&EPA
United States Office of Solid Waste
Environmental Protection and Emergency Response
Agency (OS-500)
May 1993
Enforcement Project
Management
Handbook
Printed on Recycled Paper
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 6 1993 OFF.CEOF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Transmittal of the FY 1993 Update of the Enforcement
Project Management Handbook.
FROM: Bruce M. Diamond, Director
Office of Waste Programs Enforcement
TO: Distribution
This memorandum transmits the FY 1993 update of the
Enforcement Project Management Handbook to Headquarters and
Regional offices. This updated version of the Handbook supersedes
the one published in January 1991.
The Handbook is intended to be a basic reference and training
manual to assist Remedial Project Managers (RPMs) and On-Scene
Coordinators (OSCs) in planning, negotiating, and managing
Potentially Responsible Party (PRP) searches and PRP-lead actions.
It provides an overview of each phase of the enforcement process
and discusses specific roles and responsibilities of the RPM/OSC in
the process.
Procedures and information contained in this document are
based on existing and draft EPA policy and guidance. Specific
documents are referenced as sources of additional information on
particular topics.
For additional information on the Handbook or to obtain extra
copies, contact Monica Gardner in the Contracts and Planning Branch
of the CERCLA Enforcement Division at 703-603-8987.
Attachment
Printed on Recycled Paper
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Disclaimer
The policies and procedures established in this document are intended solely for the
guidance of employees of the U.S. Environmental Protection Agency. They are not
intended and cannot be relied upon to create any rights, substantive or procedural, enforce-
able by any party in litigation with the United States. EPA reserves the right to act at
variance with these policies and procedures and to change them at any time without public
notice.
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Acknowledgments
Tliis document was prepared by the Contracts and Planning Branch of die CERCLA
Enforcement Division in EPA's Office of Waste Programs Enforcement. Monica Gardner
and Debby Thomas served as EPA's Project Coordinators.
The following people provided significant input in the development or review of specific
chapters:
EPA Headquarters
Jan Baker, Frank Biros, Nellie Boone, Linda Boornazian, Patty Bubar, Susan Cange,
Carrie Capuco, Matt Charsky, Paul Connor, Walter DeRieux, Dan Dickson, Tony
Diecidue, Allen Dotson, Bill Eckroade, Steve Ells, Frank Finamore, Donna Gerst, Bruce
Gruenewald, Ed Hanlon, Jeff Heimerman, Johanna Hunter, Lee Jennings, Sven-Eric
Kaiser, Randy Kaltreider, Julie Klaas, Emil Kiiutti, Jerry Lappan, Debbie Lebow, Marlene
Lernro, Rashalee Levin, Charles Openchowski, Dottie Pipkin, Rick Popino, Lynda Priddy,
Doug Samo, Fred Seitz, Betsy Shaw, Sherry Sterling, Steve Suprun, Debbie Swichkow,
Candace Wingfield, Jim Woolford. Brad Wright, Renee Wynn, and Betty Zeller.
In addition, the following staff participated in the FY 1993 update: Peg Andrews, Mark
Badalamente, David Batson, Gerry Breton, Lori Boughton. Maria Bywater, Tai-ming
Chang, Rick Colbert, Schatzi Fitz-James, Sharon Frey, Joanne Griffith, Lisa Harris, Rose
Harvell, Tracy Hopkins, Lisa Jenkins, Kurt Lamber, Chad Littleton, Michael Miller, Matt
Morrison, Ken Patterson, Bruce Pumphery, Dave Reynolds, Robin Richardson, Bill Ross,
Neilima Senjalia, Cecilia Smith, Greg Synder, Joe Tieger, Luis Troche, Gary Worthman,
and Fred Zimmerman.
EPA Regional Offices
Mike Bishop, Robin Coursen. Jody Crane, David Duster, D. Henry Elsen, Elizabeth
Evans, Eric Finke, Barbara Hanson, Stan Hitt, Rick Karl, Lynn Kersher, Sharon Kersher,
Katliy Land, Barry Levine, Carole Macy, Sam Marquery, Sharon Metcalf, Elizabeth
Mullin, Doug Mundrick, Carole Peterson, Greg Phoebe, Peter Shaw, Kathleen Siftar,
Alexis Struass, Ami Umphres, Sam Vance, Ann Vogel, Ken Wallace, and Carrie Wheling.
In addition. Region I staff, notably Ira Leighton, Dennis Hubner and Susan Siversky,
produced a two-volume manual entitled Enforcement and Remedial Activities under SARA
which was used as a model for several sections of this handbook.
The Lead Region Removal Workgroup provided comments for the FY 1993 update.
Department of Justice (DOJ)
Anna Swerdel coordinated the review and comment process at DOJ. For die FY 1993
update, Christine Skelley provided comments.
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ENFORCEMENT PROJECT MANAGEMENT HANDBOOK
Contents
Acronyms and Abbreviations
i. Preface
I. Introduction
II. Removals
III. Comprehensive Site Planning
IV. PRP Search, Notification, and Information Exchange
V. RI/FS Negotiations/Settlements
VI. RI/FS Implementation
VII. Selection of Remedy
VIII. RD/RA Negotiations/Settlement
IX. RD/RA Implementation
X. Operation and Maintenance
XI. Site Completion/Deletion
XII. Cost Recovery
XIII. Community Relations
XIV. State Enforcement
XV. Records Management
XVI. Case Budget/Contracts
XVII. SCAP/STARS Cycle
Glossary
Index
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Acronyms and Abbreviations
A
AA. OSWER
AAG
ADR
AO
AOA
AOC
AR
ARARs
ARCS
ATSDR
B
BODR
BUREC
c
CA
CB
CD
CEAT
CERCLIS/
WasteLAN
CI
CLP
CPM
CRC
CRC
CRI
CRP
CWA
D
DOI
DOJ
DQO
E
EA
EE/CA
AssisUuit Administrator for Solid Waste and Emergency Response
Assistant Attorney General
Alternative Dispute Resolution
Administrative Order
Advice of Allowance
Administrative Order on Consent
Administrative Record
Apph'cable or Relevant and Appropriate Requirements
Alternative Remedial Contracts Strategy
Agency for Toxic Substances and Disease Registry
Basis of Design Report
Bureau of Reclamation
Cooperative Agreement
Case Budget
Consent Decree
Contract Evidence Audit Team
Comprehensive Environmental Response, Compensation, and Liability
Information System/Waste Local Area Network
Civil Investigator
Contract Laboratory Program
Critical Path Method
Community Relations Coordinator
Cost Recovery Coordinator
Community Relations Implementation
Community Relations Plan
Clean Water Act
Department of the Interior
Department of Justice
Data Quality Objective
Endangennent Assessment
Engineering Evaluation/Cost Analysis
Acronyms and Abbreviations—I
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EERU
EES
EMSL
EPCRA
EPIC
EPM
ERNS
ERS
ESD
ESD
Environmental Emergency Response Unit
Environmental Enforcement Support
Environmental Monitoring and Systems Laboratory
Emergency Planning and Community Right-to-Know Act
Environmental Photographic and Investigation Center
Enforcement Project Manager
Emergency Response Notification System
Environmental Response Services
Environmental Services Division
Explanation of Significant Difference
FIT
FMD
FMO
FR
FSP
FTE
G
GFO
GNL
H
HQ-FMO
MRS
HSCD
I
IAG
IDC
IFMS
IMC
L
LOE
LTRA
M
MSW
Field Investigation Team
Financial Management Division
Financial Management Office
Federal Register
Field Sampling Plan
Full-Tune Equivalent
Good Faith Offer
General Notice Letter
Headquarters - Financial Management Office
Hazard Ranking System
Hazardous Site Control Division
Inter-Agency Agreement
Indirect Cost
Integrated Financial Management System
Information Management Coordinator
Level of Effort
Long-Tenn Response Action
Municipal Solid Waste
2-Acronyms and Abbreviations
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N
NEAR
NCP
NEIC
NOAA
NPL
NRC
NSD
Non-Binding Preliminary Allocation of Responsibility
National Contingency Plan
National Enforcement Investigation Center
National Oceanic and Atmospheric Administration
National Priorities List
National Response Center
Negotiation Support Document
O&F
O&M
OE
OERR
OGC
OIRM
OMB
OMSE
ORC
OSC
OU
OWPE
P
PDD
PNRS
PRP
Q
QA/QC
QAPP
QAPP/FSP
R
RA
RCRA
RD
RDT
Rl/FS
ROD
RP
RRT
Operational and Functional
Operation and Maintenance
Office of Enforcement
Office of Emergency and Remedied Response
Office of General Counsel
Office of Information Resources Management
Office of Management and Budget
Office of Management Systems and Evaluation
Office of Regional Counsel
On-Scene Coordinator
Operable Unit
Office of Waste Programs Enforcement
Preauthorization Decision Document
Preliminary Natural Resource Surveys
Potentially Responsible Party
Quality Assurance/Quality Control
Quality Assurance Project Plan
Quality Assurance Project Plan/Field Sampling Plan
Remedial Action
Resource Conservation and Recovery Act
Remedial Design
Regional Decision Team
Remedial Investigation/Feasibility Study
Record of Decision
Responsible Party
Regional Response Team
Acronyms and Abbreviations—3
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s
SACM
SAIC
SAP
SARA
SCAP
SCORES
SE
SEAM
SETS
SMOA
SMP
SNL
SOL
SOW
SPO
SPUR
STARS
START
T
TAG
TAT
TBC
TBD
TDD
TDD-AOC
TES
TESWATS
TSC
TSCA
TST
u
UAO
USAGE
USCG
w
WAM
Superfund Accelerated Cleanup Model
Special-Agent-In-Charge
Sampling and Analysis Plan
Superfund Amendments and Reauthorization Act
Superfund Comprehensive Accomplishments Plan
Superfund Cost Organization and Recovery Enhancement System
State Enforcement
Superfund Exposure Assessment Manual
Superfund Enforcement Tracking System
Superfund Memorandum of Agreement
Site Management Plan
Special Notice Letter
Statute of Limitations
Statement of Work
State Project Officer
Software Package for Unique Reports
Strategic Targeting Activities Reporting System
Superfund Technical Assessment and Response Team
Technical Assistance Grant
Technical Assistance Team
To-Be-Considered Material
To Be Determined
Technical Directive Document
Technical Directive Document - Acknowledgement of Completion
Technical Enforcement Support
Technical Enforcement Suppport Work Assignment Tracking System
Transportation Systems Center
Toxic Substances Control Act
Technical Support Team
Unilateral Administrative Order
U.S. Army Corp of Engineers
United States Coast Guard
Work Assignment Manager
4—Acronyms and Abbreviations
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PREFACE
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Preface
OV6rVJ6W ^'s handbook has been prepared primarily to assist EPA Remedial Project Managers
(RPMs) in planning, negotiating, and managing PRP-lead actions. However, other field
personnel such as On-Scene Coordinators (OSCs) may also find the handbook useful tor
their purposes. It describes the roles and responsibilities of the RPM in identifying and
communicating with Potentially Responsible Parties (PRPs); coordinating with the
community, States, and natural resource trustees; negotiating for site cleanup; initiating
administrative and judicial enforcement actions; selecting site remedies; recovering EPA's
cleanup costs; and overseeing PRP-lead response actions. The description of roles and
responsibilities is based on the usual progression of events at an average site. The hand-
book is also meant to complement EPA's Superfund Federal-Lead Remedial Project
Management Handbook and Superfund State-Lead Remedial Project Management Hand-
book by serving as a reference guide on enforcement actions that may he taken or consid-
ered during each step of the removal and remedial processes.
Policies and Guidance
Procedures and information contained in this document are based on existing, draft, and, in
some cases, proposed EPA policy and guidance. The handbook, however, is not intended
to replace Agency guidance; nor is it intended to stand alone. Instead, the chapters that
follow summarize in a single document information concerning EPA's national enforce-
ment program and the role of RPMs/OSCs in that program. The reader should bear in
mind that to keep this document to a moderate length, some oversimplification was
necessary. Throughout the handbook, the reader is referred to specific, detailed policies
and procedures. As appropriate, the reader should use these references to supplement the
information presented in this handbook.
Role of RPMs
The emphasis of mis handbook is on the role of the RPM in the enforcement process. It is
recognized, however, that Regional differences exist in defining that role. For example, in
many Regions, cost recovery activities are handled by staff without remedial project
management responsibilities. Therefore, when the term "RPM" is used in this handbook
in connection with specific activities, the reader should bear in mind that these activities
are ones for which the RPM may be responsible. RPMs should coasult with Regional
management on the scope of their specific responsibilities.
Structure The handbook addresses the removal enforcement process and the phases of the remedial
planning and implementation process from the point of the baseline PRP search, which is
generally conducted when the site is listed on the NPL or when the region determines dial
a response action may be warranted, to the point of completion of remedial activity at a
site and the site'5 deletion from the NPL. The handbook has been organized to follow the
overall progression of these phases.
In addition to chapters that discuss the various phases of the remedial process, the hand-
book includes eight additional chapters and an introduction. The additional chapters
present enforcement topics that either are not a part of the remedial process or are relevant
to many steps in the process. These chapters cover enforcement activities associated with
cost recovery, community relations. State enforcement, records management, case budget
and contracts, and the SCAP/STARS cycle and CERCLIS/WasteLAN.
Preface-l
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ForfT13t The chapters are organized to provide a description of the phase of site cleanup or specific
enforcement activity; a chronology of procedures for which the RPM has responsibility;
associated planning and reporting requirements; a discussion of potential problems and
possible resolutions; and a reference section, which lists titles of relevant policies and
guidance documents, and contacts for further information. This organization of informa-
tion facilitates a pro-active management style of anticipating and resolving problems
before they adversely impact project costs, schedules, or technical quality.
ADOlicabilitV Although the handbook is designed for both new RPMs and RPMs who have experience
with the enforcement program, it is hoped that it will also help clarify for other EPA
personnel the many technical, enforcement, and management tasks required to complete a
PRP-lead site. This handbook is for internal EPA use only. It does not create rights in any
party and may not be quoted as an authoritative source by any PRP.
2-Preface
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I. INTRODUCTION
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Introduction
This introduction provides a broad overview of the Superfund enforcement program. The
chapter is divided into five major sections:
* Goals
* Background
* Overview
* Players
* Additional Enforcement Resources
Each of these is presented below.
Section I. Goals of the Enforcement Program
The overall goal of the Superfund program is to protect human health and the environment
through timely and effective site remediation at the maximum number of sites. Enforce-
ment plays a major role in the process.
Obtaining PRP
Response
A primary goal of the enforcement program is to obtain voluntary settlement, or if neces-
sary, to compel Potentially Responsible Parties (PRPs) to implement site cleanups. The
primary tools used to meet this goal are the administrative order and judicial enforcement
authorities of section 106 of the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) and the settlement provisions of section 122. These authori-
ties are discussed in more detail in Chapter V, Rl/FS Negotiations and Chapter VIII, RD/
RA Negotiations.
Overseeing PRP
Response
Once the PRP has agreed to take response actions at a site, the goal of the enforcement
program is to ensure that the studies or cleanup activities are performed correctly and in
accordance with the order or decree, and the statute, NCP and relevant guidance. In
addition to their oversight, Remedial Project Managers (RPMs) use the authority in section
104 of CERCLA for third party oversight of PRP-conducted Rl/FS activities to ensure that
this goal is met. Oversight responsibilities are discussed in Chapter II, Removals; Chapter
VI, Rl/FS Implementation; and Chapter IX, RD/RA Implementation.
Recovering EPA's
Costs
In situations in which EPA has performed removal or remedial activities at the site or
incurred any enforcement costs, the enforcement program's goal is to recover those costs
from the PRPs. Cost recovery actions are essential both to replenish the Fund and to deter
other PRPs from trying to avoid responsibility for performing response actions themselves.
The authority for recovering costs is provided by section 107 of CERCLA. Cost recovery
is discussed further in Chapter XII, Cost Recovery.
Expediting the Process
In an effort to make Superfund cleanups more timely and efficient, EPA developed the
Superfund Accelerated Cleanup Model (SACM). SACM will facilitate more focus on the
front end of the cleanup process and better integration of all Superfund program compo-
nents. Implementation of SACM will be consistent with the NCP and CERCLA. SACM
is discussed in more detail in Chapter III, Comprehensive Site Planning.
Introduction—1
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Section II. Programmatic Background
CERCLA gives EPA a broad set of tools with which to clean up hazardous waste sites.
These include a variety of enforcement tools, such as administrative order authority,
judicial enforcement authority, strong liability provisions, and the authority and funding to
take direct action to clean up sites.
LiabilltV Section 107 of CERCLA outlines the basic liability provisions of the enforcement pro-
gram. It identifies four classes of PRPs:
* Current facility owners and operators
* Past facility owners and operators at die time of disposal of a hazardous substance
* Persons who arranged for treatment or disposal of hazardous substances (e.g.,
generators)
* Transporters of hazardous substances who selected the disposal site.
CERCLA is a strict liability statute, which means that PRPs are liable without regard to
negligence or fault. In addition, the courts have held that anyone in the classes of liable
persons set forth in section 107 of CERCLA may be held liable for the entire cost of site
cleanup, unless it can be shown that the harm or threat is "divisible" (generally meaning
mat there are two or more physically separate areas of contamination). This concept,
known as "joint and several liability," is a strong tool that EPA can use to encourage PRPs
to agree to perform cleanups. It is discussed in more detail in Chapter IV, PRP Search,
Notification, and Information Exchange, and Chapter XII, Cost Recovery.
Settlement and
Enforcement
Provisions
CERCLA provides a broad range of enforcement authorities or provisions that EPA can
use to effectively meet the goals of the Superfund program. These include authorities to
order PRPs to clean up sites, to negotiate settlements with PRPs to fund and/or perform
site cleanup, and to take legal action if the PRPs do not perform and/or pay for cleanup.
Settlements for removals are usually finalized by administrative orders on consent (consent
orders). Similarly, settlements for RI/FS are generally by consent orders. Settlement}; for
RD/RA are more complex and are set forth in consent decrees that must be approved by
the Department of Justice and a court.
Under CERCLA, EPA may use a variety of special settlement tools. In mixed funding
settlements, settling PRPs and EPA contribute to the response action and EPA generally
pursues viable non-settlors for the costs EPA incurred. In de minimis settlements, EPA
may settle with relatively minor contributors when the settlement involves only a minor
portion of the response costs and when the amount of waste represents a relatively minor
amount and is not highly toxic compared to other substances at the facility. Additionally,
EPA is authorized to utilize preliminary Non-binding Allocations of Responsibility
(NBARs) to promote settlement. NBARs represent a recommended scheme for allocating
costs among the PRPs for settlement purposes only, are not binding, and cannot be admit-
ted as evidence in court. These settlement tools are discussed fully hi Chapter V, RI/FS
Negotiations and Chapter VIII, RD/RA Negotiations.
Enforcement Authority
If the PRPs do not settle with EPA, section 106 of CERCLA gives the Agency the author-
ity to unilaterally order the PRPs to conduct the response, hi addition, with the assistance
of the Department of Justice, EPA may sue the PRPs for a court order under section 106
that requires the PRPs to perform the cleanup. Under section 107, EPA may sue PRPs for
cost recovery. These authorities are discussed further in Chapter VIII, RD/RA Negotia-
tions, and Chapter XII, Cost Recovery.
^-Introduction
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Other StdtUtGS m addition to the authorities provided by CERCLA, the Agency may, in some instances,
use authorities provided by other environmental laws (although the applicability of each of
these other laws is subject to specific legal requirements which are beyond the scope of
tliis handbook). For example, under the Resource Conservation and Recovery Act
(RCRA), the Agency can order owners and operators of operating and closing hazardous
waste facilities to investigate any potential leaks and to clean up the facility if necessary.
The Toxic Substances Control Act (TSCA) and its regulations can be used by the Agency
to impose conditions on the handling of particularly hazardous substances, such as asbes-
tos and PCBs. In addition, in some cases where releases affect surface waters, the provi-
sions of the Clean Water Act (CWA) can be used to impose fines and require cleanup.
These other statutes also provide the basis for many of the applicable and relevant and
appropriate standards (ARARs) on which cleanup levels are based in site records of
decision. ARARs also are mentioned in Chapter VII, Selection of Remedy.
DiSDUtG ^ne Administrative Dispute Resolution (ADR) Act, passed in 1990, explicitly authorizes
Q ... . . and encourages all federal agencies to use alternative dispute resolution (ADR) techniques
KeSOIUtlOn ACl t() assist in Uie resoiutjon Of federal disputes.
Primary types of ADR identified as potentially useful in EPA matters include:
* Mediation - Use of a neutral with no decision-making authority to aid the parties in
their negotiations. Tliis method is nonbinding.
* Settlement Judge - Use of a judge other than the one hearing the case to act as mediator
of parties' settlement discussions; usually gives his/her opinion as to the probable
outcome of the case.
* Neutral Evaluation - Use of a neutral to assist a negotiations team in evaluating the
potential for settlement and/or use of ADR professionals.
* Fact-finding - Use of a neutral with substance-specific experience to resolve technical
or factual issues. Can be done either in an investigatory or arbitration format. Can be
binding or advisory.
* Arbitration - Similar to mediation although it can be binding or advisory. A judicial-
type setting where the parties choose the arbitrator for his/her experience in the subject
matter. Arbitrations are more streamlined in terms of procedures and evidence
requirements than court.
+ Minitrial - Use of a structured presentation of each party's case to a panel of party
decision-makers before a neutral "judicial officer" so as to expedite settlement
discussions.
The Office of Enforcement has dedicated staff to assist Regional offices, the Department
of Justice, and members of the regulated community toward the goal of making the
consideration and appropriate use of ADR techniques standard operating procedures in all
Agency enforcement actions. OE offers training to Agency and DOJ staff; publication of a
quarterly report on Agency ADR activities; assistance in reviewing case files for appropri-
ate ADR actions; locating appropriate ADR professionals and preparing required procure-
ment documents; and payment of government expenses related to Superfund ADR use.
The ADR mechanism of primary use in regional enforcement actions is mediation. The
use of mediation has proven extremely helpful in decreasing Regional resources required
to obtain Superfund cost recovery and RD/RA settlements. To ensure that mediation is
used where possible, several Regional offices have established procedures which ensure
that each Superfund enforcement action is reviewed for potential ADR assistance. Media-
tion has been discussed with settling parties in more than fifty enforcement actions and
used in thirty. Mediation has been or is being used to facilitate many difficult settlements,
including cost recovery and remedial actions in excess of $200 million and with more than
1,600 parties and actions with states and municipal parties.
lntroducthn-3
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In an effort to institutionalize die use of ADR, credit for its use has been specifically
included in Agency management performance tracking systems. In the enforcement
program, efforts are underway to provide equal status to the initiation of mediation or
arbitration relative to that given for the initiation of legal action.
For more information, contact David Batson, ADR Liaison, at 202-260-8173.
has committed to several deadlines for construction completion. These deadlines
include:
* 1 30 construction completions by the end of FY 92 (this has been exceeded)
* 200 construction completions by the end of FY 93
* 650 construction completions by the year 2000.
Because funding for EPA cleanups is limited, the Agency cannot meet these goals with
Fund-lead cleanups alone. Thus, the enforcement program must ensure that PRPs commit
to perform cleanups at a substantial portion of sites. If planned properly, negotiated
settlements do not take longer to implement than Fund-lead activity; the key elements are
good planning and effective deadline management.
The enforcement authorities provided by CERCLA offer a strong incentive to PRPs to
settle with EPA. Settlement may be a faster and less-costly alternative to litigation and can
alleviate the risk to the PRPs of becoming involved in costly litigation or being assessed
treble damages.
4—Introduction
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Section III. Overview of the Process
The Superfund program involves an integrated process of both enforcement and Fund-
financed activities aimed at achieving the overall goal of site cleanup. Exhibit 1-1 presents
a broad overview of the relationships between the various enforcement and Fund-financed
activities. In general, EPA identifies PRPs that may be liable for site response, attempts to
negotiate agreements with the PRPs to perform the studies or cleanup, enters into settle-
ments with the PRPs if they agree, and oversees the site work that the PRPs perform under
the settlement. If the PRPs do not settle, EPA may issue an order or sue the PRPs to
perform and/or pay for the cleanup, or EPA may conduct the cleanup itself and later
pursue cost recovery from the PRPs. Each of these steps is discussed briefly below and in
more detail in the chapters that follow.
PRP Searches When a site is proposed for listing on the NPL or as soon as the Region decides that a
response action is likely to be required at the site. EPA initiates a PRP search to identify
any companies or individuals that may be liable for the costs of cleaning up the site. In
addition to the RPM and contractors, the PRP search also may involve civil investigators
and Office of Regional Counsel. The search involves detailed reviews of State, EPA and
site records; interviews with site operators and transporters; and requests for information
from those who may have been involved with the site. The PRPs that are identified by this
process are then notified of their potential liability and are informed that they will have the
opportunity to negotiate with EPA to conduct site cleanup. Chapter IV, PRP Identifica-
tion/Notification, contains a detailed description of the PRP search process.
Negotiations Formal negotiations with PRPs usually begin at two stages in the cleanup process; before
the Remedial Investigation/Feasibility Study (RI/FS) and after EPA releases the Proposed
Plan for public comment, or generally no later than when EPA signs the Record Of
Decision (ROD). The purpose of these negotiations is to reach agreement that the PRPs
will perform the RI/FS or the Remedial Design/Remedial Action (RD/RA) and pay past
costs. During the course of negotiations, EPA and the PRPs exchange information oirsite
conditions, the PRP's liability, past costs, and the nature of the work that will be required.
Based on this information, EPA and the PRPs try to reach an agreement that the PRPs will
both finance and conduct the work. If no agreement is reached, EPA may (1) issue an
order to compel the PRPs to do the work, (2) sue the PRPs to require them to perform the
work, and/or (3) use Federal funds to perform the work and seek to recover its costs later.
The negotiation process is described in detail in Chapter V, RI/FS Negotiations, and
Chapter VIII, RD/RA Negotiations.
SGttlGniGntS If negotiations are successful, EPA and the PRPs must sign a legal document that sets
forth the requirements for cleanup. If the work required is mi RI/FS, an RD, or a removal
action, EPA and the PRPs usually use an Administrative Order on Consent (AOC). An
AOC is a legally-binding administrative document, authorized by CERCLA, that EPA and
the PRPs both sign. Although a judicial Consent Decree (CD) may be executed, CDs are
not the preferred mechanism for RI/FS or removal actions because administrative settle-
ments may be processed more quickly. A CD is similar to an AOC, except that it is a
judicial action which must be filed in court and be approved by a judge before it becomes
final. If the settlement between EPA and the PRPs includes an RA, that settlement must
be in the form of a consent decree. These settlement devices are discussed in Chapter V,
RI/FS Negotiations and Chapter VIII, RD/RA Negotiations.
Introduction—S
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Oversight Once me ^OC or CD takes effect, the PRPs can begin work at the site. In the case of RD
settlements, PRPs may begin work at the site before the CD is entered. EPA closely
monitors all work at the site. This monitoring may include on-site examination of the
PRPs or their contractors, review of all reports, and parallel sampling and analysis to
ensure accuracy. Under CERCLA, the PRPs must agree to pay for EPA's RI/FS oversight
expeases as part of the settlement. EPA also generally requires reimbursement of over-
sight costs for removals and RD/RAs. Chapter VI, RI/FS Implementation, describes the
oversight process for RI/FSs, and Chapter IX, RD/RA Implementation, discusses the
process as it relates to RD/RAs.
Cost RfiCOVGCV ^ negotiations with the PRPs are not successful, EPA can choose to perform the work and
seek to recover its costs later. To recover its costs, EPA usually issues a demand letter,
and if the PRPs do not reimburse EPA's costs, EPA refers a judicial action to the Depart-
ment of Justice (DOJ) to bear upon the PRPs. If less than a total of $500,000 in response
costs is involved at a facility, EPA can settle with the PRPs directly using an administra-
tive order. If more than a total of $500,000 in response costs is involved at a facility,
written approval of the Attorney General is required and EPA may have to take judicial
action to settle the case. The cost recovery process is described further in Chapter XII,
Cost Recovery.
^acn CERCLA site is unique, and it is difficult to describe a typical site. The timeline in
Exhibit 1-1, however, depicts the general flow of enforcement and response activities at a
CERCLA site. More detailed information on the Agency's expectations about how long
each activity should take are described in the OSWER Superfund Comprehensive Accom-
plishments Plan (SCAP) manual for the current fiscal year. The time frames described in
that manual represent overall planning goals for die entire Agency. Individual site condi-
tions may lead to longer or shorter durations for each activity. RPMs should refer to both
the SCAP-planning durations and the specific conditions at the site in developing an
overall site management plan. Site planning is discussed in detail in Chapter III, Compre-
hensive Site Planning.
An example of a site that generally followed a common timeline exists in Region III. This
site was proposed for listing on the NPL in October of 1984, the PRP search was com-
pleted in February of 1985, and the site was finalized on the NPL in June of 1986. In May
of 1985, Region III completed unsuccessful negotiations with the PRPs for the RI/FS, and
in June, a Fund-financed RI/FS was initiated for the first operable unit.
In March of 1988, the ROD for the first operable unit RI/FS was signed and RD/RA
negotiations were initiated. Special notice letters were issued on March 29, and negotia-
tions concluded within the 120-day moratorium at the end of July. A consent decree was
agreed upon and was lodged with the court. Following public comment, the decree was
entered in the second quarter of FY 89. The RD was begun in the second quarter of FY 89
and was completed in the fourth quarter of FY 89. The RA was begun in the fourth quarter
of FY 89.
There are four other operable units at the site, which are at various stages of the cleanup
process. In addition to the remedial activity at the site, a removal was performed in
response to emergency conditions. In February of 1985, the Region referred the case to
recover approximately $250,000 for the cost of the removal. The cost recovery case was
settled in May of 1987.
6-Introduction
-------
Section IV. Key Players
The Superfund enforcement program requires close coordination among many different
players within EPA, in other Federal agencies, and in the States. This handbook, however,
focuses mainly on the roles played by teclmical enforcement staff. Although these roles
vary greatly among the Regions, they generally include initiating negotiations, settlements,
and cost recovery actions, and taking the lead in overseeing PRP response actions.
The RPM plays the lead role in planning and coordinating site remediation. To achieve
programmatic objectives, the RPM must have effective plans and be a team builder and
leader. In addition to personnel from Federal agencies and the States, other Regional staff,
such as RPMs managing Fund-lead sites, staff from the Environmental Services Division
(ESD), Community Relations staff, and Office of Regional Counsel (ORC), may play
active roles. In Regions where enforcement and remedial responsibilities are divided,
RPMs on Fund-lead sites may become involved in enforcement activities when the sites
are ready for RD/RA negotiations, or they may become involved in litigation for cost
recovery. Similarly, ESD staff may become involved at a site when the removal program
is in that Division or when sampling and analysis work is required.
Attorneys from ORC act as the Region's primary legal advisors whenever an enforcement
action is taken at a site, in addition to their non-enforcement duties. They often take the
lead in negotiations with PRPs, review information exchanges between EPA and PRPs,
and are the primary communication link between the Agency and die Department of
Justice (DOJ) if EPA sues the PRPs for either site cleanup or cost recovery.
At Headquarters, there are two major offices that participate in the program. Witlu'n
OSWER, OWPE takes the lead in managing the overall enforcement program. This
includes developing budgets and out-year forecasts, managing the SCAP process, develop-
ing policy and guidance, and providing technical assistance and coordination when
necessary. OERR has responsibility for NPL listing and, with regard to Fund-financed
response actions, removal and remedial actions.
In addition to OWPE and OERR within OSWER, OE provides legal advice and coordina-
tion for all formal enforcement actions, with a particular focus on judicial cases. In major
cases, OE reviews case referral packages before they are sent to DOJ. They also comment
on major precedent-setting settlements, as does OWPE.
Other Federal AoendeS In a^^on to Ep^, DOJ is significantly involved in the Superfund enforcement program.
DOJ is involved in any enforcement action that must be filed in court and serves as a
resource in all negotiations that may result in a consent decree. DOJ develops and pre-
sents legal positions that explain the Agency's goals to PRPs and the court and provides
the only communication between EPA and the courts regarding site-specific litigation. In
addition, it is the official representative of EPA in negotiations that take place while a case
is pending before a court. As noted earlier, DOJ must also approve any claim that is
compromised and settled, whether by Consent Decree or by Administrative Order on
Consent, where the total response costs at the site exceed $500,000.
Other Federal agencies, such as the U.S. Coast Guard and the U.S. Army Corps of Engi-
neers, also may become involved in the program when their technical expertise is required.
For example, the Corps has extensive expertise in the management of large-scale construc-
tion projects and, therefore, can be helpful in the management of remedial actions.
Introduction—7
-------
StatGS Tne role °f d16 States in the program is substantial. States usually participate in the ROD
process and may participate in settlement negotiations with PRPs. In addition. States may
take a lead role at a site by negotiating directly with the PRPs and issuing orders under
State legal authority.
N3tural RGSOUrCG ^l m1^ s'te wnere natural resources may have been damaged. EPA must coordinate with
— . the trustee of those resources. The trustee may be a Federal agency, such as the Depart-
I lUSieeS ment Oj.- interior, the National Oceanic and Atmospheric Administration, or the Department
of Agriculture, or it may be a State agency (designated by a governor), or there may be
both Federal and State trustees for the site. EPA notifies natural resource trustees of
settlement negotiations with PRPs and allows trustees to participate in negotiations
regarding matters within their domain.
8-lntroduclion
-------
Section V. Additional Enforcement Resources
This handbook does not address enforcement issues specific to the emergency release
notification provisions of CERCLA section 103 or to Federal Facilities. Available
resources that address these specific issues are briefly highlighted below.
EPCRA ^ detailed discussion of enforcement of CERCLA section 103 and the Emergency Plan-
ning and Community Right-to-Know Act (EPCRA) sections 302-312, which is related to
emergency planning, notification, and rigln-to-know, can be found in the Enforcement
Reference Manual for the Emergency Planning and Community Righl-to-Know Act
(EPCRA) sections 302.303.304.311. and 312. and CERCLA section 103 finalized by
OWPE on August 8,1990. Numerous administrative enforcement actions have already
been brought against companies for failure to report releases in a timely manner. RPMs
and OSCs who are aware of potential violations should contact their Regional EPCRA
enforcement coordinator for further assistance or information.
OPA The Superfund docket retains copies of a periodic publication, Update on Implementation
of the Oil Pollution Act of 1 990 (OPA). An especially helpful overview of the statute and
its implementation by the Agency can be found in OPA Q's & A's: Overview of the Oil
Pollution Act of 1990, December 1991, Publication number 9360.8-OIFS, also available
through the Superfund docket. A number of administrative actions have been brought
seeking the higher penalties available since the enactment of OPA for violatioas of CWA
section 3 1 1 regulations and for prohibited discharges of oil or hazardous substances. Also,
judicial actions proposing millions of dollars in penalties have been initiated for the more
serious violations of CWA section 311.
FdCilitJ6S ^ne Office of Federal Facilities Enforcement in Headquarters has prepared several guid-
ance documents and has developed model provisions for CERCLA Federal Facilities
agreements. A useful reference and guidance document on Federal Facilities is the
Federal Facilities Hazardous Waste Compliance Manual, OSWER Directive 9992.4
(January 9, 1990).
lniroduct'um-9
-------
II. REMOVALS
-------
Chapter I!
Removals
Section I. Description of Activity 1
Introduction 1
Definition 1
Authority 1
Types of Removals 1
Removal Activities 2
Statutory Limitations and Exemptions 2
Administrative Record and Public Participation 3
Written Response 3
Section II. Procedures and Interactions 4
A. PRP Search 4
PRP Response Policy 4
PRP Search Strategy 4
Emergency Situation 4
Time-Critical Situation 4
Non-Time-Critical Situation 5
All Removals 5
PRP Search Completion 5
B. Enforcement and Negotiations Planning 5
Site Lead 5
Enforcement Strategy — Addendum to Action Memo 6
C. PRP Notice 6
Notification in Emergency Situations 7
Notification in Time-Critical Situations 7
Notification in Non-Time-Critical Situations 7
D. AOC Negotiations and UAO Issuance 8
Administrative Orders on Consent (AOC) 8
Unilateral Administrative Orders (UAO) 9
Model UAO and AOC 9
Issuance of UAOs 11
Activation of Fund During AO Issuance 11
Replacement of UAO with AOC 11
Enforcement of AO 11
E. Oversight Of PRP Response 12
Oversight Costs 12
F. Criminal Investigation 12
G. Community Relations 12
Renuwuls-i
-------
Community Relations Plan 13
Community Relations Activities 13
H. ARARs 13
Section III. Planning and Reporting Requirements 14
A. Contractor Support 14
B. Information Management Systems 14
SCAP/STARS 14
ERNS .' 17
Notification System Process 17
EPA Regional ERNS Responsibilities 18
EPA Headquarters Responsibilities 18
ERNS Phase II 18
IFMS 18
Section IV. Potential Problems/Resolutions 19
A. Civil Investigator Support 19
B. Determining PRP Financial Viability 19
C. Use of Information Request Letters 19
Section V. References 20
Policy 20
Guidance 20
Manuals 20
Contacts 21
Section VI. Activities Checklist 22
ii—Remnvals
-------
Chapter II
Removals
Section I. Description of Activity
Introduction This chapter discusses enforcement activities associated with removal actions. Generally,
removal activity, including activity to secure and oversee potentially responsible party
removal actions, is managed by On-Scene Coordinators (OSCs). This chapter was written
primarily to assist OSCs in planning and conducting enforcement activities. However,
depending on the particular circumstances at a site, other program personnel may assume
lead roles in removal enforcement activities. At sites where remedial activity is ongoing,
the RPM may play a key role in securing and overseeing PRP removal response. For
convenience, only the term "OSC" is used throughout this chapter, although the informa-
tion is the same for RPMs when appropriate. Exhibit II-1 provides a broad overview of the
removal enforcement process.
Specific procedures and guidance for the Removal program are set forth in OSWER
Directive 9360.3-06, the Superfund Removal Enforcement Guidance, (April 6, 1992). The
Superfund Removal Procedures manual is being replaced by a series of stand-alone vol-
umes. The "Action Memorandum Guidance" was revised on September 26, 1990.
Definition ^emova' actions are defined in section 101(23) of CERCLA as "the cleanup or removal of
released hazardous substances from the environment, (and) such actions as may be neces-
sary taken in the event of the threat of release of hazardous substances into the environ-
ment..." This definition also includes actions necessary, to:
*. Monitor, assess and evaluate the actual or threatened release
* Dispose of removed material
* Protect public health or welfare or the environment from an actual or threatened release
* Investigate and gather information (as authorized by section l()4(b) of CERCLA).
Sections 104(a) and (b) also authorize responses and studies regarding releases and threat-
ened releases of pollutants or contaminants which may endanger human health, welfare or
the environment.
Authority Section 104(a) of CERCLA authorizes the President to act, consistent with the National Oil
and Hazardous Substances Pollution Contingency Plan (NCP, 40 CFR 300), to remove or
arrange for the removal of any hazardous substance, pollutant or contaminant if the Presi-
dent deems it necessary to protect the public health or welfare or the environment. Section
104(b) of CERCLA authorizes studies and investigations and section 106 of CERCLA
authorizes the President to order measures necessary to abate imminent and substantial
endangerment to the public health or welfare or the environment because of an actual or
threatened release of a hazardous substance. Section 106 also sets forth fines for any
person who, without sufficient cause, willfully violates or fails or refuses to comply with a
section 106 order. Specific standards and procedures for implementing CERCLA and for
conforming with other statutes are set forth in the NCP.
TVD6S Of EPA has classified removals into the following three categories based upon the site evalua-
P I tion and the urgency of the situation:
Removals-!
-------
* Emergencies—removals where the release, or threat of release, requires that on-site
cleanup activities begin within hours of the lead agency's determination that a removal
action is appropriate
* Time-CYitical—removals where, based on the site evaluation, the lead agency
determines that a removal action is appropriate and that there is a period of less than
six months available before cleanup activities must begin on site
* Non-Time-Critical—removals where, based on the site evaluation, the lead agency
determines that a removal action is appropriate and that there is a planning period of
more than six months available before on-site activities must begin. The lead agency
must undertake an Engineering Evaluation/Cost Analysis (EE/C A), or its equivalent,
for non-time-critical removals.
The urgency determination is a deciding factor in determining the amount of time that can
be devoted to a PRP search prior to on-site action, negotiation length, the type and timing
of public participation, whether an EE/CA must be conducted, and the extent of compli-
ance with other environmental statutes.
Rpmnval According to section 101(23) of CERCLA and section 300.415 of the NCP, die response
activities listed below may be appropriate removal actions in certain situations. This list is
ACtlVltlGS neither intended to limit response officials from taking other actions deemed necessary
under the circumstances, nor is it intended to preclude the lead agency from referring
response actions to other appropriate Federal or State enforcement authorities.
* Fences, warning signs, or other security or site control precautions—where humans or
animals have access to the release
* Drainage controls (e.g., run-off or run-on diversion)—where precipitation or run-off
from other sources (e.g., flooding) may enter the release area from other areas
* Stabilization of benns, dikes, or impoundments—where needed to maintain the
integrity of the structures
+ Capping of contaminated soils or sludges—where needed to reduce migration of
hazardous substances or pollutants or contaminants into soil, ground water, or air
* Using chemicals and other materials to retard the spread of the release or to mitigate
its effects—where the use of such chemicals will reduce the spread of the release
* Excavation, consolidation, or removal of highly contaminated soils from drainage or
other areas—where removal will reduce the spread of contamination
* Removal of drums, barrels, tanks, or other bulk containers that contain or may contain
hazardous substances or pollutants or contaminants—where it will reduce the likeli-
hood of spillage; leakage; exposure to humans, animals or food chain; or fire or
explosion
* Containment, treatment, disposal or incineration of hazardous materials — where
needed to reduce the likelihood of human, animal, or food chain exposure
* Provision of alternative water supply—where it will reduce the likelihood of exposure
of humans or animals to contaminated water.
StdtlltOrV Section 104(c) of CERCLA specifies mat Fund-lead removals may not exceed either $2
.. . . . million in cost or 12 months in duration. The criteria for exceeding the statutory limits
Limitations and (which do not apply to PRP-lead removal actions) include:
exemptions + An immediate risk to public health, welfare or the environment exists; continued
response actions are immediately required to prevent, limit or mitigate an emergency;
and such assistance otherwise will not be provided on a timely basis
2—Removals
-------
Exhibit 11-1
Overview Of Removal Enforcement
Activities Relationship to Response Actions*
Yes
*
Notify the State
t
Issue Notice
(Possibly with draft AOC)
|
Conduct Negotiations
^^^^^n
•**** T
II 1
Sign AOC | | Issue AOU p"
~~ — - t
"~~~^^^^J
1 .A
t
Make Administrative
Record Available to
Public/Public Comment Period
+
f
Comments
Site Discovery
t
Assess Removal Action Options/
Preliminary PRP Search
*
Begin Administrative Record File
*
Oral/Written General
Notification of Known PRPs
t
Follow up on Early Search
Activities and Notice
*
Develop Action Memorandum
with Enforcement Addendum
XviablX No
\PRPs/'
9
Non-Cornplianj£u-
— "
1
Make Administrative
Record Available to
Public/Public Comment Period
t
Written Response to Significant
Comments
1
T
Review Potential for Cost Recovery
' This general overview of removal enforcement may not apply in all situations, especially emergencies
-------
* Continued response action is otherwise appropriate and consistent with the remedial
action to be taken.
OSCs who request an exemption to the statutory limits on cost or duration for a Fund-lead
removal action should first ensure that all potential avenues of securing PRP cleanup or
funding for cleanup have been pursued. Headquarters carefully reviews all cost exemption
requests for Fund-lead removal actions for evidence of activity to secure PRP participation
in the cleanup. The following enforcement-related information should be included in the
exemption request Action Memorandum:
«• Extent of the PRP search
* Whether PRPs have been identified
* Financial status of PRPs, if PRPs have been identified
* Whether notice letters (special or general) have been issued
* Whether previous negotiations have been held with the PRPs and the results of those
negotiations
+ Whether an AO has been issued to the PRPs or previous demands for reimbursement
have been made
* Status of the Administrative Record
+ Enforcement history of the site
+ Enforcement options, discussion and recommendations.
Specific procedures for obtaining exemptions to the statutory limits on Fund-lead removals
are set forth in the Superfund Removal Procedures.
Administrative Record
and Public
Participation
Section 113(k) of CERCLA requires that the Agency establish an Administrative Record
for selection of CERCLA response actions. The Administrative Record is the body of
documents upon which the Agency bases its selection of a response action. Section
113(k)(2) of CERCLA requires that EPA develop procedures for appropriate participation
of interested parties in the development of an Administrative Record for a removal action.
The Administrative Record should consist of documents that the Agency considered or
relied on to select the response action and when appropriate, include documents demon-
strating the public's opportunity to participate in the selection of the response action.
More information on the Administrative Record is contained in Chapter XV, Records
Management.
Among the key components of the Administrative Record are the Action Memorandum
and underlying inspection reports and data.
Section 300.800 of the NCP and associated preamble discuss Administrative Record and
public participation requirements. In addition, guidance on Administrative Records is
provided in OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for
Selection of CERCLA Response Actions," (December 3, 1990). Exhibit II-2 depicts the
various activities EPA considers as requirements when establishing an Administrative
Record for each of the removal categories defined earlier in this chapter. The require-
ments for each removal category differ to ensure that the Administrative Record does not
unduly create delays in emergency and time-critical removal actions. OSCs and RPMs
should refer to the NCP and OSWER Directive 9833.3A-1 cited above, for information on
the documents that should be included in Administrative Records for removal actions.
Written Response
A written response to significant comments received during the public comment period
should be included in the Administrative Record file along with the comments. It serves
to document how public comments have been considered during the decision-making
process and to provide answers to significant comments raised.
Removals-3
-------
Section II. Procedures and Interactions
A.
PRP Search PR? searches are discussed in detail in Chapter IV, PRP Search, Notification, and Infor-
mation Exchange. The urgent nature of emergency removal actions may require response
initiation prior to an extensive PRP search that goes beyond identifying the owner/
operator. This section discusses PRP searches related to removal actions.
PRP Response Policy Where PRPs are known and able to perform the removal, EPA prefers that they undertake
the response action pursuant to an administrative order. A PRP investigation should be a
part of the preliminary assessment that an OSC conducts under section 300.410 of the
NCP. To the extent appropriate under the circumstances, the OSC is to search further for
responsible parties and attempt to have them perform the necessary removal action. In
addition, supplemental searches may be warranted during a stabilization action for PRP
takeover of the disposal and for cost recovery if the removal is conducted with use of the
Fund.
PRP Search Strategy A PRP search strategy is important. As background to conducting removal PRP searches,
the general steps in the PRP search process are described in Chapter IV. The level of
effort of the PRP search and period of performance of search tasks in removals depend on
the amount of time between discovery and the execution of the Action Memorandum, the
urgency of the release situation, the likely expenditures on the removal, and available
resources. For descriptive purposes, Exhibit II-3 shows how the level of effort tends to
vary with urgency. Although the amount of removal expenditures affects the expenditures
for a PRP search, this concept is not depicted by the chart. Information gathered during
the PRP search, such as that indicated by the activities in Exhibit II-3, is essential to
support an enforcement strategy at Superfund sites.
In many removal situations, effective PRP searches depend partially on the presence in the
field of the personnel conducting the search. To realize the advantage of having PRP
research conducted partially in the field, and as a matter of standard procedure, the
enforcement project manager, if different from the OSC, should consult with the OSC on
the PRP search as well as other aspects of the case. It is important that search activities be
well-documented even if the result is that no viable PRPs are identified.
Emergency Situation
In emergency situations where the PRP is not immediately known, the OSC usually
conducts the PRP search in two phases. Initially, streamlined procedures, consisting of
oral inquiries of municipal officials and reasonably available on-site sources, as well as
reviews of readily available site records are implemented. Oral inquiries should be
documented as soon as practicable. Obvious visual information of possible PRP links to
the site should be recorded if time permits. TAT or TES support under an expedited work
assignment may be employed. The OSC should, to the extent possible, prioritize and
expedite certain search activities to support the notice, negotiation and administrative
order process before the removal begins. Once the site is stabilized, the second, and often
more extensive, phase of PRP identification efforts should continue. This phase of the
PRP search may support cost recovery efforts and partial-work orders. Depending on
response expenditures, available resources and the site strategy, the civil investigator and
contractor (e.g., TES) may provide assistance on the follow up search.
Time-Critical Situation In time-critical situations, the OSC should follow procedures mat expand upon the PRP
search activities discussed for emergency situations. Title searches and on-site interviews
also should be undertaken (OSCs should coordinate with civil investigators to determine
4-Removals
-------
Exhibit 11-2
Community Relations And Administrative Record Requirements For Removals
Activity
Designate spokesperson
Notify affected citizens
Establish Administrative Record (AR)
file
Make AR available when EE/CA approval
memorandum is signed
Make AR available within 60 days of
initiation of site activity
Place AR in central location
Place AR at or near facility
Notify public of AR
Provide a comment period of not less than
30 days from date AR is available
Prepare written response to significant
comments
Conduct community interviews
Prepare Community Relations Plan
Time-critical1
Where on-site activity lasts
less than 120 days
(includes emergencies)
X
X
X
X
X
X*
X
X**
X
Time-critical1
Where on-site activity lasts
more than 1 20 days
X
X
X
X
X
X
X
X
X
X
X
Non-time-critical2
X
X
X
X
X
X
X
X
X
X
X
1 Removals where, based on the 2 Removals where, based on the * The AR file for emergency removal ** Where appropriate.
site evaluation, the lead agency site evaluation, the lead agency actions where on-site activities
determines that a removal action is determines that a removal action is cease within 30 days of initiation
appropriate and that there is a appropriate and that there is a need only be available for public
period of less than six months planning period of more than six inspection at the central location.
available before on-site activities months available before on-site
must be initiated. activities must begin.
-------
Exhibit 11-3
PRP Search Activities
1
o
O)
Follow up search conducted later
Preliminary search
• Gather visual evidence
from site
• Conduct on-site interviews
• Consult municipal officials
• Review readily available
site records
Use TAT for preliminary
activities
Issue 104(e) information
requests
Document additional evidence
linking PRP to site (e.g.,
photos)
Conduct a title search
(coordinate with civil
investigator)
Conduct off-site interviews
Review relevant site records
Gather visual evidence from
site
Conduct on-site interviews
Consult municipal officials
Review readily available site
records
Prepare interim final PRP
search report
Issue 104(e) information
requests regarding generators
and transporters
Prepare baseline PRP search
report
Document additional evidence
linking PRP to site (e.g., photos)
Conduct a title search
(coordinate with civil
investigator)
Conduct off-site interviews
Review relevant site records
Gather visual evidence from
site
Conduct on-site interviews
Consult municipal officials
Review readily available site
records
Emergency
Time-Critical
Non-Time-Critical
Urgency of the Situation
*Note: Example for descriptive purposes only; some work may follow response actions
-------
what information needs to be obtained). OSCs also may use l()4(e) information requests
that include questions pertaining to generators and financial viability to obtain additional
evidence during the PRP search.
Non-Time-Critical Situation ^l a nummum> me OSC should conduct the same preliminary PRP search measures
discussed above. In addition, depending on the level of expenditures and the amount of
time available, the OSC may take additional steps, such as further questioning of persons
on or near the site and on-site investigation for names of PRPs (e.g., records review).
After the OSC has made a preliminary effort to identify PRPs, he or she may request
Regional enforcement personnel to conduct a potentially responsible party search to
identify generators and transporters. A baseline report as described in Chapter IV should
be prepared and decisions should be made on specialized tasks. Where PRPs do not
conduct the work, an interim final report will be necessary.
Technical Enforcement Support (TES) contracts. Technical Assistance Team (TAT)
contract support, or civil investigators may be used to support PRP searches in non-time
critical situations. Other support may be available through the use of 8(a) (i.e., minority or
disadvantaged contractor set-aside) contractors. OSCs also may request the assistance ot"
the National Enforcement Investigations Center (NEIC) in conducting a PRP search.
All Removals OSCs should be prepared to obtain the necessary approval to conduct a Fund-lead re-
sponse if no PRPs can be identified. However, the initiation of a Fund-lead response does
not mean that the search for PRPs is discontinued. During a Fund-financed removal,
OSCs should fully document possible evidence of liability at the site in anticipation of cost
recovery litigation. Documentation activities include photographing the site to verify site
conditions and obtaining evidence of PRP links to the site such as site records identifying
owners/operators and generators. OSCs may utilize TAT contractors in gathering infor-
mation that may help establish a party's status as a PRP. Efforts to locate PRPs should
continue throughout the removal action to support cost recovery efforts and possible PRP
involvement in any future response actions.
PRP Search Completion ^s noted ul Chapter IV. PRP search reports usually should not be viewed as complete PRP
searches. In most multi-party cases where substantial funds are spent, specialized tasks
also will be utilized to provide adequate information beyond the baseline report. Exhibit
II-3 shows the information that the PRP search effort should include or yield to meet the
target of a completed PRP search.
B. Enforcement and After initiating me search for PRPs, but prior to issuing notice, decisions must be made
M t* f Dl ' regarding the site lead and enforcement strategy. Careful planning during this phase of the
Negotiations rianning removai helps ensure that negotiations and other enforcement activities will be conducted
with greater success.
Site Lead When viable PRPs have been identified, every attempt should be made to secure PRP
conduct of the removal activities. However, site lead decisions must be based on the
exigencies of the particular situation. Primary factors to be considered in making a site
lead decision include:
* Immediacy of the need to respond
* Strength of the case on PRPs' liability
* Financial viability of the PRPs.
Removals—5
-------
Other criteria to be considered include:
+ Ability and need to precisely define the removal
* Unique technical problems, including oversight
* Technical capability of the PRP to conduct the removal
+ Willingness of PRPs to conduct the removal (lack of willingness does not preclude a
UAO)
* Availability of the Fund
* Cost of the removal (very low-cost removals have low priority for enforcement).
In addition, consideration should be given to the workload of the Regional staff and the
extent of oversight activities.
Enforcement Strategy —
Addendum to Action Memo
Except in true emergencies, prior to initiating the PRP notification process, the OSC
should prepare a brief strategy that details the information and activities needed to success-
fully plan a removal action. An "Enforcement Sensitive" attachment that includes infor-
mation on the enforcement strategy, PRP response, and previous actions should accom-
pany the Action Memorandum for the site. See OSWER Directive No. 9360.3-01 "Action
Memorandum Guidance" Volume One of Removal Procedures Manual (September 26,
1990). If time permits, the enforcement staff should undertake the following activities
when preparing for negotiations with PRPs:
* Review results of preliminary PRP search efforts for adequacy and accuracy and
supplement as necessary
* Determine notification strategy
* Review problems posed by site
+ Develop clear statement of work to be done coasistent with draft Action Memorandum
* Prepare draft Administrative Order (AO)
* Develop negotiations strategy.
Preparing a brief negotiations strategy prior to the initiation of negotiations helps easure
that the OSC has considered various aspects of the situation which could affect removal
activities. For example, at a drum site the OSC should attempt to establish the number of
drums, how many are leaking, how many are overpacked, and any other information mat
would affect plans for removal activities. Obtaining this information also prepares the
OSC for the first round of negotiations with the PRP, which can be jeopardized by inad-
equate preparation and unclear cleanup goals. The statement of work should be attached to
the notice letter that advises PRPs of their potential liability and possibly initiates negotia-
tions with EPA for conducting the removal.
c.
PRP NotlCG Where PRPs have been identified, EPA's general policy is to notify PRPs of their potential
liability, advise them of the intended response action, and afford them opportunities to
comment on the removal action. Where the circumstances allow, there often will be two
notice letters: (1) notice of potential liability and (2) notice of an opportunity to negotiate
to conduct the removal (negotiations are discussed in section D of this chapter). In
emergencies and some time-critical removals, these notice letters and the negotiations
processes may be combined. Moreover, in emergencies, the notification process may
involve oral notification of identified PRPs, which should be confirmed with a written
notice letter.
6-Renwvals
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The content of notices vary depending on whether:
* The notice will be used simply to notify PRPs of their potential liability; it may further
advise the PRP of an action EPA has already taken or is about to take. Regions have
found that notices specifying the work to be performed have proven successful in
getting the PRPs to do the cleanup
* The notice will be used to encourage a private party response through negotiations
* The notice will be used as a mechanism for invoking the section 122(e) special notice
procedures which provide for negotiations with a formal moratorium on response.
Emergency and time-critical removals do not follow special notice procedures due to
the urgency of these situations.
Where possible, the Regional program office should send notice letters to all known PRPs
prior to the initiation of the removal action. The OSC must consult and coordinate with
Regional enforcement staff in notifying PRPs of their potential liability and requesting
removal action by the PRP. Except in limited emergency situations, it is inappropriate to
provide initial notice by a Unilateral Administrative Order. Exhibit II-4 identifies the
steps involved in securing potentially responsible party action. OSCs should refer to
OSWER Directive 9360.3-06 "Superfund Removal Procedures — Removal Enforcement
Guidance for OSCs" (April 1992) and OSWER Directive 9834.10, "Interim Guidance on
Notice Letters, Negotiations, and Information Exchange" (October 19, 1987) for policies
and procedures concerning the notification process. Also, OSWER has distributed model
notice letters (OSWER Directive 9834.10, "Model Notice Letters," February 7, 1989) and
most Regions have their own models.
Notification in Emergency
Situations
In emergencies, the OSC may notify known PRPs orally. The Regional program office
then should prepare and send a general notice letter to the PRP confirming the oral
notification of liability and any request for response. The Regional program office should
send the notice letter as soon as possible following the oral notification. Although a
written notice letter typically precedes die initiation of an Administrative Order (discussed
in section D of this chapter), this is not necessary in emergencies, given the limited time
available.
Notification in Time-Critical
Situations
In time-critical situations, the OSC may initially notify PRPs orally and follow the same
procedures as in an emergency. Whenever possible, it is preferable that notice letters be
issued before the removal action. Moreover, the OSC should conduct a review of and
follow up on preliminary PRP search activities to ensure all reasonably known PRPs have
been identified. The extent to which PRP search activities may be reviewed and upgraded
is dependent on the urgency of site conditions.
Notification in Non-Time-
Critical Situations
In non-time-critical situations, procedures for obtaining PRP response are more likely to
involve formal negotiations which may be invoked by issuance of a special notice or
section 122(e) letter. First, the PRP search should be reviewed and any outstanding leads
pursued during the drafting of the proposed EE/CA. The PRP search review and follow-
up activities should include the use of section 104(e) information requests (see section IV
of this chapter). Notice letters should be issued to PRPs and, depending on the response,
an Agency team of Regional technical and legal personnel should quickly schedule
negotiations aimed at securing PRP cleanup within an established period of time.
The use of the special notice procedure should only be considered for non-time-critical
removal actions because the issuance of a special notice triggers a 60-120 day moratorium
on EPA action and a specific time frame for negotiations. Therefore, CERCLA section
122(e) special notice procedures should be used only for those removals where site activity
need not commence for 60-120 days following issuance of the notice letter.
Removals—7
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D. AOC Negotiations
and UAO Issuance
The site lead determination and enforcement strategy (see section B of this chapter) will
determine the general approach to negotiating activity at the site. Where negotiations are
part of the strategy and time allows, the preferred approach to negotiations is to send the
PRP a notice letter specifying the work to be done and establishing a time frame for
negotiation of an Administrative Order on Consent (AOC). Where possible, it is advanta-
geous to send the PRPs a site-specific AOC, with the letter or as soon thereafter as pos-
sible. It is appropriate to advise PRPs that EPA may issue a Unilateral Administrative
Order (UAO) if they do not consent to an AOC. For leverage in negotiating an AOC, it
often is helpful to have a signed Action Memorandum. The preferred outcome of the
negotiations is an AOC.
The time period for negotiations should reflect the exigencies of site conditions; the nature
of the work being discussed; and the response of the PRPs to prior communications. In
non-time-critical situations where EPA has issued a special notice and the PRP has
responded with a good faith offer, an automatic 60-120 day moratorium on EPA activity at
the site establishes a fixed period during which negotiations may occur.
Regions may consider the use of a detailed technical scope of work in negotiations and/or
as an attachment to the order.
Enforcement staff may take the following steps when conducting negotiations with PRPs:
+ Meet with PRPs
+ Negotiate language in the Administrative Order
* Negotiate technical points and schedules in die workplan
+ Enter into an AOC, to which PRPs agree and sign, or issue a UAO which PRPs do not
sign.
Due to the time-sensitive nature of removal incidents, the negotiation process is often
accelerated and certain steps described above may be eliminated. The negotiations
schedule should be specified to PRPs.
The time period needed to conduct negotiations and sign an administrative order may vary
from days to months, depending upon the specific circumstances. For simple removals,
the order may detail work to be done. For more complex removals, the order often
provides the scope of work for later response activities and requires the PRP to draft the
detailed work plan as a deliverable if the OSC has not already written the work plan. This
enables the AOC to be signed and the PRP to initiate stabilization measures at the site
before a completed work plan has been agreed upon.
In some cases, Regional personnel may find that PRPs wish to negotiate to conduct a
portion of the removal action. The PRP may be financially or technically unable to
completely address some of the contamination at the site. It may be appropriate to have
the PRP undertake simple tasks (e.g., security) as well as others that he can accomplish.
Where the PRP appears to be incompetent or lacks substantial resources, it often is prefer-
able to initiate a Fund-lead response. At some non-emergency removals, there may be
viable PRPs that are willing to settle by conducting only a portion of the work so that EPA
will pursue other PRPs for the remainder by unilateral order and/or cost recovery action. If
the nature of the removal and the universes of PRPs warrant such an order, this is known
as a "carve out" order. It should be noted that carve out orders may not be appropriate in a
number of situations due to time, resources, and legal implications (e.g., extent of contribu-
tion protection).
Administrative Orders on
Consent (AOC)
As noted earlier, the preferred product of negotiations is a CERCLA section 106(a)
Administrative Order on Consent (AOC), also known as a consent order.
8-Renwvals
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Exhibit 11-4
Securing PRP Action for Removals
Regional Technical Enforcement
Personnel
Determine That Response
Activities May Be Necessary
I
Regional Technical Enforcement
Personnel
Identify PRPs
Regional Technical Enforcement
Personnel
Continue Search Follow-up
Activities
YES
Initial
PRP Search
Successful?
Regional Technical Enforcement
Personnel
Determine Extent of Continued
Search and Followup
Regional Technical Enforcement
Personnel
Notify (oral/written) PRP of
Potential Liability
I
Regional Technical Enforcement
Personnel
Identify PRPs
Regional Program Office
Prepare Action Memo & AR; Notify
PRP of Required Action
±
Regional Technical Enforcement
Personnel
Notify/Request PRP to Conduct
Removal and Negotiate with PRP
Regional Administrator
Negotiations Result in
AOC?
Hold Conference with PRP
PRP Agree to
Terms of AO?
Enter into Consent Order or
Perform Removal Based on
Unilateral Agreement **
Initiate Cleanup
Initiate Fund-financed
Response Followed by Cost
Recovery or Initiate Section 106
Litigation to Enforce Order
Monitor PRP Cleanup
YES
Regional Administrator
Issue AOC
** UAO does not have to be converted to AOC for PRP to initiate response actions.
-------
Unilateral Administrative
Orders (UAO)
Model UAO and AOC
In emergency and some time-critical situations, Regional staff may find it necessary to
bypass negotiations and immediately issue a Unilateral Administrative Order (UAO). In
addition, if viable PRPs fail to respond appropriately to the oral/written notification and
negotiation process described above, Regions should pursue issuing a CERCLA section
106 UAO unless there is good reason not to issue an order. The following criteria must be
satisfied to issue an order:
* Potentially liable parties have been identified
* There is evidence of a release or threat of a release of a hazardous substance
* There is evidence that the release is from a facility
* Site conditions may present an imminent and substantial endangerment
* The affected State has been notified
* The removal is not inconsistent with applicable law (see CERCLA and the NCP).
Unilateral orders are an effective way to achieve PRP response in situations where there is
insufficient time to pursue thorough negotiations, or the PRP is unwilling to conduct the
cleanup pursuant to an AOC. Also, UAOs usually contain a provision requiring notice or
intent to comply within a specified period which enables the OSC to determine the need
for a Fund-lead response.
In an effort to streamline the order process and to ensure that removal orders represent a
unified Agency position for removal actions, model removal orders have been developed.
OSWER Directives 9833.06 and 9833.07 (March 1993) contain a model AOC and model
UAO, respectively. Although not binding upon the Regions, the model orders contain
easily understandable and standard language, so many sections require little or no addi-
tional information. However, the orders provide enough flexibility for site-specific
factors.
The AOC and UAO were each designed to reach specific goals. The AOC is designed to
encourage settlement, and thus contains incentives to reach that goal that are absent in the
UAO. In Certain sections, however, the orders contain similar or identical language.
Sections found in both the UAO and AOC:
* Jurisdiction and General Provisions - Both orders describe the legal authority for
issuing the order.
* Parties Bound - This provision is found in the AOC and U AO. This section lists those
parties related to the respondents who are subject to the terms of the order.
* Definitions - Both orders contain this section as optional. Terms which are ambiguous
or may become a source of future confusion or challenge by the PRP should be defined.
* Findings of Fact - The order will contain the site-specific facts to provide background
information and support an endangerment finding, i.e., identify the hazardous
substance(s) present and the release or threat of release of the hazardous substance(s)
that exist and that may present an imminent and substantial endangerment to the public
health or welfare or the environment. In addition, where potentially liable parties are
named in the order, facts should be provided to support such a finding. (See CERCLA
section 107(a) for specific elements.)
* Conclusions of Law and Determinations - Both orders contain the legal determina-
tions necessary to issue an order under section 106.
* Order - This section contains many sub-sections specifying the work objectives mid
the general parameters for performing the cleanup. These include:
Designation of contractor, work to be performed, health and safety plan
Quality assurance and sampling
Removals—9
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- Reporting
Access to property
Record retention
Off-Site shipments
- Compliance with other laws
Emergency response and notification of releases
* Authority of the EPA On-Scene Coordinator - Both orders indicate that the OSC
is responsible for overseeing the implementation of the order.
* Reservation of Rights - Both orders contain language indicating that EPA is not
prevented from ordering or taking other actions necessary to protect public health and
the environment.
* Other Claims - This section indicates that EPA is free to pursue an action against the
PRP not covered by the order or a person not party to the order for any liability under
CERCLA, other statutes or common law. However, the ability to bring subsequent
actions is limited by the language in the Covenant Not to Sue section of the AOC.
* Modifications - This section, found in both the AOC and UAO, permits the OSC to
make oral and written modifications. The OSC can modify any plan, schedule, or
statement of work with respect to a given order. For UAOs, any other portion of the
order may only be modified in writing by the EPA Regional designee. Any other
requirement of the AOC may only be modified by mutual agreement of the parties.
* Notice of Completion - This section states that EPA will give the respondent(s)
written notification when it has determined the order is to be completed.
+ Access to Administrative Record - This section, found in the UAO, informs the PRP
that the AR file is available for review at the Region.
* Insurance - The use of this provision in an order is a regional site-specific determi-
nation. If used, it requires the respondent to obtain standard form business liability
insurance.
• Additional Removal Actions - Regional use of this section is optional. It permits EPA
to require that a respondent perform additional removal actions not included in the
EPA-approved work plan.
4 Severability - A court may invalidate a provision of the order. If this action occurs,
this section requires the respondent to comply with all other provisions of the ofder.
* Effective Date - This section contains the date the orders were issued and the effective
date of the order.
* Reimbursement of Costs - The UAO requires reimbursement of oversight costs. The
AOC requires reimbursement of past costs as well as oversight costs.
* Notice of Intent to Comply - This section requires the respondent to indicate in
writing whether he/she intends to comply with the UAO.
+ Opportunity to Confer - This section provides the respondent with the opportunity
to request a conference with EPA in order to discuss information, arguments, or
comments regarding the UAO.
* Enforcement Penalties for Noncompliance - This section paraphrases the statutory
language found in CERCLA sections 106 and 107 regarding the violations of the order
and penalties.
+ Post-Removal Site Control - Respondent is responsible for implementing post
removal site control activities.
10-Removals
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Sections specifically found in the AOC:
* Stipulated and Statutory Penalties - The AOC provides for stipulated penalties in
the event of noncompliance with the order. This provision is in addition to the
language regarding statutory penalties.
* Force Majeure - This section establishes procedures and standards under which
respondents' compliance obligations may be delayed if & force majeure event occurs.
* Covenant Not to Sue - In the AOC, EPA may provide the following covenants: not
sue for judicial imposition of damages; not seek civil penalties; not sue for recovery
of response costs; and not take administrative actions for failure to perform removal
actions agreed to in the AOC.
* Contribution Protection - The AOC provides that the respondents are entitled to
contribution protection to the extent provided by section 113 of the statute. Contribu-
tion protection protects a settling party against lawsuits from non-settlors concerning
the removal for which it has settled.
* Indemnification - This section states that the respondent will not hold the US
responsible for damages or costs or claims arising from an act. or omission of
respondent in carrying out an AOC.
* Financial Assurance - Respondent is required to provide periodic financial assur-
ances. This section is optional.
* Public Comment - At least 30days before any settlement regarding past costs, section
122(i) requires that EPA provide persons who are not parties to the settlement the
opportunity to comment.
* Dispute Resolution - This section outlines the steps that will be taken should a
disagreement over the implementation of the order need to be resolved.
Issuance of UAOs
Regional enforcement staff should issue a UAO before Fund activation but after prepara-
tion of an enforcement action memo as defined in OSWER Directive 9360.3-01, "Action
Memo Guidance," whenever a PRP has been identified (unless the PRP is non-viable),
provided the criteria for site lead discussed earlier in section B are met and the order is
within Regional resources. The OSC and other Regional personnel should continue the
process of obtaining approval for a Fund-financed action, providing the PRP does not
comply.
Activation of Fund During
AO Issuance
If site conditions warrant, the OSC should immediately initiate on-site response activities
while the AO process continues. PRP takeovers of removals are limited. Where appropri-
ate, at a convenient break in the response activities, EPA may demobilize its contractor
and the PRP may assume responsibility for the remaining activities required. In such
cases, the AO should be revised to reflect the PRP takeover.
Replacement of
UAO with AOC
The recipient of the UAO may agree to comply with the terms of the order. In some cases,
EPA may choose to withdraw the Unilateral Order when it is replaced by an Administra-
tive Order on Consent or the Agency may convert a UAO to an AOC if significant en-
forcement advantages are achieved. EPA generally does not devote a significant amount
of time to a second round of negotiations.
Enforcement of AO
Non-compliance with AOs is determined through the oversight process. There are two
kinds of non-compliance: no major response to the order; and a response that does not
satisfy the order.
Renwvals-ll
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If the recipient does not comply with the terms of the order, EPA usually will proceed with
a Fund-financed response and subsequent suit for cost recovery under CERCLA section
107 (including treble damages if the PRP did not have sufficient cause for non-compliance
with an AO and penalties under section 106(b) of not more than $25,()(X) per day of
violation).
In certain situations EPA, with DOJ assistance, will enforce the terms of the order and
compel PRP response through judicial enforcement actions under section 106 of CERCLA.
Although the Agency has the authority to refer a section 106 action (e.g.. filing a section
106 complaint), it is often preferable not to do so when Fund monies are available and die
delays of litigation are inconsistent with program direction. Violation of a UAO will set
up a treble damage and penalties action under section 107 of CERCLA.
Oversight Of
PRP Response
An AO prescribes the activities the PRP must undertake. Regional personnel responsible
for monitoring PRP compliance either should remain on-site or visit the site periodically,
whichever is appropriate given the circumstances of the release and the nature of cleanup
activities. Oversight activities by Agency personnel may be supplemented tlirough the use
of contract resources such as TAT or TES. Contractors may assist Agency personnel in
overseeing field activities and conducting technical review of work plans, protocols, site
data, and reports.
When the PRP agrees to undertake response action, but monitoring by the OSC or
CERCLA enforcement personnel shows that the actions are not timely or appropriate, EPA
may either enforce the AO by taking a CERCLA section 106 judicial action or take over
the response and pursue cost recovery.
Oversight Costs Costs associated with oversight of PRP response actions, including removal actions, are
fully recoverable under section 107 of CERCLA. To facilitate the preparation of potential
future cost recovery actions agaiast either PRPs conducting the removal or other non-
participating PRPs, OSCs and RPMs should comply with the cost documentation proce-
dures described in Chapter XII, Cost Recovery.
Recoverable costs include both intramural (e.g., EPA payroll, travel, and indirect costs)
and extramural (Agency contractors' costs) oversight costs. Detailed information on cost
recovery is located in Chapter XII, Cost Recovery. Information on cost management and
recordkeeping also is in the Removal Cost Management Manual (April 1988).
F.
Criminal
Investigation
If at any time before or during removal actions criminal activity is suspected, the Special-
Agent-In-Charge should be notified immediately to begin criminal investigative activities.
In situations where a criminal investigation has been initiated by NEIC, the OSC or RPM,
and Regional Counsel should exercise caution on becoming involved in a criminal investi-
gation while conducting a PRP search, administrative or civil investigation. Additional
information on criminal investigations and the role of the NEIC and Regional personnel is
provided in the memorandum "Functions and General Operating Procedures for the
Criminal Enforcement Program" (Courtney M. Price, January 7, 1985).
G.
Community
Relations
Community relations activities are ongoing throughout removal actions, varying in extent
with the urgency of the situation. The objectives of community relations during removal
actions include:
* To identify citizen leaders, public concerns, and a site's social and political history and
encourage citizens to express concerns and provide information
* To take into account community, including PRP, views and concerns regarding the
decision-making process
12-Ri'niovals
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* To provide information to the community on the health and environmental effects of
releases and proposed response action.
By providing information as directly and quickly as possible, the OSC will ensure that the
community receives the information it needs about the response action and the effects of
the release on the community's health and safety. EPA/540/R-92/009 Community Rela-
tions in Superfund: A Handbook (January 1992), should be consulted for current policy on
community relations during removal actions.
Community Relations Plan
NCP section 300.415(m)(3)(ii) states that a Community Relations Plan (CRP) shall be
prepared within 120 days for all response actions where on-site action is expected to
extend beyond 120 days. See NCP section 300.415(m)(2)(i) for requirements applicable
to actions expected to take less man 120 days. Before preparing a CRP, program and
community relations staff must meet with local officials and interested citizens to obtain
information about the site and to identify public concerns. The plan should provide:
* Site background
* The nature of the community concern
* The key site issues
•* The objectives of the community relations activities
> Specific activities to be undertaken at the site.
Responsible parties may participate in implementing elements of the CRP at the direction
of, and with oversight by, Regional staff. The lead agency develops the community
relations plan.
Community Relations
Activities
Specific types of community relations activities during removals are likely to include
meeting with citizens in the community, responding to inquiries from the media, and
providing local officials with site status information.
H.
ARARs CERCLA does not require removal actions to comply with Applicable or Relevant and
Appropriate Requirements (ARARs) of other environmental statutes. However, the NCP
requires on-site CERCLA removal actions to attain Federal and State ARARs to the extent
practicable, considering the urgency of the situation and the scope of the removal action to
be taken. In some instances, EPA may require PRPs to identify potential ARARs as part
of a deliverable under an order. As with any deliverable, the PRPs must receive EPA's
approval. However, ultimately it is Uie lead agency that is responsible for determining the
final list of ARARs that can be practicably attained.
Removals-13
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Section III. Planning and Reporting Requirements
A.
Contractor
Support
Resources available to Regional personnel to conduct PRP searches include OSCs, the
Technical Assistance Team (TAT) contract, the Technical Enforcement Support (TES)
contract (until FY94 when the Environmental Enforcement Support Contract will replace
TES), civil investigators, enforcement project managers, and the NE1C. Regional person-
nel should evaluate the contracting support options for conducting effective and efficient
PRP searches for removals, and incorporate contractor support requirements into quarterly
and annual budget planning procedures. When planning for this contract support, keep in
mind that resources may be constrained by contract capacity or other factors.
Regional experience has shown that the TAT is an efficient resource for gathering informa-
tion regarding property owners and site operators because the TAT is already in the field
responding to the removal situation. Some Regions have open-ended TES work assign-
ments that allow for limited PRP research to be conducted while the official paperwork for
the work assignment is being processed. This approach has proven effective for limited
research but does not allow and should not be used for the identification of a large number
of generators/transporters. Regional personnel should note that the capacity of the TES
contract may not allow its use for all removal PRP searches because of PRP search
activities for the remedial program. Generally, a standard work assignment is used for
PRP search work beyond the initial TAT work.
B. Information
Management Systems
EPA has established several distinct but interrelated systems for documenting and tracking
removal activities from the initial notification of the release through the completion of the
response. This section identifies the various planning and tracking systems and discusses
their relevance to enforcement removals.
The removal program responds to emergency, time critical and non-time critical situations
at NPL and non-NPL sites. Because much of the removal work cannot be anticipated in
advance, the planning horizon of these activities is significantly shorter than for remedial
activities. Thus, quarterly commitments are not required. Site-specific removal funding
needs are placed in WasteLAN the quarter prior to the expected obligation date. The
annual removal commitments are placed in the Targets and Accomplishments portion of
the CERHELP non-site data system. Credit will be given for NPL or non-NPL activities
depending on the NPL status recorded in CERCLIS on the date accomplishment reports
are pulled.
Removals are tracked by SCAP/STARS through CERCLIS/WasteLAN. OSCs should
coordinate with their information managers to ensure that they are entering information
into CERCLIS/WasteLAN correctly. All SCAP/STARS targets are established on an
annual basis. Targets are planned site specifically prior to the quarter the removal is
projected to begin. Exhibit 11-5 summarizes SCAP/STARS Targets relevant to removals.
Exhibit 11-5
SCAP/STARS Targets for Removals
Activity
NPL Removal Start
Non-NPL Removal Start
NPL Site Completions
Through Removal Actions
STARS
Targets
SCAP
Target
X
X
X
Quarterly
Target
Annual
Target
X
X
X
14-Remnvals
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Definitions for:
* Removal Starts - NPL and Non-NPL - A removal is a response action taken to
prevent or mitigate a threat to public health, welfare or the environment posed by
the release or potential release of a CERCLA hazardous substance, or an imminent
or substantial risk posed by a pollutant or contaminant.
In order for the NPL removal to be counted in the STARS target S/E-4. Number of
Sites Where Activity has Started, First NPL Removal Actions or RI/FS, it must not
have had previous Fund-financed or PRP removal or RI/FS activity at the site. The
definition of accomplishment for a Removal Start depends on the lead.
* Fund-financed - A Fund-financed removal counts toward this target when on-site
removal work is begun as documented in the POLREP. Prior to on-site work
beginning, the following actions usually occur:
- The Action Memorandum is approved by the OSC, Regional Administrator or AA
SWER
- A Delivery Order has been issued by EPA under the ERCS contract or a contract
has been signed for a U.S. Coast Guard (USCG) oil-site removal
- An obligation for the removal has been recorded in WasteLAN and the Integrated
Financial Management System (IFMS) or the OSC activates $50,000
- On-site removal work has begun.
The date the on-site work begins is the start date for the removal action.
* PRP-financed - A PRP removal counts when there is on-site removal activity
financed by the PRP in compliance with an AO (unilateral or consent), CD or
judgment. The start date, as recorded in WasteLAN, is the date the PRPs begin
actual on-site work. If PRPs start the removal and subsequently become in
substantial non-compliance and the Fund takes over the removal, credit will be
given for a PRP start but the Fund will be credited for the completion, because
PRPs have not met the terms of the AO or CD. If the PRPs do not comply with a
UAO, credit for the removal is not given. Regions will receive credit under SCAP
for issuing the UAO. No credit will be provided where a PRP is conducting a
response without an enforcement document.
Plans are made site-specifically prior to the quarter die removal is expected to begin;
TBD sites are allowed. Removal starts are SCAP targets. First NPL removal starts or
first RI/FS starts are targets under STARS. Separate targets are established in SCAP
for RI/FS starts and removal starts. Regions cannot receive credit for a site under
STARS S/C-4, Number of Sites Where Activity has Started, First NPL Removal
Action or RI/FS, if an RI/FS or NPL removal began or was conducted at the site in a
previous year. Regions also cannot receive credit for both an RI/FS start and a removal
under STARS if tiiey are started in the same year. Credit is given for the first activity
started and a site can receive credit only once. Therefore, historical data needs to be
reviewed prior to negotiating commitments and recording accomplishments in STARS.
Regions can receive credit for both activities under SCAP.
* NPL Site Completions Through Removal Actions - An NPL site is completed
through a removal action when conditions specified in the Action Memorandum or
ROD have been met and all necessary remediation at the site has been completed.
The definition of accomplishment for a Removal completion depends on the lead.
+ Fund-financed - A removal completion that cleaned up an NPL site is credited
when:
- The contractor has demobilized and left the site as documented in a POLREP
- A ROD that states mat all necessary remediation is complete has been signed
Renwvals-15
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- The ROD documents that the site meets the statutory requirements for site
closeout.
* PRP-fmanced - A removal completion that cleaned up an NPL-site is credited when
- The Region certifies that the PRPs or their contractor have completed the removal
action and fully met the terms of the AO, CD or judgment
- A ROD that states that all necessary remediation is complete has been signed
- The ROD documents that the site meets the statutory requirements for site
closeout.
The removal event qualifier that states the site is cleaned up (C2103=C) must be entered
into WasteLAN. The date of the signature of the ROD that states that all remediation is
complete must be entered in the removal completion and ROD completion data fields. The
RA technology type (C3401=RT and C3402=NA) must also be entered into WasteLAN.
The date of the Final Superfund Site Close-Out Report should be entered with the ROD
subevent, Close-Out Report completion (C3401=CL). This is a SCAP target. It is planned
site-specifically and includes Fund-financed and PRP removals. NPL site completions
through removal are included in the STARS target S/C-3, NPL Sites That Have Been
Completed.
Exhibit II-6 summarizes SCAP/STARS measures relevant to removals.
Exhibit 11-6
SCAP/STARS Measures for Removals
Activity
Removal Investigations at
NPL Sites
NPL Removal Completions
Non-NPL Removal
Completions
Federal Facility Removals/
ERAS (FFE-3(2))
Administrative Orders Issued
for Removal and RI/FS
STARS
Reporting
X
SCAP
Plan/Report
X
X
X
X
x
Quarterly
X
X
X
X
X
Annual
X
X
X
X
X
• Removal Investigations at NPL Sites • A removal investigation at an NPL site is
the process of collecting field data at aft NPL site for the purpose of Characterizing
the magnitude and severity of the problem to determine if a tejnoval or quick
response action is warranted. Investigations may be conduptec} by.the State, EPA
and/or the Technical Assistance Team (TAT), and must inclu.<& ag on-site compo-
nent, such as a walk around survey or sampling, to be counted.
The start of the removal investigation at NPL sites is defined as the date of the site
visit or the start of the review process if no site visit took plage. The completion is
defined as the signature of an Action MemOTandum, the date; of a memorandum to
the file documenting the decision not to perform a removal action, or signature of
the Site Evaluation Report. The removal investigation start and completion dates
•••• must be entered into WasteLAN. This is a SCAP reporting nieasure. Accpmplish-
16-Renuwals
-------
ments are reported site specifically in WasteLAN using event (C2101) type "RS".
Removal investigations at NPL sites are tracked on a calendar year basis.
* NPL and Non-NPL Removal Completions - A removal is complete when the
conditions specified in the Action Memorandum have been met even if the OSC
determines that additional response work may be necessary. The definition of
' accomplishment for a Removal Completion depends on the lead.
* Fund-financed - Completions are counted when the actions specified in the
Action Memorandum are complete, the contractor has demobilized and left die
site, as documented in a POLREP, and no additional ERCS expenditures are
anticipated for the action, as documented in a POLREP and recorded in
WasteLAN.
* PRP-financed - Completions will count when the Region has certified, by enter-
ing a date in WasteLAN, that the PRPs or their contractors have completed a
removal action and fully met the terms of an AO, CD, or judgment.
This is a SCAP reporting measure. Accomplishments are reported based on
combined Fund and PRP-financed and first and subsequent NPL and non-NPL
removal completions. Projections on the number of NPL removal completions are
placed in the Targets and Accomplishments portion of the CERHELP non-site data
system. The removal event qualifier (C2103) is to be recorded in WasteLAN.
* Administrative Orders Issued for Removal and RI/FS - Administrative Orders
(AOC and UAO) are enforcement tools through which PRPs agree to or are
compelled to assume responsibility for removal actions. Section 104/106/122
Administrative Orders (AOC and UAO) issued by EPA for PRPs to conduct
removal actions and/or RI/FSs should be reported. Credit for the order is based on
the date the order is signed by the Regional Administrator as recorded in
WasteLAN. Projections for AOs for removal actions are made in the Targets and
Accomplishments portion of the CERHELP non-site data base. This is a SCAP
reporting measure.
ERNS Tne Emergency Response Notification System (ERNS) is a nationwide, centralized
database supported by EPA, the U.S. Coast Guard (USCG) and the Department of Trans-
portation (DOT) and maintained by the Transportation Systems Center (TSC). This
information-sharing network documents every release notification received by the Na-
tional Response Center (NRC), EPA Headquarters and Regional offices, and USCG.
ERNS is a documenting system, not a tracking system. Only the initial notification of
release is documented, not the actions performed on the site. ERNS contains information
on every reported release (including releases of non-hazardous substances and releases
below RQ levels), not only those that result in removal action. ERNS also provides
assistance to Regional enforcement personnel in supporting day-to-day response opera-
tions and enforcing release reporting requirements.
Notification System Process Exhibit II-7 provides a diagrammatic representation of the ERNS release notification
process. Responsible parties, private citizens, or State or local officials may report a
release to the NRC. The NRC documents the notification and relays die data to the
appropriate OSC for review and response determination. In the event that EPA or USCG
js the first to be notified, live notified agency will document the release incident data and
relay the information to the appropriate OSC for response determination. When the EPA
Region is the notified agency, the release data must be transferred within two weeks of
receipt to the TSC for compilation and input into the NRC database.
Removuls-17
-------
EPA Regional ERNS EPA Regions and USCG field offices are responsible for:
Responsibilities
* Taking calls from parties or NRC reporting oil spills or chemical releases
* Documenting the notification using standard data collection form
* Making response determination
* Making follow-up calls to gather additional information
* Inputting all information into the system
* Relaying the release notification report within two weeks of receipt to the TSC
* Coordinating with States to facilitate their reporting into ERNS
These responsibilities ensure the efficient functioning of ERNS.
EPA Headquarters EPA Headquarters, in conjunction with USCG and DOT, are responsible for providing
Responsibilities overall direction and guidance for the development and operation of ERNS.
ERNS Phase II ERNS has been fully operational since October 1987. As of January 1989, a second phase
of ERNS became operational. Phase II verifies notification data and provides a direct link
to CERCLIS/WasteLAN.
IFMS The Integrated Financial Management System (IFMS) is a computerized database which
tracks costs associated with removal actions. Costs are categorized by site and type of
activity (e.g., oversight costs). OSCs and RPMs should use the IFMS to help monitor
costs at their site, especially if accumulated costs approach the $2 million limit on removal
expenditures set by CERCLA.
IS-Renwvuls
-------
Exhibit 11-7
ERNS Notification Process
RESPONSIBLE PARTY
DISCOVERS (REPORTS
RaEASE
PRIVATE CITIZEN
DISCOVERS 4 REPORTS
RaEASE
STATE A LOCAL GOVT
DISCOVERS! REPORTS
RaEASE
EPA/USCG
COLLECTS DATA FROM
REPORTER (STANDARD
NRC DATA ELEMENTS)
EPA/USCG
DOCUMENTS RELEASE
DATA
EPA/USCG
RELAYS RaEASE
DATATOOSC
EPA
EM/USCO
TRANSFERS DATA WITHIN
2 WEEKS IN REGION-
SPECIFIC FORMAT
USCG
INPUTS RELEASE DATA
INTO MS6 WITHIN 1 WEEK
OF RECEIPT AND TRANSFERS
DATA TO THE TSC
WAS
RELEASE REPORTED
TO THE NRC OR THE
EPA REGION/USCG
OSC
RECEIVES RaEASE
DATA
OSC
REVIEWS RELEASE DATA
GATHERS MORE DATA
OSC
MAKES RESPONSE
DETERMINATION
NRC
STOP
rsc
RECEIVES (LOGS
RECEIPT OF DATA
rsc
INPUTS RELEASE
DATA WTO
NRC DATABASE
NRC
COLLECTS DATA
FROM REPORTER
NRC
DOCUMENTS RELEASE
DATA
NRC
RELAYS HaEASE
DATATOOSC
NRC
COMPLETES ENTERING
RELEASE DATA INTO
NRC DATABASE
NRC
TRANSFERS RELEASE
DATA ENTRIES
TO TSC DAILY
TSC
INCORPORATES DATA
INTO RELATIONAL
DATABASE
rsc
GENERATES QUARTERLY
AND SPECIAL REPORTS
FOR EPA
t
TSC
SUBMITS REPORTS
TO EPA
t
RECEIVES REPORTS
|J
u
NRC
GENERATES REPORTS
I FOIA REPLIES
AS NECESSARY
j
STOP )
FOIA: Frxdorooltnfi
USCG: USCoulGuai
STOP
EPA: USEnvtttmmontal Prol«ctlon Agucy Rigfora
NRC: NMI«nlRM|>oitHC«it>r
TSC: DOT'S TrmpntaUon Sy$tem» Cwitw
-------
Section IV. Potential Problems/Resolutions
A. Civil Investigator
Support
Many Regions have identified civil investigators as a timely mechanism for gathering PRP
liability and financial information for removal cases. It has been noted that civil investiga-
tors are effective in a quality assurance capacity to oversee research being conducted by
enforcement project managers.
Region III has recognized the need for a civil investigator to work exclusively on removal
cases and has a full time civil investigator working in the field in the early stages of a case.
Regions with removal programs large enough to sustain one civil investigator full time
should investigate the possibility of creating such a position. This position allows the
investigator to become familiar with the types of investigative situations that removals
present and prevents conflicts in situations where priority is required by remedial cases.
Additionally, assigning a civil investigator exclusively to removal cases ensures the
investigator's availability to conduct PRP research when required immediately for a time-
critical removal.
B. Determining PRP
Financial Viability
Effective PRP searches should yield financial information on PRPs so that die determina-
tion can be made whether to pursue the CERCLA section 106 Administrative Order
option. To ensure PRP searches yield the necessary financial information. Region IX
includes a financial disclosure form with information request letters issued under section
KM (e) of CERCLA. Standard PRP search procedures in many Regions include a Dun
and Bradstreet system financial report and a review of records for bankruptcy, property
ownership, and financial status information.
C. Use of
Information Request
Letters
The 104(e) information request letter provides a means of gathering PRP liability and
financial evidence, including information on site history, the identity of additional PRPs,
and financial information. Financial information is necessary in determining whether to
issue an Administrative Order. Therefore, enforcement personnel should be involved in
removal cases at the outset to facilitate gathering as much information as possible before
issuance of an Administrative Order. Section 104 (e) letters also may be used in conjunc-
tion with demand letters, issued approximately 12 months after removal completion during
the cost recovery stage, to gather additional evidence and identify additional PRPs.
Removuls-19
-------
Section V. References
PoliCV ^ CFR, 55 Federal Register, "National Oil and Hazardous Substances Pollution Contin-
gency Plan" (March 8,1990).
Guidance OSWER Directive 9833.06, "Model Administrative Order on Consent for Removal
Response Actions" (March 1993).
OSWER Directive 9833.07, "Model Unilateral Administrative Order for Removal Re-
sponse Activities" (March 1993).
OSWER Directive No. 9836.2 "CERCLA Community Relations Mailing List" (February
6, 1989).
Courtney Price, "Functions and General Operating Procedures for the Criminal Enforce-
ment Program" (January 7, 1985).
OSWER Directive No. 9833.3A-1, "Final Guidance on Administrative Records for
Selection of CERCLA Response Actions" (December 3, 1990).
OSWER Directive No. 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19, 1987).
OSWER Directive No. 9834.10A, "Model Notice Letters" (February 7. 1989).
Lee Thomas, "Issuance of Administrative Orders for Immediate Removal Actions"
(February 21, 1984).
OSWER Directive No. 9833.0-1 A, "Guidance on CERCLA section 106(a) Unilateral
Administrative Orders for RD/RAs" (March 7, 1990). [Although not specific to removals,
this guidance contains useful, generally applicable guidance.]
OSWER Directive No. 9200.2-02, "Accelerated Response at NPL Sites Guidance"
(December 15, 1989).
Manuals EPA/540/R-92/009,-C
-------
Contacts Removal Procedures
Office of Emergency and Remedial Response, Emergency Response Division,
703-603-8760.
Administrative Orders
Office of Waste Programs Enforcement, CERCLA Enforcement Division, Guidance and
Evaluation Branch, 703-603-8940.
Cost Recovery and Indirect Costs
OWPE, CERCLA Enforcement Division, Cost Recovery Branch, 703-603-8920.
Rennivals-21
-------
Section VI. Activities Checklist
The following checklist has been developed to assist OSCs in conducting and coordinating
enforcement procedures between other enforcement personnel and contract support. OSCs
should determine that the following activities are conducted at all removal sites when
appropriate:
PRP Search, Identification, and Notification
Document or photograph visual evidence linking PRPs to a site, including drum labels,
shipping records, and vehicle registration
Conduct oral inquiries with PRPs and other observers (e.g., public officials, reporters)
at the site
Notify NEIC if criminal activity is suspected
Issue CERCLA section 104(e) information requests*
Prepare a baseline PRP search report
Initiate a title search*
Conduct off-site interviews*
Review relevant site records*
Prepare interim final PRP search report*
Notify PRPs orally of potential CERCLA liability (with written confirmation)
Notify PRPs in writing of liability*
Issue special notice letters*
Preparation for Negotiation
Establish the Administrative Record
Notify State prior to negotiations or issuance of an Administrative Order
Prepare negotiation strategy*
Draft Action Memo with enforcement addendum
Prepare draft Administrative Order on Consent (AOC)
Negotiate AOC or issue Unilateral Administrative Order (UAO)
Removal Action
Track daily costs and project future costs for Fund-lead removal actions
Make the Administrative Record publicly available within sixty days after the
initiation of on-site activities (emergencies and time-critical actions) or when Uie
Engineering Evaluation/Cost Analysis (EE/C A) is made available for public comment
(non-time-critical actions)
Attend or coordinate oversight meetings including initial, status, and completion
meetings, as well as site inspections
Oversee PRP compliance with the orders
1 This activity should be conducted if time permits.
22-Removuls
-------
Cost Recovery
Issue demand for payment of past and future costs plus interest
Document decision not to pursue cost recovery (if applicable)
Refer cost recovery cases to Department of Justice within twelve months of complet-
ing the removal action
Complete Interim Final PRP Search Report
Renwvuls-23
-------
III. COMPREHENSIVE SITE
PLANNING
-------
Chapter III
Comprehensive Site Planning
Section I. Description of Activity 1
Introduction 1
SACM 1
Site Management Plan 1
Role Definitions 1
Accountability Framework 1
Activity Timelines 1
Team Commitments to Objectives 2
Section II. Procedures and Interactions 3
A. Develop Initial SMP 3
B. Develop Detailed Plans 3
C. Contents of the Overview Component 3
D. Review and Approval of SMPs 3
E. Overview of SACM 4
F. Objectives of SACM 4
Role Definitions 4
Authorities for Site Activities 4
Enforcement Considerations 4
Site Assessment Planning 5
PRP Search Activities 5
Planning Non-time Critical Removal Actions 5
Coordination Activities 6
Planning RI/FS - Related Activities 6
Planning RD/RA - Related Activities 6
Section III. Planning and Reporting Requirements 7
A. Planning Reflected in SCAP/STARS 7
B. Budget Projections Based on Schedule and Classification 7
Section IV. Potential Problems/Resolutions 8
A. Overly-Optimistic Forecasts 8
B. Realistic Division of Operable Units 8
Section V. References 9
Guidance 9
Manual 9
Memorandum 9
Appendix
Short Sheet Guidance of SACM A1
Comprehensive Site Planning-i
-------
Chapter III
Comprehensive Site Planning
Section I. Description of Activity
Introduction Comprehensive site planning is an on-going process of developing and refining an overall
strategy to integrate removal, remedial, and enforcement activities at a site. It is a critical
element in the effective management of Superfund sites.
SACM ^PA has recently adopted a model for managing sites called the Superfund Accelerated
Cleanup Model (SACM). The goal of SACM is to make Superfund cleanups more timely
and efficient through an increased focus on the front end of the process and better integra-
tion of all program components. SACM is a process change that should be considered for
all Superfund activities during the site management planning phase. SACM will be
discussed in more detail later in this chapter.
Sit6 ManaQGITIGnt Plan ^or most Superfund sites, it is critical to establish an overall plan that integrates the
enforcement and response activities at the site and coordinates these activities in pursuit of
the specific site objectives. This Site Management Plan (SMP) should provide a roadmap,
including general site objectives and strategy. The lead Agency (EPA or the State) is
responsible for developing the SMP.
Role Definitions The SMP should define the roles and responsibilities of individual site team members.
These definitions should clearly communicate how each participant's activities and
deliverables contribute to the progress of the site strategy and should provide a structure
within which steady manageable progress can be made toward case objectives.
A Regional Decision Team (RDT) is responsible for determining/recommending the
approach that will be taken at a site. The RDT provides for broad participation across all
program elements while placing emphasis on teamwork and Regional and staff empower-
ment for developing response strategies and solving site problems. The RDT also has the
responsibility for ensuring that response actions are fully consistent with the requirements
of CERCLA and the NCP and that an emphasis on early actions will not jeopardize the
program's commitment to enforcement first. Regions have flexibility in designing an
RDT process that meets their specific needs.
Accountability Framework Individuals should be held accountable for their specific assigned responsibilities for
component activities. This should include the responsibility for coordinating other team
members' activities that are necessary to perform the component in question.
Activity Timelines Careful planning of timelines is especially necessary to successfully integrate enforcement
and response activities. To coordinate enforcement and response timelines, advance
planning must be based on a clear understanding of the projected time requirements of
each type of activity and a clear understanding of the interdependencies of the various
enforcement and response activities.
Comprehensive Site Plimnin^-1
-------
For example, to promote PRP agreements to undertake response actions, general notice
letters should be issued well in advance of RI/FS special notice letters. Moreover, to
promote an RD/RA settlement, EPA needs to provide the PRPs with the draft feasibility
study as soon as EPA approves it, updated PRP information as provided by the special
notice provision, past cost information, a draft Consent Decree, and a negotiation schedule
set by special notice. The preparation of these materials needs considerable lead time. To
avoid delays in the overall project schedule, the lead activities for all of these milestones
should be carefully planned out. All participants in these lead activities must be directing
their efforts to complete them in a timely, coordinated manner so that later case activities
dependent upon their completion are not delayed.
Team Commitments tO Because so many different participants are involved in moving Superfund cases and
Objectives decision-making to successful conclusions, it is important to be sure that all participants
are committed to common (or at least consistent) objectives for the site. To avoid last-
minute vetoes of site activities, this commitment should be obtained early in the site
development process; it should be ratified at high levels of management in all involved
offices; and it should be reaffirmed frequently, especially if site objectives undergo
revisions as site awareness and strategy develop.
2-Comprehensive Site Planning
-------
Section II. Procedures and Interactions
A. Develop Initial
SMP
It is important to develop and maintain a general roadmap to site activities to assure a
coherent context for planning and conducting the specific site activities. The SMP evolves
over time and becomes more precise as the site passes through different phases. Prior to
the Agency's use of SACM, the initial plan was developed when the site team was first
assigned to the site and the plan was keyed into the Region's long-term strategy as set
forth by the Regional SC AP. The timeline in Exhibit III-1 presents what has been the
Agency's view of key steps and optimum duration of phases in moving sites from identifi-
cation to remediation.
The flowchart in Exhibit II1-2 is an example of the level of specificity appropriate for the
general timeline for a site management plan. Critical points where the timeliness of
enforcement actions could affect response activity should be indicated on the timeline.
In adopting SACM, the Agency is looking to streamline and accelerate the cleanup
process. Thus, the timeline presented in Exhibit III-l will be in flux until die Agency has
more experience with implementing SACM. SMPs, however, are still an important
component of implementing SACM. Regions have established Regional Decision Teams
(RDTs) mat will develop response strategies for sites following receipt of initial site
information and as the assessment stage advances. The site management team will still
have day-to-day project management responsibility and the SMP will need to document
the decisions made by both teams in coordination.
B. Develop Detailed
Plans
At four key points in the Superfund process, more detailed plans should be developed and
approved by team members. The specific plans are intended to perform the same func-
tions as the overall roadmap — integrating enforcement and response planning in pursuit
of clearly articulated case objectives, defining roles and responsibilities of site team
members, establishing a framework for accountability for the specific activities, and
obtaining commitments of all participants to the objectives, activities and schedules. The
specific activity-oriented detailed plans are:
+ PRP Search Plan
+ RI/FS Negotiation Plan
* RD/RA Selection and Negotiation Plan, including Pre-Referral Litigation Report
* Litigation Management Plan.
C. Contents of the
Overview Component
Each SMP should have a general information and objectives component, the overview,
which is updated with current information at least as often as each new detailed plan is
prepared. At each point where a major change or addition is made to the overview or to
the detailed site plans, the items in the case overview should be reviewed, revised as
necessary, and included as part of the current SMP. In general, the overview provides the
site team and major PRP representatives, a response and enforcement history of the site,
response and enforcement objectives, and a schedule of major activities.
D Review and ^ne oriSina' SMP and all of its revisions and specific plans should be reviewed and
, _.._ concurred on by all team members. It is intended to be me primary vehicle for obtaining
Approval OT olVIrS management concurrence on case objectives and strategy. Therefore, team members must
be certain to obtain sufficient management review and approval to assure concurrence by
their management. Site teams thereby should be empowered to operate within the con-
Comprehensive Site Planning—3
-------
tours of approved SMPs with the expectation of complete management support for all
details of the plan unless the facts or policies underlying such support change materially.
Each Region must develop a management review and concurrence process that is appropri-
ate to its organizational structure and lines of authority. The involvement of Headquarters
and DOJ should be built into the Regional process in accordance with the operative
delegations or case-specific agreements.
E.
Overview of
SACM
Following is a brief description of the Superfund Accelerated Cleanup Model (SACM)
recently adopted by EPA. The appendix to this chapter contains the "Short Sheet" guid-
ances now available on SACM. The concepts discussed in this chapter are basic to the
new approach. For more information, refer to the short sheets.
F.
Objectives Of The approach involves implementing:
SACM * A continuous process for assessing site-specific conditions and the need for action;
* Cross program coordination of response planning
* Prompt risk reduction through early action
* Appropriate cleanup of long-term environmental problems
* Early public notification and participation
* Early initiation of enforcement activities.
SACM is expected to result in an increase of early risk reduction activities at both National
Priorities List (NPL) and "NPL-caliber" sites.
Role Definitions
In using this Model it is important that the roles and responsibilities of individual site team
members be defined. These definitions should clearly communicate how each
participant's activities and deliverables contribute to the progress of the site strategy and
should provide a structure within which steady manageable progress can be made toward
case objectives.
A Regional Decision Team (RDT) is responsible for determining/recommending the
approach that will be taken at a site. The RDT provides for broad participation across all
program elements while placing emphasis on teamwork and Regional and staff empower-
ment for developing response strategies and solving site problems. The RDT also has the
responsibility for ensuring that response actions are fully consistent with the requirements
of CERCLA and the NCP and that an emphasis on early actions will not jeopardize the
program's commitment to enforcement first. Regions have flexibility in designing an RDT
process that meets their specific needs.
Authorities for Site
Activities
Enforcement
Considerations
The only response authorities under CERCLA are the removal and remedial authorities;
any Superfund action mat is taken must meet the requirements of one authority or the
other. SACM encourages regions to think creatively about the way that these authorities
may be used under the NCP to achieve prompt risk reduction (early action) or to conduct
more complex, time-consuming remediations (long-term actions).
