vvEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Resoonse DIRECTIVE NUMBER: 9835. i* TITLE.* Interim Guidance on Potentially Responsible Party Participation in Remedial Investigations and Feasibility Studies APPROVAL DATE EFFECTIVE DATE: ' May 16, 1988 May 16, 1988 ORIGINATING OFFICE: OWPE/CED/Guldance and Oversight Branch E FINAL » D DRAFT LEVEL OF DRAFT OS A — Signed by AA or OAA D 8.—Signed by Office Director DC — Review & Comment REFERENCE (other documents): SWER OSWER OSWER DIRECTIVE DIRECTIVE Dl ------- vvEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Resoonse DIRECTIVE NUMBER: 9835. i* TITLE.* Interim Guidance on Potentially Responsible Party Participation in Remedial Investigations and Feasibility Studies APPROVAL DATE EFFECTIVE DATE: ' May 16, 1988 May 16, 1988 ORIGINATING OFFICE: OWPE/CED/Guldance and Oversight Branch E FINAL » D DRAFT LEVEL OF DRAFT OS A — Signed by AA or OAA D 8.—Signed by Office Director DC — Review & Comment REFERENCE (other documents): SWER OSWER OSWER DIRECTIVE DIRECTIVE Dl ------- v>EPA united otates environmental protection Agency Washington. DC 20460 OSWER Directive Initiation Request 1. Directive Numoer I A. 2. Originator Information Name of Contact Person Curt Overcast Mail Code (Office WH-527 bwPE/CED/GOB Telephone Code 3. Title Interim Guidance on Potentially Responsible Party Participation in Remedial Investigations and Feasibility Studies 4. Summary of Directive (irvclude brief statement of purpose) Sets forth policies and procedures governing PRP participation in the RI/FS process, including initiation of PRP searches PRP notification, development of agreements, and oversight of RI/FS activities. 5. Keywords PRPs, RI/FS, CERCLA, SARA, Oversight ,No Yes What directive (number, title) 6a. Does This Directive Supersede previous Directive^? i #9835.1 - "Participation of Potential!^ Responsible Parties in Development of RI's & FS's Under CERCLA" b. Does It Supplement Previous Oirective(s)? . ;_ I | No Ves What directive (number, title) 7. Draft Levei A - Signed by AA/DAA I—I B -• Signed by Office Director C - For Review & Comment D - In Developmer. 8. Document to be distributed to States by Headquarters? Y Yes No This Request Meets OSWER Directives System Format Standards. 9. Signature of Lead Crfice Directives Coordinator Date Date EPA Forfff 1315-17 (R«v. 5-87) Previous editionspre obsolete. OSWER OSWER OSWER 0 VE DIRECTIVE DIRECTIVE DIRECTIVE ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, O.C. 20460 MAY 16 •.::: MEMORANDUM SUBJECT: FROM: TO: May 16, 1938 Interim Guidance on Potentially Responsible Party Participation in Remedial Investigations and Feasibility Studies / . ' 6— '_>•-> - :• 1^=1 J. Winston Porter Assistant Administrator Regional Administrators, Regions I-X Regional Counsel, Regions I-X Director, Waste Management Division, Regions I, IV, V, VII, and VIJI Director, Emergency and Remedial Response Division, Region II Director, Hazardous Waste Management Division, Regions III and VI Director, Toxics and Waste Management Division, Region IX Director, Hazardous Waste Division, Region X I. INTRODUCTION This memorandum sets forth the policy and procedures governing the participation of potentially responsible parties (PRPs) in the development of remedial investigations (RI) and feasibility studies (FS) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986. This memorandum discusses: o Tb« initiation of enforcement activities including PRP ••arches and PRP notification; o ~"~The circumstances in which PRPs may conduct the RI/FS; o The development of enforceable agreements governing PRP RI/FS activities; ------- #9835.la o Initiation of PRP RI/FS activities and oversight of the RI/FS by EPA; o EPA control over PRP RI/FS activities including correction of deficiencies, dispute resolution, and termination of PRP RI/FS activities; and o PRP participation in Agency RI/FS activities. More detailed information regarding each of the above topics is included in the attached Appendices. This document is consistent with CERCLA and EPA guidance in effect as of March 1988, and is intended to supersede the March 20, 1984 memorandum from Assistant Administrators Lee M. Thomas and Courtney M. Price entitled "Participation of Potentially , Responsible Parties in Development of Remedial Investigations and Feasibility Studies Under CERCLA" (OSWER Directive No. 9835.1). Users of this guidance should consult the draft "Guidance For Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988) or any relevant guidance or policies issued after distribution of this document before establishing EPA/PRP responsibilities for conducting RI/FS activities. This guidance will be incorporated as an appendix to the "Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA." Additional guidance regarding procedures for EPA oversight activities will be available in the' forthcoming EPA "Guidance Manual on Oversight of Potentially Responsible Party Remedial Actions Under CERCLA." II. BACKGROUND Sections 1'04/122 l of CERCLA "provide PRPs with the opportunity to conduct the RI/FS when EPA determines that, 1) the PRPs are qualified to conduct such activities and 2) that they will carry out the activities in accordance with CERCLA requirements and EPA procedures. The Agency will continue its policy of early and timely PRP searches as well as early PRP notification and negotiation for RI/FS activities. It in also the policy of EPA to encourage the early and active participation of PRPs in conducting RI/FS activities. EPA 1. The legal authority to enter into agreements with PRPs is found in CERCLA Section 122(a). This section then refers to response actions conducted pursuant to Section 104(b). For the purposes of this guidance, Sections 104/122 will be cited when referring to such authority. ------- 39335.la believes that early participation of PRPs in the remedial process will encourage PRP implementation of the selected remedy. PRP participation in RI/FS activities will ensure that they have a better and more complete understanding of the selected remedy, and thus will be more likely to agree on implementation of the remedy. Remedial activities performed by PRPs will also conserve Fund monies, thus making additional resources available to address other sites. As part of the Agency's effort to encourage PRP participation in remedial activities, EPA will consider the PRPs' role in conducting RI/FS activities when assessing an overall settlement proposal for the remedial design and remedial action. For example, when the Agency performs a non-binding allocation of responsibility (NEAR), the Agency may consider previous PRP efforts and cooperation. This will provide an additional incentive for PRPs to be cooperative in conducting RI/FS activities. Although EPA encourages PRP participation in,conducting the RI/FS, the Agency and CERCLA impose certain conditions governing their participation. These conditions are intended to assure that the RI/FS performed by the PRPs is consistent with Federal requirements and that there is adequate oversight of those activities. These conditions, are discussed both in- Section III and Appendix I of this memorandum. At the discretion of EPA, a PRP (or group of PRPs) may assume full responsibility for undertaking RI/FS activities pursuant to Sections 104/122 of CERCLA. The terms and conditions 'governing the RI/FS activities should be specified in an Administrative Order. The use of Administrative Orders is authorized in CERCLA Section 122(d)(3); they are the preferred type of agreement for RI/FS activities since they are authorized internally and therefore, may be negotiated more quickly than Consent Decrees. Before SARA, Administrative Orders were signed using the authorities of Section 106 of CERCLA. New provisions in SARA allow for Orders to be signed using the authorities of Sections 104/122; Section 104/122 Orders do not require EPA to make a finding of imminent and substantial endangerment. RI/FS activities developed subsequent to the Administrative Order are set forth in a Statement of Work, which is then embodied or incorporated into the Order. A Work Plan describing detailed procedure~3~~and criteria by which the RI/FS will be performed must be developed by the PRPs and, after approval by EPA, should also be incorporated into the Administrative Order. It is the responsibility of the lead Agency to ensure the quality of the effort if the PRPs assume responsibility for conducting the RI/FS. Therefore, EPA will establish oversight ------- =9335. la procedures and project controls to ensure that the response actions are consistent with CERCLA and the National Contingency Plan (NCP). Section 104(a)(1) of CERCLA mandates that no PRP be allowed to undertake an RI/FS unless EPA determines that the party(ies) conducting the RI/FS is qualified to do .so and further, that the PRPs agree to reimburse EPA for the costs associated with qualified third party oversight. Third party oversight is required by Section 104(a)(1) and will be provided to assist in overseeing and reviewing the conduct of the RI/FS. III. INITIATION OF ENFORCEMENT ACTIVITIES As part of effective management of enforcement activities, timely settlements for RI/FS activities are to be pursued. This includes conducting .PRP searches early in the site discovery process and subsequent notification to all PRPs of their potential liability and of their opportunity to perform response activities. Guidance on conducting timely and effective PRP searches is contained in the guidance manual, "Potentially Responsible Party Search Manual" (August 27, 1987 •- OSWER Directive No. 9834.6). EPA policy has been to notify PRPs of their potential liability for the planned response activities, to exchange information about the site, and to provide PRPs with an ' opportunity to undertake or finance the response activities themselves. In the past this has been accomplished by issuing a "general notice" letter to the PRPs. In addition to the use of the general notice letter, Section 122(e) of CERCLA now authorizes EPA to use "special notice" procedures, which for an RI/FS, establish a 60 to 90 day moratorium and formal negotiation period. The purpose of the moratorium