United States
Environmental Protection
Office of
Solid Waste and
Emergency Reioonse
EPA
DIRECTIVE NUMBER: 9992.3
TITLE:. Federal Facilities Negotiations Policy
APPROVAL DATE: August 10, 1969
EFFECTIVE DATE: August 10, 1989
ORIGINATING OFFICE: Federal Facilities Hazardous
Waste Compliance
Q FINAL
D~DRAFT
LEVEL OF DRAFT
QA Signed,by AA or OAA
D 8 Signed by Office Director
DC Review & Comment
REFERENCE (other documents):
SWER OSWER OS
DIRECTIVE DIRECTIVE Dl
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AUG I 0 1989
GPP'iCE Of
SOLID WAST- AND £\JO*"CHNCV RESPONSE
MEMORANDUM
SUBJECT.; Federal Facilities Negotiations Policy
FROM: /Jonathan Z.
Assistant
TO: Regional Administrators
Much progress has been made over the past year in establishing
new principles governing our relationship with other t'oleral
agencies we are charged to regulate. We now have speciric tools and
procedures in place to resolve RCRA and CERCLA compliance and
cleanup issues. The challenge we now face is to manage the process
so that these issues are resolved in a timely and efficient manner.
BACKGROUND
We recently concluded M^qotiations on several agreements with
the Department of Energy (DoF, ) and the Department of Defense (DoD)
under both RCRA and CERCLA." I know that you agree that these
negotiations took far too long to conclude and that negotiations
with Federal facilities, in general, are taking a disproportionate
amount of. your staff's time. I share your frustration. I believe
it is EPA's role to be a catalyst and a facilitator for obtaining
three-party agreements wir.h t. he states and other Federal agencies,
and that we must use every -->ol available to make this happen. For
these reasons, I am est.abi--.iung the following policy governing
Federal facilities negoti.if ions. This policy was developed in
consultation with your Wa.'U ? Management Divisions and Offices of
Regional Counsel.
POLICY
RCRA COMPLIANCE AGREEMENTS
The process for resolving RCRA compliance issues at Federal
facilities is described in the memorandum, Enforcement Actions-..at
Federal Facilities under RCRA and CERCLA (January 25 , 1988 OSWER
Directive Number 9392.0). /Negotiation time frames -and the process
for elevating compliance- disputes are described in the memorandum,
-------
-2-
Elevation Process for Achieving Federal Facility Compliance under
RCRA (March 24, 1988, OSWER Directive Number 9992.1)l
In all future RCRA Notices of Noncompliance (NON) to Federal
fac-ilities , Regions should include a statement notifying the
facility of the negotiation time frames established by EPA,.policy,
and the automatic elevation of disputes after 90 days or 120 days
with an extension. When a RCRA compliance dispute is elevated-
pursuant to the March 24, 1988 memorandum, the Region should
consider issuing a press release concerning the compliance status of
the facility. EPA policy concerning the use of press.;-releases ac
Federal facilities i's"' .described in EPA's Federal Facilities
Compliance Strategy.
RCRA SECTION 3008(h) ORDERS
In accordance with the January 25, 1988 memorandum, the existing
administrative procedures for issuing RCRA 3008(h) orders, as set
forth in 40 CFR. Part 24, will be applied to Federal agencies.
However, Federal agencies will have the opportunity to elevate -
disputes to the Administrator for a final decision in the event a
dispute cannot be resolved at the Regional Administrator .level 1;
CERCLA SECTION 120 AGREEMENTS
Section 120 Interagency Agreements (IAG), are complicated and
often difficult to negotiate because of the different jurisdictional
arguments raised by the negotiating parties, the scope of the
agreements relative to NPL and:non-NPL areas, the different layers
of bureaucracy involved, and the relative newness (i.e., post model)
of the negotiation process. The model language negotiated with DoD
and DOE has been helpful in moving the negotiations forward and
should continue to be used without changes or further negotiation
except to accommodate important state concerns.
