the PRPs. Cost recovery actions are essential both to replenish the Fund
and to deter other PRPs from trying to avoid responsibility for performing response
actions themselves. The authority for recovering costs is provided by section 107 of
CERCLA. Cost recovery is discussed further in Chapter XII, Cost Recovery.
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Liability
Settlement and
Enforcement
Provisions
II. PROGRAMMATIC BACKGROUND
CERCLA gives EPA a broad set of tools with which to clean up hazardous waste sites.
These include a variety of enforcement tools, such as administrative order authority,
judicial enforcement authority, strong liability provisions, and the authority and funding to
take direct action to clean up sites.
Section 107 of CERCLA outlines the basic liability provisions of the enforcement
program. It identifies four classes of PRPs:
Current facility owners and operators
Past facility owners and operators at the time of disposal of a hazardous
substance
Persons who arranged for treatment or disposal of hazardous substances (e.g.,
generators)
Transporters of hazardous substances who selected the disposal site.
CERCLA is a strict liability statute, which means that PRPs are liable without regard to
negligence or fault. In addition, the courts have held that anyone in the classes of liable
persons set forth in section 107 of CERCLA may be held liable for the entire cost of site
cleanup, unless it can be shown that the harm or threat is "divisible" (generally meaning
that there are two or more physically separate areas of contamination). This concept,
known as "joint and several liability," is a strong tool that EPA can use to encourage
PRPs to agree to perform cleanups. It is discussed in more detail in Chapter IV, PRP
Search, Notification, and Information Exchange, and Chapter XII, Cost Recovery.
CERCLA provides a broad range of enforcement authorities or provisions that EPA can
use to effectively meet the goals of the Superfund program. These include authorities to
order PRPs to clean up sites, to negotiate settlements with PRPs to fund and/or
perform site cleanup, and to take legal action if the PRPs do not perform and/or pay for
cleanup.
Settlements for removals are usually finalized by administrative orders on consent
(consent orders). Similarly, settlements for RI/FS are generally by consent orders.
Settlements for RD/RA are more complex and are set forth in consent decrees that
must be approved by the Department of Justice and a court.
Under CERCLA, EPA may use a variety of special settlement tools. In mixed funding
settlements, settling PRPs and EPA contribute to the response action and EPA generally
pursues viable non-settlors for the costs EPA incurred. In de minimis settlements. EPA
may settle with relatively minor contributors when the settlement involves only a minor
portion of the response costs and when the amount of waste represents a relatively
minor amount and is not highly toxic compared to other substances at the facility.
Additionally, EPA is authorized to utilize preliminary Non-binding Allocations of
Responsibility (NBARs) to promote settlement. NBARs represent a recommended
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Enforcement
Authority
Other Statutes
Programmatic
Goals
scheme for allocating costs among the PRPs for settlement purposes only, are not
binding, and cannot be admitted as evidence in court. These settlement tools are
discussed fully in Chapter V, RI/FS Negotiations and Chapter VIII, RD/RA Negotiations.
If the PRPs do not settle with EPA, section 106 of CERCLA gives the Agency the
authority to unilaterally order the PRPs to conduct the response. In addition, with the
assistance of the Department of Justice, EPA may sue the PRPs for a court order
under section 106 that requires the PRPs to perform the cleanup. Under section 107,
EPA may sue PRPs for cost recovery. These authorities are discussed further in
Chapter VIII, RD/RA Negotiations, and Chapter XII, Cost Recovery.
In addition to the authorities provided by CERCLA, the Agency may, in some instances,
use authorities provided by other environmental laws (although the applicability of each
of these other laws is subject to specific legal requirements which are beyond the scope
of this handbook). For example, under the Resource Conservation and Recovery Act
(RCRA), the Agency can order owners and operators of operating and closing hazardous
waste facilities to investigate any potential leaks and to clean up the facility if
necessary. The Toxic Substances Control Act (TSCA) and its regulations can be used
by the Agency to impose conditions on the handling of particularly hazardous substances,
such as asbestos and PCBs. In addition, in some cases where releases affect surface
waters, the provisions of the Clean Water Act (CWA) can be used to impose fines and
require cleanup. These other statutes also provide the basis for many of the applicable
and relevant and appropriate standards (AFlARs) on which cleanup levels are based in
site records of decision. ARARs are also mentioned in Chapter VII, Selection of Remedy.
SARA added statutory deadlines for the initiation of response activities. These
deadlines include:
275 new RI/FS starts by October 17,1989, and if this deadline is not met, then
also:
175 new RA starts by October 17,1989 and
200 additional RA starts by October 17,1991.
Because funding for EPA cleanups is limited, the Agency cannot meet these statutory
goals with Fund-lead cleanups alone. Thus, the enforcement program must ensure that
PRPs commit to perform cleanups at a substantial portion of sites. If planned properly,
negotiated settlements do not take longer to implement than Fund-lead activity; the key
elements are good planning and effective deadline management.
The enforcement authorities provided by CERCLA offer a strong incentive to PRPs to
settle with EPA. Settlement may be a faster and less-costly alternative to litigation,
and can alleviate the risk to the PRPs of becoming involved in costly litigation or being
assessed treble damages.
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PRP Searches
Negotiations
Settlements
III. OVERVIEW OF THE PROCESS
The Superfund program involves an integrated process of both enforcement and Fund-
financed activities aimed at achieving the overall goal of site cleanup. Exhibit 1-1
presents a broad overview of the relationships between the various enforcement and
Fund-financed activities. In general, EPA identifies PRPs that may be liable for site
reponse, attempts to negotiate agreements with the PRPs to perform the studies or
cleanup, enters into settlements with the PRPs if they agree, and oversees the site work
that the PRPs perform under the settlement. If the PRPs do not settle, EPA may issue
an order or sue the PRPs to perform and/or pay for the cleanup, or EPA may conduct
the cleanup itself and later pursue cost recovery from the PRPs. Each of these steps is
discussed briefly below, and in more detail in the chapters that follow.
When a site is proposed for listing on the NPL, EPA initiates a PRP search to identify
any companies or individuals (PRPs) that may be liable for the costs of cleaning up the
site. In addition to the RPM and contractors, the PRP search also may involve civil
investigators and Office of Regional Counsel. The search involves detailed reviews of
State, EPA and site records; interviews with site operators and transporters; and
requests for information from those who may have been involved with the site. The
PRPs that are identified by this process are then notified of their potential liability and
are informed that they will have the opportunity to negotiate with EPA to conduct site
cleanup. Chapter IV, PRP Identification/Notification, contains a detailed description of
the PRP search process.
Formal negotiations with PRPs usually begin at two stages in the cleanup process; before
the Remedial Investigation/Feasibility Study (RI/FS) and after EPA releases the
Proposed Plan for public comment, or generally no later than when EPA signs the Record
Of Decision (ROD). The purpose of these negotiations is to reach agreement that the
PRPs will perform the RI/FS or the Remedial Design/Remedial Action (RD/RA) and pay
past costs. During the course of negotiations, EPA and the PRPs exchange information
on site conditions, the PRP's liability, past costs, and the nature of the work that will be
required. Based on this information, EPA and the PRPs try to reach an agreement that
the PRPs will both finance and conduct the work. If no agreement is reached, EPA may
(1) issue an order to compel the PRPs to do the work, (2) sue the PRPs to require them
to perform the work, and/or (3) use Federal funds to perform the work and seek to
recover its costs later. The negotiation process is described in detail in Chapter V,
RI/FS Negotiations, and Chapter VIII, RD/RA Negotiations.
If negotiations are successful, EPA and the PRPs must sign a legal document that sets
forth the requirements for cleanup. If the work required is an RI/FS, an RD, or a removal
action, EPA and the PRPs usually use an Administrative Order on Consent (AOC). An
AOC is a legally-binding administrative document, authorized by CERCLA, that EPA
and the PRPs both sign. While a judicial Consent Decree (CD) may be executed, CDs
are not the preferred mechanism for RI/FS or removal actions since administrative
settlements may be processed more quickly. A CD is similar to an AOC, except that it
is a judicial action which must be filed in court and be approved by a judge before it
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Oversight
Cost Recovery
Timeline
becomes final. If the settlement between EPA and the PRPs includes an RA, that
settlement must be in the form of a consent decree. These settlement devices are
discussed in Chapter V, RI/FS Negotiations and Chapter VIII, RD/RA Negotiations.
Once the AOC or CD takes effect, the PRPs can begin work at the site. In the case of
RD settlements, PRPs may begin work at the site before the CD is entered. EPA
closely monitors all work at the site. This monitoring may include on-site examination of
the PRPs or their contractors, review of all reports, and parallel sampling and analysis
to ensure accuracy. Under CERCLA, the PRPs must agree to pay for EPA's RI/FS
oversight expenses as part of the settlement. EPA also generally requires
reimbursement of oversight costs for removals and RD/RAs. Chapter VI, RI/FS
Implementation, describes the oversight process for RI/FSs, and Chapter IX, RD/RA
Implementation, discusses the process as it relates to RD/RAs.
If negotiations with the PRPs are not successful, EPA can choose to perform the work
and seek to recover its costs later. To recover its costs, EPA usually issues a demand
letter, and if the PRPs do not reimburse EPA's costs, EPA refers a judicial action to the
Department of Justice (DOJ) to bear upon the PRPs. If less than a total of $500,000 in
response costs is involved at a facility, EPA can settle with the PRPs directly using an
administrative order. If more than a total of $500,000 in response costs is involved at a
facility, written approval of the Attorney General is required and EPA may have to take
judicial action to settle the case. The cost recovery process is described further in
Chapter XII, Cost Recovery.
Each CERCLA site is unique and it is difficult to describe a typical site. The timelines in
Exhibit 1-1, however, depict the general flow of enforcement and response activities at a
CERCLA site. The Agency's expectations about how long each activity should take are
described in the OSWER Superfund Comprehensive Accomplishments Plan (SCAP)
manual for the current fiscal year. The time frames described in that manual represent
overall planning goals for the entire Agency. Individual site conditions may lead to longer
or shorter durations for each activity. RPMs should refer to both the SCAP-planning
durations and the specific conditions at the site in developing an overall site management
plan. Site planning is discussed in detail in Chapter III, Comprehensive Site Planning.
An example of a site that generally followed a common timeline exists in Region III. This
site was proposed for listing on the NPL in October of 1984, the PRP search was
completed in February of 1985, and the site was finalized on the NPL in June of 1986. In
May of 1985, Region III completed unsuccessful negotiations with the PRPs for the RI/FS
and in June, a Fund-financed RI/FS was initiated for the first operable unit.
In March of 1988, the ROD for the first operable unit RI/FS was signed and RD/RA
negotiations were initiated. Special notice letters were issued on March 29, and
negotiations concluded within the 120-day moratorium at the end of July. A consent
decree was agreed upon, and was lodged with the court. Following public comment, the
decree was entered in the second quarter of FY 89. It requires the PRPs to complete the
RD by the third quarter of FY 90 and the RA by the third quarter of FY 93.
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In the fourth quarter of FY 88, the PRPs began an RI/FS for the site's second operable
unit, which is scheduled to be completed in the second quarter of FY 90. Negotiations for
the second operable unit RD/RA will last from the first to the fourth quarter of FY 90,
and the PRPs will complete the RD/RA in the first quarter of FY 94. In addition to the
remedial activity at the site, a removal was performed in response to emergency
conditions. In February of 1985, the Region referred the case to recover approximately
$250,000 for the cost of the removal. The cost recovery case was settled in May of
1987.
IV. KEY PLAYERS
The Superfund enforcement program requires close coordination among many different
players within EPA, in other Federal agencies, and in the States. This handbook,
however, focuses mainly on the roles played by technical enforcement staff. While these
roles vary greatly among the Regions, they generally include initiating negotiations,
settlements, and cost recovery actions, and taking the lead in overseeing PRP response
actions.
The RPM plays the lead role in planning and coordinating site remediation. To achieve
programmatic objectives, the RPM must have effective plans and be a team builder and
leader. In addition to personnel from Federal agencies and the States, other Regional
staff, such as RPMs managing Fund-lead sites, staff from the Environmental Services
Division (ESD), Community Relations staff, and Office of Regional Counsel (ORC), may
play active roles. In Regions where enforcement and remedial responsibilities are divided,
RPMs on Fund-lead sites may become involved in enforcement activities when the sites
are ready for RD/RA negotiations, or they may become involved in litigation for cost
recovery. Similarly, ESD staff may become involved at a site when the removal
program is in that Division or when sampling and analysis work is required.
Attorneys from ORC act as the Region's primary legal advisors whenever an
enforcement action is taken at a site, in addition to their non-enforcement duties. They
often take the lead in negotiations with PRPs, review information exchanges between
EPA and PRPs, and are the primary communication link between the Agency and the
Department of Justice (DOJ) if EPA sues the PRPs for either site cleanup or cost
recovery.
At Headquarters, there are two major offices that participate in the program. Within
OSWER, OWPE takes the lead in managing the overall enforcement program. This
includes developing budgets and out-year forecasts, managing the SCAP process,
developing policy and guidance, and providing technical assistance and coordination when
necessary. OERR has responsibility for NPL listing and, with regard to Fund-financed
response actions, removal and remedial actions.
In addition to OWPE and OERR within OSWER, OECM provides legal advice and
coordination for all formal enforcement actions, with a particular focus on judicial cases.
In major cases, OECM reviews case referral packages before they are sent to DOJ.
They also comment on major precedent-setting settlements, as does OWPE.
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Other Federal
Agencies
States
Natural Resource
Trustees
In addition to EPA, DOJ is significantly involved in the Superfund enforcement program.
DOJ is involved in any enforcement action that must be filed in court and serves as a.
resource in all negotiations that may result in a consent decree. DOJ develops and
presents legal positions that explain the Agency's goals to PRPs and the court, and
provides the only communication between EPA and the courts regarding site-specific
litigation. In addition, it is the official representative of EPA in negotiations that take.
place while a case is pending before a court. As noted earlier, DOJ must also approve
any claim that is compromised and settled, whether by consent decree or by
administrative order on consent, where the total response costs at the site exceed
$500,000.
Other Federal agencies, such as the U.S. Coast Guard and the U.S. Army Corps of
Engineers, also may become involved in the program when their technical expertise is
required. For example, the Corps has extensive expertise in the management of large-
scale construction projects and, therefore, can be helpful in the management of remedial
actions.
The role of the States in the program is substantial. States usually participate in the
ROD process and may participate in settlement negotiations with PRPs. In addition,
States may take a lead role at a site by negotiating directly with the PRPs and issuing
orders under State legal authority.
At any site where natural resources may have been damaged, EPA must coordinate
with the trustee of those resources. The trustee may be a Federal agency, such as the
Department of Interior, the National Oceanic and Atmospheric Administration, or the
Department of Agriculture, or it may be a State agency (designated by a governor) or
there may be both Federal and State trustees for the site. EPA notifies natural
resource trustees of settlement negotiations with PRPs and allows trustees to
participate in negotiations regarding matters within their domain.
-7-
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REMOVALS
I. DESCRIPTION OF ACTIVITY 1
Introduction .1
Definition 1
Authority 1
Types of Removals 2
Removal Activities 2
Statutory Limitations and Exemptions 3
Administrative Record and Public Participation 4
Written Response 4
II. PROCEDURES AND INTERACTIONS 5
A. PRPSearcri 5
PRP Response Policy ..5
PRP Search Strategy 5
Emergency Situation 5
Time-Critical Situation 6
Non-Time-Critical Situation 6
All Removals ..6
PRP Search Completion 6
B. Enforcement and Negotiations Planning 6
Site Lead........ ..7
Enforcement Strategy -- Addendum to Action Memo 7
C. PRPNotice 8
Notification in Emergency Situations 9
Notification in Time-Critical Situations 9
Notification in Non-Time-Critical Situations 9
D. AOC Negotiations and AOU Assistance 9
Administrative Orders on Consent (AOC) 10
Unilateral Administrative Orders (AOU) 12
Issuance of AOUs 12
Activation of Fund During AO Issuance 13
Replacement of AOU with AOC 13
Enforcement of AO 13
E. Oversight Of PRP Response 13
Oversight Costs 14
F. Criminal Investigation 14
G. Community Relations , 14
Community Relations Plan 15
Community Relations Activities 15
III. PLANNING AND REPORTING REQUIREMENTS 16
A. Contractor Support 16
B. Information Management Systems 16
-------
SCAP/SPMS 16
ERNS 17
Notification System Process ....17
EPA Regional ERNS Responsibilities.... 18
EPA Headquarters Responsibilities ..........18
ERNS Phase II ...............18
IFMS ................18
IV. POTENTIAL PROBLEMS/RESOLUTIONS..... 19
A. Civil Investigator Support ..........19
B. Determining PRP Financial Viability.................... ...19
C. Use of Information Request Letters ........................19
V. REFERENCES ..............20
Guidance. 20
Manuals 20
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REMOVALS
I DESCRIPTION OF ACTIVITY
Introduction This chapter discusses enforcement activities associated with removal actions. This
chapter applies to conventional removals rather than actions funded as removals (i.e.,
RI/FS and RD). Generally, removal activity, including activity to secure and oversee
potentially responsible party removal actions, is managed by On-Scene Coordinators
(OSCs). This chapter was written primarily to assist OSCs in planning and conducting
enforcement activities. However, depending on the particular circumstances at a site,
other program personnel may assume lead roles in removal enforcement activities. At
sites where remedial activity is ongoing, the RPM may play a key role in securing and
overseeing PRP removal response. For convenience, only the term "OSC" is used
throughout this chapter, although the information is the same for RPMs when
appropriate. Exhibit 11-1 provides a broad overview of the removal enforcement process.
Specific procedures and guidance for the Removal program are set forth in OSWER
Directive 9360.0-03B, the Superfund Removal Procedures Manual (February, 1988).
Chapter V of the Superfund Removal Procedures Manual sets forth specific procedures
for pursuing enforcement actions at a removal site.
Definition Removal actions are defined in section 101 (23) of CERCLA as "the cleanup or removal
of released hazardous substances from the environment, (and) such actions as may be
necessary taken in the event of the threat of release of hazardous substances into the
environment..." This definition also includes actions necessary to:
Monitor, assess and evaluate the actual or threatened release
Dispose of removed material
Protect public health or welfare or the environment from an actual or threatened
release
Investigate and gather information (as authorized by section 104(b) of
CERCLA).
Sections 104(a) and (b) also authorize responses and studies regarding releases and
threatened releases of pollutants or contaminants which may endanger human health,
welfare or the environment.
Authority Section 104(a) of CERCLA authorizes the President to act, consistent with the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP, 40 CFR 300), to
remove or arrange for the removal of any hazardous substance, pollutant or
contaminant if the President deems it necessary to protect the public health or welfare
or the environment. Section 104(b) of CERCLA authorizes studies and investigations
-1-
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Types of
Removals
Removal
Activities
and section 106 of CERCLA authorizes the President to order measures necessary to
abate imminent and substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a hazardous substance.
Section 106 also sets forth fines for any person who, without sufficient cause, willfully
violates or fails or refuses to comply with a section 106 order. Specific standards and
procedures for implementing CERCLA and for conforming with other statutes are set
forth in the NCP.
EPA has classified removals into the following three categories based upon the site
evaluation and the urgency of the situation:
Emergencies-removals where the release, or threat of release, requires that on-
site cleanup activities begin within hours of the lead agency's determination that
a removal action is appropriate
Time-Critical-removals where, based on the site evaluation, the lead agency
determines that a removal action is appropriate and that there is a period of less
than six months available before cleanup activities must begin on site
Non-Time-Critical--removals where, based on the site evaluation, the lead
agency determines that a removal action is appropriate and that there is a
planning period of more than six months available before on-site activities must
begin. The lead agency must undertake an Engineering Evaluation/Cost
Analysis (EE/CA), or its equivalent, for non-time-critical removals.
The urgency determination is a deciding factor in determining the amount of time that
can be devoted to a PRP search prior to on-site action, negotiation length, the type
and timing of public participation, whether an EE/CA must be conducted, and the
extent of compliance with other environmental statutes.
According to section 101(23) of CERCLA and section 300.65 of the NCP1 , the response
activities listed below may be appropriate removal actions in certain situations. This list
is neither intended to limit response officials from taking other actions deemed necessary
under the circumstances, nor is it intended to preclude the lead agency from referring
response actions to other appropriate Federal or State enforcement authorities.
Fences, warning signs, or other security or site control precautions-where
humans or animals have access to the release;
Drainage controls (e.g., run-off or run-on diversion)-where precipitation or run-off
from other sources (e.g., flooding) may enter the release area from other areas;
The 1985 NCP is effective, until amended, except as modified by SARA. The proposed
revisions, 53 FR 51394 (December 21, 1988) are not yet effective. However, they may serve as
guidance where SARA required changes to the program.
-2-
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Exhibit 11-1
Overview Of Removal Enforcement
Activities Relationship to Response Activities
Enforcement Activities
Preliminary PRP Search
I
Oral /Written General
Notification of Known PRPs
Follow up on Early Search
Activities and Notice
±
Enforcement Addendum to
Action Memorandum
Yes
Issue Notice
(Possibly with draft AOC)
NO
Site Discovery
Make Administrative
Record Available to Public
Oversight of PRP Removal
Coordination of Removal Response
Assess Removal
\
Final Decision on Removal
Administrative Record File
i
Signed Action Memorandum
Written Response to
Significant Comments
»> Initiate [
"~ Financed F
\
:und-
temoval
t
Public Comment Period
' This general overview of removal enforcement may not apply in all situations, especially emergencies
-------
Stabilization of berms, dikes, or impoundments-where needed to maintain the
integrity of the structures;
Capping of contaminated soils or sludges-where needed to reduce migration of
hazardous substances or pollutants or contaminants into soil, ground water, or
air;
Using chemicals and other materials to retard the spread of the release or to
mitigate its effects-where the use of such chemicals will reduce the spread of
the release;
Removal of highly contaminated soils from drainage or other areas-where
removal will reduce the spread of contamination;
• Removal of drums, barrels, tanks, or other bulk containers that contain or may
contain hazardous substances or pollutants or contaminants-where it will reduce
the likelihood of spillage; leakage; exposure to humans, animals or food chain; or
fire or explosion;
Provision of alternative water supply-where it will reduce the likelihood of
exposure of humans or animals to contaminated water.
Statutory Section 104(c) of CERCLA specifies that Fund-lead removals may not exceed either $2
Limitations million in cost or 12 months in duration. The criteria for exceeding the statutory limits
and (which do not apply to PRP-lead removal actions) include:
Exemptions
An immediate risk to public health, welfare or the environment exists;
continued response actions are immediately required to prevent, limit or
mitigate an emergency; and such assistance otherwise will not be provided on
a timely basis.
Continued response action is otherwise appropriate and consistent with the
remedial action to be taken.
OSCs who request an exemption to the statutory limits on cost or duration for a Fund-
lead removal action should first ensure that all potential avenues of securing PRP
cleanup or funding for cleanup have been pursued. Headquarters carefully reviews all
cost exemption requests for Fund-lead removal actions for evidence of activity to secure
PRP participation in the cleanup. The following enforcement-related information should
be included in the exemption request Action Memorandum:
Extent of the PRP search
Whether PRPs have been identified
Financial status of PRPs, if PRPs have been identified
-3-
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Whether notice letters (special or general) were issued
Whether previous negotiations have been held with the PRPs and the results of
those negotiations
Whether an AO has been issued to the PRPs or previous demands for
reimbursement have been made
Status of the Administrative Record
Enforcement history of the site
Enforcement options, discussion and recommendations.
Specific procedures for obtaining exemptions to the statutory limits on Fund-lead
removals are set forth in the Superfund Removal Procedures Manual.
Administra- Section 113(k) of CERCLA requires that the Agency establish an Administrative Record
five Record for selection of CERCLA response actions. The Administrative Record is the body of
and Public documents upon which the Agency bases its selection of a response action. Section
Participation 113(k)(2) of CERCLA requires that EPA develop procedures for appropriate
participation of interested parties in the development of an Administrative Record for a
removal action. The Administrative Record should consist of documents that the
Agency considered or relied on to select the response action and when appropriate,
include documents demonstrating the public's opportunity to participate in the selection of
the response action. More information on the Administrative Record is contained in
Chapter XV, Records Management.
Among the key components of the Administrative Record are the Action Memorandum
and underlying inspection reports and data.
The proposed revisions to the NCR and associated preamble constitute guidance on
development and maintenance of the Administrative Record and public participation
requirements. In addition, guidance on Administrative Records is provided in OSWER
Directive 9833.3A, "Interim Guidance on Administrative Records for Selection of
CERCLA Response Actions" (March 1,1989). Exhibit II-2 depicts the various proposed
activities EPA is considering as requirements when establishing an Administrative
Record for each of the removal categories defined earlier in this chapter. The
requirements for each removal category differ to ensure that the Administrative Record
does not unduly create delays in emergency and time-critical removal actions. OSCs and
RPMs should refer to OSWER Directive 9833.3A cited above, for information on the
specific documents that should be included in Administrative Records for removal actions.
Written A written response to significant comments received during the public comment period
Response should be included in the Administrative Record file along with the comments. It
serves to document how public comments have been considered during the decision-
making process and to provide answers to significant comments raised.
-4-
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I PROCEDURES AND INTERACTIONS
A. PRP Search
PRP
Response
Policy
PRP Search
Strategy
Emergency
Situation
PRP searches are discussed in detail in Chapter IV, PRP Search, Notification, and
Information Exchange. The urgent nature of emergency removal actions may require
response initiation prior to an extensive PRP search that goes beyond identifying the
owner/operator. This section discusses PRP searches related to removal actions.
Where PRPs are known and able to perform the removal, EPA prefers that they
undertake the response action pursuant to an administrative order. A PRP investigation
should be a part of the preliminary assessment that an OSC conducts under section
300.64 of the NCP. To the extent appropriate under the circumstances, the OSC is to
search further for responsible parties and attempt to have them perform the necessary
removal action. In addition, supplemental searches may be warranted during a
stabilization action for PRP takeover of the disposal and for cost recovery if the
removal is conducted with use of the Fund.
A PRP search strategy is important. As background to conducting removal PRP
searches, the general steps in the PRP search process are described in Chapter IV. The
level of effort of the PRP search and period of performance of search tasks in removals
depend on the amount of time between discovery and the execution of the Action
Memorandum, the urgency of the release situation, the likely expenditures on the
removal, and available resources. For descriptive purposes, Exhibit 11-3 shows how the
level of effort tends to vary with urgency. While the amount of removal expenditures
affects the expenditures for a PRP search, this concept is not depicted by the chart.
Information gathered during the PRP search, such as that indicated by the activities in
Exhibit 11-3, is essential to support an enforcement strategy at Superfund sites.
In many removal situations, effective PRP searches depend partially on the presence in
the field of the personnel conducting the search. To realize the advantage of having PRP
research conducted partially in the field, and as a matter of standard procedure, the
enforcement project manager, if different from the OSC, should consult with the OSC on
the PRP search as well as other aspects of the case. It is important that search
activities be well-documented even if the result is that no viable PRPs are identified.
In emergency situations where the PRP is not immediately known, the OSC usually
conducts the PRP search in two phases. Initially, streamlined procedures, consisting of
oral inquiries of municipal officials and reasonably available on-site sources, as well as
reviews of readily available site records are implemented. Oral inquiries should be
documented as soon as practicable. Obvious visual information of possible PRP links to
the site should be recorded if time permits. TAT or TES support under an expedited
work assignment may be employed. The OSC should, to the extent possible, prioritize
and expedite certain search activities to support the notice, negotiation and
administrative order process before the removal begins. Once the site is stabilized, the
second phase of PRP identification efforts should continue. This phase of the PRP
search may support cost recovery efforts and partial-work orders. Depending on
response expenditures, available resources and the site strategy, the civil investigator
and contractor (e.g., TES) may provide assistance on the follow up search.
-5-
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Time- In time-critical situations, the OSC should follow procedures that expand upon the PRP
Critical search activities discussed for emergency situations. Title searches and on-site
Situation interviews also should be undertaken (OSCs should coordinate with civil investigators to
determine what information needs to be obtained). OSCs also may use 104(e)
information requests that include questions pertaining to financial viability to obtain
additional evidence during the PRP search.
A/on- At a minimum, the OSC should conduct the same preliminary PRP search measures
Time- discussed above. In addition, depending on the level of expenditures and the amount of
Critical time available, the OSC may take additional steps, such as further questioning of
Situation persons on or near the site and on-site investigation for names of PRPs (e.g., records
review). After the OSC has made a preliminary effort to identify PRPs, he or she may
request Regional enforcement personnel to conduct a potentially responsible party search
to identify generators and transporters. A baseline report as described in Chapter IV
should be prepared and decisions should be made on specialized tasks. Where PRPs do
not conduct the work, an interim final report will be necessary.
Technical Enforcement Support (TES) contracts, Technical Assistance Team (TAT)
contract support, or civil investigators may be used to support PRP searches in non-time
critical situations. Other support may be available through the use of 8(a) (i.e., minority
or disadvantaged contractor set-aside) contractors. OSCs also may request the
assistance of the National Enforcement Investigation Center (NEIC) in conducting a PRP
search.
All Removals OSCs should be prepared to obtain the necessary approval to conduct a Fund-lead
response if no PRPs can be identified. However, the initiation of a Fund-lead response
does not mean that the search for PRPs is discontinued. During a Fund-financed
removal, OSCs should fully document possible evidence of liability at the site in
anticipation of cost recovery litigation. Documentation activities include photographing
the site to verify site conditions and obtaining evidence of PRP links to the site such as
site records identifying owners/operators. OSCs may utilize TAT contractors in
gathering information that may help establish a party's status as a PRP. Efforts to
locate PRPs should continue throughout the removal action to support cost recovery
efforts and possible PRP involvement in any future response actions.
PRP As noted in Chapter IV, PRP search reports usually should not be viewed as complete
Search PRP searches. In most multi-party cases where substantial funds are spent, specialized
Completion tasks also will be utilized to provide adequate information beyond the baseline report.
Exhibit II-3 shows the information that the PRP search effort should include or yield to
meet the target of a completed PRP search.
B. Enforcement After initiating the search for PRPs, but prior to issuing notice, decisions must be made
and regarding the site lead and enforcement strategy. Careful planning during this phase of
Negotiations the removal helps ensure that negotiations and other enforcement activities will be
Pfenning conducted with greater success.
-6-
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Site Lead When viable PRPs have been identified, every attempt should be made to secure PRP
conduct of the removal activities. However, site lead decisions must be based on the
exigencies of the particular situation. Primary factors to be considered in making a site
lead decision include:
Immediacy of the need to respond
Strength of the case on PRPs' liability
Financial viability of the PRPs.
Other criteria to be considered include:
Ability and need to precisely define the removal
• Unique technical problems, including oversight
Technical capability of the PRP to conduct the removal
Willingness of PRPs to conduct the removal (lack of willingness does not preclude
an AOU)
Availability of the Fund
Cost of the removal (very low-cost removals have low priority for enforcement).
In addition, consideration should be given to the workload of the Regional staff and the
extent of oversight activities.
Enforcement Except in true emergencies, prior to initiating the PRP notification process, the OSC
Strategy -- should prepare a brief strategy that details the information and activities needed to
Addendum to successfully plan a removal action. An "Enforcement Sensitive" attachment that
Action includes information on the enforcement strategy, PRP response, and previous actions
Memo should accompany the Action Memorandum for the site. If time permits, the enforcement
staff should undertake the following activities when preparing for negotiations with
PRPs:
Review results of preliminary PRP search efforts for adequacy and accuracy
and supplement as necessary
Determine notification strategy
Review problems posed by site
Develop clear statement of work to be done consisent with draft Action
Memorandum
-7-
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Prepare draft Administrative Order (AO)
Develop negotiations strategy.
Preparing a brief negotiations strategy prior to the initiation of negotiations helps ensure
that the OSC has considered various aspects of the situation which could affect
removal activities. For example, at a drum site the OSC should attempt to establish the
number of drums, how many are leaking, how many are overpacked, and any other
information that would affect plans for removal activities. Obtaining this information
also prepares the OSC for the first round of negotiations with the PRP, which can be
jeopardized by inadequate preparation and unclear cleanup goals. The statement of work
should be attached to the notice letter that advises PRPs of their potential liability and
possibly initiates negotiations with EPA for conducting the removal.
C. PRP Notice Where PRPs have been identified, EPA's general policy is to notify PRPs of their
potential liability and to advise them of the intended response action. Where the
circumstances allow, there often will be two notice letters: (1) notice of liability and (2)
notice of an opportunity to negotiate to conduct the removal (negotiations are discussed
in Section D of this chapter). In emergencies and some time-critical removals, these
notice letters and the negotiations processes may be combined. Moreover, in
emergencies, the notification process may involve oral notification of identified PRPs,
which should be confirmed with a written notice letter.
The content of notices vary depending on whether:
The notice will be used simply to notify PRPs of their potential liability; it may
further advise the PRP of an action EPA has already taken or is about to take;
The notice will be used to encourage a private party response through
negotiations;
The notice will be used as a mechanism for invoking the section 122(e) special
notice procedures which provide for negotiations with a formal moratorium on
response. Emergency and time-critical removals do not follow special notice
procedures due to the urgency of these situations.
Where possible, the Regional program office should send notice letters to all known PRPs
prior to the initiation of the removal action. The OSC must consult and coordinate with
Regional enforcement staff in notifying PRPs of their potential liability and requesting
removal action by the PRP. Execpt in limited emergency situations, it is inappropriate to
provide initial notice by a unilateral administrative order. Exhibit II-4 identifies the steps
involved in securing potentially responsible party action. OSCs should refer to Chapter
V of the Superfund Removal Procedures Manual and OSWER Directive 9834.10, "Interim
Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19,1987)
for policies and procedures concerning the notification process. Also, OSWER has
distributed model notice letters (OSWER Directive 9834.10, "Model Notice Letters,"
February 7,1989) and most Regions have their own models.
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Exhibit 11-4
Securing PRP Action for Removals
Regional Technical Enforcement
Personnel
Determine that Response
Activities may be necessary
Regional Technical Enforcement
Personnel
Identify PRPs
Regional Technical Enforcement
Personnel
Continue Search Follow-up
Activities
Regional Administrator
Issue AOU
I
Region
Initiate Fund-financed
Response Followed by Cost
Recovery or Initiate §106
Litigation to Enforce Order
Initial
PRP Search
Successful^
Regional Technical Enforcement
Personnel
Determine Extent of Continued
Search and Followup
Regional Technical Enforcement
Personnel
Notify (oral/written) PRP of
Liability
Regional Technical Enforcement
Personnel
Identify PRPs
Regional Program Office
Prepare Action Memo & AR;
Notify PRP of Required Action
Regional Technical Enforcement
Personnel
Notify/Request PRP to Conduct
Removal and Negotiate with PRP
Hold Conference with PRP
Negotiations
Result in AOC?
Regional Administrator
Issue AOC
PRP Agree to
Terms of AO?
PRP/Region
Enter into Consent Order or
Perform Removal Based on
Unilateral Agreement"
PRP
Initiate Cleanup
OSC/RPM
Monitor PRP Cleanup
' AOU does not have to be converted to AOC for PRP to initiate response actions.
-------
Notification in
Emergency
Situations
Notification in
Time-Critical
Situations
Notification in
Non-Time-
Critical
Situations
D. AOC
Negotiations
andAOU
Assistance
In emergencies, the OSC may notify known PRPs orally. The Regional program office
then should prepare and send a general notice letter to the PRP confirming the oral
notification of liability and any request for response. The Regional program office should
send the notice letter as soon as possible following the oral notification. While a written
notice letter typically precedes the initiation of an administrative order (discussed in
section D of this chapter), this is not necessary in emergencies, given the limited time
available.
In time-critical situations, the OSC may initially notify PRPs orally and follow the same
procedures as in an emergency. Whenever possible, it is preferable that notice letters be
issued before the removal action. Moreover, the OSC should conduct a review of and
follow up on preliminary PRP search activities to ensure all reasonably known PRPs
have been identified. The extent to which PRP search activities may be reviewed and
upgraded is dependent on the urgency of site conditions.
In non-time-critical situations, procedures for obtaining PRP response are more likely to
involve formal negotiations which may be invoked by issuance of a special notice or
section 122(e) letter. First, the PRP search should be reviewed and any outstanding
leads pursued during the drafting of the proposed EE/CA. The PRP search review and
follow-up activities should include the use of section 104(e) information requests (see
section IV of this chapter). Notice letters should be issued to PRPs and, depending on the
response, an Agency team of Regional technical and legal personnel should quickly
schedule negotiations aimed at securing PRP cleanup within an established period of time.
The use of the special notice procedure should only be considered for non-time-critical
removal actions because the issuance of a special notice triggers a 60-120 day
moratorium on EPA action and a specific time frame for negotiations. Therefore,
CERCLA section 122(e) special notice procedures should be used only for those removals
where site activity need not commence for 60-120 days following issuance of the notice
letter.
The site lead determination and enforcement strategy (see section B of this chapter) will
determine the general approach to negotiating activity at the site. Where negotiations
are part of the strategy and time allows, the preferred approach to negotiations is to
send the PRP a notice letter specifying the work to be done and establishing a time
frame for negotiation of an Administrative Order on Consent (AOC). Where possible, it
is advantageous to send the PRPs a model AOC, with the letter or as soon thereafter
as possible. While it is appropriate to advise PRPs that EPA may issue a Unilateral
Administrative Order (AOU) if they do not consent to an AOC, unilateral orders are not
preferred where an AOC is possible. In addition, informal agreements are not credited by
Headquarters. For leverage in negotiating an AOC, it often is helpful to have a signed
Action Memorandum. The preferred outcome of the negotiations is an AOC.
The time period for negotiations should reflect the exigencies of site conditions; the nature
of the work being discussed; and the response of the PRPs to prior communications. In
non-time-critical situations where EPA has issued a special notice and the PRP has
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responded with a good faith offer, an automatic 60-120 day moratorium on EPA activity
at the site establishes a fixed period during which negotiations may occur.
It is very important to have a detailed technical scope of work when entering into
negotiations.
Enforcement staff may take the following steps when conducting negotiations with
PRPs:
Meet with PRPs
Negotiate language in the administrative order
Negotiate technical points and schedules in the workplan
Enter into an AOC, to which PRPs agree and sign, or issue an AOU, in which
PRPs do not execute their consent by signing.
Due to the time-sensitive nature of removal incidents, the negotiation process is often
accelerated and certain steps described above may be eliminated. The negotiations
schedule should be specified to PRPs in writing.
In some instances, it may take as little as two weeks to conduct negotiations and sign an
administrative order on consent; however, it can take several months depending on the
progress of negotiations. For simple removals, the order may detail work to be done. For
more complex removals, the order often provides the scope of work for later response
activities and requires the PRP to draft the detailed work plan as a deliverable if the
OSC has not already written the work plan. This enables the AOC to be signed and the
PRP to initiate stabilization measures at the site before a completed work plan has been
agreed upon.
In some cases, Regional personnel may find that PRPs wish to negotiate to conduct a
portion of the removal action. The PRP may be financially or technically unable to
completely address some of the contamination at the site. It may be appropriate to have
the PRP undertake simple tasks (e.g., security) as well as others that he can accomplish.
Where the PRP appears to be incompetent or lacks substantial resources, it often is
preferable to initiate a Fund-lead response. At some non-emergency removals, there
may be viable PRPs that are willing to settle by conducting only a portion of the work so
that EPA will pursue other PRPs for the remainder by unilateral order and/or cost
recovery action. If the nature of the removal and the universes of PRPs who would
settle and would not settle warrant such an order, this is known as a "carve out" order.
Administra- As noted earlier, the preferred product of negotiations is a CERCLA section 106(a)
live Orders Administrative Order on Consent (AOC), also known as a consent order. Removal AOC
on Consent provisions may include the following:
(AOC)
Introduction: Establishes that the AOC is a voluntary agreement.
-10-
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Jurisdiction: Describes the authority under which EPA has issued the order.
Parties Bound: Lists to whom the order applies and directs them to provide
copies of the order to any successors, subsequent owners, or contractors.
Statement of Purpose: States the objectives of the order.
Findings of Fact: Provides enough factual information to establish the
Conclusions of Law and provide a predicate for the work to be performed.
Conclusions of Law: States that the respondent(s) has been identified as a
responsible party and why the Agency has determined it to be appropriate to
conduct a removal action.
Notice to the State: States that notice of issuance of this order has been
provided to the appropriate State.
Work to be Performed: Specifically describes the work to be conducted as
divided into tasks. A standard first task that should be added for unilateral
orders is a requirement that respondents provide verbal and written notice of
their intent to comply within days of issuance of the order.
Quality Assurance: Specifies QA/QC requirements.
Modifications to the Work to be Performed: Describes how modifications may be
achieved.
Administrative Record File: States that EPA determines the content of the
Administrative Record.
Designated Project Coordinators: Requires designation of project coordinators.
Site Access, Record Availability, and Record Preservation: Requires
respondent(s) to provide or secure acces to the site, to provide access for EPA
to review any records, and to preserve site files for a minimum of nine years.
Dispute Resolution: States agreed upon dispute resolution procedures.
Delay in Performance/Stipulated Penalties: Establishes a violation list and
stipulated penalties for each such violation.
Force Majeure: States force majeure provisions.
Oversight Reimbursement: Requires oversight reimbursement.
Payment of Past Costs
-11-
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Reservation of Rights and Reimbursement of Other Costs: Reserves EPA's
right to bring action against respondent(s) to complete this work, or for other
work and for costs. Also states that nothing in the order releases the
respondent(s) from other claims filed by other parties.
• Disclaimer: Releases respondent(s) from admission of guilt by signing the order.
e Effective Date: Establishes the order's effective date.
Termination and Satisfaction: States that EPA will give the respondent(s)
written notification when it has determined the order to be completed.
Unilateral In emergency and some time-critical situations, Regional staff may find it necessary to
Administra- bypass negotiations and immediately issue a Unilateral Administrative Order (AOU). In
tive Orders addition, if viable PRPs fail to respond appropriately to the oral/written notification and
(AOU) negotiation process described above, Regions should pursue issuing a CERCLA section
106 AOU unless there is good reason not to issue an order. The following criteria must
be satisfied to issue an order:
Liable parties have been identified
There is evidence of a release or threat of a release of a hazardous substance
There is evidence that the release is from a facility
Site conditions may present an imminent and substantial endangerment (Note:
the courts have interpreted this standard very broadly and have not required a
finding of immediate threat)
The affected State has been notified
The removal is not inconsistent with applicable law (see CERCLA and the
NCP).
Unilateral orders are an effective way to achieve PRP response in situations where
there is insufficient time to pursue thorough negotiations, or the PRP is unwilling to
conduct the cleanup pursuant to an AOC. The provisions of an AOU are similar to an
AOC, except that more detailed findings of fact are stated. Also, AOUs usually contain
a provision requiring noticed intent to comply within a specified period and the AOU
usually does not contain past costs, stipulated penalties, dispute resolution, or force
majeure clauses.
Issuance of Regional enforcement staff should issue an AOU before Fund activation whenever a
AOUs PRP has been identified (unless the PRP is non-viable), provided the criteria for site lead
discussed earlier in section B are met and the order is within Regional resources. The
-12-
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OSC and other Regional personnel should continue the process of obtaining approval for a
Fund-financed action, providing the PRP does not comply.
Activation of If site conditions warrant, the OSC should immediately initiate on-site response activities
Fund During while the AO process continues. PRP takeovers of removals are limited. Where
AO Issuance appropriate, at a convenient break in the response activities, EPA may demobilize its
contractor and the PRP may assume responsibility for the remaining activities required.
In such cases, the AO should be revised to reflect the PRP takeover.
Replace-
ment of
AOU with
AOC
Enforce-
ment of AO
£ Oversight
Of PRP
Response
The recipient of the AOU may agree to comply with the terms of the order. In some
cases, EPA may withdraw the unilateral order when it is replaced by an
administrative order on consent. EPA generally does not devote a significant amount
of time to a second round of negotiations.
Non-compliance with AOs is determined through the oversight process. There are two
kinds of noncompliance:
No major response to the order, and
A response that does not satisfy the order.
If the recipient does not comply with the terms of the order, EPA usually will proceed
with a Fund-financed response and subsequent suit for cost recovery under CERCLA
section 107 (including punitive treble damages if the PRP did not have sufficient cause for
non-compliance with an AO).
In certain situations EPA, with DOJ assistance, will enforce the terms of the order and
compel PRP response through judicial enforcement actions under section 106 of CERCLA.
Although the Agency has the authority to refer a section 106 action (e.g., filing a section
106 complaint), it is often preferable not to do so when Fund monies are available and the
delays of litigation are inconsistent with program direction. Violation of an AOU will set
up a treble damage and penalties action under section 107 of CERCLA.
Guidance on the issuance of administrative orders for removals is currently being revised
by the Office of Waste Programs Enforcement (OWPE) and the Office of Enforcement
and Compliance Monitoring (OECM) in Headquarters.
An AO prescribes the activities the PRP must undertake. It also prescribes the
completion date for the entire response as well as the discrete parts of the response
(including oversight provisions and associated costs).
Regional personnel responsible for monitoring PRP compliance should either remain on site
or visit the site periodically, whichever is appropriate given the circumstances of the
release and the nature of cleanup activities. Oversight activities by Agency personnel
may be supplemented through the use of contract resources such as TAT or TES.
Contractors may assist Agency personnel in overseeing field activities and conducting
technical review of work plans, protocols, site data, and reports.
-13-
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Oversight
Costs
When the PRP agrees to undertake response action, but monitoring by the OSC or
CERCLA enforcement personnel shows that the actions are not timely or appropriate,
EPA may either take action to enforce the AO by CERCLA section 106 judicial action or
take over the response and pursue cost recovery.
Costs associated with oversight of PRP response actions, including removal actions, are
fully recoverable under section 107 of CERCLA. To facilitate the preparation of
potential future cost recovery actions against either PRPs conducting the removal or
other non-participating PRPs, OSCs and RPMs should comply with the cost
documentation procedures described in Chapter XII, Cost Recovery.
Recoverable costs include both intramural (e.g., EPA payroll and travel and indirect
costs) and extramural (Agency contractors' costs) oversight costs. The Superfund
Indirect Cost Manual for Cost Recovery Purposes FY 83 through FY 86 (March 1986)
developed by the Superfund Accounting Branch, Financial Management Division provides
an explanation of how EPA's extramural cost rates are developed and how those rates
should be used to calculate extramural oversight costs for individual Superfund sites.
Detailed information on cost recovery is located in Chapter XII, Cost Recovery.
Information on cost management and recordkeeping is also in the Removal Cost
Management Manual (April 1988).
If at any time during removal actions criminal activity is suspected, the Special-Agent-ln-
Charge should be notified immediately to begin criminal investigative activities. In
situations where a criminal investigation has been initiated by the NEIC, the OSC or
RPM, Regional Counsel should exercise caution on becoming involved in a criminal
investigation while conducting a PRP search, administrative or civil investigation.
Additional information on criminal investigations and the role of the NEIC and Regional
personnel is provided in the memorandum "Functions and General Operating Procedures
for the Criminal Enforcement Program" (Courtney M. Price, January 7, 1985).
Community Community relations activities are ongoing throughout removal actions, varying in
Relations extent with the urgency of the situation. The objectives of community relations
during removal actions include:
To identify citizen leaders, public concerns, and a site's social and political
history and encourage citizens to express concerns and provide information
To take into account community, including PRP, views and concerns into the
decision-making process
To provide information to the community on the health and environmental
effects of releases and proposed response action.
By providing information as directly and quickly as possible, the OSC will ensure that the
community receives the information it needs about the response action and the effects of
the release on the community's health and safety. OSWER Directive 9230.0-3B, the
F. Criminal
Investigation
-14-
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Community Relations Handbook (June 1988) and Chapter 6 of the Community Relations
Handbook, which was issued under separate cover as OSWER Directive 9836.0-1 A,
"Community Relations During Enforcement Activities" (November 6,1988), should be
consulted for current policy on community relations during removal actions. Regions are
encouraged to consider use of the Regional Response Team (RRT) to assist in
community relations activities.
Community Under current requirements, a Community Relations Plan (CRP) should be prepared for
Relations all response actions lasting longer than 45 days. Before preparing a CRP, program and
Plan community relations staff must meet with local officials and interested citizens to obtain
information about the site and to identify public concerns. The plan should provide:
Site background
The nature of the community concern
The key site issues
The objectives of the community relations activities
Specific activities to be undertaken at the site.
Responsible parties may participate in implementing elements of the CRP at the direction
of, and with oversight by, Regional staff. The lead agency develops the community
relations plan.
Community Specific types of community relations activities during removals are likely to include
Relations meeting with citizens in the community, responding to inquiries from the media, and
Activities providing local officials with site status information.
-15-
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ft PLANNING AND REPORTING REQUIREMENTS
A. Contractor Resources available to Regional personnel to conduct PRP searches include OSCs, the
Support Technical Assistance Team (TAT) contract, the Technical Enforcement Support
(TES) contract, civil investigators, enforcement project managers, and the NEIC.
Regional personnel should evaluate the contracting support options for conducting
effective and efficient PRP searches for removals, and incorporate contractor support
into quarterly and annual budget planning procedures. When planning for this contracting
support, keep in mind that resources may be constrained by contract capacity or other
factors.
Regional experience has shown that the TAT is an efficient resource for gathering
information regarding property owners and site operators because the TAT is already in
the field responding to the removal situation. Some Regions have open-ended TES work
assignments that allow for limited PRP research to be conducted while the official
paperwork for the work assignment is being processed. This approach has proven
effective for limited research but does not allow and should not be used for the
identification of a large number of generators/transporters. Regional personnel should
note that the capacity of the TES contract may not allow its use for all removal PRP
searches because of PRP search activities for the remedial program. Generally, a
standard work assignment is used for PRP search work beyond the initial TAT work.
B. Information EPA has established several distinct but interrelated systems for documenting and
Management tracking removal activities from the initial notification of the release through the
Systems completion of the response. This section identifies the various planning and tracking
systems and discusses their relevance to enforcement removals.
SCAP/ Removals are tracked by SCAP/SPMS through the Comprehensive Environmental
SPMS Response, Compensation and Liability Information System (CERCLIS). Exhibit 11-5
summarizes SCAP/SPMS measures relevant to removals. OSCs should coordinate
with their information managers to ensure that they are entering information into
CERCLIS correctly. Exhibit 11-6 is an example of a completed CERCLIS site information
form (SIF) for a removal. OSCs should complete the SIF using the example outline of
fields and values:
A. Operable Unit (Removals always have an operable unit of 00. All post-SARA
removals must be coded 'RV as an event.)
Event (RV = Removal)
Lead (RP = Responsible Party, F = Fund)
Plan start/complete date (FYQ)
Actual start/complete date (MM/DD/YY)
SPMS Target (P = Primary, A = Alternate, once a removal has started, it
cannot be coded as an 'A')
SCAP Note (Information about the removal)
Takeover Flag (See below)
First Start/Complete Indicator
Event Start NPL Status (Y/N)
B.
C.
D.
E
F.
G.
H.
I
J.
-16-
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Exhibit 11-5
SCAP/SPMS Targets and Measures for Removals
Targets
ACTIVITIES
SPMS
TARGET
SCAP
TARGET
QUARTERLY
TARGET
ANNUAL
TARGET
Removal
NPL Removal Start
Non-NPL Removal Start
NPL Site Completions through
Removal Actions
Remedial/Removal
NPL Sites Addressed through removal
action or RI/FS start (S/C-2)
NPL Sites where all remedial/removal
implementation has been completed (S/C-6)
X
X
X
X
X
X
X
X
X
X
Measures
ACTIVITIES
SPMS
REPORTING
SCAP
PLAN/REPORT
QTRLY
ANNUAL
Removal Completions
Removal Investigations Completed at
NPL Sites
Removal Completions
Remedial/Removal
Percent of NPL Sites Addressed
to date (S/C 2a)
X
X
X
X
-------
IS
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K. Financial Requirements:
1. Financial Type (P = Planned Obligation)
2 Budget Source (E = Enforcement)
3. Financial Amount (Required for oversight)
4. Plan/Actual Financial Date (FYQ, MM/DD/YY)
5. Financial Vehicle (TES = Technical Enforcement Support)
6. Fund Priority Status (APR = Approved, ALT = Alternate).
7. Financial Note
A removal start date is the date the PRP/contractor/OSC begin actual on-site work
(as entered in CERCLIS).
For Fund-financed removals, completions are counted on the day the contractor/OSC
have demobilized and left the site. For PRP-financed removals, completions count when
the Region has certified (via CERCLIS) that the PRPs or their contractors have
completed a removal action and fully met the terms of the AO, CD or judgment.
The takeover flag is an indicator that identifies events that have had a change in lead.
The valid codes are: T = Takeover, TT = Takeover of a takeover, or EV# = An event
code (C2111) followed by a sequence number to indicate which event was taken over
that created the new event record.
ERNS The Emergency Response Notification System (ERNS) is a nationwide, centralized
database supported by EPA, the U.S. Coast Guard (USCG) and the Department of
Transportation (DOT) and maintained by the Transportation Systems Center (TSC).
This information-sharing network documents every release notification received by the
National Response Center (NRC), EPA Headquarters and Regional offices, and USCG.
ERNS is a documenting system, not a tracking system. Only the initial notification of
release is documented, not the actions performed on the site. ERNS contains information
on every reported release (including releases of non-hazardous substances and releases
below RQ levels), not only those that result in removal action. ERNS also provides
assistance to Regional enforcement personnel in supporting day-to-day response
operations and enforcing release reporting requirements.
Notification System Process
Exhibit II-7 provides a diagrammatic representation of the ERNS release notification
process. Responsible parties, private citizens, or State or local officials may report a
release to the NRC. The NRC documents the notification and relays the data to the
appropriate OSC for review and response determination. In the event that EPA or
USCG is the first to be notified, the notified agency will document the release incident
data and relay the information to the appropriate OSC for response determination.
When the EPA Region is the notified agency, the release data must be transferred within
two weeks of receipt to the TSC for compilation and input into the NRC database.
-17-
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EPA Regional ERNS Responsibilities
EPA Regions and USCG field offices are responsible for:
Taking calls from parties or NRC reporting oil spills or chemical releases
Documenting the notification using standard data collection form
• Making response determination
• Relaying the release notification report within two weeks of receipt to the
TSC.
These responsibilities ensure the efficient functioning of ERNS.
EPA Headquarters Responsibilities
EPA Headquarters, in conjunction with USCG and DOT, are responsible for providing
overall direction and guidance for the development and operation of ERNS.
ERNS Phase II
ERNS has been fully operational since October 1987. As of January 1989, a second
phase of ERNS became operational. Phase II verifies notification data and provides a
direct link to CERCLIS.
IFMS The Integrated Financial Management System (IFMS) is a computerized database which
tracks costs associated with removal actions. Costs are categorized by site and type
of activity (e.g., oversight costs). OSCs and RPMs should use the IFMS to help monitor
costs at their site, especially if accumulated costs approach the $2 million limit on
removal expenditures set by CERCLA.
-18-
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EXHIBIT 11-7
ERIMS Notification Process
RESPONSIBLE PARTY
DISCOVERS J REPORTS
RaEASE
PRIVATE CITIZEN
DISCOVERS t REPORTS
RELEASE
STATE t tOC ALGOVT
DISCOVERS! REPORTS
RREASE
COLLECTS DATA FROM
REPORTER (STANDARD
NRC DATA CEMENTS)
EPMKCG
WAS
RELEASE REPORTED
TO THE NRC OR THE
EPA REGION/USCG
DOCUMENTS RELEASE
DATA
NRC
COLLECTS DATA
FROM REPORTER
NRC
DOCUMENTS RELEASE
DATA
EPA/VSC&
RELAYS RELEASE
DATATOOSC
OSC
RECEIVES RELEASE
DATA
NRC
RELAYS RELEASE
DATA TO OSC
Efl*
TRANSFERS DATA WITHM
2 WEEKS M REGION-
SPECIFIC FORMAT
OSC
REVIEWS RaEASE DATA
GATHERS MORE DATA
OSC
MAKES RESPONSE
DETERMINATION
USCG
MPUTS RaEASE DATA
WTO MSIS WTTHN1 WEEK
OF RECEIPT AND TRANSFERS
DATATOTHETSC
NRC
COMPLETES ENTERING
RaEASE DATA INTO
NRC DATABASE
STOP
NRC
TRANSFERS RaEASE
DATA ENTRIES
TO TSC DALY
7SC
RECEIVES! LOGS
RECEIPT OF DATA
TSC
NPUTS RELEASE
DATA INTO
NRC DATABASE
TSC
INCORPORATES DATA
WTO RELATIONAL
DATABASE
TSC
GENERATES QUARTERLY
AND SPECIAL REPORTS
FOR EPA
rsc
SUBMITS REPORTS
TO EPA
NRC
GENERATES REPORTS
4 FOIA REPLIES
AS NECESSARY
STOP
EPA
RECEIVES REPORTS
STOP
USCG: U S Coasl Guard Held offices
EPA: U S Environmental ProtKllon Agency Regions
NRC. National Response Center
TSC: DOT'S Transportation Systems Centor
-------
IV. POTENTIAL PROBLEMS/RESOLUTIONS
A. Civil Many Regions have identified civil investigators as a timely mechanism for gathering
Investigator PRP liability and financial information for removal cases, and noted that civil
Support investigators are effective in a quality assurance capacity to oversee research being
conducted by enforcement project managers.
Region III has recognized the need for a civil investigator to work exclusively on removal
cases, and has a full time civil investigator position to work in the field in the early
stages of a case. Regions with removal programs large enough to sustain one civil
investigator full time should investigate the possibility of creating such a position. This
position allows the investigator to become familiar with the types of investigative
situations that removals present, and prevents conflicts in which priority is required by
remedial cases. Additionally, assigning a civil investigator exclusively to removal cases
ensures the investigator's availability to conduct PRP research when required
immediately for a time-critical removal.
B. Determining
PRP
Financial
Viability
C. Use of
Information
Request
Letters
Effective PRP searches should yield financial information on PRPs so that the
determination can be made whether to pursue the CERCLA section 106 administrative
order option. To ensure PRP searches yield the necessary financial information, Region
IX includes a financial disclosure form with information request letters issued under
section 104 (e) of CERCLA. Standard PRP search procedures in many Regions include
a Dun and Bradstreet system financial report, and review of records for bankruptcy,
property ownership, and financial status information.
The 104(e) information request letter provides a means of gathering PRP liability
and financial evidence, including information on site history, the identity of additional
PRPs, and financial information. Financial information is necessary in determining
whether to issue an administrative order. Therefore, enforcement personnel should
be involved in removal cases at the outset to facilitate gathering as much
information as possible before issuance of an administrative order. Section 104 (e)
letters also may be used in conjunction with demand letters, issued approximately 12
months after removal completion during the cost recovery stage, to gather additional
evidence and identify additional PRPs.
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V. REFERENCES
Gutfance OSWER Directive No. 9836.0-1 A, "Community Relations During Enforcement Activities"
(November 6,1988).
Courtney Price, "Functions and General Operating Procedures for the Criminal
Enforcement Program" (January 7,1985).
OSWER Directive No. 9833.3A, "Interim Guidance on Administrative Records for
Selection of CERCLA Response Actions" (March 1,1989).
OSWER Directive No. 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OSWER Directive No. 9834.10A, "Model Notice Letters" (February 7,1989).
Lee Thomas, "Issuance of Administrative Orders for Immediate Removal Actions"
(February 21,1984).
Courtney Price, Lee Thomas, "Use and Issuance of Administrative Orders Under
Section 106(a) of CERCLA" (September 8,1983).
OECM/OWPE, "Guidance on CERCLA Section 106(a) Administrative Orders" (To Be
Issued).
Manuals OSWER Directive 9230.0-3B, Community Relations Handbook (November 1988).
OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 27,
1987).
OSWER Directive 9360.0-02B, Removal Cost Management Manual (April 1988).
Office of the Comptroller, Superfund Indirect Cost Manual for Cost Recovery Purposes
FY 83 Through FY 86 (March 1986).
OSWER Directive 9360.0-033, Superfund Removal Procedures. Revision Number Three
(February 1988).
OSWER Directive 9200.3-01 A, SCAP Manual (updated annually).
-20-
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COMPREHENSIVE SITE PLANNING
I. DESCRIPTION OF ACTIVITY 1
Introduction 1
Objectives of Site Management Planning , 1
Roadmap for Site Activities 1
Role Definitions 1
Activity Timelines.. .1
Accountability Framework. 1
Team Commitments to Objectives 2
I! PROCEDURES AND INTERACTIONS 3
A. Develop Initial SMP 3
B. Develop Detailed Plans 3
C. Site Management Plan Outlines 3
Contents of the Overview Component 3
Site Team and Major PRP Representatives .4
Remedial and Enforcement History 4
Remedial and Enforcement Objectives 4
Schedule of Major Activities 5
Contents of Detailed Plans 5
PRP Search Plan 5
Remedy Selection and Negotiation Plan 6
Site Litigation Management Plan 7
Review and Approval of SMPs 8
III. PLANNING AND REPORTING REQUIREMENTS 9
A. Planning Reflected in SCAP/SPMS 9
B. Budget Projections Based on Schedule and Classification 9
IV. POTENTIAL PROBLEMS/RESOLUTIONS 10
A. Overly-Optimistic Forecasts 10
B. Realistic Division of Operable Units 10
V REFERENCES 11
Guidance 11
Manual 11
Memorandum 11
APPENDIX
-------
COMPREHENSIVE SITE PLANNING
Introduction
Objectives of Site
Management
Planning
Roadmap for Site
Activities
Hole Definitions
Activity
Timelines
Accountability
Framework
I. DESCRIPTION OF ACTIVITY
Comprehensive site planning is an ongoing process of developing and refining an
overall strategy to integrate the remedial and enforcement activities at a site. It is
a critical element in the effective management of Superfund sites.
