100R91101
5960
A Management Review of
the Superfund Program
William K. Reilly, Administrator
U.S. Enviroi .ne^ital Protection Agency
Washington, D.C.
U.S. Environmental Protection
Region 5, Library (PL-12J)
77 West Jacfcson Boulevard, 12th Float
Chicago, II 60604-3590
Printed on Recycled Paper
-------
ADMINISTRATOR'S PREFACE
In the course of Senate hearings held to confirm my appointment as Administrator
of EPA, I was asked a lot of questions about Superfund. Members of the Committee
wanted to know about the program's management and progress to date and, in particular,
what I intended to do about improving Superfund's performance during my tenure as
Administrator. Since I did not then have sufficient first-hand knowledge of the situation,
I promised the Committee that I would immediately undertake as thorough a review of the
program as could be completed in about ninety days. The result is the report in your
hands.
For me the most important finding of the study is the need to set fair and realistic
expectations for a program of the relative novelty and scope of Superfund. At the time
of the program's initial enactment in 1980, virtually no one had any practical experience
with the difficulty and duration associated with cleaning hazardous waste sites to health-
based levels. The Agency and the country have spent the first nine years learning what
a big job it really is, and building a base of experience from which to plan more efficient
and effective methods of program management and site cleanup.
EPA's staff wrote this report, with a lot of help from critics and supporters alike
outside the Agency. I have accepted it and will use it to guide the direction of the
Superfund program in the months and years ahead. I think it provides a fair,
dispassionate, and refreshingly candid assessment of the past, and a realistic plan for
improving program performance in the future. I do not expect that everyone will agree
with all it has to say. However, I do anticipate that this report will create a new
atmosphere for a thoughtful and productive reassessment of Superfund, something that has
been hard to achieve in the more emotional context of the recent past. I look forward to
the challenge of keeping the promise of continuous improvement that I have made by
accepting the recommendations of the report.
William K. Reilly
Administrator
U.S. Environmental Protection Agency
-------
TABLE OF CONTENTS
PAGE
ADMINISTRATOR'S PREFACE
REPORT OVERVIEW i
INTRODUCTION 1
CHAPTERS
I. A CLEAR STRATEGY FOR SUPERFUND 1-1
II. STRENGTHENING ENFORCEMENT AND MAXIMIZING 2-1
RESPONSIBLE PARTY WORK AT SUPERFUND SITES
III. ACCELERATING AND IMPROVING REMEDIAL ACTION 3-1
IV. BRINGING INNOVATIVE TECHNOLOGIES TO BEAR ON 4-1
POLLUTION AT SUPERFUND SITES TO STRENGTHEN
REMEDY SELECTION
V. AN AGGRESSIVE PROGRAM OF COMMUNITY 5-1
INVOLVEMENT
VI. MANAGEMENT AND ADMINISTRATION: FREEING UP 6-1
THE SKILLS AND TOOLS TO DO THE JOB
VII. ACCOUNTING FOR ACHIEVEMENT: COMMUNICATING 7-1
PROGRESS TO THE PUBLIC
NEXT STEPS 8-1
APPENDIX
-------
REPORT OVERVIEW
-------
REPORT OVERVIEW
In response to a series of questions about the achievements to date and future
management of the Superfund program, newly confirmed EPA Administrator William K.
Reilly commissioned this report. Completed in roughly ninety days, it comprises facts,
observations, and interpretations drawn from Agency staff and from a variety of critics and
supporters external to Superfund. This candid assessment of the program after nine years
of experience suggests a practical strategy for realizing the greatest environmental benefit
possible, given the long-term, incremental nature of the Superfund challenge.
Superfund has drawn a lot of negative attention in the years since its passage in
1980. While much of the criticism is appropriately grounded in a perception of slow
progress and questionable management early in the program, just as much seems based
on unrealistic expectations of the program. Speedily launched in response to such dramatic
episodes as the Love Canal, Superfund is only now beginning to benefit from the lessons
of numerous field trials that are essential to public engineering programs of any magnitude.
As slow-moving as it may have been initially, Superfund has now accelerated to meet the
very aggressive targets set in the reauthorization statute of 1986.
Even an efficient, smoothly managed Superfund program would continue to
disappoint, however, if the main measure applied were the achievement of final cleanup
at all sites currently listed on the National Priorities List (NPL). Experience is showing
that final cleanup is a distant goal in most cases, and that EPA would do the public a
disservice by quickly delisting sites to satisfy demand for a "quick fix." Rather, success must
be measured in Superfund's ability to quickly remove the source of immediate risk to
public health and safety, and to gradually minimize long-term risk from any pollutants
remaining on site.
In this report EPA announces a new long-term strategy for Superfund. Although
little in the strategy is literally "new", since most of the principles have begun to drive
the program in recent years, this is the first time EPA has presented them as a
comprehensive statement of program philosophy. The strategy contains the following
elements:
Control Acute Threats Immediately. Superfund will set as its first priority the
reduction of near-term risk to public health.
Worst Sites. Worst Problems First on the Road to Cleanup. Superfund will
schedule incremental steps to clean up sites over time, expending scarce resources first on
problems posing the most serious risks to public health.
-------
Carefully Monitor and Maintain Sites Over the Long Term. EPA will not walk
away from its obligation to protect human health and the environment at each and every
NPL site ~ no site, where hazardous substances remain, will be deleted from the NPL
following a final cleanup that meets health and environmental goals until at least one five
year review is conducted.
Emphasize Enforcement to Induce Private-Party Cleanup. EPA will use the fact
and threat of enforcement, encompassing a broad range of administrative and legal tools,
to increase the proportion of cleanup undertaken by private parties.
Seek New Technologies for More Effective Cleanup. The Agency will expand its
research, and provide more comprehensive field support for the development and use of
treatment technologies to promote permanent solutions.
Improve Efficiency of Program Operations. EPA will apply lessons learned to
abbreviate time-consuming program procedures where possible.
Encourage Full Participation by Communities. EPA will involve citizens more fully
in cleanup decisions, including sites in which Potentially Responsible Parties have taken the
lead.
The major substantive sections of the report fully support the elements of this
strategy. Most telling is the need to set public expectations of the program to recognize
that success must be pursued over many sites for many years. Chapter 1 sets forth EPA's
Superfund strategy. Removal and remediation of immediate threats is the first step,
followed by a complex and invariably lengthy series of progressive actions to contain and/or
gradually eliminate remaining on-site pollution. The ultimate step of delisting may follow
by years the completion of final cleanup work on a site. Chapters II through VII present
findings and recommendations that prescribe the means to Superfund's programmatic ends.
Chapter II presents the case for more muscular enforcement to promote private-
party cleanups. The Superfund statute and the 1986 amendments (known as SARA)
afford to Superfund a broad array of authorities to compel cleanup by private parties and
to facilitate cost recovery for direct action under the Fund. EPA will use all tools available
within the program to advance cleanup, but will exhibit a clear bias toward private party
cleanup that meets health and environmental goals under enforcement action. The Agency
will also target realistic amounts for cost recovery and take appropriate steps, including
necessary rulemaking, to recoup outlays from the central Fund.
Chapter III outlines a number of procedures EPA can take to improve efficiency
and consistency of performance in the remedial program. Prominent among these are
actions to reduce the workload of hard-pressed Remedial Project Managers, to use the
ii
-------
quicker device of the removal contract to conduct certain high-priority remedial work, and
to improve Headquarters technical, administrative, and clearinghouse oversight and support
to the field.
Chapter IV challenges EPA to invest more heavily in the development and use of
treatment technologies to bring about permanent remedies in the field. The report
identifies barriers posed by conflicting statute (i.e., RCRA's land ban requirements) and
rule (e.g., Federal Acquisition Regulations), as well as opportunities for further investment
in research and technical support.
Chapter V encourages an aggressive program of community involvement in
Superfund site decision-making. Acknowledging that careful community consultation takes
time, the report nevertheless places high value on full and deliberate public discussion, and
accepts the consequence of an occasional missed deadline as the cost. The report also
encourages EPA to eliminate current barriers to obtaining and using Technical Assistance
Grants to the community, so that citizens can have independent access to technical advice.
Chapter VI addresses the key issues affecting EPA's ability to retain and reward
key technical and professional staff on whose backs the program rides. This section
contains a number of recommendations to increase pay, technical and administrative
support, and other job benefits, while balancing the workload of these key staffers. The
report also recommends steps to keep technical contractors out of conflicts of interest by
precluding their participation in regulatory or program policy work.
Chapter VII proposes new ways to measure success for Superfund. Accepting that
a long-term program cannot be evaluated early on the basis of ultimate results, th?s section
recommends action on several fronts to involve citizens and public officials in the definition
of acceptable mid-term criteria for evaluating Superfund. Recognizing that so much
disappointment with Superfund's record originates with the failure to communicate both
expectations and results, this section emphasizes broad-scale and continuous communication
about the program, both from EPA to the public, and vice-versa.
In his preface to the report, Administrator Reilly endorses these recommendations,
and calls for a new period of calm, considered debate on the progress and future of
Superfund. It is only in such an atmosphere of shared, realistic expectations that EPA, the
Congress, and affected citizens and industry can work effectively to continually improve the
public benefit from our enormous national investment in Superfund.
The following comprises a brief listing of the task group's 50 recommendations for
improving Superfund. For a complete discussion of findings and recommendations, please
refer to the appropriate chapter in the report.
iii
-------
Chapter I. A CLEAR STRATEGY FOR SUPERFUND
Chapter II. STRENGTHENING ENFORCEMENT AND MAXIMIZING
RESPONSIBLE PARTY WORK AT SUPERFUND SITES.
Increase use of unilateral administrative orders for a more muscular enforcement
program.
Take steps to ensure the full use of settlement tools provided for by the SARA
amendments to negotiate cleanup agreements that do not compromise
environmental goals.
Establish an integrated enforcement and response program.
Establish an integrated timeline for managing both enforcement and Fund-financed
activities and establishing deadlines for key response actions by PRPs and the
Agency.
Encourage the creation of specialized administrative support units (with proper
skill mixes) to enhance the enforcement process in the regions.
Develop specific goals and timeliness to improve enforcement of information
requests.
Expand Agency efforts to promote closer oversight of private party RI/FS.
Maximize Regional flexibility in shifting funds among sites to make the threat of
enforcement more credible.
Improve approach to cost recovery by initiating rulemaking process that targets
realistic goals and procedures.
Develop an improved strategy for recovery of costs for removal actions.
Improve intergovernmental coordination of Superfund enforcement activities.
Chapter III. ACCELERATING AND IMPROVING REMEDIAL ACTION
Communicate to Superfund Managers, staff, the Attorney General and the heads
of other Federal agencies involved that the primary mission of the program is to
take responsible action at sites as rapidly as possible.
IV
-------
Hold EPA line manages accountable for managing the program in accordance with
this mission.
Direct the development of formal and informal mechanisms to reward innovation,
risk-taking, and decisive action.
Headquarters and Regional Offices take actions to promote consistency in remedy
selection, compliance with statutory mandates, and appropriate consideration of
available factual and analytical data about site conditions and potentially applicable
remedial technologies.
Take actions to minimize uncertainty and confusion about Applicable or Relevant
and Appropriate Requirements of Federal environmental laws.
Take actions to enable Remedial Project Managers to identify and use EPA's
technical support services. Within the next several months, lay the groundwork for
effective long term coordination and management of technical support services to
RPMs.
Resolve the fundamental policy question of what States' long-term role in the
Superfund program will be, develop short- and long-term strategies to enhance
State program capability.
Take steps to facilitate Regional Offices' use of and access to headquarters program
technical and policy guidance.
Chapter IV. BRINGING INNOVATIVE TECHNOLOGIES TO BEAR ON
POLLUTION AT SUPERFUND SITES TO STRENGTHEN REMEDY
SELECTION
Review and revise all Agency policies and guidance to ensure that use of treatment
technologies is given stronger emphasis in accordance with SARA's directions.
A senior program manager in the Office of Solid Waste and Emergency Response
should serve as 'Technologies Czar" to coordinate the development and use of
innovative, cost effective, treatment technologies in the Superfund and RCRA
programs.
Carefully evaluate impact of RCRA land ban or other rules on use of alternative
technologies.
Develop guidance that balances the goal of advancing innovative technologies
against the need to minimize challenges during cost recovery actions
-------
Evaluate the provisions of the Federal Procurement Regulations to determine where
latitude exits to eliminate procurement constraints to utilizing treatment technologies.
Establish nationwide technology support teams within the Office of Research and
Development to assist the Regions in Remedy selection decisions.
Provide policy guidance to the Regions to ensure that treatability tests are
emphasized, as well as guidance on how to use treatability studies in selection of
a clean-up technology.
Establish an information clearinghouse within ORD for information on technology
performance and make this information easily accessible to the Regions.
Continue and expand ORD's current technology-transfer activities.
Expand the Superfund Innovative Technology Evaluation Program in ORD and
support NETAC.
Expand in-house and university research programs in targeted areas where private
research is lacking.
Chapter V. A MORE AGGRESSIVE PROGRAM OF COMMUNITY INVOLVEMENT
Give citizens a much greater role in the Superfund program, especially at PRP
lead sites.
Strongly support increased citizen involvement in Superfund decisions, accept
occasional delays as a result of greater public involvement.
Plan for citizen involvement at each stage of the Superfund process.
Increase EPA staff to allow more frequent communication with the affected public.
Use "Senior Environmental Employees" (retirees) more extensively in Superfund.
Citizens' access to information should be comparable to that of PRP's.
Release information to the administrative record and to information repositories as
quickly as possible, and ensure that citizens are notified of the availability of this
information.
VI
-------
Write clear, understandable summaries of complex technical documents, and provide
copies to citizens.
Encourage Regions to find ways to bring citizens into technical discussions early in
the RI/FS process.
Strongly support the reform of the Technical Assistance Grants program to
eliminate barriers to their use.
Chapter VI. MANAGEMENT AND ADMINISTRATION: FREEING UP THE SKILLS
AND THE TOOLS TO DO THE JOB
Develop pay, training and incentives programs to attract and retain key field staff.
Provide field staff with adequate administrative support.
Reduce Agency dependance on contractors in certain program areas and avoid
conflict of interest in contracting work.
Chapter VII. ACCOUNTING FOR ACHIEVEMENT: COMMUNICATING PROGRESS
TO THE PUBLIC
Identify more effective ways to include interested parties in the policy debate at a
national level ~ Start a national dialogue with Superfund's many constituencies on
important elements of the program.
Accelerate improvements to the existing management measures to support the
national program manager's communication of Superfund progress - include
"environmental results measures" as better ways to communicate progress.
Review Superfund's internal management measures with an eye toward eliminating
unnecessary or redundant reporting and focusing more directly on measures to
improve performance.
Develop and implement a national plan to inform the public about the Superfund
program and its achievements.
Provide communications training to employees to help make public education a
Superfund priority at basic levels.
Vll
-------
INTRODUCTION
-------
INTRODUCTION
The Task Group intends this document to be a frank and open report on the state
of the Superfund program in June 1989. Commissioned by newly confirmed Administrator
William K. Reilly, the report presents facts, observations, and the best professional
judgment of experts within the Agency and from several States who have struggled over
nearly ten years to make Superfund work well to improve the environment. The report
also draws on detailed consultation with citizens, reporters, Congressional staff, industry and
governmental representatives, and communications professionals.
In preparing the document, The Task Group took the attitude that only through
honest and objective reappraisal can the Agency recognize problems and opportunities and
act on them responsibly. For that reason the report emphasizes clarity, candor, and
constructive scrutiny of the genuine state of affairs in Superfund. If any hint of
defensiveness or posturing has crept into these pages, it has survived our best collective
efforts to eliminate it.
THE NATURE OF THE PROBLEM AND PERCEPTIONS OF THE PROGRAM
The Federal government's Superfund program has reached a critical juncture.
Launched in 1980 as a frontal assault on the Nation's hazardous waste sites, the program
began amid high expectations of quick success. This seemed a reasonable premise at the
time. With broad-based public and Congressional support and a growing network of State,
local, and private authorities, EPA had just led the Nation to notable progress against the
most alarming environmental problems of the seventies: foul urban air, and choked,
unsightly waterways. Compared to the ubiquity of such air and water pollution, the
challenge of what was assumed to be a few hundred discrete, land-based cleanups
appeared relatively easy. Furthermore, the Congress created a $1.6 billion war chest to
ensure that funding would prove no obstacle.
Things have not worked out as smoothly as that, however. Since 1980, the problem
of neglected hazardous waste sites has revealed itself to be far more complex and diffuse
than anyone at first realized. In the fight to control conventional pollutants in air and
water, EPA was able to apply proven technologies to produce fast results. With Superfund
no such resource was available. Instead, EPA and State technical managers have exercised
considerable ingenuity in devising ad hoc control strategies to deal with literally hundreds
of field situations that are unique in the Agency's experience.
-------
Measured against public and Congressional expectations, the pace of EPA's actual
progress has proved frustrating. Controversy surrounding EPA's early management of the
program unquestionably built a legacy of public distrust. Just as surely, persistent
denunciations of the program have turned up the heat but shed little real light on the
situation. As a consequence the Nation is only now beginning to confront the real
dilemma: how to reduce environmental risks from a growing list of sites presenting ever
new complexities, in a situation characterized by incomplete knowledge, immature
technology, and relentless pressure on a limited pool of resources.
In the often contentious debate that has developed over Superfund policy and
practice, EPA has operated without its once most valuable asset, the benefit of the doubt.
Though the program has picked up speed, Superfund continues to fall short of public
expectations. Whether fairly or not, debate centers around the program's flaws, both real
and perceived—at all levels from national policy to local site management. Most
disturbingly, citizens of communities affected by Superfund sites, sharing the right of all
Americans to a clean and healthy environment, have increasingly questioned the
commitment of their Government to protect that right. Pressed by the concerns of a
vocally dissatisfied public, an impatient Congress has set tighter and more ambitious targets
for Superfund.
In this charged atmosphere, the Superfund program's competent and highly
motivated technical and legal staff have found their workloads rising, while their real-dollar
earnings, job satisfaction, and public support decline. Understandably, many are leaving
public service, some to join private concerns that allow them to continue their work on
hazardous waste management at considerably higher salaries, while providing a buffer from
public criticism.
It needn't be this way. Both success and failure are relative, the final determination
being a function of expectations as much as of performance. If Superfund is perceived so
far to have been a high-cost disappointment, it is largely because program performance has
not met high, and perhaps unrealistic expectations. Superfund is succeeding, however, in
its no less vital obligation to make steady progress in defining the nature and scope of the
task, and to discover, test, and carry out the most efficient methods of achieving lasting and
satisfactory cleanups.
The number and distribution of hazardous waste sites we now recognize dwarfs the
scope of the problem that was originally assumed. More than 30,000 hazardous waste sites
have been identified as possible candidates for Superfund, with over 27,000 having
undergone preliminary field review and classification. Of these, nearly 1200 have been
assigned high priority for further action by EPA. Still more are being cleaned up by States
or private parties. In fact, because remediation of the most damaged sites involves many
years of painstaking ground-water treatment, new sites continue to be placed on the
National Priorities List faster than existing sites are removed.
-------
In evaluating the program, however, fair-minded critics should consider that the very
idea of Superfund is new, generated from public debate and legislative action in response
to such environmental catastrophes as Kentucky's Valley of the Drums and Love Canal in
New York State. It was speedily designed, speedily enacted, and speedily put into place.
In fact, it may be no exaggeration to call Superfund the most far-reaching national
engineering program ever mounted withov/, benefit of a single field trial. In such a
program, the most important early produce must necessarily include learning. In that
respect, after nine years of experience the most important lesson may be that the
Superfund program faces a workload stretching well into the next century, and would do
so even if everything had gone right from the very start. It is time to adjust expectations
accordingly.
Based on everything that is known about the situation, the only possible conclusion
to be made is that the Superfund program will be around for many, many years and it will
be quite expensive. EPA estimates that the cost of construction at current National
Priorities List (NPL) sites is likely to be $30 billion, assuming that half the work will be
done directly by the Fund and half by responsible parties. It will probably take about 13
years to begin construction on just the sites that are currently on the list, and the Agency
expects to add sites to the inventory at the rate of about 75 to 100 per year. Based on
EPA's current inventory, the National Priorities List is expected to grow to 2100 sites by
the year 2000. Currently, the average cost of construction per site is approaching $25
million, and there is every reason to believe that these costs will grow higher as some of
the Agency's more complex sites move into the construction pipeline.
The problem is large, complex, and long-term, the job ahead enormous. It will
require technical competence and ingenuity, administrative savvy and creativity, political
courage and wisdom, and plain, old-fashioned persistence to clean all the sites already
known to present unacceptable risk. Since it is evident that complete success is a distant
goal, it is critically important to take time now to review the experience of the last nine
years, and to harvest the learning that will allow the Nation to make the best use of the
Superfund program in the succeeding decades. That is what this report is about.
THE RECORD TO DATE
Many have judged the success of Superfund by the number of sites removed from
the National Priorities List. Currently that number is 26, with another ten sites newly clean
and soon to be deleted. While that number reflects substantial recent progress, it is still
below initial projections. Evaluating Superfund by tallying site deletions, however, is not
only discouraging, it is inherently misleading. For one thing, deleting a site from the NPL
is the very last step in a multi-stage procer Before deletion, EPA monitors sites long
after cleanup standards have been achieved . j ensure that those standards remain in effect.
-------
Given the long-term nature of the problem, the number of early cleanups may be an
indicator only of how few sites are physically capable of being cleaned and verified so
quickly. The figure may in fact say more about the intractability of pollution at most sites
than it does about the success of Superfund.
Success for Superfund is more appropriately measured in terms of the successive,
interim steps that quickly provide a margin of safety for local residents. By this standard,
EPA is slowly gaining momentum. Although the record still needs substantial improve-
ment, it is better than it looks.
For example, the Superfund Amendments and Reauthorization Act of 1986 (SARA)
set a tough deadline of one year for EPA to complete an additional 4700 preliminary site
assessments. The Agency met this goal. EPA has conducted emergency removals to attack
the most immediate source of toxic exposure at more than 1300 sites in communities across
the nation. In fact, the removal program is one of Superfund's biggest unsung success
stories. Actions taken under this program have cost nearly $400 million and EPA has used
its enforcement authorities to get responsible parties to take removal action in another 200
cases. Finally, long term cleanup work is currently underway to neutralize the source,
contain the spread and systematically reduce (or eliminate) toxic pollution at over 400
sites under Superfund's remedial program.
SARA also set a deadline of October 1989 for EPA to undertake the major
technical planning work (known as remedial investigation/feasibility studies) at 275 new
sites, a formidable target. As this report is issued, EPA can announce that this ambitious
goal has also been met, three months early. Since SARA, too, EPA has begun the major
construction and reconstruction necessary to complete the job of cleanup (known as
remedial action) at over 100 locations, and is on schedule to meet the extremely aggressive
goal of 175 new starts by mid-October.
As for enforcement, since the passage of SARA, the Agency has seen the initiation
of approximately $1 billion worth of site work under enforcement action and settlements.
In fact, at this time roughly half of Superfund's on-site work is being conducted by
responsible parties under some form of enforcement action by EPA, and this proportion
is expected to increase over time.
When all is said and done, few realize that the environmental benefits of Superfund
go well beyond Superfund cleanups. Since the passage of CERCLA, many States have
enacted their own hazardous waste site cleanup laws. The Superfund liability standard has
also provided a powerful incentive for businesses, Federal facilities, and local governments
to properly manage their wastes. Additionally, the threat of potential Superfund liability
has spurred businesses, particularly during property transfers, to conduct environmental
audits and remediate environmental problems, not only for hazardous wastes but for
environmental problems in general.
-------
Though this is an impressive record, the question remains, is it enough? The
answer, obviously, is no. Even given the necessity for steady, incremental progress as
opposed to "miracle" cures within the Superfund program, few believe EPA is doing as
much as it can, as well as it can, or as fast as it can to move that progress along. EPA
acknowledges the validity of that assessment.
THE CHALLENGE OF CONFLICTING EXPECTATIONS
It is one thing to state the Agency must do better, quite another to carry out the
necessary improvements. This report makes a strong case that any single action the
Agency takes to pursue a significant goal of Superfund may conflict directly with a
competing, and often equally important goal. For example, the expectation of prompt
cleanup often presses up against the need for full and responsive public participation in
the cleanup process. Quick cleanup may also argue for a generous degree of Regional
autonomy, which implies variability of decisions across Regions, at the expense of consistent
national program direction.
The direction of SARA to attain at each site the highly protective health-based
standards set under other statutes creates time and cost demands that often can be
satisfied only at the sacrifice of another statutory objective, prompt and effective action at
all sites listed on the NPL. Current estimates (extrapolated from early, and perhaps
relatively inexpensive cleanups) suggest that, despite the magnitude of the Fund at $8.5
billion, it contains only a fraction of what will eventually be needed to achieve final cleanup
at all currently listed sites. Even if more funds were available, however, the Agency lacks
sufficient expert staff, and the Nation enough qualified engineers to take on a full-scale
effort at all sites simultaneously. For the moment, the program can pursue either
complete cleanup at some sites, or incremental cleanup at many sites, but cannot fully
accommodate both goals simultaneously.
Of course, aggressive enforcement will induce responsible parties to bear more of
the load, but only if the Fund itself remains sufficiently robust to pose a credible resource
for direct Federal action. Used in this manner, the Fund is actually a better threat than
a weapon. For this reason, the use of enforcement to multiply Superfund's impact argues
against pouring out the Fund to attack too many sites simultaneously.
The challenge to the Agency, then, is to balance such competing goals to achieve
necessary cleanup at the most dangerous sites as quickly as possible. EPA must employ
novel administrative and technological methods to accelerate the pace, expand the
coverage, and improve the quality of the program over time. This will demand patience
and wisdom not only from EPA's management and staff, but also from the public.
-------
Americans are learning to view Superfund as a long-term, incremental program
exploring new frontiers in the evaluation and mitigation of complex soups of pollutants,
many of which lie underground. If EPA is to succeed, it must be confident that Congress
and the public will support the Agency's discretionary efforts to administer the law without
fear of losing its authority to apply learning from one site to the next. Since EPA is
formally entrusted with public stewardship of the program, the Agency depends entirely
on the American people's genuine trust and support to carry out that mission.
A CLEAR STRATEGY FOR SUPERFUND
To earn the trust necessary for success, EPA must clarify, communicate, and gain
broad acceptance for its fundamental strategy in carrying out the program. This strategy
makes it possible to attack the riskiest problems first, removing the sources of immediate
threat in a logical and systematic manner, and then turning to sources of remaining long-
term risk on a priority basis. The strategy squarely confronts the need to set a deliberate
pace toward final remediation of residual problems posing less immediate risks than those
commanding nearer-term action. In this way the strategy articulates a clear direction for
management of Fund resources in order to achieve the greatest environmental
improvement possible from a combination of public and private resources over the long-
term.
While the body of the report provides necessary detail, in brief the Task Group's
proposed strategy embodies this vision:
Make Sites Safer-Control Acute Threats Immediately
EPA's first priority under Superfund is to render hazardous waste sites stable and
eliminate any immediate endangerment to citizens. Under this "safety first" dictum, sites
presenting the most acute risk to human health will receive the earliest and most aggressive
action.
Effective immediately, the Administrator will direct each Regional Office to do a
removal assessment at each site on the National Priority List. This assessment will look
at the environmental and public health impacts of each site, and will be used to determine
what action~to include immediate removal action or enforcement action where viable and
liable responsible parties have been identified-must be taken to render each site safe from
immediate hazards to public health and the environment. EPA will be in the field fast,
sizing up the scope of the problem and taking the necessary action to assure that the site
is made safe in the short-term. Information gathered from the site assessment will be
added to establish priorities for longer-term remediation action necessary to complete
cleanup.
-------
Make Sites Cleaner-Worst Sites. Worst Problems First
After abating immediate threats, EPA will conduct the earliest remedial work for
those problems at sites that retain high priority when compared with competing problems
across the Nation. EPA will typically plan action toward final cleanup at each site in
deliberate stages to provide additional or longer-term impro cements toward final cleanup.
Carefully Monitor and Maintain Sites Over the Long-Term
EPA will not walk away from its obligation to protect human health and the
environment at each and every NPL site. The Agency will carefully monitor and maintain
sites over the long-term to ensure that sites remain safe. If EPA selects a remedy where
hazardous substances remain on-site, EPA will conduct a review at least every five years
after the initiation of the remedial action. Based on that review, EPA will take action at
the site if necessary to protect human health and the environment. EPA will report
annually the results of all five year reviews that were conducted during the preceding
twelve month period and will modify current policy so that no site, where hazardous
substances remain, will be deleted from the NPL following a final cleanup that meets
health and environmental goals until at least one five year review is conducted and the
review indicates that the remedy remains protective of human health and the environment.
Emphasize Enforcement to Induce Private-Party Cleanup
EPA will emphasize enforcement to induce potentially responsible parties (PRPs)
to carry out more cleanups under EPA direction. Our objective will be to either rapidly
achieve enforceable agreements by PRPs to carry out cleanups or, where such agreements
are not reached, to order PRPs to carry out cleanups at every NPL site where responsible
parties can be found. In doing so, the Agency will expand both its use of coercive
enforcement measures and its use of more flexible settlement procedures provided by the
1986 amendments. PRPs choosing to undertake cleanup, even under threat of enforcement
action, can expect close cooperation from EPA to move from planning to field remediation
as quickly as possible.
Develop and Use New Technologies For More Effective Cleanup
To ensure cleanups provide long-term protection of human health and the
environment, EPA will use permanent remedies where possible and aggressively seek
innovative treatment technologies *hat reduce the toxicity, mobility, and volume of wastes
at Superfund sites. To accelerate the use of promising experimental treatment methods,
EPA will initiate a more far-reaching and comprehensive program of technical assistance
and support to those evaluating and selecting site remedies.
-------
Improve Efficiency of Program Operations
While the nature of the program militates against short-cuts, EPA will simplify some
costly and time-consuming procedures at many sites without loss of programmatic quality
or completeness. In addition, EPA's site managers will seek greater procedural efficiency
and programmatic effect by employing a "One Program" concept. This means EPA will
match the most appropriate tools available to the environmental problems to be corrected,
regardless of whether the project is being managed through the Fund or under an
enforcement settlement.
Encourage Full Participation by Communities
EPA will re-energize its outreach to encourage broad-scale public information and
involvement in program decisions. The Agency will pay more attention than in the past
to involving the community in selecting remedies in the growing number of projects
conducted by PRPs under enforcement settlements. The Agency needs people directly
affected by the program to share in realistic expectations, and to assist the Agency in
reaching appropriate, cost-effective cleanup decisions that do not compromise
environmental goals.
Foster Cooperation with State Agencies and with the Natural Resource Trustees and the
Agency for Toxic Substance and Disease Registry (ATSDR)
EPA recognizes that others have a significant role to play in the Superfund process,
primarily the States and the Natural Resource Damage Trustees. In addition to
implementing the recommendations in this report, one of the Agency's principal goals
should be to build a solid relationship with the States, Trustees and ATSDR to ensure that
the Superfund process is working as efficiently and cooperatively as possible.
THE CHALLENGE AHEAD
Superfund's problems are tough and will not be soon or easily solved. Balancing
competing statutory goals, getting the most from an apparently huge but actually limited
resource pool, rewarding and retaining a top-notch Federal technical staff, and ensuring
first-rate work in the public interest by teams of contractors with divided interests, while
only parts of the challenge, nevertheless make up a formidable agenda. For EPA's
management and staff, however, this report confirms that with a shared understanding of
the true nature and scope of the problem, all parties to the program can work more
effectively and harmoniously to achieve Superfund's essential national goals.
8
-------
I. A CLEAR STRATEGY FOR SUPERFUND
-------
CHAPTER I
MEETING THE PUBLICS EXPECTATIONS:
A CLEAR STRATEGY FOR SUPERFUND
Congress and the American people have had high expectations for Superfund but
are generally disappointed by the results of the program. There have been many
accomplishments in Superfund in recent years through the often unrecognized
accomplishments of competent, dedicated Superfund managers and staff. But there has
also been limited public knowledge or acceptance of the program's success at a national
level. This not only suggests that EPA needs to more effectively communicate program
achievements but also that EPA needs to resolve the lack of congruence between what the
public expects from Superfund and what EPA believes can be delivered. The lack of
public trust and EPA's inability to establish and maintain credibility led the task group to
examine the public's expectations for the Superfund program and the factors that affect
EPA's ability to meet these expectations.
As the task group set out to identify what the "public" expects from Superfund, we
targeted our efforts on those who have a stake in the success of the program. This
includes:
* the affected public - people who reside near Superfund sites.
* frontline EPA employees - EPA employees in the field such as the
remedial project managers, on-scene coordinators, and enforcement
attorneys.
* progressive potentially responsible parties (PRPs) - those parties who
are potentially liable for cleanup that are willing to meet their
obligations under the law.
* the general public -- individual citizens as well as industry and
environmental groups who are concerned that Superfund is successful
in carrying out cleanup and that Trust Fund dollars are well spent.
* Congress and State and local governments - parties who play a direct
role as co-implementors of the program (e.g., who maintain a budget
or oversight role or who share responsibility for getting sites cleaned
up).
1-1
-------
In summary, these are the groups whose expectations are crucial to the success of
the program. To better identify the expectations of these groups, the task group analyzed
more than thirty recent studies and reports on the program. We also conducted numerous
interviews with citizens near sites, national environmental organizations, Congressional
House and Senate staff, State officials, EPA management and staff, EPA contractors, and
companies who are responsible parties at Superfund sites.
Through these analyses and interviews, the task group identified what different
people expect from the program. The task group also identified several barriers to
meeting those expectations and developed a strategy to guide EPA in implementing the
program. The overriding goal in articulating what people expect from Superfund - and
in designing a strategy for implementing the program - has been to improve EPA's ability
to effectively manage the program and to regain the public's trust in our ability to do so.
This chapter presents the findings and makes recommendations which the task group
believes will help Superfund achieve its statutory goals and become a success in the eyes
of Congress and the American people.
THE PUBLIC'S EXPECTATIONS
People interested in Superfund vary in their opinions on what they consider
important to program success. However, the task group found that several expectations
are common to most people. At the most basic level, people want the site cleaned up
now. A closer examination shows that they care about action, timeliness, quality, risk
reduction, enforcement, cost, innovative technologies, and a participatory process.
Action
The public wants actions taken at many more sites on the National Priorities List
(NPL) that show measurable and visible environmental results. "Action" refers to removal
or remedial actions that remove or remedy the contamination resulting in a site cleanup.
The concern for action is expressed in a number of different ways. Some people are
concerned that once a site is listed on the NPL that EPA is not in the field quickly
enough initiating response actions. Others are concerned that actions must lead to sites
being deleted from the NPL.
Timeliness
The public is frustrated by the slow pace of site cleanup. Many people encourage
the initiation of actions as early in the process as possible to enhance the responsiveness
and efficiency of the program. Others noted that progress is impeded by a number of
different elements. For example, the process of investigating site contamination and
1-2
-------
analyzing alternatives for cleaning up the site (known as the remedial investigation/
feasibility study or RI/FS) is cumbersome, lengthy negotiations or litigation can cause
delays in cleanup, and overwhelming workloads on EPA personnel can slow down site
action.
Quality
The public wants "quality" work at sites. However, "quality" means different things
to different people. Many people believed that "quality" means the selection of remedies
that result in permanent solutions to site problems. Some interpret "quality" to mean use
of treatment and innovative technologies. Still others see "quality" as the selection of
actions that are appropriate to meet the site conditions and remedy the problem. Others
believe consistency in the "quality" of the work is important and were concerned about the
"quality" of the document which contains EPA's decision on the selection of the remedy.
Rfek Reduction
The public wants to be protected from the risks associated with living near a site.
Some people recommended reducing, controlling, and eliminating risks as soon as possible.
People are particularly concerned about the perceived health effects and view risk in terms
of whether they can drink the water, whether their children play in the yard, and whether
the river is safe for fishing or swimming. There are disconnects between how people living
near Superfund sites view and talk about risks and how EPA staff perceive, and
communicate, them.
Enforcement
Many people want more enforcement and endorse an "enforcement-first" approach.
Enforcement-first means that parties who are potentially liable for cleanup (known as
potentially responsible parties or PRPs) would be doing more cleanups in lieu of
government-financed actions. People believe having the PRPs do the work will result in
more site cleanups. This is important because people believe Trust Fund revenues are not
sufficient to take a public works approach to Superfund cleanup. EPA was also
admonished for not aggressively using the full set of enforcement authorities provided by
the Superfund amendments. On the other hand, some people expressed distrust in
allowing PRPs to conduct actions at sites. They noted that the quality of documents
prepared by PRPs and contractors are sometimes mediocre and that work or studies must
often be redone.
1-3
-------
Cost
Many people are concerned about the escalating costs of the program both for the
RI/FS and the actual design and implementation of the remedy (known as the remedial
design/ remedial action or RD/RA). Some people suggested that EPA could benefit from
years of experience and obtain some cost savings by streamlining studies, where
appropriate. PRPs indicated that their costs should not be greater than if the site is
cleaned up by the Fund. Others are concerned about EPA's consideration of
cost-effectiveness in remedy selection, asserting that protecting public health rather than
cost-effectiveness should drive the selection of the remedy.
Innovative Technologies
Some people want greater use of innovative technologies and criticize EPA for
relying on older, proven, and sometimes less permanent technologies. There is also
concern about a perceived lack of an EPA commitment to encouraging the research and
development of innovative technologies. Some suggested that the existing EPA program
for the development and demonstration of innovative technologies (the SITE program)
could be more effectively integrated into Superfund. However, others believe that using
"unproven" technologies at sites could be risky.
Participatory Process
The public - especially States, communities affected by sites, and PRPs - want
greater and earlier involvement in Superfund actions. Regional offices indicated that
their community relations efforts at sites have been most successful when they initiate
early citizen involvement well before the formal public comment period. PRPs want early
participation in the settlement process and want a stronger EPA commitment to early
information sharing to nurture effective negotiations and rapid settlements.
BARRIERS TO MEETING THE PUBLICS EXPECTATIONS
The public's expectations reflect important concerns. However, several barriers
limit EPA's ability to fully meet all of the public's expectations. First, barriers to meeting
the public's expectations exist because many of the expectations compete with one another.
While not mutually exclusive, the competing expectations require EPA to strike a balance
among them, in some cases making difficult choices or trade-offs based on key program
objectives. Next, there are constraints as to what EPA can accomplish given the size of
the problem and the resources available for cleanup. Finally, there are limits to the
availability of technologies that are suitable for cleanup.
1-4
-------
Competing Expectations
Timely Cleanup Versus Participatory Decisions
The public expects sites to be cleaned up in a timely fashion. The public also
expects to have substantial and meaningful involvement in the decision-making process.
However, the cleanup process is a lengthy one that involves complex problems, uncertainty
in data, and different opinions on how to address the problem. Building a consensus
among citizens, the PRPs, and the government is essential but inevitably takes time to
achieve. The more people involved in the decision, the more time it generally takes to
reach a consensus.
Decentralization Versus National Consistency
Because Superfund is a national program, the public expects consistency in program
operations (e.g., in remedy selection, in cleanup standards, and in implementation of
settlement and enforcement policies). To speed action, however, EPA has decentralized
the implementation of the Superfund program by delegating substantial decision-making
authority to the Regions. Decentralization removes the encumbrance of additional layers
of review but provides the potential for inconsistent actions.
