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
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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;
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#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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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)).
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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
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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.
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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).
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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.
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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.
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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
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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,
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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
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"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.
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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
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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
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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;
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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:
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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.
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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."
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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
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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.
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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:
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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
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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
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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.
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