EPA or the State should develop a Site Management Plan (SMP). The following
material sets out conceptually what each site management plan should strive to
achieve. Although this material will not appear as presented below in a SMP, each
SMP should accomplish the objectives expressed below. Outlines and discussions of
specific content in the SMP begin on page three of this chapter.
For most Superfund sites, it is critical to establish an overall plan which integrates
the enforcement and response activities at the site and coordinates these activities
in pursuit of the specific site objectives. The SMP should provide such a roadmap,
including general site objectives and strategy.
The SMP should define the roles and responsibilities of individual site team members.
These definitions should clearly communicate how each participant's activities and
deliverables contribute to the progress of the site strategy and should provide a
structure within which steady manageable progress can be made toward case
objectives.
Careful planning of timelines is especially necessary to successfully integrate
enforcement activities and response activities since major enforcement and response
milestones characteristically have very long lead times. To coordinate enforcement
and response timelines, advance planning must be based on a clear understanding of
the projected time requirements of each type of activity and a clear understanding of
the interdependencies of the various enforcement and response activities.
For example, to promote PRP agreements to undertake response actions, general
notice letters should be issued well in advance of RI/FS special notice letters.
Moreover, to promote an RD/RA settlement, EPA needs to provide the PRPs with
the draft feasibility study as soon as EPA approves it, updated PRP information as
provided by the special notice provision, past cost information, a draft consent
decree, and a negotiation schedule set by special notice. The preparation of these
materials needs considerable lead time. To avoid delays in the overall project
schedule, the lead activities for all of these milestones should be carefully planned
out. All participants in these lead activities must be directing their efforts to
complete them in a timely, coordinated manner so that later case activities
dependent upon their completion are not delayed.
Individuals should be held accountable for their specific assigned responsibilities for
component activities. This should include the responsibility for coordinating other
team members' activities that are necessary to perform the component in question.
-1-
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Team Commit- Because so many different participants are involved in moving Superfund cases and
ments to decision-making to successful conclusions, it is important to be sure that all
Objectives participants are committed to common (or at least consistent) objectives for the site.
To avoid last minute vetoes of site activities, this commitment should be obtained
early in the site development process; it should be ratified at high levels of
management in all involved offices; and it should be reaffirmed frequently, especially
if site objectives undergo revisions as site awareness and strategy develop.
-2-
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A. Develop
Initial SMP
B. Develop
Detailed
Plans
C.
Site
Management
Plan Outlines
II. PROCEDURES AND INTERACTIONS
It is important to maintain a general roadmap to site activities to assure a coherent
context for planning and conducting the specific site activities. The SMP evolves
over time and becomes more precise as the site passes through four different
phases. The initial plan should be developed when the site team is first assigned to
the site. The initial plan should be keyed into the long-term strategy as set forth by
the Regional SCAP and should be consistent with the quarterly targets contained in
the SCAP. The flowchart in Exhibit 111-1 presents the Region I view of the timeline
for a typical Superfund site. This timeline provides the basis for site teams to know
when to initiate the various pieces of the site management planning process. It is
important that the timeline contain as much detail as possible and that the site team
adhere to it.
At four key points in the Superfund process, more detailed plans should be developed
and approved by team members. The specific plans are intended to perform the
same functions as the overall roadmap - integrating enforcement and response
planning in pursuit of clearly articulated case objectives, defining roles and
responsibilities of site team members, establishing a framework for accountability for
the specific activities, and obtaining commitments of all participants to the
objectives, activities and schedules. The specific activity-oriented detailed plans are:
PRP Search Plan
RI/FS Negotiation Plan
RD/RA Selection and Negotiation Plan, including Pre-Negotiation Mini-
Litigation Report
Litigation Management Plan.
The following pages contain a brief discussion of the contents of the general
information and objectives overview component of the SMP. This discussion is
followed by outlines of the four detailed plans: PRP Search Plan, the RI/FS
Negotiation Plan, the RD/RA Selection and Negotiation Plan, and the Site Litigation
Management Plan. The section concludes by addressing the review and approval of
SMPs.
Contents of Each SMP should have a general information and objectives component, the
the overview, which is updated with current information at least as often as each new
Overview detailed plan is prepared. At each point where a major change or addition is made to
Component the overview or to the detailed site plans, the items in the case overview should be
reviewed, revised as necessary, and included as part of the current SMP. A sample
of the overview component of the SMP is included as an appendix to this chapter. In
general, the overview provides the following:
-3-
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Site Team and Mqior Potentially Responsible Party (PRP) Representatives
Site team members should be identified as early as possible. Site team members
should include the RPM, the Office of Regional Counsel (ORC) attorney, and, as
appropriate, representatives from the following offices: OWPE, OECM, DOJ, State
Attorney General's office, State environmental agency office, and Federal and
State natural resource trustee offices. The overview component should always
include up-to-date telephone and "fax" numbers for each team member. For PRP
representatives, including legal, contractor and group or committee members, their
name, title, office and telephone number should be provided.
Remedial and Enforcement History
The description of the site history should provide a brief summary of the response
and enforcement activities at the site. The level of detail should be sufficient to
provide all relevant historical information necessary to allow site team members to
adequately evaluate all current components of the SMP. The description should be
updated in successive iterations of the SMP as necessary to meet this level of detail.
Remedial and Enforcement Objectives
The clear articulation of site objectives and the commitment of all site team
members to the identified objectives are necessary cornerstones upon which a
successful Superfund case can be built. It is crucial that all team members
accurately convey their institutional objectives (which may not be shared by other
team members) for each site so that all team members can focus their efforts on
clearly identified consistent objectives. Overall site objectives can be expressed
through:
Identification of major response action objectives based on present
assessment of site environmental conditions (e.g., planning to assure
response actions appropriate to the degree of knowledge about and urgency
of site conditions)
Identification of programmatic and legal objectives of enforcement
negotiations and actions (e.g., use of favorable factual context to establish
legal precedent or early pre-litigation settlement to avoid exceedingly
complex and costly litigation)
Discussion of relationship between remedial objectives and enforcement
objectives (e.g., desire to establish litigation precedent may or may not be
consistent with the degree of need for early environmental response at the
site)
Discussion of whether the site is a 10 percent or 50 percent site with regard
to the State contribution needed for the RA and whether the State will have
this cost share available for the site.
-4-
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Schedule of Major Activities
It is important to describe an overall blueprint for the major activities necessary to
meet the site objectives in order to establish and maintain, among the site team
members, a shared view of the "big picture" throughout the case. The major
activities include primarily items which are SCAP commitments or major
enforcement targets in current years or in out-years, e.g. ROD commitments or cost
recovery deadlines. This blueprint may change over time and it should be updated
whenever major changes occur.
The flowchart in Exhibit 111-2 is an example of the level of specificity appropriate for
the general timeline for a site management plan. Critical points where the timeliness
of enforcement actions could affect response activity should be indicated on the
timeline.
Contents of Following are outlines of the contents of the PRP Search Plan, RI/FS Negotiation
Detailed Plan, RD/RA Selection and Negotiation Plan, and Site Litigation Management Plan.
Plans These outlines represent the level of detail that should be appropriate for the
majority of sites. Expanded outlines for complex situations or sites are being revised
by the Office of Waste Programs Enforcement (OWPE).
PRP Search Plan
1. PRP Search Planning and Initial Strategy
a. Identify contractor and staff resource needs
b. Summarize team roles and responsibilities for managing and
performing PRP search tasks
c. Discuss the schedule of the PRP search in relation to the overall site
timeline.
2. Initial Assessment and PRP Search
a. Summarize information collected to date
b Develop strategy for collecting and using information
Develop PRP correspondence tracking system and evidence files
- Follow-up on recipients who fail to fully respond
c. Conduct initial search, including; title search and interviews with
Federal, State and local government officials. (The usual focus is
first on owners and operators and then generators and
transporters.)
3. Interim Assessment
a. Conduct analysis, identify issues and project follow-up and additional
PRP search needs, including unique strategies
-5-
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bi Ensure information regarding PRP liability is well documented
c. Describe steps for PRP notification and information exchange
d. Develop a PRP list, including names and addresses.
4. Conclusion of PRP Search
a. Indicate actions to enhance inter-PRP and PRP/government
relations, such as: encouraging PRPs to form a steering committee,
providing information to PRPs and encouraging PRPs to use a
facilitator to resolve disagreements
b Assess ability to develop volumetric rankings and NBARs
c. Complete information collection (including use of subpeonas),
distribution of information (to include Administrative Record
coordinator and community relations coordinator), documentation of
evidence and notification (including special notice).
Remedy Selection and Negotiation Plan
1. Schedule and Staffing Requirements
a. Provide a schedule for completing the negotiations (including
activities, staff and contractor support)
b Describe coordination with State and other government offices.
2 Negotiation Objectives
a. Develop initial and bottom-line negotiation positions
b. Assess the desirability of a PRP RI/FS relative to site and PRP
history to date
c. Identify potential for alternative settlements, including mixed funding,
de minimis or partial settlements (usually for RD/RA).
3. Costs Incurred and Cost Recovery Plan
a. Summarize costs incurred to date and estimate future response
costs at the site
b. Develop negotiation strategy for cost recovery, including the degree
of compromise available on past and oversight costs and the linkage
between recovery of past and oversight costs and PRP
performance
c. Describe the methods used to document costs for the site and
identify sources for cost documentation requests
d. Assess timing of demand, considering statute of limitations, etc.
4. Remedy Selection Process
a. Discuss the methodology used in selecting a site remedy (identifying
participants in RI/FS review; ROD preparation; PRP and public
-6-
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participation in the process; and compilation, reviewing, updating and
certification of the Administrative Record)
bi Indicate how remedy selection affects the RD/RA negotiation
process.
5 Criteria For Good Faith Offer
a. Include PRPs willingness to conduct or finance site clean-up activities
and reimburse EPA for oversight activities, response to EPA's
statement of work, demonstration of PRP capabilities, etc.
6. Enforcement Prerequisites
a. Discuss the progress made in identifying PRPs and PRP willingness
to cooperate with the government
b. Assess enforcement potential including determination of imminent
and substantial endangerment, strength of evidence/liability,
financial viability of PRPs, etc.
c. Assess use of enforcement tools including special notice, unilateral
actions, actions against recalcitrants, etc.
7 Technical Requirements For PRP Performance
a. Develop scope of work or work plan
b. Describe key items required to conduct PRP oversight
c. Assess the site access situation.
8. Draft Administrative Order (AO) or Consent Decree (CD), as appropriate
Site Litigation Management Plan
(This plan should be prepared in close coordination with the Department of Justice
and should incorporate other guidance, as appropriate, including the Model Litigation
Report, Negotiations Checklist and Pre-Referral Negotiations Procedures.)
1. Litigation Schedule and Staffing Requirements
a. Provide a schedule for completing litigation activities (including
activities, staff and contractor support)
b. Summarize the specific team responsibilities for managing and
performing litigation, along with dates for starts and completions
c. Assess enforcement progress to date in the litigation plan.
2 Objectives of Litigation
a. Discuss litigation objectives set by the site team and the reasons for
their selection
-7-
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b Identify the potential alternatives (e.g., return to negotiation posture
or different legal options to achieve litigation objectives).
3. Litigation Strategy
a. Identify the initial and bottom-line litigation points in the plan and
reasons for the positions.
Review and The original SMP and all of its revisions and specific plans should be reviewed and
Approval of concurred on by all team members. It is intended to be the primary vehicle for
SMPs obtaining management concurrence on case objectives and strategy. Therefore,
team members must be certain to obtain sufficient management review and approval
to assure concurrence by their management. Site teams thereby should be
empowered to operate within the contours of approved SMPs with the expectation of
complete management support for all details of the plan unless the facts or policies
underlying such support change materially.
Each Region must develop a management review and concurrence process that is
appropriate to its organizational structure and lines of authority. The involvement of
Headquarters and DOJ should be built into the Regional process in accordance with
the operative delegations or case-specific agreements.
-8-
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III. PLANNING AND REPORTING REQUIREMENTS
A. Planning Comprehensive site planning and the SCAP/SPMS process serve a common
Reflected in purpose. Both ensure a steady flow of sites through the response process.
SCAP/ Therefore, it is essential that the site planning process be merged with the yearly
SPMS Superfund planning process. For detailed information on the SCAP planning process,
use the annual SCAP manual.
0. Budget RPMs are responsible for keeping data on the project up-to-date. Without accurate
Projections and current data, the Agency's planning tools will not work effectively. The RPM
Basedon has the responsibility of providing accurate site information for CERCLIS. This data
Schedule and should be updated monthly. Exhibit 111-3 is an example of a completed CERCLIS Site
Classifica- Information Form (SIF) for site/incident planning. RPMs should complete the SIF
tfon using the following sample outline of fields:
A. Site Name
B. EPA ID Number
C. FMS Site/Spill Number
D. Alias Name
E Street
F. City
G. County
H State
I Zip Code
J. LL Source
K. Federal Facility
L Fed-Agency-PRP-Flag
M. State-PRP-Flag
N. PRP Agency Code
0. Site Name Source
P. Municipal-PRP-Flag
Q. Site/Incident Abstract
R Site Classification (FE = Federal Enforcement -- all Federal facilities should
be coded with an FE-lead. Otherwise, the code is entered after the
completion of the PRP Search.)
S. NPL/Status Indicator
T. Proposed NPL Update Number
U. Site Category
V. Ownership Indicator
W Incident Type (if applicable).
-9-
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IV. POTENTIAL PROBLEMS/RESOLUTIONS
A. Overly- RPMs should carefully scrutinize task completion forecasts to determine whether
Optimistic they realistically project future enforcement activity. Overly-optimistic forecasts
Forecasts may create expectations that cannot be met. As a consequence, the orderly flow of
resources to the Region could be disrupted.
B. Realistic The Agency bases its budget allocation on the number of operable units at a
Division of particular site. RPMs must carefully follow Agency guidance in identifying and
Operable reporting the number of operable units at the site.
Units
-10-
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V. REFERENCES
Guidance Region V, "CERCLA Reauthorization Initiatives" (January 1987).
Manual OSWER Directive 9355.1 -1, Superfund Federal-Lead Remedial Project Management
Handbook. Chapters 2 and 3 (December 1986).
Region I, Enforcement and Remedial Activities Under SARA: A Training Manual.
Chapter 1 (May 1989).
Memorandum "Draft Transmittal of the Final Report and Work Products of the Superfund
Enforcement Management Issues Work Group," Attachment 1, "Introduction to Site
Management Planning," Bruce Diamond, Glenn Unterberger (January 5,1989).
-11-
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Appendix
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APPENDIX
Site Management Plan Guidance
EXAMPLE SMP: Case Overview Component
EXAMPLES OF SITE MANAGEMENT PLANS
I. EXAMPLE SMP CASE OVERVIEW COMPONENT
What follows are examples from actual Site Management Plans. They
were selected to give you examples of tasks that may need to be
performed at your site. The examples are in a few different
formats, site management teams should feel free to select or
develop their own formats. The examples do not correlate directly
with the Site Management Plan outline, where they do correlate with
the outline there is an asterisk and site management plan outline
sub-heading indicated.
*A. General Case Information.
*1. Site team identification, phone numbers and FAX numbers.
SITE TEAM MEMBERS
Telephone number
Regional Site Manager: Margaret Velie
Gregory M. Kennan
Barbara O'Toole
Fax
(617) 573-9664
FTS
(617) 565-3443
FTS
(617) 573-9690
FTS
(617)
FTS 475-8205
Regional Attorney:
Regional PRP Coord:
Regional Pub.Aff.Coord. Paul Knittel
State AG
State Site Manager:
OECM Attorney
DOJ Enforcement Atty:
DOJ Defense Atty:
Natural Resource Trustees:
»
*2. Description of Site History
SITE DESCRIPTION
The Charles George landfill is a 70 acre mixed municipal and
industrial landfill located in Tyngsborough, Massachusetts,
(population 7210) near the town of Lowell. The area is mixed
residential and industrial.
Ken Tedford
Ed Parker
Carolyn Tillman
Barbara A. Finamore FTS 633-4112
Eileen McDonough FTS 786-4785
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Site Management Plan Guidance
EXAMPLE SMP: Case Overview Component
The George family has owned the landfill since 1967, and accepted
hazardous waste from 1973 through at least 1976. The site was
closed per State order and listed on the final NPL in 1983.
Removal actions, completed in 1983 and 1984 included partial site
fencing and installation of a temporary above-ground water line to
nearby condominiums.
The area is in a glacial outwash basin. Extensive fractured
bedrock is found at 10-20' below grade. The landfill is
approximately 10' deep in most areas.
Two RODs have been issued for the site. The first was issued in
1983 to select a new, permanent water supply for the condominiums
located near the site. The condominium's wells had caused
contaminated groundwater at the landfill to travel downward and
southward to the condos. The wells were closed by the State in
July 1982.
The second ROD in 1985 selected a full synthetic landfill cap and
appurtenant systems for source control. An "offsite" RI/FS should
be finalized in July 1988 followed by a ROD in September 1988 for
remediation of collected leachate and contaminated groundwater,
sediment and off-gas.
*B. Remedial and Enforcement Objectives for the Case
1. Remedial Response Objectives
A. Complete Second Operable Unit RI/FS to obtain a technical
understanding of groundwater and leachate flow in the area.
B. Review results of second unit RI/FS to ensure cap remedial
action (1st Operable Unit) is protective.
C. Insure use and evaluation of possible emergency (removal)
actions at the site is done in a timely manner and well
documented.
2. Enforcement objectives
A. Insure all potentially responsible parties are identified.
B. Insure all noticed PRPs are clearly documented and criteria
for selecting PRPs is well documented and concurred by
management.
C. Have timely and successful negotiations for remedy
implementation
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Site Management Plan Guidance
EXAMPLE SMP: Case Overview Component
*C. Identification of Major Activities Necessary to Meet
Programmatic. Legal and Enforcement Objectives
1. Remedial Activities
A. Implement the remedy for the Lagoons in a timely manner.
B. Complete the study of the Landfill, approve a ROD for it by
the fourth-quarter 1989 and implement the remedy in a timely
manner.
C. Complete one final study that encompasses the remaining
potential problem areas of the site, make a comprehensive
decision on their remediation and implement the remedy (s)
in a timely manner.
D. Provide for the maintenance of the asbestos landfill.
E. Delist the site.
2. Enforcement Activities
A. Compel the PRPs to implement the lagoons cleanup.
B. Secure an agreement with responsible parties to maintain the
asbestos landfill.
C. Compel the PRPs to implement remedial measures that we
determine are necessary at the Landfill or at other portions
of the site.
D. Recover our past-costs.
*D. General Timeline and General Assignments or Responsibility for
Specific Activities
1. General Assignment of Responsibility
A. Remedial Activities
The RPM is actively working with COM in the development of the
FS. Upon receipt of the draft document, he will function as lead
in coordinating EPA and MA DEQE comments. The RPM will also begin
drafting the ROD as soon as the FS has been placed in final form.
B. Enforcement Activities
1. Responsible Party Coordinator (RPC)
The assigned RPC's primary task is to establish, in final form,
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Site Management Plan Guidance
EXAMPLE SMP: Case Overview Component
the PRP Volumetric Ranking List and Mailings List. In completing
that task, the RPC has reviewed the PRP correspondence files and
developed a PRP Tracking System, which consists of a summary sheet
for each PRP with various pieces of information. The RPC will
address a number of issues in developing the final list,
including: the status of bankrupt companies; identification of
PRPs that have been, or should be, released; and classification of
PRPs as owner-operators, generators and transporters.
In addition, the RPC will oversee the performance of certain tasks
by TES contractors, such as a title search and mass mailings to
the PRPs. The RPC will also be obtaining cost documentation
during the third quarter of FY 86, will ensure that all items on
the checklist are obtained, and will serve as a notetaker and
third party observer during negotiations.
2. Referral package
The RPM will be responsible for drafting the technical components
of the referral package and working closely with the RPC to ensure
that the cost documentation package and other Appendices are
complete.
The ORC attorney will have responsibility for drafting the
litigation report which will accompany the referral.
3. Negotiations
The RPM will take the lead in briefing the PRPs concerning
technical issues. The ORC attorney will take the lead in any
settlement discussions which might lead to a Consent Decree.
All negotiation sessions will be preceded by a coordination
meeting with the State and DOJ at which ORC will present a draft
agenda.
General Timeline
The Case Management Schedule (CMS) consists of both a remedial
component and an enforcement component. The CMS functions as a
tool for the project staff in three key areas: overall project
management, the development of a Record of Decision (ROD), and
the development of a CERCLA Section 107 Cost Recovery Referral
Package. The project schedules are displayed on Task Table
Reports and Gantt Charts. The tables include start and end dates
for each activity as well as an assignment of responsibility for
the performance of the task. The Gantt
Chart visually depicts the start date of each activity and its
duration. It also shows the critical path of the project.
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Site Management Plan Guidance
EXAMPLE SMP: Case Overview Component
A. Remedial Component
The initial task on the critical path towards the signing of a
ROD by the Regional Administrator is the completion of a draft
FS. The schedule completion date for the draft FS is May 26,
1988. Upon receipt of this document, the Project Development
Procedures and ROD strategy as set out in a memo from Merrill S.
Hohman dated December 23, 1987 will be followed. Based on these
procedures, a target date of August 18, 1988 is proposed for the
issuance of a Record of Decision for the site.
B. Enforcement Component
1. Cost Recovery Referral Package
The cost recovery referral package will be developed concurrent
with the ROD. Based on a review of the document inventory/event
chronology, EPA will assess the case and determine what claims a
cost recovery referral should include.
After receipt of the final FS, an update of the cost recovery
documentation will be requested from EPA Headquarters as well as
the Region. An update is only necessary because an original
request was made in January 1985. The process of compiling the
supporting documentation from January 1985 to May 1988 should take
approximately eight weeks. Upon receipt in the Region, all cost
documentation should be collated and summarized in the referral
package. The referral package will be completed prior to the end
of FY 88.
C. Summary
The CMP for Blank, Inc. site presented previously is an ambitious
but realistic project schedule for the issuance of a ROD and the
preparation of a CERCLA 107 Cost Recovery Referral Package. The
remedial schedule is a product of lengthy discussions with EPA's
contractor. As long as adequate funding is provided to the
project, a ROD is an attainable commitment for fourth quarter FY
88.
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PRP SEARCH, NOTIFICATION, AND INFORMATION EXCHANGE
I. DESCRIPTION OF ACTIVITY .1
Introduction 1
Objectives of PRP Searches .1
Liability 2
Strict Liability 3
Joint and Several Liability ....3
Limited Defenses Under CERCLA 3
General Approach to PRP Searches 4
Baseline Search Tasks 4
Specialized Search Tasks 5
Managing the Search Process 6
PRP Search Reports 6
Key Players in the PRP Search Process 6
RPMs 7
Regional Attorneys 7
Civil Investigators 8
Contractors 8
II. PROCEDURES AND INTERACTIONS 10
A. Initiating a Preliminary PRP Search 10
B. Develop PRP Search Plan 10
C. Baseline Search 11
D. §104(e) Letters Issued to Owners/Operators and Follow-up 12
Statutory Authority 13
General Content of 104(e) Letters. 13
Insurance Information 15
Written Response and Due Date 16
E Compile, Organize, and Analyze 104(e) Letter Responses 16
Responding to FOIA Requests 16
Enforcement Strategy for Non-Compliance With Information Requests 17
Administrative Order to Compel Compliance 17
Judicial Action to Compel Compliance 17
F. Baseline Search Progress Review 18
G. Prepare Baseline Report 18
H. Management Review 19
I 104(e) Letters to Generators arid Transporters 19
J. Specialized Investigative Tasks 19
Administrative Subpoena 19
K. Interim-Final Report 20
L Interim Report Follow-up 20
M. General Notice Letters (GNLs) 21
N. Ongoing Information Exchange 23
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III. PLANNING AND REPORTING REQUIREMENTS 24
A. Planning 24
B. Budget 24
C. Reporting Requirements 24
IV. POTENTIAL PROBLEMS/RESOLUTIONS .26
A. Timing 26
B. Clarifying Roles and Responsibilities 26
C. Resource Commitments 26
D. Examples of Enforcing Information Requests 27
The Cannons Sites , 27
Charles George Site 28
V. REFERENCES 29
Policy 29
Guidance. 29
Memoranda. 29
Manuals 29
Training 29
Contacts 29
VI. ACTIVITIES CHECKLIST 31
APPENDIX
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PRP SEARCH, NOTIFICATION, AND INFORMATION EXCHANGE
L DESCRIPTION OF ACTIVITY
Introduction The Potentially Responsible Party (PRP) search process is an investigation into the
parties associated with a Superfund site who may be liable for the costs of remedying
the release of hazardous substances. Effective PRP searches are fundamental to the
Agency's enforcement strategies of obtaining increased PRP involvement in conducting
response activities and cost recovery. For remedial sites, searches should be completed
within one to one and one-half calendar years of the site's proposed listing on the NPL. In
general, a PRP search should be initiated concurrently with the listing site inspection, or
at the latest, by the initiation of the listing process.
Objectives of
PRP Searches
Exhibit IV-1 presents an overview of the flow of activity during the PRP search.
PRP searches accomplish several primary objectives:
Identify potentially responsible parties who may be liable under section 107 of
CERCLA and provide the information needed to issue general notice letters
Provide information for special notice letters
Provide names of PRPs to be included in community relations mailing lists
Provide information to assess possible full settlements for litigation risks in light
of the PRPs' liability and ability to pay response costs, partial settlements for
the appropriateness of the settlement case remaining against the non-settlors,
and statutory factors (e.g., de minimis)
Provide information on disposal for the remedial investigation (Rl)
Provide information on whether wastes are RCRA hazardous wastes for
assessing potential ARARs
Document evidence that may be used in cost recovery (section 107), CERCLA
section 106 actions, access actions and for liens.
Additionally, the Agency has found that a thorough PRP search enhances EPA's
success in negotiating with PRPs to conduct the response activity under EPA
supervision.
The extent of the initial search activities is determined by the nature of site activities.
At time-critical removal sites, the initial search is limited in scope. In contrast, the initial
search activities at long-term remedial sites generally are extensive. Although there
may be differences in the scope of initial search activities at removal and remedial sites,
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the objectives of all PRP searches, as stated previously, are the same. This chapter is
oriented primarily to PRP searches at remedial sites. At removal sites, evidence of
liability must be obtained for section 106 unilateral administrative orders and cost
recovery. While the elements of a search at a removal are often similar to a search in
connection with the remedial process, time constraints and the level of expenditures may
warrant a modification of the approach. PRP searches at removal sites are discussed in
Chapter II, Removals.
Early identification of PRPs enables the Agency to promptly issue General Notice
Letters (GNLs). The early issuance of GNLs facilitates the formation of PRP steering
committees. Also, provision of waste-in information facilitates the PRPs1 agreement on
allocations of costs. These negotiation techniques are discussed in detail in Chapter V,
RI/FS Negotiations and Chapter VIII, RD/RA Negotiations.
When PRPs are identified and notified early in the remedial process, there is a greater
possibility that they will decide to undertake appropriate cleanup actions. Also, identified
PRPs may help EPA locate other PRPs to share the costs of the response activity.
PRP involvement in the clean-up is generally in the interest of both EPA, which can
thereby conserve Fund money, and the PRPs, who avoid the transactional costs of
litigation.
RPMs should utilize the expertise of Regional attorneys, the civil investigators, and
outside contractors to conduct the numerous tasks of the actual search. In theory, PRP
searches should begin as early as possible. However, as a practical matter, the
exigencies of the site determine the scope of the initial search activities. Search
activities should continue during the response action until all reasonably identifiable
parties have been located.
Liability CERCLA imposes liability where there is a release or threatened release of hazardous
substances from a facility. Liability is imposed on four classes of persons, these classes
are defined as:
• Present owners and/or operators
Present owners or operators of a facility are liable even if they did not
contaminate the property. This may include lessors.
Past owners and/or operators
Past owners or operators are liable if they owned or operated the
facility at the time hazardous substances were disposed of. Under
CERCLA, disposal is not limited to direct deposits.
Persons who arranged for either the treatment and/or disposal or the
transportation for treatment or disposal of hazardous substances (e.g.,
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Exhibit IV-1
Overview Of The PRP Search Process
Site
Discovery
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Strict
Liability
Joint and
Several
Liability
Limited
Defenses
Under
CERCLA
generators). In the context of a generator, several elements must be proven to
establish liability:
The generator disposed of or made arrangements for the disposal or
treatment of hazardous substances;
The generator's hazardous substances or hazardous substances of the
same type were present at the site; and
An actual or threatened release of the generator's or any other
hazardous substance occurred at the facility. This clarifies the general
element of a release at multigenerator sites.
RPMs should note that this class of parties includes parties such as waste
brokers. The fact that the defendant can show that it arranged to have its
waste dumped elsewhere is irrelevant so long as the Agency can prove that the
waste was disposed of at the facility.
Persons who accept hazardous substances for transport to disposal or
treatment facilities that they selected (e.g., transporters).
Additionally, in cost recovery actions, the release or threatened release of a hazardous
substance from a facility must cause the Agency to incur response costs.
If a person falls within one of the four classes of PRPs, section 107(a) of CERCLA
imposes strict liability (i.e., legal responsibility is assessed without regard to fault and
diligence is no defense) for all response costs incurred at the site.
When more than one PRP is involved at a site and the harm is indivisible, such as in the
case of intermingled drums, commingled wastes and contaminated soil or ground water,
the court may impose joint and several liability upon all parties involved at the site. If
joint and several liability is imposed on the PRPs, each PRP involved at the site will be
individually liable for the cost of the entire response action. EPA could collect all the
costs from one PRP. The PRP who paid the costs would then have to seek contribution
from the non-paying PRPs.
Under CERCLA, a PRP's liability is subject only to the very limited defenses listed in
section 107(b). Thus, a PRP, who would otherwise be liable under section 107(a) of
CERCLA, can escape liability only by proving that the release or threatened release
was caused solely by either an act of God or an act of war, or in certain narrow
circumstances, by a third party who was not an employee and who did not have a
contractual relationship with the PRP. In cases where the PRP raises the defense that
the release was caused by a third party, the PRP will be excused from liability only if
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the PRP exercised due care and took precautions against foreseeable acts or omissions
of these third parties. Also, under section 101(35)(B) of CERCLA, a person who
acquired property after the hazardous substance was disposed, may raise the innocent
landowner defense. To assert this defense, the defendant must prove, among other
things, that he/she acquired the property without knowing, or having reason to know,
that hazardous substances were disposed of in, on, or at the property. A private party
may also avoid liability by establishing that it is a subsequent owner of the land who
acquired the site through bequest or inheritance, and that the party exercised due care
and took precautions against the foreseeable acts and omissions of the third party.
General Approach Since the RPM is responsible for managing the response action at the site, it is vital for
to PRP Searches the RPM to understand the Agency's policies and procedures for completing a thorough
PRP search. The purposes of the PRP search are to identify PRPs, obtain information
to satisfy special notice requirements, provide information to assess settlements
including PRPs1 liability and ability to pay, and to obtain evidence for potential section 106
orders and litigation.
It is important to develop a PRP search plan. In general, the initial stage of a PRP
search will involve ten baseline tasks. These are followed by development of a baseline
report, which summarizes the findings. Depending on the complexity of the site, one or
more of 18 additional specialized tasks may also be required. Once these are complete,
an interim-final report is issued.
Baseline For reasons of budget, timing, and standardizing site management, EPA has selected a
Search core group of tasks to be conducted at most sites. There are 10 core search tasks that
Tasks should be executed during most "baseline" searches. The tasks are intended to provide
the Agency with basic information about the site and the PRPs1 involvement at the site.
At some sites, such as manufacturing facilities where off-site generators were not
involved, the search strategy may be tailored to fewer than 10 tasks. In most cases,
the level of effort (LOE) for completing these 10 tasks ranges from 200 to 500 hours,
depending on site complexity. These tasks are set forth below:
Agency record collection and file review
Records compilation
Interviews with government officials
Title search
History of operations at the site
PRP name and address update
PRP status/PRP history
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Financial status
CERCLA 104(e)/RCRA 3007 letters
Report preparation.
Depending on the circumstances, it also may be appropriate to include specialized
tasks such as aerial photographs and compliance history evaluations in the baseline
tasks.
Specialized At complex sites with multiple generators, the completion of these 10 basic investigative
Search tasks does not conclude the PRP search. To conduct a thorough search, the search
Tasks strategy should provide for additional tasks and document the rationale. Site-specific
data gathering problems are addressed by using a combination of the 18 additional (i.e.,
"specialized") search tasks, in conjunction with the 10 basic tasks. The 18 specialized
tasks provide further avenues of investigation that assist the RPM and contractors in
uncovering additional information about the PRPs and information about their
involvement at the site. While many of the specialized tasks may be useful in some PRP
searches, the same tasks may not be useful in other searches. RPMs should consult with
an attorney in the Office of Regional Counsel and one of the Regions' civil investigators.
RPMs should exercise professional discretion in determining which of the 18 additional
tasks are most applicable to a particular site.
The 18 additional search tasks are divided into four general categories:
Sources of Information
- PRP File Review
- Private Citizen/PRP Interview
- Field Survey
- Site Sampling
- Site Enforcement Tracking System
- Aerial Photographs
- CERCLA Subpoena Authority
- Private Investigator.
Waste Stream Analysis
- Industrial Surveys
- Process Chemistry Analysis
- Waste Stream Inventory.
Databases
• Transactional Databases
- Correspondence Tracking Databases
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Managing the
Search
Process
PRP Search
Reports
Key Players in
the PRP Search
Process
Document Inventory Databases.
Additional Miscellaneous Tasks
- Compliance History
- Financial Assessment
- Generator Ranking
- Property Appraisal.
The RPM must ensure that all appropriate basic and additional investigative tasks are
conducted at the site. Prior to initiating these tasks, RPMs should formulate a search
plan designed to address site-specific situations (refer to the appendix at the end of this
chapter) using a combination of the 10 baseline tasks with one or more of the 18
additional (i.e., specialized) tasks. The RPM should tailor the PRP search plan to the
circumstances of each case instead of attempting to pigeon-hole the circumstances of
each site into a fixed search format.
In conducting the search tasks, the RPM should manage the tasks in an iterative process;
they are not discrete and insular tasks that are performed only once. When both the
required and the necessary specialized tasks have been completed, an interim final report
will be issued. The investigation should continue after the interim-final report to follow-up
on leads and to fill any data gaps. The PRP search process is described in greater detail
in section II of this chapter.
A PRP search report for a site should present the facts pertaining to the PRPs' liability.
Generally at least two reports will be issued for every search (except in simple owner-
operator situations where the baseline report will usually suffice): the baseline report and
the interim-final report. Usually, the baseline report is issued after the basic
investigative tasks have revealed information identifying site owners and/or operators.
The interim-final report is issued after appropriate additional search tasks have been
conducted identifying generators and transporters. Both reports should follow the format
shown in Exhibit IV-2.
References
OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1987).
OWPE, "PRP Search Supplemental Guidance for Sites in the Superfund Remedial
Program "(June 16,1989).
In addition to the RPMs, there are three key players involved in the PRP search process:
Regional attorneys, Civil Investigators (CIs), and contractors. To achieve "early and
better" PRP searches, RPMs must effectively coordinate their efforts with these other
key players.
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Exhibit IV-2(1)
PRP Search Report Format
PRP Search Report
A. Concise site history including nature of activities during specified time periods and
any sampling results
B. Identification of owners and operators
1. Describe the time periods during which the person owned and/or operated
the facility and state whether the disposal of hazardous substances
occurred during that period
2 Describe title search results
3. Provide copies of complex title analysis narrative plus a title tree and
graphs representing title search results
4. Describe activities of various operators
5. Provide current address and corporate status.
C. Identification of persons who arranged for either the treatment or disposal of the
hazardous substances, e.g., generators.
A. Summarize each of the PRPs1 name and current address,volume and
nature of the substances, and volumetric ranking. (This is for special
notice.)
B. Develop, by PRP, as necessary, a complete waste-in list with
information on the period when the substances were sent to the site,
volume and identity of the hazardous substances (40 C.F.R. §304.2) and
EPA's determination of any RCRA waste codes. Ensure that there are
references to underlying documents and transporters in this list or in the
evidence sheets in Appendix B. (This is a summary of evidence and is
for internal purposes; it is based on the evidence sheets.)
D. Identification of transporters
1. Summarize each of the transporters' names and current addresses,
volume and nature of the substances, and volumetric ranking. (This is
for special notice.)
2 Develop by each transporter, as necessary, a list that
links transporters to generators (and therefore hazardous
substances) to the site, and
addresses whether the transporter selected the site.
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Exhibit IV-2(2)
PRP Search Report Format
E For owners, operators, generators and transporters, assess the identified PRPs'
financial viability (where in question). Identify entities that have been or are in
bankruptcy, corporations that are defunct (no longer in business but not
dissolved), corporations that are dissolved, and individuals that have died, with a
description of the status of their estate. Describe facts in corporate
successorships, parent-subsidiary, and possible invidual liability situations.
R Information for Special Sites:
1. Municipal landfills
2 Area wide groundwater contamination or stream contamination where
sources are not clear (relies on special surveys and the Rl)
3. Remote sites (company with multiple sites and transshipments)
4. Special financial and capacity issues.
G. Other possible PRPs (list PRPs not in parts B,C, or D above due to substantial
evidentiary issues).
Search Report Appendix
A. Evidence evaluation sheet for each owner, operator, generator, and transporter
(include source of information evaluation)
B. Summary of all work conducted during the PRP search
1. Document investigatory steps during the search, including "dead end"
leads
2 Identify persons interviewed and corporations and individuals to whom
information request letters were sent. In addition, identify each response
to the information request letters and any follow-up actions that were
taken. Clearly identify the dates of each of the above activities.
3. Identify leads that could still be pursued
C. Supporting Documentation; assign document control numbers consistent with
information management plan
1. Title document
2 Government documents
3. Interview summaries
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Exhibit IV-2(3)
PRP Search Report Format
4. Manifests, contracts, invoices, etc. (if numerous, assign document
control numbers)
5. Section 104(e) letters and responses (keep separate for FOIA etc.
purposes).
6. Other
D. Location of supporting files.
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RPMs The RPM or Cl, depending on the Region, is responsible for managing the PRP search
process. He/She oversees the search process and provides guidance to the contractor
RPMs and CIs generally perform the following functions:
Establish the PRP search priorities
Establish the PRP search strategy
Manage contractor-conducted search tasks:
Define the scope of the search, in consultation with ORC
Develop PRP search work assignments, budgets, and schedules
Review baseline, interim, and final contractor deliverables, in
consultation with ORC
Introduce the contractor to State and local government contacts.
Issue information request letters
Ensure follow-up on all tasks necessary for conducting a complete search
Implement quality assurance/quality control procedures to ensure the accuracy
of data gathered during the search
• Ensure that adequate information is gathered for special notice letters
• Ensure that adequate evidence of a PRPs1 liability and ability to pay is gathered.
RPMs must coordinate with ORC to determine whether the collected information
contains sufficient information to establish the PRPs' liability.
Regional The ORC attorneys are responsible for directing case development for each site.
Attorneys Attorneys' level of involvement will vary from Region to Region. Some attorneys
participate actively in the search activities. Other attorneys do not get involved in the
process until the review of either the baseline or interim final PRP search report. RPMs
should seek to involve the attorneys as early as possible to ensure that the search
produces sufficient credible evidence of the PRPs1 liability. For example, RPMs should
consult with the attorneys about developing information request letters and devising
appropriate PRP interview questions. Regional counsel also should be consulted on the
scope of the PRP search.
In general, the attorneys can provide advice to the RPM on CERCLA-specific legal
issues, which may have some bearing on the case in general and the search in particular.
For example, the attorneys can provide advice about complex liability issues such as
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corporate successors, and possible legal defenses, such as the innocent landowner
defense.
Civil There are at least two CIs in each Region. CIs have responsibilities in developing a
Investigators Regional PRP search strategy that is consistent with EPA policy and overseeing the
implementation of this strategy. The CIs bring a variety of skills to their position and
can provide the Agency with investigative skills that are often lacking in the contractor
community.
The CI's role in enforcement activities varies from Region to Region. In general, CIs may:
Manage the PRP search, including overseeing the contractor's work assignment
Provide investigative assistance to RPMs and the PRP search work assignment
manager.
CIs usually conduct crucial interviews or follow up investigation leads that were left open
by the contractors. For example, CIs can be used when information is needed about
additional parcels of land and there is insufficient time to assign a contractor to the task.
CIs can also assist the RPM in completing the PRP search in the following time-critical
situations:
Statute of limitations is about to expire
Contractor has provided incomplete information.
In some Regions, CIs play an active role in enforcement activities. For example, CIs
conduct preliminary field work and help define the scope of a contractor's work
assignment. The CI's role may vary depending on the site, and RPMs should coordinate
with Regional management to ensure the proper utilization of Cl resources.
Contractors The Agency secures the assistance of contractors to conduct activities, such as
baseline search tasks. By actively managing and overseeing the processes involved in
the PRP search, the RPMs and CIs should ensure that the contractor produces a quality
product.
Two primary contract vehicles exist for providing support to PRP searches:
Technical Enforcement Support (TES) contractors may provide the following
support:
conduct PRP search
develop databases to support PRP search
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conduct EPA seminars on PRP searches.
Contract Evidence Audit Team (CEAT) contractors may provide the following
support:
conduct PRP search audits and provide results to the Cl
conduct EPA seminars on PRP searches.
The tasks assigned to the contractor should be well defined. The RPM and the Cl should
confirm that the contractor has performed the assigned tasks. One way of doing this is
to require the contractor to submit interim deliverables (e.g., baseline report, status
reports). By reviewing these deliverables, the RPM can confirm that the contractor has
not lost sight of the defined search objectives.
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1 PROCEDURES AND INTERACTIONS
This section is designed to assist the RPM in improving the timeliness and quality of the
PRP search process. Throughout the PRP search process, RPMs must work toward the
objective of locating and obtaining relevant information on the liability of the PRPs.
Exhibit IV-3 provides a flowchart of the specific activities discussed in this section.
A. Initiating a A preliminary PRP search is conducted when a site is discovered. The object of a
Preliminary preliminary search is to determine obvious PRPs who may be available to conduct
PRP Search appropriate response activity at the site. Once the site has undergone a listing
inspection, the RPM must conduct a more extensive PRP search to locate other PRPs.
5. Develop PRP An effective enforcement strategy requires the early and continuous involvement of all
Search Plan key players, including RPMs and civil investigators. The development of a search plan
consists of four activities:
• Develop a plan for managing the PRP search, including the baseline search,
issuance of information request letters, additional search tasks, investigative
strategy for identifying generators and transporters, follow-ups, and evidence
reviews. See the appendix and section VI of this chapter for an outline of
possible considerations. In developing the plan, the RPM should:
avoid the use of generic work plans without considering the site specific
circumstances
work with Regional attorneys to tailor the strategy so that it accurately
reflects the actual search requirements of the particular site
take into account RCRA land ban information needs.
Identify special problems that require specialized strategies, such as:
municipal landfills
area-wide ground-water contamination or stream contamination where
sources are not clear. The RPM should set forth special survey needs
and special investigatory tasks for the remedial investigation.
remote sites, such as where one company owned or operated multiple
sites and transshipped wastes between them.
Develop a detailed resource plan for EPA staff.
Develop a detailed scope of work for contractors that includes phased
deliverables followed by RPM review.
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After the PRP search plan has been formulated, the RPM may begin to implement and
manage the process of collecting and analyzing relevant information about the PRPs.
The contents of a PRP search plan are discussed in Chapter III, Comprehensive Site
Planning and are included as an appendix to this chapter.
C. Baseline Referring to the flowchart presented in Exhibit IV-3, the preparation of a PRP search
Search baseline report may, in a typical case, require six months. The initial steps include
developing a PRP search plan, formulating the work assignment, and reviewing and
accepting the contractor's work plan.
By structuring the execution of the 10 baseline tasks into inter-related and iterative
steps, the RPM can effectively exercise his/her oversight authority. RPMs should note
that this iterative approach is merely one of many logical methods for organizing search
activities. Other approaches may be more appropriate in different situations.
A suggested structure for conducting the baseline tasks prior to the preparation of the
baseline reports is presented below:
Conduct preliminary records review (simultaneously):
conduct title search to identify past and present site owners and possibly
to identify adjacent property owners for possible future reference
identify government agencies that may have relevant information and
collect documents
conduct interviews with government officials to develop information on
site operations that may not be recorded in documents
update and verify names and addresses.
Issue information request letters as authorized by section 104(e) of CERCLA
and section 3007(a) of RCRA to owners and operators.
Perform records compilation, organization, analysis, and follow-up:
collect and copy all owner/operator records
organize files into a useful and easily accessible source of information
develop a concise history of the site and operations at the site and
review for information gaps
obtain additional information about PRPs and their status, including
financial status
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D. §W4(e)
Letters
Issued to
Owners/
Operators
develop a list of other possible PRPs, identifying generators, and
transporters
verify PRP names and addresses. Ensure that any name changes,
mergers, acquisitions, and dissolutions are accurately recorded.
for persons and unincorporated entities, this information should
include association with other PRPs and involvement at the site
for corporations, this information should include the date of
incorporation, whether corporation currently exists, names of
parent or successor corporations
follow up on all leads to ensure a comprehensive identification of PRPs
involved at the site. Confirm that sufficient evidence has been collected
to establish the elements of liability for each owner/operator.
Prepare the baseline report. Refer to the format in Exhibit IV-2.
The initial steps in the baseline search, discussed above, will produce basic information
about the PRPs at a site. The information will identify owners and operators and
provide leads on generators. At sites that operated prior to 1980, "waste-in" information
about generators may be limited. As part of the baseline search the owner or operator
should be required to provide information that is as complete as possible under the
circumstances. Later, as part of the interim final report regarding generators and
transporters, it will be necessary to follow up on time frames, amounts, and the
hazardous substances in the materials.
The contractor can develop an initial list of people who should receive information request
letters; however, the RPM, in consultation with Regional counsel, is ultimately responsible
for selecting the recipients. Information request letters may be issued in one of two
ways: as separate letters or as part of the general notice letter.
Typically, the information requested during the baseline search includes details concerning
the waste operations and waste management practices of the past and present
owners/operators. It also seeks particular information on the time period of disposal or
treatment and on generators (PRPs, including transporters that may have contributed
hazardous substances to the site), transporters, waste volumes, and the nature of the
hazardous substances at and sent to the facility. The RPM should specifically request
information on the RCRA designation of all the waste the PRP sent to the facility or
site. The facts obtained from the recipients will also assist Regional management to
identify additional PRPs, issue additional information requests, and conduct interviews.
The facts collected from the information request letter will help the RPM determine
whether the respondent should receive a general notice letter. For this reason, the
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Agency has articulated a preference for using information request letters to gather the
initial facts about PRPs.
Statutory Section 104(e) of CERCLA and section 3007(a) of RCRA authorize the Agency to issue
Authority information request letters. RCRA section 3007 includes sites with hazardous wastes as
defined in section 1004(s) which is not limited to Subtitle C. The authority to conduct
information gathering activities has been delegated to the AA, OSWER, and the AA,
OECM by Delegation 14-6, "Inspections, Sampling, and Information Gathering, Subpoenas
and Entry for Response" (September 13,1987). Under Delegation 14-6, the authority of
Regional Administrators to issue compliance orders or subpoenas is limited by the
requirement that they must first consult with AA, OECM (or his/her designee). On
November 19,1987, AA, OECM redelegated this consultation authority to the Associate
Enforcement Counsel for Waste.
General The information request letter should include a brief identification and description of the
Content of site. The letter should cite EPA's statutory authority under section 104(e) of CERCLA
104(e) and section 3007(a) of RCRA to request the information. The 104(e) letter should
Letters indicate that the Agency plans to vigorously enforce its information gathering authority.
RPMs should specifically refer to the enforcement provisions in section 104(e)(5) of
CERCLA. RPMs also should give a general statement setting forth the purpose of the
request and its relationship to the overall case.
Recipients should be requested to provide information as indicated in OSWER Directive
9834.4A, "Final Guidance on Use and Enforcement of CERCLA Information Requests
and Administrative Subpoenas" (August 1988). This includes the following categories of
information:
Owners
names and addresses, including updated information
periods of ownership and type of ownership
corporate successorship
site history during ownership including conditions, operations, disposal
(including disposal and the substances disposed of during periods of past
owners and operators of the facility (for liability), and information on
amounts, nature, and locations for the remedial investigation)
information on whether wastes were RCRA hazardous wastes (for
evaluation of potential ARARs)
lessors/lessees and the above information about them
information related to defenses; de minim is status
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for small businesses, individuals with control
Operators
similar to above, except operation
individuals in charge
Financial Information
ability to pay
insurance (PRP's comprehensive general liability and environmental
impairment insurance)
Information that the owner/operator has concerning wastes at the site and
possible generators/transporters
records of names/addresses, quantities, substances
any arrangements made with regard to materials sent to or from the
site
A description of information the owner/operator has on the total and each
shipment of materials transported to, or stored, treated, or disposed at the site
including
dates of shipment or disposal
quantity and nature of the materials
hazardous substances (as defined in 40 CFR §302.4) contained in the
materials. This includes information on the waste and waste stream as
possible RCRA hazardous wastes to enable the Agency to determine if
RCRA may be an ARAR (e.g., land ban)
updated names and addresses
Documents
copies of all business records relating to activities at the site, including
customer lists, gate logs, ledgers, invoices, accounts receivable and back
up income records for taxes, correspondence
Names and addresses of individuals who have information regarding the above
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Any data or studies resulting from environmental investigations at the site
A description of the files searched by the person (or corporation) in response to
the Agency's request
• Special information for particular classes of sites, such as municipal landfills
A description of the recipient person's or corporation's relationship to the site.
The response must be in writing, under oath. The letter should also indicate that the
PRPs are responsible for informing the Agency if any information contained in the PRPs'
response is confidential and subject to protection under section 104(e) of CERCLA.
The Agency's statutory information-gathering authority is not limited to collecting facts
directly relating to the hazardous substance release. EPA has authority to seek any
information that is reasonably calculated to lead to information about the release.
In some cases, the recipient will be unable to provide EPA with the information sought.
Therefore, RPMs should include a request that the person (or corporation) submit an
affidavit describing the scope of his/her investigation if the search does not disclose all of
the information sought. The affidavit must be signed by a corporate officer. The
information request letter should inform the recipient about opportunities for consultation
with EPA.
Insurance Section 104(e)(2)(C) of CERCLA expressly grants the Agency authority to request
Information information relating to a party's ability to pay for or perform a response action. In
effect, the Agency has the authority to ascertain whether a PRPs' insurance policy may
cover and is sufficient to pay for the costs of remedying the damage. RPMs should
inquire about the PRPs' comprehensive general liability and environmental impairment
insurance. RPMs should use two approaches to obtain information about the PRPs'
insurance coverage:
Ask general questions
Request a copy of the policy.
RPMs should be as neutral as possible when requesting information about the PRPs'
insurance policies. RPMs should avoid using terms such as "pollution exclusion," "sudden,"
"non-sudden," or "accidental." These terms have special meaning in environmental
insurance law. Rather, RPMs should ask the PRP to provide information such as the
name of the company(s), the policy number, the effective dates of the policy, and the
"per occurrence" limits of each policy.
RPMs should request that the PRP provide a copy of his/her insurance policy. This is an
effective way for RPMs to obtain necessary insurance information without having the
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PRP risk compromising his/her coverage. If the PRP does send a copy of the insurance
policy, RPMs should consult with ORC to determine the extent of the PRPs' coverage.
Written The information request letter should require a written response under oath in an
Response and affidavit and contain a definite due date. This date should reflect the type and volume of
Due Date information that the RPM anticipates will be necessary for the recipient's answers to be
responsive. Generally, 30 days from the date of receipt is deemed to be an adequate
time for responding.
RPMs should inform the recipient about the possible civil penalties that may be imposed if
the recipient fails to respond. Under section 104(e)(5)(B)(ii) of CERCLA, the Agency
may request that a court impose penalties of up to $25,000 per day for unreasonable
non-compliance with the information request.
RPMs should send the letter by certified mail, return receipt requested. RPMs should
avoid using post office box addresses because there may be no signature to indicate
receipt of the letter. The information on the return receipt provides the Agency with
proof (the signed receipt card) that a representative of the PRP received the letter.
Owner/operator responses to information request letters should be available before the
preparation of the baseline report. The information in the responses should be analyzed
with an eye toward extracting information that can be presented in the baseline report
and the PRP evidence sheets. Refer to Exhibit IV-2 to see the format for this
information. The most important information request issue is review and follow-up;
therefore, it should be noted that a more detailed information request may be issued
after the baseline report has been prepared. In situations where the response to section
104(e) letters appears false, the RPM should refer the situation to Regional Counsel.
Responses to information requests should be organized alphabetically by PRP and placed
in an appendix to the baseline report. The RPM should assure that there is no
unnecessary copying. References to the information contained in a response should be
made to this appendix. By organizing the responses in this manner, the RPM greatly
simplifies the Freedom of Information Act (FOIA) response process in that the
information request responses are readily accessible for review, copying, and
dissemination at the proper time.
Responding to PRPs may request information under the Freedom of Information Act (FOIA). RPMs
FOIA should agree to provide only the information and documents that are within the scope of
Requests a proper request. Under FOIA, the RPM can decline to provide "investigatory records
compiled for law enforcement purposes...to the extent that the production of such records
would interfere with enforcement proceedings." The RPM also may decline to provide
pre-remedial deliberative process material under FOIA exemption 5. RPMs should provide
£ Compile,
Organize,
and Analyze
104(e)
Letter
Responses
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Enforcement
Strategy for
Non-
Compliance
With
Information
Requests
only the information that the statute requires. PRPs who do not respond to information
requests are not given information until they respond. RPMs should not send the PRPs
an entire copy of either the baseline or interim-final reports. If RPMs have any questions
as to the appropriateness of complying with the FOIA request, they should contact one
of the attorneys in ORC.
If recipients of 104(e) letters ignore EPA's requests for information within the specified
time (usually 30 days) or provide incomplete answers, the Region can implement the
following enforcement strategies:
Issue an administrative order to compel compliance with the request for
responsive written information
• Initiate a judicial action seeking:
a court order compelling the recipients to provide the requested
information and/or documents and
civil non-compliance penalties.
The RPM should consult with the Regional attorney to decide which enforcement
strategy to implement at a particular site.
Administrative Order to Compel Compliance
Under section 104(e)(5)(A), the Agency can issue an administrative order to compel
compliance with the information request. Administrative orders are issued by EPA and
involve a notice and an opportunity for consultation. Consequently, EPA can respond
promptly to a recipient's non-compliance. However, if the recipient continues to ignore the
request for information, the Agency will have to refer to DOJ a petition to enforce EPA's
administrative order. This process may be time-consuming.
Judicial Action to Compel Compliance
Section 104(e)(5)(B) of CERCLA provides the authority to initiate a civil lawsuit to
compel a person to respond to the Agency's information request and substantial
monetary penalties against a PRP who fails to respond. These civil penalties are based
on strict liability. EPA does not have to prove that the PRPs intended to violate the law
by not responding in a timely manner. Therefore, the fact that a recipient says that
he/she did not intend to violate the law is irrelevant. The PRP is still subject to civil
penalties imposed by the court.
When the Agency refers a case to DOJ to enforce an information request, the referral
should be handled in accordance with the procedures set forth in "Expansion of Direct
Referral of Cases to the Department of Justice" (OECM, January 1988). In time-critical
situations, the RPM should refer to "Procedures for Processing Oral and Other Expedited
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f. Baseline
Search
Progress
Review
G. Prepare
Baseline
Report
Referrals" (OECM, December 1987) and "Waste Procedures for Processing Oral and
Other Expedited Referrals" (OECM, April 1988).
Section IV of this chapter discusses specific case examples where the Agency used
judicial action to enforce its information requests.
The RPM is responsible for managing the search in accordance with the strategy,
updating the strategy as necessary, and meeting schedules. Exhibit IV-3 shows these
responsibilities in detail.
RPMs must ensure that sufficient follow-up is being made to site information so that the
baseline report contains complete and accurate information in light of its limited purpose.
This is particularly important with regard to owner/operator liability and financial
viability, updated PRP names and addresses, information from owners, operators and
the State about the volume and nature of substances sent to the site and the
contributing parties, and the information that is being used to determine whether a person
should recieve a notice letter and the evidence of each PRP's liability. It is important to
review responses to section 104(e) requests for completeness. RPMs must also ensure
that the leads that are uncovered by the contractor during the investigation are followed
up and that the action taken is properly documented. Follow-up letters to section 104(e)
requests may be needed when the PRPs fail to respond adequately or EPA identifies
other relevant pieces of information.
It is important that both the contractor and the RPM keep records of initial and follow-up
actions and determinations so that a well-documented trail is maintained. Contacts with
both interviewees and records sources should be documented. This ensures that if in the
future, due to needs for further evidence or changed personnel, the investigation were to
be reconstructed, sufficient documentation would exist to determine what leads had been
followed-up and how all reasonably available sources of information had been exhausted.
This written record will attest to the thoroughness and completeness of a particular PRP
search.
The baseline report presents a concise summary of the information obtained from the
baseline search activities. Back-up information is set forth in supplemental appendices. In
effect, the baseline report is an interim report that contains available information in the
areas specified in Exhibit IV-2. It provides information on the owner/operators and
provides leads on generators and transporters, enabling the RPM and Regional
management to assess the extent and nature of gaps in the PRP data.
RPMs, with the input of ORC and the Cl, should carefully review the report to determine
whether it is likely that all possible PRPs have been listed, the completeness of waste-in
information, and the sufficiency of the information documenting a PRP's liability and
financial viability. All information in the report should be attributed to a specific source.
Reports are enforcement confidential. RPMs should ensure that the cover of the report
clearly states that it was prepared in anticipation of litigation. This enables the Agency
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to protect the information contained in the report. Any copies of reports should be
numbered for tracking purposes.
H Management Regional supervisors, with ORC, RPM and Cl inpjt, will review the baseline report to
Review determine whether the search activity at the site has generated the information needed
to identify all PRPs, determine their contribution to the site, and establish their liability
and viability. In addition, the review should consider the reasons for pursuing or not
pursuing leads uncovered by contractors. The search strategy should be updated in view
of the baseline report and management review. During the review process, RPMs should
continue search activity, such as follow up on section 104(e) requests. The review is
intended to facilitate, rather than impede, the information-gathering process. Once the
review is complete, the person in charge of the search should ensure that the search
personnel and contractors implement all suggested changes and follow-up activities.
/ 104(e) The approach for issuing information request letters to persons who arranged for
Letters to disposal, hereafter called generators, and transporters is similar in scope to the
Generators procedures involved in issuing letters to owners and/or operators. The 104(e) letters
and issued to generators should request information regarding their liability. In addition, RPMs
Transport- should seek information to resolve the issue of whether the substance was a listed or
ers characteristic hazardous waste as defined by RCRA.
Listed hazardous waste is defined in 40 C.F.R. § 261.30. Each listed waste has an EPA
Hazardous Waste Number that precedes the name of the substance. Under 40 C.F.R.
§261.20 a substance may also be deemed to be RCRA waste if it exhibits the following
characteristics: ignitabililty, corrosivity, reactivity and EP toxicity. To determine
whether the substances present at a particular site meet this criteria, RPMs should
consider asking questions along the following line: "For all waste sent to the facility or
site, identify any known RCRA listing designation as defined by 40 C.F.R. § 261.30. If it
is unknown whether the wastes sent to the facility or site would be listed wastes if
generated after 1980, describe the chemical processes of each waste stream in sufficient
detail to enable EPA to determine whether the waste is listed, including information on
'characteristics' designation under RCRA."
d Specialized As part of the revised search strategy, RPMs should consider which of the 18 specialized
Investigative tasks are needed to conduct a thorough search. Refer to "Managing the Search
Tasks Process" in Part I of this chapter for a description of when to use these specialized
tasks. RPMs should exercise their professional discretion when determining which tasks
to conduct at a site. When appropriate, the specialized search tasks may be completed
concurrently with the 10 baseline tasks.
Administra-
tive Subpoena
Administrative subpoenas are authorized under section 122(e)(3)(B) of CERCLA. A
subpoena compels an individual to answer questions under oath, and when requested, to
produce documents. The Regional Counsel will secure issuance of the subpoena and
select the location for the proceeding. If the witness ignores the subpoena, the Regional
Counsel will prepare a referral to seek an order compelling the witness to respond.
