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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV
OFFICE Of
SOLID WASTE AND EMERGENCY RESPONSE
MEMDRANDOM
SUBJECT: Superfund Enforcement Strategy and Implementation Plan
FROM: Bruce M. Diamond, Director
Office of Waste Programs Enforcement
As an interested observer of the progress of the Superfund program, I
thought you might be interested in the attached report prepared by this office
pursuant to requests by the House and Senate Appropriations Committees. They
directed the Agency to conduct an evaluation of the Superfund enforcement
program. EPA responded with two reports. First is a report titled "Toward a
More Effective Superfund Enforcement Program" prepared by the Environmental Law
Institute (ELI) under a grant from EPA. The ELI study is an independent
evaluation of the Superfund enforcement program. Second is an EPA report titled
"Superfund Enforcement Strategy and Implementation Plan" (the Plan). The Plan
describes the Agency's Superfund enforcement strategy and the steps necessary
to implement improvements in the enforcement program. I am sending the Plan to
you for your information and am willing to make the ELI report available to you
should you wish.
It is important to distinguish the Plan from the Agency's recently released
"Management Review of the Superfund Program" (and its Implementation Plan). The
Plan was developed in response to the requests from the Appropriations
Committees. The Review was developed in response to a commitment that EPA
Administrator Reilly made to Congress during his confirmation hearings. The Plan
focusses entirely on the Superfund enforcement process while the Review addresses
all aspects of the Superfund Program. The Plan contains many of the key
enforcement recocnnendations presented in the Review but addresses additional
enforcement issues and implementation steps as well. The Plan has been well
coordinated with the overall effort to implement the Review.
If you have any questions or wish a copy of the ELI report, please feel
free to contact me at 382-4814. I look forward to further discussions on the
progress of the Superfund enforcement program.
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SUPERFUND ENFORCEMENT
STRATEGY AND
IMPLEMENTATION PLAN
U.S. Environmental Protection Agency
Office of Waste Programs Enforcement
September 26, 1989
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Introduction
In passing the FY89 appropriation, the House and Senate
Appropriations Committees requested that the Environmental
Protection Agency (EPA) conduct an evaluation of the Superfund
enforcement program. The specific language of the Appropriations
Committees' requests are included as Appendix A of this report. EPA
has responded to these requests with two reports. First, EPA
contracted with the Environmental Law Institute to conduct an
independent evaluation of the Superfund enforcement program. This
evaluation was completed in the spring of 1989. Second, EPA has
developed this report titled "Superfund Enforcement Strategy and
Implementation Plan" (referred to here as the Plan) which describes
the Agency's Superfund enforcement strategy and the steps necessary
to implement it.
The Superfund Enforcement Strategy and Implementation Plan has
been developed and should be read in close conjunction with the
Agency's Management Review of the Superfund Program released in
June 1989 (referred to here as the Superfund Management Review)..
Strengthening Enforcement and Maximizing Private Party Work at v
Superfund Sites was one of five topics examined in the Superfund
Management Review. A comprehensive plan to implement the Management
Review was released in September 1989; this report supplements butfl
does not repeat the recommendations in the review. The
implementation plans and recommendations in these reports are fully
consistent. The Superfund Management Review consists of analyses
and recommendations in key areas of the enforcement program, while
this Plan addresses the enforcement program in more detail. Neither
report addresses enforcement for Federal facilities or enforcement
of the notification requirements of section 103 of CERCLA and Title
III of the Superfund Amendments and Reauthorization Act of 1986
(SARA). These programs are sufficiently complex in their own right
that they could not be addressed in this Plan if it was to be kept
to a manageable length.
T* This Superfund Enforcement Strategy and Implementation Plan
reflects a review of recent studies of the Superfund program, as
well as ongoing management initiatives involving EPA and the
Department of Justice, including the Superfund Settlement Incentives
and Disincentives Workgroup and the Superfund Enforcement Management
Issues Workgroup. A list of issues raised in various studies and
reports is included as Appendix B.
The Plan also reflects the Agency's eight years of experience in
implementing the requirements of CERCLA. This Plan does not
represent the final work in implementation of an enhanced Superfund
enforcement program, but will hopefully represent a major step
toward realization of that goal.
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This Plan was developed with the participation of the major
organizations involved in the Superfund enforcement program,
including the Office of Waste Programs Enforcement (OWPE), the
Office of Enforcement and Compliance Monitoring (OECM), the Office
of Emergency and Remedial Response (OERR), the Office of the
Comptroller (OC), the Office of General Counsel (OGC), the
Environmental Enforcement Section of the Department of Justice
(DOJ), and representatives of EPA's Regional enforcement programs
and Regional counsel offices. This Plan was prepared by the Office
of Waste Programs Enforcement.
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TABLE OF CONTENTS
I. Enforcement Strategy: General
Enforcement and Settlement Principles 7
A. General Principles 7
B. Judicial Principles 8
C. Settlement Principles 9
II. Implementation Plan for Enforcement 10
A. Identification of Potentially Responsible
Parties 11
•1. PRP Search Process
B. Information Exchange with Potentially
Responsible Parties 12
1. Enforcement of Information Requests
2. Information Release
C. Removal Enforcement 15
1. Resources
2. Regional Management Approach
D. Private Party Remedial Investigations and
Feasibility Studies (RI/FSs) 17
1. Record of PRP RI/FS Settlements
2. Quality of PRP-lead RI/FSs
E. Negotiations for Remedial Design and Remedial
Action (RD/RA) 18
1. Achieving RO/RA Settlements
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F. Settlement Authorities 20
1. Mixed Funding and De Minimis Settlements
2. Non-binding Allocations of Responsibility
G. Unilateral Section 106 Authorities 24
1. Unilateral Section 106 Orders
2. Section 106 Judicial Referrals
H. Administrative Records 27
1. Record Compilation
I. Compliance with Consent Orders and Decrees 28
1. Tracking Systems
2. Penalties for Non-Compliance
J. Cost Recovery 30
1. Recovery of All Costs
"2. Documentation of All Costs
3. Removal Cost Recovery
III. Program Relationships 33
A. Fund-Enforcement Integration 33
1. Site Classification System
2. Intergrated Priorities
3. Flexible Funding
4. Headquarters/Regional Organization Review
B. Headquarters/Regional/DOJ Relationships 35
1. Consistent Goals
2. lAG/Accountability/Resources
3. Delegations/Management
4. Communications
C. State/Federal Relationship 38
D. Community Involvement and Public Outreach 39
IV. Resource Implications 41
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Appendices
Appendix A House and Senate Appropriations
Committees Language A-l
Appendix B List of Enforcement Issues Raised by Reports
on Superfund B-l
Appendix C Acronyms c-i
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I. ENFORCEMENT STRATEGY; GENERAL ENFORCEMENT AND
SETTLEMENT PRINCIPLES
This section presents the general enforcement and settlement
principles that guide the Superfund enforcement program and set the
stage for the enforcement implementation plan contained in the
remaining sections of this report. The Superfund Management
Review's strategy for Superfund sets the framework for the
implementation of the entire Superfund program. Two features of the
strategy are particularly important to the enforcement program
because they state the Agency's commitment to increasing enforcement
actions to induce private party cleanup and to integrating the Fund
and enforcement aspects of the program to improve efficiency of
program operations.
A. GENERAL PRINCIPLES
An effective Superfund program depends on a balanced approach
consisting of settlements, administrative orders and litigation, and
Fund-financed response. EPA will consider private party responses
as the preferred approach for the majority of Superfund sites. At
the same time, EPA will retain the maximum amount of leverage to use
the Fund at specific sites where negotiations are unsuccessful. v
The goal of the government is to negotiate an agreement for 100%
of response costs. However, settling for less than 100% can be
appropriate if the settlement meets the Agency's ten point
settlement criteria which assure that the settlement is in the best
interests of the public. Judicial enforcement actions to compel
private party response may not always be the quickest way of
assuring cleanup for any given site. Furthermore, such actions are
not without risk of adverse litigative outcomes. Nevertheless, a
certain minimum number of such enforcement actions will establish a
credible threat against PRPs who fail to participate in the
settlement process. Where negotiations are at an impasse at the end
of the special notice negotiation period, Regions should routinely
issue a unilateral administrative order (UAO). Likewise, if PRPs
fail to comply with a UAO, the Agency expects that serious
consideration be given to bringing a section 106 judicial action or
other action to enforce it. If a Fund-financed response is
undertaken, all steps should be taken to seek treble damages during
cost recovery. The Regions should have flexibility to select the
most effective approach for a particular site. They should be able
to shift funds among sites within the Region to achieve maximum
leverage.
'"Interim CERCLA Settlement Policy," February 5, 1985, OSWER
Directive number 9835.0.
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B. JUDICIAL PRINCIPLES
The liability of PRPs under CERCLA continues to be strict, and
joint and several2, except where PRPs can demonstrate that harm at
the site is divisible. The potential for joint and several
liability is a valuable impetus for PRPs to reach agreement among
themselves and with the government.
Citizens sometimes want PRPs to be punished for the Superfund
sites they have created. However, parties may be liable under
CERCLA without having violated any regulatory statutes. Thus, the
primary purpose of the liability scheme is to compel cleanup.
Vigorous enforcement actions should be brought against jparties who
fail without sufficient justification to participate in the
settlement process and punitive measures should be brought against
those who violate orders or decrees. The government should
specifically enforce against failure to comply with information
requests and use its administrative subpoena authority to facilitate
the settlement process by improving information available on PRPs.
As authorized under sections 106 and 107, the government will
pursue cases involving treble damages and penalties for violations
of unilateral and consent orders. Taking such actions is important
for establishing a credible deterrent. These actions are available
against persons who fail without sufficient cause to comply with
orders.
In appropriate circumstances, where a settlement for less than
100% has been reached, the government should pursue prompt and
vigorous enforcement against viable recalcitrants where we have
sufficient evidence linking such parties to the site. Such action
should almost always be commenced within 90 days of entry of the
consent decree.
The government should enhance efforts to publicize enforcement
actions, particularly in suing recalcitrants, because public
perception of an effective enforcement program is essential for
assuring voluntary PRP participation in the settlement process. The
publicity should involve the local and national media and be
explicitly targeted to potentially affected recalcitrants 'and
communities.
2Strict liability is liability without regard to fault; it
holds a responsible party liable for any harm caused, without regard
to whether the party exercised due care or acted with negligence.
Joint and several liability arises where two or more parties cause a
single and indivisible harm. Each party is liable for the entire
harm.
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C. SETTLEMENT PRINCIPLES
EPA should encourage early PRP participation in the settlement
process. EPA should strengthen its emphasis on early and thorough
PRP searches under the direction of experienced civil investigators
and provide training and resources to support these activities. EPA
should conduct a preliminary search to identify obvious PRPs upon
site discovery and should undertake more intensive searches as soon
as proposed listing on the NPL appears likely. EPA should issue
general notices at all sites where PRPs have been identified.
Absent extraordinary circumstances, special notice should be issued
at all sites with viable PRPs no later than issuance of the record
of decision (ROD).
EPA should continue to provide capable PRPs with an opportunity
to participate in the remedial investigation and feasibility study
(RI/FS) with appropriate oversight. Comprehensive settlements for
all response work and costs are preferred. Mixed funding, de
minimis settlements, and non-binding allocations of responsibility
(NBARs) are Congressionally-sanctioned settlement tools. EPA
believes these tools should be more fully utilized where their use
will facilitate settlements and where they are used pursuant to
existing Agency guidance. This does not mean, for example, that the
Agency is establishing a preference for the use of a mixed funding
settlement over a more comprehensive settlement. Rather, this means
that EPA should increase its efforts to remove obstacles to the use
of these settlement tools and should provide additional resources
for their use, where appropriate.
EPA's policy is that allocations should generally be worked out
among the PRPs. However, under appropriate circumstances, the
government should attempt to allocate costs among settling and non-
settling parties in a way that maximizes its ability to pursue non-
settlors and avoids creating incentives for PRPs not to participate
in the settlement process. EPA should actively facilitate
allocation among PRPs on a more frequent basis. EPA should also
consider funding neutral third parties to perform allocations for
PRPs, and consider more aggressive use of administrative subpoenas
to collect information related to allocations.
