/
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C 20440
9834.10
087 .
SOUOWACTI AND CMIMOIMCV MIMONSf
MEMORANDUM
SUBJECT: Transmittal of Notice Letter Guidance
(Q0k£.
n tnf
PROM: Gene Lucero, Director
Office of Waste progra'jr*'Enforcement
TO: Addressees
Attached is the "Interim Guidance on Notice Letters,
Negotiations, and information Exchange." Mote that Appendix C
containing model notice letters is not included in this package,
but will be~ distributed under separate cover in the next couple
of weeks.
Attachment
Addressees:
Directors, Haste Management Divisions, Regions I,IV,v,VIl,vill
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Region III
Directors, Air and Waste Management Division, Regions II,vi
Director, Toxics and Haste Management Division, Region IX
Director, Hazardous Waste Division, Region X
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9834.10
INTERIM GUIDANCE ON NOTICE LETTERS, NEGOTIATIONS,
AND INFORMATION EXCHANGE
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9834.10
Tabl« of Contents
I. Introduction
II. Purpose and Scop* of Guidance
III. Statutory Authority
A. Settlements
B. Special Notice Procedures and Information Release
IV. Information Exchange
A. Information Requests
B. Information Release
V. Notice Letters and Negotiation Moratorium for RI/FS and
RO/RA
A. Purpose of Notice Letters
B. Ceneral Notice Letter
1. Whether to Issue General Notice
2. Timing of Ceneral Notice
3. Recipients of Ceneral Notice
4. Contents of General Notice
C. RI/PS and RO/RA Special Notice Letters
1. Whether to Issue RI/FS and RO/RA Special Notice
2. Notifying PRFs When Not Appropriate to Issue
RZ/FS and RO/RA Special Notice
3. DOJ Role in RZ/FS and RO/RA Negotiations
4. Timing of RZ/FS Special Notice
5. Timing of RO/RA Special Notice
«. Recipients of RZ/FS and RO/RA Special Notice
7. Contents of RZ/FS and RO/RA Special Notice
O. Conclusion of Negotiation Moratorium and Deadline
Management for RZ/FS and RO/RA
VZ. Notice Letters and Negotiation Moratorium for Removal
Actions
A. Notice Letters
1. Whether to Issue Notice for Removals
2. When to Use Special Notice Procedures for
Removals
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9834.10
3. Notifying PRPs When Not Appropriate To Utilizt
Special Notice Procedures for Removal*
4. DOJ Role in Removal Negotiations
5. Timing of Notice for Removals
6. Recipients of Notice for Removals
7. Contents of Notice for Removals
B. Conclusion of Negotiation Moratorium and Deadline
Management for Removals
C. Administrative Orders and Negotiation Moratorium
for Removals
VII. Disclaimer
viii. For Further Information
Appendices -
Appendix A: Timing of RD/RA Special Notice Letter
Appendix B: Settlement Process Timelines
Appendix C: Model Notice Letters (To be provided under
separate cover)
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UNITED STATES EN VIRONMENTAL PROTECTION AGENCY 9 8 3 4.1 0
WASHINGTON. O.C. 20440
nrr \ Q IQJJT o^^cio*
U^l 19 I3OI SOUOWACTI AMOtMIMQIMCV MIS'ONSE
MEMORANDUM
SUBJECT: Interim Guidance on Notice Letters, Negotiations, and
Information
Cs^
J. Ifinst
FROM: J. Ifinstoir Porter
Assistant Administrator
TO: Regional Administrators
I. INTRODUCTION
The Superfund Amendments and Reauthorization Act of 1986
(SARA) . which amends the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA). maintains the
importance of a strong Superfund enforcement program.1 In
particular. SARA emphasizes the importance of entering into
negotiations and reaching settlements with potentially
responsible parties (PRPs) to allow PRPs to conduct or finance
response actions. SARA generally codified the Agency's Interim
CERCLA Settlement Policy but also established some new
authorities and procedures that were designed to facilitate
settlements.
A fundamental goal of the CBRCLA enforcement program is to
facilitate voluntary settlements. EPA believes that such
settlements are most likely to occur when EPA interacts
frequently with PRPs. Frequent interaction is important because
it provides the opportunity to share information about a site and
may reduce) delays in conducting response actions caused by the
lack of communication. Important mechanisms for promoting
interaction and facilitating communication between EPA and PRPs
include issuing notice letters, entering into negotiations, and
exchanging information with PRPs.
1 CERCLA of 1980 as amended by SARA of 1986 is referred to
in this guidance as CERCLA.
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9834.10'
This guidance replace* the October 12. 1984 guidance on
"Procedures for Issuing Notice Letters" and the October 9, 1985
guidance on "Timely Initiation of Responsible Party Searches,
Issuance of Notice Letters, and Release of Information." *
Although certain procedures and the timing of various activities
have been modified, this guidance retains many fundamental
aspects of the October 12, 1984 and October 9, 198S guidances.
In particular, this guidance re-emphasizes the importance of
timely issuance of notice letters and the exchange of information
between EPA and PRPs. In addition, this guidance incorporates a
moratorium and "formal" period of negotiation (referred to as a
negotiation moratorium) into the settlement process. EPA's
commitment to carrying out these activities is crucial for
supporting our fundamental goal of facilitating negotiated
settlements.
XX. PURPOSE AND SCOPE OF GUIDANCE
The purpose of this guidance is to assist the Regions in
establishing procedures for the issuance of notice letters to
PRPs, for the conduct of negotiations between EPA and PRPs, and
for the exchange of information between EPA and PRPs.
This guidance addresses the use of both "general" and
"special" notice letters for removal and remedial actions.
Special notice letters differ from general notice letters because
special notices trigger the negotiation moratorium. The
negotiation moratorium is the period of time where a moratorium
is imposed on certain EPA actions and a period of "formal"
negotiations is established between EPA and PRPs.
Use of both general and special notice letters are
discretionary. However, the Regions are expected to issue
general and special notices for the vaa. majority of remedial
actions. Such notice letters will be issued for remedial
investigations/feasibility studies (RX/FSs) and remedial
designs/remedial actions (RD/RAs). Although it is generally
appropriate to issue a "removal notice" for all removal ections.
the Regions) are not expected to invoke the 1122(e) special notice
procedure* for most removals.
This guidance also addresses the timing, duration, and
conclusion of the negotiation moratorium. Finally, this guidance
discusses the process of information exchange between EtA and
PRPs, including requests for and releases of site-specific
information.
* These guidances were issued under OSWBR Directive Numbers
9834.1 and 9834.2, respectively.
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9834.10
. STATUTORY AUTHORITY
A. SETTLEMENTS
Soctiono 10
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9834.10
addition, thio ooetion provides for EPA to make ouch information
avniloblo in advance of tho special notice upon roquoot by a PRP
in accordance with procedures provided by EPA.
Issuance of a special notice triggorc a noratoriun on tho
commencement of certain aetiono by RPA under 0104 or 0106. Tho
purpooo of tho moratorium io to provide for a period of
negotiation botwoon EPA and PRPo. Tho ooratorium prohibito GPA
from commencing any rooponoo action under 0104(o), and on RI/PS
under 0104(b), or an action undor 0106 for 60 dayo oftor roeoipt
of tho notice. If EPA dotorminoo that a "good faith offor" hoc
boon oubmittod by tho PRP within 60 dayo after roeoipt of tho
opocial notice, EPA ohall not coanonco on action undor 0104(a) or
tateo any action againot any poroon undor 0106 for on additional
60 dayo or commence an RI/PS undor 0104(b) for an additional 30
dayo.
Undor 8122(0)(2)(a), EPA may conoonco any additional othor
otudioo or inxootigationo authorised undor 0104(b), including tho
romodial dooign, during tho negotiation period. Undor
fll22(o)(2)(C) , if an additional PRP io identified during tho
negotiation poriod or after an agreement hoo boon ontorod into,
EPA may bring tho additional party into tho negotiation or nay
ontor into a ooparato agreement with tho PUP. Undor 0122(o)(S),
EPA io not prohibited froe undertaking a rooponoo or enforcement
action during tho nogotiation poriod when thoro io a oignificant
throat to public health or the onvironnont.
Section 122(a) providoo that if EPA docidoo not to uoo tho
opocial notice procedures established undor 0122(o), EPA io
required to notify PRPo in writing of thio docioion along with an
explanation why it io inappropriato to uoo ouch procoduroo.
Tho docioion by EPA to uoo or not to uoo tho opocial notice
procoduroo io not oubjoct to judicial roviou.
IV. INFORMATION RKCHAMGR
Tho onchongo of information between BPA and PRPo io crucial
for facilitating oottlononto. Information exchange ohould bo an
ongoing pffoeooo of connunication. BPA uooo information obtained
from PRPo fco dotornino potential liability, to determine tho nood
for roopoooo, and to support tho ooloction of tho ronody. PRPo
uoo infornation obtained froa BPA to organise ancng thonoolvoo
and to develop o "good faith offor"' to conduct or finance
rooponoo aetiono.
timo. Soo tho Conference Report on tho Suporfund Anondnonto and
Roauthorization Act of 1986, 99 Cong., 2d Sooo. Report 99-962
pp. 253 (1986).
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9834.10
A. INFORMATION REQUESTS
EPA may request information from PRPo about various
octivitioo and conditions undor 8104(o) of CBRCLA and under
83007(0) of the Roooureo Concorvation and Recovery Act (RCRA).
In addition, EPA may ioouo administrative oubpoonao undor
2122(o)(3)(b) of CERCLA. Znforaation eonoonly roquooted includeo
dotailo concerning wooto operations and BOOto nancgonont
practicoo, the typo and anount of oubotancoo contributed by each
PRP, as well as the name of other PRPo that contributed
oubotancoo to the oito.
Znforaation rocjuooto should bo ioouod oo early as
practicable and may bo ioouod ao a oopcrato letter during the PRP
search procoos, ao part of the general notice letter, or through
an adminiotrativo oubpoona. A detailed dioeuooion about tho noo
of information roquoot letters and cdniniotrativo oubpoonao
is contained, in the forthcoming "Guidance on Woo and enforcement
of Inforoation Roquooto and Adminiotrativo Subpoonoo under CBRCLA
00104(0) and 122(o) ."
The Rogiono have the discretion to decide whether to ioouo
an information roquoot ao a ooparato letter during the PRP ooarch
or ao a coaponont of a general notice.latter. Zoouing a separate
information roquoot letter in advance of tho gonoral notice nay
bo advantagoouo in oituationo whore infenaction froo PRPo is
noodod to determine whether it io appropriate to ioouo a notice
lottor to ouch partioo. :
Information roquooto ohould bo developed in accordance with
tho forthcoming guidance on information roquootc and
adminiotrativo oubpoonao ao mentioned above. An infornation
roquoot ohould aloo indicate that GPA piano to vigorouoly enforce
infornotion roquooto with tho not? onforconont tools authorised
undor SARA which include ioouing ordoro undor 0104 (oH9).
Finally, tho infornation roquoot ohould indieato that it io the
PRPo rooponoibility to inform EPA whether information they
provide to BPA io confidential and oubjoet to protection under
010a(o) e£ CCnCLA.
B. ZNPORttATIOM &KLKA8R
Zt io ioportant to gather and roloooo oita-opocifie
inforaation to PRPo ao ooon ao roaoonobly practicable„ Gathering
and roloaoing ouch infornation early in tho procooo will not only
expedite rooponoo and onforeonont activitioo but will help PR?o
organize and negotiate aoong thoaoolvoo ao woll.
Ao indicated, 9122(oMl) providoo for tho release of certain
inforaation to PRPo to tho extent ouch infornation io available.
Such information includes tho naaoo and addrooooo of other PRPs,
tho volume and nature of oubotancoo contributed by ooch PRP. end
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9834.10
o ranking by volume of tho oubntoncoo ot tho facility. Thio
information io to bo provided to PRPo in advance of tho opocial
notice in accordance with procedures dovolopod by CPA.
Congrooo recognized tho limitationo to CPA'o ability to oafco
certain information available to PRPo, ocpocially oarly in tho
rooponso procooo. Therefore, thio infornation eon bo roloaood
only to tho extent ouch interaction io ovoiloblo. If tho Rogiono
hovo information on volume, tho Rogiono ohould dovolop volucotric
rankings and ohould make ouch information available to PRPo ao
ooon ao practicable. However, duo to thoir proliainary and
sufiueary nature, EPA trill not expend roooureoo to onplain or
defend any liot or ranking. Lioto or ranhinga roloaood to PRPo
and othoro ohould alwayo contain appropriate dioclainoro.
Tho Rogiono aro oncouragod to roloaoo infornation to PRPo ao
ooon ao roaoonably poooiblo. Tho Rogiono nay roopond diroetly to
individual PRP roquooto for interaction, nay uoo tho notieo
lottoro ao vdhicloo to roloaoo ouch infornation to PRPo, or Day
ootablioh altornativo mechanician in oooo oituotiono ao dioeuoood
below. Tho Rogiono aro otrongly oncouragod to uoo tho notieo
lottoro to roloaoo oito-opocific information. In particular, uoo
of tho general notieo may provide a convenient opportunity to
roloaoo information in advaneo of tho opocial notieo purouant to
tho otatutory provioion that EPA roloaoo oueh infornation in
advance of tho opoeial notieo in aecordaneo with procoduroo
dovolopod by EPA.
Although it io generally proforablo to roloaoo information
to individual PRPo through notieo lottoro, altornativo ooehaniomo
may bo uood in unuoual circuaotancoo. For oaacplo, in inotaneoo
whore thoro aro many PRPo and/or where thoro io a oubotantial
amount of information to bo roloaood, tho Rogiono 007 eonoidor
making tho infornation available througL a control nochanion
(e.g. through a PRP otooring coonittoo if ono hao boon fiornod and
if tho committee hao agrood to bo a cloaringhouoo for
diotributing infornation to othor PRPo). An altornativo would bo
to indicate in tho notice lottor that tho Region hao oito-
opoeific inlornation that trill bo cade available to tho PRPo in a
manner opocifiod in tho lottor.
v. Norxcnuigggma AMP MRCOTIATIOM MORATORIUM PQR RI/PS ACT) RP/RA
Thio guidance croatoo a oyotonatic proeooo for ioouing throe
ooparato notice lottoro for ronodial actiono. Tho throe notice
lottoro aro 1) tho general notieo, 2) tho RX/PS opocial notice,
and 3) tho RO/RA opocial notice. Gvon though tho RX/P8 and RD/RA
opoeial notieo lottoro aro ooparato lottoro, they aro dioeuoood
in tho oano ooetion bolow oinco tho content of thooo lottoro io
baoieally tho oaoo. In inotaneoa whoro tho content of tho RX/PS
and RO/RA opocial noticoo differ, ooparato ooctiono aro
prooontod.
