Environmental Protection
             Office o»
             Solid Waste and
             Emergency Response
 3EPA
DIRECTIVE NUMBER:
                              9836.0-1A
            TITLE: Community Relations during enforcement activities
            and development of the administrative record.
                          NOV -3 1988
            APPROVAL DATE:
            EFFECTIVE DATE:   NOV "3 l988
            ORIGINATING OFFICE: Waste Programs Enforcement
            D FINAL
            TDRAFT
              LEVEL OF DRAFT
                53 A — Signed by AA or OAA
                L^IB — Signed by Office Director
                Q C — Review & Comment
            REFERENCE (other documents):
>!/!/£/?       OSWER       OSWER
  DIRECTIVE    DIRECTIVE    Dl

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      AEPA
          United States Environmental Protection Agency
                 Washington. OC 20460
OSWER Directive Initiation Request
1. Directive Number

 9836.0-1A
                                  2. Originator Information
      Name of Contact Person
       Julie Klaas
                             1  V^aste Pgms. Enfant.
                                                 '
      3. Tide
          Community Relations during enforcement activities and development of  the
          administrative record.
      4 Summary of Directive (inc.'uie oner statement of pursose)
          This is Chapter VI of Community Relations in Superfund;  A. Handbook,  and is
          intended to discuss enforcement community relations.   It includes discussions
          on developing community relations plans, the relationship between the admin-
          istrative record for response selection and community relations, and  community
          relations during specific enforcement actions and settlements.	
      5. Keywords  public notice and comment periods,  de minimis, cost recovery,  removals,
        ccntnunity relations plans and interviews;  administrative record,  public  participatic
      Sa. Does This (Directive Supersede Previous Qirective(S)?
                                            ' No   | wl Ves    What directive (number, title)
        9836.0 and 9836.0-la
      b. Does It Supplement Previous Oirective(s)?
                                             No
                                    Yes   What directive (number, title)
      T. Draft Level
      ^5^  A - Signed by AA/DAA        8 - Signed by Office Director       C - For Review & Comment
                                                           D - In Development
8.
Document to
be
distributed
to
States
by Headquarters? 1 xxi Yes


No
This Request Meets OSWER Directives System Format Standards.
9. Signature) of Lead Office Directives Coordinator
/yai&rju, -??£ sjAfet*^
10. Name and Title of Approving Official
Date .
i/'e/W
Date
     EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
  OSWER           OSWER               OSWER               O
/E     DIRECTIVE         DIRECTIVE        DIRECTIVE

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              UNITED STATES ENVIRONMENTAL PROTECTION'AGENCY
                         WASHINGTON, D.C.  20460
                             NOV   3 !SS3
                                                          OFFICE OF
                                                  SOLID WASTE AND EMERGENCY RESPONS
                                                 OSWER DIRECTIVE
                                                 No.  9836.0-1A
MEMORANDUM
SUBJECT:  Chapter  6  ofthe Community Relations Handbook
             /•  //**&->,
FROM:     J. Wfnstoti Porter
          Assistant  Administrator
TO:
Regional Administrators
Regions I-X
     When the revised version of  Community Relations in
Suoerfund;  A Handbook went  to print  this  summer,  Chapter 6 was
not yet in final form.  This Chapter,  "Community Relations during
Enforcement Activities and Development of  the Administrative
Record", is attached in interim final form.   Please insert it
into the Handbook in lieu  of the  prior version (August, 1985).

     The Chapter deserves  wide distribution to the technical and
enforcement branches, Office of Regional Counsel,  and Office of
Public/External Affairs, as  well  as to States.  Chapter 6
stresses the importance of the team approach to managing
community relations at enforcement-lead sites, and discusses the
concepts of confidentiality  in negotiations,  public participation
requirements under SARA, and community relations coordinator
responsibilities regarding the administrative record.

Attachment

cc:  Bruce Diamond, OWPE
     Henry Longest, OERR
     Elaine Stanley, OWPE
     Lloyd Guerci, OWPE
     Russel Wyer, OERR
     Lisa Friedman, OGC
     Glenn Unterberger, OECM
     Nancy Firestone, DOJ
     Regional Counsels, Regions I-X
     Waste Management Division Directors,  Regions  I-X
     Regional Community Relations Coordinators

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                    OSWER DIRECTIVE 9836.0-1A
                            CHAPTER 6
        COMMUNITY RELATIONS DURING ENFORCEMENT ACTIVITIES
          AND DEVELOPMENT OF THE ADMINISTRATIVE RECORD
6.1   BACKGROUND AND INTRODUCTION

6.2   APPLICABILITY

6.3   OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM

6.4   COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND
      ADMINISTRATIVE RECORDS

   6.4.A   Planning Community Interviews and
           Developing Community Relations Plans

           1. Community Interviews
           2. Community Relations Plans (CRPs)
           3. Potentially Responsible Party (PRP) Involvement

   6.4.B   Enforcement Activities and Community Relations at
           Remedial Sites

           1. Introduction
           2. Notice to PRPs
           3. Negotiations
           4. Community Relations Following an RI/FS Order
           5. Public Notice and Comment on Consent Decrees for
              RD/RA
           6. Community Relations During PRP Remediation
           7. Technical Discussions

   6.4.C   Community Relations During Removal Actions

   6.4.D   Community Relations During Specific Enforcement
           Actions and Settlements

           1. Consent Decrees, De Minimis and Cost Recovery
              Settlements
           2. Injunctive Litigation
           3. Cost Recovery
           4. Interaction with RCRA and other applicable Federal
              and state laws

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                   OSWER DIRECTIVE 9836eO-lA

   6.4.E   The Administrative Record as Part of Community
           Relations

           1.  Overview
           2.  Purpose of the Administrative Record
           3.  Community Relations Coordinator
               Responsibilities for the Administrative Record
           4*  Additional Community Relations Coordinator
               Responsibilities
           5;  Relationship Between the Administrative Record
               and Information Repositories

6.5   Appendix:  Environmental Fact Sheet, "The Enforcement
              Process:  How It Works"

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                       OSWER DIRECTIVE 9836.0-1A

           COMMUNITY  RELATIONS  DURING ENFORCEMENT ACTIVITIES AND
                   DEVELOPMENT OF THE ADMINISTRATIVE RECORD*
 6.1   BACKGROUND  AND  INTRODUCTION

      The Comprehensive Environmental Response, Compensation and
 Liability Act  (CERCLA) as  amended, provides the U.S.
 Environmental  Protection Agency (EPA) with the authority to
 respond directly or  to compel potentially responsible parties
 (PRPs) to respond to releases or threatened releases of hazardous
 substances/ pollutants or  contaminants.  CERCLA created two
 complementary  programs aimed at achieving this goal.

      Under the first program a trust fund, known as the
 Super fund, may be available for site r.emediation when no viable
 PRPs  are found or when PRPs fail to take necessary response
 actions.  PRPs are defined as parties identified as having owned
 or operated hazardous substance sites, or who transported or
 arranged for disposal or treatment of hazardous substances,
 pollutants or  contaminants at such sites.  The second program
 provides EPA with the authority to negotiate settlements, to
 issue orders to  PRPs directing them to take necessary response
 actions, or to sue PRPs to repay the costs of such actions when
 the trust fund has been used for these purposes.  The actions EPA
 takes to reach settlement  or to compel responsible parties to pay
 for or undertake the remediation of sites are referred to as the
 Superfund enforcement process.

      This chapter includes an overview of the CERCLA enforcement
 program, and a discussion  of enforcement activities, community
 relations, and the administrative record.  It provides specific
 discussions on community interview planning and development of
 community relations  plans  (CRPs) for enforcement-lead sites;
 enforcement activities requiring public participation; community
 relations during specific  enforcement actions and settlements;
 and the relationship between the administrative record for
 response selection and community relations.  The chapter is
 intended to discuss  only how enforcement activities should be
 considered during overall  community relations program planning
 and implementation.  In developing this chapter, the Agency
 refrained from repeating information contained elsewhere in the
Handbook.*
*This memorandum replaces current OSWER Directives 9836.0 and
9836.0-la, and is the new Chapter 6 of the Community Relations in
Superfund;  A Handbook  (hereinafter referred to as the Handbook).
                                1 •••

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                   OSWER DIRECTIVE 9836.0-1A

6.2  APPLICABILITY

     This policy applies to all Fund-financed, Federal
enforcement, CERCLA-funded State enforcement, and PRP-lead
removal and remedial actions, as defined in the National
Contingency Plan (NCP).  The information contained in this
chapter is consistent with and serves to implement the NCP.   It
creates no rights and/or obligations of any party.

