^ .4
HW
EPA
520
B
93
003
          INTRODUCTION TO THE
                SUPERFUND
         ENFORCEMENT PROGRAM
             Two-Day Training Course
         PARTICIPANTS' VIEWGRAPH GUIDE
U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF WASTE PROGRAMS ENFORCEMENT
EPA-520-B-93-003
FY94

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1/T r>/
                            ENFORCEMENT
                              OVERVIEW
                    OBJECTIVES OF THIS MODULE
                      Review the Framework and History of
                      Superfund

                      Outline the Goals of the Enforcement
                      Program

                      Introduce Enforcement Authorities and „  ;
                      Statutes  .                     _   :

                      Identify the Major Enforcement Activities in
                      Relationship to the Superfund Administrative
                      Improvements
                                              iry

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  BACKGROUND TO SUPERFUND
Neither the Resource Conservation and Recovery
Act (RCRA) nor the Clean Water Act (CWA) Provided
Adequate Federal Environmental Authority for
Hazardous Waste Cleanup
       WHAT IS SUPERFUND?
   Problem:
Solution:
Program:
Past Waste Disposal
Current Accidental
Releases
(Non-Petroleum)
 CERCLA
 Superfund
 Responses
                IMP I

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   CERCLA IS A UNIQUE LAW
Requires Reporting of Spills and Hazardous Sites
Provides Direct Federal Response Authority
Establishes Strong Enforcement Authorities
Establishes Liability and Provides for Cost
Recovery
Establishes an EPA-State Partnership for Cleanup
    CERCLA IS A UNIQUE LAW
             (Continued)
Establishes a Response Trust Fund
Provides for Claims Against the Fund
Establishes Cleanup Requirements and
Schedules
Provides for Community Involvement During
Cleanup
Establishes Health-Related Activities

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          THE PROGRAM
The Mission of CERCLA is Straightforward:


•  Find the Nation's Worst Chemical Contamination
  Problems and Clean Them Up

•  Set Up the Legal and Institutional Mechanisms to
  Clean Up Sites as Expedltiously as Possible

•  Use Enforcement Authorities and the Response
  Trust Fund to Get the Job Done
SUPERFUND RESPONSE ACTIVITIES
                     Removal
                     Remedial
                     Enforcement

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    SUPERFUND PRINCIPLE
      THE RESPONSIBLE
       PARTY WILL PAY
OVERALL ENFORCEMENT GOALS
  Obtaining PRP Response
        Ensuring Appropriate PRP Response
  Recovering Agency Costs

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WHAT IS THE LEGAL FRAMEWORK?
   CIVIL
   ADMINISTRATIVE
   ACTIONS (e.g., AOC,
   UAO, Administrative
   Subpoena)
     CIVIL OR CRIMINAL
     JUDICIAL ACTIONS
     (e.g., consent decrees,
     dvil suits)
        FOR REACHING SETTLEMENT
        OR COMPELLING RESPONSE
  RESPONSE AND ENFORCEMENT
            AUTHORITIES
    CERCLA 6

    104(a)

    104(e)

    106

    107
    CONTENTS

PRPs Conduct RI/FS

PRPs Provide Information

PRPs Clean Up Site

PRPs Reimburse EPA   -  :

States Participate in Federal-Lead
Enforcement Actions
    122
Negotiations & Settlements
Procedures

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         RULES OF EVIDENCE
                         Burden of Proof
               |    [I   •  Chain of Custody
                         Elements of a Case
 WHO ARE KEY PLAYERS AT EPA?
Regions
RPM
OSC
Civil Investigators
Regional Attorneys
Cost Recovery Coordinator
Community Relations
Coordinator (CRC)
Administrative Record
Coordinator (ARC)
Waste Management
Division (WMD)
Environmental Services
Division (ESD)
 Headquarters

Office of Emergency and
Remedial Response
(OERR)
Office of Waste Programs
Enforcement (OWPE)
Office of Enforcement
(OE)         ;  ;

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WHAT OTHER KEY PLAYERS ARE
           INVOLVED?