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9834.10
Also, this guidance is written with the assumption that each
notice letter will be issued in sequence. Consequently, the
guidance has been structured so that certain inforaation provided
or requested in one letter is not repeated in a subsequent
letter. The content of actual letters may, however, need to be
modified in situations where this process is not followed.
For example, there may be a situation where site activities
are already underway and where the Region is ready to issue the
RZ/FS special notice but has not issued a general notice. Zn
this instance, it would not be necessary to wait to send the
special notice until after a general notice is issued. However,
it may be appropriate to include certain aspects of the general
notice into the special notice.
A. PURPOSE OF NQTICK LBTT1RS
The purpose of the general notica is to inform PRPs of their
potential liability for future response coats, to begin or
continue the process of information exchange, and to initiate the
process of "informal" negotiations. Zn addition, the general
notice informs PRPs about the possible use of the 1122(e) special
notice procedures and the subsequent moratorium and "formal"
negotiation period.
The purpose of the special notice is similar to the general
notice, except that the special notice is also used to invoke the
statutory moratorium on certain BPA actions and to initiate the
process of "formal" negotiations. Although the general notice
does not trigger a moratorium on any IPA action and does not
invoke a "formal" period of negotiation, the general notice is
expected to initiate a dialogue between BPA and PRPs. Issuance
of a general notice should be viewed as a mechanism for
initiating negotiations whereas issuance of a special notice
should be viewed as a mechanism for concluding negotiations.
The term "informal" negotiations does net mean that such
negotiations) are not serious efforts to reach a settlement.
Rather "informal" negotiations refers to any negotiations that
are not conducted as part of the negotiation moratorium triggered
by issuance of a special notice under 1122(a). The terms
"informal" and "formal" negotiations are used to draw a
distinction between negotiations which are and are not covered by
the 1122(e) moratorium.
B. CBNBRAL NOTICE LITTER
Agency notification procedures should provide PRPs with
sufficient time to organize and develop a reasonable offer to
conduct or finance the response action. Toward this end, the
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9834 1C
8
should contact PRPs prior to issuing a 1122(•) special
notice by issuing a general notice letter.
1. Whether to Issue General Notice
A general notice letter should be issued at the vast
majority of sites that are proposed for or listed on the National
Priorities List (NPL) where negotiations for the RZ/FS and RO/RA
have not yet been initiated. Circumstances where it may not be
appropriate to issue the general notice include sites
where a notice pursuant to previous guidance was issued prior to
the reauthorization of CIRCLA or where the Region is ready to
issue a special notice at the site. These exceptions are
important for minimizing any possible disruption to ongoing
activities.
2. Timing of General Notice
The general notice letter should be sent to PRPs as early
in the process as possible, preferably once the site has been
proposed for inclusion on the NPL. Barly receipt of the general
notice will ensure that PRPs have adequate knowledge of their
potential liability as well as a realistic opportunity to
participate in settlement negotiations. When a separate
information request letter has been sent to PRPs prior to the
general notice, the information request should be sent as early
as possible to avoid any delay in issuing the general notice.
3. Recipients of General Notice
General notice letters should be sent to all parties where
there is sufficient evidence to make a preliminary determination
of potential liability under 1107 of CKRCLA. Zf there is doubt
about whether available information supports issuance of the
general notice, separate information request letters may be sent
to such parties prior to issuing the notice. Zf a Federal agency
has been identified as a generator at a facility not
owned/operated by the Federal agency, such agency should be
routinely notified like other PRPs.
Zf additional PRPs are identified after the general notice
but before) the RZ/FS special notice is issued, the Regions should
provide a general notice to those additional PRPs. Zf additional
PRPs are identified after general and special notices are issued.
the additional PRPs need not receive a general notice before
receiving the appropriate special notice. However, relevant
aspects of the general notice should be incorporated into the
special notice.
Copies of the general notice should be provided to the
Regional administrative record coordinator, the appropriate State
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9834.1 C
roprooontotivo, the Stoto or Federal truotoo if a truetoo for
natural roooureoo hoc boon dooignatod, and to EPA hoadquartoro at
tho oamo time noticoo are oone to PRPo. Tho eopioo of notieoo to
hoadquartoro ohould bo oont to tho Information Monagooont Section
within tho Program Management and Support Offieo of tho Offieo of
Haute Progromo Enforcement (OHPE).
Providing eopioo to tho adniniotrativo record coordinator io
important for onouring that tho notice io placed in tho
adminiotrativo record.4 Providing eopioo to too Stoto
roprooontativo and tho State or Federal truotoo io important for
onouring that Statoo ore appropriately infornod about poooiblo
future negotiations.* Providing eopioo to OUPB io oaoontial for
permitting entry into tho Super fund Onforconont Tracking Syoton
(SETS). Bntry into ooto will facilitate our offorto to track
oito activitioo and to roopond to Congroooionol and other
inquirioa. Direct Regional input of data into SOYS on notice
letter rocipionto io planned for PY 1908.
It io not nocoooary to provide eopioo of each general notice
to tho adminiotrativo record coordinator, Stoto roprooontativo,
Stato or.Federal truotoo, or hoadquartoro in inotoneoo where
identical noticoo are provided to nultiplo PQPa. Whore there are
multiple PRPo at a oito, a copy of one general notice with a liot
of othor partioo who have received tho letter would ouffico.
4. Contontn of Conornl Kotfl,co
Tho general notice letter ohould contain tho following
compononto: a) a notification of potential liability for
rooponoo cooto, b) a diocuooion about future notieoo and tho
poooiblo future uoo of opoeial notice procoduroo, c) a general
diocuooion about oito rooponoo activitioo, d) a roojuoot for
interaction about tho oito (if appropriate), o) tho roloooo of
certain oito-opocific information (ohoro;available), f) a
diocuooion about tho oorito of forcing o PUP otooring coaoittoo,
g) a notice regarding tho dovolopoont of an adniniotrativo
record, and h) a deadline for rooponoo to tho letter and
infornatioa on tho DPA roprooontativo to contact.
4 A diocuooion about placing notice lottore in tho
adniniotrativo record io covered in tho forthcoming "Guidance on
tho Adainiotrativo Record for Selecting a Qooponoo Action Under
CBRCLA" and in tho proanblo to tho forthcoming rovioiona to tho
National Contingency Plan.
• Stato participation in nogotiationo io covered in the
forthcoming "Interim Guidance on BPA-Stato Rolationo in CBRCLA
Enforcement."
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9834.10
10
n. PotontiqJi ^ability;, Tho lot tor ohould infora portico
that thoy oro potentially liable for rooponoo cooto under 9107 of
CERCLA, including the coots of conducting the RI/PS and RD/RA.
Tho letter should define the scope of potential liability and
ohould briefly explain why the partioo have boon identified GO
PRPo. '.'.*«-•'.
b. Future notice under S122(a) or ni22(o); Tho lottor
should indicate that EPA will notify tho party ot on appropriate
point in tho future. Tho lottor ohould opocify that thio notico
will either bo a 8122(a) notico or a 0122(o) opocial notico and
should explain what thooo noticoa are.
Tho lottor ohould indicate that tho 0122 (a) notico io a
notice which informo portico that EPA will net uco tho 0122(o)
opociol notice proeoduroo. Tho lottor ohould indicate that tho
notico will provide an explanation for tho docioion not to uoo
tho opocial notice proeoduroo.
The lottor ohould aloo indicate that a 0122 (o) opocial
notico will invoke tho negotiation ooratoriuo. Tho lottor ohould
make clear that ioouanco of a 0122(o) opocial notico lottor io
discretionary and Bay bo uood if EPA dotorninoo that uoo o£ ouch
proeoduroo would facilitate an agrooaont and expedite ronodial
action. Tho letter ohould aloo explain tho purpooo of tho
special notice and tho oubooquont negotiation noratoriua.
Informing PRPo about tho opecial notico proeoduroo and tho
negotiation moratorium will alert PRPo to poaoiblo future
negotiations and incroaoo their awaronooo of their opportunities
for participation in ouch nogotiationo.
c. Si to roimonno nctivition: Tho lottor ohould generally
diocuoo tho activitioo EPA piano to undertake at tho oito. Where
appropriate, such aetivitioo ohould include oehodulod otart or
completion datoo for tho RX/PS or RD/RA. Inotancoo whore it nay
not bo appropriate to provide otart or cooplotion datoo include
oituationo whore tho gonoral notico io ioouod very early in tho
proeooo and ohoro opocific datoo havo not yot boon oot, or nhoro
it io oxpoctod that target datoo arc lifcoly to change
oignif icaafcly.
d. Xfrgejcmtleji^iroqueo t : Tho lottor ohould roquoot
information OB oubotancoo oont to or prooont at tho oito and the
naiaoo of othor PRPo purouant to 0104 (o) of CBRCLA and/or 03007 (a)
of RCRA if a ooparato information roquoot hoc not already boon
ioouod. Tho content of tho information roquoot ohould bo
conoiotont with tho forthconing "Guidance OB Uoo and Gnforconont
of Information Roquooto and Administrative Subpoonoo Under C8RCLA
S104(o) and 8122(o) .N
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9834JC
ii
•. Information please: At • minimum, the letter should
release the names and addresses of other PRPs who have received
the general notice letter. In addition, to the extent such
information is available, the letter should include the volume
and nature of substances contributed by each PUP and a ranJcing by
volume of the substances at the facility if such information has
not been previously released.
f. PUP steering committee: The letter should request that
the PRPs identify a member of their organisation who will
represent their interests. In addition, the letter should
recommend that PRPs form a steering committee to represent the
group's interests in possible future negotiations. The letter
should indicate that establishing a steering committee is
important for facilitating negotiations with SPA.
g. Administrative record; The letter should be used as a
vehicle for Informing PRPs of the availability of ea admin-
istrative record that will contain documents which form the basis
for the Agency's decision on the selection of remedy. The letter
should indicate that the record will be open to the public for
inspection and comment. The letter should also provide
information regarding the opening of the record and where it will
be located.
h. PRP response and EPA contact: The letter should
encourage PRPs to notify EPA by a specified date of their
intereat to participate in future negotiations. The letter
should indicate that PRPs may respond as a group through a
steering committee if one has been formed. The letter should
also provide a cut off date for voluntary compliance with
information requests (if a request for information is contained
in the general notice) . An appropriate time frame for the PRP
response to an information request is generally thirty days from
receipt of the letter. Finally, the letter should provide the
name, phone number, and address of the IPA representative to
contact.
C. KZyri *no^ RP/RA SPECIAL MQTIC1 L
Prior to IPA's conduct of the RZ/PS and RD/RA, the Regions
should either issue the special notice to PRPs or provide PRPs
with an explanation why it was not appropriate to use the special
notice procedures. Issuance of the special notice triggers a
moratorium on IPA's conduct of the RZ/PS and remedial action.
While the statute does not impose a moratorium on IPA's conduct
of the remedial design, the Agency will not generally conduct
such activities during the moratorium. The purpose of the
moratorium is to provide for a formal period of negotiation
between EPA and PRPs where the PRPs will be encouraged to conduct
or finance response activities.
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9834.10
12
Th« negotiation moratorium may last a total of 90 days for
the Ri/FS and 120 days for the RD/RA if EPA receives • "good
faith offer" from PRPs within th« first 60 days of the
moratorium. The negotiation moratorium would conclude after 60
days if the PRP» do not provide EPA with a "good faith offer."
The initial 60 day moratorium begins on the date the PRPs
receive the special notice via certified Bail. Zn instances
where there is more than one PUP and PRPs are likely to receive
the special notice on different days, the date the Moratorium
begins should be seven days from the date the letters are mailed
to the PRPs. In either case, the special notice must make clear
when the negotiation moratorium begins and ends.
1- Whether to Issue RZ/PS and RP/RA Special Notice
EPA has the discretion to use the special notice procedures
when EPA determines that a period of negotiation would facilitate
an agreement with PRPs and would expedite remedial actions.
The Agency believes entering into such negotiations would
generally facilitate settlements and plans to utilise the RZ/PS
and RO/RA special notice procedures in the vast majority of
cases.
There are. however, some circumstances where it would
generally not be appropriate to use such procedures. Such
circumstances include 1) where past dealings with the PRPs
strongly indicate they are unlikely to negotiate a settlement,
2) where EPA believes the PRPs have not been negotiating in good
faith, 3) where no PRPs have been identified at the conclusion of
the PRP search, 4) where PRPs lack the resources to conduct
response activities. 5) where there are ongoing negotiations, or
6) where notice letters were already sent prior to the
reeuthorization of CERCLA and onging negotiations would not
benefit by issuance of a special notice.
Special notices may be issued for operable units of remedial
actions. The test for determining whether to issue a spociel
notice for an operable unit is generally the same as for full-
remedial actions. The general expectation is that separi
scale remedial actions. The general expectation is that separate
special notices will be issued for each separate operable unit as
long as issuing the notice would facilitate an agreement and
would expedite the remedial action. However, special notices may
also be issued for only major operable units or may cover a
series of operable units if appropriate under the circumstances
at the site.
Por example, if several operable units will be conducted at
a site as relatively separate and distinct response actions, it
may be appropriate to consider using separate special notices
which would trigger separate negotiation moratoriums. Zf a series
of operable units will make up a remedial action it may be
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appropriate to issue tht special notice to cover only the major
operable unit(s) or to cover several operable units.
2. Motifvino PRPs When Not Appropriate to I««u« ~
RI/FS and RD/RA Special Notice
In instances where EPA decides it is inappropriate to issue
the special notice, S122(a) provides for BFA to notify PRFs in
writing of that decision. The notice »ust indicate the; reasons
why the Region determined that issuing the special notice and
entering into MfornalN negotiations was not appropriate.
The notice should be provided to all PRFs that have been
identified to date as well es to the Regional administrative
record coordinator for placement in the record. Such notices
should be provided as soon as practicable. Zn instances where
the RZ/FS or RO/RA have not yet been initiated, the notice should
be eent prior to the initiation of such activities if possible.
Zn addition, the S122(a) notice should be used as a vehicle
for informing FRPs that the Agency will establish or has
established an administrative record containing technical
documents supporting the Agency's decision on the selection of
remedy. The notice should indicate that the record is open for
public inspection and comment and should specify where the record
will be or has been located.
3. DQJ Role in RZ/FS and RD/RA Negotiation*
The Regions should notify the Chief of the Environmental
Enforcement Section in the Department of Justice (DOJ) prior to
issuing special notice letters where settlement by a consent
decree is contemplated. A copy of this memorandum should also be
provided to the Office of Waste Programs Enforcement and the
Office of Enforcement and Compliance Monitoring in Headquarters.