Complete Cleanup Versus Cleanup In Stages
Deleting a site from the NPL has been used as the only meaningful measure of
cleanup. The expectation that EPA should be deleting more sites encourages an approach
that moves sites to final remediation now and discourages an approach that emphasizes
addressing sites in stages. Some regions are cautious about proceeding to clean up sites
in stages because they are uncertain about how these steps will relate to comprehensive
solutions at the site. Because resources are finite, an emphasis that focuses on completely
cleaning up sites now results in cleanup at fewer sites whereas emphasis on cleaning up
sites in stages results in reducing risks or making progress toward cleanup at many more
sites.
Fund Versus Enforcement
The quickest action taken for any given site may involve using the Trust Fund to
finance government cleanup action. But Congress provided EPA with a range of
enforcement and settlement tools to ensure PRP cleanup of sites. If the goal of the
Superfund program is to clean up sites as quickly as possible, then Fund-financed response
may be the best mechanism. Additional time and effort are typically needed when using
enforcement or settlement approaches to cleanup. For example, it is often a lengthy
process to negotiate a settlement or to enforce efforts to compel PRP cleanup through
litigation.
1-5
-------
Achieving Targets Versus Environmental Results
Congress and the public expect environmental results from Superfund cleanups,
but they also expect the Agency to meet statutory deadlines (or targets) for preliminary
assessments and site investigations as well as for initiating RI/FSs and remedial actions.
Achieving targets can mean trade-offs with achieving environmental results. Targets are
numerical goals that do not measure quality, timeliness or risk reduction. Program success
is frequently measured by reaching targets, such as studies and referrals, rather than actual
cleanup actions or enforceable commitments to cleanup actions.
Permanence Versus Technology Constraints
Congress and the public expect site remedies to meet the statutory requirement to
use permanent technologies, to the maximum extent practicable. However, judgments
differ about what is practicable and the use of such technologies may not be compatible
with legitimate technological constraints. For example, cost-effective permanent
technologies have not been developed for some difficult problems, such as decontaminating
large areas of contaminated soils or groundwater aquifers. In addition, some people favor
the use of new and innovative technologies while others are concerned that such
technologies, which have either not been previously used or that have had limited practical
application, will be unsafe and ineffective.
Size of the Problem and Resource Constraints
The Problem Is Big
The scope and complexity of Superfund are far greater than originally imagined.
When the program was created in 1980, Congress and the public viewed Superfund as a
short-term response to a short-term problem of cleaning up abandoned hazardous waste
sites. The past nine years have revealed the true nature and extent of the hazardous
waste site problem. Superfund has become a long-term program in response to our
growing understanding about the scope of the problem.
EPA now knows that many thousands of sites must be evaluated to determine
which are serious enough to warrant inclusion on the NPL and that many of these sites
will be addressed under Superfund. Currently, sites are added to the NPL at a rate that
exceeds the rate of cleanup. We also know that much more time is required to clean up
individual sites than originally expected. The task of cleaning up the current NPL alone
will take many more decades.
Some numbers will put this issue into perspective. EPA's list of sites to evaluate
for possible inclusion on the NPL now contains 31,000 sites (an average of 2,000 new sites
a year). EPA has historically listed on the NPL about five percent of the sites it has
1-6
-------
evaluated. In 1986, the evaluation list stood at about 25,000 sites; EPA had completed
the decision process on just over 6,200 sites; 703 were on the NPL; and about 5,500 were
eliminated from consideration. EPA has now identified some 1,200 sites as proposed or
final on the NPL and has determined that about 16,000 others are not NPL candidates.
EPA has made major strides in addressing the evaluation backlog, but much remains to
be done.
The task of cleaning up the current NPL will take many more years, considering
the amount of funding available and the time it takes to complete some actions. At the
present rate of funding, EPA can start about 40 construction projects per year. PRPs
are financing another 50 or so per year. With the NPL now standing at nearly 1,200 sites,
over 250 have been financed to start construction. It will take a number of years to
initiate construction at the remaining NPL sites. While cleanup action may take four to
five years at some sites, it can take decades at others. In cases of extensive ground-water
contamination, long-term pump and treat response actions are often projected to take 20
to 30 years, and in some cases up to 50 years.
The Trust Fund Is Finite
Federal dollars alone cannot clean up all of the sites on the NPL. The Trust
Fund's current authorization of $8.5 billion is not sufficient to address the problems at
sites on the current NPL, much less those that eventually will be listed. The cost of
cleanup is escalating and now approaches $25 million for construction costs at each site.
The current projected total cost of construction for all sites on the current NPL is $30
billion. PRPs are expected to pay for 50% of such costs. Superfund's success will require
a joint effort that includes the States as co-implementors, and the responsible parties as
full contributors.
The Pipeline Is Full
Activities in all parts of the cleanup process (referred to as the remedial pipeline)
from pre-remedial through remedial action have been conducted at a record rate since the
passage of the Superfund amendments in 1986. The capability of the Federal government
to manage the pipeline of activities that must be conducted to achieve cleanup at sites is
essentially full. Resource problems are likely to continue to constrain program activities
across the entire pipeline and will require EPA to make hard choices among competing
program objectives. This means EPA is now reaching a stage of Superfund development
where we can no longer take a "fire house" approach to site cleanup; that is, deal with
sites on a "first-come, first-served" basis.
1-7
-------
The fact that the remedial pipeline is full is currently demonstrated by the large
number of post-1986 remedial projects that are entering the construction phase. Even
with high levels of PRP participation in the program, there are insufficient funds to
construct all projects that are and will be ready to move into construction. EPA's
Superfund managers are now grappling with issues such as: how to decide what projects
to move to construction and what projects to place on "hold"; and how to move projects
forward into construction while effectively maximizing PRP involvement.
Technological Constraints
There is a need to develop innovative technologies and to remove existing program
constraints to their use at Superfund sites. Various studies have stressed the need for
long-term, reliable, and cost-effective treatment technologies that will permanently clean
up hazardous waste sites. However, these same studies point out that the demand for
treatment often outstrips the availability and capability of existing treatment technologies.
The fact that demand is far greater than currently available technologies exacerbates
EPA's problems in trying to use permanent technologies at some sites in the near term.
Managing Superfund as the long-term program it has become will allow time for
innovative technologies to be developed, demonstrated, and made available for commercial
use.
A SUPERFUND STRATEGY
Because there are competing public expectations for Superfund and because there
are important resource and technological constraints, EPA should adopt a strategy to
manage its environmental priorities and to establish an operating framework for
implementing the program. This strategy must take into account the public's concerns
without escalating or creating expectations that cannot be met. An environmental
priorities approach for the Superfund program is important because it will help EPA
strike a balance among competing public expectations and deal with resource and
technological constraints.
EPA's overriding goal is to protect human health and the environment. EPA is
obligated and firmly committed to reaching final cleanup that meets health and
environmental standards at all NPL sites. EPA will continue to remediate sites until final
cleanup goals are met. However, EPA cannot do everything at once. There are neither
the resources nor the technologies to achieve final remediation at every site on the NPL
in the near term. In fact, final cleanup objectives may not be reached at a particular site
for a long time (e.g., especially site conditions that include large areas of contaminated
soils and contaminated groundwater aquifers).
1-8
-------
EPA can, however, do a better job in remediating sites toward final cleanup by
fully implementing an environmental priorities approach to cleanup. The basic philosophy
of this approach, which is already under development in the Superfund program office, is
to more effectively and efficiently use both Fund and private party resources to address
the worst sites and the worst problems first. This means EPA will balance priorities
among sites to ensure that the sites with the greatest health or environmental risks are
addressed first. EPA will then continually reduce risks at sites until the final site goals are
met.
Important factors that help guide this priority-setting scheme include:
* human health and environmental considerations that are clearly
paramount to the program.
* pragmatic considerations that are tied to resource and technological
constraints. This may include such questions as: Given resource and
technological constraints, what is the best method for addressing the
site and how quickly can cleanup be completed?
* early action considerations that emphasize the importance of taking
actions in stages that are fully consistent with the final site goals as
early in the cleanup process as possible.
The strategy consists of eight major elements. The first three elements are the
environmental goals of the cleanup process: making sites "safer" and "cleaner" as well as
monitoring and maintaining sites to ensure they remain safe. The additional five elements
are the means EPA will use to achieve "safer" and "cleaner" sites: more enforcement to
get more PRP cleanups, greater development and use of permanent and innovative
technologies, more efficiency in program operations, greater public participation, and
greater cooperation with State agencies and natural resource trustees.
Environmental Goals
Make Sites Safer -- Control Acute Threats Immediately
EPA will be in the field fast, sizing up the scope of the problem and undertaking
whatever removal or remedial action is needed right away. EPA's first priority is to get
into the field early to abate the immediate threat to human health and the environment
at all NPL sites. Sites presenting the most acute risk to human health and the
environment will receive the earliest action to prevent the spread of contamination and to
control or reduce the risk. Focusing efforts on mitigating immediate threats ensures that
we are making sites "safer" in the short-term.
1-9
-------
Effective immediately, the Administrator will direct each Regional office to do an
environmental and public health assessment at each NPL site. This assessment will look
at the environmental and public health impacts of each site, and will be used to determine
what action, including an immediate removal action or enforcement action where viable
and liable responsible parties have been identified, must be taken to render each site safe
from immediate hazards to the public health and the environment. EPA will then initiate
the necessary action to assure that the site is made safe in the short-term. Information
gathered from the assessment will be added to established priorities for longer-term
remedial action necessary to complete cleanup.
Action may be taken under removal or remedial authorities as appropriate and
must be consistent with the final remedy. Examples of such actions are: removing drum
and tank waste for treatment or incineration; providing an alternative water supply; and
removing waste for interim storage where this improves stabilization of a site. Making
sites "safer" could also include implementing rapid remedial solutions to sites where they
are available and that could be taken after appropriate study but before a full RI/FS is
initiated. This approach would correct the most apparent and immediate site threats very
early in the process.
Make Sites Cleaner - Worst Sites. Worst Problems First
After abating the immediate threat, EPA will initiate the earliest remedial work to
address those problems that retain high priority when compared with competing problems
at other sites. In many cases, EPA will take action in deliberate stages that will result in
continuous improvements until the site is finally cleaned up to health and environmental
standards. Cleaning up sites in stages often makes sense for tackling the worst problems
first and for doing quickly what can be done without delay. Nevertheless, EPA expects
that some sites will be treated in the traditional way, with one RI/FS and one remedial
action. At all sites, especially where cleanup occurs in stages, EPA will remain engaged
in work at the site until final cleanup is achieved. Cleaning up sites in stages toward final
cleanup ensures that we are making sites "cleaner" in the long-term.
Remediating sites in stages is a concept that means implementing response actions
in increments to provide additional or longer-term improvements toward cleanup. In
practice, cleaning up in stages may include taking one or more removal actions (short-
term actions that typically address emergencies or immediate threats), followed by a
longer-term remedial action. Another example is the use of "operable units" that divide
a site into separate problems with independent response actions. Still another example is
the use of an "expedited response action" that describes a partial cleanup that may be
done before the final remedy is selected. "Expedited response actions" must, nevertheless,
be fully consistent with the final remedy.
1-10
-------
Depending on site conditions, EPA will take actions to initially prevent exposure
and/or control risk; further actions will be taken to reduce and/or eliminate risk. For
example, actions may be taken to prevent the spread of contamination, such as using caps,
berms, and slurry walls; other actions may be taken to initiate ground-water pump and
treat systems for contaminated plumes; still other actions may use incineration or
bio-remediation to treat hot ^pots and fully clean up the contamination for a portion of
the site.
EPA will achieve "safer" and "cleaner" sites while striving to meet final site goals
at as many NPL sites as soon as possible. Achieving "safer" sites and "cleaner" sites are
not mutually exclusive goals or activities. A removal action taken to mitigate an
immediate threat can often remediate a portion of a site's problem. All actions to achieve
"safer" and "cleaner" sites are important accomplishments toward final site cleanup. Our
goal is to reduce risk as quickly as possible throughout the cleanup process.
Carefully Monitor and Maintain Sites Over the Long-Term
EPA will carefully monitor sites over the long-term to ensure that the remedy at
each site is fully protective of human health and the environment. As part of our effort
to monitor site conditions, EPA will conduct a review of all sites at least every five years
after the initiation of the remedial action where hazardous substances remain on site to
ensure that human health and the environment are being protected as required by the
statute. EPA will also maintain the effectiveness of the remedy over the long-term by
promptly correcting any additional problems that may arise at sites where our monitoring
indicates that further response actions are necessary to protect human health and the
environment.
To assure the public that EPA is carefully monitoring and maintaining each site,
EPA will report annually the results of all five year reviews that were conducted during
the preceding twelve month period. EPA will also modify Agency policy so that no site,
where hazardous substances remain, will be deleted from the NPL until at least one five
year review is conducted and the review indicates that the remedy remains protective of
human health and the environment.
Means to Achieve Environmental Goals
Emphasize Enforcement to Induce Private Party Cleanup
EPA will encourage or compel PRPs to do more work to increase the total number
of cleanups. Our objective is to either rapidly achieve enforceable agreements by PRPs
to carry out cleanups or, where such agreements are not reached, to order PRPs to carry
out cleanups at every NPL site where responsible parties can be found. The goal is to
mobilize private party resources to conduct cleanup up front, rather than using the Fund
1-11
-------
and recovering costs through litigation later. To obtain more PRP cleanups, EPA will
increase the use of enforcement and settlement authorities, leverage the Fund, and
improve case support.
For example, EPA will increase the issuance of administrative orders to compel
PRPs to do the work that meet human health and environmental goals. EPA will improve
the collection and exchange of information and enforce information requests as well as
increase resources and provide incentives for the Regions to use settlement tools that
encourage PRPs to participate in the settlement process. In addition, EPA will increase
the ability to shift funds among sites to achieve maximum leverage to use the Fund to
establish a credible threat that if negotiations fail the Fund will be used in selected cases
to finance cleanup with cost-recovery and possible treble damages to follow. Finally, the
Agency will ensure the proper skill mix and consider organizational adjustments to improve
case support for enforcement actions. (See Chapter II "Strengthening Enforcement and
Maximizing Responsible Party Work at Superfund Sites").
Develop and Use New Technologies for More Effective Cleanup
EPA will use permanent technologies to achieve final site goals, to the maximum
extent practicable. EPA will protect human health and the environment from long-term
potential hazards and will use permanent technologies where they are proven, cost-
effective, and available to achieve final site goals that protect human health and the
environment. In many cases, attaining final site goals that involve the use of permanent
technologies may be accomplished in the near term (e.g., at sites where surface
contamination may be biologically treated or incinerated). In other cases, attaining final
site goals will take more time.
Although EPA has increased the use of treatment technologies at sites, the current
range of available treatment technologies does not meet the demand for such technologies.
To address this demand, EPA will conduct more research and development of innovative
treatment technologies to enhance its ability to meet the statutory preference for treatment
and use of permanent technologies. In particular, EPA will expand the research,
development and demonstration of new technologies; evaluate existing and emerging
technologies; and encourage the use of emerging technologies through an aggressive
technical assistance program for Regional project managers. EPA will also make every
effort to eliminate internal barriers to the demonstration and use of innovative
technologies. (See Chapter IV "Bringing Innovative Technology to Bear on Pollution at
Superfund Sites to Strengthen Remedy Selection").
1-12
-------
Improve Efficiency of Program Operations
EPA will improve the efficiency of program operations for achieving "safer" and
"cleaner" sites by integrating the Fund and enforcement aspects of the program. A "One
Superfund Program" concept means that all sites would be treated the same. It means
using one site manager for both Fund and enforcement activities and using all available
mechanisms for encouraging PRPs to do the work. EPA will also better define the roles
of the Regional project managers and provide them with additional technical and
administrative support. (See Chapter II "Strengthening Enforcement and Maximizing
Responsible Party Work at Superfund Sites" and Chapter III "Accelerating and Improving
Remedial Action").
Encourage Full Participation by Communities
All phases of the program will benefit from greater public participation. EPA will
increase the role of citizens in Superfund decisions, especially at PRP sites; encourage
consistent communication with citizens; and reform the Technical Assistance Grants
program to eliminate barriers to its use. EPA will also advocate an increased national
effort to inform the public on Superfund's progress; involve the public in policy and
implementation issues; and increase efforts to measure program progress towards
environmental results (See Chapter V "An Aggressive Program of Community
Involvement" and Chapter VII "Accounting for Achievement: Communicating Progress to
the Public").
Foster Cooperation With State Agencies. Natural Resource Trustees, and ATSDR
EPA recognizes that State agencies and natural resource trustees, including the
Forest Service, the Fish and Wildlife Service, the National Park Service, and the National
Oceanic and Atmospheric Administration, have a significant role in the Superfund
program. EPA will work with State agencies, natural resource trustees and ATSDR to
ensure an effective and cooperative relationship.
WHAT DOES THE STRATEGY DO FOR THE SUPERFUND PROGRAM
AND HOW WILL IT HELP EPA MEET THE PUBLIC'S EXPECTATIONS?
The task group believes that the development of a clear strategy for the Superfund
program is essential because it provides the operating context necessary to help guide EPA
in improving our implementation of the program. The strategy is also equally essential
because it contains EPA's message to the public on how EPA will attempt to be
responsive to their concerns and expectations for the program.
1-13
-------
The strategy does not propose that EPA make major structural changes to the
existing Superfund program. The task group believes that making such changes would
be disruptive, counterproductive, and unnecessary. The basic structure of the Superfund
program is sound and should be retained. However, the task group strongly believes that
EPA has important choices to make about where to place the emphasis of the program
and that substantial improvements in implementation which reflect the overall goals of the
program can and should be made now. For this reason, the strategy has been designed
to shift the emphasis of the program in the following key respects:
* EPA will focus more intently on setting and managing environmental
priorities, with a special emphasis on taking early actions. This is
demonstrated by our commitment to controlling acute problems first
then initiating high priority longer-term response actions, typically in
stages of cleanup, until health and environmental standards are met.
* EPA will make greater use of enforcement authorities to compel
private parties to conduct the cleanup up-front in lieu of Fund-
financed action and cost-recovery through litigation later.
There are other key advantages to our approach for ensuring better Superfund
cleanups. For example, the strategy renews EPA's commitment to monitoring and
maintaining site remedies to ensure safety over the long-term, and to encouraging more
effective public participation. We also optimize the use of not just one, but a range of
technologies and allow for the cost-effective use of different technologies. Finally, the
strategy recognizes that cleanups are multi-year, multi-stage activities.
The central theme or message of the strategy is that EPA is attempting to be
responsive to the public's concerns and to meet the public's expectations. EPA
acknowledges this as an important challenge, in light of competing expectations and
significant resource and technological constraints. The task group has made a concerted
effort to be candid about what we believe EPA can realistically achieve and how we
believe EPA should achieve it.
Although EPA cannot meet every expectation nor reconcile every competing
expectation, EPA can do a better job of responding to the public's concerns. For
example, we believe that EPA can more fully meet the public's expectation that EPA
conduct work which shows measurable and visible environmental results. EPA can do
this by taking early actions and by taking actions in stages. In addition, the task group
believes that EPA can better meet the public's expectation for meaningful public
participation. EPA can do this by creating opportunities at every site for early and
continuous citizen involvement throughout the cleanup process, and by removing barriers
to the use of technical assistance grants.
1-14
-------
These and other expectations can be addressed more fully even in light of resource
and technological constraints. EPA can do this by better identifying and addressing our
environmental priorities, and by fostering the development and use of innovative
technologies.
The task group also believes that although competing expectations do add to the
complexity of the program, EPA can do a better job of striking a balance between them.
In fact, the strategy was specifically designed to do this. For example, we attempt to
reconcile the competing expectation between the desire to achieve complete cleanup with
the need to conduct cleanup in stages. The strategy sets complete cleanup as EPA's long-
term goal for each site and uses cleanup in stages as the means to achieve this long-term
goal.
The strategy also attempts to reconcile the competing expectation that EPA use
the Fund to achieve cleanups faster with the need to mobilize PRP resources through an
"enforcement-first" approach. We will orient the program toward greater use of
enforcement authorities to mobilize PRP resources but also allow for Fund-financed
actions where emergencies exist, where there are no viable PRPs, or where it is
appropriate to use the Fund to establish a credible threat that EPA will act if negotiations
fail.
As a final example, the strategy attempts to reconcile the competing expectation
that EPA use permanent technologies with the limitation imposed on us by the inadequate
range of good technologies. EPA will use permanent technologies when they are proven,
cost-effective, and available. But we will also improve our ability to make better future
use of such technologies by removing administrative barriers to their use as well as by
renewing EPA's commitment to fostering research and development of innovative
technologies.
In summary, the strategy is not a magic device that will instantly allow EPA to fully
meet all of the public's expectations. Nor will it automatically result in the implementation
of a perfect Superfund program. Nevertheless, the strategy does take many of the public's
expectations into account, does strike a balance among key competing expectations, does
address important resource and technological constraints, and does provide a clear
framework to guide the implementation of the program. Taken together, the task group
believes that by using this strategy, EPA and the public will see significant improvements
not only in the implementation of the program but in added benefits to human health and
environment that the program was created to address. What EPA seeks now is public
acceptance of this approach and room to operate in a supportive environment.
1-15
-------
II. STRENGTHENING ENFORCEMENT AND MAXIMIZING
RESPONSIBLE PARTY WORK AT SUPERFUND SITES
-------
CHAPTER II
STRENGTHENING ENFORCEMENT AND MAXIMIZING RESPONSIBLE
PARTY WORK AT SUPERFUND SITES
This chapter is the report of the task group on Enforcement and Maximizing PRP
Work. This report reflects a review of a variety of recent studies on the Superfund
program, as well as ongoing management initiatives involving EPA and the Department of
Justice, such as the Superfund Settlement Incentives and Disincentives Workgroup and the
Superfund Enforcement Management Issues Workgroup. It also reflects discussions with
individuals and groups involved in the Superfund program, including EPA Regional and
Headquarters personnel, representatives of the Department of Justice, Congressional staff,
as well as industry, citizen and environmental groups.
The conclusions in this chapter are those of the task group and do not necessarily
reflect the positions of everyone who participated in its development. The task group did
not attempt to respond specifically to all of the comments in individual studies, nor to
attribute particular positions to particular groups. The chapter has been drafted without
reference to specific negotiations or cases, because of the confidential nature of much of
that material.
This chapter does not attempt to comprehensively address each aspect of the
Superfund enforcement program. Certain topics, such as administrative records and State
relationships, are not covered. Rather, this report is an attempt to describe the overall
direction of the program, to make a few specific recommendations for midcourse
corrections, and to address issues of particular concern that have been raised in discussions
and reports. This report was requested by top Agency management, but it is also intended
to respond to the recent critiques of the Superfund enforcement program, to the issues
raised by the many constituencies interested in Superfund, and to the concerns of the
Federal employees working in the program.
This chapter sets out 12 recommendations to strengthen enforcement and increase
private party response. These recommendations involve increased use of enforcement and
settlement authorities, better integration of enforcement and Fund-financed cleanup
activities, improved case management and case support, stronger responsible party
oversight and cost recovery, and better intergovernmental coordination. The chapter
consists of an overview of the recommendations, and more detailed discussions of
substantive issues.
2-1
-------
SUMMARY
The basic aim of the Superfund program is to place responsibility for cleanup of
hazardous waste disposal sites on those who generated the wastes, and those who owned
or operated the sites. If the government conducts the cleanup using money from the Fund,
that purpose can be accomplished through cost recovery. The statute also provides
enforcement tools that the government can use to directly compel responsible parties to
conduct the cleanup. Where responsible parties are willing to assume that responsibility
on a cooperative basis, settlement agreements provide another means to achieve cleanups
that meet human health and environmental goals. Whichever approach is followed, the
objective of Superfund enforcement is to reach the goal of placing ultimate responsibility
for the costs of cleaning up Superfund sites on those who contributed to the problem.
This objective is consistent with the policy of other Federally administered environmental
statutes that those who are responsible for pollution should bear the burden of cleaning
it up.
The following discussion summarizes the general approach recommended for the
Superfund enforcement program. This summary briefly describes the main
recommendations, and refers to the section of the report where the issues are discussed
in greater detail.
EPA will:
* increase its use of section 106 unilateral administrative orders
to compel private party response. (See ENFORCEMENT FOR
REMEDIAL DESIGN AND CONSTRUCTION)
* provide resources, remove administrative barriers, and create
incentives for use of the settlement tools of CERCLA (e.g.,
mixed funding, de minimis settlements). (See SETTLEMENT
AUTHORITIES)
* integrate the Fund-financed response and enforcement
approaches under Superfund. Private party response is the
preferred approach for the majority of Superfund sites. (See
FUND ENFORCEMENT RELATIONSHIP)
2-2
-------
* establish an integrated timeline for both enforcement and
response action. The timeline will include deadlines for
completing negotiations and following up with enforcement or
response action. (See FUND ENFORCEMENT
RELATIONSHIP)
* ensure the proper personnel skill mix and consider
organizational adjustments to improve case support for
enforcement actions. (See CASE SUPPORT)
* ensure effective information collection, information exchange,
and enforcement of information requests to encourage
Potentially Responsible Party (PRP) participation in the
settlement process. (See ENFORCEMENT OF
INFORMATION REQUESTS AND INFORMATION
EXCHANGE WITH PRPS)
* strengthen its efforts to effectively oversee private party
remedial investigations and feasibility studies (RI/FS). (See
OVERSIGHT OF PRIVATE PARTY RI/FS)
* retain the maximum amount of leverage to use the Fund where
negotiations are unsuccessful. (See FUNDING
FLEXIBILITY)
* establish realistic expectations for cost recovery, develop a
removal cost recovery strategy, and conduct a rulemaking to
strengthen the ability to recover costs. (See COST
RECOVERY)
* with the Department of Justice, establish a case management
planning process to expedite enforcement and settlement
decision making. (See INTERGOVERNMENTAL
COORDINATION)
2-3
-------
ENFORCEMENT FOR REMEDIAL DESIGN AND CONSTRUCTION
FINDING: Unilateral administrative orders under Section 106 of CERCLA are an incentive
for settlement, serve as a useful preliminary to judicial enforcement, and establish a case for
tieble damages when EPA proceeds with Fund-financed response. They can be used to
compel response actions if negotiations do not result in settlement They are also useful in
situations where EPA has reached a partial settlement with some but not all of the PRPs at
a site. Orders can be issued to compel recalcitrants to conduct certain discrete phases of the
work at a site, or to cooperate with the settling parties conducting the cleanup. Additional
judicial enforcement actions against parties who fail to comply with administrative orders will
also make the threat of enforcement more credible.
DISCUSSION: Section 106 of CERCLA authorizes administrative orders or judicial action
to compel responsible parties to conduct response actions where there is an imminent and
substantial endangerment to public health, welfare or the environment. There have been
criticisms in recent years that the Federal government has i ot made adequate use of these
authorities. This section of the review discusses where and how such enforcement actions
may be useful, actions to take in the event of non-compliance with orders, and steps that
might be taken to increase the number of section 106 enforcement actions.
It is essential o distinguish administrative enforcement under section 106 from
judicial enforcement under section 106, because these enforcement tools have different
inpacts on PRPs and different resource implications for the Federal government. EPA
is authorized to issue administrative orders to PRPs to compel them to conduct response
actions. If PRPs fail to comply with these orders, EPA may refer the case to the
Department of Justice (DOJ) for judicial enforcement of the order, or proceed with Fund-
financed response. If PRPs fail to comply with an order, and EPA proceeds with Fund-
financed response, EPA can pursue treble damages under section 107 of CERCLA.
Section 107 authorizes EPA to collect up to three times the cost incurred by the Fund if
responsible parties fail to comply with an order. Judicial enforcement may involve an
action in court to compel responsible parties to conduct a response action, action in court
to enforce compliance with an administrative order, or action to collect penalties for
failure to comply with an order.
2-4
-------
Role of Section 106 Orders for Remedial Action
The most important role of section 106 orders is to create an enforcement
threshold for the program and thereby encourage voluntary private party participation in
the settlement process. In many cases, because PRPs have not necessarily violated any
statutes, a punitive orientation is not always appropriate for CERCLA enforcement. The
primary purpose of the liability scheme is to force cleanup, and enforcement measures will
be brought to bear against parties who fail to settle, or who violate administrative orders
or judicial decrees.
The liability of PRPs under CERCLA is joint and several, except where PRPs can
demonstrate that the harm at the site is divisible. The potential for joint and several
liability is a valuable impetus for PRPs to reach the agreements among themselves and
with the government that are necessary for successful negotiations. Unilateral judicial
enforcement under section 106 has not always been the quickest way of assuring that
cleanup starts for any given site, but a certain threshold number of enforcement actions
is necessary to establish this authority as a credible threat against PRPs who fail to
participate in the settlement process.
Section 106 administrative orders can be a spur to private party cleanup in several
respects. They can be useful to compel response actions if negotiations do not result in
settlement. They are also useful in situations where EPA has reached a partial settlement
with some but not all of the PRPs at a site. Orders can be issued to recalcitrant parties
to compel them to conduct a discrete portion of the work at a site. These are sometimes
called "carve-out" orders. Orders can also direct the recalcitrant parties to cooperate with
the settling parties who are conducting the cleanup.
In these situations, orders serve as an incentive for settlement. They encourage
recalcitrants to pay or participate with the settlers, and help to demonstrate the economic
consequences of noncompliance to corporate management.
In some cases, the government settles with some PRPs, and takes enforcement
action against others. In these situations, it is particularly important that the settlement
terms and enforcement actions encourage participation and discourage recalcitrance. The
same companies and the same lawyers are involved in many Superfund actions and
settlement and enforcement actions are carefully examined for their precedential value for
subsequent cases. The 1988 EPA-DOJ conference on Superfund Settlements and
Disincentives included a number of specific and detailed recommendations for structuring
settlements and enforcement actions to encourage settlement and discourage recalcitrance.
2-5
-------
Some PRPs have objected that issuance of an administrative order is a disruption
to PRPs, rather than an impetus for settlement. They argue that PRPs subject to orders,
or the threat of orders, spend their time figuring out how to respond to the statements in
the order, rather than working with the Agency to reach settlement. In other situations,
orders have been sought by PRPs to help convince corporate management and insurers of
the seriousness of the enforcement action. It is impossible to predict, in any given
situation, whether PRPs will react by moving more quickly to reach settlement, or react by
moving to defend themselves against the order.
The task group encountered many differing and strongly held views concerning the
effectiveness of administrative orders in the Superfund enforcement process. Our view is
that routine and predictable issuance of administrative orders in the CERCLA
enforcement process will help to bring negotiations to a successful conclusion. The
prospect of treble damages or judicial enforcement for PRPs who do not comply with
orders is an additional powerful impetus for settlement.
RECOMMENDATION: EPA will increase its use of unilateral administrative orders,
particularly for remedial design and remedial action. Our objective will be to either
rapidly achieve enforceable agreements by PRPs to carry out cleanups or, where such
agreements are not reached, to order PRPs to carry out cleanups at every NFL site where
responsible parties can be found. EPA will routinely issue orders to PRPs who are legally
liable and financially viable if settlement is not reached after completion of negotiations.
Orders will therefore be routinely issued before a case is referred to the Department of
Justice for judicial action, or before the Fund is used for remedial design or construction.
Where the Fund is used, EPA expects to pursue cost recovery action under section 107,
and to seek treble damages where appropriate.
Where the government has reached a partial settlement with cooperating PRPs, it will
take prompt enforcement action against viable and liable recalcitrants who have not
participated in settlements. This action may be an administrative order under section
106, judicial action under section 106, or an action under section 107 to recover costs
incurred by the government. Such action should generally be commenced within 90 days
of entering the consent decree before the court In both the structure of the settlement
terms and in its pursuit of enforcement, the government will clearly establish incentives
to encourage these PRPs who are willing to assume responsibilities and disincentives for
those who will not.
2-6
-------
Response to Non-Compliance with Orders
DISCUSSION: If PRPs do not settle and do not comply with orders, the government
can proceed with Fund-financed response or judicial enforcement. The task group
considered ways to achieve the best balance between these approaches. Commenters
generally agreed that section 106 judicial enforcement is not generally the speediest
method for assuring cleanup at any given site, but most commenters also agreed that a
certain number of judicial enforcement actions are needed to maintain the threat of
vigorous enforcement to the PRP community. Different methods were considered for
increasing the number of judicial actions.
Increased numbers of orders may lead to increased numbers of judicial actions to
enforce them. By routinely issuing administrative orders when settlement is not reached
within a reasonable time, EPA may be able to increase the number of judicial referrals for
section 106 actions. In addition, there is no guarantee that Fund resources will always be
available in situations where PRPs do not comply with orders. When Fund resources are
available, cost recovery with the prospect of treble damages is also a legitimate
enforcement approach.
The discussions during the Management Review uncovered little support for goals,
quotas, or targets for the use of unilateral section 106 judicial enforcement. Past
"initiatives" to increase the number of section 106 judicial actions through review of
candidate sites to identify prospects for referral have not been very successful.
There were also suggestions that Headquarters increase its control over Fund-
financed remedial action to encourage enforcement action. According to this view, Fund
financed response may become the path of least resistance and be used too frequently
instead of judicial enforcement because of the desire to move promptly ahead with
cleanup. Restrictions on Fund-financed response were suggested to assure that unilateral
enforcement authorities are given proper consideration. Specific proposals included the
following:
* Use of the Fund for remedial action should be contingent on
prior issuance of administrative orders, or justification of a
decision not to issue administrative orders.
* If the order is not complied with, Headquarters must approve
or be consulted on any decision to proceed with Fund-financed
response rather than a judicial referral.
2-7
-------
RECOMMENDATION: Before Fund-financed response can proceed at a site, a Region
must issue an administrative order, or provide a justification for its decision not to issue
an order. If PRPs do not comply with the order, the Regions should have the flexibility
to determine whether to proceed with Fund-financed response or judicial enforcement
action to compel compliance and exact penalties. Regions will consult with Headquarters
where PRPs do not comply with an administrative order. In determining whether to
enforce the order, EPA will consider the importance of maintaining section 106 judicial
enforcement as a credible threat to PRPs, as well as the availability of funds for Agency
response.
Litigation Support
DISCUSSION: The task group considered different approaches for improving support of
section 106 litigation. Judicial actions are time consuming and resource-intensive, and
courts rather than EPA control the pace of activity.
In the future, judicial actions may become somewhat less demanding. Remedy
decisions and determinations of imminent and substantial endangerment can be defended
on the basis of an administrative record, rather than by expert witnesses.
Nonetheless, an increase in the number of unilateral judicial enforcement actions
will increase demands on Agency staff, who will need to be responsive to schedules and
demands of courts, as well as accountable for ongoing activities at other sites. These
multiple demands can be extraordinarily disruptive to other activities. EPA staff
sometimes view themselves as under the control of the courts or DOJ attorneys. National
contract funds, and DOJ expert witness funds account for a significant amount of case
support, but some support activities can be performed only by Agency staff.
EPA has considered a number of mechanisms for assuring adequate resources to
support judicial action. Headquarters could establish a litigation budget set aside of
dollars and staff, over and above the Region's regular budget, to Regions which take on
the additional litigation workload. Headquarters Support Teams and Cost Recovery
Documentation Teams could be established and trained to provide "hands-on" assistance
at critical junctures in case preparation. Creation of additional case support capability, as
discussed under Case Support, should also help to provide additional qualified staff for
enforcement support. EPA might also be more willing to adjust internal accountability
commitments for other site activities, to the extent that judicial enforcement pulls staff
away from other activities. EPA should be prepared to experiment with all of these
mechanisms where necessary.
2-8
-------
SETTLEMENT AUTHORITIES
FINDING: The SARA amendments added several settlement provisions, including special
notice, non-binding allocations of responsibility (NBARs), mixed funding, and de minimis
settlements. These provisions were in part a response to complaints that the CERCLA liability
scheme was unduly harsh. Today, it has become apparent that EPA has not made widespread
use of these settlement tools, despite the Agency's good record in obtaining settlements.
DISCUSSION: The task group considered the need for changes to increase the use of
these settlement tools without compromising environmental goals. The section 122
settlement authorities are one set of incentives, along with enforcement authorities and the
threat of Fund-financed response, for obtaining voluntary PRP response. Whether or not
they are needed at any given site, their use contributes to a national perception of
efficiency and fairness. This section will focus in particular on mixed funding under section
122(b), where the Federal government pays for a share of a response action primarily
conducted or paid for by PRPs, and de minimis settlements under section 122(g), which
are separate settlements with parties who have contributed only small amounts of
hazardous substances to a site.
The Federal government has had an encouraging record in reaching settlements
since enactment of SARA, as measured by number of response actions and amount of
private party resources committed to response action. As of mid-April 1989, EPA had
reached 66 settlements for remedial action with an estimated value of almost 900 million
dollars.
EPA has made substantial progress in reaching settlements, but has made uneven
use of these settlement tools. Some are frequently used. For example, special notice and
negotiation moratoriums are provided in the majority of cases, the number of private party
RI/FS has increased significantly, and information release to PRPs has improved.
Nevertheless, some Agency critics expect more mixed funding, more allocations, or more
de minimis settlements. The limited use of these settlement tools can be attributed in part
to both attitudes and bureaucratic obstacles.
EPA staff and DOJ attorneys are sometimes reluctant to consider the use of these
authorities. The CERCLA settlement tools are seen in some quarters as inconsistent with
the statutory scheme of joint and several liability. The lingering effects of past allegations
of "sweetheart deals" also discourages consideration of the possibility of compromise.
If EPA is to increase its use of the settlement authorities in the SARA amendments, EPA
must also reaffirm its commitment to achieving the public health and environmental goals
that are set forth in the statute.
2-9
-------
The attitude that these settlement tools are inconsistent with the liability scheme of
the statute appears to be diminishing, but pragmatic reasons for avoiding mixed funding
and de minimis settlements remain. Some believe that these provisions contribute to
delay, are difficult to implement and are not necessary for reaching settlement or for
cleaning up sites as quickly as possible. They are also concerned that these settlement
tools are resource-intensive, and divert resources from other sites. At times, decisions on
whether it is appropriate to use mixed funding or de minimis settlements have been
delayed, particularly where the decision would set an important precedent.
A number of factors discourage the use of mixed funding. Requests for mixed
funding are frequently made by PRPs, and are often without merit. Hence, it has been
difficult to predict and thus budget for potential mixed funding situations. Some Federal
procurement requirements are generally imposed when Fund money is expended in a
mixed funding arrangement. Headquarters preparation of preauthorization decision
documents have led to delays. In some situations, the government is willing to forego past
cost as an incentive for settlement, where PRPs are willing to conduct the complete
remedial action. This is viewed as a form of "surrogate mixed funding" that avoids the
logistical difficulties involved in actually authorizing PRPs to make a claim against the
Fund.
There are similar impediments to de minimis settlements. For example, money
obtained from de minimis settlors may have to be deposited in the Fund rather than
retained by EPA for site cleanup. Nonetheless, de minimis settlements can be particularly
useful at complex and difficult sites with dozens or hundreds of PRPs. Because of the
time and effort that such sites take, however, settlements with de minimis parties are often
seen as burdensome and inefficient, even if the settlement might have been impossible to
reach without use of the de minimis tools.
EPA has decentralized its settlement process in order to streamline decision-making.
In doing so, EPA has lost some ability to assure that decisions at the Regional level are
fully consistent with national policy direction. In the minds of PRPs, this reluctance to use
these settlement authorities is sometimes seen as an unwillingness to make sufficient effort
to comply with the statute or to facilitate settlement.
These problems can be mitigated by better coordination, and more resources, as
discussed elsewhere. In addition, as EPA gets more experience in working with these
authorities, EPA is displaying a greater willingness to experiment with new approaches to
achieve settlements that do not compromise environmental goals. Nevertheless, it is
essential to develop workable incentives for the case attorney and Regional Project
Manager (RPM) so they will be willing to take on these issues. EPA should also consider
management reforms to simplify the use of these authorities.