The same model language should be used when negotiating CERCLA
Section 120 Agreements with Federal Agencies other than DoD and DOE.
The use of the model language would reduce the amount of timeUt
takes to negotiate the Agreement, ensure consistency among the
different Federal agencies, and reaffirm EPA's commitment, to the
model language.
lThe .guidance referenced above .;does not apply ~to .enforcement
actions.against contractor operators at Federal facilities (GOCOs)
since EPA can utilize its full range of enforcement authorities at
GOCOs to achieve compliance. The Regions-are encouraged to consider
proceeding against GOCOs and a separate GOCO enforcement strategy is
being developed.
-------
-3-
I expect that negotiations will become less protracted with
each site-specific settlement, since the parties will gain more
experience with the negotiation process, model language and
concepts. Notwithstanding recent agreements and experience gained,
however, I am still concerned that TAG negotiations take too long
and are too resource intensive. Therefore, I am establishing this
Federal facility negotiation policy to expedite the negotiation
process. This policy requires establishing deadlines for'."settlenient
and- provides for elevating unresolved disputes to Headquarters with
subsequent referral of a CERCLA §106 Administrative Order.^to the
Department of Justice (DOJ) or settlement of a two-party .agreement
between the Federal agency and EPA, as appropriate. The "po'licy is
as follows: . . ,'Y.
1) Establishing Deadlines: The first step is for the EPA" regional
office to establish a deadline for conclusion of negotiations.
This deadline is not to exceed 90 days. The deadline for
ongoing negotiations should be less than 90 days depending on
how long the negotiations have been in progress. If, most major-
issues are resolved, and prospects for agreement are good, the
deadline may be extended once for 30 days by mutual agreement
among the parties. ^.Y
Deadlines should be set in accordance with the SCAP targets and
in consultation with states. The process for establishing
deadlines is to send the Federal facility a Federal facility
version of a Special Notice Letter with a draft IAG attached
(See Attachment I: Sample Federal Facility Notice Letter).
This notice letter and draft IAG should be sent at least 30
days before the start of the targeted quarter. Regions.with
multiple targets in any given quarter should stagger* '.
deadlines to avoid elevation of Multiple lAGs at the same
time.
Since states are an integral part of the negotiations
process, they should be involved in the planning for^
establishing negotiation deadlines to assure their
availability. Regions should contact their state
counterparts and outline SCAP targets for FY89 and FY90 to
allow the states to factor these targets into their internal
planning and budget cycles. This planning process shduld be
conducted annually. Additionally, the draft IAG sent with
the Special Notice letter should have State roles reflected
in the language. The three-party version of the model
language recently sent to the Regions can be used as ,
guidance. You should discuss the incorporation of this
language into the draft IAG with the State in the course of
your initial contact.
2) Establishing scope; As part of the deadline setting process,
Regions need to address the scope of the IAG. This is
-------
-4-
imperative because the scope will often dictate the
difficult jurisdictional issues that arise. The EPA
regional office should discuss the scope with the State and
the Federal facility to determine whether either party has
specific concerns relative to the releases potentially
arddressed by the TAG. EPA's general policy is to
address all releases at a facility under a CERCLA IAG.
However, in some situations, the scope of the IAG may be
'limited "to areas on the facility that caused the facility to
b;e";listed on the MPL with the remaining releases (i.e., non-
NPL releases) to be addressed under RCRA permitting or State
enforcement. In other situations, the IAG scope could
include both RCRA and CERCLA lead activities. Scoping
decisions will most often be based on technical judgements
about the nature and location of contamination at the
facility.
3) Negotiations; To expedite the negotiation process, prior to
the start of actual negotiation, the Region should
coordinate with the Federal facility and the State to
'establish negotiation teams which are limited in number and
have authority for most negotiation decisions. After
initial negotiation sessions have occurred, it may be
effective to schedule a lengthy negotiation session of 3-5
days to address and resolve all outstanding issues. These
intensive negotiation sessions have proven to be fruitful
and an effective use of^time. It is important for Regions
to closely coordinate with the Federal Facilities Hazardous
Waste Compliance Office'(FFHWCO) during the negotiation
process by either sending the FFHWO copies of draft lAGs as
they are developed, or in some cases by including the FFHWCO
on the negotiation teanu. -Nationally - significant issues
that are tentatively agreed to in negotiations need to be
elevated to decision-makers for concurrence or further
discussion. The intent of this policy is to preclude last
minute changes to language that was previously agreed upon.