6.3  OVERVIEW OF THE CERCLA ENFORCEMENT PROGRAM
                          *•
     A primary goal of CERCLA is to compel PRPs to remediate
sites that are releasing or threatening to release hazardous
substances into the environment.  The enforcement process may
involve the following major efforts.

     First, EPA attempts to identify PRPs as early as possible.
Where practicable, EPA generally notifies these parties of their
potential liability for response work when the site is scheduled
for some action;  EPA will then encourage PRPs to do the work.

     If the PRPs are responsive and EPA believes the PRPs are
willing and capable of doing the work, EPA will attempt to
negotiate an enforcement agreement with the PRP(s).  The
enforcement agreement may be an agreement entered in court  (e.g.,
a judicial consent decree) or it may be an agreement signed by
EPA and the PRPs outside of court (an administrative order on
consent).  Both of these agreements are enforceable in a court of
law, and are subject to EPA oversight of the work performed by
PRPs.

     If a settlement is not reached, EPA can use its authority to
issue a unilateral administrative order, which directs PRPs to
perform removal or remedial actions at a site.  If the PRPs do
not respond to an administrative order, EPA has the option of
filing a law suit to compel performance.

     Finally, if PRPs do not perform the response action and EPA
undertakes the work, EPA may file suit against PRPs to recover
money spent by EPA from the Super fund.  This  is known as cost
recovery, and is a major priority under the CERCLA program.

     The Appendix to this chapter, a fact sheet on the
enforcement process, explains in simple terms the tools and
authorities provided by CERCLA, and the methods EPA may use to
negotiate settlements with PRPs.

     EPA must strive to help communities understand Superfund
program goals and activities, including enforcement actions.   In
this effort, the lead agency needs to consider the concerns of
the local community.  By identifying community concerns, the
Agency can attempt to develop alternatives to response actions or

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                   OSWER DIRECTIVE 9836.0-1A

a variation to a remedial action plan that may better meet the
needs of the local residents.
 6.4  COMMUNITY RELATIONS RELATED TO ENFORCEMENT ACTIVITIES AND
     ADMINISTRATIVE RECORDS

     In  fostering community relations during enforcement actions,
 Community Relations Coordinators (CRCs) should follow the same
 essential steps as for Fund-financed actions.  The planning steps
 that are critical to community relations are conducting community
 interviews and developing community relations plans  (CRPs).  Once
 the CRP  has been developed, the CRC and other members of the site
 team should insure that implementation follows this CRP.  The
 administrative record file can be used to insure that the public
 knows what is happening at the site, as well as how to get
 involved in determining what happens at the site.  This chapter
 emphasizes the enforcement aspects of these activities and
 recognizes the possibility of PRP interest in participating in
 these and other activities.

 6.4.A  Planning Community Interviews and Developing Community
       Relations Plans fCRPs)

 6.4.A-1  Community Interviews

     In  addition to general preparation for community interviews
 (see Chapter 3 of the Handbook), community relations staff should
discuss  the site with other Regional staff in order to identify
what special precautions, if any, should be taken in the course
of conducting the community interviews (e.g., sensitivity to
pending  litigation or the political climate of the community).
By discussing the site with regional technical and legal staff in
advance  of the community interviews, community relations staff
can be apprised of any situations that might impact on these
interviews.  With or without viable PRPs, the Remedial Project
Manager  (RPM) should participate in the community discussions.

     The regional comunity relations staff, with the RPM or
enforcement staff, conducts discussions with different groups
before developing the CRP.  It is important to note that some
interviews may already have been conducted in the community as
part of  the listing process for the National Priorities List
 (NPL).    These discussions, however, dp not replace community
discussions held during development of a CRP.  The information
sought during the CRP development covers specific areas that are
not necessarily discussed - or asked - during the listing
process.  Also, CRCs are not, nor should they be, investigators
of PRP actions at the site.  During community discussions, if
information is volunteered, the CRC should advise the resident
that enforcement officers will follow up on this information.

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                   OSWER DIRECTIVE 9836.0-1A

     To incorporate the full range of views, lead agency staff
may consider interviewing PRPs in the community.  Every site
varies and so also do PRPs, their contribution to the site, and
their standing in the community.  In some cases, only the current
owner or operator is contacted.  The enforcement team for the
site will determine who to interview.  This team is comprised of
a CRC, the on-scene coordinator, regional counsel, the RPM, the
Enforcement Project Manager (EPM), as well as equivalents at the
State level when the State has the lead.

6.4.A-2  Community Relations Plans

     Using information obtained during the community interviews,
the lead agency develops a community relations plan (CRP) that
reflects consideration of the concerns and communication methods
preferred by the community.  The CRP format is fully described in
Chapter 3 and Appendix B of the Handbook.  In addition, the CRP
includes two appendices; the first presents EPA's contact list of
key community leaders and interested parties.  Note that the list
of community contacts will not be in the Appendix if it contains
private citizens' addresses and phone numbers.  On the other
hand,, public agencies, elected officials, and local groups'
addresses can be included in the administrative record and
information repositories.  The second appendix outlines suggested
locations of meetings, the administrative, record and information
repositories.  These are all public information.

     The CRP is a critical planning tool for lead agency staff
and for the public, as it will likely reach and impact many
people.  CRPs prepared for sites with viable PRPs should receive
input from all members of the enforcement team who are directly
affected by the scheduled activities in the CRP.  For example,
attorneys should approve the accuracy of any legal information;
the RPM cr EPM should approve the accuracy of any technical
information; and the CRC should approve the accuracy of the
community relations techniques used in the CRP.  The CRC is
ultimately responsible for insuring that the community relations
requirements of CERCLA/SARA are implemented.  Therefore final
approval of the CRP should be by the CRC, with concurrence on
specific sections by members of the team.

     Coordination activities among the CRC, on-scene coordinator,
regional counsel, the RPM, and the EPM, depend on the
site-specific situation.  The key initially is to plan activities
and establish procedures for reviewing information.  Adequate
planning should prevent the release of information that might be
detrimental to the settlement and/or litigation process.
Internal discussions with all team members during project
planning may be a useful mechanism for guarding against such
releases.  This need for coordination is perhaps the most  crucial
message put forth in this guidance.  Although EPA must share
information about a site'with the people directly affected by the

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                    OSWER DIRECTIVE  9836.0-1A

 site,  this information  exchange  should be technical and not
 legalistic,  and should  be coordinated so as not to jeopardize
 negotiations with PRPs.

     Community relations activities outlined in a CRP for an
 enforcement  site should be consistent with the settlement process
 and  the  likely schedule of enforcement actions.  Techniques
 peculiar to  enforcement sites  (such as the technical discussions
 outlined in  Section 6.4.B-7) may be identified in the CRP as
 community relations activities.   [Within the various sections and
 appendices of a CRP,  the CRC staff  may wish to document EPA's
 approach to  coordinating and sharing information with PRPs.
 However,  any special  conditions  on  Agency interaction with the
 PRPs should  be spelled  out in  the administrative order or consent
 decree,  not  in the CRP.   The public must be told early if PRPs
 are  willing  to participate in  implementing the CRP.  The CRC
 staff  can do this by  preparing a fact sheet or stating this at a
 public meeting.]   Discussions  about the PRPs prior to signing a
 consent  agreement,  however, can  cause delays in the negotiations.
 It is  preferrable to  delay discussing details of PRP involvement
 with the site until some agreement  is signed or action taken.  If
 the  PRPs are to be a  part of the community relations program,
 early  comments can cause tension and mistrust between Agency
 staff  and the PRP.

