i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON, D.C. 20460
7 1989
Si
OSWER Directive #9835.2A
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Revisions to the Interim Guidance on PRP Participation
in Remedial nvestigations and Feasibility Studies
FROM: J. Winstorf Porter
Assistant Administrator
TO: Regional Administrators, Regions I-X
Attached please find a copy of the revised "Interim Guidance
on PRP Participation in Remedial Investigations and Feasibility
Studies" (OSWER Directive number 9835.la). I have approved the
modifications to this memorandum. This version is now identical
to that which appears as "Appendix A" in the October RI/FS
guidance (OSWER Directive number 9355.3-01).
Attachment
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V UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
3 WASHINGTON, D.C. 20460
JAN 26 1989
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Revisions to the Interim Guidance on PRP Participation
in Remedial Investigations and Feasibility Studies
L^*!^^
FROM: Bruce M. Diamond, Directoi
Office of Waste Programs Enforcement
TO: J. Winston Porter
Assistant Administrator
Attached please find a copy of the revised "Interim Guidance
on PRP Participation in Remedial Investigations and Feasibility
Studies" (OSWER Directive number 9835.la). The interim guidance
was originally signed by you in May of 1988.
In June and August of 1988, my office received memoranda
from the Department of Justice pointing out that PRP attorneys
had seized upon certain words in the May 1988 PRP participation
guidance and turned them against us. Also, following issuance of
the PRP participation guidance, in October of 1988 you approved a
revised RI/FS guidance developed by OERR. Consequently, the May
1988 PRP participation guidance has been revised to conform to
the October 1988 RI/FS guidance and correct inconsistencies
identified by the Department of Justice.
The revisions which were made to the "Interim Guidance on
PRP Participation in Remedial Investigations and Feasibility
Studies" (OSWER Directive number 9835.la) did not affect the
policy aspects of the guidance. They incorporated additional
comments which were supplied to our office by various parties,
including the Department of Justice, after the guidance had been
signed and distributed. The revisions were also agreed upon by
the Office of Emergency and Remedial Response. The revisions are
summarized below.
1. The May 1988 PRP participation guidance (Directive number
9835.la) references an outdated draft of the RI/FS guidance
(9355.3-01). Changes were made to reference the October
1988 RI/FS guidance.
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2. The May 1988 PRP participation guidance was revised so that
work plan deliverables parallel the RI/FS guidance more
closely. The model RI/FS Statement of Work (SOW) which is
currently under development will provide additional
specificity on the individual deliverables that are
appropriate for a PRP RI/FS.
3 . The May 1988 PRP participation guidance stated that
"consultants that are PRPs at the site may not conduct or
assist in the conduct of the RI/FS." This statement was
unclear and therefore removed.
4. Throughout the May 1988 PRP participation guidance, it was
implied that prior to signing an Administrative Order, PRPs
should demonstrate their qualifications and willingness to
perform an RI/FS through submission to EPA of a SOW or work
plan. The guidance was revised to clarify that such a step
may follow the Administrative Order.
5 . The May 1988 PRP participation guidance implied that
indirect oversight costs are always paid by PRPs. New
wording was provided to allow more flexibility and provide
consistency with the settlement incentives/disincentives
concept.
6. The May 1988 PRP participation guidance was revised to
remove statements which bound EPA to reviewing and approving
all work plans and/or modifications to work plans "as soon
as they are developed and submitted for review."
7. The May 1988 PRP participation guidance was revised to
remove references to any type of an "oversight management
plan" since such a document is not really necessary.
8. The May 1988 PRP participation guidance was revised to
clarify a footnote which implied that EPA may provide
oversight of state oversight activities.
9. Additional grammatical and word choice changes were also
made to the May 1988 PRP participation guidance. These
changes provided no alterations to the policy set forth in
the guidance.
To inform the Regions of the revisions that have been made
to the May 1988 PRP participation guidance, a copy of the revised
guidance will be sent to them. I have attached a transmittal
memorandum for your signature. For further information
concerning these minor revisions, please contact Carrie Capuco
(FTS 382-7739) of my staff.
Attachment
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Appendix A
INTERIM GUIDANCE ON PRP PARTICIPATION
IN THE RI/FS PROCESS
•378/040/i
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Appendix A
INTERIM GUIDANCE ON PRP PARTICIPATION
IN THE RI/FS PROCESS*
I. INTRODUCTION
This memorandum sets forth the policy and procedures governing the
participation of potentially responsible parties (PRPs) in the develop-
ment of remedial investigations (RI) and feasibility studies (FS) under
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), as amended by the Superfund Amendments and Reauthorization
Act (SARA) of 1986. This memorandum discusses:
o The initiation of enforcement activities including PRP search-
es and PRP notification;
o The circumstances in which PRPs may conduct the RI/FS;
o The development of enforceable agreements governing PRP RI/FS
activities;
o Initiation of PRP RI/FS activities and oversight of the RI/FS
by EPA;
o EPA control over PRP RI/FS activities; and
o PRP participation in Agency-financed RI/FS activities.
More detailed information regarding each of the above topics is
included in Attachments 1-4 of this appendix.
This document is consistent with €ERCLA and EPA guidance in effect
as of October 1988, and is intended to supersede the March 20, 1984 mem-
orandum from Assistant Administrators Lee M. Thomas and Courtney M. Price
entitled "Participation of Potentially Responsible Parties in Develop-
ment of Remedial Investigations and Feasibility Studies Under CERCLA"
(OSWER Directive No. 9835.1). Users of this guidance should consult the
RI/FS Guidance or any relevant guidance or policies issued after dis-
tribution of this document before establishing EPA/PRP responsibilities
for conducting RI/FS activities. Additional guidance regarding proce-
dures for EPA oversight activities will be available in the Office of
Waste Program Enforcement's (OWPE) forthcoming "Guidance Manual on
•This memorandum was signed by the AA OSWER and released for distribution
on May 16, 1988. Technical clarifications/updates have been made to
this guidance for insertion into Appendix A of the "Interim Final
Guidance for Conducting Remedial Investigations and Feasibility Studies"
(October 1988-OSWER Directive No. 9355.3-01) (Referred to herein as the
RI/FS Guidance).
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Oversight of Potentially Responsible Party Remedial Investigation and
Feasibility Studies".
II. BACKGROUND
Sections 104/122 of CERCLA provide PRPs with the opportunity to
conduct the RI/FS when EPA determines (1) that the PRPs are qualified to
conduct such activities and (2) they will carry out the activities in
accordance with CERCLA requirements and EPA procedures. The Agency will
continue its policy of early and timely PRP searches as well as early
PRP notification and negotiation for RI/FS activities.
It is also the policy of EPA to encourage the early and active par-
ticipation of PRPs in conducting RI/FS activities. EPA believes that
early participation of PRPs in the remedial process will encourage PRP
implementation of the selected remedy. PRP participation in RI/FS activ-
ities will ensure that they have a better and more complete understand-
ing of the selected remedy, and thus will be more likely to agree on
implementation of the remedy. Remedial activities performed by PRPs
will also conserve Fund monies, thus making additional resources avail-
able to address other sites.
As part of the Agency's effort to encourage PRP participation in
remedial activities, EPA will consider the PRPs1 role in conducting RI/FS
activities when assessing an overall settlement proposal for the remedial
design and remedial action. For example, when the Agency performs a
non-binding allocation of responsibility (NEAR), the Agency may consider
previous PRP efforts and cooperation. This will provide an additional
incentive for PRPs to be cooperative in conducting RI/FS activities.
Although EPA encourages PRP participation in conducting the RI/FS,
the Agency and CERCLA impose certain conditions governing their partici-
pation. These conditions are intended"to assure that the RI/FS per-
formed by the PRPs is consistent with Federal requirements and that
there is adequate oversight of those activities. These conditions are
discussed both in Section III and Attachment I of this memorandum.
At the discretion of EPA, a PRP (or group of PRPs) may assume
full responsibility for undertaking RI/FS activities pursuant to
Sections 104/122 of CERCLA. The terms and conditions governing the
RI/FS activities should be specified in an Administrative Order. The
use of Administrative Orders is authorized in CERCLA Section 122(d) (3) ;
they ar« the preferred type of agreement for RI/FS activities since they
are authorized internally and therefore, may be negotiated more quickly
The legal authority to enter into agreements with PRPs is found in CERCLA
Section 122(a). This section then refers to response actions conducted
pursuant to Section 104(b). For the purposes of this guidance, Sec-
tions 104/122 will be cited when referring to such authority.
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than Consent Decrees. Before SARA, Administrative Orders were signed
using the authorities of Section 106 of CERCLA. New provisions in SARA
allow for Orders to be signed using the authorities of Sections 104/122;
Section 104/122 Orders do not require EPA to make a finding of imminent
and substantial endangennent.
RI/FS activities developed subsequent to the Administrative Order
are set forth in a Statement of Work/ which is then embodied or
incorporated by reference into the Order. A Work Plan describing
detailed procedures and criteria by which the Rl/FS will be performed is
developed by the PRPs and, after approval by EPA, should also be
incorporated by reference into the Administrative Order.
