UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON, D.C. 20460

^«o<<*
                                                           OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPONSE
 MEMORANDUM

 SUBJECT:   Transmittal of  the FY  1991  Update of  the Enforcement
           Project Management Handbook
 FROM:      Bruce M. Diamond, Directo
           Office of Waste Program Enforcement

 TO:        Distribution

      This  memorandum  transmits  the   FY   1991  update  of  the
 Enforcement  Project  Management  Handbook  to  Headquarters  and
 Regional offices.   This updated version  of the Handbook supersedes
 the one published in July 1989.

      The Handbook is intended to be  a basic reference and training
 manual to  assist  Remedial  Project  Managers  (RPMS)  and On-Scene
 Coordinators   (OSCs)   in  planning,  negotiating   and  managing
 Potentially Responsible Party (PRP)  searches and PRP-lead actions.
 It provides an overview  of  each phase  of the enforcement process
 and discusses 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 Debby Thomas in the Contracts and Planning Branch
 of CERCLA Enforcement Division at FTS 398-8656.

 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, Walter
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.

In addition,  the following staff participated in the FY 1991 update of this document:  Jan Baker, Matt
Charsky,  Paul Connor, Allen Dotson, Frank Finamore, Steve Els, Jeff Heimerman, Linda Priddy, Fred
Seitz, Renee Wyn

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 and Monica  Lamote served as Project Managers 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/STARS Cycle
      Index

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                                    ACRONYMS
AA, OSWER
AAG
AO
AOA
AOC
ARARs
ARCS
ATSDR
BODR
CA
CB
CD
CEAT
CERCLIS/
  WasteLAN
Cl
CLP
CPM
CRC
CRC
CRI
CRP
CWA
Assistant Administrator for Solid Waste and Emergency Response
Assistant Attorney General
Administrative Order
Advice of Allowance
Administrative Order on Consent
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/Waste Local Area Network
Civil Investigator
Contract Laboratory Program
Critical Path Method
Community Relations Coordinator
Cost Recovery Coordinator
Community Relations Implementation
Community Relations Plan
Clean Water Act
                                         -1-

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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
EPCRA       -       Emergency Planning and Community Right-to-Know Act
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
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
HSCD         -       Hazardous Site Control Division
                                           -2-

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IAG          -       Inter-Agency Agreement
IDC          -       Indirect Cost
IFMS         -       Integrated Financial Management System
IMC          -       Information Management Coordinator
LOE          -       Level of  Effort
LIRA        -       Long-Term Response Action
MSW         -       Municipal Solid Waste
NBAR        -       Non-Binding Preliminary Allocations of Responsibility
NCR         -       National Contingency Plan
NEIC         -       National Enforcement Investigation Center
NOAA        -       National Oceanic and Atmospheric Administration
NPB          -       OE National Project Branch
NPL          -       National Priorities List
NRC         -       National Response Center
NSD          -       Negotiation Support Document
O&M         -       Operation and Maintenance
OE           -       Office of  Enforcement
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
                                          -3-

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ou
OWPE
FDD
PNRS
PRAP
PRP
QA/QC
QAPP
QAPP/FSP
RA
RCRA
RD
RI/FS
ROD
RP
RRT
SAIC
SAP
SARA
SCAP
SDC
SE
SEAM
SETS
SIF
Operable Units
Office of Waste Programs Enforcement
Preauthorization Decision Document
Preliminary Natural Resource Surveys
Proposed Remedial Action Plan
Potentially  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 Exposure Assessment Manual
Superfund  Enforcement Tracking System
Site Information Forms
                                          -4-

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SMOA
SMP
SNL
SOW
SPO
SPUR
STARS
TAG
TAT
TBC
TBD
TDD
TDD-AOC
TES
TESWATS

TSC
TSCA
TST
UAO
USCG
WAM
Superfund Memorandum of Agreement
Site Management Plan
Special Notice Letter
Statement of Work
State Project Officer
Software Package for Unique Reports
Strategic Targeting  Activities Reporting System
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
Technical Support Team
Unilateral Administrative Order
United States Coast Guard
Work Assignment Manager
                                         -5-

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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 mqy 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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                             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/STARS cycle and CERCLIS/WasteLAN.

Format                      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.

Applicability                  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
Obtaining PRP
Response
Overseeing PRP
Response
Recovering EPA's
Costs
This introduction provides a broad overview of the Superfund enforcement program. The
chapter is divided into four major sections:

        Goals

        Background

        Overview

        Players

        Additional Enforcement Resources

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.

A primary goal of the enforcement program is to obtain voluntary settlement, or if
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.

Once the PRP has agreed to take response actions at a site, the goal of the
enforcement program  is to ensure that tKe 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.

In situations  where EPA has performed  removal or remedial activities at the site or
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.
                                               -1-

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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 dj* 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
                                               -2-

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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 (ARARs) 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.  In fact, the first and
second of these deadlines were met on or ahead of schedule with  significant PRP
commitments.  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.
                                               -3-

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PHP 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 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 wilt 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
                                               -4-

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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 timeline in
Exhibit 1-1, however, depicts the  general flow of enforcement and response activities at a
CERCLA site.  More detailed information on 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 trie 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 89, the PRPs began an RI/FS for the site's second operable
unit, which is scheduled to be completed in the first quarter of FY 92. Negotiations for
the second operable unit RD/RA are scheduled from the first to the third quarter of FY
92, and the PRPs will start the RD/RA in the fourth quarter of FY 92. 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, OE provides legal advice and coordination
for all formal enforcement actions, with a particular focus on judicial cases. In major
cases,  OE reviews case referral packages before they are sent to DOJ. They also
comment on major precedent-setting settlements, as does OWPE.
                             -6-

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Other Federal
Agencies
States
Natural Resource
Trustees
EPCRA
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.

V.  ADDITIONAL ENFORCEMENT RESOURCES

This handbook does not address enforcement issues specific to the emergency release
notification provisions of CERCLA §103 or to Federal Facilities. Available  resources
that address these specific issues are  briefly highlighted below.

A detailed  discussion of enforcement of CERCLA §103 and the Emergency Planning and
Community Right-to-Know Act (EPCRA) §§302-312, which is related to emergency
planning, notification, and right-to-know, can be found in the Enforcement Reference
Manual for the Emergency Planning and Community Riaht-to-Know  Act (EPCRA1 §§302.
303.304. 311. and 312. and CERCLA S103 finalized by OWPE on August 8,1990.
Numerous administrative enforcement actions have already been brought against
companies for failure to report releases in a timely manner.  RPMs and OSCs who are
aware of potential violations should contact their  Regional EPCRA enforcement
coordinator for further assistance  or information.
                                               -7-

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Federal Facilities   The Office of Federal Facilities Enforcement in Headquarters has prepared several
                  guidance documents and has developed model provisions for CERCLA Federal Facilities
                  agreements. A useful reference and guidance  document on Federal Facilities is the
                  Federal Facilities Hazardous Waste Compliance Manual. OSWER Directive 9992.4
                  (January 9,1990).
                                               •S-

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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.     PRPSearch	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	7
              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.     AX Negotiations and UAO Assistance	9
              Administrative Orders on Consent (AOC)	11
              Unilateral Administrative Orders (UAO)	12
              Issuance of UAOs	13
              Activation of Fund During AO Issuance	13
              Replacement of UAO with AX	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

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             SCAP/STARS	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

       Policy  	20
       Guidance	20
       Manuals	20
       Contacts	21

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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 Superiund Removal Procedures Manual. (February, 1988).
                  Volume 1  of the Superfund Removal Procedures Manual. "Action Memorandum
                  Guidance" was revised on September 26,1990.  Volume V of the manual sets forth
                  specific procedures for pursuing enforcement actions at a removal site.

Defihffibn          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
                                         -1-

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              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
              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.

Types of     EPA has classified removals into the following three categories based upon the site
Removals     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-Chtical-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.

Removal     According to section 101 (23) of CERCLA and section 300.415 of the NCP, the response
Activities     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;

                     Stabilization of berms, dikes, or impoundments-where needed to maintain the
                     integrity of the structures;
                                       -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
                             I
                    Follow up on Early Search
                       Activities and Notice
                             I
                    Enforcement Addendum to
                       Action Memorandum
                                                No
                          Issue Notice
                     (Possibly with draft AOC)
                       Make Administrative
                    Record Available to Public
                             ±
                    Oversight of PRP Removal
Coordination of Removal Response
         Assess Removal
        Response Options
     Final Decision on Removal

     Administrative Record File
               I
     Signed Action Memorandum
                                                                                       Initiate Fund-
                                                                                     Financed Removal
      Public Comment Period
              i
       Written Response to
       Significant Comments
1 This general overview of removal enforcement may not apply in all situations, especially emergencies

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                     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;

                     Excavation, consolidation, or 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;

                     Containment, treatment, disposal or incineration of hazardous materials -- where
                     needed to reduce the likelihood of human, animal, or food chain exposure;

                     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 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.

Atfm/n&fra-    Section 113(k) of CERCLA requires that the Agency establish an Administrative Record
tive 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.

              Section 300.800 of the NCP and associated preamble discuss Administrative Record and
              public participation requirements. In addition, guidance on Administrative Records is
              provided in OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for
              Selection of CERCLA Response Actions" (December 3,1990).  Exhibit II-2 depicts the
              various 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 the NCP and OSWER Directive 9833.3A-1 cited above,
              for information on the 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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                  1   PROCEDURES AND INTERACTIONS

A.  PRP Search  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.

    PRP         Where PRPs are known and able to perform the removal, EPA prefers that they
    Response     undertake the response action pursuant to an administrative order. A PRP investigation
    Policy        should be a part of the preliminary assessment that an OSC conducts under section
                  300.410 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.

    PRP Search  A PRP search strategy is important.  As background to conducting removal PRP
    Strategy     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 II-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 II-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.

    Emergency    In emergency situations where the PRP is not immediately known, the OSC usually
    Situation     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, and often more extensive, phase of PRP identification efforts should continue.
                                          -5-

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              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.

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 generators and financial viability
              to obtain additional evidence during the PRP search.

Non-          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 and generators.  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.
                                      -6-

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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
    Planning      conducted with greater success.

    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  UAO)

                          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.  See OSWER Directive No.
                  9360.3-01 "Action Memorandum Guidance" Volume One of Removal  Procedures Manual
                  (September 26,1990). 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
                                          -7-

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                          Review problems posed by site

                          Develop clear statement of work to be done consistent with draft Action
                          Memorandum

                          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, advise them of the  intended response action, and afford them
                  opportunities to comment on the removal action.  Where the circumstances allow, there
                  often will be two notice letters:  (1) notice  of potential 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 potentia liability and requesting
                  removal action  by the PRP.  Except in limited emergency situations, it is  inappropriate to
                                           -8-

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D.
               provide initial notice by a unilateral administrative order.  Exhibit 11-4 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.

Notification in   In emergencies, the OSC may notify known PRPs orally. The  Regional program office
Emergency     then should prepare and send a general notice letter to the PRP confirming the oral
Situations      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.

Notification in   In time-critical situations, the OSC may initially notify PRPs orally and follow the same
Time-Critical   procedures as in an emergency.  Whenever possible, it is preferable that notice letters be
Situations      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.

Notification in   In non-time-critical situations, procedures for obtaining PRP response are more likely to
Non-Time-      involve formal negotiations which may be invoked by issuance of a special notice or
Critical         section 122(e) letter. First, the PRP search should be reviewed and any outstanding
Situations      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 1'22(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.

 AOC          The site  lead determination and enforcement strategy (see section B of this  chapter) will
 Negotiations   determine the general approach  to negotiating activity at  the site.  Where negotiations
 and UAO      are part  of the strategy and time allows, the preferred approach to negotiations is to
 Assistance    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
                                           -9-

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as possible. While it is appropriate to advise PRPs that EPA may issue a Unilateral
Administrative Order (UAO) 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
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 UAO, 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
                        -10-

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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
    Continue Search Follow-up
            Activities
        Initial
      PRP Search
      Successful?
                                                                           Regional Technical Enforcement
                                                                          	;	Personnel
                                  Determine Extent of Continued
                                      Search and Followup
                                                Personnel
                                          Notify (oral/written) PRP of
                                              Potential 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
                                            Negotiations Result in
                                                  AOC?
       PRP Agree to
       Terms of AO?
                                                                    YES
                                                                                    Regional Administrator
                                               Issue AOC
Enter into Consent Order or
Perform Removal Based on
  Unilateral Agreement **
   Initiate Fund-financed
Response Followed by Cost
 Recovery or Initiate § 106
 Litigation to Enforce Order
                                                  PRP
                                              Initiate Cleanup
          X
       QSC/RPM
   Monitor PRP Cleanup
           ** UAO does not have to be converted to AOC for PRP to initiate response actions.

-------
              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)
tive 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.
                     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 access 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.
                                      -11-

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                     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

                     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.

              •       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  (UAO).  In
tive Orders    addition, if viable PRPs fail to respond appropriately to the oral/written notification and
(UA 0)        negotiation process described above, Regions should pursue issuing a CERCLA section
              106 UAO 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. Also, UAOs usually contain a provision
                                      -12-

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                  requiring notice of intent to comply within a specified period and the UAO usually does not
                  contain past costs, stipulated penalties, dispute resolution, or force majeure clauses.

    Issuance of   Regional enforcement staff should issue an UAO before Fund activation whenever a
    UAOs        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
                  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
    UAO with
    AOC

    Enforce-
    ment of AO
£   Oversight
     Of PRP
     Response
The recipient of the UAO 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 non-compliance:

       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 UAO wilt 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
(OE) 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).
                                         -13-

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                  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.

                  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.

    Oversight     Costs associated with oversight of PRP response actions, including removal actions, are
    Costs        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.  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).

F.   Criminal      If at any time during removal actions criminal activity is  suspected, the Special-Agent-ln-
    hvestigation  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).

G.  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.
                                          -14-

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              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
              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    The NCP states that a Community Relations Plan (CRP) shall be prepared within 120
Relations      days for all response actions where on-site action is expected to extend beyond 120
Plan          days.  Before preparing a CRP, program and 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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                  &  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/STARS through the Comprehensive Environmental
    STARS       Response, Compensation and Liability Information System/Waste Local Area Network
                  (CERCLIS/WasteLAN). Exhibit 11-5 summarizes SCAP/STARS measures relevant to
                  removals. OSCs should coordinate with their information managers to ensure that they
                  are entering information into CERCLIS/WasteLAN correctly.  Exhibit 11-6 is an example
                  of a completed  CERCLIS/WasteLAN 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.)
                  B.      Event (RV = Removal)
                  C.      Lead (RP = Responsible Party, F = Fund)
                  D.      Plan start/complete date  (FYQ)
                  E      Actual start/complete date  (MM/DD/YY)
                  F.      Planning Status (STARS Target; P =  Primary, A  = Alternate, once  a removal
                         has  started,  it cannot be coded  as an 'A')
                  G.      SCAP Note  (Information about the removal)
                  H.      Takeover Flag (See below)
                  I       First Start Indicator
                  J.      First Complete Indicator
                  K.      Event Qualifier (Removal:  S  = Stabilization, C = Clean-up,' ' = Blank)
                                        -16-

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                Exhibit 11-5
SCAP/STARS Targets and Measures for Removals
                 TARGETS
Activities
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)
STARS
Target



X
SCAP
Target

X
X
X


Quarterly
Target

X


Annual
Target

X
X
X

X
MEASURES
Activities
Removal Completions
Removal Investigations Completed
at NPL Sites
Removal Completions
Remedial/Removal
Percent of NPL Sites Addressed to
date (S/C 2a)
NPL Sites where all remedial/
removal implementation has been
completed
STARS
Reporting

X
SCAP
Plan/Report

X
X
X
Quarterly

X
X
Annual

X
X
X
X

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-------
              L.      Event NPL Indicator (Y/N)
              M.      RCRA Off-Site ID
              N.      Financial Requirements:

                     1.      Financial Type (A = Actual Obligation)
                     2      Budget Source (V = Removal)
                     3.      Financial Amount
                     4.      Plan  Financial Date (FYQ)
                     5.      Actual  Financial Date (MM/DD/YY)
                     6.      Financial Vehicle (TES = Technical Enforcement Support)
                     7.      Funding Priority Status (APR = Approved, ALT = Alternate)
                     8.      Financial Note.

              A removal start date is the date the PRP/contractor/OSC begin actual on-site work
              (as entered in CERCLIS/WasteLAN).

              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/WasteLAN) 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.
                                    -17-

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              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.

              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 11

              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/WASTELAN.

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

                                        ERNS  Notification Process
BESPONSOLfPAflTY
DISCOVERS (REPORTS
RaEASE




FWMTEC/nZEH
DISCOVERS 1 REPORTS
RELEASE


STATE* LOCAL GO VT
DISCOVERS* REPORTS
RELEASE
t

    EPA/VSCO
  COLLECTS DATA FROM
  REPORTER (STANDARD
  NRC DATA ELEMENTS)
                              EPM1SCO
    flVW/SCG
  DOCUMENTS RELEASE
       DATA
                                                                                                            NRC
                                                  COLLECTS DATA
                                                 FROM REPORTER
                                                                                                            WJC
                                                DOCUMENTS RELEASE
                                                     DATA
    EPA/USCG
    RELAYS RELEASE
      DATATOOSC
RECEIVES RELEASE
     DATA
           £PA
      TRANSFERS DATA WITH IN
        2 WEEKS N REGION-
        SPECIFIC FORMAT
                                                            osc
                                                       REVIEWS R&EASE DATA
                                                        GATHERS MORE DATA
                                                            OSC
                                                        MAKES RESPONSE
                                                         DETERMWATICN
     USCG
  INPUTS RELEASE DATA
 WTO MSB wmwi WEEK
OF RECEIPT AND TRANSFERS
    DATA TO THE TSC
                                                                                                            NRC
RELAYS RELEASE
 DATA TO OSC
                                                                                                             NP.C
                                                COMPLETES ENTERING
                                                 RELEASE DATA INTO
                                                  NRC DATABASE
                                                            STOP
                                                                                                             NRC
                                                                                                        TRANSFERS RaEASE
                                                                                                          DATA ENTRIES
                                                                                                           TO TSC DAILY
                                                              TSC
  RECEIVES* LOGS
  RECEIPT OF DATA
                                                              TSC
                                                          WPUT5 RELEASE
                                                            DATA INTO
                                                           NRC DATABASE
                                                              TSC
                                                          INCORPORATES DATA
                                                           WTO RELATIONAL
                                                             DATABASE
                                          TSC
                                     GENERATES QUARTERLY
                                     AND SPECIAL REPORTS
                                          FOR EPA
 LTD
                                           TSC
                                      SUBMITS REPORTS
                                           TO EPA
                                                                                MAC
                    GENERATES REPORTS
                      1 FOIA REPLIES
                      AS NECESSARY
                        STOP
                                           EPA
                                      RECEIVES REPORTS
                                           STOP
                                                                                 USCO: USContGuinlMlloflktl
                                                                                 EPA:  U S Envlrommrtil Promotion Ajtnty R«glon«
                                                                                 NRC:  NMIonalRtlpoiMCtrtlr
                                                                                 TSC:  DOT'i TnmpcrUllon Sy««mi Cwur

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                  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.
                                          -19-

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             V.  REFERENCES

Policy        40 CFR, 55 Federal Register, "National Oil and Hazardous Substances Pollution
             Contingency Plan" (March 8,1990).

Guidance     OSWER Directive No. 9836.0-1 A, "Community Relations During Enforcement Activities"
             (November 6,1988).

             OSWER Directive No. 9836.2 "CERCLA Community Relations Mailing List" (February 6,
             1989).

             Courtney Price, "Functions and General Operating Procedures for the Criminal
             Enforcement Program" (January 7,1985).

             OSWER Directive No. 9833.3A-1, "Final Guidance on Administrative Records for
             Selection of CERCLA Response Actions" (December 3,1990).

             OSWER Directive No. 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
             Information Exchange" (October 19,1987).

             OSWER Directive No. 9834.1 OA, "Model Notice Letters" (February 7,1989).

             Lee Thomas, "Issuance of Administrative Orders for Immediate Removal Actions"
             (February 21,1984).

             OSWER Directive 9833.0-1 A, "Guidance on CERCLA Section I06(a)  Unilateral
             Administrative Orders for RD/RAs" (March 7,  1990). [Although not specific to
             removals, this guidance contains useful, generally applicable guidance.]

             OSWER Directive No. 9200.2-02, "Accelerated Response at NPL Sites Guidance"
             (December 15,1989).

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 9360.0-03B, Superfund Removal Procedures. Revision Number Three
             (February 1988).

             OSWER Directive 9360.3-01  "Action Memorandum Guidance" Superfund Removal
             Procedures. Volume 1 (September 26,1990).
                                   -20-

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             OSWER Directive 9200.3-01 A, SCAP Manual (updated annually).
Contacts     Removal Procedures
             Office of Emergency and Remedial Response, Emergency Response Division, FTS 382-
             7735.
             Administrative Orders
             Office of Waste Programs Enforcement, CERCLA Enforcement Division, Guidance and
             Evaluation Branch, FTS 382-5612.
             Cost Recovery and Indirect Costs
             OWPE, CERCLA Enforcement Division, Cost Recovery Branch, FTS 398-8635.
                                   -21-

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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
             Rote Definitions	1
             Activity Timelines	1
             Accountability Framework.	1
             Team Commitments to Objectives	2

II.     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/STARS	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

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V.     REFERENCES	22


       Guidance	~	22
       Manuals	.1	23
       Short Sheets	23
       Training	23
       Contacts	23

VI.    ACTIVITIES  CHECKLIST	24

       Preparation and Management	24
       Community Relations Plan	24
       Project Planning	24
       Oversee Rl Field Work and Data Analyses	28
       Perform  Risk Assessment	30
       Remedial Investigation Report	30
       Treatability Testing	31
       Development and Screening of Alternatives	31
       Detailed Analysis	32
       Feasibility  Study	32

       APPENDIX

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                          RI/FS  IMPLEMENTATION
I.      DESCRIPTION OF ACTIVITY	1

       Introduction	1
       RI/FS Overview.	1
             Phases of RI/FS Activity	2
                    Pre RI/FS Negotiation Scoping	2
                    Post-AOC Scoping	2
                    Site Characterization	3
                    Baseline Risk Assessment	3
                    Treatability Investigations	3
                    Development and Screening of Alternatives	3
                    Detailed Analysis of Alternatives	4
       Oversight Objectives	4
       Rotes and Responsibilities	5
             RPM	5
             Oversight Assistant	7
             Natural Resource Trustees	8
             ATSDR	8

II.     PROCEDURES  AND  INTERACTIONS	9

       A.     Project Scoping	9
             Pre-RFS Negotiation Scoping	9
             Scoping After Agreement	10
             Work Plan	11
                    Sampling and Analysis Plan (SAP)	11
                    Health and Safety Plan	11
       B.     Site Characterization	12
             Collection and Analysis of Field Data	12
       C.     Risk Assessment	13
       D.     Treatability Investigations	15
       E     Development and Screening of Alternatives	16
       F.     Detailed Analysis of Alternatives	17

III.     PLANNING AND REPORTING REQUIREMENTS	19

       A.     SCAP/STARS	19
       B.     Site Information  Form (SIF)	19
       C.     Budget	20

IV.    POTENTIAL  PROBLEMS/RESOLUTIONS	21

       A.     Dispute Resolution	21
       B.     Corrective Measures	21

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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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         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
                      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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Appendix

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7)	       Conclude negotiations
       a)	       Prepare AO for signature
       b)	       Initiate Fund-financed activity, if appropriate
                        -26-

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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 f
       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)	       Preliminary 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
                       -25-

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Special Notice Procedures and Model Lexers

OWPE, CERCLA Enforcement Division, Compliance Branch, at FTS 398-8484

OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch at FTS 475-
6770

Model SOW

OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch, at FTS 382-
5646
                    -24-

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Guidance
Manuals
Contacts
V. REFERENCES
OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving
Municipalities or Municipal Wastes" (December 6,1989).
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 9355.01 FS1, "Getting Ready -- Scoping the RI/FS" (November 1989).
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 9835.12, "Releasing Information to Potentially Responsible Parties at
CERCLA Sites" (March 1,1990).
OSWER Directive 9835.15, "Performance of Risk Assessments in RI/FSs Conducted by
PRPs" (August 28,1990).
OSWER Directive 9835.3-1 A, "Model Administrative Order  on Consent for RI/FS"
(January 30,1990).
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
OE, CERCLA Branch, at FTS 382-3077
OWPE, CERCLA Enforcement Division, Compliance Branch, at FTS 398-8484
Model AOC for RI/FS
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch,  at
FTS 382-5646
                                       -23-

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£    Additional     Under the AOC or CD, PRPs agree to complete the RI/FS, including the tasks required
     Worfr          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.
                                          -22-

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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.   Pasf 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 ^allocation 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.

0.   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.
                                          -21-

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               Exhibit V-5
SCAP/STARS Measures for RI/FS Negotiations
ACTIVITIES
RI/FS Negotiations Start
RI/FS Negotiations Complete
STARS
REPORTING


SCAP
PLAN/REPORT
X
X
QUARTERLY
X
X
ANNUAL 1
X
x 1

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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.

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.
                       -20-

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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.

ft  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/STARS through CERCLIS.  Exhibit V-5
    STARS      summarizes SCAP/STARS  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      Planning  Status (STARS Target; P  = Primary, A = Alternate)
                  F.      SCAP Note
                  G.      Enforcement Activity Outcome Code/Name (AC = Administrative Order on
                         Consent)
                  H.      Number of PRPs involved in negotiations
                  I       Remedy Operable Unit
                  J.      Remedy Type Code (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/Name (H = TES Work Assignment Amount
                                (Tasked))
                         2      Financial Amount (Amount required for negotiations)
                         3.     Financial Plan Date  (FYQ)
                         4.     Contract Vehicle (TES ## = Technical Enforcement Support)
                         5.      Budget Source (E = Enforcement)
                         6.      Case Budget Status (APR = Approved, ALT = Alternate)
                         7.      Received Date  (MM/DD/YY)
                         8.      Financial Note
                                         -19-

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                  I   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/STARS 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-lead 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


                                         -18-

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0.  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.

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±ead    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
                  (UAOs) may be issued to achieve PRP conduct of RI/FS activities.
                                         -17-

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u
Conditions
forPRP
Conduct of
RI/FS
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.

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
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.
                                         -16-

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                     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
              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
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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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                  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

                          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
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                         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
                  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).

                  OSWER Directive 9835.3-1 A, "Model Administrative Order on Consent for RI/FS"
                  (Januarys,  1990).

                  OSWER Directive 9835.15,  "Performance of Risk Assessments in RI/FSs Conducted by
                  PRPs" (August 28,1990).

L   Issue Special  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.
                                         -13-

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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.

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.
                -12-

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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 a RI/FS.

       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
                       -11-

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                                      Exhibit V-3(2)

                            Major Components of the SOW
TASK 5:  TREATAB1LITY 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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                                               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 (To be prepared by EPA)|

   ACTIVITIES:
   Contaminant Identification and Documentation
   Exposure Assessment and Documentation
   Toxicity Assessment and Documentation
   Risk Characterization
   Environmental Evaluation

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                 the revised RI/FS guidance (October 1988) and NCP. However, note that in June 1990,
                 EPA decided that PRPs may not conduct risk assessments.  See OSWER Directive
                 9835.15, "Performance of Risk Assessments in RI/FSs Conducted by PRPs" (August 28,
                 1990).

                 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.

                 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
    Mministra-   an  Administrative Order on Consent  (AOC).  AOCs are the preferred settlement
    five Order    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. In limited circumstances,  EPA
                 may compel a PRP to perform a RI/FS by a unilateral administrative  order.

                 The case team should prepare a draft administrative order before special notice is sent.
                 EPA has prepared a model administrative  order,  OSWER Directive 9835.3-1A (January
                 30,1990).  As applied, this version of the model order should  be modified to provide that
                 EPA performs the risk assessments. Moreover, most Regions have developed their own
                 model orders.

                 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
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    PRP Issues
J.   RI/FS
    Statement
    oflVoric
    (SOW)
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 preliminary cleanup goals). These
objectives should identify preliminarily the contaminants and media of concern, the
exposure pathways and receptors, 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.

References

OSWER Dir. 9355.3-01, "Guidance for Conducting Remedial Investigations and Feasibility
Studies under CERCLA" (October 1988).

OSWER Dir. 9355.3-01 FS1, "Getting Ready ~ Scoping the RI/FS" (November 1989).

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
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                  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.

    Follow up on  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.
H  Natural
    Resource
    Trustees
    Prelimi-
    nary Scoping
    of the RI/FS
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.

Preliminary scoping is the initial planning phase of site remediation, and should be initiated
by the  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
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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 9835.12, "Releasing Information to Potentially Responsible Parties at
                  CERCLA Sites" (March 1,1990).

                  OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving
                  Municipalities or Municipal Wastes" (December 6,1989).

                  OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
                  Decision Process" (February 12,1987).

F.  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.
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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, including individual
                  assignment of responsibilities; 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.

D.  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.

£  Issue         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.
                                           -6-

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B.  Intergovern-
    mental
    Review
C.
Formation of
the Case
Team
RPMs should initiate the intergovernmental review process during settlement
negotiations, so that the review process is underway in the event Fund monies are used
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).

Primary responsibility for developing  settlements rests with the case team, or
negotiation team.  The negotiation team usually consists of the RPM and the
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.
                                          -5-

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                  L   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/STARS 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/STARS 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 priority 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.
                                          -4-

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OE               OE is responsible for ensuring that negotiated settlements are consistent across the
Responsibilities    Regions with national policy for legal matters.  OE attorneys have expertise in the legal
                  implications of RI/FS settlements. OE attorneys usually are not involved in RI/FS
                  negotiations but may participate in negotiations where complex or nationally significant
                  issues are anticipated.  OE assists Regional counsel in prereferral matters, reviews
                  referrals sent to DOJ, and also reviews consent decrees resulting from settlements. OE
                  is represented on the SDC.

DOJ              DOJ's representative from the Environment and Natural Resources Division's
Responsibilities    Environmental 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.
                                          -3-

-------
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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 dfi 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
(NBAR) 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, OE, 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 OE. The
Director, OWPE also chairs the Settlement Decision Committee (SDC), which is
discussed primarily in Chapter VIII, RD/RA Negotiations.
                                          -2-

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                          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 informally 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 122(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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      D.     Removals Required During RI/FS	21
      E     Additional Work	22
V.    HthtHtNCES	23
      Guidance	23
      Manuals	23
      Contacts	23
VI.   ACTIVITIES  CHECKLIST	25
      APPENDIX

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                  RI/FS  NEGOTIATIONS/SETTLEMENT
I.      DESCRIPTION OF ACTMTY.	1

       Introduction	1
       Statutory  Authority	1
       Overview of the Negotiation Process	1
       Rotes aixi Responsibilities	2
             RPM Responsibilities	2
             ORC Responsibilities	2
             OWPE Responsibilities	2
             OE Responsibilities	3
             DOJ Responsibilities	3

II.     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      Preliminary Scoping of 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	16
       0.     Negotiations Outcome - PRP-Lead RI/FS	17
       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
             SOAP/STARS	19

IV.    POTENTIAL PROBLEMS/RESOLUTIONS	21

       A.     Stipulated Penalties	21
       B.     PastCosts	21
       C.     RI/FS Oversight Costs/Limits	21

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                                        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).

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Appendix

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               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.

               b)	      Ensure that the contractor adequately updates the
                             transactional database to reflect the information
                             provided by PRPs.
                       -36-

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               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 corporations 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.

               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.
                       -35-

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                     i)	       Establish the tracking system.

                     ii)	       Determine identities 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
               report should clearly state that the document is "ENFORCEMENT
               CONFIDENTIAL"
                        -34-

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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.
               a)	      Track response to letters.
                       -33-

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Training      OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch and the Cost
             Recovery Branch conduct periodic PRP Search Workshops and Cl Conferences. For
             additional information, contact FTS 382-5612 or 398-8642.

Contacts     PRP searches: The CERCLA Enforcement Division's Guidance and Evaluation Branch:
             (FTS) 382-4826 or the Cost Recovery Branch: (FTS) 398-8642.

             Information Requests: OE Attorney Advisor at (FTS) 245-3586, or an attorney in ORC.

             Administrative Subpoenas:  OE Attorney Advisor at (FTS) 475-8865, or an attorney in
             ORC.
                                   -32-

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             V.
REFERENCES
Policy        OSWER Directive 9835.0, "Interim CERCLA Settlement Policy" 50 FR 5034 (December
             5,1984).

             OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving
             Municipalities or Municipal Wastes" (December 6,1990).

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).

             OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for Sites in the
             Superfund Remedial Program" (June 29,1989).

             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 9835.12 "Releasing Information to PRPs at CERCLA Sites" (March 1,
             1990).

             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).

             OE, "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).

Mara/ate      OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1987).

             Region I Training Manual, Enforcement and Remedial Activities Under SARA (May
             1989).
                                   -31-

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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.
                       -30-

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D.
Examples of
Enforcing
Information
Requests
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.

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
                                         -29-

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a  Clarifying
    Roles and
    FtesponstiS-
    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.

C.   Resource     The quality of a search is a function of planning, proper and focused utilization of
     Gommff-      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
                  require supplemental work and funding, the RPM should ensure that these planned
                  expenses are reported on the SCAP.
                                         -28-

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       &      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/WasteLAN.

The Regions should  record pertinent information  at the completion of search activities "F"
and "E."
                       -27-

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                Exhibit IV-4
SCAP/STARS 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
STARS
REPORTING








SCAP
PLAN/REPORT
X
X

X

X
X
X
QTRLY
X
X

X

X
X
X
ANNUAL I
X
X

X

X
X
X

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A.  Planning
B.  Budget
C.  Reporting
    Require-
    ments
1  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.

Two phases of PRP searches are recognized. Phase I, which occurs prior to to the start
of the RI/FS, is budgeted  at $25,000. The general duration for this phase is 4 quarters.
Phase II begins with the start of the  RI/FS. RPMs may plan $6,000 per quarter
throughout the duration of the RI/FS.  RPMs should, however, consult with Regional
management to determine resource commitment limitations.

A matrix of SCAP/STARS measures relevant to PRP search  activity  is presented as
Exhibit IV-4.

In addition to SCAP/STARS reporting requirements, RPMs are also responsible for
completing an accurate CERCLIS/WasteLAN 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/complete dates (FYQ)
D.     Actual  start/complete 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 (P = 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)
       6.      Case Budget Status (APR = Approved, ALT = Alternate;  indicates
              whether funds are approved in the case budget)
       7.      WANO (Work Assignment Number)
                                        -26-

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One way to facilitate information exchange with PRPs is through a meeting. RPMs
should propose a meeting when they believe that is will 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.

Reference

OSWER Directive 9834.13, Interim Policy on CERCLA Settlements Involving
Municipalities or Municipal Wastes, (referred to as the "Municipal Settlement Policy")
(December 6,1989).
                       -25-

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                  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

                         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).

N.  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.

                  The policy governing information release to PRPs is quite flexible and provides for review
                  on a case-by-case basis. The Agency has a strong bias toward information release in
                  that it is believed, in most cases, to expedite settlement. In some cases, however,
                  Regions should reserve the right to exchange information with PRPs on a reciprocal or
                  conditional basis if it is believed that reciprocal exchange is the appropriate action. (See
                  OSWER Directive 9835.12, Releasing Information to Potentially Responsible Parties at
                  CERCLA  Sites (March 1, 1990).
                                        -24-

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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 PRPs' 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.

At municipal sites, in particular, the issuance of notice is governed by EPA's Municipal
Settlement Policy. The notification  provisions of this policy are generally summarized in
Part 1,104(e) Letters, above. In addition, it should be noted that notwithstanding the
above general policy, there may be truly exceptional situations where EPA may consider
notifying generators/transporters of MSW that contains a hazardous substance derived
only from households.  Such notification may be appropriate where the total contribution
of commercial, institutional, and industrial hazardous waste by private parties to the site
is insignificant when compared to the MSW.  In this situation, the Regions should seriously
consider notifying the generators/transporters of MSW containing a hazardous
substance from households as PRPs and include them in the settlement process where it
would promote either settlement or  response action at 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 hjwe not been issued, GNLs need not be
sent if they would not advance the  process.
                       -23-

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L   Interim        Information on new PRPs, as well as additional evidence on the liability of existing PRPs,
    Report        is likely to be uncovered after the completion of the interim-final report. For this reason,
    Folbvwp     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
                  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.
                                         -22-

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                  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. Subpoenas inherently support the
                  settlement process by increasing the amount of relevant information.

K.  Interimftoal   As indicated by the name, the interim-final report is not viewed as an end in itself.
    Report        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 (waste-in list). 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.

                  As noted previously in subpart C, ORC should review instances where a generator or
                  transporter is designated as a PRP based on a parent/subsidiary or corporate successor
                  theory.

                  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.
                                          -21-

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                         The Region has reason to believe that the hazardous substance is derived
                         form a commercial, institutional, or industrial process or activity.

                  EPA will not generally notify municipalities or private parties who are generators or
                  transporters of MSW if only household hazardous wastes (HHW) are present.  However,
                  such parties may be notified as PRPs if the MSW contains hazardous substances from
                  non-household sources. These sources include, but are not limited to, small quantity
                  generator (SQG) wastes from commercial  or industrial processes or activities, or used
                  oil or spent solvents from private or municipally-owned maintenance shops.

                  In general, parties who generated or transported  trash from a commercial,  institutional,
                  or industrial entity will not be notified as PRPs if such parties demonstrate to the Region
                  that:

                         None of the hazardous substances contained in the trash are derived from a
                         commercial, institutional, or industrial process or activity; AND,

                         The amount and toxicity of the hazardous substances contained in the trash
                         does not exceed that which one would expect to find in common household
                         trash.

                  Municipalities or private parties who are generators or transporters of "any other
                  hazardous substance" will generally be notified as PRPs if the Region obtains
                  information that the substance is hazardous or that it contains a hazardous
                  substance.

                  In view of the above, it is necessary to seek information whether MSW or sewage
                  sludge at the site contained a hazardous substance and the source (common
                  household trash or  commercial, institutional, or industrial process).

                  Reference

                  OSWER Directive 9834.13, Interim Policy on  CERCLA Settlements Involving
                  Municipalities or Municipal Wastes, (referred to as the "Municipal Settlement Policy")
                  (Decembers, 1989).

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-    Administrative subpoenas are authorized under section 122(e)(3)(B) of CERCLA.  A
   five Subpoena  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.


                                         -20-

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H   Management  Regional supervisors, with ORC, RPM and Cl input, 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. Special attention
     Transport-    should be given to corporate parent/subsidiary and successor issues. In addition, RPMs
     ers           should seek information to resolve the  issue of whether the substance was a listed or
                  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."

    Municipal      A key feature of EPA's "Municipal  Settlement Policy" (OSWER Directive 9834.13) is the
    Sites          notification procedures for  municipalities and private parties who generate or transport
                  municipal solid waste (MSW), sewage sludge, and trash from commercial, institutional, or
                  industrial entities.  It is necessary to understand the  notification policy in order  to assure
                  that the information needed in applying it is obtained.

                  Municipal and private party owner/operators will generally be notified where they were
                  past owners or  operators of facilities at the time of disposal of hazardous substances, or
                  they are present owners or operators of where hazardous substances have been
                  released or there is a threatened release.

                  In general, municipalities and private parties who generated or transported MSW or
                  sewage sludge will noj be notified as PRPs unless:

                  •       The Region obtains site-specific information that the MSW or sewage sludge
                          contains a hazardous substance; AND,
                                          -19-

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F.   Baseline
    Search
    Progress
    Review
G.  Prepare
    Baseline
    Report
Referrals" (OE, December 1987) and "Waste Procedures for Processing Oral and Other
Expedited Referrals" (OE, 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 receive 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
to protect the information contained in the report. Any copies of reports should be
numbered for tracking purposes.
                                         -18-

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Enforcement
Strategy for
Non-
Compliance
With
Information
Requests
would interfere with enforcement proceedings." The RPM also may decline to provide
pre-remedial deliberative process material under FOIA exemption 5. RPMs should provide
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" (OE, January 1988).  In time-critical
situations, the RPM should refer to "Procedures for Processing Oral and Other Expedited
                                      -17-

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                  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
                  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.
£    Compile,
     Organize,
     and Analyze
     104(e)
     Letter
     Responses
    Responding to
    FOIA
    Requests
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.

PRPs may request information  under the Freedom of Information Act (FOIA).  RPMs
should agree to provide only the information and documents that are within the scope of
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
                                         -16-

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                      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.
Municipal       As provided in the "Interim Policy on CERCLA Settlements Involving Municipalities or
Sites          Municipal Wastes" (OSWER Directive 9834.13), all municipal and private party
               owner/operators and generator/transporters should be included in the information
               gathering process.  In the initial set of questions to owner/operators, it is important to
               request information on the nature of wastes disposed of at the  site, including whether
               municipal solid waste and sewage sludge were deposited.  The identities of transporters
               and persons who arranged for disposal should be sought. Records should be routinely
               collected and reviewed.
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 PRPs1 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 PRPs1
               insurance coverage:

                      Ask general questions

                      Request a copy of the policy.

               RPMs should be as neutral as possible when requesting information about the PRPs1
               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.
                                      -15-

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        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
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
                -14-

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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, OE
               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, OE (or his/her designee).   On
               November 19,1987, AA, OE 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; d£ minimis status

                             for small businesses,  individuals with control

                      Operators
                                      -13-

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                                 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. ORC should review all PRPs
                                         where liability is based on a parent/subsidiary or successor
                                         theory

                                 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.

D.  §104(e)       The initial steps in the baseline search, discussed above, will produce basic information
    Letters       about the PRPs at a site.  The  information will  identify owners and operators and
    Issuedto      provide leads on generators.  At sites that operated prior to 1980, "waste-in" information
    Owners/     about generators  may be limited. As part of the baseline search the owner or operator
    Operators    should be required to provide information that is as complete as possible under the
    and Follow-   circumstances. Later, as part of the  interim final report regarding generators and
    ip           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
                  Agency has articulated a preference  for using information request letters to gather the
                  initial facts about PRPs.
                                          -12-

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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

                                 develop a list of other possible PRPs, identifying generators, and
                                 transporters
                                          -11-

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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.

A   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 and specification of the professional skill
                         mix to be  applied by the contractor.
                                         -10-

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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.
                         -9-

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              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  most
              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. Contractors must not be assigned subtasks that are inherently governmental
              functions, such as deciding who receives a § 104(e) letter or deciding whether a response
              is adequate.
              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
                            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.
                                      -8-

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Regional
Attorneys
Civil
Investigators
               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 (including
        the universe of PRPs and waste-in information)

        Ensure that adequate evidence of a PRPs' liability and ability to pay is gathered

        Ensure that the universe of PRPs, viewed broadly, is included in community
        relations mailing lists.

RPMs must coordinate with ORC to determine whether the collected information
contains sufficient information to establish the PRPs1 liability.

The ORC attorneys are responsible for directing case development for  each site.
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 PRPs' 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
corporate successors, and possible legal defenses, such as the innocent landowner
defense.

There are at least two CIs in each Region. CIs have responsibilities in developing a
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.
                                       -7-

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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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                          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.

 F.      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(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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    Managing the
    Search
    Process
PRP Search
Reports
Key Players in
the PRP Search
Process
    RPMs
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 PRPs1 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).

OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program" (June 29,1989).

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.

The RPM or Cl,  depending on the Region, is responsible for managing the PRP search
process.  He/She oversees the search process and, for functions performed by
contractors,  provides direction 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:
                                          -6-

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               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
                      -   Document Inventory Databases.

                      Additional Miscellaneous Tasks

                      -   Compliance History
                      -   Financial Assessment
                      -   Generator Ranking
                      -   Property Appraisal.
                                      -5-

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General Approach
to PRP Searches
    Baseline
    Search
    Tasks
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.

Since the RPM is responsible for managing the  response action at the site, it is vital for
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.

For reasons of budget, timing, and standardizing site management, EPA has selected a
core group of tasks to be conducted at most sites.  There are 10 core search tasks that
should be executed during most "baseline" searches.  The tasks are intended to provide
the Agency with basic information about the site and the PRPs' 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

•        Financial status

        CERCLA  104(e)/RCRA 3007 letters

        Report preparation.
                                          -4-

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                             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.

Strict          If a person falls within one of the four classes of PRPs, section 107(a) of CERCLA
Liability        imposes strict liability (i.e., legal responsibility is assessed without regard to fault and
               diligence generally is no defense) for all response costs incurred at the site.

Joint and       When more than one PRP is involved at a site and the harm  is indivisible, such as in the
Several        case of intermingled drums, commingled wastes and contaminated soil or ground water,
   lility        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.  However, EPA's practice is to  attempt to identify and notify
               the universe of PRPs and to issue orders and litigate against the largest manageable
               number of parties.

Limited        Under CERCLA, a PRP's liability is subject only to the very  limited defenses listed  in
Defenses       section  107(b).  Thus, a PRP, who would otherwise be liable under section 107(a) of
Under          CERCLA, can escape liability only by proving that the release or threatened release
CERCLA       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
               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,
                                      -3-

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             Exhibit IV-1


Overview Of The PRP Search Process
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-------
                  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 PRPs' 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.,
                          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;
                                          -2-

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             PRP SEARCH, NOTIFICATION, AND INFORMATION EXCHANGE

                  I   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 PRPs1 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,
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
                                          -1-

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III.    PLANNING AND REPORTING  REQUIREMENTS	26

      A.     Planning	26
      B.     Budget	2B
      C.     Reporting Requirements	SB

IV.    POTENTIAL  PROBLEMS/RESOLUTIONS	23
                                                                  4
      A.     Tilling	.28
      B.     Clarifying Roles and Responsibilities	28
      C.     Resource Commitments	28
      D.     Examples of Enforcing Information Requests	29
            The Cannons Sites	29
            Charles George Site	30

V.    REFERENCES	31

      Policy	31
      Guidance	31
      Memoranda	31
      Manuals	31
      Training	32
      Contacts	32

VI.    ACTIVITIES  CHECKLIST	33

      APPENDIX

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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	6
              Regional Attorneys	7
              Civil Investigators	7
              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
              Municipal Sites	15
              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 and Transporters	19
              Municipal Sites	19
       J.      Specialized Investigative Tasks	20
             Administrative Subpoena	20
       K.      Interim-Final Report	21
       L      Interim Report Follow-up	22
       M.     General Notice  Letters (GNLs)	22
       N.      Ongoing Information Exchange	24

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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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Site Management Plan Guidance
EXAMPLE SMP:  Case Overview Component
     the PRP Volumetric Ranking List and Mailings  List.   In completing
     that task, the RFC 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 RFC 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  RFC will oversee the performance  of certain tasks
     by TES contractors, such  as  a title search and mass mailings to
     the PRPs.   The  RFC 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 RFC  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.

 2.  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
 *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 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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                          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

SITE TEAM MEMBERS
                                                     number s^
     Regional Site Manager:

     Regional Attorney:

     Regional PRP Coord:
                                 Telephone  number

                                 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  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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Appendix

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             V. REFERENCES

Guidance     OSWER Directive No. 9851.3 "Integrated Timeline for Superfund Site Management"
             (June 11,1990)

             OE/OWPE (Strock and Clay) "Pre-Referral Negotiation Procedures for Superfund
             Enforcement Cases" (October 12,1990)

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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                  IV.  POTENTIAL PROBLEMS/RESOLUTIONS
A.  Over/y-       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.

E  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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                  III. PLANNING AND REPORTING REQUIREMENTS

A.  Planning      Comprehensive site planning and the SCAP/STARS 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
    STARS      Superfund planning process.  For detailed information on the SCAP planning process,
                  use the annual SCAP manual.

B.  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
    Based on     has the responsibility of providing accurate site information for CERCLIS/
    Schedule and  WasteLAN. This data should be updated monthly.  Exhibit 111-3 is an example of a
    Classifica-    completed CERCLIS/WasteLAN Site Information Form (SIF) for site/incident
    fon           planning. RPMs should complete the SIF 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
                  L       Zip Code
                  J.      LL Source
                  K.     LL Accuracy
                  L      Congressional District
                  M.     County Code
                  N.     SMSA (Standard Metropolitan Statistical Area)
                  0.     Fed-Agency-PRP-Flag
                  P.     State-PRP-Flag
                  Q.     PRP Agency Code
                  R.     Federal Facility Flag
                  S.     RCRA FAcility  Flag
                  T.     Municipal-PRP-Flag
                  U.     Site/Incident Abstract
                  V.     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.)
                  W     Entry  NPL/Status  Indicator
                  X     Proposed NPL Update Number
                  Y.     Final NPL Update Number
                  Z     Site Category
                  AA.    Ownership Indicator
                  AB.    Incident Type (if applicable).
                                         -9-

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                     bi       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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               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.

ft       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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       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,
               deminimis 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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              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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Site Team and Major 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, OE, 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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A.  Develop
    Initial SMP
B.  Develop
    Detailed
    Plans
C.
              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 timeline in Exhibit 111-1 presents the Agency's view of key steps and
              optimum duration of phases in moving sites from identification to remediation. 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 each site-specific
              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-Referral Litigation
                     Report

                     Litigation Management Plan.

Site          The following pages contain a brief discussion of the contents of the general
Management  information and objectives overview component of the SMP.  This discussion is
Plan Outlines  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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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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                            COMPREHENSIVE SITE PLANNING
                   I.  DESCRIPTION OF ACTIVITY

Introduction        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.

Objectives of Site   EPA or the State should develop a Site Management Plan (SMP). The following
Management       material sets out conceptually what each site management plan should strive to
Planning           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.
Roadmap for Site
Activities
Role Definitions
Activity
Timelines
Accountability
Framework
 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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Introduction
RI/FS Overview
                                  RI/FS IMPLEMENTATION
I   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 106.1  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.

RPM management of the RI/FS begins in preliminary scoping before a Special Notice
Letter (SNL) has been sent out to the PRP.  Actual PRP  implementation of the RI/FS
begins after the administrative order is signed during scoping. 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 to public health and the
       environment by the site

       Evaluates a range of  remedial alternatives (treatment controls, institutional
       controls, or a combination of  these plus a no action alternative) based on
       specified criteria.

The process 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
1 The terms and conditions governing RI/FS activities may also by specified in a Consent Decree (CD). The AOC, however, is
the preferred settlement document because it is not subject to court approval.
                                          -1-

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                  studies. The distinction between the Rl and FS phases is made to emphasize the focus of
                  the studies.

                  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
                  intended to characterize the site effectively by describing contaminant concentration,
                  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 seven major phases of RI/FS activity.  Each phase is briefly summarized
Activity          below and graphically depicted in Exhibit VI-1.

                  Pre-RI/FS Negotiation Scoping
                  Pre-RI/FS scoping begins several months before an SNL for an RI/FS has been sent out
                  to the PRP and is completed when the RPM:

                  •   Obtains a general understanding of the site using the existing information and
                      determines, generally, the data needed to make a remedy selection decision;

                  •   Utilizes a Technical Support Team (TST) to assist on the RI/FS and in executing
                      the tasks of future PRP oversight;

                  •   Visits the site to  identify the conditions of the site, effects of contaminants, and the
                      potential areas of concern; and

                  •   Generates a preliminary site-specific SOW and draft AOC.

                  Pre-RI/FS negotiation scoping is the initial task performed internally by the RPM with the
                  help of the support contractor. During this preliminary planning phase prior to
                  negotiations between EPA and the PRPs, EPA develops a site-specific general plan to
                  identify 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 preliminary scope should utilize a  TST to 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.

                  Post-AOC Scooina
                  Post-AOC scoping is the activity planning and project plan development phase of the
                  RI/FS. It occurs after negotiations are completed and an AOC, including a SOW, has
                  been signed by EPA and the PRP. During this phase, the RPM, with the help of an
                  oversight assistant and members of the technical support team, refines the site
                  conceptual model  and the preliminary site objectives and data needs that were developed
                  in the pre-RI/FS negotiation scoping. This information is used to assist the PRP to
                  develop project plans which are then subject to EPA's review, comment, and approval.
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 Many of the activities begun during the scoping process (i.e., preliminary risk
 assessment, need for treatability studies, identification of ARARs) are continued and
 refined as site work progresses and new information is obtained.

 Site Characterization
Site characterization involves the collection and analysis of field data to determine the
physical site characteristics, sources of contamination, and nature and extent of
contamination. Data are gathered  for other analyses (e.g., EPA's risk assessment,
treatability study evaluation, and the natural resource trustee survey), which are also
conducted during site characterization, so that the Feasibility Study can be completed
and conducted without the need for additional information gathering.

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, remediation goals are determined for the
site contaminants with an evaluation of how each viable alternative carried through to
the detailed evaluation addressed the risk(s).  Beginning with all AOCs (or CDs) signed
after June 21,1990,  EPA will prepare the baseline risk assessment at all enforcement-
lead sites.  See OSWER Directive 9835.15, "Performance of Risk Assessments in
Remedial Investigation/Feasibility Studies Conducted by Potentially Responsible Parties"
(August 28,1990).

Treatabilitv Investigations
Treatability studies are conducted during the Rl and should provide the data needed to
evaluate one or more treatment technologies for potential analysis during the
development, screening, and 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 during the Rl 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 aim  of this task is to devise a complete and concise
list of remedial alternatives and screen this list according to cost, effectiveness, and
implementability.  Under some circumstances, such as when the site is a municipal landfill,
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                  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 EPA's set of nine
                  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.  Also see the NCP §300.430
                  (March 8,1990) for a more detailed discussion of the nine criteria.

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) (or in
                         some instances, the Consent Decree), 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

                         Verifying that all work is performed according to generally accepted scientific
                         and engineering methods

                         Verifying that sufficient data of acceptable  quality is being collected and
                         analyzed to enable EPA to characterize the site, identify site risks, develop a
                         range of 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
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                  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 early in 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  the time constraints specified in the AOC.  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 and meetings, number of split samples) should be determined site-specifically based
                  on technical considerations (i.e. risk, 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.

Roles and         Following is a summary of the primary roles and responsibilities of the RPM, oversight
ResponsMes     assistant, Natural Resource trustees and ATSDR during the RI/FS.  Appendix A of this
                  chapter contains exhibits which detail roles and responsibilities through the seven 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

                         Identify the site-specific activities and deliverables required from  the PRP

                         Prepare 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
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•      Verify that the planned activities will meet statutory requirements, satisfy the
       RI/FS objectives, and satisfy the provisions of relevant guidance.

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 information is updated in the Agency's tracking system
       (CERCLIS/WasteLAN)

•      Assure that any aspects of the  RI/FS performed by EPA are  done in a timely
       manner (e.g., EPA's 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

       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 and  the Administrative Record Coordinator (ARC)

       Finalize any supplements to  the RI/FS and write the proposed  plan and ROD.


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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 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:

                          Compiling and presenting existing information into a site conceptual model

                          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 site file, and  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

                          Providing site-specific information to the Regional IMC for input into
                          CERCLIS/WasteLAN.

                  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 also may 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
                                          -7-

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Natural Resource
Trustees
ATSDR
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.
PNRS  are conducted by the natural resource trustees. Trustees include the Federal
and State governments and the Indian Tribes. The National Marine Fisheries
Service of the National Oceanic  and Atmospheric Administration (NOAA) has
jurisdiction over marine and coastal fisheries, and a shared jurisdiction over
anadramous fish  (e.g.,  salmon, striped bass) and catadramous species (e.g., eels).
The area of their jurisdiction, generally speaking, is the coastal states  and oceanic
possessions,  including the bays,  estuaries, rivers, and wetlands that are the habitats
of the species of  concern.  The Fish and Wildlife Service of the Department of  the
Interior (DOI)  has jurisdiction over all migratory species and endangered and
threatened species.  For other generally non-migratory species the respective  States,
territorial  governments, and Indian Tribes should be contacted. 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.

    Pre-RI/FS    Prior to the negotiations, the RPM begins defining the technical and administrative scope
    Negotiation   of the pending RI/FS and the requisite oversight.
    Scoping

                  It is  helpful for the RPM with the assistance of the support contractor 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 also keep in mind that Technical Assistance Committees
                  (TACs), which are internal EPA resources, or Technical  Support Teams  (TSTs) 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, and
              (4) procure an oversight assistant before the order is finalized to prevent unnecessary
              delays.

              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.) and include the
                     concerns of each in site-specific project plans

                     Review and approve, as appropriate, PRP project plans

                     Develop and begin implementing the community relations plan in conjunction
                     with the Community Relations Coordinator.  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 and as additional information is
             obtained, 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 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 Administrative
             Record.

             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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                   Exhibits VI-2 and VI-3 portray RI/FS oversight activities during the scoping phase and
                   the other RI/FS phases.

a   Site           The objectives of this phase are to define the site characteristics, the source(s) of
     Character!-    contamination, the nature and extent of contamination, and to determine possible fate
     zation         and transport of contaminants as preparation for determining site risks.  The major
                   components are collection of field data, analyses of data and report preparation.

     Collection      As an approach, RPMs may suggest that the PRPs direct their initial field data
     and Analysis   collection effort to developing a general understanding of the site. Once this
     of Field Data   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 and 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.

                   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
                                          -12-

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                  activities. Samples of field activity reports are provided in the appendix of OSWER
                  Directive 9835.3, "Draft Guidance on Oversight of Potentially Responsible Party
                  Remedial Investigations and  Feasibility Studies" (September 28,1990).  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 environmental evaluation
                  addresses any critical habitats affected  by site contamination and any endangered
                  species affected by the contamination.

                  The baseline risk assessment process is cumulative in nature: the components of the
                  assessment build on one another. For assistance in planning the conduct of the baseline
                  risk assessment, the  RPM should refer to EPA's Superfund Human  Health Evaluation
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Manual. Superfund Exposure Assessment Manual, and Superfund Environmental
Evaluation Manual, and access the Integrated Risk Information System (IRIS) and the
Public Health Risk Evaluation Data Base.

In the summer of 1990, EPA issued a policy stating that it will not enter into any new
orders or decrees for PRP RI/FSs in which risk assessments are to be conducted by
PRPs.  That is, new orders or decrees for PRP RI/FSs must state that EPA (or a
State whose oversight is Federally funded) does the risk assessment, and must not
include risk assessment products or deliverables to be developed by the PRP.  Such risk
assessment products, including but not limited to identification of contaminants of
concern, current and future exposure scenarios, and toxicity information will be prepared
by EPA. The FS and remedy selection shall be based on EPA's risk assessment. New
orders or decrees should explicitly state that PRPs will  use EPA's risk assessment as
the basis of the FS.

This  new policy does not change any responsibilities PRPs may have regarding the
collection of site data relevant to the development of the baseline risk assessment.  It is
not expected, nor is it generally necessary, that EPA should independently collect data
from  the field in order to be able to develop the risk assessment.  Rather, these data
should be provided by the PRP's normal activities in conducting the Rl under EPA
oversight (of course, as part of oversight Regions should continue to conduct audits,
engage in split sampling, etc. to assure the accuracy of PRP-generated data).

New orders or decrees should stipulate that the  PRPs will pay the costs for EPA (or a
State) to develop the risk assessment.

For existing orders or decrees where the PRP is to prepare the risk assessment,
procedures are to be followed to allow PRPs to complete high quality risk assessments,
or alternatively, to allow EPA to complete risk assessments that  PRPs do inadequately.

Within the terms of existing orders or decrees, EPA will give a PRP an opportunity to
complete the risk assessment correctly.  PRPs are expected to consult with EPA early
and throughout the risk assessment process so they can ensure that their work is in
accordance with the NCP and Agency guidance and is of high quality. If the risk
assessment delivered by the PRP is unacceptable, even after EPA has provided
comments or after the  parties have exhausted other procedural requirements (such as
dispute resolution) as may be provided for in the order or decree, EPA will undertake its
own  risk assessment.