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K. Interim-Final
Report
L Interim
Report
Folbwvp
As a practical matter, administrative subpoenas may be useful in obtaining information
from the following types of persons: former employees of the PRP company, persons
living near the site, and officers of the PRP company. When developing a list of potential
witnesses, the RPM should confirm that the contractor has not overlooked any plausible
source of information. For example, the old man who sits in the shack at the landfill and
the truck drivers who drove the PRPs' trucks may be able to provide a wealth of
information about the PRPs' waste management practices.
While there is no statutory authority prohibiting the use of administrative subpoenas for
gathering initial information, RPMs should not use subpoenas for this purpose. The
Agency has stated a preference for using information request letters to obtain initial
information about a person's involvement at the site. Subponeas inherently support the
settlement process by increasing the amount of relevant information.
As indicated by the name, the interim-final report is not viewed as an end in itself.
Rather, the interim report is one of the many steps in the overall investigation. The
investigation at a site should continue until all necessary reasonably obtainable
information pertaining to a PRPs' liability and viability is collected.
The time at which the interim final report is completed varies, depending on the response
activity schedule for the site and the progress that is being made on the PRP search.
Ideally the report should be available in time for issuance of the SNLs and the release of
information on the names and addresses of the PRPs, and the volume and nature of
substances sent to the site. If possible, this takes place approximately six months before
the RI/FS special notice letters are issued. In some cases, particularly multi-party sites,
it may be necessary to prepare preliminary information in order to issue general notice
letters, special notice letters, and to release information to the PRPs. Updated versions
of the report can then be prepared for the RD/RA special notice and, possibly, for
CERCLA sections 107 and 106 actions. The format that should be followed for all PRP
search reports is shown in Exhibit IV-2.
RPMs/CIs should focus their attention on the facts contained in the report and not
lengthy historical or other narratives. RPMs should consider using evidence summary
sheets. This format focuses the research on the type of information needed for
evidence. The evidence sheet format also standardizes the data presentation so that it
is more readily transferrable to a tracking system or inventory data base.
When reviewing the interim-final report, the RPM must confirm that the contractor has
carefully documented the rationale tying each PRP to the site and that the report
substantiates the evidence.
Information on new PRPs, as well as additional evidence on the liability of existing PRPs,
is likely to be uncovered after the completion of the interim-final report. For this reason,
a PRP search is an on-going investigation. The search does not end with the completion
of the interim-final report, the issuance of general and special notice, or the release of the
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contractors from the PRP search work assignment. A PRP search is completed when
reasonable leads concerning a person's involvement at a site have been exhausted,
taking into account the amount obligated for the response action or a settlement. It
should be noted that in many situations, circumstances may require that the search
continue throughout the course of the RI/FS, and possibly, into the RD/RA.
In addition to being an ongoing investigation, a PRP search, in some cases, is never really
closed. To compensate for the ongoing nature of search activities at a multi-party site,
the interim-final report may be submitted on a preliminary basis in time for general or
special notice, and on an interim-final basis when all search activity and follow-up for the
preliminary report is completed.
M General General notice letters designate an entity as a PRP. These letters are preliminary
Notice determinations of potential liability, as opposed to absolute determinations of liability.
Letters Therefore, there is no requirement that the RPM must possess substantial evidence of a
(GNLs) person's liability before a GNL can be issued. Besides designating a person as a PRP,
the GNLs are used to encourage PRP coalescence, an important step prior to
negotiations. Therefore, GNLs should be issued as early in the PRP search process as
possible.
GNLs generally contain the following information:
Notification of potential liability under sections 106 and 107(a) of CERCLA,
including notification that
section 107 authorizes the Agency to initiate cost recovery actions
to recover all costs not inconsistent with the NCP incurred in
responding to the release or threatened release of hazardous
substances
section 106 authorizes the Agency to issue administrative orders
compelling the PRP to implement the response selected by EPA to
abate an imminent and substantial danger caused by the release or
threatened release of hazardous substances.
Discussion of any planned response measures, to the extent known; the
Agency encourages PRPs to voluntarily perform or finance those response
activities that EPA determines to be necessary at the site.
Information about the Agency's discretionary authority under section 122(e)
of CERCLA to formally negotiate the terms of settlements pursuant to
special notice procedures if EPA determines that such procedures would
facilitate an agreement and would expedite remedial action at the site.
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Information about the general opportunity to discuss any selected response
measures and opportunities to undertake the selected response action,
including
the merits of forming a PRP steering committee
a response date for the PRPs to respond, in writing, indicating their
willingness to participate in the response activities at the site
a name and a phone number of the EPA contact for PRPs (or their
attorneys) to call.
Information about the development of the Administrative Record pursuant to
section 113(k) of CERCLA.
RPMs should use their professional judgment to tailor the contents of GNLs to
accommodate the circumstances at a specific site. GNLs should be sent by certified
mail, return receipt requested. A formal record documenting the PRPs' receipt of the
letter should be created. RPMs should carefully document all subsequent correspondence
(phone calls or letters) received from the PRP or the PRPs1 attorneys.
In general, the standard governing who receives a GNL is based upon a reasonable belief
that a potential recipient may be a PRP. Certainty is not required. GNL recipients must
be approved by both Regional management and ORC. RPMs should carefully consider
the question of who receives a GNL. Once a person or corporation has been designated
as a PRP and issued a GNL, their name will be released as a PRP in response to FOIA
requests about the site.
GNLs should be issued in "waves" as soon as the necessary information becomes
available, and they should precede special notice for the RI/FS. The first wave is issued
when owners and operators are identified. Subsequent waves are issued as groups of
generators and transporters are identified. Finally, additional letters are sent to PRPs
who have been identified by other PRPs through negotiations. If special notice letters for
RI/FS are scheduled and general notice letters have not been issued, GNLs need not be
sent if they would not advance the process.
Copies of GNLs should be sent to:
Information Management Section of the Program Management and Support
Office of OWPE at EPA Headquarters
Regional Administrative Record Coordinator
Regional Community Relations Coordinator for inclusion on the community
relations mailing list
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Appropriate State representative
Federal and State natural resource trustees.
References
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).
OSWER Directive 9834.10A, "Model Notice Letters" (February 7,1989).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing Lists" (February 6,
1989).
It Ongoing Following general notice, RPMs may hold informal discussions with the PRPs (as
Information distinguished from the formal negotiations pursuant to special notice procedures). If
Exchange PRPs are represented by an attorney, Regional Counsel must be present. These
informal discussions generally result in an ongoing exchange of information. A PRP is
generally provided a copy of any information EPA may have regarding that PRP
following the PRP's response to an information request. More broadly, as soon as is
reasonably possible, the RPM should provide the PRPs with information on the names,
addresses, volumes, and nature of substances from all PRPs.
To facilitate this exchange of information, the RPMs should propose a meeting with the
PRPs. These informal meetings enhance the likelihood of successful negotiations. In the
event that these informal talks break down, RPMs should work closely with Regional
attorneys to develop a realistic negotiation strategy.
-23-
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A, Planning
B. Budget
C. Reporting
Require-
ments
H. PLANNING AND REPORTING REQUIREMENTS
The RPM should implement a management strategy that tailors the PRP investigative
tasks so that the PRP search works in conjunction with the overall enforcement
strategy at a particular site. The Agency has made a commitment to improve the
timeliness and completeness of PRP searches. RPMs should seek the assistance of
ORC attorneys and other key players early in the search process to achieve high-quality
PRP searches early in the process.
In general, RPMs or CIs should initiate PRP searches before the site is proposed for
inclusion on the NPL. Ideally, the PRP search should be completed shortly after the NPL
proposed listing. The interim-final PRP search report should be completed at least 90
days before the funds are obligated for a projected RI/FS start. For SCAP reporting
purposes, a PRP search is deemed to be complete when either the site classification
report has been issued, or when the site classification has been otherwise determined.
The standard PRP search budget is $50,000. This figure translates into an LOE of
approximately 1,000 hours. Historically, baseline PRP searches with limited or no follow-
up research have required approximately 500 LOE hours to complete. For this reason,
RPMs are encouraged to make full use of this funding. RPMs should consult with
Regional management to determine resource commitment limitations.
A matrix of SCAP/SPMS measures relevant to PRP search activity is presented as
Exhibit IV-4.
In addition to SCAP/SPMS reporting requirements, RPMs are also responsible for
completing an accurate CERCLIS site information form (SIF) for all PRP search
activity. Exhibit IV-5 provides an example of a completed SIF for a NPL PRP search or
a non-NPL removal search. RPMs should complete the SIF using the example outline of
fields and possible values:
A. Activity Type/Code (NS = NPL RP search or RP = Non-NPL removal search)
B. Lead (FE = Federal Enforcement)
C. Plan start/completion dates (FYQ)
D. Actual start/completion dates (MM/DD/YY)
E SCAP Note (Indicate any comments concerning the search, e.g., outcome)
F. Enforcement Activity Outcome Code/Name
G. Number of PRPs discovered at the site
H. Financial Requirements:
1. Financial Type Code and Name (G = Planned Case Budget Obligation)
2. Financial Amount (Required to conduct the search)
3. Plan Date (FYQ, dates funds will be needed)
4. Contract Vehicle (TES)
5. Budget Source (E = Enforcement)
-24-
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Exhibit IV-4
SCAP/SPMS Measures Relevant to PRP Searches
ACTIVITY
NPL PRP Search Start
Non-NPL PRP Search Start
NPL Sites with Completed
PRP Searches
Non-NPL Sites with Completed
PRP Searches
104(e) Letters Issued
104(e) Referrals
SPMS
REPORTING
SCAP
PLAN/REPORT
X
X
X
X
X
X
QTRLY
X
X
X
X
X
X
ANNUAL
X
X I
1
x 1
X
X
X
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6. Case Budget Status (APR = Approved, ALT = Alternate; indicates
whether funds are approved in the case budget)
7. WANO (Work Assignment Number)
8. Financial Note (comments on finances)
If the NPL PRP search or the non-NPL removal search is being conducted by a
contractor, the start date is defined as the date the work assignment is procured. If the
search is conducted by EPA, the start date is defined as the date that EPA staff begin
the PRP search activities.
The PRP search is completed when: 1) the Region has gathered information required by
the program guidance, including information on generators and necessary information on
financial viability, and has sufficient information to mail general notice or special notice
letters (name and addresses of PRPs, volume and nature of substances contributed by
each PRP; volumetric ranking) and, at NPL sites, the classification of the sites has been
determined, or 2) if no PRPs are found, the date and the outcome of the search are
entered into CERCLIS.
The Regions should record pertinent information at the completion of search activities "F"
and "E."
-25-
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R Clarifying
Roles and
Responsibili-
ties
IV. POTENTIAL PROBLEMS/RESOLUTIONS
This section addresses several problems that RPMs may encounter when attempting to
identify and document the involvement of PRPs at a particular site.
A Timing A comprehensive PRP search and notification process should be initiated early in the
remedial process. Early searches facilitate PRP coalescence for settlement negotiations
and promote increased PRP participation in RI/FS and RD/RA activity. Conversely, the
failure to properly plan the search, oversee it, assure follow up and "complete" it may
unnecessarily delay the RD/RA negotiations, or stall cost recovery or CERCLA section
106 case development.
The RPM should ensure that all parties involved in the PRP search process clearly
understand their roles and responsibilities. This objective can be accomplished by:
Developing PRP search management plans
Tailoring contractor's work plan to site-specific requirements
Assigning responsibility for follow-up
• Conducting an "evidence" review.
In some Regions, the RPMs spend time in the field gathering initial data to determine the
appropriate scope for the search process. In other Regions, the RPM assigns initial data
gathering tasks to the contractor and then uses this data to define the scope of the
search process at the kick-off meeting.
RPMs may use meetings as a means of improving the cooperative efforts of the
contractor and State and local officials. For example, these meetings could be used to
provide the contractors with a list of State and local government contacts. Before
issuing such a list, the RPM should provide the contractor with a letter of introduction.
The purpose of the letter is to introduce the contractor to State and local government
officials and to inform these officials that the contractor is working for EPA on a
particular PRP search.
Resource The quality of a search is a function of planning, proper and focused utilization of
Commit- contractors, oversight, and follow up. Sufficient money must be budgeted in the
ments enforcement case budget. RPMs should consult with their management to determine the
Region's limitation on the initial commitment of resources for a PRP search. This figure
varies from Region to Region. The standard PRP search budget is $50,000. This figure
translates into approximately 1,000 hours of LOE, and should be sufficient for most sites.
The object of the search is to uncover all reasonably available evidence of the PRPs'
liability. The RPM should ensure that the investigative process is planned and conducted
properly the first time. If an RPM determines that the conditions at a particular site
C.
-26-
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D.
Examples of
Enforcing
Information
Requests
require supplemental work and funding, the RPM should ensure that these planned
expenses are reported on the SCAP.
When planning the search budget, RPMs should avoid under-committing resources to the
necessary search, and should be realistic in committing resources. Under-committing
resources is as inefficient as over-committing resources. When RPMs under-commit, they
limit the search activities. For instance, in a limited search, the contractor may only
perform a records search and conduct several interviews with government officials.
This limited search may not be adequate for a complex site. Poor-quality searches do
not produce the type of evidence needed to establish a person's liability under section 107
of CERCLA. Without sufficient information, a second and more complete search must be
conducted. Consequently, the Agency loses both time and money. Therefore, RPMs
should work closely with Regional management in determining how to effectively commit
resources for a particular site.
The Agency has statutory authority to enforce its requests for information. There are
two recent examples of the Agency's efforts to enforce its requests. Each case is
discussed below.
The Cannons Sites
The Agency sought to enforce its request for information about a PRPs' involvement at
the Cannons sites in Massachusetts and New Hampshire, Region I. On March 28,1986,
the Agency sent letters to over 500 PRPs. Crown Roll Leaf, Inc. ("Crown") was one of
the recipients. The return receipt card indicated that Crown received the letter on April
1,1986. A complete response was due within 30 days of receipt (i.e., May 1,1986).
Crown failed, without justification, to provide EPA with the requested information and
documents relating to the transportation of toxic waste. On August 18,1986, the
Agency sent Crown a reminder letter. Crown again failed to respond.
Section 3008(a) of RCRA was employed to enforce response to the notice letters (prior
to SARA, a number of notice letters were issued pursuant to RCRA section 3007). On
November 14,1986, the Agency sent Crown the following:
Administrative order compelling a response
Administrative complaint
Proposed consent agreement.
The administrative order demanded that Crown provide the requested information and
documents. The administrative complaint notified Crown that it could contest liability for
failure to respond to the information request. The proposed consent agreement required
Crown to submit responses to the information request and to pay a penalty in settlement
for EPA's claims for failure to respond.
-27-
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In December 1986, Crown's attorney telephoned a Regional attorney to discuss the
matter. After this conversation, Crown still failed to submit a written response to the
Agency's information requests. On'February 16,1988, the Agency initiated a judicial
action against Crown. The Federal district court ruled that since the EPA information
request form specifically requested a written request, Crown's phone conversation with
the Regional attorney did not constitute adequate compliance.
This case is important because it supports the Agency's right to demand a written
response to the information request letter.
Charles George Site
In this case, the Agency sought to impose civil penalties upon two PRPs who failed to
respond to information request letters. At the time, CERCLA did not contain the
provisions of section 104(e)(5)(B) for imposing per diem non-compliance penalties. Prior
to the enactment of SARA, only RCRA contained provisions for non-compliance
penalties. Therefore, the award of civil penalties in the Charles George case was
decided under the RCRA provisions.
On February 4, 1985, EPA sent a written request for information concerning the landfill
and its operation to Charles and Dorothy George (recipients). On March 6,1985, the
recipients requested an additional 60 days to respond; EPA denied the request and urged
the recipients to reply as promptly as possible to minimize noncompliance penalties.
The Agency took a firm stand on enforcing the requests for information. EPA allowed
only four months to elapse before filing suit in Federal district court. The suit petitioned
the court to:
• Issue an order compelling the recipients to promptly provide the requested
information
Impose per diem penalties authorized by RCRA [42 U.S.C. § 6928(g)] for
failure to respond within the specified time.
The district court determined that seven of the 26 questions were insufficiently relevant
to require a response; the recipients were ordered to answer the remaining questions and
each recipient was fined $20,000. The recipients appealed. The Federal appeals court
upheld the lower court's decision. Consequently, the recipients were compelled to answer
the remaining 19 questions and pay a total of $40,000 in civil fines.
This case is important because the court imposed a substantial civil fine on the
recipients. The case also demonstrates that the requests for information must be
reasonably related to the statutory authority. Therefore, RPMs should work closely
with the Regional attorneys to develop appropriate, and enforceable, requests for
information.
-28-
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V.
REFERENCES
Policy OSWER Directive 9835.0, "Interim CERCLA Settlement Policy" 50 FR 5034 (December
5,1984).
Guidance OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 1987).
OWPE, "PRP Search Supplemental Guidance for Sites in the Superfund Remedial
Program" (June 16,1989).
OSWER Directive 9834.1 OA, "Model Notice Letters" (February 7,1989).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing Lists" (February 6,
1989).
OSWER Directive 9834.4A, "Final Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas" (August 1988).
OSWER Directive 9835.1 A, "Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility Studies" (October 1988).
Memoranda OWPE, "Releasing Identities of Potentially Responsible Parties in Response to FOIA
Requests" (January 26,1984).
OECM, "Liability of Corporate Shareholders and Successor Corporations for Abandoned
Sites Under the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA)" (June 13, 1984).
OWPE, "Policy for Enforcement Actions Against Transporters Under CERCLA"
(December 23,1985).
Manuals OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1987).
Region I Training Manual, Enforcement and Remedial Activities Under SARA (May
1989).
Training OWPE, CERCLA Enforcement Division, Technical Support Branch conducts periodic
PRP Search Workshops and Cl Conferences. For additional information, contact FTS
382-5612.
Contacts PRP searches: The CERCLA Enforcement Division's Technical Support Branch: (FTS)
382-5612
-29-
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Information Requests: OECM Attorney Advisor at (FTS) 382-3066, or an attorney in
ORC.
Administrative Subpoenas: OECM Attorney Advisor at (FTS) 382-3077, or an attorney
in ORC.
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VI. ACTIVITIES CHECKLIST
This section discusses the RPM's management functions in overseeing the PRP search
process. The following checklist is not intended to present an exhaustive set of
procedures. RPMs should exercise their professional discretion when deciding what
procedures are appropriate for a particular site.
1) Conduct a preliminary PRP search.
2) Develop a PRP search plan and assemble the resources needed to
conduct the PRP search activities.
a) Ensure that contractor dollars are budgeted for
negotiations in the enforcement case budget.
b) Develop search plan/strategy
• Activities
• Roles and responsibilities
• Scheduling
• Information management
c) Develop a detailed scope of work for the contractor.
d) Develop a detailed resource plan for EPA staff.
3) Conduct baseline information and records collection, interviews with
government officials, title search.
a) Conduct initial baseline tasks.
b) If appropriate, conduct additional (i.e., specialized) tasks
concurrently with these baseline tasks.
4) Issue 104(e) letters to owners and/or operators.
a) Issue letters, even if there is only a single PRP or few
PRPs and there is information on them, verify it with a
§104(e) letter.
b) , Obtain copies of documents.
5) Compile, organize, and analyze responses from 104(e) letters.
-31-
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a) Track response to letters.
i) Establish the tracking system.
ii) Determine identies of non-responders and
incomplete responders.
b) Follow up on recipients who fail to fully comply with the
request for information.
i) Send warning letters to recipients who provided
incomplete or inadequate information.
ii) Determine whether an administrative order
assessing penalties should be issued if recipient fails
to respond to warning letter.
iii) Consider initiating a judicial action to enforce the
information request order (also consider seeking
additional penalties for violating the order) if
recipient fails to respond to warning letter.
6) Update PRP status.
a) Determine current name and address.
b) Resolve status of corporations that are defunct,
dissolved, bankrupt, merged, sold or had parent.
7) Analyze, follow up, and conduct additional research.
a) Resolve evidence evaluation sheets and financial
viability of owners/operators.
b) Develop site history.
c) Request supplemental information and interviews
regarding owner/operator liability.
d) List preliminary generators and transporters.
8) Draft the baseline report summarizing information obtained from the
baseline search. RPMs should ensure that the information needed to
document the PRPs' liability is sufficiently documented The cover of the
-32-
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report should clearly state that the document is "ENFORCEMENT
CONFIDENTIAL".
a) All information in the report should be attributed to
specific sources. Work done should be documented.
Information should be managed per plan.
9) Regional management reviews the baseline report and approves
revised search strategy.
a) Identify any data gaps and implement data
collection procedures.
b) Adapt search plan for interim final report. Decide
which of the 18 specialized tasks to perform.
10) Issue 104(e) letters to generators and transporters.
a) Link generators to the site.
b) Resolve that generators wastes are hazardous
substances under CERCLA.
c) Request information regarding the RCRA designation of
all waste sent to the facility/site.
d) Seek to resolve the issue of whether the substance was
a listed or characteristic hazardous waste as defined by
RCRA[see40C.F.R§261.30].
e) Track, follow up, and enforce.
11) Update PRP status for generators and transporters.
a) Determine current name and address.
b) Resolve status of coporations that are defunct,
dissolved, bankrupt, merged, sold, or had parent.
12) Conduct interviews as identified in plan and as necessitated by
review and responses to §104(e) letters.
13), Conduct other appropriate additional search tasks as identified in
strategy and as necessitated by review of responses to §104(3)
letters.
-33-
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a) Analyze information for completeness, ability to issue
special notice (name and address; volume and nature of
substances; volumetric ranking), evidentiary sufficiency
and ability to plan.
b) Follow up as necessary.
14) Prepare the interim-final report. Ensure that all information
obtained during the PRP search has been properly documented.
a) Review evidence evaluation sheets, assessing whether
there is sufficient information to establish a person's
liability under section 107 of CERCLA; review financial
viability.
b) Array information for special notice.
c) Identify follow up work needed.
d) Management review.
e) Document persons against whom there is not enough
information to be identified as PRPs.
15) Follow up report.
16) Determine when to issue GNLs.
a) Send a letter informing the individual (or
corporation) that the Agency considers it to be a
PRP. Send a copy to Headquarters for SETS.
b) Assemble back up documents.
c) Develop name and address list. Provide to
community relations coordinator, and
administrative record coordinator.
17) Initiate an information exchange with PRPs.
a) Meet with PRPs to provide them with information
about the site and to explain the negotiations
process.
-34-
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b) Ensure that the contractor adequately updates the
transactional database to reflect the information
provided by PRPs.
-35-
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Appendix
-------
PRP Search Plan
1. PRP Search Planning and Initial Strategy
a. Identify contractor and staff resource needs.
b Summarize team roles and responsibilities for managing and performing PRP search
tasks.
c. Discuss the schedule of the PRP search in relation to the overall site timeline.
2 Initial Assessment and PRP Search
a. Summarize information collected to date.
b. Develop strategy for collecting and using information.
Develop PRP correspondence tracking system and evidence files.
Follow up on recipients who fail to fully respond.
c. Conduct initial search, including title search and interviews with Federal, State and local
government officials. (The usual focus is first on owners and operators and then on
generators and transporters.)
3. Interim Assessment
a. Conduct analysis, identify issues, and project follow-up and additional PRP search needs,
including unique strategies.
b. Ensure information regarding PRP liability is well-documented.
c. Describe steps for PRP notification and information exchange.
d Develop a PRP list; including names and addresses.
4. Conclusion of PRP Search
a. Indicate actions to enhance inter-PRP and PRP-Government relations, such as:
encouraging PRPs to form a steering committee, providing information to PRPs and
encouraging PRPs to use a facilitator to resolve disagreements.
b. Assess ability to develop volumetric rankings and NBARs.
c. Complete information collection (including use of subpoenas), distribution of information
(to include Administrative Record coordinator and community relations coordinator),
documentation of evidence and notification (including special notice).
-------
RI/FS NEGOTIATIONS/SETTLEMENT
I. DESCRIPTION OF ACTIVITY .1
Introduction.... 1
Statutory Authority 1
Overview of the Negotiation Process 1
Roles and Responsibilities 2
RPM Responsibilities 2
ORC Responsibilities 2
OWPE Responsibilities. 2
OECM Responsibilities 3
DOJ Responsibilities 3
I! PROCEDURES AND INTERACTIONS 4
A. Decision to Start the RI/FS 4
B. Intergovernmental Review 5
C. Formation of the Case Team 5
D. Review PRP Search 6
E Issue General Notice 6
F. Steering Committees and Information Exchange 7
G. Follow up on PRP Search 8
H. Natural Resource Trustees 8
I Scoping the RI/FS 8
PRP Issues 9
J. RI/FS Statement of Work (SOW) 9
K. Draft Administrative Order 10
L. Issue Special Notice Letter 13
Timing of Special Notice 14
M. Good Faith Offer 14
Notify DOJ 15
N. Conditions for PRP Conduct of RI/FS 15
0. Negotiations Outcome - PRP-Lead RI/FS 16
P. Negotiations Outcome - Fund-Lead RI/FS 17
III. PLANNING AND REPORTING REQUIREMENTS 18
A. Planning Requirements 18
Contractor Support 18
B. Reporting Requirements 19
SCAP/SPMS 19
IV. POTENTIAL PROBLEMS/RESOLUTIONS 21
A. Stipulated Penalties 21
B. PastCosts 21
C. RI/FS Oversight Costs/Limits......... 21
-------
D. Removals Required During Rl/FS „ ....21
E Baseline Risk Assessment 21
F. Additional Work 22
V. REFERENCES....... ..........................23
Guidance...... 23
Manuals... ..23
Contacts .23
VI. ACTIVITIES CHECKLIST. ...................................24
APPENDIX
-------
RI/FS NEGOTIATIONS/SETTLEMENT
Introduction
Statutory
Authority
Overview of the
Negotiation
Process
I DESCRIPTION OF ACTIVITY
This chapter discusses the process of negotiating for PRP conduct of the RI/FS and
focuses on the RPM's role in the process. EPA policy is to encourage PRPs to perform
the RI/FS under EPA oversight, when EPA determines that the PRPs are qualified to do
the work and will carry out the activities in accordance with CERCLA requirements and
EPA guidance.
EPA prepares for RI/FS negotiations from the time the listing site inspection is
undertaken. EPA performs a PRP search, issues General Notice Letters (GNL), and
may meet with PRPs prior to beginning RI/FS negotiations. EPA also scopes the project
prior to initiating RI/FS settlement discussions. Formal negotiations begin when EPA
issues the Special Notice Letter (SNL), continue if there is a Good Faith Offer (GFO),
and conclude with the signing/issuance of an administrative order or consent decree, or
referral for litigation or the obligation of Fund monies.
While section 106 administrative orders may be issued, EPA usually relies on sections 104
and 122 of CERCLA to enter into agreements with PRPs to allow them to conduct all or
part of RI/FS activities. The settlement procedures in section 122 of CERCLA are
utilized when the Agency determines that the PRPs will conduct the RI/FS properly and
promptly.
Authority for RI/FS administrative settlements has been fully delegated to the Regions.
However, precedential issues or unique situations should be referred to the Settlement
Decision Committee (SDC) at Headquarters. The SDC is discussed in section IV,
Potential Problems/Resolutions, of this chapter.
The RI/FS negotiation process begins as soon as PRPs are given general notice. After
initial identification of PRPs, EPA issues a general notice letter to advise the PRPs of
their potential liability. The general notice letter is the mechanism by which parties are
identified as PRPs and notified about the possible use of the CERCLA section I22(e)
special notice procedures and the subsequent moratorium and "formal" negotiation period.
Following general notice, EPA continues to develop the PRP search. After EPA has
received responses to information requests and has assembled information regarding
waste types and volumes, EPA provides the information to PRPs and encourages them
to organize as a group and form a steering committee. The organization of PRPs is an
important element in achieving settlements. In addition, EPA, working with contractor
support, scopes the focus of the RI/FS. The RPM should coordinate with the State as
necessary on the scope of the RI/FS and any administrative order.
EPA may issue a special notice letter regarding the RI/FS. Issuance of the special notice
provides a period of negotiation in situations where EPA determines that such a period
would facilitate an agreement with PRPs and expedite response actions. The special
-1-
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Roles and
Responsibilities
RPM
Responsibilities
ORC
Responsibilities
OWPE
Responsibilities
notice letter is usually accompanied by a draft Administrative Order on Consent (AOC)
and RI/FS Statement of Work (SOW). RI/FS negotiations that result in settlement are
concluded with the signing of an administrative order on consent (or entry of a consent
decree, if the case has been filed in court) which incorporates a SOW.
Generally, settlement devices such as de minimis and mixed funding are not employed at
this stage. In unique circumstances, a de minimis settlement may be considered for very
low quantity generators early in the RI/FS process if enough information is available, or
the PRPs may request EPA to provide a Non-Binding Allocation of Responsibility
(NEAR) under section 122(e)(3) of CERCLA. The negotiation team should be prepared
to evaluate requests of this nature, but granting the request is discretionary for the
Agency.
The RI/FS negotiation process is summarized in Exhibit V-1.
This section describes the roles and responsibilities for the RPMs, assistant Regional
counsel, and representatives from OWPE, OECM, and DOJ. The primary activities
for each phase of the negotiation process are summarized below. The primary
responsibilities for RPMs and ORC are detailed in Exhibit V-2.
The RPM plays a central role throughout the RI/FS negotiation process and has primary
responsibility for technical aspects of the case.
The RPM's role is to educate the PRPs on EPA's negotiation position as well as to
provide pertinent PRP and site information. The RPM also may play a central role in
assisting the PRPs to organize into a steering committee, and should encourage the
formation of a PRP steering committee in nearly all cases. The RPM, in conjunction with
the assistant Regional counsel, should set up a correspondence file to track all
communication with PRPs. Some of this correspondence will subsequently be entered into
the Administrative Record for selection of response. The RPM's role in the timing of
special notice letters and the ensuing formal negotiation period is discussed in detail later
in this chapter. The RPM also participates in developing the case referral packages for
section 106 and section 107 litigation cases. The RPM works jointly with the attorney to
develop the technical information in support of a referral package for section 106 and
section 107 litigation cases. Similarly, the RPM and the attorney work jointly to develop
the Agency's negotiation strategy prior to negotiations with the PRPs and, as needed, to
coordinate the negotiation strategy document with the settlement decision committee.
ORC, in partnership with the RPM, also plays a central role in all phases of the RI/FS
negotiations. The assistant Regional counsel's primary role is to provide legal advice
during the negotiation process to ensure that the process complies with CERCLA.
OWPE is responsible for ensuring national consistency for negotiated settlements and
consistency with national policy. OWPE representatives usually are not involved in
RI/FS negotiations but may participate on any negotiations team where nationally
significant issues are anticipated. OWPE assures necessary coordination with OECM.
OWPE also assists the Regions in assembling cost documentation. The Director, OWPE
also chairs the settlement decision committee, which is discussed later in this chapter.
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Exhibit V-1
RI/FS Negotiation Process
Listing Site 1
Inspection 1
-*---
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Negotiation
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30-day
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OECM OECM is responsible for ensuring that negotiated settlements are consistent across the
Responsibilities Regions with national policy for legal matters. OECM attorneys have expertise in the
legal implications of RI/FS settlements. OECM attorneys usually are not involved in
RI/FS negotiations but may participate in negotiations where complex or nationally
significant issues are anticipated. OECM assists Regional counsel in prereferral matters,
reviews referrals sent to DOJ, and also reviews consent decrees resulting from
settlements. OECM is represented on the SDC.
DOJ DOJ's representative from the Land and Natural Resources Division's Environmental
Responsibilities Enforcement Section is EPA's attorney for litigation of Superfund cases. DOJ usually is
not involved in RI/FS negotiations because these are resolved by administrative orders
rather than consent decrees. DOJ is involved in cases involving a compromise of past
costs in a RI/FS order in accordance with section 122(h)(1) of CERCLA.
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I PROCEDURES AND INTERACTIONS
This section discusses the procedures for negotiating PRP involvement in the RI/FS, and
focuses on the RPM's role in the negotiation process. Certain elements of this process
are similar to elements of the RD/RA negotiation process, which is discussed in Chapter
VIII, RD/RA Negotiations/Settlement.
A. Decision to The decision to initiate RI/FS activities is made in the course of preparing the annual
Start the SCAP. The SCAP process is discussed in Chapter XVII, SCAP/SPMS Cycle. The
RI/FS RI/FS start, as planned in the SCAP, affects the schedule for negotiations with the
PRPs.
A PRP search generally should commence at least one to two years before negotiations
are scheduled to begin except at sites without generators, where less time is necessary.
Negotiation planning usually is initiated six to nine months prior to the planned RI/FS
start date in SCAP. When planning an RI/FS start, RPMs should keep in mind that, in
cases where the special notice letter procedure is implemented and a good faith offer is
received by EPA within 60 days, RI/FS activity is unlikely to begin for at least 90 days
after special notice issuance. When negotiating SCAP/SPMS targets, the RPM,
Information Management Coordinator (IMC), and other Regional personnel involved in
SCAP negotiations should consider the following factors in proposing an RI/FS start at a
site:
Budget: Will funds be available to initiate activity at the site on the planned
date?
Site classification: Is the site targeted as PRP-lead or Fund-lead?
Length of time on SCAP: How long has the site been identified on the SCAP as
an NPL site?
Environmental significance of the site: How great is the threat to human health
and the environment posed by the site?
Status of the PRP search: Is the PRP search near completion? How great is
the possibility of identifying viable PRPs?
PRP capabilities: Are PRPs qualified?
Willingness of the PRPs to cooperate: What is the likelihood of settlement?
The decision to start an RI/FS involves the SCAP coordinator (or IMC), section chiefs,
and branch chiefs. The division director grants final approval on RI/FS start decisions.
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a Intergovem- RPMs should initiate the intergovernmental review process during settlement
mental negotiations, so that the review process is underway in the event Fund monies are used
Review for site response activity. 40 CFR Part 29, "Intergovernmental Review of the
Environmental Protection Agency Programs and Activities," addresses
intergovernmental review of Federal financial assistance programs and directs Federal
development activities as it relates to the Superfund program. This regulation applies to
all remedial projects, including EPA-lead RI/FS projects, initiated under the authority of
CERCLA for which EPA or the State designated agency is taking the lead. Responsible
parties, however, are not subject to the regulation and their activities accordingly are not
subject to the notification procedures outlined in the regulation.
Reference
OSWER Directive 9375.1-4-d, "State Participation in the Superfund Program," Appendix
D, "Procedures for Implementing Intergovernmental Review for the Superfund Program"
(June 2,1988).
C. Formation of Primary responsibility for developing settlements rests with the case team, or
the Case negotiation team. The negotiation team usually consists of the RPM and the
Team assistant Regional counsel. Additionally, the civil investigator works closely with the
case team, and manages or supports the PRP search. The primary responsibilities
of the case team follow.
PRP Search
Ensure that the PRP search is complete, including adequate information for
special notice and evidence on PRPs
Oversee continued investigations as necessary to gather further information on
PRPs
General Notice and Information Exchange
Ensure that PRPs are given general notice
Ensure early information exchange with PRPs
Special Notice and Negotiation
Develop and transmit draft settlement documents to PRPs, including technical
scopes of work, administrative orders or consent decrees, in advance of
negotiations
Conduct negotiations and maintain deadlines
The case team also assumes a general coordinating role in facilitating a site's progress
through the enforcement process.
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As part of their general coordinating role in negotiations, the case team should develop a
negotiation plan. The negotiation plan documents EPA's approach to productive
negotiations with PRPs, functions as a checklist of steps to be taken, guides EPA's
negotiation preparation process, resolves anticipated issues, and sets the bottom line for
the negotiations. Negotiations where EPA is fully prepared and sets schedules and
deadlines are much more likely to result in a signed administrative order on consent. The
RI/FS negotiation plan is also discussed in Chapter III, Comprehensive Site Planning, and
is included as an appendix to this chapter.
0. Review PRP When planning for negotiations, the case team should review thoroughly the PRP search
Search report to ensure that the universe of PRPs has been identified, and that PRP waste-in
and liability information is complete enough to support the issuance of special notice
letters. The information in the PRP search report also should be sufficient to support the
preparation of volumetric rankings included in the special notice. Necessary follow-up
work should be identified.
Information requests should be issued as early in the PRP search/negotiation process as
practicable. Information requests may be issued as a separate letter during the PRP
search process or as part of the general notice letter. Whenever possible, information
request letters should be issued independently and well in advance of the general notice
letter. Issuance of the information request letter prior to the general notice letter is
especially encouraged in situations where information from PRPs is necessary to
determine whether the issuance of a general notice letter is appropriate. Issuance of the
GNL marks the point at which EPA determines that a party is a PRP.
Information request letters are discussed at length in Chapter IV, PRP Search,
Notification, and Information Exchange.
E fesue The general notice letter informs PRPs of their potential liability, may begin or continue
General the process of information exchange, and initiates the process of "informal" negotiations.
Notice "Informal negotiations" refer to any discussions that are not conducted as part of the
negotiation moratorium triggered by issuance of special notice under section 122 (e) of
CERCLA.
General notice letters should be issued at all sites that are proposed for or listed on the
NPL. However, it may not be appropriate to issue the general notice at sites where a
notice pursuant to previous guidance was issued before the reauthorization of CERCLA
or where the Region is ready to issue special notice at the site. These exceptions are
important for minimizing any possible disruption to ongoing activities.
The general notice letter identifies a party as a PRP and informs the recipient of its
potential liability for all response activities and costs incurred by the government.
General notice letters should be sent to all parties for whom there is sufficient evidence
to make a preliminary determination of potential liability under section 107 of CERCLA.
The RPM, in consultation with ORC, should issue the general notice to PRPs as soon as
possible. OWPE has developed a model general notice letter. The procedure for issuing
general notice letters and the contents of the letter are discussed in detail in Chapter IV,
PRP Search, Notification and Information Exchange.
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References
OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA" Appendix A, "PRP Participation" (October 1988).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations and
Information Exchange" (October 19,1987).
OSWER Directive 9834.10A, "Model Notice Letters" (February 1989).
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1987).
Steering The case team should encourage PRPs to form a steering committee early in the
Committees negotiation process. This encouragement, however, should not suggest that EPA will
and negotiate only with one steering committee. Steering committees greatly facilitate
Information negotiations in multi-party cases since the Government may negotiate with one
Exchange committee that represents the PRPs, and PRPs may resolve differences among
themselves through the committee. The case team should encourage PRPs to form a
steering committee at the time of the general notice letter or at the first meeting
between the Government and PRPs. If necessary, the case team should educate the
steering committee in the Superfund enforcement process, including providing the
committee with pertinent information such as PRP identification, waste-in lists, relevant
policies, and technical data. As new PRPs are identified, the case team should refer
them to the steering committee.
Establishment of PRP steering committees provides several logistical and tactical
advantages to the negotiation process, including:
Providing the circumstances for experienced PRPs to educate less-experienced
PRPs
Providing the Government with a central point for dissemination of information
and government decisions
Providing a single point of issuance of PRP proposals and decisions
Providing a forum in which PRPs may negotiate among themselves to determine
allocations among their own members.
While steering committees may be advantageous to reaching settlement, the case team
should be aware of possible disadvantages of dealing with steering committees. Some
PRPs may not trust the recommendations of the committee if they do not believe it
fairly represents their concerns, and these PRPs may elect not to settle. If the
committee leadership is unfamiliar with CERCLA, or is internally fractious, the entire
settlement can be jeopardized. The case team needs to be sensitive to these concerns in
determining how it will relate to a particular steering committee.
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H Natural
Resource
Trustees
G. Followupon Before initiating formal negotiations with PRPs, the case team should review the PRP
PRP Search search report and correspondence from the PRP steering committee for any information
that may lead to the identification of additional PRPs. Any such leads should be pursued
and in the event additional PRPs are identified, the new PRPs should be issued a general
notice, advised of the status of informal negotiations, and informed of the existence of a
PRP steering committee, if appropriate.
Section 122 (j) (1) of CERCLA requires EPA to notify appropriate Federal trustees and
provide an opportunity for the trustee to participate in the negotiations if a release or
threat of a release at a site may have resulted in damages to natural resources.
Delegation R-14-25 delegates responsibility for notifying trustees to OWPE/OERR.
RPMs generally do not assume responsibility for notifying trustees. Headquarters
intends to provide a list of projects in the SCAP to the trustees as notice to participate
in the negotiations.
Section 104 (b) (2) of CERCLA also requires EPA to notify the appropriate Federal and
State trustees of potential damages. The Federal trustees are notified on a regular
basis once a site is listed through the National Response Team/Regional Response
Team. However, State trustees must be notified by the RPM. This notification should
take place at the time of site listing and during the Rl, especially if potential damages are
found. Federal and State trustees also are provided the opportunity to comment on the
RI/FS work plan.
RPMs must coordinate notification efforts with the Department of the Interior and the
Bureau of Natural Resources. Notification of trustees at this stage of the negotiation
process may identify issues to be considered in scoping the RI/FS.
I Scoping the Scoping is the initial planning phase of site remediation, and should be initiated by the
RI/FS RPM with contractor support at least several months prior to the beginning of
negotiations. By conducting preliminary scoping activities before negotiations with PRPs
begin, EPA enters negotiations with a better idea of the nature and extent of the
technical work that needs to be done at the site. When EPA has scoped the technical
work and site management requirements at a site, negotiations with PRPs are more
focused and the PRP-conducted work is likely to be of higher quality than when adequate
scoping activity has not occurred.
The ability to develop a comprehensive site management strategy and site objectives is
closely tied to the amount and quality of information available at the time. It should be
recognized that the objectives and strategy may not be fully developed at this stage. As
new information is acquired or new decisions are made, data requirements are
reevaluated and, if appropriate, the site management strategy or objectives are
modified.
The site objectives should specify the purpose of any activities to be conducted at the
site including any interim actions that may be necessary, as well as the preliminary
objectives of possible remedial actions (e.g., the cleanup goals). These objectives should
specify the contaminants and media of concern, the exposure pathways and receptors,
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PRP Issues
d RI/FS
Statement
of Work
(SOW)
and an acceptable contaminant level or range of levels for each exposure route. The site
objectives are developed and based on existing site information, contaminant-specific
ARARs, when available, and risk-related factors.
The site management strategy is developed once the objectives have been established
and identifies the study boundary areas and the optimal sequence of site activities,
including whether the site may best be remedied as separate operable units. The general
management approach should include: actual and potential site problems, any interim
actions that are necessary to mitigate potential threats or prevent further
environmental degradation, and the optimal sequence of activities to be conducted at the
site. Also included in the site management strategy should be the decision as to whether
the Rl will serve as a continuation of the PRP search. This would be appropriate at sites
where all of the sources of contamination are not yet well defined.
Determination of site boundaries may be a particularly significant issue for PRPs. The
case team must carefully evaluate preliminary site information to determine if Rl
activities should occur in a more extended or restricted geographic area. This decision
may be particularly difficult in situations that involve area-wide ground-water
contamination or commingled ground-water contamination plumes, where contamination
sources are identified off-site and indicate that additional PRPs may be identifiable.
Scoping activities may thus uncover information that is valuable to following up PRP
search efforts, or identifying additional PRPs.
Site access also may be an issue significant to PRPs in negotiations. The case team
should be aware of any potential site access issues when preparing for negotiations.
Reference
OSWER Dir. 9355.3-01, "Guidance for Conducting Remedial Investigations and Feasibility
Studies under CERCLA" (October 1988).
The RI/FS SOW describes, in a comprehensive manner, the RI/FS activities to be
performed as anticipated prior to the onset of the project. The SOW establishes the
broad objectives, general activities to be undertaken, and deliverables to be submitted by
PRPs in the RI/FS. The SOW should be prepared before issuance of special notice, and
included in the notice letter when issued to the PRPs. OSWER has prepared a model
SOW for PRP-lead RI/FS activities (June 2, 1989). The major components of a SOW, as
identified in the model, are set forth in Exhibit V-3. The model SOW is consistent with
the revised RI/FS guidance (October 1988) and proposed NCP.
The draft site-specific SOW may be prepared by the RPM and other Regional personnel,
with contractor help on scoping. Some circumstances may warrant EPA preparation of
a work plan before or during negotiations. For a particular site, the RPM should add
scoping information to the model SOW and should tailor the model, as necessary, to the
site and PRPs. In limited circumstances, the PRP or EPA may prepare the SOW after
the order is signed, but this approach may lead to major implementation problems and is
not preferred.
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The Work Plan describes the methodology for accomplishing the objectives set forth in
the SOW. Work Plans usually are prepared by the PRPs as the first deliverable specified
under the terms of the RI/FS settlement.
References
OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA," Appendix A, "PRP Participation" (October 1988).
OSWER Directive 9835.8, "Model Statement of Work for PRP-Conducted Remedial
Investigations and Feasibility Studies" (June 2,1989).
K. Draft The terms and conditions governing the RI/FS activities of PRPs should be specified in
Administra- an Administrative Order on Consent (AOC), which is also known as a consent order.
live Order AOCs are the preferred settlement document for RI/FS activities because concurrence
on AOCs takes place quickly. CERCLA authorizes the use of AOCs for RI/FS
settlements under sections 104 and 122, and does not contain the requirement in section
106 of CERCLA that EPA must make a finding of imminent and substantial
endangerment.
The case team should prepare a draft administrative order before special notice is sent.
EPA has prepared a model section 106 administrative order, contained in "Guidance
Memorandum on Use of Issuance of Administrative Orders Under Section 106(a) of
CERCLA," Lee Thomas and Courtney Price, September, 1985. This guidance currently
is being revised. A draft model section 104 administrative order on consent is currently
being prepared by OWPE, CERCLA Enforcement Division, Guidance and Oversight
Branch.
In addition to settlement terms, the AOC must incorporate, by reference, the SOW. The
AOC also should contain language that requires PRP conducted RI/FS activities to meet
appropriate quality standards. The draft AOC thus provides a starting point for
negotiations and should be prepared in time to include it in the special notice to the PRPs.
In addition to the SOW, which outlines the activities to be performed, the AOC also
generally contains schedules, EPA or State oversight roles and responsibilities, and
enforcement options that may be exercised in the event of noncompliance, such as
stipulated penalties. The AOC also typically includes the following elements as agreed
upon by EPA and the PRPs:
Introduction: describes parties involved, response action covered, and identifies
the site.
Jurisdiction: describes EPA's authority to enter into the Order.
Parties bound: describes to whom the agreement applies and who it binds.
Statement of Purpose: describes the purpose of the Order in terms of mutual
objectives in preparing an RI/FS.
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Exhibit V-3
Major Components of the SOW
TASK1: SCOPING
ACTIVITIES:
• Collect and Analyze Existing Site Data
• Document Need for Additional Data
• Project Planning, Including Refinement of Remedial
Action Objectives, Documentation of Need for
Treatability Studies and Preliminary Identification
of Potential ARARs
DELIVERABLES:
• RI/FS Work Plan
• Sampling and Analysis Plan (SAP)
• Site Health and Safety Plan
TASK 2: COMMUNITY RELATIONS
TASK 3: SITE CHARACTERIZATION
ACTIVITIES:
• Field Investigation, Including implementing Field
Support Activities, Defining Site Physical
Characteristics, Sources of Contamination and
Nature And Extent of Contamination
• Data Analyses
• Data Management Procedures
DELIVERABLES:
• Technical Memorandum on Modeling of Site
Characteristics (where appropriate)
• Preliminary Site Characterization Summary
Draft Remedial Investigation (Rl) Report
TASK 4: BASELINE RISK ASSESSMENT
ACTIVITIES:
Contaminant Identification and Documentation
Exposure Assessment and Documentation
Toxicity Assessment and Documentation
Risk Characterization
Environmental Evaluation
DELIVERABLES:
Technical Memorandum Listing Indicator Chemicals and Hazardous Substances
Technical Memorandum Describing Exposure Scenarios and Fate and Transport
Models
Technical Memorandum Listing Toxicological and Epidemiological Studies
Plan for Evaluating Environmental Risk
Environmental Evaluation Report
Baseline Risk Assessment Chapter of the Rl Report
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Exhibit V-3(2)
Major Components of the SOW
TASK 5: TREATABILITY STUDIES
ACTIVITIES:
• Determine Candidate Technologies and the Need for Testing
• Conduct Treatability Testing
DELIVERABLES:
Technical Memorandum Identifying Candidate Technologies
Treatability Testing Statement of Work
Treatability Testing Work Plan (or Amendment to Original)
Treatability Study SAP (or Amendment to Original)
Treatability Study Site Health and Safety Plan (or Amendment
to Original
Treatability Study Evaluation Report
TASK 6: DEVELOPMENT AND SCREENING OF ALTERNATIVES
ACTIVITIES:
Refine and Document Remedial Action Objectives
Develop General Response Actions
Identify Volumes or Areas of Media
Identify, Screen and Document Remedial Technologies
Assemble and Document Alternatives
Refine Alternatives
Conduct and Document Screening Evaluation of Each Alternative
DELIVERABLES:
Technical Memorandum Documenting Revised Remedial Action Objectives
Technical Memorandum on Remedial Technologies, Alternatives and Screening
TASK 7: DETAILED ANALYSIS OF ALTERNATIVES
ACTIVITIES:
• Apply Nine Criteria and Document Analysis
• Compare Alternatives Against Each Other and Document
Comparison of Alternatives
DELIVERABLES:
• Draft Feasibility Study (FS) Report
TASK 8: OVERSIGHT ACTIVITIES
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Findings of fact: provides an outline of facts upon which the agreement is based.
Conclusions of Law and Determinations: specifies that the site is a "facility";
wastes are a "hazardous substance"; and their presence constitutes a release.
Notice: verifies that the State has been notified of pending site activities.
Work to be Performed: describes, generally by reference to the attached SOW,
the activities to be conducted pursuant to the AOC and provides a schedule for
completion of activities and a schedule of deliverables.
Modification of the Work Plan: specifies that the PRPs are committed to
perform any additional work or subsequent modifications which are not explicitly
stated in the work plan, if EPA determines that such work is necessary for a
complete RI/FS.
Quality Assurance: specifies that technical work at a site must comply with the
requirements of CERCLA, the NCP, Agency guidance, and QA procedures.
Final RI/FS, Proposed Plan, ROD, Public Comment and Administrative Record
Requirements: provides that EPA releases the RI/FS, prepares the ROD, and
that all information upon which the selection of remedy may be based be
submitted to EPA for public comment in fulfillment of the Administrative Record
requirements of section 113 of CERCLA.
Progress Reports and Meetings: specifies the type and frequency of reporting
that PRPs must provide to EPA.
Sampling, Access and Data Availability/Admissibility: stipulates that PRPs
shall allow access to the site by EPA, authorized personnel, the State, and third
party oversight officials. The clause in the settlement also should state what
constitutes the PRPs' best efforts to gain access to the site or necessary off-
site locations when the property is not owned by the PRPs. This claim should
also provide for access to the site by EPA contractors and specify actions EPA
may take to gain access. In developing this clause in the settlement, the case
team should consider access needs and the cooperativeness of the parties
owning property to which access may be required. This section also stipulates
that the PRP shall submit to EPA in the subsequent monthly progress report all
results of sampling, modeling, tests, or other data. EPA may take split or
duplicative samples as necessary.
Designated Project Coordinators: specifies that EPA, the State, and PRPs shall
each designate a project coordinator. The EPA coordinator may be the RPM.
Other Applicable Laws: states that PRPs shall comply with all laws that are
applicable when performing the RI/FS.
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Record Preservation: specifies that all records must be maintained by both
parties for a minimum of ten years after commencement of the remedial action,
if any, followed by a provision requiring PRPs to offer the site records to EPA
before disposal.
Dispute Resolution: specifies steps to be taken to resolve disagreements
between the parties regarding the work to be performed.
Delay in Performance/Stipulated Penalties: provides for stipulated penalties for
noncompliance with the terms of the order, and sets forth penalty amounts. This
clause in the settlement may also address the applicability of statutory
penalties.
Force Majeure: stipulates that the PRPs shall notify EPA of any event that
occurs that may delay or prevent work and that is due to force majeure.
Reimbursement of Past Costs: provides for reimbursement for past response
costs incurred by the Government.
Reimbursement of Response and Oversight Costs: provides for reimbursement
of costs of the Government in connection with the RI/FS, including review and
oversight.
Reservations of Rights and Reimbursement of other Costs: provides EPA with
the right to enforce past costs and cost reimbursement requirements.
Disclaimer: states that the PRPs' signature on the consent order is not
considered an admission of liability.
Other Claims: states that any release from liability applies only to matters
covered in the AOC and to no other claim or liability, except as provided in the
reservation of rights section.
Financial Assurance, Insurance and Indemnification: specifies that PRPs should
have adequate financial resources/insurance coverage to cover liabilities
resulting from their RI/FS activities.
Effective Date and Subsequent Modification: stipulates that the consent order is
effective on the date it is signed by EPA and that it may be amended by mutual
agreement of EPA and the PRPs.
Termination and Satisfaction: states that the consent order shall terminate
when the PRP demonstrates in writing that all work has been performed and
EPA approves.
RPMs must coordinate closely with ORC in preparing the draft AOC. Region I has
developed a step-by-step approach to developing administrative orders, the major points
of which are summarized in Exhibit V-4. RPMs should note that the procedures in Exhibit
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Exhibit V-4
Region I Procedures for AO Development
1.
RPM and Case Attorney meet to confirm general strategy for issuing the Order and prepare a strategy memorandum for distribution to branch
and section chiefs and AO specialists in the program office and ORC.
2.
RPM and Case Attorney collect input on guidance and model orders that may be useful and identify sections from other orders which may be
applicable to the objectives of the order under development. A team meeting with all commentors is recommended.
3.
RPM and Case Attorney decide who will be responsible for which parts of the Order, schedule due dates for themselves and assemble, review, and
modify the model orders and guidance as appropriate to assure relevance to the site objectives. The Case Attorney submits his or her parts of the
Order to the RPM for inclusion in the first draft.
4.
RPM assembles the first draft and circulates the draft to the section chief and other appropriate personnel in the Waste Management Division and
ORC. The Order is then redrafted as appropriate for the comments received.
5.
The revised draft, with all attachments, is then circulated to the AO specialists in ORC and the Waste Management Division.
6.
Once comments on the revised draft are incorporated into the AO, the Case Attorney sends a final draft to the potential respondents for
negotiation purposes.
7.
The RPM assembles the cover letter, executive summary, press release, final draft Order and all attachments for routing.
8.
The package is routed for signature and concurrence to
the RPM
Case Attorney
ORC quality control specialist
Section Chief
Branch Chief
Division Director
Deputy Regional Administrator
Regional Administrator.
9.
The State is advised that the Order will be/was issued.
10.
The Order and other related documents are issued and distributed as follows by the RPM:
Issue original Order to PRPs
Issue press release
Issue public comment notice (where applicable)
Send copies of the Order to the State, EPA Headquarters, OWPE, the Regional Office of
Congressional Affairs
Distribute file copies of the Order to the appropriate Regional personnel.
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V-4 are specific to Region I. However, they are included in this handbook as a guide for
Regions without an established AO development process and as a source of comparison
for Regions with different procedures.
References
OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations and
Feasibility Studies under CERCLA," Appendix A, "PRP Participation" (October 1988).
L fesueS£ec/a/ The Special Notice Letter (SNL) procedure authorized by section 122(e) of CERCLA
Notice Letter initiates the formal settlement process between EPA and the PRPs. The special notice
procedure triggers a moratorium on EPA's conduct of the RI/FS and remedial action.
However, certain investigatory and planning activities may occur during the negotiation
moratorium, including any "additional studies" as set forth in section 104(b) of CERCLA.
The purpose of the moratorium is to provide for a formal period of negotiation between
EPA and PRPs where the PRPs will be encouraged to conduct response activities. The
special notice procedure should be utilized whenever it would facilitate agreement. If EPA
does not issue a special notice, the Region must provide PRPs with an explanation.
The RI/FS negotiation moratorium may last 90 days if EPA receives a Good Faith Offer
(GFO) for conducting the work from PRPs within the first 60 days of the moratorium.
The negotiation moratorium concludes after 60 days if the PRPs do not provide EPA
with a GFO.
The special notice letter should specify the calendar date through which the moratorium
runs. In instances where there is more than one PRP and PRPs are likely to receive the
special notice on different days, the date the moratorium begins should be approximately
seven days from the date the letters are mailed to the PRPs. In either case, the special
notice must make clear when the negotiation moratorium ends.
In cases where EPA decides it is inappropriate to issue the special notice, the Region
must notify PRPs in writing of the decision. Section 122(a) of CERCLA requires that
the notice indicate the reasons why the Region determined that issuing the special notice
and entering into formal negotiations was not appropriate. OWPE has prepared a model
notice of decision not to use special notice procedures. This model should be used by the
Regions when notifying PRPs that the special notice procedure will not be used. The
notice, or justification for not issuing the special notice, should be provided to all PRPs
that have been identified to date as well as to the Regional Administrative Record
coordinator for placement in'the Administrative Record. In any event, a list of PRPs
should be provided to the community relations coordinator for inclusion on the mailing list.
In general, EPA policy is to issue special notice letters for RI/FS whenever possible.
There are several circumstances where EPA generally would not use the special notice
procedure:
Past dealings with the PRPs strongly indicate they are unlikely to negotiate
a settlement
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EPA believes the PRPs have not been negotiating in good faith
No PRPs have been identified at the conclusion of the PRP search
PRPs lack the resources to conduct response activities
Notice letters were issued prior to reauthorization of CERCLA and ongoing
negotiations would not benefit by issuance of a special notice.
The RPM also must notify the State of the negotiations and provide the State with the
opportunity to participate.
Timing of The special notice should be sent sufficiently in advance of obligations for the RI/FS so
Special that negotiations do not delay the initiation of the RI/FS by the Fund in the event the
Notice negotiations do not result in PRP conduct of the RI/FS. At the latest, PRPs should
receive special notice 90 days prior to the scheduled date for initiating the RI/FS. The
scheduled date for initiating the RI/FS refers to the date the AOC will be signed or the
date funds will be obligated to commence response activities. The 90-day period allows
an opportunity for the PRPs to undertake the RI/FS while also providing a timeline for
initiating Fund-financed RI/FS activity if negotiations do not result in settlement.
M Good Faith The initial 60-day moratorium may be extended to 90 days if the PRPs submit a GFO
Offer for conducting RI/FS activity. The special notice should identify a GFO as a written
proposal that demonstrates the PRP's qualifications and willingness to undertake the
RI/FS. A GFO for the RI/FS should contain the following elements:
A statement of the PRP's willingness to conduct the RI/FS that is consistent
with EPA's SOW or work plan and draft AOC and provides a sufficient
basis for further negotiations
A paragraph-by-paragraph response to EPA's SOW or work plan and draft
AOC, including a response to any other attached documents
A demonstration of the PRP's technical capability to undertake the RI/FS,
including identification of the firm(s) that may actually conduct the work or a
description of the process they will use to select the firm(s)
A demonstration of the PRP's capability to finance the RI/FS
A statement of willingness by the PRPs to reimburse EPA for costs incurred
in relationship to the PRP's conduct of the RI/FS, including oversight
The name, address, and phone number of the party or steering committee
who will represent the PRPs in negotiations.
If the GFO contains the above elements, and EPA determines that continuing
negotiations will be beneficial, the Region may approve a 30-day extension to the
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negotiation period. Generally, the 30-day extension is utilized only when settlement is
likely.
In some cases, it may be beneficial to extend negotiations beyond the 90-day moratorium
period. In exceptional circumstances, the Regional Administrator may approve an
additional extension of no more than 30 days to the 90-day moratorium. Extensions are
granted only in very rare circumstances and for short duration where final agreement is
imminent. Requests for extensions to the formal negotiation period should be made in
writing by the case team to the Regional Administrator. This request may be prepared
initially by the RPM and should specify:
The length of extension requested
Status of negotiations (issues resolved and those unresolved)
Justification for the extension
Actions to be taken in the event negotiations are unsuccessful.
The Regional Administrator will approve or deny the extension to the negotiation period
based on the information presented in the request. If approved, the request then should
be forwarded to the Director, OWPE.
Notify DOJ Under section 122(h)(1) of CERCLA, the Agency may compromise and settle a claim
under section 107 of CERCLA for past and future response costs if the case has not
been referred to DOJ for further action. In cases where total response costs exceed
$500,000 (excluding interest), claims may be compromised (i.e. settled for less than 100
percent) only after approval by DOJ. EPA seldom settles future claims under section
107 of CERCLA because future costs are often unknown and total costs often exceed
$500,000. DOJ may review the compromise of a claim pursuant to section 122(h)(1) of
CERCLA, where total response costs exceed $500,000 at the facility. DOJ is not
required to review an administrative order for PRP conduct of an RI/FS.
N.
Conditions
lor PRP
Conductof
RI/FS
EPA must evaluate PRP offers against certain criteria to determine whether the PRPs
possess the capabilities to perform the RI/FS properly and promptly. RPMs should
consider whether the following conditions for PRP conduct of the RI/FS are met:
Scope of Activities
PRPs must agree to follow the site-specific SOW, including reasonable modifications
acceptable to EPA, as the basis for conducting the RI/FS. EPA will reject any request
for modifications to the SOW that are not consistent with CERCLA, the NCP, and
requirements set forth in Agency guidance.