Finally, in some situations where the Region knows that a
state will raise significant issues, it may make sense to
discuss these issues and" EPA's position prior to three-party
negotiations. You should inform the Federal agency that you
are engaged in such discussions with the state.
4) Elevation; If no agreement is reached on the deadline date (up
to 90 or 120 days with extension) then the Region is to elevate
the dispute to Headquarters for a 30 day period of negotiation
antf concurrently prepare,, in, consultation with Headquarters,
either a CERCLA §106 OrderC for referral to DOJ or a two-
party agreement , depending on which is appropriate.
Headquarters will coordinate closely with .the Region during
this 30 day period.
-------
-5-
A dispute should be elevated with a recommendation for a
§106 Order when, in EPA's judgment, the Federal facility is
refusing to agree to a reasonable demand by EPA or the
State, or is failing to devote adequate resources to the
negotiating process. A dispute should be elevated with a
recommendation for a two-party IAG when, in EPA's judgment,
the Federal facility has taken reasonable positions on all
outstanding issues and the State is taking positions which
EPA or the Federal facility cannot reasonably agree to, or
the State is devoting inadequate resources to the
negotiating process.
If the dispute cannot be resolved at Headquarters within 30
days, then either the §106 Order will be referred to DOJ for
concurrence, or EPA and the Federal Agency will enter into
the two-party IAG. DOJ has agreed to a 14-day turnaround
time for review of referred §106 orders. The Region has the
flexibility of elevating a dispute to Headquarters at any
time during the established negotiation period should it
become necessary (i.e. , outstanding issues remain that
present national policy concerns which can only be resolved
in Headquarters). The Region, in the case of early
elevation, should still prepare the order or two-party
agreement. Attached is a copy of DOJ's memorandum on
concurrence procedures for §106 Orders (Attachment 2) which
can be used as guidance.
5) Planning; The Regions should establish the deadlines for
ongoing negotiations and fourth quarter SCAP targets and forward
this information to the FFHWCO within 14 days of the date of
this policy. Subsequent deadlines should be forwarded' to
the FFHWCO two weeks prior to the start of each quarter.
The FFHWCO will provide these deadlines to the appropriate
-Federal agency headquarters.
The purpose of this policy is to preclude protracted
negotiations by establishing deadlines for all parties with
consequences for failure by the Federal agency or the state to reach
settlement. I believe that in most cases 90 days is sufficient time
to successfully conclude negotiations and that the potential for a
§106 Order or two-party agreement serves as an incentive to keep all
parties at the negotiating table. The Federal Facilities Hazardous
Waste Compliance Office (FFHWCO) will continue to provide Regions
with assistance in negotiating lAGs, FFCAs, and 3008(h) orders.
Questions on this policy and the negotiation deadlines should be
referred to Chris Grundler, Director, or Gordon Davidson, Deputy
Director, or your regional coordinator within the FFHWCO at FTS 475-
9801 (mail code OS-530).
Attachments
-------
ATTACHMENT 1
FOR NPL SITES ONLY
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: Interagency Agreement for (name of site)
National Priority List Superfund Site
Dear :
The United States Environmental Protection Agency (EPA) has
identified releases or threatened releases of hazardous
substances, pollutants or contaminants at the site.
The site is a Federal facility which is owned or operated
by the (name of Federal aaencv or department) Therefore,
pursuant to Section 120 of CERCLA, the (aaencv or
department) is ultimately responsible for addressing releases
or threatened releases of hazardous substances, pollutants or
contaminants at or from the site.
