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&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)
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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.
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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).
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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.
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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.
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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. ^ • . .
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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.
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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.
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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.
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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.
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The Agency will develop revised Notice Letter guidance in
the near-future that will provide additional detail on these
requirements.
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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.
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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
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„ ~rv,r0r,-,ent.al Protection
Library, Room 2404 PM-211-A
401 M Street, S.W.
Washington, DC 20460
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