EPA should provide explicit opportunities for using non-binding
alternative dispute resolution (ADR) where it would expedite
settlement. EPA will consider innovative Use of ADR as well as
traditional fora* of ADR such as non-binding arbitration and
mediation.
All enforcement agreements should contain a commitment by the
PRPs to adequately fund EPA oversight. Furthermore, levels of
oversight should be correlated to the demonstrated ability of the
PRPs to perform the RI/FS or response action. EPA will routinely
issue special notice in remedial cases and will adhere to strict
deadlines for completing negotiations.
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This section consists of specific recommendations for
improvement concerning management, planning, policy and resources.
It assumes a basic knowledge of the elements of the Superfund
enforcement process. The recommendations listed under these steps
are primarily top priority activities. They include many
recommendations from the Superfund Management Review.
Implementation of these recommendations requires commitment and
assistance both within EPA and from Congress, as well as from public
and private interest groups and States. The ability of EPA to
implement these recommendations depends upon resource levels.
Resources are discussed in Part IV of this Plan.
Enforcement activity at a Superfund site involves a series of
steps. Many of them build upon one another. When one of the steps
is performed inadequately, EPA may be unable to reach the ultimate
goal — private party response. The following section discusses ten
key enforcement steps.
o Identification of Potentially Responsible Parties,
o Information Exchange and Notification
o Removal Enforcement,
o Private Party Remedial Investigations and Feasibility Studies,
o Negotiations,
o Settlement Authorities,
o Unilateral Enforcement Authorities,
o Administrative Records,
o Oversight and Compliance, and
o Cost Recovery.
The first step toward improving the implementation of the
enforcement program overall involves integration of the Fund and
enforcement programs. EPA must better integrate all of the
enforcement «tep« into the overall site cleanup process to ensure a
consistent enforcement-first approach to Superfund site cleanups.
For true program integration and proper management of Fund and
enforcement dollars, the Agency must adhere to some form of timeline
management to maintain the cleanup process along a continuum, as
recommended in the Superfund Management Review.
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The discussion below provides recommended improvements for
implementing specific steps in the enforcement process.
A. Identification of Potentially Responsible Parties
Topic: 1. PRP Search Process
Status and Accomplishments:
Effective PRP searches are fundamental to the Agency's .
enforcement goals of obtaining increased PRP involvement in
conducting cleanup activities and cost recovery. They produce
information about the site and parties associated with it. Since
SARA, PRP searches have been conducted pursuant to the PRP Search
Manual (August 1987). Training in the Regional offices accompanied
distribution of the manual. Also, beginning in FY86-87, each Region
hired at least one civil investigator. PRP search contractor work
assignments usually contain most of the "baseline" tasks outlined in
the Manual. This includes interviewing persons to gather
information, describing history of operations at the site, preparing
lists of PRP names, and describing status and history of PRPs. A
PRP search evaluation recently conducted by the Office of Waste ^
Programs Enforcement (OWPE) concluded that the timing of PRP
searches has shown great improvement. By the beginning of FY 88,
all searches were being initiated at least 120 days prior to NPL
proposal. However, the timely completion of quality PRP searches
with concrete evidence on liability and financial viability
continues to be of concern.
The results of this study have led the Agency, through
Congressional appropriation, to add 20 civil investigators to the
Superfund enforcement program. EPA has also continued a strong
programmatic emphasis on early PRP searches. Moreover, EPA will
continue to focus on developing optimum skill mixes to conduct PRP
searches. Thus, qualified individuals such as civil investigators
will continue to manage the PRP search process.
Headquarters has also issued additional guidelines that further
integrate the PRP search process with the goals of the enforcement
program. These guidelines describe the process from the initiation
of a search through general and special notice, and specifically
address how tot establish evidence of liability, and when to conduct
follow-up research. In July 1989, a three-day training program was
held for Technical Enforcement Support (TES) contractors as well as
interested Regional Program and legal staff to further enhance their
PRP search responsibilities. The course included instruction on how
to conduct the baseline search, how to prepare PRP search reports,
how to followup on the baseline search, how to analyze the PRP
3 "PRP Search Supplemental Guidance for Sites in the Superfund
Remedial Program," June 29, 1989.
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search results, as well as how to use particular investigative
techniques to enhance the quality of the PRP search. Headquarters
plans to canvass the Regions to assess additional training needs.
Issue: The Agency has laid the foundation for a more successful PRP
search program using civil investigators to manage the
PRP search process; utilizing strong programmatic emphasis
on earlier PRP searches; and continuing development of a
proper skill mix for adequate PRP searches. The Agency must
now begin to show the fruits of this endeavor.
Implementation Steps:
o The Regions should continue to strengthen their emphasis on
early and thorough PRP searches under the direction of
experienced civil investigators. In addition, the Regions
should conduct a preliminary search to identify obvious PRPs
upon site discovery and undertake more intensive searches as
soon as possible, preferably prior to proposed listing on
the National Priorities List (NPL).
\
o As stated in the Superfund Management Review, Regions will
create units specifically devoted to case support activities
such as searching for PRPs, gathering information, assessing
ability to pay, and identifying corporate relationships.
These units should be comprised of individuals with the
proper skill mix to perform these responsibilities.
o Headquarters should continue to conduct yearly audits of
Regional and contractor staff.
o Headquarters should provide sufficient resources and routine
training to support the Regional activities described above.
Headquarters should also continue to provide routine
training to new TES zone contractor staff responsible for
conducting PRP searches.
o Headquarters should develop criteria for determining where
early PRP searches (e.g., those conducted prior to the 1986
amendments to CERCLA) should be supplemented so that viable
PRPs: ar« sufficiently identified for cost recovery.
Topic: 1.
Status and Accomplishments:
The Agency routinely sends out at least one mailing of {104(e)
information requests to PRPs, or telephones them for information,
before any response action is taken at a site. However, some PRPs
currently perceive that the Agency does not enforce information
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requests that are never responded to, or take action when inadequate
or fraudulent responses are received. The PRP community
additionally feels that the Agency builds its cases by focusing on
parties who adequately respond to information requests, instead of
pursuing all PRPs.
Regions indicate that a significant percentage of PRP responses
to initial §104(e) information requests are inadequate and require
follow-up. However, they are sometimes unable to follow-up with a
second, more tailored information request because of resource
constraints. Based upon the level of Agency follow-up conducted so
far, Regions estimate that over 50% of all PRPs require a third
information request. Agency experience indicates that PRPs who
receive subsequent, tailored information requests provide more
detailed responses.
Although limited, enforcement of information requests has been
successful; and a joint Headquarters initiative between the Office
of Enforcement and Compliance Monitoring (OECM) and OWPE is
currently underway to encourage additional cases. As part of the
initiative, a strategy for information request enforcement is under
development. Model pleadings are being drafted to supplement the*
"Guidance on Use and Enforcement of CERCLA Information Requests and
Administrative Subpoenas,11 issued on August 25, 1988. The civil
investigators will follow-up on §104(e) information requests in
addition to performing PRP searches. Furthermore, Headquarters has
proposed a formal Superfund Comprehensive Accomplishments Plan
(SCAP) definition for §104(e) enforcement to take effect in FY 90.
Issue: Due to limited resources, Regions have been unable to fully
follow-up, or enforce, information requests that were never
responded to, or for which inadequate or fraudulent
responses were received.
Implementation Steps:
o Regions should establish management systems that assure the
timely issuance of information requests, the tracking and
review of responses and implementation of necessary
followup.
o As stated in the Superfund Management Review, separate
information gathering units and enforcement record units
have been established in some Regions to ensure that
qualified personnel are gathering, maintaining, evaluating
and verifying the information. Headquarters will encourage
other Regions to reorganize in this manner.
o Headquarters should issue a draft strategy for comment that
encourages more aggressive enforcement actions in the event
of non-compliance with information requests such as issuing
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§104(e) orders, initiating judicial referrals, and issuing
§122(e) subpoenas as soon as possible.
o Headquarters should train personnel on properly processing
information requests.
o Regions should be encouraged to refer PRPs who fail to
respond or who respond inadequately or fraudulently to
§104(e) information requests to the Department of Justice
for civil or criminal prosecution. The government should
use its administrative and civil authority and seek criminal
sanctions where appropriate.
o In order to minimize resource requirements, the Regions
should be encouraged, where appropriate, to group referrals,
(i.e., include referrals of information requests with
referrals brought against PRPs under other authorities).
Topic: 2. Information Release
Status and Accomplishments:
\
The Agency routinely contacts and provides some information to
identified PRPs through formal or informal mechanisms prior to
conducting removal and remedial actions. This information concerns
other PRPs at the site, the nature of wastes at the site, and a
volumetric ranking of the wastes by party. PRPs maintain, however,
that the Agency's release of information is inconsistent in quality
and timeliness. Studies indicate that PRPs need liability-related
information to allocate costs among themselves and to develop
settlement offers.
No Agency guidance addresses Information release. Current
Regional practice is often reciprocal in nature: the Agency will
release information to the PRPs upon receipt of certain information,
such as a response by the PRP to an information request, from them.
Issue: Regions have been reluctant to release in a piecemeal
fashion liability- related information because the
information may be too resource intensive to distribute in a
form helpful to the PRPs. In other cases, Regions feel that
the information is evidentiary in nature and that its
release might compromise subsequent enforcement action.
Implementation Steps:
o Headquarters should explore the development of guidance
on the preparation of "waste-in11 lists, which indicate
the relative share of various PRP's waste contribution
at a site, and development of data bases to assist
Regional development of "waste-in" lists.
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o As stated in the Superfund Management Review,
Headquarters will develop a strategy to encourage
Regional distribution of liability-related information
to PRPs in appropriate circumstances to facilitate
negotiations.
C. Removal Enforcement
Topic: 1. Resources
Status and Accomplishments:
EPA has been increasing its emphasis on enforcement-lead
removal activities. Removals will be "enforcement-first," taking
into account the need to proceed expeditiously in time-critical
situations.
Although removal enforcement is improving, the removal
enforcement program faces limitations due to inadequate resources.
In the Regions, the removal program is composed of a staff of
technical experts who primarily respond to classic Fund-lead
emergencies. They are able to address only a limited number of \
enforcement sites per year. If EPA were to increase enforcement
resources, these experts could address a greater number of
enforcement sites per year. Further, TES contracts are not easily
accessible to On-Scene Coordinators (OSCs). It can take several
weeks for work to be authorized. For removal actions, more
immediate assistance is needed.
Issue: The removal program is bound by resource constraints which
result in an inadequate skill mix to properly address
enforcement at removal sites.
Implementation Steps:
o Regional offices should review the resources dedicated to
removal enforcement and quickly identify needs.
Headquarters should then adjust resource allocations to
reflect the true resource needs. If internal resource
adjustments are not adequate, the Agency should then pursue,
if necessary, and on a priority basis, actions with OMB and
Congress to ensure significant commitment of resources.
o Headquarters is developing a model open work assignment
which should be distributed soon. Regions should establish
open work assignments for TES in all Regions to expedite
removal enforcement support.
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Topic: 2. Regional Management Approach
Status and Accomplishments:
Management structures in the Regions vary for the removal
program. The predominant structures are: (l) a single removal
program where all OSCs conduct enforcement-lead and Fund-lead
removals, or (2) multiple sections with Fund-lead OSCs separate from
enforcement-lead OSCs. In some Regions, physical separation
interferes with communication between OSCs and enforcement staff or
Regional Counsel. OSCs may be assigned to work in field offices or
separate buildings from enforcement staff and Regional Counsel.
Consequently, little communication is face to face and document
review is difficult.
Since a goal of the removal program is to mitigate threatening
situations as quickly as possible, at many removals it is often
difficult to afford the time to conduct enforcement activities.
Furthermore, in some Regions, formal management procedures have not
been adopted to assure an enforcement first approach when possible.