is to provide time for formal negotiation between EPA and the PRPs for conduct of RI/FS activities. In particular, use of the special notice procedures triggers a 60 day moratorium on EPA conduct of the RI/FS. During the 60 day moratorium, if the PRPs provide EPA with a "good faith offer" to conduct or finance the RI/FS, the negotiation period can be extended to a total of 90 days. EPA considers a good faith offer to be a written proposal where the PRPs make a showing of their qualifications and willingness to conduct or finance th« RI/FS. Such a showing should include the major elements of a Statement of Work or Work Plan (see Appendix II). Minor deficiencies in the initial submittals should not be grounds for a determination that the offer is not a good faith offer or that the PRPs are unable to perform the RI/FS. To facilitate, among other things, PRP participation in the RI/FS process, Section 122(e)(l) requires the special notice letter to provide the names and addresses of other PRPs, the ------- =?9835. la volume and nature of substances contributed by each PRP, 'and a ranking by volume of substances at the site, to the extent this information is available at the time of special notice. Regions are encouraged to release this information to PRPs with the notice letters, to the extent the information is available, when the notice letters are issued. To expedite settlements, Regions are also encouraged T:O give PRPs as much guidance as possible concerning the RI/FS process. It is appropriate to transmit to PRPs copies of important guidance documents such as the draft "Guidance for Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988), as well as model Administrative Orders and Statements of Work. A model Administrative Order can be found in the memorandum from Gene Lucero entitled, "Model CERCLA Section 106 Consent Order for an RI/FS" (January 31, 1985 - OSWER Directive No. 9835.5) while a model Statement of Work can be found as an appendix to the "Guidance on Remedial Investigations Under CERCLA" (June 1985 - OSWER Directive No. 9355.6-06B). (The model Order and the model Statement of Work are being revised to reflect SARA requirements and will be forthcoming.) Other Regional and Headquarters guidance relating to technical issues may be given to PRPs, as well as examples of project plans (plans that must be developed for the RI/FS activities) that are of high quality. A description of the required project plans is included in Appendix II. Although use of the special .notice procedures 'is discretionary, Regions are encouraged to use these procedures in the majority of cases. If EPA decides not to employ the special notice procedures in Section 122(e) the Agency will notify the PRPs in writing of such a decision, including an explanation as to why EPA believes the use of the special notice procedures is inappropriate. . Additional information on the content of special notice letters, including the use of these notice provisions, can be found in the memorandum entitled "Interim Guidance on Notice Letters, Negotiations, and Information Exchange" (October 19, 1987 - OSWER Directive No. 9834.10). Section 121(f)(l) requires that the State be notified of PRP negotiation* and that an opportunity for State participation in such negotiations be provided. In addition, Section 122(j)(l) requires that if a release or threat of release at the site in question may have resulted in damages to natural resources, EPA must notlTy the appropriate Federal or State Trustee and provide an opportunity for the Trustee to participate in the negotiations. To simplify the notification of Federal Trustees, the Agency intends to provide a list of projects in the Superfund Comprehensive Accomplishments Plan (SCAP) to the Trustees as notice to participate in the negotiations. ------- ^9835.la IV. CONDITIONS FOR EPA INVOLVEMENT IN AND PRP INITIATION OF RI/FS ACTIVITIES Under Section 104(a)(1) EPA may authorize PRPs to conduct RI/FS activities at any site, provided the PRPs can do so promptly and properly and can meet the conditions specified by EPA for conducting the RI/FS. These conditions are discussed in Appendix I of this document and involve the scope of activities, the organization of the PRPs, and the PRPs1 (and their contractor's) demonstrated expertise. EPA encourages PRPs to conduct the RI/FS provided that the PRPs commit in an Order (or Consent Decree) under CERCLA Sections 104/122 (or Section 106/122 for a Decree) to conduct a complete RI/FS to the satisfaction of EPA, under EPA (or State) oversight.2 Oversight of RI/FS activities by the lead agency is required by Section 104(a)(1) and is intended to assure 'that the RI/FS is adequate for lead agency identification of an appropriate remedy, and that it will otherwise meet the Agency requirements of CERCLA, the NCP, and relevant Agency guidance. EPA will allow PRPs to conduct RI/FS activities and will provide review and oversight under the following general circumstances. EPA's priority is to address those NPL sites that have been identified on the SCAP. The SCAP is an EPA management plan which identifies site- and activity- specific Superfund financial allocations for each quarter of the current fiscal year. When employing Section 122(e) notice procedures, EPA will notify PRPs of its intention to conduct RI/FS activities at NPL sites in a manner that allows at least 90 days notice before obligating the funds necessary to complete the RI/FS (see Section III of this guidance). During this 90 day timeframe PRPs may elect to conduct the RI/FS, under the review and oversight of EPA. If the PRPs agree to conduct the RI/FS, tbey must meet the conditions discussed in Appendix I of this guidance. The scope and terms for conducting the studies are embodied in an Agreement; as mentioned in Section II, Administrative Orders are the preferred type of Agreement for RI/FS activities. EPA will not engage in lengthy discussions with PRPs over whether the PRPs will conduct the RI/FS; rather, EPA will adhere to the tim«frames established by the Section 122 special notice provisions. In most instances, once Fund resources have been obligated to conduct the RI/FS, the PRPs will no longer be eligible To conduct the RI/FS activities at the site. 2 For a State-lead site the State is responsible for oversight; however, EPA should establish a minimum oversight program to ensure that the State is providing adequate oversight of the remedial activities. ------- 49335.la The actions described below are typically taken to initiate RI/FS activities. o EPA develops a site-specific Statement of Work (SOW) in advance of the scheduled RI/FS start. This SOW is then provided to the PRPs along with a draft of the Administrative Order (or Consent Decree) at the time of special notice. PRPs may, with EPA approval, submit a single site plan that incorporates the elements of a SOW and a detailed Work Plan. This combined site plan must clearly set forth the scope of the proposed RI/FS and would be incorporated into the Agreement in place of the SOW. o Final provisions of the SOW are negotiated with the Order (or Decree). o EPA determines whether the PRPs possess the necessary capabilities to conduct an RI/FS in a timely and effective manner (conducted simultaneously with other negotiations). » o EPA develops a Community Relations Plan specifying any activities that may be required of the PRPs. (Community relations activities are discussed in Appendix II of this guidance.) o EPA determines contractor and staff resources required for oversight and initiates the development of an oversight plan. Initiation of the oversight plan may include preparing a Statement of Work, if a contractor is to develop the oversight plan. o EPA and PRPs identify and procure any necessary assistance. o PRPs submit a Work Plan to EPA for Agency review and approval. The Work Plan must present detailed procedures and requirements for conducting the RI/FS if such procedures have not been set forth in the Agreement. This Work Plan, which in most instances is on« of the first deliverables under the Order (or Decree), is commonly incorporated into the Agreement __following EPA approval. These standardized actions ensure that the scope of the RI/FS activities to be conducted by the PRPs, and the procedures by which the RI/FS is performed, are consistent with EPA policy and guidance. Additional actions may be required either for a more complex site or for a site where a number of PRPs are ------- = 9335. la involved. Regardless of the circumstances, the actions listed in this section should be negotiated as expeditiously as possible. Specific elements of these actions are discussed in Appendix II. V. DEVELOPMENT OF THE RI/FS ADMINISTRATIVE ORDER OR CONSENT DECREE The PRPs must respond to EPA's notice letter by either declining, within the time specified, to participate in the RI/FS, or by offering a good faith proposal to EPA for performing the RI/FS. Declining to participate in the RI/FS may be implied if the PRPs do not respond to the notice letter. If the PRPs have declined to participate, or the time specified has lapsed, EPA will obligate funds for performing the RI/FS. If a good faith proposal is submitted, EPA will negotiate with the PRPs on the scope and terms for conducting the RI/FS. The results of successful negotiations will in most cases be contained in an Administrative Order, or where the site is in litigation, in a Judicial Consent Decree entered into pursuant to Section 122(d) of CERCLA. Guidance for the development of an Administrative Order is provided in the document "Administrative Order: Workshop and Guidance Materials" (U.S. EPA, 1985f), and in the memorandum from Gene Lucero entitled "Model CERCLA Section 106 Consent Order for -an RI/FS" (January 31, 1985). (The latter guidance .is currently being revised since the provisions in SARA allow for Orders to be signed using the authorities of Sections 104/122.) An Administrative Order (or Consent Decree) will generally contain the scope of activities to be performed (either as a Statement of Work or Work Plan), EPA or State oversight roles and responsibilities, and enforcement options that may be exercised in the event of noncompliance (such as stipulated penalties). In . addition to the above, the Agreement will typically include the following elements, as agreed upon by EPA, the PRPs, and other signatories to the Agreement. o Jurisdiction - Describes EPA's authority to .enter into Administrative Orders or Consent Decrees. o Parties bound - Describes to whom the Agreement applies —and is binding upon. o Purpose - Describes the purpose of the Agreement in terms of mutual objectives and public benefit. o Findings of fact, determination, and conclusions of law - Provides an outline of facts upon which the Agreement 8 ------- =9335.la is based, including the fact that PRPs are not subject to a lesser standard of liability and will not receive preferential treatment from the Agency in conducting the RI/FS. Notice to the State - Verifies that the State has been notified of pending site activities. Work to be Performed - Provides that PRPs submit project plans for EPA or State review and approval before commencing RI/FS activities. Project plans are those plans developed for the RI/FS project and include: a Work Plan, describing all tasks to be performed during the RI/FS (including the schedules for EPA review and approval procedures as well as a schedule for Work Plan submission and RI/FS implementation); a Sampling and Analysis Plan, describing the field sampling to be performed and the quality assurance procedures which will be followed for sampling and analysis (including a description of how the data gathered during the RI/FS will*be .managed); and a Health and Safety Plan describing health and safety precautions to be exercised while onsite- (More information on the project plans can be found in Appendix II of this guidance.) Compliance with CERCLA. the NCP, and Relevant Agency Guidance - Specifies that remedial action at a site will comply with the requirements of CERCLA, the NCP, and relevant Agency guidance determined to be appropriate for site remediation. Reimbursement of costs - Specifies that PRPs will assume all costs of performing the work required by the Agreement. In addition, this section commits PRPs to reimbursement of all costs associated with EPA review and oversight activities. This includes reimbursement for third party assistance in oversight, as required by section 104(a)(1). This section should also specify th« nature and kind of cost documentation to be provided and the process for billing and receiving payment. Reporting - Specifies the type and frequency of reporting that PRPs must provide to EPA. Normally the reporting requirements will, at a minimum include the Work Plan(s), a RI summary, a summary describing-the development and screening of alternatives, results of treatability studies, progress reports, and the draft and final RI/FS reports. Additional reporting ------- =9835.la requirements are left to the discretion of the Regions. That is, Regions may require additional deliverables such as interim reports on particular RI or FS activities. Designated EPA, State, and PRP project coordinators - Specifies that EPA, the State, and PRPs shall each designate a project coordinator. Site access and data availability - Stipulates that PRPs shall allow access to the site by EPA, the State, and third party oversight officials. Access will be for inspection, review, oversight, and monitoring in any way pertaining to the work undertaken pursuant to the Order (or Decree). In addition, access will be provided in the event of project takeover. This section also stipulates that EPA will be provided with all currently available data. Record preservation - Specifies that all records must be maintained by both parties for a minimum of 6 years after termination of the Agreement, followed by a provision requiring PRPs to offer the site records to EPA before destruction. Administrative record requirements - Provides that all . information upon which the selection of remedy is based must be-submitted to EPA in fulfillment of the administrative record requirements pursuant to Section 113 of CERCLA. (Additional information on administrative record requirements is contained in Appendix III of this guidance.) Dispute resolution - Specifies steps to be taken if a dispute occurs. The Administrative Order states that with respect to all submittals and work performed, EPA will be the final arbiter, while the court is the final arbiter for a Consent Decree. (More information on dispute resolution can be found in Appendix IV of this guidance.) D«lay in performance/stipulated penalties - Specifies ZPA's authority to invoke stipulated penalties for —jaoncompliance with Order or Decree provisions. Section 121 of CERCLA requires that Consent Decrees contain provisions for penalties in an amount not to exceed $25,000 per day. In addition to stipulated penalties, Section 122 provides civil penalties for violations of Administrative Orders and Consent Decrees. Delays that endanger public health and/or the environment may 10 ------- =9335.la result in termination of the Agreement and EPA takeover of the RI/FS. (More information on stipulated penalties can be found in the Office of Enforcement and Compliance Monitoring's (OECM) "Guidance on the use of Stipulated Penalties in Hazardous Waste Consent Decrees" (September 21, 1987) and in Appendix IV of this guidance.) o Financial assurance - Specifies that PRPs should have adequate financial resources or insurance coverage to address liabilities resulting from their RI/FS activities. When using contractors, PRPs should certify that the contractors have adequate insurance coverage or that contractor liabilities are indemnified. o Reservation of rights - States that PRPs are not released from all CERCLA liability through compliance with the Agreement, or completion of the RI/FS. PRPs may be released from liability relating directly to RI/FS requirements, if PRPs complete the RI/FS activities to the satisfaction of EPA. o Other claims - Provides that nothing in the Agreement shall constitute a release from any claim or liability other than, perhaps, for the cost of the RI/FS, if . .' completed to EPA satisfaction. Also provides that ''. ;nothing in the Agreement shall constitute preauthorization of a claim against the Fund under CERCLA. This section should also specify the conditions for indemnification of the U.S. Government. o Subsequent modifications/Additional work - 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 needed to enable the selection of an appropriate response action. (Appendix IV of this guidance contains additional information on this clause.) VI. STATEMENT OF WORK AND WORK PLAN Based upon available models and guidance, the Region should send a Statement of Work (SOW) to the PRPs with the special notice and draft Administrative Order (or Consent Decree). "The SOW describes the broad objectives and general activities to be undertaken in the RI/FS. Once the PRPs receive the SOW they 11 ------- =9335.la develop a more detailed Work Plan, which is typically incorporated into the Order (or Decree) following EPA approval. The Work Plan expands the tasks described in the SOW and presents detailed procedures for conducting the RI/FS. VII. REVIEW AND OVERSIGHT OF THE RI/FS To ensure that the RI/FS conforms to the NCP and the requirements of CERCLA, including Sections 104(a)(l) and 121, EPA will review and oversee PRP activities. Oversight is also required to ensure that the RI/FS will result in sufficient information to allow for remedy selection- by the lead Agency. An oversight plan should be developed which specifies the activities EPA, the State, and EPA contractors (or other . oversight officials) will be performing. Different mechanisms will be used for the review and oversight of different PRP products and activities. These mechanisms, and corresponding PRP activities, should be specified in the oversight plan. Generally, however, the following oversight activities should be specified: o Review of plans, reports, and records by EPA and the State; / . •-••_.•••" o • .Oversight of field activities (including maintenance of records and documentation); o Meetings; and o Special studies. Section 104(a)(1) requires that the President contract with or arrange for a "qualified person" to assist in the oversight and review of the conduct of the RI/FS. EPA believes that qualified persons, for the purposes of overseeing RI/FS activities, are those firms or individuals with the professional qualifications, expertise, and experience necessary to provide assurance that the Agency is conducting meaningful and effective oversight of PRP activities. In this context, the qualified person generally will be either a TES, REM, or ARCs contractor. EPA employees, employees of other Federal agencies, State employees1,- or any other "qualified person" EPA determines to be appropriate however, may be asked to perform the necessary oversight functions. As part of the Section 104 requirements, PRPs are required to reimburse EPA for third party oversight costs. It is Agency policy however, to recover all response costs at a site including 12 ------- 59835.la all costs associated with oversight. Additional guidance on oversight and project control activities is presented in Appendices III and IV of this guidance, respectively. VIII. CONTROL OF ACTIVITIES EPA will usually not intervene in a PRP RI/FS if activities are conducted in conformance with the conditions and terms specified by the Order (or Decree). When deficiencies are detected, EPA will take immediate steps to correct the PRP activities. Deficiencies will be corrected through the use of the following activities: (1) identification of the deficiency, (2) demand for corrective measures, (3) use of dispute resolution mechanisms, where appropriate, (4) imposition of penalties, and if necessary, (5) PRP RI/FS termination and project takeover or judicial enforcement. These activities are described in detail in Appendix IV of this guidance. IX. PRP PARTICIPATION IN AGENCY-FINANCED RI/FS ACTIVITIES PRPs that elect not to perform the RI/FS should be allowed an opportunity for involvement in a 'Fund-Financed RI/FS. Section 113(k)(2)(B) requires that interested persons, including PRPs, be provided an opportunity for