SACM does not change the Superfund Program's interest in Enforcement First. Coordina-
tion of site activities, including decisions and recommendations made by the Regional
Decision Team (RDT), should anticipate the activities required for enforcement and ensure
that they are carried out in a timely manner. EPA expects much of the early site assess-
4-Comprehenslve Site Planning
-------
Exhibit 111-1
Overview Flowchart of SARA Enforcement and Remedial Process
Timeline for Region I Enforcement and Remedial Process Elapsed Time in Quarters
PHASES OF
ACTIVITY
RP Search and
Notification
RI/FS Negotiation
Process
RI/FS Settlement
Process
RI/FS Implementation
Process
RD Negotiation
Support (il not
completed above or
have additional into
from RI/FS
ROD Process
RD/RA Negotiation
Process
RD/RA Settlement/
Referral Process .
RD/RA
Implementation
Cost Recovery
2
Info, re
issu
RPS
Gener
^uest
*\
RPS
il Notice
<
RPS
issued
RNS
ELAPSED TIME IN QUARTERS
4 6 8 10 12 14 16 18
Issue SCR
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**
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Ir
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RI/FS
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Draft
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Gener
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Draft
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RI/FS
\
RI/FS
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^"Proposed^
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D = Re
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• =SC
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A will be assigned to the
at the beginning of GN
eline illustrates activities
RP search to design start.
timeline does not address
recovery actions driven by
.. These may occur at any
t in the process.
sponsible Party Search
Negotiation Support
neral Notice
ecial Notice
FS Neg. Support Workplan
:S Negotiation
nsent Order
FS Work
0
. RA Negotiation
Preparation
Referral
Finding
Effective
st Recovery
;RA Implementation
AP Targets
3 Classification Report
Cost Recovery
1 1 1 I 1 1 1 1 1 1 1 I I I 1 I 1 1 I 1 1
The purpose of this flowchart is to provide an overview of the major remedial and enforcement activities required to perform a Superfund clean-up action under SAFiA.
-------
Exhibit 111-2
Sample Portion of Site Timeline*
RI/FS Obligation
Rl
Data Validation
Pre-FS Meeting
Draft FS
Public Comment FS
Public Comment
Draft ROD
ROD Briefing
ROD Approval
* This example covers only a specific point in the process on the overall site timeline
-------
ment activities to be Fund lead; however, response lead changes can occur at any of the
following points in the process:
1. During the site assessment activities
2. Prior to development of an Engineering Evaluation/Cost Analysis (EE/CA)
3. Prior to a removal action
4. Prior to a remedial investigation/feasibility study (RI/FS)
5. Prior to a Remedial Design/Remedial Action (RD/RA)
6. Prior to an RA contract solicitation, when funding die RA would have significant
implications for the Fund and when no significant delay will occur.
It is the RDT's responsibility to assure that the response lead can be passed to PRPs as
early as possible without delaying work at the site.
Under all of these scenarios EPA retains the responsibility to perform risk assessments, to
prepare Hazardous Ranking System (HRS) packages, and to make all response selection
decisions.
Site Assessment Planning Superfund assessment under SACM integrates previously separate removal and remedial
assessments into a single process. Under SACM the assessment processes run concur-
rently. Sites receive the appropriate level of effort to make assessment decisions, and sites
needing no further action under Superfund are designated as Site Evaluation Accom-
plished (SEA). Whenever possible, assessment activities are conducted concurrently with
response and enforcement actions. The basic principles of SACM build upon the need to
eliminate redundancy and expedite the Superfund process.
SACM promotes performing risk assessment and RI activities earlier in the assessment
process for a site where data indicate remedial action will be needed. Once Rl activities
begin, assessment activities continue concurrently to collect sufficient information to
determine the site score for possible listing on the NPL.
PRP Search Activities As a general rule, PRP search activities should begin as soon as the Region decides mat a
response action is likely to be required at the site. Once Regions have decided to begin
PRP search activities, they are encouraged to adopt a phased PRP search approach. The
initial phase should focus on establishing liability for PRPs about whom information is
most readily available from site assessment activities and other sources. The search
should then be extended to address other PRPs. In conducting PRP searches. Regions
should coordinate with other parts of the program and with the States.
Planning Non-time Critical When identifying appropriate sites for non-time-critical removal actions, Regions may
Removal Actions wish to consult with Headquarters. In order to assure consistent use of non-time-critical
authority, Regions must consult with Headquarters on every non-time-critical removal
costing over $5M (both Fund and PRP lead).
Because these removals are not time critical, in many instances PRPs will have been
identified and negotiations for a PRP lead action will be part of the process. Regions
should use special notice letters for non-time-critical removals when they believe that
settlement would be facilitated.
For Fund lead, Regions must consult with Headquarters prior to taking an early action that
will require funding beyond what the Region has in its allowance. Regions must also
follow the existing rules for justifying and obtaining exemptions for removal actions
estimated to cost over $2M or exceed one year in duration. When a State does not partici-
pate in the conduct and financial support of a Fund lead non-time-critical removal actions,
the RDT must evaluate whether the urgency and need are great enough to justify the loss
Comprehensive Site Plannin%-5
-------
of the State contribution. (Until such time as the authority for approving $2M waivers at
non-NPL sites is delegated to the Regions, Headquarters will have to be involved in this
decision on a site-by-site basis.) Until a final policy is developed. Headquarters will
generally support projects costing less than $5M, as long as there is appropriate justifica-
tion, even if a State is unable to participate. Headquarters will also consider projects
costing more than $5M, but there will have to be a compelling case for undertaking the
work in the absence of a State contribution.
Coordination Activities The overall plan must also ensure good State coordination and suitable community in-
volvement. SACM maintains Superfund's emphasis in these areas, so response action
planning should incorporate appropriate timeframes for their implementation.
Planning RI/FS • Related When the Region is conducting an SI/RI/FS or any series of actions containing an RI/FS,
Activities ^ie admul'strative record file must be made available at the point when work characteristic
of an RI/FS begins. In order for the record to be ready at this point, Regions should begin
the compilation process when the RDT decides that an RI/FS is a part of the activity to be
undertaken.
CERCLA and current EPA guidance encourage the use of special notice letters or issuance
of waivers for RI/FS. When Regions anticipate conducting these response actions com-
bined with others, for example an SI/RI/FS, they should use special notice letters if they
believe that settlement would be facilitated.
Planning RD/RA - Related CERCLA and current EPA guidance encourage the use of special notice letters or issuance
Activities of waivers for RD/RA. When Regions anticipate conducting these response actions
combined with others, for example an RD/RA in conjunction with a non-time-critical
removal, they should use special notice letters if they believe that settlement would be
facilitated.
6-Comprehensive Site Planning
-------
Section III. Planning and Reporting Requirements
A PlanninQ Comprehensive site planning and the SCAP/STARS process serve a common purpose.
Rof lortarl 'n ^°^ ensure a stea
-------
Section IV. Potential Problems/Resolutions
Overly- RPMs should carefully scrutinize task completion forecasts to detennine whether they
fintimktir Fnroractc realistically project future enforcement activity. Overly-optimistic forecasts may create
" expectations that cannot be met. As a consequence, the orderly tlow of resources to the
Region could be disrupted.
B R63liStJC Division ^ie Agency bases its budget allocation on the number of operable units at a particular site.
t e\ ui RPMs must carefully follow Agency guidance in identifying and reporting the number of
of Operable Units operable units at Uie site.
8-Comprehensive Site Planning
-------
Section V. References
OSWER Directive No. 9851.3. "Integrated Timeline for Superfund Site Management"
(June 11, 1990).
OE/OWPE (Strock and Clay), "Pre-Referral Negotiation Procedures for Supertund
Enforcement Cases" (October 12, 1990).
OSWER Directive 9203.1-051, "SACM Short Sheets" (December 1992).
Manual OSWER Directive 9355.1 -1, Superfund Federal-Lead Remedial Project Management
Handbook, Chapters 2 and 3 (December 198h).
Region I, Enforcement and Remedial Activities Under SARA: A Training Manual,
Chapter 1 (May 1989).
Memorandum "Draft Transmittal of the Final Report and Work Products of the Supertund Enforcement
Management Issues Work Group," Attachment 1, "Introduction to Site Management
Planning," Bruce Diamond, Glenn Unterberger (January 5, 1989).
Comprehensive Sile Planning—9
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Appendix
-------
oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9203.1-051
December 1992
Status of Key SACM Program
Management Issues — Interim
Guidance
Office of Emergency and Remedial Response
Office of Waste Programs Enforcement
Office of Enforcement
Intermittent Bulletin
Volume 1 Number 1
The purpose of the Superfund Accelerated Cleanup Model (SACM) is to make Superf und cleanups more timely and efficient.
This will be accomplished through more focus on the front end of the process and better integration of all Superfund program
components. The approach involves:
A continuous process for assessing site-specific conditions and the need for action;
Cross-program coordination of response planning;
Prompt risk reduction through early action (removal or remedial);
Appropriate cleanup of long-term environmental problems;
Early public notification and participation; and
Early initiation of enforcement activities.
SACM is a process change that should be considered for all Superfund activities. Implementation of this policy will be
consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). Overall Superfund priorities remain the same: deal
with the worst problems first; aggressively pursue enforcement; and involve the public and relevant State agencies at all
appropriate stages of the work.
Status of Key SACM Program Management Issues -
Interim Guidance
SACM raises a number of management-related issues
which require reconsideration of the current ways
Headquarters and Regions do business in budget
planning and execution, reporting accomplishments,
measuring performance, contracting, training, distribu-
tion of responsibility, and communications. This SACM
Program Management Update will describe activities
underway, planned, and recently completed to refocus
Superfund's program management systems to support
SACM implementation.
Regional Target (SCAP/STARS)
Flexibility
To allow greater Regional flexibility
in implementing Superfund site
cleanups, SACM will require ^.
changes in the program's targets CO
and measures under the Superfund
Comprehensive Accomplishments
Plan (SCAP) and the EPA Strategic
Targeted Activities for Results Sys-
tem (STARS). FY93 program mea-
* . . i _ i _ . _ j
Faster... C/eaner...Safer
the Office of Policy Planning and Evaluation (OPPE) ap-
proved an Office of Solid Waste and Emergency Response
(OSWER) request to allow the program maximum flexibil-
ity to grant target relief.
Granting FY93 target relief requires the Regions to pro-
vide, on a case-by-case basis, a good resource-based ratio-
nale which clearly shows work commensurate with the
targeted measure. For example, the Office of Waste Pro-
grams Enforcement (OWPE) has proposed to grant SC AP /
STARS target relief for Remedial Design/Remedial Action
(RD/RA) settlement where the Region implements a non-
time-critical removal with an estimated clean-up
value of greater than $2 million. The Office of
Emergency and Remedial Response
(OERR) has proposed to grant target
relief for remedial action starts where
the Region conducts a large (>$2
million) non-time-critical removal
instead.
Headquarters and the Regions
have started developing new FY94
SCAP/STARS measures. These
new measures will reflect the pro-
gram changes brought by SACM,
—: ~—«~i*« fl^x/iKiliH, frt rloan nn
leuivoirtiv^. i i^piugian.n.ca- r-~ —— gr".~, ~ ,
sures and targets were developed too early to incorporate and will provide the Regions greater flexibility to clean up
key aspects of SACM. To prevent the FY93 STARS/SCAP "NPL-caliber" sites more efficiently. Headquarters will
measures from impeding the implementation of SACM, transmit a proposal of draft FY94 measures to the Regions
-------
for review in January 1993. This package will be a basis for
discussion during the Program Management meeting in
February 1993. The intention is to complete a comprehen-
sive revision of STARS /SC AP targets and measures so that
SACM implementation is fully supported while reducing
the total number of Regional targets.
National SACM Evaluation Measures
Baseline national criteria need to be established to analyze
and evaluate the success of SACM in improving the time-
liness and cost-effectiveness of Superfund cleanup actions.
Existing Superfund time duration trend measures will be
reevaluated to ensure they effectively document the
program's baseline and capture incremental changes. De-
velopment of Superfund risk reduction measures is critical
to the program's ability to report achievements of early
action and long-term site cleanups. Existing Superfund
environmental indicators will be the starting point for
measuring risk reduction consistently for both early ac-
tions and long-term responses. These measures will allow
us to identify the extent to which SACM projects and
overall program changes linked to SACM implementation
are measuring up to the overall objectives of SACM. These
measures may also identify areas in which the SACM
approach can be refined as full implementation proceeds
in 1994.
In addition, there is a need to reach agreement on overall
measures of program performance that will communicate
meaningful program results to Superfund's customers.
Ongoing communication initiatives are being reexamined
to consider any refinements that are called for with the
SACM program changes.
Workload Model
The workload models were frozen in FY91 and FY92, and
are frozen for FY93. With SACM, mere is a need to deter-
mine the future relationship between FTE workload/pric-
ing factors and future program goals. To date, Headquar-
ters' efforts have focused on generating a consensus on
revising/reopening the Superfund workload models.
The Regions provided input on whether the models should
be reopened. Six Regions favored reopening/revising the
models, two proposed that a new, less resource intensive
mechanism for distributing FTE be pursued, and two
opposed reopening/revising the models. The Regions also
made two key recommendations: the models should not be
reopened until FY95, and the family of Superfund models
(program, enforcement, and Federal facilities) should be
integrated.
In preparation for the February 1993 Program Manage-
ment meeting, Headquarters plans todraftanapproach for
addressing the model changes based on the Regional and
Headquarters correspondence to date. This proposal will
be the point of departure for a break-out/discussion ses-
sion during the meeting. The goal is to close the Program
Management meeting with a joint approach to revising the
Superfund workload models.
In addition, as was identified during the initial SACM
planning meetings, it is critical that Regions evaluate their
existing workforce skill mixes and identify cross-training
and workforce development activities that are needed to
effectively implement SACM.
Budget Flexibility
Beginning with the FY92 budget, Superfund monies have
been apportioned between "Cleanup," "Enforcement,"
and "Support," with control subtotals for each category,
and a narrow definition of cleanup. Regions need more
flexibility in resource utilization man the budget process
has provided to streamline and accelerate the cleanup of
Superfund sites under SACM. One of the most critical
areas involves the cleanup/support budget category. For
FY94 OERR recast the Superfund Response budget, taking
into account Sacm, in a way that considerably broadens the
definition of cleanup.
Though the broader definition of cleanup was developed
for the FY94 budget submission, it has been implemented
in the FY93 enacted budget. A new advice of allowance
(AOA) category has been added to the Cleanup category.
The new AOA is site characterization; it includes all site
assessment and remedial analysis (e.g., aerial photo, hy-
dro-geo work) funding, and creates more Regional fund-
ing flexibility in these categories. This change significantly
bolsters the Agency's ability to support the funding needs
of the integrated assessments called for under SACM.
Greater flexibility among the various response activities is
also needed. As an example, a Region that has planned a
-------
remedial action at a given site and identifies an opportu-
nity to more quickly reduce risks via an early action must
have access to die funds required to implement this action.
As such, the program has set aside $50 million of die
remedial action budget to encourage increased risk reduc-
tion at NFL sites through early action activities. The FY92
removal budget was successfully increased to support
SACM early action projects. As new opportunities for
flexibility present themselves we will continue to work
with the OSWER senior budget officer, comptroller, and
Office of Management and Budget (OMB) to further in-
crease budget flexibility.
Program Priorities
Implementation of SACM requires that overall Superfund
program priorities be reexamined. The Superfund Program
Management Manual and Agency Operating Guidance are the
key documents that lay out these integrated program
priorities. The FY93 Program Management Manual was re-
vised to incorporate FY93 SACM implementation activi-
ties into overall program priorities.
SACM has modified the way we think of the Superfund
universe. Traditionally, sites were distinguished primarily
by whether or not they were listed on the National Priori-
ties List (NPL). EPA typically conducts only emergency
and time-critical responses at non-NPL sites. EPA does not
intend to alter significantly its traditional approach to
addressing non-NPL sites not expected to qualify for list-
ing.
In contrast, die program will seek to invest resources
earlier in NPL-caliber sites to conduct integrated assess-
ments and early actions. For sites currendy on die NPL,
EPA intends to take advantage of opportunities to conduct
early actions and accelerate long-term responses. Thus, it
may be useful to tiiink of die Superfund universe under
SACM as consisting of (1) non-NPL sites which EPA screens
and takes needed emergency/time-critical actions; (2) NPL
caliber sites where EPA conducts integrated assessments
and early actions; and, (3) NPL sites where EPA conducts
die full range of Superfund resp
-------
Communicating Program Accomplishments
Considerable effort has been undertaken to communicate
the goals/objectives, plans, and expectations for imple-
menting SACM to other Federal and State agencies, other
EPA Offices, critical external groups including Congress,
environmental and trade groups, and others. We need to
seek and incorporate feedback from these groups into our
implementation efforts, and regularly communicate the
program's progress to this audience.
NOTICE: The policies set out in this fact sheet are not final
Agency action, but are intended solely as guidance. They
are not intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the United
States. EPA officials should follow the guidance provided
in this fact sheet, or may act at variance with the guidance,
based on an analysis of site-specific circumstances. The
Agency also reserves the right to change this guidance at
any time without public notice.
Status of Key SACM Program Management Issues
- Interim Guidance
This paper is one of five fact sheets published by EPA
under publication number 9203.1-051 (Volume 1,
Numbers 1-5) to describe the Superfund Accelerated
Cleanup Model (SACM) and should be reviewed in
conjunction with the other SACM fact sheets. Re-
gions are encouraged to contact the following indi-
viduals for information on program management
issues: Dave Evans (703) 603-8885 in OERR; Tai-ming
Chang (703) 603-8965 in OWPE (SCAP/STARS and
contracts); David Chamberlin (202) 260-4118 in OWPE
(workload model and budget); or Rene Wynn (202)
260-3025 in OFFE for further clarification, sugges-
tions or comments.
There are two other important sources of informa-
tion: "SACM concept paper" (8/5/92) and Guidance
on Impkmentation of the Superfund Accelerated Cleanup
Model Under CERCLAand theNCP [OSWERDirective
No. 9203.1-03 (7/7/92)]. General SACM information
can be obtained by calling me Superfund Document
Center (202) 260-9760.
-------
c/EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9203.1-051
December 1992
Early Action and Long-Term Action
Under SACM — Interim Guidance
Office of Emergency and Remedial Response
Office of Waste Programs Enforcement
Office of Enforcement
Intermittent Bulletin
Volume 1 Number 2
The purpose of the Superfund Accelerated Cleanup Model (SACM) is to make Superfund cleanups more timely and efficient.
This will be accomplished through more focus on the front end of the process and better integration of all Superfund program
components. The approach involves:
A continuous process for assessing site-specific conditions and the need for action;
Cross-program coordination of response planning;
Prompt risk reduction through early action (removal or remedial);
Appropriate cleanup of long-term environmental problems;
Early public notification and participation; and
Early initiation of enforcement activities.
SACM is a process change that should be considered for all Superfund activities. Implementation of this policy will be
consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). Overall Superfund priorities remain the same: deal
with the worst problems first; aggressively pursue enforcement; and involve the public and relevant State agencies at all
appropriate stages of the work.
Response Goals
The primary goals of an early action are to achieve prompt
risk reduction and increase the efficiency of the overall site
response. The main goal of a long-term action is to attain an
effective, final site cleanup.
Prompt and Effective Risk Reduction
The only response authorities under CERCLA are removal
and remedial. Any Superfund clean-up action that is taken
must meet the requirements of one authority or the other.
SACM encourages Regions to mink creatively about the
way these authorities may be used under the NCP to
achieve prompt risk reduction (early action) or to conduct
more complex, time-consuming remediations (long-term
action). Take, for example, a site where sub-
stantial soil contamination threatens a
drinking water aquifer. Traditionally,
no response action might have been ^
taken until the study of and plan- ^^
ning for all the site work was
complete. Under SACM, the Re-
gion should consider taking an
early action to eliminate the soil
•jroblem through a non-time-
critical removal or an early re-
medial response, as appropriate.
Of course, if the soil poses a sig-
nificant threat (e.g., human di-
Faster... C/eaner...Safer
rect contact), an emergency or time-critical removal may be
warranted. SACM is anticipated to result in an increase of
early risk reduction activities at both National Priorities
List (NPL) and "NPL-caliber" sites.
A Regional Decision Team (RDT) is responsible for deter-
mining/recommending the approach that will be taken at
a site. The RDT should not be involved in response deci-
sions for most emergency and some of the more time-
critical removals, as these actions will be taken within the
normal removal implementation process. However, the
RDT should stay apprised of any emergency responses to
factor information into future response plans. A primary
consideration will always be what enforcement options are
available. An emphasis on early actions will not jeopardize
the program's commitment to enforcement first. The over-
all plan must also ensure good State coordina-
tion and suitable community involvement.
All response actions must meet the statu-
tory and regulatory requirements estab-
lished in CERCLA and the NCP. In
situations where a time-critical re-
sponse is warranted, established re-
moval mechanisms will continue to
be used. In less urgent situations,
non-time-critical removal actions or
early remedial actions may be used
to accomplish early risk reduction.
Long-term actions using remedial
authority are most appropriate
-------
for sites requiring complex source control or surface
or groundwater remediation.
Early Actions
Early actions are responses performed under removal or
remedial authority to eliminate or reduce human health or
environmental threats from the release, or threat of release,
of hazardous substances, pollutants,orcontaminants. These
risk reduction activities can be conducted as emergency or
time-critical removals, where quick response is necessary,
or as non-time-critical removals or early remedial actions,
in less urgent situations. These actions generally will take
less than five years and will not always achieve complete
site cleanup. The early action must meet all of the statutory
and regulatory requirements of whichever authority is
used (e.g., time and dollar limitations for removal actions
and State assurances for remedial actions) and should
generally not be started before the possibilities for enforce-
ment are pursued, depending on the urgency of the situa-
tion. In some cases, more than one early action may be
conducted during the course of work mitigating the threat
at a site.
Time-critical actions will be taken when a removal site
evaluation indicates that a response is appropriate and
must be initiated within six months. Even when there is
little time to get the response organized, Regions are al-
ways expected to consider enforcement options and to
work with State and local officials in conducting the re-
sponse. When a removal site evaluation indicates the need
for an early response and a planning period of at least six
months exists prior to the on-site initiation of the removal
activities, a non-time-critical removal action is an option. A
major change as a result of SACM will be that the number
of non-time-critical removal actions (i.e., those where there
is at least six months to plan) will likely increase because of
the greater emphasis being given to early risk reduction. In
order to ensure consistent use of non-time-critical author-
ity, Regions must consult with Headquarters on poten-
tially responsible party (PRP)-lead and Fund-lead non-
time-critical removals costing over $5 million.
The NCP establishes some special requirements for non-
time-critical removals, including the need to prepare an
Engineering Evaluation/Cost Analysis (EE/C A). (See NCP
Section 300.415 (m) (4) for additional requirements for non-
time-critical removals.) An EE/CA is a study to identify
and assess response alternatives. It is similar to, but less
comprehensive than, what is done during the Remedial
Investigation/Feasibility Study (RI/FS) phases of a reme-
dial action. The EE/CA must go through a public notifica-
tion and comment period to ensure all interested parties
have an opportunity to have input to the proposed re-
sponse. EPA is developing guidance on how to conduct a
non-time-critical removal action.
Sometimes it may be more appropriate to undertake early
actions with remedial authority. This may be likely for
National Priorities List (NPL) sites already far down the
remedial pipeline, enforcement lead sites where a consent
decree may be appropriate, sites outside the scope (techni-
cal or financial) or authority of a removal action, or sites
where State cost share, operation and maintenance or other
assurances may be important considerations. These expe-
dited remedial actions still require a Record of Decision
(ROD). The work can be done through a variety of con-
tracts discussed below under Response Selection Factors.
The RDT should ensure that an early action will be consis-
tent with any long-term action that may eventually be
required. This means that, especially for non-time-critical
removals and early remedial actions, opportunities for
treatment and permanence of remedy must be fully evalu-
ated. Furthermore, potential differences that may exist
between early action and long-term action data quality
objectives and risk assessment goals must be reconciled at
the outset. This can only happen if there is an emphasis
placed on good program coordination, particularly among
the participating Site Assessment Manager (SAM), On-
Scene Coordinator (OSC), Remedial Project Manager
(RPM), risk assessor, and enforcement/legal staff.
Long-Term Actions
Long-term response actions will usually be taken when
there are conditions requiring extensive site characteriza-
tion, where there are high costs, or where it will take more
than approximately five years to complete the work. The
majority of current NPL sites have some long-term re-
sponse component. Most groundwater remediation ef-
forts, many surface water remediation efforts, and most
large-scale soil remediation efforts would be expected to
take in excess of five years to complete or have complexities
that preclude early action approaches, alone, from being
used. In addition, remedies mat require extensive opera-
tion and maintenance activities may fall into the long-term
response category.
Identification of a remedial action as a long-term response
does not mean that all of the work can or will be deferred.
In many cases, even where there is no immediate threat, a
quick start to the long-term response will be necessary to
prevent site conditions from deteriorating (e.g., contain-
ment of a groundwater plume). In such circumstances, an
early action is appropriate if the site meets the NCP re-
quirements for a removal action or if an early remedial
action can be initiated.
Response Selection Factors
Under SACM, the RDT has considerable flexibility for
selecting/recommending me most appropriate approach
for a site. Many factors will enter into its deliberations. The
following is provided as a general overview of the differ-
ences between early and long-term actions.
Response Duration — A Region should be able to plan
for, implement, and complete an early action in less than
five years. Projects which will take more than five years
should generally be done as long-term responses using
remedial authority. If an action can be done quickly, but
there are extensive operation and maintenance require-
ments to ensure the reliability of the response (regard-
less of the cost of the O&M), then early or long-term
action under remedial authority should be considered.
It is removal program policy that protracted and costly
long-term post-removal site control is more appropri-
-------
ately conducted by the affected State, local unit of gov-
ernment, or Potentially Responsible Party (PRP). In
some cases, it may be done by the Superfund remedial
program through a ROD. (For additional information
on this removal policy see OSWER Directive 9360.2-02,
Policy on Management of Post-Removal Site Control, De-
cember 3,1990).
Cost—Since either removal or remedial authority may
be used, there is no maximum dollar cap on the cost of
an early action. Regions must always follow the existing
rules for justifying and obtaining exemptions for re-
moval actions estimated to cost over $2 million or ex-
ceed one year in duration. Also, Regions must consult
with Headquarters prior to taking an early action which
will require funding beyond what the Region has in its
allowance. Regions are also strongly urged to discuss
with Headquarters any situations which present par-
ticularly difficult issues or may be controversial with a
State or other interested parties.
Enforcement — The "Enforcement First" policy will
continue to be aggressively pursued under SACM. Re-
gions must take appropriate enforcement steps consis-
tent with removal and remedial policy and guidance.
This includes, but is not limited to, conducting PRP
searches, issuing notice letters, and negotiating with
PRPs to conduct an action through the use of adminis-
trative orders (unilateral or consent) or consent decrees.
The lead time available for non-time-critical removal
actions should allow for comprehensive PRP searches
and subsequent negotiations. For each site, an adminis-
trative record file must be established and made avail-
able to the public according to the schedule in the NCP.
Protection of Human Health and Environment — It is
critical that removal actions conducted at non-NPL sites
take into consideration the potential for future NPL
listing to ensure consistent goals are achieved, where
practicable. In cases where a non-time-critical removal
action will be the only or last action taken to clean up an
NPL or NPL-caliber site, the alternatives should be
evaluated on their ability to achieve clean-up levels
consistent with the remedial program and be protective
of public health and the environment.
ARARs Compliance — Under the NCP, applicable or
relevant and appropriate requirements (ARARs) must
be met during removal actions to the extent practicable
considering the exigencies of the situation. ARARs
should be identified and factored into the non-time-
critical removal process. Careful consideration of ARARs
is a key to ensuring that early actions are consistent with
possible long-term actions. (For additional information
on ARARs compliance during removal actions, see the
NCP section 300.415 (i) and Superfund Removal Proce-
dures, Guidance on the Consideration of ARARs During
Removal Actions, EPA/540/P-91/011, September 1991).
State Involvement — An early action must include
appropriate State involvement. This means there needs
to be continuing meaningful communication between a
Region and each State in order to ensure the highest
priority sites are being handled and there is no unneces-
sary duplication of effort. State ARARs must be met or
waived for remedial actions and met to the extent prac-
ticable for removal actions. For non-time-critical re-
moval actions costing over $2 million, Regions should
request State participation in the response action (e.g.,
funding, in-kind services). Although a State cost share is
not required under CERCLA section 104 (c) (3) for a
removal action, the absence of a State's financial partici-
pation may limit the capacity of EPA to fully fund
certain large dollar value non-time-critical removal ac-
tions. When a State does not participate in the conduct
and financial support of a Fund-lead non-time-critical
removal action, the RDT must evaluate whether the
urgency is great enough to justify the loss of the State
contribution. (Until such time as the authority for ap-
proving $2 million waivers at non-NPL sites is del-
egated to the Regions, Headquarters will have to be
involved in this decision on a site-by-site basis.) Until a
final policy is developed, Headquarters will generally
support projects costing less than $5 million, as long as
there is a good justification, even if a State is unable to
participate. Headquarters also will consider projects
costing over $5 million, but there will have to be a
compelling case for undertaking the work in the absence
of a State contribution. Response actions taken under
remedial authority must comply with established pro-
cedures for State involvement, including securing State
assurances for Fund-financed remedial actions. States
may apply for a cooperative agreement to conduct non-
time-critical removal actions (See40CFR Part35 Subpart
O, Cooperative Agreements and Superfund State Con-
tracts for Superfund Response Actions).
Public Involvement—Early and frequent involvement
of the public is pivotal to the success of expediting
cleanups under SACM. All applicable community rela-
tions requirements in the NCP must be met at both
removal and remedial actions. Site managers should
make sure the public has an opportunity for meaningful
input and that concerns are considered. As community
interest and awareness increase, it may be appropriate
to conduct additional community relations activities
beyond those required in the NCP. For example, field
personnel (OSCs, RPMs, SAMs, Community Relations
Specialists) could make themselves available to the pub-
lic, or meetings could be held in the community, during
times outside those that are typical (e.g., prior to the
initiation of or at the conclusion of on-site work).
Risk Management — Since removal and remedial ac-
tion levels and clean-up levels may differ, when making
risk management decisions for early actions it is impor-
tant that potential long-term response actions be consid-
ered. For emergency and time-critical removal actions,
Regional response personnel may utilize their Agency
for Toxic Substances and Disease Registry (ATSDR)
representative to obtain public health advice on poten-
tial action and clean-up levels in the form of a Public
Health Advisory or a Health Consultation. In planning
for non-time-critical removal actions, the Regional risk
assessor should be consulted for similar advice. It is
important that the RDT take into consideration the
potential for NPL listing and subsequent remedial ac-
tions in order to achieve consistent risk goals, where
-------
practical. For example, when performing a source re-
moval to mitigate a direct contact threat at a site that also
has a ground water threat, it may be prudent to consider
removal of additional soil contaminants consistent with
projected groundwater clean-up goals. This could elirru -
nate the need for additional source control actions dui-
ing future response actions. Furthermore, it could re-
duce the ongoing release of contaminants to ground
water, thereby reducing the time required to pump and
treat ground water.
Contracting Mechanism — Available contracting ve-
hicles and capacities will affect the strategy for conduct-
ing both early and long-term actions. Contract mecha-
nisms potentially available are site-specific contracts
(including the Pre-Qualif ied Offerers ProcurementStrat-
egy (PQOPS) contracts for incineration and solidifica-
tion), the Emergency and Rapid Response Services
(ERRS) contracts, the Alternative Remedial Contract
Strategy (ARCS) contracts, the Technical Enforcement
Services (TES) contracts, or accelerated contracting
mechanisms accessible from the U.S. Army Corps of
Engineers or the U.S. Bureau
of Reclamation. The time and
resources necessary to pro-
cure and administer these
contracts, and the individual
contract capacities, where
applicable, are factors that
must be considered when
evaluating response options.
A separate guidance short
sheet is currently being de-
veloped on how to access the
various contracts listed above.
time allows, the RDT with support of the designated site
manager should consider all of the response options avail-
able, State and community concerns, and the need for
future action before a response is initiated. The table below
gives a conceptual outline of activities generally consid-
ered to be either early actions and/or long-term actions;
however, it is not an exhaustive, definitive categorization.
NOTICE: The policies set out in this fact sheet are not final
Agency action, but are intended solely as guidance. They
are not intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the United
States. EPA officials should follow the guidance provided
in this fact sheet, or may act at variance with the guidance,
based on an analysis of site-specific circumstances. The
Agency also reserves the right to change this guidance at
any time without public notice.
Early Action
Either
Long-Term Action
Access Restrictions
Source Removals/
Containment
Surface Structures and
Debris
Data Quality Objectives —
When performing site assess-
ment activities, appropriate
data quality objectives should
be used for decisions in sup-
port of removal and/or remedial actions. Historically,
sampling investigations performed in support of re-
moval actions and remedial actions have had dissimilar
Quality Assurance/Quality Control (QA/QC) require-
ments and have focused on different media (i.e., wastes,
ground water, soil, etc.). As an element of SACM imple-
mentation, the RDT should ensure that sampling activi-
ties are coordinated between removal and remedial
actions. Site assessors may be able to take advantage of
lower costs and quicker turn-around times if an ad-
equate number of samples are also collected that will
meet other anticipated data uses. Sample collection and
analysis activities performed during removal actions
should be coordinated such that the data generated will
also support NPL listing and remedial actions, as appro-
priate.
Selecting a Response
A primary function of the RDT is to weigh what is known
about a site and recommend/select those actions which
address the threats in a timely and efficient manner. When
Source Remediation
Capping/Containment
Permanent/Temporary
Relocation
NAPL Source
Extraction
Ground Water Plume
Containment/Cleanup
Alternate Water Supply
Property Acquisition
Extensive Source
Remediation
Restoration:
Groundwater
Surface Water
Early Action and Long-Term Action Under SACM
— Interim Guidance
This paper is one of five fact sheets published by EPA
under publication number 9203.1-051 (Volume 1,
Numbers 1-5) to describe the Superfund Accelerated
Cleanup Model (SACM) and should be reviewed in
conjunction with the other SACM fact sheets. Com-
ments on this document should be directed to Mark
Mjoness of the Emergency Response Division (703)
603-8770.
There are two other important sources of informa-
tion: "SACM concept paper" (8/5/92) and Guidance
on Implementation of the Superfund Accelerated Cleanup
ModelUnderCERCLAand theNCP [OSWER Directive
No. 9203.1-03 (7/7/92)]. General SACM information
can be obtained by calling the Superfund Document
Center (202) 260-9760.
-------
&EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9203.1-051
December 1992
Enforcement Under SACM
— Interim Guidance
Office of Emergency and Remedial Response
Office of Waste Programs Enforcement
Office of Enforcement
Intermittent Bulletin
Volume 1 Number 3
The purpose of the Superfund Accelerated Cleanup Model (SACM) is to make Superfund cleanups more timely and efficient.
This will be accomplished through more focus on the front end of the process and better integration of all Superfund program
components. The approach involves:
A continuous process for assessing site-specific conditions and the need for action;
Cross-program coordination of response planning;
Prompt risk reduction through early action (removal or remedial);
Appropriate cleanup of long-term environmental problems;
Early public notification and participation; and
Early initiation of enforcement activities.
SACM is a process change that should be considered for all Superfund activities. Implementation of this policy will be
consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). Overall Superfund priorities remain the same: deal
with the worst problems first; aggressively pursue enforcement; and involve the public and relevant State agencies at all
appropriate stages of the work.
Overview
All actions taken under SACM must be consistent with
CERCLA and the NCP, and each response selection must
be adequately documented by an administrative record.
EP A's enforcement first policy will continue under SACM.
Potentially Responsible Parties (PRPs) are performing ap-
proximately 70 percent of the new work at NPL sites, and
EPA remains committed to maximizing PRP involvement
when applying the principles of SACM. Success-
ful enforcement under SACM will require
careful consideration of the nature and
timing of PRP participation in particu- v
lar. vC
/^
Major enforcement areas affected AJ >
by SACM include: w
CO
f~S
• The timing and methodol-
ogy of PRP searches;
• The timing and content of
negotiations with PRPs;
• Notice letters;
• Consultations for early actions;
State involvement in enforcement;
Faster... C/eaner...Safer
• De minimis settlements;
• The availability and adequacy of administrative
records; and
• Cost recovery and cost documentation.
This document highlights the need to maintain an enforce-
ment first stance and discusses appropriate approaches
for addressing the issues listed above.
Enforcement First
SACM does not change the
Superfund program's emphasis on
enforcement first. Coordination
of site activities, including deci-
sions and recommendations made
by the Regional Decision Team
(RDT), should anticipate the ac-
tivities required for enforcement
and ensure that they are carried
out in a timely manner so that the
response lead can be passed to
PRPs as early as possible without delaying work at the site.
EPA expects much of the early site assessment activities to
be Fund-lead. However, response lead changes can occur
at any of the following points in the process:
1. During the site assessment activities;
-------
2. Prior to development of an Engineering Evaluation/
Cost Analysis (EE/CA);
3. Prior to a removal action;
4. Prior to a Remedial Investigation/Feasibility Study
(RI/ES);
5. Prior to a Remedial Design/Remedial Action (RD/
RA);and
6. Prior to an RA contract solicitation, when funding the
RA would have significant implications for the Fund
and when no significant delay will occur.
EPA may take back the response lead from a PRP when the
Agency deems a lead change would be appropriate to
maintain response integrity or to protect human health
and the environment.
The Region should identify the earliest point that the PRP
search should begin and when negotiations should occur
at each site.
PRP Searches: Timing and Methodology
Conducting adequate PRP searches can be crucial when
preparing for negotiations and other enforcement activi-
ties. EPA does not anticipate mat SACM will lead to
changes in PRP searches for sites that require only emer-
gency or time-critical removal actions. However, SACM's
integrated site assessment process may lead to changes in
PRP search methodology for non-time-critical removals
and remedial actions for several reasons. First, because an
RI may begin with or during a Site Investigation (SI),
giving PRPs an opportunity to participate in the RI/FS will
require that PRPs be identified earlier in the process than
they are traditionally identified. Second, because the inte-
grated site assessment is envisioned to require less time to
complete than under the current process, mere may be less
time to develop liability information before a non-time-
critical removal or remedial design begins. In addition, the
greater emphasis on early risk reduction is expected to
increase the use of non-time-critical removals to address
some threats that previously were addressed with reme-
dial actions. This will mean mat there may be less time
available before initiation of the response man in the past.
For all of these reasons, there will be less time to conduct
the PRP search and an increased emphasis on Regions' PRP
search programs.
As a general rule, PRP search activities should begin as
soon as possible after the Region decides that a response
action is likely to be required at the site. PRP searches for
some sites, such as multi-generator landfills, may require
substantial effort. Early initiation of PRP search activities
may be valuable at these sites to ensure adequate time for
carrying out enforcement activities such as issuing general
notice letters. Many other sites, however, may require no
action beyond the initial site assessment activities. Expe-
dited searches at these sites probably would be unneces-
sary and not cost-effective in most instances.
Once Regions have decided to begin PRP search activities,
they are encouraged to adopt a phased PRP search ap-
proach that focuses first on establishing liability for PRPs
about whom information is most readily available from
site assessment activities and other available sources and
then expands to address the remaining PRPs. If a core
group of PRPs is identified before a discrete phase of a
combined site assessment, negotiations may begin for the
conduct of data collection associated with the site assess-
ment activities (i.e., SI, RI, FS, etc.), even if the Region
believes that additional PRPs may be found later. (Keep in
mind that under the current policy, EPA has the lead
responsibility for the site assessment activities - Prelimi-
nary Assessment (PA), SI, and Expanded Site Investiga-
tion (ESI). This should continue under SACM. PRPs may
collect data, but final responsibility for interpreting that
data in reports and making site decisions remains with
EPA.) Similarly, negotiations for conducting a response
action (i.e., RD/RA, removal, etc.) may be initiated with
known PRPs even if all PRPs have not been identified.
Once potential liability has been established for the core
group, the PRP search can be extended to the remaining
PRPs whose liability is more difficult or more time con-
suming to establish. Regions should share information
with known PRPs as soon as possible to facilitate PRP
organization.
In conducting PRP searches, Regions should coordinate
and share information with other parts of the program and
with States. Where the Regional office uncovers informa-
tion on PRPs as part of an emergency or time-critical action,
the RDT should make full use of the information from these
activities to support later enforcement actions at the site.
Similarly, site assessment should include PRP search ac-
tivities such as the documentation of evidence that identi-
fies owners, operators, and witnesses; the collection of
drum label information; the identification of the location
and condition of gsnerator records; and other activities
that may help establish liability or waste contribution. Site
assessment activities might include a more detailed or
targeted waste analysis to tie wastes to specific PRPs.
Where available, Regions should make use of States' au-
thority to search for and notice PRPs. Regions should
-------
consider writing a generic PRP search work assignment
that can be used for a number of searches, each of which is
initiated with a separate technical direction memorandum.
Coordination of the PRP search and other site activities will
require close communication between the PRP search team
and the RDT.
Negotiations: Timing and Content
Generally, it is anticipated mat by using the phased PRP
search approach and some of the additional techniques
listed above, there will be sufficient time before initiation
of non-time-critical removals and early remedial actions to
allow those actions to be PRP-lead. For example, if the RDT
decides, based on the early results of a PRP search, to
initiate a Fund-lead EE/CA to support a non-time-critical
removal action, the Region can continue PRP search activi-
ties during the EE/CA. Upon completion of the EE/CA,
ti e RDT can decide, based on the supplemented PRP
search, whether to seek PRP participation in the non-time-
critical removal action. There may be even more time for
the PRP search if it begins during an emergency or time-
critical removal action, or during the SI.
With the exception of non-time critical removals, it may be
appropriate in some cases to conductadditional PRP search
activities before initiating a response action at a site if the
Region believes that a more thorough PRP search will
increase the likelihood of settlement (for example, by iden-
tifying more PRPs). Any delays in work should be brief.
Establishing liability against additional PRPs may have
other benefits such as similar treatment of all PRPs, re-
duced risk of contentious cost recovery actions, and con-
servation of the Fund.
The Region should identify logical points during the site
assessment process when negotiations with PRPs should
be considered. Some of the major criteria for this decision
include:
1. PRPs:
a. the availability of viable parties for which Regions
have liability evidence;
b. the degree to which the identified PRPs appear
willing to settle; and
c. the ability of PRPs to conduct response activities.
2. Site conditions and work to be performed:
a. the risk posed by the site and the need to move
forward with the response quickly;
b. the probable sequence and nature of cleanup ac-
tivities scheduled for the site; and
c. the action to be negotiated.
3. Cost:
a. if the activity to be negotiated is a removal costing
more than $2 million, enforcement will minimize
the need forwaiversunderCERCLASectionl04(c);
and
b. State matching funds for remedial actions at NPL
sites are not required if PRPs conduct remedial
actions under, for example, a consent decree or
unilateral administrative order.
The following examples show some stages in the process
where negotiations may be appropriate, and the possible
scope of the negotiations:
1. The initial assessment indicates that there is a hazard-
ous substance release at the site and there is a high
probability that the site may be listed on the NPL. In
addition, some removal action is needed. In this case,
the Region could negotiate with PRPs to perform the
site assessment data collection activities —including
any necessary sampling— and the EE/CA or RI/FS.
The Region could also include performance of the
EPA-selected removal action in the negotiations. Keep
in mind that although PRPs may conduct sampling
and data collection, EPA retains responsibility for
decision making.
2. The initial assessment indicates that a non-time-criti-
cal removal action should be taken. The Region could
negotiate an order with the PRPs for the EE/CA, and
in some cases could include the eventual non-time-
critical removal action in the order.
3. Theinitialassessmentshowsthatadditionalsiteevalu-
ation is needed to determine if the site will require
any action (early action or long-term action). In most
cases EPA should continue performing the site as-
sessment activities while continuing the PRP search.
Negotiations should occur after a determination is
made that a time-critical removal, an EE/CA, or an
RI/FS is needed.
Under all of these scenarios EPA retains the responsibil-
ity to perform the risk assessment for removal and reme-
dial actions, to prepare Hazard Ranking System scoring
packages, and to make all response selection decisions.
Notice Letters
CERCLA and current EPA guidance encourage the use of
special notice letters (or issuance of waivers) for RI/FSs
and RD/RAs. When Regions anticipate conducting a com-
-------
bined SI/RI/FS, they should use special notice letters if
they believe that such letters could facilitate a settlement.
Regions also should use special notice letters for non-time-
critical removals when they believe mat such letters could
facilitate a settlement.
A special notice letter initiates a moratorium on response
activity and enforcement. Such moratoria generally last 90-
120 days (if EPA receives a good faith offer from the PRPs
within the first 60 days of the moratorium). Therefore,
when Regions expect that they will be issuing special
notice letters, the letters should be sent out far enough in
advance of the planned activities so that work is not
significantly delayed. Certain investigatory and planning
activities set forth in Section 104(b) of CERCLA should
occur during the negotiation moratoria.
Consultations for Early Actions
In implementing SACM, careful site and case selection is
important. When identifying appropriate sites for non-
time-critical removal actions, Regions may wish to consult
with Headquarters.
Regions must follow the existing rules for justifying and
obtaining exemptions for removal actions estimated to cost
over $2 million or exceed one year in duration. Also,
Regions must consult with Headquarters prior to taking an
early action which will require funding beyond what the
Region has in its allowance.
When a State does not participate in the conduct and
financial support of a Fund-lead non-time-critical removal
action, the RDT must evaluate whether the urgency and
need are great enough to justify the loss of the State
contribution. (Until such time as the authority for approv-
ing $2 million waivers at non-NPL sites is delegated to the
Regions, Headquarters will have to be involved in this
decision on a site-by-site basis.) Until a final policy is
developed, Headquarters will generally support projects
costing less than $5 million, as long as there is a good
justification, even if a State is unable to participate. Head-
quarters also will consider projects costing over $5 million,
but mere will have to be a compelling case for undertaking
the work in the absence of a State contribution.
In order to ensure consistent use of non-time-critical au-
thority, Regions must consult with Headquarters on PRP-
or Fund-lead non-time-critical removals costing over $5
million.
If an early action under SACM presents particularly diffi-
cult issues or may be controversial with States, PRPs,
communities or other interested parties, the Regions are
strongly encouraged to consult with the appropriate Re-
gional coordinator at Headquarters. Regional staff respon-
sible for public involvement may be consulted to assist in
gauging the level of public interest.
State Involvement in Enforcement
State capabilities and authorities differ. Each Region should
work with each of its States to develop a general strategy
for enforcement and the manner in which the State will be
involved. Actions planned under State enforcement-lead
must be under documents enforceable under State law and
overseen by the States. Sites may be designated as State-
lead if the Region agrees and the State has the capability
and authority under State law to undertake the action.
States should be kept informed of negotiations concerning
site assessment activities and early actions to the same
extent that they are notified and kept informed currently
under CERCLA Section 121(f) and the NCP.
Late-identified PRPs
When the decision is made to take either a Fund-lead or
PRP-lead action, and the Region expects that additional
PRPs will be identified subsequent to initiation of the
action, the Region should take steps to provide some type
of constructive notice to PRPs who may be found at a later
date (that is, "late identified" PRPs). For example, Regions
could send letters providing information about a site to
prospective PRPs. Regions might also place an announce-
ment of site activity or of availability of the administrative
record file in a major local newspaper and the Federal
Register. (A Federal Register notice generally would be more
effective man newspapers for reaching PRPs located out-
side the area of the site and the newspaper circulation
area.)
De Minimis Settlements
SACM is expected to produce more site information earlier
than in the past, allowing Regions to develop de minimis
settlements earlier. In some cases, Regions will pursue
PRP-lead early actions before developing the waste-in lists
and volumetric rankings normally needed for de minimis
settlements, making de minimis settlements at that time
less likely. In such cases, de minimis settlements may still
be developed prior to a subsequent early action decision
(Action Memorandum, Record Of Decision) when the
required information becomes available. Regions should
follow EPA guidance on early de minimis settlements
(includingOSWERDirectiveNumber9834.7-lC)andstrive
to develop such settlements as early in the process as
possible.
-------
The Department of Justice
SACM does not change the delegations under CERCLA.
The Department of Justice (DOJ) should be consulted for
enforcement strategy planning when judicial enforcement
of an administrative order is likely, consent decrees are
planned, and certain de minimis and cost recovery activi-
ties are contemplated (e.g., DOJ must concur on de minimis
and cost recovery settlements where the total response
costs for a site exceed $500,000).
Administrative Records
The administrative record, required under CERCLA, con-
tains the documents that form the basis for the selection of
a response action and serves as the basis for judicial review
of EPA's response action. High quality administrative
records are necessary to ensure the defensibility of re-
sponse decisions made under the expedited procedures of
SACM and are particularly important for SACM projects
that may set precedents. Regions must establish an admin-
istrative record for each response action in accordance
with CERCLA, theNCP,andOSWERadministrativerecord
guidance (OSWER Directive Number 9833.3A-l). All deci-
sions concerning the selection of the appropriate response
action should be documented in the administrative record
file in accordance with EPA guidance. In particular, the
administrative record should includedocumentation show-
ing that the action taken is not inconsistent with the NCP.
CERCLA also requires mat EPA provide the public (in-
cluding PRPs) with an opportunity to participate in the
development of the administrative record. According to
the NCP Subpart I, the administrative record file for a non-
time-critical removal must be available for public inspec-
tion when the EE/CA is made available for public com-
ment. For time-critical removals, the administrative record
file must be made available within 60 days after the start of
on-site removal activity. The administrative record file for
the selection of a remedial action must first be made
available when the RI/FS begins. When the Region is
conductingacombinedSI/RI/FS,theadministrativerecord
file must be made available at the point when work char-
acteristic of an Rl/FS begins. In order for the record to be
ready for public inspection when the RI/FS begins, Re-
gions should begin compiling the administrative record
file when the RDT decides a combined SI/RI/FS is needed.
Cost Recovery and Cost Documentation
SACM may increase the number of cost recovery actions
subject to the removal statute of limitations (SOL) because
more sites may be addressed with non-time-critical remov-
als than in the past. The SOL for removals is three years
from a removal completion, unless a remedial action is
initiated within three years of the completed removal.
Early remedial actions would fall under the remedial SOL
which is six years after initiation of physical on-site con-
struction of the remedial action.
Documentation of cost and work performed needs to be
compiled whenever cost recovery actions are taken. EPA's
past costs should be sought in all negotiations with PRPs
for response work at SACM sites. The cost recovery rule is
expected to assist in defining documentation requirements.
NOTICE: The policies set out in this fact sheet are not final
Agency action, but are intended solely as guidance. They
are not intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the United
States. EPA officials should follow the guidance provided
in this fact sheet, or may act at variance with the guidance,
based on an analysis of site-specific circumstances. The
Agency also reserves the right to change this guidance at
any time without public notice.
Enforcement Under the Superfund Accelerated
Cleanup Model (SACM) - Interim Guidance
This paper is one of five fact sheets published by EPA
under publication number 9203.1-051 (Volume 1,
Numbers 1-5) to describe the Superfund Accelerated
Cleanup Model (SACM) and should be reviewed in
conjunction with the other SACM fact sheets. Com-
ments on this document should be directed to Maria
Bywater of the Office of Waste Programs Enforce-
ment (703) 603-8929.
There are two other important sources of informa-
tion: "SACM concept paper" (8/5/92) and Guidance
on Implementation of the Superfund Accelerated Cleanup
ModelUnderCERCLAand theNCP [OSWER Directive
No. 9203.1-03 (7/7/92)]. General SACM information
can be obtained by calling the Superfund Document
Center (202) 260-9760.
-------
f/EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9203.1-051
December 1992
Assessing Sites Under
SACM — Interim Guidance
Office of Emergency and Remedial Response
Office of Waste Programs Enforcement
Office of Enforcement
Intermittent Bulletin
Volume 1 Number 4
The purpose of the Superfund Accelerated Cleanup Model (SACM) is to make Superfund cleanups more timely and efficient.
This will be accomplished through more focus on the front end of the process and better integration of all Superfund program
components. The approach involves:
A continuous process for assessing site-specific conditions and the need for action;
Cross-program coordination of response planning;
Prompt risk reduction through early action (removal or remedial);
Appropriate cleanup of long-term environmental problems;
Early public notification and participation; and
Early initiation of enforcement activities.
SACM is a process change that should be considered for all Superfund activities. Implementation of this policy will be
consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). Overall Superfund priorities remain the same: deal
with the worst problems first; aggressively pursue enforcement; and involve the public and relevant State agencies at all
appropriate stages of the work.
SACM Assessment
Assessing sites under SACM involves
the following principles:
• The process integrates tradi-
tional site assessment func-
tions to allow continuous as-
sessment for high priority
sites mat proceeds until all
necessary data are collected
to screen sites or support any
needed response actions.
SACM goals include combin-
Fasfer... C/eaner...Safer
ing activities to support both removal and remedial
assessments. Thecontinuing assessment process sup-
ports both National Priorities List (NPL) listing and
remedial actions.
Response action decisions should be initiated as soon
as evidence indicates that early action is warranted.
Any appropriate enforcement actions should be ini-
tiated as well. Assessment work can continue concur-
rently with early actions.
Assessment procedures are coordinated to ensure
that data collected in one phase of assessment sup-
port other assessment, enforcement, and response
activities.
Sites posing the greatest threat are ad-
dressed first ("Worst Sites First"). All sites
will be reviewed to determine site prior-
j ity for continued assessment.
Superfund assessment under
SACM integrates previously sepa-
rate removal and remedial assess-
ments into a single process. Under
SACM the assessment processes
operate concurrently; specific
functions need not be completed
before other functions can start.
Integrating assessment functions
will cut several years from the assessment and cleanup
process. Sites receive the appropriate level of effort needed
to make assessment decisions, and sites needing no further
action under Superfund are designated as Site Evaluation
Accomplished (SEA). Sites assigned an SEA designation
are referred to the States or other regulatory authorities for
further action, as appropriate. Whenever possible,
Superfund assessment activities are conducted concur-
rently with response and enforcement actions. The basic
principles of SACM assessment are built upon the need to
eliminate redundancy and expedite the Superfund pro-
cess.
The SACM assessment approach can screen out a large
percentageof potential releases early in the process. Where
-------
it is clear no CERCLA response action will be taken, the
assessment is completed by documenting the basis of the
decision through an SEA designation. If further data indi-
cate that the site is likely to have a Hazard Ranking System
(HRS) score of 28.5 or more, EPA (or the State, under a
cooperative agreement) may initiate a Remedial Investiga-
tion (RI). Additional data needed to prepare the HRS
package can be collected while the RI is underway. RI data
can be used to support removal action decisions and HRS
scores, as well as remedial action decisions. The Region
must include documentation required by the NCP for
moving from one phase of assessment to another.
The Regional Decision Team (RDT) is an integral part of the
site assessment process. Under S ACM, coordination among
removal, remedial, and State agency personnel is critical,
and fostering that coordination is a role of the RDT. At the
point where assessment information is adequate for deci-
sion-making, the RDT convenes to consider options for
sites. The RDT can then direct or recommend a response
action (e.g. time critical removal), decide to collect addi-
tional data, develop an enforcement strategy, and recom-
mend placing the site on the NPL.
The States have always played a critical role in site assess-
ment, performing most of the Preliminary Assessments
(PA) and many of the Site Investigations (SI). EPA expects
that role to continue under SACM. The EPA Regions and
the States will coordinate to develop two-way communica-
tion concerning Federal and State response actions. EPA
Regions are responsible for working out the appropriate
arrangement with each of their States.
Coordination of assessment and enforcement activities is
also critical. When it is feasible, the site assessment reports
should identify owners, operators, and witnesses, with me
appropriate documentation. Likewise, they should de-
scribe generator records and other useful information,
such as drum labels. The decision to start a Potentially
Responsible Party (PRP) search requires a balancing c*
resources. Although many sites (i.e., those designated
SEA) will not need PRP searches, rapid action under SACM
may require that PRP searches begin early in the process
for some sites. As a general rule, PRP search activities
should begin as soon as possible after the decision is made
that a response action is likely to be required at the site.
Experience has shown that early and frequent communica-
tion with local communities can enhance site response, and
this will be particularly true under SACM. Where appro-
priate, EPA and the State should take the initiative in
commencing community involvement early in the assess-
ment process. The Agency is developing guidance for
community involvement activities at the assessment stage
of the process.
Consistent with the NCP, listing sites on the NPL will
continue to be a prerequisite to spending remedial action
funds to clean up sites. The HRS will continue to be the
primary basis for selecting sites for the NPL. SACM does
not change the role of the HRS and NPL, and in general
SACM should not significantly affect the number of sites
that EPA will place on the NPL.
Expediting Cleanup Through SACM Assessment
SACM promotes performing risk assessment and RI activi-
ties earlier in the assessment process for a site where data
indicate remedial action will be needed. Once a decision
has been made to conduct the RI in conjunction with HRS
data collection, integrated assessment data collection and
sampling efforts continue to:
• Obtain documentation for the HRS; and
• Characterize site sources, extent of contamination,
and risks to determine appropriate cleanup actions.
Consistent data collection approaches and appropriate
data quality objectives that serve the needs of early action,
long-term action, and NPL listing will promote efficiency
in Superfund. A single team should collect samples and
select analytical methods to serve multiple program needs.
A coordinated site mobilization eliminates duplication of
tasks and reduces sampling and analyses, saving both time
and money.
The scoping and planning of the RI should begin as soon as
EPA determines that the site will most likely require reme-
dial action. The RDT may decide to begin an RI at any time
during the assessment process. Once RI activities begin,
assessment activities continue concurrently to collect suf-
ficient information to determine the site score for possible
listing on the NPL. While a site might be designated as SEA
during that process, the RDT should select sites for early
RIs only where it appears the site will meet the criteria for
the NPL. Removal actions can, of course, be taken at any
time in the assessment process, and the RDT should con-
sider an early action at any site selected for an early RI.
One key to the success of the SACM approach is to select
the appropriate sites for starting the RI prior to HRS
scoring. It is important to avoid committing high levels of
resources to sites that may not be eligible for the NPL. Some
site conditions, in particular where human exposure or
contamination of a sensitive environment has been found,
clearly indicate mat the HRS score will be above 28.5 and
that a response action will be needed (see Figure 1). These
"NPL-caliber" sites will be a focus of integrated assess-
ments and early actions.
-------
Even where a site appears to warrant an early RI, there is
some possibility that the site will not score high enough to
be placed on the NPL. EPA recognizes this and is willing
to proceed with the RI early in the assessment process to
FIGURE 1:
Examples of NPL-caliber Sites
• Public drinking water supplies are contaminated
with a hazardous substance.
• Private wells are contaminated with a hazardous
substance above a health-based benchmark.
• Soils on school, daycare center, or residential proper-
ties are contaminated by a hazardous substance above
background levels.
• A hazardous substance is detected above background
in an offsite air release in a populated area.
• A highly toxic substance known to bioaccumulate
(e.g., PCBs, mercury, dioxin, PAHs) is discharged
into surface waters.
• Sensitive environments (e.g., critical habitats for en-
dangered species) are contaminated with a hazard-
ous substance above background levels.
encourage faster response actions at the majority of cases.
Moreover, sites with me conditions described above will
often meet the criteria for removal actions anyway, and the
RI will provide valuable information for any response that
is ultimately selected.
In addition to the risk related conditions, the RDT should
consider the following when evaluating whether an RI
should be initiated at a site:
• Some sites may be excluded from Superfund consid-
eration under policy, regulatory, or legislative re-
strictions. For instance, EPA policy is to defer from
the NPL those facilities subject to corrective action
authorities of tine Resource Conservation and Recov-
ery Act (RCRA)(see 54 FR 41000, October 4,1989).
• At sites where receptors have been exposed to haz-
ardous substances, but the source or sources are
unknown, the decision to perform an early RI may
depend on the nature of the potential sources. For
example, if a RCRA facility is a potential source, an
early RI should generally not be performed based on
the RCRA deferral policy. However, in most other
cases, an early RI may contribute to identifying the
source or sources of contamination.
The PRP search and other enforcement actions should
indicate whether ensuing site response will be Fund-
or PRP-lead, under the policy that enforcement first is
the preferred strategy. While the above serve as gen-
eral guidelines, the RDT will need to evaluate indi-
vidual cases to determine whether to proceed with an
early RI and whether enforcement or the Fund offers
the more appropriate course of action.
NOTICE: The policies set out in this fact sheet are not
final Agency action, but are intended solely as guid-
ance. They are not intended, nor can they be relied
upon, to create any rights enforceable by any party in
litigation with the United States. EPA officials should
follow the guidance provided in this fact sheet, or may
act at variance with the guidance, based on an analysis
of site-specific circumstances. The Agency also re-
serves the right to change this guidance at any time
without public notice.
Assessing Sites Under SACM—Interim Guidance
This paper is one of five fact sheets published by EPA
under publication number 9203.1-051 (Volume 1,
Numbers 1-5) to describe the Superfund Accelerated
Cleanup Model (SACM) and should be reviewed in
conjunction with the other SACM fact sheets. Com-
ments on mis document should be directed to Janet
Grubbs of the Hazardous Site Evaluation Division
(703) 603-8833.
There are two other important sources of informa-
tion: "SACM concept paper" (8/5/92) and Guidance
on Implementation of the Superfund Accelerated Cleanup
Model Under CERCLAand theNCP [OSWERDirective
No. 9203.1-03 (7/7/92)]. General SACM information
can be obtained by calling me Superfund Document
Center (202) 260-9760.
-------
c/EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9203.1-051
December 1992
SACM Regional Decision
Teams — Interim Guidance
Office of Emergency and Remedial Response
Office of Waste Programs Enforcement
Office of Enforcement
Intermittent Bulletin
Volume 1 Number 5
The purpose of the Superfund Accelerated Cleanup Model (SACM) is to make Superfund cleanups more timely and efficient.
This will be accomplished through more focus on the front end of the process and better integration of all Superfund program
components. The approach involves:
A continuous process for assessing site-specific conditions and the need for action;
Cross-program coordination of response planning;
Prompt risk reduction through early action (removal or remedial);
Appropriate cleanup of long-term environmental problems;
Early public notification and participation; and
Early initiation of enforcement activities.
SACM is a process change that should be considered for all Superfund activities. Implementation of this policy will be
consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). Overall Superfund priorities remain the same: deal
with the worst problems first; aggressively pursue enforcement; and involve the public and relevant State agencies at all
appropriate stages of the work.
Regional Decision Team Goal
The goal of the Regional Decision Team
(RDT) is effective coordination, com-
munication, and integration of pro-
gram authority, expertise, re-
sources, and tools to solve prob-
lems that arise at Superfund sites.
Close coordination of the site as-
sessment and response processes
and initiation of any appropriate
enforcement responses through the
RDT mechanism will enable the Cacfat- S*/aanar Gafar
Superfund Program to achieve risk ra9tt?f,,. Is/ea/it?/... &a/t?/
reduction and site response goals quickly and efficiently.
Accordingly, Regions should design a process that,
at a minimum, ensures effective communi-
^ cation across the removal, site assessment,
CV remedial, enforcement, and commu-
nity involvement program elements,
and provides for the full and active
Implementation
The RDT concept offers a new approach for determining
Superfund response actions. The RDT provides for broad
participation across all program elements while placing
emphasis on teamwork and Regional and staff empower-
ment for developing response strategies and solving site
problems. The RDT also has the responsibility for ensuring
that response actions are fully consistent with the require-
ments contained in CERCLA and the NCP. Regions have
flexibility in designing an RDT process mat meets their
specific needs, recognizing that a specific formal structure
is not as critical as the overall goal of program integration.
participation of the Office of Re-
gional Counsel. Further, Re-
gions should ensure that the RDT
works in concert with the Region's
management structure, and with
thosedesignated site managers
(e.g., Site Assessment Managers
(SAMs), On-Scene Coordinators
(OSCs), Remedial Project Managers (RPMs), and /or indi-
vidual site management teams) that are responsible for
handling the site on a day-to-day basis. In addition, the
Region should discuss and establish with the State a pro-
cess for State involvement during the SACM decision-
making process.
Each Region should develop guidelines for the operation
of the RDT so that it will function as smoothly and effec-
tively as possible, while facilitating the involvement of
representatives from various offices, both within and out-
side the Regional office. In addition, it will be impor-
tant for the Regional divisions to fully plan out what they
hope to achieve with their RDT, and initiate early dialogue
to establish roles and responsibilities throughout the re-
-------
sponse process. The following list of possible start-up
actions should be considered by each Region:
1. Assign roles and responsibilities of selected mem-
bers;
2. Establish coordination process with the States;
3. Establish decision criteria for determining response
decisions, including response authority;
4. Identify the universe of Superfund sites within the
Region and the plan of action for integrated assess-
ment of such sites;
5. Develop approach for designation of response priori-
ties;
6. Establish a process for quick initiation of potentially
responsible party (PRP) search activities and enforce-
ment efforts; and
7. Develop process for early coordination with Head-
quarters, and support agencies /organizations (e.g..
Agency for Toxic Substances and Disease Registry
(ATSDR), Department of Justice (DOJ)) providing
technical/legal assistance to the RDT.
RDT Operations
The RDT is empowered by the Region to make those
decisions that are delegated to its level This body serves as
a tool to ensure early and effective communication and
should provide input for the traditional line decision-
making authorities. The RDT should provide policy and
strategic direction to designated site managers (SAM, OSC
and RPM), to ensure the integration of program authorities
(Fund-lead vs. PRP-lead, removal vs. remedial), resources,
and tools to solve site-specific problems. (The RDT is not
responsible for true emergencies, which the removal pro-
gram will continue to handle.) The RDT should convene
either routinely or on an as-needed basis, to receive status
Deports and strategy options from the site manager(s),
establish response priorities, and provide bom advice and
direction on appropriate response actions (e.g., scope and
sequence of projects). RDT involvement in a site response
should follow the process or recommend actions as de-
scribed below:
1. Early Assessment Stage:
Following receipt of initial site information (e.g., Prelimi-
nary Assessment/Removal Assessment or Site Inspec-
tion), the RDT would convene to assess optional next steps
for all sites where a Site Evaluation Accomplished (SEA)
decision is not appropriate. Specific options available to
the RDT include:
• Recommend/Develop an Early Action Response
Plan
• Emergency/Time-Critical Removal Action—situa-
tions where prompt action is required to mitigate a
risk to human health or the environment. RDT in-
volvement initiating these actions may be limited
based on the time available; however, the RDT should
participate in eval uating the response after the action
has been taken and identifying the next steps re-
quired to complete me response, if any. Time-critical
actions, which must be initiated quickly to protect
human health and the environment, should be re-
served for situations where an action must be initi-
ated quickly to protect human health and the envi-
ronment.
• Non-Time-Critical Removal Action — less urgent
action intended to stabilize the site and /or eliminate
contamination. The RDT should assess the opportu-
nity for response and initiate the preparation of the
Engineering Evaluation/Cost Analysis (EE/C A) and
Action Memo with prior public comment (and for
Fund-financed removals, the required justification
for exemptions to exceed statutory removal time and
dollar limits). Also, the RDT should determine
whether proposed actions are time-critical or non-
time-critical, or whether the site requires remedial
action (including expedited National Priorities List
(NPL) evaluation if Fund-financed remedial action is
expected).
• Early/Interim Remedial Action — actions at NPL
sites intended to achieve site remediation and risk
reduction. The RDT should initiatea Remedial Inves-
-------
tigation/Feasibility Study (RI/FS) leading to an early
or interim action Record of Decision (ROD).
• Direct The Acquisition of Additional Data
• The RDT may require mat additional data be col-
lected prior to deciding on a course of action for a site.
If at any point in the process of collecting site infor-
mation, the site appears to be an NPL-caliber site, the
RDT should consider initiating RI activities, and,
where appropriate, early actions.
• NPL Listing
• Where sufficient data exist to list a site and where
remedial response actions are envisioned, the listing
process should be concurrent with early response
action or expanded Site Investigation/Remedial In-
vestigation (SI/RI) data collection. Fund-lead early
remedial actions can only be conducted after the site
is on the NPL.
• Enforcement Strategy
• Initiate early PRP search activities to aggressively
pursue enforcement first and define the role of PRPs
in response action and/or data collection. Negotia-
tions with PRPs should be conducted as appropriate
during the assessment process as well as for removal
or remedial response actions. The RDT will have
input on the selection of the appropriate enforcement
document (Administrative Order on Consent/Uni-
lateral Administrative Order (AOC/UAO), consent
decree, etc.) and maintaining coordination withHead-
quarters and DOJ, where appropriate, regarding the
enforcement strategy.
2. Advanced Assessment Stage:
As additional site information is received (e.g., after or
during either the early action, or the focused or expanded
SI/RI part of the integrated site assessment), the RDT
should assess next steps for sites warranting additional
response action. Specific options would be similar to those
identified above. At this stage, response actions generally
would fall in the non-time-critical removal, early remedial
action category, or in the long-term action category. The
RDT should direct the initiation of the appropriate support
actions. Also, the RDT should assess the relative priorities
of the proposed response actions and allocate resources
accordingly, if delegated this authority. If not, recommen-
dations should be made if additional resources are neces-
sary.
3. Public Participation/Community Involvement
The success of SACM will depend to a large degree on
public acceptance of our actions at the site level. Maintain-
ing a strong focus on the local community (our primary
"customer") will contribute immensely to this success. The
administrative record file, a primary vehicle for public
participation, must be made available to the public for
inspection according to the schedule set out in the NCP
Subpart I. This is a necessary component for cost recovery.
The decisions that the RDT makes about the future of a site
will be important to the local community. The RDT, there-
fore, should take community concerns into account when
making decisions on a site response strategy. The commu-
nity should be promptly informed once those decisions are
made. Community relations planning should be included
in the site response strategy as an equal element with
technical and legal considerations, including due consid-
eration of CERCLA and NCP requirements.
Using non-time-critical removal actions, as compared to
time-critical removal actions, will allow prior public com-
ment, and are encouraged where time allows.
ie role of
response
4. Follow-up:
The Regions should develop protocols defining thi
the RDT in monitoring and evaluating ongoing r<
and assessment activities.
Organization
As described above, the RDT is designed to ensure effec-
tivecommunicationandcoordinationacrosstheSuperfund
program. The RDT provides policy advice and strategic
direction to site mangers and sets priorities to promote
efficient site response. RDT generally consists of manage-
-------
ment level personnel, as opposed to the make-up of site
management teams. The RDT generally will develop re-
sponse strategies for sites (e.g., the decision to take a
"removal" versus a "remedial" action). Individuals autho-
rized to sign Action Memos or RODs may be on the RDT.
The RDT will not have responsibility for the day-to-day
site project management, which will remain with OSCs/
RPMs and site-management teams.
Regions have flexibility in developing an organizational
structure for the RDT, and may decide to develop multiple
RDTs. In Regions where all program elements report to a
single manager, (e.g., Deputy Director for Superfund), the
RDT might consist of the line managers reporting to that
manager, along with a representative from the Office of
Regional Counsel. In Regions where program responsibili-
ties are dispersed, a more formal arrangement would be
appropriate. In these instances, a typical model for start-up
might include the following senior level participants:
• Senior Manager
• Remedial Person
• Removal Person
• Site Assessment Person
• Cost Recovery Person
• RiskAssessor/BiologicalTechnicalAssistanceGroup
(BTAG) Representative
• Attorney from Office of Regional Counsel
• Community Involvement Coordinator
The Regions should involve the States as often as possible
in an appropriate manner. Typically, States would be
consulted in concert with RDT deliberations or in prepara-
tion for an RDT meeting. The RDT also should meet
periodically or on an as needed basis, with support agen-
cies and organizations (i.e., ATSDR, Corps of Engineers,
Office of Research and Development, BTAG, PRP search,
contract management staff, DOJ, etc.) to receive advice and
input on response options or enforcement actions as ap-
propriate.
Headquarters Consultation
Regions must consult with Headquarters prior to taking an
action which will require funding beyond what the Region
has in its allowance. Regions must also consult before
committing to a PRP-lead or Fund-lead non-time-critical
action costing over $5 million. Regions must always follow
the existing rules for justifying and obtaining exemptions
for removal actions estimated to cost over $2 million or
exceed one year duration. Regions are also strongly urged
to discuss with Headquarters any situations which present
particularly difficult issues or may be controversial with
State or other interested parties.
NOTICE: The policies set out in this fact sheet are not final
Agency action, but are intended solely as guidance. They
are not intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the Uni ted
States. EPA officials should follow the guidance provided
in this fact sheet, or may act at variance with the guidance,
based on an analysis of site-specific circumstances. The
Agency also reserves the right to change this guidance at
any time without public notice.
SACM Regional Decision Teams - Interim
Guidance
This paper is one of five fact sheets published by EPA
under publication number 9203.1-051 (Volume 1,
Numbers 1-5) to describe the Superfund Accelerated
Cleanup Model (SACM) and should be reviewed in
conjunction with the other SACM fact sheets. Com-
ments on this document should be directed to Robin
Anderson of me Hazardous Site Control Division
(703)603-8747.
There are two other important sources of informa-
tion: 'SACM concept paper" (8/5/92) and Guidance
on Implementation of the Superfund Accelerated Cleanup
Model Under CERCLA and the NCP [OSWER Direc-
tive No. 9203.1-03 (7/7/92)]. General SACM infor-
mation can be obtained by calling the Superfund
Document Center (202) 260-9760.
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IV. PRP SEARCH,
NOTIFICATION AND
INFORMATION EXCHANGE
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Chapter IV
PRP Search, Notification, and Information Exchange
Section I. Description of Activity 1
Introduction 1
Objectives of PRP Searches 1
Liability 2
Strict Liability 2
Joint and Several Liability 3
Limited Defenses Under CERCLA 3
General Approach to PRP Searches 3
Baseline Search Tasks 3
Specialized Search Tasks 4
Managing the Search Process 5
PRP Search Reports 5
Key Players in the PRP Search Process 5
RPMs 5
Regional Attorneys 6
Civil Investigators or PRP Search Staff 6
Contractors 6
Section II. Procedures and Interactions 8
A. Initiating a Preliminary PRP Search 8
B. Develop PRP Search Plan 8
C. Baseline Search 8
D. §104(e) Letters Issued to Owners/Operators and Follow-up 9
Statutory Authority 10
General Content of 104(e) Letters 10
Municipal Sites 11
Insurance Information 12
Written Response and Due Date 12
E. Compile, Organize, and Analyze 104(e) Letter Responses 12
Responding to FOIA Requests 13
Enforcement Strategy for Non-Compliance With Information Requests 13
Administrative Order to Compel Compliance 13
Judicial Action to Compel Compliance 13
F. Baseline Search Progress Review 14
G. Prepare Baseline Report 14
H. Management Review 14
PRP Search, Notification, and Information Exchange-i
-------
I. 104(e) Letters to Generators and Transporters 15
Municipal Sites 15
J. Specialized Investigative Tasks 16
Administrative Subpoenas 16
K. Interim-Final Report 16
L Interim Report Follow-up 17
M. General Notice Letters (GNLs) 17
N. Developing Information on PRP Waste Contribution 19
0. On-going Information Exchange 19
Section III. Planning and Reporting Requirements 21
A. Planning 21
B. Budget 21
C. Reporting Requirements 21
Section IV. Potential Problems/Resolutions 23
A. Timing 23
B. Clarifying Roles and Responsibilities 23
C. Examples of Enforcing Information Requests 23
The Cannons Sites 23
American Thio-Chem Site 24
Section V. References 25
Policy 25
Guidance 25
Manuals 25
Training 25
Contacts 26
Section VI. Activities Checklist 27
Appendix
PRP Search Plan A1
ii-PRP Search, Notification, and Information Exchange
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Chapter IV
PRP Search, Notification, and Information Exchange
Section I. Description of Activity
Introduction
The Potentially Responsible Party (PRP) search process is an investigation into the parties
associated with a Superfund site who may be liable for the costs of remedying the release
of hazardous substances. Effective PRP searches are fundamental to the Agency's en-
forcement strategies of obtaining increased PRP involvement in conducting response
activities and cost recovery. For remedial sites, searches should be completed within one
to one and one-half calendar years of the site's proposed listing on the NPL. In general, a
PRP search should be initiated concurrently with the listing site inspection, or at the latest,
by the initiation of the listing process.
Exhibit IV-1 presents an overview of the flow of activity during the PRP search.
Objectives Of PRP PRP searches accomplish several primary objectives:
Searches * Identify potentially responsible parties who may be liable under section 107 of
CERCLA and provide the information needed to issue general notice letters
+ Provide information for special notice letters and information release
+ Provide names of PRPs to ensure that the Agency provides constructive notice on the
proposed plan (for remedial actions)
* Provide names of PRPs to be included in community relations mailing lists
* Provide information to assess possible full settlements for litigation risks in light of
the PRPs' liability and ability to pay response costs, partial settlements for the
appropriateness of the settlement case remaining against the non-settlors, and statu-
tory factors (e.g., de minimis, mixed funding, divisible harm)
* Provide information on disposal for the remedial investigation (RI)
* Provide information on whether wastes are RCRA hazardous wastes for assessing
potential ARARs
* Gather waste contribution information in order to compile waste-in lists
* Document evidence that may be used in cost recovery (section 107), CERCLA section
106 actions, access actions and for liens.
Additionally, the Agency has found that a thorough PRP search enhances EPA's success
in negotiating with PRPs to conduct the response activity under EPA supervision.
The extent of the initial search activities is determined by the nature of site activities. At
time-critical removal sites, the initial search is limited in scope. In contrast, the initial
search activities at long-term remedial sites generally are extensive. Although mere may
be differences in the scope of initial search activities at removal and remedial sites, the
objectives of all PRP searches, as stated previously, are the same. This chapter is oriented
primarily to PRP searches at remedial sites. At removal sites, evidence of liability must be
obtained for section 106 Unilateral Administrative Orders and cost recovery. While the
elements of a search at a removal are often similar to a search in connection with the
remedial process, time constraints and the level of expenditures may warrant a modifica-
tion of the approach. PRP searches at removal sites are discussed in Chapter II, Removals.
Early identification of PRPs enables the Agency to promptly issue General Notice Letters
(GNLs). The early issuance of GNLs facilitates the formation of PRP steering commit-
PRP Search, Notification, and Information Exchange-l
-------
tees. Also, provision of waste-in information facilitates the PRPs' agreement on alloca-
tions of costs. These negotiation techniques are discussed in detail in Chapter V, Rl/FS
Negotiations and Chapter VIII, RD/RA Negotiations.
When PRPs are identified and notified early in the remedial process, there is a greater
possibility that they will decide to undertake appropriate cleanup actions. Also, identified
PRPs may help EPA locate other PRPs to share the costs of the response activity. PRP
involvement in die clean-up is generally in the interest of both EPA, which can thereby
conserve Fund money, and the PRPs, who avoid the transactional costs of litigation.
RPMs should utilize the expertise of Regional attorneys, civil investigators, and outside
contractors to conduct the numerous tasks of the actual search. In theory, PRP searches
should begin as early as possible. However, as a practical matter, the exigencies of the site
determine the scope of the initial search activities. Search activities should continue
during the response action until all reasonably identifiable parties have been located.
Liability CERCLA imposes liability where there is a release or threatened release of hazardous
substances from a facility. Liability is imposed on four classes of persons, these classes
are defined as:
* Present owners and/or operators
Present owners or operators of a facility are liable even if they did not contaminate
the property. This may include lessors.
* Past owners and/or operators
Past owners or operators are liable if they owned or operated the facility at the time
hazardous substances were disposed of. Under CERCLA, disposal is not limited
to direct deposits.
* Persons who arranged for either the treatment and/or disposal or the transportation for
treatment or disposal of hazardous substances (e.g., generators). In the context of a
generator, several elements must be proven to establish liability:
The generator disposed of or made arrangements for the disposal or treatment of
hazardous substances
The generator's hazardous substances or hazardous substances of the same type
were present at the site
An actual or threatened release of the generator's or any other hazardous substance
occurred at the facility. This clarifies the general element of a release at
multigenerator sites.
RPMs should note that this class of parties includes parties such as waste brokers. The
fact that the defendant can show that it arranged to have its waste dumped elsewhere
is irrelevant so long as the Agency can prove that the waste was disposed of at the
facility.
* Persons who accept hazardous substances for transport to disposal or treatment
facilities that they selected (e.g., transporters).
Additionally, in cost recovery actions, the release or threatened release of a hazardous
substance from a facility must cause the Agency to incur response costs.
Strict Liability If a person falls within one of the four classes of PRPs, section 107(a) of CERCLA
imposes strict liability for all response costs incurred at the site. This means that PRPs are
liable even if: the problems caused by the hazardous substance release were unforeseeable;
the PRP acted in good faith; state-of-the-art management practices were used at the time
the materials were disposed of. One of the most significant aspects of CERCLA is that
PRPs are liable for both their past and present waste management practices.
2—PRP Search, Notification, and Information Exchange
-------
Timing of special notice is generally dictated by response planning. The PRP search should be
essentially complete for the purpose of RI/FS Special Notice at least 90 days before the planned
RI/FS start date. Improved evidence on liability and ability to pay will be collected during the RI/FS.
issue vjciiciai iNuiicc miters
Begin Sharing Names of PRPs, Waste-In
With PRP Steering Committee
Special Notice
Letters *
—
-------
Joint and Several Liability When more than one PR? is involved at a site and the harm is indivisible, such as in the
case of intermingled drums, commingled wastes and contaminated soil or ground water,
the court may impose joint and several liability upon all parties involved at the site. If
joint and several liability is imposed on the PRPs, each PRP involved at the site will be
individually liable for the cost of the entire response action. EPA could collect all the
costs from one PRP. The PRP who paid the costs would then have to seek contribution
from the non-paying PRPs. However, EPA's practice is to attempt to identify and notify
the universe of PRPs and to issue orders and litigate against the largest manageable
number of parties.
Limited Defenses Under Under CERCLA, a PRP's liability is subject only to the very limited defenses listed in
CERCLA section 107(b). Thus, a PRP, who would otherwise be liable under section 107(a) of
CERCLA, can escape liability only by proving that the release or threatened release was
caused solely by:
* an act of God
* an act of war
* in certain narrow circumstances, by a third party who was not an employee and who
did not have a contractual relationship with the PRP.
In cases where the PRP raises the defense mat the release was caused by a third party, the
PRP will be excused from liability only if the PRP exercised due care and took precautions
against foreseeable acts or omissions of these third parties. Also, under section 101(35)(B)
of CERCLA, a person who acquired property after the hazardous substance was disposed,
may raise the innocent landowner defense. To assert this defense, the defendant must
prove, among other things, that he/she acquired the property without knowing, or having
reason to know, that hazardous substances were disposed of in, on, or at the property. A
private party may also avoid liability by establishing that it is a subsequent owner of the
land who acquired the site through bequest or inheritance, and that the party exercised due
care and took precautions against the foreseeable acts and omissions of the third party.
GODOral Approach tO Because the RPM is responsible for managing the response action at the site, it is vital for
PRP ^parrhps me ^^^to understand the Agency's policies and procedures for completing a thorough
PRP search.
It is important to develop a PRP search plan. In general, the initial stage of a PRP search
will involve ten baseline tasks. These are followed by development of a baseline report,
which summarizes the findings. Depending on the complexity of the site, one or more of
18 additional specialized tasks also may be required. Once these are complete, an interim-
final report is issued.
Baseline For reasons of budget, timing, and standardizing site management, EPA has selected a
Search Tasks core group of tasks to be conducted at most sites. There are 10 core search tasks that
should be executed during most "baseline" searches. The tasks are intended to provide
the Agency with basic information about the site and the PRPs' involvement at the site. At
some sites, such as manufacturing facilities where off-site generators were not involved,
the search strategy may be tailored to fewer than 10 tasks, hi most cases, the level of
effort (LOE) for completing these 10 tasks ranges from 200 to 500 hours, depending on
site complexity. These tasks are set forth below:
* Agency record collection and file review
* Records compilation
* Interviews with government officials
* Title search
PRP Search, Notification, and Information Exchange-3
-------
* History of operations at the site
* PRP name and address update
+ PRP status/PRP history
• Financial status
* CERCLA 104(e)/RCRA 3007 letters
* Report preparation.
Depending on the circumstances, it also may be appropriate to include specialized tasks
such as aerial photographs and compliance history evaluations in the baseline tasks.
Specialized Search Tasks At complex sites with multiple generators, the completion of these 10 basic investigative
tasks does not conclude the PRP search. To conduct a thorough search, the search strategy
should provide for additional tasks and document the rationale. Site-specific data gather-
ing problems are addressed by using a combination of the 18 additional (i.e., "specialized")
search tasks, in conjunction with the 10 basic tasks. The 18 specialized tasks provide
further avenues of investigation that assist the RPM and contractors in uncovering addi-
tional information about the PRPs and information about their involvement at the site.
While many of the specialized tasks may be useful in some PRP searches, the same tasks
may not be useful in other searches. RPMs should consult with an attorney in the Office of
Regional Counsel and one of the Regions' civil investigators. RPMs should exercise
professional discretion in determining which of the 18 additional tasks are most applicable
to a particular site.
The 18 additional search tasks are divided into four general categories:
* Sources of Information
- PRP File Review
Private Citizen/PRP Interview
Field Survey
Site Sampling
Site Enforcement Tracking System
Aerial Photographs
- CERCLA Subpoena Authority
Private Investigator
* Waste Stream Analysis
Industrial Surveys
Process Chemistry Analysis
Waste Stream Inventory
* Databases
- Transactional Databases
Correspondence Tracking Databases
Document Inventory Databases
* Additional Miscellaneous Task
Compliance History
Financial Assessment
Generator Ranking
Property Appraisal.
4-PRP Search, Notification, and Information Exchange
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Managing the Search The RPM must ensure that all appropriate basic and additional investigative tasks are
Process conducted at the site. Prior to initiating these tasks, RPMs should formulate a search plan
designed to address site-specific situations (refer to the appendix at the end of this chapter)
using a combination of the 10 baseline tasks with one or more of the 18 specialized tasks.
The RPM should tailor the PRP search plan to the circumstances of each case instead of
attempting to pigeon-hole the circumstances of each site into a fixed search format.
In conducting the search tasks, the RPM should manage the tasks in an iterative process;
they are not discrete and insular tasks that are performed only once. When both the
required and the necessary specialized tasks have been completed, an interim-final report
will be issued. The investigation should continue after the interim-final report to follow-
up on leads and to fill any data gaps. The PRP search process is described in greater detail
in section II of this chapter.
PRP Search Reports A PRP search report for a site should present the facts pertaining to the PRPs' liability.
Generally at least two reports will be issued for every search (except in simple owner-
operator situations where the baseline report will usually suffice): the baseline report and
the interim-final report. Usually, the baseline report is issued after the basic investigative
tasks have revealed information identifying site owners and/or operators. The interim-
final report is issued after appropriate additional search tasks have been conducted identi-
fying generators and transporters. Both reports should follow the format shown in Exhibit
IV-2.
References
OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1987).
OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program" (June 29, 1989).
KfiV Plavers in the PRP ^n Edition to the RPMs, there are three key groups of players involved in the PRP search
* ' process: Regional attorneys, Civil Investigators (CIs) or PRP search staff, and contractors.
Search PrOCeSS j0 achieve "early and better" PRP searches, RPMs must effectively coordinate their
efforts with these other key players.
RPMs The RPM or CI, depending on the Region, is responsible for managing the PRP search
process. He/She oversees the search process and, for functions performed by contractors,
provides direction to the contractor. RPMs and CIs generally perform the following
functions:
* Establish the PRP search priorities
*• Establish the PRP search strategy
* Manage contractor-conducted search tasks
Define the scope of the search, in consultation with ORC
Develop PRP search work assignments, budgets, and schedules
Review baseline, interim, and final contractor deliverables, in consultation with
ORC
Introduce the contractor to State and local government contacts
* Issue information request letters
* Ensure follow-up on all tasks necessary for conducting a complete search
+ Implement quality assurance/quality control procedures to ensure the accuracy of data
garnered during the search
PRP Search, Notification, and Inforrruilion Exchange-5
-------
«• Ensure that adequate information is gathered for special notice letters (including the
universe of PRPs and waste-in information)
* Ensure that adequate evidence of a PRPs' liability and ability to pay is gathered
* Ensure that the universe of PRPs, viewed broadly, is included in community relations
mailing lists.
RPMs must coordinate with ORC to determine whether the collected information contains
sufficient information to establish the PRPs' liability.
Regional Attorneys The ORC attorneys are responsible for directing case development for each site. Attor-
neys' level of involvement will vary from Region to Region. Some attorneys participate
actively in the search activities. Other attorneys do not get involved in the process until the
review of either the baseline or interim final PRP search report. RPMs should seek to
involve the attorneys as early as possible to ensure that the search produces sufficient
credible evidence of the PRPs' liability. For example, RPMs should consult with the
attorneys about developing information request letters and devising appropriate PRP
interview questions. Regional counsel also should be consulted on the scope of the PRP
search.
In general, the attorneys can provide advice to the RPM on CERCLA-specific legal issues,
which may have some bearing on the case in general and the search in particular. For
example, the attorneys can provide advice about complex liability issues such as corporate
successors, and possible legal defenses, such as the innocent landowner defense.
Civil Investigators or There are at least two CIs in each Region. CIs have responsibilities in developing a
PRP Search Staff Regi°na' PRP search strategy that is consistent with EPA policy and overseeing the
implementation of this strategy. The CIs bring a variety of skills to their position and can
provide the Agency with investigative skills that are often lacking in the contractor
community.
The CI's role in enforcement activitif varies from Region to Region. In general, CIs may:
+ Manage the PRP search, including overseeing the contractor's work assignment'
* Provide investigative assistance to RPMs and the PRP search work assignment
manager.
CIs usually conduct crucial interviews or follow up investigation leads that were left open
by the contractors. For example, CIs can be used when information is needed about
additional parcels of land and there is insufficient time to assign a contractor to the task.
CIs can also assist the RPM in completing the PRP search in the following time-critical
situations:
+ Statute of limitations is about to expire
* Contractor has provided incomplete information.
In some Regions, CIs play an active role in enforcement activities. For example, CIs
conduct preliminary field work and help define the scope of a contractor's work assign-
ment. The CI's role may vary depending on the site, and RPMs should coordinate with
Regional management to ensure the proper utilization of CI resources.
Contractors The Agency secures the assistance of contractors to conduct activities, such as most
baseline search tasks. By actively managing and overseeing the processes involved in the
PRP search, the RPMs and CIs should ensure that the contractor produces a quality
product. Contractors must not be assigned subtasks that are inherently governmental
functions, such as deciding who is a liable/viable PRP, who receives a section 104(e) letter,
or whether a response is adequate.
6-PRP Search, Notification, and Information Exchange
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Exhibit IV-2(1)
PRP Search Report Format
PRP Search Report
A. Concise site history including nature of activities during specified time periods and any sampling
results
B. Identification of owners and operators
1. Describe the time periods during which the person owned and/or operated the facility and
state whether the disposal of hazardous substances occurred during that period
2 Describe title search results
3. Provide copies of complex title analysis narrative plus a title tree and graphs
representing title search results
4. Describe activities of various operators
5 Provide current addresses and corporate status
C. Identification of persons who arranged for either the treatment or disposal of the hazardous
substances, e.g., generators
A. Summarize each of the PRPs' name and current address, volume and nature of the
substances, and volumetric ranking. (This is for special notice and for identification of
early de minimis candidates.)
B. Develop, by PRP, as necessary, a complete waste-in list with information on the period
when the substances were sent to the site, volume and identity of the hazardous
substances (40 C.F.R. section 304.2) and EPA's determination of any RCRA waste
codes. Ensure that there are references to underlying documents and transporters in
this list or in the evidence sheets in Appendix B. (This is a summary of evidence and is
for internal purposes; it is based on the evidence sheets.)
D. Identification of transporters
1. Summarize each of the transporters' name and current address, volume and nature of
the substances, and volumetric ranking. (This is for special notice.)
2 Develop by each transporter, as necessary, a list that
links transporters to generators (and therefore hazardous substances) to the
site, and
addresses whether the transporter selected the site.
E. For owners, operators, generators and transporters, assess the identified PRPs' financial
viability (if in question). Identify entities that have been or are in bankruptcy, corporations that
are defunct (no longer in business but not dissolved), corporations that are dissolved, and
individuals who have died, with a description of the status of their estate. Describe facts in
corporate successorships, parent-subsidiary, and possible invidual liability situations.
-------
Exhibit IV-2(2)
PRP Search Report Format
F. Information for Special Sites
1. Municipal landfills
2 Area wide groundwater contamination or stream contamination where sources are not
clear (relies on special surveys and the Rl)
3. Remote sites (company with multiple sites and transshipments)
4. Special financial and capacity issues
G. Other possible PRPs (list PRPs not included in parts BrC, or D above due to substantial
evidentiary issues).
Search Report Appendix
A, Evidence evaluation sheet for each owner, operator, generator, and transporter (include source
of information evaluation)
B. Summary of all work conducted during the PRP search
1. Document investigatory steps during the search, including "dead end" leads
2 Identify persons interviewed and corporations and individuals to whom information
request letters were sent. In addition, identify each response to the information request
letters and any follow-up actions that were taken. Clearly identify the dates of each of
the above activities.
3. Identify leads that could still be pursued
C. Supporting Documentation; assign document control numbers consistent with information
management plan
1. Title document
2 Government documents
3. Interview summaries
4. Manifests, contracts, invoices, etc. (if numerous, assign document control numbers)
5. Section 104(e) letters and responses (keep separate for purposes of FOIA, CBI, etc.)
a Other
D. Location of supporting files.
-------
Various contracts are available to provide PRP search support. Until FY 94, the Technical
Enforcement Support (TES) contracts allow specific tasks to be assigned to contractors on
an as-needed basis. After the TES contracts expire in FY 94, the regionally based En-
forcement Support Services (ESS) contracts will replace them. Also available in 1994,
will be the Superfund Technical Assessment and Response Team (START) contracts. In
addition, Regions can use 8(a) contracts for PRP search support. Contract Evidence Audit
Team (CEAT) contractors may conduct PRP search audits and provide results to the CI as
well as conduct EPA seminars on PRP searches.
For any work assignment costing more than $25,000, an independent government cost
estimate (IGE) must be developed by the Work Assignment Manager. For more informa-
tion on IGEs, see Chapter XVI, Case Budget/Contracts.
The tasks assigned to the contractor should be well defined. The RPM and the CI should
confirm that the contractor has performed the assigned tasks. One way of doing this is to
require the contractor to submit interim deliverables (e.g., baseline report, status reports).
By reviewing these deliverables, the RPM can confirm that the contractor has not lost sight
of the defined search objectives.
PRP Search, Notification, and Information Exc.hange-7
-------
Section II. Procedures and Interactions
This section is designed to assist the RPM in improving the timeliness and quality of the
PRP search process. Throughout the PRP search process, RPMs must work toward the
objective of locating and obtaining relevant information on the liability of the PRPs.
Exhibit IV-3 provides a flowchart of the specific activities discussed in this section. A PRP
search activities checklist is included in section VI of this chapter.
A. Initiating a
Preliminary PRP
A preliminary PRP search is conducted when a site is discovered. The object of a prelimi-
nary search is to determine obvious PRPs who may be available to conduct appropriate
response activity at the site. Once the site has undergone a listing inspection, the RPM
must conduct a more extensive PRP search to locate other PRPs.
B.
Develop PRP
Search Plan
An effective enforcement strategy requires the early and continuous involvement of all key
players, including RPMs and civil investigators. The development of a search plan
consists of four activities:
* Develop a plan for managing the PRP search, including the baseline search, issuance
of information request letters, additional search tasks, investigative strategy for
identifying generators and transporters, follow-ups, and evidence reviews. See the
appendix and section VI of this chapter for an outline of possible considerations. In
developing the plan, the RPM should:
avoid the use of generic work plans without considering the site specific
circumstances
work with Regional attorneys to tailor the strategy so that it accurately reflects the
actual search requirements of the particular site
take into account RCRA land ban information needs
* Identify special problems that require specialized strategies, such as:
municipal landfills
battery recycling sites
area-wide ground-water contamination or stream contamination where sources
are not clear. The RPM should set forth special survey needs and special
investigatory tasks for the remedial investigation
- remote sites, such as situations in which one company owned or operated multiple
sites and transshipped wastes between them
* Develop a detailed resource plan for EPA staff
•* Develop a detailed scope of work for contractors that includes phased deliverables
followed by RPM review and specification of the professional skill mix to be applied
by the contractor.
After the PRP search plan has been formulated, the RPM may begin to implement and
manage the process of collecting and analyzing relevant information about the PRPs. The
contents of a PRP search plan are discussed in Chapter III, Comprehensive Site Planning
and are included as an appendix to this chapter.
C. Baseline Search Referring to the flowchart presented in Exhibit IV-3, the preparation of a PRP search
baseline report may, in a typical case, require six months. The initial steps include
developing a PRP search plan, formulating the work assignment, and reviewing and
accepting the contractor's work plan.
8-PRP Search, Notification, and Information Exchange
-------
Exhibit IV-3
PRP Search Process Flow Chart
0
DAYS
90
DAYS
160
DAYS
270
DAYS
360
DAYS
450
DAYS
_ DEVELOP EPA SEARCH STRATEGY
§ REVIEW AVAILABLE SITE FILES
SCOPE-OUT WORK ASSIGNMENT
9 INITIATE WORK ASSIGNMENT
9 HOLD WA KICK-OFF MEETING WITH CONTRACTOR
9 REVIEW WORK PLAN
9 ACCEPT WORK PLAN
© REVIEW CONTRACTOR'S GOV'T RECORDS CONTACTS
© PREPARE LIST OF POTENTIAL GOV'T INTERVIEWEES
9 DEVELOP AND REVIEW INTERVIEW QUESTIONS
9 COLLECT FEDERAL , STATE. AND LOCAL GOVT RECORDS
9 INTERVIEW GOVT OFFICIALS
9 PERFORM TITLE SEARCH
9 PREPARE LIST OF OWNER/OPERATOR 104(E) LETTER RECIPIENTS
9 ACCESS SETS FOR EXISTING PRP INFORMATION
9 UPDATE OWNER/OPERATOR PRP NAMES AND MAILING ADDRESSES
® DEVELOP AND REVIEW 104(E) LETTER QUESTIONS
9 SET-UP CORRESPONDENCE TRACKING SYSTEM
9 ISSUE 104(E) LETTERS TO OWNER/OPERATORS
® COLLECT ALL RECORDS FROM OWNER/OPERATOR
AND NON-GOVERNMENT SOURCES
9 COLLECT INFORMATION ON PRP FINANCIAL STATUS
® REVIEW OWNER/OPERATOR 104(E) LETTER RESPONSES
® PREPARE BASELINE REPORT
BASELINE REPORT PHASE
FOLLOW-UP PHASE
LEGEND
CONTRACTOR RESPONSIBILITIES
EPA RESPONSIBILITIES
SUGGESTED STARTING POINT 9
9 MEET WITH CONTRACTOR TO DISCUSS BASELINE REPORT
9 IMPLEMENT BASELINE REPORT RECOMMENDATIONS
© PREPARE LIST OF PRIVATE PARTY/PRP INTERVIEWEES
9 PREPARE LIST OF GENERATOR/TRANSPORTER/PRIVATE PARTY 104(E) LETTER RECIPIENTS
9DEVELOPAND REVIEW 104(E) LETTER QUESTIONS
9 DEVELOP AND REVIEW INTERVIEW QUESTIONS
9 REVIEW PRIVATE PARTY/PRP RECORD SOURCES
© CONDUCT PRP/PRIVATE PARTY INTERVIEWS
• UPDATE GENERATOR/TRANSPORTER PRP NAMES AND MAILING ADDRESSES
• ISSUE 10d(E) LETTERS TO GENERATORS/TRANSPORTERS/PRIVATE PARTIES
• COLLECT RECORDS FROM GENERATORS/TRANSPORTERS
AND NON-GOVERNMENT SOURCES
O SET-UP TRANSACTIONAL DATABASE
I REVIEW 104(E) RESPONSES FROM GENERATORS/TRANSPORTERS/PRIVATE PARTIES
© CREATE GENERATOR RANKING
® CONDUCT FINANCIAL ASSESSMENT OF PRPS
©PREPARE INTERIM FINAL REPORT
• ISSUE GENERAL NOTICE LETTERS —0
ISSUE SPECIAL NOTICE LETTERS
-------
By structuring the execution of the 10 baseline tasks into inter-related and iterative steps,
the RPM can effectively exercise his/her oversight authority. RPMs should note that this
iterative approach is merely one of many logical methods for organizing search activities.
Other approaches may be more appropriate in different situations.
A suggested structure for conducting the baseline tasks prior to the preparation of the
baseline reports is presented below:
* Conduct preliminary records review (simultaneously)
conduct title search to identify past and present site owners and possibly to identify
adjacent property owners for possible future reference
identify government agencies that may have relevant information and collect
documents
conduct interviews with government officials to develop information on site
operations that may not be recorded in documents
update and verify names and addresses
* Issue information request letters as authorized by section 104(e) of CERCLA and
section 3007(a) of RCRA to owners and operators.
* Perform records compilation, organization, analysis, and follow-up
collect and copy all owner/operator records
organize files into a useful and easily accessible source of information
develop a concise history of the site and operations at the site; review for
information gaps
obtain additional information about PRPs and their status, including financial
status
develop a list of other possible PRPs, identifying generators and transporters
verify PRP names and addresses. Ensure that any name changes, mergers,
acquisitions, and dissolutions are accurately recorded
.. for persons and unincorporated entities, this information should include
association with other PRPs and involvement at the site
.. for corporations, this information should include the date of incorporation,
whether corporation currently exists, names of parent or successor corpora-
tions. ORC should review all PRPs where liability is based on a parent/
subsidiary or successor theory
follow up on all leads to ensure a comprehensive identification of PRPs involved
at the site. Confirm that sufficient evidence has been collected to establish the
elements of liability for each owner/operator.
4 Prepare the baseline report. Refer to the format in Exhibit IV-2.
D.
I PttorQ
tn
SGCtion 104(6) The initial steps in the baseline search, discussed above, will produce basic information
a'DOUt me PRPS at a s'te- The information will identify owners and operators and provide
leads on generators. As part of the baseline search, the owner or operator should be
required to provide information that is as complete as possible under the circumstances.
FollOW-UD La(;er> as part of the interim final report regarding generators and transporters, it will be
necessary to follow up on time frames, amounts, and the hazardous substances in the
materials.
The contractor can develop an initial list of people who should receive information request
letters, however, the RPM, in consultation with Regional counsel, is ultimately responsible
for selecting the recipients. Information request letters may be issued in one of two ways:
as separate letters or as part of the general notice letter.
PRP Search, Notification, and Information Exchange— 9
-------
Typically, the information requested during the baseline search includes details concerning
the waste operations and waste management practices of the past and present owners/
operators. It also seeks particular information on the time period of disposal or treatment
and on generators (PRPs, including transporters that may have contributed hazardous
substances to the site), transporters, waste volumes, and the nature of the hazardous
substances at and sent to the facility. The RPM should specifically request information on
the RCRA designation of all the waste the PRP sent to the facility or site. The facts
obtained from the recipients also will assist Regional management to identify additional
PRPs, issue additional information requests, and conduct interviews.
The facts collected from the information request letter will help the RPM determine
whether the respondent should receive a general notice letter. For this reason, the Agency
has articulated a preference for using information request letters to gather the initial facts
about PRPs.
Statutory Authority
Section 104(e) of CERCLA and section 3007(a) of RCRA authorize the Agency to issue
information request letters. RCRA section 3007 includes sites with hazardous wastes as
defined in section 1004(s) which is not limited to Subtitle C. The authority to conduct
information gathering activities has been delegated to the AA, OSWER, and the AA, OE
by Delegation 14-6, "Inspections, Sampling, and Information Gathering, Subpoenas and
Entry for Response" (September 13, 1987). Under Delegation 14-6, the authority of
Regional Administrators to issue compliance orders or subpoenas is limited by the require-
ment that they must first consult with AA, OE (or his/her designee). On November 19,
1987, AA, OE redelegated this consultation authority to the Associate Enforcement
Counsel for Waste.
General Content of 104(e)
Letters
The information request letter should identify the site and briefly describe it. The letter
should cite EPA's statutory authority under section 104(e) of CERCLA and section
3007(a) of RCRA to request the information. The 104(e) letter should indicate that the
Agency plans to vigorously enforce its information gathering authority. RPMs should
specifically refer to the enforcement provisions in section 104(e)(5) of CERCLA. RPMs
also should give a general statement setting forth the purpose of the request and its
relationship to the overall case.