It is the responsibility of the lead agency to ensure the quality
of the effort if the PRPs assume responsibility for conducting the RI/FS.
Therefore, EPA will establish oversight procedures and project controls
to ensure that the response actions are consistent with CERCLA and the
National Contingency Plan (NCP). Section 104(a)(1) of CERCLA mandates
that no PRP be allowed to undertake an RI/FS unless EPA determines that
the party(ies) conducting the RI/FS is qualified to do so. In addition,
Section 104(a)(1) requires that a qualified party be contracted with or
arranged for to assist in overseeing and reviewing the conduct of the
RI/FS and, that the PRPs agree to reimburse EPA for the costs associated
with the oversight contract or arrangement.
III. INITIATION OF ENFORCEMENT ACTIVITIES
As part of effective management of enforcement activities, timely
settlements for RI/FS activities are to be pursued. This includes conduc-
ting PRP searches early in the site discovery process and subsequent
notification to all PRPs of their potential liability and of their oppor-
tunity to perform response activities. Guidance on conducting timely
and effective PRP searches is contained in the guidance manual, "Poten-
tially Responsible Party Search Manual" (August 17, 1987 - OSWER Direc-
tive No. 9834.6).
EPA policy has been to notify PRPs of their potential liability for
the planned response activities, to exchange information about the site,
and to provide PRPs with an opportunity to undertake or finance the
response activities themselves. In the past this has been accomplished
by issuing a "general notice" letter to the PRPs. In addition to the
use ot th* general notice letter, Section 122(e) of CERCLA now authorizes
EPA to UM "special notice" procedures, which for an RI/FS, establish a
60 to 90 day moratorium and formal negotiation period. The purpose of
the moratorium is to provide time for formal negotiation between EPA and
the PRPs for conduct of RI/FS activities. In particular, use of the
special notice procedures triggers a 60 day moratorium on EPA conduct of
the RI/FS. During the 60 day moratorium, if the PRPs provide EPA with a
"good faith offer" to conduct or finance the RI/FS, the negotiation period
can be extended to a total of 90 days. EPA considers a good faith offer
to be a written proposal where the PRPs make a showing of their qualifi-
cations and willingness to conduct or finance the RI/FS. Minor deficien-
cies in the PRPs1 initial submittals should not be grounds for a
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determination that the offer is not a good faith offer or that the PRPs
are unable to perform the RI/FS. .
To facilitate, among other things, PRP participation in the RI/FS
process, Section 122(e)(1) requires the special notice letter to provide
the names and addresses of other PRPs, the volume and nature of sub-
stances contributed by each PRP, and a ranking by volume of substances
at the site, to the extent this information is available at the time of
special notice. Regions are encouraged to release this information to
PRPs when the notice letters are issued. To expedite settlements,
Regions are also encouraged to give PRPs as much guidance as possible
concerning the RI/FS process. It is appropriate to transmit to PRPs
copies of important guidance documents such as the RI/FS Guidance, as
well as model Administrative Orders and Statements of Work. A model
Administrative Order can be found in the memorandum from Gene Lucero
entitled, "Model CERCLA Section 106 Consent Order for an RI/FS"
(January 31, 1985 - OSWER Directive No. 9835.5). This model order is
currently being revised to reflect SARA requirements and will be forth-
coming. A model Statement of Work has been included as Appendix C to
the RI/FS Guidance, while a model Statement of Work for PRP-lead RI/FSs
is currently being developed by OWPE. Other Regional and Headquarters
guidance relating to technical issues may be given to PRPs, as well as~
examples of project plans (plans that must be developed prior to the
conduct of the RI/FS) that are of high quality. A description of the
required project plans is included in Attachment II.
Although use of the special notice procedures is discretionary,
Regions are encouraged to use these procedures in the majority of cases.
If EPA decides not to employ the special notice procedures described in
Section 122(e), the Agency will notify the PRPs in writing of such a
decision, including an explanation as to why EPA believes the use of the
special notice procedures is inappropriate. Additional information on
the content of special notice letters, including the use of these notice
provisions, can be found in the memorandum entitled "Interim Guidance on
Notice Letters, Negotiations, and Information Exchange" (October 19,
1987 - OSWER Directive No. 9834.10).
Section 121(f)(l) requires that the State be notified of PRP nego-
tiations and that an opportunity for State participation in such negotia-
tions be provided. In addition, Section 122(j)(l) requires that if a
release or threat of release at the site in question may have resulted
in damages to natural resources, EPA must notify the appropriate Federal
or State Trustee and provide an opportunity for the Trustee to partici-
pate in the negotiations. To simplify the notification of Federal
Trustees, the Agency "intends to provide a list of projects in the Super-
fund Comprehensive Accomplishments Plan (SCAP) to the Trustees as notice
to participate in the negotiations. In those cases where there is reason
to believe that a significant natural resource will be affected, direct
coordination with the Federal and/or State Trustee will be required.
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IV. CONDITIONS FOR EPA INVOLVEMENT IN, AND PRP INITIATION OF, RI/FS
ACTIVITIES
Under Section 104(a)(1) EPA may authorize PRPs to conduct RI/FS
activities at any site, provided the PRPs can do so promptly and
properly and can meet the conditions specified by EPA for conducting the
RI/FS. These conditions are discussed in Attachment I of this appendix
and involve the scope of activities, the organization of the PRPs, and
the PRPs' (and their contractors') demonstrated expertise. EPA encour-
ages PRPs to conduct the RI/FS provided that the PRPs commit in an Order
(or Consent Decree) under CERCLA Sections 104/122 (or Sections 106/122
for a Decree) to conduct a complete RI/FS to the satisfaction of EPA,
under EPA oversight. Oversight of RI/FS activities by the lead agency
is required by Section 104(a)(1) and is intended to assure that the
RI/FS is adequate for lead agency identification of an appropriate
remedy, and that it will otherwise meet the Agency requirements of
CERCLA, the NCP, and relevant Agency guidance. EPA will allow PRPs to
conduct RI/FS activities and will provide review and oversight under the
following general circumstances.
EPA's priority is to address those NPL sites that have been identi-
fied on the SCAP. The SCAP is an EPA management plan which identifies
site- and activity-specific Superfund financial allocations for each
quarter of the current fiscal year. When employing Section 122(e) notice
procedures, EPA will notify PRPs of its intention to conduct RI/FS activ-
ities at NPL sites in a manner that allows at least 90 days notice before
obligating the funds necessary to complete the RI/FS (see Section III of
this guidance). During this time frame PRPs may elect to conduct the
RI/FS, under the review and oversight of EPA. If the PRPs agree to con-
duct the RI/FS they must meet the conditions discussed in Attachment I.
The scope and terms for conducting the studies are embodied in an Agree-
ment; as mentioned in Section II, Administrative Orders are the preferred
type of Agreement for RI/FS activities;
EP7. will not engage in lengthy discussions with PRPs over whether
the PRPs will conduct the RI/FS> rather, EPA will adhere to the time
frames 'established by the Section 122 special notice provisions. In
most instances, once Fund resources have been obligated to conduct the
RI/FS, the PRPs will no longer be eligible to conduct the RI/FS activi-
ties at the site.
Th« actions described below are typically taken to initiate RI/FS
activities:
o EPA develops a site-specific Statement of Work (SOW) in advance
of the scheduled RI/FS start. This SOW is then provided to
the PRPs along with a draft of the Administrative Order (or
For a State-lead enforcement site the State is responsible for over-
sight unless otherwise specified in the agreement between the State and
EPA. EPA should maintain communication with the State to ensure that
the State is providing oversight of the remedial activities.
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Consent Decree) at the initiation of negotiations. (PRPs may,
with EPA approval, submit a single site plan that incorporates
the elements of an SOW and a detailed Work Plan as a first
deliverable once the Agreement has been signed. This combined
site plan must clearly set forth the scope of the proposed
RI/FS and would be incorporated into the Agreement in place of
the SOW.)
o Final provisions of the SOW are negotiated with the Order.
o EPA determines whether the PRPs possess the necessary capabili-
ties to conduct an Rl/FS in a timely and effective manner (con-
ducted simultaneously with other negotiations).
o EPA develops a Community Relations Plan specifying any activi-
ties that may be required of the PRPs. (Community relations
activities are discussed in Attachment II.)
o EPA determines contractor and staff resources required for
oversight and initiates planning the necessary oversight
requirements. This process may include preparing a Statement
of Work, if a contractor is to develop an "oversight plan."
o EPA and PRPs identify and procure any necessary assistance.
o PRPs submit a Work Plan to EPA for Agency review and approval.
The Work Plan must present the methodology and rationale for
conducting the RI/FS as well as detailed procedures and require-
ments, if such procedures have not been set forth in the Agree-
ment. This Work Plan, which in most instances is one of the
first deliverables under the Order, is commonly incorporated
into the Agreement following EPA approval.
o PRPs are-responsible for obtaining access to the site; however,
if access cannot be obtained, EPA, with the assistance of DOJ,
will secure access subject to PR? reimbursement for the costs
incurred in securing such access.
