-------

-------
*
&EPA
        United States Environmental Protection Agency
                Washington, DC 20460
OSWER Directive Initiation Request
                                                                                      Interim Directive Number
                                                                                         9835.1
                                         Originator Information
       Name of Contact Person
         John Gross .
                                Mail Code
                                    WH-527
                                           Telephone Number
                                           475-6770 '
       Lead Office
         D OERR
         D OSW
               D OUST
               (El OWf>£_
               D AA-OSWER
                                    Approved for Review
          Signature ofOffice
           f  ( ' l-O
Date
      Title
         Participation of Potentially Responsible Parties in Development of
         Remedial Investigations  and Feasibility Studies.
      Summary of Directive
               This memorandum sets forth the policy and  procedures  governing
               participation of potentially responsible parties  (PRPs)  in
               development of remedial investigation (RI)  and feasibility
               Studies  (FS) under CERCLA.  It discusses:
               1) procedures for notifying potentially responsible parties
                  when  the Agency has identified target sites for the development
                  of RI/FS,
               2) circumstances in  which RI/FS may be conducted by potentially
                  responsible parties, and
               3) the principles governing PRP participation in Agency-financed
                  RI/FS.
               Key Words:  participation, development, remedial investigation,
                           studies, feasibility,  RPs, sites
      Type of Directive (Manual. Policy Directive. Announcement, etc.!
                                                                Status
                                                                   Q Draft
                                                                   0 Fin.1
                                                                                           CD New
                                                                                           LJ Revision
      Does this Directive Supersede Previous Directive(s)?   |  | Yes   |^T No   Does It Supplement Previous Oirective(s)?   [ |  Yes   -f\J No
        "Yes" to Either Question. What Directive (number, title)
      Review Plan
         D AA-OSWER   D OUST
         D OERR       D OWPE
         LJ OSW       LJ Regions
                                  OECM
                               Q OGC
                               D OPPE
                             Other (Specify)
      This Request Meets OSWER Directives System Format
      Signature of Lead Office Directives O
      Signature of OSWER Directives Officer
                                                                                     Date
                                                                             Date
      EPA Form 1315-17 (tO-BS)

-------

-------
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         WASHINGTON, D.C. 20460
                             MAR 2 0 1984
MEMORANDUM

SUBJECT:  participation of Potentially Responsible  Parties  in
          Development of Remedial  Investigations  and  Feasibility
          S tud i  surjde r CERCLA
FROM:
TO.:
          Lee M. Thomas, Assistant Administrator
          Office of Solid ..Waste and Emergency  Response
          /  '   -r   /TV -/^  -
          I   \^**^s^.b ^\.  J ^4^-*^.
          SetrrtneyTl. price, Assistant Administrator
          Office of Enforcement and Compliance Monitoring

          Regional Administrators, Regions  I-X.
I.   Introduction

    • This memorandum sets forth the policy and procedures
governing participation of potentially  responsible  parties  (PRPs)
in development of remedial investigations  (RI) and  feasibility
studies (FS) under the Comprehensive Environmental  Response,
Compensation, and Liability Act {CERCLA).  !   It  discusses:

 o the circumstances in which RI/FS may  be conducted  by  potentially
   responsible parties,

 o the procedures for notifying potentially  responsible  parties
   when the Agency has identified target sites for  the development
   of RI/FS, and

 o t"he principles governing PRP participation in Agency-financed
   RI/FS.
l.The Agency is currently developing a comprehensive  policy
  concerning EPA participation in state-lead enforcement  under.
  CERCLA.  The applicability of the RI/FS policy  to state-rlead
  enforcement actions will be fully discussed  in  this forthcoming
  memorandum.

-------

-------
^        ,            ™ *5 ,*,,


 II. Previous Approaches to PRP Participation in RI/FS

      Under earlier policy, the Agency negotiated with potentially
 responsible parties (PRPs) for individual phases of site response
 (i.e., RI/FS, design, construction).  PRPs could negotiate to
 conduct the RI/FS without discussing the remedial design and
•construction.  Fund-financed RI/FS were generally not performed
 until the Agency concluded that negotiations with private parties
 were unsuccessful.  Negotiations concerning later phases of
 remedial action would occur after the RI/FS was completed.