Recipients should be requested to provide information as indicated in OSWER Directive
9834.4A, "Final Guidance on Use and Enforcement of CERCLA Information Requests
and Administrative Subpoenas" (August 1988). This includes the following categories of
information:
* Owners
names and addresses, including updated information
periods of ownership and type of ownership
corporate successorship
site history during ownership including conditions, operations, disposal (includ-
ing disposal and the substances disposed of during periods of past owners and
operators of the facility [for liability], and information on amounts, nature, and
locations for the remedial investigation)
information on whether wastes were RCRA hazardous wastes (for evaluation of
potential ARARs)
lessors/lessees and the above information about them
information related to defenses; de minimis status
for small businesses, individuals with control
10-PRP Search, Notification, and Information Exchange
-------
* Operators
similar to above, except operation
individuals in charge
* Financial Information
ability to pay
insurance (PRP's comprehensive general liability and environmental impairment
insurance)
+ Information that the owner/operator has concerning wastes at the site and possible
generators/transporters
records of names/addresses, quantities, substances
any arrangements made with regard to materials sent to or from the site
* A description of information the owner/operator has on the total and each shipment of
materials transported to, stored, treated, or disposed at the site including
dates of shipment or disposal
quantity and nature of the materials
hazardous substances (as defined in 40 CFR section 302.4) contained in the
materials. This includes information on the waste and waste stream as possible
RCRA hazardous wastes to enable the Agency to determine if RCRA may be an
ARAR (e.g., land ban)
updated names and addresses
+ Documents
copies of ail business records relating to activities at the site, including customer
lists, gate logs, ledgers, invoices, accounts receivable and back up income records
for taxes, correspondence
* Names and addresses of individuals who have information regarding the above
* Any data or studies resulting from environmental investigations at the site
4 A description of the files searched by the person (or corporation) in response to the
Agency's request
+ Special information for particular classes of sites, such as municipal landfills
* A description of the recipient's personal or corporate relationship to die site.
The response must be in writing. The letter also should indicate that the PRPs are respon-
sible for informing the Agency if any information contained in the PRPs' response is
confidential and subject to protection under section 104(e) of CERCLA.
The Agency's statutory information-gathering authority is not limited to collecting facts
directly relating to the hazardous substance release. EPA has authority to seek any
information that is reasonably calculated to lead to information about the release.
In some cases, the recipient will be unable to provide EPA with the information sought.
Therefore, RPMs should include a request that the person (or corporation) submit an
affidavit describing the scope of his/her investigation if the search does not disclose all of
the information sought. The affidavit must be signed by a corporate officer. The informa-
tion request letter should inform the recipient about opportunities for consultation with
EPA.
Municipal Sites ^s provided in the "Interim Policy on CERCLA Settlements Involving Municipalities or
Municipal Wastes" (OSWER Directive 9834.13), all municipal and private party owner/
operators and generator/transporters should be included in the information gathering
PRP Search, Notification, and Information Exchange—11
-------
process. In the initial set of questions to owner/operators, it is important to request
information on the nature of wastes disposed of at the site, including whether municipal
solid waste and sewage sludge were deposited. The identities of transporters and persons
who arranged for disposal should be sought. Records should be routinely collected and
reviewed.
Insurance Information
Section 104(e)(2)(C) of CERCLA expressly grants the Agency authority to request
information relating to a party's ability to pay for or perform a response action. In effect,
the Agency has the authority to ascertain whether a PRPs' insurance policy may cover and
is sufficient to pay for the costs of remedying the damage. RPMs should inquire about the
PRPs' comprehensive general liability and environmental impairment insurance. RPMs
should use two approaches to obtain information about the PRPs' insurance coverage:
* Ask general questions
* Request a copy of the policy.
RPMs should be as neutral as possible when requesting information about the PRPs'
insurance policies. RPMs should avoid using terms such as "pollution exclusion," "sud-
den," "non-sudden," or "accidental." These terms have special meaning in environmental
insurance law. RPMs should ask the PRP to provide information such as the name of the
company(s), the policy number, the effective dates of the policy, and the "per occurrence"
limits of each policy.
RPMs should request that the PRP provide a copy of his/her insurance policy. This is an
effective way for RPMs to obtain necessary insurance information without having the PRP
risk compromising his/her coverage. If the PRP does send a copy of the insurance policy,
RPMs should consult with ORC to determine the extent of the PRPs' coverage.
Written Response and
Due Date
E. Compile, Organize,
and Analyze 104(e)
Letter Responses
The information request letter should require a written response under oath in an affidavit
and contain a definite due date. This date should reflect the type and volume of informa-
tion that the RPM anticipates will be necessary for the recipient's answers to be respon-
sive. Generally, 30 days from the date of receipt is deemed to be an adequate time for
responding.
RPMs should inform the recipient about the possible civil penalties that may be imposed if
the recipient fails to respond. Under section 104(e)(5)(B)(ii) of CERCLA, the Agency
may request that a court impose penalties of up to $25,000 per day for unreasonable non-
compliance with the information request.
RPMs should send the letter by certified mail, return receipt requested. RPMs should
avoid using post office box addresses because there may be no signature to indicate receipt
of the letter. The information on the return receipt provides the Agency with proof (the
signed receipt card) that a representative of the PRP received the letter.
Owner/operator responses to information request letters should be available before the
preparation of the baseline report. The information in the responses should be analyzed
with an eye toward extracting information that can be presented in the baseline report and
the PRP evidence sheets. Refer to Exhibit IV-2 to see the format for this information. The
most important information request issue is review and follow-up; therefore, it should be
noted that a more detailed information request may be issued after the baseline report has
been prepared. In situations where the response to section 104(e) letters appears false, the
RPM should refer the situation to Regional Counsel.
Responses to information requests should be organized alphabetically by PRP and placed
in an appendix to the baseline report. The RPM should ensure that there is no unneces-
sary copying. References to the information contained in a response should be made to
12-PRP Search, Notification, and Information Exchange
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this appendix. By organizing the responses in this manner, the RPM greatly simplifies the
Freedom of Information Act (FOIA) response process in that the information request
responses are readily accessible for review, copying, and dissemination at the proper time.
Responding to FOIA
Requests
PRPs may request information under the Freedom of Information Act (FOIA). RPMs
should agree to provide only the information and documents that are within the scope of a
proper request. Under FOIA, the RPM can decline to provide "investigatory records
compiled for law enforcement purposes, to the extent that the production of such records
would interfere with enforcement proceedings." The RPM also may decline to provide
pre-remedial deliberative process material under FOIA exemption 5. RPMs should
provide only the information that the statute requires. PRPs who do not respond to infor-
mation requests are not given information until they respond. RPMs should not send the
PRPs an entire copy of either the baseline or interim-final reports. If RPMs have any
questions as to the appropriateness of complying with the FOIA request, they should
contact an attorney in ORC.
Enforcement
Strategy for Non-
Compliance With
Information Requests
If recipients of section 104(e) letters ignore EPA's requests for information within the
specified time (usually 30 days) or provide incomplete answers, the Region can implement
the following enforcement strategies:
* Issue an Administrative Order to compel compliance with the request for responsive
written information
* Initiate a judicial action seeking
a court order compelling the recipients to provide the requested information and/
or documents
civil non-compliance penalties.
The RPM should consult with the Regional attorney to decide which enforcement strategy
to implement at a particular site.
Administrative Order to Compel
Compliance
Under section 104(e)(5)(A), the Agency can issue an Administrative Order to compel
compliance with the information request. Administrative orders are issued by EPA and
involve a notice and an opportunity for consultation. Consequently, EPA can respond
promptly to a recipient's non-compliance. However, if the recipient continues to ignore
the request for information, the Agency will have to refer to DOJ a petition to enforce
EPA's Administrative Order. This process may be time-consuming.
Judicial Action to Compel
Compliance
Section 104(e)(5)(B) of CERCLA provides the authority to initiate a civil lawsuit to
compel a person to respond to the Agency's information request and substantial monetary
penalties against a PRP who fails to respond. These civil penalties are based on strict
liability. EPA does not have to prove that the PRPs intended to violate the law by not
responding in a timely manner. Therefore, the fact that a recipient says that he/she did not
intend to violate the law is irrelevant. The PRP is still subject to civil penalties imposed by
the court.
When the Agency refers a case to DOJ to enforce an information request, the referral
should be handled in accordance with the procedures set forth in "Expansion of Direct
Referral of Cases to the Department of Justice" (OE, January 1988). In time-critical
situations, the RPM should refer to "Procedures for Processing Oral and Other Expedited
Referrals" (OE, December 1987) and "Waste Procedures for Processing Oral and Other
Expedited Referrals" (OE, April 1988).
Section IV of this chapter discusses specific case examples of the Agency using judicial
action to enforce its information requests.
PRP Search, Notification, and Information Exchange-!3
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F. Baseline Search
Progress Review
The RPM is responsible for managing the search in accordance with the strategy, updating
the strategy as necessary, and meeting schedules. Exhibit IV-3 shows these responsibili-
ties in detail.
RPMs must ensure that sufficient follow-up is being made to site information so that the
baseline report contains complete and accurate information in light of its limited purpose.
This is particularly important with regard to owner/operator liability and financial viabil-
ity; updated PRP names and addresses; information from owners, operators and the State
about the volume and nature of substances sent to the site and the contributing parties; and
the information that is being used to determine whether a person should receive a notice
letter and the evidence of each PRP's liability. It is important to review responses to
section 104(e) requests for completeness. RPMs also must ensure that the leads that are
uncovered by the contractor during the investigation are followed up and that the action
taken is properly documented. Follow-up letters to section 104(e) requests may be needed
when the PRPs fail to respond adequately or EPA identifies other relevant pieces of
information.
It is important that both the contractor and the RPM keep records of initial and follow-up
actions and determinations so that a well-documented trail is maintained. Contacts with
both interviews and records sources should be documented. This ensures that if in the
future, due to needs for further evidence or changed personnel, the investigation were to be
reconstructed, sufficient documentation would exist to determine what leads had been
followed up and how all reasonably available sources of information had been exhausted.
This written record will attest to the thoroughness and completeness of a particular PRP
search.
G. Prepare Baseline
Report
The baseline report presents a concise summary of the information obtained from the
baseline search activities. Back-up information is set forth in supplemental appendices. In
effect, the baseline report is an interim report that contains available information in the
areas specified in Exhibit IV-2. It provides information on the owner/operators and
provides leads on generators and transporters, enabling the RPM and Regional manage-
ment to assess the extent and nature of gaps in the PRP data.
RPMs, with the input of ORC and the CI, should carefully review the report to determine
whether it is likely that all possible PRPs have been listed, the completeness of waste-in
information, and the sufficiency of the information documenting a PRP's liability and
financial viability. All information in the report should be attributed to a specific source.
Reports are enforcement confidential. RPMs should ensure that the cover of the report
clearly states that it was prepared in anticipation of litigation. This enables the Agency to
protect the information contained in the report. Any copies of reports should be numbered
for tracking purposes.
H.
Management
Review
Regional supervisors, with ORC, RPM and CI input, will review the baseline report to
determine whether the search activity at the site has generated the information needed to
identify all PRPs, determine their contribution to the site, and establish their liability and
viability. In addition, the review should consider the reasons for pursuing or not pursuing
leads uncovered by contractors. The search strategy should be updated in view of the
baseline report and management review. During the review process, RPMs should
continue search activity, such as follow up on section 104(e) requests. The review is
intended to facilitate, rather than impede, the information-gathering process. Once the
review is complete, the person in charge of the search should ensure that the search
personnel and contractors implement all suggested changes and follow-up activities.
I4-PRP Search, Notification, and Information Exchange
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I. Section 104(e)
Letters to Generators
and Transporters
The approach for issuing information request letters to persons who arranged for disposal,
hereafter called generators, and transporters is similar in scope to the procedures involved
in issuing letters to owners and/or operators. The section 104(e) letters issued to genera-
tors should request information regarding their liability. Special attention should be given
to corporate parent/subsidiary and successor issues. In addition, RPMs should seek
information to resolve the issue of whether the substance was a listed or characteristic
hazardous waste as defined by RCRA.
Listed hazardous waste is defined in 40 C.F.R. section 261.30. Each listed waste has an
EPA Hazardous Waste Number that precedes the name of the substance. Under 40 C.F.R.
section 261.20, a substance also may be deemed to be RCRA waste if it exhibits any one or
more of the following characteristics: ignitability, corrosivity, reactivity and TCLP
(Toxicity Characteristic Leaching Procedure) toxicity. To determine whether the sub-
stances present at a particular site meet this criteria, RPMs should consider asking ques-
tions along the following line: "For all waste sent to the facility or site, identify any
known RCRA listing designation as defined by 40 C.F.R. section 261.30. If it is unknown
whether the wastes sent to the facility or site would be listed wastes if generated after
1980, describe the chemical processes of each waste stream in sufficient detail to enable
EPA to determine whether the waste is listed, including information on 'characteristics'
designation under RCRA."
Municipal Sites A key feature of EPA's "Municipal Settlement Policy" (OSWER Directive 9834.13) is die
notification procedures for municipalities and private parties who generate or transport
municipal solid waste (MSW), sewage sludge, and trash from commercial, institutional, or
industrial entities. It is necessary to understand the notification policy in order to ensure
that die information needed in applying it is obtained.
Municipal and private party owner/operators generally will be notified if they were past
owners or operators of facilities at the time of disposal of hazardous substances, or they are
present owners or operators at a site where hazardous substances have been released or
there is a threatened release.
In general, municipalities and private parties who generated or transported MSW or
sewage sludge will not be notified as PRPs, unless:
* The Region obtains site-specific information that die MSW or sewage sludge contains
a hazardous substance and
* The Region has reason to believe that the hazardous substance is derived form a
commercial, institutional, or industrial process or activity.
EPA generally will not notify municipalities or private parties who are generators or
transporters of MSW if only household hazardous wastes (HHW) are present. However,
such parties may be notified as PRPs if the MSW contains hazardous substances from non-
household sources. These sources include, but are not limited to, small quantity generator
(SQG) wastes from commercial or industrial processes or activities, or used oil or spent
solvents from private or municipally-owned maintenance shops.
In general, parties who generated or transported trash from a commercial, institutional, or
industrial entity will not be notified as PRPs, if such parties demonstrate to the Region
that:
+ None of the hazardous substances contained in the trash are derived from a commer-
cial, institutional, or industrial process or activity and
+ The amount and toxicity of the hazardous substances contained in the trash does not
exceed that which one would expect to find in common household trash.
Municipalities or private parties who are generators or transporters of "any other hazardous
substance" will generally be notified as PRPs, if the Region obtains information that the
substance is hazardous or mat it contains a hazardous substance.
PRP Search, Notification, and Information Exchange-15
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In view of the above, it is necessary to seek information regarding whether MSW or
sewage sludge at the site contained a hazardous substance and the source (common
household trash or waste from commercial, institutional, or industrial process).
Reference
OSWER Directive 9834.13, Interim Policy on CERCLA Settlements Involving Municipali-
ties or Municipal Wastes, (referred to as the "Municipal Settlement Policy") (December 6,
1989).
J. Specialized
Investigative Tasks
As part of the revised search strategy, RPMs should consider which of the 18 specialized
tasks are needed to conduct a thorough search. Refer to "Managing the Search Process" in
Part I of this chapter for a discussion of when to use these specialized tasks. RPMs should
exercise their professional discretion when determining which tasks to conduct at a site.
When appropriate, the specialized search tasks may be completed concurrently with the 10
baseline tasks.
Administrative
Subpoena
Administrative subpoenas are authorized under section 122(e)(3)(B) of CERCLA. A
subpoena compels an individual to answer questions under oath, and when requested, to
produce documents. The Regional Counsel will secure issuance of the subpoena and
select the location for the proceeding. If the witness ignores the subpoena, the Regional
Counsel will prepare a referral to seek an order compelling the witness to respond.
As a practical matter, administrative subpoenas may be useful in obtaining information
from the following types of persons: former employees of the PRP company, persons
living near the site, and officers of the PRP company. When developing a list of potential
witnesses, the RPM should confirm that the contractor has not overlooked any plausible
source of information. For example, the person who works at the landfill and the truck
drivers who drove the PRPs' trucks may be able to provide a wealth of information about
the PRPs' waste management practices.
While there is no statutory authority prohibiting the use of administrative subpoenas for
gathering initial information, RPMs should not use subpoenas for this purpose. The
Agency has stated a preference for using information request letters to obtain initial
information about a person's involvement at the site. Subpoenas inherently support the
settlement process by increasing the amount of relevant information.
K.
Interim-Final
Report
As indicated by the name, the interim-final report is not viewed as an end in itself. Rather,
the interim report is one of the many steps in the overall investigation. The investigation
at a site should continue until all necessary reasonably obtainable information pertaining to
a PRPs' liability and viability is collected.
The time at which the interim final report is completed varies, depending on the response
activity schedule for the site and the progress mat is being made on the PRP search.
Ideally the report should be available in time for issuance of the SNLs and the release of
information on the names and addresses of the PRPs, and the volume and nature of
substances sent to the site (waste-in list). If possible, this takes place approximately six
months before the RI/FS special notice letters are issued. In some cases, particularly
multi-party sites, it may be necessary to prepare preliminary information in order to issue
general notice letters, special notice letters, and to release information to the PRPs.
Updated versions of the report can then be prepared for the RD/RA special notice and,
possibly, for CERCLA sections 107 and 106 actions. The format that should be followed
for all PRP search reports is shown in Exhibit IV-2.
16-PRP Search, Notification, and Information Exchange
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As noted previously in subpart C, ORC should review instances in which a generator or
transporter is designated as a PRP based on a parent/subsidiary or corporate successor
theory.
RPMs/CIs should focus their attention on the facts contained in the report and not lengthy
historical or other narratives. RPMs should consider using evidence summary sheets. This
format focuses the research on the type of information needed for evidence. The evidence
sheet format also standardizes the data presentation so that it is more readily transferrable
to a tracking system or inventory data base.
When reviewing the interim-final report, the RPM must confirm mat the contractor has
carefully documented the rationale tying each PRP to the site and that the report substanti-
ates the evidence.
Interim Report
Follow-up
Information on new PRPs, as well as additional evidence on the liability of existing PRPs,
is likely to be uncovered after the completion of the interim-final report. For this reason, a
PRP search is an on-going investigation. The search does not end with the completion of
the interim-final report, the issuance of general and special notice, or the release of the
contractors from the PRP search work assignment. A PRP search is completed when
reasonable leads concerning a person's involvement at a site have been exhausted, taking
into account the amount obligated for the response action or a settlement. It should be
noted that in many situations, circumstances may require that the search continue through-
out the course of the RI/FS, and possibly, into the RD/RA.
The PRP search is an on-going investigation, in fact, in some cases, it is never really
closed. To compensate for the on-going nature of search activities at a multi-party site, the
interim-final report may be submitted on a preliminary basis in time for general or special
notice, and on an interim-final basis when all search activity and follow-up for the prelimi-
nary report is completed.
M.
General Notice
Letters (GNLs)
General notice letters designate an entity as a PRP. These letters are preliminary determi-
nations of potential liability, as opposed to absolute determinations of liability. Therefore,
there is no requirement that the RPM must possess substantial evidence of a person's
liability before a GNL can be issued. Besides designating a person as a PRP, the GNLs are
used to encourage PRP coalescence, an important step prior to negotiations. Therefore,
GNLs should be issued as early in the PRP search process as possible.
GNLs generally contain the following information:
+ Notification of potential liability under sections 106 and 107(a) of CERCLA, includ-
ing notification that
section 107 authorizes the Agency to initiate cost recovery actions to recover all
costs not inconsistent with the NCP incurred in responding to the release or
threatened release of hazardous substances
section 106 authorizes the Agency to issue Administrative Orders compelling the
PRP to implement the response selected by EPA to abate an imminent and
substantial danger caused by the release or threatened release of hazardous
substances
* Discussion of any planned response measures, to the extent known; the Agency
encourages PRPs to voluntarily perform or finance those response activities that EPA
determines to be necessary at the site
+ Information about the Agency's discretionary authority under section 122(e) of
CERCLA to formally negotiate the terms of settlements pursuant to special notice
procedures if EPA determines that such procedures would facilitate an agreement and
would expedite remedial action at the site
PRP Search, Notification, and Information Exchange-17
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* Information about the general opportunity to discuss any selected response measures
and opportunities to undertake the selected response action, including
the merits of forming a PRP steering committee
a response date for the PRPs to respond, in writing, indicating their willingness
to participate in the response activities at the site
a name and a phone number of the EPA contact for PRPs (or their attorneys) to
call
+ Information about the development of the Administrative Record pursuant to section
113(k)ofCERCLA.
RPMs should use their professional judgment to tailor the contents of GNLs to accommo-
date the circumstances at a specific site. GNLs should be sent by certified mail, return
receipt requested. A formal record documenting the PRPs' receipt of the letter should be
created. RPMs should carefully document all subsequent correspondence (phone calls or
letters) received from the PRP or the PRP's attorneys.
In general, the standard governing who receives a GNL is based upon a reasonable belief
that a potential recipient may be a PRP. Certainty is not required. GNL recipients must be
approved by both Regional management and ORC. RPMs should carefully consider the
question of who receives a GNL. Once a person or corporation has been designated as a
PRP and issued a GNL, their name will be released as a PRP in response to FOIA requests
about the site.
At municipal sites, in particular, the issuance of notice is governed by EPA's Municipal
Settlement Policy. The notification provisions of this policy are generally summarized in
Part I, section 104(e) Letters, above. In addition, it should be noted mat notwithstanding
the above general policy, there may be truly exceptional situations where EPA may
consider notifying generators/transporters of MSW that contains a hazardous substance
derived only from households. Such notification may be appropriate where the total
contribution of commercial, institutional, and industrial hazardous waste by private parties
to the site is insignificant when compared to the MSW. In this situation, the Regions
should seriously consider notifying the generators/transporters of MSW containing a
hazardous substance from households as PRPs and include them in the settlement process
where it would promote either settlement or response action at the site.
GNLs should be issued in "waves" as soon as the necessary information becomes avail-
able, and they should precede special notice for the RI/FS. The first wave is issued when
owners and operators are identified. Subsequent waves are issued as groups of generators
and transporters are identified. Finally, additional letters are sent to PRPs who have been
identified by other PRPs through negotiations. If special notice letters for RI/FS are
scheduled and general notice letters have not been issued, GNLs need not be sent if they
would not advance the process.
Copies of GNLs should be sent to:
* Information Management Section of the Program Management and Support Office of
OWPE at EPA Headquarters
* Regional Administrative Record Coordinator
* Regional Community Relations Coordinator for inclusion on the community relations
mailing list
* Appropriate State representative(s)
* Federal and State Natural Resource Trustees.
References
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).
18-PRP Search, Notification, and Information Exchange
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N. Developing
Information on PRP
Waste Contribution
OSWER Directive 9834.10A, "Model Notice Letters" (February 7, 1989).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing Lists" (February 6,
1989).
The collection and analysis of information on PRP waste contribution is part of the PRP
search process. Information on PRP waste contribution can include manifests, waste
tickets, logbooks, billing records, canceled checks, and process engineering information.
In addition, PRPs may provide information on waste contribution in their responses to
information requests issued under section 104(e) of CERCLA. Information on PRP waste
contribution is commonly referred to as "waste-in information."
There is no specific point during the PRP search process when waste-in information is
certain to become available. Possible sources of waste-in information include, but are not
limited to, on-site files and government offices, particularly when a prior state or federal
enforcement action has been taken. Waste-in information also can be developed through
section 104(e) information requests. It is important to recognize that waste-in information
may never be available at certain sites. Nevertheless, RPMs should be prepared to collect
and analyze waste-in information as expeditiously as possible when it becomes available.
Transactional databases are developed to organize and analyze waste-in information.
These databases are used to produce waste-in lists and volumetric rankings. A waste-in list
provides the volume and nature of substances contributed by each PRP identified at a
facility on a per shipment basis. A volumetric ranking is a ranking by volume of the
hazardous substances at a facility. In most cases, however, a volumetric ranking refers to a
ranking by volume of PRPs at a site.
Transactional database resources are available under the Technical Enforcement Support
(TES) contracts and the National Enforcement Investigation Center's (NEIC's) Contract
Evidence Audit Team (CEAT). Requests for transactional database support under TES are
made through the usual TES work assignment process. CEAT support must be requested
from NEIC.
The development of waste-in information helps the Agency to meet the special notice
information release burden under CERCLA section 122(e)(l). If EPA invokes special
notice procedures under CERCLA section 122(e)(l), the Agency must provide PRPs with
waste-in lists, volumetric rankings and a list of PRP names and addresses "to the extent
mat such information is available." More importantly, the development and release of
waste-in information promotes PRP organization which can streamline and expedite the
settlement process. For additional information on waste-in lists and volumetric rankings,
consult OSWER Directive 9835.16, Guidance on Preparing and Releasing Waste-In Lists
and Volumetric. Rankings for Release to Potentially Responsible Parties (PRPs) Under
CERCLA, February 22,1991.
0. On-going
Information Exchange
Following general notice, RPMs may hold informal discussions with the PRPs (as distin-
guished from the formal negotiations pursuant to special notice procedures). If PRPs are
represented by an attorney, Regional Counsel must be present. These informal discussions
generally result in an on-going exchange of information. A PRP is generally provided a
copy of any information EPA may have regarding that PRP following the PRP's response
to an information request. More broadly, as soon as is reasonably possible, the RPM
should provide the PRPs with information on the names, addresses, volumes, and nature of
substances from all PRPs.
The policy governing information release to PRPs is quite flexible and provides for review
on a case-by-case basis. The Agency has a strong preference toward information release in
that it is believed, in most cases, to expedite settlement. In some cases, however, Regions
should reserve the right to exchange information with PRPs on a reciprocal or conditional
PRP Search, Notification, and Information Exchange-19
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basis if it is believed that reciprocal exchange is the appropriate action. See OSWER
Directive 9835.12-Ola, "Revised Policy on Discretionary Information Release Under
CERCLA" (March 1993). This revised policy includes a more forceful statement on the
value to the Agency of releasing information, particularly waste-in information, to PRPs.
In addition, this policy makes clear that waste-in information, to the extent it is available,
should normally be released well before special notice is issued.
One way to facilitate information exchange with PRPs is through a meeting. RPMs should
propose a meeting when they believe that it will enhance the likelihood of successful
negotiations. In the event that these informal talks break down, RPMs should work
closely with Regional attorneys to develop a realistic negotiation strategy. In addition,
RPMs should investigate the possibility of using alternative dispute resolution (ADR)
techniques to resolve issues the RPM has with the PRPs or that PRPs have among them-
selves.
Reference
OSWER Directive 9834.13, Interim Policy on CERCLA Settlements Involving Municipali-
ties or Municipal Wastes, (referred to as the "Municipal Settlement Policy") (December 6,
1989).
20-PRP Search, Notification, and Information Exchange
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Section III. Planning and Reporting Requirements
The RPM should implement a management strategy that tailors the PRP investigative tasks
so that the PRP search works in conjunction with the overall enforcement strategy at a
particular site. The Agency has made a commitment to improve the timeliness and
completeness of PRP searches. RPMs should seek the assistance of ORC attorneys and
other key players early in the search process to achieve high-quality PRP searches early in
the process.
In I>eneral> RPMs or CIs should initiate PRP searches before the site is proposed for
inclusion on the NPL. Ideally, the PRP search should be initiated when EPA deems a
response action may be warranted during the site assessment and completed shortly after
the NPL proposed listing. The interim-final PRP search report should be completed at
least 90 days before the funds are obligated for a projected RI/FS start. For SCAP report-
ing purposes, a PRP search is deemed to be complete when either the site classification
report has been issued, or when the site classification has been otherwise determined.
B.
Budget
The quality of a search is a function of planning, proper and focused utilization of contrac-
tors, oversight, and follow up. Sufficient money must be budgeted in the enforcement
case budget. RPMs should consult with their management to determine the Region's
limitation on the initial commitment of resources for a PRP search. This figure varies
from Region to Region. The budget for initiating NPL PRP Searches is $25,000 for four
quarters. On-going PRP Searches are priced at $24,000 for four quarters, with the assump-
tion that the duration of on-going searches is 12 quarters. Note that Headquarters and the
Regions have formed a workgroup which will assess pricing issues and recommend new
pricing guidelines. The result of this study is expected to affect the pricing used in
developing the FY 95 budget. The object of the search is to uncover all reasonably
available evidence of the PRPs' liability. The RPM should ensure that the investigative
process is planned and conducted properly the first time. If an RPM determines that the
conditions at a particular site require supplemental work and funding, the RPM should
ensure that these planned expenses are reported on the SCAP.
When planning the search budget, RPMs should avoid under-committing resources to the
necessary search, and should be realistic in committing resources. Under-committing
resources is as inefficient as over-committing resources. When RPMs under-commit, they
limit the search activities. For instance, in a limited search, the contractor may only
perform a records search and conduct several interviews with government officials. This
limited search may not be adequate for a complex site. Poor-quality searches do not
produce the type of evidence needed to establish a person's liability under section 107 of
CERCLA. Without sufficient information, a second and more complete search must be
conducted. Consequently, the Agency loses both time and money. Therefore, RPMs
should work closely with Regional management in determining how to effectively commit
resources for a particular site.
c.
Reporting
Requirements
NPL PRP searches are planned and funds requested on a site-specific basis. PRP searches
should be planned for all sites listed on the NPL. This is a SCAP reporting measure.
A matrix of SCAP/STARS measures relevant to PRP Search activity is presented as
Exhibit IV-4. RPMs are responsible for entering accurate data into CERCLIS/WasteLAN
or providing that information to the IMC for entry into CERCLIS/WasteLAN.
PRP Search, Notification, and Information Exchange-2l
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Exhibit IV-4
SCAP/STARS Measures Relevant to PRP Searches
Activity
NPL PRP Start
Non-NPL PRP Search Start
NPL Search Completion
Non-NPL Search Completion
STARS
Reporting
SCAP
Plan/Report
X
X
X
X
Quarterly
X
X
X
X
Annual
X
X
X
X
Definitions for:
* NPL Search Start • If the search is being conducted by a contractor, the start date
is considered to be the date the work assignment is procured. If it is conducted by
EPA, the start date is the day EPA staff begins PRP search activities.
* Non-NPL PRP Search Start - See NPL Search Start
* NPL Search Completion - The PRP search is complete when PRPs at a site have
been identified, all applicable activities described in the Agency's PRP Search
Manual have been completed, and the date and the outcome of the search has been
determined and entered into WasteLAN. If no PRPs are found, the date and the
outcome of the search are entered into WasteLAN. This definition applies to both
Phase I (single owner, operator site) and Phase II (multi-generator site) PRP search
accomplishments. Possible outcomes of PRP searches are: NV (Search complete,
no viable PRPs), VC (Viable PRPs - cannot do the work), VP (Search complete,
viable PRPs)
+ Non-NPL Search Completion • See NPL Search Completion.
For specific coding requirements into WasteLAN, see the Enforcement Data Quality
Manual Chapter I, Non-NPL PRP Search (RP), and NPL PRP Search (NS) or see your
IMC.
22-PRP Search, Notification, and Information Exchange
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Section IV. Potential Problems/Resolutions
This section addresses several problems that RPMs may encounter when attempting to
identify and document the involvement of PRPs at a particular site.
A.
Timing A comprehensive PRP search and notification process should be initiated early in the
remedial process. Early searches facilitate PRP coalescence for settlement negotiations
and promote increased PRP participation in ESI, early actions, RI/FS and RD/RA activity.
Conversely, the failure to properly plan the search, oversee it, ensure follow up and
"complete" it, may unnecessarily delay the RD/RA negotiations, stall cost recovery or
CERCLA section 106 case development, delay the start of the response action, limit PRPs'
ability to have due process, or cause EPA to implement a Fund lead response, which, in
turn, may stop action at another site from being started or require costly litigation later.
B. Clarifying Roles
and Responsibilities
The RPM should ensure that all parties involved in the PRP search process clearly under-
stand their roles and responsibilities. This objective can be accomplished by:
* Developing PRP search management plans
* Tailoring contractor's work plan to site-specific requirements
* Assigning responsibility for follow-up
* Conducting an "evidence" review.
In some Regions, the RPMs spend time in the field gathering initial data to determine the
appropriate scope for the search process. In other Regions, the RPM assigns initial data
gathering tasks to the contractor and then uses this data to define the scope of the search
process at the kick-off meeting.
RPMs may use meetings as a means of improving the cooperative efforts of the contractor
and State and local officials. For example, these meetings could be used to provide the
contractors with a list of State and local government contacts. Before issuing such a list,
the RPM should provide the contractor with a letter of introduction. The purpose of the
letter is to introduce the contractor to State and local government officials and to inform
these officials that the contractor is working for EPA on a particular PRP search.
C. Examples Of The Agency has statutory authority to enforce its requests for information. There are
EnforcinQ Information several examples of the Agency's efforts to enforce its requests. Two cases are discussed
Requests
below.
The Cannons Sites
The Agency sought to enforce its request for information about a PRPs' involvement at the
Cannons sites in Massachusetts and New Hampshire, Region I. On March 28,1986, the
Agency sent letters to over 500 PRPs. Crown Roll Leaf, Inc. ("Crown") was one of the
recipients. The return receipt card indicated that Crown received the letter on April 1,
1986. A complete response was due within 30 days of receipt (i.e., May 1,1986). Crown
failed, without justification, to provide EPA with the requested information and documents
relating to the transportation of toxic waste. On August 18,1986, the Agency sent Crown
a reminder letter. Crown again failed to respond.
Section 3008(a) of RCRA was employed to enforce response to the notice letters (prior to
SARA, a number of notice letters were issued pursuant to RCRA section 3007). On
November 14,1986, the Agency sent Crown the following:
+ Administrative Order compelling a response
+ Administrative complaint
PRP Search, Notification, and Information Exchange—23
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* Proposed consent agreement.
The Administrative Order demanded Crown provide the requested information and
documents. The administrative complaint notified Crown it could contest liability for
failure to respond to the information request. The proposed consent agreement required
Crown to submit responses to the information request and to pay a penalty in settlement
for EPA's claims for failure to respond.
In December 1986, Crown's attorney telephoned a Regional attorney to discuss the matter.
After this conversation, Crown still failed to submit a written response to the Agency's
information requests. On February 16,1988, the Agency initiated a judicial action against
Crown. The Federal district court ruled that because the EPA information request form
specifically requested a written request, Crown's phone conversation with the Regional
attorney did not constitute adequate compliance.
This case is important because it supports the Agency's right to demand a written response
to the information request letter.
American ThiO-Chem Site In December 1992, the U.S. District Court for the Northern District of Texas ordered
Roger L. Tannery to pay EPA over $13 million, the largest penalty ever awarded for non-
compliance with orders under CERCLA. EPA filed the suit to recover cleanup costs of
$977,324 for a removal action conducted at the American Thio-Chem site and to recover
almost $12.5 million in civil penalties for Tannery's failure to respond to a request for
information issued under section 104(e). The civil penalty represents the maximum
penalty of $25,000 per day for the 499 days of non-compliance with the order.
24-PRP Search, Notification, and Information Exchange
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Section V. References
PoliCV OSWER Directive 9835.0, "Interim CERCLA Settlement Policy" 50 FR 5034 (December
5,1984).
OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving Munici-
palities or Municipal Wastes" (December 6,1990).
GllidanCG OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 1987).
OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program" (June 29,1989).
OSWER Directive 9834.0, "Releasing Identities of Potentially Responsible Parties in
Response to FOIA Requests" (January 26,1984).
OSWER Directive 9834.10-lb, "Model Notice Letters" (February 7,1989).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing Lists" (February 6,
1989).
OSWER Directive 9835.12-01 a, "Revised Policy on Discretionary Information Release
Under CERCLA" (March 1993).
OSWER Directive 9835.16, "Guidance on Preparing Waste-in Lists and Volumetric
Rankings for Release to Potentially Responsible Parties (PRPs) Under CERCLA" (Febru-
ary 22,1991).
OSWER Directive 9834.4A, "Final Guidance on Use and Enforcement of CERCLA
Information Requests and Administrative Subpoenas" (August 1988).
OSWER Directive 9835.1 A, "Interim Guidance on Potentially Responsible Party Partici-
pation in Remedial Investigations and Feasibility Studies" (May 1988).
OSWER Directive 9832.10, "Liability of Corporate Shareholders and Successor Corpora-
tions for Abandoned Sites Under the Comprehensive Environmental Response, Compen-
sation, and Liability Act (CERCLA)" (June 13,1984).
OSWER Directive 9829.0, "Policy for Enforcement Actions Against Transporters Under
CERCLA" (December 23,1985).
OSWER Directive 9834.12, "Final Guidance on Use of Alternative Dispute Resolution
Techniques in Enforcement Actions" (August 14,1987).
Manuals OSWER Directive 9834.3-1 A, Potentially Responsible Party Search Manual (August
1987).
U.S. Department of Justice Reference Document, The Elements of Liability under Sections
104,106 and 107 of CERCLA (December 1990).
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch and the Cost
Recovery Branch conduct periodic PRP Search Workshops and CI Conferences. For
additional information, contact 703-603-8940 or 703-603-8920.
PRP Search, Notification, and Information Exchange-25
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Contacts PRP searches: The CERCLA Enforcement Division's Guidance and Evaluation Branch:
703-6034826 or the Cost Recovery Branch: 703-603-8642.
Information Requests: OE Attorney Advisor at 202-260-3586, or an attorney in ORC.
Administrative Subpoenas: OE Attorney Advisor at 202-260-8865, or an attorney in ORC.
Alternative Dispute Resolution: OE Alternative Dispute Resolution Liaison, David Batson
at 202-260-8173.
26-PRP Search, Notification, and Information Exchange
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Section VI. Activities Checklist
This section discusses the RPM's management functions in overseeing the PRP search
process. The following checklist is not intended to present an exhaustive set of proce-
dures. RPMs should exercise their professional discretion when deciding what procedures
are appropriate for a particular site.
1) Conduct a preliminary PRP search
2) Develop a PRP search plan and assemble the resources needed to conduct
the PRP search activities
a) Ensure that contractor dollars are budgeted for negotia-
tions in the enforcement case budget
b) Develop search plan/strategy
* Activities
• Roles and responsibilities
• Scheduling
• Information management
c) Develop a detailed scope of work for the contractor
d) Develop a detailed resource plan for EPA staff
3) Conduct baseline information and records collection, interviews with
government officials, title search
a) Conduct initial baseline tasks
b) ^_ If appropriate, conduct additional (i.e., specialized) tasks
concurrently with these baseline tasks
4) Issue section 104(e) letters to owners and/or operators
a) Issue letters, even if there is only a single PRP or few
PRPs and there is information on them, verify it with a
section 104(e) letter
b) Obtain copies of documents
5) Compile, organize, and analyze responses from section 104(e) letters
a) Track response to letters
i) Establish the tracking system
ii) Determine identities of non-responders
and incomplete responders
b) Follow up on recipients who fail to fully comply with
the request for information
i) Send warning letters to recipients who provided
incomplete or inadequate information
ii) Determine whether an Administrative Order assess-
ing penalties should be issued if recipient fails to
respond to warning letter
iii) Consider initiating a judicial action to enforce the
information request order (also consider seeking
additional penalties for violating the order) if recipi-
ent fails to respond to warning letter
PRP Search, Notification, and Information Exchange—27
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6) Update PRP status
a) Determine current name and address
b) Resolve status of corporations that are defunct, dis-
solved, bankrupt, merged, sold or had parent
7) , Analyze, follow up, and conduct additional research
a) Resolve evidence evaluation sheets and financial
viability of owners/operators
b) Develop site history
c) Request supplemental information and interviews
regarding owner/operator liability
d) List preliminary generators and transporters
8) Draft the baseline report summarizing information obtained from the
baseline search. RPMs should ensure that the information needed to
document the PRPs' liability is sufficiently documented. The cover of the
report should clearly state that the document is "ENFORCEMENT
CONFIDENTIAL"
a) All information in the report should be attributed to
specific sources. Work done should be documented.
Information should be managed per plan
9) Regional management reviews the baseline report and approves revised
search strategy
a) Identify any data gaps and implement data collection
procedures
b) Adapt search plan for interim final report. Decide which
of the 18 specialized tasks to perform
10) Issue section 104(e) letters to generators and transporters
a) Link generators to the site
b) Resolve that generators wastes are hazardous substances
under CERCLA
c) Request information regarding the RCRA designation of
all waste sent to the facility/site
d) Seek to resolve the issue of whether the substance was a
listed or characteristic hazardous waste as defined by
RCRA [see 40 C.F.R section 261.30]
e) Track, follow up, and enforce
11) Update PRP status for generators and transporters
a) Determine current name and address
b) Resolve status of corporations that are defunct, dis-
solved, bankrupt, merged, sold, or had parent
12) Conduct interviews as identified in plan and as necessitated by review
and responses to section 104(e) letters
13) Conduct other appropriate additional search tasks as identified in strategy
and as necessitated by review of responses to section 104(3) letters
a) Analyze information for completeness, ability to issue
special notice (name and address; volume and nature of
substances; volumetric ranking), evidentiary sufficiency
and ability to plan
28-PRP Search, Notification, and Information Exchange
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b) Follow up as necessary
14) Prepare the interim-final report. Ensure that all information obtained
during the PRP search has been properly documented
a) Review evidence evaluation sheets, assessing whether
there is sufficient information to establish a person's
liability under section 107 of CERCLA; review financial
viability
b) Array information for special notice
c) Identify follow up work needed
d) Management review
e) Document persons against whom there is not enough
information to be identified as PRPs
15) Follow up report
16) Determine when to issue GNLs
a) Send a letter informing the individual (or corporation)
that the Agency considers it to be a PRP. Send a copy to
Headquarters for SETS
b) Assemble back up documents
c) Develop name and address list. Provide to community
relations coordinator, and administrative record coordi-
nator
17) Initiate an information exchange with PRPs
a) Meet with PRPs to provide them with information about
the site and to explain the negotiations process
b) Ensure that the contractor adequately updates the
transactional database to reflect the information pro-
vided by PRPs. Provide waste-in information to PRPs,
as appropriate.
PRP Search, Notification, and Information Exchange-29
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Appendix
PRP Search Plan
1. PRP Search Planning and Initial Strategy
a. Identify contractor and staff resource needs
b. Summarize team roles and responsibilities for managing and performing PRP
search tasks
c. Discuss the schedule of the PRP search in relation to the overall site timeline
2. Initial Assessment and PRP Search
a. Summarize information collected to date
b. Develop strategy for collecting and using information
Develop PRP correspondence tracking system and evidence files
- Follow up on recipients who fail to fully respond
c. Conduct initial search, including title search and interviews with Federal, State
and local government officials. (The usual focus is first on owners and
operators and then on generators and transporters)
3. Interim Assessment
a. Conduct analysis, identify issues, and project follow-up and additional PRP
search needs, including unique strategies
b. Ensure information regarding PRP liability is well-documented
c. Describe steps for PRP notification and information exchange
d. Develop a PRP list, including names and addresses
4. Conclusion of PRP Search
a. Indicate actions to enhance inter-PRP and PRP-Government relations, such as:
encouraging PRPs to form a steering committee, providing information to
PRPs and encouraging PRPs to use a facilitator to resolve disagreements
b. Assess ability to develop volumetric rankings and NBARs
c. Complete information collection (including use of subpoenas), distribution of
information (to include Administrative Record Coordinator and Community
Relations Coordinator), documentation of evidence and notification (including
special notice).
PRP Search, Notification, and Information Exchange-Al
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V. RI/FS NEGOTIATIONS/
SETTLEMENT
-------
Chapter V
RI/FS Negotiations/Settlement
Section I. Description of Activity 1
Introduction 1
Statutory Authority 1
Overview of the Negotiation Process 1
Early De Minimis 2
Roles and Responsibilities 2
RPM Responsibilities 2
ORC Responsibilities 2
OWPE Responsibilities 2
OE Responsibilities 3
DOJ Responsibilities 3
Section II. Procedures and Interactions 4
A. Decision to Start the RI/FS 4
B. Intergovernmental Review 4
C. Formation of the Case Team 5
D. Review PRP Search 5
E. Issue General Notice 5
F. Steering Committees and Information Exchange 6
G. Follow up on PRP Search 7
H. Natural Resource Trustees 7
I. Preliminary Scoping of the RI/FS 7
PRP Issues 8
J. RI/FS Statement of Work (SOW) 8
K. Draft Administrative Order 9
L. Issue Special Notice Letter 11
Timing of Special Notice 12
M. Good Faith Offer 12
Notify DOJ 12
N. Conditions for PRP Conduct of RI/FS 13
0. Negotiations Outcome - PRP-Lead RI/FS 13
P. Negotiations Outcome - Fund-Lead RI/FS 14
Section III. Planning and Reporting Requirements 15
A. Planning Requirements 15
Contractor Support 15
B. Reporting Requirements 15
RI/FS Negoliations/Settlement-i
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Section IV. Potential Problems/Resolutions 18
A. Stipulated Penalties 18
B. Past Costs 18
C. RI/FS Oversight Costs/Limits 18
D. Removals Required During RI/FS 18
E. Additional Work 18
Section V. References 20
Guidance 20
Manuals 20
Contacts 20
Section VI. Activities Checklist 21
Appendix
Remedy Selection and Negotiation Plan.
.A1
U-RJ/FS Negotiations/Settlement
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Chapter V
RI/FS Negotiations/Settlement
Section I.
Introduction
Description of Activity
This chapter discusses the process of negotiating for PRP conduct of the RI/FS and
focuses on the RPM's role in the process. EPA policy is to encourage PRPs to perform the
RI/FS under EPA oversight, when EPA determines that the PRPs are qualified to do the
work and will carry out the activities in accordance with CERCLA requirements and EPA
guidance.
EPA prepares for RI/FS negotiations from the time the listing site inspection is undertaken
or, in terms of SACM, from the time the Regional Decision Team decides to begin the
PRP search. EPA performs a PRP search, issues General Notice Letters (GNL), and may
meet with PRPs prior to beginning RI/FS negotiations. EPA also scopes the project prior
to initiating RI/FS settlement discussions. Formal negotiations begin when EPA issues the
Special Notice Letter (SNL), continue if there is a Good Faith Offer (GFO), and conclude
with the signing/issuance of an Administrative Order or Consent Decree, or referral for
litigation or the obligation of Fund monies.
Statutory Authority Although section 106 Administrative Orders may be issued, EPA usually relies on sections
104 and 122 of CERCLA to enter into agreements with PRPs to allow them to conduct all
or part of RI/FS activities. The settlement procedures in section 122 of CERCLA are
utilized when the Agency determines that the PRPs will conduct the RI/FS properly and
promptly. Authority for RI/FS administrative settlements has been fully delegated to the
Regions.
Overview of the
Negotiation Process
The RI/FS negotiation process begins informally as soon as PRPs are given general notice.
After initial identification of PRPs, EPA issues a general notice letter to advise the PRPs
of their potential liability. The general notice letter is the mechanism by which parties are
identified as PRPs and notified about the possible use of the CERCLA section 122(e)
special notice procedures and the subsequent moratorium and "formal" negotiation period.
Following general notice, EPA continues to develop the PRP search. After EPA has
received responses to information requests and has assembled information regarding waste
types and volumes, EPA provides the information to PRPs and encourages them to
organize as a group and form a steering committee. The organization of PRPs is an
important element in achieving settlements. In addition, EPA, working with contractor
support, scopes the focus of the RI/FS. The RPM should coordinate with the State as
necessary on the scope of the RI/FS and any Administrative Order.
EPA may issue a special notice letter regarding the RI/FS. Issuance of the special notice
provides a period of negotiation in situations where EPA determines that such a period
would facilitate an agreement with PRPs and expedite response actions. The special
notice letter is usually accompanied by a draft Administrative Order on Consent (AOC)
and RI/FS Statement of Work (SOW). RI/FS negotiations that result in settlement are
concluded with the signing of an Administrative Order on Consent (or entry of a Consent
Decree, if the case has been filed in court) which incorporates a SOW.
RI/FS NegotlationslSettlement-l
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Eddy DC MinimiS *n me Past> settlement tools such as de minimis generally were not used early in the
pipeline. In June 1992, however, the Agency published guidance on the use of "early de
minimis." The guidance identifies the methodology whereby Regions may provide PRPs
who are minor contributors of hazardous substances at a CERCLA site the opportunity to
resolve their CERCLA liability as completely as possible early in the response process
(i.e., prior to the signature of the ROD), without the need for extensive negotiation.
Entry into early de minimis settlements lowers transaction costs for de minimis parties and
can increase case management efficiency at multi-generator sites. To consider an early de
minimis settlement, Regions should compile waste contribution information for individual
PRPs as soon as it is available and identify response costs for settlement purposes. For
more information on waste contribution information, see Chapter IV, PRP Search, Notifi-
cation, and Information Exchange. For further information on early de minimis settle-
ments, see OSWER Directive 9834.7-1C, "Methodology for Early De Minimis Waste
Contributor Settlements Under CERCLA Section 122(g) (1) (A)" (June 1992).
The RI/FS negotiation process is summarized in Exhibit V-l.
Roles and This section describes the roles and responsibilities for the RPMs, assistant Regional
counsel, and representatives from OWPE, OE, and DOJ. The primary activities for each
phase of the negotiation process are summarized below. The primary responsibilities for
RPMs and ORC are detailed in Exhibit V-2.
RPM Responsibilities ^ie RPM plays a central role throughout the RI/FS negotiation process and has primary
responsibility for technical aspects of the case.
The RPM's role is to educate the PRPs on EPA's negotiation position as well as to provide
pertinent PRP and site information. The RPM also may play a central role in assisting the
PRPs to organize into a steering committee and should encourage the formation of a PRP
steering committee in nearly all cases. The RPM, in conjunction with the assistant Re-
gional counsel, should set up a correspondence file to track all communication with PRPs.
Some of this correspondence subsequently will be entered into the Administrative Record
for selection of response. The RPM's role in the timing of special notice letters and the
ensuing formal negotiation period is discussed in detail later in this chapter. The RPM also
participates in developing the case referral packages for section 106 and section 107
litigation cases. The RPM works jointly with the attorney to develop the technical infor-
mation in support of a referral package for section 106 and section 107 litigation cases.
Similarly, the RPM and the attorney work jointly to develop the Agency's negotiation
strategy prior to negotiations with the PRPs and, as needed, to coordinate the negotiation
strategy document with the settlement decision committee.
In some regions, an Enforcement Specialist assists the negotiation team by helping to
prepare general notice and special notice letters, cost packages and documentation, and by
participating in negotiations.
ORC Responsibilities ORC, in partnership with the RPM, also plays a central role in all phases of the RI/FS
negotiations. The assistant Regional counsel's primary role is to provide legal advice
during the negotiation process to ensure that the process complies with CERCLA.
OWPE Responsibilities OWPE is responsible for ensuring national consistency for negotiated settlements and
consistency with national policy. OWPE representatives usually are not involved in RI/FS
negotiations but may participate on any negotiations team where nationally significant
issues are anticipated. OWPE assures necessary coordination with OE.
2-RI/FS Negotiations/Settlement
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Exhibit V-1
RI/FS Negotiation Process
Listing Site
Inspection
PRP Search
Information
Exchange
60-day Formal
Negotiation
Period
Decision to Start RI/FS
(Outyear Planning)
Initiate Intergovernmental Review
Form Case Team
Develop Negotiation Plan
(Include any past costs)
Review PRP Search and Identity
Needed Follow-up
JL
Issue General Notice
JL
Work with Steering Committee
JL
Conduct Additional
Follow-up PRP Search
JL
Notify Trustees
Conduct Preliminary Scope of RI/FS
_L
Develop AO Package with SOW
Initiate Fund-financed
RI/FS
Initiate Section 106 UAO
or Litigation
-------
Exhibit V-2
Roles and Responsibilities
RPM
ORC
NEGOTIATIONS PLANNING
NEGOTIATIONS PLANNING
• Review strength of evidence of PRP liability
Coordinate information exchange with the PRPs,
including §104(e) letters, and provide the PRPs with
information regarding other PRPs (in conjunction with
assistant Regional counsel)
Coordinate with civil investigator regarding PRP
search activities
Assemble cost documentation for any past removals
Draft initial Administrative Order
Ensure PRP search review and follow up by civil
investigator and ORC
Notify DOJ of the negotiations if past costs are
involved
Send GNL
Coordinate Site Scoping Activities
Coordinate with State
INFORMAL AND FORMAL NEGOTIATIONS
• Review the SNL
Conduct negotiations as the lead legal
representative
INFORMAL AND FORMAL NEGOTIATIONS
• Provide information to PRPs
• Send SNLs
Redraft the Administrative Order as the result of
negotiations
Coordinate with the State legal representative
Conduct negotiations as lead technical representative
on the case team
Maintain coordination between appropriate
Headquarters and State offices
Request extensions for negotiations from
Headquarters
Obligate funds from the Trust Fund if appropriate
-------
OE Responsibilities OE is responsible for ensuring that negotiated settlements are consistent across the Re-
gions with national policy for legal matters. OE attorneys have expertise in the legal
implications of RI/FS settlements. OE attorneys usually are not involved in RI/FS nego-
tiations but may participate in negotiations where complex or nationally significant issues
are anticipated. OE assists Regional counsel in prereferral matters, reviews referrals sent
to DOJ, and also reviews Consent Decrees resulting from settlements.
DOJ Responsibilities DOJ's representative from the Environment and Natural Resources Division's Environ-
mental Enforcement Section is EPA's attorney for litigation of Superfund cases. DOJ
usually is not involved in RI/FS negotiations because these are resolved by Administrative
Orders rather than Consent Decrees. DOJ is involved in cases involving a compromise of
past costs in a RI/FS order in accordance with section 122(h)(l) of CERCLA.
If a site is complex, with many PRPs and much paperwork, RPMs should consider con-
sulting with DOJ's Litigation Support Group. This group is available for EPA to consult
with regarding information management services that are available. Contacting the
litigation support group early in the process can save time and energy later when preparing
for litigation. For further information, call the Litigation Support Group at 202-616-3354.
RI/FS Negotiations/Selllement-3
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Section II. Procedures and Interactions
This section discusses the procedures for negotiating PRP involvement in the RI/FS and
focuses on the RPM's role in the negotiation process. Certain elements of this process are
similar to elements of the RD/RA negotiation process, which is discussed in Chapter VIII,
RD/RA Negotiations/Settlement.
A. Decision to Start
the RI/FS
The decision to initiate RI/FS activities is made in the course of preparing the annual
SCAP. The SCAP process is discussed in Chapter XVII, SCAP/STARS Cycle. The RI/FS
start, as planned in the SCAP, affects the schedule for negotiations with the PRPs.
A PRP search generally should commence at least one to two years before negotiations are
scheduled to begin except at sites without generators, where less time is necessary. Nego-
tiation planning usually is initiated six to nine months prior to the planned RI/FS start date
in SCAP. When planning an RI/FS start, RPMs should keep in mind that, in cases where
the special notice letter procedure is implemented and a good faith offer is received by
EPA within 60 days, RI/FS activity is unlikely to begin for at least 90 days after special
notice issuance. When negotiating SCAP/STARS targets, the RPM, Information Manage-
ment Coordinator (IMC), and other Regional personnel involved in SCAP negotiations
should consider the following factors in proposing an RI/FS start at a site:
* Budget - Will funds be available to initiate activity at the site on the planned date?
* Site classification - Is the site targeted as PRP-lead or Fund-lead?
* Length of time on SCAP - How long has the site been identified on the SCAP as an
NPL site?
* Environmental priority of the site - How great is the threat to human health and the
environment posed by the site?
* Status of the PRP search - Is the PRP search near completion? How great is the
possibility of identifying viable PRPs?
* PRP capabilities - Are PRPs qualified?
* Willingness of the PRPs to cooperate - What is the likelihood of settlement?
The decision to start an RI/FS involves the SCAP coordinator (or IMC), section chiefs, and
branch chiefs. The division director grants final approval on RI/FS start decisions.
B. Intergovernmental
Review
RPMs should initiate the intergovernmental review process during settlement negotiations,
so that the review process is underway in the event Fund monies are used for site response
activity. 40 CFR Part 29, "Intergovernmental Review of the Environmental Protection
Agency Programs and Activities," addresses intergovernmental review of Federal financial
assistance programs and directs Federal development activities as they relate to the
Superfund program. This regulation applies to all remedial projects, including EPA-lead
RI/FS projects, initiated under the authority of CERCLA for which EPA or the State
designated agency is taking the lead. Responsible parties, however, are not subject to the
regulation and their activities accordingly are not subject to the notification procedures
outlined in the regulation.
Reference
OSWER Directive 9375.1-4-d, "State Participation in the Superfund Program," Appendix
D, "Procedures for Implementing Intergovernmental Review for the Superfund Program"
(June 2,1988).
4-RIlFS Negotiations/Settlement
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C. Formation of the
Case Team
Primary responsibility for developing settlements rests with the case team, or negotiation
team. The negotiation team usually consists of the RPM and the assistant Regional
counsel. Additionally, the civil investigator works closely with the case team and manages
or supports the PRP search. The primary responsibilities of the case team follow.
PRP Search
* Ensure that the PRP search is complete, including adequate information for special
notice and evidence on PRPs
* Oversee continued investigations as necessary to gather further information on PRPs
General Notice and Information Exchange
* Ensure that PRPs are given general notice
* Ensure early information exchange with PRPs
Special Notice and Negotiation
* Develop and transmit draft settlement documents to PRPs, including technical scopes
of work, Administrative orders or Consent Decrees, in advance of negotiations
• Conduct negotiations and maintain deadlines
The case team also assumes a general coordinating role in facilitating a site's progress
through the enforcement process.
As part of their general coordinating role in negotiations, the case team should develop a
negotiation plan. The negotiation plan documents EPA's approach to productive negotia-
tions with PRPs; functions as a checklist of steps to be taken, including individual assign-
ment of responsibilities; guides EPA's negotiation preparation process; resolves antici-
pated issues; and sets the bottom line for the negotiations. Negotiations where EPA is
fully prepared and sets schedules and deadlines are much more likely to result in a signed
Administrative Order on Consent. The RI/FS negotiation plan is also discussed in Chapter
III, Comprehensive Site Planning, and is included as an appendix to this chapter.
D.
Review PRP
Search
When planning for negotiations, the case team should review thoroughly the PRP search
report to ensure that the universe of PRPs has been identified and that PRP waste-in and
liability information is complete enough to support the issuance of special notice letters.
The information in the PRP search report also should be sufficient to support the prepara-
tion of volumetric rankings included in the special notice. Necessary follow-up work
should be identified.
Information requests should be issued as early in the PRP search/negotiation process as
practicable. Information requests may be issued as a separate letter during the PRP search
process or as part of the general notice letter. Whenever possible, information request
letters should be issued independently and well in advance of the general notice letter.
Issuance of the information request letter prior to the general notice letter is especially
encouraged in situations where information from PRPs is necessary to determine whether
the issuance of a general notice letter is appropriate. Issuance of the GNL marks the point
at which EPA determines that a party is a PRP.
Information request letters are discussed at length in Chapter IV, PRP Search, Notification,
and Information Exchange.
E.
Issue General
Notice
The general notice letter informs PRPs of their potential liability, may begin or continue
the process of information exchange, and initiates the process of "informal" negotiations.
"Informal negotiations" refer to any discussions that are not conducted as part of the
negotiation moratorium triggered by issuance of special notice under section 122 (e) of
CERCLA.
RI/FS Negotiations/Settlement-5
-------
General notice letters should be issued at all sites that are proposed for or listed on the
NPL. However, it may not be appropriate to issue the general notice at sites where a notice
pursuant to previous guidance was issued before the reauthorization of CERCLA or where
the Region is ready to issue special notice at the site. These exceptions are important for
minimizing any possible disruption to ongoing activities.
The general notice letter identifies a party as a PRP and informs the recipient of its poten-
tial liability for all response activities and costs incurred by the government. General
notice letters should be sent to all parties for whom there is sufficient evidence to make a
preliminary determination of potential liability under section 107 of CERCLA. The RPM,
in consultation with ORC, should issue the general notice to PRPs as soon as possible.
OWPE has developed a model general notice letter. The procedure for issuing general
notice letters and the contents of the letter are discussed in detail in Chapter IV, PRP
Search, Notification and Information Exchange.
References
OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA" Appendix A, "PRP Participation" (October 1988).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations and
Information Exchange" (October 19,1987).
OSWER Directive 9834.10A, "Model Notice Letters" (February 1989).
OSWER Directive 9835.12-Ola, "Revised Policy on Discretionary Information Release
Under CERCLA" (March 1993).
OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving Munici-
palities or Municipal Wastes" (December 6,1989).
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1987).
SteerinfJ
. ~
UOmmitt66S and
Information EXChanaG
F SteerinfJ ^e case team snou^ encourage PRPs to form a steering committee early uvthe negotia-
tion process. This encouragement, however, should not suggest that EPA will negotiate
on]y w,m one steering committee. Steering committees greatly facilitate negotiations in
multi-party cases because the government may negotiate with one committee that repre-
sents the PRPs, and PRPs may resolve differences among themselves through the commit-
tee. The case team should encourage PRPs to form a steering committee at the time of the
general notice letter or at the first meeting between the government and PRPs. If neces-
sary, the case team should educate the steering committee in the Superfund enforcement
process, including providing the committee with pertinent information such as PRP
identification, waste-in lists, relevant policies, and technical data. As new PRPs are
identified, the case team should refer them to the steering committee.
Establishment of PRP steering committees provides several logistical and tactical advan-
tages to the negotiation process, including:
•* Providing the government with a central point for dissemination of information and
government decisions
* Providing a single point of issuance of PRP proposals and decisions
* Providing a forum in which PRPs may negotiate among themselves to determine
allocations among their own members
* Providing the circumstances for experienced PRPs to educate less-experienced PRPs.
Although steering committees may be advantageous to reaching settlement, the case team
should be aware of possible disadvantages of dealing with steering committees. Some
PRPs may not trust the recommendations of the committee if they do not believe it fairly
represents their concerns, and these PRPs may elect not to settle. If the committee leader-
6-RI/FS Negotiations/Settlement
-------
ship is unfamiliar with CERCLA, or is internally fractious, the entire settlement can be
jeopardized. The case team needs to be sensitive to these concerns in determining how it
will relate to a particular steering committee.
G.
FollOW Up OR Before initiating formal negotiations with PRPs, the case team should review the PRP
PRP Search searc^ report and correspondence from the PRP steering committee for any information
that may lead to the identification of additional PRPs. Any such leads should be pursued
and, in the event additional PRPs are identified, the new PRPs should be issued a general
notice, advised of the status of informal negotiations, and informed of the existence of a
PRP steering committee, if appropriate.
H. Natural Resource
Trustees
Natural Resource Trustees and their responsibilities are identified in Subpart G of the
NCP. EPA is not a trustee for natural resources under CERCLA. The trustees most
frequently involved with CERCLA activities are the Department of the Interior and the
Department of Commerce, which has delegated its responsibilities to the National Oceanic
and Atmospheric Administration (NOAA). Section 104 (b)(2) of CERCLA requires that
the trustees be notified of releases of hazardous substances that have the potential of
causing damages to natural resources, and that EPA coordinate the assessments, investiga-
tions, and planning with the trustees. Section 122(j)(l) requires that the trustees be
notified of settlement negotiations with the potentially responsible parties. CERCLA does
not give EPA the authority to negotiate on behalf of the trustees. The RPM and the
assigned ORC attorney, should ensure that coordination with the trustees is on-going
throughout the remedial process. The coordination process established in the OSWER
Directive 9295.0-02, "Memorandum of Understanding (MOU) between EPA and NOAA,"
(April 1992), should be followed when interacting with that Agency. Additional MOUs
are being negotiated with the other Federal trustees. Until these MOUs are completed, the
coordination sequence contained in the NOAA MOU should be used as the model for
coordination with all of the natural resource trustees.
I. Preliminary
Scoping of the RI/FS
Preliminary scoping is the initial planning phase of site remediation and should be initiated
by the RPM with contractor support at least several months prior to the beginning of
negotiations. By conducting preliminary scoping activities before negotiations with PRPs
begin, EPA enters negotiations with a better idea of the nature and extent of the technical
work that needs to be done at the site. When EPA has scoped the technical work and site
management requirements at a site, negotiations with PRPs are more focused and the PRP-
conducted work is likely to be of higher quality than when adequate scoping activity has
not occurred.
The ability to develop a comprehensive site management strategy and site objectives is
closely tied to the amount and quality of information available at the time. It should be
recognized that the objectives and strategy may not be fully developed at this stage. As
new information is acquired or new decisions are made, data requirements are reevaluated
and, if appropriate, the site management strategy or objectives are modified.
The site objectives should specify the purpose of any activities to be conducted at the site
including any interim actions that may be necessary, as well as the preliminary objectives
of possible remedial actions (e.g., the preliminary cleanup goals). These objectives should
identify preliminary contaminants and media of concern, the exposure pathways and
receptors, and an acceptable contaminant level or range of levels for each exposure route.
The site objectives are developed and based on existing site information; contaminant-
specific ARARs, when available; and risk-related factors.
The site management strategy is developed once the objectives have been established and
identifies the study boundary areas and the optimal sequence of site activities, including
whether the site may best be remedied as separate operable units. The general manage-
RIIFS Negotiations/Settlement-?
-------
ment approach should include: actual and potential site problems, any interim actions that
are necessary to mitigate potential threats or prevent further environmental degradation,
and the optimal sequence of activities to be conducted at the site. Also included in the site
management strategy should be the decision as to whether the RI will serve as a continua-
tion of the PRP search. This would be appropriate at sites at which all of the sources of
contamination are not yet well defined.
PRP ISSUGS Determination of site boundaries may be a particularly significant issue for PRPs. The
case team must carefully evaluate preliminary site information to determine if RI activities
should occur in a more extended or restricted geographic area. This decision may be
particularly difficult in situations that involve area-wide ground-water contamination or
commingled ground-water contamination plumes, where contamination sources are
identified off-site and indicate that additional PRPs may be identifiable. Scoping activities
may thus uncover information that is valuable to following up PRP search efforts or
identifying additional PRPs.
Site access also may be an issue significant to PRPs in negotiations. The case team should
be aware of any potential site access issues when preparing for negotiations.
References
OSWER Dir. 9355.3-01, "Guidance for Conducting Remedial Investigations and Feasibil-
ity Studies under CERCLA" (October 1988).
OSWER Dir. 9355.3-01FS1, "Getting Ready - Scoping the RI/FS" (November 1989).
J. RI/FS Statement
of Work (SOW)
The RI/FS SOW describes, in a comprehensive manner, the RI/FS activities to be per-
formed as anticipated prior to the onset of the project. The SOW establishes the broad
objectives, general activities to be undertaken, and deliverables to be submitted by PRPs
in the RI/FS. The SOW should be prepared before issuance of special notice and included
in the notice letter when issued to the PRPs. OSWER has prepared a model SOW for
PRP-lead RI/FS activities (June 2,1989). The major components of a SOW, as identified
in the model, are set forth in Exhibit V-3. The model SOW is consistent with the revised
RI/FS guidance (October 1988) and NCP. However, note that in June 1990, EPA decided
that PRPs may not conduct risk assessments. See OSWER Directive 9835.15, "Perfor-
mance of Risk Assessments in RI/FSs Conducted by PRPs" (August 28,1990).
The draft site-specific SOW may be prepared by the RPM and other Regional personnel,
with contractor help on scoping. Some circumstances may warrant EPA preparation of a
work plan before or during negotiations. For a particular site, the RPM should add scoping
information to the model SOW and should tailor the model, as necessary, to the site and
PRPs. In limited circumstances, the PRP or EPA may prepare the SOW after the order is
signed, but this approach may lead to major implementation problems and is not preferred.
The Work Plan describes the methodology for accomplishing the objectives set forth in the
SOW. Work Plans usually are prepared by the PRPs as the first deliverable specified
under the terms of the RI/FS settlement.
References
OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA," Appendix A, "PRP Participation" (October 1988).
OSWER Directive 9835.8, "Model Statement of Work for PRP-Conducted Remedial
Investigations and Feasibility Studies" (June 2,1989).
8-RI/FS Negotiations/Settlement
-------
Exhibit V-3(1)
Major Components of the SOW
TASK1: SCOPING
ACTIVITIES:
• Collect and Analyze Existing Site Data
• Document Need for Additional Data
• Project Planning, Including Refinement of Remedial
Action Objectives, Documentation of Need for
Treatability Studies and Preliminary Identification
of Potential ARARs
DELIVERABLES:
• RI/FS Work Plan
• Sampling and Analysis Plan (SAP)
• Site Health and Safety Plan
TASK 2: COMMUNITY RELATIONS
TASK 3: SITE CHARACTERIZATION
ACTIVITIES:
• Field Investigation, Including Implementing Field
Support Activities, Defining Site Physical
Characteristics, Sources of Contamination and
Nature and Extent of Contamination
• Data Analyses
• Data Management Procedures
DELIVERABLES:
• Technical Memorandum on Modeling of Site
Characteristics (Where Appropriate)
• Preliminary Site Characterization Summary
Draft Remedial Investigation (Rl) Report
TASK 4: BASELINE RISK ASSESSMENT (To be prepared by EPA)
ACTIVITIES:
• Contaminant Identification and Documentation
• Exposure Assessment and Documentation
• Toxicity Assessment and Documentation
• Risk Characterization
• Environmental Evaluation
-------
Exhibit V-3(2)
Major Components of the SOW
TASK 5: TREATABILITY STUDIES
ACTIVITIES:
• Determine Candidate Technologies and the Need for Testing
• Conduct Treatability Testing
DELIVERABLES:
Technical Memorandum Identifying Candidate Technologies
Treatability Testing Statement of Work
Treatability Testing Work Plan (or Amendment to Original)
Treatability Study SAP (or Amendment to Original)
Treatability Study Site Health and Safety Plan (or Amendment
to Original)
Treatability Study Evaluation Report
TASK 6: DEVELOPMENT AND SCREENING OF ALTERNATIVES
ACTIVITIES:
Refine and Document Remedial Action Objectives
Develop General Response Actions
Identify Volumes or Areas of Media
Identify, Screen and Document Remedial Technologies
Assemble and Document Alternatives
Refine Alternatives
Conduct and Document Screening Evaluation of Each Alternative
DELIVERABLES:
Technical Memorandum Documenting Revised Remedial Action Objectives
Technical Memorandum on Remedial Technologies, Alternatives and Screening
TASK 7: DETAILED ANALYSIS OF ALTERNATIVES
ACTIVITIES:
• Apply Nine Criteria and Document Analysis
• Compare Alternatives Against Each Other and Document
Comparison of Alternatives
DELIVERABLES:
• Draft Feasibility Study (FS) Report
TASKS: OVERSIGHT ACTIVITIES
-------
Draft The terms ^ conditions governing the RI/FS activities of PRPs should be specified in an
AHminictrfltivo Orrior Administrative Order on Consent (AOC). AOCs are the preferred settlement document for
AQmimSirailve Uruer ^^s activitjes 5^^ concurrence on AOCs takes place quickly. CERCLA authorizes
the use of AOCs for RI/FS settlements under sections 104 and 122 and does not contain
the requirement in section 106 of CERCLA that EPA must make a finding of imminent
and substantial endangerment. hi limited circumstances, EPA may compel a PRP to
perform a RI/FS by a Uunilateral Administrative Order.
The case team should prepare a draft Administrative Order before special notice is sent.
EPA has prepared a model Administrative Order, OSWER Directive 9835.3-1 A (January
30,1990). As applied, this version of the model order should be modified to provide that
EPA performs the risk assessments. Moreover, most Regions have developed their own
model orders.
In addition to settlement terms, the AOC must incorporate, by reference, the SOW. The
AOC also should contain language that requires PRP conducted RI/FS activities to meet
appropriate quality standards. The draft AOC thus provides a starting point for negotia-
tions and should be prepared in time to include it in the special notice to the PRPs.
In addition to the SOW, which outlines the activities to be performed, the AOC also
generally contains schedules, EPA or State oversight roles and responsibilities, and
enforcement options that may be exercised in the event of noncompliance, such as stipu-
lated penalties. The AOC also typically includes the following elements as agreed upon
by EPA and the PRPs:
* Introduction - describes parties involved, response action covered, and identifies the
site
+ Jurisdiction - describes EPA's authority to enter into the Order
* Parties bound - describes to whom the Agreement applies and who it binds
* Statement of Purpose - describes the purpose of the Order in terms of mutual
objectives in preparing a RI/FS
+ Findings of fact - provides an outline of facts upon which the Agreement is based
• Conclusions of Law and Determinations - specifies that the site is a "facility";
wastes are a "hazardous substance"; and their presence constitutes a release
+ Notice - verifies that the State has been notified of pending site activities
* Work to be Performed - describes, generally by reference to the attached SOW, the
activities to be conducted pursuant to the AOC and provides a schedule for completion
of activities and a schedule of deliverables
• Modification of the Work Plan - specifies that the PRPs are committed to perform
any additional work or subsequent modifications which are not explicitly stated in the
work plan, if EPA determines that such work is necessary for a complete RI/FS
• Quality Assurance - specifies that technical work at a site must comply with the
requirements of CERCLA, the NCP, Agency guidance, and QA procedures
• Final RI/FS, Proposed Plan, ROD, Public Comment and Administrative Record
Requirements - provides that EPA releases the RI/FS, prepares the ROD, and that all
information upon which the selection of remedy may be based be submitted to EPA
for public comment in fulfillment of the Administrative Record requirements of
section 113 of CERCLA
• Progress Reports and Meetings - specifies the type and frequency of reporting that
PRPs must provide to EPA
• Sampling, Access and Data Availability/Admissibility - stipulates that PRPs shall
allow access to the site by EPA, authorized personnel, the State, and third party
oversight officials. The clause in the settlement also should state what constitutes the
PRPs' best efforts to gain access to the site or necessary off-site locations when the
RI/FS Negotiations/Setllement-9
-------
property is not owned by the PRPs. This claim should also provide for access to the
site by EPA contractors and specify actions EPA may take to gain access. In
developing this clause in the settlement, the case team should consider access needs
and the cooperativeness of the parties owning property to which access may be
required. This section also stipulates that the PRP shall submit to EPA in the
subsequent monthly progress report all results of sampling, modeling, tests, or other
data. EPA may take split or duplicative samples as necessary.
* Designated Project Coordinators • specifies that EPA, the State, and PRPs shall each
designate a project coordinator. The EPA coordinator may be the RPM
• Other Applicable Laws - states that PRPs shall comply with all laws that are
applicable when performing the RI/FS
* Record Preservation - specifies that all records must be maintained by both parties
for a minimum of ten years after commencement of the remedial action, if any,
followed by a provision requiring PRPs to offer the site records to EPA before disposal.
* Dispute Resolution - specifies steps to be taken to resolve disagreements between the
parties regarding the work to be performed
* Delay in Performance/Stipulated Penalties • provides for stipulated penalties for
noncompliance with the terms of the order, and sets forth penalty amounts. This clause
in the settlement may also address the applicability of statutory penalties
* Force Majeure - stipulates that the PRPs shall notify EPA of any event that occurs that
may delay or prevent work and that is due to an unexpected or uncontrollable event that
could not be avoided by exercise of due care
• Reimbursement of Past Costs - provides for reimbursement for past response costs
incurred by the government
• Reimbursement of Response and Oversight Costs - provides for reimbursement of
costs of the government in connection with the RI/FS, including review and oversight
• Reservations of Rights and Reimbursement of other Costs - provides EPA with the
right to enforce past costs and cost reimbursement requirements
• Disclaimer - states that the PRPs' signature on the Consent Order is not considered an
admission of liability
• Other Claims - states that any release from liability applies only to matters covered
hi the AOC and to no other claim or liability, except as provided in the reservation of
rights section
• Financial Assurance, Insurance and Indemnification - specifies that PRPs should
have adequate financial resources/insurance coverage to cover liabilities resulting
from their RI/FS activities
• Effective Date and Subsequent Modification - stipulates that the Consent Order is
effective on the date it is signed by EPA and that it may be amended by mutual
agreement of EPA and the PRPs
• Termination and Satisfaction • states that the Consent Order shall terminate when
the PRP demonstrates in writing that all work has been performed and EPA approves.
RPMs must coordinate closely with ORC in preparing the draft AOC. Region I has
developed a step-by-step approach to developing Administrative Orders, the major points
of which are summarized in Exhibit V-4. RPMs should note that the procedures in Exhibit
V-4 are specific to Region I. However, they are included in this handbook as a guide for
Regions without an established AO development process and as a source of comparison
for Regions with different procedures.
10-RllFS Negotiations/Settlement
-------
Issue Special
Notice Letter
References
OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations and
Feasibility Studies under CERCLA," Appendix A, "PRP Participation" (October 1988).
OSWER Directive 9835.3-1 A, "Model Administrative Order on Consent for RI/FS"
(January 3,1990).
OSWER Directive 9835.15, "Performance of Risk Assessments in RI/FSs Conducted by
PRPs" (August 28,1990).
The Special Notice Letter (SNL) procedure authorized by section 122(e) of CERCLA
initiates the formal settlement process between EPA and the PRPs. The special notice
procedure triggers a moratorium on EPA's conduct of the RI/FS and remedial action.
However, certain investigatory and planning activities may occur during the negotiation
moratorium, including any "additional studies" as set forth in section 104(b) of CERCLA.
The purpose of the moratorium is to provide for a formal period of negotiation between
EPA and PRPs where the PRPs will be encouraged to conduct response activities. The
special notice procedure should be utilized whenever it would facilitate agreement. If
EPA does not issue a special notice, the Region must provide PRPs with an explanation.
The RI/FS negotiation moratorium may last 90 days if EPA receives a Good Faith Offer
(GFO) for conducting the work from PRPs within the first 60 days of the moratorium. The
negotiation moratorium concludes after 60 days if the PRPs do not provide EPA with a
GFO.
The special notice letter should specify the calendar date through which the moratorium
runs. In instances where there is more than one PRP and PRPs are likely to receive the
special notice on different days, the date the moratorium begins should be approximately
seven days from the date the letters are mailed to the PRPs. In either case, the special
notice must make clear when the negotiation moratorium ends.
In cases where EPA decides it is inappropriate to issue the special notice, the Region must
notify PRPs in writing of the decision. Section 122(a) of CERCLA requires that the notice
indicate the reasons why the Region determined that issuing the special notice and entering
into formal negotiations was not appropriate. OWPE has prepared a model notice of
decision not to use special notice procedures. This model should be used by the Regions
when notifying PRPs that the special notice procedure will not be used. The notice or
justification for not issuing the special notice should be provided to all PRPs that have
been identified to date as well as to the Regional Administrative Record coordinator for
placement in the Administrative Record, hi any event, a list of PRPs should be provided
to the community relations coordinator for inclusion on the mailing list.
In general, EPA policy is to issue special notice letters for RI/FS whenever possible.
There are several circumstances where EPA generally would not use the special notice
procedure:
* Past dealings with the PRPs strongly indicate they are unlikely to negotiate a
settlement
* EPA believes the PRPs have not been negotiating in good faith
* No PRPs have been identified at the conclusion of the PRP search
* PRPs lack the resources to conduct response activities
+ Notice letters were issued prior to reauthorization of CERCLA and ongoing negotia-
tions would not benefit by issuance of a special notice.
The RPM also must notify the State of the negotiations and provide the State with the
opportunity to participate.
RI/FS Negotiations/Seltlement-l 1
-------
Timing Of Special Notice The special notice should be sent sufficiently in advance of obligations for the RI/FS so
that negotiations do not delay the initiation of the RI/FS by the Fund in the event the
negotiations do not result in PRP conduct of the RI/FS. At the latest, PRPs should receive
special notice 90 days prior to the scheduled date for initiating the RI/FS. The scheduled
date for initiating the RI/FS refers to the date the AOC will be signed or the date funds will
be obligated to commence response activities. The 90-day period allows an opportunity
for the PRPs to undertake the RI/FS while also providing a timeline for initiating Fund-
financed RI/FS activity if negotiations do not result in settlement.
M Good Faith OffGr
60-day moratorium may be extended to 90 days if the PRPs submit a GFO for
conducting RI/FS activity. The special notice should identify a GFO as a written proposal
that demonstrates the PRP's qualifications and willingness to undertake the RI/FS. A GFO
for the RI/FS should contain the following elements:
* A statement of the PRP's willingness to conduct the RI/FS that is consistent with
EPA's SOW or work plan and draft AOC and provides a sufficient basis for further
negotiations
* A paragraph-by-paragraph response to EPA's SOW or work plan and draft AOC,
including a response to any other attached documents
4 A demonstration of the PRP's technical capability to undertake the RI/FS, including
identification of the firm(s) that may actually conduct the work or a description of the
process they will use to select the firm(s)
* A demonstration of the PRP's capability to finance the RI/FS
* A statement of willingness by the PRPs to reimburse EPA for costs incurred in
relationship to the PRP's conduct of the RI/FS, including oversight
* The name, address, and phone number of the party or steering committee who will
represent the PRPs in negotiations.
If the GFO contains the above elements, and EPA determines that continuing negotiations
will be beneficial, the Region may approve a 30-day extension to the negotiation period.
Generally, the 30-day extension is utilized only when settlement is likely.
In some cases, it may be beneficial to extend negotiations beyond the 90-day moratorium
period. In exceptional circumstances, the Regional Administrator may approve an addi-
tional extension of no more than 30 days to the 90-day moratorium. Extensions are
granted only in very rare circumstances and for short duration where final agreement is
imminent. Requests for extensions to the formal negotiation period should be made in
writing by the case team to the Regional Administrator. This request may be prepared
initially by the RPM and should specify: the length of extension requested; status of
negotiations (issues resolved and those unresolved); justification for the extension; and
actions to be taken in the event negotiations are unsuccessful.
The Regional Administrator will approve or deny the extension to the negotiation period
based on the information presented in the request. If approved, the request then should be
forwarded to the Director, OWPE.
Notify DOJ Under section 122(h)(l) of CERCLA, the Agency may compromise and settle a claim
under section 107 of CERCLA for past and future response costs if the case has not been
referred to DOJ for further action. In cases where total response costs exceed $500,000
(excluding interest), claims may be compromised (i.e., settled for less than 100 percent)
only after approval by DOJ. EPA seldom settles future claims under section 107 of
CERCLA because future costs are often unknown and total costs often exceed $500,000.
DOJ may review the compromise of a claim pursuant to section 122(h)(l) of CERCLA,
where total response costs exceed $500,000 at the facility. DOJ is not required to review
an Administrative Order for PRP conduct of an RI/FS.
12-R1IFS Negotiations/Settlement
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N. Conditions for
PRP Conduct of RI/FS
EPA must evaluate PRP offers against certain criteria to determine whether the PRPs
possess the capabilities to perform the RI/FS properly and promptly. RPMs should
consider whether the following conditions for PRP conduct of the RI/FS are met:
Scope of Activities
PRPs must agree to follow the site-specific SOW, including reasonable modifications
acceptable to EPA, as the basis for conducting the RI/FS. EPA will reject any request for
modifications to the SOW that are not consistent with CERCLA, the NCP, and require-
ments set forth in Agency guidance.
Demonstrated Capabilities
PRPs must demonstrate to EPA that they possess, or are able to obtain, the technical
expertise necessary to perform all relevant activities identified in the SOW. PRPs also
must demonstrate that they possess the managerial expertise and have developed a man-
agement plan sufficient to ensure that the proposed activities will be properly controlled
and efficiently implemented. Additionally, PRPs must demonstrate that they possess the
financial capability to conduct and complete the RI/FS in a timely and effective manner.
Although it is always considered in negotiations, the PRP's demonstration of their techni-
cal, managerial, and financial capabilities may be the first deliverable under the settlement.
In addition to the PRP's technical and managerial capabilities, the Agency will have
considered the PRP's ability to objectively address certain issues in drafting the order.
Tasks which the Agency should pay special attention to and consider reserving for them-
selves include: determination of applicable or relevant and appropriate requirements and
the effectiveness of institutional controls. For all AOCs or CDs signed after June 21,
1990, EPA will prepare the baseline risk assessment for all enforcement-lead sites.
Assistance for PRP Activities
If PRPs propose to use consultants for conducting or assisting in the RI/FS, the PRPs
should specify the tasks to be conducted by the consultants and submit personnel and
corporate qualifications of the proposed firms to EPA for review. EPA must verify that
the PRPs' consultants have no conflict of interest with respect to the project.
0. Negotiations
Outcome-PRP-Lead
RI/FS
Negotiations that result in settlement are concluded by signature of an AOC or entry of a
Consent Decree (CD) committing the PRPs to conduct the work and reimburse the
Government's costs.
In cases where settlement issues require clarification, the Regional Administrator acts as
the primary decision-maker on CERCLA settlement issues. This responsibility is often
delegated to the Division Director. The case team should provide a written summary of
any settlement issues requiring a decision by the Regional Administrator. The Regional
Administrator holds full responsibility for resolving issues related to administrative
settlements for the RI/FS.
Once PRPs have signed the settlement document, the agreement must go through the
Regional concurrence chain and ultimately be signed by the Regional Administrator,
unless his/her authority has been redelegated. If the settlement document is a Consent
Decree, the case team also must coordinate with the Environmental Enforcement Section
in DOJ to finalize the settlement. In cases where a GFO is rejected based on the criteria
outlined in OSWER Directive 9335.3, "Guidance for Conducting Remedial Investigations
and Feasibility Studies under CERCLA," Appendix A, "PRP Participation" (October
1988), the case team must determine whether the PRPs are indeed negotiating in good
faith and then determine whether to continue negotiation efforts.
If negotiations do not lead to a signed AOC at the end of the formal negotiation period,
EPA may initiate Fund-lead RI/FS activities. However, initiation of Fund-financed
activity is possible only if provisions have been made for the activity in the SC AP. A
RI/FS Negotiations/Settlement-13
-------
p, NGQOtiStionS planned date for the initiation of Fund-lead activity may be viewed as a drop-dead settle-
OlltcnmP-Flind-l Pad ment ^ate wr PIy>s'mus Providing a° incentive for settlement.
Although it is preferable not to have uncooperative PRPs conducting the investigatory
work of the RI/FS, in limited circumstances section 106 Unilateral Administrative Orders
(UAOs) may be issued to achieve PRP conduct of RI/FS activities.
14-RIIFS Negotiations/Settlement
-------
Section III. Planning and Reporting Requirements
Planning
Requirements
This section discusses the planning and reporting requirements associated with the RI/FS
negotiation process.
Funds for RI/FS negotiations are made available to the Regions through the Case Budget.
The Case Budget process is discussed in greater detail in Chapter XVI, Case Budget/
Contracts, and Chapter XVII, SCAP/STARS Cycle. Funds allocated to RI/FS negotiations
are set forth in the current fiscal year SCAP manual.
The funds available for RI/FS negotiations cover the following activities:
* Scoping the RI/FS
* Development of the SOW
* Forward planning/records compilation
* Issuance of Special Notice
* Support for negotiations meetings
* Development and issuance of AOs.
This $50k allocation is not designed to support entire scoping activities and work plan
development of a Fund-financed RI/FS.
When planning in the SCAP for RI/FS activities, RPMs should consider the advantages
and disadvantages of targeting RI/FS activities as Fund or PRP-lead. If a Fund-lead RI/FS
is targeted at a site, OERR sets aside extramural dollars to perform the work. In situations
where money has already been appropriated for RI/FS activity at a site, EPA may be able
to negotiate more effectively with the PRPs, since the possibility exists that EPA may
choose to conduct the work immediately and sue for cost recovery later. PRPs generally
prefer settling before RI/FS work is completed to avoid being sued for cost recovery at a
later time. However, proper planning entails achieving a balance between Fund and PRP-
lead targeted RI/FSs.
Contractor Support
RPMs should anticipate the extent of contractor involvement in the issuance of the general
and special notice letters, development of the SOW, and evaluation of PRP engineering
qualifications. Additionally, RPMs should note that separate work assignments must be
initiated for RI/FS negotiation and oversight of PRP RI/FS. The initiation of separate
work assignments is necessary for tracking and cost recovery of oversight costs.
Section 104 of CERCLA requires EPA to use third party assistance in oversight of PRP-
lead RI/FS activities. Generally, this support is available through TES, ARCS, other
Federal agencies (such as the Corps of Engineers) or States. Oversight resources are made
available through the Case Budget process. At the time of settlement, the RPM should
plan for oversight and identify in-house and extramural support needs. Oversight planning
requirements are discussed in greater detail in Chapter VI, RI/FS Implementation. PRPs
are required to pay for EPA's costs in connection with the RI/FS, including oversight.
B.
Reporting
Requirements
RI/FS negotiations are discussions between EPA and the PRPs on their liability, willing-
ness, and ability to conduct the RI/FS. RI/FS negotiations are tracked by SCAP/STARS
through CERCLIS. Exhibit V-5 summarizes SCAP/STARS measures relevant to RI/FS
negotiations. RPMs are responsible for ensuring that accurate data are reported into
CERCLIS/WasteLAN. The RPMs should enter in the data or provide the information to
the IMC. If the Region does not plan to perform RI/FS negotiations at a site, negotiation
RI/FS Negotialions/Settlement-15
-------
dates should not be placed in WasteLAN. The start of RI/FS negotiations should be
planned site specifically. This is a SCAP reporting measure.
Exhibit V-5
SCAP/STARS Measures for RI/FS Negotiations
Activity
RI/FS Negotiation Start
RI/FS Negotiation Completion
STARS
Reporting
SCAP
Plan/Report
X
X
Quarterly
X
X
Annual
X
X
Definitions for:
RI/FS Negotiation Start: RI/FS negotiations start when the first Special Notice
Letter (SNL) is signed, or a waiver of SNL is signed.
RI/FS Negotiation Completion: The RI/FS negotiation ends when:
* A Unilateral Administrative Order (UAO) for RI/FS is signed by the Regional
Administrator (a UAO is not the preferred enforcement tool for RI/FS and
should be used only under unique circumstances)
* An Administrative Order on Consent (AOC) for RI/FS is signed by the
Regional Administrator
* A signed Consent Decree (CD) for RI/FS is referred by the Region to HQ or
DOJ
* The Region decides to proceed with a fund-financed RI/FS, terminates nego-
tiations, and obligates funds for the RI/FS.
The negotiations conclusion date is the date the Regional Administrator signs the order, the
date on the transmittal letter referring the CD, or the funds for RI/FS are obligated.
The RI/FS negotiation outcomes are also tracked by SCAP/STARS. A matrix of SCAP/
STARS measures relevant to RI/FS Negotiation Outcomes is presented as Exhibit V-6.
Exhibit V-6
SCAP/STARS Measures for RI/FS Negotiation Outcomes
Activity
AC (AOC)
UA (UAO)
CD
State Order/CD
STARS
Reporting
SCAP
Plan/Report
X
X
X
X
Quarterly
X
X
X
X
Annual
X
X
X
X
16-RI/FS Negotiations/Settlement
-------
Definitions for RI/FS Negotiation Outcomes:
AOC & UAO: Administrative Orders (AOC and UAO) are an enforcement tool to
compel the PRPs to assume responsibility for removal actions and RI/FS projects.
Report section 104/106/122 AOs (AOC and UAO) issued by EPA for PRPs to
conduct removal actions and/or RI/FSs. Credit for the order is based on the date it
is signed by the Regional Administrator as recorded in WasteLAN. Projections for
AOs for RI/FS are made site specifically.
CD: Judicial agreement between EPA and the PRPs compelling the PRPs to
conduct the RI/FS. Credit is given based on the date the Regional Administrator
signs the transmittal memo to HQ or DOJ. This is the CD start date as recorded in
WasteLAN.
State Order/CD: Agreement between the State and the PRPs compelling the PRPs
to conduct the RI/FS. Credit is given when the last State Official signs the agree-
ment. This is the completion date as recorded in WasteLAN.
For specific coding requirements into WasteLAN, see the Enforcement Data Quality
Manual Chapter I; RI/FS Negotiations (FN), Administrative Order On Consent (AC),
Unilateral Administrative Order (UA), Consent Decree (CD), State Decree (SD), and State
Order (SO), or see your IMC.
RI/FS Negotiations/Settlement-17
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Section IV. Potential Problems/Resolutions
This section discusses specific issues the case team may confront during the course of RI/
FS negotiations, and suggests methods for resolving these issues.
A.
Stipulated
Penalties
As an incentive for PRPs to properly conduct the RI/FS and correct any deficiencies
discovered during the conduct of the agreement, EPA should include stipulated penalties
in the terms of the agreement. Penalties should begin to accrue on the first day of the
deficiency and continue to be assessed until the deficiency is corrected. The type of
violation (i.e., reporting requirements vs. implementation of construction requirements) as
well as the amounts per violation per day, should be specified as stipulated penalties in the
agreement. Also section 122 allows EPA to seek or impose civil penalties for violations of
Administrative Orders.
B.
Past COStS In many cases, EPA has incurred significant costs at a site prior to settling with PRPs for
performance or finance of the RI/FS. Such incurred costs may include the conduct of one
or more removal actions. EPA must decide whether to pursue recovery of these costs as
part of the RI/FS settlement or delay attempting to recover pre-RI/FS costs until RD/RA
negotiations. The case team should determine past costs prior to the special notice letter
and include them in the letter as a demand, hi negotiations, the case team should consider
the numbers of settlors/non-settlors, the likely statute of limitations for the removal, the
possible implications of cost recovery litigation on remedial activities, and possibilities of
reallocation in RD/RA negotiations.
C. RI/FS Oversight
Costs/Limits
The cost of EPA or State oversight generally is a major issue during RI/FS negotiations.
PRPs typically prefer a settlement in which their financial responsibility for oversight
costs is limited to a fixed dollar amount. EPA generally prefers no limit on the recover-
able amount of oversight expenses.
The amount of EPA/State oversight also is often an issue during RI/FS negotiations. PRPs
may prefer a settlement in which the extent of EPA's presence in the field during PRP
conduct of RI/FS activities is predetermined. EPA policy, however, is to not limit the
frequency or extent of oversight activities, because conditions may develop that were
unanticipated at the time of settlement and require increased attention by the oversight
agency. Oversight includes EPA costs, including contractors.
D. Removals Required
Fli irinn PI/FQ
9 nl/rO
During the course of the RI/FS, site conditions may deteriorate to the point that removal
activity is required. The case team should be prepared for the possibility that a removal
may jje requjj-ed during the RI/FS and include provisions for such a situation in the
settlement document. RPMs should ensure that appropriate language is incorporated into
the AOC or CD to reserve liability for such costs.
E.
Additional Work
Under the AOC or CD, PRPs agree to complete the RI/FS, including the tasks required
under either the original work plan or a subsequent or modified work plan. This may
include determinations and evaluations of conditions that are unknown at the time of
execution of the agreement. Modifications to the original RI/FS work plan are frequently
required as field work progresses. Work not explicitly covered in the initial work plan is
often required and therefore provided for in the order. This work is usually identified
during the RI and is driven by the need for further information in a specific area. In
general, the agreement should provide for fine-tuning of the RI or the investigation of an
18-RIlFS Negotiations/Settlement
-------
area previously unidentified. As it becomes clear what additional work is necessary, EPA
will notify the PRPs of the work to be performed and determine a schedule for completion
of the work.
EPA must ensure that the clauses for modifications to the work plan are included in the
agreement so that the PRPs will carry out the modifications as the need for them is identi-
fied. To facilitate negotiation on these points, EPA may consider one or more of the
following provisions in the agreement for addressing such situations:
+ Defining the limits of additional work requirements
* Specifying the dispute resolution process for modified work plans and additional work
requirements (this is particularly difficult if the State is involved)
* Defining the applicability of stipulated penalties to any additional work which the
PRPs agree to undertake.
The order may not agree that there will not be an investigation of potential problem areas.
R1IFS Negotiaiions/Settlement-19
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Section V. References
GllidanCG OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving Munici-
palities or Municipal Wastes" (December 6,1989).
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1987).
OSWER Directive 9335.3-01 "Guidance for Conducting Remedial Investigations and
Feasibility Studies Under CERCLA," Appendix A, "PRP Participation" (October 1988).
OSWER Directive 9355.01 FS1, "Getting Ready — Scoping the RI/FS" (November 1989).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OSWER Directive 9835.8, "Model Statement of Work for a RI/FS Conducted by PRPs"
(June 2,1989).
OSWER Directive 9835.12-01 a, "Revised Policy on Discretionary Information Release
Under CERCLA" (March 1993).
OSWER Directive 9835.15, "Performance of Risk Assessments in RI/FSs conducted by
PRPs" (August 28,1990).
OSWER Directive 9835.3-1 A, "Model Administrative Order on Consent for RI/FS"
(January 30,1990).
ManU3lS OSWER Directive 9355.1-1, Superfund Federal Lead Remedial Project Management
Handbook (December, 1986).
OSWER Directive 9375.1-4-d, State Participation in the Superfund Program, Appendix
D, "Procedures for Implementing Intergovernmental Review for the Superfund Program"
(June 2, 1988).
Contacts Administrative Orders and Consent Decrees
OE, Superfund Enforcement Division, Settlement/106 Branch, at 202-260-3110
OWPE, CERCLA Enforcement Division, Compliance Branch, at 703-603-8910
Model AOC for RI/FS
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch, at
703-603-8940
Special Notice Procedures and Model Letters
OWPE, CERCLA Enforcement Division, Compliance Branch, at 703-603-8910
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch at
703-603-8940
Model SOW
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch, at
703-603-8940
Litigation Support
U.S. Department of Justice, Environment and Natural Resources Division, Litigation
Support Group, at 202-616-3354
20-RI/FS Negotiations/Settlement
-------
Section VI. Activities Checklist
This activities checklist is not intended to provide an exhaustive list of procedures. RPMs
should use it as a guide when involved in RI/FS negotiations.
1) Decision to start the RI/FS
a) Is the RI/FS start planned in the SCAP?
b) Initiate intergovernmental review process
2) Form Case Team
a) Review PRP search and identify follow-up work
b) Begin developing negotiation plan
3) Information exchange/general notice
a) Issue information request letters
b) Issue general notice letters
c) Encourage formation of PRP steering committee
d) Complete follow-up work identified during PRP search
review
e) Notify State and Natural Resource Trustees of negotia-
tions
4) Preliminary Scoping
a) Develop site objectives
b) Develop site management strategy
5) Negotiation Preparation
a) Develop SOW
b) Develop draft AO
6) Formal Negotiations
a) Issue special notice letters
b) Evaluate good faith offer
c) Request negotiation extension, if appropriate
7) Conclude negotiations
a) Prepare AO for signature
b) Initiate Fund-financed activity, if appropriate
RllFS NegotiationslSettlement-21
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Appendix
Remedy Selection and Negotiation Plan
1. Schedule and Staffing Requirements
a. Provide a schedule for completing the negotiations (including activities, staff
and contractor support)
b. Describe coordination with State and other government offices
2. Negotiation Objectives
a. Develop initial and bottom-line negotiation positions
b. Assess the desirability of a PRP RI/FS relative to site and PRP history to date
c. Identify potential for alternative settlements, including mixed funding, de
minimis or partial settlements
3. Costs Incurred and Cost Recovery Plan
a. Summarize costs incurred to date and estimate future response costs at the site
b. Develop negotiation strategy for cost recovery, including the degree of
compromise available on past and oversight costs and the linkage between
recovery of past and oversight costs and PRP performance
c. Describe the methods used to document costs for the site and identify sources
for cost documentation requests
d. Assess timing of demand, considering statute of limitations, etc.
4. Remedy Selection Process
a. Discuss the methodology used in selecting a site remedy (identifying partici-
pants in RI/FS review; ROD preparation; RPR and public participation in the
process; and compilation, review, updating and certification of the Adminis-
trative Record)
b. Indicate how remedy selection affects the RD/RA negotiation process
5. Criteria For Good Faith Offer
a. Include PRPs willingness to conduct or finance site clean-up activities and
reimburse EPA for oversight activities, response to EPA's statement of work,
demonstration of PRP capabilities, etc.
6. Enforcement Prerequisites
a. Discuss the progress made in identifying PRPs and PRP willingness to
cooperate with the government
b. Assess enforcement potential including determination of imminent and sub-
stantial endangerment, strength of evidence/liability, financial viability of
PRPs, etc.
c. Assess use of enforcement tools including special notice, unilateral actions,
actions against recalcitrants, etc.
7. Technical Requirements For PRP Performance
a. Develop scope of work or work plan
b. Describe key items required to conduct PRP oversight
c. Assess the site access situation
8. Draft Administrative Order (AO) or Consent Decree (CD), as appropriate
RI/FS Negotiations/Settlement-A 1
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VI. RI/FS
IMPLEMENTATION
-------
Chapter VI
RI/FS Implementation
Section I. Description of Activity 1
Introduction 1
RI/FS Overview 1
Phases of RI/FS Activity 2
Pre RI/FS Negotiation Scoping 2
Post-AOC Scoping 2
Site Characterization 2
Baseline Risk Assessment 2
Treatability Investigations 3
Development and Screening of Alternatives 3
Detailed Analysis of Alternatives 3
Oversight Objectives 3
Roles and Responsibilities 4
RPM 4
Oversight Assistant 5
Natural Resource Trustees 6
ATSDR 6
Section II. Procedures and Interactions 7
A. Project Scoping 7
Pre-RI/FS Negotiation Scoping 7
Scoping After Agreement 8
Work Plan 8
Sampling and Analysis Plan (SAP) 9
Health and Safety Plan 9
B. Site Characterization 9
Collection and Analysis of Field Data 9
C. Risk Assessment 10
D. Treatability Investigations 11
E. Development and Screening of Alternatives 12
F. Detailed Analysis of Alternatives 13
Section III. Planning and Reporting Requirements 14
A. SCAP/STARS 14
RI/FS Implementation-!
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Section IV. Potential Problems/Resolutions 17
A. Dispute Resolution 17
B. Corrective Measures 17
Section V. References 18
Regulation 18
Guidance 18
Manuals 18
Short Sheets 19
Training 19
Contacts 19
Section VI. Activities Checklist 20
Appendix
RI/FS Scoping Following AO A1
Rl: Site Characterization, Baseline Risk Assessment, and Rl Report A2
Treatability Investigations A3
Feasibility Study: Development and Screening of Alternatives A4
Feasibility Study: Detailed Analysis of Alternatives and FS Report AS
ii-RIIFS Implementation
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Chapter VI
RI/FS Implementation
Section I. Description of Activity
Introduction This chapter focuses on the RPM's role in overseeing the implementation of a PRP-
conducted RI/FS. To put the oversight responsibilities in context, a summary of the RI/FS
process also is provided.
A PRP-conducted RI/FS is usually authorized by an Administrative Order under sections
104 and 122 of CERCLA and may be ordered unilaterally under section 106.' It is EPA's
policy to allow the PRP to conduct the RI/FS when the PRP:
* Is technically qualified or otherwise capable of performing the necessary activities
within the time constraints
* Agrees to conduct the RI/FS in accordance with the terms and conditions of the
Administrative Order or Consent Decree
* Reimburses the Superfund for all EPA and qualified oversight assistant costs associ-
ated with oversight of the project.
RPM management of the RI/FS begins in preliminary scoping before a Special Notice
Letter (SNL) has been sent out to the PRP. Actual PRP implementation of the RI/FS
begins after the Administrative Order is signed during scoping. The process is complete
once the Agency conducts a closeout meeting, approves the final RI/FS report as submit-
ted by the PRPs or as amended by the Agency, and issues the Record of Decision (ROD).
For a more in-depth discussion of EPA oversight of PRP RI/FSs, refer to the "Guidance on
Oversight of Potentially Responsible Party Remedial Investigations and Feasibility
Studies, Volumes 1 and 2" (OSWER Directive Nos. 9835.1(c) and (d), July 1991).
RI/FS OV6rvi6W In general, the RI/FS is an investigation designed to characterize a site, assess the nature
and extent of the contamination at a site, evaluate the potential risk to human health and
the environment, and develop and evaluate potential remedial alternatives. An RI/FS
accomplishes two primary objectives:
* Provides information to assess the risks posed to public health and the environment
by the site
* Evaluates a range of remedial alternatives (treatment controls, institutional controls,
or a combination of these plus a no action alternative) based on specified site criteria.
The process is composed of the RI, which is the actual field data collection and in-house
risk assessment process (corresponding to the first objective), and the FS, which develops
and evaluates remedial alternatives. The RI and FS include iterative activities and will
overlap in timing. Data collected in the RI influences the development of remedial
alternatives in the FS, which in turn affects the data needs and the scope of treatability
studies. The distinction between the RI and FS phases is made to emphasize the focus of
the studies.