2-10
-------
A variety of suggestions have surfaced. They include:
* arrangements for a formal appeal by PRPs to Headquarters
if they object to Regional decisions;
* accountability commitments for use of these settlement tools;
* "circuit riders" from Headquarters who can work with the
Regions in the use of these authorities;
* further education in the need and usefulness of these provisions
("jawboning");
* resource set asides, or supplemental resources for Regions that
use these authorities;
* Headquarters reviews, to identify appropriate candidate cases;
and
* improved and expedited procedures for Headquarters review
of use of these authorities.
The task group's discussions uncovered little support for accountability
commitments, or for a fundamental change in the current arrangements for decentralized
decision making. There was also a widespread desire to avoid disruptive Headquarters
initiatives. Improved education and training, increased resources, and simplification of the
review process were generally accepted. Concrete incentives are the best approach for
changing the belief that use of these authorities is unnecessary, inappropriate, or unduly
burdensome.
There was a general belief that success in the program should not be measured by
the use of any particular enforcement or settlement tool. Use of the settlement tools is
essential for demonstrating that the settlement process can proceed fairly, just as use
of the enforcement tools is essential to demonstrate that recalcitrants cannot avoid the
Superfund process. Nevertheless, these authorities are means, and not ends in themselves.
Ultimately, the best measure of success in the enforcement program is the timely
commitment of PRP resources for response action that meets the requirements of
the statute.
2-11
-------
RECOMMENDATION: EPA will take the following steps to encourage the use of the
settlement tools in the Superfund statute without compromising environmental goals:
First, Headquarters will provide additional assistance and specialized training in the use
of these authorities. The assistance should emphasize information transfer among the
Regions based on their actual experiences in using or attempting to use these tools.
Second, EPA will develop an incentive system that provides additional support for Regions
to use these settlement tools. For example, when a Region indicates that a de minimis
settlement is appropriate, additional support in FTE and contract dollars might be
provided. Specific amounts could be based on past experience and workload model data.
Third, EPA will establish specific goals for the use of de minimis and mixed funding
authorities. EPA should determine if it is possible to set up special accounts in the
Regions to cover anticipated mixed funding needs and to allow the Regions to retain de
minimis cash-out dollars for the site in which the settlement is reached.
FUND-ENFORCEMENT RELATIONSHIP
Integrating Fund and Enforcement Activities
FINDING: Over the course of the Superfund program, EPA has followed a variety of
different approaches for coordinating enforcement activities with Fund-financed cleanup work.
Sometimes Fund-financed work took precedence C'shovels first, lawyers later"). Other times,
potentially responsible parties were given opportunities to conduct each phase of the response
action. At still other times, sites were classified, with some designated for enforcement and
others for Fund-financed response. This fluctuation among approaches has been
extraordinarily disruptive.
DISCUSSION: The task group has tried to identify a more consistent approach for
coordinating site-related work within the program. The intent of the Management review
is to arrive at midcourse corrections, and the task group did not consider proposals
that would completely ignore major authorities under the current law, such as a pure
enforcement approach that does not allow for Fund-financed response, or a pure public
works approach.
2-12
-------
There is strong support among the Regions and States for increased Fund-
enforcement integration. This has been called the "One Superfund Program" concept.
The approach is to seek responsible party commitments in the first instance, and spend
money when responsible parties are unwilling or unable to commit to cleanup.
Under this approach, Superfund sites are not classified into Fund lead and
enforcement lead, but are instead all managed the same way. One site manager, familiar
with both response and enforcement activities, would be responsible for the sites all the
way through the process whether the PRPs or EPA conducted the response. The site
manager would be assisted by support groups with different skill mixes through the
integrated cleanup/enforcement process. These groups would be called on as needed to
support the site manager. This integrated response and enforcement approach requires
a strong matrix management operation. Such an operation is discussed later in this
chapter under Case Support.
EPA's current site classification process is not entirely consistent with an integrated
program approach. Some opportunities for negotiations with PRPs are provided at
virtually every site. However, sites are still frequently classified into Fund or enforcement
lead, and remedial design/remedial action (RD/RA) funding is designated only for certain
sites. Enforcement lead sites tend to be those where PRPs will conduct the RI/FS. In
some situations, the classification process encourages delays at enforcement lead sites,
because resources are not available to threaten PRPs with Fund-financed response. With
the publication of this report, EPA is moving to abolish its current site classification
process and not designate particular sites for Fund use unless a thorough PRP search
shows that no financially viable PRPs exist.
Of course, specific amounts needed for Fund-financed response must be identified
in order to prepare a budget for EPA and Congress. This process of identifying funding
needs should not have the effect of limiting negotiations or enforcement at particular sites,
nor should it limit the Agency's ability to threaten Fund-financed response at other
sites.
Given the fact that the remedial pipeline is filling up fast and funds are becoming
tight, the "One Superfund Program - Enforcement First" approach has received strong
support from the Regions. Several Regions have formally reorganized to implement the
concept and others are moving in that direction.
For the "One Superfund Program" approach to work, the Regions must be given
flexibility to shift funds among sites, and to move quickly between enforcement activities
and response activities where necessary. This issue is addressed under Funding Flexibility.
2-13
-------
RECOMMENDATION: EPA will establish an integrated enforcement and response
program. EPA will encourage or compel PRPs to conduct the response action at all sites
with viable PRPs before using the Fund, except in emergencies.
Integrated Timeline for Enforcement and Response Action
FINDING: A process involving both enforcement and response activities at the vast majority
of sites is complex and susceptible to delays. An "enforcement-first" process is particularly
vulnerable to delays if negotiation deadlines are not established, or if they are routinely allowed
to slip. Negotiations tend to be more effective where PRPs understand that EPA will cut off
negotiations if they fail to settle before the deadline.
DISCUSSION: EPA has established timeframes for accomplishing particular steps of the
enforcement and cleanup process. For example, there are negotiation timeframes derived
from the provisions of section 122 of CERCLA, and cleanup timeframes derived in part
from the statutory goals in section 116. Some individual Regions have timeframes that
integrate both enforcement and response activities.
If EPA is to successfully integrate the response and enforcement programs, EPA
should establish a single management system that organizes the work and defines when the
work can realistically be completed. Routine issuance of orders may add time to the
process and delay Fund-financed response in situations where orders are not complied
with. An integrated timeline for enforcement and response action will therefore be
valuable for minimizing delays and uncertainties in predicting and planning for Fund
financed activity. Key steps include:
* Commencing PRP searches at the time that a preliminary
assessment is initiated;
* Starting efforts to build liability cases and compile
administrative records;
* Issuing information requests and special and general notice
letters;
* Initiating negotiations for RI/FS and for RD/RA, where legally
liable and financially viable PRPs exist;
* Adhering to negotiation deadlines to push PRP settlements and
to avoid delays in the remedial pipeline;
2-14
-------
Routinely issuing administrative orders to legally liable and
financially viable PRPs if settlements are not reached;
Referring a case to the Department of Justice or using the
Fund to clean up the site if responsible parties do not comply
with the order; and
Lodging and entering a consent decree if settlement is reached.
RECOMMENDATION: EPA will establish a single integrated timeline for both
enforcement and Fund-financed activities. The timeline will include deadlines for
completing negotiations and following up with enforcement or response action. The
timeline will also reflect program goals for completing phases of the response action, and
serve as a benchmark for assessing progress at sites. This timeline will also be the basis
of the case management planning process discussed later in this chapter under
Intergovernmental Coordination.
CASE SUPPORT
FINDING: Better case management and case support is necessary to implement the "One
Superfund Program - Enforcement First" concept, to assure adequate PRP searches and
maximum PRP involvement at all Superfund sites, and to support additional enforcement
actions. An approach which has proven effective in several Regions is a matrix management
system based on a single site manager, familiar with both enforcement and response activities,
surrounded by support units that he/she can call on as necessary at different stages of the
enforcement and response process. These support units must be held completely accountable
for meeting deadlines at the site. No specific form of organization is mandated but it is
essential to provide the proper skill mix for enforcement support, and to train and retain skilled
enforcement staff.
DISCUSSION: Case support units should include the necessary mix of skills required to
complete specific support tasks. EPA needs to devote special attention to making the all-
important initial investment of effort and resources needed to get the case management
process off to a good start. In light of Superfund's complexity, it is particularly desirable
to use highly skilled government enforcement staff, rather than to rely overwhelmingly on
contractor support. The types of units and skill mixes needed include:
2-15
-------
Legal Units: Lawyers from the Office of Regional Counsel to work with site managers
throughout the enforcement and response process.
PRP Search Units: Civil/private investigators to conduct timely and thorough PRP searches
and followup with information requests.
Administrative Record Units: Paralegals, records managers, or others to compile and
update the administrative record.
Contract Support Units: Contract specialists to relieve site managers of significant amounts
of administrative tracking and documentation required for proper site management.
Technical Support Units; Toxicologists, hydrogeologists, geologists, risk assessment experts,
to provide the necessary specialized technical experts for remedy and liability questions.
These individuals can be made available through special arrangements with the Office of
Research and Development, as well as through arrangements with participating
contractors.
Cost Recovery Units: Individuals qualified in administrative or financial fields, to build and
maintain the cost recovery documentation. The Upward Mobility Program has been
effectively used to fill many of these positions.
These units must be adequately staffed to avoid bottlenecks, and they must be
accountable for meeting deadlines for expeditious enforcement action. Where these units
are located or how they are organized in the Regions is not particularly important. Some
may be combined into general support units. For example, Contract Support and Cost
Recovery Units could be located in the Management Division. These units must be
adequately staffed to avoid bottlenecks, and they must be accountable for meeting
deadlines for expeditious enforcement action.
RECOMMENDATION: EPA must ensure a proper skill mix for case management and
support of enforcement actions. EPA will encourage the creation of specialized Regional
units for enforcement support activities, such as searching for responsible parties,
assessing their ability to pay and corporate relationships, coordinating information
exchange among PRPs, supporting cost recovery efforts, and developing administrative
records.
2-16
-------
ENFORCEMENT OF INFORMATION REQUESTS AND
INFORMATION EXCHANGE WITH PRPS
FINDING: Section 104(e) of CERCLA authorizes EPA to request information concerning
Superfund enforcement and response actions, and to take enforcement actions against persons
who fail to comply with these information requests. These information requests are valuable
for establishing PRP liability and for encouraging PRP participation in the settlement process.
Section 122(e) of CERCLA provides for EPA to release information to PRPs
concerning the other PRPs at the site, the nature of the wastes at the site, and, to the extent
such information is available, a volumetric ranking of the wastes by party. Despite the
importance of this information, PRPs have described EPA's information release as inconsistent
in timeliness and quality.
Enforcement of Information Requests
DISCUSSION: Section 104(e) letters are used extensively by EPA to gather Superfund
site information. These letters are typically issued before any response action is taken at
a site and may be supplemented through the cost recovery stage of a case. The
information is needed by EPA to identify PRPs, document their liability and obtain site-
specific information. Timely and accurate responses by PRPs to Agency information
requests are vital to the development of a comprehensive data base used by EPA during
settlement negotiations, enforcement actions and cost recovery lawsuits.
There is some data to suggest that EPA does not vigorously enforce its information
requests. Moreover, there are those who believe that EPA tends to build a case by
focusing on parties who respond to information requests, and fails to enforce against
parties who do not fully comply with these requests. If this is true, then EPA is sending
the wrong message.
Vigorous enforcement of information requests serves several purposes. First, it
allows EPA to obtain information that is useful for establishing liability cases, and helpful
as well to PRPs in generating acceptable settlement offers. Second, enforcement of
information requests provides an opportunity for the government to pursue recalcitrants
at an early stage. An early enforcement action encourages recalcitrants to participate in
negotiations. In addition, PRPs are more willing to settle when they are assured that
other parties are not escaping participation by simply ignoring Agency information
requests.
2-17
-------
RECOMMENDATION: EPA will develop specific goals and timelines to improve
enforcement of information requests. The Agency will provide for use of administrative
orders and judicial referrals to compel answers to information requests, and to secure
civil penalties or criminal sanctions where appropriate. The Agency will also provide for
increased use of its administrative subpoena authority under section 122(e)(3)(B).
Information Release
DISCUSSION: PRP's have maintained that EPA is inconsistent in its approach for
releasing information concerning other PRPs and the nature of wastes at a site. PRPs
need information to meaningfully participate in the settlement process and to develop
settlement offers. The information is also useful to enable PRPs to allocate costs among
themselves.
Two types of information concerning other parties are important to PRPs: the
compilation of general information indicating the relative share of various PRPs (the
"waste-in" list), and specific information that links particular parties to a site. The first can
be used to identify other PRPs and relative shares of the various parties. The second is
sometimes needed to convince corporate management of the company's own involvement
at the site.
EPA faces quite different problems in producing and releasing information
concerning liability. "Waste-in" lists require readily available information at the site, and
Agency resources to collect and compile it. In some situations, the information may be
evidentiary, and EPA may feel that release might compromise potential subsequent
enforcement action. Current Regional practice often is reciprocal in nature: EPA will
release information concerning liability to the PRPs when PRPs respond to EPA's
information requests.
In certain situations, EPA may choose to take a more active role in facilitating or
managing the allocation process among PRPs. This approach is more likely to be used in
situations where there is an extraordinarily large number of PRPs. Potential options for
facilitating allocations among PRPs include Agency funding of neutral parties to aid in
dispute resolution, use of nonbinding allocations of responsibility under section 122(e)(3),
and more extensive Agency development of information on volume and nature of wastes.
The purpose of information release is to facilitate settlement, and any of these approaches
may be appropriate, depending on the specific circumstances of the case.
At present, there is no comprehensive picture concerning information release.
Anecdotal information indicates that Agency performance has improved, but is uneven.
There is general agreement that early release of information can facilitate settlement.
2-18
-------
RECOMMENDATION: EPA will prepare a directive that emphasizes the importance of
releasing available information as soon as possible to facilitate settlements.
Improvements will require guidance, enhanced data bases and additional resources.
OVERSIGHT OF PRIVATE PARTY RI/FS
FINDING: Some commenters have criticized the Agency's policy of allowing private parties
to conduct RI/FSs, arguing that this practice results in cheaper, less protective remedies, and
that citizens groups have little opportunity for effective involvement in developing the RI/FSs.
These critics have suggested that EPA return to earlier policies of discouraging or prohibiting
private party RI/FS. There was broad consensus among EPA managers and staff that the
Agency needs to put more effort and resources into oversight of RI/FS performed by PRPs.
DISCUSSION: The Superfund law authorizes EPA to give PRPs the opportunity to
perform site work at various points in the remedial process, including the RI/FS. In the
interest of taking action at as many sites as possible and as an incentive for PRPs to take
on the much more expensive RD/RA phase, EPA has actively encouraged qualified PRPs
to conduct RI/FSs. PRPs are currently conducting 50 to 60 percent of the RI/FSs at
Superfund sites, and if this policy continues, the percentage of PRP lead activity is
expected to grow.
When PRPs take the lead on RI/FSs and other site work, the site is assigned to an
Agency Regional Project Manager (RPM) who is responsible for ensuring that PRPs follow
EPA regulations and policies and adhere to agreed-upon schedules. EPA employs
Technical Enforcement Support (TES) contractors for most of the day-to-day oversight.
Some commenters believe that oversight costs, particularly those of the third-party
contractors required by the statute, are too high. The TES contractors review workplans
and other major documents submitted by PRPs and observe PRPs (in most cases, the
contractors hired by PRPs) as they conduct site activities. In all cases, EPA selects the
actual site remedy and writes the Record of Decision (ROD).
2-19
-------
The task group did not independently evaluate PRP activities or work products
and has no direct evidence of widespread problems. However, interviews with Regional
managers and staff lead to the conclusion that it would be prudent for EPA to carefully
examine current approaches to oversight of PRP RI/FSs and make appropriate
adjustments where additional actions are called for.
It is clear that PRPs' general incentives and interests in performing site work are
different from those of EPA, communities, and States. According to nearly all Regional
managers and staff interviewed on this topic, many PRPs try to economize and propose
only the most minimal remedial action. Some variations exist, of course; this
characterization certainly does not apply to all PRPs. Nonetheless, EPA's basic approach
to oversight must first assume that PRPs will try to conduct RI/FSs geared to their
interests alone. EPA's credibility with the public and affected communities depends on
ensuring that PRP work on RI/FSs is timely, thorough, and does not compromise
environmental goals. Many responsible companies understand this simple fact, and have
found to be in their own best interest to move beyond minimalist approaches and to work
actively with communities and the government.
Regional managers and staff also expressed some concern about the current
effectiveness of Agency oversight of PRPs. Although it might be assumed that Fund-lead
sites, where EPA is directly in control, would make more demands on an RPM's time, the
opposite is usually true. One reason is that the contractor at the site reports to the PRP,
not to EPA. Therefore, after EPA reviews the contractor's document and recommends
changes, these changes are frequently negotiated with the PRP. As noted elsewhere in
this report, RPMs often have difficulty dealing effectively with PRP contractors on
technical issues. In many cases, their extensive workloads preclude attention to every site
at all times.
Some EPA staff and critics outside the Agency have concluded that PRPs should
not be allowed to conduct RI/FSs at all. They argue that EPA should conduct the RI/FSs
and then recover costs from PRPs. In some communities, citizens are especially suspicious
of work done by PRPs, and assume that EPA and the PRPs are together striving for
minimal remedies and costs.
But there are some good reasons for allowing private parties to conduct the RI/FS.
First, Congress directed EPA to provide qualified PRPs with an opportunity to perform
the RI/FS. Second, if the RI/FSs are done by EPA, the money needed for them will have
to be diverted from other activities. Third, PRPs will become more accustomed to dealing
with EPA during the course of the RI/FS, and subsequent settlements that do not
compromise environmental goals will be easier to reach. Finally, PRP conduct of the
RI/FS is an important incentive for PRPs to settle for theRD/RA. All of these reasons
are legitimate objectives, provided that the ultimate product—the remedy—protects human
2-20
-------
health and the environment. Hence, the task group endorses the continuation of PRP
RI/FS, with the proviso that the Agency needs to do a better job overseeing the process.
EPA has already begun some initiatives on PRP oversight, including an evaluation
of a sample of PRP RI/FSs to identify possible quality problems and the development of
guidance on PRP oversight. Proposals to improve EPA's current approach to PRP
oversight include requiring more deliverables from PRPs, making greater use of stipulated
penalties when performance is poor, using the Corps of Engineers to oversee PRP RI/FSs,
and assigning only experienced RPMs to PRP-lead sites. The task group did not evaluate
these proposals or suggest different approaches. In light of the increasing number of
PRP leads to be conducted in the coming months and the general concerns raised during
this study, however, the task group believes that EPA must act quickly to upgrade current
oversight practices and, in particular, involve citizens in this process.
RECOMMENDATION: The Agency will expand efforts to promote closer oversight of
private party RI/FS, recognizing that the level of oversight will vary depending on the
PRP's experience and willingness to assume accountability for their actions. Specific
steps should include reducing the workload of RPMs who oversee these studies. The report
of the task group on Community Relations has further recommendations concerning
citizen involvement in response actions conducted by responsible parties.
FUNDING FLEXIBILITY
FINDING: PRPs are more likely to agree to do the response work when the Region can
threaten them with Fund-financed response and subsequent cost recovery if they fail to settle.
The ability to move funds among sites within the Region makes this threat more credible.
Funds need not be available at every site, if there is sufficient flexibility to move funds among
sites.
But regional flexibility must also be balanced with national concerns. If funds for
remedial action become scarce, then a national mechanism will be needed for allocating
them. A national funding system is also useful in ensuring that money can be promptly spent
and not carried over to subsequent years. Regional flexibility may also be affected by
notification requirements that reflect Congressional interest in how money is spent.
DISCUSSION: An integrated program should entail greater flexibility in moving resources
among sites. Limits on "flexible funding" have been an issue in the Superfund program for
over a year. The task group has examined the degree of funding flexibility currently
2-21
-------
available. "Flexible funding" involves both the ability to move funds between categories of
activities, such as remedial design or PRP oversight, and the ability to move funds among
sites, when a settlement occurs at a site that is targeted for Fund-financed response.
Once a settlement is reached, it may be useful to shift resources originally targeted
for a particular phase of Fund-financed response, such as remedial design, to PRP
response activities, such as oversight. EPA has increased its flexibility to make such shifts.
Nonetheless, there are some congressional constraints on EPA's ability to move resources
among categories of site activity, such as cleanup and enforcement.
The threat of Fund-financed response is a well-recognized incentive for private
party response. The ability to move resources among sites makes this threat even more
credible. When a site targeted for Fund-financed response instead settles and private
parties pay for cleanup, Regions would generally like the flexibility to use this funding as
leverage for further PRP cleanups, or to pay for response action at other sites. Funding
need not be directly available at every site, but flexibility in moving funds to take
advantage of ripening opportunities makes this threat more credible. Funding cuts, of
course, make the threat less credible. Many feel that the enforcement program slowed
during CERCLA reauthorization because the credibility of the threat of Fund-financed
response was not as realistic as it had previously been.
The Regions currently have flexibility in moving design money among sites. The
ability to proceed with remedial design also constitutes a useful threat. There is also
general agreement that Headquarters has been responsive to Regional requests to move
resources among sites.
Problems with leveraging private party response by threatening use of the Fund will
increase, however, if overall funds available for remedial design and remedial action are
reduced. When settlements are reached, it may be necessary to shift resources to other
sites in other Regions based on determinations of national environmental priorities.
RECOMMENDATION: EPA should maximize Regional flexibility in shifting funds
among sites, consistent with Congressional constraints and notification requirements.
Fund scarcity is a recognized limitation on Regional flexibility. If additional resources
become available because of a settlement, Regions should have the opportunity to apply
these resources to other high-priority sites within that Region. To the extent practicable,
the Regions should also be able to move resources among categories of activities, such as
remedial design and PRP oversight, as long as accountability commitments and
notification requirements are met
2-22
-------
COST RECOVERY
This section addresses three closely related issues: the types of costs to be pursued,
the expectations concerning revenue to be returned to the Fund, and the efficiency of the
current process for documenting and recovering costs. Our view is that conflicting and
sometimes unrealistic expectations about revenues to be returned to the Fund have forced
the Federal government to adopt a process for cost recovery that includes some significant
inefficiencies. More realistic expectations for cost recovery should in fact help to maximize
the amount of private party revenue available for cleanup.
Types of Costs
FINDING: The Cost Recovery program serves a dual purpose for CERCLA enforcement.
It is intended to both recover revenues for the Fund and to encourage voluntary PRP cleanup
action by eliminating any incentive for PRPs to allow the government to do the work.
As the courts gradually resolve the fundamental questions of CERCLA liability, PRPs
have increasingly focused on the tactic of investigating the documentation supporting EPA's
cost recovery program. Some PRPs have also disputed whether certain types of costs, such as
the costs of general program administration by EPA, can be legitimately assigned to particular
sites.
Rulemaking can be used to identify the specific recoverable costs, the documentation
needed to prove EPA's case, and the documents that will be available to PRPs. A cost
recovery regulation should make the process more efficient and narrow the scope of potential
PRP challenges to the government's cost recovery actions. Enforcement resources can be used
more efficiently if issues of recoverability and cost documentation are litigated once in the
context of a regulation, rather than case by case in each individual cost recovery action.
DISCUSSION: PRPs are showing a growing propensity to challenge EPA's cost recovery
claims. For example, EPA claims for certain "indirect costs" are particularly controversial
with some PRPs. Indirect costs are the costs of administering the Superfund program not
directly attributable to response action at individual sites. Indirect costs may include
Superfund staff training, national program management, Superfund R&D, and preliminary
assessments and site investigation work at sites where no further action occurred.
2-23
-------
Section 107(a) of CERCLA establishes PRP liability for all costs of a removal or
remedial action incurred by EPA that are not inconsistent with the National Contingency
Plan (NCP). Although this language authorizes EPA to recover all response costs from
PRPs, some PRPs have questioned the legitimacy of characterizing certain "indirect"
expenditures as costs of response action. These PRP challenges become more serious as
the amount or proportion of indirect costs that EPA claims at a site becomes greater.
EPA has established an indirect cost methodology which can capture these costs
and make them subject to cost recovery. Through 1988, EPA had spent $2.6 billion under
the program. Of that total, $153 million was captured through the indirect cost
methodology, and hence is allocable for cost recovery. Approximately $950 million could
also be included in this category through a broader accounting interpretation of indirect
costs. But attempts to collect increased amounts of these indirect costs have involved a
number of problems in both negotiation and documentation.
PRPs frequently question the fairness of the costs not directly attributable to their
specific site. These costs are frequently the subject of extended bargaining in negotiations.
The ratio of indirect costs to direct costs has tended to be higher at smaller sites. The
ratio has been high enough in some instances that the issue has delayed or discouraged
PRP settlement. In addition, the various types of supporting documentation for these costs
have not always been easy to develop. There is a risk that diminishing returns will set in
if the government makes inordinate efforts to identify, document, and pursue the relatively
small portion of these indirect costs that are not integrally related to response action
at the site.
EPA must explicitly identify the types of expenditures that will be recovered as
indirect costs, and the methodology EPA will use to compute these costs and allocate
them among specific sites. This issue must be resolved in order to determine what EPA
can expect to recover, and to put PRPs on notice as to what types of costs they will be
liable for. Because of the controversy surrounding some of these indirect costs, the large
dollar value associated with them, and the difficulty surrounding their recovery, EPA
should use its rulemaking authority to develop a regulation to set out the rationale for
recovering these costs. The public and PRPs have a legitimate interest in understanding
the specific costs that EPA will pursue; rulemaking provides an opportunity to formally
solicit outside views.
In applying the statutory standard of demonstrating that costs are not inconsistent
with the NCP, the government may identify factors to be considered in determining
whether costs are appropriate for pursuit. These factors might include:
2-24
-------
-standard accounting practices;
-efficiency in collecting information;
-fairness of attributing costs to a particular site;
-legal p-ecedents for pursuit of costs.
The regulation will serve a number of other purposes in addition to identifying
specific types of costs to be recovered. For example, EPA is also receiving increasing
numbers of challenges to the documentation used to show that response costs were
incurred. In certain cases, monies EPA paid under a given contract may relate to work
performed at a number of diiferent sites, and disputes have arisen over which documents
properly establish EPA's claims at which sites. The regulation will help to establish the
type of documentation needed to establish a valid claim.
The regulation will simplify negotiations and free up legal resources for upfront
negotiations and enforcement that will mobilize additional PRP resources for site cleanup.
The regulation will also help EPA manage its caseload by limiting the number of issues
subject to litigation and discovery in the forthcoming cost recovery cases for large remedial
actions.
RECOMMENDATION: EPA will strengthen methods for identifying and documenting
costs. To support cost recovery efforts, EPA will initiate rulemaking to identify the types
of expenditures appropriate for cost recovery, documents sufficient to prove government
costs, and documents to be made available to PRPs, among other purposes.
Cost Recover) Expectations
FINDING: EPA has been criticized for the low rate of recovery of expenditures from the
Fund. It has also been criticized for not pursuing all expenditures from the Fund, including
those that cannot be attributed to particular sites.
A number of factors are involved in determining the appropriate measure of success
for the cost recovery program. First, success should be defined by comparison between
amounts recovered and amounts actually available for cost recovery, not total appropriations
from the Fund. Second, success should involve consideration of amounts committed by PRPs
for response action under settlements, which obviate the need for cost recovery. Finally, it
must be recognized that not all Fund expenditures are necessarily suitable for cost recovery.
DISCUSSION: Both Congress and the public expect substantial cost recovery of Fund
monies. As of the end of FY 1988, EPA has recovered $104 million of the $2.6 billion
expended. EPA has been criticized for this rate of recovery and intends to improve it.
2-25
-------
EPA needs to work with external constituencies and oversight bodies to establish
both challenging goals and realistic measures of success for the cost recovery program. In
the Agency's view, the most appropriate measure of success for the program involves
comparison with amounts actually available for cost recovery, and not total appropriations.
Simple comparisons of revenues to total amounts authorized for the Fund are misleading.
Funds must be authorized and appropriated by Congress, obligated for particular sites, and
then spent before cost recovery is possible. Moreover, legally liable and financially viable
PRPs must be available. Hence, the comparison between dollars authorized and dollars
recovered is not realistic; dollars authorized are not yet ripe for recovery.
The success of the enforcement program must also be measured by dollars
committed by PRPs for response action under settlements which obviate the need for cost
recovery. The primary emphasis of the enforcement program is on obtaining PRP
commitments to conduct the cleanup themselves. If the government is successful in
obtaining PRP commitments for cleanup, the Fund will tend to be used more and more
for sites with no financially viable PRPs that are not suitable for cost recovery. If the
primary focus of the enforcement program is instead to require that all expenditures are
recovered, then the Agency will have to forego other opportunities to generate additional
revenue through negotiated settlements for private party response, because cost recovery
demands have grown too stringent. The various arms of government interested in this
issue, including oversight agencies, must come to an understanding on these issues.
It is clear from the preceding discussion that cost recovery and settlement
expectations must be considered together. As the discussion of mixed funding indicates,
in some situations EPA will take the position that potential claims for past costs may be
reasonably compromised, where the result will be a settlement that benefits the public, and
is administratively more feasible than other methods of mixed funding.
Finally, not all Fund expenditures are necessarily suitable for cost recovery. For
example, the costs attributable to abandoned sites, where the Fund has paid for cleanup
and financially viable responsible parties cannot be found, are not assigned to other sites
for collection. The rulemaking discussed above will help to better define the types of costs
that the Agency can anticipate recovering. In identifying goals and expectations, EPA will
solicit the views of Congress and other interested agencies.
RECOMMENDATION: EPA should immediately undertake a study to identify ambitious
and realistic goals for the cost recovery program, and communicate them to Congress and
the public.
2-26
-------
Removal Cost Recovery
FINDING: Under the SARA amendments, the statute of limitations for removal actions
where a remedial action has not been initiated is three years after completion of the removal
The need for preparing referrals to DOJ and filing cases with the court before EPA's claim
expires puts a significant demand on legal and program staff. These staff may diverted from
other activities, such as negotiations and enforcement for response action, in order to meet
these deadlines. The return on EPA's effort for removal actions is likely to be smaller than
for remedial actions.
DISCUSSION: The issue of efficiency and realistic expectations is also relevant to EPA's
process for case selection. EPA's top priorities for cost recovery action are remedial
actions, and removal actions valued at over $200,000. EPA continues to pursue certain
cases where costs are less than $200,000, in order to maintain a risk of liability for PRPs
with relatively small potential exposure. The expiration date for the Agency's claim under
the statute of limitations is an important factor in identifying priority sites for cost
recovery. The deadline is approaching for a number of removal actions that were begun
soon after the enactment of SARA.
EPA anticipates an increased cost recovery workload, because more money is at
stake for remedial action, and because an increased number of remedial actions are
moving through the pipeline. Therefore, EPA plans to focus efforts on the sites which
provide the greatest incentive, and greatest return on revenue received, while developing
more efficient methods to pursue smaller cases with less potential revenue.
Some litigation for small cost recoveries is essential in order to maintain the PRP's
incentive to settle. EPA must also consider new approaches for cost recovery for removal
actions. EPA is considering steps to increase the use of arbitration as provided under
section 122(h) along with other forms of alternative dispute resolution to settle small cost
recovery cases without litigation. EPA recently promulgated regulations for arbitration
under section 122(h). EPA might also increase resources for negotiating and overseeing
PRP removal actions, to limit the number of cost recovery actions needed for removals.
RECOMMENDATION: EPA will develop an improved approach for recovery of costs for
removal actions. This approach will include a standard Alternative Dispute Resolution
opportunity, a real threat of litigation against recalcitrant parties, and increased efforts
to have PRPs conduct future removal actions, to reduce the need for subsequent cost
recovery actions by the government
2-27
-------
INTERGOVERNMENTAL COORDINATION
FINDING: A number of reports suggested that delays and disputes have resulted from the
division of responsibilities for Superfund enforcement. The enforcement process involves
multiple layers of review among various Regional and Headquarters offices and between EPA
and the Department of Justice, and a number of commenters argue that problems are
aggravated by different viewpoints in different organizations. Frequently, all of these
organizations responsible for enforcing the Superfund law need to reach agreement in order to
allow negotiations or litigation to come to a conclusion.
DISCUSSION: Responsibility for initiating negotiations and developing case referrals is
lodged with both Regional technical staff and Regional Counsel, while the Department of
Justice is responsible for filing settlements in court and for managing litigation. Several
Headquarters offices have responsibility for policy direction and resource management for
Superfund enforcement. Proposals for reorganization are outside the scope of this review,
but the task group addressed some issues resulting from the division of responsibilities in
the enforcement process. Issues include the following:
-Settlement and litigation disputes: Regions and DOJ staff have questioned the
effectiveness of the Settlement Decision Committee (SDC). The SDC has no provisions
for reaching final agreement except by consensus or by escalating issues to Assistant
Administrators and the Assistant Attorney General. The credibility of the SDC is affected
by delays in reaching decisions and difficulties in communicating the results to the Regions.
-Accountability: There is frustration in both EPA and DOJ concerning the seeming
lack of accountability of the other organization. Some at EPA feel that they have no way
to hold DOJ accountable for prompt filing or completion of cases or settlements. On the
other hand, DOJ trial attorneys are not always satisfied with their ability to get necessary
assistance from EPA. During litigation, courts occasionally extract commitments from trial
attorneys for producing particular documents or decisions that are in the hands of EPA.
It frequently requires considerable effort for EPA to mobilize and produce these
documents, or reach these decisions, and the EPA is not accountable to the court in the
same respect as DOJ.
-Technical and legal issues: Technical and legal questions overlap in the
enforcement process. Some technical staff argue that lawyers intrude on their technical
prerogatives, while attorneys question the sensitivity of technical staff to legal implications
of technical work.
2-28
-------
-Budget and workload planning: The legal arms of the enforcement process do not
view themselves as full partners in the budget planning process. Regional counsel's offices
are frequently perceived as underfunded. Counsel involvement may occur late in the
process, particularly in issues related to Records of Decision.
-Differing mindsets: Agency staff have perceived differences in mindset between
EPA and DOJ, and between technical staff and attorneys, in assessing settlements. There
is a sense that DOJ is less inclined to take risks, more willing to countenance delay,
demands a greater share of the costs of cleanup than EPA believes is practicable, and
requires a higher level of internal signoff before settlements will be accepted.
-Delegations: Recent waivers of Headquarters concurrence for settlements and
referrals have reduced internal layers of review. But these waivers have, in turn, raised
questions about national consistency concerning the government's use of settlement
authorities and interpretations of CERCLA's liability scheme.
Commenters and critics have made a number of proposals for addressing these
issues, including:
-SDC: The Settlement Decision Committee would be revitalized and streamlined
to resolve EPA-DOJ case specific disputes quickly. Disputes would generally be resolved
within one week. Remaining disputes would be routinely escalated to a final decision-
maker within EPA.
-"Problem-solver": EPA would create a senior position dedicated to prompt
resolution of enforcement or settlement issues among Regions, DOJ, or Headquarters.
-Case management planning: Each Region would institute a case or site
management planning process that would define the coordination necessary among offices
and Agencies involved in the Superfund process.
-Early DOJ involvement: EPA would provide an explicit opportunity for DOJ
involvement in case management planning and in negotiations. DOJ attorneys would be
present at negotiations, or provide input by telephone in a timely fashion.
-DOJ involvement in program planning: DOJ would be given increased
opportunities for involvement in budget planning and the development of accountability
commitments for enforcement.
2-29
-------
-DOJ accountability: EPA would use the Superfund Interagency Agreement (IAG)
for funding DOJ's Superfund enforcement activity to establish DOJ's accountability for
enforcement action. The IAG could also be used to distinguish technical and legal roles.
-Agency accountability: EPA would develop a method for recognizing judicially
imposed demands in both resource allocations and in internal Agency accountability
systems.
-Delegations review: EPA would establish a review and evaluation process, and
issue more detailed guidance to assure proper adherence to delegations.
-Conference: EPA and the Department would convene a top-level conference to
assure a consensus on goals for the program and procedures for addressing Superfund
settlement and litigation. Among other things, the conference would address the questions
of national consistency in the enforcement program and standards for cost recovery.
Most of these recommendations will receive further consideration, but the task
group has focused on a subset of them for this report. The recommendations concerning
accountability are closely related to resources. There is little advantage in cutting
resources of the Department of Justice, even if targets are not met. DOJ attorneys are
ultimately accountable to courts, which exercise more control over DOJ's workload than
EPA can. The recommendations set out below focus on establishing a shared sense of
what the program is intended to accomplish, and clear expectations concerning timing for
litigation and settlement.
RECOMMENDATIONS:
Conference; EPA and the Department of Justice should convene a top-level conference to
ensure a consensus on goals for the program and procedures for addressing Superfund
settlement and litigation issues. Issues that may be addressed include methods for
assuring national consistency, and the management process for cost recovery.
Case Management Planning; Each Region will institute a case or site management
planning process that will include provisions for coordination among the different offices
and organizations at critical stages in the enforcement process. EPA, in consultation with
the Department of Justice, will establish a single timeline for the Superfund remedial
program that sets out expected timeframes and results for each of the critical stages of
the enforcement and remedial process. Regions will have flexibility in establishing the
level of detail of their own planning process.
2-30
-------
Evaluation; EPA will undertake a formal study of the organization of the Superfund
enforcement program to evaluate whether a reorganization among Headquarters offices is
appropriate. This study should address, among other things, the question of relationships
between the Office of Waste Programs Enforcement (OWPE) and the Office of
Enforcement and Compliance Monitoring (OECM); suggestions that the planning and
budget functions of OWPE and the Office of Emergency and Remedial Response (OERR)
be consolidated; and questions of overlapping responsibilities among OECM, the Office
of General Counsel, Regional counsel, and the Department of Justice. As part of this
review, EPA should assess implementation of existing delegations of authority to the
Regional offices, and the waivers of Headquarters concurrence in referrals of enforcement
actions to the Department of Justice.
2-31
-------
III. ACCELERATING AND IMPROVING REMEDIAL ACTION
-------
CHAPTER III
ACCELERATING AND IMPROVING REMEDIAL ACTION
INTRODUCTION: The remedial process is the heart of the Superfund program; its
purpose is to identify and implement enduring solutions to the environmental problems
at uncontrolled hazardous waste sites. Unfortunately, the remedial process is not as
efficient or as effective as many people inside and outside EPA think it should be. To
some extent, this gap between expectations and reality is a reflection of unrealistic
expectations, but, to a larger extent, it is attributable to several factors associated with the
legislative mandate for the Superfund program, EPA's interpretation and implementation
of that mandate, and resource constraints under which EPA has had to manage the
program.
The task group has concluded that EPA can and should take steps to deal with
the most significant concerns about the remedial process-including steps to speed up
remedial studies, control hazardous waste releases while remedial studies are in progress,
and ensure that remedy selection is as consistent as it can be, given the constraints of the
law and the complexities of hazardous waste sites. In addition, the task goup has identified
steps that can be taken to make technical support more readily accessible to EPA's
Regional Offices, to strengthen EPA's oversight of remedial activities undertaken by
Potentially Responsible Parties (PRPs), and to improve the remedial process in a number
of other ways. The task group's specific findings and recommendations are presented in
this chapter.
The task group is not recommending radical changes in the remedial process.