The combination of all of these factors impedes the removal
enforcement process. \
Issue: Although organizational differences exist between Regions, a
management approach that emphasizes "enforcement-first" is
more important than actual organizational structure. In
some cases, however, organizational structure appear to
obstruct the removal enforcement process.
Implementation Steps:
o Regions should assess communications between OSCs,
enforcement staff and Regional Counsel to determine whether
access and communication are hampered. Where they are
hampered, steps should be taken to enhance communications.
o Regional offices should assure that procedures are
established that normally provide for the issuance of orders
prior to the initiation of fund financed removals, except
where not appropriate, e.g. emergency; or PRP is not
identified or not viable.
o Enforcanent activities at all removal sites should be
considered first, except emergencies or where no PRP is
present.
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D. Private Party Remedial Investigations/Feasibility studies
(RI/FSs)
Topic: 1. Record of PRP RI/FS Settlements
Status and Accomplishments:
The Agency has a successful record of obtaining private party
RI/FS settlement agreements. In fact, the percentage of PRP
conductd RI/FSs out of the total RI/Fs started has consistently
increased over the last three years, and will be over 50% by the end
of 1989.
Issue: While the Agency has a good settlement record for the RI/FS,
PRPs maintain that the Agency is too inflexible with respect
to certain consent order provisions.
Implementation Steps:
o Since the Agency has a successful record of obtaining PRP
RI/FS settlement agreements, the program does not require
further incentives to obtain RI/FS settlement agreements. x
The Agency should not change its approach to create greater
incentives.
Topic: 2. Quality of PRP-lead RI/FSa
Status and Accomplishments:
In May of 1988, Headquarters issued an "Interim Guidance on PRP
Participation in Remedial Investigations and Feasibility Studies."
It was revised in January 1989. In June 1989, Headquarters issued a
model RI/FS statement of work that follows the revised RI/FS
guidance. The Agency is currently drafting a guidance manual on
oversight of PRP-conducted RI/FS and a model CERCLA administrative
consent order for the RI/FS.
Headquarters is formally evaluating PRP-lead RI/FSs to further
assess their quality, consistency and timeliness. The evaluation
will be completed by the fall of 1989. As a follow-up to the formal
evaluation, a training program is planned for Regional Project
Managers (RPM) and oversight contractors.
Issue: Some commenters criticize the Agency for allowing private
parties to conduct the RI/FS. They maintain that PRP
conducted RI/FSs are characterized by poor quality and may
result in cheaper and less protective remedies. Some
regions feel that problems with PRP-lead RI/FSs are
aggravated by the turnover rate of experienced RPMs and
Regional counsels.
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Implementation Steps:
o Headquarters is issuing guidance on RI/FS tasks and
activities, including some that may currently be poorly
conducted at some PRP-lead sites. The PRPs will be required
to follow these and other guidances.
o Headquarters will work with the Regions to identify
situations where it may be appropriate for the government to
conduct portions of the RI/FS while allowing PRPs to
conduct certain portions of an RI/FS.
o Headquarters should complete the oversight manual.
o Regions will be encouraged to implement the recommendations
of the Superfund Management Review which are directed at
decreasing the RPMs1 workload through such actions as
upgrading RPM, technical career and Regional counsel
positions, creation of deputy RPMs, and use of in-house
technical support teams.
E. Negotiations for Remedial Design/Remedial Action
fRD/RAl
Topic: 1. Achieving RD/RA Settlements
Status and Accomplishments:
EPA has a good record of achieving RD/RA settlements and the
total number and value of settlements has been increasing yearly.
Headquarters has issued a variety of guidances that pertain to
different aspects of the RD/RA negotiation process. In addition,
EPA's Management Issues Workgroup devoted a significant amount of
time to addressing how to improve the management of RD/RA
settlements. Their final report stressed the importance of the
following and provided some recommendations on how to improve these
areas: the quality and timeliness of PRP searches, the development
and utilization of effective negotiation teams, meeting negotiation
deadlines, and PRP organization through steering committees.
* "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange," October 19, 1987, OSWER Directive number
9834.4A. "Waiver of Headquarters Approval for Issuance of Remedial
Design and Remedial Action Special Notice at the Time of ROD
Signature," September 26, 1988, OSWER Directive number 9834.10-la.
"Initiation of PRP Financed Remedial Design in Advance of Consent
Decree Entry," November 18, 1988, OSWER Directive number 9835.4-2A.
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Issue: Approximately 80% of negotiations are not fully completed
during the moratorium period, although many agreements-in-
principle are reached or nearly complete. The Regions are
uncertain when unilateral administrative orders (UAOs)
should optimally be used.
Implementation Steps:
o The Regions should be prepared to issue a UAO promptly after
the negotiation deadline. In many cases this will involve
drafting a UAO during negotiations.
o Regions should routinely issue UAOs at the conclusion of
the negotiation moratorium if there are viable PRPs and a
settlement is not reached at that point. Regions should
promptly issue a UAO if:
— A good faith offer is not received by the 60th day,
— A good faith offer is received but settlement is not
reached by the 120th day, and insufficient progress
has been made to continue negotiations through a deadline
extension.
o If a negotiation deadline extension is granted because
sufficient progress has been made to justify an extension,
Regions should be encouraged to issue unilateral orders with
effective dates delayed to the new negotiations deadline.
o In addition to issuing UAO's, using model consent decrees
during negotiations should facilitate the settlement
process. Headquarters in conjunction with DOJ is
developing *a national model consent decree.
o In the limited circumstances where the Regions determine
that special notice would not be appropriate, Regions, in
appropriate circumstances, should nevertheless issue
unilateral orders to the PRPs.
Issue: Before initiating site cleanup, EPA typically
negotiates with PRPs for conduct of the RI/FS, and
again, once the record of decision (ROD) is signed,
for conduct of the RD/RA. Some PRPs maintain that
they would conduct more cleanups if EPA were more
flexible — for example by negotiating with them for
conduct of the remedial action upon completion of
the remedial design.
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Implementation Steps:
o Headquarters should explore the advantages and disadvantages
of negotiating conduct of the RD together with the RI/FS,
and separately negotiating conduct of the remedial action
upon completion of the RD. Routine Fund-financing of the RD
prior to PRP conduct of the remedial action is not a varible
option for the problem.
F. Settlement Authorities
Topic: 1. Mixed Funding and de Minimus Settlement
*•
Status and Accomplishments:
As part of EPA's effort to facilitate the use of mixed funding,
Headquarters has issued general guidances which establish the basic
framework for the use of mixed funding. The Agency has also worked
with the Regions to identify candidate mixed funding sites and has
completed an extensive training program in each Region on how to
utilize mixed funding. v
As part of EPA's effort to facilitate the use of de minimis
settlements, the Agency has issued two general guidances to the
Regional offices which establish the basic framework for the use of
de minimis settlements and one on de minimis landowner settlements.'
The Agency has also worked with the Regions to identify candidate dj
minimis sites and has completed an extensive training program in ^
each Region on how to use de minimis settlements.
In addition, the Settlements Incentives/Disincentives Workgroup
identified disincentives to the use of de minimis settlements and
specifically addressed ways to increase incentives for using de
minimi's settlements. The workgroup provided specific
recommendations for selecting candidate de minimis sites,
5 "Evaluating Nixed Funding Settlements" October 20, 1987,
OSWER Directive number 9834.9, and "Interim Policy on Mixed Funding
Settlements Involving the Pre Authorization of States or Political
subdivisions,* May 27, 1988, OSWER Directive number 9834.9a.
'"Interim. Guidance on Settlements with De Minimis Waste
Contributors," June 19, 1987, OSWER Directive number 9834.7;
"Interim Model CERCLA Section 122 (g)(4) Da Minimis Waste
Contributor Consent Decree and Administrative Order Guidance,"
October 19, 1987, OSWER Directive number 9834.7-1A; and "Guidance on
Landowner Liability under Section 107(a)(1) of CERCLA, De Minimia
Settlements under Section 122(g)(l)(B) of CERCLA, and Settlements
with Prospective Purchasers of Contaminated Property," June 6, 1989,
OSWER Directive number 9835.9.
20
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determining when to enter into such settlements, developing methods
for achieving de minimis settlements with minimal resources and
without alienating the major PRPs, and removing impediments to de
minimis settlements through the development of additional guidance.
Issue: Some Regions are reluctant to pursue mixed funding or de
minimus settlements either because they have little or no
direct experience in achieving such settlements or because
they are too resource intensive to use.
Implementation Steps:
o As stated in the Superfund Management Review, Headquarters
will explore the possibility of creating incentives for the
use of de minimus settlements by providing those Regions who
successfully achieve de minimus settlements with
supplemental resources. This will also be considered for
mixed funding settlements.
o Headquarters should explore whether "trouble-shooters"
with experience in achieving mixed funding or de minimus
settlements can be loaned to or among the Regions for y
sites where such settlements are being considered.
o Headquarters should explore whether a formal mechanism for
exchanging information among the Regions on successful mixed
funding or de minimus settlements should be established and
how it would work.
o As stated in the Superfund Management Review, Headquarters
will explore whether additional Regional training is
necessary.
Issue: The FY 89/90 budget process requires the Regions to budget
for mixed funding needs through the Superfund Comprehensive
Accomplishment Plan (SCAP). It is difficult to predict in
advance which sites may require mixed funding. Where
unanticipated mixed funding needs arise, defunding of one
site to. cover mixed funding needs for another may cause
delays in cleanup of those defunded sites. In addition,
making this information available through the SCAP could
compromise negotiations where the PRPs may obtain
information that money has already been set aside to cover a
shortfall for preauthorization.
Implementation Step:
o As stated in the Superfund Management Review, Headquarters
will continue to explore whether it is appropriate to set up
a national reserve that would be available to the Regions
for mixed funding needs.
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Issue: The Preauthorization Decision Document (FDD) is currently
drafted by Headquarters. There have been instances where
certain provisions of the FDD overlap with or are in
conflict with provisions of the consent decree. The overlap
leaves the PRPs unclear as to what can and cannot be
negotiated. Finally, there is no consistency in the manner
in which PRPs request preauthorization, although the Regions
have been instructed to provide the Harvey and Knott FDD as
an example.
Implementation Steps:
o Headquarters should explore when it is appropriate to
delegate the authority to draft the FDD to the Regions with
Headquarters oversight.
o Headquarters and the Regions should review the model FDD and
consent decree to identify where overlap exists and make
revisions accordingly.
o Headquarters should publish the Harvey and Knott POO in the
Federal Register with a notification that the Agency expects
PRPs...use this as a model for their PODs.
Issue: Questions continue to be raised about whether Federal
procurement requirements apply to the procurement of
contractors for work conducted pursuant to a
preauthorization agreement (e.g., whether competitive
bidding of contractors is needed to establish the
reasonableness of costs to be incurred by the PRPs to ensure
they can be reimbursed by the Fund for such costs).
Implementation Step:
o Headquarters recently issued a memorandum 7 to the Regions
which clarifies the procurement procedures that may be used
to assure that the costs incurred by the PRPs are
appropriate based on Federal cost principles. Headquarters
should explore whether there is the need to provide
additional support to the Regions in implementing this
memorandum (e.g., site-specific assistance).
Issue: Region* believe special accounts could be established to
retain de minimis cash-outs for immediate access of funds to
support cleanup activities when agreement has been reached.
Such access will minimize delays in funding cleanup
activities at sites, provide Regions with an incentive to
pursue de minimis settlements, and provide PRPs with an
incentive to settle.
7"Procurement Under Preauthorization/Mixed Funding," April 19,
1989, OSWER Directive number 9225.01-01.
22
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Implementation Step:
o As stated in the Superfund Management Review, Headquarters
will continue to pursue the idea of setting up special
accounts that would be available to the Regions for use at
sites where de minimis settlements are reached.
Topic: 2. Non-Binding Allocations of Responsibility fNBARs1
The Agency has issued guidance to the Regions on the
preparation of NBARs. The Agency's policy is to generally allow
the PRPs to determine allocation questions among themselves although
NBARs should be used under appropriate circumstances. To date, only
one formal NEAR has been completed, although the Regions do become
informally involved in allocations, through the development and
distribution of volumetric ranking lists. The quality of waste-in
information, which is prepared for special notice, varies by the
availability of information at particular sites.