Depending on the terms of the order or decree, the Region may provide comments on
drafts of an intermediate deliverable in those cases where orders require  major
intermediate deliverables for the  risk assessment; if, after providing comments as
required and pursuing other recourses as may be required under the order or decree, the
intermediate deliverable from the PRP remains unacceptable, the Region may decide at
that point to  prepare its own risk assessment. These procedures will allow EPA to avoid
numerous reviews throughout the development of the risk assessment, which can be
costly in time and resources.
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                   If the Region determines that the final PRP risk assessment is fully acceptable, the
                   Region should document this finding in writing and place the written certification in the
                   Administrative Record file.  Such an explicit certification by EPA of a PRP risk
                   assessment should help assure the public that EPA is providing necessary oversight.

                   If, on the other hand, a risk assessment is undertaken by EPA because the PRP's is
                   unacceptable, EPA may use any part of the PRP's work deemed to be of high quality.

D.   Treatability   Treatability studies are designed to provide information that EPA uses in the detailed
     Investiga-      analysis of alternatives to the maximum  extent practicable. The decision of whether to
     fibns          conduct these activities is made  in scoping and is based.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 during scoping 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


                                          -15-

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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 using all
    Alternatives          Rl generated data.  This is 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 a number of alternatives depending on site type and
                          characteristics.

                          Screen the remedial action alternatives, if necessary, 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 PRPs' 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.
                                          -16-

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F.   Detailed
    Analysis of
    Alternatives
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.

Nine evaluation criteria have been developed to address statutory requirements, as well
as the technical and policy considerations that have proven to be important for selecting
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.  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.
                                         -17-

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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.
                        -18-

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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.
    STARS      For example, activities such as RI/FS starts, field work starts, and draft RI/FS
                  completions must be entered into the CERCLIS/WasteLAN 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/STARS targets for RI/FS.

B.  Site          RPMs are responsible for completing an accurate CERCLIS/WasteLAN site information
    Information    form (SIF) for RI/FS activity. Exhibit VI-5 provides an example of a completed SIF.
    Form (SIF)    RPMs should 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/complete date (FYQ)
                  E      Actual start/complete  dates (MM/DD/YY)
                  F.      Planning Status  (STARS Target,  P = Primary, A = Alternate)
                  G.      SCAP  Note
                  H.      Subevent Type (CF = FS to  Public)
                  I       Plan start/complete date (FYQ)
                  J.      Actual start/complete  date  (MM/DD/YY)
                  K.      Takeover Flag (see below)
                  L.      First Start  Indicator
                  M.      First Complete Indicator
                  N.      Event Qualifier (U = Unknown)
                  0.      Event NPL Indicator (Y/N)
                  P.      Financial Information

                         1.     Financial Type (P = Planned)
                         2     Budget Source (E = Enforcement)
                         3.     Financial Amount
                         4.     Financial Plan Date (FYQ)
                         5.     Financial Actual Date (MM/DD/YY)
                         6.     Financial Vehicle (TES## = Technical Enforcement Support)
                         7.     Fund  Priority Status (APR = Approved, ALT = Alternate)
                         8.     Financial Note

                 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.
                                       -19-

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                  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
                  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 $25,000 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.
                                        -20-

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                                           Exhibit VI-4
                                 SCAP/STARS 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)
STARS
TARGET




X


SCAP
TARGET

X
X
X

X
X
QUARTERLY
TARGET

X
X
X
X
X
X
ANNUAL fe|
TARGET I
1
x H
X 1
x B
x H
x H
1
The STARS target combines first and subsequent as a single target.

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A.   Dispute
     Resolution
a   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 and subsequently recover costs

        Take other action (e.g., court order to comply)

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.
                                         -21-

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             V. REFERENCES
Regulation    C.F.R. 40 "National Oil and Hazardous Substances Pollution Contingency Plan"  (March
             8,1990).
             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,"Draft Guidance on Oversight of Potentially Responsible Party
             Remedial Investigations and Feasibility Studies" (September 28,1990).
             OSWER Directive 9835.15, "Performance of Risk Assessments in RI/FSs Conducted by
             Potentially Responsible Parties" (August 28,1990).
             OSWER Directive 9835.3-01 A, "Interim Guidance on Potentially Responsible Party
             Participation in Remedial Investigations and Feasibility Studies" (October 1988).
             OSWER Directive 9833.3-A1, "Final Guidance on Administrative Records for Selection of
             CERCLA Response Actions" (December 3,1990).
             OSWER Directive 9285.4-00, "Guidance for Conducting ATSDR Health Assessment
             Activities with  the Superfund Remedial Process" (April  1987).
             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.
                                   -22-

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Manuals      OSWER Directive 9285.7-01A, Human Health Evaluation Manual (December 1989).
             OSWER Directive 9285.7-01, Interim Final Risk Assessment Guidance for Superfund -
             Environmental Evaluation Manual. (March 1989).
             OSWER Directive 9285.5-1 A, Superfund Exposure Assessment Manual (April 1989).
             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).
Short
Sheets
Training
Contacts
US EPA, NEIC Policies and Procedures Manual (revised November 1984).
OSWER Directive 9355.3-01 FS1, "Getting Ready:  Scoping the RI/FS" (November 1989).
[Fund-lead RI/FS]
OSWER Directive 9355.3-01 FS2, "The Remedial Investigation - Site Characterization
and Treatability Studies" (November 1989). [Fund-lead RI/FS]
OSWER Directive 9355.3-01 FS3, "Development and Screening of Remedial Action
Alternatives" (November 1989).
OERR conducts periodic training on the RI/FS process.
Regional Toxics Integration Coordinator
Regional Biological Technical Assistance Groups (BTAGs)
OWPE, CERCLA  Enforcement Division, Compliance Branch, at FTS 398-8484.
OWPE, CERCLA  Enforcement Division, Guidance and Evaluation Branch, at FTS 475-
6770.
OERR, Hazardous Site Control Division, at FTS 398-8360.
                                  -23-

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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 PRPs1 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

                 b)	        PRPs understand need for treatability studies


                        -24-

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                 c)	        PRPs understand the RI/FS guidance 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. BSD 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
                       -25-

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e)	       Risk assessment (only for agreements predating
                June 1990)

                -   Federal and State ARARs (approach, primarily
                    to contaminant specific and location specific)
                -   Human health
                -   Approach to contaminant identification;
                    exposure assessment, use of SEAM, use of
                    current and maximum reasonable use scenario
                    assuming growth; exposure points with path-
                    ways, 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

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
       -26-

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                j)	       FS Report
                                    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
                                inNCP

                                -    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
                       -27-

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                                 -   Data assessment procedures
                                 -   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 PRPs1 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.
                       -28-

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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.

27)	       Review and comment on site characterization summary. Assure
                 proper and accurate data presentation.
                       -29-

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28)	      Update Administrative Record.
29)	      Assure adequate oversight activity documentation (cost
                documentation).
30)	       Identify interim actions as necessary.
Perform 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)	      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.
35)	      Environmental Evaluation
                a)	       Review environmental evaluation plan; discuss with
                                trustees
                b)	       Review environmental evaluation report, discuss
                                with trustees
36)	      Obtain/review ATSDR health assessment; State views.
37)	      Assure appropriate  EPA  management review.
38)	      Comment on/finalize risk  assessment.
                a)	       Gather additional data as needed.
Remedial Investigation Report
39)	      Copy to State, trustees,  ATSDR as appropriate.
                       -30-

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40)	      Develop preliminary comments.
41)	      Assure appropriate EPA managerial review.
42)	      Final comments.
43)	      Review and modify/approve interim Rl report (possible additional work
                 may be identified in FS).
44)	      Update Administrative Record.
45)	      Fact sheets, public meetings as necessary.
Treatability Testing
46)	      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  PRPs' work plan/SAP.
                 e)	       Review  PRPs'  report.
                 f)	       Require, if necessary, additional testing.
Development and Screening of Alternatives
47)	      Meet with PRPs to discuss remedial action objectives; alternative
                 development and screening; detailed analysis; SARA - compliant
                 remedies.
48)	      Review,  modify, and possibly approve remedial action objectives
                 submitted by PRPs.
49)	      Review work/report by PRPs, identifying potential technologies for
                 areas of media, evaluation of process types.
50)	       Review range of alternatives developed by PRPs; focus on effective
                 remedies, preference for treatment.
51)	      Advise State of alternatives.
                       -31-

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52)	      Review the document submitted by PRPs on alternatives passing the
                screen, including alternatives array summary with associated ARARs
                and description of underlying work.
53)	      Confer with State.
54)	      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.
55)	      Finalize approved identification of acceptable group of remedies that
                should be considered in the detailed analysis.
56)	      Assure updated Administrative Record.
Detailed Analysis
57)	      Review the comparative analysis document prepared by PRPs (unless
                EPA reserved this).
58)	      Assure that, to the extent possible,  State, trustees views are known.
59)	      Meet with PRPs.
60)	      Provide comments, direction to PRPs for FS.
61)	      Assure updated Administrative Record.
Feasibility Study
62)	      Circulate PRP draft FS to State, trustees, intra-EPA groups.
63)	      Develop preliminary comments.
64)	      Assure internal EPA and management review; also discuss proposed
                plan.
65)	      Finalize comments.
66)	      Assure development of an FS that supports proposed plan.
67)	      Update Administrative Record.
68)	      Oversight/response cost billing.
69)	      Preparation for  RD/RA negotiations.
                       -32-

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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, Consultations, 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
             Adminislrative 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	11
             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
       I      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

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            Information Databases	15
            Implications of Submissions	15
            SCAP/STARS	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 VIM 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 NCP specifies the nine
evaluation criteria used to compare remedial alternatives.

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
       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
                                             -2-

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                                     Exhibit VIM

                                Selection of Remedy
                        Overview of Decision-Making Process
     STA
     Selection of
 Preferred Alternative
        ...^^-"^"••^
l' "STAGE2:   %  ,
{|  Final Selection of  x -
X| Remedial Alternative "
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              , >';  A
                                                  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, HQ, 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

-------
       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; long-term
       maintenance costs;  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
       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.
                            -3-

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       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. Present worth 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.

       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
                            -4-

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                         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

                  NCP pages 8719-8723 (March 8,1990).

ROD Delegation,   The authority to sign the  Record of Decision usually is delegated from EPA
Consultations,     Headquarters to the Regions following a Regional request for delegation in the applicable
and Briefings      forum. Consultation with Headquarters continues to be required in certain circumstances.

                  Formal consultations with Headquarters generally are required where the proposed
                  remedial action exceeds $30 million; utilizes fund-balancing waivers; or involves real
                  property acquisition, national precedent-setting issues, ROD amendments as a result of
                  settlements, all Explanation of Significant Differences (ESDs), and containment-only
                  remedies. Consultations are to occur prior to issuance of the Proposed Plan or Amended
                  Proposed Plan.  The consultation process outlined above also is applicable to Federal
                  Facilities  RODs, ROD amendments, and ESDs.

                  The lead  agency will conduct a pre-ROD briefing for Headquarters staff if the site
                  involves nationally significant or precedent-setting issues. Additionally, a pre-ROD
                  briefing for Headquarters must be performed for all RODs that require Headquarters
                  concurrence.
                                             -5-

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                  II.  PROCEDURES AND INTERACTIONS
A.
Review of
RI/FS
a
Preparation
of Proposed
Plan
     Format of
     Proposed
     Plan
     Contents of
     Proposed
     Plan
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.  PRPs must not
be allowed to influence the remedy selection process such that less protective or
permanent remedies are selected. It is the  lead Agency, and not a PRP, that must select
the preferred alternative and the ultimate remedy.  See the discussion in Section IV,
Problems and Resolutions, of this chapter.

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 Background

               Gives physical description
                                              -6-

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               Explains site history
               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 any 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).
                            -7-

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C.  State/
    Federal and
    Public Input
    on Preferred
    Alternative
D.  Hnalizatton
    of Proposed
    Plan
E   Public 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 Headquarters Program Offices,
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 concurs 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.
                                              -8-

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              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).

              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
tive 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-1, "Final Guidance  on Administrative Records for
              Selection  of CERCLA Response Actions" (December 3,1990).

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
                                         -9-

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F.   Spec/a/
    Notice To
    PRPs
     Required
     Notifications
G.   Final
     Selection of
     Preferred
     Alternative
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.

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).
                                              -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 consisting of a quality assurance project plan (QAPP)
          and a field sampling plan [Remedial]
          Validated sampling and analysis data
          Chain of custody forms
          Inspection reports
          Data summary sheets
      •    Technical studies
      •    Endangerment assessment/risk assessment
          Summary of remedial action alternatives (used in conjunction with early special notice
          letters) [Remedial]
      •    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

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                              Exhibit VII-2(2)
                 Contents of the Administrative Record
Public Participation
     Community relations plan
     Newspaper articles
     Proposed plan [Remedial]
•    Public notices
     Community Relations Mailing List and documents sent to persons on this list
     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]
     EE/CA Approval Memorandum [Removal]
     Other documents that embody the decision for selection  of a removal action
     [Removal]

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H
Prepare
Draft ROD
    Components
    of Record of
    Decision
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.

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
                                            -11-

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                         Summary of Site Risks

                  •       Description of Alternatives

                         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.


                                            -12-

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    State/        Once the draft ROD is complete, the lead and support agencies will brief their own
    Federal       management on the ROD. The lead agency will submit the ROD to the support agency,
    Consultation   which should be allowed at least ten working days to examine the ROD, unless the CA or
    on Selected   SMOA specifies a different time frame. Both agencies will submit it for  review to
    Remedy      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; uses a Fund-balancing waiver; or involves real property
                  acquisitions, "containment-only" remedies, ESDs, or ROD amendments.

                  Based on comments received, the lead agency may modify the selected remedy and
                  revise the ROD.

    Concurrence   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.
a   Briefing and
    Signature
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.
                                             -13-

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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).
                                             -14-

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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/WasteLAN.

    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.

    SCAP/      The  Selection of Remedy process is tracked through CERCLIS/WasteLAN.  Exhibit VII-3
    STARS      summarizes SCAP/STARS targets relevant to this process.  Exhibit VII-4  indicates the
                 appropriate format for completing a CERCLIS/WasteLAN 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)
                 B.     Event Code/Name (RO = ROD)
                 C.     Lead (F = EPA, Fund-financed; FE = PRP/Federal  Enforcement; SE = State
                        Enforcement)
                 D.     Plan complete date (FY/Q)
                 E     Actual  complete date (MM/DD/YY, date signed by RA)
                 F.     Planning Status (STARS Target; P = Primary, All  RODs have a code of P)
                 G.     SCAP  Note (Indicates what the ROD is addressing)
                 H.     First complete indicator
                 I      Financial Requirements (There are no financial data for a ROD)

                 The date the ROD is signed by the Regional Administrator or the Assistant
                 Administrator for OSWER is the completion date.
                                           -15-

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B.  Flaming      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.
                                             -16-

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                                     Exhibit VII-3
                    SCAP/STARS Targets for Selection of Remedy
ACTIVITIES
RI/FS Completions (ROD) (S/C-3)
First RI/FS Completions (ROD)
Subsequent RI/FS Completion (ROD)
STARS
TARGET
X*


SCAP
TARGET

X
X
QUARTERLY
TARGET
X
X
X
ANNUAL
TARGET
X
X
X
The STARS target combines first and subsequent as a single target.

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A.
Inconsistent
PRP
Alternative
B.  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.
                                             -17-

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             V. REFERENCES

Policy        National Oil and Hazardous Substance Pollution Contingency Plan (40 CFR) (March 8,
             1990).

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-1, "Final Guidance on Administrative Records for Selection of
             CERCLA Response Actions" (December 3,1990).

             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
             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
             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].
                                       -18-

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Guides       See Appendix A for the following guides:

             "A Guide to Developing Superfund Proposed Plans" (May 1990).

             "A Guide to Developing Superfund Records of Decision" (May 1990).

             "Superfund Land Disposal Restriction Guides" (July 1989 and December 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 398-8444.

Contacts     Selection of Remedy Guidance
             Contact Office of Emergency and Remedial Response, Hazardous Site Control Division,
             Remedial Operations and Guidance Branch, at FTS 398-8444.

             Site-Specific RQDs
             For Enforcement-lead, contact Regional Coordinator, Office of Waste Programs
             Enforcement, CERCLA Enforcement Division, Compliance Branch, at FTS 398-8484.

             For Fund-lead, contact Regional Coordinator, Office of Emergency and Remedial
             Response, HSCD, Remedial Operations Branch, at FTS 398-8444.

             State Concurrence
             Contact Office of Waste Programs Enforcement, CERCLA Enforcement Division,
             Guidance and Evaluation Branch, 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
             Evaluation Branch, at FTS 382-4826.

             Office of Emergency and Remedial Response, Hazardous Site Control Division, Design
             and Construction Branch, at FTS 398-8393.

             Office of Emergency and Remedial Response, Hazardous Site Control Division, Remedial
             Operations and Guidance Branch, at FTS 398-8444.
                                       -19-

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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)	      Review operative Remedy Delegation Report to ascertain what HQ
              review/comment or consultation is needed.

6)	      Send draft RI/FS report and draft proposed plan to appropriate
              program offices.

7)	      Review State comments, summarize them in proposed plan and
              draft Agency response.

8)	      Finalize proposed plan by lead Agency addressing support agency
              and other program office comments as appropriate.

9)	      Submit RI/FS, proposed plan, comments, and responses to
              Administrative Record, along with any other information used in
              reaching decision.

10)	     Publish newspaper notice of availability of proposed plan and RI/FS
              and other opportunities and resources for community input.

11)	     Notify persons on mailing list that proposed plan and RI/FS are
              complete.

12)	     Conduct public meeting upon request.

13)	     Conduct community  relations activities.

14)	     Conduct public comment period.
                           -20-

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Preparation for RD/RA Negotiations (see Chapter VIII, RD/RA
Negotiations/Settlement)
Final Selection of Remedial Alternative
15)	       Re-evaluate preferred alternative on basis of comments and new
               information received from the public including PRPs and other sources.
16)	       Prepare draft version of ROD Declaration and Decision Summary.
17)	       Prepare Summary and Response to Comments for Responsiveness
               Summary.
18)	       Conduct public comment period on any significant changes which were
               not logical outgrowths of the earlier remedial alternatives.
19)	       Finalize ROD Decision Summary.
20)	       Complete Responsiveness Summary.
21)	       Brief lead agency management on ROD.
22)	       Submit ROD to program offices and support agency, which will brief its
               management on the ROD.
23)	       Receive input from Regional counsel.
24)	       Receive concurrence from support agency on the selected remedy.
25)_	       Brief agency decision-makers and present ROD for signatures.
26)	       Publish notice and make ROD available to public through Administrative
               Record.
27)	       Provide information on ROD start and completion for entering into
               CERCLIS/WasteLAN.
28)	       Send copy of ROD to Headquarters.
                          -21-

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Appendix A

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                                                      MAY 2 9 1990

                      SUPERFUND SHORT SHEETS

    Related to the RI/FS/Selection of Remedy Process and ARARs


APPLICABLE QR RELEVANT AND APPROPRIATE REC

 (OERR. OPM. Policy  & Analysis Staff)
9234.2-01FS

9234.2-03/FS



9234.2-04FS




9234.2-05/FS



9234.2-06FS


9234.3-001



9234.1-02FS



9234.2-08FS




9234.2-07FS
ARARs Q's and A's

Overview of ARARs:
  Focus on ARAR Waivers

RCRA ARARs:
  Focus on Closure
  Requirements

CERCLA Compliance with
  State Requirements

CERCLA Compliance with the
  CWA and SDWA

ARARs Short Guidance
  Quarterly Report

Guide to Manual: CERCLA
  Compliance with Other Laws

ARARs Q's and A's: Compliance
  with the Toxicity
  Characteristics Rule: Part I

Summary of Part II: CAA, TSCA,
  and Other Statutes
 MAY 1989

 DEC 1989



 OCT 1989




 DEC 1989



 FEB 1990



 DEC 1989



SEPT 1989



 MAY 1990




 APR 1990
LAND DISPOSAL RESTRICTIONS  fLDRs)
9347.3-01FS
9347.3-02FS
9347.3-03FS
Superfund LDR Guide #1          JUL  1989
Overview of RCRA Land
  Disposal Restrictions  (LDRs)

Superfund LDR Guide #2          JUL  1989
Complying With the California
  List Restrictions Under Land
  Disposal Restrictions  (LDRs)

Superfund LDR Guide #3          JUL  1989
Treatment Standards and
  Minimum Technology
  Requirements Under Land
  Disposal Restrictions  (LDRs)

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9347.3-04FS       Superfund LDR Guide #4          JUL 1989
                  Complying With the Hammer
                    Restrictions Under Land
                    Disposal Restrictions (LDRs)

9347.3-05FS       Superfund LDR Guide #5          JUL 1989
                    Determining When Land
                    Disposal Restrictions (LDRs)
                    Are Applicable to CERCLA
                    Response Actions

9347.3-06FS       Superfund LDR Guide #6A         JUL 1989
                  Obtaining a Soil and Debris
                    Treatability Variance for
                    Remedial Actions

9347.3-07FS       Superfund LDR Guide #6B         DEC 1989
                  Obtaining a Soil and Debris
                    Treatability Variance for
                    Remedial Actions

9347.3-08FS       Superfund LDR Guide #7          DEC 1989
                  Determining When Land
                    Disposal Restrictions (LDRs)
                    Are Relevant and Appropriate
                    to CERCLA Response Actions
REMEDIAL INVESTIGATION/FEASIBILITY STUDIES  (RI/FS)

9355.3-01FS1      Getting Ready                   NOV  1989
                    Scoping the RI/FS

9355.3-01FS2      The Remedial Investigation      NOV  1989
                    Site Characterization
                    and Treatability Studies

9355.3-01FS3      The Feasibility Study           NOV  1989
                    Development and Screening
                    Of Remedial Action
                    Alternatives

9355.3-01FS4      The Feasibility Study           MAR  1990
                    Detailed Analysis of
                    Remedial Action Alternatives

9380.3-02FS       Treatability Studies            DEC  1989
                    Under CERCLA: An Overview

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RECORD OF DECISION  (ROD)

9335.3-02FS-1
9335.3-02FS-2
A Guide to Developing
  Superfund Records of
  Decision

A Guide to Developing
  Superfund Proposed Plans
MAY 1990
MAY 1990
REMEDY SELECTION
9355.0-27FS
A Guide to Selecting
  Superfund Remedial Actions
APR 1990
GROUND WATER

9283.1-2FS



TECHNOLOGY

9200.5-250FS



9200.5-251FS



9200.5-252FS



9200.5-253FS




9200.5-254FS
A Guide On Remedial Actions     APR 1989
  For Contaminated Ground Water
Innovative Technology           NOV 1989
  Soil Washing

Innovative Technology           NOV 1989
  In-Situ Vitrification

Innovative Technology           NOV 1989
  Slurry-Phase Biodegradation

Innovative Technology           NOV 1989
  BEST Solvent Extraction
  Process

Innovative Technology           NOV 1989
  Glycolate Dehalogenation
RISK ASSESSMENT

9285.7-01/FS2
Risk Assessment Guidance for
  Superfund: Volume 1 —
  Human Health Evaluation
  Manual (Part A)
DEC  1989

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ADDITIONAL SHORT SHEETS PLANNED
9347.3-06b/FS



9335.3-02FS-3



9335.3-02FS-4



9355.5-12FS

9355.4-01FS
Obtaining a Soil and Debris Treatability
Variance for Removal Actions

Guide to Developing No Action,  Interim Action,
and Contingency RODs

Guide to Addressing Pre-ROD & Post-ROD
Significant Changes

RPM Involvement

A Guide on Remedial Actions at Superfund Sites
with PCB Contamination

Superfund Sites Contaminated by Wood Treatment
Residues

A Guide on Remedial Actions at Municipal
Landfill Sites

Risk Assessment Guidance for Superfund
(Part B): Setting Preliminary Remediation Goals

Risk Assessment Guidance for Superfund
(Part C): Consideration of Risk of Remedial
Alternatives

Wetlands Requirements That May be ARARs for
Superfund Actions

Implementation of the Toxicity Characteristics
Rule: Part II

Obtaining a No Migration Variance Under the
LDRs

A Guide on On-Site Delisting of RCRA Wastes at
Superfund Sites

Complying with Third Third Requirements Under
the LDRs

Obtaining a Soil and Debris Treatability
Variance for Remedial Actions  (Revised)

Discharging CERCLA Wastewater to a POTW

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                             United States
                             Environmental Protection
                             Agency
                             Office of
                             Solid Waste and
                             Emergency Response
Directive: 9335.3-02FS-2
May 1990
   &EPA
A  Guide to  Developing
Superfund   Proposed  Plans
   Office of Emergency and Remedial Response
   Hazardous Site Control Division
                                                          Quick Reference Fact Sheet
Section 117(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended by the
Superfund Amendments and Reauthonzation Act (SARA) of 1986, requires preparation of Proposed Plans as part of the site remediation
process. The Proposed Plan is prepared after the Remedial Investigation/Feasibility Study (RI/FS) is completed and is made available with the
RI/FS to the public for comment. The Proposed Plan highlights key aspects of the RI/FS, provides a brief analysis of remedial alternatives
under consideration, identifies the preferred alternative, and provides 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, the RI/FS, and the other contents of the Administrative Record 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 the Proposed Plan in a fact sheet format For some highly complex sites or remedies, more detailed Plans may be
appropriate. All Proposed Plans should be written in a style that makes the material easy for the public to understand and should emphasize
that the preferred alternative identified in the Proposed Plan is a preliminary determination, and that the Agency is requesting commentson all
of the alternatives.

Detailed guidance on the preparation of the Proposed Plan is provided in Chapters 2,3, and 9 of the "Interim Final Guidance on Preparing
Superfund Decision Documents" (the "ROD Guidance") (OSWER Directive 9335.3-02, November 1989, EPA/540/G-89/007).
 Introduction
 Begin  with a statement  of  the document's purpose.  This
 introduction should state the site name and location, identify the
 lead and support agencies, and state that the Proposed Plan:

 a  Fulfills the requirements of CERCLA section 117(a);
 o  Describes the remedial alternatives analyzed for the site or
    operable unit:

 a  Identifies the preferred alternative and explains the rationale
    for the preference;

 a  Highlights key information in the RI/FS and administrative
    record, to which the reader is referred for further details;

 a  Solicits community involvement in the selection of a remedy;
    and

 o  Invites public comment on all alternatives.

 Site Background

 Provide a brief description of the site, including:

 a  History of site activities that led to current problems at the site;
    and

 o  The site area or media to be addressed by the selected remedy.

 Figure 1 is an example of a site map that could be included.

 Scope and Role of Operable Unit or Response
 Action

 a  Identify the principal threats posed by conditions at the site;
    and
                               a  Describe the scope of the problems addressed by the preferred
                                  alternative  and its role within  the overall site clean-up
                                  strategy.

                               Summary of Site Risks

                               o  Provide a brief overview of the baseline risk assessment,
                                  including the contaminated media, contaminants of concern,
                                  exposure pathways and populations, and potential or actual
                                  risks;

                               o  Describe how current risks compare with remediation goals;
                                  and

                               o  Discuss environmental risks, as appropriate.

                               Summary of Alternatives
                               Describe briefly each of the alternatives evaluated in the detailed
                               analysis of the FS. Highlight the following:

                               D  Treatment components;

                               a  Engineering  controls  (noting  the  type  of  containment
                                  controls); and

                               o  Institutional controls.

                               Quantities of waste and implementation requirements related to
                               each component should be noted, as well as major applicable or
                               relevant and appropriate requirements (ARARs), the estimated
                               construction, and operation and maintenance (O&M) costs (also
                               expressed in present worth), and the implementation time of each
                               alternative.  Emphasize  that these latter two evaluations are
                               estimates.  An example is presented in Highlight 1.

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                        Figure 1
             EIO Industrial Site and Surroundings
              l Contamination

            Private wells
- Sit* Boundary

 Municipal Wall  ^ N r

        • NOT TO SCALE
 Highlight  1: Summarizing an Alternative
 Treatment Components:

 Excavation, on-site incineration of contaminated toils, 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 Present-Worth Costs: $42,708,780
    Estimated Implementation Timeframe:   30 Months

 Under this alternative, a mobile incinerator would be brought
 to the site, and 28,000 cubic yards of soils contaminated with
 RCRA listed wastes would be excavated and incinerated on-
 site to BOAT levels established under the RCRA Land Dis-
 posal Restrictions (LDR). Waste gases and water from this
 process would be collected and treated off-site in a RCRA
 Subtitle C treatment facility; residual metals and ash would be
 solidified to achieve LDR treatment standards and disposed
 off-site in a RCRA Subtitle C disposal facility.
Evaluation of Alternatives and the Preferred
Alternative.

o  Identify the preferred alternative, emphasizing that the
   selection of this alternative is preliminary and could change
   in response to public comments or other new information.
   Sample text is presented in Highlight 2.
  Highlight 2: Stating the Preferred Alternative
  The preferred alternative is alternative number 3. Alterna-
  tive 3 includes excavation and on-site incineration of con-
  taminated soils, with solidification and off-site disposal of
  residual metals and ash. Based on new information or pub-
  lic comments, EPA, in consultation with the State  of Ten-
  nessee, may later modify the preferred alternative or select
  another remedial action presented in this Proposed Plan
  and the RI/FS. The public, therefore, is encouraged to re-
  view and  comment on all of the alternatives identified in
  this Proposed Plan.  The RI/FS  should be consulted  for
  more information on these alternatives.
                                   o   Introduce the nine evaluation criteria used to evaluate the
                                       alternatives.


                                   a   Summarize the expected performance of the preferred
                                       alternative in terms  of  the nine evaluation criteria
                                       explaining how the preferred alternative compares to the
                                       other alternatives with  respect to those criteria.  This
                                       description is for the preliminary preference. Sample text
                                       for one criterion is presented in Highlight 3.
Highlight 3: Presenting the Evaluation of
Alternatives
Short-term effectiveness.
Alternative number 4 uses a treatment process for soils and
disposal of residuals in an on-site landfill that contains the
contaminated soils and reduces the possibility of direct hu-
man contact with contaminants more quickly than all of the
other alternatives except Alternative 1 (no action). Under
the preferred alternative, once the volatile organks have
been collected in canisters, there is some minor short-term
risk of exposure to the community during transportation of
the canisters to a disposal site.
Because the capacity of on-site and off-site incinerators is
limited, under  Alternatives  3 and 5 contaminated soils
would be stockpiled for up to six years.  Under these two
alternatives, the risks of direct contact with stockpiled con-
taminated soils would be increased until incineration has
been completed. In addition, there are some risks of expo-
sure to air emissions from the incinerators.
                                 The nine evaluation criteria are summarized below.
                                 Threshold Criteria:
                                   -  Overall protection of human health and the environment
                                      addresses whether a remedy provides adequate protection
                                      of human health and the environment and describes how
                                      risks  posed  through each exposure pathway are elimi-
                                      nated, reduced, or controlled through treatment, engi-
                                      neering controls, or institutional controls.

                                   -  Compliance with applicable or relevant and appropriate
                                      requirements (ARARs) addresses whether a remedy will
                                      meet all of the ARARs of other Federal and State envi-
                                      ronmental laws and/or justifies a waiver.
                                 Primary Balancing Criteria:
                                   -  Long-term effectiveness and permanence refers to ex-
                                      pected residual risk and the ability of a remedy to maintain
                                      reliable protection of human health and the environment
                                      over time, once clean-up goals have been met

                                   -  Reduction of toxicity, mobility, or volume through treat-
                                      ment 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
                                      clean-up goals are achieved.
                                                         -  2 -

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   -  Implementabllity 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  O&M costs, also
      expressed as net present worth-costs.

Modifying Criteria:

   -  State/Support Agency Acceptance reflects aspects of the
      preferred  alternative and  other  alternatives that the
      support  agency favors or objects  to, and any  specific
      comments regarding State ARARs or the proposed use of
      waivers.  The Proposed Plan should address views known at
      the time the plan is issued but should not speculate.  The
      assessment of State concerns may not  be complete until
      after the  public comment  period on the RI/FS  and
      Proposed Plan is held.

   -  Community Acceptance summarizes the public's general
      response to the alternatives described in the Proposed Plan
      and in the RI/FS, based on public comments received. Like
      State Acceptance, evaluations under this criterion usually
      will not be completed until after the public comment period
      is held.
Present  the lead agency's preliminary determination that the
preferred alternative provides the best balance of tradeoffs with
respect to the nine criteria. Sample text is presented in Highlight
4.  The preferred  alternative is anticipated to meet the following
statutory requirements to:

   o  Protect human health and the environment;
   a  Comply with ARARs (or justify a waiver);
   o  Be cost-effective;
   o  Utilize permanent solutions and alternative treatment or
      resource recovery technologies, to the maximum extent
      practicable; and
     Satisfy the statutory preference for treatment as a principal
     element, or justify not meeting the preference.
    Highlight 4: Summarizing the Statutory
    Findings
    In summary, the preferred alternative is believed to pro-
    vide the best balance of trade-offs among alternatives
    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 al-
    ternative would protect human health and the environ-
    ment,  would  comply with ARARs, would be  cost-
    effective, and would utilize permanent solutions and alter-
    native treatment technologies or resource recovery tech-
    nologies to the maximum extent practicable. The pre-
    ferred alternative should/will not satisfy the preference for
    treatment as a principal element.
Community Participation
The Proposed Plan is a public participation decision document. It
should include information that helps the public understand 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 meeting(s)
      planned to be held;

  a  Identify names, phone numbers, and addresses of lead and
      support agency contact people to whom comments should
      be sent;

  o  State whether a special notice has been issued to the
      potentially responsible parties (PRPs), if applicable; and

  o  List the location of the Administrative Record and other
      information repositories.
                                                        - 3 -

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                             United States
                             Environmental Protection
                             Agency
                            Office.of
                            Solid Waste and
                            Emergency Response
Directive: 9335.3-02FS-1
May 1990
   SEPA
A  Guide  to  Developing
Superfund  Records  of  Decision
   Office of Emergency and Remedial Response
   Hazardous Site Control Division
                                                          Quick Reference Fact Sheet
EPA issues the Record of Decision (ROD) as the final remedial action plan for a site or operable unit The ROD summarizes the problems
posed by the conditions at a site, the alternative remedies 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 section  121 of the Comprehensive  Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986.
This guide provides ROD prcparers 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 the declaration of statutory
determinations is made. Additional information on ROD preparation is provided in Chapters 6,7, and 9 of the "Interim Final Guidance on
Preparing Superfund Decision Documents" (the "ROD Guidance") (OSWER Directive 9335.3-02, November, 1989, EPA/S40/G-«9/007).


 THE DECLARATION
The Declaration is a formal statement signed by the EPA Regional Administrator (RA)or Assistant Administrator (AA)of the Office of Solid
Waste and Emergency Response (OSWER) that identifies the selected remedy and indicates 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, if appropriate.
The Declaration should be approximately two pages long and should 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 ac-
      tion for the [site], in [location], which was chosen in accor-
      dance with CERCLA, as amended by SARA, and, to the ex-
      tent practicable, the National Oil and Hazardous Substances
      Pollution Contingency Plan (NCP1 This decision is based
      on the administrative record for this site."
      The State/Commonwealth of	concurs with the se-
      lected remedy."

   Assessment of the Site
      "Actual or threatened releases of hazardous substances
      from this site, if not addressed by implementing the response
      action selected in this Record of Decision (ROD), may pre-
      sent an imminent and substantial endangerment to public
      health, welfare, or the environment"

   Description of the Selected Remedy
   a  Describe the role of this operable unit within the overall site
      strategy.  (Does this operable unit address the principal
      threats posed by the site?)
   a  Describe the major components of the selected remedy in
      bullet fashion.
   Statutory Determinations
   a  When the selected remedy satisfies the statutory preference
      for treatment as a principal element by addressing the prin-
      cipal threads) at the site with  treatment, the Declaration
      should state:
        "The selected remedy is protective of human health and
        the environment,  complies  with Federal and State re-
        quirements that are legally applicable or relevant and ap-
        propriate to the remedial action [or "a waiver can be justi-
        fied for whatever Federal and State applicable or relevant
        and appropriate requirement that win not be met"], and is
        cost-effective. This remedy utilizes permanent solutions
        and alternative treatment (or resource recovery) technol-
        ogy to the maximum extent practicable, and satisfies the
        statutory preference for remedies that employ treatment
        that reduces toxkaty, mobility, or volume as a principal
        element"
                          (or)
                               When a remedy involving little or no treatment is selected (i.e.,
                               treatment is not utilized to address the principal threat(s)X
                               CERCLA, as amended by SARA, requires a statement and ra-
                               tionale explaining why a remedial action involving such reduc-
                               tions was not selected.  The Declaration should state:
                                 "The Detected remedy is protective of human health and the
                                 environment, complies with Federal and State requirements
                                 that are legally 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 re-
                                 quirement that will not be met"], and is cost-effective. This
                                 remedv utilizes permanent solutions and alternative treat-
                                 ment (or resource recovery) technologies, to the maximum
                                 extent practicable for this site. However, because treatment
                                 of the principal threats of the site was not found to be practi-
                                 cable for "within the limited scope of this action"], this rem-
                                 edy does not satisfy the statutory preference for treatment as
                                 a principal element"
                               If the remedy will leave hazardous substances on-sitc 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
                                 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)

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 THE DECISION SUMMARY

 The Decision Summary provides an overview of the problems
 posed by the conditions at a site, the remedial alternatives, and the
 analysis of those options. The Decision Summary explains the
 rationale for the selection and how the selected remedy satisfies
 statutory requirements. The information to be presented in each
 of the sections of the Decision Summary is outlined below. In
 most  cases,  much  of the  information  presented  can  be
 summarized from the Remedial Investigation/Feasibility Study
 (RI/FS).
 Site Name, Location, and Description.  Briefly describe the
 site in terms of:

    a  Name, location, address (include maps, a site plan, or
       other graphic descriptions, as appropriate);
    a  Area and topography of the site, especially if it is located
       within a floodplain or wetlands;
    a  Adjacent land uses;
    a  Natural resource uses;
    a  Location and distance to nearby human populations;
    n  General surface-water and ground-water resources; and
    a  Surface and subsurface features (e.g., number and volume
       of tanks, lagoons, drums, or other structures).
                            ent Activities. Summarize the
Site History and Enforce!
following:

    a  History of site activities that led to current problems;
    o  History of Federal and  State site  investigations  and
       removal and remedial actions conducted under CERCLA
       or other authorities; and
    a  History of CERCLA enforcement activities at the  site,
       including:

       -  The results of searches for potentially responsible
          parties (PRPs); and
       -  Whether special notices have been issued to PRPs.


Highlights of Community Participation.  Summarize the'
major public participation activities, as follows:

    a  Describe how the public participation requirements of
       CERCLA sections 11300(2XBX»-v) and 117 were met in
       the remedy selection 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 should be addressed in the "Responsiveness
Summary'' of the ROD.
Scope and Role of Operable Unit [or Response Action]
Within Site Strategy.

    D  Describe the role of the remedial action within the overall
       site clean-up strategy.
    a  Summarize the scope of the problems addressed by the
       remedial action selected.  Will the action address any of
       the principal threats posed by conditions at the site?
Note: The Statutory Determinations section of the ROD should
explain whether or not the selected remedy satisfies the statutory
preference for  remedies employing  treatment that  reduces
toxkaty, mobility, or volume as a principal element By indicating
whether the principal threads) will be addressed by the action, the
Scope and Role section of the Derision Summary should provide
the basis for that statutory determination.
 Summary of Site Characteristics.  Highlight the following
 factors:

 a  Airknown or suspected sources of contamination;
 n  Contamination and affected media, including:
       -  Types   and  characteristics  (e.g.,  toxic,  mobile,
          carcinogenic, non-carcinogenic) of contaminants;
       -  Volume of contaminated material; and
       -  Concentrations of contaminants;
 a  Location of contamination and known or potential routes of
    migration, including:
       -  Population and environmental areas that could be
          affected, if exposed;
       -  Lateral and vertical extent of contamination; and
       -  Potential  surface  and  subsurface  pathways of
          migration.

 Include maps, charts, tables, and other graphic descriptions, as
 appropriate.


 Summary of Site Risks. Summarize the results of the baseline
 risk assessment conducted for the site.

 Human Health Risks:
    a  Identify the concentrations of the contaminants (indicator
       chemicals) of concern in each medium of exposure;
    a  Summarize results of the exposure assessment;
    o  Summarize the toxitity assessment of contaminants of
       concern;
    D  Summarize risk characterization for each pathway by
       population and the total risk for the site, including:
       -  Potential or actual carcinogenic risks;
       -  Noncarcinogenic risks; and
       -  Brief explanation of the meaning of key risk terms.

 Environmental Risks:
    a  Summarize the effects  of the contamination on critical
       habitats; and
    D  Summarize the effects of the  contamination  on any
       endangered species.
 Note: This summary of the baseline risk assessment provides the
 rationale for  the lead agency's either undertaking a response
 action or taking no action.


 Description of Alternatives. The objective of this section is to
provide an understanding of the remedial alternatives developed
for the site and their specific components.  Each alternative
should be described in terms of the components listed below.
 Figure 1 is an example of elements to be addressed in this section.
    D  Treatment  components.  Describe the  following, as
       appropriate:
       -  Treatment  technologies (e.g.,  thermal destruction)
          that will be used;
       -  Type and volume of waste to be treated;
       -  Process sizing; and
       -  Primary treatment levels  (e.g., best demonstrated
          available technology [BOAT], percentage or order of
          magnitude of concentration reductions expected).
    a  Containment or  storage components.  Describe the
       following, as appropriate:
       -  Type  of  storage  (e.g.,   landfill,  tank,  surface
          impoundment, containers);
       -  Type of closure that will be implemented (RCRA
          Subtitle C clean closure, landfill closure. Subtitle D
          solid waste closure);
       -  Type and quantity of waste to be stored; and
       -   Quantity of untreated waste and treatment residuals
          to  be disposed off-site or  managed  on-site in a
                                                        - 2 -

-------
etc.)andthedegree
                      ntifttaram technology unit.
                                 USUanHU WBGUUUKff \
                                 I remaining taitadTw
                                Describe the following, as
       appropriate?
       -  Ground-water dassification(e.g.. Class 1,11, or m);
       -  Remediation goals (e-g., Maximum Contaminant
          LeveblMCUf);
       -  Estimated restoration timeframe; and
       -  Area of attainment
   o  General  components.   Describe  the  following,  as
       appropriate, for each of the three previous components:
       -  Contaminated media addressed (and physical location
          at the she);
       -  Risk reduction (including initial risk);
       -  Whether treatabitity testing  has been or will be
          conducted;
       -  Implementation requirements;
       -  Institutional controls;
       -  Residual levels (e.g., delating, BOAT);
       -  Assumptions, limitations, uncertainties;
       -  Estimated implementation timeframe; and
       -  Estimated capital, O&M, and present-worth costs.
   a  The major applicable or  relevant and appropriate
       requirements (ARARs), risk-based levels, and other "to
       be considered" (TBCs) being met/utilized lor the specific
       components of the remedial alternative.
       -  The description should summarize how the specific
          components of the alternative will comply with the
          major ARARs, as well as briefly describe why the
          standard is applicable or relevant and appropriate
          (e.g.,  placing a RCRA characteristic waste, thus
          RCRA closure is 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
tb 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
hi 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.  The nine  evaluation criteria  are
summarized below.

Threshold Criteria

Q Overall protection of human health and the environment
   addresses whether 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.
a Compliance with applicable or relevant and appropriate
   requirements (ARARs) addresses whether a remedy will meet
   all of the ARARs of other Federal and State environmental
   laws and/or justifies a  waiver.

Primary Balancing Criteria

Q Long-term effectiveness and permanence refers to expected
   residual risk and the ability of a remedy to maintain reliable
   protection of human health and the environment over time,
   once clean-up goals have been met
a Reduction of toxicity, mobility, or volume through treatment
   is the anticipated performance of the treatment technologies a
   remedy may employ.
D 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 clean-up goals
   are achieved.
o Implementability  is  the  technical   and  administrative
   feasibility of a remedy, including the availability of materials
   and services needed to implement a particular option.
D Cost includes estimated capital and O&M costs, as well as
   present-worth costs.
Rgatl
Components of Alternatives to be Described AIR
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-------
Modifying Criteria
a  State/Sapport Agency Acceptance should be used to indicate
    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.

n  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  long-term  effectiveness  and  permanence.   Alternatives
generally  should not  be  described  as "permanent" or
 impermanent"
Only reductions achieved through treatment should be addressed
under the "reduction of tooticity,  mobility, or volume through
treatment"  criterion.   Reductions  of mobility accomplished
through containment  should  be  addressed  under  ''overall
protection of human health and the environment"

The Selected Remedy. In this section of the ROD, identify the
selected remedy and remediation goals and state:
    n  The carcinogenic risk  level  to be attained and  the
       rationale for it; and
    Q  The specific points of compliance, as appropriate, for the
       media being 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 CERCLA to:
    a  Protect human health and the environment;
      o  Comply with ARARs (or justify a waiver);
      o  Be cost-effective;
      a  Utilize permanent  solutions and alternative treatment
          technologies or resource recovery  technologies to the
          maximum extent practicable; and
      o  Satisfy the preference for treatment as a principal element
          or justify not meeting the preference.
   A description of how the selected remedy  satisfies each of the
   statutory requirements should be provided.  Points to address for
   each of these requirements are presented in Highlight 2.
   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:
      a  Identify the preferred alternative originally presented in
          the Proposed Plan;
      o  Describe the significant changes; and
      a  Explain the reason(s) for such changes.

   THE RESPONSIVENESS SUMMARY
   The  final  component of the ROD is  the Responsiveness
   Summary, which serves two purposes. First, it provides lead
   agency  decisionmakers  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 Superftind:  A Handbook (OSWER
   Directive 9230.073B,  June  1988).  That document details the
   process of preparing the Responsiveness 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 through
        treatment, engineering controls, or institutional controls,
        to ensure adequate protection of human health and the
        environment (including that the site risk will be reduced
        to within the 10-4 to 10-6 range for carcinogens, and that
        the Hazard Indices for non-carcinogens will be less than
        one).
     o  Indicate that no unacceptable short-term risks or cross-
        media impacts will be caused by implementation of the
        remedy.
  Compliance with ARARs
     o  State whether  the selected  remedy will comply with
        ARARs. When appropriate, state the waiver that is being
        invoked and justify the waiver. Organize the ARARs ac-
        cording to chemical-specific, location-specific, and ac-
        tion-specific.
     a  List and describe the Federal and State ARARs that the
        selected remedy will  attain, distinguishing applicable
        from relevant and appropriate requirements, as  neces-
        sary. Note: Cite the specific section of the statute or regu-
        lation that contains the requirement and provide a brief
        synopsis of the requirement
     a  List and provide the rationale for using any "to be consid-
        ered" (TBCs). Note: TBCs are not ARARs, but they may
        be used to design a remedy or set clean-up levels if no
        ARARs address the site, or if existing ARARs do not en-
        sure protectiveness.

  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 to be spent
Utilization of Permanent Solutions and Alternative
Treatment Technologies or Resource Recovery Technolo-
gies to the Maximum Extent Practicable ("MEP")
   n Describe the rationale for the remedy selection, explaining
      that the remedy selected provides the best balance of trade-
      offs among the alternatives with respect to the evaluation
      criteria, especially the five balancing criteria.
   D Discuss those criteria that were most critical in the selec-
      tion decision  (i.e., those that distinguish the alternatives
      most).
   a Highlight the tradeoffs among the alternatives with respect
      to the five balancing criteria.
   a Describe the role of the State and community acceptance
      considerations in the decision-making process (modifying
      criteria).
   Q Provide a general statement that the selected remedy
      meets the statutory requirement to utilize permanent solu-
      tions and treatment technologies, to the maximum extent
      practicable.
Note: For a remedy that does not employ any treatment or re-
source recovery technologies, the explanation of  the rationale
should discuss the reasons why treatment was found to be impracti-
cable or acknowledge that treatment was not within the limited
scope of the action (e.g., an interim action).
Preference for Treatment as a Principal Element
   a Describe how the preference for treatment is satisfied if the
      remedy uses treatment to address the principal threads)
      posed by conditions at the site; or
   a Explain why the preference is not satisfied if treatment is
      not used to address the principal threats. This explanation
      will refer back to the explanation under the "MEP" finding
      that explains why treatment of the principal threats  was
      found to be either impracticable or not within the limited
      scope of the action.

-------
SEPA
                          United States
                          Environmental Protection
                          Agency
                         Office of
                         Solid Waste and
                         Emergency Response
  Directive: 9347.3-O1FS
  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.
                                    1: LDR STATUTORY DEADLINES
                                 Waste
Statutory Deadline
                            Spent Solvent and Dioria-
                            Cbotammg Wastes

                            California List Wastes

                            Past Third Wastes

                            Spaa SoMsnt, DKUQO-
                            OmtiHUtng. and California
                            list Sod and Debris From
                            CERCLAJRCRA Corrective
                            Actions

                            Second TTurd Wastes

                            Third Tiard Wastes

                            Ncwty Identified
                            Wastes
November 8, 1966


JulyS, W87

AugastS, 1988

November 8» 1988
      1989

May 8, 1990

Within 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 all 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 then-  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 AND
   DEBRIS

       Sot! is defined as materials that are
   primarily of geologic Origin $Oc6 as $afl
-------
   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  BOAT  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 taining 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 snipped
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
GUIDES!
#2  Complying Wtb the California List
     Restrictions  Under LDRs

#3  Treatment Standards and Minimum
                 Re
-------
    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 HI 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 AND TREATMENT STANDARDS
                                      FOR CALIFORNIA LIST WASTES
   Catfcjjmi* Ci«'
     Constituent  •
"ProfcUjitlon twvel'
                                                        $reitwent Standard^
Free Cyanides

Met«ls
 Arsenic
 Cadmium
    iead
    lUckei
    Selenium
                                   1000 rng/l
          500 mg/l
          100 mg/1
          500 rag/1
          580 mg/1
           20 -rag/1
          I3<| mg/1
          IQO thfc/1
          130.
   Corrosives
    > SOO ppn
    > SO ppn arid < $00--g)».
          pR < 2 . Q
                                     So
           SO ppm
Salogenated Or^anle Cooflpotmds tBOCs)

                                l&OO
    Dilute Wa*t«wat«r*
    (<10<000 as/kg)
 Won-IJllut« Wost«»at«r*
 and Wftn-Liquida

 Kotl-RCRA/CERCLA Soii
 and
    RCRA/CERCLA Soil and
10QO m«Ag


1000 mg/kg


1000
                                HO8£ "* bard h«jraer


                                SC^fi '-•• Tiaxd hamner
                                                 'July «,

                                                  July B,
                                                                                             1987
                                                        SORE — Codified
                                                        ptoh Jfrxtl on :
                                JHClHERATIOlf a*
                                fi«d trnd*i T5CA,
                                         CRE
                                                        IWCISERATION OR THERMAL
                                                        a£$m)CIX<»? in Boiler,
                                                        99.99991 BR£
                                80SE —  CodiJti«d
                                           levels
                                                  ^uly «,


                                                  Ju;ly 8,


                                                  July S,
                                                                                             1987
                                                                                             1987
                                                           IKCISESATIOB 99.99X ORE      KttV,  S,  19S8
                                                           IBCI8ERATIOW
                                                                             D8E
                                                           July 8, 1989
                                                           IXCISERATIOK 99.991 CRE      Hov.  8,  1990

-------
 A 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  (BOAT) 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
promulgated  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
                    FOR K062 WASTE
 Constituent
  Treatment
Total Waste
fmg/kg>
      Nonwastewater
        Total chromium
                           ISA .
 Wastewatex
•'•• Total chromium
  fflcfcsl
                           032
                                  Standard
                                    TXXP
          ••  --m.
              NA
        K&S2 waste is spent pkklc liq^Or generated by
        tTifi steel Cntshtng operations of facilities
        mrfthte tfts *nw» An* stes? j
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 BOAT, 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 Wastes

                            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 D1OXINS
    TYPE Of RESTRICTED
   RCRA HAZARDOUS HASTE
TREATMEBT STAKDARD
          DAZE
    LDR RESTRICTIOH IB EFFECT
     AS Of HOVQffiER a, 19C&
   F001 to FOGS (spent
   solvent - cottt aitUng
   wastss)

   F02Q to F0.23,
   FD26 to FD2$ (dioxin-
   containins wastes)

   Soil and debris
   contaminated with
   solvgnt/dioxin
   NOT from CERCLA/RCRA
   corrective actions

   Soil' and debris
   contaminated with
   solvent/choxin
   from CERCLA/RCRA
   corrective actions
November 8,
or Hov6fflb«r 8,  19-88*
WoveBiber S, 1-986
 November a,  198$
 November 8,  1990
treatment  standards as concentration
levels
                                Treatment standards as- concentration
Treatment  standards a* concentration
level* (TCU>>
Minimum technology requirements if
disposed of in landfill or surface
impoundment
      Soil and debris contanunec! with solvent-containing  wastes were granted a statutory two-year extension to
   Novetnber a, 1988.   All other solvent -containing wastes became restricted on November 8, 1986.

-------
  Highlight 3 - EFFECTIVE DATES AN& LBR RESTRICTIONS FOR CALIFORNIA LIST WASTES*7
    tree or RESTRICTED
   fiCRA HAZAHDOOS WASTE
TSEATMEHT SIAKDAHD
         t DATE
JJ» KEStRICKOS
 AS OF J0VEMEER 8, 1968
  California list PCBs


  Liquid and -non-liquid HOCs
  Soil and dsbris contaminated:
  with HQCs HOT from CEHCLA/ECRA
  corrective actions

  Soil and debeis contaminated
  with HQCs from CERCLVRCRA
  corrective actions
     July 8. 1987


     November 8,  1988


     July 8, 1969



     Saverabsr 6,  1990
 Treatment standards as specified
 technology tie »}

 Treatment standards as. specified
 technology t i e* >

 Minimum technology requirements if
 disposed of in iandfill or surface
 impoundment

 Minimum technology requirements if
 disposed of in landfill, or surface
 impoundment
     See Superfund LBR Guide i**  for soft and hard hammer 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.
            4 - EFFECTIVE; DATES AND LDR RESTRICTIONS FOR CERTAIN FIRST THIRD WASTES*'
    TYFE OP HESTRICTKD
   BORA BAZARDOCS WASTE
THEATMEHT SIASDARD
  EFFECTIVE DATE
US HESTRICTIOH IH EFFECT
 AS Of HOVOffiEB 8.
  FliSt Third wastes Cnot
  otherwise accounted for}='
  Soil and debris contaminated
  with First. Thiid Wastes •  . .
  foe which BDAT if pt^ftr thart
  solids incinaretion  . •.
  Soil and dabris «o»t«niii«t«d
  with First Thi.r4 >«stws
  fox which BDAT Is solids
  incineration
     August S, 1988         Tie«ttostit  standards as concentration
                           leveis (?WA and TCLP) and CfOi A few waste
                           codesi "no land disposal"


     August a, 1986         treatment standards as  concentration
                           letfeis 
-------
    EPA
                          United States
                          Environmental Protection
                          Agency
                                                 Office of
                                                 Solid Waste and
                                                 Emergency Response
                                                                     Directive: 9347.3-O4FS
                                                                     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  Delis ting).   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
                  Highlight 1 - F »n4 K SOFT HAMMER WASTES (as of June 8, 1989)
Waste
Code

FDQ6
F019
K004
K008
K011
KD13
KQXA
KQ17
K021
K022.
KD25
K229
                                     Waste
                                     Code
          wastewaters- «nd nonwartewaters
          wastewat«r* and nonwaBtenatsrs
          wast«wat«r« «tid nonw«stewaters
          wastewateirs

          wasfcewaters
          wastewaters and noowastswatsrs
                                     K060
                                     K061
                                     KD69
                                     KQ73
                                     KQ83
                                     K06A
                                     KOB5
                                     KJD8$
  KQ35
  K036
  K041
  KC12
wastewaters
wastewaters
wastewaters
wastewaters and nonwastewatsrs
wastewaters and nODwastewaters
                                               KQ96
        wastewaters and nonwastewaters
        wastewaters and nonwast-ewaters
K098
KHJ1
K102
K105
K106
                                                          Physical Form
                    and
          wastewaters
          wastewaters
          wastewaters and
          wastewaters and
          waKtewaters and nonwastewaters
          wastewaters saA nonwastewaters
          wastewaters and nonwastewaters
          wastewsters
          wastewsters
          wastewatera
          wastewaters and nouwastewaters
          wastewaters and nonwastewaters
                                                wastewaters and nonwast«waters
                                                         and nonwastewaters
    Fox a complete listing of soft fcammer waste restrictions, including all t and tl wastes that are restricted,
  consult with EPA Readquattfers

-------
    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 TREATMEIfT

   «Pra6ti.fc.aHy Available -  Site managers. B»y  . •
    consider cost in determining what treatments
    are "practically available" according to. tti«
    following cost ratio;

      Cost of fcreataeat. afotjaacp't T  and  disposal
            Coat of shipment and disposal

    -  A ratio of 2.0 or gze-atar  (i-e,., th». cost
       of treatment at least doubles the tQ?t of
       disposing of the waste without, tr«at»ettt)
       generally is not "prAttical">

    -  A ratio between 1.5 an*  2.$  &eaar»liy
       practical unlessf 
-------
     Highlight $ - SQft RAMMER NOTflFICATlON, CERTIFICATION, AND DEMONSTRATION
     REQUIREMENTS -.           ;                        	
     KEQUZREKENT
                            SENT TO
                                  REQUIRED IJJFGKMATIQ8
      IF LAUD DISPOSAL OCCURS ZH SURFACE IMPOUHDMEHT OR LANDFILL UHITS
      (off-site only)
      if treatment is
      not practically
      available
      toff-site only)
     CEStEIFICATIOH -
     If treatment:it
     practically
     available
      (off-sit* only)
      If no treatment
      1& available
               and
      If treatment
      is available
      (off -site and
Treatment or
disposal
facility
receiving.
waste
     each
waste
shipment
Ratification that the wast* is a soft hammer
wast*.   Specific  information includes:

- EPA hazardous waste number j
•- Any applicable  prohibitions (e.g., soft
    hawser provision);
- Manifest number associated -with shipment of
    waste; end
                            EPA Regional
Disposal
facility
receiving
waste
At tilttS Of
first wa»t«
shipeent and
copy with
                                             shipmsttt
Certification Should  fa$jSear 6S follows T

"EPA certifies 'trndsr  -penalty at law that the
requirements of *Q CfH  2.68-.S(aJ(l} have been met
and that disposal in  a  landfill OK s»r£ace
i»jiotm.
-------
                      Highlight 4 - IDENTIFYING SOFT HAMMER WASTE RESTRICTIONS
Find another surface
Impoundment or landfill unit
that eompllet with me minimum |
technology restrlctfon or
another type of land - based
unit
                                                                DOM
                                                             the disposal
                                                             unit meet the
    Does
  the unit have
  an equivalent \ No
retrofitting variance
  under RCRA §
    5(B(2)
    win
  me waste
bo disposed of
In a surface Im-
poundment or
  landfill?
                        soft hammer
                         watte alao
                         aCallfernla
                         lltt watte?
It
 practically
 available?
                                    Determine the bait treatment
                                    that la practically available and
                                    contract with that facility to
                                    handle (he waste.
                                                              Dispose of the waste In
                                                              the minimum technology -
                                                              compliant unit
                    Meet California list
                    standards (Soft
                    hammer provlalona do
                    not apply.)
                                  If neceesary. treat to
                                  California list
                                                                             ft necessary, comply
                                                                             wMl other and disposal

                                                                             storage prohlbMon).
                                                                                            Comply with the
                                                                                            appropriate notmcaoon
                                                                                                    wtd
                                                                                            demonstration
HARD  HAMMER WASTES

    The hard hammer provisions prohibit  land disposal
of  restricted  wastes  if  EPA  fails  to  promulgate
treatment  standards  by  the statutory deadlines for
solvent- and dioxin-containing and California list wastes
and by May 8, 1990, for aH of the  scheduled wastes.
The deadlines for these wastes are shown in Highlight
5.   At present, the  hard hammer provisions have only
fallen for California list cyanides and metals.  EPA has
also codified statutory prohibition levels for California
list  corrosive  wastes  and  dilute  HOC  wastewaters.
Codification of  the prohibition levels has  the same
effect as letting  the hard hammer fall:  land disposal
of these wastes is prohibited when wastes are found in
concentrations above the prohibition levels.