     Assuming a site  has not been referred for litigation, the
 CRP  only needs to inform the public of the possibility of
 litigation.   CRC staff  may choose to describe the litigation
 process,  and discuss  the potential  effects of litigation on the
 scope  of community relations activities.  If the site is referred
 later  for litigation, the CRP  is to be modified to provide that
 statements about the  litigation, other than public information
 that can be  ascertained from court  files, must be cleared with
 the  Department of Justice before issuance.  The regional counsel
 team member  will  be the focal  point for that clearance, as well
 as for consulting with  DOJ on  statements concerning site status,
 such as  investigations,  risk assessments and response work.  The
 plan will  be amended  to reflect  any potential effects this could
 have on  community relations activities.  When referral for
 litigation is,the initial enforcement action, the original
 community  relations plan should  specify the activities that are
 to be  conducted during  litigation,  to the extent they can be
 determined at that  time.   Section 6.4.D-2 of this policy
 discusses  the litigation process.

 6.4.A-3  Potentially  Responsible Party fPRPl Involvement

     EPA is  the lead  agency for  developing and implementing
 community  relations activities at an EPA "PRP-lead" site.  A PRP
may  assist in the  implementation of community relations
 activities at the discretion of  the Regional office.  The
Regional office, however,  will oversee PRP community relations
 implementation.  Specifically, PRPs may be involved in community

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                   OSWER DIRECTIVE 9836.0-1A

relations activities at sites where they are conducting either
the remedial investigation/feasibility study (RI/FS),  or the
remedial design/remedial action (RD/RA), or both.   If a PRP will
be involved in community relations activities,  the CRP should
reflect that involvement.  In these cases, the PRPs may wish to
participate in public meetings, or in the preparation of fact
sheets.  EPA, however, will not "negotiate" the contents of press
releases with PRPs.

     When complete and final, the CRP should be provided to all
interested parties, and placed in the administrative record file
and information repository for the particular site.  If the CRP
is revised, the final revised copy should be made available to
the public, and placed in the administrative record file and the
information repository, as well.

6.4.B  Enforcement Activities and Community Relations at
       Remedial Sites

     The following subsections present an overview of the notice
process leading to the initiation of RI/FS or RD/RA negotiations,
community relations following an RI/FS order, public comment on
RD/RA consent decrees, community relations during PRP
remediation, and technical discussions.

6.4.B-1  Introduction

     Community relations activities should be planned as early in
the process as possible.  Generally, this occurs before the RI/FS
special notice, which is discussed below.  Meetings with small
groups of citizens, local officials and other interested parties
are extremely helpful for sharing general information and
resolving questions.  These meetings also may serve to provide
information on EPA's general enforcement process, perhaps through
distribution of the fact sheet attached to this guidance.  A
discussion of how EPA encourages settlements may be appropriate
at this time.

     Litigation generally does not occur until after the remedy
is selected  (after the moratorium period that begins when the
special notice for RD/RA ends, as discussed below).  EPA staff,
however, may need to explain early in  the process that legal
constraints may apply during negotiations or litigation with
respect to community relations activities.

6.4.B-2  Notice to PRPs

     Notice letters are used to inform PRPs of their potential
liability and provide an opportunity for them to enter into
negotiations, which are intended to result in PRPs conducting or
financing response activities.  The negotiation process may
include "informal" and "formal" negotiations.

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                    OSWER DIRECTIVE  9836.0-1A

      EPA has established a  discretionary three-step notification
 process to facilitate  and encourage settlements at remedial
 sites.   First,  well before  the  RI/FS starts, EPA usually sends a
 general notice  to PRPs.   Second,  a  special notice for the RI/FS
 may be  sent in  appropriate  circumstances.  Third, a special
 notice  for the  RO/RA may be sent, where appropriate.

      The general  notice  advises PRPs of possible liability.  The
 special notices initiate formal negotiations and invoke a
 moratorium on EPA conducting the  RI/FS or response action, while
 encouraging PRP participation in  response activities at a site.
 For remedial sites,  RI/FS special notices should be issued at
 least 90 days before EPA plans  to obligate Fund money for the
 RI/FS.   For an  RD/RA,  the preferred approach is to issue special
 notices at the  time the  FS  and  proposed work plan are released
 for public comment,  although notice may be issued after the
 Record  of Decision (ROD)  is signed.   Once the special notice is
 sent, a 60-day  moratorium on EPA's  conduct of certain response
 activities is triggered.  If a  "good faith" offer is not received
 within  60 days, EPA may  proceed with its own RI/FS or removal, or
 take enforcement  action  against the PRP.  If a good faith offer
 is  received,  EPA's goal  is  to conclude RI/FS negotiations with an
 administrative  order on  consent within 90 days of the RI/FS
 special notice.   RD/RA negotiations are targeted for conclusion
 with an RD/RA consent  decree within 120 days of the RD/RA special
 notice.   These  are statutory moratorium periods.  The timeframe
 for the RD/RA special  notice moratorium may be extended for 30
 days by the Regional Administrator  and beyond that by the
 Assistant Administrator,  OSWER.   Special educational efforts
 should  be conducted prior to negotiation/ moratorium to warn the
 public  that little if  any information will be available to the
 public  during negotiations  (see below).

      Detailed guidance on issuance  of notice letters is discussed
 fully in the "Interim  Guidance  on Notice Letters, Negotiations,
 and Information Exchange" (October  19, 1987), 53 FR 5298  (OSWER
 Directive 19834.1).

 6.4.B-3   Negotiations

      Negotiations are  generally conducted in confidential
 sessions between  the PRPs and the Federal government.  Neither
 the public,  nor the  technical advisor (if one has been hired by a
 community)  may  participate  in negotiations between EPA, DOJ and
 the PRPs  unless everyone  agrees to  allow such participation.
 Otherwise  the ability  of  the parties to assert confidentiality
 at  some  later date may be affected.

     The  confidentiality  of statements made during the course of
negotiations is a  well-established  principle of our legal system.
Its purpose  is to  promote a thorough and frank discussion of the
 issues between the parties  in an  effort to resolve differences.

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                   OSWER DIRECTIVE 9836.0-1A

Confidentiality not only limits what may be revealed publicly,
but also ensures that offers and counter-offers made in the
course of negotiations may not and will not be used by one party
against the other in any ensuing litigation.

     Potentially responsible parties may be unwilling to
negotiate without the guarantee of confidentiality.  They may
fear public disclosure regarding issues of liability and other
sensitive issues which may damage their potential litigation
position or their standing with the public.  This expectation of
confidentiality necessarily restricts the type and amount of
information that can be made public.

     CRC staff should consult with and obtain the approval of
other members of the technical enforcement and regional counsel
team before releasing any information regarding negotiations.  If
the site has been referred or is in litigation> DOJ approval
should also be obtained.  In lieu of direct participation by the
public in negotiation sessions, the CRC staff may wish to send
out the fact sheet on the Superfund .enforcement process attached
to this guidance, along with the moratorium schedules for that
specific site.

6.4.B—4  Community Relations Following an RI/FS Order

     As discussed above, RI/FS settlements usually are resolved
as administrative orders on consent.  For remedial sites, an
RI/FS workplan is a trigger for implementation of community
relations activities.  When the workplan is complete, a
"kick-off" meeting with the public may be conducted in order to
present the final workplan and explain the next steps.  If held,
CRC staff should make it clear that EPA approved the workplan;
announce how the PRP will be performing the RI/FS; explain EPA's
oversight role; discuss the enforcement process and
confidentiality requirements; and explain where EPA's record
files will be/or are located.  As discussed in section 6.4.E, the
administrative record file will be available at a central
regional location, and at or near the site.  Since it contains
information which the lead Agency uses in selecting a final
remedy, the administrative record file should be used as a tool
to facilitate public involvement.

     Once the RI/FS has been completed, the agency will issue the
proposed remedial action plan, and publish a notice announcing a
public comment period.  At a minimum, the notice must be
published in a major local newspaper of general circulation,  A
formal comment period of not less than 21 calendar days must be
provided for the public to submit oral and written comments.
Note that proposed revisions to the National Contingency Plan
(NCP) suggest extending this to not less than 30 calendar days.