The memorandum to DOJ should indicate when the Region
intends to issue the special notice. Because most RZ/FS
negotiations) involve consent orders, notice to DOJ on the RZ/FS
is not ordinarily necessary. However, where e site is in
litigation or where settlement by consent decree is expected, DOJ
should be notified at least 30 days prior to issuing the RZ/FS
special notice. Zn addition, where the resolution of the matter
by an administrative order is expected to involve a compromise of
past or future response costs and the total response costs
will exceed 3500,000, DOJ is to be notified. DOJ'a role will be
to review the compromise of the claim pursuant to section
122(h)(l) but not to review the administrative order for the
RZ/FS. For RD/RA negotiations, the notice should be sent to DOJ
at least 60 days prior to issuing the RD/RA special notice. The
memorandum should also identify the EPA Regional representative
DOJ should contact.
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In oddition, tho Regions should consult with the Chief of
tho Envirooaontal Enforcement Section prior to oonding a copy of
any droft consent decree or any,outline of a draft conbont decree
to PRPO. Tho Regions ore encouraged to include a draft conoont
decree with tho RD/RA opocial notice or ooon thereafter ao
diacuoaod below.
4. Timing of RI/PS Special Notieo
It is iaportant that PRPo receive tho RI/PS opocial notice
letter ao ooon oo practicable. Of groator inportanco, tho letter
must bo aont oufficiontly in advance of obiigationo for tho RI/PS
ao that nogotiationo do not delay tho initiation of tho RI/PS by
tho Fund in tho event tho nogotiationo do not rooult in an
agreement providing for tho PRPo to conduct or finance tho RI/PS.
Timoly receipt of tho opocial notice will hovo a oignificcnt
effect on tho PRPo ability for aoaningful participation in fornal
nogotiationo.
Tho RI/PS opocial notice lottor should bo oont to PRPo no
later than 90 dayo prior to tho ochodulod dato for initiating tho
RI/PS. .Tho ochodulod dato for initiating tho RI/PS roforo to tho
dato fundo will bo obligated to cooooneo rooponoo activitioo.
A minimum of 90 dayo io important for onouring that tho
negotiation aeratoriura dooo not delay initiation of tho RZ/PS in
tho ovont nogotiationo do not rooult in a oottlonont. Tho time
for service by mail should bo taken into account. .
S- Timing of RD/RA Special Notieo
Tho timing of tho RD/RA opocial notico lottor will have a
significant impact on both tho ouceooo of nogotiationo and on
EPA'o ability to novo forward with implementing a ronody without
dwlay. Ao indicotod earlier, "fornal" noc*tiationo purpuant to
opocial notico aro not tho oolo vehicle for reaching oottlononto.
"Infernal" nogotiationo auat occur throughout the procooo and in
advance of tho opocial notico. To aoouro that "fornal"
nogotiationo aro productive, BPA nuot initiate PRP ooarch and
information exchange aetivitioo ao well ao "infernal"
negotiation oo oarly ao poooiblo. .
i • ' .
Tho pffinory purpooo of tho opocial notico procoduroo io to
facilitate oottlononto through negotiation. & prioary concern in
dotoroining nhon to ioouo an RO/RA opocial notico io whether
thoro io a likelihood that aoaningful nogotiationo con be
conducted at a given otago in tho procooo. Another concern io
that, to tho extent practicable, the nogotiationo ouot bo
ochodulod to nininixo any delay in tho ronodial dopign and
remedial action. A final concern io that nogotiationo bo carried
out in a way that dooo not undermine or havo tho appearance of
undermining tho public participation procooo.
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15
This guidance establish** an approach which identifies whan
the Regions «ust generally issue the RD/RA special notice letter.
The Regions way, however, adopt an alternative approach under
appropriate circumstances. Appendix A contains illustrations of
the three approaches discussed below. •
a. General Approach; Issue special notice when release
The Regions
generally must issue the RD/RA special notice when the draft
feasibility study (PS) and proposed plan T are released to the
public for comment. As shown in Appendix A, issuance of the
special notice with the release of the draft PS end propoeed plan
triggers the initial 60 day negotiation moratorium. The initial
60 day negotiation moratorium begins at the) start of the 30 day
public comment period and, in conjunction with the first 30 days
of the 60 day extended negotiation moratorium, is concurrent with
the Record of Decision (ROD) review and approval process. The
remaining 30-days of the extended negotiation moratorium is
concurrent with the initial phases of the remedial design. IPA's
ability to sign the ROD is not affected by the duration of the
negotiation moratorium. The ROD may be signed at any point after
the close of the public comment period and the preparation of the
responsiveness summary for the public.
In most cases, commencing formal negotiations at the same
tine that the draft PS and proposed plan are released will
properly balance the considerations stated earlier relating to
BPA's ability to conduct meaningful negotiations, to minimise
delay in implementing the RD/RA, and to maintain the integrity of
the public participation process. Under this approach, formal
opportunity for PR? involvement would begin at aa early yet
concrete stage in the process, tarly participation may be
especially advantageous in situations where PRPs have not been
previously or substantially involved in RZ/PS activities. Zn
addition, PRPs and the public would have knowledge of the
possible range of alternatives through the draft PS and proposed
• The) time periods depicted in the following discussion and
illustrated in Appendix A reflect "best case* scenarios where
various response and enforcement activities are expected to be
carried out without delay, for example, the public comment
period lasts 30 days and does not take into account a possible
extension.
T The proposed plan refers to the public participation
document developed pursuant to 1117(a). This is a non-legal,
non-technical document that describes the alternatives in the PS,
and specifies and provides a brief analysis of IPA's preferred
alternative. A more detailed discussion of the proposed plan
will be contained in the forthcoming "Guidance on Documenting
Decisions at Superfund Sites" (referred to as the ROD Guidance).
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9834.10
16
plan prior to "formal" negotiations. This information io
important for anointing tha PRPs in developing a meaningful "good
faith offer" for conducting or financing the RD/RA.
b. Alternative Approach; loouo opoeiol notieo prior to
roloooo of draft FS ond oropoaed plon for public eoooont.
Although the Rogiono generally will iosuo the RD/RA opoeiol
notice when the draft PS and propoood plon oro rolooood to tho
public for comment, tho Rogiono oro encouraged to ioouo tho
opoeiol notice earlier in tho procooo if this action would
facilitate tho proopocto for reaching a oottlooont. If a Region
chooooo to follow thio approach, tho Region ohould include with
tho opocial notieo a ouranary or fact ohoot of tho altornativoo
SPA hoc ocroonod and tho altornativoo tho Agency io currently
conoidoring. *
Ao shown in Appendix A, tho RO/RA opocial notice noy bo
ioouod prior to EPA's roloaoo of the draft FS and propoood plan.
loouanco of tho opoeial notieo triggoro tho initial SO day
negotiation moratorium. Tho initial negotiation noratoriun io
concurrent with tho review and roloaoo of tho draft FS and
proposed plan. Tho initial negotiation noratoriuo io eoapletod
prior to tho initiation of the public consent period. Tho public
comment period io concurrent with tho firot 30 dayo of tho
extended negotiation moratorium. Tho rooaining 30 dayo of the
extended negotiation noratoriun io concurrent with tho ROD review
and approval procooe. Tho ROD could bo oignod and tho
negotiation moratorium could"-bo concluded at about tho oano time.
EPA'o ability to oign tho ROD io not affected by tho negotiation
moratorium. Tho ROD may bo oignod at any point oftor tho elooo
of tho public comment period and tho preparation of tho
rooponsivonooo oumnary for tho public.
Zn nany caooo, providing opoeial no.ice at thic oarly otago
may bo inappropriate boeauoo too ouch uncertainty would exiot .
about tho remedy to allow for meaningful nogotiationo. However,
under other eircuootaneoo it nay bo appropriate to iooue tho
4 Qoloooo of a ouonary or faet ohoot on tho altornativoo
that havo boon oeroonod and tho altornativoo that are boing
conoidorodl io inportant for facilitating nogotiationo at thio
oarly otago in tho roeodi&l proeooo. Thio information oill bo
uooful to PUPo in developing their "good faith offer" for
conducting or financing a rooponoo action and will bo ioportant
for informing PRPo about tho altornativoo tho Agency io
conoidoring at tho oito. Tho Rogiono ohould include tho suoaary
of altornativoo or fact ohoot in tho aduiniotrativo record for
each oite.
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9834.10
17
special notice early in the procooo, especially in oituotiono
whore thoro in o relatively small group of PRPo, it io cloor what
the remedy io likely to bo, end tho remedy io not likely to, bo
controversial.
Where circumotoncoo permit ioouoneo of tho special notice ot
chip oorly otago, an odvontago to this opprooch io thct tho ROD
review and approval proeoos and tho negotiation noratoriuo could
bo concluded at about tho canto time. This would help ooouro that
cleanup occurs GO ooon ao possible whether through a negotiated
settlement or Fund"financed action. In addition, thoro could bo
an early opportunity to inform PRPo of voriouo ronodial
altornativoo undor consideration by EPA prior to BPA'o
identification of tho proposed plan. Early participation nay bo
advantageous whore PRPo have not boon previously or aubotantially
involved in RZ/PS activities.
c. Alternative Approach; loouo npoeinl notico nhon tho ROP
in oionod. Although tho Rogiono generally will ioouo tho RD/RA
opocial notico letter when tho draft PS and propoood plan aro
released to tho public for comment, thoro nay bo oono linitod
circumstances whore it io appropriate to ioouo tho notico later
in tho procooc (i.e. when tho ROD io oignod). Thio approach nay
bo followed, however, only whore tho Region can provido adequate
justification and whore tho Region hao obtained prior approval
from Headquarters. Approval must bo obtained in writing from tho
Directors of tho Office of tfooto Programs Enforcement and tho
Office of Emergency and Remedial Rooponoe.
Ao shown in Appendix A, undor thio approach tho RD/RA
special notice would not bo issued until tho ROD io oignod.
Thus, the entire 60 to 120 day nogotiation noratoriun would not
occur until tho remedial deoign phaoo.
An advantage to thio approach io that ainco tho ROD would bo
signed and tho rooody would bo ooloctod at tho otart of tho RD/RA
nogotiation ooratoriun, tho PRPo would know proeiooly which
remedy tho "0oo4 faith offer" and tho nogotiationo ohould focuo
on. Zn a&Qition, oinco tho nogotiationo would bogin after tho
clooo of tteo public coaaont period, tho PRPo and EPA nould have
tho benefit of Knowing tho public coononto.
Tho najor dioadvantago to thio approach io that tho
nogotiation oorotoriun would not occur until tho end of tho
procooo (i.e. not until tho beginning of tho ronodial dooign
phaoo). Zoouing tho special notico at thio point would create
tho greatest potential for a oubooquont delay in inplononting
tho remedy.
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18
Znotoneoo where it may, however, bo opproprioto to icouo tho
special notice lator in tho procooo (i.o. not until tho ROD io
signed) may bo where more tine io needed to conduct informal
negotiations, whoro tho oito ia particularly complex, or oboro
thoro is on extraordinarily large nuabor of PRPs (o.g. hundrodo
of PRPo) . Another example nay be where thoro io littlo
expectation that a Pund-finaneod remedial action will occur in
tho noar future at an enforcement-load oito. If Pund-financod
activitioo are not expected to occur and a later noratoriuo would
facilitate cleanup, it nay bo loon important to initiate and
conclude nogotiotiono early in tho procooo.
6. Rocioionto of RI/PS nnd RD/RA Spoelnl Motieo
Tho RI/PS and RD/RA opocial notice lottoro ohould bo oont to
all parties whoro thoro in oufficiont evidence to nafeo a
preliminary determination of potontiel liability undor 0107 of
CBRCLA. If thoro io doubt about whether available information
oupporto ioouanco of tho RZ/PS and RD/RA opoeial notieoo,
aoparato information roquoot lottoro nay bo oont to ouch portico
prior to ioouing ouch notice. If a Podoral agency haa boon
identified ao a generator at a facility not etmod/oporatod by tho
Federal agency, auch agency ohould bo routinely notified like
othor PRPa.
Section 122(o)(2)(C) authorixoo BPA to bring additional
partioo into nogotiationo or to enter into a separate agreement
with parties when additional*PRPo aro identified during tho
negotiation period or after an agrooaont hao boon entered into.
Tho Rogiono may provide a opocial notice to additional partioo if
they aro identified after ioouaneo of tho HI/PS opoeial notice
letter. However, ioouanco of a opoeial notice to additional
partioo would not change tho duration of tuo negotiation
moratorium. Tho opocial notico oay invite PttPo to participate in
remaining nogotiationo, but would not extend tho pro-onioting
negotiation moratorium.
Copioo of tho opocial notieoo ohould bo provided to tho
Regional aAoi&iotrativo record coordinator, tho appropriate State
roproaontotivo. tho State or Podoral truotoo if a truotoo for
natural roocwircoo hao boon dooignatod, and to CPA hoadejuartoro at
tho oono tino notieoo aro oont to PRPo. Tho eopioo of notieoo to
hoadejuartoro ohould bo oont to tho Infomation Hanagoncmt Section
within tho Progron Managonont and Support Office of tho Office of
Uaoto Prograoo Bnforeooont (OttPB).
Providing eopioo to tho adniniotrativo roeord coordinator io
important for onouring that tho notico to bo placed in tho
record. Providing eopioo to the State roprooontativo and tho
State or Podoral truotoo io important for onouring that Statoo
aro appropriately informed about poooiblo future nogotiationo.
Providing eopioo to OttPE io oooontial for poraitting entry into
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19
the Superfund Enforcement Tracking System (SETS). Entry into
sets will facilitate our efforts to track site activities and to
respond to Congressional and other inquiries. Direct Regional
input of data into SETS on notice letter recipients is plamned
for FY 1988.
It is not necessary to provide copies of each special notice
to the administrative record coordinator. State representative,
State or Federal trustee, or headquarters in instancee where
identical notices are provided to multiple PRPs. Where there are
multiple PRPs at a site, a copy of one special notice with a list
of other perties who have received the letter would suffice.
7. Contents of Rl/rs and RD/RA Special Metier
The RZ/FS and RD/RA special notice letters should contain
the following components: a) a notification of potential
liability, h) a discussion about the special notice and
subsequent negotiation moratorium, c) a discussion about the
response activities to be conducted, d) a copy of a statement of
work or workplan and a draft administrative order on consent for
the RI/FS, e) a copy of a draft consent decree for the RD/RA (if
possible). f) a discussion about what constitutes a "good faith
offer" for the RZ/PS, g) a discussion about what constitutes a
Mgood faith offer" for the RD/RA, h) a release of certain site-
specific information (where available and appropriate), i) a
demand for payment of EPA costs incurred to date, j) a
notification about the administrative record, and k) a deadline
for response to the letter and the name of the IPA representative
to contact.
a. Potential liability; The letter should specify that
PRPs are potentially liable for the costs of conducting the RZ/PS
or the RD/RA. A detailed discussion about potential liability is
not necessary particularly if the RZ/PS or RD/RA special notice
references the general notice.
b. Special notice and formal necotiationei The letter
should discuss the purpose of the special notice and the
subsequent negotiation moratorium. The level of detail will
depend upoei whether the PRP has received the general notice and
whether the) general notice provided an adequate discussion. At
a minimum, the letter should make clear that EPA is inviting PRPs
to participate in "formal" negotiations for PRP conduct of the
RZ/PS or RD/RA and that this letter automatically triggers the
formal negotiation period. Zn addition, it is important that the
special notice indicate the date the negotiation moratorium will
conclude in the absence of and in the event of a "good faith
offer." Finally, the letter should explain that a consent order
or consent decree should be finalized by the end of the
moratorium.