    There  are only two  exceptions to the  prohibition
on land disposal of the hard hammer wastes:  delisting
and a No-Migration  Petition.   Delisting  is a general
option  for  demonstrating  that a  listed  waste  is  no
longer hazardous that is available under RCRA §260.20
and §260.22.   The process  to obtain No-Migration
Petitions  is specified in  RCRA §268.6.   To  obtain a
Petition, disposal facilities demonstrate that there will
be  no  migration of hazardous constituents from the
disposal unit or injection zone  for as long as the waste
remains hazardous.  This is a rulemaking petition and
is  expected to require extensive documentation.
                                                            HigfaUghi  5: HARD HAMMER DEADLINES
                                                             Waste
                                             Hard Hammer Statutory
                                                   Deadline
                                                            Solvent &
                                                            dioxin wastes

                                                            California
                                                            list wastes

                                                            CERCLA/RCRA
                                                            corrective action
                                                            soil  and debris
                                                            contaminated with
                                                            solvent and dioxin
                                                            and California
                                                            list wastes

                                                            Scheduled wastes
                                                            (1st Third, 2nd
                                                            Third, and 3rd
                                                            Third wastes)
                                                 November 8, 1986


                                                 July 8, 1987


                                                 November 8, 1988
                                                 May 8, 1990

-------
&EPA
                         United States
                         Environmental Protection
                         Agency
                         Office of
                         Solid Waste and
                         Emergency Response
Directive: 9347.3-05FS
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 on-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.
                           Highlight 1: EXAMPLES OF AREAS OF
                           CONTAMINATION (AOCs)

                           »   A waste source (e.g., waste pitt landfill,
                               waste pile) and the surrounding
                               contaminated soli

                           •   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,
                               where the dikes are contaminated and the
                               lagoons share a common liner.

                           * The AOC does not include any contaminated surface
                           or ground water t&at may be associated with the iatid-
                           based waste source.

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   For on-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.
 HighRgM 2: PLACEMENT

 Placement does occur wheji wastes are:

..«    Consolidated from different
      AOCs into a single AQC;

 *    Moved outside of m AOC (fot
      treatment or storage, for
      example) and returned to the
      same or a different AOC; or

 *    Excavated from an AOC, placed
      in a separate unit, such as an
      incinerator or tank that is within
      thi& AQC, and redeposited iato
      thb same AOQ     [

 Placement does,not occur waen wastes
 are;.   ;    	    :

 *    Treated in $itu;

 «    Capped in place;

 •    Consolidated within the AOQ of

 *    Processed within, the AOC (but
      not in a separate unit, such as a
      tank) to improve its structural
      stability (e*g., for capping or to
      support lu&vy 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 HCRA solid waste* is hazardous if it is
                                                           listed OP exhibits a hazardous characteristic.

                                                           listed RCRA Hazardous Wastes

                                                                 My. waste listed in Subpart D of 40
                                                           CFR 261, including:

                                                                * . :    P waste  codes (Part 261.31)

                                                                * ;'  •   K waste codes (Part 26132)     :

                                                                *.     P waste  codes (Part 26i.33(e))   :

                                                                »•'- • 'f \-tJ waste codes (Part 2&L33(f)>  |


                                                           Characteristic SCRA Hazardous Wastes
                                                               Any waste exMbitbg one of the following
                                                                       st::^ defined in 4& CFK 261;     ••

                                                                        Ipitabih'ty

                                                                        Co«0$ivity

                                                                        Reactivity

                                                                        Extraction Procedure (EP)
                                                                        Toxicity      l
                                                           * A sofid waste ts any fnaterial that fe discarded or
                                                           disposed of fix., abandoned, rccyeted in certain ways, or
                                                                    frcan the defaiition (e^g,, 
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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 facih'ty.  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 tune (see Highlight 4), site managers
may need to determine what type of restriction  is in

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   Highlight 4: LDR STATUTORY DEADLINES
         Waste
 Statutory Deadline
   Spent Solvent and Dioicifl-
   Containing Wastes
   California Lisf Wastes
   Ftist Third Wastes
   Spent Solvent, Dioxin-
   Ointammg, and. California
   List Soil and Debris Frost
   CERCLA/RCRA Corrective
   Actions
   Second Third Wastes
   Third Third Wastes
   Newly Identified
   Wastes
 November 8,1986



July 8, 1987


 August 8,1988


 November 8, 1988
      8, 1989
 MayS,
Within 6 months of
 tdearifkation 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?
                                                                  LORs 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
                                       RCRA hazardous
                                       waste restricted
                                       under the LDRs?
                                    LDRs are not
                                      applicable
                                    LDRs are applicable
                                       requirements

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                                 United States
                                 Environmental Protection
                                 Agency
 Office of
 Solid Waste and
 Emergency Response
Directive: 9347 3-O6FS
July 1989
                                 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
   Highlight 1: SOIL AND DEBRIS

   SoU.    Soli is defined  as materials that are
   primarily  of geologic origin  such  as  sand, silt,
   loam, or clay,  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 tbal are
   primarily  aon-geologic in origin, such as  grass,
   trees, stumps,  and  man-made materials such as
   concrete, clothing, partially buried whoie 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).

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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 TreatabUity 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  TreatabUity  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 - mrOBMATIOS TO BE IBCUJDEB IH SHE DOCWEUTATJOB OP A SOIL ATO DE5RIS
                             VARIASOt 3* AH RI/FS REPORT Kft Of-SEtE AHD OEF-KCIE CXHOA BBSKHSE ACTtCBS
   OK-SITE

   •Description  o£ the Proposed Action t-e.a*,  ".Applying for an I#R Testability Vaxiance under 40 CFR.
   »A statement  of need and ju*ti£i<:«t±6h for the proposed actiott  (».£,:, -''data;- tfo -tvdifr iudiiate that full scale1 treatment
    can consistently attain the Ju0R treatment standards for ail waste areas, including; She- most contaminated are«s, at the
    site.")

   "A description  of the soil or debris waste {e.g.. information on the physical and chemical characteristics of the waste.
    including waste analysis  Seta) and description of the  source of the <: ant animation;

   • If frhe, coil and defar is *>»ste fees- been treated Ce.g...  treatability efc\idy)x «x surrogate data are available, a description
    of the treatment system d egsjipcoent used to obtain repr«Beut*tiv« s«rapie», « description of tne sample
   handlicg  and preparatioii.^atmiques.,  and a. description of tte QA/
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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.
   Highlight  3 - SAMPLE
   PROPOSED PLAN
                         LANGUAGE FOR THE
   Description of Alternatives section

    This alternative mil eompty with the LDR$ through
    a TreatabUity Variance under 40 CFR 2G8.44. This
    Variance will result in the toe qf{$peeijpte:chn0lQ}g$
    to  attain   the   Agency's   interim    "treatment
    levels/ranges" for the contaminated $oif at the site
    (see Detailed Analysis of Alternatives Chapter &/ the
    FS Report for the specific treatment levels far each
    constituent),     • ....................................

   Evaluation of Alternatives section, under "Compliance
   -with  ARARs"

    The LDBs are ARASs for {Enter number]  inanity's , Rql ,
                                            Section
    This Proposed Plan al$G seek* comment on the me
    of a Treatability Variance to campfy mth LDRs for
    each of the alternatives for vihlch one ti 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.
                                                               Higfeligfrt  4:    SAMPLE  LANGUAGE  FOR A
                                                               RECORD OF DECISION

                                                               Description of Alternatives seetloar

                                                               Became  existing and  available  data  do  not
                                                               demonstrate that the futk-scate operation of this
                                                               treatment technology can attain the LDR treatment
                                                               stoRftafds consistently for && soft, and debris wastes
                                                               fa be addressed by Ms action, this alternative wilt
                                                               Compfy  with  the LDJfe  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
                                                               {Mater technology} mil attain for each constituent
                                                               as determined by the indicated analyses are:
Barium
Mer&ay
Vanadium.
TCE
Cresots
                           &.I - 4Qppm (TCLP)
                     ft 0002 - &688ppm (TCLP)
                           &.2 - 22 ppm (TCLF}
                      95-99.9% reduction (TWA)
                              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.

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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
BOAT 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  BOAT  constituents  into  their
respective structuraJ/functionaJ 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 TREATABILITY VARIANCE LEVELS AND
                        TECHNOLOGIES FOR STRUCTURAL/FUNCTIONAL GROUPS
   Structural
   Functional
   Groups
Concentration
Rang*
(ppm)
Threshold
Concentration
(ppm)
Percent
Reduction
Range
Technologies that achieved
recommended effluent
concentration guidance**
Halogenated
Non-Polar
Aromatics
Dioxins
PCBs
Herbicides
Halogenated
Phenols
Halogenated
Aliphatics
Halogenated
Cyclics
Nitrated
Aromatics
Heterocyclics
Polynuclear
Aromatics
Other Polar
Organics
%S^!B!5EBSBSB8S8BB8HliBJpJ
liiiiiiiliiiSH
IjHfcgggBiiBSgJBIa^Bl

Arsenic
Barium
Chromium


Selenium
,.
vanadium
Cadmium
Lead

Mercury
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
O.S - 10

0.27-1
0.1 -40
0.5-6


0.005

U.2 - 22
0.2-2
0.1 -3

u.uuw - u.uua
100
0.5
100
0.2
400
40
200
10.000
200
400
100

10
400
120


0.08

200
40
300
——
0.06
90-999
90-99.9
90-99.9
90-99.9
90-99
96-98.9
90-99.9
99-99.99
90-99.9
95-99.9
90-99.9

90-99.9
90-99
95-99.9


90-99
*««* *w»
90-99
95-99.9
99-99.9
t*f* /SA
90-99
Biological Treatment Low Tamp. Stripping,
Soil Washing. Thermal Destruction
Deohtorinatton, Soil Washing. Thermal Destruction
Biological Treatment Dechtonnafion. So* Washing.
TrUM mol Destruction
Tnsfmal Destruction
Biological Treatment Low Temp. Stripping.
Soil Washing, Thermal Destruction
Biological Treatment Low Temp. Stripping. Sod Washing.
TherrnalDestructton
Thermal Destruction
Biological Treatment Son Washing
Thermal Destruction
Biological Treatment. Low Temp. Strfppng. Sort Washing.
Thermal Destruction
Biological Treatment Low Temp. Stripping. Soil Washing.
Thermal Destruction
Biological Treatment Low Temp. Stripping. Son Washing.
TnenrMy Dsstnjction
•..•••••H

Immobilization. Soil Washing
Immobilization
Immobilization. Soil Washing


Immobilization


Immobilization, Son Washing
ImmooiHzation. Sori Washing

mmoDuasoon
         *  TCLP also may be used when evaluating wast with nlativtfy low levels oforymia that have been treated through an immobilization
           process.
        ' *  Other Uchnotoffes may be used if notability studies or other information indicates that they can achieve the necessary concentration or
           percent-reduction range.

-------
    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

Evaluate
nature and
extent of *Ka
contamination




Identify
primary
contaminant*
of concern




management
alternative* for
the site




If they will result In significant
reduction* of toxtetty, mobility, or
volume of primary contaminant*




Select remedy
in ROD

   Concurrent
Determine which
".Wet* RCRA
hazardou* waste*
F
Compare Superfund
contaminant* of
concern wtth BDAT
Evaluate whether

tive Involve
MnlB_AM*«MV
 pUCwiflVffn
h
wffl attain LDR treatment
standards or  alternative
                                                                              established through a
                                                                              TreeteMWy Varlanoa
TraatabUtty
Varlanoa granted
when ROD 1*
elgned

-------
          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 P006 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:
                   Total Concentration
                       fine/kg)
                                                 TCLP
                                                          Total Concentration
                                                                         Constituent
Cadmium
Chromium
Cyanides
Lead
2,270 -
3,160 -
80 -
500 -
16,200
4,390
150
625
120 -
30 -
1 -
2 -
146
56
16
12.5
Nickel
Silver
Cresols
Arsenic
100
1
50
800 -
- 140
- 3
- 600
1,900
1 -

.25
3 -
6.5

- 4
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 (see Highlight 4):

           •   All 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:
          SITE AND CHOOSE ETTHER THE CONCENTRATION LEVEL RANGE OR PERCENT REDUCTION RANGE FOR EACH
          RESTRICTED CONSTITUENT.
               Constituent
                                 Site
                               Concentration
                        Threshold
                      Concentration
               Appropriate Range
       Concentration    PercentReduction
                         Range to be achieved
                         (compliance  analysts)
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 95-99.9 Percent Reduction (TCLP)
0.5 - 6 ppm (TCLP)
0.1 - 3 ppm (TCLP)
0.5 - 1 ppm (TCLP)
X 90-99.9 Percent Reduction (TCLP)
STEP 3:  IDENTIFY TREATMENT TECHNOLOGIES THAT MEET THE TREATMENT RANGES.

•       Highlight 5 hsts 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 organics 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
at Tomchy, Mobility, Volume?
                                                                               Meet LDR Treatment        Meet Treatability Variance
                                                          •Placement?'  Standards for  BOAT Constituents       Alternate Levels?
1  Low temperature stripping/
                Stabilization
2  Stabilization in mobile unit
3.  In-situ stabilization
4.  Capping in Place
             Yes
             Yes
              Yes (Mobility)
              No
Yes
Yes
No (LDRs not ARARs)
No (LDRs not ARARs)
No
 No (not for cresols)
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 criteria, 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.

-------
 A EPA
                          United States
                          Environmental Protection
                          Agency
                             Office of
                             Solid Waste and
                             Emergency Response
                            Superfund Publication:
                            9347.3-08FS
                            December 1989
    Superfund  LDR Guide #7
    Determining  When  Land  Disposal
    Restrictions  (LDRs)  Are Relevant
    and  Appropriate  to CERCLA
    Response Actions
    CERCLA Section 121(d)(2) specifies that on-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 "relevant and appropriate" to an on-site CERCLA response
 action. (See Superfund LDR Guide #5 for determining when LDRs are applicable to CERCLA response actions.)
 The guide also provides examples of when the LDRs are likely to be relevant and appropriate and when they are not.
 With respect to contaminated soil and  debris, EPA is undertaking  a rulemaking to establish specific LDRs; until this
 rulemaking is completed, EPA generally will not consider the LDRs to be relevant and appropriate for soil and debris
 contaminated with hazardous substances that are not RCRA restricted wastes. More detailed guidance on Superfund
 compliance with the LDRs is being  prepared by the Office of Solid Waste and  Emergency Response (OSWER).
 LDR   RELEVANT
 DETERMINATIONS
AND   APPROPRIATE
    For  on-site CERCLA responses  that  constitute
placement, and  for which the LDRs have  been
determined not to be applicable (i.e., the wastes being
placed are not prohibited or restricted RCRA wastes),
site managers should evaluate whether the LDRs are
relevant  and  appropriate.   As  discussed  in  the
CERCLA Compliance with Other Laws Manual (EPA,
August 8, 1988), relevant and appropriate decisions
require best  professional  judgment  of site-specific
factors to determine whether a requirement addresses
problems  or  situations  sufficiently  similar  to  the
circumstances  of  the release,  or  remedial action
contemplated,  and  is well-suited  to  the  site,  and
therefore, is both relevant and appropriate.

    Section 300.400(g)(2) of the proposed NCP [53 FR
at  51436 (December 21,  1988)] outlines a number of
factors pertaining to CERCLA situations and potential
ARARs  which  should  be compared to  determine
whether   a  requirement  is  both   relevant  and
appropriate.  The four pertinent factors to compare
when  evaluating   the   potential  relevance  and
appropriateness of the LDRs are:  (1) the  action or
activities regulated by the requirement (e.g., placement
on the land) and the remedial action contemplated; (2)
the purpose of the requirement and the purpose of the
CERCLA action; (3) the substances regulated by the
requirement and the substances found at the CERCLA
site; and (4) the medium regulated or affected by the
requirement and the medium contaminated or affected
at the CERCLA site.  These factors are evaluated to
determine whether the circumstances  of the release
and remedial action contemplated are such that use of
the LDR requirements  is  well-suited  to CERCLA
response objectives.

    The evaluation of the circumstances of a release
is  conducted  as part  of the remedial  investigation,
during which information is collected on contaminant
sources, potential routes of  migration, and potential
human and environmental receptors of concern.  The
results of this effort (which is ultimately documented
in the site characterization and baseline risk assessment
chapters  of the RI/FS report) are used to establish
remedial action  objectives  for the areas  or  media
contaminated at the site that pose a threat to human
health and  the  environment.    The site-specific
CERCLA response objectives of the remedial action
contemplated should be compared with the purpose or
objectives of the LDRs as a first step in determining
the  potential  relevance and appropriateness of  the
LDRs [proposed NCP factors (a) and (e)].

    The objective  of  the  LDRs  is to  achieve
reductions  in the toxicity  and/or  mobility of  a

-------
 hazardous  waste,  based  on  application  of the best
 demonstrated available technology (BDAT), prior to its
 land disposal.   While  this  objective  will often  be
 compatible  with  remedial  alternatives  designed  to
. destroy highly concentrated, toxic, and mobile materials
 such as liquids, other remedial alternatives involving
 treatment of the principal threats of a site may have
 different  objectives to which  the LDRs are not well-
 suited.

     Once a decision  is made that achieving BDAT
 reductions in the  toxitity and/or  mobility of a  waste
 source is  compatible with CERCLA response objectives
 for the  site, site managers should utilize information on
 waste constituents and matrices collected as part of the
 site characterization to evaluate whether  a CERCLA
 waste is "sufficiently similar" to a  listed RCRA waste
 code or  family of  waste codes  (e.g.,  K048-K052,
 petroleum refining wastes) such that the LDR standard
'for  that waste code is appropriate for  the CERCLA
 waste.

     In  determining whether  a  CERCLA waste  is
 sufficiently  similar, site  managers  should  consider
 whether the BDAT  used to set  the  LDR standard
 would  be  effective  for   the   CERCLA  waste.
 (Technologies other than those used to  set the BDAT
 standards may be considered, although they must be
 regarded  as  capable of  meeting  the  promulgated
 :oncentration requirements.)  Although  a  constituent-
 by-constituent analysis is not necessary for relevant
 ind appropriate determinations, a general comparison
 if the  waste constituents and matrices is useful for
 dentifying waste codes to which a CERCLA waste may
 >e similar, and therefore, helpful in the identification
 )f   technologies  that  may  be   appropriate   for
 xmsideration.

    If a CERCLA waste that consists  of a complex
 nixture of several different wastes occurs in a different
 nedium (e.g., soil) or matrix (BDAT standards may be
 :stablished for specified matrices, such as wastewaters,
 lonwastewaters, or both) from what is specified  for a
 larticular   restricted   waste  code   or  contains
 ncompatible waste constituents, use of BDAT may not
 >e appropriate for that waste, and therefore, the LDRs
   NOTE:   If the LDRs are determined  to  be
   relevant  and  appropriate  requirements  for  a
   CERCLA action (i.e., there is  a close  match
   between the CERCLA and LDR objectives, and
   a close match between the constituents/matrix of
   the CERCLA waste and the constituents/matrix
   of the relevant RCRA  waste  code),  but the
   treatment process involved in the remedy does
   not  achieve  BDAT   levels  in   the  field  as
   anticipated, a Treatability Variance  establishing
   alternate treatment levels should  be  sought.
 would not be relevant and appropriate [proposed NCP
 factor (b)].    It  has  been  the  experience  of the
 Superfund  program that Treatability  Variances ar$,?
 frequently necessary for  soil and debris contaminated
 with a restricted RCRA waste  (see Superfund  LDR"
 Guide #6A), because the promulgated LDR standards
 are  based  on  treating less  complex  matrices  of_
 industrial process wastes. As a logical corollary to this,
 finding, the Agency believes that LDRs generally would
 not be "relevant and appropriate" requirements for soil
 and  debris  contaminated with  non-RCRA restricted
 wastes.   However,  the Agency plans to undertake a
 rulemaking that win prescribe applicable standards for
 the treatment of soil and  debris contaminated with
 RCRA-restricted wastes.  In the  future, these standards
 may be relevant and appropriate to  the treatment of
 soil and debris contaminated with non-restricted wastes.

     Examples illustrating the relevant and appropriate
 determination process follow:

 •    A number of drums containing hazardous wastes
     are  discovered  during   a  site  investigation.
     Although no written documentation or  specific
     knowledge of the  souice is  available to identify
     with  certainty the  origins of  the  wastes,  the
     laboratory analyses indicate that they contain very
     high  concentrations of  a  predominantly liquid
     waste  indicative of industrial  waste  streams.
     Therefore, maximum  destruction  of  the  drum
     contents is established as  the  remedial action
     objective.  Due to the general  similarity of the
     bulk liquids  to the  spent  solvents listed in the
     F001-F005  waste   codes,   the  CERCLA  site
     manager determines that use of incineration  (one
     of the  BDAT identified in the solvent and dioxin
     rule for that family of waste codes)  would be
     technically suitable.  Therefore, the LDRs would
     be  relevant and  appropriate  for  an alternative
     involving  the  treatment  and  placement  of  the
     drummed waste.

•   A CERCLA  waste  mixture from  an unknown
    source is found to consist  of wastes similar  to
    F021 dioxin-containing wastes (i.e., they  contain
    constituents found  in  dioxin-containing  wastes)
    and  mercury.  Because use of incineration -- the
    BDAT for dioxin-containing wastes — would not
    be  compatible  with a  waste  also  containing
    mercury,  application of  the  LDR  treatment
    standards to this waste  mixture would  not be
    appropriate.  Therefore, the LDRs would not be
    relevant and appropriate to a CERCLA response
    involving the  placement  of this waste mixture.
    (Alternate  methods of treating the waste might
    still be  necessary to satisfy both the CERCLA
    statutory requirement to  utilize treatment to the
    maximum  extent practicable and  the program
    expectations that are outlined in  the  proposed
    NCP.)

-------
Appendix B

-------
COMPENDIUM OF CERCLA
 RESPONSE SELECTION
 GUIDANCE DOCUMENTS

        INDEX

-------
                                TABLE OF CONTENTS


Category - Subcateeorv                                    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.

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                          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), de minimis 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, OE and OWPE.  Exhibit VIII-1 summarizes the
RD/RA negotiation process.

The negotiation planning process begins with a Regional decision that there are
Potentially Responsible Parties (PRPs)  who are liable and financially 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 minim is 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
letters to them, unless special notice has been provided or waived as allowed under
                                         -1-

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section 122(a). 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-referra! package should be submitted to the Department of Justice (DOJ) (with
copies to OWPE and OE) 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
Remedial Action Plan or proposed or final 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, OE 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 AOC 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-

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                                       Exhibit VIII-1
                             RD/RA Negotiation Process
                                Decision to Pursue Negotiations
                                   Review PRP Search and
                                    Administrative Record
Fund-lead RD/RA
                                                                                 PRP
                                                                                Search
                                                                               Follow-up
                                                                               Activities
                                 Develop Negotiation Plan:
                                  Case status
                                  Cost recovery plan
                                  PRP search assessment
                                  Remedy selection plan and
                                  review
                                  Notify Trustees
                                  Special notice preparation
                                  CD preparation
                                  Prepare UAO (if appropriate)
                                  Negotiating positions
                                  Negotiation strategy
                                  Enforcement strategy and
                                  schedule
                                  Major milestone schedule
                                  Funding strategy
                                 Work with Steering Committee
                                                                             60-day Formal
                                                                           Negotiation Period
                                                                               (Consider
                                                                           Settlement Tools)
                                    Issue Special Notice
                                                                                60-day
                                                                               Extension
                                       Receive GFO
                                                                              Possible RA
                                                                               and AA,
                                                                               OSWER
                                                                              Extensions
                                      Finalize Settlement
               No Settlement
                                                                Partial Settlement
Enforcement Options:
                                                                        Enforcement Options
                                                                           (non-settlors)
                                                                      §106 UAO Carve Out
                                                                      Referral of §106 Litigation
                                                                      Cost Recovery (§107)
                                      Full Settlement
                                     Sign Consent Decree
§106 UAO
Fund Implementation
Referral of §106 Litigation
Cost Recovery (§107)

-------
Boles and        This section describes the roles and responsibilities of the RPMs, assistant Regional
Responsbiities    counsel, and representatives from OWPE, OE, 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
                 Remedial Action  Plan, responsiveness summary and ROD, as much of this work as
                 possible should be done before the Proposed Remedial Action 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
                 litigation 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 OE
                 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 Regional Coordinators who are well versed
                 on the various RD/RA settlement tools (e.g., mixed funding, de minimis) and 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 pre-referral litigation reports and draft consent
                 decrees, relating  to cases in RD/RA negotiations.   The Director, OWPE chairs the
                 Settlement Decision Committee (SDC) which is discussed later in this chapter and
                 OWPE's Settlement Expediter is available to assist the Regions in resolving issues
                 related to finalizing settlements.
                                        -3-

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    OE           OE is responsible for ensuring that negotiated settlements are consistent across the
    Responsibilities Regions with national policy for legal matters. OE attorneys have expertise in the legal
                  implications of RD/RA settlements.  OE attorneys may participate in any negotiations
                  where complex or nationally significant issues are anticipated, assist Regional counsel in
                  pre-referral matters and review referrals sent to DOJ. OE also reviews all consent
                  decrees resulting from settlements.  For non-delegated settlements, the AA, OE must
                  concur.  Whether or not the settlement is delegated, OE should be on the case
                  correspondence list and be supplied with relevant documents including pre-referral
                  litigation reports and consent decrees. In addition, OE 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 9260.5-02A, "Clarification of Delegations of Authority 14-14-A,
14-14-B, and 14-14-C Under CERCLA" (April 4,1990).

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).

OE, "CERCLA RD/RA Settlement Negotiations Checklist" (January  26,1988).
                        -5-

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A.  Regional
    Decision to
    Pursue
    RD/RA
    Negotiations
     Review PRP
     Search
B.   Negotiation
     Planning
     RD/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, OE, 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, especially with well established plans,
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-referral 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-

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                            Exhibit VIII-3
        Sample RD/RA Negotiation Planning Schedule
                                         Schedule With Respect
                                         To Planned Negotiation
                                                 Start Date
                                      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.
PRP Search Assessment
                                      Complete checklist 2 quarters prior to start
                                      date.
Request cost-recovery documentation
                                      At least 4 months prior to start date.
Decision to pursue negotiations
Final PRP search evaluation
Evaluate schedule in terms of STARS
commitments and construction season
Assess cost recovery case
                                      At least 3-1/2 months prior to start date.

                                      Initiate at least 1 quarter prior to start date.
Develop negotiation plan

Implement negotiation plan

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        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 Limitations (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,  non-
        viable parties, strength of evidence, appropriateness of deminimis and/or mixed
        funding settlement, 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 within  established timeframes.  These may include section 106(a)
        UAOs or judicial actions.

        Funding strategy  (RD and RA may  be separate) and schedule if case does not
        settle, including an analysis of State cost  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. A model CERCLA CD has been prepared (OSWER
             Directive 9835.16, "Draft Interim Final Model CERCLA RD/RA Consent Decree,
             November 13,1990). Exhibit VIII-4 presents the typical elements outlined in the model
             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
             consistent with the  NCP. Chapter XI, Site Completion/Deletion, contains more detailed
                                     -8-

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                  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).

                  Reooeners
                  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
    of States
    and Federal
    Natural
    Resources
    Trustees
D.  Special
    Notice
    Letters
    Contents
Section 121(f)(1) of CERCLA provides for notice to the State of negotiations. In
addition, section 122(j)(1) requires that if a release or threat of release at a site may
have resulted in damages to natural resources,  EPA must notify the appropriate Federal
or State trustees and provide them with  an opportunity to participate in the negotiations.
The RPM is responsible for notifying the State and both the Federal and State 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.

Section 122 of SARA authorizes EPA  to issue special notice letters (SNLs) to begin a
formal negotiation period with the PRPs. The primary purposes of the special notice
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.

The SNL should contain the following information:

       Notice of the potential liability  of the PRP

       The purpose of the SNL and the conditions of the negotiations moratorium
                                          -9-

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•      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," February 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 litigation report 60 days prior to issuing SNLs where settlement by
consent decree is anticipated.  A copy of this notification should be sent to OE 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 OE 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).

Cost 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
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
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                                        Exhibit VIII-4
                        Examples of Provisions in a Consent Decree
L      Background
II.      Jurisdiction
III.      Parties Bound
IV.     Definitions
V.     General Provisions
VI.     Performance of the Work by Settling Defendants
VII.    Additional Response Actions/Failure to Attain Performance Standard
VIII.    EPA Periodic Review to Assure Protection of Human Health and Environment (§121(c))
IX.     Quality Assurance, Sampling, and Data Analysis
X      Access
XI.     Reporting Requirements
XII.     Submissions Requiring Agency Approval
XIII.    Remedial Project Manager/Project Coordinators
XIV.   Assurance  of Ability to Complete  Work
XV.    Certification of Completion
XVI.   Endangerment and Emergency Response
XVII.   Reimbursement of Response Costs and Oversight Costs
XVIII.   Indemnification and Insurance
XIX    Force Majeure
XX.    Dispute Resolution
XXI.    Stipulated Penalties
XXII.   Covenants  Not to Sue by Plaintiffs

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                                      Exhibit VIII-4(2)
                        Examples of Provisions in a Consent Decree
XXIII.   Covenants by Settling Defendants
XXIV.  Effect of Settlement; Contribution Protection
XXV.   Access to Information
XXVI.  Retention of Records
XXVII.  Notices and Submissions
XXVIII.  Effective Date
XXIX.   Retention of Jurisdiction
XXX.   Appendices
XXXI.   Community Relations
XXXII.  Modification
XXXIII.  Lodging and Opportunity for Public Comment
XXXIV. Signatories/Service

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                   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 Remedial Action Plan and
     SNL          feasibility study 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 Remedial Action 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:

                         A statement  of the PRP's willingness to conduct  or finance the RD/RA that
                         is consistent with EPA's Proposed Remedial Action Plan or the ROD, if it
                                         -11-

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                     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 9834.1 OA, "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 willingness 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 de_
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(a) UAOs are a powerful management tool  to encourage parties that
are somewhat willing to settle but are delaying resolution of negotiations. More generally,
section  106(a) UAOs 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 PRPs. 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 by 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.
                                         -13-

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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 Certain. 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 Settlements

                         De minimis Settlements

                         NBARs
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                     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
                     context, substantial portion may be defined as a commitment by the PRPs to
                     undertake or finance a predominant portion of the total remedial action.
                                     -15-

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        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, OE, and DOJ.  Specific reporting and tracking information
concerning the site is also entered into CERCLIS/WasteLAN.

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.

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
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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/WasteLAN.

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.
The PDD 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 PDD.
                       -17-

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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.

       The percentage of the total costs to be paid by settlors is substantial, unless
       there are major liability or financial viability concerns.
                       -18-

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       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
guidance "Mixed Funding Methodology."

A g£ 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 ale
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 d£ 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

       De minimis 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
                       -19-

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       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 a file, minim is 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 by de minimis parties and the basis of those payments.
Necessary Information for Generator De Minimis Settlements
In practice, d£ 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:
       Good waste-in lists with non-viable shares identified
       Past and future costs identified, premiums developed
       Cfi minimis payment and remaining liability are appropriate.
Sites that do not make good candidates for dj minimis settlements include those where:
                       -20-

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        Poor volumetric or orphan share information is available
        Costs are highly uncertain
        Potential g!e_ minimis parties have not conferred with major parties and
        attempted to settle through them
•       Potential d£ mjnimis parties are not organized into one group
        Potential dfi minimis parties are uncooperative in negotiations
        There are no viable non-dfi 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-dfi 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
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.
                       -21-

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             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 122(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, £e_ Minimis Settlements Under Section 122(g)(1)(B) of CERCLA, and
             Settlements with Prospective Purchasers of Contaminated Property" (June 6,1989).

             OSWER Directive 9834.7-1 B, "Methodologies for Implementation of CERCLA Section
             122(g)(1)(A) De Minimis Waste Contributor Settlements" (December 20,1989).

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 NBAR 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.

             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


                                    -22-

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Settlement
Decision
Committee
(SDC)
AA
Review
Team
Finalizing
Settlement
       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, OE

       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 periodically to address  issues raised by members to the Director, OWPE. The
SDC will decide settlement cases where decisions create precedent that may be
transferrable to other cases.

The Assistant Administrator Review team provides policy direction on settlement
concepts.  The team is composed of the AA, OSWER, the AA, OE, and the 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.

In order to finalize a settlement within established timeframes it is important to negotiate
during the first 60  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.
                                    -23-

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              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(a) UAOs, especially with delayed effective dates, 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 (including the technical attachments, such as the Statement of
                     Work)

                     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, OE 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.

              For RD/RA settlements that are delegated to the Regions, the completed  referral
              package must be sent to DOJ, with a copy to OE 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 OE and OWPE with a copy to DOJ. OWPE provides concurrence
              and sends the referral package to OE.  The AA, OE 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
                                     -24-

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              EPA's responses before deciding whether to approve the settlement. Upon approval, the
              decree is entered as a final judgment of the court.

              Exhibit VIII-5 diagrams a suggested timeline for pre-referral negotiation procedures.

              Where OWPE and OE have a consultation role, the draft package should be submitted for
              review. 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
toNon-        Agency has several enforcement options. The Regions may issue a section 106(a) UAO
Settlors/      compelling the PRPs to implement the RD/RA. The Regions also may choose to litigate
Enforcement   the case under section 106 of CERCLA.  Section 106(a) UAOs generally precede section
Options       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        The Regional Administrator is authorized to issue section  106(a) UAOs to compel the
106(a)        PRPs to implement the RD/RA. PRPs have a strong incentive to comply, since sections
UAOs        106 and 107 authorize a court to assess penalties as well  as treble damages for non-
              compliance without sufficient cause. Section 106(a) UAOs require a showing of imminent
              and substantial endangerment.

              The Region should be prepared to issue a UAO if the PRPs fail to provide a good faith
              settlement  offer by the end of the first 60 days of the special  notice moratorium, or if it
              is clear that no settlement will be achieved in the negotiation timeframe allowed. In
              addition, unless an extension of the negotiation period beyond the 120 day moratorium is
              justified by  an agreement in principle and substantial progress in finalizing a consent
              decree, a planning goal should be to issue a UAO promptly after the 120 day moratorium
              expires.

              At site with an RD start planned for FY90 and no anticipated UAO, Regions must
              consult with HO and describe the reasons for not going forward  with a UAO.

              The issuance of unilateral orders must be considered before a Fund-financed response
              can proceed at a site. Unilateral orders are typically issued at the end of the special
              notice period if settlement is not reached at a site, an extension of negotiations is not
              warranted,  and the case meets statutory criteria and case specific considerations set
              forth in this guidance.
                                    -25-

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     Sectfon 106
     Litigation
    Fund
    Partial
    Settlements
K.  Post-
    Referral
    Actions by
    DOJ
In general, present owners and operators and viable past owner(s) and operator(s) of
the site at the time of disposal should be named as respondents. At a minimum, the
present owners and operators must provide access.  The Agency will also generally
consider naming parties who arranged for disposal or treatment of hazardous
substances.  When there are multiple PRPs, the Agency may consider the aggregate
volume (percentage of total) and aggregate financial viability of all the PRPs to be
named. When evaluating whether to name an individual PRP in an order, the PRP's
contribution to the site (volume and nature of substances), and financial viability should
be considered. The Agency should consider naming the largest manageable number of
parties. Relevant evidentiary concerns also must be considered when deciding which
PRPs to name in an order.  In addition, consideration should be given to whether potential
respondents will have a valid "sufficient cause" defense or a section 107(b) defense.
Parties who would clearly have a valid defense to an EPA action following the parties'
failure to comply should not be named in  the unilateral order.

The Regional Administrator may decide  to refer the case to  DOJ for section  106
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.

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:       $24,000
                         (for three quarters)

                         Referral development:      $15,000 for 106,106/107
                         (for three quarters)

                         Litigation support:         $20,000 for 106,106/107 Litigation
                         (for ongoing 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 and/or 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.  For example, RA
                  funding will first require ranking to determine eligibility and position in RA prioritization
                  queue. 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 and RA activities.  The availability of Fund money to
                  implement the RD and 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/WasteLAN. The planned start dates for
                  RD/RA negotiations are entered into CERCLIS/WasteLAN when the site schedule is
                  developed, and  are revised as necessary. RPMs are responsible for ensuring that an
                  accurate CERCLIS/WasteLAN Site Information Form (SIF)  is completed for RD/RA
                  negotiations. Exhibit VIII-6 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)
                  C.     Planned start/complete date (FYQ)
                  D.      Actual start/complete date (MM/DD/YY)
                  E      Planning Status  (STARS Target, P=Primary, A=Alternate)
                  F.      SCAP Note
                  G.     Enforcement Activity Outcome Code/Name (CD = Consent Decree)


                                        -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; system
       will automatically generate remedy name, sequence number is required
       before system will add record)
K.     Financial Requirements

       1.      Financial Type/Code Name (H = TES Work Assignment Amount
              (Tasked); W = Detasked)
       2      Financial Amount (Amount required for negotiations)
       3.      Financial Plan Date (FYQ)
       4.      Contract Vehicle (TES ## =Technical  Enforcement Support)
       5.      Budget Source (E=Enforcement)
       6.      Work Assignment Number (00,001)
       7.      Work Assignment Number
       a      Record  Date (MM/DD/YY)
       9.      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

       A UAO 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/STARS 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/STARS  flag  are targets for
                       -28-

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completion. RPMs should keep the negotiation schedules up-to-date, changing them as
site conditions change.

Both RD/RA negotiation completion and start dates are SCAP and STARS targets.
All judicial referrals to Headquarters seeking relief under section 106 are STARS and
SCAP  targets.
                      -29-

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                  IV.  POTENTIAL PROBLEMS/RESOLUTIONS

                  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.

A.   Poor         At large sites, interpersonal antagonisms can develop between the PRPs.  The RPM and
     Relationships  assistant Regional counsel should provide information to the PRPs to assist them in
     Among the    coalescing into a steering committee.  The RPM should also recommend the use of
     PRPs        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.

fi   Multiple       The specific language in the draft CD may cause numerous revisions to be made
     Revisions to   between the PRPs and the Agency.  The Agency's policy is that the strict negotiations
     Draft CD     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.

C.   Settling       In some situations, major contributors to a site may be reluctant to negotiate RD/RA
     with          settlement terms after some PRPs have settled early under de_ minimis provisions. The
     Majors        case team may be  able to avoid conflict with major parties by soliciting settlement
     Involved with  proposals from them prior to finalizing settlement terms with de. minimis PRPs.
     De Minimis    Additionally, the negotiation team  may find it beneficial to explain the following
     Settlements   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 dfi minimis settlors.

                          Monies from early g£ 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.
                                         -30-

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0.   Use of
     Public
     Relations
     Inadequate
     PRP
     Searches
F.   Late
    Challenges to
    Volumetric
    Ranking
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
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.

Many PRPs wait until EPA solicits a settlement to challenge or question  EPA's
volumetric ranking.  EPA should encourage the steering committee to set up a process for
early challenge or the Agency should set up one itself.
                       -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 9835.12, "Releasing Information to Potentially Responsible Parties at
             CERLA Sites" (March 1,1990).

             OSWER Directive 9834.10A, "Model Notice Letters" (February 7,1989).

             OSWER Directive 9833.0-1 A, "Guidance on CERCLA Section 106(a) Unilateral
             Administrative Orders for RD/RAs" (March 7, 1990).

             OSWER Directive 9833.0-2(b),  "Model Unilateral Administrative Order for Remedial
             Design and Remedial Action Under Section 106 of CERCLA" (March 30,1990).

             OSWER Directive 9835.16, "Draft Interim Final Model CERCLA RD/RA Consent Decree"
             (November 13,1990).

             OSWER Directive 9839.1, "Interim Guidelines for Preparing Non-binding Preliminary
             Allocations of Responsibility" (May 16,1987).

             OE, "Covenants Not to Sue Under SARA" (July 10,1987).

             OSWER Directive 9834.7, "Interim Guidance on Settlements with De Minimis Waste
             Contributors Under Section 122(g) of SARA" (June 19,1987).

             OSWER Directive 9834.7-1 B, "Methodologies for Implementation of CERCLA Section
             127(g)(1WA) De Minimis Waste Contributor Settlements" (December 20,  1989).

             OSWER Directive 9835.14, "Submittal of Ten Point Settlement Analyses for CERCLA
             Consent Decrees" (August 11,1989).

             OSWER Directive 9835.7, "Guidance on CERCLA Section 106 Judicial Actions"
             (February 24,1989).

             OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving
             Municipalities and Municipal Wastes" (December 6,1989).
                                   -32-

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             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).

             OSWER Directive 9012.10-a, "Revision of CERCLA Civil Judicial Settlement Authorities
             Under Delegations 14-13 B and 14-14 E (June 17,1988).

             OSWER Directive 9012.10-1, "Clarification of Delegations of Authority 14-14-A, 14-14-B,
             and 14-14-C Under CERCLA" (April 4,1990).

Memoranda   OE, "Draft CERCLA RD/RA Settlement Negotiations Checklist" ( January 26, 1988).

             OE/OSWER, "Pre-Referral Negotiation Procedures for Superfund Enforcement Cases"
             (October 12,1990).

             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 106(b) of
             CERCLA" (June 12,1987).

             OWPE, "Draft Mixed Funding Methodology" (forthcoming).

             OSWER Directive 9891.6, "Multi-Media Settlements of Enforcement Claims" (February 6,
             1990).

             OSWER Directive 9225.1 -01, "Procurement Under Preauthorization and Mixed Funding"
             (April 19,1989).

             OSWER Directive 9225.1-04, "Regional Guidance Manual for the Response Claims
             Process -- Preauthorization PRP  RD/RA" (March 1990).

Contacts     OWPE, CERCLA Enforcement Division, Compliance Branch, (FTS) 398-8404.

             OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch,
             (FTS) 382-4826.

             OE, Deputy Associate Enforcement Counsel (202) 382-5324.

Training      OWPE, CERCLA Enforcement Division, Contracts and Planning Branch offers periodic
             settlement tools training. For further information contact  FTS 398-8661.
                                  -33-

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VI. ACTIVITIES CHECKLIST
OE has developed a CERCLA RD/RA Negotiations Checklist (January 26,1988), which
is included in this chapter as an appendix.
                      -34-

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Appendix

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                                                    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 thrrs  fcde:il PRPs?   If so have they been
               notiij.c;u.   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
               fe.a..  does  the  case present innocent landowner
               issues  or transporter issues — is there evidence
               that the transporter selected the site)?

          3.    Based on #  l  and  # 2,  are we focusing our efforts
               on  the  PRPs  from  whom we are likely to get the
               best settlement  fi.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 -

                    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),

                    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.   PRPs' 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?

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                          -  3 -
     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(g)f4I 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 (NBAR). 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?

     J.   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 DOT 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

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                              - 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
       Overview	2
       Responsblities	2
       PRPs	3
              RD Professional	3
              RA Constructor	3
              DAT.	4
       EPA	4
              RPM	4
              Oversight Advisor	5

I      PTOCEDURESAhD INTERACTED	7

       A.     Define Remedial Design Approach	7
       B.     Perform Standard Design Tasks	7
              Design Investigation	7
              Design Support	7
              Plans and Specifications	8
              Construction Schedule	8
       C.     EPARD Review	8
              Review RD Professional Qualifications	8
              Review RD Work Plan	8
              Preliminary Design Review	9
              Intermediate Design Review	10
              Pre-Final/Final Design Review	10
       D.     Community Relations Activities	10
       E     Initiate Remedial  Action Oversight	10
              EPA Pre-RA Review	10
              Review RA  Work Plan	11
              Review RA Constructor Qualifications	11
              Review IQAT Qualifications	11
              Review  Construction  QA/QC Plans	12
       F.     Hold Preconstruction Conference	12
       G.     Implement Remedial Action	12
              PRM Role/Responsibilities	13
              Oversight Advisor Role/Responsibilities	13
              Responding to Immediate Danger or an Emergency	13
       H.     Pre-Final/Final Inspection	13
       I       Prepare Project Closeout Report	14

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E      PLANNNG AND REPORTING REQUIREMENTS	15

       A.     SCAP/STARS	15
              SIF Instructions for RD/RA Implementation	15
              Remedial Design Activities	16
              Remedial Action Activities	16

IV.     POTENTIAL  PROBLEMS/RESOLUTIONS	18

       A.     Oversight	18
       B.     Incentives for Successful Performance	18
       C.     Corrective  Actions	18
       D.     SiteAocess.	19

V.     REFERENCES	21

       Policy	21
       Guidance	21
       Manuals	21
       Contacts	21
       Training	22

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                                   RD/RA IMPLEMENTATION


                  I.  DESCRIPTION OF ACTIVITY
Introduction        EPA conducts oversight of actions taken by PRPs when the response is taken pursuant to
                  an EPA order or consent decree to ensure a response is conducted consistent with the NCP
                  (See NCP Section 300.400(h)). The objectives of PRP oversight by EPA are to ensure that
                  selected remedies being conducted by the PRP are protective of public health and the
                  environment, and in compliance with the settlement agreement.

                  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.

                  A focused approach to PRP  oversight that will assist RPMs in concentrating their efforts on
                  the most significant aspects of the projects is recommended. The successful implementation
                  of the focused approach consists  of two steps. First, the RPM must focus on certain key
                  documents developed throughout the design and construction of the remedy such as the  RD
                  and RA Work Plans, project schedules, preliminary design, final design, Construction Quality
                  Assurance (QA) and Quality  Control (QC) Plans, and the Contingency Plan. The second
                  step is the utilization of an Independent Quality Assurance Team (IQAT) during construction.
                  The focused approach will allow RPMs to utilize their oversight activities in a more efficient
                  manner, enabling them to more effectively monitor PRP activities.  The ultimate goal of PRP
                  oversight is to hold PRPs responsible and accountable for the remedial action.

                  EPA has developed a separate guidance for overseeing RDs and RAs conducted by PRPs,
                  entitled "Guidance on EPA Oversight of RDs and RAs Performed by PRPs," April 1990,
                  EPA/540/G-90/001.  Also, draft guidance entitled "Model Statements of Work for  RD/RAs
                  for use with  settlement agreements and for Oversight of RD/RAs"  has been  prepared by
                  OERR/HSCD in May 1990, and should be finalized by early Spring 1991.  Additional detail on
                  RD/RA implementation is provided in these guidance reports. Certain methods have also
                  been explored to expedite remedial design and remedial action so that cleanup activities can
                                              -1-

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                  be completed more quickly; these are addressed in OSWER Directive 9355.5-02, "Guidance on
                  Expediting Remedial Design and Remedial Action" (August 1990).

Overview         When PRPs elect to conduct RD/RA activities at a Superfund site, they must do so in
                  accordance with the terms of the negotiated settlement agreement (either an administrative
                  order on consent or a judicial consent decree) per Section 122 of CERCLA. Subsequently,
                  PRPs and their agents are responsible for the adequacy of the design and the implementation
                  of remedies specified. During an enforcement lead cleanup, the primary function of EPA is to
                  ensure PRPs comply with all applicable laws, regulations, and requirements, and meet all
                  performance standards specified in the settlement agreement.

                  EPA has two objectives for overseeing PRP conducted RD/RAs on enforcement lead
                  cleanups:

                         Ensure the remedies are protective of public health and the environment throughout
                         the life of the project; and

                  •       Ensure the RA is implemented in compliance with the terms of the settlement
                         agreement.

                  The intent of the oversight program  is to focus EPA efforts  on the most significant aspects
                  of the  project, such as overall QA, scheduling, major changes due to changed field conditions,
                  emergency actions, and project close out. EPA may use a high level of oversight at the
                  onset  of the RD and again when the RA is initiated. The amount of oversight effort may be
                  increased or decreased over time, depending on the capabilities of the PRPs1 design and
                  construction teams, the  implementation of a construction QA program, the nature of the
                  technology selected, and the provisions  of the settlement agreement. The oversight must
                  always be structured so the PRPs, not EPA, remain legally responsible and accountable for
                  the success of the response action.

                  This enforcement approach not only conserves Fund resources, it also frees EPA personnel
                  to work on other sites.  The focused approach will formalize the requirement for  PRPs to
                  implement a construction QA program.  This is consistent with standard industry
                  construction practice.  In addition to reducing the duplication of QA activities, this will
                  maintain the burden of QA accountability with the PRP.

                  Because each Superfund site and RD/RA is unique, there are several  acceptable variations
                  of a PRP's organizational structure to implement the RD/RA. Regardless of the PRP
                  organizational structure, however, it  is the ultimate responsibility of the PRP to successfully
                  implement the remedy under the terms of the settlement agreement.

                  Exhibit IX-1 presents a simple organizational chart illustrating the relationships in an
                  enforcement lead project in which the PRP conducts the  RD/RA.  There are a number of
                  organizations that could  be used for conducting the work,  and the best approach will depend
                  on the experience and preference of the  PRPs.

                  A "reporting relationship" as shown in Exhibit IX-1, is defined as a direct line responsibility in
                  which  one party, as an agent of the other or as a legal  requirement, is  compelled to report
                  the results of their work or observations.  The PRP has a "reporting relationship" with  EPA


                                               -2-

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                       Exhibit IX-1

Relationships Among Parties When RD/RA Is Performed By a PRP
 OVERSIGHT
 OFFICIAL(S)
INDEPENDENT
  QUALITY
 ASSURANCE
    TEAM
               EPA
     PRP
  REMEDIAL
   ACTION
CONSTRUCTOR
                REPORTING RELATIONSHIP
                LINES OF COMMUNICATION
  REMEDIAL
   DESIGN
PROFESSIONAL

-------
                  as a condition of the settlement agreement, while agents and contractors hired by the PRP
                  have a similar type of association with the PRP.  Where "lines of communication" are
                  indicated in Exhibit IX-1, it implies that an information exchange is highly desirable between
                  parties.  Such an exchange is usually necessary for a successful implementation of a
                  remedy, however, there is no legal requirement for such communication. The IQAT is used to
                  ensure compliance and provide unbiased QA monitoring of the RA.

                  The following paragraphs discuss particular roles and responsibilities of the PRP and EPA in
                  the implementation of an enforcement lead project in which the PRP does the RD/RA.

PRPs             The PRPs are legally responsible for complete site remediation as specified in the settlement
                  agreement. All work is done under the PRP's control and they are responsible for the long-
                  term performance of the remedy.  PRPs provide the necessary input to effect site
                  remediation, whether done with "in-house" resources, or through the use of hired contractors
                  and subcontractors. PRP responsibilities are apportioned among the RD Professional, the
                  RA Constructor, and the IQAT.

                  RD Professional

                  The primary function of the RD Professional, or design engineer, is to provide the PRP with a
                  set of plans and specifications for the proposed remediation that meets the requirements and
                  is within budget and on schedule.  The RD Professional may be an employee of the PRP or
                  may be a private consulting entity retained under a contractual relationship with the PRP.
                  Unless the RD Professional has a large and experience staff,  many projects are sufficiently
                  complex to require the design team to be supplemented with additional capabilities, i.e.,
                  geotechnical,  electrical, mechanical, or structural  engineers; filed surveyors, or other
                  specialized skills.  These specialists  may subcontract with the RD Professional or contract
                  directly with the PRP.

                  In addition to the above responsibilities, the RD Professional usually will be required to provide
                  a Resident Engineer to act as the PRP's agent on the site during construction.  In some
                  situations the  Resident Engineer may be hired directly by the PRP.  In either case, this person
                  is one of the most critical in establishing  and maintaining construction quality on the site.
                  Typically the Resident Engineer is required to review progress and shop-drawing submittal
                  schedules; prepare periodic progress reports; make recommendations concerning major
                  inspections and tests; draft change orders, field orders, and work directive changes; conduct
                  the pre-final and final inspection of completed work with PRP, RA Constructor, EPA, and
                  other agencies; prepare a Project Closeout Report that certifies the completed project has
                  been constructed in accordance with the settlement agreement and that all performance
                  standards have been met; and determine that certificates, operation and maintenance
                  (O&M) manuals, and other required data have been assembled by the RA  Constructor.

                  RA Constructor

                  An RA Constructor's primary responsibility in constructing the RA is to meet the quality
                  standards specified by the design and accepted trade practices. They are responsible to the
                  PRP for  implementing and  maintaining the Quality Control (QC) program.  The RA
                  Constructor will obtain all necessary  permits and approvals as required  by the RA activities;
                  construct the project according to the plans and specifications by supervising and controlling


                                               -3-

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                  the execution of work, including means, methods and sequences of construction; and maintain
                  "Record Drawings" at the site, properly noting all changes made during construction. The RA
                  Constructor also will implement and maintain a construction QC program, identify and report
                  problems, provide qualified testing to demonstrate that proposed materials and equipment are
                  acceptable, and respond constructively to QC issues.

                  10 AT

                  Quality is conformance to properly developed requirements. In the case of construction
                  contracts, these requirements are established by the contract specifications and drawings.
                  QA is planned and systematic actions by the PRP to provide confidence that the completed
                  remedy meets these requirements. The IQAT is used to provide this level of confidence to
                  the PRP by testing and inspecting the work of the RA Constructor. QC is the system used
                  by the RA Constructor to manage, control, and document the compliance with requirements
                  of all RA  activities. This includes not only activities of the parent firm, but also those of
                  suppliers  and subcontractors.

                  The IQAT includes representatives from testing and inspection organizations, independent of
                  the constructor, that are responsible for examining and testing  various materials,
                  procedures, and equipment during the construction. Since the PRP is responsible for the QA
                  of the remedy, the IQAT is retained  by the PRP.  The IQAT are either employees of the
                  PRP, or are working for the  PRP through a contractual arrangement, and therefore have no
                  legal means for responding to EPA direction. Any direction regarding the IQAT will come from
                  the PRP.  EPA should raise  issues regarding the performance of the IQAT directly with the
                  PRP.

                  The qualifications and expertise of the personnel should be commensurate with the scope of
                  the project.  Typical functions of the  IQAT include reviewing design criteria, plans, and
                  specifications for clarity and completeness; directing and performing observations and tests
                  for QA  inspection  activities; verifying that the Construction QC  Plan is implemented in
                  accordance with the site-specific Construction QA Plan; performing independent on-site
                  inspections of the work to assess compliance with design criteria, plans and specifications;
                  and reporting to the PRP and EPA the results of all inspections and corrective actions,
                  including  work that is not of acceptable quality or that fails  to meet the specified design
                  requirements.

EPA              EPA is  responsible for protecting the public health and the environment and ensuring that the
                  PRPs comply with the terms of the settlement agreement.  EPA monitors compliance of the
                  PRP  in their implementation  of the remedy.  The most successful way for EPA to do this is
                  to vest  responsibility for the project in a single individual within EPA, the RPM. The RPM
                  usually hires an oversight official to assist EPA in overseeing PRP-lead RD/RAs.

                  RPM

                  The RPM is the Federal official designated by EPA to coordinate, monitor, or manage
                  remedial activities. EPA's role in RD/RAs performed by PRPs is to ensure that the remedy
                  complies with the ROD and the settlement agreement. The RPM should manage, coordinate
                  and monitor PRP activities with  the support of Oversight Advisors, and be technically
                                               -4-

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competent to ascertain compliance by the PRP and the PRP's staff and consultants with the
settlement agreement and the ROD.

The RPM may exercise a high level of oversight at the onset of the project. As the PRP
demonstrates competence in implementing the remedy, the amount of oversight may be
relaxed accordingly. The oversight program must focus the RPM's efforts on the most
significant aspects of the project, such as overall quality, scheduling, major changes due to
changed field conditions, site safety, emergency actions, and project close-out.  This may
require site visits at appropriate milestones during execution of the project.

However, active participation in the design and construction of the remedy by the RPM or
the Oversight Advisors is generally inappropriate to the EPA oversight role and authority.
RPMs and/or Oversight Advisors should not serve as technical experts for technologies or
methods required to  implement the remedy. RPMs who serve in such a role, or who give
direction to PRP employees or consultants, could undermine and compromise the oversight
relationship between EPA and the PRP, and shift some the responsibility for the success of
the remedy to EPA.  EPA should not be both a player and a referee in  PRP lead projects.

At a minimum,  the RPM should review and approve the PRPs' RD/RA Work Plans,
preliminary and final design, Construction QA and Construction QC Plans, Contingency
Plan, and Project Closeout Report. It should be understood that the term "EPA Approval"
should in no way warrant that the technology is sanctioned by EPA as technically
acceptable or will work from a technical view. The term may be defined in the settlement
agreement as meaning an administrative approval which simply allows the PRP to proceed
to the next step.  RPMs should defer to the advice of Regional Counsel and the relevant
language in OSWER Directive 9835.16, "Draft Interim Model CERCLA RD/RA Consent
Decree" regarding the use of the term "EPA Approval".

Oversight Advisor

The RPM acquires technical assistance for performing oversight in monitoring PRP
compliance with the settlement agreement by engaging one or more Oversight Advisors
capable of providing support in all technical aspects of the RD and RA. The Oversight
Advisor is under some form of contractual or interagency  agreement with EPA and reports
directly to the RPM. The recommended options available for oversight support include
Alternative  Remedial Contract  Strategy (ARCS) contractors, the US Army Corps of
Engineers (USAGE), and the US Bureau of Reclamation (USER).

The responsibilities of an Oversight Advisor during RD may include assisting in reviewing the
professional qualifications of RD Professional, RA Constructor, and the IQAT; reviewing the
RD and RA Work Plans; and reviewing the RD submittals  to determine if they are protective
of the public health and  the environment, comply with the ROD, and will attain  the
performance criteria  specified in the settlement agreement.

During RA,  the Oversight Advisor reviews for compliance with the Construction QA Plans,
schedule, and the approved plans and specifications.  Construction oversight is limited to
observing construction and comparing the work to a set of standards (in this case, the design
plans and specifications, and the Construction  QC Plan prepared  by the PRP's RA
                             -5-

-------
Constructor). The Oversight Advisor also conducts spot checks of the IQATs activities
and reviews QA reports. The results of all RA oversight activities are reported to the RPM.
                             -6-

-------
A.   Define
     Remedial
     Design
     Approach
B.   Perform
     Standard
     Design
     Tasks
     Design
     Investigation
     Design
     Support
II. PROCEDURES AND INTERACTIONS

The  RD establishes the general size, scope, and character of a project.  It details and
addresses the technical requirements of the RA. RD begins with preliminary design and ends
with  the completion of a detailed set of engineering plans and specifications.

There are two approaches to RD: performance-based and definitive.  In a performance-based
design, basic technical specifications are developed, containing the performance requirements
for the work.  The RD Professional focuses on defining criteria and process limits. It is the
RA Constructor's responsibility to implement a  remedial plan that achieves those technical
specifications.