      This approach was designed to secure cleanup by PRPs instead
 of Superfund financed cleanup, if privately financed cleanup
 could be accomplished in a timely manner.  This policy was
 initially expressed by EPA in the "Guidelines for Using the
 Imminent Hazard, Enforcement and Emergency Response Authorities
 of Superfund and Other Statutes" issued pursuant to §106(c) of
 CERCLA at 47 Fed. Reg'. 20664 (May 13, 1982).
                                     f
      The Agency identified several drawbacks to the approach
 of negotiating for individual phases of the cleanup:

      First, the negotiations for the RI/FS were often unsatisfactory
 because of frequent disagreements on the nature and scope of the
 RI/FS.  In particular,.protracted negotiations occurred over the
 details of investigating the hazard, both on and off-site.
 Disagreements also arose .over sampling locations and frequency',
 well placement, analytical methods,  quality control, and level
 of detection.  Substantial delays occurred even when agreement was
 eventually reached.

      Second,  some RI/FS conducted by potentially responsible
 parties were  inadequate and of little use to EPA in determining
 the extent of the remedy for a site.  Because the Agency had not
 published guidance on conducting RI/FS, the only way to avoid
 these problems was for the Agency to provide extensive oversight
 and review of the RI/FS under development.  In certain instances,
 the PRPS revised the  completed RI/FS after further discussions
 with the Agency,  or the Agency redid the RI/FS using CERCLA
 funds. . These inadequacies and revisions demanded resources from
 the Fund and  delayed  site response.

      Third, the Agency's willingness to negotiate with potentially
 responsible parties for the RI/FS for any or all sites affected .
 the pursuit of the Agency's priorities.  Occasionally, resources
 were diverted from on-going litigation, or the initiation of
 action at sites where prompt response was desirable.  Priorities
'for the use of the Agency's enforcement resources were established
 on a "de facto" basis by PRPs, based upon their willingness to
 negotiate at  particular sites, rather than on the Agency's assessment
 of the sites  which needed to be addressed in a timely fashion
 and offered the best  prospects for privately-financed response.

-------
1

-------
                               -3-


     Finally, multiple negotiations concerning each phase of site
response inefficiently used limited Agency and Department of
Justice resources and personnel.

     In response to these concerns, the Agency established a
policy that precluded potentially responsible parties from conducting
the RI/FS, unless they were also willing to commit to conducting
the remedial action.

     The Agency has also identified drawbacks to this approach.
Some potentially responsible parties have wanted an opportunity
to prepare an RI/FS or participate in its development.  They have
been reluctant to accept the conclusions in the RI/FS and to -
assume responsibility for conducting cleanup, because their views
were not reflected in the Agency-financed RI/FS.  This policy
also increased demands on the Fund, and ran contrary to the
Agency's preference for timely and effective private-party response.

     In light of these drawbacks, the Agency has established a
new policy concerning the conduct of RI/FS by PRPs.  The Agency
will give potentially responsible parties an opportunity to
conduct the RI/FS, consistent with Agency priorities and with
new Agency procedures and guidance.  The new approach will better
enable the Agency to target its enforcement priorities, reduce
the possibility of unsuccessful or- protracted negotiations with
PRPs, and enhance the quality of private-party RI/FS.

III. Situations where private parties.may conduct RI/FS

     The Agency will identify sites targeted for RI/FS development,
and give potentially responsible parties an opportunity to conduct
the RI/FS.  The Remedial Accomplishments Plan (RAP) developed by
the Agency identifies candidate sites for enforcement or Fund-financed
response, and allocates the resources necessary to undertake
these activities.  The Remedial Accomplishments Plan lists all
sites for which RI/FS will be developed.

     Approximately 95 sites from the National Priorities List
have been identified as targets for development of RI/FS in FY
1984, and about 115 will be identified for FY 1985.  The Agency
has allocated CERCLA funds for RI/FS for each of these sites,
EPA will make available a list of the sites on the Remedial
Accomplishments Plan, and the scheduled dates for obligation of
funds for RI/FS development by the Agency at these sites.
Potentially responsible parties will have an opportunity to
conduct the RI/FS for these sites, provided that they respond
before the scheduled date for obligation of funds.

