oEPA
United States
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9230.0-03a
TITLE: Comtunity Relations Activities At Superfund
Enforcement Sites: Interim Guidance
APPROVAL DATE: March 22, 1985
EFFECTIVE DATE: March 22, 1985
ORIGINATING OFFICE: OERR/HRSD
m FINAL
D DRAFT
STATUS.
REFERENCE (other documents):
Supplements 9230.03: Community Relations in Superfund:
A Handbook, Interim Version
OS WER OS WER OS WER
/£ DIRECTIVE DIRECTIVE Di
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03/19/87 United States Environmental Protection Agency
Washington, D.C. 20460
EPA OSWER Directive Initiation Request
1. Directive Number
9230.0-03a
2. Originator Information
Name of Contact Person
GEMMILL
Mai Code
Office
OERR/HRSD
Telephone Number
382-2460
3. Title
COMMUNITY RELATIONS ACTIVITIES AT SUPERFUND ENFORCEMENT
SITES: INTERIM GUIDANCE
4. Summary of Directive (Include brief statement of purpose)
How to enable an extensive community relations
program in the course of enforcement actions while
preserving the integrity of the enforcement
process. Will become Chapter VI of "Community
Relations in Superfund: A Handbook" to be issued
as final guidance in 1986. (3/22/85, 15 pp)
U.S. EPA Region III
Regional Center for Environmental
Information
1650 Arch Street (3PM52)
PA 19103
5. Keywords
SUPERFUND, CERCLA, COMMUNITY RELATIONS
6a. Does this Directive Supercede Previous Dlrectlve(8)?| | yes | X| No What directive (number, title)
b. Does It Supplement Previous Directives^)?
XI yes | I No What directive (number, title)
9230.0-03
7. Draft Level
A-SlgnedbyAA/DAA I I B - Signed by Office Director
C • For Review & Comment
In Development
This Request Meets OSWER Directives System Format
8. Signature of Lead Office Directives Coordinator
Date
9. Name and Title of Approving Official
MCGRAW
Date
03/22/85
OSWER OSWER OSWER
DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONM£NTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR. 22 1985
OFFICE OF .
SOLID WASTE,I.ND EMERGENCY RESPONSE
OSWER Directive 92~0. 0-3a I
MEMORANDUM
FROM:
Community Relations Activities at Superfund
~~fo~'-m,~ Sites -- Interim Guidance
ck '~~w
cting Assistant Administrator
Regional Administrators
SUBJECT:
TO:
Attached is the' interim guidance for conducting communi ty
relations activities at Superfund enforcement sites. The'
guidance is in the form of Chapter VI that will be added to the
September 1983 document entitled .Community Relations in Super-
fund: A Handbook," which contains Chapters I through V. The,
Handbook is being revised to reflect experience with the
commun i ty' r.ela tions program to date. Based on experience to be
gained over the next several months, the enforcement chapter
will be revised as necessary and issued as final guidance early
in 1986 as'part of the overall Handbook revisions.
. The chapter has been developed in coordination with inter-
ested Offices within EPA and with the Department of Ju~tice.' It
represents a carefully constructed consensus as to how to enable
an extensive community relations program in the course of enforce-
ment actions while at the same time preserving the integri'ty of '
the enforcement process. Because of the complexity and differing
circumstances involved in enforcement actions, the chapter cannot
address every situation that will arise: it does, however, provide
a sound strupture for determining the nature and scope of site-
specific community relations activities. A particularly important
emphasis is placed on consultation among Regional community rela-
tions, technical enforcement, and Regional Counsel staff, and
between these staff and Department of Justice personnel once a
case has been referred, or is likely to be referred, for litiga-
tion. This consultation is key to successful implementation of
the chapter.
,.,
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OSWER Directive 9230.0-3a
CHAPTER 6
COMMUNITY RELATIONS DURING ENFORCEMENT ACTIONS
An effective- community relations program ,is'an essential part of every
. Superfund enforcement action. This chapter provides guidelines for developing
and administering community relations programs during enforcement proceedings
brought under the authorities of CERCLA.* '
The purposes of community relations activities related to Superfund
actions, described in the preceding chapters, essentially are to ensure that:
(1) community concerns are considered to the greatest extent
practicable in determining site remedies;
(2) affected citizens have an opportunity to participate in
the remedy-selection process, principally through review
and comment; and'
(3) communities are kept informed during Agency actions.
It must be recognized, however, that the enforcement process is by its
nature adversarial, even where there is an apparent interest on the part,of
potentially responsible parties to work willingly with the Agency to arrive at
appropriate site cleanup. In order for the gov.rnment to protect its
enforcement position, both in court and during negotiations, .ther. ar.
necessary limitations on the r.lease or' discussion of certai,n information.