In a  definitive design, information is provided on system  integration and on appropriate
equipment for each unit process. The designer chooses equipment, dimensions, controls, size,
shape, materials, and installation details.  The constructor builds to these definitive plans and
specifications.

In many situations, a mixed design approach is  used.  This often occurs for designs
incorporating an innovative or emerging technology for which there is relatively little
information available.  In this instance, the designer may use a performance specification for
the innovative technology and a definitive design for all other aspects.

Exhibit IX-2 presents a flow chart illustrating the RD process of the focused approach to
oversight. The  "diamonds" in the figure represent decision or review points that are the
RPM's responsibility and are considered critical to the quality and success of the project.

Before commencing RD, it is often  necessary to perform design related tasks (e.g., data
gathering and treatability studies).  In addition,  there are other activities required to be
performed during the actual design process to support the design (e.g., establishing design
criteria and a delivery strategy, value engineering study, and community relations).  The
following standard tasks are commonly required in a PRP performed RD, either as
prerequisites to the design or as part of the actual design.

It is  unlikely that all the data required for the RD was collected during the remedial
investigation and feasibility study (RI/FS) phase. Some RODs prescribe remedies contingent
on the results of additional testing or treatability studies. Additional field data  may need to be
collected and evaluated, including geotechnical investigations, groundwater sampling, and
surveys (property, utility, right-of-way, topographic).

During the initial preliminary design phase, concepts supporting the technical aspects of the
design are defined  in detail. Much of the information is based on the results of field data and
treatability studies that may have been completed since the RI/FS.

Besides the design criteria, which primarily address the project's technical issues, the
designer must devise a strategy for delivering the project.  This is the management approach
to carry out the  design and implement the RA.  It normally discusses the procurement method
and  contracting strategy, phasing alternatives,  health and  safety considerations, review
requirements, design schedule, contractor, labor, and equipment availability concerns, and
                                                -7-

-------
                  requirements for addressing sampling and data gathering methods (Field Sampling Plan), QA
                  considerations (Construction QA Plan), and air emissions and spill control requirements
                  (Contingency Plan).

    Plans and     The goal of RD is to produce a detailed set of engineering plans and specifications that are
    Specified-     consistent with the technical criteria established for the design. These documents present
    tions         the design information in the detail appropriate for the requirements of the project.

    Construction  A construction schedule is developed to identify major tasks, determine their duration, and
    Schedule      establish milestone dates. Key issues that may affect the schedule should also be identified.

C.  EPA RD      During RD, EPA monitors and reviews the performance of the PRP.  The Oversight Advisor
    Review       provides technical assistance to EPA in this process. An approval of any of the RD work
                  elements at any stage by EPA in no way guarantees the success or failure of the ultimate
                  remedy.  This is analogous to a city issuing a building permit to a developer for construction
                  of a building. The permit does not guarantee the building will be structurally sound, it merely
                  indicates compliance with the minimum design criteria and standards of the city for such
                  buildings. The soundness of the building's construction is still the complete responsibility of the
                  owner.  Similarly, EPA review and approval of a PRP's work plan or design  merely assesses
                  their acceptability with regard to RA goals  in accordance with the ROD and the settlement
                  agreement.  It does not warrant that the specified performance standards will  be met.

                  The PRP is responsible for selecting the RD Professional, subject to the approval of EPA.
                  Selecting a qualified designer with the training, experience, staff, and capabilities consistent
                  with the scope of work is an important step towards completing a quality constructed project.

                  The RPM, in conjunction with the Oversight Advisor, should review the qualifications of the
                  RD Professional. The resultant analysis is used to form the basis of the level of oversight
                  employed by EPA during the RD process. The settlement agreement may require the PRP to
                  submit the name and qualifications of an RD  "Supervising Contractor" to EPA for review
                  and approval.  If EPA disapproves this contractor submitted  by the PRP, the PRP would
                  submit a list of contractors acceptable to the PRP as "Supervising Contractor(s)" to EPA;
                  EPA would provide a written notice of the contractors it finds approvable, from which the
                  PRP may select. RPMs should defer to the advice of Regional Counsel and the relevant
                  language in EPA's  "Draft Model  CERCLA RD/RA Consent Decree" regarding EPA review of
                  the RD Professionals' qualifications.

    Review RD    The RD Work Plan is the first major deliverable and area of focus for the RPM and
    Work Plan     Oversight Advisor.  It is the PRP's interpretation of the settlement agreement and the
                  Statement of Work.  A thorough  review of the work plan is essential because it sets the
                  course for the PRP's implementation of the design portion of the RA.  The RD Work Plan
                  should be reviewed for its thoroughness and approach, and to ensure that it contains at least
                  the following items: tentative formation of the design team; a Health  and Safety Plan for
                  design activities; requirements for additional field data collection; requirements for treatability
                  studies; a schedule for completion of the design; design criteria and assumptions; and
                  tentative treatment schemes.
Review RD
Professional
Qualifica-
tions
                                               -8-

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           Exhibit IX-2
Remedial Design Oversight Process
PRP
I
1
1
RD/RA NEG
T :
SETTLEMENT
t 1
SELECT RD
PROFESSIONAL I
t
PREPARE RD WORK PLAN 	 i_

1
1
i
1
DATA
COLLECTION/TREATABILITY ^1
STUDY ,
t
PRFI IMINARY nF^lfnN
1
1
1
_ . i
t '
iMTrnyrniATr nr^inM ^

*
PRE-FINAL/FINAL DESIGN
INCLUDING: 1
• CONSTRUCTION QA PLAN ,
• CONTINGENCY PLAN '
t :
1



1
EPA OVERSIGHT OFFICIAL
~"~^n 1
ROD
t ]
OTIATIONS
I
f
AGREEMENT '
1
1
fc RFVIFW RD PROFESSIONAL QUALIFICATIONS

1
^ REVIEW RD WORK PLAN

NO / \ .
YES | |
1
-^^ Or-\/1C\A/ DDCI IhJllKIADV P^CCI^KI
~^^ HtvltW rntLIMINAHY UtoloN
NO / \. 1
YES 1
'
— ^b- DCI\/IC\A/ IMTCDfcjICr^lATC r\CCI/^M /^\DTIOKIAI \
^^ HtvltW IN 1 tnMbUIA 1 1 UtololN (Ur 1 lUNALj
1
«^ta> DC\/IC\A/ DDC CIKIA1 /CTIKIAI r\CCI/*^KI
^^^ ntvitW rnt*rllNAL7rlNAL UtololN
NO / ^\. 1
YES y^ |
1




-------
              The RPM and Oversight Advisor should use the results of this review and the evaluation of
              the RD Professional qualifications to establish the level of initial RD oversight as the designer
              begins the preliminary design.

Preliminary    The preliminary design review is the most critical technical review performed during RD
Design        oversight.  Since the preliminary design sets the pattern and direction of the entire design
Review       process, it is imperative that any deficiencies in the RA performance standards be identified.
              Furthermore, inconsistencies within the design itself must be identified and corrected before
              the PRPs proceed with the detailed design submissions. Based on the settlement agreement,
              EPA is required to review and approve this submission. The preliminary design submittal
              from the PRP should include the following elements: design criteria; project delivery strategy;
              results of treatability studies and additional field sampling; preliminary plans, drawings, and
              sketches; outline of required specifications; and preliminary construction schedule.

              In performing the preliminary design review,  the Oversight Advisor and the RPM use their
              professional training to assess the feasibility of the design to achieve the RA goals in
              accordance with the ROD and settlement agreement.  The Oversight Advisor makes a
              recommendation to the RPM based on the criteria listed below. The RPM is responsible for
              deciding whether the design is adequate and if enforcement action is necessary.

              Ultimately the settlement agreement and any document incorporated into the agreement set
              the performance criteria for the site.  The preliminary design review should evaluate the
              adequacy of the design with respect to all environmental and public health requirements. A
              review with respect to environmental criteria can be done by determining the feasibility of the
              design to meet the performance standards.  The preliminary design should be reviewed with
              consideration of the following: technical requirements of the ROD, settlement agreement, and
              ARARs; currently accepted environmental protection measures and technologies;  standard
              professional engineering practices; applicable statutes, EPA  policies, directives, and
              regulations; conformance with results of field data and treatability studies; reasonableness of
              estimated quantities of materials specified based on known data; and examination of the
              construction schedule for meeting project completion goals.

              The preliminary design review is limited to ensuring that the  design criteria and the delivery
              strategy are consistent with the design requirements of the selected remedy.  It should focus
              only on the  environmental aspects of the design.  The level of review should initially be limited
              to certain criteria, such as verifying that  appropriate unit processes are being employed by
              the treatment train; confirming that the removal or treatment efficiencies assumed are
              reasonable  for both the process and waste (concentration and volume); checking that
              process waste  streams are adequately identified and addressed, and that flow rates are
              appropriate; verifying that the proposed sizing of the process is appropriate and that any site
              abnormalities have been addressed; and spot checking some (about 10%) of the design
              calculations.

              The review  can  be expanded if any  of the above areas appear to be deficient.  Approval of
              the preliminary design only allows the  PRP to proceed to the next step of the design process.
              It does not imply acceptance of later design  submittals that have not been reviewed, or that
              the remedy, when constructed, will meet performance standards and be accepted.
                                           -9-

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     Pre-Final/
     Final Design
     Review
D.   Community
     Relations
     Activities
Intermediate   The intermediate design review is an optional review and would normally only be performed
Design        for larger, complex designs or when required by the settlement agreement. The design is
Review       reviewed to determine that comments from the preliminary design review have been
              incorporated.  If a value engineering study has been performed by the PRP, the intermediate
              design would typically reflect any design modifications resulting from this study. These
              changes must be evaluated for consistency with the ROD.

              The pre-final/final design submittals are reviewed for consistency with the ROD and
              settlement agreement. The final design submittal package from the PRP should include the
              following: final design plans and specifications; Operation and Maintenance (O&M) Plan; Field
              Sampling Plan (including a description of whether the performance  standards have been
              achieved by the RA); Construction QA Plan; and Contingency Plan.

              The pre-final/final design review is the last review of the RD and should be based upon the
              approved preliminary and intermediate design submittals. The Oversight Advisor and RPM
              assess the acceptability of the  final design submittals on the basis of the same
              considerations used for the preliminary design. The approval of the final design is acceptance
              that the project may proceed to the next step; i.e., community relations activities and
              preparation  of a RA Work Plan.

              At the conclusion of the  RD, the RPM often distributes to the community and other interested
              persons a fact sheet on the final engineering design. The fact sheet enables EPA to inform
              the public about activities related to the final design, including the schedule for implementing
              the RA, what the site will look like during construction, the roles of the PRP and EPA, the
              Contingency Plan, and any potential inconveniences such as excess traffic and noise.  The
              RPM should also provide an opportunity for a public briefing to be held near the site prior to
              initiation of the RA. A public briefing may be  necessary, and can serve to address issues
              such as construction schedules, changes in traffic patterns,  location of monitoring equipment,
              and the methods in which the public will be informed of progress at  the site.

              After completion of the RD, the RA begins, during which the actual implementation of the
              remedy occurs.  Exhibit IX-3 presents  a flow chart that illustrates the RA process of the
              focused approach to oversight.  As in Exhibit IX-2, the "diamonds" represent critical decision
              or review points required of the RPM.

              The RPM may use a high level of oversight at the onset of the RA as determined by
              requirements specified in the settlement agreement, the complexity of the remedy, past
              performance of the PRPs, the qualifications of the PRPs' design and construction teams
              (including the  IQAT) and any other relevant factors affecting the design and implementation
              of the RA.  The level of this oversight may then be adjusted accordingly as implementation
              proceeds based upon the actual performance of the RA Constructor. The objective of the
              oversight program is to focus the RPM efforts on the most  significant aspects of the project
              such as environmental protection, consideration of public health concerns, overall quality,
              scheduling,  major changes due  to changed field conditions, emergency actions, and project
              close-out.

EPA Pre-     During RA,  EPA monitors and  reviews the performance of the RA  Constructor in building  the
RA Review    project.  It is the PRP's responsibility to ensure the RA Constructor meets the quality
              standards specified by the design and  accepted trade practices. EPA, through the Oversight
£   Initiate
    Remedial
    Action
    Oversight
                                               -10-

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                             Exhibit IX-3
                Remedial Action Oversight Process
        PRP
EPA
   OVERSIGHT OFFICIAL
 PREPARE RA WORK PLAN
  REVIEW RA
PLAN
SELECT RA CONSTRUCTOR
& INDEPENDENT QA TEAM

                                     REVIEW QUALIFICATIONS
                                                   1
PREPARE CONSTRUCTION
      QC PLAN
                  ;PLAN
                                NO
                                    YES
PRE-CONSTRUCTION CONFERENCE
\
\
CONSTRUCTION
1 1
1 1
T
IMPLEMENT
CONSTRUCTION QA/QC
PLANS

|
i
\
^ 	 ^^ /"NX/rnci^uT

I I
PRE-FINAL / FINAL INSPECTION
L
CORRECT PUNCH LIST
1

I y*\ I
1 1 NO /PASS\ |
^. — — INSPECTION/
N< ? X^ '
1 YES \X |
r i i
PREPARE CLOSEOUT
REPORT
;
i ^ REVIEW CLOSEOUT REPORT

i i i
"S"-' yAOOC5r\\/AlV

INITIATE 0 & M
1 V1 ', "X I
1 .' YES\/ '
r> i

-------
              Advisor, monitors and reviews the work of the PRPs on the basis of defined applicable
              standards, in this case, approved design plans and specifications and the Construction QA
              and QC Plans.  It is inappropriate for the Oversight Advisor to direct or determine the means
              and methods of construction. Clearly defining these roles, and adhering to them, ensures that
              the responsibility and accountability of the construction project remains with the PRP.

Review RA    The RA Work Plan  is the basis for the PRP's approach to the implementation of the designed
Work Plan     RA.  The work plan may be a negotiated part of the settlement agreement or it may be a
              required submission under the agreement. As with the RD Work Plan, the RPM and
              Oversight Advisor should thoroughly review the  work plan to ensure that the PRP will use a
              sound approach to the RA.

              The RA Work Plan  should be reviewed to ensure that it includes tentative formulation of the
              RA Team, including the key personnel, descriptions of duties, and lines of authority in the
              management of the construction activities; description of the roles and relationships of the
              PRP, PRP Project Coordinator, Resident Engineer, IQAT, RD Professional, and RA
              Constructor; process for selection of the RA Constructor; schedule for the RA and the
              process to continuously update the project schedule; method to implement the Construction
              QA Plan, including  criteria and composition of the IQAT; a Health and Safety Plan for field
              construction activities; strategy for implementing the Contingency Plan; procedure for data
              collection during the RA to validate the completion of the project; and requirements for project
              closeout. As with the RD  Work Plan, the RPM and the Oversight Advisor will use this
              evaluation to assist in determining the initial level of oversight required for construction
              activities.

Review RA    The PRP is responsible for selecting the  RA Constructor, whether through a competitive
Constructor   bidding process or the assignment of PRP "in-house" resources. As may be required by the
Qualifica-     terms of the settlement agreement,  EPA  reviews and approves the selection of the PRPs'
tions          preferred RA Constructor using the following criteria for guidance: an evaluation of the
              professional and  ethical reputation as determined by inquiries with previous clients and other
              references; and the RA Constructors' previous experience  in, and demonstrated capabilities
              to perform, the type of construction activities to be implemented.  If EPA disapproves the
              contractor submitted by the PRP, the PRP would submit a list of contractors acceptable to
              the PRP as "Supervising Contractor(s)" to EPA; EPA would provide a written  notice of the
              contractors it finds approvable, from which the PRP may select.  RPMs should defer to the
              advice of Regional Counsel and the relevant language in EPA's" Draft Model CERCLA
              RD/RA Consent Decree" regarding EPA review  of the RA Professionals'  qualifications.  The
              RPM and the Oversight Advisor should use this  evaluation with the results of the review of
              the RA  Work Plan to assist in determining the initial level of oversight required for
              construction activities.

Review IQAT The IQAT is used to provide a level  of confidence to the PRP by selectively testing and
Qualifica-     inspecting the work of the  RA Constructor, and ensuring the Construction  QC Plan is being
tions          effectively implemented.  They may  be  separate consultants working for the  PRP under a
              contractual relationship or they might be "in-house" personnel assigned to the project; in either
              case the IQAT must be independent of  the constructor.  EPA reviews and approves the
              selection of the IQAT using the following criteria  for guidance: an evaluation of the
              professional and ethical reputation as determined by inquiries with previous clients and other
              references; the qualifications and expertise of the inspection personnel should be
                                          -11-

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                  commensurate with the scope of the project; and confirmation that the QA team is truly
                  independent and autonomous from the RA Constructor.
     Review
     Construction
     QA/QC
     Plans
F.   Hold
    Preconstruc-
    tton Con-
    ference
G.  Implement
    Remedial
    Action
If a PRP elects to use "in-house" resources to implement the RA, it is inappropriate for PRP
"in-house" personnel to also be used for QA. Since it is necessary for the QA Team be
completely independent of the constructor so the results of the QA are unbiased and
objective, in this situation EPA should insist on the use on an independent firm. In a small
minority of projects, the PRP may be unwilling to hire an IQAT and/or is not required to do
so under the terms of the settlement agreement. In these cases, EPA may decide to  hire an
IQAT or use its Oversight Advisors to ensure the project is constructed properly.

Construction QA/QC should be a requirement on all construction projects.  The RA
Constructor is responsible for all activities necessary to manage, control, and document
work so as to ensure compliance with the project requirements, i.e., plans and specifications.
The Construction QA Plan is normally prepared by the  RD Professional and is submitted
with the final design. It is the responsibility of the Resident Engineer to implement it through
the IQAT.  The use of the IQAT will  provide for an unbiased implementation of the
Construction QA Plan.  More information on this construction  QA/QC is provided in the
"Guidance on EPA Oversight of RD/RAs  Performed by PRP's".

The Oversight Advisor should assist the RPM in reviewing each of the above plans.  The
review should focus on determining that the Construction QC  Plan is consistent with  the
requirements of the plans and specifications, and that the Construction QA Plan ensures the
performance standards will be met.  The review should  examine the appropriateness and the
frequency of the tests and inspections identified in both  plans.  Reviewing the Construction
QA and QC  Plans will assist the Oversight Advisor in developing a strategy to spot check
the PRP's QA program.

The PRP will initiate a pre-construction conference prior to the start of construction on the
project. The participants would include representatives of all parties involved in the RA (e.g.,
RPM, Oversight Advisor, PRP, RD Professional,  IQAT, and RA Constructor).  The purpose
of this meeting is to establish relationships among all parties involved in  the RA
implementation. The agenda should  include items such as: introduction of the members of
each team; discussion of EPA's expectations for the project; review of general project scope
and requirements specified in the settlement agreement; review of the final Construction QA
and QC Plans; review of the project schedule; review of roles and responsibilities of all
parties; procedures to resolve disputes or misunderstandings during construction; review of
emergency actions and the Contingency Plan; and review of endpoint activities and
procedures for  project completion. The tone of this meeting will help the  RPM to determine
the level of oversight necessary for the project.

It is the RPM's responsibility to  monitor PRP compliance with the settlement agreement and
all documents and plans included therein by  incorporation or reference. The RPM uses all the
information and interactions to monitor PRP compliance and has the flexibility to adjust the
level of oversight as determined to be necessary.
                                               -12-

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H
PPM Role/   If it is determined that the PRP is failing to comply with the terms of the settlement
Responsibil-    agreement, the problem can be approached as follows: identify the problem and devise
ities          corrective actions that are consistent with the settlement agreement; document all contacts
              with the PRPs concerning the inadequacies of the implementation; discuss the proposed
              correction action with Regional management to ensure the RPM is maintaining a consistent
              Regional approach in overseeing the PRP's response activities; and contact the Office of
              Regional Counsel for advice on how to proceed in the event enforcement becomes necessary.

Oversight     The Oversight Advisor  reports to the RPM and supports the RPM in monitoring PRP
Advisor       compliance with the settlement agreement, the plans and specifications, and the Construction
Role/Re-      QA and QC Plans.  Responsibilities that the RPM may assign  to the Oversight Advisor
sponsibilities   include: attendance at the pre-construction conference,  progress briefings, and any other
              meetings as required; making on-site observations of the work in progress to determine if the
              work is generally proceeding in accordance with the plans and specifications, and the
              Construction QA and QC Plans.

              The Oversight Advisor is a representative of the EPA and does  rjfll have authority to
              authorize any deviation from the contract documents or assume any of the responsibilities of
              the constructor, subcontractor,  or their superintendents.  This includes advisement on or
              issuance of instruction concerning the constructor's techniques or performance of duties.

Responding    In the event any action during the performance of the remedial activities causes or threatens
to Immediate   a release which may present an immediate danger to the on-site construction  workers, the
Danger or an   PRP shall take actions in accordance with the Health and Safety Plan.  If there is a
Emergency    substantial danger to the off-site public health or environment, the Contingency Plan (see the
              Guidance on EPA Oversight of RD/RAs  Performed by  PRPs, for more information) shall be
              implemented.  This plan is written for the local affected  population. In either case, the EPA
              must be notified.

              During an emergency, the RPM and the Oversight Advisor should closely monitor the
              situation to determine that the Health  and Safety Plan and Contingency Plan are being
              implemented.  EPA does have the authority stop work on the site  if the conditions present an
              imminent and substantial endangerment to the public health or welfare or environment.

Pre-Final/     The PRP conducts the  pre-final and final inspection  of completed work with EPA, the
Final         Oversight Advisor, and other agencies with a jurisdictional interest in attendance (e.g., the
hspection     State). The purpose of the inspection is to determine if all aspects of the plans and
              specifications have been implemented at the site. If any items have not been completed  the
              PRP will develop a punch list which details the outstanding items still requiring completion or
              correction before acceptance of work. Acceptance of work may not be granted until the
              startup and operation of treatment systems.  This may also include a demonstration that
              performance standards have been met.

              The RPM  and the Oversight Advisor should  take careful notes of all corrective and extra
              work required to meet the requirements of the design plans and  specifications.  These notes
              should be carefully compared to the punch list developed by the  PRP.
                                               -13-

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              A final inspection should be conducted when all the items on the punch list have been
              completed. All items indicated as requiring correction on the punch list should be reinspected,
              and all tests that were originally unsatisfactory should be conducted again. A final punch list
              should be developed for any outstanding deficiencies still requiring correction.

Prepan       At the completion of the RA and correction of all punch list items, the PRP (usually the
Project        Resident Engineer) prepares a "Remedial Action Report" (Project Closeout Report) which
Ooseout      certifies  that all items contained in the settlement agreement and any incorporated
Report        documents (e.g., plans and specifications) have been completed. The report includes
              documentation (e.g., test results) substantiating that the performance standards have been
              met and also includes "Record Drawings" of the project. The Oversight Advisor reviews the
              Remedial Action Report and verifies that all changes and variations from the original
              contract  drawings have been made on "Record Drawings".

              The RPM then initiates the project completion and deletion process as described in
              Procedures for Completion and Deletion of National Priority List Sites". OSWER Directive
              9320.2-3A, EPA, April 1989, as updated December 29,1989 (OSWER Directive 9320.2-3B).
                                           -14-

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A.  SCAP/
    STARS
    SIF
    Instructions
    for RD/RA
    Implementa-
    tion
III. PLANNING AND REPORTING REQUIREMENTS

A new "category" to the NPL was added to the NPL, called the "Construction Completion"
Category. The category consists of a) sites awaiting deletion; b) sites awaiting deletion but
for which CERCLA section 121(c) requires reviews for the remedy no less often than five
years after initiation; and c) sites undergoing long-term remedial actions (LTRAs).  (See
NCP, Section 300.425(d)(6)).

RPMs must ensure that current information on RD/RA activities is entered into
CERCLIS/WasteLAN for the SCAP. This section discusses the planning and reporting
requirements for RD/RA activities.  Exhibit IX-4 sets forth the SCAP/STARS targets and
measures for RD/RA activities.  RPMs also are responsible for ensuring that an accurate
CERCLIS/WasteLAN 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 (02)
B.     Event (RA = Remedial Action)
C.     Lead (RP = Responsible Party)
D.     Plan start/complete date (FYQ)
E     Actual start/complete  date  (MM/DD/YY)
F.     Planning Status (STARS Target, P = Primary, A  = Alternate,  Q = Queue)
G.     SCAP Note
H.     Subevent  Type Code/Name (AC = Contract Award)
L      Plan start/complete date (FYQ)
J.     Actual start/complete  date  (MM/DD/YY)
K.     Takeover Flag  (See below)
L.     First Start Indicator
M.     First Complete  Indicator
N.     Event Qualifier (U = Unknown)
0.     Event NPL Indicator (Y/N)
P.     Financial Information

       1.     Financial Type  (P = Planned)
       2.     Budget Source (E = Enforcement)
       3.     Financial Amount
       4.     Financial Plan  Date (FYQ)
       5.     Financial Vehicle (TES## = Technical Enforcement Support)
       6.     Fund Priority Status (APR  = Approved, ALT = Alternate)
       7.     Financial Note

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.
                                             -15-

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Remedial
Design
Activities
Remedial
Action
Activities
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.
The completion date for an RA is the date the Regional Administrator provides written notice
to the appropriate party (EPA, State, or PRP) of EPA's acceptance of the completed RA.
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, and EV# = An event code
(C2111) followed by a sequence number to indicate which event was taken over that created
the new event record.
RDs are planned on a site-specific basis.  Initial schedules for RD are established when RI/FS
activities are initiated at the site. The RPM should ensure that these initial schedules are
updated in CERCLIS/WasteLAN as more accurate planning data become available.
There are four separate SCAP and STARS activities:
       First RD Start
       Subsequent RD Start
       Final RD Completion
       Subsequent RD Completion.
The CERCLIS/WasteLAN definitions of first, subsequent, and final RD starts are combined.
Remedial actions are planned on a site-specific basis and reported in CERCLIS/WasteLAN.
The Regions are responsible for identifying RA projects and associating planned obligations
with these sites.
Seven SCAP and STARS  activities are tracked:
       First RA Start
       Subsequent RA Start
       First RA Contract Award
       First RA Completion
       First RA Completion
       Subsequent RA Completion
       Final RA Completion.
                                          -16-

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            Exhibit IX-4
SCAP/STARS Targets and Measures for RD/RA
        SCAP/STARS Targets
ACTIVITIES
Remedial Design (RD) Starts (S/C-4)
First
Subsequent
RD Completion (S/C-5)
First RD Completion
Subsequent RD Completion
Remedial Action (RA) Start
First RA Start
Subsequent RA Start
Fund
PRP
Award of RA Contract (S/C-6)
First RA Contract Award
Subsequent RA Contract Award
RA Completions (S/C-7)
First RA Completion
Subsequent RA Completion
Final RA Completion
STARS
TARGET



X*







X*


X*



SCAP
TARGET

X
X

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
X
X
X
ANNUAL
TARGET

X
X
X
X
X

X
X
X
X
X
X
X
X
X
X
X
* The STARS target combines first, subsequent and final as a single target.
SCAP/STARS Measures

ACTIVITIES
RA On-Site Construction
STARS SCAP
REPORTING PLAN/REPORT QTRLY
X X

ANNUAL
X

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RA starts (first, subsequent, and final) are targeted on a combined program basis.  RA
completions and final RA completions also are targeted on a combined basis.
                            -17-

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                  IV. POTENTIAL PROBLEMS/RESOLUTIONS

A.  Oversight      For PRP-lead RD/RAs, the oversight funding is obtained from the remedial budget.  If the
                  RPM requires technical assistance in performing his/her oversight responsibilities, the
                  primary contract vehicle is ARCS. RPMs also should be aware that the Agency encourages
                  use of the U.S. Army Corps of Engineers for providing technical assistance. In addition, in-
                  house technical assistance is often available, which proves to be both cost-effective and
                  timely.  In addition to contractor support, EPA should assemble a peer review team
                  comprising various senior RPMs and specialty experts (i.e., wetlands expert to review
                  wetland issues). EPA also can seek technical advice through lAGs as vehicles to access
                  specialty experts from such organizations as the U.S. Fish and Wildlife Service, NOAA, and
                  Marine Fisheries.

ft  Incentives     To enhance a cooperative problem-solving approach for the PRP-lead RD/RA, the RPM
    for           should identify areas in which the PRP has achieved significant success  in remedying the
    Successful    problems caused by the hazardous substance release. RPMs could acknowledge these
    Performance  accomplishments by suggesting that Regional management either send a letter to the PRP or
                  provide public acknowledgment in the media (newspapers, television, or radio). Performance
                  incentives are effective and inexpensive support for the PRP to continue to achieve steady
                  RD/RA implementation progress.  Successful PRPs also provide other PRPs with models.

                  If the PRP sustains its outstanding performance resulting in steady RD/RA implementation
                  progress, the RPM may suggest that Regional management approve a more flexible EPA
                  oversight posture.

C.  Corrective    If the RPM determines that the PRP  is failing to comply with the terms of the consent
    Actions       decree, the RPM should generally approach the problem in a constructive manner.  The
                  RPM's first course of action is to:

                         Identify the problem and devise appropriate corrective action based on the terms
                         agreed to in the consent decree for addressing late or inadequate performance by the
                         PRPs

                         Document thoroughly all contacts with the PRPs concerning the inadequacies of their
                         implementation

                         Discuss the proposed corrective action with Regional management to determine
                         whether the RPM is maintaining a fair and consistent Regional approach in
                         overseeing the PRP's response activities

                         Contact ORC for advice  on how to proceed in the event enforcement becomes
                         necessary.

                  After determining whether the proposed corrective action is consistent with the Region's
                  approach, the RPM should initiate a discussion with the PRP to identify appropriate
                  corrective actions.  For example, the RPM could take any one of the following types of
                  corrective action:

                         Send a warning letter to the PRP describing the problem and the desired response
                                              -18-

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                         Hold a formal meeting with the PRP

                         Provide the PRP with additional guidance to clarify EPA requirements

                         Expand the level of EPA oversight by increasing the level of communications and
                         number of site visits.

                  If the corrective actions do not alter the PRP's performance and significant problems
                  continue to persist, then the RPM may advise the Regional Administrator to take one of the
                  following corrective measures:

                         Issue a Stop Work Order

                         Invoke stipulated penalties

                         Initiate administrative or judicial measures

                         Revert to Fund-lead RD/RA.

                  Before requesting the Regional  Administrator to impose these measures, the RPM must
                  thoroughly document the specific problems and the corrective actions attempted.

D.  Site          The PRP is responsible for obtaining the necessary site access.  Securing appropriate site
    Access       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
                                              -19-

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discussed below. For a more thorough discussion of site access, see OSWER Directive 9829.2
"Entry and Continued Access Under CERCLA" (June 5,1987).

The issue of site access may cause problems when some, but not all, PRPs agree to
implement RD/RA activities under EPA supervision.  The recent case of U.S. v. Murtha in
Region I illustrates this point.  The facts of the case are discussed below.

In Murtha. the Agency entered into a settlement agreement with 32 corporations alleged to
have generated hazardous waste. The terms of this agreement were embodied in a consent
decree.  It obligated the settling PRPs to implement the remedy chosen  by EPA for the site.

Most PRPs involved at the site were parties to the consent decree.  However, the owner of
the facility ("owner") failed to reach a settlement agreement with EPA.  While the owner did
not oppose EPA's right to access, the owner sought  to block the settling PRPs and their
contractors from entering the site to conduct the response activity because of his contention
that he would be liable for their negligence in carrying out the remedy. EPA brought suit
against the owner seeking an injunction requiring the owner to permit the settling PRPs to
enter the site.

The court decided that the owner of a facility does not have veto power over necessary
remedial actions. The court relied upon a broad interpretation of section 106(a) of CERCLA
to provide the authority for the settling PRPs to gain site access. The  court ruled that an
owner-in-possession of a facility cannot halt the remedial process merely because he did not
join in a settlement agreement with EPA.  The court issued an injunction granting EPA and
the settling PRPs full unrestricted access for the purpose of conducting response activities at
the site.

The Murtha case demonstrates how the problem of site access can be addressed where
section 104(e)  of CERCLA is not sufficient to provide what the Agency  needs. Section 106
of CERCLA grants the Agency authority to seek injunctive relief when a non-settling PRP
seeks to interfere with PRP-conducted remedial action when it is undertaken pursuant to a
consent decree.
                             -20-

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             V. REFERENCES

Policy        "National Oil and Hazardous Substance Pollution Contingency Plan", Preamble and Final Rule
             (40 CFR Part 300, Section 300.435) (March 8,1990).

Guidance     OSWER Directive 9320.2-3A, "Procedures for Completion and Deletion of Sites from the
             NPL" (April 1989), as updated December 29,1989 (OSWER Directive 9320.2-3B).

             OSWER Directive 9355.0-4A, "Superfund Remedial Design and Remedial Action Guidance"
             (June 1986).

             OSWER Directive 9355.1-02, "The RPM Primer:  An Introductory Guide to the Role and
             Responsibilities of the Superfund Remedial Project Manager" (September 1987).

             OSWER Directive 9355.5-01, "Guidance on EPA Oversight of Remedial Design and Remedial
             Actions Performed by Potentially Responsible Parties", Interim Final (April 1990).

             OSWER Directive 9355.5-02, "Guidance on Expediting Remedial Designs and Remedial
             Actions" (August 1990).

             OSWER Directive 9829.2, "Entry and Continued Access Under CERCLA" (June 5,1987).

             OSWER Directive 9835.4-2A, "Initiation of PRP-Financed  Remedial Design in Advance of
             Consent Decree Entry" (November 1988).

             American Society of Civil Engineers' publication entitled Quality in the Constructed Project:
             A Guideline for Owners. Designers and Constructors. Volume 1, Preliminary Edition for Trial
             Use and Comment, May 1988.

Manuals      OSWER Directive 9355.1-1, Superfund Federal-Lead Remedial Project Management Handbook
             (December 1986).

             OSWER Directive 9355.2-1, Superfund State-Lead Remedial Project Management Handbook
             (December 1986).

             OSWER Directive 9200.3-01 B, Superfund Comprehensive Accomplishments Plan (SCAP)
             Manual (updated annually).

Contacts     Technical Issues and Oversight
             Office of Emergency and Remedial Response (OERR), Hazardous Site Control Division
             (HSCD), Design and Construction  Management Branch (DCMB), FTS 308-8393.

             Access
             Office of Enforcement (OE) CERCLA  Branch, at FTS 382-3077.
                                        -21-

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Training      "Introduction to Remedial Design Schedule Management," course offered periodically by
             OERR.  For further information call FTS 398-8345.

             "Management of Construction in the Superfund Program," course offered periodically by
             OERR.  For further information call DD (303) 236-8330.
                                         -22-

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                OPERATION AND MAINTENANCE
I.    DESCRIPTION OF ACTIVITY	1

     Introduction	1

II.   PROCEDURES AND  INTERACTIONS	2

     A.    Settlement Negotiations	2
     B.    O&MPIan	2
     C.    O&MOversight	2

III.   PLANNING AND REPORTING REQUIREMENTS	3

IV.   POTENTIAL  PROBLEMS/RESOLUTIONS	4

     A.    SfateFunding	4
     B.    Transfer of Property	4
     C.    RA Restart	4

V.   REFERENCES	5

     Regulations	5
     Guidance	5
     Contads	5

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                           OPERATION AND  MAINTENANCE
                  I.  DESCRIPTION OF ACTIVITY

Production        Operation and Maintenance (O&M) can be defined as those activities required for
                  maintaining the effectiveness of response actions and/or monitoring site conditions to
                  determine the occurrence of a new or recurring environmental threat. O&M will generally
                  be required at sites where waste has been left on site.  O&M activities may include
                  periodic inspection and maintenance of waste containment measures, long-term air or
                  water monitoring, certain institutional controls, leachate collection and treatment or
                  disposal for source control measures, or any other periodic activity necessary to ensure
                  the continued protection of public health and the environment. O&M activities begin after
                  the remedy has achieved the RA objectives and remediation goals in the ROD or consent
                  decree, and is determined to be operational and functional. The guidelines and types of
                  activities required for O&M at enforcement sites are identical to those at remedial sites.

                  Activities required to treat ground water, including time required to achieve cleanup
                  goals, are not considered O&M.  Rather, these activities are defined as Long Term
                  Response Actions (LTRA). These activities are considered part of the Remedial Action
                  (RA) and will be continued until such time as cleanup goals are achieved and a close out
                  report is approved by the Regional Administrator.  O&M activities, however,  may still  be
                  required after this point in time.  In cases where Fund finances are used to  restore
                  contaminated ground water or surface water to a level  that assures protection of public
                  health and the environment, the NCP states that the operation of such activities shall be
                  considered part of the RA only for a period of up to 10 years following construction or
                  installation and commencement of operation.  Activities  required beyond the 10-year
                  period shall be considered O&M.

                  Fund resources shall not be used to perform O&M activities. At enforcement sites, O&M
                  may be conducted by the PRP, State, or other government entity (such as a county
                  government). EPA will not conduct or finance O&M activities at Fund-lead  or non-Fund-
                  lead sites.
                                          -1-

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A.  Settlement
    Negotiations
E  O&MPIan
C.  O&M
    Oversight
II.  PROCEDURES AND INTERACTIONS

It is essential that responsibility for O&M activities and oversight be addressed during
consent decree negotiations. A description of required O&M activities and projected
costs for the site should be available from the FS and/or the ROD. If not, it is the RPM's
responsibility to  clearly spell out the O&M activities and level of oversight that will be
required and the corresponding costs for use in negotiations. The determination of
responsibility for O&M and O&M oversight must be made prior to signing the CD and set
forth in the document.  Every effort should be made to have the PRP perform O&M.  If
the PRP will not perform the O&M, then the State should assume responsibility for these
activities.

During the Remedial Design (RD), a detailed O&M plan shall be prepared that clearly
defines the O&M activities required for the site and provides a detailed cost estimate.
This requirement should be clearly defined in the design statement of work (SOW). The
O&M plan may be amended during construction based on unexpected site conditions and
the actual characteristics of the implemented remedy.  These changes to the O&M plan
must be made prior to the approval of the close out report. Exhibit X-1 sets forth the
basic elements of an O&M plan. At sites where multiple operable units are implemented,
it is possible that each  operable unit will require a distinct O&M activity.  In this case, the
O&M activities for each operable unit will commence following completion of the RA
report for that activity and EPA's acceptance of the work, and will not rely on  an
approved close out report to signify the start of O&M.

Responsibility for oversight of O&M activities is set forth in the settlement document.  In
cases where the State is a signatory to the CD, the  State should assume responsibility
for oversight. In situations  where the State is a PRP, EPA may have O&M oversight
responsibilities.  The oversight agency must monitor the O&M activity for compliance
with the terms of the settlement document and the O&M plan.
                                          -2-

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                                        Exhibit X-1(1)

                   Basic Elements of an Operation and Maintenance Plan


A.      Description of Normal Operation and Maintenance

        1.      Description of tasks for operation
        2      Description of tasks for maintenance
        3.      Description of prescribed treatment of operating conditions
        4.      Schedule showing frequency of each O&M task

B.      Description of Potential Operation Problems

        1.      Description and analysis of potential operating problems
        2      Sources of information regarding problems
        3.      Common remedies

C.      Description of Routine Monitoring and Laboratory Testing

        1.      Description of monitoring tasks
        2      Description of required laboratory tests and their interpretation
        3.      Required QA/QC
        4.      Schedule of monitoring frequency and when, if so provided, to discontinue

D.      Description of Alternate O&M

        1.      Should systems fail, alternate procedures to prevent undue hazard
        2      Analysis of vulnerability and additional resource requirements should a failure occur

E      Safety  Plan

        1.      Description of precautions, necessary equipment, etc., for site personnel
        2      Safety tasks  required in event of systems failure (may be linked to site safety plan
               developed during remedial response)

F.      Description of Equipment

        1.      Equipment necessary for plan
        2      Installation of monitoring components
        3.      Maintenance  of site equipment
        4.      Replacement schedule for equipment and installed components

G.      Annual Budget (to be prepared by PRP or contractor performing O&M)

        1.      Cost of personnel
        2      Costs of preventive and corrective maintenance
        3.      Costs of equipment, supplies, etc.

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                                        Exhibit X-1 (2)

       4.      Costs of any contractual obligation (e.g., lab expenses)
       5.      Costs of operation (e.g., utilities, energy costs)

H.     Records and Reporting Mechanisms Required

       1.      Daily operating logs
       2      Laboratory records
       3.      Records for operating costs
       4.      Mechanism for reporting emergencies
       5.      Personnel and maintenance records
       6.      Monthly/annual  reports to State agencies

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III. PLANNING AND REPORTING REQUIREMENTS

RPMs are responsible for ensuring that an accurate CERCLIS/WasteLAN site
information form (SIF) is completed for each site in the O&M phase of response
activities.  Exhibit X-2 provides an example of a completed SIF for O&M.  The RPM
should complete the SIF using the following sample outline of fields and values.

A.     Operable Unit (01)
B.     Event Code/Name (OM = Operations and Maintenance)
C.     Lead (RP = Responsible Party)
D.     Plan start/complete  date (FYQ)
E     Actual start/complete  date  (MM/DD/YY)
F.     Planning Status (STARS Target, P = Primary, A = Alternate)
G.     SCAP Note
H.     Takeover Flag
I      First  Start
J.     First Complete
K.     Event Qualifier
L.     Event NPL Indicator (Y/N)
M.     Financial Information:

       1.      Financial Type (P = Planned Obligations)
       2      Budget Source (R = Remedial)
       3.      Financial Amount
       4.      Financial Plan Date (FYQ)
       5.      Financial Vehicle (CAG = Cooperative Agreement)
       6.      Funding Priority Status (APR = Approved, ALT = Alternate)
       7.      Financial Note.

Planning and reporting requirements are governed by the terms set forth in the
settlement document. Generally, cost documentation records must be maintained in
cases where preauthorization is part of the settlement, because  EPA will not pay O&M
costs. In some situations, EPA may pay partial "shake-down" costs for a period of one
year.  Shake-down costs are those costs associated with the implementation of O&M
activity.
                       -3-

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A.  State
    Furring
B.  Transfer of
    Property
C.  RA Restart
IV.  POTENTIAL PROBLEMS/RESOLUTIONS

RPMs should monitor the settlement negotiations closely to ensure that, in instances
where the State assumes O&M responsibility, the State can guarantee funding for the
duration of the O&M activities.  Since State funding for such activities is usually
appropriated yearly, the State's assurance may require special action by the State
legislature to guarantee funding. Some State statutes prohibit the use of public funds to
maintain private property.  In these cases, the PRP usually must assume responsibility
for O&M, or establish a trust fund or make other arrangements to provide the State the
money for O&M.  The Superfund branch of the Waste Management Division and Office
of Regional Counsel in Region IV have experience handling the State funding issues
discussed in this paragraph.

RPMs, in conjunction with Regional counsel, must ensure  that the settlement contains
provisions in the event that the property on which the site is located is sold. The
settlement decision must contain assurances for O&M conduct and financing in the event
the property is sold. Restrictions on the use of such property may be accomplished by
means of institutional controls.  Issues related to property transfer and O&M assurances
must be addressed on a site-specific basis by the Office of Regional Counsel.

In certain instances, it may be difficult to determine when site activity falls under  the
scope of  routine  O&M and when site activity actually represents the restart of removal
or remedial activity. For example, repairing a clay cap may be a routine measure
required to maintain the integrity of the remedy, or it  may be a removal action  required
to abate an immediate threat to human health, welfare, or the environment.

To prevent confusion between O&M  and the restart  of remedial activity, the settlement
document should contain a detailed description of what constitutes a failed remedy. The
settlement document also should contain very specific criteria for determining whether an
activity is part of  O&M or actual RA.  Resolution of this issue may be accomplished
through careful examination of the provisions of the settlement and site conditions by the
RPM, Regional counsel, the PRPs, and State technical personnel.
                                          -4-

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Regulations


Guidance
Contacts
V. REFERENCES

40 CFR, Part 300, "National Oil and Hazardous Substances Pollution Contingency Plan"
(March 8,1990).

OSWER Directive 9355.0-4A, "Superfund Remedial Design and Remedial Action
Guidance" (June 1986).

OSWER Directive 9355.0-26, "Additional Clarification on Funding Ground or Surface
Water Restoration Actions" (February 1989).

OSWER Directive 9320.2-03A, "Procedures for Completion and Deletion of National
Priorities  List Sites" (April 1989).

Office of Emergency and Remedial Response (OERR), Hazardous Site Control Division
(HSCD), Construction Management Branch, FTS 398-8336.
                                        -5-

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                     SITE  COMPLETION/DELETION
I.     DESCRIPTION OF ACTIVITY	1

      Introduction	1
      Types of Completions	1

II.    PROCEDURES  AND  INTERACTIONS	2

      A.    Site Completion Process: Site Close Out	2
            Preparing Close Out Report	2
            Technical Review Process for Close Out Report	3
      B.    Close Out Reports for Different Types of Response Actions	3
            Traditional Remedial Action	3
            LTRA Sites	3
            No Further Action Sites	4
            No Action Sites	4
            Removal Sites	4
            Anticipated Findings	4
      C.    Evaluation for NPL Site Deletion	5
      D.    Site Deletion Process	5
            Initiation Phase	6
                   State Consultation and Concurrence	6
                   Deletion Administrative Record (Deletion Docket)	6
                   Preparing the National and Local Notices of Intent to Delete	8
            Public Notice and Comment Phase	8
            Final Phase	8

III.    PLANNING AND REPORTING  REQUIREMENTS	10

IV.   POTENTIAL  PROBLEMS/RESOLUTIONS	11

      A.    Negative Public Responses	11
      B.    State Non-Concurrence	11
      C.    Waste Left On Site	11

V.    REFERENCES	12

      Policies	12
      Guidance	12
      Contacts	12

VI.    ACTIVITY CHECKLIST	13

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                         SITE COMPLETION/DELETION
                  I.  DESCRIPTION OF ACTIVITY

Mtoducfon        This chapter discusses the procedures an RPM follows when implementing the site
                  completion/NPL deletion process at a Superfund remedial site. Completions are
                  discussed in the first part of the chapter and the deletion process in the latter.  More
                  detailed information on site completions and NPL deletions can be found in OSWER
                  Directive 9320.2-03A, "Procedures for Completion and Deletion of Sites from the
                  National Priorities List (NPL)" (April 1989) and the subsequent "Update to the
                  Procedures Regarding the Performance of Five-Year Reviews,"  OSWER Directive
                  9320.2-3B (December 1989).

Types of          Following the successful implementation of all appropriate remedial actions at a
Ctampfefons       particular site, EPA Regional offices classify the site as either a "completion" (i.e., a
                  deletion candidate) or as a "long-term response action" (LTRA).

                  "Site completion" is defined as the point at which no further remedial action is
                  appropriate to protect public health and the environment. The following requirements
                  must be met before a site can be classified as a "completion":

                         Cleanup levels specified in the ROD have been achieved and all cleanup
                         actions identified in the ROD have been successfully implemented;

                         The site  is protective of human health and the environment across all
                         pathways of exposure;

                         The constructed remedy is operational and functional and performing
                         according to engineering design specifications; and

                         The only activities  remaining at the site are O&M activities to be provided or
                         performed  by the State or PRP.

                  LTRA is a response action  undertaken for the purpose of restoring ground or surface
                  water quality. These actions require a continuous period of on-site activity before
                  cleanup levels specified in the ROD or Action Memo are achieved. Following the
                  achievement of the goals set forth in the ROD, the site is classified as a "completion."
                  EPA Regional offices will identify sites as completions or LTRAs.

                  Both Headquarters and the State are given the opportunity to review and comment on
                  the decision before the site is officially entered into CERCLIS/WasteLAN as a completed
                  or LTRA site. Before the site is categorized  as an LTRA, the RPM must  ensure that an
                  Interim Close Out report (discussed in the following section) is completed and approved.
                  Completed  sites and LTRAs may be placed in separate categories on the NPL.
                                         -1-

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                  II. PROCEDURES AND INTERACTIONS

A.  Site           A close out report is prepared for every NPL site. The close out report describes how
    Completion     the site meets the technical and procedural completion requirements of Superfund sites.
    Process: Site  It is also used to support the Agency's intent to delete a site from the NPL For Federal-
    Ctose Out     lead and enforcement-lead sites, the close out report is prepared by the Region in
                  consultation with Headquarters staff.  For State-lead sites, close out reports may be
                  written by the State and are subject to EPA Regional approval.

                  Assembling the close out report does not require either a  large amount of time or effort.
                  Information used in compiling the close out report is readily available  from previous site
                  activities. To keep the close out report brief, the RPM should reference previous
                  technical documentation.

                  The close out report must be approved and signed by the  Regional Administrator.
                  Approval  of the close out report signifies the end of Superfund cleanup activities at the
                  site. However, State or PRP O&M activities continue as  long as necessary.

    Preparing      The report provides a brief technical determination that the conditions  of the site comply
    Close Out     with the ROD findings and design specifications and that activities performed at the site
    Report        are sufficient to achieve protection of public health and the environment.  The close out
                  report also identifies any outstanding issues that might be of continued concern to either
                  EPA or the involved community and explains why these issues do not preclude the site
                  from completion. The exact format  and contents of the close out report will vary
                  depending upon the specific site.  The Region should use its discretion in determining the
                  level of detail necessary in the report to demonstrate  the completion of activities at the
                  site. The close out report should be prepared by the RPM (or appropriate State
                  personnel) and should generally not exceed 10 to 15 pages in length.

                  The following components are addressed in the close out report:

                         Summary of site conditions

                         Demonstration of QA/QC on construction activities

                         Confirmatory sampling and performance monitoring results

                         Summary of  O&M activities

                  *      Assurance that protectiveness as specified in the ROD(s) has been
                         achieved and that no further Superfund response is appropriate in order
                         to protect human health  and the environment

                         Five-Year Review

                         Bibliography.
                                          -2-

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E  Close Out
    Reports for
    Different
    Types of
    Response
    Actions
Technical      The report receives peer review in the Region (or the State if the State drafted the
Review        close out report). After incorporating the revisions suggested by the peer review
Process for    process, the RPM submits the report to appropriate Headquarters and State staff for
Close Out      review and comment.  At the Headquarters level, OWPE, CERCLA Compliance Branch
Report         provides technical review of the report's content and conclusions for enforcement-lead
               sites.  The Regional Coordinator for Design and Construction Activities (Design and
               Construction Management Branch, Hazardous Site Control Division, OERR) will review
               the close out report for Fund-lead and State-lead remedial sites.  Regional coordinators
               within the Emergency Response Division, OERR will perform this role for removal sites.

               After revising the close out report to reflect appropriate technical comments received
               from both Headquarters and State staff, the report must be submitted to the Regional
               Administrator for approval. Although Regions have the discretion of allowing the State
               to make revisions if the State has initiated the report, only the Regional Administrator
               has the authority to approve the final close out report.  After the Regional Administrator
               signs and approves the close out report, the Region may begin to implement the site
               deletion process. Exhibit XI-1 illustrates the approval process for a close out report.

               A close out report is site-specific. Therefore,  the technical content and format for a
               report will vary from site to site. There are five different types of response actions:

               *   Traditional remedial action

               *   LTRA sites

               *   No further action  sites

               '   No action sites

               '   Removal sites.

               Following is a brief description of the general information that should be included in close
               out reports for the different classifications of response actions.

Traditional     The close out report is completed following the successful implementation of the final
Remedial       operable unit at the site. It replaces the Remedial Action report described in  OSWER
Action         Directive 9355.0-4A, "Superfund Remedial Design and Remedial Action Guidance"
               (June 1986). All confirmatory sampling and any assurance required to ensure that
               the remedy is operating as designed must be completed prior to approval of the close
               out report.

LTRA Sites    An Interim close out report is required before any site can be classified as LTRA.  The
               data presented in the  report determines whether the site will be placed in the LTRA
               category on the NPL.  The close out report must:

                      Demonstrate that  construction activities at the site have been completed

                      Provide a description of long-term actions to be conducted
                                          -3-

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No Further
Action Sites
No Action
Sites
Removal
Sites
Anticipated
Findings
       Identify the contaminant levels to be achieved

       Identify any five-year review responsibilities.

LIRA sites require the continuation of remedial response actions. Therefore, the Interim
close out report must be amended by the RPM to reflect the achievement of contaminant
goals when LIRA activities are complete. The amended close out report describes
monitoring results and specifies the type of continued O&M measures necessary to
ensure protection of both public health and the environment.

No further action sites include sites where expedited response actions or removal actions
have been performed and the final operable unit ROD determines no additional cleanup
activities are required to achieve protectiveness of public health and the environment.
Many of the components of the close out report will have been addressed in the ROD (as
part of the justification for no further action).  Therefore, the RPM may reference any
pertinent  information contained in the ROD to satisfy the requirements of a close out
report.

Where the results of the remedial investigation indicate that no action is necessary, the
close out report will be abbreviated, as components of the  report pertaining to cleanup
activities  are not relevant.  However, components of the ROD'S justification for no action
can be incorporated into the close out report.  The RPM should reference any pertinent
information contained in the ROD to satisfy the requirements of a close out report.

At some sites, it may be possible to use removal authority to complete activity at the
site.  Since neither an RI/FS nor a ROD is required for these sites, the close out report
assumes an added significance. In such cases, the On-Scene Coordinator  (OSC)
prepares  the close out report and the report must provide adequate  documentation that
the activities performed at the site are sufficient to meet the completion requirements.
The OSC report can be referenced to provide some of the  necessary information.

It is anticipated that a close out report will present the following findings:

•      All  hazards and pathways of exposure described in the NPL listing of the site
       have been adequately addressed

       The implemented remedy achieves the degree of cleanup or  protection specified in
       the ROD(s) for all pathways of exposure, and no further response is appropriate
       in order to provide protection of public health and the environment

       All construction activities performed on site have been completed to design
       specifications; reference should be made to construction management and
       inspection reports, and other documents identifying acceptance of the work
       performed
                                       -4-

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                              Exhibit XI-1

     Review and Approval Process for Close Out Report
                         Notify Headquarters Through
                   CERCLIS/WasteLAN of the Region's Intent
                    to Grant Site Completion or LTRA Status
                 Notify State Authorities of the Region's Intent to
                     Grant Site Completion or LTRA Status
                  Region (or State) Prepares Close Out Report
                 Peer Review of Close Out Report in the Region
                                 (or State)
                                   I
               Revise Close Out Report (as necessary) and Submit to:
                • Headquarters for Technical Review and Comment
                    • Appropriate State Authorities for Review
                                   i
                 Revise Report (as necessary) and Submit to the
                           Regional Administrator
                 I
Regional Administrator Approves
     the Close Out Report
Regional Administrator Approves
     LTRA Interim Report
                                                         Amend Interim Report
                                                    I

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                          The levels of contamination at the site have been brought to within the levels
                          specified in the ROD, and implemented remedies are performing at design
                          specifications

                          A Five-Year Review, if appropriate, was conducted, and what actions, if any,
                          were taken as a result of that review

                          O&M specified for the site is in place, is guaranteed by the State or PRP, and is
                          sufficient to  maintain the effectiveness of the remedy

                          The institutional controls necessary for the effective performance of the remedy
                          are in place.

                   Since the close out reports are site-specific, the findings vary for each site. The RPM is
                   expected to exercise his/her professional discretion in reaching findings appropriate for a
                   particular site and to use available documentation of site  activities as reference
                   material.

C.  Evaluation for  Under section 300.425(e)(1) of the NCR, sites can be deleted or recategorized on the
    NPL Site       NPL, in consultation with the State,   if one or more of the following criteria are met:
    Deletion
                   •       Responsible or other parties have implemented all appropriate response actions
                          required by EPA

                          All appropriate Fund-financed responses under CERCLA have been implemented
                          and no further response by responsible parties is appropriate

                          Based on a remedial investigation, it is determined that the release poses no
                          significant threat to human health  or the environment and, therefore, taking
                          remedial measures is not appropriate.

                   Under section 300.425(e)(3) of the NCP, a deleted site is "...eligible for further Fund-
                   financed remedial actions should future conditions warrant such action."  Therefore,
                   deleting a site from the NPL does no,] preclude the site's eligibility from subsequent Fund-
                   financed or PRP actions. Future action can be taken at such sites without returning the
                   site to the NPL.  However, if it is determined that the site should be returned to the NPL
                   the site may be reinstated without re-scoring on the Hazard Ranking System (HRS).
                   Furthermore, deletion does not affect cost recovery actions under section 107 of
                   CERCLA.

D.  Site Deletion    The deletion process may begin after the Regional Administrator approves the close out
    Process        report.  Exhibit XI-2 provides an overview of the deletion process. The State and Local
                   Coordination Branch of the Hazardous Site Control Division (HSCD)  is responsible for
                   Headquarters coordination of the procedures for deleting sites from the NPL. Regional
                   and Headquarters technical personnel should work closely with the deletion coordinator to
                   prepare the documents necessary to delete a site from the NPL.

                   The deletion process can be divided into three interrelated phases:
                                           -5-

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               '       Initiation phase

                      Public notice and comment phase

                      Final (deletion) phase.

               Each phase is described below.

Initiation       The initiation phase comprises three steps:
Phase
                      RPM consults with appropriate State staff and obtains formal State
                      concurrence

                      RPM compiles the deletion Administrative Record (deletion docket)

               •       RPM prepares the national and local notice of intent to delete for Headquarters
                      and  RA approval.

               The three steps of the initiation phase are discussed in greater detail below.

               State Consultation and Concurrence

               Regions initiate the deletion process by consulting with the State and requesting the
               State's concurrence on EPA's intent to delete a site.  In some instances, the State may
               initiate this process by specifically requesting the deletion of a site.  No site may be
               deleted without State concurrence.

               Deletion Administrative Record (Deletion Docket)

               The deletion Administrative Record of the Agency's decision to delete a site from the
               NPL is referred to as the "deletion docket."  It contains all pertinent information
               supporting the Region's deletion recommendation. The deletion docket is not a
               continuation of the site's Administrative Record for remedy selection; however,
               documents that are contained in the Administrative Record for remedy selection can be
               referenced and do not have to be duplicated in the deletion docket (provided the
               Administrative Record for remedy selection  is still available to the public).  Headquarters
               staff are available to assist the Regions in preparing the deletion docket or in resolving
               any outstanding issues regarding the site's deletion.