participation in the development of the administrative record. PRP participation may include the submittal of information, relevant to the selection of remedy, for inclusion in the record and/or the review of record contents and submittal of comments on such contents. The extent of additional PRP involvement will be left to the discretion of the Region and may include activities such as: o Access to the site to observe sampling and analysis activities; and o Access to raw data and draft reports. It should b« noted that the Region may be required to allow private citizens access to the same information that is provided to the PRP». The Regions must therefore take this into consideration when determining the extent of the PRPs involvement in a Fund^Tinanced RI/FS. The Agency continues to encourage PRP participation in Agency-Funded RI/FSs to the maximum extent possible. Private parties may possess technical expertise or knowledge about a site which would be useful in developing a sound RI/FS. Involvement by PRPs in the development of a Fund-financed RI/FS may also 13 ------- =9835.la expedite remediation by identifying and satisfactorily resolving differences between the Agency and private parties. Aside from participation in' the administrative record, which is a statutory requirement, the final decision whether to permit PRPs to participate in other aspects of the Fund-financed RI/FS (as well as tne scope of any participation) rests with the Regions. This decision should be based on the ability of PRPs to organize themselves so that they can participate as a single entity, and the ability of PRPs to participate without undue interference with or delay in completion of the RI/FS, and other factors that the Regions determine are relevant. The Region may terminate PRP participation in RI/FS development if unnecessary expenses or delays occur. X. CONTACT ; ' • For further information on the subject matter discussed in this interim guidance, please contact Susan Cange (FTS 475-9805) of the Guidance and Oversight Branch, Office of Waste Programs Enforcement. 14 ------- APPENDIX I CONDITIONS FOR PRP CONDUCT OF THE RI/FS Organization and Management When several potentially responsible parties are involved at a site they must be able to organize themselves quickly into a single representative body to negotiate with EPA. To facilitate this negotiation process, EPA will make available the names of and addresses of other PRPs, in accordance with the settlement provisions of CERCLA Section 122(e). Either a single PRP or an organized group of PRPs may assume responsibility for development of the RI/FS. Scope of Activities -As part of the negotiation process PRPs must agree to follow the site-specific Statement of Work (SOW) developed by EPA, including reasonable modifications acceptable to EPA, as the basis for conducting an RI/FS. PRPs are required^to submit an RI/FS Work Plan setting forth detailed procedures'and tasks necessary to accomplish the RI/FS activities described in the SOW. EPA will reject any request for modifications to the SOW that are not consistent with CERCLA (as amended by SARA), the NCP, the requirements set forth in this guidance document, the draft "Guidance on Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988), or other relevant CERCLA guidance documents. 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, and any amendments that may be reasonably anticipated to that document. In addition, PRPs must demonstrate that they possess the managerial expertise and have developed a management plan sufficient to ensure that the proposed activities will be properly controlled and efficiently implemented. This management plan should be submitted to EPA for approval either during negotiations or as a part of th« Work Plan. As stated previously, a Work Plan describing detailed procedures and criteria by which the RI/FS will be performed is developed by the PRPs after the EPA SOW is developed"^" The PRP management plan should be equivalent in scope and content to the discussion of roles and responsibilities of key personnel usually contained in the Quality Assurance Project Plan (see the draft "Guidance on Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988)). 15 ------- In addition to demonstrating their managerial capabilities, the PRPs should demonstrate that they possess the financial capability to conduct and complete the RI/FS in a timely and effective manner. These capabilities are discussed briefly below. Q Demonstrated Technical Capability PRPs should be required to demonstrate the technical capabilities of key personnel involved in executing the project. Personnel qualifications may be demonstrated by submitting resumes and references. PRPs should demonstrate the capabilities of the firm that will perform the work by outlining their past areas -of business, relevant projects and experience, and overall familiarity with the types of activities to be performed as part of the remedial response. . It is important that qualified firms be retained "for performing RI/FS activities. Firms that do not have the necessary expertise for performing RI/FS studies may create unnecessary delays in the project and may create situations which further endanger public health or the environment. These situations may be created when PRP contractors submit insufficient project plans (plans developed for the RI/FS project), submit deficient reports, or perform inadequate field work. .Furthermore, excessive Agency oversight may be required in the event .that an unqualified contractor, performs the RI/FS; the Agency may have to significantly increase its workload by providing repeated reviews of project plans, reports,'and oversight of field activities. The PRPs must also demonstrate the technical capabilities of the laboratory chosen to do the analysis of samples collected during the RI/FS. If a non-CLP laboratory is selected, EPA may require a submission from the laboratory which provides a comprehensive statement of the laboratories' personnel qualifications, equipment specifications, security measures, and any other material necessary to prove the laboratory is qualified to conduct the work. o Demonstrated Management Capability PRPs must demonstrate that they have the administrative capabilities necessary for conducting the RI/FS in a responsible and timelymanner. An RI/FS team organization chart should be prepared describing responsibilities and lines of authority. Positions and responsibilities should be clearly related to/ technical and managerial qualifications. The PRPs should also demonstrate an understanding of effective communications, information management, quality assurance, and quality control 16 ------- systems. PRPs usually procure the services of consultants (or contractors) to conduct the required RI/FS activities. The consultants must demonstrate, in addition to those requirements stated above, effective contract management capabilities. o Demonstrated Financial Capability The PRPs should develop a comprehensive and reasonable estimate of the total cost of anticipated RI/FS activities. EPA will decide or. a case-by-case basis if the PRPs will be required to demonstrate that they have the necessary financial resources available and committed to conduct the RI/FS activities. The resources estimated should be adequate to cover the anticipated costs for the RI/FS as well as the costs for oversight, plus a margin for unexpected expenses. If, during the conduct of the RI/FS the net worth of the financial mechanism providing funding for the RI/FS is reduced to less than that required to complete the remaining activities, the PRPs should immediately notify EPA. Under conditions specified in the Order (or Decree), PRPs are required to complete the RI/FS regardless of initial cost estimates or financial mechanisms. i o 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 the EPA for review. Verification should be made that the PRPs1 consultants have no conflict of interest with respect to the project. Any consultants having current EPA assignments as prime contractors or as subcontractors must obtain approval from their EPA Contract Officers before performing work for PRPs. In addition, consultants that are PRPs at the site may not conduct or assist in the conduct of the RI/FS. Lack of clarification on possible conflicts of interest may delay the PRP RI/FS. EPA will reserve the right to review the PRPs proposed selection of consultants and will disapprove their selection if, in EPA's opinion, they either do not possess adequate capabilities or there exists a conflict of interest. It should be noted that the ultimate responsibility for selection of contractors rests with the PRPs. 17 ------- APPENDIX II INITIATION OF PRP RI/FS ACTIVITIES Development of the Statement of Work After the PRPs have been identified in the PRP Search Report they are sent either a general notice letter followed by a special notice letter or a general notice letter followed by an explanation pursuant to Section 122(a) why special notice procedures are not being used. EPA will engage in negotiations with those PRPs who have submitted a good faith offer in response to the notice letter and therefore have volunteered to perform the RI/FS. While the PRPs are demonstrating their capabilities for conducting the RI/FS, EPA will negotiate the terms of the Administrative Order (or Consent Decree). Either an acceptable Statement of Work or Work Plan must be incorporated into the Agreement. The Statement of Work (SOW) is developed by EPA and describes, in a comprehensive manner, all RI/FS activities to be performed, as reasonably anticipated, prior to the onset of the project. The SOW focuses on broad objectives and describes general activities that will be undertaken to achieve these objectives. Detailed procedures by which the work will be accomplished are not presented -in the SOW, but are described in the subsequent Work Plan that is developed by the PRPs. In certain instances, with the approval of EPA, PRPs may prepare a single site plan incorporating the elements of a SOW and a Work Plan. In such instances, the site plan will be incorporated into the Order (or Decree) in place of the broader SOW. o Use- of the EPA Model SOW EPA has developed a model SOW defining a comprehensive RI/FS effort which is contained in the June, 1985 "Guidance on Remedial Investigations under CERCLA" (OSWER Directive No. 9355.0-06B). The Regions should develop a site-specific SOW based upon the model and taking into account SARA requirements. RI/FS projects managed by PRPs will involve, at a minimum, all relevant activities s«t forth in the EPA model SOW. Further, all plans and reports identified as deliverables in the EPA model SOW must be identified as deliverables in the EPA SOW and/or the Work Plan developed by the PRPs. Additional deliverables may be required by the Regions and should be added to the Administrative Order (or Consent Decree). 