For example, there can be no discussion of enforcement strategy.and timing,
nor can there be release of information that might disclose the strengths and
weaknesses of a case or that is otherwise privileged and protected under the
law. In addition, depending upon specific circumstances, there may be other
. limitations on the scope of community relations activities, particularly where
a case has been referred to the Department of Justice for, litigation.
*CERCLA and the National Contingency Plan, including requirements'
regarding community relations, apply to actions carried out bya State where
CERCLA funds are used to support the State activity. As of the date of
issuance of this chapter, no CERCLA funds have been used to underwrite State
costs where the State has assumed lead enforcement responsibility for a site.
Consequently, there has bee~ no basis in the past for requiring States to
conduct community relations activity at State enforcement-lead sites.
However, OSWER is planning to begin funding remedial investigations and
feasibility studies (RI/FS)at selected State-lead enforcement sites, and may
in the future be able to provide a broader range of assistance. Accordingly,
the appropriate provisions of this chapter will apply to that aspect of State
activity at a State-lead ~nforcement site that is funded in whole or in part
by CERCLA monies. '
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OSWER Directive 9230.0-3a
-3-
.
. Community relations during responsible party cleanup
(Section,H)j and
.
Community relations during removal actions (Section I).
A.
THE ENFORCEMENT PROCESS.
The enforcement process under CERCLA will vary with the circumstances of
each site. However, a description of the basic approach is set forth here to
help the reader follow the later discussions in this chapter.
CERCLA section 104 authorizes the government to respond to releases or
threatened releases of hazardous substances, pollutants, and contaminants,
unless the government determines that the responsible parties will respond in
a timely and proper manJ).er. EPA may seek to compel potentially responsible
parties through litigation or administrative order to clean up hazardous
substances or to pay the costs of government response, or EPA may negoti~te
and settle with potentially responsible parties regarding cleanup and cleanup
costs.
The enforcement process begins with a search for potentially responsible
pariies associated with each site, including generators, transporters, and
facility owners and operators. When potentially responsible parties (PRPs)
are identified, EPA evaluates their ability to undertake cleanup actions
properly. Usually, before the Agency.b~gins itsown.response activ.ities, EPA
attempts to send notice letters to the potentially responsible parties,
informing them of their potential liabilities, requesting information under
section 104(e) of CERCLA and section 3007 of the Resource Conservation and
Recovery Act (RCRA) , and providing an opportunity to meet with the Agency to
discuss possible cleanup activities that the PRPs might undertake. For'
example, PRPs may perform the RIfFS if they agree to follow the work plan for
the RIfFS developed by EPA. (See the memorandum entitled "Participation of
Potentially Responsible Parties in Development of Remedial Investigations and
Feasibility Studies UnderCERCLA, signed March 20, 1984, by Lee M. Thomas,
Assistant Administrator for Solid Waste and Emergency Response, and Courtney
M. Price, Assistant Administrator for Enforcement and Compliance Monitoring.)
Or, EPA may conduct the RIfFS, then seek to compel or negotiate with
pOtentially responsible parties to design and construct the remedy.
At many sites, however, a Fund-financed removal action or RIfFS will be
, conducted before the final decision is made whether or not to pursue
enforcement actions. When the removal action or RIfFS is completed, EPA may
seek to secure responsible party funding and management of any later stages of
the response through issuance of an administrative order or filing of a
lawsuit, both of which may involve negotiations, or some combination of these
actions. .
Where there are. to be negotiations, a government negotiating team is
formed. The leader qf the negotiating team (or the team's designee) serves as
a liaison between the negotiating team and the Regional Superfund Community
Relations Coordinator: The negotiating team leader is responsible for keeping
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OSWER Di~ective 9230.0~3a
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Community relations staff must consult with enforcement staff prior
conducting the community discussions to ,determine what is already known
the site, any special cautions that should be observed in the course of
discussions, and whether site circumstances make it appropriate for
enforcement staff ~o participate. Further, where discussions with the
affected community provide the Agency with information concerning site
conditions orpQtentially 'responsible parties,or other relevant enforcement
information, community relations staff must ensure that this information is
provided as soon as possible to enforcement staff. '
to
about
the
It also should be noted that circumstances at sites are constantly
changing, and the need for enforcement action may arise suddenly in connection
with a site where no enforcement action had been foreseen. The enforcement
staff should keep the community relations staff advised of these changes.
Community relations plans for enforcement-dead remedial action sites
should be prepared as soon as possible following the discussions with the
affeCted community. The plan must make provision for the following major
activities, recognizing that referral of the case to the Department of Justice
for litigation may occur at any point in the enforcement process 'and may
require the plan to be revised:
(1) public meetings and information dissemination prior to
and during the remedial investigation/feasibility study
stage (see Sections C and D); . .
