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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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.
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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
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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;
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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
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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.
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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.
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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
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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
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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
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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
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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
-------
a w
I
XXX
£ ill
'- 33S
!i
i i
M ^
lli
M
i
N
-I vl
S
R
R **
S B
H i i i "
t
513
i i
i i
i i
K
u
§!
8
U O
X Q
u £
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i i
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s
ki
I
-------
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
-------
IV. POTENTIAL PROBLEMS/RESOLUTIONS
A. Civil Many Regions have identified civil investigators as a timely mechanism for gathering
Investigator PRP liability and financial information for removal cases, and noted that civil
Support investigators are effective in a quality assurance capacity to oversee research being
conducted by enforcement project managers.
Region III has recognized the need for a civil investigator to work exclusively on removal
cases, and has a full time civil investigator position to work in the field in the early
stages of a case. Regions with removal programs large enough to sustain one civil
investigator full time should investigate the possibility of creating such a position. This
position allows the investigator to become familiar with the types of investigative
situations that removals present, and prevents conflicts in which priority is required by
remedial cases. Additionally, assigning a civil investigator exclusively to removal cases
ensures the investigator's availability to conduct PRP research when required
immediately for a time-critical removal.
B. Determining
PRP
Financial
Viability
C. Use of
Information
Request
Letters
Effective PRP searches should yield financial information on PRPs so that the
determination can be made whether to pursue the CERCLA section 106 administrative
order option. To ensure PRP searches yield the necessary financial information, Region
IX includes a financial disclosure form with information request letters issued under
section 104 (e) of CERCLA. Standard PRP search procedures in many Regions include
a Dun and Bradstreet system financial report, and review of records for bankruptcy,
property ownership, and financial status information.
The 104(e) information request letter provides a means of gathering PRP liability
and financial evidence, including information on site history, the identity of additional
PRPs, and financial information. Financial information is necessary in determining
whether to issue an administrative order. Therefore, enforcement personnel should
be involved in removal cases at the outset to facilitate gathering as much
information as possible before issuance of an administrative order. Section 104 (e)
letters also may be used in conjunction with demand letters, issued approximately 12
months after removal completion during the cost recovery stage, to gather additional
evidence and identify additional PRPs.
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V. REFERENCES
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
-------
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
-------
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
-------
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
-------
Appendix
-------
7) Conclude negotiations
a) Prepare AO for signature
b) Initiate Fund-financed activity, if appropriate
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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
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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
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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
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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.
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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.
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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
-------
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.
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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
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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
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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.
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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.
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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.
-------
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.
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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.
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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
-------
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
-------
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
-10-
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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
-9-
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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
-8-
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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.
-7-
-------
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
-------
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
-------
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).
-------
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.
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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
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QTRLY
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ANNUAL I
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X
-------
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).
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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.
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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.
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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.
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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.
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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,
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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:
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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.
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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.
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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,
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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;
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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
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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).
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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
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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).
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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.
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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
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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
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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
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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.
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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:
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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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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
-------
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 "
%^-jjrt •. •^yvXv. •. \ v •'•••\v'
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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.
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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
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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.
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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
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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).
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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.
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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
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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).
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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
-------
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]
-------
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
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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.
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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.
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K. Notice Pursuant to section 117 of CERCLA, the lead agency will publish notice of the final
remedial action plan. The notice will be published in a major local newspaper of general
circulation. CERCLA also requires that the agency make the ROD available to the
public before any remedial action begins. The final version of the ROD, including the
Responsiveness Summary, should be included in the Administrative Record.
L Post-ROD As a result of enforcement agreements or other developments during RD/RA, EPA may
Changes receive new information that leads it to alter the remedy specified in the ROD. When this
occurs, EPA must evaluate the contemplated change to determine the procedures it must
follow. Three categories of post-ROD changes exist:
Non-significant differences: minor changes that do not significantly affect the
overall scope, performance, or cost of the alternative, such as minor technical or
engineering changes.
• Significant differences to a component of the remedy: changes that do
significantly affect the overall scope, performance, or cost of the alternative,
but do not alter the overall waste management approach, such as changes to
ARARs, timing, cost, or implementability.
Fundamental changes to the overall remedy: changes that alter the overall
waste management approach, such as substitution of a containment remedy for
a treatment remedy.
Each category of change requires documentation or an opportunity for public comment.
For further information on post-ROD changes, consult OSWER Draft Directive 9355.3-02,
"Interim Final Guidance on Preparing Superfund Decision Documents" (July 1989).
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III. PLANNING AND REPORTING REQUIREMENTS
A. Reporting This section of the chapter discusses RPM planning and reporting requirements for the
Requirements selection of remedy phase of the Superfund program.
Submission In addition to referring documents to EPA program offices for review, the lead agency
of must submit them to Headquarters for purposes of receiving credit for their
Documents accomplishments. The lead agency must also send to Headquarters a hard copy of the
ROD and a copy of the ROD text on disk in order to receive credit for an initial,
subsequent, or final RI/FS completion.
Information The lead agency also has responsibility for enabling EPA to track accomplishments at
Databases the site, such as submission of the draft Feasibility Study to the public. The lead agency
meets this responsibility by providing information on selection of remedy activities to
EPA databases. The RPM is responsible for ensuring that accurate information on ROD
start and completion dates goes into CERCLIS/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.
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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.
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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].
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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.
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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.
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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.
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Appendix A
-------
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)
-------
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
-------
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
-------
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
-------
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.
-------
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 -
-------
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)
-------
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.
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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.
-------
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,,
-------
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
-------
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
-------
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).
-------
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/
-------
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.
-------
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.
-------
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-
-------
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-
-------
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-
-------
c\i
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LJJ
CO
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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
-------
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.
-7-
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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-
-------
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
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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
-------
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
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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.
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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.
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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.
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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.
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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
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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:
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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.
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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.
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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.
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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).
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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.
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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
-------
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?
-------
- 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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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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:
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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.
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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
-------
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
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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).
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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:
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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.
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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
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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.
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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
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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
-------
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
-------
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
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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).
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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:
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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.
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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
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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"].
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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.
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Appendix
-------
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.
-------
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
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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.
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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
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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
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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.
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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.
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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
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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.
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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,
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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).
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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.
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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.
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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).
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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.
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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
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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)
-------
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:
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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.
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Exhibit XIV-2
CA Funding Through Case Budget
Case
Budget
$
/
TES5-12
CONTRACTS
©
a
NON-TES
VEHICLES
©
/
CAs
-------
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.
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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.
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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
-------
REFERENCES 14
Policies 14
Guidance 14
Manuals 14
Contacts. 14
Training 15
-------
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.
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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.
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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
-------
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
-------
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.
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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
•
•
•
•
•
•
•
•
•
•
•
•
•
»
•
•
*
•
•
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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
-------
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
-------
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
-------
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.
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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
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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
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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.
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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).
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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.
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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.
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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
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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
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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
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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.
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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.
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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.
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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).
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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
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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.
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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.
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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.
-------
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).
-------
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.
-------
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
-------
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
x 1
I
1
I
x 1
X
X
X
X
X
X
X
X
x 1
-------
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
-------
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
-------
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
-------
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.
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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.
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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.
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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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