Other
Federal
Agencies




EPA ,
^ : ' JL


Natural
Trustees
^ ; ' ' i-^

       States
PBPs
 SUPERFUND ADMINISTRATIVE
         IMPROVEMENTS
   To Enhance -
   • Enforcement Fairness
   • Cleanup Effectiveness and Consistency
   • Meaningful Public Involvement
   • State Role                     :
   • Continuing Management and Enforcement
    Initiatives: SACM, Enforcement First, etc.
                 8

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     HOW DO ADMINISTRATIVE
      IMPROVEMENTS WORK?
      REGIONAL INITIATIVES
      Case Studi
                      Target Data
HEADQUARTERS MEASURES NATIONAL SUCCESS
ENFORCEMENT ISSUES AND SACM
    •  Early Identification of PRPs

    •  Timing and Content of Negotiations

    •  Choice of Enforceable Agreement
      (Administrative vs. Judicial)

    •  Cost Recovery Issues
      - Expedited Cost Recovery Cases
      - Potential for Challenges
      - Importance of Record Keeping

    •  Balancing Goals of SACM and
      "Enforcement First"

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     COURSE COMPONENTS
The Remaining Sections of Intro to SF Enforcement
Cover:
    Integrated Timeline
    Identifying PRPs
    Negotiations and Settlements
    Administrative Record
    PRP Oversight
    Recovering Agency Costs
                  10

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 POTENTIALLY RESPONSIBLE
      PARTY LIABILITY
OBJECTIVES OF THIS MODULE
       Define PRP Liability

       identify Classes of PRPs
             11

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                LIABILITY
     CERCLA Imposes liability when:
     • There was a release or threat of release
     • Of a hazardous substance
     * From a facility
     • Into the environment
     • Which for cost recovery actions, resulted in
       the Incurrence of response costs.
             PRP LIABILITY
Liability of PRPs at a Site Is Strict and Joint and
Several

   •  Strict = Liable Without "Fault"
   • Joint and Several = Liable for Entire Cost
                      12

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            WHO ARE PRPS?
  There Are Four Classes of PRPs:
       •  Current Owners and Operators
       •  Former Owners and Operators (At Time
         of Disposal)
       •  Generators
       •  Transporters (if They Selected the Site)
CURRENT OWNERS AND OPERATORS
 Current Owners:
 •  Are Anyone With an
   Ownership Interest
   -   Full Title
      Landlords and Tenants
 •  Need Not Have Contributed to the Release
 Current Operators:
 •  Anyone Who Controls Operations at the Site
                      13

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FORMER OWNERS AND OPERATORS
 Former Owners and Operators:
  Are Anyone That Owned the
  Property at the Time
  of Disposal
  Need Not Have Known That
  the Disposal Was Taking Place
             GENERATORS
 Generators:

 •  Are a Broad Class Including Anyone Who
   Arranged for Disposal or Treatment of Hazardous
   Substances

 •  Can Include Owners and Operators, If They Sent
   the Waste to Another Site (Liability Follows the
   Waste to Other Sites if the Waste Is Moved)
 *  Can Be Liable Even if Someone Else Picked the
   Site
                     14

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            TRANSPORTERS
Transporters:
      Accept Hazardous Substances
      for Transport and Select the
      Site Where Hazardous
      Substances Would Be Disposed
      Are Not Liable If the Facility Is
      Selected by Someone Else
               DEFENSES
          Only Defenses to Liability Are:
            Act of God
            Act of War
          • Act of a Third Party
                      15

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 POTENTIALLY RESPONSIBLE
   PARTY SEARCH PROCESS
OBJECTIVES OF THIS MODULE
    Define the purpose of PRP Searches
    Outline the PRP Search Process
             16

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       PRP SEARCH GOALS
    The Purposes of a PRP Search Are to:

    •  Identify PRPs Who May Be Liable Under
      CERCLA §107

    •  Provide Information to Assess PRP
      Liability and Ability to Pay

    •  Document Evidence That May Be Used
      in Cost Recovery and CERCLA §106
      Actions
        OVERVIEW OF THE
      PRP SEARCH PROCESS
Site Discovery

Preliminary Search
PRP Search Plan
Initial Baseline Search
Tasks
I04(e) Letters to
Owners/Operators
Compile, Organize,
Analyze Responses
Baseline Report

Management Review
104(e) Letters to
Generators and/or
Transporters
Specialized Tasks
Interim-Final Report
Update Report
                   17

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  WHO ARE THE KEY PLAYERS?
                            Regional
                            Attorneys
 Ml/Criminal
Investigators
FIRST STEPS TO DEVELOPING THE
        PRP SEARCH PLAN
•  Develop a Plan for Managing the PRP
  Search

•  identify Special Problems

•  Develop Detailed Scope of Work for \ 2
  Contractors
                 18

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CONDUCT THE BASELINE SEARCH
       The Ten Baseline Tasks Are Interrelated
       The Baseline Search Is Conducted
       Based on the Search Plan
       Search Results Are Compiled Into the
       Baseline Report
     THE TEN BASELINE TASKS
   •  Agency File Review
   •  Records Compilation
   •  Interviews With Government Officials
   •  Title Search
   •  Site History
   •  PRP Name and Address Update
   •  PRP Status
   •  PRP Financial Status
   •  Issue CERCLA §104(e)/RCRA §3007 Letters
   •  Report Preparation
                    19

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ISSUE CERCLA §104(e) LETTERS
          Used to Request
          Information From PRPs

          Helps to Identify Other
          PRPs

          Helps RPM to Decide
          Whether PRP Should
          Receive Special Notice
          Letter
 PREPARE BASELINE REPORT
   The Baseline Report Summarizes Information
   Obtained From Baseline Activities
   AM Possible PRPs Should Be Listed on the
   Report
                 20

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  CONDUCT SPECIALIZED TASKS
  There are Four General Categories of Specialized
  Tasks:

  •  Sources of Information
  •  Waste Stream Analysis
  •  Data Bases
  •  Additional Tasks
WASTE-IN LISTS AND VOLUMETRIC
              RANKINGS
  Waste-in List
  - A Listing of the Volume and Nature of Substances
    Contributed by Each PRP Identified at a Facility

  Volumetric Ranking
  - A Ranking, in Descending Volumetric Order, of
    the Hazardous Substances or PRPs at a Facility
                   21

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 WHY DEVELOP WASTE-IN LISTS AND
    VOLUMETRIC RANKINGS AND
      RELEASE THEM TO PRPs?
          Statutory Requirement

          Facilitate Settlement

          Lower Transaction Costs

          Ensure Fairness
  ADMINISTRATIVE SUBPOENA
Authorized Under
§122(e)(3)(B) of CERCLA

Compels Recipient to
Attend an
Administrative Hearing
and Answer Questions
Under Oath

Refusal to Appear May
Result in a Court Order
                  22

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ISSUE ADDITIONAL §104(e) LETTERS
   Second Issuance Can Be Used for Generators
   and Transporters

   Used as Folfow-Up Request When PRPs Fail
   to Respond Adequately or More Information Is
   Needed
 PREPARE INTERIM-FINAL REPORT
    The interim-Final Report:
      Substantiates the Evidence Used to Select
      General Notice Letter (GNL) Recipients

      Should Be Updated as New Information'
      Surfaces

      Should Be Available When GNLs Are Sent
                    23

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ISSUE GENERAL NOTICE LETTERS
    AGNL:
    •  Designates the Recipient as a PRP
      Encourages Coordination Among PRPs
       ONGOING ACTIVITIES
    •  The PRP Search Does Not End With the
      Issuance of GNLs

    •  Any New Leads Should Be Pursued and
      New PRPs Identified Whenever Possible

    *  PRP Liability Data Collected During trie
      Search Should Be Kept Up-to-Date
                   24