Issue: Questions remain on what role the Agency should assume for
facilitating allocations generally and what mechanisms are
available for facilitating such allocations in appropriate*
cases. In the majority of cases, the PRPs don't want the
Agency to prepare formal NBARs, but they do want EPA to
facilitate allocations through the development of volumetric
ranking or waste-in lists.
Implementation Steps:
o Headquarters should take the initiative on promoting more
Regional involvement in facilitating allocations by:
Sending a memorandum to the Regions endorsing more
Regional involvement in allocations in appropriate
cases. This may include a discussion about allocation
mechanisms that have been used to date as well as
whether they were successful and why.
Identifying the appropriate forum for exploring the
Agency's role and mechanisms (e.g., the CERCLA
Settlements Lead Region Workgroup). The forum should
explore:
— the range of allocation mechanisms,
— under what circumstances particular allocation
mechanisms may be useful,
8 "Interim Guidelines on Preparing Nonbinding Preliminary
Allocations of Responsibility," May 16, 1987, OSWER Directive number
9839.1.
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the use of neutral third parties,
how to do allocations between owners/generators
and generators/generators, and
what has worked and what has not worked in various
Regions as well as what mechanisms should be used
to transfer this information among the Regions.
G. Unilateral Section 106 Authorities
Topic: 1. Unilateral Section 106 Orders
Status and Accomplishments:
The Agency has a high compliance rate for section 106
unilateral orders and is increasing the number of unilateral orders
issued for both removals and remedial actions.
The Agency's guidance on section 106 unilateral orders is
currently under revision to reflect statutory changes, new program
directions and accumulated Agency experience. Headquarters is also
developing model section 106 unilateral orders to facilitate
unilateral enforcement actions in the Regional offices.
Issue: The Agency is perceived as failing to establish a credible
record of administrative enforcement against recalcitrants.
Regions have in the past been reluctant to routinely issue
unilateral orders due to avoidance of delays or
misconceptions of their role in the program, and resource
constraints.
Implementation Steps:
o Instead of a quota system, Headquarters strategy should
strongly encourage Regions to issue unilateral orders
routinely to PRPs at removal and remedial sites who meet the
criteria set forth in Agency guidance, prior to Fund
financing and/or judicial referral. Historically, the
Agency has been cautious about issuing unilateral orders at
RI/F3 sites, but has done so in a few appropriate
circumstances.
o As stated in the Superfund Management Review, Headquarters
strategy should require Regions to issue UAOs before a Fund-
financed response can proceed. In exceptional
circumstances, the Regions should provide justification for
their decision not to issue the order.
Issue: The Agency has been criticized for failing to provide
settlement incentives and disincentives for nonsettlors with
respect to administrative enforcement.
24
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Implementation Steps:
o For settlements encompassing less than 100% of the
identified response action, Headquarters guidance will
encourage Regions to issue unilateral orders to compel
nonsettlors to perform the remaining portion.
o For settlements involving fewer than all of the viable PRPs,
Headquarters guidance will encourage Regions to consider
carving out separate tasks from the settlement for '
nonsettlors to perform under unilateral orders, where the
work to be performed is readily divisible.
o Where a settlement agreement for 100% of the identified
response action has been reached with fewer than all liable
PRPs, Headquarters will consider guidance for Regions to
explore use of parallel unilateral orders. Parallel
unilateral orders may assist settlors to bring contribution
actions against nonsettlors by directing liable nonsettlors
to coordinate and cooperate with the settlors' conduct of
the response action.
o Headquarters and DOJ will explore the possibility of
obtaining costs from nonsettlors through unilateral orders.
Topic: 2. Section 106 Judicial Referrals
Status and Accomplishments:
Historically, judicial referrals have been resource intensive
and have sometimes not produced satisfactory results in that they
have taken years to resolve and have allowed judicial re-examination
of remedial decisions. Statutory amendments to provisions
concerning the administrative record and judicial standard of review
were designed to resolve some of these impediments.
Headquarters issued a "Guidance on CERCLA Section 106 Judicial
Actions" in February of 1989. Headquarters is drafting a strategy
on treble damages to facilitate Agency collection of treble damages.
EPA and DOJ ar* working together to standardize enforcement tools.
They developed a new Model Litigation Report to improve the quality
of judicial referrals.
Issue: The Agency is perceived as failing to establish a credible
record of judicial enforcement against recalcitrants and
PRPs who fail to adequately comply with unilateral orders
and settlement agreements. In the past, Regions have been
reluctant to refer cases to DOJ due to resource
requirements, time constraints and the ability to fund
response actions where there were no settlements.
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Implementation Steps:
o Headquarters will encourage Regions to selectively refer
cases to DOJ to establish a credible record of enforcement
against recalcitrants. Cases should be selected based upon
criteria set forth in Agency guidance.
o As stated in the Superfund Management Review, Regions will
consult with Headquarters where PRPs do not comply with a
unilateral order.
o To secure favorable judicial review, Regions should develop
supporting documentation for administrative record purposes.
o To develop a favorable record on treble damages cases,
Headquarters should develop a strategy setting forth
criteria for optimum case selection. Criteria should focus
upon traditional liability issues in addition to
anticipating PRP assertions of "sufficient cause" (i.e. good
faith defense) for noncompliance with unilateral orders. v
o Headquarters should examine rulemaking on what constitutes
"without sufficient cause", to rebut PRP assertions of a
"sufficient cause" defense to penalties and damages at
trial.
o Good candidates for referral generally should not include
bankrupt PRPs. Bankruptcy cases should be screened.
carefully based upon the strength of evidence, the
bankruptcy situation, and litigative risks.
Issue: The Agency has been criticized for failing to provide
settlement incentives and disincentives for nonsettlors with
respect to judicial enforcement.
Implementation Steps:
o Headquarters is investigating the feasibility and
desirability of publicizing names of PRPs who fail to
participate in settlement negotiations through media
conferences and press releases in national and local
newspapers.
o Headquarters should investigate more active coordination
with the Securities and Exchange Commission to ensure that
corporations subject to securities laws are disclosing their
potential liabilities for cleanup costs, penalties and/or
treble damages, in their annual financial statements and
disclosure filings.
26
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o As stated in the Superfund Management Review, Headquarters
may pursue establishment of a litigation budget set aside of
dollars and staff, over and above the Regions' regular
budget, for use in §106 unilateral order litigation.
o As stated in the Superfund Management Review, Headquarters
will investigate the creation of Headquarters Support Teams
and Cost Recovery Documentation Teams to provide "hands-on"
assistance at critical junctures in case preparation.
o As stated in the Superfund Management Review, Headquarters
may investigate adjusting internal accountability
commitments for other site activities, to the extent that
judicial enforcement pulls staff away from other activities.
o To assist with DOJ's limited resources, Headquarters will
investigate deputization from DOJ of qualified EPA Regional
counsel attorneys and/or Office of Enforcement and
Compliance Monitoring attorneys to represent EPA in court.
Alternatively, Headquarters should pursue allocating
resources for greater litigation support.
H. Administrative Records
Topic: 1. Record Compilation
Status and Accomplishments:
Administrative records for selection of response action are
being compiled in all ten Regions. Quarterly workshops, tracking
systems, audits, and training are being used to assure the quality
and timeliness of records and public access to those records. Each
Region now has a remedial administrative records coordinator.
The records program for removal actions is improving.
Quarterly workshops, tracking systems, and training are being used
to assure the quality and timeliness of records and public access to
these records. Each Region now has a removal administrative records
coordinator.
<*
In FY 88, Headquarters published proposed regulations on
administrative records - Subpart I of the proposed revisions to the
National Contingency Plan (NCP). Headquarters also released
"Interim Guidance on Administrative Records for the Selection of
CERCLA Response Actions" in March of 1989. A "Compendium of
Guidance Documents11, centralizing guidance documents frequently used
in selecting response actions was sent on to the Regions for
comment. The compendium will be used to-save Agency resources in
compiling administrative records.
Issue: Several outstanding issues have been identified which remain
to be resolved concerning administrative records.
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o Regions believe that space for these voluminous records
will be at a premium.
o Inconsistencies exist among Regions in the timing of
compiling and updating the records.
o States are supposed to compile and maintain records for
State-lead sites. Many Regions are still compiling
them for the States.
o Decisions on what to do with confidential material
requires coordination between Regional counsel and
program offices.
o Regions are reporting that contractors claim the
Confidential Business Information privilege for much
information which restricts public access to some
information.
o Regions are also reporting problems with public
accessibility of the record at military facilities.
Implementation Steps:
o Headquarters has encouraged training sessions with
States and other Federal Agencies responsible for
compiling administrative records to cut down on work
load for the Regions.
o Headquarters should continue implementation of training
and document dissemination for Regions.
I. Compliance With Consent Orders and Decrees
Topic: 1. Tracking Systems
Status and Accomplishments:
There is no Agency-wide compliance tracking system for CERCLA
consent decrees. The Agency-wide CERCLA data base, CERCUS,,. tracks
major milestones taken at a site, but it does not track technical
compliance with consent orders or decrees. The Department of
Justice tracks the lodging and entry of CERCLA consent decrees upon
referral for litigation milestones such as entry and lodging in
court.
Also, no Agency-wide compliance tracking system exists for
CERCLA consent orders. Several Regions indicate that they have a
tracking data base system for major milestones of CERCLA consent
orders. Management in these program offices regularly receives
compliance reports from these tracking systems on all CERCLA consent
orders.
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Issue: The Agency has been criticized for failing to track
compliance with CERCLA consent orders and decrees in a
comprehensive and accessible manner.
Implementation Steps:
o Regions should establish management mechanisms to allow
appropriate oversight of consent decree and consent order
compliance.
o Headquarters will explore the resource implications
of such mechanisms and systems upon the Regions.
o Headquarters should help Regions establish their own consent
decree and order tracking systems. Regions without such
systems should be encouraged to adopt a system comparable to
the systems already in place in other Regional offices.
Topic: 2. Penalties for Non-compliance
Status and Accomplishments:
\
The Agency may pursue stipulated penalties and statutory
penalties '(under section 109) for noncompliance with orders and
decrees. EPA may pursue penalties (under section 106)
for non-compliance with orders issued under section 1069. Regions
have the responsibility of entering all penalties received from
PRPs, including stipulated penalties, into CERCLIS.
The Agency has information that indicates that it has sought
penalties from PRPs for non-compliance at eight sites. Three
penalty cases were settled through consent decrees. One case
resulted in a judgment for the Agency. The other four referrals are
still pending. However, although the data has not yet appeared on
CERCLIS, EPA is collecting penalties at other sites.
Issue: The Agency .has been criticized for failing to collect
penalties in the event of non-compliance with consent orders
and decrees. Regions have in the past been reluctant to
pursue penalties due to resource and time constraints.
Implementation Steps:
o To facilitate penalty collection, Headquarters should train
Regional Project Managers (RPMs) to develop an "enforcement
trail" by documenting important meetings and decisions.
"Guidance on Use of Stipulated Penalties in Hazardous Wast*
Consent Decrees," September 21, 1987, OSWER Directive number
9835.25.
29
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o Regions should circulate among program and ORC management
reports generated by Regional management or tracking
systems. This will notify management of non-compliance.
o Headquarters should explore providing Regions with
additional workforce or budget supplements for penalty
collection.
J. Cost Recovery
Topic: 1. Recovery of Costs
Status and Accomplishments
The cost recovery program serves a dual purpose for CERCLA
enforcement: recovery of revenues for the Fund, and encouragement
of voluntary PRP cleanup action by eliminating incentives for PRPs
to wait for the government to do the work. It is inevitable that
cost recovery lags behind Fund expenditure.
EPA has approximately 26 current guidance documents which address
cost recovery indirectly and 13 that address cost recovery directly;
3 more are in draft. Specifically, the Superfund Cost Recovery
Strategy, guidance on Cost Recovery Actions/Statute of Limitations,
guidance on Direct Referral of cases to DOJ, guidance on Documenting
Decisions not to take Cost Recovery Actions, guidance on Financial
Management of the Superfund Program, and State Superfund Financial
Management and Recordkeeping guidance have been issued since the
passage of SARA in October 1986.