18 ------- o Modification of the EPA Draft SOW Requirements The activities set forth in the model SOW are considered by EPA to be the critical RI/FS activities that are required by the NCP. PRPs should present detailed justifications for any proposed modifications and amendments to the activities set forth in the SOW developed for the site by EPA. EPA will review all proposed modifications and approve or disapprove their inclusion in the SOW based on available information, EPA policy and guidance, overall program objectives, and the requirements of the NCP and CERCLA. EPA will not allow modifications that, in the judgment of the Agency, will lead to an unsatisfactory RI/FS or inconsistencies with the NCP. Review of the RI/FS Project Plans RI/FS project plans include those plans developed for the RI/FS. At a minimum the project plans should include a Work Plan, a Sampling and Analysis Plan, a Health and Safety Plan, and a Community Relations Plan (the Community Relations Plan is developed by EPA). EPA review and approval of the RI/FS project plans will usually be required before PRPs can begin site activities. An example when limited project activities may be initiated prior to approval of the project plans would be if EPA (or the PRPs) need to either verify or identify something, that is either unclear or lacking from the PA/SI prior to completion of. the Sampling and Analysis Plan. o Contents of the Work Plan The Work Plan expands the tasks of the SOW, and the responsibilities specified in the Agreement, by presenting detailed procedures for conducting the RI/FS. Typically the Work Plan is developed after the draft Order (or Decree) and then incorporated into the Agreement*. "In some cases however it may be appropriate for EPA to develop the Work Plan prior to actual negotiation with the PRPs and attach the plan to the draft Agreement. The PRP RI/FS Work Plan must be consistent with current EPA guidance. Guidance on developing acceptable Work Plans is available in the draft "Guidance on Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988) . Additional guidance will be forthcoming in the proposed NCP. One* the Work Plan is approved by EPA, it becomes a public document and by the terms of the Agreement, should be incorporated by reference into that document. The Work Plan should, at a minimum, contain the following elements. Introduction/Background Statement - PRPs should prov-ide an introductory or background statement describing their under- standing of the work to be performed at the site. This should include historical site information and should highlight present site conditions. 19 ------- Description of RI/FS Tasks in Chronological Order - The PRPs should prepare a chronological description of the anticipated RI/FS activities. Important milestones, reports, meetings, and deliverables should be noted. (A list of standardized RI/FS tasks has been developed and is available in the guidance entitled "RI/FS Improvements" (July 23, 1987 - OSWER Directive No. 9355.0-20). o Contents of the Sampling and Analysis Plan A Sampling and Analysis Plan (SAP) must be submitted by the PRPs before initiation of relevant field activities. This plan contains two separate elements; a Field Sampling Plan and a Quality Assurance Project Plan. These documents were previously submitted as separate deliverables, but are now combined into one document. Though the -SAP is typically implemented by PRP contractors, it is the responsibility of the PRPs to ensure that the goals and standards of the plan are met. (Verification that the goal and standards of the SAP are met will also be part of EPA's oversight responsibilities.) The SAP should contain the following elements. ' Field Sampling Plan - The Field Sampling Plan includes a detailed description of all RI/FS sampling and analytical activities that will be performed. These activities should be consistent with the NCP and relevant CERCLA guidance. Further guidance on developing Field Sampling Plans is presented in the "Guidance For Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988). Quality Assurance Project Plan - The SAP must include a detailed description of quality assurance/quality control (QA/QC) procedures to be employed during the RI/FS. This section is intended to ensure that the RI/FS is based on the correct level or extent of sampling and analysis required to produce sufficient data for evaluating remedial alternatives for a specific site. A second objective is to ensure the quality of the data collected during the RI/FS. Guidance on appropriate QA/QC procedures may also be found in the draft "Guidance For Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988). Another publication on this subject is the guidance document, "Data QuaHrty Objectives for the RI/FS Process" (March, 1987 - OSWER Directive No. 9355.0-7B). If the SAP modifies any procedures established in relevant guidance, it must provide an explanation and justification for the change. 20 ------- o Other Project Plans Other project plans that are likely to be required in the RI/FS process include the Health and Safety Plan and the Community Relations Plan. Health and Safety Plan - PRPs should include a Health and Safety. Plan either as part of the Work Plan or as a separate document. The Health and Safety Plan should address the measures taken by the PRPs to ensure that all activities will be conducted in an environmentally safe manner for the workers and the surrounding community. Guidance on the appropriate contents of a Health and Safety Plan may be found in the draft "Guidance For Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988) . In addition, Health and Safety requirements are found "in "OSHA Safety and Health Standards: Hazardous Waste Operations and Emergency Response" (40 CFR Part 1910.120). Community Relations Plan - EPA must prepare a Community Relations Plan for each NPL site. More information on Community Relations activities is contained below. o Review and Approval PRPs must submit all of the required RI/FS project plans (with the exception of the Community Relations Plan which is developed by EPA) to EPA for review and approval. EPA will review the plans for their technical validity and consistency with the NCP and relevant EPA guidance. Typically, the Agency must review and approve these plans before PRPs can begin any site activities. Any disagreements that arise between EPA and the PRPs over the contents of the plans should be resolved according to th« procedures set/ forth in the dispute resolution section of the relevant EPA/PRP Agreement. Community Relations EPA is responsible for developing and implementing an effective community relations program, regardless of whether RI/FS activities are fund-financed or conducted by PRPs. At State-lead •nforcement sites, funded by EPA under Superfund Memoranda of Agreement (see the "Draft Guidance on Preparation of a Superfufld. Memorandum of Agreement (October 5, 1987 - OSWER Directive No. 9375.0-01)), the State has the responsibility for development and implementation of a community relations program. PRPs may, under certain circumstances, assist EPA or the State in implementing the community relations activities. For example, PRPs may wish to participate in community meetings and in preparing fact sheets. PRP participation in community relations activities would, however, be at the discretion of the Regional 21 ------- Office, or the State, and would require, oversight by EPA or the State. EPA will not under any circumstances negotiate press releases with PRPs. EPA (or the State) designs and implements community relations activities according to CERCLA and the NCP. A Community Relations Plan must be developed by EPA for all NPL sites as described by the EPA guidance, "Community Relations in Superfund: A Handbook" (U.S. EPA, 1983a - OSWER Directive No. 9230.0-03). (This guidance is being revised to reflect the new requirements of SARA and will be forthcoming.) The Community Relations Plan must be independent of negotiations with PRPs. Guidance for conducting community relations activities at Superfund enforcement sites is specifically addressed by Chapter VI of the Handbook and the EPA memo entitled "Community Relations Activities at Superfund Enforcement Sites—Interim Guidance" (U.S. EPA, 1985 - OSWER Directive No. 9230.0-03-a). In some instances the decision regarding PRP participation in community relations activities will be made after the Community Relations Plan has been developed. As a result, the plan will need to be modified by EPA or State staff to reflect Agency and PRP roles and responsibilities. EPA, or the State, will provide the Community Relations Plan to all interested parties at the same time. In general, if the case has not been referred to the Department of Justice (DOJ) for litigation, community relations activities during the RI/FS should be the same for Fund- and PRP-lead sites. If the case has• been (or may potentially be) referred to DOJ for litigation, constraints will likely be placed on the scope of activities. The EPA Community Relations Plan may be modified after consultation with the technical enforcement staff, the Regional Counsel, the Office of Enforcement and Compliance Monitoring, and other negotiation team members, including, if the case is referred, the lead DOJ or Assistant United States Attorneys (i.e, the litigation team). This technical and legal staff must be consulted prior to any public meetings or