     The Agency will not engage in lengthy negotiations with PRPs
over whether PRPs will conduct the RI/FS.  In setting a reasonable
negotiating period, the Agency will consider factors specific to
the site, such as technical complexity and the number of parties
involved.  Once funds for an Agency-financed RI/FS have been
obligated, PRPs will not be allowed to take over development of
the RI/FS.

-------

-------
     If potentially responsible parties are willing to perform the
RI/FS, the Agency will identify the conditions under which they
may do so.  To assure that privately-funded RI/FS are done quickly
and in a manner that meets the applicable requirements of this
policy, potentially responsible parties will be expected to meet
the following conditions:

       1. Where several parties are involved at a site, they
          must be able to quickly organize themselves into a
          representative body to deal with the Agency as a single
          entity.  To facilitate this process, the Agency will
          make the names of potentially responsible parties
          available on request.  {See guidance from Gene A. Lucero
          and Kirk Sniff on Release of Names of Potentially
          Responsible Parties in Response toFOIA Requests published
          January 26, 1984).  A single PRP, or an organized group
          of PRPs, may assume responsibility for actual development
          of the RI/FS.

       2. PRPs must agree to follow the scope of work for the
          RI/FS developed by the Agency.  The Agency will not
          engage in lengthy negotiations over this issue.

       3. PRPs must demonstrate to the Agency that they are able
          to follow the technical procedures described in Remedial
          Investigat i on and Feasibility Study guidance manuals
          currently u-nder development. ^   •              . .
                         *

     If these .onditions are met, the Agency will devote the
resources necessary to assure the satisfactory development of
the RI/FS by private parties.  The conditions governing private-
party conduct of the RI/FS should be formalized as Administrative
Orders (either unilateral or on consent) or Consent Decrees
wherever possible.3  The Agency is developing a model "generic"
consent order ior privately-conducted RI/FS so that consistent
and complete agreements can be expeditiously negotiated.
2. The Feasibility Study guidance and the Remedial Investigation
   guidance are scheduled for completion in the summer of 1984.
   EPA may issue.orders under section 106 when it determines that
   there may be an imminent and substantial endangerment to public
   health or welfare or the environment.  The Regions should
   review and if necessary update the information gathered to
   justify the listing of a site on the National priorities List.
   This information will be valuable in developing the endangerment
   assessment needed to justify issuance of the order.

-------
 rT~
t

-------
     If", in the Agency's judgment, the potentially responsible
parties do not meet these criteria, (that is, they are not able
to properly conduct the RI/PS), the Agency will not commit resources
to review the private-party RI/FS.  Instead, the Agency will
perform the work itself and seek to recover the costs of the
RI/FS.  PRPs will be given the opportunity to discuss implementation
of the selected remedy at a later date.

     The Agency normally allocates the equivalent of about 1.1
work-years for start-up, management, "and selection of remedy for
each Fund-financed RI/FS developed by a government contractor.
These resources will be redirected to oversee and review the -
privately-conducted RI/FS.  It is the Agency's view that
responsible parties are liable for costs of oversight of RI/FS
development.  A commitment to reimburse the Agency for oversight
costs should be negotiated in advance.

     The Agency will review the completed work product, assess
the various alternatives under consideration, and choose the
remedial alternative that best meets all applicable requirements
of CERCLA.  Development of private-party RI/FS will be subject
to EPA community relations requirements. 4

     The Agency believes that this approach will enhance the
prospects for private-party implementation of the remedy and
also provide a mechanism to.clean up additional sites in the
future.   As potentially responsible parties become more familiar
with conducting RI/FS under the Remedial Investigation and
Feasibility Study guidances,  and Agency personnel develop more
experience in overseeing and evaluating them, we anticipate that
it will  take less than a full Agency workyear to assure the
completion of a technically sound RI/FS.  As a result of this
experience, EPA will be able to oversee additional privately-financed
RI/FSs with a given level of resources and, consequently, initiate
the response process by private parties at more NPL sites.

IV. Applicability of Policy

     This policy is prospective.  PRPs will be allowed to conduct
RI/FS for targeted sites on the basis of these criteria when the
Remedial Investigation and Feasibility 'Study technical manuals
and any other necessary technical manuals are final.  We anticipate
that these documents will be completed in the summer of 1984.