The specific tasks required to perform an RI/FS vary, and are phased in accordance with a
site's complexity and the amount of available information. A phased RI/FS process
1 The terms and conditions governing RI/FS activities also may be specified in a Consent Decree
(CD). The AOC, however, is the preferred settlement document because it is not subject to
court approval.
RI/FS Implementation-!
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facilitates early identification of data collection requirements. These requirements are
intended to characterize the site effectively by describing contaminant concentration, fate
and transport, and exposure pathways so that sufficient information is available to deter-
mine risk and if necessary, evaluate and compare the remedial alternatives.
Phases Of RI/FS Activity There are seven major phases of RI/FS activity. Each phase is briefly summarized below
and graphically depicted in Exhibit VI-1. In addition, the Oversight Guidance (referenced
previously) has a chapter on each phase.
Pre-RI/FS Negotiation Scoping Pre-RI/FS scoping begins several months before an SNL for an RI/FS has been sent out to
the PRP and is completed when the RPM:
* Obtains a general understanding of the site using the existing information and
determines, generally, the data needed to make a remedy selection decision
* Utilizes a Technical Support Team (TST) to assist on the RI/FS and in executing the
tasks of future PRP oversight
* Visits the site to identify the conditions of the site, effects of contaminants, and the
potential areas of concern
* Generates a preliminary site-specific SOW and draft AOC.
Pre-RI/FS negotiation scoping is the initial task performed internally by the RPM with the
help of the support contractor. During this preliminary planning phase prior to negotia-
tions between EPA and the PRPs, EPA develops a site-specific general plan to identify
potential sources of contamination, pathways, and receptors. The Agency then establishes
site-specific objectives of the RI/FS and a strategy for the general management of the site.
The preliminary scope should utilize a TST to ensure that the objectives of the RI/FS are as
clear as possible, there is sufficient understanding of the desired work to negotiate a
statement of work, and resource needs can be defined.
Post-AOC Scoping Post- AOC scoping is the activity planning and project plan development phase of the RI/
FS. It occurs after negotiations are completed and an AOC, including a SOW, has been
signed by EPA and the PRP. During this phase, the RPM, with the help of an oversight
assistant and members of the TST, refines the site conceptual model and the preliminary
site objectives and data needs that were developed in the pre-RI/FS negotiation scoping.
This information is used to assist the PRP to develop project plans which are then subject
to EPA's review, comment, and approval. Many of the activities begun during the scoping
process ( i.e., preliminary risk assessment, need for treatability studies, identification of
ARARs) are continued and refined as site work progresses and new information is ob-
tained.
Site Characterization ^te characterization involves the collection and analysis of field data to determine the
physical site characteristics, sources of contamination, and nature and extent of contamina-
tion. Data are gathered during the RI for other analyses (e.g., EPA's risk assessment,
treatability study evaluation, and the natural resource trustee survey) which also are
conducted during site characterization, so that the Feasibility Study can be completed and
conducted without the need for additional information gathering.
Baseline Risk Assessment ^he purpose of the baseline risk assessment is to characterize the current and potential risk
that the site poses to human health and the environment. The results of the baseline risk
assessment may indicate that the site poses substantial, little, or no threat, and that substan-
tial, limited, or no further response activity is required. If the baseline risk assessment
2-RI/FS Implementation
-------
FROM:
• Preliminary
Site
Assessment
• Site
Inspection
• NPL Listing
PRE-RI/FS
NEGOTIATION SCOPING
Obtain General
Understanding of
the Site
Utilize Technical
Support Team
Visit Site to
Identify Potential
Areas of Concern
Generate
Statement of
Work
SCOPING
OFTHERI/FS
Review Existing
Data
Identify
Preliminary
Project/Operable
Unit, Likely
Scenarios &
Remedial Action
Objectives
Initiate
Federal/State ARARs
Identification
Prepare Project
Plans
Exhibit VM
Phased RI/FS Process
REMEDIAL INVESTIGATION
SITE CHARACTERIZATION
Conduct Field Investigation
Define Nature of Extent of
Contamination (Waste
Types, Concentrations,
Distributions)
Identify Federal/State
Chemical- and
Location-Specific ARARs
BASELINE RISK ASSESSMENT
(EPA ONLY, FOR ALL AOCs
SIGNED AFTER 6/21/90)
Collect and Evaluate Data
Perform Exposure
Assessment
Perform Toxicity
Assessment
Characterize Risk
TREATABILITY INVESTIGATIONS
Perform, Literature Survey,
Bench, or Pilot Treatability Tests
(As Necessary)
FEASIBILITY
STUDY
DEVELOPMENT AND
SCREENING OF ALTERNATIVES
Develop Preliminary
Remediation Goals
Identify Federal/State
Action-Specific ARARs
Identify Potential Treatment
Technologies,
Containment/Disposal
Requirements for Residuals or
Untreated Waste
Screen Technologies (If Necessary)
Assemble Technologies Into
Alternatives
DETAILED ANALYSIS
OF ALTERNATIVES
Modify Preliminary
Remediation Goals
Further Refine
Alternatives (As
Necessary)
Analyze Alternatives
Against The Nine Criteria
Compare Alternatives
Against Each Other
TO:
Remedy Selection
Record of Decision
Remedial Design
Remedial Action
-------
indicates that action is necessary, remediation goals are determined for the site contami-
nants with an evaluation of how each viable alternative carried through to the detailed
evaluation addressed the risk(s). Beginning with all AOCs (or CDs) signed after June 21,
1990, EPA will prepare the baseline risk assessment at all enforcement-lead sites. See
OSWER Directive 9835.15, "Performance of Risk Assessments in Remedial Investigation/
Feasibility Studies Conducted by Potentially Responsible Parties" (August 28,1990), and
OSWER Directive 9835.15a, "Supplemental Guidance on Performing Risk Assessments in
Remedial Investigations/Feasibility Studies Conducted by Potentially Responsible Parties"
(July 2,1991).
Treatablllty Investigations Treatability studies are conducted during the RI and should provide the data needed to
evaluate one or more treatment technologies for potential analysis during the development,
screening, and detailed analysis in the FS. RPMs should identify and encourage the PRPs
to identify the need for treatability testing as early in the RI/FS process as possible. If
remedial actions involving treatment have been identified by either EPA or the PRPs, the
RPM should determine the need to conduct treatability studies. Testing during the RI of
the most promising treatment technologies is often necessary to assess their effectiveness.
Development and Screening of Alternatives developed represent a range of response actions that, with the exception of the
Alternatives no action alternative, are protective of human health and the environment and meet
ARARs or qualify for a waiver. The aim of this task is to devise a complete and concise
list of remedial alternatives and screen this list according to cost, effectiveness, and
implementability. Under some circumstances, such as when the site is a municipal landfill,
developing a complete range of alternatives may not be practical. If site-specific condi-
tions warrant the omission of a full range of alternatives, RPMs should ensure that the
rationale for reaching this decision is well documented.
During the detailed analysis, each alternative is assessed against EPA's set of nine evalua-
Detalled Analysis of Alternatives don criteria The PRPs shouid present the results of this assessment in a format that allows
the RPM to make reasonable comparisons among alternatives. By making these compari-
sons, the RPM can identify trade-offs among the various alternatives. See Chapter VII,
Selection of Remedy, for the list of the nine evaluation criteria or refer to page 13 of this
chapter. Appendix F of OSWER Directive 9355.3-01 "Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA" (October 1988) contains sample
formats for arranging detailed analysis of alternatives. Also see the NCP section 300.430
(March 8,1990) for a more detailed discussion of the nine criteria.
Oversight ObJGCtiVGS Under section 104(a)(l) of CERCLA, the Agency is responsible for providing oversight of
PRP-conducted RI/FS. The RPM has primary responsibility for managing RI/FS over-
sight.
The nature of oversight activity at a particular site depends upon the technical complexity
of the site and possible remedies, the nature of the work being done, the Agency's level of
confidence in the PRP's technical competence and, during the course of the project, the
PRP's demonstration of quality work. In general, the RPM is responsible for accomplish-
ing four primary objectives:
+ Verifying that the work complies with the Administrative Order (AO) (or in some
instances, the Consent Decree), the Statement of Work (SOW), work plan, and
Sampling and Analysis Plan (SAP)
* Verifying that the RI/FS complies with CERCLA, the NCP and relevant Agency
guidance
RI/FS lmplementalion-3
-------
+ Verifying that all work is performed according to generally accepted scientific and
engineering methods
* Verifying that sufficient data of acceptable quality is being collected and analyzed to
enable EPA to characterize the site, identify site risks, develop a range of alternatives,
select a preferred remedial alternative, and write the ROD.
Achievement of these objectives depends, in part, upon the terms of the agreement be-
tween EPA and the PRP, guidance and direction provided to the PRP, and effective project
review.
The agreement between EPA and the PRP will not be discussed in this chapter because it is
covered in Chapter V, RI/FS Negotiations/Settlement. However, it is important to remem-
ber that the preliminary scoping conducted prior to negotiations, the PRP's qualifications,
and the terms of the agreement establish a framework affecting oversight during the actual
conduct of the RI/FS.
The RPM should provide as much guidance as possible to the PRPs early in the RI/FS
process. Relevant EPA guidance documents and examples of deliverables are appropriate
materials that should be provided. Guidance and expectations concerning format, technical
content, mechanisms for incorporating Agency comments, and schedule of deliverables
also must be clearly communicated. Frequent meetings with the PRPs during the course of
the RI/FS facilitate PRP implementation that will satisfy Agency criteria.
Finally, the RPM must effectively manage the project to meet the RI/FS objectives within
the time constraints specified in the AOC. To effectively manage the project, the RPM,
with contractor support, must review all deliverables and oversee the on-going site activi-
ties of the PRP-conducted RI/FS. The level of oversight (i.e., frequency of site visits and
meetings, number of split samples) should be determined site-specifically based on
technical considerations (i.e., risk, treatability studies, use of innovative technologies,
presence of hydrogeologic anomalies or contaminants of special concern) and Agency
expectations related to the quality and timeliness of PRP field work, laboratory analysis,
and deliverables.
RoleS and Following is a summary of the primary roles and responsibilities of the RPM, oversight
assistant, Natural Resource trustees and ATSDR during the RI/FS. The appendix of this
chapter contains exhibits which detail roles and responsibilities through the seven RI/FS
phases.
RPM The RPM has the primary responsibility for overseeing all response activities. Prior to the
signing of the agreement between EPA and the PRP, the RPM will:
+ Identify the preliminary scope of RI/FS activity
* Coordinate with the State and, as appropriate, other agencies (e.g., DOI, NOAA,
ATSDR) on scoping
+ Identify the site-specific activities and deliverables required from the PRP
* Prepare a project schedule for the Administrative Order
4 Ensure necessary Regional management review and approval of scoping decisions,
activities, schedule, etc.
* Identify persons/agencies/extramural resources with particular expertise that will
provide technical review of activities and deliverables (these mechanisms also should
be used for scoping) and agree to the scheduled time frames
* Budget intramural and extramural resources to support the project and finalize
associated paperwork
* Verify that the planned activities will meet statutory requirements, satisfy the RI/FS
objectives, and satisfy the provisions of relevant guidance.
4-RI/FS Implementation
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Typically, the RPM will perform the following during the RI/FS:
* Conduct scheduled and unscheduled site inspections in conjunction with the oversight
assistant
* Monitor PRP adherence to the agreement; consult with counsel
* Review all PRP and oversight assistant deliverables to ensure quality and provide
related technical comments
* Obtain internal EPA input on specialized matters (e.g., ground water, contaminants,
bedrock)
* Meet with the PRPs periodically to communicate the Agency's requirements and
discuss progress, including good work and deficiencies in the work, and needed work
+ Maintain Agency schedule for reviewing deliverables or meeting any other deadlines
+ Ensure that information is updated in the Agency's tracking system (CERCLIS/
WasteLAN)
* Ensure that any aspects of the RI/FS performed by EPA are done in a timely manner
(e.g., EPA's risk assessment or ARAR analysis)
* Manage intramural and extramural resources
+ Maintain communication with the State throughout the RI/FS process with an
emphasis on understanding State perspective, identifying ARARs, and coordinating
community relations
* Coordinate intergovernmental interactions
* Ensure EPA management review at major stages (e.g., work plan, draft RI, proposed
plan, ROD)
* Conduct community relations activities, with assistance of the community relations
coordinator
* Maintain the site file, including cost recovery documentation
* Establish and update periodically the Administrative Record in conjunction with ORC
and the Administrative Record Coordinator (ARC)
* Finalize any supplements to the RI/FS and write the proposed plan and ROD.
Oversight Assistant Under section 104(a)(l) of CERCLA, EPA must procure the services of a qualified person
to assist the Agency in overseeing PRP-conducted activities. The oversight assistant's role
is to provide assistance to the RPM in overseeing PRP-conducted RI/FS activities. The
RPM should use discretion in determining the roles and responsibilities of the oversight
assistant.
Responsibilities that the RPM may assign to the oversight assistant include:
* Compiling and presenting existing information into a site conceptual model
* Monitoring PRP field activities to verify performance in accordance with the agree-
ment with the PRPs and generally accepted scientific and engineering methods
* Reviewing deliverables submitted by the PRPs
* Conducting quality assurance tasks
* Conducting the risk assessment
* Drafting any necessary supplements to the RI/FS for Agency finalization
* Conducting contingency planning to protect human health and the environment in the
unexpected event of an emergency
* Assisting in the reproduction of documents for the site file, and the Administrative
Record in the Regional office and at the site. (Decisions on what documents to include
are made by the RPM in conjunction with Regional counsel)
RI/FS Implementation-^
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* Preparing and assisting in the implementation of community relations deliverables and
tasks
* Providing site-specific information to the Regional IMC for input into CERCLIS/
WasteLAN.
Procurement of the oversight assistant's service is typically obtained through Technical
Enforcement Support (TES) and the Alternative Remedial Contracts Strategy (ARCS)
contracts.
The RPM also may seek assistance in executing his/her oversight responsibilities from the
Department of the Interior (U.S. Fish and Wildlife Service and U.S. Geological Survey)
and the Department of Defense (U.S. Army Corps of Engineers), among other Agencies.
The oversight assistant should perform tasks in a professional and non-confrontational
manner. There are limitations on the oversight assistant's authority. The oversight
assistant should not advise or issue directions regarding, or assume control over, any aspect
of the RI/FS when communicating with the PRPs. The RPM should control the amount of
direct communication between the oversight assistant and the PRPs. The oversight
assistant has no authority to allow deviations from the site agreement, which includes the
work plan, or any other project plans. Any deviations must be approved by the RPM.
The natural resource trustees are responsible for assessing damages to natural resources
Natural Resource Trustees within their domain. The Federal assessment begins with Preliminary Natural Resource
Surveys (PNRS) which are typically initiated at the beginning of the RI/FS process. The
surveys are designed to assist the Agency in reaching comprehensive settlements of all
Federal natural resource claims under CERCLA. PNRS are conducted by the natural
resource trustees. Trustees include the Federal and State governments and the Indian
Tribes. The National Marine Fisheries Service of the National Oceanic and Atmospheric
Administration (NOAA) has jurisdiction over marine and coastal fisheries, and a shared
jurisdiction over anadramous fish (e.g., salmon, striped bass) and catadramous species
(e.g., eels). The area of their jurisdiction, generally speaking, is the coastal states and
oceanic possessions, including the bays, estuaries, rivers, and wetlands that are the habitats
of the species of concern. The Fish and Wildlife Service of the Department of the Interior
(DOI) has jurisdiction over all migratory species and endangered and threatened species.
For other generally non-migratory species the respective States, territorial governments,
and Indian Tribes should be contacted. RPMs should confirm with Regional management
procedures for notifying the trustees.
Under section 104(j)(6) of CERCLA, the Agency for Toxic Substances and Disease
ATSDR Registry (ATSDR) must perform a health assessment for all NPL sites. This assessment
must be performed within one year of the site's proposed listing. The ATSDR's health
assessment is intended to determine the potential risks to human health posed by the site.
After a site is proposed for listing on the NPL, the RPM should send the preliminary
assessment and site inspection report to the ATSDR and maintain information exchange
with them. However, RPMs must be cognizant of the fact that ATSDR may not withhold
site-related draft documents requested by the public. Therefore, RPMs must be careful not
to release confidential or enforcement-sensitive documents to ATSDR. RPMs are respon-
sible for reviewing and commenting on the draft Health Assessment provided by the
ATSDR. Data collected during the RI activities and reports generated as a result of that
data collection also should be forwarded to ATSDR.
6-RJ/FS Implementation
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Section II. Procedures and Interactions
This section summarizes the process and deliverables associated with each phase of RI/FS
activity. The specific procedures to follow in performing RI/FS oversight are described in
OWPE's "Guidance on Oversight of Potentially Responsible Party Remedial Investiga-
tions and Feasibility Studies" Volumes 1 and 2, OSWER Directive Nos. 9835.l(c) and (d),
July 1991.
A. Project Scoping
Scoping is the planning phase of the RI/FS process. Project scoping for a site where it is
anticipated that the PRP will conduct portions of the RI/FS occurs in two phases: before
and during RI/FS negotiations, and after the PRP has signed an agreement with EPA.
RPM responsibilities during each of these phases of project scoping also are discussed in
section I of this chapter.
Pre-RI/FS
Negotiation Scoping
Prior to the negotiations, the RPM begins defining the technical and administrative scope
of the pending RI/FS and the requisite oversight.
It is helpful for the RPM with the assistance of the support contractor to sketch out a rough
conceptual model of the site, including:
* Source areas
* Contaminants
* Possible extent of migration
* Media of concern
* Pathways
* Possible receptors
* Possible risks
* Possible acceptable contaminant ranges
* Possible remedies.
The RPM should ascertain what information is required to delineate these matters. Fol-
lowing general identification of this information, specific data needs should be defined.
The RPM then needs to develop specific instructions to add to the model statement of
work to ensure that necessary data is gathered. In particular, the site-specific objectives
and general management strategy should be added to the model SOW.
It is particularly important that the statement of work be as specific as possible about what
is needed in the work plan, but it should not be so specific as to limit generally required
work. The RPM should also keep in mind that Technical Assistance Committees (TACs),
which are internal EPA resources, or Technical Support Teams (TSTs) and contractor
support can and should be used during preliminary scoping.
Preliminary information that is used to develop the technical scope includes (1) existing
technical information, and (2) determination of decision points in the process and corre-
sponding data needs.
Administratively, the RPM should (1) initiate and maintain information exchange with
other Federal and State agencies, (2) identify enforcement concerns and provide technical
information to Regional counsel for use in planning and conducting negotiations, (3) plan
for intramural and extramural resources and initiate associated paperwork, and (4) procure
an oversight assistant before the order is finalized to prevent unnecessary delays.
At this time, the RPM should also begin identifying oversight and review functions and
time frames. The RPM, in conjunction with the Section/Unit Chief, determines what
RI/FS Implementation-?
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oversight activities are to be performed by TES or ARCS contractors or by other govern-
ment entities. One of the initial oversight activities that occurs during this phase is EPA's
assessment of the PRP's ability to conduct portions of the RI/FS as demonstrated in their
Good Faith Offer (GFO) submitted within 60 days of the issuance of special notice. This
oversight activity is discussed in Chapter V, RI/FS Negotiations/Settlement. Another
oversight planning activity is the scheduling of regular meetings with the PRPs that
commence after an agreement has been reached.
Scoping After Once the Administrative Order has been signed by EPA and the PRP, the RPM should:
Agreement + Conduct a project initiation meeting and site visit with the PRP and if procured, the
oversight assistant
4 Coordinate interagency and intergovernmental responsibilities and support functions,
(e.g., Natural Resource Trustees, Army Corps of Engineers, etc.) and include the
concerns of each in site-specific project plans
4 Review and approve, as appropriate, PRP project plans
4 Develop and begin implementing the community relations pi an in conjunction with the
Community Relations Coordinator. Any PRP participation in community relations
activities is controlled by EPA.
The required deliverables for the scoping process include a work plan, sampling and
analysis plan, and a health and safety plan.
It is very important to communicate with the PRPs at the beginning of the process to
enhance prospects for quality work. At a meeting, the RPM should ensure that the PRPs
understand the applicable guidances and that they understand what EPA expects of them in
the RI/FS.
The RPM is responsible for coordinating review of project plans and for final approval of
those plans. PRP-conducted RI/FS activity cannot be initiated until the RPM approves the
plans. The RPM may conditionally approve sequential portions of project plans so that
revisions concerning activities scheduled later in the project do not adversely impact the
schedule of earlier activities. Conditions to the approval must be specific. Conditional
approvals should be reviewed by the Section/Unit Chief.
In addition, due to the uncertainties associated with sites and as additional information is
obtained, it may be necessary to modify or supplement the initial plans. The RPM must
review and approve any modifications in writing.
Work Plan The PRP's work plan expands the tasks of the Statement of Work (SOW) by detailing the
work to be done in conducting the RI/FS.
The draft work plan is generally submitted by PRPs after the AO is signed. It must direct,
in detail, the activities and deliverables specified in the SOW, including a schedule for all
activities. Together with the Sampling and Analysis Plan (SAP), it ensures that PRPs
gather all information and do the analyses needed in an RI/FS and for a ROD. Thus, it is
important for the work plan to be carefully reviewed by the RPM. The draft work plan
may also be reviewed by the Natural Resource Trustees and other divisions (programs)
within the Regions, including the Quality Assurance Office (QAO). The aspects of the RI/
FS that must be delineated in the work plan are described in the model SOW, which is
discussed in Chapter V, RI/FS Negotiations/Settlement and also in this chapter. Once a
work plan has been incorporated by reference into the AO, the RPM must ensure that the
plan is available for public review as part of the Administrative Record.
8-R1IFS Implementation
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Sampling and Analysis Plan The SAP details the procedures that the PRP plans to implement for conducting all field
(SAP) activities. It has two components: a field sampling plan (FSP) and a quality assurance
project plan (QAPP). The FSP provides a detailed description of all RI/FS sampling and
analytical activities, hi some Regions, it may be part of the Work Plan. The QAPP
describes the quality assurance and quality control protocols necessary to achieve required
data quality objectives. Data quality objectives (DQOs) are established and ensure that the
analyses are performed with sufficient detection limits to identify relatively low but
significant concentrations of contaminants and to ensure that sufficient data are gathered.
A pre-QAPP meeting is held between PRPs, PRP contractors and laboratory representa-
tives, the RPM, QAO representatives, and the oversight assistant. The RPM should review
the QAPP and FSP with the Environmental Services Division (ESD) to determine whether
the PRP plans can achieve the DQOs.
Health and Safety Plan The health and safety plan describes any special training, supervision, procedures, and
protective equipment needed by field personnel. EPA reviews the plan to ensure that it
provides for the protection of human health and the environment, but does not "approve"
the PRP's health and safety plan. PRPs must comply with Occupational Safety and Health
Administration (OSHA) requirements.
Exhibits VI-2 and VI-3 portray RI/FS oversight activities during the scoping phase and the
other RI/FS phases.
SJtB The objectives of this phase are to define the site characteristics, the source(s) of contami-
nation, the nature and extent of contamination, and to determine possible fate and transport
of contaminants as preparation for determining site risks. The major components are
collection of field data, analyses of data and report preparation.
Collection and As an approach, RPMs may suggest that the PRPs direct their initial field data collection
Analysis Of Field Data effort to developing a general understanding of the site. Once this understanding is
achieved, RPMs should confirm that the PRPs focus more extensive efforts on filling gaps
in the data. Implementing a phased sampling approach may ensure the efficient collection
of data.
RPMs must have the PRPs establish the quality of old data through reliable means. Data
quality objectives apply to all data—old and new. The required technical memorandum
documenting the need for additional data should include the analysis and meaning of old
data as the basis for establishing what additional data is needed.
It is imperative that the site characteristics, including physiography, geology,
hydrogeology, and hydrology, be defined. This foundation is critical to subsequent
defining of potential transport pathways. In addition, data gathered during site character-
ization are used in treatability analyses and in analysis of remedial alternatives.
Determination of the location of each source is often difficult, particularly at old sites.
Aerial photographs from historical files and interviews often provide helpful insights. For
each location, the area and depth of contamination are usually determined at incremental
depths on a grid. Data on contamination are often gathered at various depths to show
concentration gradients to health-based levels. It is important to gather data to define
principal threat areas and volumes that may warrant treatment. It is also important to
gather material for contaminant mobility, leaching and treatability testing.
The RPM must ensure that the PRP provides notice of the planned dates for field activities
at least two weeks in advance. During the PRP conduct of field activities, the RPM must
ensure that the PRPs collect sufficient information at the proper locations and follow QA
and QC procedures. The oversight assistant should keep accurate records of site activities.
This can be accomplished, in part, by having the PRP and the oversight assistant use:
RI/FS Implementation-9
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4 Field activity reports
* Field logbooks
+ Photographic logs.
Field activity reports may include a checklist to remind the oversight assistant of the
critical elements of the field activities and as a convenient means for documenting field
activities. Samples of field activity reports are provided in the appendix of OSWER
Directive 9835. l(c) and (d), "Guidance on Oversight of Potentially Responsible Party
Remedial Investigations and Feasibility Studies" Volumes 1 and 2, July 1991. Field
activity reports should be used in conjunction with the SAP. By combining these two
reporting tools, the oversight assistant will have a valuable tool to remind him/her of site-
specific planned activities. These combined reports may also enable the oversight assistant
to keep an accurate record of site activities that are not conducted according to plans.
Oversight assistants usually maintain an activity logbook. The logbook generally includes:
records of pertinent conversations with either the PRP or its contractor, a list of potential or
actual problems encountered at the site, an explanation for changes to the work plan, and a
record of any field activities not included in the field activity reports as well as a descrip-
tion of daily activities and contacts with the public or press.
A photographic or video record of field activities may also be a useful tool for document-
ing field work for PRPs as well as the oversight assistant. If the oversight assistant elects
to use one of these tools, he/she should keep detailed information about the location, date,
time and subject matter of each photograph or tape.
If the RPM has not received sampling data within a month of analysis by the PRP's
laboratories, he/she should contact the PRPs to determine the reason for the delay.
In addition to the progress meetings, reports, technical memoranda, and data summaries,
the required deliverables for the site characterization process include the preliminary site
characterization summary and, once the baseline risk assessment is complete, the draft
Remedial Investigation (RI) report.
The preliminary summary is prepared after the results from sampling efforts are available.
It provides information on contamination at various locations and depths, including
contaminants of concern and associated concentrations. It may include fate and transport
projections. It also provides information for the risk assessment and a reference for the
RPMs to ensure that appropriate alternatives are being developed by the PRPs. The
summary may be used to provide ATSDR with data to use in preparing health assessments.
RPMs should ensure that the data satisfy QA/QC requirements and are accurately dis-
played.
The draft RI report documents the data collection and analysis and supports the FS.
C. Risk ASSGSSITIGnt ^ baseline risk assessment, which may be referred to as an endangerment assessment, is
conducted during the RI. Regional management will use the baseline risk assessment to
determine whether, in the absence of remedial action, a particular site poses a substantial
danger to public health and welfare and the environment. There are two separate inquiries:
human health and the environment. The human health evaluation addresses: all exposure
pathways for each medium of concern; toxicity values for carcinogenic and noncarcino-
genic effects; and the cancer risk and/or hazard index for each chemical of concern. The
environmental evaluation addresses any critical habitats affected by site contamination and
any endangered species affected by the contamination.
The baseline risk assessment process is cumulative in nature: the components of the
assessment build on one another. For assistance in planning the conduct of the baseline
risk assessment, the RPM should refer to EPA's Superfund Human Health Evaluation
Manual, Superfund Exposure Assessment Manual, and Superfund Environmental Evalua-
10-RI/FS Implementation
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Exhibit VI-2
Overview of RI/FS Oversight Activities During Scoping
KEY:
EPA OVERSIGHT
ACTIVITY
DOCUMENT
PRP
Submit Precise
Qualifications
(if not done
earlier)
Submit Draft:
• Work Plan
• Sampling &
Analysis Plan
- FSP
- QAPP
• Health and
Safety Plan
TIMELINE
ERA'S
Preliminary
Project Scoping
Before
Negotiations
EPA
OVERSIGHT
Prepare
SOW, Special
Notice, and
Draft AOC
Conduct
Community
Relations
Activities,
Including
Public
Meetings
1
Refine Planning
& Schedule for
Upcoming
Oversight
Activities
Review Precise
PRP/Contractor
Qualifications
(if not done
earlier)
-------
Exhibit VI-3
Overview of Major RI/FS Oversight Activities
RI/FS
Scoping
Following
AOC
PRP
Rl Field
Work
Treatability Testing Candidate Technologies/Data Needs:
Determine Need; Work Plan; SAP; Work; Report
Review/Refine
Remedial Action
Objectives
Develop/Refine/Screen
Alternatives; Prepare
Document with Alternatives
Array and ARARs
Detailed Analysis
Prepare Summary
of Comparative
Analysis
1
Review/Modify/
Approve
Decision on
Testing, WP,
SAP and Report
DRAFT FS
AVAILABLE
FOR PUBLIC
COMMENT
Oversee Field
Work: QA Lab
Work; Review Site
Characterization
Summary
-------
lion Manual, and access the Integrated Risk Information System (IRIS) and the Public
Health Risk Evaluation Data Base.
In the summer of 1990, EPA issued a policy stating that it will not enter into any new
orders or decrees for PRP RI/FSs in which risk assessments are to be conducted by PRPs.
That is, new orders or decrees for PRP RI/FSs must state that EPA (or a State whose
oversight is Federally funded) does the risk assessment, and must not include risk assess-
ment products or deliverables to be developed by the PRP. Such risk assessment products,
including but not limited to identification of contaminants of concern, current and future
exposure scenarios, and toxicity information, will be prepared by EPA. The FS and
remedy selection shall be based on EPA's risk assessment. New orders or decrees should
explicitly state that PRPs will use EPA's risk assessment as the basis of the FS. See
"Performance of Risk Assessments in RI/FS, Conducted by PRPs, OSWER No. 9835.15,
August 28,1990".
This new policy does not change any responsibilities PRPs may have regarding the
collection of site data relevant to the development of the baseline risk assessment. It is not
expected, nor is it generally necessary, that EPA should independently collect data from
the field in order to be able to develop the risk assessment. Rather, this data should be
provided by the PRP's normal activities in conducting the RI under EPA oversight (of
course, as part of oversight Regions should continue to conduct audits, engage in split
sampling, etc. to ensure the accuracy of PRP-generated data).
New orders or decrees should stipulate that the PRPs will pay the costs for EPA (or a
State) to develop the risk assessment.
Within the terms of orders or decrees existing before June 21,1990, EPA will give a PRP
an opportunity to complete the risk assessment correctly. PRPs are expected to consult
with EPA early and throughout the risk assessment process so they can ensure that their
work is in accordance with the NCP and Agency guidance and is of comparable quality. If
the risk assessment delivered by the PRP is unacceptable, even after EPA has provided
comments or after the parties have exhausted other procedural requirements (such as
dispute resolution) as may be provided for in the order or decree, EPA will undertake its
own risk assessment.
Depending on the terms of the order or decree, the Region may provide comments on
drafts of an intermediate deliverable in those cases where orders require major intermedi-
ate deliverables for the risk assessment; if, after providing comments as required and
pursuing other recourses as may be required under the order or decree, the intermediate
deliverable from the PRP remains unacceptable, the Region may decide at that point to
prepare its own risk assessment. These procedures will allow EPA to avoid numerous
reviews throughout the development of the risk assessment, which can be costly in time
and resources.
If the Region determines that the final PRP risk assessment is fully acceptable, the Region
should document this finding in writing and place the written certification in the Adminis-
trative Record file. Such an explicit certification by EPA of a PRP risk assessment should
help assure the public that EPA is providing necessary oversight.
If, on the other hand, a risk assessment is undertaken by EPA because the PRP's is
unacceptable, EPA may use any part of the PRP's work deemed to be of high quality.
D.
Treatability
Investigations
Treatability studies are designed to provide information that EPA uses in the detailed
analysis of alternatives to the maximum extent practicable. The decision of whether to
conduct these activities is made in scoping and is based upon whether a treatment alterna-
tive is properly considered for the site, the nature and size of the site, the contaminants and
media they are in, the potential for migration and possible site risks, available information
in technical literature, and the uncertainties associated with selecting an appropriate site
remedy. It is imperative that these activities should be initiated during scoping because
RI/FS Implementation-11
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they may take over six months to complete (i.e., biotreatability tests). The final decision
on the type (literature survey, bench, or pilot) and extent of treatability testing depends on
uncertainties of treatment and the amount of work that should be deferred to the remedial
design (RD) process.
In addition to the progress meetings and reports, the required deliverables for treatability
investigations may include:
4 Identification of candidate technologies
4 Literature survey and determination of whether testing is necessary
4 Treatability testing work plan, or revisions to the original work plan
4 Treatability study SAP, or revisions to the original SAP
4 Treatability study health and safety plan, or revisions to the original
4 A treatability study evaluation report summarizing the results, evaluating the test, and
describing the following:
Remedial technology
Test objectives
Experimental procedures
- Treatability conditions to be tested
Analytical methods
Data management and analysis
Health and safety
Residual waste management
Following the completion of treatability testing, data should be analyzed and interpreted in
a technical report to EPA. Depending on the sequence of activities, this report may be a
part of the RI/FS report or a separate deliverable. The report should evaluate the
technology's effectiveness, implementability, and actual results as compared to the
predicted results. The report should also evaluate full-scale application of the technology,
including a sensitivity analysis identifying the key parameters affecting full-scale opera-
tion.
E. Development and
Screening of
Alternatives
During the process of developing alternatives, RPMs should ensure that the PRPs under-
take the following activities:
+ Develop more specific remedial action objectives acceptable to EPA using all RI
generated data. This is very important as it sets the goals of the FS
* Develop a range of general response actions
* Identify areas or volumes of the media to be treated, contained and/or subjected to
institutional controls
* Identify, screen, and document technologies
* Assemble a number of alternatives depending on site type and characteristics
4 Screen the remedial action alternatives, if necessary, on the basis of effectiveness,
implementability, and cost
* Prepare an alternatives array document.
The information developed during these two activities is used in assembling remedial
technologies into alternatives for either the site as a whole or for a specific operable unit.
At some sites, a number of potential remedial options may be developed early in the RI/FS
process. In such cases, the RPM should screen alternatives to narrow the list of options
that will be evaluated in detail. The screening process is necessary for two reasons. First,
12-RIIFS Implementation
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it streamlines the feasibility study process. Second, it ensures that the most promising
alternatives are being considered by EPA.
RPMs should either closely scrutinize the PRPs' conduct of the screening process or do
this themselves. The alternatives development screening document, including the alterna-
tives array, must be scrutinized. At this stage, ARARs should be given specific attention.
RPMs should be wary of PRP proposals that are not effective—that treat too little or do
not treat to appropriate levels. RPMs must ensure that Regional management will have a
number of distinct options and alternatives from which to select an appropriate site
remedy.
The information available at the time of screening should be used to identify and distin-
guish any differences among the various alternatives. If screening takes place, the techni-
cal memorandum should present the alternatives in such a manner that the RPM can
evaluate each alternative with respect to its effectiveness, implementability, and cost and
document the rationale for screening out any alternatives. RPMs should retain only the
alternatives that are judged as the best or the most promising while retaining a range of
alternatives broad enough to satisfy requirements of CERCLA and the NCP. These
alternatives should be subjected to further consideration and analysis. Alternatives that are
screened out will not receive further consideration unless additional information indicates
that further evaluation is warranted.
In the event that there are only a limited number of viable alternatives for a particular site,
the RPM should either minimize or eliminate the alternative screening process.
F. Detailed Analysis
of Alternatives
Nine evaluation criteria have been developed to address statutory requirements, as well as
the technical and policy considerations that have proven to be important for selecting from
among the remedial alternatives. These evaluation criteria serve as the basis for conduct-
ing the detailed analyses during the FS and for subsequently selecting an appropriate site
remedy. The criteria are:
4 Overall protection of human health and the environment
4 Compliance with ARARs
4 Long-term effectiveness and permanence
4 Short-term effectiveness
4 Reduction of toxicity, mobility, or volume
4 Implementability
4 Cost
4 State acceptance
4 Community acceptance.
The detailed analysis process should include an evaluation of each alternative against the
nine criteria. The evaluation criteria are discussed in more detail in Chapter VII, Selection
of Remedy.
The PRPs will submit a technical memorandum summarizing the results of the compara-
tive analysis. In addition, the PRPs must submit a draft FS report to the RPM for review
and approval. This report, as adopted or modified by EPA, provides a basis for remedy
selection. It documents the development and analysis of remedial alternatives. Once
EPA's comments have been incorporated to the RPM's satisfaction, the final FS report
may be bound with the final RI report.
Following the PRP's completion of the RI/FS report and the RPM's confirmation that
there is sufficient information to support the selection of a preferred alternative, EPA
begins the process of remedy selection which is discussed in Chapter VII, Selection of
Remedy.
RI/FS lmplementation-13
-------
Section III. Planning and Reporting Requirements
A.
SCAP/STARS
The RPM must review and update the information in EPA's automated data systems as
events happen. That is, events should be tracked in the data base on a real time basis.
Depending on the Region, RPMs are responsible for entering accurate information into
CERCLIS/WasteLAN or providing that information to the IMC for entry into CERCLIS/
WasteLAN. For example, activities such as RI/FS starts, field work starts, and draft RI/FS
completions must be entered into CERCLIS/WasteLAN. RI/FS events are tracked in
SCAP/STARS. A matrix of SCAP/STARS Targets relevant to RI/FS implementation is
presented as Exhibit VI-4.
Exhibit VI-4
SCAP/STARS Targets for RI/FS
Activity
Remedial Investigation/
Feasibility Study
First RI/FS Start
Subsequent RI/FS Start
Start of Public Comment
(RI/FS to Public)
RI/FS Comp (ROD) (S/C-2)
First RI/FS Comp. (ROD)
Subsequent RI/FS Comp.
(ROD)
STARS
Target
X
X
SCAP
Target/
Measure
X
X
X
X
X
Quarterly
Target
X
X
X
X
X
X
Annual
Target
X
X
X
X
X
X
Definitions for:
RI/FS Start-First and Subsequent - In order for the RI/FS to be counted as a first
start, it must not have had previous RI/FS activity at the site, a prior CERCLA
settlement or prior Fund obligation for Remedial Investigation (RI), Feasibility
Study (FS), or combined RI/FS. Fund-financed and PRP RI/FS are counted in the
STARS target S/C-4, Number of Sites Where Activity has Started, First NPL
Removal Actions and RI/FS, if it is the first action taken once the site is listed.
Obligation of funds for forward planning, community relations and/or other
support activities do not constitute an RI/FS start. A subsequent RI/FS is any RI/
FS that starts after the first one. The definition of accomplishment for an RI/FS
start depends on the lead.
Fund Financed - (Includes F and S lead events) A Fund RI/FS start is counted
when funds are obligated. Funds are obligated when:
+ The contract modification for the RI/FS has been signed by the Contracting
Officer (CO)
* An IAG has been signed by the other Federal agency (U.S. Army Corps of
Engineers (USAGE) or Bureau of Reclamation (BUREC)
* Obligations have been recorded or documented in WasteLAN.
14-RIlFS Implementation
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PRP Financed • (Includes RP, MR, and PS lead events) A Responsible Party (RP
or MR) lead RI/FS start counts when one of the following enforcement actions
occurs:
* An AOC is signed by the Regional Administrator. The RI/FS start date is the
AOC completion date (Regional Administrator signature date)
* A CD is referred by the Region to DOJ or HQ. The RI/FS start date is the last
signature date by the appropriate official or party (Regional Administrator,
DOJ, or HQ).
A PS lead RI/FS start counts when a State order or comparable enforcement
document is signed by the last appropriate official or party and the site is covered
by:
* A state enforcement CA
* A Superfund Memorandum of Agreement (SMOA) containing a schedule for
RI/FS work at the site
* Another State/EPA agreement.
If a subsequent RI/FS is initiated without a new or amended AOC, CD, State
order, or other comparable State enforcement document, the start date for the RI/
FS is defined as EPA's or the State's approval of the work plan for the subsequent
RI/FS.
If an AOC, a State order, or other comparable State enforcement document is
amended for the subsequent RI/FS, the start date is the date the last official signs
the amendment. If an EPA CD is amended, the start date is the last signature date
by the appropriate official or party.
Federal Facility - The RI/FS first start date should coincide with the IAG effec-
tive date, however, for sites where RI/FS work starts prior to the IAG effective
date, the earliest date reportable is the IAG completion date. For sites where RI/FS
work is initiated under a Resource Conservation and Recovery Act (RCRA) order
or permit, the RI/FS first start date should equal the date when the RCRA order or
permit becomes effective.
Subsequent RI/FS starts count on the date of receipt of the work plan which
addresses the subsequent RI/FS. For cases where the subsequent RI/FS is de-
scribed in the same work plan as the first RI/FS start, the subsequent RI/FS start is
the date of the RI/FS first start (which is generally the IAG effective date or IAG
completion date, whichever is earlier).
In rare cases, with HQ approval, when the RI/FS has been initiated prior to the
IAG completion date and there has been extensive Regional involvement with the
facility, the RI/FS first or subsequent start date can be the receipt of the RI/FS
workplan.
EPA-In House (EP) Lead - An EP lead RI/FS counts when the Region begins
preparation of the workplans following the initial scoping meeting.
First Fund or PRP RI/FS start or first Fund or PRP NPL removal start is a target under
STARS S/C4, Number of Sites Where Activity Has Started, however, Regions cannot
receive credit for a site if an RI/FS or NPL removal began or was conducted at the site in a
previous year. Regions also cannot receive credit under STARS for both an RI/FS start
and an NPL removal if they are started in the same year. Credit is given for the first
activity started and a site can receive credit only once. Therefore, historical data must be
reviewed prior to negotiating commitments and reporting accomplishments in STARS.
Regions can receive credit for both individual events in SCAP.
RI/FS Impleme.ntation-15
-------
Separate Fund-financed, RP-lead and Federal Facility RI/FS start targets will be estab-
lished in SCAP prior to the FY. Targets are established site specifically. For first RI/FS
starts, "to be determined (TBD)" sites are allowed.
RI/FS To Public - The RI/FS is released to the public when the contamination at
the site has been characterized and alternatives for remediation have been evalu-
ated. An RI/FS to public is accomplished the date the proposed plan is made
available to the public. This date must be recorded in WasteLAN (C3101) with the
RI/FS event under subevent code "CF". Accomplishments are based on the first
proposed plan released to the public for each RI/FS regardless of lead. This is a
SCAP reporting measure.
Remedies Selected (ROD)-First and subsequent - A remedy is selected at the
completion of the RI/FS. Upon completion of the public comment period on a
Fund-financed or RP-lead RI/FS, a ROD which identifies the Agency's selected
remedy for a site or phase of site cleanup is signed by the Assistant Administrator
for the Office of Solid Waste and Emergency Response (AA SWER) or the
Regional Administrator/Deputy Regional Administrator.
For F, FE, and SE lead ROD - credit is given on the date the ROD is signed by
the Regional Administrator/Deputy Regional Administrator or the AA SWER.
Upon completion of a Federal Facility RI/FS, the Federal agency selects a remedy for the
site that is presented in a cleanup decision document (i.e., ROD, Corrective Action Deci-
sion Document). This document is concurred upon or approved by either the AA for the
Office of Enforcement (OE) or the Regional Administrator/Deputy Regional Administra-
tor.
For Federal Facilities - credit is given on the date of EPA approval/concurrence
on the clean-up decision document pursuant to an IAG or other enforceable
decision document, or the date of EPA's Letter of Concurrence.
The RI/FS completion date and the ROD completion date are the same. This date must be
entered in WasteLAN as both the RI/FS and ROD completions.
OERR/OPM is currently developing coding guidance for events (RI/FS, ROD, RD/RA).
16-RI/FS Implementation
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Section IV. Potential Problems/Resolutions
During the course of a PRP-conducted RI/FS, the PRP may encounter problems, or the
RPM may identify unsatisfactory or deficient PRP performance. This section discusses
some possible solutions to the problems commonly encountered by RPMs overseeing
PRP-conducted RI/FSs.
A.
Dispute
Resolution
When disputes arise between the RPM and the PRPs' project manager, the RPM should
attempt to informally resolve the matter. If informal efforts fail, the RPM should imple-
ment formal dispute resolution mechanisms after consultation with the site attorney.
The AO usually will set forth the formal dispute resolution procedures. This process is
generally initiated by a written notice of disapproval by an appropriate manager within the
Agency. Generally, the PRP must reach a negotiated agreement within 14 days of receiv-
ing the notice. For cases in which the negotiations fail, EPA will prepare a written record
of the negotiation's outcome. Often the order is structured to require the PRP to appeal or
do the work. This decision can be appealed to the Division Director, who is the final
arbitrator of the dispute. If the PRP fails to comply with the decision, the Agency may
take the following action:
4 Seek stipulated and statutory penalties
4 Take over the RI/FS and subsequently recover costs
4 Take other action (e.g., court order to comply)
The RPM should work closely with Regional management and ORC to coordinate dispute
resolution efforts.
B.
Corrective
Measures
If oversight investigations discover that the PRP, or its contractor, is performing field and
laboratory activities in a manner inconsistent with the Work Plan or SAP, the RPM may
need to implement corrective measures. For the most part, informal dispute resolution
procedures should be sufficient to remedy the problem. The RPM can initiate this process
by first talking with the PRP's designated technical coordinator. If this approach does not
correct the problem, the RPM should then use the more formal approach of issuing a
notice of deficiency.
To issue a notice of deficiency, RPMs should:
4 Notify the PRPs in writing
4 Describe the nature of the deficiency
4 Request that the PRP undertake appropriate corrective action within a specific period.
Failure to respond to the deficiency notice could lead to penalties or EPA takeover.
RI/FS Implementation-17
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Section V. References
Regulation C.F.R. 40 "National Oil and Hazardous Substances Pollution Contingency Plan" (March
8, 1990).
OSHA Regulations, 29 C.F.R. section 1910.130 (45654 Fed. Reg., Dec. 19, 1986).
Directive 9335.3-01, "Guidance for Conducting Remedial Investigations and
Feasibility Studies under CERCLA" (October 1988).
OSWER Directive 9835. l(c) and (d), "Guidance on Oversight of Potentially Responsible
Party Remedial Investigations and Feasibility Studies," Volumes 1 and 2 (July 1991).
OSWER Directive 9835.15, "Performance of Risk Assessments in RI/FSs Conducted by
Potentially Responsible Parties" (August 28, 1990).
OSWER Directive 9835. 15a, "Supplemental Guidance on Performing Risk Assessments in
RI/FSs Conducted by PRPs" (July 2, 1991).
OSWER Directive 9835.3-01A, "Interim Guidance on Potentially Responsible Party
Participation in Remedial Investigations and Feasibility Studies" (May 1988).
OSWER Directive 9833.3-A1, "Final Guidance on Administrative Records for Selection
of CERCLA Response Actions" (December 3, 1990).
OSWER Directive 9285.4-00, "Guidance for Conducting ATSDR Health Assessment
Activities with the Superfund Remedial Process" (April 1987).
OSWER Directive 9335.0-7B, "Data Quality Objectives for Remedial Response Activi-
ties" (March 1987).
OSWER Directive 9836.0-1 A, "Community Relations During Enforcement Activities and
Development of the Administrative Record" (November 1988).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing Superfund Decision
Documents: The Proposed Plan, Record of Decision, Explanation of Significant Differ-
ences and the ROD Amendment" (July 1989).
OSWER Directive 9335.0-14, "A Compendium of Superfund Field Operation Methods"
(September 1987).
OSWER Directive 9835.8 , "RI/FS Model Statement of Work" (June 2, 1989).
OWPE, "Draft TES User Guide" (June 1987).
USEPA, "The User's Guide to the Contract Laboratory Program" (August 1982).
USEPA, "Selected Technical Guidance for Superfund Projects" (December 1988). This
pamphlet is reproduced on the following pages.
Manuals OSWER Directive 9285.7-01 A, Human Health Evaluation Manual: Volume I (December
1989).
OSWER Directive 9285.7-01B, Human Health Evaluation Manual, Part B: Development
of Risk-based Preliminary Remediation Goals (December 13, 1991).
OSWER Directive 9285.7-01C, Human Health Evaluation Manual, Part C: Risk Evalua-
tion of Remedial Alternatives (December 13, 1991).
OSWER Directive 9285.7-01, Risk Assessment Guidance for Superfund - Environmental
Evaluation Manual, Volume 2, (March 1989).
OSWER Directive 9285.5-1 A, Superfund Exposure Assessment Manual (April 1989).
18-RI/FS Implementation
-------
OSWER Directive 9234.1-01 and -02, CERCLA Compliance with Other Laws Manual
(August 1988).
OSWER Directive 9230.0-3B, Community Relations in Superfund: A Handbook (June
1988).
US EPA, NEIC Policies and Procedures Manual (revised November 1984).
Short Sheets OSWER Directive 9355.3-01 FS1, "Getting Ready: Scoping the RI/FS" (November
1989). [Fund-lead RI/FS]
OSWER Directive 9355.3-01 FS2, "The Remedial Investigation — Site Characterization
and Treatability Studies" (November 1989). [Fund-lead RI/FS]
OSWER Directive 9355.3-01 FS3, "Development and Screening of Remedial Action
Alternatives" (November 1989).
Training OSWER's Technology Innovation office conducts training on the RI/FS process as part of
the CERCLA Education Center. For information, contact 703-308-8800.
OERR/OWPE conducts periodic training on the RI/FS process.
Contacts Re§i°nal Toxics Integration Coordinator
Regional Biological Technical Assistance Groups (BTAGs)
OWPE, CERCLA Enforcement Division, Compliance Branch, at 703-603-8910.
OWPE, CERCLA Enforcement Division, Guidance and Evaluation Branch, at
703-603-8940.
OERR, Hazardous Site Control Division, at 703-603-8800.
RI/FS Implemenlation-19
-------
Section VI. Activities Checklist
This checklist is not intended to present an exhaustive set of procedures. RPMs should
exercise their professional discretion when deciding what procedures are appropriate for a
particular site.
Preparation and Management
1) If not previously done, identify the preliminary scope of RI/FS activity
for the site. Establish site-specific objectives. Develop a general man-
agement strategy for site activity.
a) Ensure appropriate ESD and management review of
scoping.
2) Organize regional team and specialists as needed (e.g., hydrogeologist,
human risk specialist, ecological risk specialist, and remedial engineer).
3) Procure the services of qualified oversight assistant(s).
4) Coordinate interagency and intergovernmental responsibilities, including
those of the State, ATSDR, and Natural Resource Trustees.
5) Ensure budgetary support in SCAP.
6) Assess the PRPs' ability to conduct the RI/FS (financial, technical
managerial).
Community Relations Plan
7) Develop a community relations plan and define the PRPs' participation (if
any).
Project Planning
8) Ensure that PRPs have collected and considered available data.
9) Conduct an initiation meeting and site visit with the PRPs.
10) Prior to the PRP's development of a work plan, sampling and analysis
plan, and site health and safety plan, meet with PRPs, and, as appropriate,
ESD and oversight assistant, to assure that PRPs understand:
a) The objectives of SARA and, for the site, preliminary
remedial action objectives and alternatives
b) The need for treatability studies
c) The RI/FS guidance and other guidances
d) What to include in the plans
e) The roles and responsibilities
11) Review the work plan, with in-house (e.g., ESD and WMD specialists)
and contractor support.
a) Background information
b) Objectives, preliminary conceptual model
c) Management plan, including general strategy, activity
schedules, advance notice to EPA of field activities,
reporting and meeting schedules (including data report-
ing), deliverables schedules, equipment and personnel,
data management
20-RI/FS Implementation
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d) Site characterization
- Field support; preparation
- Physical characteristics (e.g., geology; hydrology);
sources of contamination; nature and extent of
contamination; information to be gathered; methods
of gathering information; extent of field investigation
and how it is determined (include off-site for hydrol-
ogy, extent of contamination, etc.); sufficiency for
multiple purposes (e.g., extent, fate and transport,
risk, treatability, delineation of remedial alternative;
methods of data analysis; information produced and
format)
- Assure adequate off-site work (e.g., for hydrological
setting, pathways)
- Supplemental field work
- Site characterization report requirements, data
presentation
e) Risk assessment (only for agreements predating June
1990)
- Federal and State ARARs (approach, primarily to
contaminant specific and location specific)
- Human health
- Approach to contaminant identification; exposure
assessment, use of SEAM, use of current and maxi-
mum reasonable use scenario assuming growth;
exposure points with path-ways, media, exposure
route, persons exposed and amount exposed to, fate
and transport models; use of IRIS and other data on
toxicity; risk characterization; deliverables in final
report
- Environmental evaluation
- Plan, implementation, deliverables, report
f) RI report
- Content, form, review, response to EPA's comments,
approval
g) Treatability studies
- Schedule early start
- Candidate technologies, approach to determining
need for testing
- Work plan contents
- Implementation
- Evaluation report
h) Development and Screening of Alternatives
- Development review/approval of remedial action
objectives; contaminant specific ARARs
- Approach to developing and refining alternatives
- Approach to screening
RHFS Implementation-21
-------
- Methodology for developing and incorporating action
specific ARARs
- Deliverables, including alternatives array document
- Review/approval
i) Detailed analysis
- Nine criteria and comparative analysis
- Report on comparative analysis and presentation
- Response to EPA's comments
j) FS Report
- Content, form, review, response to EPA's comments
Review the sampling and analysis plan
a) FSP
- Site background (including an evaluation of existing
data)
- Sampling objectives
- Data quality objectives
- Sample media
- Sampling locations and rationale
- Sampling frequency and rationale
- Number of samples and justification
- Number of field blanks, trip blanks, and duplicates
- Sampling equipment
- Sampling procedures and rationale
- Sampling handling (including chain-of-custody
procedures)
- Field analytical procedures
- Decontamination procedures
- Sample designation
- Laboratory analytical procedures, equipment, and
detection limits
- Systematic requirements to fully delineate each
source and the nature and extent of contamination to
DQO levels.
b) QAPP
DQOs for measurements - Ensure that soils, ground
water measured to levels consistent with risk range in
NCP
- Sampling procedures
- Sample custody procedures
- Calibration procedures and frequency
- Analytical procedures
- Data reduction, validation, and reporting procedures
- Internal quality control checks and frequency
- Performance and systems audits and frequency
22-RI/FS Implementation
-------
- Preventative maintenance procedures and schedules
- Data assessment procedures
- Corrective action procedures
- Quality assurance reporting procedures.
13) Receive the health and safety plan
14) Draft comments; changes to PRP's plans
15) Coordinate with State, trustees as necessary
16) Management review of project plans
17) Approve/modify plans
18) Refine oversight plan
* Address what is to be done, when, by whom
* Assure oversight persons are informed of their duties and of schedules
* Budget resources
+ Ensure other communications; (e.g., State, ATSDR, trustee)
* Anticipate common problems
19) Open Administrative Record at Region and near site; add approved plans
20) Community relations activities upon approval of plans
Oversee RI Field Work and Data Analyses
21) Meeting of EPA team members, specialists, QA/QC person and oversight
assistant to review work, schedules, roles and responsibilities
22) Meet with PRPs' contractor to ensure that they understand work plan;
requirements for notice to EPA; field methodology; QA/QC at site and in
lab (methods, detection limit, etc.)
23) Review PRP's field support preparation and resources
24) Develop field check lists
25) Site characterization, source definition, description of nature and extent
of contamination. On an on-going basis:
a) Assure compliance with work plan and sampling and
analysis plan
b) Oversee schedule, ensure advance notice by PRP of
field work, schedule site inspections, have oversight
assistant review data as developed by PRP for suffi-
ciency, QA/QC trends
c) Assure adequate locations, types, depths, numbers, etc.
of samples
d) For on-going fieldwork, check quality of methods,
sampling, testing, ensure sample splits, spikes, blanks,
etc. QA/QC of loss/analyses - ensure use of proper
protocols; lab audit, compare splits, etc.
- Geology, physiography
- Ground water monitoring well construction/installation
- Ground water elevations and pump tests in various
strata
R1IFS lmplementation-23
-------
- Soil sampling (surface/at depths)
- Ground water sampling
- Surface water sampling
- Sediment sampling
e) Well and other receptor surveys
f) Review field books, activity logs, etc.
g) Review progress reports
h) Review data management
i) Hold progress status meetings
j) Assess whether the data incrementally collected are
sufficient for all purposes (site characterization, source
definition, nature and extent of contamination, fate and
transport, treatability, remedial alternatives (e.g.,
bedrock groundwater remediation)
k) Based on available data, direct collection of additional
data (e.g., source contamination to background, extent of
plume to background)
26) Ensure appropriate data provided to ATSDR, State, Trustees
27) Review and comment on site characterization summary. Assure proper
and accurate data presentation
28) Update Administrative Record
29) Ensure adequate oversight activity documentation (cost documentation)
30) Identify interim actions as necessary
Perform Risk Assessment (EPA only for AOCs signed after June 21,1990)
31) Secure qualified contractor
32) Identify any highly controversial substances that warrant HQ assistance
33) Identify Federal and State Contaminant Specific ARAR
34) Human health risk assessment/endangerment assessment
a) Review contaminant identification/indicator chemicals
memorandum
b) Review exposure assessment (exposure scenarios,
exposure assumptions, population at risk, fate and
transport model, etc.)
c) Review toxicity assessment (sources, application)
d) Review human health risk characterization
35) Environmental Evaluation
a) Review environmental evaluation plan: discuss with
Trustees
b) Review environmental evaluation report, discuss with
Trustees
36) Obtain/review ATSDR health assessment; State views
37) Ensure appropriate EPA management review
38) Comment on/finalize risk assessment
a) Gather additional data, as needed
24-RllFS Implementation
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Remedial Investigation Report
39) Copy to State, Trustees, ATSDR, as appropriate
40) Develop preliminary comments
41) Ensure appropriate EPA managerial review
42) Final comments
43) Review and modify/approve interim RI report (possible additional work
may be identified in FS)
44) Update Administrative Record
45) Fact sheets, public meetings as necessary
Treatabitity Testing
46) Identify the need for treatability testing. If testing is done:
a) Obtain specialized support, as necessary
b) Discuss requirements with PRPs
c) Review/modify/approve proposal on need for literature
search vs. testing
d) Review PRPs' work plan/SAP
e) Review PRPs' report
f) Require, if necessary, additional testing
Development and Screening of Alternatives
47) Meet with PRPs to discuss remedial action objectives; alternative devel-
opment and screening; detailed analysis; SARA - compliant remedies
48) Review, modify, and possibly approve remedial action objectives submit-
ted by PRPs
49) Review work/report by PRPs, identifying potential technologies for areas
of media, evaluation of process types
50) Review range of alternatives developed by PRPs; focus on effective
remedies, preference for treatment
51) Advise State of alternatives
52) Review the document submitted by PRPs on alternatives passing the
screen, including alternatives array summary with associated ARARs and
description of underlying work
53) Confer with State
54) Submit comments, ensuring appropriate alternatives passed the screen
and the proper identification of ARARs, particularly action-specific
ARARs. If PRPs continue to lean improperly toward no-action, non-
effective low-cost remedies, schedule a meeting. Consider enforcement
and EPA takeover
55) Finalize approved identification of acceptable group of remedies that
should be considered in the detailed analysis
56) Assure updated Administrative Record
RIIFS lmplementation-25
-------
57) Review the comparative analysis document prepared by PRPs (unless
EPA reserved this)
58) Assure that, to the extent possible, State, Trustees' views are known
Detailed Analysis
59) Meet with PRPs
60) Provide comments, direction to PRPs for FS
61) Ensure updated Administrative Record
Feasibility Study
62) Circulate PRP draft FS to State, Trustees, intra-EPA groups
63) Develop preliminary comments
64) Ensure internal EPA and management review, discuss proposed plan
65) Finalize comments
66) Ensure development of an FS that supports proposed plan
67) Update Administrative Record
68) Oversight/response cost billing
69) Preparation for RD/RA negotiations.
26-R1IFS Implementation
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Appendix A-1
RI/FS Scoping Following AO
Key: CD ACTIVITY
O DECISION NODE
Q DOCUMENT
IDENTIFY POTENTIAL TECHNOLOGIES AND FEASIBLE ALTERNATIVES
PRP
REMEDIAL
RESPONSE
ACTIVITIES
RPM
OVERSIGHT
ACTIVITIES
AND
SCOPING
ACTlVmES
DEVELOP DRAFT RI/FS PROJECT PLANS:
• Work Plan
• Sampling and Analysis Plan
- Field Sampling Plan
- Quality Assurance Project Plan
• Health and Safety Plan
PRELIMINARY PLANNING
• Refine conceptual model with
potential risks and possible remedies
• Evaluate need for treatability studies
• Preliminarily identify ARARs
INITIAL
PROJECT &
OVERSIGHT
SCOPE DEFINED
INAO
STATE
ATSDR
HEALTH
ASSESSMENT
ACTIVITIES
NATURAL
RESOURCE
TRUSTEE
EPA
COMMUNITY
RELATIONS
ACTIVITIES
REVIEW
DRAFT RI/FS PROJECT
PLANS AN DCRP
SUBMIT DATA
REQUIREMENTS FOR
HEALTH ASSESSMENT
CONDUCT PRELIMINARY
NATURAL RESOURCES SURVEYS
COLLECT COMMUNITY
RELATIONS DATA
RI/FS
PROJECT
PLANS:
• Work Plan
•SAP:
FSP
QAPP
• Health &
Safety Plan
INPUT AS
APPROPRIATE ON
PROJECT PLANS
DEVELOP COMMUNITY
RELATIONS PLAN
RPM FINAL REVIEW AND
APPROVAL OF RI/FS
PROJECT PLANS AND CRP
NOTE: RPMs Do Not Approve
the PRP's Health and Safety
Plans
(to
Appendix
"A-2)
-------
Appendix A-2
Rl: Site Characterization, Baseline Risk Assessment, and Rl Report
Key: I I ACTIVITY
Q DECISION NODE
fj DOCUMENT
PRP
REMEDIAL
RESPONSE
ACTIVITIES
STATE
IDENTIFY POTENTIAL TECHNOLOGIES AND FEASIBLE ALTERNATIVES
CONDUCT AND DOCUMENT
FIELD INVESTIGATION
• Investigate site physical
characteristics
«Define contarrination sources
• Define nature and extent of
contamination
CONDUCT TREATABILITY TESTING IF NECESSARY (See Exhibit A-3)
REVIEW MONTHLY PROGRESS REPORTS
CONDUCT MONTHLY MEETINGS
PROVIDE PRELIMINARY CONTAMINANT-
SPECIFIC ARARs
ATSDR
PUBLIC HEALTH ASSESSMENT
EPA
COMMUNITY
RELATIONS
ACTIVITIES
RPMs MAY EXERCISE DISCRETION
AND ALLOW PRPs TO PARTICIPATE IN COMMUNITY
RELATIONS ACTIVITIES
BY PREPARING FACT SHEETS AND
PARTICIPATING IN PUBLIC MEETINGS
DEVELOP FACT SHEET
ON DRAFT Rl
REPORT
On-going update of Administrative Record
-------
Appendix A-3
Treatability Investigations
Key:
O ACTIVITY
O DECISION NODE
DOCUMENT
PRP
REMEDIAL
RESPONSE
ACTIVITIES
RPM
OVERSIGHT
ACTIVITIES
EPA
COMMUNITY
RELATIONS
ACTIVITIES
PRELIMINARY
DETERMINATION OF
CANDIDATE
TECHNOLOGIES
AND NEED FOR
TESTING
(SCOPING)
1 F
REVIEW
AND —
APPROVE
CONDUCT
^ LITERATURE
SURVEY
/TREA
/ ITYTE
\ Df
\NEE
n
• PREPARE 1
TREATABILITY |
TESTING WORK f
PI AW OR AMPMH T fc CONDUCT TESTING
ORIGINAL
• PREPARE TREAT-
ABILITY STUDY
SAP, OR AMEND
.Yes
S \
TABIL\ Mn
STINnN N°
iTA /
DEDV'
/
^ r ?
REVIEW
REVIEW
AND
APPROVE
D- REVIEW MONTHLY PROGRESS REPORTS AND INTERIM DELIVERABLES
• CONDUCT MONTHLY MEETING WITH PRPs
• CONDUCT FIELD INSPECTIONS, QA/QC SAMPLES, and LABORATORY AUDITS (When Ap
RPMs MAY EXERCISE DISCRETION
AND ALLOW PRPs TO PARTICIPATE
IN COMMUNITY RELATIONS ACTIVITIES
XK
/ MORE XYes
/ DATA X
X NEEDED? /
No y^
TREATABILITY STUDY EVALUATION I
REPORT m
^"T""1
y
REVIEW
AND
APPROVE
iropriate)
-------
Appendix A-4
Feasibility Study: Development and Screening of Alternatives
KEY:
DOCUMENT
I—I ACTIVITY
DECISION NODE
PRP
REMEDIAL
RESPONSE
ACTIVITIES
REVIEW/REFINE
REMEDIAL ACTION
OBJECTIVES AND
SUBMIT TO EPA
IDENTIFY POTENTIAL
TECHNOLOGIES FOR
AREAS OF MEDIA,
EVALUATE PROCESS
OPTIONS AND SELECT
PROCESS TYPE FOR EACH
TECHNOLOGY; DEVELOP
TECHNICAL MEMORANDUM
ASSEMBLE RANGE
OF ALTERNATIVES (NO ACTION -
CONTAINMENT - TREATMENT)
PREPARE MEMORANDUM
SCREEN
ALTERNATIVES, IF
NECESSARY,
ACCORDING TO:
• Effectiveness
• Imptementability
• Relative Cost
PREPARE
SCREENING
MEMORANDUM
WITH ALTERNATIVES
ARRAY SUMMARY
MODIFY SCREENING DOCUMENT/
ALTERNATIVES ARRAY SUMMARY
WITH ARARs TO MEET EPA's
COMMENTS. SEND TO STATE
AND TRUSTEES.
RPM
OVERSIGHT
ACTIVITIES *
REVIEW AND SUBMIT
COMMENTS
STATE
REVIEW
REVIEW RANGE OF
ALTERNATIVES AND
SEND TO STATE
• REVIEW MONTHLY PROGRESS REPORTS AND INTERIM
• CONDUCT MONTHLY MEETING WITH PRPs
DELIVERABLES (H necessary)
NATURAL
RESOURCES
TRUSTEES
EPA
COMMUNITY
RELATIONS
ACTIVITIES
RPMs MAY EXERCISE DISCRETION
AND ALLOW PRPs TO PARTICIPATE
M COMMUNITY RELATIONS ACTIVITIES
DEVELOP FACT SHEET ON
PROGRESS
OF ALTERNATIVE
DEVELOPMENT
* On-going Update of Administrative Record
-------
Appendix A-5
Feasibility Study: Detailed Analysis of Alternatives and FS Report
Key:
DOCUMENT
ACTIVITY
DECISION NODE
PRP
REMEDIAL
RESPONSE
ACTIVITIES
RPM
OVERSIGHT
ACTIVITIES *
EPA
COMMUNITY
RELATIONS
ACTIVITIES
ANALYZE EACH
ALTERNATIVE
AGAINST NINE
EVALUATION CRITERIA
I
PRP'S DRAFT
FEASIBILITY
STUDY
PERFORM COMPARATIVE
ANALYSIS OF
ALTERNATIVES AGAINST
EVALUATION CRITERIA
I
T
DEVELOP
SUMMARY
OF COMPARATIVE
ANALYSIS
REVISE FS PER
EPA COMMENTS
(IF DIRECTED)
REVIEW ANALYSIS OF ALTERNATIVES;
MEET AND PROVIDE INPUT
_L
REVIEW DRAFT FS AND
REWRITE AS
NECESSARY
DRAFT FEASIBILITY
STUDY REPORT
To public comment
with proposed plan
DEVELOP FACT
SHEET & HOLD PUBLIC
MEETING ON
DRAFT FS
On-going update of Administrative Record
-------
VII. SELECTION OF
REMEDY
-------
Chapter VII
Selection of Remedy
Section I. Description of Activity 1
Introduction 1
Overview 1
Statutory Authority 1
Responsibilities 2
Evaluation Criteria for Comparing Alternatives 2
Threshold Criteria 2
Primary Balancing Criteria 3
Modifying Criteria 3
ROD Delegation, Consultations, and Briefings 4
Section II. Procedures and Interactions 5
A. Review of RI/FS ....5
B. Preparation of Proposed Plan 5
Format of Proposed Plan 5
Contents of Proposed Plan 5
C. State/Federal and Public Input on Preferred Alternative 6
D. Finalization of Proposed Plan 7
E. Public Input on Remedial Alternatives 7
Public Notice 7
Public Meeting 7
Public Comment Period 7
Administrative Record 7
PRP Participation 8
F. Special Notice To PRPs 8
Required Notifications 8
G. Final Selection of Preferred Alternative 8
H. Prepare Draft ROD 8
Components of Record of Dedsion 9
Declaration 9
Decision Summary 9
Responsiveness Summary 9
Changes from the Proposed Plan to the ROD 10
Unanticipated Changes 10
I. State/Federal Consultation on Selected Remedy 10
Concurrence 10
Selection ofRemedy-i
-------
J. Briefing and Signature 11
K. Notice 11
L Post-ROD Changes 11
Section III. Planning and Reporting Requirements 12
A. Reporting Requirements 12
Submission of Documents 12
Information Databases 12
Implications of Submissions 12
SCAP/STARS 12
B. Planning Requirements 12
Contractor Participation 12
Section IV. Potential Problems/Resolutions 13
A. Inconsistent PRP Alternative 13
B. Extensive Public Comment 13
C. Disputes over ROD 13
Section V. References 14
Policy 14
Guidance 14
Manuals 14
Guides 14
Training 16
Contacts 16
Section VI. Activities Checklist 18
ii-Seleclion of Remedy
-------
Chapter VII
Selection of Remedy
Section I. Description of Activity
Introduction This chapter provides a general discourse on the process used by Federal agencies to select
a final remedial action from among the options that undergo detailed analysis in the RI/FS.
See Exhibit VII-1 for a graphic representation of the elements that comprise the remedy
selection process. For more detailed information on the remedy selection process, consult
the National Oil and Hazardous Substance Pollution Contingency Plan (NCP), "Guidance
on Preparing Superfund Decision Documents" and other documents referenced at the end
of this chapter.
Overview The Agency has established the remedy selection process to fulfill the mandates of section
121 of CERCLA. Substantively, the remedy selection process involves the following: 1)
an objective assessment of alternative approaches for remediating problems at sites with
respect to nine evaluation criteria that encompass statutory requirements, and 2) a risk
management decision as to which option provides the most appropriate solution for a site
or site problem. Procedurally, the selection of a CERCLA remedial action from among
alternatives is a two-step process. First, the lead agency, in conjunction with the support
agency, reviews the analysis in the RI/FS and Administrative Record to identify a pre-
ferred alternative that is presented to the public in a proposed plan (along with the support-
ing information and analysis) for review and comment. Second, the lead agency reviews
the public comments, consults with the support agency in order to evaluate whether the
preferred alternative is still the most appropriate remedial action for the site or site prob-
lem, and makes a decision. EPA is the ultimate decisionmaker in selecting a remedy under
CERCLA.
Statutory Authority Section 121 of CERCLA requires that the chosen remedy meet certain standards. The lead
agency must select a remedy that:
* Is protective of human health and the environment
* Attains legally Applicable or Relevant and Appropriate Requirements (ARARs), or
provides grounds for invoking a waiver of ARARs
* Is cost-effective
* Utilizes permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable
* Addresses the preference for remedies that employ treatment that permanently and
significantly reduces the volume, toxicity, or mobility of the hazardous substances,
pollutants, and contaminants as a principal element.
Section 121 of CERCLA requires that Superfund remedies be consistent with the require-
ments of the National Contingency Plan (NCP). The NCP specifies the nine evaluation
criteria used to compare remedial alternatives.
CERCLA also establishes procedures for the remedy selection process. The remedy
selection process must include the opportunity for substantial and meaningful involvement
of State officials. The Agency must comply with public participation requirements by
allowing the public to comment and submit information on the remedy for inclusion in the
Selection of Remedy-]
-------
Administrative Record (see sections 113(k), 117, and 121(f) of CERCLA). The Agency
must document its decision in an Administrative Record and make the record accessible to
the public. EPA must notify PRPs, State personnel, and Natural Resource Trustees about
negotiations for implementation of the remedy.
Responsibilities Federal and State agencies conduct remedy selection activities as a cooperative effort.
Section 121 (a) of CERCLA states that the President (EPA) shall select appropriate reme-
dial actions. EPA and the State agencies decide on a case-by-case basis which agency will
become the lead agency. In some States, an agreement between the agencies, such as a
Superfund Memorandum of Agreement (SMOA) or Cooperative Agreement (C A), embod-
ies this decision. (For more information on the EPA/State partnership, see Chapter XIV,
State Enforcement), hi addition to designating itself or another agency as the lead agency
for a site, EPA generally delegates lead responsibilities from Headquarters to the Regions.
Regardless of whether the State is designated the lead agency, EPA is always responsible
for deciding the remedy and signing the ROD.
In general, the remedy selection process is the sole responsibility of the agencies involved.
However, contractors and potentially responsible parties may participate in particular
aspects of the process.
Evaluation Criteria for
Comparing Alternatives
EPA has structured a risk management decision-making process designed to satisfy the
numerous requirements of CERCLA. This process involves the assessment of alternative
hazardous waste management approaches and a comparison of these approaches using nine
evaluation criteria. A remedy is selected by balancing the trade-offs between alternatives
to identify the most appropriate protective solution which meets (or waives) ARARs for a
given site. The nine evaluation criteria are used to develop the RI/FS detailed analysis, on
which the remedy decision is based. The criteria include:
Threshold Criteria
The two threshold criteria which must be satisfied in order for an alternative to be eligible
for selection are:
• Overall protection of human health and the environment - Protectiveness is the
primary requirement that CERCLA remedial actions must meet. A remedy is
protective if it adequately eliminates, reduces, or controls all current and potential risks
posed through each pathway by the site. A site where, after the remedy is implemented,
hazardous substances remain without engineering or institutional controls must allow
for unrestricted use and unlimited exposure for human and environmental receptors.
For those sites where hazardous substances remain such that unrestricted use and
unlimited exposure is not allowable, engineering controls, institutional controls, or
some combination of the two must be implemented to control exposure and thereby
ensure reliable protection over time. In addition, implementation of a remedy cannot
result in unacceptable short-term risks to, or cross-media impacts on, human health and
the environment.
• Compliance with Applicable or Relevantand Appropriate Requirements (ARARs)
- Compliance with ARARs is one of the statutory requirements for remedy selection.
Alternatives are developed and refined throughout the CERCLA process to ensure
either that they will meet all of their respective ARARs or that there is good rationale
for waiving an ARAR. During the detailed analysis, information on Federal and State
action-specific ARARs will be assembled along with previously identified chemical-
specific and location specific ARARs. Alternatives will be refined to ensure compli-
ance with these requirements or to begin to identify waivers that might be invoked.
2-Selection of Remedy
-------
Exhibit VIM
Selection of Remedy
Overview of Decision-Making Process
STAGE 1:
Selection of
Preferred Alternative
Lead Agency and Support Agency
reviews RI/FS
Lead Agency analyzes alternatives
using the Nine Criteria
Lead Agency Prepares Draft Proposed Plan
identifying Preferred Alternative
States, other Federal Agencies, HQ, and Program
Offices review Proposed Plan
Lead Agency issues final
Proposed Plan for Public Comment
Public provides input on Remedial Alternative
through formal public comment period, advanced
by community relations activities
STAGE 2:
Final Selection of
Remedial Alternative
Lead Agency reevaluates Alternatives on basis
of comments from public and any new information
Lead Agency prepares draft ROD
Lead Agency gives Support Agency
opportunity to concur on selected remedy
Lead Agency finalizes and coordinates
signing of ROD for a remedy acceptable to EPA
J
Lead Agency provides Notice of
Final Remedial Action
-------
Primary Balancing Criteria The five primary balancing criteria used to weigh major trade-offs among the different
hazardous waste management strategies are:
* Long-term effectiveness and permanence - This criterion reflects CERCLA's
emphasis on implementing remedies that will ensure protection of human health and
the environment into the future as well as in the near term. In evaluating alternatives
for the degree of long-term effectiveness and permanence they afford, the analysis
should focus on the residual risks that will remain at the site after the completion of
the remedial action. This analysis should include consideration of the following: the
degree of threat posed by the hazardous substances remaining at the site; the adequacy
of any controls (e.g., engineering and institutional controls) used to manage the
hazardous substances remaining at the site; the reliability of those controls; and the
potential impacts on human health and the environment, should the remedy fail based
on assumptions included in the reasonable maximum exposure scenario. This
evaluation criterion incorporates the statutory requirements to take into account the
following: the uncertainties associated with land disposal; the goals, objectives, and
requirements of RCRA; the persistence, toxicity, mobility, and propensity to
bioaccumulate of the hazardous substances and their constituents; the long-term
potential for adverse health effects from human exposure; long-term maintenance
costs; the potential for future remedial action costs if the remedy were to fail; and the
threats to the environment associated with redisposal or containment of the hazardous
substances.
* Reduction of toxicity, mobility or volume - This criterion addresses the statutory
preference for remedies that employ treatment as a principal element by ensuring that
the relative performance of the different treatment alternatives in reducing toxicity,
mobility, or volume will be assessed. Specifically, the analysis should examine the
magnitude, significance, and irreversibility of reductions.
* Short-term effectiveness - This criterion includes the short-term impacts of the
alternatives (i.e., impacts during implementation) on the neighboring community, the
workers, or the surrounding environment, including the potential threats to human
health and the environment associated with excavation, treatment, and transportation
of hazardous substances. The potential cross-media impacts of the remedy and the
time to achieve protection of human health and the environment also should be
analyzed.
* Implementability - Implementability considerations include the technical and ad-
ministrative feasibility of the alternatives and the availability of the goods and services
(e.g., treatment, storage, or disposal capacity) on which the viability of the alternative
depends. Implementability considerations often affect the timing of various remedial
alternatives (e.g., limitations on the season in which the remedy can be implemented,
the number and the complexity of materials-handling steps that must be followed, the
need to obtain permits for off-site activities, and the need to secure technical services
such as well drilling and excavation).
* Cost - Cost encompasses all construction and operation and maintenance costs
incurred over the life of the project. Present worth of these costs are considered. EPA
believes that the discount rate is an aspect of developing a realistic accounting of the
future costs of remedial alternatives and an accurate comparison of the total costs, and
the cost-effectiveness, of treatment and non-treatment remedies.
Modifying Criteria After the above criteria have been evaluated and public comment is received, the two
modifying criteria are taken into account. They are:
* State acceptance - This criterion, which is an on-going concern throughout the
remedial process, reflects the statutory requirement to provide for substantial and
meaningful State involvement. Communication with the State throughout the RI/FS
Selection ofRemedy-3
-------
will help to avoid problems at the time of the proposed plan or ROD. State comments
may be addressed during the development of the FS, as appropriate, although formal
State comments usually will not be received until after the State has reviewed the draft
RI/FS and the draft proposed plan prior to the public comment period. The proposed
plan that is issued for public comment along with the RI/FS report should indicate
either that the State has commented on or concurred with EPA's preferred alternative
or that State comments have not been received. The ROD should specifically address
State concurrence or nonconcurrence with the response action that is selected,
particularly noting State views on compliance or noncompliance with State ARARs.
* Community acceptance - This criterion refers to the community's comments, where
the community is broadly defined to include all interested parties, on the remedial
alternatives under consideration. These comments are taken into account throughout
the RI/FS process through the communications that occur as the Community Relations
Plan is implemented. Again, EPA can only preliminarily assess community accep-
tance during the development of the FS, since formal public comment will not be
received until after the public comment period for the proposed plan and the RI/FS is
held. The detailed analysis, however, may summarize preliminary comments on
components of the alternatives received up to that point.
Reference
NCP pages 8719-8723 (March 8,1990).
ROD Delegation,
Consultations, and
Briefings
The authority to sign the Record of Decision usually is delegated from EPA Headquarters
to the Regions. Consultation with Headquarters continues to be required in certain circum-
stances.
Formal consultations with Headquarters generally are required where the proposed reme-
dial action exceeds $60 million; utilizes Fund-balancing waivers; involves sites with soil
lead cleanup levels derived by the Uptake Bio-Kinetic (UBK) model which fall outside the
500-1000 ppm range; involves sites with dioxin as a major contaminant; or involves
national precedent-setting issues; ROD amendments as a result of new information from
the PRPs or changes brought about by settlements; all Explanation of Significant Differ-
ences (ESDs); containment-only remedies; and technical impracticability waivers for
DNAPLs in ground water and soil. Consultations are to occur prior to issuance of the
Proposed Plan or Amended Proposed Plan. The consultation process outlined above also
is applicable to Federal Facilities RODs, ROD amendments, and ESDs.
The lead agency will conduct a pre-ROD briefing for Headquarters staff if the site involves
nationally significant or precedent-setting issues. Additionally, a pre-ROD briefing for
Headquarters must be performed for all RODs that require Headquarters concurrence.
4-Selection of Remedy
-------
Section II. Procedures and Interactions
This section discusses the steps in the decision-making process required to fulfill the
mandates of sections 113,117, and 121 of CERCLA.
A.
Review of RI/FS
The RI/FS provides the decision-maker with an assessment of the extent and nature of the
contamination at the site, an assessment of current and potential risks posed by the site to
human health and the environment, a description of alternatives, and comparison of
alternatives based on the nine criteria. In addition, the RI/FS identifies the performance
levels each alternative is expected to attain to ensure protection of human health and the
environment. The lead agency must confirm that there is sufficient information to support
the selection of a preferred alternative when reviewing the RI/FS data, and should require
further study if the information is insufficient. PRPs must not be allowed to influence the
remedy selection process such that less protective or permanent remedies are selected. It
is the lead Agency (EPA or the State if it is a State-lead site with no Federal funding), and
not a PRP, that must select the preferred alternative and the ultimate remedy. See the
discussion in section IV, Problems and Resolutions, of this chapter.
EPA's RPM should ensure that proper remedial action objectives are chosen and that the
proper alternatives pass the screening. Before completion of the final RI/FS report, EPA
should consult with the State in examining the findings of the comparative analysis. EPA
then makes a preliminary determination of the preferred alternative.
B. Preparation of
Proposed Plan
Section 117 of CERCLA requires the lead agency to issue a proposed plan that identifies
its preferred remedial alternative. The proposed plan highlights information about the site,
remedial alternatives evaluated in the RI/FS report, and the preferred alternative. It also
describes all opportunities for public input, and requests comments from the community
on each of the remedial options.
Format of Proposed Plan
The lead agency may issue the plan in a fact sheet format. If, however, the plan presents
complicated remedial options or involves a site that has sparked public controversy, the
lead agency may consider issuing the plan in an expanded format. In either case, the
agency should write it in a style that is informative and readily understandable by the
public. It may be helpful to have the community relations coordinator review the format
of the plan before it is issued. The plan must retain enough detail so that the problem to be
addressed at the site and the options for solutions are clearly identified.
Contents Of Proposed Plan The proposed plan should address the following topics:
+ Statement of Document's Purpose
Describes functions of plan
- Directs public to RI/FS
Solicits input on all alternatives
* Site Background
Gives physical description
Explains site remedial, enforcement, and operational history
Identifies lead and support agencies
* Role and Scope of Operable Unit or Response Action
Selection ofRemedy-5
-------
* Summary of Site Risks
Identifies chemicals of concern
Identifies exposure scenarios
Summarizes current and potential site risks
* Summary of Alternatives
Briefly describes alternatives evaluated in detail, including cost and implementa-
tion time and whether ARARs will be met or waived
* The Preferred Alternative and Evaluation of Alternatives
Identifies preferred alternative
Lists evaluation criteria
Profiles performance of preferred alternatives against evaluation criteria, high-
lights trade-offs with respect to other options
Describes and gives justification for any ARARs waivers
Describes means of implementing institutional controls
Indicates preliminary determination of compliance with statutory requisites
* Community Involvement
Identifies locations, times, and dates for comment periods and public meetings
Identifies location(s) of Administrative Record
Lists names and numbers of government contacts
States whether special notice was issued.
These topics are described in detail in OSWER Directive 9355.3-02, "Interim Final
Guidance on Preparing Superfund Decision Documents: The Proposed Plan and Record of
Decision" (July 1989).
C. State/Federal
and Public Input on
Preferred Alternative
Following is a general discussion of the process for coordinating State/Federal and public
(including PRP) input on the remedial alternatives and preferred option described in the
proposed plan.
When EPA selects a preferred alternative at a PRP-lead site, an opportunity for review and
comment on all alternatives should be provided to Headquarters Program Offices, States
and other Federal Agencies prior to the release of the proposed plan for public comment.
The RPM also should seek substantial input from the State and State Agencies. Early State
involvement improves the Superfund program's ability to identify and meet ARARs and
address State issues and facilitate concurrence on the selected remedy.
State-lead sites fall into two categories: 1) sites where EPA has provided funding and has
retained the right to select the remedy, and 2) sites where EPA is not involved. Regarding
the first category, in the event that the State is the lead, and EPA does not concur on the
selected remedy, EPA can assume the lead for the ROD and proceed through the design
stage. Such instances are not expected to occur often.
In the second category, the State should be reminded that EPA is not bound by the remedy
selection unless the Regional Administrator signs the ROD or concurs on it. The State
should send copies of the RI/FS report and draft proposed plan to appropriate program
offices. If the Regional Administrator is to sign the ROD, the RPM should ensure consis-
tency with CERCLA and the NCP, the sufficiency of the Administrative Record, and
technical backup for the RI/FS including QA/QC and treatability testing.
6-Seleclion of Remedy
-------
D. Finalization of
Proposed Plan
EPA reviews the State's written comments, summarizes them in the plan, and provides a
response. In evaluating the State's comments, EPA should consider State cost sharing and
ARARs. The response may include revision of the preferred alternative. If the site is
State-lead and EPA does not agree with the State's preferred remedy, EPA must advise the
State, in writing, that EPA is not bound by the State's decision.
E. Public Input on
Remedial Alternatives
Once the proposed plan is finalized, the lead agency must make the plan available to the
public and announce its availability. A notice must be placed in a local newspaper of
general circulation. In addition, the agency should notify the public of all opportunities
and resources for community input in order to prepare concerned citizens for an upcoming
public comment period.
Public Notice The agency presents information to the general public on the proposed plan and upcoming
public comment period primarily by placing a public notice or advertisement in a local
newspaper. In addition, EPA guidance suggests announcing the availability of the RI/FS
and proposed plan by sending notices to all persons on the community relations mailing
list, including PRPs. The lead agency may also wish to send out fact sheets or letters to
persons on the list or distribute copies of the proposed plan.
For detailed information, see OSWER Directive 9355.3-02, "Interim Final Guidance on
Preparing Super/and Decision Documents: The Proposed Plan and Record of Decision,"
(July 1989) and OSWER Directive 9836.2 "CERCLA Mailing Lists" (January 1989).
Public Meeting Another source of public information is public meetings. Section 117(a)(2) of CERCLA
requires that the lead agency provide an opportunity for a public meeting near the site.
The meeting need not take the form of a public hearing. The agency should bear in mind
mat no one meeting format is appropriate for all Superfund sites. The agency is required
to keep a transcript of public meetings concerning the RI/FS and proposed plan.
Public Comment Period
The lead agency solicits public opinion on a preferred alternative by holding a public
comment period. During the comment period, the public, including PRPs, may submit, in
the form of written statements or oral comments during a meeting, information for the lead
agency to consider in selecting a remedial alternative.
For a detailed discussion of community relations requirements, consult EPA/540/R-92/
009, Community Relations in Superfund: A Handbook (January 1992).
Administrative
Record
At various times during the RI/FS and ROD process, public notices are issued that refer
interested persons to the Administrative Record file for information so that they can input
into the process in an informed manner. The Administrative Record, when completed,
includes all documents that the agency considered or relied on to select the remedial
action. The record file will be located at the Regional office and at a repository at or near
the site to facilitate review. Chapter XV, Records Management, contains more informa-
tion on the Administrative Record. In addition, Exhibit VII-2 identifies the documents that
the agencies should place in the Administrative Record file during the remedy selection
process.
The lead agency compiles and maintains the Administrative Record file. Complete
documentation is essential to demonstrate that the agency considered all relevant informa-
tion and provided a contemporaneous explanation of its decision-making.
Selection ofRemedy-7
-------
A detailed list of information that should be included in an Administrative Record file is
contained in OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records
for Selection of CERCLA Response Actions" (December 3,1990).
PRP Participation The Agency, and not a PRP, must compile the Administrative Record, however, in some
circumstances, PRPs may assist in maintaining the Administrative Record and in conduct-
ing community relations activities. With respect to the Administrative Record, PRPs may
house the record file at or near the site. The Agency must, however, decide which docu-
ments to include in the record, which documents to transmit to the PRPs for inclusion in
the record, and must maintain the record index. PRP activities with respect to community
relations activities may include assisting at public meetings and providing fact sheets,
subject to the lead agency's approval and oversight. The Community Relations Plan should
reflect the fact that PRPs are helping to conduct public information activities.
F. Special Notice To
PRPs
At a Federal-lead site, EPA may negotiate with the PRPs over implementation of the RD/
RA, as appropriate. At a State-lead site, EPA is not required to conduct negotiations.
However, if Fund monies will be requested by the State, negotiations will precede the
obligation of funds unless there is good reason for not negotiating. In accordance with
CERCLA, EPA may, at its discretion, send a special notice to the PRPs. The notice letter
triggers a 60-day moratorium on EPA-conducted remedial action activities. If the PRPs
submit a good faith offer for conducting the work during the 60-day time frame, the
moratorium continues for another 60 days while EPA evaluates the offer and finalizes
negotiations. It is important to prepare for negotiations before the ROD is signed. See
Chapter VIII, RD/RA Negotiations/ Settlement, for a detailed description of the appropri-
ate circumstances and procedures for conducting RD/RA negotiations.
Required Notifications In addition to notifying the PRPs that the moratorium has been invoked, the RPM must
notify other parties as well. The RPM shall notify State representatives and State or
Federal Natural Resources Trustees. This notification should include a copy of the special
notice letter and a list of the parties receiving it. The RPM should submit at this time the
notice letter and list to the Administrative Record coordinator for inclusion in the Adminis-
trative Record.
G. Final Selection
of Preferred Alternative
The final selection of a remedy is reflected in the draft Record of Decision (ROD). Before
signing the ROD, however, EPA re-evaluates its chosen alternative, as follows.
At the end of the public comment period, EPA re-evaluates its preferred alternative on the
basis of comments and new information received from the public, (including PRPs). As a
result of this information, the Agency may elect to adopt the preferred remedy as originally
proposed, modify a component of the preferred remedy, or select a different remedy.
If the Agency modifies its original preferred alternative, it must examine the extent of the
change. Some changes must be discussed in the ROD, and some significant changes
require additional opportunity for public comment.
For more detailed information, consult OSWER Draft Directive 9355.3-02, "Interim Final
Guidance on Preparing Superfund Decision Documents (July 1989).
H. Prepare Draft ROD After Agency re-evaluation of the chosen alternative, the Agency prepares a draft ROD.
The ROD serves as the official Agency decision document on the selection of a remedy
that makes all determinations and findings required by statute and regulation.
8-Selection of Remedy
-------
Exhibit VI 1-2(1)
Contents of the Administrative Record
The record file for a response action will typically, but not in all cases, include the documents listed below.
Documents that are relevant only to remedial or removal response actions are indicated in brackets.
Factual Information/Data
• Preliminary assessment report
• Site investigation report
• Approved RI/FS workplan [Remedial]
• Amendments to final RI/FS workplan [Remedial]
• Sampling and analysis plan consisting of a quality assurance project plan (QAPP) and
a field sampling plan [Remedial]
• Validated sampling and analysis data
• Chain of custody forms
• Inspection reports
• Data summary sheets
• Technical studies
• Endangerment assessment/risk assessment
• Summary of remedial action alternatives (used in conjunction with early special notice letters)
[Remedial]
• RI/FS [Remedial]
Engineering evaluation/cost analysis (EE/CA) [Removal]
Factual information submitted by the public (including PRPs)
Policy and Guidance
Memoranda on policy decisions (site-specific, issue-specific)
• Guidance documents
• Technical literature
Public Participation
• Community relations plan
• Newspaper articles
• Proposed plan [Remedial]
• Public notices
Community relations mailing list and documents sent to persons on this list
Documentation of public meetings
• Public comments
• Transcript of public meeting on RI/FS and proposed plan [Remedial]
• Responses to significant comments
• Responses to State and other Federal Agency comments
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Exhibit VII-2(2)
Contents of the Administrative Record
Other Party Information
• Documentation of State involvement
• ATSDR health assessment
• Natural Resources Trustees finding of fact and final reports
Enforcement Documents (Only if considered or relied on in selecting the response action)
• Administrative Orders
• Consent Decrees
• Affidavits
• Notice letters to PRPs containing relevant factual information not included elsewhere in the
record file
• Responses to notice letters
• Section 104(e) information requests
Responses to section 104(e) information requests
Decision Documents
• ROD, including responsiveness summary [Remedial]
• Amended ROD [Remedial]
• Explanation of significant differences [Remedial]
• Action Memorandum [Removal]
• Amended action memorandum [Removal]
EE/CA approval memorandum [Removal]
• Other documents that embody the decision for selection of a removal action [Removal]
-------
Components Of RODs consist of three basic components:
Record Of Decision + Declaration - which functions as an abstract for the key information contained in the
ROD and is the section of the ROD signed by the EPA Regional Administrator or
Assistant Administrator when all sections have been completed
* Decision Summary - which provides an overview of the site characteristics, the
alternatives evaluated, and the analysis of each option, and explains how the selected
remedy meets the statutory requirements
* Responsiveness Summary - which provides an overview and analysis of information
and comments received on the proposed plan, RI/FS report, and other information in
the Administrative Record.
The following discussion presents highlights of the process for compiling a ROD and the
elements of each section. For a complete discussion of RODs, consult OSWER Directive
9355.3-02 "Interim Final Guidance on Preparing Superfund Decision Documents (July
1989).
Declaration The Declaration is the section of the ROD signed by the EPA Regional Administrator or
AA, OSWER. It provides a brief description of the selected remedy and the scope and
role of the response action. The Declaration should summarize information supporting the
determination that the selected remedy meets all statutory requirements and preferences or
provides an explanation as to why it does not. The Declaration should contain a statement
regarding any ARARs waivers. The determination of imminent and substantial endanger-
ment also should be included in the Declaration, unless the ROD is for a no action deci-
sion.
Decision Summary The Decision Summary should provide an overview of the site-specific factors and
analysis conducted that led to selection of the remedy. This section generally should
include:
* Site name, location and description
* Site History and enforcement activities
* Highlights of community participation
* Scope and role of the operable unit or response action
* Site characteristics
* Summary of site risks
* Description of alternatives
* Summary of the comparative analysis of alternatives
* Selected remedy
+ Statutory determinations
* Documentation of significant changes.
For no action RODs, this outline is abbreviated.
Responsiveness Summary The final component of the ROD is the Responsiveness Summary, which serves two roles.
It provides information on community acceptance of the preferred remedy, which is
considered by Agency decision-makers in reaching a decision on a remedy. It also
constitutes a freestanding document explaining how the Agency solicited and responded to
community concerns, written after the Agency has chosen a remedy. The Responsiveness
Summary should be both concise and complete.
Selection ofRemedy-9
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Changes from the Proposed
Plan to the ROD
It is important that each significant comment, received by EPA during the public comment
period, get a thorough examination and response. Agency policy, discussed in response to
comments, must be reviewed by management before it is incorporated into a final respon-
siveness summary.
Significant changes from the preferred alternative must be documented and explained in a
Significant Changes section of the Decision Summary of the ROD. Non-significant
changes should be documented in the Description of Alternatives section of the ROD
Decision Summary. Significant changes may relate to the scope, performance or cost of
the remedy as follows:
* Scope - changes that address a substantially greater volume of waste, a new environ-
mental pathway or media, or that encompass a substantially greater physical area of
the site.
* Performance - changes in treatment technologies or processes that alter the long-term
effectiveness of the remedy, have different short-term effects, or provide a different
level of performance.
+ Cost - changes that significantly alter the capital or operation and maintenance cost
estimates for the selected remedy.
Unanticipated Changes
If a change could not reasonably have been anticipated by the public, EPA must provide
additional time for public comment. An example of a change that could not reasonably
have been anticipated is selection of a new alternative not previously analyzed.
State/Federal
Consultation on
Selected Remedy
Once the draft ROD is complete, the lead and support agencies will brief their own
management on the ROD. As outlined in the NCP, the lead agency will submit the ROD
to the support agency, which should be allowed at least ten working days to examine the
ROD, unless the CA or SMOA specifies a different time frame. Both agencies will submit
the ROD for review by the support program offices. Each agency determines its own
timeframe for interagency review.
In particular, lead and support agencies should get the input of Regional and State legal
counsels. An area of potential dispute with the State is what requirements are relevant and
appropriate. It should be stressed to the State that relevant and appropriate determinations
should make sense in light of the circumstances of the release at the site. Regions will
consult with Headquarters on all RODs involving nationally significant or precedent-
setting issues, such as, sites at which the proposed remedy exceeds $60 million; that use a
Fund-balancing waiver; that involve soil lead cleanup levels which fall outside the 500-
1000 ppm range; that have dioxin as a major contaminant, "containment-only" remedies,
ESDs, ROD amendments as a result of new information from the PRPs or changes brought
about by settlements, or technical impracticability waivers for DNAPLs in ground water
and soil.
Based on comments received, the lead agency may modify the selected remedy and revise
the ROD.
Concurrence The agency that takes the lead responsibility for preparing the ROD actively seeks concur-
rence from the support agency. State-lead remedial actions conducted under federal
authority require EPA signature. State-lead remedial actions at an NPL site that are
conducted under State authority and with State funding may, but need not, include an EPA
concurrence. Federal-lead remedial actions at an NPL site that are conducted under EPA
authority may, but need not, include a State concurrence. Concurrences become part of the
ROD Declaration.
10-Selection of Remedy
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While EPA may execute a ROD with a remedy that the State will not agree to, or has yet
to comment on officially, EPA should anticipate the consequences. First, for a Fund lead
action, it is unlikely that a State will pay for part of the remedial action and operation and
maintenance, if it disagrees with the remedy. Second, State non-concurrence may ad-
versely affect settlement negotiations and a State may oppose entry of a Consent Decree
premised upon a remedy with which it disagrees. Third, the State may testify on behalf of
the PRPs in a section 106 judicial action. Fourth, the State may not grant necessary
permits for offsite activities, (i.e., POTW disposal, transportation of wastes, and offsite
treatment). Nonetheless, in some instances, EPA may sign a ROD over State objections.
Refer to the Potential Problems/Resolutions section of this chapter for a discussion of
possible approaches to be considered if the State and Federal Agencies prefer inconsistent
alternatives and have difficulty reaching concurrence.
J.
Briefing and
Signature
When the State completes a ROD, preferably the State Director and the EPA Regional
Administrator should sign it. Where there are disagreements and EPA provided funding
for the RI/FS, EPA may assume the lead on a ROD and sign it without State agreement.
No State signature is required on an EPA-lead ROD, although the State has a responsibil-
ity to provide the lead agency with a written declaration of concurrence or non-concur-
rence. All RODs conducted under Federal authority will be signed by the EPA Regional
Administrator or the Assistant Administrator of OSWER, as specified in the delegation
report.
K.
Notice Pursuant to section 117 of CERCLA, the lead agency will publish notice of the final
remedial action plan. The notice will be published in a major local newspaper of general
circulation. CERCLA also requires that the agency make the ROD available to the public
before any remedial action begins. The final version of the ROD, including the Respon-
siveness Summary, should be included in the Administrative Record.
L
Post-ROD
Changes
EPA may receive new information that leads it to alter the remedy specified in the ROD.
When this occurs, EPA must evaluate the contemplated change to determine the proce-
dures it must follow. Three categories of post-ROD changes exist:
• Non-significant differences - minor changes that do not significantly affect the
overall scope, performance, or cost of the alternative, such as minor technical or
engineering changes.
• Significant differences to a component of the remedy - changes that significantly
affect the overall scope, performance, or cost of the alternative, but do not alter the
overall waste management approach, such as changes to ARARs, timing, cost, or
implementation.
• Fundamental changes to the overall remedy - changes that alter the overall waste
management approach, such as substitution of a containment remedy for a treatment
remedy.
Each category of change requires documentation or an opportunity for public comment.
For further information on post-ROD changes, consult OSWER Draft Directive 9355.3-02,
"Interim Final Guidance on Preparing Superfund Decision Documents" (July 1989).
Selection ofRemedy-11
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Section III. Planning and Reporting Requirements
A.
Reporting
Requirements
Submission of Documents
This section of the chapter discusses RPM planning and reporting requirements for the
selection of remedy phase of the Superfund program.
In addition to referring documents to EPA program offices for review, the lead agency
must submit them to Headquarters for purposes of receiving credit for their accomplish-
ments. The lead agency must also send to Headquarters a hard copy of the ROD and a
copy of the ROD text on disk in order to receive credit for an initial, subsequent, or final
RI/FS completion.
Information Databases
The lead agency also has responsibility for enabling EPA to track accomplishments at the
site, such as submission of the draft Feasibility Study to the public. The lead agency meets
this responsibility by providing information on selection of remedy activities to EPA
databases. The RPM is responsible for ensuring that accurate information on ROD start
and completion dates goes into CERCLIS/WasteLAN.
Implications of
Submissions
The information supplied by the lead agency about RI/FS completion/submission of the
ROD has many important implications. The program planning and budgeting processes
use this information. The planning processes for RD/RA negotiations, design funding, and
section 106 injunctive cases also rely on this information. The lead agency must make
every effort to ensure the accuracy of the date and to achieve ROD completion by that
time.
SC AP/STARS Tne Selection of Remedy process is tracked through CERCLIS/WasteLAN. For informa-
tion on the SCAP/STARS targets and measures for selection of remedy, see the Planning
and Reporting Requirements section of Chapter VI, RI/FS Implementation.
B.
Planning
Requirements
The case budget should include an estimate of dollars needed for implementation of a
Community Relations Plan. The RPM must also work closely with the Office of Regional
Counsel and DOJ to determine any budgeting needs to carry out case management strat-
egy. This may include budgeting for a 106/107 action or specialized RD/RA negotiation
tasks. Other budgeting requirements might involve a Federal Enforcement Remedial
Design or a Fund-financed RD/RA. For further case budget information, refer to Chapter
XVI, Case Budget/Contracts.
Contractor Participation As provided in Chapter VI, RI/FS Implementation, EPA may reserve parts of the RI/FS for
its own conduct or may perform parts when PRPs do not do so satisfactorily. Contractors
may assist in these endeavors. Contractors also may assist in providing community
relations activities, with the approval of the lead agency. Contractors may assist further by
drafting straightforward portions of the ROD package (i.e., site history, description of
contamination) and providing technical assistance in preparation of the Responsiveness
Summary, although the accuracy of these documents remains the responsibility of the lead
agency. Finally, contractors may assist the lead agency in providing meetings and brief-
ings for agency management.
12-Selection of Remedy
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Section IV. Potential Problems/Resolutions
This section discusses problems commonly encountered by lead agencies during the
selection of remedy process. It suggests methods that agency personnel have found helpful
in solving these problems.
A. Inconsistent PRP
Alternative
The FS should not recommend a remedy, that is the function of the Proposed Plan. The FS
provides information on all viable alternatives considered. If one is favored and is not
eventually selected, FS amendment would be required. More importantly, pre-selection of
remedy is implied, which arguably causes due process issues since public participation and
support agency input are still pending. The best means of avoiding this problem is preven-
tion. The lead agency should provide effective oversight of the RI/FS process. See
OSWER Directive 9835.la "Interim Guidance on Potentially Responsible Party Participa-
tion in Remedial Investigations and Feasibility Studies" (October 1988) and OSWER
Directive 9835. l(c) and (d) "Guidance on Oversight of Potentially Responsible Party
Remedial Investigations and Feasibility Studies," Volume 1 and 2 (July 1991). The lead
agency may have to supplement the RI/FS to avoid bias. The lead agency must ensure that
the selected remedy is well founded on data that exists in the Administrative Record.