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20
e. Reeponsf actions to bo conducted: The letter should
identify the response activities EPA plans to conduct et the site
and provide scheduled dates for initiating such activities if
appropriate. -.
d. Statement of work or workplan and draft administrative
order on consent for RZ/PS special noticet The letter should
provide a statement of work or workplan and draft administrative
order (AO) on consent. Such information is crucial to PRPs in
their development of a "good faith offer* to IPX for conducting
or financing the RI/FS and for ultimately facilitating
settlements. The Regions are encouraged to provide that draft AO
on consent with the notice letter if practicable. At a minimum,
the letter should contain a copy of the statement of work with
the expectation that the draft AO will follow as soon as
practicable.
e. Draft consent decree for RD/HA special notices The
letter should contain a copy of the draft consent decree if
possible. It is important that PRPs have the draft consent
decree at the start of negotiations or soon thereafter since the
decree contains important information which will assist PRPs in
developing their "good faith offer* to EPA.
f. "Good faith offer* for RI/FSt The letter should
indicate that a "good faith offer" is a written proposal which
demonstrates the PRP's qualifications and willingness to conduct
or finance the RZ/PS. A "good faith offer* for the RZ/PS should
include the following:
o a statement of the PRPs willingness to conduct or finance
the RZ/PS which is generally consistent with IPA's
statement of work or work plan and draft administrative
order on consent or provides a sufficient basis for
further negotiations;
o a paragraph-by-paragraph response to EPA's statement of
work or workplan and draft administrative order on
consent;
o a detailed statement of work or workplan identifying how
the PRPs plan to proceed with the work;
o a demonstration of the PRPs technical capability to
undertake the RZ/PS. This should include a retirement
that PRPs identify the fir» they expect will conduct
the work or that PRPs identify the process they will
undertake to select a firm;
o a demonstration of the PRPs financial capability to
finance the RI/FS;
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983 4,1 C
21
o a statenent of the PRPs willingness to reimburse IPX for
the coses EPA incurs in overseeing the PRP conduct of the
KZ/PS as required by I104(a)(l); and
o the name, address, and phone number of tha party or*
steering committaa who will raprasant tba PRPs in
negotiations.
g. "Good faith offer" for RD/RAi Tha lattar should
indieata that a "good faith offar" is a writtan proposal which
damonstratas tha PRPs qualifications and willingness to conduct
or financa tha RD/RA. A "good faith offar* for tha RO/RA should
includa tha following:
o a statanant of tha PRPs willingness to conduct or financa
tha RO/RA which is ganarally consistant with IPA's
proposad plan or which providas a sufficient basis
for further nagotiations in light of IPA's proposad
plan;
o a paragraph-by-paragraph rasponsa to IPA's draft consant
decree, including a rasponsa to othar docuaents that aay
hava baan attachad to tha dacraa such as a technical
seopa of work for tha proposad plan or access or
preauthorization agreeaents;
o a detailed "stateaent of work" or "workplan" identifying
how PRPs plan to proceed with the work;
o a daaonstration of tha PRPs technical capability to
undertake the RO/RA. This should include a requirement
that PRPs identify the fira they expect will conduct
the work or that PRPs identify the process they will
undertake to select a fira;
o a deaonstration of tha PRPs capability to finance the
RO/RA;
o a statement of the PRPs willingness to reiaburse IPA for
past response and oversight costs;
o a discussion about the PRPs position on releases froa
liability and raopeners to liability; and
o the naae, address, and phone nuaber of the party or
steering coaaittaa who will represent the PRPs in
negotiations.
h. Information releaser To the extent such inforaation is
available and to the extent such inforaation has not been
previously released, tha letter should contain inforaation on tha
names and addresses of other PRPs, the voluae and nature of
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9834.10
22
substances contributed by «ach PRP, and • ranking by volume of
the substances at the facility. Not* that the release of
information with the RZ/FS and RD/RA special notices is not
intended to require the release of information previously
provided to PRPs. ~
i. Demand for payment: The letter should include • demand
that PRPs reimburse EPA for the costs the Agency has incurred in
conducting response activities at the site pursuant to I107ta).
The letter should identify the action IPA undertook and the cost
of conducting the action., The letter should also indicate that
the Agency anticipates expending additional funds on activities
covered by this notice and other specified future activities.
Finally, the letter should demand payment of interest for past
and future response costs incurred by IPA pursuant to 1107 (a).
Notice letters should not be delayed to obtain cost information
where such information has not been previously collected.
j. Administrative record; The letter should be used as a
vehicle for informing PRPs of the availability of an admin-
istrative record containing documents that form the basis for the
Agency's decision on the selection of remedy. The letter should
indicate that the record is open to the public for inspection and
comment. The letter should also indicate where the record will
be or has been located.
k. PRP response and EPA contact parson; The letter should
encourage PRPs to notify EPA -of their interest to participate in
negotiations. The letter should indicate that PRPs may respond
as a group through a steering committee if a committee has been
formed. Zn addition, the letter should provide the name, phone
number, and address of the EPA representative to contact.
0. CONCLUSION OF MEGOTZATZON MORATORIUM AMD
MANAGEMENT FOR RI/FS AJfg
At the conclusion of the 1122 (e) negotiation moratorium, the
Regions should have a fully negotiated administrative order on
consent for the RZ/PS and a fully negotiated consent decree for
the RD/RA which has been signed by the PRPs. A signed document
is necessary to show that an agreement has, in fact, been
reached. •
• Pre-SARA guidance for drafting an administrative order is
provided in "Superfund Administrative Order: Workshop and
Guidance Materials" (1985) and for drafting a consent decree in
"Guidance on Drafting Consent Decrees in Hazardous Waste Cases"
(Hay 1, 1985). These guidances are being revised to include
SARA'S requirements.
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9834.10
23
At the conclusion of the 120 day moratorium for tho RD/RA o
determination must bo mode on whether to continue oottlooont
octiviciofl, whether tho oito ohould bo cloonod up uoing Suporfund
money, or whether to initiate o 3106 enforcement action. &
continuation of settlement octivitioo nay include ooofeing an
oxtonoion to tho 120 doy negotiation norotoriun oo diocuoood
below, or sending a consent decree to tho DepartDont of Juotico
for lodging in tho appropriate diotrict court.
Zn instances where an agreement hoc boon reached and fully
negotiated but PRPo have not yet obtained oignaturoo, it oay bo
nocoooary to obtain an oxtonoion to the negotiation ooratoriuo.
Sxtonaiono nay aloo bo nocoooary whore tho agroooont hoo not been
fully negotiated but all major ioouoo ore rooolvod and
outotending ioouoo ore well defined and final language ic
imminent. Bxtonciono to the negotiation aoratoriua can bo
obtained only in certain circuaotancoo oo dioeuoood in tho
February 12,-1987 "interim Guidance: Stroanlining tho CGBCLA
Settlement Decision Proceoo." l°
Tho timing of opocial notice lottaro will hove a oignificant
affect on our ability to sueeooofully conclude nogotiatioao at
the end of tho moratorium period. Tho Stroanliaod Sottlonont
Policy provides for two different procooooo for obtaining
oxtonoiono for tho RZ/PS and RD/RA nora^oriuno. Tho policy
indicates that the Regional Adainiotrator hoo tho diocrotion to
terminate or extend nogotiotieno for tho HZ/PS oftor 90 doyo.
However, extonoion of negotietiono beyond on additional 30 dayo
ohould bo authorized by tho Regional Adminiotrator only in
limited cases.
Relating to tho RD/RA moratorium, the Stroonlinod Sottloaont
Policy providoo for cither Regional or Hoodqucrtoro approval of
an oxtonoion under certain circunffitaaeoq. An cmtonoion to tho
120 doy RD/RA ooratoriun may bo granted for on additional 30 dayo
by tho Regional Adniniotrator when oottlonont to likely and
iDoinont. An additional oxtonoion beyond tho 30 dayo nay bo
approved only by tho Aooiotant Adoiniotrotor for tho Office of
Solid ttaoto and Ctaorgoney Rooponoo (OSWtSR) and oaly in raro and
extraordinary eireunotancoo.
Thic euidonco ro-oophasixoo tho inportanco of nooting the
90 day norotoriun for tho RI/PS and tho 120 day noratoriuc for
tho RD/RA. To aid that policy, thio guidance idontifioo throe
eireunotancoo where tho Regional Adainiotrator and Aooiotont
Adniniotrotor for OSUOR oay conoidor granting ouch oatonoiono for
tho RD/RA Dorotorium.
10 This guidance was issued under OSHBR Directive 09832.9.
-------
9834,10
24
Pirot, it may bo appropriate for tho Regional Adminiotrotor
or tho Acoiotont Administrator to extend tho 120 day moratorium
for tho RD/RA if EPA ooloctc a remedy in tho ROD which io
significantly different from tho Agoney'o ctotod preference in
tho proposed plan. Thio could raoen that tho focuo of
nogotiationo could change significantly, requiring additional
time to roach agreement with PRPo.
Tho oocond example applioo to Fund-load oitoo. It nay bo
appropriate for tho Regional Adainiotrator or tho Aooiotont
Adoiniotrotor to extend tho 120 day negotiation noratoriun for
tho RO/RA if non-onforcoraont activitioo at tho oito (o.g. on
oxtondod public comment period or an extended ROD review and
approval procooo) cauoo a oignifieant doloy in tho Agoney'o
ability to move forward in implementing a Pund-finaneod ronody.
An extension to tho negotiation moratorium racy bo oopocially
appropriate if thoro io roaoon to boliovo a negotiated oottlonont
io ianinont. -In other words, if tho Fund io not roady to DOVO
forward in implementing tho remedy at tho end of tho 120 day
negotiation moratorium thoro io no roooon to conclude
nogotiationo if thoro io roaoon to boliovo on agreement can bo
reached.
Tho third example applioo to enforcement-load oitoo. It nay
bo appropriate for tho Regional Adainiot'rotor or tho Aooiotont
Adminiotrator to extend tho 120 day negotiation moratorium for
tho RO/RA after a 0100 litigation referral hao boon prepared and
referred to tho Deportment of Juotico (DOJ) Cor action. In fact,
tho preparation and roforral of a eaoo to DOJ nay bo an important
mochaniom for providing tho nocoooary iapotuo for reaching a
voluntary oettlomont. In many caooo it coy bo appropriate to
ioouo a unilateral adniniotrativo order concurrent with tho
roforral.
VI. NOTICE LETTERS AND NEGOTIATION HOttATOttlUB FOR RRMOVAL
ACTIONS
Tho notice letter proeooo for removal actiono difforo fron
tho notifiieotiea preeooo for rooodiol oetiono. ho diocuoood
above, tho eotificotion procooo for rooodiol actiono involvoo
ioouanco o£ throe notice lottoro. Tho notification procooo for
ronovalo nil! involve only one notice letter t?hich noy or nay not
invoke tho 0122(o) opociol notice procoduroo oo diocuoood bolow.
A. MOTHER UWTflRS
1. Whothor to Innuo Ronovnl notice
Tho Rogiono ohould attonpt to contact PRPo prior to
initiating a Pund-financod removal action to inforn PRPo of their
potential liability whoro EPA will incur rooponoo cooto or
-------
9834.10
25
to oocuro o private party rooponoo. Thin guidance oncourogoo tho
Rogiono t>o- oook PRP rooponoo through o written notice letter but
tho Rogiono any contact PRPo verbally (with a written follow-up
notice). Thio io conoiotont with tho guidonco on "Xoouaneo of
Adniniatrotivo Ordoro for Innodiato Ronoval Aetiono" (2/21/04).
Tho Rogionn ohould ioouo notice lottoro to readily
identifiable PRPo for roaoval actioao in tho voot nojority of
coooo. Tho content of the notice will vary depending whether tho
notice will bo uood oiaply to notify PRPo of thoir potential
liability for an action CPA hao already tabon or io about to
tateo, whether tho notice will bo uood to encourage a private
party rooponoo through "infernal" nogotiationa (i.o. nogotiationo
not triggered by tho C122(o) opocial notice proeoduroo), or
whether tho notice will bo uood ao a nochanioo for invoking tho
0122(o) opocial notico procoduroo which provide for "fornal"
nogotiationo botwoon SPA and PRPo. ,..
2. When to Uoo SBQCiol Notico Procoduron £er Ronevnln
Tho Rogiono ohould conoidor uoing tho 0122(o) opocial notieo
procoduroo only for thooo ronovalo whoro tho throat io of a
nature that it io not nocoooary to initiate on onoito rooovol
action for At Idaot oix oontho. Tho "oia nonth planning time
period" bogiho onco tho oito evaluation io conplotod. Thio noano
that for tho vaot majority of ronoval aetiono tho Rogiono will
not bo r 00^1 i rod to utilize ttio opocial notieo procoduroo. It io
not appropriate to utilize opocial noticoo for coot ronoval
aetiono bocouoo tho ouboocjuont noroteriun nay interfere with tho
Agency'o ability to inploaont tho ronody in a tinoly oannor. In
addition, it nay not bo worth expanding tho tino and rooourcoo to
ontor into fortml nogotiationo whon a ronoval will bo a
relatively ohort tore and inonponoivo rooponoo action.
Tho Rogiono ohould include tho following factoro in thoir
dotornination of whothor it io appropriate to utilise tho opocial
notico procoduroo for rooovalo with a oin conth planning load
tino: 1) oaothor viable PRPo have boon identified, 2) whether
tho PRPo aro osnoctod to roopond favorably to tho invitation to
participate in nogotiationo and to conduct or finance tho ronoval
action, 3) cfcothor ioouanco of tho opocial notico could delay
inploBontation o£ tho roooval action, and 4) whothor it nay bo
noro appropriate to ontor into "infomal" nogotiationo in liou of
"foraal" nogotiationo undor 0122(o).
In dotomining tho PRPo viability, tho Region ohould inejuiro
about tho PRPo financial and technical capability for conducting
and/or financing tho ronoval action in an offoctivo and tinoly
manner. In dotoroining tho PRPo willingnooo to undertake or
finance tho ronoval action, tho Region ohould, at a nininua,
obtain a verbal agreement from tho PRPo prior to ioouanco of tho
opocial notico. In dotornining whothor tho opecial.notice aay
-------
9834JC
26
delay implementation of the remedy or in determining whether to
•ntcr into "informal" rather than "formal" negotiations, the
Regions should consider whether the 1122(e) negotiation
moratorium would interfere with other activities at the site.