Demonstrated Capabilities
PRPs must demonstrate to EPA that they possess, or are able to obtain, the technical
expertise necessary to perform all relevant activities identified in the SOW. PRPs also
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must demonstrate that they possess the managerial expertise and have developed a
management plan sufficient to ensure that the proposed activities will be properly
controlled and efficiently implemented. Additionally, PRPs must demonstrate that they
possess the financial capability to conduct and complete the RI/FS in a timely and
effective manner. While always considered in negotiations, the PRP's demonstration of
their technical, managerial, and financial capabilities may be the first deliverable under
the settlement.
In addition to the PRP's technical and managerial capabilities, the Agency will have
considered the PRP's ability to objectively address certain issues in drafting the order.
Tasks which the Agency should pay special attention to and consider reserving for
themselves include: risk assessments, determination of applicable or relevant and
appropriate requirements, and the effectiveness of institutional controls. In past
circumstances, some PRPs have found it to be untenable to acknowledge human health
risks.
Assistance for PRP Activities
If PRPs propose to use consultants for conducting or assisting in the RI/FS, the PRPs
should specify the tasks to be conducted by the consultants and submit personnel and
corporate qualifications of the proposed firms to EPA for review. EPA must verify that
the PRPs' consultants have no conflict of interest with respect to the project.
Negotiations Negotiations that result in settlement are concluded by signature of an AOC or entry of
Outcome • a Consent Decree (CD) committing the PRPs to conduct of the work and reimburse the
PRP-Lead Government's costs.
RI/FS
In cases where settlement issues require clarification, the Regional Administrator acts as
the primary decision-maker on CERCLA settlement issues. This responsibility is often
delegated to the Division Director. The case team should provide a written summary of
any settlement issues requiring a decision by the Regional Administrator. The Regional
Administrator holds full responsibility for resolving issues related to administrative
settlements for the RI/FS.
Once PRPs have signed the settlement document, the agreement must go through the
Regional concurrence chain, and ultimately be signed by the Regional Administrator,
unless its authority has been redelegated. If the settlement document is a consent
decree, the case team also must coordinate with the Environmental Enforcement Section
in DOJ, to finalize the settlement. In cases where a GFO is rejected based on the criteria
outlined in OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations
and Feasibility Studies under CERCLA," Appendix A, "PRP Participation" (October
1988), the case team must determine whether the PRPs are indeed negotiating in good
faith, and then determine whether to continue negotiation efforts.
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P. Negotiations If negotiations do not lead to a signed AOC at the end of the formal negotiation period,
Outcome- EPA may initiate Fund-lead RI/FS activities. However, initiation of Fund-financed
Fund-Lead activity only is possible if the activity is planned for in the SCAP. A planned date for
RI/FS the initiation of Fund-lead activity may be viewed as a drop-dead settlement date for
PRPs, thus providing an incentive for settlement.
While it is preferable not to have uncooperative PRPs conducting the investigatory work
of the RI/FS, in limited circumstances section 106 Unilateral Administrative Orders
(AOUs) may be issued to achieve PRP conduct of RI/FS activities.
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IL PLANNING AND REPORTING REQUIREMENTS
This section discusses the planning and reporting requirements associated with the RI/FS
negotiation process.
A. Planning Funds for RI/FS negotiations are made available to the Regions through the Case
Requirements Budget. The Case Budget process is discussed in greater detail in Chapter XVI, Case
Budget/Contracts, and Chapter XVII, SCAP/SPMS Cycle. Funds allocated to RI/FS
negotiations are set forth in the current fiscal year SCAP manual.
The funds available for RI/FS negotiations cover the following activities:
Scoping the RI/FS
Development of the SOW
Forward planning/records compilation
Issuance of Special Notice
Support for negotiations meetings
Development and issuance of AOs.
This $50k allocation is not designed to support entire scoping activities and work plan
development of a Fund-financed RI/FS.
When planning in the SCAP for RI/FS activities, RPMs should consider the advantages
and disadvantages of targeting RI/FS activities as Fund or PRP-lead. If a Fund-lead
RI/FS is targeted at a site, OERR sets aside extramural dollars to perform the work. In
situations where money has already been appropriated for RI/FS activity at a site, EPA
may be able to negotiate more effectively with the PRPs, since the possibility exists
that EPA may choose to conduct the work immediately and sue for cost recovery later.
PRPs generally prefer settling before RI/FS work is completed to avoid being sued for
cost recovery at a later time. However, proper planning entails achieving a balance
between Fund and RP-!ead targeted RI/FSs.
Contractor RPMs should anticipate the extent of contractor involvement in the issuance of the
Support general and special notice letters, development of the SOW, and evaluation of PRP
engineering qualifications. Additionally, RPMs should note that separate work
assignments must be initiated for RI/FS negotiation and oversight of PRP RI/FS. The
initiation of separate work assignments is necessary for tracking and cost recovery of
oversight costs.
Section 104 of CERCLA requires EPA to use third party assistance in oversight of
PRP-lead RI/FS activities. Generally, this support is available through TES, ARCS,
other Federal agencies (such as the Corps of Engineers) or States. Oversight resources
are made available through the Case Budget process. At the time of settlement, the
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RPM should plan for oversight and identify in-house and extramural support needs.
Oversight planning requirements are discussed in greater detail in Chapter VI, RI/FS
Implementation. PRPs are required to pay for EPA's costs in connection with the RI/FS
including oversight.
B. Reporting RPMs must provide copies of general and special notices to the Information Management
Requirements Section of OWPE to ensure data entry into the Superfund Enforcement Tracking System
(SETS). Entry into SETS facilitates EPA efforts to track site activities and respond to
Congressional and other inquiries. In instances where identical notices are provided to
multiple PRPs, it is only necessary to provide one copy of the notice with an attached list
of other parties who have received the letter to the Administrative Record Coordinator,
State representative, and State or Federal trustee. This procedure notifies the
Administrative Record Coordinator, State representative and trustees of the status of
negotiations and their opportunity to participate.
SCAP/ RI/FS negotiations are tracked by SCAP/SPMS through CERCLIS. Exhibit V-5
SPMS summarizes SCAP/SPMS measures relevant to RI/FS negotiations. RPMs are
responsible for ensuring that an accurate CERCLIS Site Information Form (SIF) is
completed for RI/FS negotiations. Exhibit V-6 provides an example of a completed RI/FS
negotiations SIF. The RPMs should complete the SIF using the example outline of fields
and values:
A. Negotiation type Code/Name (FN = RI/FS Negotiations)
B. Lead (FE = Federal Enforcement)
C. Planned start/complete date (FYQ)
D. Actual start/complete date (MM/DD/YY)
E SPMS Target Status (P = Primary, A = Alternate)
F. SCAP Note
G. Enforcement Activity Outcome Code/Name
H. Number of PRPs involved in the negotiations
I Remedy Operable Unit
J. Remedy Type Code (C01 = RI/FS, FS1 = Feasibility Study, RI1 = Remedial
Investigation, system will automatically generate Remedy Name, sequence
number is required before system will add record).
K. Financial Requirements:
1. Financial Type/Code (G = Planned Obligation)
2 Financial Amount (Amount required for negotiation)
3. Financial Plan Date (FYQ)
4. Contract Vehicle (TES = Technical Enforcement Support)
5. Budget Source (E = Enforcement)
6. Case Budget Status (ALT = Alternate, APR = Approved)
RI/FS negotiations start when the first special notice letter is issued to the PRPs, when
a waiver of special notice is issued, or when the first general notice letter with an
expected completion date is issued.
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RI/FS negotiations are complete when: 1) an administrative order for RI/FS is issued; or
2) a signed consent decree for RI/FS is referred by the Region to Headquarters or DOJ;
or 3) a decision is made to proceed with a Fund-financed RI/FS as indicated by the
obligation of RI/FS funds.
At this time an outcome code (G above) should be recorded.
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Exhibit V-5
SCAP/SPMS Measures for RI/FS Negotiations
ACTIVITIES
RI/FS Negotiations Start
RI/FS Negotiations Complete
SPMS
REPORTING
SCAP
PLAN/REPORT
X
X
QTRLY
X
X
ANNUAL
X
X
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IV. POTENTIAL PROBLEMS/RESOLUTIONS
This section discusses specific issues the case team may confront during the course of
RI/FS negotiations, and suggests methods for resolving these issues.
A. Stipulated As an incentive for PRPs to properly conduct the RI/FS and correct any deficiencies
Penalties discovered during the conduct of the agreement, EPA should include stipulated penalties in
the terms of the agreement. Penalties should begin to accrue on the first day of the
deficiency and continue to be assessed until the deficiency is corrected. The type of
violation (i.e., reporting requirements vs. implementation of construction requirements) as
well as the amounts per violation per day, should be specified as stipulated penalties in
the agreement. Also section 122 allows EPA to seek or impose civil penalties for
violations of administrative orders.
B. Past Costs In many cases, EPA has incurred significant costs at a site prior to settling with PRPs
for performance or finance of the RI/FS. Such incurred costs may include the conduct of
one or more removal actions. EPA must decide whether to pursue recovery of these
costs as part of the RI/FS settlement or delay attempting to recover pre-RI/FS costs
until RD/RA negotiations. The case team should determine past costs prior to the
special notice letter and include them in the letter as a demand. In negotiations, the case
team should consider the numbers of settlors/non-settlors, the likely statute of limitations
for the removal, the possible implications of cost recovery litigation on remedial
activities, and possibilities of reallocation in RD/RA negotiations.
C. RI/FS The cost of EPA or State oversight is generally a major issue during RI/FS negotiations.
Oversight PRPs typically prefer a settlement where their financial responsibility for oversight costs
Costs/Limits is limited to a fixed dollar amount. EPA generally prefers no limit on the recoverable
amount of oversight expenses.
The amount of EPA/State oversight also is often an issue during RI/FS negotiations.
PRPs may prefer a settlement where the extent of EPA's presence in the field during
PRP conduct of RI/FS activities is predetermined. EPA policy, however, is to not limit
the frequency or extent of oversight activities, since conditions may develop that were
unanticipated at the time of settlement and require increased attention by the oversight
agency. Oversight includes EPA costs, including contractors.
D. Removals During the course of the RI/FS, site conditions may deteriorate to the point where
Required removal activity is required. The case team should be prepared for the possibility that a
During RI/FS removal may be required during the RI/FS and include provisions for such a situation in
the settlement document. RPMs should ensure that appropriate language is incorporated
into the AOC or CD to reserve liability for such costs.
£ Baseline OSWER guidance requires that a baseline risk assessment be performed before a ROD is
Risk signed. Performance of the risk assessment may be a significant issue during RI/FS
Assessment negotiations. Some Regions determine on a site by site basis whether to perform the risk
assessment themselves. Other Regions prefer to require PRP preparation of the risk
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assessment as a standard settlement provision. In Regions that approach this issue on a
case-by-case basis, the case team may evaluate the site complexity and the ability and
potential of the PRP to prepare an adequate and accurate assessment. The case team
should consider the technical capabilities of the PRPs and/or their proposed contractors,
the cooperativeness of the PRPs during negotiations, and the potential involvement of
the PRPs in the RD/RA when deciding whether to pursue PRP performance of the risk
assessment as a settlement provision. A middle ground is to have EPA perform part of
the risk assessment. For example, exposure assessment assumptions are somewhat
subjective and may be distorted by PRPs or their attorneys. Instead, the model order
and SOW could be redrafted to reserve this element for EPA, and on a case-specific
basis, allow PRPs to do this work.
F. Additional Under the AOC or CD, PRPs agree to complete the RI/FS, including the tasks required
Wotk under either the original work plan or a subsequent or modified work plan. This may
include determinations and evaluations of conditions that are unknown at the time of
execution of the agreement. Modifications to the original RI/FS work plan are frequently
required as field work progresses. Work not explicitly covered in the initial work plan is
often required and therefore provided for in the order. This work is usually identified
during the Rl and is driven by the need for further information in a specific area. In
general, the agreement should provide for fine-tuning of the Rl, or the investigation of an
area previously unidentified. As it becomes clear what additional work is necessary,
EPA will notify the PRPs of the work to be performed and determine a schedule for
completion of the work.
EPA must ensure that the clauses for modifications to the work plan are included in the
agreement so that the PRPs will carry out the modifications as the need for them is
identified. To facilitate negotiation on these points, EPA may consider one or more of the
following provisions in the agreement for addressing such situations:
Defining the limits of additional work requirements
Specifying the dispute resolution process for modified work plans and
additional work requirements (this is particularly difficult if the State is
involved)
Defining the applicability of stipulated penalties to any additional work which
the PRPs agree to undertake.
The order may not agree that there will not be an investigation of potential problem
areas.
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Guidance
Manuals
Contacts
V. REFERENCES
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1987)
OSWER Directive 9335.3-01 "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA," Appendix A, "PRP Participation" (October 1988)
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987)
OSWER Directive 9835.8, "Model Statement of Work" (June 2,1989)
OSWER Directive 9355.1-1, Superfund Federal Lead Remedial Project Management
Handbook (December, 1986)
OSWER Directive 9375.1-4-d, State Participation in the Superfund Program. Appendix D,
"Procedures for Implementing Intergovernmental Review for the Superfund Program"
(June 2,1988)
Administrative Orders and Consent Decrees
OECM, CERCLA Branch, at FTS 382-3077
OWPE, CERCLA Enforcement Division, Compliance Branch, Settlement Section, at
FTS 382-4838
Model AOC for RI/FS
OWPE, CERCLA Enforcement Division, Guidance and Oversight Branch, at
FTS 382-5646
Special Notice Procedures and Model Letters
OWPE, CERCLA Enforcement Division, Compliance Branch, Settlement Section, at
FTS 382-4838
OWPE, CERCLA Enforcement Division, Guidance and Oversight Branch at FTS 475-
6770
Model SOW
OWPE, CERCLA Enforcement Division, Guidance and Oversight Branch, at FTS 382-
5646
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VI. ACTIVITIES CHECKLIST
This activities checklist is not intended to provide an exhaustive list of procedures.
RPMs should use it as a guide when involved in RI/FS negotiations.
1) Decision to start the RI/FS
a) Is the RI/FS start planned in the SCAP?
b) Initiate intergovernmental review process
2) Form Case Team
a) Review PRP Search and identify follow-up work
b) Begin developing negotiation plan
3) Information exchange/general notice
a) Issue information request letters
b) Issue general notice letters
c) , Encourage formation of PRP steering committee
d) Complete follow-up work identified during PRP search review
e) Notify State and Natural Resource Trustees of negotiations
4) Scoping
a) Develop site objectives
b) Develop site management strategy
5) Negotiation Preparation
a) Develop SOW
b) Develop draft AO
6) Formal Negotiations
a) Issue special notice letters
b) Evaluate good faith offer
c) Request negotiation extension, if appropriate
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7) Conclude negotiations
a) Prepare AO for signature
b) Initiate Fund-financed activity, if appropriate
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Appendix
-------
Remedy Selection and Negotiation Plan
1) Schedule and Staffing Requirements
a) Provide a schedule for completing the negotiations (including
activities, staff and contractor support)
b) Describe coordination with State and other government offices
2) Negotiation Objectives
a) Develop initial and bottom-line negotiation positions
b) Assess the desirability of a PRP RI/FS relative to site and PRP
history to date
c) Identify potential for alternative settlements, including mixed funding,
fle minimis or partial settlements (usually for RD/RA)
3) Costs Incurred and Cost Recovery Plan
a) Summarize costs incurred to date and estimate future response
costs at the site
b) Develop negotiation strategy for cost recovery, including the degree
of compromise available on past and oversight costs and the linkage
between recovery of past and oversight costs and PRP
performance
c) Describe the methods used to document costs for the site and
identify sources for cost documentation requests
d) Assess timing of demand, considering statute of limitations, etc.
4) Remedy Selection Process
a) Discuss the methodology used in selecting a site remedy (identifying
participants in RI/FS review; ROD preparation; PRP and public
participation in the process; and compilation, review, updating and
certification of the Administrative Record)
b) Indicate how remedy selection affects the RD/RA negotiation
process
5)_ Criteria For Good Faith Offer
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a) Include PRPs willingness to conduct or finance site clean-up activities
and reimburse EPA for oversight activities, response to EPA's
statement of work, demonstration of PRP capabilities, etc.
6) Enforcement Prerequisites
a) Discuss the progress made in identifying PRPs and PRP willingness
to cooperate with the government
b) Assess enforcement potential including determination of imminent
and substantial endangerment, strength of evidence/liability,
financial viability of PRPs, etc.
c) Assess use of enforcement tools including special notice, unilateral
actions, actions against recalcitrants, etc.
7) Technical Requirements For PRP Performance
a) Develop scope of work or work plan
b) Describe key items required to conduct PRP oversight
c) Assess the site access situation
8) Draft Administrative Order (AO) or Consent Decree (CD), as appropriate
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RI/FS IMPLEMENTATION
I. DESCRIPTION OF ACTIVITY ....1
Introduction 1
RFS Overview 1
Phases of RI/FS Activity 2
Scoping the RI/FS 2
Site Characterization and Baseline Risk Assessment 2
Treatability Investigations 3
Development and Screening of Alternatives 3
Detailed Analysis of Alternatives 3
Oversight Objectives 3
Roles and Responsibilities 4
RPM 4
Oversight Assistant 6
Natural Resource Trustees 7
ATSDR, 7
II. PROCEDURES AND INTERACTIONS .8
A. Project Scoping.. 8
Preliminary Scoping 8
Scoping After Agreement 9
Work Plan..... 10
Sampling and Analysis Plan (SAP) 10
Health and Safety Plan .10
B. Site Characterization 11
Collection and Analysis of Field Data 11
C Risk Assessment 12
D. Treatability Investigations 14
E Development and Screening of Alternatives 15
F. Detailed Analysis of Alternatives 16
III. PLANNING AND REPORTING REQUIREMENTS 18
A. SCAP/SPMS.. 18
B. Site Information Form (SIF) 18
C. Budget 19
IV. POTENTIAL PROBLEMS/RESOLUTIONS 20
A, Dispute Resolution 20
B. Corrective Measures 20
V. REFERENCES 21
Regulation 21
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Guidance 21
Manuals 21
Training 22
Contacts 21
VI. ACTIVITIES CHECKLIST 23
Preparation and Management 23
Community Relations Plan .23
Project Planning 23
Oversee Rl Field Work and Data Analyses. 27
Perform or Oversee Risk Assessment 29
Remedial Investigation Report........... 29
Treatability Testing 30
Development and Screening of Alternatives.. 30
Detailed Analysis 31
Feasibility Study 31
APPENDIX
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RI/FS IMPLEMENTATION
Introduction
RI/FS Overview
[ DESCRIPTION OF ACTIVITY
The focus of this chapter is on the RPM's role in overseeing the implementation of a
PRP-conducted RI/FS. To put the oversight responsibilities in context, a summary of the
RI/FS process is also provided.
A PRP-conducted RI/FS is usually authorized by an administrative order under sections
104 and 122 of CERCLA and may be ordered unilaterally under section 106. It is EPA's
policy to allow the PRP to conduct the RI/FS when the PRP:
Is technically qualified or otherwise capable of performing the necessary
activities within the time constraints
Agrees to conduct the RI/FS in accordance with the terms and conditions of the
administrative order or consent decree
Reimburses the Superfund for all EPA and qualified oversight assistant costs
associated with oversight of the project.
Actual PRP implementation of the RI/FS begins after the administrative order is signed.
The process is complete once the Agency conducts a closeout meeting, approves the
final RI/FS report as submitted by the PRPs or as amended by the Agency, and issues
the Record of Decision (ROD).
In general, the RI/FS is an investigation designed to characterize the site, assess the
nature and the extent of the contamination at a site, evaluate the potential risk to
human health and the environment, and develop and evaluate potential remedial
alternatives. An RI/FS accomplishes two primary objectives:
Provides information to assess the risks posed by the site
Evaluates a range of remedial alternatives (engineered solutions) based on
specified criteria.
The process is phased, and is composed of the Rl, which is the actual data collection and
risk assessment process (corresponding to the first objective), and the FS, which
develops and evaluates remedial alternatives. The Rl and FS include iterative activities
and overlap in timing. Data collected in the Rl influences the development of remedial
alternatives in the FS, which in turn affects the data needs and the scope of treatability
studies. The distinction between the Rl and FS phases is made to emphasize the focus of
the study.
The specific tasks required to perform an RI/FS vary, and are phased in accordance
with a site's complexity and the amount of available information. A phased process
facilitates early identification of data collection requirements. These requirements are
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intended to characterize the site effectively by describing contaminant concentration
contours, fate and transport, and exposure pathways so that sufficient information is
available to evaluate and compare the remedial alternatives.
Phases of RI/FS There are five major phases of RI/FS activity. Each phase is briefly summarized below
Activity and graphically depicted in Exhibit VI-1.
Scoping the RI/FS
Scoping is a process that is completed through:
• Preliminary planning within EPA and State agencies
Negotiations with PRPs
EPA review of project plans submitted by the PRPs after signing an order
with EPA
During the preliminary planning phase prior to negotiations between EPA and the PRPs,
EPA identifies potential sources of contamination, pathways, and receptors. The
Agency then establishes site-specific objectives of the RI/FS and a strategy for the
general management of the site. The scope should insure that the objectives of the
RI/FS are as clear as possible, there is sufficient understanding of the desired work to
negotiate a statement of work, and resource needs can be defined.
Specific tasks and deliverables, as well as a schedule, usually will be identified in the
context of negotiations with the PRPs on the statement of work as part of a consent
order. After an order between EPA and the PRPs for performance of the RI/FS is
signed, the pre-RI/FS project scope will be defined in the approved work plan, which
usually is developed by PRPs, subject to EPA's approval. Many of the activities begun
during the scoping process are continued and refined as site work progresses and new
information is obtained.
Site Characterization and Baseline Risk Assessment
The objective of this process is to provide information to determine the extent of the
public health and environmental threat posed by the site. This process is composed of
two major components. The first involves the collection and analysis of field data to
determine the physical site characteristics, sources of contamination, and nature and
extent of contamination. The second involves the development of a baseline risk
assessment.
The purpose of the baseline risk assessment is to characterize the current and potential
risk that the site poses to human health and the environment. The results of the baseline
risk assessment may indicate that the site poses substantial, little or no threat, and that
substantial, limited, or no further response activity is required. If the baseline risk
assessment indicates that action is necessary, the assessment is revised (appended)
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Exhibit VI-1
Phased RI/FS Process
FROM:
• Preliminary
Site Assessment
• Site Inspection
• NPL Listing
SCOPING
OF THE RI/FS
Collect & Analyze
Existing Data
Identify Initial
Project/Operable Unit,
Likely Scenarios &
Remedial Action
Objectives
Initiate Federal/State
ARAR Identification
Prepare Project Plans
REMEDIAL INVESTIGATION
SITE CHARACTERIZATION
Conduct Field Investigation
Define Nature of Extent of
Contamination (Waste Types,
Concentrations, Distributions)
Identify Federal/State
Contamination and Location-Specific
ARARs
Conduct Baseline Risk Assessment
Refine Remedial Action Goals
TREATABILITY INVESTIGATIONS
Perform Bench or Pilot Treatability
Tests (As Necessary)
FEASIBILITY
STUDY
DEVELOPMENT AND
SCREENING OF ALTERNATIVES
Identify Potential Treatment
Technologies, Containment/Disposal
Requirements for Residuals or
Untreated Waste
Screen Technologies
Assemble Technologies Into
Alternatives
DETAILED ANALYSIS
OF ALTERNATIVES
Further Refine Alternatives (As
Necessary)
Analyze Alternatives Against
The Nine Criteria
Compare Alternatives Against
Each Other
TO:
Remedy Selection
Record of Decision
Remedial Design
Remedial Action
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with an evaluation of how each alternative carried through to the detailed evaluation
addressed the risk(s).
Treatabilitv Investigations
Treatability studies should provide sufficient data in a timely manner to adequately
evaluate treatment alternatives during the detailed analysis in the FS. RPMs should
identify and encourage the PRPs to identify the need for treatability testing as early in
the RI/FS process as possible. If remedial actions involving treatment have been
identified by either EPA or the PRPs, the RPM should determine the need to conduct
treatability studies. Testing of the most promising treatment technologies is often
necessary to assess their effectiveness.
Development and Screening of Alternatives
Alternatives developed represent a range of response actions that, with the exception of
the no action alternative, are protective of human health and the environment and meet
ARARs or qualify for a waiver. The range must include treatment options. Under some
circumstances, such as when the site is a municipal landfill, developing a complete range
of alternatives may not be practical. If site-specific conditions warrant the omission of a
full range of alternatives, RPMs should ensure that the rationale for reaching this
decision is well documented.
Detailed Analysis of Alternatives
During the detailed analysis, each alternative is assessed against specific evaluation
criteria. The PRPs should present the results of this assessment in a format that allows
the RPM to make reasonable comparisons between alternatives. By making these
comparisons, the RPM can identify trade-offs among the various alternatives. Appendix
F of OSWER Directive 9355.3-01 "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA" (October 1988) contains sample formats for
arranging detailed analysis of alternatives.
Oversight Under section 104(a)(1) of CERCLA, the Agency is responsible for providing oversight of
Objectives PRP-conducted RI/FS. The RPM has primary responsibility for managing RI/FS
oversight.
The nature of oversight activity at a particular site depends upon the technical
complexity of the site and possible remedies, the nature of the work being done, the
Agency's level of confidence in the PRP's technical competence and, during the course of
the project, the PRP's demonstration of quality work. In general, the RPM is responsible
for accomplishing four primary objectives:
Verifying that the work complies with the Administrative Order (AO), the
Statement of Work (SOW), work plan and Sampling and Analysis Plan (SAP)
Verifying that the RI/FS complies with CERCLA, the NCP and relevant Agency
guidance
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Verifying that all work is performed according to generally accepted scientific
and engineering methods
Verifying that sufficient data is being collected and analyzed to enable EPA to
identify site risks, develop alternatives, select a preferred remedial alternative
and write the ROD.
Achievement of these objectives depends, in part, upon the terms of the agreement
between EPA and the PRP, guidance and direction provided to the PRP, and effective
project review.
The agreement between EPA and the PRP will not be discussed in this chapter since it is
covered in Chapter V, RI/FS Negotiations/Settlement. However, it is important to
remember that the preliminary scoping conducted prior to negotiations, the PRP's
qualifications, and the terms of the agreement establish a framework affecting oversight
during the actual conduct of the RI/FS.
The RPM should provide as much guidance to the PRPs as possible concerning the RI/FS
process. Relevant EPA guidance documents and examples of deliverables are
appropriate materials that should be provided. Guidance and expectations concerning
format, technical content, mechanisms for incorporating Agency comments, and schedule
of deliverables must also be clearly communicated. Frequent meetings with the PRPs
during the course of the RI/FS facilitate PRP implementation that will satisfy Agency
criteria.
Finally, the RPM must effectively manage the project to meet the RI/FS objectives
within time constraints. To effectively manage the project, the RPM, with contractor
support, must review all deliverables and oversee the on-going site activities of the PRP-
conducted RI/FS. The level of oversight (i.e. frequency of site visits, number of split
samples) should be determined site-specifically based on technical considerations (i.e.
treatability studies, use of innovative technologies, presence of hydrogeologic anomalies
or contaminants of special concern) and Agency expectations related to the quality and
timeliness of PRP field work, laboratory analysis, and deliverables.
Holes and Following is a summary of the primary roles and responsibilities of the RPM, oversight
Responsibilities assistant, Natural Resource trustees and ATSDR during the RI/FS. Appendix A of this
chapter contains exhibits which detail roles and responsibilities through the five RI/FS
phases.
RPM The RPM has the primary responsibility for overseeing all response activities. Prior to
the signing of the agreement between EPA and the PRP, the RPM will:
Identify the preliminary scope of RI/FS activity
Coordinate with the State and, as appropriate, other agencies (e.g., DOI,
NOAA, ATSDR) on scoping
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Identify the site-specific activities and deliverables required from the PRP
Provide a project schedule for the administrative order
Assure necessary Regional management review and approval of scoping
decisions, activities, schedule, etc.
Identify persons/agencies/extramural resources with particular expertise that
will provide technical review of activities and deliverables (these mechanisms
should also be used for scoping) and agree to the scheduled time frames
Budget intramural and extramural resources to support the project and finalize
associated paperwork
Verify that the planned activities will meet statutory requirements and satisfy
the RI/FS objectives.
Typically, the RPM will perform the following during the RI/FS:
Conduct scheduled and unscheduled site inspections in conjunction with the
oversight assistant
Monitor PRP adherence to the agreement; consult with counsel
Review all PRP and oversight assistant deliverables to assure quality and
provide related technical comments
Obtain internal EPA input on specialized matters (e.g., ground water,
contaminants, bedrock)
Meet with the PRPs periodically to communicate the Agency's requirements and
discuss progress, including good work and deficiencies in the work, and needed
work
Maintain Agency schedule for reviewing deliverables or meeting any other
deadlines
Assure that any aspects of the RI/FS performed by EPA are done (e.g., in some
instances the risk assessment or ARAR analysis)
Manage intramural and extramural resources
Maintain communication with the State throughout the RI/FS process with an
emphasis on understanding State perspective, identifying ARARs, and
coordinating community relations
Coordinate intergovernmental interactions
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Assure EPA management review at major stages (e.g., work plan, draft Rl,
proposed plan, ROD)
Conduct community relations activities, with assistance of the community
relations coordinator
Maintain the site file, including cost recovery documentation
Establish and update periodically the Administrative Record in conjunction with
ORC
Finalize any supplements to the RI/FS and write the proposed plan and ROD
Provide monthly updates of budget and project schedule information in CERCLIS
in coordination with Regional Information Management Coordinator (IMC).
Oversight Under section 104(a)(1) of CERCLA, EPA must procure the services of a qualified
Assistant person to assist the Agency in overseeing PRP-conducted activities. The oversight
assistant's role is to provide assistance to the RPM in overseeing PRP-conducted
RI/FS enforcement activities. The RPM should use discretion in determining the roles
and responsibilities of the oversight assistant.
Responsibilities that the RPM may assign to the oversight assistant include:
Assisting in planning of project scope and schedule.
Monitoring PRP field activities to verify performance in accordance with the
agreement with the PRPs and generally accepted scientific and engineering
methods.
Reviewing deliverables submitted by the PRPs.
Conducting quality assurance tasks.
Conducting the risk assessment.
Drafting any necessary supplements to the RI/FS for Agency finalization.
Conducting contingency planning to protect human health and the
environment in the unexpected event of an emergency.
Assisting in the reproduction of documents for the Administrative Record in
the Regional office and at the site. (Decisions on what documents to include
are made by the RPM in conjunction with Regional counsel).
Preparing and assisting in the implementation of community relations
deliverables and tasks.
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Natural Resource
Trustees
ATSDR
Providing site-specific information to the Regional IMC for input into
CERCLIS.
Procurement of the oversight assistant's service is typically obtained through
Technical Enforcement Support (TES) and the Alternative Remedial Contracts
Strategy (ARCS) contracts.
The RPM may also seek assistance in executing his/her oversight responsibilities
from the Department of the Interior (U.S. Fish and Wildlife Service and U.S.
Geological Survey) and the Department of Defense (U.S. Army Corps of Engineers)
(COE), among other Agencies.
The oversight assistant should perform tasks in a professional and non-
confrontational manner. There are limitations on the oversight assistant's authority.
The oversight assistant should not advise or issue directions regarding, or assume
control over, any aspect of the RI/FS when communicating with the PRPs. The
RPM should control the amount of direct communication between the oversight
assistant and the PRPs. The oversight assistant has no authority to allow
deviations from the site agreement, which includes the work plan, or any other
project plans. Any deviations must be approved by the RPM.
The natural resource trustees are responsible for assessing damages to natural
resources within their domain. The Federal assessment begins with Preliminary
Natural Resource Surveys (PNRS) which are typically initiated at the beginning of
the RI/FS process. The surveys are designed to assist the Agency in reaching
comprehensive settlements of all Federal natural resource claims under CERCLA
PNRSs are conducted by the National Oceanic and Atmospheric Administration
(NOAA) only in those Regions with coastal resources and by the Department of the
Interior (DOI) in all other EPA Regions. Both DOI and NOAA will conduct a survey
of the natural resources for which they act as trustees once they have been
contacted by the RPM. In addition, States have trusteeship responsibilities. RPMs
should confirm with Regional management procedures for notifying the trustees.
Under section 104(j)(6) of CERCLA, the Agency for Toxic Substances and Disease
Registry (ATSDR) must perform a health assessment for all NPL sites. This
assessment must be performed within one year of the site's proposed listing. The
ATSDR's health assessment is intended to determine the potential risks to human health
posed by the site.
After a site is proposed for listing on the NPL, the RPM should send the preliminary
assessment and site inspection report to the ATSDR and maintain information exchange
with them. However, RPMs must be cognizant of the fact that ATSDR may not
withhold site-related draft documents requested by the public. Therefore, RPMs must be
careful not to release confidential or enforcement-sensitive documents to ATSDR.
RPMs are responsible for reviewing and commenting on the draft Health Assessment
provided by the ATSDR. Data collected during the Rl activities and reports generated
as a result of that data collection also should be forwarded to ATSDR.
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II. PROCEDURES AND INTERACTIONS
This section summarizes the process and deliverables associated with each phase of
RI/FS activity. The specific procedures to follow in performing RI/FS oversight will be
described in OWPE's forthcoming "Draft Guidance on Oversight of Potentially
Responsible Party Remedial Investigations and Feasibility Studies."
A. Project Scoping is the planning phase of the RI/FS process. Project scoping for a site where it is
Scoping anticipated that the PRP will conduct the RI/FS occurs in two phases: before and during
RI/FS negotiations, and after the PRP has signed an agreement with EPA. RPM
responsibilities during each of these phases of project scoping also are discussed in
Section I of this chapter.
Preliminary Prior to the negotiations, the RPM begins defining the technical and administrative scope
Scoping of the pending RI/FS and the requisite oversight.
It is helpful for the RPM to sketch out a rough conceptual model of the site, including:
Source areas
Contaminants
Possible extent of migration
Media of concern
Pathways
Possible receptors
Possible risks
Possible acceptable contaminant ranges
Possible remedies.
The RPM should ascertain what information is required to delineate these matters.
Following general identification of this information, specific data needs should be defined.
The RPM then needs to develop specific instructions to add to the model statement of
work to assure that necessary data are gathered. In particular, the site-specific
objectives and general management strategy should be added to the model SOW.
It is particularly important that the statement of work be as specific as possible about
what is needed in the work plan, but it should not be so specific as to limit generally
required work. The RPM should decide whether EPA will perform specific tasks (e.g., the
risk assessment). The RPM should also keep in mind that Technical Assistance
Committees (TACs), which are internal EPA resources, and contractor support can and
should be used during preliminary scoping.
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Preliminary information that is used to develop the technical scope includes (1) existing
technical information, and (2) determination of decision points in the process and
corresponding data needs.
Administratively, the RPM should (1) initiate and maintain information exchange with
other Federal and State agencies, (2) identify enforcement concerns and provide
technical information to Regional counsel for use in planning and conducting negotiations,
(3) plan for intramural and extramural resources and initiate associated paperwork, (4)
procure an oversight assistant before the order is finalized to prevent unnecessary
delays, and (5) develop a community relations plan with the community relations
coordinator.
At this time, the RPM should also begin identifying oversight and review functions and
time frames. The RPM, in conjunction with the Section/Unit Chief, determines what
oversight activities are to be performed by TES or ARCS contractors or by other
government entities. One of the initial oversight activities that occurs during this phase
is EPA's assessment of the PRP's ability to conduct the RI/FS as demonstrated in their
Good Faith Offer (GFO) submitted within 60 days of the issuance of special notice. This
oversight activity is discussed in Chapter V, RI/FS Negotiations. Another oversight
planning activity is the scheduling of regular meetings with the PRPs that commence
after an agreement has been reached.
Scoping Once the Administrative Order has been signed by EPA and the PRP, the RPM should:
After
Agreement
Conduct a project initiation meeting and site visit with the PRP and if
procured, the oversight assistant
Coordinate interagency and intergovernmental responsibilities and support
functions, (e.g. natural resource trustees, COE, etc.)
Review PRP project plans
Implement the community relations plan. Any PRP participation in
community relations activities is controlled by EPA.
The required deliverables for the scoping process include a work plan, sampling and
analysis plan, and a health and safety plan.
It is very important to communicate with the PRPs at the beginning of the process to
enhance prospects for quality work. At a meeting, the RPM should assure that the
PRPs understand the applicable guidances and that they understand what EPA expects
of them in the RI/FS.
The RPM is responsible for coordinating review of project plans and for final approval of
those plans. PRP-conducted RI/FS activity cannot be initiated until the RPM approves
the plans. The RPM may conditionally approve sequential portions of project plans so
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that revisions concerning activities scheduled later in the project do not adversely impact
the schedule of earlier activities. Conditions to the approval must be specific.
Conditional approvals should be reviewed by the Section/Unit Chief.
In addition due to the uncertainties associated with sites, it may be necessary to modify
or supplement the initial plans. The RPM must review and approve any modifications in
writing.
Work Plan The PRP's work plan expands the tasks of the Statement of Work (SOW) by detailing
the work to be done in conducting the RI/FS.
The draft work plan is generally submitted by PRPs after the Administrative Order
(AO) is signed. It must direct in detail the activities and deliverables specified in the
SOW, including a schedule for all activities. Together with the Sampling and Analysis
Plan (SAP), it assures that PRPs gather all information and do the analyses needed in
an RI/FS and for a ROD. Thus, it is important for the work plan to be carefully
reviewed by the RPM. The draft work plan may also be reviewed by the natural
resource trustees and other divisions (programs) within the Regions, including the Quality
Assurance Office (QAO). The aspects of the RI/FS that must be delineated in the work
plan are described in the model SOW, which is discussed in Chapter V, RI/FS
Negotiations/Settlement and also in this chapter. Once a work plan has been
incorporated by reference into the AO, the RPM must ensure that the plan is available
for public review as part of the site file and the Administrative Record file.
Sampling and Analysis Plan (SAP)
The SAP details the procedures that the PRP plans to implement for conducting all field
activities. It has two components: a field sampling plan (FSP) and a quality assurance
project plan (QAPP). The FSP provides a detailed description of all RI/FS sampling and
analytical activities. In some Regions, it may be part of the Work Plan. The QAPP
describes the quality assurance and quality control protocols necessary to achieve
required data quality objectives. Data quality objectives (DQOs) are established and
assure that the analyses are performed with sufficient detection limits to identify
relatively low but significant concentrations of contaminants and to assure that
sufficient data are gathered. A pre-QAPP meeting is held between PRPs, PRP
contractors and laboratory representatives, the RPM, QAO representatives, and the
oversight assistant. The RPM should review the QAPP and FSP with the
Environmental Services Division (ESD) to determine whether the PRP plans can achieve
the data quality objectives.
Health and Safety Plan
The health and safety plan describes any special training, supervision, procedures, and
protective equipment needed by field personnel. EPA reviews the plan to ensure that it
provides for the protection of human health and the environment, but does not "approve"
the PRP's health and safety plan. PRPs must comply with Occupational Safety and
Health Administration (OSHA) requirements.
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B. Site
Characteri-
zation
Collection
and Analysis
of Field Data
Exhibits VI-2 and VI-3 portray RI/FS oversight activities during the scoping phase and
the other RI/FS phases.
The objectives of this phase are to define the site characteristics, the source(s) of
contamination, the nature and extent of contamination, and to determine possible fate
and transport of contaminants as preparation for determining site risks. The major
components are collection of field data, analyses of data and report preparation.
As an approach, RPMs may suggest that the PRPs direct their initial field data
collection effort to developing a general understanding of the site. Once this
understanding is achieved, RPMs should confirm that the PRPs focus more extensive
efforts on filling gaps in the data. Implementing a phased sampling approach may
ensure the efficient collection of data.
RPMs must have the PRPs establish the quality of old data through reliable means.
Data quality objectives apply to all data-old and new. The required technical
memorandum documenting the need for additional data should include the analysis
and meaning of old data as the basis for establishing what additional data is needed.
It is imperative that the site characteristics, including physiography, geology,
hydrogeology, and hydrology, be defined. This foundation is critical to subsequent
defining of potential transport pathways. In addition, data gathered during site
characterization are used in treatability analyses and in analysis of remedial
alternatives.
Determination of the location of each source is often difficult, particularly at old
sites. Aerial photographs from historical files and interviews often provide helpful
insights. For each location, the area and depth of contamination are usually
determined at incremental depths on a grid. Data on contamination are often
gathered at various depths to show concentration gradients to health-based levels. It
is important to gather data to define principal threat areas and volumes that may
warrant treatment. It is also important to gather material for contaminant mobility,
leaching and treatability testing.
The RPM must assure that the PRP provides notice of the planned dates for field
activities at least two weeks in advance. During the PRP conduct of field activities,
the RPM must assure that the PRPs collect sufficient information at the proper
locations and follow QA/QC procedures. The oversight assistant should keep
accurate records of site activities. This can be accomplished, in part, by having the
PRP and the oversight assistant use:
Field activity reports
Field logbooks
Photographic logs.
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Field activity reports may include a checklist to remind the oversight assistant of the
critical elements of the field activities and as a convenient means for documenting field
activities. Samples of field activity reports are provided in the appendix of OSWER
Directive 9835.3, "Guidance on Oversight of Potentially Responsible Party Remedial
Investigations and Feasibility Studies" (to be issued). Field activity reports should be
used in conjunction with the SAP. By combining these two reporting tools, the oversight
assistant will have a valuable tool to remind him/her of site-specific planned activities.
These combined reports may also enable the oversight assistant to keep an accurate
record of site activities that are not conducted according to plans.
Oversight assistants usually maintain an activity logbook. The logbook generally
includes: records of pertinent conversations with either the PRP or its contractor, a list
of potential or actual problems encountered at the site, an explanation for changes to the
work plan, and a record of any field activities not included in the field activity reports as
well as a description of daily activities and contacts with the public or press.
A photographic record of field activities may also be a useful tool for documenting field
work for PRPs as well as the oversight assistant. If the oversight assistant elects to
use this tool, he/she should keep detailed information about the location, date, time and
subject matter of each photograph.
If the RPM has not received sampling data within a month of analysis by the PRP's
laboratories, he/she should contact the PRPs to determine the reason for the delay.
In addition to the progress meetings, reports, technical memoranda, and data summaries,
the required deliverables for the site characterization process include the preliminary site
characterization summary and, once the baseline risk assessment is complete, the draft
Remedial Investigation (Rl) report.
The preliminary summary is prepared after the results from sampling efforts are
available. It provides information on contamination at various locations and depths,
including contaminants of concern and associated concentrations. It may also include
fate and transport projections. It also provides information for the risk assessment and
a reference for the RPMs to ensure that appropriate alternatives are being developed by
the PRPs. The summary may be used to provide ATSDR with data to use in preparing
health assessments. RPMs should assure that the data satisfy QA/QC requirements
and are accurately displayed.
The draft Rl report documents the data collection and analysis and supports the FS.
C. Risk A baseline risk assessment, which may be referred to as an endangerment assessment,
Assessment is conducted during the Rl. Regional management will use the baseline risk assessment to
determine whether, in the absence of remedial action, a particular site poses a
substantial danger to public health and welfare and the environment. There are two
separate inquiries: human health and the environment.
The baseline risk assessment process is cumulative in nature: the components of the
assessment build on one another. The RPM should assure that the PRPs have copies of
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i
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EPA's Superfund Public Health Evaluation Manual. Superfund Exposure Assessment
Manual, and Superfund Environmental Evaluation Manual, and access to the Integrated
Risk Information System (IRIS) and the Public Health Risk Evaluation Data Base.
The Region will have exercised discretion, when negotiating the administrative order, in
deciding whether the Agency should conduct the baseline risk assessment, whether to
allow the PRPs to perform this task, or whether the Agency should perform some tasks
(e.g., exposure scenarios/assumptions).
If the PRP conducts the assessments, the PRP must have a competent subcontractor.
The RPM is responsible for tracking and evaluating the different components of the
PRPs' baseline risk assessment. To do this effectively, the RPM should assure he/she
has specialized support. If PRPs are developing exposure assumptions, they may find it
helpful to work closely with the RPM. The RPM's oversight activities should include
meetings and a critical evaluation of the PRPs' progress reports and any required interim
deliverables. When exercising oversight authority, RPMs should attempt to resolve any
disputes and to resolve any delays as they arise. RPMs should not wait until the end of
the assessment process to address these issues.
RPMs should require the PRPs to submit interim deliverables. By reviewing these
deliverables, RPMs can ensure that the framework of the risk assessment process does
not deviate from Agency policy. These interim deliverables include:
A list of hazardous substances present at the site, proposed indicator
chemicals and their corresponding concentrations. Submittal of this list
ensures that the PRPs are properly assessing the risk based upon the most
problematic chemicals at the site, taking into account quantity and
concentration as compared to levels that present a risk, and critical
exposure pathways.
Exposure scenarios that include a description of the PRPs' assumptions and
use of validated sampling data, including:
Exposure points, medium routes, and numbers of exposed people,
based on reasonable worst case assumptions
Fate and transport models and the data that will be used with the
models.
Toxicological or epidemiological studies that supplement EPA's toxicity values.
Risk characterization.
In addition to the human health risk assessment, PRPs conduct an environmental
evaluation and prepare a report. The environmental evaluation addresses any critical
habitats affected by site contamination and any endangered species affected by the
contamination.
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Depending upon the circumstances at a particular site, the RPM may choose to expand
or reduce the list of interim deliverables.
Following completion of the required tasks, including the environmental evaluation, the
PRPs submit the draft Rl report and baseline risk assessment report (if EPA has
authorized PRP conduct of the baseline risk assessment). The environmental evaluation
report may be included in the baseline risk assessment report or as a separate document.
D. Treatability Treatability studies are designed to provide information that EPA uses in the detailed
Investigat- analysis of alternatives. The decision of whether to conduct these activities is based
ions upon whether a treatment alternative is properly considered for the site, the nature and
size of the site, the contaminants and media they are in, the potential for migration and
possible site risks, available information in technical literature, and the uncertainties
associated with selecting an appropriate site remedy. It is imperative that these
activities should be initiated early since they may take over six months to complete (i.e.,
biotreatability tests). The final decision on the type (bench or pilot) and extent of
treatability testing depends on uncertainties of treatment and the amount of work that
should be deferred to the remedial design (RD) process.
In addition to the progress meetings and reports, the required deliverables for treatability
investigations may include:
Identification of candidate technologies
Literature survey and determination of whether testing is necessary
Treatability testing work plan, or revisions to the original work plan
Treatability study SAP, or revisions to the original SAP
Treatability study health and safety plan, or revisions to the original
A treatability study evaluation report summarizing the results, evaluating
the test, and describing the following:
Remedial technology
Test objectives
Experimental procedures
Treatability conditions to be tested
Analytical methods
Data management and analysis
Health and safety
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Residual waste management
Following the completion of treatability testing, data should be analyzed and interpreted
in a technical report to EPA. Depending on the sequence of activities, this report may be
a part of the RI/FS report or a separate deliverable. The report should evaluate the
technology's effectiveness, implementability, and actual results as compared to the
predicted results. The report should also evaluate full-scale application of the technology,
including a sensitivity analysis identifying the key parameters affecting full-scale
operation.
Development During the process of developing alternatives, RPMs should ensure that the PRPs
and undertake the following activities:
Screening
of • Develop more specific remedial action objectives acceptable to EPA. This is
Alternatives very important as it sets the goals of the FS.
Develop a range of general response actions.
Identify areas or volumes of the media to be treated, contained and/or
subjected to institutional controls.
Identify, screen, and document technologies.
Assemble alternatives.
Screen the remedial action alternatives on the basis of effectiveness,
implementability, and cost.
Prepare an alternatives array document.
The information developed during these two activities is used in assembling remedial
technologies into alternatives for either the site as a whole or for a specific operable unit.
At some sites, a number of potential remedial options may be developed early in the
RI/FS process. In such cases, the RPM should screen alternatives to narrow the list of
options that will be evaluated in detail. The screening process is necessary for two
reasons. First, it streamlines the feasibility study process. Second, it ensures that the
most promising alternatives are being considered by EPA.
RPMs should either closely scrutinize the PRPs1 conduct of the screening process or do
this themselves. The alternatives development screening document, including the
alternatives array, must be scrutinized. At this stage, ARARs should be given specific
attention. RPMs should be wary of PRP proposals that are not effective-that treat too
little or do not treat to appropriate levels. RPMs must assure that Regional management
will have a number of distinct options and alternatives from which to select an
appropriate site remedy.
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The information available at the time of screening should be used to identify and
distinguish any differences among the various alternatives. If screening takes place, the
technical memorandum should present the alternatives in such a manner that the RPM
can evaluate each alternative with respect to its effectiveness, implementability, and
cost and document the rationale for screening out any alternatives. RPMs should retain
only the alternatives that are judged as the best or the most promising while retaining a
range of alternatives broad enough to satisfy requirements of CERCLA and the NCR.
These alternatives should be subjected to further consideration and analysis.
Alternatives that are screened out will not receive further consideration unless additional
information indicates that further evaluation is warranted.
In the event that there are only a limited number of viable alternatives for a particular
site, the RPM should either minimize or eliminate the alternative screening process.
F. Detailed Nine evaluation criteria have been developed to address statutory requirements, as well
Analysis of as the technical and policy considerations that have proven to be important for selecting
Alternatives from among the remedial alternatives. These evaluation criteria serve as the basis for
conducting the detailed analyses during the FS and for subsequently selecting an
appropriate site remedy. The criteria are:
Overall protection of human health and the environment
Compliance with ARARs
Long-term effectiveness and permanence
Short-term effectiveness
• Reduction of toxicity, mobility, or volume
Implementability
Cost
State acceptance
Community acceptance.
The detailed analysis process should include an evaluation of each alternative against
the nine criteria. However, the middle five criteria (long-term effectiveness and
permanence; short-term effectiveness; reduction of toxicity, mobility and volume;
implementability; and cost) will generally require more effort and discussion because the
key trade-offs or concerns among alternatives will most frequently relate to one or more
of these five.
The overall protectiveness and compliance with ARARs criteria (unless an ARAR
waiver has been obtained) will generally serve as threshold determinations in that they
must be met. Community and State acceptance typically may not be evaluated until
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comments on,the RI/FS report and the proposed plan have been received. The
evaluation criteria are discussed in more detail in Chapter VII, Selection of Remedy.
The PRPs will submit a technical memorandum summarizing the results of the
comparative analysis. In addition, the PRPs must submit a draft FS report to the RPM
for review and approval. This report, as adopted or modified by EPA, provides a basis
for remedy selection. It documents the development and analysis of remedial
alternatives. Once EPA's comments have been incorporated to the RPM's satisfaction,
the final FS report may be bound with the final Rl report.
Following the PRP's completion of the RI/FS report and the RPM's confirmation that
there is sufficient information to support the selection of a preferred alternative, EPA
begins the process of remedy selection which is discussed in Chapter VII, Selection of
Remedy.
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III. PLANNING AND REPORTING REQUIREMENTS
A. SCAP/ The RPM must periodically update information about the RI/FS process for the SCAP.
SPMS For example, activities such as RI/FS starts, field work starts, and draft RI/FS
completions must be entered into the CERCLIS database. The RPM must work closely
with the Regional Information Management Coordinator (IMC) to ensure that the
information provided is adequate for determining site funding needs.
Exhibit VI-4 presents the SCAP/SPMS targets for RI/FS.
H Site RPMs are responsible for completing an accurate CERCLIS site information form (SIF)
Information for RI/FS activity. Exhibit VI-5 provides an example of a completed SIF. RPMs should
Form (SIF) complete the SIF using the example outline of fields and the possible values:
A. Operable Unit (01)
B. Event (CO = RI/FS)
C. Lead (RP = Responsible Party)
D. Plan start/completion dates (FYQ)
E Actual start/completion dates (MM/DD/YY; start date - date order signed,
complete date - date ROD signed)
F. SPMS Target (P = Primary, A = Alternate)
G. Subevent Type (CF = Distribute RI/FS to Public)
H. Subevent Plan start/completion dates (FYQ)
L Subevent Actual start/completion dates (MM/DD/YY)
J. Takeover Flag (see below)
K. First start/complete (A = First and only, B = First of two or more, C =
Subsequent but not last of two or more, D = Final of two or more)
L Event Start NPL Status (Y/N)
M. Financial Requirements:
1. Financial Type (P = Planned Obligation)
2 Budget Source (E = Enforcements for Oversight)
3. Financial Amount (amount required for oversight)
4. Plan/Actual Date
5. Financial Vehicle (TES)
6. Fund Priority Status (APR = Approved, ALT = Alternate)
An RI/FS start involves the development of plans for sampling, operations, quality
assurance, health and safety, and community relations.
An RI/FS completion is defined as the signature of the ROD. A ROD is the document
prepared after completion of the public comment period on the RI/FS which identifies the
Agency's selected remedy for a site.
The takeover flag is an indicator which identifies events which have had a change in
lead. The valid codes are: T = Takeover, TT = Takeover of a takeover, or C0# = An
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Exhibit VI-4
SCPA/SPMS Targets for RI/FS
Targets
ACTIVITIES
Remedial Investigation/Feasibility Study Start
First RI/FS Starts
Subsequent RI/FS Starts
RI/FS To Public
RI/FS Completions (ROD) (S/C-3)
First RI/FS Completions (ROD)
Subsequent RI/FS Completion (ROD)
Final RI/FS Completion (ROD)
SPMS
TARGET
X
SCAP
TARGET
X
X
X
X
X
X
QUARTERLY
TARGET
X
X
X
X
X
X
X
ANNUAL a
TARGET |
1
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X |
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The SPMS target combines first, subsequent and final as a single target.
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event code (C2111) followed by a sequence number to indicate which event was taken
over that created the new event record.
C. Budget Funding for oversight of PRP-conducted RI/FSs is obtained from OSWER's enforcement
budget. The standard RI/FS oversight budget is $20,000 per quarter. The average
PRP-lead RI/FS implementation requires ten to twelve fiscal year quarters. When
planning the budget, the RPM should ensure that no remedial funding is used for PRP
oversight.
By using the enforcement budget, it may be possible for the RPM to buy in to remedial
contract services such as ARCS. Before attempting to buy in to these services, RPMs
should check with their IMC and Section Chief.
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A. Dispute
Resolution
B. Corrective
Measures
IV. POTENTIAL PROBLEMS/RESOLUTIONS
During the course of a PRP-conducted RI/FS, the PRP may encounter problems, or the
RPM may identify unsatisfactory or deficient PRP performance. This section discusses
some possible solutions to the problems commonly encountered by RPMs overseeing PRP-
conducted RI/FSs.
When disputes arise between the RPM and the PRPs' project manager, the RPM
should attempt to informally resolve the matter. If informal efforts fail, the RPM
should implement formal dispute resolution mechanisms after consultation with the
site attorney.
The AO usually will set forth the formal dispute resolution procedures. This process
is generally initiated by a written notice of disapproval by an appropriate manager
within the Agency. Generally, the PRP must reach a negotiated agreement within
14 days of receiving the notice. For cases in which the negotiations fail, EPA will
prepare a written record of the negotiation's outcome. Often the order is structured
to require the PRP to appeal or do the work. This decision can be appealed to the
Division Director, who is the final arbitrator of the dispute. If the PRP fails to
comply with the decision, the Agency may take the following action:
Seek stipulated and statutory penalties
Take over the RI/FS
• Take other action (e.g., file suit)
The RPM should work closely with Regional management and ORC to coordinate
dispute resolution efforts.
If oversight investigations discover that the PRP, or its contractor, is performing field
and laboratory activities in a manner inconsistent with the Work Plan or SAP, the RPM
may need to implement corrective measures. For the most part, informal dispute
resolution procedures should be sufficient to remedy the problem. The RPM can initiate
this process by first talking with the PRP's designated technical coordinator. If this
approach does not correct the problem, the RPM should then use the more formal
approach of issuing a notice of deficiency.
To issue a notice of deficiency, RPMs should:
Notify the PRPs in writing
Describe the nature of the deficiency
Request that the PRP undertake appropriate corrective action within a
specific period.
Failure to respond to the deficiency notice could lead to penalties or EPA takeover.
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V. REFERENCES
Regulation OSHA Regulations, 29 C.F.R. § 1910.130 (45654 Fed. Reg., Dec. 19,1986).
Guidance OWSER Directive 9335.3-01, "Guidance for Conducting Remedial Investigations and
Feasibility Studies under CERCLA" (October 1988).
OSWER Directive 9835.3-01 A, "Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility Studies" (October 1988).
OSWER Directive 9833.3A, "Interim Guidance on Administrative Records for Selection of
CERCLA Response Actions" (March 1,1989).
OSWER Directive 9285.4-00, "Guidance for Conducting ATSDR Health Assessment
Activities with the Superfund Remedial Process" (April 1987).
OSWER Directive 9283.1-2 "Draft Guidance on Remedial Actions for Contaminated
Ground Water at Superfund Sites."
OSWER Directive 9835.3,"Guidance on Oversight of Potentially Responsible Party
Remedial Investigations and Feasibility Studies" (To be issued).
OSWER Directive 9335.0-7B, "Data Quality Objectives for Remedial Response
Activities" (March 1987).
OSWER Directive 9836.0-1 A, "Community Relations During Enforcement Activities and
Development of the Administrative Record" (November 1988).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing Superfund Decision
Documents: The Proposed Plan, Record of Decision, Explanation of Significant
Differences and the ROD Amendment" (July 1989).
OSWER Directive 9335.0-14, "A Compendium of Superfund Field Operation Methods"
(September 1987).
OSWER Directive 9835.8 , "RI/FS Model Statement of Work" (June 2,1989).
OWPE, "Draft TES User Guide" (June 1987).
USEPA, "The User's Guide to the Contract Laboratory Program" (August 1982).
USEPA, "Selected Technical Guidance for Superfund Projects" (December 1988). This
pamphlet is reproduced on the following pages.
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Manuals OSWER Directive 9284-1, Superfund Public Health Evaluation Manual (October 1986).
OSWER Directive 9285.7-01, Interim Final Risk Assessment Guidance for Superfund -
Environmental Evaluation Manual. (March 1989).
OSWER Directive 9285.5-1, Superfund Exposure Assessment Manual (September 1987).
OSWER Directive 9234.1-01 and -02, CERCLA Compliance with Other Laws Manual
(August 1988).
OSWER Directive 9230.0-3B, Community Relations in Superfund: A Handbook (June
1988).
US EPA, NEIC Policies and Procedures Manual (revised November 1984).
Training OERR conducts periodic training on the RI/FS process.
Contacts OWPE, CERCLA Enforcement Division, Compliance Branch, Enforcement Section, at
FTS 382-5617.
OWPE, CERCLA Enforcement Division, Guidance and Oversight Branch, and FTS 475-
6770.
OERR, Hazardous Site Control Division, at FTS 382-4632.
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VI. ACTIVITIES CHECKLIST
This section discusses the RPM's management functions in overseeing all RI/FS
activities. This checklist is not intended to present an exhaustive set of procedures.
RPMs should exercise their professional discretion when deciding what procedures are
appropriate for a particular site.
Preparation and Management
1) If not previously done, identify the preliminary scope of RI/FS activity
for the site. Establish site-specific objectives. Develop a general
management strategy for site activity.
a) Assure appropriate ESD and management review of
scoping.
2) Organize regional team and specialists as needed (e.g., hydrogeologist,
human risk specialist, ecological risk specialist, and remedial engineer).
3) Procure the services of qualified oversight assistant(s).
4)__ Coordinate interagency and intergovernmental responsibilities, including
those of the State, ATSDR, and natural resource trustees.
5), Assure budgetary support in SCAP.
6)_ Assess the PRPs' ability to conduct the RI/FS (financial, technical
managerial).
Community Relations Plan
7) Develop a community relations plan and define the PRPs1 participation
(if any).
Project Planning
8) Assure that PRPs have collected and considered available data.
9) Conduct an initiation meeting and site visit with the PRPs.
10)__ Prior to the PRP's development of a work plan, sampling and analysis
plan, and site health and safety plan, meet with PRPs, and, as
appropriate, ESD and oversight assistant, to assure that:
a) PRPs understand objectives of SARA and, for the
site, preliminary remedial action objectives and
alternatives
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b) PRPs understand need for treatability studies
c) PRPs understand the RI/FS guidance, risk
assessment guidances and other guidances
d) PRPs understand what to include in the plans
e) PRPs understand roles and responsibilities.
