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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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:£:,.*. ;>..>,;.>:*;:;.
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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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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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