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
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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
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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.
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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
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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:
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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
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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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