B. Extensive Public
Comment
The public may strongly advocate or discourage specific alternatives, due to health
concerns, property value issues, or employment. The agency should anticipate this
situation and plan community relations activities so as to receive input from many citizens
at an early date, thus getting conflicts out in the open quickly and resolving issues. Other-
wise, the public may provide a sizeable number of comments during the public comment
period. The lead agency would need a substantial amount of time to respond to the
comments, which might throw off its schedule for completing the ROD. In addition, the
lead agency must allow adequate time for responding to public comments when scheduling
financial commitments.
Disputes Over
ROD
If the support agency does not concur on the remedy, the lead agency may choose not to
proceed with the ROD. At a non-enforcement Federal-lead site, the ability to proceed with
the RA is contingent upon the availability of the 10 percent (or 50 percent in the case of
State-owned sites) State matching funds. At a State-lead site, the State may proceed with a
State-funded RD/RA without EPA concurrence. However, since EPA must certify that the
remedial action was performed in accordance with the NCP, in order to delete it from the
NPL, the State is likely to have difficulty getting this certification if EPA did not concur on
the ROD. At a PRP-lead site, the RD/RA may proceed without State concurrence. Reach-
ing consensus on the remedial action at ROD signature generally precludes these difficult
situations. However, there will be instances in which one of these approaches is appropri-
ate.
Selection ofRemedy-13
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Section V. References
PoliCV National Oil and Hazardous Substance Pollution Contingency Plan (40 CFR) (March 8,
1990).
GuidanCG OSWER Directive 9335.3-01, "Guidance for Conducting Remedial Investigations and
Feasibility Studies" (October 1988).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing Superfund Decision
Documents" (July 1989).
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for Selection
of CERCLA Response Actions" (December 3,1990).
OSWER Directive 9835.1 (a), "Guidance on Potentially Responsible Party Participation in
Remedial Investigations and Feasibility Studies" (May 1988).
OSWER Directive 9835.1 (c) and (d), "Guidance on Oversight of Potentially Responsible
Party Remedial Investigations and Feasibility Studies," Volumes 1 and 2, (July 1991).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OSWER Directive 9355.3-06, "RI/FS Improvements: Phase II Streamlining Recommen-
dations" (January 1989).
OSWER Directive 9836.2, "Community Relations Mailing List" (February 6,1989).
Manuals OSWER Directive 9200.3-01B, Superfund Comprehensive Accomplishments Plan (SCAP)
Manual (Annual).
EPA/540/R-92/009, Community Relations in Superfund: A Handbook (January 1992).
OSWER Directive 9355.1-1, Superfund Federal-Lead Remedial Project Management
Handbook (December 1986).
OSWER Directive 9234.1-01, CERCLA Compliance with Other Laws Manual (August
1988).
CERCLA Administrative Records: Compendium of Frequently Used Guidance Documents
in Selecting Response Actions, 32 volumes (May 1989).
GllidGS Applicable or Relevant and Appropriate Requirements (ARARs)
(OERR, 0PM, Policy and Analysis Staff)
9234.2-01FS, "ARARs Q's and A's" (May 1989).
9234.2-03FS, "Overview of ARARs: Focus on ARAR Waivers" (December 1989).
9234.2-04FS, "RCRA ARARs: Focus on Closure Requirements" (October 1989).
9234.2-05FS, "CERCLA Compliance with State Requirements" (December 1989).
9234.2-06FS, "CERCLA Compliance with the CWA and SDWA" (February 1990).
9234.3-001, "ARARs Short Guidance Quarterly Report" (December 1989).
9234.1-02FS, "Guide to Manual: CERCLA Compliance with Other Laws" (September
1989).
9234.2-08FS, "ARARs Q's and A's: Compliance with the Toxicity Characteristics Rule:
Part I" (May 1990).
14-Selection of Remedy
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9234.2-07FS, "Summary of Part II: CAA, TSCA, and Other Statutes" (April 1990).
Land Disposal Restrictions (LDRs)
9347.3-01FS, "Superfund LDR Guide #1: Overview of RCRA Land Disposal Restrictions
(LDRs)" (July 1989).
9347.3-02FS, "Superfund Guide #2: Complying With the California List Restrictions
Under Land Disposal Restrictions (LDRs)" (July 1989).
9347.3-03FS, "Superfund LDR Guide #3: Treatment Standards and Minimum Technology
Requirements Under Land Disposal Restrictions (LDRs)" (July 1989).
9347.3-05FS, "Superfund LDR Guide #5: Determining When Land Disposal Restrictions
(LDRs) Are Applicable to CERCLA Response Actions" (July 1989).
9347.3-06FS, "Superfund LDR Guide #6A: (Second Edition), Obtaining a Soil and Debris
Treatability Variance for Remedial Actions" (September 1990).
9347.3-06BFS, "Superfund LDR Guide #6B: Obtaining a Soil and Debris Treatability
Variance for Removal Actions" (September 1990).
9347.3-07FS, "Superfund LDR Guide #7: Determining When Land Disposal Restrictions
(LDRs) Are Relevant and Appropriate to CERCLA Response Actions" (December 1989).
9347.3-08FS, "Superfund LDR Guide #8: Compliance with Third Third Requirements
Under the LDRs" (October 1990).
9347.3-09FS, "A Guide to Delisting of RCRA Wastes for Superfund Remedial Responses"
(September 1990).
9347.3-10FS, "Superfund LDR Guide #10: Guide to Obtaining No Migration Variances
for CERCLA Remedial Actions" (undated).
9347.3-11FS, "Superfund LDR Guide #11: CERCLA Compliance with the RCRA
Toxicity Characteristics (TC) Rule: Part II" (October 1990).
Remedial Investigation/Feasibility Studies (RI/FS)
9355.3-01FS1, "Getting Ready: Scoping the RI/FS" (November 1989).
9355.3-01FS2, "The Remedial Investigation Site Characterization and Treatability Stud-
ies" (November 1989).
9355.3-01 FS3, "The Feasibility Study Development and Screening of Remedial Action
Alternatives" (November 1989).
9255.3-01FS4, "The Feasibility Study Detailed Analysis of Remedial Action Alternatives"
(March 1990).
9380.3-02FS, "Treatability Studies Under CERCLA: An Overview" (December 1989).
9355.3-11FS, "Streamlining the RI/FS for CERCLA Municipal Landfill Sites" (September
1990).
Record of Decision (ROD)
9335.3-02FS-1, "A Guide to Developing Superfund Records of Decision" (May 1990).
9335.3-02FS-2, "A Guide to Developing Superfund Proposed Plans" (May 1990).
9355.3-02FS-3, "A Guide to Developing Superfund No Action, Interim Action, and
Contingency Remedy RODs" (April 1991).
9355.3-02FS-4, "A Guide to Addressing Pre-ROD and Post-ROD Changes" (April 1991).
Selection ofRemedy-15
-------
Remedy Selection
9355.0-27FS, "A Guide to Selecting Superfund Remedial Actions" (April 1990).
9355.4-01, "A Guide on Remedial Actions at Superfund Sites with PCB Contamination"
(August 1990).
Ground Water
9283.1-2FS, "A Guide On Remedial Actions For Contaminated Ground Water" (April
1989).
Technology
9200.5-250FS, "Innovative Technology Soil Washing" (November 1989).
9200.5-251FS, "Innovative Technology In-Situ Vitrification" (November 1989).
9200.5-252FS, "Innovative Technology Slurry-Phase Biodegradation" (November 1989).
9200.5-253FS, "Innovative Technology BEST Solvent Extraction Process" (November
1989).
9200.5-254FS, "Innovative Technology Glycolate Dehalogenation" (November 1989).
Risk Assessment
9285.7-01 FS2, "Risk Assessment Guidance for Superfund: Volume 1 — Human Health
Evaluation Manual (Part A)" (December 1989).
9285.7-01 BFS, "Risk Assessment Guidance for Superfund: Volume 1 — Human Health
Evaluation Manual (Part B)" (December 1989).
9285.7-01CFS, "Risk Assessment Guidance for Superfund: Volume 1 — Human Health
Evaluation Manual (Part C)" (December 1989).
9285.7-05FS, "Guidance for Data Useability in Risk Assessment" (September 1990).
Additional Short Sheets Planned
9355.5-12FS, "RPM Involvement"
"Superfund Sites Contaminated by Wood Treatment Residues"
"Wetlands Requirements That May be ARARs for Superfund Actions"
"Discharging CERCLA Wastewater to a POTW"
"Contaminated Media: Proposed Hazardous Waste Identification Rule"
Training EPA's Technology Innovation Office conducts training for Regional personnel on the RI/
FS process, including selection of remedy, as part of its CERCLA Education Center. In
addition, a computer-based training on the RI/FS process is currently being developed.
For information, contact 703-308-8800.
Contacts Selection of Remedy Guidance
Contact Office of Emergency and Remedial Response, Hazardous Site Control Division,
Remedial Operations and Guidance Branch, at 703-603-8820.
Site-Specific RODs
For Enforcement-lead, contact Regional Coordinator, Office of Waste Programs Enforce-
16-Seleclion of Remedy
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ment, CERCLA Enforcement Division, Compliance Branch, at 703-603-8910.
For Fund-lead, contact Regional Coordinator, Office of Emergency and Remedial Re-
sponse, HSCD, Remedial Operations and Guidance Branch, at 703-603-8820.
State Concurrence
Contact Office of Waste Programs Enforcement, CERCLA Enforcement Division, Guid-
ance and Evaluation Branch, at 703-603-8940.
Land Disposal Restrictions
Contact Office of Emergency and Remedial Response, HSCD, Remedial Operations and
Guidance Branch, at 703-603-8820.
Also:
Office of Waste Programs Enforcement, CERCLA Enforcement Division, Guidance and
Evaluation Branch, at 703-603-8940.
Office of Emergency and Remedial Response, Hazardous Site Control Division, Design
and Construction Branch, at 703-603-8830.
Office of Emergency and Remedial Response, Hazardous Site Control Division, Remedial
Operations and Guidance Branch, at 703-603-8820.
Selection ofRemedy-17
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Section VI. Activities Checklist
The following checklist is not intended to present an exhaustive set of procedures. RPMs
should exercise their professional discretion when deciding what procedures are appropri-
ate for a particular site.
Selection of Preferred Alternative
1) Review Rl/FS report. Confirm that there is sufficient information to
support the selection of a preferred alternative. Require further study if
the information is insufficient.
2) Make a preliminary determination on a preferred alternative.
3) Produce draft version of proposed plan that identifies preferred remedial
alternative.
4) Review and comment on all alternatives by States and other Federal
agencies for RP-lead sites.
5) Review operative Remedy Delegation Report to ascertain if HQ review/
comment or consultation is needed.
6) Send draft RI/FS report and draft proposed plan to appropriate program
offices.
7) Review State comments, summarize them in proposed plan and draft
Agency response.
8) Finalize proposed plan by lead Agency addressing support agency and
other program office comments as appropriate.
9) Submit RI/FS, proposed plan, comments, and responses to Administra-
tive Record, along with any other information used in reaching decision.
10) Publish newspaper notice of availability of proposed plan and RI/FS and
other opportunities and resources for community input.
11) Notify persons on mailing list that proposed plan and RI/FS are complete.
12) Conduct public meeting.
13) Conduct community relations activities.
14) Hold 30-day public comment period. This may be extended by an
additional 30 days upon timely request.
Preparation for RD/RA Negotiations (see Chapter VIII, RD/RA Negotiations/Settlement)
Final Selection of Remedial Alternative
15) Re-evaluate preferred alternative on basis of comments and new informa-
tion received from the public including PRPs and other sources.
16) Prepare draft version of ROD Declaration and Decision Summary.
17) Prepare Summary and Response to Comments for Responsiveness
Summary.
18) Conduct public comment period on any significant changes which were
not logical outgrowths of the earlier remedial alternatives.
19) Finalize ROD Decision Summary.
20) Complete Responsiveness Summary.
18-Selection of Remedy
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21) Brief lead agency management on ROD.
22) Submit ROD to appropriate offices and support agency, which will brief
its management on the ROD.
23) Receive input from Regional counsel.
24) Receive concurrence or non-concurrence from support agency on the
selected remedy.
25) Brief agency management and present ROD for signatures.
26) Publish notice and make ROD available to public through Administrative
Record.
27) Provide information on ROD start and completion for entering into
CERCLIS/WasteLAN.
28) Send copy of ROD and disk to Headquarters.
Selection of Remedy—19
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VIII. RD/RA NEGOTIATIONS/
SETTLEMENT
-------
Chapter VIII
RD/RA Negotiations/Settlement
Section I. Description of Activity 1
Introduction 1
Statutory Authority 1
Overview of the Negotiation Process 1
Roles and Responsibilities 2
RPM Responsibilities 2
ORC Responsibilities 3
OWPE Responsibilities 3
OE Responsibilities 3
OGC Responsibilities 3
DOJ Responsibilities 4
Delegations 4
Section II. Procedures and Interactions 6
A. Regional Decision to Pursue RD/RA Negotiations 6
Review PRP Search 6
B. Negotiation Planning 6
RD/RA Negotiation Plan 6
Draft Consent Decree 7
Covenants Not to Sue 7
Reopeners 8
C. Notification of States and Federal Natural Resources Trustees 8
D. Special Notice Letters 9
Contents 9
Cost Recovery 9
Timing the SNL 10
Section 122(a) Letters 10
E. Good Faith Offer (GFO) 10
Negotiation Extensions 11
F. Settlement Incentives/ Disincentives 11
G. CERCLA Settlement Policy 11
H. Settlement Tools 12
Mixed Funding Settlements 13
Preauthohzation 14
Mixed Work 15
Cash Out 15
RD/RA Negotiolions/Settlemenl-i
-------
DeMinimis 16
Criteria for Eligibility for De Minimis Settlements 16
Necessary Information for GeneratorDe Minimis Settlements 16
Potential De Minimis Generator Candidates 16
Timing De Minimis Settlements 17
Reopeners 17
Finalizing Settlement 17
Non-Binding Allocation of Responsibility (NEAR) : 18
I. Finalizing Settlement 18
Referral Package 19
J. Inducements to Non-Settlors/ Enforcement Options 19
Section 106(a)UAOs 19
Enforcement Discretion 20
Section 106 Litigation 20
Fund 20
Partial Settlements 21
K. Post-Referral Actions by DOJ 21
Section III. Planning and Reporting Requirements 22
A. Budget Requirements 22
B. Reporting Requirements 22
Section IV. Potential Problems/Resolutions 26
A. Poor Relationships Among the PRPs 26
B. Multiple Revisions to Draft CD 26
C. Settling with Majors Involved with De Minimis Settlements 26
D. Use of Public Relations 26
E. Inadequate PRP Searches 27
F. Late Challenges to Volumetric Ranking 27
Section V. References 28
Policy 28
Guidance 28
Memoranda 29
Contacts 29
Training 29
Section VI. Activities Checklist 30
ii-RDIRA Negotiations/Settlement
-------
Chapter VIII
RD/RA Negotiations/Settlement
Section I. Description of Activity
Introduction This chapter discusses the process of negotiating for PRP conduct of the Remedial Design/
Remedial Action (RD/RA) and focuses on the RPM's role in the process. In addition to
discussing the RD/RA negotiation process, this chapter also discusses the settlement tools
available to EPA and PRPs, including mixed funding, Non-binding Preliminary Alloca-
tions of Responsibility (NBARs), de minimis settlements.
StatUtOlY AuthOritV Section 122 of CERCLA requires that all RD/RA settlements with PRPs be finalized as
judicial Consent Decrees. Consent Decrees usually reference section 106 (Abatement
Actions) and section 122 (Settlements). Settlements for RD/RA or RA only are never
done administratively as an Administrative Order on Consent (AOC). Settlements for RD
only may take the form of AOCs. Settlements with de minimis parties also may be
finalized as AOCs.
Tne RD/RA negotiation process requires cooperation and close coordination of the
.. .... n Regional program office, ORC.DOJ, OE and OWPE. Exhibit VIII-1 summarizes the RD/
Negotiation Process RA negotiation process.
The negotiation planning process begins with a Regional decision that there are Potentially
Responsible Parties (PRPs) who are liable and financially capable of properly implement-
ing the remedy and who may be willing to settle. The Region must evaluate the results of
the PRP search, which should be complete well in advance of RD/RA negotiations, and
other evidence when making this decision.
The first step in the RD/RA negotiation process is for the RPM and Office of Regional
Counsel (ORC) staff person to develop an RD/RA negotiation plan outlining the negotia-
tion objectives and strategy. This plan is part of integrated remedial and enforcement
planning. As a management device, it will define roles and responsibilities for all partici-
pants, establish mutually agreed timelines for performance of individual responsibilities,
establish a framework for accountability in tracking progress, and make it possible to
obtain commitments from all participants to shared goals and objectives. Key areas where
attention should be focused as part of the negotiation planning process are: ensuring a
timely and high-quality PRP search, including information for special notice and evidence
for litigation; ensuring that the Administrative Record is in order; documenting past costs;
and establishing a substantive negotiating strategy. Use of settlement devices such as
mixed funding and de minimis should also be evaluated for appropriateness.
By this stage, most or all PRPs have been notified of their status as PRPs with a general
notice letter. Following general notice, EPA continues to look for more PRPs and for hard
evidence of liability. If additional PRPs are identified, EPA issues general notice letters to
them, unless special notice has been provided or waived as allowed under section 122(a).
The RPM should encourage the new PRPs' involvement in the negotiations and should
notify them of any PRP steering committees that may have formed.
The RPM should contact the Federal Natural Resources Trustees again (earlier contact will
have occurred prior to the RD/RA negotiation planning process) when developing the
negotiation plan to ensure their input to the plan. Coordination with the State is important
when developing the RD/RA negotiation plan to ensure that their concerns are understood
RD/RA NegotiationslSettlement-l
-------
and to determine the availability of State funding should negotiations fail to produce a
settlement.
A pre-referral package should be submitted to the Department of Justice (DOJ) (with
copies to OWPE and OE) before the commencement of the formal settlement process to
ensure timely involvement and coordination with DOJ. Generally, the pre-referral package
should be provided to DOJ at least 60 days prior to the issuance of the RD/RA special
notice letters.
As a practical matter, it is advisable to commence dialogue with OE, OWPE, and DOJ, as
early as possible and prior to providing the pre-referral for the 60-day review, by conduct-
ing a phone conference to get their input on a comprehensive settlement strategy from a
national perspective. This perspective sometimes reveals problems that other regions are
incurring with a certain settlement approach. Awareness of these problems may influence
the overall settlement strategy resulting in a more efficient settlement process.
The formal settlement process begins with the issuance of special notice letters to the
PRPs. Special notice letters are authorized by CERCLA when EPA determines that a
period of negotiation would facilitate an agreement with PRPs for taking response action.
Issuance of special notice should occur between the time the proposed plan and draft
feasibility study are released to the public and the date the ROD is signed, or shortly
thereafter. Exceptions to this are discussed later in this chapter. A draft Consent Decree
(approved by appropriate EPA and DOJ management) and Proposed Remedial Action Plan
or proposed or final ROD should be attached to the special notice letter.
With certain exceptions, the issuance of the special notice letter begins a 60-day morato-
rium period regarding action under sections 104 and 106 of CERCLA. PRPs have 60 days
from the date of issuance to submit a good faith offer to EPA. If such an offer is received,
the moratorium is extended an additional 60 days. If additional time is necessary, the
Regional Administrator may extend the moratorium period by an additional 30 days.
Requests for extensions of RD/RA negotiations beyond 150 days must be well justified
and must be approved in advance by the Office Director, OWPE.
Once agreement has been reached, the PRPs and the Regional Administrator must sign a
Consent Decree. Thereafter, the Consent Decree is forwarded to DOJ with a referral
package developed by ORC. If the settlement falls under any of the categories of non-
delegated settlements, OE and OWPE must concur on the signed Consent Decree before it
is forwarded to DOJ. It should be noted that RD-only settlements may be in the form of an
AOC or stipulation and can be used to expedite the initiation of response work. EPA does
not encourage RD-only settlements without an expectation that the PRPs will agree to
commit to conduct the remedy.
Should EPA fail to reach an agreement with the PRPs, Regions may issue a unilateral
Administrative Order. If the PRPs fail to comply with the UAO, EPA may initiate a
judicial action (referral to DOJ), and/or initiate Fund-financed activity. Referrals to DOJ
for RD/RA are usually under the authority of section 106 of CERCLA. Regions provide
litigation support for the case after it is filed in court by DOJ.
Tnis section describes me roles and responsibilities of the RPMs, assistant Regional
....... counsel, and representatives from OWPE, OE.OGC and DOJ. The primary activities for
nGSpOnSIDIIIllBS eacn group are summarized for each phase of the negotiation process below and in Exhibit
VIII-2.
RPM Responsibilities The RPM plays a central role throughout the RD/RA negotiation process. The RPM is
responsible for technical aspects of the case and for coordinating with ORC and OWPE
during each phase of the negotiations. Planning, preparing for, and participating in the
2- RD/RA Negotiations/Settlement
-------
Exhibit VIII-1
RD/RA Negotiation Process
Decision to Pursue Negotiations
Non-viable
Fund-lead RD/RA
No Settlement-
Enforcement Options:
Section 106 UAO
Fund Implementation
Referral of section 106 Litigation
Cost Recovery (section 107)
Viable
Review PRP Search and
Administrative Record
JL
Develop Negotiation Plan:
Case status
Cost recovery plan
PRP search assessment
Remedy selection plan
and review
Notify Trustees
Special notice preparation
CD preparation
Prepare UAO (if appropriate)
Negotiating positions
Negotiation strategy
Enforcement strategy
and schedule
Major milestone schedule
Funding strategy
I
Notify States
I
Work with Steering Committee
I
Issue Special Notice
Receive GFO
I
Negotiate
Finalize Settlement
PRP Search
Follow-up
Activities
60-day Formal
Negotiation Period
(Consider Settlement
Tools)
60-day Extension
Possible RA and
AA, OSWER
Extensions
"Partial Settlement
Full Settlement
I
Sign Consent Decree
Enforcement Options:
(non-settlors)
Section 106 UAO Carve Out
Referral of section 106 Litigation
Cost Recovery (section 107)
-------
Exhibit VIII-2
Roles and Responsibilities
RPM
ORC
NEGOTIATIONS PLANNING
Ensure PRP search review and follow up by civil
investigator and ORC
Send GNL, if necessary
Coordinate updated information exchange with the
PRPs, including section 104(e) letters and provide the
PRPs with information regarding other PRPs (in
conjunction with assistant Regional counsel)
Assemble cost documentation
Assist in preparation of negotiation plan and
pre-referral litigation report
Review Administrative Record
Draft technical provisions of Consent Decree
Develop remedial action plan (in conjunction with
specialized technical teams (e.g., ground water,
treatment, design) or contractors
Notify State and Trustees
INFORMAL AND FORMAL NEGOTIATIONS
• Send Special Notice Letters (SNL)
• Conduct negotiations as lead technical representative
en the case team
• Maintain coordination between appropriate
Headquarters and State and Natural Resources
Trustee offices
• Manage against time lines
Request extensions for negotiations from Regional
Administrator/Headquarters
Obligate funds from the Trust Fund, if appropriate
NEGOTIATIONS PLANNING
Review strength of evidence of PRP liability
Assist in preparation of the RD/RA negotiation plan
and pre-referral litigation report
Review draft ROD and Administrative Record
Draft initial Consent Decree
Notify DOJ of the negotiations
INFORMAL AND FORMAL NEGOTIATIONS
Draft EPA's negotiation strategy
Review the SNL
Conduct negotiations as the lead legal
representative
Redraft Consent Decree with changes resulting
from negotiations
Coordinate with the State legal representative.
-------
negotiations process, along with having responsibility for negotiation coordination, usually
involves a substantial time commitment by the RPM over a long period of time.
The planning stage is based on a thorough and complete PRP search. RPMs usually will
have given the PRPs early notice of their potential liability through general notice letters.
Information on volumetric rankings of PRPs and the nature of substances at the site is
contained in an RI/FS special notice. The RPM ensures that the PRP search has been
updated, as appropriate, and that special notice for RD/RA is prepared. The RPM also is
responsible for preparation of a negotiation strategy, in conjunction with the assistant
Regional counsel. In view of the intense efforts required to prepare the Proposed Remedial
Action Plan, responsiveness summary, and ROD, as much of this work as possible should
be done before the Proposed Plan is prepared. The RPM assists in developing the Consent
Decree by drafting the technical aspects of the document. The RPM also participates in
developing the case referral packages for section 106 and section 107 litigation cases.
In some regions, an Enforcement Specialist assists the negotiation team by helping to
prepare general and special notice letters, cost documentation packages and by participating
in negotiations.
ORC Responsibilities ORC. in partnership with the RPM, plays a central role in all phases of the RD/RA negotia-
tions. The assistant Regional counsel's primary role is to prepare the pre-referral litigation
report to DOJ and the draft Consent Decree, and to provide legal assessments during the
negotiation process. ORC is responsible for coordinating with DOJ, OE, OWPE, and OGC
as appropriate during the RD/RA negotiations. The assistant Regional counsel also partici-
pates in the development of the case referral package for DOJ litigation of section 106 and
section 107 cases.
OWPE ReSDOnsibilitieS OWPE is responsible for ensuring national consistency for negotiated settlements and
consistency with Agency policy. OWPE has Regional Coordinators who are versed on the
various RD/RA settlement tools (e.g., mixed funding, de minimis) and act as resources for
the RPM and assistant Regional counsel.
OWPE participates in management review of non-delegated settlements, and the Director,
OWPE must concur on these settlements. Additionally, OWPE representatives may
participate on negotiation teams, if complex or nationally significant issues are anticipated.
OWPE also may assist the Regions in assembling part of the cost documentation package.
OWPE should be on the case correspondence list and should be supplied with relevant
documents, including pre-referral litigation reports and draft Consent Decrees, relating to
cases in RD/RA negotiations. OWPE's Settlement Expediter is available to assist the
Regions in resolving issues related to finalizing settlements.
OE Responsibilities OE is responsible for ensuring that negotiated settlements are consistent across the Regions
with national policy for legal matters. OE attorneys have expertise in the legal implications
of RD/RA settlements. OE attorneys may participate in any negotiations in which complex
or nationally significant issues are anticipated, assist Regional counsel in pre-referral
matters and review referrals sent to DOJ. OE also reviews all Consent Decrees resulting
from settlements. For non-delegated settlements, the AA, OE must concur. Whether or not
the settlement is delegated, OE should be on the case correspondence list and be supplied
with relevant documents including pre-referral litigation reports and Consent Decrees.
OGC Responsibilities OGC has the sole responsibility for issuing Agency legal opinions and providing advice on
matters of legal and statutory interpretation to the Regions and program offices. If there is
a difference of opinion between the regions or between HQ offices, OGC has the ultimate
responsibility for providing legal advice and direction for EPA as a whole.
RD/RA Negotiations/Settlement-3
-------
DOJ Responsibilities DOJ's representative from the Environment and Natural Resources Division's Environ-
mental Enforcement Section is EPA's attorney for litigation of Superfund cases. DOJ
participates fully in negotiations, litigation, and enforcement strategy development. DOJ
representatives participate on the negotiations team. The DOJ attorney represents DOJ
views on the case and is responsible for providing consistency with and insight into other
enforcement cases. The attorney also provides analysis of the litigation risks of going to
trial. DOJ concurrence is required for all RD/RA or RA Consent Decrees and for cost
recovery or de minimis Administrative Orders in which total site response costs exceed
$500,000. The DOJ attorney and appropriate management review the initial draft of the
Consent Decree before it is sent to the PRPs, as well as subsequent redrafts. DOJ case
attorneys are essential legal resources for the RPM and assistant Regional counsel. Close
coordination and communication with DOJ is important for successful negotiation and
litigation of Superfund cases.
RPMs should remember that the information gathered in the initial stages of site cleanup,
such as during the PRP Search and in preparation for RI/FS negotiations, may be used later
in litigation concerning the site.
The Environment and Natural Resources Division's Litigation Support Group is available
to consult with EPA regarding information management services that are available and
how those services can be tailored to best serve a situation at a particular site.
For further information, call the Litigation Support Group at 202-616-3354.
Headquarters has delegated authority to the Regional Administrators for RD/RA settle-
ments under the following conditions:
• With no Headquarters concurrence or consultation required if the settlement is a -
Section 106 or 106/107 RD/RA settlement in which response costs do not exceed
$30 million and the settlement is not in a category summarized below.
- RI/FS settlement
Settlement of civil judicial penalties under section 104 or 109
• With Headquarters consultation required -
Section 106 or 106/107 RD/RA settlements in which response costs are between
$30 and $60 million
Settlements that compromise greater than 25 percent and less than 50 percent of
total past and future costs, where the total amount compromised exceeds $2
million
Mixed funding settlements that compromise between 25 and 50 percent of
response costs in which the EPA obligation is greater than $2 million
• Upon attainment of experience by the Region (i.e., Headquarters concurrence
retained on the first of the following types of settlements in each Region) -
- De minimis settlements
Mixed funding settlements
• With Headquarters concurrence retained; delegation to Region to be reviewed in
the future -
Section 106 and 107 settlements in which total and future response costs exceed
$60 million
4- RD/RA Negotiations/Settlement
-------
Settlements that compromise greater than 50 percent of the total past and future
costs, and mixed funding settlements that require 50 percent or more contribution
by the U.S. where that contribution is greater than $2 million
Multi-Regional or nationally-managed cases, including bankruptcies
Settlements based upon extraordinary circumstances that purport to grant cov-
enants not to sue without limitations as to future liability (section 122(f)(6)(B))
Precedent setting cases (e.g., certain municipalities as generators, dioxin, sub-
stantial deviations from Agency policy)
Settlements involving section 122(f)(2) special covenants not to sue
Settlements of proofs of claim in bankruptcy actions
Settlements presenting issues that have not been expressly delegated (e.g., settlements
that include civil penalty or treble damages liability)
Settlements of actions for access to property under section 104
Settlements of information request actions under section 104.
For further information on Regional authority, consult OSWER Directive 9012.10-a,
"Revision of CERCLA Civil Judicial Settlement Authorities Under Delegations 14-13 B
and 14-14 E (June 17,1988).
References
OSWER Directive 9260.5-02A, "Clarification of Delegations of Authority 14-14-A, 14-
14-B, and 14-14-C Under CERCLA" (April 4,1990).
OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1988).
OSWER Directive 9834.3, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OE, "CERCLA RD/RA Settlement Negotiations Checklist" (January 26,1988).
OE, "Model Consent Decree Implementation" (August 1991).
RD/RA Negotiations/Settlement-5
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Section II. Procedures and Interactions
A. Regional Decision to
Pursue RD/RA
Negotiations
The Regional decision to pursue RD/RA negotiations must be planned in the prior-year
SCAP commitments to allow the Agency to define the resource needs for the Region.
Regions should use the annual SCAP process and quarterly updates to identify those sites
that are likely to progress to RD/RA negotiations in the current fiscal year and the planned
fiscal year. Sites at which RODs are expected are considered the initial pool of prospects
for RD/RA negotiations.
The RPM and assistant Regional counsel are the lead technical and legal negotiators,
respectively, on the negotiation or case team, hi addition, the RPM is usually responsible
for developing a budget estimate of post-RI/FS support needs during RD/RA negotiations.
The Regional CERCLA section chief and case team have responsibility for notifying
Federal natural resources trustees, States, DOJ, OWPE, OE, and the relevant technical
support personnel of the Region's intent to pursue RD/RA negotiations in the planned
fiscal year. The decision to conduct RD/RA negotiations should be entered as a planned
SCAP target.
Review PRP Search
During the RI/FS, and prior to initiation of negotiations for PRP conduct of RD/RA
activities, the negotiation team should review the results of PRP search activities at the site
and identify follow-up activities that may lead to identification of additional PRPs or
improved evidence about the volume, substances, liability, or financial viability relating to
previously identified PRPs. The potential role of newly identified PRPs should be consid-
ered in developing the negotiation plan.
B.
Negotiation
Planning
Negotiations for which EPA is fully prepared, especially with well established plans,
schedules, and deadlines, are much more likely to result in a signed Consent Decree than
negotiations for which EPA has not adequately planned. A suggested RD/RA negotiation
planning schedule is presented in Exhibit VIII-3. The essential elements of negotiation
planning are discussed below.
RD/RA Negotiation
Plan
The RD/RA negotiation plan is one major component of the site management plan, as
described in Chapter III, Comprehensive Site Planning. The object of the plan is to assist
the RPM in effective management of the RD/RA negotiation process and increase the
likelihood of achieving PRP settlements for RD/RA. The detailed RD/RA negotiation
plan, in combination with the site overview and other existing components of the site
management plan (PRP search plan, RI/FS negotiation plan) should comprise the pre-
referral litigation report.
The RPM and assistant Regional counsel should prepare an RD/RA negotiation plan that
outlines the negotiation objectives and strategy. The RD/RA negotiation plan is a vehicle
to assist in planning specific goals and objectives for the negotiations. The plan should
address, at a minimum, the following topics:
* Brief update of case status, including current status of site response activities, site
enforcement activities, and their relation to overall site objectives
* PRP search assessment, including assessment of completeness (identification of all
PRPs; information on volume/nature of substances from each PRP), tracking systems,
strength of evidence, financial viability of PRPs, liability theories, and PRP defenses
* Cost Recovery, including plan for updating documentation and recovery of past costs
to date and estimates of future oversight costs, an assessment of Statute of Limitations
(SOL) issues, computation of interest claims, demand for past costs in special notice
6- RD/RA Negotiations/Settlement
-------
Exhibit VIII-3
Sample RD/RA Negotiation Planning Schedule
Schedule With Respect
To Planned Negotiation
Start Date
PRP Search Assessment
Initiate at least 3 quarters prior to start date to allow
for supplemental activities. Conclude supplemental
activities no later than 5 months before start date.
Request cost-recovery documentation
Complete checklist 2 quarters prior to start date.
At least 4 months prior to start date.
Decision to pursue negotiations
Final PRP search evaluation
Evaluate schedule in terms of STARS
commitments and construction season
Assess cost recovery case
Develop negotiation plan
Implement negotiation plan
At least 3-1/2 months prior to start date.
Initiate at least 1 quarter prior to start date.
-------
or demand letter, assessment of any weaknesses in past costs, relationship of past costs
to overall settlement, and litigation alternatives for costs if non-settlors exist or
negotiations are unsuccessful
* Remedy selection plan and review of Administrative Record, including identification
of participants in RI/FS and ROD preparation, and, if the ROD is not signed, detailed
timeline for ROD preparation, public participation in the remedy selection process,
review of Administrative Record, and overall coordination with enforcement case
development and negotiations
+ Special notice letter preparation and review (with volumetric attachment)
* Consent decree preparation and review, including technical deliverables and sched-
ules
* Plan for negotiation positions and for obtaining approval for negotiations and overall
tactics to achieve these objectives. Review of volumetric shares, non-viable parties,
strength of evidence, appropriateness of de minimis and/or mixed funding settlement,
and criteria for evaluating good faith offers. Possible re-examination of positions, if
there are some settlors and some viable non-settlors
•» Procedural strategy for carrying out negotiations, including discussions with steering
committee; timing of special notice; drop-dead dates; draft Consent Decrees; devel-
opment of work plans; oversight plan; and associated response needs
* Enforcement strategy and schedule for actions should negotiations not result in a
settlement within established timeframes. These may include section 106(a) UAOs
or judicial actions
* Funding strategy (RD and RA may be separate) and schedule if case does not settle,
including an analysis of State cost share issues
* Schedule for major milestones with specific case team assignments for managing and
performing task accompli shments
* Resource needs.
The RD/RA negotiation plan also is discussed in Chapter III, Comprehensive Site Plan-
ning.
Draft Consent
Decree
The terms and conditions governing the RD/RA or RA activities of PRPs are specified in a
Consent Decree (CD). The case team should prepare a draft CD as part of the negotiations
planning activities. A model CERCLA CD has been prepared (OSWER Directive
9835.16, "Model CERCLA RD/RA Consent Decree. Exhibit VIII-4 presents the elements
outlined in the model CD. Nine of the clauses of the Model CD - site access, dispute
resolution, covenants not to sue, additional response actions, indemnification, contribution
protection, force majeure, certification of completion, and stipulated penalties - are
considered "sacred clauses." This means that any deviation from the model language for
these clauses must be concurred on by OE and OWPE at Headquarters. The concurrence
of appropriate EPA and DOJ management on the draft decree should be obtained before it
is sent to the State or the PRPs. See Exhibit VIII-5 for the timeframes in which this
consultation/concurrence should occur.
The following is a more detailed discussion of two specific elements of CDs—covenants
not to sue and reopeners. These are two frequently disputed provisions in RD/RA settle-
ments in which the RPM may not have had prior training.
Covenants Not to Sue Under section 122(f)(l), EPA may grant covenants not to sue (covenants) for both present
and future liability to settling PRPs. In general, present liability refers to the PRPs'
obligation to pay response costs already incurred by the Agency and to complete those
remedial activities set forth in the ROD. Future liability refers to the PRPs' obligation to
RD/RA Negotiations/Settlement-?
-------
perform any further response activities that are necessary to protect human health or the
environment that arise after the ROD is signed.
Generally, PRPs do not receive broad covenants not to sue (which sometimes are referred
to as releases from liability). PRPs will be released from past costs if they pay them or,
depending on the provisions of the settlement, may be released if past costs are deferred to
non-settlors. Under most RD/RA Consent Decrees, PRPs are liable for implementation of
the ROD, O&M, and oversight, and a covenant not to sue becomes effective for these upon
payment of past costs, but is contingent upon complete and satisfactory performance by
settling PRPs. They remain committed to undertake any further response action required
by the CERCLA section 121(c) five-year review.
Assuming CERCLA section 122 (f)(l) conditions are met, EPA must provide special
covenants not to sue in two cases:
* If EPA selects a remedial action involving off-site disposal after rejecting a PRP
proposal to conduct an on-site remedy that fully complies with the NCP requirements
«• If the remedy involves treatment of hazardous substances and treatment of by-products
that destroy, eliminate, or permanently immobilize each of the substances such that,
in the judgment of EPA, neither the substances nor the byproduct of treatment present
any current or future significant risk. Examples of such treatment technologies may
include biodegradation and incineration.
Special covenants not to sue without reopeners also may be provided under extraordinary
circumstances, which are limited. Only the Natural Resource Trustee may authorize
covenants not to sue for natural resource damages.
Covenants not to sue for future liability take effect upon certification that the remedial
action has been completed in accordance with the terms of the ROD and in a manner
consistent with the NCP. Chapter XI, Site Completion/Deletion, contains more detailed
information on certifying the completion of remedial activity at a site. For further informa-
tion on covenants not to sue and model covenants, consult OSWER Directive 9834.8,
"Covenants Not To Sue Under SARA" (July 10,1987) and OSWER Directive 9835.17,
"Model CERCLA RD/RA Consent Decree" (June 21, 1991).
Reopeners Reopener provisions allow EPA to bring an administrative or judicial action against a PRP
for injunctive relief or for additional response costs incurred at the site where previously
unknown conditions or information indicate that the remedy is no longer protective of
human health and the environment.
The operative principle is the development of new scientific information that shows that
the site presents a problem not addressed satisfactorily by the remedy. This does not mean
that the development of new remedial technologies is a basis for reopeners. Further
information on reopeners can be found in OSWER Directive 9834.8, "Covenants Not to
Sue Under SARA" (July 10, 1987).
C. Notification of
States and Federal
Natural Resources
Trustees
Section 121(f)(l) of CERCLA provides for notice to the State of negotiations. In addition,
section 122(j)(l) requires that if a release or threat of release at a site may have resulted in
damages to natural resources, EPA must notify the appropriate Federal or State trustees
and provide them with an opportunity to participate in the negotiations. The RPM is
responsible for notifying the State and both the Federal and State trustees. Settlements that
specifically provide for remediation of natural resource damages, or determine that there
were no such damages and grant a covenant not to sue, must be made with the agreement
of the appropriate trustee. Resolution of these issues is often important to PRPs who may
decline to sign a decree without resolution. For further information on notification proce-
dures and negotiation interactions with Federal and State trustees, refer to Chapter V, RI/
FS Negotiations/Settlement.
8- RD/RA Negotiations/Settlement
-------
Exhibit VI11-4(1)
Provisions in Model Consent Decree
I Background
II. Jurisdiction
III. Parties Bound
IV. Definitions
V. General Provisions
VI. Performance of the Work by Settling Defendants
VII. Additional Response Actions/Failure to Attain Performance Standard
VIII. EPA Periodic Review to Ensure Protection of Human Health and Environment (section 121(c))
DC Quality Assurance, Sampling, and Data Analysis
X Access
XI. Reporting Requirements
XII. Submissions Requiring Agency Approval
XIII. Remedial Project Manager/Project Coordinators
XIV. Assurance of Ability to Complete Work
XV. Certification of Completion
XVI. Emergency Response
XVII. Reimbursement of Response Costs and Oversight Costs
XVIII. Indemnification and Insurance
XIX Force Majeure
XX. Dispute Resolution
XXI. Stipulated Penalties
XXII. Covenants Not to Sue by Plaintiffs
-------
Exhibit VIII-4(2)
Provisions in Model Consent Decree
XXIII. Covenants by Settling Defendants
XXIV. Effect of Settlement; Contribution Protection
XXV. Access to Information
XXVI. Retention of Records
XXVII. Notices and Submissions
XXVIII. Effective Date
XXIX. Retention of Jurisdiction
XXX. Appendices
XXXI. Community Relations
XXXII. Modification
XXXIII. Lodging and Opportunity for Public Comment
XXXIV. Signatories/Service
-------
Exhibit VIII-5
Timeline for CERCLA Pre-Referral Negotiation Procedures (In Days)
Pre-Referral Lit.
Report & Consent
Decree Sent to:
-DOJ
-OE
-OWPE
"Final" Draft CD
to DOJ & HQ2'
Final CD to
DOJ & HQ
DOJ Moves for Entry of CD (If no
significant comment)
DOJ Lodges CD;
Notice in Fed. Reg.
DOJ & HQ
Response2'
HQ & DOJ
Comments to
Region
AO Complied
With?
Monitor AO
Compliance
Settlement in
Principle?17
Enforce AO?
Full Lit. Report
to DOJ/HQ
(ASAP)
DOJ Files
Complaint
Full Lit. Report
to DOJ/HQ for
Cost Recovery
& Penalties/
Damages
Proposed CD
to PRPs
Region Issues
Unilateral AO
Funds
Obligated
DOJ Files
Complaint
I/ Closure reached within 120-180 days on all fundamental terms of settlement and most language
of a final consent decree.
2/ HQ participates to the extent prescribed in CERCLA settlement delegations.
3/ Includes 21 days for HQ concurrence/consultation as prescribed in CERCLA settlement
delegations.
-------
D. Special Notice
Letters
Section 122 of SARA authorizes EPA to issue special notice letters (SNLs) to begin a
formal negotiation period with the PRPs. The primary purposes of the special notice
procedures are to facilitate settlements for RD/RA through direct negotiations with PRPs
and to expedite cleanups. Prior to issuance of the SNL for RD/RA, PRPs should have
been provided information on all PRPs' involvement at the site, should have coalesced,
and should be familiar with the remedial investigation and the remedial alternatives.
Contents ^e ^^ should contain the following information:
+ Notice of the potential liability of the PRP
* The purpose of the SNL and the conditions of the negotiations moratorium
* Description of future response actions, if known
* Description of the elements of a good faith offer
* Statement of work to be performed
+ Additional information, including information on other PRPs, fact sheets on the site,
volumetric ranking of substances at the facility, and a list of the volume and nature of
substances contributed by each PRP
+ Demand for payment of past costs
* The date when a good faith offer is due.
The SNL should include as attachments a copy of EPA's proposed plan or the ROD, if
signed, a draft Consent Decree for the RD/RA, and a draft RD/RA statement of work.
To the extent possible, the SNL should contain specific information to assist the PRPs in
developing a good faith offer. This includes information stipulating the minimum ele-
ments of an acceptable good faith offer and what the Region will not accept. Minimum
requirements for GFOs are discussed later in this chapter.
Headquarters has developed model special notice letters (OSWER Directive Number
9834.10A, "Model Notice Letters," February 7, 1989) which most Regions have tailored
to their own use.
The ORC should notify the Chief of the Environmental Enforcement Section at DOJ and
provide a pre-referral litigation report 60 days prior to issuing SNLs where settlement by
Consent Decree is anticipated. A copy of the pre-referral litigation package should be sent
to OE and OWPE. The memorandum should include information about when the SNL
will be sent and include the draft CD for DOJ review. The draft CD also should be made
available for OE and OWPE review, especially if it is anticipated that the settlement will
require Headquarters consultation or concurrence.
Copies of the SNL should be sent to the appropriate State representative, the Natural
Resource Trustees, the Regional Administrative Record Coordinator and OWPE (unless
the Region has previously provided a copy of a general notice letter with the particular
PRP as a recipient. OWPE will enter the PRP into the Superfund Enforcement Tracking
System (SETS).
Cosf Recovery The negotiations should include negotiations for any past costs, such as costs of a removal
or Fund-lead RI/FS. RPMs should refer to Chapter XII, Cost Recovery, for information on
the different types of costs, which include indirect, direct, pre- and post-SARA, interest,
and the required documentation for recovering these costs. The RPM needs to request cost
documentation from the Regional Financial Office at least 90 days in advance of issuing
the SNL. Once this documentation is received, the RPM should provide it to the PRPs so
that they will have EPA's cost information available to them.
RD/RA Negotiations/Settlement-9
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Timing the SNL The SNL should be sent between the time the draft Proposed Remedial Action Plan and
feasibility study are released for public comment and when the ROD is issued or shortly
thereafter. The timing strategy will strike a balance between EPA's ability to conduct
meaningful negotiations and minimize delay in implementing the RD/RA. It is not
appropriate to delay issuance of SNL for months after the ROD. The negotiation schedule
should take into account any obligation of Fund monies for RD/RA activity at the site. It
should be noted that RD/RA negotiations with PRPs that occur while the ROD is being
written or amended may not address matters related to the selection of the remedy.
Furthermore, negotiations must be conducted in a way that does not undermine the public
participation process. Because the Proposed Plan has been released, the PRPs will be able
to incorporate the possible range of remedial alternatives into the good faith offer.
Section 122(a)
Letters
If EPA decides not to use the special notice procedure, the RPM must send a letter to PRPs
in accordance with section 122(a) of CERCLA stating why EPA has decided to forego the
formal negotiations period. Situations in which it would not be appropriate to use the
special notice procedures, because it would not facilitate agreement or expedite cleanup,
may include the following:
* Past dealings with the PRPs indicate that they are unlikely to negotiate a settlement
* EPA believes the PRPs have not been negotiating in good faith
4 No PRPs have been identified in a PRP search reviewed by the civil investigator and
assistant Regional counsel
* PRPs lack the resources to conduct response activities
* There are on-going negotiations with deadlines specified in a letter (i.e., on-going
cases where negotiations would not be further expedited by the SNL process).
If additional PRPs are identified after the issuance of SNLs, the RPM may include them in
on-going negotiations or, if there is a partial settlement, negotiate a separate agreement.
This is a case-by-case decision. SNLs may be sent for a single operable unit or for the
entire RD/RA, depending on the remedy documented in the ROD and Regional policy.
Guidance on special notice letters is contained in OSWER Directives 9834.10, "Interim
Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19,1987)
and 9834.10A, "Model Notice Letters" (February 7,1989).
E. Good Faith Offer
(GFO)
PRPs are usually given 60 days from the special notice to provide the Agency a good faith
proposal for implementation of the RD/RA. The following list of minimum requirements
for good faith offers should be used to help maintain national consistency:
* A statement of the PRP's willingness to conduct or finance the RD/RA that is
consistent with EPA's Proposed Remedial Action Plan or the ROD, if it has been
issued, or that provides a legitimate basis for further discussion. While a proposal with
variations on EPA's chosen/preferred remedy does not always mean that an offer is in
bad faith, it is at the very least not preferred. If, as a matter of course, EPA frequently
reopens remedy discussions there will be fruitless negotiations and undue delays
* A response to EPA's draft Consent Decree that identifies and prioritizes the major
concerns of the PRPs and that provides site-specific justifications for any changes
proposed
«• A demonstration of the PRP's technical and financial capability to perform the work,
including a list of potential contractors and their qualifications
* A statement of the PRP's ability and willingness to reimburse EPA for past response
(or if not, why referral to non-settlors is appropriate) and oversight costs
+ A discussion of the PRP's position on release from liability and reopeners to liability.
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To encourage PRPs to submit acceptable good faith offers, the RPM must take an active
role in educating the PRPs. Regional minimum requirements for good faith offers should
be stipulated in detail in the special notice letters. The RPM should maintain frequent
contact with the PRPs or steering committee representatives regarding development of a
good faith offer.
For further guidance on good faith offers, refer to OSWER Directive 9834.10, "Interim
Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19,1987)
and OSWER Directive 9834.10A, "Model Notice Letters" (February 7,1989).
Negotiation
Extensions
Issuance of the SNLs triggers a moratorium on EPA's conduct of certain actions. The
intent of the moratorium period is to place a statutory deadline on the formal negotiation
period to encourage settlement. The initial negotiation moratorium may last for a total of
120 days in RD/RA negotiations. If EPA does not receive a good faith offer within the
first 60 days of the SNL, the negotiation period will terminate. If a good faith offer is
received, the negotiations may continue for another 60 days. Firm schedules tend to force
issues to resolution. Negotiations may be extended for 30 days with Regional Administra-
tor approval and additional extensions may be granted with AA, OSWER approval.
For further information on extensions refer to OSWER Directive 9834.10, "Interim
Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19,1987)
and OSWER Directive 9835.4, "Interim Guidance on Streamlining the CERCLA Settle-
ment Process" (February 12,1987).
F.
Settlement
Incentives/
Disincentives
The settlements incentives/disincentives concept is an approach to RD/RA settlements that
indicates EPA's willingness to enter into partial settlements with those willing to settle,
particularly if they will conduct the cleanup, and EPA's willingness to pursue viable non-
settlors for the remainder. The concept does not apply to single owner-operator sites.
The settlements incentives/disincentives concept continues EPA's goal of recovering 100
percent of site costs and preference for pressing for a close-to-100 percent settlement with
some or all PRPs. Nonetheless, in some multi-party cases where most viable PRPs are
willing to settle but some are not, as an incentive to those willing to settle EPA may enter
into a partial settlement with the willing parties and pursue the remaining parties for the
remainder of the site costs. In determining how much the settlors should pay, the interim
CERCLA settlement policy should be applied. At a minimum, the settlors usually should
pay more than their volumetric share to take into account non-viable, non-settlors and
evidentiary deficiencies regarding viable non-settlors. Also, mixed funding and de
minimis settlements and NBARs should be used in appropriate cases.
The settlement incentives/disincentives approach also recognizes the use of disincentives
to the use of dilatory tactics in negotiation and to the refusal of all or some PRPs to settle.
Section 106(a) UAOs are a powerful management tool to encourage parties that are
somewhat willing to settle but are delaying resolution of negotiations. More generally,
section 106(a) UAOs are also a disincentive to non-settlement because failure to comply
with them may result in penalties under section 106 or treble damages under section 107.
Where there is a partial settlement, it is very important to file a lawsuit against non-settlors
as soon as possible. In most cases, this is a cost recovery action.
CERCLA
Settlement Policy
EPA's interim CERCLA settlement policy sets forth general principles governing settle-
ments with private parties under CERCLA. The policy recognizes that the objective of
negotiations is to collect 100 percent of cleanup costs from PRPs. The policy also recog-
nizes that in very limited circumstances exceptions to this goal may be appropriate, and
establishes criteria for determining where such exceptions are allowed. The ten criteria
are:
RD/RA Negotiations/Settlement-l I
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1. Volume of Wastes Contributed to Site by Each PRP. The volume of waste may
contribute significantly and directly to the distribution of contamination on the surface
and subsurface ground water. At many sites, there will be wastes for which PRPs
cannot be identified. If identified, PRPs may be unable to provide funds for cleanup.
The volume of wastes is not the only criterion to be considered. Therefore, it will be
necessary, in many cases, to require a settlement contribution greater than the
percentage of wastes contributed by each PRP to the site.
2. Nature of Wastes Contributed. If a waste contributed by one or more of the parties
offering a settlement disproportionately increases the cost of cleanup at the site, it may
be appropriate for parties contributing such waste to bear a larger percentage of
cleanup costs than would be the case using a solely volumetric basis.
3. Strength of Evidence Tracing the Wastes at the Site to the Settling Parties. Where
the quality and quantity of the Government's evidence appears to be strong for
establishing the PRP's liability, the Government should rely on the strength of its
evidence and not decrease the settlement value of its case. If the Government's
evidence against a particular PRP is weak, that weakness should be weighed in
evaluating a settlement offer from that PRP.
4. Ability of the Settling Parties to Pay. The evaluation of the settlement proposal should
discuss the financial condition of the party and the practical results of pursuing a party
for more than the Government can hope to actually recover.
5. Litigative Risks in Proceeding to Trial, including:
a. Admissibility of the Government's evidence
b. Adequacy of the Government's evidence
c. Availability of defenses.
6. Public Interest Considerations. For example, if the State cannot fund its portion of
a Fund-financed cleanup, a private-party cleanup proposal may be given more
favorable consideration than one received in a case where the State can fund its portion
of cleanup costs. Public interest concerns may be used to justify a settlement of less
than 100 percent only when there is a demonstrated need for a quick remedy to protect
public health or the environment.
7. Precedential Value.
8. Value of Obtaining a Present Sum Certain. The sum offered in settlement may be,
in reality, higher than the amount the Government can expect to obtain at trial.
9. Inequities and Aggravating Factors.
10. Nature of the Case that Remains After Settlement. All settlement evaluations should
address the nature of the case that remains if the settlement is accepted. For example,
if there are no financially viable, liable parties left to proceed against for the balance
of the cleanup after the settlement, the settlement offer should constitute everything
the Government expects to obtain at that site.
H. SettlGfTlGnt TOOlS Tne negotiation team has several important settlement tools that can help achieve PRP
settlements. These include:
* Mixed funding settlements
* De minimis settlements
* NBARs
Each of these settlement tools is discussed in detail in this section.
12- RDIRA Negotiations/Settlement
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Mixed funding agreements are settlements whereby EPA settles with fewer than all PRPs
for less than 100 percent of the response costs and there are additional measures to ensure
that the response action is done. There are three types of mixed funding settlements:
* Preauthorization - Settling PRPs agree to conduct the response action and the
Agency agrees to pay for part of the response costs by approving in advance the basic
elements of a claim by settling PRPs against the Fund
* Mixed Work - PRPs conduct discrete parts of the response activity while EPA
conducts the remainder
* Cash Outs - Settling PRPs pay a portion of the response costs and the Agency
conducts the response action.
Mixed Funding Once the PRPs have indicated their interest in pursuing a mixed funding settlement, the
Settlements Region should evaluate the case against the ten-point settlement criteria which include, in
this context, the following:
* The PRPs are in general agreement with the remedy
+ A substantial part of cleanup (> 50 percent) is offered by settling PRPs
* The settlors' part of the cleanup is proportionate to or greater than a combined
allocation of the settling PRPs
* Strength of liability case against and viability of the PRPs (settlors and non-settlors)
* Amount of waste contributed to the site by settlors and viable non-settlors compared
to their relative settlement share
+ Other options are available if settlement fails.
The best candidates for mixed funding are cases in which the following features are
present:
+ The potential portion or operable unit to be covered by the Fund is small, or the settling
PRPs offer a substantial portion of the total cost of cleanup, hi this context, substantial
portion may be defined as a commitment by the PRPs to undertake or finance a
predominant portion of the total remedial action
«• The Government has a strong case against financially viable non-settling PRPs, from
which the Fund portion may be recovered.
Cases considered poor candidates for mixed funding have the following features:
* The potential Fund portion is large (e.g., the potentially-settling parties' offer is
insufficient)
• The case against settling parties is strong and the case against the non-settlors is not
strong, and thus litigation is likely to be more successful.
These factors do not automatically preclude mixed funding for a case. However, for
mixed funding to be seriously considered in such instances, other compensating factors
must be present, such as the ability of the settlors to initiate the response action more
quickly than the Government in a Fund-financed action. The following sections discuss
the three types of mixed funding settlements and factors to be considered in choosing a
particular type of mixed funding settlement.
After the Region completes an evaluation of the case and determines that it is a good
candidate for mixed funding, the RPM notifies OERR (if Fund dollars are involved, as in
preauthorization), OWPE, OE, and DOJ.
When developing cost allocations for mixed funding settlement proposals, the case team
should carefully evaluate the governmental contribution to the cleanup or outstanding
work and the strength of the case against non-settlors, including an analysis of liability,
viability, and amount contributed to the site. The case team should be careful to avoid a
RDIRA NegotiationslSettlement-13
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proposal with fixed division of costs between the settlors and the Government. This may
result in "over-subscription," where all PRPs or more PRPs than anticipated accept EPA's
proposed cost allocation. This could leave EPA with too small a settlement and too few
viable or liable non-settlors left including an action where the non-settlors share would be
grossly disproportionate to their contributions. To avoid "over-subscription" the case team
should develop a sliding scale settlement proposal, where settlement amounts vary depend-
ing on the volumetric percentage of PRPs signing on as settlors. The work products of the
Settlement Incentives/Disincentives Workgroup contain further information on developing
cost allocations for mixed funding settlements.
Preauthorlzatlon "Preauthorization" refers to the approval granted by EPA prior to cleanup actions if a PRP
claim against the Fund for response costs is to be considered. Preauthorization represents
EPA's commitment that, if response activities are conducted pursuant to the settlement
agreement and the costs are reasonable and necessary, the PRP will be reimbursed from the
Fund as set forth in the settlement.
The initial analysis is to determine whether the site is a proper candidate for a
Preauthorization mixed funding settlement, hi addition to the points listed above that
identify potential candidates for mixed funding, the nature of the proposed remedy and the
PRP's ability to perform it should be considered carefully in assessing a settlement offer
that involves preauthorization. The size of the PRP's portion of cleanup responsibility also
should be considered. When PRPs commit to pay for a sufficiently high percentage of
cleanup costs, they have a strong economic incentive to keep actual response costs within
or close to estimates. Additionally, the urgency of the threat posed by the site may influ-
ence the decision to agree to preauthorization, if preauthorization would expedite response
activities. Prompt initiation of remedial action would be of particular importance for sites
that are not currently scheduled for full Fund financing.
Additionally, the preauthorization agreement must be approved by OERR. The OERR
evaluation with regard to preauthorization is separate and distinct from the evaluation of
the settlement performed by OWPE. In preauthorization agreements, the PRPs prepare a
preauthorization proposal for Regional review. The RPM's early notification to OERR
and OWPE of the PRP's intention to pursue preauthorization is crucial to the timeliness of
Headquarters' review of the proposal and the development of the Preauthorization Deci-
sion Document (PDD). After reviewing the settlement according to the ten-point settle-
ment criteria set forth in the Interim Settlement Policy, the RPM forwards the
preauthorization proposal to OERR's Hazardous Site Control Division, State and Local
Coordination Branch, State Requirements Section and the OWPE CERCLA Compliance
Branch. Both Headquarters offices work jointly with the Region in reviewing and approv-
ing the PRP's submittal. The Region must also notify DOJ and ensure that the case is
entered into CERCLIS/WasteLAN.
The Region should consider and plan for the amount of time necessary to process
preauthorization applications and the urgency of site conditions when conducting negotia-
tions. Although EPA has set a goal of completing review of individual preauthorization
requests within a 45-day period, this time period will vary between submittals.
Preauthorization approval is documented in a Preauthorization Decision Document (PDD),
prepared by EPA. PDD contents include:
* A short history of contamination at the site, and the various efforts to rectify the
problem
* A summary of the analysis performed by EPA in granting prior approval
* A summary of any issues unresolved at the time of PDD issuance
* A statement of "terms and conditions" that the applicant must meet for the
preauthorization to remain valid.
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The PRP may not begin work until the FDD is effective. The FDD is effective only when
it has been signed by the Director, OERR (by delegation from the AA, OSWER) and the
consent decree has been entered. The FDD describes standards to be met if the PRP is to
receive full reimbursement. In certain circumstances, a claim will be preauthorized
contingent on later Agency approval of elements.specified in the PDD.
Section 122(b)(4) of CERCLA states that, for cases involving preauthorization, the Fund
will assume costs of remedy failure up to a proportion equal to that contributed for the
original remedial action. In the event of remedy failure, the Fund portion may be met
either through Fund expenditures or by recovering costs from PRPs that were not part of
the original settlement. The covenant not to sue does not apply if the remedy fails due to
PRP negligence.
Mixed Work Mixed work settlements allow EPA and the PRPs to conduct discrete portions of the
response activity. In mixed work settlements, EPA encourages PRPs to conduct the RA.
Mixed work settlements are appropriate in cases where mixed funding is being considered
and the following conditions exist:
+ The Region is reasonably certain of PRP cooperation
* Coordination of activities with PRPs does not present problems
* The RPM can identify, in detail, individual activities for which each party will be
responsible.
In addition, CERCLA section 104(c)(3) requires that the State pay or ensure payment of
10 percent of the RA, or 50 percent or greater if it's a State-operated facility. The PRPs
may enter into an agreement with the State and EPA under State law and CERCLA where
the PRPs pay 10 percent to the State and the State obligates funds for use at the site; or the
State may use its own funds to pay for any portion of its share that cannot be paid for by
PRPs. In either case, EPA and the State should enter into a State Superfund Contract
(SSC) to ensure cost share and O&M responsibilities. Mixed work and cash outs (dis-
cussed below) should not be considered unless the State's cost share is reasonably certain.
Once mixed work is identified as a potential settlement alternative, OWPE and DOJ
should be notified.
Cash Out Cash-out settlements require the PRPs to pay for a portion of the response costs up front,
while EPA conducts the response action. Cash-out settlements are not preferred. Cash-out
settlements with PRPs generally involve some of the following factors:
* EPA is very confident about the expected RD/RA response costs
+ The cash out will advance work at the site that might not proceed without the
settlement funds
* The percentage of the total costs to be paid by settlors is substantial, unless there are
major liability or financial viability concerns
* The Agency has carefully evaluated evidentiary concerns regarding liability and the
value of the settlement and in light of substantial litigation risks believes that
settlement is warranted
* Equitable considerations exist for both settling and non-settling parties, including the
nature of any covenants not to sue in the cash-out settlement
+ PRPs lack funds or the ability to secure competent technical support.
The RPM must notify OERR, OWPE and DOJ of Regional intent to pursue a cash-out
settlement. Consultation requirements are the same as for preauthorization settlements. In
general, cash-out settlements may occur at any stage of the remedial process. However,
once Fund-lead response activities are underway, cash-out settlement with some of the
RD/RA Negotiations/Settlement-l5
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PRPs may not be advantageous, since cost recovery generally will be pursued once RA
construction commences. Cash-out settlements may include a risk premium that may
partially offset EPA's risk due to uncertainties, such as remedy failure or cost overruns.
Unlike preauthorization, there are no limitations to PRP liability for costs resulting from
remedy failure in a cash out. Therefore, any future obligations must be specified in the
cash-out agreement, including the covenant not to sue.
De Minimis A de minimis settlement is a final settlement entered into with parties who meet the
requirements of section 122(g)(l) of CERCLA to achieve the goals described below. It is
noteworthy that a de minimis settlement may be incorporated into a global agreement with
the major contributors and EPA. This is beneficial to major contributors because de
minimis money goes to pay for the 2(g)(l )(B) of CERCLA): As the owner of the real
property at which the facility is located, the PRP did not conduct or permit the generation,
transportation, storage, treatment, or disposal of any hazardous substance at the facility,
did not contribute to the release or threat of release of a hazardous substance at the facility
through any action or omission, and the party had no actual or constructive knowledge that
the property was used for the generation, transportation, storage, treatment, or disposal of
any hazardous substance at the time of purchase. (There are similarities between this
provision and the innocent purchaser defense in section 101(35).)
Criteria for Eligibility for A PRP may settle as a de minimis PRP if:
De Minimis Settlements ^ Settlement (per PRP) involves only a minor portion of the response costs at the site
+ Amount contributed by the individual PRP is minimal in comparison to other
hazardous substances at the site
* Toxic or other hazardous effects are minimal in comparison to other hazardous
substances at the site
* Settlement is practicable and in the public interest. EPA should evaluate the overall
case for practicability, including the case against viable non-cfe minimis parties who
may challenge the settlement. Challenges usually are based on amount of payments
by de minimis parties and the basis of those payments.
Necessary Information for *n practice, de minimis settlements generally require:
Generator De Minimis
Settlements
Reasonably accurate and complete PRP waste-in information on waste contributions,
nature of substances, and financial viability to develop a volumetric ranking for
generator PRPs and make adjustments for non-viable shares
That cost estimates for the remedial activities at the site be readily available or easy
to develop, and the degree of uncertainty of these estimates be known
Development of premiums for unknown costs and cost overruns
Identification of remaining viable parties.
Potential De Mlnlmls Candidates Characteristics of potential candidates include the following:
* Good waste-in lists with non-viable shares identified
* Past and future costs identified, premiums developed
* De minimis payment and remaining liability are appropriate.
Sites that do not make good candidates for de minimis settlements include those where:
* Poor volumetric or orphan share information is available
* Costs are highly uncertain
16- RDIRA Negotiations/Settlement
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* Potential de minimis parties have not conferred with major parties and attempted to
settle through them
* Potential de minimis parties are not organized into one group
* Potential de minimis parties are uncooperative in negotiations
+ There are no viable noa-de minimis parties to undertake the response action.
Timing De Minimis Settlements Early de minimis settlements may involve very small contributors at the RI/FS stage, but
most de minimis settlements have occurred at the ROD stage, when costs are known.
Consideration of the potential de minimis settlement includes:
* Refining the volumetric contribution taking into account the assignment of non-viable
PRPs to all viable PRPs
* Determining a volumetric cutoff
* Refining cost estimates, including past costs, RI/FS, RD/RA, and future costs
+ Developing a premium and/or reopeners to reflect the uncertainties of cost estimates
* Presenting the settlement offer, including the model CD or AO, in response to the PRP
proposal or to initiate dialogue, and discussing this settlement offer with potential de
minimis and non-de minimis parties.
Reopeners The need for reopeners is determined on the basis of the certainty of costs and use of
premiums. In very early settlements (RI/FS stage), the reopeners should be more expan-
sive, and/or the premiums should be more substantial. In addition, volume cutoff levels
should normally be set low, so that there can be a cash out based upon large premiums
based on worst case response cost scenarios.
Finalizing Settlement if terms are agreed upon by all parties, the final agreement can be formalized through
either an AOC or CD. A record supporting the settlement must be developed. Under the
June 17,1988 delegations (14-13-B and 14-13-E), the first de minimis generator and the
first de minimis landowner settlements in each Region require Headquarters concurrence.
Additional cases are delegated with Headquarters consultation retained. DOJ concurrence
(and, on a CD, signature) is required for de minimis settlements for sites where the total
response costs exceed $500,000.
References
OSWER Directive 9834.7-1C, "Methodology for Early De Minimis Waste Contributor
Settlements Under CERCLA Section 122(g)(l)(A)" (June 1992).
OSWER Directive 9834.7, "Interim Guidance on Settlements with De minimis Waste
Contributors under Section 122(g) of SARA" (June 19,1987).
OSWER Directive 9834.7-1 A, "Interim Model CERCLA Section 122 (g) (4) De minimis
Waste Contributor Consent Decree and Administrative Order on Consent" (October 29,
1987).
OSWER Directive 9835.9, "Guidance on Landowner Liability under Section 107(a)(l) of
CERCLA, De minimis Settlements Under Section 122(g)(l)(B) of CERCLA, and Settle-
ments with Prospective Purchasers of Contaminated Property" (June 6, 1989).
OSWER Directive 9834.7-1B, "Methodologies for Implementation of CERCLA Section
122(g)(l)(A) De minimis Waste Contributor Settlements" (December 20, 1989).
RD/RA Negoliations/Settlement-17
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Non-Binding Allocation of
Responsibility (NBAR)
An NBAR is an allocation of the total costs of response among the PRPs at a facility.
section 122(e)(3) of SARA allows EPA to develop NBARs and authorizes the Agency to
provide NBARs to the PRPs at its discretion. While NBARs may be useful, the PRPs at
multi-party sites usually undertake the allocation themselves. An NBAR is not binding on
the government or the PRPs and may not be admitted as evidence in court. The costs
associated with Agency preparation of an NBAR are to be paid by the PRPs.
NBAR preparation depends primarily on the type and completeness of volumetric data
available at the site. The NBAR allocation process is based primarily on the volume
contributed by the PRPs, although other factors, such as toxicity and mobility of the
hazardous substances and relative treatment costs may be considered. The allocation
process is dependent on information collected during the PRP search.
The RPM and assistant Regional counsel have primary responsibility for developing
NBARs. NBARs may be prepared, if requested by a substantial percentage of the PRPs.
When prepared, NBARs are usually developed toward the end of the RI/FS, but timing
may vary. NBARs may be provided to the PRPs after completion of the RI/FS. PRPs may
use NBARs to reach agreement among themselves regarding negotiating positions with
EPA. EPA has developed NBARs to facilitate settlements in a few cases (e.g., resolve in
Region I and Hassayampa in Region IX.)
The NBAR allocation of responsibility to each PRP may differ from the volumetric
ranking presented in special notice letters (SNL). Percentages previously associated with
non-viable parties in SNLs are allocated to the remaining financially viable PRPs. In
SNLs, the volume each PRP contributed is presented without adjustments. In NBARs,
volume from non-viable parties and orphan shares is distributed among the known viable
PRPs. This adjusted figure is further modified by the consideration of the following
settlement criteria:
* Strength of the evidence against the PRPs
* Ability of the PRPs to pay
* Litigative risks in proceeding to trial
* Value of obtaining the present sum certain
* Inequities and aggravating factors
+ Nature of the post-settlement case.
Finalizing
Settlement
In order to finalize a settlement within established timeframes it is important to negotiate
during the first 60 days rather than wait for the GFO before talking. Once the good faith
offer has been received, the negotiation team and the PRPs should move quickly to finalize
a settlement. Historically, the most successful method of finalizing settlement has been for
the Government (EPA/DOJ) to develop iterative drafts of the Consent Decree that show
changes on which PRPs comment. This process should provide for rapid identification of
major substantive issues requiring review by other layers of management or more exten-
sive discussion.
It is very important to have the drafts reviewed quickly by all parties because of the tight
negotiation deadlines. It is important to establish and adhere to deadlines. Section 106(a)
UAOs, especially with delayed effective dates, are an effective tool in driving PRPs who
have considerable interest in doing the work but are delaying negotiations to perform the
RD/RA.
The Regional Administrator, in consultation with DOJ, is expected to be the primary
decision maker on CERCLA settlement issues. Headquarters and Regional authority for
finalizing settlements is discussed in the first section of this chapter.
18- RD/RA Negotiations/Settlement
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Referral Package
While the settling PRPs are in the process of signing the Consent Decree, the RPM and
assistant Regional counsel must prepare a referral package for formal transmittal of the
agreement to DOJ. If the settlement has not been delegated, the goal is to ensure rapid
concurrence from Headquarters on the referral package. The referral package must
include:
* Ten point settlement document
* Draft complaint
+ Signed CD (including the technical attachments, such as the statement of work)
* Mini-litigation report (if not previously sent).
The DOJ referral package should identify the relief outstanding, including any past costs,
and identify non-settlors, assess their liability, their contributions to the site individually
and as compared to the settlors (with backup and including percentages), their ability to
pay, and set forth a strategy for pursuing non-settlors. If costs are to be written off or not
pursued, the rationale must be documented. Additionally, OE and DOJ should be notified
of the referral and any non-settlors that will remain after settlement.
The RPM must also identify the resource needs for oversight of the RD/RA and begin
preparations to obtain a third party RD/RA oversight contractor.
For RD/RA settlements that are delegated to the Regions, the completed referral package
must be sent to DOJ, with a copy to OE and OWPE. The preparation of the final referral
package should take approximately 45 days. The final referral package must be signed by
the Regional Administrator. For non-delegated settlements, the settlement is sent to OE
and OWPE with a copy to DOJ. OWPE provides concurrence and sends the referral
package to OE. The AA, OE must formally approve the CD, which is then sent to DOJ for
approval and lodging in the appropriate court. After DOJ formally receives the Consent
Decree, DOJ concurs on the CD and "lodges" it in court. DOJ must also provide notice of
the decree in the Federal Register for a 30-day public comment period. The negotiation
team is responsible for preparing EPA's responsiveness summary to public comments.
Non-settlors may object to the settlement through adverse comments. The negotiation
team should endeavor to anticipate these objections to minimize complications with the
court. The court will review the public comments and EPA's responses before deciding
whether to approve the settlement. Upon approval, the decree is entered as a final judg-
ment of the court.
Exhibit VIII-5 diagrams a suggested timeline for pre-referral negotiation procedures.
Where OWPE and OE have a consultation role, the draft package should be submitted for
review. However, the final package is not required to go physically through the concur-
rence chain.
J. Inducements to
Non-Settlors/
Enforcement Options
If negotiations for PRP implementation of the RD/RA do not result in settlement, the
Agency has several enforcement options. The Regions may issue a section 106(a) UAO,
compelling the PRPs to implement the RD/RA. The Regions also may choose to litigate
the case under section 106 of CERCLA. Section 106(a) UAOs generally precede section
106 referrals. EPA may also use the Superfund to implement the RD/RA and the Govern-
ment may sue PRPs for cost recovery under section 107 of CERCLA. If there is a partial
settlement, depending on the nature of the outstanding relief, the government may use
section 107 or section 106 authorities.
Section 106(a) UAOs Tne ReSional Administrator is authorized to issue section 106(a) UAOs to compel the
PRPs to implement the RD/RA. PRPs have a strong incentive to comply, since sections
106 and 107 authorize a court to assess penalties as well as treble damages for non-
compliance without sufficient cause. Section 106(a) UAOs require a showing of imminent
and substantial endangerment.
RD/RA NegotiationslSettlement-l 9
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The Region should be prepared to issue a UAO if the PRPs fail to provide a good faith
settlement offer by the end of the first 60 days of the special notice moratorium, or if it is
clear that no settlement will be achieved in the negotiation timeframe allowed. In addition,
unless an extension of the negotiation period beyond the 120 day moratorium is justified
by an agreement in principle and substantial progress in finalizing a Consent Decree, a
planning goal should be to issue a UAO promptly after the 120 day moratorium expires.
If Regions are planning an RD start at a site but do not anticipate issuing a UAO, they
should consult with HQ and describe their reasons for not issuing the UAO.
The issuance of unilateral orders must be considered before a Fund-financed response can
proceed at a site. Unilateral orders are typically issued at the end of the special notice
period if settlement is not reached at a site, an extension of negotiations is not warranted,
and the case meets statutory criteria and case specific considerations set forth in this
guidance.
In general, present owners and operators and viable past owner(s) and operator(s) of the
site at the time of disposal should be named as respondents. At a minimum, the present
owners and operators must provide access. The Agency will also generally consider
naming parties who arranged for disposal or treatment of hazardous substances. When
there are multiple PRPs, the Agency may consider the aggregate volume (percentage of
total) and aggregate financial viability of all the PRPs to be named. When evaluating
whether to name an individual PRP in an order, the PRP's contribution to the site (volume
and nature of substances) and financial viability should be considered. The Agency should
consider naming the largest manageable number of parties. Relevant evidentiary concerns
also must be considered when deciding which PRPs to name in an order. In addition,
consideration should be given to whether potential respondents will have a valid "suffi-
cient cause" defense or a section 107(b) defense. Parties who would clearly have a valid
defense to an EPA action following the parties' failure to comply should not be named in
the unilateral order.
Enforcement Under a joint and several liability scheme, the Agency has discretion when deciding whom
Discretion to P1118116 m m enforcement action. An example of how "enforcement discretion" may be
used is reflected in the Residential Homeowner's Policy. The policy states that owners or
lessees of residential property located on Superfund sites will not be required to perform
response actions or pay response costs except where the residential homeowner's activities
lead to a release or threat of release of hazardous substances, resulting in the taking of a
response action at the site. However, owners of residential property who do not use the
property for residential purposes or fail to comply with other CERCLA obligations are
outside the scope of this policy.
Section 106 The Regional Administrator may decide to refer the case to DOJ for section 106 litigation.
Litigation The Region must prepare a referral package. The referral package is similar to that
described in Chapter XII, Cost Recovery.
Section 106 litigation also requires that the Agency prove that the site constitutes an
imminent and substantial endangerment to human health or the environment. This may be
based on the risk assessment in the RI.
Fund The use of the Fund to implement the RD may be limited by Regional availability of Fund
monies. If the PRPs have been recalcitrant or there is a Regional decision to fund the RD
if the negotiations fail, advance planning is crucial. A "planned obligation" must be
targeted in the SCAP in the fiscal year negotiations where the obligation is targeted. This
target is counted against the Region's total Fund budget. In some cases, the scheduled
initiation of Fund-financed activity may encourage recalcitrant PRPs to settle.
20- RDIRA Negotiations/Settlement
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Partial Settlements The application of the settlements incentives/disincentives concept may result in a partial
settlement for less than full relief. If some or all past costs are deferred to non-settlors,
EPA may pursue them under section 107. Under mixed funding settlements, the recalci-
trant PRPs may be held liable for the Agency's costs in implementing the RD and RA,
RD/RA oversight costs, and past costs.
If the decree covers less than all the remedial work, EPA may "carve out" discrete portions
of the remedy for which recalcitrants may be held liable.
PoSt-RGfGrral D(^J nas a substantial role in cases that are referred with settlement, referred without
... . t\f\i settlement (sections 106/107), and in on-going litigation. DOJ's review of referrals with
ACllOnS Dy UUJ settlement involves an assessment of whether the settlement is in the government's interest
and of the legal terminology of the decree. DOJ's assessment of referrals without settle-
ment primarily involves a review of the sufficiency of the evidence regarding liability,
selection/implementation of response, and desired legal remedy, costs and defenses. On-
going litigation support is often resource intensive.
RD/RA Negotiations/Settlement-21
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Section III. Planning and Reporting Requirements
Budget
Requirements
The RPM should be involved in the development of budget estimates of post-RI/FS
support needs. Post-RI/FS budget needs include RD/RA negotiations, referral develop-
ment and litigation support. The standard budgets for the support activities are:
* RD/RA negotiations: $24,000
(for three quarters)
+ Referral development: $ 15,000 for 106,106/107
(for three quarters)
+ Litigation support: $20,000 for 106,106/107 Litigation
(for ongoing quarters)
* RD/RA Oversight $37,500 per quarter
(4 quarters for RD,
6 quarters for RA)
Please note that Headquarters and the Region have formed a workgroup which will assess
pricing issues and recommend new pricing guidelines. The result of this study is expected
to affect the pricing used in developing the FY 95 budget. The primary contract vehicle
for RD/RA negotiations support is TES. in Fy 94, the TES contracts will expire and the
Environmental Enforcement Support (EES) contracts will replace them. The primary
contract vehicle for RD/RA oversight is ARCS.
The negotiation team should see if RD and/or RA funding from Superfund is available as
an option to be used if negotiations fail. Since the potential demands on the Fund exceed
its size, monies may not be available to initiate Fund-financed activity. For example, RA
funding will first require ranking to determine eligibility and position in RA prioritization
queue. If funds are available, monies will be committed for the fiscal quarter in which
negotiations are scheduled to conclude. Initiation of Fund-financed activity should be
planned in the fiscal year preceding the scheduled activity, due to the potentially large
amount of money required for RD and RA activities. The availability of Fund money to
implement the RD and RA is a valuable tool to force the PRPs to negotiate.
B.
Reporting
Requirements
The RPM must review and update the information in EPA's automated data systems as
events happen. That is, events should be tracked in the data base on a real time basis.
Depending on the Region, RPMs are responsible for entering accurate information into
CERCLIS/WasteLAN or providing that information to the IMC for entry into CERCLIS/
WasteLAN. The RD/RA negotiation milestones (actual start date, date of issuance of
special notice) must be entered into CERCLIS/WasteLAN. A matrix of SCAP/STARS
targets relevant to RD/RA negotiations is presented as exhibit VIII-6 below.
Exhibit VIII-6
SCAP/STARS Targets for RD/RA Negotiations
Activity
RD/RA Negotiation Start
RO/RA Negotiation
Completion
STARS
Target
SCAP
Target
X
X
Quarterly
Target
X
X
Annual
Target
X
X
22-RDIRA Negotiations/Settlement
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RD/RA negotiations start when:
* The first Special Notice Letter (SNL) is signed, or
• A Section 122(a) waiver of SNL is signed.
If the Region does not plan to conduct RD/RA negotiations, dates should not be entered
into WasteLAN. The start of RD/RA negotiations is planned site specifically. This is a
SCAP target
RD/RA negotiations end when:
* A signed CD (section 106 or 106/107 referral with settlement) for RD/RA and 10
point analysis are referred by the Region to either DOJ or HQ
«• A section 106 or 106/107 injunctive referral to compel the PRPs to perform the
RD/RA is referred to DOJ or HQ. (HQ prefers that a UAO be issued prior to
initiating an injunctive referral)
* A UAO for RD/RA or RA only to initiate site work is signed by the Regional
Administrator
• EPA and PRPs proceed to trial under an existing case
• Funds are obligated for a Fund-lead RD, or
• If RD funds are not available and the Region decides that a UAO is not appropriate and
HQ concurs with this decision in writing, the negotiation completion date is the date
of the HQ memorandum concurring with the Regional decision.
The negotiation conclusion date is the date on the transmittal letter for the CD, the date on
the transmittal letter with the injunctive referral, the date the UAO is signed by the Re-
gional Administrator, the date the trial begins, the date funds are obligated, or the date on
the HQ memorandum. RD/RA negotiation outcomes are SCAP targets planned site
specifically in WasteLAN. Outcomes are also tracked by SCAP/STARS. A matrix of
SCAP/STARS targets relevant to RD/RA negotiation outcomes is presented as Exhibit
VIII-7.
Exhibit VIII-7
SCAP/STARS Targets for RD/RA Negotiation Outcomes
Activity
RD/RA Settlements and
Injunctive Referrals
(S/E-1a&1b)
RD/RA Settlements
RD/RA Injunctive Referral
STARS
Target
X
SCAP
Target
X
X
Quarterly
Target
X
X
X
Annual
Target
X
X
X
Definitions for RD/RA Negotiation Outcomes:
• RD/RA Settlements (S/E-la) - This measure includes all CD referrals under
Section 106,107 and 122(d) for PRPs to conduct or pay for the RD/RA. It
includes mixed funding and cash out settlements for RD/RA. Credit for the CD
referral is the date on the Regional Administrator's transmittal memo to HQ or to
DOJ as recorded in WasteLAN. Regions also receive credit for this measure for
UAOs issued under section 106 for RD/RA that are in compliance. Credit for
UAOs is the date PRPs provide notice of intent to comply with the order as
recorded in WasteLAN. (Should a PRP initially comply with a UAO, and later a
RD/RA NegotiationslSettlement-23
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CD is agreed to for the same work, credit will be for the UAO only.) Also in-
cluded in this measure are lAGs with Federal agencies at non-Federal Facility
sites.
• RD/RA Injunctive Referrals (S/E-lb) - This measure includes injunctive refer-
rals, under section 106 or 106/107, to enforce a UAO for RD/RA. Credit for the
referral is the date on the Regional Administrator's transmittal memo to HQ or to
DOJ as recorded in WasteLAN. (Referrals for preliminary relief or penalties do
not count toward this measure.)
~. - RD/RA settlements and injunctive referrals are combined targets in STARS.
Credit will be withdrawn if a case is returned by OE or DOJ for additional work.
Credit will be reinstated upon re-referral and will be based on the quarter of re-
referral, hi the event a case is referred in one year and returned to the Region in
subsequent years, no credit will be provided for re-referral.
A matrix of SCAP/STARS measures relevant to RD/RA negotiation outcomes is presented
as Exhibit VIII-8.
Exhibit VIII-8
SCAP/STARS Measures for RD/RA Negotiation Outcomes
Activity
Unilateral Administrative
Order (UAO)
Section 106, 106/107, 107
Case Resolution
De minimis Settlements and
Number of PRPs (S/E-3a)
Mixed Funding Settlements
State Consent Decree (CD)
STARS
Reporting
X
SCAP
Plan/Report
X
X
X
X
X
Quarterly
X
X
X
X
X
Annual
X
X
X
X
X
• Unilateral Administrative Orders Issued for RD/RA (UAO) - UAOs are an
enforcement tool to compel the PRPs to conduct the RD and/or RA. This measure
includes UAOs issued under section 106 to compel PRPs to conduct the RD/RA.
Credit is based on the date the UAO is signed by the Regional Administrator, as
recorded in WasteLAN. PRPs do not have to comply with the UAO in order for
the Region to receive credit under this measure. UAOs are reported separately
from RD/RA settlements and injunctive referrals. This is a SCAP reporting
measure.
• Section 106,106/107,107 Case Resolution - Case resolution is the conclusion of
a section 106,106/107, or 107 judicial action by a full settlement, a final judgment,
a case dismissal, or a case withdrawal. Credit for case resolution is given when:
• A CD is entered in the court fully addressing the complaint with all parties
• the case is withdrawn
• the case is dismissed, or
• A trial is concluded and a judgment is entered fully addressing the complaint.
24- RD/RA Negotiations/Settlement
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The case resolution date (activity actual completion date) is the same as the milestone
date and is defined as follows:
- Date the CD is entered
- Date the case is withdrawn
- Date the case is dismissed, or
- Date the judgment is entered.
This is a SCAP reporting measure.
• Mixed Funding Settlements - Administrative or judicial settlements under section
106 or 106/107 and section 122(b)(l) of SARA. There are three types of mixed
funding settlements: 1) preauthorization; 2) mixed work; and 3) cash outs.
This measure includes mixed funding settlements in the form of a CD or AOC
between EPA and the PRPs. Credit for the CD is the date on the Regional
Administrator's memo transmitting the referral to HQ or DOJ as recorded in
WasteLAN. Credit for the AOC is based on the date it is signed by the Regional
Administrator as recorded in WasteLAN.
* State Consent Decree for RD/RA - Judicial agreement between the State and the
PRPs fully or partially settling a claim under CERCLA. The settlement may be for
response work, or both response and cost recovery work. Credit for accomplish-
ment is given the date the State CD is signed by the last State official or party. All
WasteLAN coding requirements for CDs apply. The enforcement activity type
(C1701) should be State decree (SD) and the date should be reported in C1717. In
addition, the remedy field must denote that the CD was issued for RD and/or RA.
This is a SCAP reporting measure, not a targeted activity.
• De Minimis Settlements and Number of PRPs (S/E-3A) - This is all administra-
tive or judicial settlements that were reached solely under section 122(g) of SARA,
with PRPs who qualified as de minimis. This settlement involves the established
de minimis portions of the response costs at the site and is embodied in a CD or an
AOC. If the total response costs at the site exceed $500,000 (excluding interest),
the AOC can only be issued with DOJ prior written approval. If DOJ does not
approve or disapprove the AO within 30 days, the AOC is considered approved
and can be issued. (DOJ and the Administrator can agree to extend this 30-day
period).
Credit is given for a final settlement when an AOC is signed by the Regional
Administrator or when the Regional Administrator signs the memo transmitting
the CD to HQ or DOJ. The number of PRP signatories to each settlement also
must be reported. The remedy qualifier for de minimis must be entered into
WasteLAN Enforcement Remedy Qualifier data elements (C2741-C2750="DL" or
"DG"). This is a STARS reporting measure.
For specific coding requirements into WasteLAN, see the Enforcement Data Quality
Manual Chapter I: RD/RA Negotiations (AN), Consent Decree (CD), Unilateral Adminis-
trative Order (UA), Section 106 Litigation (SX), Section 106/107 Litigation (CL), State
Decree (SD), State Order (SO), De minimis Consent Decree (CD).
RD/RA NegotiationslSettlement-25
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Section IV. Potential Problems/Resolutions
This section addresses some of the common problems that arise during RD/RA negotia-
tions. While each Region has different methods of resolving these problems, this section
discusses some of the more effective Regional experiences.
A. Poor Relationships
Among the PRPs
At large sites, interpersonal antagonisms can develop between the PRPs. The RPM and
assistant Regional counsel should provide information to the PRPs to assist them in
coalescing into a steering committee. The RPM should also recommend the use of
alternative dispute resolution methods to assist the PRPs in resolving their disputes. Mixed
funding may be appropriate if the great majority of parties are cooperative and a minority
are recalcitrant.
B. Multiple Revisions
to Draft CD
The specific language in the draft CD may cause numerous revisions to be made between
the PRPs and the Agency. The Agency's policy is that the strict negotiations deadlines
help force the PRPs.to settle on issues in the language of the CDs. If the deadlines are
approaching and it appears that settlement is near, the Regional Administrator may request
a second 30-day extension from the AA, OSWER after the initial 30-day extension. To
avoid this situation, the negotiation team should insist on short deadlines on revisions to
the drafts. Furthermore, weekly or biweekly meetings with the PRPs are advised. These
meetings should be scheduled well in advance, so that all parties are aware of the schedule
for preparing revised drafts of the CD.
C. Settling with Majors
Involved with De
Minimis Settlements
In some situations, major contributors to a site may be reluctant to negotiate RD/RA
settlement terms after some PRPs have settled early under de minimis provisions. The case
team may be able to avoid conflict with major parties by soliciting settlement proposals
from them prior to finalizing settlement terms with de minimis PRPs. Additionally, the
negotiation team may find it beneficial to explain the following advantages of de minimis
settlements to the major parties:
* In cases where there are numerous PRPs, it may not be practicable and in the public
interest to sue all small parties. Early de minimis settlements therefore may save major
parties the expense and time of litigation
* EPA will require premiums from de minimis settlors
• Monies from early de minimis settlements may provide start-up funds for major-party
conduct of RD/RA activity.
It also may be helpful for the negotiation team to keep the major party steering committee
advised of the status of de minimis settlement negotiations.
D.
Use of Public
Relations
Effective use of the media may increase the impact of settlements on the PRP community
by providing examples of PRP participation in settlements. Publicizing PRP participation
in settlements creates an incentive for future PRP participation in other settlements and
enhances the public policy implications of settlements, thus providing PRPs with a policy
rationale for their efforts. Additionally, press coverage of critical pre-settlement actions
(e.g., issuance of special notice, commencement of negotiations) may be an effective tool
in creating pressure on PRPs to settle expeditiously and cooperatively. RPMs should
identify sites as candidates for the use of public relations tools as early as possible and
enlist the assistance of Regional Office of Public Affairs staff.
26- RD/RA Negotiations/Settlement
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E. InadGQUatG PRP Negotiating PRPs may be less willing to settle when some of the PRPs at the site have not
« u been identified or evidence of liability against identified PRPs is not strong enough for
those PRPs to decide to settle for their full share of cleanup costs. The negotiation team
should work closely with the civil investigator to ensure that a thorough PRP search is
conducted and all leads are investigated. The negotiation team should ensure that any new
information uncovered during negotiations is considered against the information presented
in the report. New information, when considered against information discovered during
the initial PRP search, may lead to additional PRPs or increase the evidence of liability
against already identified PRPs. The negotiation team should work with the civil investi-
gator to follow up on any leads that may encourage settlement if new PRPs are identified
during RD/RA negotiations.
F LdtG ChdllGDQGS Many PRPs wait until EPA solicits a settlement to challenge or question EPA's volumetric
V I t' D 1^ ranking. EPA should encourage the steering committee to set up a process for early
10 VOIUmetriC Harming challenge, or the Agency should set up one itself.
RDIRA Negoliaiions/Settlement-27
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Section V. References
Policy OSWER Directive 9835.0, "Interim CERCLA Settlement Policy" (December 5,1984).
Guidance OSWER Directive 9835.4, "Interim Guidance: Streamlining the CERCLA Settlement
Decision Process" (February 12,1987).
OSWER Directive 9834.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 19,1987).
OSWER Directive 9835.12, "Releasing Information to Potentially Responsible Parties at
CERCLA Sites" (March 1,1990).
OSWER Directive 9834.10A, "Model Notice Letters" (February 7,1989).
OSWER Directive 9833.0-1 A, "Guidance on CERCLA Section 106(a) Unilateral Admin-
istrative Orders for RD/RAs" (March 7,1990).
OSWER Directive 9833.0-2(b), "Model Unilateral Administrative Order for Remedial
Design and Remedial Action Under Section 106 of CERCLA" (March 30,1990).
OSWER Directive 9835.17, "Model CERCLA RD/RA Consent Decree" (June 21,1991).
OSWER Directive 9839.1, "Interim Guidelines for Preparing Non-binding Preliminary
Allocations of Responsibility" (May 16,1987).
OE, "Covenants Not to Sue Under SARA" (July 10,1987).
OSWER Directive 9834.7, "Interim Guidance on Settlements with De minimis Waste
Contributors Under Section 122(g) of SARA" (June 19,1987).
OSWER Directive 9834.7-1 A "Interim Model CERCLA Section 122(g)(4) De minimis
Waste Contributor CD and AOC" (October 19,1987).
OSWER Directive 9834.7-1B, "Methodologies for Implementation of CERCLA Section
122(g)(l)(A) De minimis Waste Contributor Settlements" (December 20, 1989).
OSWER Directive 9834.7-1C, "Methodology for Early De minimis Waste Contributor
Settlements Under CERCLA Section 122(g)(l)(A)" (June 2,1992).
OSWER Directive 9832.4, "Interim Cashout Procedures" (January 7,1992).
OE/OSWER, "Strategy for CERCLA Section 106 Litigation Support" (January 28,1991).
OSWER Directive 9834.6, "Policy Toward Owners of Residential Property at Superfund
Sites" (July 1991).
OSWER Directive 9835.14, "Submittal of Ten Point Settlement Analyses for CERCLA
Consent Decrees" (August 11,1989).
OSWER Directive 9835.7, "Guidance on CERCLA Section 106 Judicial Actions" (Febru-
ary 24,1989).
OSWER Directive 9834.13, "Interim Policy on CERCLA Settlements Involving Munici-
palities and Municipal Wastes" (December 6,1989).
OSWER Directive 9835.9, "Guidance on Landowner Liability under Section 107(a)(l) of
CERCLA, De minimis Settlements under Section 122(g)(l)(B) of CERCLA and Settle-
ments with Prospective Purchasers of Contaminated Property" (June 6,1989).
OSWER Directive 9012.10-a, "Revision of CERCLA Civil Judicial Settlement Authorities
Under Delegations 14-13 B and 14-14 E ( June 17,1988).
OSWER Directive 9012.10-1, "Clarification of Delegations of Authority 14-14-A, 14-14-
B, and 14-14-C Under CERCLA" (April 4,1990).
OSWER Directive 9834.9A, "Interim Policy on Mixed Funding Settlements Involving the
Preauthorization of States or Political Subdivisions" (May 27,1988).
28- RD/RA Negotiations/Settlement
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Memoranda OE> '
-------
Section VI. Activities Checklist
Determine Universe of PRPs to Extent Practicable
a) Are PRPs ranked (particularly generators) by volume/
waste type?
b) If infomation is missing, can gaps be filled by adminis-
trative discovery?
c) Strategy developed for addressing federal and/or
municipal PRPs (if applicable)
d) Have General Notice Letters been sent?
Evaluate Financial Status of PRPs
a) Bankruptcy issues
b) Insurance coverage
c) Superfund lien possible
Evaluate Liability Issues
a) Strength of EPA's evidence
b) Documentation in AR
Develop Strategy for Negotiating
a) Assess PRPs' interest in negotiating
b) Facilitate steering committee development
c) Determine whether should identify and solicit a separate
settlement for de minimis PRPs
d) Should NBAR be developed?
e) Decide on negotiation team's roles, (e.g., if there are
liability issues and remedy issues, consider whether to
divide the negotiation team into separate units)
f) Determine whether Fund and State-share will be avail-
able to implement the remedy if negotiations fail or issue
a UAO or initiate judicial action
Notify and Consult with Federal and State Natural Resource Trustees
Follow Special Notice (or Waiver) Procedures
a) Notify DOJ 60 days before EPA issues the SNLs
b) Draft CD including RD/RA SOW or ROD
c) Assess GFO
d) Notify Natural Resource Trustees of Special Notice
issuance
e) Monitor moratorium and any extension requests
Develop Cost Recovery Component of Case (including oversight costs)
Strategy for Settlement
a) Is case appropriate for separate de minimis PRP settle-
ment?
b) Mixed funding potential
c) Covenants and reopeners
30- RD/RA NegotiationslSettlement
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9) Ascertain NR Trustee Strategy (e.g., is the trustee contemplating filing a
natural resource claim or authorizing a convenant not to sue?)
10) State's Role
11) Citizen Participation
a) Any toxic waste tort pending?
b) TAG grant
12) Finalize the CD
13 Proceed Against Non-settlors
a) In the event that settlement negotiations fail, are you
prepared to issue a UAO or take section 106 judicial
actions?
RDIRA Negotiations/Settlement-31
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IX. RD/RA
IMPLEMENTATION
-------
Chapter IX
RD/RA Implementation
Section I. Description of Activity 1
Introduction 1
Overview 1
Responsibilities 2
PRPs 2
RD Professional 3
RA Contractor 3
QAT 3
EPA 4
RPM 4
Oversight Official 4
Section II. Procedures and Interactions 6
A. Define Remedial Design Approach 6
B. Perform Design Tasks 6
Design Investigation 6
Design Support 6
Plans and Specifications 6
Construction Schedule 7
C. EPA RD Review 7
Review RD Professional Qualifications 7
Review RD Work Plan 7
Preliminary Design Review 7
Intermediate Design Review 8
Pre-Final/Final Design Review 8
D. Community Relations Activities 9
E. Initiate Remedial Action Oversight 9
EPA Pre-RA Review 9
Review RA Work Plan ..9
Review RA Contractor Qualifications 10
Review QAT Qualifications 10
Review Construction QA/QC Plans 10
F. Hold Preconstruction Conference 11
G. Implement Remedial Action 11
RPM Role/Responsibilities 11
Oversight Official Role/Responsibilities 11
Responding to Immediate Danger or an Emergency 11
RD/RA Implementation-i
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H. Pre-Final/Rnal Inspection 12
I. Prepare Remedial Action Report 12
Section III. Planning and Reporting Requirements 13
A. SCAP/STARS 13
SIF Instructions for RD/RA Implementation 13
Remedial Design Activities 17
Remedial Action Activities 18
Section IV. Potential Problems/Resolutions 19
A. Oversight 19
B. Incentives for Successful Performance 19
C. Compliance Monitoring 19
D. Site Access 20
Section V. References 22
Policy 22
Guidance 22
Manuals 22
Memorandum 22
Contacts 22
Training 22
ii-RDIRA Implementation
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Chapter IX
RD/RA Implementation
Section I. Description of Activity
Introduction EPA conducts oversight of actions taken by PRPs when the response is taken pursuant to
an EPA order or Consent Decree to ensure a response is conducted consistent with the
NCP (See NCP section 300.400(h)). The objectives of PRP oversight by EPA are to
ensure that selected remedies being conducted by the PRP are protective of public health
and the environment, and in compliance with the settlement agreement.
In the past, when PRPs conducted RD/RA activities, the RD did not start until the Consent
Decree was entered as final by a Federal district court judge. As a result, the PRPs' RD/
RA projects sometimes were delayed for 12-15 months after the ROD was issued.
These delays in initiating remedial design are not consistent with the Agency's efforts to
expedite site clean-up. Therefore, the initiation of PRP-conducted RD activity is no longer
dependent upon the court's entry of the Consent Decree. The Agency's strategy is to
encourage the PRP to agree to settlements wherein engineering design work can proceed
upon the lodging of the Consent Decree by EPA, or where litigation is already pending,
upon execution of a stipulation obtained before the start of the RD. By implementing this
strategy, RD activities may be initiated before a Consent Decree is entered. In such cases,
the RPM must exercise his/her oversight authority to ensure that the PRP is conducting the
RD in accordance with the terms of the settlement agreement. This strategy of encourag-
ing the PRP to begin the RD as soon as the settlement is lodged will allow PRP-Iead
projects to begin at approximately the same time as a Fund-lead project for the site.
A focused approach to PRP oversight that will assist RPMs in concentrating their efforts
on the most significant aspects of the projects is recommended. The successful implemen-
tation of the focused approach consists of two steps. First, the RPM must focus on certain
key documents developed throughout the design and construction of the remedy such as
the RD and RA Work Plans, project schedules, preliminary design, final design, Construc-
tion Quality Assurance (QA) and Quality Control (QC) Plans, and the Contingency Plan.
The second step is the utilization of a Quality Assurance Team (QAT) during construction.
The focused approach will allow RPMs to utilize their oversight activities in a more
efficient manner, enabling them to more effectively monitor PRP activities. The ultimate
goal of PRP oversight is to hold PRPs responsible and accountable for the remedial action.
EPA has developed a separate guidance for overseeing RDs and RAs conducted by PRPs,
entitled "Guidance on EPA Oversight of RDs and RAs Performed by PRPs," April 1990,
EPA/540/G-90/001. Also, draft guidance entitled "Model Statements of Work for RD/
RAs for use with settlement agreements and for Oversight of RD/RAs" is being prepared
by OERR/HSCD. Additional detail on RD/RA implementation is provided in these
guidance reports. Certain methods also have been explored to expedite remedial design
and remedial action so that cleanup activities can be completed more quickly. These are
addressed in OSWER Directive 9355.5-02, "Guidance on Expediting Remedial Design
and Remedial Action" (August 1990).
When PRPs elect to conduct RD/RA activities at a Superfund site, they must do so in
accordance with the terms of the negotiated settlement agreement (either an Administra-
tive Order on Consent or a Judicial Consent Decree) per section 122 of CERCLA. Subse-
quently, PRPs and their agents are responsible for the adequacy of the design and the
RD/RA Implementation-l
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implementation of remedies specified. During an enforcement lead cleanup, the primary
function of EPA is to ensure PRPs comply with all applicable laws, regulations, and
requirements, and meet all performance standards specified in the settlement agreement.
EPA has two objectives for overseeing PRP conducted RD/RAs on enforcement lead
cleanups:
* Ensure the remedies are protective of public health and the environment throughout
the life of the project, and
* Ensure the RA is implemented in compliance with the terms of the settlement
agreement.
The intent of the oversight program is to focus EPA efforts on the most significant aspects
of the project, such as overall QA, scheduling, major changes due to changed field condi-
tions, emergency actions, and project close out. EPA may use a high level of oversight at
the onset of the RD and again when the RA is initiated. The amount of oversight effort
may be increased or decreased over time, depending on the capabilities of the PRPs'
design and construction teams, the implementation of a construction QA program, the
nature of the technology selected, and the provisions of the settlement agreement. The
oversight must always be structured so the PRPs, not EPA, remain legally responsible and
accountable for the success of the response action.
This enforcement approach not only conserves Fund resources, it also frees EPA personnel
to work on other sites. The focused approach will formalize the requirement for PRPs to
implement a construction QA program. This is consistent with standard industry construc-
tion practice. In addition to reducing the duplication of QA activities, this will maintain
the burden of QA accountability with the PRP.
Because each Superfund site and RD/RA is unique, there are several acceptable variations
of a PRP's organizational structure to implement the RD/RA. Regardless of the PRP
organizational structure, however, it is the ultimate responsibility of the PRP to success-
fully implement the remedy under the terms of the settlement agreement.
Exhibit IX-1 presents a simple organizational chart illustrating the relationships in an
enforcement lead project in which the PRP conducts the RD/RA. There are a number of
organizations that could be used for conducting the work, and the best approach will
depend on the experience and preference of the PRPs.
A "reporting relationship" as shown in Exhibit IX-1, is defined as a direct line responsibil-
ity in which one party, as an agent of the other or as a legal requirement, is compelled to
report the results of their work or observations. The PRP has a "reporting relationship"
with EPA as a condition of the settlement agreement, while agents and contractors hired by
the PRP have a similar type of association with the PRP. Where "lines of communication"
are indicated in Exhibit IX-1, it implies that an information exchange is highly desirable
between parties. Such an exchange is usually necessary for a successful implementation of
a remedy, however, there is no legal requirement for such communication. The QAT is
used to ensure compliance and provide unbiased QA monitoring of the RA.
