United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
Publication 9203.1-051
December 1992
Enforcement Under SACM
— Interim Guidance
Office of Emergency and Remedial Response
Office of Waste Programs Enforcement
Office of Enforcement
Intermittent Bulletin
Volume 1 Number 3
The purpose of the Superfund Accelerated Cleanup Model (SACM) is to make Superfund cleanups more timely and efficient.
This will be accomplished through more focus on the front end of the process and better integration of all Superfund program
components. The approach involves:
A continuous process for assessing site-specific conditions and the need for action;
Cross-program coordination of response planning;
Prompt risk reduction through early action (removal or remedial);
Appropriate cleanup of long-term environmental problems;
Early public notification and participation; and
Early initiation of enforcement activities.
SACM is a process change that should be considered for all Superfund activities. Implementation of this policy will be
consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and the Comprehensive
Environmental Response, Compensation, and Liability Act (GERCLA). Overall Superfund priorities remain the same: deal
with the worst problems first; aggressively pursue enforcement; and involve the public and relevant State agencies at all
appropriate stages of the work.
Overview
All actions taken under SACM must be consistent with
CERCLA and me NCP, and each response selection must
be adequately documented by an administrative record.
EPA's enforcement first policy will continue under SACM.
Potentially Responsible Parties (PRPs) are performing ap-
proximately 70 percent of the new work at NPL sites, and
EPA remains committed to maximizing PRP involvement
when applying the principles of SACM. Success-
ful enforcement under SACM will require
careful consideration of the nature and
timing of PRP participation in particu-
lar.
Major enforcement areas affected
by SACM include:
• The timing and methodol-
ogy of PRP searches;
• The timing and content of
negotiations with PRPs;
• Notice letters;
• Consultations for early actions;
• State involvement in enforcement;
Faster... C/eaner... Safer
• De minimis settlements;
• The availability and adequacy of administrative
records; and
• Cost recovery and cost documentation.
This document highlights the need to maintain an enforce-
ment first stance and discusses appropriate approaches
for addressing the issues listed above.
Enforcement First
SACM does not change the
Superfund program's emphasis on
enforcement first Coordination
of site activities, including deci-
sions and recommendations made
by the Regional Decision Team
(RDT), should anticipate the ac-
tivities required for enforcement
and ensure that they are carried
out in a timely manner so that the
response lead can be passed to
PRPs as early as possible without delaying work at the site.
EPA expects much of the early site assessment activities to
be Fund-lead. However, response lead changes can occur
at any of the following points in the process
1. During the site assessment acnvines.
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2. Prior to development of an Engineering Evaluation /
Cost Analysis (EE/CA);
3. Prior to a removal action;
4. Prior to a Remedial Investigation/Feasibility Study
(RI/FS);
5. Prior to a Remedial Design/Remedial Action (RD/
RA);and
6. Prior to an RA contract solicitation, when funding the
RA would have significant implications for the Fund
and when no significant delay will occur.
EPA may take back the response lead from a PRP when the
Agency deems a lead change would be appropriate to
maintain response integrity or to protect human health
and the environment.
The Region should identify the earliest point that the PRP
search should begin and when negotiations should occur
at each site.
PRP Searches: Timing and Methodology
Conducting adequate PRP searches can be crucial when
preparing for negotiations and other enforcement activi-
ties. EPA does not anticipate that SACM will lead to
changes in PRP searches for sites that require only emer-
gency or time-critical removal actions. However, SACM's
integrated site assessment process may lead to changes in
PRP search methodology for non-tims-critical removals
and remedial actions for several reasons. First, because an
RI may begin with or during a Site Investigation (SI),
giving PRPs an opportunity to participate in the RI/FS will
require mat PRPs be identified earlier in the process than
they are traditionally identified. Second, because the inte-
grated site assessment is envisioned to require less time to
complete than under the current process, there may be less
time to develop liability information before a non-time-
critical removal or remedial design begins. In addition, the
greater emphasis on early risk reduction is expected to
increase the use of non-time-critical removals to address
some threats that previously were addressed with reme-
dial actions. This will mean that there may be less time
available before initiation of the response than in the past.
For all of these reasons, there will be less time to conduct
the PRP search and an increased emphasis on Regions' PRP
search programs.
As a general rule, PRP search activities should begin as
soon as possible after the Region decides that a response
action is likely to be required at the site. PRP searches for
some sites, such as multi-generator landfills, may require
substantial effort. Early initiation of PRP search activities
may be valuable at these sites to ensure adequate time for
carrying out enforcement activities such as issuing general"
notice letters. Many other sites, however, may require no
action beyond the initial site assessment activities. Expe-
dited searches at these sites probably would be unneces-
sary and not cost-effective in most instances.