These standardized actions ensure that the scope of the RI/FS activ-
ities to be conducted by the PRPs, and the procedures by which the RI/FS
is performed, are consistent with EPA policy and guidance. Additional
actions nay be required either for a technically complex site or for a
sit* where a number of PRPs are involved. Regardless of the circum-
stances, the actions listed in this section should be negotiated as
expeditiously as possible. Specific elements of these actions are dis-
cussed in Attachment II.
V. DEVELOPMENT OF THE RI/FS ADMINISTRATIVE ORDER OR CONSENT DECREE
The PRPs must respond to EPA's notice letter by either declining,
within the time specified, to participate in the RI/FS, or by offering a
good faith proposal to EPA for performing the RI/FS. Declining to par-
ticipate in the RI/FS may be implied if the PRPs do not negotiate during
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the moratorium established by the notice letter, if the PRPs have
declined to participate, or the time specified has lapsed, EPA will
obligate funds for performing the RI/FS. If a good faith proposal is
submitted, EPA will negotiate with the PRPs on the scope and terms for
conducting the RI/FS.
The results of successful negotiations will, in most cases, be con-
tained in an Administrative Order, or where the site is in litigation,
in a Judicial Consent Decree entered into pursuant to Section 122(d) oŁ
CERCLA. Guidance for the development of an Administrative Order is pro-
vided in OWPE's document "Administrative Order: Workshop and Guidance
Materials" (September 1984), and in the memorandum from Gene Lucero
entitled "Model CERCLA Section 106 Consent Order for an RI/FS" (Janu-
ary 31, 1985). (The latter guidance is currently being revised since
the provisions in SARA allow for Orders to be signed using the authori-
ties of Sections 104/122.)
An Administrative Order (or Consent Decree) will generally contain
the scope of activities to be performed (either as a Statement of Work
or Work Plan), the oversight roles and responsibilities, and enforcement
options that may be exercised in the event of noncompliance (such as
stipulated penalties). In addition to the above, the Agreement will"
typically include the following elements, as agreed upon by EPA, the
PRPs, and other signatories to the Agreement.
o Jurisdiction - Describes EPA's authority to enter into Admin-
istrative Orders or Consent Decrees.
o Parties bound - Describes to whom the Agreement applies and is
binding upon.
o Purpose - Describes the purpose of the Agreement in terms of
mutual objectives and public benefit.
o Findings of fact, determination, and conclusions of law - Pro-
vides an outline of facts upon which the Agreement is based,
including the fact that PRPs are not subject to a lesser stan-
dard of liability and will not receive preferential treatment
from the Agency in conducting the RI/FS.
o Notice to the State - Verifies that the State has been notified
of pending site activities.
o Work to be performed - Provides that PRPs submit project plans
to the lead-agency for review and approval before commencing
RI/FS activities. Project plans are those plans developed in
order to effectively conduct the RI/FS project and include: a
Work Plan, describing the methodology, rationale, and schedule
of all tasks to be performed during the RI/FS; a Sampling and
Analysis Plan, describing the field sampling procedures to be
performed as well as the quality assurance procedures which
will be followed for sampling and analysis (including a
description of how the data gathered during the RI/FS will be
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managed) and the analytical procedures to be employed; and a
Health and Safety Plan describing health and safety precautions
to be exercised while onsite. (More information on the
contents of these project plans can be found in Attachment II
of this appendix.)
Compliance with CERCLA, the NCP, and Relevant Agency Guidance -
Specifies that the actions at a site will comply with the
requirements of CERCLA, the NCP, and relevant Agency guidance
determined to be appropriate for site remediation.
Reimbursement of costs - Specifies that PRPs will assume all
costs of performing the work required by the Agreement. In
addition, this section commits PRPs to reimbursement of costs
associated with oversight activities. This includes reimburse-
ment for qualified party assistance in oversight, as required
by Section 104(a)(1). This section should also specify the
nature and kind of cost documentation to be provided and the
process for billing and receiving payment.
Reporting - Specifies the type and frequency of reporting that
PRPs must provide to EPA. Normally the reporting requirements
will, at a minimum, include the required project plans as well
as those deliverables required by the RI/FS Guidance.
Additional reporting requirements are left to the discretion
of the Regions. That is. Regions may require additional
deliverables such as interim reports on particular RI or FS
activities.
Designated EPA, State, and PRP project coordinators - Specifies
that EPA, the State, and PRPs shall each designate a project
coordinator.
Site access and data availability - Stipulates that PRPs shall
allow access to the site by EPA, the State, and oversight per-
sonnel. Access will be provided for inspection and monitoring
purposes that in any way pertain to the work undertaken
pursuant to the Order. In addition, access will be provided
in the event of project takeover. This section also stipu-
lates that EPA will be provided with all currently available
data.
Record preservation - Specifies that all records must be main-
tained by both parties for a minimum of 6 years after termina-
tion of the Agreement, followed by a provision requiring PRPs
to offer the site records to EPA before destruction.
Administrative record requirements - Provides that all infor-
mation upon which the selection of remedy is based must be
submitted to EPA in fulfillment of the administrative record
requirements pursuant to Section 113 of CERCLA. (Additional
information on administrative record requirements is contained
in Attachment III.)
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Dispute resolution - Specifies steps to be taken if a dispute
occurs. The Administrative Order states that with respect to
all submittals and work performed, EPA will be the final arbi-
ter, while the court is the final arbiter for a Consent Decree.
(More information on dispute resolution can be found in Attach-
ment IV of this appendix.)
Delay in performance/stipulated penalties - Specifies EPA's
authority to invoke stipulated penalties for noncompliance
with Order or Decree provisions. Section 121 of CERCLA
requires that Consent Decrees contain provisions for penalties
in an amount not to exceed $25,000 per day. In addition to
stipulated penalties, Section 122(1) provides that Section 109
civil penalties apply for violations of Administrative Orders
and Consent Decrees. Delays that endanger public health and/or
the environment may result In termination of the Agreement and
EPA takeover of the RI/FS. (More information on stipulated
penalties can be found in the Office of Enforcement and Com-
pliance Monitoring's (OECM) "Guidance on the Use of Stipulated
Penalties in Hazardous Waste Consent Decrees" (September 21,
1987) and in Attachment IV of this appendix.)
Financial assurance - Specifies that PRPs should have adequate
financial resources or insurance coverage to address liabili-
ties resulting from their RI/FS activities. When using con-
tractors, PRPs should certify that the contractors have
adequate insurance coverage or that contractor liabilities are
indemnified.
Reservation of rights - States that PRPs are not released from
all CERCLA liability through compliance with the Agreement, or
completion of the RI/FS. PRPs may be released from liability
relating directly to RI/FS'requirements, if PRPs complete the
RI/FS activities to the satisfaction of EPA.
Other claims - Provides that nothing in the Agreement shall
constitute a release from any claim or liability other than,
perhaps, for the cost of the RI/FS, if completed to EPA satis-
faction. Also provides that nothing in the Agreement shall
constitute preauthorization of a claim against the Fund under
CERCLA. This section should also specify the conditions for
indemnification of the U.S. Government.
Subsequent modifications/additional work - Specifies that the
PRPs are committed to perform any additional work or subse-
quent modifications which are not explicitly stated in the
Work Plan, if EPA determines that such work is needed to
enable the selection of an appropriate response action.
(Attachment IV contains additional information on this
clause.)
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VI. STATEMENT OF WORK AND WORK PLAN
Based upon available models and guidance, the Region should present
to the PRPs at the initiation of negotiations a Statement of Work (SOW)
and draft Administrative Order. The SOW describes the broad objectives
and general activities to be undertaken in the RI/FS. (The PRPs may
develop the SOW if it is determined to be appropriate for a particular
case.) Once the PRPs receive the SOW they develop a more detailed Work
Plan, which should be incorporated by reference into the Order following
EPA approval. The Work Plan expands the tasks described in the SOW and
presents the rational and methodology (including detailed procedures and
schedules) for conducting the RI/FS. It should be noted that EPA, rather
than the PRPs, may develop the work plan in the event of unusual circum-
stances .
VII. REVIEW AND OVERSIGHT OF THE RI/FS
To ensure that the RI/FS conforms to the NCP and the requirements
of CERCLA, including Sections 104(a)(l) and 121, EPA will review and
oversee PRP activities. Oversight is also required to ensure that the
RI/FS will result in sufficient information to allow for remedy selec-
tion by the lead agency.
The oversight activities that EPA, the State, and other oversight
personnel will be performing should be determined prior to the initia-
tion of the RI/FS. Different mechanisms will be used for the review and
oversight of different PRP products and activities. These mechanisms,
and corresponding PRP activities, should be determined and if possible
incorporated in the Order. Generally, the following oversight activi-
ties should be specified:
o Review of plans, reports, and records;
o Oversight of field activities (including maintenance of records
and documentation);
c Meetings; and
o Special studies.