               The deletion docket is made available to the public at the Regional public docket and at a
               local repository.  The public has an opportunity to review the deletion docket during the
               comment periods that follow publication of the national and local notices of intent to
               delete.  RPMs should work with their Superfund community relations staff to ensure that
               complete copies of the deletion docket are placed in appropriate Regional and local
               repositories. The deletion docket is not maintained at Headquarters.  Therefore, no
               docket material should be submitted to Headquarters.
                                        -6-

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                 Exhibit XI-2

           The Deletion Process
           Approved Close Out Report
                      I
       Where Appropriate, Conduct At Least
             One Five-Year Review
           State Letter of Concurrence
                      i
 Prepare Notice of Intent to Delete (HQ Review) and
        Compile Deletion Docket Material
                     I
Place Deletion Docket in Regional Public Docket and
               Local Repository
    Publish National Notice of Intent to Delete in
   Federal Register: Publish Local Notice of Intent
     to Delete in Paper of General Distribution
                     JL
          30-Day Public Comment Period
                     1
 Prepare Responsiveness Summary; Place in Regional
          Docket and Local Repository
         Publish Final Deletion Notice in
               Federal Register

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The documents necessary to support the deletion docket vary depending on the type of
response (remedial action, removal action, no action) and the lead organization (Fund-
lead, enforcement, State-lead).  The following represents a suggested list of documents
to be included in a deletion docket:
       Rl report
       FS report
       ROD (or  equivalent) for each operable unit
       Consent decree
       Action Memorandum
       Community Relations Plans
       Superfund  State Contract
       Cooperative Agreements
       Agreements with PRPs
•      Design plans and specifications
       Construction inspection reports
       Construction final report
       OSC report
       Documentation of State concurrence
       Operation and  maintenance plan
       Close Out Report
       Initial Five-Year Review report, where appropriate
       Transcripts of  Public Meetings
       Responsiveness summary for  notice of intent to delete
       Bibliography of documents.
The above list is not intended to be complete. RPMs should exercise their professional
discretion when deciding what supporting documents to include in the deletion docket.
                        -7-

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               Preparing the National and Local Notices of Intent to Delete

               The RPM submits draft notices of intent to delete to the Regional Administrator for
               approval.  At a minimum, the Federal Register (nationah notice and the local notice
               should contain the following sections:

               •       An announcement of intent to delete

                      Requests for public comments during a 30-day period

                      The name and address of a Regional contact to whom comments may be sent

                      The location(s) of the deletion docket

                      The name and address of a Regional contact who can answer questions and
                      provide additional information

                      Summary of site conditions and actions taken

               In addition, the national notice should contain  supplementary information on NPL deletion
               criteria, deletion procedures and the basis for  intended site deletions. Specific guidance
               for preparing the national notice is contained  in OSWER Directive 9320.2-3A, "Procedures
               for Completion and  Deletion  of National Priorities List (NPL) Sites" (April  1989).

Public Notice    The Regional Superfund Community Relations Coordinator should prepare and distribute
and Comment  the local notice of intent to delete. This statement should be published in local
Phase          newspapers of general circulation and distributed to State, local, and community officials;
               appropriate Federal agencies (e.g., the Agency for Toxic Substances and  Disease
               Registry, the National  Response Team, and  the U.S. Coast Guard); enforcement
               personnel from the Office of Regional Counsel (ORC); and local  repositories.

               In addition, the ORC should inform the State Attorney General and other  interested
               State agencies, Federal and  State courts, and the U.S.  Department of Justice.

               The RPM should work with the Regional Superfund Community  Relations Coordinator to
               ensure that the local notice has been distributed to all appropriate recipients.

Final Phase     In the final phase of the deletion process, the  RPM is responsible for preparing the
               responsiveness summary, and a draft Federal Register notice to announce the deletion.

               The responsiveness summary serves two functions:

                      Documents  the manner in which EPA considered and responded to the public
                      comments

                      Provides the Agency with information about the interested community's concerns
                      regarding EPA's intent to delete a site.
                                      -8-

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RPMs are responsible for preparing responsiveness summaries of national and local
comments.  The State and Local Coordination Branch of HSCD will assist the Regions in
preparing responses when appropriate.
A responsiveness summary describes the following:
       Comments received during the national and local comment periods
       Comments from public meetings (if any)
•      Responses from the Region to all national and Ixal comments.
The responsiveness summary must be approved by the Regional Administrator.  A copy
of the approved summary must be included in the deletion docket and local repository.
The Regional Administrator will then publish the notice of deletion in the Federal Register.
                       -9-

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III. PLANNING AND REPORTING REQUIREMENTS

Upon completion of all remedial activity, the RPM should ensure that the accomplishment
is entered into CERCLIS/WasteLAN for SCAP and STARS reporting purposes.  This
information will be used to evaluate Regional progress toward meeting SCAP and
STARS targets.  Projections of site completions/deletions are made on a program-
specific basis for resource allocation purposes.

RPMs are responsible for ensuring that an accurate CERCLIS/WasteLAN site
information form (SIF) is completed for site deletion. Exhibit XI-3 provides an example of
a completed SIF for site deletion. The RPMs should complete the SIF using the sample
outline of fields and values:

A.     Operable Unit (00, site deletions occur per site, not for an individual operable
       unit)
B.     Event Code/Name (ND = NPL Deletion)
C.     Lead (F = Fund)
D.     Plan start/complete date  (FYQ)
E     Actual start/complete date (MM/DD/YY)
F.     Event NPL Indicator  (Y/N)
G.     Financial Information

       1.      Financial Type (P = Planned Obligation)
       2      Budget Source (R = Remedial)
       3.      Financial Amount
       4.      Financial Plan Date (FYQ)

The NPL deletion process is initiated when the RPM reviews the performance monitoring
of the completed remedy for the site, verifies the integrity of the remedial action, and
concludes that no further action is  required at the site.

The Region receives credit for a deletion when a notice of intent to delete the site is
published in the Federal Register.
                       -10-

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A.  Negative
    Public
R  State Non-
    Concurrence
C.  Waste Lett
    On Site
IV.  POTENTIAL PROBLEMS/RESOLUTIONS

If public comments indicate strong disagreement with the recommendation, the
responsiveness summary should provide justification for proceeding with the deletion. If
the public comments address issues of national concern, RPMs should coordinate with the
HSCD Deletion Coordinator in preparing appropriate responses.

No site may be deleted from the NPL without the State's concurrence. Therefore, the
absence of this concurrence will prevent the site's deletion from the NPL.  The RPM
should work closely with the State Project Officer (SPO) to resolve any problems that
may exist. If the RPM cannot effectively address the problems, the RPM  should consult
with appropriate Regional and Headquarters management.

The fact that quantities of waste may be left on site does not preclude completion
status so long as the Agency, in consultation with the State, determines that the
remaining waste does not pose a significant threat to public health or the environment.
To reach this determination, the RPM must be able to demonstrate to  Regional
management that the implemented remedy achieved an adequate level of protectiveness.
However, five-year reviews (CERCLA 121(c)) may be required at the site if wastes
remain above health-based levels.  RPMs should consult with HSCD concerning whether
five-year reviews are appropriate for their sites.
                                        -11-

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             V.  REFERENCES

Policies       40 CFR, Part 300, "National Oil and Hazardous Substances Pollution Contingency Plan"
             (March 8,1990).

Guidance     OSWER Directive 9320.2-3A, "Procedures for Completion and Deletion of Sites from the
             National Priorities List (NPL)" (November 1988).

             OSWER Directive 9320.2-3B "Update to the Procedures for Completion/Deletion of NPL
             Sites Guidance Document Regarding the Performance of 5-Year Reviews" (December
             29,1989).

Contacts     Office of Emergency and Remedial Response (OERR), Hazardous Site Control Division,
             Design and Construction Management Branch, FTS 398-8336.

             Office of Waste Programs Enforcement (OWPE)  CERCLA Enforcement Division,
             Compliance Branch, FTS 398-8612.
                                   -12-

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VI.  ACTIVITY CHECKLIST

This section provides a checklist for the RPM to refer to during the completion/deletion
process. The 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)	       Consult with appropriate Headquarters staff member of the Office of
               Waste Programs  Enforcement (OWPE) or Office of Emergency and
               Remedial Response (OERR) on site completion.

2)	       Initiate confirmatory sampling and monitoring as described in the ROD(s).

3)	       Perform technical evaluations of data generated from performance
               monitoring and confirmatory sampling.

4)	       Draft close out report using information from previous site activities and
               referring to previous technical documents.

5)	       After the  Regional Administrator approves and signs the close out
               report, initiate the deletion process.

6)	       In consultation with appropriate EPA and State staff, determine
               whether the site meets at least one of the NPL deletion criteria listed in
               40 C.F.R. (§300.425(e)(1)).

7)	       Consult with appropriate  State staff and obtain formal State
               concurrence with EPA's intent to delete.

8)	       Begin preparing the deletion docket (i.e., the Administrative Record of
               EPA's decision to delete a site from the NPL).

9)	       Draft Federal  Register (i.e., national) notice of intent to  delete for the
               Regional  Administrator's approval and the AA, OSWER's concurrence.

10)	      Draft local notice  of intent to delete. The notice should summarize the
               information contained in the national notice.

11)	      Complete the deletion docket.

12)	      Publish the notice of intent to delete in the Federal  Register and local
               newspaper of general circulation.

13)	      Collect and assemble all public comments.

14)	      Prepare responsiveness summary.
                       -13-

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15)	      Prepare a draft Federal Register notice to announce the deletion of the
               site(s) from the NPL  Notice should provide a summary of comments
               received concerning national and local notices of intent to delete. Notice
               also should include the responsiveness summary.

16)	      Region publishes the notice of deletion in the Federal Register.
                        -14-

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                                COST  RECOVERY
I.      DESCRIPTION OF ACTIVITY	1

       Introduction	1
       Cost Recovery for Conventional Removals	1
       Cost Recovery for Sites in the Remedial Process	2
              Cost Recovery in Context of RD/RA Negotiations	2
              Case Referral	3
       Recovery of Oversight Costs	3

II.     PROCEDURES  AND  INTERACTIONS	5

       A.     PRP Liability	5
              Elements of Liability	5
              Standard of Liability	6
              Scope of Liability -- Joint and Several	6
              Defenses	7
       B.     PRPSearches	7
       C.     Cost Recovery Strategy	8
              Prioritization of Cases	8
              Timing	9
              Decision Not To Pursue Cost Recovery	10
              Close-out Memorandum	10
       D.     Notification and Demand Requirements	10
              Special Notice Letters	11
              Demand Letters	11
              Types  of Costs and Pre-Judgment Interest	12
       E      Documentation Requirements	12
              Types  of Expenditures	13
              EPA Indirect Costs	13
              Evidence	14
              Cost Summaries	14
       F.      Documentation Procedures	16
       G.     Judicial Cost Recovery	18
              Referral Package	18
              Litigation Support	18
              Litigation Management Plan	19
       H      DsMbfflB Settlements	20
              Necessary Information	20
              Release From Liability and Reopeners	21
       I       Administrative Settlements	21
       J.      Enforcing Settlements	21
       K.      Arbitration	22
       L      MixedFunding	22
       M.     Bankruptcy Actions	22
              Statutory Background	22
              Proof of Claim	23

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            Environmental Clams as Priorities	24

III.    PLANNING AND  REPORTING REQUIREMENTS	25

      A.     Planning	25
      B.     Budgeting	25
      C.     Reporting Requirements	25
IV.   REFERENCES	28

      Regulation	28
      Policies	2B
      Guidance	28
      Manuals	29
      Contacts	30

      APPENDIX

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                                    COST  RECOVERY
                  I   DESCRIPTION OF ACTIVITY

Introduction        When the Agency uses Fund monies for a response action at a site where there are
                  financially viable PRPs, it is authorized to take an enforcement action against those
                  PRPs to recover its costs. This action, under section 107 of CERCLA, is known as a
                  cost recovery action.  Cost recovery can  be pursued for the costs of conventional
                  removal, Remedial Investigation/Feasibility Study (RI/FS), Remedial Design (RD) and
                  Remedial Action (RA), including EPA's costs of overseeing PRP responses. The
                  enforcement actions taken may include issuance of demand letters, negotiations with
                  PRPs, arbitration, administrative settlement, judicial settlement, and litigation.

                  This chapter provides RPMs/OSCs with an overview of the central components of cost
                  recovery actions. The information is  organized to follow the chronology of tasks that an
                  RPM/OSC manages in a cost recovery action.

                  There are two major types of cost recovery actions:

                         Cost Recovery for Removals

                         Cost Recovery for Remedials.

                  Also, as part of each type of cost recovery action, EPA may recover oversight costs.
                  Many cost recovery cases are not limited  to one type of cost, but include  both remedial
                  and removal costs and may include oversight costs for some portions of the response
                  actions.  In such cases, documents relevant to all aspects of the case must be  compiled.
                  Each of these types of cost recovery actions is discussed briefly below and Exhibit XII-1
                  presents a graphic description of the process of each type of action.

Cost Recovery    During the course of the conventional removal action, the OSC is  responsible for
for Conventional   compiling the Administrative Record with assistance from Regional Counsel and
Removals         Administrative Record Coordinators,  obtaining information on the identities of  PRPs, and
                  documenting the removal work undertaken and the costs incurred. As the removal is
                  completed, the OSC is responsible for completing the PRP search information. After the
                  removal is completed and the OSC files the final  report for the action, the Agency must
                  decide whether or not to pursue cost recovery for  its expenses. In selecting which sites
                  to pursue, the Agency places a higher priority on sites where more than $200,000 was
                  spent on the removal action.  If the Agency decides to proceed with cost recovery, three
                  parallel activities are conducted: (1) assure that the liability information collected in the
                  PRP search meets evidentiary standards, (2)  document the costs of the  removal action,
                  and (3) review the compilation of the administrative record.

                  Once the Agency's costs have been documented and the PRPs are reasonably well
                  identified, EPA sends demand letters to the PRPs. The demand  letters notify the PRPs
                  of their liability for the Agency's cleanup costs and demand payment of the full costs of
                  cleanup.  In  a limited number of situations, the PRPs will respond to the demand letters by
                  reimbursing  the Agency immediately for its costs.  However, in most situations, the
                                            -1-

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Cost Recovery
lor Sites in the
Remedial Process
Cost Recovery in
Context of
RD/RA
Negotiations
PRPs will seek to negotiate with the Agency over the extent of their liability or the costs
incurred. If these negotiations result in a settlement, EPA and the PRPs may enter into
an administrative order on consent that requires the PRPs to reimburse the Agency for
its costs. If the total response costs at the site exceed $500,000 (excluding interest), the
Department of Justice (DOJ) must concur on the terms of the  settlement.

If the PRPs refuse to reimburse EPA for these costs, the Region will decide whether to
refer the case to DOJ to recover the money. When deciding whether to initiate a judicial
action, the Region reviews the case's priority and ail available evidence and evaluates
the likely success of cost recovery efforts for that particular  site. If the Region decides
to initiate the suit, the case will be referred to DOJ. In general, cost recovery cases
involving post-SARA removals (except those with section 104(c)(1)(C) waivers) must
be filed within a statute of limitations date of three years from completion of the
removal.

Cost recovery activities at sites in the remedial process are a function of past
expenditures for removals,  RI/FS  or RD, the outcome of RD/RA negotiations, and timing
concerns related to possible statute of limitations dates.  When EPA incurs cleanup costs
at a remedial site, there are five contexts in which it may recover its costs.  First, if the
Agency funds a removal or the RI/FS and the PRPs agree to  perform the  RD/RA, the
Agency may recover the costs of the removal and RI/FS  from the PRPs as a part of
the RD/RA settlement. Second, if the Agency funds a removal or the RI/FS and one
group of PRPs agrees to perform  the RD/RA but there is another group of viable PRPs
that does not settle for the RD/RA,  the Agency may sue  the non-settlors separately for
its RI/FS costs. Third, if the Agency funds  the RD/RA because there was no
settlement, it may seek to recover the costs of the entire response in a cost recovery
action, which should be developed at the commencement of remedial construction.
Fourth, where the time between the completion of a removal, RI/FS or RD and the
initiation of on-site construction is likely to exceed three years, EPA will file for cost
recovery regarding the removal and/or RI/FS and/or RD costs and later amend the suit
to add the costs of the RA.  Finally, where there are multiple remedial operable units,
EPA will pursue a cost recovery action at the first operable  unit to recover its costs and
to obtain a declaratory judgment on  liability for its costs at the subsequent operable
units. EPA then will bring subsequent actions for its costs at the other operable units as
they are incurred. The program operates on the assumption that there may be different
statute of limitations dates for different operable unit activities.

In general, the  process for recovering the costs of activities during the remedial response
is similar to that used to recover removal costs. However, because the Agency may be
seeking either the costs of a removal or the RI/FS, the RD/RA, or several responses,
the timing of these activities may  vary. When the Agency negotiates with the PRPs to
perform the RD/RA at the site, the RI/FS costs will be pursued as part of the overall
negotiations. If, however, the Agency is pursuing remedial response costs separately
from a settlement for RD/RA, separate cost documentation and demand letters will be
required. Refer to Chapter VII, RD/RA Negotiations for a more-detailed discussion of the
process of RD/RA negotiations.

The RPM, in conjunction with the  ORC and  the civil investigator, is responsible for five
major pre-litigation activities involved in remedial  cost recovery that can be performed
                                             -2-

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                  concurrently and usually occur near the time that the ROD is signed. These activities
                  are:

                          Ensure that the PRP-liability information meets evidentiary standards

                          Complete and certify the Administrative Record

                          Document the removal, remedial, and oversight activities undertaken and the
                          costs of these responses

                          Send demand letters either as part of special notice letters or separately

                          Negotiate with the PRPs about their liability and the extent of EPA's costs.

                  If this process is successful and the PRPs agree to reimburse the Agency for its costs,
                  the settlement usually will result in a consent decree.

Case Referral     If the PRPs do not agree to either perform the RD/RA or reimburse the Agency's costs,
                  EPA will develop a case to sue some or all of the PRPs depending on their liability and
                  financial viability, the universe of PRPs, and their contributions.  This case, developed at
                  the time the remedial action starts, will seek to recover EPA's past and future costs,
                  plus interest.  The first step in this process is to prepare a referral package. The case  .
                  team prepares the case for referral to DOJ. The team is charged with assembling  all
                  pertinent facts and documents concerning the response decision and underlying record;
                  PRP liability, defenses and viability; and response activities and costs into a litigation
                  referral package. Assembling cost documentation will require the case team to coordinate
                  their efforts with Regional financial personnel, and the  Financial Management Division
                  (FMD) and OWPE.  The final product of the case team's work is a referral package.

                  The completed direct referral package is sent to DOJ for litigation.  As DOJ develops the
                  case, members of the case team will be called upon to perform litigation support
                  activities.  This may involve support activities ranging from consultation with the case
                  attorneys on technical aspects of response authorization, to time consuming involvement
                  in complex litigation, to testimony in court.  The RPM/OSC also  must budget and
                  manage litigation support contractors, and can expect to be called  upon to provide
                  his/her technical expertise to help prosecute the cost recovery case.

Recovery of       EPA may recover its costs when the PRPs perform a removal or remedial action and
Oversight Costs   the Agency incurs costs in overseeing that action. Where the response action is an
                  RI/FS, section 104 of CERCLA  requires that the PRPs reimburse the Agency for these
                  costs. In other contexts, this reimbursement of oversight costs is required by EPA policy.
                  The agreement to pay EPA's oversight costs will generally be a part of the settlement
                  document for the PRP's response action.  That document should specify what the
                  Agency  must give the PRPs to prove its costs, such as a standard report from the
                  Integrated Financial Management System,  and  how often the PRPs will reimburse the
                  Agency.  PRPs often reimburse the Agency on  a semi-annual or  annual basis. Where the
                                             -3

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consent order for an RI/FS or consent decree for RD/RA specifies the cost categories
and documentation to be provided by EPA with billings, the documentation process should
include fewer disputes than where the settlement document is not specific.

References

OSWER Directive 9832.13, "The Superfund Cost Recovery Strategy" (July 1988).

OSWER Directive 9832.11, "Guidance on Documenting Decisions Not to Take Cost
Recovery Actions" (June 1988).

OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs for CERCLA Section
107 Actions" (January 1985).

OSWER Directive 9832.1, "Cost Recovery Actions Under the Comprehensive
Environmental Response,  Compensation, and Liability Act of 1980" (August 1983).

OE, "Model  Limitation Report for CERCLA §106 and §107 and RCRA §7003 Actions"
(June 21,1989).
                          -4-

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                  L   PROCEDURES AND INTERACTIONS

                  CERCLA establishes the liability of responsible parties for the costs the government
                  incurred when responding to a release of hazardous substances. There are three key
                  statutory provisions:

                         Section 107 of CERCLA authorizes the Agency to seek cost recovery and pre-
                         judgment interest through judicial action.

                         Section 122 of CERCLA establishes conditions on settlements.

                         Section 122(h) of CERCLA authorizes the Agency to enter into administrative
                         settlements with PRPs, but requires DOJ approval when the total response
                         costs at the site exceed $500,000.  The authority to settle cost recovery cases
                         administratively was delegated to the Regional Administrators by Delegation 14-
                         14-D (Sept. 21,1987).  Section 122(h)(3) of CERCLA provides the Agency with
                         the necessary authority to enforce these settlements.

                  The Agency's cost recovery strategy emphasizes negotiating administrative settlements
                  whenever possible and litigating only when necessary. The Regions have been delegated
                  the authority to enter into administrative settlements.

                  This section of the chapter discusses the following subjects that are relevant to the cost
                  recovery  process:

                  A.     PRP Liability
                  B.     PRP Searches
                  C.     Cost Recovery Strategy
                  D.     Notification and Demand Requirements
                  E     Documentation Requirements
                  F.     Documentation Procedures
                  G.     Judicial Cost Recovery Actions
                  H.     De minimis Settlements
                  I      Administrative Settlements
                  J.      Enforcing Settlements
                  K.     Arbitration
                  L.     Mixed Funding
                  M.     Bankruptcy

                  Each is presented below.

A.  PRP Liability  This section  discusses the nature of PRP liability for EPA's response costs. It describes
                  the elements of a cost recovery case,  the standard of liability that applies, the scope of
                  the PRP's liability, and the categories of PRPs that are liable.

    Elements of   Under section 107(a) of CERCLA, the Federal government can file suit in Federal
    Liability       district court to obtain reimbursement for response costs. To prove its claim for
                  cost recovery, the government must establish that:
                                             -5-

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Standard of
Liability
Scope of
Liability •-
Joint and
Several
       The site is a facility

•      There was either an actual or threatened release of a hazardous substance
       from the facility

•      EPA incurred costs as a result of this actual or threatened release

       The defendant falls within one of the four categories of PRPs.  These are:

            Current owners or operators of facilities or vessels

            Owners or operators of a facility at the time hazardous substances were
            disposed of

            Persons who arranged for treatment or disposal of hazardous substances
            that went to the site, e.g.  generators

            Persons who accepted hazardous  substances for transport to disposal or
            treatment sites of their selection.

Proof of liability may be more complex at old sites with limited documentation.  For
example, the PRP search includes obtaining evidence that the generators materials were
sent to the site, and contained hazardous substances. Further information on elements
of liability is contained in Chapter IV, PRP Search, Notification and Information
Exchange.

Section 107 of  CERCLA imposes strict liability on those who are in one of the four
classes of parties described in section 107(a), rather than a negligence standard.  This
means that PRPs are liable even if:  the problems caused by the hazardous substance
release were unforeseeable; the PRP acted in good faith; or state-of-the-art waste
management practices were used at the time the materials were disposed.  One of the
most significant aspects of CERCLA is  that the PRPs are liable for both their past and
present waste  management practices.

The courts  have interpreted CERCLA to impose  joint and several  liability on PRPs
where two or more PRPs cause a harm that is indivisible, such as  in the case of
commingled wastes. Under joint and several liability, each PRP can be held individually
liable for all of  the costs of cleanup of a site, regardless of the amount of waste that the
PRP sent to the site.  Under this legal doctrine, the Agency may choose which PRPs to
sue. The Agency does  not have to sue all PRPs involved at a particular site.  If EPA's
suit against the named PRPs is successful, those PRPs are liable  for the entire cost of
all response activities.

When the Agency recovers the cost of the response action from the named PRPs, those
PRPs may  seek contribution from other PRPs. When PRPs bring a contribution action,
they seek to recover a share of the judgment from other persons who were involved at
the site, but were not sued by EPA.  The Agency should not be involved in any
contribution action brought by the named PRPs.
                                         -6-

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Defenses          Section 107(b) of CERCLA enumerates defenses that may be asserted by PRPs in any
                  cost recovery action. If RPMs/OSCs have any knowledge of a defense that a PRP
                  may raise, the RPM should advise the Office of Regional Counsel (ORC).

                  Consistent with CERCLA's strict liability standard, three defenses are  available that
                  will keep a PRP from being held liable for the Agency's costs. The defendant has a
                  defense if it establishes that the release was caused solely by:

                         An act of God as defined in section 101 (1) of CERCLA

                         An act of war, or

                         A third party other than one in a contractual relationship with the defendant, if
                         the defendant establishes that he exercised due care and took precautions
                         against foreseeable acts and omissions of such third party. A subset of this
                         defense is the innocent landowner (purchaser) defense in section 101(35) of
                         CERCLA.

                  The Agency's right to recover costs is also limited by the requirement that the response
                  costs are "not inconsistent with the national contingency plan (NCP)." The PRPs bear
                  the burden of proving that the Agency's response costs are inconsistent with the NCP.

fl  PRP          The purposes of a PRP search include collection of evidence  of the PRPs' liability and
    Searches     financial viability. In cases  where the PRPs fail to conduct the response activity and do
                  not agree to reimburse the government's  costs, PRP searches provide much of the
                  evidence of a PRP's liability that will be used in  future litigation.

                  The PRP  search includes the collection and analysis of information about each PRP's
                  connection to the site. The information collection includes title searches, a review of
                  existing documentation such as waste manifests, responses to  CERCLA section 104(e)
                  information requests, interviews with knowledgeable parties, and analyses of waste-in
                  information. A PRP search report is developed from this information, which describes in
                  detail each PRP's involvement with the site and the evidence that proves that
                  involvement.

                  The PRP search is a fundamental component of a response action.  The exigencies of
                  the particular site and the value of the response action dictate the scope of the initial
                  PRP search.  The search should be initiated as early as possible to develop a site-specific
                  enforcement  strategy. The  PRP search generally continues during the response activity
                  at a site.  Supplemental work may be necessary for cost recovery.

                  PRP searches are discussed in detail in Chapter IV, PRP Search, Notification, and
                  Information Exchange.

                  References

                  OSWER Directive 9834.6, Potentially Responsible Party Search Manual  (August 1987).

                  OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for Sites in the
                                             -7-

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C.  Cosf
    Recovery
    Strategy

    Prior/tea-
    fi'on of
    Cases
Superfund Remedial Program" (June 29,1989).

EPA's cost recovery strategy sets  forth the Agency's priorities for cost recovery and
the steps that each response action must go through toward settlement, litigation, or site
close-out.

Once a response activity has been identified as a candidate for judicial action, Regional
management prioritizes the case to ensure that Regional resources are efficiently used to
meet the objectives of the cost recovery program, which are:

       Maximize return of revenue to the Trust Fund

       Initiate enforcement  activity within strategic time frames, but no later than the
       date defined  by the applicable statute of limitation

       Encourage PRP settlement

       Use administrative authority and dispute resolution procedures.

OSWER  has developed national case selection criteria for sites with financially viable
PRPs based on the amount of money expended at the site and the cost recovery
potential.  Based on these criteria, the priorities for initiating cases are:

       NPL and non-NPL sites where EPA has completed a removal action (including
       expanded removal actions,  RI/FSs, and initial remedial measures), the response
       costs are $200,000 or greater, and the statute of limitations deadline is
       approaching.

•       Cases where Fund-financed remedial design and action have been initiated. A
       remedial case referral to DOJ should be scheduled for every site in this category.

       Sites  where there has been a partial settlement providing the  Agency with less
       than full  relief and there are viable non-settlors.

       NPL or non-NPL sites where EPA has completed a removal action and the costs
       of response are $200,000 or greater. Depending upon resources, referrals to DOJ
       on these sites should occur no later than twelve months after the completion of
       the removal action.

       Sites where total response costs are less than $200,000.

In addition to  these five priorities, the  Agency will pursue cost recovery against PRPs
that are undergoing bankruptcy proceedings in limited circumstances.  Bankruptcy
referrals pose a difficult problem for four reasons:  lack of PRP unencumbered resources,
time constraints, EPA resource limitations, and lack of information.  RPMs should work
closely with the Regional  attorneys  and OE's National Project Branch to resolve  any
bankruptcy issues.
                                             -8-

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Timing        Based upon experience, EPA prefers to focus its energies on completing conventional
              removals before turning to cost recovery. At sites in the remedial pipeline, EPA prefers
              to have selected the remedy (i.e., the Agency knows what should be done at the site)
              and, if the RA is funded, to have started construction before engaging in litigation.  In
              selecting candidates for cost recovery, a conventional removal (not including an RI/FS)
              may be ready for referral when it is completed. A remedial is ready for referral when
              on-site construction of the RA is initiated.  RI/FS response costs are pursued as part of
              RA cost recovery, unless the RA will not begin within three years from the ROD, in
              which case the  RI/FS costs should be sought within three  years from the ROD.

              Cost recovery actions for conventional removals should be referred to DOJ as soon as
              possible after the action has been completed, ideally not later than one year after the
              completion date. Cost recovery actions for remedial responses should be developed for
              filing at the time of initiation of physical  on-site construction of the RA. RPMs/OSCs
              should anticipate that it takes at least two quarters to prepare a  referral package.

              RPMs/OSCs must be aware of  statutory time limits for filing cost recovery actions.
              Under section 113(g) of CERCLA, cost  recovery cases must be filed within three to six
              years, depending on the type of response. If a suit is filed after the specified time, the
              Agency's case could be dismissed.

              There are seven key dates that  limit the Agency's ability to pursue an initial cost
              recovery action for post-SARA response.  These are:

                     Conventional removal action: 3 years  from the completion date [section
                     113(g)(2)(A)  of CERCLA]

                     Conventional removal action with CERCLA section 104(c)(1)(C)  waivers:  6
                     years from the date the Regional Administrator signs the waiver

                     RI/FS:  3 years from signing date of the ROD

                     RD: 3 years from completion of the design

                     Conventional removal actions, RI/FSs, and RDs,  followed by the start of a
                     remedial action within 3  years of the completion date of removal, RI/FS, or RD
                     activity:  6 years from the starting date of physical on-site remedial activity

                     Remedial action:  6 years from the starting date of physical on-site construction
                     of the remedy [section 1l3(g)(2)(B) of CERCLA]

                     Subsequent cost  recovery actions where there is a declaratory judgment on
                     liability for response costs: 3 years after the completion date of all response
                     activity  [section 1l3(g) of CERCLA].

              RPMs/OSCs also must be aware that special circumstances, such as bankruptcy,
              impending fradulent transfer of assets, or the voluntary dissolution of the business of a
              PRP may require that a cost recovery case be  filed on an  expedited basis in order to
              assure that assets of the PRPs are available to pay for the cleanup.
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                  Reference

                  OSWER Directive 9832.3-1 A, "Cost Recovery Actions/Statute of Limitations" (June
                  1987).

     Decision      The Region may decide not to pursue cost recovery at a particular site after analyzing
     Not          the site's cost recovery potential.  Such decisions must be documented in a close-out
     To Pursue    memorandum and entered into CERCLIS. A decision not to pursue further cost recovery
     Cost         can also be addressed in the 10-point settlement analysis. Both of these documents
     Recovery     provide the Agency with a means of tracking the sites that have no further potential for
                  cost recovery and removing them from projections of future Fund revenues.

                  Information gathered during the PRP search,  removal action, and the RI/FS forms the
                  basis of the decision not to pursue cost recovery. The possible reasons for a Region to
                  decide not to pursue cost recovery include:

                         No PRPs were identified for the site

                         PRPs identified were not financially viable

                         Available evidence does not support one  or more of the essential elements of a
                         prospective case, and there is no reason to believe that such evidence can be
                         discovered in  the future

                         Very small expenditures on the site and inadequate resources to litigate.

     Close-out     The close-out memorandum will be written by the enforcement or removal program staff
     Memorandum  person assigned to the case. The close-out memorandum must be signed by the Regional
                  program division director.  Where legal issues are involved, the memorandum should be
                  written in consultation with an ORC attorney.  The memorandum and its supporting
                  documents are considered confidential; therefore, the close-out memorandum should poj
                  be placed in the Administrative Record.  Chapter XV, Records Management, discusses
                  how to handle confidential files.

                  References

                  OSWER Directive 9832.12, "Guidance on Cost Recovery Strategy" (July 1988).

                  OSWER Directive 9832.11 "Guidance on Documenting Decisions Not to Take Cost
                  Recovery Actions (June 1988).

D.   Notification   Under CERCLA and current Agency policy, there are several different provisions  for
     and Demand  notifying PRPs of their potential liability for clean-up costs. For cost recovery purposes,
     Requirements  the most important requirements are the issuance of letters with demands for
                  reimbursement, either notice letters or demand letters.
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Special       Special Notice Letters (SNLs) are issued prior to non-time-critical removals, RI/FSs and
Notice        RD/RAs pursuant to section 122(e)(1) of CERCLA when it is determined that a period
Letters       of formal negotiations would facilitate an agreement with the PRPs.  While a primary
              purpose of these letters is to facilitate negotiations for prospective work, the letters also
              serve as a vehicle to put past costs into the negotiations and trigger pre-judgment
              interest. Planning for non-time-critical removals, RI/FS, and RD/RA should include
              documentation of past costs.  Special notice letters should include a demand for past as
              well as prospective costs.

              Reference

              OSWER Directive 9843.10, "Interim Guidance on Notice Letters, Negotiations, and
              Information Exchange" (October 1987).

Demand       Prior to filing a cost recovery  lawsuit, as a matter of policy, EPA sends a written
Letters       demand letter to the PRPs. A demand letter is a request that the PRPs reimburse the
              Fund for a specified amount, which is generally associated with one or more response
              activities.  Also, written  demand triggers the accrual of pre-judgment interest on the
              response costs sought.  The authority to issue demand letters has been delegated to the
              Regional Administrators. RPMs should consult with their Regional management to
              determine who has redelegated responsibility for preparing and issuing demand letters in
              the Region.

              Demand letters should be sent for each separate response activity, such as removals,
              RI/FSs, RDs, and RAs.  The optimum time for issuing demand letters varies, depending
              on the nature of the response.

                     For removal actions, the OSC should  issue the letter soon after the removal
                     activities are completed and all necessary documents are compiled.

                     For each operable unit of remedial actions, a letter should be issued for the RI/FS
                     costs, RD costs and major phases of  RA costs at the following times:

                            In connection with the ROD (in special notice)

                     -   '    Soon after the RD is completed

                            Soon after major phases of the RA are completed.

              Reference

              OWPE, Draft "Written Demand for Recovery of Costs  Incurred Under CERCLA"
              (August 28,1990)
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Types of      In accordance with section 107 of CERCLA, the demand letter should seek to recover
Costs and     interest from the date that a payment of a specified amount is demanded in writing, or
Pre-          the date that an expenditure is actually incurred, whichever is later.  The demand letter
Judgment     should include a request for all  costs, including:
Interest
                     Contractor costs
                     EPA direct costs, including costs such as EPA staff salaries, travel and other
                     miscellaneous site-specific expenses
                     Costs  incurred under Interagency Agreements, including Corps of Engineers,
                     DOJ, ATSDR, and Coast  Guard
                     Costs  incurred under Cooperative Agreements, including State agreements
                     Indirect costs incurred by EPA for the response actions
                     Pre-judgment interest
              •       Future costs.
              References
              Comptroller  Policy Announcement 87-17, "Interest Rates for Debts Recoverable Under
              the Superfund  Amendments and Reauthorization Act of 1986" (September 1987).
              OARM, Superfund Indirect Cost Manual (March 1986).
Documents-   The Region's site files will contain several types of documents that can be used to
fon           support a cost recovery action, including:
Requirements
                     Enforcement information, including data on PRP liability
                     The administrative record,  relating to the selection of the response action
                     Activity and cost documentation.
              This section discusses the documents relating to the third category.
              When the Region begins its cost recovery action, a Regional member of the case
              development team may be designated as the Cost Recovery Coordinator in Regions that
              do not already have designated Cost Recovery Coordinators.  The person preparing the
              referral has  primary responsibility for collecting and organizing cost recovery
              documentation.
              References
              OSWER Directive 9832, "Cost Recovery Actions Under the Comprehensive Environ-
              mental Response, Compensation, and Liability Act of 1980 (CERCLA)" (August 1983).
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              OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs in CERCLA Section
              107 Actions" (January 1985).

              FMD, "State Superfund Financial Management and Recordkeeping Guidance" (August
              1987).

              OARM, "Superfund Financial Management and Recordkeeping Guidance for Federal
              Agencies" (January 1989).

Types of      The government's costs of the response action can be broadly divided between direct and
Expenditures  indirect expenditures. Direct expenditures are those that are attributable solely to the
              site in question. These  include contractor, EPA, and other Federal and State agency
              staff time, travel and equipment directly associated with the site.  Indirect costs, on the
              other hand, are costs incurred which support more than one response action (e.g., office
              space, light, and supplies for contract and EPA personnel who work on the response
              actions), and so must be apportioned among all the  response actions that they support.
              Under general accounting principles, total cost is the sum of "direct" and "indirect" costs.
              Both types  of costs are  recoverable under CERCLA.

              The types of expenditures for response activities that are recoverable include:

                     EPA site-specific payroll costs

              •       EPA site-specific travel expenditures

              •       Interagency Agreement expenditures

                     Cooperative Agreement expenditures

                     Costs incurred under EPA contracts with private contractors

                     Other site specific expenditures.

EPA Indirect   The indirect costs of EPA are included in the response action cost summaries as a
Costs        separate item of cost. EPA  indirect costs for a site represent the portion of the EPA's
              overhead and general and administrative costs which supported the response action at
              the site in question. The Agency uses a formula for recovering  costs which has been
              developed by a major national accounting firm, and an indirect rate is calculated for each
              fiscal year.  Indirect rates are calculated by determining the total  direct hours charged to
              the site during each fiscal year by Regional program staff and multiplying this number by
              the indirect  rate for the  fiscal year.

              Reference

              Office of the Comptroller, OARM, Superfund Indirect Cost Manual for Cost Recovery
              Purposes (1986).
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Evidence     The costs of response activities recoverable under section 107 of CERCLA are reflected
             in a variety of financial records and documents. There are two general types of
             information that will be available to prove the Agency's costs:

                    Activity evidence; documents proving that the response activities were actually
                    undertaken (i.e., authorized and completed)

                    Cost evidence; documents proving that costs were actually incurred and paid for
                    by the government.

             RPMs/OSCs often will provide from their files:

             •      Authorization for the scope and performance of work by the agency or the
                    contractor at the site, including documents such as Action Memoranda, Work
                    Plans, Work Assignments, Technical Directive Document (TDD)

                    Authorization for change in the scope or cost of work done at the site, including
                    documents such as Work Plan revisions and contract modifications

                    Evidence of contractor performance of work at the site and documentation  of
                    completion of that work, including documents such as the Form 1955s for a
                    removal, monthly technical and financial status reports  for REM contracts, TDD
                    or work assignment completion forms.

             In managing this information from the Agency's site files, RPMs should assure that
             Financial Management offices have provided the following types of documents:

                    Timesheets/timecards and payroll expenses

                    Travel vouchers and receipts

             •      Treasury schedules

                    Contracts/Letters of Agreement

                    Purchase orders and receipts

                    Paid processed invoices and vouchers.

             Properly documented costs generally lead to admissible evidence. This type of
             documentation lays the foundation for successful settlement negotiations and litigation.
             Therefore, RPMs/OSCs should work in close cooperation with  Regional counsel to
             produce admissible evidence documenting the Agency's costs.

Cost         To prevent the courts from being burdened with unwieldy documentation, Rule 1006  of the
Summaries   Federal Rules of Evidence allows voluminous documentation to be condensed into
             summaries. These summaries must accurately characterize the underlying documents.  In
             order to introduce a summary in court under Rule  1006, EPA must provide all of the
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underlying documents to the other parties at a reasonable time and may further be
required to produce the documents in court. Confidential Business Information (CBI) and
Privacy Act Information must be redacted (edited to delete confidential information).

The RPM and OSC should play an important role in the process of cost recovery not
only by assuring that documentation of the activities is provided, but also by assuring
that the cost summaries are complete and accurate.  It is essential that the cost
summary provide a complete, accurate and easily understandable summary of the work
performed for each cost claimed.  In addition, when  multiple activities (such as an RI/FS,
a removal and a remedial action) have been carried out by the  same contractor or State
or Federal agency, the RPM/OSC is the best EPA employee to assure that the
summaries accurately reflect these activities. The summaries must also include the
dates of actual service as provided by the contractor.  The RPM/OSC should assure
that the dates are accurate since they are used to  calculate statute of limitations and
authorization issues under contracts.  The RPM and OSC should always check the cost
package to assure that all costs have been included. Much of the information in the cost
package comes from the Integrated Financial Management System (IFMS) and there are
a number of costs which are not reflected in that system.  The RPM  should be careful to
see that costs of other Agencies, such as ATSDR,  DOJ, FEMA, Coast Guard, and
Health and Human Services are included.  In addition, the summary must be checked to
see that all costs that have been satisfied or paid are reflected  in the cost summary,
including  bankruptcy proceeds, settlements with other parties, costs  disallowed after
audit resolution or paid by the State or a private party. The RPM also will need  to
assure that calculations of the 10 percent share which the State owes for reimbursable
expenses is included and accurately reflected in the  summary.

In cost recovery actions,  the summaries must include a description of the response
activities, expenditure types, and actual costs, and must  indicate which agency
performed the activity. Cost summaries, which are primarily the responsibility of the
Regional  financial office,  should be arranged according to the following format:

       Agency site-specific payroll costs

       Agency site-specific travel expenditures

•       Interagency Agreement expenditures

•       Cooperative Agreement expenditures

       Site-specific contracts with contractors

•       Non-site-specific contracts with contractors

       Other Federal costs.

The above information should be summarized in a brief.

Because the cost summary is developed early in the case development process, the cost
summaries will need to be updated regularly as the various response  action phases are
                           -15-

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                  initiated and completed. RPMs/OSCs should obtain updated cost summaries at the most
                  critical stages of the response and litigation processes, and periodically (e.g., annually)
                  during periods of substantial expenditure. Frequent updating ensures that the most
                  recent cost data is available for management review.

                  The cost summaries should be reviewed for completeness, including:

                         Cost summaries do not demand payment for amounts which have been
                         previously recovered (e.g., bankruptcy proceeds, settlements)

                         Cost summaries include costs incurred by agencies with transfer allocations,
                         whose costs are not included in the  IFMS (DOJ, FEMA, ATSDR, USAGE)

                         State matching funds must be reflected in the summary so that we know what
                         costs must be matched and so that we do not demand in excess of the 90% of
                         such costs which the U.S. is entitled to claim.

                  Exhibit XII-2 outlines the type of material that should be included in a cost summary
                  report.

F.   Documents-   This section describes the procedures that are followed in assembling cost and activity
    tion          documentation for a cost recovery case. This process became a Regional responsibility
    Procedures    in January 1990 and requires joint activity by the Regional Financial Management Officer
                  and the Regional Cost Recovery Coordinator. In Headquarters, OWPE Cost  Recovery
                  Staff and Financial Management Staff provide support and training in use of the Cost
                  Documentation Management System (CDMS) and training in the overall cost recovery
                  procedures.  Headquarters OWPE is currently preparing the Cost Recovery Rule, but this
                  will not be effective until FY1991 or 1992.  Headquarters FMD is rewriting guidance on
                  cost documentation procedures.  This rewrite is not expected until FY 1991.
                  Headquarters FMD also provides site specific payroll and travel documentation.

                  The description provided here is a general outline of required inclusions in the cost
                  documentation package and the procedures for assembling the package.

                  The Regions assemble information for the  following areas of costs:

                         Agency site-specific Regional payroll costs

                         Agency site-specific Regional travel expenses

                         Other site-specific  Regional charges

                         Site-specific Cooperative Agreements

                         Non-site-specific Cooperative Agreements

                         Site-specific  indirect costs

                         Site-specific  Field  Investigation Team (FIT) costs
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                                 Exhibit Xll-2(1)

                            Cost Summary Format
 Payroll Summary
   by Employee
Employee name
Fiscal year
Hours worked (by pay period)
Salary amount (by pay period)
Total payroll costs
Cost documentation
 Payroll Summary
 by Other Federal
     Agencies
Employee names
Fiscal year
Hours worked
Salary amount
Cost documentation
Travel Summary by
     Employee
Employee name
Fiscal year
Travel authorization number
Voucher amount
Treasury schedule number
  and date
Cost documentation
   Other Federal
  Agency Travel
     Summary
Employee name
Travel authorization number
Voucher amount
Treasury schedule number
  and date
Cost documentation
  Interagency
  Agreements
Agency name
Interagency number
Description of tasks performed
Cost documentation
Voucher numbers and amounts
Dates of agency service
Total Interagency agreement cost

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                                  Exhibit XII-2(2)

                             Cost Summary Format
                                                               State name
                                                               Cooperative Agreement
                                                                grant number
                                                               Summary of work
                                                               Cost documentation
                                                               Draw-down voucher number
                                                                and amount
  Cooperative
  Agreements
                                                               Contractor name
                                                               Contract number
                                                               Project Officer or
                                                               Contracting Officer
                                                               Dates of work
                                                               Desciption of tasks performed
                                                               Total costs
                                                               Cost documentation
                                                               Voucher numbers and amounts
                                                               Treasury schedules
                                                                numbers and dates
  Site-specific/
Non site-specific
   Contracts
                                                              Delineation of costs in a
                                                              narrative summary. Format
                                                              should be brief
Narrative Summary/
Statement of Facts

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       Site-specific Technical Assistance Team  (TAT) costs
       Site-specific Technical Enforcement Services (TES) contract costs
       Site-specific Emergency Response Contract (ERG) costs
       Site-specific Contract Laboratory Program (CLP) costs
       Site-specific Remedial Contract (REM) costs
•      Site-specific Environmental Service Assistance Team (ESAT) costs
       Site-specific Alternative Remedial Contract Strategy (ARCS) costs
       Site-specific Environmental Emergency Response Unit (EERU) costs
       Site-specific National Enforcement Investigations Center (NEIC) costs
       Interagency Agreement (IAG) costs
       Site-specific Headquarters payroll costs
       Site-specific Headquarters travel expenditures
•      Miscellaneous costs related to the Agency's response activity
       Costs of overflights and aerial photography by the Environmental Photographic
       and Investigation Center (EPIC) and analyses of the photographs provided by
       the Environmental Monitoring and Systems Laboratory (EMSL).
After these costs are collected and categorized, they must be reconciled using
information in the Cost Documentation Management System (CDMS).  This system  is
usually maintained and operated by the Financial Management Officer (FMO) in the
region. The CDMS system downloads information on all site-specific accounts from the
Integrated Financial Management System (IFMS) and produces cost summaries which
can be included into the cost package which is  used in the cost recovery case. Once
prepared, the original cost package should be stored in the region. Another copy should be
sent to the Regional Counsel, who will use it in the referral package.
Part of the costs associated with a site may also be incurred by the Department of
Justice (DOJ).  While DOJ has responsibility for documenting its  costs, they may require
either the Cost Recovery Coordinator, the Financial Management Officer or the RPM to
testify in the cost recovery case. Hence, all parties should be familiar with the process
by which documents are prepared.
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Judicial       When EPA and the PRPs do not reach a negotiated settlement for reimbursement of
Cost          EPA's response costs, EPA usually sues the PRPs to recover those costs. This action,
Recovery     taken under section 107 of CERCLA, is known as a judicial cost recovery action.  A
              judicial cost recovery action requires the involvement of the RPM, ORC staff, and
              attorneys from DOJ.  The action is initiated when EPA prepares a referral package for
              DOJ. The referral package presents the evidence in the case and explains what EPA is
              seeking to recover.

Referral       To assist DOJ in preparing for cost recovery litigation, RPMs should work with the
Package      Regional attorney to prepare a section 107 referral package. At a minimum, the package
              should include the following information:

                     Description of the response actions and their status

              •       Administrative Record Index and Action Memorandum/Record of Decision

                     PRP liability analysis

                     Anticipated defenses

                     Activity and cost documentation

                     Natural resource damage claims (summarizes communications with trustee)

                     Enforcement history

                     Relief sought

                     Litigation/Settlement Strategy

              Generally, the following remain in Regional files:

                     Administrative Record
Litigation
Support
       PRP search backup documents (e.g., 104(e) responses)

       Activity and cost documentation.

The cost documentation package must be complete before the case is referred to DOJ,
except where there are statute of limitations problems. All documents in the package
should be indexed. Proper indexing enables the case management team to access
pertinent evidence from voluminous cost recovery case files.

RPMs and OSCs, with ORC and Civil Investigator assistance,  play an important role in
supporting cost recovery litigation, including:
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                       Ensuring that the PRP search provides sound evidence of liability and, for
                       generators, waste-in information

                       Ensuring that the Administrative Record regarding the selection of remedy is
                       compiled

                       Ensuring that all activities and costs are documented as needed

                       Providing the technical lead for the case and acting as witnesses as necessary
                       to prove the technical performance of the work at the site for which costs were
                       incurred

                       Assisting in case preparation and at trial in establishing discrete activities and
                       associated costs that were related to each phase of the work at the site (e.g.,
                       RI/FS, various removals, work on separate operable units)

                       Identifying potential fact witnesses who have personal knowledge of potentially
                       relevant information, such  as the PRP's liability, by providing the following
                       information:

                           Present place of employment

                           Home and business phone numbers

                           Substance  of testimony (brief statement)

                           Whether the witness'  statement is on file.

                     Identifying and interviewing potential expert witnesses, if necessary (e.g.,
                     hydrogeologists and soil scientists)

                     Identifying expert witnesses to participate in negotiations, if necessary

                     Identifying potential adverse witnesses (either fact or expert) and indicate the
                     substance of expected testimony, if known.

              In addition, RPMs and OSCs may be asked to assist Regional attorneys in preparing
              affidavits to substantiate the Agency's response costs, or  in preparing pre-trial motions,
              such as motions for summary judgment and motions to dismiss.

Litigation      A litigation management plan should be developed and approved by team members.  A list
Management  of the contents of the litigation management plan is included as an  appendix to this
Plan          chapter.  This plan is discussed in more detail in Chapter III, Comprehensive Site Planning.
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                  As a practical matter, most cases do not go to trial. There is strong legal precedent to
                  support the Agency's right to make claims for reimbursement of all incurred costs plus
                  interest. Consequently, most cost recovery cases will be settled out of court.  The
                  primary function of both the RPM  and OSC in litigation support is to work closely with
                  the attorneys from ORC and  DOJ.

                  References

                  OSWER Directive 9891.1-1a, "Procedures for Transmittal of CERCLA and RCRA Civil
                  Judicial Enforcement Case Packages to Headquarters" (June 12,1989).

                  OSWER Directive 9835.11 -1, "Model Litigation Report for CERCLA Section 106 and 107
                  and RCRA Section 7003" (June 21,1989).

H.  De Minimis    In addition to settlements during RD/RA negotiations, de. minimis settlements are tools
    Settlements   that may be used for eliminating the smaller contributors from the cost recovery process.
                  Section 122(g)  of CERCLA provides for settlement"... whenever practicable and in the
                  public interest..." if such a settlement  "... involves only a minor portion of the response
                  costs." There are two situations in which the Agency may agree to a de minimis
                  settlement:

                         The amount and toxicity of the hazardous substance contributed by the
                         PRP are  minimal compared  to other hazardous substances at the facility

                  •       The PRP is an owner that did not contribute to the release or threat of
                         release through any action or omission, did not conduct or permit the
                         management of hazardous substances on the property, or purchase the
                         property with knowledge  of its use for generation, transportation, treatment,
                         storage, or disposal.

    Necessary    The PRP search process is critical to determining whether a PRP is a de_ minimis
    Information    contributor. The search will provide  the RPM with information regarding the identity,
                  waste contributions, and financial viability of the PRPs.  The Regional management will
                  determine whether a PRP  is a de minimis contributor through an analysis that  includes
                  each PRP's waste contribution, whether the settlement  is "practicable and in the public
                  interest," and whether all past costs  are known.  If the  Agency expects to incur future
                  costs, this will affect the scope of  the settlement and covenant not to sue.

                  De_ minimis settlements may be entered as either:

                         Administrative orders  on consent

                  •       Judicial consent decrees.

                  The Regions may issue administrative orders  on consent when the total response costs
                  at the site are under $500,000. However, under section 122(g)(4) of CERCLA and the
                  EPA delegations,  when the total costs exceed $500,000 (excluding interest), the Regional
                  Administrator must:
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     Re/ease
     From
     Liability and
     Reopeners
     Administra-
     tive
     Settlements
d   Enforcing
    Settlements
        Obtain the approval of the Assistant Attorney General (AAG) for the Land and
        Natural Resources Division of DOJ, and

        Consult with and obtain concurrence from the Assistant Administrators of
        OSWERandOE.

 All d£ minimis settlements must comply with the public comment procedures stipulated in
 section 122(i) of CERCLA.

 The Agency may grant de minimis settlors a covenant not to sue.  EPA's covenant not
 to sue is given in exchange for the PRP's agreement to pay for part of the response
 costs. This agreement may release the PRPs from future liability for costs incurred by
 the Agency. The scope of the covenant will vary depending on site-specific factors.
 Under CERCLA, these covenants  may be conditional.  The Agency may agree to such a
 release only if the terms of the covenant include reopeners. Reopeners protect the
 Agency against cost overruns and the risk of paying for any further response action at
 the site.  In appropriate cases, this may be covered by premium payments.
                  References

                  OSWER Directive 9834.7, "Interim Guidance on Settlements with De Minimis
                  Contributors under Section 122(g) of SARA" (June 1987).
                                                                   Waste
OSWER Directive 9835.9, "Guidance on Landowner Liability under Section 107(a)(1) of
CERCLA.  De Minimis Settlements under Section 122(g)(1), etc." (June 6,1989).

OSWER Directive 9834.7-1 B, "Methodologies for Implementation of CERCLA
§122(g)(1)(A) De Minimis Waste Contributor Settlements" (December 20,1989).

Section 122(h)(1) of CERCLA expressly authorizes the Agency to settle its cost
recovery claims under section 107 if the case has not been referred to DOJ.  However,
when the total response costs at a facility exceed $500,000 (excluding interest), the
Regional Administrator must obtain the written approval of DOJ. He/She must also
consult with AA, OSWER and AA, OE.

References

"Revision of CERCLA Civil Judicial  Settlement Authorities Under Delegations 14-13-B
and 14-14-E" (June 17,1988).

OE, "Draft Procedures for Administrative Settlements Under Sections  122(h)(1) and (4)
of CERCLA" (October 1987).

If a settling PRP fails to comply with the terms of the settlement, the matter should
be referred to DOJ for civil action. Case referrals should occur within six months of
the default date.  In addition to inherent governmental authority,  section 122(h)(3) of
CERCLA authorizes DOJ to bring a civil action to enforce the terms of the
agreement. These terms are not subject to judicial review.  DOJ may petition the
court to impose the civil penalties authorized by section 109 of CERCLA.
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K.   Arbitration
L    Mixed
     Fvndhg
M.
Bankruptcy
Actions
Arbitration allows parties to resolve their disputes without litigating the matter in court.
Section 122(h)(2) of CERCLA authorizes the use of arbitration to resolve cost recovery
claims against PRPs if the total response costs at a facility do not exceed $500,000
(excluding interest).  Parties to a cost recovery action must consent to submitting the
claim to arbitration.

In binding arbitration, the parties are bound to follow the decision of the arbitrator, unless
the arbitrator acts improperly. Binding arbitration offers the Agency an expedited means
of resolving small cost recovery cases without the large expenditures of enforcement
resources required for traditional  litigation. Arbitration is most appropriate in the following
situations:

       The case is routine and does not present issues of national importance

       A large percentage of the PRPs at the facility agree to participate.

Section 122(i) of CERCLA requires the proposed decision to be published in the Federal
Register (£B) for a thirty-day comment period.

On  May 30,1989, EPA published the final rule for implementing the arbitration procedures
in 54 FR 23174.  Exhibit  XII-3 shows a flowchart of the procedures.

Section 122(b) of CERCLA authorizes the Agency to enter into mixed funding
agreements. Under the terms of a mixed funding agreement, the Agency shares the
response costs with settling PRPs.  RPMs should note that when the Agency enters
into a mixed funding agreement involving either a preauthorization or a cash-out with
certain PRPs at a site, EPA must make a reasonable effort to recover the amount
of such reimbursement from non-settling PRPs under a separate cost recovery
action. A more complete discussion of mixed funding can be found in Chapter VIII,
RD/RA Negotiations.

Some PRPs may file for bankruptcy before reimbursing the government for its
response costs. While the Regional attorney will handle most issues related to the
PRP's petition  for bankruptcy, the RPM should have a working understanding of the
process.  The following discussion should help RPMs become familiar with pertinent
concepts of bankruptcy law.
     Statutory     A PRP may file a petition for bankruptcy under either Chapter 7 (liquidation) or
     Background   Chapters 11 and 13 (reorganization) of the Bankruptcy Code. Bankruptcy proceedings
                  under Chapter 7 involve the collection and distribution of all the debtor's non-exempt
                  property.

                  By contrast, Chapters 11  and 13 allow the debtor to reorganize and rehabilitate rather
                  than liquidate. Under Chapters 11 and 13, the creditors look to the future earnings of the
                  debtor to satisfy their claims.

                  There are two bankruptcy issues that the RPM should understand:  proof of claim and
                  priorities in bankruptcy.
                                             -22-

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Proof of      Under the Bankruptcy Code, a debtor is discharged from his/her debts. This statutory
Claim         provision releases a debtor from debts incurred before the debtor filed his/her petition for
              bankruptcy (previous debts). Creditors may object to the discharge of their claim
              against the debtor.  The creditors must establish proof that they had a valid claim
              against the debtor's estate that has not been discharged as a previous debt.  Creditors
              establish this claim by filing a proof of claim in the bankruptcy court.  The deadlines for
              filing a proof of claim are as follows:

                     Under Chapter 7 of the Bankruptcy Code:  90 days from the first meeting of
                     creditors

                     Under Chapters 11 and 13 of the Bankruptcy Code:   the bar notice fixes the
                     deadline.

              The Agency has established a systematic procedure for receiving and distributing
              bankruptcy information.  This procedure ensures that the Agency files its proof of claim
              within the statutory defined deadlines, if appropriate. EPA has designated OE's
              National  Project Branch (NPB) as a central contact in Headquarters to receive all
              preliminary bankruptcy information. The NPB, in cooperation with the Regional
              bankruptcy contacts, will determine whether a particular multi-region bankruptcy matter
              should be handled as Headquarters-lead or as a Regional-lead.

              The Bankruptcy Code requires a person to provide notice to all creditors.  ORC takes
              the lead role in responding to the PRP's notice. Regional attorneys engage in the following
              activities:

                     Notifying the NPB at (FTS) 475-8293 and describing the status of the
                     bankruptcy petition

                            identifying whether the bankruptcy petition was filed  under Chapter
                            7,11, or 13 of the Bankruptcy Code

                            determining whether a reorganization plan has been filed by the PRP

                            identifying the bar date for the proof of claim.

                     Sending all initial notices regarding any bankruptcy proceedings to the OE
                     attorney at Headquarters

                     Providing assistance to ORC and DOJ in the Agency's efforts to establish
                     its proof of claim

              •       Providing assistance in preparing referrals to DOJ for filing proofs of claim
                     and other necessary documents.

              If the PRP has actually filed a petition for bankruptcy, DOJ and ORC will have the
              responsibility of obtaining the necessary bankruptcy documents to establish the
              Agency's  proof of claim.  In most cases, the RPM will have a limited role in the
                                         -23-

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           bankruptcy proceedings.

Environ-    As a practical rule, a bankrupt party's estate does not have sufficient assets to satisfy
mental     all of the creditors' claims.  However, if the Agency's claim is treated as a priority, the
Claims as  claim must be fully satisfied before the other  creditors receive any money.
Priorities
           EPA's cost recovery actions can be treated as a priority if the Agency can establish
           that the costs were administrative costs, or that a Federal lien has been filed against
           the PRP's property.  For example, administrative costs are incurred when EPA incurs
           costs for responding to the release on the debtor's property after the bankruptcy petition
           has been filed. A Federal lien for cleanup costs is created under section 107(1) of
           CERCLA. The lien continues to be enforced  against the property until the liability is
           either fully satisfied, or the claim becomes unenforceable by operation of the statute of
           limitations.

           References

           OE, "Guidance on Federal Superfund Liens" (September 1987).