More than two years have passed since the enactment of the Superfund Amendments
and Reauthorization Act (SARA). While it took a long tirr for EPA to make the policy
changes needed to bring the Superfund program into conformity with SARA (and that
process is still under way), a great deal of the groundwork is now in place, and the
program is gathering momentum. EPA anticipates, for example, that the required 175
Remedial Actions will be started-either by EPA or by PRPs--by the October 16, 1989,
deadline. Also, by March 31, 1989, the number of Remedial Investigations/Feasibility
Studies (RI/FS) initiated under SARA had reached 269, only 6 short of the 275 starts
required by the upcoming October deadline.
3-1
-------
Historically, uncertainty about the direction of the Superfund program and frequent
changes in policy and procedure have been among the most significant obstacles to
progress. Radical changes at this time could slow down the program once again, while
EPA and other Federal and State personnel charged with carrying it out learn and adjust
to new approaches. The task group therefore believes that such changes should be made
only after their implications have been fully analyzed, and it is clear that their benefits will
offset any disruption and delay they may cause.
Background
The remedial process includes the following phases:
* Remedial Investigation (RI): an assessment of the nature and
extent of contamination and the associated health and
environmental risks.
* Feasibility Study (FS): an analysis of potentially applicable
remedial technologies, usually undertaken concurrently with the
Remedial Investigation.
* Remedy selection: selection of a remedial alternative—often a
combination of treatment, containment, and other technologies.
* Record of Decision (ROD) preparation: documentation of site
conditions and explanation/justification of EPA's remedy
selection.
* Remedial Design (RD): preparation of plans and specifications
for implementing the chosen remedial alternative.
* Remedial Action (RA): construction or other work necessary
to implement the remedial alternative.
Each phase of the remedial process can be undertaken either by EPA or by States-using
Superfund dollars-or by PRPs under the supervision of EPA or States.
EPA managers and staff, as well as external groups (such as environmental and
community groups and PRPs) have many concerns about the remedial process. Not all
groups have the same concerns, but any list of the most common ones would include the
following:
3-2
-------
* The remedial process is too slow-each step takes too long and
actual cleanup often doesn't begin until years after sites are
identified.
* EPA's decisions on how much cleanup to undertake and what
technologies to use often appear to be inconsistent from one
site to another.
* Workloads and turnover among EPA staff responsible for
managing or overseeing remedial projects are excessive.
To analyze these and other concerns about the remedial process and to identify
possible solutions, the task group examined EPA's management of Fund-financed remedial
projects and State management and oversight of remedial projects. The task group
focused most of its attention on the first four phases of the remedial process.
The task group's study of the remedial process included interviews with more than
seventy-five Superfund managers and staff in EPA's Regional Offices (including many
Remedial Project Managers (RPMs), who are directly responsible for management and /or
oversight of remedial activities at Superfund sites) and in the Office of Emergency and
Remedial Response (OERR), which has primary responsibility for national management
of Fund-financed remedial activities and for development of the policies and procedures
under which such activities are conducted; meetings with representatives of environmental
groups, contractors involved in remedial activities, and Congressional staff; and review of
many of the studies of Superfund that have been completed in recent months, as well as
numerous other internal and external documents. The task group examined not only
external groups' ideas on how to strengthen the remedial process but also a large number
of steps that Superfund managers have already taken, including EPA Headquarters
initiatives and efforts undertaken by individual Regional Offices.
Resource Implications
Many of the task group's recommendations for strengthening the remedial process
have resource implications, particularly the recommendation that RPMs' workloads be
reduced. The staff resources needed to implement them could come from an increase in
total staffing in the Superfund program, from reallocation of existing resources, or from a
reduction in planned accomplishments.
3-3
-------
MAKING ACTION A PRIORITY
FINDINGS: Too often, some staff and managers in EPA and other Federal agencies-most
of whom are outside the Superfund program itself but who are key participants in portions of
the remedial process-are hindering rather than promoting fast action. In large part, these
people are responding to their own organizations' priorities rather than to the overriding priority
of the Superfund program-cleaning up sites as rapidly as possible. This situation can be
reversed only by strong and consistent messages from EPA's leadership and by providing
greater incentives for risk-taking and decisive management.
DISCUSSION: The primary purpose of this component of the task group's work was to
identify opportunities to improve the pace and quality of action at Superfund sites. Most
of the remainder of this chapter addresses specific problems or issues in site assessment,
decision-making, and program management. As appropriate, the task group makes
recommendations for discrete actions to address these problems.
In conducting its inquiry, however, the task group identified a pervasive, yet subtle,
set of forces that may impede progress in Superfund much more than the specific
problems addressed in the remainder of this chapter. The effect of these forces is that
relatively few people among the thousands who play some role in implementing the
program have unambiguous incentives to keep the program relatively simple, easily
implementable, and focused on action.
This situation is most evident in Regional Office decision-making processes. While
most Regional Offices experience some problems in obtaining quick review and approval
of key actions, the precise causes of the delays vary greatly across Regional Offices. A
common thread that emerged, however, is that many of the people responsible for
providing technical, scientific, or legal advice to Superfund managers and staff are able
to hold up actions until their own professional concerns are fully satisfied.
Perhaps the most egregious example is the case of a Regional Office where
commencement of Remedial Investigations/Feasibility Studies (RI/FSs) is routinely delayed
for three to six months while the Waste Management Division and the Environmental
Services Division debate the contents of site-specific Quality Assurance Project Plans. In
other Regional Offices, such problems may involve Office of Regional Counsel staff or
technical advisers (such as hydrogeologists, toxicologists, and air pollution modelers) who
are in the Waste Management Division but who occupy positions funded at least in part
by Superfund. Some Regional Offices have encountered analogous problems with
attorneys in the Department of Justice.
3-4
-------
Superfund managers and staff complain that many of these people do not share
the Superfund staffs accountability for deadlines and are rewarded for providing technical
precision in their areas of expertise, rather than for giving Superfund managers and staff
advice that can be balanced against the many other factors affecting decisions. The task
group found not that Superfund managers and staff want to ignore legitimate scientific,
technical, and legal concerns, but rather that they want to assess such concerns in the
context of EPA's responsibility to move as quickly as possible from studying and analyzing
Superfund sites to taking action at them.
In EPA Headquarters as well, there are people involved in the Superfund program
whose primary interests do not coincide with the Regional Offices' responsibility for taking
action at hazardous waste sites. The long development time for the proposed revisions to
the National Contingency Plan (NCP) is evidence both of the program's complexity and
of the fact that limited organizational interests often take precedence over moving the
program forward. Similarly, a cursory examination of legal and policy decisions regarding
how other Federal statutes will apply to Superfund leads to the conclusion that EPA tends
to choose paths that restrict and complicate program implementation rather than those
that take advantage of whatever flexibility and simplicity are available.
Clearly, Superfund will never be a simple program, and forces affecting it will never
lead uniformly to fast action at all sites. Moreover, program participants who may now
appear to be impeding progress are in many cases simply responding rationally to their
organizations' current reward structures. Nonetheless, it is clear to the task group that
developing a more effective Superfund program will require more than the formal changes
recommended in the remainder of this chapter. We believe that implementation of those
recommendations will be helpful, but we also believe that they will mean little without two
more fundamental changes-changes that focus on attitudes and approaches rather than on
processes and systems. First, to guide the hundreds of large and small activities that take
place in the Superfund program each day, the Agency must establish a clear and
overriding emphasis on action. Second, all program participants must develop a strong,
shared commitment to the program's mission and feel individually responsible not just for
meeting performance targets, but for doing everything possible to support RPMs and to
move sites toward cleanup as rapidly as possible.
RECOMMENDATIONS:
The Administrator should take the following steps:
1. Communicate and regularly reinforce to Superfund managers
and staff that the primary mission of the program is to take
responsible action at sites as rapidly as possible.
3-5
-------
2. Communicate the same message to the Attorney General and
the heads of other Federal agencies involved in the Superfund
program and secure their personal commitment to support
EPA's Superfund mission.
3. Hold EPA line managers accountable for managing the
program in accordance with its primary mission and track
their performance in doing so. For example, direct each
Regional Administrator to identify and eliminate avoidable
delays in Superfund decision-making in his office.
4. Direct the development of formal and informal mechanisms to
reward innovation, risk-taking, and decisive action in the
Superfund program.
ACCELERATING THE REMEDIAL PROCESS
FINDINGS: Because of technical complexities, statutory and regulatory requirements, and
enforcement and cost-recovery concerns, the remedial process is Inherently time-consuming.
DISCUSSION:
Technical Complexities
The first phase of the Superfund remedial process is the Remedial
Investigation/Feasibility Study (RI/FS) which, as its name indicates, has two distinct but
interdependent components. The purpose of the RI, which relies heavily on sample
collection and analysis, is to assess the nature and extent of site contamination and the
associated health and environmental risks. The purpose of the FS, which relies, in part,
on data developed in the RI, is to analyze and evaluate potentially applicable remedial
technologies.
RI/FSs are often technically complex undertakings, requiring detailed engineering,
hydrogeologic, and exposure/risk testing and analysis. Moreover, hazardous waste sites
tend by their very nature to be associated with a level of uncertainty that makes site
characterization particularly difficult. There usually is no blueprint of the site showing
the physical source or sources of contamination, no road map charting the routes of
3-6
-------
potential exposure and harm to humans and the environment, and no manifest detailing
the nature and extent of contaminants present. Even during the course of the RI/FS, site
conditions can change, and previously hidden hazards can emerge, necessitating additional
sampling and analysis and a reevaluation of remedial alternatives.
At present, the average RI/FS takes over two years to complete, and some take
considerably longer. Nevertheless, the task group found general agreement that severely
reducing the RI/FS to a cursory investigation and feasibility analysis at sites where complex
contamination and remediation issues exist would result in no overall shortening of the
remedial process but would simply shift thorough site and technology evaluation to a
subsequent phase. Furthermore, postponing all but superficial investigation until after
remedy selection in such cases could weaken the Record of Decision (ROD), requiring
time-consuming ROD amendment and complicating negotiations with PRPs, ultimately
lengthening the full remedial process. At selected sites, however, it may be appropriate
to abbreviate steps in the remedial process; ways to expedite the process in those cases
are discussed later in this section.
Because of the frequently extensive and unusual nature of contamination at
Superfund sites, as well as SARA's requirement that permanent solutions and alternative
treatment technologies be used "to the maximum extent practicable," it is often necessary
or advisable to conduct treatability studies to determine whether a proposed remedial
technology will prove effective at a site. In the past, treatability studies-which usually take
months to complete—were generally not conducted until after the ROD had been signed.
OERR has recently recommended that treatability studies, if they are necessary, be
conducted during the RI/FS, prior to remedy selection. The task group found strong
support for this recommendation. Most of those who commented on this issue believed
that although early treatability studies might lengthen the RI/FS, they would not increase
the total amount of time the remedial process takes. In addition, they thought that early
treatability studies would strengthen the ROD and facilitate negotiations with PRPs by
minimizing disagreements over the potential effectiveness of EPA's chosen remedy.
Statutory and Regulatory Requirements
SARA and the NCP impose a variety of requirements that consume significant
amounts of time during the remedial process. A number of these requirements are
associated with two of the program's fundamental goals: (1) promoting and facilitating
voluntary PRP performance or financing of site investigation and remediation and (2)
ensuring that affected communities are involved from the outset in developing and
selecting site remedies.
3-7
-------
To promote settlement with PRPs, for example, SARA includes provisions for
special-notice moratoria to allow for formal periods of negotiation between EPA and
PRPs: 60 days prior to RI/FS, RD/RA, non-time-critical removal actions, and section 106
enforcement actions. Each of these 60-day moratoria (with the exception of the RI/FS
moratorium, which can be extended for 30 days) can be extended for an additional 60 days
if a PRP submits a good faith offer during the initial 60-day period.
To ensure that communities have an opportunity to participate in remedy
development and selection, as required by SARA, the proposed revisions to the NCP
provides for a 30-day notice period for public, including PRP, comment on non-time-
critical removal plans, a 30-day-minimum public comment period (extended from 21 days
in the current NCP) after publication of the Proposed Plan for remedial action, and a 30-
day public comment period prior to the Department of Justice's entry of a judicial consent
decree for PRP-financed remedial action.
Provisions such as those noted above are essential to achieving statutory aims, but,
in combination, may add months to the remedial process. (Region I has prepared a chart
that graphically illustrates how enforcement and other requirements affect the length of
the remedial process; the time elapsed from the initiation of PRP search and the initiation
of RD/RA is five years.)
Enforcement and Cost-Recovery Concerns
Whenever viable PRPs exist, EPA must be prepared to take action to recover
program funds spent at the site. To support cost-recovery actions, EPA has to be able
to show that its remedy-selection decision was neither arbitrary nor capricious, and it must
be able to provide adequate documentation of costs related to the site. In addition, the
Agency must always be prepared to defend its actions in the event of a citizen or State
lawsuit challenging the selection of remedy.
The task group found considerable frustration among Regional Office staff and
managers with the extensive quality assurance/quality control (QA/QC) and voluminous
documentation required throughout the remedial process. Most of those interviewed
thought that the level of QA/QC and documentation currently undertaken is excessive for
purposes of site remediation; on the other hand, most believed that extensive QA/QC and
documentation may be necessary for effective cost-recovery and enforcement efforts.
Nearly all agreed that reducing QA/QC and documentation would save some time, but
that it would make sense only if EPA is willing to increase its risk of failing in cost-
recovery and other legal actions.
3-8
-------
FINDING: RPMs' heavy workloads contribute significantly to delays during the remedial
process. High staff turnover, particularly among RPMs, also causes delay.
DISCUSSION: The task group found virtual consensus among staff and managers
interviewed that a significant~if not the most significant-source of delay during the
remedial phase is the heavy workload borne by the typical RPM. (The number of sites
an RPM manages varies not only from Regional Office to Regional Office but also from
RPM to RPM. It is difficult to gauge an RPM's workload simply by counting the number
of sites he or she manages, since sites vary enormously in their complexity and the
demands they place on the RPM.)
Staff and managers cited three specific sources of delay that stem from excessive
RPM workloads: First, because of competing demands on their time, RPMs cannot always
respond quickly to the problems that inevitably arise at technically complex hazardous
waste sites. Second, responsibility for multiple sites forces RPMs to focus their attention
on major, pressing events, such as ROD preparation, to the detriment of routine, day-to-
day management of other sites. Third, heavy workloads make it difficult for RPMs to
develop or adhere to long-range site plans.
High staff turnover, particularly RPM turnover, was cited as a problem and a
source of delay in nearly every Regional Office. Headquarters estimates that the annual
turnover rate among RPMs may be as high as 20 percent. Because the remedial process
lasts years, it is not unusual for a single site to have multiple RPMs (as many as four or
five) over the course of the RI/FS; with each change, knowledge of the site is lost, and
established relationships—with the State, the community, contractors, and others—are
broken and must be rebuilt.
FINDING: The remedial process requires the participation of numerous parties outside the
Superfund program itself. In many cases, these participants have priorities or are subject to
constraints that are at odds with speedy action.
DISCUSSION: Superfund staff and managers interviewed by the task group cited many
sources of delay in the remedial process. Although factors noted as significant sources of
delay varied somewhat from Regional Office to Regional Office (aside from delays
inherent in the program and those associated with RPM workload and turnover), most had
one characteristic in common: they involved parties external to the Superfund program-
-and beyond the control of RPMs and their managers-with priorities and constraints that
are often inconsistent with rapid site investigation and remediation. Several of these
external sources of delay are discussed below.
3-9
-------
State Concurrence
State concurrence with remedy selection is essential if a site is to be moved
efficiently through the remedial process. At Fund-lead sites, States are required to finance
10 percent of the cost of remedial action (unless the State is a responsible party, in which
case its share is 50 percent). In addition, States must pay 10 percent of any operation and
maintenance (O&M) costs for ground-water and surface-water restoration for up to ten
years after remedial action is completed and 100 percent thereafter; for all other types of
action, States must pay 100 percent of O&M costs as soon as systems are operational.
Before remedial action can begin at a Fund-lead site, the State must sign a Superfund
State Contract in which it agrees to assume these costs. At enforcement-lead sites, SARA
provides that States may withhold concurrence, by intervening in the enforcement action
prior to entry of the consent decree, if they believe that the proposed remedial action fails
to meet a Federal or State Applicable or Relevant and Appropriate Requirement
(ARAR). (See section on remedy selection for a fuller discussion of ARARs.)
Several Regional Offices cited lack of State concurrence with remedy selection as
a major delay in moving sites toward remedial action. In some cases, State resistance
appears to be cost-related-States are unwilling or unable to assume their share of the
cost of the remedial alternative selected or to commit themselves to financing lengthy
O&M. In other cases, State resistance stems from differences with EPA concerning
feasible or appropriate levels of site cleanup. Whatever the underlying cause, lack of
State concurrence can cause substantial delays in the remedial process, including the
"shelving" of RODs at Fund-lead sites and lengthy legal battles at enforcement-lead sites.
PRP Participation
A number of Regional Offices noted that PRPs' preference for least-cost remedies
impedes progress throughout the remedial process. The problems cited included PRP-
lead RI/FSs that were strongly biased toward least-cost remedies; PRP failure to meet
RI/FS work schedules; and PRP foot-dragging and recalcitrance during negotiations, often
requiring extension of moratorium periods.
Internal Review
Although the number of people outside of the Waste Management Division
involved in document review during the remedial process varies from Regional Office to
Regional Office, reviewers typically include representatives from the Environmental
Services Division, the Office of Regional Counsel, and several program offices.
3-10
-------
Superfund staff and managers in several Regional Offices attributed substantial
delay to internal review, though there was no consensus regarding which divisions were
responsible for bottlenecks in the review process. Two Regional Offices cited slow Office
of Regional Counsel review of RODs, one cited intensive Environmental Services Division
scrutiny of quality assurance plans, and two cited lengthy review by numerous program
offices of various documents as sources of delay. In some cases, slow review was
attributed to inadequate resources in reviewing offices. In other cases, it was attributed
to priorities at odds with fast action~for example, Office of Regional Counsel's interest in
challenge-proof RODs and Environmental Services Division's desire for high-integrity
quality assurance plans.
FINDING: The two Regional Offices that have used removal authorities and contractors
during the remedial phase to expedite remedial action have found this approach to be
workable and effective in appropriate circumstances. Other Regional Offices either support or
have no objection to adding this approach to their options for accelerating remedial action.
DISCUSSION: To hasten progress at sites, Regional Offices have sought ways to expedite
remedial action. The most frequently used method is to divide a single site into two or
more parts-or operable units~so that work can proceed quickly at portions of sites where
fast action is essential or where relatively straightforward contamination can be addressed
quickly. Although RI/FSs and RODs are required for each operable unit, they are
normally less detailed and complex, and therefore less time-consuming, than RI/FSs and
RODs for full sites. In some cases, it is not necessary to conduct a discrete RI/FS for
each operable unit; instead, two or more operable units are extracted from a single RI/FS
undertaken for the full site.
Within the past two years, two Regional Offices-Regions III and IV~have begun
using a variant of the operable unit to accelerate site remediation. RD/RA at the typical
operable unit is carried out by remedial contractors, since RD/RA is a remedial-phase
activity. At selected sites, however, Regions III and IV have used removal contractors for
RD/RA. This approach can result in substantial time savings largely because of
differences between the types of contracts used for removal and remedial actions.
Removal actions are carried out under Emergency Response Cleanup Services contracts,
which are time-and-materials contracts. RD/RA has in the past been carried out under
Remedial Planning Contractor contracts and will in the future be carried out under
Alternative Remedial Contractor Strategy contracts, both of which are fixed-price, level-
of-effort contracts.
3-11
-------
According to both Regions III and IV, this difference has important implications
for the speed with which site action can be undertaken and completed. Removal
contractors are able to respond quickly to the many uncertainties and unknowns that are
typical of hazardous waste sites because their contract provides that they will be paid
whatever the full response action has cost. Remedial contractors, on the other hand, must
submit change orders if they encounter conditions that require deviation from the original
work plan, which can introduce considerable delay.
Managers in Regions III and IV emphasize that the use of removal contractors is
appropriate only for specific types of remedial actions-primarily those involving surface
contamination and source control. They agree that this approach is not appropriate for
ground-water restoration and long-term treatment activities.
One possible disadvantage of using removal contractors for remedial action is that
the capacity of removal contracts may be too limited to accommodate a large number of
remedial actions. In addition, EPA's Office of the Inspector General has expressed some
concern about the use of removal contractors to carry out remedial actions.
Overall, Regional Office managers and staff expressed support for taking innovative
approaches to speed the initiation of cleanup activities, including using removal contractors
during the remedial phase under appropriate circumstances. Several Regional Offices, for
example, have successfully persuaded PRPs to take early action at enforcement-lead sites
where conditions were suitable for expedited cleanup.
FINDING: Superfund staff and managers were unanimous in their support for limiting the
number of remedial alternatives considered during the RI/FS process to those with clear
potential applicability to site conditions. In addition, there was strong support for development
of prototype RI/FS and remedy-selection models for commonly occurring site situations.
DISCUSSION: All Superfund staff and managers interviewed by the task group supported
limiting the number of remedial alternatives considered in the RI/FS to those with clear
potential effectiveness. This attitude is consistent with the proposed revisions to the NCP,
which states the following: "[A] lengthy list of remedial alternatives is not required ....
The number and type of remedial alternatives should be tailored to fit the site problems
being addressed and established remedial action objectives." Recent Headquarters RI/FS-
streamlining guidance also calls for limiting the number of remedial alternatives
considered.
3-12
-------
The task group, however, found widespread belief among RPMs and managers
that the number of alternatives being considered remains excessive. Some believed that
they were required to consider numerous alternatives, even ones with little potential for
success; others indicated that there was little incentive to limit the number of alternatives
considered and substantial pressure, often because of enforcement and cost-recovery
concerns, to consider numerous alternatives.
Nearly all the Superfund staff and managers interviewed favored development and
use of prototype RI/FS and remedy-selection models (sometimes called model or generic
remedies) for recurrent site situations such as municipal landfills, battery-cracking sites, and
wood-treatment facilities. Such prototypes would be used as a starting point for planning
and conducting studies; where conditions at a specific site differ significantly from those
built into the model, RPMs would be expected to deviate from the model. Most believed
such prototypes would speed the RI/FS and remedy-selection process and would also
represent a strong signal from Headquarters that, at least for some sites, consideration of
a limited number of remedial alternatives is both appropriate and expected. OERR has
recently begun developing a prototype for municipal landfills.
RECOMMENDATIONS:
EPA should take steps to reduce RPMs' workloads. Possible approaches include
expanding the Superfund workforce, modifying expected accomplishments, and providing
RPMs with additional administrative and technical support
To accelerate the remedial process, EPA Headquarters should take the following steps:
1. Encourage Regional Offices to take expedited approaches to
site cleanup whenever possible—for example, by using removal
contractors during the remedial phase, dividing sites into
operable units that facilitate fast action, and encouraging PRPs
to finance early remedial measures. Headquarters should
monitor the extent to which such approaches are being used
and quickly take steps to remove any identified barriers to
their use.
2. Proceed as rapidly as possible with the development of
prototype RI/FS and remedy-selection models for recurring
types of sites already identified (municipal landfills, battery-
cracking sites, and wood-treatment facilities) and ask Regional
Offices to identify other types of sites for which prototypes
would be useful.
3-13
-------
3. Emphasize to Superfund staff and managers and to remedial
contractors the existing policy that the number of remedial
alternatives considered during the RI/FS should be narrowed
as quickly as possible to those with clear potential applicability
to the site.
PROMOTING CONSISTENCY IN REMEDY SELECTION
FINDINGS: EPA has already taken steps to strengthen the remedy-selection process.
Additional steps are necessary to foster consistency and more frequent use of permanent
remedies and to improve the quality of EPA's Records of Decision. Remedy selection is,
however, a process that requires EPA officials to make judgments about complex and
controversial matters under a law that requires consideration of various factors that sometimes
conflict.
DISCUSSION:
Remedy selection is the process by which EPA officiate-usually Regional
Administrators—choose among alternative ways to meet SARA's requirements for remedial
action at hazardous waste sites. In its inquiry into remedy selection, the task group
concentrated on three issues-the use of EPA's nine criteria for assessing and comparing
alternative remedies, how SARA's requirements for compliance with ARARs affect remedy
selection, and ways in which remedy selection can be made more consistent among similar
sites.
The task group's examination of these issues was aimed at determining not only
what is being done and how the process could be strengthened, but also how much
improvement can reasonably be expected. For this purpose, the task group examined the
decision-making process in EPA's Regional Offices and the steps EPA Headquarters
offices have already taken to provide policy guidance and technical support for remedy
selection and to oversee and evaluate the Regional Offices' remedy-selection decisions.
The task group did not actually examine or analyze decisions that have been made at
Superfund sites, though it did review and consider OERR's recently completed analysis of
fiscal 1988 RODs.
3-14
-------
Clearly, some potentially fruitful steps have been taken. Because it will take some
time for results to be apparent, the task group can offer only a preliminary assessment.
Nevertheless, it seems clear that some additional steps would be productive; specific
recommendations are presented below.
Nine Criteria
EPA has taken a number of steps to provide increased assurance that Regional
Administrators' remedy selection decisions satisfy SARA requirements. One such step
was the formulation of a set of nine criteria to be used in assessing and comparing
remedial alternatives. These criteria were first articulated in a memorandum issued in
July 1987. They are included in the proposed revisions to the NCP (together with
additional explanation of how decision-makers should use them in evaluating remedial
alternatives) and thus have been subject to public review and comment. EPA currently
is analyzing the public comments and deciding whether to modify the NCP before
promulgating it. Accordingly, it would be inappropriate for the task group to offer any
comments on the nine criteria, per se.
The task group did attempt to determine, however, whether and how Regional
Offices use the nine criteria and whether they need additional guidance on their use.
Regional Office managers and staff clearly regard the criteria as useful, because they
translate SARA requirements into a practical tool for evaluation of remedial alternatives.
In some Regional Offices, however, there seems to be a tendency to use the nine criteria
mainly to verify the acceptability of those remedial alternatives that have informally been
judged most suitable based on experience, expert advice, and RI/FS results. In any case,
there is a high level of awareness in the Regional Offices that the criteria are intended to
help them ensure that their decisions satisfy SARA requirements. OERR's analysis of
fiscal 1988 RODs provided evidence to support this conclusion; of the RODs evaluated,
nearly 80 percent addressed all nine criteria. The task group believes that additional
experience with the criteria, coupled with implementation of the recommendations made
in this report, will result in real improvements in remedy-selection decisions.
Consistency: Current and Planned Initiatives
EPA ha.i been criticized for inconsistencies in its remedy selections at Superfund
sites. External groups maintain that remedies should be similar at sites that are similar.
EPA managers recognize that inconsistency can and does occur (in part because of SARA
requirements and other factors, as discussed below), though they do not agree that it is as
common or significant as external groups have contended. Nevertheless, both EPA
Headquarters and some Regional Offices have taken some steps to reduce inconsistency-
-including steps designed to provide information in advance of remedy selection and/or
feedback based on either real-time or retrospective review of remedy-selection decisions.
3-15
-------
Giving Regional Office managers and staff easy access to information about past
remedy-selection decisions clearly could promote consistency. Such information is
presented in the RODs that document and explain all remedy selections. EPA has been
assembling and distributing copies of RODs and ROD abstracts for some time. A step to
provide this information in a more easily retrievable form was taken in September 1988
with the introduction of an automated database containing the full texts of RODs. All
fiscal 1986 and 1987 RODs and about one-half of those completed in fiscal 1988 are now
in the database. EPA staff members and contractors have access to it and can use it to
obtain the full texts of RODs or to conduct searches for specific information. Thus far,
the Regional Offices' use of the database has been limited, largely because it still does not
contain all recent RODs and because many Regional Office staff have not had formal
training in its use. While the use of the database does not guarantee consistency in
remedy selection, it at least offers Regional Offices a relatively easy means of comparing
remedy selections at similar sites.
EPA Headquarters also is instituting a Quality Control program for RODs. This
initiative is designed to give the Regional Offices a framework for review of RODs before
they are signed.
EPA Headquarters recently conducted a retrospective analysis of a sample of RODs
completed in fiscal 1988. This analysis focused on the quality of RODs, in terms of
measures such as the extent to which the RODs presented a complete rationale for the
decisions they described. While evaluating RODs in such terms clearly is important, this
retrospective review also could be a means by which EPA Headquarters could identify
trends in remedy-selection decisions. Follow-up discussions with Regional Office managers
and staff could include both positive and negative feedback, as appropriate. Such an
evaluation of remedy-selection trends, coupled with the type of analysis already being
performed, could serve not only to improve the Regional Offices' documentation and
explanation of remedy-selection decisions, but also to give EPA Headquarters managers
opportunities to provide concrete advice about remedy selection from a national
perspective. In addition, making the results of these analyses widely available would
facilitate public understanding and discussion of EPA's decision-making process.
Peer reviews of remedy-selection decisions also could foster consistency—provided
such reviews are performed before decisions are final. Some Regional Offices have set
up formal or informal peer review processes (in addition to the normal chain-of-command
reviews) that often involve scientific and technical experts from various groups, including
those involved in protection of air, water, and ground-water quality. Such reviews within
3-16
-------
a Regional Office certainly could promote consistency in remedy selection for sites within
that Regional Office's jurisdiction. Their effectiveness in fostering consistency nationwide
obviously will be limited unless peer reviewers are aware of remedy-selection decisions
elsewhere in the country-awareness that could be acquired through personal
communications with people in other Regional Offices and through use of the ROD
database.
In addition, while EPA Headquarters does not formally participate in many remedy-
selection decisions, the Regional Coordinators in OERR and the Office of Waste Programs
Enforcement (OWPE) can help promote consistency by reviewing drafts of Proposed Plans
(by which Regional Offices obtain public comment on the remedial alternatives they are
most likely to choose) and RODs. Currently, however, the Regional Coordinators often
do not have time to perform more than a cursory review of many of these documents.
A common theme in the task group's discussions with Regional Office managers
and staff—whenever the consistency issue was raised—was the need to have a clear
statement of EPA's expectations about remedy selection. An initial version of such a
statement appeared in the preamble to the proposed revision of the National Contingency
Plan (see Federal Register. Vol. 53, No. 245, December 21, 1988, pages 51422-51423).
EPA currently is considering how best to codify and communicate the content of this
statement.
Limitations on Consistency
Clearly, EPA's interests are served by doing everything it reasonably can do to
promote compliance with SARA requirements and consistency in remedy selection. Even
so, the Agency's remedy-selection decisions will not satisfy all interested parties in all
cases-nor is it reasonable to expect that they will. EPA has been criticized for
decentralizing remedy selection-delegating it to Regional Administrators in most cases.
The task group believes, however, that either returning this responsibility to EPA
Headquarters or requiring Headquarters concurrence in all remedy-selection decisions
would significantly slow down the Superfund program and-more significantly-would tend
to isolate decision-making from the citizens most affected by it and the Regional Office
managers and staff who are most knowledgeable about site conditions.
Furthermore, EPA has to be wary of allowing or encouraging expectations about
consistency in remedy selection to rise to a level not called for by SARA, not reasonable
in dealing with hundreds of hazardous waste sites that differ in many respects, and
probably not attainable under a statute that requires consideration of several factors that
militate against consistency in remedy selection and are in conflict with one another, in
some cases. For instance, the statutory requirement to comply with State ARARs-which
3-17
-------
may vary significantly from one State to another-makes consistency difficult to achieve.
In addition, Superfund sites differ so much in terms of factors that affect the practicability
of alternative remedies, such as size, geology, and waste composition, that it may not
always be feasible to use similar remedies at sites with similar routes of human exposure
or similar health risks.
ARARs
SARA requires that remedies selected at Superfund sites comply with ARARs
established under Federal or State environmental laws. Federal or State requirements
are applicable to a Superfund site if they would otherwise be legally applicable to the
types of hazardous waste, types of action being taken, or other circumstances at the site.
They are relevant and appropriate if, while not applicable, they deal with problems
sufficiently similar to those existing at the site that they are well suited for use in selecting
a remedy for the site. State requirements are ARARs only if they are more stringent than
corresponding Federal requirements.
Regional Office managers and staff identified two major problems arising from the
statutory requirement for compliance with ARARs. One is that it often is difficult to
determine whether environmental laws and regulations-especially those established by
States-that do not meet the "applicable" test are "relevant and appropriate" for Superfund
sites. In this regaid, a question that arises frequently is whether States are consistently
applying~in their own environmental protection programs-standards and regulations they
identify as ARARs. There is a widespread perception among Regional Office managers
and staff that ARARs—especially those in the "relevant and appropriate" category—add
more to the cost than to the public health benefits of remedial actions in many cases.
The ARAR-related problem clearly considered most significant by the Regional
Offices is the question of when and where the land disposal restrictions being established
by EPA under the Resource Conservation and Recovery Act (RCRA) are ARARs. There
is widespread concern and confusion among Regional Office managers and staff about the
extent to which they must comply with RCRA requirements for treatment of waste that
is to be land-disposed. There is also a widely shared view that the RCRA treatment
requirements often dictate the selection of remedies that are technologically impracticable
(reflecting the difficulty of treating contaminated soil and debris to comply with treatment
standards based on what is technologically feasible for concentrated waste streams). There
also are many uncertainties and unresolved issues surrounding the interpretation and
implementation of SARA provisions allowing ARAR waivers and RCRA provisions
allowing variances from treatment requirements. As a result, these statutory approaches
to ARAR compliance rarely are used.
3-18
-------
EPA has issued some policy guidance on RCRA issues (including a memorandum
issued in April 1989 that deals with the question of when the RCRA land disposal
requirements are "applicable" but leaves many other issues unresolved) and is developing
more. In addition, an effort has been underway for about three years to develop RCRA
treatment standards for contaminated soil and debris, but key issues remain unresolved.
Historically, disagreement among senior managers in the Superfund and RCRA programs
has been the principal stumbling block in the way of efforts to furnish the Regional Offices
definitive guidance. With many issues unresolved, there is at least a potential for Regional
Offices to make inconsistent decisions on questions about the application of RCRA
requirements to Superfund sites.
RECOMMENDATIONS:
To promote consistency in remedy selection-and emphasize the statutory preference for
permanent remedies-the Office of Emergency and Remedial Response, in cooperation
with the Office of Waste Programs Enforcement, should take the following actions:
1. Provide real-time feedback on proposed remedy-selection
decisions by ensuring that Regional Coordinators in the two
offices have time to review drafts of Proposed Plans-which
identify the remedial alternative likely to be chosen for a
Superfund site--and Records of Decision.
2. As part of overseeing Regional Office activities, examine
remedy-selection decisions from a national perspective by
conducting regular reviews to identify any trends that run
counter to statutory requirements or EPA's expectations and
by clearly communicating the results of these reviews to EPA's
Regional Administrators. Such reviews could be part of a
productive relationship between EPA Headquarters and
Regional Offices.
3. Ensure that the Regional Offices have information on previous
remedy-selection decisions by keeping the Record of Decision
database updated; ensure that all RPMs are trained to use it
and have access to it
To promote consistency in remedy selection, compliance with statutory mandates, and
appropriate consideration of available factual and analytical data about site conditions
and potentially applicable remedial technologies, the Regional Offices should take the
following actions:
3-19
-------
1. Within those Regional Offices that have not already done so,
establish peer review processes for drafts of Proposed Plans
and draft Records of Decision.
2. Ensure that RPMs check the Record of Decision database
before making any recommendations on remedy selection;
where a recommended remedy materially differs from those
previously selected for similar sites, require that RPMs be
prepared to present the rationale for the difference.
To minimize uncertainty and confusion about Applicable or Relevant and Appropriate
Requirements of Federal environmental laws, the Offices of Emergency and Remedial
Response and Waste Programs Enforcement, in cooperation with other EPA Program
Offices, should take the following actions as quickly as possible:
1. Resolve all outstanding questions about the applicability or
relevance and appropriateness of Federal standards and
regulations, especially those promulgated under the Resource
Conservation and Recovery Act.
2. Ensure that the Regional Offices participate in decision-making
on these issues and that the results of the decision-making
process are clearly communicated to all Regional Office
managers and staff in Superfund and other affected EPA
programs.
REGIONAL COORDINATORS
FINDINGS: Regional Office staff need a point of contact in EPA Headquarters to obtain
answers to policy and technical questions, as well as advice on consistency of proposed
remedies. Regional Coordinators in Headquarters offices can meet this need if their roles are
strengthened and upgraded.
DISCUSSION: Several staff members in OERR and OWPE serve as Regional
Coordinators. The coordinators in OERR are responsible for one of two areas--RI/FS
and ROD, or RD/RA; the OWPE coordinators are similarly split. Most Regional
Coordinators have two or more Regional Offices to cover. Their responsibilities to the
Regional Office staff include answering policy questions on, for example, ARARs (or
referring questions to someone else who can respond); answering and referring technical
questions on topics such as the use of particular remedies; and reviewing and advising
3-20
-------
Regional Office staff on Proposed Plans and RODs. Most of the coordinators' contacts
with Regional Office staff are by telephone, and most of the calls they receive are from
RPMs. Another major responsibility of Regional Coordinators is to help Headquarters
managers obtain information from the Regional Offices. For example, Regional
Coordinators may be asked to gather information about controversial sites or as
preparation for Congressional testimony. All Regional Coordinators have additional
responsibilities; most of them spend 10 to 50 percent of their time on coordination duties.
Regional Coordinators meet weekly to discuss issues that Regional Office staff have raised,
and they use these meetings to promote consistency in the answers they provide.
When the position of Regional Coordinator was first created, a large part of the
Regional Coordinators' role was to review and recommend Headquarters action on RODs.
Since the approval of RODs was delegated to the Regional Offices, however,
Headquarters' formal concurrence role no longer exists, except in a very limited number
of cases. When ROD approval was delegated to the Regional Offices, Regional
Coordinators' duties were reduced from full- to part-time.
The task group found great support among Regional Office managers and staff for
the function of Regional Coordinators, but concerns about how the role is currently being
filled. First, the fact that Regional Coordinators have taken on responsibilities in addition
to their coordination role has necessarily reduced their ability to be responsive to RPMs.
This, in turn, has led some RPMs to hesitate to call Regional Coordinators, under the
assumption that they will be too busy to assist or will do so to the detriment of other
work. Second, since the Regional Coordinator function was scaled back, turnover has
increased. New Regional Coordinators, even if they are familiar with some aspects of
the Superfund program, naturally cannot provide the same quality of guidance and
assistance that a Regional Coordinator with several years of experience can. Third, no
one in EPA's Office of Solid Waste and Emergency Response is responsible for knowing
about all the technical support services available to RPMs (see section on technical
support). Regional Coordinators may be aware of some, but not all, of these services. It
would be logical to assign Regional Coordinators this coordination function, or to have the
Office of Research and Development perform it.
Despite the present emphasis in Headquarters and the trend for Regional Offices
to integrate Fund and enforcement activities, questions on Fund-lead sites currently go to
OERR coordinators, and those on enforcement-lead sites to OWPE coordinators. Since
many Regional Offices now have geographic-based branches in which Fund- and
enforcement-lead functions are integrated, it would be easier for RPMs if areas of
responsibility for Regional Coordinators were also further integrated.
3-21
-------
RECOMMENDATIONS:
To strengthen the role and effectiveness of Regional Coordinators, the Office of
Emergency and Remedial Response and the Office of Waste Programs Enforcement
should take the following steps:
1. To increase the retention of Regional Coordinators and to
improve the quality of the services they provide, upgrade these
positions, assign experienced staff to them, and assure that
Regional Coordinators have sufficient time to be responsive to
requests from the Regional Offices.
2. Direct technical and procedural questions relating to the
planning and conduct of remedial activities to Regional
Coordinators in the Office of Emergency and Remedial
Response and legal and enforcement questions to Regional
Coordinators in the Office of Waste Programs Enforcement
Consider an eventual merger of the two groups of Regional
Coordinators at EPA Headquarters.