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    LU

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PRP SEARCHES AND SACM
          IN REVIEW
  Any New Leads Should Be Pursued and
  New PRPs Identified Whenever Possible

  PRP Liability Data Collected during the
  Search Should Be Kept Up-to-Date and
  Documented Thoroughly

  The PRP Search May Continue throughout
  the Remedial Process

  A Thorough PRP Search Plan Should Be
  Developed and Baseline Tasks Should
  Follow the Plan
               26

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       NEGOTIATIONS
       & SETTLEMENTS
          OBJECTIVES
Identify the Types of Negotiations Which
Frequently Take Place
List Possible Outcomes of Negotiations
Describe the Negotiation Process
Identify Settlement Tools
Describe Settlement Terms
                27

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WITH WHOM DOES EPA NEGOTIATE?
       Negotiations Take Place Among:

         • EPA Staff
         • Other Federal Agency Staff
         • State Personnel
         • Contractors
         • Potentially Responsible Parties
          (PRPs)
         • Public
PREPARATION FOR A NEGOTIATION
        Develop the Negotiation Plan
        Review the PRP Search
        Encourage PRPs to Form Steering
        Committees
        Prepare Strategies to Counter
        Anticipated Difficulties
        Identify Common Ground
                     28

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  NEGOTIATION PROCESS
                       YES
     DEVELOPING THE
    NEGOTIATION PLAN
The Negotiation Plan Sets Forth Negotiation
Objectives and Strategy and Establishes a
Schedule for Negotiations

The Negotiation Plan Is Developed by the RPM
or OSC and the Office of Regional Counsel  ,
(ORC) Attorney Working Together

The Plan Forms the Basis for the Pre-Referral
Litigation Report (PRLR)
               29

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       INFORMATION EXCHANGE
  Information Exchange May Be Accomplished Through
  Coordination With the PRP Steering Committee

  CERCLA §104(6) Authorizes EPA to Issue Requests for
  Information to PRPs (104(e) Letters)

  Through This Process, an Exchange of Information May
  Be Encouraged -

  -   EPA Supplies PRPs With Information

  •   PRPs Come Forth With Information
  ISSUE SPECIAL NOTICE LETTERS
Special Notice Letters Accomplish the Following:

•  Initiate the Process of Formal Negotiations
  Between EPA and PRPs

•  Invoke a Statutory Moratorium on EPA-Conducted
  Response Activities                    ~  :
•  Solicit a GFO From the PRPs
                         SPECIAL NOTICE!
                     30

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 HOW LONG IS THE NEGOTIATION
           MORATORIUM?
 For Remedial
   Investigation/Feasibility
   Study(RI/FS):
60 Days
90 Days if PRPs
Submit GFO to EPA
 For Remedial Design/
   Remedial Action
   (RD/RA):
60 Days
                          120 Days if PRPs
                          Submit GFO to EPA
WHAT IS IN A GOOD FAITH OFFER?
  A GFO Demonstrates the PRP's Willingness and
  Qualifications to Conduct the RI/FS or RD/RA
  A GFO Demonstrates a PRP's :


    -  Financial Ability
    -  Management Capabilities

    -  Technical Skills
                   31

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 SUPERFUND AMENDMENTS AND
 REAUTHORIZATION ACT (SARA)
       SETTLEMENT TOOLS
  Mixed Funding

  Non-Binding Preliminary Allocation of
  Responsibility (NBARs)

  De Minimis Settlements
    WHAT IS MIXED FUNDING?
EPA Settles With Fewer Than All PRPs for Less Than
100% of Response Costs

• Preauthorization
• Mixed Work
• Cashout                      - .:
                32

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WHEN ARE PRPs GOOD CANDIDATES
         FOR MIXED FUNDING?
    Fund Commitment Is Small and Settling PRPs Offer
    a Substantial Portion of the Total Cost of Cleanup