     This policy will also be applicable to sites where States
have the lead in managing preparation of the RI/FS.  Where possible,
States should be involved in the determination of whether PRPs
can properly conduct the RI/FS, and in review of the workplan.
States may also assume some responsibility for oversight of PRP
conduct  of the RI/FS.

4. Requirements are set forth in Community Relations inSuperfundiP
   A Handbook (Interim Version,) September 1983.

-------

-------
     This policy is applicable to sites that the Agency has
identified as targets for RI/FS development in the Remedial
Accomplishments Plan.  The Agency will not provide resources to
oversee and evaluate RI/FS 'for sites that have not been so
designated.  While potentially responsible parties are free to
conduct their own RI/FS for other sites which have not been
listed as priorities, the Agency does not have sufficient resources
to provide assistance or review the RI/FS during their development.

     This exclusion is designed to allow the Agency to manage
its resources and assure that they are directed towards sites
that represent the Agency's priorities.  Thus, the Agency cannot
review private-party RI/FS for non-targeted sites to provide ~
assurances that the remedy selected by potentially responsible
parties will be adequate to meet the requirements of CERCLA.
V.  Interim Policy and other situations for private-party RI/FS

     Until the RI and FS guidance documents are made final,
potentially responsible parties may also develop RI/FS if they
commit to follow workplans for RI/FS that have been prepared by
the Agency contractors under the supervision of the Agency.  The
Agency will not negotiate the content of these workplans.

     Implementation of this interim policy is at the discretion of.
the Regions.  Regions may allow PRPs to conduct -RI/FS "under .
workplans developed by Agency contractors if the RI/PS can be
conducted without undue disruption to schedules for remedial response,
in light of existing commitments for activities to be undertaken
under the Fund.  Regions should complete any negotiations concerning
this interim policy before the last month of the fiscal year, to
assure that these negotiations will not interfere with use of
Fund resources.  Where £he State is managing the development of
the RI/FS, this interim policy may be applied at the discretion
of the State.

     The Agency will sanction private-party RI/FS for sites that
are not identified on the Remedial Accomplishments Plan in two
other situations.

     First, private parties may perform the RI/FS if they also
agree to design and implement the remedy selected by the Agency
for the site.  The Agency will allow private party development
of the RI/FS because the resources that would have been dedicated
to negotiations with potentially responsible parties for the
remedial design and construction can instead be used to oversee
and review the privately-conducted RI/FS. Thus, PRPs may conduct
the RI/FS for any NPL site (even if the site is not listed in
the Remedial Accomplishments Plan) if they commit to the complete
clean up as well.

-------

*

-------
                               -7-


     Second, the Agency will allow a private party RI/FS for
dioxin sites that are active facilities, where the scope of the
remedial investigation has been comprehensively defined by the
Federal government.  The explicit requirements developed by the
Federal government—coupled with the public interest to move
quickly on recently discovered dioxin sites—warrant this approach.

VI. Arrangements for Notice to PRPs

     PRPs will be notified of the opportunity to perform the
RI/FS in the following way:

     First, the list of sites targetted for RI/FS development
and a schedule for action at those sites will be made available.
It will be accompanied by a statement that the Agency plans to
conduct RI/FS for the sites.  Any potentially responsible party
that wants to undertake the RI/FS can voluntarily come forward
and contact the Agency, before the scheduled date to obligate
funds for RI/FS development.

     Second,  prior to the scheduled start of the RI/FS, the •
Agency, will send notice letters to PRPs for sites listed on the
Remedial Action Plan.  Notice letters should be issued as soon
as possible after the completion of the responsible party search.
The letters should normally be issued at least 60 days before
the scheduled date for obligation of Funds'Eor the RI/FS.,  PRPs
(if multiple  generators are involved) should therefore have'
sufficient time to organize themselves and initiate preliminary
contacts and  discussions with Agency personnel.  This will also
avoid delay in beginning a Fund-financed RI/FS should it become
necessary.

     The notice letters will inform the potentially responsible
parties that:

        1.  Fund-financed RI/FS actions are planned;

        2.  The results of the studies will be used to select
           a  remedy for the site;

        3.  PRPs can meet with Agency personnel to discuss their
           participation in the RI/FS;

        4.  PRPs may be liable for the costs of the RI/FS performed
           by the government;

        5.  PRPs will have an opportunity to meet with Agency
           personnel to discuss design and implementation of  the
           remedy after completion of the RI/FS.