Once Regions have decided to begin PRP search activities,
they are encouraged to adopt a phased PRP search ap-
proach that focuses first on establishing liability for PRPs
about whom information is most readily available from
site assessment activities and other available sources and
then expands to address the remaining PRPs. If a core
group of PRPs is identified before a discrete phase of a
combined site assessment, negotiations may begin for the
conduct of data collection associated with the site assess-
ment activities (i.e., SI, RI, FS, etc.), even if the Region
believes that additional PRPs may be found later. (Keep in
mind that under the current policy, EPA has the lead
responsibility for the site assessment activities - Prelimi-
nary Assessment (PA), SI, and Expanded Site Investiga|
tion (ESI). This should continue under SACM. PRPs may
collect data, but final responsibility for interpreting that
data in reports and making site decisions remains with
EPA.) Similarly, negotiations for conducting a response
action (i.e., RD/RA, removal, etc.) may be initiated with
known PRPs even if all PRPs have not been identified.
Once potential liability has been established for the core
group, the PRP search can be extended to the remaining
PRPs whose liability is more difficult or more time con-
suming to establish. Regions should share information
with known PRPs as soon as possible to facilitate PRP
organization.
In conducting PRP searches, Regions should coordinate
and share information with other parts of the program and
with States. Where the Regional office uncovers informa-
tion on PRPs as partof an emergency or time-critical action,
the RDT should make full use of the information from these
activities to support later enforcement actions at the site.
Similarly, site assessment should include PRP search ac-
tivities such as the documentation of evidence that identi-
fies owners, operators, and witnesses; the collection of
drum label information; the identification of the location
and condition of generator records; and other activities
that may help establish liability or waste contribution. Site
assessment activities might include a more detailed or
targeted waste analysis to tie wastes to specific PRPs
Where available, Regions should make use of States' au-
thority to search for and notice PRPs. Regions
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OSWERDIR9203105IC
consider writing a generic PRP search work assignment
that can be used for a number of searches, each of which is
initiated with a separate technical direction memorandum.
Coordination of the PRP search and other site activities will
require close communication between the PRP search team
and the RDT.
Negotiations: Timing and Content
Generally, it is anticipated that by using the phased PRP
search approach and some of the additional techniques
listed above, there will be sufficient time before initiation
of non-time-critical removals and early remedial actions to
allow those actions to be PRP-lead. For example, if the RDT
decides, based on the early results of a PRP search, to
initiate a Fund-lead EE/CA to support a non-time-critical
removal action, the Region can continue PRP search activi-
ties during the EE/CA. Upon completion of the EE/CA,
the RDT can decide, based on the supplemented PRP
search, whether to seek PRP participation in the non-time-
critical removal action. There may be even more time for
the PRP search if it begins during an emergency or time-
critical removal action, or during the SI.
With the exception of non-time critical removals, it may be
appropriate in some cases to conduct additional PRP search
activities before initiating a response action at a site if the
Region believes that a more thorough PRP search will
increase the likelihood of settlement (for example, by iden-
tifying more PRPs). Any delays in work should be brief.
Establishing liability against additional PRPs may have
other benefits such as similar treatment of all PRPs, re-
duced risk of contentious cost recovery actions, and con-
servation of the Fund.
The Region should identify logical points during the site
assessment process when negotiations with PRPs should
be considered. Some of the major criteria for this decision
include:
1. PRPs:
a. the availability of viable parties for which Regions
have liability evidence;
b. the degree to which the identified PRPs appear
willing to settle; and
c. the ability of PRPs to conduct response activities.
2. Site conditions and work to be performed:
a. the risk posed by the site and the need to move
forward with the response quickly;
b. the probable sequence and nature of cleanup ac-
tivities scheduled for the site; and
c. the action to be negotiated.
3. Cost:
a. if the activity to be negotiated is a removal costing
more than $2 million, enforcement will minimize
the need forwaivers under CERCLASection 104(c);
and
b. State matching funds for remedial actions at NPL
sites are not required if PRPs conduct remedial
actions under, for example, a consent decree or
unilateral administrative order.