Section 104(a)(1) requires that the President contract with or
arrange for a "qualified person" to assist in the oversight and review
of the conduct of the RI/FS. EPA believes that qualified persons, for
the purposes of overseeing RI/FS activities, are those firms or individ-
uals with the professional qualifications, expertise, and experience
necessary to provide assurance that the Agency is conducting meaningful
and effective oversight of PRP activities. In this context, the quali-
fied person generally will be either an ARCs, TES, or REM contractor.
EPA employees, employees of other Federal agencies, State employees, or
any other qualified person EPA determines to be appropriate however, may
be asked to perform the necessary oversight functions.
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As part of the Section 104 requirements, PRPs are required to reim-
burse EPA for qualified party oversight costs. It is Agency policy
to recover all response costs at a site including all costs associated
with oversight. Additional guidance on oversight and project control
activities i"S presented in Attachments III and IV, respectively.
VIII. CONTROL OF ACTIVITIES
EPA will usually not intervene in a PRP RI/FS if activities are
conducted in conformance with the conditions and terms specified by the
Order. When deficiencies are detected, EPA will take immediate steps to
correct the PRP activities. Deficiencies will be corrected through the
use of the following activities: (U identification of the deficiency;
(2) demand for corrective measures; (3) use of dispute resolution mecha-
nisms, where appropriate; (4) imposition of penalties; and if necessary,
(5) PRP RI/FS termination and project takeover or judicial enforcement.
These activities are described in detail in Attachment IV of this appen-
dix.
IX. PRP PARTICIPATION IN AGENCY-FINANCED RI/FS ACTIVITIES
PRPs that elect not to perform the RI/FS should be allowed an oppor-
tunity for involvement in a Fund-financed RI/FS. Private parties may
possess technical expertise or knowledge about a site which would be
useful in developing a sound RI/FS. Involvement by PRPs in the develop-
ment of a Fund-financed RI/FS may also expedite remediation by identify-
ing and satisfactorily resolving differences between the Agency and
private parties.
Section 113(k) (2)(B) requires that interested persons, including
PRPs, be provided an opportunity for participation in the development of
the administrative record. PRP participation may include the submittal
of information, relevant to the selection of remedy, for inclusion in
the record and/or the review of record contents and submittal of com-
ments on such contents.
The extent of additional PRP involvement will be left to the discre-
tion of the Region and may include activities such as:
o Access to the site to observe sampling and analysis activities;
o Access to validated data and draft reports.
with respect to PRP access to a site, it is within the Regions'
discretion to impose conditions based on safety and other relevant
considerations. To the extent that the Region determines that access is
appropriate under the circumstances, PRPs must reimburse EPA for all
identifiable costs incurred with the connection of the accesses afforded
the PRPs, and must execute appropriate releases in favor of the EPA and
its contractors. With respect to providing data, it should be noted
that the Region is required to allow private citizens access to the same
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information that is provided to the PRPs. The Regions must therefore
take this into consideration when determining the extent of the PRP ' s
involvement in a Fund-financed RI/FS.
Aside from participation in the administrative record, which is a
statutory requirement, the final decision whether to permit PRPs to par-
ticipate in other aspects of the Fund-financed RI/FS (as well as the
scope of any participation) rests with the Regions. This decision should
be based on the ability of PRPs to organize themselves so that they can
participate as a single entity, and the ability of PRPs to participate
without undue interference with or delay in completion of the RI/FS, and
other factors that the Regions determine are relevant. The Region may
terminate PRP participation in RI/FS development if unnecessary expenses
or delays occur.
X. CONTACT
For further information on the subject matter discussed in this
interim guidance, please contact Susan Cange (FTS 475-9805) of the
Guidance and Oversight Branch, Office of Waste Program Enforcement.
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ATTACHMENT I
CONDITIONS FOR PRP CONDUCT OF THE RI/FS
Organization and Management
When several potentially responsible parties are involved at a site
they must be able to organize themselves quickly into a single represen-
tative body to negotiate with EPA. To facilitate this negotiation pro-
cess, EPA will make available the names and addresses of other PRPs, in
accordance with the settlement provisions of CERCLA Section 122(e).
Either a single PRP or an organized group of PRPs may assume responsi-
bility for development of the RI/FS.
Scope of Activities
As part of the negotiation process PRPs must agree to follow the
site-specific Statement of Work (SOW) as the basis for conducting an
RI/FS. PRPs are required to submit an RI/FS Work Plan setting forth
detailed procedures and tasks necessary to accomplish the RI/FS activ-
ities described in the SOW. EPA may approve reasonable modifications to
the SOW and will reject any requests for modifications that are not
consistent with CERCLA (as amended by SARA), the NCP, the requirements
set forth in this guidance document, the RI/FS Guidance, or other
relevant CERCLA guidance documents.
Demonstrated Capabilities
PRPs must demonstrate to EPA that they possess, or are able to
obtain, the technical expertise necessary to perform all relevant activi-
ties identified in the SOW, and any amendments that may be reasonably
anticipated to that documenti In addition, PRPs must demonstrate that
they possess the managerial expertise and have developed a management
plan sufficient to ensure that the proposed activities will be properly
controlled and efficiently implemented. PRPs must also demonstrate that
they possess the financial capability to conduct and complete the RI/FS
in a timely and effective manner. These capabilities are discussed
briefly below.
o Demonstrated Technical Capability
PRPs should be required to demonstrate the technical capabilities
of key personnel involved in executing the project. Personnel qualifi-
cations may be demonstrated by submitting resumes and references. PRPs
may demonstrate the capabilities of the firm that will perform the work
by outlining their past areas of business, relevant projects and experi-
ence, and overall familiarity with the types of activities to be per-
formed as part of the remedial investigation and feasibility study.
It is important that qualified firms be retained for performing
RI/FS activities. Firms that do not have the necessary expertise for
performing RI/FS studies may create unnecessary delays in the project
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and may create situations which further endanger public health or the
environment. These situations may be created when PRP contractors sub-
mit insufficient project plans, submit deficient reports, or perform
inadequate field work. Furthermore, excessive Agency oversight may be
required in"the event that an unqualified contractor performs the RI/FS;
the Agency may have to significantly increase its workload by providing
repeated reviews of project plans, reports, and oversight of field
activities.
The PRPs must also demonstrate the technical capabilities of the
laboratory chosen to do the analysis of samples collected during the
RI/FS. If a non-CLP laboratory is selected, EPA may require a submission
from the laboratory which provides a comprehensive statement of the labo-
ratories' personnel qualifications, equipment specifications, security
measures, and any other material necessary to prove the laboratory is
qualified to conduct the work.
o Demonstrated Management Capability
PRPs must demonstrate that they have the administrative capabili-
ties necessary for conducting the RI/FS in a responsible and timely
manner. A management plan should be submitted to EPA either during nego-
tiations or as a part of the Work Plan which includes a discussion of
roles and responsibilities of key personnel. This management plan
should include an RI/FS team organization chart describing responsibil-
ities and lines of authority. Positions and responsibilities should be
clearly related to technical,and managerial qualifications. The PRPs
should also demonstrate an understanding of effective communications,
information management, quality assurance, and quality control systems.
PRPs usually procure the services of consultants to conduct the required
RI/FS activities. The consultants must demonstrate, in addition to
those requirements stated above, effective contract management
capabilities.
o Demonstrated Financial Capability
The PRPs should develop a comprehensive and reasonable estimate of
the total cost of anticipated RI/FS activities. EPA will decide on a
case-by-case basis if the PRPs will be required to demonstrate that they
have the necessary financial resources available and committed to con-
duct the RI/FS activities. The resources estimated should be adequate
to cover the anticipated costs for the RI/FS as well as the costs for
oversight, plus a margin for unexpected expenses. If, during the con-
duct of the RI/FS the net worth of the financial mechanism providing
funding for the RI/FS is reduced to less than that required to complete
the remaining activities, the PRPs should immediately notify EPA. Under
conditions specified in the Order, PRPs are required to complete the
RI/FS regardless of initial cost estimates or financial mechanisms.
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o Assistance for PRP Activities
If PRPs propose to use consultants for conducting or assisting in
the RI/FS, the PRPs should specify the tasks to be conducted by the con-
sultants and"submit personnel and corporate qualifications of the pro-
posed firms to the EPA for review. Verification should be made that the
PRPs1 consultants have no conflict of interest with respect to the proj-
ect. Any consultants having current EPA assignments as prime contrac-
tors or as subcontractors must obtain approval from their EPA Contract
Officers before performing work for PRPs. Lack of clarification on pos-
sible conflicts of interest may delay the PRP RI/FS. EPA will reserve
the right to review the PRPs' proposed selection of consultants and will
disapprove their selection if, in EPA's opinion, they either do not pos-
sess adequate technical capabilities or there exists a conflict of
interest. It should be noted that the responsibility for selection of
consultants rests with the PRPs.