     An opportunity for a public meeting is also required to be
offered during the comment period, as well as a transcript of the

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                    OSWER  DIRECTIVE 9836.0-1A

meeting  on the  proposed plan.  The transcript must be made
available  to  the  public in the administrative record, and may be
distributed in  the  information repositories and on request.  See
Chapter  4  of  the  Handbook for a complete outline of these
specific public participation requirements.

     Once  the public comment period on the proposed plan has
closed,  a  responsiveness  summary  is prepared which serves two
purposes.   First, it provides lead agency decision-makers with
information about community preferences regarding both the
remedial alternatives and general concerns about the site.
Second,  it demonstrates to members of the public how their
comments were taken into  account  as an integral part of the
decision-making process.  A Record of Decision (ROD) is then
issued by  EPA as  the final remedial action plan for a site.  Both
the ROD  and the responsiveness summary will be placed in the
administrative  record file and other information repositories.
In addition,  the  responsiveness summary may be distributed to all
those who  commented and to the entire site mailing list.  See
Chapter  4  of  the  Handbook for further information on requirements
for public notice and availability of the ROD and responsiveness
summary.

6.4.B-5  Public Notice and Comment on Consent Decrees for RD/RA

     If  a  negotiated settlement for remedial action under CERCLA
section  106 is  reached, it will be embodied in a proposed consent
decree (to be entered by  a court).  CERCLA section 122(d)(l)
requires the  use  of consent decrees as the vehicle of agreement
between  the Federal Government and PRPs on remedial actions taken
under section 106 of CERCLA.  CERCLA section 122 contains
specific public participation requirements.  The Department of
Justice  lodges  (provides  a copy of) the consent decree with the
court, publishes  a  notice of the proposed consent decree in the
Federal Register, and offers an opportunity for non-signatories
to the agreement  to comment on the proposed consent decree before
its entry  by  the  court as a final judgment.  The public comment
period must not be  less than 30 calendar days in length and may
be extended if  warranted.  The proposed consent decree may be
withdrawn  or  modified if  comments demonstrate it to be
inappropriate,  improper or inadequate.

     In order to  ensure that public comment opportunities are
extended to interested parties, EPA staff routinely prepare a
press release to be issued after the consent decree has been
lodged as  a proposed judgment with the court.  DOJ should notify
the regional  counsel for  the particular site and provide a copy
of the Federal  Register notice of the decree.  Regional counsel
will assure that the RPM  and CRC are informed of this event.  CRC
staff can  then  mail copies of the press release or copies of the
Federal Register notice to persons on the site mailing, list.  The
press release should indicate that copies of the consent decree
document may  be obtained, including its location and that of any

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                   OSWER DIRECTIVE 9836.0-1A

other relevant documents.  The procedures for public comment on
the consent decree, as well as a contact name for obtaining
further information, should also be announced.  The public notice
and press release  for the consent decree may be combined, if
appropriate.

     The ROD and responsiveness summary have usually been made
public by this time.  However, inasmuch as comments previously
were requested on  the proposed plan, comments are requested only
on the consent decree.  Communications with the public should
focus on the remedial provisions of the settlement agreement.
Details of the negotiations, such as the behavior, attitudes, or
legal positions of PRPs, any compromises incorporated in the
settlement agreement, and evidence or attorney work-product
material developed during negotiations, must remain confidential.

     If a negotiated settlement for RD/RA results in actions
fundamentally different from those selected in the ROD, the ROD
will have to be amended.  An amendment to a ROD also requires a
public comment period, which should coincide if possible, and be
held jointly with, the comment period for the consent decree.

     A public meeting may be held during the public comment
period, at the site team's discretion.  Regional staff must offer
the opportunity for a public meeting when there are significant
community issues or concerns, or for other reasons which are
determined by and  based upon the judgment of EPA regional staff.
If held during the public comment period, these meetings need to
be documented, and significant oral comments received during the
meeting must be addressed in the responsiveness memorandum on the
consent decree.

     Once the public comment period on the proposed consent
decree has closed, DOJ staff (in cooperation with EPA staff) must
consider each significant comment and write a response.  Assuming
that EPA and DOJ continue to believe the decree should be
entered, DOJ will  then file a Motion to Enter with the court, the
responsiveness memorandum, the comments received, and the consent
decree itself.  The responsiveness memorandum and motion to enter
the consent decree are released to the public at the same time.
The Regional team  will use information repositories,
administrative record files, and/or other means to make these
documents available to the public.

6.4.B-6  Community Relations Purina PRP Remediation

     EPA retains responsibility for community relations during a
PRP-managed remedial action pursuant to a consent decree or any
enforcement order.  The scope and nature of community relations
activities will be the same as for Fund-lead response actions.
When PRPs participate in community relations activities at the
site, EPA and PRP  roles need to be determined and explicitly
defined.  Where a  PRP has not been involved in the initial stages

                                10

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                    OSWER DIRECTIVE 9836.0-1A

 of implementing the community relations plan, but shows
 sufficient interest,  commitment and capability to warrant some
 level  of participation,  EPA  should re-evaluate its role in
 conducting community relations activities.  In that case, a new
 CRP may be developed at  the  discretion of the regional team.  PRP
 roles  in conducting community relations may also be addressed in
 the consent decree  or other  enforcement orders.

 6.4.B-7  Technical  Discussions

     Technical  meetings  are  considered informational, and provide
 orientation to  the  enforcement process.  One of the objectives in
 holding technical meetings is to describe, instruct, and explain
 how the remedy  may  or will (depending on whether a ROD has been
 signed)  address the conditions of the site.  Workshops exploring
 the approach to the site and project status, can occur at any
 point  up to and beyond remedy selection. If held during RI/FS or
 RD/RA  negotiations,  they should be separated from the legal
 discussions.  The RPM may host a technical discussion without PRP
 concurrence; however,  willingness by the PRPs to participate may
 facilitate a more open and honest dialogue with the community.

     Technical  information must be documented and available for
 the public in the administrative record file.  Technical or
 factual  information which comes up during negotiations should
 also be  included in the  administrative record file.  Issues of
 liability,  however, are  appropriately discussed only during
 negotiations between  EPA and PRPs, and should not be included in
 the administrative  record file.

     Technical  assistance grants are authorized under section
 117(e) of  CERCLA, which  allows EPA to make grants available to
 communities  affected  by  a release or threatened release at an NPL
 site.  Community groups  may  use these grants to obtain assistance
 in  interpreting technical information on the nature of the hazard
 and recommended alternatives for investigation and cleanup.

 6.4.C  Community Relations During Removal Actions

     EPA will encourage  public participation during removal
 actions to the  extent possible.  However, there will be times
 when this  participation  may  need to be constrained.  The NCP, the
 Handbook,  and Removal  Procedures establish the requirements for
 removal actions, including administrative record requirements.

     The enforcement  program encourages PRPs to conduct or pay
 for removal actions.   At any time, the Agency may arrive at an
 agreement  with  the  PRPs  to conduct a removal, which would usually
be  embodied in  an administrative order on consent.  EPA also may
 issue  a unilateral  administrative order to compel a PRP to
undertake  a removal or other action.  In addition, under limited
circumstances,   the  Agency may refer the action to DOJ, seeking a
court  order to  secure  the removal.

                                11

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                   OSWER DIRECTIVE 9836.0-1A

     By their nature, the situations that require emergency
removals do not allow for extensive public involvement.
Adjustments to the community relations process must be made to
accommodate necessary time constraints.  It is proposed in the
draft NCP that a public comment period of at least 30 days be
required for removals with a planning period of at least 6 months
before the initiation of on-site activity.  For removals with a
planning period of less than 6 months before the initiation of
on-site activity, a public comment period may be held where
appropriate.  The public comment period, if held, begins when the
record file is made available for public inspection.

     A unilateral administrative order or administrative order on
consent is a public document and should be made available to the
.affected community at a minimum, through the administrative
record file.  In addition, community relations staff should
discuss the terms of the order with and describe the removal
action to citizens, local officials, and the media.  If the PRP
subsequently fails to respond to the order, any public statements
or information releases regarding the status of actions at the
site or prospective EPA actions should first be cleared with
appropriate Regional technical and legal enforcement personnel.

     Community relations activities during removals conducted by
PRPs should be the same as for Fund-financed removals.  PRPs may•
participate in community relations, subject to the same
considerations described previously in this guidance under
Section 6.4.A-3.