3. Notifying PRPs When Not Appropriate to Utilize
Special Notice Procedures for Removals
BPA's decision on whether to use the special notice
procedures for any response action is clearly discretionary.
However, 1122(•) requires the Agency to notify PRPs ia writing
when the Agency decides not to utilize such procedures. The
removal notice provides a convenient vehicle for informing PRPs
of IPA's decision not to utilize the special notice procedures.
The notice should, therefore, inform PRPs of IPA's decision not
to utilize such procedures when this determination has been made
and should provide an explanation for that decision.
4. DOJ Role in Removal Negotiations
The Regions should consult with the Chief of the
Environmental Enforcement Section of DOJ prior to issuing a
special notice letter for removal actions where settlement by
consent decree is contemplated, or where the settlement is
expected to involve a compromise of past or future response costs
and the total response costs will exceed $500,000. The Regions
should consult with DOJ prior to releasing a draft consent decree
to PRPs.
5. Timing of Removal Notice
A removal notice that does not invoke the special notice
7 .-ocedures should be provided to PRPs as r Jon as practicable.
For removal notices that invoke the special notice procedures.
the notice should be issued as early as possible but no later
than 120 days before the scheduled date for initiating the
removal action. The scheduled date for initiating the removal
action is the date removal extramural cleanup contractor funds
will be obligated and onsite cleanup will begin.
The timing of a notice which invokes the special notice
procedure* is critical because issuance of the notice triggers
the subsequent «0 to 120 day moratorium on EPA conduct of the
removal action. (The moratorium would last only (0 days in
instances where the PRPs do not provide IPX with a "good faith
offer"). Issuing the special notice at least 120 days before EPA
will begin the removal ensures that the subsequent 120 day
moratorium does not affect IPA's ability to implement the removal
action in the event negotiations do not rssult in an agreement
for PRP conduct of the removal action.
-------
98341C
27
6. ^ociPJonts of Removal Notice
The removal notice should bo oont to all portico whore thoro
is oufficiont evidence to mcko a preliminary determination.* of
potential liability under 8107 of CERCLA. If a Podoral agency
hao boon identified an a generator at a facility not
ownod/oporotod by tho Fodoral agency, ouch agency ohould bo
routinely notified like other PRPo.
Copies of removal noticoo should bo provided to tho Regional
administrative record coordinator, tho appropriate Stato
roprooontativo, and to hoadquartoro. Providing copioo to the
administrative record coordinator io inportant for onouring that
tho notice to bo placed in tho record. Providing copioo to tho
Stato roprooontativo io important for onouring that Statoo are
appropriately informed about poooiblo future nogotiationo.
Providing copioo to tho Information Management Section
within the Program Management and Support Office of tho Office of
Haste Programo Enforcement for entry into tho Suporfund
enforcement Tracking Syotom (SETS). Copioo ohould bo oont to
OHPE at tho oamo timo thoy are oont to PUPo. Providing copioo to
OHPE io oooontial for facilitating our offorto to tracfc oito
activitioo and to roopond to Congroooional and othor inquirioo.
It io not noeoooary to provide copioo of oach ronoval notico
to tho adminiotrativo record .coordinator, Stato roprooontativo.
State or Federal truotoo, or "hoadquartoro in inotancoo whore
identical notieoo aro provided to multiple PRPo. Whore thoro are
multiple PRPo at a oito, a copy of ono ronoval notico with a liot
of othor partioo who havo received tho letter would ouffico.
7. Contontn of Ronovnl tlotlco
Aa indicated, tho content of tho ronoval notico nil! vary
depending upon whether tho purpooo of tho letter io to oioply
inforo PRPo of thoir potential liability or whether tho lottor
will aloe bo uood to provide an opportunity for PUP involvonont
in nogotiottioao oithor through "infernal" or "fornal"
negotiation. Tho following highlighto tho conpononto that
ohould bo iacludod in tho throe different typoo of ronoval
noticoo. Sfco opocific content of oach cooponont of tho ronoval
notico ohould bo oooontially tho oano ao doocribod oarlior for
RI/PS and RD/&& general and opocial noticoo, oxcopt whore
othorwioo opocifiod. .
a. Notico of potontinl liability; Zf tho purpooo of tho
removal notico io oiaply to inform PRPo of thoir potential
liability and to provide notico that tho Agency hao or io about
to take a rooponoo action, tho notico ohould contain tho
following compononto: a notico of potential liability; a
discussion about oito rooponoo activitioo that havo boon or
-------
9834.1-0
28
be conduct«d at the aite; • notice on the availability of an
administrative racord; and a notica pursuant S122(a) that tha
apacial notiea proeaduraa will not ba used,
Tha notification undar 1122 (a) should infora PRPs that tha
Agency will not (or did not) usa tha 1122 (a) special notiea
proeaduras for this particular rasponaa action and should provida
an axplanation for that dacision. Tha lattar should indicata
that it is tha Agency's policy not to usa tha spacial notica
proeaduraa for ranovals unlass thara is a six aonth planning laad
tiae prior to tha initiation of tha rasponsa action. Zf thai
rasponsa aetion doas involve a reaoval with • six month planning
laad tiao but tha Aganey aada a case-specific determination not
to usa tha spacial notica proeaduras , tha lattar should provida
an explanation why tha usa of such proeaduras was datarainad to
ba inappropriate for that particular rasponsa action.
b. Notice of potential liability and offMr^WiitiT *° enter
into "informal" negotiation!: Zf tha purpose of tha raaoval
notica is to infora PRPs of their potential liability and to
provide PRPs with an opportunity to enter into negotiations with
•PA without invoking the §122 (a) special notice procedures, the
notice should contain the following eoaponants: a notice of
potential liability; a discussion about site response activities
that will be conducted at the site; a copy of the stateaent of
work or workplan and draft adainistrative order on consent; a
notification pursuant to 1122 (a) that the special notice
procadurea will not be used;* a request that PRPs notify EPA
within a specified period of tiae of their interest to
participate in negotiations; a notice on the availability of the
adainistrativa record; and information on the If A representative
to contact. The 1122 (a) notification should contain the aaae
information discussed in tha proceeding paragraph.
c . Notice of potential liability Ifld opportunity to enter
into "formal" negotiations pursuant to 1122 fe) special notica
procedures ; Zf the purpose of the reaoval notice is to infora
PRPs of their potential liability and to provide PRPs with an
opportunity to enter into negotiations with 1PA using the 1122 (•)
special notice procedures, the notice should contain the
following components: a notice of potential liability; e
discussion about site response activities that will be conducted
at the site; s discussion about the specie! notice procedures and
the negotiation aoretoriua; a copy of the steteaeat of work or
workplan and draft adainistrative order on consent; e discussion
about what constitutes a "good faith offer"; a request that PRPs
notify EPA within a specified period of tiae indicating their
interest to participate in negotiations; a notice on the
availability of the adainistrative record; and information on the
EPA representative to contact. The "good faith offer" should
contain essentially the saae coaponents as described above for
the RO/RA.
-------
9834.10
29
B. CONCLUSION OF NEGOTIATION MORATORIUM AMD
DEADLINE MANAGEMENT FOR R1MOVALS
AC tha conclusion of the S122(o) negotiation moratorium for
ramoval actions. the Regions should have a fully negotiated
adainistrativa ordar on consent which has been signed by the
PRPs. (Where appropriate, a signed consent decree should be
provided). A signad administrative order on consent (or a
consent decree) will show that the negotiation* have been
successfully complated.
The expectation is that the negotiations will be concluded
at the end of the 120 day moratorium aad .the Regions ere strongly
encouraged to conclude the negotiations within this period of
time. Zn instancat where the negotiations do not result in an
agreement, the Regions may seek an extension to the 120 dsy
moratorium, issue an administrative order, or proceed with a
Fund-financed removel. Note that the Regional Administrator mey
grant an extension to the 120 day moratorium only in limited and
appropriate circumstances.
C. ADMINISTRATIVE ORDERS AMD M1COTIATIOM MORATORIUM
FOR REMOVALS
In most instances, use of the special notice procedures for
removal actions will not affect existing policy on issuing
administrative orders for removals since the special notice
proceduras will be issued for only a small portion of removals.
For details on tha Agency's policy on administrative orders refer
to the guidance on "Issuance of Administrative Orders for
Immediate Removals" (2/21/14).
It is necessary, however, to modify existing policy in one
respect. In instances where Regions use the special notice
procedures for a removal action and where issuance of an
administrative order is necessary and appropriate, the Regions
should not issue the order until the end of the negotiation
moratoriums. This ensures that the negotiation moratorium will be
used to negotiate voluntary settlements.
VII.
The policies and procedures established in this document
are intended solely for the guidance of Government personnel.
They are not intended and can not be relied upon to create any
rights, substantive or procedural, enforceable by any party in
litigation with tha United States. The Agency reserves the right
to act at variance with these policies and procedures and to
change them at any time without public notice.
-------
983410
30
VIII. FOR FURTHER INFORMATION
For further information or questions concerning this
guidance, please contact Kathy MacKinnon in the Office of Haste
Programs Enforcement at FTS-475-6770.
-------
98341C
Appendix A
Timing of RD/RA Special Notice Letter
-------
A. General Approach: Iss le RD / RA Special Notice When Release
Draft FS and Proposed Plan
Selection of Remedy Process
Conduct
IttFS
Q^O^^
rJWI^Mr
F&PfOOOMd
Ptan
Public
Com-
rntnt
^t^U^^UU
fWVWw
ROD
Conduct /
RO V
Extomted
Special Notice / Negotiation Moratorium
1
18
i
19
i
20
i
21
i
22
i
23
i
24
i
25
I
26
i
27
1 :• 1
28 21
Timeline (Months)
OO
Ovl
O
-------
B. Alternative Approach: Issue RD / RA Special Notice Prior to
Release of Draft FS and Proposed Plan
Selection of Remedy Process
Conduct
RKFS
FSJPnpOMd
Pubic
Com-
ROD
Conduct
RO
None* and
Extend*
fc • >l^At^ —
NtgoMnn
Moatoffeim
Special Hollos / Nogotlatlon Moratorium
18
19 20 21 22 23 24 25
Timeline (Months)
26
27
OO
28
29
-------
C. Alternative Approach: Issue RD / RA Special Notice Once ROD
Signed
Selection of Remedy Process
Conduct
RKFS
M^^^^^^yC^^A^^^^K
F8/Pfopoood
AMI
Put*
Com-
•»A«^
mra
Q^^f^
f*WW
ROD
Conduct /
• l
Notooand
Extondod
NegotMton
Moratorium
Special Notice / Negotiation Moratorium
18 19 20 21 22 23 24 25 26 27 28 29
Timeline (Months)
oo
o
-------
9834.iO
Appendix B
PRP Settlement Process for RI/FS and
RD/RA
-------
PUP Srt^nMrt Process tor RI/FS
F5
00
L*l
-£*.
-------
"HP SaMtemanl Process tor BP/RA
oo
-------
OSWER * 9834.10
5298
Federal Register / Vol. 53. No. 35 / Tuesday. February 23. 1988 / Noticea
Country
Touw.~
S2MWG
MS 000
«« 7.400
2.000.000
Dated: February S. I960.
LtwnoM L |«HMO.
Assistant Administrator for Water.
[FR Doe. M-3776 Filed 2-22-88; 8:45 «m|
(FML-3330-S)
Supwfund Program; Notte* Latter*,
Negotiation* and Information
Exchange
AGENCY: Environmental Protection
Agency.
ACTION; Request for Public Comment
SUMMARY: The Agency i* publishing the
"Interim Guidance on" Notice Letters. .
Negotiations, and Information _
Exchange" today to inform the public
about these guidelines and to solicit
public comment. This guidance covers
the use of the section 122(e) special
notice procedures and other related
settlement authorities under section 122
of the Comprehensive Environmental'
Response. Compensation, and Liability
Act of 1980 (CERCLA or Superfund) as.
amended by the Superfund Amendments
and Reauthorization Act of 1986 (SARA)
(hereinafter referred to as "CERCLA").
OATC Comments must be provided on or
before April 25. 1988.
AOOfttss: Comments should be
addressed to Kathy MacKinnon, U.S.
Environmental Protection Agency.
Office of Waste Programs Enforcement.
Guidance and Oversight Branch (WH-
527). 4O1 M Street S\V, Washington. DC
2D4«0.
FURTHER INFORMATION CONTACT.
Kathy MacKinnon. U.S. Environmental
Protection Agency. Office of Waste
Programs Enforcement. Guidance and
Oversight Branch (WH-527). 401 M
Street. SW.. Washington. DC 20460 (202)
475-erro.
SUWJEMCKTARY INFORMATION: The
guidance emphasizes the importance of
reaching voluntary settlements with-
potentially responsible parties (PRPs)
and uses notice letters, negotiations, and
information exchange as mechanisms
for facilitating settlements. The guidance
establishes a process for issuing notice
letters to PRPs. including the use of the
special notice procedures under section
122(e) of CFRC1.A. The gi::d;ince
establishes *eparate notification
processes for removal and remedial
actions.
The guidance also discusses the
Agency's general policy for exchanging
information with PRPs. including a
discussion about EPA's release of
information under section 122(e)(l) of
CERCLA and EPA's authorities to
request information from PRPs under
sections I04(e) and 122(eH3Hb) of
CERCLA and section 3007(a) of the
Resource Conservation and Recovery
Act (RCRA).
Finally, the guidance discusses
various aspects of the negotiation
process. This includes a discussion
about negotiation moratoriums that are
triggered by the use of the section I22(e)
'special notice procedures. This also .
includes a discussion about concluding
negotiations and managing negotiation
deadlines.
The Agency encourages public
comment and will reevaluate this
interim guidance in response to such
comments.
The interim guidance follows.
Date: November 25.1987.
|.W. McCnw
Acting Assistant Administrator for Solid
Waste and Emergency Response.