Issue: EPA is criticized for accepting cost recovery settlements
for less than one hundred percent of total costs. However,
not all Fund expenditures are feasible for cost recovery.
When a settlement has been reached for a large portion of
costs, it may be prohibitively expensive to negotiate or
litigate for small remaining costs. Further, as discussed
in the Superfund Management Review, the costs attributable
to abandoned sites (sites with no PRPs) should not be
attributed-to other sites for collection; also comparisons
between revenue returned to the Fund and total amounts
authorized for the Fund are misleading.
Implementation Steps:
o As stated in the Superfund Management Review, EPA will
identify realistic expectations for the cost recovery
program — perhaps in part by clarifying what costs are
realistically available for recovery and defining 100
percent.
o Headquarters and the Regions will communicate cost recovery
priorities which stress receiving the highest return for
each dollar invested. To effectively implement this goal,
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these priorities should be promptly communicated to Congress
and the public.
Topic: 2. Documentation of All Costs
Status and Accomplishments:
PRPs are increasingly focusing on the documentation supporting
EPA's cost expenditures. However, documentation of all costs is a
burdensome process. Enforcement resources can be used more
efficiently if cost documentation questions are litigated less
frequently. Further, some Federal agencies lack the appropriate
systems to completely document their costs associated with working
on a Superfund site.
In FY88, EPA convened a cost documentation work group to
address some of these issues impeding cost documentation. As
required in the Superfund Management Review, EPA is developing a
regulation which identifies the documentation necessary to establish
costs and expenditures in a cost recovery proceeding.
Issue: To continue its aggressive approach on cost recovery, EPA \
should clarify or standardize cost documentation procedures.
Implementation Steps:
o As suggested in the Superfund Management Review, EPA will
enter into a formal agreement with some federal agencies on
acceptable cost accounting and documentation standards.
o Headquarters should continue implementation of database
systems (Integrated Financial Managment System, Superfund
Transactions Automated Retrieval Systems, category reports).
o Regional offices should consider establishing individual
cost documentation/cost recovery support units to
standardize procedures, conduct record maintenance training,
and develop necessary expertise.
Topic: 3. Removal Cost Recovery
As stated in the Superfund Management Review, the three year
statute of limitations under CERCLA/SARA for removal actions has
prompted an increased number of judicial referrals. The legal
resources required to avoid the possibility of expired claims
competes with legal resources needed for RD/RA negotiations and
enforcement. Although EPA's top priorities for cost recovery action
are remedial actions and removal actions that are valued at over
$200,000, some litigation of small cost recoveries is essential to
maintain PRP incentives to settle.
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Issue: The Agency cost recovery strategy does not precisely
identify priorities and procedures for addressing removal
cost recovery actions.
Implementation Steps:
o As stated in the Superfund Management Review, Headquarters
will establish a strategy for cost recovery of removal
actions. The process should meet the objectives of
maximizing revenue and maintaining incentives for PRPs to
settle without diverting resources from other critical
stages of the enforcement process. The strategy may
include: *
a minimum number of judicial referrals, to maintain the
incentive to settle;
use of arbitration or alternate dispute resolution (for
cases under $500,000) prior to judicial referral; and
an improved process for ordering or negotiating and
overseeing PRP removal actions, to minimize the number
of cost recovery actions that will be needed in
subsequent years.
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III. PROGRAM RELATIONSHIPS
The Superfund program is administered by a number of EPA
offices (e.g. Office of Solid Waste and Emergency Response, Office
of Enforcement and Compliance Monitoring, Office of Administration
and Resource Management), other Federal Agencies and the States.
This Plan recognizes that revisions and/or changes to the current
relationships established between these governmental entities should
be explored. Critical to a successful Superfund program is
streamlining or improving the present approach. Identified below
are major areas where adjustments to the process should assist in
achieving the goal of a more efficient and productive Superfund
enforcement program.
A. FUND/ENFORCEMENT INTEGRATION
The Superfund Management Review has recommended that the Agency
establish an integrated enforcement and response program. The
Agency should encourage or compel PRPs to conduct the response
action at all sites where viable PRPs are found before using the
Fund, except in emergencies. This "One Superfund Program -
Enforcement First" concept should lead to development of proper \
skill mixes in Regional offices with staff working on a complete
program approach. The following recommendations from the Superfund
Management Review are implementable methods of restructuring the
existing two programs' relationship.
o The Agency should develop an integrated timeline for both
enforcement and Fund-financed activities. The timeline should
include deadlines for completing negotiations and issuing
administrative orders. The timeline should also reflect program
goals for completing phases of the response action, and serve as
a benchmark for assessing progress at sites.
o The Agency should encourage a proper skill mix for support of
cleanup work, specifically including enforcement actions. The
Agency should encourage creating specialized units for
enforcement support activities, such as PRP searches, cost
recovery efforts and administrative record support in the
Regions.
Listed below are additional methods to assist in integrating
response and •nforcement activities.
1. Site Classification Syaten
Issue: Until recently, the Agency classified sites either as Fund
or enforcement-lead. This classification served two
purposes. First, it identified sites to which enforcement
activities would be addressed. Second, it was used for
budgeting purposes to estimate the FTE and dollar needs for
managing the program. For an integrated program the first
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purpose no longer exists. The second purpose (budget
estimating) is still necessary, however, but must be
structured to support the notion of enforcement actions
being considered for every site.
Implementation Step:
o Headquarters has eliminated the site classification system.
The integrated timeline will make clear that each site
should undergo basic enforcement steps, beginning with early
PRP searches. Regions should continue to estimate for
budgeting and planning purposes which sites are likely to be
enforcement or Fund-lead: Increased flexibility in funding
and the manner in which SPMS commitments are formulated will
allow (and in fact encourage) greater use of enforcement
tools. (See item 3. Flexible Funding.)
2. Integrated Priorities
Issue: The integrated fund and enforcement priorities matrix was
originally designed to: identify relative program priorities
by listing major program activities for which resources are
provided; and to provide a framework to estimate the funding
levels needed to support the activities. The overall goals
identified in the priorities matrix echo some of the major
themes of the Superfund Management Review: mitigate
immediate threats; move sites into cleanup using PRP
resources as a first resort; and maintain a baseline of
supporting activities.
Implementation Steps:
o The Agency should adopt for use in planning, budgeting and
management activities the integrated priorities matrix
approach for Headquarters and the Regions.
3. Flexible Funding
» • '
Flexible funding enhances the ability of the Regions to utilize
funds initially targeted for Fund activities to leverage against
PRPs in enforcement negotiations. The threat to use the Fund and
various enforcement tools (e.g., §106 administrative orders (AOs)
and judicial referrals) will achieve direct results by encouraging
or compelling- private parties to conduct the work. The additional
gain would be the establishment of a credible threat that encourages
PRPs to participate in the settlement process.
Issue: Fund flexibility requires early involvement of the
enforcement program in identification of PRPs and
development of a thorough case strategy. After the PRP
search and case strategy development phase, a decision can
be made whether to proceed with the Fund or commence
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enforcement activities. The presumption should be that the
Agency will first attempt to pursue a negotiated PRP action.
If the choice is made to enforce, a defined time period for
negotiations must be established. If negotiations fail, one
of two events should occur: 1) take additional enforcement
action such as a §106 action or 2) proceed with Fund-
financed activity without any significant delay.
Implementation Steps:
o A multi-million dollar fund will be maintained at
Headquarters in FY 90 to backup RD/RA negotiations. This is
in addition to the lump sum RO account which the Regions can
adjust between sites. Headquarters and Regions should
explore whether more flexibility is needed.
4. Headquarters/Regional Organization Review
Issue: The present organizational structure of the Agency,
especially Headquarters, might benefit from potential -v
rearrangement or modifications. Some Regions have already
reorganized their Superfund offices and successfully
integrated the Fund and enforcement elements.
Implementation Steps:
o As stated in the Superfund Management Review, Headquarters
will consider the benefits of conducting a review of
Headquarters and Regional operations for possible
restructuring of some of the offices and/or functions.
B. HEADQUARTERS/REGIONAL/DOJ RELATIONSHIPS
1. Consistent Goals;
Issue: Technical staff and attorneys perceive that each have
different goals when pursuing settlements.
Technical staff are tasked with achieving a quick and technically
proper cleanup while attorneys are tasked with developing legally
defensible and protective documents.
Implementation Steps:
o Headquarters, Regions, and the Department of Justice (DOJ)
should identify and commit to shared short and long-term
goals and objectives for the program (e.g., in the
10OERR has established a workgroup to review problems and/or
issues related to flexible funding.
35
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Interagency Agreement (IAG)) with a clear statement of their
relationship to Congress and the public. These shared goals
must encompass the enforcement program as a whole as well as
individual site situations. As stated in the Superfund
Management Review, EPA (Headquarters and Regions) and DOJ
will hold a top-level conference to ensure consensus on
these goals.
o As stated in the Superfund Management Review, EPA and DOJ
will establish a mandatory site management planning process
for use by Headquarters, Regions and DOJ that would set out
a coordination process among offices and Agencies involved.
o Whenever appropriate, EPA should provide explicit and early
opportunities for DOJ involvement in site management
planning and negotiations. This will require development of
routine communication and management systems to assure all
necessary offices are involved.
2. lAG/Accountability/Resources v
Issue: There is frustration in both EPA and DOJ at their perceived
inability to hold the other organization accountable for
activities critical to the success of the enforcement i
process. The legal arms of the enforcement process do not
view themselves as full partners in budget planning.
Regional counsel are frequently perceived as underfunded.
Implementation Steps:
o Headquarters should assure adequate DOJ funding through the
IAG that is closely coupled with their accountability for
timely enforcement action.
o Headquarters should involve Regional counsel and DOJ in the
determination and accountability of the Superfund
Comprehensive Accomplishments* Plan (SCAP) and Strategic
Planning and Management System (SPMS) commitments, and
development of case/site management plans.
3. Delegations/Management
In FY 88, two different civil judicial enforcement authorities
were delegated almost entirely to the Regional Administrators.
Settlement authority is now delegated to the Regional Administrators
for cases to be settled involving past and future costs totaling
under $500,000. Additionally, the Assistant Administrators for the
Office of Solid Waste and Emergency Response and the Office of
Enforcement and Compliance Monitoring signed a memorandum waiving
their concurrence on settlements for numerous categories of CERCLA
cases..
The authority to refer CERCLA civil judicial actions to DOJ was
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modified in April 1989. Under the new procedures, almost all
classes of cases that nay be brought under CERCLA are directly
referred to DOJ (Office of Waste Programs Enforcement/Office of
Enforcement and Compliance Monitoring review without concurrence) .
Issue: There is concern that situations may have occasionally
arisen in which EPA Headquarters should have been consulted
on a particular case but notification is provided late, and
commitments may have already been made at the negotiations
table. Further, the reduction in the level of Headquarters
review of cases that has occurred, as a result of recent
delegations, could force DOJ into the role of ensuring
national uniformity in settlements.
Implementation Steps:
o The role of Headquarters and OOJ should be established as
early as possible in development of a case involving a
potential referral or settlement. Headquarters should
complete its work on establishing protocols for coordinating
pre-referral negotiations among the Regions, Headquarters
and DOJ. Identification of roles and responsibilities mayv
assist in providing early warning of cases or issues that
may require Headquarters concurrence/consultation.
Issue: Regional and DOJ staff have questioned the effectiveness of
the Settlement Decision Committee (SDC) , which has no
provision for reaching final agreement absent consensus
except by escalating issues to EPA Assistant Administrators
and the DOJ Assistant Attorney General.
Implementation Steps:
o Headquarters should create an enforcement expediter position
within the Agency with the primary function of facilitations
prompt resolution of enforcement or settlement issues among
Regions, DOJ or Headquarters.
o Headquarters should revitalize and streamline the SDC
process to quickly resolve case-specific issues. For
example, strive for a goal of a 5-7 working day deadline for
a meeting.