6.4.D  Community Relations During Specific Enforcement Actions
       and Settlements

6.4.D-1  Consent Decrees. De Minimis and Cost Recovery
         Settlements

     Under section 122(d)(l) of CERCLA, settlements for remedial
action are to be in the form of consent decrees filed in Federal
court.  Section 122(d)(2)(B) requires DOJ to provide an
opportunity for public comment on proposed consent decrees.  This
concept is discussed in section 6.4.B-5.

     Section 122(i) of CERCLA requires the lead Agency to publish
a notice of proposed settlement, for both administrative orders
on consent under section 122(g)(4)  (de minimis settlements), and
under section 122(h)  (cost recovery settlements/arbitration).
The notice published in the Federal Register must identify the
facility concerned and the parties to the proposed settlement.

     A public comment period of not less than 30 days  is required
for these agreements.  Regional staff should provide notice
(e.g., a press release, notice to persons on the site mailing
list or an ad in the newspaper of local circulation) to
supplement the Federal Register notice.  The press release should

                                12

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                   OSWER DIRECTIVE 9836.0-1A

 provide  a  contact  for  further  information.

      The lead  agency with jurisdiction must consider any comments
 filed, and determine if the proposed settlement requires
 modification where comments demonstrate that the proposed
 agreement  is inappropriate, improper or inadequate, or can become
 effective  without  change.  The final settlement and the response
 to  comments must be released at the same time and be made
 available  to the public.  This can be accomplished by placing
 both  documents in  the  administrative record file.  The response
 to  comments document (responsiveness summary) should .also be sent
 directly to those  who  commented.  PRPs who are party to the
 settlement will receive notice from the Agency that the agreement
 will  go  into effect unchanged  or that modifications are required.
 A statement that the responsiveness summary may be obtained from
 the administrative record file or upon request should be added to
 this  notice.

 6.4.D-2  Iniunctive Litigation

    At any point in the enforcement process, a case may be
 referred to DOJ for litigation, and community relations
 activities may change  in scope.  Referral is likely to occur most
 frequently for RD/RA after the moratorium has concluded.  If
 litigation is  initiated early  in the enforcement process, the CRP
 for the  site may need  to be modified substantially.  If
 litigation is  initiated late in the process (e.g., after the
 conclusion of  the  RD/RA special notice moratorium), the plan will
 require  only the addition of the litigative process.

     When  a case has been referred to DOJ, community relations
 activities at  the  site should  be re-evaluated by the site team,
 and changes necessary  to accommodate confidentiality should be
 agreed upon by the site team,  including DOJ.  While strong
 consideration  should be given  to implementing the plan as
 developed  and  previously approved, the litigation process may
 require  changes in public disclosure.  For example, the court
 may impose a gag order or place restrictions on information
 releases during negotiations or any meetings with the public to
 discuss potential  site remedy.  Under these circumstances, the
 DOJ attorney will  advise the site team on how to proceed.

 6.4.D-3  Cost  Recovery

     If a  Fund-financed cleanup is conducted, EPA may initiate
 litigation to  recover  the costs of response.  Since cost recovery
generally  follows  removal actions or initiation of remedial
action, community  interest in  the site usually will have
 lessened,  unless other operable units remain to be addressed.

     A spokesperson chosen by  the site team, in coordination with
DOJ, should take the lead in responding to inquiries regarding
current site conditions.  All  inquiries regarding litigation

                                13

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                   OSWER DIRECTIVE 9836.0-1A

should be forwarded to the EPA cost-recovery team, which will
prepare a response subject to the concurrence of DOJ.

6.4.D-4  Interaction with RCRA and other Federal and State Laws

     On May 5, 1987, the Office of Solid Waste and Emergency
Response issued guidance for public involvement in RCRA
section 3008(h) actions (OSWER Directive #9901.3).  This guidance
establishes the process for public involvement in actions taken
under section 3008(h) of RCRA.

     Section 3008(h) of RCRA, the interim status corrective
action authority, allows EPA to take enforcement action to
require cleanup at a RCRA interim status facility when the Agency
has information that there has been a release of hazardous waste
or hazardous constituents.  Two orders will frequently be used to
implement the cleanup program.  The first order requires the
facility owner or operator to conduct a Corrective Measure
Study/RCRA Facility Investigation (RFI/CMS), similar to the
RI/FS.  Once the remedy has been selected, a second order.
requires design, construction, and implementation of that remedy.

     The RCRA guidance outlines both minimum public involvement
requirements and expanded public involvement suggestions.  In
many ways the RCRA guidance uses procedures and ideas drawn from
the Superfund community relations program.  Thus, coordination
between Superfund and RCRA personnel at sites where actions under
both CERCLA and RCRA are anticipated is appropriate.  Superfund
CRCs may want to become familiar with this guidance and with the
RCRA Public Involvement Coordinators to ensure that the Agency
presents a coordinated approach.

     Familiarity with other Federal or state laws such as the
Clean Air Act, Clean Water Act, etc. will generally make the role
of the CRC easier, for frequently many media are represented at a
hazardous waste site.  A general knowledge of Federal or state
requirements may help the CRC in conversing with the public.

6.4.E  Thfl A/flinini?frrative Record As Part of Community Relations

6.4.E-1  Overview

     Section 113(k)(l) of CERCLA requires the establishment of an
administrative record upon which the selection of a response
action is based.  It also requires that a copy of the
administrative record be located at or near the site.  Section
113(k)(2) of CERCLA requires that the Agency promulgate
regulations outlining procedures for interested persons to
participate in developing the administrative record.  The Agency
is addressing these statutory requirements through revisions to
the NCP and through the development of a guidance document.

     Throughout the decision-making process, from remedial

                                14

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                    OSWER DIRECTIVE  9836.0-1A
                          o

 investigation to selection  of  remedy, the administrative record
 file will  be available  for  public inspection at a central
 regional location and at or near the site.  The information in
 the file is  crucial to  the  public in that it contains the
 information  upon which  the  lead Agency bases its decisions toward
 selecting  a  final remedy.   Community relations staff should use
 the administrative record file as a tool for facilitating public
 involvement.

      Publicly-available documents concerning response selection
 must be made available  to all  interested parties at the same
 time.  EPA staff should avoid  situations where local residents
 are provided opportunities  to  review and comment on site
 information  and  other members  of the public are not provided the
 same opportunity.   Similarly,  if EPA requests PRPs to review a
 plan, EPA  should enable other  members of the public to review
 that plan  as  well.   When a  kick-off meeting is scheduled to
 explain the  final workplan   id obtain opinions, the public,
 including  residents and PRPs,  should be invited.

      The administrative record file and CRP for a remedial action
 should be  made available to the public no later than the time the
 remedial investigation  phase begins, which is usually when the
 RI/FS workplan is approved.  The timing for establishing the
 administrative record file  for a removal action will depend on
 the nature of the removal.   As proposed in the draft NCP, for
 removals with a  planning period of  at least six months before
 on-site activities will be  initiated, the record file must be
 made available to the public when the engineering evaluation/cost
 analysis (EE/CA),  or its equivalent, is available for public
 comment.   For removals  with a  planning period of less than six
 months, the record file must be available to the public no later
 than 60 days  after the  initiation of on-site cleanup activity.

 6.4.E-2  Purpose of the Administrative Record

     The administrative record has  a two-fold purpose.  First,
 the record provides an  opportunity  for the public to be involved
 in  the process of selecting a  response action.  During the
 selection  of  a response action, information is reviewed and made
 available  in  the publicly accessible administrative record file.
 Second, if the Agency is challenged concerning the adequacy of a
 response action,  judicial review of a response action selection
will be limited  to the  administrative record.  By limiting
 judicial review  to the  record, a court's review is based upon the
 same information that was before the Agency at the time of its
decision.  The public should be advised that their comments must.
be  submitted  in  a  timely manner in  order to be considered.
                                15

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                   OSWER DIRECTIVE 9836.0-1A

6.4.E-3  Comnmijtv Relations Coordinator Responsibilities for the
     The OSC/RPM and regional attorney, with the support of the
administrative record coordinator, are responsible for deciding
which documents are to be included in the administrative record,
and ensuring its adequate compilation and maintenance.  The
Regional Administrator or his designee is responsible for the
certification of the record for litigation.  CRCs will have some
general duties in developing the record file, but every region
has defined different roles.  In general, however, the CRC duties
will center on the relationship of the administrative record file
to the information repositories, public notices and public
comments.