11) Review the work plan, with in-house (e.g. ESD and WMD specialists)
and contractor support.
a) Background information
b) Objectives, preliminary conceptual model
c) Management plan, including general strategy,
activity schedules, advance notice to EPA of field
activities, reporting and meeting schedules (including
data reporting), deliverables schedules, equipment
and personnel, data management
d) , Site characterization
Field support; preparation
Physical characteristics (e.g. geology;
hydrology); sources of contamination; nature and
extent of contamination; information to be
gathered; methods of gathering information;
extent of field investigation and how it is
determined (include off-site for hydrology, extent
of contamination, etc.); sufficiency for multiple
purposes (e.g. extent, fate and transport, risk,
treatability, delineation of remedial alternative;
methods of data analysis; information produced
and format)
- Assure adequate off-site work (e.g. for
hydrological setting, pathways)
- Supplemental field work
- Site characterization report requirements, data
presentation
e) Risk assessment
- Federal and State ARARs (approach, primarily
to contaminant specific and location specific)
Human health
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Approach to contaminant identification;
exposure assessment, use of SEAM, use of
current and maximum reasonable use scenario
assuming growth; exposure points with
pathways, media, exposure route, persons
exposed and amount exposed to, fate and
transport models; use of IRIS and other data on
toxicity; risk characterization; deliverables in
final report
Environmental evaluation
Plan, implementation, deliverables, report
Review/approval
f). Rl report
- Content, form, review, response to EPA's
comments, approval
g) Treatability studies
- Schedule early start
- Candidate technologies, approach to determining
need for testing?
- Work plan contents
- Implementation
- Evaluation report
h)_ Development and Screening of Alternatives
- Development review/approval of remedial action
objectives; contaminant specific ARARs
- Approach to developing and refining alternatives
- Approach to screening
- Methodology for developing and incorporating
action specific ARARs
Deliverables, including alternatives array
document
Review/approval
i)____ Detailed analysis
- Nine Criteria and comparative analysis
- Report on comparative analysis and
presentation
- Response to EPA's comments
j) . FS Report
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Content, Form, review, response to EPA's
comments
12) Review the sampling and analysis plan
a) FSP
Site background (including an evaluation of
existing data)
Sampling objectives
Data quality objectives
Sample media
Sampling locations and rationale
Sampling frequency and rationale
Number of samples and justification
Number of field blanks, trip blanks, and
duplicates
Sampling equipment
Sampling procedures and rationale
Sampling handling (including chain-of-custody
procedures)
Field analytical procedures
Decontamination procedures
Sample designation
Laboratory analytical procedures, equipment,
and detection limits
Systematic requirements to fully delineate each
source and the nature and extent of
contamination to DQO levels.
b) QAPP
DQOs for measurements - Assure that soils, ground
water measured to levels consistent with risk range
in proposed NCP
- Sampling procedures
- Sample custody procedures
- Calibration procedures and frequency
- Analytical procedures
- Data reduction, validation, and reporting
procedures
Internal quality control checks and frequency
- Performance and systems audits and frequency
Preventative maintenance procedures and
schedules
- Data assessment procedures
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- Corrective action procedures
- Quality assurance reporting procedures.
13) Receive the health and safety plan.
14) Draft comments; changes to PRP's plans.
15) Coordinate with State, trustees as necessary.
16) Management review of project plans.
17) Approve/modify plans.
18) Refine oversight plan.
- Address what is to be done, when, by whom
- Assure oversight persons are informed of their duties and of
schedules
- Budget resources
- Assure other communications; e.g., State; ATSDR; trustee
- Anticipate common problems.
19) Open Administrative Record at Region and near site; add approved
plans.
20) Community relations activities upon approval of plans.
Oversee Rl Field Work and Data Analyses
21) Meeting of EPA team members, specialists, QA/QC person and
oversight assistant to review work, schedules, roles and
responsibilities.
22) Meet with PRPs' contractor to assure that they understand work plan;
requirements for notice to EPA; field methodology; QA/QC at site and
in lab (methods, detection limit, etc.)
23) Review PRP's field support preparation and resources.
24) Develop field check lists.
25) Site characterization, source definition, description of nature and
extent of contamination
On an ongoing basis
a) Assure compliance with work plan and sampling and
analysis plan.
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b) Oversee schedule, assure advance notice by PRP of
field work, schedule site inspections, have oversight
assistant review data as developed by PRP for
sufficiency, QA/QC trends.
c) Assure adequate locations, types, depths, numbers,
etc. of samples.
d) For ongoing fieldwork, check quality of methods,
sampling, testing; assure sample splits, spikes,
blanks, etc. QA/QC of loss/analyses - assure use
of proper protocols; lab audit, compare splits etc.
- Geology, physiography
- Ground water monitoring well
construction/installation
- Ground water elevations and pump tests in
various strata
- Soil sampling (surface/at depths)
- Ground water sampling
- Surface water sampling
- Sediment sampling
e) Well, other receptor surveys.
f) Review field books, activity logs etc.
g) Review progress reports.
h) Review data management.
i) Hold progress status meetings.
j) Assess whether the data incrementally collected are
sufficient for all purposes (site characterization,
source definition, nature and extent of
contamination, fate and transport, treatability,
remedial alternatives (e.g. bedrock groundwater
remediation).
k)_ Based on available data, direct collection of
additional data (e.g. source contamination to
background, extent of plume to background).
26) Assure appropriate data provided to ATSDR, State, Trustees.
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27) Review and comment on site characterization summary. Assure
proper and accurate data presentation.
28) Update Administrative Record.
29) Assure adequate oversight activity documentation (cost
documentation).
30) Identify interim actions as necessary.
Perform or Oversee Risk Assessment
31) Secure qualified contractor.
32) Identify any highly controversial substances that warrant HQ
assistance.
33) Identify Federal and State Contaminant Specific ARAR.
34) If PRP will perform the risk assessment, meet to assure that PRP
understands the requirements.
35) Human health risk assessment/endangerment assessment.
a) Review contaminant identification/indicator
chemicals memorandum.
b) Review exposure assessment (exposure scenarios,
exposure assumptions, population at risk, fate and
transport model etc.).
c) Review toxicity assessment (sources; application).
d) Review human health risk characterization.
36) Environmental Evaluation
a) Review environmental evaluation plan; discuss with
trustees
b) Review environmental evaluation report, discuss
with trustees
37) Obtain/review ATSDR health assessment; State views.
38) Assure appropriate EPA management review.
39) Comment on/finalize risk assessment.
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a) Gather additional data as needed.
Remedial Investigation Report
40) Copy to State, trustees, ATSDR as appropriate.
41) Develop preliminary comments.
42) Assure appropriate EPA managerial review.
43) Final comments.
44) Review and modify/approve interim Rl report (possible additional work
may be identified in FS).
45) Update Administrative Record.
46) Fact sheets, public meetings as necessary.
Treatability Testing
47) Identify the need for treatability testing. If testing is done:
a) Obtain specialized support as necessary.
b) Discuss requirements with PRPs.
c) Review/modify/approve proposal on need for
literature search vs. testing.
d) Review PRPs1 work plan/SAP.
e) Review PRPs' report.
f) Require, if necessary, additional testing.
Development and Screening of Alternatives
48) Meet with PRPs to discuss remedial action objectives; alternative
development and screening; detailed analysis; SARA - compliant
remedies.
49) Review, modify, and possibly approve remedial action objectives
submitted by PRPs.
50) Review work/report by PRPs, identifying potential technologies for
areas of media, evaluation of process types.
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51) Review range of alternatives developed by PRPs; focus on effective
remedies, preference for treatment.
52) Advise State of alternatives.
53) Review the document submitted by PRPs on alternatives passing the
screen, including alternatives array summary with associated ARARs
and description of underlying work.
54) Confer with State.
55) Submit comments, assuring appropriate alternatives passed the
screen and proper identification of ARARs, particularly action-specific
ARARs. If PRPs continue to lean improperly toward no-action, non-
effective low-cost remedies, schedule a meeting. Consider
enforcement and EPA takeover.
56) Finalize approved identification of acceptable group of remedies that
should be considered in the detailed analysis,
57) Assure updated Administrative Record.
Detailed Analysis
58) Review the comparative analysis document prepared by PRPs (unless
EPA reserved this).
59) Assure that, to the extent possible, State, trustees views are known.
60) Meet with PRPs.
61) Provide comments, direction to PRPs for FS.
62) Assure updated Administrative Record.
Feasibility Study
63) Circulate PRP draft FS to State, trustees, intra-EPA groups.
64) Develop preliminary comments.
65) Assure internal EPA and management review; also discuss proposed
plan.
66) Finalize comments.
67) Assure development of an FS that supports proposed plan.
-31-
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68) Update Administrative Record,
69) Oversight/response cost billing.
70) Preparation for RD/RA negotiations.
-32-
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Appendix
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SELECTION OF REMEDY
I. DESCRIPTION OF ACTIVITY 1
Introduction 1
Overview. 1
Statutory Authority 1
Responsbles. 2
Evaluation Criteria for Comparing Alternatives 2
Threshold Criteria ....2
Primary Balancing Criteria 3
Modifying Criteria 4
ROD Delegation and Briefings 5
II. PROCEDURES AND INTERACTIONS 6
A. Review of RI/FS 6
B. Preparation of Proposed Plan 6
Format of Proposed Plan .6
Contents of Proposed Plan 6
C. State/Federal and Public Input on Preferred Alternative 8
D. Finalization of Proposed Plan 8
E Public Input on Remedial Alternatives 8
Public Notice ..................8
Public Meeting ................9
Public Comment Period .........9
Administrative Record 9
PRP Participation 9
F. Special Notice To PRPs 10
Required Notifications 10
G. Final Selection of Preferred Alternative 10
H. Prepare Draft ROD 10
Components of Record of Decision 11
Declaration 11
Decision Summary 11
Responsiveness Summary 12
Changes from the Proposed Plan to the ROD .12
Unanticipated Changes 12
L State/Federal Consultation on Selected Remedy 13
Concurrence 13
J. Briefing and Signature 13
K. Notice. 14
L Post-ROD Changes 14
III. PLANNING AND REPORTING REQUIREMENTS 15
A. Reporting Requirements 15
Submission of Documents .15
-------
Information Databases 15
Implications of Submissions 15
SCAP/SPMS 15
B. Planning Requirements ....16
Contractor Participation 16
IV. POTENTIAL PROBLEMS/RESOLUTIONS ..17
A. Inconsistent PRP Alternative 17
B. Extensive Public Comment 17
C. Disputes Over ROD .17
V. REFERENCES 18
Policy 18
Guidance 18
Manuals 18
Guides 19
Training 19
Contacts .....19
VI. ACTIVITY CHECKLIST .........20
APPENDIX A
APPENDIX B
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SELECTION OF REMEDY
Introduction
Overview
Statutory
Authority
I. DESCRIPTION OF ACTIVITY
This chapter provides a general discourse on the process used by Federal agencies to
select a final remedial action from among the options that undergo detailed analysis in
the RI/FS. See Exhibit VII-1 for a graphic representation of the elements that comprise
the remedy selection process. In addition, guides to developing proposed plans, developing
Superfund Records of Decisions and Superfund Land Disposal Restrictions, as well as the
index of the Compendium of CERCLA Response Selection Guidance Documents, are
included in the appendix to this chapter for easy reference. For more detailed information
on the remedy selection process, consult the National Oil and Hazardous Substance
Pollution Contingency Plan (NCP), "Interim Final Guidance on Preparing Superfund
Decision Documents" and other documents referenced at the end of chapter.
The Agency has established the remedy selection process to fulfill the mandates of
section 121 of CERCLA. Substantively, the remedy selection process involves the
following: 1) an objective assessment of alternative approaches for remediating
problems at sites with respect to nine evaluation criteria that encompass statutory
requirements, and 2) a risk management decision as to which option provides the most
appropriate solution for a site or site problem. Procedurally, the selection of a CERCLA
remedial action from among alternatives is a two-step process. First, the lead agency, in
conjunction with the support agency, reviews the analysis in the RI/FS and
Administrative Record to identify a preferred alternative that is presented to the public
in a proposed plan along with the supporting information and analysis, for review and
comment. Second, the lead agency reviews the public comments, consults with the
support agency in order to evaluate whether the preferred alternative is still the most
appropriate remedial action for the site or site problem, and makes a decision. EPA is
the ultimate decisionmaker in selecting a remedy under CERCLA.
Section 121 of CERCLA requires that the chosen remedy meet certain standards.
The lead agency must select a remedy that:
Is protective of human health and the environment
Attains legally Applicable or Relevant and Appropriate Requirements (ARARs),
or provides grounds for invoking a waiver of ARARs
Is cost-effective
Utilizes permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable
Addresses the preference for remedies that employ treatment that permanently
and significantly reduces the volume, toxicity, or mobility of the hazardous
substances, pollutants, and contaminants as a principal element.
-1-
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Responsibilities
Evaluation
Criteria for
Comparing
Alternatives
Section 121 of CERCLA requires that Superfund remedies be consistent with the
requirements of the National Contingency Plan (NCP). The proposed NCP specifies the
nine evaluation criteria used to compare remedial alternatives.1
CERCLA also establishes procedures for the remedy selection process. The remedy
selection process must include the opportunity for substantial and meaningful involvement
of State officials. The Agency must comply with public participation requirements by
allowing the public to comment and submit information on the remedy for inclusion in the
Administrative Record (see sections 113(k), 117, and 121 (f) of CERCLA). The Agency
must document its decision in an Administrative Record, and make the record accessible
to the public. EPA must notify PRPs, State personnel, and natural resource trustees
about negotiations for implementation of the remedy.
Federal and State agencies conduct remedy selection activities as a cooperative effort.
Section 121 (a) of CERCLA states that the President (EPA) shall select appropriate
remedial actions. EPA and the State agencies decide on a case-by-case basis which
agency will become the lead agency. In some States, an agreement between the
agencies, such as a Superfund Memorandum of Agreement (SMOA) or Cooperative
Agreement (CA), embodies this decision, (For more information on the EPA/State
partnership, see Chapter XIV, State Enforcement). In addition to designating itself or
another agency as the lead agency for a site, EPA generally delegates lead
responsibilities from Headquarters to the Regions. Regardless of whether the State is
designated the lead agency, EPA is always responsible for deciding the remedy and
signing the ROD.
In general, the remedy selection process is the sole responsibility of the agencies involved.
However, contractors and potentially responsible parties may participate in particular
aspects of the process.
EPA has structured a risk management decision-making process designed to satisfy the
numerous requirements of CERCLA. This process involves the assessment of
alternative hazardous waste management approaches and a comparison of these
approaches using nine evaluation criteria. A remedy is selected by balancing the trade-
offs between alternatives to identify the most appropriate protective solution which
meets (or waives) ARARs for a given site. The nine evaluation criteria are used to
develop the RI/FS detailed analysis, on which the remedy decision is based. The criteria
include:
Threshold Criteria. The two threshold criteria which must be satisfied in order for an
alternative to be eligible for selection are:
Overall protection of human health and the environment. Protectiveness is the
primary requirement that CERCLA remedial actions must meet. A remedy is
1 The 1985 NCP is effective until amended, except as modified by SARA. The proposed
revisions, 40 CFR Part 300 (December 1988) are not yet effective. However, they may serve
as guidance where SARA required changes to the program.
-2-
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Exhibit VIM
Selection of Remedy
Overview of Decision-Making Process
STAGE 1:
Selection of
Preferred Alternative i
STAGE 2:
Final Selection of •
Remedial Alternative
Lead Agency and Support Agency
reviews RI/FS
Lead Agency analyzes alternatives
using the Nine Criteria
Lead Agency Prepares Draft Proposed Plan
identifying Preferred Alternative
States, other Federal Agencies, and Program
Offices review Proposed Plan
Lead Agency issues final
Proposed Plan for Public Comment
Public provides input on Remedial Alternative
through formal public comment period, advanced
by community relations activities
Lead Agency reevaluates Alternatives on basis
of comments from public and any new information
Lead Agency prepares draft ROD
Lead agency gives Support Agency
opportunity to concur on selected remedy
Lead Agency finalizes and coordinates
signing of ROD for a remedy acceptable to EPA
Lead Agency provides Notice of
Final Remedial Action
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protective if it adequately eliminates, reduces, or controls all current and
potential risks posed through each pathway by the site. A site where, after the
remedy is implemented, hazardous substances remain without engineering or
institutional controls must allow for unrestricted use and unlimited exposure for
human and environmental receptors. For those sites where hazardous
substances remain such that unrestricted use and unlimited exposure is not
allowable, engineering controls, institutional controls, or some combination of the
two must be implemented to control exposure and thereby ensure reliable
protection over time. In addition, implementation of a remedy cannot result in
unacceptable short-term risks to, or cross-media impacts on, human health and
the environment.
Compliance with Applicable or Relevant and Appropriate Requirements
(ARARs). Compliance with ARARs is one of the statutory requirements for
remedy selection. Alternatives are developed and refined throughout the
CERCLA process to ensure either that they will meet all of their respective
ARARs or that there is good rationale for waiving an ARAR. During the detailed
analysis, information on Federal and State action-specific ARARs will be
assembled along with previously identified chemical-specific and location specific
ARARs. Alternatives will be refined to ensure compliance with these
requirements, or to begin to identify waivers that might be invoked.
Primary Balancing Criteria. The five primary balancing criteria used to weigh major
trade-offs among the different hazardous waste management strategies are:
Long-term effectiveness and permanence. This criterion reflects CERCLA's
emphasis on implementing remedies that will ensure protection of human health
and the environment into the future as well as in the near term. In evaluating
alternatives for the degree of long-term effectiveness and permanence they
afford, the analysis should focus on the residual risks that will remain at the site
after the completion of the remedial action. This analysis should include
consideration of the following: the degree of threat posed by the hazardous
substances remaining at the site; the adequacy of any controls (e.g. engineering
and institutional controls) used to manage the hazardous substances remaining
at the site; the reliability of those controls; and the potential impacts on human
health and the environment, should the remedy fail based on assumptions included
in the reasonable maximum exposure scenario. This evaluation criterion
incorporates the statutory requirements to take into account the following: The
uncertainties associated with land disposal; the goals, objectives, and
requirements of RCRA; the persistence, toxicity, mobility, and propensity to
bioaccumulate of the hazardous substances and their constituents; the long-term
potential for adverse health effects from human exposure; the potential for
future remedial action costs if the remedy were to fail; and the threats to the
environment associated with redisposal or containment of the hazardous
substances.
Reduction of toxicity, mobility or volume. This criterion addresses the statutory
preference for remedies that employ treatment as a principal element by
-3-
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ensuring that the relative performance of the different treatment alternatives in
reducing toxicity, mobility, or volume will be assessed. Specifically, the analysis
should examine the magnitude, significance, and irreversibility of reductions.
Short-term effectiveness. This criterion includes the short-term impacts of the
alternatives (i.e., impacts during implementation) on the neighboring community,
the workers, or the surrounding environment, including the potential threats to
human health and the environment associated with excavation, treatment, and
transportation of hazardous substances. The potential cross-media impacts of
the remedy and the time to achieve protection of human health and the
environment also should be analyzed.
Implementability. Implementability considerations include the technical and
administrative feasibility of the alternatives, and the availability of the goods
and services (e.g. treatment, storage, or disposal capacity) on which the viability
of the alternative depends. Implementability considerations often affect the
timing of various remedial alternatives (e.g., limitations on the season in which
the remedy can be implemented, the number and the complexity of materials-
handling steps that must be followed, the need to obtain permits for off-site
activities, and the need to secure technical services such as well drilling and
excavation).
Cost. Cost encompasses all construction and operation and maintenance costs
incurred over the life of the project. Net present value of these costs are
considered. EPA believes that the discount rate is an aspect of developing a
realistic accounting of the future costs of remedial alternatives and an accurate
comparison of the total costs, and the cost-effectiveness, of treatment and non-
treatment remedies.
Modifying Criteria. The two modifying criteria are taken into account after the above
criteria have been evaluated and generally are focused on after public comment is
received. They are:
State acceptance. This criterion, which is an ongoing concern throughout the
remedial process, reflects the statutory requirement to provide for substantial
and meaningful State involvement. To avoid problems at the time of the
proposed plan or ROD, it is preferable to communicate with the State throughout
the RI/FS. State comments may be addressed during the development of the
FS, as appropriate, although formal State comments usually will not be received
until after the State has reviewed the draft RI/FS and the draft proposed plan
prior to the public comment period. The proposed plan that is issued for public
comment along with the RI/FS report should indicate whether or not the State
has commented on or concurred with EPA's preferred alternative or that State
comments have not been received. The ROD should specifically address State
concurrence or nonconcurrence with the response action that is selected,
particularly noting State views on compliance or noncompliance with State
ARARs.
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Community acceptance. This criterion refers to the community's comments,
where community is broadly defined to include all interested parties, on the
remedial alternatives under consideration. These comments are taken into
account throughout the RI/FS process through the communications that occur as
the Community Relations Plan is implemented. Again, EPA can only preliminarily
assess community acceptance during the development of the FS, since formal
public comment will not be received until after the public comment period for the
proposed plan and the RI/FS is held. The detailed analysis, however, may
summarize preliminary comments on components of the alternatives received up
to that point.
Reference
Proposed NCP pages 51428-52429 (December 21,1988).
ROD Delegation The authority to sign the Record of Decision usually is delegated from EPA
and Briefings Headquarters to the Regions following a Regional request for delegation in the applicable
forum. Consultation with Headquarters continues to be required in certain circumstances.
The lead agency will conduct a pre-ROD briefing for Headquarters staff if the site
involves nationally significant or precedent-setting issues. Consultation with
Headquarters is also currently required for any site where the proposed remedy exceeds
$30 million or requires a Fund-balancing waiver. Additionally, a pre-ROD briefing for
Headquarters must be performed for all RODs which require Headquarters concurrence.
-5-
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A.
Review of
RI/FS
B.
Preparation
of Proposed
Plan
Format of
Proposed
Plan
Contents of
Proposed
Plan
II. PROCEDURES AND INTERACTIONS
This section discusses the steps in the decision-making process required to fulfill the
mandates of sections 113,117, and 121 of CERCLA.
The RI/FS provides the decision-maker with an assessment of the extent and nature of
the contamination at the site, an assessment of current and potential risk posed by the
site to human health and the environment, a description of alternatives, and comparison
of alternatives based on the nine criteria. In addition, the RI/FS identifies the
performance levels each alternative is expected to attain to ensure protection of human
health and the environment. The lead agency must confirm that there is sufficient
information to support the selection of a preferred alternative when reviewing the RI/FS
data, and should require further study if the information is insufficient.
EPA's RPM should assure that proper remedial action objectives are chosen, and the
proper alternatives pass the screening. Before completion of the final RI/FS report, EPA
should consult with the State in examining the findings of the comparative analysis. EPA
then makes a preliminary determination of the preferred alternative.
Section 117 of CERCLA requires the lead agency to issue a proposed plan that identifies
its preferred remedial alternative. The proposed plan highlights information about the
site, remedial alternatives evaluated in the RI/FS report, and the preferred alternative.
It also describes all opportunities for public input, and requests comments from the
community on each of the remedial options.
The lead agency may issue the plan in a fact sheet format. If, however, the plan
presents complicated remedial options or involves a site that has sparked public
controversy, the lead agency may consider issuing the plan in an expanded format. In
either case, the agency should write it in a style that is informative and readily
understandable by the public. It may be helpful to have the community relations
coordinator review the format of the plan before it is issued.
The proposed plan should address the following topics:
Statement of Document's Purpose
Describes functions of plan
Directs public to RI/FS
Solicits input on all alternatives.
Site Description
Gives physical description
Explains site history
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Identifies lead and support agencies.
Role and Scope of Operable Unit or Response Action
Summary of Site Risks
Identifies chemicals of concern
Identifies exposure scenarios
Summarizes current and potential site risks.
• Summary of Alternatives
Briefly describes alternatives evaluated in detail, including cost and
implementation time.
The Preferred Alternative and Evaluation of Alternatives
Identifies preferred alternative
Lists evaluation criteria
Profiles performance of preferred alternatives against evaluation
criteria, highlights trade-offs with respect to other options
Describes ARARs waivers
Indicates preliminary determination of compliance with statutory
requisites.
Community Involvement
Identifies locations, times, and dates for comment periods, meetings, and
access to Administrative Record and officials
States whether special notice was issued.
These topics are described in detail in OSWER Directive 9355.3-02, "Interim Final
Guidance on Preparing Superfund Decision Documents: The Proposed Plan and Record of
Decision" (July 1989).
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C. State/
Federal and
Public Input
on Preferred
Alternative
D. Finalization
of Proposed
Plan
£ PuMc Input
on Remedial
Alternatives
Following is a general discussion of the process for coordinating State/Federal and public
(including PRP) input on the remedial alternatives and preferred option described in the
proposed plan.
When EPA selects a preferred alternative at a PRP-lead site, an opportunity for review
and comment on all alternatives should be provided to States and other Federal agencies
prior to the release of the proposed plan for public comment. The RPM should also seek
substantial input from the State and State agencies. Early State involvement improves
the Superfund program's ability to identify and meet ARARs and address State issues
and facilitates concurrence on the selected remedy.
State-lead sites fall into two categories: 1) sites where EPA has provided funding and
has retained the right to select the remedy, and 2) sites where EPA is not involved.
Regarding the first category, in the event that the State is the lead, and EPA does not
concur on the selected remedy, EPA can assume the lead for the ROD and proceed
through the design stage. Such instances are not expected to occur often.
In the second category, the State should be reminded that EPA is not bound by the
remedy selection unless the Regional Administrator signs the ROD or a concurrence on it.
The State should send copies of the RI/FS report and draft proposed plan to appropriate
program offices. If the Regional Administrator may sign the ROD, the RPM should
assure consistency with CERCLA and the NCP, the sufficiency of the Administrative
Record, and technical backup for the RI/FS including QA/QC and treatability testing.
EPA reviews the State's written comments, summarizes them in the plan, and provides
a response. In evaluating the State's comments, EPA should consider State cost sharing
and ARARs. The response may include revision of the preferred alternative. If the site
is State-lead and EPA does not agree with the State's preferred remedy, EPA must
advise the State in writing that EPA is not bound by the State's decision.
Once the proposed plan is finalized, the lead agency must make the plan available to the
public and announce its availability. A notice must be placed in a local newspaper of
general circulation. In addition, the agency should notify the public of all opportunities and
resources for community input in order to prepare concerned citizens for an upcoming
public comment period.
Public Notice
The agency presents information to the general public on the proposed plan and upcoming
public comment period primarily by placing a public notice or advertisement in a local
newspaper. In addition, EPA guidance suggests announcing the availability of the RI/FS
and proposed plan by sending notices to all persons on the community relations mailing
list, including PRPs. The lead agency may also wish to send out fact sheets or letters to
persons on the list, or distribute copies of the proposed plan.
For detailed information, see OSWER Directive 9355.3-02, "Interim Final Guidance on
Preparing Superfund Decision Documents: The Proposed Plan and Record of Decision,"
(July, 1989) and OSWER Directive 9836.2 "CERCLA Mailing Lists" (January 1989).
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Public Meeting
Another source of public information is public meetings. Section 117(a)(2) of CERCLA
requires that the lead agency provide an opportunity for a public meeting near the site.
The meeting need not take the form of a public hearing. The agency should bear in mind
that no one meeting format is appropriate for all Superfund sites. The agency is required
to keep a transcript of public meetings concerning the RI/FS and proposed plan.
Public Comment Period
The lead agency solicits public opinion on a preferred alternative by holding a public
comment period. During the comment period, the public, including PRPs, may submit, in
the form of written statements or oral comments during a meeting, information for the
lead agency to consider in selecting a remedial alternative.
For a detailed discussion of community relations requirements, consult OSWER Interim
Directive 9230.0-3B, Community Relations in Superfund • A Handbook (October 1988).
Administra- At various times during the RI/FS and ROD process, public notices are issued that refer
live Record interested persons to the Administrative Record file for information so that they can
input into the process in an informed manner and evaluate the RI/FS report and proposed
plan. The Administrative Record, when completed, includes all documents that the
agency considered or relied on to select the remedial action. The record file will be
located at the Regional office and at a repository at or near the site to facilitate review.
Chapter XV, Records Management, contains more information on the Administrative
Record. In addition, Exhibit VII-2 identifies the documents that the agencies should place
in the Administrative Record file during the remedy selection process.
The lead agency compiles and maintains the Administrative Record file. Complete
documentation is essential to demonstrate that the agency considered all relevant
information and provided a contemporaneous explanation of its decision-making.
A detailed list of information that should be included in an Administrative Record file is
contained in OSWER Directive 9833.3A, "Interim Final Guidance on Administrative
Records for Selection of CERCLA Response Actions" (March 1, 1989).
PRP The Agency, and not a PRP, must compile the Administrative Record; however, in some
Participation circumstances, PRPs may assist in maintaining the Administrative Record, and in
conducting community relations activities. With respect to the Administrative Record,
PRPs may house the record file at or near the site. The Agency must, however, decide
which documents to include in the record, which documents to transmit to the PRPs for
inclusion in the record, and must maintain the record index. PRP activities with respect
to community relations activities may include assisting at public meetings and providing
fact sheets, subject to the lead agency's approval and oversight. The Community
Relations Plan should reflect the fact that PRPs are helping to conduct public information
activities.
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F. Spec/a/
Notice To
PRPs
Required
Notifications
G. Final
Selection of
Preferred
Alternative
H
Prepare
Draft ROD
At a Federal-lead site, EPA may negotiate with the PRPs over implementation of the
RD/RA, as appropriate. At a State-lead site, EPA is not required to conduct
negotiations. However, if Fund monies will be requested by the State, negotiations will
precede the obligation of funds unless there is good reason for not negotiating. In
accordance with CERCLA, EPA may, at its discretion, send a special notice to the
PRPs. The notice letter triggers a 60-day moratorium on EPA-conducted remedial action
activities. If the PRPs submit a good faith proposal for conducting the work during the
60-day time frame, the moratorium continues for another 60 days while EPA evaluates
the proposal and finalizes negotiations. It is important to prepare for negotiations before
the ROD is signed. See Chapter VIII, RD/RA Negotiations/ Settlement, for a detailed
description of the appropriate circumstances and procedures for conducting RD/RA
negotiations.
In addition to notifying the PRPs that the moratorium has been invoked, the RPM must
notify other parties as well. The RPM shall notify State representatives and State or
Federal natural resources trustees. This notification should include a copy of the special
notice letter and a list of the parties receiving it. The RPM should submit at this time the
notice letter and list to the Administrative Record coordinator for inclusion in the
Administrative Record.
The final selection of a remedy is reflected in the draft Record of Decision (ROD).
Before signing the ROD, however, EPA re-evaluates its chosen alternative as follows.
At the end of the public comment period, EPA re-evaluates its preferred alternative on
the basis of comments and new information received from the public, including PRPs, and
other sources. As a result of this information, the Agency may elect to:
Adopt the preferred remedy as originally proposed
Modify a component of the preferred remedy, or
• Select a different remedy.
If the Agency modifies its original preferred alternative, it must examine the extent of
the change. Some changes must be discussed in the ROD, and some significant changes
require additional opportunity for public comment.
For more detailed information, consult OSWER Draft Directive 9355.3-02, "Interim Final
Guidance on Preparing Superfund Decision Documents (July 1989).
After Agency re-evaluation of the chosen alternative, the Agency prepares a draft
ROD. The ROD serves as the official Agency decision document on the selection of a
remedy that makes all determinations and findings required by statute and regulation.
-10-
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Exhibit Vll-2(1)
Contents of the Administrative Record
The record file for a response action will typically, but not in all cases, include the documents listed
below. Documents that are relevant only to remedial or removal response actions are indicated in
brackets.
Factual Information/Data
Preliminary assessment report
Site investigation report
Approved RI/FS workplan [Remedial]
Amendments to final RI/FS workplan [Remedial]
Sampling and analysis plan
Project plan or program plan (QAPP) [Remedial]
• Validated sampling and analysis data
• Chain of custody forms
Inspection reports
Summary of remedial action alternatives (used in conjunction with early special notice
letters) [Remedial]
Data summary sheets
Technical studies
• Endangerment assessment/risk assessment
• RI/FS [Remedial]
Engineering evaluation/Cost analysis (EE/CA) [Removal]
Factual information submitted by the public (including PRPs)
Policy and Guidance
Memoranda on policy decisions (site-specific, issue-specific)
Guidance documents
Technical literature
-------
Exhibit VII-2(2)
Contents of the Administrative Record
Public Participation
Community relations plan
Proposed plan [Remedial]
Public notices
Documentation of public meetings
Public comments
Transcript of public meeting on RI/FS and proposed plan [Remedial]
Responses to significant comments
Responses to State and other Federal agency comments
Other Party Information
Documentation of State involvement
ATSDR health assessment
Natural Resources Trustees finding of fact and final reports
Enforcement Documents (Only if considered or relied on in selecting the response action)
Administrative orders
Consent decrees
Affidavits
Notice letters to PRPs containing relevant factual information not included elsewhere
in the record file
Responses to notice letters
104(e) information requests
Responses to 104(e) information requests
Decision Documents
ROD, including responsiveness summary [Remedial]
Amended ROD [Remedial]
Explanation of Significant Differences [Remedial]
Action Memorandum [Removal]
Amended Action Memorandum [Removal]
-------
Components
of Record of
Decision
RODs consist of three basic components,
A Declaration, which functions as an abstract for the key information contained
in the ROD and is the section of the ROD signed by the EPA Regional
Administrator or Assistant Administrator
A Decision Summary, which provides an overview of the site characteristics,
the alternatives evaluated, and the analysis of each option, and explains how
the selected remedy meets the statutory requirements
A Responsiveness Summary, which provides an overview and analysis of
information and comments received on the proposed plan, RI/FS report, and
other information in the Administrative Record.
The following discussion presents highlights of the process for compiling a ROD and the
elements of each section. For a complete discussion of RODs, consult OSWER Directive
9355.3-02 "Interim Final Guidance on Preparing Superfund Decision Documents (July
1989).
Declaration
The Declaration is the section of the ROD signed by the EPA Regional Administrator or
AA, OSWER. It provides a brief description of the selected remedy and the scope and
role of the response action. The Declaration should summarize information supporting the
determination that the selected remedy meets all statutory requirements and
preferences, or provide an explanation as to why it does not. The determination of
imminent and substantial endangerment should also be included in the Declaration, unless
the ROD is for a No Action decision.
Decision Summary
The Decision Summary should provide an overview of the site-specific factors and
analysis conducted that led to selection of the remedy. This section should include:
The Site Name, Location and Description
Site History and Enforcement Activities
Highlights of Community Participation
Scope and Role of the Operable Unit or Response Action
Site Characteristics
Summary of Site Risks
Description of Alternatives
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Summary of the Comparative Analysis of Alternatives
The Selected Remedy
Statutory Determinations
Documentation of Significant Changes.
Responsiveness Summary
The final component of the ROD is the Responsiveness Summary, which serves two
roles. It provides information on community acceptance of the preferred remedy,
which is considered by Agency decision-makers in reaching a decision on a remedy. It
also comprises a freestanding document explaining how the Agency solicited and
responded to community concerns, written after the Agency has chosen a remedy.
The Responsiveness Summary should be both concise and complete.
It is important that each significant comment received by EPA during the public
comment period get a thorough examination and response. Agency policy discussed
in response to comments must be reviewed by management before it is incorporated
into a final responsiveness summary.
Changes from the Significant changes from the preferred alternative must be documented and explained in
Proposed Plan to a Significant Changes section of the Decision Summary of the ROD. Non-significant
the ROD changes should be documented in the Description of Alternatives section of the ROD
Decision Summary. Significant changes may relate to the scope, performance or cost of
the remedy as follows:
Scope, including changes that address a substantially greater volume of
waste, a new environmental pathway or media, or that encompass a
substantially greater physical area of the site.
Performance, involving changes in treatment technologies or processes that
alter the long-term effectiveness of the remedy, have different short-term
effects, or provide a different level of performance.
Cost, including changes that significantly alter the capital or operation and
maintenance cost estimates for the selected remedy.
Unanticipated Changes
If a change could not reasonably have been anticipated by the public, EPA must provide
additional time for public comment. A change that could not reasonably have been
anticipated includes selection of a new alternative not previously analyzed.
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State/
Federal
Consultation
on Selected
Remedy
Concurrence
d Brief ing and
Signature
Once the draft ROD is complete, the lead and support agencies will brief their own
management on the ROD. The lead agency will submit the ROD to the support agency,
which should be allowed at least ten working days to examine the ROD, unless the CA or
SMOA specifies a different time frame. Both agencies will submit it for review to
support program offices. Each agency determines its own timeframe for interagency
review.
In particular, lead and support agencies should get the input of Regional and State legal
counsels. An area of potential dispute with the State is what requirements are relevant
and appropriate. It should be stressed to the State that relevant and appropriate
determinations should make sense in light of the circumstances of the release at the site.
Headquarters staff will review all RODs to be signed by the AA, OSWER. They will
consult with the Region on RODs involving nationally significant or precedent-setting
issues. Headquarters staff also will consult with the Region on sites where the proposed
remedy exceeds $30 million or uses a Fund-balancing waiver.
Based on comments received, the lead agency may modify the selected remedy and
revise the ROD.
The agency that takes the lead responsibility for preparing the ROD actively seeks
concurrence from the support agency. State-lead remedial actions conducted under
federal authority require EPA signature. State-lead remedial actions at an NPL site
that are conducted under State authority and with State funding may, but need not,
include an EPA concurrence. Federal-lead remedial actions at an NPL site that are
conducted under EPA authority may, but need not, include a State concurrence.
Concurrences become part of the ROD Declaration.
While EPA may execute a ROD with a remedy that the State will not agree to, EPA
should anticipate the consequences. First, it is unlikely that a State will pay for part of
the remedial action and operation and maintenance if it disagrees with the remedy.
Second, State non-concurrence may adversely affect settlement negotiations and a
State may oppose entry of a consent decree premised upon a remedy with which it
disagrees. Third, the State may testify on behalf of the PRPs in a section 106 judicial
action. Nonetheless, in some instances EPA may sign a ROD over State objections.
Refer to the Potential Problems/Resolutions section of this chapter for a discussion of
possible approaches to be considered if the State and Federal agencies prefer
inconsistent alternatives and have difficulty reaching concurrence.
When the State completes a ROD, preferably the State Director and the EPA Regional
Administrator should sign it. Where there are disagreements and EPA provided funding
for the RI/FS, EPA may assume the lead on a ROD and sign it without State
agreement. No State signature is required on a Federal-lead ROD, although the State
has a responsibility to provide the lead agency with a written declaration of concurrence.
All RODs conducted under Federal authority will be signed by the EPA Regional
Administrator or the Assistant Administrator of OSWER, as specified in the delegation
report.
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K. Notice Pursuant to section 117 of CERCLA, the lead agency will publish notice of the final
remedial action plan. The notice will be published in a major local newspaper of general
circulation. CERCLA also requires that the agency make the ROD available to the
public before any remedial action begins. The final version of the ROD, including the
Responsiveness Summary, should be included in the Administrative Record.
L Post-ROD As a result of enforcement agreements or other developments during RD/RA, EPA may
Changes receive new information that leads it to alter the remedy specified in the ROD. When this
occurs, EPA must evaluate the contemplated change to determine the procedures it must
follow. Three categories of post-ROD changes exist:
Non-significant differences: minor changes that do not significantly affect the
overall scope, performance, or cost of the alternative, such as minor technical or
engineering changes.
Significant differences to a component of the remedy: changes that do
significantly affect the overall scope, performance, or cost of the alternative,
but do not alter the overall waste management approach, such as changes to
ARARs, timing, cost, or implementability.
Fundamental changes to the overall remedy: changes that alter the overall
waste management approach, such as substitution of a containment remedy for
a treatment remedy.
Each category of change requires documentation or an opportunity for public comment.
For further information on post-ROD changes, consult OSWER Draft Directive 9355.3-02,
"Interim Final Guidance on Preparing Superfund Decision Documents" (July 1989).
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III. PLANNING AND REPORTING REQUIREMENTS
A. Reporting This section of the chapter discusses RPM planning and reporting requirements for the
Requirements selection of remedy phase of the Superfund program.
Submission In addition to referring documents to EPA program offices for review, the lead agency
of must submit them to Headquarters for purposes of receiving credit for their
Documents accomplishments. The lead agency must also send to Headquarters a hard copy of the
ROD and a copy of the ROD text on disk in order to receive credit for an initial,
subsequent, or final RI/FS completion.
Information The lead agency also has responsibility for enabling EPA to track accomplishments at
Databases the site, such as submission of the draft Feasibility Study to the public. The lead agency
meets this responsibility by providing information on selection of remedy activities to
EPA databases. The RPM is responsible for ensuring that accurate information on ROD
start and completion dates goes into CERCLIS.
Implications The information supplied by the lead agency about RI/FS completion/submission of the
of ROD has many important implications. The program planning and budgeting processes
Submissions use this information. The planning processes for RD/RA negotiations, design funding, and
section 106 injunctive cases also rely on this information. The lead agency must make
every effort to ensure the accuracy of the date and to achieve ROD completion by that
time.
SCA PI The Selection of Remedy process is tracked through CERCLIS. Exhibit VII-3
SPMS summarizes SCAP/SPMS targets relevant to this process. Exhibit VII-4 indicates the
appropriate format for completing a CERCLIS Site Information Form (SIF) for a ROD.
The RPMs should complete the SIF using the example outline of fields and values.
A. Operable Unit (01, record operable unit number)
B. Event (RO = ROD)
C. Lead (F = EPA, Fund-financed; FE = PRP/Federal Enforcement; PS = PRP
under State order with EPA oversight; SR = PRP response under State order
and no EPA oversight; SN = State, no fund money)
D. Plan completion date (FYQ)
E Actual completion date (MM/DD/YY, date signed by RA)
F. SPMS Target (All RODs have a code of P = Primary)
G. SCAP Note (Indicates what the ROD is addressing)
K First complete (A = first and only; B = first of several; C = subsequent, but not
last of several; D = last of several)
I Financial Requirements (There are no financial requirements for a ROD)
The date the ROD is signed by the Regional Administrator or the Assistant
Administrator for OSWER is the completion date.
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S. Planning The case budget should include an estimate of dollars needed for implementation of a
Requirements Community Relations Plan. The RPM must also work closely with the Office of Regional
Counsel and DOJ to determine any budgeting needs to carry out case management
strategy. This may include budgeting for a 106/107 action, or specialized RD/RA
negotiation tasks. Other budgeting requirements might involve a Federal Enforcement
Remedial Design or a Fund-financed RD/RA. For further case budget information, refer
to Chapter XVI, Case Budget/Contracts.
Contractor As provided in Chapter VI, RI/FS Implementation, EPA may reserve parts of the RI/FS
Participation for its own conduct or may perform parts when PRPs do not do so satisfactorily.
Contractors may assist in these endeavors. Contractors also may assist in providing
community relations activities, with the approval of the lead agency. Contractors may
assist further by drafting straightforward portions of the ROD package (i.e., site history,
description of contamination) and providing technical assistance in preparation of the
Responsiveness Summary, although the accuracy of these documents remains the
responsibility of the lead agency. Finally, contractors may assist the lead agency in
providing meetings and briefings for agency management.
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Exhibit VII-3
SCPA/SPMS Targets for Selection of Remedy
ACTIVITIES
RI/FS Completions (ROD) (S/C-3)
First RI/FS Completions (ROD)
Subsequent RI/FS Completion (ROD)
Final RI/FS Completion (ROD)
SPMS
TARGET
X*
SCAP
TARGET
X
X
X
QUARTERLY
TARGET
X
X
X
ANNUAL
TARGET
X
X
X
The SPMS target combines first, subsequent and final as a single target.
-------
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A.
Inconsistent
PRP
Alternative
fi Extensive
Public
Comment
C. Disputes
Over ROD
IV. POTENTIAL PROBLEMS/RESOLUTIONS
This section discusses problems commonly encountered by lead agencies during the
selection of remedy process. It suggests methods that other agency personnel have
found helpful in solving these problems.
When PRPs conduct the RI/FS, their FS should not recommend a remedy. The possibility
exists that the FS discussions will favor a different cleanup remedy from the one the
Agency feels is appropriate. For example, the PRPs may favor a less expensive option
than what the Agency finds appropriate. The best means of avoiding this problem is
prevention; the lead agency should provide effective oversight of the RI/FS process. See
OSWER Directive 9835.1 a "Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility Studies" (October 1988). Despite
these precautions, the lead agency may have to supplement the RI/FS to support its
choice. The lead agency must ensure that data that supports the selected remedy
exists in the Administrative Record.
Some preferred alternatives spark public opposition. If the lead agency proposes a
preferred alternative with which the public disagrees, the public may provide a sizeable
number of comments during the public comment period. Not only would this situation
provoke unwanted controversy, it may also affect the timing of the selection of remedy
process. The lead agency would need a substantial amount of time to respond to the
comments, which might throw off its schedule for completion of the ROD. The agency
should anticipate this situation and try planning community relations activities so as to
receive input from many citizens at an early date, thus getting conflicts out in the open
quickly and resolving issues before it will result in delay. In addition, the lead agency must
allow adequate time for responding to public comments when scheduling financial
commitments.
If the support agency does not concur on the remedy, the lead agency may choose not to
proceed with the ROD. At a non-enforcement Federal-lead site, the ability to proceed
with the RA is contingent upon the availability of the 10 percent (or 50 percent in the
case of State-owned sites) State matching funds. The RD/RA may proceed at a PRP
lead-site without State concurrence under a unilateral administrative order or consent
decree. At a State-lead site, the State may proceed with a State-funded RD/RA
without EPA concurrence. However, since EPA must certify that the remedial action
was performed in accordance with the NCP in order to delete it from the NPL, the State
is likely to have difficulty getting this certification if EPA did not concur on the ROD.
Reaching consensus on the remedial action at ROD signature generally precludes these
unfortunate courses of action. However, there will be isolated instances in which one of
these approaches is appropriate.
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V. REFERENCES
Policy National Oil and Hazardous Substance Pollution Contingency Plan, Proposed Rule (40 FR
51394) (December 21,1988).
Guidance OSWER Directive 9335.3-01, "Guidance for Conducting Remedial Investigations and
Feasibility Studies" (October 1988).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing Superfund Decision
Documents" (July 1989).
OSWER Directive 9833.3A, "Interim Guidance on Administrative Records for Selection of
CERCLA Response Actions" (March 1,1989).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OSWER Directive 9835.1 a, "Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility Studies" (October 1988).
OSWER Directive 9355.3-06, "RI/FS Improvements: Phase II Streamlining
Recommendations" (January 1989).
OSWER Directive 9836.2, "Community Relations Mailing List" (February 6,1989).
OSWER Directive 9347.1-02, Draft "Policy for Superfund Compliance with the RCRA
Land Disposal Restrictions" (October 13,1988).
Manuals OSWER Directive 9200.3-01 B, Superfund Comprehensive Accomplishments Plan (SCAP^
Manual (Annual).
OSWER Directive, 9230.0-3B, Community Relations in Superfund - A Handbook (October
1988).
OSWER Directive 9355.1 -1, Superfund Federal-Lead Remedial Project Management
Handbook (December 1986).
OSWER Directive 9234.1-01. CERCLA Compliance with Other Laws Manual (August
1988).
CERCLA Administrative Records: Compendium of Frequently Used Guidance
Documents in Selecting Response Actions. 32 volumes (May 1989) [index is included in
appendix B to this chapter].
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Guides "A Guide to Developing Superfund Proposed Plans" (July 1988).
"A Guide to Developing Superfund Records of Decision" (July 1988).
"Superfund Land Disposal Restriction Guides" (July 1989).
Training EPA's Office of Emergency and Remedial Response
periodically conducts training for Regional personnel on the RI/FS process, including
selection of remedy.
For information, contact FTS 382-4632.
Contacts Selection of Remedy
Contact Office of Emergency and Remedial Response, Hazardous Site Control Division,
Site Policy & Guidance Branch, Remedial Analysis, at FTS 382-2339.
Development of ROD
Contact Office of Waste Programs Enforcement, CERCLA Enforcement Division,
Compliance Branch, Enforcement Section, at FTS 382-4836.
State Concurrence
Contact Office of Waste Programs Enforcement, CERCLA Enforcement Division,
Guidance and Oversight Branch, Guidance Section, at FTS 382-4826.
Land Disposal Restrictions
Contact Office of Waste Programs Enforcement, CERCLA Enforcement Division,
Compliance Branch, at FTS 382-4819.
Also:
Office of Waste Programs Enforcement, CERCLA Enforcement Division, Guidance and
Oversight Branch, at FTS 475-6770.
Office of Emergency and Remedial Response, Hazardous Site Control Division, Remedial
Planning and Response Branch, at FTS 382-4640.
Office of Emergency and Remedial Response, Hazardous Site Control Division, Site
Policy and Guidance Branch, at FTS 382-2339.
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VI. ACTIVITY CHECKLIST
The following checklist is not intended to present an exhaustive set of procedures. RPMs
should exercise their professional discretion when deciding what procedures are
appropriate for a particular site.
Selection of Preferred Alternative
1) Review RI/FS report. Confirm that there is sufficient information to
support the selection of a preferred alternative. Require further
study if the information is insufficient.
2) Make a preliminary determination on a preferred alternative.
3) Produce draft version of proposed plan that identifies preferred
remedial alternative.
4) Review and comment on all alternatives by States and other
Federal agencies for RP-lead sites.
5) Send draft RI/FS report and draft proposed plan to appropriate
program offices.
6)_ Review State comments, summarize them in proposed plan and
draft Agency response.
7)___ Finalize proposed plan by lead Agency addressing support agency
and other program office comments as appropriate.
8). Submit RI/FS, proposed plan, comments, and responses to
Administrative Record, along with any other information used in
reaching decision.
9)_ Publish newspaper notice of availability of proposed plan and RI/FS
and other opportunities and resources for community input.
10) Notify persons on mailing list that proposed plan and RI/FS are
complete.
11)_ Conduct public meeting upon request.
12)_____ Conduct community relations activities.
13) Conduct public comment period.
Preparation for RD/RA Negotiations (see Chapter VIII, RD/RA
Negotiations/Settlement)
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Final Selection of Remedial Alternative
14) Re-evaluate preferred alternative on basis of comments and new
information received from the public including PRPs and other sources.
15) Prepare draft version of ROD Declaration and Decision Summary.
16) Prepare Summary and Response to Comments for Responsiveness
Summary.
17) Conduct public comment period on any significant changes which were
not logical outgrowths of the earlier remedial alternatives.
18) Finalize ROD Decision Summary.
19) Complete Responsiveness Summary.
20) Brief lead agency management on ROD.
21) Submit ROD to program offices and support agency, which will brief its
management on the ROD.
22) Receive input from Regional counsel.
23) Receive concurrence from support agency on the selected remedy.
24) Brief agency decision-makers and present ROD for signatures.
25) Publish notice and make ROD available to public through Administrative
Record.
26) Provide information on ROD start and completion for entering into
CERCLIS.
27) Send copy of ROD to Headquarters.
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Appendix A
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A Guide to Developing
Superfund Proposed Plans
SEPA
July 1988
CERCLA section 117(a) requires preparation of Proposed Plans for site remediation that are available to the public for comment. The purpose
of a Proposed Plan is to highlight key aspects of the RI/FS report, provide a brief analysis of remedial alternatives under consideration, identify
the preferred alternative, and provide members of the public with information on how they can participate in the remedy selection process. A
notice and brief analysis of the Proposed Plan is published in a major local newspaper of general circulation. In addition, the Proposed Plan.
RI/FS report, and the other contents of the administrative record typically are available at an information repository near the site.
This guide outlines the major components of the Proposed Plan and suggests effective ways in which the various sections can be presented.
EPA recommends issuing Proposed Plans in a fact sheet format. For some highly complex sites or remedies, a more lengthy Plan may be
prepared separate from the RI/FS report In all cases. Proposed Plans should be written in a style that makes the material easy for the public to
understand. The point should always be emphasized that the preferred alternative is a preliminary determination and that the Agency is eager
to receive comments on all of the alternatives.
Detailed guidance on the preparation of the Proposed Plan is available in chapters 2 and 3 of the draft revised ROD guidance document
(OSWER Directive 9355.3 - 02).
EPA Announces Proposed Plan.
The Proposed Plan should begin with a statement of the
document's purpose. This introduction should indicate that the
Plan:
a Fulfills the requirements of CERCLA section 117(a);
a Describes the remedial alternatives analyzed for the site or
operable unit;
- Identifies the preliminary decision on a preferred alternative
and explains the rationale for the preference;
a Highlights key information in the RI/FS report and
administrative record, to which the reader is referred for
further details; and
- Solicits community involvement in selection of a remedy.
Site Description.
Provide a brief description of the site, including:
o The site name and location;
- The history of site activities that led to the problems;
~ The site area or media to be addressed; and
a The lead and support agencies in site cleanup.
Figure 1 is an example of a site map that could be included.
Role and Scope of Operable Unit
or Response Action.
Describe the scope of this action and its role within the overall site
cleanup strategy.
Summary of Alternatives.
Describe briefly each of the alternatives evaluated in the detailed
analysis of the FS. Highlight:
a Treatment components.
a Engineering controls (noting the type of containment
controls); and
3 Institutional controls.
Quantities of waste and implementation requirements related to
each component should be noted as well as the estimated
construction and operation and maintenance costs and the
estimated implementation time of each alternative. Emphasize
that these are estimates. An example is presented in Highlight 1.
Figure /
EIO Industrial Site «nd Surroundlnp
V77* So» Contamination
D Private Waft*
- S/ta Boundary
^ Municipal Wa«
• NOT TO SCALE
Highlight 1: Summary of an Alternative
Excavation, on-site incineration of contaminated soils, and
solidification and off-site disposal of residual metals and ash.
Estimated Construction Cost: $42,463,300
Estimated Annual O&M Costs: $26.200
Estimated Implementation Timeframe: 30 Months
to Completion
Under this alternative, a mobile incinerator would be brought
to the site, and 28,000 cubic yards of contaminated soils would
be destroyed on-site. Waste gases and water from this process
would be collected and treated in a Subtitle C treatment facil-
ity; residual metals and ash would be solidified and disposed
off-site in- a Subtitle C disposal facility.
-------
The Preferred Alternative
and Evaluation of Alternatives.
^ Identify the preferred alternative, emphasizing that the
selection of this alternative is preliminary and could change as
a result of public comments and other new information.
Sample text is presented in Highlight 2.
Highlight 2: Stating the Preferred
Alternative
The preferred alternative is alternative number 9. Alter-
native 9 includes excavation, on-site incineration of con-
taminated soils, solidification, and off-site disposal of re-
sidual metals and ash. Based on new information orpub-
lic comments. EPA, in consultation with the State of
Tennessee, may modify the preferred alternative or se-
lect another response action presented in this Plan and
the RI/FS Report. The public, therefore, is encouraged
to review and comment on all of the alternatives identi-
fied in this Proposed Plan. The RI/FS Report should be
consulted for more information on these alternatives.
Introduce the nine evaluation criteria against which the
alternatives are evaluated. The nine criteria are summarized
below:
Overall protection of human health and the
environment addresses whether or not a remedy provides
adequate protection and describes how risks posed through
each pathway are eliminated, reduced or controlled through
treatment, engineering controls, or institutional controls.
Compliance with ARARs addresses whether or not a remedy
will meet all of the applicable or relevant and appropriate
requirements of other Federal and State environmental
statutes and/or provides grounds for invoking a waiver.
Long-term effectiveness and permanence refers to the ability
of a remedy to maintain reliable protection of human health
and the environment over time once cleanup goals have been
met.
Reduction of toxicity, mobility, or volume is the anticipated
performance of the treatment technologies a remedy may
employ.
Short-term effectiveness addresses the period of time needed
to achieve protection, and any adverse impacts on human
health and the environment that may be posed during the
construction and implementation period until cleanup goals
are achieved.
Implementability is the technical and administrative
feasibility of a remedy, including the availability of materials
and services needed to implement a particular option.
Cost includes estimated capital and operation and
maintenance costs, and net present worth costs.
State Acceptance indicates whether, based on its review of the
RI/FS and Proposed Plan, the State concurs in, opposes, or
has no comment on the preferred alternative at the present
time.
Community Acceptance will be assessed in the Record of
Decision following a review of the public comments received
on the RI/FS report and the Proposed Plan.
Summarize the performance of the preferred alternative
against the nine criteria, explaining how it compares to the
other alternatives. This describes the basis for the preliminary
preference.
Highlight 3: Presenting the Evaluation of
Alternatives
Short-term effectiveness.
Alternative number 9 uses a treatment process and an on-
site landfill that contains the contaminated soils and re-
duces the possibility of direct human contact with contami-
nants more quickly than all of the other alternatives except
Alternative number 7. Under the preferred alternative,
once the volatile organics have been collected in canisters,
there is some minor short-term nsk of exposure to the
community during transportation of the canisters to a dis-
posal site.
Because the capacity of on-site and off-site incinerators is
limited, under Alternatives number 10 and 11 contami-
nated soils would be stockpiled for up to six years. Under
these two alternatives, the risks of direct contact with stock-
piled contaminated soils would be increased until incinera-
tion has been completed. In addition, there are some risks
of exposure to air emissions from the incinerators.
Present the lead agency's preliminary determination that the
preferred alternative provides the best balance of trade-offs
with respect to the nine criteria. If selected, the preferred
alternative is anticipated to meet the following statutory
requirements to:
- Protect human health and the environment;
- Attain ARARs (except when a waiver is invoked);
- Be cost-effective;
- Utilize permanent solutions and alternative treatment
(or resource recovery) technologies to the maximum
extent practicable; and
Highlight 4: Summarizing the Statutory
Findings
In summary, at this time the preferred alternative is be-
lieved to provide the best balance of trade-offs among al-
ternatives with respect to the criteria used to evaluate
remedies. Based on the information available at this time,
therefore, EPA and the State of Tennessee believe the
preferred alternative would be protective, would attain
ARARs, would be cost-effective, and would utilize per-
manent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent
practicable.
Community Involvement.
The Proposed Plan is a public participation decision document. It
should include information that helps people determine how they
can be involved. To this end, the Plan should:
o Provide notice of the dates of the public comment period;
a Note the date. time, and location of public meetmg(s) (or offer
to hold one);
a Identify lead and support agency contact people;
3 State whether a special notice has been issued to the PRPs (if
applicable); and
a List the location of the administrative records and
information repositories.
- 2 -
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A Guide to Developing
Superfund Records of Decision
£ EPA
July 1988
The Record of Decision (ROD) is issued by EPA as the final remedial action plan for a site or operable unit. The ROD summarizes the
problems posed by a site, the alternative ways that were considered for addressing those problems, and the comparative analysis of those
alternatives against nine evaluation criteria. The ROD then presents the selected remedy and provides the rationale for that selection.
specifically explaining how the remedy satisfies the requirements of CERCLA section 121(b).
This guide provides ROD preparers with a quick reference to the essential ROD components. The information to be included in each of the
three major sections of a ROD is summarized below. Close attention should be given to the sections in which alternatives are described, risk
information is presented, the comparative analysis against the nine evaluation criteria is summarized, and in which the statutory
determinations are made. Additional information on ROD preparation is provided in chapters 6 and 7 of the draft ROD guidance (OSWER
Directive 9355.3-02).
THE DECLARATION
The Declaration is a formal statement, signed by the RA or AA, identifying the selected remedy and indicating that the selection was carried
out in accordance with the statutory and regulatory requirements of the Superfund program. The State Director may also sign the Declaration.
s approximately two pages long and should inc'
if appropriate. The Declaration should be ap
, include the information provided in Highlight 1.
Highlight 1: Outline and Sample Language for the Declaration of the Record of Decision
Site Name and Location
Statement of Basis and Purpose
"This decision document presents the selected remedial
action for the [site] , in [location] , developed in
accordance with "CERCLA, as amended by SARA, and,
to the extent practicable, the National Contingency Plan.
This decision is based on the administrative record for
this site. The attached index identifies the items that
comprise the administrative record upon which the selec-
tion of the remedial action is based.
The State/Commonwealth of
has concurred in the selected remedy.
Description of the Selected Remedy
a Describe the role of this operable unit within the overall
site strategy (does it address the principal threats posed by
the site?)
a Describe the major components of the selected remedy in
bulleted fashion.
Declaration
a When the selected remedy satisfies the statutory prefer-
ence for treatment as a principal element, either total treat-
ment or a combination of containment and treatment of
the principal threat(s) at the site, the Declaration should
state:
"The selected remedy is protective of human health and
the environment, attains Federal and State require-
ments that are applicable or relevant and appropriate
for this remedial action [or "a waiver can be justified for
whatever Federal and State applicable or relevant and
appropriate requirement that will not be met"], and is
cost-effective. This remedy satisfies the statutory pref-
erence for remedies that employ treatment that reduces
toxicity, mobility, or volume as a principal element and
utilizes permanent solutions and alternative treatment
(or resource recovery) technologies to the maximum ex-
tent practicable."
(or)
When a remedy involving little or no treatment is selected
(treatment is not utilized to address the principal threat),
CERCLA, as amended by SARA, requires a statement ex-
plaining why a remedial action involving such reductions was
not selected. The Declaration should state:
"The selected remedy is protective of human health and the
environment, attains Federal and State requirements that
are applicable or relevant and appropriate to the remedial
action [or "a waiver can be justified for whatever Federal
and State applicable or relevant and appropriate require-
ment that will not be met"l, and is cost-effective. This rem-
edy utilizes permanent solutions and alternative treatment
(or resource recovery) technologies to the maximum extent
practicable for this site. Because treatment of the principal
threats of the site was not found to be practicable [or "within
the limited scope of this action"), however, this remedy does
not satisfy the statutory preference for treatment as a princi-
pal element of the remedy."
