UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
ftPR2
OSWER Directive # 9835.4-2b
MEMORANDUM
SUBJECT: Accelerating Potentially Responsible Party Remedial
Design Starts: Implement-ing_the^3 0-Day study
FROM:
Bruce M. Diamond, Directc
Office of Waste Programs
William A.
Office of Enforcement
cement
7
ent Counsel for Superfund
TO:
Waste Management Division Directors, Regions I-X
Regional Counsel, Regions I-X
This memorandum implements a recommendation of the 30-day
study concerning accelerating Remedial Design starts.
SUMMARY OF POLICY
Regions should use all available opportunities to gain
potentially responsible party (PRP) commitment to start the
Remedial Design (RO) as soon as possible after signature of a
Record of Decision (ROD).
At a minimum, when a Region negotiates a Remedial
Design/Remedial Action (RD/RA) consent decree with a PRP, the
Region should make every effort to secure PRP performance of the
RD no later than upon lodging of a consent decree in federal
district court. Regions should use the model language for this
provision, as set forth in Section VI of the Model Consent Decree
for RD/RA.
Regions are strongly encouraged to use other strategies to
start PRP-lead Rds prior to consent decree lodging. Examples
include: amendment of a remedial investigation/feasibility study
(RI/FS) consent order, negotiation of an RD consent order, and
stipulation in pending litigation.
BACKGROUND
In June 1991, the Administrator requested that the Office of
Solid Waste and Emergency Response create a task force to
identify methods for accelerating the pace of Superfund cleanups.
One identified source of cleanup delay is the lapse of time
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OSWER Directive #9835.4-2b
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between ROD signature and start of a PRP-lead RD. A factor in
this delay is the time taken to lodge and enter a consent decree
memorializing PRP commitment to do both RD and RA. The task
force recommended, in a document informally known as the "30-day
study," that Regions seek and use ways to obtain RD start prior
to the entry of the consent decree.
The current timeframe from signature of a ROD to RD start at
PRP-lead sites can be significant. Major events in that period
(ROD-to-RD start) include negotiation with PRPs, preparation and
signature of a consent decree, and lodging and entry of that
decree. The period after negotiations (successfully) conclude
can be extensive, depending on public comment on the decree,
court calendars, etc. From the public's perspective, the result
is site cleanup time unnecessarily lost.
Numerous options are available, depending on the
circumstances of the Region's relationship with PRPs at a
particular site and the complexity or uncertainty of the remedy,
to accelerate RD start substantially in advance of court entry of
a consent decree.
PREVIOUS AGENCY ACTION
In 1988, the Agency issued guidance describing several
mechanisms by which a PRP could initiate the RD prior to the
entry of a consent decree, "Initiation of PRP-financed Remedial
Design in Advance of Consent Decree Entry," OSWER Directive
#9835.402A (November 18, 1988). Included in that Directive was
model consent order language.
In 1991, a Regional-Headquarters workgroup outlined several
innovative ideas for accelerating RD starts where PRPs will be
performing the response action. The methods identified include
greater use of administrative orders to start RD shortly after
ROD signature, as well as consent decree negotiation strategies
seeking RD start no later than at consent decree lodging.
Headquarters discussed these administrative options with the
Hazardous Waste Management Branch Chiefs in April 1991 and at the
Section Chiefs meeting in June 1991.
In June 1991, the Agency issued the "Model CERCLA RD/RA
Consent Decree," OSWER Directive #983517 (June 21, 1991) (Model
Consent Decree). The Model Consent Decree provides that
performance of the RD will commence upon lodging of the
agreement.
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OSWER Directive #9835.4-2b
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STATEMENT OF POLICY
In negotiating for PRP conduct of site remediation, Regions
should seek PRP commitment to perform RD start as soon after ROD
signature as possible; at a minimum, this should be no later than
upon lodging of a consent decree for RD/RA.
1. Model Consent Decree RD Language
If a PRP will be performing the RD/RA through a consent
decree, the Regions should employ the Model Consent Decree
language for performance of RD. As discussed above, the Model
Consent Decree, Section VI., paragraph 11 (Remedial Design),
provides that RD activities will begin upon lodging of the
consent decree in district court.
While Regions should include this provision in the great
majority of cases, there may be situations where it may not be
appropriate at a particular site. For example, if the remedy is
highly controversial and the initiation of RD at lodging of the
consent decree could be seen as inconsistent with full public
participation, the Region may decide not to use the procedures in
this guidance.1 (See section 5 below.)