3. Publicize within EPA the existence and role of Regional
Coordinators and aggressively encourage RPMs to call on
Regional Coordinators for assistance.
PROVIDING TECHNICAL SUPPORT
FINDINGS: The range of technical support services available to RPMs is expanding. RPMs
generally are able to obtain the technical support they need to keep their projects going, but
they often are not aware of what is available or how to obtain it. In short, technical support
is not made available to RPMs as efficiently or effectively as it should be.
DISCUSSION: Technical support is the means by which RPMs get the advice and
information they need to resolve the many scientific and technical questions that arise at
Superfund sites-questions dealing with matters such as sampling and analysis methods, risk
assessment, and waste treatment technology. Technical support for RPMs is essential.
Though many of them have degrees in science or engineering, they cannot be expected to
have all the scientific and technical expertise needed to do their jobs properly unless they
have assistance from other sources.
3-22
-------
Typically, when RPMs need technical advice, they begin by consulting their
supervisors, other RPMs, or members of a technical support group in the Superfund
program, if there is such a group. Then, either because these people cannot provide
answers or have suggested other sources, RPMs may consult people in other groups in
their Regional Office, including people in the RCRA and ground-water protection
programs or in Environmental Services Division, which generally has expertise in
environmental sampling and analysis. An RPM's search also may encompass experts
elsewhere in EPA and may involve the use of automated databases.
The trouble is not that technical support is unavailable; indeed, the number and
range of technical support services available to RPMs have increased significantly within
the past two years. Within the Superfund program, there are now technical support
groups in several Regional Offices. EPA's Office of Research and Development (ORD)
has established four Technical Support Centers to provide advice about assessment and
remediation of ground-water contamination, treatment of hazardous waste, sampling and
analysis at hazardous waste sites, and assessment of ecological risks. The Technical
Support Centers reflect a general increase in ORD's responsiveness to needs for technical
support in the Superfund program. OERR also has undertaken or sponsored a number
of other technical support efforts, including the creation of Biological and Technical
Assistance Groups in virtually all Regional Offices; these groups provide scientific and
technical advice on ecological risk analysis. ORD is setting up a clearinghouse for
information on hazardous waste treatment technology. Regional Forums in the areas of
engineering and treatment and ground-water fate and transport have been established to
improve communication among Regional Offices and to help in routing reruests for
technical advice and assistance.
Despite these initiatives, RPMs often must spend too much time searching for
answers. Some of the existing technical support services are not well publicized. In some
instances, RPMs may find that designated experts already have more requests awaiting
their attention than they can satisfy (which is why some technical support services are not
widely publicized). In some cases, people involved in other environmental programs in the
Regional Offices that are staffed to provide specific types of technical support to the
Superfund program (e.g., reviews of RI/FS reports or RODs) do not share the sense of
urgency with which Superfund operates; thus, their responses may be belated or
substantively insufficient.
In general, the technical support services available to RPMs are not organized for
efficiency. They seem to have proliferated rapidly but not in accordance with any master
plan. As a result, there is now a patchwork of technical support services that cries out for
management attention. There is a need for both near-term and longer-term action.
3-23
-------
Near-term actions are needed to ensure that RPMs are well aware of the range
of technical support services available to them and know how to obtain these services.
Many Regional Office managers and staff suggested that a directory of technical support
services be promptly developed and regularly updated; if one already exists, most of them
are unaware of it. In the case of automated databases, needed near-term actions include
training to familiarize RPMs with the content of the databases and the procedures for
obtaining access to them; some RPMs may need easier access to computers and basic
training in the use of computers to communicate with automated databases. Although
some of the computer-based technical support services for RPMs are available only
through EPA's Electronic Mail System, relatively few RPMs know how to use the system
or have easy access to it.
In the longer term (but within the next 12 months), it is essential that the Agency
take steps to improve and coordinate technical support services. While it may be neither
necessary nor feasible to have all technical support services housed in a single
organizational unit, the task group believes that they all should operate under a single
"umbrella"-one group or one official responsible for ensuring coordination in assessing and
meeting technical support needs and establishing and evaluating technical support services.
The task group was encouraged to learn that OERR's Deputy Director has been given
special responsibility for overseeing OERR's technical support activities. There is no
question that the Deputy Director can make sure that appropriate action is taken, but he
clearly cannot decide what should be done and monitor and evaluate the results without
staff support.
To lay the groundwork for development and implementation of a master plan in
this area, a number of questions need to be answered: Which technical support needs
are most pressing? To what extent are the existing and planned technical support services
meeting or designed to meet the most pressing needs? Are they being effectively used?
A definitive assessment of technical support needs and resources could provide answers to
these and other critical questions.
RECOMMENDATIONS:
To enable RPMs to identify and use EPA's technical support services, the Office of
Emergency and Remedial Response, in conjunction with the Office of Waste Programs
Enforcement and the Office of Research and Development, should quickly take the
following actions:
1. Prepare and publish a directory of technical support services,
update it frequently, and ensure that every Remedial Project
Manager promptly receives the initial and all updated editions.
3-24
-------
2. Ensure that all RPMs know how to use automated databases
containing information relevant to their work and that they
have access to computers configured for data communication.
Within the next several months, the same three Headquarters offices should lay the
groundwork for effective long-term management of technical support services. Toward
this end, they should take the following actions:
1. Designate an existing group, or establish a new one, to be
responsible for EPA-wide management of technical support
services to RPMs.
2. Direct this group to develop and implement a master plan for
assessing and meeting RPMs' needs for technical support
DEFINING STATES' ROLE AND IMPROVING THEIR CAPABILITY
FINDINGS: Although some States have effective site cleanup programs, many currently do
not. As a result, there often are delays and quality problems at sites where States have the
lead role in managing Fund-financed RI/FSs or in overseeing RI/FSs being conducted by
PRPs. The lack of a clear definition of States' roles in the Superfund program limits efforts
to improve current State capabilities and will prevent EPA and States from combining their
resources most effectively in the future.
DISCUSSION: If EPA determines that a State is capable of undertaking remedial
activities at a site, the Regional Office can allow the State to take the lead for the
Remedial Investigation/Feasibility Study (RI/FS) and Remedial Design (RD). States have
taken the lead at some sites (to date, primarily on RI/FSs) in most Regions. On Fund-
lead projects, States conduct RI/FSs with EPA funding, using their own consultants,
contractors, and staff. States can also take the lead at enforcement sites (i.e., those at
which PRPs are conducting remedial activities) for which they receive EPA grants to cover
their oversight costs. EPA Regional Office staff are responsible for overseeing State
activities at these sites. In order to take the lead at a Fund site, a State must enter into
a cooperative agreement with EPA, which defines each entity's responsibilities during the
remedial period.
With some exceptions, State-lead RI/FSs have not been fully successful. The
primary problem is that States have often been slow in conducting these activities. There
are three reasons for this lack of timeliness. First, State Superfund programs tend to be
underfunded and, because of low salaries and high turnover, lack experienced staff.
3-25
-------
Second, some States' contracting procedures and other administrative processes lead to
delays. In at least one State, for example, it can take up to two years to select a
contractor through the competitive bidding process. (The task group acknowledges that
EPA faces similar personnel and administrative problems in the Superfund program.)
Third, some States that take on Federal sites place a higher priority on addressing their
own, non-NPL sites and let deadlines slip for their activities at Federal sites. Even though
the cooperative agreements specify deadlines, EPA has no means to enforce them.
In at least three Regions, EPA has had to take back sites from States because of
lack of progress. One Regional Office, for example, took back a site from a State that
had spent four years on the RI/FS and was still far from completing it. There are, of
course, exceptions to this generalization about State programs. Several States have
developed effective Superfund programs. These States have highly competent staffs and
well funded programs. They usually move quickly and aggressively in addressing both
their own sites and Federal sites for which they have the lead.
Current problems with State-lead sites are of concern for two reasons. The most
immediate is that EPA and States should be striving to achieve effective and efficient
action at all Superfund sites, regardless of the lead agency. A broader concern is that
with over eleven hundred sites on the NPL and thousands of others identified as possibly
needing action, the magnitude of the hazardous site cleanup problem is larger than EPA
alone can manage and will require that States and EPA marshal their combined resources.
In the task group's view, the lack of an agreed-upon vision for future State/EPA
roles in hazardous site cleanups (both NPL and non-NPL) is a major obstacle both to
improving current work on State-lead sites and to making the most effective use of State
and EPA resources in the long term. Without that shared vision and a strategy for
implementing it, EPA and State managers and staff are often operating on inconsistent
assumptions about their roles in each other's programs. For example, some Regional
Office managers have concluded that States should never play a stronger role in managing
NPL sites; others view the States as "the future of the program" and State program
development as an important, if small, part of their current responsibilities.
State managers who advocate a more extensive State role at both NPL and non-
NPL hazardous waste sites have suggested that EPA take several measures to increase
the number, efficiency, and quality of State cleanup activities:
* Allow States with strong Superfund programs to assume more
project leads at both Fund and enforcement sites.
* Eliminate any existing disincentives to State assumption of
project leads.
3-26
-------
* Over time, scale back EPA oversight of State-lead sites; shift
resources saved through reduced oversight to EPA-lead sites.
* Improve weak State Superfund programs by providing training
and tools to strengthen their technical, legal, and administrative
capabilities.
* Examine proposed mechanisms to encourage increased State
activity at non-NPL sites, including deferral of sites to State
agencies.
RECOMMENDATIONS: EPA should begin now to resolve the fundamental policy
question of what States' long-term role in the Superfund program will be. Based on that
policy decision, EPA and States should jointly develop short- and long-term strategies to
enhance State program capability, improve State performance at State-lead Superfund
sites, and foster State remedial activity at sites not on EPA's National Priorities List
MAKING TECHNICAL AND POLICY GUIDANCE MORE USABLE
FINDINGS: Existing technical and policy guidance for Regional Offices is generally too long
and detailed for its intended purpose and is often not easily accessible. Questions also exist
as to whether guidance is prescriptive or advisory.
DISCUSSION: In a program as complex as Superfund, it is clearly necessary that EPA
Headquarters provide a considerable amount of technical and policy guidance to the
Regional Offices. Formulating and distributing such guidance is one of OERR's and
OWPE's major responsibilities. In addition, EPA's Office of General Counsel and Office
of Enforcement and Compliance Monitoring contribute legal and enforcement guidance.
There currently are some two hundred technical and procedural guidance documents and
policy directives, and more are being developed. Although all this guidance is well
intended, there is a consensus among Regional Office managers and staff that much of the
existing Superfund guidance is too long and detailed to serve its intended purpose.
Neither RPMs nor managers are able to read and retain all the guidance coming
from Headquarters, let alone incorporate it into their day-to-day thinking and planning.
This is especially true of guidance on policy and procedures. While the task group could
not conduct a formal analysis of the existing Superfund guidance, task group members
did read many of the existing guidance documents (a term that will be used in this section
to encompass technical and procedural guidance documents and policy directives). Their
3-27
-------
assessments echoed those offered by many Superfund managers and staff in both
Headquarters and Regional Offices-thai many guidance documents are much longer than
necessary, that they tend to be repetitive, that they frequently provide unnecessary advice
on straightforward issues, and that they often dwell on exceptions rather than stating a
"rule" to be followed in most cases.
OERR has begun responding to the Regional Offices' concern about the length of
guidance documents by developing and issuing "short sheets." Those developed so far are
two to six pages long-including tables and charts designed to present information clearly-
-and summarize material that occupies two or more chapters in conventional guidance
documents. To the extent that they have seen or know about short sheets, Regional
Office managers and staff welcome them. The task group agrees that short sheets are a
reasonable approach, not only as a way to make existing guidance more accessible but
also as the basic format for all future guidance. Where Headquarters believes that more
detailed material should be available to Regional Office managers and staff, such material
could be presented as reference documents.
RPMs also have problems obtaining access to guidance. They tend to consult
guidance documents for answers to specific questions when they know there is guidance
that deals with those questions; often, however, RPMs are not even sure whether there
is relevant guidance or whether the material they can find is the most recent
pronouncement on the subject in question. In addition, RPMs report that they sometimes
cannot locate copies of guidance even when they know it exists, that their Regional Offices
generally receive few copies of guidance documents and directives (which means that
RPMs cannot take such materials with them on trips), and that they sometimes have
difficulty obtaining copies of guidance documents from Headquarters. Regional Office
managers and staff also report that PRPs sometimes receive new guidance documents
before Regional Offices do.
There is no indication that the deficiencies of existing guidance prevent Regional
Office managers and staff from getting their work done. Furthermore, it is obvious that
guidance on implementing a statute as complex as SARA cannot always be presented in
simple declarative sentences. In short, the task group recognizes that there are some
significant limitations on what can and should be done about the problems identified here.
The task group has concluded, however, that guidance is of limited value to people who
find it difficult and frustrating to use.
The task group identified two other problems relating to the formulation and use
of technical and policy guidance: First-and somewhat ironically-there are technical and
policy issues on which Regional Offices want guidance but have been unable to obtain it.
One example brought to the task group's attention is the question of whether and how
land use considerations should be taken into account in remedy selection. Another is the
Regional Offices' interest in having Headquarters provide copies of RODs or sections of
3-28
-------
RODs that are considered exemplary. The second problem identified is a lack of
definition as to the force and effect of Superfund guidance--that is, whether it is
prescriptive or advisory. This uncertainty sometimes leads EPA contractors to argue that
they cannot do less than is called for in Superfund guidance (because they are concerned
about liability) and PRPs to resist Regional Office requests to do anything beyond what
is explicitly called for in the guidance.
RECOMMENDATIONS:
To facilitate Regional Offices' use of and access to program guidance, the Office of
Emergency and Remedial Response and the Office of Waste Programs Enforcement, in
conjunction with* the Office of General Counsel and the Office of Enforcement and
Compliance Monitoring, should take the following steps:
1. Continue to develop and issue "short sheets" that summarize
existing guidance, ask the Regional Offices to suggest
candidates for additional "short sheets," and issue new guidance
first as "short sheets" and later, as necessary, as longer
reference documents.
2. Designate in each office a single official to take responsibility
for overseeing the planning and development of all technical
and policy guidance and ensuring that guidance issued by the
various offices does not conflict
3. Establish procedures to ensure that guidance is prepared and
updated in a timely fashion and systematically distributed to
all Superfund managers and staff in the Regional Offices.
4. Explain how Regional Offices and other interested parties can
distinguish between prescriptive and advisory elements of
Superfund guidance.
3-29
-------
IV. BRINGING INNOVATIVE TECHNOLOGIES TO BEAR ON
POLLUTION AT SUPERFUND SITES TO STRENGTHEN
REMEDY SELECTION
-------
CHAPTER IV
BRINGING INNOVATIVE TECHNOLOGIES TO BEAR ON POLLUTION
AT SUPERFUND SITES TO STRENGTHEN REMEDY SELECTION
INTRODUCTION: The ultimate success of the Superfund program depends on its ability
to select remedies that protect human health and the environment, that maintain protection
over time, and that minimize untreated waste. Treatment that reduces the toxicity,
mobility, or volume of the waste plays a vital role in achieving this goal. SARA requires
that EPA give a strong preference to such remedies in cleaning up Superfund sites. Use
of these treatment technologies, which include physical, chemical, thermal and biological
treatment, is the focus of this chapter.
The Superfund program must deal with several Congressional directives in
addressing use of treatment technologies. In addition to the requirement to give
preference to treatment remedies, are the requirements to employ "cost-effective" solutions,
and the requirements to ensure that remedies protect human health and the environment.
These objectives are difficult to balance because of the relatively early state of develop-
ment of treatment technologies and uncertainties about their performance and costs. It
is clearly more difficult to choose treatment as a remedy if there are uncertainties about
the effectiveness (in terms of reducing the toxicity of a waste), reliability, and cost-
effectiveness. Even the enforcement provisions of SARA complicate the decision to use
treatment technologies. EPA's objective is for the Responsible Parties at the site to
implement (fund) the remedy EPA selects, but these same parties are often reluctant to
agree to a remedy that carries with it significant uncertainty of success and potentially high
costs. Other SARA requirements, such as the 10 percent cost match by States present a
similar dilemma, because States have similar concerns about viability and cost.
An aggressive, broad based technology development initiative is needed to address
these issues so the SARA requirements can be met to the fullest extent possible. This
initiative must focus on reducing technical uncertainties, expanding the technology base,
and overcoming policy and regulatory barriers to use of treatment technologies. Specific
initiatives can be grouped into three program areas:
1. Reduce any non-technical barriers, such as regulatory and policy
constraints that inhibit use of treatment technologies.
2. Provide extensive technical assistance, expert advice, and information
transfer to make the best use of the information that is available now
and is being developed.
4-1
-------
3. Aggressively support the research, development, demonstration and
evaluation of new treatment technologies for Superfund sites
The findings and recommendations in this chapter fit into the three categories
above. Each addresses a separate issue or topic that is a statement of an area where
action is needed. Listed below is a summary of topics organized under the three general
categories above:
Reduce non-technical barriers to use of treatment technologies.
Topics:
1. Establish clear guidance for use of treatment
technologies
2. Management oversight of expanded use of treatment
in Superfund remedies
3. Remove regulatory and policy barriers to use of
treatment technologies.
4. Remove barriers to procurement of treatment tech-
nologies
Provide extensive technical assistance, expert advice, and information
transfer.
Topics:
1. Technical assistance to the regions for evaluation of
treatment technologies
2. Treatability tests of treatment technologies
3. Technical information dissemination on treatment
technologies
Aggressively support research, development, demonstration and evaluation
of new technologies.
4-2
-------
Topics:
1. Development, demonstration, and evaluation of new and
innovative treatment technologies
2. Expand research to develop new treatment technologies
3. Reduce institutional barriers to commercialization of
innovative treatment technologies
ESTABLISH CLEAR GUIDANCE FOR USE OF
TREATMENT TECHNOLOGIES
FINDINGS: Insufficient implementing guidance exists to support the regional project
managers in applying current Agency policies on use of treatment technologies, particularly
with regard to the criteria for technology selection.
DISCUSSION: Since the passage of SARA, EPA has been selecting treatment more
frequently as a clean-up remedy. During FY88, 72 percent of the final remedies to
control sources (e.g. lagoons, landfills, and soils) used treatment in some aspect of the
clean-up. The EPA can improve on this record by using treatment more often and more
effectively.
The proposed revisions to the National Contingency Plan (NCP) and Agency
guidance emphasize the importance of treatment to achieve reliable, long-term remedies.
"Advancing the Use of Treatment Technologies for Superfund Remedies", February 1989,
encourages treatment and innovative technologies by laying out the expectations for the
use of treatment, promoting use of technologies other than incineration and solidification,
stressing innovative technologies, and underscoring the value of treatability studies in the
remedial program. But other existing guidance does not emphasize treatment to the
extent needed. Examples include the guidance for Remedial Investigations/Feasibility
Studies (RI/FS) and guidance for Records of Decision (RODs).
These guidances need to express not only a clear policy preference for treatment,
but also need to provide specific implementation guidance that on a day-to-day basis helps
regions carry out the policy.
4-3
-------
The RPMs Dilemma
For this site I have three remedies that should work-that is, should protect human health.
One is a conventional containment approach and the other two use treatment. One of the
treatment methods involves chemical fixation and encapsulation; the other would yield
nearly complete destruction of the toxics at the site. Although that remedy provides the
most complete treatment and is the most reliable long term remedy, it is significantly more
costly - nearly two times the cost of the other treatment remedy, and six times the cost of
the containment remedy. SARA emphasizes use of treatment technologies that reduce the
toxicity and mobility of the waste, and I know the lower cost remedy may not be as reliable
in the long term, but I don't know how much more to spend on treatment. How do I deal
with this in applying the nine remedy selection criteria and choosing a remedy?
Regional project managers must apply the nine remedy selection criteria described
in the proposed NCP. Five of these criteria must be "balanced" in selecting a remedy.
These are long-term effectiveness, mobility or toxicity reduction through treatment, short-
term effectiveness, implementability and cost. Further guidance would help the project
managers balance these criteria, especially long term effectiveness and treatment versus
cost in making the final remedy selection.
Because of their heretofore limited track record, innovative technologies currently
involve greater uncertainty than more conventional remedies in performance and cost.
Project managers need to better understand the latitude they have to select such
technologies in the face of these uncertainties. One idea that has been discussed by the
regional offices is "contingent remedies", where an innovative technology is selected, but
backed-up by another remedy that would be implemented quickly if the primary remedy
does not meet requirements.
We believe that the realism that innovative technologies involve uncertainties and
higher costs has to be considered in developing the guidance. But as technology
development evolves further this will change. Thus, Superfund remedy selection guidance
should appropriately reflect the statutory preference for treatment and should encourage
the use of innovative technologies, which should increase as more experience with
innovative technologies is gained.
4-4
-------
RECOMMENDATIONS: Superfund policies and guidance should be reviewed and revised
to ensure that use of treatment technologies is given stronger emphasis in accordance
with SARA's directions. Guidance should emphasize the use of treatment technologies in
early actions to mitigate significant threats at sites, as well as in later actions to fully
clean up the sites.
MANAGEMENT OVERSIGHT OF ACTIONS TO EXPAND USE
OF TREATMENT IN SUPERFUND REMEDIES
FINDINGS: The wide range of activities at EPA related to technology development require
coordination and direction. In addition, regional implementation is sometimes inconsistent
among regions, and with headquarters guidance.
DISCUSSION: Cooperation from several offices is necessary to achieve greater use of
technologies. The Office of Emergency and Remedial Response (OERR) within
(OSWER) has the overall responsibility for managing the Superfund program. This Office
is responsible for the National Contingency Plan, providing policy and guidance, measuring
progress against program goals, and other management tasks.
The Office of Program Management and Technology (OPMT) was established in
OSWER to help integrate and coordinate activities between OERR, the Office of Solid
Waste, and the Office of Research and Development (ORD). An ongoing activity of the
technology staff in OPMT is joint responsibility with ORD for implementation of the
Superfund Innovative Technology Evaluation (SITE) program. The staff also provides
technology transfer of information on innovative technologies and limited technical
assistance to the Regions. Another joint effort with ORD is to help facilitate rapid, direct
technical contact between remedial project managers in the field and experts in the
Regions and ORD laboratories. The staff is also responsible for representing OSWER on
the Research Committee to help guide ORD activities and budget.
The activities of the Office of Program Management and Technology have provided
needed support, coordination and emphasis to development and use of treatment tech-
nologies. The functions of this Office appear to be needed and perhaps should be
strengthened to ensure appropriate leadership and coordination on removing barriers to
use of innovative technologies. A clear senior management focus is needed to ensure
success either as part of this group of another appropriate organizational arrangement.
4-5
-------
Another form of management oversight and coordination relates to the activities of
the regional offices. The Agency has been criticized for inconsistency among the regional
offices in selecting clean-up remedies. Often this criticism has incorrectly assumed that
the same remedy or clean-up level invariably should be chosen from site A to site B.
This fails to recognize the complexity of each Superfund site situation. The consistency
should come in the process that is used to select the remedy, the application of the nine
criteria that have been established for remedy selection, and the statutory mandate for
permanence to the maximum extent practicable and the use of treatment technologies.
Consistent application of these criteria is particularly important regarding selection
of treatment technologies. Because the selection process involves a balancing of the nine
criteria, the potential exists for inconsistency in the cost and other trade-offs relating to
selecting treatment versus other remedies. To ensure consistency, and to promote use of
treatment technologies, an appropriate level of headquarters oversight and review of
regional decisions is appropriate.
RECOMMENDATIONS: A senior program manager in the Office of Solid Waste and
Emergency Response should serve as "Technologies Czar" and should be responsible for
working with other offices to develop and implement actions necessary to remove barriers
to use of treatment technologies.
The Office of Emergency and Remedial Response should work with the Regions to provide
national consistency on procedures for selection of treatment technologies. The expanded
role for regional coordinators outlined in the previous chapter on improving remedial
work should include this task as a major activity.
REMOVE REGULATORY AND POLICY BARRIERS TO USE
OF TREATMENT TECHNOLOGIES
FINDINGS: Regulations developed under the Resource Conservation and Recovery Act
(RCRA) that are considered "applicable or relevant and appropriate" to Superfund may have
unanticipated cost or technical impacts. For example, new land ban regulations required
under RCRA that are based on "best available technology" may limit the potential treatment
technologies that can be used in Superfund clean-ups. Technologies such as solidification,
stabilization, and biological treatment may be precluded because they may not meet the highest
level of performance required by the land ban regulations. In addition, there is a tension
between the cost recovery goals of SARA and the selection of innovative treatment technologies
for site clean-up.
4-6
-------
DISCUSSION: Under the RCRA land disposal restrictions, hazardous waste is banned
from land disposal unless the waste meets specified treatment standards promulgated by
EPA. These standards, represent the Best Demonstrated Available Technology (BDAT)
for the waste. They are expressed as a maximum allowable concentration in the waste, as
a required treatment technology, or in a few instances, as an absolute ban. Under
CERCLA, Superfund remedial actions that generally address contaminated soil and debris
must comply with RCRA standards when they are applicable or relevant and appropriate
requirements (ARARs). Given the close similarity between the wastes and the activities
covered under CERCLA and RCRA, the land disposal restrictions will often be an ARAR
for Superfund.
Innovative technologies, such as biological treatment, soil washing, and solidification
will in many cases not be able to achieve the same levels achievable by BDAT tech-
nologies that are the basis for the land disposal restriction rules, and would therefore be
precluded from use at Superfund sites. This is true especially because the BDAT
treatment standard for many wastes, particularly organic waste, is based on incineration or
thermal treatment, which can achieve nearly total destruction, albeit generally at significant
cost. Although a treatment technology, such as chemical or biological treatment, may not
be able to attain the "best" level of treatment defined in the land disposal restriction
regulation, it may well be able to achieve a level that is protective for the site.
For some waste types, solidification technologies that do not actually destroy the
waste may not be able to meet land disposal restriction regardless of their effectiveness in
immobilizing the waste, since attainment of the standard for many wastes is based on "total
waste analysis," rather than an extraction and leachate test of the treated waste. Only
actual reduction in the concentration of the waste - as opposed to immobilizing it - can
achieve the standard. (Another RCRA rule that may restrict use of solidification at
Superfund sites is the Toxicity Characteristic Leaching Procedure-the extraction test used
to determine if a waste is hazardous. This test requires grinding of solids, so that a
significant part of the inherent benefits of solidifying a waste are defeated in the test.)
Even though solidification may not be equivalent to BDAT, for soil and debris with lower
concentrations of organics, or organics mixed with metals, it can be a protective and cost-
effective remedy.
Even if an innovative technology is capable of attaining a level comparable to the
BDAT standard, these technologies are by definition relatively unproven and untried.
There may not be sufficient information at the time the remedy is selected to make the
determination with confidence that a new but promising technology can attain the land
disposal restriction levels. Decision-makers may be reluctant to select an unproven
technology for fear that, after investing time and dollars, the technology cannot comply
with those levels.
4-7
-------
Making RCRA Regulations Fit Superfund
The rules written under RCRA, such as land ban, are not developed with the characteristics
and peculiarities of Superfund wastes in mind. In some cases these rules are difficult to
apply to Superfund wastes, or they create unanticipated - perhaps counterproductive -
effects. This is in part because the contaminated soils and debris typically found at
Superfund sites are different from the process waste streams that RCRA was designed to
address. Yet, if the RCRA rules are applicable (e.g. meet the regulatory definition of
applicability) or relevant and appropriate (i.e. not legally applicable but address a similar
situation and are well suited to the site), SARA says that they must be applied to Superfund
clean-up.
The land ban rules are a case in point. They would be "applicable" to any placement of
Superfund waste that meets the definition of a hazardous waste in Part 261 of the RCRA
regulations. For other "similar" wastes, they may be "relevant and appropriate". If land ban
applies, the treatment choices for the site are limited by the RCRA rule to the "best
demonstrated available technology", even though for contaminated soils other technologies
may provide sufficient, and more cost-effective treatment.
An important policy issue that can act as a barrier to use of innovative technologies
concerns the cost recovery provisions of SARA. EPA's goal is to have responsible parties
fund and conduct Superfund clean-ups. A related goal is to recover costs from responsible
parties to the maximum extent possible when site clean-up is performed by the Agency.
Responsible parties will frequently implement Superfund remedies, and the
willingness of responsible parties to consider innovative technologies may affect their use.
In some cases, the responsible parties conducting RI/FS may suggest innovative tech-
nologies themselves. The innovative technology may be less expensive than more conven-
tional technologies, it may provide the responsible party with an opportunity to test an
innovative technology with potential commercial application, or the responsible party may
believe the innovative technology is less likely to fail. In such situations, they bear the
risk of paying for any subsequent remedial action if the innovative technology does not
work.
In other situations, responsible parties may object to innovative technologies. If
EPA implements a technology that fails or that costs more than projected, then respon-
sible parties can be expected to argue that EPA is not entitled to full cost recovery. This
possibility tends to create pressures within the Agency that discourage the selection of
innovative technologies.
Although this potential for challenge exists at any site with potentially responsible
parties, remedies selected by EPA will be upheld in court unless arbitrary and capricious,
4-8
-------
or otherwise not in accordance with law. The Superfund law encourages the selection of
innovative technologies, and EPA should continue to select them where appropriate, the
threat of challenge from responsible parties notwithstanding.
RECOMMENDATIONS: The impact of RCRA land ban or other rules on use of
alternative technologies should be carefully evaluated to identify technologies that may be
precluded by the rules. The Office of Emergency and Remedial Response and Office of
Solid Waste must jointly explore ways to apply these rules that preserve their intent and
spirit without restricting use of viable treatment approaches for Superfund sites.
EPA should develop guidance that balances the goal of advancing innovative technologies
against the need to minimize challenges during cost recovery actions.
REMOVE BARRIERS TO PROCUREMENT OF
TREATMENT TECHNOLOGIES
FINDINGS: Current implementation of the Federal Acquisition Regulations (FAR) has
revealed unanticipated obstacles to the procurement of innovative and proprietary treatment
technologies.
DISCUSSION: Provisions in the Federal Acquisition Regulations (FAR) are reducing the
flexibility of the Superfund program in procuring innovative technologies. One concern
relates to treatability tests. FAR allows contractors to either prepare plans and
specifications or implement construction; but prohibits contractors from doing both
activities for the same project. Treatability tests are an important part of the remedial
planning process to evaluate, select and design remedial actions. Often there is a narrow
group of firms that can conduct treatability tests for particular technologies. Also, many
companies are not interested in conducting treatability tests if their participation precludes
them from bidding on the construction contract. A contractor performing a treatability
test during the remedial investigation/feasibility study (before remedy selection and design)
probably is not precluded from bidding on the construction contract. However, treatability
work is often needed during design to establish the operating parameters of the
technology. Innovative technologies are especially impacted because of the greater need
to assess feasibility and reliability.
4-9
-------
Another constraint is an Agency policy that restricts a contractor from working for
the EPA and a responsible party on the same site. The purpose of this policy to ensure
that a contractor does not end up working for two parties with different interests. Under
this policy responsible parties generally cannot use the same contractors or expertise that
was used by the EPA. At many sites there has been a cooperative effort between the
EPA and the responsible parties with EPA managing (i.e. funding) part of the work and
responsible parties agreeing to take over other parts of the site work. Specifically, if a
firm is retained by EPA, or an EPA contractor, to perform a treatability study during the
RI/FS or design phase, that firm is precluded for three years from working for the
responsible party during any phase of site activity including construction. Although there
is a waiver provision in the policy, the policy itself has proved to be an impediment for
conducting treatability tests, and therefore to selecting treatment technologies to clean up
the site.
There are also contracting constraints related to the procurement of proprietary
technologies. Federal Acquisition Regulations allow for sole source procurement, but this
is often a slow and uncertain process. Other approaches need to be explored to make
these proprietary technologies more widely available. The Agency may want to enter into
discussions with companies that own such technologies, regarding their willingness to sell
patent rights or offer licensing of their technology to other contractors. While it may at
first appear mundane, this proprietary principle stands as one of the major initial
impediments to the use of a wide range of emerging technologies. Procedures must be
developed to allow greater freedom in performing treatability studies and in the use of
sole-source procurements for proprietary technologies.
RECOMMENDATIONS: EPA should evaluate the provisions of the FAR to determine
where latitude exists to eliminate procurement constraints to utilizing treatment tech-
nologies. Procedures should be developed to allow greater flexibility in performing
treatability studies and in how "proprietary" technologies are defined for purposes of these
regulations.
TECHNICAL ASSISTANCE TO THE REGIONS FOR
EVALUATION OF TREATMENT TECHNOLOGIES
FINDINGS: Many treatment technologies for Superfund sites are new and technically
complex. In many cases, data on their performance are limited. EPA project managers are
not fulfy knowledgeable about the availability, performance and costs of these technologies.
As a result, they are often unable to confidently determine which, if any, of these technologies
can best clean-up a given site.
4-10
-------
DISCUSSION: Superfund projects are managed in the Regions by staff level project
managers supported by other regional staff and by contractors. The project managers
must oversee one or more contractors, manage project schedule and budget, communicate
with the public, and make decisions and recommendations on a number of legal, policy
and technical issues. The management demands of their jobs leave little time for them to
become expert in any given area, particularly one as complex and rapidly evolving as
treatment technology. They must depend on other experts to support them in technical,
legal and other areas.
In the past, they have relied heavily on their contractors for much of the technical
expertise needed in the project, but this has reduced their ability to properly manage and
direct the contractor. Furthermore, many contractors are not expert in new treatment
technologies because information is rapidly evolving and changing. Thus, neither the
regional project managers or their contractors are in the best position to stay abreast of
developments in new treatment technologies.
As a consequence, some new technologies that might be applicable for clean-up of
a site are never considered. Studies of those that are considered sometimes take longer
and cost more than they should, and in the end, the technology selected may not include
treatment, or it may be used less extensively than the Agency desires.
A technical assistance program can greatly assist regional project managers if it is
comprised of knowledgeable individuals, is well coordinated, and is focused on the key
decision points in the site evaluation process.
A Typical Situation
The contractor and regional project manager are meeting to discuss the contractor's work
plan for the RI/FS. In the first phase, the remedial investigation (RI) the contractor will
collect data to characterize the site. This must also include data that will enable them to
evaluate alternative remedies in the second phase, the feasibility study (FS). A key question
that must be answered now, or later in the RI, is what are the potentially viable
technologies that could be applied to this site. The answer will guide the field sampling
and data gathering efforts. Unfortunately, in the face of uncertainty, a long list of potentials
is often suggested. This adds up to time and costs in the study. Later, at the end of the
RI, a further narrowing of remedy alternatives must be made. How many technologies
should we evaluate during the feasibility study. Again, the list may be too long, or new
technologies with real potential may be left out. At the end of the feasibility study, the
even tougher job of weighing the information and recommending a remedy must be done.
("Vacuum extraction of organics looks like a good option, but has it ever been done with
these concentrations?") At each of these points the technologies at issue include several
innovative treatment technologies with very limited track records. What the RPM needs
and wants is a source of expertise and advise ~ someone whose job is knowing about
4-11
-------
innovative technologies, someone with "grey hair" and "dirty hands" from answering these
questions every day, someone that makes it their business to keep abreast of the rapidly
expanding information on these technologies. They need a team of technology experts.
The primary source of expertise in the Agency is the Office of Research and
Development (ORD). Within ORD, the Office of Environmental Engineering and
Technology Demonstration (OEETD) has been conducting research, development and
demonstration of waste treatment technologies for a number of years. This office currently
conducts the Superfund Innovative Technology Evaluation (SITE) program, which will be
discussed later in this report. Building on this core of expertise, ORD has the capability
to field a highly effective team of experts.
The strong feeling among Superfund staff is that this should be a dedicated team
whose sole job is assisting the Regions. Otherwise, competing job demands would interfere
with effective delivery of services. A model for this approach is EPA's Environmental
Response Team, which for several years has provided expert advice on response to
chemical emergencies and other time critical response actions.
For a technical assistance program to be effective, it must be focused on the critical
decision points in the site evaluation process and applied consistently and systematically.
It must become a routine part of the evaluation process. It must be applied first in the
earliest part of the evaluation to identify the potential range of technologies to be
evaluated; it must assist at intermediate points to evaluate alternatives and select an
appropriate technology; and it must assist in the final engineering design of the selected
technology.
RECOMMENDATIONS: EPA should establish nationwide technology support teams
within die Office of Research and Development, to provide on-site, project-by-project
technical advice to regional project managers on treatment technologies. These support
teams should work in conjunction with regional coordinators in the Superfund program
office to identify specific technologies or combinations of technologies to respond to
generic site situations.
4-12
-------
•
-*?*!Ł.?'iS>
ot
d best,
-------
* Se,
are
de.
are
fe
can
useful
is
ho,
*L«!**
freatj
fflienj
^COAfjVfg,
fo rh,°/
e
4-14
-------
TREATABILITY TESTS OF ALTERNATIVE REMEDIAL TECHNOLOGIES
FINDINGS: To evaluate the application of treatment technologies to particular sites, it is
essential to conduct laboratory or pilot-scale treatment tests on actual wastes from the site,
including, if needed and feasible, tests, of actual operating units prior to remedy selection.
These "treatability tests" are not currently being performed at many sites to the necessary extent,
or their quality is not adequate to support reliable decisions.
General treatability testing can be performed in the laboratory to determine the physi-
cal/chemical properties of wastes that make them suitable for certain technologies, and on a
site-by-site basis as part of the remedy selection process to determine the viability of a given
technology for that site. These approaches are complementary in that the general testing can
be used as a screening tool whereas site specific testing is required to know how a given
technology will perform at a particular site.
DISCUSSION: Treatability tests are laboratory or pilot-scale treatment tests on actual
wastes from a site, and are essential to evaluating alternative treatment approaches.
Without these tests it is difficult to determine how effectively a given technology will treat
wastes at the site. These tests are needed at virtually every site because the physical and
chemical nature of the waste, soil, and water mixtures differ greatly from site to site.
Treatability tests have to be conducted as a part of the Remedial Investigation/Feasibility
Study (RI/FS) - the study leading to the selection of a clean-up remedy at a Superfund
site.
The first part of the study, the Remedial Investigation, includes characterization of
the contamination at the site and a preliminary identification of technologies that may be
applicable to the site and should be further evaluated. The Feasibility Study includes
assessment of exposure and risk, determination of a clean-up level, and evaluation of
alternative approaches to clean-up the site, including various treatment technologies. At
the end of the Feasibility Study the Agency evaluates the data and selects a remedy to be
implemented, documenting their decision in a Record of Decision (ROD). This is followed
by the preparation of an engineering design of the selected remedy to set the stage for
competitive bidding.
Treatability tests are needed at two different stages of the above process. They
are needed during the Feasibility Study to help determine the potential effectiveness of
different treatment approaches that are being evaluated. Since the wastes differ widely
from site to site, these tests are essential to determining the feasible, and best, treatment
4-13
-------
approaches. Secondly, they are needed during the design phase. At this stage more
detailed treatability tests are needed to ensure the design parameters being developed
are correctly specified and that the effectiveness of a given technology within the remedial
situation can be counted upon by site managers.
Currently, both types of treatability tests are being done sporadically and often
inconsistently. Several factors contribute to the deficiencies in treatability tests. One is
simply that clear guidance has not been provided from Headquarters. Another is that
standard testing protocols are not available to ensure that the tests are done correctly and
consistently. Finally, the Regions have difficulty finding laboratories that are capable of
performing these tests.