    EPA Has a Strong Case Against Non-Settlors
    THERE MUST BE VIABLE NON-SETTLORS TO
    PURSUE IN A MIXED FUNDING SETTLEMENT
          WHAT IS AN NBAR?
  An NBAR is a Non-Binding Preliminary Allocation of
  Responsibility Amongst PRPs

      •  Allocation of Responsibility: Allocation
        Among PRPs of 100% of Response Costs

      •  Non-Binding: Not Binding on EPA or -
        PRPs and Cannot Be Admitted as
        Evidence in Court
                     33

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WHAT IS A DE MINIMIS SETTLEMENT?
  A De Minimis Settlement Is a Final Settlement Between
  PRPs and EPA for a Minor Portion of the Response
  Costs Reached Under CERCLA §122(g)

  •  De Minimis Generators

  •  De Minimis Landowners
        WHEN ARE PRPs GOOD
       DE MINIMIS CANDIDATES?
     PRP Meets Generator/Landowner Requirements

     Past and Future Costs Identified

     Good Waste-In Lists Exist

     Non-Viable Shares Are Identified       -
                     34

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      POINTS TO CONSIDER IN A
POTENTIAL DE MINIMIS SETTLEMENT
   Refining the Volumetric Contribution
   Determining a Volumetric Cutoff
   Refining Cost Estimates
   Developing a Premium and/or Reopeners to Reflect
   the Uncertainties of Cost Estimates
  OTHER SETTLEMENT INCENTIVES
       Negotiation timeline with firm deadlines
       Aggressive use of UAOs
       Aggressive pursuit of cost recovery
       Aggressive pursuit of non-settlors
                    35

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    NEGOTIATION OUTCOMES
            RI/FS, REMOVAL
Administrative Order
  on Concent
    <*OC)
Administrative Order
   Unilateral
   (UAO)
                Fund-Financed
               WFS or Removal
NEGOTIATION OUTCOMES - RD/RA
    UAO
                              Aocwtthjttmjnlmit
   CERCLA|l06R.larr.l       ,         Fund-Financed
                 Content Decree       Cleanup
                    (CD)
                     36

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 ROLE OF UNILATERAL ORDERS
Unilateral Orders:

•  Can Be Used to Force Cleanup From Reluctant
  PRPs

•  May Encourage PRPs to Settle

•  Lay the Groundwork for Treble Damages
  Claims
 UNILATERAL ORDER PROCESS
  Unilateral Orders Require Finding of imminent
  and Substantial Endangerment

  EPA May Continue to Negotiate With PRPs After
  the Order Is Issued

  If PRPs Can Prove That the Order Was Issued .
  Improperly, They Can Petition EPA for Their Costs
  Under CERCLA §106(b)(2)
                  37

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  CERCLA §106 LITIGATION ROLE
CERCLA §106 Litigation:
•  Forces PRPs to Abate Imminent and Substantial
  Endangerment
•  May Be Preferable to Unilateral Orders If:
  - The Court Is Likely to Encourage Compliance on
    the Part of the PRPs
  - A Preliminary Injunction Is Sought
     ADMINISTRATIVE ORDERS
NO


Unilateral
Order Signed
byRAand
Sent to PRPs
                   38

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      CONSENT DECREES
SETTLEMENT TERMS -- PREMIUMS
     • Cover Risk of Cost Overruns and
       Remedy Failure


     • Based on Volumetric Share


     • Documented for Future Costs
                39

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    SETTLEMENT TERMS -
CONTRIBUTION PROTECTION
Sections 113 and 122 of CERCLA provide that:
•  A person who has resolved its liability to the
  U.S. or a State
•  In an administrative or judicially approved
  settlement
•  Shall not be liable for claims for contribution
•  Regarding matters addressed in the
  settlement.
   SETTLEMENT TERMS -
  COVENANTS NOT TO SUE
          Present Liability
          Future Liability
               40

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      SETTLEMENT TERMS
            REOPENERS
        Reopeners allow EPA to Revisit the
        Settlement
             IN REVIEW
PRP Response Can Be Obtained Through Two
Processes:
  Administrative - Between EPA and the PRP
  Judicial - Between EPA, DOJ, the PRP, and a Judge
                  41