The following examples show some stages in the process
where negotiations may be appropriate, and the possible
scope of the negotiations:
1. The initial assessment indicates that there is a hazard-
ous substance release at the site and there is a high
probability that the site may be listed on the NPL! In
addition, some removal action is needed. In this case,
the Region could negotiate with PRPs to perform the
site assessment data collection activities —including
any necessary sampling— and the EE/CA or RI/FS.
The Region could also include performance of the
EP A-selected removal action in the negotiations. Keep
in mind that although PRPs may conduct sampling
ana data collection, EPA retains responsibility for
decision making.
2. The initial assessment indicates that a non-time-criti-
cal removal action should be taken. The Region could
negotiate an order with the PRPs for the EE/CA, and
in some cases could include the eventual non-time-
critical removal action in the order.
3. The initial assessment shows that additional site evalu-
ation is needed to determine if the site will require
any action (early action or long-term action). In most
cases EPA should continue performing the site as-
sessment activities while continuing the PRP search.
Negotiations should occur after a determination is
made that a time-critical removal, an EE/CA, or an
RI/FS is needed.
Under all of these scenarios EPA retains the responsibil-
ity to perform the risk assessment for removal and reme-
dial actions, to prepare Hazard Ranking System scoring
packages, and to make all response selection decisions.
Notice Letters
CERCLA and current EPA guidance encourage the use of
special notife letters (or issuance of waivers) for RJ/FSs
and RD/RAs. When Regions anticipate conducting a com-
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bined SI/RI/FS, they should use special notice letters if
they believe that such letters could facilitate a settlement.
Regions also should use special notice letters for non-time-
critical removals when they believe that such letters could
facilitate a settlement.
A special notice letter initiates a moratorium on response
activity and enforcement. Such moratoria generally last 90-
120 days (if EPA receives a good faith offer from the PRPs
within the first 60 days of the moratorium). Therefore,
when Regions expect that they will be issuing special
notice letters, the letters should be sent out far enough in
advance of the planned activities so that work is not
significantly delayed. Certain investigatory and planning
activities set forth in Section 104(b) of CERCLA should
occur during the negotiation moratoria.
Consultations for Early Actions
In implementing SACM, careful site and case selection is
important. When identifying appropriate sites for non-
time-critical removal actions, Regions may wish to consult
with Headquarters.
Regions must follow the existing rules for justifying and
obtaining exemptions for removal actions estimated to cost
over $2 million or exceed one year in duration. Also,
Regions must consult with Headquarters prior to takingan
early action which will require funding beyond what the
Region has in its allowance.
When a State does not participate in the conduct and
financial support of a Fund-lead non-time-critical removal
action, the RDT must evaluate whether the urgency and
need are great enough to justify the loss of the State
contribution. (Until such time as the authority for approv-
ing $2 million waivers at non-NPL sites is delegated to the
Regions, Headquarters will have to be involved in this
decision on a site-by-site basis.) Until a final policy is
developed, Headquarters will generally support projects
costing less than $5 million, as long as there is a good
justification, even if a State is unable to participate. Head-
quarters also will consider projects costing over $5 million,
but there will have to be a compelling case for undertaking
the work in the absence of a State contribution.
Ln order to ensure consistent use of non-time-critical au-
thority, Regions must consult with Headquarters on PRP-
or Fund-lead non-time-critical removals costing over $5
million.
If an early action under SACM presents particularly diffi-
cult issues or mav be controversial with States, PRPs,
communities or other interested parties, the Regions are
strongly encouraged to consult with the appropriate Re-
gional coordinator at Headquarters. Regional staff respon-
sible for public involvement may be consulted to assist in
gauging the level of public interest.
State Involvement in Enforcement
State capabilities and authorities differ. Each Region should
work with each of its States to develop a general strategy
for enforcement and the manner in which the State will be
involved. Actions planned under State enforcement-lead
must be under documents enforceable under State law and
overseen by the States. Sites may be designated as State-
lead if the Region agrees and the State has the capability
and authority under State law to undertake the action.
States should be kept informed of negotiations concerning
site assessment activities and early actions to the same
extent that they are notified and kept informed currently
under CERCLA Section 121(f) and the NCP.
Late-identified PRPs
When the decision is made to take either a Fund-lead or
PRP-lead action, and the Region expects that additional
PRPs will be identified subsequent to initiation of the
action, th- Region should take steps to provide some type
of constructive notice to PRPs who may be found at a later
date (that is, "late identified" PRPs). For example, Regions
could send letters providing information about a site to
prospective PRPs. Regions might also place an announce-
ment of site activity or of availability of the administrative
record file in a major local newspaper and the Federal
Register. (AFederal Register-notice generally would be more
effective than newspapers for reaching PRPs located out-
side the area of the site and the newspaper circulation
area.)