A third type of treatability test that can be very useful is a study to characterize
generally the waste types (chemical and physical characteristics) that can be processed by
a given technology. These tests are not site specific, but instead can involve tests on
wastes from a variety of sites to determine the limits of a particular technology, or
determine types of technologies that can treat a particular waste. This information can
significantly aid the screening of a host of technologies during the Remedial Investigation
and Feasibility Study.
As a result of these problems, the analysis of treatment alternatives is not as
complete or effective as it should be. This has resulted in uncertainties about performance
and a tendency to avoid the risk of selecting treatment as a clean-up remedy.
RECOMMENDATIONS: EPA should establish a treatability assistance program within
the Office of Research and Development to perform treatability tests, develop standard
testing protocols, and maintain a data base of test results. This program should work
closely with the Technology Czar and Regional Coordinators in the Office of Solid Waste
and Emergency Response, and with the regional offices.
The Office of Emergency and Remedial Response (OERR) should provide policy guidance
to the Regions to ensure that treatability tests are emphasized, and should also provide
guidance on how to use treatability tests in selection of a clean-up technology.
4-14
-------
TECHNICAL INFORMATION DISSEMINATION ON
TREATMENT TECHNOLOGIES
FINDINGS: Information on performance and costs of alternative treatment technologies is
essential to EPA project managers and their technical advisors and contractors. Although
much data is being generated in the public and private sector, it is not being collected and
organized and is not widely available.
DISCUSSION: A broad spectrum of information on treatment technologies is being
generated constantly. Demonstrations under the Superfund Innovative Technology
Evaluation (SITE) program and treatability studies are two of many potential sources of
data. EPA, States, and other Federal agencies all generate significant amounts of
information on treatment technologies. This information is not being collected and
disseminated in any organized way. Thus, it is difficult for a regional project manager (or
contractor) in one region to know what has been done in another region, or by a State,
responsible party, or other Federal agency in testing, demonstrating, or applying new
technologies. To take maximum advantage of work that has already been done, the results
of that work must be assembled and distributed through an information clearinghouse.
Simply knowing whether anyone has tried using technology A to treat waste B in matrix
C, and having the results at hand and the name of a contact person can save needless
wasted effort and expense and avoid repeating past mistakes.
Another important benefit of data sharing is consistency. Only if all participants
are "playing from the same deck" of information can we expect decisions on use of
treatment technologies to be consistent.
Every regional project manager speaks of the need to have technical information
available. EPA's Office of Research and Development has recognized the need to
centralize data from their own studies and demonstrations, as well as from other sources,
and has begun to set up a clearinghouse for technical information on treatment tech-
nologies. This clearinghouse, called the Alternative Treatment Technology Information
Center (ATTIC), is still under development, but is scheduled to go on-line in the near
future. It will provide access to a wideirange of treatment technology data from EPA and
other sources. This clearinghouse is a strong step in the right direction and EPA should
give priority to supporting and fully developing its capabilities.
4-15
-------
In addition to having basic data on new technologies readily available, further
benefits can come from periodic interpretative summaries of the information. Such
summaries could "interpret" for project managers the overall status of development of
certain technologies, and the types of wastes and sites where they appear to be applicable.
Regularly updated technology handbooks would be the product of this effort.
Finally, information can be effectively transferred through more traditional means,
such as report distribution, conferences, seminars, and technical forums. These efforts
constitute a baseline that to date has been the primary means of activity information
transfers. Although these are essential activities, there is frequently criticism of the timing
and technical complexity of reports. Users want faster turnaround and management
summaries. Similarly, users generally prefer to attend technical forums to share informa-
tion with their peers as opposed to long, structured conferences.
RECOMMENDATIONS: The Agency should establish an information clearinghouse,
within the Office of Research and Development (ORD) containing data, reports and
references from EPA, State and other evaluations of technology performance. The
clearinghouse should include a computerized data base that allows access through
telephone inquiry, on-line computer access, and printed material.
ORD should continue, and expand as necessary, its current technology-transfer activities
of dissemination of technical reports, technology forums, seminars and conferences and
should ensure that this transfer is effectively directed at Regional Project Managers and
their contractors.
DEVELOPMENT, DEMONSTRATION AND EVALUATION OF
NEW AND INNOVATIVE TREATMENT TECHNOLOGIES
FINDINGS: There are not now enough proven, cost effective treatment technologies to
address the widely varying range of wastes and site conditions that Superfund encounters. As
a result, regional project managers cannot choose these remedies with enough confidence that
they will perform successfully. Technology demonstrations under the Superfund Innovative
Technology Evaluation Program (SITE) are addressing this need, but additional technology
development support is needed to further expand the range of available technologies. In
addition, information from these demonstrations must be produced in a more timefy way.
4-16
-------
Technology Jargon
The words used to describe the various stages of technology development can be confusing.
EPA uses the following terms to define these stages. "Available" technologies are fully
proven and in routine commercial use. "Innovative" technologies are fully developed
technologies for which cost or performance information is incomplete, thus hindering
routine use at hazardous waste sites. Innovative technologies require field testing before
they are considered proven and available for routine use. "Emerging" technologies are those
that have involved laboratory testing and/or some pilot scale testing, but this testing is not
yet sufficient to document the technical viability of the process. Obviously, the lines
between the various stages of development are not always sharp, but these definitions serve
as a way of communicating about the continuum of technology development.
DISCUSSION: The Superfund program needs a broad range of treatment technologies
to address the widely varying chemical and physical characteristics of waste/soil/water
mixtures found at sites. Although a lot of technology development and adaption is taking
place in the private sector, very few of these technologies have actually been used at
Superfund sites. Without this experience base, the performance and costs of these
technologies are highly uncertain. Project managers are reluctant to choose them as
remedies. To break out of this "chicken and egg" dilemma EPA has implemented a
program (SITE) to allow developers to bring technologies to Superfund sites to demons-
trate their performance.
The SITE program was established in the 1986 Superfund Amendments (311(b))
to help provide the treatment technologies necessary to implement new clean-up standards
in the law. The goal of the program is to maximize the use of alternatives to land disposal
in cleaning up Superfund sites by encouraging the development and demonstration of new,
innovative treatment and monitoring technologies. The program is implemented as a joint
effort between OSWER and ORD. ORD, through the Risk Reduction Engineering
Laboratory in Cincinnati, provides the personnel responsible for managing individual
projects.
Although the program has several components, the primary focus has been the
Demonstration Program. This addresses the demonstration and evaluation of innovative
full-scale or pilot-scale technologies that can be scaled up for commercial use. These tech-
nologies are considered to be fairly well developed and almost available for selection for
remediation of Superfund sites, but are tracking operating experience in the field on actual
wastes. Firms are accepted into the program through a formal annual solicitation.
Demonstrations usually occur at Superfund sites or under conditions that duplicate or
closely simulate actual conditions. The developers are responsible for transporting and
operating their equipment during the demonstration while EPA assumes the remaining
4-17
-------
costs for planning, sampling and analysis, and evaluation. Although the law allows funding
up to 50% of operating costs when developers can't pay, the terms are quite restrictive
and the Agency has not provided funds directly to any developers.
At the present time, approximately thirty projects are in various stages of demonst-
ration and/or evaluation. Over one hundred proposals were submitted in response to the
first three solicitations. The primary reason for rejecting proposals has been that tech-
nologies are not ready for field demonstration (i.e., inadequate data or no operational unit
available) or the technology is not applicable to Superfund problems.
Ten field demonstrations have been conducted and a like number are planned this
year. To date reports on six of these demonstrations have been published. A concern of
the Superfund program is that it is taking ORD too long to complete and distribute
project results.
Another component of the SITE program is the Emerging Technologies Program
for the investigation of technologies that are not ready for full-scale demonstration. The
focus is on the evaluation of units which show promise at the pilot or laboratory scale.
Two-year funding is available through competitive cooperative agreements. While
approximately seventy proposals were submitted in response to each of the first two
solicitations, the Agency will fund only about seven projects per year.
Although the SITE program is off to a decent start, it must be streamlined and
modified to more fully satisfy technology information and development needs. Oppor-
tunities exist to help evaluate and support technologies not covered in the existing
program. This includes additional emerging technologies which require further laboratory
testing and pilot scale development. It includes demonstrating additional innovative
technologies that require more data and other kinds of information before they can meet
current qualifications for the demonstration program. It also includes new innovative or
available technologies which are being used commercially for the first time at Superfund
sites-not as SITE demonstrations, but as the selected remedy for clean-up. This latter
type of "real world" performance data can be particularly important, especially in the areas
of process reliability and cost.
Other expansions have been suggested by those familiar with the SITE program.
Evaluating combinations of technologies is one example. Currently, the site program
focuses on individual technologies, but often two or more technologies must be combined
to treat a waste. For example, soil contaminated with metals and volatile organics might
require use of a thermal process to extract the organics, followed by use of a washing
process to chemically remove the metals. Each of these steps involves subsequent steps
to treat the extracted organics and metals. It may be difficult to find vendors willing to
team-up on site demonstrations, but to date a focused effort has not been made to do so.
4-18
-------
There is also a need to expand the range and types of technologies that are
currently participating in the program. While thermal and solidification technologies are
well represented, others such as biological, soil washing, and physical/chemical treatment
are sparse. This is not the fault of the program since the solicitations are open. But to
help expand the technology base, special outreach efforts may be needed to bring other
technologies into the program.
The lesser focus on emerging technologies in the SITE program has largely been
a matter of program priorities. Trying to get innovative technologies demonstrated in the
field has appropriately been of higher priority than further development of emerging
technologies. But if emerging technologies are not fostered, the pipeline of technologies
ready for demonstrations could dry up. One valuable program that is already under
development by ORD is the establishment of a "test and evaluation center" where vendors
can bring emerging technologies for independent (EPA) testing. This facility will be
permitted for this purpose, thus eliminating that as an issue for the vendor. It is important
that the current ORD effort be given priority so that the full potential of this facility can
be realized in a timely way.
RECOMMENDATIONS: The Superfund Innovative Technology Evaluation Program in
the Office of Research and Development should be expanded to demonstrate and evaluate
more new technologies, and revised to provide more rapid dissemination of results.
Suggested expansions include:
1. Evaluate performance and cost of technologies already being
used at Superfund sites.
2. Conduct additional demonstrations of innovative technologies.
3. Support development of emerging laboratory and pilot scale
technologies.
4. Establish a fully permitted and licensed test and evaluation
center.
5. Evaluate combinations of technologies in addition to individual
technologies.
6. Provide rapid reporting of demonstration results through
performance bulletins and by placing results in an information
clearinghouse. Reduce production time for full reports.
4-19
-------
7. Suggest ways to eliminate internal barriers to the introduction
of new technologies into the Superfund program.
EXPAND RESEARCH TO DEVELOP NEW TREATMENT TECHNOLOGIES
FINDINGS: Although many new technologies begin in private-sector research laboratories,
EPA supported research is a necessary and important ingredient to expanding development of
new treatment technologies due to gaps in private research.
DISCUSSION: Continued research is needed to promote the development of new
technologies suitable for cleaning up contaminated sites. For example, additional research
is needed on in-situ removal and recovery of organic contaminants as well as methodolog-
ies to remove these contaminants from groundwater beneath the site. The effectiveness,
costs and cross-media impacts of these technologies must be investigated. Other research
is needed to provide technologies for the removal of contaminants from soils, sludges and
sediments. In order to be cost-effective, the technologies developed must return a large
portion of the cleaned soil to its original site with only the concentrated contaminant to
be treated or removed. Several additional treatment technologies should be developed to
determine their effectiveness for soil and debris clean-up. Improved combustion
technologies for destroying contaminants in soil must also be developed.
To a large extent private sector research is being relied on to develop the
technologies needed to clean-up Superfund sites. The profit potential of successful
technologies provides a natural incentive for this research. Many new technologies have
come to the market in this way. But private sector research does not completely address
the needs for new technologies. Since research can be costly, with payback many years in
the future and uncertain at best, private research is often limited to just a handful of
technologies believed to offer the greatest potential for commercial success. Some
companies conduct little or no research, waiting instead for someone else to successfully
prove a new concept that they can further develop.
Given this situation, and the need for many new technologies to match the wide
range of waste types and mixtures at differing sites, continued EPA supported research is
needed. A recent report on EPA's research activities by the EPA Science Advisory Board
emphasized the need for a stronger long range EPA research program. To carry out this
research the Agency should continue its practice of support to universities and other non-
profit institutions and should devote some of its own people and laboratory facilities to this
effort. To the maximum extent possible, EPA should focus its research on areas not
adequately being addressed by the private sector.
4-20
-------
Congress passed a new law in 1986 that greatly improves the potential for EPA
research to be adopted and commercialized by the private sector. This law, the Federal
Technology Transfer Act, P.L. 99-502, allows the laboratories of Federal agencies to enter
into cooperative R&D agreements with private companies, universities and state and local
governments. The laboratories may enter into a variety of cooperative agreements and
may accept, retain and use funds, personnel, services and property from collaborating
parties in the interest of R&D and commercialization of issuing technologies.
ORD has successfully implemented this new authority to license its patented
technology for the control of emissions from coal-fired boilers. A number of other
promising licensing and joint-venture opportunities are currently under negotiations or
being explored.
RECOMMENDATIONS: In-house and university research programs should be expanded
in a few, targeted areas where private research is lacking. The Office of Research and
Development should convene an advisory group of industry and academia to develop a
priority list of areas where expanded EPA research is needed and where the private sector
is not currently engaged. EPA should actively conduct or support research in areas where
there is limited private sector involvement.
REDUCE INSTITUTIONAL BARRIERS TO COMMERCIALIZATION
OF INNOVATIVE TREATMENT TECHNOLOGIES
FINDINGS: Many companies and entrepreneurs who develop technologies in their laborator-
ies are unable to successfully commercialize them even though they may be technically sound.
This is often due to lack of financial resources, unfamiliarity with the marketplace, or
inexperience in dealing with government requirements.
DISCUSSION: A series of planning, marketing, financing, regulatory and other require-
ments must be addressed before a technically viable treatment technology becomes
commercially available. While well established, financially sound companies may be
experienced in addressing these issues, many of the newer and smaller firms that often
develop treatment technologies are not. Adding to the problem is the complexity of the
market for these technologies.
There are great market uncertainties caused by changing statutes, as well as State
and Federal regulations. The potential for the health of neighboring populations to be
negatively affected in a site cleanup also presents potential legal and financial liabilities.
4-21
-------
The technologies are inherently costly, so that even building a prototype can require
substantial financing; but lenders are reluctant to put up capital unless they see test data
substantiating technical viability and a credible marketing plan. This creates a classic
"chicken and egg" problem.
There are no easy solutions to these problems, but without a helping hand many
promising technologies may never make it to the marketplace. EPA has recently
embarked on one program that holds promise for providing the help needed.
The Office of Research and Development has recently established a unique
partnership of government, industry, and academia that is dedicated to assisting with the
commercialization of new environmental technologies and products. This partnership is
called the National Environmental Technology Applications Corporation (NETAC). This
new partnership, which is still under development, proposes to provide a wide range of
commercialization assistance, including business development (market analysis, financing
analysis and referral, and planning), regulatory assessments and coordination, patent and
licensing support, and related services. The partnership will also provide facilities where
companies can test and evaluate their technologies to generate the technical data needed
for financing and marketing. Education, training, and technology transfer are other
planned activities for NETAC.
This new partnership offers great potential for bridging the very difficult commer-
cialization gap faced by innovating entrepreneurs. This prototype partnership should be
aggressively developed and given a high priority. Although the NETAC charter is broader
than hazardous waste technologies, priority should be given to some early efforts in the
hazardous waste area. If NETAC is successful, it may serve as a model that can be
duplicated in the nation.
RECOMMENDATIONS: The Office of Research and Development has recently
established a partnership of government, industry, and academia called the National
Environmental Technology Applications Cooperation that is dedicated to commercializa-
tion of new technologies and products. It should receive strong support and emphasis
within the Agency to ensure rapid, full implementation.
4-22
-------
V. AN AGGRESSIVE PROGRAM OF COMMUNITY INVOLVEMENT
-------
CHAPTER V
AN AGGRESSIVE PROGRAM OF COMMUNITY INVOLVEMENT
INTRODUCTION
In a very fundamental sense, EPA's Superfund staff are working for the people who
live near Superfund sites. These people « "the affected public" - are the ones whose
health may be threatened by contaminated soils or drinking water. They have often had
to put up with the site, for years, unsure of its effects. Typically, the initial EPA
investigations of the site raise both fears and hopes: fears that the risks may be worse
than they had thought, and hopes that the government will finally do something about it.
EPA owes these people action: we owe them accurate, timely, understandable
information about the site, its risks, and what we are doing, and we owe them a chance
to influence what will be done about the contamination. EPA must communicate: we
must listen, and we must respond.
As discussed in other chapters of this report, the public finds the pace of Superfund
cleanups to be unacceptably slow. At some Superfund sites, however, the public's
relationship with EPA has still been quite positive. At these sites, EPA staff met with the
public early and often. They clearly explained to the public the reasons for the length of
time until cleanup, and they shared the results of their studies along the way. The public
developed a deeper understanding of the problems of contamination, what can be done
about them technically, and how EPA will make cleanup decisions. EPA staff now
understand the public's concerns, and have found ways to respond to them.
At other sites, frustration has been the more typical response. To the public, the
"Super" "Fund" conjured up images of quick cleanup, with Uncle Sam footing the bill. But
the reality was quite different. EPA took some years to add these sites to the Superfund
list after its initial investigation of them. Long and complex studies came next. The
companies that caused the pollution in the first place began to play a major role in
carrying out first the studies and then the cleanup. Citizens became frustrated by the
delays and doubted the information produced by the studies. EPA went into long
negotiations with the companies, leaving citizens in the dark about what was going on.
Frustrations mounted. Citizens began to ask whether EPA is more interested in protecting
them, or making a deal with the companies.
5-1
-------
A Tale of Two Sites
In Woburn, Massachusetts, there are two Superfund sites that illustrate contrasting
approaches to the community and contrasting results.
At the Industriplex Site, EPA communication with the public virtually ceased during years
of protracted negotiations with the PRPs before the design of the remedial action. Angry
citizens involved their congressmen and senators, and attracted day after day of critical
coverage in the local paper. When EPA finally held public meetings on its proposed
actions, the room was packed with loud and hostile crowds.
At about the same time, EPA was also working on a nearby site, a contaminated
municipal wellfield known as "Wells G and H". EPA's Remedial Project Manager worked
actively and aggressively to inform the community there about the status of the site and to
involve the citizens in making decisions about cleaning it up. She sent out regular fact
sheets and press releases, and she met frequently with the public and the local citizens
group. The site mailing list was expanded to included hundreds of residents, who were
invited to join a work group to represent citizens' preferences during the earliest stage of
developing the Feasibility Study.
When the study was about one-third complete, EPA held an information session to
familiarize the community with the remedial technologies and to solicit their initial reactions
and ideas. After this extensive community involvement, the public meeting on the proposed
cleanup plan was a constructive working session. Fifty people listened attentively and
offered cogent comments as partners in the process, rather than as angry adversaries. EPA
is now writing the Record of Dec^ion to choose the final remedy.
In reviewing EPA's record in community involvement, the task group combined
case studies and interviews. We examined in detail events at four sites: the Koppers and
McColl sites in California, the Toms River site in New Jersey, and the Industrial Excess
Landfill site in Uniontown, Ohio. We interviewed citizens, local officials, state staff, and
EPA staff at each of these sites. At a national level, we interviewed the staff of several
national environmental organizations, and participated in joint discussions with staff of the
House and Senate. We also interviewed EPA staff and managers in the regions and in
Headquarters. We organized our work around five major topics: citizen views of PRPs,
citizen involvement in EPA decisions, citizen access to information, EPA's communication
with citizens, and the Technical Assistance Grants (TAG) program. In total, our
conclusions are based on over 90 interviews.
5-2
-------
EXPANDING THE PUBLICS ROLE IN AN "ENFORCEMENT FIRST1 PROGRAM
FINDING: Citizens see a fundamental inequity between their role in the Super/Una" program
and the role of the potentially responsible parties ("PRPs"), who have more access to EPA, and
more information, expertise and resources with which to fight for the decisions that they want.
DISCUSSION:
Citizen perspective on PRPs, in a Nutshell
We didn't cause this problem, but we're living with it. We have a right to influence cleanup
decisions. The company that caused the problem will have much more influence than us
on these cleanup decisions. They will have high-powered attorneys and technical advisers
who speak EPA's language. They have access to information that we do not have, and they
have lots of time and resources to devote to influencing EPA's decision. This situation is
unfair to us.
Citizen Concern About PRPs
The most consistent finding from our case studies and interviews is the strongly held
belief of citizens that the polluters who caused a Superfund problem cannot be trusted to
study the problem objectively or to clean it up. "There is a built-in conflict of interest for
PRPs," said one citizen.
Compared to citizens, PRPs are seen as having unfair influence on cleanup
decisions. They have easy access to EPA through technical meetings and negotiation
sessions. PRPs often directly control data on which remedial decisions are based by
conducting the Remedial Investigation and Feasibility Study, subject to oversight by EPA,
which is seen as less than consistently effective. Citizens see themselves systematically
excluded from technical and negotiation sessions with PRPs. The formal views that citizens
express during the comment period on a proposed remedial action have much less weight
than the views of PRPs, because the PRPs can frame more effective technical arguments
and because potentially responsible party willingness to carry out a remedial action may
affect EPA's choice of remedy.
At all four sites examined in this review, the role of PRPs in site investigation and
cleanup was an important issue. Citizens near McColl cited Exxon's track record in the
Alaska oil spill as an example of corporate behavior that they feared. At McColl, EPA
carried out the remedial investigation and feasibility study, but PRPs may carry out the
5-3
-------
remedial action. Exxon itself is not a PRP at the site, but is a symbol to the citizens of
their reasons not to trust corporations to do environmental cleanup. At the Koppers site
in northern California, citizens mistrust the operator of the site, and are concerned about
a long history of pollution problems caused by the site. At the Industrial Excess Landfill
site in Uniontown, Ohio, there is deep animosity between the active citizen group and the
PRPs. When the PRPs rejected a citizen request for a direct Technical Assistance Grant
by sending the group an unsigned letter bearing no company's identifying letterhead,
citizens saw this as brusque and insensitive.
At the Toms River, New Jersey, site, citizens are opposed to Ciba-Geigy's activities,
but the relationship between citizens and the Company is somewhat different than at the
other sites. Citizens were strongly opposed to letting the Company conduct the Remedial
Investigation and Feasibility Study, but they are not so opposed to having Ciba-Geigy carry
out the remedial action itself. Of the four case studies, Toms River is the only site where
citizens seem comfortable with the idea of PRP cleanup work. There seem to be four
reasons why they tolerate PRP involvement. First, EPA has been heavily involved with the
site and has worked directly with the citizens. The citizens do not appear to question
EPA's effectiveness or trustworthiness. Second, Ciba-Geigy funded a direct "Technical
Assistance Grant" to the citizens, at the urging of EPA Region 2. Third, Ciba-Geigy has
given citizens direct access to information about the site. Fourth, the citizens have been
meeting directly with EPA and Ciba-Geigy to discuss their technical concerns. Even with
this background, however, citizens still expressed their fear that Ciba-Geigy would have
undue influence on the impending cleanup decision.
Citizen Concerns about EPA
EPA staff often are puzzled about why the public seems not to trust them. They
see themselves as the people hired to carry out the Superfund law, representing the public
interest in clashes with the responsible parties. But many citizens see EPA staff quite
differently. They have a skeptical view of government generally, and they often have an
unfavorable impression of Superfund, drawn from press coverage and the barrage of
criticism leveled at the program nationally. In their initial encounters with EPA, their
expectations for quick action are not met. They may wonder whether their idea of
cleanup is the same as EPA's. They may be somewhat overwhelmed by technical
complexity and resent losing control to the "experts". In that setting, citizens may not be
willing to completely trust EPA to represent them in confidential negotiations with PRPs.
RECOMMENDATION:
If EPA is to gain public support for an "enforcement-first" approach to Superfund
cleanups, EPA must correct this imbalance by giving citizens a greater role in Superfund
decisions. It is critical that EPA have -- and be seen to have - a fair and open process
5-4
-------
that gives citizens some measure of control over what will happen. Three major sections
of this chapter contain specific recommendations that are important in correcting the
citizen/PRP imbalance. Briefly, they cover these points:
1. EPA should involve citizens more extensively in the process of making
decisions about clean-up at Superfund sites, including innovative ways of
bringing citizens and PRPs together to build a consensus (see pages 5-5 to
5-8).
2. EPA should assure that citizens have access to the same technical
information about the site that EPA and the PRPs have, (see pages 5-13 to
5-15).
3. EPA should reform the Technical Assistance Grants program to eliminate
barriers to their use (see pages 5-16 to 5-22).
In addition, EPA should strengthen its oversight of responsible party work. This issue is
covered in Chapter Two. Its importance is underlined here, however, because of the
emphasis placed on this point by citizens.
INVOLVING CITIZENS IN DECISIONS
FINDINGS: Citizens question whether they actually influence EPA decisions, or whether
EPA's community relations program is realty just "sophisticated public relations." EPA
managers have mixed feelings about public involvement. Some are strong supporters of it;
others object because of philosophy, cost, and delay.
DISCUSSION: Some critics of EPA charge that EPA's community relations program is
primarily a "public relations" program rather than a "public involvement" program. They
mean that EPA is concentrating on giving communities information, not on finding ways
to learn about their concerns and give them some weight in EPA's decision-making
process. People do give EPA high marks for the quality of the information it puts out, but
they want EPA to make the communications process a two-way street.
Philosophy
Some EPA managers believe strongly in the role of citizens in decision-making. A
regional manager said: "Better community relations will always lead to better site work.
The public is our best critic and judge of acceptable performance." A Headquarters
manager said: "An open process leads to better decisions. It lets citizens add fresh
5-5
-------
information to the process. It forces EPA to defend its assumptions, judgements, and
decisions, and it exposes their weaknesses." However, other EPA managers believe
strongly that Superfund decisions are primarily scientific, and that citizens are unlikely to
be able to raise the kinds of evidence or questions that they will find persuasive. These
managers tend to stress EPA's obligation to inform and educate the citizens, but they tend
not to give citizen concerns substantial weight in their decisions.
Cost
Allowing people to participate meaningfully in Superfund decisions requires
extensive resources, because the decisions and the problems are so complex. Some
managers and RPMs who support more extensive public involvement are simply unable to
do much more without sacrificing other important objectives of the program, such as
technical oversight of PRP or contractor work.
Delay
EPA is frequently criticized for being "bean-driven" ~ that is, for putting deadlines
ahead of other important considerations, such as citizen concerns. At the same time, EPA
is also criticized for not meeting its deadlines and for the slow pace of the program. This
tension is intrinsic to Superfund. We found RPMs uncertain about the relative priority of
citizen concerns and adhering to schedules. One RPM said: "What does Headquarters
really want? Do they want us to meet deadlines no matter what, or do they want us to
be responsive to citizens?"
A good example of this tension is when citizens ask for more sampling in order to
better understand the contamination at a site. If this request is made after the remedial
investigation is completed, responding to it usually means delaying the schedule for the
remedial decision. The additional cost of sampling can also be a constraint. While some
requests for additional sampling may have little technical validity, others may be warranted,
but site managers are unable to respond to them because of limited budgets or impending
deadlines.
Another practical problem confronting site managers is how much time they should
allow for public comment and response in their planning for ROD deadlines. While some
sites with little or no controversy can be handled with the minimum 30 day comment
period, experience has shown that a 60 day comment period is much more reasonable
whenever citizens or PRPs are "actively involved.
5-6
-------
RECOMMENDATIONS:
The Administrator should strongly support increased citizen involvement in Superfund
decisions, dedicating the resources necessary for greater citizen involvement, and accepting
occasional delays as a result
EPA managers and staff should listen carefully to what citizens are saying, take the time
necessary to deal with their concerns, change planned actions where citizen suggestions
have merit, and then explain to citizens what EPA has done and why.
Regional managers should factor adequate time for public comment and response into
their planning for ROD deadlines.
The standard public comment period on EPA's proposed plans should be 60 days (rather
than 30), whenever citizens or PRPs request it
Regions should have a discretionary fund that they could use to fund additional work
necessary to respond to citizen concerns.
FINDING: EPA cannot always do what citizens ask. Citizens do not always get clear,
candid explanations from EPA about its actions, however.
DISCUSSION: There are limits to EPA's ability to respond to citizen concerns. The
law can be an important constraint. Sometimes EPA clearly lacks authority (oil and gas
problems are excluded from Superfund, for example). Sometimes EPA believes it has
sufficient legal authority to take an action, but the PRPs challenge that authority. For
example, at the Koppers site, citizens wanted air monitoring, but the PRPs challenged
EPA's legal basis for requiring it. EPA eventually did the monitoring, and a court ruled
in EPA's favor on the challenge by the PRPs. Despite this effort, relations with the
community remain strained.
Clear, candid explanations of the reasons for EPA's decisions are often a missing
element in EPA's relationships with citizens. Responsiveness summaries are a formal tool
for providing such explanations. However, these summaries often seem to citizens to be
defensive legal exercises by EPA to prevent legal challenges to its decisions.
RECOMMENDATION: Whether EPA can do what citizens ask or not, we should always
provide them a clear explanation of the basis for our decision. A responsiveness summary
should reflect a genuine attempt to come to grips with citizens' questions and concerns;
it should not appear to be an advocacy brief piling up evidence for why EPA's original
decision was the only possible one.
5-7
-------
FINDING: The earlier that EPA establishes a working relationship with citizens near a site,
the greater chance there is for trust and confidence to develop between the parties.
DISCUSSION: It has long been a principle of EPA's community relations program that
early involvement is critical to a successful working relationship with the public near
Superfund sites. Citizens are still concerned, however, that they are sometimes brought
into the process later than they would like. One important early point for citizen
involvement is EPA's initial investigation of a site (the Preliminary Assessment/Site
Inspection). Another early point of concern to citizens is the initial development of EPA's
community relations plans at sites on the National Priorities List.
The selection of the cleanup remedy is not the only important decision made at a
Superfund site. Significant decisions are made throughout the Superfund cleanup process.
Key decision points include (1) the scope of the Remedial Investigation (what
contaminants to look for); (2) screening alternatives for the Feasibility Study (what ways
are there to clean up the site); (3) what treatability studies are needed; (4) the selection
of remedy through the Record of Decision; and (5) any modifications to the selected
remedy as a result of the remedial design work.
One Headquarters manager suggested that EPA should have a "docket" approach
to its Superfund decisions at each site. By that, he meant that EPA should add documents
to the administrative record as they become available, and be open to receiving comments
on the accumulating information and studies about the site. This approach would allow
citizens or PRPs to provide comments at any stage of the Superfund cleanup process,
rather than just waiting for the formal comment period on the proposed plan.
RECOMMENDATIONS:
EPA managers and staff should plan for citizen involvement at each stage of the
Superfund process, beginning with the initial investigations at a site.
EPA should discuss site findings and decisions as they are developed, not only at the end
of the Feasibility Study.
While a formal comment period is required only at the Proposed Plan stage, EPA should
make documents available to citizens and to PRPs throughout the cleanup process, and
be open to receiving comments continually as well.
5-8
-------
MAINTAINING CONSISTENT COMMUNICATION
FINDING: EPA's communication with citizens near sites is not as frequent as site managers
and community relations staff think is necessary. Citizen expectations of what constitutes
regular and consistent communication are even higher than what EPA thinks is "frequent".
DISCUSSION: Communicating to the public is the strongest part of EPA's community
relations program. Fact sheets are widely used to let the public know what is going on,
and to explain the complexities of site contamination, risks, cleanup options, and EPA's
study and decision procedures. EPA Headquarters has written some excellent fact sheets
explaining the Superfund program generally, and regional fact sheets on particular sites are
often very good. EPA staff meet with people in their homes, and they use small group
workshops, public meetings, and public hearings, as appropriate. EPA Headquarters has
sponsored training on community relations and communication skills; a course on risk
communication is the newest offering.
We found, however, that regional community relations staff and site managers
believe our communications program does not start early enough and is less consistent and
effective than is necessary. As a result, EPA is not meeting citizen expectations for
consistency and continuity in communications.
Resource Problems
Limited time and resources for regional staff keep them from doing the
communication they think necessary and essential. Site managers and community relations
staff are concerned that EPA may be letting some potentially serious conflicts develop with
communities because they cannot get out to the sites early enough or frequently enough.
They must spend their time on sites with long histories of citizen concern and on sites
going through the formal public comment process at the proposed plan/Record of Decision
stage. At other sites, their contact with citizens is irregular at best.
Fixing this problem is not easy. It is simply part of the larger problem of resources
for all the staff that implement Superfund in the field. Staff we talked to believe that the
site managers and the community relations staff need more time to devote to
communications. (The division of responsibility for communicating with citizens varies
from region to region. In some cases the site manager carries the primary responsibility,
while in other cases the community relations staff does.)
5-9
-------
In addition to increasing EPA's own staff, there are a few other ways of increasing
the resources devoted to communications with the public:
1. Regions are hiring Senior Environmental Employees to work
with the TAG program. These people are retirees hired by a
senior citizens organization, such as the American Association
of Retired Persons, to work for EPA These employees do not
count against staffing ceilings, and EPA's experience in using
retirees to represent the Agency has been quite good in the
asbestos program. All the regions have contracts in place to
hire such staff as they need them. Regions could experiment
with using these staff for more extensive communications work
besides TAGs.
2. Where sites are located at some distance from EPA's regional
office, it is usually difficult for EPA staff to see citizens in
person very often. As a variation on option #1, EPA could
hire retirees who live in the community near the sites. These
employees could work on a part-time basis to inform local
officials, citizen groups, and other community leaders about
developments at the site.
3. Using state or local officials to represent EPA at sites is
another way of coping with the limits to EPA resources and the
distance problems. At the Bunker Hill site in Idaho, for
example, a local health officer of the state health agency serves
as the community representative for both EPA and the state.
EPA supports this position with grant money to the state. One
problem at some sites, however, is that EPA and the state (or
the local government) sometimes disagree strongly about the
appropriate course of action at a site. Such disagreements
make it both difficult and inappropriate for a state or local
official to represent EPA
4. EPA also uses contractors to support its community relations
work. The results are mixed. In some cases, where EPA has
used contractors to communicate directly with the community,
citizens have resented not being able to speak directly to EPA.
EPA often uses contractors to interview citizens as they prepare
community relations plans, however, and this practice is likely
to continue, given EPA's staffing problems. Contractors can
also be used to write fact sheets, provide logistical support for
public meetings, and so forth. EPA's experience is that
contractor support is most effective where the contractors can
5-10
-------
ensure the continuity of their staff. In that case, the cost of
using a contractor to draft fact sheets (or other short
turnaround tasks) declines, and the quality goes up. Continuity
is so important to communications, however, that more
contractor support for community relations cannot be relied on
to solve the "consistent communication" problem described
above. We must do the bulk of this important work ourselves.
Citizen Expectations
Citizens' perceptions of what constitutes regular and consistent communication are
not the same as EPA staffs. We found that citizens expect more than EPA staff, even
though EPA staff members think they should be doing more than they are able to do.
Where EPA has a successful relationship with a community at a controversial site, there
is a consistent pattern of regular, frequent communication with the community.
RECOMMENDATIONS:
The Administrator should increase the number of site managers and community relations
staff to allow more frequent communication with the affected public.
EPA should firmly establish communication as a high priority for Superfund managers,
site managers, and community relations staff.
Regions should experiment with using Senior Environmental Employees more extensively
in Superfund. Where sites are some distance from EPA offices, Regions can hire retirees
who live in the communities near the sites to take questions and provide information.
EPA should consider using state or local officials to represent EPA at sites as another
way of coping with the limits to EPA resources and the distance problems.
FINDING: Frequent turnover of EPA staff is hurting EPA's communications with citizens
near sites.
DISCUSSION: Citizens are frustrated by turnover in EPA staff. Communities complain
that they have to train EPA staff about the site. The history of the site matters a great
deal to site residents; new government staff do not know the history. Communities feel
that they must rebuild their relationship with the new staff, and reeducate them about
their concerns. The turnover of any key staff can be disruptive ~ EPA's site manager or
community relations staff, state staff, or contractors. Citizens often view them all together.
5-11
-------
Some of this turnover is inevitable. The turnover of site managers in some regions
has been quite high, and similar turnover patterns for community relations staff also exist
in some regions. Even where staff are not leaving, there are continuity problems. As the
number of sites and the number of EPA staff have increased, some existing staff shift part
of their workload to new people. EPA tends not to think of this as staff turnover, since
no one has left, but the effect on citizens is the same. Both shifts in workload and staff
departures create real problems for EPA's relationship with site residents.
Some regions have dealt with the turnover problem by emphasizing communication
with the community. They hold a meeting with the community where the old site manager
introduces the new site manager, and explains his or her departure. Some regions have
sent supervisors to such meetings to assure the community of continuity. If a meeting is
not possible, some departing site managers have written a letter to the community
explaining their departure, introducing their replacement, and explaining the reasons for
the switch.
Turnover also creates a continuing need for training. The turnover rate of site
managers and community relations staff is high enough that only the more experienced
regional staff are likely to have received EPA's community relations and communications
training. Training is another area where the broader problems for RPMs overlap with
those of community relations. New site managers in particular face a formidable list of
demands for a variety of technical, administrative, and safety training; communications
training is one significant part of that mix.
RECOMMENDATIONS:
EPA should be sensitive to the problems that staff turnover create for the community,
and should preserve the continuity of staff assignments as much as possible. For
example, these problems should be considered as costs in deciding whether to reorganize.
EPA managers should try to keep continuity and site history on the team if one team
member must be replaced. For example: if the site manager is new, the community
relations coordinator probably should not be switched.
EPA should educate new staff about the site's history and the community's involvement
and concerns, and the importance of those concerns.
EPA should communicate staff changes to the community and demonstrate that their
concerns are understood.
EPA should provide communications training (both speaking and listening) to all
Superfund staff who deal directly with the public.
5-12
-------
ENSURING CITIZEN ACCESS TO INFORMATION
FINDING: Citizens cannot consistently get the information they request. Citizens are
concerned that their access to information is much less than that of PRPs.
DISCUSSION: Ensuring citizen access to information is an important goal, but it is
sometimes difficult to put in practice. We found examples where EPA staff had worked
out practical ways of providing citizens direct access to information about a site. We
found other cases where citizens perceived EPA as holding back information from them.
There are a few damaging examples of barriers to citizen use of information, such as
information repositories only open during the working day, high copying costs, or refusal
to release information until Freedom of Information requests were filed. While these
barriers are the exception, not the rule, they should not exist at all.
One major reason why EPA staff sometimes withhold information from citizens is
that EPA wants to be sure that data are accurate, and that reports done by contractors
do not contain misstatements of EPA policy or plans. Yet the delay caused by EPA's
review seems to citizens as an attempt to cover up information, raising questions about
EPA's motives. Explanations about EPA's need to review or correct contractor work
products only cause citizens to wonder why EPA is using contractors at all, if they can't
be trusted to do good work. EPA staff thus face a tough dilemma ~ they must choose
between possibly having to explain errors in an unreviewed draft, or losing trust by being
accused of withholding information from the public.
Success story: Bowers Landfill, Circleville, Ohio
EPA Region 5 staff gave citizens a schedule of "deliverables" -- the reports and data that
the PRPs were sending to EPA. The citizens were told which products they would get
immediately (at the same time that EPA got them from the PRPs conducting the study),
and which products they would get on the second draft (to allow EPA review time to assure
that the products were accurate). Citizens then knew exactly what information was being
produced about the site, and when to expect it.