4 •
Issue: Communication between Regions, Headquarters, and DOJ is
often difficult. There is also a need to assure that all
three parties have access to the same information resources.
Database systems currently used by OECM, OWPE, and DOJ are
incompatible.
Implementation Steps:
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o The Agency should assure that enforcement and settlement
decisions are communicated in a timely fashion, while
assuring that enforcement sensitive information is
protected. Development of a national training and
information exchange program for communicating current
enforcement issues will assist in the effort.
o Headquarters and DOJ should quickly reach agreement on and
distribute model settlement language. The draft model
consent decree now being developed can help significantly.
o Headquarters and DOJ should study the possibility of
integrating their individual database systems.
o Headquarters should continue the development of the
Enforcement Bulletin in conjunction with the Waste
Attorney's Bulletin and effective communication of
negotiation positions.
Issue: Technical and legal questions overlap in the Superfund v
enforcement process. Technical staff argue that lawyers
intrude on technical prerogatives, while attorneys question
the sensitivity of technical staff to legal implications.
Implementation Step:
o The Agency should implement "cross-training" sessions for
technical and legal staff to sensitize them to the concerns
and view points of each others' offices.
C. STATE/FEDERAL RELATIONSHIP
EPA and State representatives from the Superfund Management
Review agreed that the State/Federal relationship should be
reexamined after the release of the Administrator's report. The
State/Federal relationship is a critical part of the program and one
that needs a comprehensive review. The fostering of a strong
State/Federal partnership has been promoted in the last few years
and strides have been made in improving both communication between
the Regions and States and commitment of resources (both staff and
grants) to States to assist in their program development 11.
11 "Interim Final Guidance Package on Funding CERCLA State
Enforcement Actions at NPL Sites," April 7, 1988, OSWER Directive
number 983l.6a-6d. "Counting State-lead Enforcement NPL Sites
toward the CERCLA 8116(e) Remedial Action Start Mandate," October
21, 1988, OSWER Directive number 9831.8. "Supporting State Attorney
General CERCLA Remedial and Enforcement Response Activities at NPL
Sites," June 21, 1988, OSWER Directive number 9831.7.
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Issue: Presently, there is no comprehensive framework for
State/Federal relations in CERCLA enforcement. Both
entities have a role to play in the cleanup of National
Priorities List (NPL) and non-NPL sites. Limits in the
number of State/Federal conflicts and resource duplication
can be achieved if consistency in approach and guidance can
be attained. Additionally, gains in expertise and
capabilities by the States can only aid EPA in addressing
the cleanup problems.
Implementation Steps:
o EPA should strive to minimize whenever possible its
oversight of State response actions, and maximize the use of
qualified States for oversight of PRP cleanups. State-lead
enforcement actions can assist the Agency in meeting its
statutory goals for remedial action. Regions should be
willing to commit and provide financial resources, for State
enforcement activities.
o The Superfund Management Review recommends working to
resolve the fundamental policy question of what the long-v
term role of States will be in the Superfund program. EPA
and the states will work to develop short and long-term
strategies to enhance State program capability, improve
State performance at State-lead Superfund sites, and foster
State remedial activity at sites not on EPA's NPL.
The EPA/State Enforcement Workgroup will be instructed to
prioritize key issues in the State/Federal relationship and
to develop options and recommendations for the EPA
Management/ State Environmental Commissioners meetings.
D. COMMUNITY INVOLVEMENT AND PUBLIC OUTREACH
The Superfund Management Review took a close look at the need for
the Agency to be more responsive to citizens' concerns with and
interests in the Superfund program. The Superfund Management
Review's recommendations endorse increased involvement by citizens
in Superfund decisions at each stage of the Superfund process and
encourage managers to be more responsive to issues raised by the
public. One critical area for enforcement that the Agency must work
to change is the belief that PRPs are provided better information
than the public.
The enforcement program plays a major role in educating the
public regarding the need to work with PRPs to move settlements
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along and achieve site cleanup . The public will need to
understand the rationale behind the "enforcement-first" approach.
The public can be a great ally for the program once the public
understands the process the Agency undergoes to bring a PRP to
settlement.
Issue: Currently, EPA lacks a complete strategy for communication
of the goals of the Superfund enforcement program on a
national scale. There are two factions to which outreach
must be directed: 1) parties with direct interest (e.g.,
PRPs, environmental organizations, media) and 2) the general
public.
Implementation Steps:
o The enforcement program should look to expanding the use of
simple fact sheets and pamphlets that the Remedial Project
Managers (or On-Scene Coordinators) can distribute to the
public. The public's awareness of the various tools they
have regarding information (i.e., administrative record file
or information repositories)can assist in involving the \
public earlier in the decision-making process.
As the Superfund Management Review highlighted, a commitment
of resources is essential for Regions to provide enough
staff to work more closely with the public.
o The Superfund Management Review recommended making public
education a Superfund priority for all front-line managers
and staff. EPA should educate the public (Congress,
environmental and industry groups, State and local
organizations and general public) as to the realistic
expectations and achievements of the Superfund program
(enforcement and Fund) through such actions as public
forums, speeches, and press releases. Such activities can
stress the reinvigorated use of the enforcement process,
plus create a positive image for those PRPs who choose to
settle with EPA and send a negative message about
recalcitrant PRPs.
12 "Community Relations during Enforcement Activities and
Development of the Administrative Record," November 3, 1988, OSWTR
Directive number 9836.0-1A.
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IV. RESOURCE IMPLICATIONS
This Superfund Enforcement Strategy and Implementation Plan
does not attempt to quantify the resource implications of these
recommendations. However, the following conclusions can be drawn
from the report.
o Enforcement is staff intensive. Process and management
reforms can achieve only limited improvements without
resources. Thus, the recommendations of this Plan are
contingent upon adequate resources.
o Increased resources for enforcement and oversight of private
party response is ultimately a worthwhile investment,
because it allows EPA to leverage private party resources
for cleanup. Fund-financed response postpones but does not
eliminate the need for enforcement through cost recovery*
o Increased enforcement activity should help to leverage
additional private party resources, but it is
counterproductive to cut the resources available for Fund- .
financed design and construction. The threat of Fund use y
for response action is a demonstrated effective incentive
for private party cleanup.
o EPA should establish consistent priorities by identifying
the appropriate resources and the relative priority of
specific steps in the process. EPA must minimize erratic
and inconsistent signals 'and competing demands on
enforcement personnel.
o Enforcement activities are critical at all stages of
response. It is not possible to run an effective program by
diverting resources from one stage of the process (e.g., PRP
searches) to another (e.g., negotiations for remedial design
and remedial action). The enforcement process needs to be
sustained at each step.
o Many sites are reaching the stage of negotiations for
remedial design and remedial construction with PRPs willing
and able, to do work and commit resources. EPA must have
adequate resources for negotiations and oversight at these
sites.
o EPA can make the enforcement process more efficient. For
example, a cost recovery regulation should make the cost
recovery process more efficient.
o Implementation of the recommendations in this Plan may
require increases in the enforcement budget for FY90 and
FY91.
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APPENDICES
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APPENDIX A
HOUSE AND SENATE APPROPRIATIONS COMMITTEES REPORT LANGUAGE
HOUSE APPROPRIATIONS LANGUAGE
In attempting to meet the statutorily mandated schedules for
remedial investigation/feasibility studies (RI/FS) and cleanup
starts, EPA has relied primarily on contractors paid with trust fund
monies instead of aggressively seeking private party cleanups.
Unfortunately, the enforcement program has come to be viewed by EPA
staff as too burdensome and time consuming to justify serious
attention or resources. The overwhelming reliance on trust fund
financing as the path of least resistance has created two serious
problems. First, it squanders Superfund's finite resources on a
relatively few projects, limiting the number of sites which can
ultimately be cleaned up. This is contrary to the legislation's
clear intent that the trust fund be used to "leverage11 privately
financed actions wherever possible.
Second, this approach has undermined the credibility of the
Superfund enforcement program. Instead of creating incentives for
private parties to accept early responsibility for cleanups, EPA's
passive approach to enforcement has rewarded recalcitrants by giving
them, at a minimum, a "free ride" during the lengthy feasibility
study and design process. Unless these two problems are corrected
through fundamental changes in management philosophy and approach,
the Superfund program is destined to failure.
The Agency's reliance on trust fund monies to initiate remedial
actions is based on the supposition that reimbursements can be won
from private parties in subsequent cost recovery actions. However,
EPA's cost recovery program is either non- existent or ineffective
in all but one region. Over $300,000,000 in claims has already been
forfeited due to cost accounting deficiencies. And the policy of
postponing recovery initiatives until years in the future has
reduced prospects for successful recovery and undermined the
credibility of Superfund enforcement in general. An underlying
cause of these problems is that EPA's internal management system and
source allocation process provide absolutely no incentives for site
managers and regional staff to enforce private cleanups and win
early cost recoveries.
The Environmental Protection Agency is directed to submit a
report by January 1, 1989, providing recommendations for program,
policy, and management changes which will create meaningful,
positive incentives 1) for regional staff to achieve enforcement
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settlements and cost recoveries, and 2) for responsible parties
to settle and undertake privately financed RI/FS's and cleanups, in
undertaking this evaluation, the Agency is urged to consult with the
states, the environmental community, responsible parties and other
experts. Up to $500,000 is authorized to be reprogrammed for this
purpose in 1988.
SENATE APPROPRIATIONS LANGUAGE
The Superfund Enforcement Program, due to its inherently
adversarial nature, often leads to disagreements and delays. The
Committee is aware that enforcement philosophies and strategies may
differ significantly among EPA's Office of Waste Programs
Enforcement, Office of Enforcement and Compliance Monitoring, Office
of General Counsel, regional offices, and the Department of Justice.
Much better defined procedures, policy guidelines, and criteria are
needed in a timely fashion to give consistency to the Superfund
program. In order to accelerate cleanup activities the Agency is
instructed to undertake a formal evaluation of Superfund
enforcement. Specifically, it should determine how the three
headquarters enforcement-related offices, the program office and the
Department of Justice cause delays, misdirection, inconsistency and
otherwise may delay regional offices in their Superfund enforcement
effort. This effort should develop a consistent framework of
enforcement policies and the procedures needed to assure their
implementation. Specific recommendations should also address ways
to assure policy level review of enforcement agreements in the
Regions on an expedited basis; policy level reviews should be
defined with some specificity; and provisions for referral to
Headquarters of cases requiring policy level reviews in an expedited
basis should be provided.
A-2
APPENDIX B
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LIST OF ENFORCEMENT ISSUES RAISED BY REPORTS ON SUPERFUND
The following is a list of studies of Superfund conducted from
1986 until the present. The studies are arranged according to the
organization that prepared them.
CONGRESSIONAL
Office of Technology Assessment (OTA)
1. "Are We Cleaning Up? Ten Superfund Case Studies," OTA, June
1988.
Numerous findings were provided. No recommendations specific to
enforcement were included.
2. "Assessing Contractor Use in Superfund,11 OTA, January 29, 1989.
No recommendations specific to enforcement were included.
General Accounting Office (GAO) \
• " -\ts
3. "Superfund: overview of EPA's Contract Laboratory Program," GAO,
October 1987.
Comprised of a fact sheet. Did not raise issues.
4. "Superfund: Improvements Needed in Workforce Management," GAO,
October 1987.
No recommendations specific to enforcement were included.
5. "Superfund: Extent of Nation's Potential Hazardous Waste Problem
Still Unknown," GAO, December 1987.
No recommendations specific to enforcement were included.
6. "Superfund: Cost Growth on Remedial Construction Activities,"
GAO, February 1988.
No recommendations specific to enforcement were included.
7. "Superfund Contracts: EPA Needs to Control Contractor Costs,"
GAO, July 1988.
No recommendations specific to enforcement were included.
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8. "Report on Environmental Protection: Protecting Human Health and
the Environment Through Improved Management," GAO, 1988.
No recommendations specific to enforcement were included.
9. "Report on Hazardous Waste: Future Availability of and Need for
Treatment Capacity are Uncertain," GAO, 1988.