The following paragraphs discuss particular roles and responsibilities of the PRP and EPA
in the implementation of an enforcement lead project in which the PRP does the RD/RA.
PRPS ^ne PRPS are teg^y responsible for complete site remediation as specified in the settle-
ment agreement. All work is done under the PRP's control and they are responsible for the
long-term performance of the remedy. PRPs provide the necessary input to effect site
remediation, whether done with "in-house" resources, or through the use of hired contrac-
tors and subcontractors. PRP responsibilities are apportioned among the RD Professional,
the RA Contractor, and the QAT.
2-RD/RA Implementation
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Exhibit IX-1
Relationships Among Parties When RD/RA Is Performed By a PRP
EPA
OVERSIGHT
OFFICIAL(S)
REPORTING RELATIONSHIP
LINES OF COMMUNICATION
PRP
QUALITY
ASSURANCE
TEAM
REMEDIAL
ACTION
CONTRACTOR
DESIGNER
-------
RD Professional The primary function of the RD Professional, or design engineer, is to provide the PRP
with a set of plans and specifications for the proposed remediation that meets the require-
ments and is within budget and on schedule. The RD Professional may be an employee of
the PRP or may be a private consulting entity retained under a contractual relationship
with the PRP. Unless the RD Professional has a large and experienced staff, many
projects are sufficiently complex to require the design team to be supplemented with
additional capabilities (i.e., geotechnical, electrical, mechanical, or structural engineers;
field surveyors, or persons with other specialized skills.) These specialists may subcon-
tract with the RD Professional or contract directly with the PRP.
In addition to the above responsibilities, the RD Professional usually will be required to
provide a Resident Engineer to act as the PRP's agent on the site during construction. In
some situations the Resident Engineer may be hired directly by the PRP. In either case,
this person is one of the most critical in establishing and maintaining construction quality
on the site. Typically the Resident Engineer is required to review progress and shop-
drawing submittal schedules; prepare periodic progress reports; make recommendations
concerning major inspections and tests; draft change orders, field orders, and work
directive changes; conduct the pre-final and final inspection of completed work with PRP,
RA Contractor, EPA, and other agencies; prepare a Remedial Action Report that certifies
the completed project has been constructed in accordance with the settlement agreement
and that all performance standards have been met; and determine that certificates, opera-
tion and maintenance (O&M) manuals, and other required data have been assembled by
the RA Contractor.
RA Contractor An ^ Contractor's primary responsibility in constructing the RA is to meet the quality
standards specified by the design and accepted trade practices. They are responsible to the
PRP for implementing and maintaining the Quality Control (QC) program. The RA
Contractor will obtain all necessary permits and approvals as required by the RA activities;
construct the project according to the plans and specifications by supervising and control-
ling the execution of work, including means, methods and sequences of construction; and
maintain "Record Drawings" at the site, properly noting all changes made during construc-
tion. The RA Contractor also will implement and maintain a construction QC program,
identify and report problems, provide qualified testing to demonstrate that proposed
materials and equipment are acceptable, and respond constructively to QC issues.
QAT Quality is conformance to properly developed requirements. In the case of construction
contracts, these requirements are established by the contract specifications and drawings.
Quality Assurance is planned and systematic actions by the PRP to provide confidence that
the completed remedy meets these requirements. The QAT is used to provide this level of
confidence to the PRP by testing and inspecting the work of the RA Contractor. Quality
Control is the system used by the RA Contractor to manage, control, and document the
compliance with requirements of all RA activities. This includes activities of the parent
firm and those of suppliers and subcontractors.
The QAT includes representatives from testing and inspection organizations, independent
of the constructor, that are responsible for examining and testing various materials,
procedures, and equipment during the construction. Since the PRP is responsible for the
QA of the remedy, the QAT is retained by the PRP. The QAT are either employees of the
PRP, or are working for the PRP through a contractual arrangement, and therefore have no
legal means for responding to EPA direction. Any direction regarding the QAT will come
from the PRP. EPA should raise issues regarding the performance of the QAT directly
with the PRP.
RDIRA lmplemenialion-3
-------
The qualifications and expertise of the personnel should be commensurate with the scope
of the project. Typical functions of the QAT include reviewing design criteria, plans, and
specifications for clarity and completeness; directing and performing observations and
tests for QA inspection activities; verifying that the Construction QC Plan is implemented
in accordance with the site-specific Construction QA Plan; performing independent on-site
inspections of the work to assess compliance with design criteria, plans and specifications;
and reporting to the PRP and EPA the results of all inspections and corrective actions,
including work that is not of acceptable quality or that fails to meet the specified design
requirements.
EPA is responsible for protecting the public health and the environment and ensuring that
the PRPs comply with the terms of the settlement agreement. EPA monitors compliance
of the PRP in their implementation of the remedy. The most successful way for EPA to do
this is to vest responsibility for the project in a single individual within EPA, the RPM.
The RPM usually hires an oversight official to assist EPA in overseeing PRP-lead RD/
RAs.
The RPM is the Federal official designated by EPA to coordinate, monitor, and manage
remedial activities. EPA's role in RD/RAs performed by PRPs is to ensure Uiat the
remedy complies with the ROD and the settlement agreement. The RPM should manage,
coordinate and monitor PRP activities with the support of the Oversight Official, and be
technically competent to ascertain compliance by the PRP and the PRP's staff and consult-
ants with the settlement agreement and the ROD.
The RPM may exercise a high level of oversight at the onset of the project. As the PRP
demonstrates competence in implementing the remedy, the amount of oversight may be
relaxed accordingly. The oversight program must focus the RPM's efforts on the most
significant aspects of the project, such as overall quality, scheduling, major changes due to
changed field conditions, site safety, emergency actions, and project close-out. This may
require site visits at appropriate milestones during execution of the project.
Active participation in the design and construction of the remedy by the RPM or the
Oversight Officials however, is generally inappropriate to the EPA oversight role and
authority. RPMs and/or Oversight Officials should not serve as technical experts for
technologies or methods required to implement the remedy. RPMs who serve in such a
role, or who give direction to PRP employees or consultants, could undermine and com-
promise the oversight relationship between EPA and the PRP, and shift some of the
responsibility for the success of the remedy to EPA. EPA should not be both a player and
a referee in PRP lead projects.
At a minimum, the RPM should review and approve the PRPs' RD/RA Work Plans, design
submittals, Construction QA and Construction QC Plans, Contingency Plan, and Remedial
Action Report. It should be understood that the term "EPA Approval" should in no way
warrant that the technology is sanctioned by EPA as technically acceptable or will work
from a technical view. The term may be defined in the settlement agreement as meaning an
administrative approval which simply allows the PRP to proceed to the next step. RPMs
should defer to the advice of Regional Counsel and the relevant language in OS WER
Directive 9835.16, "Draft Interim Model CERCLA RD/RA Consent Decree" regarding the
use of the term "EPA Approval."
Oversight Official The RPM acquires technical assistance for performing oversight in monitoring PRP
compliance with the settlement agreement by engaging one or more Oversight Officials
capable of providing support in all technical aspects of the RD and RA. The Oversight
Official is under some form of contractual or interagency agreement with EPA and reports
4-RDlRA Implementation
-------
directly to the RPM. The recommended options available for oversight support include
Alternative Remedial Contract Strategy (ARCS) contractors, the US Army Corps of
Engineers (USAGE), and the US Bureau of Reclamation.
The responsibilities of an Oversight Official during RD may include assisting in reviewing
the professional qualifications of the RD Professional, RA Contractor, and the QAT;
reviewing the RD and RA Work Plans; and reviewing the RD submittals to determine if
they are protective of public health and the environment, comply with the ROD, and will
attain the performance criteria specified in the settlement agreement.
During RA, the Oversight Official reviews the Contractor QA Plans and schedule for
compliance with the approved plans and specifications. Construction oversight is limited
to observing construction and comparing the work to a set of standards (in this case, the
design plans and specifications, and the Construction QC Plan prepared by the PRP's RA
Contractor). The Oversight Official also conducts spot checks of the QAT's activities and
reviews QA reports. The results of all RA oversight activities are reported to the RPM.
RDIRA lmplementation-5
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Section II. Procedures and Interactions
Define Remedial
Design Approach
The RD establishes the general size, scope, and character of a project. It details and
addresses the technical requirements of the RA. RD begins with preliminary design and
ends with the completion of a detailed set of engineering plans and specifications.
There are two approaches to RD: performance-based and definitive. In a performance-
based design, basic technical specifications are developed, containing the performance
requirements for the work. The RD Professional focuses on defining criteria and process
limits. It is the RA Contractor's responsibility to implement a remedial plan that achieves
those technical specifications.
In a definitive design, information is provided on system integration and on appropriate
equipment for each unit process. The designer chooses equipment, dimensions, controls,
size, shape, materials, and installation details. The contractor builds to these definitive
plans and specifications.
In many situations, a mixed design approach is used. This often occurs for designs
incorporating an innovative or emerging technology for which there is relatively little
information available. In this instance, the designer may use a performance specification
for the innovative technology and a definitive design for all other aspects.
Exhibit IX-2 presents a flow chart illustrating the RD process of the focused approach to
oversight. The "diamonds" in the figure represent decision or review points that are the
RPM's responsibility and are considered critical to the quality and success of the project.
B. Perform Design
Tasks
Before commencing RD, it often is necessary to perform design related tasks (e.g., data
gathering and treatability studies), hi addition, there are other activities required to be
performed during the actual design process to support the design (e.g., establishing design
criteria and a delivery strategy, value engineering study, and community relations). The
following tasks are commonly required in a PRP-performed RD, either as prerequisites to
the design or as part of the actual design.
Design Investigation It is unlikely that all the data required for the RD was collected during the remedial
investigation and feasibility study (RI/FS) phase. Some RODs prescribe remedies contin-
gent on the results of additional testing or treatability studies. Additional field data may
need to be collected and evaluated, including geotechnical investigations, groundwater
sampling, and surveys (property, utility, right-of-way, topographic).
Design Support
During the initial preliminary design phase, concepts supporting the technical aspects of
the design are defined in detail. Much of the information is based on the results of field
data and treatability studies that may have been completed since the RI/FS.
Besides the design criteria, which primarily address the project's technical issues, the
designer must devise a strategy for delivering the project. This is the management ap-
proach to carry out the design and implement the RA. It normally discusses the procure-
ment method and contracting strategy, phasing alternatives, health and safety consider-
ations, review requirements, design schedule, contractor, labor, and equipment availability
concerns, and requirements for addressing sampling and data gathering methods (Field
Sampling Plan), QA considerations (Construction QA Plan), and air emissions and spill
control requirements (Contingency Plan).
Plans and Specifications The goal of RD is to produce a set of engineering plans and specifications that are consis-
tent with the technical criteria established for the design. These documents present the
design information in the detail appropriate for the requirements of the project.
6-RDIRA Implementation
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Exhibit IX-2
Remedial Design Oversight Process
1 1 1
PRP EPA OVERSIGHT OFFICIAL |
ROD
1 J_ 1
t
RD/RA NEGOTIATIONS '
1
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SETTLEMENT AGREEMENT '
i
* i I
SELECT RD RFVIFW nn PnOFFS^IONAI HI JAI IFirATiniM^
rHUr" twolvJINAL I
t . 1
PRFPARF RD WORK PI AN i fc RFVIFW RD WORK PI AN
11 T 1
NO / X
-.n| i PrvpnN/TRFATARii |JY ^ YES T '
STUDY , ,
* !
i
1 i I W i
1 NO / \^ '
YES I
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* I 1
PRE-FINAL/FINAL DESIGN
ilNL/LUUIINo. 1^^^^^ nc\/ic\A/onc CIMAI /CIMAI nccir*M
• CONSTRUCTION QA PLAN T^ REVIEW PRE-FINAL/FINAL DESIGN
• CONTINGENCY PLAN ' * '
1 1 NO /toonn^\ I
1 \J> /- |
1 YbS Y' 1
1 1
|
|
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|
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:
|
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ISWSWKSSS^S::^^
-------
Construction Schedule
A construction schedule is developed to identify major tasks, determine their duration, and
establish milestone dates. Key issues that may affect the schedule also should be identi-
fied.
c.
EPA RD Review
During RD, EPA monitors and reviews the performance of the PRP. The Oversight
Official provides technical assistance to EPA in this process. An approval of any of the
RD work elements at any stage by EPA in no way guarantees the success or failure of the
ultimate remedy. This is analogous to a city issuing a building permit to a developer for
construction of a building. The permit does not guarantee the building will be structurally
sound, it merely indicates compliance with the minimum design criteria and standards of
the city for such buildings. The soundness of the building's construction is still the
complete responsibility of the owner. Similarly, EPA review and approval of a PRP's
work plan or design merely assesses their acceptability with regard to RA goals in accor-
dance with the ROD and the settlement agreement. It does not warrant that the specified
performance standards will be met.
Review RD Professional
Qualifications
The PRP is responsible for selecting the RD Professional, subject to the approval of EPA.
Selecting a qualified designer with the training, experience, staff, and capabilities consis-
tent with the scope of work is an important step toward completing a quality constructed
project.
The RPM, in conjunction with the Oversight Official, should review the qualifications of
the RD Professional. The resultant analysis is used to form the basis of the level of
oversight employed by EPA during the RD process. The settlement agreement may
require the PRP to submit the name and qualifications of an RD "Supervising Contractor"
to EPA for review and approval. If EPA disapproves this contractor submitted by the
PRP, the PRP would submit a list of contractors acceptable to the PRP as "Supervising
Contractor(s)" to EPA; EPA would provide a written notice of the contractors it finds
approvable, from which the PRP may select. RPMs should defer to the advice of Regional
Counsel and the relevant language in EPA's "Draft Model CERCLA RD/RA Consent
Decree" regarding EPA review of the RD Professionals' qualifications.
Review RD Work Plan The RD Work Plan is the first major deliverable and area of focus for the RPM and
Oversight Official. It is the PRP's interpretation of the settlement agreement and the
Statement of Work. A thorough review of the work plan is essential because it sets the
course for the PRP's implementation of the design portion of the RA. The RD Work Plan
should be reviewed for its thoroughness and approach, and to ensure that it contains at
least the following items: tentative formation of the design team; a Health and Safety Plan
for design activities; requirements for additional field data collection; requirements for
treatability studies; a schedule for completion of the design; design criteria and assump-
tions; and tentative treatment schemes.
The RPM and Oversight Official should use the results of this review and the evaluation of
the RD Professional qualifications to establish the level of initial RD oversight as the
designer begins the preliminary design.
Preliminary Design Review The preliminary design review is the most critical technical review performed during RD
oversight. Because the preliminary design sets the pattern and direction of the entire
design process, it is imperative that any deficiencies in the RA performance standards be
identified. Furthermore, inconsistencies within the design itself must be identified and
corrected before the PRPs proceed with the detailed design submissions. Based on the
settlement agreement, EPA is required to review and approve this submission. The
preliminary design submittal should include the "Basis of Design Report." This report
RD/RA Implementation-?
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contains the design criteria analysis and the designer's "Remedial Action Delivery Analy-
sis," which describes procedures for procurement of the RA, tells how the RA will be
phased, etc. The submittal also should include the results of treatability studies and
additional field sampling; preliminary plans, drawings, and sketches; outline of required
specifications; and preliminary construction schedule.
In performing the preliminary design review, the Oversight Official and the RPM use their
professional training to assess the feasibility of the design to achieve the RA goals in
accordance with the ROD and settlement agreement. The Oversight Official makes a
recommendation to the RPM based on the criteria listed below. The RPM is responsible
for deciding whether the design is adequate and if enforcement action is necessary.
Ultimately the settlement agreement and any document incorporated into the agreement set
the performance criteria for the site. The preliminary design review should evaluate the
adequacy of the design with respect to all environmental and public health requirements.
A review with respect to environmental criteria can be done by determining the feasibility
of the design to meet the performance standards. The preliminary design should be
reviewed with consideration of the following: technical requirements of the ROD, settle-
ment agreement, and ARARs; currently accepted environmental protection measures and
technologies; standard professional engineering practices; applicable statutes, EPA
policies, directives, and regulations; conformance with results of field data and treatability
studies; reasonableness of estimated quantities of materials specified based on known data;
and examination of the construction schedule for meeting project completion goals.
The preliminary design review is limited to ensuring that the design criteria and the
delivery strategy are consistent with the design requirements of the selected remedy. It
should focus only on the environmental aspects of the design. Initially, the level of review
should be limited to certain criteria, such as verifying that appropriate unit processes are
being employed by the treatment train; confirming that the removal or treatment efficien-
cies assumed are reasonable for both the process and waste (concentration and volume);
checking that process waste streams are adequately identified and addressed, and that flow
rates are appropriate; verifying that the proposed sizing of the process is appropriate and
that any site abnormalities have been addressed; and spot checking some (about 10%) of
the design calculations.
The review can be expanded if any of the above areas appear to be deficient. Approval of
the preliminary design only allows the PRP to proceed to the next step of the design
process. It does not imply acceptance of later design submittals that have not been re-
viewed, or that the remedy, when constructed, will meet performance standards and be
accepted.
Intermediate Design The submittal of the intermediate design is optional and would normally only be per-
Review formed f°r larger, complex designs or when required by the settlement agreement. The
design is reviewed to determine that comments from the preliminary design review have
been incorporated. It is a further refinement of the specifications. The results of
treatability studies and any other data gathering should be incorporated. If a value engi-
neering study has been performed by the PRP, the intermediate design would typically
reflect any design modifications resulting from this study. These changes must be evalu-
ated for consistency with the ROD.
Pre-Final/Final Design The pre-final/fmal design submittals are reviewed for consistency with the ROD and
Review settlement agreement. The final design submittal package from the PRP should include the
following: final design plans and specifications; Operation and Maintenance (O&M) Plan;
Field Sampling Plan (including a description of whether the performance standards have
been achieved by the RA); Construction QA Plan; and Contingency Plan.
8-RDlRA Implementation
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The pre-final/final design review is the last review of the RD and should be based upon the
approved preliminary and intermediate design submittals. The Oversight Official and
RPM assess the acceptability of the final design submittals on the basis of the same
considerations used for the preliminary design, including conformance to the ROD. The
approval of the final design is acceptance that the project may proceed to the next step;
i.e., community relations activities and preparation of an RA Work Plan.
D. Community
Relations Activities
At the conclusion of the RD, the RPM distributes to the community and other interested
persons a fact sheet on the final engineering design. The fact sheet enables EPA to inform
the public about activities related to the final design, including the schedule for imple-
menting the RA, what the site will look like during construction, the roles of the PRP and
EPA, the Contingency Plan, and any potential inconveniences such as excess traffic and
noise. The RPM also should provide an opportunity for a public briefing to be held near
the site prior to initiation of the RA. A public briefing may be necessary, and can serve to
address issues such as construction schedules, changes in traffic patterns, location of
monitoring equipment, and the methods by which the public will be informed of progress
at the site.
E. Initiate Remedial
Action Oversight
After completion of the RD, the RA begins, during which the actual implementation of the
remedy occurs. Exhibit IX-3 presents a flow chart that illustrates the RA process of the
focused approach to oversight. As in Exhibit IX-2, the "diamonds" represent critical
decision or review points required of the RPM.
The RPM may use a high level of oversight at the onset of the RA as determined by
requirements specified in the settlement agreement, the complexity of the remedy, past
performance of the PRPs, the qualifications of the PRPs' design and construction teams
(including the QAT) and any other relevant factors affecting the design and implementa-
tion of the RA. The level of this oversight then may be adjusted accordingly as implemen-
tation proceeds based upon the actual performance of the RA Contractor. The objective of
the oversight program is to focus the RPM efforts on the most significant aspects of the
project such as environmental protection, consideration of public health concerns, overall
quality, scheduling, major changes due to changed field conditions, emergency actions,
and project close-out.
EPA Pre-RA Review
During RA, EPA monitors and reviews the performance of the RA Contractor in building
the project. It is the PRP's responsibility to ensure that the RA Contractor meets the
quality standards specified by the design and accepted trade practices. EPA, through the
Oversight Official, monitors and reviews the work of the PRP on the basis of defined
applicable standards, in this case, approved design plans and specifications, and the
Construction QA and QC Plans. It is inappropriate for the Oversight Official to direct or
determine the means and methods of construction. Clearly defining these roles, and
adhering to them, ensures that the responsibility and accountability of the construction
project remains with the PRP.
Review RA Work Plan ^ne ^^ Work Plan is the basis for the PRP's approach to the implementation of the
designed RA. The work plan may be a negotiated part of the settlement agreement or it
may be a required submission under the agreement. As with the RD Work Plan, the RPM
and Oversight Official should thoroughly review the work plan to ensure that the PRP will
use a sound approach to the RA.
The RA Work Plan should be reviewed to ensure that it includes tentative formulation of
the RA Team, including the key personnel, descriptions of duties, and lines of authority in
the management of the construction activities; description of the roles and relationships of
RDIRA Implementation-*)
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the PRP, PRP Project Coordinator, Resident Engineer, QAT, RD Professional, and RA
Contractor; process for selection of the RA Contractor; schedule for the RA and the
process to continuously update the project schedule; method to implement the Construc-
tion QA Plan, including criteria and composition of the QAT; a Health and Safety Plan for
field construction activities; strategy for implementing the Contingency Plan; procedure
for data collection during the RA to validate the completion of the project; and require-
ments for project closeout. As with the RD Work Plan, the RPM and the Oversight
Official will use this evaluation to assist in determining the initial level of oversight
required for construction activities.
Review RA Contractor The PRP is responsible for selecting the RA Contractor, whether through a competitive
Qualifications bidding process or the assignment of PRP "in-house" resources. As may be required by
the terms of the settlement agreement, EPA reviews and approves the selection of the
PRP's preferred RA Contractor using the following criteria for guidance: an evaluation of
the professional and ethical reputation as determined by inquiries with previous clients and
other references; and the RA Contractor's previous experience in, and demonstrated
capabilities to perform, the type of construction activities to be implemented. If EPA
disapproves the contractor submitted by the PRP, the PRP would submit a list of contrac-
tors acceptable to the PRP as "Supervising Contractor(s)" to EPA; EPA would provide a
written notice of the contractors it finds approvable, from which the PRP may select.
RPMs should defer to the advice of Regional Counsel and the relevant language in EPA's
" Draft Model CERCLA RD/RA Consent Decree" regarding EPA review of the RA
Professionals' qualifications. The RPM and the Oversight Official should use this evalua-
tion with the results of the review of the RA Work Plan to assist in determining the initial
level of oversight required for construction activities.
Review QAT Qualifications The QAT is used to provide a level of confidence to the PRP by selectively testing and
inspecting the work of the RA Contractor, and ensuring the Construction QC Plan is being
effectively implemented. They may be separate consultants working for the PRP under a
contractual relationship or they might be "in-house" personnel assigned to the project; in
either case, the QAT must be independent of the constructor. EPA reviews and approves
the selection of the QAT using the following criteria for guidance: an evaluation of the
professional and ethical reputation as determined by inquiries with previous clients and
other references; the qualifications and expertise of the inspection personnel should be
commensurate with the scope of the project; and confirmation that the QA team is truly
independent and autonomous from the RA Contractor.
If a PRP elects to use "in-house" resources to implement the RA, it is inappropriate for
PRP "in-house" personnel to also be used for QA. Because it is necessary for the QA
Team to be completely independent of the contractor so the results of the QA are unbiased
and objective, EPA should insist on the use of an independent firm, hi a small minority of
projects, the PRP may be unwilling to hire a QAT and/or is not required to do so under the
terms of the settlement agreement. In these cases, EPA may decide to hire a QAT or use
its Oversight Officials to ensure that the project is constructed properly.
Review Construction Construction QA/QC should be a requirement on all construction projects. The RA
QA/QC Plans Contractor is responsible for all activities necessary to manage, control, and document
work so as to ensure compliance with the project requirements (i.e., plans and specifica-
tions.) The Construction QA Plan is normally prepared by the RD Professional and is
submitted with the final design. It is the responsibility of the Resident Engineer to imple-
ment it through the QAT. The use of the QAT will provide for an unbiased implementa-
tion of the Construction QA Plan. More information on this construction QA/QC is
provided in the "Guidance on EPA Oversight of RD/RAs Performed by PRPs."
10-RDlRA Implementation
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Exhibit IX-3
Remedial Action Oversight Process
PRP
I
EPA
OVERSIGHT OFFICIAL
PREPARE RA WORK PLAN
REVIEW RA WORK PLAN
NO
SELECT RA CONTRACTOR,
QATEAM
I
YES
I
REVIEW QUALIFICATIONS
PREPARE CONSTRUCTION
QCPLAN
I
REVIEW CONSTRUCTION QC PLAN
NO
YES
PRE-CONSTRUCTION CONFERENCE
CONSTRUCTION
?
IMPLEMENT
CONSTRUCTION QA/QC
PLANS
i i
1 1
I i
— ~- nvFn^inHT
i i
PRE-FINAL / FINAL INSPECTION
PASS
NSPECTIO
CORRECT PUNCH LIST
PREPARE REMEDIAL
ACTION REPORT
REVIEW REMEDIAL ACTION REPORT
APPROVAL
?
INITIATE O & M
-------
The Oversight Official should assist the RPM in reviewing each of the above plans. The
review should focus on determining that the Construction QC Plan is consistent with the
requirements of the plans and specifications, and that the Construction QA Plan ensures
the performance standards will be met. The review should examine the appropriateness
and the frequency of the tests and inspections identified in both plans. Reviewing the
Construction QA and QC Plans will assist the Oversight Official in developing a strategy
to spot check the PRP's QA program.
F. Hold
Preconstruction
Conference
The PRP will initiate a pre-construction conference prior to the start of construction on the
project. The participants would include representatives of all parties involved in the RA
(e.g., RPM, Oversight Official, PRP, RD Professional, QAT, and RA Contractor). The
purpose of this meeting is to establish relationships among all parties involved in the RA
implementation. The agenda should include items such as: introducing the members of
each team; discussing EPA's expectations for the project; reviewing general project scope
and requirements specified in the settlement agreement; reviewing the final Construction
QA and QC Plans; reviewing the project schedule; reviewing roles and responsibilities of
all parties; establishing procedures to resolve disputes or misunderstandings during
construction; review of emergency actions and the Contingency Plan; and reviewing
endpoint activities and procedures for project completion. The tone of this meeting will
help the RPM to determine the level of oversight necessary for the project.
Implement K 's me RPM's responsibility to monitor PRP compliance with the settlement agreement
Remedial Artinn ^ a^ documents ^d plans included therein by incorporation or reference. The RPM
uses all the information and interactions to monitor PRP compliance and has the flexibility
to adjust the level of oversight as determined to be necessary.
RPM Role/Responsibilities
If it is determined that the PRP is failing to comply with the terms of the settlement
agreement, the problem can be approached as follows: identify the problem and devise
corrective actions that are consistent with the settlement agreement; document all contacts
with the PRPs concerning the inadequacies of the implementation; discuss the proposed
corrective action with Regional management to ensure the RPM is maintaining a consis-
tent Regional approach in overseeing the PRP's response activities; and contact the Office
of Regional Counsel for advice on how to proceed in the event enforcement becomes
necessary.
Oversight Official
Role/Responsibilities
The Oversight Official reports to the RPM and supports the RPM in monitoring PRP
compliance with the settlement agreement, the plans and specifications, and the Construc-
tion QA and QC Plans. Responsibilities that the RPM may assign to the Oversight
Official include: attendance at the pre-construction conference, progress briefings, and any
other meetings as required; making on-site observations of the work in progress to deter-
mine if the work is generally proceeding in accordance with the plans and specifications,
and the Construction QA and QC Plans.
The Oversight Official is a representative of the EPA and does not have authority to
authorize any deviation from the contract documents or assume any of the responsibilities
of the contractor, subcontractor, or their superintendents. This includes advisement on or
issuance of instruction concerning the constructor's techniques or performance of duties.
Responding to Immediate
Danger or an Emergency
In the event any action during the performance of the remedial activities causes or threat-
ens a release which may present an immediate danger to the on-site construction workers,
the PRP shall take actions in accordance with the Health and Safety Plan. If there is a
RDIRA lmplementation-l I
-------
substantial danger to the off-site public health or environment, the Contingency Plan shall
be implemented. (For more information see the Guidance on EPA Oversight of RD/RAs
Performed by PRPs.) This plan is written for the local affected population, hi either case,
the EPA must be notified.
During an emergency, the RPM and the Oversight Official should closely monitor the
situation to determine that the Health and Safety Plan and Contingency Plan are being
implemented. EPA does have the authority to stop work on the site if the conditions
present an imminent and substantial endangerment to public health or welfare or the
environment.
H.
Pre-Final/Final
Inspection
The PRP conducts pre-final and final inspections with the RA Contractor. These inspec-
tions ensure that contract work is complete. EPA may or may not be invited to attend
these inspections. The PRP also conducts pre-final and final inspections of completed
work with EPA, the Oversight Official, and other agencies with a jurisdictional interest in
attendance (e.g., the State). The purpose of the inspection is to determine if all aspects of
the plans and specifications have been implemented at the site. If any items have not been
completed the PRP will develop a punch list which details the outstanding items still
requiring completion or correction before acceptance of work. Acceptance of work may
not be granted until the startup and operation of treatment systems. This also may include
a demonstration that performance standards have been met.
The RPM and the Oversight Official should take careful notes of all corrective and extra
work required to meet the requirements of the design plans and specifications. These notes
should be carefully compared to the punch list developed by the PRP.
A final inspection should be conducted when all the items on the punch list have been
completed. All items indicated as requiring correction on the punch list should be rein-
spected, and all tests that were originally unsatisfactory should be conducted again. A
final punch list should be developed for any outstanding deficiencies still requiring
correction.
I. Prepare Remedial
Action Report
At the completion of the RA and correction of all punch list items, the PRP (usually the
Resident Engineer) prepares a "Remedial Action Report" (Remedial Action Report) which
certifies that all items contained in the settlement agreement and any incorporated docu-
ments (e.g., plans and specifications) have been completed. The report includes documen-
tation (e.g., test results) substantiating that the performance standards have been met and
also includes "Record Drawings" of the project. The RPM, with assistance from the
Oversight Official, reviews the Remedial Action Report and verifies that all changes and
variations from the original contract drawings have been made on "Record Drawings."
When all operable units are complete, the RPM initiates the project completion and
deletion process as described in Procedures for Completion and Deletion of National
Priorities List Sites" OSWER Directive 9320.2-3 A, EPA, April 1989, as updated Decem-
ber 29,1989 (OSWER Directive 9320.2-3B).
12-RD/RA Implementation
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Section III. Planning and Reporting Requirements
A new "category" was added to the NPL, called the "Construction Completion" Category.
The category consists of a) sites awaiting deletion; b) sites awaiting deletion but for which
CERCLA section 121(c) requires reviews for the remedy no less often than five years after
initiation; and c) sites undergoing long-term response actions (LTRAs). (See NCP, section
300.425(d)(6)).
A.
SCAP/STARS RPMs must ensure that current information on RD/RA activities is entered into CERCLIS/
WasteLAN for the SCAP. This section discusses the planning and reporting requirements
for RD/RA activities. RPMs also are responsible for ensuring that an accurate CERCLIS/
WasteLAN site information form (SIF) is completed for RD/RA activities.
SIF Instructions for
RD/RA Implementation
RD and RA activities are planned site, OU and project specifically and reported in
WasteLAN. Initial schedules for RDs and RAs are established when the RI/FS for the site
is initiated. These initial schedules must be updated in WasteLAN as better planning data
become available. RPMs are responsible for ensuring that accurate data are reported into
CERCLIS/WasteLAN. The RPMs should enter the data or provide the information to the
IMC for entry. RDs and RAs are tracked by SCAP/STARS through CERCLIS. Exhibit
IX-4 summarizes SCAP/STARS targets relevant to RDs.
Exhibit IX-4
SCAP/STARS Targets for RDs
Activity
Remedial Design (RD) Starts
(S/C-4)
First
Subsequent
Remedial Design (RD)
Completion
First
Subsequent
STARS
Target
SCAP
Target
X
X
X
X
Quarterly
Target
X
X
X
X
X
Annual
Target
X
X
X
X
X
Definitions for:
RD Starts-First and Subsequent - The obligation of funds for design assistance
or technical assistance do not constitute an RD start. Under certain circumstances,
an RD may be prepared by other parties (i.e., water lines where the city already
prepared plans and specifications); or the plans developed for one site may be used
at a similar site. Subsequent RD starts occur at NPL sites where previous RD
activity has taken place. The definition of accomplishment for an RD start
depends on the lead.
Fund-financed - (Includes F and S lead events) A Fund RD start is counted when
funds are obligated. An obligation is made when:
- The CO signs the contract modification for the RD
RD/RA Implementation-!3
-------
A CA is signed by the Regional Administrator or a designee: or
- An IAG is signed by the other Federal agency.
In those instances where RD activities are conducted prior to ROD signature and
there is not a new obligation of funds for a subsequent RD, the start of RD is
defined as the approval of the work plan to conduct these activities. If there is a
new obligation of funds, the start of RD is defined as the date funds are obligated.
When an RD has been prepared by other parties or plans developed for a similar
site will be used, the RD start date is the same as the RA start date.
+ PRP-financed - (Includes MR, RP, and PS lead events) For MR and RP lead, the
start is credited on the date the Region approves the PRP design contractor and an
enforcement document, which clearly spells out EPA's expectations with respect to
the RD, exists or is planned. The appropriate dates for the RD start and the
associated enforcement document must be entered in WasteLAN.
For PS lead sites, credit will be given based on the issuance of a State order or
other comparable State enforcement document for RD (or RD/RA) or, if the RD is
covered by a pre-existing State order, the RD notice to proceed date. If PRPs are
doing the work "in-house" pursuant to an enforcement settlement document, the
start date is when EPA allows the PRPs to proceed.
Separate first and subsequent start SCAP targets are established. Separate Fund,
PRP, and Federal Facility financed RD start goals are established prior to the FY.
• RD Completions-First and Subsequent - An RD is complete when the plans and
specifications and, in the case of a Fund-financed RD, an RA bid package for the
selected remedy are developed. The definition of accomplishment for an RD
completion depends on the lead
* Fund-financed - For F or S lead RD projects, an RD completion is the date that
EPA concurs on or approves and accepts the plans, specifications and RA bid
package. When the Fund performs the RD and the PRPs will do the RA under a
CD, the RD completion is the date that EPA concurs on or approves and accepts
the plans and specifications
* PRP-financed - An RD is complete on the date that EPA concurs on or approves
and accepts the plans and specifications. For PS-lead RDs, the RD is complete
when the State concurs on or approves and accepts the plans and specifications
* Federal Facility - An RD is complete on the date of EPA approval of the final RD
package.
Separate SCAP targets are established for first versus subsequent and Fund/PRP versus
Federal Facility RD completions.
14-RD/RA Implementation
-------
Exhibit IX-5
SCAP/STARS Targets for RAs
Activity
Remedial Action (RA) Starts
First RA Start
Subsequent RA Start
Fund
PRP
Federal Facility
Award of RA Contract
(S/C-1)
First RA Contract Award
Subsequent RA Contract
Award
RA Completion (S/C-2)
First RA Completion
Subsequent RA
Completion
Final RA Completion
STARS
Target/
Measure
X
X
X
SCAP
Target
X
X
X
X
X
X
X
X
X
Quarterly
Target
X
X
X
X
X
X
X
X
X
X
X
X
Annual
Target
X
X
X
X
X
X
X
X
X
X
X
X
In addition to RDs, RAs are tracked by SCAP/STARS through CERCLIS. Exhibit IX-5
summarizes SCAP/STARS targets relevant to RAs.
Definitions for:
• RA Start-First and Subsequent - An RA start is the implementation of the
remedy selected in the ROD at final NPL sites that is intended to ensure protection
of human health and the environment. The definition of accomplishment for an
RD start depends on the lead
* Fund-financed - (Includes F or S lead events) Credit for an RA start is given on
the date a contract modification for the RA is signed by the CO or the IAG or CA
is awarded, and funds are obligated. This date is entered into WasteLAN with the
RA event
* PRP-fmanced • (Includes RP, MR or PS lead events) Credit for an RA start is
given when one of the following occurs and has been recorded in WasteLAN:
- If work is performed by the PRPs under the same CD or UAO as the RD, the
RA start is the date EPA approves the PRP RD package (RD completion)
- If the PRP is doing work under a State order or comparable enforcement
document, and the site is covered by a State enforcement cooperative agree-
ment or SMOA (PS-lead) with a schedule for RA work at the site, and EPA
approved the ROD, the RP start is the date the State approves the PRP RD
package; or
RDIRA lmplementaiion-15
-------
- Where the Fund performed the RD or the RD was done under a settlement/
order for RD and the PRPs are doing the RA under the terms of a CD, UAO or
judgment for RA only, the RA start is the date on which the PRPs provide
notice of intent to comply with the UAO (C2801="NC") or the date the CD is
referred to HQ or DOJ (as recorded in WasteLAN). Where the PRP is in
significant non-compliance with the UAO, credit will be withdrawn.
For Fund and PRP financed actions, the Region must enter the Remedial
Technology of the RA into the RA technology Type data field (C3401=RT) and
the remedial technology types data fields (C3402-C3411). Fund and PRP RA
starts is a SCAP target.
Federal Facility - Credit for an RA start is given on the date which substantial,
continuous, physical, on-site, remedial actions begin pursuant to SARA section
120. Federal Facility RA starts is a STARS target
RA Contract Award (S/C-1) - Award of RA contract is the initiation of on-site
construction activities for the remedy selected in the ROD. Individual targets are
negotiated in SCAP. RA contract award triggers the date for completion of Five
Year Reviews. The definition of accomplishment for an RD start depends on the
lead
Fund-financed - (Includes F or S lead events) Sites where the EPA, a State, the
USACE or BUREC has awarded a contract to initiate a Fund-financed RA. If the
ARCS contractor is assigned RA responsibility, the award of RA contract is
defined as the date the RA subcontract is awarded. If the Emergency Response
Cleanup Services (ERCS) contractor will be performing me RA, award of the RA
contract is defined as the obligation of funds to the ERCS contractor for the RA
PRP-financed • (Includes RP, MR or PS lead events) Sites where the PRP has
begun substantial and continuous physical action, which is equivalent to an EPA
contract award, or where the PRP has taken equivalent action with its own work
force
First and subsequent, Fund and PRP RA contract awards are a single STARS
target.
Federal Facility - Date where the Federal agency has begun substantial and
continuous physical action at a site, which is equivalent to an EPA contract award,
or the date where the Federal agency has taken equivalent action with its own work
force. Federal Facility award of RA contract is a SCAP measure.
RA Completion (S/C-2)-First and Subsequent - A first and subsequent RA is
complete when construction activities are complete, a final inspection has been
conducted, the remedy is operational and functional (O&F) and an RA Report has
been prepared. This report summarizes site conditions and construction activities
for the OU.
The definition of accomplishment is the date that the designated Regional official
(Branch Chief or above) signs a letter accepting the RA Report for the first or
subsequent RA. The contractor's construction manager submits a signed RA
report to document the completion of all construction activities for that OU, and
that the remedy is O&F. In lieu of a report from the contractor's construction
manager, the Region must prepare a report to document the completion. The
appropriate date must be recorded in WasteLAN with the RA event.
Commitments are made on a combined Fund and PRP basis. Federal Facility RA
completion commitments are made separately. First and subsequent Federal
Facility RA completions are SCAP targets. First, subsequent and final Fund and
PRP RA completions are a combined STARS target, separate targets are estab-
16-RDIRA Implementation
-------
lished in SCAP. Final RA completions are also included in the STARS target S/C-
3, NPL Sites That Have Been Completed.
* Final RA Completion (S/C-2) - A final RA is complete when:
- Construction for all OUs is complete
- A pre-final inspection has been conducted
- A Preliminary Site Close-Out Report has been prepared. This report documents
the completion of physical construction, summarizes site conditions and con-
struction activities and, as appropriate, provides the schedule for the joint final
inspection (required before the start of the O&F phase), approval of the O&M
work plan, and establishment of institutional control. The date of the Preliminary
Close-Out Report must be reported in WasteLAN with the RA Subevent,
Preliminary Close-Out Report Prepared (C3101=CC)
- A final inspection has been conducted
- The remedy is O&F
A letter accepting the RA report has been signed by the designated Regional
official. The date of the letter is entered into WasteLAN as the RA completion
date (C2101=RA), and
- An Interim Site Close-Out Report or Final Superfund Site Close-Out Report has
been prepared. An Interim Site Close-Out Report must be prepared if the only
activity remaining is Long Term Response Action.
The final RA is complete on the date the Regional Administrator signs the Interim Site
Close-Out Report or Final Superfund Site Close-Out Report documenting completion of
the final RA. The appropriate date must be recorded in WasteLAN with the Close-Out
Report RA subevent (C3101=CL).
The date of completion of the Preliminary Close-Out Report must be entered into
WasteLAN with the Preliminary Close-Out Report Prepared subevent (C3101 =CC). The
date of the letter accepting the RA Report must be entered into WasteLAN with the RA
event (C2101=RA). The date the Regional Administrator signs the Interim or Final
Superfund Site Close-Out Report must be entered into WasteLAN with the Close-Out
Report subevent (C3101=CL).
First, subsequent and final, Fund and PRP RA completions are a combined STARS target;
separate targets are negotiated in SCAP. Final Fund and PRP RA completions also are
included in the STARS target S/C-3, NPL Sites That Have Been Completed. Final Federal
Facility RA completions is a SCAP measure.
OERR/OPM is currently developing coding guidance for events (RI/FS, ROD, RD/RA).
Remedial Design RDs are planned on a site-specific basis. Initial schedules for RD are established when RI/
Activities ^S activities are initiated at the site. The RPM should ensure that these initial schedules
are updated in CERCLIS/WasteLAN as more accurate planning data become available.
There are four separate SCAP and STARS activities: First RD Start; Subsequent RD
Start; Final RD Completion; and Subsequent RD Completion.
The CERCLIS/WasteLAN definitions of first, subsequent, and final RD starts are com-
bined.
RD/RA lmplementation-17
-------
Remedial Action Remedial actions are planned on a site-specific basis and reported in CERCLIS/
Activities WasteLAN. The Regions are responsible for identifying RA projects and associating
planned obligations with these sites.
Seven SCAP and STARS activities are tracked:
* First RA Start
* Subsequent RA Start
* First RA Contract Award
* Subsequent RA Contract Award
* First RA Completion
+ Subsequent RA Completion
«• Final RA Completion.
RA starts (first, subsequent, and final) are targeted on a combined program basis. RA
completions and final RA completions also are targeted on a combined basis.
18-RD/RA Implementation
-------
Section IV. Potential Problems/Resolutions
Oversight For pRp-lead RD/RAS, the oversight funding is obtained from the remedial budget. If the
RPM requires technical assistance in performing his/her oversight responsibilities, the
primary contract vehicle is ARCS. RPMs also should be aware that the Agency encour-
ages use of the U.S. Army Corps of Engineers for providing technical assistance. In
addition, in-house technical assistance often is available, which proves to be both cost-
effective and timely, hi addition to contractor support, EPA should assemble a peer
review team comprised of various senior RPMs and specialty experts (i.e., wetlands expert
to review wetland issues). EPA also can seek technical advice through lAGs as vehicles to
access specialty experts from such organizations as the U.S. Fish and Wildlife Service,
NOAA, and Marine Fisheries.
B.
Incentives for
Successful
Performance
C.
Compliance
Monitoring
To enhance a cooperative problem-solving approach for the PRP-lead RD/RA, the RPM
should identify areas in which the PRP has achieved significant success in remedying the
problems caused by the hazardous substance release. RPMs could acknowledge these
accomplishments by suggesting that Regional management either send a letter to the PRP
or provide public acknowledgment in the media (newspapers, television, or radio). Perfor-
mance incentives are effective and inexpensive support for the PRP to continue to achieve
steady RD/RA implementation progress. Successful PRPs also serve as role models for
other PRPs.
If the PRP sustains its outstanding performance resulting in steady RD/RA implementation
progress, the RPM may suggest that Regional management approve a more flexible EPA
oversight posture.
If the RPM determines that the PRP is failing to comply with the terms of the Consent
Decree, the RPM should generally approach the problem in a constructive manner. The
RPM's first course of action is to:
• Identify the problem and devise appropriate corrective action based on the terms
agreed to in the consent decree for addressing late or inadequate performance by the
PRPs
• Document thoroughly all contacts with the PRPs concerning the inadequacies of their
implementation
• Discuss the proposed corrective action with Regional management to determine
whether the RPM is maintaining a fair and consistent Regional approach in overseeing
the PRP's response activities
+ Contact ORC for advice on how to proceed in the event enforcement becomes
necessary.
After determining whether the proposed corrective action is consistent with the Region's
approach, the RPM should initiate a discussion with the PRP to identify appropriate
corrective actions. For example, the RPM could take any one of the following types of
corrective action:
• Send a warning letter to the PRP describing the problem and the desired response
* Hold a formal meeting with the PRP
* Provide the PRP with additional guidance to clarify EPA requirements
* Expand the level of EPA oversight by increasing the level of communications and
number of site visits.
If the corrective actions do not alter the PRP's performance and significant problems
continue to persist, then the RPM may advise the Regional Administrator to take one of
the following corrective measures:
RD/RA Implementation-^
-------
* Issue a Stop Work Order
• Invoke stipulated penalties
* Initiate administrative or judicial measures
+ Revert to Fund-lead RD/RA.
Before requesting the Regional Administrator to impose these measures, the RPM must
thoroughly document the specific problems and the corrective actions attempted.
More information on compliance monitoring can be found in the OSWER memorandum,
"Follow-up on Compliance Monitoring " (June 28,1991).
D. Site ACCOSS The PRP 's responsible for obtaining the necessary site access. Securing appropriate site
access early in the RD phase will ensure that no unnecessary construction delays will be
caused by either the site owner or the adjoining property owners. RPMs should check to
see that the site access obtained by the PRP extends for the duration of the RA and the
O&M phases of the response activities when appropriate.
Voluntary access should be obtained whenever possible. Techniques for facilitating
voluntary site access include personal contacts with adjacent property owners and a good
community relations campaign. If the PRP has difficulty in obtaining voluntary site
access, the PRP should notify the RPM in writing. Upon receiving this written notice, the
RPM should consult with the Office of Regional Counsel (ORC) and the HSCD Regional
Coordinator for advice and assistance.
Section 104(e)(5)(b) of CERCLA authorizes the Agency to either seek an Administrative
Order to prohibit interference with entry or to go directly to court to obtain compliance
with its requirement for entry. EPA may use this authority whenever it can establish that
there is a reasonable basis to believe that there may be a release or a threatened release of a
hazardous substance and access is necessary to carry out response or determine need for
response.
Under section 106(a) of CERCLA, the government also may petition a court to grant an
injunction directing immediate compliance with the request for entry. This authority may
only be invoked if EPA can show that there is an imminent and substantial endangerment
to public health and welfare or the environment because of a release or threatened release
from a facility. A case example of a non-settling PRP denying site access to settling PRPs
is discussed below. For a more thorough discussion of site access, see OSWER Directive
9829.2 "Entry and Continued Access Under CERCLA" (June 5,1987).
The issue of site access may cause problems when some, but not all, PRPs agree to
implement RD/RA activities under EPA supervision. The case of U.S. v. Murtha in
Region I illustrates this point.
In Murtha, the Agency entered into a settlement agreement with 32 corporations alleged to
have generated hazardous waste. The terms of this agreement were embodied in a Consent
Decree. It obligated the settling PRPs to implement the remedy chosen by EPA for the
site.
Most PRPs involved at the site were parties to the Consent Decree. However, the owner of
the facility failed to reach a settlement agreement with EPA. Although the owner did not
oppose EPA's right to access, the owner sought to block the settling PRPs and their
contractors from entering the site to conduct the response activity because of his contention
that he would be liable for their negligence in carrying out the remedy. EPA brought suit
against the owner seeking an injunction requiring the owner to permit the settling PRPs to
enter the site.
The court decided that the owner of a facility does not have veto power over necessary
remedial actions. The court relied upon a broad interpretation of section 106(a) of
CERCLA to provide the authority for the settling PRPs to gain site access. The court ruled
20-RD/RA Implementation
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that an owner-in-possession of a facility cannot halt the remedial process merely because
he did not join in a settlement agreement with EPA. The court issued an injunction
granting EPA and the settling PRPs full unrestricted access for the purpose of conducting
response activities at the site.
The Murtha case demonstrates how the problem of site access can be addressed in situa-
tions in which section 104(e) of CERCLA is not sufficient to provide what the Agency
needs. Section 106 of CERCLA grants the Agency authority to seek injunctive relief
when a non-settling PRP seeks to interfere with a PRP-conducted remedial action that it is
undertaking pursuant to a consent decree.
RD/RA lmplemenlalion-21
-------
Section V. References
Policy
"National Oil and Hazardous Substance Pollution Contingency Plan," Preamble and Final
Rule (40 CFR Part 300, Section 300.435) (March 8,1990).
Guidance
OSWER Directive 9320.2-3A, "Procedures for Completion and Deletion of Sites from the
NPL" (April 1989), as updated December 29,1989 (OSWER Directive 9320.2-3B).
OSWER Directive 9355.O-4A, "Superfund Remedial Design and Remedial Action
Guidance" (June 1986).
OSWER Directive 9355.1-02, "The RPM Primer: An Introductory Guide to the Role and
Responsibilities of the Superfund Remedial Project Manager" (September 1987).
OSWER Directive 9355.5-01, "Guidance on EPA Oversight of Remedial Design and
Remedial Actions Performed by Potentially Responsible Parties," Interim Final (April
1990).
OSWER Directive 9355.5-02, "Guidance on Expediting Remedial Designs and Remedial
Actions" (August 1990).
OSWER Directive 9829.2, "Entry and Continued Access Under CERCLA" (June 5,1987).
OSWER Directive 9835.4-2A, "Initiation of PRP-Financed Remedial Design in Advance
of Consent Decree Entry" (November 1988).
American Society of Civil Engineers' publication entitled Quality in the Constructed
Project: A Guideline for Owners, Designers and Constructors. Volume 1, Preliminary
Edition for Trial Use and Comment, May 1988.
Manuals
OSWER Directive 9355.1-1, Superfund Federal-Lead Remedial Project Management
Handbook (December 1986).
OSWER Directive 9355.2-1, Superfund State-Lead Remedial Project Management
Handbook (December 1986).
OSWER Directive 9200.3-01B, Superfund Comprehensive Accomplishments Plan (SCAP)
Manual (updated annually).
Memorandum
OERR/OWPE, "Follow-up on Compliance Monitoring" (June 28, 1991).
Contacts
Technical Issues and Oversight
Office of Emergency and Remedial Response (OERR), Hazardous Site Control Division
(HSCD), Design and Construction Management Branch (DCMB), 703-603-8830.
Access
Office of Enforcement (OE)-Superfund, at 202-260-3050.
Training
"Introduction to Remedial Design Schedule Management," course offered periodically by
OERR. For further information call 703-608-2180.
"Management of Construction in the Superfund Program," course offered periodically by
OERR. For further information call 303-236-8330.
22-RD/RA Implementation
-------
X. OPERATION AND
MAINTENANCE
-------
Chapter X
Operation and Maintenance
Section I. Description of Activity 1
Introduction 1
Section II. Procedures and Interactions 2
A. Settlement Negotiations 2
B. O&Mplan 2
C. O&M Oversight 2
Section III. Planning and Reporting Requirements 3
Section IV. Potential Problems/Resolutions 4
A. State Funding 4
B. Transfer of Property 4
C. RA Restart 4
Section V. References 5
Regulation 5
Guidance 5
Contacts 5
Operation and Maintenance-i
-------
Chapter X
Operation and Maintenance
Section I. Description of Activity
Introduction Operation and Maintenance (O&M) can be defined as those activities required for main-
taining the effectiveness of response actions. O&M will generally be required at sites
where waste has been left on site. O&M activities may include periodic inspection and
maintenance of waste containment measures, long-term air or water monitoring, certain
institutional controls, leachate collection and treatment or disposal for source control
measures, or any other periodic activity necessary to ensure the continued protection of
public health and the environment. O&M activities for non-ground water remedies begin
after the remedy has achieved the RA objectives and remediation goals in the ROD or
Consent Decree and is determined to be operational and functional. The guidelines and
types of activities required for O&M at enforcement sites are identical to those at remedial
sites.
Consistent with the NCP, the Fund may be used to finance efforts to restore contaminated
ground water or surface water to a level that ensures protection of public health and the
environment. The operation of such activities shall be considered part of the RA only for a
period of up to 10 years following construction or installation and commencement of
operation. Activities required beyond the 10-year period shall be considered O&M. These
concepts and limitations do not apply to enforcement-lead cleanups.
Fund resources shall not be used to perform O&M activities. At enforcement sites, O&M
may be conducted by the PRP, State, or other government entity (such as a county govern-
ment). EPA will not conduct or finance O&M activities at Fund-lead or non-Fund-lead
sites.
Operation and Maintenance-!
-------
Section II. Procedures and Interactions
Settlement
Negotiations
It is essential that responsibility for O&M activities and oversight be addressed during
Consent Decree negotiations. A description of required O&M activities and projected
costs for the site should be available from the FS and/or the ROD. If not, it is the RPM's
responsibility to clearly spell out the O&M activities and level of oversight that will be
required and the corresponding costs for use in negotiations. The determination of respon-
sibility for O&M and O&M oversight must be made prior to signing the CD and set forth
in the document. Every effort should be made to have the PRP perform O&M. If the PRP
will not perform the O&M, then the negotiation team should ensure that the State will
assume responsibility for these activities.
B.
O&M Plan During the Remedial Design (RD), a detailed O&M plan shall be prepared that clearly
defines the O&M activities required for the site and provides a detailed cost estimate. This
requirement should be clearly defined in the design statement of work (SOW). The O&M
plan may be amended during construction based on unexpected site conditions and the
actual characteristics of the implemented remedy. These changes to the O&M plan must
be made prior to the approval of the close out report. Exhibit X-l sets forth the basic
elements of an O&M plan. At sites where multiple operable units are implemented, it is
possible that each operable unit will require a distinct O&M activity. In this case, the
O&M activities for each operable unit will commence following completion of the RA
report for that activity and EPA's acceptance of the work and will not rely on an approved
close out report to signify the start of O&M.
O&M Oversight Responsibility for oversight of O&M activities is set forth in the settlement document. In
cases where the State is a signatory to the CD, the State may agree to assume responsibility
for oversight, hi situations where the State is a PRP, EPA may have O&M oversight
responsibilities. The oversight agency must monitor the O&M activity for compliance
with the terms of the settlement document and the O&M plan.
2-Operation and Maintenance
-------
Exhibit X-1(1)
Basic Elements of an Operation and Maintenance Plan
A. Description ot Normal Operation and Maintenance
1. Description of tasks for operation
2 Description of tasks for maintenance
3. Description of prescribed treatment of operating conditions
4. Schedule showing frequency of each O&M task
B. Description of Potential Operation Problems
1. Description and analysis of potential operating problems
2 Sources of information regarding problems
3. Common remedies
C. Description of Routine Monitoring and Laboratory Testing
1. Description of monitoring tasks
2 Description of required laboratory tests and their interpretation
3. Required QA/QC
4. Schedule of monitoring frequency and when, if so provided, to discontinue
D. Description of Alternate O&M
1. Should systems fail, alternate procedures to prevent undue hazard
2 Analysis of vulnerability and additional resource requirements should a failure occur
E Safety Plan
1. Description of precautions, necessary equipment, etc., for site personnel
2 Safety tasks required in event of systems failure (may be linked to site safety plan
developed during remedial response)
F. Description of Equipment
1. Equipment necessary for plan
2 Installation of monitoring components
3. Maintenance of site equipment
4. Replacement schedule for equipment and installed components
G. Annual Budget (to be prepared by PRP or contractor performing O&M)
1. Cost of personnel
2 Costs of preventive and corrective maintenance
3. Costs of equipment, supplies, etc.
-------
Exhibit X-1 (2)
4. Costs of any contractual obligation (e.g., lab expenses)
5. Costs of operation (e.g., utilities, energy costs)
H. Records and Reporting Mechanisms Required
1. Daily operating logs
2 Laboratory records
3. Records for operating costs
4. Mechanism for reporting emergencies
5. Personnel and maintenance records
& Monthly/annual reports to State agencies
-------
Section III. Planning and Reporting Requirements
O&M means the activities required to maintain the effectiveness or the integrity of the
remedy, and, in the case of measures to restore ground or surface waters, continued
operation of such measures beyond a period of ten years or when the remediation levels
are achieved, whichever is earlier. Except for ground or surface water actions covered
under section 300.435(f)(3) of the NCP, O&M measures are initiated after the remedy has
achieved the RA objectives and remediation goals in the ROD or CD, and is determined to
be operational and functional. The State or PRP is totally responsible for these activities
for the time period specified in the ROD or other appropriate documents.
The stan of O&M is defined as the date upon which the designated Regional official signs
a letter accepting the RA Report. This report documents that work has been performed
within desired specifications and that the remedy is functioning properly and is performing
as designed. The completion (where appropriate) of O&M is defined as the date specified
in a CA, Superfund State Contract (SSC), or CD.
O&M is planned site specifically in WasteLAN and is used for resource allocation pur-
poses only. Funds for oversight of O&M are contained in the RA Advice Of Allowance
(AOA). O&M is not tracked by SCAP/STARS.
Planning and reporting requirements are governed by the terms set forth in the settlement
document. Generally, cost documentation records must be maintained for up to 10 years
following the final claim in cases where preauthorization is part of the settlement. Consis-
tent with Fund-financed actions, EPA will not pay O&M costs. In some situations,
"shake-down" costs for a period of one year are eligible for reimbursement in
preauthorization settlements. Shake-down costs are those costs associated with ascertain-
ing that the remedy is operational and functional (i.e., operating as designed)..
Operation and Mainlenance-3
-------
Section IV. Potential Problems/Resolutions
State Funding RPMs should monitor the settlement negotiations closely to ensure that, in instances where
the State assumes O&M responsibility, the State can assure funding for the duration of the
O&M activities. Since State funding for such activities is usually appropriated yearly, the
State's assurance may require special action by the State legislature to guarantee funding.
Some State statutes prohibit the use of public funds to maintain private property. In these
cases, the PRP usually must assume responsibility for O&M, establish a trust fund or make
other arrangements to provide the State the money for O&M. The Superfund branch of the
Waste Management Division and Office of Regional Counsel in Region IV have experi-
ence handling the State funding issues discussed in this paragraph.
B.
Transfer of
Property
RPMs, in conjunction with Regional counsel, must ensure that the settlement contains
provisions in the event that the property on which the site is located is sold. The settlement
decision must contain assurances for O&M conduct and financing in the event the property
is sold. Restrictions on the use of such property may be accomplished by means of
institutional controls. Issues related to property transfer and O&M assurances must be
addressed on a site-specific basis by the Office of Regional Counsel.
RA Restart In certain instances, it may be difficult to determine when site activity falls under the scope
of routine O&M and when site activity actually represents the restart of removal or
remedial activity. For example, repairing a clay cap may be a routine measure required to
maintain the integrity of the remedy, or it may be a removal action required to abate an
immediate threat to human health, welfare, or the environment.
To prevent confusion between O&M and the restart of remedial activity, the settlement
document should contain a detailed description of what constitutes a failed remedy. The
settlement document also should contain very specific criteria for determining whether an
activity is part of O&M or actual RA. Resolution of this issue may be accomplished
through careful examination of the provisions of the settlement and site conditions by the
RPM, Regional counsel, the PRPs, and State technical personnel.
4-Operation and Maintenance
-------
Section V. References
Regulation 40 CFR P^ 3°°, "National Oil and Hazardous Substances Pollution Contingency Plan"
(1990).
Guidance OSWER Directive 9355.0-4A, "Superfund Remedial Design and Remedial Action Guid-
ance" (June 1986).
OSWER Directive 9355.0-26, "Additional Clarification on Funding Ground or Surface
Water Restoration Actions" (February 1989).
OSWER Directive 9320.2-03A-C, "Procedures for Completion and Deletion of National
Priorities List Sites" (February 1992).
Contacts Off'ce °f Emergency and Remedial Response (OERR), Hazardous Site Control Division
(HSCD), Design & Construction Management Branch, 703-603-8830.
Operation and Maintenance-5
-------
XI. SITE COMPLETION/
DELETION
-------
Chapter XI
Site Completion/Deletion
This chapter is reserved
until completion/deletion procedures
are revised.
Site CompletionlDeletion-l
-------
XII. COST RECOVERY
-------
Chapter XII
Cost Recovery
Section I. Description of Activity 1
Introduction 1
Cost Recovery for Conventional Removals 1
Cost Recovery for Sites in the Remedial Process 2
Cost Recovery in Context of RD/RA Negotiations 2
Case Referral 3
Recovery of Oversight Costs 3
Section II. Procedures and Interactions 5
A. PRP Liability 5
Elements of Liability 5
Standard of Liability 6
Scope of Liability — Joint and Several 6
Defenses 6
B. PRP Searches 7
C. Cost Recovery Strategy 7
Prioritization of Cases 7
Timing 8
Decision Not To Pursue Cost Recovery 9
Close-out Memorandum 9
D. Notification and Demand Requirements 10
Special Notice Letters 10
Demand Letters 10
Types of Costs and Pre-Judgment Interest 10
E. Documentation Requirements 11
Types of Expenditures 11
EPA Indirect Costs 12
Evidence 12
Cost Summaries 13
F. Documentation Procedures 14
G. Judicial Cost Recovery 15
Referral Package 15
Litigation Support 16
Litigation Management Plan 16
H. De Minimis Settlements 16
Necessary Information 17
Release From Liability and Reopeners 17
Cost Recovery-i
-------
I. Administrative Settlements 17
J. Enforcing Settlements 18
K. Arbitration 18
L. Mixed Funding 18
M. Bankruptcy Actions 19
Statutory Background 19
Proof of Claim 19
Environmental Claims as Priorities 20
Section III. Planning and Reporting Requirements 21
A. Planning 21
B. Budgeting 21
C. Reporting Requirements 21
Section IV. References 24
Regulation 24
Policies 24
Guidance 24
Manuals 25
Training 25
Contacts 25
Appendix
Site Litigation Management Plan A1
ii-Cost Recovery
-------
Chapter XII
Cost Recovery
Section I. Description of Activity
Introduction
When the Agency uses Fund monies for a response action at a site where there are finan-
cially viable PRPs, it is authorized to take an enforcement action against those PRPs to
recover its costs. This action, under section 107 of CERCLA, is known as a cost recovery
action. Cost recovery can be pursued for the costs of a conventional removal, Remedial
Investigation/Feasibility Study (RI/FS), Remedial Design (RD) and Remedial Action
(RA), including EPA's costs of overseeing PRP responses. The enforcement actions taken
may include issuance of demand letters, negotiations with PRPs, arbitration, alternative
dispute resolution, administrative settlement, judicial settlement, and litigation.
This chapter provides RPMs/OSCs with an overview of the central components of cost
recovery actions. The information is organized to follow the chronology of tasks mat an
RPM/OSC manages in a cost recovery action.
There are two major types of cost recovery actions:
* Cost Recovery for Removals
+ Cost Recovery for Remedials.
As part of each type of cost recovery action, EPA may recover past and future response
and oversight costs, indirect costs, and interest. Cost recovery cases are not limited to one
type of cost, but include the direct and indirect costs related to remedial and removal
actions plus interest on these costs. Indirect costs include things such as employee
overhead, rent, electricity, etc. In such cases, documents relevant to all aspects of the case
must be compiled. Each of these types of cost recovery actions is discussed briefly below
and Exhibit XII-1 presents a graphic description of the process of each type of action.
EPA must file cost recovery actions within certain timeframes specified in the statute.
These statute of limitations (SOL) dates are discussed later in this chapter.
COSt RCCOVGrV for
During the course of the conventional Fund-lead removal action, the OSC is responsible
for comPilin§ ^6 Administrative Record with assistance from Regional Counsel and
Administrative Record Coordinators, obtaining information on the identities of PRPs, and
ROITIOVSlS documenting the removal work undertaken and the costs incurred. As the removal is
completed, the OSC is responsible for completing the PRP search information. After the
removal is completed and the OSC files the final report for the action, the Agency must
decide whether to pursue cost recovery for its expenses. In selecting which sites to pursue,
the Agency places a higher priority on sites at which more than $200,000 was spent on the
removal action. If the Agency decides to proceed with cost recovery, three parallel
activities are conducted: (1) ensure that the liability information collected in the PRP
search meets evidentiary standards, (2) document the costs of the removal action, and (3)
review the compilation of the Administrative Record.
Once the Agency's costs have been documented and the PRPs are reasonably well identi-
fied, EPA sends demand letters to the PRPs. The demand letters notify the PRPs of their
liability for the Agency's cleanup costs and demand payment of the full costs of cleanup.
In a limited number of situations, the PRPs will respond to the demand letters by reimburs-
ing the Agency immediately for its costs. Follow up phone calls, after demand letters are
sent, may serve as an effective means to explain both what the demand letter means and
Cost Recovery-1
-------
the process, particularly to PRPs who are unfamiliar with the Superfund process. In most
situations, the PRPs will seek to negotiate with the Agency over the extent of their liability
or the costs incurred. If these negotiations result in a settlement, EPA and the PRPs may
enter into an Administrative Order on Consent that requires the PRPs to reimburse the
Agency for its costs. If the total response costs at the site exceed $500,000 (excluding
interest), the Department of Justice (DOJ) must concur on the terms of the settlement.
If the PRPs refuse to reimburse EPA for these costs, the Region will decide whether to
refer the case to DOJ to recover the money. When deciding whether to initiate a judicial
action, the Region reviews the case's priority and all available evidence and evaluates the
likely success of cost recovery efforts for that particular site. If the Region decides to
initiate the suit, the case will be referred to DOJ. In general, cost recovery cases involving
post-SARA removals (except those with section 104(c)(l)(C) waivers) must be filed
within a statute of limitations date of three years from completion of the removal.
Cost Recovery for Sites
in the Remedial Process
Cost recovery activities at sites in the remedial process are a function of past expenditures
for removals, RI/FS or RD, die outcome of RD/RA negotiations, and timing concerns
related to possible statute of limitations dates. When EPA incurs cleanup costs at a
remedial site, there are five contexts in which it may recover its costs. First, if the Agency
funds a removal or the RI/FS and the PRPs agree to perform the RD/RA, the Agency
generally recovers the costs of the removal and RI/FS from the PRPs as a part of the RD/
RA settlement. Second, if the Agency funds a removal or the RI/FS and one group of
PRPs agrees to perform the RD/RA but there is another group of viable PRPs that does not
settle for the RD/RA, the Agency may sue the non-settlors separately for all or part of its
removal and/or RI/FS costs. Third, if the Agency funds the RD/RA because there was no
settlement, it may seek to recover the costs of the entire response in a cost recovery action,
which should be developed at the commencement of remedial construction. Fourth, where
the time between the completion of a removal, RI/FS or RD and the initiation of on-site
construction is likely to exceed three years, EPA will file for cost recovery of the removal
and/or RI/FS and/or RD costs and later amend the suit to add the costs of the RA. Finally,
where there are multiple remedial operable units, EPA will pursue a cost recovery action at
the first operable unit to recover its costs and to obtain a declaratory judgment on liability
for its costs at the subsequent operable units. EPA then will bring subsequent actions for
its costs at the other operable units as they are incurred. The program operates on the
assumption that there may be different statute of limitations dates for different operable
unit activities.
Cost Recovery in Context of
RD/RA Negotiations
In general, the process for recovering the costs of activities during the remedial response is
similar to that used to recover removal costs. However, because the Agency may be
seeking either the costs of a removal or the RI/FS, the RD/RA, or several responses, the
timing of these activities may vary. When the Agency negotiates with the PRPs to perform
the RD/RA at the site, the RI/FS costs will be pursued as part of the overall negotiations.
If, however, the Agency is pursuing remedial response costs separately from a settlement
for RD/RA, separate cost documentation and demand letters will be required. Refer to
Chapter VII, RD/RA Negotiations for a more-detailed discussion of the process of RD/RA
negotiations.
The RPM, in conjunction with the ORC and the civil investigator, is responsible for five
major pre-litigation activities involved in remedial cost recovery that can be performed
concurrently and usually occur near the time that the ROD is signed. These activities are:
* Ensure that the PRP-liability information meets evidentiary standards
* Complete and certify the Administrative Record
2-Cost Recovery
-------
Exhibit XIH
Cost Recovery Process
Cost Recovery For
Conventional Removals
and Remedials With
More Than 3 Years
From ROD or RD to RA
Recovery For
dial Sites
With RD/RA
Settlement
Cost)
Rome
Without RD/RA
Settlement
Cost Recovery
For
Oversight Costs
Removal
Completion
or ROD
orRD
Review PRP
Search and
Upgrade as
Necessary
RI/FS
Near
Completion
Remedial
Design Near
Completion
Review PRP
Search and
Upgrade as
Necessary
Settlement
for PRP
Response
7
/
L7-!
\
V
^ —
Decision to
Pursue Cost
Recovery
1 No
Close-out
Memo
Yes
Ensure
Adequate
Evidence
on Liability
Activity/Cost
Doc.
Ensure
Compilation
ofAR
Activity and
Cost
Documen-
tation
Compile
Admin.
Record
Upgrade PRP
Srch. for
Special Notice
Decision to
Pursue Cost
Recovery
1 No
Close-out
Memo
*
Yes
J Special Notice
I with Demand
r| Letters
Ensure
Adequate
Evidence
on Liability
Activity/Cost
Doc.
Compile and
CertAR
Cost
Documen-
tation
Demand
Letters
Demand
Letters
RD/RA
Negotiation
Demand
Letters
(
Collection
May Repeat Annually
/
i
^
Full
Settlement
Referral
Package
Partial
Settlement
Administra-
tive
Settlement
Litigation
Finalize
Full
Settlement
Proceed
Against Non-
Settlors
]
Finalize
Settlement
Litigation
*s
-------
* Document the work performed and the costs of the removal, remedial, and oversight
activities undertaken
* Send demand letters to the PRPs, either as part of special notice letters or separately
* Negotiate with the PRPs about their liability and the extent of EPA's costs.
If this process is successful and the PRPs agree to reimburse the Agency for its costs, the
settlement usually will result in a Consent Decree.
Case Referral ^ me ^^s ^° not a£ree eitner to perform the RD/RA or reimburse the Agency's costs,
EPA will develop a case to sue some or all of the PRPs depending on their liability and
financial viability, the universe of PRPs, and their contributions. This case, developed at
the time the remedial action starts, will seek to recover EPA's past and future costs, plus
interest. The first step in this process is to prepare a referral package. The case team
prepares the case for referral to DOJ. The team is charged with assembling all pertinent
facts and documents concerning the response decision and underlying record; PRP
liability, defenses and viability; and response activities and costs into a litigation referral
package. Assembling cost documentation will require the case team to coordinate its
efforts with Regional financial personnel, the Financial Management Division (FMD), and
OWPE. Another integral part of the litigation referral package is the work performed
documentation. DOJ places particular emphasis on its inclusion in the package, because it
ensures that the court knows what work was performed at the site. Work performed
documentation includes monthly contractor progress reports, copies of deliverables
received, action memos, and RODs. The final product of the case team's work is a referral
package.
The completed direct cost referral package is sent to DOJ for litigation. As DOJ develops
the case, members of the case team will be called upon to perform litigation support
activities. This may involve support activities ranging from consultation with the case
attorneys on technical aspects of response authorization, to time consuming involvement
in complex litigation, to testimony in court. The RPM/OSC also must budget and manage
litigation support contractors, and can expect to be called upon to provide his/her technical
expertise to help prosecute the cost recovery case.
For more information on litigation support, contact DOJ's Litigation Support Group at
202-616-3309.
Rornvorv nf DvorQinht ^PA may recover its costs when the PRPs perform a removal or remedial action and the
y " Agency incurs costs in overseeing that action. If the response action is an RI/FS, section
COStS 104 of CERCLA requires that the PRPs reimburse the Agency for these costs. In other
contexts, this reimbursement of oversight costs is required by EPA policy. The agreement
to pay EPA's oversight costs generally will be a part of the settlement document for the
PRP's response action. That document should specify what the Agency must give the
PRPs to document its costs, such as a standard report from the Integrated Financial
Management System, and how often the PRPs will reimburse the Agency. PRPs often
reimburse the Agency on a semi-annual or annual basis. In situations in which the consent
order for an RI/FS or consent decree for RD/RA specifies the cost categories and docu-
mentation to be provided by EPA as part of its billings, the documentation process should
foster fewer disputes than in instances in which the settlement document is less specific.
RPM/OSCs should provide a copy of the settlement document to financial management
staff in order for accounts receivable to set up an account for the PRP and, later, to bill
them.
Cost Recovery-3
-------
References
Proposed Cost Recovery Rule, 57 Federal Register (152) (August 6,1992).
OSWER Directive 9832.13, "The Superfund Cost Recovery Strategy" (July 1988).
OSWER Directive 9832.11, "Guidance on Documenting Decisions Not to Take Cost
Recovery Actions" (June 1988).
OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs for CERCLA Section
107 Actions" (January 1985).
OSWER Directive 9832.1, "Cost Recovery Actions Under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980" (August 1983).
OSWER Directive 9835.11-1, "Model Litigation Report for CERCLA sections 106 and
107 and RCRA section 7003 Actions" (June 21,1989).
4-Cosl Recovery
-------
Section II. Procedures and Interactions
CERCLA establishes the liability of responsible parties for the costs the government
incurred when responding to a release of hazardous substances. There are three key
statutory provisions:
* Section 107 of CERCLA authorizes the Agency to seek cost recovery and pre-
judgment interest through judicial action
* Section 1 22 of CERCLA establishes conditions on settlements
* Section 122(h) of CERCLA authorizes the Agency to enter into administrative
settlements with PRPs, but requires DOJ approval when the total response costs at the
site exceed $500,000. The authority to settle cost recovery cases administratively was
delegated to the Regional Administrators by Delegation 14-14-D (Sept. 21, 1987).
Section 122(h)(3) of CERCLA provides the Agency with the necessary authority to
enforce these settlements.
The Agency's cost recovery strategy emphasizes negotiating administrative settlements
whenever possible and litigating only when necessary. The Regions have been delegated
the authority to enter into administrative settlements.
This section of the chapter discusses the following subjects that are relevant to the cost
recovery process:
A. PRP Liability
B. PRP Searches
C. Cost Recovery Strategy
D. Notification and Demand Requirements
E. Documentation Requirements
F. Documentation Procedures
G. Judicial Cost Recovery Actions
H. De minimis Settlements
I. Administrative Settlements
J. Enforcing Settlements
K. Arbitration
L. Mixed Funding
M. Bankruptcy
Each is presented below.
PRP Liability ^"s section discusses the nature of PRP liability for EPA's response costs. It describes
* the elements of a cost recovery case, the standard of liability that applies, the scope of the
PRP's liability, and the categories of PRPs that are liable.
Elements Ot Liability Under section 107(a) of CERCLA, the Federal government can file suit in Federal district
court to obtain reimbursement for response costs. To prove its claim for cost recovery, the
government must establish that:
* The site is a facility
* There was either an actual or threatened release of a hazardous substance from the
facility
* EPA incurred costs as a result of this actual or threatened release
Cost Recovery-5
-------
+ The defendant falls within one of the four categories of PRPs. These are:
Current owners or operators of facilities or vessels
Owners or operators of a facility at the time hazardous substances were disposed
of
- Persons who arranged for treatment or disposal of hazardous substances that went
to the site (e.g., generators)
Persons who accepted hazardous substances for transport to disposal or treatment
sites of their selection.
Proof of liability may be more complex at old sites with limited documentation. For
example, the PRP search includes obtaining evidence that the generators' materials were
sent to the site, and contained hazardous substances. Further information on elements of
liability is contained in Chapter IV, PRP Search, Notification and Information Exchange.
Standard of Liability
Section 107 of CERCLA imposes strict liability on those who are in one of the four classes
of parties described in section 107(a), rather than a negligence standard. This means that
PRPs are liable even if: the problems caused by the hazardous substance release were
unforeseeable; the PRP acted in good faith; or state-of-the-art waste management practices
were used at the time the materials were disposed. One of the most significant aspects of
CERCLA is that the PRPs are liable for both their past and present waste management
practices.
Scope of Liability —
Joint and Several
The courts have interpreted CERCLA to impose joint and several liability on PRPs where
two or more PRPs cause a harm that is indivisible, such as in the case of commingled
wastes. Under joint and several liability, each PRP can be held individually liable for all
of the costs of cleanup of a site, regardless of the amount of waste that the PRP sent to the
site. Under this legal doctrine, the Agency may choose which PRPs to sue. The Agency
does not have to sue all PRPs involved at a particular site. If EPA's suit against the named
PRPs is successful, those PRPs are liable for the entire cost of all response activities.
When the Agency recovers the cost of the response action from the named PRPs, those
PRPs may seek contribution from other PRPs. When PRPs bring a contribution action,
they seek to recover a share of the judgment from other persons who were involved at the
site, but were not sued by EPA. The Agency should not be involved in any contribution
action brought by the named PRPs.
Defenses Section 107(b) of CERCLA enumerates defenses that may be asserted by PRPs in any cost
recovery action. If RPMs/OSCs have any knowledge of a defense that a PRP may raise,
they should inform the Office of Regional Counsel (ORC).
Consistent with CERCLA's strict liability standard, three defenses are available that will
keep a PRP from being held liable for the Agency's costs. The defendant has a defense if
he/she establishes that the release was caused solely by:
* An act of God as defined in section 101 (1) of CERCLA
* An act of war, or
* A third party other than one in a contractual relationship with the defendant, if the
defendant establishes that he exercised due care and took precautions against foresee-
able acts and omissions of such third party. A subset of this defense is the innocent
landowner (purchaser) defense in section 101(35) of CERCLA.
The Agency's right to recover costs is limited by the requirement that the response action
was not inconsistent with the national contingency plan (NCP). The PRPs bear the burden
of proving that the Agency's response action was inconsistent with the NCP.
6-Cosl Recovery
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B.
PRP Searches
The purposes of a PRP search include collection of evidence of the PRPs' liability and
financial viability. In cases in which the PRPs fail to conduct the response activity and do
not agree to reimburse the government's costs, PRP searches provide much of the evi-
dence of a PRP's liability that will be used in future litigation.
The PRP search includes the collection and analysis of information about each PRP's
connection to the site. The information collection includes title searches, a review of
existing documentation such as waste manifests, responses to CERCLA section 104(e)
information requests, interviews with knowledgeable parties, and analyses of waste-in
information. A PRP search report is developed from this information, which describes in
detail each PRP's involvement with the site and the evidence that proves that involvement.
The PRP search is a fundamental component of a response action. The exigencies of the
particular site and the value of the response action dictate the scope of the initial PRP
search. The search should be initiated as early as possible to develop a site-specific
enforcement strategy. The PRP search generally continues during the response activity at
a site. Supplemental work may be necessary for cost recovery.
PRP searches are discussed in detail in Chapter IV, PRP Search, Notification, and Infor-
mation Exchange.
References
OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1987).
OSWER Directive 9834.3-2a, "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program" (June 29,1989).
C. COSt ReCOVery EPA's cost recovery strategy sets forth the Agency's priorities for cost recovery and the
steps that each response action must go through toward settlement, litigation, or site close-
Strategy
out.
Prioritization of
Cases
Once a response activity has been identified as a candidate for judicial action, Regional
management prioritizes the case to ensure that Regional resources are efficiently used to
meet the objectives of the cost recovery program, which are:
* Maximize return of revenue to the Trust Fund
* Initiate enforcement activity within strategic time frames, but no later than the date
defined by the applicable statute of limitation
* Encourage PRP settlement
* Use administrative authority and dispute resolution procedures.
OSWER has developed national case selection criteria for sites with financially viable
PRPs based on the amount of money expended at the site and the cost recovery potential.
Based on these criteria, the priorities for initiating cases are:
* NPL and non-NPL sites at which EPA has completed a removal action (including
expanded removal actions, RI/FSs, and initial remedial measures), the response costs
are $200,000 or greater, and the statute of limitations deadline is approaching
* Cases in which Fund-financed remedial design and action have been initiated. A
remedial case referral to DOJ should be scheduled for every site in this category
* Sites at which there has been a partial settlement providing the Agency with less than
full relief and there are viable non-settlors
* NPL or non-NPL sites at which EPA has completed a removal action and the costs of
response are $200,000 or greater. Depending upon resources, referrals to DOJ on
these sites should occur no later than twelve months after the completion of the
removal action
Cost Recovery-7
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* Sites at which total response costs are less than $200,000.
In addition to these five priorities, the Agency will pursue cost recovery against PRPs that
are undergoing bankruptcy proceedings in limited circumstances. Bankruptcy referrals
pose a difficult problem for four reasons: lack of PRP unencumbered resources, time
constraints, EPA resource limitations, and lack of information. RPMs should work closely
with the Regional attorneys and OE's Special Litigation Branch to resolve any bankruptcy
issues.
RPMs/OSCs must be aware of statutory time limits for filing cost recovery actions. Under
section 113(g) of CERCLA, cost recovery cases must be filed within three to six years,
Tim inn depending on the type of response. If a suit is filed after the specified time, the Agency's
* case could be dismissed.
CERCLA 113(g)(2) states that a cost recovery action must be initiated within:
* Three years after completion of a removal action or six years after the signature date
of the removal waiver
* Six years after initiation of physical on-site construction of the remedial action.
For purposes of defining the cost recovery statute of limitations, removal actions include
traditional removals, RI/FSs, and RDs. Remedial action is defined as physical on-site
construction. The statute of limitations for a removal action (as defined above), is three
years from the completion of the last removal action. For example, if a removal, RI/FS,
and RD are conducted, the SOL would be three years from the completion date of the RD.
CERCLA 113(g)(2) indicates that if the remedial action is initiated within three years of
the completion of the removal action, then removal costs may be pursued as part of the
cost recovery for remedial actions. That is, the statute of limitations for the removal action
is extended to six years from the initiation of physical on-site construction of the remedial
action.
CERCLA 113(g)(2) further indicates that where there is a declaratory judgement on
liability for response costs, the SOL for subsequent cost recovery actions is three years
after the completion date of all response activity.
Based upon experience, EPA prefers to focus its energies on completing conventional
removals before turning to cost recovery. At sites in the remedial pipeline, EPA prefers to
have selected the remedy (i.e., the Agency knows what should be done at the site) and, if
the RA is funded, to have started construction before engaging in litigation. In selecting
candidates for cost recovery, a conventional removal (not including an RI/FS) may be
ready for referral when it is completed. Remedial sites are ready for referral when on-site
construction of the RA is initiated. Removal, RI/FS, and RD response costs may be
pursued as part of RA cost recovery, unless the RA will not begin within three years of the
completion of the last response action. If the RA does not begin within three years, the
Removal, RI/FS, or RD costs should be sought separately.
Cost recovery actions for conventional removals should be referred to DOJ as soon as
possible after the action has been completed, ideally not later than one year after the
completion date. Cost recovery actions for remedial responses should be developed for
filing at the time of initiation of physical on-site construction of the RA. RPMs/OSCs
should anticipate that it takes at least two quarters to prepare a referral package.
The proposed cost recovery rule would change the definition of certain events that affect
the SOL as follows:
(a) The term "completion of the removal action" for sites where remedial actions are
taken means the date of the final remedial design prepared in connection with the
final remedial action at the site
8-Cosl Recovery
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Decision Not To
Pursue Cost Recovery
(b) The term "physical on-site construction" for remedial actions is limited to actions
that occur after completion of the remedial design and issuance of the Notice to
Proceed on which remedial action personnel are authorized to begin remedial
construction activities
(c) The term "all response action" in section 113(g)(2)(B) of CERCLA includes, but
is not limited to, all response actions that occur before the Superfund Site Close-
Out Report is signed by EPA's Regional Administrator.
The Proposed Cost Recovery rule was published in the Federal Register in August 1992.
As of this writing, the Agency is responding to comments received on the rule during the
public comment period.
RPMs/OSCs also must be aware that special circumstances, such as bankruptcy, impend-
ing fraudulent transfer of assets, or the voluntary dissolution of the business of a PRP may
require that a cost recovery case be filed on an expedited basis in order to ensure that
assets of the PRPs are available to pay for the cleanup.
References
OSWER Directive 9832.3-1 A, "Cost Recovery Actions/Statute of Limitations"
(June 1987).
Proposed Cost Recovery Rule, 57 Federal Register (152) (August 6,1992).
The Region may decide not to pursue cost recovery at a particular site after analyzing the
site's cost recovery potential. Such decisions must be documented in a close-out memo-
randum and entered into CERCLIS. A decision not to pursue further cost recovery also
can be addressed in the 10-point settlement analysis. Both of these documents provide the
Agency with a means of tracking the sites that have no further potential for cost recovery
and removing them from projections of future Fund revenues.
Information gathered during the PRP search, removal action, and the RI/FS forms the basis
of the decision not to pursue cost recovery. The possible reasons for a Region to decide
not to pursue cost recovery include:
* No PRPs were identified for the site
* PRPs identified were not financially viable
* Available evidence does not support one or more of the essential elements of a
prospective case, and there is no reason to believe that such evidence can be discovered
in the future
* Very small expenditures were incurred for the site and there are inadequate resources
to litigate.
Close-out
Memorandum
The close-out memorandum will be written by the enforcement or removal program staff
person assigned to the case. The close-out memorandum must be signed by the Regional
program division director. Where legal issues are involved, the memorandum should be
written in consultation with an ORC attorney. The memorandum and its supporting
documents are considered confidential; therefore, the close-out memorandum should pot
be placed in the Administrative Record. Chapter XV, Records Management, discusses
how to handle confidential files.
Cost Recovery-9
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References
OSWER Directive 9832.12, "Guidance on Cost Recovery Strategy" (July 1988).
OSWER Directive 9832.1 1 "Guidance on Documenting Decisions Not to Take Cost
Recovery Actions" (June 1988).
D Notification and Under CERCLA and current Agency policy, there are several different provisions for
' _ notifying PRPs of their potential liability for clean-up costs. For cost recovery purposes,
Requirements me most implant requirements are the issuance of letters with demands for reimburse-
ment, either notice letters or demand letters.
Special Notice
Letters
Special Notice Letters (SNLs) are issued prior to non-time-critical removals, RI/FSs and
RD/'RAs pursuant to section 1 22(e)( 1 ) of CERCLA when it is determined that a period of
formal negotiations would facilitate an agreement with the PRPs. Although a primary
purpose of these letters is to facilitate negotiations for prospective work, the letters also
serve as a vehicle to put past costs into the negotiations and trigger pre-judgment interest.
Planning for non-time-critical removals, RI/FS, and RD/RA should include documentation
of past costs. Special notice letters should include a demand for past as well as prospective
costs.
References
OSWER Directive 9843.10, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).
Demand Letters
t° filing a cost recovery lawsuit, as a matter of policy, EPA sends a written demand
letter to the PRPs. A demand letter is a request that the PRPs reimburse the Fund for a
specified amount, which is generally associated with one or more response activities.
Also, the written demand letter triggers the accrual of pre-judgment interest on the re-
sponse costs sought. The authority to issue demand letters has been delegated to the
Regional Administrators. RPMs should consult with the Regional management to deter-
mine who has redelegated responsibility for preparing and issuing demand letters in the
Region.
Demand letters should be sent to each PRP for each separate response activity, such as
removals, RI/FSs, RDs, and RAs. The optimum time for issuing demand letters varies,
depending on the nature of the response. For removal actions, the OSC should issue the
letter soon after the removal activities are completed and all necessary documents are
compiled. For each operable unit of remedial actions, a letter should be issued for the RI/
FS costs, RD costs and major phases of RA costs at the following times: in connection
with the ROD (in special notice); soon after the RD is completed; and soon after major
phases of the RA are completed.
References
OSWER Directive 9832.18, "Written Demand for Recovery of Costs Incurred Under
CERCLA" (March, 1991)
Types Of Costs and m accordance with section 107 of CERCLA, the demand letter should seek to recover
Pre-Judament Interest mterest fr°m me date mat a payment of specified past costs are demanded in writing, or for
future costs, the date that an expenditure is actually incurred. The demand letter should
include a request for all costs, including:
10-Cosl Recovery
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* Contractor costs
* EPA direct costs, including costs such as EPA staff salaries, travel and other
miscellaneous site-specific expenses
* Costs incurred under Interagency Agreements, including Corps of Engineers, DOJ,
ATSDR, and Coast Guard
* Costs incurred under Cooperative Agreements, including State agreements
* Indirect costs incurred by EPA for the response actions
+ Pre-judgment interest
* Future costs.
References
Comptroller Policy Announcement 87-17, "Interest Rates for Debts Recoverable Under
the Superfund Amendments and Reauthorization Act of 1986" (September 1987).
Proposed Cost Recovery Rule, 57 Federal Register (152), (August 6, 1992).
E. Documentation Tne Region's site files will contain several types of documents that can be used to support
Dam liramontc a cost recoverv action, including enforcement information, such as data on PRP liability;
Requirements me administrative record, relating to the selection of the response action; and activity and
cost documentation.
This section discusses the documents relating to the third category.
When the Region begins its cost recovery action, a Regional member of the case develop-
ment team may be designated as the Cost Recovery Coordinator in Regions that do not
already have designated Cost Recovery Coordinators. The person preparing the referral
has primary responsibility for collecting and organizing cost recovery documentation.
References
OSWER Directive 9832, "Cost Recovery Actions Under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980 (CERCLA)" (August 1983).
OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs in CERCLA Section
107 Actions" (January 1985).
FMD, "State Superfund Financial Management and Recordkeeping Guidance" (August
1987).
OARM, "Superfund Financial Management and Recordkeeping Guidance for Federal
Agencies" (January 1989).
OWPE/FMD, "Delegation of Letter Report Responsibilities and New Guidance" (June
1991).
Types Of The government's costs of the response action can be broadly divided between direct and
Expenditures indirect expenditures. Direct expenditures are those that are attributable solely to the site
in question. These include contractor, EPA, and other Federal and State agency staff time,
travel and equipment directly associated with the site. Indirect costs are costs incurred
which support more than one response action (e.g., office space, electricity, and supplies
for contract and EPA personnel who work on the response actions), and so must be
apportioned among all the response actions that they support. Under general accounting
principles, total cost is the sum of "direct" and "indirect" costs. Both types of costs are
recoverable under CERCLA.
Cost Recovery-! 1
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The types of expenditures for response activities that are recoverable include:
* EPA site-specific payroll costs
* EPA site-specific travel expenditures
* Interagency Agreement expenditures
* Technical Assistance Grants (TAGs)
* Cooperative Agreement expenditures
* Costs incurred under EPA contracts with private contractors
4 Other site-specific expenditures.
EPA Indirect Costs EPA's indirect costs are included in the response action cost summaries as a separate cost
item. Indirect costs .for a site represent the portion of EPA's overhead and general and
administrative costs which were expended in support of the response action at the site in
question. The Agency uses a formula for recovering costs which has been developed by a
major national accounting firm, and an indirect rate is calculated for each Region for each
fiscal year. Indirect rates are calculated by determining the total direct hours charged to
the site during each fiscal year by Regional program staff and multiplying this number by
the indirect rate for the fiscal year. The proposed cost recovery rule would change this
methodology to a full cost accounting approach in which EPA would pursue all of its
direct costs.
References
Office of the Comptroller, OARM, Superfund Indirect Cost Manual for Cost Recovery
Purposes (1986).
Proposed Cost Recovery Rule, 57 Federal Register (152), (August 6,1992).
Evidence The costs of response activities recoverable under section 107 of CERCLA are reflected in
a variety of financial records and documents. There are two general types of information
that will be available to prove the Agency's costs. Activity evidence includes documents
proving that the response activities were actually undertaken (i.e., authorized and com-
pleted). Cost evidence is made up of documents proving that costs were actually incurred
and paid for by the government.
RPMs/OSCs often will provide from their files:
* Authorization for the scope and performance of work by the agency or the contractor
at the site, including documents such as Action Memoranda, Work Plans, Work
Assignments, Technical Directive Documents (TDD)
* Authorization for change in the scope or cost of work done at the site, including
documents such as Work Plan revisions and contract modifications
+ Evidence of contractor performance of work at the site and documentation of
completion of that work, including documents such as the Form 1955s for a removal,
monthly technical and financial status reports for REM contracts, TDD or work
assignment completion forms.
In managing this information from the Agency's site files, RPMs should ensure that
Financial Management offices have provided the following types of documents:
* Timesheets/timecards and payroll expenses
* Travel vouchers and receipts
* Treasury schedules
12-Cost Recovery
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* Contracts/Letters of Agreement
* Purchase orders and receipts
+ Paid processed invoices and vouchers.
Properly documented costs generally lead to admissible evidence. This type of documen-
tation lays the foundation for successful settlement negotiations and litigation. Therefore,
RPMs/OSCs should work in close cooperation with Regional counsel to produce admis-
sible evidence documenting the Agency's costs.
Cost Summaries ^° Prevent me courts from being burdened with unwieldy documentation, Rule 1006 of
the Federal Rules of Evidence allows voluminous documentation to be condensed into
summaries. These summaries must accurately characterize the underlying documents. In
order to introduce a summary in court under Rule 1006, EPA must provide all of the
underlying documents to the other parties at a reasonable time and may further be required
to produce the documents in court. Confidential Business Information (CBI) and Privacy
Act Information must be redacted (edited to delete confidential information).
The RPM and OSC should play an important role in the process of cost recovery by
ensuring that documentation of the activities is provided, and that the cost summaries are
complete and accurate. It is essential that the cost summary provide a complete, accurate
and easily understandable summary of the work performed for each cost claimed. In
addition, when multiple activities (such as an RI/FS, a removal and a remedial action)
have been carried out by the same contractor or State or Federal agency, the RPM/OSC is
the best EPA employee to ensure that the summaries accurately reflect these activities.
The summaries also must include the dates of actual service as provided by the contractor.
The RPM/OSC should ensure that the dates are accurate because they are used to calculate
statute of limitations and authorization issues under contracts. The RPM and OSC should
always check the cost package to ensure that all costs have been included. Much of the
information in the cost package comes from the Integrated Financial Management System
(IFMS), and there are a number of costs which are not reflected in that system. The RPM
should be careful to see that costs of other Agencies, such as ATSDR, DOJ, FEMA, Coast
Guard, and Health and Human Services are included. In addition, the summary must be
checked to see that all costs that have been satisfied or paid are reflected in the cost
summary, including bankruptcy proceeds, settlements with other parties, costs disallowed
after audit resolution or paid by the State or a private party. The RPM also will need to
ensure that calculations of the 10 percent share that the State owes for reimbursable
expenses is included and accurately reflected in the summary.
In cost recovery actions, the summaries must include a description of the response activi-
ties, expenditure types, and actual costs, and must indicate which Agency performed the
activity. Cost summaries, which are primarily the responsibility of the Regional financial
office, should be arranged according to the following format:
* Agency site-specific payroll costs
* Agency site-specific travel expenditures
* Interagency Agreement expenditures
* Cooperative Agreement expenditures
+ Site-specific contracts with contractors
* Non-site-specific contracts with contractors
* TAG expenditures
+ Other Federal costs.
The above information should be summarized in a brief.
Cosl Recovery-]3
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Because the cost summary is developed early in the case development process, the cost
summaries will need to be updated regularly as the various response action phases are
initiated and completed. RPMs/OSCs should obtain updated cost summaries at the most
critical stages of the response and litigation processes, and periodically (e.g., annually)
during periods of substantial expenditure. Frequent updating ensures that the most recent
cost data is available for management review.
The cost summaries should be reviewed for completeness, to ensure that:
* Cost summaries do not demand payment for amounts which have been previously
recovered (e.g., bankruptcy proceeds, settlements)
* Cost summaries include costs incurred by agencies with transfer allocations, whose
costs are not included in the IFMS (DOJ, FEMA, ATSDR, USAGE)
* State matching funds are reflected in the summary so that it is apparent what costs must
be matched and so that we do not demand in excess of the 90% of such costs which the
U.S. is entitled to claim.
Exhibit XII-2 outlines the type of material that should be included in a cost summary
report.
F Documentation Tnis secti°n describes the procedures that are followed in assembling cost and activity
_ . documentation for a cost recovery case. This process became a Regional responsibility in
riOCeuUreS January 1990 and requires joint activity by the Regional Financial Management Officer
and the Regional Cost Recovery Coordinator. In Headquarters, OWPE Cost Recovery
Staff and Financial Management Staff provide support and training in use of the Superfund
Cost Organization and Recovery Enhancement System (SCORES) and training in overall
cost recovery procedures. Headquarters OWPE developed the Cost Recovery Rule.
Headquarters FMD is rewriting guidance on cost documentation procedures. This rewrite
is expected to be completed in FY 1993. Headquarters FMD also provides site-specific
payroll and travel documentation.
The description provided here is a general outline of required inclusions in the cost
documentation package and the procedures for assembling the package.
The Regions assemble information for the following areas of costs:
* Agency site-specific Regional payroll costs
4 Agency site-specific Regional travel expenses
* Other site-specific Regional charges
* Site-specific Cooperative Agreements
+ Non-site-specific Cooperative Agreements
* Site-specific indirect costs
+ Site-specific Field Investigation Team (FIT) costs
* Site-specific Technical Assistance Team (TAT) costs
* Site-specific Technical Enforcement Services (TES) contract costs
* Site-specific Emergency Response Contract (ERC) costs
+ Site-specific Contract Laboratory Program (CLP) costs
«• Site-specific Remedial Contract (REM) costs
* Site-specific Environmental Service Assistance Team (ESAT) costs
* Site-specific Alternative Remedial Contract Strategy (ARCS) costs
* Site-specific Environmental Emergency Response Unit (EERU) costs
* Site-specific National Enforcement Investigations Center (NEIC) costs
4 TAG costs
14-Cost Recovery
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Exhibit XII-2
Cost Summary Format
Employee name
Dates worked on case
Hours worked (by pay period)
Salary amount (by pay period)
Total payroll costs
Payroll Summary
by Employee
Employee names
Hours worked on case
Salary amount
Payroll Summary
by Agency
Employee name
Travel authorization number
Voucher amount
Treasury schedule number
and date
Travel Summary by
Employee
Employee name
Travel authorization number
Voucher amount
Treasury schedule number
and date
Agency Travel
Summary
Agency name
Interagency number
Description of tasks performed
Documentation of costs
Voucher numbers and amounts
Account information
Dates of agency service
Interagency agreement
voucher amount
Interagency
Agreements
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Exhibit X-2(2)
Cost Summary Format
Cooperative
Agreements
State name
Cooperative Agreement
grant number
Summary of work
Documentation of costs
Account information
Voucher information
Treasury schedule
information
Private site-
specific Contracts
Contractor name
Contract number
Project Officer or
Contracting Officer
Dates of work
Description of tasks performed
Total costs
Cost documentation
Voucher numbers and amounts
Treasury Schedules
numbers and dates
Site-specific/
Non site-specific
Contracts
Contractor name
Contract number
Project Officer or
Contracting Officer
Dates of work
Desciption of tasks performed
Total costs
Cost documentation
Voucher numbers and amounts
Treasury schedules
numbers and dates
Narrative Summary/
Statement of Facts
Delineation of costs in a
narrative summary. Format
should be brief, numbered
sentences stating the
amount of incurred costs
by Agency for expenditures
and contracts.
-------
* Interagency Agreement (IAG) costs
* Site-specific Headquarters payroll costs
* Site-specific Headquarters travel expenditures
+ Miscellaneous costs related to the Agency's response activity
* Costs of overflights and aerial photography by the Environmental Photographic and
Investigation Center (EPIC) and analyses of the photographs provided by the Environ-
mental Monitoring and Systems Laboratory (EMSL).
After these costs.are collected and categorized, they must be reconciled using information
in SCORES. This system is usually maintained and operated by the Financial Manage-
ment Officer (FMO) in the region. The SCORES system downloads information on all
site-specific accounts from the Integrated Financial Management System (IFMS) and
produces cost summaries that can be included in the cost package for the case. Once
prepared, the original cost package should be stored in the region. Another copy should be
sent to the Regional Counsel, who will use it in the referral package.
Part of the costs associated with a site also may be incurred by the Department of Justice
(DOJ). Although DOJ has responsibility for documenting its costs, the Cost Recovery
Coordinator, the Financial Management Officer or the RPM may be required to testify in
the cost recovery case. Hence, all parties should be familiar with the process by which
documents are prepared.
G.
Judicial Cost
Recovery
When EPA and the PRPs do not reach a negotiated settlement for reimbursement of EPA's
response costs, EPA usually sues the PRPs to recover those costs. This action, taken under
section 107 of CERCLA, is known as a judicial cost recovery action. A judicial cost
recovery action requires the involvement of the RPM/OSC, ORC staff, and attorneys from
DOJ. The action is initiated when EPA prepares a referral package for DOJ. The referral
package presents the evidence in the case and explains what EPA is seeking to recover.
Referral Package
To assist DOJ in preparing for cost recovery litigation, RPMs should work with the
Regional attorney to prepare a section 107 referral package. At a minimum, the package
should include the following information:
* Description of the response actions and their status
* Administrative Record Index and Action Memorandum/Record of Decision
* PRP liability analysis
* Anticipated defenses
* Activity and cost documentation
* Natural resource damage claims (summarizes communications with trustee)
* Enforcement history
* Relief sought
* Litigation/Settlement Strategy
Generally, the following remain in Regional files:
* Administrative Record
* PRP search backup documents (e.g., section 104(e) responses)
* Cost Summary Documentation
* Work Performed Documentation
The cost documentation package must be complete before the case is referred to DOJ,
except where there are statute of limitations problems. All documents in the package
Cost Recovery-15
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should be indexed. Proper indexing enables the case management team to access pertinent
evidence from voluminous cost recovery case files.
Litigation RPMs and OSCs, with ORC and Civil Investigator assistance, play an important role in
Support supporting cost recovery litigation, including:
* Ensuring that the PRP search provides sound evidence of liability and, for generators,
waste-in information
+ Ensuring that the Administrative Record regarding the selection of remedy is compiled
* Ensuring that all activities and costs are documented, as needed
* Providing the technical lead for the case and acting as witnesses as necessary to prove
the technical performance of the work at the site for which costs were incurred
* Assisting in case preparation and at trial in establishing discrete activities and
associated costs that were related to each phase of the work at the site (e.g., RI/FS,
various removals, work on separate operable units)
+ Identifying potential fact witnesses who have personal knowledge of potentially
relevant information, such as the PRP's liability, by providing the following informa-
tion: present place of employment; home and business phone numbers; substance of
testimony (brief statement); and whether the witness' statement is on file.
* Identifying and interviewing potential expert witnesses, if necessary (e.g.,
hydrogeologists and soil scientists)
* Identifying expert witnesses to participate in negotiations, if necessary
* Identifying potential adverse witnesses (either fact or expert) and indicating the
substance of expected testimony, if known.
In addition, RPMs and OSCs may be asked to assist Regional attorneys in preparing
affidavits to substantiate the Agency's response costs, or in preparing pre-trial motions,
such as motions for summary judgment and motions to dismiss.
Litigation
Management
Plan
A litigation management plan should be developed and approved by team members. A list
of the contents of the litigation management plan is included as an appendix to this
chapter.
As a practical matter, most cases do not go to trial. There is strong legal precedent to
support the Agency's right to make claims for reimbursement of all incurred costs plus
interest. Consequently, most cost recovery cases will be settled out of court. The primary
function of both the RPM and OSC in litigation support is to work closely with the attor-
neys from ORC and DOJ.
References
OSWER Directive 9891.1-la, "Procedures for Transmittal of CERCLA and RCRA Civil
Judicial Enforcement Case Packages to Headquarters" (June 12,1989).
OSWER Directive 9835.11-1, "Model Litigation Report for CERCLA Sections 106 and
107 and RCRA Section 7003" (June 21,1989).
H.
De Minimis
Settlements
In addition to settlements during RD/RA negotiations, de minimis settlements are tools that
may be used for eliminating the smaller contributors from the cost recovery process.
Section 122(g) of CERCLA provides for settlement "...whenever practicable and in the
public interest.. .if such a settlement.. .involves only a minor portion of the response
costs." There are two situations in which the Agency may agree to a de minimis settle-
ment:
16-Cost Recovery
-------
* The amount and toxicity of the hazardous substance contributed by the PRP are
minimal compared to other hazardous substances at the facility
* The PRP is an owner who did not contribute to the release or threat of release through
any action or omission, did not conduct or permit the management of hazardous
substances on the property, or purchase the property with knowledge of its use for
generation, transportation, treatment, storage, or disposal.