Another important reason why EPA staff are sometimes unresponsive to citizen
requests is that the quantity of information is large, and the costs of providing easy access
to it are significant. Hence, EPA staff sometimes tend to rely on the fact that a copy of
a document may be in the information repository, and they resist requests for ways of
making the information more directly accessible to the requesting citizens. In a program
where staff are consistently overworked, it is not unreasonable that they will look for ways
to manage their workload.
5-13
-------
It is clear that there are real limits to what EPA can accomplish at current staffing
levels. Citizens should have reasonable expectations of EPA At the Uniontown site, for
example, citizens have asked for individual copies of EPA's studies for about 15 citizen
/leaders as well as for their technical advisers. It is appropriate for EPA to provide copies
of relevant reports directly to technical advisers, and it is consistent with the purpose and
spirit of this provision of the law. Providing individual copies of lengthy studies directly
to many citizen leaders is much less practical, however.
Both these conflicts, however, ultimately damage EPA's credibility with citizens,
which depends heavily on citizen confidence that they can count on EPA to share all
information with them. One EPA regional staffer observed:
The costs of not giving information to citizens, of being seen as closed and
secretive, far outweigh the costs of giving the information, even of explaining
errors in drafts.
RECOMMENDATIONS:
EPA should be more aggressive about supplying information to citizens and their technical
advisors. Citizens' access to information should be comparable to that of PRPs. Neither
citizens nor PRPs should have to wait until the end of the Remedial Investigation and
Feasibility Study to learn the results of the studies.
EPA should ensure access to information by (1) establishing information repositories that
are convenient to the affected public; (2) completing any necessary review of documents
quickly, so that the documents can be released; (3) placing documents in the
administrative record and the information repositories as soon as possible; and (4)
notifying citizens of the availability of that information through fact sheets and other
mailings.
EPA should require PRPs and its own contractors to write clear, understandable
summaries of complex technical documents. EPA should provide copies of those
summaries directly to citizens.
5-14
-------
FINDINGS: Citizens mistrust EPA's practice of closed-door sessions with PRPs. They feel
excluded from the technical debate about a site. EPA success stories in working with citizens
often include some open forum for technical discussions throughout the Remedial Investigation
and Feasibility Study process. Some PRPs have found a well informed community to be an
asset in facilitating a timefy remedy selection process that does not arouse community
opposition. Some of these PRPs have made technical assistance grants directly to citizens'
groups.
DISCUSSION: Citizens have asked to attend EPA'r meetings with PRPs. EPA is
concerned about allowing citizens access to negotiations, because it is not consistent with
practice in disputes where litigation is a distinct possibility. Citizens ask, however, whether
there are reasons to exclude them from technical meetings. Access to these meetings does
not pose a direct challenge to the legal negotiations, but it does pose some practical
problems of whether citizens have a right to notice, to convenient meeting times and
locations, to ask and have questions answered, to fully participate in technical debates, and
so forth. It is difficult to craft a policy that creates rights without encountering a lot of
problems in implementation. Because of these problems, we stop short of recommending
that citizens have a right of access to all technical meetings.
On the other hand, EPA's success stories in working with citizens have often
included some forum for technical discussions. The enforcement chapter of EPA's
community relations guidance encourages technical workshops, preferably with the
participation of PRPs. At the Toms River, New Jersey, site, citizens and their technical
advisers have met directly with Ciba-Geigy and EPA to discuss remedial alternatives. The
Bowers site in Ohio has an information committee of citizens, state and local officials,
EPA, and PRPs formed in response to citizen comments on a proposed consent agreement
for the PRPs to do the Remedial Investigation and Feasibility Study. For four years, the
Bunker Hill site in Idaho has had a task group that serves as a regular forum for meetings
between representatives of the community, local officials, state officials, and EPA.
RECOMMENDATION:
EPA should encourage the Regions to find ways to bring citizens into technical discussions
early in the Remedial Investigation and Feasibility Study process, especially where there
are active citizen groups, technical advisers to those groups, or interested local officials.
This may mean involvement in technical meetings with PRPs, or it may mean other
mechanisms that have proven successful, such as Technical Review Committees composed
of citizens, local government officials, and PRPs. The Agency should also encourage PRPs
to provide grants to communities to enable them to acqui ^ independent technical
assistance. EPA should provide information and advice to PRFs and citizens regarding
the successful use of such grants at other Superfund sites.
5-15
-------
SIMPLIFYING TECHNICAL ASSISTANCE GRANTS
FINDING: Technical Assistance Grants (TAGs) are an important symbol of EPA's
commitment to public involvement. The TAG program is not working well. Citizens are
deterred from using TAGs by the match requirements, and by the complicated application and
procurement processes. EPA financial managers are wary of potential risks in failing to
exercise strict oversight of the TAG program.
DISCUSSION: Citizens near NPL sites, members of Congress, and national
environmental organizations all view TAGs as an important symbol of EPA's commitment
to public involvement. TAGs are particularly important as a way of addressing the
imbalance between citizens and PRPs, since they are a way for citizen groups near
Superfund NPL sites to acquire independent expertise to interpret technical information
and to participate in the technical debate about site cleanup.
TAGs were authorized by the 1986 Superfund amendments. In March 1988, EPA
issued an interim final rule that allowed the first TAGs to be granted. Nineteen grants
have been awarded to date, and technical advisors have been hired at only a fraction of
these sites.
EPA's implementation of the TAG program has been roundly criticized by both
Houses of Congress, national environmental groups, the Office of Technology Assessment,
citizens, and others. The people we interviewed are upset by the delays in establishing the
TAG program, the low rate of applications, and the restrictions, complexity, costs, and red
tape. They conclude that EPA is trying to frustrate the intent of the statute.
The perception exists, especially among those familiar with the TAG
legislation, that EPA specifically wrote the regulations to discourage groups
from applying [for grants] and to resist Congressional pressure to make
money more available to citizen groups that might challenge EPA decisions.
— EPA survey of citizen groups.
A consistent picture of the problems with TAGs emerges from two recent detailed
surveys of citizen groups near NPL sites. One survey was done for Congress, and one was
done for EPA itself. Both surveys found the following:
* The 35% matching fund requirement is excessive and
discourages a significant number of groups from participating
in the program, particularly when coupled with the 15% cap
on administrative in-kind services.
5-16
-------
* The application process is too complex and burdensome. As
a result, many groups interested in TAGS do not actually apply.
Those who do apply complain about the complexity and length
of the process and the time and effort required.
* Few community groups have experience with grants. Even if
administrative requirements are simplified, most will need
personal assistance from EPA staff, starting early in the
application process.
* The procurement regulations and other administrative
requirements are too complex and should be simplified as much
as prudent financial management will allow.
Our own interviews with citizens and EPA staff confirmed these findings. While EPA may
not have deliberately erected barriers to discourage applicants, the Agency's strict and
cautious application of federal policies and procedures in the regulations, guidance and its
implementation of the TAG program have had that effect.
We believe it is critical for EPA to correct these problems. Citizens deserve an
equal voice in technical debates about Superfund sites, and Technical Assistance Grants
are an important tool to help them. The rest of this section discusses specific problems
with the TAG program and our recommendations for improvements.
Matching Fund Requirements
The TAG regulations require grant recipients to provide matching funds equal to
35% of the total of the federal grant and citizen's matching funds. For example, groups
must contribute $26,923 in cash or in-kind services to match a $50,000 federal grant. A
maximum of 15% of the total grant amount can be used for administrative costs or
services. EPA estimates that a group contributing only in-kind services to meet the 35%
match for a $50,000, three-year grant would have to contribute about 20 hours per week
for those three years.
The matching fund requirements established by the previous Administration go well
beyond the minimum requirements set by Congress. The 35% match is more than the
minimum 20% Congress required, and the 15% limit on administrative costs has no basis
in the statute. These requirements are significant deterrents to applicants because of the
money and time necessary to meet them. Any match may discourage some applicants,
particularly those with limited financial resources or time. Congressional staff report that
these are the very groups the grants were intended to help. A match may also seem an
unfair burden to groups who already perceive themselves as victims of the situation or who
may already have suffered adverse health or economic impacts. For groups who have no
cash or technical expertise and can only contribute administrative services as their match,
5-17
-------
the 15% cap on administrative costs may keep them from qualifying for a grant. EPA
should reduce the match requirement to the statutory 20%, and should eliminate the limit
on administrative costs.
Congress established the requirement that groups contribute at least 20% of the
costs of technical assistance, but provided for waivers of the match requirement "if the
grant recipient demonstrates financial need and such waiver is necessary to facilitate public
participation in the selection of remedial action."
Tie TAG regulations for waivers of the match are more restrictive than the law in
several ways. First, the regulations say waivers should only be granted in "exceptional
circumstances." This language has been interpreted by some Regions and citizens as
establishing a more stringent standard for waivers, although EPA Headquarters staff say
this was not intended. Second, the regulations require EPA to make three findings to
grant a waiver: (1) proof of unusual financial hardship, (2) proof of an effort to raise the
match, and (3) proof that a waiver is necessary to facilitate public participation. The first
finding is more restrictive than the statute; finding #2 seems consistent with Congressional
intent; finding #3 is directly from the law. EPA should delete the reference to "exceptional
circumstances" and should change finding #1 to match the statutory language.
Finally, EPA interpreted the last clause of the waiver portion of Section 117(e) as
a prohibition on waivers after the Record of Decision (ROD) is signed for the last
operable unit at a site. This may preclude waivers and therefore participation at sites
where the ROD must be re-opened, where decisions affecting the remedy are made after
the ROD, where the effectiveness of the selected remedy will be tested during the design
phase (after the ROD), or where the ROD is performance-based. EPA should allow
petitions for waivers in these circumstances.
The Application Process
Hie process is tedious and complex. I have prepared applications for grants worth over
a million dollars that are simpler and easier to deal with [than the TAG program
application].
-- a successful applicant.
EPA has received letters of intent to apply for grants at 93 sites; 36 groups have
followed through with grant applications, and the Agency has awarded 19 grants to date.
Twelve more applications are still being processed or are awaiting revisions by citizen
groups. EPA has rejected five applications, either because of a group's ineligibility or
because a group has failed to make needed revisions to its application.
A majority of citizen groups surveyed reported they were frustrated by or did not
follow through with the application process primarily because they were overwhelmed by
the complexity and bureaucracy of the program and the 35% match. The standard
Federal grant application seems complicated to most applicants, particularly the budget
5-18
-------
portion, which is especially difficult. EPA has added to the burden by requiring applicants
to provide additional information to help the Agency determine eligibility and evaluate
competing applications.
The application forms and process could be simplified without sacrificing quality,
particularly if EPA staff work closely with applicants. EPA should streamline the
application while reserving the right to request additional information if competing
applications are submitted. EPA should allow applicants to defer development and
submission of the detailed budget until after a grant is awarded.
The first impression many interested groups get of the TAG process is the inch-
thick Citizens' Guidance Manual. Most groups surveyed rated the manual "somewhat
difficult" because it was too long, the pages were not adequately indexed, examples were
difficult to follow, and some statements were misleading. Not surprisingly, many conclude
that the application must be extremely difficult to require such a lengthy manual and may
not be worth the bother. EPA should simplify the manual and develop an index to make
it easier to use.
Hands-on EPA assistance to citizen groups is invaluable from the very beginning of
the application process. Most Regions provide such assistance, although this was not
always the case earlier. Delays in the application process are less frequent and are shorter
than when the program first started, but still occur. EPA should continue to emphasize
help to applicants and expeditious processing of their applications.
Procurement
Citizens are also frustrated by the complexity of procurement requirements, which
many see as out of proportion to the size of the grants and the intent of the law.EPA's
survey found that most TAG applicants agree with EPA that some competitive
procurement process should be followed to ensure that groups get qualified advisors that
will provide them the assistance they want. However, EPA has been criticized for
requiring grantees to follow standard federal procurement requirements, rather than
adopting simplified, TAG-specific requirements. EPA has also been criticized because the
citizen's manual suggests that people are required to do more than the minimum required
by law.
A recent Congressional report recommended that EPA simplify the TAG
procurement process by issuing a class deviation to apply small purchase regulations for
the entire grant amount (the current ceiling is $25,000). This recommendation is
controversial within EPA because of the precedent it would set for other small purchases.
EPA should (1) immediately clarify the TAG guidance on procurement to emphasize the
flexibility possible under the current regulation and (2) amend the TAG regulations as
soon as possible to specify procurement procedures similar to small purchase
requirements.
5-19
-------
The Reincorporation Requirement
The reincorporation requirement has kept some groups from applying for or
receiving grants. Virtually all parties agree that groups should be incorporated to ensure
that individuals are protected, but some groups that are already incorporated and show a
history of involvement at a site don't want to reincorporate or are prohibited from doing
so by their own rules. EPA should revise the regulations to allow groups already
incorporated and with a history of involvement to apply without reincorporating.
The $50,000 Limit Per Site
In the regulations, EPA prohibited waivers of the $50,000 limit per site and did not
provide for renewal of grants, even though such waivers and renewals are allowed by the
statute. This was done to allow the Agency to gain some practical experience with the
grants and to reach consensus on what the waiver standards should be. Some groups are
already asking for waivers and renewals. EPA should move quickly to establish criteria
for waivers and should amend the regulations to permit them, consistent with the law.
EPA should also establish guidelines for renewal of grants where necessary to faciltate
public participation in all stages of remedial action.
Restrictions on Eligible Activities and Groups
The primary concern expressed by some citizen groups about restrictions on eligible
activities is the prohibition on collection of new primary data - i.e., sampling. EPA has
reservations about collection of data for several reasons, including the high cost of
sampling and concerns about sampling and analysis quality control. There is also some
debate about whether taking samples is consistent with the intent of the statute, which
provides these grants "to obtain technical assistance in interpreting information...." At the
very least, the Congressional study recommended finding some way for the Agency to
respond to requests for additional sampling. This appears to be a reasonable idea to
respond to concerns about the possible need for more sampling. EPA should develop
some way to accommodate reasonable requests for additional sampling (see related
discussion on page 5-6).
Another problem is a misunderstanding about the proper interpretation of the
language in the regulations that funds "may not be used to challenge final decisions."
Some citizen groups and EPA regional staff have interpreted this language to mean that
the Agency wants to discourage and avert possible challenges to its remedial decision-
making. This seems to critics to be another example of EPA's interpreting the law as
strictly as possible and restricting participation. EPA's intent was only to prohibit grant
funds from being used to finance legal challenges or lobbying, as Congress indicated in the
Conference report. EPA should clarify the meaning of this section in guidance to the
Regions.
5-20
-------
Outreach
EPA Regions have used many tools to make citizens aware of the availability of
TAGs, including mass mailings, workshops, press releases, calls to citizen groups,
newspaper ads, and standard language in fact sheets. However, the low number of
applications for grants has called the Agency's outreach efforts into question. The
Congressional report and EPA's own survey raise questions about the effectiveness of
EPA's outreach. EPA regional staff believe, however, that flaws in the TAG regulations
outlined in this report are the most important reasons for the limited number of
applications received to date.
EPA should first revise the TAG regulations to make the grants easier to obtain.
Then EPA should inform citizens about TAGs once again. We suggest that all Regions
insert a standard explanation about TAGs at the bottom of each fact sheet If a TAG has
been awarded at the site, the insert would tell the citizens how to contact the Technical
Advisor for assistance. If there is not yet a TAG, the insert would explain how to find out
more about the program. Headquarters should develop examples of inserts for Regions
to use. In addition, the Agency should use press releases in communities with sites to
publicize the changes in the program and the purpose and availability of these grants.
EPA Perception: Significant Financial Risk
EPA financial managers are wary of the potential risks in the TAG program. They
are generally being held to a high standard of care and documentation for any Superfund
expenditure, either because of the specialized nature of the trust fund, or because of the
litigation potential for cost recovery. In addition, they are concerned that the lack of
established financial control systems in most citizen groups make TAGs more vulnerable
to financial mismanagement. One EPA manager called TAGs "super audit bait", and
defended extra restrictions and caution in their implementation as absolutely necessary
under the circumstances. Another EPA manager recalled some of the financial problems
encountered by the poverty program's grants to citizen groups some years ago. These
managers are also concerned about the risks to the citizen groups themselves. They do
not want to expose well-intentioned groups to the risk of unfavorable audits and attempts
at cost recovery from those groups, should funds be spent unwisely or illegally.
We believe that these concerns are legitimate. Financial systems are like safety
systems; they seem unnecessary most of the time, except when something goes wrong.
The problem with TAGs, however, is that the very inexperience of the citizen groups that
makes financial managers nervous also makes the burden of EPA's financial procedures
especially heavy for these volunteer organizations. The question that EPA must confront
is whether the financial risks of the TAG program are so high as to warrant the present
degree of financial controls and cautious implementation. We believe that the benefits of
5-21
-------
the TAG program outweigh the financial risks of fewer and less rigid controls. The
Administrator should explicitly encourage EPA managers to run the TAG program with
the minimum red tape necessary to meet legal requirements, and should make it clear
that the Agency is willing to take the financial risks entailed in this program.
State-Lead Sites
Currently, states are not taking a lead role in administering the TAG program. A
survey of nine states found that most of them are not interested in administering the
program because of financial and staffing constraints, as well as perceived problems with
the program. Most were unaware that EPA provides administrative assistance to states
involved in the program. Since states typically handle community relations at state-lead
NPL sites, EPA staff may be unable or unwilling to do outreach and adequately judge
community interest at these sites. So long as states remain unwilling to participate,
implementation of the TAG program at these sites will most likely remain a problem.
However, once EPA amends the TAG rules to remove the barriers identified above, states
may be more willing to assist in implementing the program at state-lead NPL sites.
RECOMMENDATIONS:
The Administrator should strongly support the reform of the Technical Assistance Grants
program to eliminate barriers to their use. Specific recommendations to carry out this
reform are included throughout the discussion above. The most important of those
recommendations are summarized here:
EPA should amend the interim final rule immediately to (1) reduce the match
requirement from 35% to 20%, (2) eliminate the 15% cap on administrative in-kind
services, and (3) modify the reincorporation requirement
EPA should simplify the application process, simplify the procurement requirements, and
establish guidelines for grant renewal in cases where circumstances warrant
EPA should encourage citizen groups to apply, not discourage them with red tape, so long
as they demonstrate a willingness to manage TAG grants responsibly and a reasonable
ability to do so. The Administrator should acknowledge and accept the financial risks of
fewer and less rigid controls, flexibly applied by Regions.
5-22
-------
A FINAL COMMENT ON EXPECTATIONS
One of the most difficult aspects of public involvement is trying to figure out how
much is enough. Some reasonable questions for a reader of this chapter are: how
different are these recommendations from what is now being done; how much demand is
there for intensive public involvement; and what should we expect in the future?
There is very little in these pages that does not reflect the tried-and-true approaches
that have already been found to work by EPA staff at a number of sites. We found that
many EPA staff already are working hard to be good communicators and involve the
public in key decisions, within the limits of their time, resources, and experience. The
consensus we found is that more is needed, but that does not mean we envision the need
for the most elaborate programs at every Superfund site around the country.
A group of regional site managers estimated that about one-quarter to one-third of
Superfund sites were sufficiently controversial to warrant fairly extensive communication
and citizen involvement programs. That estimate is crucial, for the practicality of carrying
out a more extensive public involvement program, which is what we are advocating in this
report, depends very much on the number of sites where the Agency needs to increase its
efforts. Our sense is that EPA should inform citizens early at all sites, and should then
work most intensively at those sites where there appear to be substantial citizen concerns
and incipient controversies. While there may be claims that all citizens at all sites deserve
our complete engagement, we can only say that it seems reasonable to us to focus our
communications and citizen involvement resources on the highest priority sites, just as we
focus our technical resources.
Finally, the strategy articulated for the Superfund program at the beginning of this
report carries important implications for community involvement. Where sites will not be
completely cleaned up for some time, EPA's relationship with the nearby communities is
critical to their acceptance of EPA's strategy. Community acceptance will depend upon
confidence that EPA will finish the job and that EPA and its staff are to be trusted.
Regardless of the wisdom or quality of EPA's overall management strategy for Superfund,
gaining this confidence and trust will require a substantial investment in community
participation at each Superfund site.
5-23
-------
VI. MANAGEMENT AND ADMINISTRATION:
FREEING UP THE SKILLS AND TOOLS TO DO THE JOB
-------
CHAPTER VI
MANAGEMENT AND ADMINISTRATION:
FREEING UP THE SKILLS AND TOOLS TO DO THE JOB
INTRODUCTION: The breadth and complexity of the Superfund program have presented
enormous administrative management challenges to the Agency. Superfund required EPA
to hire a new breed of employee, to create new and responsive administrative systems to
support them, and to design a management structure to effectively direct an extensive
contractor workforce. It shifted EPA's focus from a predominantly regulatory and research
mission to an operational one. From an administrative management perspective, EPA has
not been as successful in developing the support systems Superfund needs as it could have
been; however, it has the talent to face these challenges. This paper outlines some
important aspects of the administrative strategy needed to make mid-course corrections
which will make us more successful in the future.
Effective administrative strategies are basically plans for deploying people and tools
to support getting the job done. Superfund's goal is quick, safe cleanup; tackling the most
dangerous sites first and requiring private parties to conduct or pay for the clean-up
wherever possible. Clearly, the most critical area requiring improvement is the manner in
which EPA goes about hiring and retaining a technically skilled field staff and a capable
cadre of field enforcement attorneys. Turnover among key field staff, as high as 20% in
some areas, leads to slow-downs in site cleanups, a loss of technical expertise, and a
disruption in relations with the communities and States. EPA needs to offer a competitive
compensation and retention package in order to attract and keep staff who are the critical
linchpin in the Superfund program.
Internal reports have shown that salary and benefits are not the only reason people
leave the Superfund program. A major disincentive is the overwhelming amount of
paperwork, lack of secretarial support, inadequate working space, and lack of the tools to
access information systems. All bureaucracies tend to over-regulate themselves. In this
case, the natural tendency to do so is unacceptable if we expect to clean up hazardous
waste sites effectively. Freeing up the field staff from administrative duties so they can
concentrate on technical, community and legal issues is a simple strategy and one that will
yield demonstrable results.
The task group's recommendations will yield more time for field staff to do their
jobs and to do them well. The field staff needs to have the time and the opportunity to
both maintain and expand its technical skills as changes occur in the program and in state-
of-the-art technology. This paper outlines the Agency's commitment to training field staff
at all levels by supporting and strengthening the existing program.
6-1
-------
This paper also presents a strategy to resolve an increasingly visible issue which
undermines the confidence of the public and the Congress in EPA's ability to manage its
contractor workforce. The issue is whether EPA has the in-house capability to make
Superfund policy or whether contractors are increasingly directing the policy development
of the program. EPA fully recognizes that the practice of having contractors develop the
very policies and regulations that they are charged with implementing in the field is totally
unacceptable. We will move aggressively to hire more in-house policy experts, thereby
reducing dependence on contractors. In addition, the Agency will take clear steps to
ensure that no contractor currently working in policy support areas is using that
information to profit or benefit another client in any way.
To be successful, administrative systems must be designed and implemented to
support program needs and adapt quickly when requirements shift. The strategies laid
out in this paper are right for the direction of the Superfund program, and more needs to
be done in the months to come.
ATTRACTING AND RETAINING KEY FIELD STAFF
FINDING: Turnover among key field personnel in the Superfund program is unacceptabty
high. EPA's pay and compensation system is not competitive with private-sector systems.
DISCUSSION: Of paramount importance to Superfund's success are the 484 field project
managers and the 148 enforcement attorneys in the Regions that manage the program in
the field. These field staff, called Remedial Project Managers (RPMs), On Scene
Coordinators (OSCs), and Field Enforcement Attorneys (FEAs) have not received all of
the support they need due to Superfund's explicit policy of giving contractors relative
freedom to execute the remedial program in the field.
These project managers happen to be among the best educated and most dedicated
of all of our employees. Over 96 percent have college degrees, and 35 percent of them
hold Masters or Doctorates. Over half of them hold degrees in engineering. An Agency
job analysis reveals that Superfund site management jobs rank high among EPA's most
difficult and diverse professions, requiring superior technical, administrative, managerial and
communications skills. Most of these people work in excess of 50 hours a week, often in
contentious situations, and they burn out quickly.
6-2
-------
By and by, these people should have been deployed and supervised by the Agency
as if they were an elite force; thus far they have not. Just about 70 percent of all EPA's
field project managers are paid at the GS 11/12 level - only 73 of them have reached GS-
13 and two are at the GS-14 level. In other words, in what is acknowledged to be a
rapidly shrinking labor pool of qualified technical personnel, the Agency pays these people
an average annual salary of about $36,000. In a number of Regions, project managers are
leaving EPA to earn twice that amount in the private sector. Moreover, these project
managers receive lower performance scores than the average employee in the Regions, and
earn less in bonuses and cash awards. Even though these employees manage construction
projects worth millions of dollars, almost 20 percent of them were not even rated by their
supervisors at performance evaluation time last year. If past performance can be regarded
as prologue to the future, one out of every five RPM/OSCs will not be on the job next
year. Clearly, the Agency must do everything it can to attract and retain high quality
people to serve the public as Remedial Project Managers, On Scene Coordinators and
Field Enforcement Attorneys.
RECOMMENDATIONS: The Agency should take immediate steps to offer a competitive
compensation and incentive package to its key Superfund frontline personnel:
* Immediately raise the full performance level of Remedial
Project Managers and On-Scene Coordinators from GS-12 to
GS-13.
* Develop a uniform policy to open up the possibility of
promoting regional Superfund Enforcement Attorneys from
GS-13 to GS-14.
* Pursue initiatives with Congress, the Office of Management
and the Budget and the Office of Personnel Management to
allow the Agency to:
pay salaries competitive with the private sector
in certain high cost geographic areas;
accelerate the promotion process;
design more flexible leave and working hour
policies;
award bonuses to staff who remain with EPA;
6-3
-------
provide high-cost, specialized training outside the
federal family in exchange for additional
government service; and
offer early retirement rights.
TRAINING FOR TECHNICAL COMPETENCE
FINDING: The technical competence of EPA field staff has been questioned from time to
time. EPA acknowledges that it is critical for the public to trust EPA's technical judgments.
DISCUSSION: The General Accounting Office and the EPA Inspector General, along
with a number of other organizations interviewed by the task group, strongly emphasized
the importance of EPA's training programs to develop quality staff for the Superfund
program. The Senate Environment and Public Works Committee has also supported
certain specific initiatives in this area; for example, advancing Institutes that tap academic
expertise to develop specialized training for field staff. Representatives from the Office
of Technology Assessment and the contracting community believe that retention of a
technically qualified Superfund workforce in EPA is perhaps the most critical element to
the eventual success of Superfund.
During the course of its review, the task group learned that the Superfund program
has made considerable progress in strengthening its training component over the past year.
It acknowledges the competence and dedication of its frontline employees, all of whom are
actively seeking opportunities to enhance their technical skills. While training funds are
usually among those typically cut during periods of constraint, EPA's Office of Emergency
and Remedial Response has actually increased resources in this area to address the special
training needs of all Superfund field staff. Towards this end, EPA has recently launched
three new training programs. For new field staff, a six-week session of the new Superfund
Academy offers training in all phases of the program, from contracts management to
technical issues. A second Academy program provides new field staff with a senior field
mentor for on-the-job training for the first six months of the new employee's tour of duty.
For more advanced field staff, EPA has created the Superfund University Training
Institute. This training program takes place on a University campus and provides learning
through case studies of Superfund sites involving groundwater management, controlling
pollution at the source, and responding to emergencies.
6-4
-------
In addition to the structured training programs offered by the Superfund program,
field staff have been enhancing their technical skills by performing in-house remedial
investigation and feasibility studies in some regions. This practice is specifically
encouraged for all regions in an earlier chapter of the report. In our interviews with
RPMs representing the ten regions, the project managers expressed their desire to
continue and expand hands-on training, citing both the successful results of the recent in-
house remedial investigation and feasibility studies, and the opportunity to develop
additional contractor management skills.
RECOMMENDATIONS: EPA recommends improving the technical knowledge, skills,
and abilities of field staff through budgeted support of additional EPA training initiatives:
* Implement a mandatory training requirement for field staff at
all levels: Basic, Intermediate, Advanced, and Master. This
should serve as an incentive leading to certification of EPA
field staff at various levels.
* Implement pilots in all regions encouraging EPA field staff to
perform remedial investigation and feasibility studies in-house.
Reward outstanding achievement in this area. This practice
will improve the ability of front-line staff to better oversee
contractors in the field.
PROVIDING FIELD STAPF WITH
ADEQUATE ADMINISTRATIVE SUPPORT
FINDINGS: Key field staff do not have adequate administrative support and lack important
information management tools. They spend approximately 25% of their time on administrative
tasks that could be delegated to clerical or support staff. They also lack the necessary
equipment to gain access to the information systems established by the program.
DISCUSSION: Inconsistent administrative support to Regional OSCs and RPMs and the
lack of a clear distinction between the roles and relationships of project managers and
support staff are major sources of frustration that lowers morale and raises turnover rates
among key Superfund personnel.
6-5
-------
In 1985, an EPA task group addressed the administrative support issue and
concluded that the amount of administrative burden in the program negatively affected
the field staffs ability to focus on contractor oversight, community relations, and
enforcement work. That situation still exists today, in the opinion of the Task Group.
Although the Regions have made progress in this area over the last 18 months,
much remains to be done. One recommendation the task group is not making is a
mandatory reorganization using some predetermined configuration. Field project managers
can be supported successfully through a decentralized system-which may work better in
smaller regions--or through a centralized model, which is probably more appropriate for
EPA's larger regions. RPM's and OSC's interviewed by the Task Group favored the
designation of specialized administrative support staff to handle each site's administrative
work. These personnel would become an integral part of the site team, developing strong
allegiance and a commitment to completing the site cleanup project. These people would
be familiar with all aspects of administrative management, but would not be expected to
be expert in every area. They could draw on other administrative experts in the region
and know where to get what the site manager needs, thereby freeing up the RPM or OSC
to concentrate on supervising contractors and working with communities. In the larger
Regions, teams made up of people with varied skills and specialties could be organized
into support groups for specially designated sites or groups of sites. Team members could
come from both the Waste Management Division and the Management Division.
The most important prerequisite for success appears to lie in the working
relationship in the Regions between the Assistant Regional Administrator, who heads the
delivery of support services, and the Director of the Waste Management Division or
Environmental Services Division, who supervises field project management staff. If this
relationship is built upon cooperation and a clear definition of roles and responsibilities,
then support systems will work and the site will be cleaned up successfully. For this
relationship to succeed, however, staff in both divisions must work together as full
partners. Hence, the task group favors action that will create strong working relationships
between Superfund staff and Management Division personnel. The approach would be
carried out best under the provisions of a Memorandum of Understanding between the
leadership of the two programs in the Regions, set around a defined list of administrative
tasks.
In the information management area, EPA has made important strides in the past
two years. Problems in this area no longer arise from a lack of systems, but rather from
a lack of proper equipment and'access in many regions. The systems developed include
the OSWER Bulletin Board which provides a way for Headquarters to communicate with
the field, and more importantly, for OSCs and RPMs to communicate with one another.
The Record of Decision (ROD) data base went live in 1989, providing data on remedy
selection at sites nationwide. The OSWER Directives System provides access to
Superfund program guidance, special directives, and policy decisions in an electronic
6-6
-------
format, although the system might be more effective if placed on a local area network.
WasteLan, a management information and tracking system, is on-line in three Regions and
is expected to be up nationwide by September 1989.
All these systems are important to effectively managing information for Superfund.
However, the task group found that virtually no personal computers are at the field
project managers' direct disposal, and E-mail communications software and modems are
sadly deficient. Making personal computers, portable "laptop" computers, communications
hook-ups, hardware, software, printers, and other equipment available to OSC/RPMs
would improve the flow of operations and strengthen the remedy selection process
considerably.
At present, RPMs are largely unaware of the skills and techniques needed to access
the on-line systems that have been put in place to assist them. All the systems described
above are fairly simple to use. The extent to which OSCs and RPMs make use of them
depends not only on the availability of equipment, and the quality of instruction and
support they receive, but also on how effectively their supervisors and managers use them
in the field.
RECOMMENDATIONS
The Assistant Administrator for Solid Waste and Emergency Response and the Assistant
Administrator for Administration and Resources Management should:
* Work out a format for assigning certain administrative tasks
to the appropriate Management and Waste Management
Divisions in the Regions. These two Assistant Administrators
should then solicit the agreement of the Regional
Administrators on the assignment of these administrative
tasks in a regional Memorandum of Understanding. Should
this approach prove successful, it should be extended to include
key activities of Environmental Services Divisions and lawyers
in the Office of Regional Counsel. Ultimately, Regional
Administrators have the principal responsibility for assuring
successful cooperation among the various offices responsible
for implementing Superfund in the Regions.
* Ensure that all key field staff have immediate access to
personal computers, portable computers for the field, related
hardware and software and E-Mail capabilities to access the
OSWER information systems.
6-7
-------
DELEGATION AND EXERCISE OF ADMINISTRATIVE AUTHORITIES
FINDING: Certain administrative delays can be eliminated through delegating administrative
authorities to people more accessible to RPM/OSCs, or to the RPMIOSCs themselves.
DISCUSSION: Field staff interviewed cited paperwork, excessive layers of review and
concurrences to be a barrier to efficient program performance. The task group identified
a number of areas which the Assistant Regional Administrators and the Waste
Management Director should reevaluate to determine whether the authority to complete
a task has been assigned to the level most closely responsible for it. For example, RPMs
and OSCs recommended eliminating excessive sign-offs and time delays through delegating
the authority to authorize travel to managers one level above them. The use of blanket
or monthly travel authorizations/vouchers or paperless travel authorizations, coupled with
quicker travel advances could go a long way towards reducing delays and frustration for
field staff.
Other areas to be considered include making automobiles available for RPMs and
OSCs or providing an easy way for them to rent them. The purchase of equipment and
other property for necessary site work should be streamlined through the extension of the
Bankcard program to the Regional Waste Management Divisions, and delegating
OSC/RPMs or persons in the administrative support units the authority to sign for
purchases up to $1,000. This would obviate the need for contractors to purchase
property and equipment at greater cost to the government. The last area to be examined
is simplifying the processes for approving overtime, compensatory time, hazardous duty
pay, and stand-by pay.
RECOMMENDATION: The Assistant Regional Administrators and Waste Management
Division Directors should examine administrative authorities such as approval of travel
authorizations and vouchers, acquisition or the lease of motor vehicles for site-specific
work, purchase of necessary site equipment and property, approval of overtime,
compensatory time, hazardous and stand-by duty pay and delegate them to the most
appropriate and efficient level.
6-8
-------
REDUCING AGENCY DEPENDENCE ON CONTRACTORS
AND AVOIDING CONFLICT OF INTEREST
FINDING: The Superfund Program's dependence on contractors for certain categories of
policy and regulation development has been the object of considerable criticism in Congress
and from the public at large. While the practice of using contractors as an "extra pair of
hands" in regulatory and policy work may have been viewed as a necessity in the past, it is
clear that continuing along these lines in the future threatens the integrity of the program.
DISCUSSION: Public interest groups and Members of Congress are increasingly
concerned about the possibility that Agency contractors exercise undue influence on
Superfund implementation. At the outset, the Superfund program was legislatively
designed to utilize a large contractor workforce, thus minimizing the growth of a large
EPA bureaucracy. This approach is sound only if the lines between what work is done by
EPA employees and what support is appropriately provided by contractors are clearly
drawn.
In a program as broadly complex as Superfund, even well-intended contractors can
find themselves in awkward positions. Conflict of interest situations arise when a set of
conditions impairs the objectivity of the contractor working for EPA. This has been most
problematic in the Superfund Program when a firm is awarded a contract for a clean-up
program that they also helped to design. A real potential for conflict arises if the firm
recommends using cleanup technologies or methods offered by its subsidiaries or is
charged with implementing in the field the very policies or regulations it developed for
EPA in Washington.
The task group agrees that EPA contracts managers need to collect information on
where contractors are working and where they have worked in the past. EPA must
develop procedures to apply its own independent judgment to potential conflict-of-interest
situations, and not rely solely on self-certification by contractors. Contractors too need to
know where they can get fast answers to their questions about potential conflict situations.
Many of EPA's policy support contracts are large, open-ended "mission contracts"
that provide considerable flexibility to EPA and contractors in making and receiving work
assignments. The key activities that are written into the scope of work for these contracts
are the following:
6-9
-------
* Analysis of program, regulatory and legislative issues;
* Drafting of alternative policy approaches and policy guidance;
* Analysis of comments on Federal Register notices;
* Development of technical policies, strategies and plans for
Superfund response activities;
* Design and development of new ways of addressing issues
related to Superfund regulations, policies and response
activities, and;
* Analysis of response policy issues such as remedial/removal
cost effectiveness determinations, innovative and alternative
technologies, response claims and enforcement policy issues
as they affect remedial and removal programs.
The first step is to clearly define the roles, responsibilities and relationships between
EPA and its support contractors and communicate them to Congress and the public.
RECOMMENDATIONS: To protect the integrity of the program and to preserve the
reputations of participating contractors who are so important to Superfund's success, EPA
should begin immediately to develop guidance proceedings and award criteria to preclude
firms from holding both policy and regulatory support contracts as well as response
action contracts under the Superfund program. Contractors currently involved in such
arrangements should be asked to make voluntary disclosures of potential conflict
situations and to refrain from executing policy and regulatory analysis or guidance
preparation on work they are also charged with carrying out in the field. Superfund
program staff should also exercise appropriate care in issuing work assignments.
EPA should immediately develop additional procedures for detecting and avoiding conflict.
This should include issuing clear guidance to contractors on what constitutes a conflict-
of-interest, and requiring a corporate executive to certify that no conflict-of-interest exists.
EPA should also send procurement review teams to examine Superfund contractors'
conflict-of-interest prevention systems.
To fully mitigate the serious perception problem that exists with regard to contractors
assisting the program with policy and regulatory development, EPA should begin
increasing in-house staff to reduce dependence on contractors. EPA staff should analyze
which portions of the current contractor workload should be performed in-house and
establish a timetable for phasing manageable portions of this work from contractors to
EPA staff.
6-10
-------
VII. ACCOUNTING FOR ACHIEVEMENT:
COMMUNICATING PROGRESS TO THE PUBLIC
-------
Chapter VII
ACCOUNTING FOR ACHIEVEMENT:
COMMUNICATING PROGRESS TO THE PUBLIC
One of the mos* significant challenges for the Superfund program is effective
communication. It is very difficult to convince people that a site is being "cleaned up"
when they cannot actually "see" any measurable activity. Superfund's communication
challenges are heightened because the program has always been extremely complex, highly
publicized, and often very controversial.
To meet the challenge of telling a story that makes sense to the public, we need
to commit to communication goals and efforts that build a basis for public understanding,
trust, and confidence. From our task group's investigations, we found that these goals
and efforts fall into the five major topics: (1) informing the nation about Superfund; (2)
expanding participation in national program development and oversight; (3) making
communication part of everyone's responsibility; (4) measuring Superfund progress; and
(5) achieving incentives for efficiency and results.
INFORMING THE NATION ABOUT SUPERFUND
FINDINGS: EPA has concentrated Us communication efforts in an active community
relations program designed to meet the needs of citizens affected by Superfund sites. But
there are very different communication needs for community, Regional, and national interests.
Inadequate attention has been paid to developing and communicating an accurate, timely,
and meaningful national picture of the program. Moreover, the language used to describe
the starts and completions of steps in the Superfund process does not convey progress in a
way the public can understand. Hence, EPA and its constituencies often interpret and define
components of the program differently. This can result in apparent inconsistencies and
confuse the audience with differing definitions of success.