This letter serves to notify (agency or department) that
EPA is prepared to negotiate an Interagency Agreement (IAG) to
formally establish that the (agency or department) will
investigate and control the releases or threatened releases of
hazardous substances, pollutants or contaminants at or from the
site pursuant to CERCLA. While the (agency or
department) is responsible for addressing the releases or
threatened releases pursuant to CERCLA, EPA intends to oversee the
Remedial Investigation and Feasibility Study (RI/FS) phases, as
part of the CERCLA remedy selection process, and the Remedial
Design and Remedial Action (RD/RA) phases of the response action
at the site. The IAG (see EPA draft enclosed) will be
developed under Section 120 of CERCLA and will reflect the
commitment of (agency or department) to conduct the RI/FS and
any remedial action needed at the site, as determined by the
RI/FS, in accordance with CERCLA, as amended, the National
Contingency Plan (NCP) and appropriate EPA Guidance.
-------
EPA has determined that establishing a pre-defined period of
time for negotiation of an IAG will facilitate the development of
the Agreement with (agency or department) and will
ultimately serve to expedite remedial action at the site.
Therefore, this letter serves as "special notice" pursuant to
Section 122(e)(l) of CERCLA, as amended, of EPA's intent to
conduct negotiations with (aaencv or department) and the State
of for the development of an IAG.
By this special notice, EPA hereby establishes a ninety (90)
day period for negotiation of the IAG. If at the end of the
ninety (90) day period an IAG is not successfully negotiated
between EPA, (agency or department) and the State, EPA may,
where appropriate, extend the negotiation period for an additional
thirty (30) days. If at the end of the ninety (90) day period (or
one hundred and twenty (120) day period, where extended by EPA) an
IAG is not successfully negotiated, EPA may issue an order to
(agency or department) pursuant to Section 106 of CERCLA, with
the concurrence of the Department of Justice, for the conduct of
the required work. Where State participation in the IAG cannot be
achieved within the ninety (90) day period (or one hundred and
twenty (120) day period, where extended by EPA), prior to EPA's
issuance of an order under Section 106 of CERCLA, EPA may, as
appropriate, attempt to negotiate a two-party IAG with the
(aaencv or department) This two-party option does not serve
as a limitation on EPA's discretion to develop and issue an order
under Section 106 of CERCLA.
In response to this special notice, please provide EPA with a
letter indicating:
o the address and telephone number of the
(agency or department) official for EPA
to utilize as a point-of-contact; and
o a statement of the (agency or
department) willingness to negotiate an
IAG.
Should such a letter not be received by EPA within fourteen
(14) days of your receipt of this letter, or should the deadline
pass without successful negotiation of an IAG, EPA will consider
the period of negotiations closed. EPA then will have the option
of issuing an order under Section 106 of CERCLA, proceeding under
other available statutory authority, or proceeding with any
appropriate off-site response using Superfund monies.
If you are already involved in discussions with State or local
authorities, engaged in voluntary action, or involved in a lawsuit
regarding this Site, you should not interpret" this letter to
advise or direct you to restrict or discontinue any such
-------
activities. Please provide a copy of your letter to any other
party involved in those discussions. You also should be aware
that EPA sill not delete the site from the National
Priorities List until the necessary remedial work has been
concluded in accordance with CERCLA and the NCP.
Your letter to EPA should be addressed to:
Site Remedial Project Manager
U.S. Environmental Protection Agency
Region
If you have any questions RPM's name can be reached at
phone number. Legal questions should be addressed to attorney's
name. at attorney's number
Thank you for your cooperation.