           OE, "Guidance Regarding CERCLA Enforcement Against Bankrupt Parties" (May 1987).

           OE, "Revised Hazardous Waste Bankruptcy Guidance" (May 1986).

           "Coordination Guidance of Agency Involvement in Bankruptcy Proceedings in RCRA and
           CERCLA Enforcement" (May 1988).
                                      -24-

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4.   Planning
a  Budgeting
H  PLANNING AND REPORTING REQUIREMENTS

Cost recovery planning should be consistent with the priorities identified in the cost
recovery strategy and should consider sites with pending expiration of the statute of
limitations.  In selecting sites for cost recovery action, RPMs should consult the Cost
Recovery Category Report (CRCR/ENFR-46) on the CERCLIS reports menu.  This
report identifies sites which are eligible for cost recovery action (e.g., remedial starts,
completed removals over $200K) and also sorts the sites by statute of limitations dates.
It also shows any planned, ongoing or completed cost recovery action at the site.

When sites have been selected, the sites should be targeted and tracked through the
SCAP/STARS  process. It is important to note that STARS credit is  not given for sites
with expenditures under $200K.  Information on the expenditures at the site can be taken
from either the CRCR or the Cost Documentation system maintained by the Financial
Management Officer in your region. The system maintained  by the FMO (and described
in the Section on Cost Documentation) will provide detailed documentation of both direct
and indirect costs.

Funding for cost recovery activity is part of the Enforcement Case Budget.  Data on the
case budget has recently been incorporated into CERCLIS/WasteLAN.
C.  /teport/ng     Cost planning, reporting and tracking relies on CERCLIS/WasteLAN, the national data
    Requirements  base.  The data base incorporates information on response and enforcement actions at
                  sites and is the source for CRCR, SCAP and STARS reports.  Current and accurate
                  data are essential for the cost recovery process to be successful.

                  All enforcement activities associated with cost recovery (e.g. demand letters,  107
                  referrals, settlements) and the amounts sought, achieved or written off in the cost
                  recovery process must be reported in CERCLIS/WasteLAN.  RPMs and OSCs must
                  work closely with IMCs, Cost Recovery Coordinators and  Headquarters cost recovery
                  staff to insure that data are accurately entered. The information on sites may be
                  recorded on Site Information Forms (SIFs).  Your IMC can advise you as to the existing
                  procedure(s) in your region.

                  Familiarity with the CERCLIS/WasteLAN  system will enhance your ability to  utilize the
                  reports generated by the system and to keep the system current. Headquarters staff
                  have prepared numerous guidances which provide instruction on data entry and reporting.
                  They also offer courses which provide an overview of the CERCLIS/WasteLAN system.

                  RPMs/OSCs should ensure that target dates for demand letters, negotiations, referrals,
                  decisions not to pursue cost recovery, and other enforcement activities are recorded in
                  CERCLIS/WasteLAN.  Pre-SARA settlements should be reviewed to determine if
                  CERCLIS/WasteLAN should be updated with information pertaining to the
                  reimbursement of oversight costs. If the Regions enter the data in a timely manner,
                  CERCLIS/WasteLAN is capable of producing several classes of enforcement activity
                  reports as shown in Exhibit XII-4.

                  Exhibit XII-5 provides an example of a completed SIF for section 107 or 106/107 litigation.
                  The RPMs should complete the SIF using the sample outline of fields and values:
                                            -25-

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A.     Litigation Type Code/Name (SV = Section 107 or
       CL = Section 106/107 or CB = Claim in Bankruptcy)
B.     Lead (FE = Federal Enforcement)
C.     Plan start/complete date (FYQ, start -- planned referral date; complete -
       planned date for case resolution)
D.     Actual  start/complete date (MM/DD/YY, start -- date the package is
       referred/signed by the RA; complete -- date the case is resolved)
E     STARS Target Status (P = Primary, A = Alternate)
F.     SCAP  Note  (Comments on litigation)
G.     Judicial/Civil Type (N = New, A = Amend)
H.     Number of Defendants named in the referral package (7)
I      Enforcement Activity Outcome Code/Name (CD = Consent  Decree)
J.     Statutes (Section 107 of CERCLA,  include all statutes which are cited in the
       complaint)
K.     Remedy Operable Unit (Operable Unit addressed by cost recovery, there
       can be multiple)
L.     Remedy Type/Name and Sequence Number (V01 = Cost Recovery for
       RI/FS,  there are other types of remedies)
M.     Remedy Qualifier
N.     Milestone Code/Name ( RJ = Received at to DOJ, Fl = Case Filed, to be
       entered by HQ)
0.     Milestone Actual Completion Date (MM/DD/YY)
P.     Financial Requirements:
       1.      Financial Type/Name (F = Federal Cost Recovery, see below for G
              = Planned)
       2      Financial Amount (Amount sought in cost recovery action)
Q.     OE Case Name
R.     OE Case Number
S.     DOJ Case Name
T.     DOJ Case Number

The start date for a section 107 or section 106/107 referral is the date the Regional
Administrator signs the Referral Transmittal Letter sending the referral to DOJ or HQ.

The definition of a section 106 or 106/107 case resolution is the conclusion of a section
106 judicial action that fully addresses all claims in the complaint. Case resolution is
credited when:

       A settlement is entered in the court fully addressing the complaint with all parties

       The case is withdrawn or dismissed, or

•      A trial has concluded and judgment entered fully addressing the complaint.

The definition of a section 107 case resolution is the conclusion of a section 107 cost
recovery judicial action that fully addresses all claims in the complaint.  Credit is given
when:
                          -26-

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       A settlement is entered in the court fully addressing the complaint with all parties
       The case is withdrawn or dismissed,  or
       A trial has concluded and a judgment  reached.
The measure of "Cost Recovery Dollars Achieved" includes:
       Litigation (upon entry of a judgment)
       Settlement  (upon referral of a CD by the Region to HQ or DOJ)
•      Administrative order (upon execution of last signature by EPA or the PRP)
       Administrative settlements
       Bankruptcy settlements (by payment)
       Recovery of oversight costs (upon billing).
See the annual SCAP Manual for more complete information.
Case budget money needed to support cost recovery referrals should be entered as a
planned obligation (financial type of G), and a financial amount should be the amount of
funds needed to support the activities associated with the case for the fiscal year. If no
specific information  is available use the pricing factor times the number of ongoing
quarters.  As a reminder, funds for expert witnesses are provided to DOJ through the
IAG.
                          -27-

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Regulation


Policies
Guidance
IV.  REFERENCES

54 PR. 23174 "Arbitration Procedures for Small Superfund Cost Recovery Claims" (May
30,1989).

OSWER Directive 9835.0, "Interim CERCLA Settlement Policy" (December 1984).

OSWER Directive 9832.5, "Policy on Recovering Indirect Costs in CERCU Section 107
Cost Recovery Actions" (June 1986).

Comptroller Policy Announcement 87-17, "Interest Rates for Debts Recoverable Under
the Superfund Amendments and Reauthorization Act of 1986" (September 1987).

OSWER Directive 9891.1-1a, "Procedures for Transmittal of  CERCLA and RCRA Civil
Judicial Enforcement Case Packages to Headquarters (Unterberger/Diamond) (June
1989).

OSWER Directive 9835.11-1, "Model Litigation Report for CERCLA Sections 106 and 107
and RCRA Section 7003" (June 1989).

OSWER Directive 9834.7-1 B, "Methodologies for Implementation of CERCLA Section
122(g)(1)(A) De-Minimis Waste Contributor Settlements" (December 1989).

OSWER Directive 9832.3-1 A, "Cost Recovery Actions/Statute of Limitations" (June
1987).

OSWER Directive 9832.1, "Cost Recovery Actions Under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)" (August
1983). [This guidance is also referred to as "The 1983 Cost Recovery Guidance"].

OSWER Directive 9832.0, "Cost Recovery Referrals" (August 1983).

OSWER Directive 9832.12, "Guidance on Cost Recovery Strategy" (July 1988).

OSWER Directive 9832.11, "Guidance on Documenting Decisions Not to Take Cost
Recovery Actions" (June 1988).

OSWER Directive 9832.12, "Guidance on Federal Superfund Liens" (September 1987).

OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for Selection of
CERCLA Response Actions" (December 3,1990).

OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).

OSWER Directive 9834, "Interim Guidance on Settlements with De Minimis Waste
Contributors under Section 122(g) of SARA" (June 1987).

OSWER Directive 9012.10-A, "Revision  of CERCLA Civil Judicial Settlement Authorities
                                          -28-

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                 Under Delegations 14-13-B and 14-14-E" (June 1988).
                 OSWER Directive 9832.6, "Small Cost Recovery Referrals" (July 1985).
                 FMD, "Historic Site-Specific Cost Reports in Superfund Contracts Active Prior to
                 October 1,1985" (June 26,1989).
                 FMD, "State Superfund Financial Management and Record-Keeping Document" (August
                 1987).
                 OARM, "Superfund Financial Management and Recordkeeping: Guidance for Federal
                 Agencies" (January 1989).
                 OE, "Draft CERCLA RD/RA Settlement Negotiations Checklist" (January 1988).
                 OWPE, "Draft Guidance on Reimbursement of Oversight Costs" (June 1988).
                 OWPE, "Draft Guidance on Written Demand for Recovery of Costs Incurred Under
                 CERCLA" (August 28, 1990).
                 OSWER Directive 9834.4-A, "Guidance on Use and Enforcement of Information Requests
                 and Administrative Subpoenas" (August 1988).
                 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  Perspective Purchasers of Contaminated Property" (June 6,1989).
                 OE, "Draft Guidance, Procedures for Administrative Settlements under Sections
                 122(h)(1) and (4) of CERCLA" (October 1987).
                 OE, "Draft Procedural Guidance on Treatment of Insurers Under CERCLA" (November
                 1985).
                 Office of the Administrator, "Guidance on the Use of Alternative Dispute Resolution in
                 EPA Enforcement Cases" (August 1987).
                 OE, "Guidance Regarding CERCLA Enforcement Against Bankrupt Parties" (May 1987).
                 "Revised Hazardous Waste Bankruptcy Guidance" (May 1986).
                 OSWER Directive 9834.3-2a "PRP Search Supplemental Guidance for Sites in the
                 Superfund Remedial Program" (June 16,1989).
Manuals          OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1987).
                 "OSWER Directive 9832.0-1 A, Procedures for Documenting Costs in CERCLA section
                 107 Actions (January 1985) [also referred to as "The Cost Documentation Procedures
                 Manual"].
                                          -29-

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                 OARM, Superfund Indirect Cost Manual (March 1986).
Contacts         The CERCLA Enforcement Division's Cost Recovery Branch: (FTS) 398-8454.
                 Cost recovery referral:  Attorney  Advisors, Waste Division of OE:  (FTS) 475-7735.
                                          -30-

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Appendix

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               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.
        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 postions.

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                           COMMUNITY  RELATIONS
I.     DESCRIPTION OF ACTIVITY	1

       Introduction	1
       Techniques for Effective Community Relations	1

II.     PROCEDURES  AND  INTERACTIONS	3

       A.     Community Relations Plan (CRP)	3
             Coordination with Enforcement Staff	3
             Consistency with Enforcement Actions	3
       B.     Potentially Responsible Party (PRP) Involvement	4
             Notice to PRPs	4
             Negotiations	4
       C.     Community Relations During Removal Actions	5
       D.     Community Relations During Remedial Actions	5
             Community Relations Following an RI/FS Order	6
             Proposed Plan and Public Comment	6
             Public  Notice and Comment on Consent Decrees for RD/RA	7
             Community Relations  During PRP Remediation	8
       E.     Other Enforcement Actions	8
             Injunctive Litigation	8
             Cost Recovery	8
       F.     Administrative Record	9
             Purpose of the Administrative Record	9

III.    PLANNING  AND REPORTING REQUIREMENTS	11

       A.     SCAP	11
             Range of Activities	11
             Range of Costs	11
       B.     CaseBudget	12

IV.    POTENTIAL  PROBLEMS/RESOLUTIONS	13

       A.     Volatile Public Meeting	13
       B.     Lack of Community Interest	13
       C.     PRP Involvement	13
       D.     PRP as Principal Employer	13

V.     REFERENCES	14

       Guidance	14
       Memorandum	14
       Manuals	14
       Training	14
       Contacts	14

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                               COMMUNITY  RELATIONS
Introduction
Techniques lor
Effective
Community
Relations
 I.  DESCRIPTION OF ACTIVITY

 A  site-specific and well-planned community relations effort is an integral part of every
 Superfund response. The Superfund community relations program promotes two-way
 communication between members of the public, including PRPs, and the lead government
 agency responsible for response actions. Activities are conducted throughout the
 planning and implementation of Superfund responses to encourage communication
 between government staff and the public.  Exhibit XIII-1 illustrates the relationship of
 community relations activities to the Superfund technical process.

 Through experience with the Superfund program, EPA has found that its decision-making
 ability is enhanced by actively soliciting comments and information from the public.  This
 chapter discusses community relations when an enforcement action is initiated or on-
 going at an enforcement or  PRP-lead site.

 There are many techniques that can be used in a site-specific community relations
 program. EPA has found that there can be no set formulas in deciding which techniques
 to use. Each community is different.  The issues of importance to the public, the level of
 concern, the history of public involvement, and the socio-economic background of the
 community vary from site to site. Community relations efforts must, therefore, be
 tailored to the distinctive needs of each community.  They must also be tied to the
 technical response schedule and enforcement considerations for the site. Some general
 recommendations, however, for dealing with the community include:

 •   Create the perception and actualization of an open process

 •   Involve the community early in the process

 •   Provide more  information rather than less

 •   Encourage bi-monthly or quarterly meetings in areas of intense community
    awareness.

 Specific techniques for ensuring open and candid communication include small group or
 one-on-one meetings, and frequent telephone calls. Fact sheets, public meetings,
 newsletters and press releases also are often appropriate to ensure citizen  understanding
 of  issues and activities associated with a response.  When large public meetings are
 needed, they must be very carefully planned to enhance productive communication.  The
 timing, benefits and limitations of each technique are described in depth in OSWER
 Directive 9230.0-03, Community Relations in Superfund:  A Handbook (March 1988),
Appendix A.  (Hereafter referred to  as the Community Relations Handbook).

The formal plan for EPA community relations activities at a  Superfund site as required
by the  NCP is the Community Relations Plan (CRP). This plan provides an overview of
the community relations program planned for a site; the historical, geographical, and
                                         -1-

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technical details explaining why the site is on the NPL; a description of the community
and its involvement with the site; details on community relations approaches to be taken;
and the timing of suggested activities.  There are typically two appendices to the CRP:
a mailing list of interested parties and suggested locations for meetings and information
repositories.

For enforcement sites, EPA Regional offices are responsible for developing community
relations plans and associated activities.  In cases in which EPA has negotiated an order
with responsible parties, EPA is designated as the lead agency for community relations.
If the State negotiates the order, then the State will have the lead for community
relations, with EPA oversight. However, the conduct of community relations at State-
lead sites is negotiable with EPA. The following sections of this chapter highlight these
responsibilities by describing:

        Procedures and interactions of key community relations players during
        enforcement actions

        Planning and reporting requirements for community relations during enforcement
        actions

        Potential problems that may arise during community relations activities, and
        potential resolutions.
                        -2-

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A.  Community
    Relations
    Plan (CRP)
    Coordination
    with
    Enforcement
    Staff
   Consistency
   with
   Enforcement
   Actions
 II. PROCEDURES AND INTERACTIONS

 Information gathered during community interviews provides the basis for the development
 of site-specific Community Relations Plans (CRPs).  If individuals conducting the
 community interviews actively seek information about public concerns and informational
 needs, the communication activities will be better targeted to the specific needs of the
 people in the community. The process for conducting these interviews involves several
 steps, as detailed in Chapter 3 of the Community Relations Handbook.

 In addition, discussions about the site should be held with Regional technical and legal
 staff in advance of the  interviews, so that the community relations staff can be
 apprised of any situations that might impact these interviews.  Regardless of whether
 viable PRPs have been identified, the RPM should participate in the community
 discussions.

 To incorporate the full range of views, lead agency staff may consider  interviewing
 PRPs in the community. The EPA enforcement team for the site will determine whom to
 interview. This team is comprised of a Community Relations Coordinator (CRC), the
 On-Scene Coordinator (OSC), Regional Counsel, and the RPM, as well as equivalents at
 the State level when the State has the lead.

 Coordination activities among the CRC, OSC, Regional Counsel, and RPM depend on the
 site-specific situation. Adequate planning is crucial to prevent the release of information
 that might be detrimental to the settlement and/or litigation process.  Community
 relations plans prepared for sites with viable PRPs should receive  input  from all members
 of the enforcement team who are directly affected by the scheduled activities  in  the
 CRP. For example, attorneys should review the accuracy of any  legal  information, the
 RPM should review the accuracy of any technical information, and the CRC should
 approve the appropriateness of the community relations techniques suggested in the
 CRP.

 The CRC is ultimately responsible for ensuring that the community relations
 requirements of CERCLA are implemented.  Therefore, final approval of the CRP should
 be by the CRC, with concurrence on specific sections by members of the team.

 Community relations activities outlined in  a CRP for an enforcement site should be
 consistent with the settlement process and the likely schedule of enforcement actions.
 Community Relations staff may wish to document EPA's approach to coordinating  and
 sharing information with PRPs within the  CRP. However, any special conditions or
 Agency interaction with the PRPs should  be spelled out in the administrative order or
 consent decree, not in the CRP.

The public must be told early on if PRPs are willing to participate in implementing the
CRP.  The Community Relations staff can do this by preparing a fact sheet or disclosing
information at a public meeting.  Discussions about the PRPs prior  to signing a consent
agreement, however, may cause delays in the negotiations.  It is preferable to delay
discussing details of  PRP involvement with the site until some agreement is signed or
                                         -3-

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                  action taken. Premature disclosures may cause tension and mistrust between Agency
                  staff and the PRP.

                  Assuming a site has not been referred for litigation, the CRP needs to inform the public
                  of the possibility of litigation. Litigation generally does not occur until after the remedy is
                  selected.  EPA staff, therefore, may need to explain at public meetings or in fact sheets
                  that pending or planned litigation may impose constraints on the release of certain
                  information or conduct of community  relations activities.  Community Relations staff
                  may choose to  describe the litigation process, and discuss the potential effects of
                  litigation on  the scope of community relations activities. If the site is referred later for
                  litigation, the CRP should be modified to provide that statements about the litigation,
                  other than public information that can be ascertained from court files, be cleared with the
                  Department of Justice before issuance. The Regional Counsel team members will be the
                  focal  point for that clearance, as well as for consulting with DOJ on statements
                  concerning site status, such as investigations, risk assessments and response work.  The
                  plan will be amended to reflect any potential effects this could have on community
                  relations activities.

ft  Potentially    EPA is the lead agency for developing and implementing community relations activities at
    Responsible    a PRP-lead  site. A PRP may assist in the implementation of community relations
    Party (PRP)  activities at the discretion of the Regional office. The Regional office, however, will
    Involvement   oversee PRP community relations  implementation. Specifically, PRPs may be involved in
                  community relations activities at sites where  they are conducting either the RI/FS, or
                  the RD/RA,  or both.  If a PRP will  be  involved in community relations activities, the CRP
                  should reflect that  involvement. In these cases, the PRP(s) may wish to  participate in
                  public meetings, or in the preparation of fact sheets.  EPA, however, will not "negotiate"
                  with PRPs on the contents of press releases, fact sheets, or other documents distributed
                  for public consumption.

    Notice to      Notice letters are used to inform PRPs of their potential liability and provide an
    PRPs         opportunity for them to enter into negotiations, which are intended to result in PRPs
                  conducting or financing response activities. The negotiation process is discussed in detail
                  in Chapter V, RI/FS Negotiation/Settlement and  Chapter VIII, RD/RA
                  Negotiation/Settlement.

    Negotiations   Negotiations are generally conducted in confidential sessions between the  PRPs and the
                  Federal Government.  Neither the public, nor the technical advisor (if one has been hired
                  through a technical assistance grant by a community) may participate in negotiations
                  between EPA, DOJ and the PRPs  unless everyone agrees to allow such participation.
                  Otherwise the ability of the parties to assert confidentiality at some later date  may be
                  affected.

                  Special educational efforts should  be conducted prior to PRP negotiations to inform the
                  public that little if any information regarding negotiations will be available to the public
                  during negotiations.

                  The confidentiality of statements made during the course of negotiations is a well-
                  established principle of the American legal system. Its purpose is to promote a thorough
                                          -4-

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C.  Community
    Relations
    During
    Removal
    Actions
D.  Community
    Relations
    During
    Remedial
    Actions
and frank discussion of the issues between the parties in an effort to resolve differences.
Confidentiality not only limits what may be revealed publicly, but also ensures that
offers and counter-offers made in the course of negotiations may not and will not be used
by one party against the other in any ensuing litigation.

PRPs may be unwilling to negotiate without the guarantee of confidentiality.  They may
fear public disclosure regarding issues of liability and other sensitive issues that may
damage their potential litigation position or their standing with the public. This
expectation of confidentiality necessarily restricts the type and amount of information
that can be made public.  Community relations staff should consult with and obtain the
approval of other members of the technical enforcement and Regional Counsel team
before releasing any information regarding negotiations.  If the site has been referred or is
in litigation, DOJ approval should also be obtained.

EPA encourages public participation during removal actions to the extent possible.
However, removal actions may not always allow the same degree of participation as
remedial actions.  By their nature, the situations that require emergency removals do not
allow for extensive public involvement. Adjustments to the community relations process
must be made to accommodate necessary time constraints.  The NCP requires that a
Community Relations Plan be prepared for all removal actions lasting longer than 120
days. The  NCP also requires a public comment period of at least 30 days for removals
with a planning period of six months or more before the initiation of on-site activity. For
removals with a planning period of less than six months before the initiation of on-site
activity, a public comment period may be held when appropriate.  The public comment
period, if held, begins when the administrative record file  is made available for public
inspection.

The enforcement program encourages PRPs to conduct or pay for removal actions.  At
any time, the Agency may arrive at an agreement with the PRPs to conduct a removal,
which usually is embodied in an Administrative Order on Consent (AOC).  EPA also may
issue a Unilateral Administrative Order (UAO) to compel PRPs to undertake a removal
or other action. In addition, under limited circumstances, the Agency may refer the
action to DOJ, seeking a court order to secure the removal.

A unilateral administrative order or administrative order on consent is a public document
and should be made available to the affected community, through the Administrative
Record file. In addition, community relations staff, the RPM, and ORC should discuss the
terms of the order with and describe the removal action to  citizens, local officials, and
the  media.  If the PRP subsequently fails to respond to the  order, any public statements
or information releases regarding the status of actions at the site or prospective EPA
actions should first be cleared with appropriate Regional technical  and legal  enforcement
personnel.

Community relations activities should be planned as early in the enforcement process as
possible. Generally  this occurs before issuing an RI/FS special notice letter. Meetings
with small groups of citizens, local officials and other interested parties are extremely
helpful for sharing general information and resolving questions. These meetings also  may
serve to provide information on EPA's general enforcement process.
                                          -5-

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               Distribution of general Superfund public information materials, such as the fact sheet,
               "The Superfund Enforcement Process: How it Works," may be beneficial to community
               relations efforts.  A discussion of how EPA encourages settlements also may be
               appropriate at this time.

Community     RI/FS settlements usually are resolved as AOCs, which do not normally require public
Relations       comment opportunities. However, the RI/FS workplan triggers the implementation of CR
Following an    activities. When the workplan is complete, a "kick-off1 meeting with the public may be
RI/FS Order    conducted in order to present the final workplan and explain next steps.  If held, program
               and community relations staff should make  it clear that EPA approved the workplan;
               announce how the PRP will be performing the RI/FS; explain EPA's confidentiality
               requirements; and explain where the Administrative Record files will be or are located.
               The Administrative Record file should be available at a central Regional location, and at
               or near the site. If a public meeting is  held it should also be documented in the
               Administrative Record files. Since it contains information that the lead Agency used in
               selecting a final remedy, the Administrative Record file should be used as a tool to
               facilitate public involvement.

Proposed       Once the RI/FS has been completed,  the Agency will issue the proposed remedial action
Plan and       plan, and publish a notice summarizing the plan and announcing a public comment period
Public          on both  the RI/FS and the proposed plan. At a minimum, the notice must be published in a
Comment      major local newspaper of general circulation. A formal comment period of not less than
               30 calendar days must be provided for the public to submit oral and written comments
               and the  NCP provides that upon timely request, the lead agency will extend the public
               comment period by a minimum of 30 additional days.

               CERCLA requires that an opportunity for a public meeting be offered during the comment
               period, and that a transcript of the meeting on the proposed plan be available to the
               public.  The transcript must be made  available to the public in the Administrative Record
               file, and may be placed in the information repositories and distributed on request.
               Chapter 4 of the Community Relations Handbook outlines these specific public
               participation requirements.

               Once the public comment period on the proposed plan has closed, a Responsiveness
               Summary is prepared that 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 how the
               comments of members of the public were taken into account as an integral part of the
               decision-making process. A Record of Decision (ROD) is then issued by EPA as the final
               remedial action plan for a site. Both the ROD and the Responsiveness Summary are
               placed in the Administrative Record file and information repositories.  In addition, the
               Responsiveness  Summary  may be distributed to  all those who commented, and to the
               entire site mailing list. Chapter 4 of the Community Relations Handbook provides further
               information on requirements for public notice and availability of the ROD and
               Responsiveness Summary.
                                      -6-

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Public Notice   If a negotiated settlement for remedial action under CERCLA section 106 is reached, it
and Comment  will be embodied in a consent decree to be entered by the court.  CERCLA section
on Consent    122(d)(1) requires the use of consent decrees as the vehicle of agreement between the
Decrees for    Federal Government and PRPs on remedial actions taken under section 106 of CERCLA.
RD/RA       CERCLA section 122 contains specific public participation requirements. DOJ lodges the
              consent decree with the court, publishes a notice of the proposed consent decree in the
              Federal Register (FR), and offers an opportunity for non-signatories to the agreement to
              comment on the proposed consent decree before its entry by the court as a final
              judgment. The public comment period must be not less than 30 calendar days in length.
              During that time, the consent decree may be withdrawn or modified if comments
              demonstrate it to be inappropriate, improper or inadequate.

              In order to ensure that public comment opportunities are extended to interested parties,
              EPA staff routinely prepares a press release to be issued after the consent decree has
              been lodged as a proposed judgment with the court.  DOJ should notify Regional Counsel
              for the particular site and provide a copy of the FR notice of the decree. Regional
              Counsel should  inform the RPM and CRC of this event. Community relations staff can
              then mail copies of the press release or copies of the FR notice to persons on the site
              mailing list. The press release should indicate where copies of the consent decree may be
              obtained. The procedures for public comment on the consent decree, as well as a contact
              name for  obtaining further information should also be announced. The public notices and
              press releases for the consent decree may be combined, if appropriate.

              Communications with the public should focus on the remedial provisions of the settlement
              agreement. Details of the negotiations, such as the behavior, attitudes, or legal positions
              of PRPs,  any compromises  incorporated in the settlement agreement, and evidence or
              attorney work-product material developed during negotiations, must remain confidential.

              If a negotiated settlement for RD/RA results in actions fundamentally different from
              those selected in the Record of Decision (ROD), the ROD will have to be amended. An
              amendment to a ROD also requires a public comment period, which should coincide, if
              possible, with the comment period for the consent decree.' Comments must be addressed
              in the Responsiveness Summary for the ROD Amendment, not the consent decree.

              A public meeting may be held during the public comment period on the consent decree, at
              the site team's discretion.  Regional staff must offer the opportunity for a public meeting
              when there are significant community issues  or concerns, or for other reasons which are
              determined by and based upon the judgment of EPA Regional staff.  If held during the
              public comment period, these meetings need to be documented, and significant oral
              comments received during the meeting must be addressed in a Responsiveness
              Memorandum on the consent decree.

              Once the  public comment period  on the proposed consent decree has closed, DOJ staff, in
              cooperation with EPA staff, consider each significant comment and write the
              Responsiveness Memorandum.  Assuming that EPA and  DOJ continue to believe the
              decree should be entered, DOJ will then file a Motion to Enter with the court, together
              with the Responsiveness Memorandum, the comments received, and the consent decree
              itself. The Responsiveness  Memorandum and Motion to Enter the consent decree are
                                     -7-

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E.  Other
    Enforcemenf
    Actons
               released to the public at the same time. The Regional team will use information
               repositories, Administrative Record files, and/or other means to make these documents
               available to the public.

Community    EPA retains responsibility for community relations during a PRP-managed cleanup
Relations       conducted pursuant to a consent decree or other enforcement order. The scope and
During PRP    nature of community relations activities will be the same as for Fund-lead response
Remediation    actions.  When PRPs participate  in community relations activities at the site, EPA and
               PRP roles need to be determined  and explicitly defined.  Where a PRP has not been
               involved in the initial stages of implementing the community relations plan, but shows
               sufficient interest, commitment, and capability to warrant some level  of participation,
               EPA should re-evaluate its role in conducting community relations activities.  In that
               case, a new CRP may be developed at the discretion of the Regional team. PRP roles in
               conducting community relations may be addressed in the consent decree or other
               enforcement orders.

               Section 122(i) of CERCLA requires the lead Agency to publish a notice of proposed
               settlements for  administrative orders on consent under section 122(g)(4) (de minimis
               settlements) and under section I22(h) (cost recovery settlements/arbitration). The
               notice published in the Federal Register must identify the facility concerned and the
               parties to the proposed settlement.  A public comment period of not less than 30 days is
               required for these agreements. Regional staff should provide notice (e.g., a press  release,
               a notice to persons on the site mailing list, or an advertisement in the newspaper of local
               circulation) to supplement the FR notice.  For further information on response to
               comments see Chapter 6 of the Community Relations Handbook.

Injunctive       At any point in  the enforcement process, a case may be referred to DOJ for litigation,
Litigation       and community relations activities may change in scope.  If litigation is initiated early in
               the enforcement process, the CRP for the site may need to be modified substantially. If
               litigation is initiated late in the process (e.g., after the conclusion of the RD/RA special
               notice moratorium) the plan will require only the addition of the litigative process.

               When a case has been referred to DOJ, community relations activities at the site  should
               be re-evaluated by the site team,  and changes necessary to accommodate
               confidentiality should be agreed upon by the site team, including DOJ.  See Chapter 6 of
               the Community  Relations Handbook for information on changes in public disclosure.

Cost          If a Fund-financed cleanup is conducted,  EPA may  initiate litigation to recover the costs
Recovery       of response.  Since cost recovery generally follows removal actions or initiation of
               remedial action, community interest in the site usually will have lessened, unless other
               operable units remain to be addressed.

               A spokesperson chosen by the site team,  in coordination with DOJ, should take the lead
               in responding to inquiries regarding current site conditions. All inquiries regarding litigation
               should be forwarded to the EPA cost-recovery team, which will prepare a response with
               the approval of DOJ.
                                          -8-

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F.   Administra-
    tive Record
    Purpose of
    the
    Administra-
    tive Record
Section 113(k)(1) of CERCLA requires the establishment of an Administrative Record
file upon which the selection of a response action is based. It also requires that a copy of
the Administrative  Record file be located at or near the site. Section 113(k)(2) of
CERCLA requires that the Agency promulgate regulations outlining procedures for
interested persons to participate in developing the Administrative Record file.  The
Agency has addressed these statutory requirements through revisions to the NCR and
accompanying guidance documents.

From the remedial investigation through the selection of remedy, the Administrative
Record file will be available  for public inspection at a central Regional location and at or
near the site.  The information in the file is crucial to the public in that it contains  the
information upon which the  lead Agency bases its decisions toward selecting a final
remedy.  The site team should use the Administrative Record file as a tool for facilitating
public involvement.

Publicly-available documents concerning response selection must be made available to all
interested parties at the same time.  EPA staff should avoid situations in which local
residents are provided opportunities to review and comment on site information while
other members of the public are not provided the same opportunities. Similarly, if EPA
requests PRPs to review a plan, EPA should enable other members of the public to
review that plan as well. When a kick-off meeting is scheduled, the public, including
residents and PRPs, should  be invited.

The Administrative Record file and CRP for a remedial action should be made available
to the public no later than the time the remedial investigation phase begins, which  is
usually when the final RI/FS work plan is approved. The  timing for establishing the
Administrative Record file for a removal action will depend on the nature of the removal.
As outlined in  the NCP, for  removals with a planning period of at least six months before
on-site activities will be initiated, the record file must be made available to the public
when the engineering  evaluation/cost analysis (EE/CA) or its equivalent is available for
public comment. For removals with a planning period of less than six months, the  record
file must be available to the public no later than 60 days after the initiation of on-site
cleanup activity.

The Administrative Record has a two-fold purpose.  First,  the record provides an
opportunity for the public to  be involved in the process of selecting a response action.
During the selection of a response action, information is reviewed and made available in
the publicly accessible Administrative Record file. Second, the Administrative Record
represents the information that was available to and considered by the Agency at the
time of its decision.  If the Agency is challenged concerning the adequacy of a response
action, judicial review of a response action selection will be limited to the Administrative
Record. A complete Administrative Record for judicial  review will allow the Agency to
avoid costly and time-consuming litigation over response selection.  The public should be
advised that comments must be submitted in a timely manner in  order to be considered.

The CRC's duties concerning the relationship of the Administrative Record file to  the
information repositories, public notices, and public comments are described in Chapter 6
of the Community Relations Handbook. Additional information on the roles of the CRC,
                                          -9-

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OSC, RPM, and Regional Counsel in the development and maintenance of the
Administrative Record can be found in Chapter XV, Records Management and in OSWER
Directive 9833.3A-1 "Final Guidance on Administrative Records for Selection of
CERCLA Response Actions" (December 3,1990).
                      -10-

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A.  SCAP
    Range of
    Activities
    Range of
    Costs
III. PLANNING AND REPORTING REQUIREMENTS

SCAP planning activities take place at the beginning of each fiscal year.  The site team,
including the RPM, CRC, and Regional attorney decide the course of community relations
activities for each site by quarter. For PRP-lead sites, enforcement case budget
(described below) provides funding for community relations.

Site-specific characteristics and the level of contractor involvement are key factors
affecting the costs of community relations programs at Superfund sites.  The unique
features of each Region and the specific characteristics of each site necessitate
individualized community relations programs. Such differing programs in turn require
changes in the level of involvement of a community relations contractor from site to site.

The range of activities conducted for Superfund community relations may include
developing brochures, writing CRPs, interviewing members of the community, preparing
fact sheets, organizing information repositories, organizing public meetings, issuing public
notices, developing ROD responsiveness summaries, holding small group meetings,
translating information for communities and conducting workshops. The use of
contractors to conduct any of these activities is left to the discretion of the Regions in
general and the site team in particular.

As stated above, the range of costs varies from site to site.  Higher costs can be
expected at sites that are more complex, and, thus, more time consuming. A lack of
EPA staff for  technical support has created  a demand for contractors to assist in
conducting community relations activities. This assistance will have to be considered
when establishing budgets  for community relations support at Superfund sites.

A variety of conditions and circumstances may influence the costs of performing
community relations activities at Superfund sites.  The following factors may influence
the level  of contractor involvement and costs of community relations  activities:

       Different Regional preferences and expectations

       Political, social, and economic differences among sites

       Level of technical complexity

       Stage of the remedial response action

       Level  of public involvement

•       Size of geographic area

       Extent of travel requirements

•       Amount of other direct costs

       Time allowed to prepare a deliverable.
                                         -11-

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                  Exhibits XIII-2 and XIII-3 illustrate the site-specific nature of community relations activities
                  and costs. These exhibits outline unique factors that should be considered in determining
                  the cost of community relations activities.  For additional information on the cost of
                  contractor support for community relations activities, see the January 6,1988
                  Memorandum from the Office of Emergency and Remedial Response entitled, "Using the
                  Range of Contractor Costs for Superfund Community Relations Activities  (FY 87)
                  Matrix."

B.  Case Budget  The enforcement case budget provides funds for community relations for RI/FS and
                  RD/RA activities when a PRP-lead is expected. The CRP should be funded concurrently
                  with the RI/FS negotiations and can be combined into one Technical Enforcement Support
                  contract (TES) work assignment. Community relations implementation (CRI) should be
                  funded concurrently with the RI/FS oversight work assignment.  A revised CRP should
                  be funded concurrently with the RD/RA negotiations and CRI for the RD/RA oversight.
                  The enforcement case budget does not fund community relations at Federal, State or
                  Federal-Enforcement lead sites.  The community relations lead should be designated as
                  RP for activities funded by the enforcement case budget.
                                         -12-

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                  IV.  POTENTIAL PROBLEMS/RESOLUTIONS
E  Lack of
    Community
    Interest
                  This section discusses specific problems that may occur during community relations
                  activities at enforcement sites, and suggests methods for resolving these issues.

A.  Volatile Public  Keeping citizens informed from the beginning of the process will help to avoid volatile
    Meeting        situations.  However, perceived health and safety concerns posed by a hazardous waste
                  site can sometimes lead community members to react emotionally during public meetings
                  and informational briefings. Meeting participants can become confrontational and
                  defensive when discussing proposed solutions to a site, particularly if technical
                  information is not completely understood. To alleviate this situation, EPA technical and
                  legal staff may use a neutral, third-party moderator to facilitate a useful exchange of
                  information during a meeting.  A moderator can help set the tone for a meeting by setting
                  forth guidelines at the outset.  When a moderator serves as the intermediary between
                  citizens and the lead agency, and rephrases questions posed by citizens for EPA officials
                  to respond to, the meeting may run more efficiently.

                  Through initial contacts with a site community, EPA may discover that citizens have
                  little knowledge of or interest in site activities. In this situation, it may be necessary to
                  contact a broader group of community members to  ensure that undetected concerns do
                  not get overlooked. Additional groups that may be contacted include: clergy, League of
                  Women Voters, civic groups, garden clubs, neighborhood associations and professional
                  organizations.  Information on these groups is usually available from the local Chamber of
                  Commerce.  If, after contacting a broad range of potential interest groups, no significant
                  interest or concerns are identified, community relations staff should devote time to
                  developing and implementing extensive outreach efforts.

                  As outlined in Chapter 6 of the Community Relations Handbook, PRPs may participate in
                  community relations implementation activities. This may include developing independent
                  fact sheets and brochures on cleanup actions. In this situation, the RPMs should make it
                  clear to the community what materials have been produced by EPA  and which have been
                  prepared by the PRP with review  by EPA.  Further, RPMs should work closely with
                  PRPs who wish to develop community relations materials to ensure that those materials
                  receive adequate EPA review before distribution. In addition, when  EPA produces a fact
                  sheet or other outreach document, those materials should also be distributed to the PRP.

D.  PRP as        The nature of the  environmental threat and how directly a community feels affected by
    Principal       it generally determine the  reaction of the community toward outreach activities at a site.
    Employer      In some situations, economic considerations of the residents can outweigh their
                  environmental concerns. Nevertheless, the community must be informed that PRPs will
                  be made accountable to the public for theif site. RPMs should address these fears as
                  much  as possible by emphasizing EPA's desire to present the facts about the site. For
                  example, when a PRP  is the principal employer in a town, citizens may fear losing their
                  jobs if they attend community relations meetings. Organizing meetings and interviews in
                  such a way that citizens can comfortably express their  concerns is  important.  It may be
                  more appropriate to  conduct telephone interviews rather than face-to-face interviews to
                  ensure privacy.  RPMs also may want to institute a site hotline or present information
                  request forms in the newspaper to provide anonymity. These techniques may help
                  secure the involvement of hesitant community members.
C.  PRP
    Involvement
                                         -13-

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Guidance
Memorandum
Manuals
Training
Contacts
V. REFERENCES
OSWER Directive 9836.0-1 A, "Community Relations During Enforcement Activities and
Development of the Administrative Record" (November 3,1988).
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for Selection of
CERCLA Response Actions" (December 3,1990).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing List" (February 6,
1989).
OSWER Directive 9230.0-08, "Planning for Sufficient Community Relations" (March 7,
1990).
Memorandum from OERR, "Using the Range of Contractor Costs for Superfund
Community Relations Activities (FY 1987) Matrix" (January  1988).
OSWER Directive 9230.0-3B, Community Relations in Superfund: A Handbook (March
1988).
OSWER Directive 9200.3-01, Superfund Comprehensive Accomplishments Plan (SCAP)
Manual (Annual).
"Community Relations in Superfund:  Concepts and Skills for Response Staff."  For
additional information, call FTS 398-8380.
"Community Relations During the ROD Process," FTS 398-8380.
"Community Relations at Federal Facility Sites," FTS 398-8380.
Office of Emergency and Remedial Response, Hazardous Site Control  Branch, State and
Local Coordination Branch, FTS  398-8380.
Regional Community Relations Coordinator.
                                       -14-

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                         STATE   ENFORCEMENT

I.     DESCRIPTION OF ACTIVITY	1

      Introduction	1
      Background Information	1
      Enforcement Authorities	1

II.    PROCEDURES AND  INTERACTIONS	3

      A.    The Role of the State and EPA in PRP Oversight	3
      B.    Cooperative Agreements and Core Program Funding	4
      C.    Development of the CA	6
      D.    Sections in a CA Application	6
      E    Development of the SMOA	7
      F.    Articles in a SMOA	7
      G.    EPA Approval of State Remedies; Counting State RA Starts	9

III.   PLANNING AND REPORTING REQUIREMENTS	11

      A.    SCAP	11
            Site Classification	11
      B.    CERCUSWasteLAN	12
            Activity Leads	12
            EventLeads	12
      C.    CaseBudget	13

IV.   POTENTIAL  PROBLEMS/RESOLUTIONS	15

      A.    Forum Shopping by PRPs	15
      B.    Overseeing State Oversight of PRPs	15
      C.    SCAPTargets	15
      D.    Standard Planning Time Line	15
      E    SMOA Development	15
      F.    State Challenges to RD/RA Consent Decrees	15

V.    REFERENCES	16

      Policy	16
      Regulation	16
      Guidance	16
      Manual	16
      Contacts	16

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                                   STATE ENFORCEMENT
                  I.  DESCRIPTION OF ACTIVITY

Wrodocflbn        This chapter focuses on state involvement in the Superfund enforcement process. This
                  chapter primarily addresses potential agreements and funding mechanisms between EPA
                  and states that want to be involved in the Superfund process. This information should be
                  used in conjunction with the National Oil and Hazardous Substances Pollution
                  Contingency Plan, specifically Subpart F - State Involvement in Hazardous Substance
                  Response (40 CFR  300) and Subpart 0 - Cooperative Agreements and Superfund State
                  Contracts for Superfund Response Actions (40 CFR Part 35 Subpart 0), and other
                  available EPA guidances that are cited throughout the chapter.

Background        CERCLA provides for state  involvement in selection of remedies and negotiations. EPA
Information        and a state may agree to designate a site as state-lead enforcement.  If so, the state
                  may receive funding for various enforcement activities, including (1) PRP searches; (2)
                  issuance of notice letters to PRPs; (3) negotiations with PRPs to secure their
                  commitment for site cleanup; (4) administrative or judicial enforcement actions to compel
                  PRP cleanup;  and (5) oversight of PRP response activities.

                  Participation of states in the effort toward meeting the  statutory requirements for
                  Remedial Action (RA) starts is important as both Federal- and state-lead sites can be
                  counted toward the RA start goals set forth in SARA.

                  CERCLA requires EPA to include states in the enforcement process. However, before
                  reauthorization, CERCLA did not contain a framework for EPA to involve states.
                  CERCLA now  provides for state involvement in selection of remedies and negotiations.
                  EPA's intent is to obtain more cleanups by PRPs through state enforcement.

                  This section focuses on the state  enforcement process by describing these two major
                  components of the program:

                  •       Authorities available for Federal and state enforcement, and

                         CERCLA state enforcement strategy.

                  These areas are discussed in the following sections.

Enforcement       Section 121(f) of CERCLA,  as amended by SARA, requires EPA to provide substantial
Authorities        and meaningful involvement by states in the selection, development, and initiation of
                  remedial actions undertaken within their boundaries. Subpart F of the NCP implements
                  section 121(f)(1) of CERCLA.  It specifies among other things, state and EPA
                  responsibilities for identifying state and federal ARARs, an annual process for
                  establishing priorities and identifying the lead for enforcement response and a notification
                  process for state participation in PRP negotiations.  Section 121(f)(2)(C) of CERCLA
                                         -1-

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authorizes EPA to conclude settlement negotiations with PRPs without state
concurrence.

Many states have been authorized by their legislatures to remediate releases of
hazardous substances. This authority can take many forms, from state responsibility
over non-NPL sites to authority for actions at all hazardous sites in the state. CERCLA
does not preclude states from pursuing enforcement actions under state law in the
absence of formal agreement with or lead designation  by EPA.  In turn, EPA  has the
authority under CERCLA to proceed with its own enforcement action or attempt to
intervene prior to a state settlement with or litigation against PRPs.

The enforcement strategy for state involvement emphasizes maximizing the  number of
sites that can be cleaned up by enhancing and fully utilizing state capability and
minimizing duplication of effort between EPA and the states.  Section 300.515(e)(2)(ii)
states "state concurrence on a ROD is not a prerequisite to EPA's selecting a remedy,
i.e., signing of ROD, nor is EPA's concurrence a prerequisite to a state's selecting a
remedy at a non-Fund-financed state-lead enforcement site under state law." However,
remedies must be consistent with the NCP, EPA policies and guidances to ensure
successful cost  recovery efforts and to reduce difficulties from deleting sites from the
NPL when remedies are implemented.

Section 104(d)(1) of CERCLA authorizes EPA to enter into a contract or  cooperative
agreement with capable states to take actions to respond.  Section 300.505 of the NCP
describes the requirements for EPA/state Superfund Memorandum of Agreement
(SMOA). Subpart 0 of 40 CFR Part 35 details requirements and procedures for Core
Program Cooperative Agreements, Site-specific Cooperative Agreements, and
Superfund state Contracts.
                        -2-

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A.
The Role of
the State
and EPA in
PRP
II. PROCEDURES AND INTERACTIONS

To assist EPA and individual states operating together in the Superfund program, it is
preferable to have clearly defined processes and procedures for coordination and
interaction. While either EPA or states may conduct enforcement actions against PRPs
without the other's involvement, it is in both the state's and EPA's best interests  to
coordinate such actions. However, as specified in section 122(e)(6) of CERCLA  after
EPA or PRPs pursuant to an administrative order or consent decree has initiated RI/FS
work, no PRP may undertake any remedial action at the facility unless the action is
authorized by EPA.

There is an opportunity through cooperative agreements under CERCLA for coordination
and the sharing of responsibilities between EPA and the states. EPA and states  may
interact in  one of the following arrangements:

       States participate, in a support role, in EPA-lead enforcement actions
       pursuant to section  121(f) of CERCLA. States may have primary
       responsibility for other phases of response, such as pre-remedial, remedial
       and removal.

       State assumes lead responsibility relying  on CERCLA authority through
       Cooperative Agreements  (CAs). or

       State assumes oversight responsibility  for PRPs at EPA-lead sites.

       States act under their own authority as lead agency with assistance from
       EPA through CAs which will specify EPA concurrence on the ROD and other
       major deliverables.

       States act under their own authority as lead agency, absent a SMOA or
       CA, through participation in "Annual Consultation" (see 40 CFR  Section
       300.515(h)(i)).

Another potential relationship between EPA and the states can be established
through the Core Program.  EPA provides funding for states to develop state
enforcement capability under this program.

An effective enforcement program requires a balanced approach that relies  on a mix of
Fund-financed cleanup, consent orders/decrees reached through formal negotiations, and
where necessary, litigation.  The general nature of EPA and state interaction in pursuing
PRP site cleanup commitments can best be illustrated through a discussion of required
    Oversight     oversight roles for states and EPA as well as available funding schemes.

                  Oversight roles are as (1) lead agency and (2) support agency.  The lead agency has
                  primary responsibility for planning and implementing a response under CERCLA.  The
                  support agency furnishes necessary data to the lead agency, reviews response data and
                  documents, and provides other assistance to the lead agency. A variation on the strict
                                         -3-

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a
Cooperative
Agreements
and Core
Program
Rn&g
distinction between lead and support roles is where states or EPA can have primary
responsibilities for specific tasks while the other agency has the lead for the site. Lead
agency designation is determined by EPA in consultation with the states based on
consideration of numerous factors.  It is generally preferable that enforcement lead
designation remain the same throughout the remedial process, instead of lead being
designated separately for each major event, such as RI/FS, RD/RA.

States should attempt to obtain a commitment from PRPs to pay for oversight costs
whenever negotiating with PRPs prior to requesting funds from EPA.  Later, EPA should
seek recovery for CA oversight costs from PRPs. When oversight costs are reimbursed
by PRPs at the end of the year or at completion  of the response action, EPA funds can
be used to the extent available as described on OSWER Directive 9831.6, "Interim Final
Guidance Package on Funding CERCLA state Enforcement Actions at NPL Sites" (April
7,1988).  In applying  for an enforcement cooperative agreement, the state applicant
must demonstrate that "it has taken all necessary action to compel PRPs to fund the
oversight" of negotiated cleanup activities, (see Subpart 0 of 40 CFR Part 35, section
35.6155(c)(2)(iii)).

During annual consultations or when developing agreements, EPA and the states should
consider the extent to which each party will be involved in the other's negotiations with
PRPs. The extent of involvement should be  based on various factors. These include the
level of confidence in  past experience with the state, and site-specific factors such as
complexity or national significance of the response action. See OSWER Directive 9831.6,
"Interim Final Guidance Package on Funding CERCLA State Enforcement Action at NPL
Sites" (April 17,1988) for detailed information.

Where EPA has the lead for oversight, EPA  encourages the state to conduct oversight
tasks  only if it has the in-house capability to  do the work. Generally, EPA will not fund
the  state to hire contractors for oversight tasks (with the exception of procuring another
state agency) unless the state provides adequate justification for their use.
Furthermore,  EPA will not fund states to conduct oversight tasks that duplicate  EPA's
efforts.  Guidance for determining whether to fund a state for oversight of a PRP
response can be found in OSWER Directive 9831.6b, "CERCLA  Funding of PRP
Oversight by  states at NPL Sites" (April 7, 1988).

States may also be involved in three-party  agreements (EPA/State/PRP).  Generally,
the  Agency does not encourage three-party agreements for every site as resource
duplication may occur. Yet, this is a viable option where EPA and a state work together.

EPA funding of states is related to encouraging or compelling PRPs to undertake
response activities to  cleanup a site (such as negotiations for RI/FS and RD/RAs) and
to conduct necessary technical, administrative and enforcement activities during their
oversight of PRPs1 response (such as compiling the administrative record, preparing
remedy decision documents and enforcing the provisions of settlement agreements).

Two types of Superfund response agreements are essential to state participation in
CERCLA implementation. The first, Superfund Cooperative Agreements, is the vehicle
through which EPA can provide funds to states to assume  responsibility as lead or
                                          -4-

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support agencies for response.  CAs are usually site-specific but there are options for
multi-site enforcement CAs.  Core Program Cooperative Agreements may be used for
non-site-specific activities that support states.  See Subpart 0 of 40 CFR 35
information.

The second, Superfund State Contracts (SSCs), is necessary to ensure state
involvement as mandated under section 121 of CERCLA and to obtain state assurances
required under section 104 of CERCLA prior to remedial action. SSCs are only
applicable to Fund sites. SSCs are not applicable to enforcement sites activities because
state assurances are not required for enforcement sites.

Funding through enforcement cooperative agreements may  be for state-lead or state-
support enforcement activities.  State-support  activities include a review role for the
state.

Core Program CAs expand the range of activities eligible for funding. Core Program
funding provides funds to a state to conduct CERCLA implementation support activities
that are not assignable to specific sites, but are intended to develop and maintain a
state's ability to participate in the CERCLA response program.

The amount of funding provided  to states is negotiated between the state and the Region
based on the availability of funds and the recipient's program needs in the following
areas:

        Procedures for emergency response actions and longer-term remediation of
        environmental and health risks at hazardous waste  sites

        Provisions for satisfying  all requirements and assurances

        Legal authorities and enforcement support  associated with proper administration
        of the recipient's program and with efforts to compel PRPs to conduct or pay for
        studies and/or remediation

        Efforts necessary to hire and  train staff to manage publicly-funded cleanups,
        oversee RP-lead cleanups, and provide clerical support

        Other activities deemed  necessary by  EPA to support sustained EPA/recipient
        interaction in CERCLA implementation.

States can use Core Program CAs to develop safety plans, quality assurance project
plans, and community relations plans. Core Program CAs can provide funding for
document review, development, and refinement of the enforcement program. States can
also use Core  Program CAs to hire and train staff  to  oversee cleanup matters and to
cover clerical or administrative support, which cannot  be charged to site specific CAs.
                        -5-

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C.  Development  In developing state-enforcement CAs, EPA requires that states document their ability to
    of the CA     perform the response action and enforcement.  Specifically, states must demonstrate
                  that it has the authority, jurisdiction, and the necessary administrative capabilities to
                  take an enforcement action(s) to compel PRP cleanup of the site, or recovery of the
                  cleanup costs. When the state  submits a CA application, EPA and the state have
                  already designated the site as a state-lead enforcement site. The Region evaluates the
                  state's ability to conduct the response action and the ability to be lead enforcement
                  agency. When EPA funds state response or oversight activities, under a cooperative
                  agreement, the state has assured that their response actions and oversight of PRPs will
                  be consistent with CERCLA, as amended by SARA, the NCP and applicable EPA
                  guidance.

                  The discussion of Case Budget  in Section III of this chapter describes state activities
                  that can and can not be funded  under state enforcement CAs.  Detailed information on
                  the following provisions can be found in Subparts F of the NCP, Subpart 0 of 40 CFR
                  Part 35 and in "Interim Final Guidance Package on Funding CERCLA State Enforcement
                  Actions at NPL Sites".

D.  Sections in a  Some of the significant sections  included in a CA application are listed below; detail is
    CA Applies-  provided on those related to state enforcement.  Depending on the task to be funded by
    Son          the CA (e.g., PRP search, issuance of notice letters and negotiations, RI/FS), other
                  additional provisions may be added to the CA.

                          Legal Authority - Documents that adequate enforcement authorities are
                          available.

                          Consistency with CERCLA Section  122 - Provides that  state settlements will
                          be consistent with certain CERCLA  section 122 provisions and related  EPA
                          Superfund Policy when negotiating and settling with PRPs under a CA. (While
                          states can avail themselves of equivalent procedures, they are not authorized
                          by EPA to use section 122 when pursuing enforcement actions under their own
                          authorities).

                          Negotiation Time Frames - Assures that  the state will notify EPA if a
                          settlement is not reached within 90 days of issuance of special  notice for
                          RI/FS negotiations and  120 days for RD/RA negotiations; and requires that
                          the state recommend whether negotiations  should continue with the  PRPs.

                  •        Formalizing Successful  Actions ~ Assures that the state  will culminate
                          successful actions by entering into an enforceable order or decree, or issuing
                          some other enforceable  document requiring the PRP to conduct the response
                          action in  accordance with the NCP and  relevant EPA policy and guidance.

                  Other requirements that are included in a CA application address:

                  •        Administrative Record

                  •        Community Relations
                                          -6-

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£   Development
    of the
    SMOA
F.
    Articles in a
    SMOA
       Scope of Work.

The planning and reporting requirements of these state enforcement actions is presented
in section III of this chapter.

A Superfund Memorandum of Agreement (SMOA) facilitates and documents the
processes and procedures that the Region and state use when conducting site-specific
response actions.  A SMOA,  if negotiated properly, should remain applicable to the EPA-
state Superfund interaction for several years with only relatively minor, modifications as
changes to the relationship occur.

The SMOA concept provides a written document that is mutually approved by the
Agency and state and that covers all aspects of EPA-State interaction on Superfund
activities. The articles covered  in the SMOA parallel the major points of State-EPA
interaction set forth in the NCP.  SMOAs are used to describe the terms for the states
and EPA when the state wants to become the lead agency for enforcement action at an
NPL site or seek EPA concurrence on the remedy at an NPL site.  A SMOA shall be
supplemented by site-specific enforcement agreements between EPA and states which
specify schedules and EPA involvement.  If a SMOA is absent, EPA and the states shall
comply with the requirements in  section 300.515(h) of Subpart F of the NCP when the
state wants to be the lead agency for non-Fund financed enforcement actions.  SMOAs,
unlike CAs, are not legally binding.  The SMOA identifies the extent to which EPA and
the state will participate in each  other's response actions and how ARARs will be
identified. SMOAs and the state's responsibilities for involvement are available in
Subpart F of the NCP and OSWER Directive 9375.0-01 "Interim Final Guidance on
Preparation of a Superfund Memoranda of Agreement (SMOA)" (May 8,1989). The
guidance presents a model SMOA suggesting language and content for later adaptation
by EPA Regions and states.

The following paragraphs summarize material to be included  in the SMOA regarding
State enforcement; following this information is a listing of other important articles for
inclusion in the SMOA.

       Principles -- This article summarizes the status of the state's hazardous waste
       problem, the status of the state's Superfund program, the roles of the lead and
       support agencies, as well as agreements concerning the aggressiveness of
       enforcement activity.

•       Enforcement - This article describes expectations for enforcement and the
       general nature of EPA and state interaction in pursuing PRP site cleanup
       commitments. The parties to the SMOA must agree in principle that:

       1.      Negotiated response actions with qualified PRP's are essential to an
              effective program for the cleanup of NPL sites.
                                         -7-

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       2      Two-party (i.e., EPA or state and PRP) settlement negotiation and
               execution is generally more efficient than three-party (i.e., EPA and
               state and PRP) negotiation and execution.

       3.      The state has shown adequate authority to carry out enforcement.

       In addition, the parties to the SMOA must agree in practice to do the
       following:

       4.      Designate the lead and support agencies for enforcement actions at NPL
               sites during the annual planning process.

       5.      Indicate those sites where the support agency will be requested to concur
               on the lead agency's Record of Decision (ROD) or other decision
               document.  EPA retains final approval authority on  RODs where it  has
               provided monies to states for oversight/enforcement activities.

       6.      Develop site-specific enforcement strategy outlines with timeframes
               during the annual planning process.

       7.      Set forth response action commitments and settlements with PRPs in
               enforceable documents indicating the lead agency responsible for all
               Superfund communication with PRPs.

       8.      Organize a meeting between the lead agency and the support agency
               prior to  the start of negotiations with PRPs to discuss goals, starting
               points and bottom-line positions for negotiations.

       9.      Provide draft and final enforcement  documents to the support agency
               prior to issuance to the PRPs.

       10.     Allow for assistance requests by lead agency to support agency at any
               time during the enforcement and negotiation process.

       11.     Have the lead agency notify PRPs of a planned RI/FS and determine
               their willingness and ability to conduct the RI/FS.

       12.     Provide the state an opportunity to  be a party to any enforcement
               document in which it chooses to participate.

       13.     Recognize that the agreement does not limit the ultimate enforcement
               authority of EPA or the United States government.

The following articles also should be included in the SMOA as suggested in OSWER
Directive 9375.0-01,  "Interim Final Guidance on Preparation of  Superfund Memoranda of
Agreement (SMOA)" (May 8, 1989):

       Federal facilities
                        -8-

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G.
EPA
Approval of
State
Remedies;
Counting
State RA
Starts
                         Introduction and  Statement of Purpose

                  •       Agreement Concerning Roles and Responsibilities

                         Lead State Agency Designation

                         Site-Specific Designation of Lead/Support Agency

                         Remedial Project Manager/Support Agency Coordinator Designations

                         Support Agency Concurrence

                         Points  of Contact

                  •       Planning/Coordination Processes

                  •       Removal Actions

                         Processes to be Defined

                  •       Consultation, Agreement and Concurrent Processes

                         Support Agency Site-Specific Review/Oversight

                         Resolution of Disputes

                         Exclusion  of Third Party Benefits

                  •       Negation of Agency Relationship.