(2) public comment on the RIfFS (see Section D);
(3) preparation of a summary of public comments on the RIfFS
to accompany the draft negotiations decision document
(see Section D);
(4) potential public participation in technical discussions
with potentially responsible parties and,government
representatives to discuss aspects of site remedy (see
Section E); .
(5) dissemination of information during negotiations (see
Section F);
i
(6) preparation of a responsiveness summary of public
comments on the RIfFS to accompany the Enforcement
,Decision Document and the proposed administrative order
on consent or ~roposed consent decree (see Sections F
and G); and
(7) preparation of a summary of public comments on the
Enforcement Decision Document and the administrative
order on consent or consent decree (see Sections F and
G). '
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OSWER ~irective 9230.0~3a
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"
conducts the RIfFS, or has reached agreement with the Agency for site cleanup,
or both, the responsible party may wish to participate in public meetings or
in the preparation of fact sheets. It may also be appropriate, at the sole
discretion of the Agency, for the responsible party to participate in
implementing the plan during negotiations where the responsible party is
willingly working with the Agency to come to agreement on site cleanup,
although these occasions may be few. However, the responsibility for
development and implementation of the, plan must remain with EPA.
In most instances, the decision regarding responsible party participation
in the community relations plan will be made after the plan has been'
developed. As a result, the plan will need to be modified to reflect the EPA
and responsible party roles and responsibilities. Any modifications must be
approved by the te~hnical enforcement and Regional Counsel offices and, once a
case has been referred, by the Department of Justice.
. .
C.
COMMUNITY RELATIONS PRIOR TO THE RifFS
At the time notice letters are sent, EPA Regional community relations
staff should contact local officials and citizens who have expressed concern
about site issues to inform them that enforcement efforts have begun. Staff
also should announce the community relations activities planned to take place
with regard to the site. These actions should serve primarily to provide'
information on EPA's understanding of the nature of problems at the site and
on EPA's general enforcement process. In discussing the community relations
activities planned for the site, community relations staff should point out
that some modification in planned activities likely will be necessary if the
site is referred for litigation. The reasons should be explained to ensure
public understanding of the legitimate constraints that apply in such
circumstancas.
I '
I n all cases, community relations staff must coordinate their activities
with technical enforcement and legal staff and the site project manager co
ensure that any releases of information are reviewed and approved in advance.
D.
COMMUNITY RELATIONS DURING AND UPON COMPLETION OF THE RifFS
, In general, if the case has not been referred to the Department of Justice
for litigation, community relations activities during the remedial
investigation and the development of the feasibility study for enforcement
sites should be basically the same as for Fund-lead sites. Activities for
most sites should include one or more public meetings and additional informal
meetings with interested citizens to 'discuss site conditions and alternative
remedial a~tions understudy, and to respond to questions on these issues.
Tr.ese and other standard activities conducted in connection with Fund-lead
.~fFSs are appropriate for most enforcement remedial action sites because
responsible party participation in the RIfFS, and in some instances actual
conduct of t~e RIfFS, are being encouraged as a matter of Agency policy. In
other ~ords, since the RIfFS process will not gen~rally be closed to
potentially responsible parties, .there generally should be no bar to full
?utlic disclosure and participation. However, consistent with ths
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OSWER Directive 9230.0-3a
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proposed remedy (see Sections F and G and the above-cited policy memorandum).
Community relations staff also should advise the community of the next
anticipated, steps in the enforcement process and explain negotiation or
litigation procedures (as appropriate to the site) through small group
briefings, fact sheets, or brief informational materials deposited in a local
information repository. As with other activities, community relations staff
should consult with and obtain the approval of appropriate- technical
enforcement and Regional Counsel personnel to ensure that enforcement or
negotiation positions are not jeopardized. Where the case has been referred
for litigation, approval from the Department of Justice also is necessary.
E. PUBLIC PARTICIPATION IN TECHNICAL DISCUSSIONS WITH POTENTIALLY
RESPONSIBLE PARTIES AND GOVERNMENT REPRESENTATIVES REGARDING
ASPECTS OF SITE REMEDY
There may be occasions where affected citizens may make valuable
contributions to appropriate site remedy through participation in technical
discussions with potentially responsible parties and government representa-
tives. These discussions, which would deal with technical issues, and not
questions of liability or other issues not relating to remedy, would be
conducted separately from, but contemporaneously with, government/responsible
party remedy negotiations. The purpose would be not only to facilitate public
understanding of the technical issues, but also to better enable the
government and responsible parties to arrive at a remedy that accommodates
public concerns.