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     ADMINISTRATIVE
       RECORD FOR
     SELECTION OF A
    RESPONSE ACTION
    OVERVIEW OF THE
ADMINISTRATIVE RECORD
What Is the Purpose?
What Are the Contents?
What Is the Structure?
What Is the Compilation Process?
What Are the Roles and Responsibilities?
What Are (he Potential Challenges to the
Administrative Record File?
What Is the Importance of Preparing a
Quality Administrative Record File?
             42

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              PURPOSE
CERCLA §113 Limits Judicial Review of Issues
Concering the Adequacy of a Response Action to
Information Contained in the Administrative Record
Provides for Informed Public Participation in the
Selection of Remedy
   PURPOSE: LEGAL MANDATE
                      Law
                     Regulation

                       I
                      Guidance
                   43

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    REGULATORY REQUIREMENTS
     Actions Requiring a Record
     Contents of the Administrative Record File
     Timing of Public Availability
     Notification Procedure
     Location of the Administrative Record File
              CONTENTS
Documents Included

               Documents Referenced
                              Documents Excluded
                    44

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   DOCUMENTS INCLUDED IN THE
   ADMINISTRATIVE RECORD FILE
       Factual
       Information/Data
  Enforcement
  Documents
 DOCUMENTS REFERENCED IN THE
   ADMINISTRATIVE RECORD FILE

Privileged Information (Summarized or Redacted)
Sampling Data
Agency Guidance Documents Used to Select Remedy:
   Pre-Remedial
   Removal Action
   RI/FS
   ARARs
   Water Quality
•  Risk Assessment
-  Cost Analysis
-  Community Relations
-  Enforcement
-  Selection of Remedy/
  Decision Documents
Publicly Available Technical Documents
                  45

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   DOCUMENTS EXCLUDED FROM
THE ADMINISTRATIVE RECORD FILE
    Contractor Work Assignment Files
    Cost Documentation
    MRS Information
    FOIA Requests
    Legal Source Material
    NPL Rulemaking Docket Information
    PRP Liability Information
    Draft Documents and Internal Memoranda
            STRUCTURE
                  46

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    COMPILATION PROCESS
 Cdtoct
 Conduct T«ch~c*l
  	.
to  IHU*
   Pubic	
   Nou»  Prapwt
 DccunvMa
Supcrfund
      H	1	1	1	H
ROLES AND RESPONSIBILITIES
         o
OSC/
RPM
Raeord    I:Cwrtr»d«>r
              Other EPA
             ;
               47

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                 OSC/RPM
        •  initiates Compilation of the
          Administrative Record File
        *  Reviews all Collected Documents and
          Selects Those that Should Be Included in
          the Administrative Record File
        •  Screens Documents for Privileged
          Information

        *  Characterizes Documents for Contractor
          to Prepare Index
        •  Organizes File and Delivers to Attorney
          for Legal Review
      ADMINISTRATIVE RECORD
              COORDINATOR
o
Notifies Contractor of Need for New
Administrative Record File
         Oversees Contractor Activities
         Coordinates the Administrative Record,
         File Compilation Process
         Provides for Public Access to the
         Administrative Record File
                      48

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      CONTRACTOR
     Collects All Necessary Documents

     Prepares Index and Paginates
     Documents for Administrative Record
     File
     Finalizes Organization of Documents
     Into the Administrative Record File
     Structure

     Assembles Administrative Record Files
     Into Binders
     Delivers Finished Administrative
     Record Files
 OTHER EPA OFFICES
ORC
Reviews the Administrative Record File to:

 •  Ensure Compliance With Agency
   Guidance in Terms of Contents and
   Public Participation Procedures
 -  Ensure That Privileged Documents Are
   Included Only in the Confidential Section
OPA

Coordinates with the Public to Establish
Information Repositories and Identify Local
Newspapers for the Public Notice
              49