                  Subpart K of the NCP which is currently in draft will address roles of the state,
                  Federal facilities, and EPA in SMOAs, Interagency Agreements, and other
                  processes.
EPA retains remedy selection authority when the lead agency is acting under CERCLA
authority,  states retain remedy selection when they are acting under state authority.
However, EPA may not be bound by a state-adopted remedy unless the Regional
Administrator has expressly adopted in writing a remedy that complies with section 121.
Unlike a Fund-financed response action, a state may proceed without EPA concurrence
and adoption of the ROD.

The Agency's potential for achieving the goals of 200 additional remedial action starts by
October 1991 can be optimized by including appropriate state-lead enforcement sites.
This is advantageous where states have developed a willingness and ability to manage
state-lead enforcement sites within reasonable timeframes.
                                         -9-

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Six criteria have been adopted for state-lead enforcement sites to count toward the RA
starts.  They are:

       The site is on the National Priorities List (NPL)

       The site is covered by agreement between EPA and the state

•      The remedial action to be performed is consistent with the cleanup
       standards of section 121  of CERCLA

       The Regional Administrator signs the ROD or documents in writing the
       finding that the state ROD (or equivalent) meets CERCLA cleanup
       standards

       The state and Potentially Responsible Parties (PRPs) have entered into
       an enforceable agreement for conduct of the remedial action or the state
       has issued an enforceable unilateral order with which the PRPs are
       complying

       The state certifies with a document or a qualified state or Federal official
       has documented that substantial and continuous physical on-site remedial
       action has commenced at the site.

These criteria for counting state-lead enforcement NPL  sites toward the CERCLA
section 116(e) mandate are described in OSWER Memo 9831.8, "Counting state-lead
Enforcement NPL Sites Toward the CERCLA section 116(e) RA Start Mandate"
(October 21,1988).  This memo outlines procedures for tracking candidate sites and long
term goals for deletion of state-lead enforcement NPL sites.

References

OSWER Directive 9831.6, "Interim Final Guidance Package on Funding CERCLA state
Enforcement Actions at NPL Sites" (April 7,1988).

OSWER Memorandum 9375.0-01  attachment, "Interim Final Guidance on Preparation of
Superfund Memoranda Of Agreement" (May 8,1989).

OSWER Directive 9375.2-01, "State Core Program Funding Cooperative Agreements"
(December 12,1987).
                      -10-

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A.  SCAP
    Site
    Classifica-
    tion
III. PLANNING AND REPORTING REQUIREMENTS

EPA defines state-lead enforcement as those National Priorities List (NPL) sites
classified by the Region as being the direct responsibility of the state. At the beginning of
FY 89 there were approximately 165 NPL sites classified as state-lead enforcement.

In order to increase the contribution of state-lead enforcement sites toward the CERCLA
mandate of Remedial Action (RA) starts and to encourage state enforcement activity,
it is important that funding is placed where the most evident environmental results can be
achieved.  Moreover, the necessary coordination between the Federal Government and
states can only work when funds are planned and reported for, as this section illustrates.

The following planning and reporting issues are presented in this portion of the chapter:

       SCAP process related to state enforcement

       State-lead enforcement and related mandates

       Classification of site leads

       CERCLIS/WasteLAN and related Agency and state responsibilities

       Different types of state leads, and

       Case budget and cooperative agreement information.

Each  of these topics is discussed in detail in this section of the chapter.

Regions are required to report progress on state Enforcement-lead sites as they would
any other  site.  This  includes State Enforcement (SE) leads where there is Federally
financed work performed by the state with a state enforcement component; and work
financed by the PRP under a state order through which no EPA oversight support or
money is provided (SR). (See additional detail on activity and event lead codes under
section B  of this chapter.)

After a hazardous waste site is identified, EPA initiates an investigation to identify
PRPs associated with the site.  On the basis of this preliminary PRP search, EPA
(perhaps in coordination with the state) may make an initial determination of how
cleanup of the release will be managed and who will initiate enforcement actions under
CERCLA.  The decision to classify a site as a state enforcement-lead response is based
on the site history, strength of legal evidence and the national significance of the site.

States can receive Federal funding for state-lead enforcement actions at hazardous
waste sites through Cooperative Agreements (CAs), as provided for in the revised
NCP.
                                         -11-

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&  CERCLIS/    The relationship of states to the budgetary planning process is graphically presented in
    WasteLAN    Exhibit XIV-1. The relationship begins when the Regional office together with the state
                  determines activity and event targets for the SCAP and STARS. These targets are
                  reviewed by EPA Headquarters through  CERCLIS/WasteLAN and used to revise SCAP
                  and STARS, and to determine the case budget.

                  The CERCLIS/WasteLAN system uses a series of activity and event codes to
                  designate the lead agency. A discussion of these codes follows.

    Activity       A lead code must be placed in CERCLIS/WasteLAN for all events and activities.  For
    Leads        RI/FS, RD, RA and enforcement activities, the lead codes identify the entity performing
                  the work. There are several possible enforcement activity leads the state may assume
                  at  a site.

                  The SCAP defines the following codes to designate enforcement activity leads:

                         SE - SE stands for State Enforcement. This code is  used to designate
                         enforcement activities initiated by a state using its own enforcement authorities
                         to clean up sites. Trust Fund dollars are used to pay or partially pay for the
                         enforcement and response activities at state enforcement lead sites through
                         Cooperative Agreements. SE could therefore be used for RI/FS and RD/RA
                         negotiations.

                         F£ -- FE stands for Federal Enforcement site where Fund money is being used to
                         pay for the enforcement activities.

    Event Leads  Event types are codes for a specific response, non-response,  or a support event within
                  the Pre-Remedial, Remedial, Removal, and Community Relations components of the
                  Superfund program.

                  States have a role in the following event codes:

                  •       S -- S stands for state-lead site where events are paid with Trust Fund dollars.

                         SJN -- SN is used to designate state-funded events where no Trust Fund
                         expenditures are involved. Site events are undertaken solely by the state and
                         paid for by state authorities.  SN applies to response events (RI/FS, RD,  RA,
                         removal).

                         SB -- SR stands for State Enforcement/Responsible Party Financed and is used
                         to designate  events where the state has an administrative or judicial order
                         requiring the  PRPs to do the response work. There is  no Federal concurrence on
                         the remedy, i.e., SMOAs, State/EPA agreements, or cooperative agreements
                         covering the site.

                         PS -- PS is used for a PRP response under a state order, when Fund money is
                         supporting Cooperative Agreements with states conducting state-lead oversight;
                         or for sites not receiving  Fund money that receive EPA oversight through
                                         -12-

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                     Exhibit XIV-1

Relationship of States to Budgetary Planning Process
$
                                Enforcement   Remedial
                                 Activities     Events
                                 SE or FE   S, SN, SR, PS
                         \        \        I
                            SCAP/STARS
                               CERCLIS/5
                               WasteLan E
                             SCAP/STARS
                                 Case
                                Budget
                                   $
                                                       State and
                                                       Region interact
                                                       to determine
                                                       budget targets,
                                                       activity targets,
                                                       and event lead
                                                       designation
                                                       through the
                                                       SCAP/STARS
                                                       process
                            Data from
                            Regions
                            entered Into
                            CERCLIS/
                            WasteLan
                            system
                                                     HQand
                                                     Regional
                                                     review of data
                                                     in CERCLIS/
                                                     WasteLan
                           HQ
                           determines
                           funding level
                           In Case
                           Budget
                           (including
                           funds for
                           Cooperative
                           Agreements)

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                         SMOAs, state/EPA agreements or Cooperative Agreements. Money will be
                         approved through the case budget described in the following section.

C.  Case Budget  The Case Budget (CB) allocation is the approved extramural funding for enforcement
                  activities and events identified in CERCLIS/WasteLAN. Funds are available to the
                  Regions on a quarterly basis through the Advice of Allowance (AOA) process.  Regions
                  may use enforcement funds in their TES contracts or Non-TES vehicles, including
                  Cooperative Agreements.  See Exhibit XIV-2 for a diagram illustrating Cooperative
                  Agreement funding through the case budget and refer to Chapter XVI, Contracts and
                  Case Budget, for specific case budget information.

                  The FY 91 case budget includes approximately $3.6 million to support enforcement
                  Cooperative Agreements with states.  This money is intended to fund state support
                  activities during Federal-lead enforcement actions and conduct of state-lead enforcement
                  actions (SE-lead) or oversight (PS-lead).  These resources will be distributed to each
                  Region through the OWPE AOA.  Specifically, state enforcement CAs should be used to
                  fund the following state activities:

                         PRP search

                         Negotiations

                         Administrative or judicial  enforcement

                         Oversight of PRP response (RI/FS, RD, RA)

                  «       Participation in site-specific activities in cases  in which EPA has reached a
                         settlement agreement with the PRPs.

                  Funds for state enforcement CAs are not intended to provide states  with resources to:

                         Conduct state-lead  RI/FSs, RDs, or RAs.  Dollars for these events are allocated
                         by OERR.

                         Oversee PRPs at Federal-lead sites. Dollars for oversight of RP response at
                         Fund-lead or Federal enforcement-lead sites are generally allocated from the
                         TES contracts.

                         Award  community relations technical assistance grants. Allocations from these
                         come from elsewhere within the case budget.

                  Three priorities  have been established to help guide the Regions in planning enforcement
                  CA resource needs.  The priorities are consistent with EPA's responsibility to meet
                  statutory RA start requirements and with  the Agency's policy of encouraging state
                  involvement in CERCLA enforcement activities.  The Regions should,  when possible, use
                  CAs to fund state support activities and  state-lead enforcement activities at sites in
                  each of the following categories:
                                         -13-

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Sites counting toward the 200 RA start mandate

Sites in which states have shown strong enforcement interest (primarily
state-lead sites).  More in-depth information on these priorities can be found
in the OSWER fiscal year SCAP Manual. Also refer to Chapter XVI,
Contracts and Case Budget, for additional background on the development
of the case budget and related Agency responsibilities.
                -14-

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              Exhibit XIV-2

      CA Funding Through Case Budget
 Case
Budget

   $
/


TES5-12
CONTRACTS
©

a
NON-TES
VEHICLES
©


/
                         CAs

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                  IV.  POTENTIAL PROBLEMS/RESOLUTIONS
A.   Forum
     Shopphgty
     PRPs
B.   Overseeing
     Slate
     Oversight of
     PRPs
C.   SCAP
     Targets
D.  Standard
    Planning
    Time Line
E   SMOA
    Development
F.   State
    Challenges
    to RD/RA
    Consent
    Decrees
This section discusses specific issues RPMs may confront during state enforcement
activities and suggests methods for resolving these issues.

This situation occurs when PRPs negotiate separately with state and Federal
authorities to identify their best deal. There are advantages and disadvantages to this
strategy for the PRPs: the PRP  is unable to get liability releases from Federal and
state authority unless a joint decree is signed (however, a joint decree doesn't guarantee
releases-releases must be negotiated as part of the settlement). Moreover, PRPs
should be interested in the process of deletion from the NPL. EPA can delete a site from
the NPL only if the site meets standards set forth in the NCP, not if it meets a state's
requirements. Therefore, RPMs  need to make it clear to PRPs that it is in their best
interests to work both with EPA and the state in developing a settlement.

To avoid delays in the project because of poor quality work, a vigorous oversight effort
is necessary. The RPM  must make sure the state is aggressive in its oversight efforts
and should work closely with state officials to make sure the work conducted is of
acceptable quality.  For example, the RI/FS must be of sufficient quality to support the
ROD.

When states delay discussions with the Regions concerning their SCAP targets, it is
difficult to monitor progress.  It is imperative that states be  viewed as partners with the
Region. With a state-lead project, EPA should work closely with the state to identify
start and close dates for activities listed  on the SCAP so that target figures will be
accurate.

If Regions do not complete their schedule through the RA phase, their budget could be
short-changed. For planning SCAP budget projections, the RPMs should use the
Standard Planning Time Line or Regional Time Line, until better planning information
becomes available for projecting  start and completion dates for events.  These dates
are critical for budget projections  and influence budget estimates for upcoming years.

SMOAs are not required  unless the state wishes to recommend the remedy for
concurrence or to be the  lead agency for non-Fund financed activities at an NPL site.
When the state wishes to negotiate a SMOA, EPA must do so; however, EPA may
not require that the state  develop a SMOA. In general, however,  Regions and states
should work to encourage development of SMOAs.

Pursuant to section 121 (f)(2)(h), states can challenge ARARs in consent decrees.
These challenges can be  a major source of delay.  RPMs should establish and
maintain contact with the state throughout the process to avoid delays.
                                         -15-

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Policy
Guidance
Manual
Contacts
V. REFERENCES

National Oil and Hazardous Substances Pollution Contingency Plan:  Final Rule (March 8,
1990) to FR 8666, Subpart F - state Involvement in Hazardous Substance Response and
Subpart K - Federal Facilities.

40 CFR Part 35, Subpart 0, "Cooperative Agreements and Superfund State Contracts
for Superfund Response Actions" (June 5,1990) 40 FR 22994.

OSWER Directive 9831.2, "Reporting and Exchange of Information on State Enforcement
Actions at National Priorities Sites" (March 14,1986).

OSWER Directive 9375.0-01 attachment, "Interim Final Guidance on  Preparation of
Superfund  Memoranda Of Agreement (SMOA)" (May 8,1989).

OSWER Directive 9831.8, "Counting state-lead Enforcement NPL Sites Toward the
CERCLA Section  116 (e) RA Start Mandate" (October 21,1988).

OSWER Directive 9831.7, "Supporting State Attorneys General CERCLA Remedial and
Enforcement Response Activities at NPL Sites" (June 21,1988).

OSWER Directive 9831.6, "Interim  Final Guidance Package on Funding CERCLA State
Enforcement Actions at NPL Sites" (April 7, 1988).

OSWER Directive 9831.3, "EPA-State Relationship in Enforcement Actions for Sites on
the NPL" (October 2,1984).

FMD, "State Superfund Financial Management and Recordkeeping Document" (August,
1987).

OSWER Directive 9355.2-1, Superfund State-lead Remedial Project Management
Handbook (December 1986).

OSWER Directive 9200.3-01 B, SCAP Manual (updated annually).

Office of Waste Programs Enforcement, CERCLA Enforcement Division,  Guidance and
Evaluation  Branch, FTS 475-8727.

Office of Emergency and Remedial Response, Hazardous Site Control Division, state and
Local Coordination Branch,  FTS 398-8328.
                                       -16-

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                         RECORDS  MANAGEMENT

I.      DESCRIPTION OF ACTIVITY	1

       Introduction	1

II.     PROCEDURES  AND  INTERACTIONS	2

       A.     Site Files	2
             Remedy Site Fles	2
                    File Content and Structure	2
                    Collection of Field Data	2
                    File Management Process	2
             Removal Site Files	3
                    File Content and Structure	3
                    Site Fife Kit	3
                    Collection of Reid Data	3
                    File Management Process	3
       B.     Administrative Record Files	4
             File Content and Structure	4
             EPARoles	4
             Involvement of Other Parties	5
             Public Participation	6
                    Remedial Actions	7
                    Removal Actions	7
             Excluded and Privileged Information	8
             Post-Decision Information	8
             Compendium	9
             Models.	9
             Certification	9
       C.     Cost Documentation File	9
             File Content and Structure	10
             Fife Management Process	10
       D.     Storage and Maintenance of the Records	10
             Fife Maintenance	11
                    Disposition of Inactive Records	11
                    Vital Records	11

III.    PLANNING  AND  REPORTING REQUIREMENTS	12

       A.     Setting  Priorities	12
       B.     Planning	12
       C.     Budget	12

IV.    POTENTIAL  PROBLEMS/RESOLUTIONS	13

       A.     Space	13
       B.     Transporting the Record to the Site	13
       C.     ORC and RPM Involvement	13

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REFERENCES	14

Policies	14
Guidance	14
Manuals	14
Contacts.	14
Training	15

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                                 RECORDS MANAGEMENT


                  I. DESCRIPTION OF ACTIVITY

Wrtx/ucfibn        Records Management is critical to the success of the Superfund enforcement program.
                  Due to the involvement of numerous Federal and State agencies, contractors, RPMs,
                  OSCs, and PRPs at a site over a potentially extended time period, good file organization
                  is necessary to document the site activities. Within Superfund,  there are three primary
                  areas of file management:

                         The site file

                         The Administrative Record file for selection of each response action

                  •       The cost documentation file.

                  The site file contains all acquired site-specific information.

                  The Administrative Record file is a subset of the site file. As mandated by section
                  113(k) of CERCLA, the Administrative Record for selection of the response action
                  contains all the documents that form the basis for the decision  to select a CERCLA
                  response action, and acts as a vehicle for public participation in the selection of the
                  response action. Proper compilation and maintenance of the Administrative Record file is
                  crucial because under section 113(j) of CERCLA, judicial review of issues concerning the
                  adequacy of any response action is limited to the information contained in the
                  Administrative Record.  In-depth information on compiling the Administrative Record for
                  selection of response actions is contained in OSWER Directive 9833.3A-1 "Final Guidance
                  on Administrative Records for Selection of CERCLA Response Actions" (December 3,
                  1990). Note that there may  be other administrative records to support other decisions
                  taken by the Agency, e.g., a Deletion Administrative Record.

                  The file for cost recovery documentation consists of Headquarters and Regional
                  documentation of expenditures, and is required to recover Fund expenditures under
                  section 107 of CERCLA.
                                         -1-

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                  II. PROCEDURES AND INTERACTIONS

A.   Site Files     The site file consists of all acquired site-specific information. There are two kinds of
                  site files:

                          Remedial site files, which consist of all acquired information for a remedial
                          action, and

                          Removal site files, which consist of all acquired information for a removal action.

                  This section discusses aspects of both kinds of site files, including their content and
                  structure, the collection of field data, and file management responsibilities.

                  There is no one way to organize files; this chapter gives recommendations and
                  references model file structures that are available.  Regions may want to add their
                  own file structure to this handbook.

    Remedial Site  The RPM is responsible for developing and maintaining accurate and complete files of the
    Files          activities pertaining to the site.

                  File Content and Structure

                  The remedial site file should contain all documents acquired during the remedial response.
                  The document inventory and filing system may be based on serial identification numbered
                  documents or  other coding systems. These systems may be manual or automated.  A
                  suggested file structure with sample contents is illustrated in Exhibit XV-1.

                  Collection of Field Data

                  Site-specific data quality objectives will govern the data management methods used, and
                  the site's  Quality Assurance Project Plan/Field Sampling Plan (QAPP/FSP) will identify
                  both field  and  analytic data to be acquired and the standard operation procedures to be
                  used. A data  security system must be implemented to safeguard the chain of custody
                  records and document control for field data. Refer to OSWER Directive 9355.07A, "Data
                  Quality Objectives for Remedial Response Activities" (March 1987) for more specific
                  guidance.

                  File Management Process

                  The RPM must complete the appropriate forms and reports and file them according to
                  the Regional file structure.  Files must be distributed to the Regional office from  the site
                  on a regular basis and as soon as possible to assess their applicability  to response
                  selection, to determine if the documents should be copied and/or stored  in the Region, and
                  to submit financial documents for processing.  Documents that are part of the
                  Administrative Record should be copied from the site file and maintained in a separate
                  Administrative Record file.  CERCLA requires that the Administrative  Record file be
                  available to the public at or near the facility at issue. The site file,  however, is generally
                  not available for  public review because it contains draft documentation and privileged
                  materials.
                                           -2-

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                            Exhibit XV-1(1)

                        Remedial Model File Structure
Congressional
Inquiries
Transcripts
Testimony
Published Hearing Records
Preliminary
Investigation
Documents
 Initial Investigation
 Preliminary Assessment
 Site Inspection
 Hazard Ranking System
   Scoring Package
Remedial Planning
Documents
 Work Plans for RI/FS
 RI/FS Reports
 Health and Safety Plan
 QA/QC Plan
 ROD and ROD Responsiveness
   Summary
Remedial
Implementation
 Remedial Design Reports
 Permits
 Contractor Work Plans
    Progress Reports
 COE Agreements, Reports
State
Coordination
 Cooperative Agreement
 SMOA
 State Quarterly Report
 Status of State Assurances
 lAGs
Community
Relations
 Interviews
 Community Relations Plan
 Meeting Summaries
 Transcripts
 Responsiveness Summary
 Correspondence

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                                  Exhibit XV-1 (2)
 7.
                           Imagery
         Remedial
         Enforcement
         Planning
 Status Reports
 Administrative Orders
 Cross reference to confidential
    enforcement files
 Notice Letters
 S104(e) Letters
         Remedial
         Enforcement
         Implementation
  Consent Decrees
  RD/RA Status Reports
  Cross reference to confidential
    enforcement files
10.
         Contracts
 Site-specific Contracts
 Procurement Packages
 Contract Status
 Notifications
 List of Contractors
11.
          Financial
          Documents
Cross reference to other
   financial files
Contractor Cost Report
   Audit Reports
   TES Reports
   TAT Reports

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Removal Site   Removal site file management has typically been the responsibility of the OSC, with
Files           assistance from  other EPA Regional staff, Technical Assistance  Team (TAT)
               contractors, and the U.S. Coast Guard Strike Team.  Each Region  must clearly assign
               responsibility for each of the file management functions.

               File Content and Structure

               Removal site files include documentation of all aspects of the removal: operational, legal,
               financial, community relations, and technical. Each  Region should have a site file
               structure that can be used consistently at each site.  All file structures used by the
               Regions should include the same minimum set of information.  See Exhibit XV-2 for an
               example of a model file structure and component documents.

               Site File Kit

               The site file kit contains the items necessary to support the structured collection and
               storage of information at the site. Kit materials include file boxes, file folders, blank
               forms, time sheets, office supplies, and,  if available, a personal computer.  The Regional
               office distributes kits to OSCs, who may delegate acquisition of additional supplies to
               Regional administrative support personnel or the  TAT. The site file kit should be
               transferred to the site upon project initiation.  For short-term actions, the site file should
               be kept with the OSC. For long-term actions, the  site file should remain in the command
               post.

               Collection of Field Data

               Data-gathering activities, based on site work plans or field sampling plans, are
               documented daily in the  field logs. Guidance for quality assurance of field samples may
               be contained in the QA/QC Project Plans for the removal site.  A data security system
               must be implemented to safeguard chain of custody records and document control
               procedures for field data.

               File  Management Process

               Similar to RPM responsibilities for the remedial site file, the OSC must complete the
               appropriate forms and reports (such as Action Memoranda, work reports, and time
               sheets) in a timely fashion and file them according to the Regional file structure. Files
               must be distributed to the Regional office from the site on a regular basis  and as quickly
               as possible to assess their applicability to the response selection, to determine if the
               documents should be copied and/or stored in the Region, and to submit financial
               documents for processing. Documents that are part of the Administrative  Record should
               be copied from the site file and maintained in a separate Administrative Record file.  The
               site file, unlike the Administrative Record file, need not be available for public review.
               The following section offers guidance on documents to be included in the Administrative
               Record.
                                       -3-

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R  Admlnistra-    The Administrative Record contains the documents that form the basis for the selection
    th/e Record    of CERCLA response actions.  Section 113(k)(1) of CERCLA requires that the Agency
    fifes           establish Administrative Records for the selection of CERCLA response actions.
                  Section 113(k)(2) of CERCLA requires that the public have the opportunity to
                  participate in the development of the Administrative Record. This section discusses the
                  major requirements for the Administrative Record with regard to content and non-EPA
                  involvement, and some specific requirements for different types of Superfund actions.

    File Content   The record should consist of the documents that form the basis for the selection of a
    and Structure  CERCLA response action, whether they support or oppose the Agency's selected action.
                  Documents in the Administrative Record file should include relevant writings, graphs,
                  charts, photographs, and data compilations, but the file does not include physical
                  samples. Documents should be compiled as they are generated or received and made
                  available at'or near the site when the Remedial Investigation is begun. See Exhibit XV-3
                  for a sample file structure and list of documents that, if considered or relied  upon  for the
                  selection of response at a site, must be included in the Administrative Record file. The list
                  is not exclusive. The record file should contain any information on which the remedial
                  action was based.  Documents generated or received for a site, but not relevant to the
                  response selection, should not be included in the Administrative Record file.

    EPA Roles     The OSC, RPM, enforcement staff, ORC, Community Relations Coordinator, and the
                  Administrative Record Coordinator are all involved in establishing Administrative  Record
                  files.  The Administrative Record Coordinator has the duty of ensuring the adequate
                  compilation and maintenance of the record files, but is not responsible for deciding  which
                  documents to include in the record files. Those decisions should be made by the OSC or
                  RPM in consultation with the ORC. The following chart identifies recommended roles for
                  Administrative Record development.

                          Recommended Roles for Administrative Record Development
RPM/
Tasks OSC RC ARC CRC Contractor
Develop compilation
schedule & procedures
Develop maintenance
& update procedures
Coordinate efforts to
obtain necessary documents
Technical/legal review
of documents & index
Screen
privileged documents
Check adequacy
& completeness of AR
Organize & photocopy
documents
Site repository arrangements
Issue public notices


•
•
•
•

•



•
•
•
•



•
•
•




•
»


•




•
*


•



•


                                          -4-

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                             Exhibit XV-2
                      Removals Model File Structure
Operational
Documents
POLREPs
Action Memos
Action Memo Amendments
Site Safety Plans
Work Plans
Progress Reports
Legal
Documents
Access Agreements
Financial
Documents
Daily Work Reports
Delivery Orders
1900-55S
Travel Vouchers
Time Sheets
Contract Invoices
Personnel/Equipment
Logs
Public Relations
Documents
Technical
Documents
Records of Communication
Community Relations Plan
Correspondence
                                                  .
                                                  Media
                                                 Articles
Sampling and
   Analysis Data
Investigations
Waste Profile
                                                               Maps and
                                                               Photographs

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                          Exhibit XV-3(1)
              Administrative Record Model File Structure
Site
Identification
Removal
Response
Remedial
Investigation
Background
Site Inspection
Preliminary Assessment
Site Investigation
Previous OU Information
Sampling and Analysis Plan
Data (possibly located elsewhere but
 incorporated by reference)/Chain of
 Custody Forms
Engineering Evaluation/Cost Analysis
 (EE/CA) Approval Memorandum
 (for non-time-critical actions)
EE/CA
Action Memorandum & Amendments

Sampling and Analysis Plan
Data (possibly located elsewhere but
 incorporated by reference)/Chain
 of Custody Forms
Work Plan
Rl Reports
Feasibility
Study
ARAR Determinations
FS Reports
Proposed Plan
Supplements and Revisions to the
 Proposed Plan
Record of
Decision
ROD
Amendments to ROD
Explanation of Significant
 Differences
State
Coordination
Cooperative Agreements/
 SMOAs
State Certification
 ofARARs

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                               Exhibit XV-3(2)
7.
         Enforcement
         Documents
8.
         Health
         Assessments
Enforcement History
Endangerment Assessments/Risk
 Assessments
Administrative Orders
Consent Decrees
Affidavits
Documentation of Technical Discussions
 with PRPs
Notice Letters and Responses
ATSDR Health Assessments
lexicological Profiles
9.
         Natural Resources
         Trustees
Notices Issued
Findings of Fact
Reports
10.
          Public
          Participation
Com ments/Responses
Community Relations Plan
Public Notices
Public Meeting Transcripts
Fact Sheets & Press Releases
Responsiveness Summary
Late comments
11.
         Technical Sources
         Guidance Documents
EPA HQ Guidance
EPA Regional Guidance
State Guidance
Technical Sources

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                When there is a question about including certain documents in the Administrative Record
                file, such documents can be segregated and reviewed by the RPM and the ORC at 3- or
                4-month intervals (except for removals)! At critical times,  such as prior to the public
                comment period, the issues regarding these documents should be resolved and, if
                appropriate, the documents included in the record file.

                Each separate  response action at a site (operable unit, interim action, or removal action)
                should be supported by an Administrative Record file, although they may be integrated
                into one record file if the Agency determines that the decisions are so intertwined that
                separate record files would be impractical. The record file must be available to the public
                at or near the facility at issue. Public participation in the process is discussed later in
                this chapter and in more detail in Chapter XIII, Community Relations.

Involvement of   The Administrative Record file for a Federal-lead site should reflect any state
Other Parties   involvement in the selection of a response action. For guidance on documentation of state
                involvement in the response selection, see OSWER Directive 9833.3A-1, "Final Guidance
                on Administrative Records for Selection of CERCLA Response Actions" (December 3,
                1990) noted in the references at the end of this section.

                Where a state has been officially designated as the "lead agency," the state must
                compile and maintain the Administrative Record file in accordance with section 113(k) of
                CERCLA. The state must transmit copies  of key documents to the EPA Regional office.
                At a minimum,  the state as lead agency must transmit a copy of the index, the RI/FS
                work plan, the RI/FS released for public comment, the proposed plan, and any  public
                comments received on the  RI/FS and the proposed plan.  For purposes of oversight, the
                state should also send a copy of any risk assessment, final draft Rl and final draft FS to
                the appropriate EPA Regional office.  Agreements pertaining  to the state's role and
                responsibilities regarding the Administrative Record should be incorporated into the
                Superfund Memorandum of Agreement  (SMOA) or  Cooperative Agreement (CA). The
                record file compiled by the state should  reflect EPA's participation, comments,
                concurrence, and any disagreements  at the same stages as are required for state
                involvement in a Federal-lead site.

                For Federal  facilities, the lead agency has responsibility for compiling an Administrative
                Record file in accordance with section 113(k).  At NPL sites and any other site where
                EPA is involved in selecting a response  action at a Federal facility, the Federal agency
                must transmit key documents to the EPA Regional office. At a minimum, the  Federal
                agency must transmit  a copy of the  index, the RI/FS work plan, the RI/FS released for
                public comment, the proposed plan, and any public comments received on the RI/FS and
                proposed plan.  For purposes of oversight, the Federal agency should also send a copy of
                any risk assessment, final  draft Rl and final draft FS to  EPA. Inter-Agency Agreements
                (IAG) should spell out procedures for compiling and maintaining the record file.
                                       -5-

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Public         Section 113(k) of CERCLA specifies that the Administrative Record "shall be made
Participation   available to the public." • In satisfying this provision, the Agency must comply with all
              relevant public participation procedures outlined in sections 113(k) and 117 of CERCLA.
              The NCR contains additional guidance (see also OSWER Directive 9230.0-3B,
              Community Relations in Superfund:  A Handbook (March 1988) and OSWER Directive
              9836.0-1 A, "Community Relations During Enforcement Activities," (November 1988)
              referenced at the end of this chapter).

              In general, the Administrative Record should document any opportunity for public
              involvement in the selection of a response action.  All documents related to the
              opportunity for public involvement (e.g., notices and fact sheets), and relevant written
              comments received from the public should be included in the record file to establish a
              complete record for purposes of judicial review.

              The record file should also contain information brought  to the Agency's attention by the
              public. Reports, data and other information generated by outside parties and submitted
              to the Agency should be included in the record file.

              The Agency should request that substantive oral comments (either in person or over the
              phone) be put in writing by the commentor for inclusion in the record file.  The commentor
              should be advised that the obligation to reduce the comment to writing rests with the
              commentor.

              The Agency may respond to comments received prior to a public comment period in
              various ways, depending on the nature and relevance of a particular comment.  The
              Agency's consideration of such a comment may be in the  form of a written response, or
              reflected by documented actions taken after receiving the comment, or even by changes
              in subsequent versions of documents.  If the Agency responds to a comment, the
              response should be included in the record file.

              The Agency may notify commentors that comments submitted prior to a formal public
              comment period must be resubmitted or specifically identified during the public comment
              period in order to receive formal response by the Agency.  Alternatively, the Agency
              may notify a commentor that  the Agency will respond to the comment in a
              responsiveness summary prepared at a later date.

              Comments received during a formal public comment period must be addressed in a
              responsiveness summary (included with the ROD in remedial response actions). The
              responses may be combined by subject or other category in the record file. It should be
              noted that one response can be prepared to multiple comments of the same nature  in
              order to be most efficient. Comments should be included in the record file in their original
              form whenever feasible. For further  information, consult OSWER Directive 9355.3-02,
              "Interim Final Guidance on Preparing Superfund Decision Documents: The Proposed Plan
              and the Record of Decision, Explanation of Significant Differences, and the ROD
              Amendment" (June 1989).

              In all cases, the Agency should publish a notice of availability of the record file when the
              record file is first made available for  public inspection in the vicinity of  the site at issue.
              The notice should explain the purpose of the record file, its location and availability, and


                                      -6-

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how the public may participate in its development. The notice should be published in a
major local newspaper of general circulation in the area of the site at issue, and
distributed to persons on the community relations mailing list. This notice should also be
sent to all known PRPs if they are not already included on the community relations
mailing list.

The availability of the record file will vary depending upon the nature of the response
action. Different procedures are outlined below for remedial  and removal response
actions.

Remedial Actions

Section 113(k)(2)(B) of CERCLA outlines the requirements and procedures for public
participation in the Administrative Record file for remedial actions. The Agency's policy,
as outlined in the NCR, is that the Administrative Record file for a remedial action must
be established at the Regional office and made available for public inspection at a
location at or near the site when the remedial investigation begins.

Removal Actions

Section 113(k)(2)(A) of CERCLA requires that EPA develop appropriate procedures for
participation of interested parties in the development of an  Adminstrative Record for a
removal action. These requirements also are discussed in Chapter II, Removals.
Procedures for each type of removal action are discussed below.

Emergency removal actions initiated within hours and lasting less than 30 days

The Administrative Record file must be made available to the public no later than 60
days after initiation of removal activity  at the site. The record file must be  maintained in
the Regional office, but need not be made available at or near the site.  Public comment
on the Administrative Record file should be held when appropriate.

Other time-critical removals, including emergency removals lasting more than 30 days

The Administrative Record file must be made available to the public no later than 60
days after the initiation of removal activity  at the site. The  record file must be
established at the Regional office and made available for public inspection at or  near the
site at issue. Public comment on the Administrative Record file should be held when
appropriate.  In general, a public comment period will be considered appropriate if cleanup
activity has not been completed at the time the record file is made available to the public
and if public comments might have an impact on future action at the site. A
responsiveness summary on the significant comments received must be prepared and
included in the record file following the public comment period.

Non-time-critical removals

The Administrative Record file must be available for public inspection when the
engineering evaluation/cost analysis (EE/CA) is made available for public comment.
The Administrative Record file must be available at a central Regional location  and  at or
                        -7-

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               near the site.  A public comment period of at least 30 days must be initiated. The
               Agency must respond to all significant comments received during the public comment
               period and place the comments and the responses to them in the record file.

Excluded and   Documents should be excluded from the Administrative Record if they contain
Privileged      information that is not relevant to the Agency's selection of a response action.
Information     Examples of such documents may include contractor work assignments,  cost
               documentation information, and NPL deletion information.  Information relevant to the
               selection of the response action that is generated or received after a decision document
               is signed should be kept in a post-decision file, and may be added to the record file in
               certain limited situations.

               Some documents in the Administrative Record file may be protected from public
               disclosure  on the basis of an applicable privilege. The RPM/OSC and ORC share
               responsibility for deciding which documents are privileged. Types of privilege include:
               deliberative process, confidential business information, attorney work product,  attorney-
               client communication, personal privacy, and state secrets. Any privileged information
               that was considered or relied on to make the response action decision must be placed in a
               confidential portion of the record file.  A short description of the  information in the
               privileged document should be inserted in the portion of the record file available to the
               public, and included in the index.  In situations involving attorney-client privilege and
               deliberative process privilege, ORC should be consulted for proper procedure.

Post-Decision   After a decision document is signed, information generated or received by the
Information     Agency should be placed in a post-decision document file, which is separate from the
               Administrative Record file. Post-decision documents may be added to the record file
               in limited situations:

                      If the decision document does not address or if it reserves a significant aspect of
                      the response action decision to be made at a later date.  In such  cases, the
                      Agency should continue to add documents to the record file that  form the basis
                      for the unaddressed portion of the decision.

               •       If there is a significant change in the remedy selected in the decision document.
                      These changes may be addressed in an explanation of significant differences.

                      If the submitted documents contain changes that fundamentally  alter the basis of
                      the overall response action. Such changes will require an amended decision
                      document.

                      If the submitted documents contain significant information, not contained
                      elsewhere in the file, that could not have been submitted during the public
                      comment period and substantially support the need to significantly alter the
                      response action.

               Post-decision information may also be added to the record file if the Agency holds public
               comment periods after the selection of the response  action.  The Agency may hold
               additional public comment periods or extend the time for submission of public comment on
               any issue concerning response selection. All significant comments submitted during such
                                       -8-

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   Compendium
    Models
    Certification
C.  Cost
    Documenta-
    tion File
comment periods, along with any public notices of the comment period, transcripts of
public meetings, and Agency responses to the comments, should be placed in the record
file.

OSWER Directive 9833.4, "Compendium of CERCLA Response Selection Guidance
Documents" (May 1989) is a collection of guidance documents that are frequently used in
the selection of a CERCLA response action. Not all of the documents listed will be used
for the selection of remedy process at every site. The index of the record file must
indicate which documents were used for that particular site as well as identify where
those guidance documents may be obtained. The index to the compendium is included as
appendix B to Chapter VII, Selection of Remedy.

Models of the Administrative Record file structure, index, certification, and notice of
public availability are available as guidance for their preparation.  See the documents
listed at the end of this chapter.

Generally, formal certification of the Administrative Record is required only if and when
the selected remedy becomes the subject of litigation. Such certification should be signed
by the  Regional Administrator's designee after consultation with ORC.  Any certification
of the record should be made by program staff and not legal staff.

Although not required,  the Region may choose to have the Administrative Record
Coordinator certify that the record was compiled and maintained in accordance with
applicable Agency regulations and guidance.  Such certification would attest that the
record  was compiled in accordance with current Agency procedures and  would not
address the completeness of the record file.

Cost documentation is a cooperative effort among the RPM, OSC,  other case team
members, the Regional Financial Management Office (FMO), Headquarters' Financial
Management Office (HQ-FMO), OWPE, and DOJ.

For the Agency to litigate cost recovery actions successfully under section 107 of
CERCLA, proper documentation is essential. The Agency bears the burden of proving
three elements for cost recovery:

        Proof of release or threat of release of a hazardous substance that caused the
        Agency to incur response costs

        Proof of liability of the responsible  party

        Proof of expenditures.

To meet this burden, the Agency must meet the usual civil standard of proving all
elements by preponderance of the evidence.

Regions should consider cost documentation an on-going process. Documents should be
compiled and organized as the pertinent information becomes available.
                                         -9-

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    File Content   The cost documentation file should contain the following documents:
    and Structure
                  •      Case Resolution Document
                  •      Cost Recovery Documentation Checklist
                         Software Package for Unique Reports (SPURs)
                  •      General Correspondence
                         Cost Summary Report
                         Payroll (HQ and Region)
                         Agency Indirect Costs
                         Travel (HQ and Regions)
                         Contracts by Contractor
                         Interagency Agreements by Agency (lAGs)
                         State Cooperative Agreement or State Contract
                         National Enforcement Investigation Center
                         Environmental  Photographic Interpretation Center
                         Miscellaneous Procurement Expenses.
    File           The Cost Recovery Coordinator, in coordination with the Regional Financial Management
    Management   Office, coordinates the collection, assembly, and summarizing of Regional cost
    Process       documents.
                  For more information on documenting costs and activities, see Chapter XII, Cost
                  Recovery.
D.  Storage and   The Records Management Officer in the Information Management Section of the Region
    Maintenance   has the responsibility for maintaining and storing the site files and the Administrative
    of the         Record files. In some Regions, there is an Administrative Records Coordinator who takes
    Records       responsibility for those files. The responsibilities and those who handle them differ from
                  Region to Region. There is currently an initiative through OWPE and the Office of
                  Information Resources Management (OIRM) to establish records management systems
                  for site files in all Regions. Evaluation of current Regional file management format for
                  potential integration with Administrative Record needs should be considered.
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File            File maintenance includes a file maintenance plan, development of charge-out procedures,
Maintenance    and documentation of file use.  For guidance on file maintenance procedures and efficient
               filing procedures, refer to Chapter 7 of OIRM 2160, Records Management Manual (1986).

               Disposition of Inactive Records

               Superfund Records are designated as permanent records and are not subject to
               destruction. Inactive Records  may be transferred to a Federal  Records Center in
               accordance with EPA records control schedules. For general guidance on record
               disposition, refer to Chapter 3 of OIRM 2160, Records Management Manual (1986).
               Specific guidance on disposition of Superfund records is being developed by OWPE and
               OIRM.

               Vital Records

               Vital records are those records deemed crucial to EPA's operation. The vital records
               program is  designed to protect EPA's vital records in case  of disaster or emergency.
               OIRM in Headquarters has established a Superfund Document Management Workgroup to
               address, as one of its tasks, the issue of which Superfund documents fall into this
               category of vital records.  For general guidance on policies  and  procedures,  refer to
               Chapter 4 of OIRM 2160, Records Management Manual (1986).
                                     -11-

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                  III. PLANNING AND REPORTING REQUIREMENTS

A.  Setting        Regions must set priorities for the order in which they plan to organize site files and
    Priorities       compile Administrative Records. Regions should make a concentrated effort to
                  implement the requirements of the proposed regulations with regard to removal and
                  remedial Administrative Records compilation.

R  Planning      Records management plans for site files and Administrative Record files are Region-
                  specific and depend on the state of the Region's record system and the methodology
                  employed.

C.  Budget       Funding for organizing site files is provided from a lump-sum records management budget
                  managed by the Superfund enforcement support section. A standard budget for NPL site
                  file organization ranges from $5,000 for a small site to $20,000 for a large, complex site.
                  Most Regions will have sites which range in size and complexity and will have to balance
                  their budgets accordingly.

                  Funding for Administrative Record  compilation can be obtained through REM, TES, TAT,
                  or 8(a) contracts. The standard budget for RI/FS (REM), removals (TAT), or PRP
                  oversight (TES) is from $5,000 for  a small site to $20,000 for a large and complex site.
                                         -12-

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                  IV.  POTENTIAL PROBLEMS/RESOLUTIONS

A.  Space        Lack of space for Administrative Record compilation, public access, and records storage
                  are common records management problems in the Regions. Also, the large volume of site
                  files can make it difficult to select and obtain documents for the Administrative Record
                  due to lack of file organization. By organizing site files into a central data bank,  Regions
                  are able to establish an adequate base for compilation of the Administrative Record.

                  Due to lack of space, increased record retrieval requirements, tracking needs, and
                  storage limitations, some Regions are moving toward electronic files and microfiche.

B.  Transporting   Some Regions have experienced difficulty in identifying locations for the record at or near
    the Record to   the site, contacting the facilities, and transmitting the records to the site.  Regions have
    the Site       found that working closely with their community relations coordinators can be helpful in
                  identifying facilities, and, in some cases, transporting the records.

C.  ORC and      Regions have experienced difficulty in obtaining adequate and timely participation by the
    RPM          ORC and  RPM/OSC in the Administrative Record due to their  heavy workloads.
    Involvement    Furthermore, the ORC and RPM/OSC perceptions may vary as to what they believe
                  should be  included in the Administrative Record file. Several Regions have found training
                  to be helpful and that early joint involvement  by the RPM/OSC and ORC in record
                  compilation can facilitate the process.
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              V. REFERENCES
Policies        40 CFR Part 300 National Oil and Hazardous Substances Contingency Plan. (March 8,
              1990).
Guidance      OSWER Directive 9360.2-01, "Model Program for Removal Site File Management" (July
Manuals
Contacts
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for Selection of
CERCLA Response Actions" (December 3,1990).
OSWER Directive 9836.0-1 A, "Community Relations During Enforcement Activities and
Development of the Administrative Record" (November 3,1988).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing Superfund Decision
Documents" (July 1989).
OSWER Directive 9832.1, "Cost Recovery Actions  Under CERCLA" (August 1983).
OSWER Directive 9355.0-7A, "Data Quality Objectives for Remedial Response
Activities" (March 1987).
OSWER Directive 9355.0-14, The Compendium of Superfund Field Operations Methods
(December 1987).
OSWER Directive 9833.4, Compendium of CERCLA Response Selection Guidance
Documents (May 1989).
OSWER Directive 9230.0-3B, Community Relations  in Superfund: A Handbook (March
1988).
OSWER Directive 9240.0-01, The  User's Guide to the Contract Laboratory Program
(1986).
OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs in CERCLA § 107
Actions" (January 30,1985).
Office of Information Management 2160, Records Management Manual (January 1986).
The National Enforcement Investigation Center Policies and Procedures Manual (1981).
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch,
FTS 382-5646.
OWPE, CERCLA Enforcement Division, Cost Recovery Branch, FTS 398-8635.
OIRM, Information Management and Services Division, FTS 475-6760.
                                   -14-

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Training       The Office of Information Resources Management is developing three programs for
              CERCLA Records Management:

              1)      Model Site File Management Program

              2)      Superfund Records Management Certification Program

              3)      Evaluation of Superfund Records Management Initiative.

              For additional information, contact OIRM, Information Management and Services
              Division, FTS 475-6760.

              Administrative Record

              OWPE periodically provides training workshops on the Administrative Record.  For
              more information, contact CERCLA Enforcement Division, Guidance and  Evaluation
              Branch, FTS 382-5646.

              CERCLA Cost Documentation

              OWPE and the Office of the Comptroller are available to provide training  in overall
              cost recovery procedures and use of the Cost Documentation Management System
              (CDMS). Contact CERCLA Enforcement Division, Cost Recovery Branch, FTS
              398-8635.
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                        CASE  BUDGET/CONTRACTS


I.     DESCRIPTION OF ACTIVITY	1

      Introduction	1

II.    PROCEDURES  AND  INTERACTIONS	3

      A.     Case Budget Process	3
             Budget Development	3
             Resource Allocation	3
             Pricing Factors	3
             Negotiating Changes	3
      B.     Delegations of Responsibility	4
      C.     Purpose and Scope of Contracts	4
      D.     Work Assignment Manager Responsibilities	4
             Pre-lssuance Period	4
             Post-Issuance Period	5
                   Administrative Responsibilities	5
                   Technical Responsibilities	5
             Work Assignment Ctose-out	6
             Restrictions on the WAM	7

III.   PLANNING  AND REPORTING REQUIREMENTS	8

      A.     Relationship to SCAP	8
      B.     Obligating Documents	8
      C.     Effective Dates	8
      D.     Non-Site-Specific Funds	9
      E     Contractual Issues	9

IV.   POTENTIAL  PROBLEMS/RESOLUTIONS	10

      A.     Estimating  Costs	10
      B.     Scope of Work (SOW)	10
      C.     Conflicts of Interest	10
      D.     Poor Quality Contractor Work	11

V.    REFERENCES	12

      Policies	12
      Guidance	12
      Manuals	12
      Training	12
      Contacts	12

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                                CASE BUDGET/CONTRACTS
                  I.  DESCRIPTION OF ACTIVITY

Introduction        This chapter discusses the procedures and mechanisms by which RPMs plan and use
                  EPA's extramural resources for Superfund enforcement program support.  These
                  resources are referred to as the enforcement Case Budget.  The Case Budget includes
                  the funds for most work performed by contractors, other Federal agencies under Inter-
                  Agency Agreements (lAGs), and States under State Cooperative Agreements (CAs).
                  This chapter describes how Case Budget funds are planned, allocated, and distributed,
                  as well as the requirements an RPM must follow in obtaining and managing these
                  resources. It is important for RPMs to understand the contract management process
                  because the Superfund program  relies on contractors for technical input and support.
                  RPMs must be familiar with  contract management procedures to ensure that the
                  contractor and other extramural  resources are used effectively.  RPMs also must be
                  familiar with the Case Budget planning process so that they can ensure the necessary
                  funds are available when needed.

                  Extramural Case Budget resources support a wide variety of Regional and
                  Headquarters enforcement activities. The five general categories that  the Case Budget
                  funds are:  identification of PRP(s); negotiations; PRP  oversight through the RI/FS;
                  litigation; and program implementation. The  process used for planning Case Budget funds
                  is integrated with the SCAP, budget distribution, and  Advice of Allowance (AOA)
                  processes. Information on Regional Case Budget requests is stored in the CERCLA
                  Information System (CERCLIS/WasteLAN), which  is used to allocate available
                  extramural funds among the Regions and to track approved Case Budget Technical
                  Enforcement Support (TES)  work assignment tasking and  non-TES obligations. In
                  addition, OWPE has developed the Technical Enforcement Support Work Assignment
                  Tracking System  (TESWATS), which provides a method for tracking the status of each
                  work assignment issued under the Technical Enforcement Support (TES) contracts.

                  The Case Budget and the response program planning process are closely linked to the
                  SCAP target-setting process.  The largest share of Case Budget funds is tied directly to
                  the Regions' SCAP targets,  based on estimates of the average level of resources
                  required to support each activity. For some activities, such as RI/FS oversight,
                  resources are allocated on a quarterly basis from the time the activity starts until it is
                  completed.  Therefore, resources may be available to  support these activities in fiscal
                  years when no SCAP-targeted activity will occur.  In these cases funding is limited to a
                  finite length of time for budget purposes.  For example, RI/FS activities are normally
                  limited to 10 quarters worth  of funding and cost recovery litigation to 12 quarters.
                  Extramural funds are provided for ongoing quarters during the fiscal year.  Requests for
                  these activities should, therefore, be limited  to the amount needed during the FY that is
                  being planned.

                  Identification of the budget source when planning enables each program to develop an
                  annual extramural budget and facilitates the AOA process.  The six budget sources for
                  extramural resources that correspond to the program elements are: Enforcement,
                  Remedial, Removal, Headquarters Remedial, Headquarters Removal, and Federal


                                         -1-

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Facilities.  Use of these budget sources for support of any specific activity is dictated by
one or more of the following:  Congressional appropriations authority; Office of
Management and Budget (OMB) directives; EPA Office of Comptroller guidance; and
Office of Solid Waste and Emergency Response (OSWER) administrative policy and
guidance.  Thus, oversight of PRP-conducted RD/RA activities is funded through the
Regional Remedial extramural budget by OSWER administrative policy.  Refer to
Chapter XVII, SCAP/STARS Cycle, for a more detailed description of the SCAP
process.

Exhibit XVI-1 shows the iterative process that takes place  between Headquarters and
the Regions, whereby the Case Budget is determined according to Regional needs,
national priorities, and funding needs. Exhibit XVI-1 reflects both Regional and
Headquarters responsibilities with respect to Case Budget planning and obligations.

CERCLIS/WasteLAN is the system used by the Regions and Headquarters to
communicate during  the Case Budget process. The Regions are responsible for entering
data on planned activity dates, funding requirements, and contract vehicles into
CERCLIS/WasteLAN during the SCAP target-setting negotiations.   Headquarters uses
planning data and negotiated targets to allocate the Region's Case Budget funds.

The  primary contract vehicles for enforcement support are the TES contracts. The
purpose of these contracts is to assist EPA in PRP oversight, community relations, case
support, negotiations with responsible parties, and referrals to DOJ. The TES V through
XII contracts are available for Regional use.  The  contracts will  last for five years and
consist of  two contractors available in each of four zones across the country. The
coverage of these contracts is shown below:

Zone              Regions                 TES Contracts
 1                 landII                  Vand VI

 2                 III and IV                VII and VIII

 3                 V, VI, and VII            IX and X

 4                 VIII, IX, and X            XI and XII

Additional contracts  available for enforcement support  include the Alternative Remedial
Contracts  Strategy  (ARCS) contracts and 8(a) firms.   Regardless of the contract
vehicle that is used, RPMs generally act as Work Assignment Managers (WAMs) for
specific projects that affect their sites.  This role includes both administrative and
technical responsibilities. WAMs must develop the scope of work for the project, review
the work plan, track  project progress, and close out the assignment upon its completion.
They must also provide technical guidance to the contractor and ensure that  the
contractor's work meets the Agency's standards for quality.

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                                  Exhibit XVI-1
                             Case Budget Data Flow
                                                                  HQ
                                                           RESPONSIBILITIES
           REGIONAL
       RESPONSIBILITIES
                                                        MID-YEAR SCAP NEGOTIATIONS
                PLAN SCAP ACTIVITIES,
                IDENTIFY TARGETED AND
                NON-TARGETED FUNDING
                       NEEDS.
                                                    REVIEW REGIONAL
                                                    REQUESTS, APPLY
                                                    PRICING FACTORS,
                                                      TO BASELINE
                                                      TARGETS TO
                                                      CALCULATE
                                                      PRELIMINARY
                                                    ALLOCATIONS TO
                                                    REGIONS, POSSIBLE
                                                    ADJUSTMENTS TO
                                                     DOLLARS AND/OR
                                                       CONTRACT
                                                      MECHANISM
             MID-YEAR SCAP NEGOTIATIONS
                                                     NEGOTIATED
-  MARCH/
    APRIL
                 CONFERENCE WITH HQ
                 TO DISCUSS REQUESTS
                      (ONGOING)
                                           CONFERENCE WITH REGIONS
                                              TO DISCUSS REQUESTS
                                                  (ONGOING)
                                                        NOTIFICATION TO REGIONS OF
                                                         PRELIMINARY CASE BUDGET
                                                               ALLOCATION
 INDICATE CASE BUDGET
     NEEDS WITHIN
 ALLOCATION (APR) AND
ABOVE ALLOCATION (ALT)
                                                            DETERMINATION ON
                                                          SUPPLEMENTAL REQUEST
             AUGUST SCAP NEGOTIATIONS
                                            AUGUST SCAP NEGOTIATIONS
                                                               NOTIFICATION TO
                                                             REGIONS OF FINAL CASE
                                                             BUDGET ALLOCATION
  REVISE REQUESTS IN
ACCORDANCE WITH SCAP
    NEGOTIATIONS
-SEPTEMBER
                 DIRECT ENTRY OF
                NON-TES OBLIGATIONS
                   (CAs, lAGs, PRs)
                                                                REVIEW REGIONAL
                                                              OBLIGATIONS, TASKING
                                                              AND REVISED PLANS IN
                                                               ACCORDANCE WITH
                                                                 GUIDANCE AND
                                                              CHANGING PROGRAM
                                                                   PRIORITIES
   DIRECT ENTRY OF
   TES OBLIGATIONS
    DIRECT ENTRY OF
      TES TASKING
                ADJUSTMENT OF CASE
                BUDGET PLANS BASED
               ON BUDGET EXECUTION
               (AT LEAST QUARTERLY)
                                                                   REPORTS )

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                  II. PROCEDURES AND INTERACTIONS
A.  Case Budget
    Process
    Budget
    Development
    Resource
    Allocation
    Pricing
    Factors
    Negotiating
    Changes
This section discusses the specific procedures that the Regions and Headquarters follow
in implementing the Case Budget process and managing enforcement work assignments.
It begins with a brief discussion of the budget development and allocation processes and
focuses on the RPM's role in contract management.

The EPA budget process has two major components that are closely linked. The first,
which is used to determine the total level of resources available to the Agency for the
Superfund program, is the budget development process. The second component focuses
on allocating the total available resources among the Regions.

The amount of extramural funds that are available nationally is determined by the
Federal government's budget development  process. This process involves a planning
cycle in which each agency, including EPA, submits its estimated resource needs to
Congress at the beginning of each calendar year.  The estimated resource need is based
on Regional planning data in CERCLIS/WasteLAN.  Congress reviews the Agency's
requests  and, shortly before the beginning of the fiscal year, determines the appropriate
funding level.  The budget becomes effective once the President signs the appropriations
bill.

Once the total level of available resources has been determined, those funds are
allocated to the Regions based on need and program priorities.  Case Budget funds are
formally distributed to the Regions through the quarterly ADA process.  ADA
distributions are based primarily on average pricing factors and the targets and
measures for SCAP activities, as listed in CERCLIS/WasteLAN.  Additional funds are
provided  for enforcement activities that the Region anticipates, but that are not
themselves SCAP targets or measures, such as Administrative Record compilation and
program management needs. The targets and measures are developed by Headquarters
and the Regions, based on workload model activities, personnel allocations for each
activity, the availability of funds,  the priority of the sites needing support, and
Congressional and Agency priorities. Resources are allocated from the Headquarters
and Regional offices of the removal, remedial, and enforcement programs, each of which
has a separate AOA.

Headquarters and Regional program managers have developed pricing factors  for most
enforcement activities.  These pricing factors are estimates of the national average
extramural cost of each major activity.  They are intended to guide the Regions in
estimating their resource needs for upcoming fiscal years. These factors are reviewed
annually. Adjustments to these factors, as applied to individual sites, may be made
during SCAP negotiations based on site peculiarities, and the Regions' histories of
changing targets and measures over the course of the fiscal year.  The current year's
pricing factors can be found in the OSWER SCAP Manual.

If a Region identifies a significant change in the resources that will be required to support
its enforcement activities, it can negotiate to change its Case Budget allocation. While
there are rarely any additional funds available on a nationwide basis, shifts between
Regions are negotiated among the Regions and Headquarters at the mid-year and prior to
                                          -3-

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                  the fourth quarter. Each Region has an opportunity to present its needs and
                  Headquarters decides which AOAs to change based upon national priorities,
                  performance, and any unanticipated site problems or activities.

E  Delegations of  In FY89, the Regions began playing a significant role in both the financial and contractual
    Responsbility  management of the enforcement program.  In the area of financial management, the
                  Regions are responsible for obligating all funds.  This includes mechanisms such as TES
                  V+, State Cooperative Agreements (CAs), ARCS,  8(a) contracts, small purchases,
                  and site-specific contracts.  The Regions are also responsible for ensuring that the total
                  funds obligated do not exceed the Region's AOA for non-TES and TES V+ funds.
                  Additional information on financial management is available in the OSWER  SCAP
                  Manual.

                  Contractually, the Regions are responsible for reviewing and recommending payment of
                  each invoice and voucher submitted  under contracts and other vehicles for which they
                  have financial management responsibilities. For all TES contracts, Project Officer
                  approval authority for work assignments has been delegated to the Regional Project
                  Officers. Under this delegation, the Regions are responsible for WA initiation and
                  tracking, performance evaluation, and WA closeout where necessary.  In addition, the
                  Regions must ensure that the necessary SCAP information is complete and available to
                  track each  transaction in TESWATS and CERCLIS/WasteLAN.

                  EPA has contracts with TES contractors to assist the Agency in carrying  out its
                  enforcement activities. The TES contracts are multi-year level-of-effort (LOE)
                  contracts and, as such, allow specific tasks to be assigned to the contractors on an as-
                  needed basis, within the restrictions of the  overall contract statement of work.  Hours
                  are assigned to a project based upon EPA's estimate of the level of effort required to
                  complete the project. In addition, the Regions have access to other contract vehicles that
                  may be used to support Enforcement activities. These include:  ARCS, 8(a) contracts,
                  small purchases,  and site-specific contracts.  Each of these is discussed in Exhibit XVI-2.
                  lAGs also may be used to support Regional enforcement activities.  OWPE currently has
                  an IAG with DOJ for legal representation to EPA for the Superfund Enforcement
                  Program. Regions may initiate lAGs with the U.S. Army Corps of Engineers, the U.S.
                  Geological Survey, and the U.S.  Fish and Wildlife Service.  A detailed discussion of the
                  use of State Cooperative Agreements can be found in Chapter XIV, State Enforcement.

                  In many instances, the RPM will act as the Work Assignment Manager (WAM) on
                  work assignments at sites that are his/her responsibility.  This section describes the
                  administrative and technical responsibilities of the EPA WAM prior to issuance of a
    Responstil-    work assignment  under an EPA contract and throughout the period of performance
    Hies           of the project.