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ATTACHMENT II
INITIATION OF PP.P RI/FS ACTIVITIES
Development of the Statement of Work
After the PRPs have been identified in the PRP Search Report they
are sent either a general notice letter followed by a special notice
letter or a general notice letter followed by an explanation pursuant to
Section 122(a) why special notice procedures are not being used. EPA
will engage in negotiations with those PRPs who have submitted a good
faith offer in response to the notice letter and therefore have volun-
teered to perform the RI/FS. While the PRPs are demonstrating their
capabilities for conducting the RI/FS, EPA will negotiate the terms of
the Administrative Order. Either an acceptable Statement of Work or
Work Plan must be incorporated by reference into the Agreement.
The Statement of Work (SOW) is typically developed by EPA and
describes, in a comprehensive manner, all RI/FS activities to be per-
formed, as reasonably anticipated, prior to the onset of the project.
The SOW focuses on broad objectives and describes general activities
that will be undertaken to achieve these objectives. Detailed proce-
dures by which the work will be accomplished are not presented in the
SOW, but are described in the subsequent Work Plan that is developed by
the PRPs. In certain instances, with the approval of EPA, PRPs may pre-
pare a single site plan incorporating the elements of an SOW and a Work
Plan. In such instances, the site plan will be incorporated into the
Order in place of the broader SOW.
o Use of the EPA Model SOW
EPA has developed a model SOW defining a comprehensive RI/FS effort
which is contained in the RI/FS Guidance. Additionally, a model SOW for
a FRP-lead RI/FS is being developed by OWPE and will be forthcoming.
The Regions should develop a site-specific SOW based upon the model (s).
RI/FS projects managed by PRPs will involve, at a minimum, all relevant
activities set forth in the EPA model SOW. Further, all plans and
reports identified as deliverables in the EPA model SOW must be iden-
tified as deliverables in the site-specific SOW and/or the Work Plan
developed by the PRPs. Additional deliverables may be required by the
Regions and should be added to the Administrative Order.
o Modification of the EPA Draft SOW Requirements
The activities set forth in the model SOW are considered by EPA to
be the critical RI/FS activities that are required by the NCP. PRPs
should present detailed justifications for any proposed modifications
and amendments to the activities set forth in the SOW. EPA will review
all proposed modifications and approve or disapprove their inclusion in
the SOW based on available information, EPA policy and guidance, overall
program objectives, and the requirements of the NCP and CERCLA. EPA
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will not allow modifications that, in the judgment of the Agency, will
lead to an unsatisfactory RI/FS or inconsistencies with the NCP.
Review of the RI/FS Project Plans
RI/FS project plans include those plans developed for the RI/FS.
At a minimum the project plans should include a Work Plan, a Sampling
and Analysis Plan, a Health and Safety Plan, and a Community Relations
Plan. The Comnunity Relations Plan is developed by EPA and should
include a description of the PRPs1 role in community relations activi-
ties, if any. EPA review and approval of the work plan and sampling and
analysis plan will usually be required before PRPs can begin site activi-
ties. An example when limited project activities may be initiated prior
to approval of the project plans would be if additional information is
required to complete the Sampling and Analysis Plan. Additionally, con-
ditional approvals to the Work Plan and Sampling and Analysis Plan may
be provided in order to initiate field activities in a more timely
manner. It should be noted that EPA does not "approve" the PRPs' Health
and Safety Plan but rather, it is reviewed to ensure the protection of
public health and the environment. The PRPs may be required to amend
the plan if EPA determines that it does not adequately provide for such
protection.
o Contents of the Work Plan
The Work Plan expands the tasks of the SOW, and the responsibili-
ties specified in the Agreement, by presenting the rationale and method-
ology (including detailed procedures) for conducting the RI/FS.
Typically the Work Plan is developed after the draft Order and then
incorporated into the Agreement. In some cases however, it may be appro-
priate for EPA to develop the Work Plan prior to actual negotiation with
the PRPs and attach the plan to the draft Agreement. The PRF RI/FS Work
Plan must be consistent with current.EPA guidance. Guidance on develop-
ing acceptable Work Plans is available in the RI/FS Guidance. Addi-
tional guidance will be forthcoming in the proposed NCP. Once the Work
Plan is approved by EPA, it becomes a public document and by the terms
of the Agreement, should be incorporated by reference into that document.
The Work Plan should, at a minimum, contain the following elements.
Introduction/Background Statement - PRPs should provide an intro-
ductory or background statement describing their understanding of
the work to be performed at the site. This should include histor-
ical site information and should highlight present site conditions.
Objectives - A statement of what is to be accomplished and how the
information will be utilized.
Scope - A detailed description of the work to be performed
including a definition of work limits.
Management Plan - A description of the project management showing
personnel with authority and responsibility for the appropriate
aspects of the project and specific tasks to be performed. A
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single person should be identified as having overall responsibility
for the project and specific tasks to be performed.
Work Schedule - A statement outlining the schedule for each of the
required activities. This could be presented in the form of a
Gantt or milestone chart. The schedule in the work plan must match
that in the draft order.
Deliverables - A description of the work products that will be
submitted and their schedule for delivery. The schedule should
include specific dates, if possible. Overwise, the schedule
should be in terms of the number of days/week after approval
of the work plan.
o Contents of the Sampling and Analysis Plan.
A Sampling and Analysis Plan (SAP) must be submitted by the PRPs
before initiation of relevant field activities. This plan contains two
separate elements: a Field Sampling Plan and a Quality Assurance Project
Plan. These documents were previously submitted as separate deliverables,
but are now combined into one document. Though the SAP is typically
implemented by PRP contractors, it is the responsibility of the PRPs to
ensure that the goals and standards of the plan are met. (Verification
that the goal and standards of the SAP are met will also be part of EPA's
oversight responsibilities.) The SAP should contain the following ele-
ments :
Field Sampling Plan - The Field Sampling Plan includes a detailed
description of all RI/FS sampling and analytical activities that
will be performed. These activities should be consistent with the
NCP and relevant CERCLA guidance. Further guidance on developing
Field Sampling Plans is presented in the RI/FS Guidance.
Quality Assurance Project Plan - The SAP must include a detailed
description of quality assurance/quality control (QA/QC) procedures
to be employed during the RI/FS. This section is intended to ensure
that the RI/FS is based on the correct level or extent of sampling
and analysis required to produce sufficient data for evaluating
remedial alternatives for a specific site. A second objective is
to ensure the quality of the data collected during the RI/FS.
Guidance on appropriate QA/QC procedures may be found in the RI/FS
Guidance as well as "Data Quality Objectives for the RI/FS Process"
(March 1987 - OSWER Directive No. 9355.0-7B).
If the SAP modifies any procedures established in relevant guidance,
it oust provide an explanation and justification for the change.
o Other Project Plans
Other project plans that are likely to be required in the RI/FS
process include the Health and Safety Plan and the Community Relations
Plan.
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Health and Safety Plan - PRPs should include a Health and Safety
Plan either as part of the Work Plan or as a separate document.
The Health and Safety Plan should address the measures taken by the
PRPs to ensure that all activities will be conducted in an environ-
mentally safe manner for the workers and the surrounding community.
EPA reviews the Health and Safety Plan to ensure protection of
public health and the environment. EPA does not, however, "approve"
this plan. Guidance on the appropriate contents of a Health and
Safety Plan may be found in the RI/FS Guidance. In addition,
Health and Safety requirements are found in "OSHA Safety and Health
Standards: Hazardous Waste Operations and Emergency Response"
(40 CFR Part 1910.120) .
Community Relations Plan - EPA must prepare a Community Relations
Plan for each NPL site. The extent of PRP involvement in community
relations activities should be detailed in this plan. Additional
information on Community Relations activities is contained below.
o Review and Approval
PRPs must submit all of the required RI/FS project plans (with the
exception of the Community Relations Plan which is developed by EPA) to
EPA for review, and in the case of the Work Plan and SAP, approval. EPA
will review the plans for their technical validity and consistency with
the NCP and relevant EPA guidance. Typically, the Agency must review
and approve these plans before PRPs can begin any site activities. Any
disagreements that arise between EPA and PRPs over the contents of the
plans should be resolved according to the procedures set forth in the
dispute resolution section of the relevant EPA/PRP Agreement.
Community Relations
EPA is responsible for developing and implementing an effective
community relations program, regardless of whether RI/FS activities are
Fund-financed or conducted by PRPs. At State-lead enforcement sites,
funded by EPA under Superfund Memoranda of Agreement (see the "Draft
Guidance on Preparation of a Superfund Memorandum of Agreement (Octo-
ber 5, 1987 - OSWER Directive No. 9375.0-01)), the State has the respon-
sibility for development and implementation of a community relations
program. PRPs may, under certain circumstances, assist EPA or the State
in implementing the community relations activities. For example, PRPs
may wish to participate in community meetings and in preparing fact
sheets. PRP participation in community relations activities would, how-
ever, b« at the discretion of the Regional Office, or the State, and
would require oversight by the lead-agency. EPA will not under any cir-
cumstances negotiate press releases with PRPs.