Necessary The PRP search process is critical to determining whether a PRP is a de minimis contribu-
Information tor- Tne searcn WM provide the RPM with information regarding the identity, waste
contributions, and financial viability of the PRPs. The Regional management will deter-
mine whether a PRP is a de minimis contributor through an analysis that includes each
PRP's waste contribution, whether the settlement is "practicable and in the public inter-
est," and whether all past costs are known. If the Agency expects to incur future costs, this
will affect the scope of the settlement and covenant not to sue.
De minimis settlements may be entered as either:
* Administrative Orders on Consent
* Judicial Consent Decrees.
The Regions may issue Administrative Orders on Consent when the total response costs at
the site are under $500,000. However, under section 122(g)(4) of CERCLA and the EPA
delegations, when the total costs exceed $500,000 (excluding interest), the Regional
Administrator must obtain the approval of the Assistant Attorney General (AAG) for the
Environment and Natural Resources Division of DOJ, and consult with OSWER and OE.
All de minimis settlements must comply with the public comment procedures stipulated in
section 122(i) of CERCLA.
Release From
Liability and Reopeners
The Agency may grant de minimis settlors a covenant not to sue. EPA's covenant not to
sue is given in exchange for the PRP's agreement to pay for part of the response costs plus
a premium. This agreement means that EPA will not pursue the PRPs for future liability
for costs incurred by the Agency. Such agreements normally involve liability under
section 106/107 of CERCLA. The scope of the covenant will vary depending on site-
specific factors. The Agency may agree to such a release only if the terms of the covenant
include reopeners. Reopeners protect the Agency against cost overruns and the risk of
paying for any further response action at the site. In appropriate cases, this protection may
be provided by premium payments.
References
OSWER Directive 9834.9-lc, "Methodology for Early De Minimis Waste Contributor
Settlements Under CERCLA 122(g)(l)(A)" (June 1992).
OSWER Directive 9834.7, "Interim Guidance on Settlements with De Minimis Waste
Contributors under Section 122(g) of SARA" (June 1987).
OSWER Directive 9835.9, "Guidance on Landowner Liability under Section 107(a)(l) of
CERCLA, De Minimis Settlements under Section 122(g)(l), etc." (June 6,1989).
OSWER Directive 9834.7-lb, "Methodologies for Implementation of CERCLA section
122(g)(l)(A) De Minimis Waste Contributor Settlements" (December 20,1989).
Administrative
Section 122(h)(l) of CERCLA expressly authorizes the Agency to settle its cost recovery
o . claims under section 107 if the case has not been referred to DOJ. However, when the
Settlements totaj resp0nse costs at a facility exceed $500,000 (excluding interest), the Regional
Cost Recovery-] 7
-------
Administrator must obtain the written approval of DOJ. He/She must also consult with
AA, OSWER and AA, OE.
References
OSWER Directive 9012.10-A, "Revision of CERCLA Civil Judicial Settlement Authori-
ties Under Delegations 14-13-B and 14-14-E" (June 17, 1988).
OE, "Draft Procedures for Administrative Settlements Under Sections 122(h)(l) and (4) of
CERCLA" (October 1987).
J.
Enforcing
Settlements
If a settling PRP fails to comply with the terms of the settlement, the matter should be
referred to DOJ for civil action. Case referrals should occur within six months of the
default date. In addition to inherent governmental authority, section 122(h)(3) of
CERCLA authorizes DOJ to bring a civil action to enforce the terms of the agreement.
These terms are not subject to judicial review. DOJ may petition the court to impose the
civil penalties authorized by section 109 of CERCLA.
K.
Arbitration Arbitration is a form of alternative dispute resolution (ADR) which provides a forum for
resolution of cost recovery claims without traditional litigation. The Administrative
Dispute Resolution Act (ADR Act) and section 122(h) of CERCLA specifically authorize
the use of arbitration to resolve cost recovery claims.
In the cost recovery context, arbitration is a hearing conducted by a neutral third party,
usually with substantive expertise, who hears facts and arguments presented by each party
and renders an opinion. The scope of the neutral's decision and hearing procedures is at
the sole discretion of the parties to the arbitration. Arbitrations are more streamlined in
terms of procedures and evidence requirements than court litigation.
Entry into an arbitration for resolution of a cost recovery claim is voluntary and requires
the consent of all involved parties. Regulations promulgated pursuant to section 122(h), 40
CFR Part 304, 54 FR 23174, set procedures for arbitration in cases where facility costs do
not exceed $500,000 (excluding interest). In section 122(h) arbitrations, the decision of
the neutral, which is filed in the Federal Register for public comment, is binding on the
parties except in cases of arbitrator misconduct.
In other cases, hearing procedures and the binding nature of the neutral's decision is at the
discretion of the parties. Due to constitutional restrictions, arbitrator decisions that bind
the Agency without an opportunity for withdrawal are inappropriate. Chapter 5, Title 5,
sections 585-591 (enacted by the ADR Act) establishes the permissible scope of arbitration
decisions in cost recovery cases.
Arbitration offers the Agency an expedited method of resolving cost recovery claims
without the expenditure of enforcement resources required for traditional litigation and
lengthy enforcement negotiations. Exhibit XII-3 shows a flowchart of the procedures.
L
Mixed Funding
Section 122(b) of CERCLA authorizes the Agency to enter into mixed funding agree-
ments. Under the terms of a mixed funding agreement, the Agency shares the response
costs with settling PRPs. RPMs should note that when the Agency enters into a mixed
funding agreement involving either a preauthorization or a cash-out with certain PRPs at a
site, EPA must make a reasonable effort to recover the amount of such reimbursement
from non-settling PRPs under a separate cost recovery action. A more complete discussion
of mixed funding can be found in Chapter VIII, RD/RA Negotiations.
18-Cosi Recovery
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Exhibit XII-3
Arbitration Procedures for CERCLA Cost Recovery Cases Pursuant to §122(h)(2)
Referral Phase
EPAandPRPs
Regional Administrator and one or more PRPs
voluntarily submit a request for arbitration of one
or more issues to the American Association of
Arbitrators (AAA).
10 days
Arbitrator
The AAA simultaneously submits the names of
ten persons from the Panel of Environmental
Arbitrators to all parties for their consideration.
1
10 days
EPAandPRPs
Parties concur on an arbitrator. If the parties
cannot concur, the AAA will appoint an
arbitrator within 30 days of the date the joint
request for arbitration is filed.
I
7 days
AM
AAA notifies parties of Arbitrator's identity
and date of appointment.
5 days
Arbitrator
Appointed Arbitrator files signed acceptance
of case and a statement disclosing any
circumstances that could bias hearing of the
case.
1
Hearing Phase
30 days
EPA
EPA submits its written statement for cost recovery and
supporting documents to the Arbitrator and PRPs.
W 30 days
PRP
PRPs submit their answers to EPA's statement and
their documentary evidence.
±
10 days
EPA
EPA may file response to PRPs answer with the
Arbitrator and all parties.
i
10 days
PRP
PRPs may file reply with Arbitrator and all parties.
within 120 days of
appointment of Arbitrator
EPAandPRPs
PRE-HEARING CONFERENCE: All parties exchange
witness lists, remaining exhibits, and documentation.
Parties prepare a statement of disputed issues and a
stipulation of undisputed facts.
45 days
Arbitrator must notify parties
at least 20 days in advance
EPAandPRPs
ARBITRATION HEARING: Must be completed within
14 days, unless extended for good cause.
Decision Phase
45 days
Arbitrator
ARBITRATION DECISION: statement
resolving the issues presented. The
decision is binding.
Publish in Federal Register
PUBLIC COMMENT PERIOD:
Public must have opportunity to
comment for at least 30 days.
10 days
PRP
PRP COMMENT PERIOD: PRPs may
respond to public comments.
30 days
EPA
Responsiveness Summary: EPA must
issue responses to public comments and
summarize issues.
-------
M.
Bankruptcy
Actions
Some PRPs may file for bankruptcy before reimbursing the government for its response
costs. Although the Regional attorney will handle most issues related to the PRP's petition
for bankruptcy, the RPM should have a working understanding of the process. The
following discussion should help RPMs become familiar with pertinent concepts of
bankruptcy law.
Statutory
Background
A PRP may file a petition for bankruptcy under either Chapter 7 (liquidation) or Chapters
11 and 13 (reorganization) of the Bankruptcy Code. Bankruptcy proceedings under
Chapter 7 involve the collection and distribution of all the debtor's non-exempt property.
By contrast, Chapters 11 and 13 allow the debtor to reorganize and rehabilitate rather than
liquidate. Under Chapters 11 and 13, the creditors look to the future earnings of the debtor
to satisfy claims.
There are two bankruptcy issues that the RPM should understand: proof of claim and
priorities in bankruptcy.
Proof of Claim
Under the Bankruptcy Code, a debtor is discharged from his/her debts. This statutory
provision releases a debtor from debts incurred before the debtor filed his/her petition for
bankruptcy (previous debts). Creditors may object to the discharge of their claim against
the debtor. The creditors must establish proof that they had a valid claim against the
debtor's estate that has not been discharged as a previous debt. Creditors establish this
claim by filing a proof of claim in the bankruptcy court. The deadlines for filing a proof of
claim are as follows:
* Under Chapter 7 of the Bankruptcy Code: 90 days from the first meeting of creditors
«• Under Chapters ,11 and 13 of the Bankruptcy Code: the bar notice fixes the deadline.
The Agency has established a systematic procedure for receiving and distributing bank-
ruptcy information. This procedure ensures that the Agency files its proof of claim within
the statutorily defined deadlines, if appropriate. EPA has designated OE's Special Litiga-
tion Branch (SLB) as a central contact in Headquarters to receive all preliminary bank-
ruptcy information. The SLB, in cooperation with the Regional bankruptcy contacts, will
determine whether a particular multi-region bankruptcy matter should be handled as
Headquarters-lead or Regional-lead.
The Bankruptcy Code requires a person to provide notice to all creditors. ORC takes the
lead role in responding to the PRP's notice. Regional attorneys engage in the following
activities:
* Notifying the SLB at 202-260-3056 and describing the status of the bankruptcy
petition
identifying whether the bankruptcy petition was filed under Chapter 7,11, or 13
of the Bankruptcy Code
determining whether a reorganization plan has been filed by the PRP
identifying the bar date for the proof of claim
* Sending all initial notices regarding any bankruptcy proceedings to the OE attorney
at Headquarters
* Providing assistance to ORC and DOJ in the Agency's efforts to establish its proof of
claim
* Providing assistance in preparing referrals to DOJ for filing proofs of claim and other
necessary documents.
If the PRP has actually filed a petition for bankruptcy, DOJ and ORC will have the
responsibility of obtaining the necessary bankruptcy documents to establish the Agency's
Cost Recovery-19
-------
proof of claim. In most cases, the RPM will have a limited role in the bankruptcy
proceedings.
Environmental As a practical rule, a bankrupt party's estate does not have sufficient assets to satisfy all of
Claims as Priorities me cre£Utors> claims. However, if the Agency's claim is treated as a priority, the claim
must be fully satisfied before the other creditors receive any money.
EPA's cost recovery actions can be treated as a priority if the Agency can establish that the
costs were administrative costs, or that a Federal lien has been filed against the PRP's
property. For example, administrative costs are incurred when EPA incurs costs for
responding to the release on the debtor's property after the bankruptcy petition has been
filed. A Federal lien for cleanup costs is created under section 107(1) of CERCLA. The
lien continues to be enforced against the property until the liability is either fully satisfied,
or the claim becomes unenforceable by operation of the statute of limitations.
In July 1992, a federal bankruptcy court awarded EPA $13 million from the liquidation of
assets of the current owner of the Bunker Hill Superfund site. In the case, EPA asserted an
"administrative expense priority claim" for $13.2 million to comply with an administrative
order issued to Bunker in 1991.
References
OE, "Guidance on Federal Superfund Liens" (September 1987).
OE, "Guidance Regarding CERCLA Enforcement Against Bankrupt Parties" (May 1987).
OE, "Revised Hazardous Waste Bankruptcy Guidance" (May 1986).
"Coordination Guidance of Agency Involvement in Bankruptcy Proceedings in RCRA and
CERCLA Enforcement" (May 1988).
20-Cost Recovery
-------
Section III. Planning and Reporting Requirements
A.
^ost recovery planning should be consistent with the priorities identified in the cost
recovery strategy and should consider sites with pending expiration of the statute of
limitations. In selecting sites for cost recovery action, RPMs should consult the Cost
Recovery Category Report (CRCR/ENFR-46) on the CERCLIS reports menu. This report
identifies sites which are eligible for cost recovery action (e.g., remedial starts, completed
removals over S200K) and sorts the sites by statute of limitations dates. It also shows any
planned, on-going or completed cost recovery action at the site.
When sites have been selected, the sites should be targeted and tracked through the SCAP/
STARS process. It is important to note that STARS credit is not given for sites with
expenditures under $200K. Information on the expenditures at the site can be taken from
the Cost Documentation system maintained by the Financial Management Officer in your
region. The system maintained by the FMO (and described in the Section on Cost Docu-
mentation) will provide detailed documentation of both direct and indirect costs.
B.
BuddGtind Funding for cost recovery activity is part of the Enforcement Case Budget. Data on the
case budget can be found in CERCLIS/WasteLAN.
c.
Reporting
Requirements
Cost planning, reporting and tracking relies on the Comprehensive Environmental Re-
sponse, Compensation and Liability Information System/Waste Local Area Network
(CERCLIS/WasteLAN), the national data base. The data base incorporates information on
response and enforcement actions at sites and is the source for Cost Recovery Category
Reports (CRCR), as well as Superfund Comprehensive Accomplishments Plan (SCAP),
and Strategic Targeted Activities for Results System (STARS) reports. Current and
accurate data are essential for the cost recovery process to be successful.
All enforcement activities associated with cost recovery (e.g., demand letters, 107 refer-
rals, settlements) and the amounts sought, achieved or written off in the cost recovery
process must be reported in CERCLIS/WasteLAN. RPMs and OSCs must work closely
with IMCs, Cost Recovery Coordinators and Headquarters cost recovery staff to ensure
that data are accurately entered. Your IMC can advise you as to the existing procedure(s)
in your Region.
RPMs/OSCs should ensure that target dates for demand letters, negotiations, referrals,
decisions not to pursue cost recovery, and other enforcement activities are recorded in
CERCLIS/WasteLAN. Pre-SARA settlements should be reviewed to determine if
CERCLIS/WasteLAN should be updated with information pertaining to the reimburse-
ment of oversight costs. If the Regions enter the data in a timely manner, CERCLIS/
WasteLAN is capable of producing several classes of enforcement activity reports, as
shown in Exhibit X3I-4.
Cost recovery actions start with the issuance of a demand letter. This is a section 122(e)
letter issued pursuant to section 107 from EPA to the PRP requesting that the PRP reim-
burse the Fund for a specific amount associated with one or more response activities.
Demand letters are typically sent for each separate response action. Credit for this activity
is given on the date the demand letter is signed by the appropriate EPA official and
recorded in WasteLAN. This is a SCAP reporting measure and is recorded at the mile-
stone level under a negotiation, settlement or litigation.
Cost recovery actions/decisions are separated into two categories: less than $200,000 and
greater than $200,000. Cost recovery actions/decisions less than $200,000 is a STARS
measure. Cost recovery actions/decisions greater than $200,000 is a STARS target.
Cost Recovery—21
-------
Cost recovery actions/decisions are defined as the decision to take cost recovery action by
use of any administrative cost recovery settlement, Section 106/107 or 107 judicial referral
for cost recovery, initiation of Alternative Dispute Resolution (ADR) (mediation, arbitra-
tion, mini-trial), preparation of a decision document not to pursue cost recovery, settlement
for past costs under a CD (with no prior referral), bankruptcy filing, cash out settlement for
cost recovery or initiation of debt collection procedures. A matrix of SC AP/ST ARS
targets and measures relevant to cost recovery actions/decisions is presented as Exhibit
XII-5.
Exhibit XII-5
SCAP/STARS Targets for Cost Recovery
Activity
Actions/Decisions
(>$200,000)(S/E-2a)
STARS
Target
X
SCAP
Target
X
Quarterly
Target
X
Annual
Target
X
SCAP/STARS Measures for Cost Recovery
Activity
Demand Letters Issued
Actions/Decisions
(<$200,000)(S/E-2b)
Section 106, 106/107, 107
Case Resolution
STARS
Reporting
X
SCAP
Plan/Report
X
X
X
Quarterly
X
X
X
Annual
X
X
X
Definitions for:
* Section 107 or 106/107 referrals - Credit is given on the date of the Regional
Administrator's transmittal letter to HQ or DOJ as recorded in WasteLAN.
+ Settlement Under CD (With no prior referral) - Credit is given on the date of
the Regional Administrator's transmittal letter to HQ or DOJ as recorded in
WasteLAN.
* Cash out settlements - Credit is given on the date of the Regional Administrator's
transmittal letter to HQ or DOJ or when the Regional Administrator signs the AOC
for the cash out. This date must be recorded in WasteLAN.
• Decision Documents Prepared Not to Pursue Cost Recovery Claims - Credit is
given when the document is issued by the Regional office and recorded in
WasteLAN.
* Administrative Settlement - Credit is given on the date that the Regional office or
DOJ receives payment from the PRPs in direct response to a demand letter for
voluntary cost recovery or the date the Regional Administrator signs the AOC for
cost recovery. The date must be reported in WasteLAN.
22-Cost Recovery
-------
Exhibit XII-4
Enforcement Activity Report Structure
Total
Obligations
- Planned
- Actual
All Sites Or Incidents
With Fund-financed
Response
Total
Documented
Costs
Cost
Documentation
Preparations
Demand
Letters
Total
Costs
Sought
(Negotiations)
Total
Costs
Sought
(Litigation)
Cost
Recovery
Achieved
Total
Dollars
Paid
To The Fund
Cost
Recovery
Negotiations
Administrative CR
Section 107 Litigation
Combined Litigation Voluntary Cost Recovery
Section
107
Litigation
1
Combined
Section 106/107
Litigation
Settlement
Settlement/
Judgment
Settlement/
Judgment
Settlement
Funds
Collected
Funds
Collected
Funds
Collected
Funds
Collected
-------
• Initiation of ADR - Credit is given on the date that the Region refers the case to
the Office of Enforcement (OE) for selection of a mediator or arbitrator as reported
in WasteLAN.
• Bankruptcy Filing - Credit is given based on the date that the bankruptcy strategy
package is prepared or on the date that the first creditor committee meeting
convenes as reported in WasteLAN. New bankruptcy filing milestones have been
added to WasteLAN: C2801=CP (Creditors Committee Meeting) and BS (Bank-
ruptcy Strategy Package).
• Initiation of Debt Collection Procedures - Credit is given on the date the demand
letter indicating use of debt collection procedures is signed by the EPA official, as
reported in WasteLAN. New debt collection milestones have been added to
WasteLAN: C2801=CS (Collection Services); AF (Administrative Offset); and TF
(Tax Refund Offset). These milestones are valid only for activity AV (Adminis-
trative/Voluntary Cost Recovery).
• Section 106,106/107,107 Case Resolution - Case resolution is the conclusion of
a section 106,106/107, or 107 judicial action by a full settlement, a final judgment,
a case dismissal, or a case withdrawal. Credit for case resolution is given when
- A CD is entered in court fully addressing the complaint with all parties
- The case is withdrawn
- The case is dismissed, or
- A trial is concluded and a judgment entered fully addressing the complaint.
The case resolution date (activity actual completion date) is defined as follows:
- Date the CD is entered
- Date the case is withdrawn
- Date the case is dismissed, or
- Date the judgment is entered.
This is a SCAP reporting measure.
All dates must be entered into WasteLAN. Credit for referrals is based on the referral
package, not on the number of sites. Credit will be withdrawn if a case is returned to the
Region by HQ or DOJ for additional work, but will be reinstated upon re-referral and will
be based on the quarter of re-referral. New WasteLAN activity codes were developed for
reporting debt collection procedures and bankruptcies.
For specific coding requirements into WasteLAN, see the Enforcement Data Quality
Manual Chapter I: Issue Cost Recovery Decision Document (DD), Prepare Cost Docu-
mentation Package (PC), Cost Recovery Negotiations (NE), Section 107 Litigation (SV),
Section 106/107 Litigation (CL), Administrative Order On Consent (AC), Administrative/
Voluntary Cost Recovery (AV), Consent Decree (CD), Claim In Bankruptcy Proceeding
(CB), Judgment (JG), Debt Collection Act (under development), Alternative Dispute
Resolution (ADR).
Cost Recovery-23
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Section V. References
Regulation 54 FR 23174 "Arbitration Procedures for Small Superfund Cost Recovery Claims" (May
30,1989).
57 FR 152 "Proposed Cost Recovery Rule" (August 6,1992).
Policies OSWER Directive 9835.0, "Interim CERCLA Settlement Policy" (December 1984).
OSWER Directive 9832.5, "Policy on Recovering Indirect Costs in CERCLA Section 107
Cost Recovery Actions" (June 1986).
Comptroller Policy Announcement 87-17, "Interest Rates for Debts Recoverable Under the
Superfund Amendments and Reauthorization Act of 1986" (September 1987).
Guidance OSWER Directive 9891.1-la, "Procedures for Transmittal of CERCLA and RCRA Civil
Judicial Enforcement Case Packages to Headquarters (Unterberger/Diamond) (June 1989).
OSWER Directive 9835.11-1, "Model Litigation Report for CERCLA Sections 106 and
107 and RCRA Section 7003" (June 1989).
OSWER Directive 9834.7-lb, "Methodologies for Implementation of CERCLA Section
122(g)(l)(A) De-Minimis Waste Contributor Settlements" (December 1989).
OSWER Directive 9834.7-Ic, "Methodology for Early De Minimis Waste Contributor
Settlements Under CERCLA 122(g)(l)(A)" (June 1992).
OSWER Directive 9832.9, "Cost Recovery Actions/Statute of Limitations" (June 1987).
OSWER Directive 9832.1, "Cost Recovery Actions Under the Comprehensive Environ-
mental Response, Compensation, and Liability Act of 1980 (CERCLA)" (August 1983).
[This guidance is also referred to as "The 1983 Cost Recovery Guidance"].
OSWER Directive 9832.0, "Cost Recovery Referrals" (August 1983).
OSWER Directive 9832.13, "Guidance on Cost Recovery Strategy" (July 1988).
OSWER Directive 9832.11, "Guidance on Drafting Decisions Not to Take Cost Recovery
Actions" (June 1988).
OSWER Directive 9832.12, "Guidance on Federal Superfund Liens" (September 1987).
OSWER Directive 9833.3A-l, "Final Guidance on Administrative Records for Selection
of CERCLA Response Actions" (December 3,1990).
OSWER Directive 9834.1, "Interim Guidance on Notice Letters, Negotiations, and
Information Exchange" (October 1987).
OSWER Directive 9834.7, "Interim Guidance on Settlements with De Minimis Waste
Contributors under Section 122(g) of SARA" (June 1987).
OSWER Directive 9012.10-A, "Revision of CERCLA Civil Judicial Settlement Authori-
ties Under Delegations 14-13-B and 14-14-E" (June 1988).
OSWER Directive 9832.6, "Small Cost Recovery Referrals" (July 1985).
FMD, "Historic Site-Specific Cost Reports in Superfund Contracts Active Prior to October
1,1985" (June 26,1989).
FMD, "State Superfund Financial Management and Record-Keeping Document" (August
1987).
OARM, "Superfund Financial Management and Recordkeeping: Guidance for Federal
Agencies" (January 1989).
24-Cosl Recovery
-------
OWPE/FMD, "Delegation of Letter Report Responsibilities and New Guidance" (June
1991).
OWPE, "Draft Guidance on Reimbursement of Oversight Costs" (June 1988).
OWPE, "Draft Guidance on Written Demand for Recovery of Costs Incurred Under
CERCLA" (August 28, 1990).
OSWER Directive 9834 .4-A, "Guidance on Use and Enforcement of Information Requests
and Administrative Subpoenas" (August 1988).
OSWER Directive 9835.9 "Guidance on Landowner Liability under Section 107(a)(l) of
CERCLA, DeMinimis Settlements under Section 122(g)(l)(B) of CERCLA and Settle-
ments with Perspective Purchasers of Contaminated Property" (June 6, 1989).
OE, "Draft Guidance, Procedures for Administrative Settlements under Sections 122(h)(l)
and (4) of CERCLA" (October 1987).
OE, "Draft Procedural Guidance on Treatment of Insurers Under CERCLA" (November
1985).
Office of the Administrator, "Guidance on the Use of Alternative Dispute Resolution in
EPA Enforcement Cases" (August 1987).
OE, "Guidance Regarding CERCLA Enforcement Against Bankrupt Parties" (May 1987).
"Revised Hazardous Waste Bankruptcy Guidance" (May 1986).
OSWER Directive 9834.3-2a "PRP Search Supplemental Guidance for Sites in the
Superfund Remedial Program" (June 16, 1989).
OSWER Directive 9834.6, Potentially Responsible Party Search Manual (August 1 987).
"OSWER Directive 9832.0-1 A, Procedures for Documenting Costs in CERCLA Section
107 Actions (January 1985) [also referred to as "The Cost Documentation Procedures
Manual"].
OARM, Superfund Indirect Cost Manual (March 1986).
Traininfl ^e ^ost Recoverv Branch of the CERCLA Enforcement Division has developed a one-
^ day course on cost documentation. For information, call 703-308-8920.
Contacts CERCLA Enforcement Division, Cost Recovery Branch: 703-603-8920.
OE, Waste Division, Attorney Advisors: 202-260-8865.
Cost Recovery-25
-------
Appendix
Site Litigation Management Plan
This plan should be prepared in close coordination with the Department of Justice and
should incorporate other guidance, as appropriate, including the Model Litigation
Report, Negotiations Checklist and Pre-Referral Negotiations Procedures.)
1. Litigation Schedule and Staffing Requirements
a. Provide a schedule for completing litigation activities (including activities, staff
and contractor support)
b. Summarize the specific team responsibilities for managing and performing
litigation, along with dates for starts and completions
c. Assess enforcement progress to date in the litigation plan.
2. Objectives of Litigation
a. Discuss litigation objectives set by the site team and the reasons for their selection
b. Identify the potential alternatives (e.g., return to negotiation posture or different
legal options to achieve litigation objectives).
3. Litigation Strategy
a. Identify the initial and bottom-line litigation points in the plan and reasons for the
postions.
Cost Recovery-Al
-------
XIII. COMMUNITY
RELATIONS
-------
Chapter XIII
Community Relations
Section I. Description of Activity 1
Introduction 1
Techniques for Effective Community Relations 1
Section II. Procedures and Interactions 3
A. Community Relations Plan (CRP) 3
Coordination with Enforcement Staff 3
Consistency with Enforcement Actions 3
B. Potentially Responsible Party (PRP) Involvement 4
Notice to PRPs 4
Negotiations 4
C. Community Relations During Removal Actions 4
D. Community Relations During Remedial Actions 5
Community Relations Following an RI/FS Order 5
Proposed Plan and Public Comment 5
Public Notice and Comment on Consent Decrees for RD/RA 6
Community Relations During PRP Remediation 7
E. Other Enforcement Actions 7
Injunctive Litigation 7
Cost Recovery 7
F. Administrative Record 7
Purpose of the Administrative Record 8
Section III. Planning and Reporting Requirements 9
A. SCAP 9
Range of Activities 9
Range of Costs 9
B. Case Budget 9
Section IV. Potential Problems/Resolutions 10
A. Volatile Public Meeting 10
B. Lack of Community Interest 10
C. PRP Involvement 10
D. PRP as Principal Employer 10
Community Relalions-i
-------
Section V. References 11
Guidance 11
Manuals 11
Training 11
Contacts 11
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Chapter XIII
Community Relations
Section I. Description of Activity
Introduction
A site-specific and well-planned community relations effort is an integral part of every
Superfund response. The Superfund community relations program promotes two-way
communication between members of the public, including PRPs, and the lead government
agency responsible for the site. Activities are conducted throughout the planning and
implementation of Superfund responses to encourage communication between government
staff and the public. Exhibit XIII-1 illustrates the relationship of community relations
activities to the Superfund technical process.
Through experience with the Superfund program, EPA has found that its decision-making
ability is enhanced by actively soliciting comments and information from the public. This
chapter discusses how community relations activities are affected when enforcement
actions are initiated or on-going.
Techniques for
Effective Community
Relations
There are many techniques that can be used in a site-specific community relations pro-
gram. EPA has found that there can be no set formulas in deciding which techniques to
use. Each community is different. The issues of importance to the public, the level of
concern, the history of public involvement, and the socio-economic background of the
community vary from site to site. Community relations efforts must, therefore, be tailored
to the distinctive needs of each community. They must also be tied to the technical
response schedule and enforcement considerations for the site. Some general recommen-
dations, however, for dealing with the community include:
* Involve the community early in the process
* Provide more information rather than less
+ Encourage regular meetings in areas of intense community awareness.
Specific techniques for ensuring open and candid communication include small group or
one-on-one meetings, and frequent telephone calls. Fact sheets, public meetings, newslet-
ters and press releases also are appropriate to ensure citizen understanding of issues and
activities associated with a site. When large public meetings are needed, they must be
carefully planned to enhance productive communication. The timing, benefits and limita-
tions of each technique are described in depth in EPA/540/R/92-009, Community Relations
in Superfund: A Handbook (January 1992), Appendix A. (Hereafter referred to as the
Community Relations Handbook).
The formal plan for EPA community relations activities at a Superfund site as required by
the NCP is the Community Relations Plan (CRP). This plan provides an overview of the
community relations program planned for a site; the historical, geographical, and technical
details explaining why the site is on the NPL; a description of the community and its
involvement with the site; details on community relations approaches to be taken; and the
timing of suggested activities. There are typically two appendices to the CRP: a mailing
list of interested parties and suggested locations for meetings and information repositories
and administrative record files.
For enforcement sites, EPA Regional offices are responsible for developing community
relations plans and associated activities, hi cases in which EPA has negotiated an order
with responsible parties, EPA is designated as the lead agency for community relations. If
the State negotiates the order, generally the State will have the lead for community
Community Relalions-1
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relations, with EPA oversight. However, the conduct of community relations at State-lead
sites is negotiable with EPA. The following sections of this chapter highlight these
responsibilities by describing:
* Procedures and interactions of key community relations players during enforcement
actions
* Planning and reporting requirements for community relations during enforcement
actions
* Potential problems that may arise during community relations activities, and potential
resolutions.
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Section II. Procedures and Interactions
A. Community
Relations Plan (CRP)
Information gathered during community interviews provides the basis for the development
of site-specific Community Relations Plans (CRPs). If interviewers actively seek informa-
tion about public concerns and informational needs, the communications activities will be
better targeted to the community. The process for conducting these interviews involves
several steps, as detailed in Chapter 3 of the Community Relations Handbook.
In addition, discussions about the site should be held with Regional technical and legal
staff in advance of the interviews, so that the community relations staff can be apprised of
any situations that might impact these interviews. Regardless of whether viable PRPs
have been identified, the RPM should participate in the community discussions.
To incorporate the full range of views, lead agency staff may consider interviewing PRPs
in the community. The EPA enforcement team for the site will determine whom to
interview. This team is comprised of a Community Relations Coordinator (CRC), the On-
Scene Coordinator (OSC), Regional Counsel, and the RPM, as well as equivalents at the
State level when the State has the lead.
Coordination with
Enforcement Staff
Coordination activities among the CRC, OSC, Regional Counsel, and RPM depend on the
site-specific situation. Adequate planning is crucial to prevent the release of information
that might be detrimental to the settlement and/or litigation process. Community relations
plans prepared for sites with viable PRPs should receive input from all members of the
enforcement team who are directly affected by scheduled activities. For example, attor-
neys should review the accuracy of any legal information, the RPM should review the
accuracy of any technical information, and the CRC should approve the appropriateness of
the community relations techniques suggested in the CRP.
The CRC is ultimately responsible for ensuring that the community relations requirements
of CERCLA are implemented. Therefore, final approval of the CRP should be by the
CRC, with concurrence on specific sections by members of the team.
Consistency with
Enforcement Actions
Community relations activities outlined in a CRP for an enforcement site should be
consistent with the settlement process and the likely schedule of enforcement actions.
Community Relations staff may wish to document EPA's approach to coordinating and
sharing information with PRPs within the CRP. However, any special conditions or
Agency interaction with the PRPs should be spelled out in the Administrative Order or
Consent Decree, not in the CRP.
The public must be told early on if PRPs are willing to participate in implementing the
CRP. The Community Relations staff can do this by preparing a fact sheet or disclosing
information at a public meeting. Discussions about the PRPs prior to the PRPs and EPA
signing a consent agreement, however, may cause delays in the negotiations. It is prefer-
able to delay discussing details of PRP involvement with the site until some agreement is
signed or action taken. Premature disclosures may cause tension and mistrust between
Agency staff and the PRP.
Assuming a site has not been referred for litigation, the CRP needs to inform the public of
the possibility of litigation. Litigation generally does not occur until after the remedy is
selected. EPA staff, therefore, may need to explain at public meetings or in fact sheets that
pending or planned litigation may impose constraints on the release of certain information
or conduct of community relations activities. Community Relations staff should describe
the litigation process, and inform the community that only information that can be ascer-
tained from court files will be available. Agency statements about the case must be
Community Relations-3
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B. Potentially
Responsible Party
(PRP) Involvement
cleared with the Department of Justice before issuance. The Regional Counsel team
members will be the focal point for that clearance, as well as for consulting with DOJ on
statements concerning site status, such as investigations, risk assessments and response
work. The plan will be amended to reflect any potential effects this could have on commu-
nity relations activities.
EPA is the lead agency for developing and carrying out community relations activities at
enforcement-lead sites. A PRP may assist in community relations activities at the discre-
tion of the Regional office. The Regional office, however, will oversee any PRP involve-
ment. Specifically, PRPs may be included in community relations activities at sites where
they are conducting either the RI/FS, or the RD/RA, or both. If a PRP will be involved in
community relations activities, the CRP should reflect that involvement. In these cases,
the PRP(s) may wish to participate in public meetings, or in the preparation of fact sheets.
EPA, however, will not "negotiate" with PRPs on the contents of press releases, fact
sheets, or other documents distributed to the public.
Notice to PRPs
Notice letters are used to inform PRPs of their potential liability and provide an opportu-
nity for them to enter into negotiations, to conduct or finance response activities. The
negotiation process is discussed in detail in Chapter V, RI/FS Negotiations/Settlement and
Chapter VIII, RD/RA Negotiations/Settlement.
Negotiations Negotiations are generally conducted in confidential sessions between the PRPs and EPA
or the state. Neither the public, nor the technical advisor (if one has been hired through a
technical assistance grant by a community) may participate in negotiations between EPA,
DOJ and the PRPs unless everyone agrees to allow such participation. Otherwise the
ability of the parties to assert confidentiality at some later date may be affected.
Special educational efforts should be conducted prior to PRP negotiations to inform the
public that little if any information regarding negotiations will be available to the public
during negotiations.
The confidentiality of statements made during the course of negotiations is a well-estab-
lished principle of the American legal system. Its purpose is to promote a thorough and
frank discussion of the issues between the parties in an effort to resolve differences.
Confidentiality not only limits what may be revealed publicly, but also ensures that offers
and counter-offers made in the course of negotiations may not and will not be used by one
party against the other in any ensuing litigation.
PRPs may be unwilling to negotiate without the guarantee of confidentiality. They may
fear public disclosure regarding issues of liability and other sensitive issues that may
damage their potential litigation position or their standing with the public. This expecta-
tion of confidentiality necessarily restricts the type and amount of information that can be
made public. Community relations staff should consult with and obtain the approval of
other members of the technical enforcement and Regional Counsel team before releasing
any information regarding negotiations. If the site has been referred or is in litigation, DOJ
approval also should be obtained.
C. Community
Relations During
Removal Actions
EPA encourages public participation during removal actions to the extent possible. How-
ever, removal actions may not always allow the same degree of participation as remedial
actions. By their nature, the situations that require emergency removals do not allow for
extensive public involvement. Adjustments to the community relations process must be
made to accommodate necessary time constraints. The NCP requires that a Community
Relations Plan be prepared for all removal actions lasting longer than 120 days. The NCP
also requires a public comment period of at least 30 days for removals with a planning
4-Communily Relations
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period of six months or more before the initiation of on-site activity. For removals with a
planning period of less than six months, a public comment period may be held when
appropriate. The public comment period, if held, begins when the administrative record
file is made available for public inspection.
The enforcement program encourages PRPs to conduct or pay for removal actions. At any
time, the Agency may arrive at an agreement with the PRPs to conduct a removal, which
usually is embodied in an Administrative Order on Consent (AOC). EPA also may issue a
Unilateral Administrative Order (UAO) to compel PRPs to undertake a removal or other
action, hi addition, under limited circumstances, the Agency may refer the action to DOJ,
seeking a court order to secure the removal.
A UAO or AOC is a public document and should be made available to the affected
community, through the Administrative Record file. In addition, community relations
staff, the RPM, and ORC should discuss the terms of the order with and describe the
removal action to citizens, local officials, and the media. If the PRP subsequently fails to
respond to the order, any public statements or information released regarding the status of
actions at the site should first be cleared with appropriate Regional technical and enforce-
ment personnel.
D. Community
Relations During
Remedial Actions
Community relations activities should be planned as early in the enforcement process as
possible, generally before an RI/FS special notice letter is sent to PRPs. Meetings with
small groups of citizens, local officials and other interested parties are extremely helpful
for sharing general information and resolving questions. These meetings also may serve to
provide information on EPA's general enforcement process.
Distribution of general Superfund public information materials, such as the fact sheet,
"The Superfund Enforcement Process: How it Works," may be beneficial to community
relations efforts. A discussion of how EPA encourages settlements also may be appropri-
ate at this time.
Community Relations
Following an RI/FS Order
RI/FS settlements usually are resolved as AOCs. The RI/FS workplan triggers the imple-
mentation of CR activities. When the PRPs are conducting a RI/FS, the settlement triggers
a "kick-off meeting with the public to explain the AOC and outline the next steps.
Community relations, technical and legal staff should attend this meeting. Issues that
should be clarified include EPA approval of the PRP's work plan, PRP's performance of
the RI/FS, and agency oversight of the PRP's work. A fact sheet on the RI/FS process
should be distributed at this meeting and sent to those on the site mailing list, including
local officials. An announcement should be made about where the administrative record
file will be located. The administrative record will include the detailed analysis of alterna-
tives and all RI/FS information the agency considered in selecting a final remedy. It
should be used as a tool to facilitate public involvement in that selection.
Proposed Plan and Public
Comment
When the RI/FS is completed, the agency will issue a proposed plan and publish a notice
announcing a public comment period. At a minimum, the notice is to be published in a
major local newspaper of general circulation. The notice should be a "display" advertise-
ment rather than buried in the "legal notices" section. A formal comment period of at least
30 calendar days is to be provided for the public to submit oral and written comments.
This comment period can be extended to 60 days upon request by the public.
An opportunity for a public meeting is required during the public comment period. A
transcript of the meeting on the proposed plan is to be available to the public in the
administrative record file, and may be distributed through the information repositories or
upon request. Chapter 4 of the Community Relations Handbook outlines specific public
participation requirements.
Community Relations-5
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After the public comment period on the proposed plan has closed, a responsiveness
summary is prepared. It provides lead agency decision-makers with information about
community preferences on remedial alternatives and general concerns about the site. It
also demonstrates to members of the public how their comments were considered during
the decision-making process. A Record of Decision (ROD) is then issued as the final plan
for a particular site or operable unit at the site. Both the ROD and the responsiveness
summary will be placed in the administrative record file and other information repositories.
In addition, the responsiveness summary may be distributed to commentors and those on
the site mailing list. Chapter 4 of the Community Relations Handbook provides further
information on requirements for public notice and availability of the ROD and responsive-
ness summary.
Public Notice and Comment
on Consent Decrees for
RD/RA
If a negotiated settlement under CERCLA Section 106 is reached, the proposed consent
decree will be submitted to the U.S. District Court for approval, as required under
CERCLA section 122(d)(l). It is a legally binding agreement between the agency and the
PRPs. In some cases, the State signs as a third party to the agreement. At the time DOJ
lodges the consent decree with the court, a notice of the proposed agreement must be
published in the Federal Register. There must also be a notice of a public comment period
on the proposed consent decree before its entry by the court as a final judgment.
Responsible parties who are non-settlors to the agreement usually take this opportunity to
raise their own concerns. They may go so far as to file a court case to block entry of the
consent decree. States may do likewise if they believe a consent decree does not protect
their interests.
The public comment period must be at least 30 calendar days in length and may be ex-
tended upon request. The proposed consent decree may be withdrawn or modified if
comments demonstrate that it is inappropriate, improper, or inadequate.
To ensure that public comment opportunities are extended to interested parties, agency
staff generally issue a press release after the consent decree has been lodged as a proposed
judgment with the court. For PRP-lead sites, DOJ should notify the Regional Counsel for
the particular site and provide a copy of the Federal Register notice of the decree. Re-
gional Counsel should ensure that technical and community relations staff are informed of
this.
Community relations staff can then mail copies of the press release or copies of the
Federal Register notice to persons on the site mailing list. The press release should
indicate how copies of the consent decree document may be obtained, including its
location and that of other relevant documents. The procedures for public comment on the
consent decree and a contact name for obtaining further information also should be
announced. The public notice and press release for the consent decree may be combined.
Communications with the public should focus on the remedial provisions of the settlement
agreement. Details of the negotiations, such as the behavior, attitudes, or legal positions of
PRPs, any compromises incorporated in the settlement agreement, evidence, or attorney
work-products, must remain confidential.
If a negotiated settlement for RD/RA results in actions fundamentally different from those
selected in the ROD, the ROD will have to be amended. An amendment to a ROD also
requires a public comment period, which should coincide, if possible, with the comment
period for the consent decree. Comments must be addressed in the Responsiveness
Summary for the ROD Amendment, not the consent decree. During the formal comment
period, a public meeting may be held. Agency staff must offer the opportunity for a public
meeting when there are significant community issues or concerns or the site team thinks a
meeting is prudent. If held during the public comment period, these meetings should be
documented and significant oral comments received during the meeting addressed in a
response to comments documented on the consent decree.
6~Communtiy Relations
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Once the public comment period on the proposed consent decree has closed, DOJ staff (in
cooperation with EPA and State staff) will consider each significant comment and write a
response. DOJ will then file a "Motion to Enter" the consent decree. Response to com-
ments are released to the public at the same time. The agency should use information
repositories to make these documents available to the public. A third press release may be
issued at this time announcing entry of the consent decree.
Community Relations
During PRP Remediation
The lead agency retains responsibility for community relations during a PRP-lead
remediation that conforms with a consent decree or any enforcement order. The scope and
nature of community relations activities will be the same as for fund-lead response actions.
When PRPs participate in community relations activities at the site, EPA, State, and PRP
roles need to be explicitly defined. A PRP may not have been involved in the initial stages
of the CRP, but later may show sufficient interest, commitment, and capability to warrant
some level of participation. The lead agency should then re-evaluate the PRP's role in
conducting community relations and a new CRP may be developed. PRP involvement in
community relations activities also may be addressed in the consent decree or other
enforcement orders.
E. Other
Enforcement Actions
Section 122(i) of CERCLA requires the lead Agency to publish a notice of proposed
settlements for administrative orders on consent under section 122(g)(4) (de minimis
settlements) and under section 122(h) (cost recovery settlements/arbitration). The notice
published in the Federal Register must identify the site and the parties to the proposed
settlement. A public comment period of at least 30 days is required for these agreements.
Regional staff should provide notice (e.g., a press release, a notice to persons on the site
mailing list, or an advertisement in the newspaper of local circulation) to supplement the
FR notice. For further information on response to comments see Chapter 6 of the Commu-
nity Relations Handbook.
Injunctive Litigation
An injunctive case may be referred to DOJ for litigation at any point in the enforcement
process, which may change the scope of community relations activities. Community
relations activities at the site should be re-evaluated by the site team, and changes to
accommodate confidentiality should be agreed upon by the site team, including DOJ.
While consideration should be given to implementing the Community Relations Plan as
previously approved, litigation may require changes in public disclosures. For example,
the court may impose a gag order or place restrictions on information released during
negotiations or at public meetings that address potential site remedy. Under these circum-
stances, the DOJ attorney will advise the site team on how to proceed.
Cost Recovery
If a Fund-financed cleanup is conducted, EPA may sue PRPs to recover costs. Cost
recovery generally follows removal actions or the start of remedial action. Community
interest in the site may have lessened, unless other operable units remain to be addressed.
A spokesperson chosen by the site team, in coordination with DOJ, should take the lead in
responding to inquiries regarding current site conditions. All inquiries regarding litigation
should be forwarded to the lead-agency cost-recovery team, which will prepare a response,
subject to the concurrence of DOJ.
F.
Administrative
Record
Section 113(k)(l) of CERCLA requires the establishment of an Administrative Record file
upon which the selection of a response action is based. It also requires that a copy of the
Administrative Record file be located at or near the site. Section 113(k)(2) of CERCLA
requires that the Agency promulgate regulations outlining procedures for interested
persons to participate in developing the Administrative Record file. Subpart I of the NCP
Community Relaiions-7
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details how the administrative record file (the incomplete record as it is being compiled) is
assembled, maintained, and made available to the public. After the ROD is signed,
referring to the "file" is no longer necessary.
From the remedial investigation through the selection of remedy, the Administrative
Record file will be available for public inspection at a central Regional location and at or
near the site. The information in the record file is crucial to the public in that it contains
the information upon which the lead agency bases its decisions when selecting a final
remedy. The site team should use the Administrative Record file as a tool for facilitating
public involvement.
Publicly-available documents concerning response selection must be made available to all
interested parties at the same time. If EPA requests PRPs to review a plan, other members
of the public should review that plan as well. When a kick-off meeting is scheduled, the
public, including residents and PRPs, should be invited.
The record file and CRP for a remedial action should be made available to the public no
later than the time the remedial investigation phase begins, which is usually when the final
RI/FS work plan is approved. The timing for establishing the record file for a removal
action will depend on the nature of the removal. As outlined in the NCP, for removals
with a planning period of at least six months before on-site activities will be initiated, the
record file must be made available to the public when the engineering evaluation/cost
analysis (EE/CA) or its equivalent is available for public comment. For removals with a
planning period of less than six months, the record file must be available to the public no
later than 60 days after the initiation of on-site cleanup activity.
Purpose Of the The Administrative Record has two purposes. First, the record provides an opportunity for
Administrative Record me Pu^^c to t>e involved in the process of selecting a response action. During the selection
of a response action, information is reviewed and made available in the publicly accessible
Administrative Record file. Second, the Administrative Record represents the information
that was available to and considered by the Agency at the time of its decision. If the
Agency is challenged concerning the adequacy of a response action, judicial review of that
selection will be limited to the Administrative Record. A complete Administrative Record
will allow the Agency to avoid costly and time-consuming litigation. The public should be
advised that comments must be submitted in a timely manner in order to be considered.
The CRC's duties concerning the relationship of the Administrative Record file to the
information repositories, public notices, and public comments are described in Chapter 6
of the Community Relations Handbook. Additional information on the roles of the CRC,
OSC, RPM, and Regional Counsel in the development and maintenance of the Administra-
tive Record can be found in Chapter XV, Records Management and in OSWER Directive
9833.3A-1 "Final Guidance on Administrative Records for Selection of CERCLA Re-
sponse Actions" (December 3,1990).
8-Communily Relations
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Section III. Planning and Reporting Requirements
SCAP SCAP planning activities take place at the beginning of each fiscal year. The site team,
including the RPM, CRC, and Regional attorney decide the course of community relations
activities for each site by quarter. For PRP-lead sites, the enforcement case budget
(described below) provides funding for community relations.
Site-specific characteristics affect the costs of community relations at Superfund sites.
The unique features of each Region and the specific characteristics of each site necessitate
individualized community relations programs. Such differing programs in turn require
changes in the level of involvement from site to site.
Range of Activities
The range of activities conducted for Superfund community relations may include devel-
oping brochures, writing CRPs, interviewing members of the community, preparing fact
sheets, organizing information repositories, organizing public meetings, issuing public
notices, developing ROD responsiveness summaries, holding small group meetings,
translating information for communities and conducting workshops. The Community
Relations staff in the Waste Management Division or the Office of Public Affairs usually
works with the RPM to conduct these activities.
Range of Costs
As stated above, the range of costs varies from site to site. Higher costs can be expected at
sites that are more complex, and, thus, more time consuming.
A variety of conditions and circumstances may influence the costs of performing commu-
nity relations activities at Superfund sites, such as:
+ Different Regional preferences and expectations
* Political, social, and economic differences among sites
«• Level of technical complexity
* Stage of the remedial response action
* Level of public involvement
* Size of geographic area
* Extent of travel requirements
B.
CdSG BudQGt The enforcement case budget provides funds for community relations for RI/FS and RD/
RA activities when a PRP-lead is expected. The CRP should be funded concurrently with
the RI/FS negotiations. Community relations implementation (CRI) should be funded
concurrently with the RI/FS oversight work assignment. A revised CRP should be funded
concurrently with the RD/RA negotiations and CRI for the RD/RA oversight. The
enforcement case budget does not fund community relations at Federal, State or Federal-
Enforcement lead sites. The community relations lead should be designated as RP for
activities funded by the enforcement case budget.
Community Relations-9
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Section IV. Potential Problems/Resolutions
This section discusses specific problems that may occur during community relations
activities at enforcement sites, and suggests methods for resolving these issues.
A.
Volatile Public
Meeting
Keeping citizens informed from the beginning of the process will help to avoid volatile
situations. However, perceived health and safety concerns posed by a hazardous waste site
can sometimes lead community members to react emotionally during public meetings and
informational briefings. Meeting participants can become confrontational and defensive
when discussing proposed solutions to a site, particularly if technical information is not
completely understood. To alleviate this situation, EPA technical and legal staff may use a
neutral, third-party moderator to facilitate a useful exchange of information during a
meeting. A moderator can help set the tone for a meeting by setting forth guidelines at the
outset. When a moderator serves as the intermediary between citizens and the lead agency,
the meeting may run more efficiently.
B. Lack of
Community Interest
Through initial contacts with a site community, EPA may discover that citizens have little
knowledge of or interest in site activities. In this situation, it may be necessary to contact a
broader group of community members to ensure that undetected concerns do not get
overlooked. Additional groups that may be contacted include: clergy, League of Women
Voters, civic groups, garden clubs, neighborhood associations and professional organiza-
tions. Information on these groups is usually available from the local Chamber of Com-
merce. If, after contacting a broad range of potential interest groups, no significant interest
or concerns are identified, community relations staff should devote time to developing and
implementing extensive outreach efforts.
C. PRP Involvement
As outlined in Chapter 6 of the Community Relations Handbook, PRPs may participate in
community relations activities. This may include developing fact sheets and brochures on
cleanup actions. In this situation, the RPMs should make it clear to the community which
materials have been produced by EPA and which have been prepared by the PRP with
review by EPA. Further, RPMs should work closely with PRPs who wish to develop
community relations materials to ensure that those materials receive adequate EPA review
before distribution. EPA - and not the PRPs - retains all decision-making authority and
directs all community relations activities. When EPA produces a fact sheet or other
outreach document, those materials also should be distributed to the PRP.
D. PRP as Principal
Employer
The nature of the environmental threat and how directly a community feels affected
generally determine the reaction of the community toward outreach activities at a site. In
some situations, economic considerations of the residents can outweigh their environmen-
tal concerns. Nevertheless, the community must be informed that PRPs will be made
accountable to the public for their site. RPMs should address these fears as much as
possible by emphasizing EPA's desire to present the facts about the site. For example,
when a PRP is the principal employer in a town, citizens may fear losing their jobs if they
attend meetings about the site. It is important to organize meetings and interviews in such
a way that citizens can comfortably express their concerns. It may be more appropriate to
conduct telephone interviews to ensure privacy. RPMs also may want to institute a site
hotline or include information request forms in the newspaper to provide anonymity.
These techniques may help secure the involvement of hesitant community members.
10-Community Relations
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Section V. References
OSWER Directive 9836.0-1 A, "Community Relations During Enforcement Activities and
Development of the Administrative Record" (November 1991).
OSWER Directive 9833.3 A-l, "Final Guidance on Administrative Records for Selection
of CERCLA Response Actions" (December 3, 1990).
OSWER Directive 9836.2, "CERCLA Community Relations Mailing List" (February 6,
1989).
OSWER Directive 9230.0-08, "Planning for Sufficient Community Relations" (March 7,
1990).
Manuals EPA/540/R-92/009, Community Relations in Superfund: A Handbook (January 1992).
OSWER Directive 9200.3-01, Superfund Comprehensive Accomplishments Plan (SCAP)
Manual (Annual).
Training "Community Relations in Superfund: Concepts and Skills for Response Staff." For
additional information, call 703-603-8751.
"Risk Communication in Superfund," 703-603-8822.
Contacts Office °f Emergency and Remedial Response, Hazardous Site Control Branch, State and
Local Coordination Branch, 703-603-8751
Regional Community Relations Coordinator.
Community Relations-11
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XIV. STATE
ENFORCEMENT
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Chapter XIV
State Enforcement
Section I. Description of Activity 1
Introduction 1
Background Information 1
Enforcement Authorities 1
Section li. Procedures and Interactions 3
A. The Role of the State and EPA in PRP Oversight 3
B. Cooperative Agreements and Core Program Funding 4
C. Development of the Lead Agency Enforcement CA 5
D. Sections in a CA Application 5
E. Development of the SMOA 6
F. Articles in a SMOA 6
G. EPA Approval of State Remedies 7
Section III. Planning and Reporting Requirements 9
A. SCAP 9
Site Classification 9
B. CERCLIS/WasteLAN 9
Activity Leads 9
Event Leads 10
C. Case Budget 10
Section IV. Potential Problems/Resolutions 12
A. Forum Shopping by PRPs 12
B. Overseeing State Oversight of PRPs 12
C. SCAP Targets 12
D. Standard Planning Time Line 12
E. SMOA Development 12
F. State Challenges to RD/RA Consent Decrees 12
Section V. References 13
Policy 13
Regulation 13
Guidance 13
Manual 13
Contacts 13
Stale Enforcement-i
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Chapter XIV
State Enforcement
Section I.
Introduction
Description of Activity
This chapter focuses on state involvement in the Superfund enforcement process. This
chapter primarily addresses potential agreements and funding mechanisms between EPA
and states involved in the Superfund process. This information should be used in conjunc-
tion with the National Oil and Hazardous Substances Pollution Contingency Plan, specifi-
cally Subpart F - State Involvement in Hazardous Substance Response (40 CFR 300) and
Subpart O - Cooperative Agreements and Superfund State Contracts for Superfund
Response Actions (40 CFR Part 35 Subpart O), and other available EPA guidances that are
cited throughout the chapter.
Background
Information
CERCLA provides for state involvement in selection of remedies and negotiations. EPA
and a state may agree to designate a site as state-lead enforcement. If so, the state may
receive funding for various enforcement activities, including; (1) PRP searches, (2)
issuance of notice letters to PRPs, (3) negotiations with PRPs to secure their commitment
for site cleanup, (4) administrative or judicial enforcement actions to compel PRP cleanup,
and (5) oversight of PRP response activities.
Before reauthorization, CERCLA did not contain a framework for EPA to involve states.
CERCLA now provides for state involvement in selection of remedies and the enforce-
ment process. EPA's intent is to obtain more cleanups by PRPs through state enforce-
ment.
This section focuses on the state enforcement process by describing these two major
components of the program:
* Authorities available for Federal and state enforcement, and
+ CERCLA state enforcement strategy.
These areas are discussed in the following sections.
Enforcement
Authorities
Section 121(f) of CERCLA, as amended by SARA, requires EPA to provide substantial
and meaningful involvement by states in the selection, development, and initiation of
remedial actions undertaken within their boundaries. Subpart F of the NCP implements
section 121(f)(l) of CERCLA. It specifies among other things, state and EPA responsi-
bilities for identifying state and federal ARARs, an annual process for establishing
priorities and identifying the lead for enforcement response, and a notification process for
state participation in PRP negotiations. Section 121(f)(2)(C) of CERCLA authorizes EPA
to conclude settlement negotiations with PRPs without state concurrence.
Many state statutes authorized their programs to remediate releases of hazardous sub-
stances. This authority can take many forms, from state responsibility over non-NPL sites,
to authority for actions at all hazardous sites in the state. CERCLA does not preclude
states from pursuing enforcement actions under state law in the absence of formal agree-
ment with or lead designation by EPA. In rum, EPA has the authority under CERCLA to
proceed with its own enforcement action or attempt to intervene prior to a state settlement
with or litigation against PRPs. However, as specified in section 122(e)(6) of CERCLA,
after RI/FS work has been initiated by EPA or the PRPs (pursuant to an Administrative
Stale Enforcement-1
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Order or Consent Decree), no PRP may undertake any remedial action at the facility unless
the action is authorized by EPA.
The enforcement strategy for state involvement emphasizes maximizing the number of
sites that can be cleaned up by enhancing and fully utilizing state capability and minimiz-
ing duplication of effort between EPA and the states. There are two types of state-lead
enforcement sites depending on whether EPA provides money to the state for work or
oversight at the site. Sites where EPA does not provide site-specific money and the state
has the enforcement-lead are referred to as non-Fund financed state-lead enforcement sites.
Sites where EPA provides money and the state has the enforcement-lead are referred to as
state-lead enforcement sites. Section 300.515(e)(2)(ii) provides "state concurrence on a
ROD is not a prerequisite to EPA's selecting a remedy, i.e., signing of ROD, nor is EPA's
concurrence a prerequisite to a state's selecting a remedy at a non-Fund-financed state-lead
enforcement site under state law." See OSWER Directive 9831.9, "Questions and An-
swers About the State Role in Remedy Selection at Non-Fund Financed State-Lead
Enforcement Sites" (April 18,1991). However, remedies must be consistent with the
NCP, EPA policies and guidances to ensure successful cost recovery efforts and to reduce
difficulties in deleting sites from the NPL when remedies are implemented.
Section 104(d)(l) of CERCLA authorizes EPA to enter into a contract or cooperative
agreement with capable states to take actions to respond. Section 300.505 of the NCP
describes the requirements for EPA/State Superfund Memorandum of Agreement
(SMOA). Subpart O of 40 CFR Part 35 details requirements and procedures for Core
Program Cooperative Agreements, Site-specific Cooperative Agreements, and Superfund
State Contracts.
2-Slate Enforcement
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Section II. Procedures and Interactions
To assist EPA and individual states operating together in the Superfund program, it is
preferable to have clearly defined processes and procedures for coordination and interac-
tion. Although either EPA or states may conduct enforcement actions against PRPs
without the other's involvement, it is in both the state's and EPA's best interests to
coordinate such actions.
There is an opportunity under CERCLA for coordination and the sharing of responsibili-
ties between EPA and the states. EPA and states may interact in one of the following
arrangements:
* States participate, in a support role, in EPA-lead enforcement actions pursuant to
section 121(f) of CERCLA (EPA-lead enforcement sites)
* States assume lead responsibility relying on CERCLA authority through Cooperative
Agreements (CAs) (state-lead Fund sites)
* States assume oversight responsibility for PRPs at EPA-lead sites (EPA-lead enforce-
ment site with state as lead technical agency)
* States act under their own authority as lead agency with assistance from EPA through
CAs which specify EPA concurrence on the ROD and other major deliverables (state-
lead enforcement sites)
+ States act under their own authority as lead agency, absent a SMOA or CA, through
participation in "Annual Consultation" (see 40 CFR section 300.515(h)(i)). (Non-
Fund-financed state-lead enforcement sites).
Another potential relationship between EPA and the states can be established through the
Core Program. EPA provides funding for states to develop state enforcement capability
under this program.
A The Role Of the ^ e^ect>ve enforcement program requires a balanced approach that relies on a mix of
"c A en A • nnn Fund-financed cleanup, Consent Orders/Decrees reached through formal negotiations, and
OldtG and EPA in PHP where necessary, litigation. The general nature of EPA and state interaction in pursuing
Oversight PRP s>te cleanup commitments can best be illustrated through a discussion of required
oversight roles for states and EPA as well as available funding schemes. Where EPA
provides money to a state for site-specific remedial work or PRP oversight, EPA will
require EPA concurrence on the remedy and consistency with the NCP.
Oversight roles are as (1) lead agency and (2) support agency. The lead agency has
primary responsibility for planning and implementing a response under CERCLA. The
support agency furnishes necessary data to the lead agency, reviews response data and
documents, and provides other assistance to the lead agency. A variation on the strict
distinction between lead and support roles is where states or EPA can have primary
responsibilities for specific tasks (e.g., RI/FS) while the other agency has the overall lead
for the clean up process at the site. Lead agency designation is determined by EPA in
consultation with the states based on consideration of numerous factors. It is generally
preferable that enforcement lead designation remain the same throughout the remedial
process, instead of lead being designated separately for each major event, such as RI/FS,
RD/RA.
States should attempt to obtain a commitment from PRPs to pay for oversight costs
whenever negotiating with PRPs prior to requesting funds from EPA. Later, EPA should
seek recovery for CA oversight costs from PRPs. When oversight costs are reimbursed by
PRPs at the end of the year or at completion of the response action, EPA funds can be used
to the extent available as described on OSWER Directive 9831.6a-6d, "Interim Final
Guidance Package on Funding CERCLA State Enforcement Actions at NPL Sites" (April
7,1988). Because CA funds are 90% Federal, the money that is reimbursed to EPA must
State Enforcemenl-3
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go into the Trust Fund to be reappropriated later. EPA cannot collect the States' 10%
share. In applying for an enforcement cooperative agreement, the state applicant must
demonstrate that "it has taken all necessary action to compel PRPs to fund the oversight"
of negotiated cleanup activities. (See Subpart O of 40 CFR Part 35, section
35.6155(c)(2)(iii)).
During annual consultations or when developing agreements, EPA and the states should
consider the extent to which each party will be involved in the other's negotiations with
PRPs. The extent of involvement should be based on various factors. These include the
state's staff resources, level of confidence in past experience with the state, and site-
specific factors such as complexity or national significance of the response action. See
OSWER Directive 9831.6a-6d, "Interim Final Guidance Package on Funding CERCLA
State Enforcement Actions at NPL Sites" (April 7,1988) for detailed information.
Where EPA has the lead for oversight, EPA encourages the state to conduct oversight tasks
only if it has the in-house capability to do the work. Generally, EPA will not fund the state
to hire contractors for oversight tasks (with the exception of procuring another state
agency) unless the state provides adequate justification for their use. Furthermore, EPA
will not fund states to conduct oversight tasks that duplicate EPA's efforts. Guidance for
determining whether to fund a state for oversight of a PRP response can be found in
OSWER Directive 9831.6b, "CERCLA Funding of PRP Oversight by States at NPL Sites"
(April 7,1988).
States also may be involved in three-party agreements (EPA/State/PRP). Generally, the
Agency does not encourage three-party agreements for every site as resource duplication
may occur. Yet, this is a viable option where EPA and a state work together.
B. Cooperative
Agreements and Core
Program Funding
EPA funding of states is related to encouraging or compelling PRPs to undertake response
activities to cleanup a site (such as negotiations for RI/FS and RD/RAs) and to conduct
necessary technical, administrative and enforcement activities during their oversight of
PRPs' response (such as compiling the administrative record, preparing remedy decision
documents and enforcing the provisions of settlement agreements).
Two types of Superfund response agreements are essential to state participation in
CERCLA implementation. The first, Superfund Cooperative Agreements, is the vehicle
through which EPA can provide funds to states to assume responsibility as lead or support
agencies for response. CAs are usually site-specific but there are options for multi-site
enforcement CAs. Core Program Cooperative Agreements may be used for non-site-
specific activities that support states. See Subpart O of 40 CFR 35 information.
The second, Superfund State Contracts (SSCs), is necessary to ensure state involvement as
mandated under section 121 of CERCLA and to obtain state assurances required under
section 104 of CERCLA prior to remedial action. SSCs are only applicable to Fund sites.
SSCs are not applicable to enforcement sites activities because state assurances are not
required for enforcement sites.
Funding through enforcement cooperative agreements may be for state-lead or state-
support enforcement activities. State-support activities include a review role for the state.
Core Program CAs expand the range of activities eligible for funding. Core Program
funding provides funds to a state to conduct CERCLA implementation support activities
that are not assignable to specific sites, but are intended to develop and maintain a state's
ability to participate in the CERCLA response program.
The amount of funding provided to states is negotiated between the state and the Region
based on the availabiHly^of funds and the recipient's program needs in the following areas:
"-<= \^ ;•
+ Procedures for removal actions and longer-term remediation of environmental and
health risks at hazardous waste sites
4-State Enforcement
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* Provisions for satisfying all requirements and assurances
* Legal authorities and enforcement support associated with proper administration of
the recipient's program and with efforts to compel PRPs to conduct or pay for studies
and/or remediation
* Efforts necessary to hire and train staff to manage publicly-funded cleanups, oversee
RP-lead cleanups, and provide clerical support
* Efforts necessary to build infrastructure procedures for administrative record compi-
lation and cost documentation
+ Other activities deemed necessary by EPA to support sustained EPA/recipient
interaction in CERCLA implementation.
States can use Core Program CAs to develop safety plans, quality assurance project plans,
and community relations plans. Core Program CAs can provide funding for document
review, development, and refinement of the enforcement program. States can also use
Core Program CAs to hire and train staff to oversee cleanup matters and to cover clerical
or administrative support, which cannot be charged to site specific CAs.
Development of
the Lead Agency
Enforcement CA
In developing lead state-enforcement CAs, EPA requires that states document their ability
to perform the response action and enforcement. Specifically, a state must demonstrate
that it has the authority, jurisdiction, and the necessary administrative capabilities to take
an enforcement action(s) to compel PRP cleanup of the site, or recovery of the cleanup
costs. When the state submits a CA application, EPA and the state have already desig-
nated the site as a state-lead enforcement site. The Region evaluates the state's ability to
conduct the response action and the ability to be lead enforcement agency. When EPA
funds state response or oversight activities, under a cooperative agreement, the state has
assured that their response actions and oversight of PRPs will be consistent with
CERCLA, the NCP and applicable EPA guidance.
The discussion of Case Budget in Section III of this chapter describes state activities that
can and cannot be funded under state enforcement CAs. Detailed information on the
following provisions can be found in Subparts F of the NCP, Subpart O of 40 CFR Part 35
and in "Interim Final Guidance Package on Funding CERCLA State Enforcement Actions
at NPL Sites."
Sections in a CA
Some of the significant sections included in a CA application are listed below; detail is
provided on those related to state enforcement. Depending on the task to be funded by the
Application CA (e.g., PRP search, issuance of notice letters and negotiations, RI/FS), other additional
provisions may be added.
* Legal Authority - Documents that adequate enforcement authorities are available
* Consistency with CERCLA Section 122 - Provides that state settlements will be
consistent with certain CERCLA section 122 provisions and related EPA Superfund
Policy when negotiating and settling with PRPs under a C A. (Although states can avail
themselves of equivalent procedures, they are not authorized by CERCLA to use
section 122 when pursuing enforcement actions under their own authorities)
+ Negotiation Time Frames - Ensures that the state will notify EPA if a settlement is
not reached within 90 days of issuance of special notice for RI/FS negotiations and 120
days for RD/RA negotiations; and requires that the state recommend whether
negotiations should continue with the PRPs
• Formalizing Successful Actions - Ensures that the state will culminate successful
actions by entering into an enforceable order or decree, or issuing some other
enforceable document requiring the PRP to conduct the response action in accordance
with the NCP and relevant EPA policy and guidance
State Enforcement-5
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Other requirements that are included in a CA application address the Administrative
Record, Community Relations, and Scope of Work. The planning and reporting require-
ments of these state enforcement actions are presented in section III of this chapter.
E. Development of
the SMOA
A Superfund Memorandum of Agreement (SMOA) is a non-site specific document that
facilitates and documents the processes and procedures that the Region and state use when
conducting site-specific response actions. A SMOA, if negotiated properly, should remain
applicable to the EPA-State Superfund interaction for several years with only relatively
minor modifications as changes to the relationship occur.
The SMOA concept provides a written document that is mutually approved by the Agency
and state and that covers aspects of EPA-State interaction on Superfund activities. The
articles covered in the SMOA parallel the major points of State-EPA interaction set forth
in the NCP. EPA and the State should tailor the SMOA to their particular needs. SMOAs
are used to describe the terms for the states and EPA when the state wants to become the
lead agency for enforcement action at an NPL site or seek EPA concurrence on the remedy
at an NPL site. A SMOA shall be supplemented by site-specific enforcement agreements
between EPA and states which specify schedules and EPA involvement. The SMOA may
identify the extent to which EPA and the state will participate in each other's response
actions and how ARARs will be identified. In the absence of a SMOA, EPA and the states
shall comply with the requirements and review times in section 300.515(h) of Subpart F of
the NCP. SMOAs, unlike CAs, are not legally binding. SMOAs and the state's responsi-
bilities for involvement are available in Subpart F of the NCP and OSWER Directive
9375.0-01 "Interim Final Guidance on Preparation of a Superfund Memoranda of Agree-
ment (SMOA)" (May 8,1989). The guidance presents a model SMOA suggesting lan-
guage and content for later adaptation by EPA Regions and States.
F.
Articles in a
SMOA
: following paragraphs summarize material that may be included in the SMOA regard-
ing State enforcement; following this information is a listing of other important articles for
inclusion in the SMOA.
* Principles - This article summarizes the status of the state's hazardous waste problem,
the status of the state's Superfund program, the roles of the lead and support agencies,
as well as agreements concerning the aggressiveness of enforcement activity.
* Enforcement - This article describes expectations for enforcement and the general
nature of EPA and state interaction in pursuing PRP site cleanup commitments. The
parties to the SMOA may agree in principle that:
1. Negotiated response actions with qualified PRPs are essential to an effective
program for the cleanup of NPL sites
2. Two-party (i.e., EPA or State and PRP) settlement negotiation and execution is
generally more efficient than three-party (i.e., EPA and State and PRP) negotia-
tion and execution
3. The state has demonstrated adequate authority to carry out enforcement
In addition, the parties to the SMOA may agree in practice to do the following:
4. Designate the lead and support agencies for enforcement actions at NPL sites
during the annual planning process
5. Indicate those sites where the support agency will be requested to concur on the
Lead Agency's Record of Decision (ROD) or other decision document. EPA
retains final approval authority on RODs where it has provided monies to states
for oversight/enforcement activities
6. Develop site-specific enforcement strategy outlines with timeframes during the
annual planning process
6-State Enforcement
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7. Set forth response action commitments and settlements with PRPs in enforceable
documents indicating the lead agency responsible for all Superfund communica-
tion with PRPs
8. Organize a meeting between the lead agency and the support agency prior to the
start of negotiations with PRPs to discuss goals, starting points and bottom-line
positions for negotiations
9. Provide draft and final enforcement documents to the support agency prior to
issuance to the PRPs
10. Allow for assistance requests by lead agency to support agency at any time during
the enforcement and negotiation process
11. Have the lead agency notify PRPs of a planned RI/FS and determine their
willingness and ability to conduct the RI/FS
12. Provide the state an opportunity to be a party to any enforcement document in
which it chooses to participate
13. Recognize that the agreement does not limit the ultimate enforcement authority
of EPA or the United States government.
EPA and the State also may include the following articles in the SMOA as suggested in
OSWER Directive 9375.0-01, "Interim Final Guidance on Preparation of Superfund
Memoranda of Agreement (SMOA)" (May 8,1989):
* Federal facilities
* Introduction and Statement of Purpose
* Agreement Concerning Roles and Responsibilities
• Lead State Agency Designation
* Site-Specific Designation of Lead/Support Agency
* Remedial Project Manager/Support Agency Coordinator Designations
* Support Agency Concurrence
* Points of Contact
* Planning/Coordination Processes
* Removal Actions
* Processes to be Defined
* Consultation, Agreement, and Concurrent Processes
* Support Agency Site-Specific Review/Oversight
• Resolution of Disputes
* Exclusion of Third Party Benefits
* Negation of Agency Relationship.
Subpart K of the NCP will address roles of the state, Federal facilities, and EPA in
SMOAs, Interagency Agreements, and other processes.
G. EPA Approval of
State Remedies
EPA retains remedy selection authority when the lead agency is acting under CERCLA
authority. States retain remedy selection when they are acting under state authority
without a cooperative agreement with EPA. However, EPA may not be bound by a state-
selected remedy unless the Regional Administrator has expressly adopted, in writing, a
remedy that complies with section 121. At non-Fund-financed state-lead enforcement
sites where the state does not have a cooperative agreement with EPA, a state may proceed
without EPA concurrence and adoption of the ROD for the site.
Stale Enforcement-?
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The Agency's potential for achieving cleanup goals can be optimized by including appro-
priate state-lead enforcement sites. This is advantageous where states have developed a
willingness and ability to manage state-lead enforcement sites within reasonable
timeframes.
References
OSWER Directive 9831.6, "Interim Final Guidance Package on Funding CERCLA State
Enforcement Actions at NPL Sites" (April 7,1988).
OSWER Memorandum 9375.0-01 attachment, "Interim Final Guidance on Preparation of
Superfund Memoranda Of Agreement" (May 8,1989).
OSWER Directive 9375.2-01, "State Core Program Funding Cooperative Agreements"
(December 12,1987).
8-State Enforcement
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Section III. Planning and Reporting Requirements
EPA defines state-lead enforcement as those National Priorities List (NPL) sites where the
state has primary responsibility for the site.
In order to increase the contribution of state-lead enforcement sites toward CERCLA
cleanup goals and to encourage state enforcement activity, it is important that funding is
placed where the most evident environmental results can be achieved. Moreover, the
necessary coordination between the Federal government and states can only work when
funds are planned and reported for, as this section illustrates.
The following planning and reporting issues are presented in this portion of the chapter:
* SCAP process related to state enforcement
* State-lead enforcement and related mandates
• Classification of site leads
* CERCLIS/WasteLAN and related Agency and state responsibilities
* Different types of state leads, and
* Case budget and cooperative agreement information.
Each of these topics is discussed in detail in this section of the chapter.
SCAP Reiions ^ required to report progress on State Enforcement-lead sites as they would any
other site. This includes State Enforcement (SE) leads where there is Federally financed
work performed by the state with a state enforcement component; and work financed by
the PRP under a state order through which no EPA oversight support or money is provided
(SR). (See additional detail on activity and event lead codes under section B of this
chapter.)
Site Classification
After a hazardous waste site is identified, EPA or a State initiates an investigation to
identify PRPs associated with the site. On the basis of this preliminary PRP search, EPA
(perhaps in coordination with the state) may make an initial determination of how cleanup
of the release will be managed and who will initiate enforcement actions under CERCLA.
The decision to classify a site as a state enforcement-lead response is based on the site
history, strength of legal evidence and the national significance of the site.
B.
CERCLIS/
WasteLAN
The relationship of states to the budgetary planning process is graphically presented in
Exhibit XIV-1. The relationship begins when the Regional office together with the state
determines activity and event targets for the SCAP and STARS. These targets are re-
viewed by EPA Headquarters through CERCLIS/WasteLAN and used to revise SCAP and
STARS, and to determine the case budget.
The CERCLIS/WasteLAN system uses a series of activity and event codes to designate the
lead agency. A discussion of these codes follows.
Activity Leads
A lead code must be placed in CERCLIS/WasteLAN for all events and activities. For RI/
FS, RD, RA, O&M, and enforcement activities, the lead codes identify the entity perform-
ing the work. There are several possible enforcement activity leads the state may assume at
a site.
Slate Enforcement-*)
-------
The SCAP defines the following codes to designate enforcement activity leads:
* SE - SE stands for State Enforcement. This code is used to designate enforcement
activities initiated by a state using its own enforcement authorities to clean up sites.
Trust Fund dollars are used to pay or partially pay for the enforcement and response
activities at state enforcement lead sites through Cooperative Agreements. SE could
therefore be used for RI/FS and RD/RA negotiations
* FE - FE stands for Federal Enforcement site where Fund money is being used to pay
for the enforcement activities.
Event Leads
c.
Case Budget
Event types are codes for a specific response, non-response, or a support event within the
Pre-Remedial, Remedial, Removal, and Community Relations components of the
Superfund program.
States have a role in the following event codes:
* S - S stands for state-lead site where events are paid with Trust Fund dollars
* SN - SN is used to designate state-funded events where no Trust Fund expenditures are
involved. Site events are undertaken solely by the state and paid for by state
authorities. SN applies to response events (RI/FS, RD, RA, removal)
* SR - SR stands for State Enforcement/Responsible Party Financed and is used to
designate events where the state has an administrative or judicial order requiring the
PRPs to do the response work. There is no Federal concurrence on the remedy, and
no State/EPA agreements, or cooperative agreements covering the site
* PS - PS is used for a PRP response under a state order, when Fund money is supporting
Cooperative Agreements with states conducting state-lead oversight; or for sites not
receiving Fund money that receive EPA oversight through SMOAs, State/EPA
agreements or Cooperative Agreements. Money will be approved through the case
budget described in the following section.
The Case Budget (CB) allocation is the approved extramural funding for enforcement
activities and events identified in CERCLIS/WasteLAN. Funds are available to the
Regions on a quarterly basis through the Advice of Allowance (AOA) process. Regions
may use enforcement funds in their TES contracts or Non-TES vehicles, including Coop-
erative Agreements. See Exhibit XIV-2 for a diagram illustrating Cooperative Agreement
funding through the case budget and refer to Chapter XVI, Contracts and Case Budget, for
specific case budget information.
The FY 91 case budget includes approximately $3.6 million to support enforcement
Cooperative Agreements with states. This money is intended to fund state support activi-
ties during Federal-lead enforcement actions and conduct of State-lead enforcement
actions (SE-lead) or oversight (PS-lead). These resources will be distributed to each
Region through the OWPE AOA. Specifically, state enforcement CAs should be used to
fund the following state activities:
* PRP search
* Negotiations
* Administrative or judicial enforcement
«• Oversight of PRP response (RI/FS)
* Participation in site-specific activities in cases in which EPA has reached a settlement
agreement with the PRPs.
Funds for state enforcement CAs are not intended to provide states with resources to:
* Conduct state-lead RI/FSs, RDs, or RAs. Dollars for these events are allocated by
OERR
10-Slale Enforcement
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Exhibit XIV-1
Relationship of States to Budgetary Planning Process
i i
sment Remed
ities Even
SEorFE S,SN, SR,PS
$ Enforcement Remedial
Activities Events
\ \
SCAP/STARS
CERCLIS/
WasteLAN
•
•
*
rh
t
SCAP/STARS
Case
Budget
$
State and
Region Interact
to determine
budget targets,
activity targets,
and event lead
through the
SCAP/STARS
process
Data from
Regions
entered into
CERCLIS/
WasteLAN
system
HQand
Regional
review of data
in CERCLIS/
WasteLAN
HQ
determines
furxing level
in Case
Budget
findudfKj
funds for
Cooperative
Agreements)
-------
Exhibit XIV-2
CA Funding Through Case Budget
Case Budget
Moneys
(available Quarterly)
REGIONS
I
III
IV
VI
VII
VIM
IX
/
Q
0
NON-TES
VEHICLES
a
<• — i
9
m
,
CAs
-------
4 Oversee PRPs at Federal-lead sites. Dollars for oversight of RP response at Fund-lead
or Federal enforcement-lead sites are generally allocated from the TES or ARCs
contracts
* Award community relations technical assistance grants. Allocations from these come
OERR.
Three priorities have been established to help guide the Regions in planning enforcement
CA resource needs. The priorities are consistent with EPA's goal to achieve 650 construc-
tion completions by 2000 and with the Agency's policy of encouraging state involvement
in CERCLA enforcement activities. The Regions should, when possible, use CAs to fund
state support activities and state-lead enforcement activities at sites in each of the follow-
ing categories:
+ Sites counting toward the 650 construction completion goal
«• Sites in which states have shown strong enforcement interest (primarily state-lead
sites). More in-depth information on these priorities can be found in the OS WER fiscal
year SCAP Manual. Also refer to Chapter XVI, Contracts and Case Budget, for
additional background on the development of the case budget and related Agency
responsibilities.
Stale Enforcement-! 1
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Section IV. Potential Problems/Resolutions
This section discusses specific issues RPMs may confront during state enforcement
activities and suggests methods for resolving these issues.
A. Forum Shopping
by PRPs
This situation occurs when PRPs negotiate separately with state and Federal authorities to
identify their best deal. There are advantages and disadvantages to this strategy for the
PRPs: the PRP is unable to get liability releases from Federal and state authority unless a
joint decree is signed (however, a joint decree doesn't guarantee releases—releases must
be negotiated as part of the settlement). Moreover, PRPs should be interested in the
process of deletion from the NPL. EPA can delete a site from the NPL only if the site
meets standards set forth in the NCP, not if it meets only a state's requirements. Therefore,
RPMs need to make it clear to PRPs that it is in their best interests to work both with EPA
and the state in developing a settlement.
B OVGrSGGind StdtG ^° avo'd delays in the project because of poor quality work, a vigorous oversight effort is
n ' ht t ODD necessary. The RPM must make sure the state is aggressive in its oversight efforts and
UVGiSignl OT rnrS snouid W0rk closely with state officials to make sure the work conducted is of acceptable
quality. For example, the RI/FS must be of sufficient quality to support the ROD.
c.
SCAP TdrOGtS When states delay discussions with the Regions concerning their SCAP targets, it is
difficult to monitor progress. It is imperative that states be viewed as partners with the
Region. With a state-lead project, EPA should work closely with the state to identify start
and close dates for activities listed on the SCAP so that target figures will be accurate.
D. Standard
Planning Time Line
If Regions do not complete their schedule through the RA phase, their budget could be
short-changed. For planning SCAP budget projections, the RPMs should use the Standard
Planning Time Line or Regional Time Line, until better planning information becomes
available for projecting start and completion dates for events. These dates are critical for
budget projections and influence budget estimates for upcoming years.
SMOA
Development
SMOAs are not required unless the state wishes to recommend the remedy for concurrence
or to be the lead agency for non-Fund financed activities at an NPL site or if the Region
and the State wish to modify the review times set forth in the NCP. When the state wishes
to negotiate a SMOA, EPA must do so; however, EPA may not require that the state draft
a SMOA. In general, Regions and states should work to encourage development of
SMOAs.
F. State Challenges
to RD/RA Consent
Decrees
Pursuant to section 121 (f)(2)(B), states can challenge ARARs in Consent Decrees. These
challenges can be a major source of delay. RPMs should establish and maintain contact
with the state throughout the process to avoid delays.
12-State Enforcement
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Section V. References
PoliCY National Oil and Hazardous Substances Pollution Contingency Plan: Final Rule (March 8,
1990) to FR 8666, Subpart F - State Involvement in Hazardous Substance Response and
Subpart K - Federal Facilities.
Regulation 40 CFR Part 35, Subpart O, "Cooperative Agreements and Superfund State Contracts for
Superfund Response Actions" (June 5,1990) 40 FR 22994.
GllidanCG OSWER Directive 9831.2, "Reporting and Exchange of Information on State Enforcement
Actions at National Priorities Sites" (March 14,1986).
OSWER Directive 9375.0-01 attachment, "Interim Final Guidance on Preparation of
Superfund Memoranda Of Agreement (SMOA)" (May 8,1989).
OSWER Directive 9831.8, "Counting State-lead Enforcement NPL Sites Toward the
CERCLA Section 116 (e) RA Start Mandate" (October 21,1988).
OSWER Directive 9831.7, "Supporting State Attorneys General CERCLA Remedial and
Enforcement Response Activities at NPL Sites" (June 21,1988).
OSWER Directive 9831.6, "Interim Final Guidance Package on Funding CERCLA State
Enforcement Actions at NPL Sites" (April 7,1988).
OSWER Directive 9831.3, "EPA-State Relationship in Enforcement Actions for Sites on
the NPL" (October 2,1984).
OSWER Directive 9831.9, "Questions and Answers About the State Role in Remedy
Selection at Non-Fund Financed State-Lead Enforcement Sites" (April 18,1991).
FMD, "State Superfund Financial Management and Recordkeeping Document" (August,
1987).
Manual OSWER Directive 9355.2-1, Superfund State-lead Remedial Project Management Hand-
book (December 1986).
OSWER Directive 9200.3-01B, SCAP Manual (updated annually).
Contacts Office of Waste Programs Enforcement, CERCLA Enforcement Division, Guidance and
Evaluation Branch, FTS 703-603-8940.
Office of Emergency and Remedial Response, Hazardous Site Control Division, State and
Local Coordination Branch, FTS 703-603-8840.
Slate Enf0rcefoenl-^13
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XV. RECORDS
MANAGEMENT
-------
Chapter XV
Records Management
Section I. Description of Activity 1
Introduction 1
Section II. Procedures and Interactions 2
A. Site Files 2
Remedial Site Files 2
File Content and Structure 2
Collection of Field Data 2
File Management Process 2
Removal Site Files 2
File Content and Structure 3
Site File Kit 3
Collection of Field Data 3
File Management Process .....3
B. Administrative Record Files ...3
File Content and Structure 3
EPA Roles 4
Involvement of Other Parties 5
Public Participation 5
Remedial Actions 6
Removal Actions 6
Excluded and Privileged Information 7
Post-Decision Information 7
Compendium 8
Models 8
Certification 8
C. Cost Documentation File 8
File Content and Structure 8
File Management Process 9
D. Storage and Maintenance of the Records 9
File Maintenance 9
Disposition of Inactive Records 9
Vital Records 9
Records Management-i
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Section III. Planning and Reporting Requirements 10
A. Setting Priorities 10
B. Planning 10
C. Budget 10
Section IV. Potential Problems/Resolutions 11
A. Space 11
B. Transporting the Record to the Site 11
C. ORC and RPM Involvement 11
Section V. References 12
Policy 12
Guidance 12
Manuals 12
Contacts 12
Training 13
ii-Records Management
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Chapter XV
Records Management
Section I. Description of Activity
Introduction Records Management is critical to the success of the Superfund enforcement program.
Due to the involvement of numerous Federal and State agencies, contractors, RPMs,
OSCs, and PRPs at a site over a potentially extended time period, good file organization is
necessary to document the site activities. Within Superfund, there are three primary areas
of file management: the site file; the Administrative Record file for selection of each
response action; the cost documentation file.
The site file contains all acquired site-specific information.
The Administrative Record file is a subset of the site file. As mandated by section 113(k)
of CERCLA, the Administrative Record for selection of the response action contains all
the documents that form the basis for the decision to select a CERCLA response action
and acts as a vehicle for public participation in the selection of the response action. Proper
compilation and maintenance of the Administrative Record file is crucial because under
section 113(j) of CERCLA, judicial review of issues concerning the adequacy of any
response action is limited to the information contained in the Administrative Record. In-
depth information on compiling the Administrative Record for selection of response
actions is contained in OSWER Directive 9833.3A-1 "Final Guidance on Administrative
Records for Selection of CERCLA Response Actions" (December 3,1990). Note that
there may be other Administrative Records to support other decisions taken by the
Agency, e.g., a Deletion Administrative Record.
The cost documentation file consists of Headquarters and Regional documentation of
expenditures and is required to recover Fund expenditures under section 107 of CERCLA.
Records Management-}
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Section II. Procedures and Interactions
Sitfi FilfiS The site file consists of all information generated or received for a site. There are two kinds
of site files:
* Remedial site files - which consist of all acquired information for a remedial action
* Removal site files - which consist of all acquired information for a removal action.
This section discusses aspects of both kinds of site files, including their content and
structure, the collection of field data, and file management responsibilities.
There is no one way to organize files; this chapter gives recommendations and refers to
model file structures that are available. Regions may want to add their own file structure
to this handbook.
Remedial Site Files
The RPM is responsible for developing and maintaining accurate and complete files of the
activities pertaining to the site.
File Content and Structure
The remedial site file should contain all documents acquired during the remedial response.
The document inventory and filing system may be based on serial identification numbered
documents or other coding systems. These systems may be manual or automated. A
suggested file structure with sample contents is illustrated in Exhibit XV-1.
Collection of Field Data
Site-specific data quality objectives will govern the data management methods used, and
the site's Quality Assurance Project Plan/Field Sampling Plan (QAPP/FSP) will identify
both field and analytic data to be acquired and the standard operation procedures to be
used. A data security system must be implemented to safeguard the chain of custody
records and document control for field data. Refer to OSWER Directive 9355.07A, "Data
Quality Objectives for Remedial Response Activities" (March 1987) for more specific
guidance.
File Management Process
The RPM must complete the appropriate forms and reports and file them according to the
Regional file structure. Files must be distributed to the Regional office from the site on a
regular basis and as soon as possible to assess their applicability to response selection, to
determine if the documents should be copied and/or stored in the Region, and to submit
financial documents for processing. Documents that are selected to be part of the Admin-
istrative Record should be copied from the site file and maintained in a separate Adminis-
trative Record file. CERCLA requires that the Administrative Record file be available to
the public at or near the facility at issue. The site file, however, is generally not available
for public review because it contains draft documentation and privileged materials.
Removal Site Files
Removal site file management has typically been the responsibility of the OSC, with
assistance from other EPA Regional staff, Technical Assistance Team (TAT) contractors,
and the U.S. Coast Guard Strike Team. Each Region must clearly assign responsibility for
each of the file management functions.
2-Records Management
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Exhibit XV-1(1)
Remedial Model File Structure
Congressional
Inquiries
Transcripts
Testimony
Published Hearing Records
Preliminary
Investigation
Documents
Initial Investigation
Preliminary Assessment
Site Inspection
Hazard Ranking System
Scoring Package
Remedial Planning
Documents
Work Plans for RI/FS
RI/FS Reports
Health and Safety Plan
QA/QC Plan
ROD and ROD Responsiveness
Summary
Remedial
Implementation
Remedial Design Reports
Permits
Contractor Work Plans
Progress Reports
COE Agreements, Reports
State
Coordination
Cooperative Agreement
SMOA
State Quarterly Report
Status of State Assurances
lAGs
Community
Relations
Interviews
Community Relations Plan
Meeting Summaries
Transcripts
Responsiveness Summary
Correspondence
-------
Exhibit XV-1 (2)
7.
Imagery (Maps, Photographs, etc.)
a
Remedial
Enforcement
Planning
Status Reports
Administrative Orders
Cross Reference to Confidential
Enforcement Files
Notice Letters
S104(e) Letters
Remedial
Enforcement
Implementation
Consent Decrees
RD/RA Status Reports
Cross Reference to Confidential
Enforcement Files
10.
Contracts
Site-specific Contracts
Procurement Packages
Contract Status
Notifications
List of Contractors
11.
Financial
Documents
Cross Reference to Other
Financial Files
Contractor Cost Report
Audit Reports
TES Reports
TAT Reports
-------
File Content and Structure
Removal site files include documentation of all aspects of the removal: operational, legal,
financial, community relations, and technical. Each Region should have a site file struc-
ture that can be used consistently at each site. All file structures used by the Regions
should include the same minimum set of information. See Exhibit XV-2 for an example of
a model file structure and component documents.
S/fe File Kit The site file kit contains the items necessary to support the structured collection and
storage of information at the site. Kit materials include file boxes, file folders, blank
forms, time sheets, office supplies, and, if available, a personal computer. The Regional
office distributes kits to OSCs, who may delegate acquisition of additional supplies to
Regional administrative support personnel or the TAT. The site file kit should be trans-
ferred to the site upon project initiation. For short-term actions, the site file should be kept
with the OSC. For long-term actions, the site file should remain in the command post.
Collection of Field Data
Data-gathering activities, based on site work plans or field sampling plans, are docu-
mented daily in the field logs. Guidance for quality assurance of field samples may be
contained in the QA/QC Project Plans for the removal site. A data security system must
be implemented to safeguard chain of custody records and document control procedures
for field data.
File Management Process
Similar to RPM responsibilities for the remedial site file, the OSC must complete the
appropriate forms and reports (such as Action Memoranda, work reports, and time sheets)
in a timely fashion and file them according to the Regional file structure. Files must be
distributed to the Regional office from the site on a regular basis and as quickly as possible
to assess their applicability to the response selection, to determine if the documents should
be copied and/or stored in the Region, and to submit financial documents for processing.
Documents that are part of the Administrative Record should be copied from the site file
and maintained in a separate Administrative Record file. The site file, unlike the Adminis-
trative Record file, need not be available for public review. The following section offers
guidance on documents to be included in the Administrative Record.
B. Administrative
Record Files
The Administrative Record contains the documents that form the basis for the selection of
CERCLA response actions. Section 113(k)(l) of CERCLA requires that the Agency
establish Administrative Records for the selection of CERCLA response actions. Section
113(k)(2) of CERCLA requires that the public have the opportunity to participate in the
development of the Administrative Record. This section discusses the major requirements
for the Administrative Record with regard to content and non-EPA involvement and some
specific requirements for different types of Superfund actions. Although the terms
"administrative record file" and "administrative record" often are used interchangeably,
the "administrative record file" refers to the collection of documents before a decision
document is signed. After the decision document is signed, the file becomes the "adminis-
trative record."
File Content and Structure
The record should consist of the documents considered or relied upon in the selection of a
CERCLA response action, whether the documents support or oppose the Agency's
selected action. Voluminous documents may be referenced in the Administrative Record
file and made available to the public upon request. Documents in the Administrative
Records Monagemenl-3
-------
Record file should include relevant writings, graphs, charts, photographs, and data compi-
lations, but the file does not include physical samples. Documents should be compiled as
they are generated or received and made available at or near the site when the Remedial
Investigation is begun. See Exhibit XV-3 for a sample file structure and list of documents
that, if considered or relied upon for the selection of response at a site, must be included in
the Administrative Record file. The list is not exhaustive. The record file should contain
any information on which the response action was based. Documents generated or re-
ceived for a site, but not relevant to the response selection process, should not be included
in the Administrative Record file.
EPA Roles The OSC, RPM, enforcement staff, ORC, Community Relations Coordinator, and the
Administrative Record Coordinator are all involved in establishing Administrative Record
files. The Administrative Record Coordinator has the duty of ensuring the adequate
compilation and maintenance of the record files but is not responsible for deciding which
documents to include in the record files. Those decisions should be made by the OSC or
RPM in consultation with the ORC. The following chart identifies recommended roles for
Administrative Record development.
Tasks
Recommended Roles for Administrative Record Development
Contractor
RPM/
OSC RC ARC CRC
Develop compilation
schedule & procedures
Develop maintenance
& update procedures
Coordinate efforts to
obtain necessary documents
Technical/legal review
of documents & index
Screen
privileged documents
Check adequacy
& completeness of AR
Organize & photocopy
documents
Site repository arrangements
Issue public notices
«
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
When there is a question about including certain documents in the Administrative Record
file, such documents can be segregated and reviewed by the RPM and the ORC at 3- or 4-
month intervals (this should be done more often for removals). At critical times, such as
prior to the public comment period, the issues regarding these documents should be
resolved and, if appropriate, the documents included in the record file.
Each separate response action at a site (operable unit, interim action, or removal action)
should be supported by an Administrative Record file. Guidance does allow information
relevant to one response decision to be referenced in AR files for other/subsequent re-
sponse decisions. The record file must be available to the public at or near the facility at
4-Records Management
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Exhibit XV-2
Removals Model File Structure
1.
Operational
Documents
Legal
Documents
POLREPs
Action Memos
Action Memo Amendments
Site Safety Plans
Work Plans
Progress Reports
Access Agreements
Financial
Documents
Daily Work Reports
Delivery Orders
1900-55S
Travel Vouchers
Time Sheets
Contract Invoices
Personnel/Equipment
Logs
Public Relations
Documents
Technical
Documents
Records of Communication
Community Relations Plan
Correspondence
.
Media
Articles
Sampling and
Analysis Data
Investigations
Waste Profile
Maps and
Photographs
-------
Exhibit XV-3(1)
Administrative Record Model File Structure
1.
Site
Identification
Removal
Response
Remedial
Investigation
Background
Site Inspection
Preliminary Assessment
Site Investigation
Previous OU Information
Sampling and Analysis Plan
Data (possibly located elsewhere but
incorporated by reference)/Chain of
Custody Forms
Engineering Evaluation/Cost Analysis
(EE/CA) Approval Memorandum
(for non-time-critical actions)
EE/CA
Action Memorandum & Amendments
Sampling and Analysis Plan
Data (possibly located elsewhere but
incorporated by reference)/Chain
of Custody Forms
Work Plan
Rl Reports
Feasibility
Study
ARAR Determinations
FS Reports
Proposed Plan
Supplements and Revisions to the
Proposed Plan
Record of
Decision
ROD
Amendments to ROD
Explanation of Significant
Differences
State
Coordination
Cooperative Agreements/
SMOAs
State Certification
of ARARs
-------
Exhibit XV-3(2)
7.
Enforcement
Documents
a
Health
Assessments
Enforcement History
Endangerment Assessments/Risk
Assessments
Administrative Orders
Consent Decrees
Affidavits
Documentation of Technical Discussions
with PRPs
Notice Letters and Responses
ATSDR Health Assessments
Toxicological Profiles
Natural Resources
Trustees
Notices Issued
Findings of Fact
Reports
10.
Public
Participation
Comments/Responses
Community Relations Plan
Public Notices
Public Meeting Transcripts
Fact Sheets & Press Releases
Responsiveness Summary
Late comments
11.
Technical Sources
Guidance Documents
EPA HQ Guidance
EPA Regional Guidance
State Guidance
Technical Sources
-------
issue. Public participation in the process is discussed later in this chapter and in more
detail in Chapter XIII, Community Relations.
Involvement Of Other Parties The Administrative Record file for a Federal-lead site should reflect any state involvement
in the selection of a response action. For guidance on documentation of state involvement
in the response selection, see OSWER Directive 9833.3A-l, "Final Guidance on Adminis-
trative Records for Selection of CERCLA Response Actions" (December 3,1990).
Where a state has been officially designated as the "lead agency," the state must compile
and maintain the Administrative Record file in accordance with section 113(k) of
CERCLA. The state must transmit copies of key documents to the EPA Regional office.
At a minimum, the state as lead agency must transmit a copy of the index, the RI/FS work
plan, the RI/FS released for public comment, the proposed plan, and any public comments
received on the RI/FS and the proposed plan. For purposes of oversight, the state should
also send a copy of any risk assessment, final draft RI and final draft FS to the appropriate
EPA Regional office. Agreements pertaining to the state's role and responsibilities
regarding the Administrative Record should be incorporated into the Superfund Memoran-
dum of Agreement (SMOA) or Cooperative Agreement (CA). The record file compiled
by the state should reflect EPA's participation, comments, concurrence, and any disagree-
ments at the same stages as are required for state involvement in a Federal-lead site.
For Federal facilities, the lead agency has responsibility for compiling an Administrative
Record file in accordance with section 113(k). At NPL sites and any other site where EPA
is involved in selecting a response action at a Federal facility, the Federal agency must
transmit key documents to the EPA Regional office. At a minimum, the Federal agency
must transmit a copy of the index, the RI/FS work plan, the RI/FS released for public
comment, the proposed plan, and any public comments received on the RI/FS and pro-
posed plan. For purposes of oversight, the Federal agency also should send a copy of any
risk assessment, final draft RI and final draft FS to EPA. Inter-Agency Agreements (IAG)
should spell out procedures for compiling and maintaining the record file.
Public Participation Section 113(k) of CERCLA specifies that the Administrative Record "shall be made
available to the public." In satisfying this provision, the Agency must comply with all
relevant public participation procedures outlined in sections 113(k) and 117 of CERCLA.
The NCP contains additional guidance. See also EPA/540/R-92/009, Community Rela-
tions in Superfund: A Handbook (January 1992) and OSWER Directive 9836.0-1 A,
"Community Relations During Enforcement Activities," (November 1991).
In general, the Administrative Record should document any opportunity for public in-
volvement in the selection of a response action. All documents related to the opportunity
for public involvement (e.g., notices and fact sheets) and relevant written comments
received from the public should be included in the record file to establish a complete
record for purposes of judicial review.
The record file also should contain information brought to the Agency's attention by the
public. Reports, data and other information generated by outside parties and submitted to
the Agency should be included in the record file.
The Agency should request that substantive oral comments (either in person or over the
phone) be put in writing by the commentor for inclusion in the record file. The
commentor should be advised that the obligation to supply the comment in writing rests
with the commentor. The Agency may choose to record oral comments that it will want to
rely on.
The Agency may respond to comments received prior to a public comment period in
various ways, depending on the nature and relevance of a particular comment. The
Agency's consideration of such a comment may be in the form of a written response, or
reflected by documented actions taken after receiving the comment, or even by changes in
Records Management-5
-------
subsequent versions of documents. If the Agency responds to a comment, the response
should be included in the record file.
The Agency may notify commentors that comments submitted prior to a formal public
comment period must be resubmitted or specifically identified during the public comment
period in order to receive formal response by the Agency. Alternatively, the Agency may
notify a commentor that the Agency will respond to the comment in a responsiveness
summary prepared at a later date.
Significant comments received during a formal public comment period must be addressed
in a responsiveness summary (included with the ROD in remedial response actions). The
responses may be combined by subject or other category in the record file. It should be
noted that one response can be prepared to multiple comments of the same nature in order
to be most efficient. Comments should be included in the record file in their original form
whenever feasible. For further information, consult OSWER Directive 9355.3-02, "In-
terim Final Guidance on Preparing Superfund Decision Documents: The Proposed Plan
and the Record of Decision, Explanation of Significant Differences, and the ROD Amend-
ment" (June 1989).
In all cases, the Agency should publish a notice of availability of the record file when the
record file is first made available for public inspection in the vicinity of the site at issue.
The notice should explain the purpose of the record file, its location and availability, and
how the public may participate in its development. The notice should be published in a
major local newspaper of general circulation in the area of the site at issue and distributed
to persons on the community relations mailing list. This notice should also be sent to all
known PRPs if they are not already included on the community relations mailing list.
The availability of the record file will vary depending upon the nature of the response
action. Different procedures are outlined below for remedial and removal response
actions.
Remedial Actions Section 113(k)(2)(B) of CERCLA outlines the requirements and procedures for public
participation in the Administrative Record file for remedial actions. The Agency's policy,
as outlined in the NCP, is that the Administrative Record file for a remedial action must be
established at the Regional office and made available for public inspection at a location at
or near the site when the remedial investigation begins.
Removal Actions Section 113(k)(2)(A) of CERCLA requires that EPA develop appropriate procedures for
participation of interested parties in the development of an Administrative Record for a
removal action. These requirements also are discussed in Chapter II, Removals.
Emergency removal actions initiated within hours and lasting less than 30 days
The Administrative Record file must be made available to the public no later than 60 days
after initiation of removal activity at the site. The record file must be maintained in the
Regional office, but need not be made available at or near the site. Public comment on the
Administrative Record file should be held when appropriate.
Other time-critical removals, including emergency removals lasting more than 30 days
The Administrative Record file must be made available to the public no later than 60 days
after the initiation of removal activity at the site. The record file must be established at the
Regional office and made available for public inspection at or near the site at issue. Public
comment on the Administrative Record file should be held when appropriate. In general, a
public comment period will be considered appropriate if cleanup activity has not been
6-Records Management
-------
completed at the time the record file is made available to the public and if public com-
ments might have an impact on future action at the site. A responsiveness summary on the
significant comments received must be prepared and included in the record file following
the public comment period.
Non-time-critical removals
The Administrative Record file must be available for public inspection when the engineer-
ing evaluation/cost analysis (EE/CA) is made available for public comment. The Admin-
istrative Record file must be available at a central Regional location and at or near the site.
A public comment period of at least 30 days must be initiated. The notice of public
comment period may be combined with the notice of availability of the record file if they
occur at the same time. The Agency must respond to all significant comments received
during the public comment period and place the comments and the responses to them in
the record file.
Excluded and Privil6QGd Documents should be excluded from the Administrative Record if they contain informa-
Information t*on mat 's not considered or relied upon during the Agency's selection of a response
action. Examples of such documents may include contractor work assignments, cost
documentation information, and PRP liability. Information relevant to the selection of the
response action that is generated or received after a decision document is signed should be
kept in a post-decision file and may be added to the record file in certain limited situations.