INTERIM GUIDANCE ON NOTICE
LETTERS. NEGOTIATIONS. AND
INFORMATION EXCHANGE
•Table of Contents
I. Introduction
II. Purpose and Scope of Guidance
III. Sta tutor)' Authority
A. Settlements
B. Special Notice Procedures and
Information Release
IV. Information Exchange
A. Information Requests
B. Information Release
V. Notice Letters and Negotiation
Moratorium {or RI/FS and RD/RA
A. Purpose of Notice Letters
B. Genual Notice Letter
1. Whether to Issue General Notice
2. Timing of General Notice
3. Recipients of General Notice
4. Contents of General Notice
C. RI/FS and RD/RA Special Notice Letter!
1. Whether to Issue RI/FS and RD.'RA
Special Notice
2. Notifying PHPs When'Not Appropriate
to Issue Kl/FS and RD/RA Special
Notice
' 3. DO I Role in RI/FS and RO/RA
Negotiations
4. Timing of RI/FS Special Notice
5. Timing of RD/RA Special Nonce
fi. Recipient! of RI/FS and RD/RA
"Special Notice
7. Contenti of RI/FS and RD/RA Special
Notice
D Conclusion of Negotiator Morator^m
«nd Deadline Management for RI/FS and
RD/RA •
VL Notio* Letter* and Negotiation
Moratorium for Removal Actions
A, Notice Letters
1. Whether to Usue Notice for Removals
2. When to Use Special Notice
Procedure* for Removal*
3. Notifying PRPs When Not Appropriate
To Utiliie Special Notice Procedure* for
Removal*
4. DO) Role in Removal Negotiations
S. Timing of Notice for Removal*
6. Recipient* of Notice for Removal*
7. Content* of Notice for Removal*
B. Conclusion of Negotiation Moratorium
and Deadline Management for Removal*
C Administrative Order* and Negotiation
Moratorium for Removal*
VIL Disclaimer
VUL For Further Information
Appendices
Appendix A: Timing of RD/RA Special
Notice Letter Appendix B: PRP
Settlement process for RI/FS and RD/RA
Appendix C: Model Notice Letter* (To be
sent to EPA region* at • later date)
Memorandum
SUBfECT: Interim Guidance on Notice
Letters. Negotiation*, and Information
Exchange
FROM:). Winston Porter. Assistant
Administrator
TO Regional Administrators
I. Introduction
The Superfund Amendments and
Reauthorization Act of 1986 (SARA).
which amends the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
(CERCLA). maintains the importance of
a strong Superfund enforcement
program,1 In particular. SARA
emphasizes the importance of entering
into negotiations and reaching
settlements with potentially responsible"
parties (PRPs) to allow PRPs to conduct
or finance response actions. SARA
generally codified the Agency's Interim
CERCLA Settlement Policy but also
established some new authorities and
procedures that were designed to
facilitate settlements.
A fundamental goal of the CERCLA.
enforcement program is to faciliiate
voluntary settlements. EPA believes that
such settlements are most likely to occur
when EPA interacts frequently with
PRPs. Frequent interaction is important
because it provides the opportunity to
share information about a site and may
reduce delays in conducting response
actions caused by the lack of
communication. Important mechanisms
for promoting interaction and facilitating
communication between EPA and PRPs
1 CERCLA of :yn » «?r.»nd*d b> SAR.\ o! i"«o
IB refcrrcc ic .r. IIM« qy.CJncr as CKRC'._V
-------
Federal Register / VoL S3. No. 33 / Tuesday. February 23. 1968 / Notices 5299
include issuing notice letters, entering
into negotiations, and exchanging
information with PRPs.
This guidance replaces the October
.2. 1984 guidance on * Procedures for
Issuing Notice Letters" and the October
9. 1965 guidance on 'Timely Initiation of
Responsible Party Searches. Issuance of
Notice Letters, and Release of
Information.'" • Although certain
procedures and the timing of various
activities have been modified, this
guidance retains many fundamental
aspects of the October 12.1984 and
October 0.1985 guidances. In particular.
this guidance re-emphasizes the
importance of timely issuance of notice
letters and the exchange of information
between EPA and PRPs. In addition, this
guidance incorporates a moratorium and
"formal" period of negotiation (referred
to as a negotiation moratorium) into the
settlement process. EPA's commitment
to carrying out these activities is crucial
for supporting our fundamental goal of
facilitating negotiated settlements.
II. Purpose and Scope of Guidance
The purpose of this guidanc: is to
assist the Regions in establishing
procedures for the issuance of notice
letters to PRPs. for the conduct of
negotiations between EPA and PRPs.
and for the exchange of information
between EPA and PRPs.
This guidance addresses the use of
both "general" and "special" notice
letters for removal and remedial actions.
Special notice letters differ from general
notice letters because special notices
• trigger the negotiation moratorium. The
negotiation moratorium is the period of
time where a moratorium is imposed on
certain EPA actions and a period of
"formal" negotiations is established
between EPA and PRPs.
Use of both general and special notice
letter* are discretionary. However, the
Regions are expected to issue general
and special notices for the vast majority
of remedial actions. Such notice letters
will be issued for remedial
investigations/feasibility studies (RI/
FSs) and remedial designs/remedial
actions (RD/RAs). Although it u
generally appropriate to issue a
"removal notice" for all removal actions.
the Regions are not expected to invoke
the section 122(e) special notice
procedures for most removals.
This guidance also addresses the
timing, duration, and conclusion of the
negotiation moratorium. Finally, this
guidance discusses the process of
information exchange beiwcen EPA a.-.d
PRPs. including requests for and
releases of site-specific information.
III. Statutory Authority
A. Settlements
Sections 104(a). 122(a). and lZ2(e)(6)
authorize settlements and establish
certain conditions for allowing PRPs to
conduct or finance response actions.
Section 104(a) authorizes EPA to enter
into an agreement with PRPs to allow
PRPs to conduct or finance response
actions in accordance with section 122 if
EPA determines that the PRPs will
conduct the response action properly
and promptly. Under section 104(a).
PRPa cannot conduct the RI/FS unless
EPA determines that the PRP is qualified
to perform the RI/FS. EPA contracts
with or arranges for a qualified person
other than the PRP to assist EPA in
overseeing and reviewing the RI/FS. and
the PRP agrees to reimburse the Fund for
the COSM EPA incurs in overseeing and
reviewing the PRFs RI/FS.
Section 122(3) similarly authorizes
EPA to enter into agreements with PRPs
to perform response actions if EPA
determines the action will be conducted
properly. Section 122(a) also provides
for EPA. when practicable and in the
public interest to facilitate settlements
with PRPs to expedite effective remedial
actions and to minimize litigation.
Section 122(e)(6) provides that no PRP
may undertake any remedial action at a
facility where EPA or a PRP pursuant to
an administrative order or consent
decree under CERCLA haj initiated an
RI/FS unless (he remedial action has
been authorized by EPA.-
B. Special Notice Procedures end
Information Release
Sections 122(e) and 122(a) contain
provisions relating to the special notice
procedures and the release of
information to PRPs. Section.122(e)
provides for EPA to utilize the special
notice procedures if EPA determines
that a period of negotiation would
facilitate an agreement with PRPs and
would expedite remedial actions.
Section 122(e) also provides for EPA to
release certain information to PRPs.
Such information includes, to the extent
available, the names and addresses of
other PRPs. the volume and nature of
substances contributed by each PRP.
and a ranking by volume of the
substances at the facility.1 In addition.
this section provides for EPA to make
such information available in advance
of the special notice upon request by a
PRP in accordance with procedures
provided by EPA.
Issuance of a special notice triggers a
moratorium on the commencement of
certain actions by EPA under section
104 or section 106. The purpose of the
moratorium is to provide for a period of
negotiation between EPA and PRPs. The
moratorium prohibits EPA from
commencing any response action under
section 104(a). and an RI/FS under
section 104(b). or an action under
section 106 for 60 days after receipt of
the notice. If EPA determines that a
"good faith offer" has been submitted by •
the PRP within 60 days after receipt of
the special notice. EPA shall not
commence an action under section
104(a) or take any action against any
person under section 106 for an
additional 60 days or commence an RI/
FS under section 104(b) for an additional
30 days.
Under section lZ2(e)(2|(a). EPA may
commence any additional other studies
or investigations authorized under
section 104(b). including the remedial
design, during the negotiation period.
Under section 122(e)(2)(C). if an
additional PRP is identified during the
negotiation period or after an agreement
has been entered into. EPA may bring
the additional party into the negotiation
or may enter into a separate agreement
with the PRP. Under section 122(e!(5!.
EPA is not prohibited from ur.densXi.-.j
a response or enforcement action during
the necoiia'.'.on period when there is a
significant threat to public health or the
environment.
Section 122(a) provides that if EPA
decides not to use the special notice
procedures established under section
122(e). EPA is required to notify PRPs in
writing of this decision along with an
explanation why it is inappropriate to
use such procedures. The decision by
EPA to use or not to use the special
notice procedures is not subject :o
judicial review.
IV. Information Exchange
The exchange of information between
EPA and PRPs is crucial for facilitating
settlements. Information exchange
should be an ongoing process of
communication. EPA uses inforxation
1 The»t guid«nce« were t»«we(i wrdf OStt E£
DiTTC't*« Sum be ri 9fl34 1 jnd 9634 1 reir-f c'.:* »!
reco*>nited that therr may be
li.Tiitar.ona to the availability of information it e«r:y
phatc* of the rraponae action In particular.
Congreea noted ih*i ii.^ Rt.'FS special none? need
noi be acc;mpanieC by information on volume anc
nature of wai'e anc ranking if :nn information :i
not avaiub-e a: trtf «'art cf ir.e R! 'FS A ieo.raif
nonce t/td tnlomtiton relcaa« thoijld be p.t*viu.:J
for private p«rti«a who actuall> conduct lha
remedial Action and information on volume, r.ai'jre
and rantir.g of wallet ihould be made • %•<:..» Die
roultneiy m trt:i nrr.e Se* the Conference R^aor* r.n
thf Superfund Amenomenii *i£ Re tuihor:i»tior.
Act oi :9«8 98 Cone. . :o Sen. Reac-t »-4>i; yv. :sj
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Fadaral R&gjotof / Vol 53. No. 35 / Tuesday. February 23. Igg8 / Notices
obtained from PRPs to determine
potential liability, to determine the need
for response, and to o up port the
oelection of the remedy. PRPa uoe
information obtained from EPA to
organize among themoelves and to
develop a "good faith offer" to conduct
or finance reoponoe octiono.
A. Information Requests
EPA may request information from
PRPo about VQDOUO activities and
conditions under section lQ4(e) of
CERCLA and under oection 3Q07(o) of
the Reoource Conservation and
Recovery Act (RCRA). In addition. EPA
may iooue adminiotrative oubpoenao
under oection 122(e)(3)(b) of CERCLA.
Information commonly requested
includes details concerning waste
operations and waste management
practices, the type and amount of
oubotances contributed by each PRP. as
fell as the name of other PRPs that
contributed substances to the site.
Information requests ohoutd be iooued
no early as practicable and may be
issued as a separate letter during the
PRP oearch process, as pan of the
general notice letter, or through an
administrative subpoena. A detailed
discussion about the use of information
request letters and administrative
oubpoenas to contained in the
forthcoming "Guidance on Uoe and
Enforcement of Information Requests
and Administrative Subpoenas under
CERCLA "sections 104(e) and 122(e)."
The Regions have the discretion to
decide whether to issue an information
request as a separate letter during the
PRP oearch or as a component of a
general notice letter. Isouing a separate
information request letter in advance of
the general notice may be advantageous
in oituations where information from
PRPo to needed to determine whether it
io appropriate to iooue a notice letter to
ouch portico.
information roqueots ohould be
developed in accordance with the
forthcoming guidance on information
requests and administrative oubpoenao
ao mentioned above. An information
request should olso indicate that EPA
plans to vigorously enforce information
requests with the new enforcement tools
authorized under SARA which include
iaauing orders under section !CM(e)(S).
Finally, the information request should
indicate that it is the PRPs responsibility
to inform EPA whether information they
provide to EPA is confidential and
oubject to protection under section
104(e) of CERCLA.
B. Information Release
It is important to gather and release
Bite-8pec:fic information to PRPs as soon
oo raaoonably practicable. Gathering
and releasing such information early in
the proceio will not only expedite
response and enforcement activities but
will help PRPa organize and negotiate
among themselves aa well.
Ao indicated, oection 122fe)(l)
providoo for the rcleaoe of certain
information to PRPs to the extern ouch
information io available. Such
information included the Barnes and
addreooeo of other PRPo. the volume and
aature of oubotaaceo contributed by
each PRP. and a ranking by volume of
tho oubatanceo at the facility. Thin
toforaattoa io to be provided to PRPo ia
advoaco of the opeciol aotica in
accordance with prccedureo developed
by EPA.
Congreoo recognised the UrailatSoao to
EPA'o ability to make certain
information available to PRPs.
especially early in the response process.
Therefore, this information can be
released only to the extent ouch
information is ovailoble. if the Regions
have information on volume, the
Regions should develop volumetric
rankings and should make ouch
information available to PRPs as coon
as practicable. However, due to their
preliminary and summary nature. EPA
• will not expand resources to explain or
defend any list or ranking. Uoto or
rankings relecoed to PRPs aad others
ohould always contain appropriate
disclaimers.
The Regions are encouraged to release
information to PRPs as soon as
reasonably possible. The Regions may
respond directly to individual PRP
requests for information, may use the
. notice letters ao vehicles to release such
information to PRPs. or may eotablioh
alternative mechanisms in oome
oituationo ao discussed below. The
Regions are otrongly encouraged to uoe
the notice letters to release oite-opecific,
information. In particular, uoe of the •
general notice may provide a convenient
opportunity to release information in
advance of the opecial notice pursuant
to the statutory provision that EPA
releane such information in advance of
the opecial notice in accordance with
procedures developed by EPA. •
Although it is generally preferable to
release information to individual PRPs
through notice letters, alternative
mechanisms may be used in unusual
circumstances. For example, in
instances where there are many PRPs
and/or where there is a substantial
amount of information to be released.
the Regions may consider making the
information available through a central
mechanism (e.g. through a PRP steering
committee if one has been formed and if
the committee has agreed to be a
claarinQhouoe for distributing
information to other PRPo). An
alternative would be to indicate in the
notice letter that the Region has oite-
opecific information that will be made
available to the PRPs in a manner
apecified in the letter.
V. PtesSca LoWera
BfeateJws to KJ/FS a®^ SBI/RA
Taio guidance createo a oyoteasatic
pswceso for ioouing three osporate notice
towcro for remedial actioao. Toe three
exotica lottera are (1) the ceaofol B®4see.
(2) tas RI/FS opecial aotice. and (3) the
RD/RA opoaal notice. ETOSS shoiash the
K2/F5 and RD/RA opecial aoticeletterp
ara oeparalo lettera. the are diooacood.in
the oaa'e oection below oince the
Cfflascsjjt of these letters io basically the
oame. in instances where the content of
the Ri/FS and RD/RA opecial notices
differ, separate oections are presented.
Also, this guidance io written with the
oooumption that each notice letter will
be iooued in sequence. Goaooquently.
the guidance has been structured so that
certain information provided or
requested in one letter is not repeated in
a subsequent letter. The content of
actual letters may. however, need to be
modified in situations where this
proceoo is aot followed.
For example, there may be a oitootioin
whore oitc activities era already
underway and where the Region do
ready to issue the RI/FS opecial aotice
but has not issued a general notice, in
this instance, it would not be necessary
to wait to oend the special notice until
after a general notice io iosued.
However, it may be appropriate to
include certain aspects of the general
notice into the special notice.