EPA designs and implements community relations activities according
to CERCLA and the NCP. A Community Relations Plan must be developed by
EPA for all NPL sites as described by the EPA guidance, "Community Rela-
tions in Superfund: A Handbook" (U.S. EPA, 1988 - OSWER Directive
No. 9230.0-03). The Community Relations Plan must be independent of
negotiations with PRPs. Guidance for conducting community relations
activities at Superfund enforcement sites is
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specifically addressed by Chapter VI of the Handbook and the EPA memo
entitled "Community Relations Activities at Superfund Enforcement
Sites—Interim Guidance" (November 1988 - OSWER Directive
No. 9230.Or3B). In some instances the decision regarding PRP participa-
tion in community relations activities will be made after the Community
Relations Plan has been developed. As a result, the plan will need to
be modified by EPA to reflect Agency and PRP roles and responsibilities.
EPA, or the State, will provide the Community Relations Plan to all
interested parties at the sane time. In general, if the case has not
been referred to the Department ot Justice (DOJ) for litigation, com-
munity relations activities during the RI/FS should be the same for
Fund- and PRP-lead sites. If the case has been (or may potentially be)
referred to DOJ for litigation, constraints will probably be placed on
the scope of activities. The EPA Community Relations Plan may be modi-
fied after consultation with the technical enforcement staff, the
Regional Counsel and other negotiation team members, including, if the
case is referred, the lead DOJ or Assistant United States Attorneys
(i.e., the litigation team). This technical and legal staff must be
consulted prior tc any public meetings or dissemination of fact sheets
or other information; approval must be obtained prior to releases of
information and discussions of technical information in advance. PRP
participation in implementing community relations activities will be
subject to EPA (or State) approval in administrative settlements and
EPA/DOJ in civil actions. Key activities specific to community relations
programs for enforcement sites include the following: ^
o Public Review of Work Plans for Administrative Orders
The PRP Work Plan, as approved by EPA, is incorporated into the
Administrative Order (or Consent Decree). Once the Agreement is signed,
it becomes a public document. Although there is no requirement for
public comment on an Administrative Order, Regional staff are encouraged
to announce, after the Order is final, that the PRP is conducting the
RI/FS. Publication of notice and a corresponding 30-day comment period
is required however, for Consent Decrees.
o Availability of RI/FS Information from the PRPs
PRPs, in agreeing to conduct the RI/FS, must also agree to provide
all information necessary for EPA to implement a Community Relations
Plan. The Agreement should identify the types of information that PRPs
will provide, and contain conditions concerning the provision of this
information. EPA should provide the PRPs with the content of the plan
so that the PRPs can fully anticipate the type of information that will
be made public. All information submitted by PRPs will be subject to
public inspection (i.e., available through Freedom of Information Act
requests, public dockets, or the administrative record) unless the
information meets an exemption. An example would be if the information
is deemed either as enforcement sensitive by EPA, or business confi-
dential by EPA (based on the PRPs' representations), in conformance with
40 CFR Part 2.
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Development of the ATSDR Health Assessment
Section 104(j)(6) of CERCLA requires the Agency for Toxic Substances
and Disease Registry (ATSDR) to perform health assessments at all NPL
facilities according to a specified schedule. The purpose of the health
assessment is to assist in determining whether any current or potential
threat to human health exists and to determine whether additional infor-
mation on human exposure and associated health risks is needed.
The EPA remedial project manager (RPM) should coordinate with the
appropriate ATSDR Regional representative for initiation of the health
assessment. In general, the health assessment should be initiated at
the start of the RI/FS. The ATSDR Regional representative will provide
information on data needs specific to performing a health assessment to
ensure that all necessary data will be collected during the RI.
The RPM and the ATSDR Regional representative should also coordinate
the transmission and review of pertinent documents dealing with the extent
and nature of site contamination (i.e., applicable technical memoranda
and the draft RI) . As ATSDR has no provisions for withholding documents,
if requested by the public, the RPM must discuss enforcement sensitive
documents and drafts with the ATSDR Regional representative rather than
providing copies to them. This will ensure EPA's enforcement confiden-
tiality. Further guidance on coordination of RI/FS activities with ATSDR
can be found in the document entitled "Guidance for Coordinating ATSDR
Health Assessment Activities with the Superfund Remedial Process"
(March 1987 - OSWER Directive No. 9285.4-02).
Identification of Oversight Activities
EPA will review RI/FS plans and reports as well as provide field
oversight of PRP activities during the RI/FS. To ensure that adequate
resources are committed and that appropriate activities are performed,
EPA should develop an oversight plan that defines the oversight activi-
ties that must be performed including EPA responsibilities, RI/FS prod-
ucts to be reviewed, and site activities that EPA will oversee. In
planning for oversight, EPA should consider such factors as who will be
performing oversight and the schedule of activities that will be moni-
tored. A tracking system for recording PRP milestones should be devel-
oped. This system should also track activities performed by oversight
personnel and other appropriate cost items such as travel expenses.
Identification and Procurement of EPA Assistance
In accordance with Section 104(a)(1) EPA must arrange for a quali-
fied party to assist in oversight of the RI/FS. The following section
provides guidance for identifying and procuring such assistance for EPA
activities.
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o Assistance for EPA Activities
As specified in Section 104(a)(l), EPA is required to contract with
or arrange for a qualified person to assist in oversight of the RI/FS.
Qualified individuals are those groups with the professional qualifica-
tions, expertise, and experience necessary to provide assurance that the
Agency is conducting appropriate oversight of PRP RI/FS activities.
Normally, EPA will obtain oversight assistance either through the
Technical Enforcement Support (TES) contract, the Alternative Remedial
Contracts Strategy Contract (ARCS), or occasionally through the Remedial
Action (REM) contracts. In some cases oversight assistance may be
provided by States through the use of Cooperative Agreements. Oversight
assistance may also be obtained through the U.S. Army Corps of Engineers
or other governmental agencies; interagency Agreements should be utilized
to obtain such assistance.
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ATTACHMENT III
REVIEW AND OVERSIGHT OF THE RI/FS
Review of Plans, Reports, and Records
EPA will review all RI/FS products which are submitted to the Agency
as specified in the Work Plan or Administrative Order. PRPs should
ensure that all plans, reports, and records are comprehensive, accurate,
and consistent in content and format with the NCP and relevant EPA guid-
ance. After this review process, EPA will either approve or disapprove
the product. If the product is found to be unsatisfactory, EPA will
notify the PRPs of the discrepancies or deficiencies and will require
corrections within a specified time period.
o Project Plans
EPA will review all project plans that are submitted as deliver-
ables in fulfillment of the Agreement. These plans include the Work
Plan, the Sampling and Analysis Plan (including both the Field Sampling
Plan and the Quality Assurance Project Plan), and the Health and Safety
Plan. If the initial submittals are not sufficient in content or scope,
the RPM will request that the PRPs submit revised document(s) for review.
EPA does not "approve" the PRP's Health and Safety Plan but rather, it
is reviewed to ensure the protection of public health and the environment.
The PRP's Work Plan and Sampling and Analysis Plan, on the other hand,
must be reviewed and approved prior to the initiation of field activities.
Conditional approval to these plans may be provided in order to initiate
field activities in a more timely manner.
The PP.Ps may be required to develop additional Work Plans or modify
the initial Work Plan contained in or created pursuant to the Agreement.
These changes may result from the need"to: (1) re-evaluate the RI/FS
activities due either to changes in or unexpected site conditions;
(2) expand the initial Work Plan when additional detail is necessary; o'r
(3) modify or add products to the Work Plan based on new information
(e.g., a new population at risk). EPA will review and approve all Work
Plans and/or modifications to Work Plans once they are submitted for
review.
o Reports
PRPs will, at a minimum, submit monthly progress reports, technical
memorandums or reports, and the draft and final RI/FS reports as
required in the Agreement. To assist in the development of the RI/FS
and review of documents, additional deliverables may be specified by the
Region and included in the Agreement. These reports and deliverables
will be reviewed by EPA to ensure that the activities specified in the
Order and approved Work Plan are being properly implemented. These
reports will generally be submitted according to the conditions and
schedule set forth in the Agreement. Elements of the PRP reports are
discussed below.
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Monthly Progress Reports - The review of monthly progress reports
is an important activity performed during oversight. These reports
should provide sufficient detail to allow E?A to evaluate the past
and projected progress of the RI/FS. PRPs should submit these writ-
ten progress reports to the RPM. The report should describe the
actions and decisions taken during the previous month and activities
scheduled during the upcoming reporting period. In addition, tech-
nical data generated during the month (i.e., analytical results)
should be appended to the report. Progress reports should also
include a detailed statement of the manner and extent to which the
procedures and dates set forth in the Agreement/Work Plan are being
met. Generally, EPA will determine the adequacy of the performance
of the RI/FS by reviewing the .following subjects discussed in pro-
gress reports:
o Technical Summary of Work
The monthly report will describe the activities and accomplish-
ments performed to date. This will generally include a descrip-
tion of all field work completed, such as sampling events and
installation of wells; a discussion of analytical results
received; a discussion of data review activities; and a dis-
cussion of the development, screening, and detailed analysis
of alternatives. The report will also describe the activities
to be performed during the upcoming month.
o Schedule
EPA will oversee PRP compliance with respect to those sched-
ules specified in the Order. Delays, with the exception of
those specified under the Force Majeure clause of the Agree-
ment, may result in penalties, if warranted. The RPM should
be immediately notified if PRPs cannot perform required
activities or cannot provide"the required deliverables in
accordance with the schedule specified in the Work Plan. In
addition, PRPs should notify the RPM when circumstances may
delay the completion of any phase of the work or when cir-
cumstances may delay access to the site. PRPs should also
provide to the RPM, in writing, the reasons for, and the
anticipated duration of, such delays. Any measures taken or
to be taken by the PRPs to prevent or minimize the delay
should be described including the timetables for implementing
such measures.
o Budget
The relationship of budgets to expenditures should be tracked
where the RI/FS is funded with a financial mechanism estab-
lished by the PRPs. If site activities require more funds
than originally estimated, EPA must be assured that the PRPs
are financially able to undertake additional expenditures.