If the remedy will leave hazardous substances on-site above
health-based levels, the Declaration should include the follow-
ing:
"Because this remedy will result in hazardous substances re-
maining on-site above health-based levels, a review will be
conducted within five years after commencement of reme-
dial action to ensure that the remedy continues to provide
adequate protection of human health and the environ-
ment."
(or)
If the remedy will not leave hazardous substances on-site
above health-based levels, the Declaration should include the
following:
"Because this remedy will not result in hazardous substances
remaining on-site above health-based levels, the five-year
facility review will not apply to this action."
(Signature of Assistant/Regional Administrator)
(Signature of State Director (if appropriate))
Date
(Note. Attach the State's letter of concurrence to the Record of
Decision package)
-------
THE DECISION SUMMARY
The Decision Summary provides an overview of the problems
posed by the site, the alternatives evaluated, and the analysis of
those options. The Decision Summary explains the rationale for
the selection and how the selected remedy meets the statutory
requirements. The information to be presented in each of the
sections of the Decision Summary is outlined below.
Site Name, Location, and Description. Briefly describe the
site in terms o£
O Name, location, address (include maps or sue plan as
appropriate);
a Area of site, topography, if located in a floodplain;
o Adjacent land uses;
a Natural resource use;
D Location and distance to nearby populations;
o General surface water and ground water resources; and
- Surface and subsurface features (e.g., number and volume
of tanks, lagoons, structures, and drums).
Site History and Enforcement Activities. Summarize the
following:
a History of site activities that led to current problems;
D History of Federal and State site investigations and
remedial actions conducted under CERCLA or other
authorities; and
a History of CERCLA enforcement activities at the site,
including:
-Whether special notice has been issued to PRPs;
-If a moratorium has commenced;
-Results of negotiations, if they can be publicized;
-Whether a lawsuit has been filed regarding cleanup of
the site (provide court and docket number): and
-If technical discussions with PRPs are summarized in the
administrative record.
Community Relations History. Summarize the major
community relations activities:
a How the public participation requirements under sections
113(k)(2Xi-v) and 117 were satisfied during the remedial
process.
Note: Community response to the selected remedy should be
addressed under the "community acceptance" criterion in the
Comparative Analysis section of the ROD. Responses to
community concerns will be addressed in the Responsiveness
Summary of the ROD.
Scope and Role of Operable Unit or Response Action
Within Site Strategy.
Q Summarize the scope of the problem(s) addressed by the
remedial action. Will it address any of the principal
threats?
a Describe the role of the action within the overall site
remediation strategy (operable unit or response action).
Note: The Statutory Determinations section of the ROD must
explain whether or not the selected remedy satisfies the statutory
preference for remedies employing treatment that reduces
toxicity, mobility, or volume as a principal element. By indicating
whether the principal threads) will be addressed by the action, the
Scope and Role section will provide the basis for this
determination.
Summary of Site Characteristics. Highlight the following
factors:
D Contamination and affected media, including:
-Types and characteristics of contaminants (e.g., toxicity,
mobility);
-Quantities of contaminants; and
-Concentrations of contaminants;
n Known or suspected sources of contamination; and
o Location of contamination and known or potential routes
of migration:
-Lateral and vertical extent of contamination; and
-Potential surface and subsurface pathways of migration.
Summary of Site Risks. Summarize the results of the baseline
risk assessment conducted for the site.
o Identify contaminants of concern (indicator chemicals);
Q Summarize results of the exposure assessment;
a Summarize the toxicity assessment of contaminants of
concern;
a Summarize nsk characterization:
-Potential or actual carcinogenic risks:
-Noncarcmogenic risks;
-Environmental risks; and
a Describe analytic methods used in making the risk
calculations.
Note: This summary of the baseline risks provides the rationale
for the lead agency's undertaking a response action or taking no
action.
Documentation of Significant Changes. CERCLA section
117(b) requires an explanation of any significant changes from the
preferred alternative originally presented in the Proposed Plan. If
the selected remedy reflects significant changes from the
preferred alternative, the ROD should:
o Identify the preferred alternative presented in the
Proposed Plan;
a Describe the significant changes; and
a Explain the reason(s) for such changes.
Description of Alternatives. The objective of this section is to
provide an understanding of the alternative waste management
strategies developed for the site and their specific components.
Each alternative should be described in terms of the components
listed below. Figure 1 highlights elements of remedies to be
addressed in this section.
a Treatment components, including:
- Treatment technologies that will be used;
Type and volume of waste treated;
- Contaminated media addressed:
- Process sizing;
- Treatment levels (e.g.. Land Ban, percentage of
order of magnitude reductions expected, MCLs, etc.);
- Residual levels (e.g., dean closure, NPDES,
delisting);
- Implementation requirements; and
- Assumptions, limitations, and uncertainties.
a Containment Components, including:
- Type and quantity of waste(s) to be contained;
- Quality of untreated waste and treatment residuals to
be contained in terms of the type or degree of risks
they pose; and
- Type of closure that will be implemented.
a Institutional controls, including short-term controls
during remediation and long-term controls as part of
O&M.
- 2 -
-------
D
a
a
a
Groundwater classification, e.g., Class I, II, or III
Estimated time for implementation
Estimated capital, O & M, and present worth costs.
The major ARARs associated with the vanous
components of the waste management strategy (e.g..
Subtitle C closure requirements, MCLs for ground-water
remediation) should be incorporated into the description
of the alternatives to the extent possible. In addition, the
CERCLA off-site policy should be discussed where
applicable.
Summary of Comparative Analysis of Alternatives. In this
section, summarize the relative performance of the alternatives by
highlighting the key differences'among the alternatives in relation
to the nine evaluation criteria. An effective way of organizing this
section is to present a series of paragraphs headed by each
criterion. Under each criterion, the alternative that performs best
in that category should be discussed first, with other options
discussed in sequence. Refer to the RI/FS and ROD guidance
documents for additional information on the factors included in
each of the nine criteria. These factors should be addressed, when
appropriate, in the alternative descriptions. The nine evaluation
criteria are summarized below.
Overall protection of human health and the environment
addresses whether or not a remedy provides adequate
protection and describes how risks posed through each
pathway are eliminated, reduced, or controlled through
treatment, engineering controls, or institutional controls.
Compliance with ARARs addresses whether or not a remedy
will meet all of the applicable or relevant and appropriate
requirements of other environmental statutes and/or provide
grounds for invoking a waiver.
Long-term effectiveness and permanence refers to the ability
of a remedy to maintain reliable protection of human health
and the environment over time, once cleanup goals have been
met.
Reduction of toxicity, mobility, or volume is the anticipated
performance of the treatment technologies a remedy may
employ.
Short-term effectiveness addresses the period of time needed
to achieve protection and any adverse impacts on human
health and the environment that may be posed during the
construction and implementation period, until cleanup goals
are achieved.
Implementability is the technical and administrative
feasibility of a remedy, including the availability of materials
and services needed to implement a particular option.
Cost includes estimated capital and operation and
maintenance costs, and net present worth costs.
State Acceptance should be used to address the support
agency's comments. Where the State or Federal agency is the
lead for the ROD, EPA's acceptance of the selected remedy
should be addressed under this criterion.
Community Acceptance summarizes the public's general
response to the alternatives described in the Proposed Plan
and RI/FS report. The specific responses to public comments
should be addressed in the Responsiveness Summary section
of the ROD.
Notes: In addressing the long-term effectiveness and
permanence of an alternative, the term "permanence" should be
used carefully. Permanence is viewed along a continuum; an
alternative can be described as offering a greater or lesser degree
of permanence. The term "permanent remedy" should refer only
to those alternatives that require no long-term management of
wastes.
Only reductions achieved through treatment should be addressed
under the "reduction of toxicity, mobility or volume" criterion.
Reductions of mobility accomplished through containment
should be addressed under "overall protection of human health
and the environment."
Figure 1
Components of Alternatives to be Descri
28.000 YD3
SOU.
• Heavymetals
Cd 28 ppm.
Cr *• 12 ppm
Pb 41 ppm
• VCCs
TCE 127 ppm
Benzene. 52 ppm
• 10 "2 carcinogenic risk
level
CONTAMINATED
GROUND WATER
• TCE 202 ppm
Benzene. 103 ppm
• 10~* carcinogenic
risk level
Time Until Cleanup Goals Met
„ SOIL
EXCAVATION
IDRY
SCRUBBER
1 '
ON-SITE
INCINERATION
ROTARY WLN
• Clean closure • Meets Land Ba
• Bacxnivregraoe technology
• Revegetate *"*""*
AIR
EMISSIONS
t
GROUND-WATER
EXTRACTION
• 1 75 Million
Gallons per
Day pumping
rale
Sol
AIRSTRIP
GAC
bed AIR
• 9B 98% Destruction Removal Efficiency
Residual Ash ON-SITE DISPO
Heavy ft.
n
Spent GAC
.-,-,. SUBTITLE C LAN
OF
RESIDUALS FR
280OOYD3 C.
TREATED SO
TREAT IN
ACCORDANCE _
WITH
LAND BAN
OFF-SITE
» SUBTITLE c
DISPOSAL
• \ nng t^fm QAU
c., - Ground-water
^^ monitonng
DFILL " c*P"ln»r
Integrity
Ofgl • Deed restrictions
>F • Exposure level at
L 10"^
concentration
• $14.868.000
Capital
$43.700 Annual
O&M
e $14.400000
Present worth
OFF-StTE
SUBTTTLE C
DISPOSAL
08 2^fc
Effluent , Removal Efficiency
DISCHARGE
TO
XY2 RIVER
• NPDES permit
• 10 ~* carcinogenic
risk level
• $12.527.000 Capital
$525 000 Annual CAM
• $15.300.000
Present worth
Groundwater
Z 28 Months : 8 Yrs *"""
- 3 -
-------
The Selected Remedy. In this section of the ROD, identify the
selected remedy and state:
a The cancer risk level to be attained and the rationale for it;
and
o As appropriate, locations where performance levels will
be attained, for the media addressed (e.g., MCLS will be
met at the edge of the waste management area.)
The Statutory Determinations. The remedy selected must
satisfy the requirements of section 121 of CERCXA to:
a Be protective of human health and the environment;
o Attain ARARs (or explain rationale for invoking a
waiver);
a Be cost-effective;
a Utilize permanent solutions and alternative treatment
technologies or resource recovery technologies to the
maximum extent practicable; and
a Address whether the preference for treatment that
reduces toxicity, mobility, or volume as a principal
element is satisfied.
A description of how the selected remedy satisfies each of the
statutory requirements should be provided. Points to address for
each of these are presented in Highlight 2.
THE RESPONSIVENESS SUMMARY
The final component of the ROD package is the Responsiveness
Summary, which serves two purposes. First, it provides lead
agency decision-makers with information about community
preferences regarding both the remedial alternatives and general
concerns about the site. Second, it demonstrates to members of
the public how their comments were taken into account as an
integral part of the decision-making process.
Guidance on preparing Responsiveness Summaries is available in
Community Relations in Superfund: A Handbook (OSWER
Directive 9230.0-3B).That document details the process of
preparing the Summary and includes a sample Responsiveness
Summary.
Highlight 2: The Statutory Determinations
Protection Of Human Health And The Environment.
o Describe how the selected remedy will eliminate, reduce,
or control risks posed through each pathway to ensure
adequate protection of human health and the environ-
ment
a Indicate that no unacceptable short-term risks or cross-
media impacts will be caused by implementation of the
remedy.
Attainment of ARARs.
n State whether the selected remedy will attain all applica-
ble or relevant and appropriate requirements. When ap-
propriate, state the waiver that is being invoked and the
grounds for the waiver.
a List and describe the Federal and State ARARs that the
selected remedy will attain, distinguishing applicable
from relevant and appropriate requirements as necessary.
a List and provide the rationale for using any "to be con-
sidereds."
Note: In listing ARARs the specific section of the statute or regu-
lation that contains the requirement should be cited and a brief
synopsis of the requirement should be provided.
Cost Effectiveness.
o Describe how the selected remedy provides overall effec-
tiveness proportionate to its costs such that it represents a
reasonable value for the money.
Utilization of Permanent Solutions and Alternative
Treatment Technologies or Resource Recovery
Technologies to the Maximum Extent Practicable
("MEP").
a Explain the overall rationale for the remedy selection, that
is, how the remedy was judged to provide the best balance
of trade-offs among the alternatives examined in detail
with respect to the nine evaluation criteria. This explana-
tion should highlight the performance of the selected rem-
edy against the criteria deemed most important for the site
to clarify why:
The remedy was determined to be the most
appropriate solution for the site.
The remedy represents the maximum extent to which
permanent solutions and treatment can be practicably
utilized for this action.
Note: This is a statutory requirement that must be met by
all remedies. In explaining the selection of remedies that
involve little or no treatment, the impracticability of treat-
ment should be discussed or it should be acknowledged that
treatment was not within the limited scope of the action.
Preference for Treatment as a Principal Element.
o Describe how the preference for treatment is satisfied if the
remedy uses treatment to address the principal threats
posed by the site.
a Explain why the preference is not satisfied if treatment is
not used to address the principal threats. This explanation
will either describe how the operable unit or response ac-
tion does not encompass the principal threats, or why treat-
ment of the principal threats was not found to be practica-
ble or within the limited scope of the action.
- 4 -
-------
6 EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347.3-01 FS
July 1989
Superfund LDR Guide #1
Overview of RCRA
Land Disposal Restrictions
(LDRs)
The Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA)
- - P.L. 98-616, signed on November 8, 1984 - - include specific provisions restricting the land disposal of RCRA
hazardous wastes. The purpose of these HSWA provisions is to minimize the potential of future risk to human health
and the environment by requiring the treatment of hazardous wastes prior to their land disposal. This guide
summarizes the major components of the land disposal restrictions (LDRs), outlines the types of restrictions
imposed, and presents the compliance options specified in the regulation. Other Superfund LDR Guides are listed
at the end of this guide. More detailed guidance on Superfund compliance with the LDRs is being prepared by the
Office of Solid Waste and Emergency Response (OSWER).
DEFINITION OF LAND DISPOSAL
The LDRs place restrictions on the land disposal
of RCRA hazardous wastes. The definition of land
disposal (or "placement," which is synonymous with
"land disposal") under RCRA includes, but is not
limited to:
any "placement" of hazardous waste in a landfill,
surface impoundment, waste pile, injection well,
land treatment facility, salt dome formation, salt
bed formation, underground mine or cave, and
concrete bunker or vault. (RCRA §3004(k))
The LDRs apply only to RCRA hazardous wastes
that are land disposed or placed. They do not apply
to wastes that are discharged to surface waters (where
National Pollutant Discharge Elimination System
(NPDES) requirements apply) or to Publicly Owned
Treatment Works (where pretreatment requirements
apply). The LDRs also do not apply to contaminated
ground water treated and supplied directly to
households (where Maximum Contaminant Levels
(MCLs) generally apply).
It is important to note that the LDRs apply
prospectively to wastes that are land disposed after the
effective date of the restrictions (i.e., the LDRs do
not require that wastes land disposed prior to the date
of the restrictions be removed and treated).
STATUTORY DEADLINES
HSWA directed EPA to establish treatment
standards for each of seven groups of RCRA
hazardous wastes by specific dates. These dates,
referred to as statutory deadlines, will eventually
restrict land disposal of all RCRA hazardous wastes,
as shown in Highlight 1.
Highlight 1: LDR STATUTORY DEADLINES
Waste
Statutory Deadline
Spent SoJvcnt and DJona-
California List Wastes
First Third Wastes
Spent SoNcttt. Dionn-
CootiaxuoKt and Cafiforaia
List Soft and Debris From
CERCLA/RCRA Corrective
Actions
Second Third Wastes
Third Tttrd Wastes
Newly Identified
Wastes
November 8, 1986
JMyS, W87
August 8, 1988
Novembers, 1968
JuneS, 1989
1990
Wittain 6 months of
identification as a
hazardous waste
-------
The statutory deadlines are important because they
are the dates on which RCRA wastes become
"restricted," although EPA has the authority to restrict
a waste before its statutory deadline. For example, the
Agency has restricted certain Second Third wastes in
the First Third rule and certain Third Third wastes in
the June 1989 Second Third rule.
STATUTORY WASTE CATEGORIES
The first category of wastes (refer to Highlight 1)
includes: the F001-F005 spent solvent-containing RCRA
wastes and the F020-F023 and F026-F028 dioxin-
containing RCRA wastes. The second category, the
California list wastes, is a distinct category of RCRA
hazardous wastes described further in Superfund LDR
Guide #2. The three categories of scheduled wastes
(i.e., First Third, Second Third, Third Third wastes)
include ah1 listed and characteristic hazardous wastes
identified as of November 8, 1984 (excluding the
solvent and dioxin wastes mentioned above). EPA
ranked the scheduled wastes based on their toxicity
and volume and placed the highest toxicity/volume
wastes in the "First Third." Soil and debris (see
Highlight 2) contaminated with spent solvent- or
dioxin-containing and California list wastes generated
during CERCLA response and RCRA corrective
actions were given a separate statutory deadline.
Finally, wastes newly identified or listed after 1984
must have standards set within six months of their
identification or listing as a hazardous waste.
Highlight 2: DEFINITIONS OF SOIL AN1>
DEBRIS
Soil is defined as materials that are
primarily of geologic Origin such a& san4 Siit,
loam, or day that are indigenous to the natural
geological environment at or aear the
CERCLA site, (fa many cases,; soil is mixed
with liquids, sludges, aad/or debris.)
Debris is deHixsi as materials that are
primarily non-geologic in origin such as grass,
trees, stamps, an4 man-made materials such as
concrete, clothing, partially buried whole or
empty drams, capacitors, and other synthetic
manufacturing items, such as liners. (It does
not include synthetic organic chemicals, but
may include materials contaminated with these
chemicals.)
TYPES OF LDR RESTRICTIONS
As discussed above, a RCRA hazardous waste
becomes "restricted" under the LDRs on its statutory
deadline (or earlier if EPA promulgates the restriction
ahead of schedule). On that date, one of four types of
restrictions will apply:
1. Treatment standards: EPA may set one of three
types of treatment standards for restricted wastes:
• A concentration level to be achieved prior to
disposal (the most common type of treatment
standard);
• A specified technology to be used prior to
disposal; or
• A "no land disposal" designation when the
waste is no longer generated, is totally recycled,
is not currently being land disposed, or no
residuals are produced from treatment.
All three types of treatment standards are
established based on the best demonstrated available
technology (BOAT) identified for that waste.
2. Minimum technology requirements during a national
capacity extension: When EPA sets a treatment
standard, it may grant a national capacity extension
(for up to two years) if sufficient treatment capacity
is not available for that waste. During a national
capacity extension, the treatment standards set for
a waste do not have to be met. However, if wastes
that do not meet the standards are disposed of in
a landfill or surface impoundment, the receiving unit
must meet the RCRA minimum technology
requirements (i.e., double liner, leachate collection
system, and ground-water monitoring).
When EPA sets treatment standards for Third Third
wastes in May 1990, it may grant a national capacity
extension, but only for up to two years. Therefore,
by May 1992, all national capacity extensions will
have expired. The only exception may be if EPA
grants an extension when it sets treatment standards
for newly identified wastes. Superfund LDR Guide
#3 provides additional information on the minimum
technology requirements.
3. Soft hammer restrictions: If EPA fails to set a
treatment standard for a First or Second Third
-------
waste by its statutory deadline, soft hammer
restrictions apply. The soft hammer requirements
place the following restrictions on the disposal of
wastes in landfills and surface impoundments:
• The receiving unit must meet minimum
technology requirements; and
• The site manager (as a generator) must
determine if treatment is practically available.
If treatment is practically available, the site
manager must use the best practically available
treatment to treat wastes before disposal; if
treatment is not practically available, the wastes
may be disposed of without treatment.
Land disposal in other types of units, such as land
treatment units and waste piles, is not restricted
under soft hammers, although an LDR notification
will be required for actions involving off-site
disposal in such units.
Soft hammer restrictions remain in effect until
EPA sets a treatment standard, or until May 1990,
when the hard hammer restrictions become
effective.
4. Hard hammer restrictions: If EPA fails to set a
treatment standard by the. statutory deadlines for
solvent- and dioxin-containing and California list
wastes, or by May 8, 1990, for any of the scheduled
wastes, the hard hammer restrictions prohibit all
land disposal of the affected waste until a
treatment standard is promulgated. To date, the
hard hammer has only fallen for certain California
list wastes.
Superfund LDR Guide #4 provides more
information on soft and hard hammer restrictions.
LDR COMPLIANCE OPTIONS
EPA recognizes that not all wastes can be treated
to the LDR treatment standards and that alternative
treatment standards and methods of land disposal may
provide significant reduction in the toxicity, mobility, or
volume of wastes and be protective of human health
and the environment. The LDRs, therefore, provide
the following compliance options to meeting the
restrictions discussed above.
• Treatabilitv Variance: This option is available when
EPA has set a treatment standard as a
concentration level, but because a generator's waste
differs significantly from the waste used to set the
standard, the promulgated treatment standard
cannot be met or the BDAT technology is
inappropriate for that waste. (For the purposes of
the LDRs, CERCLA site managers are considered
generators of hazardous waste.) Under a
Treatability Variance, EPA approves an alternate
treatment standard that must be met before that
waste can be land disposed. Superfund LDR
Guides #6A and #6B provide more information
for ob taming Treatability Variances for remedial
and removal actions.
• Equivalent Treatment Method Petition: This option
is available when EPA has set a treatment standard
that is a specified technology (e.g., incineration).
Generators may use a different technology (e.g.,
chemical treatment) if they can demonstrate that
this technology will achieve a measure of
performance equivalent to that of the specified
technology.
• No Migration Petition: This option may be used to
meet any of the four types of LDR restrictions.
Under this option, generators may land dispose
wastes that do not meet the LDR restrictions if
they can demonstrate that there will be "no
migration" of hazardous constituents above health-
based levels from the disposal unit or injection zone
for as long as the wastes remain hazardous.
• Delisting. This option may be used to demonstrate
that a waste is nonhazardous and, therefore, not
subject to any of the RCRA Subtitle C hazardous
waste regulations, including the LDRs. Delisting
only applies when the CERCLA waste is a listed
RCRA hazardous waste. (Characteristic wastes
need not be delisted, but they can be treated to no
longer exhibit the characteristic.) Generators must
demonstrate that: (1) the waste does not meet any
of the criteria for which the waste was listed as a
hazardous waste, and (2) other factors (including
additional constituents) do not cause the waste to
be hazardous.
The LDRs also permit a case-by-case extension of
up to two years, which allows a site-specific extension
of the effective date if a generator has a binding
contractual commitment for treatment capacity and can
show that no capacity currently exists anywhere in the
United States. This option, however, is generally not
appropriate for Superfund response actions.
SOIL AND DEBRIS WASTES
As discussed earlier, the LDRs apply to soil and
debris when they are contaminated with a restricted
RCRA hazardous waste. Because of the complex
-------
nature of many soil and debris matrices (as compared
with the industrial process wastes upon which the LDR
treatment standards were based), it may be difficult to
meet these standards for wastes mixed with soil and
debris. Consequently, the Agency is undertaking a
rulemaking that will set LDR treatment standards
specifically for soil and debris. Until that rulemaking
is completed, however, site managers may need to
obtain a Treatability Variance.
OTHER LDR REQUIREMENTS
In addition to the four types of restrictions
described above, the LDRs also include the following
requirements:
• Storage Prohibition: The LDRs prohibit the
storage of restricted wastes (including soft hammer
wastes) unless storage is solely for the purpose of
accumulating sufficient quantities of wastes to
facilitate proper treatment, recovery, or disposal.
For periods of up to one year, the burden is
generally on EPA to prove that storage is not
needed to facilitate proper treatment, recovery, or
disposal; after one year, the burden of proof shifts
to the storage facility. Temporary storage used
during CERCLA actions to facilitate proper
disposal (e.g., storage while awaiting sampling
results, or while selecting and designing a remedy)
is allowable under the storage prohibition.
• Exemption for Treatment in Surface
Impoundments: Placing untreated wastes in surface
impoundments (that meet the minimum technology
requirements) for treatment is permissible, provided
the treatment residues that do not meet the LDR
treatment standards or prohibition levels are
removed for subsequent management (through any
treatment other than treatment in another surface
impoundment) within one year of placement into
the surface impoundment.
• Dilution Prohibition: Dilution of a waste as a
means to comply with the LDRs is prohibited.
However, "dilution" that is part of treatment (e.g.,
mixing for Immobilization) is permissible.
The LDRs also establish requirements for testing,
notification, and certification of compliance.
Testing: Once it is determined that a waste is
restricted under the LDRs, generators, treatment
facilities, or disposal facilities must test the waste
at a frequency specified in the facility's waste
analysis plan to demonstrate compliance with LDR
treatment standards or California list prohibition
levels prior to land disposal.
Notification: All restricted wastes that are shipped
to an off-site treatment, storage, or disposal facility
must be accompanied by a notification that includes
the EPA hazardous waste number and the
applicable LDR restriction that is in effect for those
wastes.
Certification: A treatment facility must certify that
the LDR treatment standards have been attained
before a restricted waste is land disposed off-site.
(There are also certification requirements specifically
for soft hammer wastes; see Superfund LDR Guide
#4.)
OTHER AVAILABLE SOPERFUND/LDR
GUIDES
#2 Complying with tie California List
Restrictions Under LDRs
#3 Treatment Standards and Minimum
Technology Requirements Under LDRs
#4 Complying With the Hammer Restrictions
Under LDRs
#5 Determining When LDRs are Applicable
to CERCLA Response Actions
Obtaining a Soil and Debris Treatabffity
Variance for Remedial Actions
Obtaining a Soil and Debris Treatability
Variance for Removal Actions*
#7 Determining Whea LDRs Are Relevant
and Appropriate to CERCLA Response
Actions*
*Carrently being prepared in OSWER
-------
EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347.3-O2FS
July 1989
Superfund LDR Guide #2
Complying With the California
List Restrictions Under Land
Disposal Restrictions (LDRs)
The Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA)
include specific restrictions on the land disposal of RCRA hazardous wastes. California list wastes are a distinct
category of RCRA hazardous wastes that are restricted under the land disposal restrictions (LDRs). This guide
defines the California list wastes, summarizes their respective restrictions, and discusses their potential overlap with
other LDR treatment standards. More detailed guidance on California list waste restrictions and Superfund
compliance with the LDRs is being prepared by the Office of Solid Waste and Emergency Response (OSWER).
DEFINITION OF CALIFORNIA LIST WASTES
To be classified as a California list waste, three
conditions must be met:
(1) The waste must be a RCRA listed or characteristic
waste;
(2) The waste must be a liquid (i.e., it fails method
9095 Paint Filter Liquids Test [PFLT]), except for
Halogenated Organic Compounds (HOCs). which
may be liquid or non-liquid; and
(3) The waste must exceed statutory prohibition levels
for specified constituents.
The types of wastes that may be California list
wastes are: free cyanides, certain metals, corrosive
wastes, PCBs, and HOCs. (HOCs are compounds
containing carbon and a halogen, such as fluorine,
chlorine, bromine, iodine, and astatine, in their
molecular formula). The Agency has limited the
restricted HOCs to approximately 100 HOCs listed in
Appendix III to 40 CFR Part 268. These restricted
HOCs include solvents, pesticides, PCBs, and dioxins.
These hazardous wastes are referred to as
California list wastes because the State of California
developed regulations to restrict the land disposal of
wastes containing these constituents, and Congress
subsequently incorporated these provisions into the
1984 HSWA amendments to RCRA. Even if LDR
treatment standards have not been promulgated for
certain RCRA wastes (e.g., Third Third wastes), these
wastes may be subject to California list restrictions.
If the Agency has promulgated a treatment standard
for a California list hazardous waste, the waste must
attain that treatment standard before land disposal. If
the Agency has not set a treatment standard, the waste
must be treated to below the prohibition level (or
rendered non-liquid if a non-HOC waste) before it
may be land disposed.
CALIFORNIA LIST LDR RESTRICTIONS
The Agency has promulgated treatment standards
for PCB-containing wastes and HOC-containing wastes
(except for dilute HOC wastewaters). The treatment
standards for PCBs and some HOCs became effective
on July 8, 1987.
The Agency has not set treatment standards for
the remaining California list wastes. Instead, the
Agency codified the statutory prohibition levels for
corrosive wastes and dilute HOC wastewaters and
allowed the hard hammer provisions to take effect for
free cyanides and California list metals. The
prohibitions on these wastes became effective on July
8, 1987. The effects of these restrictions are the same:
prohibiting the land disposal of these wastes above the
prohibition levels.
Based on a finding of inadequate treatment capacity,
EPA granted a nationwide extension to the effective
date for treating California list HOC wastes until July
8. 1989. The Agency subsequently rescinded the
variance, and the restriction for HOC wastes became
effective November 8, 1988. The Agency also granted
-------
an extension of the effective date for HOC-containing
soil and debris wastes until July 8, 1989, for soil and
debris wastes not from CERCLA/RCRA corrective
actions, and until November 8, 1990, for soil and debris
wastes from CERCLA/RCRA corrective actions.
California list wastes granted a national capacity
variance from the treatment standards may be disposed
of in a landfill or surface impoundment only if the
receiving unit complies with minimum technology
requirements (See Superfund LDR Guide #3). The
prohibition levels, treatment standards, and effective
dates for the California list wastes are presented in
Highlight 1.
OVERLAP WITH OTHER TREATMENT STANDARDS
As noted earlier, wastes must be RCRA listed or
characteristic wastes to be California list wastes.
Therefore, California list wastes may also be restricted
as solvent- or dioxin-containing wastes or as scheduled
wastes. For wastes covered by more than one LDR
standard, the LDR restrictions for the more specific
waste stream generally take precedence, once the
standard is promulgated. For example, F006 non-
wastewaters may be restricted under the California list
rule because the waste is a liquid and may contain
nickel above the statutory prohibition level. The F006
treatment standard, which is expressed as a
concentration level, however, takes precedence over the
California list restriction (i.e., codified prohibition
level).
The Agency has determined that soft hammer
wastes and wastes for which national capacity variances
have been granted remain subject to California list
prohibitions (i.e., if either of these waste types is
subject to a California list treatment standard or
statutory prohibition level, that treatment standard or
statutory level must be met before the waste can be
land disposed). If a.California list treatment standard
is promulgated for a soft hammer waste, the more
stringent of the restrictions apply. For example, if a
non-liquid soft hammer waste contains 1,100 mg/kg
total HOCs, the waste must meet the California list
treatment standard of incineration or burning in a
boiler or industrial furnace before land disposal. If a
liquid soft hammer waste contains 510 mg/1 lead (for
which no California list treatment standard exists), the
soft hammer restrictions apply. If treatment is not
available, the waste must at least be treated below the
prohibition level (i.e., 500 mg/1) or rendered non-liquid
and can only be disposed of in a surface im-poundment
or landfill if the receiving unit meets minimum
technology requirements or has an equivalent waiver.
Highlight 1
- PROHIBITION LEVELS
FOR CALIFORNIA
California tist Prohibition Level
Constituent
Free Cyanides
Arsenic
Cadmium
Cilioniium VI
Laact
Mercuiy
Blckei
Selenium
Corrosives
£CBs
> 500 ppm
> SO ppm and < "500 -gpo-
Halogenated Qcgaoie Confounds
Dilute "Wa»tewaters
(<10,000 ffls/kg)
Bon-Ellttt« Hastewaters
and Kon~Licpjids
Xon-RCKA/CEBCLA Soil
and Debris
RCRA/CESCLA Soil and
Debris
1000 rag/l
500 mg/1
100 mg/1
500 ros/1
500 fflg/1
20 fflg/1
13* mg/1
1QO tag/1
130 rag/t
pH <. 2.0
50 ppta
SO ppm
(BQCE>
1OOO ragAs
10QO mgAfe
1000 fflg/kg
1OQO mg/kg
AND TREATMENT STANDARDS
LISt, WASTES
Treatweot Standard Effective Date
SORE " hard feanraer ' July «, 1387
SQKE — liard hamaer . July S, 1987 ;
808E — Codified July S, 1387 "
problcit-toti levels
3HCIHERATION" as speci- July «, 1387
tied Tinddl I5CA,
9$ 939^X DEE
tHCISERATIOK CS. THERMAL July 8, 19S7
DESTEtJCTXOS in Boilex,
99.99931 ERE
prohibition levels
IHCIKERATIOH 99.39X ORE Kov, 8, 1988
TNCISEEATIOX 99.991 DRE July C, 1389
INCIKERATIOtf 99.99X ORE Ho\r S, 1990
-------
&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347.3-O3FS
July 1989
Superfund LDR Guide #3
Treatment Standards and
Minimum Technology
Requirements Under Land
Disposal Restrictions (LDRs)
CERCLA section 121(d)(2) requires that Superfund response actions comply with other environmental laws that
are applicable or relevant and appropriate requirements (ARARs). A potential ARAR for CERCLA responses is
the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under the
Hazardous and Solid Waste Amendments (HSWA). The LDRs prohibit the land disposal of restricted RCRA
hazardous wastes unless these wastes meet treatment standards specified in 40 CFR Part 268, meet the minimum
technology requirements during a national treatment capacity extension, or satisfy the requirements of one of the other
available compliance options (i.e., Treatability Variance, Equivalent Treatment Method Petition, No Migration Petition,
or Delisting). This guide summarizes the types and effective dates of treatment standards and outlines how to
comply with the treatment standards and the minimum technology requirements set during national capacity
extensions. More detailed guidance on Superfund compliance with the LDRs is being prepared by the Office of Solid
Waste and Emergency Response (OSWER).
TYPES OF TREATMENT STANDARDS
EPA has established treatment standards under
the LDRs on the basis of the best demonstrated
available technology (BDAT) rather than risk-based
or health-based standards. "Best" is defined as that
technology which offers the greatest reduction (based
on a statistical analysis) of toxicity, mobility, or volume
of the waste. To be "demonstrated." a treatment
technology must be demonstrated to work at a full-
scale level (i.e., technologies available only on a pilot-
or bench-scale are not considered demonstrated). To
be "available." a treatment technology must be
commercially available.
Within this framework, the Agency has established
three types of LDR treatment standards:
• Concentration levels — which must be attained
before the wastes or treatment residuals may be
land disposed;
• Specified technologies - which must be applied to
the waste before the residuals may be land
disposed; and
• No land disposal — which prohibits land disposal
of certain restricted hazardous wastes.
Concentration Levels
The majority of the LDR treatment standards
promulcated to date are concentration levels. For
wastes with treatment standards expressed as
concentrations, any technology that can achieve the
required levels may be used unless the technology is
otherwise prohibited (i.e., the BDAT used by EPA to
set the standards need not be used).
To establish a concentration level(s) for a specific
waste code (e.g., K062), the Agency selects a subset of
the hazardous constituents found in the waste (known
as "BDAT constituents") and sets treatment standards
for each of these constituents. Although these wastes
may contain additional constituents, only the treatment
standards for the "BDAT constituents" must be met
before the wastes can be land disposed. The residues
from treatment of an originally listed waste (e.g., ash,
scrubber water) are also listed RCRA hazardous wastes
(because of the "derived from" rule), and therefore,
also are prohibited from land disposal unless they meet
treatment standards for the waste code(s) of the
original listed waste(s) from which they derive.
EPA has promulgated separate standards for
wastewaters and nonwastewaters for treatment
standards expressed as concentration levels. For LDRs,
wastewaters normally are defined as wastes containing
less than one percent total organic carbon (TOC) and
less than one percent total suspended solids. All other
materials (including soil and debris) are classified as
nonwastewaters, except for F001-F005 wastes, for which
only the TOC is used to define wastewaters.
Concentrations of BDAT constituents in solid
residues from treatment must not exceed the
-------
nonwastewater concentrations. Similarly, the
concentration of BDAT constituents in wastewaters
from treatment (e.g., incineration scrubber water) must
not exceed the wastewater concentrations. Highlight 1
provides an example of standards expressed as
concentration levels for K062 waste.
Highlight 1 - TREATMENT
STANDARDS FOR K062 WASTE
Constituent
Nonwastewater
Total chromium
Lead
Wastewater
Total chromium
Nickel
Lead
Treatment Standard
Total Waste TCLP
fras/lqr} {ma/lT
NA 0.094
NA 0.37
0.32 . NA
0.44 NA
0.04 NA
* K.062 waste is spent |mdtte liqaor generated by
the steel fimshtng operations of facilities
•within t&e iron 4n«i Steel industry.
Specified Technologies
If a treatment standard is promulgated as a
specified technology, that technology must be used to
treat the waste unless an Equivalent Treatment Method
Petition is approved by the Administrator. To be
granted, such a petition must demonstrate that the
alternative technology achieves an equivalent measure
of performance. For example, the Agency has set the
treatment standard for California list PCB wastes
containing greater than 500 ppm PCBs as thermal
destruction. These wastes must be incinerated to
99.9999 percent destruction and removal efficiency
(DRE) under the LDRs before the ash from treatment
may be land disposed unless a Petition allowing an
equivalent treatment method is granted.
No Land Disposal
EPA sets a standard of no land disposal when,
after examining available data, the Agency has
determined that: the waste can be totally recycled
(e.g., on-site, closed loop recycling); the waste is not
currently being land disposed; the waste is no longer
generated; or no residuals are anticipated from the use
of the BDAT.
Although certain wastes may no longer be
generated or land disposed, these wastes may still be
found at Superfund sites. EPA has amended most of
these waste codes, however, to apply only to wastes
generated from the process described in the listing
description and disposed of after the effective date of
the prohibition (see -54 FR 18836, May 2, 1989).
Therefore, CERCLA wastes ordinarily would not be
subject to these standards.
COMPLYING WITH LDR TREATMENT STANDARDS
There are two types of tests for evaluating
compliance that may be required, depending on how
the treatment standards are promulgated: the Total
Waste Analysis (TWA) measures the total concentration
levels of the hazardous constituents in the waste or
treatment residuals; and the Toxicity Characteristic
Leaching Procedure (TCLP) measures concentration
levels in the waste extract as a result of the TCLP test.
The TWA test generally is used for organic
constituents when a removal or destruction technology
is the BDAT. The TCLP generally is used for
inorganics when an immobilization BDAT is the basis
for the standard. However, the TCLP is also used for
the solvent- and dioxin-containing waste LDR treatment
standards and TWA is used for metals when BDAT is
based on metals recovery. Site managers (OSCs and
RPMs for on-site treatment and disposal actions) or
treatment facilities (for off-site disposal actions) must
test wastes after treatment and before land disposal to
determine if the LDR treatment standards are met.
TREATMENT STANDARDS IN EFFECT FOR RCRA
HAZARDOUS WASTES
Once a determination that the LDRs are ARARs
has been made (see Superfund LDR guide #5), site
managers must determine which of the specific LDR
restrictions are in effect for their waste(s) of concern.
If the Agency has promulgated a treatment standard
for a restricted RCRA hazardous waste, either the
LDR treatment standards or the minimum technology
requirements will be in effect. If EPA has not set a
treatment standard for a restricted RCRA hazardous
waste, either the soft or hard hammer provisions will
be in effect. (See Superfund LDR Guide #4.) The
Agency has promulgated treatment standards for the
following wastes:
Solvent-Containing RCRA Hazardous Wastes
For solvent-containing RCRA hazardous wastes
(F001-F005), EPA has promulgated treatment standards
expressed as concentration levels. Unlike most of the
treatment standards for wastes containing organic
constituents, the standards for the F001-F005 wastes are
expressed as TCLP concentrations (40 CFR 268.41).
-------
Dioxin-Containing RCRA Hazardous Wastes
Dioxin-containing wastes (F020-F023 and F026-
F028), include chlorinated dibenzo-p-dioxins (CDDs),
chlorinated dibenzofurans (CDFs), and chlorophenols.
The treatment standards expressed as concentration
levels are based on incineration of contaminated soil.
Because current analytical methods cannot measure the
concentration levels attainable by the BDAT, EPA set
the treatment standards at the practical detection limits
(i.e., 1 ppb) for most wastes. These standards are also
based on a TCLP analysis (40 CFR 268.41).
Although the LDR treatment standards for dioxin-
containing wastes are concentration levels, the dioxin-
listing rule (50 FR 1978) requires special management
standards for certain types of units:
• Incineration in accordance with 40 CFR 264.343
and 40 CFR 265.352;
• Thermal treatment to 99.9999 percent ORE in
accordance with 40 CFR 265.383; or
• Tank treatment, in accordance with 40 CFR
264.200.
Highlight 2 describes the LDR restrictions in effect
for solvent- and dioxin-containing RCRA hazardous
wastes.
California List Hazardous Wastes
The California list rule established specified
technologies as the treatment standards for certain
California list wastes. Specifically, California list PCB
and halogenated organic compound (HOC) wastes
(except dilute HOC wastewaters) must be incinerated
or burned in high-efficiency boilers or industrial
furnaces. Highlight 3 provides the LDR restrictions in
effect for California list wastes.
First Third Waste_s
The First Third scheduled wastes include those
listed wastes that are intrinsically hazardous or are
high-volume wastes. EPA promulgated treatment
standards expressed as concentration levels and no land
disposal based on TWA and TCLP for certain First
Third wastes on August 17, 1988. First Third wastes
that do not have promulgated treatment standards are
restricted under the "soft hammer" provisions.
Highlight 4 describes the LDR restrictions in effect for
certain First Third wastes for which the Agency has set
treatment standards.
MINIMUM TECHNOLOGY REQUIREMENTS
THAT APPLY DURING A NATIONAL CAPACITY
EXTENSION
If during the promulgation of treatment standards
the Agency determines that insufficient treatment
capacity exists, the Agency may grant a national
capacity extension for a period of up to two years.
During the extension period, if wastes are to be land
disposed in surface impoundments or landfills, the units
must comply with the RCRA Subtitle C minimum
technology requirements (i.e., double liner, leachate
collection system, and ground-water monitoring) under
RCRA 3005(j)(2) or (j)(4) or the receiving units must
have a retrofitting waiver under RCRA 3004(o)(2) or
3005(j) to be considered equivalent to the
minimum technology requirements.
Highlight 2 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR SOLVENTS AND DIOXINS
TYPE OF RESTRICTED
RCRA HAZARDOUS HASTE
TREA1MEHT STANDARD
DAZE
LDR HESTR1CTICH IB EFFECT
AS OF NOVEMBER a. 1985
FD01 to FOCiS (spent
solvent- cant aining
wastes)
F02Q to F023,
FD26 to F028 (dioxin-
containing wastes)
Soil and debris
contaminated with
solvent/diajcin
NOT from CERCLA/RCRA
eorractivs actions
Soil' aad debris
contaminated with
solvent/dioxiti
from CEE.CLA/RCRA
corrective actions
s,
or November 8, 1988*
8, 1986
November a, 1988
November 8, 1990
Treatment standards as concentration
levels
Minimum technology requirements if
disposed of in landfill or surface
impoundment
Soil and debris contamined with solvent-containing wastes were granted a statutory two-year extension to
November 8, 1988. All other solvent-containing wastes becaae restricted on November B. 1986.
-------
Highlight 3 - EFFECTIVE DATES ANU LBR RESTRICTIONS FOR CALIFORNIA LIST WASTES*7
TYPE OF RESTRICTED
HCHA HAZAHDOOS WASTE
•OtEATMEHT SIASDAHD
K DATE
LDK KESTSICTIOH IK ETFECT
AS OF KJVH4BER 8, 1988
California list PCEs
Liquid and non-liquid HCCa
Soil and debris contaminated
with BOCs HOT from CEKCLA/RCRA
eorractivs actions
Soli and debris contaminated
with. HOCs from CEECLA/RCRA
corrective actions
July 8, 1987
»ovemb«r 8, 1988
July 8, 1969
November 6, 19?0
Treatment standards as specified
techno logy ties)
Treatment standards as
technology f i e* )
Minimum technology requirements if
disposed of in landfill or surface
impoundment
technology retirements if
disposed of in landfill or surface
impoundment
& Se* Superfund U38 Guide #4 for soft and hard hatoner restrictions in effect for remaining California list
wastes.
National capacity extensions for several types of
wastes currently are in effect under the LDRs. For
example, soil and debris from CERCLA and RCRA
corrective actions that are contaminated with solvent,
dioxin, and California list wastes have received an
extension until November 8, 1990. All soil and debris
contaminated with First Third wastes for which the
BOAT is based on solids incineration have received an
extension until August 8, 1990. Land disposal of
wastes subject to national capacity extensions in units
other than surface impoundments and landfills (e.g.,
waste piles, land treatment units) is not subject to the
minimum technology requirements during such an
extension.
H^hlight 4 - EFFECTIVE DATES AND LDR RESTRICTIONS FOR CERTAIN FIRST THIRD WASTES4'
TYPE OP RESTRICTED
BORA HAZARDOUS WASTE
TREATMENT STAHDARD
DATE
LDR SESTKICTXOK IB
AS OF HOVEMBEH 6. 1988
First Third wastes (not
otherwise accounted
Soil and debris eont«min«t««miit«t«ti
with First Thixtt wast«e
fox which BDAI is Bolide
incineration
8, 19BB Treatment standards as concentration
levels (TWA and TCLP) and {for a few waste
codes) "no land disposal"
August. 3> 1986 Treatment standards as concentration
ievuis
-------
&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347.3-04FS
July 1989
Superfund LDR Guide #4
Complying With the Hammer
Restrictions Under Land
Disposal Restrictions (LDRs)
CERCLA response actions must comply with the Resource Conservation and Recovery Act (RCRA) Land
Disposal Restrictions (LDRs) when they are determined to be applicable or relevant and appropriate requirements
(ARARs). Compliance with the LDRs will involve meeting the LDR treatment standards, minimum technology
requirements during a national capacity extension, the soft or hard hammer restrictions, or satisfying the requirements
of one of the other LDR compliance options (i.e., Treatability Variance, Equivalent Treatment Method Petition, No
Migration Petition, or Delisting). This guide discusses complying with LDR soft hammer and hard hammer
provisions, which are restrictions on the disposal of hazardous wastes if EPA does not promulgate standards by the
statutory deadlines. More detailed guidance on Superfund compliance with the LDRs is being prepared by the Office
of Solid Waste and Emergency Response (OSWER).
SOFT HAMMER WASTES
If the Agency fails to set treatment standards for
First or Second Third wastes by their specified
statutory deadline (August 8, 1988, and June 8, 1989,
respectively), the wastes become restricted under the
soft hammer provisions until EPA sets a treatment
standard for them, or until May 8, 1990, when the
"hard hammer" provisions will fall. The soft hammer
provisions specify certain restrictions that may have to
be met before the wastes can be land disposed. The
hard hammer provisions prohibit all land disposal of
the wastes. Highlight 1 lists wastes that are soft
hammer wastes (as of August 8, 1988).
Soft Hammer Restrictions
The LDR soft hammer provisions prohibit the
disposal of wastes in surface impoundment or landfill
units unless:
(1) The receiving unit meets the RCRA minimum
technology requirements (i.e., the unit must have
two or more liners, a leachate collection system,
and a ground-water monitoring system) or have an
equivalent RCRA retrofitting waiver. These
waivers are described in RCRA §3005(j)(2), which
requires that a unit be at least one-quarter of a
mile from an underground drinking source, and
Waste
Code
F006
P019
K004
KOOB
K011
KE13
KOI'.
KQ17
K021
K02Z
KC25
KD29
K03r ,
K035
K036
K041
K0*2
Fox a
consult
Highlight 1 - F and
K SOFT HAMMER
WASTES (as of June 8, 1989)*
Wasta
Physical Fcrm
wastewaters
wastewaters and nonwaBtewaters
wastewat«r& «md nocwastewaters
wastewater* and nonwastewaters
wastewaters
wastawaters
wastewaters
wastawaters and nonwastewatars
wastewaters
wastewaters
wastewaters
wast«water»
wastewater^ end nortwastewaters
wastewate-rs aiud nonwastewaters
wastewaters
wastewaters and nonwastewaters
wastewaters and nonwastewatars
complete listing of soft hanrner
with EPA Headquarters.
Code
K046
K060
K06I
KD69
KQ73
K083
KOB4
KOB5
KD86
K095
KC96
K097
K098
K1Q1
K102
K105
K106
waste restrictions.
Physical Form
wastewaters and nonwastewaters
wastewaters
wastewaters
wastewaters and nonwa&tewaterK
wastewaters and nonwast&waters
wastewaters and nonwastewaters
wastewaters and nonwastswaters
wastewaters and nonwastewaters
wastewaters
wastewaters
wastewaterz
wastewaters and nonwastewaters
wastewaters acid nonwastewat-ers
nonw a& t. ewa t « r fi
nonwastewaters
wastawaters and nonwast*waters
wastewaters and nonwastewaters
including all P and U wastes that are restricted,
-------
RCRA §3005(j)(4), which requires that the unit be
designed and operated such that there will be no
migration of hazardous constituents into ground or
surface water.
Waivers granted to units utilizing aggressive
biological treatment (RCRA §3005(j)(3)) or
undergoing corrective action (RCRA §3005(j)(13))
are not automatically considered equivalent to units
in compliance with the minimum technology
requirements. However, they may satisfy the
§3004(o)(2) equivalency standard on a unit-by-unit
basis.
(2) Site managers certify that they have made a good
faith effort to locate and to contract with treatment
and recovery facilities for treatment that is
"practically available." If such treatment is
"practically available," the manager must use the
best, practically available treatment (see Highlight
2) to treat the wastes before they are land
disposed. If there is no "practically available"
treatment, the soft hammer wastes may be disposed
of without treatment in units meeting the
requirements listed in (1).
Highlight 2 - GUIDANCE TO "PRACTICALLY
AVAILABLE" AND "BEST* TREATMENT
«Pra» coitsidcead
practical; and
- A ratio of 1.5 or I
-------
Highlight 3 « SOIT HAMMER NOTIFICATION, CERTIFICATION, AND DEMONSTRATION
REQUIREMENTS
RHJUZREMEHT
SEHT IQ
WHEN
REQUIRED IKFOBMATIOH
IF HOD DISPOSAL OCOJBS JS SURFACE ZHPOUHDHEHT OR LAHDFIU, UHITS
(off-sit* only}
Treatment OE
disposal
facility
receiving
waste.
With each
waste
shipment
Ratification. that the waste is a soft hammer
waste, Specific information includes:
- EPA hazardous waste number?
- Any applicable- prohibitions (e.g., soft
- Manifest number associated with shipment of
waste; and
analysis data, where available.
Ttpj:' pr ac fct c ally
available ':;'-
Co££-site only)
EPA Regional
Adwiniistrator
and
Disposal
facility
:receiving
waste
Afc tiBie of
: first:waste
shipment and
copy with
each waste
shipment
If treatment jg
practically
EPA Regional
Administrator
and
. (of £~sit* only)
facility
waste
At tim« of
first wasta
shipment and
with.
w«ste
shipment
should appear AS followsT
"EPA certifies tirxter penalty o£ law that the
requirements of 40 CFR Z6S.8(a3(l> have been (net
and th«t disposal tu 8 landfill or surface
impoundment is the- only practical alternative to
treatment currently available> $PA believes that
the information submitted is true, accurate, and
complete, EPA i& aware that there are significant
penalties for submitting false information,
including the posBlJbility of fine and
impci zoninefit,, "
Certification should appear as follows;
"EPA certifies under penalty of law that the
racquirements of,40 CFR 2£S,8^a){l) have been .
mat «n4 that- fcoe asency has. contracted to treat
its waste tot will otherwise provide treatment)
by the practically available technology which
yields the greatest- «nyiror«i»ntal benefit, as
indicated In its demonstration. EPA believes that
the information submitted is true, accurate, and
complete. EPA is aware that there are significant
penalties for submitting false information,
uiclttdtng th*' possibxlifcy of fin* «nd
imprisonment."
DEMQHSrEATIQH -
If no treatoeat
Is available
(of f-svte and
cm-site? .
DEMtWStBAf B* -
If treatment.
is available
toff-site asd
on.~site>
EEA. ReRiaiial- At time of . List, of facilities and facility officials.
Administrator first waste contacted, addresses, telephone numbers, and
shipment contact dates. Also, a written discussion of
! when txeatoent or recovery is not practical
: f«r the waste.
BEA. Regional At time of tist of facilities and facility officials
Adttinistrator first waste contactetJ, addresses, telephone numbers, and
shipment contact dates. Provide information on the
chosen treatment technology selected because
It provides the greatest environmental benefit.
In both cases, site managers must meet the
appropriate soft hammer notification, certification,
and demonstration requirements.
If the waste will be land disposed in a unit other
than a surface impoundment or landfill (e.g., waste
pile), the waste must, at a minimum, be treated below
the California list prohibition level before being land
disposed. The soft hammer restrictions do not apply,
and a site manager does not have to meet the soft
hammer notification, certification, and demonstration
requirements.
More information on California list wastes and
their overlap with soft hammer wastes is found in LDR
Guide #2. A step-by-step process to comply with the
soft hammer restrictions is shown in Highlight 4.
-------
Highlight 4 - IDENTIFYING SOFT HAMMER WASTE RESTRICTIONS
Does
the unit have
an equivalent \ Mo
retrofitting variance
under RCRA §
WIN
me waits
bodtopoaadof
In a Mjrface Im-
poundment or
landfill?
Find another surface
Impoundment or landtM unit
that compiles with the minimum |
technology restriction or
another type of land - beaed
unit
Determine the best treatment
that la practically available and
contract with that facility to
handle the wast*.
Meet California II tt
standards. (Soft
hammer provisions do
not apply.)
If necessary, treat to
California list
Dispose of the wast* In
me minimum technology -
compliant unit
If necessary, comply
w«n other and disposal
restrictions
-------
A EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347.3-O5FS
July 1989
Superfund LDR Guide #5
Determining When Land
Disposal Restrictions (LDRs)
Are Applicable to CERCLA
Response Actions
CERCLA Section 121(d)(2) specifies that cm-site Superfund remedial actions shall attain "other Federal standards,
requirements, criteria, limitations, or more stringent State requirements that are determined to be legally applicable
or relevant and appropriate (ARAR) to the specified circumstances at the site." In addition, the National Contingency
Plan (NCP) requires that on-site removal actions attain ARARs to the extent practicable. Off-site removal and
remedial actions must comply with legally applicable requirements. This guide outlines the process used to determine
whether the Resource Conservation and Recovery Act (RCRA) land disposal restrictions (LDRs) established under
the Hazardous and Solid Waste Amendments (HSWA) are "applicable" to a CERCLA response action. More detailed
guidance on Superfund compliance with the LDRs is being prepared by the Office of Solid Waste and Emergency
Response (OSWER).
For the LDRs to be applicable to a CERCLA
response, the action must constitute placement of a
restricted RCRA hazardous waste. Therefore, site
managers (OSCs, RPMs) must answer three separate
questions to determine if the LDRs are applicable:
(1) Does the response action constitute
placement?
(2) Is the CERCLA substance being placed
also a RCRA hazardous waste? and if so
(3) Is the RCRA waste restricted under the
LDRs?
Site managers also must determine if the CERCLA
substances are California list wastes, which are a
distinct category of RCRA hazardous wastes restricted
under the LDRs (see Superfund LDR Guide #2).
(1) DOES THE RESPONSE CONSTITUTE
PLACEMENT?
The LDRs place specific restrictions (e.g., treatment
of waste to concentration levels) on RCRA hazardous
wastes prior to their placement in land disposal units.
Therefore, a key determination is whether the response
action will constitute placement of wastes into a land
disposal unit. As defined by RCRA, land disposal
units include landfills, surface impoundments, waste
piles, injection wells, land treatment facilities, salt dome
formations, underground mines or caves, and concrete
bunkers or vaults. If a CERCLA response includes
disposal of wastes in any of these types of off-site land
disposal units, placement will occur. However,
uncontrolled hazardous waste sites often have
widespread and dispersed contamination, making the
concept of a RCRA unit less useful for actions
involving on-site disposal of wastes. Therefore, to
assist in defining when "placement" does and does not
occur for CERCLA actions involving on-site disposal
of wastes, EPA uses the concept of "areas of
contamination" (AOCs), which may be viewed as
equivalent to RCRA units, for the purposes of LDR
applicability determinations.
An AOC is delineated by the areal extent (or
boundary) of contiguous contamination. Such
contamination must be continuous, but may contain
varying types and concentrations of hazardous
substances. Depending on site characteristics, one or
more AOCs may be delineated. Highlight 1 provides
some examples of AOCs.
HigfaBgat Is EXAMPLES OF AREAS OF
CONTAMINATION (AOCs)
» A waste source (e.g., waste pitr landfill,
waste pile) and the surrounding
contaminated soil
• A waste source, and the sediments in a
stream contaminated by the source, where
the contamination is continuous from the
source to the sediments.*
» Several lagoons separated only by dikes,
wheie the dikes are contaminated and the
lagoons share a common liner.
* The AOC does not include any contaminated surtace
or gratmd water that may be associated with the land-
based waste source.
-------
For cm-site disposal, placement occurs when wastes
are moved from one AOC (or unit) into another AOC
(or unit). Placement does not occur when wastes are
left in place, or moved within a single AOC. Highlight
2 provides scenarios of when placement does and does
not occur, as defined in the proposed NCP. The
Agency is current Devaluating the definition of
placement prior to the promulgation of the final NCP,
and therefore, these scenarios are subject to change.
Highlight 2: PLACEMENT
Placement does occur when wastes are:
• Consolidated from different
AQOs into a single AOC;
* Moved outside oC aa AQC (for
treatment or storage, for
exaflipfe) and returned to the
same or a different AOC; or
« Excavated from an AOC, placed
in a/ separate unit, saeh. as an
incinerator or tank that is within
the AOC, and redeposited into
the same AQC,
Placement does not occur when wastes
are:
Treated in $ifu;
Capped in place;
Consolidated within the AOC; or
Processed within the AOC (b\it
not in a separate unit, such as a
tank) to improve its structural
stabUity (e,g., for capping or to
support Jieavy machinery),
In summary, if placement on-site or off-site does
not occur, the LDRs are not applicable to the
Superfund action.
(2) IS THE CERCLA SUBSTANCE A RCRA
HAZARDOUS WASTE?
Because a CERCLA response must constitute
placement of a restricted RCRA hazardous waste for
the LDRs to be applicable, site managers must evaluate
whether the contaminants at the CERCLA site are
RCRA hazardous wastes. Highlight 3 briefly describes
the two types of RCRA hazardous wastes -listed and
characteristic wastes.
Highlight 3: RCRA HAZARDOUS WASTES
A RCRA solid waste* is hazardous if it is
listed or exhibits a Jiazardous characteristic.
Listed RCRA Hazardous Wastes
Any waste Ested in Subpart D: of 40
CFR 261, kchidingr ;
: m F waste codes (Part 261.31)
I •• K waste codes (Part 26132}
* P waste codes (Part 26133{e)) . .
1 » . : ; !^J waste, codes (Part 26133(1)) '. |
Characteristic RCRA Hazardous Wastes
Any wasle exhibiting one of the following
characteristics, as 4efwe
-------
remedial site investigations should be sufficient for this
purpose.) For listed hazardous wastes, if manifests or
labels are not available, this evaluation likely will
require fairly specific information about the waste (e.g.,
source, prior use, process type) that is "reasonably
ascertainable" within the scope of a Superfund
investigation. Such information may be obtained from
facility business records or from an examination of the
processes used at the facility. For characteristic wastes,
site managers may rely on the results of the tests
described in 40 CFR 261.21 - 261.24 for each
characteristic or on knowledge of the properties of the
substance. Site managers should work with Regional
RCRA staff, Regional Counsel, State RCRA staff, and
Superfund enforcement personnel, as appropriate, in
making these determinations.
In addition to understanding the two categories of
RCRA hazardous wastes, site managers will also need
to understand the derived-from rule, the mixture rule,
and the contained-in interpretation to correctly identify
whether a CERCLA substance is a RCRA hazardous
waste. These three principles, as well as an
introduction to the RCRA delisting process, are
described below.
Derived-from Rule (40 CFR 2613(c)(2))
The derived-from rule states that any solid waste
derived from the treatment, storage, or disposal of a
listed RCRA hazardous waste is itself a listed
hazardous waste (regardless of the concentration of
hazardous constituents). For example, ash and
scrubber water from the incineration of a listed waste
are hazardous wastes on the basis of the derived-from
rule. Solid wastes derived from a characteristic
hazardous waste are hazardous wastes only if they
exhibit a characteristic.
Mixture Rule (40 CFR 2613 (a) (2))
Under the mixture rule, when any solid waste and
a listed hazardous waste are mixed, the entire mixture
is a listed hazardous waste. For example, if a
generator mixes a drum of listed F006 electroplating
waste with a non-hazardous wastewater (wastewaters
are solid wastes - see Highlight 3), the entire mixture
of the F006 and wastewater is a listed hazardous waste.
Mixtures of solid wastes and characteristic hazardous
wastes are hazardous only if the mixture exhibits a
characteristic.