        6.  PRPs may conduct RI/FS if they comply with the conditions
           outlined in section III of ,this policy.

-------

-------
f
                                        -8-
     The Agency will develop revised Notice Letter guidance in
the near-future that will provide additional detail on these
requirements.
  •

VII. Regional Role in RI/FS Development by PRPs

     Regional review of private-party RI/FS will be intensive
when this policy is first implemented;  Implementation will
require the ongoing involvement of the EPA project officer in
the private-party RI/FS development.  The'PRPs must develop a
detailed statement of work and work plans describing the activities
they will undertake at the site, based on the guidance and the
scope of work developed by the Agency.  The Regions must arrange
to periodically review the work plans and work performed as part
of the RI/FS.  The Regions must assure that PRPs follow proper
chain of custody procedures in testing and sampling, and that
PRPs keep adequate records to enable the government to use these
records as evidence in an enforcement case.  In addition, employees
of contractors or others who do the work must cooperate with and
be made available to the government in the preparation and trial
of any subsequent enforcement case.

     The Agency will review the completed work product and choose
a remedial alternative, that meets all applicable requirements of
CERCLA, and all implementing regulations,-policies and guidance.
In addi'tion, the Agency retains the right to reject PRP RI/FS
and sue PRPs for cost of developing its own Fund-financed RI/FS,
if the RI/FS is inadequate.  As noted earlier, the agreement to
conduct a private-party RI/FS should be incorporated into an
administrative order or consent decree.  Section 107 of CERCLA
authorizes the imposition of treble damages for failure to comply
with an administrative order.  The Agency will develop a model
order providing'additional detail regarding EPA involvement in
private party RI/FS development.


VIII.  Private-party Participation in Agency-Financed RI/FS

     Where potentially responsible parties do not actually develop
the RI/FS, the Agency will allow private-party involvement in
Fund-financed RI/FS, if such participation can occur without
undue delay, expense, or interference with' Agency RI/FS development,
Private parties may possess technical expertise or knowledge
about a site which would be useful in developing a sound RI/FS;
Involvement by PRPs in the development of a Fund-financed RI/FS
may also expedite site cleanup by identifying and satisfactorily
resolving differences between the Agency and private parties
that might otherwise be the subject of litigation.

-------

-------
! *
                                        -9-


               Potentially responsible .parties  may  be  allowed  to:

                3.  Review  the  contractor's  technical work  plan;

                2.  Have  access to  the site  (if  legally feasible)  to  observe
                   well  installation and the  collection of samples,  and' to
                   split samples where appropriate;

                3.  Have  access to  raw data  and  to draft reports;

                4.  Have  the option to comment on each  major phase  of the RI/FS
                   during  the  conduct of the  investigation.

               The-final decision  whether to  permit potentially  responsible
          parties'to  participate  in the  Fund-financed  RI/FS (as  well as
          the  scope of any participation) rests with the Regions.  This
          decision  should  be based on the ability of PRPs  to organize
          themselves  so  that they  can participate as a single  entity,
          and  the ability  of PRPs  to participate without undue interference
          with or delay  in completion of the  RI/FS, and other  factors
          that the  Regions determine are relevant.  The Region may terminate
          PRP  participation in RI/FS development if unnecessary  expenses
          or delays occur.

               Certain aspects of  this policy are not  applicable immediately,
          and  supplementary guidance will be  published. If you  have any
          questions or comments concerning  this policy, or problems  that
          need to be  addressed in  further guidance  to  implement  this policy,
          please contact Gene  A. Lucero  (382-4814), or John Cross  on his
          staff (FTS  382-4829).
          cc:
Regional Counsel
Regions I-X

Directors, Waste Management Division
Region I, V'     ,

Director, Office of Emergency and Remedial Response
Region II

Director, Hazardous Waste Management Division
Region III

Directors, Air and Waste Management Division
Regions IV, VI, VII, VIII, X

Director, Toxics and Waste Management Division
Region IX

-------
                                                                                   &
  „  ~rv,r0r,-,ent.al Protection
Library, Room 2404  PM-211-A
401 M Street, S.W.
Washington, DC   20460

-------