     First, CRCs and administrative record staff must coordinate
the location of the administrative record file and information
repositories.  The statute requires that the administrative
record be available at or near the facility at issue, and that
information be available for public inspection and copying.  If*
the information repository does not contain a copying facility,
the Region or State may want to make arrangements for copying the
record file.  EPA, however, is not required to copy the
information for interested persons.

     Second, the notice of availability for the administrative
record must be published in a major local newspaper of general
circulation.  A copy of the public notice must also be placed in
the administrative record file and may be made available to the
public through the community relations mailing list.  (See the
Overview section above for a discussion of when the
administrative record file must be made available to the public.)
This notice may be combined with other notices of availability
depending on the timing of activity at a site, e.g., a notice of
availabilty of the information repository.  Where appropriate, a
notice of availability of the record file or of commencement of
the public comment period may be published in the Federal
Register.  The public is not notified each time a document is
added to the record file.  These notices should be coordinated
between the CRC and administrative record staff in order to use
resources most efficiently.  For a more complete discussion of
the notice of availability, see the Guidance on Administrative
Records for Selection of CERCLA Response Actions  (OSWER Directive
#9833.3A).

     Third, the completed CRP must be placed in the
administrative record file.  Community Relations Coordinators
must advise the Administrative Record Coordinator that the CRP is
final and provide him/her with a copy.

    Fourth, information contained in records of communication
that were generated by the community relations staff and
considered or relied on in selecting a response should be

                                16

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                    OSWER DIRECTIVE 9836.0-1A

 included in the record file.   In addition,  superfund CRCs  should
 take appropriate steps to ensure that any community relations
 documents that are required to be placed in the administrative
 record file are provided to the Regional official responsible for.
 the record file.

      Fifth, the text of all comments,  criticisms and new
 information submitted by the public,  including PRPs,  during  the
 public comment period must be included in the record file.   A
 response to all significant comments  (i.e.,  the responsiveness
 summary)  must also be placed in the administrative record  file.
 The responses may be combined by subject or other category in the
 record file.

      The record file should reflect the Agency's consideration of
 all significant public comments.   The  Agency has no duty to
 respond to comments it receives during a  formal comment  period
 until the close of that formal public  comment period.  If  the
 Agency chooses to respond to  a comment made prior to a formal
 public comment period,  the response must  be included in  the
 record file.   The Agency may  suggest that comments submitted
 prior to  a formal public comment period be resubmitted during the
 comment period if the commenter desires a response.   Or  the
 Agency may notify a commenter that the Agency will respond to the
 comment in a  responsiveness summary prepared at a later  date.

      Comments which are received after the formal comment  period
 closes and before the decision document is signed should be
 included  in the record file but labeled "late comment."  Since a
 responsiveness summary may already have been prepared at this
 point,  the Agency must respond to late comments only if  they
 contain significant new information not contained elsewhere  in
 the administrative record which could  not have been submitted
 during the public comment period,  and  which substantially  support
 the need  to significantly alter the response action.

      Comments received after  the decision document is signed
 should be placed in a post-decision document file.   They may be
 added to  the  record file if:   the documents concern issues
 relevant  to the selection of  the response action that the
 decision  document does not address or  reserves to be decided at a
 later data; or where there is a significant change in a  response
 selection which is addressed  either by an explanation of
 significant differences,  or in an amended decision document.  The
 Guidance  on Administrative Records cited  above gives additional
 information in this regard.

 6.4.E-4   Additional Community Relations Coordinator
          Responsibilities

      Because  of  regional  differences CRCs may have additional,
general responsibilities,  including:


                                17

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                   OSWER DIRECTIVE 9836.0-1A

        Assessing the impact of the administrative record file
        on local information repositories by consulting with
        officials at the repositories.  This must be done in
        coordination with the Administrative Record Coordinator.
        CRCs should advise the public where the administrative
        record file is located.

        Providing the Administrative Record Coordinator with
        information as to how to notify the public of the
        availability of the record file.  This notification may
        be in addition to the newspaper notice.

        Making available the transcript of the local meeting on
        the proposed plan, as required under section 117(a) of
        CERCLA.

        Providing assistance to the Administrative Record
        Coordinator to ensure that final comments made by EPA on
        important documents generated by the State or a Federal
        facility are documente'd in writing and submitted to the
        State or Federal facility staff for inclusion in the
        administrative record file.  States and Federal facility
        staff will compile and maintain the administrative record
        files for those sites.

All staff involved in Superfund activities must become familiar
with the administrative record requirements.

6.4.E-5  Relationship Between the Administrative Record and
         Information Repositories

    Section 113(k)(l) of CERCLA requires that "the administrative
record shall be available to the public at or near the facility
at issue."  Duplicates of the administrative record may be placed
at any other location.  The original files concerning response
action selection should be located at the EPA Regional office.  A
copy of these files must be located at or near the site.  The
draft NCP proposes that an exception be made for emergency
removal actions where on-site activities cease within 30 days of
initiation.

     Section 117(d) of CERCLA requires that "each item developed,
received, published, or made available to the public under
section 117 shall be available for public inspection and copying
at or near the facility at issue."  These items are generally
included in the information repository.

     The administrative record file at or near the site at issue
should be located at one of the information repositories that
already may exist for community relations purposes.  The
information repository, maintained by the Community Relations
Coordinator, may contain additional information of interest to
the public, that is not necessarily part of the administrative

                                18

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                    OSWER  DIRECTIVE 9836.0-1A

record  file  (e.g.,  press  releases and newspaper articles).
Documents  in the  administrative  record file should be separated
from the other materials  in the  information repository.

     EPA typically  uses local  libraries, town halls, and public
schools as locations  for  establishing repositories and
administrative record files because they are publicly accessible.
In some instances,  the volume  of information available for
community  relations and administrative record purposes may be
larger  than  the capacity  of these locations.  Where the space of
the information repository is  inadequate for supporting the
administrative record file, an alternate location for the
administrative record file should be established.  Administrative
Record  Coordinators should estimate the volume of information
expected to  be included in the repository and meet with
appropriate  local officials to discuss space requirements.  In
some situations,  separate locations may have to be established.
Administrative Record Coordinators and CRCs must inform one
another of any additional information placed in these separate
locations  to ensure uniformity.  CRCs should carefully review
their responsibilities for the .administrative record (Section
6.4.E-3).

     Each  administrative  record  file must be indexed.  This index
identifies all the  documents which comprise the record file, and
lists those  documents which do not have to be present in the
record  file  because of their voluminous nature (raw data for
example),  but which are considered part of the record.  Their
location must be  provided.  This index is part of the record file
and must be  available at  each  record file location.

     Finally, interested  parties should be able to easily find
the document(s) they  need.  Documents in the administrative
record  file  should  be well organized.  The CRC and administrative
record  staff should coordinate with the State in closing
information  repositories  and record files at the end of operation
and maintenance,  and  following a five-year review.
                                19

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EPA
                       United States
                       Environmental Protection
                       Agency
   Office of Solid Waste
   and Emergency Response
   Washington, D.C. 20460
                       Office of Waste Programs Enforcement
                                Summer
                       Environmental
                       Fact  Sheet
                       The  Superfund  Enforcement
                       Process: How  It Works
INTRODUCTION

In 1980, Congress passed the Comprehensive Environ-
mental Response,  Compensation  and  Liability  Act
(CERCLA), commonly called Superfund. This law pro-
vides the U.S. Environmental Protection Agency (EPA)
with the authority and necessary tools to respond directly or
to compel potentially responsible parties (PRPs) to respond
to releases or threatened releases of hazardous substances,
pollutants or contaminants. CERCLA created two parallel
and complementary programs aimed at achieving this goal.