A. Purpose, of Notice Letters
The purpose of the genarol saotice So to
Inform PRPa of their potential liability
for future reoponoe coots, to begin or
continue the proceso of information
exchange, and to initiate the process of
"informal" negotiations. la additiojn. She
general notice informs PRPs about the
possible use of the section 122(e) opecial
notice procedures and the subsequent
moratorium and "formal" negotiation
period.
The purpose of the special notice is
oimilar to the general notice, except that
the special notice is also used to invoke
the statutory moratorium on certain EPA
actions and to initiate the process of
"formal" negotiations. Although the
general notice does not trigger o
moratorium on any EPA action and does
not invoke a "formal" period of
negotiation, the general notice is
expected to initiate a dialogue between
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Federal Register / Vol. 53. No. 35 / Tuesday. February 23. 1986 / Notices
5301
EPA. and PRPs. Ittuance of • general
notice ihould be viewed as a
mechanism for initiating negotiation]
whereat issuance of a special notice
ihould be viewed a* a mechanitm for
concluding negotiations.
The term "informal" negotiations does
not mean that such negotiation* are not
teriout efforts to reach a settlement.
Rather "informal" negotiation! refers to
any negotiations that are not conducted
•i part of the negotiation moratorium
triggered by isauance of a special notice
under section 122(a). The term*
"informal" and "formal" negotiations
are used to draw a distinction between
negotiations which are and are not
covered by the section 122(e)
moratorium.
B. Genera/ Notice Letter
Agency notification procedures should
provide PRPs with sufficient tir- to
organize and develop a reasonable offer
to conduct or finance the response
action. Toward this end. the Regions^
should contact PRPs prior to issuing a
section 122|e) special notice by issuing a
general notice letter.
1. Whether To Issue General Notice
A general notice letter should be
issued at the vast majority of sites that
ire proposed for or listed on the
National Priorities List (NPL) where
negotiations for the RI/FS and RD/RA
lave not yet been initiated.
Circumstances where it may not be
appropriate to issue the general notice
include sites where-'a notice pursuant to
previous guidance was issued prior to
the reauthorization of CERCLA or where
the Region is ready to issue a special
notice at the site. These exceptions are
important for minimizing any possible
disruption to ongoing activities. •
2. Timing of General Notice
The general notice letter should be
sent to PRPs as early in the process as
possible, preferably once the site has
been proposed for inclusion on the NPL
Early receipt of the general notice will
ensure that PRPs have adequate
knowledge of their potential liability as
well as a realistic opportunity to
participate in settlement negotiations.
When a separate information request
letter has been sent to PRPs prior to the
general notice, the information request
should be sent as early as possible lo
avoid any delay in issuing the general
notice.
3. Recipients of General Notice
General notice letters should be sent
to all parties where there is sufficient
evidence :o make a prelirr.ir.an-
deicrmnation of potential liability
under section 107 of CERCLA. If there is
doubt about whether available
information supports issuance of the
general notice, separate information
requeit letters may be sent to such.
parties prior to issuing the notice. If a
Federal agency has been identified as a
generator at a facility not owned/
operated by the Federal agency, such
agency should be routinely notified like
other PRPs.
If additional PRPs are identified after
the general notice but before the RI/FS
special notice is issued, the Regions
should provide a general notice to those
additional PRPs. If additional PRPs are
identified after general and special
notices are issued, the additional PRPs
need not receive a general notice before
receiving the appropriate special notice.
However, relevant aspects of the
general notice should be incorporated
into the special notice.
Copies of the general notice should be
provided to the Regional administrative
record coordinator, the appropriate
State representative, the State or
Federal trustee if a trustee for natural
resources has been designated, and to
EPA headquarters at the same time
notices are sent to PRPs. The copies of
notices to headquarters should be sent
to the Information Management Section
within the Program Management and
Support Office of the Office of Waste
Programs Enforcement (OWPE).
Providing copies to the administrative
record coordinator is important for
ensuring that the notice is placed in the
administrative record.4 Providing copies
to the Stale representative and the State
or Federal trustee is important for
ensuring that States are appropriately
informed about possible future
negotiations.1 Providing copies to
OWPE is essential far-permitting entry
into the Superfund Enforcement
Tracking System (SETS). Entry into sets
will facilitate our efforts to track site
activities and to respond to
Congressional and other inquiries.
Direct Regional input of data into SETS
on notice letter recipients is planned for
FY 1988.
It is not necessary to provide copies of
each general notice to the administrative
record coordinator. State representative.
State or Federal trustee, or headquarters
in instances where, identical notices are
provided to multiple PRPs. Where there
* A diKuinon atwgt placing nonce letters in the
administrattvtf recoro it co*•rt-d in the forthcoming
"Guidance on me Administrative Record for
Selecting • Response Action Under CERC'—V ard
in the preamble to tne forthcoming revisions to trie
National Conlir.genc> Pl^n.
* State participation in negotiation) is covered in
the lonr.r.omir.c 'Interim Guidance nr, F.PA-S:i!e
Relations m CESCL.*! £r.:'jfi.emcnt "
are multiple PRPs at a site, a copy of one
general notice with a list of other parties
who have received the letter would
suffice.
4. Contents of General Notice
The general notice letter should
contain the following components: (a) A
notification of potential liability for
response costs, (b) a discussion about
future notices and the possible future
use of special notice procedures, (c) a
general discussion about site response
activities, (d) a request for information
•bout the site (if appropriate), (e) the
release of certain site-specific
information (where available), (f) a
discussion about the merits of forming a
PRP steering committee, (g) a notice
regarding the development of an
administrative record, and (h) a
deadline for response to the letter and
information on the EPA representative
to contact
a. Potential liability: The letter should
inform parties that they are potentially
liable for response costs under section
107 of CERCLA. including the costs of
conducting the RI/FS and RD/RA. The
letter should define the scope of
potential liability and should briefly
explain why the panics have been
identified as PRPs.
b. Future notice under section I22!al
and section 122/e/-The letter should
indicate that EPA will notify the party at
an appropriate point in the future. The
letter should specify that this notice will
either be a section 122(a) notice or a
section \22{e] special notice and should
explain what these notices are.
The letter should indicate that the
section 122(a) notice is a notice which
informs parties that EPA will not use the
section 122(e) special notice procedures.
The 1 .>er should indicate that the notice
will provide an explanation for the
decision not to use the special notice
procedures.
The letter should also indicate that a
section 122(e) special notice will invoke
the negotiation moratorium. The letter
should make clear thiil issuance of a
section I22(e] special notice letter is
discretionary and may be used if EPA
determines that use of such procedures
would facilitate an agreement and
expedite remedial action. The letter
should also explain the purpose of the
special notice and the subsequent
negotiation moratorium. Informing PRPs
about the special notice procedures and
the negotiation moratorium will alert
PRPs to possible future negotiations and
increase their awareness of their
opportunities for participation in such
negotiations.
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3302
Federal Registar / Vol. 53. No. 35 / Tuesday. February 23. 1968 / Notices
c. Site response activities: The letter
ohould genaraUy diDcttoo the activities
EPA plans to undertake at the site.
Where appropriate, such activities
ohould include ocheduled start or
completion daleo for the RI/FS or RD/
RA. Instances where it may not be
appropriate to provide start or
completion dates include situations
where the general notice is issued very
early in the process and where specific
doteo have not yet been set. or where it
to expected that target dates ore likely
to change significantly.
d. Information request: The letter
ohould request information on.
oubotonces oent to or present at the site
and the names of other PRPs pursuant to
oection I04(e) of CERCLA and/or
oectton 3C07(a) of RCRA if o separate
information request has not already
been issued. The content of the
information request should be consistent
with the forthcoming "Guidance on Use
and Enforcement of Information
Requests and Administrative Subpoenas
Under CERCLA gections 104(e) and
122(e)."
e. Information release: At a minimum.
the letter should release the names and
addresses of other PRPs who have
received the general notice letter. In
addition, to the extent such information
to available, the letter should include the
volume and nature of substances
contributed by each PRP and a ranking
by volume of the substances at the
facility if ouch information has not been
previously releaoed.
f. PRP steering committee: The letter
should.request that the PRPs identify a.
member of their organization who will
represent their interests. In addition, the
letter should recommend that PRPs form
a steering committee to represent the
group's interests in possible future
negotiations. The letter should indicate
that establishing a steering committee is
important for facilitating negotiations
with EPA.
g. Administrative record: The letter
obouid be used oo a vehicle for
informing PRPo of the availability of an
administrative record that will contain
documents which form the basis for the
Agency's decision on the selection of
remedy. The letter should indicate that
the record will be open to the public for
inspection and comment. The letter
should also provide information
regarding the opening of the record and
where it will be located.
'h. PRP response and EPA contact: The
letter should encourage PRPs to notify
EPA by a specified date of their interest
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Federal Register / Vol. 53. No. 35 / Tuesday. February 23. 1988 / Notices
5303
administrative record containing
technical documents supporting the
Agency's decision on the selection of
remedy. The notice should indicate that
the record is open for public inspection
and comment and should specify where
the record will be or haj been located.
3. OOf Role in RI/FS and RD/RA
Negotiations
The Regions should notify the Chief of
the Environmental Enforcement Section
in the Department of Justice (DOJ) prior
to issuing special notice letters where
settlement by a consent decree is
contemplated. A copy of this
memorandum should also be provided
to the Office of WasU Programs
Enforcement and the Office of
Enforcement and Compliance
Monitoring in Headquarters.
The memorandum to DO) should
indicate when the Region intends to
issue the special notice. Because most
Rl/FS negotiations involve consent
orders, notice to DO) on the Rl/FS is not
ordinarily necessary. However, where a
site is in litigation or where settlement
by consent decree is expected. DO|
should be notified at least 30 days prior
to issuing the RI/FS special notice. In
addition, where the resolution of the
matter by an administrative order is
expected to involve a compromise of
past or future response costs and the
total response costs will exceed
SSOOOOO. OO) is to be notified. DOI's
role will be to review the compromise of
the daim pursuant to section 122(h)(l|
but not to review the administrative
orderfor the RI/FS. For RD/RA
negotiations, the notice should be sent
to OO| at least 60 days prior to issuing
. the RD/RA special notice. The
memorandum should also identify' the
EPA Regional representative DO| should
contact
In addition, the Regions should
consult with the Chief of the
Environmental Enforcement Section
phor to sending a copy of any draft
content decree or any outline of s draft
consent decree to PRPs. The Regions are
encouraged to include a draft consent
decree with the RD/RA special notice or
soon thereafter as discussed below.
4. Tuning of RI/FS Special Notice
It is important that PRPs receive the
Rl/FS special notice letter as soon as
practicable. Of greater importance, the
letter must be serf sufficiently in
advance of obligations for the RI/FS so
that negotiations do not delay the
initiation of the RI/FS by the Fund in the
event the negotiations do not result in
an agreement providing for the PRPs to
conduct or finance the RI/FS. Timely
receipt of the special nonce will ha\'e a
significant effect on Ttre PRPs ability for
meaningful participation in formal
negotiations.
The RI/FS special notice letter should
be sent to PRPs no later than 90 days
prior to the scheduled date for initiating
the Rl/FS. The scheduled date for
initiating the RI/FS refers to the date
fund* will be obligated to commence
response activities. A minimum of 90
days is important for ensuring that the
negoa'ation'mortorium does not delay
initiation of the Rl/FS in the event
negotiations do not result in a
settlement. The time for service by mail
should be taken into account
S. Tuning of RD/RA Special Notice
The timing of the RD/RA special
notice letter will have a significant
impact on both the success of
negotiations and on EPA's ability to
move forward with implementing a
rerr >dy without delay. As indicated
earlier, "formal" negotiations pursuant
to special notice are not the sole vehicle
for reaching settlements. "Informal"
negotiations must occur throughout the
process and in advance of the special
notice. To assure that "formal"
negotiations are productive. EPA must
initiate PRP search and information
exchange activities as well as
"informal" negotiations as early as
possible.
The primary purpose of the special
notice procedures is to facilitate
settlements through negotiation. A
primary concern in determining when to
issue an RD/RA special notice is
whether there is a likelihood that
meaningful negotiations can be
conducted at a given stage in the
process. Another concern is that, to the
extent practicable, the negotiations must
be scheduled to minimize any delay in
the remedial design and remedial action.
A final concern is that negotiations be
carried out in a way that does not
undermine or have the appearance of
undermining the public participation
process.
This guidance establishes an
approach which identifies when the
Regions must generally issue the RD/RA
special notice letter. The Regions may.
however, adopt an alternative approach
under appropriate circumstances.
Appendix A contains illustrations of the
three approaches discussed below.*
a. General Approach: Issue special
notice when re/ease draft FS and
proposed plan for public comment. The
Regions generally must issue the RD/RA
special notice when the draft feasibility
study (FS) and proposed plan * are
released to the public for comment. As
shown in Appendix A. issuance of the
special notice with the release of the
draft FS and proposed plan triggers the
initial 60 day negotiation mortorium.
The initial 60 day negotiation
moratorium begin* at the start of the 30
day public commenf period and. in
conjunction with the first 30 days of the
60 day extended negotiation
moratorium, is concurrent with the
Record of Decision (ROD) review and
approval process. The remaining 30 days
of the extended negotiation moratorium
is concurrent with the initial phases of
the remedial design. EPA's ability to
sign the ROD is not affected by the
duration of the negotiation moratorium.
The ROD may be signed at any point
after the close of the public comment
period and the preparation of the
responsiveness summary for the public.
In most cases, commencing formal
negotiations at the same time that the
draft FS and proposed plan are released
will properly balance the considerations
stated earlier relating to EPA's ability to
conduct meaningful negotiations, to
minimize delay in implementing the RD/
RA. and to maintain the integrity of the
public participation process. Under this
approach, formal opportunity for PRP
involvement would begin at an eariy yet
concrete stage in the process. Early
participation may be especially •
advantageous in situations where PRPs
have not been-previously or
substantially involved in Ri/FS
activities. In addition. PRPs and :he
public would have knowledge of the'
possible range of alternative* through
the draft FS and proposed plan prior to
"formal" negotiations. This information
is important for assisting the PRPs in
developing a meaningful "good faith
offer" for conducting or financing the
RD/RA.
b. Alternative Approach: Issue special
notice prior to release of draft FS end
proposed plan for public comment.
Although the Regions generally will
issue the RD/RA special notice when
• The lime penod decided in (he following
discussion and illustrated in Appendix A reflect
"be»i case" >cr nsn~s *.T.?rr vanous response tnd
enforcement activities are expected to be earned
ou: "ufiou! deii> For example, the puDlic commen;
p«nod Issis )0 aayi'tnd does not late into account
• DOMicie e»ter.s:on.