No recommendations specific to enforcement were included.
10. "Superfund: Missed Statutory Deadlines Slow Progress in
Environmental Programs," GAO, January 26, 1989.
No recommendations specific to enforcement were included.
11. "Interim Assessment of EPA's Superfund Program," GAO at
Senator Lautenberg's request, October 1988.
In October, 1988, the GAO delivered to Senator Frank Lautenberg
in his capacity as chairman of the Subcommittee on Superfund and
Environmental Oversight, an interim report on Superfund
Enforcement. The purposes of the GAO study were three:
assessment of the agency's use of its enforcement tools to v
achieve CERCLA goals; analysis of ways to improve the cost
recovery program; and evaluation of the adequacy of the Agency's
Superfund planning and management systems.
The interim report covered the first two areas. It found that
the enforcement program could do better in using available tools
and in recovering costs. In particular, the study concluded
that:
o the adequacy and timeliness of EPA searches for
potentially responsible parties liable for site cleanup
are continuing problems;
o the tracking and follow-up of information request
letters used to further establish the liability of
potentially responsible parties for a site have been
inconsistent;
o reasons for not using unilateral administrative orders
to compel responsible party cleanup of sites are not
fully documented;
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o special notice letters used to start negotiations for
responsible party cleanups are not being issued on a
timely basis; and
o efforts to recover Superfund monies used to clean up
sites have been untimely and have been hampered by
accounting system problems.
Senator Lautenberg
12. "Sixteen Recommendations for Improving the Superfund
Program." Two reports dated December 1987 and October 1988.
Of the sixteen (actually seventeen) recommendations, the
following were specific to enforcement:
o Training institutes should emphasize contracts
management, legal training and site management;
o EPA should improve site work oversight by assuring that
site managers receive backup from other Regional staff
and by keeping caseloads manageable;
o EPA should replenish the fund, and push the program
forward by aggressively using all its enforcement
tools, and establish enforcement consistency throughout
the Regions. Vigorous enforcement will also provide
incentives for settlements;
o EPA should also set aside funds for cleanup in the
event settlement negotiations fail;
o To move cases along more efficiently, EPA should push
for more specialization and more thorough case
development by Regional legal staff; and
o EPA should also explore whether creating legal
expediter positions in the Regions and/or Headquarters
can streamline the process.
House Appropriations Committee
13. Hous* Appropriations Committee Study of, Superfund, December
1988.
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Of the ten reports presented, two covered issues specific to
enforcement:
1. status of EPA's Superfund Program. Specifies that getting
polluters to be responsible for cleanup was a major goal which
EPA has not recognized. Accuses EPA of running a public works
program instead. Calls for improved performance in both
enforcement-led initiatives and cost recovery.
2. EPA/DOJ Management of Enforcement. Settlement negotiations
with PRP's-generally protracted, difficult, and complex. There
are problems especially with multiple PRP's and multiple
Federal/State levels of review. EPA case development activities
(relating to cost documentation, administrative record, PRP
searches, and evidence supporting liability) could be improved.
Also, improvements could be made in cost recovery performance.
STATES
Association of State and Territorial Solid Waste Management
Officials (ASTSWMO) \
14. Letter to Lew Crampton, EPA, ASTSWMO, February 7, 1989.
The ASTSWMO letter raised the following issues and
recommendations:
Finding l! Several States and EPA have proven that with adequate
funding to back up enforcement negotiations, the number of
enforcement settlements increased dramatically.
Recommendation 1: Use available funds to support
enforcement negotiations first, then for the remedial
process.
Finding 2t Some lawyers by their training (case-by-case methods)
are not likely to be effective leaders in increasing
Superfund/RCRA case handling production.
Reconaendation 1: Allow program personnel to regain control
of thev program from the lawyers.
Finding 3? EPA has been relying too heavily on Fund-lead
activities while not placing enough emphasis on getting PRPs to
undertake or pay for cleanups. This is contrary to Congressional
intent.
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Recommendation 1: Integrate the fund-financed and
enforcement efforts so one complements the other under a
program strategy which seeks PRP commitments in the first
instance and spends money where PRPs are unwilling or unable
to do the work.
Recommendation 2: EPA should work with States to provide
tools such as funding and standardized enforcement
approaches and agreements which help build State enforcement
programs.
National Governor's Association (NGA)
15. Recommendations made to the Bush transition team, NGA,
January 30, 1989.
NGA provided the following issues and recommendations:
Finding 1: EPA should place greater emphasis on compelling
cleanup by responsible parties. While using the Fund at sites
enables EPA to move faster at many sites, it inevitably threatens
the long-term solvency of the Trust Fund.
Recommendation 1: Help build State enforcement programs by
providing States with tools such as funding, flexibility to
use Fund monies if negotiations fail, and standardized
documents to execute enforcement agreements.
National Association of Attorneys General (NAAG)
16. Recommendations for Environmental Protection in the 1990's,
NAAG, February 9, 1989. #
The issues and recommendations raised by NAAG are as follows:
o Expand funds available for State-lead enforcement
cases*
o Fund States to assist in cost recovery efforts.
o Decisions regarding using RCRA or CERCLA authority at a
site should be made jointly by EPA and the State.
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o Increase the emphasis on enforcement actions against
responsible parties.
o Funds should be earmarked for enforcement and States
should be notified of their availability.
NON-GOVERNMENTAL
17. "Making Superfund Work," Clean Sites Inc., January 1989.
Clean Sites, Inc.'s major recommendations are as follows:
Recommendation 1: Maximize enforcement and settlement to
increase responsible party cleanups.
1. To increase the number of site cleanups while
conserving Fund monies, EPA should accelerate
implementation of a strategic enforcement program:
a) EPA should direct a significant number of \
administrative orders and judicial enforcement
actions toward recalcitrant responsible parties to
impel them to undertake or participate in site
cleanups;
b) EPA should increase the number of cost recovery
actions brought against responsible parties, where
government funds have been used to conduct cleanup
activities, and should file these actions sooner.
2. EPA should implement incentives to obtain responsible
party agreements to undertake site cleanups, such as
structuring settlements so that viable non-settlors are
penalized in subsequent litigation by paying more than
if they had settled.
3. EPA should establish realistically high goals .for the
number of responsible party cleanups and hold its
Regional offices accountable for meeting these goals
through a combination of enforcement actions and
settlements.
4. EPA should implement incentives to obtain responsible
party agreements to undertake site cleanups including
expanding the use of mixed
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/ funding and de minimis settlements, making non-settlors^
pay more after subsequent litigation, looking to non-
settlors first to cover subsequent site costs.
Recommendation 2: Improve the remedy-selection process
1. EPA should explain how the different selection of
remedy criteria in Section 121 are to be evaluated and
weighed.
2. EPA should continue to encourage "early actions"
including those undertaken by PRPs and develop "model
remedies."
3. An appropriate array of treatability studies should be
included in the RI/FS at any site where there is
significant uncertainty regarding the remedies being
considered.
4. Headquarters and Regions should establish panels to
review technical issues.
\
5. EPA should establish and make easily accessible and
well publicized the library of Records of Decisions
(RODs) for Regional use.
6. EPA should aggressively implement the technical
assistance grant program.
Recommendation 3: Manage the Superfund program for optimal
progress
1. EPA should continue to delegate site-specific decision-
making authority to the Regions. Regional
Administrators should be more accountable to
Headquarters.
2. Regional decisions regarding site cleanup technology
should be subject to a limited and expedited
discretionary administrative appeals process to-HQ to
ensure consistency and redress administratively any
factual errors.
3. Roles and responsibilities both in the Regions and HQ
should be clearly defined.
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4. Remedial project manager positions should be-upgraded,
and staff should be provided with training.
5. HQ and Regions should not be reorganized at this time.
Recommendation 4: Define new measures of program success
1. EPA should track measures of program success that focus
on achievements (i.e., speed of site cleanup, the
number of sites financed by PRPs), rather than focusing
primarily on inputs (i.e., RI starts).
2. EPA should provide the public with understandable,
timely and easily acceptable information regarding
Superfund progress.
18. "Blue Print for the Environment," Consortium of
Environmental Groups, December 1988.
Of the major recommendations outlined, the one specific to
enforcement is as follows:
Recommendation: The Environmental Protection Agency should
make'"greater use of the Superfund statute giving the Agency
authority to order potentially responsible parties to
conduct remedial investigations and feasibility studies and
site remedial actions; this authority includes unilateral
administrative orders which trigger treble damage penalties
if violated and strict joint and several liability.
Implementation Steps:
1) By June 30, 1989, each EPA Regional Office should
nominate at least twenty percent of the sites at which
it is presently negotiating with PRPs for a unilateral
administrative order to be followed by an enforcement
suit if the administrative order is not complied with.
Attorneys from the Regional Offices, the Office of
Enforcement and Compliance Monitoring and the
Enforcement Section of the Department of Justice's
Lands and Natural Resources Division should work
together to develop these lawsuits.
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2) By October 30, 1989, the Assistant Administrator for
the Office of Solid Waste and Emergency Response shouiS
report to the appropriate Congressional Committees
(including the Oversight and Investigations
Subcommittee of the House Energy and Commerce
committee) on EPA's progress towards achieving this
goal. By January 1, 1990, each EPA Regional Office
should designate another twenty percent (or more) for
similar treatment; Congress should receive another
report by April 30, 1990.
19. "Right Train, Wrong Track: Failed Leadership in the
Superfund Program," Environmental Defense Fund, Hazardous
Waste Treatment Council, National Wildlife Federation,
Natural Resources Defense Council, Sierra Club, U.S. PIRG,
June 1988.
No recommendations specific to enforcement were included.
•
20. "Mandate for Leadership III. Policy Strategies for the
1990«s," Heritage Foundation, 1989.
V
The issues and recommendations specific to enforcement are as
follows:
o PRP's should have the option to seek independent
arbitration for cleanup responsibility and costs.
should be limited to assigning costs proportionate to
each party's share of responsibility if parties agree
to binding arbitration. Once an EPA-supervised cleanup
is completed/ all firms that complied with the findings
under arbitration should be released from future
private tort liability. Questions of liability for
injuries incurred prior to cleanup should be left up to
the States. Firms refusing to participate could still
be sued for the remaining cost of the cleanup.
21. "Toward A More Effective Superfund Enforcement Program,"
Environmental Law Institute, March 1989.
The major issues, findings and recommendations of the ELI Report
are outlined below:
A. ELI evaluated two major aspects of the Superfund enforcement
program: the legal enforcement structure (including
policies, procedures, guidance, law and
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court decisions), and the institutional arrangements for
implementing the Superfund enforcement program.
The enforcement analysis provides a theory of enforcement
from which basic principles are derived, describes existing
enforcement in the Superfund program, and then applies the
basic principles in an example national enforcement
strategy. The main points are:
1. EPA needs an integrated national enforcement strategy
(jointly with the Department of Justice) which is
vigorously implemented because:
a. a national strategy is the most effective,
especially with limited resources; and
b. the reasonable expectation of punishment elicits
cooperation.
2. The national enforcement strategy should be based on
the principle of creating a reasonable expectation
among responsible parties that:
a. it will be less costly to fulfill their legal
obligations on the government's terns than to fail
to meet those obligations; and
b. the risks of trying to escape the costs of
cooperation is outweighed by the risk of incurring
the cost of government detection and punishment.
3. The tasks necessary to implement this principle are:
a. create the legal obligation by identifying the
site, response action, and responsible party, and
making the requirement explicit (orders for work
or demands for payment);
b. detect those parties who are responsible for
cleanup;
c. communicate to the responsible parties their
obligations and the risks and consequences of
failing to comply;
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d. punish those who don't comply in a timely fashion
4. ELI evaluated the existing Superfund enforcement
program, and found that it did not have a national
strategy or conform to their basic principles.