Contained-in Interpretation (OSW Memorandum dated
November 13, 1986)
The contained-in interpretation states that any
mixture of a non-solid waste and a RCRA listed
hazardous waste must be managed as a hazardous
waste as long as the material contains (i.e., is above
health-based levels) the listed hazardous waste. For
example, if soil or ground water (i.e., both non-solid
wastes) contain an F001 spent solvent, that soil or
ground water must be managed as a RCRA hazardous
waste, as long as it "contains" the F001 spent solvent.
Delisting (40 CFR 26020 and 22)
To be exempted from the RCRA hazardous waste
"system," a listed hazardous waste, a mixture of a listed
and solid waste, or a derived-from waste must be
delisted (according to- 40 CFR 260.20 and .22).
Characteristic hazardous wastes never need to be
delisted, but can be treated to no longer exhibit the
characteristic. A contained-in waste does not have to
be delisted; it only has to "no longer contain" the
hazardous waste.
If site managers determine that the hazardous
substance(s) at the site is a RCRA hazardous waste(s),
they should also determine whether that RCRA waste
is a California list waste. California list wastes are a
distinct category of RCRA wastes restricted under the
LDRs. (See Superfund LDR Guide #2.)
(3) IS THE RCRA WASTE RESTRICTED
UNDER THE LDRs?
If a site manager determines that a CERCLA waste
is a RCRA hazardous waste, this waste also must be
restricted for the LDRs to be an applicable
requirement. A RCRA hazardous waste becomes a
restricted waste on its HSWA statutory deadline or
sooner if the Agency promulgates a standard before
the deadline. Because the LDRs are being phased in
over a period of time (see Highlight 4), site managers
may need to determine what type of restriction is in
-------
Highlight 4: LDR STATUTORY DEADLINES
Waste
Statutory Deadline
Spent Solvent and Dicuon-
Conlainiog Wastes
California List Wastes
First Third Wastes
Spent Solvent, Dtoxin-
Contammg, ami California
List Soil and Debris From
CERCLA/RCRA Corrective
Actions
Second Third Wastes
Third Third Wastes
Newly Identified
Wastes
November 8, 1986
July 8, 1987
August 8,1988
November $, 1988
Jtmc 8, 1989
May 8, W9&
Within 6 months of
identification as a
hazardous waste
effect at the time placement is to occur. For example,
if the RCRA hazardous wastes at a site are currently
under a national capacity extension when the CERCLA
decision document is signed, site managers should
evaluate whether the response action will be completed
before the extension expires. If these wastes are
disposed of in surface impoundments or landfills prior
to the expiration of the extension, the receiving unit
would have to meet minimum technology requirements,
but the wastes would not have to be treated to meet
the LDR treatment standards.
APPLICABILITY DETERMINATIONS
If the site manager determines that the LDRs are
applicable to the CERCLA response based on the
previous three questions, the site manager must: (1)
comply with the LDR restriction in effect, (2) comply
with the LDRs by choosing one of the LDR
compliance options (e.g., Treatability Variance, No
Migration Petition), or (3) invoke an ARAR waiver
(available only for on-site actions). If the LDRs are
determined not to be applicable, then, for on-site
actions only, the site manager should determine if the
LDRs are relevant and appropriate. The process for
determining whether the LDRs are applicable to a
CERCLA action is summarized in Highlight 5.
Highlight 5 - DETERMINING WHEN LDRS
ARE APPLICABLE REQUIREMENTS
Does
placement occur?
LDRs are not
applicable
LDRs are not
applicable:
determine if
they are
relevant and
appropriate
(on-site
response only)
Is the
CERCLA waste a
RCRA hazardous or
California list
waste?
Is the
HCRA hazardous
waste restricted
under the LDRs?
LDRs are not
applicable
LDRs are applicable
requirements
-------
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Directive: 9347 3-O6FS
July 1989
3EPA
Superfund LDR Guide #6A
Obtaining a Soil and Debris
Treatability Variance for
Remedial Actions
CERCLA response actions must comply with the RCRA Land Disposal Restrictions (LDRs) when they are determined to
be applicable or relevant and appropriate requirements (ARARs). (The Agency has decided, however, that the LDRs are not
relevant and appropriate for soil and debris wastes at this time.) For the LDRs to be applicable, the CERCLA response action
must constitute placement of a restricted RCRA hazardous waste (see LDR Guide #5). Compliance with the LDRs will involve
either meeting the LDR treatment standards, other LDR restrictions (e.g., soft hammers), or satisfying the requirements of one
of the other alternate LDR compliance options (e.g., Treatability Variance, Equivalent Treatment Method Petition). This guide
outlines the process for obtaining and complying with a Treatability Variance for soil and debris that are contaminated with
RCRA hazardous wastes for which the Agency has set treatment standards. More detailed guidance on Superfund compliance
with the LDRs is being prepared by the Office of Solid Waste and Emergency Response (OSWER).
BASIS FOR A TREATABILITY VARIANCE
When promulgating the LDR treatment standards, the
Agency recognized that treatment of wastes to the LDR
treatment standards would not always be possible or
appropriate. In addition, the Agency recognized the
importance of ensuring that the LDRs do not unnecessarily
restrict the development and use of alternative and
innovative treatment technologies for remediating hazardous
waste sites. Therefore, a Treatability Variance process (40
CFR §268.44) is available to comply with the LDRs when
a Superfund waste differs significantly from the waste used
to set the LDR treatment standard such that:
• The LDR standard cannot be met; or
• The best demonstrated available technology (BDAT)
used to set the standard is inappropriate for the waste.
Superfund site managers (OSCs, RPMs) may need to
seek a Treatability Variance to comply with the LDRs when
managing restricted soil and debris wastes (see Highlight 1)
because the LDR treatment standards are based on treating
less complex matrices of industrial process wastes (except
for the dioxin standards, which are based on treating
contaminated soil). A Treatability Variance does not
remove the requirement to treat restricted soil and debris
wastes. Rather, under a Treatability Variance, alternate
treatment levels are established based on data from actual
treatment of soil, or best management practices for debris.
Although the specific justification required to obtain a
Treatability Variance may differ from site-to-site, site
managers generally will make this justification on the basis
of: (1) Available information on the performance capabilities
of the technology(ies) being considered; (2) Site-specific
conditions that may affect the implementation or
effectiveness of those technologies; and (3) The remediation
goals of the CERCLA response action.
At many sites, data from treatability studies conducted
during the RI/FS will suffice as justification for obtaining
a Treatability Variance. For example, if data from
treatability studies indicate that the full-scale operation of
a specific treatment technology cannot consistently meet the
LDR treatment standards for all soil and debris (including
the most contaminated waste areas of the site), site
managers may use those data as justification to obtain a
Treatability Variance for those contaminated soils and debris
that cannot be treated to the standard.
When site-specific treatability study data are not
available, surrogate data from the application of technologies
to wastes of similar types may be used to assess the
effectiveness of treating soil and debris and help site
managers determine whether a Treatability Variance is
warranted. Potential surrogate data sources include: (1)
Treatability data bases, such as the one developed by EPA's
Risk Reduction Engineering Laboratory; (2) Results from
Highllgbt 1: SOIL AND DEBRIS
Soil. Soil is defined as materials that are
primarily of geologic origin such as sand, silt,
loam, or day, that are indigenous to the natural
geologic environment at or near the CERCLA
site. (In many cases, soil is mixed with liquids,
sludges, and/or debris.)
Debris. Debris is defined as materials that are
primarily non-geologic in origin, such as grass,
trees, stumps, and man-made materials such as
concrete, clothing, partially buried whole or empty
drums, capacitors, and other synthetic manufac-
tured materials, such as liners. (It does not include
synthetic organic chemicals, but may include
materials contaminated with these chemicals).
-------
treatability studies and from remedial actions conducted at
other sites; and (3) Existing literature that describes the
effectiveness/limitations of specific treatment technologies.
Unless the surrogate data show that a technology operated
at full scale can consistently meet the LDR treatment
standards for all soil and debris that it will be called upon
to treat, site managers should seek a Treatability Variance.
In some cases (especially when treatability studies are
not conducted as part of the RI/FS), data that indicate
whether a treatment technology or process can attain the
LDR treatment standards may not be available. This
situation may arise when an innovative technology is being
considered, or when a "demonstrated" technology is being
applied to wastes for which performance data do not exist.
Under such circumstances, site managers may select a
particular technology as the preferred alternative, if there
are technically sound reasons to believe that it will perform
effectively. The specific selection criteria (e.g., long- and
short-term effectiveness, implementability) upon which the
rationale would be based should be included when profiling
the alternative in the Detailed Analysis chapter of the FS
report. When there are no actual performance data
available that indicate the LDR treatment standards can be
met consistently for all soil and debris, site managers should
seek a Treatability Variance. Site specific conditions need
to be considered and documented at sites where a
Treatability Variance is sought.
HOW TO OBTAIN A TREATABILITY VARIANCE FOR
SOIL AND DEBRIS WASTES
Once it is determined that a CERCLA waste is a soil
or debris, and that a Treatability Variance will be necessary
(i.e., the LDRs are applicable for the response action
addressing soil or debris wastes and there is a reasonable
doubt that the standards can be met consistently for all the
soil and debris wastes requiring treatment), site managers
should initiate the process of obtaining a Variance. For
remedial actions, the need for a Treatability Variance should
be evident during the RI/FS as information on waste types
is collected, potential waste management strategies are
evaluated, and the determination of whether the LDRs are
applicable is made.
Obtaining a Treatability Variance
Obtaining a Treatability Variance for remedial actions
will involve: (1) documenting the rationale and justification
for the Treatability Variance in the FS Report: (2)
announcing the intent to seek a Treatability Variance in the
Proposed Plan: and (3) granting of the Treatability Variance
by the Regional Administrator or the Assistant
Administrator/OSWER when the ROD is signed.
Highlight 2— TSSOBSKFKK TO BE TSCUJDED III THE DOCIMEUTATIOH O? A SOU. ABB DEBRIS
a* j» HI/FS mxxt FOB ai-$m van)orr-srce
08-SIIE . ;
•Description of- the Proposed Action t«,'s.
toe an tSR Treatability VaKuowe; otwter ;4$ CER
•A statement of need and justification for th» proposed action C».-g., "data do not indicate that fall scale treatment
can consistently attain the U>& treatment standards for. all waste area*, Including:; *t»e.: most: contaminated- are«Si: afcsth*
site.") ;. ;
»A description of ths soil or debris waste {e.g.. information on the pbysuxal wxl:!oh«micat::OO)Kraot«sristicB of the waste.
including waste analysis data} and fc OB able to achieve the LOR treatment sfcandak,
OJFT-3ITE ;
For off-sita Tteatability ?ariancss, the dtocumentation
and conihined with th« Jtollowilig information in a separate document.!
abovs should ha extracted front the EI/TS report
•Petitioner's name and address and identification of an authorized contact person (if different};
•Statement of petitioner's interest in obtaining a Treatability Variance; and
4 This document may be prepared after the ROD is signed (and Treatability Variance sweated but. wili-Twed; to fee coropi3 « to the reoeivlnfc triataatt ofr disjicsai facility.
-------
FS Report
The FS Report should contain the necessary information
(see Highlight 2) to justify a Treatability Variance using,
where appropriate, data and findings from the RI Report.
In the Detailed Analysis of Alternatives chapter of the FS
Report, a general discussion of why a Treatability Variance
is necessary should be included in the description of each
alternative for which a variance is required. This
description also should specify the treatment level range(s)
that the treatment technology would attain for each waste
constituent restricted under the LDRs and the primary
contaminants of concern identified during the Superfund
baseline risk assessment. (The more specific and detailed
information, such as relevant waste analysis data from
sampling, should be placed in an appendix to the report.)
In addition, under the Comparative Analysis of Alternatives
section, when discussing the "Compliance with ARARs
Criteria," site managers should indicate which alternatives
will require a Treatability Variance to comply with the
LDRs.
."SAMPLE-
Ifighligbt :3
PROPOSED
Descrition of Alternatives section
FOR THE
: This alternative mil comply with, the LDRs through
eiT/ealabifify Variancevnder 40 €FR 268.44* This
Variance mil result in the use of {specify technology]
to attain the Agency's interim "treatment
: levels/ranges" for the contaminated soil at the site
(see Defatted Analysis of Alternatives Chapter of the
FS Report for die specific treatment levels for each
constituent). :„ >
Evaluation of Alternatives section, under "Compliance
with ARARs"
The LDRs are ARARs for [Enter number] of [Enter
total number of alternatives] remedial alternatives
being considered, {Enter number} of; the (Enter
total number of alternatives} aitematives would
comply with the JLDRs[ through a Treatability
Variance.
Commanitv's Role in tfyft ftfcfection Process section
This Proposed Ptan also seeks comment on the use
of a Treatability Variance to comply with LDRs for
each of the alternatives for which one is required
Proposed Plan
The intent to seek a Treatability Variance for a
particular alternative should be clearly stated in the
Description of Alternatives section of the Proposed Plan.
Because the Proposed Plan solicits public comment on all
of the alternatives and not just the preferred option, the
intent to obtain a Treatability Variance should be identified
for every alternative for which a Variance is required. This
opportunity for public comment on the Proposed Plan fulfills
the requirements for public notice and comment on the
Treatability Variance as required in RCRA §268.44. Sample
language for the Proposed Plan is provided in Highlight 3.
Record of Decision
A Treatability Variance is granted and becomes effective
when the Record of Decision (ROD) is signed by the
Regional Administrator or Assistant Administrator/
OSWER. The documentation provided in the ROD for a
Treatability Variance should be a concise synopsis of the
information provided in the FS Report. In the Description
of Alternatives section, as part of the discussion of major
applicable requirements associated with each remedial
option, site managers should include a statement (as was
done in the FS report) that explains why a Treatability
Variance is justified and should list the treatment level
range(s) that the selected technology will attain for each
constituent. Sample language for the ROD is provided in
Highlight 4.
Highlight 4: SAMPLE LANGUAGE FOR A
RECORD OF DECISION
Description of Alternatives section:
Because existing and available data do not
demonstrate that the full-scale operation of this
treatment technology can attain the LDR treatment
standards consistently for afl soil and debris wastes
to be addressed by this action, this alternative will
ccmpfy with the LDRs through a Treatability
Variance for the wastes that cannot be treated to
meet the standard. The treatment level range
established through a Treatability Variance that
[Enter technology] will attain for each constituent
as determined by the mdicated analyses are:
Barium ft/ - 40ppm (TCLP)
Mercury 0.0002 - 0.008ppm (TCLP)
Vanadium 0.2 - 22 ppm (TCLP)
TCE 95-99.9% reduction (TWA)
Cresols 90-993% reduction (TWA)
In the Comparative Analysis section, under "Compliance
with ARARs," site managers should indicate which of the
alternatives will comply with the LDRs through a
Treatability Variance. Under the Statutory Determination
section (Compliance with ARARs), site managers should
identify the LDRs as an ARAR and indicate that a
Treatability Variance is being used to comply.
-------
HOW TO COMPLY WITH A TREATABILITY VARIANCE
FOR SOIL AND DEBRIS WASTES
Soil Wastes
Once site managers have identified the RCRA waste
codes present at the site, the next step is to identify the
BDAT constituents of those RCRA waste codes found at
the site, and to divide these constituents into one of the
structural/functional groups shown in column 1 of Highlight
5. After dividing the BDAT constituents into their
respective structural/functional groups, the next step is to
compare the concentration of each constituent with the
threshold concentration (see column 3 of Highlight 5) and
to select the appropriate concentration level or percent
reduction range. If the concentration of the restricted
constituent is less than the threshold concentration, the
waste should be treated to within the concentration range.
If the waste concentration is above the threshold, the waste
should be treated to reduce the concentration of the waste
to within the specified percent reduction range. Once the
appropriate treatment range is selected, the third step is to
identify and select a specific technology that can achieve the
necessary concentration or percent reduction. Column 5 of
Highlight 5 lists technologies that (based on existing
performance data) can attain the alternative Treatability
Variance levels.
During the implementation of the selected treatment
technology, periodic analysis using the appropriate testing
procedure (i.e., total waste analysis for organics and TCLP
for inorganics) will be required to ensure the alternate
treatment levels for the BDAT constituents requiring control
are being attained and thus can be land disposed without
further treatment.
Highlight 5. ALTERNATE TREATABIUTY VARIANCE LEVELS AND
TECHNOLOGIES FOR STRUCTURAL/FUNCTIONAL GROUPS
Structural
Functional
Groups
: .^•Sg'jBS'^j^fe^raiiBii^a
Halogenated
Non-Polar
Aromatics
Dioxins
PCBs
Herbicides
Halogenated
Phenols
Halogenated
Aliphatics
Halogenated
Cyclics
Nitrated
Aromatcs
Heterocyclics
Polynuclear
Aromatics
Other Polar
Organics
Antimony
Arsenic
Barium
Chromium
Nickel
Cadmium
Lead
Mercury
Concentration
Rang*
(ppm)
0.5 - 10
0.00001 - 0.05
0.1 - 10
0.002 - 0.02
0.5-40
0.5-2
0.5-20
2.5 - 10.0
0.5-20
0.5-20
0.5 - 10
•••i
pilff8tjfi|Hl
0.1 - 0.2
0.27- 1
0.1 -40
0.5-6
0.5-1
0.005
0.2-22
0.2-2
0.1 -3
0.0002 - 0.008
Threshold
Concentration
(ppm)
miiffililm$$M
100
0.5
100
0.2
400
40
200
10.000
200
400
100
2
10
400
120
20
008
200
40
300
0.06
Percent
Reduction
Range
^^^PBjHJBmBS^rjSr^^S
^l^^^^gJBgj^^tJfflBff^
^^^^^^^^^^^^
90-99.9
90-99.9
90-99.9
90-99.9
90-99
95-98.9
90-99.9
99-99.99
90-99.9
95-99.9
90-99.9
ffiMffljBSHISBSSB^^B
InmmMBffl^BM^
90-99
90-99.9
90-99
95-99.9
95-99.9
90-99
90-99
95-99.9
99-99.9
90-99
Technologies that achieved
recommended effluent
concentration guidance**
BHBni^MI^BBnHn^^nBBBBII^^H9HinMRHmHHHH^^^^^^^^^^^^MmBVm9M
BfflftMjB^jjflEJjjjj^ftMMM^
^^^^HBPWm^^^^ffll^MlBT^^^^^S^FJ
Biological Treatment Low Temp. Stripping,
Soil Washing. Thermal Destruction
Biological Treatment Dechtomation, Soil Washing.
Thermal Destruction
Thermal Destruction
Biological Treatment Low Temp. Strippng,
Soil Washing. Thermal Destruction
Biological Treatment Low Temp. Strippng. Sol Washing.
Thermal Destruction
Thermal Destruction
Biological Treatment Soil Washing
Thermal Destruction
Biological Treatment Low Temp. Stnppng. Sod Washing.
Thermal Destruction
Biological Treatment Low Temp. Stripping. Sod Washing.
Thermal Destruction
Biological Treatment Low Temp. Stripping. Soil Washing.
Thermal Destruction
M^SmmlSmiK^mXm^mlma^^^K^SimsgmKmmi
t mmobilization
Immobilization. Soil Washing
Immobilization
Immobilization. Soil Washing
Immobilization. Soil Washing
Immobilization
Immobilization
Immobilization, Soil Washing
Immobilization. Soil Washing
Immobilization
• TCLP also may be used when evaluating wage with relatively low levels of organics that have been treated throu&i an immobilization
process.
•• Other lechnologes may be toed if treatabilay studies or other information indicate that they can achieve the necessary conctntraaon or
-------
Because of the variable and uncertain characteristics
associated with unexcavated wastes, from which only
sampling data are available, treatment systems generally
should be designed to achieve the more stringent end of the
treatment range (e.g., 0.5 for chromium, see column 2 of
Highlight 5) to ensure that the treatment residuals from the
most contaminated portions of the waste fall below the "no
exceedance" levels (e.g., 6.0 ppm for chromium). Should
data indicate that the treatment levels set through the
Treatability Variance are not being attained (i.e., treatment
residuals are greater than the "no exceedance" level), site
managers should consult with Headquarters.
Under some circumstances, the need to obtain a
Treatability Variance may not be evident until after a ROD
is signed. This situation may arise when: (1) initial
assumptions made during the RI/FS that the LDR
treatment standards would be met are proven to be
incorrect during the remedial design/action (RD/RA) phase;
or (2) previously undiscovered evidence is obtained during
RD/RA that the CERCLA waste contains a RCRA
restricted waste and the LDRs are then determined to be
applicable but cannot be met. In such situations, a site
manager would need to prepare an explanation of significant
differences (ESD) from the ROD and make it available to
the public to explain the need for a Treatability Variance.
In addition, unlike other ESDs that do not require public
comment under CERCLA section 117(c), if the ESD
involves granting a Treatability Variance, an opportunity for
public comment would be required to fulfill the public
notice and comment requirements for a Treatability
Variance under 40 CFR §268.44.
Debris Wastes
Site managers should use the same process for obtaining
a Treatability Variance described above for types of debris
that are able to be treated to the alternate treatment levels
(e.g., paper, plastic). However, for most types of debris
(e.g., concrete, steel pipes), which generally cannot be
treated, site managers should use best management
practices. Depending on the specific characteristics of the
debris, these practices may include decontamination (e.g.,
triple rinsing) or destruction.
LDRs IN SUPERFUND ACTIONS
Because of the important role the LDRs may play in
Superfund cleanups, site managers need to incorporate early
in the RI/FS the neccesary investigative and analytical
procedures to determine if the LDRs are applicable for
remedial alternatives that involve the "placement" of wastes.
When the LDRs are applicable, site managers should
determine if the treatment processes associated with the
alternatives can attain either the LDR treatment standards
or the alternate levels that would be established under a
Treatability Variance.
Site managers must first evaluate whether restricted
RCRA waste codes are present at the site, identify the
BDAT constituents requiring control, and compare the
BDAT constituents with the Superfund primary constituents
of concern from the baseline risk assessment. This process
identifies all of the constituents for which remediation may
be required. Once the viable alternatives are identified in
the FS, site managers should evaluate those involving the
treatment and placement of restricted RCRA hazardous
wastes to ensure their respective technology process(es) will
attain the appropriate treatment levels (i.e., either LDR
treatment standard or Treatability Variance alternate
treatment levels for restricted RCRA hazardous wastes)
and, in accordance with Superfund goals, reductions of 90
percent or greater for Superfund primary contaminants of
concern. The results of these evaluations are documented
in the Proposed Plan and ROD. An illustration of the
integration of LDRs and Superfund is shown in Highlight
6. An example of the process for complying with a
Treatability Variance for contaminated soil and debris is
presented in Highlight 7.
Highlight 6.
LDRs in the RI/FS Process
mire
Analysis
Concurrent
u»
EvafcwVons
Evaluate
nature and
extent of sMe
cofiteiifilnAtion
f\^AMwlmA iMftU*ftt
UOTvnninv wnicn
restricted RCRA
hazardous wattes
are present
Identify
primary
contaminant!
of coocwn
Develop watt*
nunaQ+ni6fit
"* alternatives tor ""
the sit*
Compare Supertund 1
contaminant* of I
"• concern with BDAT 1~*
constituents requiring I
Evaluat
If they
"* reducfl
volume
Evaluate whether 1
remedial alterna- j _
ttve Involve I"""1
"placement" 1
be alternatives; determine
will result In significant
oos of toxtctty, mobility, or
of primary contaminants
Select remedy
In ROD
Determine If technology
wlH attain LOR treatment
standards or alternative
tltMtRMflt !•¥•!•
established through a
TreaMMHIy Variance
-
Treatability
Variance granted
when ROD Is
signed
-------
Highlight 7: IDENTIFICATION OF TREATMENT LEVELS FOR A TREATABILITY VARIANCE
As part of the RI, it has been determined that soils in one location at a site contain F006 wastes and cresols (which site records indicate were
an F004 waste). Arsenic also was found in soils at a separate location. The baseline risk assessment identified cadmium, chromium, lead, and
arsenic as primary contaminants of concern. The concentration range of all of the constituents found at the site included:
Constituent
Total Concentration
(me/kg)
TCLP
Total Concentration TCLP
Constituent (nag/kg) (mg/11
Cadmium
Chromium
Cyanides
Lead
2.270 - 16,200
3,160 - 4,390
80 - 150
500 - 625
120 - 146
30 - 56
1 - 16
2 - 12.5
Nickel
Silver
Cresols
Arsenic
100 - 140
1 - 3
50 - 600
800 - 1,900
1 - 6.5
.25 - 4
3 - 9
Four remedial alternatives are being considered: (1) Low temperature thermal stripping of soil contaminated with cresols followed by
stabilization of the ash; (2) Stabilization of the soil in a mobile unit; (3) In-situ stabilization; and (4) Capping of wastes. Each of these
alternatives must be evaluated to determine if they will result in significant reduction of the toxicity, mobility, or volume of the waste; whether
"placement" occurs; and, if "placement" occurs, whether the treatment will attain LDR treatment standards or alternative treatment levels
established through a Treatability Variance for the BOAT constituents requiring control.
STEP 1: IDENTIFY THE RESTRICTED CONSTITUENTS
• Because F006 and F004 wastes have been identified at the site, the Superfund site manager must meet the treatment standards or
alternate treatment levels established through a Treatability Variance for the BOAT constituents. These constituents are: Cadmium,
Chromium, Lead, Nickel, Silver, and Cyanide for F006 and Cresols for F004.
AND DIVIDE THE CONSTITUENTS INTO THEIR STRUCTURAL/FUNCTIONAL GROUPS (sec Highlight 4):
• AH of the F006 constituents are in the Inorganics structural/functional group.
• Cresols are in the Other Polar Organic Compounds structural/functional group.
• In accordance with program goals, the preferred remedy also should result in the effective reduction (i.e., at least 90 percent) of all
primary constituents of concern (i.e., Cadmium, Chromium, Lead, and Arsenic).
STEP 2: COMPARE THE CONCENTRATION THRESHOLD FOUND IN HIGHLIGHT 5 TO THE CONCENTRATIONS FOUND AT THE
SITE AND CHOOSE EITHER THE CONCENTRATION LEVEL RANGE OR PERCENT REDUCTION RANGE FOR EACH
RESTRICTED CONSTITUENT.
Constituent
Site
Concentration
Threshold
Concentration
Appropriate Range
Concentration PcrcentReduction
Range to be achieved
(compliance analysis)
Cadmium
Chromium
Lead
Nickel
Cresols
120 -
30 -
2 -
1 -
50 -
146 ppm
56 ppm
12.5 ppm
6.5 ppm
600 ppm :
> 40 ppm
< 120 ppm
< 300 ppm
< 20 ppm
> 100 ppm
X
X
X
X
X
95-99.9 Percent Reduction (TCLP)
05 - 6 ppm (TCLP)
0.1-3 ppm (TCLP)
0.5 - 1 ppm (TCLP)
90-99.9 Percent Reduction (TCLP)
STEP 3: IDENTIFY TREATMENT TECHNOLOGIES THAT MEET THE TREATMENT RANGES.
• Highlight 5 lists the technologies that achieved the alternate treatment levels for each structural/functional group.
• Because cresols are present in relatively low concentrations (assumed for the purposes of this example), a TCLP may be used to
determine if immobilization results in a sufficient reduction of mobility of this restricted RCRA hazardous waste. (Measures to address
any volatization of orgamcs during immobilization processes will be necessary)
• Immobilization also will result in the effective reduction in leachability (i.e., at least 90 percent) of arsenic, a Superfund primary
contaminant of concern.
Alternative
Effective Reduction
of Tenacity, Mobility, Volume?
"Placement?'
Meet LDR Treatment
Standards for BOAT Constituents
Meet Treatability Variance
Alternate Levels?
1. Low temperature stripping/
Stabilization
2. Stabilization in mobile unit
3. In-situ stabilization
4. Capping in Place
Yes Yes No
Yes Yes No (not for cresols)
Yes (Mobility) No (LDRs not ARARs) —
No No (LDRs not ARARs) —
Yes
Yes
Treatability studies conducted during RI/FS indicated the standard could not be met consistently for all soils contaminated with cresols.
• After balancing the tradeoffs among alternatives with respect to the nine evaluation catena, the Agency determined that stabilization
of wastes in a mobile unit is the preferred alternative The next step is to seek and obtain a Treatability Variance for the preferred
alternative in the Proposed Plan and ROD
-------
Appendix B
-------
COMPENDIUM OF CERCLA
RESPONSE SELECTION
GUIDANCE DOCUMENTS
INDEX
-------
TABLE OF CONTENTS
Category - Subcateaorv Number Series* Page
Pre-Remedial 0001-0002 1
Removal Action 1000-1008 1
RI/FS - General 2000-2012 2
RI/FS - RI Data Quality/Site & Waste Assessment 2100-2119 2
RI/FS - Land Disposal Facility Technology 2200-2212 4
RI/FS - Other Technologies 2300-2320 5
RI/FS - Ground-Water Monitoring & Protection 2400-2408 7
ARARs 3000-3005 8
Water Quality 4000-4003 9
Risk Assessment 5000-5015 9
Cost Analysis 6000-6001 11
Community Relations 7000-7000 11
Enforcement 8000-8001 12
Selection of Remedy/Decision Documents 9000-9001 12
Data Element Definitions
List of Organizational Abbreviations and Acronyms Identified in the Index
*The range for each number series identified represents the numbers assigned to those documents
currently in the Compendium.
-------
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DATA ELEMENT DEFINITIONS
The data elements of the Compendium database, as identified on the index, are shown
below:
DATA ELEMENT
Doc No
Vol
Title
Date
Authors
Status
Pages
Tier
Attachments
OSWER/EPA Number
DEFINITION
Unique four-digit number assigned to a document included
in the Compendium according to category.
Volume number of the binder in which the hard copy of
the document is contained.
Title of the document. Secondary Reference is identified
following the title when a document relates to more than
one category. The document itself is filed under the
number series assigned to its primary category.
The date the document was published by or released from
the issuing office or entity.
Author(s) and affiliation(s). Also includes identification of
the EPA Project Officer and issuing office, where
applicable.
Indicates the status of a document, either draft or final
version.
Total number of printed pages of the document, including
any attachments.
Tier 1 or Tier 2. Tier 1 documents are the core documents
of the Compendium as listed in the pamphlet titled
"Selected Technical Guidance for Superfund Projects,"
compiled by OERR. Tier 2 documents are all other
documents included in the Compendium.
Attachments to a document by complete or abbreviated
title.
EPA report or OSWER Directive System numbers, where
applicable.
-------
RD/RA NEGOTIATIONS/SETTLEMENT
I. DESCRIPTION OF ACTIVITY 1
Introduction 1
Statutory Authority 1
Overview of the Negotiation Process 1
Rotes and Responsibilities 3
RPM Responsibilities 3
ORC Responsibilities 3
OWPE Responsibilities 3
OECM Responsibilities 4
DOJ Responsibilities 4
Delegations. 4
II. PROCEDURES AND INTERACTIONS 6
A. Regional Decision to Pursue RD/RA Negotiations 6
Review PRP Search 6
B. Negotiation Planning 6
RD/RA Negotiation Plan 6
Draft Consent Decree 8
Covenants Not to Sue 8
Reopeners 9
C. Notification of States and Federal Natural Resources Trustees.... 9
D. Special Notice Letters 9
Contents. 9
Cost Recovery 10
Timing the SNL 11
Section 122(a) Letters 11
E Good Faith Offer (GFO) 11
Negotiation Extensions 12
F. Settlement Incentives' Disincentives 13
G. CERCLA Settlement Policy 13
H. Settlement Tools 14
Mixed Funding Settlements 15
Preauthorization 16
Mixed Work , 18
Cash Out 18
De Minimis 19
Criteria for Eligibility for De Minimis Settlements 20
Necessary Information for Generator De Minimis Settlements 20
Potential Q& Minimis Generator Candidates 20
Timing De Minimis Settlements 21
Reopeners , 21
Finalizing Settlement , 22
Non-Binding Allocation of Responsibility (NBAR) 22
Settlement Decision Committee (SDC) 23
AA Review Team 24
-------
L Finalizing Settlement 24
Referral Package 24
J. Inducements to Non-Settlors/ Enforcement Options , 25
Section 106 AOUs 25
Section 106 Litigation 25
Fund 26
Partial Settlements 26
K. Post Referral Actions by DOJ 26
III. PLANNING AND REPORTING REQUIREMENTS..... 27
A. Budget Requirements 27
B. Reporting Requirements 27
IV. POTENTIAL PROBLEMS/RESOLUTIONS..... 30
A. Poor Relationships Among the PRPs 30
B. Multiple Revisions to Draft CD.... .......30
C. Settling with Majors Involved with D£ Minimis Settlements. .......30
D. Use of Public Relations 30
E Inadequate PRP Searches 31
F. Late Challenges to Volumetric Ranking 31
V. REFERENCES. ....32
Poky..... ..32
Guidance.. 32
Memoranda ..32
Contacts......... ....33
Training 33
VI. ACTIVITIES CHECKLIST 34
APPENDIX
-------
RD/RA NEGOTIATIONS/SETTLEMENT
Introduction
Statutory
Authority
Overview of the
Negotiation
Process
I. DESCRIPTION OF ACTIVITY
This chapter discusses the process of negotiating for PRP conduct of the Remedial
Design/Remedial Action (RD/RA) and focuses on the RPM's role in the process. In
addition to discussing the RD/RA negotiation process, this chapter also discusses the
settlement tools available to EPA and PRPs, including mixed funding, Non-binding
Preliminary Allocation of Responsibility (NBARs), deminimis settlements, the settlement
decision committee and the Assistant Administrator's review team.
Section 122 of CERCLA requires that all RD/RA settlements with PRPs be finalized as
judicial consent decrees. Consent decrees usually reference section 106 (Abatement
Actions) and section 122 (Settlements). Settlements for RD/RA or RA only are never
done administratively as an Administrative Order on Consent (AOC). Settlements for
RD only may take the form of AOCs but AOCs for RD activity are not preferred.
Settlement with de minimis parties, however, may be finalized as an AOC.
The RD/RA negotiation process requires cooperation and close coordination of the
Regional program office, ORC, DOJ, OECM and OWPE. Exhibit VI11-1 summarizes the
RD/RA negotiation process.
The negotiation planning process begins with a Regional decision that there are
Potentially Responsible Parties (PRPs) who appear to be viable and capable of properly
implementing the remedy and who may be willing to settle. The Region must evaluate the
results of the PRP search, which should be complete well in advance of RD/RA
negotiations, and other evidence when making this decision.
The first step in the RD/RA negotiation process is for the RPM and Office of Regional
Counsel (ORC) staff person to develop an RD/RA negotiation plan outlining the
negotiation objectives and strategy. This plan is part of integrated remedial and
enforcement planning. As a management device, it will define roles and responsibilities
for all participants, establish mutually agreed timelines for performance of individual
responsibilities, establish a framework for accountability in tracking progress, and make
it possible to obtain commitments from all participants to shared goals and objectives.
Key areas where attention should be focused as part of the negotiation planning process
are: assuring a timely and high-quality PRP search, including information for special
notice and evidence for litigation, assuring that the Administrative Record is in order,
documenting past costs, and establishing a substantive negotiating strategy. Settlement
devices such as mixed funding and de minimis also may be employed, and PRPs may
request that EPA provide an NBAR under section 122(e)(3) of CERCLA.
By this stage, most or all PRPs have been notified of their status as PRPs with a
general notice letter. Following general notice, EPA continues to look for more PRPs and
for hard evidence of liability. If additional PRPs are identified, EPA issues general notice
fetters to them, unless notice has been provided by special notice or section 122(a) notice.
-1-
-------
The RPM should encourage the new PRPs' involvement in the negotiations and should
notify them of any PRP steering committees that may have formed.
The RPM should contact the Federal natural resources trustees again (earlier contact
will have occurred prior to the RD/RA negotiation planning process) when developing the
negotiation plan to assure their input to the plan. Coordination with the State is
important when developing the RD/RA negotiation plan to assure that their concerns are
understood and to determine the availability of State funding should negotiations fail to
produce a settlement.
A pre-referral package should be submitted to the Department of Justice (DOJ) before
the commencement of the formal settlement process to ensure timely involvement and
coordination with DOJ. Generally, notice to DOJ should be provided at least 60 days
prior to the issuance of the RD/RA special notice.
The formal settlement process begins with the issuance of special notice letters to the
PRPs. Special notice letters are authorized by CERCLA when EPA determines that a
period of negotiation would facilitate an agreement with PRPs for taking response action.
Issuance of special notice should occur between the time the proposed plan and draft
feasibility study are released to the public and the date the ROD is signed, or very
shortly thereafter. Exceptions to this are discussed later in this chapter. A draft
consent decree (approved by appropriate EPA and DOJ management) and proposed plan
or ROD should be attached to the special notice letter.
With certain exceptions, the issuance of the special notice letter begins a 60-day
moratorium period regarding action under section 104 and 106 of CERCLA. PRPs have
60 days from the date of issuance to submit a good faith offer to EPA. If such an offer
is received, the moratorium is extended an additional 60 days. If additional time is
necessary, the Regional Administrator may extend the moratorium period by an
additional 30 days. Requests for extensions of RD/RA negotiations beyond 150 days
must be well justified and must be approved in advance by the AA, OSWER.
Once agreement has been reached, the PRPs and the Regional Administrator must sign
a consent decree. Thereafter, the consent decree is forwarded to DOJ with a referral
package developed by ORC. If the settlement falls under any of the categories of non-
delegated settlements, OECM and OWPE must concur on the signed consent decree
before it is forwarded to DOJ. It should be noted that RD-only settlements may be in the
form of an administrative order on consent or stipulation and can be used to expedite the
initiation of response work. EPA does not encourage RD-only settlements without an
expectation that the PRPs will agree to commit to conduct the remedy.
Should EPA fail to reach an agreement with the PRPs, Regions may issue a unilateral
administrative order, which may be followed by a judicial action (referral to DOJ),
and/or initiate Fund-financed activity. Referrals to DOJ for RD/RA are usually under
the authority of section 106 of CERCLA. Regions provide litigation support for the case
after it is filed in court by DOJ.
-2-
-------
Exhibit VIII-1
RD/RA Negotiation Process
Fund-lead RD/RA
Decision to Pursue Negotiations
Non-viable
Review PRP Search and
Administrative Record
Develop Negotiation Plan:
• Case status
• Cost recovery plan
• PRP search assessment
• Remedy selection plan and
review
• Notify Trustees
• Special notice preparation
• CD preparation
• Negotiating positions
• Negotiation strategy
• Enforcement strategy and
schedule
• Major milestone schedule
Funding strategy
Work with Steering Committee
Issue Special Notice
Receive GFO
Negotiate
No Settlement'
Enforcement Options:
§106 AOU
Fund Implementation
Referral of §106 Litigation
Cost Recovery (§107)
Wl¥«"lW*!IIIMftm^
Finalize Settlement
, '' "-'' "'
PRP
Search
Follow-up
Activities
60-day Formal
Negotiation Period
(Consider
Settlement Tools)
60-day
Extension
Possible RA
and AA,
OSWER
Extensions
'Partial Settlement
\ %% ^ f ••
|i Sign
M...1
t. '. -. i
Consent Decree I
Enforcement Options:
(non-settlors)
§106 Carve Out Order
Referral of §106 Litigation
Cost Recovery (§107)
-------
Roles and This section describes the roles and responsibilities of the RPMs, assistant Regional
Responsibilities counsel, and representatives from OWPE, OECM, and DOJ. The primary activities
for each group are summarized for each phase-of the negotiation process below and
in Exhibit VIII-2.
RPM The RPM plays a central role throughout the RD/RA negotiation process. The RPM is
Responsibilities responsible for technical aspects of the case and for coordinating with OWPE during each
phase of the negotiations. Planning, preparing for, and participating in the negotiations
process, along with having responsibility for negotiation coordination, usually involves a
substantial time commitment by the RPM over a long period of time.
The planning stage is based on a thorough and complete PRP search. RPMs usually will
have given the PRPs early notice of their potential liability through general notice letters.
Information on volumetric rankings of PRPs and the nature of substances at the site is
contained in an RI/FS special notice. The RPM ensures that the PRP search has been
updated as appropriate and that special notice for RD/RA is prepared. The RPM also is
responsible for preparation of a negotiation strategy, in conjunction with the assistant
Regional counsel. In view of the intense efforts required to prepare the proposed plan,
responsiveness summary and ROD, as much of this work as possible should be done
before the proposed plan is prepared. The RPM assists in developing the consent decree
by drafting the technical aspects of the document. The RPM also participates in
developing the case referral packages for section 106 and section 107 litigation cases.
ORC ORC, in partnership with the RPM, plays a central role in all phases of the RD/RA
Responsibilities negotiations. The assistant Regional counsel's primary role is to prepare the pre-referral
report to DOJ and the draft consent decree, and to provide legal assessments during the
negotiation process. ORC is responsible for coordinating with DOJ and OECM during the
RD/RA negotiations. The assistant Regional counsel also participates in the
development of the case referral package for DOJ litigation of section 106 and section
107 cases.
OWPE OWPE is responsible for ensuring national consistency for negotiated settlements and
Responsibilities consistency with Agency policy. OWPE has experts on each type of RD/RA settlement
(e.g., mixed funding, and de minim is) who act as resources for the RPM and assistant
Regional counsel.
OWPE participates in management review of non-delegated settlements, and the
Director, OWPE must concur on these settlements. Additionally, OWPE representatives
may participate on negotiation teams where complex or nationally significant issues are
anticipated. OWPE may also assist the Regions in assembling part of the cost
documentation package. OWPE should be on the case correspondence list and be supplied
with relevant documents, including draft consent decrees, relating to cases in RD/RA
negotiations. The Director, OWPE also chairs the Settlement Decision Committee
(SDC) which is discussed later in this chapter and in Chapter V, RI/FS Negotiations.
-3-
-------
OECM OECM is responsible for ensuring that negotiated settlements are consistent across the
Responsibilities Regions with national policy for legal matters. OECM attorneys have expertise in the
legal implications of RD/RA settlements. OECM attorneys may participate in any
negotiations where complex or nationally significant issues are anticipated, assist
Regional counsel in prereferral matters, and review referrals sent to DOJ. OECM also
reviews all consent decrees resulting from settlements. For non-delegated settlements,
the AA, OECM must concur. Whether or not the settlement is delegated, OECM should
be on the case correspondence list and be supplied with relevant documents and draft
CDs. In addition, OECM is represented on the SDC.
DOJ DOJ's representative from the Land and Natural Resources Division's Environmental
Responsibilities Enforcement Section is EPA's attorney for litigation of Superfund cases. DOJ
participates fully in negotiations, litigation, and enforcement strategy development. DOJ
representatives participate on the negotiations team. The DOJ attorney represents
DOJ views on the case and is responsible for providing consistency with and insight into
other enforcement cases. The attorney also provides analysis of the litigative risks of
going to trial. DOJ concurrence is required for all RD/RA or RA consent decrees and for
cost recovery or de minimis administrative orders where total site response costs exceed
$500,000. The DOJ attorney and appropriate management review the initial draft of the
consent decree before it is sent to the PRPs, as well as subsequent redrafts. DOJ case
attorneys are important legal resources for the RPM and assistant Regional counsel.
Close coordination and communication with DOJ is important for successful negotiation
and litigation of Superfund cases.
Delegations Headquarters has delegated authority to the Regional Administrators for RD/RA
settlements under the following conditions:
With no Headquarters concurrence or consultation required if the settlement is a:
Section 106 or 106/107 RD/RA settlement where response costs do not
exceed $30 million and the settlement is not in a category summarized
below.
With Headquarters consultation required:
Section 106 or 106/107 RD/RA settlements where response costs are
between $30 and $60 million
Settlements that compromise greater than 25 percent and less than 50
percent of total past and future costs
Mixed funding settlements that compromise between 25 and 50 percent
of response costs where the EPA obligation is greater than $2 million.
Upon attainment of experience by the Region (i.e., Headquarters concurrence
retained on the first settlement):
De minimis settlements
-4-
-------
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Mixed funding settlements.
With Headquarters concurrence retained; delegation to Region to be reviewed in
the future:
Section 106 RD/RA settlements where response costs exceed $60 million
Section 107 settlements where total past and future costs exceed $60
million
Settlements that compromise greater than 50 percent of the total past
and future costs, and mixed funding settlements that require 50 percent
or more of total past and future costs or greater than a $2 million
contribution by the U.S.
Multi-Regional or nationally-managed cases, including bankruptcies
Settlements based upon extraordinary circumstances that purport to
grant covenants not to sue without limitations as to future liability
(section 122(f)(6)(B))
Precedent setting cases (e.g., certain municipalities as generators,
dioxin, substantial deviations from Agency policy)
Settlements involving section 122(f)(2) special covenants not to sue.
For further information on Regional authority, consult OSWER Directive 9012.10-a,
"Revision of CERCLA Civil Judicial Settlement Authorities Under Delegations 14-13 B
and 14-14 E (June 17,1988).
References
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1988).
OSWER Directive 9834.3, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OECM, "CERCLA RD/RA Settlement Negotiations Checklist" (January 26, 1988).
-5-
-------
Regional
Decision to
Pursue
RD/RA
Negotiations
Review PRP
Search
B. Negotiation
Planning
FtD/RA
Negotiation
Plan
II. PROCEDURES AND INTERACTIONS
The Regional decision to pursue RD/RA negotiations must be planned in the prior-year
SCAP commitments to allow the Agency to define the resource needs for the Region.
Regions should use the annual SCAP process and quarterly updates to identify those
sites that are likely to progress to RD/RA negotiations in the current fiscal year and the
planned fiscal year. Sites where RODs are expected are considered the initial pool of
prospects for RD/RA negotiations.
The RPM and assistant Regional counsel are the lead technical and legal negotiators,
respectively, on the negotiation or case team. In addition, the RPM is usually responsible
for developing a budget estimate of post-RI/FS support needs during RD/RA negotiations.
The Regional CERCLA section chief and case team have responsibility for notifying
Federal natural resources trustees, States, DOJ, OWPE, OECM, and the relevant
technical support personnel of the Region's intent to pursue RD/RA negotiations in the
planned fiscal year. The decision to conduct RD/RA negotiations should be entered as a
planned SCAP target.
During the RI/FS, and well prior to initiation of negotiations for PRP conduct of RD/RA
activities, the negotiation team should review the results of PRP search activities at the
site and identify follow-up activities that may lead to identification of additional PRPs or
improved evidence about the volume, substances, liability, or financial viability relating to
previously identified PRPs. The potential role of newly identified PRPs should be
considered in developing the negotiation plan.
Negotiations where EPA is fully prepared and sets schedules and deadlines are much
more likely to result in a signed consent decree than negotiations for which EPA has not
adequately planned. A suggested RD/RA negotiation planning schedule is presented in
Exhibit VIII-3. The essential elements of negotiation planning are discussed below.
The RD/RA negotiation plan is one major component of the site management plan, as
described in Chapter III, Comprehensive Site Planning. The object of the plan is to assist
the RPM in effective management of the RD/RA negotiation process and increase the
likelihood of achieving PRP settlements for RD/RA. The detailed RD/RA negotiation
plan, in combination with the site overview and other existing components of the site
management plan (PRP search plan, RI/FS negotiation plan) also should comprise the
pre-negotiation mini-litigation report.
The RPM and assistant Regional counsel should prepare an RD/RA negotiation plan that
outlines the negotiation objectives and strategy. The RD/RA negotiation plan is a vehicle
to assist in planning specific goals and objectives for the negotiations. The plan should
address, at a minimum, the following topics:
Brief update of case status, including current status of site response activities,
site enforcement activities, and their relation to overall site objectives.
-6-
-------
Exhibit VIII-3
Sample RD/RA Negotiation Planning Schedule
Activity
Schedule With Respect
To Planned Negotiation
Start Date
PRP Search Assessment
Request cost-recovery documentation
Decision to pursue negotiations
Final PRP search evaluation
Evaluate schedule in terms of SPMS
commitments and construction season
Assess cost recovery case
Develop negotiation plan
Implement negotiation plan
Initiate at least 3 quarters prior to start date to
allow for supplemental activities. Conclude
supplemental activities no later than 5 months
before start date.
Complete checklist 2 quarters prior to start
date.
At least 4 months prior to start date.
At least 3-1/2 months prior to start date.
Initiate at least 1 quarter prior to start date.
-------
PRP search assessment, including assessment of completeness (identification of
all PRPs; information on volume/nature of substances from each PRP), tracking
systems, strength of evidence, financial viability of PRPs, liability theories, and
PRP defenses.
Cost Recovery, including plan for updating documentation and recovery of past
costs to date and estimates of future oversight costs, an assessment of
Statute of Limitiations (SOL) issues, computation of interest claims, demand for
past costs in special notice or demand letter, assessment of any weaknesses in
past costs, relationship of past costs to overall settlement, and litigation
alternatives for costs if non-settlors exist or negotiations are unsuccessful.
Remedy selection plan and review of Administrative Record, including
identification of participants in RI/FS and ROD preparation, and if the ROD is
not signed, detailed timeline for ROD preparation, public participation (including
PRPs) in the remedy selection process, review of Administrative Record, and
overall coordination with enforcement case development and negotiations.
Special notice letter preparation and review (with volumetric attachment).
Consent decree preparation and review, including technical deliverables and
schedules.
Plan for negotiation positions and for obtaining approval for negotiations and
overall tactics to achieve these objectives. Review of volumetric shares,
nonviable parties, strength of evidence, appropriateness of de minimis and/or
need for mixed funding, and criteria for evaluating good faith offers. Possible re-
examination of positions if there are some settlors and some viable non-settlors.
« Procedural strategy for carrying out negotiations, including discussions with
steering committee, timing of special notice, drop dead dates, draft consent
decrees, development of work plans, oversight plan, and associated response
needs.
• Enforcement strategy and schedule for actions should negotiations not result in a
settlement in a reasonably prompt fashion. These may include section 106 AOs
or judicial actions.
Funding strategy (RD and RA may be separate) and schedule if case does not
settle, including an analysis of State share issues.
Schedule for major milestones with specific case team assignments for managing
and performing task accomplishments.
Resource needs.
The RD/RA negotiation plan is also discussed in Chapter III, Comprehensive Site
Planning.
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Draft The terms and conditions governing the RD/RA activities of PRPs are specified in a
Consent Consent Decree (CD). The case team should prepare a draft CD as part of the
Decree negotiations planning activities. OECM currently is preparing a model CERCLA CD.
Exhibit VI11-4 presents the typical elements of a CD. The concurrence of appropriate
EPA and DOJ management on the draft decree should be obtained before it is sent to the
State or the PRPs.
The following is a more detailed discussion of two specific elements of CDs-covenants
not to sue and reopeners. These are two frequently disputed provisions in RD/RA
settlements in which the RPM may not have had prior training.
Covenants Not to Sue
Under section 122(f)(1), EPA may grant covenants not to sue (covenants) for both
present and future liability to settling PRPs. In general, present liability refers to the
PRPs' obligation to pay response costs already incurred by the Agency and to complete
those remedial activities set forth in the ROD. Future liability refers to the PRPs'
obligation to perform any additional response activities that are necessary to protect
human health or the environment that arise after the ROD is signed.
Generally, PRPs do not receive broad covenants not to sue (which sometimes are
referred to as releases from liability). PRPs will be released from past costs if they pay
them or, depending on the provisions of the settlement, may be released if past costs are
deferred to non-settlors. Under most RD/RA consent decrees, PRPs are liable for
implementation of the ROD, O&M, and oversight, and a covenant not to sue becomes
effective for these when the response is completed. They remain liable for future work,
such as might be required by the CERCLA section 121 (c) five-year review.
Assuming CERCLA section 122 (f)(1) conditions are met, EPA must provide covenants
not to sue in two special cases:
If EPA selects a remedial action involving off-site disposal after rejecting a PRP
proposal to conduct an on-site remedy that fully complies with the NCP
requirements.
If the remedy involves treatment of hazardous substances and treatment of by-
products that destroy, eliminate, or permanently immobilize each of the
substances such that, in the judgment of EPA, neither the substances nor the
byproduct of treatment present any current or future significant risk. Examples
of such treatment technologies may include biodegradation and incineration.
Special covenants not to sue without reopeners may also be provided for in
extraordinary circumstances, which are limited. Only the natural resource trustee may
authorize covenants not to sue for natural resource damages.
Covenants not to sue for present liability take effect upon certification that the remedial
action has been completed in accordance with the terms of the ROD and in a manner
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Exhibit VIII-4
Examples of Provisions in a Consent Decree
I Background
II. Jurisdiction
III. Parties Bound
IV. Definitions
V. General Provisions
VI. Performance of the Work by Settling Defendants
VII. EPA Periodic Review to Assure Protection of Human Health and Environment (§121(c))
VIII. Failure to Attain Performance Standards/Additional Work
DC Quality Assurance, Sampling, and Data Analysis
X Access
XL Reporting Requirements
XII. Submissions Requiring Agency Approval
XIII. Remedial Project Manager/Project Coordinators
XIV. Assurance of Ability to Complete Work
XV. Trust Fund
XVI. Certification of Completion
XVII. Endangerment and Emergency Response
XVIII. Reimbursement of Response Costs and Oversight Costs
XIX Indemnification and Insurance
XX. Force Majeure
XXI. Dispute Resolution
XXII. Stipulated Penalties
XXIII. Covenants Not to Sue by Plaintiffs
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Exhibit VIII-4(2)
Examples of Provisions in a Consent Decree
XXIV. Covenants by Settling Defendants
XXV. Access to Information
XXVI. Retention of Records
XXVII. Notices and Submissions
XXVIII. Effective and Termination Dates
XXIX. Retention of Jurisdiction
XXX. Modification
XXXI. Community Relations
XXXII Waiver of Service of Complaint
XXXIII. Lodging and Opportunity for Public Comment
XXXIV. Signatories
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consistent with the NCR. Chapter XI, Site Completion/Deletion, contains more detailed
information on certifying the completion of remedial activity at a site. For further
information on covenants not to sue and model covenants, consult OSWER Directive
9834.8, "Covenants Not To Sue Under SARA" (July 10,1987).
Reopeners
Reopener provisions allow EPA to hold the PRP liable for additional response costs
incurred at the site due to unknown conditions or information or failure of the remedy.
Reopener provisions must be included in every consent decree to cover the following
situations:
Where conditions unknown at the time of the CD reveal that the remedy is no
longer protective of public health or the environment.
Where the remedy fails to be protective of human health and the environment.
In both cases, the operative principle is the development of new scientific information that
shows that the site presents a problem not addressed satisfactorily by the remedy. This
does not mean that the development of new remedial technologies is a basis for
reopeners. Further information on reopeners can be found in OSWER Directive 9834.8,
"Covenants Not to Sue Under SARA" (July 10,1987).
C. Notification Section 121 (f)(1) of CERCLA provides for notice to the State of negotiations. In
of States addition, section 122(j)(1) requires that if a release or threat of release at a site may
and Federal have resulted in damages to natural resources, EPA must notify the appropriate Federal
Natural or State trustees and provide them with an opportunity to participate in the negotiations.
Resources The RPM is responsible for notifying the State and both the Federal and State trustees.
Trustees Settlements that specifically provide for remediation of natural resource damages, or
determine that there were no such damages and grant a covenant not to sue, must be
made with the agreement of the appropriate trustee. Resolution of these issues is often
important to PRPs who may decline to sign a decree without resolution. For further
information on notification procedures and negotiation interactions with Federal and
State trustees, refer to Chapter V, RI/FS Negotiations/Settlement.
D. Special Section 122 of SARA authorizes EPA to issue special notice letters (SNLs) to begin a
Notice formal negotiation period with the PRPs. The primary purposes of the special notice
Leffers procedures are to facilitate settlements for RD/RA through direct negotiations with
PRPs and to expedite cleanups. Prior to issuance of the SNL for RD/RA, PRPs should
have been provided information on all PRPs' involvement at the site, should have
coalesced, and should be familiar with the remedial investigation and the remedial
alternatives.
Confenfs The SNL should contain the following information:
Notice of the potential liability of the PRP
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Tbe purpose of the SNL and the conditions of the negotiations moratorium
• Description of future response actions, if known
Description of the elements of a good faith offer
Statement of work to be performed
Additional information, including information on other PRPs, fact sheets on the
site, volumetric ranking of substances at the facility, and a list of the volume
and nature of substances contributed by each PRP
• Demand for payment of past costs
The date when a good faith offer is due.
The SNL should include as attachments a copy of EPA's proposed plan or the ROD, if
signed, a draft consent decree for the RD/RA, and a draft RD/RA statement of work.
To the extent possible, the SNL should contain specific information to assist the PRPs in
developing a good faith offer. This includes information stipulating the minimum elements
of an acceptable good faith offer and what the Region will not accept. Minimum
requirements for GFOs are discussed later in this chapter.
Headquarters has developed model special notice letters (OSWER Directive Number
9834.1 OA, "Model Notice Letters," Feburary 7,1989) which most Regions have tailored to
their own use.
The ORC should notify the Chief of the Environmental Enforcement Section at DOJ and
provide a pre-referral report 60 days prior to issuing SNLs where settlement by consent
decree is anticipated. A copy of this notification should be sent to OECM and OWPE.
The memorandum should include information about when the SNL will be sent and include
the draft CD for DOJ review. The draft CD also should be made available for OECM
and OWPE review, especially if it is anticipated that the settlement will require
Headquarters consultation or concurrence.
Copies of the SNL should be sent to the appropriate State representative, the natural
resource trustees, the Regional Administrative Record coordinator and OWPE (unless the
Region has previously provided a copy of a general notice letter with the particular PRP
as a recipient. OWPE will enter the PRP into the Superfund Enforcement Tracking
System (SETS).
Cosf Recovery
The negotiations should include negotiations for any past costs, such as costs of a
removal or Fund-lead RI/FS. RPMs should refer to Chapter XII, Cost Recovery, for
information on the different types of costs, which include indirect, direct, pre- and post-
SARA, interest, and the required documentation for recovering these costs. The RPM
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needs to request cost documentation from the Financial Management Division (FMD) at
least 90 days in advance of issuing the SNL. Once this documentation is received, the
RPM should provide it to the PRPs so that they will have EPA's cost information
available to them.
Timing the The SNL should be sent between the time the draft proposed plan and feasibility study
SNL are released for public comment and when the ROD is issued. The timing strategy will
strike a balance between EPA's ability to conduct meaningful negotiations and minimize
delay in implementing the RD/RA. It is not appropriate to delay issuance of SNL for
months after the ROD. The negotiation schedule should take into account any obligation
of Fund monies for RD/RA activity at the site.
Furthermore, negotiations must be conducted in a way that does not undermine the
public participation process. Since the proposed plan has been released, the PRPs will be
able to incorporate the possible range of remedial alternatives into the good faith offer.
Section If EPA decides not to use the special notice procedure, the RPM must send a letter to
122(a) PRPs in accordance with section 122(a) of CERCLA stating why EPA has decided to
Letters forego the formal negotiations period. Situations where it would not be appropriate to use
the special notice procedures because it would not facilitate agreement or expedite
cleanup, may include those where:
Past dealings with the PRPs indicate that they are unlikely to negotiate a
settlement
EPA believes the PRPs have not been negotiating in good faith
No PRPs have been identified in a PRP search reviewed by the civil
investigator and assistant Regional counsel
• PRPs lack the resources to conduct response activities
There are ongoing negotiations with deadlines specified in a letter (i.e.,
ongoing cases where negotiations would not be further expedited by the SNL
process).
If additional PRPs are identified after the issuance of SNLs, the RPM may include them
in ongoing negotiations or if there is a partial settlement, negotiate a separate
agreement. This is a case-by-case decision. SNLs may be sent for a single operable unit
or for the entire RD/RA, depending on the remedy documented in the ROD and Regional
policy. Guidance on special notice letters is contained in OSWER Directives 9834.10,
"Interim Guidance on Notice Letters, Negotiations, and Information Exchange" (October
19,1987) and 9834.10A, "Model Notice Letters" (February 7,1989).
£ Good Faith PRPs are usually given 60 days from the special notice to provide the Agency a good
Offer (GFO) faith proposal for implementation of the RD/RA. The following list of minimum
requirements for good faith offers should be used to help maintain national consistency:
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A statement of the PRP's willingness to conduct or finance the RD/RA that
is consistent with EPA's proposed plan or the ROD, if it has been issued, or
that provides a legitimate basis for further discussion. While a proposal with
variations on EPA's chosen/preferred remedy does not always mean that
an offer is in bad faith, it is at the very least not preferred. If, as a matter
of course, EPA frequently reopens remedy discussions there will be fruitless
negotiations and undue delays.
A paragraph-by-paragraph response to EPA's draft consent decree
A demonstration of the PRP's technical and financial capability to perform
the work, including a list of potential contractors and their qualifications
• A statement of the PRP's ability and willingness to reimburse EPA for past
response (or if not, why referral to non-settlors is appropriate) and oversight
costs
A discussion of the PRP's position on release from liability and reopeners to
liability.
To encourage PRPs to submit acceptable good faith offers, the RPM must take an
active role in educating the PRPs. Regional minimum requirements for good faith offers
should be stipulated in detail in the special notice letters. The RPM should maintain
frequent contact with the PRPs or steering committee representatives regarding
development of a good faith offer. The final report and work products of the Settlement
Incentives/Disincentives Workgroup may provide guidance to RPMs on evaluating a GFO
and proceeding to settlement.
