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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
January 29, 2003
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
OSWER 9355.0-88
MEMORANDUM
SUBJECT: Process of Handling Appeals of Permanent Relocation
Claim Decisions
FROM: Michael B. Cook, Director /s/
Office of Emergency and Remedial Response
TO: Superfund National Policy Managers, Regions 1-10
Purpose
This memorandum explains the process the U.S. Environmental
Protection Agency (EPA) will use when a person or business being
permanently relocated appeals a claim decision made by the U.S.
Army Corps of Engineers (USAGE)on behalf of EPA. This process
does not change any legal rights or responsibilities of those
being relocated.
Background
The USAGE often serves as EPA's agent for permanent
relocations at Superfund cleanups. In this capacity, USAGE has
the lead for working with residents and businesses in planning
and implementing their relocations. USAGE does this work under
the Uniform Relocation Assistance and Real Property Acquisition
Policies Act (42 U.S.C. Section 4601)and its implementing
regulations (49 CFR Part 24). Although USAGE is committed to
ensuring the prompt, fair and reasonable treatment of those being
displaced, from time to time, someone being relocated may want to
appeal a claim decision. USAGE will explain in writing the right
of appeal and the procedures for doing it to all affected
individuals at the outset of a relocation discussion.
Implementation
The following steps explain the claim appeals process that
EPA and USAGE will use during permanent relocations. Both
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organizations have worked closely together to develop it.
1. When either the USAGE realty specialist (RS) or EP
remedial project manager (RPM) learns that someone is not
satisfied with a relocation decision and is considering filing an
appeal, that RS or RPM will inform his/her counterpart. They
will then work together to understand the potential appellant's
concerns and attempt to resolve them to the satisfaction of all
parties.
2. If the matter cannot be resolved informally, the
dissatisfied party may submit a written appeal of the decision to
USAGE. Upon receipt of an appeal, USAGE will write to the
appellant, 1) acknowledging receipt of the appeal, 2) explaining
how long the appeal process takes and who has the final decision
authority, and 3) providing USAGE and EPA contact names and
numbers for follow-up inquiries. USAGE will immediately inform
the EPA Region that an appeal has been received. The Region will
relay this notification to the Director of the Office of
Emergency and Remedial Response (OERR). This notification will
include the name of the appellant and a description of the issues
being contested.
3.- USAGE will use its internal process to review the merits of
the appeal. If at any time during this review, USAGE decides the
appeal has merit and the original District decision should be
overturned, that determination will be conveyed to the EPA
Region. If the Region agrees with the determination to overturn
the original District decision, the Region and the USAGE will
decide who will notify the appellant, in writing, that the appeal
has been approved. If the Region does not agree with the
determination to overturn the original District decision, USAGE
will transmit a report of its findings and determination to the
EPA as described in paragraph 4.
4. If either of the following occurs, 1) USAGE determines the
original District decision should not be overturned, or 2) the
Region does not agree with a USAGE determination to overturn,
then USAGE will submit a report, containing its recommendation on
the disposition of the appeal, to the Director of OERR. USAGE
should submit this report no later than 120 days from its receipt
of the written appeal. In the report, USAGE will summarize the
basis for its recommendation. This will include:
A) a description of the original relocation decision;
B) copies of all of the relevant appellant's documentation;
C) copies of USAGE'S internal reports; and
D) an evaluation of the legal and/or technical merits of the
appellant's case.
5. When an appeal report from USAGE is received in OERR, it
will be given a controlled correspondence number and assigned for
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coordination. The coordinator will immediately forward a copy to
the Office of General Counsel (OGC) for review and comment.
While OGC is reviewing the appeal, the coordinator will conduct
an assessment of the merits of the appeal. This will include
working with appropriate OERR staff and the Region. The
coordinator also will schedule a briefing with the OERR Director
for a time shortly after the OGC comments are due.
6. OGC will have thirty (30) days from the time the report is
forwarded by OERR to review the USAGE report, conduct its legal
analysis of the situation, and provide to the OERR coordinator
its advice on granting or denying the appeal.
7. Within ten (10) days of being briefed on the situation, the
Director of OERR will use the USAGE report, along with the input
provided by the coordinator, OGC, and others, as necessary, to
make a final Agency determination on the appeal.
8. The Director will convey the determination to the appellant
via certified mail, with copies of this letter to the Region, the
USAGE District RS, USAGE Directorate of Real Estate and EPA OGC.
Conclusion
Our goal should be to conduct permanent relocations in an
open, customer service oriented fashion. Such an approach will
help to minimize the stress and disruption of those being
relocated. In those instances where there is a disagreement,
every effort should be made to resolve the concern as quickly and
at the lowest level possible. When a formal appeal of a
relocation decision is made, all of those who have
responsibility, as outlined in this directive, should work
diligently to bring it to a timely conclusion. If you have any
questions about this directive, please contact Terri Johnson
(703-603-8718) or Bruce Engelbert (703-603-8711).
cc: Willie Patterson, USAGE
Priscilla Paige, USAGE
Phyllis Clarke, USAGE
Patricia Rivers, USAGE
Kip R. Huston, USAGE
Marianne Horinko, OSWER
Susan Bromm, OSRE
Robert Springer, OSW
Regional Counsels, Regions 1-10
Stephen Hess, OGC
OERR CDs/SPMs
Joanna Gibson, OERR
Nancy Riveland, Superfund Lead Region Coordinator
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