Sincerely,
, Director
Hazardous Waste Management Division
Enclosure
cc: Federal Department or Aaencv Headquarters
State Environmental Protection Agency
, Deputy Chief
Environmental Enforcement Section
Department of Justice
-------
- o i^epirtment of Justice
Land ar.d Natural R-sour:;s
ATTACHMENT 2
Office of th« A«M« Aaooty GmraJ ("arti/ira* 0 C. :0:JO
DEC 2 7 1988
PROCEDURES AND CRITERIA FOR DEPARTMENT OF JUSTICE CONCURRENCE
IN EPA ADMINISTRATIVE ORDERS TO FEDERAL AGENCIES
1. Purpose The purpose of these Procedures and Criteria
is to implement the responsibilities of the Attorney General (as
delegated to the Assistant Attorney General for the Land and
Natural Resources Division) under section 4(e) of the Superfund
Executive Order (EO 12580, Jan. 23, 1987) to review any ad-
ministrative order (*AO*) that the Environmental Protection
Agency (*EPA*) proposes to issue to a federal agency under
sections 104(«)(5)(A) or 106(a) of the Comprehensive Environaen-
tal Response, Compensation, and Liability Act (*CERT-A*), 42 .
U.S.C. 9604(e)(5)(A), 9606(a).
2. Procedure The EPA Assistant Administrator for Solid
Waste or, if delegated, the EPA Regional Adainistrator, should
submit the proposed AO and a referral letter to:
Assistant Attorney General
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530
with a copy to:
Chief
Policy, Legislation and Special Litigation Section
Land and Natural Resources Division
Department of Justice
Washington, D.C. 20530
The-emftexral letter should include the following informa-
tion: 3w
Jt ftateaent of the technical basis for the AO, including
all necessary findings that support the existence of an
iMinent and substantial endangeraent froa an actual or
threatened release (for an order issued pursuant f.o CERCLA
f 106(a)), or'the basis for believing that there nay be a
release or threatened release (for an order issued pursuant
to CERCLA § 104 (e)(5)(A));
-------
A statement of EPA's prior dealings with the agency and
the efforts that have been made to resolve the matter;
A statement of the objections raised by the agency in
objecting to compliance and EPA's response to those
objections;
A statement of whether there are non-federal PRPs or
government contractors responsible for the- facility and the
status of any EPA enforcement efforts against such persons;
The name and telephone number of both the EPA attorney
with line responsibility for the AO and the EPA Headquarters
contact in the Federal Facilities Hazardous Waste Compliance
Office within the Office of Waste Programs Enforcement.
Upon receipt, the Policy, Legislation and Special Litigation
Section (*PLSL*) will promptly (i) enter the proposed AO onto its
docket; (ii) review the proposed AO and advise the EPA line
attorney and the Federal Facilities Hazardous Waste Compliance
Office contact at EPA Headquarters if additional information will
be required; (iii) evaluate the proposed AO according to the
criteria listed below and prepare a recommendation for the
Assistant Attorney General. PLSL will then forward the proposed
AO and its recommendation to the Assistant Attorney General for a
decision. If the proposed AO and referral letter include all the
necessary information, the Assistant Attorney General will make
his or her decision within two weeks of receipt of the proposed
AO. The decision will be provided to the Assistant Administrator
for Solid Waste or the Regional Administrator, as the case may
be, in a letter stating the Assistant Attorney General's
concurrence, concurrence subject to conditions, or objection to
the proposed AO.
In situations where faster action is required (for instance,
where there may be an emergency that presents a direct and
immediate threat to the public health), PLSL and the Assistant
Attorney General will attempt to review the proposed AO within 24
hours. To obtain expedited review, the EPA line attorney or the
Federal Facilities Hazardous Waste Compliance office contact at
EPA Headquarters should contact PLSL by telephone at FTS 633-
1442 at tfcft earliest possible time.
3. ^^frfearta In deciding whether to issue the proposed
AO, the Assistant Attorney General will consider the following
factors: .
whether the proposed AO is consistent with EPA's
statutory authority;
the extent of prior consultation with the affected
federal agency at the appropriate levels of authority;
-------
wither any non-federal PRP
**1 appropriateness o? thJ
*g«ncy. *
In addition to the foregoing EPA
«ay raise, and the AssiItan?'
other factors that may be
an AO to the
D«f«1:ment of Justice
ROGi.K J . ' MASZULUT
Assistant Attorney General
DATED: December 27 , i9ga
;flft<>i
------- |