    Pre-lssuance   Before the work assignment is issued, the WAM is responsible for defining and preparing
    Period         the Scope of Work (SOW), and ensuring that the approach to accomplishing the project is
                  within the contract's statement of work. This includes a review of  the potential
                  contractor's staffing to see that the level of personnel is sufficient to perform the work
                  and a determination of the adequacy and reasonableness of the level and allocation of
                  resources for various tasks  under  the WA.
C.  Purpose and
    Scope of
    Contracts
D.  Wot*
    Assignment
                                         -4-

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               Additionally, the WAM is responsible for identifying the applicable appropriation for the
               WA, the period of performance, project schedule and milestones, travel requirements, and
               any government property or equipment needed to successfully complete the assignment.
               Once the WAM has assembled this information, the WA should be discussed with the
               Section Chief for a determination of the project's priority.

Post-Issuance  The WAM's post-issuance responsibilities can be divided into two broad categories:
Period         administrative and technical. Both are critical to the effective use of EPA's contractor
               resources.

               Administrative Responsibilities

               The WAM's administrative responsibilities begin with the review and approval of both the
               cost and technical aspects of the contractor's work plan.  In addition, the WAM has
               monthly responsibilities that include reviewing and approving or disapproving contractor
               vouchers, and reviewing progress reports to identify any potential problems.  If problems
               are identified, the WAM should contact the Regional Project Officer (RPO) and discuss
               possible solutions. Additional post-issuance responsibilities include: providing any
               information on WA status required by contract managers; preparing technical direction
               memoranda and changes to level of effort; and assisting in the closeout of the work
               assignment once all work is completed. In addition, an important administrative
               responsibility of the WAM is  to provide periodic information on the contractor's
               performance  to be used in the performance evaluation process that determines the
               contractor's award fee.  The WAM is required to prepare a Performance  Evaluation
               Report (PER) on a periodic basis (usually a trimester) defined by the Performance
               Evaluation Board for the TES contract being used.  The WAM may be asked to assist in
               developing performance evaluation summary reports for the RPO.

               Technical Responsibilities

               In addition to the WAM's administrative responsibilities, he/she acts as the principal
               technical contact between the Agency and the contractor. In this role the WAM must
               ensure that the contractor has any necessary guidance and policy materials to ensure
               proper completion of the project, monitor and oversee all contractor work to verify that
               required quality standards are met, provide technical direction where necessary, and
               review and approve or reject all project deliverables. The WAM is ultimately responsible
               for the quality of the contractor's work.

               The WAM's technical management of the WA is critical to the success of the project. On
               major  projects, the WAM should meet regularly with the contractor to monitor progress
               on the work assignment. These meetings may be weekly, monthly, or bi-monthly,
               depending on the level of activity on the assignment. At these meetings, the WAM should
               request a status report that describes the progress made since the previous meeting,
               any problems that have  been encountered, any changes in approach that are anticipated
               by the contractor, and the next activity that the contractor expects to perform.  In
               addition to regular meetings, the WAM should review drafts of major deliverables to
               ensure that the project is moving in the right direction. Where on-site work is involved, the
               WAM should go with the contractor to the site on a periodic basis to monitor the work
               that is performed.
                                       -5-

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              In addition to these general management responsibilities, the following are examples of
              the types of WAM involvement that may be required for two different types of
              enforcement assignments.

              PRP Search:

              •       Identify existing materials that may contain relevant information on PRP
                      identities

                      Arrange access to information in EPA and State files

                      Provide the contractor with information about the technical conditions at the
                      site

                      Review the draft PRP Search Report to identify any additional data that
                      may be missing

                      Ensure proper management review of the PRP Search Report

                      Work with the contractor to identify additional tasks that will be needed to fill
                      gaps  in the data

                      Review drafts of the interim final report to ensure completeness and
                      accuracy.

              RI/FS Oversight:

                      Provide the contractor with complete records of the technical conditions at the
                      site

                      Provide the contractor with all settlement agreements and PRP work schedules

                      Work with the contractor to determine the necessary level of on-site presence
                      during sampling events

                      Review the contractor's analysis of the  PRP's technical performance.

Work          Upon completion of the work assignment, the contractor will submit a final report
Assignment   summarizing the total costs for the project and a summary of the work that was done.
Close-out     The WAM is responsible for verifying that the WA has been completed fully and
              satisfactorily and for  preparing  the necessary performance evaluation report. If
              budgeted, a meeting  may be held between the WAM and the contractor to review the
              project's performance and completion.
                                      -fi-

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Restrictions    During the course of directing a work assignment, the EPA WAM shall not:
on toe WAM
                      Make changes or issue orders that will affect the terms and conditions of the
                      contract (only the Contract Officer has  such authority)

                      Give technical direction that will increase costs and level of effort or change the
                      technical approach of the project

                      Authorize services or work to begin before issuance of the work assignment

                      Direct or request the contractor to perform services that create an
                      employee/employer conflict

                      Create a conflict of  interest situation

               •       Direct the placement of a subcontract.

               The WAM mav:

                      Oversee the progress  of the contract

                      Issue technical direction which is consistent with the statement of work and does
                      not require an increase in estimated cost or fee or a time extension

                      Amend the work assignment if there is an increase or decrease in the level of
                      effort, a significant change in the budget, or modifications to the scope of work.
                      Work assignment amendments must be approved by the Project Officer and the
                      Contract Officer before the changes take effect.

               In summary,  the WAM should not direct the contractor to do anything that might bind the
               government to pay for additional goods or services not anticipated in the current work
               plan for the WA.
                                      -7-

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A.  Relationship
    to SCAP
a  Obligating
    Documents
C. Effective
   Dates
III.  PLANNING AND REPORTING REQUIREMENTS

The CERCUS/WasteLAN database has been designed to accommodate data describing
site-specific and non-site-specific planned and actual obligations and TES tasked
amounts.  It is the primary mechanism for tracking the planning and utilization of Case
Budget funds.  Although the Integrated Financial Management System (IFMS) is the
official Agency system for tracking obligations, commitment, and expenditures of
Agency funds, these data are periodically down-loaded into CERCLIS/WasteLAN from
IFMS. Within CERCLIS/WasteLAN, the site-specific planned obligations will be entered
directly into the appropriate Event or Enforcement Activity record for the site.  Non-site-
specific planned obligations are entered by the Regions into CERHELP, the non-site-
specific portion of CERCLIS/WasteLAN.

TESWATS is intended to facilitate management of the large volume of work
assignments under the TES contracts. This system, maintained  by both Headquarters
and Regional staff, contains information about the financial status of each active TES
WA. Regional staff are responsible for entering the date the WA is initiated and the
project budget. Headquarters staff enters data concerning when  a work assignment is
approved by the contracting officer. Other major dates, such as WA amendments, are
entered by the Region. The RPM should be aware that the information on the work
assignment forms, used to initiate and amend TES work assignments, is also used to
enter this  data into TESWATS and WasteLAN.

As discussed previously, the Case Budget planning process is directly related to the
SCAP target-setting negotiations that take place in February and August of each fiscal
year.  RPMs must actively participate in that process to ensure that sufficient funds are
available to support each planned and ongoing enforcement action. The SCAP process is
described  in  detail in  Chapter XVII, SCAP/STARS Cycle.

In addition to participating in the SCAP process, the Regions are responsible for entering
key data on extramural obligations and tasking into CERCLIS/WasteLAN.  These data
should be entered by the 5th working day of each month. The Regions are responsible for
verifying that the information in IFMS, TESWATS, and CERCLIS/WasteLAN  is
consistent.

To assist in the allocation and tracking process, the following information must appear on
all Regionally-prepared obligating documents: EPA ID number, site spill ID number,
operable unit number, CERCLIS/WasteLAN  Event or Activity code, work assignment
number, and dollars obligated or tasked.  For TES work assignments, the TESWATS
system is unable  to accommodate, and the contracting officer is therefore unable to
approve, requests that do not include this information. The proper account numbers must
be determined for each transaction before the commitment or obligation is made.

A Cooperative Agreement is considered obligated when it is signed by the Regional
Administrator; an  IAG  is considered obligated when it is signed by the other agency;
contracts are considered obligated when the Contract Officer signs the obligating
document  (e.g., for TES, the obligating document is the work assignment, for 8(a) firms,
the  obligating document is the contract).
                                         -ft-

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D.  Non-Site-      Non-site-specific plans should indicate total dollars requested for an activity that the
    Specific       Region is unable or does not wish to indicate site-specifically.  Non-site-specific records
    Funds         should also indicate the number of sites at which an activity is expected to occur, as well
                  as the contract mechanism. Headquarters requires this information for the Regional
                  Case Budget allocation.

£  Contractual   Preparation of a funding document is the primary step in the process of committing and
    fesues         obligating funds made available through the Superfund program's AOA. The funding
                  document specifies the commitment date, the amount, and the funding vehicles, including
                  contracts, Cooperative Agreements, and lAGs.  The Integrated Financial Management
                  System establishes the official obligation date and other pertinent data when the
                  transaction is entered into IFMS. These documents must be used whenever Superfund
                  AOA funds will be used.

                  The SCAP Manual is the definitive statement of policy and procedures on the handling of
                  SCAP-related information. Therefore, RPMs should refer to the most recent version  of
                  that manual for current information on financial reporting requirements.

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                  IV. POTENTIAL PROBLEMS/RESOLUTIONS

                  This section presents some of the problems that may be encountered by an RPM
                  participating in the Case Budget process or managing enforcement contracts.

A.  Estimating     Due to environmental differences throughout the Regions, costs and LOE estimates for
    Cosfs         similar projects, such as RI/FS oversight, may vary dramatically.  Therefore, it is
                  important to make estimates based on the activities to be completed in the particular
                  Region, and not on national averages. RPMs should consult with others who have done
                  similar work under similar conditions to more accurately estimate the likely costs of any
                  given project. However, because resources are allocated based on average pricing
                  factors, if one project in a Region will cost more than the average, the Region should be
                  prepared to identify another project that will require fewer resources than allocated in
                  the average pricing factor.

                  From a national planning perspective, the  issue of keeping pricing factors comparable
                  with "real world" costs has always been an area of concern for the Federal government.
                  Therefore,  it is imperative that those who contribute to the pricing factor development
                  process be kept abreast of the latest estimates of site clean-up activity costs.

B.  Scope of      When the RPM develops a SOW for  a work assignment, it is important to clearly define
    Work (SOW)   the process and products that are  required. The SOW will  act as the contractor's guide
                  to performing the assignment, and the more direction that is provided, the better the final
                  product will be. Where unusual site conditions or the unavailability of critical data will
                  affect the project approach, the RPM should clearly identify these problems in the SOW
                  and allow for alternative approaches.

                  To the extent possible, the SOW should set forth a detailed approach to the project and
                  should include an outline of the deliverables that are expected.  In addition, a time
                  schedule for the deliverables should be presented that includes periods for RPM review of
                  draft deliverables and that reasonably reflects the time constraints on the RPM.  The
                  SOW should also identify any applicable guidance, such as the PRP Search Manual, that
                  may assist the contractor in performing the assignment.

C.  Conflicts of   There are two areas in which conflicts of interest may be raised as an  issue of concern
    Interest       to the WAM.  The first is the WAM's personal conduct. The second area of concern is
                  the contractor's commercial or business activities  with clients other than the government
                  that could pose problems with performance of the work assignment.

                  In regard to personal conduct, the WAM must be familiar with the U.S. EPA Guidance on
                  Ethics and Conflicts of Interest document of February 1984 as well as similar provisions
                  outlined in  Chapter 5 of the U.S. EPA Project Officers' Handbook.  Second Edition, dated
                  April 1984. Based on this information, the WAM must avoid any actual, apparent, or
                  potential conflict in the work assignment and the contract.  The WAM will not participate
                  knowingly in the contract where a conflict of interest could arise and will immediately
                  report to the  Project Officer any circumstance that could raise this issue.  Basically, a
                                          -m-

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                  conflict of interest arises when the WAM has financial or personal interest in the
                  regulated community.

                  The contractors have established a formal procedure to identify and resolve any
                  potential, apparent, or actual conflict of interest.  The conflict issue may arise whenever
                  the contractor has a client other than the U.S. EPA. EPA's concern is to protect the
                  contractor's integrity for supporting EPA's enforcement mission.  The WAM may be
                  called upon for information whenever there is awareness of a commercial activity of the
                  contractor that could be in conflict with the work assignment.  Any knowledge of such a
                  commercial activity must be reported to the project officer immediately. This second
                  type of conflict is particularly important in the enforcement area, because TES
                  contractors may  need to testify in court if EPA decides to sue the PRPs.

D.  Poor Quality   WAMs are responsible for ensuring that contractors maintain a high standard of quality
    Contractor    on their work. To assist in this, the WAM needs to outline specifically in the SOW what
    Work          services are to be provided, the time frames involved, and the reporting requirements.
                  Also, strict Quality Assurance/Quality Control (QA/QC) procedures should be applied
                  to each phase of a work assignment, rather than at the end of the assignment only.
                  However, if poor-quality work is consistently delivered by a particular contractor to the
                  Agency after these measures have been taken, the most effective way to  eliminate this
                  problem is to issue a stop-work-order, after consultation with the Project Officer and
                  Regional management. Stop-work-orders can only be issued by the Contract Officer.
                  Poor contractor performance can be addressed by scheduling meetings with the
                  contractor to state the Agency's concerns in this respect, and if necessary, elevating
                  the issue to the contractor's and Agency's upper management. Another avenue
                  available to improve contractor performance is to note poor performance in a
                  performance evaluation report which is then reviewed by the Performance  Evaluation
                  Board. Poor performance can thus be reflected  in the award fee provided to the
                  contractor during this periodic review.

                  Extensions of a period of performance and expansions of a work assignment budget
                  should be accomplished only through an approved work assignment amendment.  Verbal
                  instructions to the contractor, in this regard, by the RPO, or WAM are never acceptable.
                  By providing verbal instructions, a WAM could so mislead a contractor that the
                  government would be bound to pay the contractor's costs for services rendered on a
                  theory of quasi-contract.  A quasi-contract is not a contract,  but a theory  that the
                  government should pay for rendered services. Case law indicates that the government
                  could hold an employee liable for costs in such a  situation.  This position has never been
                  tested in  relation to an EPA  employee.
                                          -11-

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              V. REFERENCES

Policies       Office of Administration, Grants Administration Division, "The Interagency Agreements
              Policy and Procedures Compendium" (1988).

Guidance      "U.S. EPA Guidance on Ethics and Conflicts of Interest" (February 1984).

Manuals       OSWER Directive 9871.0, "Roles and Responsibilities of Regional Project Officers and
              Work Assignment Managers Under the Technical Enforcement Support (TES)
              Contracts" (May 3, 1989).

              OSWER Directive 9200.3-01, SCAP Manual (updated annually).

              U.S. EPA Project Officer's Handbook. Second  Edition (April 1984).

Training       Required training course for all  POs, WAMs,  and/or DOOs, "Contract Administration
              Training for Project Officers, Work Assignment Managers, and  Delivery Order Officers,"
              is offered in all Regions by the EPA Institute.

              TESWATS Training is also available from OWPE, CERCLA Enforcement Division,
              Contracts and Planning Branch. This office, as well as Regional Project Officers, can
              provide guidance on preparing work assignments, performance evaluation reviews, cost
              verification forms,  etc.

              Case Budget Training is offered  on an as needed basis from the Contracts and Planning
              Branch within OWPE's CED.

Contacts      Office of Waste Programs Enforcement, CERCLA Enforcement Division, Contracts and
              Planning Branch.  FTS 398-8606.
                                     -1?-

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                            SCAP/STARS  CYCLE
I.     DESCRIPTION OF ACTIVITY	1

      Introduction	1
      SCAP	1
      Budget	2
      FTEs	2
      STARS	2
      SCAP/STARS Relationship	2
      CERaiS/WasteLAN	2
            CERCLIS/WasteLAN Database	3
            CERHELP Database	3

II.    PROCEDURES  AND  INTERACTIONS	5

      A.    The SCAP Process	5
      B.    The IMC	5
      C.    Targets/Measures	5
      D.    Development of Reporting Measures	6
      E    Target Setting	6

III.    PLANNING AND REPORTING REQUIREMENTS	7

      A.    SCAPPIanning	7
      B.    Quarterly Planning Process	7
      C.    SCAP/STARS Adjustment/Amendments	7
      D.    STARS Target Adjustments	8
      E    Planning Requirements and Procedures	8
      F.    Accomplishment Reporting	9
      G.    STARS	9
      H.    SCAP	9
      I      Financial Planning and Management	9
      J.     CaseBudget	10
      K.    Advice of Allowance	10
            AOA Process	10
            AOA Change Request Procedures	11

IV.    POTENTIAL  PROBLEMS/RESOLUTIONS	12

      A.    Data Quality and Planning in CERCLIS/WasteLAN	12
      B.    Headquarters/Regional Negotiations	12
      C.    Interpretation of Definitions	12
      D.    Impact of Schedule Changes on SCAP	12

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V.    REFERENCES	13

      Manual	13
      Contacts	13
      Training	13

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                                   SCAP/STARS CYCLE
Production
SCAP
I.  DESCRIPTION OF ACTIVITY

This chapter provides an overview of the Superfund Comprehensive Accomplishments
Plan (SCAP) process and its relationship to the Agency-wide Strategic Targetted
Activities for Results (STARS).  More specific information on the process can be
obtained from the Superfund Program Management Manual or SCAP Manual which is
updated annually.  RPMs, OSCs and Information Management Coordinators (IMCs) play
important roles in providing timely and accurate site information for entry into the
Comprehensive Environmental Response, Compensation, and Liability Information
System  (CERCLIS/WasteLAN)--the database from which SCAP and STARS reports
are generated. SCAP and STARS reports help plan, budget, track and evaluate
Superfund program progress. The schedules and time frames presented in this chapter
are for fiscal year 1991 and are subject to change.  IMCs will be informed of any changes
that occur.

The SCAP process is used by the Superfund program to plan, budget, track and
evaluate progress toward Superfund site cleanups. The SCAP process generates data
that fulfills the following functions:

•       Tracking of accomplishments

       Updating planning (schedules and funds) for the current fiscal year

       Providing planning data for outyear (e.g., the year after the planned fiscal year)
       budget purposes

       Responding to information requests from various sources including Congress and
       the Office of Management and Budget (OMB).

The SCAP planning process is  a dynamic effort that has a significant impact on
Superfund resource allocations and program evaluation.  Planned obligations for the
response budget and case budget, and STARS targets and measures are generated
through  SCAP.  CERCLIS/WasteLAN data is the main source of information for the
Superfund budget and evaluation process. The SCAP process is managed at
Headquarters by the Office of Waste Programs Enforcement (OWPE) and the Office of
Emergency and Remedial Response (OERR). STARS is managed by the Office of
Management Systems and Evaluation (OMSE).

The SCAP process is crucial to  Superfund program planning, tracking, and evaluation.
SCAP tracks progress at each site and allows Regions  and Headquarters to forecast
site and  program directions. The Agency Operating Guidance identifies Superfund
priorities for the upcoming year, and SCAP targets  and measures are designed to reflect
these goals.  In some cases, new SCAP categories are developed; in other cases, the
projections for SCAP activities are  adjusted to match the Agency's goals.
                                        -1-

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Budget
FTEs
STARS
SCAP/STARS
Relationship
CERCLIS/
WasteLAN
SCAP information is a subset of the site data collected through the
CERCLIS/WasteLAN system.  The CERCLIS/WasteLAN system consists of two
databases, CERCLIS/WasteLAN and CERHELP, which are discussed on the following
pages.

Budget formulation and distribution is a three year process. Two years prior to the
fiscal year being planned the budget formulation process begins. This process is called
the outyear budget development. During the outyear, project plans and schedules are
reviewed to determine the resources needed to support the Superfund Enforcement
Program. Resource requirements are based on CERCLIS/WasteLAN data. For
example, the SCAP existing in CERCLIS/WasteLAN at the start of the third quarter of
FY91 will be used to formulate the National FY93 budget.

During the planning year, which is one year prior to the FY being planned, Regional project
planning data are reviewed for changes. Based on these revised CERCLIS/WasteLAN
data, Regional distributions are determined using the OWPE Distribution Model.

Once the FY begins, Regions receive quarterly allocations to support projects planned
two years prior.  The FY is referred to as the operating year.

SCAP forms the basis of the Superfund workload models that distribute FTEs for each
program and Region. There are two Superfund program models, the Site and Spill
Response model, which distributes resources for the pre-remedial,  remedial, and removal
programs, and the Technical Enforcement model, which distributes enforcement FTEs.
The preliminary and final distributions of Regional and program  resources for the
upcoming fiscal year are based on the planning information contained in
CERCLIS/WasteLAN in the second quarter and the end of August,  respectively.

STARS is the Agency-wide system  used  by the  Administrator  to set targets for, and
monitor the key environmental objectives identified in the Agency's Operating Guidance
for each fiscal year. National and  Regional STARS goals for Superfund are established
and tracked through SCAP.  Based on CERCLIS/WasteLAN, STARS targets and
measures are reported quarterly by Headquarters and the Regions to OMSE. In some
Regions, RPMs/OSCs are responsible for entry of this data into  CERCLIS/WasteLAN.
OMSE tracks Regional  progress toward STARS goals on a quarterly basis as part  of
the overall Agency performance evaluation process.

STARS targets and measures are a subset of those contained in SCAP, and STARS
accomplishments are generated through SCAP in CERCLIS/WasteLAN.  SCAP and
STARS planning and reporting cycles are  set independently of each other.  The STARS
reporting cycle is a quarterly cycle, whereas the SCAP reporting cycle is monthly.
Negotiation of SCAP and STARS targets  and measures occur  in a two-stage process.
Preliminary project targets are set in March; final target and measures are set in
August.  The latter set represent the Region's commitments for the  upcoming FY. At
Headquarters, OWPE and OERR coordinate SCAP and STARS.

The CERCLIS/WasteLAN system consists of two databases:  one  site-specific
database, CERCLIS/WasteLAN, and a second non-site-specific database, CERHELP.
                                        -2-

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SCAP information is a subset of the site data collected through the
CERCLIS/WasteLAN system, thus CERCLIS/WasteLAN tracks the SCAP.  Data
entry responsibilities and report retrieval abilities are at the Regional level so that
Regional managers and users play a central role in maintaining and using the database.
Headquarters relies on the CERCLIS/WasteLAN system as the sole repository of
information on plans and accomplishments.

CERCLIS/WasteLAN Database

CERCLIS/WasteLAN is a database that is used by  Headquarters and Regional
personnel  for Superfund site, program, and project management.  CERCLIS/WasteLAN
contains the  official inventory of Superfund sites and supports site planning and tracking
functions.  Planning encompasses estimating project schedules as well as projecting
financial requirements, which are part of the SCAP. In CERCLIS/WasteLAN, financial
data are integrated with data from the pre-remedial, remedial, removal, and enforcement
programs.  Through CERCLIS/WasteLAN,  Regions and Headquarters can see integrated
financial and scheduling data for the pre-remedial, removal, remedial, and enforcement
programs.  The CERCLIS/WasteLAN database contains site, operable unit (OU),
enforcement activity, technical, and financial information.  Each week, financial data
from the Agency-wide Integrated  Financial Management System (IFMS) are transferred
into CERCLIS/WasteLAN. The data transferred include such information as
commitments, decommitments, obligations, deobligations, outlays, credits, transaction
dates, obligating document numbers, and funding vehicles. TES work assignment
amounts are entered manually into CERCLIS/WasteLAN on a periodic basis. The
source for this information is the  TES Work Assignment Tracking System (TESWATS).

CERHELP Database

CERHELP contains non-site-specific information such as SCAP and STARS targets,
accomplishments, Advice of Allowance (AOA), budget, and other information on non-
site-specific activity. The CERHELP database consists of the following separate files:

•       The Targets and Accomplishments data file is used for setting and tracking
       SCAP and STARS targets and measures.  Preliminary and final Regional
       SCAP/STARS commitments are entered  into  the system by Headquarters.
       Target and  non-site-specific accomplishment data are updated to reflect SCAP
       adjustments or approved amendments as they occur.  Regional reporting of non-
       site-specific accomplishments is also performed through this system. Data from
       this system are used in all "official" SCAP targets and accomplishment reports
       and are the baseline for Regional evaluation.

       The AOA file is used by Headquarters for SCAP budget development and
       control and for tracking and reporting the AOA process.

       Planning and tracking of non-site incident activities and financial data are
       accomplished through the Non-Site/Incident  Activity system. Regions are
       responsible for entering and maintaining SCAP non-site-specific information.
                       -3-

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CERHELP gives Regions access to non-site-specific budget information.  Regions also
will be able to track planning data and reconcile the site-specific planning in the
CERCLIS/WasteLAN database with the AOA and SCAP/STARS targets in
CERHELP.  It serves as an important management tool for Regions and
Headquarters.
                       -4-

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                  II.  PROCEDURES AND INTERACTIONS

A.   The          The negotiation cycle is the mechanism by which quarterly and annual targets are
     SCAP        established. The SCAP formal negotiating cycle occurs on a semi-annual basis.  The
     Process      negotiation cycle is discussed later in this chapter under Section III, Planning and
                  Reporting Requirements.

a   The IMC      The Regional Information Management Coordinator (IMC) typically is a senior position
                  that coordinates all Regional CERCLIS/WasteLAN users and serves as the liaison
                  between the Waste Management Division, ORC, and the  Environmental Services
                  Division. The IMC also serves as the liaison between Headquarters and the Regions in
                  the planning and financial areas.  The IMC holds ultimate responsibility for the data in
                  CERCLIS/WasteLAN and CERHELP. RPMs must coordinate fully with the IMC to
                  ensure that accurate and timely information  is entered into CERCLIS/WasteLAN and
                  that the most recent information is included in the SCAP  target-setting and budgeting
                  process.

C.   Targets/     SCAP and STARS targets are the key devices  by which program goals are translated
     Measures     into quantifiable program achievements.  They identify performance expectations for the
                  Regions.  Specific targets are negotiated with the Regions, and Regions commit
                  themselves to achieving these goals. SCAP and STARS targets therefore play a
                  central role in ensuring  that program goals are not seen only as a method for allocating
                  resources.

                  A SCAP  or STARS targeted measure (either quarterly or annual) is a pre-determined
                  numerical goal that is established prior to the fiscal year the designated activities will
                  take place. Targeted measures are designed to reflect major steps in the cleanup or
                  enforcement processes. Examples of SCAP and  STARS targeted activities are PRP
                  first RI/FS starts and section 107 remedial cost recovery referrals. Targeted  measures
                  quantify program achievement  goals on a Region-specific, and in some cases, site-
                  specific basis.  Regions are evaluated according to their completion of targeted activities.

                  A SCAP  or STARS reporting measure, on the other hand, is not used for program
                  accounting purposes.  It is  used to track an activity that is important in monitoring overall
                  program  progress. Reporting measures have no associated quantitative goals; only
                  actual accomplishments are tracked.  The SCAP process also uses projection measures.
                  Projection measures result in numerical goals being established prior to the fiscal year.
                  Projection measures represent each  Region's estimate of what the Region will accomplish
                  during a certain reporting period. Projection measures play a key role in setting annual
                  budgets and FTE allocations.

                  Exhibits XVII-1 and XVIl-2  set forth the SCAP and STARS targets and measures for
                  Fiscal Year 1991.
                                         -5-

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D.  Development  Headquarters program offices take the lead in developing STARS measures in
    of Reporting   conjunction with the development of the annual Agency Operating Guidance.
    Measures     Headquarters proposes reporting measures for OSWER before the beginning of the
                  operating year.  Regional responses to the proposed measures are returned to
                  Headquarters in February and March, as part of the annual Agency Operating Guidance
                  development process.  Measures normally are finalized in August prior to the beginning of
                  the fiscal year.

£  Target        The process for the development of a fiscal year's SCAP and STARS targets and
    Setting        measures begins during the second quarter of the previous fiscal year. Preliminary
                  targets and measures for the upcoming fiscal year are set by mid-March and are used to
                  derive the preliminary FTE allocations for the coming year.  All SCAP targets and
                  measures are negotiated, and numbers are established only after discussions have been
                  held between OERR, OWPE and the Regions. Final SCAP and STARS targets are set
                  in the fourth quarter SCAP, which is finalized in August.  Final targets and measures
                  also involve Headquarters/Regional negotiations. The SCAP Manual contains detailed
                  procedures for target setting.

                  SCAP and STARS Targets and Projection Measures are negotiated as SCAP targets.
                  Therefore, STARS targets are also SCAP targets.

                  Several CERCLIS/WasteLAN reports are used by Headquarters and the Regions in the
                  development and negotiation of Regional outputs. RPMs should check with their IMC to
                  obtain these reports.

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                                     Exhibit XVII-1(1)
                              FY91 SCAP/STARS Targets
 ACTIVITIES
 STARS
TARGET
 SCAP
TARGET
QUARTERLY
  TARGET
ANNUAL
TARGET
 Removal
 NPL Removal Start
 Non-NPL Removal Start
 NPL Site Completion thru Removal
 Site Assessment
 Screening Site Inspection (SSI) Completions
 (S/F-1)

 Remedial
 RI/FS
 - 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 RVFS Completion (ROD)

 RD Starts
 - First RD Start
 - Subsequent RD Starts

 RD Completion (S/C-5)
 - First RD Completions
 - Subsequent RD Completions

 RA Start
 - First RA Start
 - Subsequent RA Start
 -Fund
 -PRP

 Award of RA Contract (S/C-6)
 - First RA Contract Award
 - Subsequent RA Contract Award

 RA Completions (S/C-7)
 - First RA Completion
 - Subsequent RA Completion
 - Final RA Completion
* The STARS target combines first and subsequent, if appropriate, as a single target. Includes projects with the following
  leads: Federal (F), State (S), PRP actions under state order/decree (PS), In-house RDs (EP), Responsible Party under
  Federal order/decree (RP), Mixed funding (MR) and Federal Facility (FF).

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                                    Exhibit XVII-1 (2)

                            FY 91 SCAP/STARS  Targets
ACTIVITIES
 STARS
TARGET
 SCAP
TARGET
QUARTERLY
  TARGET
ANNUAL
TARGET
Remedial/Removal
NPL Sites Addressed Through Removal
 Action or RI/FS Start (S/C-2)

Enforcement
RD/RA Negotiation Starts
RD/RA Negotiation Completions (S/C-4)
Section 107 Referrals/Settlements (<$200,000)
Administrative Cost Recovery Settlements
Section 106 or 106/107 Referrals for RD/RA
 (S/E-4)
 - With Settlement
 - Without Settlement
Unilateral Orders issued for RD/RA (S/E-lc)
Section 107 Referral /Settlements (>$200,000)
 (S/E-2)
- Pre-RA
- RA and Other pre-RA Events

Federal Facility***
Signed lAGs at Federal Facilities (S/E-5)
RI/FS Start
- First RI/FS Start
- Subsequent RI/FS Start
RD Start
- First RD Start
- Subsequent RD Start
RA Start
- First RA Start
- Subsequent RA Start
  X**
   The STARS target combines first and subsequent, if appropriate, as a single target.
   Includes projects with the following leads: F, S, PS, EP, RP, MR, and FF.
   Includes projects with the following leads: Federal (F), State (S), PRP actions under state
   order/decree (PS), In-house (EP), Responsible Party under Federal order/decree (RP), Mixed
   funding (MR) and Federal Facility (FF).
   Federal Facility STARS targets are included under the Remedial section.

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      Exhibit XVII-2(1)
FY 91 SCAP/STARS Measures
ACTIVITIES
Stye Assessment
PA Completions
% SSI Candidates Requiring Further
Action (S/F-la)
FIT-PA/SI Completions
State-PA/SI Completions
LSI Starts
Remedial/Removal
Percent of NPL Sites Addressed
(S/C-2a)
NPL Sites Where All Remedial/
Removal Activity Completed
Remedial
RA On-Site Construction
Treatability Studies
Type of Media Addressed (S/C-7a)
Sites Nominated for the SITE
Program
NPL Deletion Initiated
Removal
Removal Investigations Completed
at NPL Sites
Removal Completions
Oi| Spill Activities
Spill Prevention Control and
Countermeasure (SPCC)
Inspections/Reviews
Clean Water Act (CWA)Funded Oil
Spills Cleaned Up by EPA
On-Scene Monitoring of Oil Spill
Responses
STARS
REPORTING



X





X





X















SCAP
PLAN/REPORT

X


X
X
X




X

X
X


X
X


X
X



X

X

X
QTRLY

X

X


X


X

X

X
X
X


X












ANNUAL g
I
x U
1
X 1
X m
x H
x I
1
I
X 1
1
x 1
1
x El
X 1
X 1
1
X [I
x I
I
1
X M
x 1
I
1
1
x 1
1
X H
1
•ranj

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      Exhibit XVII-2(2)
FY 91 SCAP/STARS Measures
ACTIVITIES
Enforcement
NPL PRP Search Start
Non-NPL PRP Search Start
NPL PRP Search Completions
Non-NPL PRP Search Completions
Issuance of General Notice Letters (GNL)
Issuance of Special Notice Letters (SNL)
AOs Issued (S/E-1)
- On Consent for removal RI/FS, RD or
Cost Recovery
- Unilateral for removals and RI/FS
RI/FS Negotiations Start
RI/FS Negotiations Complete
Section 106/107 Referrals with or w/o
Settlement (Cost Recovery >$200,000)
- Pre-RA
- RA and Other Pre-RA Events
Section 106, 106/107 Case Resolution
Section 107 Case Resolution
Cost Recovery Amounts Referred and
Settled (S/C-3)
- Value of Cases Referred to Department
of Justice (DOJ)
- Value of Settlements
104(e) Letters Issued
104(e) Referrals
Demand Letters Issued
Cost Recovery Close-out Memo
Administrative Record Compilation
Completed (Removal and Remedial)
State CD for RD/RA Issued
State Order for RI/FS Issued
De minimus Settlement Achieved
STARS
REPORTING









X
X











X
X









SCAP
PLAN/REPORT

X
X
X
X
X
X


X
X
X
X


X
X
X
X





X
X
X
X

X
X
X
X
QTRLY

X
X
X
X
X
X


X
X
X
X


X
X
X
X



X
X
X
X
X
X

X
X
X
X
ANNUAL 1
1
X §
X 1
x I
x 1
x 1
x I
1
1
x 1
X 1
x 1
x 1
1
1
X I
x 1
x 1
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I
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X
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X
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X
X
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-------
A.  SCAP
    Planning
B.   Quarterly
     Planning
     Process
C.  SCAP/
    STARS
    Adjustment/
    Amendments
III.  PLANNING AND REPORTING REQUIREMENTS

Regions are required to keep the SCAP data in CERCLIS/WasteLAN and CERHELP up-
to-date and accurate. Changes in planning information (i.e., schedules and funds) should
be entered into CERCLIS/WasteLAN or CERHELP within five days of the RPM
becoming aware of the  need for the change. Accomplishments are also to be reported
within five days. RPMs should contact the IMC through their Section Chief as soon as
possible regarding changes in site information that affect the SCAP planning process.

Quarterly,  Regions should generate SCAP reports for internal review of the planning
data in CERCLIS/WasteLAN and CERHELP.  These planning data should reflect any
adjustments or approved amendments made to the annual plan.  Regions should note that
changes made in CERCLIS/WasteLAN to site schedules and  other planning data will not
automatically result in changes to SCAP  and STARS targets. Although Regions have
the flexibility to alter plans, they are still accountable for meeting the targets negotiated
at the beginning of the  fiscal year.

On the fifth working day of each month, Headquarters extracts the proposed Regional
SCAP update.  The Regional reports are circulated to Headquarters program offices for
review, and serve as the basis of Headquarters/Regional negotiations. To ensure
consistency in the  negotiation phase, the  CERCLIS/WasteLAN and CERHELP
databases are frozen prior to generating the Regional reports. Using
CERCLIS/WasteLAN, Headquarters will transmit a copy of the reports to the Regions
at the same time they  are extracted at Headquarters.  As a result,  all parties
(Headquarters and the  Regions) will have identical data for use during the negotiation
process.  Exhibit XVI1-3 summarizes the major activities of the February and August
negotiating sessions.

CERCLIS/WasteLAN data quality problems that affect the SCAP update should be
resolved prior to negotiations. The problems should be resolved on a Region-specific basis
through conference telephone calls between Headquarters and the IMC.  The IMC will
communicate with  the appropriate RPM or Section Chief as necessary to resolve data
integrity problems.

After targets have been finalized and planned funding levels developed, the SCAP
process provides the flexibility to modify plans during the year. Modifications to planned
targets are termed either adjustments or amendments.  Amendments are SCAP
changes that:

       Decrease an annual SCAP target

       Increase the Region's annual operating budget

       Change the Advice of Allowance

       Change a  quarterly or annual STARS target.

The SCAP amendment process requires a formal request from the Regional Division
Director to Headquarters.  The STARS amendment process  necessitates a formal
                                         -7-

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                  request from the Regional Administrator. Any other SCAP change is an adjustment and
                  does not require Headquarters' approval. An example of a SCAP adjustment is
                  substituting one site for another that was originally planned for a specific SCAP or
                  STARS target.  Adjustments are incorporated in CERCLIS/WasteLAN by updating  the
                  database and the CERHELP Targets and Accomplishments data file on an ongoing
                  basis. Exhibit XVII-4 sets forth the SCAP amendment process.

                  All amendments should be recorded in the CERCLIS/WasteLAN site-specific database
                  after the Region issues the change request or memorandum to OSWER. Regions should
                  not initiate any obligation against change requests until confirmation is received from the
                  Office of the Comptroller. Regions cannot revise the site back-up in the.Targets and
                  Accomplishments data file until the amendment is approved by Headquarters.

D.  STARS       Regions may request an adjustment to a STARS target if the change is necessitated by
    Target       extenuating circumstances. Changes in STARS targets may be necessary and
    Adjustments   approved under the following conditions:

                         Major, unforeseen contingencies arise that alter established priorities (i.e.,
                         Congressional action)

                         Major contingencies arise to alter established Regional commitments (i.e., State
                         legislative action)

                         Measure or definition in system is creating an unanticipated negative impact.

                  STARS target adjustments must be submitted in writing to the Assistant Administrator,
                  OSWER (AA, OSWER).  The AA, OSWER evaluates the request and makes a
                  recommendation to OMSE whether to concur with the request.

£  Pteming       The SCAP Manual  (OSWER Directive 9-200.3-01 D) contains detailed information on
    Requirements  planning requirements and procedures for the various Superfund response and
    and          enforcement program activities.  RPMs should refer to the manual for specific
    Procedures    requirements and procedures of the SCAP planning process. The SCAP manual sets
                  forth specific planning requirements and procedures for:

                         Preliminary Assessments/Screening  Site Inspections

                         Listing Site Inspections

                         First and Subsequent Starts and Completions

                         To Be Determined (TBD) Sites

                  •       Setting Activity Time Frames

                         Project Takeovers

                         Remedial Financial Management

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                          Exhibit XVII-3
                      SCAP Planning Year
          SECOND QUARTER
           (February/March)

Update planning information in CERCLIS/WasteLan
for the third and fourth quarter current year

Review slippage in current year targets for
development of action strategies

Negotiate preliminary SCAP/STARS targets and
measures for planned year with HQ and Regions

Determine preliminary planned year FTE allocations
based on the preliminary targets and measures

Identify major projects requiring funding in the
outyear

Provide complete site schedules including planned
obligations to allow HQ to project the outyear budget.
                                   FOURTH QUARTER

                                        (August)
                              Finalize resources for planned year

                              Establish final SCAP/STARS commitments
                              for planned year

                              Set operating year annual Regional budget

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                               Exhibit XVII-4
                       SCAP Amendment Process
                                           Increase
                                         Annual Budget
                                  J
                                  J
                r Increase Total
                AOA or Increase
                RA Funding After
                s.  AOA Issued
Memorandum from

 AdmfnSorto
   A A 
-------
                         Case Budget Planning

                         Removals

                         Determining Impact on Funding Status of RP Takeover

                         State Enforcement

                         Technical Assistance Grants.

                  RPMs play an integral role in communicating site status information to the IMC.  This
                  information must be timely to ensure accurate planning for future activities. RPMs
                  should make themselves thoroughly familiar with the planning requirements and
                  procedures set forth in the SCAP manual.

F.   Accomplish-   CERCLIS/WasteLAN is the Regional reporting vehicle for SCAP and STARS. If an
     ment         activity or event is not properly entered into CERCLIS/WasteLAN, the event will not
     Reporting     have occurred for budget or accountability purposes.  It is therefore crucial that
                  information be entered into CERCLIS/WasteLAN promptly and accurately.
                  Accomplishments data are recorded on various Regional data entry forms and are
                  entered into CERCLIS/WasteLAN and CERHELP by the IMC, RPM, or designee. Data
                  on accomplishments should be entered into CERCLIS/WasteLAN within five days of the
                  event. Therefore, it is important that RPMs promptly relay relevant site information to
                  the IMC through their Section Chief.

G.   STARS      Regions enter accomplishments data into CERCLIS/WasteLAN.  Quarterly,
                  Headquarters extracts accomplishments data from CERCLIS/WasteLAN and manually
                  enters the information into the PR1ME-based STARS system.  The data are then
                  reviewed by the Regions for discrepancies.  The Regions then correct the data in
                  CERCLIS/WasteLAN (if necessary) and enter comments regarding discrepancies.
                  Headquarters and the Regions then reconcile the  discrepancies and Headquarters enters
                  final information into the STARS system.

H   SCAP        Regions should generate SCAP reports quarterly for internal review. Regions perform
                  data quality checks and make adjustments to the CERCLIS/WasteLAN or CERHELP
                  database if the databases do not reflect actual accomplishments. The RPM must verify
                  that CERCLIS/WasteLAN and  CERHELP data are consistent with actual
                  accomplishments.

                  On the fifth working day of each month, Headquarters extracts SCAP reports from
                  CERCLIS/WasteLAN and CERHELP. These reports are reviewed by Headquarters to
                  evaluate Regional progress toward SCAP targets, and accomplishments data are
                  submitted to OMSE for reporting STARS accomplishments.

/     Financial      The SCAP process is the planning mechanism used by the Superfund  program to identify
     Planning and  pre-remedial, remedial, removal, and enforcement funding needs for the current and
     Management   planned fiscal years. The planned obligations included in the fourth quarter SCAP update
                  in CERCLIS/WasteLAN (July) form the basis of the final Regional budgets for the next

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                  fiscal year.  The annual Regional operating plan and the associated budget are a result
                  of the Headquarters and Regional negotiations on the proposed program budgets. Regions
                  are required to operate within their final negotiated annual operating budget.

                  Prior to the fiscal year, each Region is allocated an annual budget for pre-remedial,
                  remedial, removal, and enforcement activities.  The criteria used to develop the major
                  portion of the Regional budget are discussed in  the SCAP manual.

d    Case         Case budget funds are apportioned to the Regions based on the annual targets and
     Budget       measures and the Region's planning information reflected in the CERCLIS/WasteLAN
                  and CERHELP site and non-site databases.  Each activity has a pricing factor that is
                  used during the allocation process. These factors are itemized in Exhibit XVII-5.
                  Activities with a duration of less than one year  are fully funded (e.g., negotiations,
                  removal oversight, long-term response, Section 107 administrative).  Activities with a
                  duration exceeding one year are funded quarterly (e.g., RI/FS, oversight,  Section 106 and
                  107  litigation).  Other priority activities (Administrative Record and State management
                  assistance) are added to this calculation. Allocations are reviewed and adjusted
                  quarterly based on changing targets and the number of quarters remaining in the current
                  fiscal year.  The case budget is discussed in detail in Chapter XVI, Case
                  Budget/Contracts.

                  The Advice of Allowance (AOA) represents the funds allocated to each Region by the
                  Office of the Comptroller for each quarter of the fiscal year. The AOA comprises five
                  accounts:

                         Remedial Action (site-specific)

                         Remedial Design (non-site-specific)

                  •       Removal (non-site-specific)

                         Other Remedial (regular or "0" Allowance)

                  •       Enforcement (case budget).

                  The Enforcement, or case budget, account is  managed by OWPE. The other
                  accounts are managed by OERR.

     A OA         Normally, the Office of the Comptroller issues  the quarterly AOA on the first working
     Process      day of each quarter. The AOA is based on the Phase III Operating Plan that identifies
                  projected obligations for each quarter of the fiscal year.  The Phase III Operating Plan
                  for FY 91 is based on the final SCAP plans developed in the fourth quarter of FY 90.
                  Funds available for obligations, however, are limited to projected needs for the upcoming
                  quarter. OWPE has a specific process for the Enforcement AOA, which is discussed in
                  Chapter XVI, Case Budget/Contracts.
K.  Advice of
    Allowance
                                          -10-

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AOA         Regions are required to manage the funds issued in the AOA.  Headquarters approval is
Change      not required to shift funds between projects within the other remedial, RD, removal or
Request      enforcement portions of the AOA.  Any shifts of funds between allowances or any
Procedures   addition or deletion of funds from any of the allowances requires Headquarters approval
             through the SCAP amendment and change request procedures. These procedures are
             discussed in detail in the SCAP Manual.
                                    -11-

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A.
a
                  IV.  POTENTIAL PROBLEMS/RESOLUTIONS

    Date         RPMs play a central role in ensuring CERCLIS/WasteLAN data accuracy. Inaccurate
    Quality       or missing data may lead to insufficient funding and incorrect accomplishments reporting.
    and Planning   RPMs must communicate all relevant site information through their Section Chief to the
    in CERCLIS/  IMC in a timely manner to  ensure CERCLIS/WasteLAN data integrity.  RPMs also
    WasteLAN    should review relevant CERCLIS/WasteLAN data regularly for consistency with actual
                  activity.

    Headquart-    The SCAP negotiation process involves extensive and detailed communication between
    ers/Regtonal   Headquarters and the Regions.  During this process, it is important that RPMs coordinate
    Negotiations   closely with the IMC and other appropriate personnel so that the most current and
                  accurate information is considered during the negotiation.
C.
    hterpreta-    It is essential that Headquarters and Regional personnel clearly understand the SCAP
    tionof        and STARS targets and measures definitions.  Incorrect interpretations of target and
    Definitions    measure definitions may prevent actual accomplishments from being reported or
                  recognized.  RPMs must communicate with their Section Chief or the IMC regarding the
                  nature of reported activity to ensure that the appropriate targets and measures are
                  updated. If RPMs or other staff have questions or are confused by the definitions, it is
                  important to ask the Regional IMC or Headquarters for clarification.

D.  Impact of     Site schedule changes must be analyzed for their impact on SCAP, and the changes
    Schedule      entered into the system as soon as possible. SCAP will continue to be a viable planning
    Changes on   tool only if accurate planning information is entered into  the system. RPMs must inform
    SCAP        the IMC promptly  of site schedule changes to ensure the effectiveness of the SCAP
                  planning functions.
                                         -12-

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Manual


Contacts
Training
V. REFERENCES

OSWER Directive 9200.3-01 B, Superfund Comprehensive Accomplishments Plan (SCAP)
Manual (updated annually).

Office of Waste Programs Enforcement, CERCLA Enforcement Division, Contracts and
Planning Branch, Regional Planning Section. FTS 398-8606.

Office of Waste Programs Enforcement, Program Management and Support Office,
Budget Formulation Section, Information Management Section.  FTS 475-8250.

Office of Emergency and Remedial Response, Office of Program Management,
Resources Management, Budget and Forecasting Section. FTS 475-9367.

"CERCLIS/WasteLAN Enforcement Overview," a 1-day course and "Customized
CERCLIS/WasteLAN Reporting," a 2-day course are periodically available.  For
additional information, call FTS 398-8606.
                      -13-

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                                         INDEX
 Administrative Order (AO):  II-9, 11, 14; IV-17, 27; V-2, Ex. V-1, 10, 11, 13, Ex. V-4, 14, 15, 17, 18, 19, 21,
 22, 24, 25; Ex. VI-2, Ex. VI-3, 20; VII-3, 9, 10; IX-2; Ex. XV-1(2), Ex. XV-3(2).
 Administrative Order on Consent (AOC)/Consent Order: 1-2, 4; Ex. 11-1 , Ex. II-4, 11-10, 11,12, 13; Ex. V-1 ,
 Administrative Record  (For Selection of Remedy): Ex. 11-1 , Ex. II-2, Ex. II-4, 4, 12; VI-21 , 27, 29, 30, 31 ,
 32, App. A-1 ; VII-2, 7, 8, 9, Ex. VII-2, 10, 14, 17, 20; Xlll-9; XV-1, 2, 4-9, 12.
                       (For Deletion - Deletion Docket): XI-5, 6-8, 9, Ex. XI-1 ; XV-1 .
 Administrative Subpoena: IV-5,19-20.
 Advice of Allowance:  XVI-3-4, 9; XVII-3, 9-10, Ex. VIM.
 ARARs: I-3; IV-1, 13;  V-9, 16; Ex.  VI-1, 3, 5, Ex. VI-3, 15, 16, 24, 25, 29, 31, App. A-1, App. A-4; VI-1, 3,
 7, 14;Ex.XV-3.
 ATSDR: VI-4, 7, 12, 23, 27, 28, 29, App. A-1 , App. A-4, App. A-5; XI-8; Ex. XV-3(2).
 Case Budget: V-18,  19; VI-19; XII-26, 27; XIII-12; Ex. XIV-1 , 12, 13, Ex. XIV-2; Ch. XVI; XVII-9.
 CERCLA Settlement Policy: VIII-1  3.
 CERCLIS:  11-17, 18,  19; 111-10; Ex. IV-4, 25; V-1 9, Ex. V-5; VI-6, 18; VIM 5, Ex. VII-3, 21 ; VIII-1 6, 26, 27; IX-5,
 6; X-3; XI-1 , 1 0; XII-1 0, 26-27; XIV-1 1 -1 2, Ex. XIV-1 ; XVI-1 , 2, Ex. XVI-1 , 8; XVII-1 , 2-3, 6-7, Ex. XVII-4, 8, 1 1 .
 Civil Investigator(CI):  II-6, 20;  IV-2, 7-8, 10, 18, 19, 24.
 Close-Out Report: XI-2-5, Ex. XI-1 , Ex. XI-2, 13; XII-1 0.
 Community Relations: 11-15, 16; VI-5, 6, Ex. VI-2,  18, App. A-1 through 5; VII-8-9, 17, 20; Ch. XIII; XV-1 .
 Community Relations Coordinator: VI-6, 9; XI-8; XV-4; Ch. XIII.
 Community Relations  Plan: Ex. II-2, 16; VI-9, 23, App. A-1 ; Vll-5, 10, 16; Ex. XV-2,  Ex. XV-3.
 Consent Decree: I-2, 4; V-1 6, 19, 21 , 22; VIII-1 , 2, 8, 29; Ex. IX-1 , Ex. IX-3, 2, 9-10; X-2; XIV-2; Ex. XV-1 , Ex.
 XV-3.
        Reopeners: VIII-9,21.
        Covenants not to Sue: VIII-8.
Contracts (TES, ARCS, ERCS, etc.): V-18; VI-7, 19; Ex. VII-3; IX-8; XII-17; XIII-12;  Ex. XV-1 , 12; Ch. XVI.
Contractors:  II-6, 15, 17; IV-2, 8-9,  10, 18, 26; V-8, 18; VI-24, 29; VIM 6; IX-1 , Ex. IX-2, Ex. IX-3; Ex. XV-1 , 4.
Cooperative Agreement: VII-2; XIV-1 , 2, 4, 7, 12, Ex. XIV-2; Ex XV-1 , Ex. XV-3; XVI-8.

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Cost Recovery: 1-1; 11-15; IV-2; VIII-10; Ch. XII.
        Case Referral: XII-3.
        Documertation: XII-12-19;XV-9-10.
Dj Minimis Settlements: 1-2; V-2; VIII-1,19-21,29; XII-21,22; XIII-8.
Department of Interior (DOI): V-8; VI-4,7.
Department of Justice (DOJ): I-6,7; III-3; IV-17; V-2,3,15,17,19; VII-16; VIII-2,4,24,25; XI-8; XII-2,3,24;
XIII-5,7,8.
Emergency Response Notification System (ERNS): 11-18,19, Ex. II-7.
Endangerment Assessment: VI-12-13,24-25.
        Risk Assessment: VI-2, Ex. VI-1,6, Ex. VI-3,12-13,24-25.
General Notice Letter (GNL): IV-2,21-23; V-6,24.
Good Faith Offer (GFO):  V-1, Ex. V-1,13,14-15,24; VIII-11.
Hazard Ranking System (MRS): not in III, IV, VI
Information Request Letter (104(e)Letters):  IV-5,7,8,10,11,12-16,17,19,20,23; V-1,6; XII-7,19.
Inter-Agency Agreement (IAG):  IX-8; Ex. XV-1; XVI-8.
Liability: I-2; Ex. II-4,20; IV-2-4,6; XII-5,7.
Land Disposal Restrictions (Land Ban): Ch. VII Appendix B
Long Term Response Action (LTRA): X-1; XI-1,3-4, Ex. XI-1.
Mixed Funding: I-2; V-2; VIII-1,15-16; XII-23.
        Cash Out: VIII-15,18-19.
        Mixed  Work: VIII-15,18.
        Preauthorization: VIII-15,16-18.
Natural Resource Trustees: 1-7; V-8,19; VI-4,7,9,10; VIII-2,9.
NBAR:  I-2; V-2; VIII-13,22-23.
NCR:  ll-2;VII-2;XI-5;XIII-5,6.

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Negotiation Moratorium: 11-1 1 ; V-1 3, 1 5; VII-1 0; VIII-1 2.
NPL: I V-1, 24, 25; V-6; Ex. VI-1, 18; Ex. VII-1; XI-1, 5, 11; XIV-5, 8, 10.
NPL Deletion: Ch.XI;XIV-14.
Office of Emergency and Remedial Response (OERR) Roles and Responsibilities: 1-6; V-8, 18; V!ll-17;XI-3;
Office of Enforcement (OE) Roles and Responsibilities: I-6; III-3; V-2, 3; VIII-4, 24.
Office of General Counsel (OGC)  Roles and Responsibilities:  VIII-23.
Office of Regional Counsel (ORC)  Roles and Responsibilities: I-6; IV-2, 4, 7-8, 18, 19; V-2, Ex. V-2, 7, Ex.
V-4; VI-6, 20; VII-1 6; VIII-3, 10; IX-2, 8; X-4, 8; XII-24; XIII-3; XV-8, 13.
Office of Waste Programs Enforcement (OWPE)  Roles and Responsibilities:  I-6; III-3, 4; V-2, 7, 18, 19; VI-
18;VIII-3,17,24;XI-3,13;XVII-1.
On-Scene Coordinator (OSC)  Roles and Responsibilities: II-3,  6, 7, 9, 10, 14, 15, 16, 17, 19; XI-4; XII-1; XIII-
3; XV-8.
Operation and Maintenance (O&M): Ch. X; XI-2.
        O&M Plan:  X-2.
Oversight:  1-1 , 5; Ex. 11-1 ; XIV-14; (see RI/FS Oversight and RD/RA Oversight).
Oversight Assistant:  VI-6-7, 11-12, 23.
Proposed Plan: VI-5, 6, 16; VII-1, 4, 5, 6-8, 9, 12-13; VIII-2, 3, 10, 11 ; XIII-6.
PRP Search: I-4; Ex. 11-1 , II-2, 3, 6, 7, Ex. II-3, Ex. II-4, 20; Ch. IV; V-1 , Ex. V-1 ; VIII-6, 30; XII-7-8.
        PRP Search Plan:  II-6, 7, Ex. II-3, 17; Ex. IV-1; Ex. V-1.
        Baseline Report:  Ex. IV-1, Ex. IV-2, 18.
        Interim Final Report: Ex. IV-1 , Ex. IV-2, 20.
QAPP/FSP:  XV-2, Ex.  XV-1,3.
RD/RA Negotiations:  I-4, V-21 ; VI-32, VII-1 0; Ch. VIII; XII-2-3; XIV-4.
        RD/RA Negotiation Plan:  II-6, 7; VII-1 , 6, App.
RD/RA Oversight: I-5; IX-1 , Ex. IX-2, Ex. IX-3, 8; XIV-2-3.

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Records Management: Ch. XV.
Record of Decision (ROD): V-11,21; VI-1, Ex. VI-1,4,5,6,18; Ex. VIM, 4,5,8,9,10-14,15, Ex. VII-3,
16,17; Ex. IX-1-3; Ex. XI-4; Ex. XIII-1,6,7; XIV-8; Ex. XV-3.
Regional Project Officer:  (RPO) XVI-4,5,11.
Removals: Ch. II.
Risk Assessment: V-16,21-22; VI-1,5,6, Ex. VI-3,12-13,24,29, App. A-2; VII-2.
        Endangerment Assessment: VI-29; VII-3.
RI/FS Negotiations:  I-4; Ch. V; VI-1,4,8; XIV-4.
        RI/FS Negotiation Plan: III-5; Ex. V-1,6.
RI/FS Oversight: I-5; Ex. V-3; VI-3, Ex. VI-2; VI-4,5,6, Ex. VI-2, Ex. VI-3,11-12, 27,29, App. A-1  through
5;XIV-2-3.
Selection of Remedy: VI-14,16,17;Ch. VII; VIII-7.
Settlement Decision Committee (SDC): VIII-3,23.
Site Completion: Ch.XI.
Site Management Plan: 111-1,3,9.
Site Planning: Ch.lll.
Special Notice Letter (SNL): V-1,13,14,19,24; Ex. VI-2; VII-10; VIII-2,9,10; XII-11; Ex. XV-1.
Statement of Work (SOW): V-2, Ex. V-1,9-10, Ex. V-3,14,16,18,24; VI-2,3,8,10; VII-3,8,10; X-2;
XVI-4,10.
State Enforcement: I-7; VII-2,8,14,23,27,28; Ex. IX-3, X-1; Ch. XIV; XV-5.
Strategic Planning & Management System (SPMS): 11-17,18, Ex. II-5,10; Ex. IV-4,24; V-4,19, Ex. V-5;
VI-18; VII-15, Ex. VII-3; VIII-27,28; IX-5, Ex. IX-4,9; XI-10; Ex. XIV-1; Ch. XVII.
Steering Committee: IV-2,22; V-1,2,7,8,15; VIII-2,7,12,29,30.
Superfund Comprehensive Accomplishments Plan (SCAP): I-5; 11-17, Ex. II-5; 111-10; Ex. IV-4,  IV-24,27; V-
4,8,17,18,19, Ex. V-5,24; VI-18,23; VII-15, Ex. VII-3; VIII-6,27; IX-5, Ex. IX-4,9; XI-10; XIII-11; XIV-10-11,
Ex. XIV-1,14; XVI-1,3,4,8,9:011. XVII.
Superfund Enforcement Tracking System (SETS):  V-19.
Superfund Memorandum of Agreement (SMOA): VII-2; XIV-1,2,4,5,-7,14, Ex. XV-1, Ex. XV-3.

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Technical Assistance Grant: Ex. XIII-1.
Technical Assistance Committee: VI-8.
Technical Assistance Team (TAT): II-6,7, Ex. II-3,15,17; XV-3.
Technical Enforcement Support (TES): II-6,7,15,17,18; VIII-26.
Unilateral Administrative Order (UAO)/Unilateral Order:  Ex. 11-1, Ex. II-4,8,10,11,13,14; IV-2; V-17;
VIII-^XIII-S.
Work Assignment Manager: XVI-4-7,10-11.
                                             * U.S. GOVERNMENT  PRINTING OFFICE: 1991  290-242

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