The first program involves the creation of a trust fund
financed through a special tax on the chemical and petro-
leum industries. This trust fund, known as the Superfund,
may be available for site remediation when no viable PRPs
are found or when PRPs fail to take necessary response
actions. PRPs are defined as parties identified as having
owned or operated hazardous substance sites, or who have
transported or arranged for disposal or treatment of hazard-
ous substances, pollutants or contaminants at such sites. The
second program provides EPA with the authority to negoti-
ate settlements, to issue orders to PRPs directing them to
take necessary response actions, or to sue PRPs to repay the
costs of such actions when the Trust Fund has been used for
these purposes. The actions EPA takes to reach settlement
or to compel responsible parties to pay for or undertake the
remediation of sites are referred to as the Superfund enforce-
ment process. CERCLA was reauthorized and amended on
October 17, 1986,  by the Superfund Amendments and
Reauthorization Act (SARA). SARA provides EPA with
new authorities and tools that strengthen the enforcement
program.
            LIST OF ACRONYMS

   CERCLA:   Comprehensive Environmental Response,
            Compensation and Liability Act of 1980
   IAQ:      Interagency Agreement
   NBAR:     Non-binding Allocation of Responsibility
   NPL:      National Priorities List
   PRP:      Potentially Responsible Party
   RCRA:     Resource Conservation and Recovery Act,
            as Amended
   RD/RA:    Remedial Design/Remedial Action
   RI/FS:     Remedial Investigation/Feasibility Study
   ROD:      Record of Decision
   SARA:     Superfund Amendments and
            Reauthorization Act of 1986
This fact sheet describes the enforcement authorities and the
process that is followed under the Superfund program. It de-
scribes the options available to EPA for remediating hazard-
ous waste sites; the tools and mechanisms that EPA may use
in negotiating  settlements with PRPs,  and describes the
decision-making process at enforcement sites.

OVERVIEW OF THE ENFORCEMENT
PROGRAM

A major goal of the Superfund program is to encourage PF
to remediate hazardous waste sites. The enforcement proc-
ess normally used by EPA to enlist PRP involvement may
•include five major efforts.

                                          1

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                SUPERFUND REMEDIALJENFORCEMENT PROCESS

                                     ~  REKOYAi, ACTIONS   *"
                            i®* PFBOR TO ORO«RJ«Q THE aEREWAt PROCESS
                                  , , PUBUC PARTICJPATION ;    : v
                               CAKoccim DW«B«S AWV REMEKAt PHASE
 To understand the enforcement process, it is necessary to under-
 stand the Superfund remedial process.  Under the remedial pro-
 gram, EPA takes long-term actions to stop or substantially
 reduce releases or threats of releases of hazardous substances
 that are serious but not immediately life-threatening. Removal
 actions, which are short-term, immediate actions intended to
 stabilize a hazardous incident or remove contaminants from a
 site that pose a threat to human health or welfare or the environ-
 ment, may be taken at any point in the remedial process.

 The Superfund process begins with a preliminary assessment/
 site inspection (PA/SI). This usually is conducted by the State,
 to determine whether the site poses a significant enough poten-
 tial hazard to warrant further study and investigation.

    site is then ranked using the Hazard Ranking System (HRS),
 a numerical ranking system used to identify the site's potential
 hazard to the environment and public health. Sites assigned an
HRS score of 28.5 or above are added to the National Priorities
List(NPL).

Next, a remedial investigation (RT) is conducted to assess the
extent and nature of the contamination and the potential risks. A
feasibility study (FS) is then prepared to examine and evaluate
various remedial alternatives.

Following a public comment period on EPA's preferred altema-
tive and the draft FS report, EPA chooses a specific remedial plan
and outlines its selection in the Record of Decision (ROD).

Once the remedial design (RD) (which includes engineering
plans and specifications)  is completed, the actual site work, or
remedial action (RA) can begin. After RD/RA activities have
been completed, the site is monitored to ensure the effectiveness
of the response. Certain measures require ongoing operation or
periodic maintenance.
First, EPA attempts to identify PRPs as early in the Super-
fund process as possible. Once identified, EPA will notify
these parties of their potential liability for response work
when the site is scheduled for some action.  Second, in the
course of identifying response work to be done, EPA will
encourage PRPs to do the work at a site.

Third, if EPA believes tile PRP is willing and capable of
doing the work, EPA will attempt to negotiate an enforce-
ment agreement with the PRP(s). The enforcement agree-
ment may be an agreement entered in  court (such as a
judicial  consent decree) or it may be an administrative
order (where  EPA and the PRP(s) sign  an agreement
outside of court). Both of these agreements are enforce-
able in  a court of law.  Under both agreements EPA
        the PRP.
Fourth, if a settlement is not reached, EPA can use its
authority to  issue a unilateral administrative order or
directly file suit against the PRP(s). Under either course
of action, PRPs are directed to perform removal or reme-
dial actions at a site.  If the PRPs do not respond to an ad-
ministrative order, EPA has the option of filing a law suit
to compel performance.

Fifth, if PRPs do not perform the response action and EPA
undertakes  the work, EPA will file suit  against PRPs,
when practicable, to recover money spent by EPA and
deposit it in the Superfund Trust Fund.  This is called cost
recovery, and it is a major priority under  the Superfund
program.

THE ENFORCEMENT PROCESS FOR
REMEDIAL ACTIONS

PRP Search and Notice

EPA is committed to strengthening efforts  to reach settle-
ments with PRPs. EPA believes that settlements are most
likely to occur when EPA interacts frequently with PRPs.

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  ENFORCEMENT AUTHORITIES

  The original Superfund program was reauthorized and expanded
  on October 17,. 1986, when President Reagan signed into law the
  Superfund Amendments and Reauthorization Act of 1986
  (SARA). TheseamendmentsmcreasedtheSuperfundTrustFund
  to $8.5 billion  and clarified  and  expanded enforcement
  authorities:

    •  Access and Information Gathering - SARA strengthens
      EPA's ability to obtain access to investigate sites and to
      obtain information from parties with knowledge of the site.

    •  Settlement  Authorities • CERCLA  authorizes EPA to
      compel a PRP to undertake necessary actions to control the
      threat of imminent and substantial endangerment to human
      health or the environment To accomplish this, EPA may
      either issue  an administrative order or bring a civil action
      against the PRP in court SARA outlines specific procedures
      for negotiating settlements with PRPs to conduct voluntary
      response actions at hazardous waste sites.

    • .Cost Recovery • Once a Fund-financed response has been
      undertaken,  EPA can recover costs from the responsible
      parties. Past and present facility owners and operators, as well
      as hazardous substance generators and transporters, can all be
      liable under Superfund for response costs and for damage to
      natural resources. EPA may recover Federal response costs
      from any or all of  the responsible parties involved in a
      remedial action. The monies recovered go back into the Fund
      for use in future response actions.

    •  Criminal Authorities - SARA increases criminal penalties
      for failure to provide notice of a release and makes submitting
      false information a criminal offense.
  • Citizen Suits - SARA authorizes a citizen to sue any person,
    the United States, or an individual State for any violation of
    standards and requirements of the law, under
    conditions.

Federal Facilities

SARA also adds a section dealing with releases of hazardous sub-
stances at Federal facilities. This provision clarifies that Super-
fund applies to Federal agencies and that they must comply with
its requirements.  SARA clearly defines the process Federal
agencies must follow in undertaking remedial responses.  At
NPL sites, EPA makes the final selection of the remedy if the
Federal  agency and EPA disagree. A Federal agency must
remediate a Federal facility through an interagency agreement
(LAG), except in emergency situations.  LAGs are enforceable
agreements between Federal agencies that are subject to the
citizen suit provisions in SARA and to section 109 penalties, if
the responding agency does not comply with the terms of the
agreement

SARA also provides a schedule for response actions at Federal
facilities, including a schedule for preliminary  assessments,
listing on the National Priorities List, remedial investigations/
feasibility studies, and remedial actions. State and local officials
also must be given the opportunity to participate in the planning
and selection of any remedy, including the review of all
States are given a formal opportunity to review remedies
ensure that they incorporate State standards.  Public participa-
tion in addressing releases at Federal facilities is enhanced by
SARA, which establishes a Federal Agency Hazardous Waste
Compliance Docket This docket functions as a repository of in-
formation for the public and is available for public inspection.
Every six months after establishment of the docket, EPA will
publish in the Federal Register a list of the Federal facilities that
have been included in  the docket during the proceeding six-
month period.
This interaction is important because it provides the oppor-
tunity to share information about the site and may reduce
delays in conducting response actions.