While EPA does not have the authority to review or approve a
PRP budget, evaluating costs during the course of the RI/FS
allows EPA to effectively monitor activity to ensure timely
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completion of RI/FS activities. If the PRPs run over budget,
EPA must be assured that they can continue the RI/FS activi-
ties as scheduled. Therefore, if specified in the Agreement,
PRPs should submit budget expenditures and cost overrun infor-
mation to EPA. Budget reports need not present dollar amounts,
but should indicate the relationship between remaining avail-
able funds and the estimate of the costs of remaining activities.
o Problems
Any problems that the PRPs encounter which could affect the
satisfactory performance of the RI/FS should be brought to the
immediate attention of EPA. Such problems may or may not be a
force majeure event, or caused by a force majeure event. EPA
will review problems and advise the PRPs accordingly. Problems
which may arise include, but are not limited to:
Delays in mobilization or access to necessary equipment;
Unanticipated laboratory/analytical time requirements;
Unsatisfactory QA/QC performance;
Requirements for additional or more complex sampling;
Prolonged unsatisfactory weather conditions;
Unanticipated site conditions; and
Unexpected, complex community relations activities.
Other Reports - All other reports, such as technical reports and
draft and final RI/FS reports, should be submitted to EPA according
to the schedule contained in the Order or the approved Work Plan.
EPA will review and approve these reports as they are submitted.
Suggested formats for the RI/FS reports are presented in the RI/FS
Guidance.
o Records
PRPs should preserve all records, documents, and information of any
kind relating to the performance of work at the site for a minimum of
6 years after completion of the work and termination of the Administra-
tive Order. After the 6-year period, the PRPs should offer the records
to EPA before their destruction.
Document control should be a key element of all recordkeeping. The
following activities require careful recordkeeping and will be subject
to EPA oversight:
Administration - PRP administrative activities should be accurately
documented and recorded. Necessary precautions to prevent errors
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or the loss or misinterpretation of data should be. taken. At a
minimum, the following administrative actions should be documented
and recorded:
Contractor work plans, contracts, and change orders;
Personnel changes;
Comnunications between and among PRPs, the State, and EFA
officials regarding technical aspects of the KI/FS?
Permit application and award (if applicable); and
Cost overruns.
Technical Analysis - Samples and data should be handled according
to procedures set forth in the Sampling and Analysis Plan. Documen-
tation establishing adherence to these procedures should include:
Sample labels;
Shipping forms;
Chain-of-custody forms; and
Field log books.
All analytical data in the RI/FS process should be managed as set
forth in the Sampling and Analysis Plan. Such analytical data may
be the product of:
Contractor laboratories;
Environmental and public health studies; and
Reliability, performance, and implementability studies of
remedial alternatives.
Decision Making - Actions or communications among PRPs that involve
decisions affecting technical aspects of the RI/FS should be docu-
mented. Such* actions and communications include those of the proj-
ect manager (or other PRP management entity), steering committees,
or contractors.
o Administrative Record Requirements
Section 113(k) of CERCLA requires that the Agency establish an admin-
istrative record upon which the selection of a response action is based.
A suggested list of documents which are most likely to be included in
any adequate administrative record is provided in the memorandum entitled
"Draft Interim Guidance on Administrative Records for Selection of CERCLA
Response Actions" (June 23, 1988 - OSWER Directive No. 9833.3A). More
detailed guidance will be forthcoming, including guidance provided in
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the revisions to the NCP. There are, however, certain details associ-
ated with compiling and maintaining an administrative record that are
unique to PRP RI/FS activities.
EPA is "responsible for compiling and maintaining the administrative
record, and generating and updating an index. If EPA and the PRPs
mutually agree, the PRPs may be allowed to house and maintain the admin-
istrative record file at or near the site; they may not, however, be
responsible for the actual compilation of the record. Housing and main-
taining the administrative record would include setting up a publicly
accessible area at or near the site and ensuring that documents remain
and are updated as necessary. EPA must always be responsible for decid-
ing whether documents are included in the administrative record; trans-
mitting records to the PRPs; and maintaining the index to the repository.
The information which may comprise the administrative record must
be available to the public from the time an RI/FS Work Plan is approved
by EPA. Once the Work Plan has been approved the PRPs must transmit to
EPA, at reasonable, regular intervals, all of the information that is
generated during the RI/FS that is related to selection of the remedy.
The required documentation should be specified in the Administrative
Order. The Agreement should also specify those documents generated prior
to the RI/FS that must be obtained from the PRPs for inclusion in the
record file. This may include any previous studies conducted under State
or local authorities, management documents held by the PRPs such as haz-
ardous waste shipping manifests, and other information about site charac-
teristics or conditions not contained in any of the above documents.
Field Activities
o Field Inspections
Field inspections are an important oversight mechanism for determin-
ing the adequacy of the work performed: EPA will therefore conduct field
inspections as part of its oversight responsibilities. The oversight
inspections should be performed in a way that minimizes interference
with PRP site activities or undue complication of field activities. EPA
will take corrective steps, as described in Section VII and Attachment IV
of this appendix, if unsatisfactory performance or other deficiencies
are identified.
Several field-related tasks may be performed during oversight inspec-
tions. These tasks include:
On-site presence/inspection - As specified in Section 104(e)(3),
EPA reserves the right to conduct on-site inspections at any reason-
able time. EPA will therefore establish an on-site presence to
assure itself of the quality of work being conducted by PRPs. At a
minimum, field oversight will be conducted during critical times,
such as the installation of monitoring wells and during sampling
events. EPA will focus on whether the PRPs adhere to procedures
specified in the SOW and Work Plan(s), especially those concerning
QA/QC procedures. Further guidance regarding site characterization
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activities is presented in the RI/FS Guidance, the "Compendium of
Superfund Field Operations Methods" (August 1987 - OSWER Directive
No. 9355.0-141), the "RCRA Ground Water Technical Enforcement
Guidance Document" (September 1986 - OSWER Directive No. 9950.1),
the NE1C Manual for Groundwater/Subsurface Investigations at
Hazardous Waste Sites (U.S. EPA, 1981c), and OWPE's forthcoming
"Guidance on Oversight of Potentially Responsible Party Remedial
Investigations and Feasibility Studies."
Collection and analysis of samples - EPA may collect a number of
QA/QC samples including blank, duplicate, and split samples. The
results of these sample analyses will be compared to the results of
PRP analyses. This comparison will enable EPA to identify poten-
tial quality control problems and therefore help to evaluate the
quality of the PRP investigation.
Environmental Monitoring - EPA may supplement any PRP environmental
monitoring activity. Such supplemental monitoring may include air
or water studies to determine additional migration of sudden
releases that may have occurred as a result of site activities.
o QA/QC Audits
EPA may either conduct, or require the PRPs to conduct (if speci-
fied in the Agreement), laboratory audits to ensure compliance with pro-
per QA/QC and analytical procedures, as specified in the Sampling and
Analysis Plan. These audits will involve on-site inspections of labora-
tories used by PRPs and analyses of selected QA/QC samples. All proced-
ures must be in accordance with those outlined in The User's Guide to
the Contract Laboratory Program, (U.S. EPA, 1986) or otherwise specified
in the Sampling and Analysis Plan.
o Chain-of-Custody
Chain-of-custody procedures will be evaluated by EPA. This evalua-
tion will focus on determining if the PRPs and their contractors adhere
to the procedures set forth in the Sampling and Analysis Plan. Proper
chain-of-custody procedures are described in the National Enforcement
Investigation Center (NEIC) Policies and Procedures Manual, (U.S. EPA,
1981b).Evaluation of chain-of-custody procedures will occur during
laboratory audits as well as during on-site inspections of sampling
activities.
