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 ------- 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 ------- 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 ------- 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 ------- 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" ------- 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 ••• ------- 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 ------- 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. ------- 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 ------- 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 ------- 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. ------- 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. ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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. ------- 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. ------- 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 ------- 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: ------- |