The enforcement process begins with the search for PRPs,
concurrent with NPL listing.

Once identified, PRPs are typically issued a general notice
letter. The general notice  informs PRPs of their potential
liability. The general notice also may include a request for
and a release of information on PRPs and the substances at
the site.  The overall purposes of the general notice are to
provide PRPs and the public with advance notice of possible
future negotiations with EPA, to open the lines of commu-
nication between EPA and PRPs, and to advise PRPs of
potential liability.

In addition to the general notices, EPA may issue a "special
notice," which invokes a temporary moratorium on certain
EPA remedial and enforcement activities. An RI/FS special
notice initiates a 90-day moratorium and an RD/RA special
notice initiates a 120-day moratorium. The moratorium
provides a period of time during which EPA and PRPs ne-
gotiate.  The goal of negotiations is for EPA and PRPs^
reach a settlement where the PRPs agree to conduct;
finance response activities. Negotiations may be terminated
after 60 days for either the RI/FS or RD/RA if PRPs do not
provide EPA with a "good faith" settlement offer.

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  Negotiations for the RI/FS
 Mixed Funding
 The PRP may conduct the RI/FS if EPA determines the PRP
 isqualified to conduct the RI/FS and if the PRP agrees to
     jburse EPA for the cost of oversight  The terms of this
     sment to conduct the RI/FS are outlined in either an
 Administrative Order on Consent or a Consent Decree, both
 of which are enforceable in court.  If negotiations do  not
 result in an order or a decree,  EPA may use Trust Fund
 monies to perform the RI/FS and seek reimbursement for its
 costs.

 Negotiations for the RD/RA

 Where a special notice is used, the moratorium for RD/RA
 may be extended to a total of 120 days.  The terms of the
 agreement to conduct the RD/RA are outlined in a Consent
 Decree, which all parties sign and is entered in court. If ne-
 gotiations do not result in a settlement, EPA may conduct the
 remedial activity using Trust Fund monies, and sue for reim-
 bursement of its costs with the assistance of the Department
 of Justice (DOT). Or EPA may issue a unilateral administra-
 tive order or directly file suit to force the PRPs to conduct the
 remedial activity.

 Administrative Record

    'information used by EPA to select a remedy at a site
 must be made available to the public. This information, in-
 cluding public comments, is compiled and maintained in the
 administrative record  files.  The administrative  record-
 serves two main purposes. First, it ensures an opportunity
 for public involvement in the selection of a remedy at a site.
 Second,  it provides a  basis for judicial review of the
 selection.

 TOOLS FOR ENFORCEMENT

 In addition to outlining the procedures for the enforcement
 process, CERCLA provides tools that are designed to help
 EPA achieve settlements. The CERCLA settlement authori-
 ties may be used by EPA to foster negotiations with PRPs
 instead of taking them to court. EPA believes that PRPs
 should be involved early in the Superfund process at a site.
 It is in the best interest of PRPs to negotiate with EPA and to
'conduct the RI/FS, as this can keep the process smooth and
 costs can be controlled. EPA actively promotes settlements
with PRPs using tools in SARA and is continuing to work
        improvements  in the settlement process itself.
      new SARA tools  include, but are not limited to:
 CERCLA authorizes the use of "mixed funding." In mixed
 funding, settling PRPs and EPA share the costs of the re-
 sponse action and EPA pursues viable non-settlers for the
 costs EPA incurred.  Through guidance, EPA discusses the
 use of three types of mixed funding arrangements. These are
 "preauthorization," where the PRPs conduct the remedial
 action and EPA agrees to reimburse the PRPs for a portion
 of their response costs; "cash-outs," where PRPs pay for a
 portion of the remedial costs and EPA conducts the work;
 and  "mixed  work,"  where EPA and PRPs both agree to
 conduct and  finance  discrete portions of a remedial action.
 EPA prefers a "preauthorized" mixed-funding agreement,
 where PRPs  conduct the work.

 EPA encourages the use of mixed funding to promote
 settlement and site remediation, but will continue  to seek
 100  percent  of response costs from PRPs where possible.
 Use of mixed funding does not change EPA's approach to de-
 termining liability. PRPs may be held jointly and severally
 liable and EPA will  seek to recover EPA's mixed funding
 share from non-settling PRPs whenever possible.

 Efi Minimis Settlements

 Pe minimis  settlements are smaller agreements separate
 from the larger settlement for the chosen remedy. Underdo
 minimis settlements, relatively small contributors of waste
 to a site, or certain "innocent" landowners, may resolve their
 liability. Innocent landowners are parties who bought prop-
 erty  without  knowing that it was used for hazardous waste
 handling.  Or EPA may enter into d£ minimis settlement
 agreements with a party where the settlement includes only
 a minor portion of the response costs and when the amount
 of waste represents a relatively minor amount and is not
 highly toxic, compared to other hazardous substances at the
 facility. De minimis settlements also may be used where the
 PRP is a site owner  who did not conduct or permit waste
 management or contribute to the release of hazardous sub-
 stances. D£ minimis settlements are typically used in con-
junction with covenant not to sue agreements. These agree-
 ments generally will be in the form of administrative orders
 on consent and are available for public comment

 Covenants Not To Sue

 A covenant not to sue may be used to limit the present and
 future liability of PRPs, thus encouraging them to reach a
 settlement early. However, agreements generally  include
 "reopeners" that would allow EPA to hold parties liable for

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conditions unknown at the time of settlement or for new in-
formation indicating that the remedial action is not protec-
tive of human health and the environment. In some cases,
such as d£ minimis settlements, releases may be granted
without   reopeners. Covenants not to sue are likely to be
used only in instances where the negotiating PRP is respon-
sible for only a very small portion of a site, and, therefore,
EPA is assured that any future problems with the site are not
likely to be the result of that PRP's contribution

Non-binding Allocations of Responsibility (NBAR)

NEAR is a process for EPA to propose a way for PRPs to
allocate  costs among themselves.   EPA  may decide to
prepare an NBAR when the Agency determines this alloca-
tion is likely to promote settlement An NBAR does not bind
the government or PRPs and cannot be admitted as evidence
or reviewed  in any judicial proceeding, including citizen
suits. Since each PRP may be held liable for the entire  cost
of response, regardless of the size of its contribution to asite,
knowing EPA's proposed allocation scheme may encourage
the PRPs to settle out of court rather than run the risk of being
held fully responsible.

STATE PARTICIPATION

The Superfund program allows for and encourages State
participation in  enforcement activities.  First, EPA is re-
quired to notify the State of negotiations with PRPs  and
provide the opportunity for the State to participate. States
may be a party to any settlement in which they participate.
In addition, EPA is authorized to provide funds to States to
allow State participation in enforcement activities and to
finance certain State-lead enforcement actions.
PUBLIC PARTICIPATION/COMMUNITY
RELATIONS

EPA policy and the Superfund law establish a strong
gram of public participation in the decision-making pro£
at both Fund-lead and enforcement sites. The procedures
and policy for public participation at enforcement sites are
basically the same as for non-enforcement sites. This fact
sheet is limited to those special differences in community
relations when the Agency is negotiating with or pursuing
litigation against PRPs.  The contact listed below has nu-
merous fact sheets on the Superfund program, including a
fact sheet on Public Involvement

Community relations at enforcement-lead sites may differ
from community relations  activities at Fund-lead sites
because negotiations between EPA, DOJ and PRPs gener-
ally focus on the issue of liability. The negotiation process,
thus, requires that some information be kept confidential
and is not usually open to the public.

When these discussions deal with new technical informa-
tion that changes or modifies remedial decisions, this infor-
mation will be documented and placed in the administrative
record files. This process provides the public with critical
information and enables the Agency to move  quickly to-
wards  settlement  Information on enforcement strat^^
details of the negotiations, such as the behavior, attitudes, or
legal positions of responsible parties; and evidence or attor-
ney work product material developed during negotiations,
must remain confidential.
   FOR MORE INFORMATION:

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