De Minimis Settlements
SACM is expected to produce more site information earlier
than in the past, allowing Regions to develop de minimis
settlements earlier. In some cases, Regions will pursue
PRP-lead early actions before developing the waste-in lists
and volumetric rankings normally. iceded for de minimis
settlements, making de minimis settlements at that time
less likely. In such cases, de minimis settlements may still
be developed prior to a subsequent early action decision
(Action Memorandum, Record Of Decision) when the
required information becomes available. Regions should
follow EPA guidance on early de minimis settlements
(indudingOSWERDirectiveNumber9834.7-lC)andstrive
to develop such settlements as early in the process as
possible.
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The Department of Justice
SACM does not change the delegations under CERCLA.
The Department of Justice (DOJ) should be consulted for
enforcement strategy planning when judicial enforcement
of an administrative order is likely, consent decrees are
planned, and certain de minimis and cost recovery activi-
ties are contemplated (e.g., DOJ must concur on de minimis
and cost recovery settlements where die total response
costs for a site exceed $500,000).
Administrative Records
The administrative record, required under CERCLA, con-
tains the documents that form the basis for the selection of
a response action and serves as the basis for judicial review
of EPA's response action. High quality administrative
records are necessary to ensure the defensibility of re-
sponse decisions made under the expedited procedures of
SACM and are particularly important for SACM projects
that may set precedents. Regions must establish an admin-
istrative record for each response action in accordance
with CERCLA, the NCP, andOSWERadministrative record
guidance (OSWER Directive Number 98333A-1). All deci-
sions concerning the selection of the appropriate response
action should be documented in the administrative record
file in accordance with EPA guidance. In particular, the
administrative record should indudedocumentation show-
ing that the action taken is not inconsistent with the NCP.
CERCLA also requires that EPA provide the public (in-
cluding PRPs) with an opportunity to participate in the
development of the administrative record. According to
tl.c NCP Subpart I, the administrative record file for a non-
time-critical removal must be available for public inspec-
tion when the EE/CA is made available for public com-
ment. For time-critical removals, the administrative record
file must be made available within 60 days after the start of
on-site removal activity. The administrative record file for
the selection of a remedial action must first be made
available when the RI/FS begins. When the Region is
conductingacombinedSI/RI/FS,theadministrativerecord
file must be made available at the point when work char-
acteristic of an RI/FS begins. In order for the record to be
ready for public inspection when the RI/FS begins, Re-
gions should begin compiling the administrative record
file when the RDT decides a combined SI/RI/FS is needed.
Cost Recovery and Cost Documentation
SACM may increase the number of cost recovery actions
subject to the removal statute of limitations (SOL) because
more sites may be addressed with non-time-critical remov-
als than in the past. The SOL for removals is three years
from a removal completion, unless a remedial action is
initiated within three years of the completed removal.
Early remedial actions would fall under the remedial SOL
which is six years after initiation of physical on-site con-
struction of the remedial action.
Documentation of cost and work performed needs to be
compiled whenever cost recovery actions are taken. EPA's
past costs should be sought in all negotiations with PRPs
for response work at SACM sites. The cost recovery rule is
expected to assist indefining documentation requirements.
NOTICE: The policies set out in this fact sheet are not final
Agency action, but are intended solely as guidance. They
are not intended, nor can they be relied upon, to create any
rights enforceable by any party in litigation with the United
States. EPA officials should follow the guidance provided
in this fact sheet, or may act at variance with the guidance,
based on an analysis of site-specific circumstances. The
Agency also reserves the right to change this guidance at
any time without public notice.
Enforcement Under the Superfund Accelerated
Cleanup Model (SACM) - Interim Guidance
This paper is one of five fact sheets published by EPA
under publication number 9203.1-051 (Volume 1,
Numbers 1-5) to describe the Superfund Accelerated
Cleanup Model (SACM) and should be reviewed in
conjunction with the other SACM fact sheets. Com-
ments on this document should be directed to Maria
Bywater of the Office of Waste Programs Enforce-
ment (703) 603-8929.
There are two other important sources of informa-
tion: "SACM concept paper" (8/5/92) and Guidance
on Implementation of the Superfund Accelerated Cleanup
ModelUnderCERCLAand theNCP [OSWER Directive
No. 9203.1-03 (7/7/92)]. General SACM information
can be obtained by calling the Superfund Document
Center (202) 260-9760.
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