2. Administrative Alternatives for Early RD Start.
Where appropriate, Regions are strongly encouraged to secure
PRP commitment to RD start in advance of consent decree lodging
(i.e., as soon as possible after ROD signature). For example, if
a PRP performed the RI/FS through an administrative order on
consent and indicates it will perform the RD/RA, it may be
appropriate to amend the completed RI/FS order, to have some or
all of the RD started while overall negotiations for the RD/RA
consent decree continue.2
1 Please note that the performance of Remedial Design is not
subject to the public participation procedures under Section 122(d)
of CERCLA. The Agency considers Remedial Design to be a removal
action, outside the scope of Section 122(d)(l), which covers
proposed agreements concerning remedial action under Section 106 of
CERCLA. Thus, while the Agency may voluntarily agree to subject
the terms of the Remedial Design portion of a proposed Section 106
Remedial Design/Remedial Action consent decree to the procedures of
section 122(d), there is no legal requirement to do so.
2 This administrative alternative is most likely to be a
viable option where the PRPs who performed the RI/FS are the same
parties which agree to implement the RD/RA.
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If a Region receives a good faith offer for the RD/RA during
the special notice process, the Region should consider asking the
PRPs to complete the RD through an administrative order on
consento This option necessitates issuance of two settlement
documents; an administrative order and consent decree. Under
this administrative option a Region could negotiate separately
the consent order from th© consent decre© or negotiate both
simultaneously, T© reduce resources when negotiating the
agreements simultaneously, th© Region could use th© consent
decree language agreed upon by the PRPs as the basis for several
of the provisions in the administrative order (incorporate these
provisions by reference).
A Region may also consider an administrative option if,
after th© ROD is issued, a Region continues searching for
additional PRPs to perform the RA» Settling with several PRPs to
only perform the RD in this situation is appropriate if it would
help to facilitate performance of th© RA by other PRPs and would
not delay initiation of the RA.
3. Stipulation in Pending Litigation
When there is pending litigation involving the Agency and
PRPs, and the PRPs agree to perform the RD/RA through a consent
decree, the PRPs and the Agency could enter into a stipulation
filed with the court, whereby the PRPs agree to perform the RD
without waiting for lodging of the consent decree.3
4. Relationship of Administrative Action to RD/RA Consent
Decree
If a Region initially uses an administrative option for the
RD, but then lodges a RD/RA consent decree in court, th© Region
could have the administrative agreement subsumed into th© overall
consent decree upon entry in court. Another option is to have
the administrative agreement terminate upon court entry of th©
consent d@cree. Where performance of th® RD is through an
administrative order, th© Region should conduct any unresolved
RD/RA or RA settlement negotiations and take all other steps
possible to ensure minimum delay between completion of th© RD and
performance of the RA. In all cases, the Regions should
implement the administrative action in a manner that avoids delay
of the initiation of RA.
3 There is model language for th© stipulation to perform the
RD. See "Initiation of PRP-financed Remedial Design in Advanc© of
Consent Decree Entry/" OSWER Directive #9835. 402A (November 18,
1988).
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5. Notification to Headquarters
In order to maintain national, consistency, if a Region plans
to execute an RD/RA consent decree which does not provide for RD
start, at a minimum, upon lodging of the consent decree, the
Region should verbally notify the Branch Chief, Compliance
Branch, CERCLA Enforcement Division. In this notification a
Region should delineate any attempts made to secure PRP RD start
prior to entry of the consent decree, and explain why such
efforts were not successful or appropriate at a given site.
PURPOSE AND USE OF THIS GUIDANCE
This policy and any internal procedures adopted for its
implementation are intended exclusively as guidance for employees
of the U.S. Environmental Protection Agency. This guidance does
not constitute rulemaking by the Agency and may not be relied
upon to create a right or a benefit, substantive or procedural,
enforceable at law or in equity, by any person. The Agency may
take action at variance with this guidance or its internal
implementing procedures.
FURTHER INFORMATION
For further information concerning this memorandum, please
contact Gary Worthman in the Office of Waste Programs Enforcement
at FTS (202) 260-5646.
cc: Henry L. Longest
Lisa K. Friedman
Waste Management Branch Chiefs, Regions I-X
Regional Counsel Superfund Branch Chiefs, Regions I-X
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