DISCUSSION:
Commitment to Communicate
A commitment to communicate must become an integral part of every aspect of
the Superfund program. Many people interviewed mentioned that the perceived lack of
commitment and willingness to talk with the public about the program severely hampers
7-1
-------
our efforts to establish and maintain meaningful two-way communication.
Communicating effectively with the public not only enhances the credibility of the
program, but can deter potential impediments to program progress. We found that EPA
staff and management do not follow a common philosophy of communication.
PRINCIPLES OF COMMUNICATION
In EPA's work on Risk Communication, we have identified seven basic principles of
communication. Although the principles may seem simplistic, they are all too often
violated in practice. People who are involved at all levels of Superfund implementation
need to accept the.following principles as a real working philosophy of communication
and apply them in the context of their individual roles in the program.
* Accept and involve the public as a legitimate partner: The Superfund
program is mandated, paid for, and accountable to the public. Members
of the public have a right to expect more opportunities for meaningful
involvement in decision making.
* Plan carefully: Communication concerns need to be factored into all
aspects of Superfund program planning. Everyone who works in the
program must be viewed (and trained) as a communicator.
* Listen to the public's specific concerns: Frequently members of the public
are concerned about issues different from those the "experts" expect them
to be concerned about. Exhibiting a willingness to learn from citizen's
experience will increase public trust in the program. If we don't listen
to the public, we shouldn't expect them to listen to us.
* Be honest and open: To gain credibility, the Superfund program must
make a concerted effort to "tell it like it is." People are more willing to
accept what we have to say when they feel they are part of an open
process. EPA must be more realistic about the progress we are making
and what we can and can't do; otherwise the public will always be
expecting us to accomplish impossible goals.
* Coordinate and collaborate with other credible sources: The Superfund
program has often benefitted by collaborating with other authoritative and
trustworthy sources (e.g., Centers for Disease Control, the Agency for
Toxic Substances and Disease Registry, and locally respected medical
authorities) and needs to continue doing so.
* Meet the needs of the media: The media are a prime transmitter of
information about the Superfund program. We need to redouble our
efforts to understand and meet their needs.
7-2
-------
Speak clearly and with compassion: The Superfund program routinely
asks people to understand and believe things they can't see in
circumstances that are generally upsetting. Thus, the program needs to
focus on both the words and the tone that it uses to communicate.
Presenting EPA as a group of people working to make communities safer,
rather than as a bureaucratic organization, will increase confidence in our
ability to protect the public's health and the environment. The good news
is that when properly presented, the key messages of the Superfund
program can be understood and even accepted by most people, if not by
everyone.
Need for a National Communications Plan
The interviews revealed that there are very different needs for site-specific,
Regional, and national interests. Many people believe we are effectively communicating
with communities at the more active Superfund sites. At these sites, our community
relations program has maintained a visible role and we have implemented a well-planned
program through trained staff and useful support materials. However, the same effort has
not been put into developing an accurate, meaningful, and credible national picture of
the Superfund program.
Members of Congress, local government officials, prominent community members,
the media, and public interest groups can have a significant influence on community
relations and on the local and national perceptions of the program. From our discussions
with Regional staff, it is apparent that we need a comprehensive national communications
plan that ensures systematic and continuous distribution of information about Superfund
to people who inform and represent the public. As we identify different needs for
different groups, we can develop appropriate communication materials to meet those
needs. For such a plan to be effective, however, our information must be delivered early,
before a problem occurs.
Numerous communication mechanisms currently in place within the Agency can
be directed toward getting Superfund information to the general public. These range
from the very informal (ad hoc), to the formal (planned); from printed and professionally
produced documents, to personal contacts and media presentations; and from
communication oriented to a specific local issue, to messages of nationwide importance.
Examples of mechanisms we currently use include such publications as general program
and site-specific fact sheets, the Superfund advisory quarterly program update, brochures
like "The New Superfund: What It Is, and How It Works," and Regional newsletters.
7-3
-------
We have also been successful in using visual mechanisms such as videotapes. For
example, in Region V the community relations and program staff have effectively used
a videotape on cleanup activities at one of their prominent sites to inform the public
about the program.
It is apparent from our interviews that our use of these mechanisms could be
more effective and broader. There must be an asserted, proactive outreach to the people
we have identified as needing to be well informed about the program. To ensure early
and effective outreach, the following examples were suggested for expanding or refining
what we have in place: public service announcements, distribution of regularly updated
site summaries, promotion of available information depositories, informal community and
national meetings (brown bag lunches with management), and increased use of
videotapes. In addition, professional communicators from the private companies and
other government Agencies could teach EPA about innovative communication techniques
that have been successful in other sectors.
The Words Get In Our Way
The language used to describe steps in the Superfund process does not convey
progress in a way the public can understand. EPA and its constituencies often interpret
and define components of the program differently. This can result in apparent
inconsistencies and can confuse and frustrate the audience.
As indicated by our interviews and the various Superfund reports, such terms as
"remedial," "removal," "operable units," and "national priorities list" may be meaningful to
those involved with the program, but are often confusing to the public and may, in fact,
raise their expectations unrealistically high. Such bureaucratic terms as "fund versus
enforcement" or "Headquarters versus Regional" are often viewed by the public as
irrelevant. Our findings showed that the public sometimes views these bureaucratic terms
as smoke screens meant to dodge accountability because we have not met their
expectations or sufficiently explained our actions.
In task group meetings, Regional and Headquarters personnel noted that the
media has perhaps the greatest impact on how the Agency and the Superfund program
are viewed by the public. Because the media can reach so many, so quickly, it is
imperative that reporters, editors and news directors understand what we mean when we
describe the program's process and progress.
RECOMMENDATIONS: Develop and implement a national plan to inform the public
at large about the Superfund program and its achievements. Seek help from the
program's many constituencies in developing this plan and in carrying it out.
7-4
-------
Specific actions include:
* Reaffirm a commitment to communication that includes:
- involving the public as a legitimate partner;
- listening to the public's specific concerns;
- being honest and open; and
- meeting the needs of the media.
* Identify those who influence public opinion nationally and
locally, including the media, elected officials, and public
interest groups, and provide them with timely, accurate
information.
* Evaluate the efficacy of existing communications techniques
and public information materials to intended audiences and
identify new methods for public education, including the
increased use of stand-alone approaches, such as videotapes,
to describe general or actual Superfund site experiences.
* Work with reporters to develop a "Journalists' Guide to
Superfund" which would provide a national context for the
program, describe steps in the process, identify points where
public interest is high, and describe remedial technologies.
* Address language and definition problems in Superfund by
eliminating jargon from our Superfund lexicon. This may be
difficult, but the Agency needs to make the effort
EXPANDING PUBLIC PARTICIPATION
IN NATIONAL PROGRAM OVERSIGHT
FINDINGS: Citizens, industry, Congress, public interest groups and government officials
want earfy and continuous involvement in Superfund oversight. The Superfund program can
benefit by involving these constituencies as legitimate partners at the national level EPA
needs to invite the public in to participate in oversight of the Superfund program.
7-5
-------
DISCUSSION: Public participation in the decision-making process results in the
development of better public policy. This is especially true for programs like Superfund
that were created in response to public concern. Most of the people we interviewed
indicated that effective public participation must be early, frequent, and consistent.
Stakeholders like states, local officials, responsible parties, industry associations,
and environmental/public interest organizations have varying expectations of the Agency's
implementation of Superfund. In their reports and during our interviews, these groups
expressed concern about not being involved in Superfund oversight, decision making, and
implementation early in the process. They want to be involved during policy
development, national decision making, and discussions about different program issues
as they evolve. EPA needs to better understand the specific needs of each interest group
with an eye toward more effective involvement. Information gathered through surveys
and at focus group meetings could be used in a participatory process that incorporates
and assesses stakeholders' viewpoints.
Congressional staff expressed an interest in increasing our dialogue with them.
Before we finalize a policy or rule, they would like more involvement in regulatory
development through more frequent discussions on such issues as congressional intent.
They also believe information briefings and site visits could be productive.
RECOMMENDATIONS: Identify more effective ways to include interested parties in the
policy debate at a national level.
Several specific actions should be taken:
* At the national and/or Regional level, immediately convene
a forum(s) representing varying perspectives on the program.
The initial forum(s) should be designed to begin an ongoing
dialogue with follow up sessions to address specific policy
and/or implementation issues. The preparation of
authoritative reports is not an explicit goal of this exercise.
Dialogue and discussion among Superfund's diverse
constituencies is the principal objective.
* Use communication tools, such as focus groups or surveys,
to assess our constituency groups' opinions of Superfund and
use this information to more effectively involve these groups
in Superfund oversight and decision making.
7-6
-------
COMMUNICATING IS PART OF EVERYONE'S RESPONSIBILITY
FINDINGS: Too often, Superfund staff and managers do not view themselves as
"communicators" even though the nature of their responsibilities projects them into roles as
frontline Agency spokespeople. Presently, we tend to see public communication as the job of
a few specialists in Headquarters and the Regions. With the exception of the community
relations program, outreach does not appear to be consistently viewed as an integral part of
carrying out the program.
DISCUSSION: Those interviewed made it clear that we must alter our attitude and begin
to realize that "communicating" is simply talking with others who are interested in what we
are trying to do. Thus, EPA Superfund staff must be well informed about their jobs and
comfortable with talking about the program. This factor is essential to presenting an
accurate representation of Superfund's process and progress.
We learned that technical staff and managers are often called upon to respond to
questions and concerns from the press, local officials, or residents who drop by the site.
While site managers consider the technical needs of the site to be their primary
responsibility, other demands to represent EPA and clearly communicate the progress at the
site are placed on these individuals by public concern. If communications break down, we
are perceived to be insensitive to the affected community. This opens the door to criticisms
like: "you don't live here, so you don't care."
Relying solely on trained "communicators" has often tended to isolate the
program's technical staff and managers who may be more frequently called on to deal with
concerned citizens.
RECOMMENDATIONS: Make public education a Superfund priority for all front-line
managers and staff.
Specific actions include:
* provide appropriate communications assistance to
Superfund staff and managers to make communications
and outreach successful.
* provide communications skills training to all staff and
managers.
* reward communication successes in ways that serve as
positive examples for all employees.
7-7
-------
MEASURING SUPERFUND PROGRESS
To communicate the successes of the Superfund program, data describing program
accomplishments must be collected from the sites and delivered to the public. The data
must reflect activities at all stages of the cleanup process-not just final actions. The data
must demonstrate that the program is meeting the expectations of the range of audiences
interested in the program.
Program progress can be shown through the accountability measures EPA
routinely collects for internal management and through other informational measures which
are chosen to report on specific expectations held by the public. Ultimately, a balance must
be struck between having a large enough set of measures to manage the Agency and
keeping the number and complexity down so that the measures we track send an
unambiguous message to the public of desired program results.
This section provides our findings with regard to (1) the measures needed to
communicate progress in line with public expectations and (2) changes that could be made
to improve our data collection to support public information needs and to ensure that the
measures selected for management provide the correct incentives for accomplishing the
major goals of the program. We looked at many efforts already under way to bring the
data collection in line with expectations for results and suggest possible additional measures
that would increase our ability to report progress for all the stages of the program.
FINDINGS: EPA has not reported Superfund progress in ways that meet the public's
expectations for timefy completion of sites, vigorous enforcement against potentially responsible
parties (PRPs), and - most importantly - protection of human health and the environment.
Effective national oversight requires information on Superfund's environmental results. Future
reporting of progress in this area will help to regain public confidence in the program. For this
reason, the Superfund program has begun to develop additional measures to address
environmental as well as enforcement results. Even though none of these measures is perfect,
we are committed to start collecting the data on them in October 1989, with the expectation that
they will be improved over time as we start to report progress on achieving public health,
environmental and enforcement goals early in 1990.
7-8
-------
DISCUSSION: EPA has primarily collected progress data for use in program management
and accountability. Although certain accountability measures are necessary for management
and budget purposes, such as remedial action starts and fund dollars obligated, reporting
these administrative actions outside the Agency has not been an effective way of
communicating the accomplishments of the program. They have been perceived as primarily
reflecting "inputs" (beginnings of activity), rather than "outputs" (results of actions) and
generally don't describe what is actually occurring in the cleanup process in terms that are
consistent with the public's expectations for Superfund.
In particular, the current set of measures doesn't address the public health and
environmental results of the program. For example, removal of leaking containers and
contaminated materials serves to control or even eliminate the imminent danger to human
health and the environment. Similarly, during remedial actions to clean up sites, continual
progress is made in reducing the hazards the sites pose. However, the measures EPA
currently tracks and reports for management purposes, such as "removal completion" and
"RD/RA completion" don't convey the public health or environmental benefits of those
activities.
The current set of measures also doesn't do a very good job communicating the
range of results from intermediate actions taken at sites. For example, "deletion" of a site
from the National Priorities List, widely accepted as the only measure of progress in the
Superfund program, is an accountability system measure. But, the relatively small number
of sites in this category doesn't reflect the real reduction in risk to human health and the
environment or the extensive long-term work conducted at the site before the deletion stage.
In the action stages of the program, there are many sites where extensive work to reduce
risks has been done, even though long-term treatment and/or pumping remedies might be
needed before the site is finally "delisted." This "delisting" process can take several years.
We found that the following additional measures are needed to communicate
program progress:
* Environmental Results. The principal expectation of the
public is that EPA and PRPs will take the necessary steps
to control the risks to human health and the environment
from abandoned waste sites. The public wants to see
action to remove, treat, or contain hazardous substances,
and progress toward achieving the human health and
ecological goals on and near the sites.
* Timeliness. Recent critiques of the Superfund program
note that it is difficult for those outside the Agency to
follow a site or set of sites though the cleanup process and
to determine whether cleanup activities are being
7-9
-------
conducted in a timely manner. At the same time, there are
many constraints on timeliness that may make it difficult
to develop a good measure of timeliness. Nonetheless, it
has been suggested that some measure of timeliness based
on expected time frames for average sites is needed to help
communicate progress in cleanup activities.
Community Involvement. Recent studies suggest that some
measure is needed to reflect the degree or quality of
community involvement in site decisions nationwide and
that we need to use measures that provide an incentive for
early, frequent, and consistent communication with
communities near sites. Some have also suggested that
measures of Agency-wide community relations activities are
needed.
Innovative Technologies. Currently, there is no measure
to reflect the kinds of remedies being selected at sites,
particularly the use of innovative technologies and the
extent of preference for treatment. Some people have
suggested that measures are needed to communicate
whether the appropriate remedies are being used and how
extensively and quickly new technologies are being used.
The Agency has already conducted a study of remedy
selection in site decisions (1988 ROD Survey) that can be
used to communicate this information to the public.
Enforcement. Use of existing accountability measures to
communicate enforcement accomplishments has been
criticized for two primary reasons. First, measures assigned
to the enforcement program don't measure the degree or
quality of participation or co-operation from PRPs and
what this means in terms of Fund money saved. Second,
measures assigned to the remedial program are not linked
to successful enforcement actions. New measures should
focus on those activities that result in early and substantive
involvement by PRPs and on activities most likely to result
in actions closely linked to actual site cleanup.
7-10
-------
Several major initiatives are already under way that will provide new measures for
communication of program progress. EPA plans to begin tracking a limited set of
environmental measures or "indicators" in 1990 to better reflect Superfund's progress in
protecting human health and the environment. In addition, changes to the accountability
measures will make them more useful for informational purposes. For example, existing
measures of "first Record of Decision" and "final Record of Decision" will be combined into
one measure reflecting remedy selection at sites on the National Priorities List (NPL).
Similarly, a new measure has been developed to describe the percent of all proposed or
final NPL sites that have been addressed.
RECOMMENDATIONS: Accelerate the improvements to the existing management
measures to support the national program managers' communication of Superfund
progress. Wherever possible, report the information in 1990.
Specific actions should include:
* by October 1, 1989 begin collection of data to report
environmental results indicators for:
the number of sites where exposures from
air, surface water and/or ground water
releases of hazardous substances have been
controlled.
progress towards meeting the human health
and/or ecological goals at sites.
the amount of hazardous material treated or
removed and area of material contained.
* also by October 1, 1989, begin collecting data to report:
the timeliness of moving a site through the
various stages of site remediation, measured
against preestablished criteria.
the extent of PRPs' participation in the
program.
* accelerate the development of additional measures for
reporting:
the types of technologies used to control and
cleanup sites, including alternative and
innovative technologies.
7-11
-------
additional environmental indicators for 1) the
number of people protected from exposures
to hazardous substances, and 2) changes *n
concentrations of contaminants at sites.
ACHIEVING INCENTIVES FOR EFFICIENCY AND RESULTS
FINDINGS: The large number of management measures, linked to specific action and sites,
limits the Regions' flexibility to creatively apply the variety of tools in Superfund to achieve
maximum results. Ultimately, with a large number of measures, everything is an equal priority.
This reduces the ability of the Regions to concentrate on a limited set of strategic priorities such
as greater PRP participation and faster cleanup actions at sites. Recognizing that the existing
set of measures is the basis for much of the planning and Regional resource distributions, and
that major reductions in the number or diversity of measures could have serious consequences
for our budget and management systems, nonetheless it is time to look at other approaches that
could provide a greater incentive for efficiency and action.
DISCUSSION:
Adding More Meaningful Measures?
A cursory review of the accountability measures only begins to suggest the
magnitude and complexity of the Superfund program. These measures have been
developed and refined over time to reflect the statutory goals, the institutional organization,
public expectations, and incentives and disincentives for implementing the program.
Furthermore, the measures are tied not only to performance but form the basis of our
budgeting system. Staff resources and contract dollars are carefully apportioned according
to the workload models, which find their basis in the accountability systems.
In our conversations with the Regions and the program office, we found a delicate
truce between EPA Headquarters' need for measures of accountability and the Regions'
desire for flexibility. While there was limited agreement as to how many measures are
enough, the bottom line is resources, and both sides agree that the current system, while
flawed, works well enough to allocate budgets and track activities.
Headquarters managers want a comprehensive set of measures because it provides
more detail for oversight of different aspects of the program. Multiple measures help to
ensure that numerous policy directives under this complex program are carried out
consistently in all Regions, and the current set reflects those national policies.
7-12
-------
The Regions feel the pinch of the oversight and the heavy reporting burden.
Each Region already has to dedicate a significant amount of resources to reporting, which
they accept (for the most part) as part of doing business. They don't want to increase that
burden and further believe that reducing the emphasis on "beans" could result in greater
return in increased participation in the program by PRPs.
Using Measures as Incentive for Performance
The data collection issue becomes more difficult when we look at the role of
measures as incentives for achieving progress. The large number and broad focus of these
measures serves to split the program into many different small areas. Hence, there is little
sense of priority; all activities are important. While this has been accepted as a necessary
step to start up a complex program, we should reexamine the ramifications of such a mixed
message for accomplishing the goals of the program now that it is reaching greater
maturity.
EPA Should Pilot Test Alternative Approaches to Regional Management
While no consensus emerged during our interviews, three different approaches
were suggested to change the way the Regions are managed and improve performance.
Since the ramifications of these alternatives are significant, EPA should pilot test them in
a few Regions. These alternatives are:
Allowing Greater Flexibility to Leverage the Fund. Some Regions have suggested that the
existing set of accountability measures restricts their flexibility to effectively use the mix of
fund and enforcement tools to improve the efficiency of the program. They argue that this
flexibility is necessary to overcome the overwhelming shortfalls inherent in the Fund and the
significant resources needed to clean the sites. In particular, the Regions would like
greater flexibility to use the fund as a highly visible lever to apply at sites where the PRPs
are recalcitrant or unnecessarily delaying negotiations. Because the current system sets so
many specific targets for numbers of individual actions, the Regions feel that frequently
their hands are tied to shift strategies and types of actions as a site develops. Reducing the
number of measures would mean eliminating many measures and targets with more of a
focus on improved performance in a limited number of areas. These should be closely
linked with the overall goals of the program, such as increased responsible party
participation and faster site cleanups.
While attractive, this proposal does presents some difficulties. First, developing
workload models without the wide range of measures may be difficult. Also, EPA would
have less of the national data base of actions that Congress and specific interest groups
often ask it to produce. While these problems are significant, they are not insurmountable.
7-13
-------
Using National Audit Teams. A second supplemental approach would pilot test the use of
national audit teams to visit the Regions to assess performance. The idea would be to have
these audit teams substitute for some components of the existing quarterly reporting now
done by the Regions. The audit teams would be expected to collect the necessary progress
and accounting information to report on the Region's progress. An added benefit of this
approach is that the audit teams could function as effective vehicles for transferring
innovative program approaches from Region to Region.
To be effective, these teams would have to work closely with the Regional
Coordinators and be staffed with senior, experienced personnel who understand the
program. They would have to view the audits as part of a productive partnership with the
Regions and not as a opportunity for fault finding.
Targeting Awards to Results. Another supplemental suggestion is to improve the Superfund
personnel award system. Superfund staff are under great public and management pressure
and scrutiny. A greater emphasis on "celebrating successes" would convey a message to
staff and the public regarding our emphasis on action and results. Highly selective (and
lucrative) awards for innovative approaches that produce significant accomplishments in
environmental results, timeliness, community involvement, and enforcement could be
presented as examples of desired performance. While this step would not directly change
the number of measures, an enhanced and highly visible awards system would serve to
emphasize key areas of performance expectations.
RECOMMENDATIONS: Begin a process to review Superfund's internal management
measures with an eye toward eliminating unnecessary or redundant reporting and focusing
more directly on improving performance. Pilot test alternative approaches to increase
Superfund performance and achieve environmental results. Possible pilots include:
* Reducing the number of measures tracked in the Regions
and providing greater flexibility to the Regions to leverage
Fund monies to increase PRPs' participation in settlements
and to accelerate cleanups.
* Supplementing the complex system of accountability
measures with program audit and oversight teams charged
with the mission of improving performance at
Headquarters and in the Regions. These should be
regarded as productive partnerships for improving total
quality in the program.
* Celebrating success by expanding the use of awards as
incentives.
7-14
-------
NEXT STEPS
-------
NEXT STEPS
President Bush promised the American people that he was firmly committed to
cleaning up toxic waste sites: "I'm for an aggressive, no nonsense approach to cleaning up
toxic waste dumps, I'm for strengthening enforcement against dumpers, quickening the
pace of our cleanups, and streamlining the bureaucracy that sometimes slows them down."
This report constitutes the first installment toward fulfilling the President's promise.
According to recent Roper and Associated Press surveys, toxic waste cleanup is
perceived by the public to be the nations's most pressing environmental problem. The
recommendations in this report are the first steps in what must be an ongoing and
developing effort to make the Superfund program work more effectively. However, for
there to be a meaningful change in the public perception of Superfund there must be
strong and determined leadership on the part of those charged with the tasks of managing
the environmental agencies of the federal and state governments. Leadership emanates
from those elected by the citizenry and from public officials entrusted with the stewardship
of government programs.
This leadership begins with EPA's Administrator, William K. Reilly, and with the
other officials appointed by the President. The day-to-day managers of Superfund in
Washington, in the ten Regional offices, and at the various Superfund sites across the
nation must have the full support of their appointed leaders. These managers at
Headquarters and in the Regions should reflect the leadership and commitment necessary
to make this program work.
Several of the recommendations in this report address the necessity of a more
productive partnership between EPA Headquarters and the Regional offices. The
Regional offices are the focal point from which the real job of cleaning up sites gets done.
The Regional offices will be given the cooperation and continue to have the flexibility to
be innovative in their approach to especially difficult or unusual tasks. There will be,
however, more of an emphasis on consistency of result: abatement of toxic substances
at the greatest possible number of sites on the National Priorities List so that risks to the
health and safety of people in surrounding communities is minimized in the shortest
possible time.
Action is now the key requirement for success. While EPA will continue to engage
in the productive dialogue with Congress and with Superfund's many other constituencies
that has characterized the investigations leading to this report, we now have to get serious
8-1
-------
about making sure we have the resources to get the job done. Accordingly, the Agency
should request the reprogramming of certain funds already in the Superfund budget in
order to put more employees into Superfund enforcement, policy and regulatory analysis,
community relations work and site management.
EPA must also now begin the process of developing a results oriented plan and
schedule for implementing the major recommendations and actions mandated in this
report. Though some recommendations have already been acted upon, and many others
are presently in various stages of completion, a complete schedule and implementation plan
for all recommendations in the report will be prepared by September 1, 1989. These task
schedules and timelines will subsequently be reflected in the work plans of Agency program
managers and supervisors at Headquarters and in the Regions. EPA's implementation plan
will manifest a respect for the deadlines that have been set forth in the 1986 SARA
legislation.
The Task Groups anticipate that prompt action on the recommendations contained
in this report will help to regain the credibility necessary to restore public confidence in
the Agency's administration of this very demanding program. Indeed, public trust in the
work of dedicated employees is the most important asset any government program can
hope to achieve. EPA looks forward to working with Congress and with the program's
many constituencies to achieve the public health and environmental goals in Superfund's
enabling statutes. What we seek now is public acceptance of the approach set forth in this
report and room to operate in a supportive environment.
8-2
-------
EPILOGUE
Finally, in addition to the far reaching recommendations in this report, there are
several significant matters that were not capable of being adequately addressed during the
90 day review period. Though each task group identified several noteworthy issues for
further investigation and review, the three issues below were selected as management
concerns substantially intertwined with the action agenda outlined in this report.
STATE/FEDERAL PARTNERSHIP
Because of the large number of sites that require cleanup and the long-term nature
of the Superfund program, it is necessary to reexamine the roles of state and federal
governmental entities in the program. EPA will convene a conference of key state and
federal officials to examine the evolving state/federal relationship and to make further
recommendations to the Administrator on this issue. EPA also will work with the states
to develop a plan for state participation in the Superfund enforcement program.
CONTRACTOR CAPACITY TO MEET SUPERFUND NEEDS
The Offices of Emergency and Remedial Response and Administration should
undertake an analysis of the long-term contract needs of the Superfund program to project
how EPA will meet the workforce demands of the future using a combination of available
technically competent contractors and in-house expertise to ascertain what in-house
expertise EPA should build.
This analysis should examine the complete hazardous waste personnel market,
including: State hazardous waste programs; RCRA corrective action; Departments of
Energy and Defense; and private sector personnel requirements and compensation.
MEASURE AND COMMUNICATE BENEFITS OF SUPERFUND
EPA should identify ways to measure and communicate the direct and indirect
benefits of the Superfund program beyond those associated with the remediation of sites
listed on the National Priorities List. This will require characterization of the progress
made at addressing releases of hazardous substances at sites that are not listed on the
NPL, including the efforts of EPA's Superfund removal program, other federal agencies,
state and local governments, and the responsible parties. It also will require
characterization of the extent of indirect benefits from the Superfund program on such
business sectors as real estate, hazardous waste management and disposal, insurance,
corporate mergers and takeovers, technology development and transfer, and litigation.
-------
APPENDICES
-------
APPENDIX I
ACKNOWLEDGMENTS
THE TASK GROUP
Policy Steering Committee
Lew Crampton, Chairman
Charlie Grizzle John Martin
Jon Cannon Terry Davies
Ed Reich John Skinner
Nancy Firestone Tom Dunne
Rob Wilkins Merrill Hohman
Steve Wassersug Pat Tobin
Basil Constantelos William Child
Patricia Meaney Walter Mugdan
Ron Brand Gary Pulford
Mike Kilpatrick Christine O'Donnell
Lee Paddock Jack McGraw
Lisa Friedman
Task Group Leaders
Tom Dunne, Coordinator Bill Finister
David Ziegele John Cross
Jack Stanton Randy Smith
Hank Schilling Maryann Froehlich
John Skinner Steve Lingle
Margie Fehrenbach Rob Wilkins
Special Advisors
Morgan Kinghorn
Bruce Diamond
Henry Longest
-------
Task Group I
Administration and Field Support
Bill Finister, Task Leader
Dave O'Conner
Clarence Hardy
Calvin Lawrence
Hector Suarez
Clarice Gaylord
Elaine Wright
Leigh Diggs
Colleen Carruthers
Kerry Clough
Arthur Flaks
Steve Tuber
John Brink
Don Patton
Sally Ann Harper
Paul Nadeau
Ika Joiner
Elissa Karpf
Dennis Gagne
Shaheer Alvi
Marie Murphy
Beth Craig
Sally Mansbach
Kathy Petruccelli
John Edwardson
Andrew Carlin
Tom Voltaggio
William Wisniewski
Richard Lemley
Robert Pavlik
Walter Mugdan
Mary McCaffery
Ralph Rizzo
Debbie Dietrich
Steve Kovach
Susan Gordon
Clem Ratstatter
Patricia Hull
Kathy Seikel
Jan Rogers
Stephanie Del Ree
Steve Gilrein
Jack Shipley
Terry Ouverson
Srikant Sastri
Task Group II
Remedial Program Implementation and Oversight
David Ziegele, Task Leader
Irv Auerbach
Beth Cavalier
Sarah Larson
Julie Shannon
Alan Youkeles
Dave Webster
Bill Hagel
Chris Beling
Sharon Frey
Suzanne Priftis
Esther Tepper
Dick Green
Rick Schwartz
Betsy Shaw
-------
Task Group III
Enforcement
John Cross & Jack Stanton, Task Leaders
Ira Leighton
Bruce Smith
Alexis Strauss
Barbara Grimm
Patty Bubar
Mike Christensen
Dave Van Slyke
Charles Openchowski
Cliff Yee
Kathryn Nolan
Johanna Hunter
Carrie Capuco
Mike Thomas
Mike Elam
Paul Nadeau
Frank Russo
Frank Biros
Glenn Unterberger
Earl Salo
Maryann Froehlich
Anna Swerdel
Kathleen MacKinnon
Tony Diecidue
Tim Brincefield
Ann Cardinal
Suzanne Wells
Susan Bullard
Dennis Huebner
Task Group IV
Listening and Responding to the Affected Public
Randy Smith, Task Leader
Hank Schilling
Margaret McCue
Karen Ellenberger
Deny Allen
Mary Gade
Anne Cardinal
Task Group V
Measuring and Commmunicating Program Progress
Maryann Froehlich, Task Leader
Tom Voltaggio
Elaine Stanley
-------
John Cross
Jim Vickery
Karen Burgan
Chris OTtonnell
Craig Zamuda
Sherry Milan
Fred Talcott
Ruth Chemerys
Kathy MacKinnon
Clem Rastatter
Russ Dawson
Margaret Randol
John Wilson
Charlotte White
Dick Worden
Walter Walsh
Susan Bullard
Joan O'Callahan
Fred Undsey
Bill Hansen
Task Group VI
Innovative Technologies
John Skinner & Stephen Lingle, Task Leaders
John Kingscott
Carol Stanzak
Ralph Rizzo
REPORT PRODUCTION PERSONNEL
Production Staff
Kathy Petruccelli
Editorial Staff
Tom Kelly
Kathleen MacKinnon
Barbara Grimm
Joan O'Callahan
Tom DeKay
Staff Support
Sheri Johnson
Paula Hawkins
Roxanne Settle
Gloria BoBo
Pat Savage
Annette DiLascio
Lillian Games
Maria Powers
Evelyn Wray
Bill McCarthy
-------
APPENDIX H
ACRONYMS
ARAR: Applicable or Relevant and Appropriate Requirements
ATSDR: Agency for Toxic Substances and Disease Registry
CERCLA: Comprehensive Environmental Response, Compensation and Liability Act of
1980
DOJ: Department of Justice
FAR: Federal Acquisition Regulations
FEA: Field Enforcement Attorney
FS: Feasibility Study
NEAR: Non-binding Allocations of Responsibility
NCP: National Contingency Plan
NETAC: National Environmental Technology Applications Corporation
NPL: National Priorities List
OSC: On-Scene Coordinator
O&M: Operation and Maintenance
PRP: Potentially Responsible Party
ROD: Record of Decision
RA: Remedial Action
RCRA: Resource Conservation and Recovery Act
RD: Remedial Design
-------
RI: Remedial Investigation
RPM: Remedial Project Manager
SARA: Superfund Amendments and Reauthorization Act of 1986
SITE: Superfund Innovative Technology Evaluation Program
TAG: Technical Assistance Grants
OFFICES OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA):
OECM: Office of Enforcement and Compliance Monitoring
OERR: Office of Emergency and Remedial Response, OSWER
OEETD: Office of Environmental Engineering and Technology Demonstration, ORD
OWPE: Office of Waste Programs Enforcement, OSWER
OPMT: Office of Program Management and Technology, OSWER
ORD: Office of Research and Development
OSWER: Office of Solid Waste and Emergency Response
OARM: Office of Administration and Resources Management
-------
APPENDIX III
GLOSSARY
Administrative Order on Consent: A legal agreement between EPA and potentially
responsible parties (PRPs) whereby PRPs agree to perform or pay the cost of a site
cleanup. The agreement describes actions to be taken at a site and may be subject to a
public comment period. Unlike a consent decree, an administrative order on consent
does not have to be approved by a judge.
Administrative Record: A file which is maintained and contains all information
used by the lead agency to make its decision on the selection of a response action under
CERCLA. This file is to be available for public review and a copy is to be established at
or near the site, usually at one of the information repositories. Also, a duplicate file is
held in a central location, such as a Regional or State office.
Cleanup: Actions taken to deal with a release or threatened release of hazardous
substances that could affect public health and/or the environment. The term "cleanup" is
often used broadly to describe various response actions or phases of remedial responses
such as the remedial investigation/feasibility study.
Community Relations: EPA's program to inform and involve the public in the
Superfund process and respond to community concerns.
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA): A federal law passed in 1980 and amended in 1986 by the Superfund
Amendments and Reauthorization Act. The Acts created a special tax that goes into a
Trust Fund, commonly known as Superfund, to investigate and clean up abandoned or
uncontrolled hazardous waste sites. Under the program, EPA can either:
o Pay for site cleanup when parties responsible for
the contamination cannot be located or are
unwilling or unable to perform the work; or
o Take legal action to force parties responsible for
site contamination to clean up the site or pay
back the Federal government for the cost of the
cleanup.
Consent Decree: A legal document, approved and issued by a judge, that
formalizes an agreement reached between EPA and potentially responsible parties (PRPs)
where PRPs will perform all or part of a Superfund site cleanup. The consent decree
describes actions that PRPs are required to perform and is subject to a public comment
period.
-------
-2-
Cost Recovery: A legal process where potentially responsible parties can be
required to pay back the Federal government for money it spends on any cleanup actions.
De Minimis Settlements: Settlements that are smaller agreements separate from
the larger settlement for the chosen cleanup remedy. Under de minimis settlements,
relatively small contributors of waste to a site, or landowners who bought the site but did
not contribute wastes to it, may resolve their liability.
Emergency: Those releases or threats of releases requiring initiation of on-site
activity within hours of the lead agency's determination that a removal action is
appropriate.
Feasibility Study: See Remedial Investigation/Feasibility Study
Ground Water: Water found beneath the earth's surface that fills pores between
materials such as sand, soil, or gravel. In aquifers, ground water occurs in sufficient
quantities that it can be used for drinking water, irrigation and other purposes.
Hazard Ranking System: A scoring system used to evaluate potential relative risks
to public health and the environment from releases or threatened releases of hazardous
substances. EPA and States use the HRS to calculate a site score, from 0 to 100, based
on the actual or potential release of hazardous substances from a site through air, surface
water, or ground water to affect people. This score is the primary factor used to decide
if a hazardous waste site should be placed on the National Priorities List.
Hazardous Substance: Any material that poses a threat to public health and/or the
environment. Typical hazardous substances are materials that are toxic, corrosive,
ignitable, explosive, or chemically reactive.
Information Repository: A file containing current information, technical reports,
and reference documents regarding a Superfund site. The information repository is
usually located in a public building that is convenient for local residents ~ such as a public
school, city hall, or library.
Mixed Funding: Settlements where potentially responsible parties and EPA share
the costs of the response action and EPA pursues viable non-settlers for the costs EPA
incurred.
National Oil and Hazardous Substances Pollution Contingency Plan: The Federal
regulation that guides the Superfund program.
-------
-3-
National Priorities List: EPA's list of the most serious uncontrolled or abandoned
hazardous waste sites identified for possible long-term remedial response using money
from the Trust Fund. The list is based primarily on the score a site receives on the
Hazard Ranking System. EPA is required to update the NPL at least once a year.
Non-binding Allocations of Responsibility: Process for EPA to propose a way for
potentially responsible parties to allocate costs among themselves.
On-Scene Coordinator: The Federal official who coordinates and directs Superfund
removal actions.
Operable Unit: An action taken as one part of an overall site cleanup. For
example, a carbon absorption system could be installed to halt rapidly spreading ground-
water contaminants while a more comprehensive and long-term remedial
investigation/feasibility study is underway. A number of operable units can be used in the
course of a site cleanup.
Operation and Maintenance: Activities conducted at a site after a response action
occurs, to ensure that the cleanup or containment system is functioning properly.
Potentially Responsible Party: An individual (s) or company (ies) (such as owners,
operators, transporters, or generators) potentially responsible for, or contributing to, the
contamination problems at a Superfund site. Whenever possible, EPA requires potentially
responsible parties, through administrative and legal actions, to clean up hazardous waste
sites they have contaminated.
Record of Decision: A public document that explains which cleanup alternative(s)
will be used at National Priorities List sites. The record of decision is based on
information and technical analysis generated during the remedial investigation/feasibility
study and consideration of public comments and community concerns.
Remedial Action: The actual construction or implementation phase that follows
the remedial design of the selected cleanup alternative at a site on the National Priorities
List.
Remedial Design: An engineering phase that follows the record of decision when
technical drawings and specifications are developed for the subsequent remedial action at
a site on the National Priorities List.
-------
-4-
Remedial Investigation/Feasibility Study: Investigative and analytical studies usually
performed at the same time in an interactive, iterative process, and together referred to
as the "RI/FS." They are intended to:
o Gather the data necessary to determine the type
and extent of contamination at a Superfund site;
o Establish criteria for cleaning up the site;
o Identify and screen cleanup alternatives for
remedial action; and
o Analyze in detail the technology and costs of the
alternatives.
Remedial Project Manager: The EPA or State official responsible for overseeing
remedial response activities.
Remedial Response: A long-term action that stops or substantially reduces a
release or threatened release of hazardous substances that is serious, but does not pose
an immediate threat to public health and/or the environment.
Removal Action: An immediate action taken over the short-term to address a
release or threatened release of hazardous substances.
Response Action: A CERCLA-authorized action at a Superfund site involving
either a short-term removal action or a long-term remedial response that may include,
but is not limited to, the following activities:
o Removing hazardous materials form a site to an
EPA-approved, licensed hazardous waste facility
for treatment, containment, or destruction.
o Containing the waste safely on-site to eliminate
further problems.
o Destroying or treating the waste on-site using
incineration or other technologies.
o Identifying and removing the source of ground
water contamination and halting further
movement of the contaminants.
-------
-5-
Responsiveness Summary: A summary of oral and/or written public comments
received by EPA during a comment period on key EPA documents, and EPA's responses
to those comments. The responsiveness summary is a key part of the ROD, highlighting
community concerns for EPA decision-makers.
Trust Fund: A Fund set up under the Comprehensive Environmental Response,
Compensation, and Liability Act to help pay for cleanup of hazardous waste sites and to
take legal action to force those responsible for the sites to clean them up.
Unilateral Administrative Order: A legal document issued by EPA directing a
potentially responsible party to perform site cleanup. It sets forth the liability of the
party for the cleanup, describes actions to be taken, and subjects the recipient to penalties
and damages for noncompliance. Unilateral orders may be enforced in court.
•&U.8. GOVERNMENT PRINTING OFFICE: 1M-62S-330
------- |