For further guidance on good faith offers, refer to OSWER Directive 9834.10, "Interim
Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19,1987),
and OSWER Directive 9834.10A, "Model Notice Letters" (February 7,1989).
Negotiation Issuance of the SNLs triggers a moratorium on EPA's conduct of certain actions.
Extensions The intent of the moratorium period is to place a statutory deadline on the formal
negotiation period to encourage settlement. The initial negotiation moratorium may
last for a total of 120 days in RD/RA negotiations. If EPA does not receive a good
faith offer within the first 60 days of the SNL, the negotiation period will terminate.
If a good faith offer is received, the negotiations may continue for another 60 days.
Firm schedules tend to force issues to resolution. Negotiations may be extended for
30 days with Regional Administrator approval and additional extensions may be
granted with AA, OSWER approval.
For further information on extensions refer to OSWER Directive 9834.10, "Interim
Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19,
1987) and OSWER Directive 9835.4, "Interim Guidance on Streamlining the CERCLA
Settlement Process" (February 12,1987).
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F. Settlement
Incentives/
Disincentives
G.
CERCLA
Settlement
Policy
The settlements incentives/disincentives concept is an approach to RD/RA settlements
that indicates EPA's willingess to enter into partial settlements with those willing to
settle, particularly if they will conduct the cleanup, and EPA's willingness to pursue viable
non-settlors for the remainder. The concept does not apply to single owner-operator
sites.
The settlements incentives/disincentives concept continues EPA's goal of recovering 100
percent of site costs and preference for pressing for a close-to-100 percent settlement
with some or all PRPs. Nonetheless, in some multi-party cases where most viable PRPs
are willing to settle but some are not, as an incentive to those willing to settle EPA may
enter into a partial settlement with the willing parties, and pursue the remaining parties
for the remainder of the site costs. In determining how much the settlors should pay, the
interim CERCLA settlement policy should be applied. At a minimum, the settlors usually
should pay more than their volumetric share to take into account non-viable non-settlors
and evidentiary deficiencies regarding viable non-settlors. Also, mixed funding and d£
minimis settlements and NBARs should be used in appropriate cases.
The settlement incentives/disincentives approach also recognizes the use of disincentives
to the use of dilatory tactics in negotiation, and to the refusal of all or some PRPs to
settle. Section 106 unilateral orders are a powerful management tool to encourage
parties that are somewhat willing to settle but are delaying resolution of negotiations.
More generally, section 106 unilateral orders are also a disincentive to non-settlement
because failure to comply with them may result in penalties under section 106 or treble
damages under section 107. Where there is a partial settlement, it is very important to
file a lawsuit against non-settlors as soon as possible. In most cases, this is a cost
recovery action.
EPA's interim CERCLA settlement policy sets forth general principles governing
settlements with private parties under CERCLA. The policy recognizes that the
objective of negotiations is to collect 100 percent of cleanup costs from responsible
parties. The policy also recognizes that in very limited circumstances exceptions to this
goal may be appropriate, and establishes criteria for determining where such exceptions
are allowed. The ten criteria are:
1. Volume of Wastes Contributed to Site bv Each PRP. The volume of waste may
contribute significantly and directly to the distribution of contamination on the
surface and subsurface ground water. At many sites, there will be wastes for
which PRPs cannot be identified. If identified, PRPs may be unable to provide
funds for cleanup. The volume of wastes is not the only criterion to be
considered. Therefore, it will be necessary in many cases to require a
settlement contribution greater than the percentage of wastes contributed by
each PRP to the site.
2 Nature of Wastes Contributed. If a waste contributed by one or more of the
parties offering a settlement disproportionately increases the cost of cleanup at
the site, it may be appropriate for parties contributing such waste to bear a
larger percentage of cleanup costs than would be the case using a solely
volumetric basis.
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3. Strength of Evidence Tracing the Wastes at the Site to the Settling Parties.
Where the quality and quantity of the Government's evidence appears to be
strong for establishing the PRP's liability, the Government should rely on the
strength of its evidence and not decrease the settlement value of its case. If the
Government's evidence against a particular PRP is weak, that weakness should
be weighed in evaluating a settlement offer from that PRP.
4. Ability of the Settling Parties to Pav. The evaluation of the settlement proposal
should discuss the financial condition of the party, and the practical results of
pursuing a party for more than the Government can hope to actually recover.
5. Litigative Risks in Proceeding to Trial, including:
a. Admissibility of the Government's evidence
b Adequacy of the Government's evidence
c. Availability of defenses.
6. Public Interest Considerations. For example, if the State cannot fund its
portion of a Fund-financed cleanup, a private-party cleanup proposal may be
given more favorable consideration than one received in a case where the
State can fund its portion of cleanup costs. Public interest concerns may be
used to justify a settlement of less than 100 percent only when there is a
demonstrated need for a quick remedy to protect public health or the
environment.
7. Precedential Value.
8. Value of Obtaining a Present Sum pertain. The sum offered in settlement
may be, in reality, higher than the amount the Government can expect to
obtain at trial.
9. Inequities and Aggravating Factors.
10. Nature of the Case that Remains After Settlement. All settlement
evaluations should address the nature of the case that remains if the
settlement is accepted. For example, if there are no financially viable, liable
parties left to proceed against for the balance of the cleanup after the
settlement, the settlement offer should constitute everything the
Government expects to obtain at that site.
H. Settlement The negotiation team has several important settlement tools that can help achieve PRP
Tools settlements. These include:
Mixed funding
De minimis
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NBARs
Settlement Decision Committee (SDC)
AA Review Team.
Each of these settlement tools is discussed in detail in this section.
Mixed Mixed funding agreements are settlements whereby EPA settles with fewer than all
Funding PRPs for less than 100 percent of the response costs and there are additional measures
Settlements to assure that the response action is done. There are three types of mixed funding
settlements:
Preauthorization: Settling PRPs agree to conduct the response action and the
Agency agrees to pay for part of the response costs by approving in advance
the basic elements of a claim by settling PRPs against the Fund.
Mixed Work: PRPs conduct discrete parts of the response activity while EPA
conducts the remainder.
Cash Outs: Settling PRPs pay a portion of the response costs and the Agency
conducts the response action.
Once the PRPs have indicated their interest in pursuing a mixed funding settlement, the
Region should evaluate the case against the ten-point settlement criteria which include, in
this context, the following:
The PRPs are in general agreement with the remedy
A substantial part of cleanup (> 50 percent) is offered by settling PRPs
The settlors' part of the cleanup is proportionate to or greater than a combined
allocation of the settling PRP's
Strength of liability case against and viability of the PRPs (settlors and non-
settlors)
Amount of waste contributed to the site by settlors and viable non-settlors
compared to their relative settlement share
Other options are available if settlement fails.
The best candidates for mixed funding are cases in which the following features are
present:
The potential portion or operable unit to be covered by the Fund is small, or the
settling PRPs offer a substantial portion of the total cost of cleanup. In this
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context, substantial portion may be defined as a commitment by the PRPs to
undertake or finance a predominant portion of the total remedial action.
The Government has a strong case against financially viable non-settling PRPs,
from which the Fund portion may be recovered.
Cases considered poor candidates for mixed funding have the following features:
The potential Fund portion is large (e.g., the potentially-settling parties' offer is
insufficient).
The case against settling parties is strong and the case against the non-settlors
is not strong, and thus litigation is likely to be more successful.
These factors do not automatically preclude mixed funding for a case. However, for
mixed funding to be seriously considered in such instances, other compensating factors
must be present, such as the ability of the settlors to initiate the response action more
quickly than the Government in a Fund-financed action. The following sections discuss
the three types of mixed funding settlements and factors to be considered in choosing a
particular type of mixed funding settlement.
After the Region completes an evaluation of the case and determines that it is a good
candidate for mixed funding, the RPM notifies OERR (if Fund dollars are involved, as in
preauthorization), OWPE, OECM, and DOJ. Specific reporting and tracking information
concerning the site is also entered into CERCLIS.
When developing cost allocations for mixed funding settlement proposals, the case team
should carefully evaluate the governmental contribution to the cleanup or outstanding
work and the strength of the case against non-settlors, including an analysis of liability,
viability, and amount contributed to the site. The case team should be careful to avoid a
proposal with fixed division of costs between the settlors and the Government. This
may result in "over-subscription," where all PRPs or more PRPs than anticipated accept
EPA's proposed cost allocation. This could leave EPA with too small a settlement and
too few viable or liable non-settlors left including an action where the non-settlors share
would be grossly disproportionate to their contributions. To avoid "over-subscription" the
case team should develop a sliding scale settlement proposal, where settlement amounts
vary depending on the volumetric percentage of PRPs signing on as settlors. The work
products of the Settlement Incentives/Disincentives Workgroup contain further
information on developing cost allocations for mixed funding settlements.
Preauthorization
"Preauthorization" refers to the approval granted by EPA prior to cleanup actions if a
PRP claim against the Fund for response costs is to be considered. Preauthorization
represents EPA's commitment that, if response activities are conducted pursuant to the
settlement agreement and the costs are reasonable and necessary, the PRP will be
reimbursed from the Fund as set forth in the settlement.
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The initial analysis is to determine whether the site is a proper candidate for a
preauthorization mixed funding settlement. In addition to the points listed above that
identify potential candidates for mixed funding, the nature of the proposed remedy and
the PRP's ability to perform it should be considered carefully in assessing a settlement
offer that involves preauthorization. The size of the PRP's portion of cleanup
responsibility also should be considered. When PRPs commit to pay for a sufficiently high
percentage of cleanup costs, they have a strong economic incentive to keep actual
response costs within or close to estimates. Additionally, the urgency of the threat
posed by the site may influence the decision to agree to preauthorization, if
preauthorization would expedite response activities. Prompt initiation of remedial action
would be of particular importance for sites that are not currently scheduled for full Fund
financing.
Additionally, the preauthorization agreement must be approved by OERR. The OERR
evaluation with regard to preauthorization is separate and distinct from the evaluation of
the settlement performed by OWPE. In preauthorization agreements, the PRPs prepare
a preauthorization proposal for Regional review. The RPM's early notification to OERR
and OWPE of the PRP's intention to pursue preauthorization is crucial to the timeliness of
Headquarters' review of the proposal and the development of the Preauthorization
Decision Document (PDD). After reviewing the settlement according to the ten-point
settlement criteria set forth in the Interim Settlement Policy, the RPM forwards the
preauthorization proposal to OERR's Hazardous Site Control Division, State and Local
Coordination Branch, State Requirements Section and the OWPE CERCLA Compliance
Branch. Both Headquarters offices work jointly with the Region in reviewing and
approving the PRP's submittal. The Region must also notify DOJ and ensure that the
case is entered into CERCLIS.
The Region should consider and plan for the amount of time necessary to process
preauthorization applications and the urgency of site conditions when conducting
negotiations. Although EPA has set a goal of completing review of individual
preauthorization requests within a 45-day period, this time period will vary between
submittals.
Preauthorization approval is documented in a Preauthorization Decision Document
(PDD), prepared by EPA. PDD contents include:
A short history of contamination at the site, and the various efforts to rectify
the problem
A summary of the analysis performed by EPA in granting prior approval
A summary of any issues unresolved at the time of PDD issuance
A statement of "terms and conditions" that the applicant must meet for the
preauthorization to remain valid.
The PRP may not begin work until the PDD is effective. The PDD is effective only
when it has been signed by the AA, OSWER and the consent decree has been entered.
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The FDD describes standards to be met if the PRP is to receive full reimbursement. In
certain circumstances, a claim will be preauthorized contingent on later Agency approval
of elements specified in the FDD.
Section 122(b)(4) of CERCLA states that, for cases involving preauthorization, the
Fund will assume costs of remedy failure up to a proportion equal to that contributed for
the original remedial action. In the event of remedy failure, the Fund portion may be met
either through Fund expenditures or by recovering costs from PRPs that were not part
of the original settlement. The covenant not to sue does not apply if the remedy fails due
to PRP negligence.
Mixed Work
Mixed work settlements allow EPA and the PRPs to conduct discrete portions of the
response activity. In mixed work settlements, EPA encourages PRPs to conduct the
RA. Mixed work settlements are appropriate in cases where mixed funding is being
considered and the following conditions exist:
The Region is reasonably certain of PRP cooperation.
Coordination of activities with PRPs does not present problems.
The RPM can identify, in detail, individual activities for which each party will be
responsible.
In addition, CERCLA section 104(c)(3) requires that the State pay or assure payment
of 10 percent of the RA, or 50 percent or greater if it's a State-operated facility. The
PRPs may enter into an agreement with the State and EPA under State law and
CERCLA where the PRPs pay 10 percent to the State and the State obligates funds for
use at the site; or the State may use its own funds to pay for any portion of its share
that cannot be paid for by PRPs. In either case, EPA and the State should enter into a
State Superfund Contract (SSC) to assure cost share and O&M responsibilities. Mixed
work and cash outs (discussed below) should not be considered unless the State's cost
share is reasonably certain.
Once mixed work is identified as a potential settlement alternative, OWPE and DOJ
should be notified.
Cash Out
Cash-out settlements require the PRPs to pay for a portion of the response costs up
front, while EPA conducts the response action. Cash-out settlements are not preferred.
Cash-out settlements with PRPs generally involve some of the following factors:
EPA is very confident about the expected RD/RA response costs.
The cash out will advance work at the site that might not proceed without the
settlement funds.
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The percentage of the total costs to be paid by settlors is substantial, unless
there are major liability or financial viability concerns.
The Agency has carefully evaluated evidentiary concerns regarding liability and
the value of the settlement and in light of substantial litigation risks believes that
settlement is warranted.
Equitable considerations exist for both settling and non-settling parties, including
the nature of any covenants not to sue in the cash-out settlement.
PRPs lack funds or the ability to secure competent technical support.
The RPM must notify OERR, OWPE and DOJ of Regional intent to pursue a cash-out
settlement. Consultation requirements are the same as for preauthorization settlements.
In general, cash-out settlements may occur at any stage of the remedial process.
However, once Fund-lead response activities are underway, cash-out settlement with
some of the PRPs may not be advantageous, since cost recovery generally will be
pursued once RA construction commences. Cash-out settlements may include a risk
premium that may partially offset EPA's risk due to uncertainties, such as remedy
failure or cost overruns.
Unlike preauthorization, there are no limitations to PRP liability for costs resulting from
remedy failure in a cash out. Therefore, any future obligations must be specified in the
cash-out agreement, including the covenant not to sue.
Additional information on mixed funding will be provided in the forthcoming OWPE/OECM
guidance "Mixed Funding Methodology."
De Minimis A de minimis settlement is a final settlement entered into with parties who meet the
requirements of section 122(g)(1) of CERCLA to achieve the goals described below. It is
noteworthy that a de minimis settlement may be incorporated into a global agreement
with the major contributors and EPA. This is beneficial to major contributors because de
minimis money goes to pay for the remediation of the site, instead of going to the general
Trust Fund. It is beneficial to de minimis settlors because they can receive contribution
protection from the major contributors as well as from EPA.
A PRP is considered de minimis if the settlement with each involves only a minor portion
of the response costs and the PRP is a:
De minimis generator (Section 122(g)(1)(A) of CERCLA): Both the amount of
the hazardous substances contributed by the party to the facility and the toxic
or hazardous effects of the substances contributed by the party to the facility
are minimal in comparison to other hazardous substances at the facility (e.g.
usually relatively small quantities generated); or
-19-
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De minimi's owner (Section 122(g)(1)(B) of CERCLA): As .the owner of the real
property at which the facility is located, the PRP did not conduct or permit the
generation, transportation, storage, treatment, or disposal of any hazardous
substance at the facility, did not contribute to the release or threat of release of
a hazardous substance at the facility through any action or omission, and the
party had no actual or constructive knowledge that the property was used for
the generation, transportation, storage, treatment, or disposal of any hazardous
substance at the time of purchase. (There are similarities between this provision
and the innocent purchaser defense in section 101 (35)).
Criteria for Eligibility for De Minimis Settlements
A PRP may settle as ademinimis PRP if:
Settlement (per PRP) involves only a minor portion of the response costs at the
site
Amount contributed by the individual PRP is minimal in comparison to other
hazardous substances at the site
Toxic or other hazardous effects are minimal in comparison to other hazardous
substances at the site
Settlement is practicable and in the public interest. EPA should evaluate the
overall case for practicability, including the case against viable non-de minimis
parties who may challenge the settlement. Challenges usually are based on
amount of payments bvde minimis parties and the basis of those payments.
Necessary Information for Generator De Minimis Settlements
In practice, de minimis settlements generally require:
Reasonably accurate and complete PRP waste-in information on waste
contributions, nature of substances, and financial viability to develop a
volumetric ranking for generator PRPs and make adjustments for non-viable
shares.
That cost estimates for the remedial activities at the site be readily available or
easy to develop, and the degree of uncertainty of these estimates be known.
Development of premiums for unknown costs and cost overruns.
Identification of remaining viable parties.
Potential De Minimis Generator Candidates
Characteristics of potential candidates include the following:
-20-
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Good waste-in lists with non-viable shares identified
Past and future costs identified, premiums developed
• Qs. minimis payment and remaining liability are appropriate.
Sites that do not make good candidates for d£ minimis settlements include those where:
Poor volumetric or orphan share information is available
Costs are highly uncertain
Potential d£ minimis parties have not conferred with major parties and
attempted to settle through them
Potential dj> minimis parties are not organized into one group
Potential de_ minimis parties are uncooperative in negotiations
• There are no viable non-d_e_ minimis parties to undertake the response action.
Timing De Minimis Settlements
Timing of de minimis settlements may involve very small contributors at the RI/FS
stage, but generally occurs at the ROD stage, when costs are known.
Consideration of the potential de minimis settlement includes:
Refining the volumetric contribution taking into account the assignment of non-
viable PRPs to all viable PRPs
• Determining a volumetric cutoff
Refining cost estimates, including past costs, RI/FS, RD/RA, and future costs
Developing a premium and/or reopeners to reflect the uncertainties of cost
estimates
• Presenting the settlement offer, including the model CD or AO, in response to the
PRP proposal or to initiate dialogue, and discussing this settlement offer with
potential de minimis and non-£le_ minimis parties.
Reopeners
The need for reopeners is determined on the basis of the certainty of costs and use of
premiums. In very early settlements (RI/FS stage), the reopeners should be more
expansive, and/or the premiums should be more substantial. In addition, volume cutoff
-21-
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levels should normally be set low, so that there can be a cash out based upon large
premiums based on worst case response cost scenarios.
Finalizing Settlement
If terms are agreed upon by all parties, the final agreement can be formalized through
either an AOC or CD. A record supporting the settlement must be developed. Under the
June 17,1988 delegations (14-13-B and 14-13-E), the first de minimis generator and the
first de minimis landowner settlements in each Region require Headquarters concurrence.
Additional cases are delegated with Headquarters consultation retained. DOJ
concurrence (and, on a CD, signature) is required for de minimis settlements for sites
where the total response costs exceed $500,000.
References
OSWER Directive 9834.7, "Interim Guidance on Settlements with De Minimis Waste
Contributors under Section !22(g) of SARA" (June 19,1987).
OSWER Directive 9834.7-1 A, "Interim Model CERCLA Section 122 (g) (4) De Minimis
Waste Contributor Consent Decree and Administrative Order on Consent" (October 29,
1987).
OSWER Directive 9835.9, "Guidance on Landowner Liability under Section 107(a)(1) of
CERCLA, De Minimis Settlements Under Section 122(g)(1)(B) of CERCLA, and
Settlements with Prospective Purchasers of Contaminated Property" (June 6, 1989).
OWPE, "Draft Dg Minimis Methodologies Paper" (April 28,1989).
Non-Binding An NEAR is an allocation of the total costs of response among the PRPs at a facility.
Allocation of Section 122(e)(3) of SARA allows EPA to develop NBARs and authorizes the Agency
Responsibil- to provide NBARs to the PRPs at its discretion. While NBARs may be useful, the PRPs
ity (NBAR) at multi-party sites usually undertake the allocation themselves. An NEAR is not binding
on the government or the PRPs and may not be admitted as evidence in court. The
costs associated with Agency preparation of an NBAR are to be paid by the PRPs.
NBAR preparation depends primarily on the type and completeness of volumetric data
available at the site. The NBAR allocation process is based primarily on the volume
contributed by the PRPs, although other factors, such as toxicity and mobility of the
hazardous substances, and relative treatment costs may be considered. The allocation
process is dependent on information collected during the PRP search.
The RPM and assistant Regional counsel have primary responsibility for developing
NBARs. NBARs may be prepared if requested by a substantial percentage of the PRPs.
When prepared, NBARs are usually developed toward the end of the RI/FS, but timing
may vary. NBARs may be provided to the PRPs after completion of the RI/FS. PRPs
may use NBARs to reach agreement among themselves regarding negotiating positions
with EPA.
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Settlement
Decision
Committee
(SDC)
The NBAR allocation of responsibility to each PRP may differ from the volumetric
ranking presented in special notice letters (SNL). Percentages previously associated
with non-viable parties in SNLs are allocated to the remaining financially viable PRPs. In
SNLs, the volume each PRP contributed is presented without adjustments. In NBARs,
volume from non-viable parties and orphan shares is distributed among the known viable
PRPs. This adjusted figure is further modified by the consideration of the following
settlement criteria:
Strength of the evidence against the PRPs
Ability of the PRPs to pay
Litigative risks in proceeding to trial
Value of obtaining the present sum certain
Inequities and aggravating factors
Nature of the post-settlement case.
The SDC comprises upper-level management officials and has been designed to give
timely action on national policy issues and issues that require upper management review.
The SDC consists of the following individuals:
Director, OWPE
Associate Enforcement Counsel for Waste, OECM
Director, OERR
Chief, Environmental Enforcement Section, DOJ
A Regional program representative
A Regional counsel representative
• An OGC representative, who participates on legal questions.
Regional representatives to the SDC serve on a six-month rotating basis. The SDC
meets monthly to address issues raised by members to the Director, OWPE.
The SDC coordinates decisions on policy issues raised by the Regions. The SDC will
decide settlement cases where decisions create precedent that may be transferrable to
other cases. In addition, the SDC will monitor the Regions' progress toward finalizing
settlements and pending deadlines.
-23-
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A A The Assistant Administrator Review team provides policy direction on settlement
Review concepts. The team is composed of the M, OSWER, the AA, OECM, and the
Team Assistant Attorney General, Land and Natural Resources Division, DOJ. The team
meets as necessary to resolve major policy issues at specific sites as directed by the
SDC.
Rna/iz/ng In order to finalize a settlement on time it is important to negotiate during the first 60
Settlement days rather than wait for the GFO before talking. Once the good faith offer has been
received, the negotiation team and the PRPs should move quickly to finalize a settlement.
Historically, the most successful method of finalizing settlement has been for the
Government (EPA/DOJ) to develop iterative drafts of the consent decree that show
changes on which PRPs comment. This process should provide for rapid identification of
major substantive issues requiring review by other layers of management or more
extensive discussion.
It is very important to have the drafts reviewed quickly by all parties because of the
tight negotiation deadlines. It is important to establish and adhere to deadlines. Section
106 unilateral administrative orders are an effective tool in driving PRPs who have
considerable interest in doing the work but are delaying negotiations to perform the
RD/RA.
The Regional Administrator, in consultation with DOJ, is expected to be the primary
decision maker on CERCLA settlement issues. Headquarters and Regional authority for
finalizing settlements is discussed in the first section of this chapter.
Referral While the settling PRPs are in the process of signing the consent decree, the RPM and
Package assistant Regional counsel must prepare a referral package for formal transmittal of the
agreement to DOJ. If the settlement has not been delegated, the goal is to ensure rapid
concurrence from Headquarters on the referral package. The referral package must
include:
Ten point settlement document
Draft complaint
Signed CD
Mini-litigation report (if not previously sent).
The DOJ referral package should identify the relief outstanding, including any past costs,
and identify non-settlors, assess their liability, their contributions to the site individually
and as compared to the settlors (with backup and including percentages), their ability to
pay, and set forth a strategy for pursuing non-settlors. If costs are to be written off or
not pursued, the rationale must be documented. Additionally, OECM and DOJ should be
notified of the referral and any non-settlors that will remain after settlement.
The RPM must also identify the resource needs for oversight of the RD/RA and begin
preparations to obtain a third party RD/RA oversight contractor.
-24-
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For RD/RA settlements that are delegated to the Regions, the completed referral
package must be sent to DOJ, with a copy to OECM and OWPE. The preparation of the
final referral package should take approximately 45 days. The final referral package
must be signed by the Regional Administrator. For non-delegated settlements, the
settlement is sent to OECM and OWPE with a copy to DOJ. OWPE provides
concurrence and sends the referral package to OECM. The AA, OECM must formally
approve the CD, which is then sent to DOJ for approval and lodging in the appropriate
court. After DOJ formally receives the consent decree, DOJ concurs on the CD and
"lodges" it in court. DOJ must also provide notice of the decree in the Federal Register
for a 30-day public comment period. The negotiation team is responsible for preparing
EPA's responsiveness summary to public comments. Non-settlors may object to the
settlement through adverse comments. The negotiation team should endeavor to
anticipate these objections to minimize complications with the court. The court will
review the public comments and EPA's responses before deciding whether to approve the
settlement. Upon approval, the decree is entered as a final judgment of the court.
Where OWPE and OECM have a consultation role, the draft package should be submitted
for review and approval. However, the final package is not required to go physically
through the concurrence chain.
Mucements If negotiations for PRP implementation of the RD/RA do not result in settlement, the
to A/on- Agency has several enforcement options. The Regions may issue a unilateral
Settlors/ administrative order (AOU) compelling the PRPs to implement the RD/RA. The Regions
Enforcement also may choose to litigate the case under section 106 of CERCLA. Section 106 orders
QpfJbns generally precede section 106 referrals. EPA may also use the Superfund to implement
the RD/RA and the Government may sue PRPs for cost recovery under section 107 of
CERCLA. If there is a partial settlement, depending on the nature of the outstanding
relief, the government may use section 107 or section 106 authorities.
Section 106 The Regional Administrator is authorized to issue section 106 AOUs to compel the PRPs
AOUs to implement the RD/RA. PRPs have a strong incentive to comply, since sections 106
and 107 authorize a court to assess penalties as well as treble damages for non-
compliance without sufficient cause. Section 106 orders require a showing of imminent
and substantial endangerment.
Section 106 The Regional Administrator may decide to refer the case to DOJ for section 106
Litigation litigation. The Region must prepare a referral package. The referral package is similar
to that described in Chapter XII, Cost Recovery.
Section 106 litigation also requires that the Agency prove that the site constitutes an
imminent and substantial endangerment to human health or the environment. This may
be based on the risk assessment in the Rl.
-25-
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Fund
Partial
Settlements
K. Post-
Referral
Actions by
DOJ
The use of the Fund to implement the RD may be limited by Regional availability of Fund
monies. If the PRPs have been recalcitrant or there is a Regional decision to fund the RD
if the negotiations fail, advance planning is crucial. A "planned obligation" must be
targeted in the SCAP in the fiscal year negotiations where the obligation is targeted.
This target is counted against the Region's total Fund budget. In some cases, the
scheduled initiation of Fund-financed activity may encourage recalcitrant PRPs to settle.
The application of the settlements incentives/disincentives concept may result in a
partial settlement for less than full relief. If some or all past costs are deferred to non-
settlors, EPA may pursue them under section 107. Under mixed funding settlements, the
recalcitrant PRPs may be held liable for the Agency's costs in implementing the RD and
RA, RD/RA oversight costs, and past costs.
If the decree covers less than all the remedial work, EPA may "carve out" discrete
portions of the remedy for which recalcitrants may be held liable.
DOJ has a substantial role in cases that are referred with settlement, referred without
settlement (sections 106/107) and in ongoing litigation. DOJ's review of referrals with
settlement involves an assessment of whether the settlement is in the government's
interest and of the legal terminology of the decree. DOJ's assessment of referrals
without settlement primarily involves a review of the sufficiency of the evidence
regarding liability, selection/implementation of response, and desired legal remedy, costs
and defenses. Ongoing litigation support is often resource intensive.
-26-
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III. PLANNING AND REPORTING REQUIREMENTS
A. Budget The RPM should be involved in the development of budget estimates of post-RI/FS
Requirements support needs. Post-RI/FS budget needs include RD/RA negotiations, referral
development and litigation support. The standard budgets for the support activities are:
RD/RA negotiations: $30,000
(for three quarters)
Referral development: $40,000
(for three quarters)
Litigation support: $24,000
(for 12 quarters)
RD/RA Oversight $37,500 per quarter
(4 quarters for RD,
6 quarters for RA)
The primary contract vehicle for RD/RA negotiations support is TES. The primary
contract vehicle for RD/RA oversight is ARCS.
The negotiation team should see if RD/RA funding from Superfund is available as an
option to be used if negotiations fail. Since the potential demands on the Fund exceed its
size, monies may not be available to initiate Fund-financed activity. If funds are
available, monies will be committed for the fiscal quarter in which negotiations are
scheduled to conclude. Initiation of Fund-financed activity should be planned in the fiscal
year preceding the scheduled activity, due to the potentially large amount of money
required for RD/RA activity. The availability of Fund money to implement the RD/RA is
a valuable tool to force the PRPs to negotiate.
B. Reporting Periodically, the RPM must review and update the information in EPA's automated data
Requirements systems. The RD/RA negotiation milestones (actual start date, date of issuance of
special notice) must be entered into CERCLIS. The planned start dates for RD/RA
negotiations are entered into CERCLIS when the site schedule is developed, and are
revised as necessary. RPMs are responsible for ensuring that an accurate CERCLIS
Site Information Form (SIF) is completed for RD/RA negotiations. Exhibit VIII-5 presents
a sample SIF for RD/RA negotiations. RPMs should use the following outline in preparing
the SIF:
A. Negotiation type Code/Name (AN=RD/RA Negotiations)
B. Lead (FE=Federal Enforcement, SE=State Enforcement)
C. Plan start/complete date (FYQ)
D. Actual start/complete date (MM/DD/YY)
E SPMS Target Status (P=Primary, A=Alternate)
F. SCAP Note (comments on negotiations)
G. Enforcement Activity Outcome Code/Name
-27-
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H. Number of PRPs involved in the negotiations
I Remedy Operable Unit
J. Remedy Type Code (RD1=Remedial Design, RA1=Remedial Action; sequence
number is required before system will add record).
K. Financial Requirements
1. Financial Type/Code
2. Financial Amount (Dollars required to support negotiations)
3. Financial Plan Date (FYQ)
4. Contract Vehicle (TES=Technical Enforcement Support)
5. Budget Source (E=Enforcement)
6. Case Budget Status (ALT=Alternate, APR=Approved)
7. Financial Note
In addition, if the site is a mixed funding candidate, Fund dollars should be planned for and
indicated on the event SIF. Settlement data should be shown on the settlement SIF while
litigation (section 106/107) should be shown on the litigation SIF.
RD/RA Negotiations are initiated when the first SNL is issued to the PRPs or when a
waiver of special notice is issued, or when the first general notice letter with expected
completion date is issued.
RD/RA negotiations are completed when :
The signed CD (section 106 or 106/107 referral with settlement) and ten-
point analysis is referred by the Region to either DOJ or EPA Headquarters;
or
A section 106 judicial referral for RD/RA without settlement is referred to
DOJ or EPA Headquarters; or
An AOU for RD or RD/RA is issued; or
A decision is made to proceed with RD as indicated by the obligation of RD
funds.
At this time an outcome code (item "G" above) should be recorded.
In addition, if the site is a mixed funding candidate, Fund dollars should be planned for and
indicated on the event SIF. Settlement dates should be shown on the settlement SIF
while litigation (section 106/107) data should be shown on the litigation SIF.
If the Region is targeting the site for SCAP purposes, the SCAP/SPMS code should be
"P." Otherwise it should be coded with an "A." All sites that have started negotiations
or are planned for negotiations and have a "P" SCAP/SPMS flag are targets for
completion. RPMs should keep the negotiation schedules up-to-date, changing them as
site conditions change.
-28-
-------
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judicial referrals to Headquarters seeking relief under section 106 are SPMS and SCAP
targets.
-29-
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IV. POTENTIAL PROBLEMS/RESOLUTIONS
A. Poor
Relationships
Among the
PRPs
B.
Multiple
Revisions to
Draft CD
C. Settling
with
Majors
Involved with
De Minimis
Settlements
D. Use of
Public
Relations
This section addresses some of the common problems that arise during RD/RA
negotiations. While each Region has different methods of resolving these problems, this
section discusses some of the more effective Regional experiences.
In large sites, interpersonal antagonisms can develop between the PRPs. The RPM and
assistant Regional counsel should provide information to the PRPs to assist them in
coalescing into a steering committee. The RPM should also recommend the use of
alternative dispute resolution methods to assist the PRPs in resolving their disputes.
Mixed funding may be appropriate if the great majority of parties are cooperative and a
minority are recalcitrant.
The specific language in the draft CD may cause numerous revisions to be made
between the PRPs and the Agency. The Agency's policy is that the strict negotiations
deadlines help force the PRPs to settle on issues in the language of the CDs. If the
deadlines are approaching and it appears that settlement is near, the Regional
Administrator may request a second 30-day extension from the AA, OSWER after the
initial 30-day extension. To avoid this situation, the negotiation team should insist on
short deadlines on revisions to the drafts. Furthermore, weekly or biweekly meetings
with the PRPs are advised. These meetings should be scheduled well in advance, so that
all parties are aware of the schedule for preparing revised drafts of the CD.
In some situations, major contributors to a site may be reluctant to negotiate RD/RA
settlement terms after some PRPs have settled early under de minimis provisions. The
case team may be able to avoid conflict with major parties by soliciting settlement
proposals from them prior to finalizing settlement terms with de minimis PRPs.
Additionally, the negotiation team may find it beneficial to explain the following
advantages of de minimis settlements to the major parties:
In cases where there are numerous PRPs, it may not be practicable and in the
public interest to sue all small parties. Early de minimis settlements therefore
may save major parties the expense and time of litigation.
EPA will require premiums from dj2 minimis settlors.
Monies from early de minimis settlements may provide start-up funds for major-
party conduct of RD/RA activity.
It also may be helpful for the negotiation team to keep the major party steering
committee advised of the status of de minimis settlement negotiations.
Effective use of the media may increase the impact of settlements on the PRP
community by providing examples of PRP participation in settlements. Publicizing PRP
participation in settlements creates an incentive for future PRP participation in other
-30-
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£ Inadequate
PRP
Searches
settlements, and enhances the public.policy implications of settlements, thus providing
PRPs with a policy rationale for their efforts. Additionally, press coverage of critical
pre-settlement actions (e.g., issuance of special notice, commencement of negotiations)
may be an effective tool in creating pressure on PRPs to settle expeditiously and
cooperatively. RPMs should identify sites as candidates for the use of public relations
tools as early as possible and enlist the assistance of Regional Office of Public Affairs
staff.
Negotiating PRPs may be less willing to settle when some of the PRPs at the site have
not been identified, or evidence of liability against identified PRPs is not strong enough for
those PRPs to decide to settle for their full share of cleanup costs. The negotiation team
should work closely with the civil investigator to ensure that a thorough PRP search is
conducted and all leads are investigated. The negotiation team should ensure that any
new information uncovered during negotiations is considered against the information
presented in the report. New information, when considered against information
discovered during the initial PRP search, may lead to additional PRPs or increase the
evidence of liability against already identified PRPs. The negotiation team should work
with the civil investigator to follow up on any leads that may encourage settlement.
F. Late Many PRPs wait until EPA solicits a settlement to challenge or question EPA's
Challenges to volumetric ranking. EPA should encourage the steering committee to set up a process for
Volumetric early challenge or the Agency should set up one itself.
Ranking
-31-
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V. REFERENCES
Policy OSWER Directive, "Interim CERCLA Settlement Policy" (December 5,1984).
Guidance OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1987).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OSWER Directive 9834.10A, "Model Notice Letters" (February 7,1989).
OSWER Directive 9839.1, "Interim Guidelines for Preparing Nonbinding Preliminary
Allocations of Responsibility" (May 16,1987).
OECM, "Covenants Not to Sue Under SARA" (July 10, 1987).
OECM, "Interim Guidance on Settlements with De Minimis Waste Contributors Under
Section 122(g) of SARA" (June 19,1987).
OECM, "CERCLA Model Consent Decree" (forthcoming).
OSWER Directive 9835.7, "Guidance on CERCLA Section 106 Judicial Actions"
(February 24,1989).
OSWER Directive 9835.9, "Guidance on Landowner Liability under Section 107(a)(1) of
CERCLA, De Minimis Settlements under Section 122(g)(1)(B) of CERCLA and
Settlements with Prospective Purchasers of Contaminated Property" (June 6,1989).
Memoranda OSWER Directive 9012.10-a, "Revision of CERCLA Civil Judicial Settlement Authorities
Under Delegations 14-13 B and 14-14 E (June 17,1988).
OECM, "CERCLA RD/RA Settlement Negotiations Checklist" ( January 26, 1988).
OWPE, "Comment on Strategy for Initiation of PRP-Financed Remedial Design in
Advance of Consent Decree Entry" (June 21,1988).
OWPE, "Consent Orders and the Reimbursement Provision Under Section I06(b) of
CERCLA" (June 12,1987).
OWPE "Draft De Minimis Methodologies Paper" (April 28,1989).
OWPE/OECM, "Mixed Funding Methodology" (forthcoming).
-32-
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Contacts OWPE, CERCLA Enforcement Division (202) 382-4810.
OECM, Deputy Associate Enforcement Counsel (202) 382-5324.
Training OWPE, CERCLA Enforcement Division, Compliance Branch offers periodic training on
mixed funding and de minimis settlements. For further information contact
FTS 382-4838.
-33-
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VI. ACTIVITIES CHECKLIST
OECM has developed a CERCLA RD/RA Negotiations Checklist (January 26,1988),
which is included in this chapter as an appendix.
-34-
-------
Appendix
-------
DRAFT
CHECKLIST FOR NEGOTIATING SETTLEMENTS FOR CERCLA REMEDIAL
DESIGN/REMEDIAL ACTION fRD/RA)
This checklist identifies the key issues to be
considered when preparing to conduct negotiations for RD/RAs,
either by way of a section 106 consent decree or a section 107
"cash out." It applies regardless of whether we follow the
section 122(e) "special notice" procedure or decide, in our
discretion, to negotiate without use of section 122 "special
notice." The checklist references several guidances with which
you should be familiar. In addition to the guidances identified
in the checklist, you also should be familiar with the Interim
CERCLA Settlement Policy. 50 Fed. Reg. 5,034 (Feb. 5, 1985).
I. Who are the PRPs available for negotiations?
A. Determine universe of PRPs
1. Have PRPs been ranked (generators in
particular) by volume/waste type?
2. If information is missing, can gaps be filled
through use of adminstrative discovery?
3. Are thrra fedeiil PRPs? If so have they been
noti.:.Le^. What contribution do we expect from
federal PRPs?
4. Are there municipal PRPs? If so, have they
been notified? How do we propose to deal with
them?
B. Evaluate liability issues
1. How strong is our liability case against each
potential RP?
2. Do one or more of the PRPs have possible defenses
[e.g.. does the case present innocent landowner
issues or transporter issues — is there evidence
that the transporter selected the site)?
3. Based on I 1 and # 2, are we focusing our efforts
on the PRPs from whom we are likely to get the
best settlement (i.e. . the big percentage PRPs
with no defense and against whom we have a strong
liability case)?
4. How strong is the evidence regarding (1) the
existence of a release or threatened release of
hazardous substances, and (2) the presence of an
imminent and substantial endangerment?
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- 2 -
a. Check administrative record: does it or will
it contain a finding of a release or threat
of release of hazardous substances; did the
PRPs contest this finding in their comments;
did we provide an adequate response to such
comments? (e.g.. PRPs may contend that our
sampling is inadequate because chain of
custody procedures weren't followed. See
OWPE's most recent Administrative Record
Guidance — which requires that we collect
and maintain this information in the record).
b. Check administrative record: does it or will
it contain an imminent and substantial
endangerment finding; did the PRPs contest
this finding in their comments; did we
provide an adequate response to such
comments?
C. Assets of PRPs
1. Do we need more information?
2. If information is missing, can we get it through
administrative discovery?
3, Are there any bankruptcy issues? Should proofs of
claim be filed?
4. Do seemingly asset-poor PRPs have insurance
coverage? Do we need more information on
insurance?
5. Should we establish a Superfund lien (See CERCLA
section 107(1)) upon the property which is the
subject of the remedial action? (See Guidance on
Federal Superfund Liens. September 22, 1987).
II. Strategy for negotiating
A. PRPs7 interest in negotiating
1. Did we send regular notice letters? If so, what
was the PRPs' response?
2. Have there been previous PRP settlements covering
the site (e.g.. a section 104(b) RI/FS
settlement, or an Administrative Order on
Consent)?
3. Did any PRPs submit public comments, pursuant to
CERCLA section 117, on the proposed plan?
-------
4. Have any PRPs submitted FOIA requests regarding
the site?
B. Steering committee
1. Is one already in existence?
2. If so, are the parties disposed to settle?
3. If not, should we foster creation of one?
a. Should we call a meeting?
b. Have we sent out a letter suggesting that the
PRPs organize?
C. Determine whether we should identify and solicit a
separate settlement from an identified class of de
minimis PRPs (this is particularly important for sites
with more than 50 PRPs)(See Guidance entitled Superfund
Program; De Minimis Contributor Settlements. 52 Fed.
Reg. 24,333 (June 30, 1987) and Interim Model
CERCLA Section 122 fa)(4) De Minimis Waste Contributor
Consent Decree and Administrative Order on Consent. 52
Fed. Reg. 43,343 (November 12, 1987)).
D. Determine whether we should do an NBAR (See Guidance
entitled Superfund Program; Non-Binding Preliminary
Allocations of Responsibility (NEAR). 52 Fed. Reg.
19,919 (May 28, 1987)) .
E. Determine whether any federal PRPs or municipal PRPs
will require special attention.
F. If there are liability issues and remedy issues,
consider whether to divide the negotations team into
separate units, one to handle liability issues and
consent decree matters, and one to handle technical,
remedy-related issues.
G. Ensure that steps are being taken to satisfy
administrative record requirements regarding our
discussions with PRPs.
H. Determine whether the Fund and State-share will be
available to implement the remedy if negotiations fail,
or if a section 106 AO or judicial action will be
required.
1. Determine whether the State will put up its 10
percent share of the remedy.
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- 4 -
2. Determine EPA's plans for funding remedial action
at the site.
3. If the Fund or State-share is not available, we
need to make sure that evidence is available to
establish an imminent and substantial
endangerment.
I. Have the State and Federal Natural Resource Damage
Trustees been consulted?
1. Will they be active participants in the
negotiations?
2. Have they raised issues that warrant intra-
government resolution?
Jo Time period for negotiations: As is discussed below,
negotiations will typically last for 120 days, with
short extensions permitted if required.
III. Compliance with special notice procedures
A. The Interim Guidance on Notice Letters. Negotiations.
and Information Exchange (Special Notice
Guidance)(October 19, 1987) requires the use of special
notice procedures in the "vast majority of cases" (See
Special Notice Guidance, p. 12). If we decide not to
use the special notice procedures, we must notify the
PRPs in writing of that decision. Section 122(a).
B. Timing issues
1. Has DOJ received 60 days notice before EPA issues
the special notice letters which start the special
notice process? (See Special Notice Guidance, p.
13).
2. Are there compelling reasons to send out the
Special Notice with the RI/FS or with the ROD?
The Region has discretion to send out special
notice letters anytime between before the RI/FS is
released and after the ROD is issued, but the
Special Notice Guidance strongly encourages the
Region to send out the letters no later than when
the RI/FS and Proposed Plan are released (the
Region must obtain written HQ (OWPE and OERR)
approval to issue the special notice letters with
the ROD)(See Special Notice Guidance, p. 17).
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- 5 -
3. Negotiations will vary depending on the timing of
the special notice letters.
a. Does the Region have appropriate technical
experts available to discuss remedy issues?
Releasing notice letters simultaneously with
the release of the RI/FS lets PRPs play an
active role in the remedy selection process
because EPA's proposed remedy is less
definite. Consequently, it will be
especially important to have access to
technical experts during the negotiations on
technical issues.
b. If the ROD was signed before the Special
Notice is sent out, have the PRPs submitted
comments on the proposed remedy? Was there
adequate opportunity to comment? Releasing
the special notice letters simultaneously
with the ROD gives PRPs a smaller role in the
remedy selection process. PRPs are limited
to participating in EPA's administrative
record process and should have already
submitted written comments during the public
comment periods afforded under CERCLA. Thus,
there should ordinarily be less give and take
on the technical issues, and ordinarily less
need for active technical support in the
negotiations.
C. Draft Consent Decree — The Special Notice Guidance
indicates that a draft consent decree should be ready
for distribution with the special notice letters (p.
20).
1. Have EPA Regional/OECM managers and EES Assistant
Chief approved the draft C.D. before it is
distributed?
2. Do any unique aspects warrant higher level policy
evaluation? (Oftentimes, coordination of
EPA/DOJ policy makers will be needed after PRPs
have countered, e.g.. PRPs may demand an
exceptional circumstances release, § 122(f)(6)).
D. Moratorium — Under the Special Notice Guidance and
section 122 the Agency must refrain from site activity
for 60 days following issuance of the special notice so
that the PRPs can put together a "good faith" offer.
If the PRPs do so, the moratorium on EPA activity
(except, possibly, RD work) continues for another 60
days. If the PRPs don't make a good faith offer, the
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- 6 -
moratorium ends and we can proceed under 104 and/or
106.
1. What constitutes a good faith offer?
a. Two major components: i) whether the PRPs
offer to do or finance a substantial portion
of the remedy (mixed funding, de minimis.
and covenant not to sue issues may be
raised); ii) whether the PRPs' offer goes to
a remedy other than the remedy EPA recommends
in its proposed plan (or, if the special
notice letters are distributed with the ROD,
whether the PRPs' offer goes to a remedy
other than the remedy which EPA selected in
the ROD)?
b. See generally Special Notice Guidance, p. 21
for the other requirements for a "good faith"
offer.
2. The RA can extend this 120 period for 30
additional days when settlement is "likely and
imminent." An additional extension beyond 30 days
may be approved only by the AA for OSWER. (See
Special Notice Guidance, p. 23; Interim Guidance:
Streamlining the CERCLA Settlement Process).
IV. Cost Recovery Component of Case
A. Applicable Guidance: (1)Draft Guidance on Maximizing
the Recovery of Interest in Cost Recovery Cases, July
14, 1987; (2) Comptroller Policy Announcement 87-17:
Interest Rates for Debts Recoverable Under SARA; (3)
Procedures for Documenting Costs Under CERCLA § 107
(Lucero, January 30, 1985); (4) Financial Management
Procedures for Documenting Superfund Costs (Office of
the Comptroller, Sept. 1986) ; (5) Superfund Indirect
Cost Manual for Cost Recovery Purposes FY 1983 through
FY 1986 (Office of the Comptroller, March 1986) ; (6)
Superfund Indirect Cost Update (Financial Management
Division, January 5, 1987); (7) Superfund Final
Indirect Cost Rates for Fiscal Years 1985 and 1986; and
(8) Cost Recovery Actions Under CERCLA (OECM, August
1983)).
B. Have we assembled cost documentation? Note that this
is a time consuming process and there is often a long
lag time between the time when documentation is
requested and the time when it is provided.
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- 7 -
C. Have we developed a total cost figure? Does it
include an amount for indirect costs and an amount for
interest?
D. Have we sent out a demand letter?
E. Has DOJ developed a total cost figure and assembled its
cost documentation?
F. If ATSDR/CDC have been active at the site, have we
determined the amount of their costs?
V, Strategy for Settlement
A. Is the case appropriate for a separate de minimis PRP
settlement?
B. Mixed Funding (See Guidance entitled Evaluating Mixed
Funding Settlements Under CERCLA. October 20, 1987)
1. Is the case appropriate for possible mixed
funding?
2. If so, what percentage should the government bear?
3. NB: The Mixed Funding Guidance indicates that the
Regions should analyze both whether mixed funding
is appropriate at a particular site and, if so,
what type is best, before sending out special
notice letters (p. 15). As a practical matter, it
will be very difficult for the Regions to complete
this analysis before sending out the special
notice letters because the Regions will not yet
know which PRPs are interested in settling.
Without knowing which PRPs are interested in
settling, it obviously will be very difficult to
evaluate what kind of offer is acceptable
(including what type, if any, of mixed funding
arrangement would be acceptable).
C. Covenant not to sue (See Guidance entitled Covenants
Not To Sue Under SARA. July 10, 1987)
1. Identify whether standard reopeners will be used
or whether a special covenant is appropriate based
on either (1) § 122(f)(2) or (2) § 122(f)(6)
(extraordinary circumstances).
D. Natural Resource damages
1. Has there been an evaluation?
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- 8 -
2. Does the trustee have a bottom line?
E. What is the position of the State regarding the
settlement? Does it want to be a party to the Consent
Decree?
F. Citizen participation
1. Are any toxic tort suits pending?
2. Does the public have a technical assistance grant?
3. Do we anticipate active citizen opposition/support
regarding remedy/settlement? Were a large
number of citizen comments submitted? Are citizen
issues being addressed?
G. The role of the Settlement Decision Committee (SDC) —
EPA has established a procedure for elevating
settlement issues to upper-management. (See Interim
Guidance: Streamlining the CERCLA Settlement Decision
Process). Members of the SDC include: the Chief of
EES, the Director of OWPE, OECM's Associate
Enforcement Counsel for Waste and, on a rotating
basis, one Regional Counsel and one Regional Divison
Director for Waste.
1. If an EPA/DOJ or Federal/State dispute arises over
the terms of a settlement, it should be discussed
immediately with the appropriate EPA management
and EES Assistant Chief to determine if SDC
resolution is proper. (Deadlines are tight — do
not allow disagreements to fester).
H. Deadline Extension — Settlement negotiations can be
extended 30 days beyond the 120 Moratorium period with
permission of the Regional Administrator, and beyond 30
days with the permission of the Assistant Administrator
for OSWER. (See page 6 above, § III.D.). If an
extension is required it should be discussed with the
appropriate EPA and DOJ management so that the
necessary extension can be obtained.
VI. Finalizing the Consent Decree
1. AAG and DAG approval — Within one week after the
consent decree is finalized and sent to the
Defendants for signature, the requisite approval
package should be sent to the AAG for approval.
The AAG should be given a separate signature page
so that once the consent decree is received from
-------
- 9 -
EPA it can be lodged and noticed in the Federal
Register.
2. AA-OSWER/AA-OECM/RA approval — Within one week
after the consent decree is finalized and sent to
the Defendants for signature, the requisite
approval package should be sent to the RA for
approval. Once the RA signs the decree, the
package should be sent to the AA-OSWER and the AA-
OECM for their approval.
VII. Proceedings Against Non-Settlors
A. In the event that settlement negotiations fail, are we
prepared to issue an AO, or to proceed with a section
106 action?
B. In the event that viable non-settlors remain where
there is a settlement with less than 100% of the PRPs,
(a) are we able to segregate out a portion of the
cleanup, e.g., 0 & M (if so, should we issue an AO?),
and (b) are we able to proceed expeditiously against
the non-settlors under section 107 for past costs and a
declaratory judgment where there is a mixed-funding
settlement?
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RD/RA IMPLEMENTATION
I. DESCRIPTION OF ACTIVITY 1
Introduction 1
RD Activities. 1
RA Activities 1
RD Initiation 2
Ste Access 2
II. PROCEDURES AND INTERACTIONS.................... 3
III. PLANNING AND REPORTING REQUIREMENTS..................................... 4
A. SCAP/SPMS 4
SIF Instructions for RD/RA Implementation 4
Remedial Design Activities 5
Remedial Action Activities 5
IV. POTENTIAL PROBLEMS/RESOLUTIONS 6
A. Oversight 6
B. lnceritivesforSua»sslulPerfcirrnance 6
C. Corrective Actions 6
D. Non-settling PRPs Deny Site Access To Settling PRPs 7
V. REFERENCES 9
Guidance 9
Manuals 9
Contacts 9
Training 9
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RD/RA IMPLEMENTATION
Introduction
RD Activities
RA Activities
I. DESCRIPTION OF ACTIVITY
When PRPs conduct remedial design and remedial action (RD/RA) activity, the PRPs
must perform these activities in accordance with the terms of the settlement agreement.
The RPM or State personnel oversee the PRP-conducted response activities. This
chapter provides a brief overview of the general sequence of events that occur during a
PRP-conducted RD/RA but does not discuss specific procedures and interactions. Exhibit
IX-1 presents an overview of the RD/RA implementation process for PRP-conducted
activity. Additional guidance on the specific roles and responsibilities of the RPM as well
as the procedures and practices to be used in overseeing the implementation of the RD
and RA will be available in the revisions to the RD/RA Guidance document being
prepared by the Office of Emergency and Remedial Response (OERR), Hazardous Site
Control Division (HSCD).
In addition to the overview of the process, two important enforcement policies are
described in this chapter. The first policy allows PRP-lead RD activity to begin as soon
as the consent decree has been lodged with the court. The second policy relates to the
Agency's role in helping PRPs obtain site access if they are unable to do so with a good
faith effort.
The RD phase of the project begins when the PRP selects qualified in-house staff or
engineering contractors to prepare detailed plans and specifications for the remedial
action. The RD often requires field work to confirm or define the site conditions and may
include treatability studies if they were not done during the Remedial Investigation/
Feasibility Study (RI/FS) phase. In addition, the PRP should obtain all the necessary
permits, approvals and site access agreements during the design phase.
A remedial design work plan should be prepared that clearly and concisely states the
activities and schedules of deliverables during the RD phase. Interim deliverables for a
design are usually submitted for the conceptual phase at about 30 percent completion,
and for the pre-final design phase at 90 percent completion.
The responsibilities of the PRP and the oversight activities of the RPM during this phase
are shown in Exhibit IX-2. The responsibilities of the RPM will be further explained in the
revisions to the RD/RA guidance being prepared by HSCD.
During the RA phase, the remedy for the site is constructed. The PRP is responsible for
ensuring that the construction contractor fulfills the requirements of the plans and
specifications of the project, and for overseeing change orders to the construction
contract, if they are needed. A change order is a written modification to the contract
authorizing changes to the project due to changes in the site conditions or project needs.
The responsibilities of the PRP and the oversight activities of the RPM are shown in
Exhibit IX-3. The responsibilities of the RPM will be further explained in the revisions to
the RD/RA guidance being prepared by HSCD.
-1-
-------
RD Initiation In the past, when PRPs conducted RD/RA activities, the RD did not start until the
consent decree was entered as final by a Federal district court judge. As a result, the
PRP's RD/RA projects sometimes were delayed for 12-15 months after the ROD was
issued.
These delays in initiating remedial design are not consistent with the Agency's efforts to
expedite site clean-up and meet the statutory goal for remedial action starts. Therefore,
the initiation of PRP-conducted RD activity is no longer dependent upon the court's entry
of the consent decree. The Agency's strategy is to encourage the PRP to agree to
settlements wherein engineering design work can proceed upon the lodging of the consent
decree by EPA, or where litigation is already pending, upon execution of a stipulation
obtained before the start of the RD. By implementing this strategy, RD activities may
be initiated before a consent decree is entered. In such cases, the RPM must exercise
his/her oversight authority to ensure that the PRP is conducting the RD in accordance
with the terms of the settlement agreement.
This strategy of encouraging the PRP to begin the RD as soon as the settlement is
lodged will allow PRP-lead projects to begin at approximately the same time as a Fund-
lead project for the site.
Site Access The PRP is responsible for obtaining the necessary site access. Securing appropriate
site access early in the RD phase will ensure that no unnecessary construction delays
will be caused by either the site owner or the adjoining property owners. RPMs should
check to see that the site access obtained by the PRP extends for the duration of the
RA and the O&M phases of the response activities when appropriate.
Voluntary access should be obtained whenever possible. Techniques for facilitating
voluntary site access include personal contacts with adjacent property owners and a
good community relations campaign. If the PRP has difficulty in obtaining voluntary site
access, the PRP should notify the RPM in writing. Upon receiving this written notice, the
RPM should consult with the Office of Regional Counsel (ORC) and the HSCD Regional
Coordinator for advice and assistance.
Section 104(e)(5)(b) of CERCLA authorizes the Agency to either seek an administrative
order to prohibit interference with entry or to go directly to court to obtain compliance
with its requirement for entry. EPA may use this authority whenever it can establish
that there is a reasonable basis to believe that there may be a release or a threatened
release of a hazardous substance and access is necessary to carry out response or
determine need for response.
Under section 106(a) of CERCLA, the government may also petition a court to grant an
injunction directing immediate compliance with the request for entry. This authority may
only be invoked if EPA can show that there is an imminent and substantial endangerment
to public health and welfare or the environment because of a release or threatened
release from a facility. A case example of a non-settling PRP denying site access to
settling PRPs is discussed in Section IV of this chapter. For a more thorough discussion
of site access, see OSWER Directive 9829.2 "Entry and Continued Access Under
CERCLA" (June 5,1987).
-2-
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Exhibit IX-1
Overview of
RD/RA Implementation Process for
PRP-Conducted Activity
ROD Approved
Consent Decree in Court
Approval Process (prior to entry)
Remedial Design (RD)
Remedial Action (RA)
Operation & Maintenance
Post Closure
Monitoring
CERCLA§107
Cost Recovery Action
JfVf
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'if:
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Exhibit 1)
Oversight Activ
PRP-Conducted Rer
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II. PROCEDURES AND INTERACTIONS
This section will be developed by OERR/HSCD once the RD/RA guidance has been
revised.
-3-
-------
A. SCAP/
SPMS
SIF
Instructions
for RD/RA
Implementa-
tion
III. PLANNING AND REPORTING REQUIREMENTS
RPMs must ensure that current information on RD/RA activities is entered into
CERCLIS for the SCAP. This section discusses the planning and reporting requirements
for RD/RA activities. Exhibit IX-4 sets forth the SCAP/SPMS targets and measures
for RD/RA activities. RPMs also are responsible for ensuring that an accurate
CERCLIS site information form (SIF) is completed for RD/RA activities. Exhibit IX-5
provides an example of a completed RD/RA SIF.
The RPMs should complete the SIF using the example outline of fields and values:
A. Operable Unit (01)
B. Event (RD = Remedial Design, RA = Remedial Action)
C. Lead (F = Fund, RP = PRP financed work under Federal order, S = Federal
financed work by a State, PS = PRP under State order with EPA oversight)
a Plan start/complete date (FYQ)
E Actual start/complete date (FYQ)
F. SPMS Target (P = Primary, A = Alternate, Q = Delayed)
G. SCAP Note (Capping)
H. Subevent Type (AC = Contract Award, this is required for counting post-SARA
RAs)
I Plan/Actual start/complete date (FYQ, MM/DD/YY)
J. Takeover Flag (See below)
K. First start/complete (A = First and only; B = First of several; C = Subsequent,
but not last of several; D = last of several)
L Event Start NPL Indicator (Y/N)
M. Financial Requirements:
1. Financial Type (P = Planned Obligation)
2 Budget Source (R = Remedial)
3. Financial Amount (Amount required for oversight if PRP lead RD/RA)
4. Plan/Actual Financial Date (FYQ, MM/DD/YY)
5. Financial Vehicle (ARC = Alternate Remedial Contracting)
6. Fund Priority Status (APR = Approved, ALT = Alternate)
For a Fund-financed RD (F, S, SE, and EP leads), the start date is the date of the first
obligation for the RD. For a PRP-conducted RD (MR, RP, and PS leads), the date the
contract is awarded by the PRP is the start date. For PS lead, the date the State
order for RD is signed or the date the State gives the PRPs notice to proceed with the
RD is the start date.
For a Fund-financed RA (F and S leads), the start date is the date of the first RA
obligation. For a PRP-lead RA, the date the RD is approved and accepted is the start
date.
The completion date for an RD, PRP- and Fund-financed, is the date EPA or the State
concurs on the approved and accepted design, whichever is later.
-4-
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Exhibit IX-4
SCAP/SPMS Targets and Measures for RD/RA
SCAP/SPMS Targets
ACTIVITIES
Remedial Design (RD) (S/C-4)
First RD Start
Subsequent RD Starts
Final RD Start
Remedial Action (RA) Start (S/C-5)
First RA Start - RP
First RA Start - Fund
Subsequent RA Start - RP
Subsequent RA Start - Fund
Final RA Start - RP
Final RA Start - Fund
NPL Sites with RA Starts Post-SARA
Final RA Completions
SPMS
TARGET
X*
X*
SCAP
TARGET
X
X
X
X
X
X
X
X
X
X
X
QUARTERLY
TARGET
X
X
X
X
X
X
X
X
X
X
X
X
X
ANNUAL
TARGET
X
X
X
X
X
X
X
X
X
X
X
X
X
* The SPMS target combines first, subsequent and final as a s ngle target.
SCAP/SPMS Measures
ACTIVITIES
RD Completions
RA Completions
RA On-Site Construction
SPMS SCAP
REPORTING PLAN/REPORT QTRLY
X X
X X
X X
ANUAL
X
X
X
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