dissemination of fact sheets or other information; approval must be obtained prior to releases of information and discussions of technical information in advance. PRP participation in implementing community relations activities will be subject to EPA (or State) approval in administrative settlements and EPA/DOJ in civil actions. Key activities specific to community relations programs for enforcement sites include the following: o Public review of Work Plans for Administrative Orders The PRP Work Plan, as approved by EPA, is incorporated into the Administrative Order (or Consent Decree). Once the Agreement is signed, it becomes a public document. Although there is no requirement for public comment on an Administrative Order, 22 ------- Regional staff are encouraged to announce, after the Order is final, that the PRP is conducting the RI/FS. Publication of notice and a corresponding 30-day comment period is required however, for Consent Decrees. EPA may also consult with com- munity representatives on the PRP Work Plan. o .Availability of RI/FS information from the PRPs PRPs, in agreeing to conduct the RI/FS, must also agree to provide all information necessary for EPA (or the State) to implement a Community Relations Plan. The Agreement should. identify the types of information that PRPs will provide, and contain conditions concerning the provision of this information. EPA should provide the PRPs with the content of the plan so that the PRPs can fully anticipate the type of information that will be made public. All information submitted by PRPs will be subject to public inspection (i.e., available through Freedom of Information Act requests, public dockets,' or the administrative record) unless the information meets an exemption. An example would be if the information is deemed either as enforcement sensitive by EPA, or business confidential by EPA (based on the PRPs' representations), in conformance with 40 CFR Part 2. Development of the ATSDR Health Assessment Section 104(j)(6) of CERCLA requires the Agency for Toxic Substances and Disease Registry (ATSDR) to perform health assessments at all NPL facilities according to a specified schedule. The purpose of the health assessment is to assist in determining whether any current or potential threat to human health exists and to determine whether additional information on human exposure and associated health risks is needed. The EPA remedial project manager (RPM) should coordinate with the appropriate ATSDR Regional representative for initiation of the health assessment. In general, the health assessment should be initiated at the start of the RI/FS. The ATSDR Regional representative will provide information on data needs specific to performing a health assessment to ensure that all necessary data will be collected during the RI. The RPM and the ATSDR Regional representative should also coordinate the transmission and review of pertinent documents dealing with the extent and nature of site contamination (i.e., applicable-technical memoranda and the draft RI). As ATSDR has no provisions for withholding documents, if requested by the public, the RPM must discuss the review of enforcement sensitive documents and drafts with the ATSDR Regional representative rather than to hand them over, to ensure EPA's enforcement confidentiality. Further guidance on coordination of RI/FS activities with ATSDR can be found in the document entitled 23 ------- "Guidance for Coordinating ATSDR Health Assessment Activities with the Superfund Remedial Process" (March, 1987 - OSWER Directive No. 9285.4-02). Development of the Oversight Plan EPA will review RI/FS plans and reports as well as provide field oversight of PRP activities during the RI/FS. To ensure that adequate resources are committed and that appropriate activities are performed, the EPA will develop an oversight plan that defines EPA responsibilities, identifies RI/FS products to be reviewed, and lists activities that EPA will oversee. In preparing the plan, EPA should consider such factors as who will be doing the oversight and the schedule of activities that will be monitored. A tracking system for recording PRP milestones and cost estimates should be developed. This system should also track third party activities and other appropriate cost items such as travel needs. Identification and Procurement of EPA Assistance In accordance with Section 104(a)(1) EPA mus£ arrange for a third party to assist in oversight of the RI/FS. The following section provides guidance for identifying and procuring such assistance for EPA activities. o Assistance for EPA Activities As specified in Section 104(a)(1), EPA is required to contract with or arrange for a qualified person to assist in oversight of the RI/FS. Qualified individuals are those.groups with the professional qualifications, expertise, and experience necessary to provide assurance that the Agency is conducting appropriate oversight of PRP RI/FS activities. Normally, EPA will obtain oversight assistance through the Technical Enforcement Support (TES) contract issued through the Office of Waste Programs Enforcement or occasionally through the Remedial Action (REM) contracts issued through the Office of Emergency and Remedial Response. The latest version of the TES User; Guidq (January 1986) contains detailed instructions regarding access to these contracts. In some cases oversight assistance nay be provided by States through the use of Coopera- tive Agreements. Oversight assistance may also be obtained through tHe U.S. Army Corps of Engineers or other governmental agencies; interagency Agreements should be utilized to obtain such assistance. 24 ------- APPENDIX III REVIEW AND OVERSIGHT OF THE RI/FS Review of Plans. Reports, and Records EPA will review all RI/FS products which are submitted to the Agency as specified in the Work Plan or Administrative Order (or Consent Decree). PRPs should ensure that all plans, reports, and records are comprehensive, accurate, and consistent in content and format with the NCP and relevant EPA guidance. After this review process, EPA will either approve or disapprove the product. If the product is found to be unsatisfactory, EPA will notify the PRPs of the discrepancies or deficiencies and will require corrections within a specified time period. o Project Plans EPA will review all project plans that are submitted as deliverables in fulfillment of the Agreement. These plans include the Work Plan, the Sampling and Analysis Plan (including both the Field Sampling Plan and the Quality Assistance Project Plan), and the Health and Safety Plan. If the initial submittals are not sufficient in content or scope, the RPM will request that the PRPs submit revised document(s) for review. When all required project plans have been reviewed and accepted, EPA will give approval for the PRPs to commence field activities and other tasks designated in the Work Plan. The PRPs may be required to develop additional Work Plans or modify the initial Work Plan contained in or created pursuant to the Agreement. These changes may result from the need to: (1) re-evaluate the' RI/FS activities due either to changes in or unexpected site conditions, (2) expand the initial Work Plan when additional detail is necessary, or (3) modify or add products to the Work Plan based on new information (e.g., a new population at risk). EPA will review and approve all Work Plans and/or modifications to Work Plans as soon as they are developed and submitted for review. o Reports PRPs will, at a minimum, submit monthly progress reports, technical reports (including a summary of RI activities, a summary of the development and screening of alternatives, and results of treatability studies), and the draft and final RI/FS reports as required in the Agreement. To assist in the development of the RI/FS and review of documents, additional deliverables may be specified by the Region and included in the 25 ------- Agreement. These reports and deliverables will be reviewed by EPA to ensure that the activities specified in the Order (or Decree) and approved Work Plan are being properly implemented. These reports will generally be submitted according to the conditions and schedule set forth in the Agreement. Elements of the PRP reports are discussed below. Monthly Progress Reports - The review of monthly progress reports is an important activity performed during oversight. These reports should provide sufficient detail to allow EPA to evaluate the past and projected progress of the RI/FS. PRPs should submit these written progress reports to the RPM. The report should describe the actions and decisions taken during the previous month and activities scheduled during the upcoming reporting period. In addition, technical data generated during the month (i.e., analytical results) should be appended to the report. Progress reports should also include a detailed statement of the manner and extent to which the procedures and dates set forth in the Agreement/Work Plan are being met. The draft "Guidance For Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988) lists suggested procedures for PRPs to use in managing and documenting RI/FS performance through progress reports. Generally, EPA will determine the adequacy of the performance of the RI/FS by review-ing the following subjects discussed in progress reports: o Technical Summary-of Work The monthly report will describe the activities and accomplishments performed to date. This will generally include a description of all field work completed, such as sampling events and installation of wells; a discussion of analytical results received; a discussion of data review activities; and a discussion of the development, screening, and detailed analysis of alternatives. The report will also describe the activities to be performed during the upcoming month. o Schedule EPA will oversee PRP compliance with respect to those schedules specified in the Order (or Decree). Delays, —- with the exception of those specified under the Force Majeure clause of the Agreement, may result in penalties, if warranted. The RPM should be immediately notified if PRPs cannot perform required activities or cannot provide the required deliverables