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    POTENTIAL CHALLENGES TO
THE ADMINISTRATIVE RECORD FILE

  Challenges:
  •  Decision Selecting the Response Action Is
     Arbitrary and Capricious
  •  Agency Did Not include Important Information
  •  Agency's Information Is Flawed

  Results:
  •  May Broaden the Scope of the Trial to Include
     New Discovery
  •  May Result in a New Response Action Being
     Chosen
  •  May Result in Cost Recovery Problems
                    50

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itta

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     ENSURING ADEQUATE
         PRP RESPONSE
            OVERVIEW
•  Terms of Compliance Are Set Forth in the
  Administrative Order (AO), Consent Decree
  (CD), or Work Plan

•  Oversight Involves Monitoring Such
  Compliance

•  Three Activities Are Essential to Effective
  Oversight

  - On-site Inspections
  - Review of Deliverables
  - Status Meetings
                  51

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      OVERSIGHT OBJECTIVES
   EPA Should Verify That Work Complies With:

   • The AO or CD, Statement of Work, Work Plan,
    and Sampling and Analysis Plan

   • Generally Accepted Scientific and Engineering
    Methods

   • EPA Information Needs for Selection of the
    Remedy (if PRPs Are Conducting the Remedial
    Investigation/Feasibility Study (RI/FS))
    THIRD-PARTY INVOLVEMENT
CERCLA §104(a) Dictates That EPA Obtain an Oversight
Assistant to Provide Support in Oversight Activities for
RI/FS, Which May Include:

•  Assisting the RPM or OSC on General Oversight
   Tasks

•  Monitoring PRP Field Activities             :

•  Conducting Quality Assurance Tasks

•  Preparing a Risk Assessment
                     52

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         ON-SITE INSPECTIONS
    Periodic On-Site Inspections:

    •  Provide Necessary Verification of PRP
       Compliance

    •  May Involve Split Sampling and Photography

    •  Require Close Review of the Work Plan to
       Establish Compliance Criteria
        DELIVERABLE REVIEWS
The OSC or RPM Should Carefully Review Each
Deliverable Required From the PRP to:

•  Ensure That Technical Content Meets EPA
   Standards

•  Track Technical Progress
•  Review Consistency With Work Plan Requirements
                      53

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         STATUS MEETINGS
  Held on a Monthly or Weekly Basis

  Ensure Regular Progress Towards Project
  Completion

  Allow Discussion of Any Problems That May Arise
     VIOLATIONS/COMPLIANCE
           NEGOTIATIONS
 Notification
Negotiations
Informal Discussion
Formal Notice of
Violation
                               Return to
                              Compliance
Assessment
of Penalties
               EPA Takeover
                   54

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PENALTY ENFORCEMENT ACTIONS
NON-COMPLIANCE
    WITH A
  SETTLEMENT
PENALTIES
      STIPULATED PENALTIES
     Are Set Forth in the Terms of the AOC or CD

     Complement and Reinforce Statutory
     Penalties Outlined in CERCLA §104, §106,
     and §109

     Are Authorized by CERCLA §122 for CDs  .
     and AOs                     '

     Provide an Incentive for PRPs to Conduct
     Cleanup Work Properly
                  55

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   STATUTORY PENALTIES
                                               \
CERCLA §104 Penalties
CERCLA §106 Penalties
CERCLA §109 Penalties
               56

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      RECOVERING
     AGENCY COSTS
       OVERVIEW
Cost Recovery

-  Purpose
-  Strategy
-  Process

Cost Documentation

•  Purpose
-  Contents
-  Roles and Responsibilities
 PROOF
   OF
EXPENSES!
             57

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   COST RECOVERY PRINCIPLE
If No Settlement Is Reached, EPA May Clean Up
the Site Using Superfund Monies and Recover Costs
From Potentially Responsible Parties
                  S



            THE RESPONSIBLE
              PARTY PAYS
   COST RECOVERY STRATEGY
      Prioritize Cost Recovery Cases:

     • Amount of Money Expended
     - Potential for Cost Recovery

      Decide Whether to Pursue Cost Recovery:

     - PRP Viability
     - Available Evidence
     - Adequate Resources
                  58

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        STATUTE OF LIMITATIONS
Under CERCLA §113(g), Cost Recovery Must Be Initiated
Within:

•   3 Years of the:
   - Completion of a Removal
   - Subsequent Cost Recovery Actions Following a
    Declaratory Judgment Must Be Filed Within 3 Years of
    Completion of All Response Actions at the Site

•   6 Years of the:
   - Date a Regional Administrator Signs a Removal Waiver
   - Actual On-Site Start of Construction of the Remedial
    Action (RA) or Award of Contract
      COST RECOVERY PROCESS
   FUND
  RESPONSE
    COST
DOCUMENTATION
JU,
I*]
               DEMAND
               LETTER
NEGOTIATION
f
                                      SETTLEMENT
                                      LITIGATION

                       59

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          WRITTEN DEMANDS
Written Demands:

•  Are Requests for Reimbursements to the Fund
   Trigger the Accrual of
   Pre-Judgment Interest

   Are Authorized by the Regional
   Administrator or His/Her Delegate
   Are Made for Each Response
   Action in which EPA Incurred
   Expense and Seeks
   Reimbursement
             NEGOTIATIONS
Cost Recovery Negotiations Can Occur at Various
Points in the Process:

•   After Responses to the Written Demand

•   Before Referral to the Department of Justice (DOJ)

•   During Discovery
                     60

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  ADMINISTRATIVE SETTLEMENTS
According to §122(h), EPA and the Potentially
Responsible Parties (PRPs) Can Use an Administrative
Settlement if:

•  Settlement Occurs Before the Case Is Filed in Court

•  The Total Amount In Question (Excluding Interest) Is
  Less Than $500,000
Otherwise, DOJ Must Concur in the Settlement
      §107 COST RECOVERY
LITIGATION - PROCESS OVERVIEW
   PHASE I
PHASE 2
PHASE 3
Cost
Recovery
Preparation
*
Referral
To DOJ
*
Preparation
for Trial
                  61

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      §107 COST RECOVERY
       LITIGATION - PHASE I
      Cost Recovery Preparation
             Produce
              COM
             Documenta-
              tion
Decide to
Recover
 Costs
    §107 COST RECOVERY
     LITIGATION - PHASE II
          Referral to DOJ
Develop
Referral
Package
              Send
            Referral to
              DOJ


DOJ Files.
Complaint
              62

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     §107 COST RECOVERY
     LITIGATION - PHASE III
       Preparation for Trial
ENFORCING SETTLEMENTS
     AND JUDGMENTS
The Regional Financial Management Office
and the Cost Recovery Coordinator Should
Monitor PRP Payments to Financial
Management System Accounts to Verify
Compliance
Failure on the Part of PRPs to Make Cost
Recovery Payments May Result in
Follow-Up Enforcement Action
              63

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      COST DOCUMENTATION
                Purpose
                Contents
                Rotes and Responsibilities
PURPOSE OF COST DOCUMENTATION
 • Basis for Cost Recovery
 » Provides Evidence of EPA's
  Cleanup Costs
  PROOF
    OF
EXPENSES!
                64

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COST DOCUMENTATION CONTENTS

  •  Correspondence
  •  Cost Summary
  •  State Contracts and Interagency Agreements
     (lAGs)
  •  State Cooperative Agreements
  •  Agency Payroll, Indirect Costs, Travel Software
     Package for Unique Reports (SPURs)
  •  National Enforcement Investigation Center (NEIC)
     Documents
  COST DOCUMENTATION ROLES
       AND RESPONSIBILITIES

    • RPM/OSC
    • Cost Recovery Coordinator
    • Office of Regional Counsel (ORC)
    • Regional Finance                -   :
    • Office of Waste Programs Enforcement
      (OWPE)
    • Financial Management Division (FMD) in
      EPA Headquarters
    . DOJ
                   65

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