' The proposed pUn refer* to 'he pud-c
participation document developed pursc^m to
MCtion 'l'T(a). This :> a non-legjl. norviecnnical
document that describes the alter^antes deianec Crtcu*i>*jn of
the proposed plan wt!l be cortatnec .f- '?'
forthcoming "Guidance on Docurr.eniirs Dfcii'ons
a: Suoerfund S'tes ' (referreo 10 41 tr.f 3OO
Guidance
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iotsr / Vol. 53. No. 35 / Tuesday. February 23. 1988 / Notices
the draft FS and propooed plan ore
released (a the public for comment, the
Regions arc encouraged to iooue the
special notice earlier in the proceso if
tfeio action would facilitate the proopects
for reaching a settlement. If a Region
choooes to follow thio approach, the
Region ohould include «rit& tfeo spatial
notice a summary or foci oheet of the
alternatives) EPA has screened and the
alternatives the Agency ia cufffeatly
conoidering.0 .
Ao ohown in Appendix A, the RD/RA
o^octol notice may be iooued prior to
EPA'o release of the draft FS and
propooed plan, loouoraco of the opsaol
notice triggers the initial £0 day
raGQOtiation moratorium. The initial
negotiation moratorium io concurrent
with the review and release of the draft
FS and proposed plan. The initial
negotiation moratorium ia completed
prior to the initiation of the public
comment period. The public comment
period is concurrent with the first 30
days of the extended negotiation
moratorium. The remaining 30 days of
the emended negotiation moratorium is
concurrent wish the ROD review and
approval process. The ROD could be
oignod and the negotiation moratorium
could be concluded ot about the same
tesae. EPA'o ability to oign the ROD is
siot affected by the negotiation
moratorium. The ROD may bo signed at
any point after the close of the public
conuaent period and the preparation of
the responsiveness summary for the
public.
In many cases, providing special
notice at this early stage may be
inappropriate because too much
uncertainty would exist about the
remedy to allow for meaningful
negotiations. However, under other
.circumstances it may be appropriate to
SOCUQ the special notice early in the
proeeoo. especially in situations where
thero ib a relatively small group of PRPs.
it io clear what the remedy ia" likely to
be, and-the remedy io not lihely to be
controversial.
Where circumstances permit isouance
of the special notice at this early stage.
on advantage to this approach is that
the ROD review and approval process
and the negotiation moratorium could be
concluded at about the same time. This
° Releoce of a nummary or foci sheet on the
oliomoiivcfl thoi hove been screened and (he
oliornotivoo that ore being conoidorod to important
for facilitating negoiiauoiu 01 thio early auge in the
remedial procena. Thio information will be uocful to
P&Pv io davotoping their "good fjith offer" for
OttndvcunQ or financing o mponoe actioa and twill
be important for informing PRPs about the
alterrutlvoo tho Agancy io ctmokdenng ot the me.
Tbfl Regvono should includa the summary of
ajlartuitvel or faci one«t in the administrative
record for eoch on*
would help oooure that cleanup occurs
as soon as possible whether through a
negotiated settlement or Fund-financed
action. In addition, there would be an
early opportunity to inform PRPs of
various remedial alternatives under
consideration by EPA prior to EPA's
Identification of the propooed plan.
Early participation raay be
advantageous where PRPa have not
been previously or oubotaaGSally
involved in Rl/FS activities.
e. Alternative Approach: Issue special
notice crhen (ho ROD io signed.
Although the Regions generally will
fooBG the RD/RA opecial notice letter
when the draft FS QRd propooed plan
ore released to the public for comment.
there raay be oome limited
circumstances where it is appropriate to
issue the notice later in the process (i.e.
when the ROD is signed). This approach
may be followed, however, only where
the Region can provide adequate
justification and where the Region has
obtained prior approval from
Headquarters. Approval must be
obtained in writing from the Directors of
the Office of Waste Programs
Enforcement and the Office of
Emergency and Remedial Rosponoe.
As shown in Appendix A. wider this
approach the RD/RA ojjsoaJ notice
would not be issued oatil the ROD io
signed. Thus, the entire £0 to ISO day
negotiation moratorium would'not occur
until the remedial design phase.
An advantage to this approach is that
since the ROD would be signed and the
remedy would be selected at the start of
the RD/RA negotiation moratorium, the
PRPa would know precisely which
remedy the "good faith offer" and the
negotiations should focus on. In
addition, since the negotiations would
begin after the close of the public
comment period, the PRPs and EPA
roould hove the benefit of knowing the
* public comments.
The major disadvantage to thio
approach is that the negotiation
moratorium would not occur until the
end of the process (i.e. not until the
beginning of the remedial design phase).
Sosuing the special notice at this point
would create the greatest potential for a
subsequent delay in implementing the
remedy.
Instances where it may. however, be
appropriate to issue the special notice
later in the process (i.e. not until the
ROD is signed) may be where more time
is needed to conduct informal
negotiations, where the site is
particularly complex, or where there is
an extraordinarily large number of PRPs
(e.g. hundreds of PRPs). Another
example ma\ be where there is little
expectation that a Fund-financed
remedial action will occur in the near
future at an enforcement-lead site. If
Fund-financed activities are not
expected to occur and a later
moratorium would facilitate cleanup, it
may be less important to initiate and
conclude negotiations early in the
process.
a Recipients of Rl/FS and RD/RA
Special Notice
The Rl/FS and RD/RA special notice
letters ohould bo oont to oil parties
where there ia otaffiaent evidence to
raake a preliraisiary determination of
potential liability under oection S07 of
CERCLA. If there io doubt about
whether available mfefsnation supports
isouance of the Rl/FS and RD/RA
opecial notices, oeparate information
request letters may be sent to such
parties prior to issuing such notice. If a
Federal agency has been identified as a
generator at a facility not owned/
operated by the Federal agency, such
agency should be routinely notified like
ether PRPs.
Section i22(eJ{2J(C) authorizes EPA to
bring additional parties into
negotiatiofflo or to enter into a separate
a^aessoat with {parties rahen additional
PRPs QPO Mfatiffiod dastng the
negotiation period o? after-an agreement
boo boon entered onto. The Regioito may
provide a opecial notice to additional
parties if they are identified after
isouance of the Rl/FS special notice
letter. However, issuance of a special
notice to additional parties would not
change the duration of the negotiation
moratorium. The special notice m«y
invite PRPs to participate in remaining
negotiations, but would not extend the
pre-existing negotiation moratorium.
Copies of the opecial "notices should
be provided to the Regional
administrative record coordinator, the
appropriate State representative; the -
State or Federal traotee if a trustee for
natural resources has been designated.
and to EPA headquarters at the same
time notices are sent to PRPs. The
copies of notices to headquarters should
be sent to the Information Management
Section within the Program Management
and Support Office of the Office of
Waste Programs Enforcement (OWPE).
Providing copies to the administrative
record coordinator is important for
ensuring that the notice to be placed in
the record'. Providing copies to the State
representative and the State or Federal
trustee is important for ensunng that
States are appropriately informed about
posoible future negotiations. Providing
copies to OWPE is essential for
permitting entry into the Superfund
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Federal Register / Vol. 51 No. 35 / Tuesday. February 23. 1988 / Notices
5305
Enforcement Tracking System (SETTS).
Entry into SETTS will facilitate oar efforts
to track site activities and to respond to
Congressional and other inquiries.
Direc: regional input of data into SETTS
on notice letter recipients is plinned for
FYiaaa.
It is not necessary to provide copies of
each special notice to the administrative
record coordinator. State representative.
State or Federal trustee, or headquarters
in instances where identical notices are
provided to multiple PRPs. Where there
—are multiple PRPs at a site, a copy of one
special notice with a list of other parties
who have received the letter would
suffice.
7. Contents of RI/FSand RD/RA Special
Notices
The RI/FS and RP 'RA special notice
letters, should contain the following
components: (a) A notification of
potential liability, (b) a diseussron about
the special notice and subsequent
negotiation moratorium, (c) a discussion
about the response activities to be
conducted, (d) a copy of a statement of
work or workplan and a draft
administrative order on consent for the
RI/FS. (e) a copy of a draft consent
decree for the RD/RA (if possible}, [f) a
discussion about what constitutes a
"good faith offer" for the RI/FS. (g) a
discussion about what constitutes a
"good faith offer" for the RD/RA. (h) a
release of cenain site-specific
infprmatipn (where available and
appropriate! (i) a demand for payment
. of EPA costs incurred to date, (j) a
notification about the administrative
record, and (k) a deadline for response
to the letter and the name of the EPA
representative to contact.
a. Potential liability: The letter should
specify that PRPs are potentially liable
for the costs of conducting the RI/FS or
the RD/RA. A detailed discussion about
potential liability is not necessary
particularly if the RI/FS or RD/RS
special notice references the general
notice.
- b. Special notice and formal
negotiations: The letter should discuss
the purpose of the special notice and the
subsequent negotiation moratorium. The
level of detail will depend upon whether
the PRP has received the general notice
and whether the general notice provided
an adequate discussion. At a minimum.
the letter should make clear that EPA is
inviting PRPs to participate in "formal"
negotiations for PRP conduct of :he Rl/
FSor RD/RA and that this letter
automatically triggers the formal
negotiation period. In addition, it is
important that the special notice
indicate the date the negotiation
morator.iin will conclude in the absence
of «nd in the event of a "good faith
offer." Finally, the letter should explain
thai a consent order or consent decree
should be finalized by the end of the
moratorium.
c. Response actions to be conducted:
The letter should identify the response
activities EPA plan* to conduct at the
site and provide scheduled dates for
initiating soch activities if appropriate.
d. Statement of work or workptan and
draft administrative order on consent
for M/FS special notice: The letter
should provide • statement of work or
workplan and draft administrative order
(AO) on consent Such information is
crucial to PRPs in their development of a
"good faith offer" to EPA for conducting
or financing the RI/FS and for ultimately
facilitating settlements. The Regions are
encouraged- to provide the draft AO on
consent with the notice letter if
practicable. At a minimum, the letter
should contain, a copy of the statement
of work with the expectation that the
draft AO will follow as soon as
practicable.
e. Draft consent decree for RD/RA
special notice: The letter should contain
a copy of the draft consent decree if
possible. It is important that PRPs have
the draft consent decree at the jiart of
negotiations or soon thereafter since the
decree contains important information
which will assist PRPs in developing
their "good faith offer" to EPA.
f. "Good fait* offer'for RI/FS. The
letter should indicate that a "good faith
offer" is a written proposal which
demonstrates the PRP's qualifications
and willingness to conduct or finance
the RI/FS. A "good faith offer" for the
RI/FS should include the following:
• A statement of the PRPs willingness
to condut or finance the RI/FS which is
generally consistent with EPA's
statement of work or work plan and
draft administrative order on consent or
provides'a sufficient basis for further
negotiations;
• A paragraph-by-paragraph response
to EPA's statement of work or workplan
and draft administrative order on
consent:
• A detailed statement of work or
workplan identifying how the PRPs plan
to proceed with the work:
* A demonstration of the PRPs
technical capability to undertake the Rl/
FS. This should-include a requirement
that PRPs identify the firm they expect
will conduct the work or that PRPs
identify the process they will undertake
to select a firm:
• A demonstration of the PRPs
financial capability to finance the RI/FS:
• A statement of the PRPs willingness
to reimburse EPA for the costs EPA
incurs :r. overseeir.B :rie PRP conduct o(
the Ri/FS as required by section
I04{a)(l): and
• The name, address, and phone
number of the parry or steering1
committee who will represent the PRPs
in negotiation*.
g. "Good faith offer' for RD/RA:The
letter should indicate tfcet a "good faith
offer" if a written proposal which
demonstrates the PRP* qualifications
and willingness to conduct or finance
the RD/RA. A "good faith offer" for the
RD/RA should include the following:
• A statement of the PRPs wilKngnesa
to conduct or finance the RD/RA which
is generally consistent with EPA's •
proposed plan or which provides a
sufficient basis for further negotiations
in light of EPA's proposed plan:
* A paragraph-by-paragraph response
to EPA's draft consent decree, including
a response to other documents that may
have been ai.-ched to the decree such
as a technical scope of work for the
proposed plan or access or
preauihorization agreements:
• A detailed "statement of work" or
"workplan" identifying how PRPs plaa
to proceed with the work:
• A demonstration of the PRPs
technical capability to undertake the
RD/RA. This should include a
requirement that PRPs identify the firm
they expect will conduct the work or
that PRPs identify the process they will
undertake to select a firm:
• A derr.cnstration of the PRPa
capability to finance the RD/RA:
• A statement of ihe PRPs willingness
to reimburse EPA for past response and
oversight costs:
• A discussion about the PRTs
position on releases from liability and
reopeners to liability, and
• The name, address: and phone
number of the party or steering
committee who will represent the PRPs
in negotiations.
b. Information releaser'Io the extent
such information is available and to the
extent such information has not been
previously released the letter should
contain information on the names and
addresses of other PRPs. the volume and
nature of substances contributed by
each PRP. and a ranking by volume of
the substances at the facility. Note that
the release of information with the Rl/
FSand RD/RA special notices is not
intended to require the release of
information previously provided to
PRPs.
I. Detncxd for payment: The letter
should include a demand that PRPs
reimburse EPA for the costs the Agency
has incurred in conducting response
actmb.es at the site pursuant to section
107|a) T^e letter should identify ^.f
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Federal Register / Vol. 53. No. 35 / Tuesday. February 23. 1888 / Notices
action EPA undertook and the coot of
conducting the action. The letter should
eloo indicate that the Agency
anticipates expending additional funds
on oaivitieo covered by this notice and
other opecified future activities. Finally.
tha letter should demand payment of
interest for pool and future response
cooto incurred by EPA pursuant to
section 107(a). Notice letters should not
be delayed to obtain cost information
where such information hao not been
previoualy collected.
j. Administrative record: The letter
ohould be used as a vehicle for
informing PRPs of the availability of an
administrative record containing
documents that form the basis for the
Agency'a-decision on the selection of
remedy. The letter should indicate that
the record is open to the public for
inspection and comment. The letter
should also indicate where the record
will be or has been located.
k. PUP response and EPA contact
person: The letter should encourage
PRPs to notify EPA of their interest to
participate in negotiations. The letter
should indicate that PRPs may respond
as a group through a steering committee
if a commitice has been formed. In
addition, the letter should provide the
name, phone number, and address of the
EPA representative to contact.
D. Conclusion of Negotiation
Moratorium and Deadline Management
for RI/FS and RD/RA
At the conclusion of the section l—[e)
negotiation moratorium, the Regions
should have a fully negotiated
administrative order on consent for the
RI/FS and a fully negotiated consent
decree fur the RD/RA which has been
signed by the PRPs. A signed document
is necessary to show that an agreement
has. in fact, been reached.0
At the conclusion of the 120 day
moratorium for the RD/RA a
determination must be mode on whether
to continue settlement activities.
whether the site should be cleaned up
uoing Superfund money. Of whether to
initiate a section 103 enforcement
action. A continuation of settlement
activities may include seeking an
extension to the 120 day negotiation
moratorium as discussed below, or
sending a consent decree to the
Department of lustice for lotting in the
appropriate district court.
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