5. Although ELI provided a detailed, national strategy,
they stress that it is only and example, and that the
key is to have a strategy that meets the basic
principles, is thought through to the details, and is
vigorously implemented. Key elements of ELI's example
enforcement strategy include:
*
o improved information gathering with respect
to cost documentation, compilation of
administrative record, PRP searches, and
information requests to PRPs;
o greater use of unilateral administrative
orders for response actions, creating the
potential for treble damage recovery for
noncompliance without sufficient cause; and
o communicate the risks of non-compliance,
through publicizing successful cases and
through strategies developed with other
agencies regarding liability under other
laws.
C. The institutional analysis covers three areas: performance
measures, organizational structure, and resources and
resource allocation. As before, ELI begins with basic
management principles, then covers shortcomings in the
- existing program, and finally presents options for
improvement, describing both their pros and cons. ELI
points out that improvements in the three areas are
complementary and not intended to stand alone.
1. Performance Measures. The existing measures (SPMS &
SCAP) are not consistently successful in motivating
personnel; ignore quality; are not
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sufficiently linked to the ultimate enforcement
objectives; and do not measure or reward multi-year
performance.
a. Option 1 - replace SPMS targets with enforcement-
oriented targets (such as successful PRP
searches).
b. Option 2 - reduce the number of SPMS & SCAP
targets to a smaller number of performance
measures such as PRP financing as a percentage of
total costs).
c. Option 3 - develop and use multi-year performance
targets in addition to annual and quarterly
targets.
organizational Structure. Under the existing structure
it is unclear who has ultimate responsibility for a
national enforcement strategy; responsibility for an
enforcement strategy is not accompanied by necessary
authority; personnel (staff and contractors) are not v
always appropriately skilled.
a. Options 1-3 - develop a range of options for
restructuring headquarters responsibilities from
major changes to keeping the current structure.
b. Options 4-5 - establish separate information
gathering units and enforcement records units in
each Region to help ensure that the personnel are
qualified.
c. Option 6 - obtain"authorization for ORC or OECM
attorneys to represent EPA in court by having the
DOJ selectively deputize qualified EPA attorneys.
d. Options 7-8 - establish DOJ Regional offices to
facilitate their early involvement, or allocate
FTE's to U.S. Attorney's offices so that they can
provide litigation support to EPA Regional
offices.
0» Option 9 - redraft and enforce the MOU with DOJ in
order to exercise greater control over the
enforcement program.
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f. Option 10 - improve the training of ORC attorneys.
3. The Resource Allocation Process. There are four
problems associated with the existing system:
o The existing allocation process creates an
incentive system that lowers the priority of
enforcement activities because of the
relationship between performance measures and
resource allocation.
o The use of national average pricing factors
limits the resources available for
enforcement activities, resulting in
inadequate resources for some Regions.
o Real and perceived restrictions on the use of
resources by Regions reduces their ability to
respond to unexpected enforcement needs by
. reallocating resources. *
""* o The site classification system artificially
limits the range of enforcement tools
available for each site and restricts the use
of certain tools at crucial times.
a. Option 1 - Make specific allocations for
preparation and maintenance of administrative
records and cost documentation.
b. Option 2 - Encourage Regional pricing of site-
specific activities instead of using national
pricing factors.
c. Option 3 - Reduce restrictions on the Regions' use
of resources, allowing reallocations to occur to
meet contingencies or address priorities.
d. Option 4 - Create a central fund for remedial
actions to create appropriate incentives for
Regions and PRPs, and provide headquarters with
greater control.
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e. Option 5 - Eliminate the site classification
requirement as fund-lead, enforcement-lead, or
PRP-lead in order to make better use of
enforcement tools.
f. Option 6 - Increase total FTE's for the Superfund
program.
22. "Superfund From the Industry Perspective: Suggestions to
Improve and Expedite the Superfund Remediation Process, ••
Consortium of Industries, February 1989.
The consortium of industry groups provided the following findings
and recommendations:
Finding It EPA and industry must cooperate in order to maximize
the number of sites addressed and to avoid squandering money on
nonproductive transaction costs.
Finding 2: Liability is usually not an issue. Main issues of
concern to EPA and industry are settlement, selection of remedy,
and equitable allocation of costs. \
Finding 3; The Remedial Investigation/Feasibility Study (RI/FS)
process frequently takes too long, is far too costly, focuses on
irrelevant considerations, fails to collect necessary data,
collects extraneous data, and fails to provide an adequate basis
for selection of a remedy.
Recommendation 1: Potentially responsible parttes^JPRPs)
must be notified of their potential liability^pripj^-to the
start of an RI/FS, and EPA and the PRPs should start and
maintain a technical dialogue which will reduce the cost of
technical studies.
Recommendation 2: To streamline the RI/FS, the universe of
alternative remedies reviewed should eliminate alternatives
that are determined to be infeasible, and should focus on
one realistic remedy rather than on every conceivable
remedy.
Reconendation 3: Model RI/FS's should be developed for
classes of sites.
RecovMndation 4: EPA should consider whether some aspects
of the site remediation can be implemented prior to the
completion of the RI/FS. Conversely, EPA should not force
PRP's to undertake interim measures which are not consistent
with the expected final remedy.
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Recommendation 5: EPA and industry should establish a
national clearinghouse on remedies.
Recommendation 6: EPA HQ and Regional staff should meet
with industry representatives to discuss RI/FS streamlining.
Finding 4; EPA needs to ensure equitable treatment of all
parties. Past settlement negotiations have not pursued enough
recalcitrant parties. As a result settlements have become much
more difficult because cooperative companies are reluctant to
shoulder the costs and burdens of cleaning up the waste of
recalcitrants.
Recommendation 1: EPA should use its investigatory powers
early on in the process to identify and pursue all PRPs at
each site, and should share this information with PRP groups
which may also be pursuing a similar effort.
Recommendation 2: EPA should consider good faith claims
that certain PRPs are not liable or that EPA has
miscalculated their contribution. -v
Recommendation 3: EPA should use available settlement tools
fde minimis settlements, NBARS, and mixed funding) to
facilitate settlement, discourage litigation and encourage
cleanups.
De minimis settlements should be allowed early using a
premium that reflects the uncertainties at the site, and the
money from these settlements should go to an escrow fund for
cleanup, not to the Superfund or to EPA for past costs.
NBARS should be provided as a starting point for allocation
of responsibility, if the PRPs so desire. Development of
presumptive liability shares for owner/operator and
transporters would also facilitate settlement.
Mixed funding should be approved on an expedited basis to
provide seed money to start cleanups more quickly. In order
to be effective, projects funded this way should not be
subject to federal procurement regulations which were not
designed for this type of situation, and which may add
greatly to the delay and cost of cleanup.
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Finding 5; Time and effort of both industry and EPA are wasted
in negotiating language of certain clauses of consent decrees
(CD's) and administrative orders (AO's) which are of little
practical significance (i.e., jurisdiction).
Recommendation 1: Standardize the language of the following
clauses for CD's and AO's: Jurisdiction, Permits, Force
Ma-ieure. Stipulated Penalties, Disclaimer of Liability,
Dispute Resolution, Indemnification of EPA, and Claims
Against the Fund. (Suggested language is provided in the
report).
Finding 6; EPA should begin a dialogue with industry concerning
cleanup standards. There is uncertainty on the part of EPA and
private parties as to what the SARA provisions require and how
they will be implemented. Without clarification, settlements
will be difficult and sometimes impossible.
Recommendation 1: EPA should recognize that in certain
instances complete cleanup may not be appropriate. At some
sites, it may be appropriate to implement an interim
measure, review the site periodically, and require cleanup(
in the future if it becomes necessary or a new technology
becomes available.
Finding 7; The following observations have been made regarding
the EPA oversight process:
o the negotiation environment has become unnecessarily
adverserial;
o there is a lack of consistency in the implementation of
the basic program goals and policies among the Regions;
o some EPA staff are inexperienced and lack the
background to monitor contracts or evaluate cleanup
proposals made by contractors or PRPs;
o turnover rate of EPA personnel is excessive and
exacerbates oversight problems; and,
o EPA is too dependent on contractors.
Reconandation 1: EPA should only undertake cleanups where
there are no PRPs who are willing or able to undertake
cleanups.
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Recommendation 2: EPA staff needs to understand that
industry and government must work together to clean up
Superfund sites and that PRPs are willing and eager to work
constructively with EPA, if given the opportunity.
Recommendation 3: Personnel require training to be able to
negotiate with PRPs, negotiation should be courteous and
professional, and once trained, personnel should be given
the authority to strike compromises to promote settlements
which are fair to all involved and are consistent with
guidance from HQ.
Recommendation 4: EPA should channel resources to oversight
of PRP contractors rather than hiring additional contractors
to perform the same work.
Recommendation 5: EPA needs to develop incentives for its
engineers and technical staff to remain with the Agency for
several years. EPA might consider requiring multi-year
contracts, or increasing pay. -v
INTERNAL; ENVIRONMENTAL PROTECTION AGENCY fEPAi
Office of Research and Development (ORD)
23. "Superfund Outreach," EPA, Office of Research and
Development (ORD), December 28, 1988.
No recommendations specific to enforcement were included.
Office of Inspector General (OI6) ^
24. "Report of Audit: Review of Region Ill's Management of the
Technical Assistance Team (TAT) Services," OIG, September
1988.
No recommendations specific to enforcement were included.
25. "Report of Audit: Review of Region IV's Management of
Significant Superfund Removal Actions," OIG, September 1988.
The objective of this Office of the Inspector General (OIG)
report was to evaluate Region IV's effectiveness and efficiency
in managing significant (cost over $1 million) Superfund removal
actions at the Peak Oil site, near Tampa, Florida and the General
Refining site, near Savannah, Georgia. The one principal
"finding" concerning enforcement was that the EPA did not take
adequate action to pursue a
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responsible party cleanup for the General Refining site. Region
IV disagreed and provided extensive comment.
26. "Audit of EPA's Planning, Negotiating, Awarding, and
Administering of Emergency Response Cleanup Services
Contracts," OIG, September 1986.
No recommendation specific to enforcement were included.
27. "Report of Audit on EPA's Utilization of the Zone I Field
Investigation Team," OIG, July 1988.
No recommendation specific to enforcement were included.
•r
28. "Capping Report on State Performance," OIG, 1988.
The purpose of the report is to inform senior EPA management
officials of the recurring problems identified in cooperative
agreement audits, and to recommend actions or policy changes to
alleviate the problems. The one major issue concerning
enforcement is that EPA Regions were not effectively performing
their oversight responsibilities of the Superfund cooperative v
agreements which contributed to delays in performing goals and
objectives and could adversely affect cost recovery efforts.
29. "General Report on CERCLIS," OIG, 1987.
No recommendations specific to enforcement were included.
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APPENIDSX C
ACRONYMS
AO: Administrative Order (Either Unilateral or on Consent)
AOC: Administrative Order on Consent (Consent Administrative
Order)
CERCLA: Comprehensive Environmental Response/ Compensation and
Liability Act of 1980
ESO: Environmental Services Division
FAR: Federal Acquisition Regulations
FS: Feasibility Study
IA6: Inter Agency Agreement
IFMS: Integrated Financial Management System
NEAR: Non-binding Allocation of Responsibility
NCP: National Contingency Plan
NPL: National Priorities List
OSC: On-Scene Coordinator
PRP: Potentially Responsible Party
ROD: Record of Decision
RA: Remedial Action
RD: Remedial Design
RI: Remedial Investigation
RPM: Remedial Project Manager
SARA: Superfund Amendments and Reauthorization Act of 1986
SCAP: Superfund Comprehensive Accomplishments Plan
SPMS: Strategic Planning Management System
STARS: Superfund Transactions Automated Retrieval System
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TAG: Technical Assistance Grants
UAO: Unilateral Administrative Order
OFFICES OF THE SUPERFUND ENFORCEMENT PROCESS
DOJ: Department of Justice
OC: Office of the Comptroller, OARM
OECM: Office of Enforcement and Compliance Monitoring
OERR: Office of Emergency and Remedial Response, OSWER
OGC: Office of General Counsel
ORC: Office of Regional Counsel, Regions I-X
OWPE: Office of Waste Programs Enforcement, OSWER
OSWER: Office of Solid Waste and Emergency Response
OARM: Office of Administration and Resources Management
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