specified in the Work Plan. In addition, PRPs should notify the RPM when circumstances may delay the completion of any 26 ------- phase of the work or when circumstances may delay access to the site. PRPs should also provide to the RPM, in writing, the reasons for, and anticipated duration of, such delays. Any measures taken or to be taken by the PRPs to prevent or minimize the delay should be described including the timetables for implementing such measures. Budget The relationship of budgets to expenditures is to be tracked where the RI/FS is funded with a financial mechanism established by the PRPs. If site activities require more funds than originally estimated, EPA must be assured that the PRPs are financially able to undertake additional expenditures. While EPA does not have the authority to review or approve a PRP budget, evaluating costs during the course of the RI/FS, allows EPA to effectively monitor activity to ensure timely completion of RI/FS activities. If the PRPs run over budget, EPA must be assured that they can continue the RI/FS activities as scheduled. Therefore, PRPs should submit budget expenditures and all cost overrun information to the EPA. Budget reports need not present, dollar amounts, but should indicate the relationship between remaining available funds and the estimate of the costs of remaining activities. Problems Any problems that the PRPs encounter which could affect the satisfactory performance of the RI/FS should be brought to the immediate attention of EPA. Such problems may or may not be a force majeure event, or caused by a force majeure event. EPA will review problems and advise the PRPs accordingly. Problems which may arise include, but are not limited to: Delays in mobilization or access to necessary equipment; Unanticipated laboratory/analytical time requirements; Unsatisfactory QA/QC performance; Requirements for additional or more complex sampling; Prolonged unsatisfactory weather conditions; 27 ------- Unanticipated site conditions; and Unexpected, complex community relations activities. Other Reports - All other reports, such as technical reports and draft and final RI/FS reports, should be submitted to EPA according to the schedule contained in the Order (or Decree) or the approved Work Plan. EPA will review and approve these reports as they are submitted. Suggested for- mats for the RI/FS reports are presented in the draft "Guidance for conducting Remedial Investigations and Feasibility studies under CERCLA" (March 1988) . o Records PRPs should preserve all records, documents, 'and,information of any kind relating to the performance of work at the site for a minimum of six years after completion of the work and termination of the Administrative Order (or Decree). After the six year period, the PRPs should offer the records to EPA before their destruction. Document control should be a key element of all record- keeping. The following activities require careful recordkeeping and will be subject to EPA oversight: Administration - PRP administrative activities should be accurately documented and recorded. Necessary precautions to prevent errors or the loss or misinterpretation of data should be taken. At a minimum;, the following administrative actions should be documented and recorded: • Contractor work plans, contracts, and change orders; Personnel changes; - Communications between and among PRPs, the State, and EPA officials regarding technical aspects of the RI/FS; Permit application and award (if applicable); and ~"=" Cost overruns. Technical Analysis - Samples and data should be handled according to procedures set forth in the Sampling and Analysis Plan. Documentation establishing adherence to these procedures should include: 28 ------- Sample labels; Shipping forms; Chain-of-custody forms; and Field log books. All analytical data in the RI/FS process should be managed as set forth in the Sampling and Analysis Plan. Such analytical data may be the product of: Contractor laboratories; Environmental and public health studies; and Reliability, performance, and implementability studies of remedial alternatives. Decision Making - Actions or communications among PRPs that involve decisions affecting technical aspects of the RI/FS should be documented. Such actions and communications include those of the project manager (or other PRP management entity), steering committees, or contractors. o Administrative Record Requirements Section 113(k) of CERCLA requires that the Agency establish an administrative record upon which the selection of a response action is based. A suggested; list of documents which are most likely to be included in any adequate administrative record is provided in the memorandum entitled "Administrative Records for Decisions on Selection of CERCIA Response Actions" (May 29, 1987 - OSWER Directive No. 9833.3). More detailed guidance will be forthcoming, including guidance provided in the revisions to the NCP. There are, however, certain details associated with compiling and maintaining an administrative record that are unique to PRP RI/FS activities. EPA in responsible for compiling and maintaining the administrative record, and generating and updating an index. If EPA and th« PRPs mutually agree, the PRPs may be allowed to house and maintain the administrative record file at or near the site; they may TOt, however, be responsible for the actual compilation of the record. Housing and maintaining the administrative record would include setting up a publicly accessible area at or near the site and ensuring that documents remain and are updated as necessary. EPA must always be responsible for: deciding whether documents are included in the administrative record, transmitting records to the PRPs, and maintaining the index to the repository. 29 ------- The information which may comprise the administrative record must be available to the public from the time an RI/FS Work Plan is approved by EPA. Once the Work Plan has been approved the PRPs must transmit to EPA, at reasonable, regular intervals, all of the information that is generated during the RI/FS that is related to selection of the remedy. The required documentation should be specified in the Administrative Order (or Decree). The Agreement should also specify those documents generated prior to the RI/FS that: must be obtained from the PRPs for inclusion in the record file. This may include any previous studies conducted under State or local authorities, management documents held by the PRPs such as hazardous waste shipping manifests, and other information about site characteristics or conditions not contained in any of the above documents. Field Activities o Field Inspections . • . Field inspections are an important oversight mechanism for determining the adequacy of the work performed. EPA will therefore conduct field inspections as part of its oversight responsibilities. The oversight inspections should be performed in a way that minimizes interference with PRP site activities or undue complication of field activities. EPA will take corrective steps, as described in Section VII and Appendix IV, if un- satisfactory performance or other deficiencies are identified. . Several field-related tasks may be performed during oversight inspections. These tasks include: Qn-site presence/inspection - As specified in Section 104(e)(3), EPA reserves the right to conduct on-site inspections at any reasonable time. EPA will therefore establish an on-site presence to assure itself of the quality of work being conducted by PRPs. At a minimum, field oversight will be conducted during critical times, such as the installation of monitoring wells and during sampling events. EPA will focus on whether the PRPs adhere to procedures specified in the SOW and Work Plan(s), especially those concerning QA/QC procedures. Further guidance regarding site characterization activities is pr«««nted in the draft "Guidance For Conducting Remedial Investigations and Feasibility studies Under CERCLA" (March 1988), the "Compendium of Superfund field Operations Methods (OTgust 1987 - OSWER Directive No. 9355.0-14), the "RCRA Ground Water Technical Enforcement Guidance Document" (September, 1986 - OSWER Directive No. 9950.1), the NEIC Manual for Groundwater/Subsurface Investigations at Hazardous Waste Sites (U.S. EPA, 1981c), and the forthcoming "Guidance Manual on Oversight of Potentially Responsible Party Remedial Actions Under CERCLA." 30 ------- Collection and analysis of samples - EPA may collect a number of QA/QC samples including blank, duplicate, and split samples. The results of these sample analyses will be compared to the results of PRP analyses. This comparison will enable EPA to identify potential quality control problems and therefore help to evaluate the quality of the PRP investigation. Environmental Monitoring - EPA may supplement any PRP environmental monitoring activity. Such supplemental monitoring may include air or water studies to determine additional migration or sudden releases that may have occurred as a result of site activities. o QA/QC Audits EPA may either conduct, or require the PRPs to conduct (if specified in the Agreement), laboratory audits to ensure compliance with proper QA/QC and analytical procedures, as specified in the Sampling and Analysis Plan. These audits will involve on-site inspections of laboratories used by PRPs and analyses of selected QA/QC samples. All procedures must be in accordance with those outlined in The User's Guide to the Contract Laboratory Program. (U.S. EPA, 1986) or otherwise specified in the Sampling and Analysis Plan, o Chain-of-Custody Chain-of-custody procedures will be evaluated by EPA. This evaluation will focus on determining if the PRPs and their contractors adhere to the procedures set forth in the Sampling and Analysis Plan. Proper chain-of-custody procedures are described in the draft "Guidance For Conducting Remedial Investigations and Feasibility Studies Under CERCLA" (March 1988) and in the National Enforcement Investigation Center (NEIC) Policies and Procedures Manual. (U.S. EPA, 1981b). Evaluation of chain-of-custody procedures will occur during laboratory audits as well as during on-site inspections of sampling