Some documents in the Administrative Record file may be protected from public disclo-
sure on the basis of an applicable privilege. The RPM/OSC and ORC share responsibility
for deciding which documents are privileged. Types of privilege include: deliberative
process, confidential business information, attorney work product, attorney-client commu-
nication, personal privacy, and state secrets. Any privileged information that was consid-
ered or relied on to make the response action decision must be placed in a confidential
portion of the record file. A short description of the information in the privileged docu-
ment should be inserted in the portion of the record file available to the public and in-
cluded in the index. In situations involving attorney-client privilege and deliberative
process privilege, ORC should be consulted for proper procedure.
Post-Decision Information After a decision document is signed, information generated or received by the Agency
should be placed in a post-decision document file, which is separate from the Administra-
tive Record file. Post-decision documents may be added to the record file in limited
situations:
* If the decision document does not address or if it reserves a significant aspect of the
response action decision to be made at a later date. In such cases, the Agency should
continue to add documents to the record file that form the basis for the unaddressed
portion of the decision.
+ If there is a significant change in the remedy selected in the decision document. These
changes may be addressed in an explanation of significant differences
* If the submitted documents contain changes that fundamentally alter the basis of the
overall response action. Such changes will require an amended decision document
* If the submitted documents contain significant information, not contained elsewhere
in the file, that could not have been submitted during the public comment period and
substantially support the need to significantly alter the response action.
Post-decision information may also be added to the record file if the Agency holds public
comment periods after the selection of the response action. The Agency may hold addi-
tional public comment periods or extend the time for submission of public comment on
Records Management—7
-------
any issue concerning response selection. All significant comments submitted during such
comment periods, along with any public notices of the comment period, transcripts of
public meetings, and Agency responses to the comments, should be placed in the record
file.
Compendium OSWER Directive 9833.4, "Compendium of CERCLA Response Selection Guidance
Documents" (May 1989) is a collection of guidance documents that are frequently used in
the selection of a CERCLA response action. Not all of the documents listed will be used
for the selection of remedy process at every site. The index of the record file must indicate
which documents were used for that particular site as well as identify where those guid-
ance documents may be obtained.
Models Models of the Administrative Record file structure, index, certification, and notice of
public availability are available as guidance for their preparation. See the documents listed
at the end of this chapter.
Certification When a selected remedy becomes the subject of litigation, and the record is filed in court,
the Agency must certify that the Administrative Record is complete. Such certification
should be signed by the Regional Administrator's designee after consultation with ORC.
Any certification of the record should be made by program staff and not legal staff.
In addition, the Region may choose to have the Administrative Record Coordinator certify
that the record was compiled and maintained in accordance with applicable Agency
regulations and guidance, although this second certification is not required.
COSt Cost documentation is a cooperative effort among the RPM, OSC, other case team mem-
n/\/»nmAnt
-------
Travel (HQ and Regions)
Contracts by Contractor
Interagency Agreements by Agency (lAGs)
State Cooperative Agreement or State Contract
National Enforcement Investigation Center Documents
Environmental Photographic Interpretation Center Documents
Miscellaneous Procurement Expenses.
File Management Process
The Cost Recovery Coordinator, in coordination with the Regional Financial Management
Office, coordinates the collection, assembly, and summarization of Regional cost docu-
ments. It is the RPM/OSC's responsibility to ensure that the Cost Recovery Coordinator
gets all documents related to contractor work on-site.
For more information on documenting costs and activities, see Chapter XII, Cost
Recovery.
D. Storage and
Maintenance of the
Records
The Superfund Records Management Officer in the Region has the responsibility for
maintaining and storing the site files and the Administrative Record files. In most Re-
gions, there is an Administrative Records Coordinator who takes responsibility for those
files. The responsibilities and those who handle them differ from Region to Region.
There is currently an initiative through OWPE and the OSWER-Information Management
(IM) staff to establish records management systems for site files in all Regions. Evalua-
tion of current Regional file management format for potential integration with Administra-
tive Record needs should be considered.
File Maintenance
File maintenance includes a file maintenance plan, development of charge-out procedures,
and documentation of file use. For guidance on file maintenance procedures and efficient
filing procedures, refer to EPA/IMSD 91-020, Draft Model Regional Records Manage-
ment Operating Procedures Manual (November 1991) and OSWER-IM, "Procedures for
the Transfer of Contract Laboratory Program (CLP) Files for Storage in the Federal
Records Center (FRC)," (August 1992). hi addition, many regions have developed
regional records management manuals.
Disposition of Inactive Records
Most Superfund Records are designated as permanent records and are not subject to
destruction. Inactive Records may be transferred to a Federal Records Center in accor-
dance with EPA records control schedules. For general guidance on record disposition,
refer to EPA/IMSD 91-020, Draft Model Regional Records Management Operating
Procedures Manual (November 1991). Guidance on disposition of Agency records is
being developed by OSWER-IM and OIRM.
Vital Records Vital records are those records deemed crucial to EPA's operation. The vital records
program is designed to protect EPA's vital records in case of disaster or emergency.
OSWER Information Management staff in Headquarters has established a Superfund
Document Management Workgroup to address, as one of its tasks, the issue of which
Superfund documents fall into this category of vital records. For general guidance on
policies and procedures, refer to Chapter 4 of OIRM 2160, Records Management Manual
(1986).
Records Monagemenl-9
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Section III. Planning and Reporting Requirements
A. Setting Priorities Regions must set priorities for the order in which they plan to organize site files and
compile Administrative Records and cost documentation files. Regions should make a
concentrated effort to implement the requirements of the proposed regulations with regard
to removal and remedial Administrative Records and cost documentation files compilation.
B.
Planning Records management plans for site files, cost documentation files, and Administrative
Record files are Region-specific and depend on the state of the Region's record system and
the methodology employed.
c.
Budget Funding for organizing site files is provided from a lump-sum records management budget
managed by the Superfund enforcement support section. A standard budget for NPL site
file organization ranges from $5,000 for a small site to $20,000 for a large, complex site.
Most Regions will have sites which range in size and complexity and will have to balance
their budgets accordingly.
Funding for Administrative Record compilation can be obtained through REM, TES, TAT,
or 8(a) contracts. The standard budget for RI/FS (REM), removals (TAT), or PRP over-
sight (TES) is from $5,000 for a small site to $20,000 for a large and complex site.
10-Records Management
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Section IV. Potential Problems/Resolutions
A. Space Lack of space for Administrative Record compilation, public access, and records storage
are common records management problems in the Regions. Also, the large volume of site
files can make it difficult to select and obtain documents for the Administrative Record
due to lack of file organization. By organizing site files into a central data bank, Regions
are able to establish an adequate base for compilation of the Administrative Record.
Due to lack of space, increased record retrieval requirements, tracking needs, and storage
limitations, some Regions are moving toward electronic imaging technology and micro-
fiche/microfilm. OSWER-IM is currently developing a Superfund Document Manage-
ment System (SDMS) to assist regions in imaging, organizing, and retrieving site file
documents.
B. TranSDOrtinQ the Some Regions have experienced difficulty in identifying locations for the record at or near
D H t »h C't ^e s''e' contactingme facilities, and transmitting the records to the site. Regions have
neCOrQ 10 uie Olie found that working closely with their community relations coordinators can be helpful in
identifying facilities, and, in some cases, transporting the records.
C. ORC and RPM
Involvement
Regions have experienced difficulty in obtaining adequate and timely participation by the
ORC and RPM/OSC in the Administrative Record due to their heavy workloads. Further-
more, the ORC and RPM/OSC perceptions may vary as to what they believe should be
included in the Administrative Record file. Several Regions have found training to be
helpful and that early joint involvement by the RPM/OSC and ORC in record compilation
can facilitate the process.
Records Management-11
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Section V. References
Policy 40 CFR Pan 300 National Oil and Hazardous Substances Contingency Plan, (March 8,
1990).
Guidance OSWER Directive 9360.2-01, "Model Program for Removal Site File Management" (July
1988).
OSWER Directive 9833.3A-1, "Final Guidance on Administrative Records for Selection
of CERCLA Response Actions" (December 3,1990).
OSWER Directive 9836.0-1 A, "Community Relations During Enforcement Activities and
Development of the Administrative Record" (November 3,1988).
OSWER Directive 9355.3-02, "Interim Final Guidance on Preparing Superfund Decision
Documents" (July 1989).
OSWER Directive 9832.1, "Cost Recovery Actions Under CERCLA" (August 1983).
OSWER Directive 9355.0-7A, "Data Quality Objectives for Remedial Response Activi-
ties" (March 1987).
OSWER-IM, "Procedures for the Transfer of Contract Laboratory Program (CLP) Files for
Storage in the Federal Records Center (FRC)" (August 1992).
Manuals 0SWER Directive 9355.0-14, The Compendium of Superfund Field Operations Methods
(December 1987).
OSWER Directive 9833.4, Compendium of CERCLA Response Selection Guidance
Documents (May 1989).
OSWER Directive 9230.0-3B, Community Relations in Superfund: A Handbook (March
1988).
OSWER Directive 9240.0-01, The User's Guide to the Contract Laboratory Program
(1986).
OSWER Directive 9832.0-1 A, "Procedures for Documenting Costs in CERCLA section
107 Actions" (January 30,1985).
EPA/IMSD-91-020, Draft Model Regional Records Management Operating Procedures
Manual (November 1991).
Office of Information Management 2160, Records Management Manual (January 1986).
The National Enforcement Investigation Center Policies and Procedures Manual (1981).
Region 1 Guidance, "Region 1 Records Center Operations Manual."
Region 9 Site File Guidance, "Reference Manual for Superfund Staff."
Contacts OWPE« CERCLA Enforcement Division, Guidance and Evaluation Branch, 703-603-8940.
OWPE, CERCLA Enforcement Division, Cost Recovery Branch, 703-603-8920.
OSWER, Information Management Staff, 202-260-7951.
OIRM, Information Management and Services Division, National Records Management
Program, 202-260-5911.
12-Records Management
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OSWER Information Management staff are developing programs for CERCLA Records
Management:
* Superfund Document Management System (SDMS) is an initiative to develop and
pilot a network-compatible electronic imaging system to help store, manage, and
retrieve Superfund site file documents.
* Revision of the records retirement/disposition schedules for Superfund site files, ARs,
cost recovery documentation, enforcement, and compliance documentation, etc.
* Coordination with OWPE/CED/Contracts and OERR/HSCD to develop guidance for
what to do with contractor-held records at delivery order/work assignment close-out.
For additional information, contact OSWER-IM staff, 202-260-7951.
Administrative Record
OWPE periodically provides training workshops on the Administrative Record. For more
information, contact CERCLA Enforcement Division, Guidance and Evaluation Branch,
703-603-8940.
CERCLA Cost Documentation
OWPE and the Office of the Comptroller are available to provide training in overall cost
recovery procedures and use of the Superfund Cost Organization and Recovery Enhance-
ment System (SCORES). Contact CERCLA Enforcement Division, Cost Recovery
Branch, 703-603-8920.
Records Management-13
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XVI. CASE BUDGET/
CONTRACTS
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Chapter XVI
Case Budget/Contracts
Section I. Description of Activity 1
Introduction 1
Section II. Procedures and Interactions 3
A. Case Budget Process 3
Budget Development 3
Resource Allocation 3
Pricing Factors 3
Negotiating Changes 4
B. Delegations of Responsibility 4
C. Purpose and Scope of Contracts 4
D. Work Assignment Manager Responsibilities 4
Pre-lssuance Period 4
Post-Issuance Period 5
Administrative Responsibilities 5
Technical Responsibilities 5
Work Assignment Close-out 6
Restrictions on the WAM 6
Section III. Planning and Reporting Requirements 7
A. Relationship to SCAP 7
B. Obligating Documents 7
C. Effective Dates 7
D. Non-Site-Specific Funds 8
E. Contractual Issues 8
Section IV. Potential Problems/Resolutions 9
A. Estimating Costs 9
B. Scope of Work (SOW) 9
C. Conflicts of Interest 9
D. Inherently Governmental Functions 10
E. Poor Quality Contractor Work 10
Case BudgetlContracis-i
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Section V. References 11
Regulations 11
Policies 11
Guidance 11
Manuals 11
Memoranda 11
Training 11
Contacts 11
ii-Case Budget/Contracts
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Chapter XVI
Case Budget/Contracts
Section I. Description of Activity
Introduction ^s cnaPter discusses the procedures and mechanisms by which RPMs plan and use
EPA's extramural resources for Superfund enforcement program support. These resources
are referred to as the enforcement Case Budget. The Case Budget includes the funds for
most work performed by contractors, other Federal agencies under Inter-Agency Agree-
ments (lAGs), and States under State Cooperative Agreements (CAs). This chapter
describes how Case Budget funds are planned, allocated, and distributed, as well as the
requirements an RPM must follow in obtaining and managing these resources. It is
important for RPMs to understand the contract management process because the
Superfund program relies on contractors for technical input and support. RPMs must be
familiar with contract management procedures to ensure that the contractor and other
extramural resources are used effectively. RPMs also must be familiar with the Case
Budget planning process so that they can ensure the necessary funds are available when
needed.
Extramural Case Budget resources support a wide variety of Regional and Headquarters
enforcement activities. The five general categories that the Case Budget funds are:
identification of PRP(s); negotiations; PRP oversight through the RI/FS; litigation; and
program implementation. The process used for planning Case Budget funds is integrated
with the SCAP, budget distribution, and Advice of Allowance (AOA) processes. Informa-
tion on Regional Case Budget requests is stored in the CERCLA Information System
(CERCLIS/WasteLAN), which is used to allocate available extramural funds among the
Regions and to track approved Case Budget Technical Enforcement Support (TES) work
assignment tasking and non-TES obligations. In addition, OWPE has developed the
Technical Enforcement Support Work Assignment Tracking System (TESWATS), which
provides a method for tracking the status of each work assignment issued under the
Technical Enforcement Support (TES) contracts.
The Case Budget and the response program planning process are closely linked to the
SCAP target-setting process. The largest share of Case Budget funds is tied directly to the
Regions' SCAP targets, based on estimates of the average level of resources required to
support each activity. For some activities, such as RI/FS oversight, resources are allocated
on a quarterly basis, from the time the activity starts until it is completed. Therefore,
resources may be available to support these activities in fiscal years when no SCAP-
targeted activity will occur. In these cases funding is limited to a finite length of time for
budget purposes. For example, RI/FS activities are normally limited to 10 quarters worth
of funding and cost recovery litigation to 12 quarters. Extramural funds are provided for
on-going quarters during the fiscal year. Requests for these activities should, therefore, be
limited to the amount needed during the FY that is being planned.
Identification of the budget source when planning enables each program to develop an
annual extramural budget and facilitates the AOA process. The six budget sources for
extramural resources that correspond to the program elements are: Enforcement, Reme-
dial, Removal, Headquarters Remedial, Headquarters Removal, and Federal Facilities.
Use of these budget sources for support of any specific activity is dictated by one or more
of the following: Congressional appropriations authority; Office of Management and
Budget (OMB) directives; EPA Office of Comptroller guidance; and Office of Solid
Waste and Emergency Response (OSWER) administrative policy and guidance. Thus,
oversight of PRP-conducted RD/RA activities is funded through the Regional Remedial
Case Budget/Contracts- 1
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extramural budget by OSWER administrative policy. Refer to Chapter XVII, SCAP/
STARS Cycle, for a more detailed description of the SCAP process.
Exhibit XVI-1 shows the iterative process that takes place between Headquarters and the
Regions, whereby the Case Budget is determined according to Regional needs, national
priorities, and funding needs. Exhibit XVI-1 reflects both Regional and Headquarters
responsibilities with respect to Case Budget planning and obligations.
CERCLIS/WasteLAN is the system used by the Regions and Headquarters to communi-
cate during the Case Budget process. The Regions are responsible for entering data on
planned activity dates, funding requirements, and contract vehicles into CERCLIS/
WasteLAN during the SCAP target-setting negotiations. Headquarters uses planning data
and negotiated targets to allocate the Region's Case Budget funds.
The primary contract vehicles for enforcement support are the TES contracts. The purpose
of these contracts is to assist EPA in PRP oversight, community relations, case support,
negotiations with responsible parties, and referrals to DOJ. The TES V through XII
contracts are available for Regional use. The TES XIII contract supports Headquarters
program activities.
A Long Term Contracting Strategy (LTCS) has been developed to replace the current TES
V+ contracts with Enforcement Support Services Contracts in FY 1994. Enforcement
Support Services Contracts are small, regionally based contracts designed to provide
specialized services such as PRP searches and litigation and negotiation support.
Additional contracts available for enforcement support include the Alternative Remedial
Contracts Strategy (ARCS) contracts and 8(a) firms. Regardless of the contract vehicle
that is used, RPMs generally act as Work Assignment Managers (WAMs) for specific
projects that affect their sites. This role includes both administrative and technical respon-
sibilities. WAMs must develop the scope of work and independent cost estimate for the
project, review the work plan, track project progress, and close out the assignment upon its
completion. They also must provide technical guidance to the contractor, ensure that the
contractor's work meets the Agency's standards for quality, review monthly costs, and
evaluate performance.
2-Case Budget/Contracts
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Exhibit XVI-1
Case Budget Data Flow
REGIONAL
RESPONSIBILITIES
HQ
RESPONSIBILITIES
MID-YEAR SCAP NEGOTIATIONS
Plan Scap Activities, Identify
Preliminary Targeted and
Non-targeted Funding Needs for
Next Fiscal Year.
Review Regional
Requests, Apply
Pricing Factors,
to Baseline
Targets to
Calculate
Preliminary Allocations to
Regions, Possible
Adjustments to
Dollars and/or Contract
Mechanism
Mid-Year Scap Negotiations'
Conference with Regions
to Discuss Requests
(Ongoing)
Notification to Regions of
Preliminary Case Budget Allocation
Update Case Budget Needs To
Prepare For August Negotiations/
Submit Mega Site Plans
Determination on
Supplemental Request
August Scap Negotiations
August Scap Negotiations
Revise Requests in Accordance
with Scap Negotiations for Next
Fiscal Year
Notification to
Regions of Final Case Budget
Allocation
Direct Entry of Non-TES
Obligations
(CAs,IAGs,PRs)
Review Regional Obligations,
Tasking and Revised Plans in
Accordance with Guidance and
Changing Program Priorities.
Direct Entry of
TES Obligations
Approve Regional Mega-Site
Requests
(April)
Direct Entry of
TES Tasking
Adjust Case Budget Plans
Based on Budget Execution
(At Least Quarterly)
Determine Mega-Site Needs
* For FY93, Preliminary SCAP negotiations (Scheduled for February) were canceled.
-------
Section II. Procedures and Interactions
This section discusses the specific procedures that the Regions and Headquarters follow in
implementing the Case Budget process and managing enforcement work assignments. It
begins with a brief discussion of the budget development and allocation processes and
focuses on the RPM's role in contract management.
A.
Case Budget
Process
The EPA budget process has two major components that are closely linked. The first,
which is used to determine the total level of resources available to the Agency for the
Superfund program, is the budget development process. The second component focuses
on allocating the total available resources among the Regions.
Budget Development
The amount of extramural funds that are available nationally is determined by the Federal
government's budget development process. This process involves a planning cycle in
which each agency, including EPA, submits its estimated resource needs to Congress at
the beginning of each calendar year. The estimated resource need is based on Regional
planning data in CERCLIS/WasteLAN. Congress reviews the Agency's requests and,
shortly before the beginning of the fiscal year, determines the appropriate funding level.
The budget becomes effective once the President signs the appropriations bill.
Resource Allocation
Once the total level of available extramural resources has been determined, those funds are
allocated to the regions based on need and program priorities. Resources are allocated
from Headquarters to the Regional offices for the removal, remedial, and enforcement
programs, each of which has a separate Advice of Allowance (AOA). Case Budget funds
are formally distributed to the Regions through the quarterly AOA process. AOA distribu-
tions are based primarily on average pricing factors and the targets and measures for
SCAP activities, as listed in CERCLIS/WasteLAN. Funding is provided for enforcement
activities that are not themselves SCAP targets or measures. These activities include
Administrative Records compilation and program management needs. A change in
allocating resources was implemented in FY 92 and is based on each Region's perfor-
mance in obligating/tasking its current year approved enforcement funds. A case budget
review is conducted at mid-year at which time each Region is expected to have a 60%
utilization rate in obligating/tasking of its first and second quarter AOA. Any Region not
achieving the 60% utilization rate may risk losing its third and fourth quarter AOA. These
funds may then be redistributed to another Region that has demonstrated a need for
additional funds.
Pr'lCinq Factors Headquarters and Regional program managers have developed pricing factors for the
major enforcement activities. These pricing factors are national average estimates for the
extramural cost of each major enforcement activity. They are intended to guide the
Regions in estimating their resource needs for the current and upcoming fiscal years.
Adjustments to these factors, as applied to individual sites, may be made within the
Region. Enforcement Mega-sites exhibit one or both of the following characteristics: 1)
sites which are extremely large in spacial extent and with unusually large numbers of
responsible parties (sometimes in the thousands) and; 2) sites that cost significantly more
than the average pricing factor. Regions receive Mega-site resources by submitting annual
Enforcement Mega-site plans that detail current site status and outline enforcement
resources that are needed in the upcoming year. Mega-sites are principally in Regions I,
VII, VIII and IX. Currently, pricing factors do not exist for Mega-site activities. All
activities must be paid for out of the region's approved budget. In FY 94, OSWER plans
to revise and update the workload budget model; this will impact pricing factors.
Case Budget/Contrac.ts-3
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Negotiating Changes If a Region identifies a significant change in the resources that will be required to support
its enforcement activities, it can negotiate to change its Case Budget allocation. While
there are rarely any additional funds available on a nationwide basis, shifts between
Regions are negotiated among the Regions and Headquarters at the mid-year and prior to
the fourth quarter. Each Region has an opportunity to present its needs and Headquarters
decides which AOAs to change based upon national priorities, performance, and any
unanticipated site problems or activities.
B. Delegations of
Responsibility
In FY89, the Regions began playing a significant role in both the financial and contractual
management of the enforcement program. In the area of financial management, the
Regions are responsible for obligating all funds. This includes mechanisms such as TES
V+, State Cooperative Agreements (CAs), ARCS, 8(a) contracts, small purchases, and site-
specific contracts. The Regions are also responsible for ensuring that the total funds
obligated do not exceed the Region's AOA for non-TES and TES V+ funds. Additional
information on financial management is available in the OSWER SCAP Manual.
Contractually, the Regions are responsible for reviewing and recommending payment of
each invoice and voucher submitted under contracts and other vehicles for which they have
financial management responsibilities. For all TES contracts, Project Officer approval
authority for work assignments and invoices has been delegated to the Regional Project
Officers. Under this delegation, the Regions are responsible for WA initiation and track-
ing, performance evaluation, and WA closeout where necessary. In addition, the Regions
must ensure that the necessary SCAP information is complete and available to track each
transaction in TESWATS and CERCLIS/WasteLAN.
C. Purpose and
Scope of Contracts
EPA has contracts with TES contractors to assist the Agency in carrying out its enforce-
ment activities. The TES contracts are multi-year level-of-effort (LOE) contracts and, as
such, allow specific tasks to be assigned to the contractors on an as-needed basis, within
the restrictions of the overall contract statement of work. Hours are assigned to a project
based upon EPA's estimate of the level of effort required to complete the project. In
addition, the Regions have access to other contract vehicles that may be used to support
enforcement activities. These include: ARCS, 8(a) contracts, small purchases, and site-
specific contracts. Each of these is discussed in Exhibit XVI-2. lAGs also may be used to
support Regional enforcement activities. OWPE currently has an IAG with DOJ for legal
representation to EPA for the Superfund Enforcement Program. Regions may initiate
lAGs with the U.S. Army Corps of Engineers, the U.S. Geological Survey, and the U.S.
Fish and Wildlife Service. A detailed discussion of the use of State Cooperative Agree-
ments can be found in Chapter XIV, State Enforcement.
WAM
In manv mstances, the RPM will act as the Work Assignment Manager (WAM) on work
assignments at sites that are his/her responsibility. This section describes the administra-
^ve md technical responsibilities of the EPA WAM prior to issuance of a work assignment
under an EPA contract and throughout the period of performance of the project.
Pre-lssuance Period
Before the work assignment is issued, the WAM is responsible for defining and preparing
the Scope of Work (SOW), and ensuring that the approach to accomplishing the project is
within the contract's statement of work. This includes a review of the potential
contractor's staffing to see that the level of personnel is sufficient to perform the work and
a determination of the adequacy and reasonableness of the level and allocation of resources
for various tasks under the WA.
Additionally, the WAM is responsible for identifying the applicable appropriation for the
WA, the period of performance, project schedule and milestones, travel requirements, and
4-Case Budget/Contracts
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any government property or equipment needed to successfully complete the assignment.
Once the WAM has assembled this information, the WA should be discussed with the
Section Chief for a determination of the project's priority.
Prior to the issuance of a WA estimated to exceed $25,000, an Independent Government
Estimate (IGE) must be developed by the WAM. It must be developed independently
without input from the contractor receiving the work assignment. The IGE is used as a
tool in negotiating the work plan budget with the contractor and for documenting the
resulting agreements in the contract file. The IGE demonstrates that the government is
prepared to negotiate realistic costs for work to be performed.
Post-Issuance Period The WAM's post-issuance responsibilities can be divided into two broad categories:
administrative and technical. Both are critical to the effective use of EPA's contractor
resources.
Administrative Responsibilities The WAM's administrative responsibilities include developing a Statement of Work
(SOW), schedule, independent government estimate, and work assignment form, and
reviewing and approving both the cost and technical aspects of the contractor's work plan.
In addition, the WAM has monthly responsibilities that include reviewing and approving
or disapproving contractor vouchers, and reviewing progress reports to identify any
potential problems. If problems are identified, the WAM should contact the Regional
Project Officer (RPO) and discuss possible solutions. Additional post-issuance responsi-
bilities include: providing any information on WA status required by contract managers;
preparing technical direction memoranda and changes to level of effort; and assisting in
the closeout of the work assignment once all work is completed. In addition, an important
administrative responsibility of the WAM is to provide periodic information on the
contractor's performance to be used in the performance evaluation process that determines
the contractor's award fee. The WAM is required to prepare a Performance Evaluation
Report (PER) on a periodic basis (usually a trimester) defined by the Performance Evalua-
tion Board for the TES contract being used. The WAM may be asked to assist in develop-
ing performance evaluation summary reports for the RPO.
Technical Responsibilities In addition to the WAM's administrative responsibilities, he/she acts as the principal
technical contact between the Agency and the contractor. In this role the WAM must
ensure that the contractor has all necessary guidance and policy materials to ensure proper
completion of the project, monitor and oversee all contractor work to verify that required
quality standards are met, provide technical direction where necessary, and review and
approve or reject all project deliverables. The WAM is ultimately responsible for the
quality of the contractor's work.
The WAM's technical management of the WA is critical to the success of the project. The
WAM should meet regularly with the contractor to monitor progress on the work assign-
ment. These meetings may be weekly, monthly, or bi-monthly, depending on the level of
activity on the assignment. At these meetings, the WAM should review the monthly status
report that describes the progress made since the previous meeting, any problems that have
been encountered, any changes in approach that are anticipated by the contractor, and the
next activity that the contractor expects to perform. In addition to regular meetings, the
WAM should review drafts of major deliverables to ensure that the product meets contract
and Agency standards. Where on-site work is involved, the WAM should go with the
contractor to the site on a periodic basis to monitor the work that is performed.
In addition to these general management responsibilities, the following are examples of the
types of WAM involvement that may be required for two different types of enforcement
assignments.
Cose BudgetlControc.ts-5
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PRP Search:
* Identify existing materials that may contain relevant information on PRP identities
* Arrange access to information in EPA and State files
* Provide the contractor with information about the technical conditions at the site
* Review the draft PRP Search Report to identify any additional data that may be missing
* Ensure proper management review of the PRP Search Report
* Work with the contractor to identify additional tasks that will be needed to fill gaps in
the data
* Review drafts of the interim final report to ensure completeness and accuracy.
RI/FS Oversight:
* Provide the contractor with complete records of the technical conditions at the site
* Provide the contractor with all settlement agreements and PRP work schedules
* Use a compliance monitoring system to identify key points to check if PRPs are in
compliance with administrative or judicial orders
* Work with the contractor to determine the necessary level of on-site presence during
sampling events
* Review the contractor's analysis of the PRP's technical performance.
Work Assignment ClOSe-OUt Upon completion of the work assignment, the contractor will submit a final report summa-
rizing the total costs for the project and the nature of the work that was done. The WAM is
responsible for verifying that the WA has been completed fully and satisfactorily and for
preparing the necessary close out WA and performance evaluation report. If budgeted, a
meeting may be held between the WAM and the contractor to review the project's perfor-
mance and completion.
Restrictions On the WAM During the course of directing a work assignment, the EPA WAM shall not:
* Make changes or issue orders that will affect the terms and conditions of the contract
(only the Contract Officer has such authority)
* Give technical direction that will increase costs and level of effort or change the
technical approach of the project
» Authorize services or work to begin before issuance of the work assignment
* Direct or request the contractor to perform services that create an employee/employer
conflict of interest (COI)
* Direct the contractor to perform work outside the scope of the work assignment
* Direct the placement of a subcontract.
The WAM may:
» Oversee the progress of the contract
* Issue technical direction which is consistent with the statement of work and does not
require an increase in estimated cost or fee or a time extension
* Amend the work assignment if there is an increase or decrease in the level of effort,
a significant change in the budget, or modifications to the scope of work. Work
assignment amendments must be approved by the Project Officer and the Contract
Officer before the changes take effect.
In summary, the WAM should not direct the contractor to do anything that might bind the
government to pay for additional goods or services not anticipated in the current work plan
for the WA.
6-Case Budget/Contracts
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Section III. Planning and Reporting Requirements
The CERCLIS/WasteLAN database has been designed to accommodate data describing
site-specific and non-site-specific planned and actual obligations and TES tasked amounts.
It is the primary mechanism for tracking the planning and utilization of Case Budget
funds. Although the Integrated Financial Management System (IFMS) is the official
Agency system for tracking obligations, commitment, and expenditures of Agency funds,
these data are periodically down-loaded into CERCLIS/WasteLAN from IFMS. Within
CERCLIS/WasteLAN, the site-specific planned obligations will be entered directly into
the appropriate Event or Enforcement Activity record for the site. Non-site-specific
planned obligations are entered by the Regions into CERHELP, the non-site-specific
portion of CERCLIS/WasteLAN.
TESWATS is intended to facilitate management of the large volume of work assignments
under the TES contracts. This system, maintained by both Headquarters and Regional
staff, contains information about the financial status of each active TES WA. Regional
staff are responsible for entering the WA information into TESWATS. Headquarters staff
enters data concerning when a work assignment is approved by the contracting officer.
The RPM should be aware that the information on the work assignment forms, used to
initiate and amend TES work assignments, is also entered into TESWATS and
WasteLAN.
A. Relationship to
SCAP
As discussed previously, the Case Budget planning process is directly related to the SCAP
target-setting negotiations that take place in February and August of each fiscal year. (In
FY 93 preliminary negotiations scheduled for February were cancelled.) RPMs must
actively participate in that process to ensure that sufficient funds are available to support
each planned and on-going enforcement action. The SCAP process is described in detail
in Chapter XVII, SCAP/STARS Cycle.
In addition to participating in the SCAP process, the Regions are responsible for entering
key data on extramural obligations and tasking into CERCLIS/WasteLAN. These data
should be entered by the 5th working day of each month. The Regions are responsible for
verifying that the information in IFMS, TESWATS, and CERCLIS/WasteLAN is consis-
tent.
B.
Obligating
Documents
To assist in the allocation and tracking process, the following information must appear on
all Regionally-prepared obligating documents: EPA ID number, site spill ID number,
operable unit number, CERCLIS/WasteLAN Event or Activity code, work assignment
number, and dollars obligated or tasked. For TES work assignments, TESWATS captures
this information, and the contracting officer will be unable to approve requests that do not
include this information. The proper account information also must appear on each
transaction in order for the commitment or obligation to be official.
Effective Dates
A Cooperative Agreement is considered obligated when it is signed by the Regional
Administrator; an IAG is considered obligated when it is signed by the other agency;
contracts are considered obligated when the Contract Officer signs the obligating docu-
ment (e.g., for TES, the obligating document is the work assignment, for 8(a) firms, the
obligating document is the contract).
Case Budget/Contracis-7
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D. Non-SitG-SOGCif 1C Non-site-specific plans should indicate total dollars requested for an activity that the
Funtfo Regi°n is unable or does not wish to indicate site-specifically. Non-site-specific records
should also indicate the number of sites at which an activity is expected to occur, as well as
the contract mechanism. Headquarters requires this information for the Regional Case
Budget allocation.
F_. Contractual Preparation of a funding document is the primary step in the process of committing and
i__ _ obligating funds made available through the Superfund program's AOA. The funding
document specifies the commitment date, the amount, and the funding vehicles, including
contracts, Cooperative Agreements, and lAGs. The Integrated Financial Management
System establishes the official obligation date and other pertinent data when the transac-
tion is entered into IFMS. These documents must be used whenever Superfund AOA
funds will be used.
The SCAP Manual is the definitive statement of policy and procedures on the handling of
SCAP-related information. Therefore, RPMs should refer to the most recent version of
that manual for current information on financial reporting requirements.
8-Case Budget/Contracts
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Section IV. Potential Problems/Resolutions
This section presents some of the problems that may be encountered by an RPM partici-
pating in the Case Budget process or managing enforcement contracts.
A. Estimating Costs
Due to environmental differences throughout the Regions, costs and LOE estimates for
similar projects, such as RI/FS oversight, may vary dramatically. Therefore, it is impor-
tant to make estimates based on the activities to be completed in the particular Region, and
not on national averages. RPMs should consult with others who have done similar work
under similar conditions to more accurately estimate the likely costs of any given project.
However, because resources are allocated based on average pricing factors, if one project
in a Region will cost more than the average, the Region should be prepared to identify
another project that will require fewer resources than allocated in the average pricing
factor.
From a national planning perspective, the issue of keeping pricing factors comparable with
"real world" costs has always been an area of concern for the Federal government. There-
fore, it is imperative that those who contribute to the pricing factor development process
be kept abreast of the latest estimates of site clean-up activity costs.
B. Scope of Work
(SOW)
When the RPM develops a SOW for a work assignment, it is important to clearly define
the process and products that are required. The SOW will act as the contractor's guide to
performing the assignment, and the more direction that is provided, the better the final
product will be. Where unusual site conditions or the unavailability of critical data will
affect the project approach, the RPM should clearly identify these circumstances in the
SOW and allow for alternative approaches.
To the extent possible, the SOW should set forth a detailed approach to the project and
should include an outline of the deliverables that are expected. In addition, a time sched-
ule for the deliverables should be presented that includes periods for RPM review of draft
deliverables and that reasonably reflects the time constraints on the RPM. The SOW also
should identify any applicable guidance, such as the PRP Search Manual, that may assist
the contractor in performing the assignment.
c.
Conflicts of
Interest
There are two areas in which conflicts of interest may be raised as an issue of concern to
the WAM. The first is the WAM's personal conduct. The second area of concern is the
contractor's organizational or personnel conflicts that could pose problems with perfor-
mance of the work assignment.
In regard to personal conduct, the WAM must be familiar with the U.S. EPA Guidance on
Ethics and Conflicts of Interest document of February 1984, Executive Order 12674 of
April 12,1989, "Principles of Ethical Conduct for Government Officers and Employees,"
as well as similar provisions outlined in Chapter 5 of the U.S. EPA Project Officers'
Handbook, Second Edition, dated April 1984. Based on this information, the WAM must
avoid any actual, apparent, or potential conflict in the work assignment and the contract.
The WAM will not participate knowingly in the contract where a conflict of interest could
arise and will immediately report to the Project Officer any circumstance that could raise
this issue. Basically, a conflict of interest arises when the WAM has financial or personal
interest in the regulated community.
Organizational COI refers to work that the contractors or their subcontractors have
performed at private and public sector sites that may impair their objectivity in doing work
assigned through the contract. To alleviate organizational COI, the contractor must submit
Case Budget/Contracts-9
-------
a statement within 5 days of receiving each WA certifying that a potential organizational
COI does not exist, or if it does, it has been reported to the CO.
Personnel COI is defined as a relationship of an individual with an entity (either through a
current financial relationship, prior or current work relationship, etc.) that may impair the
individual's objectivity in performing contract work.
For every work assignment that the contractor accepts, a statement must be made by the
contractor verifying that all potential COIs, whether organizational or personnel, have been
reported to the Contracting Officer. If the contractor determines that work on an assign-
ment would create an actual COI, the contractor immediately notifies the contractor of the
conflict to enable the CO to determine if work should stop. The contractor should not
automatically stop work, because certain situations allow for work to continue.
D.
Inherently
Governmental
Functions
WAMs should ensure that the contractor is performing only appropriate tasks. The
contractor should never perform work which is inherently governmental. OMB Circular
A-76 describes inherently governmental activities as those "being so intimately related to
the public interest as to mandate performance only by Federal employees." Examples of
such activities include reviewing vouchers and invoices for the purposes of determining
whether cost, hours, and work performed are reasonable; a contractor representing him/
herself as an EPA employee; and preparing responses to Freedom of Information Act
requests (other than routine non-judgmental responses). For further information on
inherently governmental activities, see EPA Order 1900.2, "Contracting at EPA" (October
1990) and the memorandum from the administrator, "Contracting at EPA" (April 1990).
E. Poor Quality
Contractor Work
WAMs are responsible for ensuring that contractors maintain a high standard of quality on
their work. To assist in this, the WAM needs to outline specifically in the SOW what
services are to be provided, the time frames involved, and the reporting requirements.
Also, strict Quality Assurance/Quality Control (QA/QC) procedures should be applied to
each phase of a work assignment, rather than at the end of the assignment only. However,
if poor-quality work is consistently delivered by a particular contractor to the Agency after
these measures have been taken, the most effective way to eliminate this problem is to
issue a stop-work-order, after consultation with the Project Officer and Regional manage-
ment. Stop-work-orders can only be issued by the Contract Officer. Poor contractor
performance can be addressed by scheduling meetings with the contractor to state the
Agency's concerns in this respect, and if necessary, elevating the issue to the contractor's
and Agency's upper management. Another avenue available to improve contractor
performance is to note poor performance in a performance evaluation report which is then
reviewed by the Performance Evaluation Board. Poor performance can thus be reflected in
the award fee provided to the contractor during this periodic review.
Extensions of a period of performance and expansions of a work assignment budget should
be accomplished only through an approved work assignment amendment. Verbal instruc-
tions to the contractor, in this regard, by the RPO or WAM are never acceptable. By
providing verbal instructions, a WAM could so mislead a contractor that the government
would be bound to pay the contractor's costs for services rendered on a theory of quasi-
contract. A quasi-contract is not a contract, but a theory that the government should pay
for rendered services. Case law indicates that the government could hold an employee
liable for costs in such a situation. This position has never been tested in relation to an
EPA employee.
10-Case Budget/Contracts
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Section V. References
Regulations EPA Order 1900.2, "Contracting at EPA" (October 1990).
5 C.F.R. section 2635, "The Standards of Ethical Conduct of Employees of the Executive
Branch" 57 Federal Register 11886-11891, (August 1992).
Executive Order 12674, "Principles of Ethical Conduct for Government Officers and
Employees" (April 1989).
Policies Office of Administration, Grants Administration Division, "The Interagency Agreements
Policy and Procedures Compendium" (1988).
Guidance "U.S. EPA Guidance on Ethics and Conflicts of Interest" (February 1984).
Manuals OSWER Directive 9871.0, "Roles and Responsibilities of Regional Project Officers and
Work Assignment Managers Under the Technical Enforcement Support (TES) Contracts"
(May 3, 1989).
OSWER Directive 9200.3-01, SCAP Manual (updated annually).
U.S. EPA Project Officer's Handbook, Second Edition (April 1984).
Memoranda From the Administrator, "Contracting at EPA" (April 1990).
Training Required training course for all POs, WAMs, and/or DOOs, "Contract Administration
Training for Project Officers, Work Assignment Managers, and Delivery Order Officers,"
is offered in all Regions by the EPA Institute.
TESWATS Training is also available from OWPE, CERCLA Enforcement Division,
Contracts and Planning Branch. This office, as well as Regional Project Officers, can
provide guidance on preparing work assignments, performance evaluation reviews, cost
verification forms, etc.
Case Budget Training is offered on an as needed basis from the Contracts and Planning
Branch within OWPE's CED.
Contacts Office of Waste Programs Enforcement, CERCLA Enforcement Division, Contracts and
Planning Branch. FTS 703-603-8930.
Case Budget/Contracts-11
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XVII. SCAP/SPMS CYCLE
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Chapter XVII
SCAP/STARS Cycle
Section I. Description of Activity 1
Introduction 1
SCAP 1
Budget 2
FTEs 2
STARS 2
SCAP/STARS Relationship 2
CERCLIS/WasteLAN 3
CERCLIS/WasteLAN Database 3
CERHELP Database 3
Section II. Procedures and Interactions 4
A. The SCAP Process 4
B. ThelMC 4
C. Targets/Measures 4
D. Development of Reporting Measures 4
E. Target Setting , 5
Section III. Planning and Reporting Requirements 6
A. SCAP Planning 6
B. Quarterly Planning Process 6
C. SCAP/STARS Adjustment/Amendments 6
D. STARS Target Adjustments 7
E. Planning Requirements and Procedures 7
F. Accomplishment Reporting 7
G. STARS 8
H. SCAP 8
I. Financial Planning and Management 8
J. Case Budget 8
K. Advice of Allowance 9
AOA Process 9
AOA Change Request Procedures 9
Section IV. Potential Problems/Resolutions 10
A. Data Quality and Planning in CERCLIS/WasteLAN 10
B. Headquarters/Regional Negotiations 10
C. Interpretation of Definitions 10
D. Impact of Schedule Changes on SCAP 10
SCAP/STARS Cycle-i
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Section V. References 11
Manual 11
Contacts ~ 11
Training 11
ii-SCAPlSTARS Cycle
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Chapter XVII
SCAP/STARS Cycle
Section I. Description of Activity
Introduction This chapter provides an overview of the Superfund Comprehensive Accomplishments
Plan (SCAP) process and its relationship to the Agency-wide Strategic Targeted Activities
for Results (STARS). More specific information on the process can be obtained from the
Superfund Program Implementation Manual or SCAP Manual which is updated annually.
RPMs, OSCs and Information Management Coordinators (IMCs) play important roles in
providing timely and accurate site information for entry into the Comprehensive Environ-
mental Response, Compensation, and Liability Information System (CERCLIS/
WasteLAN)—the database from which SCAP reports are generated. SCAP and STARS
reports help plan, budget, track and evaluate Superfund program progress. The schedules
and time frames presented in this chapter are for fiscal year 1993 and are subject to
change. IMCs will be informed of any changes that occur.
The SCAP process is used by the Superfund program to plan, budget, track and evaluate
progress toward Superfund site cleanups. The SCAP process generates data that fulfills
the following functions:
* Establishing program priorities for the subject fiscal year
* Tracking of accomplishments against those priorities
* Providing information used in allocating resources (intramural and extramural) to
the Regions
* Updating planning (schedules and funds) for the current fiscal year
* Providing planning data for outyear (e.g., the year after the planned fiscal year)
budget purposes
* Responding to information requests from various sources including Congress and
the Office of Management and Budget (OMB).
The SCAP planning process is a dynamic effort that has a significant impact on Superfund
resource allocations and program evaluation. Planned obligations for the response budget,
case budget, and STARS targets and measures are generated through SCAP. CERCLIS/
WasteLAN data are the main source of information for the Superfund budget and evalua-
tion process. The SCAP process is managed at Headquarters by the Office of Waste
Programs Enforcement (OWPE), the Office of Emergency and Remedial Response
(OERR), and the Office of Federal Facilities Enforcement (OFFE). STARS is managed by
the Office of Policy, Planning and Evaluation (OPPE).
SCAP The SCAP process is crucial to Superfund program planning, tracking, and evaluation.
SCAP tracks progress at each site and allows Regions and Headquarters to forecast site
and program directions. SCAP targets encompass a wider spectrum of activities than
STARS. This is because SCAP is intended to reflect general program direction as opposed
to STARS, which is intended to reflect fiscal year specific priorities. In some cases, new
SCAP categories are developed; in other cases, the projections for SCAP activities are
adjusted to match the Agency's goals. This is particularly important in a program as
dynamic as Superfund, given that the number of sites in various stages of the process
varies from year to year.
SCAP/STARS Cycle-1
-------
SC AP information is a subset of the site data collected through the CERCLIS/WasteLAN
system. The CERCLIS/WasteLAN system consists of two databases, CERCLIS/
WasteLAN and CERHELP, which are discussed on the following pages.
Budget formulation and distribution is a three year process. Two years prior to the fiscal
year being planned the budget formulation process begins. This process is called the
outyear budget development. During the outyear, project plans and schedules are reviewed
to determine the resources needed to support the Superfund Enforcement Program in the
subject budget year. Resource requirements are based on CERCLIS/WasteLAN data when
available, in association with other assumptions regarding the direction of the program.
For example, the projects planned in CERCLIS/WasteLAN at the start of the third quarter
of FY93 will be used to formulate the initial National FY95 budget.
During the planning year, which is one year prior to the FY being planned, Regional
project planning data are reviewed for changes. Based on these revised CERCLIS/
WasteLAN data, Regional distributions are determined using the OWPE Distribution
Model.
Once the FY begins, Regions receive quarterly allocations to support projects planned in
CERCLIS during the annual SCAP negotiations which occur the August prior to the start
of the FY. The FY is referred to as the operating year.
FTES SCAP forms the basis of the Superfund workload models that distribute FTEs for each
program and Region. There are two Superfund program models, the Site and Spill Re-
sponse Model, which distributes resources for the site assessment, remedial, and removal
programs, and the Technical Enforcement Model, which distributes enforcement FTEs.
The preliminary and final distributions of Regional and program resources for the upcom-
ing fiscal year are based on the planning information contained in CERCLIS/WasteLAN in
the second quarter and the end of August, respectively.
Although these resource models have been frozen for the past several years, they are still
run to determine Regional FTE needs, as compared to frozen FTE levels. Where appropri-
ate, targets are adjusted to narrow the gap between actual resource needs and frozen FTE
levels.
STARS STARS is the Agency-wide system used by the Administrator to set targets for and
monitor the key environmental objectives and strategic planning goals identified in the
Agency's Operating Guidance for each fiscal year. National and Regional STARS goals
for Superfund are established and tracked through SCAP. STARS targets and measures
are reported quarterly by the Regions to Headquarters and OPPE through the STARS data
system. This data is checked and verified against CERCLIS/WasteLAN data by Head-
quarters, hi some Regions, RPMs/OSCs are responsible for entry of this data into
CERCLIS/WasteLAN. OPPE tracks Regional progress toward STARS goals on a quar-
terly basis as part of the overall Agency performance evaluation process.
SCAP/STARS STARS targets and measures are a subset of those contained in SCAP, and STARS
. .. accomplishments are generated through SCAP in CERCLIS/WasteLAN. SCAP and
Relationship STARS planning and reporting cycles are set independently of each other. The STARS
reporting cycle is a quarterly cycle, whereas the SCAP reporting cycle is monthly. Nego-
tiation of SCAP and STARS targets and measures occur in a two-stage process. Prelimi-
nary project targets are set in March; final targets and measures are set in August. The
latter set represent the Region's commitments for the upcoming FY. These negotiations
are the basis for Regional FTE and Case Budget Allocations. At Headquarters, OWPE,
OERR,-and OPPE coordinate SCAP and STARS.
2-SCAPISTARS Cycle
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CERCLIS/WasteLAN T*16 CERCLIS/WasteLAN system consists of two databases: one site-specific database,
CERCLIS/WasteLAN, and a second, CERHELP, which contains both site-specific
information (targets) and non-site-specific information.
SCAP information is a subset of the site data collected through the CERCLIS/WasteLAN
system, thus CERCLIS/WasteLAN tracks the SCAP. Data entry responsibilities and
report retrieval abilities are at the Regional level so that Regional managers and users play
a central role in maintaining and using the database. Headquarters relies on the CERCLIS/
WasteLAN system as the sole repository of information on Superfund plans and accom-
plishments.
CERCLIS/WasteLAN CERCLIS/WasteLAN is a database that is used by Headquarters and Regional personnel
Database ^OT Superfund site, program, and project management. CERCLIS/WasteLAN contains the
official inventory of Superfund sites and supports site planning and tracking functions.
Planning encompasses estimating project schedules as well as projecting financial require-
ments, which are part of the SCAP. hi CERCLIS/WasteLAN, financial data are integrated
with data from the site assessment, remedial, removal, and enforcement programs.
Through CERCLIS/WasteLAN, Regions and Headquarters can see integrated financial
and scheduling data for the site assessment, removal, remedial, and enforcement programs.
The CERCLIS/WasteLAN database contains site, operable unit (OU), event, enforcement
activity, technical, and financial information. Regions are responsible for manually
transferring data from the Agency-wide Integrated Financial Management System (IFMS)
into CERCLIS/WasteLAN. Types of data can include commitments, decommitments,
obligations, deobligations, transaction dates, obligating document numbers, and funding
vehicles budget source. Currently, TES contract work assignment amounts are entered
manually into CERCLIS/WasteLAN on a periodic basis. The source for this information
is the TES Work Assignment Tracking System (TESWATS). OWPE is in the process of
integrating these two systems, Which will eliminate duplication of data entry. The
TESWATS/WasteLAN integration is planned for early FY94.
CERHELP Database CERHELP contains site-specific and non-site-specific information such as SCAP and
STARS targets, accomplishments, Advice of Allowance (AOA), Annual Operating Plans,
budget, and other information on non-site-specific activities. The CERHELP database
consists of the following separate files:
• The Targets and Accomplishments data file is used for setting and tracking SCAP
and STARS targets and measures. Preliminary and final Regional SCAP/STARS
commitments are entered into the system by Headquarters. Target and non-site-
specific accomplishment data are updated to reflect SCAP adjustments or ap-
proved amendments as they occur. Regional reporting of non-site-specific accom-
plishments is also performed through this system. Data from this system are used
in all "official" SCAP targets and accomplishment reports and are the baseline for
Regional evaluation.
* The Budget/AOA file is used by Headquarters for Regional SCAP budget develop-
ment and control and for tracking and reporting the AOA process.
• Planning and tracking of non-site incident activities and financial data are accom-
plished through the Non-Site/Incident Activity system. Regions are responsible
for entering and maintaining SCAP non-site-specific information.
CERHELP gives Regions access to non-site-specific budget information. Regions also
will be able to track planning data and reconcile the site-specific planning in the
CERCLIS/WasteLAN database with the AOA and SCAP/STARS targets in CERHELP. It
serves as an important management tool for Regions and Headquarters.
SCAP/STARS Cycle-3
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Section II. Procedures and Interactions
A.
Th6 SCAP The negotiation cycle is the mechanism by which quarterly and annual targets are estab-
Drnrocc usne^- The SCAP formal negotiating cycle occurs on a semi-annual basis. The negotia-
tion cycle is discussed later in this chapter under Section III, Planning and Reporting
Requirements.
B.
The IMC Tne Regi°na' Information Management Coordinator (IMC) typically is a senior position
that coordinates all Regional CERCLIS/WasteLAN users and serves as the liaison between
the Waste Management Division, ORC, and the Environmental Services Division. The
IMC also serves as the liaison between Headquarters and the Regions in the planning and
financial areas and with information management issues. The IMC holds ultimate respon-
sibility for the data in CERCLIS/WasteLAN and CERHELP. RPMs/OSCs must coordi-
nate fully with the IMC to ensure that accurate and timely information is entered into
CERCLIS/WasteLAN and that the most recent information is included in the SCAP target-
setting and budgeting process.
Targets/
Measures
SCAP and STARS targets are the key devices by which program goals are translated into
quantifiable program achievements. They identify performance expectations for the
Regions. Specific targets are negotiated with the Regions, and Regions commit them-
selves to achieving these goals. SCAP and STARS targets therefore play a central role in
ensuring that program goals are not seen only as a method for allocating resources.
A SCAP or STARS targeted measure (either quarterly or annual) is a pre-determined
numerical goal that is established prior to the fiscal year the designated activities will take
place. Targeted measures-are designed to reflect major steps in the cleanup or enforcement
processes. Examples of SCAP and STARS targeted activities are PRP first RI/FS starts
and section 107 cost recovery referrals/decisions > $200K. Targeted measures quantify
program achievement goals on a Region-specific, and in some cases, site-specific basis.
Regions are evaluated according to their completion of targeted activities.
A SCAP or STARS reporting measure, on the other hand, is not used for program ac-
counting purposes. It is used to track an activity that is important in monitoring overall
program progress. Reporting measures have no associated quantitative goals; only actual
accomplishments are tracked. The SCAP process also uses projection measures. Projec-
tion measures generally result in numerical goals being established prior to the fiscal year.
Projection measures represent each Region's estimate of what the Region will accomplish
during a certain reporting period and are designed to give Headquarters a general idea of
expected program performance. Projection measures play a key role in setting annual
budgets and FTE allocations.
Exhibits XVII-1 and XVII-2 set forth the SCAP and STARS targets and measures for
Fiscal Year 1993.
D. Development of
Reporting Measures
Headquarters program offices take the lead in developing SCAP and STARS targeting and
reporting measures in conjunction with the development of the annual SCAP Manual and
Agency Operating Guidance. Headquarters proposes reporting measures for OSWER in
approximately December, prior to the beginning of the operating year. Regional responses
to the proposed measures are returned to Headquarters in February and March, as part of
the annual Agency Operating Guidance development process. Preliminary negotiations are
based on the draft operating guidance and final negotiations are based on the final operat-
ing guidance. Measures normally are finalized in June, prior to the beginning of the fiscal
year. Development of the draft and final SCAP Manual occurs concurrently with the
development of draft and final Operating Guidance.
4-SCAP/STARS Cycle
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E. Target SGttinQ T"6 process for the development of a fiscal year's SCAP and STARS targets and measures
begins during the second quarter of the previous fiscal year. Preliminary targets and
measures for the upcoming fiscal year are set by mid-March and are used to derive the
preliminary FTE allocations for the coming year. All SCAP targets and measures are
negotiated, and numbers are established only after discussions have been held among
OERR, OWPE, OFFE, and the Regions. Final SCAP and STARS targets are set in the
fourth quarter SCAP, which is finalized in August. Final targets and measures also
involve Headquarters/Regional negotiations. The SCAP Manual contains detailed proce-
dures for target setting.
SCAP and STARS Targets and Projection Measures are negotiated as SCAP targets.
Therefore, STARS targets are also SCAP targets.
Several CERCLIS/WasteLAN reports are used by Headquarters and the Regions in the
development and negotiation of Regional outputs. RPMs should check with their IMC to
obtain these reports.
SCAP/STARS Cycle-S
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Section III. Planning and Reporting Requirements
A. SCAP Planning Regions are required to keep the SCAP data in CERCLIS/WasteLAN and CERHELP up-
to-date and accurate. Changes in planning information (i.e., schedules and funds) should
be entered into CERCLIS/WasteLAN or CERHELP within five days of the RPM becoming
aware of the need for the change. Accomplishments also are to be reported within five
days. RPMs should contact the IMC through their Section Chief as soon as possible
regarding changes in site information that affect the SCAP planning process.
B. Quarterly
Planning Process
Quarterly, Regions should generate SCAP reports for internal review of the planning data
in CERCLIS/WasteLAN and CERHELP. These planning data should reflect any adjust-
ments or approved amendments made to the annual plan. Regions should note that
changes made in CERCLIS/WasteLAN to site schedules and other planning data will not
automatically result in changes to SCAP and STARS targets. Although Regions have the
flexibility to alter plans, they are still accountable for meeting the targets negotiated at the
beginning of the fiscal year.
On the fifth working day of each month, Headquarters extracts the proposed Regional
SCAP update. The Regional reports are circulated to Headquarters program offices for
review, and serve as the basis of Headquarters/Regional negotiations. To ensure consis-
tency in the negotiation phase, a copy of the CERCLIS/WasteLAN and CERHELP
databases are frozen prior to generating the Regional reports. Regions should pull copies
of appropriate reports off the frozen database to verify/reconcile planning and accomplish-
ment data with Headquarters. As a result, all parties (Headquarters and the Regions)
should have identical data for use during the negotiation process. Exhibit XVII-3 summa-
rizes the major activities of the February and August negotiating sessions.
CERCLIS/WasteLAN data quality problems that affect the SCAP update should be
resolved prior to negotiations. The problems should be resolved on a Region-specific basis
through conference telephone calls between Headquarters and the IMC. The IMC will
communicate with the appropriate RPM or Section Chief, as necessary, to resolve data
integrity problems.
c.
SCAP/STARS
Adjustment/
Amendments
After targets have been finalized and planned funding levels developed, the SCAP process
provides the flexibility to modify plans during the year. Modifications to planned targets
are termed either adjustments or amendments. Amendments are SCAP changes that:
+ Decrease an annual SCAP target
* Increase the Region's annual operating budget
* Change the Advice of Allowance
* Change a quarterly or annual STARS target.
Changes to SCAP targets require a formal request from the Regional Branch Chief to
Headquarters, specifically, Chief, Program Development and Budget staff. The SCAP/
STARS target amendment process necessitates a formal request from the Regional Admin-
istrator. In addition, any increases in annual operating plans or quarterly advices of
allowance must be submitted through IFMS, as well as the appropriate program office for
Headquarters approval. Any SCAP changes that do not necessitate a target change are
termed adjustments and do not require Headquarters' approval. An example of a SCAP
adjustment is substituting one site for another that was originally planned for a specific
SCAP or STARS target. Adjustments are incorporated in CERCLIS/WasteLAN by
updating the database and the CERHELP Targets and Accomplishments data file on an on-
going basis. Exhibit XVII-4 sets forth the SCAP amendment process.
6-SCAPfSTARS Cycle
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All amendments should be recorded in the CERCLIS/WasteLAN site-specific database
after OPPE approves the Region's request. Regions should not initiate any obligation
against change requests until confirmation is received from the Office of the Comptroller.
Regions cannot revise the site back-up in the Targets and Accomplishments data file until
the amendment is approved by Headquarters.
D.
STARS Target
Adjustments
Regions may request an adjustment to a STARS target if the change is necessitated by
extenuating circumstances. Changes in STARS targets may be necessary and approved
under the following conditions:
• Major, unforeseen contingencies arise that alter established priorities (i.e., Con-
gressional action)
• Major contingencies arise to alter established Regional commitments (i.e., State
legislative action)
• Measure or definition in system is creating an unanticipated negative impact.
STARS target adjustments must be submitted in writing to the Assistant Administrator,
OSWER (AA, OSWER). The AA, OSWER evaluates the request and makes a recommen-
dation to OPPE whether to concur with the request.
E. Planning
Requirements and
Procedures
The SCAP Manual (OSWER Directive 9-200.3-01D) contains detailed information on
planning requirements and procedures for the various Superfund response and enforce-
ment program activities. RPMs should refer to the manual for specific requirements and
procedures of the SCAP planning process. The SCAP manual sets forth specific planning
requirements and procedures for:
• Preliminary Assessments/Screening Site Inspections
• Listing Site Inspections
• First and Subsequent Starts and Completions
* To Be Determined (TBD) Sites
+ Setting Activity Time Frames
* Project Takeovers
• Remedial Financial Management
• Case Budget Planning
* Removals
* Determining Impact on Funding Status of RP Takeover
* State Enforcement
• Technical Assistance Grants.
RPMs play an integral role in communicating site status information to the IMC. This
information must be timely to ensure accurate planning for future activities. RPMs should
make themselves thoroughly familiar with the planning requirements and procedures set
forth in the SCAP manual.
F. Accomplishment
Reporting
CERCLIS/WasteLAN is the Regional reporting vehicle for SCAP and STARS. If an
activity or event is not properly entered into CERCLIS/WasteLAN, the event will not have
occurred for budget or accountability purposes. It is therefore crucial that information be
entered into CERCLIS/WasteLAN promptly and accurately based on the requirements and
schedules outlined in the SCAP Manual. Accomplishments data are recorded on various
Regional data entry forms and are entered into CERCLIS/WasteLAN and CERHELP by
SCAP/STARS Cycle-7
-------
the IMC, RPM, or designee. A tool to facilitate data entry in decentralized regions, the
Remedial Pipeline Project Management (RP2M), has been developed. It is currently being
piloted in Regions II, III, IV and V. Data on accomplishments should be entered into
CERCLIS/WasteLAN within five days of the event. Therefore, it is important that RPMs
promptly relay relevant site information to the IMC through their Section Chief.
G.
STARS Regions enter accomplishments data into CERCLIS/WasteLAN. Quarterly, Headquarters
extracts accomplishments data from CERCLIS/WasteLAN and manually enters the
information into the PRIME-based STARS system. The data are then reviewed by the
Regions for discrepancies. The Regions then correct the data in CERCLIS/WasteLAN (if
necessary) and enter comments regarding discrepancies. Headquarters and the Regions
then reconcile the discrepancies and Headquarters enters final information into the STARS
system.
H.
SCAP Reg'ons should generate SCAP reports routinely (or more frequently) for internal review.
Regions perform data quality checks and make adjustments to the CERCLIS/WasteLAN
or CERHELP database if the databases do not reflect actual accomplishments. The RPM
must verify that CERCLIS/WasteLAN and CERHELP data are consistent with actual
accomplishments.
On the fifth working day of each month, Headquarters extracts SCAP reports from
CERCLIS/WasteLAN and CERHELP. These reports are reviewed by Headquarters to
evaluate Regional progress toward SCAP targets and accomplishments. Data are submit-
ted to OPPE for reporting STARS accomplishments on a quarterly basis.
Financial
Planning and
Management
The SCAP process is the planning mechanism used by the Superfund program to identify
site assessment, remedial, removal, and enforcement funding needs for the current and
planned fiscal years. The planned obligations included in the fourth quarter SCAP update
in CERCLIS/WasteLAN (July) form the basis of the final Regional budgets for the next
fiscal year. The annual Regional operating plan and the associated budget are a result of
the Headquarters and Regional negotiations on the proposed program budgets. Regions
are required to operate within their final negotiated annual operating budget.
Prior to the fiscal year, each Region is allocated an annual budget for site assessment,
remedial, removal, and enforcement activities. The criteria used to develop the major
portion of the Regional budget are discussed in the SCAP manual.
J.
Case Blldoet Case budget funds are apportioned to the Regions based on the annual targets and mea-
sures and the Region's planning information reflected in the CERCLIS/WasteLAN and
CERHELP site and non-site databases. Each activity has a pricing factor that is used
during the allocation process. These factors are itemized in Exhibit XVII-5. Activities
with a duration of less than one year are fully funded (e.g., negotiations, removal oversight,
long-term response, section 107 Administrative Orders). Activities with a duration
exceeding one year are funded quarterly (e.g., RI/FS, oversight, section 106 and 107
litigation). Other priority activities (Administrative Record and State management assis-
tance) are added to this calculation. Allocations are reviewed and adjusted quarterly based
on changing targets, the number of quarters remaining in the current fiscal year, and
Regional performance in obligating and tasking monies allocated to date. The case budget
is discussed in detail in Chapter XVI, Case Budget/Contracts.
8-SCAP/STARS Cycle
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K.
Advice of
Allowance
The Advice of Allowance (AOA) represents the funds allocated to each Region by the
Office of the Comptroller for each quarter of the fiscal year. The AOA comprises five
accounts:
• Remedial Action (site-specific)
• Remedial Design (non-site-specific)
• Removal (non-site-specific)
• Other Remedial (regular or "O" Allowance)
• Enforcement (case budget).
The Enforcement, or case budget, account is managed by OWPE. The other accounts are
managed by OERR.
AOA Process Normally, the Office of the Comptroller issues the quarterly AOA on the first working day
of each quarter. The AOA is based on the Phase III Operating Plan that identifies pro-
jected obligations for each quarter of the fiscal year. The Phase III Operating Plan for FY
93 is based on the final SCAP plans developed in the fourth quarter of FY 92. Funds
available for obligations, however, are limited to projected needs for the upcoming quarter.
OWPE has a specific process for the Enforcement AOA, which is discussed in Chapter
XVI, Case Budget/Contracts.
AOA Change
Request Procedures
Regions are required to manage the funds issued in the AOA. Headquarters approval is
not required to shift funds between projects within the other remedial, RD, removal or
enforcement portions of the AOA. Any shifts of funds between allowances or any addi-
tion or deletion of funds from any of the allowances requires Headquarters approval
through the SCAP amendment and change request procedures. These procedures are
discussed in detail in the SCAP Manual.
SCAP/STARS Cyc.le-9
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Section IV. Potential Problems/Resolutions
A. Data Quality and
Planning in CERCLIS/
WasteLAN
RPMs play a central role in ensuring CERCLIS/WasteLAN data accuracy. Inaccurate or
missing data may lead to insufficient funding and incorrect accomplishments reporting.
RPMs must communicate all relevant site information through their Section Chief to the
IMC in a timely manner to ensure CERCLIS/WasteLAN data integrity. RPMs also should
review relevant CERCLIS/WasteLAN data regularly for consistency with actual activity.
g_ HeadQUarterS/ ^e SCAP negotiation process involves extensive and detailed communication between
Boninnal Monntiatinne Headquarters and the Regions. During this process, it is important that RPMs coordinate
Regional ixeguiiallUlia Ci0sely with the IMC and other appropriate personnel so that the most current and accurate
information is considered during the negotiation.
C. Interpretation of
Definitions
It is essential that Headquarters and Regional personnel clearly understand the SCAP and
STARS targets and measures definitions. Incorrect interpretations of target and measure
definitions may prevent actual accomplishments from being reported or recognized. RPMs
must communicate with their Section Chief or the IMC regarding the nature of reported
activity to ensure that the appropriate targets and measures are updated. If RPMs or other
staff have questions or are confused by the definitions, it is important to ask the Regional
IMC or Headquarters for clarification.
D. Impact Of Site schedule changes must be analyzed for their impact on SCAP, and the changes entered
Schedule ChanaGS on mto ^e svstem ** soon ^ possible. SCAP will continue to be a viable planning tool only
" if accurate planning information is entered into the system. RPMs must inform the IMC
OUAr promptly of site schedule changes to ensure the effectiveness of the SCAP planning
functions.
10-SCAP/STARS Cycle
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Section V. References
Manila! OSWER Directive 9200.3-OlB, Superfund Comprehensive Accomplishments Plan (SCAP)
Manual (updated annually).
Contacts Office of Waste Programs Enforcement, CERCLA Enforcement Division, Contracts and
Planning Branch, Regional Planning Section. 703-603-8930.
Office of Waste Programs Enforcement, Program Management and Support Office,
Budget Formulation Section, Information Management Section. 202-260-8250.
Office of Emergency and Remedial Response, Office of Program Management, Resources
Management Section, Program Development and Budget Staff. 703-603-8912.
Training "Case Budget Overview," a 1 -day course and "Customized CERCLIS/WasteLAN Report-
ing," a 2-day course are periodically available. For additional information, call
703-603-8930.
SCAP/STARS Cycle-! 1
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GLOSSARY
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Enforcement
Glossary
Site examples are given as references for selected terms. The regions in which the sites
are located are listed in parentheses.
Administrative Order on Consent (AOC): A legal agreement signed by EPA and an
individual, business, or other entity through which the entity agrees to take an action,
refrain from an activity, or pay for certain costs. It describes the actions to be taken, may
be subject to a public comment period, applies to civil actions, and can be enforced in court.
AOCs are most commonly used for removal actions and RI/FSs, however, they may be
used for de minimis and cost recovery settlements.
Administrative Record (AR): The body of documents that "forms the basis" for the selection
of a particular response at a site. For example, the AR for remedy selection includes all
documents that were "considered or relied upon" to select the response action. An AR
must be available at or near every site to permit interested individuals to review the
documents and to allow meaningful public participation in the remedy selection process.
This requirement does not apply to other ARs, such as those for deletion.
Administrative Subpoena: A command issued by EPA requiring testimony and, if
necessary, the production of documents deemed necessary to the administrative investi-
gation of a site. CERCLA section 122(e)(3)(B) authorizes the issuance of administrative
subpoenas as is "necessary and appropriate" to gather information to perform a Non-
binding Preliminary Allocation of Responsibility or "for otherwise implementing CERCLA
section 122." No legal mandate prohibits the use of an administrative subpoena as an
initial information gathering tool, however, the Agency prefers using section 104(e)
requests before issuing administrative subpoenas. [Nyanza, Davis Liquid (1), Peak Oil,
Bay Drum, Zellwood Groundwater Contamination (4)]
Alternative Dispute Resolution (ADR): A process that allows parties to resolve their
disputes without litigating the matter in court. ADR involves the use of neutral third parties
to aid in the resolution of disputes through methods which include arbitration, mediation,
mini-trials, and fact finding. [Spectra Chem, Republic Hose, Greiners Lagoon, Schilling
Landfill, Onalaska Landfill (5)]
Arbitrary and Capricious: Characterization of a decision or action taken by an administra-
tive agency or inferior court meaning willful and unreasonable action without consider-
ation or in disregard of facts or without determining principle. Under CERCLA section
113(j)(2), a court ruling on achallenge to aresponse action decision will apply the arbitrary
and capricious standard of review.
Arbitration: An alternative dispute resolution technique that involves the use of a neutral
third party to hear stipulated issues pursuant to procedures specified by the parties.
Depending upon the agreement of the parties and any legal constraints against entering
into binding arbitration, the decision of the arbitrator may or may not be binding.
Cash-Out: A settlement that requires PRPs to provide up-front financing for a portion of
the response action, rather than performing the work themselves. There are several types
of cash-out settlements. A mixed-funding cash-out settlement requires the settling PRP
to provide a substantial portion of the total response costs whereas a de minimis cash-out
settlement requires a minor portion of the response costs to be paid by the settling PRPs.
[Mixed Funding Cashout: Prices Landfill (2)]
Enforcement Glossary-!
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CERCLA 106(b) Reimbursement Petition: Petition by an entity, who has complied with a
Unilateral Administrative Order, requesting reimbursement from EPA for reasonable
costs plus interest of conducting a response action. A person may be entitled to
reimbursement if the person can establish that he/she is not liable for response costs under
CERCLA section 107(a), or if the person can demonstrate that the Agency's selection of
the response action was arbitrary and capricious or was otherwise not in accordance with
law.
CERCLIS: The abbreviation for the CERCLA Information System; a national information
management system for the CERCLA program. CERCLIS inventories and tracks
releases, accomplishments, expenditures, and planned actions at potential and actual
Superfund sites.
Cleanup Activities: Actions taken to deal with a release or threatened release of a hazardous
substance that could affect humans and/or the environment. The term "cleanup" is
sometimes used interchangeably with the terms remedial action, removal action, response,
or corrective action.
Comment Period: Formal time period provided for the public to review and comment on
a proposed EPA action, rulemaking, or settlement.
Community Relations: EPA's program to inform and encourage public participation in the
Superfund process and to respond to community concerns and incorporate them into the
Agency decision making process.
Community Relations Coordinator (CRC): Lead Agency staff who works to inform the
public about and involve the public in the Superfund process and cleanup actions.
Community Relations Plan (CRP): A document that identifies techniques used by EPA to
communicate effectively with the public during the Superfund cleanup process at a
specific site. This plan describes the site history, the nature and history of community
involvement, and concerns expressed during community interviews. Additionally, the
plan outlines methodologies and timing for continued interaction between the Agency and
the public at the site.
Consent Decree (CD): A legal document, approved by a judge, that formalizes an
agreement reached between EPA and one or more potentially responsible parties (PRPs)
outlining the terms by which the PRP(s) will conduct all or part of a response action; pay
for all or part of a response action; pay past costs; cease or correct actions or processes that
are polluting the environment; or otherwise comply with regulations where the PRPs'
failure to comply caused EPA to initiate regulatory enforcement actions. The CD
describes the actions PRPs will take, is subject to a public comment period prior to its
approval by a judge, and is enforceable as a final judgment by a court.
Contribution: A legal principle by which an entity can seek to recover some of the response
costs for which the entity has already resolved liability with the United States. For
example, when several PRPs are liable for a hazardous substance release, EPA is not
required to pursue all of the PRPs. If EPA settles with or wins its case against a subset of
PRPs, then the right of contribution enables the PRPs (i.e., the settling PRPs or those
against whom a judgment is rendered) to seek recovery of a proportional share from other
PRPs who were not named as defendants in EPA's suit or settlement, but who nonetheless
contributed to the release.
Contribution Protection: A statutory provision which provides that any PRP who resolved
its liability to the U.S. in an administrative or judicially approved settlement is not liable
to other PRPs for claims of contribution regarding matters addressed in the settlement.
2-Enforcemeru Glossary
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Cooperative Agreement (CA): Mechanism used by EPA to provide Fund money to states,
political subdivisions, or Indian tribes to conduct or support the conduct of response
activities. Subpart O of the NCP, 40 CFR Part 35, outlines specific response actions that
may be conducted using CA funds.
Cost Recovery: A process by which the U.S. Government seeks to recover money
previously expended in performing any response action from parties liable under CERCL A
107(a). Recoverable response costs include both direct and indirect costs.
Covenants Not to Sue: A contractual agreement, such as those authorized by CERCL A
section 122(f) and embodied in the Consent Decree or Administrative Order on Consent,
in which the Agency agrees notto sue settling PRPs for matters addressed in the settlement.
EPA's covenant not to sue is given in exchange for the PRP's agreement to perform the
response action or to pay for the cleanup by the Agency, and does not take effect until PRPs
have completed all actions required by the Consent Decree and Administrative Order on
Consent.
Covenants not to sue are generally given in either Consent Decrees or Administrative
Orders. Under CERCLA, the use of covenants not to sue is discretionary. In effect, the
Agency is authorized to agree to such a release for future liability only if the terms of the
covenant include "reopeners."
Declaratory Judgment: A binding adjudication of rights and status of litigants. Within the
context of CERCLA, the U.S. may file a claim seeking declaratory judgment on liability
for past and future response costs at the site. If declaratory judgment on liability is granted,
the U.S. does not have to prove liability in any future action with the defendant.
Demand Letter: A written demand for recovery of costs incurred under CERCLA. The
primary purposes of written demands are to formalize the demand for payment of incurred
costs plus future expenditures, inform potential defendants of the dollar amount of those
costs, and establish that interest begins to accrue on expenditures. A demand letter may
be incorporated into the special notice letter.
De Mlnlmls Contributor: A PRP who is deemed by the settlement agreement to be
responsible for only a minor portion of the response costs at a particular facility. A
determination of a PRP's responsibility is made based on the volume, toxicity, or other
hazardous effects in comparison to other wastes at the facility. CERCLA section
122(g)(l)(A) explicitly defines de minimis contributor.
De Minlmls Landowner: A PRP who is deemed by the settlement agreement to be a past
or present owner of the real property at which the facility is located who did not conduct
or permit the generation, transportation, storage, treatment, or disposal of any hazardous
substance at the facility, did not contribute to the release or threat of release of a hazardous
substance at the facility through any act or omission, and had no actual or constructive
knowledge that the property was used for the generation, transportation, storage, treat-
ment, or disposal of any hazardous substance at the time of purchase. CERCLA section
122(g)(l)(B) explicitly defines de minimis landowner.
De Mlnlmls Settlement: An agreement, either administrative or judicial, authorized by
CERCLA section 122(g), between EPA and PRPs for a minor portion of response costs.
De Novo: Generally, a new hearing or a hearing forthe second time. At a de novo hearing,
the court hears the case as the court of original and not appellate jurisdiction. Under
CERCLA, for example, a judge may hear a case de novo if the Administrative Record is
found to be incomplete or inaccurate. Such ade novo hearing would allow judicial review
that is not limited to the Administrative Record. A potential result of a de novo trial could
be the court selecting the remedy. [Hardage Criner (6)]
Enforcement Glossary-3
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Discovery: A pre-trial procedure that enables parties to learn the relevant facts about the
case. The Federal Rules of Evidence provide for extremely broad discovery. The basic
tools of discovery are depositions, interrogatories, and requests for production of docu-
ments. One of the few limitations on the scope of discovery is that the material sought must
be relevant to the subject matter of the pending suit, or likely to lead to the production of
relevant material.
Easement: A right afforded to an entity to make limited use of another's real property. An
easement is one form of institutional control that may be required at a Superfund site if all
the hazardous substances cannot be removed from the site. Easements may include
limiting access or control of surface activities.
Eminent Domain: The power to take private property for public use. Under the U.S.
Constitution, there must be just compensation paid to the owners of this property. EPA
exercises its power of eminent domain through the process of condemnation.
Enforcement Actions: EPA, state, or local legal actions to obtain compliance with
environmental laws, rules, regulations, or agreements and/or obtain penalties or criminal
sanctions for violations. Enforcement procedures may vary, depending on the specific
requirement of different environmental laws and related regulatory requirements.
Explanation of Significant Difference (ESD): A document regarding a significant change to
the Record of Decision when new information is discovered about a site or difficulties are
encountered during the remedial design/remedial action phase of cleanup. An ESD is
submitted into the Administrative Record to inform the public of any significant changes
that are being made to the selected remedy.
Extraordinary Circumstances: A situation that justifies the deletion of a standard reopener
in a Consent Decree. This release is granted infrequently and is given in response to
unusual conditions related to liability, viability, or a physical circumstance of the site or
the remedial action. [Re-Solve (1), Smuggler Mountain, California Gulch (8)]
Federal Lien: A lien in favor of the U.S. authorized by CERCLA section 107(1) that may
be imposed upon a PRP's property subject to a response action. The lien arises when the
PRP receives written notice of its potential liability for response costs under CERCLA, or
the Agency actually incurs response costs at a particular site. The lien continues until the
PRP's liability is fully satisfied or the claim becomes unenforceable by operation of the
statute of limitations.
Federal Register: A federal government publication that includes proposed regulations,
responses to public comments received regarding proposed regulations, and final regula-
tions.
The Federal Register is published every working day by the Office of Federal Register,
National Archives and Records Administration, Washington, DC 20408. The Federal
Register publishes regulations and legal notices issued by Federal agencies. These include
Presidential proclamations and Executive Orders, Federal agency documents required by
Congress to be published, and other Federal agency documents of public interest. The
Federal Register is available to the public through public libraries that are Federal
Depositories, law libraries and large university libraries.
Force Majeure: A clause common to construction contracts which protects the parties in
the event that a portion of the contract cannot be performed due to causes that are outside
of the parties' control (i.e., problems that could not be avoided by the exercise of due care,
such as an act of God). These causes are known as "force majeure" events. Force majeure
provisions are included in Administrative Orders on Consent and Consent Decrees. These
provisions stipulate that the PRPs shall notify EPA of any event that occurs that may delay
or prevent work and that is due to force majeure.
4-Enforcement Glossary
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Two examples offeree majeure may be raised as defenses to liability. CERCLA section
107(b) releases from liability any person who can establish by a preponderance of the
evidence that the release or threat of release of a hazardous substance was caused solely
by an act of God or an act of war (i.e., force majeure.) There has never been a finding by
the courts that upheld a claim of no liability based upon the force majeure defense.
Full Release: An agreement by EPA to relinquish (release) aPRP from any further liability
for response costs. Under CERCLA section 122(j)(2), Natural Resource Trustees may
grant full releases to liability for damages to natural resources.
Fund (Hazardous Substance Response Trust Fund): A fund set up under CERCLA to help
pay for cleanup of hazardous waste sites and for legal action to force cleanup actions on
those responsible for the sites. The fund is financed primarily with a tax on crude oil and
specified commercially used chemicals.
General Notice Letter (GNL): A notice to inform PRPs of their potential liability for past
and future response costs and the possible future use of CERCLA section 122(e) special
notice procedures and the subsequent moratorium and formal negotiation period.
Generator: Any person who by contract, agreement, or otherwise arranged for disposal or
treatment, or arranged with atransporter fordisposal ortreatment, of hazardous substances
owned or possessed by such person, by any other party or entity, at any facility or
incineration vessel owned or operated by another party or entity and containing such
hazardous substances.
Good Faith Offer (GFO): A written proposal submitted by a PRP to the EPA to perform or
pay for a response action. PRPs are given 60 days from the special notice to provide EPA
a written GFO. The GFO must be specific, consistent with the ROD or proposed plan, and
indicate the PRPs' technical, financial, and management ability to implement the remedy.
Hazard Ranking System (HRS): The principle screening tool used by EPA to evaluate risks
to public health and the environment associated with abandoned or uncontrolled hazard-
ous waste sites. The HRS calculates a score based on the potential of hazardous substances
spreading from the site through the air, surface water, or ground water and on other factors
such as nearby population. This score is the primary factor in deciding if the site should
be on the NPL and, if so, what ranking it should have compared to other sites on the list.
A site must score 28.5 or higher to be placed on the NPL.
Indian Tribe: As defined by CERCLA section 101(36), any Indian tribe, band, nation, or
other organized group or community, including any Alaska Native village but not
including any Alaska Native regional or village corporation, which is recognized as
eligible for the special programs and services provided by the United States to Indians
because of their status as Indians.
Information Repository: Where the administrative record, current information, technical
reports, and reference materials regarding a Superfund site are stored. The EPA or the
State establishes the repository in the community as soon as a site is discovered. Itprovides
the public with easily-accessible information. Repositories are established for all sites
where cleanup activities are expected to last for more than 45 days. Typical community
repository locations include public libraries or municipal offices.
Information Request Letter: Formal written requests for information, authorized by
CERCLA sections 104(e)(2)(A) through (C), issued during an administrative investiga-
tion. EPA is authorized to request information from any person who has or may have
information relevant to any of the following:
* The kind and quantity of materials that have been or are being generated, treated,
disposed of, stored at, or transported to a vessel or facility
Enforcement Glossary~5
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* The nature or extent of a release or threatened release of a hazardous substance,
pollutant, or contaminant at or from a vessel or facility
+ The ability of a person to pay for or perform a cleanup.
Failure to respond or an incomplete response to an informational request are subject to
statutory penalties.
Innocent Landowner: A person who purchased or acquired real property without actual or
constructive knowledge that the property was used for the generation, transportation,
storage, treatment, or disposal of any hazardous substances. PRPs may assert this claim
as part of their defense, however, only the court may make this determination based on
CERCLA sections 107(b) and 101(35).
Joint and Several Liability: A legal doctrine defining the scope of a defendant's liability.
When more than one PRP is involved at a site and the harm is indivisible, the court may
impose joint and several liability upon all parties involved at the site. In this instance, each
PRP involved at the site may be held individually liable for the cost of the entire response
action.
Judicial Review: The court's review of a decision rendered by a Federal agency or
department or a court's review of an appeal challenging either a finding of fact or finding
of law. Under CERCLA, for example, the court provides judicial review prior to entry of
the Consent Decree. Additionally, the court would provide judicial review of an EPA
decision if a PRP submitted a "petition to review" to a Federal court of appeals. The
jurisdiction of the court and the scope of its review is defined by CERCLA section 113(h)
and the Judicial Review Act, 28 U.S.C. sections2341-2351.
Lead Agency: The agency that primarily plans and implements cleanup actions. These
could include EPA, state or political subdivisions, other Federal agencies, or Indian tribes.
Other agencies may be extensively involved in the process, but the lead agency directs and
facilitates activities related to a site, often including enforcement actions.
Mixed Funding: Settlements whereby EPA settles with fewer than all PRPs for less than
100% of the response costs. The settlement must provide asubstantial portion, greaterthan
50%, of the total response costs and there must be viable non-settlors from which
remaining response costs may be pursued. The three types of mixed funding settlements
are preauthorization, cash-out, and mixed work.
Mixed Work: A type of mixed funding settlement whereby EPA and the PRPs agree to
conduct discrete portions of the response action. Often EPA's portion of the work is paid
for or performed by other PRPs as a result of subsequent settlements or unilateral
administrative orders. [Ottati and Goss (1), Love Canal (2), Syntex (7)]
Moratorium: The period of time after Special Notice Letters are issued during which the
Fund will not be used to begin work at the site for the RI/FS or RA. EPA also will not seek
to compel PRP action at the site during the moratorium.
National Oil and Hazardous Substances Pollution Contingency Plan (NCP): The NCP is the
major framework regulation for the federal hazardous substances response program. The
NCP includes procedures and standards for how EPA, other federal agencies, states and
private parties respond under CERCLA to releases or threats of releases of hazardous
substances and under the Clean Water Act section 311, as amended by the Oil Pollution
Act of 1990, to discharges of oil.
Natural Resources: Land, fish, wildlife, air, water, groundwater, drinking water supplies,
and othersuch resources belonging to, managed by, or controlled by the United States, any
State or local government, any foreign government, any Indian tribe, or any member of an
Indian tribe.
6-Enforcement Glossary
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Natural Resources Damages: Damages for injury or loss of natural resources as set forth
in CERCLA sections 107(a) and 11 l(b) and 300.615 of the NCP.
Non-binding Preliminary Allocation of Responsibility (NB AR): An allocation of the total cost
of response among PRPs at afacility. CERCLA section 122(e)(3) allows EPA to provide
NB ARs to PRPs to facilitate settlement. An NEAR is not binding on the United States or
the PRPs and cannot be admitted as evidence in court. [Re-Solve (1), Hassayampa (9)]
Orphan Share: A portion of cleanup costs that cannot be assessed to a PRP as a result of
either the PRP's insolvency or EPA's inability to identify PRP(s).
Owner or Operator: Any person owning or operating a vessel or facility, or in the case of
a hazardous substance being accepted for transportation, the common or contract carrier.
It does not include a unit of State or local government which acquired ownership orcontrol
involuntarily through bankruptcy, tax delinquency, or abandonment.
Performance Bond: A guarantee given by a contractor that the work assignment will be
completed according to its terms and within the agreed upon time frame.
Performance Standards: Provisions in Consent Decrees and Administrative Orders
specifying specific levels of performance that site activities must achieve; often incorpo-
rated by reference to the record of decision. The inclusion of such performance standards
enables the Agency to assure measurable levels of cleanup which provide the protective-
ness desired.
Person: An individual, firm, corporation, association, partnership, joint venture, commer-
cial entity, United States Government, State, municipality, or any interstate body.
Plaintiff: A party who brings a legal action; the party who complains or sues in acivil action
and is so named on the record.
Potentially Responsible Party (PRP): Any individual orentity including owners, operators,
transporters, or generators who may be liable under CERCLA section 107(a).
Preauthorlzatlon: A type of mixed funding settlement whereby EPA preauthorizes a claim
against the Trust Fund by the PRPs for a portion of their costs of conducting a response
action. Once the preauthorization agreement is finalized, the PRPs conduct the response
action, as outlined in the settlement agreement, petition non-settling PRPs for reimburse-
ment, and, if necessary, seek reimbursement from the Fund for the preauthorized amount
not received from non-settling PRPs. [Re-Solve (1), York Oil (2), Army Creek (3), Peak
Oil (4), Motco (6), Colbert (10)]
Premium: A sum paid or agreed to be paid by a PRP to cover risks associated with the
settlement. This sum represents an amount in addition to the cost of the response action.
For example, a premium may be part of an early de minimis settlement due to potential
inaccuracy of total response costs estimates or remedy failure.
Record Of Decision: The official Agency document that explains which remedial cleanup
alternatives have been considered, the selected remedy, technical background relative to
the decision, and how the decision complies with the law.
Recalcitrant: A PRP may be considered recalcitrant for continued disinterest or refusal in
reaching settlement or failure to comply with a settlement or order. This entity may also
be considered a non-settlor.
Recusal: The voluntary or involuntary removal of a government official from any
involvement in a specific matter. Recusals are used to preserve the ethical standards of
public service. A recusal generally occurs when there is an appearance of a conflict
between governmental responsibilities and private interest. Once a person is removed
through a recusal, he/she cannot participate in any activity relating to the matter;
Enforcement Glossary-7
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specifically, he/she cannot see any correspondence or participate in any meeting or
negotiations related to the issue.
Remand: A legal term used when a court sends back a case to either a lower court or an
administrative agency for further action. For example, under CERCLA, if an administra-
tive record is found to be incomplete or inaccurate, one option of the reviewing court would
be to remand the case back to EPA with instructions to compile an accurate and complete
administrative record.
Reopeners: Contractual provisions that preserve the Agency's right to compel the PRPs
to undertake additional response actions or to pay costs for Agency response actions in
addition to those agreed to in the settlement. Reopeners to liability are triggered when
previously unknown conditions at the site are discovered, or information previously
unknown to EPA is received, that indicates the remedial action is not sufficiently
protective. Reopener provisions restrict the covenant not to sue provisions by defining the
conditions under which the settlement may be re-examined.
Settlement: The resolution of a claim. Settlement occurs when the federal and/or state
agency have a written agreement regarding the payment and conduct of specified response
actions. Settlements may be resolved administratively through an Administrative Order
on Consent or judicially through a Consent Decree.
Special Account: A sub-account of the Trustfund where cashout settlement funds may be
deposited to segregate the funds and ensure that they are readily accessible for work at the
site covered by the settlement. [New Bedford (1), Sharon Steel (8)]
Special Master: A court appointed individual who oversees the progress of acomplex case
before it goes to trial. The scope of the special master's authority is set forth in an Order
of Reference. Special masters are appointed only under exceptional conditions. For
example, special masters may be appointed in cases requiring the interpretation of
complicated technical data or voluminous amounts of information.
Special Notice Letter: A written notice to a PRP providing information on potential
liability, conditions of the negotiation moratorium, future response actions, and demand
for past costs. The SNL is authorized under CERCLA section 122(e)(l) and triggers the
start of the negotiation moratorium.
Statute Of Limitations (SOL): The statutory defined period of time within which the United
States, on behalf of EPA, must file aclaim for cost recovery. If the U.S. does not file acase
within the SOL, it might not be able to recover its costs from the PRPs.
Statutory Penalties: Penalties authorized by a statute. For example, under CERCLA, if
PRPs do not comply with an Administrative Order, they may be sued for statutory
penalties of up to $25,000 per day under section 106(b)( 1).
Stipulated Penalties: Fixed sums of money that a defendant agrees to pay for violating the
terms of a settlement. Procedures for invoking and appealing stipulated penalties and
penalty amounts are agreed to in the Administrative Order on Consent or the Consent
Decree.
Strict Liability: Legal responsibility for damages without regard to fault or diligence. The
strict liability concept in CERCLA means that the Federal Government can hold PRPs
liable without regard to a PRP's fault, diligence, negligence, or motive.
Summary Judgment: Finding in a civil case that there is no genuine issue of material fact
and a party thus prevails on the issue.
Takings: The physical occupancy or regulatory intrusion into the uses of property that
essentially precludes all uses of the property. The occupancy or regulatory action need not
8-Enforcement Glossary
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be permanent to be considered a taking. The fifth and fourteenth Amendments to the
Constitution of the United States bar federal and state governments from "taking" private
property without compensation. Under CERCLA, takings issues have been raised in
regard to limitations on property or water use and occupancy of the property by EPA to
conduct response actions. [See Hendler v. United States, 952 F. 2d 1364, Federal Circuit
1991.]
Technical Assistance Grant (TAG): A program that provides grants of up to $50,000 per
Superfund site so citizens can hire independent technical advisors to help them understand
information related to cleaning up a site.
Tolling Agreement: An agreement between EPA and the PRP(s) delaying the statute of
limitations for cost recovery actions. [Schafer Manufacturing, Eau Claire Municipal Well
Field (5), Fairchild Semi-conductor Corp. (9)]
Transporter: Any person who accepts or accepted any hazardous substances for transport
to disposal or treatment facilities, incineration vessels or sites selected by such person,
from which there is a release, or threatened release which causes the incurrence of response
costs, of a hazardous substance.
Treble Damages: Sum at least equal to, and not more than three times, the amount of the
response costs. Under CERCLA section 107(c)(3), if EPA conducts the cleanup as a result
of the PRPs' non-compliance with an Administrative Order, treble damages may be
assessed for a maximum of three times the amount of the response costs at the site.
Damages may be assessed in addition to recovery of response costs at the site. [Parsons
(4)]
Unilateral Administrative Order (UAO): An order issued by EPA, authorized by CERCLA
section 106, requiring the PRP(s) to undertake a response action. There must be imminent
and substantial endangerment to the public health or the environment before such an order
can be issued.
Enforcement Glossary-9
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INDEX
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Index
Access: 11-10;IX-20.
Administrative Order (AO): II-3,6,8,11,12,15-7; V-1,10, Ex. V-4,15,17; VI-1,3,8,17; XII-
20.
Administrative Order on Consent (AOC)/Consent Order: I-2,5,6; Ex. 11-1, Ex. II-4, II-8,9-11,
15,17; V-9,10,12,13,16.-18; VI-2,3,4,15, Ex. VI-2, Ex. VI-3; VIII-1; XIII-5,7.
Administrative Record (For Selection of Remedy): Ex. 11-1, Ex. II-2, Ex. II-4, II-3,10; V-11;
VI-5,23,24-26; VII-2,6-8, Ex. VII-2; VIII-1; XII-2,11; XIII-7,8: XV-1,3,5-9,10.
(For Deletion - Deletion Docket): Ex. XI-1; XV-4.
Administrative Subpoena: I V-16
Advice of Allowance (AOA): X-3; XVI-1,3; XVII-3,6,9.
Alternative Dispute Resolution (ADR) Act: I-3,4; IV-20; XII-8,22.
ARARs: I-3; 11-13; V-7; VI-3, 5,13,21,11,25; Ex. VI-1; VIM, 2,4,6,7; XIV-6.
Arbitration: I-3;XII-1,18, Ex. XII-3.
ATSDR:Vi-4,6,10,20,24,25.
Case Budget: V-15; XIV-9, Ex. XIV-1,10, Ex. XIV-2, Ch. XVI; XVII-7,8.
Cash Out: VIII-15,16;XII-18
CERCLA Settlement Policy: VIII-11.
CERCLIS: 11-14; IV-21; V-15; VI-14; VIM 9; IX-13; XII-9,20; XIV-9, Ex. XIV-1; Ex. XVI-1, XVI-7;
XVII-1,3,10.
Civil Investigator (Cl): II-5,19; IV-5,6,7,14,21. .
Close-Out Report: 11-16; IX-17; XII-9.
Community Relations: 11-12,13; IV-1; VI-5; VIII-8,18; IX-9; Ch XIII.
Community Relations Coordinator: V-11; VI-5,8; Ch. XIII.
Community Relations Plan: Ex. II-2,11-13; VII-12; IX-9; XIII-1,5.
Consent Decree (CD): I-5,6; 11-15,16; V-13,16,17,18; VI-2,3; VIII-7,22; IX-4,10,20,21; X*
2;XII-17;XIII-6;XIV-2,12;Ex.XV-3.
Reopeners: VII-7,8,17; XII-17, Ex. XVII-5.
Covenants not to Sue: VIII-7,8.
lndex-1
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Contracts (TES, ARCS, ERCS, etc.): V-15; VI-15; IX-19, XII-14; XV-2, Ex. XV-1; XVI-1,2.
Contractors: II-5: IV-6,7, 8,21; VI-7; VII-12; IX-2, Ex. IX-1,3,5,10,11; XI1-11; XV-2; XVI-1,
10.
Contribution Protection: II-8,11.
Cooperative Agreement: VII-2; XIV-1,2-5,10, Ex. XIV-2; XV-5; XVI-1,4,7.
Cost Recovery: 1-1,2,6; II-8; IV-1; VIII-6,9; Ch. XII; XIII-7; XV-9.
Case Referral: XII-3,8,15,18.
Documentation: XII-11,13,14, Ex. XII-4.
Covenants Not to Sue: VIII-7,8.
Delegations: lll-4;IV-10;XII-5.
DeMinlmls Settlements: 1-1,2; VIII-1,3,4,16-17; XII-16; XIII-7.
Department of Interior (DOI): VI-4,6.
Department of Justice (DOJ): I-2,3,6,7; 11-12; III-4; IV-13; V-2,3,12,16; VI-15; VII-12; VIII-1,
2,-4; XII-3, 7,11,13,15,17,19; XIII-4,7; XVI-2.
Emergency Response Notification System (ERNS): 11-17, Ex. II-7
Enforcement Discretion: VIII-8,20.
Endangerment Assessment: VI-10,24; IX-12,20.
Risk Assessment: 11-1,2; VI-2,10,11,24; VII-2,16; VIII-20; Ex. XV-3.
Five-Year Review: IX-3.
General Notice Letter (GNL): IV-1,16, Ex. IV-1; 17-18; V-1.
Good Faith Offer (GFO): V-1, Ex. V-1,11,13; VI-8, Ex. VI-2.
Hazard Ranking System (MRS): III-5.
Information Request Letter (104(e) Letters): 11-10,11, Ex. IV-1,19.
Inherently Governmental Function: XVI-10.
Innocent Landowner Defense: IV-3,6; XII-6.
Inter-Agency Agreement (IAG): VI-15,16; IX-14,19; XII-13; XV-5; XVI-7.
Liability: I-2; Ex. II-4,11-19; IV-1,2,3,6; XII-1,5,6,7,11,15,16,20, A!; XIV-12.
Long Term Response Action (LIRA): IX-13.
Mediation: I-3,4.
2-Index
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Model Removal AOC: 11-9.
Model Removal UAO: 11-9.
Mixed Funding: 1-2; IV-1; VIII-1,3,4; XII-18,19.
CashOut:VIII-15-16;XII-18.
MixedWork:VIII-13,15.
Preauthorization: VIII-14.
Natural Resource Damages: V-7; VIII-8,9.
Natural Resource Trustees: I-8; V-7; VIII-8,9.
NBAR:l-2; VIII-1,18.
NCR: 1-1,2; 11-1,2-4,13; 111-1,4; V-13; VI-3,13; VIM, 6; VIII-8; IX-1; XIII-4,7-8; XIV-1,5,12.
Negotiation Moratorium: V-5,11,12; VIII-2.
NPL: I-6; 11-15-17; III-4; IV-21,22, Ex. IV-4; VII-13; IX-13; XII-7; XIV-6,9,12:XV-5; Ex. XVII-1.
Office of Emergency and Remedial Response (OERR) Roles and Responsibilities: I-7; V-15;
VM6;VIII-13-15;IX-1;XIIM,5;XIV-10,11;XV-13.
Office of Enforcement (OE) Roles and Responsibilities: I-3; V-2,3; VI-16; VIII-2,3, Ex. VIII-5,
13,19,24;XII-8.
Office of General Counsel (OGC) Roles and Responsibilities: VIII-3.
Office of Regional Counsel (ORC) Roles and Responsibilities: I-5,7; 11-12; IV-6; V-10, Ex. V-
2, Ex. V-4; VIII-1,3; IX-17,20; X-4; XII-6,9,14,16,19; XIII-3,6; XV-4,7,8.
Office of Waste Programs Enforcement (OWPE) Roles and Responsibilities: V-2,6,12; VI-7;
VIII-2,3, Ex. VIII-5,9,13,15,19; XII-3,14; XV-8,9; XV-13; XVI-1,4; XVII-1,5.
On-Scene Coordinator (OSC) Roles and Responsibilities: Preface-1,11-1, Ex. 11-1,3-7,10,14,
15,22; XII-1,3,8,13,16,21; XIII-3; XV-3,7,9,11.
Operation and Maintenance (O&M): VIII-15; IX-3,8; Ch. X; XIV-9.
0&MPIan:X-2.
Oversight: 1-1,6; Ex. 11-1,11-12,22; VI-4-6; VIII-21; IX-1,4,8,11,19; XII-3; XIV-3,4,10,12;
XVI-2; (see RI/FS Oversight and RD/RA Oversight).
Oversight Assistant: VI-5,6,10.
Premium: VIII-16,17,26.
Proposed Plan: VI-6,17; VIM, 4,5,6-8,12; VIII-2,3,10; XIII-6.
Index-3
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PRP Search: 1-4,5,6; 11-2, Ex. 11-1,4, Ex. II-3,6,7,14,19,22; III-5; Ch. IV; V-1, Ex. V-1,4-8;
Ex. VIII-1,4,6,27; XII-7; XIV-1,10; XVI-6; Ex. XVII-5.
PRP Search Plan: III-3; IV-3, Ex. IV-1,8,27; Ex. V-1.
Baseline Report: IV-14,14, Ex. IV-1, Ex IV-2,27,28.
Interim Final Report: II-23; Ex. IV-1, Ex. IV-2,16,21,27,29.
QAPP/FSP:XV-2,Ex.XV-1.
RD/RA Negotiations: I-5; II-2; Ex. 111-1, IV-23; VII-8,12,18; Ch. VIII; XII-2,16; XIII-9, Ex. XVII-
1.
RD/RA Oversight: VIII-21; Ex. IX-2, Ex. IX-3,8,9,19; XIII-9.
Records Management: Ch. XV.
Record of Decision (ROD): I-5,6; 11-16; Ex. 111-1, Ex. III-2; V-1,2,9; VI-5,6,8,15,16; VII-2,4,
Ex. VIM, 8-13,15,18,19; VII-8; VIII-7; IX-1,4,6, Ex. IX-2; XIII-6; XIV-6; Ex. XV-3; Ex. XVII-1,
Ex. XVII-2.
Regional Project Officer (RPO): XVI-4,5,9,10.
Removals: Ch. II.
Reopeners: VIII-7,8,17; XII-17; Ex. XVII-5.
Risk Assessment: 11-1,2; VI-2,10,11,24; VII-2,16; VIII-20; Ex. XV-3.
Ecological Assessment: II-2; IV-10,24.
Endangerment Assessment: VI-10,24; IX-12,20.
Human Health: 11-1,2; VI-10,11,24; VII-2,16; VIII-20; IX-12,20.
RI/FS Negotiations: I-5; II-2; III-3, Ex. III-1; Ch. V; VI-2,7; VII-5; XIII-9; Ex. XVII-2, Ex. XVII-5.
RI/FS Negotiation Plan: III-3; V-5, Ex. V-1; VII-5.
RI/FS Oversight: I-6; Ex. V-3; VI-3-5,9, Ex. VI-2, Ex. VI-3,20; XVI-6,9.
Superfund Accelerated Cleanup Model (SACM): 1-1; 111-1,3-6; V-1; Ex. XVII-5.
Selection of Remedy: I-3, Ch. VII.
Site Completion: Ch. XI.
Site Management Plan: 111-1,3,4.
Site Planning: Ch. III.
Special Notice Letter (SNL): V-1,11; VI-1, Ex. VI-2; VIII-9-11, Ex. VIII-2,18,23; XII-10; Ex.
XV-1.
4-lndex
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Statement of Work (SOW): V-2,8, Ex. V-1, Ex. V-3,12,15; VI-2,3,8; X-2; XIII-4,5.
State Enforcement: I-7; VII-2,3,6,10,13,23; Ch. XIV; XV-5; XVII-7, Ex. XVII-5.
Statute of Limitations: 11-1; VIII-6; XII-1,8,20,21.
Steering Committee: IV-2, Ex. V-1, V-6,7.
Superfund Comprehensive Accomplishments Plan (SCAP): I-6; 11-14,16, Ex. II-6; III-3, Ex.
111-1,7; IV-21, Ex. IV-4; V-4,13,15, Ex. V-5, Ex. V-6; VI-14, Ex. VI-4,15,20; VIII-6,20,22, Ex.
VIII-6, Ex. VIII-7, Ex. VIII-8; IX-13,14, Ex. IX-4, Ex. IX-5,15,16; X-3; XII-21, Ex. XII-5; XIII-9;
XIV-9, Ex. XIV-1; XVI-1,2, Ex. XVI-1,3,4,7,8; Ch. XVII.
Superfund Enforcement Tracking System (SETS): IV-4; VIII-9.
Superfund Memorandum of Agreement (SMOA): VI-15, VII-2,10; XIV-1,2,6,7,10,12; XV-
5,Ex.XV-1,Ex.XV-3.
Technical Assistance Grant (TAG): XII-12; Ex. XIII-1; XVII-7.
Technical Assistance Committee: VI-7.
Technical Assistance Team (TAT): II-4,5,12,14,16; XV-1,3.
Technical Enforcement Support (TES): II-4,5,12,14; VIII-26; XV-1; XVI-1,7.
Unilateral Administrative Order (UAO)/Unilateral Order: Ex. 11-1; Ex. II-4,6,8,9,10,11,12,
15,22; V-16,17; VII-1; VIII-11, Ex. VIII-5,18,19,23,24.
Work Assignment Manager: XVI-2,4-6,9,10.
Index-5
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