Meetings
Meetings between EPA, the State, and PRPs should be held on a regu-
lar basis (as specified in the Agreement) and at critical times during
the RI/FS. Such critical times may at a minimum include when the SOW
and the Work Plan are reviewed, the RI is in progress and completed,
remedial alternatives are developed and screened, detailed analysis of
the alternatives is performed, and the draft and final RI/FS reports are
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submitted. These meetings will discuss overall progress, discrepancies
in the work performed, problems encountered in the performance of RI/FS
activities and their resolution, community relations, and other related
issues and concerns. While meetings may be initiated by either the PRPs
or EPA at any time, they will generally be conducted at the stages of
the RI/FS listed below.
o Initiation of Activities
EPA, the State, and the PRPs may meet at various times before field
activities begin to discuss the initial planning of the RI/FS. Meetings
may be arranged to discuss, review, and approve the SOW? to develop the
EPA/PRP Agreement; and to develop, review, and approve the Work Plan.
o Progress
EPA may request meetings to discuss the progress of the RI/FS.
These meetings should be held at least quarterly and will focus on the
items submitted in the monthly progress reports and the findings from
EPA oversight activities. Any problems or deficiencies in the work will
be identified and corrective measures will be requested (see
Section VIII and Attachment IV) of this appendix.
o Closeout
EPA may request a closeout meeting upon completion of the RI/FS.
This meeting will focus on the review and approval of the final RI/FS
report, termination of the RI/FS Agreement, and any final on-site activi-
ties which the PRPs may be required to perform. These activities may
include maintaining the site and ensuring that fences and warning signs
are properly installed. The transition to remedial design and remedial
action will also be discussed during this meeting.
Special Studies
EPA may determine that special studies related to the PRP RI/FS are
required. These studies can be conducted to verify the progress and
results of RI/FS activities or to address a specific complex or contro-
versial issue. Normally, special studies are performed by the PRPs;
however, there may be cases in which EPA will want to conduct the
independent studies. The PRPs should be informed of any such studies
and given adequate time to provide necessary coordination of site per-
sonnel and resources. If not provided for in the Agreement, modifica-
tions to the Work Plan may be required.
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ATT&CHMENT IV
CONTROL OF ACTIVITIES
Identification of Deficiencies
Oversight activities may identify unsatisfactory or deficient PRP
performance. The determination of such performance may be based upon
findings such as:
o Work products are inconsistent with the SOW or Work Plan;
o Technical deficiencies; exist in submittals or other RI/FS
products;
o Unreasonable delays occur while performing RI/FS activities;
and
o Procedures are inconsistent with the NCP.
Corrective Measures
The need to perform corrective measures may arise in the event of
deficiencies in reports or other work products, or unsatisfactory per-
formance of field or laboratory activities. When deficiencies are iden-
tified corrective measures may be sought by: (1) notifying the PRPs;
(2) describing the nature of the deficiency; and (3) either requesting
the PRPs to take whatever actions; they regard as appropriate or setting
forth appropriate corrective measures. The following subsections
describe this process for each of the two general types of activities
that may require corrective measures.
o Corrective Measures Regarding Work Products
Agency review and approval procedures for work products generally
allow three types of responses: (1) approval; (2) approval with modifi-
cations; and (3) non-approval. Non-approval of a work product (includ-
ing project plans) immediately constitutes a notice of deficiency. EPA
will immediately notify the PRPr, if any work product is not approved and
will explain the reason for such a finding.
Approval with modifications will not lead to a notice of deficiency
if the modifications are made by the PRPs without delay. If the PRPs
significantly delay in responding to the modifications, the RPM would
issue a notice of deficiency to the PRP project manager detailing the
following elements:
A description of i:he deficiency or a statement describing
in what manner tins work product was found to be deficient
or unsatisfactory;
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Modifications that the PFPs should make in the work prod-
uct to obtain approval;
A request that the PRPs prepare a plan, if necessary, or
otherwise identify actions that will lead to an accept-
able work product;
A schedule for submission of the corrected work product;
An invitation to the PRPs to discuss the matter in a con-
ference; and
A statement of the possibility of EPA takeover at the
PRPs1 expense, EPA enforcement, or penalties (as appro-
priate) .
o Corrective Measures Regarding Field Activities
When the lead agency discovers that the PRPs (or their contractors)
are performing the RI/FS field work in a manner that is inconsistent
with the Work Plan, the PRPs should be notified of the finding and asked
to voluntarily take appropriate corrective measures. The request is
generally made at a progress meeting, or, if immediate action is required,
at a special meeting held specifically to discuss the problem. Zf correc-
tive measures are not voluntarily taken, the RPM should, in conjunction
with appropriate Regional Counsel, issue a notice of deficiency contain-
ing the following elements:
A description of the deficiency;
A request for an explanation of the failure to perform
satisfactorily and a plan for addressing the necessary
corrective measures}
A statement that failure to present an explanation may be
taken as an admission that there is no valid explanation}
Air; invitation to discuss th» matter in a conference
(where appropriate);
- A statement that stipulates penaitis* My accrue or are
accruing, project termination may occur, and/or civil
action may be initiated if appropriate actions are not
taken to correct, the deficiency} and
A description of the potential liabilities incurred in
the event that appropriate actions are not taken.
Modifications to the Work Plan/Additional Work
Under the Administrative Order (or Consent Decree), PRPs agree to
complete the RI/FS, including the tasks required under either the orig-
inal Work Plan or a subsequent or modified Work Plan. This may
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include determinations and evaluations of conditions that are unknown at
the time of execution of the Agreement. Modifications to the original
RI/FS Work Plan are frequently z-nguired as field work progresses. Work
not explicitly covered in the Work Plan is often required and therefore
provided for in the Order. This work is usually identified during the
RI and is driven by the need for further information in a specific area.
In general, the Agreement should provide for fine-tuning of the RI, or
the investigation of an area previously unidentified. As it becomes
clear what additional work in necessary, EPA will notify the PRPs of the
work to be performed and determine a schedule for completion of the work.
EPA must ensure that clauses for modifications to the Work Plan are
included in the Agreement so that the PRPs will carry out the modifica-
tions as the need for them is identified. To facilitate negotiation on
these points, EPA may consider one or more of the following provisions
in the Agreement for addressing such situations:
Defining the limits of additional work requirements;
Specifying the dispute resolution process for modified Work
Plans and additional work requirements;
Defining the applicability of stipulated penalties to any addi-
tional work which the PRPs agree to undertake.
Dispute Resolution
As discussed elsewhere in this guidance, the RI/FS Order developed
between EPA and the PRPs sets forth the terms and conditions for con-
ducting the RI/FS. An element of this Agreement is a statement of the
specific steps to be taken if a dispute arises between EPA (or its
representatives) and the PRPs. These steps should be well defined and
agreed upon by all signatories to the Agreement.
A dispute with respect to the Order is followed by a specific
period of discussion with the PRPs. A^*:er the discussion period, EPA
issues a final decision which becomes incorporated into the Agreement.
Administrative Order should clarify that with respect to all submittals
and work performed, EPA will be the final arbiter. The court, on the
other hand, is the final arbiter for the Consent Decrees.
Penalties
Any initiative for PRPs to properly conduct the RI/FS and correct
any discrepancies discovered during the conduct of the Agreement, EPA
should initiate stipulated penalties. Section 121 provides up to $25,000
per day in stipulated penalties J:or violations of a Consent Decree while
Section 122 allows EPA to seek or impose civil penalties for violations
of Administrative Orders.3 Penalties should begin to accrue on the first
3In order to provide for stipulated penalties in an Administrative Order
the parties must voluntarily include them in the terms of the Agreement.
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day of th« deficiency and continue to be assessed until the deficiency
is corrected. The type of violation (i.e., reporting requirements
vs. implementation of construction requirements) , as veil as the amounts,
should be .specified as stipulated penalties in the Agreement to avoid
negotiations on this point which nay delay the correction. The amounts
should be set pursuant to the criteria of Section 109 and as such oust
take into account the nature, circumstances, extent, and gravity of the
violations as well as the PRPs' ability to pay, prior history of viola-
tions, degree of culpability, and the economic benefit resulting from
nonconpliance. Additional information on stipulated penalties can be
found in OECM's "Guidance on the Use of Stipulated Penalties in Hazard-
ous Haste Consent Decrees" (September 27, 1987).
Project Takeover
Generally. EPA will consult with PRPs to discuss deficiencies and
corrective measures. If these discussions fail, EPA has two options:
(1) pursue legal action to force the PRPs to continue the work; or
(2) take over tha> RI/TS. If taking legal action will not significantly
delay implementation of necessary remedial or removal actions, EPA may
commence civil action against the noncomplying PHP to enforce the Admin-
istrative Order. Under a Consent Decree, the matter would be preeented-
to the court in which the Decree was filed to enforce the provisions tff
the Decree.
If a delay In RI/TS activities endangers public health and/or the
environment or will significantly delay implementation of necessary
remedial action*, EPA should move to replace the PRP activities with
Fund-financed actions. The RPM will take the appropriate steps to
assume responsibility for the RI/FS, including issuing a stop-work order
to the PRPs and notifying the EPA remedial contractors. In issuing stop
work orders, RPMs should be aware that Fund resources may not be automat-
ically available-. But, in the case of PRP actions which threaten human
health or the environment, then may be no other course of action. Once
this stop work order is issued, a fund-financed R2/FS will be undertaken
consistent with KS*. funding
WDR378/029
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