activities. Meetings Meetings between EPA, the State, and PRPs should be held on a regular basis (as specified in the Agreement) and at critical times during the RI/FS. Such critical times may include when the SOW and the Work Plan are reviewed, the RI is completed, remedial alternatives are developed and being screened prior to detailed analysis, and the draft and final RI/FS reports are submitted. These meetings will discuss overall progress, discrepancies in the work performed, problems encountered in the performance of RI/FS activities and their resolution, community relations, and 31 ------- other related issues and concerns. While meetings may be initiated by either the PRPs or EPA at any time, they will generally be conducted at the stages of the RI/FS listed below. o Initiation of Activities . EPA, the State, and the PRPs may meet at various times before field activities begin to discuss the initial planning of the RI/FS. Meetings may be arranged to discuss, review, and approve the SOW; to develop the EPA/PRP Agreement; and to develop, review, and approve the Work Plan. o Progress EPA may request meetings to discuss the progress of the RI/FS. These meetings should be held at least quarterly and will focus on the items submitted in the monthly progress reports and the findings from EPA oversight activities. Any problems or deficiencies in the work will be identified and corrective measures (see Section VIII and Appendix IV) will be requested. o Closeout EPA may request a closeout meeting upon completion of the RI/FS. This meeting will focus on the review and approval of the final"RI/FS report, termination of the RI/FS Agreement, and any final on-site activities which the PRPs may be required to perform. These activities may include maintaining the site and ensuring that fences and warning signs are properly installed. The transition to remedial design and remedial action will also be discussed during this meeting. Special Studies EPA may determine that special studies related to the PRP RI/FS are required. These studies can be conducted to verify the progress and results of RI/FS activities or to address a specific complex or controversial issue. Normally, special studies are performed by the PRPs; however, there may be cases in which EPA will want to conduct the independent studies. The PRPs should be informed of any such studies and given adequate time to provide necessary coordination of site personnel and resources. If not provided Tor in the Agreement, modifications to the Work Plan may be required. 32 ------- APPENDIX IV CONTROL OF ACTIVITIES Identification of Deficiencies Oversight activities may identify unsatisfactory or defi- cient PRP performance. The determination of such performance may be based upon findings such as: o Work products are inconsistent with the SOW or Work Plan; o Technical deficiencies exist in submittals or other RI/FS products; o •; Unreasonable delays occur while performing RI/FS : activities; and o Procedures are inconsistent with the NCP. 4 Corrective Measures The need to perform corrective measures may arise in the event of deficiencies in reports or other work products, or unsatisfactory performance of field or laboratory activities. When deficiencies are identified corrective measures may be sought by: (1) notifying the PRPs, (2) describing the nature of the deficiency, and (3) either requesting the PRPs to take whatever actions they regard as appropriate or setting forth appropriate corrective measures. The following subsections 'describe this process for each of the two general types of activities that may require corrective measures. o Corrective Measures Regarding Work Products Agency review and approval procedures for work products generally allow three types of responses: (1) approval, (2) approval with modifications, and (3) non-approval. Non-approval of a work product (including project plans) immediately constitute a notice of deficiency. EPA will immediately notify the PRPs if any work product is not approved and will explain the reason forjsuch a finding. Approval with modifications will not lead to a notice of deficiency if the modifications are made by the PRPs without delay. If the PRPs significantly delay in responding to the modifications, the RPM should issue a notice of deficiency to the PRP project manager detailing the following elements: 33 ------- A description of the deficiency or a statement describing in what manner the work product was found to be deficient or unsatisfactory; Modifications that the PRPs should make in the work product to obtain approval; A request that the PRPs prepare a plan, if necessary, or otherwise identify actions that will lead to an acceptable work product; A schedule for submission of the corrected work product; An invitation to the PRPs to discuss the matter in a conference; and • . f •'• ' A. statement of the possibility of EPA takeover at the PRPs expense, EPA enforcement, or penalties (as appropriate). 4 o Corrective Measures Regarding Field Activities When the lead-Agency discovers that the PRPs (or their contractors) are performing the RI/FS field work in a manner that is- inconsistent with the Work Plan, the PRPs should be notified of the finding and asked .to voluntarily take appropriate corrective measures. The request is generally made at a progress meeting, or, if immediate action is required at a special meeting held specifically to discuss the problem. If corrective measures are not voluntarily taken, the RPM should, in conjunction with appropriate Regional Counsel, issue a notice of deficiency containing the following elements: A description of the deficiency; A request for an explanation of the failure to perform satisfactorily and a plan for addressing the necessary corrective measures; A statement that failure to present an explanation may be taken as an admission that there is no valid explanation; An invitation to discuss the matter in a conference (where appropriate); A statement that stipulated penalties may accrue or are accruing, project termination may occur, and/or civil action may by initiated if appropriate actions are not taken to correct the deficiency; and 34 ------- A description of the potential liabilities incurred in the event that appropriate actions are not taken. Modifications to the Work Plan/Additional Work Under the Administrative Order (or Consent Decree), PRPs agree to complete the RI/FS, including the tasks required under either the o-riginal Work Plan or the 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 Work Plan is often required and therefore provided for in the Order (or Decree). 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 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 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 identified.' To facilitate negotiation on these points, EPA may consider one or more of the following provisions in the Agreement for addressing such situations: Specifying the dispute resolution process for modified Work Plans and additional work requirements; Defining the applicability of stipulated penalties to any additional work which the PRPs agree to undertake; and, , - Defining the limits of additional work requirements. Dispute Resolutions As discussed elsewhere in this guidance, the RI/FS Order (or Decree) d«v«loped between EPA and the PRPs sets forth the terms and conditions for conducting the RI/FS. An element of this Agreement 1m a statement of the specific steps to be taken if a dispute arises between EPA (or its representatives) and the PRPs. These steps should be well defined and agreed upon by all signatories to the Agreement. A dispute with respect to the Order (or Decree) is followed by a specific period of discussion wi^h the-PRPs. After the discussion period, EPA issues a final decision which becomes incorporated into the Agreement. Administrative Orders should 35 ------- clarify that with respect to all submittals and work performed, EPA will be the final arbiter. The court, on the other hand., is the final arbiter for Consent Decrees. 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. Section 121 provides up to $25,000 per day in stipulated penalties for violations of a Consent Decree while Section 122 allows EPA to seek or impose civil penalties for violations of Administrative Orders.3 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, should be specified as stipulated penalties in the Agreement to avoid negotiations on this point which may delay the correction. The amounts should be set pursuant to the criteria of Section 109 and as such must take into account the nature, circumstances, extent, and gravity of the violations as well as the PRPs ability to pay, prior history of violations, degree of culpability, and the economic benefit resulting from noncompliance. Additional information on stipulated penalties can be found in OECM's "Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees (September 27, 1987) . • " .. Project Takeover • Generally, EPA will consult with PRPs to discuss deficiencies and corrective measures. If these discussions fail, EPA has two options: (1) pursue legal action to force the PRPs to continue the work, or (2) take over the RI/FS. If taking legal action wi-11 not significantly delay implementation of necessary remedial or removal actions, EPA may commence civil action against the noncomplying PRP to enforce the Administrative Order. Under a Consent Decree, the matter would be presented to the court in which the Decree was filed to enforce the provisions of the Decree. If a delay in RI/FS activities endangers public health and/or th« •nvironment or will significantly delay implementation of necessary remedial actions, EPA should move to replace the PRP activities__with Fund-financed actions. The RPM will take the appropriate steps to assume responsibility for the RI/FS, including issuing a stop-work order to the PRPs and notifying the EPA remedial contractors. In issuing stop work orders, RPMs should be aware that Fund resources may not be automatically 3 In order to provide for stipulated penalties in an Administrative Order the parties must voluntarily include them in the terms of the Agreement. 36 ------- 37 ------- |