In developing the community relations plan for an enforcement site,
consideration should be given to whether such discussions will be
appropriate. In most instances, however, the final decision cannot be made at
this point because circumstances that would make such discussions appropriate
or inappropriate will not be known. Therefore, the community relations plan
should address only the potential for such discussions, the conditions under
which they might take place, and the criteria for public participation.
The decision on public participation will be made by the Regional
Administrator upon the advice of the Regional Superfund Community Relations
Coordinator, the chief Regional Office official responsible'for technical
enforcement, and the Regional Counsel. Where the case has been referred for
litigation or there is a likelihood of litigation, the concurrence of the
Department of Justice also must be obtained. (With regard to public
participation in technical discussions for sites that are already in
litigation, see Section G.) The following criteria should be considered in
making the decision:
(1) Has the interested public, including local government
bodies, been able to agree on its representatives
(generally no more than three or four);
(2) Does the interested public have technical representation
where the complexity of site issues requires such
representation;
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OSWER Directive 9230.0-3a
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for public comment, and the availability of the consent order and the
Enforcement Decision Document that will have been prepared by the Region and
that is the mechanism for Agency approval of the cleanup. [NOTE: In
accordance with the policy memorandum of February 27, 1985, referenced
earlier, a responsiveness summary of public comments on the RI/FS is to be
prepared to accompany the Enforcement Decision Document and will be made
available for public review as part of the EDO.) The announcement should
consist of at least a public notice, a news release to local media, and a
notice in the local repository. The announcement also should explain where
copies of the settlement documents, order, EDD, and responsiveness summary may
be found (e.g., in the local repository), and where comments should be sent.
In some cases, community relations staff may want to provide personal
notification to concerned and directly affected citizens. Any meetings or
briefings planned regarding the order also should be announced.
Communications to the public should focus on the technical provisions of the
settlement agreement; details of the negotiations, such as the behavior,
attitudes, or legal positions of responsible parties, any compromises
incorporated in the settlement agreement, and evidence or attorney work
product material developed during negotiations, must remain confidential.
After the close of the comment period, a summary of comments must be
prepared and sent to the appropriate Regional official, who will recommend to
the signing official either that the order go into effect unchanged or that
negotiations be reopened to consider issues raised by the comments
received. If agency negotiators and responsible parties agree to make
changes in the order, the order may be modified. The order goes into effect
once it is accepted unchanged or modified and subsequently approved, except
that aspects of an order not affected by potential modifications may be
implemented without delay.
G. COMMUNITY RELATIONS DURING AND UPON COMPLETION OF LITIGATION
A case may be referred to the Department of Justice to initiate litigation
at any point in the enforcement process. When a case is referred, the needs
for confidentiality and constraints on the scope and nature of community
relations activities become greater. If litigation is initiated early in the
enforcement process, the community relations plan for the site may need to be
modified substantially. If it is initiated late in the process, at the
conclusion of unsuccessful negotiations for example, the plan will require
.only an addition to accommodate the litigative process.
Where a case has been referred to the Department of Justice, community
relations staff and Agency enforcement and legal personnel must consult with
the lead Department of Justice attorney to determine the scope of community
relations activities to be carried out. While strong consideration should
be given to implementing the plan as developed and previously approved, the
federal litigation process may require changes in the degree of public
disclosure. For example, the court of jurisdiction may have rules regarding
public disclosure. The court may or may not allow public meetings in the
course of developing an RI/FS for a site in litigation, and similarly may
limit public comment on the completed feasibility study. A court also mav
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OSWER Directive 9230.0-3a
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the Agency may arrive at an agreement with the PRPs to do the work, which
would be embodied in an administrative order on consent. In addition, under
certain circumstances, the Agency may refer the action to the Department of
Justice to seek a court order to secure the removal. By their nature, the
situations giving rise to an immediate removal or other urgent action do not
allow for the same level of public comment. Adjustments to the community
relations process must "be made to fit the time constraints. However, once
issued, a unilateral administrative order or administrative order on consent
becomes a public document which should be made available to the affected
community. In addition, community relations staff should discuss the terms of
the order with citizens, local officials, and the media and describe the
removal action. If, however, the responsible party fails to respond to the
order, any statements or information releases regarding the status of actions
at the site or prospective EPA actions must first be cleared with appropriate
Regional technical and legal enforcement personnel.
t
Consent orders for removals normally should be subject to public review
before becoming effective. However, if holding a comment period for an
immediate removal might delay implementation of the order and endanger public
health or the environment, this procedure may be modified. In such instances,
community relations staff should discuss the order with citizens, local
officials, and the media and explain why the need for immediate measures
precludes establishing a formal comment period.
Community relations activities during removals carried out by responsible
parties should be the same as for Fund-financed removals. Responsible parties
may participate, subject to the same considerations described above in Section
H.
CPO 814-058
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